(PC) Harris v. Munoz

• Court: District Court, E.D. California
• Decided: June 8, 2020
• Docket: 2:16-cv-00830
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GRADY HARRIS, No. 2:16-cv-00830-TLN-DB 12 Plaintiff, 13 v. ORDER 14 JEFF MACOMBER, et al., 15 Defendants. 16 17 Plaintiff Grady Harris (“Plaintiff”), a state prisoner proceeding pro se and in forma 18 pauperis, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. Plaintiff alleges 19 that Defendant Correctional Officers Rose, Munoz, Fong, Williamson, Calderon, Thompson, 20 Cervantes, Fuller, and Leavitt (collectively, “Defendants”) retaliated against him for exercising 21 his First Amendment right to file grievances and pursue civil rights litigation, used excessive 22 force against him, then filed a false disciplinary report regarding the use of force incident. (ECF 23 No. 10.) Presently before the Court is Defendant Leavitt’s (“Leavitt”) Motion to Dismiss 24 Plaintiff’s First Amended Complaint.1 (ECF No. 34.) 25 / / / 26

27 1 Leavitt is represented by different counsel than the remaining Defendants. The other Defendants answered the First Amended Complaint (ECF No. 25) and are currently proceeding 28 with discovery. The instant Motion to Dismiss was filed by and pertains to Leavitt only. 1 The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 2 636(b)(1)(B) and Local Rule 302. On March 25, 2019, the magistrate judge issued findings and 3 recommendations which were served on all parties and which contained notice to all parties that 4 any objections to the findings and recommendations were to be filed within fourteen days. (ECF 5 No. 62.) On April 8, 2019, Leavitt filed “Objections to Magistrate Judge’s Findings and 6 Recommendations.” (ECF No. 64.) 7 This Court reviews de novo those portions of the proposed findings of fact to which 8 objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore 9 Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982); see 10 also Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir. 2009). As to any portion of the proposed 11 findings of fact to which no objection has been made, the Court assumes its correctness and 12 decides the motions on the applicable law. See Orand v. United States, 602 F.2d 207, 208 (9th 13 Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo. See Britt v. Simi 14 Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 15 Having carefully reviewed the entire file under the applicable legal standards, and good 16 cause appearing, the Court finds that it is appropriate to adopt in part and reject in part the 17 Findings and Recommendations for the reasons stated herein. 18 I. FACTUAL AND PROCEDURAL BACKGROUND 19 This matter is currently proceeding on Plaintiff’s First Amended Complaint (“FAC”), in 20 which Plaintiff asserts claims against Defendants for violations of Plaintiff’s rights under 42 21 U.S.C. § 1997 and the First, Sixth, Eighth, and Fourteenth Amendments. (ECF No. 10 at 5.) 22 Specifically, Plaintiff alleges that, on November 21, 2014, he exchanged insults with 23 Calderon while preparing to attend exercise yard and was slammed against a wall by Munoz. 24 (Id.) Munoz and Fong then escorted Plaintiff to the sally port to be locked inside a holding cage. 25 (Id.) Plaintiff alleges the escort was conducted at a pace which was too fast for him due to his 26 limited mobility and inability to use his cane. (Id. at 5–6.) During the escort, Plaintiff’s boxer 27 shorts fell below his buttocks and genitals but Munoz and Fong forced Plaintiff to continue the 28 escort while being exposed to other prisoners and correctional officers on the yard. (Id. at 6.) At 1 this time, Plaintiff caught the attention of Williamson, Calderon, Thompson, Cervantes, Fuller, 2 and Leavitt. (Id.) When Plaintiff asked Munoz and Fong to permit him to slow down and pull up 3 his pants, Munoz stated, “so what. You should [have] thought of that before you started to run 4 your mouth and fil[e] [prison grievances] against people for falling down the stairs.” (Id.) 5 Plaintiff alleges Munoz’s statement refers to an inmate grievance Plaintiff filed on August 27, 6 2014. (Id. at 7.) Plaintiff also alleges that “several” of the correctional officers who were 