(PC) Gomez v. CDCR

• Court: District Court, E.D. California
• Decided: October 22, 2024
• Docket: 2:20-cv-00198
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALFREDO GOMEZ, No. 2:20-cv-0198 KJM AC P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 CALIFORNIA DEPARTMENT OF CORRECTIONS AND 15 REHABILITATION, et al., 16 Defendants. 17 18 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 19 U.S.C. § 1983. Currently before the court is defendants’ motion to dismiss plaintiff’s complaint. 20 ECF No. 25. 21 I. Background 22 A. Procedural History 23 Plaintiff, Alfredo Gomez, filed suit against the California Department of Corrections and 24 Rehabilitation (CDCR) and Ralph Diaz, the Secretary of the CDCR, alleging violations of his 25 Eighth Amendment rights. Specifically, the complaint claims deliberate indifference to plaintiff’s 26 safety as an inmate at risk of being placed in the Non-Designated Programming Facility (NDPF) 27 at Chuckawalla Valley State Prison (CVSP). ECF No. 1. The undersigned recommended that the 28 complaint be dismissed without leave to amend for lack of jurisdiction, finding that plaintiff 1 lacked standing because the alleged harm based on a potential transfer to NDPF housing was too 2 speculative. ECF No. 7 at 5. On July 16, 2021, after an extension to file objections to the 3 Findings and Recommendations, plaintiff filed a declaration stating he was now housed in an 4 NDPF and that his safety had been placed in jeopardy by three separate incidents of violence in 5 his NDPF. ECF No. 14 at 2. Based on this declaration, the matter was referred back to the 6 undersigned. ECF No. 15 at 2. The undersigned then ordered plaintiff to file a First Amended 7 Complaint (FAC), ECF No. 16, which he did, ECF No. 17. The undersigned screened the FAC 8 and ordered that the case proceed on plaintiff’s Eighth Amendment claims against CDCR and 9 Diaz. Defendants have now moved to dismiss plaintiff’s FAC under Rule 12(b)(6). 10 B. First Amended Complaint 11 1. Protective Custody 12 Plaintiff alleges that in 2002, he was placed in protective custody housing because a 13 member of the Southern Hispanics prison gang attacked him under order from the Mexican Mafia 14 gang (EME). Id. at ¶ 1. At the time, inmates in protective custody were designated sensitive 15 needs inmates and assigned to Sensitive Needs Yards (SNY). Id. Plaintiff alleges that he 16 remained in an SNY until June 28, 2021, when he was transferred to an NDPF. Id. at ¶¶ 1, 13. 17 According to Plaintiff, despite the transfer from SNY to NDPF, the SNY designation is for life. 18 Id. at ¶ 24(i). 19 2. NDPF Housing 20 Plaintiff alleges that an NDPF is a yard where SNY and general population (GP) inmates 21 are housed together. Id. at ¶¶ 1, 3, 4, 15, 19. NDPF housing started as a pilot program in 2016 22 and continued as such until December 2017. Id. at ¶ 2. During the pilot program, there were 23 numerous incidents of reported violence in NDPFs. Id. at ¶ 4. Despite this, the NDPF program 24 was expanded state-wide in 2018. Id. at ¶ 5. In 2022, NDPF regulations were finally 25 promulgated, but did not address the issues with prior violence or take steps to create protections 26 from future violence, such as establishing screening criteria. Id. at ¶¶ 8-12. 27 Plaintiff further alleges that although the regulations indicate that NDPF is “an integrated 28 housing facility or institution established for inmates demonstrating a willingness to participate in 1 rehabilitative programs and conform to departmental policies,” and be “free from Security Threat 2 Group (STG) influence and behavior,” defendants are failing to screen individuals for willingness 3 to participate and disassociate from STG, and are instead forcing participation under threat of 4 disciplinary process for those who refuse such placement. Id. at ¶¶ 7, 10, 11. Plaintiff further 5 asserts that the regulations excluding placement of certain individuals from NDPF yards achieves 6 little to nothing where it excludes individuals who would already be ineligible for such placement 7 due to other reasons. Id. at ¶ 12. 8 3. Danger or Risk of Harm to Plaintiff 9 Plaintiff alleges that his transfer to NDPF housing places him at grave risk of harm or 10 death because it “allows active GP gang members the ability to attack SNY inmates such as 11 Plaintiff” and gang code requires gang members to “[a]ttack and if possible, kill all PC/SNY 12 inmates . . . [and] ex-gang members who have dropped-out, debriefed or been validated as 13 inactive.” Id. at ¶ 24(b)-(c). Plaintiff alleges he is an SNY inmate and gang drop out, who has 14 been debriefed and provided adverse information about gangs to authorities. Id. at ¶¶ 1, 23, 24. 15 Additionally, plaintiff alleges that about two weeks after he was transferred to NDPF housing, he 16 witnessed three separate incidents in one day in which GP inmates attacked SNY inmates. Id. at 17 ¶ 13. He also alleges that since his transfer to NDPF and through the date of the filing of his 18 FAC, “each time a GP active gang member is placed into CVSP’s NDPF he immediately attacks 19 the first NDPF/SNY inmate he encounters, thus placing Plaintiff’s safety in danger on a daily 20 basis.” Id. 21 4. Eighth Amendment Claims 22 Plaintiff sues the CDCR and Diaz, the former Secretary of CDCR in his official capacity, 23 for deliberate indifference to his safety in violation of the Eighth Amendment. ECF No. 17 at 24 ¶¶ 27, 29. Plaintiff alleges that CDCR is responsible for the creation and implementation of the 25 newly created NDPF housing designation throughout the state prison system. Id. at ¶¶ 1-12, 28. 