1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JIDEOFOR AJAELO, Case No.: 20-cv-2191-WQH-DEB
12 Plaintiff, ORDER 13 v. 14 J. CARRILLO, Correctional Officer, 15 Defendant. 16 HAYES, Judge: 17 The matter before the Court is the Report and Recommendation issued by the 18 Magistrate Judge (ECF No. 17), recommending that the Court grant the Motion to Dismiss 19 Portions of the Complaint filed by Defendant J. Carrillo. (ECF No. 13). 20 I. BACKGROUND 21 On November 9, 2020, Plaintiff Jideofor Ajaelo, a state prisoner proceeding pro se 22 and in forma pauperis, filed a Complaint against Defendant J. Carrillo pursuant to 42 23 U.S.C. § 1983. (ECF No. 1). The Complaint alleges that Plaintiff is a “non-affiliate,” 24 meaning Plaintiff does not “affiliate with any gangs.” (Id. at 3). The Complaint alleges that 25 on April 22, 2019, Defendant told Plaintiff he “was being housed with a new cellmate”— 26 a Crip gang member. (Id.). The Complaint alleges that Plaintiff told Defendant that he is a 27 non-affiliate and “incompatible” with the new cellmate. (Id.). The Complaint alleges that 28 1 Defendant responded, “You guys are both Black and [] nonaffiliate means you can cell up 2 with any gang member.” (Id.). The Complaint alleges that Defendant “engaged in 3 discrimination . . . when he initiated [the] housing move without any regard for [Plaintiff’s] 4 safety or security” and “automatically assumed that because [Plaintiff] was Black that [he] 5 would be compatible to house with another inmate who is black and who is a member of a 6 gang.” (Id.). 7 The Complaint alleges that on April 24, 2019, Plaintiff was moved to another 8 building and tier, where he housed with a non-affiliated inmate. The Complaint alleges that 9 on the same day, Plaintiff received a Rule Violation Report (“RVR”) for “not complying 10 with [Defendant’s] unlawful order.” (Id.). The Complaint alleges that a Senior Hearing 11 Officer found Plaintiff guilty of the RVR and imposed sanctions. The Complaint alleges 12 claims against Defendant for: (1) violation of the Equal Protection Clause of the Fourteenth 13 Amendment; (2) cruel and unusual punishment under the Eighth Amendment; and (3) 14 retaliation. 15 On April 20, 2021, Defendant filed a Motion to Dismiss the cruel and unusual 16 punishment claim and the retaliation claim pursuant to Rule 12(b)(6) of the Federal Rules 17 of Civil Procedure. (ECF No. 13). Plaintiff did not file any opposition to the Motion to 18 Dismiss. 19 On September 21, 2021, the Magistrate Judge issued a Report and Recommendation, 20 recommending that the Court grant Defendant’s Motion to Dismiss. (ECF No. 17). The 21 Magistrate Judge “review[ed] the sufficiency of Ajaelo’s claims on their merits,” even 22 though Plaintiff did not file any opposition to the Motion to Dismiss. (Id. at 4). The Report 23 and Recommendation concluded that the Complaint fails to state a claim for cruel and 24 unusual punishment, because the “Complaint does not plausibly allege that [Plaintiff] faced 25 a substantial risk of serious harm to which Defendant was deliberately indifferent.” (Id. at 26 5). The Report and Recommendation concluded that the Complaint fails to state a claim 27 for retaliation, because: (1) the Complaint “does not plausibly allege that [Plaintiff] 28 engaged in protected conduct;” and (2) “the Court cannot plausibly infer [from the 1 allegations in the Complaint] that the issuance of the RVR did not serve a legitimate 2 correctional goal.” (Id. at 6-7). The Report and Recommendation recommended that the 3 Court dismiss the cruel and unusual punishment claim and the retaliation claim with leave 4 to amend. 5 On October 15, 2021, Plaintiff filed Objections to the Report and Recommendation. 6 (ECF No. 18). Plaintiff objects to the conclusion of the Report and Recommendation that 7 the Complaint fails to state a claim for retaliation. Plaintiff contends that the RVR was 8 “unwarranted,” because Defendant “used the basis of [Plaintiff’s] race” to issue the RVR 9 and did not follow department policy. (Id. at 2-3). Plaintiff’s Objections include new 10 factual allegations and an attached exhibit to “explain the sequence of events and provide 11 clarity” as to why “[t]here was no legitimate correctional goal” with the issuance of the 12 RVR. (Id. at 1). 