United States District Court, N.D. California
MARCO A. PEREZ, Plaintiff,
C. E. DUCART, et al., Defendants.
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
(Docket No. 25)
Labson Freeman United States District Judge.
a state prisoner proceeding pro se, filed a
complaint pursuant to 42 U.S.C. § 1983 against officials
at the Pelican Bay State Prison (“PBSP”)
challenging the imposition of a restitution fine. The Court
found the amended complaint, (Docket No. 10), stated a
cognizable due process claim and ordered the matter served on
Defendants C. E. Ducart, B. Keevil, P. Badura, M. Townsend,
and D. Bradbury. (Docket No. 11.) Defendants filed a motion
to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure on the following grounds: the due process claim is
barred by Heck v. Humphrey; the complaint fails to
state a claim for due process against them; they are entitled
to qualified immunity; the Eleventh Amendment bars the suit
for official capacity damages; Plaintiff has not pleaded a
claim for punitive damages; and Plaintiff is not entitled to
either a preliminary or permanent injunction. (Docket No. 25,
hereafter “Mot.”) Plaintiff filed opposition,
(Docket No. 26), and Defendants filed a reply, (Docket No.
support of their motion, Defendants filed a request for
judicial notice, followed by an amended request, of the
following documents: a copy of the abstract of judgment from
the Los Angeles County Superior Court, No. A566957,
People v. Perez, dated by the court as February 26,
1987, (Ex. A); copy of the minute entry order from the Los
Angeles County Superior Court, No. A566967, People v.
Perez, dated February 5, 1987, (Ex. B); and a copy of
the decision issued by the California Court of Appeals,
Second Appellate District, No. B026811, People v.
Perez, dated November 1, 1990, (Ex. C). (Docket No.
29-1, Defs.'Amended Request for Judicial Notice
(“RJN”).) The Court GRANTS the request for
judicial notice of these documents because they are
“capable of accurate and ready determination by resort
to sources whose accuracy cannot reasonably be
questioned.” Fed.R.Evid. 201(b)(2). Furthermore, these
records are proceedings in other courts which have a direct
relation to matters at issue. See Bias v. Moynihan,
508 F.3d 1212, 1225 (9th Cir. 2007) (district court
“may take notice of proceedings in other courts, both
within and without the federal judicial system, if those
proceedings have a direct relation to matters at
issue”). (internal quotation marks and citations
argue in reply that Plaintiff's opposition should be
stricken. (Reply at 2.) Local Rules 7-3(a) and 7-4(b) provide
that a brief or memorandum contained in an opposition to a
motion may not exceed 25 pages of text unless the Court has
ordered otherwise at a party's request prior to the due
date. (Reply at 2); Civil L.R. 7-3(a); Civil L.R. 7-4(b).
Defendants argue that Plaintiff's opposition includes a
memorandum or points and authorities that is 54 pages long,
(Docket No. 26), and that Plaintiff did not request leave to
exceed the page limit. (Id.) The Court agrees that
Plaintiff's opposition far exceeds the 25-page limitation
and is in violation of the local rules. However, in the
interest of justice, the Court will accept the first 25 pages
of the memorandum as Plaintiff's opposition and strike
reasons set forth below, Defendants' motion to dismiss is
is an inmate currently housed at PBSP, where the alleged
events occurred. (Am. Compl. at 2.) Plaintiff has been
incarcerated since October 28, 1984, and was convicted and
sentenced on March 3, 1987. (Id. at 5.) Plaintiff
claims that he has been housed in seven California state
prisons, including PBSP, and that before July 10, 2014, no
restitution fine was ever imposed. (Id.) Plaintiff
claims that on July 10, 2014, Defendants imposed a $10, 000
restitution fine in violation of his due process rights and
state regulations, and that he was not provided with proper
notice. (Id. at 1, 4-5.) The allegations against the
individual defendants include the following: Defendant Ducart
“signed off” on the fine; Defendant Keevil failed
to issue the “direct order” for the fine;
Defendant Badura gave Plaintiff an “illegal minute
order” and a notice that was not in compliance with
state regulations; Defendant Townsend refused to remove the
illegal fine; and Defendant Bradbury denied his inmate
grievance appeal and allowed the fine to remain.
(Id. at 2-3.) Plaintiff seeks declaratory relief,
damages, including punitive, and injunctive relief.
(Id. at 8-9.) Liberally construed, the Court found
Plaintiff's allegations were sufficient to state a due
process claim because the imposition of the restitution fine
appeared to be predictable and pre-deprivation process was
possible. (Docket No. 11 at 2-3.)
to state a claim upon which relief can be granted is grounds
for dismissal under Rule 12(b)(6). Dismissal for failure to
state a claim is a ruling on a question of law. See Parks
School of Business, Inc., v. Symington, 51 F.3d 1480,
1483 (9th Cir. 1995). “The issue is not whether
plaintiff will ultimately prevail, but whether he is entitled
to offer evidence to support his claim.” Usher v.
City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987).
a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, . . . a
plaintiff's obligation to provide the ‘grounds of
his ‘entitle[ment] to relief' requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.... Factual
allegations must be enough to raise a right to relief above
the speculative level.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 553-56 (2007) (citations
omitted). A motion to dismiss should be granted if the
complaint does not proffer “enough facts to state a
claim for relief that is plausible on its face.”
Id. at 570. To state a claim that is plausible on
its face, a plaintiff must allege facts that “allow
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). From these decisions,
the following “two principles” arise:
“First to be entitled to the presumption of truth,
allegations in a complaint or counterclaim may not simply
recite the elements of a cause of action but must contain
sufficient allegations of underlying facts to give fair
notice and to enable the opposing party to defend itself
effectively. Second, the factual allegations that are taken
as true must plausibly suggest an entitlement to relief, such
that it is not unfair to require the opposing party to be
subjected to the expense of discovery and continued
litigation.” Starr v. Baca, 652 F.3d 1202,
1216 (9th Cir. 2011).
is limited to the contents of the complaint, see Clegg v.
Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir.
1994), including documents physically attached to the
complaint or documents the complaint necessarily relies on
and whose authenticity is not contested. See Lee v.
County of Los Angeles, 250 F.3d 668, 688 (9th Cir.
2001). In addition, the court may take judicial notice of
facts that are not subject to reasonable dispute. See
id. at 688 (discussing Fed.R.Evid. 201(b)). Allegations
of fact in the complaint must be taken as true and construed
in the light most favorable to the non-moving party. See
Symington, 51 F.3d at 1484.
Plaintiff's Objections in Opposition
initial matter, the Court will address several objections
made by Plaintiff in his opposition. Firstly, Plaintiff
asserts that Defendants' counsel acted in bad faith by
referencing incorrect dates in the two exhibits included with
Defendants' motion to dismiss. (Opp. at 3-6.) Plaintiff
asserts that Defendants' counsel should be sanctioned for
acting in bad faith and for “willful abuse of the
judicial processes.” (Id. at 6-7.) As noted
above, Defendants subsequently filed an Amended Request for
Judicial Notice along with a Notice of Errata, identifying
the two errors in their original RJN request which are
mentioned by Plaintiff. See ...