1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALLEN HAMMLER, No. 2:19-cv-1423-EFB P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 E. COTA, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in this action brought pursuant to 18 42 U.S.C. § 1983. In addition to filing a complaint, he has filed an application for leave to 19 proceed in forma pauperis pursuant to 28 U.S.C. § 1915 and a motion to file a complaint in excess 20 of the court’s e-filing limit of 25 pages. ECF Nos. 6, 12. 21 I. Application to Proceed In Forma Pauperis 22 Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). 23 Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect 24 and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. 25 § 1915(b)(1) and (2). 26 II. Motion to Exceed E-Filing Page Limit 27 Plaintiff filed his complaint by providing it to CDCR for e-filing with the court, pursuant 28 to the March 1, 2016 Standing Order of the Eastern District of California (“In Re: Procedural 1 Rules for Electronic Submission of Prisoner Litigation Filed by Plaintiffs Incarcerated at 2 Participating Penal Institutions”). ECF Nos. 1, 2-2. Under the Standing Order, complaints 3 submitted thereunder may not exceed 25 pages. If a plaintiff needs more than 25 pages, “he or 4 she must submit a motion demonstrating the grounds for the need to exceed the page limitation, 5 along with the proposed complaint, to the Court for permission to exceed the page limit.” 6 Plaintiff’s complaint is 35 pages long. He has submitted the motion required by the Standing 7 Order, and the court will grant the motion and accept the complaint. 8 III. Screening 9 A. Legal Standards 10 Federal courts must engage in a preliminary screening of cases in which prisoners seek 11 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 12 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 13 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 14 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 15 relief.” Id. § 1915A(b). 16 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 17 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 18 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 19 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 20 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 21 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 22 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 23 U.S. 662, 679 (2009). 24 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 25 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 26 action.” Twombly, 550 U.S. at 555-57. In other words, “[t]hreadbare recitals of the elements of a 27 cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 678. 28 ///// 1 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 2 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 3 content that allows the court to draw the reasonable inference that the defendant is liable for the 4 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 5 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 6 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 7 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 8 B. Plaintiff’s Allegations 9 Plaintiff’s claims appear to revolve around the issuance of three Rules Violation Reports 10 (“RVRs”; i.e., disciplinary charges) to him by various correctional officers while plaintiff was 11 incarcerated at California State Prison, Sacramento. Plaintiff claims that these RVRs, issued by 12 defendant correctional officers E. Cota, I. Salcedo, J. Hubbard, and D. Case, were all false. ECF 13 No. 13. 14 The first RVR, issued by defendant Cota, arose from an incident in which plaintiff refused 15 to relinquish Cota’s handcuffs back to Cota after Cota escorted him from a mental health group to 16 his cell. Id. at 4-10. Plaintiff claims that Cota and another correctional officer, Reilly (who is not 17 named as a defendant), had subjected him to force1 earlier in the escort and so he refused to return 18 the handcuffs until he was given a “use of force video interview.” Id. at 7-8. Also, plaintiff 19 claims that he had told Cota and Reilly that he was suicidal “and should not be placed inside the 20 cell but taken to be evaluated at once.” Id. at 7. Plaintiff kept the handcuffs additionally to force 21 the officers to bring mental health staff to his cell to evaluate him. Id. at 7-8. 22 Cota issued an RVR to plaintiff, presumably for refusing to give back the handcuffs. Id. 23 at 8. According to plaintiff, Cota knew that he could not issue the RVR to plaintiff because 24 plaintiff had reported that he was suicidal before refusing to return the cuffs. Id. To cover the 25 illegitimacy of the RVR, Cota lied in responding to questions submitted by plaintiff prior to the 26 hearing. Id. (Plaintiff does not provide the question or questions that Cota allegedly responded 27
