FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANT'S MOTION TO DISMISS, DEFENDANT'S MOTION TO STRIKE, PLAINTIFF'S MOTION TO STRIKE, AND PLAINTIFF'S MOTION FOR SANCTIONS BE DENIED
(Docs. 79, 80, 88, 90, and 91)
SHEILA K. OBERTO, Magistrate Judge.
I. Procedural History
Plaintiff Anthony Nguyen, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on May 18, 2011. This action is proceeding against Defendant Biter for violation of the Eighth Amendment of the United States Constitution.
On March 18, 2013, Defendant filed a motion to dismiss for failure to state a claim. Fed.R.Civ.P. 12(b)(6). Plaintiff filed an opposition on May 1, 2013, and Defendant filed a reply on May 8, 2013. Plaintiff then filed a surreply on May 20, 2013, which was stricken from the record by the Court sua sponte on May 22, 2013. Defendant filed a motion to strike Plaintiff's surreply on May 21, 2013; and Plaintiff filed a motion to strike Defendant's reply on May 30, 2013, and a motion for sanctions on July 5, 2013. Defendant opposed the motion for sanctions on July 25,
II. Motions to Strike and for Sanctions
In light of the Court's order striking Plaintiff's surreply, Defendant's motion to strike is moot and it should be denied on that ground.
Plaintiff's motion to strike lacks merit. Plaintiff was entitled to file an opposition to Defendant's motion to dismiss and Defendant was entitled to file a reply. Local Rule 230( l ). However, Plaintiff does not have the right to file a surreply, as he asserts; and there is no support for his argument that Defendant's reply should also be stricken because there is no right to reply. The Court recommends Plaintiff's motion to strike be denied.
Finally, Plaintiff seeks the imposition of sanctions. However, Plaintiff fails to identify any legal authority in support of his request for sanctions. The parties disagree over the facts and whether Defendant violated Plaintiff's rights. Such disagreements are inherent in litigation and Defendant's position that he did not violate Plaintiff's rights provides no grounds for the imposition of sanctions. Plaintiff's motion is baseless and it should be denied.
III. Motion to Dismiss for Failure to State a Claim
A. Legal Standard
A motion to dismiss brought pursuant to Rule 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) (quotation marks and citations omitted), cert. denied, 132 S.Ct. 1762 (2012). In resolving a 12(b)(6) motion, a 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); 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, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)) (quotation marks omitted); Conservation Force, 646 F.3d at 1242; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The Court must accept the factual allegations as true and draw all reasonable inferences in favor of the non-moving party, Daniels-Hall, 629 F.3d at 998; Sanders, 504 F.3d at 910; Morales v. City of Los Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000); in this Circuit, pro se litigants are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).
Plaintiff's complaint was screened and the Court determined it stated a claim upon which relief may be granted. 28 U.S.C. § 1915A; Watison, 668 F.3d at 1112. Defendant presents no arguments which persuade the Court it committed clear error in determining that Plaintiff's Eighth Amendment claim was cognizable or that any other grounds justifying relief from the screening order exist. See Ingle v. Circuit City, 408 F.3d 592, 594 (9th Cir. 2005) ("A district court abuses its discretion in applying the law of the case doctrine only if (1) the first decision was clearly erroneous; (2) an intervening change in the law ...