(PC) Caruso v. Hill

• Court: District Court, E.D. California
• Decided: January 20, 2021
• Docket: 1:20-cv-00084
• Status: Unknown

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 GINA CARUSO, CASE NO. 1:20-CV-0084 AWI EPG (PC)

10 Plaintiff ORDER ON DEFENDANTS’ SECOND 11 v. MOTION TO DISMISS

12 MOLLY HILL et al., (Doc. No. 29) 13 Defendants

14 15 16 This is a prisoner civil rights action brought by Plaintiff Gina Caruso (“Caruso”) against 17 current and former personnel of the California Institution for Women (“CIW”) prison. Caruso is 18 represented by counsel and alleges two causes of action under 42 U.S.C. § 1983, one for violation 19 of the First Amendment and one for violation of the Fourteenth Amendment. The active 20 complaint is the First Amended Complaint (“FAC”), which was filed after the Court granted 21 Defendants’ first motion to dismiss. Currently before the Court is Defendants’ second Rule 22 12(b)(6) motion to dismiss. For the reasons that follow, the motion will be granted. 23 24 RULE 12(b)((6) FRAMEWORK 25 Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed because of the 26 plaintiff’s “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A 27 dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the 28 absence of sufficient facts alleged under a cognizable legal theory. See Mollett v. Netflix, Inc., 1 795 F.3d 1062, 1065 (9th Cir. 2015). In reviewing a complaint under Rule 12(b)(6), all well- 2 pleaded allegations of material fact are taken as true and construed in the light most favorable to 3 the non-moving party. Kwan v. SanMedica, Int’l, 854 F.3d 1088, 1096 (9th Cir. 2017). However, 4 complaints that offer no more than “labels and conclusions” or “a formulaic recitation of the 5 elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Johnson 6 v. Federal Home Loan Mortg. Corp., 793 F.3d 1005, 1008 (9th Cir. 2015). The Court is “not 7 required to accept as true allegations that contradict exhibits attached to the Complaint or matters 8 properly subject to judicial notice, or allegations that are merely conclusory, unwarranted 9 deductions of fact, or unreasonable inferences.” Seven Arts Filmed Entm’t, Ltd. v. Content Media 10 Corp. PLC, 733 F.3d 1251, 1254 (9th Cir. 2013). To avoid a Rule 12(b)(6) dismissal, “a 11 complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is 12 plausible on its face.” Iqbal, 556 U.S. at 678; Mollett, 795 F.3d at 1065. “A claim has facial 13 plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 14 inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678; Somers 15 v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013). “Plausibility” means “more than a sheer 16 possibility,” but less than a probability, and facts that are “merely consistent” with liability fall 17 short of “plausibility.” Iqbal, 556 U.S. at 678; Somers, 729 F.3d at 960. The Ninth Circuit has 18 distilled the following principles for Rule 12(b)(6) motions: (1) to be entitled to the presumption 19 of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause 20 of action, but must contain sufficient allegations of underlying facts to give fair notice and to 21 enable the opposing party to defend itself effectively; (2) the factual allegations that are taken as 22 true must plausibly suggest entitlement to relief, such that it is not unfair to require the opposing 23 party to be subjected to the expense of discovery and continued litigation. Levitt v. Yelp! Inc., 24 765 F.3d 1123, 1135 (9th Cir. 2014). If a motion to dismiss is granted, “[the] district court should 25 grant leave to amend even if no request to amend the pleading was made . . . .” Ebner v. Fresh, 26 Inc., 838 F.3d 958, 962 (9th Cir. 2016). However, leave to amend need not be granted if 27 amendment would be futile or the plaintiff has failed to cure deficiencies despite repeated 28 opportunities. Garmon v. County of L.A., 828 F.3d 837, 842 (9th Cir. 2016). 1 FACTUAL BACKGROUND 2 While Caruso was incarcerated at the Central California Women’s Facility (“CCWF”) 3 prison, she was subject to an improper strip search in July 2013. 