1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 JIDEOFOR AJAELO, Case No.: 24-cv-02472-AJB-MMP
10 Plaintiff, REPORT AND 11 v. RECOMMENDATION RE DEFENDANTS’ MOTION TO 12 R. ESTRADA, et al., DISMISS; AND 13 Defendants. ORDER DENYING PLAINTIFF’S 14 MOTION TO APPOINT COUNSEL 15 [ECF Nos. 10, 14] 16 17 18 This Report and Recommendation is submitted to United States District Judge 19 Anthony J. Battaglia pursuant to 28 U.S.C. § 636(b) and Civil Local Rules 72.1(c) and 72.3 20 of the United States District Court for the Southern District of California. Pending before 21 the Court is Defendants R. Estrada and Mario Alonzo’s Motion to Dismiss. ECF No. 10. 22 Plaintiff filed an opposition, to which Defendants replied. ECF Nos. 12, 13. The Court 23 found the motion suitable for determination on the papers and without oral argument 24 pursuant to Civil Local Rule 7.1(d)(1). ECF No. 11. After briefing on Defendants’ motion 25 was complete, Plaintiff filed a Motion to Appoint Counsel. ECF No. 14. For the reasons 26 set forth below, the Court RECOMMENDS the District Judge GRANT IN PART and 27 DENY IN PART Defendants’ Motion to Dismiss. ECF No. 10. In addition, the Court 28 DENIES Plaintiff’s Motion to Appoint Counsel. ECF No. 14. 1 I. RELEVANT BACKGROUND 2 A. Allegations in the Complaint 3 The Court incorporates the summary of Plaintiff’s allegations set forth in its prior 4 order, ECF No. 4, and summarizes the allegations relevant to this motion below. 5 Plaintiff alleges on January 13, 2024, he was walking the track on the recreational 6 yard at Centinela State Prison, when Defendant Sergeant Estrada “ordered Plaintiff to 7 remove his durag (or Do-rag), citing an unwritten policy prohibiting its use outside.” ECF 8 No. 1 ¶ 1. Plaintiff had worn a durag, which are approved by the California Department of 9 Corrections and Rehabilitation (CDCR) for sale and purchase at the prison canteen, on the 10 yard regularly for over fourteen years. Id. ¶¶ 2, 9–10. Plaintiff told Defendant Estrada the 11 rule prohibiting him from wearing a durag was racially discriminatory because “durags are 12 predominately worn by Black inmates to protect and manage their hair.” Id. ¶ 2. When 13 Defendant Estrada threatened a Rules Violation Report (“RVR”) if Plaintiff did not 14 comply, Plaintiff complied by returning to his housing unit. Id. ¶¶ 3–4. 15 One week later, on January 20, 2024, Defendant Estrada issued an RVR charging 16 Plaintiff with delaying a peace officer in the performance of duties. Id. ¶ 5. 17 A hearing on the RVR was held on January 25, 2024, and Defendant Alonzo was 18 the Senior Hearing Officer. Id. ¶ 6. Plaintiff asserted he: (a) complied with Defendant 19 Estrada’s order, (b) did not delay Estrada in the performance of his duties, and (c) no CDCR 20 regulation prohibits durags on the yard. Id. Defendant Alonzo changed the charge to 21 disobeying an order, found Plaintiff guilty, and sentenced Plaintiff to thirty days loss of 22 credits, ten days confinement to quarters, and ninety days loss of phone, yard, day room, 23 and package privileges. Id. ¶¶ 6, 21. 24 Plaintiff alleges Defendant Estrada fabricated the RVR, which Defendant Alonzo 25 unfairly adjudicated, in retaliation for Plaintiff’s previously filing a successful civil rights 26 complaint. Id. ¶¶ 32–35. Specifically, Plaintiff settled a prior civil rights lawsuit in 2022 27 “related to bias treatment by” Centinela State Prison staff “for issuing an RVR that 28 involved racial discrimination.” Id. ¶¶ 12, 30, 32. Plaintiff alleges Defendant Alonzo is the 1 same Senior Hearing Officer “involved in that previous case” and who “adjudicated the 2 previous RVR” and “is also responsible for adjudicating the current RVR[,]” which 3 Plaintiff contends indicates a retaliatory motive behind the January 2024 RVR finding. Id. 4 ¶¶ 12, 33. Plaintiff contends “[t]he issuance of the RVR, and the resulting disciplinary 5 action, were motivated by Defendants’ retaliatory intent in response to Plaintiff’s prior 6 protected activity” and “the actions against him by the Defendants are in direct retaliation 7 for his prior civil rights complaint[.]” Id. ¶¶ 17, 35. 