Jackson v. Covello et.al.

• Court: District Court, S.D. California
• Decided: January 8, 2024
• Docket: 3:19-cv-02444-JAH-MMP
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RICARDO JACKSON Case No.: 3:19-cv-02444-JAH-MMP CDCR #AK-4312, 12 ORDER GRANTING DEFENDANTS’ Plaintiff, 13 MOTION TO DISMISS vs. PLAINTIFF’S FIRST AMENDED 14 COMPLAINT [ECF No. 57]

15 C/O MARTINEZ; A. CANEDO; 16 A. TAYLOR-GARCIA; R. FLORES; 17 P. PLASCNCIA; M. CARILLO,

18 Defendants. 19 20 21 22 Ricardo Jackson, (“Plaintiff”), currently incarcerated at the California Health Care 23 Facility located in Stockton, California is proceeding pro se and in forma pauperis (“IFP”) 24 in this civil rights action pursuant to 42 U.S.C. Section 1983. (ECF No. 45, FAC.) Plaintiff 25 alleges that Defendants, prison officials at the Richard J. Donovan Correctional Facility 26 (“RJD”) violated Plaintiff’s First Amendment rights to be free from retaliation. (See 27 generally FAC.) 28 1 Currently before the Court is Defendants’ motion to dismiss Plaintiff’s First 2 Amended Complaint (“FAC”). (See ECF No. 57.) Defendants contend that Plaintiff fails 3 to state a claim upon which relief may be granted or, alternatively, that Plaintiff’s FAC 4 should be dismissed because it violates Federal Rules of Civil Procedure 18(a) and 20(a). 5 (See generally id. at 2.) In addition, Defendants contend that the Eleventh Amendment 6 bars Plaintiff’s claims for money damages against Defendants in their official capacity. 7 (See id.) 8 A briefing schedule was issued and Plaintiff was informed that he was to file his 9 Opposition by March 15, 2023. (See ECF No. 59.) Plaintiff later filed four motions for 10 extensions of time to file an opposition which were all granted by the Court. (See ECF 11 Nos. 60-63, 64, 67-69, 71.) The final order granting Plaintiff’s request directed Plaintiff to 12 file his Opposition by August 21, 2023. That date has long since passed and Plaintiff has 13 not sought any further extensions of time nor has he filed an opposition. 14 Having carefully considered Plaintiff’s First Amended Complaint and the parties’ 15 brief, the Court GRANTS Defendants’ Motion to Dismiss Plaintiff’s First Amended 16 Complaint. 17 I. Background 18 A. Plaintiff’s Allegations 19 On December 22, 2015, Plaintiff alleges that an inmate “was forced” into a cell with 20 him. (See FAC at 5.) Plaintiff complained to an unnamed correctional officer who 21 purportedly told Plaintiff he “must not ask him any questions.” (Id.) Plaintiff told this 22 unnamed correctional officer that he was going to “write him up for retaliation” and in 23 response, this officer searched Plaintiff’s cell and “illegally took property items from the 24 cell.” (Id.) 25 On April 4, 2016, Plaintiff appeared before Defendant Flores (“Flores”) at a 26 Classification Committee hearing at which time Plaintiff claims he told Flores about the 27 December 2015 cell incident. (See id.) Plaintiff alleges Flores told the committee that 28 Plaintiff is “one who likes to file grievances against staff and officials.” (Id.) Flores told 1 the committee that Plaintiff is “clear for double cell.” (Id.) 2 Plaintiff appeared again before the classification committee on December 27, 2016. 3 (See id. at 7.) Flores again presided over the hearing and again “deem[ed] [Plaintiff] double 4 cell clear.” (Id.) Plaintiff filed a grievance against Flores on January 14, 2017 but “it went 5 unanswered.” (Id.) 6 On February of 2017, Defendant Canedo (“Canedo”) called Plaintiff to the program 7 office for a “RVR/115 hearing” for which Canedo was the hearing officer. (Id.) Plaintiff 8 alleges Canedo said to him “oh, so you’re the inmate who likes to file grievances against 9 staff and officials?” (Id. at 8.) Canedo asked Plaintiff if he had any witnesses for his 10 hearing and Plaintiff informed him that “Dr. John Hodges” is his witness and requested 11 that he be present at the hearing.” (Id.) However, Canedo informed Plaintiff that he was 12 going to find him guilty, that he had “spoken to seven