ORDER (1) ADOPTING REPORT AND RECOMMENDATION; (2) OVERRULING PLAINTIFF'S OBJECTIONS; AND (3) GRANTING DEFENDANTS' MOTION TO DISMISS
JANIS L. SAMMARTINO, District Judge.
Presently before the Court is Magistrate Judge Dembin's Report and Recommendation ("R&R") advising the Court to ADOPT the R&R and GRANT Defendants D. Bailey, A. Pope, and D. Savage's ("Defendants") Motion to Dismiss ("MTD") Plaintiff Timothy Kornegay's ("Plaintiff") Complaint. (ECF No. 14.) Also before the Court are Plaintiff's Objections to the R&R (ECF No. 20) and Defendants' Reply to Plaintiff's Objections (ECF No. 22). Having considered the parties' arguments and the law, the Court ADOPTS the R&R, OVERRULES Plaintiff's Objections, and GRANTS WITHOUT PREJUDICE Defendants' MTD.
Magistrate Judge Dembin's R&R provides a thorough and accurate summary of the factual and procedural background in this case. (R&R 2-3, ECF No. 14.) This Order incorporates by reference the facts as set forth in the R&R.
1. Review of the Report and Recommendation
Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district court's duties regarding a magistrate judge's R&R. The district court "shall make a de novo determination of those portions of the report... to which objection is made, " and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(c); see also United States v. Raddatz, 447 U.S. 667, 673-76 (1980). However, in the absence of a timely objection, "the Court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed.R.Civ.P. 72, advisory committee's note (citing Campbell v. U.S. Dist. Ct., 501 F.2d 196, 206 (9th Cir. 1974)).
2. Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that the complaint "fail[s] to state a claim upon which relief can be granted, " generally referred to as a motion to dismiss. The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Although Rule 8 "does not require detailed factual allegations, '... it [does] demand more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, "a plaintiff's obligation to provide the grounds' of his entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Nor does a complaint suffice if it tenders naked assertion[s]' devoid of further factual enhancement.'" Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 557).
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570); see also Fed.R.Civ.P. 12(b)(6). A claim is facially plausible when the facts pled "allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). That is not to say that the claim must be probable, but there must be "more than a sheer possibility that a defendant has acted unlawfully." Id. Facts "merely consistent with' a defendant's liability" fall short of a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). Further, the Court need not accept as true "legal conclusions." Id. at 678-79. This review requires context-specific analysis involving the Court's "judicial experience and common sense." Id. at 679 (citation omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not show[n]'-that the pleader is entitled to relief.'" Id.
When a plaintiff appears pro se, the Court construes the pleadings liberally and affords the plaintiff any benefit of the doubt. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). When giving liberal construction to a pro se complaint, however, the Court is not permitted to "supply essential elements of the claim that were not initially pled." Easter v. CDC, 694 F.Supp.2d 1177, 1183 (S.D. Cal. 2010) (quoting Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982)). "Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." Id. (quoting Ivey, 673 F.2d at 268). The Court should allow a pro se plaintiff leave to amend "unless the pleading could not possibly be cured." Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003) (internal citations omitted).
1. Summary of R&R's Conclusions
Regarding Plaintiff's Fourteenth Amendment claim, Magistrate Judge Dembin found that Plaintiff failed to plead a substantive due process claim because Plaintiff failed to plead a cognizable deprivation of an established liberty interest. (R&R 6, ECF No. 14.) While Petitioner claimed a liberty interest in his "Medium A" custody status and in his family visitation rights, the law does not recognize either of these as rights. ( Id. at 6-7.) The magistrate judge also determined that Plaintiff failed to plead a procedural due process claim because Plaintiff admitted that he was given notice and a hearing ...