Hammler v. Lyons, 1:19-cv-01650-AWI-GSA-PC
| Decision Date | 06 July 2021 |
| Docket Number | 1:19-cv-01650-AWI-GSA-PC |
| Court | U.S. District Court — Eastern District of California |
| Parties | ALLEN HAMMLER, Plaintiff, v. J. LYONS, et al., Defendants. |
FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT DEFENDANT LUCAS'S RULE 12(b)(6) MOTION TO DISMISS THE COMPLAINT BE GRANTED IN PART AND DENIED IN PART (ECF No 30.)
FOURTEEN-DAY DEADLINE TO FILE OBJECTIONS
Allen Hammler (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On December 21, 2018, Plaintiff filed the Complaint commencing this action in the Sacramento Division of the United States District Court for the Eastern District of California. (ECF No. 1.) On April 3, 2019, Plaintiff filed the First Amended Complaint as a matter of course. (ECF No. 12.) On November 21, 2019, the Sacramento Division dismissed Plaintiff's claims against defendant Lyons for failure to state a claim and transferred all remaining claims to the Fresno Division. (ECF No. 15.)
On October 19, 2020, the court screened the First Amended Complaint and granted Plaintiff leave to either file a Second Amended Complaint or proceed only with the retaliation and violation of freedom of speech claims against defendant Lucas found cognizable by the court. ECF No. 22.) On November 2 2020, Plaintiff notified the court that he was willing to proceed with only the claims found cognizable by the court. (ECF No. 23.)
This case now proceeds with Plaintiff's First Amended Complaint filed on April 3, 2019, against defendant A. Lucas (Appeals Coordinator) for retaliation and violation of freedom of speech under the First Amendment. (ECF No 12.)[1]
On February 9, 2021, defendant Lucas (“Defendant”) filed a motion to dismiss this case under Rule 12(b)(6) of the Federal Rules of Civil Procedure on the grounds that the First Amended Complaint fails to state sufficient facts establishing a First Amendment violation. ECF No. 30.) On February 25, 2021, Plaintiff filed an opposition to the motion. (ECF No. 33.) Defendant's motion to dismiss is now before the court. Local Rule 230(l).
Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss on he grounds that a complaint “fail[s] to state a claim upon which relief can be granted.”
A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). To survive a motion to dismiss for failure o 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).
In deciding a motion to dismiss, “[a]ll allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party.” Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). The pleading standard under Rule 8 of the Federal Rules of Civil Procedure does not require “‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (2009) (quoting Twombly, 550 U.S. at 555). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678.
To avoid a dismissal under Rule 12(b)(6), a complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.
III.PLAINTIFF'S ALLEGATIONS AGAINST DEFENDANT LUCAS
Plaintiff is presently incarcerated at Corcoran State Prison in Corcoran, California. At the time of the events at issue in the First Amended Complaint, Plaintiff was incarcerated at Kern Valley State Prison in Delano, California, in the custody of the California Department of Corrections and Rehabilitation (CDCR).
Plaintiff alleges in the First Amended Complaint that on May 7, 2018, defendant Lucas, Appeals Coordinator, rejected Plaintiff's 602 prison appeal as pertaining to an issue already addressed in a prior 602, which Plaintiff alleges was not true. In responding back to the rejection notice, Plaintiff wrote, “If you screen [it] out again for [a] Bullshit reason, I will go to Fed. Judge and ask for [an] order to make you process this 602.” (ECF No. 12 at 4:14-16.) The appeal was rejected again based on the language used by Plaintiff. Plaintiff claims he had a First Amendment right to express himself in that way, but Plaintiff scratched out the offending language and resubmitted the 602. On July 25, 2018, Plaintiff submitted a new and separate 602 appeal about defendant Lucas for violating Plaintiff's free speech rights when he rejected the prior appeal.
Plaintiff claims that defendant Lucas rejected the prior appeal because Plaintiff was being critical of Lucas's actions. The appeal was rejected again by defendant Gonzales [not a defendant] for missing a document that Plaintiff claims was attached to the appeal. Plaintiff claims that defendant Gonzales [not a defendant] rejected the 602 appeal to keep Plaintiff from exercising his right to free speech. Plaintiff alleges that defendant Lucas retaliated against him in violation of his right to free speech and that by using the word “bullshit, ” he only meant that defendant Lucas's reasons were insincere, exaggerated or nonsense, as reflected in Webster's New College Dictionary's definition of “bullshit.” Plaintiff asserts that he was not attempting to convey vulgar or threatening sentiments and therefore there was no legitimate penological reason for Defendant's actions. Plaintiff alleges that his appeals should not have been rejected and that Defendant acted with ill will and was following unwritten doctrine and practice of the “Code of Silence, ” which mandates one staff member to do what he can to shield and protect another from complaint that would have an adverse effect upon employment. (ECF No. 12 at 10-11.)
As relief, Plaintiff seeks monetary damages and costs of suit.
IV. REQUEST FOR JUDICIAL NOTICE
Defendant requests the court to take judicial notice of the 2018 version of 15 CCR § 3084.6, which is part of CDCR's DOM (Department Operations Manual). Defendant has submitted a copy of the 2018 version of 15 CCR § 3084.6, titled “Rejection, Cancellation, and Withdrawal Criteria, ” attached to the motion to dismiss as Exhibit 1.
“Courts may only take judicial notice of adjudicative facts that are not subject to reasonable dispute.” United States v. Ritchie, 342 F.3d 903, 908-09 (9th Cir. 2003) (citing Fed.R.Evid. 201(b)). “Facts are indisputable, and thus subject to judicial notice, only if they either ‘generally known'. . . or capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned[.]” Id. at 909. The Court may take judicial notice of matters of public record, including records and reports of administrative agencies. United States v. 14.02 Acres of Land More or Less in Fresno County, 547 F.3d 943, 955 (9th Cir. 2008) (quotations marks and citations omitted). Shabazz v. Giurbino, No. 111CV01558DADSABPC, 2017 WL 2671082, at *3 (E.D. Cal. June 21, 2017). On a motion to dismiss, the court may take judicial notice of matters of public record, but cannot take judicial notice of disputed facts contained in such public records. Fed.R.Evid. 201(b)(2). Baird v. BlackRock Institutional Tr. Co., N.A., 403 F.Supp.3d 765 (N.D. Cal. 2019).
CDCR's DOM is a proper subject for judicial notice. See Brown v Valoff, 422 F.3d 926, 931 n.7 (9th Cir. 2005) (...
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