8 B. Procedural History 9 Plaintiff proceeding pro se filed this 42 U.S.C. § 1983 action, asserting Defendant 10 Estrada, Alonzo, I. Black, and F. Guzman violated his First Amendment and Fourteenth 11 Amendment rights. ECF No. 1. Specifically, Plaintiff brings claims for violations of (1) 12 the First Amendment right to freedom of expression, (2) the Fourteenth Amendment Equal 13 Protection Clause, and (3) First Amendment retaliation for filing his prior lawsuit. See id. 14 On February 24, 2025, the Court granted Plaintiff leave to proceed in forma pauperis 15 (IFP), screened the Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 16 determined only Plaintiff’s claims against Defendants Estrada and Alonzo survived. ECF 17 No. 4. With respect to Plaintiff’s First Amendment retaliation claim, the Court found 18 Plaintiff plausibly alleged the adverse action of filing a false disciplinary charge for 19 Plaintiff’s prior protected activity of filing a civil rights action. Id. at 7. The Court also 20 found this created a chilling effect and “did not reasonably advance a legitimate 21 correctional goal” because Plaintiff alleges “there are no established CDCR regulations 22 against wearing a CDCR-approved durag on the yard, which are similar to other head 23 coverings allowed on the yard, and therefore Defendants’ actions were arbitrary.” Id. The 24 Court found Plaintiff met the “low threshold” to survive screening and provided Plaintiff 25 the opportunity to either (1) notify the Court of his intent to proceed with his First 26 Amendment and Equal Protection claims against Defendants Estrada and Alonzo only; or 27 (2) file a First Amended Complaint to correct the deficiencies of pleading identified in the 28 Court’s screening Order. Id. at 7, 9. 1 Plaintiff informed the Court that he intended to proceed with the claims against 2 Defendants Estrada and Alonzo only. ECF No. 5. The Court then dismissed all defendants 3 in Plaintiff’s Complaint except Defendants Estrada and Alonzo and directed service of the 4 Complaint on the remaining defendants. ECF No. 6. 5 Accordingly, the only claims remaining in this civil rights case are Plaintiff’s First 6 Amendment freedom of expression and retaliation claims, as well as his Fourteenth 7 Amendment Equal Protection Clause claim against Defendants Estrada and Alonzo. See 8 ECF Nos. 1, 4, 6. Plaintiff claims denying him the right to wear a durag on the yard and 9 disciplining him for doing so violated his First Amendment right to free expression (count 10 one), was a denial of equal protection under the Fourteenth Amendment (count two), and 11 amounted to retaliation under the First Amendment for filing the prior civil rights action in 12 2020, which subsequently settled in 2022 (hereinafter “the prior lawsuit”) (count three). 13 See generally ECF No. 1; ECF No. 4 at 5. 14 On July 14, 2025, Defendants Estrada and Alonzo filed this Motion to Dismiss 15 pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6), challenging Plaintiff’s First 16 Amendment retaliation claim only. ECF No. 10.1 Defendants assert Plaintiff fails to plead 17 facts showing Defendant Estrada issued an RVR and then Defendant Alonzo found 18 Plaintiff guilty of that RVR “because of” Plaintiff’s prior protected conduct of filing the 19 prior lawsuit. ECF No. 10-1 at 7. Specifically, Defendants assert Plaintiff does not plead 20 facts to show either Defendant Estrada or Alonzo was aware of the prior lawsuit. Id. 21 In his opposition, Plaintiff asserts the RVR that was the subject of the prior lawsuit 22 also addressed actions of Defendant Alonzo. ECF No. 12 at 2. He further alleges Defendant 23 Alonzo “was indeed aware of the lawsuit” and was the supervisor of Officer Carrillo, the 24 named defendant in the prior lawsuit, at the time. Id. at 3. He further contends Defendant 25 Estrada “was the supervisor who issued the fabricated RVR for an unwritten policy that 26 27 1 Defendants do not challenge Plaintiff’s First Amendment freedom of expression or 28 1 did not exist” and “[t]here is no legal justification that can explain why Defendant [] 2 Estrada chose to issue Plaintiff an unwarranted and fabricated RVR.” Id. 3 After Defendants’ Motion to Dismiss was fully briefed, Plaintiff filed a Motion to 4 Appoint Counsel on September 2, 2025. ECF No. 14. The Court addresses the pending 5 motions in turn. 6 II. REQUEST FOR JUDICIAL NOTICE 7 As a preliminary matter, Defendants request the Court take judicial notice of 8 numerous filings in Plaintiff’s prior lawsuit that settled in 2022—the alleged protected 9 activity that forms the basis of Plaintiff’s First Amendment retaliation claim. ECF No. 10- 10 1 at 12–13. Federal Rule of Evidence 201(d) permits the Court to take judicial notice at 11 any time. A judicially noticed fact must be one not subject to reasonable dispute in that it 12 either: “(1) is generally known within the trial court’s territorial jurisdiction; or (2) can be 13 accurately and readily determined from sources whose accuracy cannot reasonably be 14 questioned.” Fed. R. Evid. 201(b). Courts may take judicial notice of records and filings of 15 other court proceedings. United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (“In 16 particular, a court may take judicial notice of its own records in other cases[.]”). 