The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS GRANTING DEFENDANTS CALIFORNIA DEPARMENT OF CORRECTIONS AND REHABILITATION AND CATE'S MOTION TO DISMISS (ECF Nos. 15, 27) OBJECTIONS DUE WITHIN FOURTEEN (14) DAYS
Plaintiff Edward Lee Thomas ("Plaintiff") a former state prisoner, initiated this action on August 31, 2012 pursuant to 42 U.S.C. Section 1983. (Compl., ECF No. 1.)
In the Complaint, Plaintiff raises claims under the Fourth and Fourteenth Amendments of the United States Constitution alleging that he was subjected to illegal seizure and incarceration. Plaintiff also alleges that certain Defendants are liable under Monell, and raises claims of false imprisonment, claims under Cal. Civil Code § 52.1, claims for intentional infliction of emotional distress, and claims for negligent infliction of emotional distress. His claims arise out of Defendants' alleged failure to restore his "good time credits" following a court decision changing the California Department of Corrections and Rehabilitation's schedule for determining forfeiture of credits. (Compl. at 4.) Defendants' failure to restore the credits resulted in Plaintiff being incarcerated for a longer period than necessary. (Id. at 5.)
Plaintiff names as Defendants (1) California Department of Corrections and Rehabilitation ("CDCR"); (2) J. Hartley, Warden of Avenal State Prison ("ASP"); (3) R. Ndoh, Associate Warden/Chief Disciplinary Officer with the CDCR; (4) J. Goumas, Correctional Counsel I with the CDCR; (5) B. Desilagua, Correctional Counselor II with the CDCR; (6) N. Lopez, Appeals Coordinator with the CDCR; (7) S.A. Bryant, Correctional Counselor II with the CDCR; (8) M. Cate, Secretary of the CDCR; and (9) Does 1-XX.
Plaintiff seeks general, special, exemplary, and punitive damages from the individual Defendants, as well as costs and reasonable attorneys' fees. (Compl. at 11-12.)
Defendants Hartley, Ndoh, Goumas, Desilagua, Lopez, Bryant, and Does have yet to be served in this action.
Defendants CDCR and Cate filed a motion to dismiss this action on January 29, 2013. (Defs.' Mot. Dismiss, ECF No. 15.) These Defendants argue that (1) the lawsuit is barred by the Eleventh Amendment, (2) the lawsuit is barred by Edwards v. Balisok, 520 U.S. 641 (1997) since it challenges the length of Plaintiff's confinement, (3) the lawsuit is barred by the doctrine of res judicata, (4) Plaintiff fails to state any claims against Defendant Cate in his individual capacity, and (5) the pendent state law claims should be dismissed because Plaintiff does not allege compliance with the Tort Claims Act.
Plaintiff filed opposition to the motion to dismiss on March 3, 2013. (Pl.'s Opp'n, ECF No. 17.) Defendants' time for filing a reply has passed and the motion is now ready for ruling. Local Rule 230.
II. SUMMARY OF PLAINTIFF'S COMPLAINT
Plaintiff alleges that he was issued four Rules Violation reports between 1998 and 2004 for distilling alcohol. (Compl. at 4.) He was ultimately found to have committed offenses under the California Code of Regulations and he forfeited good time credits for each incident. (Id.) In 2004, a California appellate court issued a decision forcing the CDCR to change its schedule for determining forfeiture of good time credits. (Id.) After this change, Plaintiff unsuccessfully pursued administrative methods to have his good time credits restored. (Id. at 4-5.) The individual Defendants named here have failed to restore Plaintiff's credits causing Plaintiff to have been illegally incarcerated for approximately eleven months. (Id. at 5.)
A motion to dismiss brought pursuant to Fed. R. Civ. P. 12(b)(6) tests the legal sufficiency of a claim, and dismissal is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011). In resolving a Fed. R. Civ. P. 12(b)(6) motion, the Court's review is generally limited to the operative pleading. Daniels-Hall v. National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010); Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007); Huynh v. Chase Manhattan Bank, 465 F.3d 992, 1003--04 (9th Cir. 2006); Schneider v. California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998).
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The Court must accept the well-pleaded factual allegations as true and draw all reasonable inferences in favor of the ...