nurses, and they told him they don’t 13 know what Plaintiff Jackson is talking about.” (Id.) Plaintiff was assessed a thirty (30) 14 day loss of privileges. (See id.) 15 Two years later, on February 12, 2018, Plaintiff’s cell was searched and “several 16 personal items were taken from Plaintiff’s cell” in retaliation for filing grievances. (Id. at 17 9.) When Plaintiff discovered items were missing, he notified Sergeant Keener1 of the 18 missing items. (See id.) He claims Keener told him that she would “check on all the 19 items/property taken” but she “never did.” (Id.) Plaintiff filed a grievance seeking the 20 return of the property but received no response. (See id.) 21 On November 19, 2018, Canedo called Plaintiff to the program office for “another 22 RVR/115 hearing” on the “same issue for not showing up for job assignments.” (Id. at 10.) 23 Plaintiff claims Canedo told him “I remember you, you’re the inmate who likes to write 24 staff up.” (Id.) Plaintiff asked Canedo to again call Dr. Hodges as his witness. (See id.) 25 Canedo called Dr. Hodges and asked him about Plaintiff’s “limited duty unassigned 26 27 28 1 status.” (Id.) Dr. Hodges told Canedo that Plaintiff has a “permanent disability, limited 2 duty, and unassigned” and he is “high risk medical and cannot be assigned.” (Id.) This 3 purportedly caused Canedo to get “upset and rudely hung up the phone on doctor” and told 4 Plaintiff he was finding him guilty.” (Id.) Plaintiff lost “good time credit” as a result of 5 the guilty finding. (Id. at 11.) 6 On February 15, 2019, there was a riot at RJD. (See id. at 12.) Plaintiff alleges 7 prison officials “ignore the serious risk of danger to inmates with disabilities who can get 8 hurt easily.” (Id.) Plaintiff claims as a result, he lives “every day not knowing and 9 wondering when and what is going to happen to us.” (Id. at 13.) 10 On January 16, 2019, Plaintiff was called to the program office by Defendant A. 11 Taylor-Garcia (“Taylor-Garcia”) for a classification committee hearing. (See id.) Plaintiff 12 told Taylor-Garcia that the information she had about him was “not correct” and it was 13 false information prepared by Flores and Canedo. (Id.) Plaintiff again asked for Dr. 14 Hodges to be called by Taylor-Garcia but she refused to do so. (See id. at 14.) Plaintiff 15 requested that Defendant Martinez (“Martinez”), who is Taylor-Garcia’s supervisor, also 16 call Dr. Hodges. (See id.) 17 Defendant Plascencia (“Plascencia”) called Plaintiff to her office and told him that 18 it “was time for Plaintiff’s annual classification committee hearing.” (Id.at 20.) Plaintiff 19 told Plascencia about his “past in-cell incidents which includes physical assault and battery 20 in the cell by cellmates.” (Id.) Plascencia was also informed that Plaintiff “cannot be 21 assigned to any work program.” (Id.) Plaintiff also gave Plascencia “documentation signed 22 by Dr. John Hodges that clearly stated that Plaintiff has a permanent disability.” (Id.) On 23 December 10, 2020, Plaintiff appeared before the classification committee. Defendant 24 Carrillo (“Carrillo”) was “head of the hearing” and Plascencia was also present. (Id. at 21.) 25 Plascencia told Plaintiff that she is “putting [him] up for transfer” and he is “clear for 26 double cell and dorm living.” (Id.) Plaintiff claims Carrillo did “nothing to stop 27 Plascencia’s illegal conduct” which is “in deliberate indifference toward [Plaintiff’s] 28 safety.” (Id. at 24.) 1 Plaintiff seeks injunctive relief, compensatory damages of $50,000 against each 2 Defendant, and punitive damages of $50,000 against each Defendant. (See id. at 41.) 