1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MYCHAL ANDRA REED, Case No.: 18-CV-361 JLS (LL) CDCR #AE-9821, 12 ORDER GRANTING IN PART AND Plaintiff, 13 DENYING IN PART DEFENDANTS’ vs. MOTIONS TO DISMISS SECOND 14 AMENDED COMPLAINT FOR
15 FAILING TO STATE A CLAIM D. PARAMO; J. LUNA; E. ZENDEJAS; 16 C. CRESPO; N. SCHARR; P. COVELLO; (ECF Nos. 65, 78) 17 A. GARCIA; and N. MARIENTES, 18 Defendants. 19
20 Plaintiff Mychal Andra Reed, currently incarcerated at the Richard J. Donovan 21 Correctional Facility (“RJD”), is proceeding pro se and in forma pauperis in this civil rights 22 action filed pursuant to 42 U.S.C. § 1983. Currently before the Court are the Motions to 23 Dismiss Plaintiff’s Second Amended Complaint (“SAC”) pursuant to Federal Rule of Civil 24 Procedure 12(b)(6) filed by Defendants C. Crespo, J. Luna, D. Paramo, and E. Zendejas 25 (ECF No. 65) and Defendants N. Marientes, N. Scharr, P. Covello, and A. Garcia (ECF 26 No. 78). Plaintiff has filed an Opposition (ECF No. 69) and two additional “responses” 27 (ECF Nos. 83, 84) to the Motions. Defendants have not filed Replies. 28 / / / 1 The matters were taken under submission without oral argument pursuant to Civil 2 Local Rule 7.1(d)(1). See ECF Nos. 66, 82. Having carefully considered Defendants’ 3 Motions, Plaintiff’s SAC and his Oppositions, and the law, the Court GRANTS IN PART 4 AND DENIES IN PART Defendants’ Motions as follows. 5 BACKGROUND 6 On September 5, 2017, Plaintiff was “written up” by Defendant Correctional Officer 7 Zendejas for “‘allegedly’ not obeying an order to ‘get down.’” SAC at 4. Plaintiff is 8 “deaf/hearing impaired.” Id. He “immediately appealed” the rules violation report 9 (“RVR”) issued by Zendejas. Id. The RVR, however, was “affirmed” by Zendejas’ 10 superior, Defendant Lieutenant Luna. Plaintiff claims it was not humanly “possible for 11 him to have heard the ‘alleged’ order.” Id. “After several letters” to Zendejas’ “superiors,” 12 Plaintiff alleges that “the only thing that has occurred is ‘retaliation’” by Zendejas and 13 “more ‘fabricated’ RVR[]s being generated.” Id. Plaintiff claims Zendejas “coerced” 14 Correctional Officer Ochoa, who is not named as a Defendant, to “trash Plaintiff’s cell to 15 incite him to anger” on November 9, 2017. Id. 16 Plaintiff alleges that, during his September 23, 2017 disciplinary hearing regarding 17 the RVR issued by Zendejas, Luna “refused to allow Plaintiff to present witnesses on his 18 behalf.” Id. at 5. As a result, Plaintiff was “found guilty” and the “RVR’s untrue 19 statements were permanently placed on his prison record.” Id. 20 On January 15, 2018, Plaintiff was “handed [an] RVR disciplinary write up 21 that “falsely” alleged that he had “disobeyed an order” issued by Zendejas. Id. at 7. 22 Plaintiff claims he has “absolutely no idea of the ‘alleged’ encounter” which purportedly 23 occurred on January 12, 2017. Id. On this date, Plaintiff alleges it was raining and he was 24 not wearing his hearing aid because “it will short out if it gets wet.” Id. Plaintiff claims 25 he “did not have any encounter” with Zendejas on January 12, 2017. Id. 26 Plaintiff wrote Defendant Warden Paramo “several letters,” along with “several 27 other superiors” at RJD “concerning their subordinates (particularly [correctional officer 28 (“c/o”)] Zendejas)” purportedly “generating phony (‘fabricated’) disciplinary write ups,” 1 “violations of CDCR’s” code of conduct and ethics, and “persistent harassment and 2 retaliation” by Zendejas. Id. at 8. 3 Plaintiff alleges it is “common protocol” for CDCR officials to “retaliate against 4 inmates who complain against ‘crooked’ c/o[]s, by marring inmates c-files (prison records) 5 with ‘fabricated’ discipline documents.” Id. at 9. Plaintiff further alleges that “fabricated” 6 documents are placed in prisoners’ “C-file regardless of [whether] his or her due process 7 rights were violated” during “mock RVR hearings.” Id.at 10. Plaintiff claims that CDCR 8 officials “keep ‘needling’ inmates so they will eventually ‘snap’, so prison officials[’] 9 abusive and ‘sadistic’ conduct can then be justified.” Id. at 10. Plaintiff alleges that prison 10 officials are “causing him mental and emotional damage which will eventually lead to 11 physical ailments.” Id. 12 Plaintiff also claims that prison officials are “intercepting” his legal mail. Id. at 11. 13 He claims that his “efforts to file this complaint have been hampered (hindered)” by RJD 14 correctional officers who refused to “e-file his complaint” by “falsely” claiming they had 15 no “knowledge” of the Southern District of California’s “general order” requiring all 16 complaints to be electronically filed. Id. 17 Plaintiff claims an unspecified “defendant was made aware” of his attempts to 18 electronically file a “complaint to this court” by placing the entire yard on “lockdown.” Id. 19 Plaintiff alleges that RJD prison officials claim that the lockdown was due to a riot was 20 “contrived (erroneous) reasoning.” Id. at 12. Plaintiff claims “there has been no riots or 21 threats of any riots.” Id. Plaintiff “believes retaliation by defendant is also due to him 22 contacting the ‘Office of Internal Affairs’ regarding this ‘pending civil rights complaint in 23 another court (U.S.