Opinion
Civil No. 00-0721-HA
September 18, 2001
Lee Warren, Snake River Correctional Institution, Ontario, OR, Plaintiff, Pro Se.
Hardy Myers, Attorney General, Leonard W. Williamson, Assistant Attorney General, Department of Justice, Salem, OR, Attorneys for Defendant Ruffcorn.
Jeff Bildstein, Noah Jarrett, Keating, Jones, Bildstein Hughes, P.C., Portland, OR, Attorneys for Defendants Risa Riggen, Jan Bruning and Robert Teal.
OPINION AND ORDER
Plaintiff, an inmate at the Snake River Correctional Institution, brings this civil rights action pro se. Currently before the court are defendant Ruffcorn's motion to dismiss (#18) and defendants Riggen, Bruning and Teal's motion to dismiss (#19). For the reasons set forth below, Ruffcorn's motion to dismiss is denied, and Riggen, Bruning and Teal's motion to dismiss is granted in part and denied in part.
BACKGROUND
Plaintiff filed his original complaint (#2), together with an application to proceed in forma pauperis (#1), on May 26, 2000. On July 24, 2000, the court confirmed plaintiff's in forma pauperis status and dismissed the complaint for failure to state a claim. See 28 U.S.C. § 1915A (requiring court to screen prisoner civil rights cases). Plaintiff was given thirty days in which to file an amended complaint. Plaintiff subsequently requested, and was granted, two extensions of time to file his amended complaint. On November 30, 2000, plaintiff filed his amended complaint (#8).
On December 13, 2000, this court dismissed plaintiff's amended complaint with the exception of Claim III. On December 18, 2000, the court issued a Notice of Lawsuit and Waiver of Service Packet to Assistant Attorney General Jan Londahl. On January 5, 2001, Assistant Attorney General Leonard Williamson returned the waiver of service form, waiving service on behalf of defendant Ruffcorn only.
DISCUSSION
I. Service of Amended Complaint.
Defendants Riggen, Bruning and Teal move to dismiss plaintiff's complaint pursuant to Fed.R.Civ.Pro. 12(b)(5) for insufficient service of process. Defendants assert that they were neither asked to waive service, nor were they served with a summons and plaintiff's amended complaint within the 120-day time period allowed by Fed.R.Civ.Pro. 4(m).
Rule 4(m) provides that "the court, . . . shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period."
A plaintiff who is proceeding in forma pauperis ("IFP") is entitled to rely on the U.S. Marshal's Service to serve the summons and complaint on his behalf. See Fed.R.Civ.P. 4(c)(2). Therefore, a marshal's or court clerk's delays or errors constitute "good cause" to avoid dismissal. Puett v. Blandford, 912 F.2d 270, 273 (9th Cir. 1989); see also In re Sheehan, 253 F.3d 507, 513 (9th Cir. 2001) (in absence of showing of good cause, court has broad discretion in deciding whether to dismiss case for lack of timely service).
In the instant proceeding, the delay in service occurred because the court sent the waiver of service packet to the Assistant Attorney General only (counsel for defendant Ruffcorn) rather than both the Assistant Attorney General and counsel for defendants Riggen, Bruning and Teal. This omission was not remedied by the court upon receipt of the waiver of service form from Assistant Attorney General Williamson, who waived service on behalf of defendant Ruffcorn only.
There is no indication in the record that plaintiff was informed of the fact that defendants Riggen, Bruning and Teal had not waived service of process and should therefore be personally served. Although counsel for defendants Riggen, Bruning and Teal sent a letter to plaintiff on January 11, 2001, indicating that he represented these three defendants, the letter did not advise plaintiff that there was a problem with service.
In light of the foregoing, the court finds good cause to excuse the delay in service. Accordingly, the time for serving defendants Riggen, Bruning and Teal shall be extended. See Puett, 912 F.2d at 273; Fed.R.Civ.Pro. 4(m). Plaintiff shall have an additional 120 days from the date this order is entered to obtain a waiver or effect service on these three defendants. Defendants' motion to dismiss for insufficient service of process is therefore denied. The Clerk of the Court is directed to issue a waiver of service packet to counsel for defendants Riggen, Bruning and Teal. If any of the three defendants decline to waive service, plaintiff shall be provided with summonses and U.S. Marshal Instruction forms for service of process by the U.S. Marshal.
