Nible v. Fink et al
Filing
24
ORDER Granting 12 Motion to Dismiss for Failure to State a Claim; and Adopting 15 Report and Recommendation. Defendants Self, Soto, and Olivarria and Counts 9 through 11 are dismissed. Signed by Judge Cynthia Bashant on 1/4/18. (All non-registered users served via U.S. Mail Service)(dlg)
1
2
3
4
5
6
7
8
9
10
UNITED STATES DISTRICT COURT
11
SOUTHERN DISTRICT OF CALIFORNIA
12
13
WILLIAM L. NIBLE,
Plaintiff,
14
ORDER:
v.
15
16
Case No. 16-cv-02849-BAS-PCL
(1) OVERRULING PLAINTIFF’S
OBJECTIONS (ECF No. 20);
FINK, et al.,
Defendants.
17
(2) ADOPTING REPORT AND
RECOMMENDATION (ECF No. 15);
AND
18
19
20
(3) GRANTING MOTION TO
DISMISS (ECF No. 12)
21
22
23
I.
INTRODUCTION
24
This Court previously granted Defendants’ Motion to Dismiss for failure to state a
25
claim, but gave Plaintiff leave to amend. (ECF No. 9.) Plaintiff has now filed a First
26
Amended Complaint (“FAC”). (ECF No. 10.) Defendants B. Self, V. Sosa, and R.
27
Olivarria move to dismiss Counts 9 through 11 of the FAC (the only counts in which they
28
are named). (ECF No. 12.)
1
16cv2849
1
The allegations against these three defendants state only that the defendants “refused
2
or failed to process Plaintiff’s grievance in accordance with California Code of
3
Regulations.” (FAC ¶¶ 34-36.) Relying on Ramirez v. Galaza, 334 F.3d 850 (9th Cir.
4
2003) and Mann v. Adams, 855 F.2d 639 (9th Cir. 1988), the Magistrate Judge’s Report &
5
Recommendation (“R&R”) recommends that the Motion to Dismiss be granted because
6
“inmates have no procedural due process right in the prison administrative grievance
7
process.” (ECF No. 15 at 9.) For the reasons discuss below, this Court agrees and adopts
8
the R&R in its entirety.
9
10
II.
LEGAL STANDARD
11
A.
12
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil
13
Procedure tests the legal sufficiency of the claims asserted in the complaint. Fed. R. Civ.
14
P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). The court must accept
15
all factual allegations pleaded in the complaint as true and must construe them and draw
16
all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty
17
Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). To avoid a Rule 12(b)(6) dismissal,
18
a complaint need not contain detailed factual allegations, rather, it must plead “enough
19
facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
20
U.S. 544, 570 (2007). A claim has “facial plausibility when the plaintiff pleads factual
21
content that allows the court to draw the reasonable inference that the defendant is liable
22
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly,
23
550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a
24
defendant’s liability, it stops short of the line between possibility and plausibility of
25
‘entitlement to relief.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).
Motion to Dismiss
26
When a plaintiff appears pro se, the court must be careful to construe the pleadings
27
liberally and to afford the plaintiff any benefit of the doubt. See Erickson v. Pardus, 551
28
U.S. 89, 94 (2007); Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). The rule of
2
16cv2849
1
liberal construction is “particularly important” in civil rights case. Hendon v. Ramsey, 528
2
F. Supp. 2d 1058, 1063 (S.D. Cal. 2007) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261
3
(9th Cir. 1992)).
4
When giving liberal construction to a pro se civil rights complaint, however, the
5
court is not permitted to “supply essential elements of the claim [] that were not initially
6
pled.” East v. CDC, 694 F. Supp. 2d 1177, 1183 (S.D. Cal. 2010) (quoting Ivey v. Bd. Of
7
Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982)). “Vague and conclusory
8
allegations of official participation in civil rights violations are not sufficient to withstand
9
a motion to dismiss.” Id. (quoting Ivey, 673 F.2d at 268).
10
11
B.
12
The Court reviews de novo those portions of a magistrate judge’s report and
13
recommendation to which objections are made. 28 U.S.C. § 636(b)(1). The Court may
14
“accept, reject, or modify, in whole or in part, the findings or recommendations made by
15
the magistrate judge.” Id. “The statute [28 U.S.C. § 636(b)(1)(c)] makes it clear,”
16
however, “that the district judge must review the magistrate judge’s findings and
17
recommendations de novo if objection is made, but not otherwise.” United States v. Reyna-
18
Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); see also
19
Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (concluding that where
20
no objections were filed, the district court had no obligation to review the magistrate
21
judge’s report). “Neither the Constitution nor the statute requires a district judge to review,
22
de novo, findings and recommendations that the parties themselves accept as correct.”
