Blackmon v. Division of Adult Parole Operation Region 2 et al

Filing 27

ORDER GRANTING 23 MOTIONS to Dismiss AND MOTION TO AMEND MOTION TO DISMISS. Signed by Judge Jeffrey S. White on 12/21/11. (jjoS, COURT STAFF) (Filed on 12/21/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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Plaintiff,
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v.
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CALIFORNIA DEPARTMENT OF
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CORRECTIONS AND
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REHABILITATION, DIVISION OF
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ADULT PAROLE OPERATION,
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REGION 2; J. LARSON; JAMES
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SCAVER; RAY POLIAKOFF;
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Defendant.
__________________________________ )
VALDEZ BLACKMON,

No. C 11-3948 JSW (PR)
ORDER GRANTING MOTIONS
TO DISMISS AND MOTION TO
AMEND MOTION TO DISMISS

(Docket Nos. 11, 21, 23)

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INTRODUCTION
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Plaintiff, a parolee of the State of California, filed this pro se civil rights action
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pursuant to 42 U.S.C. § 1983. Defendants J. Larson, James Scaver, and Ray Poliakoff,
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filed a motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of
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Civil Procedure on the grounds that the complaint fails to state a cognizable claim for
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relief. They later filed a motion to amend that motion. Defendant California Department
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of Corrections and Rehabilitation, Division of Adult Parole Operation, Region 2
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(“CDCR”) filed a separate motion to dismiss under Rule 12(b)(6) as well. Plaintiff has
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not opposed the motions. For the reasons discussed below, the motions to dismiss and to
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amend the motion to dismiss are GRANTED.
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DISCUSSION
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Standard of Review
Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement

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of the claim showing that the pleader is entitled to relief." "Specific facts are not

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necessary; the statement need only '"give the defendant fair notice of what the . . . . claim

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is and the grounds upon which it rests."'" Erickson v. Pardus, 127 S. Ct. 2197, 2200

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(2007) (citations omitted). Although in order to state a claim a complaint “does not need

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detailed factual allegations, . . . a plaintiff's obligation to provide the 'grounds of his

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'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic

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recitation of the elements of a cause of action will not do. . . . Factual allegations must

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be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v.

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Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint must proffer

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"enough facts to state a claim for relief that is plausible on its face." Id. at 1974. The

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United States Supreme Court has recently explained the “plausible on its face” standard

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of Twombly: “[w]hile legal conclusions can provide the framework of a complaint, they

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must be supported by factual allegations. When there are well-pleaded factual

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allegations, a court should assume their veracity and then determine whether they

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plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950

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(2009).

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In deciding a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of

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Civil Procedure, the Court must limit its review to the contents of the complaint, Clegg v.

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Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994), including documents

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physically attached to the complaint or documents the complaint necessarily relies on

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and whose authenticity is not contested, Lee v. County of Los Angeles, 250 F.3d 668, 688

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(9th Cir. 2001). Allegations of fact in the complaint must be taken as true and construed

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in the light most favorable to the non-moving party. Sprewell v. Golden State Warriors,

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266 F.3d 979, 988 (9th Cir. 2001). The Court need not, however, “accept as true

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allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable

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inferences.” Id.

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Pro se pleadings must be construed liberally on a defendant’s motion to dismiss

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for failure to state a claim. Ortez v. Washington County Oregon, 88 F.3d 804, 807 (9th

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Cir. 1996). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two

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elements: (1) that a right secured by the Constitution or laws of the United States was

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violated, and (2) that the alleged violation was committed by a person acting under the

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color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

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B.

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Analysis
The only allegation in the complaint is that “[i]t is unconstitutional to inflict

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‘serious psychological pain’ on inmate to served [sic] ‘minor [Correctional] concern

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[sic].” (Complaint at 2.) Even liberally construing it in Plaintiff’s favor, this allegation

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is wholly conclusory. Plaintiff does not allege, and it cannot be inferred, what actions

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any defendant took, or how such actions violated any of Plaintiff constitutional rights.

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Defendant CDCR is, furthermore, immune from suit under the Eleventh Amendment.

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Brown v. Cal. Dep't of Corrs., 554 F.3d 747, 752 (9th Cir. 2009) (California Department

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of Corrections entitled to 11th Amendment immunity). The complaint must be dismissed

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on these grounds.
CONCLUSION

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For the foregoing reasons, Defendants’ motion to amend a motion to dismiss and
their motions to dismiss, as amended, are GRANTED and this case is DISMISSED.

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The Clerk shall enter judgment and close the file.

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IT IS SO ORDERED.

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DATED: December 21, 2011

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JEFFREY S. WHITE
United States District Judge

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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VALDEZ BLACKMON,

Case Number: CV11-03948 JSW

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Plaintiff,

CERTIFICATE OF SERVICE

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v.

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DIVISION OF ADULT PAROLE
OPERATION et al,
Defendant.

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on December 21, 2011, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office
delivery receptacle located in the Clerk's office.

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Valdez Blackmon
P.O. Box 213
Palo Alto, CA 94025

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Dated: December 21, 2011

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Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk