Gathrite v. Wilson

• Court: District Court, S.D. California
• Decided: August 29, 2022
• Docket: 3:19-cv-01852
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DeAngelo Lamar Gathrite Case No.: 19cv1852-JAH (NLS)

12 Plaintiff, ORDER ADOPTING THE 13 v. MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION 14 Heather Wilson, et al. REGARDING DEFENDANT’S Defendants. 15 MOTION TO DISMISS 16 17 INTRODUCTION 18 Pending before the Court is a Report and Recommendation (the “Report” or “R&R”) 19 submitted to this Court by the Honorable Nina L. Stormes, United States Magistrate Judge, 20 recommending that the Court grant in part and deny in part Defendants’ motion to dismiss 21 Plaintiff DeAngelo Lamar Gathrite’s (“Plaintiff” or “Gathrite”) First Amended Complaint. 22 After careful consideration of the Report, pleadings, and relevant materials, and for the 23 reasons set forth below, this Court ADOPTS Judge Stormes’ Report and GRANTS 24 Defendants’ motion to dismiss Plaintiff’s First Amendment freedom of association claims, 25 retaliation claims against Defendant Salinas and Trejo, and Fourteenth Amendment 26 procedural due process claim; but DENIES Defendants’ motion to dismiss Plaintiff’s First 27 Amendment retaliation claim against Defendant Wilson, which will be allowed to proceed. 28 /// 1 PROCEDURAL BACKGROUND 2 On September 26, 2019, Plaintiff DeAngelo Lamar Gathrite, proceeding pro se, filed 3 an action against Dr. Heather Wilson and Officers J. Salinas and J. Trejo (collectively, 4 “Defendants”) for alleged violations of Plaintiff’s civil rights. (ECF No. 1). Several 5 months later, Defendants filed a motion to dismiss Plaintiff’s First and Fourteenth 6 Amendment claims for failure to state a claim, (ECF No. 10), Plaintiff filed his response 7 in opposition to the motion (ECF No. 12), and Defendants replied to the opposition (ECF 8 No. 13). Judge Stormes issued a Report and Recommendation (the “August 5, 2020 9 Report”) for an order granting in part and denying in part Defendants’ motion to dismiss, 10 dismissing Plaintiff’s First Amendment Freedom of Association claim and Fourteenth 11 Amendment due process claim with leave to amend, and allowing Plaintiff’s First 12 Amendment Retaliation claim to proceed. (ECF No. 14 at 13). Plaintiff filed an objection 13 to the August 5, 2020 Report, (ECF No. 15), to which Defendants replied. (ECF No. 16). 14 The Court subsequently adopted Judge Stormes’ Report in full, overruling Plaintiff’s 15 objections. (ECF No. 17). 16 On October 22, 2020, Plaintiff filed his First Amended Complaint. (ECF No. 18). 17 Defendants filed a motion to dismiss the First Amended Complaint on December 21, 2020, 18 and the motion was fully briefed by February 12, 2021. (ECF Nos. 24, 26-27). On July 19 14, 2021, Judge Stormes issued a Report granting in part and denying in part Defendants’ 20 motion to dismiss. (ECF No. 28). Plaintiff has objected to the Report, and Defendants 21 have replied to the objection. (ECF Nos. 29-30). 22 /// 23 /// 24 /// 25 26 27 1 After a review of the relevant filings, the Court adopts the factual background and recitation of the allegations set forth in the Report in toto, and references them as if fully set forth herein. This Court 28 1 ANALYSIS 2 I. Legal Standard 3 When reviewing a Magistrate Judge’s report and recommendation, the “district court 4 must make a de novo determination of those portions of the report . . . to which objection 5 is made, and may accept, reject, or modify in whole or in part, the findings or 6 recommendations made by the magistrate [judge].” Love v. Scribner, 691 F. Supp. 2d 7 1215, 1222 (S.D. Cal. 2010)2 (citing 28 U.S.C. § 636(b)(1)). Courts can “accept, reject, or 8 modify, in whole or in part, the findings or recommendations made by the magistrate 9 judge.” Charfauros v. Kernan, 2018 WL 4275478, at *1 (S.D. Cal. Sept. 7, 2018) (citation 10 omitted). 11 II. Discussion 12 As a threshold matter, Plaintiff’s objection to the Report contains a request to amend 13 his pleadings. While the Court denies Plaintiff’s request to the extent that he seeks to 14 retroactively amend the operative complaint for purposes of the instant motion, to the 15 extent that the Court dismisses any of Plaintiff’s claims here, Plaintiff is given leave to file 16 a subsequent amended complaint. 17 Plaintiff’s First Amended Complaint raises a First Amendment freedom of 18 association claim, a First Amendment retaliation claim,3 and a Fourteenth Amendment 19 procedural due process claim. Judge Stormes concluded that Plaintiff’s freedom of 20 association claim and procedural due process claim should be dismissed with leave to 21 amend, but recommended that Plaintiff be allowed to proceed with his retaliation claims. 22 Plaintiff objected to Judge Stormes’ dismissal of his freedom of association and procedural 23 due process claims. The Court discusses each claim in turn below. 24 25

