Atherley v. Kernan

• Court: District Court, S.D. California
• Decided: February 8, 2021
• Docket: 3:19-cv-02355
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 EDLY A. ATHERLEY, II, Case No.: 3:19-cv-02355-LAB-DEB CDCR #AY-8220, 12 ORDER: Plaintiff, 13 vs. 1) SCREENING AND DIRECTING 14 U.S. MARSHAL TO EFFECT SCOTT KERNAN, et al., 15 SERVICE OF AMENDED Defendants. COMPLAINT UPON DEFENDANTS 16 HULTZ, JARAMILLO, STRONG, 17 PAMPLIN, CRESPO AND JOYNER PURSUANT TO 28 U.S.C. § 1915(d) 18 AND Fed. R. Civ. P. 4(c)(3) 19 [ECF No. 10]

20 AND 21 2) DISMISSING CLAIMS AGAINST 22 REMAINING DEFENDANTS 23 PURSUANT TO 28 U.S.C. § 1915(e)(2) AND § 1915A(b) 24 25 26 Currently before the Court and subject to initial screening is a First Amended 27 Complaint (“FAC”) (ECF No. 10) filed by Plaintiff Edly A. Atherley, II, a prisoner at 28 Mule Creek State Prison. Plaintiff has been granted leave to proceed in forma pauperis 1 (“IFP”), but upon initial review, the Court found his original Complaint, which named 2 more than two dozen correctional officials employed at Richard J. Donovan Correctional 3 Facility (“RJD”) and California State Prison-Los Angeles County (“LAC”), partly failed 4 to state a claim upon which § 1983 relief can be granted. See generally ECF No. 8. 5 Therefore, the Court granted Plaintiff the option to either proceed with the First and 6 Eighth Amendment claims he sufficiently alleged against RJD Defendants Hultz, Strong, 7 Jaramillo, and Pamplin only, or to amend his pleading altogether. Plaintiff elected to 8 amend, so the Court must screen his FAC afresh. See 28 U.S.C. § 1915(e)(2) and 9 § 1915A(b). 10 I. Sua Sponte Screening Requirement & Standard of Review 11 As Plaintiff knows, the Court must dismiss a prisoner’s IFP complaint, or any 12 portion of it, which is frivolous, malicious, fails to state a claim, or seeks damages from 13 defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) 14 (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 15 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to 16 ensure that the targets of frivolous or malicious suits need not bear the expense of 17 responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation 18 omitted). 19 “The standard for determining whether a plaintiff has failed to state a claim upon 20 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 21 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 22 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 23 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 24 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 25 12(b)(6)”). 26 Federal Rules of Civil Procedure 8(a) and 12(b)(6) require a complaint to “contain 27 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its 28 face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); 1 Wilhelm, 680 F.3d at 1121. Detailed factual allegations are not required, but “[t]hreadbare 2 recitals of the elements of a cause of action, supported by mere conclusory statements, do 3 not suffice.” Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible 4 claim for relief [is] . . . a context-specific task that requires the reviewing court to draw 5 on its judicial experience and common sense.” Id. The “mere possibility of misconduct” 6 or “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 7 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 8 (9th Cir. 2009). 9 And while the court “ha[s] an obligation where the petitioner is pro se, particularly 10 in civil rights cases, to construe the pleadings liberally and to afford the petitioner the 11 benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing 12 Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply essential 13 elements of claims that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of 14 Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 15 II. Plaintiff’s Factual Allegations 16 Plaintiff’s FAC, like his original Complaint, alleges First, Eighth, and Fourteenth 17 Amendment violations against 19 Defendants,1 all correctional officials at RJD and LAC, 18 with the exception of Scott Kernan, who is alleged to have been the Secretary of the 19 California Department of Corrections and Rehabilitation (“CDCR”) at the time Plaintiff’s 20 claims arose in July and August 2017. See FAC at 1‒6.2 21

22 1 The Court’s April 29, 2020 Order dismissed claims included in Plaintiff’s original Complaint arising at 23 LAC in late December 2017 through September 2019 and against Defendants Puentes, Mebane, Nkoocha, and Thompson as improperly joined and without leave to amend. See ECF No. 8 at 27‒28, 30. Plaintiff 24 was granted leave to amend his claims against LAC Warden Asuncion, but he does not name Asuncion 25 as party in his FAC and alleges no claims against him. See Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (claims dismissed with leave to amend no re-alleged in amended pleading may be 26 “considered waived.”).

27 2 Plaintiff requests that the 325 pages of exhibits he submitted in support of his original Complaint, see ECF No. 5, “be attached to” his FAC. See FAC at 24. While the Court’s Local Rules ordinarily require 28 1 On July 12, 2017, Plaintiff was incarcerated at RJD, and assigned to a Sensitive 2 Needs Yard and the “Mental Health Services Delivery System” while he was being 3 treated for bipolar disorder. Id. at 8. That morning, Plaintiff provided his ID card to 4 Officer Galindo3 in order to purchase items from the canteen. Id. Plaintiff claims to have 5 later complained to the canteen manager regarding “unfair and discriminatory” shopping 6 practices, which he confirmed with inmate Clark, one of the canteen clerks. Id. Plaintiff 7 then sat a table nearby in order to “tak[e] contemporaneous notes on the unfolding 8 events.” Id. at 8‒9. 9 Officer M. Hultz soon arrived and “incited the crowd of inmates by telling them 10 that the canteen would be closed” because of Plaintiff. Id. at 9. Hultz then retrieved 11 Plaintiff’s ID card from the canteen and “threw [it] out onto the yard and into the dirt.” 12 Id. When Plaintiff requested his name, Hultz “began to mock and gesture at [him].” Id. 13 Plaintiff “continued to document his behavior” as Hultz “glared at [him] in a menacing 14 fashion and spit sunflower seeds from his mouth.” Id. 15 When Plaintiff approached Defendant Marientes, Hultz’s supervisor, “[i]n an effort 16 to resolve his concerns, Marientes said: “I don’t care. Put it in a 602.” Id.4 Marientes then 17 proceeded to the canteen “and upon confirmation of Hultz’s threatening behavior, t[old] 18

19 obtained from the court, if desired, for the removal of any exhibit or exhibits attached to prior pleadings, 20 in order that the same may be attached to the amended pleading.” See S.D. Cal. CivLR 15.1(a). Thus, 21 while “it is not the Court’s duty,” when screening a complaint pursuant to 28 U.S.C. § 1915(e) and § 1915A, “to wade through exhibits to determine whether cognizable claims have been stated,” Woodrow 22 v. Cty. of Merced, No. 1:13-cv-01505-AWI, 2015 WL 164427, at *4 (E.D. Cal. Jan 13, 2015), the Court grants Plaintiff’s request and will consider specific exhibits identified in Plaintiff’s FAC as incorporated 23 by reference in support of his claims. See Hebbe, 627 F.3d at 342 (reaffirming liberal construction of pro se pleadings after Iqbal). 24