26 He further alleges that CDCR Secretary Diaz is a proper defendant because Diaz inherited “his 27 predesessors’ [sic] policy, practice, custom, and regulations” and Diaz continued to enforce the 28 NDPF program. Id. at ¶ 29. 1 5. Relief Sought 2 The complaint does not seek damages. ECF No. 17 at 15. Plaintiff seeks declaratory 3 judgment in the form of a declaration that “it is a violation of the Eighth Amendment prohibition 4 against cruel and unusual punishment for Defendants’ failure to screen-out from NDPF housing 5 active GP gang members, Southern Hispanics, Sleeprs, EME, and Predators, whom all pose a 6 well-known and documented risk to the safety of PC/SNY inmages such as Plaintiff who is 7 housed in an NDPF[.]” Id. 8 C. Motion to Dismiss 9 Defendants move to dismiss plaintiff’s FAC under Rule 12(b)(6), arguing that CDCR has 10 not waived sovereign immunity and therefore plaintiff’s suit against CDCR is barred by the 11 Eleventh Amendment and should be dismissed with prejudice. ECF No. 25-1 at 9. Defendants 12 also argue that the claims against Diaz should be dismissed with prejudice because: (1) plaintiff 13 has not alleged that Diaz was involved in his transfer or ever had any personal knowledge that 14 plaintiff was in danger; (2) allegations that the NDPF policy is unconstitutional are insufficient to 15 impose liability on Diaz; and (3) plaintiff has not suffered harm or identified a credible threat of 16 harm beyond speculation. Id. at 9-16. 17 In opposition, plaintiff concedes that his claims against CDCR are barred under the 18 Eleventh Amendment and that CDCR should be dismissed with prejudice. ECF No. 28 at 9. 19 With respect to his claims against Diaz, plaintiff repeatedly asserts that (1) he is only suing Diaz 20 in his official capacity and (2) because he is only seeking declaratory relief, he does not have to 21 plead that he was harmed, that Diaz was personally involved, or that Diaz knew of the serious risk 22 to plaintiff’s health and safety. ECF No. 28 at 10-12, 14-15. Plaintiff argues that he has stated an 23 official capacity claim because he has alleged that the NDPF policy violates his constitutional 24 rights, that Diaz is a person with direct authority over and principal responsibility for enforcing 25 the NDPF, and the constitutional violation is ongoing. Id. at 14-20. 26 Given plaintiff’s concession with respect to CDCR, defendants’ reply focuses on the 27 Eighth Amendment claim against Diaz. ECF No. 30. Defendants argue that plaintiff’s statement 28 of the law regarding official capacity claims where a plaintiff only seeks declaratory relief is 1 incorrect. Id. at 3. Defendants assert that because plaintiff is seeking relief in the form of a 2 declaratory judgment, he must still plead all the elements of an Eighth Amendment claim, which 3 he cannot do. Id. at 3-6. Moreover, defendants contend that plaintiff’s claim is moot because he 4 has admitted in his opposition that he is no longer housed in NDPF housing and cannot, beyond 5 speculation, claim he ever will be. Id. at 6-7. 6 II. Legal Standard for Motion to Dismiss under Fed. R. Civ. P. 12(b)(6) 7 “The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency 8 of the complaint.” N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). 9 “Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts 10 alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 11 (9th Cir. 1990). 12 To survive dismissal for failure to state a claim, a complaint must contain more than a 13 “formulaic recitation of the elements of a cause of action;” it must contain factual allegations 14 sufficient to “raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 15 550 U.S. 544, 555 (2007). It is insufficient for the pleading to contain a statement of facts that 16 “merely creates a suspicion” that the pleader might have a legally cognizable right of action. Id. 17 (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-35 (3d ed. 18 2004)). Rather, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a 19 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 20 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 21 content that allows the court to draw the reasonable inference that the defendant is liable for the 22 misconduct alleged.” Id. 23 In reviewing a complaint under this standard, the court “must accept as true all of the factual 24 allegations contained in the complaint,” construe those allegations in the light most favorable to the 25 plaintiff and resolve all doubts in the plaintiff's favor. See Erickson v. Pardus, 551 U.S. 89, 94 26 (2007); Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010), 27 cert. denied, 564 U.S. 1037 (2011); Hebbe v. Pliler, 627 F.3d 338, 340 (9th Cir. 2010). However, 28 the court need not accept as true legal conclusions cast in the form of factual allegations, or 1 allegations that contradict matters properly subject to judicial notice. See Western Mining Council 2 v. Watt, 643 F.2d 618, 624 (9th Cir. 1981); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 3 (9th Cir.), as amended, 275 F.3d 1187 (2001). 4 Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines 5 v. Kerner, 404 U.S. 519, 520 (1972). Pro se complaints are construed liberally and may only be 6 dismissed if it appears beyond doubt that the plaintiff can prove no set of facts in support of his 7 claim which would entitle him to relief. Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014). 8 The court’s liberal interpretation of a pro se complaint, however, may not supply essential elements 9 of the claim that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th 10 Cir. 1982); see also Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992). A pro se litigant is entitled 11 to notice of the deficiencies in the complaint and an opportunity to amend unless the complaint's 12 deficiencies could not be cured by amendment. