(PC) Kohut v. Allison

Opinion

JONATHAN KOHUT, Case No.: 1:20-cv-01584-JLT-CDB (PC) Plaintiff, ORDER DIRECTING THE CLERK OF THE COURT TO TERMINATE CERTAIN v. PARTIES FROM THE DOCKET FOR THIS ACTION K. ALLISON, et al., FINDINGS AND RECOMMENDATIONS TO Defendants. DISMISS CERTAIN CLAIMS AND DEFENDANTS FOLLOWING SCREENING OF PLAINTIFF’S THIRD AMENDED COMPLAINT 14-DAY OBJECTION DEADLINE

Plaintiff Jonathan Kohut is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. section 1983. The Court issued its Second Screening Order Granting Leave to File Third Amended Complaint on June 30, 2023. (Doc. 44.) Specifically, the Court determined that Plaintiff’s second amended complaint stated the following cognizable claims: First Amendment retaliation claims against Defendants Frauenheim, R. Godwin, Aaron Shimmin (Claim II); First Amendment mail interference and retaliation claims against Defendants S. Van Ingen, M. Anaya, John/Jane Does #1 and #2 (Claims IV, V, VI and VIII); Fourteenth Amendment due process claims against against Defendants S. Van Ingen, M. Anaya, John/Jane Does #1 and #2 (Claim XII); and negligence claims against Defendants S. Van Ingen, M. Anaya, John/Jane Does #1 and #2 (Claim XIII); it further determined that any other claims asserted against any defendant failed to state a claim upon which relief could be granted. (Id. at 10-31.) Plaintiff was directed to do one of the following within 30 days: (1) file a third amended complaint curing the deficiencies identified in the second screening order; or (2) file a notice indicating he wished to proceed only on the claims found cognizable by the Court; or (3) file a notice of voluntary dismissal. (Id. at 32-33.) On July 26, 2023, Plaintiff filed a third amended complaint. (Doc. 45.) The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the complaint is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b). The Court should dismiss a complaint if it lacks a cognizable legal theory or fails to allege sufficient facts to support a cognizable legal theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A. Federal Rule of Civil Procedure 8(a) “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited exceptions.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002). A complaint must contain “a short and plain statement of the claims showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Such a statement must simply give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512 (internal quotation marks & citation omitted). Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must Id. (quoting Twombly, 550 U.S. at 570). Factual allegations are accepted as true, but legal conclusions are not. Id. (citing Twombly, 550 U.S. at 555). The Court construes pleadings of pro se prisoners liberally and affords them the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). However, “the liberal pleading standard . . . applies only to a plaintiff’s factual allegations,” not his legal theories. Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). Furthermore, “a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled,” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (internal quotation marks & citation omitted), and courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks & citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient to state a cognizable claim, and “facts that are merely consistent with a defendant’s liability” fall short. Iqbal, 556 U.S. at 678 (internal quotation marks & citation omitted). B. Linkage and Causation Section 1983 provides a cause of action for the violation of constitutional or other federal rights by persons acting under color of state law. See 42 U.S.C. § 1983. To state a claim under section 1983, a plaintiff must show a causal connection or link between the actions of the defendants and the deprivation alleged to have been suffered by the plaintiff. See Rizzo v. Goode, 423 U.S. 362, 373-75 (1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another’s affirmative acts, or omits to perform an act which he is legal required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (citation omitted). C. Supervisory Liability Liability may not be imposed on supervisory personnel for the actions or omissions of their subordinates under the theory of respondeat superior. Iqbal, 556 U.S. at 676-77; see e.g., Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010) (plaintiff required to unconstitutionally, not merely that subordinate did”), overruled on other grounds by Castro v. Cnty of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) (“In order for a person acting under color of state law to be liable under section 1983 there must be a showing of personal participation in the alleged rights deprivation: there is no respondeat superior liability under section 1983”). Supervisors may be held liable only if they “participated in or directed the violations, or knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). “The requisite causal connection may be established when an official sets in motion a ‘series of acts by others which the actor knows or reasonably should know would cause others to inflict’ constitutional harms.” Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009). Accord Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011) (supervisory liability may be based on inaction in the training and supervision of subordinates). Supervisory liability may also exist without any personal participation if the official implemented “a policy so deficient that the policy itself is a repudiation of the constitutional rights and is the moving force of the constitutional violation.” Redman v. Cnty. of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (citations & quotations marks omitted), abrogated on other grounds by Farmer v. Brennan, 511 U.S. 825 (1970). To prove liability for an action or policy, the plaintiff “must ... demonstrate that his deprivation resulted from an official policy or custom established by a ... policymaker possessed with final authority to establish that policy.” Waggy v. Spokane Cnty. Washington, 594 F.3d 707, 713 (9th Cir. 2010). When a defendant holds a supervisory position, the causal link between such defendant and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979). Vague and conclusory allegations concerning the involvement of supervisory personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). // // A. Plaintiff’s Third Amended Complaint Plaintiff names the following individuals as Defendants in this action: 1. Jeff Macomber, Secretary of California Department of Corrections and Rehabilitation (CDCR), in his official capacity 2. Scott Frauenheim, former/retired Warden of Pleasant Valley State Prison (PVSP), in his individual and official capacities 3. R. Godwin, Warden of PVSP, in his individual and official capacities 4. Tristan Lemon, Warden of PVSP, in his official capacity 5. J. Gaona, Correctional Counselor I, at the Central California Women’s Facility (CCWF), in her individual capacity 6. M. Anaya, PVSP mailroom supervisor, in his/her individual capacity 7. S. Van Ingen, PVSP mailroom official, in his/her individual capacity 8. John/Jane Doe #1, Institutional Security Unit (ISU) official at PVSP, in his/her individual capacity 9. John/Jane Doe #2, receiving