25 3 Galindo is not named as a Defendant and Plaintiff does not again refer to Galindo with respect to his claims for relief. 26 4 To resolve their issues through the administrative appeals process, inmates must submit a CDCR 602 27 Form, commonly referred to as an appeal, grievance, or “602,” which describes the issue and action requested. See Barrett v. Berry, No. 19-CV-01923-HSG, 2020 WL 5816224, at *3 (N.D. Cal. Sept. 30, 28 1 him: ‘Good job!’” Id. at 9‒10. Plaintiff claims Marientes also “congratulat[ed]” and 2 “encourage[ed]” Hultz by giving him a “high-five.” Id. at 10. 3 Plaintiff then spoke to Officer Yap,5 and asked him to sign three CDCR Form 22s.6 4 Plaintiff describes two of the Form 22s as “employee misconduct complaints addressed to 5 Correctional Captain E. Garza … regarding Hultz and Marientes respectively.” Yap 6 signed the Form 22 pertaining to Hultz, but allegedly refused to sign the one concerning 7 Marientes, telling Plaintiff: “They’ll put me in the Crow’s Nest[.]” Id. Plaintiff took this 8 to mean Yap “would suffer retaliation by being assigned an unfavorable detail.” Id. Yap 9 told Plaintiff “There are a few cool sergeants that’ll sign it for you.” Id. at 11. The Form 10 22 regarding Hultz was “submitted via institutional mail.” Id.; see also Pl.’s Ex. 4, ECF 11 No. 5 at 9. 12 Two days later, on July 14, 2017, Plaintiff proceeded to the dining hall for 13 breakfast carrying a 3”x5” index card, a black pen, and “the 22 pertaining to Marientes.” 14 See FAC at 11. He claims Officer Crespo “pointed [him] out to Hultz.” Id. at 11. Hultz 15 asked Plaintiff: “So, where’s my write-up? I’m waiting to sign it.” Id. at 11. Plaintiff 16 handed Hultz the Form 22, Hultz read it, became “angry,” and placed it in his back 17 pocket. Id.; see also Pl.’s Ex. 5, ECF No. 5 at 11. When Plaintiff requested a “receipt,” as 18 he claims Hultz was “obligated” to provide, Hultz refused and said: “I have 72 hours to 19 review this.” Id. Plaintiff claims when he asked for Crespo’s “assistance in obtaining the 20 22,” Crespo told him to “Go eat,” and that she’d “get it back for [Plaintiff].” Id. 21

22 23 5 Plaintiff does not name Yap in his list Defendants. See FAC at 1-6, Fed. R. Civ. P. 10(a) (“The title of the complaint must name all the parties.”). But in the body of his FAC, Plaintiff does include Yap in his 24 second Eighth Amendment cause of action. See FAC at 26-28. Therefore, the Court will consider Yap to 25 be an intended Defendant. See Butler v. Nat’l Cmty. Renaissance of California, 766 F.3d 1191, 1198 (9th Cir. 2014) (“[A] party may be properly in a case if the allegations in the body of the complaint make it 26 plain that the party is intended as a defendant.”) (citation omitted).

27 6 Plaintiff explains that at the time, a CDCR Form 22 was used to request an “Interview, Item, or Service,” see Cal. Code Regs., tit. 15 § 3086, but has since been “eliminated” as part of revisions made to the 28 1 When leaving the dining hall, Plaintiff claims he also saw Crespo reading the Form 2 22, but as he approached, “the form was given back to Hultz.” Id. at 12. Plaintiff again 3 requested that Hultz return the form, and indicated he would “ask someone else to sign 4 it.” Hultz still refused, so Plaintiff “prepared to leave the area and removed his pen and 5 index card from his pocket to document yet another adverse interaction with Hultz.” Id. 6 Hultz then “violently assault[ed] Plaintiff by hitting his hands to prevent him from 7 writing, [and] knocking the items to the ground.” Id. Plaintiff claims he “turned to Crespo 8 … seeking her help,” but Crespo failed to intervene. Id. As he bent down to pick up his 9 card and pen, Plaintiff contends Hultz “grabbed [him] by the back of his shirt with his left 10 hand,” and “grabbed [him] by his throat” with his right, “squeezed,” and “obstruct[ed] 11 [his] breathing.” Id. at 12-13. Plaintiff claims he “did not try to remove Hultz’s hand from 12 his throat,” because while he “fear[ed] for his life,” he “believed any attempt to defend 13 himself would provoke further violence.” Id. at 13. 14 Nevertheless, Plaintiff contends Hultz “became increasingly angry,” “violently ran 15 [him] into a concrete wall causing a 2″ laceration to [his] right elbow,” and “continued to 16 pin Plaintiff’s arm between the wall and [his] body.” Id. Plaintiff claims this was the first 17 time Hultz commanded that he “cuff up,” but Plaintiff was unable to comply because 18 Hultz “precluded him from placing his hands behind his back.” Id. 19 Plaintiff claims Hultz then “maliciously body-slammed [him] into the ground,” 20 “under the guise that [he] was disobeying an order.” Id. Officers Strong and Jaramillo 21 were summoned and “immediately” placed their weight on Plaintiff’s back and “beat him 22 with their knees and elbows.” Id. Plaintiff further contends these officers also applied 23 their body weight against his head and spine “in a maneuver known to be lethal,” and 24 claims Jaramillo “repeatedly slammed Plaintiff’s head into the ground.” Id. at 13-14. 25 Plaintiff “continued to be laid prone,” and repeatedly declared he was “not resisting,” but 26 Jaramillo claimed his body was “tense.” Id. at 14. Plaintiff claims he “continued to beg 27 observing officers for assistance,” and accused Hultz of “trying to cover up a complaint,” 28 but Hultz “silenced [him] by placing his gloved hand over Plaintiff’s mouth.” Id. 1 During his escort to the gym, Plaintiff claims Strong and Pamplin “deliberately and 2 maliciously tightened the cuffs around [his] wrists restricting the flow of blood.” Id. They 3 further “interlocked their arms through Plaintiff’s,” “applied pressure to his shoulder,” 4 and “forc[ed] his body to bend forward exacerbating the injury to his back.” Id. When 5 Plaintiff “expressed” that “their methods were not needed,” Strong “threaten[ed] to ‘drop’ 6 … and continue to beat him.” Id. 7 Once in the gym, Plaintiff claims he was “slammed into a glass window” and 8 “thrown” into a 3′ x 3′ cell, still handcuffed, and alleging his assault was due to his 9 having filed staff complaints. Id. at 14-15. While he continued to “plead with officers to 10 remove [his] restraints,” and “expressed that their behavior was ‘unethical’ and ‘unjust,’” 11 Strong mocked Plaintiff and said: “‘I can’t hear you Martin Luther King ‘cuz [sic] I’m 12 just a dumb white boy. What’s justice?” Id. at 15. 13 Forty-five minutes later, Plaintiff was examined by LVN Letuligasenca,7 who 14 asked Strong to remove Plaintiff’s restraints. Id. at 15-16. Letuligasenca administered his 15 anti-depressant medication, and recorded cuts and scratches on Plaintiff’s shoulder and 16 forearm and reports of pain in his lower back on a CDCR Form 7219 “Medical Report of 17 Injury or Unusual Occurrence.” Id. at 16; see also Pl.’s Ex. 6, ECF No. 5 at 13. 18 Plaintiff claims he remained in the gym “unsupervised” when Officer Crespo 19 approached and “apologized for her inability to help.” FAC at 16. Plaintiff contends 20 Crespo “offered a warning … to make him aware of the story that Hultz was going to 21 create to cover his actions.” Id. Plaintiff claims he also spoke to Sgt. Cottrell, the 22 Responding Supervisor, but Cottrell “ignored [his] accusations of … unnecessary force,” 23 and instead of “beginning the required course of investigation,” Cottrell “erroneously sent 24 Plaintiff to the Administrative Segregation Unit (“ASU”). Id. On the same day, Officer 25 Hultz filed a CDCR Rules Violation Report (“RVR”) Log No. 2992331, charging 26 27 28 1 Plaintiff with battery on a peace officer (Hultz) in violation of Cal. Code Regs., tit. 15 2 § 3005(d)(1). See Pl.’s Ex. 10, ECF No. 5 at 27.8 3 On or around July 16, 2017, while he was in ASU, Plaintiff claims an unidentified 4 sergeant responded to the “initial misconduct complaint” dated July 12, 2017, but did not 5 take his statement or conduct an interview. See FAC at 17. On or around July 18, 2017, 6 Plaintiff claims Cpt. Garza informed him of a pending Classification Committee Review 7 hearing.9 Id. Plaintiff claims he gave a statement that Garza declined to document and 8 requested a polygraph exam. Id. 9 On July 20, 2017, Plaintiff claims to have appeared before the Committee, and to 10 have informed an unidentified Captain of his willingness to undergo a polygraph 11 examination. The Captain “halted proceedings,” and ordered Acting Lt. Luna to “conduct 12 [a] video recording.” Id. at 18. Luna had Plaintiff placed in a holding cell and ordered an 13 unidentified Psychiatric Technician (“PT”) to “conduct an injury report.” Id. at 18.10 14