23
Reyna-Tapia, 328 F.3d at 1121.
Report and Recommendation
24
Objections must be written and specific. See, e.g., Fed. R. Civ. Pr. 72(b)(2) (“[A]
25
party may serve and file specific written objections to the proposed findings and
26
recommendations” of the magistrate judge). “Numerous courts have held that a general
27
objection to the entirety of a Magistrate Judge’s [report and recommendation] has the same
28
effect as a failure to object.” Alcantara v. McEwen, No. 12-cv-401-IEG, 2013 WL
3
16cv2849
1
4517861, at *1 (S.D. Cal. Aug. 15, 2013) (citing cases). In the absence of specific
2
objection, the clear weight of authority indicates that the court need only satisfy itself that
3
there is no “clear error” on the face of the record before adopting the magistrate judge’s
4
recommendation. See, e.g., Fed. R. Civ. P. 72(b) Advisory Comm. Notes (1983) (citing
5
Campbell v. United States Dist. Court, 501 F.3d 196, 206 (9th Cir. 1974)).
6
7
II.
ANALYSIS
8
Citing Procunier v. Martinez, 416 U.S. 396 (1974), Plaintiff’s objections focus on
9
his allegations that he was entitled to receive mail and to practice his religion freely.1 In
10
fact, his objections focus largely on Defendant Fink’s actions in depriving him of his
11
religious runes. This Motion to Dismiss has not been filed on behalf of Defendant Fink.
12
Defendant Fink is still in the case.
13
Instead, this Motion to Dismiss focuses on the three defendants who, according to
14
the FAC, were only involved in processing Plaintiff’s grievance after he was allegedly
15
deprived of his religious runes. As the R&R points out, “[t]here is no legitimate claim of
16
entitlement to a grievance procedure.” Mann v. Adams, 855 F.2d at 640. A district court
17
may properly dismiss a claim of a constitutional violation made in connection with the
18
handling of the inmate’s grievance. See McCoy v. Roe, 509 Fed. Appx. 660, 660 (9th Cir.
19
2013) (citing Ramirez v. Galaza, 334 F.3d at 860).2
20
The fact that Plaintiff alleges First Amendment violations in his FAC is of no import
21
because he alleges no facts that would support any action by Defendants Self, Soto, or
22
23
24
25
26
27
28
The problem with this argument is that Plaintiff’s allegations against the three defendants
moving to dismiss do not directly implicate either his right to receive mail or practice his
religion freely.
2
Procunier v. Martinez was actually overruled by Thornburgh v. Abbott, 490 U.S. 401
(1989), which held that prison regulations affecting a prisoner’s receipt of publications
through the mail are valid if they are reasonably related to legitimate penological interests.
Id.
1
4
16cv2849
1
Olivarria that deprived him of any First Amendment right. He only alleges that they
2
improperly processed his grievance. Therefore, the Court adopts the R&R in its entirety
3
and finds, even under a de novo review, the R&R is still plainly correct.
4
5
III.
CONCLUSION & ORDER
6
After conducting a de novo review of the R&R’s reasoning, the Court concludes that
7
Judge Lewis’s reasoning is sound. Accordingly, the Court OVERRULES Petitioner’s
8
objections (ECF No. 20), APPROVES AND ADOPTS the R&R in its entirety (ECF No.
9
15), and GRANTS DEFENDANTS’ MOTION TO DISMISS (ECF No. 12). Defendants
10
Self, Soto, and Olivarria and Counts 9 through 11 are dismissed.
11
Because this is Plaintiff’s second attempt to allege facts against Defendants Self,
12
Soto, and Olivarria, and because it appears the only allegations against these defendants
13
have to do with their processing of his grievance, the Court dismisses these Defendants and
14
Counts WITH PREJUDICE. See Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806
15
F.2d 1393, 1401 (9th Cir. 1986) (finding that leave to amend may be denied when “the
16
court determines that the allegation of other facts consistent with the challenged pleading
17
could not possibly cure the deficiency”).
18
IT IS SO ORDERED.
19
20
DATED: January 4, 2018
21
22
23
24
25
26
27
28
5
16cv2849
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?