7 watching his escort then laughed “in agreement” with Munoz’s statement. (Id.) Plaintiff does not 8 specify which of the officers laughed. (See id.) 9 Once the escort reached the sally port, Munoz, Fong, Thompson, Williamson, and 10 Calderon slammed Plaintiff on the ground and punched him. (Id.) Sometime thereafter, Rose, 11 Munoz, Fong, Williamson, Calderon, Thompson, Cervantes, Fuller, and Leavitt, “conspired to 12 further retaliate, as well [as] conceal the assault … by filing false peace officer reports charging 13 Plaintiff with a bogus assault against Munoz which resulted in a subsequent finding of guilt.” (Id. 14 at 8.) 15 On July 10, 2017, the magistrate judge screened Plaintiff’s FAC and found it potentially 16 stated claims against Defendants Rose, Munoz, Fong, Williamson, Calderon, Thompson, 17 Cervantes, Fuller, and Leavitt pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). (ECF No. 18 15 at 2, 5.) On November 17, 2017, Defendants Rose, Munoz, Fong, Williamson, Calderon, 19 Thompson, Cervantes, and Fuller answered Plaintiff’s FAC. (ECF No. 26.) On February 9, 20 2018, Leavitt filed the instant Motion to Dismiss. (ECF No. 34.) 21 The Findings and Recommendations recommend granting Leavitt’s motion as to 22 Plaintiff’s Sixth and Fourteenth Amendment, and 42 U.S.C. § 1997 claims, and denying Leavitt’s 23 motion as to Plaintiff’s First and Eighth Amendment claims. (ECF No. 62 at 16–17.) Leavitt 24 objects to the recommendations pertaining to Plaintiff’s First and Eighth Amendment claims only. 25 (ECF No. 64.) The Court adopts in part and rejects in part the Findings and Recommendations 26 for the reasons stated herein. 27 / / / 28 / / / 1 II. STANDARD OF LAW 2 A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 3 (“Rule”) 12(b)(6) tests the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 4 (9th Cir. 2001). Rule 8(a) requires that a pleading contain “a short and plain statement of the 5 claim showing that the pleader is entitled to relief.” See Ashcroft v. Iqbal (Iqbal), 556 U.S. 662, 6 678–79 (2009). Under notice pleading in federal court, the complaint must “give the defendant 7 fair notice of what the claim . . . is and the grounds upon which it rests.” Bell Atlantic v. Twombly 8 (Twombly), 550 U.S. 544, 555 (2007). “This simplified notice pleading standard relies on liberal 9 discovery rules and summary judgment motions to define disputed facts and issues and to dispose 10 of unmeritorious claims.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). 11 On a motion to dismiss, the factual allegations of the complaint must be accepted as true. 12 Cruz v. Beto, 405 U.S. 319, 322 (1972). A court is bound to give the plaintiff the benefit of every 13 reasonable inference to be drawn from the “well-pleaded” allegations of the complaint. Retail 14 Clerks Int’l Ass’n v. Schermerhorn (Retail Clerks), 373 U.S. 746, 753 n.6 (1963); Jenkins v. 15 McKeithen, 395 U.S. 411, 421 (1969). A plaintiff need not allege “‘specific facts’ beyond those 16 necessary to state his claim and the grounds showing entitlement to relief.” Twombly, 550 U.S. at 17 570. Thus, a court may not dismiss a complaint in which the plaintiff has alleged “enough facts 18 to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 697 (quoting Twombly, 19 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that 20 allows the court to draw the reasonable inference that the defendant is liable for the misconduct 21 alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). Only where a plaintiff has 22 failed to “nudge[] [his or her] claims . . . across the line from conceivable to plausible,” is the 23 complaint properly dismissed. Id. at 680. 24 Nevertheless, a court “need not assume the truth of legal conclusions cast in the form of 25 factual allegations.” United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 26 1986). While Rule 8(a) does not require detailed factual allegations, “it demands more than an 27 unadorned, the defendant—unlawfully—harmed—me accusation.” Iqbal, 556 U.S. at 678. A 28 pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the 1 elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 2 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 3 statements, do not suffice.”). Moreover, it is inappropriate to assume that Plaintiff “can prove 4 facts that [he] has not alleged or that the defendants have violated the . . . laws in ways that have 5 not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters 6 (Associated Gen. Contractors), 459 U.S. 519, 526 (1983). 