4 In May 2015, Caruso filed a lawsuit in this Court against CCWF personnel. That lawsuit, 5 the “CCWF Lawsuit,” remains pending. After filing the CCWF Lawsuit, Caruso was transferred 6 to CIW in October 2015, where she continued to prosecute the CCWF Lawsuit pro se. 7 On March 14, 2019, following a number of court orders in which Defendant Warden 8 Molly Hill was required to respond and conduct atypical investigations as a result of Caruso’s 9 filings in the CCWF lawsuit,1 a classification hearing was held at CIW involving Caruso, Hill, 10 Defendant Associate Warden Richard Montes (“Montes”),2 Correction Counselor C. Alvarez, and 11 psychologist Dr. Celosse. At this hearing, Hill stated that Caruso had worn out her (Caruso’s) 12 welcome at CIW, that Hill was tired of dealing with Caruso, and that Hill wanted Caruso out of 13 CIW. Hill compared herself and the Warden of CCWF to divorced parents who passed their 14 unwanted children between each other. Hill stated that it was CCWF’s turn to deal with Caruso 15 and that a transfer from CIW to CCWF had been approved through a “Warden to Warden 16 Agreement.” Caruso reminded Hill that Caruso had five validated enemy concerns at CCWF. 17 Hill responded that she had worked very hard to make the five enemy concerns go away and that 18 Caruso would have to figure out how to deal with any enemies upon arrival at CCWF. Hill 19 ordered Caruso’s immediate and involuntary transfer to CCWF and prohibited Caruso from 20 returning to her cell to collect her personal belongings. Montes failed to intervene to stop the 21 transfer. After the hearing concluded, Caruso was escorted to a transport van for transport to 22 CCWF. Dr. Celosse was not permitted to meet with Caruso in a therapeutic setting and was only 23 allowed to speak with Caruso briefly in the transportation van. Hill’s decision to transfer Caruso 24 was made with full knowledge that Caruso had five validated enemy concerns at CCWF. 25 Caruso alleges that pursuant to 15 Cal. Code Reg. § 3379, Hill was required to transfer 26 1 This is the Court’s shorthand. A more thorough recitation of the litigation activity in the CCWF lawsuit can be 27 found in Caruso v. Hill, 2020 U.S. Dist. LEXIS 125709 (E.D. Cal. July 15, 2020).

28 2 The FAC identifies Montes as the Acting Warden of CIW, but in March 2019, Montes was an Associate Warden. 1 Caruso pursuant to actions taken by the classification committee, which required a Classification 2 Staff Representative (“CSR”) to endorse the transfer from CIW to CCWF. Caruso alleges that 3 § 3379 creates a liberty interest in having a prisoner’s transfer reviewed and approved by a CSR. 4 In disregard of § 3379, Hill evaded the CSR process and took independent and unregulated action 5 to transfer Caruso to the general population of CCWF pursuant to the illegal warden transfer 6 agreement. The rationale for transfer that is identified in the warden transfer agreement was that 7 Caruso was a Level IV inmate with a classification score of 711 and that CIW was not a Level IV 8 facility. The rationale also stated that Caruso had enemy concerns with CIW’s general population 9 and that her presence at CIW’s general population was a threat to institutional security. However, 10 as of the March 2019 transfer, Caruso had no validated enemies at CIW. Hill provided the false 11 rationale for the CCWF transfer. The warden transfer agreement documented Hill’s expectation 12 that Caruso would be housed in the general population at CCWF despite the known risk to 13 Caruso’s physical safety posed by her enemies at CCWF. The warden transfer agreement is an 14 unregulated and underground process, and women prisoners have long been subject to such illegal 15 transfers. 16 Upon arrival at CCWF on March 14, 2019, CCWF initially began to process Caruso for 17 release into the general population. In response to Caruso’s pleas to review her enemy concerns, 18 CCWF placed Caruso in solitary confinement/Ad Seg pending further investigation. Placement in 19 Ad Seg was for safety, not discipline. CCWF validated Caruso’s enemy concerns in August 2019. 20 To this day, Caruso continues to be in Ad Seg for safety reasons, where she is confined in her cell 21 for 24 hours a day, except for 15 minute showers three times per week, and for medical and legal 22 visits. While in Ad Seg, Caruso has not been able to participate in rehabilitative and therapeutic 23 programs or church and has been unable to have family visits. For most of Caruso’s confinement 24 in Ad Seg, CCWF denied Caruso non-disciplinary status, which would have provided the same 25 privileges as prisoners housed in the general population. Caruso anticipates that having 26 disciplinary status will limit her ability to participate in programming upon release to the general 27 population and negatively impact her ability to seek parole. In Ad Seg, Caruso is subject to 28 numerous strip searches. Caruso alleges that Hill and Montes maliciously intended for Caruso to 1 be released to the general population at CCWF, as a known risk to her physical safety, but are 2 nonetheless liable for the damages resulting from Caruso’s prolonged and continued confinement 3 in Ad Seg at CCWF. 4 Following the validation of Caruso’s enemies in CCWF, Caruso was informed that her 5 single validated enemy at CIW had been resolved. Caruso was informed in October 2019 that she 6 would be transferred back to CIW, pending a phone call between the wardens of CIW and CCWF. 7 However, Hill refused to accept Caruso’s transfer back to CIW, and the transfer was halted. 