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 13 1987). 14 III. Request for Judicial Notice 15 As an initial matter, defendants seek judicial notice of a memorandum issued by the 16 CDCR, titled “Non-Designated Programming Facility Expansion for 2018,” dated December 12, 17 2017, based on incorporation by reference in the FAC. ECF 25-2 at 2. “[T]he ‘incorporation by 18 reference’ doctrine . . . permits us to take into account documents ‘whose contents are alleged in a 19 complaint and whose authenticity no party questions, but which are not physically attached to the 20 [plaintiff’s] pleading.’” Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (quoting Janas v. 21 McCracken (In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999)). However, 22 a defendant may only seek to incorporate a document into the complaint “if the plaintiff refers 23 extensively to the document or the document forms the basis of the plaintiff’s claim,” such that 24 the claim necessarily depends on the document. Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 25 988, 1002 (9th Cir. 2018). 26 Although plaintiff explicitly references the memorandum in his FAC, ECF No. 17 at ¶ 5, 27 and does not contest the authenticity of the document, the court declines to take judicial notice 28 because plaintiff only refers to the memorandum once and plaintiff’s claim that the NDPF policy 1 is unconstitutional does not depend on this memorandum. Moreover, it appears that defendants 2 offer this document to establish their versions of the facts, which they cannot do at the pleading 3 stage. See Khoja, 899 F.3d at 1002 (defendants cannot use the incorporation by reference 4 doctrine “to insert their own version of the events into the complaint to defeat otherwise 5 cognizable claims)”. 6 Accordingly, defendant’s request for judicial notice, ECF No. 25-2, is denied. 7 IV. Claim Against the CDCR is Barred by the Eleventh Amendment 8 Defendants move the court to dismiss CDCR with prejudice arguing such suit is barred by 9 the Eleventh Amendment. ECF No. 25-1 at 9. In opposition, plaintiff concedes that the claims 10 against CDCR are barred. ECF No. 28 at 9. The undersigned agrees and therefore recommends 11 dismissal of CDCR with prejudice. See Krainski v. Nev. Ex rel. Bd. of Regents of Nev. Sys. Of 12 Higher Educ., 616 F.3d 963, 967 (9th Cir. 2010) (“The Eleventh Amendment bars suits against 13 the State or its agencies for all types of relief.”); Brown v. California Dep’t. of Corr., 554 F.3d 14 747, 752 (9th Cir. 2009) (a suit against CDCR is barred by the Eleventh Amendment); see also 15 Will v. Mich. State Dep’t of Police, 491 U.S. 58, 65 (1989) (only “person[s]” may be sued for 16 depriving civil rights under § 1983, and state are not “person[s]” within the meaning of § 1983). 17 V. Official Capacity Claim Against the Secretary of CDCR1 18 For purposes of § 1983, state officials sued in their official capacity for prospective 19 injunctive relief are “persons,” see Will, 491 U.S. at 71 n.10, and the Eleventh Amendment does 20 not bar such suits, Doe v. Regents of the Univ. of Cal., 891 F.3d 1147, 1153 (9th Cir. 2018). “An 21 1 According to the California Department of Corrections and Rehabilitation website, Jeff 22 Macomber is the current CDCR Secretary. See https://www.cdcr.ca.gov/about-cdcr/secretary/. 23 This Court may take judicial notice of facts that are capable of accurate determination by sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201; see also City of Sausalito v. 24 O’Neill, 386 F.3d 1186, 1224 n.2 (9th Cir. 2004) (“We may take judicial notice of a record of a state agency not subject to reasonable dispute.”). Because Diaz is no longer the Secretary of 25 CDCR, by operation of the Federal Rules, his successor, Jeff Macomber, is “automatically 26 substituted as party” in his official capacity. Fed. R. Civ. P. 25(d) (when officials are sued in their official capacity in federal court and they die or leave office, their successors automatically 27 assume their roles in the litigation); see also Kohut v. Allison, No. 1:20-cv-1584 JLT CDB P, 2023 WL 11822206, at *12, 2023 U.S. Dist. LEXIS 238808, at *30 n.11 (E.D. Cal. June 30, 28 2023). The undersigned will direct the Clerk of the Court to make this substitution on the docket. 1 ‘official capacity’ lawsuit is simply another way of pleading an action against the employing 2 entity.” Shields v. Cannon, No. 2:11-cv-3185 JAM AC, 2015 WL 1258536, at *21, 2015 U.S. 3 Dist. LEXIS 33802, at *55 (E.D. Cal. Mar. 18, 2015). 4 In their motion to dismiss, defendants argue that the court should dismiss plaintiff’s claim 5 against Diaz because plaintiff has not alleged that Diaz was personally involved in any 6 constitutional violation. ECF No. 25-1 at 11. In opposition, plaintiff responds that he was not 7 required to allege personal involvement since he is only suing Diaz in his official capacity for 8 declaratory relief. ECF No. 28 at 11. In reply, defendants argue that even if plaintiff if suing 9 Diaz in his official capacity and only seeking declaratory relief, he must still plead the elements 10 of the underlying cause of action. ECF No. 30 at 3, 4. 