1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSE MONTALVO, Case No.: 3:19-cv-00363-CAB-JLB CDCR #P-60879, 12 ORDER: Plaintiff, 13 vs. GRANTING DEFENDANTS’ 14 MOTION TO DISMISS
15 PLAINTIFF’S FIRST AMENDED RALPH DIAZ, CDCR Secretary; COMPLAINT [ECF No. 18] 16 KATHLEEN ALLISON, CDCR Director; 17 ROSEMARY NDOH, CDCR Avenal State Prison Warden; and PATRICK 18 COVELLO, RJ Donovan State Prison 19 Warden, 20 Defendants. 21 22 Jose Montalvo, (“Plaintiff”), a parolee formerly incarcerated at Avenal State Prison, 23 Richard J. Donovan Correctional Facility (“RJD”), and California City Correctional 24 Facility is proceeding pro se in this civil rights action pursuant to 42 U.S.C. Section 1983. 25 (ECF No. 6, FAC; see also ECF No. 10 (notice of change of address indicating Plaintiff is 26 no longer incarcerated).) Plaintiff alleges that Defendants, officials from the California 27 Department of Corrections and Rehabilitation (“CDCR”) and the wardens of Avenal and 28 RJD, violated Plaintiff’s Eighth Amendment rights by integrating sensitive needs and 1 general population prisoners into merged yards, referred to by the CDCR as “non- 2 designated programming facilities.” (See FAC at 3-4.) Plaintiff, who was formerly 3 classified as a general population inmate, argues that this policy change exposed him to an 4 unreasonable risk of physical violence at the hands of sensitive needs prisoners, who 5 Plaintiff alleges attacked him on several occasions in merged yards at RJD in early 2019. 6 (See id. at 3-5.) 7 Currently before the Court is Defendants’ Motion to Dismiss Plaintiff’s First 8 Amended Complaint. (See ECF No. 18.) Defendants assert that Plaintiff fails to state a 9 claim upon which relief may be granted or, alternatively, that Plaintiff’s claims are barred 10 by qualified immunity. (See generally id.) Plaintiff has filed an Opposition and 11 Defendants have filed a Reply. (ECF Nos. 23, 24.) Having carefully considered 12 Defendants’ Motion, Plaintiff’s First Amended Complaint, and his Opposition, the Court 13 GRANTS Defendant’s Motion to Dismiss Plaintiff’s First Amended Complaint with leave 14 to amend. 15 I. Plaintiff’s Allegations 16 Plaintiff claims that on December 12, 2017, Defendant Kathleen Allison, the 17 Director of the CDCR’s Division of Adult Institutions, authored a “department 18 memorandum” announcing an “expansion of the merging of the SNY (Sensitive Needs 19 Yard/previously called Protective Custody) prisoners with General Population Prisoners in 20 all level 1 and 2 yards.” (FAC at 3.) Defendants’ Motion attaches this memorandum, 21 which is incorporated by reference in Plaintiff’s pleadings.1 (See ECF No. 18, at Ex. 1.) 22 The memorandum states that these changes were being adopted “to provide robust 23 programming to all inmates and to safely house individuals in the lowest level possible.” 24 25 1 Because this document is incorporated by reference in Plaintiff’s First Amended Complaint, see FAC at 26 3, the Court may consider it in deciding Defendants’ Motion. See Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (explaining that at the motion to dismiss stage courts may consider “documents whose 27 contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to [the plaintiff’s] pleadings”). The application of the incorporation by reference 28 1 (See id.) With this goal in mind, the memorandum explains that “CDCR’s Level I and 2 Level II housing facilities will slowly be transitioned into non-designated [programming 3 facilities], as they currently house a large inmate population of programming inmates [sic]. 4 The focus of [programming facilities] is to provide an environment for inmates 5 demonstrating positive programming efforts and a desire not to get involved in the 6 destructive cycles of violence.” (Id.) On September 10, 2018, Plaintiff alleges that Allison 7 and Defendant Ralph Diaz, the Secretary of the CDCR, authored a different “CDCR 8 departmental memorandum which sets forth the schedule for said merging [of] the yards,” 9 and explained that “all such facilities will be merged.” (FAC at 3.) According to Plaintiff, 10 “[i]t has been long understood by both the Courts and CDCR officials that [sensitive needs] 11 prisoners cannot safely merge with General Population prisoners,” and that when such 12 mergers have taken place, “there ha[ve] been well documented incidents of violence, 13 primarily as the result of [sensitive needs] prisoners attacking [general population] 14 prisoners forcefully placed on the yard with them.” (See id. at 3-4.) 15 In early 2019, Plaintiff was transferred to RJD and shortly thereafter was “cleared 16 by the Captain for release to the minimum yard (M yard), level one, which is” a non- 17 designated programming facility, or “merged yard populated by [sensitive needs] 18 prisoners . . . .” (Id. at 4.) That day, February 11, 2019, Plaintiff alleges that he was 19 attacked by a number of sensitive needs inmates, and “Plaintiff suffered a broken nose, 20 contusions, abrasions and slices on his face and neck.” (See id.) After 48 hours in 21 administrative segregation “‘for his own protection,’” Plaintiff was taken back to the M 22 Yard, “which led to another physical altercation between Plaintiff and a [non-designated 23 programming facility/sensitive needs yard] prisoner.” (Id. (internal quotation marks in 24 original).) Plaintiff was returned to administrative segregation after the second incident, 25 before being “taken to committee” nine days later. (See id.) During the committee meeting 26 a counselor and captain recommended that Plaintiff be transferred to a general population 27 yard, “as he could not safely program on a[] [non-designated programming facility] yard.” 28 (Id.) Plaintiff was not immediately transferred to a general population yard, however, and 1 he was “taken to committee again,” this time before Defendant Patrick Covello, the Warden 2 of RJD. (Id.) Covello asked Plaintiff “‘what would happen if I put you on E yard (level 2 3 [non-designated programming facility] yard)?’” (Id. at 4-5.) When Plaintiff responded 4 that he was “‘a General Population inmate,’” Covello “cut the Plaintiff off and snapped 5 and said ‘send him, get him out of here[.]’” (Id. at 5 (internal quotations marks in original).) 