1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 Case No. 23-cv-06095-JSC DANIEL E. BESS, 8 ORDER DENYING DEFENDANTS' Plaintiff, MOTION TO DISMISS 9 Re: Dkt. Nos. 14 v. 10 J. BARROSO, et al., 11 Defendants.
12 INTRODUCTION 13 Plaintiff, a California prisoner proceeding without an attorney, filed this 42 U.S.C. § 1983 14 action against three officials at the Correctional Training Facility (“CTF”) in Soledad, California – 15 Lieutenant J. Barroso, Lieutenant J. Martinez, and R. Oviedo (“Defendants”). Following review 16 of the complaint under 28 U.S.C. § 1915A, five claims were dismissed and two remain: violations 17 of the First Amendment (retaliation) and the Bane Act. (ECF No. 7.) Defendants moved to 18 dismiss the First Amendment retaliation claim against Defendant Oviedo and the Bane Act claim 19 against all three Defendants under Rule 12(b)(6) of the Federal Rules of Civil Procedure for 20 failure to state a claim upon which relief may be granted. (ECF No. 14.) Plaintiff filed an 21 opposition, and Defendants filed a reply. (ECF Nos. 15, 16). 22 For the reasons discussed below, Defendants’ motion to dismiss is DENIED. 23 BACKGROUND 24 In 2022, Plaintiff filed a lawsuit against a CTF employee, Sergeant J. Peffley, who is not a 25 defendant in the instant case. See Bess v. Peffley, No. 22-cv-00341-JSC (PR). In this action, 26 Plaintiff alleges Defendants acted in retaliation for the lawsuit against Sergeant Peffley and for his 27 administrative grievances. In particular, he alleges Defendant Barroso prepared a Threat 1 Assessment on August 2, 2023, to falsely identify Plaintiff as a member of the “Sureno” gang. 2 (ECF No. 1 at 9.) Plaintiff alleges Defendant Barroso created this false Threat Assessment on the 3 same day the Court denied in part Sergeant Peffley’s motion for summary judgment in his prior 4 lawsuit. (Id.; see Bess v. Peffley, No. 22-cv-00341-JSC (PR) (ECF No. 30.)) He further alleges 5 Defendant Martinez conducted a destructive cell search on August 19, 2023, during which he 6 “poured coffee or dark liquid (possibly urine) on [his] legal papers” including his “Staff 7 Complaint and pending lawsuit (Bess v Peffley).” (ECF No. 1 at 10.) Lastly, Plaintiff alleges on 8 September 7, 2023, Defendant Oviedo “handed [Plaintiff] a copy of the false Threat Assessment, a 9 false STG Affiliation Sheet, and a Confidential Information Listing” and “indicated he’s signing 10 off on the falsified information.” (ECF No. 1 at 10) (internal citations omitted.) At this meeting, 11 Plaintiff alleges he informed Defendant Oviedo “he’s required to report misconduct - a ministerial 12 duty” and that instead of doing so, Defendant Oviedo responded, “You still might settle your case. 13 I just don’t want anything to do with it.” (Id. at 10:10-12.) 14 DISCUSSION 15 Defendants argue for dismissal under Rule 12(b)(6) of the First Amendment retaliation 16 claim against Defendant Oviedo and the Bane Act claim against all three Defendants.1 17 I. Standard of Review 18 On a 12(b)(6) motion to dismiss for failure to state a claim, “the issue is not whether 19 plaintiff will ultimately prevail, but whether he is entitled to offer evidence to support his claim.” 20 Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). Federal Rule of Civil Procedure 21 8(a)(2) requires only “a short and plain statement of the claim showing the pleader is entitled to 22 relief.” “Specific facts are not necessary; the statement need only give the defendant fair notice of 23 what the . . . . claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 24 (2007) (citations and internal quotations omitted). While a complaint “does not need detailed 25 factual allegations, . . . a plaintiff’s obligation to provide the grounds of his entitle[ment] to relief 26 requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of 27 1 action will not do. . . . Factual allegations must be enough to raise a right to relief above the 2 speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 550 (2007) (citations omitted). 3 A motion to dismiss should be granted if the complaint does not proffer “enough facts to state a 4 claim for relief that is plausible on its face.” Id. at 570. 