and release official at PVSP, in his/her individual capacity 10. John/Jane Does #3 through #8 (Doc. 45 at 2-3.) Plaintiff seeks money damages, costs “including reasonable paralegal fees under 42 U.S.C. § 1988 …,” and other relief deemed just and equitable by the Court. (Id. at 18.) Further, Plaintiff seeks the following injunctive relief: A preliminary and permanent injunction that effectively nullifies the policy currently in force throughout the CDCR, statewide, that prohibits “approved correspondents” from full exercise and enjoyment of their rights afforded under the 1st Amendment of the U.S. Constitution, Article I, section 2 of the California Constitution, and declaratory relief finding the policy to be devoid of legitimate penological justification; A preliminary and permanent injunction prevent[ing] Defendants, as well as their colleagues, employees, agents and/or officials, and any and all persons acting in concert with them from further violations of Plaintiff’s rights guaranteed under the 1st & 14th Amendments of the U.S. Constitution, and Article I, section 2 of the California Constitution, California Civil Code § 52.1, and providing other (Id.) B. Plaintiff’s Factual Allegations Shortly after arriving at PVSP on April 2, 2019, Plaintiff submitted “an initial 1074 form” or correspondence request to his assigned correctional counselor. (Doc. 45 at 4.) When more than three months passed without a response, Plaintiff submitted another form. (Id.) Again, Plaintiff received no response after an extended wait. (Id.) Ultimately, Plaintiff asserts that on November 18, 2019, “a form submitted by Plaintiff” was approved by Defendant Gaona. (Id.) Pursuant to Title 15 of the California Code of Regulations (CCR), section 3139(c)(7), Defendant Gaona was obligated to distribute the approved form to the mailrooms at CCWF and PVSP, in addition to the central files pertaining to Plaintiff and “Ms. Winter (not named).” (Id.) Plaintiff asserts that instead Gaona intentionally, willfully, maliciously, and with the intent to obstruct or chill Plaintiff’s exercise of his constitutional rights, elected “to forego her legal obligation” to do so. (Id.) Plaintiff alleges Gaona’s actions “put in motion the events subsequently set forth” in the third amended complaint. (Id.) Plaintiff contends Gaona’s actions and inaction were the moving force behind “PVSP rejecting Plaintiff’s incoming mail” and that he is dependent upon the United States Postal Service (USPS) “for any and all of his written correspondence with Ms. Winter.” (Id.) Plaintiff avers Ms. Winter forwarded the approved 1074 form by Defendant Gaona to the CCWF mailroom, but Ms. Winter was unsuccessful in attempting to provide the same form or notice to the PVSP Defendants. (Id. at 4-5.) Plaintiff contends “no fewer than 3 attempts were made to apprise PVSP Defendants of the approved 1074” form between November 18, 2019, and February 22, 2020. (Id. at 5.) Plaintiff contends 1074 forms bearing Defendant Gaona’s signature, and marked “‘For the PVSP Mailroom,’” were “forwarded and received by the PVSP mailroom,” but the forms were not acknowledged or recognized. (Id.) Plaintiff alleges Ms. Winter personally met with Defendant Gaona, making repeated requests that Gaona “properly enter the form in order to avoid any further rejections of correspondence.” (Id.) During that period, Plaintiff’s letters were received by Ms. Winter at CCWF, yet Ms. Winter’s letters to Plaintiff were wrongfully rejected by PVSP. (Id.) Plaintiff further alleges that Defendant Gaona “refused to send Plaintiff alleges that on March 23, 2020, he filed a grievance “aimed at PVSP mailroom [officials]” after being advised by a third party that Ms. Winter’s mail directed to Plaintiff had been “repeatedly rejected.” (Doc. 45 at 5.) The grievance cited significant delays in delivery times concerning incoming mail, wrongful rejection of “U.S. Mail” intended for Plaintiff, and “no notice being provided advising of mail being rejected.” (Id.) Defendant Van Ingen interviewed Plaintiff in connection with his grievance. (Id. at 6.) Van Ingen offered Plaintiff “20 metered envelopes to drop his complaint” but Plaintiff declined. (Id.) Plaintiff asserts he “iterated the emotional implications” regarding the rejected letters, and that the most egregious act “was the fact that the PVSP mailroom (supervised by Defendant M. Anaya …) had an ‘underground custom’ of failing to provide notification that mail was being censored and/or rejected.” (Id.) Plaintiff also complained that incoming mail was taking three weeks to one month to be delivered. (Id.) Plaintiff asserts the grievance process at PVSP concerning mail “brought absolutely no relief,” and that subsequently filed “602’s aimed at bringing practices” at PVSP into compliance resulted in additional delays. (Doc. 45 at 6.) Plaintiff’s rejection of Defendant Van Ingen’s “informal settlement offer” and the multiple additional grievances he submitted resulted in retaliation by Defendants Van Ingen, Anaya, and “Does #1-8.” (Id.) Next, Plaintiff states he enrolled in a paralegal studies program, and that textbooks, other course materials, and mail from the school “were delayed excessively, and far beyond time constraints.” (Doc. 45 at 6.) Those delays, occurring under Defendant Anaya’s supervision, extended his completion of the program and adversely affected his “emotional state.” (Id.) Plaintiff maintains that the first level response “to the 602 aimed at PVSP mailroom Defendants” granted relief “in the form of the implementation of notice provision and utilization of the CDCR 1819 forms.” (Doc. 45 at 7.) Plaintiff contends that Defendant Frauenheim, at the second level of review, “expressed that the 1819 forms would be put to use, and that other issues involving retaliation were unsupported by evidence.” (Id.) Plaintiff alleges Frauenheim’s response “was disingenuous” and that his allegations concerning delivery times regarding Meanwhile, outgoing mail processing by “PVSP Defendants” deviated “from the procedures set forth by the controlling authorities.” (Doc. 45 at 7.) When Plaintiff submitted a CDC-193 form for the purchase of a quarterly package on January 27, 2020—during the first quarter—Defendant Doe #1 failed to perform his ministerial duty concerning payment. (Id.) Instead of submitting the payment within five days as required, Doe #1 delayed until February 28, 2020; because the package was not shipped by the vendor until March 23, 2020, when it was delivered to PVSP on April 17, 2020, the package was designated as having been received during the second quarter. (Id.) Further, Plaintiff alleges that “PVSP officials” received delivery of a “second quarter package” for Plaintiff on June 2, 2020, but Defendant Doe #2 returned the package to the vendor and failed to notify Plaintiff of its delivery or to provide Plaintiff with an opportunity to appeal that action. (Id. at 7-8.) Under the heading “Supervisor Liability,” Plaintiff contends Defendants Frauenheim, Godwin, Shimmin,1 Anaya, and Gaona “were the moving force” behind the constitutional violations alleged because each “did in fact have either personal involvement, or direct knowledge of the ongoing violations” alleged, and that they “were vested with the discretion and/or authority” to provide the requested relief or to implement remedial measures, “yet failed to curb the procedural deficiencies of their subordinates.” (Doc. 45 at 8.) Plaintiff maintains that “by virtue of their” positions, the supervisory defendants were responsible “for overseeing the management and operations of their subordinates” and “were responsible for the hiring and/or screening, training, supervision, discipline, counseling, and control” of their subordinates. (Id.) The supervisory defendants’ “failure to curb” the violations constitute deliberate indifference to Plaintiff’s constitutional rights. (Id.) Under the heading “CDCR Policy Maintained,” Plaintiff contends his attempts to make two purchases on behalf of Ms. Winter were thwarted by “PVSP officials.” (Doc. 45 at 8-9.) Those officials “refused to process a book order intended for Ms. Winter citing departmental policy.” (Id. at 9.) Further, an electronic appliance purchase meant for Ms. Winter’s benefit,