[D.C.] Case No. cv-12-10727-VAP-JCG).’” Id. Paramo let Plaintiff 24 “know he was aware of [Plaintiff’s contact with the Office of Internal Affairs] via 25 correspondence letter.” Id. 26 Plaintiff had a disciplinary hearing on November 16, 2018, presided over by 27 Defendant Sergeant Scharr, for an “alleged” fight with another inmate. Id. at 13. Plaintiff 28 was found guilty and “given 30 days no dayroom,” while the other inmate was given “only 1 15 days no dayroom.” Id. Plaintiff “believes [the] hearing officer’s actions were ‘overtly’ 2 prejudice toward him” because the other inmate is “white and [Plaintiff] is black.” Id. 3 Plaintiff further “believes [Scharr] has been retaliating against him through subordinates 4 via ‘harassment’” by “using each and every opportunity to place [Plaintiff] in an 5 ‘uncompromising’ position.” Id. 6 On January 6, 2019, Plaintiff alleges Defendant Correctional Officer Garcia 7 “trashed” Plaintiff’s cell and subsequently issued a “fraudulent” RVR against Plaintiff. Id. 8 Plaintiff was “found guilty in RVR hearing” and lost phone privileges for fifteen days 9 based on Garcia’s “false” statements at the hearing. Id. Plaintiff claims his due process 10 rights were violated because the hearing officer, Defendant Sergeant Marientes, refused to 11 speak to a witness requested by Plaintiff. See id. 12 Plaintiff was transferred to Wasco State Prison (“WSP”) on April 3, 2019, for his 13 “eventual transfer to Valley State Prison (VSP) to attend a scheduled 4/8/19 conference at 14 Eastern District Court in Fresno.” Id. at 14. Plaintiff “eventually stayed at WSP for 4 days 15 in ‘solitary’ confinement quarters akin to the ‘hole.’” Id. While housed in confinement, 16 Plaintiff was “made to stay in his cell 24 hours a day, no bedding (bed mat, sheets or quilt) 17 was provided, no shower, no TTY-phone access.” Id. 18 Plaintiff was “transferred back” to RJD on April 6, 2019, “without ever being 19 transferred to VSP or court.” Id. Plaintiff discovered that RJD officials were “alerted by 20 the deputy attorney general” on April 2, 2019, that his “case was now closed” and there 21 was no need for him to appear at the April 8, 2019 conference in the Eastern District of 22 California. Id. Plaintiff alleges that Defendant Warden Covello “used [this] situation to 23 ‘retaliate’ against Plaintiff for utilizing his First Amendment rights.” Id. 24 Plaintiff initiated this action on February 9, 2018, seeking leave to file by mail his 25 civil rights complaint. See generally ECF No. 1. Plaintiff’s First Amended Complaint 26 (“FAC”) against Defendants Paramo, Luna, Zendejas, and Crespo was filed on 27 February 26, 2018, alleging five claims for violation of his First and Eighth Amendment 28 rights. See generally ECF No. 3. 1 Those Defendants moved to dismiss Plaintiff’s claims against them in his FAC on 2 July 30, 2018. See generally ECF No. 15. On January 31, 2019, the Court granted in part 3 and denied in part their motion. See generally ECF No. 30. Specifically, the Court 4 dismissed Plaintiff’s Eighth Amendment claims against Paramo, Luna, Zendejas, and 5 Crespo; dismissed Plaintiff’s First Amendment claims against Crespo and Luna; and 6 dismissed Plaintiff’s First Amendment claims against Zendejas as they related to the 7 September 5, 2017 and November 9, 2017 incidents. See id. at 21. The Court granted 8 Plaintiff leave to file an amended complaint, explicitly warning him that “[a]ny claims not 9 re-alleged in the amended complaint will be considered waived.” Id. at 21–22. 10 Plaintiff filed the operative SAC on May 9, 2019, dropping Crespo and adding 11 Defendants Covello, Garcia, Marientes, and Scharr. See generally ECF No. 60. Plaintiff’s 12 SAC alleges eight “counts” for violation of Plaintiff’s First, Fifth, Eighth, and Fourteenth 13 Amendment constitutional rights. See id. at 4–15. Plaintiff seeks injunctive relief, attorney 14 fees, and compensatory and punitive damages. See id. at 17. 15 LEGAL STANDARD 16 Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss 17 on the grounds that a complaint “fail[s] to state a claim upon which relief can be granted.” 18 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal 19 sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001); Bryan v. City 20 of Carlsbad, 207 F. Supp. 3d 1107, 1114 (S.D. Cal. Mar. 20, 2018). 