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Paramore v. Ruiz

United States District Court, E.D. California

August 29, 2014

ANTHONY PARAMORE, Plaintiff,
v.
J. RUIZ, Defendant.

FINDINGS AND RECOMMENDATIONS DENYING DEFENDANT'S MOTION TO DISMISS (ECF No. 16) OBJECTIONS DUE WITHIN FOURTEEN (14) DAYS

MICHAEL J. SENG, Magistrate Judge.

I. PROCEDURAL HISTORY

Plaintiff Anthony Paramore, a former a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on February 23, 2012. (ECF No. 1.) The action proceeds on Plaintiff's Second Amended Complaint against Defendant Ruiz for use of excessive force in violation of the Eighth amendment. (ECF No. 10.)

Defendant Ruiz has moved to dismiss the case under the unenumerated provisions of Federal Rule of Civil Procedure 12(b) for failure exhaust administrative remedies.[1] Defendant also contends Plaintiff's claims are barred by Heck v. Humphrey , 512 U.S. 477 (1994), and Edwards v. Balisok , 520 U.S. 641 (1997). (ECF No. 16.) Plaintiff filed an opposition (ECF No. 19) and Defendant did not reply. Defendant's Rule 12(b)(6) motion to dismiss on the ground that Plaintiff's claims for relief under § 1983 are barred by Heck and Balisok is now before the court.

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).

"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.'" Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555 (2007)); 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, and 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).

III. PLAINTIFF'S CLAIMS

The Second Amended Complaint alleges essentially as follows:

Defendant Ruiz pulled Plaintiff from a prison dining hall line and conducted a clothed body search which included grabbing Plaintiff's groin. When Plaintiff complained about the contact with his groin, Defendant Ruiz responded, "if you move again I will put you on your back." Plaintiff contends he then told Ruiz he was handicapped. Ruiz laughed and responded "I guess we will have to see" and then grabbed Plaintiff's groin again and put Plaintiff on his back. Plaintiff remained on his back until he was taken away for medical attention. (ECF No. 10 at 3.)

Defendant Ruiz filed a Rules Violation Report (RVR), attached as an exhibit to the original complaint, against Plaintiff for "Resisting/Obstructing a Peace Officer Resulting in Use of Force". A hearing was conducted on April 22, 2011. Defendant Ruiz stated that he took Plaintiff to the ground in response to Plaintiff twisting his body back, leading with the left elbow, towards Defendant Ruiz during the search. Plaintiff admitted "that he did move/flinch during the search." Plaintiff was found guilty and assessed ninety days forfeiture of credit. (ECF No. 1 at 19-25.)

IV. ARGUMENTS

A. Defendant's Motion to Dismiss

Defendant argues that Plaintiff's claim is barred by Heck and Edwards because it is based on the same events for which Plaintiff was issued an RVR, ...


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