15 8 While the Court construes the allegations in Plaintiff’s FAC liberally during screening, see Neitzke v. 16 Williams, 490 U.S. 319, 330 n.9 (1989) (the liberal pleading standard applied to pro se litigants “applies 17 only to a plaintiff's factual allegations.”), it notes that in the “Circumstances of Violation” section of RVR Log No. 2992331, which Plaintiff has incorporated by reference as an exhibit, Hultz describes his July 14, 18 2017 encounter with Plaintiff quite differently. For example, Hultz characterizes Plaintiff as demanding and confrontational with respect to his Form 22, claims he cussed, refused orders to return to the chow 19 hall, impeded his duties, refused to cuff up, “spun his body,” struck Hultz with his elbow in the left bicep, and continued to resist even after Hultz pulled him to the ground by his shirt. The RVR’s account also 20 describes Plaintiff as noncompliant after officers Strong and Jaramillo were called in to assist, but they 21 were able to secure his legs, and then apply handcuffs. See Pl.’s Ex. 10, ECF No. 5 at 27. An RVR Supplemental Report, and Plaintiff’s Aug. 13, 2107 Disciplinary Hearing Results are included together as 22 Plaintiff’s Ex. 10. See ECF No. 5 at 26-41. Hultz is identified as the Reporting Employee, Sgt. K. Cottrell is identified as the Reviewing Supervisor, and Correctional Officer E. Garza is identified as the official 23 who classified Plaintiff’s offense level as serious. Id. at 27-28.

24 9 “Any serious disciplinary action requiring reconsideration of an inmate’s program, work group, or 25 housing assignment, shall be referred to the next reasonably scheduled classification committee for review.” Cal. Code Regs., tit. 15 § 3315(g); Armenta v. Paramo, No. 3:16-CV-02931-BTM-KSC, 2018 26 WL 4612662, at *3 n.6 (S.D. Cal. Sept. 25, 2018).

27 10 On July 21, 2017, Plaintiff was also interviewed during a “private therapy session” with a Licensed Clinical Social Worker named Mondell-Cook. See FAC at 19. Plaintiff contends Mondell-Cook noted he 28 1 During that exam, Plaintiff contends Luna “explicitly ordered” the PT to document his 2 cuff burns as “old scars.” Id. at 18. 3 Plaintiff was then taken to a room with Luna and Sgt. Fink. Plaintiff claims Luna 4 told him his injuries would be recorded, but threatened that if he “tr[ied] to say 5 any[thing]” that contradicted the injury report, he would “stop this shit.” Id. Specifically, 6 Plaintiff claims Luna “angrily attempted to coerce [him] into avoiding the term 7 ‘unnecessary force,’” and just “moments” later ordered Fink to stop recording. Plaintiff 8 claims Luna said: “You’re done. You said you got your injuries because Hultz threw your 9 ID in the dirt.” Id. 10 On July 24, 2017, Plaintiff claims to have “completed a formal request for an 11 official change of decision, action, or policy on a Form 602” and to have “personally” 12 handed it to Officer C. Avila, who was “acting as [his] Investigative Employee (IE)”11 Id. 13

14 15 placement” to ASU due to his mental health needs. Id. Plaintiff does not refer to any specific exhibit to corroborate Mondell-Cook’s evaluation, but a Mental Health Assessment Form CDCR 115-MH-A, 16 included as part of RVR Log No. 2992331, signed and dated by L. Levitt, Ph.D. on July 26, 2017, 17 identifies Mondell-Cook as Plaintiff’s “primary clinician in ASU.” See Pl.’s Ex. 8, ECF No. 5 at 22. “A Mental Health Assessment is a means to incorporate clinical input into the disciplinary process when 18 mental illness or developmental disability/cognitive or adaptive functioning deficits may have contributed to behavior resulting in a Rules Violation Report. Mental Health Assessments shall be considered by the 19 hearing officer or senior hearing officer during disciplinary proceedings when determining whether an inmate shall be disciplined and when determining the appropriate method of discipline.” Cal. Code Regs. 20 tit. 15, § 3317(a). Plaintiff also claims Dr. Levitt “provided an unsolicited statement to prison officials 21 concerning the veracity” of his excessive force and retaliation claims “in light of the evidence provided to her.” See FAC at 20. But the only statement offered by Levitt that makes reference to Plaintiff’s claims 22 against Officer Hultz was in answer to the clinical question whether a “mental illness and/or developmental disability/cognitive or adaptive functioning deficits contributed to the behavior that led to 23 the RVR.” See Pl.’s Ex. 8, ECF No. 5 at 21. Dr. Levitt answered “No” and did note that Plaintiff “adamantly denied the allegations against [him].” See Pl.’s Ex. 8, ECF No. 5 at 21. In fact, Dr. Levitt 24 expressly acknowledged that “[a]ssessing the truthfulness of [Plaintiff’s] report [wa]s outside the scope 25 of [her] evaluation,” and opined only that Plaintiff’s report did “not seem to be influenced by symptoms of a mental illness.” Id. Determining whether allegations are true, as opposed to the product of mental 26 illness, of course, are two entirely different things. In any event, neither Mondell-Cook nor Dr. Levitt are named as Defendants. 27 11 Plaintiff identifies Exhibit 7 as his July 24, 2017 Form 602, but that exhibit is not a CDCR 602 28 1 at 19. Plaintiff claims IEs “are assigned to investigate the facts when the matter requires 2 further investigation, [but] the housing status of the accused makes it difficult for him to 3 gather needed evidence.” Id. at 19-20. Plaintiff claims he specifically asked Avila to “call 4 Ms. Crespo,” but Avila said, “No, don’t do that.” Id. at 20.12 On July 31, 2017, Plaintiff 5 was transferred from RJD to LAC. Id. at 20-21.13 6 On August 13, 2017, Plaintiff appeared at a disciplinary hearing, conducted at 7 LAC, held in response to RVR Log No. 2992331, and charging him with a serious rules 8 violation for battery on a peace officer. Id. at 21; see also Pl.’s Ex. 10, ECF No. 5 at 33- 9 41. Plaintiff “gave a thorough statement regarding his defense,” but claims Lt. B. Legier, 10 the Senior Hearing Officer, “deliberately misrepresented his statement” “deliberately 11 ignored [his] Mental Health Assessment,” and found him guilty based on the “sheer 12 number of witnesses (Correctional Officers) against [him].” Id. at 21, 31; see also Ex. 10, 13 ECF No. 5 at 40. Plaintiff claims that during the RVR hearing, Legier refused to 14 acknowledge that “cover ups … happen in the year 2017.” FAC at 21. 15 On August 17, 2017, Plaintiff was interviewed via videotape while in the ASU at 16 LAC by Lt. B. Perez and Sgt. T. Smith “at the request of RJD Lt. L. Ortiz” in order to 17 enter “supplemental” evidence into the record. Id. at 22; see also Pl.’s Ex. 11, ECF No. 5 18 19 20 21 to is a single handwritten page he entitled “Employee Misconduct” which recounts his July 12, 2017 and 22 July 14, 2017 encounters with Officers Hultz, Crespo, Pamplin, and Strong. See ECF No. 5 at 15.