3 II. Procedural History 4 Plaintiff initially filed this action in the Northern District of California. (See ECF 5 No. 1.) On December 18, 2019, United States District Judge Edward J. Davila determined 6 that the events giving rise to this action occurred at RJD and transferred the matter to this 7 Court. (See ECF No. 17.) This Court granted Plaintiff’s motion to proceed IFP and 8 dismissed all of his claims, with the exception of his First Amendment retaliation claim 9 against Defendant Flores, in his initial Complaint sua sponte pursuant to 28 U.S.C. Sections 10 1915(e)(2)(B) and 1915A, concluding that Plaintiff failed to state a claim for which relief 11 may be granted as to his Eighth and Fourteenth Amendment claims, and granted leave to 12 amend to cure the deficiencies identified. (See ECF No. 23.) Plaintiff was given the option 13 to either file an amended complaint to correct all the deficiencies of pleading identified by 14 the Court or notify the Court of his intention to proceed as to his First Amendment claim 15 against Defendant Flores only. (See id. at 14.) 16 Instead of initially choosing either option, Plaintiff filed a Notice of Appeal to the 17 Ninth Circuit Court of Appeals. (See ECF No. 24.) The Ninth Circuit found that a “review 18 of the record suggests that this court may lack jurisdiction over the appeal because the 19 February 20, 2020 order challenged in the appeal may not be final or immediately 20 appealable.” (See ECF No. 27) (citation omitted.) The appeal was dismissed on September 21 2, 2020 due to Plaintiff’s failure to prosecute. (See ECF No. 35.) 22 Plaintiff later sought three extensions of time to file an amended complaint which 23 were granted by the Court. (See ECF Nos. 34, 36, 38-39.) Plaintiff was given until January 24 10, 2021 to file his amended complaint. (See ECF No. 39.) Ultimately, the Court issued 25 an Order to Show Cause (OSC) requiring Plaintiff to provide an explanation for failing to 26 timely file an amended pleading or his action would be dismissed for failing to prosecute. 27 (See ECF No. 43.) Plaintiff responded to the OSC and the Court permitted him to file his 28 FAC on April 7, 2022. (See ECF Nos. 43-46.) 1 The Court performed the required sua sponte screening, dismissed his Eighth and 2 Fourteenth Amendment claims, as well as all claims against Defendants Covello, Juarez, 3 and Anderson, for failing to state claim and without leave to amend pursuant to 28 U.S.C. 4 Sections 1915(e)(2)(B) and 1915A. (ECF No. 47.) The Court found, however, that 5 Plaintiff’s FAC contained First Amendment retaliation allegations against Canedo, Taylor- 6 Garcia, Flores, Plascencia, and Carillo sufficient to survive the “low threshold” for 7 proceeding past the sua sponte screening required by 28 U.S.C. Sections 1915(e)(2)(B) and 8 1915A. (See id.) Accordingly, the Court directed the U.S. Marshal’s service to effect 9 service on Plaintiff’s behalf. (See id.) 10 III. Legal Standard 11 Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss 12 on the grounds that a complaint “fail[s] to state a claim upon which relief can be granted.” 13 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal 14 sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001); Bryan v. City 15 of Carlsbad, 207 F. Supp. 3d 1107, 1114 (S.D. Cal. Mar. 20, 2018). 16 Because Rule 12(b)(6) focuses on the “sufficiency” of a claim rather than the claim’s 17 substantive merits, “a court may [ordinarily] look only at the face of the complaint to decide 18 a motion to dismiss,” Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th 19 Cir. 2002), including the exhibits attached to it. See Fed. R. Civ. P. 10(c) (“A copy of a 20 written instrument that is an exhibit to a pleading is a part of the pleading for all 21 purposes.”); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 22 n.19 (9th Cir. 1990) (citing Amfac Mortg. Corp. v. Ariz. Mall of Tempe, Inc., 583 F.2d 426 23 (9th Cir. 1978) (“[M]aterial which is properly submitted as part of the complaint may be 24 considered” in ruling on a Rule 12(b)(6) motion to dismiss.) However, exhibits that 25 contradict the claims in a complaint may fatally undermine the complaint’s allegations. See 26 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (a plaintiff can “plead 27 himself out of a claim by including . . . details contrary to his claims.”) (citing Steckman v. 28 Hart Brewing, Inc., 143 F.3d 1293, 1295-96 (9th Cir. 1998) (courts “are not required to 1 accept as true conclusory allegations which are contradicted by documents referred to in 2 the complaint.”))); see also Nat’l Assoc. for the Advancement of Psychoanalysis v. Cal. Bd. 3 of Psychology, 228 F.3d 1043, 1049 (9th Cir. 2000) (courts “may consider facts contained 4 in documents attached to the complaint” to determining whether the complaint states a 5 claim for relief). 