6 Covello then asked Plaintiff “‘how much time do you got to lose?’ stating: ‘We have level 7 three and four yards where you’ll go next[.]’” (Id.) Subsequently, Plaintiff was taken to E 8 Yard, a non-designated programming facility. (See id.) Once there, Plaintiff was 9 “immediately involved in another altercation” with a sensitive needs prisoner, and then 10 “jumped by the other two [sensitive needs] inmates simultaneously.” (See id. at 5.) 11 Plaintiff alleges that Defendants, in both their individual and official capacities, 12 violated the Eighth Amendment by acting with deliberate indifference to Plaintiff’s safety. 13 (See id. at 3, 5.) Plaintiff seeks declaratory and injunctive relief enjoining Defendants 14 “from merging the [sensitive needs yard] and [general population] prisoners” into non- 15 designated programming facilities, and declaring that “Defendants actions . . . violate[d] 16 the Plaintiff’s Eight[h] Amendment right[s] . . . and constitute[d] deliberate indifference to 17 Plaintiff’s health and safety.” (See id. at 6.) Additionally, Plaintiff seeks “$75,000 [in] 18 compensatory damages from each Defendant and $100,000 in punitive damages from each 19 Defendant” as well as attorneys’ fees and costs. (See id.) 20 II. Legal Standard 21 Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss 22 on the grounds that a complaint “fail[s] to state a claim upon which relief can be granted.” 23 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal 24 sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001); Bryan v. City 25 of Carlsbad, 207 F. Supp. 3d 1107, 1114 (S.D. Cal. Mar. 20, 2018). 26 Because Rule 12(b)(6) focuses on the “sufficiency” of a claim rather than the claim’s 27 substantive merits, “a court may [ordinarily] look only at the face of the complaint to decide 28 a motion to dismiss,” Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th 1 Cir. 2002), including the exhibits attached to it. See Fed. R. Civ. P. 10(c) (“A copy of a 2 written instrument that is an exhibit to a pleading is a part of the pleading for all 3 purposes.”); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 4 n.19 (9th Cir. 1990) (citing Amfac Mortg. Corp. v. Ariz. Mall of Tempe, Inc., 583 F.2d 426 5 (9th Cir. 1978) (“[M]aterial which is properly submitted as part of the complaint may be 6 considered” in ruling on a Rule 12(b)(6) motion to dismiss.) However, exhibits that 7 contradict the claims in a complaint may fatally undermine the complaint’s allegations. See 8 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (a plaintiff can “plead 9 himself out of a claim by including . . . details contrary to his claims.”) (citing Steckman v. 10 Hart Brewing, Inc., 143 F.3d 1293, 1295-96 (9th Cir. 1998) (courts “are not required to 11 accept as true conclusory allegations which are contradicted by documents referred to in 12 the complaint.”))); see also Nat’l Assoc. for the Advancement of Psychoanalysis v. Cal. Bd. 13 of Psychology, 228 F.3d 1043, 1049 (9th Cir. 2000) (courts “may consider facts contained 14 in documents attached to the complaint” to determining whether the complaint states a 15 claim for relief). 16 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 17 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 18 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); 19 Villa v. Maricopa Cnty., 865 F.3d 1224, 1228-29 (9th Cir. 2017). A claim is facially 20 plausible “when the plaintiff pleads factual content that allows the court to draw the 21 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 22 U.S. at 678. Plausibility requires pleading facts, as opposed to conclusory allegations or 23 the “formulaic recitation of the elements of a cause of action,” Twombly, 550 U.S. at 555, 24 which rise above the mere conceivability or possibility of unlawful conduct. Iqbal, 556 25 U.S. at 678-79; Somers v. Apple, Inc., 729 F.3d 953, 959-60 (9th Cir. 2013). “Threadbare 26 recitals of the elements of a cause of action, supported by mere conclusory statements, do 27 not suffice.” Iqbal, 556 U.S. at 678. While a pleading “does not require ‘detailed factual 28 allegations,’” Rule 8 nevertheless “demands more than an unadorned, the defendant- 1 unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 2 555). 3 Therefore, “[f]actual allegations must be enough to raise a right to relief above the 4 speculative level.” Twombly, 550 U.S. at 555. “Where a complaint pleads facts that are 5 merely consistent with a defendant’s liability, it stops short of the line between possibility 6 and plausibility of entitlement to relief.” Iqbal, 556 U.S. at 678 (citation and quotes 7 omitted); accord Lacey v. Maricopa Cnty., 693 F.3d 896, 911 (9th Cir. 2012) (en banc). 8 “In sum, for a complaint to survive a motion to dismiss, the non-conclusory ‘factual 9 content,’ and reasonable inferences [drawn] from that content, must be plausibly suggestive 10 of a claim entitling the plaintiff to relief.” Moss v. United States Secret Serv., 572 F.3d 962, 11 969 (9th Cir. 2009) (quoting Iqbal, 556 U.S. at 678). 12 III. Discussion 13 To state a claim under 42 U.S.C. Section 1983, a plaintiff must allege two essential 14 elements: (1) that a right secured by the Constitution or laws of the United States was 15 violated, and (2) that the alleged violation was committed by a person acting under the 16 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030, 17 1035-36 (9th Cir. 2015). 