United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS REGARDING
DEFENDANTS' MARSH AND WEATHERFORD'S MOTIONS TO
DISMISS AND PLAINTIFF'S MOTION TO AMEND [ECF NOS. 28, 31,
Jose Galicia is appearing pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
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.
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.
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.
September 30, 2016, Defendant Marsh filed the instant motion
to dismiss. (ECF No. 28.)
October 13, 2016, Defendant Weatherford filed a motion
dismiss. (ECF No. 31.)
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.)
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.)
Motion to Dismiss Standard
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).
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).
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).
March 15, 2013, Plaintiff was transferred to Corcoran State
Prison and placed in administrative segregation pending
release to facility 3A.
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
March 27, 2013, Plaintiff appeared before the classification
committee which chose to release Plaintiff ...