8 Caruso argues that Hill’s illegal transfer is part of a pattern of illegal retaliatory transfers, 9 and that Defendant Secretary Ralph Diaz knew or should have known of the illegal transfers yet 10 has failed to take corrective action. 11 12 DEFENDANTS’ MOTION 13 Defendants’ Arguments 14 Defendants argue that the second cause of action for violation of Fourteenth Amendment 15 procedural due process fails because the FAC does not plead that a protected liberty interest was 16 impacted by the transfer from CIW to CCWF. The Fourteenth Amendment itself provides no 17 liberty interest against involuntary prison transfers. Further, 15 CCR § 3379 creates no liberty 18 interest in having a transfer reviewed and approved by a CSR. Section 3379 itself provides that a 19 CSR need not approve a transfer under “emergent circumstances.” A non-exclusive list of 20 emergent circumstances is provided, which means that § 3379 does not guarantee that all inmate 21 transfers will or must be reviewed by a CSR. There is no substantive limitation on a prison 22 official’s discretion to transfer under § 3379. Additionally, while a transfer might implicate a due 23 process right to avoid atypical conditions of confinement, Caruso has again failed to adequately 24 link any conditions of confinement at CCWF with any named Defendant. In fact, the FAC alleges 25 that Hill anticipated that Caruso would not be placed in Ad Seg, but within the general population 26 of CCWF. It was Caruso herself who requested that she be placed in Ad Seg. 27 With respect to Secretary Diaz, the FAC alleges that he should have been aware of a 28 pattern of retaliatory transfers by Hill. However, the FAC identifies only one other retaliatory 1 transfer by Hill. A single prior transfer does not constitute a pattern. Without a pattern of 2 retaliatory conduct, there is no basis for liability against Secretary Diaz. 3 Finally, Caruso has alleged that all Defendants violated her rights, even though Diaz and 4 Defendant Foss are sued only in their official capacities. This is the same as naming the State of 5 California multiple times as a Defendant and is unnecessary. Defendants argue that Diaz and Foss 6 should be dismissed as duplicative because Montes is sued in his official and individual capacity. 7 Further, there are no facts alleged against Diaz or Foss that would support a retaliation claim. 8 Plaintiff’s Opposition 9 Caruso argues that she has alleged a plausible Procedural Due Process claim based on the 10 liberty interest created by state regulations. Caruso contends that state regulations limit the power 11 of prison officials to transfer prisoners in a way that ignores enemy and safety concerns. A CSR is 12 required to approve a transfer in order to ensure an inmate’s enemies are considered in 13 determining appropriate prison placement. This insures the safety of prisoners, staff, and other 14 inmates. None of the cases relied upon by Defendants involved a failure to obtain CSR approval 15 for a transfer. Although there are limited exceptions for when CSR approval is not necessary, 16 Defendants never explain why the transfer at issue was made under emergent circumstances. 17 Additionally, the incidents of prison life confronted by Caruso were not consistent with the 18 ordinary incidents of prison life. Hill and Montes took extraordinary actions by transferring 19 Caruso to CCWF after removing her enemy concerns and then ordering her transfer to the general 20 population. These allegations indicate that Caruso’s enemy concerns were considered and 21 intended to cause her physical harm. Further, Caruso emphasizes that she has been in Ad Seg for 22 1 ½ years without the same privileges as prisoners housed in the general population. CCWF’s 23 denial of non-disciplinary status will also have a negative impact on Caruso’s rehabilitation 24 efforts, overall sentence, and prospects for parole. Finally, Caruso argues that the transfer was 25 retaliatory in nature and violated the First Amendment. Defendants’ abusive and retaliatory use of 26 the transfer process to punish female prisoners who exercise their rights to file and participate in 27 lawsuits should be construed as an atypical and significant hardship. 