United States District Court, D. Nevada
PHILLIP J. LYONS, Plaintiff(s),
STATE OF NEVADA, ex rel. et al., Defendant(s)
JAMES C. MAHAN, District Judge.
Presently before the court is defendant State of Nevada's (hereinafter "defendant") partial motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc # 103). Plaintiff Phillip Lyons (hereinafter "plaintiff") filed an opposition. (Doc. #107). Defendant has not filed a reply.
This is a pro se civil rights action in which plaintiff filed a complaint alleging eleven civil rights violations that purportedly occurred while plaintiff was in state custody. (Doc. #72). Plaintiff alleges that these violations took place between May 9, 2008, and the present while plaintiff was housed at Nevada State Prison ("NSP"), Ely State Prison ("ESP"), and Southern Desert Correctional Center ("SDCC").
Defendant moves to dismiss counts II and IV against defendant Helling and count V against defendant Willis. Count II alleges a violation of the Eighth Amendment for cruel and unusual punishment and Fourteenth Amendment due process violations. Count IV alleges a violation of the First Amendment for retaliation and Fourteenth Amendment due process violations. Count V alleges a violation of the Eighth Amendment for cruel and unusual punishment and Fourteenth Amendment due process violations.
II. Legal Standard
The court may dismiss a plaintiff's 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). Although rule 8 does not require detailed factual allegations, it does require more than labels and conclusions. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Further, a formulaic recitation of the elements of a cause of action will not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (citation omitted). Rule 8 does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Id. at 678-79.
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." Id. 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. Id. When a complaint pleads facts that are merely consistent with a defendant's liability, and shows only a mere possibility of entitlement, the complaint does not meet the requirements to show plausibility of entitlement to relief. Id.
In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when considering a motion to dismiss. Id. First, the court must accept as true all of the allegations contained in a complaint. However, this requirement is inapplicable to legal conclusions. Id. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. 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. at 679.
As an initial matter, the court acknowledges that the complaint was filed pro se and is therefore held to less stringent standards. Erickson v. Pardus, 551 U.S. 89, 94 (2007) ("A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.").
A. 42 U.S.C. § 1983
To establish a cognizable claim under section 1983, a plaintiff must allege two elements: (1) that the defendant violated a right secured by the Constitution and laws of the United States, and (2) that the defendant was acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); see also Long v. Cnty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).
Liability under section 1983 arises only upon personal participation by the defendant. Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979). Further, because there is no respondeat superior liability under section 1983, a supervisor is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). A person participates, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to ...