The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner, proceeding without counsel and in forma pauperis, with an action filed pursuant to 42 U.S.C. § 1983. This action is proceeding on plaintiff's Eighth Amendment claims for excessive force against defendants Rosario and Easterling, and First Amendment retaliation claims against defendants Rosario, Garcia, Bickham, McGuire, Cappel, Singh, and Haviland. (Dkt. Nos. 45, 53.) Defendant Easterling moves to dismiss plaintiff's excessive force claim on the ground that plaintiff's claim is barred by Edwards v. Balisok, 520 U.S. 641, 646 (1997). In addition, defendants Bickham, McGuire, Cappel, Singh, and Haviland move to dismiss plaintiff's retaliation claims for failure to state a claim, or, in the alternative, because defendants are entitled to qualified immunity. As set forth more fully below, this court finds that the motion to dismiss should be granted in part, and denied in part.
II. Legal Standard for Motion to Dismiss
Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89 (2007), and construe the pleading in the light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir. 1999). Still, to survive dismissal for failure to state a claim, a pro se complaint must contain more than "naked assertions," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a claim upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949. Attachments to a complaint are considered to be part of the complaint for purposes of a motion to dismiss for failure to state a claim. Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir.1990).
A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). In general, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). The court has an obligation to construe such pleadings liberally. Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). However, the court's liberal interpretation of a pro se complaint may not supply essential elements of the claim that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the court "may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks omitted). However, under the "incorporation by reference" doctrine, a court may also review documents "whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiff's] pleading." Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (citation omitted and modification in original). The incorporation by reference doctrine also applies "to situations in which the plaintiff's claim depends on the contents of a document, the defendant attaches the document to its motion to dismiss, and the parties do not dispute the authenticity of the document, even though the plaintiff does not explicitly allege the contents of that document in the complaint." Id.
In considering a Rule 12(b)(6) motion, a district court generally may not take into account material beyond the complaint. IntriPlex Technologies, Inc. v. Crest Group, Inc., 499 F.3d 1048, 1052 (9th Cir. 2007). However, there are exceptions to the general rule. Under the "incorporation by reference" doctrine, we may consider "documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiff's] pleading." Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (alteration in original) (internal quotation marks omitted); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S. Ct. 2499, 168 L. Ed.2d 179 (2007) ("[C]courts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.").
Dunn v. Castro, 621 F.3d 1196, 1205 n.6 (9th Cir. 2010).
III. Alleged Excessive Force Claim - Defendant Easterling In the second amended complaint, plaintiff alleges that on August 5, 2008, Correctional Officer Presto informed plaintiff that he would have to take a cellmate; plaintiff declined, and asked to be placed in administrative segregation ("ad seg") instead. (Dkt. No. 51 at 3.) Correctional Officer Presto left and returned to his office. Minutes later, defendants Rosario, Easterling, and Durfey came into plaintiff's cell. (Id. at 4.) Defendant Easterling allegedly asked plaintiff if he refused a cellmate, and plaintiff said yes, and requested placement in ad seg. Plaintiff was handcuffed and escorted out of the building by defendant Rosario. Defendants Easterling and Durfey exited through a side door and met up with plaintiff and defendant Rosario in the yard. When plaintiff realized he was not being taken to ad seg, but was being taken to another building, plaintiff turned his head toward defendant Easterling and said, "please don't try to force me into a cell, [I] asked to go to ad seg." (Id.) Plaintiff alleges that defendant Rosario then said, "he's resisting, take him down?" (Id.) Plaintiff claims defendant Easterling responded: "take him down, now you're going to ad seg." (Id.)
Plaintiff alleges defendant Easterling pressed his alarm button, and claims defendant Rosario used excessive force in taking plaintiff to the ground. (Id.) Plaintiff claims he suffered injuries to his left shoulder and back. (Id. at 4, 7.) Plaintiff alleges defendant Easterling's order to use force was "unnecessary." (Id. at 7.)
Plaintiff received a Rules Violation Report ("RVR") S1-08-08-1142-R for "Resisting Staff Resulting in the Use of Force." (Dkt. No. 54-3 at 3-6.)*fn1 Plaintiff was found guilty at a disciplinary hearing, based on the findings and plaintiff attempted to break free from defendant Rosario's escort by abruptly stopping and trying to spin away, necessitating the use of force to gain control of plaintiff. Plaintiff was assessed a credit for forfeiture of ninety days. (Id.)