1 sought from vendor Walkenhorst, was denied; the explanation provided by the vendor “cited ‘CDCR policy’ as being non permissive of any purchases made by individuals in CDCR [custody] on behalf of others also in custody within CDCR.” (Id.) Plaintiff alleges however that there is “no legitimate penological justification for any continued application of this CDCR policy” because “‘approved correspondents’”—Plaintiff and Ms. Winter—had already “been screened by the department,” therefore, the policy “impinges on the rights of the Plaintiff, as well as parties not named.” (Id.) On that basis, Plaintiff seeks “declaratory/injunctive relief” against Defendant Macomber.” (Id.) Under the heading “Summation of Allegations,” Plaintiff alleges all named Defendants “had/has an official duty to perform relevant to this action” and that “the ministerial obligations imposed by Title 15, Subchapter 2, Article 4. Mail, §§ 3130-3147, are based upon federal rulings (SCOTUS), as well as California statutory authorities, and violation(s) of such presents federal questions appropriate reviewed under 42 U.S.C. § 1983.” (Doc. 46 at 9.) Referring to Procunier v. Martinez and Bell v. Wolfish, Plaintiff asserts “the parties Defendant to this action, have an ever present legal obligation to have knowledge of, and to apply these regulations in a manner which affords” Plaintiff his constitutional rights. (Id.) Plaintiff maintains the “Defendants actions/inactions were perpetrated under the authority and color of state law” and carried out within the course and scope of employment. (Id. at 10.) Plaintiff asserts a special relationship exists between Plaintiff “and the Defendants, and that the emotionally distressing factors that were being inflicted upon him as the result of Defendants’ conduct, were made expressly, explicitly, abundantly, and adamantly clear to Defendants through the 602 process, including interviewed conducted by” Defendant Anaya and Van Ingen. (Id.) Plaintiff contends that “as a proximate result of the allegations set forth throughout this action,” he suffered humiliation, mental anguish, and emotional and physical distress. (Doc. 45 at 10.) His injuries include significant stress, loss of appetite, and weight loss. (Id.) The significant stress occurred as a result of his “inability to maintain an ongoing dialogue through correspondence” due to delays, “frustrations” affecting his relationship with Ms. Winter, materialized,” retaliatory behavior, Plaintiff’s “inability to depend on Defendants’ adherence to” regulations governing mail and that Plaintiff’s funds would be forwarded “within a reasonable and timely manner,” that “Defendants sole motivations were to defend their wrongful conduct,” and Plaintiff’s monetary losses. (Id. at 10-11.) Further, Plaintiff alleges he sought mental health treatment for “alternatives for stress relief, rage control, and mood stabilization.” (Id. at 11.) Lastly, Plaintiff asserts “Defendants, and other agents/officials employed by the CDCR, are responsible for, or personally participated in creating and/or implementing the policies and practices” about which he complains, and for “permitting the procedural deficiencies alleged to develop and persist until ‘underground regulations’ took root,” leading to further deviations despite Plaintiff’s efforts to seek relief. (Doc. 45 at 12.) He maintains “Defendants’ unconstitutional policies, practices, and customs were and are the moving force” behind his injuries and the damages he suffered. (Id.) C. Plaintiff’s Claims Plaintiff presents seven claims for relief. (Doc. 45 at 12-17.) Those claims include First Amendment violations (claims 1 & 2), a violation of his freedom of speech arising under the California Constitution (claim 3), Fourteenth Amendment due process violations (claim 4), violations of the Bane Act (claim 5), intentional infliction of emotional distress (claim 6), and negligence (claim 7). Claim 1 Plaintiff contends “Defendants” violated his “right to utilize the U.S.P.S., insofar as such use pertains to Plaintiff’s exercisement [sic] of his right to freedom of speech, and the freedom to communicate with parties outside of the institution.” (Doc. 45 at 12.) Plaintiff maintains “Defendants’ conduct was objectively unreasonable, and was undertaken recklessly, intentionally, willfully, with malice” and with deliberate indifference to his rights. (Id.) Plaintiff asserts his injuries were “directly and proximately caused by the policies and practices of these Defendants,” the moving force behind the violations alleged. (Id. at 12-13.) Plaintiff asserts that “if not enjoined,” the injuries and damages will continue. (Id. at 13.) He “seeks nominal and states he “also seeks punitive damages solely against the individual Defendants in their individual capacities.” (Id.) The Court construes Plaintiff’s first claim for relief to assert First Amendment right to send and receive mail claims and First Amendment retaliation claims against all Defendants.2 First Amendment - Right to Send & Receive Mail: Legal Standards Appellant, as a prison inmate, enjoys a First Amendment right to send and receive mail. See Thornburgh v. Abbott, 490 U.S. 401, 407 [] (1989). However, a prison may adopt regulations which impinge on an inmate’s constitutional rights if those regulations are “reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 [] (1987). Legitimate penological interests include “security, order, and rehabilitation.” Procunier v. Martinez, 416 U.S. 396, 413 [] (1974). When a prison regulation affects outgoing mail as opposed to incoming mail, there must be a “closer fit between the regulation and the purpose it serves.” Abbott, 490 U.S. at 412 []. However, in neither case must the regulation satisfy a “least restrictive means” test. Id. at 411-13 [] (explaining Procunier v. Martinez). Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995). A single mistake or occasional mishandling of mail, legal or nonlegal, does not state a claim under section 1983. Reynolds v. Potts, 8 F.3d 29 (9th Cir. 1993) (citations omitted) (unpublished); see Crofton v. Roe, 170 F.3d 957, 961 (9th Cir. 1999) (emphasizing that a temporary delay or isolated incident of delay of mail does not violate a prisoner’s First Amendment rights). Similarly, a claim for negligent mishandling or misdirection of mail is also not actionable under section 1983. Rhinehart v. Gomez, 205 F.3d 1352 (9th Cir. 1999) (citing Daniels v. Williams, 474 U.S. 327, 330-32 (1986)). Moreover, a plaintiff must be able to show that he was injured; mere delay in receiving or sending mail does not state a cognizable claim. See Reynolds, 8 F.3d at 29 (citing Morgan v. Montanya, 516 F.2d 1367, 1371 (2d Cir. 1975)). Prison officials may justifiably censor outgoing mail concerning escape plans, information about proposed criminal activity, or the transmittal of encoded messages. Martinez, 416 U.S. at 413. Prison officials may also visually inspect outgoing mail to determine whether it contains contraband material which threatens prison security or material threatening the safety of the