7 If a complaint fails to state a plausible claim, “[a] district court should grant leave to 8 amend even if no request to amend the pleading was made, unless it determines that the pleading 9 could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 10 (9th Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)); see 11 also Mt. Hood Polaris, Inc. v. Martino (In re Gardner), 563 F.3d 981, 990 (9th Cir. 2009) 12 (finding no abuse of discretion in denying leave to amend when amendment would be futile); 13 Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010) (dismissal is proper if 14 amendment is futile or the plaintiff had several opportunities to amend and repeatedly failed to 15 cure the deficiencies). “[T]he court’s discretion to deny such leave is ‘particularly broad’ where 16 the plaintiff has previously amended [his] complaint.” Ecological Rights Found. v. Pac. Gas & 17 Elec. Co., 713 F.3d 502, 520 (9th Cir. 2013) (quoting Miller v. Yokohama Tire Corp., 358 F.3d 18 616, 622 (9th Cir. 2004)). 19 III. ANALYSIS 20 A. 42 U.S.C. § 1997, Sixth Amendment, and Fourteenth Amendment Claims 21 Neither party objected to the recommendation to dismiss Plaintiff’s Sixth Amendment, 22 Fourteenth Amendment, or 42 U.S.C. § 1997 claims, and the Court agrees with the magistrate 23 judge’s analysis. Further, the Court finds amendment would be futile as to these claims. Doe, 58 24 F.3d at 497. Accordingly, the Court adopts the findings and recommendations and Plaintiff’s 25 claims under 42 U.S.C. § 1997, the Sixth Amendment, and the Fourteenth Amendment are 26 DISMISSED, without leave to amend. 27 B. Eighth Amendment Excessive Force Claim 28 Leavitt moved to dismiss Plaintiff’s Eighth Amendment claim on the basis that Plaintiff 1 failed to name or mention Leavitt in connection with the alleged excessive force incident. (ECF 2 No. 34-1 at 4.) The Findings and Recommendations, liberally construing the FAC in favor of 3 Plaintiff, found Plaintiff’s use of the phrase “conspired to further retaliate as well as conceal 4 [Plaintiff’s] assault” was meant to incorporate Leavitt into the use of force incident, even though 5 Plaintiff did not specifically name Leavitt in his allegations describing the assault. (See ECF No. 6 62 at 8 (emphasis in Findings and Recommendations).) In objecting to the recommendation to 7 deny his Motion to Dismiss, Leavitt argues Plaintiff specifically names the correctional officers 8 who participated in the alleged excessive force incident (Munoz, Fong, Thompson, Williamson, 9 and Calderon) and describes each officer’s conduct during that incident, but the FAC is devoid of 10 factual allegations that indicate Leavitt was present or participated in the incident in any way. 11 (ECF No. 64 at 2.) The Court agrees with Leavitt. 12 To state a claim under § 1983, Plaintiff bears the burden of pleading that an official, 13 “acting under color of state law, caused the deprivation of a federal right.” 42 U.S.C. § 1983; 14 OSU Student Alliance v. Ray, 699 F.3d 1053, 1061 (9th Cir. 2012) (quoting Hafer v. Melo, 502 15 U.S. 21, 25 (1991)). A person “causes” the deprivation of a federal right under § 1983 if he “does 16 an affirmative act, participates in another’s affirmative acts or omits to perform an act which he is 17 legally required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 18 588 F.2d 740, 743 (9th Cir. 1978). Thus, the statute requires that there be an actual connection or 19 link between the actions of the defendants and the plaintiff’s alleged deprivation. Rizzo v. Goode, 20 423 U.S. 362, 371 (1976). Vague and conclusory allegations concerning an official’s 21 involvement in civil rights violations are not sufficient. See Ivey v. Bd. of Regents, 673 F.2d 266, 22 268 (9th Cir. 1982). 