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Krug v. Pellicane

United States District Court, C.D. California

November 25, 2014

GREGORY C. KRUG, Plaintiff,
THOMAS PELLICANE, et al., Defendants

Gregory C Krug, Plaintiff, Pro se, MILAN, MI.

For Thomas Pellicane, John Shell, Defendants: Tim L Laske, LEAD ATTORNEY, AUSA - Office of U.S. Attorney, Los Angeles, CA.


CARLA M. WOEHRLE, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Percy Anderson, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California. For reasons stated below, Defendants' motion to dismiss should be granted and this action should be dismissed, with prejudice, for failure to state a claim.


Plaintiff Gregory C. Krug, a prisoner in federal custody, is proceeding pro se and in forma pauperis in a civil rights action against governmental defendants. This action was opened on December 14, 2012, with the filing of Plaintiff's initial motion to proceed in forma pauperis. [Docket no. 1.] Plaintiff was granted leave to file without prepayment of the filing fee and his Complaint (" Cpt.") was filed on May 2, 2013. [Docket no. 10.] Plaintiff was granted leave to proceed in forma pauperis on September 3, 2013. [Docket no. 16.] Defendants' Motion to Dismiss (" MTD") was filed on May 15, 2014. [Docket no. 31.] Plaintiff's Opposition (" Opp.") was filed on July 14, 2014. [Docket no. 43.] Defendants' Reply was filed on August 6, 2014. [Docket no. 45.] Plaintiff's Request for Evidentiary Hearing (" P. Req.") was filed on August 22, 2014, and has been construed as, in part, a supplemental brief in opposition. [Docket no. 47.] The motion to dismiss has been taken under submission without oral argument.


Complaints such as Plaintiff's are subject to the court's sua sponte review under provisions of the Prison Litigation Reform Act of 1995 (" PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996). See 28 U.S.C. § 1915A(a). The court shall dismiss such a complaint, at any time, if the court finds that it (1) is frivolous or malicious, [1] (2) fails to state a claim on which relief may be granted, or (3) seeks monetary relief from a defendant immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(in forma pauperis complaints); 28 U.S.C. § 1915A(b)(prisoner complaints against government defendants); Lopez v. Smith, 203 F.3d 1122, 1126-27 and n.7 (9th Cir. 2000)(en banc). " Failure to state a claim" has the same meaning on PLRA review and on review of a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Knapp, 738 F.3d at 1109. A Rule 12(b)(6) motion to dismiss for failure to state a claim " 'tests the legal sufficiency of a claim.'" Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011) (quoting Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). Dismissal for failure to state a claim may be based on " 'lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.'" Conservation Force, 646 F.3d at 1242 (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). A complaint may also be dismissed for failure to state a claim if it discloses a fact or complete defense that will necessarily defeat the claim. Franklin v. Murphy, 745 F.2d 1221, 1228-29 (9th Cir. 1984) (citing 2A Moore's Federal Practice ¶ 12.08).

To survive review for failure to state a claim, a complaint must allege facts sufficient " 'to state a facially plausible claim to relief.'" Conservation Force, 646 F.3d at 1242 (quoting Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010)). " A complaint is properly dismissed under Rule 12(b)(6) unless it contains enough facts to state a claim to relief that is plausible on its face. . . . Well-pleaded factual allegations are taken as true, but conclusory statements or bare assertions are discounted." Recinto v. U.S. Dep't of Veterans Affairs, 706 F.3d 1171, 1177 (9th Cir. 2013)(citing Ashcroft v. Iqbal, 556 U.S. 662, 681, 697, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); other citations and internal quotation marks omitted)).

If the court finds that a complaint should be dismissed for failure to state a claim, the court may dismiss with or without leave to amend. Lopez, 203 F.3d at 1126-30. Leave to amend should be granted if it appears that defects can be corrected, especially if the plaintiff is appearing pro se. Id. at 1130-31. If, after careful consideration, it is clear that a complaint cannot be cured by amendment, the court may dismiss without leave to amend. Cato, 70 F.3d at 1107-11.


Plaintiff brings suit under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), requesting a jury trial and seeking compensatory and punitive damages. [Cpt. ¶ 5, 10-11.][2] In Bivens, the Supreme Court recognized a private right of action for damages against an individual officer, acting under color of federal law, for violating a plaintiff's Fourth Amendment rights. See Minneci v. Pollard, U.S., 132 S.Ct. 617, 620-621, 181 L.Ed.2d 606 (2012)(citing Bivens). Plaintiff names as defendants (effectively in an individual capacity) two agents of the United States Marshals Service, Thomas Pellicane and John Shell. [Cpt ¶ ¶ 2-3.][3] He claims that these defendants, acting under color of federal law, violated his First Amendment right to freedom of speech. [Cpt. ¶ 5.] " The Supreme Court has never explicitly held that the logic of Bivens extends to claims alleging a First Amendment violation." Moss v. U.S. Secret Service, 572 F.3d 962, 967 n.4 (9th Cir. 2009).[4] However, the Ninth Circuit has held " that Bivens authorizes First Amendment damages claims." Id. (citing Gibson v. United States, 781 F.2d 1334, 1342 (9th Cir. 1986)).

Assuming, then, that Plaintiff can bring a Bivens claim for violation of his First Amendment free speech rights, the elements of the claim stating a First Amendment violation would be the same as in a comparable claim in an action under 42 U.S.C. § 1983 against defendants acting under color of state law. See Iqbal, 556 U.S. at 675-76. Here, Plaintiff claims that the defendants retaliated against him for ...

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