28 1 Plaintiff does not assert any claim based on this alleged use of force. 1 falsely to.). Plaintiff also alleges that defendant supervising officer Mccarvel, in answering 2 questions related to the RVR, “downplayed the use of force” in order to cover for Cota and 3 minimize his own failure to initiate a use-of-force interview. Id. at 9. 4 Plaintiff was found not guilty of the RVR charge by hearing officer R. Heise, whose stated 5 reason was “in the interest of justice.” Id. at 11. According to plaintiff, however, Heise’s real 6 reason for finding him not guilty was “the CDCR memorandum dated 9/11/15 which plaintiff had 7 presented to him, pointing out that it precluded issuance of any RVR.” Id. Heise did not state 8 this “actual” reason because it would indicate that the RVR had been issued “in retaliation.” Id. 9 Plaintiff alleges that Heise’s omission of the memorandum from “the evidence portion of the 10 RVR” violated due process, but he has not named Heise as a defendant in this action. Id. 11 The second RVR, issued by defendant Salcedo, arose from an incident in which Salcedo 12 asked plaintiff if he would accept a cellmate, and plaintiff responded that he had not yet “gone to 13 the committee (ICC)” and thus could not be given a cellmate. Id. at 12. According to plaintiff, 14 Salcedo had been sent by defendant J. Burnes, and Salcedo told plaintiff that he would tell Burnes 15 what plaintiff had told him. Id. 16 Salcedo then issued plaintiff an RVR, with Burnes “signing off on it,” despite both 17 knowing that plaintiff had not gone to ICC yet and thus could not be changed from single-cell 18 status. Id. In the RVR, Salcedo falsely stated that plaintiff had refused a cellmate because he 19 didn’t “know anybody,” not because he had not gone to ICC yet. Plaintiff believed that Burnes 20 had sent Salcedo to plaintiff’s cell and signed off on the RVR to retaliate against plaintiff and 21 “place him on appliance restriction via the RVR” because plaintiff had threatened to sue Burnes 22 for not providing plaintiff with his television. Id. at 13-15. 23 Plaintiff contacted Salcedo later the same day and “had him sign a CDCR 22 form 24 acknowledging that he had falsely accused plaintiff.” Id. at 14. Nevertheless, Salcedo did not 25 withdraw the RVR. Id. 26 Defendant Tumacder, a correctional supervisor, held the hearing on Salcedo’s RVR on 27 October 6, 2018 at plaintiff’s cell door. Id. at 15. Tumacder told plaintiff he was finding him not 28 guilty based on the form 22 signed by Salcedo. Id. at 15-16. However, when plaintiff was later 1 provided the hearing results, he discovered that Tumacder had intentionally omitted any mention 2 of the form 22 “in line with the code of silence” to shield Salcedo. Id. at 16-17. Plaintiff asserts 3 that this omission violated his procedural and substantive due process rights, constituted 4 retaliation “for his asserting the right to have the 22 form considered in the hearing” and “for 5 asserting his right to voice his concerns in Salcedo’s actions.” Id. at 17. 6 The third RVR, authored by defendant Case and “co-signed” by defendant Hubbard, arose 7 from an incident in which plaintiff refused to exit his cell as ordered by Case and Hubbard. 8 Plaintiff claims that Case and Hubbard issued the RVR “to justify having left plaintiff unattended 9 and to retaliate against him for asserting the right to have them follow suicide prevention and 10 response procedures of CCR § 3365 which uses mandatory language that created a liberty interest 11 for due process attaching.” Id. at 19. According to plaintiff, on September 15, 2018 he told 12 “Psych-Tech” Selliers that he was suicidal, “a statement that mandates that he be seen and 13 evaluated by a psychologist forthwith.” Id. at 18-19. But plaintiff did not want to exit his cell 14 because he was afraid of being assaulted by correctional officers, so he told Selliers and 15 correctional officer Cooper that he would not leave the cell until the psychologist arrived, “an act 16 that precluded C/Os using force to remove him until cleared to do so by a psychologist and 17 warden, and further mandated that a C/O be posted at the cell to maintain visual, keep watch over 18 him.” Id. at 19. 