II. Statute of Limitations and Relation Back of Amended Complaint.
Defendants Ruffcorn, Riggen, Bruning and Teal move to dismiss plaintiff's complaint pursuant to Fed.R.Civ.Pro. 12(b)(6), arguing that the applicable statute of limitations bars plaintiff's claim. Defendant Ruffcorn argues that the disciplinary hearing against plaintiff, which forms the basis of plaintiff's complaint, occurred on or about June 12, 1998. Defendant Ruffcorn further argues that because plaintiff filed this suit on November 22, 2000, plaintiff's tort claim is barred by ORS 30.275, which provides a two-year statute of limitations for State employees. Defendants Riggen, Bruning and Teal argue that plaintiff's claim accrued on June 12, 1998, and that while he filed his original complaint within the two-year statute of limitations provided by ORS 12.110, his failure to serve the amended complaint on these defendants within 120 days of its filing caused plaintiff to lose the benefit of the filing date of his original complaint because he failed to timely commence his cause of action against these defendants. Finally, Riggen, Bruning and Teal argue, the applicable statute of limitations would bar the re-filing of plaintiff's claims against them.
This argument is an incorrect characterization of plaintiff's claim and an incorrect application of the statute. Plaintiff alleges a civil rights claim pursuant to 42 U.S.C. § 1983; therefore ORS 12.110 applies. See discussion, infra.
Since 42 U.S.C. § 1983 contains no statute of limitations, federal courts apply the forum state's general statute of limitations for personal injury actions. Wilson v. Garcia, 471 U.S. 261, 276 (1985); Elliot v. City of Union City, 25 F.3d 800, 801-02 (9th Cir. 1994); Clavette v. Sweeney, 132 F. Supp.2d 864, 873 (D.Or. 2001). For § 1983 actions in Oregon, the applicable personal injury statute is ORS 12.110(1), which provides a two-year statute of limitations. Clavette, 132 F. Supp.2d at 873.
Plaintiff alleges that the false disciplinary report was filed, and other threatening conduct by the four defendants occurred, on or after June 12, 1998. Plaintiff's original complaint was therefore timely filed on May 26, 2000.
This court subsequently dismissed the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and 1915A(b) for failure to state a claim, but gave plaintiff leave to file an amended complaint. Plaintiff requested two extensions of time to file his amended complaint, which the court granted, making plaintiff's filing deadline November 24, 2000. Plaintiff attests that he deposited his amended complaint in the prison mail service on November 22, 2000, and the amended complaint was filed with the court on November 30, 2000.
The Ninth Circuit has held that, in § 1983 actions, the law of the forum state determines whether an amended complaint relates back to the filing of the original complaint. See Cabrales v. County of Los Angeles, 864 F.2d 1454, 1462 (9th Cir. 1989); Merritt v. County of Los Angeles, 875 F.2d 765, 786 (9th Cir. 1989); Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989). In Oregon, Or. R. Civ. Pro. 23C, and cases interpreting it, provide the relation back analysis for amended pleadings in a typical § 1983 action. See Clavette, 132 F. Supp.2d at 875; Lund v. City of Gresham, 2000 WL 1364244, *2 (D.Or. 2000); Frevach Land Co. v. Multnomah County Dept. of Environmental Services, 2000 WL 1875839 (D.Or. 2000).
However, even a state rule which is closely related to tolling and application of the statute of limitations will not apply if it is inconsistent with the Constitution and laws of the United States. Wilson, 471 U.S. at 269; see also Board of Regents, Univ. of N.Y. v. Tomanio, 446 U.S. 478, 491 (1980); Keller v. City of Portland, 1998 WL 1060222, *7 (D.Or. 1998). On the contrary, federal courts have a duty to ensure that borrowing state law will not frustrate or interfere with implementing national policies. Wilson, 471 U.S. at 269, n. 18.
The federal statutes at issue in this case are part of the 1996 Prison Litigation Reform Act ("PLRA"), which directs district courts to screen civil complaints filed by prisoners seeking "redress from a governmental entity or officer or employee of a governmental entity," and "identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint — (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A (a)-(b). In addition, if a prisoner litigant chooses to file an IFP application, the court reviews the application to determine whether to waive prepayment of fees and costs, or to collect an initial partial filing fee. 28 U.S.C. § 1915(a)-(c). Finally, if the prisoner's IFP status is confirmed and the case is not subject to dismissal sua sponte pursuant to § 1915A or § 1915(e)(2), the court directs service of the complaint. 28 U.S.C. § 1915(d); Fed.R.Civ.Pro. 4(c)(2).