23 Here, the FAC fails to assert any allegations to establish Leavitt participated in the use of 24 force incident. Plaintiff expressly identifies Munoz, Fong, Thompson, Williamson, and Calderon 25 as the Defendants who participated in the use of force incident (ECF No. 10 at 7). Indeed, 26 Plaintiff expressly identifies these five Defendants by name twice in his use of force allegations, 27 and both times, Leavitt’s name is glaringly absent. (See id.) Nor does the FAC include 28 allegations that Leavitt left his position on the yard to join Plaintiff’s escort, was present at the 1 sally port gate at the time of the alleged assault, or that he failed to intercede to prevent the other 2 officers from attacking Plaintiff and/or personally attacked Plaintiff. See Cunningham v. Gates, 3 229 F.3d 1271, 1289–90 (9th Cir. 2000) (officers have a duty to intervene when fellow officers 4 violate the constitutional rights of a suspect or other citizen and may be held liable for failing to 5 intercede if they had an opportunity to do so); see also Bruner v. Dunaway, 684 F.2d 422, 426–27 6 (6th Cir. 1982) (officers who were not present at the time of the alleged assault could not be held 7 liable in § 1983 action for failure to intercede). Despite recommending denial of Leavitt’s 8 motion, the Findings and Recommendations concede the FAC does not specifically allege Leavitt 9 used any degree of force against Plaintiff. (ECF No. 62 at 7.) 10 In his Opposition to the Motion, Plaintiff argues Leavitt joined the escort, was present 11 during the excessive force incident but failed to intervene, and also participated in the incident by 12 kicking and/or punching Plaintiff as he lay on the ground, restrained. (ECF No. 57 at 2.) Plaintiff 13 acknowledges these allegations are not in the FAC but argues the Court should nevertheless 14 consider them as “materials submitted as part of the complaint.” (Id. at 3.) The Court declines to 15 do so. Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (a court may not consider new facts 16 provided in an opposition to a motion). Moreover, Plaintiff’s attempt to assert additional 17 allegations against Leavitt in his Opposition suggests that he recognizes the pleadings in his FAC 18 are deficient. 19 Finally, the Court declines to adopt the Findings and Recommendations’ finding that 20 Plaintiff’s use of the word “further” in the phrase “conspired to further retaliate [by filing a false 21 report]” (ECF No. 10 at 8) was meant to incorporate Leavitt into the use of force incident, where 22 Plaintiff specifically named other Defendants but not Leavitt in his allegations describing the use 23 of force incident. (See ECF No. 62 at 8 (emphasis in Findings and Recommendations).) First, a 24 fair reading of the FAC does not reveal whether this “further retaliation” refers back to the 25 humiliating escort on the yard (in which Plaintiff identifies Leavitt as a participant) or the 26 subsequent assault at the sally port gate (in which Plaintiff does not). Second, Leavitt need not 27 have participated in the use of force incident to subsequently conspire with the other Defendants 28 to create a “false” report of the incident. In sum, Plaintiff “has not nudged his [excessive force 1 claim against Leavitt] across the line from conceivable to plausible.” Iqbal, 556 U.S. at 679–80 2 (“where the well-pleaded facts do not permit the court to infer more than the mere possibility of 3 misconduct, the complaint has alleged—but it has not shown—that the pleader is entitled to 4 relief.”) (internal quotations omitted). 5 In sum, while Plaintiff’s allegations are to be liberally construed, Jenkins, 395 U.S. at 421, 6 the fact that Plaintiff specifically names the officers who participated in the use of force incident 7 yet omits Leavitt’s name is significant. Whether the omission was intended or not, the Court may 8 not assume Plaintiff can prove facts which he has not alleged. Associated Gen. Contractors, 459 9 U.S. at 526. Therefore, Plaintiff fails to allege sufficient facts to state a cognizable Eighth 10 Amendment excessive force claim against Leavitt and Leavitt’s objections are sustained. 11 Accordingly, the Court rejects the Findings and Recommendations with respect to 12 Plaintiff’s Eighth Amendment claim, and GRANTS Leavitt’s Motion to Dismiss. Because, 13 however, it appears Plaintiff may cure his pleading defects, Plaintiff is granted leave to amend his 14 Eighth Amendment excessive force claim as asserted against Leavitt. Fed. R. Civ. P. 15(a)(2); 15 Lopez, 203 F.3d at 1130. 