2 recipient. Witherow, 52 F.3d at 266. First Amendment - Right to Send & Receive Mail: Analysis Here, as before (see Doc. 44 at 14), Plaintiff plausibly alleges First Amendment violations against PVSP Defendants Anaya, Van Ingen, Doe #1 and Doe #2 concerning Plaintiff’s right to send and receive mail. He contends these individuals mishandled, obstructed and/or delayed his incoming and outgoing mail. Outgoing mail was not sent, and incoming mail or parcels were significantly delayed or returned without notice to Plaintiff. Liberally construing the third amended complaint and accepting all facts as true, Plaintiff also plausibly alleges First Amendment right to send and receive mail violations against Defendants Frauenheim and Godwin, asserting these supervisory defendants implemented a policy so deficient that it is a repudiation of his constitutional rights and was the moving force behind the constitutional violation.” Redman, 942 F.2d at 1446. As concerns Defendant Gaona, the sole CCWF employee, as before, this Court finds Plaintiff has failed to state a claim upon which relief can be granted. While Plaintiff contends Gaona wrongfully withheld the 1074 approval form permitting correspondence between he and Ms. Winter, obstructing Plaintiff’s ability to send and receive mail and causing him emotional, physical and monetary harm, this single incident is an isolated one. (See Doc. 44 at 14 [“Moreover, Gaona’s alleged misconduct is akin to an isolated incident the Court of Appeals holds is not an actionable constitutional violation”].) See Crofton, 170 F.3d at 961; Reynolds, 8 F.3d at 29; Martin v. Cadena, No. 23-35161, 2024 WL 3949950 (9th Cir. 2024) (Memorandum) (citing Crofton). An isolated incident may state a claim if accompanied by evidence of an improper motive. Smith v. Maschner, 899 F.2d 940, 944 (10th Cir. 1990); White v. Decker, No. 2:24-cv-01685-CKD, 2024 WL 4374276, at *2-3 (E.D. Cal. Oct. 2, 2024) (“the mail interference must involve more than isolated incidents or, if so isolated, be based on an improper motive,” citing Smith). Here, however, the facts alleged as to Gaona’s motive are vague and conclusory, and amount to nothing more than legal conclusion. (See Doc. 45 at 4 [“J. Gaona made a conscious decision to forego her legal obligation and that furthermore, she did so intentionally, with ill will Plaintiff’s [exercise] of his rights”].) No facts pleaded reflect an improper motive. To the extent Plaintiff intended to assert this claim against Defendant Does #3 through #8, no facts are alleged concerning these individuals. As Plaintiff was previously advised, “Doe defendants cannot be served by the United States Marshal until Plaintiff has identified them” and Plaintiff’s “shotgun approach” to these individuals means “it is clear that discovery would not uncover their identities in order to serve process.” (See Doc. 44 at 25.)3 Once again, the Court finds “the Doe defendants, except for John/Jane Does #1 and #2, should be dismissed without prejudice.” (Id.) First Amendment - Retaliation: Legal Standards Prisoners have a First Amendment right to file prison grievances and lawsuits and retaliation against prisoners for exercising this right is a constitutional violation. Rhodes v. Robinson, 408 F.3d 559, 566 (9th Cir. 2005). A claim for First Amendment retaliation in the prison context requires: (1) that a state actor took some adverse action against the plaintiff (2) because of (3) the plaintiff’s protected conduct, and that such action (4) chilled the plaintiff’s exercise of his First Amendment rights, and (5) “the action did not reasonably advance a legitimate correctional goal.” Id. 567-68. To prove the second element, retaliatory motive, plaintiff must show that his protected activities were a “substantial” or “motivating” factor behind the defendant’s challenged conduct. Brodheim v. Cry, 584 F.3d 1262, 1269, 1271 (9th Cir. 2009). Plaintiff must provide direct or circumstantial evidence of defendant’s alleged retaliatory motive; mere speculation is not sufficient. See McCollum v. CDCR, 647 F.3d 870, 882–83 (9th Cir. 2011); accord, Wood v. Yordy, 753 F.3d 899, 905 (9th Cir. 2014). In addition to demonstrating defendant’s knowledge of plaintiff’s protected conduct, circumstantial evidence of motive may include: (1) proximity in time between the protected conduct and the alleged retaliation; (2) defendant’s expressed opposition to the protected conduct; and (3) other evidence showing that defendant’s reasons for the challenged action were false or pretextual. McCollum, 647 F.3d at 882. 3 Plaintiff’s third amended complaint states: “Upon ascertaining the true identities of these Defendants, Plaintiff shall First Amendment - Retaliation: Analysis Here, liberally construing the third amended complaint and accepting the facts alleged as true, Plaintiff plausibly alleges First Amendment retaliation claims against Defendants Anaya, Van Ingen, and Does #1 and #2. Plaintiff contends his submission of numerous grievances concerning the sending and receiving of his mail caused Anaya and Van Ingen to excessively delay, return or reject his mail in the absence of the required notice. And he asserts that in response to one such grievance, Van Ingen “offered him 20 metered envelopes to drop his complaint.” Further, he asserts that Doe #1 failed to timely issue payment to accompany a quarterly package, resulting in a months-long delay and that Doe #2 failed to provide notice of another quarterly package that was returned to the vendor. Plaintiff alleges these actions or inactions chilled the exercise of his First Amendment rights and did not reasonably advance a legitimate correctional goal. Rhodes, 408 F.3d at 567-68. However, to the extent Plaintiff intended to assert this claim against any other named defendant or Does #3 through #8, he fails to do so because no facts are alleged to demonstrate any other named defendant or Does #3 through #8 took some adverse action against him due to his protected conduct and that that action chilled the exercise of his constitutional rights in the absence of a legitimate correctional goal. Claim 2 Plaintiff alleges CDCR’s policy “that prohibits individuals with 1074 correspondence approval from effectuating purchases on behalf of an approved correspondent is without legitimate penological justification” and violates his First Amendment rights. (Doc. 45 at 13.) He maintains a “genuine controversy exists regarding the parties’ rights, privileges, duties and obligations,” that the policy is