The screening procedure mandated by § 1915A suspends service, and, combined with review of the IFP application, has the practical effect of causing delay within the court that is not attributable to the incarcerated plaintiff. In this case, although the original complaint was timely filed, it was not served on any of the defendants within the applicable state limitations period. See ORS 12.110, 12.020. Additionally, after screening, if the court dismisses the complaint sua sponte and gives a plaintiff leave to amend, the defendants do not receive formal notice of the lawsuit until the court either requests waiver of service, or serves them with the summons and amended complaint. See 28 U.S.C. § 1915(d); Fed.R.Civ.Pro. 4(c)(2). When adding a new claim, or, as plaintiff has done here, re-pleading to cure deficiencies in the complaint that were identified by the court, such a procedural posture makes standard relation-back analysis impossible. Defendants cannot compare the original with the amended complaint to ascertain whether it arises from the same "conduct, transaction, or occurrence," Fed.R.Civ.Pro. 15(c)(2); Or. R. Civ. Pro. 23C, and also cannot be said to have "fair notice" of the "common core of operative facts" giving rise to the claim prior to the expiration of the statute of limitations. See Martell v. Trilogy Limited, 872 F.2d 322,325 (9th Cir. 1989) (federal standard); Caplener v. United States National Bank of Oregon, 317 Or. 506, 521, 857 P.2d 830, 840 (1993) (Oregon standard).
Oregon's relation back rule does not, on its face, conflict with federal law, since the language of Or. R. Civ. Pro. 23C is nearly identical to Fed.R.Civ.Pro. 15(c)(2). However, the application of Rule 23C is necessarily tied to Or. R. Civ. Pro. 3, which defines commencement, Or. R. Civ. Pro. 7, which sets forth the procedures for service of the summons and complaint, and ORS 12.020, which governs commencement of an action for statute of limitations purposes. Under Oregon law, for statute of limitations purposes, an amended complaint relates back to the "commencement" date, but the commencement date is not the same as the date on which the action was filed unless the summons and complaint were served within sixty days of filing. See Or. R. Civ. Pro. 23C and 3; ORS 12.020; Keller, 1998 WL 1060222 at *5 (citing Baker v. Kennedy, 317 Or. 372, 375, 856 P.2d 314, 315 (1993)).
The Oregon rule provides, in pertinent part, that "[w]henever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading." Or. R. Civ. Pro. 23C.
By contrast, Fed.R.Civ.Pro. 3 provides that the action is commenced on the date the complaint is filed. Fed.R.Civ.Pro. 4(m) gives the plaintiff 120 days to effectuate service, and federal courts also have the discretion to extend the time of service under Rule 4(m). See Puett, 912 F.2d at 273. Finally, federal litigants can request a waiver of service of the summons pursuant to Fed.R.Civ.Pro. 4(d), but Oregon's rules of civil procedure do not provide for waiver of service. See Or. R. Civ. Pro. 7.
If this court were to borrow and apply Or. R. Civ. Pro. 23C, together with its related provisions regarding commencement and service, to § 1983 claims filed by prisoner litigants, the court would thereby limit itself to as little as sixty days in which to make the substantive, potentially outcome determinative decisions required by the PLRA, direct the plaintiff to amend and re-file the complaint, and then prepare and serve the summons and amended complaint. Such a practice directly conflicts with Fed.R.Civ.Pro. 3, 4(m) and 4(d), and is inconsistent with the screening provisions of the PLRA. The choice to apply federal law in this case is not inconsistent with Ninth Circuit authority. This court therefore declines to borrow and apply Or. R. Civ. Pro. 23C, 3, and 7, as well as ORS 12.020, to plaintiff's § 1983 claim because 28 U.S.C. § 1915 and 1915A are implicated, and will instead apply federal law regarding relation back of amendments, commencement, and service. See Keller, 1998 WL 1060222 at *6-8 (finding that ORS 12.020 is inconsistent with federal law, and declining to apply it in a § 1983 action because the statute directly conflicts with Fed.R.Civ.Pro. 3 and 4(m)); see also Bivens v. Cook, 2000 WL 236369, *4-5 (D.Or. 2000) (applying Fed.R.Civ.Pro. 4(m) and 15(c) in a § 1983 action involving an IFP prisoner litigant).
Cabrales and its progeny are distinguishable, since the cases do not involve plaintiffs who were subject to the PLRA's mandatory screening provisions, and there were no findings that state relation back rules directly conflicted with federal law. 864 F.2d at 1464; see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (in a § 1983 action involving PLRA's screening provisions, "amendment policy is informed by Federal Rule of Civil Procedure 15(a), which provides that leave to amend should be freely granted 'when justice so requires.'").