6 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 7 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 8 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); 9 Villa v. Maricopa Cnty., 865 F.3d 1224, 1228-29 (9th Cir. 2017). A claim is facially 10 plausible “when the plaintiff pleads factual content that allows the court to draw the 11 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 12 U.S. at 678. Plausibility requires pleading facts, as opposed to conclusory allegations or 13 the “formulaic recitation of the elements of a cause of action,” Twombly, 550 U.S. at 555, 14 which rise above the mere conceivability or possibility of unlawful conduct. Iqbal, 556 15 U.S. at 678-79; Somers v. Apple, Inc., 729 F.3d 953, 959-60 (9th Cir. 2013). “Threadbare 16 recitals of the elements of a cause of action, supported by mere conclusory statements, do 17 not suffice.” Iqbal, 556 U.S. at 678. While a pleading “does not require ‘detailed factual 18 allegations,’” Rule 8 nevertheless “demands more than an unadorned, the defendant- 19 unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 20 555). 21 Therefore, “[f]actual allegations must be enough to raise a right to relief above the 22 speculative level.” Twombly, 550 U.S. at 555. “Where a complaint pleads facts that are 23 merely consistent with a defendant’s liability, it stops short of the line between possibility 24 and plausibility of entitlement to relief.” Iqbal, 556 U.S. at 678 (citation and quotes 25 omitted); accord Lacey v. Maricopa Cnty., 693 F.3d 896, 911 (9th Cir. 2012) (en banc). 26 “In sum, for a complaint to survive a motion to dismiss, the non-conclusory ‘factual 27 content,’ and reasonable inferences [drawn] from that content, must be plausibly suggestive 28 of a claim entitling the plaintiff to relief.” Moss v. United States Secret Serv., 572 F.3d 962, 1 969 (9th Cir. 2009) (quoting Iqbal, 556 U.S. at 678). 2 IV. Discussion 3 To state a claim under 42 U.S.C. Section 1983, a plaintiff must allege two essential 4 elements: (1) that a right secured by the Constitution or laws of the United States was 5 violated, and (2) that the alleged violation was committed by a person acting under the 6 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030, 7 1035-36 (9th Cir. 2015). 8 A. First Amendment 9 All Defendants move to dismiss Plaintiff’s First Amendment retaliation claims on 10 the ground that he failed to state a claim as to any Defendant. (See Defs. Memo of P&As, 11 EF No. 57 at 12.) To state a claim for retaliation in violation of the First Amendment, 12 Plaintiff must allege that: (1) he was subject to “adverse action” by a state actor, (2) because 13 he engaged in (3) “protected conduct,” and (4) that the adverse action “chilled [his] exercise 14 of his First Amendment rights,” and (5) “the action did not reasonably advance a legitimate 15 correctional goal.” See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (citing 16 Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000); Barnett v. Centoni, 31 F.3d 813, 815- 17 16 (9th Cir. 1994)). Protected conduct includes filing prison grievances or litigation against 18 prison officials. See id. at 568. In order to demonstrate that the adverse action was 19 “because of” Plaintiff’s protected conduct, he must allege that “his protected conduct was 20 ‘the substantial or motivating factor behind the defendant’s conduct.’” See Brodheim v. 21 Cry, 584 F.3d 1262, 1271 (9th Cir. 2009) (quoting Soranno’s Gasco, Inc. v. Morgan, 874 22 F.2d 1310, 1314 (9th Cir. 1989)). Additionally, to allege that the adverse action did not 23 “‘advance legitimate goals of the correctional institution,’” Plaintiff must allege “in 24 addition to a retaliatory motive, that the defendant’s actions were arbitrary and capricious, 25 or that they were ‘unnecessary to the maintenance of order in the institution . . . .’” Watison 26 v. Carter, 668 F.3d 1108, 1114-15 (quoting Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 27 1985); Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir. 1984) (internal citations 28 omitted)). 