A. Favorable Termination Rule
A state prisoner's § 1983 claim is not cognizable if success on the claim would necessarily imply the invalidity of a still-valid sentence or disciplinary finding that affects the length of his incarceration. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Consequently, a prisoner's § 1983 challenge to disciplinary hearing procedures is barred if judgment in his favor would necessarily imply the invalidity of the resulting loss of good-time credits. Edwards, 520 U.S. at 646 (dismissing § 1983 action for declaratory relief and monetary damages because successful challenge to procedures used in disciplinary hearing would necessarily imply the invalidity of the punishment imposed). See also Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (explaining that "a state prisoner's § 1983 action is barred (absent prior invalidation) no matter the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings), if success in that action would necessarily demonstrate the invalidity of confinement or its duration" (emphasis omitted)). Put another way, a § 1983 claim is barred if the "plaintiff could prevail only by negating 'an element of the offense of which he has been convicted.'" Cunningham v. Gates, 312 F.3d 1148, 1153-54 (9th Cir. 2002) (citing Heck, 512 U.S. at 487 n.6). However, when the § 1983 claim does not necessarily implicate the underlying disciplinary action (or criminal conviction), it may proceed. See Muhammad v. Close, 540 U.S. 749, 751, 754-55 (2004) (Heck does not bar a prisoner's § 1983 suit when a favorable verdict would not affect his disciplinary conviction.)
In this case, plaintiff claims that defendant Easterling authorized defendant Rosario's use of force on August 5, 2008, but that the order to use force was unnecessary. (Dkt. No. 51 at 4, 7.) Plaintiff's allegation that the use of force was unnecessary contradicts the findings of the disciplinary hearing, where it was determined that petitioner's resistive actions necessitated the use of force. Therefore, any finding that no force was required would negate the resisting staff element of the disciplinary charge, thus invalidating the disciplinary conviction, and would negate the loss of good time credits. See Cunningham, 312 F.3d at 1153-54 ("an important touchstone is whether a § 1983 plaintiff could prevail only by negating 'an element of the offense of which he has been convicted.")
In opposition, plaintiff does not dispute the nature of his claim against defendant Easterling, but argues that this claim is not barred because plaintiff did not seek to expunge the RVR or to reinstate his time credits.*fn2 (Dkt. No. 55 at 3.) Plaintiff also argues that because he is a three strikes inmate serving an indeterminate sentence of 85 years to life, he is not entitled to receive prison conduct credits. (Id. at 4.)
However, because plaintiff's claim necessarily implies the invalidity of the disciplinary conviction, the nature of the relief sought cannot avoid the Edwards bar. Wilkinson, 544 U.S. at 81-82. In other words, whether or not plaintiff seeks to reinstate his time credits, and whether or not plaintiff was entitled to earn such credits, is of no consequence here. Resolution of plaintiff's claim against defendant Easterling would implicate an element of the offense underlying the disciplinary conviction, and therefore is barred by Edwards, 520 U.S. at 646, regardless of the relief sought in this action.
Accordingly, defendant Easterling's motion to dismiss should be granted, and plaintiff's excessive force claim should be dismissed without prejudice.*fn3
IV. Alleged Retaliation - Bickham, McGuire, Cappel, Singh, and Haviland
A. Plaintiff's Allegations - Verified Second Amended Complaint In the operative complaint, plaintiff alleges he was placed in ad seg on August 5, 2008, and on August 14, 2008, plaintiff transferred from ad seg to yard one. (Dkt. No. 51 at 5.) The next day, plaintiff told Sgt. Henry that plaintiff wanted to file an excessive force complaint concerning the August 5, 2008 incident. On August 16, 2008, plaintiff filed an administrative appeal claiming an excessive use of force on August 5, 2008. (Dkt. No. 38-3 at 4.) That same day, plaintiff was called to the office by defendant Bickham and Sgt. Henry, and plaintiff alleges defendant Bickham told plaintiff that if he continued with the excessive force complaint, plaintiff would be ...