18 Plaintiff focuses his claims on alleged violations of the Eighth Amendment, 19 specifically CDCR and prison officials’ “failure to protect” Plaintiff from the danger he 20 argues is inherent in merging sensitive needs and general population inmates. (See FAC 21 at 3-5.) “‘[P]rison officials have a duty . . . to protect prisoners from violence at the hands 22 of other prisoners.’” Farmer v. Brennan, 511 U.S. 825, 833 (1994) (quoting Cortes- 23 Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir. 1988)). “The failure of prison 24 officials to protect inmates from attacks by other inmates may rise to the level of an Eighth 25 Amendment violation when: (1) the deprivation is ‘objectively, sufficiently serious’ and 26 (2) the prison officials had a ‘sufficiently culpable state of mind,’ acting with deliberate 27 indifference.” Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005) (quoting Farmer, 28 511 U.S. at 834). The second prong of this test is subjective, and “the official must both 1 be aware of facts from which the inference could be drawn that a substantial risk of serious 2 harm exists, and he must also draw the inference.” See Farmer, 511 U.S. at 837. 3 “‘Deliberate indifference entails something more than mere negligence but is satisfied by 4 something less than acts or omissions for the very purpose of causing harm or with 5 knowledge that harm will result.’” Hearns, 413 F.3d at 1040 (quoting Farmer, 511 U.S. 6 at 835) (internal alterations omitted)). “[A]n official’s failure to alleviate a significant risk 7 that he should have perceived but did not, while no cause for commendation, cannot under 8 [the Supreme Court’s] cases be condemned as the infliction of punishment.” Farmer, 511 9 U.S. at 838. 10 A. Defendant Ndoh 11 Aside from identifying Defendant Rosemary Ndoh as “the current Warden at Avenal 12 State Prison,” who is “responsible for the operations of [the prison] and for the welfare of 13 all the inmates of that prison,” Plaintiff’s First Amended Complaint contains no allegations 14 that Defendant Ndoh violated Plaintiff’s constitutional rights. (See FAC at 2.) Plaintiff 15 concedes this is grounds for dismissal, (see ECF No. 23, at 5), and the Court agrees. See 16 Iqbal, 556 U.S. at 678. Defendants’ Motion to Dismiss the claim against Defendant Ndoh 17 is GRANTED. 18 B. Defendants Diaz and Allison 19 The First Amended Complaint alleges that Defendant Allison authored the 20 December 12, 2017 memorandum “announcing the expansion of the merging of [sensitive 21 needs yard] prisoners with the General Population Prisoners in all level 1 and 2 yards.” 22 (See FAC at 3.) Additionally, Plaintiff contends that Defendants Diaz and Allison wrote a 23 subsequent “CDCR departmental memorandum which sets forth the schedule for said 24 merging the yards.” (See id.) Plaintiff asserts that these actions were deliberately 25 indifferent to the safety of Plaintiff and other general population inmates because “[i]t has 26 been long understood by both the Courts and CDCR officials that [sensitive needs] 27 prisoners cannot safely merge with General Population prisoners. Each and every time 28 these merge[r]s have taken place intentionally or unintentionally, there ha[ve] been well 1 documented incidents of violence, primarily as the result of the [sensitive needs] prisoners 2 attacking [general population] prisoners forcefully placed on the yard with them.” (See id. 3 at 3-4.) 4 Defendants argue that these allegations are conclusory, and therefore fail to state a 5 claim of deliberate indifference on the part of Diaz or Allison. (See ECF No. 18, at 11-12.) 6 This argument takes two forms. First, Defendants contend that Plaintiff’s allegations, taken 7 as true, do not sufficiently allege “that it would be obvious to prison officials that creating 8 [non-designated programming facilities] would pose a substantial risk of serious harm, that 9 they had no reasonable justification for creating such yards, or that they failed to respond 10 reasonably to any possible risk.” (See id. at 13.) Second, Defendants ask that the Court 11 apply the “incorporation by reference” doctrine, and review the contents of Diaz and 12 Allison’s December 12, 2017 memo explaining the planned expansion of merged yards. 13 (See id. at 13-15.) Defendants argue that the memo “refutes any claim [that] Defendants 14 were deliberately indifferent to inmate safety and shows just the opposite—that Defendants 15 carefully rolled out a new program to low-security-level, programming inmates to help 16 them break the cycle of violence and to prepare them for re-entry into society by providing 17 greater opportunities to program.” (See id. at 15.) 18 Plaintiff’s response to these arguments is largely confined to the Declaration of 19 Ruthie Montalvo, which Plaintiff attaches to his opposition brief. Ms. Montalvo states that 20 she is the “former Inmate Family Council Chairperson at Avenal State Prison . . . .” (See 21 ECF No. 23, at 9.) In that capacity, Ms. Montalvo learned of the planned merger of 22 sensitive needs and general population prisoners into non-designated programming 23 facilities through a meeting with an official at Avenal in March 2018. (See id.) Montalvo 24 then recounts, based “[u]pon further research,” the lengthy history of the CDCR’s efforts 25 to create and expand non-designated programming facilities, citing to numerous 26 memoranda authored by Defendants Diaz, Allison, or other non-party CDCR officials 27 about the details of CDCR’s work. (See id. at 10-13.) Montalvo also discusses numerous 28 riots, rule violations, and other violent incidents associated with the implementation of non- 1 designated programming facilities. (See id. at 13-16.) Notably, Montalvo describes two 2 meetings with Defendant