1 1. Defendant Flores 2 Defendant Flores argues that Plaintiff has not alleged that his filing of inmate 3 grievances “was the substantial or motivating factor” for the classification committee 4 hearings that denied Plaintiff single cell status and he does not allege “facts showing that 5 the findings at the April 4 or December 27 classification committee hearings did not 6 advance a legitimate correctional goal.” (ECF No. 57 at 13-14.) 7 Plaintiff alleges that he appeared before Defendant Flores at a Classification Hearing 8 on April 4, 2016 at which time he told Defendant Flores about an incident that occurred in 9 December of 2015. (See FAC at 5.) Specifically, Plaintiff informed Defendant Flores that 10 an inmate had been “forced” into a cell with him and when Plaintiff complained to an 11 unnamed correctional officer, this officer retaliated against Plaintiff by searching his cell 12 and taking his personal property. (See id.) 13 At this hearing, in response to Plaintiff’s allegations, Defendant Flores purportedly 14 told the committee that Plaintiff is “one who likes to file grievances against staff and 15 officials.” (Id.) Defendant Flores then cleared Plaintiff to be housed in a double cell. (See 16 id.) Plaintiff also appeared before the classification committee on December 27, 2016. 17 (See id. at 7.) Flores again presided over the hearing and again “deem[ed] [Plaintiff] double 18 cell clear.” (Id.) 19 Defendant Flores argues that Plaintiff has not alleged a retaliatory motive or the 20 absence of a legitimate correctional goal for the actions Defendant Flores took. 21 Specifically, Defendant Flores argues Plaintiff cannot allege a retaliation claim against him 22 because he has not alleged that “Flores called or summoned the April 4 or December 27 23 hearings because of [Plaintiff’s] alleged filing of grievances.” (ECF No. 57 at 13.) In 24 addition, Defendant Flores argues that Plaintiff is required to show that the challenged 25 action did not advance a legitimate correctional goal and he failed to do so. (Id. at 14, 26 citing Rizzo, 778 F.2d at 532.) 27 As noted above, Plaintiff has not filed a response to any of Defendants’ arguments. 28 Nevertheless, the Court will address both of Defendant Flores’ arguments. While the Court 1 agrees with Defendant Flores that there are no allegations that Plaintiff was summoned to 2 these classification hearings because Plaintiff had filed grievances, a liberal construction 3 of Plaintiff’s claims would show that Plaintiff is not alleging that the hearing itself was a 4 retaliatory action but he is alleging that he was denied a single cell at the hearing because 5 he had previously filed grievances. 6 To allege facts sufficient to demonstrate a retaliatory motive, Plaintiff must 7 demonstrate that his protected activities were a “substantial” or “motivating” factor behind 8 the defendant's challenged conduct. Brodheim, 584 F.3d at 1271. This requires Plaintiff to 9 allege direct or circumstantial evidence of defendant's alleged retaliatory motive; mere 10 speculation is not sufficient. See McCollum v. CDCR, 647 F.3d 870, 882–83 (9th Cir.2011); 11 accord, Wood v. Yordy, 753 F.3d 899, 905 (9th Cir.2014). In addition to alleging 12 Defendant Flores’ knowledge of Plaintiff’s protected conduct, circumstantial evidence of 13 motive may include: (1) proximity in time between the protected conduct and the alleged 14 retaliation; (2) defendant’s expressed opposition to the protected conduct; and (3) other 15 evidence showing that defendant’s reasons for the challenged action were false or 16 pretextual. McCollum, 647 F.3d at 882 (quoting Allen v. Iranon, 283 F.3d 1070, 1077 (9th 17 Cir.2002)). 