United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.
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
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.
Standard for 12(b)(6) Motion
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.
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).
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)).
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).
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.)
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.(Id.)
Standard for Qualified Immunity
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).
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).
Removal of ...