Applying Fed.R.Civ.Pro. 3, plaintiff's lawsuit was timely commenced, and the statute of limitations tolled, when he filed his original complaint on May 26, 2000. In order to allow 28 U.S.C. § 1915 and 1915A to operate harmoniously with Fed.R.Civ.Pro. 15(c) and 4(m), where delay in screening plaintiff's complaint consumed the 120-day period for service, and an amendment was ordered by the court to cure defects, the time for service is suspended until this court enters an order directing service of the amended complaint. See Urrutia v. Harrisburg County Police Dept., 91 F.3d 451, 459-60 (3rd Cir. 1996). Plaintiff's amended complaint was timely filed and the waiver of service was executed by defendant Ruffcorn within 120 days of the court's December 13, 2000, Order directing service. This court has expressly extended the time for service of the amended complaint with respect to defendants Riggen, Bruning and Teal. Fed.R.Civ.Pro. 4(m); see also discussion, supra, at Part I. Upon entry of this order directing the clerk to issue a waiver of service packet to these three defendants, enclosing the amended complaint, the 120-day period of Rule 4(m) will begin to run again. See Id. at 460.
As a practical matter, because the plaintiff's original complaint was not served on the defendants by operation of 28 U.S.C. § 1915 and 1915A, in order to apply those statutory provisions in conjunction with federal relation back rules the court, rather than the defendants, must examine plaintiff's amended complaint to determine whether it alleges claims that arise from the same "conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." Fed.R.Civ.Pro. 15(c)(2); see also Bivens, 2000 WL 236369 at *4-5 (applying Fed.R.Civ.Pro. 15(c), the court examined allegations in the original and amended complaints to determine whether the amended complaint related back). If plaintiff's amended complaint relates back to the filing date of the original, it will not be barred by the applicable statute of limitations.
In this case, plaintiff's amended complaint plainly alleges, albeit with additional supporting facts, claims that arose from the same "conduct, transaction, or occurrence," and involving the same time period, that he attempted to set forth in his original complaint. Plaintiff re-alleges facts from the original complaint to support a claim of retaliation: that defendant Bruning, at the direction of defendant Riggen, unlawfully appropriated "rehabilitation program" documents that he had written, that all of the defendants conspired to file a false disciplinary report against plaintiff, and that defendants Ruffcorn, Riggen and Teal all threatened plaintiff, and engaged in retaliatory conduct because plaintiff complained about their activities to the Oregon Department of Corrections Internal Affairs. Because Claim III in plaintiff's amended complaint stems from the same "conduct, transaction, or occurrence" set forth in the original complaint, so that the court is able to discern a retaliation claim grounded in the First Amendment, the amended complaint relates back to the May 26, 2000, filing date of the original complaint. See Martell, 872 F.2d at 325. Therefore, Claim III is not barred by the two-year statute of limitations as to defendants Ruffcorn, Riggen, Bruning and Teal.
For the reasons set forth in Part III, infra, the court construes Claim III of plaintiff's amended complaint as stating a claim for retaliation against all of the defendants.
Plaintiff does not allege the date on which his property was taken, nor does he allege the date or dates on which he complained about the defendants' conduct to the Oregon Department of Corrections Internal Affairs in either the original or the amended complaint. However, in both the original and amended complaints, plaintiff alleges that defendants filed a false disciplinary report against him on June 12, 1998, that the filing was retaliatory in nature, and that the defendants engaged in retaliatory conduct after the date of the report.
III. Failure to State a Claim.
Defendants Riggen, Bruning and Teal move to dismiss plaintiff's complaint for failure to state a claim upon which relief can be granted, arguing that plaintiff failed to show that the three defendants deprived him of a right secured by the Eighth Amendment, and that plaintiff failed to show that the three defendants acted "under color of state law."
"In federal court, dismissal for failure to state a claim is proper 'only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Cervantes v. City of San Diego, 5 F.3d 1273, 1274 (9th Cir. 1993) (quoting Hishon v. King Spalding, 467 U.S. 69, 73 (1984)); Tanner v. Heise, 879 F.2d 572, 576 (9th Cir. 1989). In making this determination, this court accepts all allegations of material fact as true and construes the allegations in the light most favorable to the nonmoving party. Tanner, 879 F.2d at 576. In civil rights cases involving a plaintiff proceeding pro se, this court construes the pleadings liberally and affords the plaintiff the benefit of any doubt. McGuckin v. Smith, 974 F.2d 1050, 1055 (9th Cir. 1992), overruled on other grounds by WMX Tech., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1998); Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988).