26 2 aff'd sub nom. Love v. Cate, 449 F. App'x 570 (9th Cir. 2011). 27 3 As noted by Judge Stormes, though Plaintiff did not create a separate section in his complaint for his retaliation claim, he alleges facts to suggest that there is a retaliation claim, and pro se pleadings are held 28 1 A. Plaintiff’s First Amendment Freedom of Association Claim 2 Plaintiff alleges that his right to freedom of association was violated because his 3 right to associate freely was infringed upon through the Clinician’s Timeout, which 4 deprived him of the ability to intimately associate with mental health group facilitators, 5 medical staff, and self-help groups. (ECF No. 18 at 3; ECF No. 28 at 5). Judge Stormes 6 concluded that Plaintiff’s First Amendment claim fails because (1) Plaintiff “does not 7 retain a right to generally converse with other inmates”; (2) “Plaintiff has not explained 8 how his association with medical staff and other health groups or his dayroom activities 9 and phone calls implicate any . . . protected activities”, providing only “conclusory 10 statement[s] that these activities are protected by the First Amendment”; and (3) that 11 recognizing a “general right for Plaintiff to associate with whomever he chooses runs 12 counter to the purpose of prison – confinement[.]” (ECF No. 28 at 5-6) (citations omitted). 13 Plaintiff filed objections to the Report, largely reiterating the underlying facts in the First 14 Amended Complaint, along with some additional facts. As to the additional alleged facts, 15 as noted in this Court’s prior adoption of the August 5, 2020 Report, “[t]he focus of any 16 Rule 12(b)6() dismissal . . . is the complaint” and “[i]n determining the propriety of a Rule 17 12(b)(6) dismissal, a court may not look beyond the complaint to plaintiff’s moving papers, 18 such as a memorandum in opposition to a defendant’s motion to dismiss.” Schneider v. 19 California Dept. of Corrections, 151 F.3d 1194 n.1 (9th Cir. 1998). 20 Plaintiff argues as he did in his First Amended Complaint that the Physician’s 21 Timeout deprived him of “the right to attend mental health groups, self help groups, toilet 22 access, phone, dayroom access, yard activities, lunch, food, [and] mental activities as a 23 whole.” (ECF No. 29 at 2). Plaintiff contends that the Physician’s Timeout “is not a 24 practice within the prison . . . and is not allowed in the CDC-R rules of regulations[.]” Id. 25 Plaintiff further argues that the “Enhanced Outpatient Program (“E.O.P.”) has protected 26 activities for mentally ill patients to engage in, in order to earn time credits off [their] 27 sentence”, and also claims that “[i]ntimate and expressive relationships are allowed to 28 E.O.P. patients to help cope with prison life[.]” Id. at 3. 1 Plaintiff’s objections fail to address the basis for Judge Stormes’ recommendation 2 and do not address or distinguish the cases cited and relied upon by Judge Stormes. See, 3 e.g., City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989) (“[W]e do not think the Constitution 4 recognizes a generalized right of ‘social association’ that includes chance encounters in 5 dance halls”); Hansen v. Nkwocha, 2016 WL 2898507, at *2 (E.D. Cal. May 17, 2016) 6 (finding that an officer’s instruction to plaintiff to not talk to another inmate during an 7 activity did not violate the plaintiff’s freedom of association); Overton v. Bazzetta, 539 8 U.S. 126, 131 (2003) (“An inmate does not retain rights inconsistent with proper 9 incarceration.”). 10 The Court accordingly finds that Plaintiff has failed to state a First Amendment 11 freedom of association claim against Defendants, and ADOPTS the Report’s 12 recommendation to DISMISS the claim without prejudice and with leave to amend. 13 B. Plaintiff’s First Amendment Retaliation Claims 14 Plaintiff next alleges that Defendants Salinas, Trejo, and Wilson improperly 15 retaliated against him in violation of his First Amendment rights. The Report recommends 16 that the Court dismiss the claims against Defendant Salinas and Trejo with leave to amend 17 but deny the motion to dismiss the claim against Defendant Wilson. (ECF No. 28 at 15). 18 As to Defendant Wilson, the Report concluded that Plaintiff “has pled sufficient facts to 19 establish a causal link” for purposes of his retaliation claim, and that Plaintiff has 20 appropriately alleged a chronology of events from which the Court can infer retaliation. 21 (ECF No. 28 at 13). Because the Report’s recommendation is well-reasoned, and because 22 Defendants have not filed an objection to the Report, the Court ADOPTS the Report’s 23 recommendation as to the First Amendment Retaliation claim against Defendant Wilson. 24 As such, Plaintiff is allowed to proceed with his First Amendment claim against Defendant 25 Wilson. 26 As to Defendants Salinas and Trejo, the Report concluded that the First Amended 27 Complaint did not adequately allege that Defendants Salinas and Trejo were aware that 28 Plaintiff filed complaints against them or other prison staff, though it noted that the original 1 complaint contained the requisite allegations. (ECF No. 28 at 13). In his objection, 2 Plaintiff alleges additional facts regarding the retaliation claims, but as discussed above, 3 the Court looks only to the complaint for purposes of a 12(b)(6) motion. See Schneider, 4 151 F.3d at n.1. Additional allegations notwithstanding, the Court agrees with Judge 5 Stormes: the First Amended Complaint does not adequately allege the required facts, 6 though it appears the original complaint does. As noted in the Report, an amended 7 complaint “supercedes the original, the latter being treated thereafter as non-existent.” 8 Rhodes v. Robinson, 621 F.3d 1002, 1005 (9th Cir. 2010) (quoting Luox v. Rhay, 375 F.2d 9 55, 57 (9th Cir. 1967)). 10 Accordingly, the Court ADOPTS the Report’s recommendation as to Plaintiff’s 11 First Amendment retaliation claims against Defendants Salinas and Trejo. Those claims 12 are DISMISSED without prejudice and with leave to amend. 13 C. Plaintiff’s Fourteenth Amendment Due Process Claim 14 Plaintiff alleges that the imposition of the “Clinician’s Timeout” violated his 15 Fourteenth Amendment Due Process rights. The Report concluded that Plaintiff failed to 16 state a Fourteenth Amendment procedural due process claim because Plaintiff has failed to 17 adequately allege a liberty or property interest as required by Sandin v. Conner, U.S. 472, 18 483-484 (1995). While state regulations may create a liberty interest in avoiding restrictive 19 conditions of confinement where those conditions create “atypical and significant hardship 20 on the inmate in relation to the ordinary incidents of prison life”, Judge Stormes reasoned 21 that, based on a review of the relevant guideposts4 as applied to the facts, Plaintiff’s alleged 22