11 While defendants are correct that declaratory relief can only be granted where a plaintiff 12 establishes a violation of his rights, their argument confuses the standards for an Eighth 13 Amendment violation with the pleading requirements applicable under § 1983 to claims for 14 damages. The Eighth Amendment issue will be addressed in the subsequent section of this 15 discussion. The personal involvement requirement is not an element of an Eighth Amendment 16 violation, but an element of individual liability under § 1983. See Barren v. Harrington, 152 F.3d 17 1193, 1194 (9th Cir. 1998) (“Liability under § 1983 must be based on the personal involvement 18 of the defendant”). 19 Plaintiff is correct in that, in an official capacity suit, it is not necessary to allege personal 20 involvement by the named official if plaintiff can identify an unconstitutional law or policy and 21 the named official can appropriately respond for the entity. See Colwell v. Bannister, 763 F.3d 22 1060, 1070 (9th Cir. 2014) (marks and citations omitted) (“[T]he current NDOC Director is still a 23 proper defendant in [plaintiff’s] claim for injunctive relief ‘because he would be responsible for 24 ensuring that injunctive relief was carried out, even if he was not personally involved in the 25 decision giving rise to the plaintiff’s claims.’”); Hartmann v. California Dep’t of Corr. & Rehab., 26 707 F.3d 1114, 1127 (9th Cir. 2013) (citation omitted) (a plaintiff seeking prospective declaratory 27 or injunctive relief “against a state is not required to allege a named official’s personal 28 involvement in the acts or omissions constituting the alleged constitutional violation.”). Instead, 1 to state an official capacity claim against a state official, a plaintiff must (1) identify and 2 challenge an unconstitutional law or policy, Hartmann, 707 F.3d at 1127; (2) name the official or 3 officials within the entity who can appropriately respond to the challenged law or policy, id.; and 4 (3) establish that the policy was the moving force behind the violation of his constitutional rights, 5 Kentucky v. Graham, 473 U.S. 159, 166 (1985). 6 Here, plaintiff seeks a declaratory judgment “declaring that it is a violation of the Eighth 7 Amendment prohibition against cruel and unusual punishment for [CDCR not to] screen-out from 8 NDPF housing active GP gang members, Southern Hispanics, Sleepers, EME, and Predators” 9 because they “all pose a well-known and documented risk to the safety of PC/SNY inmates such 10 as Plaintiff who is housed in an NDPF.” ECF No. 17 at 15. Plaintiff has identified a CDCR 11 policy he alleges is unconstitutional. Id. at 11. Plaintiff has also identified an official, the CDCR 12 Secretary, who is a proper defendant because that official is responsible for the implementation of 13 the alleged unconstitutional policy and can remedy the policy if it is deemed unconstitutional. 14 Id.; see Lujan v. Hixon, No. 1:24-cv-0187 SAB P, 2024 WL 2274444, at *5, 2024 U.S. Dist. 15 LEXIS 90195, at *13 (E.D. Cal. May 20. 2024) (citation omitted) (“The proper defendant for 16 injunctive relief in a suit seeking implementation of CDCR policy is the CDCR Secretary in an 17 official capacity.”). Plaintiff also alleges that the policy is the moving force behind the 18 constitutional violation, because his safety would not be at risk but for the NDPF policy and its 19 lack of screening. 20 As noted above, plaintiff must also present a viable claim that the policy amounts to 21 deliberate indifference to inmate safety under the Eighth Amendment. See Hartmann, 707 F.3d at 22 1127 (plaintiff must identify and challenge an unconstitutional law or policy); Dougherty, 654 23 F.3d at 900 (for a claim against an entity, the plaintiff must establish that the policy amounts to 24 deliberate indifference to the plaintiff’s constitutional right). Accordingly, the undersigned now 25 turns to the sufficiency of plaintiff’s substantive constitutional claim. 26 VI. Eighth Amendment 27 “[P]rison officials have a duty . . . to protect prisoners from violence at the hands of other 28 prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994) (quotation marks and citations 1 omitted). “[A] prison official violates the Eighth Amendment only when two requirements are 2 met. First, the deprivation alleged must be, objectively, ‘sufficiently serious’; a prison official’s 3 act or omission must result in the denial of ‘the minimal civilized measure of life’s necessities.’” 4 Id. at 834 (citations omitted). Only extreme deprivations are adequate to satisfy the objective 5 component of an Eighth Amendment claim regarding conditions of confinement. Rish v. 6 Johnson, 131 F.3d 1092, 1096 (9th Cir. 1997). Speculative fear of harm at the hands of other 7 prisoners does not constitute a sufficiently substantial risk of harm to future health and safety. 8 See, e.g., Williams v. Wood, 223 Fed. Appx. 670, 671 (9th Cir. 2007) (citing Farmer, 511 U.S. at 9 842). Second, “‘only the unnecessary and wanton infliction of pain implicates the Eighth 10 Amendment.’ To violate the Cruel and Unusual Punishments Clause, a prison official must have 11 a ‘sufficiently culpable state of mind,’” “one of ‘deliberate indifference’ to inmate health or 12 safety.” Id. (citations omitted). 13 A. Constitutionality of NDPF Policy 14 A challenge to the constitutionality of a policy can be mounted as a facial challenge or an 15 “as applied” challenge. See Wright v. Incline Village General Improvement Dist., 665 F.3d 1128, 16 1133 (9th Cir. 2011). Here, because it is not clear whether plaintiff is making one or both 17 challenges, the undersigned addresses both. 18 1. Facial Challenge 19 To prevail on a facial constitutional challenge, plaintiff must establish that the policy is 20 “unconstitutional in every conceivable application.” Wright, 665 F.3d at 1133. “A facial 21 challenge to a [policy] is, of course, the most difficult challenge to mount successfully, since the 22 challenger must establish that no set of circumstances exists under which the [policy] would be 23 valid. The fact that the [policy] might operate unconstitutionally under some conceivable set of 24 circumstances is insufficient to render it wholly invalid.” United States v. Salerno, 481 U.S. 739, 25 745 (1987). 