A. Eighth Amendment Claim
Defendants Riggen, Bruning and Teal move to dismiss plaintiff's complaint because it fails to state a claim that the three defendants violated plaintiff's Eighth Amendment right to freedom from cruel and unusual punishment.
This court found, in its December 13, 2000, Order dismissing laintiff's amended complaint in part, that plaintiff failed to allege an Eighth Amendment violation in Claim V. Defendants Riggen, Bruning and Teal did not receive copies of the December 13, 2000, Order because it was issued and sent together with the amended complaint and request for waiver of service, which the three defendants also did not receive. Plaintiff has filed no further response in support of his Eighth Amendment claim.
To the extent that plaintiff also attempts, in Claim III, to state an Eighth Amendment claim, the court finds it insufficient here as well. Plaintiff alleges that personal written documents were wrongfully taken from his cell by defendant Bruning, at the direction of defendant Riggen, and that all of the defendants threatened him to remain silent about this incident, as well as other incidents of wrongful conduct carried out by the defendants, thereby discouraging him from speaking to prison officials. The defendants also allegedly engaged in various retaliatory acts, including threatening to file, and actually filing a disciplinary report that was later found to be "not supported by evidence," threatening to move plaintiff to another institution, threatening to report false information to the parole board, and threatening to encourage other inmates to bully plaintiff. Further, plaintiff alleges that all of the defendants infringed on his Constitutional rights by carrying out some of their threats after plaintiff cooperated with a prison internal affairs investigator during the course of investigating the June 12, 1998, disciplinary report. Threats allegedly carried out by defendants included identifying plaintiff as a "snitch" to other inmates and EOCI security staff, removing him from the counseling program, causing him to lose his job, transferring him to another unit, and giving him a lower paying job.
Defendants Riggen, Bruning and Teal correctly argue that the conditions of confinement about which plaintiff complains in Claim III do not rise to the level of "denial of 'the minimal civilized measure of life's necessities,'" Farmer, 511 U.S. at 834 (quoting Rhodes v. Chapman, 452 U.S. 337, 348 (1981), and that plaintiff does not allege that Riggen, Bruning and Teal committed any of the denials at issue with a "sufficiently culpable" state of mind. Id.; see also Wilson v. Seiter, 501 U.S. 294, 299 (1991) (denial or conduct at issue must be "wanton").
There is no Eighth Amendment violation where prisoner is threatened to be labeled, or actually is labeled as a snitch by prison staff absent allegations that he was subjected to retaliation at the hands of his fellow inmates. Morgan v. MacDonald, 41 F.3d 1291, 1293-34 (9th Cir. 1994). In addition, the three defendants correctly argue that plaintiff fails to state an Eighth Amendment claim because prisoners do not have a right to vocational or rehabilitative programs, Hoptowit v. Ray, 682 F.2d 1237, 1254-55 (9th Cir. 1982); Toussaint v. McCarthy, 801 F.2d 1080, 1106-1108 (9th Cir. 1986), and prisoners do not have a right to maintain unnecessary personal property items. Walker v. Sumner, 14 F.3d 1421 (9th Cir. 1993); Keenan v. Hall, 83 F.3d 1083, 1089-92 (9th Cir. 1996).
The amended complaint also fails to state a claim for damages under the Eighth Amendment because it does not provide a basis for inferring that defendants Riggen, Bruning and Teal were aware that their actions exposed plaintiff to a substantial risk of serious harm. Morgan, 41 F.3d at 1293-94; see also Farmer v. Brennan, 511 U.S. 825, 837 (1994). Further, plaintiff does not allege that he was psychologically or emotionally injured by Riggen, Bruning or Teal's verbal threats and harassment, so his claim is not actionable under the Eighth Amendment. Keenan, 83 F.3d at 1092. However, while plaintiff fails to state a claim under the Eighth Amendment, he does allege facts sufficient to support a retaliation claim against defendants Riggen, Bruning and Teal. See Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997), cert. denied, 524 U.S. 936 (1998); Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). Threatening acts, if aimed to silence plaintiff, infringe on his First Amendment rights. See Hines, 108 F.3d at 269 (false disciplinary report filed by prison guard infringed First Amendment right to file prison grievances). Because this court, construing plaintiff's amended complaint liberally, finds that plaintiff states a retaliation claim grounded in the First Amendment, defendants Riggen, Bruning and Teal's motion to dismiss pursuant to Fed.R.Civ.Pro. 12(b)(6) is denied with respect to Claim III.