17 Defendants request the Court take judicial notice of several filings in the prior 18 lawsuit, Ajaelo v. Carrillo, No. 20-cv-2191-WQH-DEB (S.D. Cal.), including the docket, 19 Plaintiff’s complaint, as well as numerous orders and the joint motion to dismiss. See ECF 20 No. 10-1 at 12. The purpose of Defendants’ request is to show Plaintiff “only sued a single 21 party” and the Court “ordered only that single party to reply to the complaint.” Id. at 15. 22 Plaintiff does not oppose or otherwise respond to the request for judicial notice. ECF No. 23 12. Accordingly, the Court GRANTS the request as to the Court’s own records and papers 24 filed with the Court for this limited purpose. 25 / / 26 / / 27 / / 28 / / 1 III. DEFENDANTS’ MOTION TO DISMISS 2 A. Legal Standards 3 1. Rule 12(b)(6) 4 A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint. See 5 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A complaint must allege facts, if 6 accepted as true, “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 7 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 8 Determining whether there is a plausible claim of relief is a “context-specific task that 9 requires the reviewing court to draw on its judicial experience and common sense.” Id. at 10 679. Pleaded facts must “permit the court to infer more than the mere possibility of 11 misconduct[.]” Id. A reviewing court “must accept as true all factual allegations in the 12 complaint and draw all reasonable inferences in favor of the nonmoving party.” Retail 13 Prop. Trust v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938, 945 (9th Cir. 14 2014). However, allegations amounting to “no more than conclusions” are not “entitled to 15 the assumption of truth.” Ashcroft, 556 U.S. at 679, 680. 16 “As a general rule, a district court may not consider any material beyond the 17 pleadings in ruling on a Rule 12(b)(6) motion.” Lee v. City of Los Angeles, 250 F.3d 668, 18 688 (9th Cir. 2001) (citation modified). 19 Filings from pro se plaintiffs “must be held to less stringent standards than formal 20 pleadings drafted by lawyers,” and are “to be liberally construed.” Erickson v. Pardus, 551 21 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). The rule of liberal 22 construction is “particularly important in civil rights cases.” Ferdik v. Bonzelet, 963 F.2d 23 1258, 1261 (9th Cir. 1992). 24 If the complaint fails to survive a Rule 12(b)(6) challenge, “a district court should 25 grant leave to amend even if no request to amend the pleading was made, unless it 26 determines that the pleading could not possibly be cured by the allegation of other facts.” 27 Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (citation omitted); see also Cato v. 28 United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant must be given leave 1 to amend his or her complaint, and some notice of its deficiencies, unless it is absolutely 2 clear that the deficiencies of the complaint could not be cured by amendment.”). 3 2. First Amendment Retaliation 4 “The First Amendment guarantees a prisoner a right to seek redress of grievances 5 from prison authorities and as well as a right of meaningful access to the courts.” Jones v. 6 Williams, 791 F.3d 1023, 1035 (9th Cir. 2015). “Retaliation against prisoners for their 7 exercise of this right is itself a constitutional violation, and prohibited as a matter of ‘clearly 8 established law.’” Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) (citation omitted). 