26 Defendants argue that that the NDPF policy is not unconstitutional on its face where “[n]o 27 court presented with these constitutional claims has held the NDPF policy is unconstitutional.” 28 ECF No. 30 at 5. However, defendants overstate the relevance of the three cases they rely upon, 1 see id., each of which involved allegations that were found insufficient to state a claim that the 2 NDPF policy was unconstitutional. None of the cited cases involved a ruling on the merits of the 3 constitutional question. See Montalvo v. Diaz, No. 3:19-cv-0363 CAB JLB, 2020 WL 3469365, 4 at *7, 2020 U.S. Dist. LEXIS 111651, at *25-26 (dismissing with leave to amend Eighth 5 Amendment claims against two defendants, because plaintiff failed to allege sufficient factual 6 content to draw an inference that defendants acted with deliberate indifference to plaintiff’s safety 7 in implementing the NDPF policy); Mendez v. Diaz, No. 1:19-cv-1759 BAM PC, 2020 WL 8 1974231 at *5, 2020 U.S. Dist. LEXIS 72769 at *13 (on screening, dismissing Eighth 9 Amendment claim where plaintiff had not alleged sufficient facts to demonstrate the NDPF policy 10 would always violate the Eighth Amendment); Williams v. Allison, No. 1:19-cv-0371 BAM PC, 11 2021WL 5450201, at *7, 2021 U.S. Dist. LEXIS 225344, at *18 (at the screening stage, plaintiff 12 failed to allege that the NDPF policy violated his rights where the harm was a result of the action 13 of specific individual defendants, rather than the implementation of the policy). A finding that a 14 plaintiff has failed to state a claim is not equivalent to a holding on the merits that the NDPF 15 policy is not unconstitutional. 16 Nevertheless, to the extent plaintiff intends to mount a facial challenge, he fails. Plaintiff 17 has not alleged any facts demonstrating that the NDPF policy always violates the Eighth 18 Amendment, no matter who or what yards the policy is applied to. See generally ECF No. 17. 19 Moreover, as defendants point out, at least one court has found summary judgment for defendants 20 to be appropriate in a similar case because “Consolidated Plaintiffs have not demonstrated that 21 GP inmates, including Consolidated Plaintiffs, are at risk of serious harm if housed on an NDPF, 22 much less that Defendants were aware of a risk.” Cruz v. Diaz, No. 19-cv-1974 JST, 2022 WL 23 20184653, at *15, 2022 U.S. Dist. 243246 at *48 (N.D. Cal. July 25, 2022). A facial challenge 24 inevitably fails where the NDPF policy has been found constitutional as applied to some 25 individuals, because plaintiff would not be able to establish that there is no set of circumstances 26 under which the policy could be valid. See Wright, 665 F.3d at 1134 (“if we find that the 27 [policies] are constitutional as applied to [plaintiff], the facial challenge also fails”). 28 //// 1 2. As Applied Challenge 2 To prevail on an as applied challenge, plaintiff must show that the policy is 3 unconstitutional as applied to himself. Wright, 665 F.3d at 1133. A policy is unconstitutional as 4 applied “when it operates to deprive an individual of a protected right although its general validity 5 as a measure enacted in the legitimate exercise of state power is beyond question.” Little v. 6 Streater, 452 U.S. 1, 16 (1981) (citation omitted). In other words, plaintiff must allege that his 7 individual circumstances make the general application of the NDPF policy unconstitutional. See 8 Flores v. Diaz, No. 1:19-cv-1357 AWI GSA PC, 2020 WL 5235687, at *5, 2020 U.S. Dist. 9 LEXIS 160617, at *12 (E.D. Cal. Sept. 2, 2020); Mendez, 2020 WL 1974231 at *5, 2020 U.S. 10 Dist. LEXIS 72769 at *13-14. 11 As previously noted, plaintiff alleges that the CDCR Secretary, in the Secretary’s official 12 capacity, has placed plaintiff at risk of serious harm or injury by placing him in an NDPF without 13 screening out GP EME and Southern Hispanic gang members, Sleepers, and Predators who pose 14 a serious risk of harm to him because he is an ex-gang member who dropped out, has been 15 debriefed, and was previously attacked and endorsed for protected custody. ECF No. 17 at ¶¶ 1, 16 3-4, 8-11, 13-19, 22-25, 27. For the reasons stated below, plaintiff has adequately alleged an 17 objectively sufficiently serious risk of harm to himself, and that the CDCR Secretary, in the 18 Secretary’s official capacity, was aware of the serious risk of harm to plaintiff’s health and safety. 19 a. Sufficiently Serious Deprivation 20 i. Parties’ Positions 21 Defendants argue that plaintiff has not alleged a sufficiently serious threat to his safety 22 where “the only allegations that he faces a specific threat is that, upon his transfer to a NDPF yard 23 at Chuckawalla, he witnessed other alleged SNY inmates being attacked by alleged GP gang 24 members.” ECF No. 25-1 at 10-11. Relying primarily on Mendez, defendants argue that the risk 25 of harm to plaintiff is speculative because (1) plaintiff does not identify the inmate attackers or 26 victims, specify how he knows they are GP or SNY inmates, or explain how he knows the reasons 27 for the alleged attacks, id. at 15; (2) plaintiff’s claim of daily imminent danger of attack, based on 28 “information and belief” that every GP gang member assigned to an NDPF will identify, attack 1 and if possible kill him, is belied by the fact that plaintiff was not attached during the 725 days 2 which elapsed between his transfer and the filing of his FAC, id.; and (3) plaintiff does not allege 3 that the gang that previously attacked him exists at his current institution, id. at 16; see also ECF 4 No. 30 at 6, 15. 