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Geray v. Shafer

United States District Court, E.D. California

June 28, 2019

JASON GERAY, Plaintiff,
v.
JENNIFER SHAFER, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS

          DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE

         Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the Court are Plaintiff's motions for preliminary injunction (ECF Nos. 11 and 20) and Defendants' motion to dismiss (ECF No. 18). Defendants argue Plaintiff's claims against Defendant Kernan are moot because Kernan resigned from his position as Secretary of CDCR and that Plaintiff fails to state a due process claim against any of the Defendants.

         I. BACKGROUND

         A. Procedural History

         Plaintiff filed his civil rights complaint on October 17, 2018, asserting Defendants violated his Fourteenth Amendment due process rights-seeking injunctive relief, declaratory relief, attorney's fees, and invalidation of his parole eligibility determination. ECF No. 1. On November 2, 2018, this Court screened the complaint and determined that sufficient facts existed for the complaint to pass screening and authorized service to Defendants D. Hurd, S. Kernan, R. Dotta, and J. Shafer. ECF No. 10. On November 28, 2018, Plaintiff filed a motion for preliminary injunction seeking the same injunctive relief requested in Plaintiff's complaint-to invalidate the procedures that lead to Plaintiffs parole denial. ECF No. 11. Defendants returned the waivers of service on February 11, 2019. ECF No. 17. Defendants filed their motion to dismiss on February 19, 2019. ECF No. 18. Plaintiff filed a second motion for a preliminary injunction, again seeking the same injunctive relief requested in Plaintiff's complaint-to invalidate the procedures that lead to Plaintiffs parole denial. ECF No. 20. Plaintiff filed his opposition to Defendants' motion to dismiss on February 28, 2019, and Defendants filed their reply on March 8, 2019. ECF Nos. 22, 23. Defendants filed their opposition to Plaintiff's second motion for a preliminary injunction on March 12, 2019, and Plaintiff filed his reply to the opposition on March 27, 2019. ECF Nos. 24 and 26.

         B. Plaintiff's Claims

         Plaintiff claims Defendants violated his due process rights under the Fourteenth Amendment. Specifically, Plaintiff alleges Defendants S. Kernan and J. Shafer established constitutionally inadequate procedure related to parole determinations. Additionally, Plaintiff alleges Defendants D. Hurd and R. S. Dotta impermissibly based his parole denial on outdated and incorrect information when they used six year old disciplinary reports as evidence establishing current dangerousness.

         C. Defendants Motion to Dismiss

         Defendants argue Plaintiff's complaint fails to state a claim upon which relief can be granted for three reasons. First, Defendants argue Plaintiff's claim against Defendant Kernan is moot because Kernan resigned from his position as Secretary of CDCR on August 31, 2018.[1]Second, Defendants argue Plaintiff fails to state a claim against Defendants Kernan and Shafer because there are no allegations demonstrating Kernan and Shafer enacted procedures that deprived Plaintiff of his due process rights. Third, Defendants argue Plaintiff fails to state a claim against Defendants Dotta and Hurd because Plaintiff challenges the denial of his parole not the procedure used to reach the parole decision.

         II. MOTION TO DISMISS LEGAL STANDARD

         Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for motions to dismiss for “failure to state a claim upon which relief can be granted.” “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. 554, 570 (2007)). “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.” Id. The court must accept as true the allegations of the complaint. Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), and construe the pleading in the light most favorable to plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se complaint must contain more than “naked assertion[s], ” “labels and conclusions, ” or “a formulaic recitation of the elements of a cause of action, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678.

         A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curium). The court must give a pro se litigant leave to amend his complaint “unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)). However, the court's liberal interpretation of a pro se complaint may not supply essential elements of the claim that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the court “may ‘generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice.'” Outdoor Media Grp., Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citing Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007)).

         III. ANALYSIS

         A. Claim Against ...


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