United States District Court, E.D. California
DIRECTING CLERK'S OFFICE TO ASSIGN A DISTRICT JUDGE TO
THIS MATTER ORDER DIRECTING CLERK'S OFFICE TO TERMINATE
ECF NO. 18 FINDINGS AND RECOMMENDATION TO GRANT
DEFENDANT'S MOTION TO DISMISS (ECF NO. 17) FOURTEEN (14)
DAY OBJECTION DEADLINE
MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and in forma pauperis
in this civil rights action brought pursuant to 28 U.S.C.
§ 1983. The action proceeds on a Fourteenth Amendment
claim for damages against Defendant Silva in his individual
capacity. The allegations arise out of a disciplinary hearing
conducted by Defendant Silva.
the Court is Defendant's motion to dismiss. (ECF No. 17.)
Plaintiff filed an opposition. (ECF No. 18.) Defendant filed a
reply. (ECF No. 19.) The matter is submitted. Local Rule
is incarcerated at Salinas Valley State Prison but complains
of acts that occurred at Corcoran State Prison in Corcoran,
California. His allegations may be summarized essentially as
psychologist Jack Alvord reported that Plaintiff had made
threats against staff members. Plaintiff was called to attend
a Rules Violation Report (“RVR”) disciplinary
proceeding before Lieutenant W. Brodie regarding the
allegations. During the hearing, Brodie refused to make
Alvord available by phone for questioning, despite
Plaintiff's insistence that he do so. Brodie found
Plaintiff guilty of the alleged violation and assessed
Plaintiff a thirty day loss of credits.
appealed the result of his disciplinary proceeding. The
appeal was partially granted and the guilty finding was
disciplinary charge was reheard by Defendant Silva. Plaintiff
submitted questions to be posed to Alvord. The questions were
not answered and Silva did not attempt to contact Alvord by
phone, stating that Alvord no longer worked at Corcoran.
Plaintiff again was found guilty, resulting in a loss of
good-time credits and a “point-hike” that keeps
Plaintiff in a maximum security prison.
submitted an appeal regarding his second disciplinary
proceeding. However, he was transferred to another
institution on July 7, 2016, and his subsequent inquiries
regarding the appeal went unanswered.
alleges that the rehearing by Silva violated his due process
Legal Standard - Motion to Dismiss
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 v. Nat'l Educ. Ass'n,
629 F.3d 992, 998 (9th Cir. 2010). However, courts may
properly consider matters subject to judicial notice and
documents incorporated by reference in the pleading without
converting the motion to ...