5 Relying primarily on Kester v. Diaz, No. 19-cv-4205 JST, 2019 WL 3997483, 2019 U.S. 6 Dist. LEXIS 144018 (N.D. Cal. Aug. 23, 2019), plaintiff responds that he pleaded a credible 7 threat based on his “individualized characteristic[,] which expose him to a pervasive risk of harm 8 from active GP EME, Southern Hispanic, sleepers, and predators,” and that he was previously 9 attacked based these individualized characteristics. ECF No. 28 at 13; see also id. at 19. 10 ii. Analysis2 11 In Mendez, the court concluded on screening that “Plaintiff ha[d] not alleged any facts to 12 support his conclusory allegations that the implementation of the NDPF policy would place 13 Plaintiff at serious risk of harm or injury” because he “ha[d] not alleged that he ha[d] any known 14 enemies, or that he was threatened with an assault by any person or group, that would have been, 15 or were housed, at the Avenal State Prison NDPF yard that Plaintiff was, or would have been, 16 housed at.” Mendez, 2020 WL 1974231 at 5, 2020 U.S. Dist. LEXIS 72769 at *14. In contrast, 17 in Kester, the court granted an ex parte motion for a temporary restraining order enjoining 18 defendants from placing plaintiff in an NDPF yard because plaintiff had demonstrated that he was 19 at risk of irreparable injury3—severe assault or death—if placed in an NDPF yard. Kester, 2019 20 WL 3997483 at *5; 2019 U.S. Dist. LEXIS 144018 at *10. There, plaintiff alleged, among other 21 things, that: he was a sex offender and gang drop-out; he helped law enforcement obtain 22 convictions for two GP inmates; two GP inmates had offered a bounty on his death; and while in 23

24 2 Although Mendez and Kester involved the sua sponte screening process for pro se prisoner claims or temporary restraining orders, rather than adjudication of a motion to dismiss, they offer 25 useful guidance on the issue before this court: whether plaintiff’s factual allegations establish an objectively sufficiently serious threat to plaintiff’s safety from placement in an NDPF yard. See 26 e.g., Montalvo, at *5-7 (discussing Mendez and Kester in the deliberate indifference analysis of a motion to dismiss). 27 3 Plaintiff is correct that to seek a declaratory judgment he does not need to allege or demonstrate irreparable injury, see Steffel v. Thompson, 415 U.S. 452, 472-73 (1974), however, he still needs 28 to allege an objectively sufficiently serious deprivation to state a deliberate indifference claim. 1 custody, he had been a victim of two violent attacks, which led to his endorsement of SNY 2 housing for protective custody purposes. Kester, 2019 WL 3997483 at *3, 5; 2019 U.S. Dist. 3 LEXIS 144018 at *7, 12. 4 The undersigned finds that plaintiff’s allegations bring this case closer to Kester than to 5 Mendez. Here, plaintiff has alleged more specific circumstances than the plaintiff in Mendez to 6 raise the risk of harm above the speculative level. As discussed above, plaintiff alleges that: 7 while incarcerated, the prison gang known as EME ordered an attack on plaintiff, ECF No. 17 at 8 ¶ 1; plaintiff was attacked by members of the Southern Hispanics prison gang affiliated with the 9 EME, id.; after his attack, he was placed into protective custody and classified as an SNY inmate, 10 id.; SNY inmates, include inmates with verified safety concerns and ex-gang members who have 11 dropped out, been debriefed or validated as inactive,” 4 id. at ¶¶ 14, 24(c); gangs consider 12 debriefers to be “rats” and “snitches,” id. at ¶¶ 19, 24(c); plaintiff is an ex-gang member who 13 dropped out, has been debriefed, and provided adverse information about gangs to authorities, id. 14 at ¶¶ 23, 24(c); he remained in SNY housing until June 2021 (for 19 years), when he was 15 transferred to an NDPF, id. at ¶¶ 1, 13; despite the transfer from SNY to NDPF, the SNY 16 designation is for life and plaintiff is therefore at ongoing risk of harm or death, id. at ¶ 24(i); the 17 NDPF policy “fails to identify and screen-out from the NDPF active GP gang affiliates, Sleepers, 18 and Predators, whom [sic] adhere to a gang code/prison politics which compels them to harm and 19 if possible kill all inmates such as Plaintiff who have been designated as SNY at any point in time 20 during their incarceration, id. at ¶ 25 (emphasis added); “any inmate who informed CDCR staff 21 that they do not wish disassociate from an STG was nevertheless forced onto an NDPF,” id. ¶ 11; 22

23 4 “Debriefing is a formal process by which a Security Threat Group (STG) coordinator/investigator determines whether an offender has abandoned STG affiliation and 24 dropped out of a STG.” Cal. Code Regs, tit.15 § 3000. Security Threat Group (STG) means any ongoing formal or informal organization, association, or group of three or more 25 persons which has a common name or identifying sign or symbol whose members and/or associates, individually or collectively, engage or have engaged, on behalf of 26 that organization, association or group, in two or more acts which include, planning, organizing, threatening, financing, soliciting or committing unlawful acts, or acts of 27 misconduct.” 