18 Plaintiff has attached the Classification Committee Chrono for the hearing that was 19 conducted on April 4, 2016 to his FAC. (See Ex. E, ECF No. 45-1 at 28.) According to 20 this chrono, this hearing was conducted because it was Plaintiff’s “annual review” and it 21 states that Plaintiff “was screened for single cell housing needs and does not meet the 22 criteria.” Id. Simply finding that Plaintiff is not eligible for single cell housing, by itself, 23 does not support an inference that this decision was made in retaliation for Plaintiff filing 24 administrative grievances. Plaintiff alleges that Defendant Flores remarked during the 25 hearing that Plaintiff was known to file grievances against officials but he fails to allege 26 sufficient additional facts that would link those comments to the decision to deny single 27 cell housing. A claim is facially plausible “when the plaintiff pleads factual content that 28 allows the court to draw the reasonable inference that the defendant is liable for the 1 misconduct alleged.” Iqbal, 556 U.S. at 678. Here, the Court finds that Plaintiff has failed 2 to allege facts sufficient to show that a plausible link exists between the alleged comments 3 and the actions taken by the classification committee. 4 Even if Plaintiff were able to allege facts to show a causal link between Defendant 5 Flores’ comments and the denial of single cell status, Plaintiff has not met his burden to 6 allege facts sufficient to show that the denial of single cell status did not advance a 7 legitimate correctional goal. Plaintiff alleges that Defendant Flores “made deliberate false 8 and misleading statements on record” that Plaintiff “has no history of in cell violence and 9 is clear for double cell, copy of classification chrono attached.” (FAC at 6, citing Ex. E, 10 ECF No. 45-1 at 28.) The Court construes this to be an attempt on Plaintiff’s behalf to 11 demonstrate that there was not a legitimate penological goal when Defendant Flores denied 12 Plaintiff single cell status. However, the chrono cited by Plaintiff does not contain any 13 statement that he did not have a history of in-cell violence. (See ECF No. 45-1 at 28.) 14 Defendants correctly assert that Plaintiff has not alleged plausibly of the absence of 15 a legitimate correctional purpose for their actions, which appear to be consistent with 16 CDCR regulations. Defendants point to CDCR regulations that provide that “all inmates 17 are expected to double-cell.” (ECF No. 57 at 14 citing 15 Cal. Code Reg. § 3269 (“All 18 inmates shall be assigned to double-cell housing” and they are “not entitled to single-cell 19 housing, a housing location of choice, or a cellmate of their choice.”).) Plaintiff has set 20 forth no plausible allegation that the decision to house him in a double cell did not serve a 21 legitimate correctional goal. See Rizzo, 778 F.2d at 532. 22 Accordingly, Defendants’ Motion to Dismiss the First Amendment retaliation 23 claims against Defendant Flores is GRANTED. 24 2. Defendant Canedo 25 Defendant Canedo argues there are insufficient facts to show a causal connection 26 between any action on his part and the alleged retaliatory actions taken against Plaintiff. 27 (See ECF No. 57 at 14-15.) In addition, to the extent that Plaintiff suggests there was no 28 legitimate reason to issue the RVRs against him, the evidence he submits in support of his 1 FAC shows that there was “some evidence” to support the issue of the RVRs. (See id. at 2 15.) Finally, Defendant Canedo argues that Plaintiff “has not and cannot allege facts 3 sufficient to show that the February 2017 and November 2018 RVRs did not advance a 4 legitimate penological goal.” (Id.) 5 Defendant Canedo was a hearing officer for an “RVR/115” hearing in February of 6 2017. (FAC at 7.) Defendant Canedo purportedly said to Plaintiff “oh, so you’re the 7 inmate who likes to file grievances against staff and officials?” (Id. at 8.) Plaintiff was 8 found guilty of the RVR violation and was assessed a thirty (30) day loss of privileges. 