5 Allegations of fact in the complaint must be taken as true and construed in the light most 6 favorable to the non-moving party. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th 7 Cir. 2001). The court need not, however, “accept as true allegations that are merely conclusory, 8 unwarranted deductions of fact, or unreasonable inferences.” Id. 9 A pleading filed by a party unrepresented by counsel must be liberally construed, and 10 “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted 11 by lawyers.” Estelle v. Gamble, 429 U.S. 97, 106 (1976) (internal quotations and citations 12 omitted). 13 II. Analysis 14 A. Retaliation Claim Against Defendant Oviedo 15 There are five requisite elements for a First amendment retaliation claim in the prison 16 context: (1) An assertion that a state actor took some adverse action against an 17 inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment 18 rights, and (5) the action did not reasonably advance a legitimate correctional goal. 19 Rhodes v Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). Without citing to any authority, 20 Defendants argue Plaintiff failed to properly plead the first element against Defendant Oviedo 21 because merely “signing off” on the Threat Assessment is not an adverse action. (ECF No. 14 at 22 4.) The Court disagrees. 23 An adverse action for the purposes of a First Amendment retaliation claim in the prison 24 context need not entail an “explicit, specific threat of discipline.” Brodheim v Cry, 584 F.3d 1262, 25 1270 (9th Cir. 2009). Instead, an adverse action need only “intimate that some form of 26 punishment or adverse regulatory action would follow.” (Id.) 27 1 Plaintiff’s allegations that Defendant Oviedo “signed off” on the falsified information and 2 chose not to report Defendant Barroso for misconduct support a reasonable inference he took 3 adverse action. Plaintiff alleges a Threat Assessment and a STG Affiliation identifying a prisoner 4 as a current gang member pose substantial risks to his or her safety. (ECF No. 15 at 3.) See 5 Watison v. Carter, 668 F.3d 1108, 1115 (9th Cir. 2012) (filing of false disciplinary charge and 6 placing prisoner in administrative segregation constituted adverse action in First Amendment 7 retaliation claim). That Defendant Oviedo “signed off” on the Threat Assessment supports an 8 inference his approval was required for the Threat Assessment to occur and thus that he was 9 involved in the adverse action.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 Case No. 23-cv-06095-JSC DANIEL E. BESS, 8 ORDER DENYING DEFENDANTS' Plaintiff, MOTION TO DISMISS 9 Re: Dkt. Nos. 14 v. 10 J. BARROSO, et al., 11 Defendants.
12 INTRODUCTION 13 Plaintiff, a California prisoner proceeding without an attorney, filed this 42 U.S.C. § 1983 14 action against three officials at the Correctional Training Facility (“CTF”) in Soledad, California – 15 Lieutenant J. Barroso, Lieutenant J. Martinez, and R. Oviedo (“Defendants”). Following review 16 of the complaint under 28 U.S.C. § 1915A, five claims were dismissed and two remain: violations 17 of the First Amendment (retaliation) and the Bane Act. (ECF No. 7.) Defendants moved to 18 dismiss the First Amendment retaliation claim against Defendant Oviedo and the Bane Act claim 19 against all three Defendants under Rule 12(b)(6) of the Federal Rules of Civil Procedure for 20 failure to state a claim upon which relief may be granted. (ECF No. 14.) Plaintiff filed an 21 opposition, and Defendants filed a reply. (ECF Nos. 15, 16). 22 For the reasons discussed below, Defendants’ motion to dismiss is DENIED. 