21 Because Rule 12(b)(6) focuses on the “sufficiency” of a claim rather than the claim’s 22 substantive merits, “a court may [ordinarily] look only at the face of the complaint to decide 23 a motion to dismiss,” Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th 24 Cir. 2002), including the exhibits attached to it. See Fed. R. Civ. P. 10(c) (“A copy of a 25 written instrument that is an exhibit to a pleading is a part of the pleading for all 26 purposes.”); Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 27 (9th Cir. 1990) (citing Amfac Mortg. Corp. v. Ariz. Mall of Tempe, Inc., 583 F.2d 426 (9th 28 Cir. 1978) (holding that “material which is properly submitted as part of the complaint may 1 be considered” in ruling on a Rule 12(b)(6) motion to dismiss). Exhibits that contradict 2 the claims in a complaint, however, may fatally undermine the complaint’s allegations. 3 See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (a plaintiff can 4 “plead himself out of a claim by including . . . details contrary to his claims”) (citing 5 Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295–96 (9th Cir. 1998) (“[Courts] are not 6 required to accept as true conclusory allegations [that] are contradicted by documents 7 referred to in the complaint.”))); see also Nat’l Assoc. for Advancement of Psychoanalysis 8 v. Cal. Bd. of Psychology, 228 F.3d 1043, 1049 (9th Cir. 2000) (holding that courts “may 9 consider facts contained in documents attached to the complaint” in determining whether 10 the complaint states a claim for relief). 11 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 12 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 13 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 14 (2007)); Villa v. Maricopa Cnty., 865 F.3d 1224, 1228-29 (9th Cir. 2017). A claim is 15 facially plausible “when the plaintiff pleads factual content that allows the court to draw 16 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 17 556 U.S. at 678. Plausibility requires pleading facts, as opposed to conclusory allegations 18 or the “formulaic recitation of the elements of a cause of action,” Twombly, 550 U.S. at 19 555, which rise above the mere conceivability or possibility of unlawful conduct. Iqbal, 20 556 U.S. at 678–79; Somers v. Apple, Inc., 729 F.3d 953, 959–60 (9th Cir. 2013). 21 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory 22 statements, do not suffice.” Iqbal, 556 U.S. at 678. While a pleading “does not require 23 ‘detailed factual allegations,’” Rule 8 nevertheless “demands more than an unadorned, the 24 defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 25 550 U.S. at 555). 26 Therefore, “[f]actual allegations must be enough to raise a right to relief above the 27 speculative level.” Twombly, 550 U.S. at 555. “Where a complaint pleads facts that are 28 merely consistent with a defendant’s liability, it stops short of the line between possibility 1 and plausibility of entitlement to relief.” Iqbal, 556 U.S. at 678 (citation and quotes 2 omitted); accord Lacey v. Maricopa Cnty., 693 F.3d 896, 911 (9th Cir. 2012) (en banc). 3 “In sum, for a complaint to survive a motion to dismiss, the non-conclusory ‘factual 4 content,’ and reasonable inferences [drawn] from that content, must be plausibly suggestive 5 of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 6 (9th Cir. 2009) (quoting Iqbal, 556 U.S. at 678). 7 ANALYSIS 8 I. Claims Against Crespo 9 Defendant Crespo seeks to dismiss Plaintiff’s claims against her because Plaintiff 10 failed to rename her as a Defendant in his SAC. See ECF No. 65-1 at 5. 11 Plaintiff initially named Crespo in his FAC, filed February 26, 2018, see generally 12 ECF No. 3, which Defendants moved to dismiss. See generally ECF No. 15. On 13 January 31, 2019, the Court granted in part and denied in part that motion. See ECF No. 14 30 at 21–22. Plaintiff was granted leave to file an amended pleading and cautioned that 15 “[a]ny claims not re-alleged in the amended complaint w[ould] be considered waived.” Id. 16 (citing Lacey, 693 F.3d at 925, 928). 17 Plaintiff filed his SAC on May 9, 2019. See generally ECF No. 60. In his SAC, 18 Plaintiff no longer names Crespo as a Defendant. See id.; see also ECF No. 65-1 at 5. 19 Consequently, all claims against Crespo are considered waived and the Court DISMISSES 20 Crespo from this action. See Lacey, 693 F.3d at 925, 928. 21 II. Eighth Amendment Claims 22 All Defendants seek to dismiss Plaintiff’s Eighth Amendment claims on the grounds 23 that Plaintiff fails to allege any factual allegations sufficient to support an Eighth 24 Amendment claim. See ECF No. 65-1 at 6–7; ECF No. 78 at 10–12. 25 The conditions under which a prisoner is confined and the treatment they receive are 26 subject to scrutiny under the Eighth Amendment, which prohibits cruel and unusual 27 punishment. Farmer v. Brennan, 511 U.S. 825, 832 (1994). The Eighth Amendment 28 “embodies ‘broad and idealistic concepts of dignity, civilized standards, humanity, and 1 decency . . . ,’ against which we must evaluate penal measures.” Estelle v. Gamble, 429 2 U.S. 97, 102 (1976) (quoting Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir. 1968)). 