9 (See id.) 10 A few months later, on November 19, 2018, Defendant Canedo called Plaintiff to 11 the program office for “another RVR/115 hearing” on the “same issue for not showing up 12 for job assignments.” (Id. at 10.) Plaintiff claims Canedo told him “I remember you, you’re 13 the inmate who likes to write staff up.” (Id.) Plaintiff asked Canedo to call Dr. Hodges as 14 his witness. (See id.) Canedo called Dr. Hodges and asked him about Plaintiff’s “limited 15 duty unassigned status.” (Id.) Dr. Hodges told Canedo that Plaintiff has a “permanent 16 disability, limited duty, and unassigned” and he is “high risk medical and cannot be 17 assigned.” (Id.) This purportedly caused Canedo to get “upset and rudely hung up the 18 phone on doctor” and told Plaintiff he was finding him guilty.” (Id.) 19 The Court agrees with Defendant Canedo that Plaintiff’s allegations do not 20 sufficiently allege facts that his actions in finding Plaintiff guilty of the disciplinary 21 infractions were motivated by Plaintiff’s protected conduct. Plaintiff must show that the 22 exercise of his First Amendment rights was a “substantial” or “motivating” factor behind 23 Defendant Canedo’s conduct. Soranno’s Gasco, Inc, 874 F.2d at 1314. 24 Here, Defendants’ point to Plaintiff’s own allegations and exhibits to show that there 25 is evidence that Plaintiff “committed the underlying rules violation.” (ECF No. 57 at 15.) 26 Plaintiff acknowledges at the first RVR hearing that Defendant Canedo spoke to seven 27 nurses to determine whether he had failed to show up to work. (ECF. No. 45 at 8.) 28 Moreover, this is the same allegation made in the grievance filed by Plaintiff with regard 1 to this hearing. Specifically, Plaintiff writes that he told Defendant Canedo that he did not 2 have a job assignment but Canedo told him that “he had spoken to seven nurses who told 3 him that [Plaintiff] had no medical record or chrono about medical issues.” (ECF No. 45- 4 1 at 43, CDCR 602-A Inmate/Parolee Appeal Form, Log. No. 17-1599, dated Feb. 6, 2017.) 5 Plaintiff’s factual allegations and exhibits do not support a finding that he has 6 plausibly stated a retaliation claim against Defendant Canedo because his claims that 7 Defendant Canedo’s motivations in finding him guilty of the RVRs are conclusory. These 8 claims fail to establish a “‘causal connection’ between the government defendant’s 9 ‘retaliatory animus’ and the plaintiff’s ‘subsequent injury.’” Nieves v. Bartlett, 139 S.Ct. 10 1715, 1722 (2019) (citation omitted). Retaliatory motive must be the “but-for” cause of 11 the injury in that “the adverse action against the plaintiff would not have been taken absent 12 the retaliatory motive.” Id. Plaintiff’s own allegations show that Defendant Canedo 13 consulted with other staff officials before ruling on Plaintiff’s RVR and there is no 14 allegation that he made the rulings solely based on his comment that he was aware that 15 Plaintiff had filed administrative grievances in the past. 16 Accordingly, Defendants’ Motion to Dismiss the First Amendment retaliation 17 claims against Defendant Canedo is GRANTED. 18 3. Defendants Taylor-Garcia, Martinez, Plascencia and Carrillo 19 Defendants Taylor-Garcia, Martinez, Plascencia and Carrillo move to dismiss 20 Plaintiff’s retaliation claims against them because he does not allege that any of their 21 actions were “because of his filing of inmate grievances against prison staff and officials,” 22 there is no allegation that they took any “adverse action” against him, and he fails to allege 23 that the actions they took “did not advance any legitimate correctional goal.” (ECF No. 57 24 at 16-19.) 25 Plaintiff alleges that Defendant Taylor-Garcia presided over a classification 26 committee hearing on January 16, 2019. (ECF No. 45 at 13.) During this hearing, Plaintiff 27 claims he told Defendant Taylor-Garcia that the information she was relying on was “not 28 correct” and it was false information prepared by Flores and Canedo. (Id.) Plaintiff asked 1 Defendant Taylor-Garcia to call Dr. Hodges but she refused to do so. (See id. at 14.) 