23 BACKGROUND 24 In 2022, Plaintiff filed a lawsuit against a CTF employee, Sergeant J. Peffley, who is not a 25 defendant in the instant case. See Bess v. Peffley, No. 22-cv-00341-JSC (PR). In this action, 26 Plaintiff alleges Defendants acted in retaliation for the lawsuit against Sergeant Peffley and for his 27 administrative grievances. In particular, he alleges Defendant Barroso prepared a Threat 1 Assessment on August 2, 2023, to falsely identify Plaintiff as a member of the “Sureno” gang. 2 (ECF No. 1 at 9.) Plaintiff alleges Defendant Barroso created this false Threat Assessment on the 3 same day the Court denied in part Sergeant Peffley’s motion for summary judgment in his prior 4 lawsuit. (Id.; see Bess v. Peffley, No. 22-cv-00341-JSC (PR) (ECF No. 30.)) He further alleges 5 Defendant Martinez conducted a destructive cell search on August 19, 2023, during which he 6 “poured coffee or dark liquid (possibly urine) on [his] legal papers” including his “Staff 7 Complaint and pending lawsuit (Bess v Peffley).” (ECF No. 1 at 10.) Lastly, Plaintiff alleges on 8 September 7, 2023, Defendant Oviedo “handed [Plaintiff] a copy of the false Threat Assessment, a 9 false STG Affiliation Sheet, and a Confidential Information Listing” and “indicated he’s signing 10 off on the falsified information.” (ECF No. 1 at 10) (internal citations omitted.) At this meeting, 11 Plaintiff alleges he informed Defendant Oviedo “he’s required to report misconduct - a ministerial 12 duty” and that instead of doing so, Defendant Oviedo responded, “You still might settle your case. 13 I just don’t want anything to do with it.” (Id. at 10:10-12.) 14 DISCUSSION 15 Defendants argue for dismissal under Rule 12(b)(6) of the First Amendment retaliation 16 claim against Defendant Oviedo and the Bane Act claim against all three Defendants.1 17 I. Standard of Review 18 On a 12(b)(6) motion to dismiss for failure to state a claim, “the issue is not whether 19 plaintiff will ultimately prevail, but whether he is entitled to offer evidence to support his claim.” 20 Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). Federal Rule of Civil Procedure 21 8(a)(2) requires only “a short and plain statement of the claim showing the pleader is entitled to 22 relief.” “Specific facts are not necessary; the statement need only give the defendant fair notice of 23 what the . . . . claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 24 (2007) (citations and internal quotations omitted). While a complaint “does not need detailed 25 factual allegations, . . . a plaintiff’s obligation to provide the grounds of his entitle[ment] to relief 26 requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of 27 1 action will not do. . . . Factual allegations must be enough to raise a right to relief above the 2 speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 550 (2007) (citations omitted). 3 A motion to dismiss should be granted if the complaint does not proffer “enough facts to state a 4 claim for relief that is plausible on its face.” Id. at 570. 5 Allegations of fact in the complaint must be taken as true and construed in the light most 6 favorable to the non-moving party. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th 7 Cir. 2001). The court need not, however, “accept as true allegations that are merely conclusory, 8 unwarranted deductions of fact, or unreasonable inferences.” Id. 9 A pleading filed by a party unrepresented by counsel must be liberally construed, and 10 “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted 11 by lawyers.” Estelle v. Gamble, 429 U.S. 97, 106 (1976) (internal quotations and citations 12 omitted). 13 II. Analysis 14 A. Retaliation Claim Against Defendant Oviedo 15 There are five requisite elements for a First amendment retaliation claim in the prison 16 context: (1) An assertion that a state actor took some adverse action against an 17 inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment 18 rights, and (5) the action did not reasonably advance a legitimate correctional goal. 19 Rhodes v Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). Without citing to any authority, 20 Defendants argue Plaintiff failed to properly plead the first element against Defendant Oviedo 21 because merely “signing off” on the Threat Assessment is not an adverse action. (ECF No. 14 at 22 4.) The Court disagrees. 