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J'Weial v. S. Gyles

United States District Court, E.D. California

November 8, 2019

XAVIER LUMAR J'WEIAL, Plaintiff,
v.
S. GYLES, et al., Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.

         Introduction

         Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6.) Defendants argue that plaintiff's claims should be dismissed for failing to state a claim upon which relief may be granted. Defendants also argue that they are entitled to qualified immunity. For the reasons stated herein, the undersigned recommends that defendants' motion to dismiss be granted.

         Also pending is plaintiff's motion to construe defendants' motion to dismiss as a motion for summary judgment. (ECF No. 25.) For the reasons stated herein, this motion is denied.

         Legal Standard for 12(b)(6) Motion

         A complaint may be dismissed for “failure to state a claim upon which relief may be granted.” Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss for failure to state a claim, a plaintiff must allege “enough facts to state a claim for relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). The plausibility standard is not akin to a “probability requirement, ” but it requires more than a sheer possibility that a defendant has acted unlawfully. Iqbal, 556 U.S. at 678.

         Dismissal under Rule 12(b)(6) may be based on either: (1) lack of a cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710 F.3d 946, 956 (9th Cir. 2013). Dismissal also is appropriate if the complaint alleges a fact that necessarily defeats the claim. Franklin v. Murphy, 745 F.2d 1221, 1228-1229 (9th Cir. 1984).

         Pro se pleadings are held to a less-stringent standard than those drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). However, the court need not accept as true unreasonable inferences or conclusory legal allegations cast in the form of factual allegations. See Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003) (citing Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)).

         In ruling on a motion to dismiss filed 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 Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks omitted). Although the court may not consider a memorandum in opposition to a defendant's motion to dismiss to determine the propriety of a Rule 12(b)(6) motion, see Schneider v. Cal. Dep't of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998), it may consider allegations raised in opposition papers in deciding whether to grant leave to amend. See, e.g., Broam v. Bogan, 320 F.3d 1023, 1026 n.2 (9th Cir. 2003).

         Plaintiff's Allegations

         This action proceeds on the original complaint against defendants Gyles and Szichak. Plaintiff alleges that defendant Gyles wrongly removed an exhibit from plaintiff's opposition to a motion to dismiss filed in plaintiff's habeas corpus petition filed in the Fresno Division of this court, 1:17-cv-1526. (ECF No. 8 at 6 (screening order).) Defendant Gyles allegedly removed a copy of Senate Bill 1134 from plaintiff's opposition. (Id.)

         Plaintiff alleges that in February 2017, he was charged with possession of contraband in Amador County Superior Court. (Id.) The charges were later dismissed. (Id.) However, while plaintiff challenged the charges, defendants Gyles and Szichak allegedly denied plaintiff's request for Preferred Legal User (“PLU”) status because plaintiff did not have a 30-day deadline. (Id.) Plaintiff alleges that he told defendants that he represented himself in the Amador County case.[1](Id.)

         Legal Standard for Qualified Immunity

         Qualified immunity is “immunity from suit rather than a mere defense to liability.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). The defense of qualified immunity protects public officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person should have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

         A court considering a claim of qualified immunity makes a two-pronged inquiry: (1) whether the plaintiff has alleged the deprivation of an actual constitutional right, and (2) whether such right was clearly established at the time of the defendant's alleged misconduct. See Pearson v. Callahan, 555 U.S. 223, 232 (2009) (quoting Saucier v. Katz, 535 U.S. 194, 201 (2001)). With respect to the second prong of the qualified immunity analysis, the Supreme Court has recently held that “[a]n officer cannot be said to have violated a clearly established right unless the right's contours were sufficiently definite that any reasonable official in his shoes would have understood that he was violating it, meaning that existing precedent ... placed the statutory or constitutional question beyond debate.” City and Cty. of San Francisco, Cal. v. Sheehan, 135 S.Ct. 1765, 1774 (2015) (citation and quotations omitted and omissions in original). This is an “exacting standard” which “gives government officials breathing room to make reasonable but mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law.” Id. (citation and quotations omitted).

         Alleged Removal of ...


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