28 Id. 1 two weeks after he was transferred to NDPF housing, he witnessed three separate incidents where 2 GP inmates attacked SNY inmates in one day, id. at ¶13; and since his transfer to NDPF until the 3 date of the filing of his FAC, June 23, 2023, “each time a GP active gang member is placed into 4 CVSP’s NDPF he immediately attacks the first NDPF/SNY inmate he encounters, thus placing 5 Plaintiff’s safety in danger on a daily basis,” id. 6 That plaintiff does not identify the attackers or victims by name or indicate how he knows 7 they were GP or SNY inmates does not undercut his allegations. The court can and does infer 8 that in the normal course of prison interactions, plaintiff was able to discern the attackers were GP 9 inmates and the victims were SNY inmates and that the attacks were because of their adverse 10 designations. Moreover, defendants do not cite any authority indicating that this level of 11 specificity is necessary to avoid dismissal of an Eighth Amendment claim. 12 Additionally, the lack of allegations of an attack since plaintiff’s placement in an NDPF 13 could simply mean that he has been lucky. In and of itself, this does not negate plaintiff’s 14 substantial allegations of risk of harm. Lastly, plaintiff has alleged sufficient facts for the court to 15 infer that EME and Southern Hispanics are gangs that permeate the CDCR prison system. See 16 ECF No. 17 at ¶¶ 16, 17 (Southern Hispanics and EME are STG-I and STG-II prison gangs).5 17 Accordingly, construing the pleading in the light most favorable to the party opposing the 18 motion and resolving all doubts in the pleader’s favor, the undersigned finds that plaintiff has 19 sufficiently pleaded that he is incarcerated under conditions posing an objectively sufficiently 20 substantial risk of serious harm. 21 /// 22 //// 23

24 5 Security Threat Group I (STG-I) and Security Threat Group II (STG-II) are “term[s] used to identify and prioritize the level of threat the group presents that affects the safety and security of 25 the institution and public safety.” Cal. Code Regs, tit.15 § 3000. “STG-I designation will be 26 reserved for STGs that pose the greatest of these threats. STG-I designation will include, but may not be limited to, traditional prison gangs or similar disruptive groups or gangs that the 27 department has certified to have a history and propensity for violence and/or influence over subservient STGs.” Id. (emphasis added). “The STG-II designation may include, but is not 28 limited to, traditional disruptive groups/street gangs.” Id. 1 b. Deliberate Indifference 2 Defendants argue that conclusory allegations that CDCR Secretary knew or should have 3 known of the danger to plaintiff are insufficient to state a cognizable claim for deliberate 4 indifference, and that plaintiff cannot establish that the risk of serious harm was “sufficiently 5 obvious” to the CDCR Secretary such that the Secretary “must have been aware” of it. ECF No. 6 25-1 at 10-11,13; ECF No. 30 at 4. In opposition, plaintiff responds that defendants are applying 7 the wrong test to an official capacity claim for deliberate indifference, and that he has sufficiently 8 alleged facts under the proper test. ECF No. 28 at 10-13. 9 For claims against a state official in their official capacity, it is not clear whether the test 10 for deliberate indifference is subjective or objective. Helling v. McKinney, 509 U.S. 25, 36 11 (1993) (“On remand, the subjective factor, deliberate indifference, should be determined in light 12 of the prison authorities’ current attitudes and conduct, which may have changed considerably 13 since the judgment of the Court of Appeals.”); Farmer, 511 U.S. 825, 845-46 & n.9 (suggesting 14 there is a subjective factor for a claim for prospective relief); Mendiola-Martinez v. Arpaio, 836 15 F.3d 1239, 1248 (9th Cir. 2016) (citation omitted) (recognizing that the Ninth Circuit has held 16 that an objective standard applies to claims against entities “for the practical reason that 17 government entities, unlike individuals, do not themselves have states of mind”). However, 18 because an official capacity claim is another way of pleading an action against an entity, and an 19 entity cannot have a state of mind, it follows that the test is an objective one. See Mendiola- 20 Martinez, 836 F.3d at 1248; see also Thomas v. Cox, 2018 WL 771319, at *3, 2018 U.S. Dist. 21 LEXIS 19816, at *6 (D. Nev. Feb. 7, 2018) (in an official capacity claim, the question is not what 22 the individual defendants knew, but rather whether the state entity that the defendant represents 23 knew and disregarding the substantial risk of serious harm to the prisoner). Nonetheless, given 24 the lack of clarity, the undersigned will consider both standards. For the reasons that follow, the 25 undersigned finds that plaintiff has sufficiently pled facts to support an inference that defendant 26 CDCR Secretary had actual knowledge, and therefore has satisfied either test. 27 To satisfy the subjective standard, the official must “both be aware of facts from which 28 the inference could be drawn that a substantial risk of serious harm exists, and he must also draw 1 the inference.” Farmer, 511 U.S. at 837. Plaintiff can establish this by showing that 2 implementation of the policy created a risk of harm that was “sufficiently obvious” to the CDCR 3 Secretary that he “must have known about it.” Id. at 842 (internal quotations omitted). To satisfy 4 the objective standard for entities, a § 1983 plaintiff must “establish that the facts available to 5 [entity] policymakers put them on actual or constructive notice that the particular omission [or 6 act] is substantially certain to result in the violation of the constitutional right of their 7 citizens.” Castro v. County of Los Angeles, 833 F.3d 1060, 1076 (9th Cir. 2016) (emphasis in 8 original) (quoting City of Canton v. Harris, 489 U.S. 378, 390 (1989)). 