Diaz in which she and other family members and prison 3 advocates shared stories about violence and other risks in non-designated programming 4 facilities. (See id. at 17-18). Although Diaz allegedly stated at the conclusion of the first 5 meeting that the efforts to merge yards would be “on a ‘hiatus,’” Montalvo asserts “that 6 was a lie as the implementation and violence connected to [non-designated programming 7 facilities] continued.” (See id. at 18.) At the second meeting, family members also pointed 8 to, among other things, a Facebook group including CDCR staff who “speak[] proudly of 9 the riots or act[s] of violence caused by the bloodshed of [non-designated programming 10 facilities] . . . .” (See id.) 11 Plaintiff argues that Defendants “have . . . submitted documentary exhibits in 12 [support of their motion] which the court must now ignore . . . or convert their motion into 13 a motion for summary judgment . . . .” (See id. at 6 (citing Fed. R. Civ. P. 12(d)).) Plaintiff 14 is correct that “[a]s a general rule, ‘a district court may not consider any material beyond 15 the pleadings in ruling on a Rule 12(b)(6) motion.’” Lee v. City of Los Angeles, 250 F.3d 16 668, 689 (9th Cir. 2001). Courts may, however, “consider materials incorporated into the 17 complaint or matters of public record.” Coto Settlement v. Eiseneberg, 593 F.3d 1031, 18 1038 (9th Cir. 2010) (citing Intri-Plex Techs., Inc. v. Crest Grp., Inc., 499 F.3d 1048, 1052 19 (9th Cir. 2007); Fed. R. Civ. P. 12(d)). Although “the mere mention of the existence of a 20 document” does not incorporate it by reference, the Ninth Circuit has explained that a 21 document is incorporated by reference if “the complaint necessarily relies upon a document 22 or the contents of the document are alleged in a complaint, the document’s authenticity is 23 not in question and there are no disputed issues as to the document’s relevance.” See id. 24 (collecting cases). If a document is incorporated by reference in the complaint, a court may 25 consider that document in ruling on a motion to dismiss without first converting the motion 26 to dismiss into a motion for summary judgment under Rule 12(d). See, e.g., Superior 27 Consulting Servs., Inc. v. Steeves-Kiss, 786 F. App’x 648, 651 (9th Cir. 2019). 28 Defendant Allison’s December 12, 2017 departmental memorandum regarding the 1 expansion of non-designated programming facilities is incorporated by reference in 2 Plaintiff’s First Amended Complaint and is appropriately considered in ruling on 3 Defendants’ Motion to Dismiss. The contents of the memorandum are alleged at length in 4 Plaintiff’s pleading, which uses the memorandum to demonstrate the CDCR’s plans to 5 expand non-designated programming facilities and the involvement of Defendant Allison 6 in those efforts. (See FAC at 3.) The parties also clearly agree that the memorandum is 7 relevant to the issues in the case, and Plaintiff does not dispute that the copy attached to 8 Defendants’ Motion is authentic. As a result, the Court need not convert Defendants’ 9 Motion to Dismiss into a motion for summary judgment in order to consider the contents 10 of the memorandum. See Superior Consulting, 786 F. App’x at 651. The same is not true, 11 however, of the Montalvo Declaration attached to Plaintiff’s opposition brief, which 12 recounts numerous matters outside the scope of Plaintiff’s First Amended Complaint. 13 “Courts regularly decline to consider declarations and exhibits submitted in support of or 14 opposition to a motion to dismiss . . . if they constitute evidence not referenced in the 15 complaint or not a proper subject of judicial notice.” See Gerritsen v. Warner Bros. Entm’t, 16 112 F. Supp. 3d 1011, 1021 (C.D. Cal. 2015). Accordingly, the Court would be required 17 to convert Defendants’ Motion into a motion for summary judgment in order to consider 18 the Montalvo Declaration. The Court declines to do so, however, because at this stage the 19 parties have not had “a reasonable opportunity to present all the material that is pertinent 20 to [a summary judgment] motion.” See Fed. R. Civ. P. 12(d). 21 Thus, in deciding Defendants’ motion the Court will disregard the Montalvo 22 Declaration and consider only the allegations in Plaintiff’s First Amended Complaint, the 23 parties’ briefs, and the December 12, 2017 memorandum attached to Defendants’ Motion. 24 With these limitations in mind, Plaintiff’s claims against Defendants Diaz and Allison must 25 be dismissed for failure adequately to allege deliberate indifference by either individual. 26 To understand this conclusion, however, it is useful first to review the governing law on 27 deliberate indifference claims and the treatment of similar claims by other district courts. 28 In order to show deliberate indifference on the part of Defendants, Plaintiff must 1 satisfy a “two part inquiry.” Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2011). First, 2 Plaintiff must show that “prison officials were aware of a ‘substantial risk of serious harm’ 3 to an inmates health or safety.’” Id. (quoting Farmer, 511 U.S. at 837). This can be done 4 “if the inmate shows that the risk posed by the deprivation is obvious.” Id. (citing Farmer, 5 511 U.S. at 842 (“[A] factfinder may conclude that a prison official knew of a substantial 6 risk [to a prisoner’s health] from the very fact that the risk was obvious.”)). Whether a risk 7 is “obvious” is determined “in light of reason and the basic general knowledge that a prison 8 official may be presumed to have obtained regarding the type of deprivation involved. See 9 id. at 1151. “Second, the inmate must show that the prison officials had no ‘reasonable’ 10 justification for the deprivation, in spite of that risk.” Id. at 1150-51 (citing Farmer, 511 11 U.S. at 844). 