unconstitutional on its face, entitling him to injunctive relief. Plaintiff also alleges that Defendant Macomber’s policy has caused him “injury and damages that shall persist if not enjoined.” (Id.) The Court construes Plaintiff’s second claim to assert a First Amendment claim regarding a PVSP mail policy. First Amendment – Mail Policy: Legal Standards As set forth above in discussing Plaintiff’s first claim, prisoners have a First Amendment right to send and receive mail, but prison regulations may curtail that right so long as the regulations are reasonably related to legitimate penological interests (including security, order, and rehabilitation) and such regulations need not be the least restrictive available See supra (citing, inter alia, Witherow, 52 F.3d at 265); accord Nordstrom v. Ryan, 856 F.3d 1265, 1272 (9th Cir. 2017); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985). Courts owe “substantial deference to the professional judgment of prison administrators.” Overton v. Bazzetta, 539 U.S. 126, 132 (2003). These standards apply to regulations and practices concerning all correspondence both among prisoners and between a prisoner and non-prisoners. Thornburgh, 490 U.S. at 413. A constitutional challenge to a policy is “‘facial’ [if] it is not limited to plaintiff[’s] particular case, but challenges application of the law more broadly ....” John Doe No. 1 v. Reed, 561 U.S. 186, 194 (2010) (facial challenges “reach beyond the particular circumstances of these plaintiffs.”) Facial challenges are disfavored. Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450 (2008). “A facial challenge to a [policy] is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the [policy] would be valid. The fact that the [policy] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid.” United States v. Salerno, 481 U.S. 739, 745 (1987). In the First Amendment context, however, courts have “recognize[d] ‘a second type of facial challenge,’ whereby a law may be invalidated as overbroad if ‘a substantial number of its applications are unconstitutional, judged in relation to [its] plainly legitimate sweep.’” United States v. Stevens, 559 U.S. 460, 473 (2010) (quoting Wash. State Grange, 552 U.S. at 449 n.6). When a plaintiff presents such a facial challenge to a prison regulation, courts evaluate it using the Turner framework (supra, p. 11), just as it would if the challenge were to a specific application of the regulation. Bahrampour v. Lampert, 356 F.3d 969, 975 (9th Cir. 2004). United States v. Williams, 553 U.S. 285, 293 (2008) (“[I]t is impossible to determine whether a statute reaches too far without first knowing what the statute covers”). First Amendment – Mail Policy: Analysis Plaintiff specifically asserts a facial challenge to the CDCR and PVSP policy prohibiting inmates who are approved correspondents from purchasing items for one another. The Court cannot determine whether the challenged policy is “reasonably related to legitimate penological interests.” Turner, 482 U.S. at 89. Plaintiff asserts that policy “is without legitimate penological justification” and has caused him harm. As the Court cannot interpret the policy concerning the purported prohibition of approved inmate correspondents making purchases for one another, or apply the Turner factors, the Court finds, at the pleading stage, that Plaintiff states cognizable claims for violations of the First Amendment against Defendants Macomber, Frauenheim, Godwin, and Lemon, in their official capacities. To the extent Plaintiff intended to assert a First Amendment claim as it relates to the mail policy against any other named defendant, he has failed to do so. No facts asserted as to these remaining named Defendants indicate they were prison officials or administrators involved in policy making decisions. Because the Court in its two prior screening orders admonished Plaintiff regarding his need to plead facts as to each individual named defendant’s conduct and, as to Claim 2, Plaintiff has not pleaded facts concerning any other named defendant, the Court finds granting Plaintiff further leave to amend would be futile. See Hartman v. CDCR, 707 F.3d 1114, 1129-30 (9th Cir. 2013) (affirming dismissal of first amended complaint and finding leave to amend futile where complaint’s allegations belied plaintiff’s entitlement to relief). Claim 3 Plaintiff asserts Defendant Macomber “retains an unconstitutional policy” preventing Plaintiff from exercising his right to free speech under the California Constitution because that policy prohibits Plaintiff’s “purchases on the behalf of any individual housed by CDCR after having obtained a correspondence approval.” (Doc. 45 at 14.) He maintains there is no “legitimate penological justification” for the policy and asserts “it is deliberately indifferent” to his rights. Article I, Section 2 of the California Constitution Article I, section 2 of the California Constitution provides, in relevant part, “[e]very person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.” Cal. Const. art. I, § 2(a). Section 2(a) generally does not provide a private right of action for money damages. See Cuviello v. City & Cnty. of San Francisco, 940 F. Supp. 2d 1071, 1100 (N.D. Cal. 2013) (“no court … has yet to recognize a private right of action for damages under article I, section 2(a) since Degrassi [v. Cook, 29 Cal.4th 333 (2002)]”) (citations omitted); McAllister v. Los Angeles Unified Sch. Dist., 216 Cal.App.4th 1198, 1216 (2013) (“private right of action was not contemplated under the [California] Constitution, section 2(a)”). However, the “[California] Supreme Court did not preclude actions for declaratory or injunctive relief.” Gifford v. Hornbrook Fire Protection District, No. 2:16-CV-0596-JAM-DMC, 2021 WL 4168532, at *20 (E.D. Cal. Sept. 14, 2021) (citing Degrassi, 29 Cal.4th at 338, 342 n.8). Article I, Section 2 of the California Constitution: Analysis Although there is no private right of action for money damages arising under Article I, section 2 of the California Constitution, because Plaintiff has sued Defendant Macomber in his official capacity only (Doc. 45 at 2) and seeks declaratory and injunctive relief (id. at 18), the Court will permit Plaintiff’s claim to proceed past screening on that basis. To the extent Plaintiff intended to assert this claim against any other named defendant, he has failed to do so; Plaintiff’s claim is specific to Defendant Macomber only. Claim 4 Plaintiff asserts violations of his Fourteenth Amendment due process rights. (Doc. 45 at 14.) He contends he has a protected liberty interest in communicating with individuals outside the institution by mail, and the right to receive notice and to appeal censorship or rejections of his mail. (Id.) Plaintiff maintains “Defendants have failed to provide adequate notice of rejected and/or censored correspondence” intended for him, that “Defendants’ conduct was objectively deliberate indifference” to his rights. (Id. at 14-15.) Plaintiff contends those actions caused him “injury and damages;” he seeks nominal, compensatory and punitive damages against all Defendants but Defendant Macomber. (Id. at 15.) Fourteenth Amendment – Due Process: Legal Standards As previously explained (see Doc. 44 at 18-19), the Due Process Clause of the Fourteenth