9 Here, plaintiff alleges that “pursuant to multiple memorandums and court decisions, 10 [d]efendant CDCR is well aware that inmates whom [sic] have been given the designation ‘SNY’ 11 have safety concerns and should be segregated from GP active gang members, STGs, Sleepers, 12 and Predators.” ECF No. 17 at ¶ 14. Among other memoranda and cases, Plaintiff cites Toscano 13 v. Lewis, 2015 WL 4940832, 2015 U.S. Dist. LEXIS 109810 (N.D. Cal. Aug. 19, 2015) and 14 “Sensitive Needs Yard Placement Consideration for Validated Prison Gang Dropouts” dated 15 February 14, 2012. Id. In Toscano, a prisoner brought a § 1983 suit against more than 80 CDCR 16 employees in their individual and official capacity, including the CDCR director. Toscano v. 17 Lewis, No. 3:12-cv-05893 EMC, Amended Complaint, Docket 20 at 1, 4-8. On summary 18 judgment, the court stated the following undisputed facts: within the California prison system 19 “[a]n SNY is a yard reserved for inmates who have specific, verified safety concerns, and for 20 inmates who have completed the gang debriefing process and are in need of protective housing”; 21 “[i]nactive gang members and associates who have not debriefed and have not been designated as 22 gang drop outs generally cannot be placed in an SNY”; and, according to a CDCR Division of 23 Adult Institutions memorandum dated February 14, 2012, “[t]his policy is essential to safeguard 24 inmates housed in sensitive needs yards, including debriefers,” “there is a very real danger that 25 ‘sleeper’ inmates who are still participating in gang activity will try to gain access to sensitive 26 needs yards to carry out assaults on debriefers on behalf of prison gangs. Gangs consider 27 debriefers to be ‘snitches[,]’” and “CDCR must ensure that ‘sleeper’ inmates do not get 28 transferred to sensitive needs yards, because they will harm if not kill inmates there who have 1 debriefed.” Toscano, 2015 WL 4940832, at *3-4, 2015 U.S. Dist. LEXIS 109810, at *10-13. 2 Moreover, plaintiff alleges that defendant CDCR Secretary was put on notice of the risk to 3 plaintiff and other similarly situated individuals’ health and safety “via exhaustion of inmate 4 administrative grievances, phone calls, emails, petitions, public [and] written comments within 5 [the NDPF policy regulations], and other means of communication from concerned citizens, 6 friends, and family of CDCR prisoners subject to the NDPF housing.” ECF No. 17 at ¶ 31. 7 For all these reasons, plaintiff has sufficiently stated an Eighth Amendment claim against 8 the CDCR Secretary, now Jeff Macomber, in the Secretary’s official capacity. 9 VII. Mootness 10 When plaintiff filed the FAC, he was housed in an NDPF at CVSP. See ECF No. 17 at 1, 11 3. Defendants now argue that plaintiff’s claim for declaratory relief is moot because, in his 12 opposition brief, plaintiff noted that his facility was being closed and that he was going to be 13 transferred to a different facility and could not allege that he would once again be subject to the 14 NDPF policy. ECF No. 30 at 6-7. 15 Subsequently, plaintiff was transferred to CDCR’s Substance Abuse Treatment Facility. 16 ECF No. 31 (notice of change of address). Because plaintiff alleges that the NDPF policy has 17 been implemented system wide across all CDCR prisons, his claim for declaratory relief based on 18 the NDPF policy is not moot. See Nelson v. Heiss, 271 F.3d 891, 897 (9th Cir. 2001) (the 19 transfer of an inmate to a new prison will usually moot a challenge to conditions at a “particular 20 facility”); cf. Walker v. Beard, 789 F.3d 1125, 1132 (9th Cir. 2015) (when an inmate attacks a 21 “system wide” policy, his transfer to a new prison will not moot his conditions of confinement 22 claims). 23 VIII. Plain Language Summary for this Order for a Pro Se Litigant 24 The magistrate judge is recommending that CDCR be dismissed as a defendant, because, 25 as you acknowledged, the CDCR cannot be sued. It is recommended that your claim for 26 declaratory relief, on grounds that the NDPF policy violates the Eighth Amendment, proceed 27 against the CDCR Secretary in his official capacity. 28 //// 1 IX. Conclusion 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. Defendants’ Request for Judicial Notice (ECF No. 25-2) is DENIED; and 4 2. Ralph Diaz is substituted for the current CDCR Secretary, Jeff Macomber. The Clerk of 5 || the Court is directed to update the docket accordingly. 6 IT IS HEREBY FURTHER RECOMMENDED that: 7 1. Defendants’ motion to dismiss (ECF No. 25) be GRANTED in part and DENIED in part 8 | as follows: 9 a. Granted as to plaintiff's Eighth Amendment claim against defendant CDCR; 10 b. Denied as to plaintiff's Eighth Amendment claim against defendant CDCR 11 Secretary in their official capacity. 12 2. Dismissal of CDCR should be with prejudice. 13 3. The Clerk of the Court be directed to substitute defendant Jeff Macomber for Ralph Diaz. 14 These findings and recommendations are submitted to the United States District Judge 15 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days 16 | after being served with these findings and recommendations, any party may file written 17 || objections with the court and serve a copy on all parties. Such a document should be captioned 18 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 19 || objections shall be served and filed within fourteen days after service of the objections. The 20 || parties are advised that failure to file objections within the specified time may waive the right to 21 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 22 | DATED: October 22, 2024 * 23 Lhar—e_ ALLISON CLAIRE 24 UNITED STATES MAGISTRATE JUDGE 25 26 27 28 19