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Edward Jones, Cdcr #K-52736 v. Nichols Correctional Counselor

April 18, 2013

EDWARD JONES, CDCR #K-52736 PLAINTIFF,
v.
NICHOLS CORRECTIONAL COUNSELOR
DEFENDANT.



The opinion of the court was delivered by: Barry Ted Moskowitz, Chief Judge United States District Court

ORDER: (1) GRANTING DEFENDANT'S COMPLAINT PURSUANT TO FED.R.CIV.P. 12(b)(6); and (2) DENYING PLAINTIFF"S , MOTION FOR APPLICATION FOR PRELIMINARY INJUNCTION MOTION TO DISMISS PLAINTIFF'S (ECF Nos. 10, 15)

Currently before the Court is Defendant's Motion to Dismiss Plaintiff's Complaint pursuant to Federal Rules of Civil Procedure 12(b)(6). (ECF No. 10.) Plaintiff has filed an Opposition to Defendant's Motion to Dismiss (ECF No. 11) to which Defendant has filed a Reply (ECF No. 12.) In addition, Plaintiff has filed a "Motion for Application for Preliminary Injunction." (ECF No. 15.)

I. Plaintiff's Factual Allegations

In 2010, Plaintiff was housed at Centinela State Prison ("CEN").*fn1 (See Compl. at 1, 3.) On April 2, 2010, Plaintiff was issued a Rules Violation Report ("RVR") in which he was charged with "conspiracy to traffic a controlled substance into a state prison with the intent to distribute." (Id. at 3.) This matter was referred to the District Attorney's Office who chose not to officially charge Plaintiff. (Id.) While these disciplinary charges were pending at CEN, however, Plaintiff's right to have family visits was suspended. (Id.) On September 23, 2010, Plaintiff was found "not guilty" of these charges at a prison disciplinary hearing. (Id.)

Following this ruling, the Unit Classification Committee ("UCC") reinstated Plaintiff's family visit privileges. (Id. at 4.) Plaintiff was also returned to general population from administrative segregation ("Ad-Seg.") (Id.) Upon his return to general population, Plaintiff was assigned Defendant Nichols as his correctional counselor. (Id.) Defendant Nichols reviewed Plaintiff's central file and informed him that she "would be taking him back to classification" to request that the UCC revoke Plaintiff's family visit privileges. (Id.) Defendant Nichols later became "Acting Correctional Counselor Supervisor" and brought Plaintiff's visitation privileges to the UCC. (Id.) Plaintiff alleges that with this new position, Defendant Nichols "had final say in Institutional Classification matters." (Id.) Although the committee was presented with the same documentation as the previous classification hearing where Plaintiff's visiting privileges were restored, Plaintiff claims that Defendant Nichols presented new statements to the classification committee. (Id. at 5-6.) Specifically, Plaintiff alleges Defendant Nichol told the classification committee that "Plaintiff threw a rock through the back of a vehicle window causing it to shatter glass on everyone in the vehicle including the minor child in the back seat nineteen years ago." (Id. at 6.) Plaintiff claims that event never happened and there was no evidence that he had ever been arrested or charged with this crime. (Id.) Plaintiff also alleges that he was never arrested or charged with any crimes that would disqualify him from receiving family visits. (Id. at 9.)

II. Defendant's Motion to Dismiss

A. Defendant's Arguments

Defendant seeks dismissal of Plaintiff's Complaint pursuant to FED.R.CIV.P. 12(b)(6) on the grounds that: (1) Plaintiff fails to state a Fourteenth Amendment due process claim; and (2) Plaintiff fails to state an Eighth Amendment claim. (See Def's Not. of Mtn to Dismiss at 1-2.)

B. FED.R.CIV.P. 12(b)(6) Standard of Review

A Rule 12(b)(6) dismissal may be based on either a "'lack of a cognizable legal theory' or 'the absence of sufficient facts alleged under a cognizable legal theory.'" Johnson v. Riverside Healthcare System, LP, 534 F.3d 1116, 1121-22 (9th Cir. 2008) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). In other words, the plaintiff's complaint must provide a "short and plain statement of the claim showing that [he] is entitled to relief." Id. (citing FED.R.CIV.P. 8(a)(2)). "Specific facts are not necessary; the statement need only give the defendant[s] fair notice of what ... the claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200 (2007) (internal quotation marks omitted).

A motion to dismiss should be granted if plaintiff fails to proffer "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) .

In addition, factual allegations asserted by pro se petitioners, "however inartfully pleaded," are held "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519-20 (1972). Because "Iqbal incorporated the Twombly pleading standard and Twombly did not alter courts' treatment of pro se filings, [courts] continue to construe pro se filings liberally when evaluating them under Iqbal." Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985).

C. Application to Plaintiff's ...


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