Amendment protects prisoners from being deprived of a liberty interest without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Prisoners have a liberty interest in the mail that is guaranteed by the Due Process Clause. Ray v. MacDonald, 635 F. App’x 394, 395 (9th Cir. 2016) (quoting Frost v. Symington, 197 F.3d 348, 353 (9th Cir. 1999) (“[Prisoners have] a Fourteenth Amendment due process liberty interest in receiving notice that [their] incoming mail is being withheld by prison authorities”)). “[T]he decision to censor or withhold delivery of a particular letter must be accompanied by minimum procedural safeguards.” Procunier, 416 U.S. at 417-18, overruled on other grounds by Thornburgh, 490 U.S. at 413-14; Ray, 635 F. App’x at 395 (the Fourteenth Amendment guarantees notice of mail withheld and an opportunity to be heard on the matter); Jones v. Shinn, No. 20-16518, 2022 WL 17662799, at *2 (9th Cir. Dec. 14, 2022) (quoting Krug v. Lutz, 329 F.3d 692, 696–97 (9th Cir. 2003) (prisoners have “a liberty interest in the receipt of [their] mailings sufficient to trigger procedural due process guarantees,” which generally should include notice when mail is withheld and the right to two levels of review)); Frost, 197 F.3d at 353. The California Code of Regulations provides procedural safeguards for the withholding of delivery of mail. See Cal. Code Regs. tit. 15, § 3136. That section states that when mail is withheld or rejected, “the inmate shall be informed via CDCR Form 1819,” and the notification should include the reason, disposition, name of the official disallowing the mail, and “the name of the official to whom a grievance can be directed.” Cal. Code Regs., tit. 15, § 3136(a). Fourteenth Amendment – Due Process: Analysis Liberally construing the third amended complaint and accepting all facts as true, Plaintiff plausibly alleges Fourteenth Amendment due process violations against Defendants Anaya, Van concerning withheld or rejected mail, as a pattern and practice, depriving Plaintiff of the opportunity to appeal those decisions. Frost, 197 F.3d at 353. However, Plaintiff fails to assert a cognizable Fourteenth Amendment due process violation against any other named defendant. For example, concerning Defendant Frauenheim, Plaintiff alleges that Frauenheim “granted relief in the form of implementation of notice provision and utilization of the CDCR 1819 forms” and that Frauenheim “expressed that the 1819 forms would be put to use.” (Doc. 45 at 7.) Those facts do not demonstrate violative conduct on Frauenheim’s part. Moreover, to the degree Plaintiff asserts Frauenheim “failed to curb the procedural deficiencies” as a supervisor, the facts alleged are vague and conclusory — Plaintiff provides no cogent time frame for Frauenheim’s granting relief and expressed intention to employ the CDCR 1819 notice form as compared to any subordinate’s refusal or failure to do so. Stated another way, without knowing when Frauenheim purportedly granted Plaintiff’s grievance and how that date compares to any action taken by a subordinate employee or official is not alleged. Concerning Defendant Gaona, the correctional counselor at CCWF, no facts are alleged as to this individual that give rise to a due process violation. And to the extent Plaintiff intended to allege due process violations against the other named defendants (except Defendant Macomber as expressly stated)—Godwin, Lemon, Doe #1, and Does #3 through #8—he fails to do so. As to Godwin and Lemon specifically, Plaintiff fails to assert any facts demonstrating how Godwin or Lemon had knowledge of the constitutional violations alleged. In fact, Plaintiff’s factual allegations are silent as to Lemon. Simply stating supervisors “have either personal involvement, or direct knowledge” is insufficient and amounts to a legal conclusion the Court is not required to accept. Iqbal, 556 U.S. at 678; Fayle, 607 F.2d at 862; Ivey, 673 F.2d at 268. In sum, Plaintiff states cognizable Fourteenth Amendment due process violations against Defendants Anaya, Van Ingen, and Doe #2. Plaintiff has been given two prior opportunities to amend his complaint to cure the deficiencies previously identified. Lastly, the Court finds granting Plaintiff further leave to amend this claim would be futile. Hartman, 707 F.3d at 1129- 30. Claim 5 Plaintiff alleges violations of California Civil Code section 52.1, the Bane Act, against the named Defendants. (Doc. 45 at 15.) He contends “Defendants, acting in conspiracy and/or in concert, with threat, intimidation, and/or coercion” violates his rights under the statute “and interfered with the exercise or the enjoyment of clearly established rights ….” (Id.) Plaintiff asserts Defendants caused him “actual injuries and damages” and “the policies and practices” were the moving force behind the violations. (Id.) He maintains their conduct “was objectively unreasonable, and was undertaken reckless, intentionally, willfully, with malice, and with deliberate indifference” to his rights. (Id.) Government Claims Act: Compliance Standards Under California law, in order to state a tort claim against a public entity or public employee under state law, a plaintiff must allege compliance with the presentment of claims requirements of the California Government Claims Act. See Cal. Gov't Code §§ 945.4, 950.2; Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 627 (9th Cir. 1988); Fisher v. Pickens, 225 Cal.App.3d 708, 718 (1990). The Act’s claims presentation requirements apply to state prisoners. Cal. Gov't Code § 945.6(c). “Before a civil action may be brought against a public entity [or public employee], a claim must first be presented to the public entity and rejected.” Ocean Servs. Corp. v. Ventura Port Dist., 15 Cal.App.4th 1762, 1775 (1993); Cal. Gov't Code § 945.4 (generally barring suit “until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board”). Claims for “injury to person or to personal property” must be presented within six months after accrual. See Cal. Gov't Code § 911.2(a); City of Stockton v. Super. Ct., 42 Cal.4th 730, 738 (2007). A claimant who misses the six-month limitations deadline may file a written application with the public entity for leave to present the late claim within one year of the date of accrual of the cause of action, stating the reason for the delay. Cal. Gov't Code § 911.4. The claimant has six months after a denial of the application to file a petition in the Superior Court for an order relieving the claimant of section Government Claims Act: Compliance Analysis Plaintiff asserts he has exhausted his state law remedies. (Doc. 45 at 3.) Specifically, he states he submitted a government claim form on August 5, 2020, and “a supplemental form” on March 1, 2022. (Id.) The original claim alleged mail interference, opening legal mail outside his presence, “wrongful rejections of correspondence (amended),” failure to adhere to notice provisions, and generally asserted violations of Plaintiff’s First and Fourteenth Amendment rights. (Id.) Plaintiff states: “The response to the initial claim cited complexity of issues best litigated in a court of law.” (Id.) Next, Plaintiff contends “[t]he subsequent claim[] was predicated upon PVSP officials interfering with legal correspondence” and delays regarding mail