23 An adverse action for the purposes of a First Amendment retaliation claim in the prison 24 context need not entail an “explicit, specific threat of discipline.” Brodheim v Cry, 584 F.3d 1262, 25 1270 (9th Cir. 2009). Instead, an adverse action need only “intimate that some form of 26 punishment or adverse regulatory action would follow.” (Id.) 27 1 Plaintiff’s allegations that Defendant Oviedo “signed off” on the falsified information and 2 chose not to report Defendant Barroso for misconduct support a reasonable inference he took 3 adverse action. Plaintiff alleges a Threat Assessment and a STG Affiliation identifying a prisoner 4 as a current gang member pose substantial risks to his or her safety. (ECF No. 15 at 3.) See 5 Watison v. Carter, 668 F.3d 1108, 1115 (9th Cir. 2012) (filing of false disciplinary charge and 6 placing prisoner in administrative segregation constituted adverse action in First Amendment 7 retaliation claim). That Defendant Oviedo “signed off” on the Threat Assessment supports an 8 inference his approval was required for the Threat Assessment to occur and thus that he was 9 involved in the adverse action. Additionally, Defendant Oviedo’s actions support an inference 10 that he communicated the Threat Assessment and STG Affiliation to Plaintiff to threaten him. 11 Further, Defendant Oviedo’s refusal to report Defendant Barroso for misconduct and his 12 suggestion that Plaintiff “still might settle [his] case” intimates the adverse regulatory action and 13 punishment of administrative segregation (identification as a “Sureno” gang member) would 14 continue if Plaintiff persisted in exercising his First Amendment rights. (ECF No. 15 at 3:15-20.) 15 Accordingly, the motion to dismiss this claim will be denied. 16 B. Bane Act Claim 17 Defendants also move to dismiss the Bane Act claim against all Defendants. The Bane Act 18 claim elements include:
19 (1) the official “intentionally interfered or attempted to interfere with the plaintiff’s civil rights by threats, intimidation, or coercion. This 20 includes making threats of violence, acting violently, or both, against the plaintiff or their property; (2) the plaintiff was harmed; and (3) the 21 defendant’s conduct was a substantial factor in causing the plaintiff’s harm.” 22 Judicial Council of California Civil Jury Instructions (2023) No. 3066. 23 Defendants assert Plaintiff did not allege a sufficient “nexus” between Defendants 24 Barroso’s conduct and a violation of Plaintiff’s civil rights because “the only evidence” that the 25 Threat Assessment was false “is Plaintiff’s disagreement with it.” (ECF No. 14 at 5:18-19.) But, 26 no evidence is required at this stage in the proceedings to support Plaintiff’s claim that Defendant 27 Barroso violated his rights by fabricating the Threat Assessment. The Court must accept as true 1 Plaintiff’s allegation Defendant Barroso fabricated the Threat Assessment. Together with the 2 alleged timing of the Threat Assessment’s production - on the day Plaintiff had a favorable ruling 3 in his pending case - the allegation that Defendant Barroso fabricated the Threat Assessment 4 supports a reasonable inference Defendant Barroso’s conduct “interfered” with the exercise of 5 Plaintiff’s constitutional right to file a lawsuit and pursue administrative grievances. Judicial 6 Council of California Civil Jury Instructions (2023) No. 3066; see also Rhodes v Robinson, 408 7 F.3d 559, 567-68 (9th Cir. 2005). 8 The motion also contests Plaintiff’s allegation that Defendant Oviedo failed to report 9 misconduct by noting Plaintiff did not provide “any evidence for the Threat Assessment being 10 false” other than “Plaintiff’s disagreement with it.” (ECF No. 14 at 5:18-19.) This argument, as 11 described above, fails to apply the proper standard of review on motion to dismiss. Additionally, 12 Plaintiff alleges Defendant Oviedo knowingly endorsed documents falsely identifying him as a 13 “Sureno” gang member. (ECF No. 1 at 10.) The Bane Act requires a Defendant to act with 14 “specific intent to violate the plaintiff’s constitutional rights.” Reese v. Cnty. of Sacramento, 888 15 F.3d 1030, 1042-43 (9th Cir. 2018). Taking Plaintiff’s allegations as true, Defendant Oviedo’s 16 informed endorsement of false filings supports a reasonable inference he acted with specific intent 17 to interfere, through implicit threat and intimidation, with Plaintiff’s constitutional right to file a 18 grievance. 