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Peck v. Nevin

United States District Court, D. Nevada

September 29, 2014

Frank M. Peck, Plaintiff,
Dwight Nevin, et al. Defendants.


GLORIA M. NAVARRO, Chief District Judge.

Pending before the Court is Defendants' Motion to Dismiss, (ECF No. 20). Plaintiff filed a Response, (ECF No. 24), and Defendants filed a Reply, (ECF No. 25).

Plaintiff Frank M. Peck alleges that he was denied access to the courts and suffered retaliation for filing a grievance on August 18, 2012, against the law library supervisor at High Desert State Prison ("HDSP"). (Compl.[1], ECF No. 11). Plaintiff was an inmate incarcerated at HDSP during a cell search that was conducted on August 26, 2012. ( Id. ). During the search, nine boxes were removed from Plaintiff's cell which were not returned until the following day. ( Id. at 3; Defs.' Mot. at 5, ECF No. 20). Plaintiff brings this action against: Dwight Neven, Warden of HDSP; Pam Del Forto, Inspector General; Bonnie Hunt, Inspector General; I.G. Shields, Inspector General; Correctional Officers Sydiongco, Brugh, and Murillo; and doe defendants.

Plaintiff alleges that, in retaliation for his filing the grievance, Defendants Sydiongco, Brugh, and Murillo confiscated his legal materials, including a supplemental petition for a writ of habeas corpus that he intended to file in his state court criminal case. (Compl. at 7). Plaintiff claims that his rights under the First, Fourth, Fifth, Sixth, and Fourteenth Amendments were violated by defendants' retaliation and denial of his access to the courts. (Compl. at 6). Plaintiff seeks compensatory damages in excess of twenty thousand dollars, punitive damages, as well as declaratory and injunctive relief based on these alleged Constitutional violations. (Compl. at 11).


A. Motion to Dismiss

Dismissal is appropriate under Rule 12(b)(6) where a pleader fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A pleading must give fair notice of a legally cognizable claim and the grounds on which it rests, and although a court must take all factual allegations as true, legal conclusions couched as a factual allegation are insufficient. Twombly, 550 U.S. at 555. Accordingly, Rule 12(b)(6) requires "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id.

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). "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. This standard "asks for more than a sheer possibility that a defendant has acted unlawfully." Id.

"Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion." Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). "However, material which is properly submitted as part of the complaint may be considered." Id. Similarly, "documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss" without converting the motion to dismiss into a motion for summary judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). On a motion to dismiss, a court may also take judicial notice of "matters of public record." Mack v. S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if a court considers materials outside of the pleadings, the motion to dismiss is converted into a motion for summary judgment. Fed.R.Civ.P. 12(d).

If the court grants a motion to dismiss for failure to state a claim, leave to amend should be granted unless it is clear that the deficiencies of the complaint cannot be cured by amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992). Pursuant to Rule 15(a), the court should "freely" give leave to amend "when justice so requires, " and in the absence of a reason such as "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc." Foman v. Davis, 371 U.S. 178, 182 (1962).

B. Retaliation

"A prisoner suing prison officials under [ยง] 1983 for retaliation must allege that he was retaliated against for exercising his constitutional rights and that the retaliatory action does not advance legitimate penological goals, such as preserving institutional order and discipline." Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curium); see also Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). Within the prison context, a viable claim of First Amendment retaliation entails five basic elements:

(1) An assertion that a state actor took some adverse action ...

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