23 12 Avila’s RVR Supplemental Report dated August 8, 2017 confirms Avila conducted an IE Interview with Plaintiff in the ASU on July 24, 2017. See Pl.’s Ex. 10, ECF No. 5 at 31. Avila’s Report indicates 24 Plaintiff requested that Avila pose questions to Sgt. Fink and an inmate named Harvey; but also indicates 25 Plaintiff did not request any staff or inmate witnesses, reporting employee, or investigative employees appear as witnesses. Id. at 31-32, 37. 26 13 Plaintiff also claims another inmate named Scholl, also scheduled to transfer to another institution, 27 witnessed unidentified “prison staff” at RJD “deliberately place Plaintiff’s legal mail in Scholl’s property. See FAC ay 20-21. Plaintiff contends “this scheme was commenced in furtherance of the retaliation 28 1 at 43. Plaintiff received confirmation from Smith that the video was “entered into 2 evidence and submitted to Ortiz.” See FAC at 22-23. 3 As a result of the August 13, 2017 guilt determination, Plaintiff claims he “was 4 sentenced to six months in isolation.” Id. at 22. RVR Log No. 2992331’s Disposition 5 Findings, confirm that on September 7, 2017, LAC’s Chief Disciplinary Officer, Warden 6 T. Lewandowski referred Plaintiff to a Classification Committee for a SHU Term 7 Assessment, advised him of a 150-day non-restorable credit forfeiture, and assessed a 90- 8 day loss of Privilege Group C, canteen, phone, day room, and package privileges. See 9 Pl.’s Ex. 10, ECF No. 5 at 39-41.15 10 Between August and November 2017, Plaintiff submitted several letters to the 11 CDCR’s Office of Internal Affairs (“OIA”), Division of Adult Institutions, and Office of 12 Correctional Safety reporting Hultz and Marientes’s alleged misconduct, complaining he 13 had been falsely charged and retaliated against, and demanding a polygraph examination. 14 See FAC at 23; Pl.’s Ex. 12, ECF No. 5 at 45-49. His exhibits show these letters were 15 routed to RJD’s Warden, Defendant Daniel Paramo, who responded twice on October 23, 16 2017, and again on November 8, 2017. Id. at 46, 48-49. Both times, Paramo directed 17 Plaintiff to raise and properly pursue his claims via the CDCR 602 Inmate/Parolee 18 appeals process. Id. at 46, 48-49.16 Paramo further notified Plaintiff that all reported 19

20 21 14 While RJD Lt. L. Ortiz is named as a Defendant, neither Perez nor Smith are identified as parties. See FAC at 1-6. 22 15 T. Lewandowski is not named as a Defendant. 23 16 In his FAC, Plaintiff claims Paramo “specifically told him that his initial grievance was being 24 processed,” but a Correctional Counselor at High Desert State Prison “determined that Warden Paramo 25 was not being truthful.” See FAC at 23, 30. The Court has reviewed both of Paramo’s letters and confirms that his November 8, 2017 letter acknowledges a “record of [Plaintiff] submitting an Inmate Appeal, Log 26 No. X-17-05116, relevant to [the] incident which occurred on July 14, 2017,” and advises Plaintiff that the appeal “would be completed and [he would] receive a response.” See Pl.’s Ex. 12, ECF No. 5 at 48. 27 In fact, Plaintiff’s additional Exhibit 13 includes a copy of CDCR 602 Log No. X-17-05116, dated August 23, 2017, in which Plaintiff sought to “appeal [the] finding of guilt entered 13 August 2017.” Id. at 53. 28 1 incidents of force were subject to review by an Institutional Executive Review 2 Committee (“IERC”), and that the IERC had reviewed Officer Hultz’s actions and 3 “determined th[e] incident require[d] no further review.” Id. at 48. 4 Finally, Plaintiff claims former CDCR Secretary Scott Kernan “knew of and 5 facilitated … well-documented abuses of prisoners by prison staff at RJD,” but “ignored 6 these abuses.” Id. at 32. He further claims to have “personally informed” and to have 7 solicited Kernan’s assistance of after he saw Kernan interviewed on 60 Minutes by Oprah 8 Winfrey,” but Kernan “did not initiate the appropriate investigations despite the many 9 failures of his subordinates.” Id. 10 III. Claims for Relief 11 Plaintiff’s FAC essentially sets out the same set of facts and bases for relief as his 12 original pleading. Specifically, he contends Defendants Hultz, Jaramillo, Strong, and 13 Pamplin violated both his First and Eighth Amendment rights by using excessive force 14 against him on July 14, 2017 in retaliation for his having filed prison grievances. See 15 FAC at 24-26. The Court will refer to these claims as Counts 1 & 2.17 He next claims 16 Defendants Marientes, Yap, Crespo, and Joyner violated the Eighth Amendment by 17 failing to intervene during both his first encounter with Hultz on July 12, 2017, and 18 during the July 14, 2017 incident. Id. at 26-28. The Court will refer to these claims as 19