9 “And because purely retaliatory actions taken against a prisoner for having exercised those 10 rights necessarily undermine those protections, such actions violate the Constitution quite 11 apart from any underlying misconduct they are designed to shield.” Rhodes v. Robinson, 12 408 F.3d 559, 567 (9th Cir. 2005). Thus, “[d]eliberate retaliation by state actors against an 13 individual’s exercise of this right is actionable under section 1983.” Soranno's Gasco, Inc. 14 v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989) 15 “Within the prison context, a viable claim of First Amendment retaliation entails 16 five basic elements: (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 18 the inmate’s exercise of his First amendment rights, and (5) the action did not reasonably 19 advance a legitimate correctional goal.” Rhodes, 408 F.3d at 567–68. 20 B. Analysis 21 Defendants challenge the “because of” element for Plaintiff’s First Amendment 22 retaliation claim against both Defendants Alonzo and Estrada. 23 1. Applicable Law 24 “To prevail on a retaliation claim, a plaintiff must show that his protected conduct 25 was the ‘substantial’ or ‘motivating’ factor behind the defendant’s conduct.” Brodheim, 26 584 F.3d at 1271 (quoting Soranno’s Gasco, 874 F.2d at 1314) (citation modified). “[T]he 27 plaintiff must allege a causal connection between the adverse action and the protected 28 conduct.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012). “Because direct 1 evidence of retaliatory intent rarely can be pleaded in a complaint, allegation of a 2 chronology of events from which retaliation can be inferred is sufficient to survive 3 dismissal.” Id. The Ninth Circuit has recognized circumstantial evidence of retaliatory 4 intent or motive may be established by “(1) proximity in time between protected speech 5 and the alleged retaliation; (2) the defendant expressed opposition to the speech; or (3) 6 other evidence that the reasons proffered by the defendant for the adverse action were false 7 and pretextual.” McCollum v. California Dep't of Corr. & Rehab., 647 F.3d 870, 882 (9th 8 Cir. 2011) (citation modified); see also Watison, 668 F.3d at 1114 (finding “allegation[s] 9 of a chronology of events from which retaliation can be inferred is sufficient to survive 10 dismissal”); see Penton v. Hubard, No. 11-cv-518-TLN-KJN-P, 2021 WL 3563375, at *47 11 (E.D. Cal. Aug. 12, 2021), report and recommendation adopted, 2021 WL 4480503 (E.D. 12 Cal. Sept. 30, 2021). 13 Even so, conclusory allegations and “[m]ere speculation that defendants acted out 14 of retaliation is not sufficient.” Wood v. Yordy, 753 F.3d 899, 905 (9th Cir. 2014). District 15 courts often find the “because of” element is not satisfied where the plaintiff does not allege 16 the prison official was aware of the protected activity that forms the basis for the retaliation 17 claim. See, e.g., Wriden v. Arias, No. 24-cv-1240-JLS-LR, 2025 WL 1798294 at *6 (S.D. 18 Cal. June 26, 2025) (“If a defendant does not know of a plaintiff’s protected conduct, it 19 cannot substantially motivate a defendant’s subsequent conduct.”); Joseph v. Clayton, No. 20 19-cv-2139-GPC-RBM, 2020 WL 804863, at *7 (S.D. Cal. Feb. 18, 2020) (finding the 21 plaintiff did not allege the defendant “was aware of that complaint or any inmate grievance 22 he filed while he alleges to have been under [the defendant’s] care”); Gruber v. Allison, 23 No. 22-cv-01486-FLA-MAA, 2023 WL 2627737, at *6 (C.D. Cal. Jan. 13, 2023) (finding 24 the plaintiff failed to allege facts to support the reasonable inference of a causal connection 25 between their allegedly adverse action (transferring the plaintiff) and the plaintiff’s 26 protected conduct (filing prison grievances) where no allegations suggested the defendants 27 knew about the grievance); Richson-Bey v. Moreno, No. 21-cv-01294-SAB-PC, 2022 WL 28 19766891, at *3 (E.D. Cal. Feb. 1, 2022) (finding the plaintiff failed to allege sufficient 1 facts to support a false RVR in retaliation for exercise of the plaintiff’s administrative 2 remedy, where the plaintiff did not allege either he utilized the administrative grievance 3 process or the defendant was aware the plaintiff utilized the administrative remedy 4 process). 5 2. Defendant Alonzo 6 Defendants argue Plaintiff fails to allege they took an adverse action against Plaintiff 7 in 2024 “because of” his prior protected conduct of filing the prior lawsuit. ECF No. 10-1 8 at 13. Specifically, Defendants contend “Plaintiff offers no allegations to show that 9 Defendant Alonzo was aware of the prior case—especially when he was not a party in the 10 lawsuit.” Id. According to Defendants, Plaintiff merely “speculates Defendant Alonzo was 11 the same RVR hearing officer in the underlying RVR in this action and in the underlying 12 RVR in [the prior lawsuit].” Id. at 15. 