12 Several other courts have confronted similar cases challenging CDCR’s expansion 13 of non-designated programming facilities. As far as the Court can discern, these cases have 14 not progressed much beyond the initial screening stage, and nearly all have denied efforts 15 by inmates to obtain a preliminary injunction and temporary restraining order blocking the 16 merger of sensitive needs and general population inmates into non-designated 17 programming facilities. See, e.g., Haynes v. Diaz, No. 1:19-cv-00813-EPG (PC), 2020 WL 18 2857947, at *1-3 (E.D. Cal. Mar. 4, 2020) (denying request for temporary restraining order 19 and motion for preliminary injunction blocking “defendants from merging the [sensitive 20 needs] and [general population] inmates . . . .”); Borjas v. Diaz, No. 19-cv-02038-PJH, 21 2019 WL 1787593, at *2 (N.D. Cal. Apr. 24, 2019) (same); Hernandez v. Diaz, No. 19-cv- 22 2135-SI, 2019 WL 1779580, at *2 (N.D. Cal. Apr. 23, 2019) (denying motion for 23 temporary restraining order or preliminary injunction “to prevent the merger of the 24 different prisoner populations.”); Saucedo v. Diaz, No. 19-cv-2032-SI, 2019 WL 1756541, 25 at *2 (N.D. Cal. Apr. 19, 2019). Several of these cases were dismissed for failure to state 26 a claim during screening under 28 U.S.C. Sections 1915 and 1915A, or for procedural 27 reasons like failure to prosecute or to exhaust administrative remedies. See, e.g., Mendez 28 v. Diaz, 1:19-cv-01759-NONE-BAM (PC), 2020 WL 1974231, at *4-6 (E.D. Cal. Apr. 24, 1 2020) (dismissing for failure to state an Eighth Amendment claim, in part because plaintiff 2 did not allege “that each of the Defendants” including Diaz and Allison “knew of and 3 disregarded an excessive risk of serious harm to Plaintiff’s health or safety” (citation 4 omitted)); Haynes v. Diaz, No. 1:19-cv-00813-NONE-EPG (PC), 2020 WL 2857948 (E.D. 5 Cal. Apr. 21, 2020) (dismissing for failure to prosecute after plaintiff failed timely to file a 6 first amended complaint in response to initial screening order dismissing for failure to state 7 a claim); Perez v. Diaz, 2:19-cv-1295 TLN KJN P, 2019 WL 4166812, at *3 (E.D. Cal. 8 Sept. 3, 2019) (dismissing for failure to exhaust administrative remedies). Among these is 9 a case, Mendez v. Diaz, in which the court concluded that allegations by a general 10 population inmate “that, each and every time these mergers have taken place, intentionally 11 or unintentionally, there have been well-documented incidents of violence where either the 12 [sensitive needs yard] prisoners attacked and assaulted the [general population] prisoners 13 out of fear for their lives” or vice versa was conclusory, and thus failed to state an Eighth 14 Amendment claim against Defendants Diaz, Allison, and Ndoh. See Mendez, 2020 WL 15 1974231, at *2, 5. As mentioned previously, Plaintiff’s First Amended Complaint contains 16 virtually identical language. (See FAC at 3-4.) 17 Plaintiff contends, however, that in two cases in the Northern District of California, 18 “courts have found similarly situated prisoners to state a claim for relief with regard to 19 these two Defendants and claims as liberally construed . . . .” (ECF No. 23, at 6 (citing 20 Kester v. Diaz, No. 19-cv-4205-JST (N.D. Cal.); Cruz v. Diaz, No. 19-cv-1974-LHK (N.D. 21 Cal.)).) In Kester v. Diaz, the court analyzed Eighth Amendment deliberate indifference 22 claims against Diaz, Allison, and the Warden of Salinas Valley State Prison arising out of 23 CDCR’s efforts to merge the sensitive needs and general population inmates “in all Level 24 1 and 2 yards.” See Kester v. Diaz, No. 19-cv-4205-JST, 2019 WL 3997483, at *2 (N.D. 25 Cal. Aug. 23, 2019). Like Plaintiff’s First Amended Complaint, the complaint in Kester 26 alleged that “it has long been understood that [sensitive needs] inmates cannot safely merge 27 with [general population] inmates” and it is “well documented that when [sensitive needs] 28 and [general population] inmates have previously merged, there have been incidents of 1 violence.” See id. Unlike this case, Kester involved claims by a sensitive needs inmate 2 who claimed that he would be endangered by the merger because of the risk that he would 3 be attacked by general population inmates. See id. at *3. These risks were particularly 4 salient in that case because a declaration attached to the Kester plaintiff’s complaint 5 explained that he feared for his life because “he is a convicted sex offender and a drop-out 6 gang member; he has helped law enforcement obtain convictions for at least two [general 7 population] inmates; and two separate [general population] gangs have offered a bounty 8 for his death.” See id. at *3. Based on these facts, the Kester court concluded that the 9 plaintiff was entitled to a temporary restraining order “enjoin[ing] [Defendants] from 10 placing Plaintiff on an [non-designated programming facility] yard or otherwise requiring 11 him to be housed with [general population] inmates.” Id. at *5; but see Kester v. Diaz, No. 12 4:19-cv-4205-JST (N.D. Cal. Oct. 1, 2019), ECF No. 19, at 8 (denying a preliminary 13 injunction in part because plaintiff was not housed in a non-designated programming 14 facility and had not identified specific threats from general population inmates housed in 15 merged yards). Additionally, although the court did not analyze the question at length, the 16 court also found that plaintiff’s complaint stated a claim sufficient to survive initial 17 screening and ordered service upon the defendants, including Diaz and Allison. See Kester, 18 2019 WL 3997483, at *7. 