19 Hubbard, Case, and other correctional officers came to plaintiff’s cell, and Hubbard 20 ordered plaintiff to place his hands out of the food port to be handcuffed. Id. at 20. Plaintiff 21 refused, and Hubbard “opened the food port anyway and spoke to plaintiff aggressively.” Id. 22 After some verbal back-and-forth, plaintiff showed the officers “the Coleman Act’s Use of Force 23 mandates” and told them to follow procedure. Id. at 20-21. He told them that an officer was 24 required to stay by the cell and “if you don’t, I’ll sue you.” Id. at 21. Case accused plaintiff of 25 “manipulating staff.” Id. Plaintiff showed the officers “the CDCR memo dated 9/11/15 and told 26 them that he could not be issued an RVR for refusing to exit his cell.” Id. The officers left. Id. 27 No psychologist came to evaluate plaintiff. Id. at 21-22. Selliers later told plaintiff that the 28 officers had told the psychologist that plaintiff had said he was not really suicidal but only trying 1 to inconvenience them. Id. at 22. Plaintiff claims that this conduct by the officers violated his 2 free speech rights because it prevented him from speaking to the psychologist. Id. at 23. 3 Case issued an RVR to plaintiff, co-signed by Hubbard and “signed off on” by Burnes. 4 Id. Case and Hubbard falsely claimed that plaintiff had admitted to claiming to be suicidal to 5 inconvenience them. Plaintiff concludes that the RVR “was issued in retaliation and in operation 6 violated due process, and the First Amendment substantively.” Id. at 22-23. 7 Plaintiff also claims that correctional officers M. Rodriguez and E. Garza falsified an 8 “RVR Supplemental dated 9/20/18” (it is unclear which RVR this “supplemental” pertained to) to 9 state that Garza had acted as investigative employee for plaintiff “where she did not and took no 10 part in the process” and to state that plaintiff requested no witnesses (presumably at an upcoming 11 hearing). Id. at 17-18. Plaintiff states that this conduct was retaliatory but provides no facts 12 about what plaintiff believes these defendants were retaliating against him for. Id. 13 Plaintiff further alleges that Scott Kernan, former Secretary of the California Department 14 of Corrections and Rehabilitation (“CDCR”), and “John Doe,” the current Secretary of CDCR2, 15 along with supervisors Burnes, S. Tumacder, and Mccarvel “maintained the unconstitutional 16 custom and practices of allowing their supervisee(s), agent(s), and under-rank(s) to go unchecked 17 and have encouraged the conduct to ensure a continued trend of the same conduct in the future,” 18 such conduct consisting of a “code of silence” and the issuing of “false RVRs to . . . cover for 19 their fellow C/Os.” Id. at 10. Under this “well documented pattern of conduct,” correctional staff 20 must “do what he/she can to shield a fellow CDCR employee from complaints, etc. that in any 21 way could adversely impact another or place their employment in danger.” Id. 22 C. Analysis 23 On the above-summarized allegations, plaintiff premises six constitutional claims: (1) 24 “violation of First Amendment (Substantive)”; (2) “violation of First Amendment, Retaliation”; 25 (3) violation of substantive due process; (4) violation of procedural due process; (5) violation of 26
27 2 The court notes that the identity of the current CDCR Secretary – Ralph Diaz – is publicly-available information. Cal. Dep’t of Corr. and Rehab. Website, cdcr.ca.gov (last 28 checked Sept. 28, 2019). 1 equal protection; and (5) cruel and unusual punishment. The court will address each claim in 2 turn. 3 1. First Amendment (Substantive) 4 Plaintiff asserts this claim against defendants Cota, Burnes, Mccarvel, Tumacder, Garza, 5 Rodriguez, and Hubbard for “reproaching [plaintiff] for exercising that right to free speech in 6 each of the instances alleged,” but effectively leaves it up to the court to determine which 7 allegations against these defendants plaintiff believes violated his right to free speech. ECF No. 8 13 at 25. A plaintiff asserting a (non-retaliation) First Amendment claim must allege facts 9 showing that: (1) the plaintiff was engaged in constitutionally protected free speech activity; (2) 10 the defendant’s actions caused an injury that would chill a person of ordinary firmness from 11 continuing in that activity; and (3) inhibiting the plaintiff’s constitutionally-protected speech was 12 a substantial or motivating factor for the defendant’s conduct. Howard v. Rea, No. CV 02-6255- 13 BR, 2005 U.S. Dist. LEXIS 43798, at *17 (D. Or. June 27, 2005) (citing Mendocino Envtl. Ctr. V. 14 Mendocino Cnty., 192 F.3d 1283, 1300-01 (9th Cir. 1999)). 