13 On October 19, 2021, Defendant filed a Reply. (ECF No. 19). Defendant contends 14 that the Report and Recommendation correctly concluded that the Complaint fails to state 15 a retaliation claim. Defendant contends that the “new allegations in Plaintiff’s objection 16 cannot supplement the operative complaint to state a retaliation claim.” (Id. at 2). 17 Defendant further contends that the Complaint does not allege facts sufficient to support 18 an inference that Plaintiff engaged in any protected conduct or that the RVR did not serve 19 a legitimate correctional goal. 20 II. LEGAL STANDARD 21 The duties of the district court in connection with a report and recommendation of a 22 magistrate judge are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 23 U.S.C. § 636(b). The district judge must “make a de novo determination of those portions 24 of the report . . . to which objection is made,” and “may accept, reject, or modify, in whole 25 or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 26 636(b)(1). The district court need not review de novo those portions of a report and 27 recommendation to which neither party objects. See Wang v. Masaitis, 416 F.3d 992, 1000 28 n.13 (9th Cir. 2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) 1 (en banc) (“Neither the Constitution nor the [Magistrates Act] requires a district judge to 2 review, de novo, findings and recommendations that the parties themselves accept as 3 correct.”). 4 III. DISCUSSION 5 Plaintiff does not object to the conclusion of the Report and Recommendation that 6 the Complaint fails to state a claim for cruel and unusual punishment. The Court concludes 7 that the Report and Recommendation correctly concluded that the Complaint fails to state 8 a claim for cruel and unusual punishment. 9 Plaintiff objects to the conclusion of the Report and Recommendation that the 10 Complaint fails to state a claim for retaliation. The Report and Recommendation correctly 11 identified the elements of a retaliation claim, and correctly applied that standard to 12 conclude that the Complaint fails to state a retaliation claim. The Report and 13 Recommendation concluded that that the Complaint fails to state a claim for retaliation, 14 because: (1) the Complaint “does not plausibly allege that [Plaintiff] engaged in protected 15 conduct;” and (2) “the Court cannot plausibly infer that the issuance of the RVR did not 16 serve a legitimate correctional goal.” (ECF No. 17 at 6-7). Plaintiff does not object to the 17 conclusion of the Report and Recommendation that the Complaint “does not plausibly 18 allege that [Plaintiff] engaged in protected conduct.” (Id. at 6). Although an inmate’s verbal 19 discrimination complaints or informal prison grievances may constitute protected conduct 20 under the First Amendment, the allegations in the Complaint do not support an inference 21 that the RVR was issued to Plaintiff in retaliation for engaging in any protected conduct in 22 this case.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JIDEOFOR AJAELO, Case No.: 20-cv-2191-WQH-DEB
12 Plaintiff, ORDER 13 v. 14 J. CARRILLO, Correctional Officer, 15 Defendant. 16 HAYES, Judge: 17 The matter before the Court is the Report and Recommendation issued by the 18 Magistrate Judge (ECF No. 17), recommending that the Court grant the Motion to Dismiss 19 Portions of the Complaint filed by Defendant J. Carrillo. (ECF No. 13). 