19 The second case Plaintiff cites, Cruz v. Diaz, is now captioned In re CTF GP 20 Prisoner Litigation, and consolidated under Federal Rule of Civil Procedure 42(a) the cases 21 of three general population inmates at CTF Soledad who have also challenged the merger 22 of sensitive needs and general population prisoners. See In re CTF GP Prisoner Litig., No. 23 5:19-cv-1974-LHK (N.D. Cal. Nov. 20, 2019), ECF No. 21, at 9 (consolidating three 24 cases). The initial complaint in that case is remarkably similar to Plaintiff’s initial 25 Complaint in this case, focusing on the December 12, 2017 and September 10, 2018 26 memoranda by Defendants Allison and Diaz, and copying almost verbatim Plaintiff’s 27 allegations about the results of past mergers of general population and sensitive needs 28 inmates. Compare In re CTF, ECF No. 1, at 3, with FAC at 3-4. This initial complaint, 1 and the two others consolidated into it, was dismissed for failure to allege “facts suggesting 2 that inmates in the general population will be put at risk of physical harm by any merger.” 3 In re CTF, ECF No. 12, at 8. Plaintiffs amended their allegations, however, to add specific 4 instances of harm that they experienced or observed to general population inmates resulting 5 from merged yards. Id. ECF No. 59, at 6-7. This, the court found, was sufficient to “state[] 6 a cognizable claim that the proposed Merger places their safety at risk, and thus violates 7 their Eighth Amendment rights.” Id. at 7. 8 Because Plaintiff is a general population inmate, not a sensitive needs inmate, and 9 does not identify particular reasons why he might be targeted for violence by other 10 prisoners, he is differently situated than the plaintiff in Kester. See Kester, 2019 WL 11 3997483, at *3. Plaintiff is similarly situated to the plaintiffs in In re CTF, however, and 12 like those Plaintiffs, his First Amended Complaint recounts specific instances of violence 13 he has suffered at the hands of sensitive needs yards prisoners during his time in the merged 14 non-designated programming facilities. (See FAC at 3-5.) It is important to note though 15 that while Plaintiff is correct that the In re CTF and Kester courts found similar allegations 16 stated a claim, those conclusions arose in the context of the sua sponte screening process 17 for pro se prisoner claims, and not in response to a motion to dismiss. See Teahan v. 18 Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007) (“[T]he sua sponte screening and 19 dismissal procedure is cumulative of, not a substitute for, any subsequent Rule 12(b)(6) 20 motion that the defendant may choose to bring.”). 21 The only allegations in Plaintiff’s First Amended Complaint specific to Defendants 22 Diaz and Allison are his references to the two memoranda regarding the process of creating 23 non-designated programming facilities. As Defendants point out, there is no respondeat 24 superior liability under Section 1983, and as a result, in order to state a claim against Diaz 25 and Allison, Plaintiff must allege their “‘personal involvement in the constitutional 26 deprivation’” or “‘a sufficient causal connection between the supervisor’s wrongful 27 conduct and the constitutional violation.’” See Jones v. Williams, 297 F.3d 930, 934 (9th 28 Cir. 2002) (quoting Redman v. Cnty. of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) 1 (en banc), abrogated on other grounds by Farmer, 511 U.S. at 837); see also Iqbal, 556 2 U.S. at 676 (“Government officials may not be held liable for the unconstitutional conduct 3 of their subordinates under a theory of respondeat superior.” (emphasis in original)). Since 4 Plaintiff does not allege that Defendants Diaz or Allison were personally aware of the risks 5 inherent in creating merged yards or the harms he or other inmates suffered as a result of 6 their creation,2 he must show that Defendants Diaz and Allison promulgated or 7 “implemented a policy so deficient that the policy ‘itself is a repudiation of constitutional 8 rights’ and is ‘the moving force of the constitutional violation.’” Hansen v. Black, 885 9 F.2d 642, 646 (9th Cir. 1989) (quotation omitted). Plaintiff has not done so. See Mendez, 10 2020 WL 1974231, at *5 (“Plaintiff has not alleged any facts demonstrating that 11 implementation of the [non-designated programming facilities] policy would always 12 violate the Eighth Amendment, no matter which . . . inmates . . . or yards the policy was 13 applied to.”). In addition, such a claim is belied by the contents of Defendant Allison’s 14 memorandum, which explains that the expansion of non-designated programming facilities 15 is limited to “inmates demonstrating positive programming efforts and a desire not to get 16 involved in the destructive cycles of violence,” and that in order to be placed there, inmates 17 must be “advised of programming expectations and positive programming reasoning for 18 referral to a non-designated [programming facility].” (ECF No. 18, at 25-26.) 19 Plaintiff fails to state a claim despite his allegation that such mergers have always 20 resulted in violence when they have been attempted in the past. (See FAC at 3-4.) This 21 assertion is conclusory and unsupported by any facts. See Mendez, 2020 WL 1974231, at 22 *5 (rejecting similar allegations as conclusory and explaining that “Plaintiff has not alleged 23 facts showing that he told Defendants Diaz, Allison, and/or Ndoh, or that each of the 24 Defendants was aware, of a non-speculative, specific risk to Plaintiff’s health and safety.”). 