13 Contrary to Defendants’ argument, Plaintiff pleads more. In his Complaint, Plaintiff 14 specifically alleges Defendant Alonzo was involved in the prior lawsuit, in addition to 15 having adjudicated both the RVR that was the subject of the prior lawsuit2 and the January 16 2024 RVR. ECF No. 1 ¶¶ 12, 33. To the extent Defendants contend Defendant Alonzo did 17 not know (or could not have known) about the prior lawsuit because he is not a named 18 defendant, the argument is not persuasive. Moreover, Plaintiff also specifically alleges the 19 issuance of the 2024 RVR and the resulting disciplinary action were motivated by 20 Plaintiff’s protected activity (i.e., filing the prior lawsuit), which infringes on his right to 21 seek redress and discourages him from further exercising his legal rights. Id. ¶ 35. Taking 22 these allegations together and drawing all reasonable inferences in Plaintiff’s favor, the 23 Court finds Plaintiff alleges sufficient facts to reasonably infer Defendant Alonzo was 24 aware of the prior lawsuit, and by extension, sufficiently alleges the causal connection 25
26 27 2 In support of his opposition, Plaintiff attaches a copy of “Disciplinary Hearing Results” for violation date April 22, 2019 and hearing date April 27, 2019, in which Defendant “M. 28 1 between the allegedly adverse action (unfair adjudication of the 2024 RVR) and Plaintiff’s 2 protected activity (filing of the prior lawsuit). See Watison, 668 F.3d at 1114. 3 Accordingly, the Court finds Plaintiff has plausibly alleged Defendant Alonzo’s 4 adverse action of unfairly adjudicating the 2024 RVR was taken “because of” Plaintiff’s 5 protected activity of filing the prior lawsuit. Accordingly, the Court RECOMMENDS 6 Defendants’ motion be DENIED as to Defendant Alonzo. 7 3. Defendant Estrada 8 Defendants assert “Plaintiff lacks any allegations to connect Defendant Estrada to 9 the prior lawsuit—and thus cannot satisfy the causation retaliation element.” ECF No. 10- 10 1 at 16. 11 When focusing solely on the retaliation claim with the benefit of full briefing and 12 construing the facts alleged in the Complaint liberally and drawing all reasonable 13 inferences in Plaintiff’s favor, Plaintiff has not sufficiently pled a causal connection 14 between Defendant Estrada’s allegedly adverse action of filing a false disciplinary charge 15 in January 2024 and Plaintiff’s protected activity of filing the prior lawsuit in 2020. Unlike 16 Plaintiff’s allegations regarding Defendant Alonzo discussed above, Plaintiff does not 17 allege Defendant Estrada was involved in the prior lawsuit or the RVR that was the subject 18 of the prior lawsuit. Thus, the Complaint lacks a similar factual basis from which the Court 19 can reasonably infer Defendant Estrada was aware of the prior lawsuit. Furthermore, 20 without facts suggesting Defendant Estrada was aware of the prior lawsuit, there is no 21 factual basis to infer Defendant Estrada took the adverse action of fabricating the RVR on 22 January 20, 2024 charging Plaintiff with delaying a peace officer in the performance of 23 duties in retaliation for the filing of the prior lawsuit. See Hammler v. Alvarez, No. 18-cv- 24 326-AJB-WVG, 2019 WL 422575, at *9 (S.D. Cal. Feb. 4, 2019), report and 25 recommendation adopted, 2019 WL 3315567 (S.D. Cal. July 24, 2019) (“The claim against 26 Deis based on the RVR fails for the fundamental reason that there is no allegation that Deis 27 ever knew that Plaintiff filed a grievance against him and Alvarez.”); Penesa v. California 28 Inst. for Women, No. 16-cv-1878-DMG-RAO, 2018 WL 4162485, at *9 (C.D. Cal. June 1 22, 2018), report and recommendation adopted, 2018 WL 4156608 (C.D. Cal. Aug. 28, 2 2018) (“There are no allegations to support that Defendant Martel was aware of this lawsuit 3 such that any adverse actions would have been in retaliation of Plaintiff's filing and pursuit 4 of this lawsuit.”). 