20 21 Appeal Decision denying “TLR Case No. 1715740” and “Local Log Nos. LAC-17-04275 and RJD-17- 05116” on June 15, 2018. See id. at 51-52. Therefore, it appears Plaintiff’s own exhibits belie his assertions 22 as to Paramo’s “truthfulness” with respect to the processing and review of the claims of wrongdoing he raised and in CDCR 602 Log No. X-17-05116. 23 17 Plaintiff’s FAC combines both his First and Eighth Amendment claims against Hultz, Jaramillo, Strong, 24 and Pamplin under the heading marked by Roman numeral “II,” see FAC at 24-26, labels his Eighth 25 Amendment claims against Yap, Crespo, and Joyner as “III,” id. at 26-28, conflates his First, Eighth, and Fourteenth Amendment claims against Garza, Fink, Luna, Avila, Olivarria, Self, Ortiz, Paramo, 26 Marientes, Cottrell, Legier, and Kernan under “IV,” id. at 28-31, and captions a separate Eighth Amendment claim against Kernan alone as “V.” Id. at 31-32. Because the underlying facts supporting all 27 these claims overlap but the constitutional bases for Plaintiff’s purported causes of action against each individual Defendant do not, the Court has re-categorized Plaintiff’s claims for purposes of clarity and to 28 1 Count 3. Next, Plaintiff claims Defendants Garza, Fink, Luna, Avila, Olivarria, Self, 2 Ortiz, and Paramo “falsely charg[ed] him with a disciplinary violation” in retaliation “for 3 filing appeals.” Id. at 28-31. The Court will refer to these claims as Count 4. He further 4 contends Defendants Marientes, Cottrell, Garza, Luna, Fink, Legier, Ortiz, Paramo and 5 Kernan acted with “deliberate indifference” to his suffering and ignored his claims of 6 retaliation in violation of both the Eighth and Fourteenth Amendments. Id. at 31-32. The 7 Court will refer to these claims as Count 5. 8 IV. Discussion and Analysis 9 For the reasons discussed below, the Court finds Plaintiff’s allegations insufficient 10 to state any plausible First, Eighth, or Fourteenth Amendment claim for relief with 11 respect to any Defendant except Hultz, Strong, Jaramillo, Pamplin, Crespo, and Joyner. 12 See 28 U.S.C. § 1915(e)(2)(B)(ii), § 1915A(b)(1); Watison, 668 F.3d at 1112; Wilhelm, 13 680 F.3d at 1121. 14 A. Individual Liability – Defendants Paramo & Kernan – all Counts 15 With respect to CDCR Secretary Kernan and Warden Paramo, the Court finds 16 Plaintiff’s FAC still fails to include sufficient factual content to establish personal 17 liability. See Iqbal, 556 U.S. at 676-77. Plaintiff claims Paramo “held the rank of Warden 18 and is responsible for the operation and the safety of inmates at RJD,” and Kernan “held 19 the rank of CDCR Secretary.” See FAC at 6. But “a defendant may not be held liable 20 under § 1983 merely because he had certain job responsibilities.” Hernandez v. Aranas, 21 No. 2:18-CV-00102-JAD-BNW, 2020 WL 569347, at *4 (D. Nev. Feb. 4, 2020) (citing 22 Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011)). Because “[v]icarious liability is 23 inapplicable to ... § 1983 suits, a plaintiff must plead that each Government-official 24 defendant, through [his] own individual actions, has violated the Constitution.” Iqbal, 25 556 U.S. at 676; see also Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013) 26 (supervisor may be held liable under § 1983 only if there is “a sufficient causal 27 connection between the supervisor’s wrongful conduct and the constitutional violation”) 28 (citations and internal quotation marks omitted); Fayle v. Stapley, 607 F.2d 858, 862 (9th 1 Cir. 1979) (when a named defendant holds a supervisorial position, the causal link 2 between the defendant and the claimed constitutional violation must be specifically 3 alleged); Victoria v. City of San Diego, 326 F. Supp. 3d 1003, 1013 (S.D. Cal. 2018) 4 (“Liability under § 1983 arises only upon a showing of personal participation by the 5 defendant.”); Jones v. Comm’ty Redev. Agency of City of Los Angeles, 733 F.2d 646, 649 6 (9th Cir. 1984) (even pro se plaintiff must “allege with at least some degree of 7 particularity overt acts which defendants engaged in” in order to state a claim). 8 Plaintiff alleges no individual acts or wrongful conduct taken by either Paramo or 9 Kernan to violate any of his constitutional rights. As to Warden Paramo, Plaintiff 10 continues to claim only that he failed to properly or accurately respond to letters 11 complaining of officer misconduct that Plaintiff originally addressed to the CDCR’s 12 Office of Internal Affairs. See FAC at 23, 46, 48-49. Plaintiff faults Paramo for 13 “participat[ing] in [a] coverup” by not being “truthful” in his response to these letters 14 after they were forwarded to him. Id. at 23, 30. But he alleges no further facts to plausibly 15 show how or the Warden’s acts or omissions caused any constitutional violation. See 16 Iqbal, 556 U.S. at 676; Crowley, 734 F.3d at 977. 17 Plaintiff’s claims against Secretary Kernan are even more tenuous: he claims, as he 18 did in his original Complaint, only to have seen Kernan interviewed by Oprah Winfrey, 19 and to have written to him afterward seeking his “help.” See FAC at 32. Plaintiff faults 20 Kernan for failing to “initiate the appropriate investigations despite the many failures of 21 his subordinates.” Id. But this type of conclusory and unadorned accusation fails to 22 plausibly support an individualized claim for relief against the Secretary. See Iqbal, 556 23 U.S. at 677; Starr, 652 F.3d at 1207. 24 For these reasons, the Court finds Plaintiff has failed to state any plausible claim 25 for relief against Defendants Paramo and Kernan pursuant to 28 U.S.C. 26 § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b); Lopez, 203 F.3d at 1126-27; Wilhelm, 680 27 F.3d at 1121. 28 / / / 1 B. Counts 1 & 2 – Hultz, Jaramillo, Strong, and Pamplin 2 Plaintiff’s retaliation and excessive force claims arising on July 12, 2017 and July 3 14, 2017 as re-alleged against Defendants Hultz, Jaramillo, Strong, and Pamplin in 4 Counts 1 and 2, however, see FAC at 11-15, 24-26, remain sufficient to state a plausible 5 claim for relief under both the First and Eighth Amendments. See Hudson v. McMillian, 6 503 U.S. 1, 6-7 (1992) (“[W]henever prison officials stand accused of using excessive 7 physical force in violation of the Cruel and Unusual Punishments Clause, the core 8 judicial inquiry is … whether force was applied in a good-faith effort to maintain or 9 restore discipline, or maliciously and sadistically to cause harm.”); Rhodes v. Robinson, 10 408 F.3d 559, 567-68 (9th Cir. 2005) (“Within the prison context, a viable claim of First 11 Amendment retaliation entails five basic elements: (1) An assertion that a state actor took 12 some adverse action against an inmate (2) because of (3) that prisoner’s protected 13 conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment 14 rights, and (5) the action did not reasonably advance a legitimate correctional goal.”). 15 C. Count 3 – Marientes, Yap, Crespo and Joyner 16 Plaintiff also contends Defendants Marientes, Yap, Crespo, and Joyner violated his 17 Eighth Amendment rights because they failed to “prevent the harm [he] suffered” and 18 “allow[ed] the excessive force” he claims Defendants Hultz, Jaramillo, Strong, and 19 Pamplin used against him on July 14, 2017. See FAC at 26-28. 20 Prison officials have a duty “to take reasonable measures to guarantee the safety of 21 inmates, which has been interpreted to include a duty to protect prisoners.” 22 Labatad v. Corrections Corp. of America, 714 F.3d 1155, 1160 (9th Cir. 2013) (citing 23 Farmer v. Brennan, 511 U.S. 825, 832–33 (1994); Hearns v. Terhune, 413 F.3d 1036, 24 1040 (9th Cir. 2005)). Thus, a prison official can violate a prisoner’s Eighth Amendment 25 rights by failing to intervene. Robins v. Meecham, 60 F.3d 1436, 1442 (9th Cir. 1995); 26 see also Rodriguez v. County of Los Angeles, 96 F. Supp. 3d 990, 1002 (C.D. Cal. 2014) 27 (noting “it is established law that officers have a duty to intercede when a fellow officer 28 violates the constitutional rights of a citizen”). 1 To state An Eighth Amendment claim based on an alleged failure to intervene, 2 however, Plaintiff must allege facts sufficient to show that Defendants Marientes, Yap, 3 Crepso, and Joyner each: (1) “was aware that [he] faced a specific risk of harm from the 4 other prison official’s use of excessive force”; (2) “had a reasonable opportunity to 5 intervene to stop it,” Solano v. Davis, No. CV 13-01164-ODW, 2014 WL 6473651, at *7 6 (C.D. Cal. Nov. 17, 2014) (citing Ting v. United States, 927 F.2d 1504, 1511-12 (9th Cir. 7 1991)); cf. Cunningham v. Gates, 229 F.3d 1271, 1289 (9th Cir. 2000) (“[O]fficers can be 8 held liable for failing to intercede only if they had an opportunity to intercede”); and (3) 9 in choosing not to intervene, acted with deliberate indifference to a serious risk to 10 Plaintiff’s health or safety. Labatad, 714 F.3d at 1160; see also Jacques v. Gonzalez, No. 11 CV 16-6862-GW (KS), 2018 WL 7916365, at *4 (C.D. Cal. Dec. 12, 2018), report and 12 recommendation adopted, No. CV 16-6862-GW (KS), 2019 WL 1432479 (C.D. Cal. 13 Mar. 29, 2019). 14 Plaintiff’s FAC fails to state an Eighth Amendment failure to protect claim against 15 either Defendant Yap or Marientes. As he alleged in his original Complaint, Plaintiff re- 16 alleges that Sgt. Marientes’s “high-five” with Officer Hultz on July 12, 2107 “illustrates 17 … his deliberate indifference” to Hultz’s “threatening” and “contemptuous behavior” 18 outside the canteen. See FAC at 28. Plaintiff also contends Yap was “legally obligated” to 19 sign a CDCR Form 22 Plaintiff presented to him complaining about Marientes’s actions 20 on July 12, 2017, and by refusing to do so left him “exposed” to a “risk of damage to 21 [his] future health.” See FAC at 27. However, Plaintiff provides no further factual 22 allegations to show that Marientes or Yap were aware that Hultz and Plaintiff’s canteen 23 encounter on July 12, 2017 posed a substantial or obvious risk of serious harm to him. 24 See Farmer, 511 U.S. at 837, 842; Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 25 1062, 1078 (9th Cir.2013) (“Plaintiffs must demonstrate that the risk was obvious or 26 provide other circumstantial or direct evidence that the prison officials were aware of the 27 substantial risk to the [prisoner’s] safety.”). Nor does Plaintiff allege Marientes or Yap 28 were physically present or had any reasonable “opportunity to intercede” when Hultz, 1 Jaramillo, Pamplin, and Strong are alleged to have personally used excessive force 2 against him two days later in the dining hall. See Cunningham, 229 F.3d at 1289. 3 However, unlike his original Complaint, Plaintiff’s FAC does provide further 4 factual support to plausibly allege an Eighth Amendment claim against Defendants 5 Crespo and Joyner. Specifically, Plaintiff claims both Crespo and Joyner were present 6 and that he “turned to” Crespo and Joyner and made “specific plea[s] … for help” when 7 Hultz first hit his hands and knocked his writing materials to the ground on July 14, 2017. 8 See FAC at 12, 27, 28. Plaintiff further contends Crespo “failed to stop the continued 9 beating and helped form a semi-circle around the officers, as to block the view of inmate 10 witnesses,” and Joyner “stood and watched Hultz cover [his] mouth as [he] lay prone.” 11 Id. at 27-28. Liberally construed, the Court now finds Plaintiff’s Eighth Amendment 12 allegations against Correctional Officer Crespo and Joyner sufficient to state a plausible 13 claim for relief under the Eighth Amendment. See Robins, 60 F.3d at 1442; Olguin v. 14 Gastelo, No. 2:20-CV-06048-PAM-AA, 2020 WL 6203572, at *1 (C.D. Cal. Oct. 22, 15 2020) (finding allegations that one correctional officer “did nothing to stop” his fellow 16 officer pull Plaintiff’s arms up, twist his hands, and slam his head into a wall sufficient to 17 survive the initial screening required by 28 U.S.C. § 1915(e)(2) and § 1915A). 18 D. Counts 4 & 5 19 In Counts 4 and 5 Plaintiff claims Defendants Garza, Fink, Luna, Avila, Olivarria, 20 Self, Ortiz, and Paramo “falsely charg[ed] him with a disciplinary violation” in retaliation 21 “for filing appeals.” Id. at 28-31. He further contends Defendants Marientes, Cottrell, 22 Garza, Luna, Fink, Legier, Ortiz, Paramo and Kernan acted with “deliberate indifference” 23 to his suffering by ignoring his claims of retaliation in violation of both the Eighth and 24 Fourteenth Amendments. Id. at 31-32. But regardless of how Plaintiff has re-categorized 25 these allegations in response to the Court’s initial screening Order, they still fail to state a 26 plausible claim for relief under the First, Eighth, or Fourteenth Amendments, and must be 27 again dismissed sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b). 28 / / / 1 1. Garza, Fink, Luna, Avila, Olivarria, Self & Ortiz – Retaliation 2 Plaintiff first claims all Defendants Garza, Fink, Luna, Avila, Olivarria, Self and 3 Ortiz filed “false” disciplinary charges against him in RVR Log No. 2992331, which 4 accused of committing battery on a peace officer (Hultz) in order to retaliate against him 5 for “filing grievances.” See FAC at 28. But none of these officials issued the RVR— 6 Hultz did. See Pl.’s Ex. 10, ECF No. 5 at 27. Instead, Defendants Garza, Fink, Luna, 7 Avila, Olivarria, Self and Ortiz are alleged as a group to have either participated in the 8 investigation, classification, or disciplinary proceedings which ultimately culminated in 9 his conviction on August 13, 2017, or to have insufficiently responded to his CDCR 602 10 Form 22s, and/or his CDCR 602 Inmate Appeal Log No. RJD 17-05116 / LAC Log No. 11 17-04275. See, e.g., FAC at 10, 16-23; Pl.’s Exs. 4, 5, 10, 13. 