3 Although the Eighth Amendment does not mandate that prisons be comfortable, see Rhodes 4 v. Chapman, 452 U.S. 337, 349 (1981), or that they provide every amenity a prisoner might 5 find desirable, see Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982), it also does not 6 permit inhumane prison conditions. See Farmer, 511 U.S. at 832. 7 An inmate complaining of conditions of confinement must allege facts that, if true, 8 would satisfy both prongs of a bifurcated test. First, a plaintiff must allege that, objectively, 9 the deprivation alleged is “sufficiently serious” such that it results in the denial of “the 10 minimal civilized measure of life’s necessities.” Id. at 834. “Prison officials have a duty 11 to ensure that prisoners are provided adequate shelter, food, clothing, sanitation, medical 12 care, and personal safety.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). “The 13 circumstances, nature, and duration of a deprivation of these necessities must be considered 14 in determining whether a constitutional violation has occurred. ‘The more basic the need, 15 the shorter the time it can be withheld.’” Id. (citing Ray, 682 F.2d at 1259). 16 Second, from a subjective point of view, a plaintiff must allege that the defendants 17 acted with a sufficiently culpable state of mind, i.e., with “deliberate indifference.” Wilson 18 v. Seiter, 501 U.S. 294, 298–99 (1991). “A prison official cannot be found liable under the 19 Eighth Amendment for denying an inmate humane conditions of confinement unless the 20 official knows of and disregards an excessive risk to inmate health or safety; the official 21 must both be aware of facts from which the inference could be drawn that a substantial risk 22 of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. 23 Here, Defendants argue that “Plaintiff fails to allege that he has suffered any serious 24 deprivation, and these are the exact same allegations that the Court previously found 25 lacking to support an Eighth Amendment claim.” ECF No. 65-1 at 7. In his Opposition, 26 Plaintiff claims that his allegations that he was placed in solitary confinement for four days 27 while housed at WSP demonstrate a violation of his Eighth Amendment rights. See ECF 28 No. 69 at 5. 1 The Court finds that Plaintiff has failed plausibly to allege any facts that would 2 demonstrate that any of the named Defendants had any involvement with decisions made 3 by WSP officials and, consequently, that Plaintiff fails to allege that Defendants acted with 4 the “deliberate indifference” required to support the subjective component of his Eighth 5 Amendment claim. Plaintiff offers no facts that suggest Defendants were actually “aware 6 of facts from which the inference could be drawn that a substantial risk of serious harm 7 exist[ed],” and that each of them “also dr[e]w th[at] inference.” Farmer, 511 U.S. at 837; 8 Iqbal, 556 U.S. at 678. Accordingly, the Court GRANTS Defendants’ Motions and 9 DISMISSES Plaintiff’s Eighth Amendment claims in their entirety. 10 III. Fifth Amendment Claims 11 Defendants also move to dismiss Plaintiff’s Fifth Amendment claims found in 12 Counts 2 and 7 on the grounds that he has failed to allege that any of the named Defendants 13 are federal actors. See ECF No. 65-1 at 8; ECF No. 78 at 12–13. 14 The “Fifth Amendment’s due process clause only applies to the federal 15 government.” Bingue v. Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008) (citing Betts v. 16 Brady, 316 U.S. 455, 462 (1942)). Here, Defendants are alleged to be state actors. See 17 generally SAC at 2–3. Consequently, the Court GRANTS Defendants’ Motions and 18 DISMISSES Plaintiff’s Fifth Amendment claims in their entirety. 19 IV. Fourteenth Amendment Due Process Claims 20 Defendants also move to dismiss Plaintiff’s Fourteenth Amendment due process 21 claims. See ECF No. 65-1 at 8–10; ECF No. 78 at 13–14. 22 The Fourteenth Amendment provides that “[n]o state shall . . . deprive any person of 23 life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. “The 24 requirements of procedural due process apply only to the deprivation of interests 25 encompassed by the Fourteenth Amendment’s protection of liberty and property.” Bd. of 26 Regents v. Roth, 408 U.S. 564, 569 (1972). “To state a procedural due process claim, [a 27 plaintiff] must allege ‘(1) a liberty or property interest protected by the Constitution; (2) a 28 deprivation of the interest by the government; [and] (3) lack of process.’” Wright v. 1 Riveland, 219 F.3d 905, 913 (9th Cir. 2000) (quoting Portman v. Cnty. of Santa Clara, 995 2 F.2d 898, 904 (9th Cir. 1993)). 3 A prisoner is entitled to certain due process protections when he is charged with a 4 disciplinary violation. Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003) (citing 5 Wolff v. McDonnell, 418 U.S. 539, 564–71 (1974)). “Such protections include the rights 6 to call witnesses, to present documentary evidence and to have a written statement by the 7 fact-finder as to the evidence relied upon and the reasons for the disciplinary action taken.” 