United States District Court, E.D. California
Carl Ethridge, Plaintiff, Pro se, Chino, CA.
For F.A. Rodriguez, Reyna, C. Rasey, V. Lawrence, Defendants: James D. Mathison, LEAD ATTORNEY, State Of California, Department Of Justice, Sacramento, CA.
FINDINGS AND RECOMMENDATION REGARDING DEFENDANTS' MOTION TO DISMISS [ECF No. 24]
Stanley A. Boone, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Carl Ethrdige is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
This action is proceeding against Defendants Lawrence, Rodriguez, Rasey and Reyna for retaliation in violation of the First Amendment.
On July 31, 2014, Defendants filed a motion to dismiss the complaint for failure to state a cognizable claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Pursuant to Court order, Plaintiff filed an opposition on October 7, 2014, and Defendants filed a reply on October 14, 2014.
A. Motion to Dismiss Standard Under Rule 12(b)(6)
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, 182 L.Ed.2d 532 (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 Dep't of Corrections., 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, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (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), 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).
B. Allegations of Complaint
Plaintiff was engaged in a civil rights complaint against prison officials in case number 07-0595 JAH (PCL) in the United States District Court for the Southern District of California, filed on August 2, 2007. Plaintiff was subjected to ongoing serious acts of retaliation by each of the named defendants due to the exercise of his First Amendment right to participate in an official administrative investigation regarding correctional staff/prison guards serious misconduct and criminal activity which resulted in disciplinary action being taken and arrest of involved staff.
On July 16, 2008, the Court dismissed defendants V. Lawrence and M. Vella from case number 07-0595 because he had not exhausted the administrative remedies prior to filing the action. Plaintiff was instructed to re-file the action after he exhausted the administrative remedies as to those defendants.
Plaintiff alleges several instances of retaliatory action due to his exercise of his First Amendment right to file a complaint.
Plaintiff was transferred to a level IV facility, despite the fact that serious safety concerns were present. Plaintiff warned defendants that he would be assaulted or killed in a level IV facility, yet the threat was disregarded. The threat was only prevented after the court granted his motion for a temporary restraining order and issued ...