12 As noted above, a viable claim of First Amendment retaliation requires Plaintiff to 13 allege facts sufficient to show that each of these Defendants: (1) took some adverse 14 action against him (2) because of (3) his protected conduct, and that such action (4) 15 chilled the exercise of his First Amendment rights, and (5) did not reasonably advance a 16 legitimate correctional goal. Rhodes, 408 F.3d at 567-68. As pleaded, Plaintiff’s FAC 17 does allege facts sufficient to show that he engaged in protected conduct on July 12, 2017 18 when he attempted to submit several CDCR Form 22s complaining about Hultz’s and 19 Marientes’s “employee misconduct” related to the canteen incident. See FAC at 10-11; 20 Watison, 668 F.3d at 1114 (“The filing of an inmate grievance is protected conduct.”); 21 O’Brien v. Garcia, No. 3:19-CV-01113-JAH-MDD, 2019 WL 4015647, at *8 (S.D. Cal. 22 Aug. 26, 2019) (finding prisoner’s claims of having submitted a “series” of CDCR Form 23 22 requests and CDCR 602 appeals sufficient to show he was engaging in protected 24 conduct). 25 26 27 18 Plaintiff includes Warden Paramo in this claim, but the Court has already found his allegations against Paramo insufficient to plausibly allege personal liability with respect to any of his purported causes of 28 1 Plaintiff further alleges facts sufficient to plausibly show Hultz took “adverse 2 action” against him by issuing RVR Log No. 2992331 on July 14, 2017, charging him 3 with battery on a peace officer, and resulting in Sgt. Cottrell’s decision to place him in 4 ASU pending the investigation and disciplinary hearing related to those charges. See 5 FAC at 16; Pl.’s Ex. 10, ECF No. 5 at 27-28; Watison, 668 F.3d at 1115 (placement in 6 administrative segregation constitutes adverse action). 7 However, Plaintiff does not allege facts to plausibly show Defendants Garza, Fink, 8 Luna, Avila, Olivarria, Self, or Ortiz took any adverse action against him with respect to 9 his disciplinary proceedings or his CDCR 602 appeals regarding those proceedings 10 because he engaged in any protected conduct. See Pratt v. Rowland, 65 F.3d 802, 809 11 (9th Cir. 1995) (plaintiff asserting retaliation claim bears the burden of pleading and 12 proving retaliatory motive); Brodheim v. Cry, 584 F.3d 1269, 1271 (9th Cir. 2009) 13 (causation element of a First Amendment retaliation claim requires prisoner to allege his 14 protected conduct was the substantial or motivating factor underlying the defendant’s 15 adverse action). Based on the allegations in his FAC, Plaintiff has not plausibly shown 16 that the submission of his CDCR Form 22s, or the filing of any subsequent CDCR 602 17 appeal was the “but-for” cause of any alleged action taken by Defendants Garza, Fink, 18 Luna, Avila, Olivarria, Self or Ortiz. Id.; see also Soranno’s Gasco, Inc. v. Morgan, 874 19 F.2d 1310, 1314 (9th Cir. 1989); Capp v. Cty. of San Diego, 940 F.3d 1046, 1053 (9th 20 Cir. 2019) (“[P]laintiff must show that the defendant’s retaliatory animus was ‘a “but- 21 for” cause, meaning that the adverse action against the plaintiff would not have been 22 taken absent the retaliatory motive.’”) (citation omitted). “Retaliation is not established 23 simply by showing adverse activity by a defendant after protected speech; rather, Plaintiff 24 must allege sufficient facts to plausibly suggest a nexus between the two.” Rojo v. 25 Paramo, No. 13cv2237, 2014 WL 2586904, at *5 (S.D. Cal. June 10, 2014) (citing 26 Huskey v. City of San Jose, 204 F.3d 893, 899 (9th Cir. 2000) (retaliation claims cannot 27 rest on the logical fallacy of post hoc, ergo propter hoc, i.e., “after this, therefore because 28 of this”)). Plaintiff’s FAC fails to allege any such nexus, and “mere speculation that 1 defendants acted out of retaliation is not sufficient.” Wood v. Yordy, 753 F.3d 899, 905 2 (9th Cir. 2014); see also Morman v. Dyer, No. 16-CV-01523-SI, 2018 WL 2412183, at 3 *7 (N.D. Cal. May 29, 2018). 4 Instead, Plaintiff’s purported retaliation claims against Defendants Garza, Fink, 5 Luna, Avila, Olivarria, Self, and Ortiz are essentially procedural, and as such, they appear 6 to be an attempt to re-package his original Fourteenth Amendment due process claims 7 related to the disciplinary investigations, proceedings, hearing, and appeals that followed 8 the issuance of RVR Log No. 2992331, as a separate cause of action for retaliation under 9 the First Amendment. For example, Plaintiff only contends broadly that Garza “refused to 10 address [his] staff complaints” and falsely responded to a CDCR Form 22 addressed to 11 him, see FAC at 29; Luna and Fink “participated in the cover up, intimidation, [and] 12 machinations of other prison officials” during his RVR proceedings, id. at 29-30; Avila 13 improperly handled or failed to respond to “several” CDCR Form 22s, id. at 30; Olivarria 14 and Self “erroneous[ly] deni[ed]” his appeals and performed their jobs as inmate appeals 15 coordinators “sloppily,” id., and Ortiz “failed to act” in response to unspecified letters 16 Plaintiff wrote “concerning the unavailability” and “confusing nature” of the 17 administrative process, and “illegally dispositioned” the appeal of his ASU confinement. 18 Id. 19 But these purported wrongs, previously alleged as Count 3 in Plaintiff’s original 20 Complaint, were found insufficient to state a plausible claim for relief under the Due 21 Process Clause of the Fourteenth Amendment. See ECF No. 8 at 16-24. Plaintiff does not 22 now include any non-conclusory factual allegations which plausibly show these 23 Defendants instead violated the First Amendment by playing any role in the initial 24 decision to either charge him with battery on a peace officer, retain him in administrative 25 segregation while those charges were investigated, or by otherwise participating in a 26 disciplinary process or grievance procedure that ultimately determined or affirmed his 27 conviction for battery on a peace officer. See Pratt, 65 F.3d at 809. 28 / / / 1 For these reasons, Plaintiff’s First Amendment retaliation claims as alleged against 2 Defendants Garza, Fink, Luna, Avila, Olivarria, Self and Ortiz must be dismissed sua 3 sponte pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). 4 2. Marientes, Cottrell, Garza, Luna, Fink, Legier, & Ortiz19 – Eighth & 5 Fourteenth Amendments 6 Finally, Plaintiff alleges Defendants Marientes, Cottrell, Garza, Luna, Fink, Legier, 7 and Ortiz acted with “deliberate indifference to [his] suffering” when they ignored his 8 repeated claims of retaliation, “unreasonably allowed him to be charged with a 9 disciplinary action,” and disregarded his mental health needs by placing him in ASU 10 instead of “allow[ing] [him] to return to the yard.” See FAC at 31. 11 First, and while it is not altogether clear, the Court liberally construes Plaintiff’s 12 claim of “deliberate indifference” as an attempt to allege an Eighth Amendment claim 13 with respect to his disciplinary conviction and sentence. See Hebbe, 627 F.3d at 342 & 14 n.7. However, “[t]hreadbare recital[ ] of the elements of a[n] [Eighth Amendment] cause 15 of action, supported by merely conclusory statements, do not suffice” to allege a 16 plausible entitlement to relief. Iqbal, 556 U.S. at 678; see also Ivy v. Wingo, No. 3:20- 17 CV-01345-CAB-AHG, 2020 WL 5709278, at *8 (S.D. Cal. Sept. 24, 2020) (sua sponte 18 dismissing prisoner’s conclusory challenge to disciplinary conviction as “cruel and 19 unusual punishment” pursuant to 28 U.S.C.C. § 1915(e)(2) & 1915A); see also Cole v. 20 Sisto, 2010 WL 2303257, at *2 (E.D. Cal. June 7, 2010) (“To the extent that [plaintiff] 21 argues that the particular forms of discipline imposed on him ... (the forfeiture of time 22 credits, the adding of points to his classification score, or the temporary loss of certain 23 yard and canteen privileges) was so harsh as to be cruel and unusual, such a claim is 24 plainly frivolous.”); Galindo v. Cockrell, 2001 WL 1057982, at *4 (N.D. Tex., Aug. 31, 25 26 27 19 Plaintiff includes Secretary Kernan in this claim, but the Court has already found his allegations against Kernan insufficient to plausibly allege personal liability with respect to any of his purported causes of 28 1 2001) (“Galindo’s claim that the revocation of his earlier earned credits constitutes cruel 2 and unusual punishment in violation of the Eighth Amendment is frivolous and requires 3 no discussion.”). 4 Second, while Plaintiff also invokes the Fourteenth Amendment’s Due Process 5 clause with respect to his disciplinary hearing and claims Defendants Marientes, Cottrell, 6 Garza, Luna, Fink, Legier, and Ortiz’s actions with respect to his conviction for battery 7 on a peace officer via RVR Log No. 2992331 imposed “atypical and significant 8 hardships” upon him, see FAC at 28 (citing Sandin v. Conner, 515 U.S. 472, 484 (1995)), 9 he continues to allege no facts to plausibly support this legal conclusion. See Iqbal, 556 10 U.S. at 678. As the Court noted in its April 29, 2020 Order, the deprivations Plaintiff 11 continues to allege to have suffered as a result of his disciplinary conviction, i.e., lost 12 custody credit, a referral to Classification Committee, and the loss of 90 days of canteen, 13 phone, dayroom, and package privileges, see Pl.’s Ex. 10, ECF No. 5 at 39‒41, remain 14 insufficient to state plausible entitlement to relief under the Fourteenth Amendment. See 15 Iqbal, 556 U.S. at 678. 16 For example, as the Court noted in its April 29, 2020 Order, classification at a 17 higher custody level does not by itself place an “atypical or significant hardship” on an 18 inmate sufficient to give rise to a protected liberty interest. See Sandin, 515 U.S. at 486 19 (placing an inmate in administrative segregation for thirty days “did not present the type 20 of atypical, significant deprivation in which a state might conceivably create a liberty 21 interest.”); Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007) (finding no “atypical and 22 significant deprivation” where prisoner failed to allege conditions at level IV prison 23 differed significantly from those at a level III prison); Moody v. Daggett, 429 U.S. 78, 88 24 n.9 (1976) (inmates do not have a liberty interest in their classification status); Rizzo v. 25 Dawson, 778 F.2d 527 (9th Cir. 1985) (prison authorities may change a prisoner’s “place 26 of confinement even though the degree of confinement may be different and prison life 27 may be more disagreeable in one institution than in another” without violating due 28 process). 1 Nor do the other lost privileges Plaintiff cites as a result of his disciplinary 2 conviction, e.g., a 90-day placement in “Privilege Group C,” and limitations on his access 3 to the canteen, phone, day room, or package privilege, see Pl.’s Ex. 10, ECF No. 5 at 39‒ 4 41, constitute “atypical and significant” hardships. See Sandin, 515 U.S. at 484; Cal. 5 Code Regs., tit. 15 § 3044(f)(2) (describing “Privilege Group C” “privileges and non- 6 privileges”); see also Sanchez v. Miller, 2016 WL 536890, at *5 (S.D. Cal. 2016) (“C- 7 status deprivations were limited in duration and type, and these limited deprivations do 8 not constitute a hardship that is atypical and significant ‘in relation to the ordinary 9 incidents of prison life.’”), report and recommendation adopted, 2016 WL 524438 (S.D. 10 Cal. 2016); Randle v. Melendrez, 2017 WL 1197864, at *4 (C.D. Cal. 2017) (finding 11 “four months in administrative segregation as a result of the false RVR,” during which 12 plaintiff was deprived of contact visits, “packages, canteen, unrestricted yard, phone calls 13 and personal property” insufficient to implicate a protected liberty interest under Sandin), 14 report and recommendation adopted, 2017 WL 1199719 (C.D. Cal. 2017); Hernandez v. 15 Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987) (“[A] prisoner has no constitutional right 16 to a particular classification status”); Wyatt v. Swearingen, 2010 WL 135322, at *8-9 17 (N.D. Cal. 2010) (no liberty interest in prisoner’s year-long C-status placement); 18 Washington v. Cal. Dep’t of Corrs. & Rehab., 2010 WL 729935, at *1 (E.D. Cal. 2010) 19 (no liberty interest in delayed release from C-status); see also Steffey v. Orman, 461 F.3d 20 1218 (10th Cir. 2006) (restriction on inmates’ ability to receive money from outside 21 sources was not an “atypical or significant hardship” under Sandin). 22 Finally, while Plaintiff “begs the Court to withhold judgment on his Due Process 23 claims as he petitions the State court for habeas corpus … in light of the Heck rule,” see 24 FAC at 32, such a stay is both unnecessary and improper—for he fails to sufficiently 25 allege a plausible due process claim for relief in the first place.20 See Iqbal, 556 U.S. at 26