5 Plaintiff has also not sufficiently alleged other circumstantial evidence of retaliatory 6 intent from which the Court can reasonably infer the requisite casual connection. See 7 McCollum, 647 F.3d at 882; Watison, 668 F.3d at 1114. First, with respect to “proximity 8 in time between protected [activity] and the alleged retaliation[,]” McCollum, 647 F.3d at 9 882, Plaintiff alleges he settled his prior lawsuit in December 2022 and then over a year 10 later, in January 2024, Defendant Estrada filed false disciplinary charges. As more than a 11 year separates the two events and Plaintiff alleges no other facts to establish a causal link 12 between them, a reasonable inference of retaliation cannot be inferred from the timing 13 alone. See Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995) (finding insufficient evidence 14 to support an inference of retaliatory intent based on timing); O’Brien v. Gularte, No. 18- 15 cv-980-BAS-MDD, 2019 WL 77112, at *3 (S.D. Cal. Jan. 2, 2019) (“Timing alone, 16 however, is generally not enough to support an inference that prison officials took an 17 adverse action against a prisoner in retaliation for the prisoner’s participation in protected 18 conduct.”); McCollum, 647 F.3d at 882 (citing Vasquez v. Cnty. of Los Angeles, 349 F.3d 19 634, 646 (9th Cir. 2004) (referencing a thirteen-month lapse is too long to support an 20 inference of causality)). 21 Nor does Plaintiff allege Defendant Estrada expressed opposition to the prior 22 lawsuit. See McCollum, 647 F.3d at 882. 23 The Complaint also lacks other sufficient factual allegations from which retaliation 24 by Defendant Estrada can be inferred. See id. The Court once again finds the contrast 25 between Plaintiff’s statements in his opposition as to Defendant Alonzo and as to 26 Defendant Estrada telling: despite Plaintiff’s assertion the prior lawsuit “had a cultural 27 effect on Centinela State Prison on how inmates are screened for cellmate compatibility” 28 and belief Defendant Alonzo likely would have received in-service training in the 1 aftermath of his prior lawsuit, Plaintiff makes no such allegation as to Defendant Estrada. 2 See ECF No. 12 at 3–4. Rather, in his opposition, Plaintiff reiterates Defendant Estrada is 3 “the supervisor who issued the fabricated RVR for an unwritten policy that does not exist” 4 and further claims “[t]here is no legal justification that can explain why Defendant [] 5 Estrada chose to issue Plaintiff an unwarranted and fabricated RVR.” ECF No. 12 at 3. 6 Plaintiff also posits: “[t]he question becomes whether he was instructed to pull Plaintiff 7 over and issue an unwarranted RVR? Why was he instructed? Why was Plaintiff targeted?” 8 Id. While these allegations may be relevant to establishing other circumstantial evidence 9 “the reasons proffered by [Defendant Estrada] for the adverse [] action were false and 10 pretextual,” see McCollum, 647 F.3d at 882, no such factual allegations are alleged in the 11 Complaint. See ECF No. 1; see Lee, 250 F. 3d at 688 (“As a general rule, a district court 12 may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.”). 13 Thus, while Plaintiff’s statements in his opposition demonstrate he could allege additional 14 facts in an amended complaint, the Complaint lacks sufficient factual allegations from 15 which retaliation can be inferred as to Defendant Estrada. 16 Accordingly, the Court finds Plaintiff has not alleged sufficient facts in the 17 Complaint to support a causal connection between Defendant Estrada’s alleged adverse 18 action (i.e., filing false disciplinary charges) because of Plaintiff’s protected activity of 19 filing the prior lawsuit. Accordingly, the Court RECOMMENDS Defendants’ motion be 20 GRANTED as to Defendant Estrada. 21 4. Leave to Amend 22 “A pro se litigant must be given leave to amend his or her complaint, and some notice 23 of its deficiencies, unless it is absolutely clear that the deficiencies of the complaint could 24 not be cured by amendment.” Cato, 70 F.3d at 1106. The Ninth Circuit has instructed 25 district courts to “provide a pro se litigant with notice of the deficiencies” in the complaint 26 “to ensure that the litigant uses the opportunity to amend effectively. Eldridge v. Block, 27 832 F.2d 1132, 1136 (9th Cir. 1987) (citation omitted). “While a statement of deficiencies 28 need not provide great detail or require district courts to act as legal advisors to pro se 1 plaintiffs, district courts must at least draft a few sentences explaining the deficiencies.” 2 Id. (citation omitted). 