David v. Giurbino, No. 06cv403 BTM(JMA).

CourtUnited States District Courts. 9th Circuit. United States District Court (Southern District of California)
Writing for the CourtMoskowitz
Citation488 F.Supp.2d 1048
Docket NumberNo. 06cv403 BTM(JMA).
Decision Date16 March 2007
PartiesMitchell Moran DAVID, Plaintiff, v. G.J. GIURBINO, Warden, et al., Defendants.
488 F.Supp.2d 1048
Mitchell Moran DAVID, Plaintiff,
v.
G.J. GIURBINO, Warden, et al., Defendants.
No. 06cv403 BTM(JMA).
United States District Court, S.D. California.
March 16, 2007.

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Mitchell Moran David, Imperial, CA, pro se.

Attorney General, State of California Office of the Attorney General, Phillip James Lindsay, Office of the Attorney General, San Diego, CA, for Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING CASE WITH PREJUDICE

MOSKOWITZ, District Judge.


In a Report and Recommendation filed on January 22, 2007, Magistrate Judge Adler recommended that the Court grant Defendants' Motion to Dismiss Plaintiff's Complaint and Strike Plaintiff's Claim for Punitive Damages. No objections were filed. The Court agrees with the Report and Recommendation and adopts it as the decision of the Court. Defendants' Motion to Dismiss Plaintiff's Complaint and Strike Plaintiff's Claim for Punitive Damages is GRANTED, and Plaintiff's Complaint is

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DISMISSED WITH PREJUDICE. The Clerk shall enter final judgment dismissing the case with prejudice.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION RE GRANTING DEFENDANTS' MOTION TO DISMISS COMPLAINT AND STRIKE PLAINTIFF'S CLAIM FOR PUNITIVE DAMAGES

ADLER, United States Magistrate Judge.

This matter comes before the Court on Defendants' Motion to Dismiss Complaint and Strike Plaintiff's Claim for Punitive Damages [Doc. No. 8]. Plaintiff has not filed an opposition to the motion. The Court found the motion suitable for submission without oral argument. For the reasons set forth below, the Court recommends that Defendants' motion be GRANTED in its entirety.

I. FACTUAL BACKGROUND

Plaintiff, proceeding in pro se, is currently incarcerated at Centinela State Prison ("Centinela").1 Plaintiff is Native American and is an enrolled member of the Bishop Paiute Tribe. Compl. at 3 & Ex. A. On December 21, 2003, Centinela prison officials issued Plaintiff a CDC Form 115, or "Rules Violations Report",2 for not complying with the California Department of Corrections and Rehabilitation's ("CDCR's") grooming regulations by wearing his hair at a length that extended below the shirt collar. Compl. at 3 & Ex. B. At that time, California Code of Regulations, Title 15, Section 3062(e) provided:

A male inmate's hair shall not be longer than three inches and shall not extend over the eyebrows or below the top of the shirt collar while standing upright. Hair shall be cut around the ears, and sideburns shall be neatly trimmed, and shall not extend below the mid point of the ear.

Compl. at Ex. H. As a result of the Rules Violation Report, the prison assessed 30 days of credit loss against Plaintiff on December 28, 2003. Shipman Decl. at ¶ 4 & Ex. A.

On April 4, 2004, prison officials issued Plaintiff another Rules Violation Report for failing to abide by the grooming regulations. Compl. at 3 & Ex. C. The Rules Violation Report noted that Plaintiff's hair was "considerably longer than the allowed standards." Compl. at Ex. C. On June 27, 2004, prison officials issued Plaintiff a third Rules Violation Report for failing to comply with the prison's grooming standards. Compl. at 3 & Ex. D. Plaintiff was again assessed 30 days of credit loss. Shipman Decl. at ¶ 4 & Ex. A. Plaintiff states that he informed prison officials upon each write-up that he wore his hair long because it was part of his cultural and religious beliefs. Compl. at 3.