25 26 27 2 Having disregarded the assertions in the Montalvo Declaration for purposes of this Motion, the Court expresses no opinion as to whether the facts contained therein, if alleged in an amended pleading, would 28 1 Plaintiff’s citation to two Ninth Circuit decisions, Robinson v. Prunty, 249 F.3d 862 (9th 2 Cir. 2001) and Hearns v. Terhune, 413 F.3d 1036 (9th Cir. 2005), for the proposition that 3 “the law was clearly established by 2017 . . . that these two population could not safely be 4 mixed or housed together” does not establish Defendants’ awareness of potential risks to 5 Plaintiff’s safety either.3 Robinson involved claims that a racially mixed yard posed a 6 safety risk, not that merging general population and sensitive needs inmates into a single 7 yard posed a risk to general population inmates. See Robinson, 249 F.3d at 866-67 (holding 8 that it was appropriate to deny qualified immunity where plaintiff alleged a “gladiator-like 9 scenario, in which prison guards are aware that placing inmates of different races in the 10 yard at the same time presents a serious risk of violent outbreaks.”). Hearns, which 11 considered whether prison officials were deliberately indifferent to the risks of religiously 12 motivated violence within the prison’s Muslim community, is similarly inapposite. See 13 Hearns, 413 F.3d at 1040-41. 14 Because Plaintiff has not alleged sufficient “factual content that allows the court to 15 draw the reasonable inference” that Defendants Diaz or Allison were deliberately 16 indifferent to Plaintiff’s safety, Defendants’ Motion to Dismiss the claims against these 17 Defendants is GRANTED. See Iqbal, 556 U.S. at 678. Given the contents of the Montalvo 18 Declaration and the possibility that Plaintiff may be able to allege additional facts bearing 19 on the deficiencies identified above, including citations to previous mergers in which 20 general population prisoners were harmed by sensitive needs prisoners post-merger, leave 21 22 23 3 Because Plaintiff’s claims are dismissed in their entirety for failure to state a claim, the Court need not address Defendants’ alternative argument that Plaintiff’s claims are barred by qualified immunity. See, 24 e.g., Aguilera v. Baca, 510 F.3d 1161, 1167, 1174 (9th Cir. 2007) (noting that if no constitutional violation 25 occurred the court need not decide whether qualified immunity applies). Although the cases discussed above and cited by Plaintiff arose in the context of claims of qualified immunity, the Court discusses them 26 here only to the extent they bear on Defendants Diaz and Allison’s awareness of a substantial risk to Plaintiff’s safety in adopting the merger policy or whether the policy they adopted was “so deficient that 27 the policy ‘itself is a repudiation of constitutional rights . . . .’” See Hansen, 885 F.2d at 646 (quotation omitted). The Court does not express an opinion as to whether Defendants may be able to show that some 28 1 to amend is granted, as discussed further below. 2 C. Defendant Covello 3 As mentioned, Plaintiff alleges that Defendant Covello, the Warden of RJD, was 4 deliberately indifferent to Plaintiff’s safety when he assigned Plaintiff to a non-designated 5 programming facility after Plaintiff experienced several attacks by sensitive needs 6 prisoners in a similar merged yard at RJD. (See FAC at 4-5.) Specifically, Plaintiff alleges 7 that shortly after arriving at RJD he was assigned to a non-designated programming facility 8 and immediately attacked by sensitive needs inmates who seriously injured Plaintiff’s face 9 and neck. (See id. at 4.) After two days in administrative segregation, Plaintiff was 10 returned to that yard where he experienced “another physical altercation” with a sensitive 11 needs yard prisoner. (See id.) Subsequently, Plaintiff was “taken to committee,” where a 12 counselor and captain recommended that Plaintiff be transferred to a general population 13 yard for his safety. (See id.) Before that could happen, Plaintiff was “taken to committee 14 again,” this time before Warden Covello. (See id.) Covello asked Plaintiff “what would 15 happen” if he was placed in a different merged yard, to which Plaintiff responded he was 16 “‘a General Population inmate.’” (Id. at 5 (quotation in original).) Covello “cut the 17 Plaintiff off and snapped and said ‘send him, get him out of here,’” before threatening to 18 assign Plaintiff to a higher security yard. (See id.) Subsequently, Plaintiff was assigned 19 to another merged yard where he was “immediately involved in another altercation” with 20 a sensitive needs inmate. (See id.) 21 Defendants argue that these allegations do not demonstrate deliberate indifference 22 on the part of Warden Covello. Specifically, Defendants contend that “[t]here is no 23 allegation that Warden Covello had anything to do with Plaintiff’s initial placement and 24 retention on the [merged] yard or that [Covello] was aware of Plaintiff’s problems on that 25 yard until plaintiff went to committee . . . where . . . Covello was present and asked 26 Plaintiff about his safety concerns.” (See ECF No. 18, at 16.) Defendants further argue 27 that Plaintiff’s statement at the meeting that he was “a General Population inmate,” (see 28 FAC at 5 (internal quotation marks omitted)), did not “indicate [to Covello] that [Plaintiff] 1 would resort to violence or that he had any enemy concerns on [the] new yard.” (See ECF 2 No. 18, at 16.) By ensuring that Plaintiff was not returned to the yard where he was 3 previously assaulted, and instead assigning Plaintiff to a different, higher level non- 4 designated programming facility, Defendants contend that Covello acted reasonably and 5 was not deliberately indifferent to Plaintiff’s safety. 