B. State Action
Defendants Riggen, Bruning and Teal move to dismiss plaintiff's complaint, contending that they are private parties whose conduct may not appropriately be characterized as "state action," and therefore they were not acting under color of state law for the purposes of § 1983.
In order to state a claim under 42 U.S.C. § 1983, plaintiff must plead that the defendants, acting under color of state law, deprived plaintiff of a right secured by the Constitution or federal law. American Mfr. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999); Johnson v. Knowles, 113 F.3d 1114, 1117 (9th Cir.), cert. denied, 522 U.S. 996 (1997). Further, in an action where a plaintiff complains of a deprivation of rights secured by the Fourteenth Amendment, he must allege that there was "state action." Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 (1982). If a defendant's conduct satisfies the "state action" requirement of the Fourteenth Amendment, then the conduct also constitutes "action under color of state law and will support a suit under § 1983." Id. at 935; see also Collins v. Womancare, 878 F.2d 1145, 1148 (9th Cir. 1989) (treating state action and action under color of law requirements as equivalent).
Although the amended complaint does not describe the "S.T.E.P.S." program in detail, it identifies defendants Bruning and Teal as counselors, and Riggen as a program manager; it states that the program was affiliated with and carried out within the Eastern Oregon Correctional Institution ("EOCI"); that the defendants worked in concert with defendant Ruffcorn, who is undisputedly a state employee; and it alleges wrongful conduct carried out by all of the defendants during the course of performing their duties at EOCI.
A private person acts under color of state law if he willfully participates in joint action with state officials to deprive others of their constitutional rights, or deliberately cloaks himself with the authority of state law. Johnson, 113 F.3d at 1119; Vang v. Xiong, 944 F.2d 476, 479 (9th Cir. 1991); Taylor v. List, 880 F.2d 1040, 1048 (9th Cir. 1989). Construing the amended complaint liberally and affording plaintiff the benefit of any doubt, the court finds that plaintiff has sufficiently alleged facts indicating that defendants Riggen, Bruning and Teal were acting under color of state law sufficient to support a suit under § 1983.
IV. Injuctive Relief.
Defendants Riggen, Bruning and Teal contend that, because plaintiff has been transferred from EOCI to Snake River Correctional Institute ("SCRI"), as evidenced by the address on the Certificate of Service attached to plaintiff's amended complaint, his request for injunctive relief is moot.
A motion to dismiss for failure to state a claim challenges the pleadings, and a court may consider exhibits submitted with the complaint as well as matter that may be judicially noticed pursuant to Fed.R.Evid. 201, without converting a Rule 12(b)(6) motion into a motion for summary judgment under Rule 56. Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279, 1282 (1986); Smeltzer v. Slater, 93 F. Supp.2d 1095, 1099 (C.D.Cal. 2000). This court takes judicial notice of the fact that plaintiff's address indicates that he is currently housed at SRCI. See id.
Transfer to SRCI renders plaintiff's request for injunctive relief related to the conditions of confinement at EOCI moot, because the complaint lacks factual allegations of ongoing harassment or other wrongful conduct at SRCI by defendants Riggen, Bruning and Teal, and shows no evidence of an expectation of being transferred back to EOCI. See Preiser v. Newhich, 422 U.S. 395, 402-03 (1975); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1990). Therefore, the three defendants' request to dismiss plaintiff's request for injunctive relief is granted.
CONCLUSION
Based on the foregoing, defendant Ruffcorn's motion to dismiss (#18) is DENIED.
Defendants Riggen, Bruning and Teal's motion to dismiss (#19) is DENIED on the basis of insufficient service of process and on the basis that plaintiff's complaint is time-barred. Defendants Riggen, Bruning and Teal's motion to dismiss is GRANTED with respect to plaintiff's Eighth Amendment claim; however, Claim III survives as a retaliation claim grounded in the First Amendment. Further, the three defendants' motion to dismiss plaintiff's request for injunctive relief as moot is GRANTED.
The Clerk of the Court is DIRECTED to issue a waiver of service packet to counsel for defendants Riggen, Bruning and Teal. Plaintiff shall have an additional 120 days from the date this order is entered to obtain a waiver or effect service on these three defendants. If any of the three defendants decline to waive service, plaintiff shall be provided with summonses and U.S. Marshal Instruction forms for service of process by the U.S. Marshal.
IT IS SO ORDERED.