28 Caruso also argues that she alleged a plausible retaliation claim against Defendant Diaz. 1 Apart from the other retaliatory transfer identified in the FAC, Caruso requests that the Court take 2 judicial notice of five other cases in which Hill or the warden of CIW engaged in retaliatory 3 transfers. Caruso argues that the six additional cases are sufficient to show a pattern or practice of 4 retaliatory transfers. 5 Finally, Caruso explains that she seeks three forms of declaratory and injunctive relief: 6 transfer back to CIW, prohibit retaliation regarding classification and housing needs, and prohibit 7 the use of warden transfer agreements to transfer female prisoners. Caruso explains that she 8 attempted to meet and confer with Defendants’ counsel to determine if there is a Defendant who 9 can provide these areas of relief. However, Defendants’ counsel did not cooperate. Therefore, 10 because it is unclear if there is a Defendant who can provide relief, it is appropriate to sue 11 Defendants Foss, Montes, and Diaz in their individual capacity. 12 Discussion 13 1. Procedural Due Process 14 Prisoners have no due process protections that derive from the Constitution with respect to 15 inter-prison transfers. See Wilkinson v. Austin, 545 U.S. 209, 221 (2005); Montanye v. Haymes, 16 427 U.S. 236, 242 (1976). However, states may create liberty interests through statutes, 17 regulations, and policies. Wilkinson, 545 U.S. at 222; Chappell v. Mandeville, 706 F.3d 1052, 18 1063 (9th Cir. 2013). These state laws are “generally limited to freedom from restraint which . . . 19 imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of 20 prison life.” Sandin v. Conner, 515 U.S. 515 U.S. 472, 484 (1995); Myron v. Terhune, 476 F.3d 21 716, 718 (9th Cir. 2007). In order to determine whether a prison hardship imposes an atypical and 22 significant hardship, courts should consider at least three factors: (1) whether the conditions of 23 confinement “mirrored those conditions imposed upon inmates in analogous discretionary 24 confinement settings, namely administrative segregation and protective custody, (2) the duration 25 and intensity of the conditions of confinement, and (3) whether the change in confinement would 26 inevitably affect the duration of the prisoner’s sentence. Chappell, 706 F.3d at 1064-65. Statutory 27 or regulatory “procedural requirements, even if mandatory, do not raise a constitutionally 28 cognizable liberty interest.” Smith v. Noonan, 992 F.2d 987, 989 (9th Cir. 1993). 1 Here, Caruso argues that CDCR regulations provide her with a liberty interest in a transfer 2 that is reviewed by a CSR in order to account for her enemy concerns. The FAC specifically and 3 exclusively lists only 15 C.C.R. § 3379. In relevant part, § 3379 reads: 4 Unless exempted within this section, any inmate transfer shall require a classification committee action and endorsement by a classification staff 5 representative (CSR) or expedited transfer approval by the Chief of the Population Management Unit. A classification committee action and CSR endorsement is not 6 required in the cases of . . . expedited transfers warranted under emergent circumstances, including but not limited to inmate medical or mental health needs 7 and transfers from one restricted housing unit to a similar restricted housing unit. 8 15 C.C.R. § 3379(a)(1). 9 No case has held that § 3379 creates any liberty interest that is entitled to procedural due 10 process protection. In fact, courts find that § 3379 creates no liberty interests. See Lucas v. 11 Koenig, 2020 U.S. Dist. LEXIS 128690, *10-*11 (N.D. Cal. July 21, 202); Warner v. Tileston, 12 2018 U.S. Dist. LEXIS 114734, *59 (N.D. Cal. July 10, 2018); Monroe v. Kernan, 2017 U.S. Dist. 13 LEXIS 148646, *11-*12 & n.8 (C.D. Cal. June 15, 2017); Ly v. Swarthout, 2014 U.S. Dist. 14 LEXIS 21468, *3-*5 (N.D. Cal. Feb. 18, 2014); Gray v. Hernandez, 2011 U.S. Dist. LEXIS 15 29163, *21-*22 (S.D. Cal. Mar. 14, 2011); Denham v. Aranda, 2010 U.S. Dist. LEXIS 61990, 16 *27-*28 (S.D. Cal. May 3, 2010); Endsley v. Mayberg, 2010 U.S. Dist. LEXIS 124166, *24 n.12 17 (E.D. Cal. Nov. 19, 2010); Jin v. Forgia, 2007 U.S. Dist. LEXIS 105769, *11-*12 (C.D. Cal. Dec. 18 6, 2007); Kevakian v. Kennedy, 1995 U.S. Dist. LEXIS 21694, *21-*22 (N.D. Cal. Jan. 5, 1995). 