3 As discussed above, Plaintiff fails to allege any facts to support a causal connection 4 between Defendant Estrada’s allegedly adverse action of filing false disciplinary charges 5 against Plaintiff in January 2024 and Plaintiff’s protected activity of filing the prior lawsuit 6 that settled in December 2022. In order for Plaintiff’s amended complaint to survive at the 7 pleading stage against Defendant Estrada, Plaintiff must allege a causal connection 8 between the allegedly adverse action of filing false disciplinary charges and the protected 9 activity of filing of his prior lawsuit. See Watison, 668 F.3d at 1114. For example, Plaintiff 10 could plead Defendant Estrada knew Plaintiff engaged in the protected activity of filing the 11 prior lawsuit, how Defendant Estrada knew, and thereafter did something that led Plaintiff 12 to infer Defendant Estrada was acting in retaliation for Plaintiff’s protected activity. See, 13 e.g., Miller v. McEwen, No. 11-cv-2333-JLS-WVG, 2013 WL 4545592, at *10 (S.D. Cal. 14 Apr. 19, 2013), report and recommendation adopted in part, No. 11-CV-2333 JLS WVG, 15 2013 WL 4544516 (S.D. Cal. Aug. 26, 2013); Gorum v. Calderwood, No. 15-cv-65-APG- 16 GWF, 2015 WL 6438292, at *2 (D. Nev. Oct. 21, 2015) (finding the plaintiff “established 17 the link between the retaliatory action and the lawsuit through his quoting of Defendant 18 saying ‘you’ll know next time not to file no law suits’”). 19 Because Plaintiff may be able to cure the deficiencies of the Complaint identified 20 above, the Court RECOMMENDS leave to amend his complaint be GRANTED as to 21 Plaintiff’s First Amendment retaliation claim against Defendant Estrada. 22 C. Conclusion and Recommendation 23 The Court submits this Report and Recommendation to United States District Judge 24 Anthony J. Battaglia under 28 U.S.C. § 636(b) and Civil Local Rules 72.1(c) and 72.3 of 25 the United States District Court for the Southern District of California. For the reasons set 26 forth above, IT IS HEREBY RECOMMENDED the District Judge issue an Order: 27 1. APPROVING and ADOPTING this Report and Recommendation; 28 1 2. GRANTING IN PART and DENYING IN PART Defendants’ Motion to 2 Dismiss Plaintiff’s First Amendment retaliation claim as follows: 3 a. Defendants’ motion be DENIED as to Defendant Alonzo 4 b. Defendant’s motion be GRANTED as to Defendant Estrada. 5 3. GRANTING Plaintiff leave to file a First Amended Complaint to cure the 6 deficiencies regarding Plaintiff’s First Amendment retaliation claim against 7 Defendant Estrada. 8 IT IS HEREBY ORDERED any party to this action may file written objections 9 with the Court and serve a copy on all parties no later than January 26, 2026. The 10 document should be captioned “Objections to Report and Recommendation.” 11 IT IS FURTHER ORDERED any Reply to the Objections shall be filed with the 12 Court and served on all parties no later than fourteen (14) days after being served with 13 written objections. 14 / / 15 / / 16 / / 17 / / 18 / / 19 / / 20 / / 21 / / 22 / / 23 / / 24 / / 25 / / 26 / / 27 / / 28 / / 1 IV. PLAINTIFF’S MOTION TO APPOINT COUNSEL 2 The Court turns to Plaintiff’s pending motion to appoint counsel. ECF No. 14. 3 A. Legal Standard 4 There is no Constitutional or statutory right to counsel in a civil proceeding. Aldabe 5 v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980). However, a district court may appoint 6 counsel for indigent civil litigants under “exceptional circumstances.” Palmer v. Valdez, 7 560 F.3d 965, 970 (9th Cir. 2009). When considering whether exceptional circumstances 8 exist, courts consider a plaintiff’s likelihood of succeeding on the merits of the case in 9 conjunction with the plaintiff’s ability to comprehend and “articulate” the relevant legal 10 issues. Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). These factors are “viewed 11 together” and given equal consideration. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th 12 Cir. 1986). It is the plaintiff’s burden to demonstrate exceptional circumstances exist. 13 Palmer, 560 F.3d at 968. 14 B. Analysis 15 Plaintiff asserts six grounds to support his request for counsel: (1) he is unable to 16 afford counsel and believes he is likely to succeed at trial; (2) his incarceration limits his 17 ability to investigate and litigate the matter; (3) this case involves complex issues that 18 require expert testimony to explain the cultural significance of the headcover/hair product 19 at issue; (4) he has limited knowledge of federal civil law; (5) Centinela State Prison staff 20 has recently failed to process his mail; and (6) he has made repeated efforts to obtain an 21 attorney. ECF No. 14. In support of his motion, he attaches Exhibits A through C, which 22 include (A) a copy of his grievance alleging the mailroom refused to process his outgoing 23 mail, (B) a copy of legal mail opened in error, and (C) numerous correspondence with 24 attorneys to obtain counsel. ECF No. 14-1. 