15 Plaintiff alleges that Cota filed a false RVR against him (of which plaintiff was found not 16 guilty) and that Cota lied in responding to questions submitted by plaintiff before the RVR 17 hearing. These facts do not support a free-standing First Amendment claim. Holguin v. Wicks, 18 No. 1:16-cv-03460DAD-BAM (PC), 2017 U.S. Cist. LEXIS 80571, at *8-9 (E.D. Cal. May 24, 19 2017) (“Even the falsification of a disciplinary report does not state a stand-alone constitutional 20 claim.”); Dawson v. Beard, No. 1:15-cv-01867 DLB, 2016 U.S. Dist. LEXIS 38115, at *12-13 21 (E.D. Cal. Mar. 23, 2016) (“The issuance of a false RVR does not, in and of itself, support a 22 claim under section 1983.”). Because this claim fails as a matter of law and cannot be cured by 23 additional or different factual allegations, the “substantive” First Amendment claim against 24 defendant Cota should be dismissed without leave to amend. See Lopez v. Smith, 203 F.3d 1122, 25 1130 (9th Cir. 2000) (leave to amend must be granted where the complaint’s deficiencies can be 26 cured by the allegation of other facts). Plaintiff’s allegations against Mccarvel, Burnes, Garza, 27 and Rodriguez are also based on alleged dishonesty in the creation of or prosecution of an RVR 28 ///// 1 and thus also must be dismissed without leave to amend. To the extent that plaintiff’s claim 2 against Hubbard is based on plaintiff’s claim that he lied in an RVR, it also fails. 3 Plaintiff also asserts that defendant Hubbard deprived him of his constitutional free speech 4 rights by telling the psychologist that plaintiff did not really need to speak with her. Plaintiff has 5 not stated facts showing that Hubbard did this in order to inhibit plaintiff’s speech or that 6 Hubbard’s conduct would chill a person of ordinary firmness from speaking to the psychologist. 7 The claim must therefore be dismissed with leave to amend. 8 Plaintiff alleges that Tumacder violated his First Amendment rights by not including 9 Salcedo’s Form 22 response in his statement of reasons for finding plaintiff not-guilty of 10 Salcedo’s RVR. The court fails to see how this conduct impacted plaintiff’s speech, and plaintiff 11 has not presented an explanation. Accordingly, the free speech claim against Tumacder should be 12 dismissed with leave to amend. 13 2. First Amendment (Retaliation) 14 Plaintiff alleges that Cota, Burnes, Mccarvel, Tumacder, Garza, Rodriguez, Hubbard, 15 Case, and Salcedo retaliated against him in violation of the First Amendment for asserting his due 16 process rights and for “exercising the right to voice his sentiment on all things worldly and 17 supernatural.” 18 To state a claim for retaliation in violation of the First Amendment, a prisoner must allege 19 facts supporting five elements: (1) that a state actor took some adverse action against him (2) 20 because of (3) his protected conduct, (4) that such action chilled his exercise of his First 21 Amendment rights, and (5) that the action did not reasonably advance a legitimate correctional 22 goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). The plaintiff need not 23 demonstrate that his speech was actually inhibited or suppressed, but merely that the defendant’s 24 conduct was such as would chill or silence a person of ordinary firmness from future First 25 Amendment activities. Id. at 568-69. Conduct protected by the First Amendment includes 26 communications that are “part of the grievance process.” Brodheim v. Cry, 584 F.3d 1262, 1271 27 n.4 (9th Cir. 2009). 