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Hoch v. Mayberg

United States District Court, E.D. California

March 5, 2014

CORY HOCH, Plaintiff,
v.
STEPHEN MAYBERG, et al., Defendants.

FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS' MOTION TO DISMISS BE GRANTED IN PART AND DENIED IN PART (ECF No. 43)

DENNIS L. BECK, Magistrate Judge.

I. PROCEDURAL HISTORY

Plaintiff Cory Hoch, a civil detainee proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. ยง 1983 on December 6, 2010. This action is proceeding on Plaintiff's first amended complaint, filed on May 1, 2010, against Defendants Tarkenton, Christian, and Sanzberro for violation of the Fourth Amendment. (ECF Nos. 31 & 39.)

Pending before the Court is Defendants Takenton and Sanzberro's ("Defendants") motion to dismiss, filed pursuant to Federal Rule of Civil Procedure 12(b)(6) on July 12, 2013.[1] (ECF No. 43.) Plaintiff filed an opposition on November 12, 2013, and Defendants replied on November 20, 2013. (ECF Nos. 53 & 54.) The matter is deemed submitted pursuant to Local Rule 230( l ).

II. 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); 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). However, courts may properly consider matters subject to judicial notice and documents incorporated by reference in the pleading without converting the motion to dismiss to one for summary judgment. U.S. v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).

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 well-pleaded 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; Huynh, 465 F.3d at 996-97; Morales v. City of Los Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000), and in this Circuit, prisoners proceeding pro se are still 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).

Further, "[a] claim may be dismissed under Rule 12(b)(6) on the ground that it is barred by the applicable statute of limitations only when the running of the statute is apparent on the face of the complaint.'" Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (quoting Huynh, 465 F.3d at 997), cert. denied, 131 S.Ct. 3055 (2011). "A complaint cannot be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts that would establish the timeliness of the claim.'" Von Saher, 592 F.3d at 969 (quoting Supermail Cargo, Inc. v. U.S., 68 F.3d 1204, 1206 (9th Cir. 1995)).

III. SUMMARY OF PLAINTIFF'S FIRST AMENDED COMPLAINT

Plaintiff is detained at Coalinga State Hospital ("CSH") in Coalinga, California, where the events giving rise to this action occurred. Plaintiff names as Defendants: officers Tarkenton and Christian, and senior psychiatric technician John Sanzberro.

Plaintiff is a civil detainee, detained at Coalinga State Hospital in Coalinga, California. First Am. Compl. ("FAC") 2. Plaintiff has a hospital room. FAC 2. On March 18, 2008, officers Tarkenton and Christian entered his hospital room and searched his living area and locker. FAC 2. Plaintiff did not consent to the search. FAC 2. There was no warrant. FAC 2. Plaintiff contends that he has an expectation of privacy in his hospital room. FAC 3. Senior psychiatric technician John Sanzberro gave the officers the opportunity to search when he declared that he believed Plaintiff had other contraband in his property. FAC 3. Plaintiff's property was seized, which included his laptop and PlayStation Portable, a gaming device. FAC 11. Plaintiff contends a violation of the Fourth Amendment, the Takings Clause of the Fifth Amendment, the Fourteenth Amendment, and Article I, sections 7(a), 13, and 19 of the California Constitution. Plaintiff requests as relief: declaratory relief, the return of all his property, punitive damages, reimbursement for any property destroyed, costs of suit, and a mandate that the DMH cease taking all property without a criminal warrant or pending legal proceeding, that DMH implement all rules and regulations in accordance with state law and the Administrative Procedures Act, and all employees to cease enforcement of all policy or procedure not in conformance with the Administrative Procedures Act.

IV. DISCUSSION

A. Statute of Limitations

1. Statute of Limitations ...


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