8 Id. These procedural protections, however, “adhere only when the disciplinary action 9 implicates a protected liberty interest in some ‘unexpected matter’ or imposes an ‘atypical 10 and significant hardship on the inmate in relation to the ordinary incidents of prison life.’” 11 Id. (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)); Ramirez v. Galaza, 334 F.3d 12 850, 860 (9th Cir. 2003). 13 Although the level of the hardship must be determined on a case-by-case basis, and 14 “[i]n Sandin’s wake the Courts of Appeals have not reached consistent conclusions for 15 identifying the baseline from which to measure what is atypical and significant in any 16 particular prison system,” Wilkinson v. Austin, 545 U.S. 209, 223 (2005), courts in the 17 Ninth Circuit look to: 18 1) whether the challenged condition ‘mirrored those conditions 19 imposed upon inmates in administrative segregation and protective custody,’ and thus comported with the prison’s 20 discretionary authority; 2) the duration of the condition, and the 21 degree of restraint imposed; and 3) whether the state’s action will invariably affect the duration of the prisoner’s sentence. 22 23 Ramirez, 334 F.3d at 861 (quoting Sandin, 515 U.S. at 486–87); see also Chappell v. 24 Mandeville, 706 F.3d 1052, 1064–65 (9th Cir. 2013). Only if the prisoner alleges facts 25 sufficient to show a protected liberty interest must courts next consider “whether the 26 procedures used to deprive that liberty satisfied Due Process.” Ramirez, 334 F.3d at 860. 27 / / / 28 / / / 1 A. Claims Against Luna 2 Defendant Luna moves to dismiss Plaintiff’s Fourteenth Amendment due process 3 claims against him found in Count 2 of Plaintiff’s SAC. See ECF No. 65-1 at 8–10. 4 In his SAC, Plaintiff alleges that Luna was the hearing officer at his September 23, 5 2017 disciplinary hearing. See SAC at 5. He claims that Luna “refused to allow Plaintiff 6 to present witnesses on his behalf.” Id. As a result, Plaintiff was found guilty of the charges 7 and the “RVR’s untrue statements were permanently placed on his prison record.” Id. In 8 his Opposition, Plaintiff argues that “Luna undeniably violated” his due process rights by 9 “denying him the right to present witnesses during his September 23, 2017 disciplinary 10 RVR hearing.” ECF No. 69 at 1. 11 In his SAC, Plaintiff does not allege any facts to show the type of “atypical and 12 significant hardship” required to invoke a liberty interest under Sandin. “[T]he touchstone 13 of the inquiry into the existence of a protected, state-created liberty interest in avoiding 14 restrictive conditions of confinement is not the language of regulations regarding those 15 conditions but the nature of those conditions themselves ‘in relation to the ordinary 16 incidents of prison life.’” Wilkinson, 545 U.S. at 223 (quoting Sandin, 515 U.S. at 484). 17 Plaintiff alleges no conditions of confinement arising from the actions of Luna that 18 “present[ed] a dramatic departure from the basic conditions of [his] indeterminate 19 sentence.” Sandin, 515 U.S. at 485–86. The Court therefore finds that Plaintiff has failed 20 to allege deprivations legally sufficient to invoke a protected liberty or property interest 21 under Sandin. Consequently, the Court GRANTS Defendants’ Motion and DISMISSES 22 Plaintiff’s Fourteenth Amendment claims against Luna. 23 B. Claims Against Marientes and Garcia 24 Defendants Marientes and Garcia also move to dismiss Plaintiff’s Fourteenth 25 Amendment due process claims against them found in Count 6 of Plaintiff’s SAC. See 26 ECF No. 78 at 14–16. 27 On January 6, 2019, Plaintiff alleges Garcia “trashed” Plaintiff’s cell and 28 subsequently issued a “fraudulent” RVR against Plaintiff. SAC at 13. Plaintiff was “found 1 guilty in RVR hearing” and lost phone privileges for fifteen (15) days based on Garcia’s 2 “false” statements at the hearing. Id. Plaintiff claims his due process rights were violated 3 because the hearing officer, Marientes, refused to speak to a witness requested by Plaintiff. 4 See id. 5 Once again, Plaintiff did not allege any facts to show the type of “atypical and 6 significant hardship” required to invoke a liberty interest under Sandin. Here, Plaintiff 7 claims that he lost phone privileges because of Defendants’ actions. The temporary and 8 brief loss of such privileges as a result of Plaintiff’s disciplinary conviction, however, does 9 not constitute “atypical and significant” hardship under Sandin. See Davis v. Small, 595 10 Fed. App’x 689, 691 (9th Cir. 2014) (“The Due Process Clause itself does not give rise to 11 a protected liberty interest in . . . phone and yard privileges.”). Accordingly, the Court 12 GRANTS Defendants’ Motion and DISMISSES Plaintiff’s Fourteenth Amendment due 13 process claims against Marientes and Garcia. 14 C. Claims Against Covello 15 Finally, Defendant Covello moves to dismiss Plaintiff’s Fourteenth Amendment due 16 process claims against him on the grounds that they “are uncertain” and, “other than stating 17 that Defendant Covello violated his ‘due process rights[,]’ there are no allegations” to 18 support such a claim. ECF No. 78 at 16. 