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Hoffman v. Preston

United States District Court, E.D. California

October 11, 2019

MARCELLAS HOFFMAN, Plaintiff,
v.
TIMOTHY PRESTON, Defendant.

          FINDINGS AND RECOMMENDATIONS TO GRANT DEFENDANT'S MOTION TO DISMISS WITHOUT LEAVE TO AMEND (ECF NO. 47) THIRTY (30) DAY DEADLINE

         Plaintiff Marcellas Hoffman is a federal prisoner proceeding pro se and in forma pauperis in this civil action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

         Currently before the Court is Defendant Timothy Preston's motion to dismiss, filed on July 18, 2019. (ECF No. 47.)

         I.

         INTRODUCTION

         Plaintiff initiated this action on October 27, 2016. (ECF No. 1.) On May 9, 2017, the Court screened Plaintiff's complaint and found that Plaintiff alleged cognizable claims against Defendant Preston for retaliation in violation of the First Amendment and deliberate indifference in violation of the Eighth Amendment, but failed to state any other cognizable claims against any other defendants. (ECF No. 8.) Plaintiff was ordered to either file a first amended complaint or notify the Court of his willingness to proceed only on the claims found to be cognizable by the Court. (Id. at 8-10.) On May 22, 2017, Plaintiff notified the Court in writing of his willingness to proceed only on the cognizable claims identified by the Court. (ECF No. 9.) Thereafter, on May 23, 2017, the Court issued an order finding service of the complaint appropriate for Defendant and dismissing all other claims and defendants from the action for failure to state a cognizable claim for relief. (ECF No. 10.)

         After receiving leave from the Court, Defendant filed a pre-answer motion for summary judgment for failure to exhaust administrative remedies on October 23, 2017. (ECF Nos. 15, 20.)

         On November 9, 2017, the Ninth Circuit Court of Appeals ruled that “all plaintiffs and defendants named in the complaint - irrespective of service of process” - must consent “before jurisdiction may vest in a magistrate judge to hear and decide a civil case that a district court would otherwise hear.” Williams v. King, 875 F.3d 500, 501, 504-05 (9th Cir. 2017). On December 1, 2017, in light of the Williams decision, the Court issued findings and recommendations recognizing that the Court did not have jurisdiction to dismiss the non-cognizable claims and all defendants other than Defendant Preston in its May 23, 2017 order and recommending to the District Judge that this case proceed only on the cognizable claims against Defendant Preston and that all other claims and defendants be dismissed. (ECF No. 26.) On January 10, 2018, the District Judge adopted the December 1, 2017 findings and recommendations in full. (ECF No. 27.)

         On August 8, 2018, the Court issued findings and recommendations recommending that Defendant's motion for summary judgment for failure to exhaust administrative remedies be granted and that the instant action be dismissed without prejudice. (ECF No. 29.) However, on September 26, 2018, the District Judge issued an order adopting the August 8, 2018 findings and recommendations in part, denying Defendant's motion for summary judgment for failure to exhaust administrative remedies, and referring the case back for an evidentiary hearing on the disputed issues of fact regarding whether administrative remedies were effectively unavailable when Plaintiff sought to grieve certain allegations raised against Defendant. (ECF No. 33.)

         On November 5, 2018, the Court granted Defendant's motion for leave to file a motion to dismiss prior to the Court conducting the exhaustion-related evidentiary hearing. (ECF Nos. 34, 36.) On November 8, 2018, Defendant filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 37.) On November 26, 2018, Plaintiff filed his opposition to Defendant's motion to dismiss. (ECF No. 38.) As part of his opposition, Plaintiff requested leave to file the proposed first amended complaint that he had included as Attachment 1 pursuant to Federal Rule of Civil Procedure 15(a) and (c). (ECF No. 38, at 1, 22, 24-32.)

         On March 15, 2019, the Court issued findings and recommendations recommending that Plaintiff's request for leave to file a first amended complaint be granted and that Defendant's motion to dismiss be denied as moot. (ECF No. 40.) The District Court adopted the March 15, 2019 findings and recommendations in full on April 9, 2019. (ECF No. 41.)

         Also, on April 11, 2019, the Court docketed Plaintiff's first amended complaint. (ECF No. 42.) On April 24, 2019, the Court screened Plaintiff's first amended complaint and issued findings and recommendations recommending that Plaintiff's First Amendment retaliation claim be dismissed without leave to amend for failure to state a cognizable claim under Bivens, and that this action proceed on Plaintiff's claim against Defendant for violation of the Eighth Amendment. (ECF No. 43.) On June 12, 2019, the District Judge adopted the April 24, 2019 findings and recommendations in full. (ECF No. 44.)

         On June 14, 2019, the Court granted Defendant's motion for an extension of time to file a responsive pleading and ordered Defendant to file a motion to dismiss, or another responsive pleading, no later than July 19, 2019. (ECF No. 46.)

         On July 18, 2019, as noted above, Defendant filed a motion to dismiss this action in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 47.) Plaintiff filed an opposition to Defendant's motion to dismiss on July 29, 2019, and Defendant filed a reply on August 5, 2019. (ECF Nos. 48, 50.) Accordingly, Defendant's motion to dismiss is deemed submitted for decision without oral argument. Local Rule 230(1).

         II.

         LEGAL STANDARD

         A 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 Rule 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 ...


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