delivery. (Id.) Plaintiff concludes: “Claims are supplemental and occurred years after filing, yet involve the same issues alleged.” (Id.) In its prior screening order, the Court found that the “allegations are unclear which legal claims Plaintiff identified in his Claim Forms submitted to the DGS,” noting that “any issues raised in his second Claim form filed March 1, 2022, have not been exhausted.” (Doc. 44 at 26.) Nevertheless, the Court gave Plaintiff the benefit of the doubt, inferring the August 5, 2020, form “sought relief as to each of his state law claims” and concluded Plaintiff had “sufficiently alleged compliance with the GCA to consider the merits of his claims.” (Id. at 26-27.) In the third amended complaint, Plaintiff has identified the issues raised in the August 2020 and March 2022 submissions and it appears his state law claims are exhausted. And while Plaintiff does not assert a denial of his March 2022 submission, the Court will reasonably infer one has since been issued and received. Bane Act: Legal Standards The Bane Act protects the civil rights of individuals from interference with federal or state law, carried out by “threat, intimidation, or coercion. Cal. Civ. Code § 52.1(b); Reese v. Cnty. of Sacramento, 888 F.3d 1030, 1040 (9th Cir. 2018). “Claims under section 52.1 may be brought against public officials who are alleged to interfere with protected rights, and qualified immunity is not available for those claims.” Id. at 1040-41. This “‘threat, intimidation or coercion’ element at 1043 (internal citation omitted) (citing and adopting Cornell v. City & Cnty. of San Francisco, 17 Cal.App.5th 766 (2017)). Rather, the Bane Act merely requires that allegations establish that state actors exhibited “specific intent” to violate an individual’s rights. Reese, 888 F.3d at 1043. Bane Act: Analysis Liberally construing the third amended complaint and accepting all facts as true, as before (see Doc. 44 at 28), the Court finds Plaintiff states cognizable Bane Act claims against Defendants Anaya, Van Ingen, Doe #1 and Doe #2, but fails to state such a claim against any other named Defendant. See Iqbal, 556 U.S. at 678; Fayle, 607 F.2d at 862; Ivey, 673 F.2d at 268. Plaintiff has been given two prior opportunities to amend his complaint to cure the deficiencies previously identified. As such, granting Plaintiff further leave to amend this claim would be futile. See Hartman, 707 F.3d at 1129-30. Claim 6 Plaintiff asserts state law intentional infliction of emotional distress (IIED) claims against “Defendants.” (Doc. 45 at 16.) He asserts “Defendants’ conduct … was undertaken with the knowledge and intended purpose of causing Plaintiff emotional and/or physical distress,” that the conduct was outrageous and intended to cause mental anguish. (Id.) Plaintiff contends he suffered severe emotional distress that continues, is distrustful and suspicious of Defendants regarding the handling of his mail and retaliation. (Id.) Plaintiff asserts Defendants’ conduct “was undertaken wrongfully, with malice, and with a specific intent to vex, annoy[, harass],” and to subject him to “emotional and/or physical anguish, and was objectively unreasonable.” (Id. at 17.) IIED: Legal Standards To state a claim for intentional infliction of emotional distress under California law, a plaintiff must allege “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” Lawler v. Montblanc N. Am., LLC, 704 F.3d 1235, 1245 (9th Cir. 2013) (quoting Hughes v. Pair, 46 Cal.4th 1035, 1050 (2009)). The and to be regarded as atrocious, and utterly intolerable in a civilized community.” Butler v. Rueter, No. 2:22-cv-01301 KJN P, 2023 WL 1991591, at *6 (E.D. Cal. Feb. 14, 2023) (quoting Mintz v. Blue Cross of Cal., 172 Cal.App. 4th 1594, 1607 (2009)). IIED: Analysis Although Plaintiff continues to assert IIED claims against all named Defendants, this Court finds Plaintiff fails to state a claim upon which relief can be granted. Despite Plaintiff’s assertions that Defendants’ conduct was outrageous, the Court is not persuaded. Refusing or failing to properly handle Plaintiff’s mail and engaging in retaliatory behavior does not amount to conduct so extreme is exceeds all bounds of decency to be “atrocious and utterly intolerable in a civilized community.” See Gibson v. Dzurenda, No. 3:18-cv-00190-MMD-WGC, 2020 WL 8611152, at *6 (D. Nev. Aug. 28, 2020) (permitting plaintiff to proceed on First Amendment claim that correctional officer improperly opened his legal mail outside of his presence, which resulted in a leak of Plaintiff’s confidential PREA report and subjected Plaintiff to be a target for retaliatory assault, but dismissing related IIED claim for lack of extreme and outrageous conduct), R&R adopted, 2020 WL 8611118 (Oct. 20, 2020). Rather, the conduct is akin to insults, indignities, annoyances or petty oppressions. See Butler, 2023 WL 1991591, at *6 (finding plaintiff failed to sufficiently allege extreme or outrageous conduct by Defendants for transferring inmates during COVID outbreaks and exposing plaintiff and inmates to the virus); Hughes, 46 Cal.4th at 1051 (“Liability for intentional infliction of emotional distress does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities”); cf. Morse v. Cnty. of Merced, No. 1:16-cv-00142-DAD-SKO, 2016 WL 3254034, at *13 (E.D. Cal. June 13, 2016) (denying defendant’s motion to dismiss and stating: “Here, the conduct alleged by plaintiff in his complaint goes far beyond “mere insults” or indignities. Taking those allegations as true, the individual defendants knowingly misrepresented information in order to arrest him and charge him with murder, apparently in order to exact political retribution against plaintiff's father, a local politician who had been critical of the Sherriff's Department. A jury could certainly find this behavior was extreme and outrageous and beyond the bounds of decency”). Defendant. Further, because Plaintiff has been given two prior opportunities to amend his complaint, granting him further leave to amend would be futile. Hartman, 707 F.3d at 1129-30. Claim 7 Plaintiff asserts state law negligence claims against all Defendants. (Doc. 45 at 17.) Plaintiff alleges each Defendant owed a duty to Plaintiff imposed under 15 C.C.R. §§ 3130-3147 (addressed supra), breached that duty, and in doing so directly and proximately caused him injury. (Id.) Plaintiff asserts “[s]upervisor level/capacity Defendants” are liable “through both personal actions, as well as through the acquiescence to the ongoing violations of their subordinates, negligently failed to curb” the violations, prolonging Plaintiff’s injury. (Id.) Plaintiff asserts Defendants’ conduct was objectively unreasonable and “undertaken willfully, recklessly, intentionally, with malice, and with deliberate indifference to the duty of care owed” to him. (Id.) Lastly, Plaintiff contends it was reasonably foreseeable he would suffer injury. (Id.) Negligence: Legal Standards To state a negligence claim, “the plaintiff must show that (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached the duty, and (3) the breach proximately or legally caused (4) the plaintiff’s damages or injuries.” Thomas v. Stenberg, 206 Cal.App.4th 654, 662 (2012). Whether a defendant owes a duty of care in a particular