28 ///// 1 Liberally construed, and solely for the limited purposes of screening under § 1915A, 2 plaintiff has stated potentially cognizable retaliation claims against Cota, Burnes, Salcedo, 3 Hubbard and Case. 4 Plaintiff has not stated facts that support a retaliation claim against Mccarvel, Tumacder, 5 Garza, and Rodriguez. Plaintiff alleges that Mccarvel “downplayed the use of force” he claims 6 was used against him by Cota in order to cover for Cota and to minimize his own failure to 7 initiate a use-of-force interview. He does not allege that Mccarvel did this because of plaintiff’s 8 protected conduct and that it had a chilling effect on plaintiff’s exercise of his First Amendment 9 rights. 10 Plaintiff alleges that Tumacder did not include an item of evidence in his memorandum 11 finding plaintiff “not guilty” of Salcedo’s RVR in order to cover for Salcedo and did so in 12 retaliation for plaintiff “asserting the right to have” the evidence considered in the hearing and 13 “for asserting his right to voice his concerns in Salcedo’s actions.” But there is no allegation that 14 Tumacder did not consider the evidence in the hearing or that the omission of the evidence from 15 the “not guilty” finding in any way prevented plaintiff from voicing any concerns. On the facts 16 alleged, the court fails to see what adverse action Tumacder took against plaintiff or how that 17 action had a chilling effect on plaintiff’s exercise of his First Amendment Rights. 18 Plaintiff alleges that defendants Garza and Rodriguez falsified an “RVR Supplemental” to 19 retaliate against him but does not allege any facts from which a factfinder could conclude that 20 either defendant was aware of any protected conduct by plaintiff, that they falsified the RVR 21 Supplemental in response to that conduct, and that the falsification had a chilling effect on 22 plaintiff’s exercise of his First Amendment rights. 23 Accordingly, the retaliation claims against Mccarvel, Tumacder, Garza, and Rodriguez 24 must be dismissed with leave to amend. 25 3. Substantive Due Process 26 In cases dealing with allegedly abusive action by a government official, “only the most 27 egregious official conduct” violates the substantive component of the Due Process Clause. 28 County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). Such conduct “shocks the conscience” 1 and “violates the decencies of civilized conduct,” for example, the forced pumping of a suspect’s 2 stomach. Id. at 846-47. Behavior most likely to violate substantive due process is “conduct 3 intended to injure in some way unjustifiable by any government interest.” Id. at 849. Plaintiff 4 alleges no facts against any defendant that are egregious enough to violate substantive due 5 process. See Saenz v. Spearman, No. CV-1:09-00557-GSA-YNP (PC), 2009 U.S. Dist. LEXIS 6 70338 (E.D. Cal. July 29, 2009) (“The Due Process Clause does not provide a guarantee that 7 Plaintiff will be free from fabricated accusations of disciplinary violations.”) Thus, his 8 substantive due process claims (against Cota, Burnes, Mccarvel, Tumacder, Garza, Rodriguez, 9 Hubbard, Case, and Salcedo) must be dismissed with leave to amend. 10 4. Procedural Due Process 11 The Due Process Clause of the Fourteenth Amendment protects prisoners from being 12 deprived of liberty without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). 13 In order to state a cause of action for deprivation of due process, a plaintiff must first establish the 14 existence of a liberty interest for which the protection is sought. Liberty interests may arise from 15 the Due Process Clause itself or from state law. Hewitt v. Helms, 459 U.S. 460, 466-68 (1983). 16 Liberty interests created by state law are generally limited to freedom from restraint which 17 “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of 18 prison life.” Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995). 19 While plaintiff lacks a right protected by the Due Process Clause to be free from 20 fabricated disciplinary charges, he is entitled to certain procedural protections in the adjudication 21 of disciplinary charges that result in the deprivation of a liberty interest. Wolff, 418 U.S. at 556. 22 These protections are: (1) written notice of the charges; (2) at least 24 hours between notice and 23 the hearing; (3) a statement by the factfinder of the evidence relied on and the reasons for the 24 discipline; (4) the right to present evidence and witnesses, when such would not be unduly 25 hazardous to institutional safety or correctional goals; and (5) legal assistance if the prisoner is 26 illiterate or the issues are legally complex. Id. at 563-71. 