20 I. BACKGROUND 21 On November 9, 2020, Plaintiff Jideofor Ajaelo, a state prisoner proceeding pro se 22 and in forma pauperis, filed a Complaint against Defendant J. Carrillo pursuant to 42 23 U.S.C. § 1983. (ECF No. 1). The Complaint alleges that Plaintiff is a “non-affiliate,” 24 meaning Plaintiff does not “affiliate with any gangs.” (Id. at 3). The Complaint alleges that 25 on April 22, 2019, Defendant told Plaintiff he “was being housed with a new cellmate”— 26 a Crip gang member. (Id.). The Complaint alleges that Plaintiff told Defendant that he is a 27 non-affiliate and “incompatible” with the new cellmate. (Id.). The Complaint alleges that 28 1 Defendant responded, “You guys are both Black and [] nonaffiliate means you can cell up 2 with any gang member.” (Id.). The Complaint alleges that Defendant “engaged in 3 discrimination . . . when he initiated [the] housing move without any regard for [Plaintiff’s] 4 safety or security” and “automatically assumed that because [Plaintiff] was Black that [he] 5 would be compatible to house with another inmate who is black and who is a member of a 6 gang.” (Id.). 7 The Complaint alleges that on April 24, 2019, Plaintiff was moved to another 8 building and tier, where he housed with a non-affiliated inmate. The Complaint alleges that 9 on the same day, Plaintiff received a Rule Violation Report (“RVR”) for “not complying 10 with [Defendant’s] unlawful order.” (Id.). The Complaint alleges that a Senior Hearing 11 Officer found Plaintiff guilty of the RVR and imposed sanctions. The Complaint alleges 12 claims against Defendant for: (1) violation of the Equal Protection Clause of the Fourteenth 13 Amendment; (2) cruel and unusual punishment under the Eighth Amendment; and (3) 14 retaliation. 15 On April 20, 2021, Defendant filed a Motion to Dismiss the cruel and unusual 16 punishment claim and the retaliation claim pursuant to Rule 12(b)(6) of the Federal Rules 17 of Civil Procedure. (ECF No. 13). Plaintiff did not file any opposition to the Motion to 18 Dismiss. 19 On September 21, 2021, the Magistrate Judge issued a Report and Recommendation, 20 recommending that the Court grant Defendant’s Motion to Dismiss. (ECF No. 17). The 21 Magistrate Judge “review[ed] the sufficiency of Ajaelo’s claims on their merits,” even 22 though Plaintiff did not file any opposition to the Motion to Dismiss. (Id. at 4). The Report 23 and Recommendation concluded that the Complaint fails to state a claim for cruel and 24 unusual punishment, because the “Complaint does not plausibly allege that [Plaintiff] faced 25 a substantial risk of serious harm to which Defendant was deliberately indifferent.” (Id. at 26 5). The Report and Recommendation concluded that the Complaint fails to state a claim 27 for retaliation, because: (1) the Complaint “does not plausibly allege that [Plaintiff] 28 engaged in protected conduct;” and (2) “the Court cannot plausibly infer [from the 1 allegations in the Complaint] that the issuance of the RVR did not serve a legitimate 2 correctional goal.” (Id. at 6-7). The Report and Recommendation recommended that the 3 Court dismiss the cruel and unusual punishment claim and the retaliation claim with leave 4 to amend. 5 On October 15, 2021, Plaintiff filed Objections to the Report and Recommendation. 6 (ECF No. 18). Plaintiff objects to the conclusion of the Report and Recommendation that 7 the Complaint fails to state a claim for retaliation. Plaintiff contends that the RVR was 8 “unwarranted,” because Defendant “used the basis of [Plaintiff’s] race” to issue the RVR 9 and did not follow department policy. (Id. at 2-3). Plaintiff’s Objections include new 10 factual allegations and an attached exhibit to “explain the sequence of events and provide 11 clarity” as to why “[t]here was no legitimate correctional goal” with the issuance of the 12 RVR. (Id. at 1). 13 On October 19, 2021, Defendant filed a Reply. (ECF No. 19). Defendant contends 14 that the Report and Recommendation correctly concluded that the Complaint fails to state 15 a retaliation claim. Defendant contends that the “new allegations in Plaintiff’s objection 16 cannot supplement the operative complaint to state a retaliation claim.” (Id. at 2). 