19 The Court agrees with these cases. 20 It is true that none of these cases deal with a situation in which a prisoner was challenging 21 the failure to have her transfer reviewed by a CSR. However, not even § 3379 requires that every 22 transfer be reviewed by a CSR. Emergency transfers may be accomplished without a CSR’s 23 review.3 Further, § 3379 does not explain under what circumstances a transfer should be granted, 24 denied, delayed, or modified. There are no limits on a CSR’s review, or on the decisions that a 25 CSR can reach, nor is there exclusive objective criteria for determining whether an emergency 26 exists such that a CSR’s review is unnecessary. Review by a CSR appears to be a procedural 27 requirement that is not even absolute. As a procedural requirement, review by a CSR of a prison 28 1 transfer is not a protected liberty interest and cannot form the basis of a Fourteenth Amendment 2 claim. See Smith, 992 F.2d at 989; Warner, 2018 U.S. Dist. LEXIS 114734 at *59; Ly, 2014 U.S. 3 Dist. LEXIS 21468 at *4-*5; Kevakian, 1995 U.S. Dist. LEXIS at *21-*22. 4 Caruso has alleged that ever since her 2019 transfer, she has been in Ad Seg and thus, 5 faces an atypical and significant hardship. However, § 3379 is merely a procedural statute that 6 describes inmate transfers. There is no question that California may change Caruso’s place of 7 confinement, even to a less agreeable prison, because she is a convicted prisoner. Rizzo v. 8 Dawson, 778 F.2d 527, 530-31 (9th Cir. 1985). Section 3379 does not provide for any particular 9 conditions of confinement, for the imposition of any type of restraint whatsoever, or have any 10 discernable effect on parole considerations. Further, Caruso is classified as a Level IV prisoner 11 and CCWF is considered a Level IV prison.4 There is nothing improper about a Level IV prisoner 12 being placed in a Level IV prison. Finally, part of the reason why Caruso is in Ad Seg is at her 13 own request because she fears harm from validated enemies. There are no allegations that any 14 Defendant is responsible for either Caruso’s placement in Ad Seg or the refusal of CCWF 15 personnel to grant her non-disciplinary status. It is the failure of CCWF to give Caruso the “non- 16 disciplinary” status that is causing Caruso hardship. Section 3379 has nothing to do with CCWF’s 17 decision to keep Caruso housed in Ad Seg or without a non-disciplinary status.5 18 Finally, Caruso argues that the transfer was unconstitutional and intended to cause her 19 physical harm. The Court agrees that Caruso has alleged a plausible First Amendment retaliation 20 claim. If the transfer was unconstitutional because it was made in retaliation for Caruso exercising 21 her constitutional rights, then that violation will be remedied through first cause of action and the 22 First Amendment. Further, if Caruso can show that the retaliatory transfer was intended by 23 Defendants to at least in part cause Caruso physical injury at the hands of inmates at CCWF, such 24 conduct would support a finding of malice or oppression and thus, punitive damages. Again, 25 however, punitive damages is appropriate for the violation of the First Amendment. Caruso is 26 4 The parties dispute whether CIW is a Level IV facility, but there is no dispute that CCWF is a Level IV facility. 27 5 The Court is sympathetic to Caruso’s complaints that she should have a non-disciplinary status if she is housed in Ad 28 Seg. However, the housing and classifications decisions, including disciplinary and non-disciplinary status, are 1 improperly trying stretch a clear First Amendment retaliation claim to also encompass a 2 Fourteenth Amendment procedural due process claim. 3 In sum, § 3379 is a procedural regulation that creates no restraints or conditions of 4 confinement, but instead addresses prison transfers without an absolute requirement for CSR 5 review.6 Section 3379 imposes no restraints on an inmate that constitute an atypical and 6 significant hardship. Therefore, § 3379 is not a source for Fourteenth Amendment procedural due 7 process protection. See Smith, 992 F.2d at 989; Toussaint v. McCarthy, 801 F.2d 1080, 1089 (9th 8 Cir. 1986) (noting that no procedural protections are required when a plaintiff does not possess a 9 liberty interest); Warner, 2018 U.S. Dist. LEXIS 114734 at *59; Ly, 2014 U.S. Dist. LEXIS 21468 10 at *4-*5; Kevakian, 1995 U.S. Dist. LEXIS at *21-*22. Given the Court’s analysis, and the prior 11 dismissal, the dismissal of the second cause of action will now be without leave to amend. 