27 Plaintiff alleges that Cota deprived him of procedural due process by issuing him an RVR 28 that Cota knew could not be issued and in “lying where he answered ‘no’ to the Question No. 1 of 1 the RVR Supplemental” (not provided in the complaint). ECF No. 13 at 27. These allegations do 2 not make out a violation of plaintiff’s procedural due process rights in connection with the RVR, 3 listed above. There is no claim in the complaint that plaintiff did not receive notice 24 hours 4 before the hearing, a statement by the factfinder of the reasons for the discipline (plaintiff was not 5 actually subjected to discipline at all), the opportunity to present evidence and witnesses, or legal 6 assistance (if such assistance was required). 7 Plaintiff alleges that Mccarvel deprived him of procedural due process “via his having 8 been involved in the incident [with Cota] and knowing that no RVR could be issued” yet allowing 9 the RVR to be adjudicated. Again, there is no due process right to be free from a false RVR, and 10 plaintiff does not allege that any of the procedural protections mandated by the 14th Amendment 11 were not provided to him in connection with Cota’s RVR. 12 Plaintiff’s procedural due process claims against Salcedo, Burnes, Rodriguez, Garza, 13 Case, and Hubbard similarly hinge on his claim that these defendants lied in their assertions 14 against him in disciplinary actions and thus also fail to state a procedural due process claim. 15 Plaintiff claims that Tumacder violated his procedural due process right to a statement by 16 the factfinder of the evidence relied on because Tumacder did not include Salcedo’s Form 22 in 17 his statement finding plaintiff not guilty. Due process does require a statement “as to the 18 evidence relied upon and the reasons for the disciplinary action taken.” Wolff, 418 U.S. at 563. 19 This is to “protect the inmate against collateral consequences based on a misunderstanding of the 20 nature” of the disciplinary proceeding and to provide a record that state officials, the public, and 21 the courts can scrutinize, thereby encouraging prison administrators to act fairly. Id. at 565. But 22 plaintiff alleges that no disciplinary action was taken against him – Tumacder found plaintiff not 23 guilty of the disciplinary charge. As there was no disciplinary action, plaintiff was not deprived 24 of any interest protected by due process, and he was thus not entitled to the type of written 25 statement required by Wolff. 26 Plaintiff’s procedural due process claims must therefore be dismissed with leave to 27 amend. 28 ///// 1 5. Equal Protection 2 The Equal Protection Clause of the 14th Amendment states that no State shall “deny to 3 any person within its jurisdiction the equal protection of the laws.” This command “is essentially 4 a direction that all persons similarly situated should be treated alike.” City of Cleburne v. 5 Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Generally, government action is presumed valid 6 under the clause and will be sustained if it’s differential treatment is rationally related to a 7 legitimate state interest. Id. at 440. If such differential treatment is based on a certain suspect 8 classifications, however, it will be sustained only if narrowly tailored to a compelling state 9 interest. Id. 10 Plaintiff alleges broadly that Cota, Burnes, Mccarvel, Tumacder, Garza, Rodriguez, 11 Hubbard, Case, and Salcedo deprived him of equal protection “via their actions of denying him 12 the use, employment of, protection of, and or processes of those laws, procedures, and 13 regulation(s) alleged, supra, and although allotted to each and every other prisoner in the state of 14 California held in CDCR’s custody, and similarly situated.” ECF No. 13 at 30. The complaint 15 contains no facts showing that plaintiff was singled out and treated disparately (or that such 16 treatment was based on a suspect classification). Accordingly, the equal protection claim must be 17 dismissed with leave to amend. 18 6. Cruel and Unusual Punishment 19 Lastly, plaintiff alleges that defendants Kernan, Doe (present CDCR Secretary), Burnes, 20 Tumacder, and Mccarvel violated his Eighth Amendment right to be free from cruel and unusual 21 punishment by allowing their subordinate officers (Cota, Garza, Rodriguez, Hubbard, Case, 22 Salcedo, Burnes, Tumacder and Mccarvel) to violate due process and cover up for each other 23 (which plaintiff refers to as the “Code of Silence”). 