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Dunlap v. Neven

United States District Court, D. Nevada

June 27, 2014

GEORGE TYRONE DUNLAP, JR., Plaintiffs,
v.
WARDEN D. NEVEN, et al., Defendants.

ORDER

JAMES C. MAHAN, District Judge.

Presently before the court is defendant Ryan Hesler's ("Hesler") motion to dismiss or, in the alternative, motion for summary judgment. (Doc. # 81). Pro se plaintiff George Tyrone Dunlap, Jr. has filed an opposition (doc. # 87) to which Hesler responded (doc. # 88).

Also before the court is plaintiff's second amended complaint (doc. # 44), which was filed without leave of the court.[1]

I. Background

Pursuant to the court's screening order (doc. # 10), plaintiff was permitted to proceed on five counts in his amended complaint (doc. # 11) against High Desert State Prison's ("HDSP") warden and various correctional officers. During all times relevant to the instant complaint, Hesler was a correctional officer at HDSP, where plaintiff was incarcerated. In count four, plaintiff alleges an Eighth Amendment claim against Hesler, alleging that Hesler sexually harassed him on July 21, 2012, when Hesler allegedly told the inmates that he would be checking "dicks because he was the dick police." (Doc. # 11, p. 16).

In the instant motion, Hesler argues that the alleged conduct does not comprise a constitutional violation under the Eighth Amendment. Hesler seeks dismissal or, in the alternative, summary judgment. (Doc. # 81).

II. Legal Standard s

A court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A properly pled complaint must provide "[a] short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual allegations, it demands "more than labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

"Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to "state a claim to relief that is plausible on its face." Iqbal, 556 U.S. 662, 678 (citation omitted).

In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when considering motions to dismiss. First, the court must accept as true all well-pled factual allegations in the complaint; however, legal conclusions are not entitled to the assumption of truth. Id. at 678-79. Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. Id. at 678.

Second, the court must consider whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 679. A claim is facially plausible when the plaintiff's complaint alleges facts that allow the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 678.

Where the complaint does not permit the court to infer more than the mere possibility of misconduct, the complaint has "alleged-but not shown-that the pleader is entitled to relief." Id. (internal quotations omitted). When the allegations in a complaint have not crossed the line from conceivable to plausible, plaintiff's claim must be dismissed. Twombly, 550 U.S. at 570.

The Ninth Circuit addressed post- Iqbal pleading standards in Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The Starr court stated, "First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to ...


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