19 The Court agrees that Plaintiff has not alleged any facts that could be liberally 20 construed as a Fourteenth Amendment due process claim against Covello and that Plaintiff 21 fails to shed any light on this claim in his Opposition. While a pleading “does not require 22 ‘detailed factual allegations,’” Rule 8 nevertheless “demands more than an unadorned, the 23 defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 24 550 U.S. at 555). Because Plaintiff’s SAC is devoid of any factual allegations to support 25 a Fourteenth Amendment due process claim against Covello, the Court GRANTS 26 Defendants’ Motion and DISMISSES these claims against Covello. 27 / / / 28 / / / 1 V. Fourteenth Amendment Equal Protection Claims 2 Defendant Scharr moves to dismiss the Fourteenth Amendment equal protection 3 claim against him on the grounds that it is “premised on conjecture and speculation.” ECF 4 No. 78 at 13. 5 In his SAC, Plaintiff alleges Scharr presided over a disciplinary hearing on 6 November 16, 2018, for an “alleged” fight between Plaintiff and another inmate. SAC at 7 13. Plaintiff was found guilty and “given 30 days no dayroom,” while the other inmate 8 was given “only 15 days no dayroom.” Id. Plaintiff “believes hearing officer’s actions 9 were ‘overtly’ prejudice toward him” because the other inmate is “white and [Plaintiff] is 10 black.” Id. 11 “The Equal Protection Clause of the Fourteenth Amendment commands that no State 12 shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is 13 essentially a direction that all persons similarly situated should be treated alike.” City of 14 Cleburne v. Cleburne Living Ctr., 472 U.S. 432, 439 (1985). A plaintiff who is a member 15 of a “suspect” class must show that the “defendants acted with an intent or purpose to 16 discriminate against [him] based upon membership in a protected class.” Barren v. 17 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). 18 Conclusory allegations of discrimination are insufficient to withstand a motion to 19 dismiss, however, unless they are supported by facts that may prove invidious 20 discriminatory intent or purpose. Village of Arlington Heights v. Metro. Hous. Dev. Corp., 21 429 U.S. 252, 265 (1977). Therefore, when an equal protection violation is alleged, the 22 plaintiff must plead facts to show that the defendant “acted in a discriminatory manner and 23 that the discrimination was intentional.” FDIC v. Henderson, 940 F.2d 465, 471 (9th Cir. 24 1991) (citations omitted). “‘Discriminatory purpose’ . . . implies more than intent as 25 volition or intent as awareness of consequences. It implies that the decision maker . . . 26 selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely 27 ‘in spite of,’ its adverse effects upon an identifiable group.” Personnel Adm’r of Mass. v. 28 Feeney, 442 U.S. 256, 279 (1979). 1 Plaintiff argues in his Opposition that Scharr “overtly discriminated against him 2 when he doled out 30 days of loss of privileges to Plaintiff (no dayroom) who is black” and 3 only “15 days of loss of privileges” to the other inmate “who is white.” ECF No. 69 at 4. 4 Defendants argue that Plaintiff’s “allegations are ‘insufficient both because they are 5 conclusory and because they are based on ‘information and belief,’ without providing ‘the 6 factual basis for the belief.’” ECF No. 78 at 13–14 (citing Tatung Co. v. Shu Tze Hsu, 43 7 F.Supp. 3d 1036, 1062 (C.D. Cal. 2014) (quoting Neubronner v. Milken, 6 F.3d 666, 672 8 (9th Cir. 1993))). 9 The Court agrees that Plaintiff’s Equal Protection claim against Scharr fails to 10 provide sufficient facts to show intentional discrimination. See Iqbal, 556 U.S. at 678 11 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 12 statements, do not suffice.”). Accordingly, the Court GRANTS Defendants’ Motion and 13 DISMISSES Plaintiff’s Fourteenth Amendment Equal Protection claims against Scharr. 14 VI. First Amendment Retaliation Claims 15 Defendants move to dismiss Plaintiff’s claims for retaliation in violation of his First 16 Amendment rights. See ECF No. 65-1 at 11–13; ECF No. 78 at 6–9. 17 A First Amendment retaliation claim has five elements. Brodheim v. Cry, 584 F.3d 18 1262, 1269 (9th Cir. 2009). First, a plaintiff must allege that the retaliated-against conduct 19 is protected. Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012). The filing of an 20 inmate grievance is protected conduct. Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 21 2005). 22 Second, a plaintiff must allege the defendants took adverse action against him. Id. 23 at 567. “[T]he mere threat of harm can be an adverse action,” Brodheim, 584 F.3d at 1270, 24 and the adverse action need not be an independent constitutional violation. Pratt, 65 F.3d 25 at 806. 