24 It appears that plaintiff has mischaracterized this claim as one under the Eighth 25 Amendment, as he has not alleged any Eighth Amendment violations against the subordinate 26 defendants in this action. Rather, plaintiff seeks to hold these supervisory officers accountable 27 for allowing the conduct of their inferior officers in allegedly depriving plaintiff of his rights 28 under the First Amendment and the Due Process Clause. Liability may be imposed against these 1 supervisors only if each was personally involved in the alleged constitutional violation and there 2 is a sufficient causal connection between the supervisor’s conduct (or failure to act) and the 3 violation. Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989). 4 To the extent plaintiff has alleged facts showing the direct personal involvement of 5 defendants Burnes, Tumacder, and Mccarvel in the alleged constitutional violations, the court has 6 addressed those claims above. The complaint does not contain facts showing that these 7 individuals, as supervisors, instituted or enforced a policy or custom leading to the violation of 8 plaintiff’s rights, or failed to train their officers to such an extent as to create a situation where 9 plaintiff’s rights were likely to be violated, or otherwise violated plaintiff’s rights through their 10 actions or failures to act. Instead, the complaint contains two-and-a-half pages of “naked 11 assertions” and “labels and conclusions” without supporting facts. ECF No. 13 at 30-32 (e.g., 12 defendants “knew or had reason to know that plaintiff would have his constitutional rights 13 violated” but did not “act to correct the unconstitutional pattern of conduct,” defendants “allowed 14 their agents to be untrained, undisciplined and amenable to the Code of Silence”). Plaintiff must 15 state facts specific to his case which, if true, show how these supervisors were personally 16 involved in the constitutional deprivations he alleges. 17 Accordingly, plaintiff’s claims against Kernan, Doe, Burnes, Tumacder, and Mccarvel for 18 their conduct as supervisors of other defendants must be dismissed with leave to amend. 19 IV. Order and Recommendation 20 Accordingly, it is ORDERED that: 21 1. Plaintiff’s request to proceed in forma pauperis (ECF No. 6) is granted. 22 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in 23 accordance with the notice to the California Department of Corrections and 24 Rehabilitation filed concurrently herewith. 25 3. Plaintiff’s motion to exceed the e-filing page limit (ECF No. 12) is granted. 26 4. The Clerk is directed to randomly assign a United States District Judge to this case. 27 ///// 28 ///// 1 Further, it is RECOMMENDED that: 2 1. Plaintiff's “First Amendment (Substantive)” claims against defendants Cota, Burnes, 3 Mccarvel, Garza, and Rodriguez be dismissed without leave to amend. 4 2. Plaintiff’s claim that defendant Hubbard denied his substantive First Amendment 5 rights by issuing a false RVR against plaintiff be dismissed without leave to amend. 6 3. Plaintiff's substantive First Amendment claims against Hubbard for preventing him 7 from speaking with a psychologist and against Tumacder be dismissed with leave to 8 amend. 9 4. Plaintiff's First Amendment retaliation claims against Mccarvel, Tumacder, Garza, 10 and Rodriguez be dismissed with leave to amend. 11 5. Plaintiff's substantive due process, procedural due process, equal protection, and 12 “deliberate indifference” claims be dismissed with leave to amend as to all defendants. 13 6. The district judge find that plaintiff has, for the limited purposes of § 1915A 14 screening, stated potentially cognizable First Amendment retaliation claims against 15 defendants Cota, Burnes, Hubbard, Case, and Salcedo. 16 These findings and recommendations are submitted to the United States District Judge 17 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 18 || after being served with these findings and recommendations, any party may file written 19 || objections with the court and serve a copy on all parties. Such a document should be captioned 20 | “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 21 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 22 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 23 | DATED: February 12, 2020. 24 Latin : heh bie 5 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 26 27 28 14