25 Plaintiff has not shown the “exceptional circumstances” to warrant appointment of 26 counsel at this time. Though Plaintiff contends his case is of “great merit” and likely to 27 succeed at trial, the case is in its early stage, as the pleadings are not yet final and factual 28 discovery has not commenced. Accordingly, it is too soon to tell whether Plaintiff is likely 1 to succeed on the merits, and Plaintiff likely cannot demonstrate this factor weighs in his 2 favor without further factual development. See Riley v. Vizcarra, No. 18-cv-2911-JAH- 3 AHG, 2020 WL 4336271, at *3 (S.D. Cal. July 28, 2020) (“[A]t this early stage of the case, 4 when the parties have not yet engaged in discovery and proffered evidence to the Court in 5 support of their claims and defenses, the Court cannot find that Plaintiff is likely to succeed 6 on the merits.”). 7 In addition, Plaintiff has demonstrated an ability to comprehend and express relevant 8 legal issues regarding his claims for violations of the First and Fourteenth Amendments. 9 Plaintiff has filed a Complaint that sufficiently alleges numerous claims against Defendants 10 Estrada and Alonzo, a motion for leave to proceed in forma pauperis which was 11 subsequently granted, a notice of his intent to proceed with claims against Defendants 12 Estrada and Alonzo, an opposition to Defendants’ motion to dismiss, and the motion to 13 appoint counsel currently before this Court. ECF Nos. 1, 2, 5, 12, 14. Nothing in these 14 filings suggests Plaintiff is incapable of articulating the factual or legal basis for his First 15 and Fourteenth Amendment claims, which appear relatively straightforward. To the 16 contrary, Plaintiff’s filings thus far have been articulate and focused. 17 Though Plaintiff states his claims are complex requiring expert testimony, there are 18 no apparent complexities necessitating expert testimony at this time. Plaintiff’s limited 19 knowledge of federal civil law also does not amount to exceptional circumstances to justify 20 appointment of counsel. Further, while Plaintiff may be able to better investigate his claims 21 or litigate his complaint with appointed counsel, this, without more, does not establish the 22 extraordinary circumstance to justify appointment of counsel. See Wilborn, 789 F.2d at 23 1331 (recognizing most cases “require development of further facts during litigation and a 24 pro se litigant will seldom be in a position to investigate easily the facts necessary to 25 support the case”) (italics omitted); Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) 26 (while a pro se inmate might fare better with counsel during discovery, the relevant test 27 was “because of the complexity of the claims he was unable to articulate his positions”). 28 Finally, Plaintiff does not establish exceptional circumstances based on the alleged issues 1 || with processing his mail. Based on the supporting documentation filed as Exhibit A, the 2 ||issue was corrected on May 6, 2025, when Plaintiff's mail was processed. ECF No. 14-1 3 4. Plaintiff does not assert any delay he experienced has or will impact his likelihood of 4 ||success on the merits or his ability to articulate his claims; nor would the assistance of 5 || counsel have a substantial effect on the internal processing of legal mail by prison officials. 6 Cavazos v. Garza, No. 12-cv-3087-MMA-MDD, 2013 WL 5775128, at *2 (S.D. Cal. 7 ||Oct. 25, 2013); Rogers v. King Cnty., No. 23-cv-01034-DGE-GIJL, 2024 WL 4336128, at 8 ||*1—-2 (W.D. Wash. Sept. 26, 2024). 9 C. Conclusion 10 In sum, the Court finds Plaintiff has not demonstrated he is likely to prevail on the 11 || merits at this early stage of the case; nor has he shown he is unable to articulate his position 12 because of the complexity of his claims. Accordingly, the Court finds Plaintiff has not met 13 burden of demonstrating extraordinary circumstances to justify the appointment of 14 || counsel at this time. Plaintiff's motion is DENIED. 15 IT IS SO ORDERED. 16 ||Dated: January 9, 2026 Whole M. otra 17 HON. MICHELLE M. PETTIT ig United States Magistrate Judge
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