16 C. First Amendment Retaliation Claim 17 As to Plaintiff’s First Amendment claim, Plaintiff claims the escort incident, the use of 18 force incident, and the false report incident were all acts of retaliation committed against him for 19 having filed a prison grievance. (See ECF No. 62 at 11–12.) In general, Leavitt seeks dismissal 20 on the basis that Plaintiff fails to implicate him specifically in his allegations. (ECF No. 34-1 at 21 5–6.) With respect to the false report incident, Leavitt argues Plaintiff’s “alleged false statements 22 … are not described with any specificity,” and filing a “false report” does not amount to a 23 constitutional violation as a matter of law. (Id.) The Findings and Recommendations found the 24 pleadings sufficiently establish Plaintiff’s prior prison grievance/s to be the basis of Defendants’ 25 retaliatory acts, and that Plaintiff’s factual allegations sufficiently tied Leavitt to this conduct. 26 (See ECF No. 62 at 11–13.) The Court adopts in part and rejects in part the Findings and 27 Recommendations as follows. 28 / / / 1 To prove a First Amendment retaliation claim, a plaintiff must establish: (1) an assertion 2 that a state actor took some adverse action against an inmate; (2) because of; (3) that prisoner’s 3 protected conduct, and that action; (4) chilled the inmate’s exercise of his First Amendment 4 rights; and (5) the action did not reasonably advance a legitimate correctional goal. Rhodes v. 5 Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005). Moreover, a prisoner need not prove that the 6 alleged retaliatory action, in itself, violated a constitutional right. Pratt v. Rowland, 65 F.3d 802, 7 806 (9th Cir. 1995). 8 In objecting to the recommendation to deny his Motion, Leavitt asserts the magistrate 9 judge’s analysis incorrectly relies on allegations Plaintiff made against other defendants, not 10 Leavitt, and that the Findings and Recommendations do not identify the protected conduct in 11 which Plaintiff engaged that prompted Leavitt’s purported retaliation. (ECF No. 64 at 3.) Leavitt 12 further objects that filing false reports for the purpose of covering up the misdeeds of another 13 officer is not actionable conduct under the First Amendment. (Id.) The Court will address 14 Leavitt’s objections with respect to each alleged retaliatory incident. 15 i. Escort Incident 16 As to the escort incident, the Findings and Recommendations correctly note that parading 17 Plaintiff across the prison yard in a semi-nude, objectively humiliating state for all to see, because 18 Plaintiff filed a grievance about falling down stairs, served no legitimate correctional goal and 19 constitutes a retaliatory act. (ECF No. 62 at 10–12; ECF No. 10 at 6–7.) The Findings and 20 Recommendations also correctly note that filing a grievance constitutes protected conduct under 21 the First Amendment (ECF No. 62 at 12), and Plaintiff identifies a prior grievance pertaining to 22 an incident on August 27, 2014, as the protected conduct from which Defendants’ retaliatory acts 23 arose (ECF No. 10 at 6–7). See Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) (citing 24 Rhodes, 408 F.3d at 567). 25 Moreover, the Defendants who “focused attention on Plaintiff’s escort” also became 26 participants in this act when they allegedly laughed “in agreement” at the statement made by 27 Munoz, thus condoning the retaliatory escort rather than attempting to intervene to stop such 28 behavior. (ECF No. 62 at 12; ECF No. 10 at 7); see also Cunningham, 229 F.3d at 1289–90. 1 Accepting all allegations of material fact as true “as well as all reasonable inferences to be drawn 2 from them,” Retail Clerks, 373 U.S. at 753 n.6, it is reasonable to infer that Williamson, 3 Calderon, Thompson, Cervantes, Fuller, and Leavitt — the Defendants who Plaintiff identifies in 4 paragraph 3 of the FAC as “respond[ing] with attention [to] the escort” (ECF No. 10 at 6–7) — 5 are the same Defendants to whom Plaintiff refers in the very next paragraph (again, as the 6 “Defendants who focused attention on Plaintiff’s escort”), who laughed in agreement with 7 Munoz’s statement. (Id. at 7.) Therefore, to the extent Leavitt argues Plaintiff fails to sufficiently 8 identify the protected conduct that is the basis of this retaliatory act or link Leavitt to this act 9 (ECF No. 64 at 3), his objections are overruled. 