23 4 Courts consider the following guideposts in determining whether prison conditions rise to the level of 24 an atypical and significant hardship: 25 1) whether the challenged condition mirrored those conditions imposed upon inmates in 26 administrative segregation and protective custody, and thus comported with the prison's discretionary authority; 2) the duration of the condition, and the degree of restraint 27 imposed; and 3) whether the state's action will invariably affect the duration of the prisoner's sentence. 28 1 conditions do not create the requisite liberty interest. (ECF No. 28 at 7) (quoted cases 2 omitted). 3 In his objection, Plaintiff argues that the Clinician’s Timeout “does not mirror any 4 condition imposed upon inmates or patients in administrative segregation, protective 5 custody or confinement, and does not comport with the prison’s discretionary authority; 6 that the duration and degree of the restraints imposed “will invariably and has affected the 7 duration of Plaintiff’s prison sentence”; and that Plaintiff’s prison sentence is now being 8 served while suffering chronic pain. (ECF No. 29 at 3). However, these statements, some 9 of which are conclusory in nature, do not sufficiently allege facts giving rise to the requisite 10 liberty interest. Moreover, Plaintiff provides no method for distinguishing the analogous 11 cases cited by Judge Stormes in deciding that Plaintiff’s circumstances did not give rise to 12 the requisite liberty interest. Accordingly, the Court agrees with and ADOPTS the 13 Report’s recommendation as to Plaintiff’s Fourteenth Amendment procedural due process 14 claim and DISMISSES the claim with leave to amend. 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26

27 Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003) (quoting Sandin, 515 U.S. at 486-87). 28 1 || IT IS HEREBY ODRERED, the Report is ADOPTED in full, and accordingly: 2 1. Plaintiff's First Amendment freedom of association claim is DISMISSED with 3 leave to amend; 4 2. Plaintiffs First Amendment retaliation claims against Defendant Salinas and 5 Trejo are DISMISSED with leave to amend; 6 3. Plaintiffs First Amendment retaliation claim against Defendant Wilson is 7 PERMITTED to proceed; and 8 4. Plaintiff's Fourteenth Amendment procedural due process claim is DISMISSED 9 with leave to amend. 10 Any future amended complaint should be complete in itself and without reference to 11 || prior complaints. 12 13 14 IT IS SO ORDERED. 15 16 || DATED: August 29, 2022 17 / HON. JOHN A. HOUSTON 18 / United States District Judge 19 20 21 22 23 24 25 26 27 28