case is a question of law resolved by the court. Centinela Freeman Emergency Med. Assocs. v. Health Net of Cal., Inc., 1 Cal.5th 994, 1012 (2016); see McCurry v. Singh, 104 Cal.App.5th 1170, 1175 (2024) (duty to be determined by court on “case-by-case basis”). “‘Duty’ is merely a conclusory expression used when the sum total of policy considerations lead a court to say that the particular plaintiff is entitled to protection.” Armato v. Baden, 71 Cal.App.4th 885, 893 (1999). In determining whether a duty exists under California law, courts are to weigh, among other things, foreseeability of the harm to the plaintiff, the nexus between a defendants conduct and plaintiff’s injury, and “the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach.” Id. at 893-94 (quoting White v. Southern Cal. Edison Co., 25 Cal.App.4th 442, 447 (1994)). of Univ. of Cal., 17 Cal.3d 425, 435 (1976). An exception to this general rule may exist where the defendant is in a “special relationship” with either the injured plaintiff or a third party whose conduct created the harm that injured the plaintiff. Id. at 436 (citing Rest. 2d Torts, sec. 315). Relevant here, California recognizes that “jailers owe prisoners a duty of care to protect them from foreseeable harm.” Giraldo v. Dep’t of Corr. & Rehab., 168 Cal.App.4th 231, 252 (2008). However, according to at least one court, the analysis in Giraldo “focuses on prison officers’ duty to protect prisoners from risks of ‘physical harm,’ risks to ‘life and health,’ ‘risks of attack by other prisoners,’ and risks of rape. … Nothing in Giraldo imposes on prison officers a duty to protect prisoners from disciplinary action when there is no allegation of physical harm.” Whithall v.Gutierrez, No. 20-cv-00910-CRB, 2024 WL 4505461, at *7 (N.D. Cal. Oct. 15, 2024). Negligence: Analysis As this Court previously determined (see Doc. 44 at 28-29), Plaintiff again states cognizable claims against Defendants Anaya, Van Ingen, Doe #1 and Doe #2 for their purported failure to follow “mail handling procedures” properly, resulting in injury to Plaintiff. Additionally, the Court notes it previously determined that Plaintiff’s assertions concerning supervisory defendants were insufficient to state a claim because Plaintiff could not “demonstrate that the acts and omissions of the supervisors were the proximate cause of his injuries.” (Id. at 29.) Based on Plaintiff’s amended allegations in the third amended complaint, the Court finds Plaintiff fails to sufficiently demonstrate these supervisory defendants owed the duty of care Plaintiff alleges they breached. First, although Plaintiff asserts these supervisory Defendants (who are not alleged to have been directly involved in the mail-related violations described in the third amended complaint) owed a duty to Plaintiff under 15 C.C.R. §§ 3130-3147, the Court has reviewed those mail regulations and disagrees that they impose the duty Plaintiff alleges exists here (e.g., to curb mail- related violations, see Doc. 45 at ¶ 59-60). Second, the general duties imposed by California courts upon jailers by virtue of a jailer’s special relationship vis a vis an inmate in general are limited to keeping inmates safe from asserted by Plaintiff here, particularly when applied to the supervisory defendants. Accordingly, because Plaintiff has failed to cognizably allege that the supervisory defendants owed Plaintiff the duty of care alleged, Plaintiff fails to state a negligence claim against any other named Defendant and granting Plaintiff further leave to amend this claim would be futile. Hartman, 707 F.3d at 1129-30. As an initial matter, the Court notes the docket for this action still reflects Andreana Winter as a plaintiff in this action.4 Nevertheless, Plaintiff’s third amended complaint makes clear that Ms. Winter is not a named plaintiff. (See Doc. 45 at 1-2.) Moreover, “A. Shimmin, Associate Warden at PVSP,” “M. Padilla, Acting Warden at CCWF” and “Ollison, Correctional Counselor II at CCWF” are not named in Plaintiff’s third amended complaint. (Id.) Accordingly, this Court HEREBY ORDERS the Clerk of the Court to terminate plaintiff “Andreana Winter” and defendants “A. Shimmin,” “M. Padilla” and “Ollison” from the docket for this action. Further, for the reasons given above, the undersigned HEREBY RECOMMENDS as follows: 1. That this action PROCEED only on the following claims: a. First Amendment violations against Defendants Anaya, Frauenheim, Godwin, Van Ingen, Doe #1 and Doe #2 concerning Plaintiff’s right to send and receive mail; b. First Amendment retaliation claims against Defendants Anaya, Van Ingen, and Does #1 and #2; c. First Amendment claims concerning mail policy against Defendants Macomber, Frauenheim, Godwin, and Lemon, in their official capacities; 4 In the Court’s First Screening Order issued August 6, 2021, it noted Plaintiff’s claims and Ms. Winter’s claims were “separate and distinct.” (Doc. 11 at 9.) The order additionally discussed the Prison Litigation Reform Act and its filing fee provisions and case management issues involving multiple plaintiffs, before concluding that “Ms. Winter must be dropped as a plaintiff. She may proceed with her own action.” (Id. at 9-10.) The order further stated: “With Ms. Winter dropped as a plaintiff, the defendants employed at the CCWF—M. Padilla, Ollison, J. Gaona, and any John/Jane Doe #3-12 … —must also be dropped as defendants, as they are not linked to [Plaintiff] Kohut’s claims.” (Id. at 10.) Subsequently, when Plaintiff filed his first amended complaint, Ms. Winter was not named as a plaintiff in this action. (See Doc. 22 at 1-2.) Nor was Ms. Winter named in Plaintiff’s second amended complaint. (See Doc. 34 d. A violation of Article I, Section 2, of the California Constitution against Defendant Macomber, in his official capacity; e. Fourteenth Amendment due process violations against Defendants Anaya, Van Ingen, and Doe #2; f. Bane Act claims against Defendants Anaya, Van Ingen, Doe #1 and Doe #2; and g. State law negligence claims against Defendants Anaya, Van Ingen, Doe #1 and Doe #2; 2. That any remaining claims asserted against any other named Defendant be These Findings and Recommendations will be submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(7). Within 14 days after being served with a copy of these Findings and Recommendations, a party may file written objections with the Court. Local Rule 304(b). The document should be captioned, “Objections to Magistrate Judge’s Findings and Recommendations” and shall not exceed fifteen (15) pages without leave of Court and good cause shown. The Court will not consider exhibits attached to the Objections. To the extent a party wishes to refer to any exhibit(s), the party should reference the exhibit in the record by its CM/ECF document and page number, when possible, or otherwise reference the exhibit with specificity. Any pages filed in excess of the fifteen (15) page limitation may be disregarded by the District Judge when reviewing these Findings and Recommendations under 28 U.S.C. § 636(b)(1)(C). A party’s failure to file any objections within the specified time may result in the waiver of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). IT IS SO ORDERED. | Dated: __May 9, 2025 | Wr bo UNITED STATES MAGISTRATE JUDGE 27