10 Accordingly, the Court adopts the finding that Plaintiff has sufficiently alleged a First 11 Amendment retaliation claim against Leavitt as to the escort incident and Leavitt’s Motion to 12 Dismiss is DENIED. 13 ii. Use of Force Incident 14 As to the use of force incident, the Court finds Plaintiff sufficiently alleges he was 15 assaulted in retaliation for filing a prior grievance for the reasons discussed in the Findings and 16 Recommendations. (See ECF No. 62 at 12.) However, because the Court has found Plaintiff fails 17 to state an excessive force claim against Leavitt or otherwise establish Leavitt’s participation in 18 this incident, Plaintiff also fails to establish a retaliation claim against Leavitt as it is predicated 19 on the excessive force claim. Accordingly, Leavitt’s objections are sustained, and the Court 20 rejects the Findings and Recommendations and GRANTS Leavitt’s Motion to Dismiss with 21 respect to Plaintiff’s retaliatory use of force claim. 22 Nevertheless, the Court notes Plaintiff may sufficiently allege a retaliation claim against 23 Leavitt if he files an amended complaint that cures the previously identified pleading defects in 24 the underlying Eighth Amendment excessive force claim. Fed. R. Civ. P. 15(a)(2); Lopez, 203 25 F.3d at 1130. Accordingly, Plaintiff is granted leave to amend his First Amendment retaliation 26 claim against Leavitt as to the use of force incident. 27 iii. Falsified Report 28 Leavitt objects that Plaintiff asserts no factual allegations as to a specific protected act or 1 what spurred retaliation on the part of Leavitt, and Plaintiff fails to identify what false statements 2 were made. (ECF No. 64 at 3.) However, the Findings and Recommendations correctly found 3 Plaintiff alleges a false incident report was filed against him in retaliation for filing a prior 4 grievance. (See ECF No. 62 at 10–12); see also Brodheim, 584 F.3d at 1269; Rhodes, 408 F.3d at 5 567. 6 Specifically, the “protected act” was the August 27, 2014 prison grievance Plaintiff filed, 7 which Munoz alluded to in his comment during the escort incident. (ECF No. 62 at 10; ECF No. 8 10 at 6–7.) As previously discussed, Leavitt was one of the correctional officers present during 9 the escort who heard and expressed agreement with Munoz’s statement, thus establishing 10 Leavitt’s personal retaliatory intent. (ECF No. 62 at 12; ECF No. 10 at 6–7.) It is clear from the 11 pleadings that the use of force incident occurred immediately after the escort concluded, therefore 12 the same retaliatory motive may be imputed to both retaliatory acts. Moreover, since the 13 subsequent report pertains to this same use of force incident and Plaintiff alleges Defendants 14 “conspired to further retaliate … by filing false peace officer reports charging Plaintiff with a 15 bogus assault against Defendant Munoz” (see ECF No. 10 at 8 (emphasis added)), it is reasonable 16 to infer that the incidents are temporally linked and the same retaliatory motive for the escort 17 incident may be imputed to the falsified report. Retail Clerks, 373 U.S. at 753 n.6. Finally, 18 because Plaintiff expressly identifies Leavitt as a participant in both the escort and the falsified 19 report, he has sufficiently established Leavitt’s personal involvement and retaliatory motive with 20 respect to the falsified report. (See ECF No. 10 at 8.) Leavitt’s objections that no protected 21 conduct was identified and that he was not sufficiently linked to Plaintiff’s falsified report claim 22 (ECF No. 64 at 3) are therefore overruled. 23 With respect to Leavitt’s objection that Plaintiff fails to identify what false remarks were 24 made in the report (see id.), Leavitt fails to identify any legal authority requiring such specificity 25 in the pleadings. Rather, the Court finds Plaintiff’s contention that he did not assault Munoz, but 26 that Leavitt’s report indicates that he did, is sufficient to allege Leavitt filed a false report of the 27 incident for purposes of the retaliation analysis. Accordingly, this objection is overruled. 