12 2. Defendants Diaz & Foss 13 At this time, there appears to be no reason to keep either Diaz or Foss in this lawsuit. Diaz 14 and Foss are sued only in their official capacities. This is the equivalent of bringing suit against 15 the State of California. Kentucky v. Graham, 473 U.S. 159, 166 (1985); Butler v. Elle, 281 F.3d 16 1014, 1023 n.8 (9th Cir. 2002). Montes is sued in both his individual and official capacities. 17 Again, suing Montes in an official capacity is the equivalent of suing the State of California. 18 Thus, the State of California is named as a Defendant three times in the FAC. 19 The parties could not agree about eliminating official capacity defendants apparently 20 because of a disagreement regarding the viability of Caruso’s procedural due process claim. That 21 disagreement has been decided by the Court; there will not be a procedural due process claim. 22 Therefore, any injunctive relief that was appropriate only through the second cause of action 23 cannot be granted. Further, both in Defendants’ motion and Defendants’ reply, Defendants 24 contend that Foss and Diaz should be dismissed as duplicative parties because Montes is being 25 sued in both an individual and official capacity. That is, Montes in his official capacity already 26 represents the State of California as a named Defendant. The Court takes all Defendants to be 27 6 The Court notes that Caruso’s opposition cites to regulatory provisions that are not identified in the FAC. The Court 28 has reviewed those provisions and cannot conclude that they transform § 3379 into the source of a protected liberty ——— mE IIE INE IRIE EI EE EEN OIE EE OSE IEEE IR ED eee

1 |representing that any prospective injunctive relief to which Caruso may be entitled with respect to 2 |her retaliation claim can be implemented and given full effect through Montes in his official 3 |capacity (assuming Caruso prevails on her retaliation claim). With this understanding, there is no 4 | useful purpose served by retaining Diaz and Foss (again, who are only sued in their official 5 capacities) as parties in this suit.’ Therefore, Foss and Diaz will be dismissed as unnecessary 6 | duplicative parties.® 7 8 ORDER 9 Accordingly, IT IS HEREBY ORDERED that: 10 Defendants’ motion to dismiss (Doc. No. 29) is GRANTED; 11 }2. Plaintiffs second cause of action is DISMISSED without leave to amend; 12 }3. Defendants Diaz and Foss are DISMISSED without leave to amend; and 13 |4. Within fourteen (14) days of service of this order, Defendants shall file an answer. 14 15 IT IS SO ORDERED. 16 | Dated: _ January 19, 2021 : _-SENIOR DISTRICT JUDGE 17 18 19 20 21}: The parties will be ordered to meet and confer regarding the official capacity claim against Montes. If the Court’s understanding of Defendants’ representations in the motion and reply is incorrect, then Caruso may file a motion for 22 | reconsideration. 23 Caruso asks the Court to take judicial notice of past instances in which Hill or other CTW wardens used a warden to warden transfer agreement to retaliatorily transfer female prisoners. Presumably the purpose of these additional cases 24 | is to show that Diaz knew or should have known about the improper transfer practice. Defendants oppose the request for judicial notice. The Court will not take judicial notice of the prior instances for two reasons. First, Diaz is being 25 | dismissed as duplicative of Montes. Montes is alleged to have known about and directly participated in Caruso’s retaliatory transfer, and Defendants’ briefing indicates that naming Montes in his official capacity is sufficient for any 26 | appropriate injunctive relief that may be available under the first cause of action. Second, the Court has already held that a plausible retaliation claim has been alleged. While it is possible that other instances of retaliatory transfers may 27 | be probative of Hill’s intent or motive, because a plausible claim has been pled, there is no need to further examine Hill’s intent or motive in the context of a Rule 12(b)(6) motion. Therefore, since no useful purpose would be served 2g | by taking judicial notice of the disputed other instances of retaliatory transfers, the Court will deny Caruso’s request for judicial notice. 11