17 Defendant further contends that the Complaint does not allege facts sufficient to support 18 an inference that Plaintiff engaged in any protected conduct or that the RVR did not serve 19 a legitimate correctional goal. 20 II. LEGAL STANDARD 21 The duties of the district court in connection with a report and recommendation of a 22 magistrate judge are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 23 U.S.C. § 636(b). The district judge must “make a de novo determination of those portions 24 of the report . . . to which objection is made,” and “may accept, reject, or modify, in whole 25 or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 26 636(b)(1). The district court need not review de novo those portions of a report and 27 recommendation to which neither party objects. See Wang v. Masaitis, 416 F.3d 992, 1000 28 n.13 (9th Cir. 2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) 1 (en banc) (“Neither the Constitution nor the [Magistrates Act] requires a district judge to 2 review, de novo, findings and recommendations that the parties themselves accept as 3 correct.”). 4 III. DISCUSSION 5 Plaintiff does not object to the conclusion of the Report and Recommendation that 6 the Complaint fails to state a claim for cruel and unusual punishment. The Court concludes 7 that the Report and Recommendation correctly concluded that the Complaint fails to state 8 a claim for cruel and unusual punishment. 9 Plaintiff objects to the conclusion of the Report and Recommendation that the 10 Complaint fails to state a claim for retaliation. The Report and Recommendation correctly 11 identified the elements of a retaliation claim, and correctly applied that standard to 12 conclude that the Complaint fails to state a retaliation claim. The Report and 13 Recommendation concluded that that the Complaint fails to state a claim for retaliation, 14 because: (1) the Complaint “does not plausibly allege that [Plaintiff] engaged in protected 15 conduct;” and (2) “the Court cannot plausibly infer that the issuance of the RVR did not 16 serve a legitimate correctional goal.” (ECF No. 17 at 6-7). Plaintiff does not object to the 17 conclusion of the Report and Recommendation that the Complaint “does not plausibly 18 allege that [Plaintiff] engaged in protected conduct.” (Id. at 6). Although an inmate’s verbal 19 discrimination complaints or informal prison grievances may constitute protected conduct 20 under the First Amendment, the allegations in the Complaint do not support an inference 21 that the RVR was issued to Plaintiff in retaliation for engaging in any protected conduct in 22 this case. See Jones v. Williams, 791 F.3d 1023, 1035-36 (9th Cir. 2015); Brodheim v. Cry, 23 584 F.3d 1262, 1271 & n.4 (9th Cir. 2009). The Report and Recommendation correctly 24 concluded that the Complaint fails to plausibly allege that Plaintiff engaged in any 25 protected conduct. 26 Plaintiff objects to the conclusion of the Report and Recommendation that the 27 Complaint does not plausibly allege that the issuance of the RVR did not serve a legitimate 28 correctional goal. The Complaint alleges that Plaintiff received the RVR for not complying 1 || with Defendant’s order to move to a new cell with a new cellmate. The Complaint alleges 2 ||that the RVR was “unwarranted.” (ECF No. | at 3). The allegations in the Complaint do 3 ||not support an inference that the RVR did not serve any legitimate correctional goal. The 4 ||new allegations and documents submitted by Plaintiff with his Objections are not a 5 substitute for factual allegations in the Complaint. See Schneider v. Cal. Dep’t of Corr., 6 F.3d 1194, 1197 n.1 (9th Cir. 1998) (“In determining the propriety of a Rule 7 || 12(b)(6) dismissal, a court may not look beyond the complaint to a plaintiff's moving 8 ||papers ....”). The Report and Recommendation correctly concluded that the Complaint 9 || fails to plausibly allege that the RVR did not serve a legitimate correctional goal. The Court 10 || adopts the Report and Recommendation in full. 11 |] IV. CONCLUSION 12 IT IS HEREBY ORDERED that the Report and Recommendation (ECF No. 17) is 13 || adopted in full. 14 IT IS FURTHER ORDERED that Defendant’s Motion to Dismiss Portions of the 15 |}Complaint (ECF No. 13) is granted. Plaintiff's cruel and unusual punishment claim and 16 ||retaliation claim are dismissed with leave to amend. Plaintiff shall file any amended 17 ||}complaint within thirty (30) days of the date of this Order. 18 || Dated: January 3, 2022 BME: ie Z. A a 19 Hon. William Q. Hayes 0 United States District Court 21 22 23 24 25 26 27 28