27 20 Under Heck v. Humphrey, 512 U.S. 477 (1994), if judgment in Plaintiff’s favor would necessarily imply 28 1 678; see also Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995) (court 2 should dismiss claims barred by Heck without prejudice “so that [the plaintiff] may 3 reassert his claims if he ever succeeds in invalidating his conviction.”). 4 E. Summary 5 For all the reasons discussed, the Court dismisses all claims alleged in Plaintiff’s 6 FAC against Defendants Kernan, Paramo, Asuncion, Marientes, Cottrell, Fink, Luna, 7 Garza, Avila, Olivarria, Self, Legier, Ortiz, and Yap sua sponte based on Plaintiff’s 8 repeated failures to state a claim against them pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) 9 and § 1915A(b)(1) and denies further leave to amend. See Hartmann v. California Dep’t 10 of Corr. & Rehab., 707 F.3d 1114, 1130 (9th Cir. 2013) (“A district court may deny leave 11 to amend when amendment would be futile.”). 12 Because the Court has found Plaintiff’s First Amendment retaliation and Eighth 13 Amendment excessive force allegations against Defendants Hultz, Jaramillo, Strong, 14 Pamplin, Crespo, and Joyner sufficient to survive the “low threshold” set for sua sponte 15 screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), however, see Wilhelm, 680 16 F.3d at 1123; Iqbal, 556 U.S. at 679, the Court will direct the U.S. Marshal to effect 17 service of summons with respect to Plaintiff’s FAC upon these Defendants only.21 See 28 18