6 Although Plaintiff suggests that Defendants’ arguments are based on “factual 7 disputes rather than any deficiencies in Plaintiff’s claims,” (see ECF No. 23, at 7), 8 Plaintiff’s allegations, taken as true, demonstrate that he fails to state a claim against 9 Defendant Covello. With respect to the first attack against Plaintiff, which occurred three 10 days after he arrived at RJD, the First Amended Complaint does not allege that Covello 11 was responsible for Plaintiff’s assignment to “the minimum yard (M yard), level one,” a 12 non-designated programming facility, let alone that Covello had any reason to believe 13 Plaintiff would be in danger there. (See FAC at 4.) Indeed, Plaintiff alleges that an 14 unnamed captain was responsible for his release to M Yard. (See id.) Nor does Plaintiff 15 allege any involvement by Covello in Plaintiff’s return to that yard two days later, when 16 he was involved in another altercation with an inmate. (See id.) Although Plaintiff pleaded 17 that a “counselor and captain” recommended that Plaintiff be transferred to a general 18 population yard “as he could not safely program on a[] [non-designated programming 19 facility] yard,” Plaintiff does not allege that Covello was aware of that conclusion either. 20 (See id.) When Plaintiff first spoke to Defendant Covello in committee, all Plaintiff alleges 21 that he told the Warden was “I am a General Population inmate,” (See id. at 5 (internal 22 quotation marks omitted).) which is not sufficient to “allow[] the court to draw the 23 reasonable inference,” Iqbal, 556 U.S. at 678, that Covello had any reason to believe 24 Plaintiff would be in danger if he was assigned to any of the several non-designated 25 programming facilities within RJD. (See FAC at 4-5.) As a result, Plaintiff has not alleged 26 that Covello “kn[ew] of and disregard[ed] an excessive risk to [Plaintiff’s] health or 27 safety,” or that Covello was both “aware of facts from which the inference could be drawn 28 that a substantial risk of serious harm exist[ed], and . . . also dr[e]w the inference.” See 1 Farmer, 511 U.S. at 837; see also Berg v. Kincheloe, 794 F.2d 457, 460 (9th Cir. 1986) 2 (concluding that summary judgment was appropriate as to defendant prison officials where 3 plaintiff “failed to come forward with facts showing that these defendants had any reason 4 to believe [plaintiff] would be attacked by the assailant.” (citations omitted)). 5 Accordingly, Defendants’ Motion to Dismiss Plaintiff’s claims against Defendant 6 Covello is GRANTED and these claims are dismissed for failure to state a claim. As 7 explained below, leave to amend is granted to cure the deficiencies identified. 8 D. Declaratory and Injunctive Relief 9 In addition to seeking compensatory and punitive damages, the First Amended 10 Complaint seeks a declaratory judgment that Defendants’ actions violated the Eighth 11 Amendment and injunctive relief barring Defendants from merging sensitive needs and 12 general population inmates into non-designated programming facilities. (See FAC at 6.) 13 Defendants point out that these claims are moot now that Plaintiff has been released from 14 custody. See Cano v. Taylor, 739 F.3d 1214, 1221 (9th Cir. 2014) (“Consistent with case 15 law, [Plaintiff’s] claims for injunctive and declaratory relief are mooted by his release from 16 prison, but his other claims may not be.”). Plaintiff agrees that these claims are moot and 17 states that he no longer pursues them. (See ECF No. 23, at 7.) The Court agrees. 18 Defendants’ Motion to Dismiss Plaintiff’s declaratory and injunctive claims is 19 GRANTED. 20 E. Official Capacity Claims 21 Defendants also contend that because Plaintiff’s declaratory and injunctive claims 22 are moot, the Eleventh Amendment bars any remaining damages claims against Defendants 23 in their official capacities. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65-71 24 (1989); Douglas v. Cal. Dep’t of Youth Auth., 271 F.3d 812, 817-818 (9th Cir. 2001). 25 Plaintiff does not respond to Defendants’ argument, which is correct. Accordingly, 26 Defendants’ Motion to Dismiss Plaintiff’s official capacity claims is GRANTED, and the 27 leave to amend granted below is solely as to claims for damages against the Defendants in 28 their individual capacities. 1 IV. Leave to Amend 2 As mentioned, in light of the facts in the Montalvo Declaration, as well as Plaintiff’s 3 pro se status, the Court grants Plaintiff forty-five (45) days leave to amend to cure the 4 deficiencies in his claims against Defendants. See AmerisourceBergen Corp. v. Dialysist 5 W., Inc., 465 F.3d 946, 951 (9th Cir. 2006) (“Rule 15(a) is very liberal and leave to amend 6 shall be freely given when justice so requires.” (quotation omitted)). This leave to amend 7 is granted solely as to damages claims against Defendants in their individual capacities. 8 Plaintiff’s Second Amended Complaint must be complete in itself, without reference 9 to Plaintiff’s original pleading, and any claims Plaintiff fails to reallege against any of the 10 Defendants will be considered waived. See S.D. Cal. Civ. L.R. 15.1; Lacey, 693 F.3d at 11 928 (noting that claims dismissed with leave to amend that are not re-alleged in an amended 12 pleading may be “considered waived if not repled”); Hal Roach, 896 F.2d at 1546 (“[A]n 13 amended pleading supersedes the original.”). 14 V. Conclusion and Orders 15 Accordingly, the Court: 16 (1) GRANTS Defendants’ Motion to Dismiss Plaintiff’s claims (ECF No. 18); 17 (2) GRANTS Plaintiff forty-five (45) days leave to file a Second Amended 18 Complaint. If Plaintiff fails to file a Second Amended Complaint within the time provided, 19 the Court will enter a final order dismissing this action in its entirety based both on 20 Plaintiff’s failure to state a claim upon which relief can be granted pursuant to Federal Rule 21 of Civil Procedure 12(b)(6) and his failure to prosecute in compliance with a court order 22 requiring amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a 23 plaintiff does not take advantage of the opportunity to fix his complaint, a district court 24 / / / / / 25 / / / / / 26 / / / / / 27 / / / / / 28 / / / / / 1 ||may convert the dismissal of the complaint into dismissal of the entire action.”’). 2 IT ISSO ORDERED. 3 ||Dated: June 25, 2020 € ZL 4 Hon. Cathy Ann Bencivengo 5 United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21