26 Third, a plaintiff must allege a causal connection between the adverse action and the 27 protected conduct. Watison, 668 F.3d at 1114. Because direct evidence of retaliatory intent 28 rarely can be pleaded in a complaint, allegation of a chronology of events from which 1 retaliation can be inferred is sufficient to survive dismissal. Id. (citing Pratt, 65 F.3d at 2 808 (“[T]iming can properly be considered as circumstantial evidence of retaliatory 3 intent.”)). 4 Fourth, a plaintiff must allege the “official’s acts would chill or silence a person of 5 ordinary firmness from future First Amendment activities.” Rhodes, 408 F.3d at 568 6 (internal quotation marks and emphasis omitted). “[A] plaintiff who fails to allege a 7 chilling effect may still state a claim if he alleges he suffered some other harm,” Brodheim, 8 584 F.3d at 1269, that is “more than minimal,” Robinson, 408 F.3d at 568 n.11. 9 Fifth and finally, a plaintiff must allege “that the prison authorities’ retaliatory action 10 did not advance legitimate goals of the correctional institution.” Rizzo, 778 F.2d at 532; 11 Watison, 668 F.3d at 1114–15. 12 A. Claims Against Zendejas 13 Defendant Zendejas moves to dismiss Plaintiff’s First Amendment retaliation claims 14 against her arising from the September 5, 2017 incident. See ECF No. 65-1 at 12–13. This 15 claim in found in “Count 1” of Plaintiff’s SAC. See SAC at 4. Plaintiff also brings 16 retaliation claims against Zendajas in Counts 3, 4, and 5 of his SAC, see id. at 6–12, which 17 are not addressed by the present Motions. See generally ECF Nos. 65-1, 78. 18 On September 5, 2017, Plaintiff claims he was “written up” by Zendejas for 19 “‘allegedly’ not obeying an order to ‘get down[.’]” Id. at 4. Plaintiff is “deaf/hearing 20 impaired.” Id. He “immediately appealed” the RVR issued by Zendejas. Id. The RVR, 21 however, was “affirmed” by Zendejas’s superior, Luna. Id. Plaintiff claims it was not 22 humanly “possible for him to have heard the ‘alleged’ order.” Id. “After several letters” 23 to Zendejas’ “superiors,” Plaintiff alleges that “the only thing that has occurred is 24 ‘retaliation’” by Zendejas and “more ‘fabricated’ RVR’s being generated.” Id. 25 Defendants argue that “Plaintiff fails to raise any facts demonstrating that Defendant 26 Zendejas was substantially motivated by Plaintiff’s complaint against her when she issued 27 him the September 5, 2017 Rules Violation Report.” ECF No. 65-1 at 12. Plaintiff states 28 / / / 1 in his Opposition that Zendejas is an abusive and “retaliatory correctional officer under the 2 color of law.” ECF No. 69 at 1. 3 In its January 31, 2019 Order, the Court found that “Plaintiff ha[d] failed to allege 4 facts that Defendant Zendejas prepared the September 5, 2017 RVR (Claim 1) because of 5 Plaintiff’s protected conduct to file grievances.” ECF No. 30 at 13. Specifically, the Court 6 found that the documents Plaintiff had attached to his FAC “regarding Defendant Zendejas 7 are all dated after the September 5, 2017 RVR was issued.” Id. The Court permitted 8 Plaintiff leave to file an amended pleading to “make a plausible allegation that Defendant 9 Zendejas was aware of Plaintiff’s complaints about her and that the complaints were the 10 substantial or motivating factor for the false RVR.” Id. (citing Brodheim, 584 F.3d at 11 1271). Not only has Plaintiff failed even to attempt to comply with the Court’s January 31, 12 2019 Order by adding factual allegations to support such a claim, but he attaches the same 13 documents showing his complaints regarding Zendejas were submitted after the alleged 14 September 5, 2017 incident. See SAC at 73–83. Accordingly, the Court GRANTS 15 Defendants’ Motion and DISMISSES Plaintiff’s First Amendment retaliation claims 16 against Zendejas arising from the September 5, 2017 incident. 17 B. Claims Against Garcia and Marientes 18 Defendants Garcia and Marientes also move to dismiss Plaintiff’s First Amendment 19 retaliation claims against them. See ECF No. 78 at 7–8. 20 In his SAC, Plaintiff claims that, on January 6, 2019, Garcia “trashed” Plaintiff’s 21 cell and subsequently issued a “fraudulent” RVR against Plaintiff. Id. Plaintiff was “found 22 guilty in RVR hearing” and lost phone privileges for fifteen days based on Garcia’s “false” 23 statements at the hearing. Id. Plaintiff claims his due process rights were violated because 24 the hearing officer, Marientes, refused to speak to a witness requested by Plaintiff. See id. 25 These allegations are devoid of any facts that would support a First Amendment 26 claim against either Garcia or Marientes. Plaintiff fails to allege any facts to support any 27 of the five elements of a First Amendment retaliation claim as set forth in Brodheim, 584 28 / / / 1 F.3d at 1269. The Court therefore GRANTS Defendants’ Motion and DISMISSES 2 Plaintiff’s First Amendment retaliation claims against Garcia and Marientes. 3 C. Claims Against Scharr 4 Finally, Defendant Scharr moves to dismiss Plaintiff’s First Amendment retaliation 5 claims against him. See ECF No. 78 at 8. 