2 Plaintiff requested that Defendant Martinez (“Martinez”), who is Taylor-Garcia’s 3 supervisor, also call Dr. Hodges. (See id.) 4 Defendant Plascencia called Plaintiff to her office and told him that it “was time for 5 Plaintiff’s annual classification committee hearing.” (Id. at 20.) Plaintiff told Plascencia 6 about his “past in-cell incidents which includes physical assault and battery in the cell by 7 cellmates.” (Id.) Plascencia was also informed that Plaintiff “cannot be assigned to any 8 work program.” (Id.) Plaintiff also gave Plascencia “documentation signed by Dr. John 9 Hodges that clearly stated that Plaintiff has a permanent disability.” (Id.) On December 10 10, 2020, Plaintiff appeared before the classification committee. Defendant Carrillo 11 (“Carrillo”) was “head of the hearing” and Plascencia was also present. (Id. at 21.) 12 Plascencia told Plaintiff that she is “putting [him] up for transfer” and he is “clear for 13 double cell and dorm living.” (Id.) Plaintiff claims Carrillo did “nothing to stop 14 Plascencia’s illegal conduct.” (Id. at 24.) 15 Here, Plaintiff’s retaliation claims against these Defendants must be dismissed 16 because he fails to allege any facts that any of these Defendants took any action against 17 him because he engaged in protected conduct. As stated above, Plaintiff must allege that 18 “his protected conduct was ‘the substantial or motivating factor behind the defendant’s 19 conduct.’” See Brodheim, 584 F.3d at 1271. The Court cannot find that Plaintiff has 20 alleged a causal connection if he has failed to even allege that they were aware that he had 21 previously filed grievances or engaged in any protected conduct. 22 Accordingly, Defendants’ Motion to Dismiss the First Amendment retaliation 23 claims against Defendants Taylor-Garcia, Martinez, Plascencia and Carrillo is 24 GRANTED. 25 B. Eleventh Amendment 26 Defendants argue that Plaintiff’s claim for monetary damages against them in their 27 official capacity is barred by the Eleventh Amendment. (See ECF 57 at 23-24.) While the 28 Eleventh Amendment bars a prisoner’s section 1983 claims against state actors sued in 1 || their official capacities, Will v. Michigan Dep’t of State Police, 4[91] U.S. 58, 66 (1989), 2 ||it does not bar damage actions against state officials sued in their personal or individual 3 ||capacities. Hafer v. Melo, 502 U.S. 21, 31 (1991); Pena v. Gardner, 976 F.2d 469, 472-73 4 || (9th Cir. 1992). 5 When a state actor is alleged to have violated both federal and state law and is sued 6 || for damages under section 1983 in his individual or personal capacity, there is no Eleventh 7 || Amendment bar, even if state law provides for indemnification. Ashker v. California Dep’t 8 || of Corrections, 112 F.3d 392, 395 (9th Cir. 1997). Plaintiff brings this § 1983 suit against 9 || Defendants in both their individual and official capacities. (See ECF No. 45 at 2.) The 10 Supreme Court has made it clear that a plaintiff can establish personal liability in a section 11 action simply by showing that each official acted under color of state law in 12 || deprivation of a federal right. Hafer, 502 U.S. at 25. 13 Consequently, the Court GRANTS Defendants’ Motion to Dismiss on Eleventh 14 |} Amendment grounds. 15 V. Conclusion and Orders 16 Accordingly, the Court: 17 (1) GRANTS Defendants’ Motion to Dismiss Plaintiff's First Amended 18 Complaint for failing to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) (ECF No. 57); 19 (2) DENIES Defendants’ Motion to Dismiss Plaintiffs First Amended 20 ||Complaint pursuant to Fed.R.Civ.P. 18(a) and 20(a) as moot. 21 (3) DIRECTS the Clerk of Court to enter judgment as to all Defendants and close 22 || the file. 23 IT IS SO ORDERED. VU 24 Dated: January 8, 2024 L-t— 25 Hgn. John A. Houston % ited States District Judge 27 28 15 oe