United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
M. KELLISON UNITED STATES MAGISTRATE JUDGE
a prisoner proceeding pro se, brings this civil rights action
pursuant to 42 U.S.C. § 1983. Pending before the court
is defendants' motion to dismiss (Doc. 16).
names the following as defendants: (1) Williams; (2)
Muhammad; (3) Busig; (4) Mitchell; and (5) Hendricks.
Plaintiff claims that, after being informed that plaintiff
and his cellmate were “coming to blows” and that
plaintiff had requested a cell reassignment, defendant
Williams “stated that he did not care about
Plaintiff's hostile cell situation, that he was not going
to separate Plaintiff and his cellmate.” Plaintiff
states that he also informed defendant Muhammad about the
problem with his cellmate but that defendant Muhammad
“informed Plaintiff that once a 9 Building Floor
Officer notified her, that she would immediately rehouse
Plaintiff or his cellmate. . . [¶] [b]ut if Plaintiff
did not return to his cell immediately that he would be
placed in (Ad-Seg).”
plaintiff states that he some days later “the inmate in
9-227 and Plaintiff's cellmate requested that 9 Building
Second Watch Floor Officer, Defendant (C/O) T. Busig to
separate Plaintiff and his cellmate.” According to
plaintiff, defendant Busig stated that he would not separate
plaintiff and his cellmate unless he saw blood or blackeyes.
Plaintiff claims that, later that day, he approached
defendant Hendricks “about his hostile cell
situation” and that he informed defendant Hendricks
that he felt his safety was in jeopardy by remaining in the
cell with his cellmate. According to plaintiff, defendant
Hendricks refused to separate plaintiff and his cellmate and
told him to return to his cell or face placement in
administrative segregation. Plaintiff alleges that he
informed defendant Mitchell of his safety concerns with the
states that he and his cellmate were involved in an
altercation on February 19, 2014, that lasted several hours
and resulted in severe injuries to plaintiff's face.
According to plaintiff, defendant Hendricks walked by while
this was going on, realized the two inmates were fighting,
and ignored the situation. Plaintiff adds that defendant
Mitchell also “peered into Plaintiff's cell as the
physical altercation occurred and stated ‘there in cell
240 trying to kill each other.'” Plaintiff states
that his cellmate was later placed in administrative
segregation for the assault.
STANDARD FOR MOTION TO DISMISS
considering a motion to dismiss, the court must accept all
allegations of material fact in the complaint as true.
See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007).
The court must also construe the alleged facts in the light
most favorable to the plaintiff. See Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974); see also Hosp.
Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740
(1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th
Cir. 1994) (per curiam). All ambiguities or doubts must also
be resolved in the plaintiff's favor. See Jenkins v.
McKeithen, 395 U.S. 411, 421 (1969). However, legally
conclusory statements, not supported by actual factual
allegations, need not be accepted. See Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1949-50 (2009). In addition, pro
se pleadings are held to a less stringent standard than those
drafted by lawyers. See Haines v. Kerner, 404 U.S.
519, 520 (1972).
8(a)(2) requires only “a short and plain statement of
the claim showing that the pleader is entitled to
relief” in order to “give the defendant fair
notice of what the . . . claim is and the grounds upon which
it rests.” Bell Atl. Corp v. Twombly, 550 U.S.
544, 555 (2007) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)). However, in order to survive dismissal for
failure to state a claim under Rule 12(b)(6), a complaint
must contain more than “a formulaic recitation of the
elements of a cause of action;” it must contain factual
allegations sufficient “to raise a right to relief
above the speculative level.” Id. at 555-56.
The complaint must contain “enough facts to state a
claim to relief that is plausible on its face.”
Id. at 570. “A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 129
S.Ct. at 1949. “The plausibility standard is not akin
to a ‘probability requirement, ' but it asks for
more than a sheer possibility that a defendant has acted
unlawfully.” Id. (quoting Twombly,
550 U.S. at 556). “Where a complaint pleads facts that
are ‘merely consistent with' a defendant's
liability, it ‘stops short of the line between
possibility and plausibility for entitlement to
relief.” Id. (quoting Twombly, 550
U.S. at 557).
deciding a Rule 12(b)(6) motion, the court generally may not
consider materials outside the complaint and pleadings.
See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir.
1998); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir.
1994). The court may, however, consider: (1) documents whose
contents are alleged in or attached to the complaint and
whose authenticity no party questions, see Branch,
14 F.3d at 454; (2) documents whose authenticity is not in
question, and upon which the complaint necessarily relies,
but which are not attached to the complaint, see
Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th
Cir. 2001); and (3) documents and materials of which the
court may take judicial notice, see Barron v. Reich,
13 F.3d 1370, 1377 (9th Cir. 1994).
leave to amend must be granted “[u]nless it is
absolutely clear that no amendment can cure the
defects.” Lucas v. Dep't of Corr., 66 F.3d
245, 248 (9th Cir. 1995) (per curiam); see also Lopez v.
Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc).
argue that this action is barred under Heck v.
Humphrey, 512 U.S. 477, 483-84 (1994), and Edwards
v. Balisok, 520 U.S. 641, 646 (1987).
state prisoner challenges the legality of his custody and the
relief he seeks is a determination that he is entitled to an
earlier or immediate release, such a challenge is not
cognizable under 42 U.S.C. § 1983 and the prisoner's
sole federal remedy is a petition for a writ of habeas
corpus. See Preiser v. Rodriguez, 411 U.S. 475, 500
(1973); see also Neal v. Shimoda, 131 F.3d 818, 824
(9th Cir. 1997); Trimble v. City of Santa Rosa, 49
F.3d 583, 586 (9th Cir. 1995) (per curiam). Thus, where a
§ 1983 action seeking monetary damages or declaratory
relief alleges constitutional violations which would
necessarily imply the invalidity of the prisoner's
underlying conviction or sentence, or the result of a prison
disciplinary hearing resulting in imposition of a sanction
affecting the overall length of confinement, such a claim is
not cognizable under § 1983 unless the conviction or
sentence has first been invalidated on appeal, by habeas
petition, or through some similar proceeding. See Heck v.
Humphrey, 512 U.S. 477, 483-84 (1994) (concluding that
§ 1983 claim not cognizable because allegations were
akin to malicious prosecution action which includes as an
element a finding that the criminal proceeding was concluded
in plaintiff's favor); Butterfield v. Bail, 120
F.3d 1023, 1024-25 (9th Cir. 1997) (concluding that §
1983 claim not cognizable because allegations of procedural
defects were an attempt to challenge substantive result in
parole hearing); cf. Neal, 131 F.3d at 824
(concluding that § 1983 claim was cognizable because
challenge was to ...