On September 28, 2004, Plaintiff appeared before a Unit Classification Committee ("UCC") for an Annual Review. Compl. at 4 & Ex. F. The UCC deemed Plaintiff to be a "program failure" and placed him on Work Group/Privilege Group C/C status. Id. As a result of his C/C status designation, Plaintiff lost his employment in vocational welding, Narious privileges, and the ability to earn "good

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time" or worktime credits. Id.; see also Cal.Code Regs. tit. 15, § 3044(b)(5)(A) & (f)(3).3 According to plaintiff, he requested to be taken off of "C-Staus" numerous times but was never referred to the UCC because he remained noncomplaint with the prison's grooming standards. Compl. at 5 & Ex. G.

On September 27, 2005, Plaintiff again appeared before a UCC for an Annual Review. Shipman Decl. at Ex. A. At that time, Plaintiff was restored the 30 day loss of credit relating to the December 2003 Rules Violation Report, as well as the 30 days of credit loss relating to the June 2004 Rules Violation Report. Shipman Decl. at ¶ 4 & Ex. A.4

In the meantime, the Ninth Circuit held that the CDRC's grooming regulations for male prisoners violated the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc-1, because the policy was not the least restrictive means to achieve the state's compelling interest in maintaining prison safety and security. See Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. July 29, 2005). In response to Warsoldier and other litigation, the CDCR filed emergency changes to its grooming regulations. See Initial Statement of Reasons ("ISOR") Grooming/Programs, dated Dec. 29, 2005, attached to Compl. at Ex. H. The new grooming regulations, in relevant part, allowed an inmate's hair to be any length "but [hair] shall not extend over the eyebrows, cover the inmate's face or pose a health and safety risk." Cal.Code Regs. tit. 15, § 3062(e) (2006). The changes, which were operative on January 17, 2006, became final on July 27, 2006. Def.'s Mem. at 5; Cal.Code Regs. tit. 15, § 3062 and history thereof.

On March 7, 2006, Plaintiff was reinstated to Work Group/Privilege Group ("WG/PG") A1A from WG/PG C/C status with an effective date of September 24, 2004 (i.e., the date on which Plaintiff had been placed on WG.PG C/C status). Shipman Decl. at ¶ & Ex. B.5 This change in Plaintiff's status resulted from the modifications made to the grooming regulations. See Shipman Decl. at Ex. B. According to Plaintiff's "Chronological History" at Centinela, all credit losses have been restored, and as of March 9, 2006, Plaintiff's release date had been restored to December 17, 2006. Shipman Decl. at ¶ 6 and Ex. C.

II. PROCEDURAL BACKGROUND

On February 22, 2006, Plaintiff commenced this action alleging violations of his civil rights pursuant to 42 U.S.C. § 1083. He alleges three counts in this Complaint: First, the Defendants G.J. Giurbino, the Warden at Centinela, and Jeanne Woodford, the ten-director of the CDCR, violated his rights to free exercise of religion and due process under RLUIPA by doing nothing to assist him with respect to the enforcement of the prison's grooming policy against him; second, that Defendants Giurbino and Woodford violated his right to be free from cruel and unusual punishment by doing nothing about the punishment rendered against him for not complying with the grooming

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policy despite the requirements of RLUIPA; and third, that Defendant A. Hernandez, a Correctional Captain serving as the Commanding Officer on D-Yard, violated his rights to due process, freedom of religion, and freedom from cruel and unusual punishment by not taking him off of "C-status" despite the requirements of RLUIPA. Compl. at 3-5. Plaintiff seeks $200,000 in general damages, $200,000 in punitive damages, an injunction preventing Defendants from "any type of retaliation, the disciplining of myself along with other Native American practitioners," and "that my [A1A] status be restored, and all 115 write-ups be dismissed[, and] ... my original release date restored from 2/19/07 to 12/17/06." Id. at 7-8.

Defendants have filed a motion to dismiss the complaint and strike the claim for punitive damages pursuant to Rules 12(b)(1), 12(b)(6), and 12(f) of the Federal Rules of Civil Procedure. Plaintiff did not file an opposition.

III. LEGAL STANDARDS

A. Motion to Dismiss

1. Rule 12(b)(1)

A motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) may be based on a facial or a factual attack on jurisdiction. A facial attack challenges the sufficiency of the jurisdictional allegations in the complaint. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.2004). A factual attack, on the other hand, challenges the substance of a complaint's jurisdictional allegations. St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir.1989). In resolving a factual attack on jurisdiction, the court "may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment." Safe Air, 373 F.3d at 1039. The court also "need not presume the truthfulness of the plaintiff's allegations." Id.