28 / / / 1 Finally, the Court turns to Leavitt’s objection that the filing of false reports for the 2 purpose of covering up misdeeds is not actionable conduct under the First Amendment. (ECF 3 No. 64 at 3.) The Court agrees that such allegations fail to state a claim. See Buckley v. Gomez, 4 36 F. Supp. 2d 1216, 1222 (S.D. Cal. 1997) (prisoners have no constitutional right to be free from 5 wrongfully issued disciplinary reports), aff’d without opinion, 168 F.3d 498 (9th Cir. 1999). So 6 did the Findings and Recommendations. (ECF No. 62 at 12 fn.5.) To this extent, Leavitt’s 7 objection is sustained. However, to the extent Leavitt seeks to argue that filing false reports is 8 never actionable conduct in a § 1983 action, his objection is contrary to legal authority and 9 therefore overruled. 2 10 Construed in the light most favorable to Plaintiff, the Court finds Plaintiff’s allegations 11 sufficiently show Defendants’ motivation for filing the false report was not just to protect 12 themselves from liability for the excessive force incident, but to achieve the “subsequent finding 13 of guilt” against Plaintiff and resulting loss of privileges for retaliation purposes. (ECF No. 10 at 14 8); compare Ragsdale v. Flores, No. CV-14-08075-ODW (GJS), 2015 WL 6164908, *6, 8 (C.D. 15 Cal. Sept. 11, 2015) (dismissing retaliation claim based on allegations showing the defendants 16 prepared false incident report to cover up excessive force incident and not for the purpose of 17 chilling the plaintiff’s exercise of his First Amendment right or any other protected conduct). The 18 Court therefore rejects Leavitt’s characterization of the claim as solely a “cover up” and objection 19 that Plaintiff has not “[pled] sufficient facts to make plausible a claim that the defendants’ actions 20 were motivated by a desire to retaliate for his exercise of a constitutional right” (ECF No. 64 at 21 3). Accordingly, the Court adopts the Findings and Recommendations to DENY Leavitt’s 22 Motion to Dismiss Plaintiff’s retaliation claim with respect to the falsified report. 23

24 2 See, e.g., Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (prisoner need not prove that the alleged retaliatory action, in itself, violated a constitutional right); Sprouse v. Babcock, 870 25 F.2d 450, 452 (8th Cir. 1989) (filing a false disciplinary report in retaliation for a grievance filed by an inmate is actionable under § 1983); Pratt v. Rowland, 769 F. Supp. 1128, 1134 (N.D. Cal. 26 1991) (collecting cases); Perryman v. Newsom, No. 2:19-cv-00071-CKD-P, 2019 WL 2369880, 27 *3 (E.D. Cal. Jun. 5, 2019); Hill v. Kernan, No. 2:16-cv-03020-KJN-P, 2017 WL 2619128, *5 (E.D. Cal. Jun. 16, 2017); Kabede v. Director’s Level Chief of Inmate Appeals, No. 2:15-cv- 28 01203-AC-P, 2016 WL 8731330, *3 (E.D. Cal. Apr. 29, 2016). 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The Findings and Recommendations filed on March 25, 2019 (ECF No. 62), are 3 adopted in part and rejected in part as follows: 4 2. Defendant Leavitt’s Motion to Dismiss (ECF No. 34) is GRANTED IN PART and 5 DENIED IN PART as follows: 6 (a) GRANTED without leave to amend as to Plaintiff’s Sixth Amendment, Fourteenth 7 Amendment, and 42 U.S.C. § 1997 claims; 8 (b) GRANTED with leave to amend as to Plaintiff’s Eighth Amendment excessive 9 force claim; 10 (c) DENIED as to Plaintiff’s First Amendment retaliation claim pertaining to the 11 escort incident; 12 (d) GRANTED with leave to amend as to Plaintiff’s First Amendment retaliation 13 claim pertaining to the use of force incident; and 14 (e) DENIED as to Plaintiff’s First Amendment retaliation claim pertaining to the 15 falsified report. 16 3. Should Plaintiff wish to file an amended complaint, such complaint must be filed 17 within thirty days of the electronic filing of this Order, and any amendment is limited to 18 Plaintiff’s First and Eighth Amendment claims against Defendant Leavitt, consistent with this 19 Order. 20 IT IS SO ORDERED. 21 DATED: June 5, 2020 22 23 24 25 26 27 28