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Washington v. Biter

United States District Court, E.D. California

July 13, 2015

JAMES WASHINGTON, Plaintiff,
v.
M. BITER, et al., Defendants.

FINDINGS AND RECOMMENDATIONS TO: (1) GRANT DEFENDANTS' MOTION FOR PARTIAL DISMISSAL (ECF No. 25); AND (2) GRANT DEFENDANTS' REQUEST FOR JUDICIAL NOTICE (ECF No. 26) FOURTEEN (14) DAY OBJECTION DEADLINE

MICHAEL J. SENG, Magistrate Judge.

I. PROCEDURAL HISTORY

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. ยง 1983. The matter proceeds against Defendant Gomez on Plaintiff's Eighth Amendment failure to protect and state law negligence claims, and against Defendant Swanson on Plaintiff's Eighth Amendment excessive force and state law assault and battery claims.

On May 15, 2015, Defendants filed a motion for partial dismissal and a request for judicial notice. (ECF Nos. 25 and 26.) Plaintiff filed an opposition. (ECF No. 34.) Defendants filed a reply. (ECF No. 35.)

These matters are deemed submitted pursuant to Local Rule 230( l ).

II. REQUEST FOR JUDICIAL NOTICE

Defendant asks the Court to take judicial notice of a certified letter, dated March 30, 2015, from the California Victim Compensation and Government Claims Board ("VCGCB"), stating that Plaintiff did not file or present a tort claim with the Board between January 1, 2010 and January 31, 2013.

The Court may take judicial notice of records and reports of administrative bodies, including the VCGCB. See Fed.R.Evid. 201(b); Marsh v. San Diego Cnty., 432 F.Supp.2d 1035, 1043-44 (S.D. Cal. 2006); Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007) (per curiam) ("[I]n order to prevent plaintiffs from surviving a Rule 12(b)(6) motion by deliberately omitting documents upon which their claims are based, a court may consider a writing referenced in a complaint by not explicitly incorporated therein if the complaint relies on the document and its authenticity is unquestioned." (citations and internal quotation marks omitted)). Accordingly, Defendants' request for judicial notice should be granted.

III. MOTION TO DISMISS

A. 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). In resolving a 12(b)(6) motion, a court's review is generally limited to the operative pleading. Daniels-Hall, 629 F.3d at 998.

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, 570 (2007)); Conservation Force, 646 F.3d at 1242; Moss v. U.S. Secret Serv., 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. Pro se litigants are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor. Wilhelm, 680 F.3d at 1121.

In resolving a 12(b)(6) motion, a court's review is generally limited to the operative pleading. Daniels-Hall, 629 F.3d at 998. 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. Lee v. City of Los Angeles, 250 F.3d 668, ...


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