2. Rule 12(b)(6)

A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) tests the legal sufficiency of the claims in the complaint. A claim can only be dismissed if it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). The court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them, and must construe the complaint in the light most favorable to the plaintiff. N.L. Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.1986); Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995).

The court looks not at whether the plaintiff will "ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim, a complaint cannot be dismissed without leave to amend. Conley, 355 U.S. at 45-46, 78 S.Ct. 99; see also Lopez v. Smith, 203 F.3d 1122; 1129-30 (9th Cir.2000).

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    • September 5, 2018
    ...Savage v. Glendale Union High Sch., Dist. No. 205, Maricopa Cnty. , 343 F.3d 1036, 1039 n.2 (9th Cir. 2003) ; David v. Giurbino , 488 F.Supp.2d 1048, 1054 (S.D. Cal. 2007). Once the moving party makes a factual challenge by bringing evidence before the Court, the opposing party must furnish......
  • SCHARRINGHAUSEN v. US, Case No. 06cv2167.
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    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • September 29, 2009
    ...Union High 686 F. Supp.2d 1073 Sch., Dist. No. 205, Maricopa County, 343 F.3d 1036, 1039 n. 2 (9th Cir.2003); David v. Giurbino, 488 F.Supp.2d 1048, 1054 (S.D.Cal.2007). Once the moving party makes a factual challenge by bringing evidence before the Court, the opposing party must furnish it......
  • Allen v. Virga, No. 2:12-cv-1583 AC P
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    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • June 11, 2013
    ...and immediate irreparable injury and the inadequacy of remedies at law.' ") (internal citations omitted); David v. Giurbino, 488 F. Supp. 2d 1048, 1056 (S.D. Cal. 2007) ("To prevail on his request for injunctive relief, Plaintiff must demonstrate the likelihood of irreparable injury and the......
  • Mwasi v. Montoya, No. CV 15-4152 DOC (FFM)
    • United States
    • U.S. District Court — Central District of California
    • January 7, 2016
    ...2009). Moreover, state employees, acting in their official capacities, are also immune from federal damage suits. David v. Giurbino, 488 F. Supp. 2d 1048, 1053, 1055 (S.D. Cal 2007) (holding that California Department ofPage 7 Corrections director receives Eleventh Amendment immunity). Here......
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9 cases
  • In re Packaged Seafood Prods. Antitrust Litig., Case No.: 15-MD-2670 JLS (MDD)
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • September 5, 2018
    ...Savage v. Glendale Union High Sch., Dist. No. 205, Maricopa Cnty. , 343 F.3d 1036, 1039 n.2 (9th Cir. 2003) ; David v. Giurbino , 488 F.Supp.2d 1048, 1054 (S.D. Cal. 2007). Once the moving party makes a factual challenge by bringing evidence before the Court, the opposing party must furnish......
  • SCHARRINGHAUSEN v. US, Case No. 06cv2167.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • September 29, 2009
    ...Union High 686 F. Supp.2d 1073 Sch., Dist. No. 205, Maricopa County, 343 F.3d 1036, 1039 n. 2 (9th Cir.2003); David v. Giurbino, 488 F.Supp.2d 1048, 1054 (S.D.Cal.2007). Once the moving party makes a factual challenge by bringing evidence before the Court, the opposing party must furnish it......
  • Allen v. Virga, No. 2:12-cv-1583 AC P
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • June 11, 2013
    ...and immediate irreparable injury and the inadequacy of remedies at law.' ") (internal citations omitted); David v. Giurbino, 488 F. Supp. 2d 1048, 1056 (S.D. Cal. 2007) ("To prevail on his request for injunctive relief, Plaintiff must demonstrate the likelihood of irreparable injury and the......
  • Mwasi v. Montoya, No. CV 15-4152 DOC (FFM)
    • United States
    • U.S. District Court — Central District of California
    • January 7, 2016
    ...2009). Moreover, state employees, acting in their official capacities, are also immune from federal damage suits. David v. Giurbino, 488 F. Supp. 2d 1048, 1053, 1055 (S.D. Cal 2007) (holding that California Department ofPage 7 Corrections director receives Eleventh Amendment immunity). Here......
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