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Galicia v. Marsh

United States District Court, E.D. California

May 5, 2017

JOSE GALICIA, Plaintiff,
v.
T. MARSH, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANTS' MARSH AND WEATHERFORD'S MOTIONS TO DISMISS AND PLAINTIFF'S MOTION TO AMEND [ECF NOS. 28, 31, 32]

         Plaintiff Jose Galicia is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

         Currently before the Court is Defendant Marsh's motion to dismiss, filed September 30, 2016, and Defendant Weatherford's motion to dismiss, filed October 13, 2016.

         I.

         RELEVANT HISTORY

         This action is proceeding against Defendants Guzman, Marsh, Weatherford, and Jennings for due process violations in connection with a rules violation report and hearing for possession of a deadly weapon.[1]

         On August 22, 2016, Defendants A. Guzman and J. Jennings filed an answer to the complaint. On August 23, 2016, the Court issued the discovery and scheduling order.

         On September 30, 2016, Defendant Marsh filed the instant motion to dismiss. (ECF No. 28.)

         On October 13, 2016, Defendant Weatherford filed a motion dismiss. (ECF No. 31.)

         On October 27, 2016, Plaintiff filed a motion for leave to file an amended complaint, and lodged a second amended complaint. (ECF Nos. 32 & 33.) On November 2, 2016, Defendants A. Guzman, M. Jennings, and T. Marsh filed an opposition to Plaintiff's motion to amend. (ECF No. 37.) On November 3, 2016, Defendant Weatherford joined in Defendants' opposition. (ECF No. 38.) Plaintiff filed a reply on December 27, 2016. (ECF No. 49.)

         On November 28, 2016, Plaintiff filed an opposition to Defendant Weatherford's motion to dismiss. (ECF No. 44.) Defendant Weatherford filed a reply on December 5, 2016. (ECF No. 46.)

         II.

         DISCUSSION

         A. Motion to Dismiss 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). 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 Dept. of Corr., 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 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (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).

         Defendant argues that the action should be dismissed on the ground that Plaintiff's due process claim him against him is barred by the favorable-termination rule announced in Heck v. Humphrey, 512 U.S. 477 (1994).

         B. Complaint Allegations

         On March 15, 2013, Plaintiff was transferred to Corcoran State Prison and placed in administrative segregation pending release to facility 3A.

         On March 20, 2013, Plaintiff arrived in facility 3A, housing unit 2 and was assigned to cell 212. Plaintiff was never asked to sign a document acknowledging that cell 212 was searched prior to Plaintiff's assignment as mandated by California Department of Corrections and Rehabilitation (CDCR) guidelines.

         On March 27, 2013, Plaintiff appeared before the classification committee which chose to release Plaintiff ...


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