19 Lastly, the motion argues no allegations connect Defendant Martinez’s destructive cell 20 search to an interference with a legal right through threat, intimidation, or coercion. (ECF No. 14 21 at 5.) The Court must accept as true Defendant Martinez “poured coffee or dark liquid (possibly 22 urine) on [Plaintiff’s] legal papers” including Plaintiff’s “Staff Complaint and pending lawsuit 23 (Bess v Peffley).” (ECF No. 1 at 10). These allegations reasonably support an inference that 24 Defendant Martinez interfered with Plaintiff’s constitutional right to file a lawsuit by “acting 25 violently . . . against . . . Plaintiff[‘s] . . . property.” Judicial Council of California Civil Jury 26 Instructions (2023) No. 3066. A further reasonable inference could be drawn that Defendant 27 Martinez’s conduct amounted to a threat of further violent destruction of Plaintiff’s property if he 1 For these reasons, the complaint states a claim capable of judicial determination against all 2 Defendants under the Bane Act. Defendants’ motion to dismiss this claim will be denied. 3 CONCLUSION 4 For the reasons explained above, 5 1. Defendants’ motion to dismiss is DENIED. 6 2. No later April 16, 2025, Defendants shall file a motion for summary judgment. The 7 motion shall be supported by adequate factual documentation and shall conform in all respects to 8 Federal Rule of Civil Procedure 56 and shall include as exhibits all records and incident reports 9 stemming from the events at issue. If Defendants are of the opinion this case cannot be resolved 10 by summary judgment, they shall so inform the Court prior to the date the summary judgment 11 motion is due. All papers filed with the Court shall be promptly served on Plaintiff. 12 At the time the dispositive motion is served, Defendants shall also serve, on a separate 13 paper, the appropriate notice required by Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc). See Woods v. Carey, 684 F.3d 934, 940-941 (9th Cir. 2012). 14 Plaintiff's opposition to the dispositive motion, if any, shall be filed with the Court and 15 served upon Defendant no later than May 16, 2025. Plaintiff must read the attached page headed 16 “NOTICE -- WARNING,” which is provided to him pursuant to Rand v. Rowland, 154 F.3d 952, 17 953-954 (9th Cir. 1998) (en banc). 18 Defendant shall file a reply brief no later than 14 days after the opposition is filed. 19 The motion shall be deemed submitted as of the date the reply brief is due. No hearing 20 will be held on the motion unless the Court so orders at a later date. 21 This order resolves docket number 14. 22 IT IS SO ORDERED. 23 Dated: February 4, 2025 24 25 JACQUELINE SCOTT CORLEY United States District Judge 26 27 1 NOTICE -- WARNING (SUMMARY JUDGMENT) 2 If Defendants move for summary judgment, they are seeking to have your case dismissed. 3 A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if 4 granted, end your case. 5 Rule 56 tells you what you must do in order to oppose a motion for summary judgment. 6 Generally, summary judgment must be granted when there is no genuine issue of material fact-- 7 that is, if there is no real dispute about any fact that would affect the result of your case, the party 8 who asked for summary judgment is entitled to judgment as a matter of law, which will end your case. When a party you are suing makes a motion for summary judgment that is properly 9 supported by declarations (or other sworn testimony), you cannot simply rely on what your 10 complaint says. Instead, you must set out specific facts in declarations, depositions, answers to 11 interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts 12 shown in Defendant's declarations and documents and show that there is a genuine issue of 13 material fact for trial. If you do not submit your own evidence in opposition, summary judgment, 14 if appropriate, may be entered against you. If summary judgment is granted, your case will be 15 dismissed and there will be no trial. 16
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