19 that the conviction or sentence has already been invalidated. Heck, 512 U.S. at 486-87. Heck’s favorable- 20 termination rule applies to prison disciplinary proceedings involving the loss of good-time credits. See 21 Edwards v. Balisok, 520 U.S. 641, 645-46 (1997). The exhibits Plaintiff has requested this Court incorporate by reference still plainly show he was assessed a 150-day non-restorable credit forfeiture as a 22 result of his conviction. See Pl.’s Ex. 10, ECF No. 5 at 39-41. Thus, Plaintiff’s Fourteenth Amendment remain subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A for this additional reason. 23 See Smith v. City of Hemet, 394 F.3d 689, 695 (9th Cir. 2005) (“[I]f a … conviction arising out of the same facts stands and is fundamentally inconsistent with the unlawful behavior for which section 1983 24 damages are sought, the 1983 action must be dismissed.”); Heck, 512 U.S. at 487 (“A claim for damages 25 bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.”); see also Guerrero v. So, No. 3:20-CV-01117-GPC-MSB, 2020 WL 6449194, at *9 (S.D. 26 Cal. Nov. 3, 2020).

27 21 Plaintiff is cautioned, however, that “the sua sponte screening and dismissal procedure is cumulative of, and not a substitute for, any subsequent Rule 12(b)(6) motion that [a defendant] may choose to bring.” 28 1 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all process, and perform 2 all duties in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) (“[T]he court may order that service be 3 made by a United States marshal or deputy marshal ... if the plaintiff is authorized to 4 proceed in forma pauperis under 28 U.S.C. § 1915.”). 5 V. Conclusion and Orders 6 Accordingly, the Court: 7 1. DISMISSES all claims alleged in Plaintiff’s Amended Complaint against 8 Defendants Kernan, Paramo, Asuncion, Marientes, Cottrell, Fink, Luna, Garza, Avila, 9 Olivarria, Self, Legier, Ortiz, and Yap sua sponte for failure to state a claim and 10 DIRECTS the Clerk of the Court to terminate these Defendants as parties to this action 11 pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). 12 2. DIRECTS the Clerk to issue a summons as to Plaintiff’s Amended 13 Complaint (ECF No. 10) upon Defendants Hultz, Jaramillo, Strong, Pamplin, Crespo, and 14 Joyner and forward it to Plaintiff along with a blank U.S. Marshal Form 285s for these 15 Defendants only. In addition, the Clerk will provide Plaintiff with a certified copy of this 16 Order, a certified copy of the Court’s April 29, 2020 Order Granting IFP (ECF No. 8), his 17 Amended Complaint (ECF No. 10), and a summons so that he may serve Defendants 18 Hultz, Jaramillo, Strong, Pamplin, Crespo, and Joyner. Upon receipt of these materials, 19 which comprise the “IFP Package,” Plaintiff must complete the Form 285s provided by 20 the Clerk as completely and accurately as possible, include an address where Defendants 21 Hultz, Jaramillo, Strong, Pamplin, Crespo, and Joyner may each be served, see S.D. Cal. 22 CivLR 4.1.c, and timely return them to the United States Marshal according to the 23 instructions the Clerk provides in the letter included in his IFP package. 24 3. ORDERS the U.S. Marshal to serve a copy of the Amended Complaint and 25 summons upon Defendants Hultz, Jaramillo, Strong, Pamplin, Crespo, and Joyner upon 26 receipt and as directed by Plaintiff on the completed USM Form 285s, and to promptly 27 file proof of service, or proof of any attempt at service unable to be executed, with the 28 Clerk of Court. See S.D. Cal. CivLR 5.2. All costs of that service will be advanced by the 1 || United States. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). 2 4. ORDERS Defendants Hultz, Jaramillo, Strong, Pamplin, Crespo, and 3 || Joyner once served, to reply to Plaintiff's Amended Complaint within the time provided 4 ||by the applicable provisions of Federal Rule of Civil Procedure 12(a). See 42 U.S.C. 5 || § 1997e(g)(2) (while a defendant may occasionally be permitted to “waive the right to 6 reply to any action brought by a prisoner confined in any jail, prison, or other correctional 7 ||facility under section 1983,” once the Court has conducted its sua sponte screening 8 || pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a preliminary 9 || determination based on the face on the pleading alone that Plaintiff has a “reasonable 10 || opportunity to prevail on the merits,” defendant is required to respond). 11 5. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 12 ||serve upon Defendants Hultz, Jaramillo, Strong, Pamplin, Crespo, and Joyner, or, if 13 || appearance has been entered by counsel, upon Defendants’ counsel, a copy of every 14 || further pleading, motion, or other document submitted for the Court’s consideration 15 || pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every original document he 16 seeks to file with the Clerk of the Court, a certificate stating the manner in which a true 17 || and correct copy of that document has been was served on the Defendants or their 18 counsel, and the date of that service. See S.D. Cal. CivLR 5.2. Any document received by 19 || the Court which has not been properly filed with the Clerk, or which fails to include a 20 || Certificate of Service upon the Defendants, may be disregarded. 21 IT IS SO ORDERED. 22 23 || Dated: February 8, 2021 / 2 □ 4 ‘by, i Vy 24 Hon. Lafry Alan Burns 25 United States District Judge 26 27 28 26