United States District Court, C.D. California
CALVIN J. CALVIN, Plaintiff,
ORANGE COUNTY SHERIFF'S DEP'T, et al., Defendants
Calvin J Calvin, Petitioner, Pro se, Orange, CA.
For Orange County Sheriff Department, Respondent: Suzanne Esther Shoai, LEAD ATTORNEY, County of Orange, Office of the County Counsel, Santa Ana, CA.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CARLA M. WOEHRLE, United States Magistrate Judge.
This Report and Recommendation is submitted to the Honorable George H. King, Chief 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, Defendant's motion to dismiss should be granted and this action should be dismissed, with prejudice, for failure to state a claim.
BACKGROUND AND PROCEEDINGS
Plaintiff Calvin J. Calvin is a prisoner in the custody of the Orange County Sheriff's Department pursuant to a state court conviction. Plaintiff is proceeding pro se and in forma pauperis on a civil rights complaint naming governmental defendants and addressing conditions of confinement. His Complaint, dated August 10, 2013, was first submitted to the United States District Court for the Northern District of California, which ordered it transferred to this District. It was filed here on September 17, 2013. [Docket no. 14.] The Complaint was dismissed, with leave to amend, in the Memorandum and Order (" M& O") filed November 12, 2013. [Docket no. 19.]
Plaintiff's First Amended Complaint (" FAC") was filed on December 4, 2013, and named two defendants, the Orange County Sheriff's Department (" OCSD") and the California Department of Corrections and Rehabilitation (" CDCR"). [Docked no. 20.] On January 16, 2014, the court granted Plaintiff leave to proceed in forma pauperis. [Docket no. 21.] Defendant OCSD filed its Motion to Dismiss (" MTD") on March 25, 2014. [Docket no. 26.] Plaintiff filed his Opposition (" Opp.") on April 23, 2014. [Docket no. 30.] Defendant OCSD filed its Reply (" Rep.") on May 6, 2014. [Docket no. 31.] Defendant OCSD filed a notice of improper service (with respect to Defendant CDCR) on May 6, 2014. [Docket no. 32.] The motion to dismiss has been taken under submission without oral argument.
STANDARD OF REVIEW
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, (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 Lopez v. Smith, 203 F.3d 1122, 1126-27 and n.7 (9th Cir. 2000)(en banc); 28 U.S.C. § 1915(e)(2)(B)(in forma pauperis complaints); 28 U.S.C. § 1915A(b)(prisoner complaints against government defendants); 42 U.S.C. § 1997e(c)(complaints re: prison conditions).
" Failure to state a claim" has the same meaning on PLRA review that it has in review of a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Knapp v. Hogan, 738 F.3d. 1106, 1109 (9th Cir. 2013). 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 the defects can be corrected, especially if the plaintiff is appearing pro se. Id. at 1130-31; see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 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 42 U.S.C. § 1983. The elements of a § 1983 claim are that a person, acting under color of state law, deprived a plaintiff of a right under the federal constitution or laws. See Miranda v. Clark County, 279 F.3d 1102, 1106 (9th Cir. 2002)(citing West v. Atkins, 487 U.S. 42, 48-49, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988)). Plaintiff claims that he has been denied proper ...