6 Plaintiff alleges that, on November 16, 2018, Scharr presided over a disciplinary 7 hearing involving Plaintiff. See SAC at 13. Plaintiff alleges that he “believes Sgt. Scharr 8 has been ‘retaliating’ against him through his subordinates via ‘harassment’” by “using 9 each and every opportunity to place him (Plaintiff) in an ‘uncompromising’ position.” Id. 10 Scharr argues that “Plaintiff cannot maintain a claim on his ‘beliefs’ without 11 supporting factual allegations.” ECF No. 78 at 8. Further, “Plaintiff fails to show that 12 Scharr’s actions were because of Plaintiff’s exercise of a protected right, or that Plaintiff 13 suffered any harm.” Id. 14 The Court agrees that Plaintiff fails to even attempt to allege facts to support each 15 element of a retaliation claim against Scharr. As previously stated, a pleading does not 16 necessarily have to provide detailed factual allegations, but it must contain “more than an 17 unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 18 (quoting Twombly, 550 U.S. at 555). Because Plaintiff’s First Amendment retaliation 19 claims against Scharr fail to meet this standard, the Court GRANTS Defendants’ Motion 20 and DISMISSES Plaintiff’s First Amendment retaliation claims against Scharr. 21 VII. Respondeat Superior Claims 22 Both Defendant Paramo and Defendant Covello move to dismiss all claims against 23 them on the grounds that “[g]overnment officials cannot be held liable for the 24 unconstitutional conduct of their subordinates under a theory of respondeat superior.” 25 ECF No. 65-1 at 13 (citing Iqbal, 556 U.S. at 676; Pembaur v. City of Cincinnati, 475 U.S. 26 469, 479 (1986); Monell v. N.Y. City Dep’t of Social Servs., 436 U.S. 658, 691 (1978)); 27 ECF No. 78 at 16 (citing Iqbal, 556 U.S. at 676; Pembaur, 475 U.S. at 479; Monell, 436 28 U.S. at 691). 1 A. Claims Against Paramo 2 Plaintiff claims he wrote “several letters” to Paramo, the Warden of RJD, as well as 3 “several other superiors at [RJD] concerning their subordinates (particularly c/o Zendejas)” 4 and their “generating phony (‘fabricated’) disciplinary write ups” in violation of CDCR 5 policy. SAC at 8. Plaintiff further alleges that these complaints have “been ignored or 6 inadequately investigated” and, as a result, Zendejas “has remained in her position . . . 7 where she continues to retaliate at will against Plaintiff.” Id. 8 Paramo argues that, even if Plaintiff sent letters to him, there are “no facts 9 establishing that Defendant Paramo received, read, or reviewed those letters, and then 10 knowingly failed to take any action in retaliation for Plaintiff’s exercise of a protected 11 right.” ECF No. 65-1 at 13–14. 12 In its January 31, 2019 Order, the Court found that “Plaintiff had sufficiently alleged 13 a First Amendment retaliation claim as to Defendant Paramo.” ECF No. 30 at 19. The 14 allegations in Plaintiff’s FAC that the Court found sufficiently plead are virtually identical 15 to the factual allegations in Plaintiff’s SAC as to Defendant Paramo’s alleged involvement. 16 The Court therefore DENIES Defendants’ Motion as to Plaintiff’s First Amendment 17 retaliation claims against Paramo. 18 B. Claims Against Corvello 19 Plaintiff claims that he was transferred to WSP to attend a “conference at Eastern 20 District court in Fresno,” which was scheduled for April 8, 2019. SAC at 14. Plaintiff 21 alleges that he was housed there for four days in “solitary confinement,” where he was 22 “made to stay in his cell 24 hours a day, no bedding (bed mat, sheets or quilt) was provided, 23 no shower, no TTY-phone access,” and no change of clothes. Id. Plaintiff was transferred 24 back after four days, however, and claims he later “found out that the [RJD] prison officials 25 were alerted by the deputy attorney general on April 2, 2019 that his case was now closed” 26 and there was no need to attend the court conference. Id. Plaintiff claims Covello, as 27 Warden of RJD, “used [the] situation to ‘retaliate’ against Plaintiff for utilizing his First 28 Amendment rights.” Id. 1 Covello argues that “[t]here are no specific allegations showing that Covello actually 2 knew of, or engaged in, any adverse action against Plaintiff because Plaintiff engaged in 3 protected conduct.” ECF No. 78 at 9. The Court agrees that Plaintiff has failed to allege 4 facts sufficient to support any element of a retaliation claim against Covello. Although 5 Plaintiff must allege that the retaliated-against conduct is protected, Watison, 668 F.3d at 6 1114, Plaintiff fails to identify what “protected conduct” he was engaging in at the time he 7 was transferred to WSP. He further fails to allege how Covello was aware that Plaintiff 8 was purportedly engaging in such conduct. 9 “The inquiry into causation must be individualized and focus on the duties and 10 responsibilities of each individual defendant whose acts or omissions are alleged to have 11 caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) 12 (citing Rizzo v. Goode, 423 U.S. 362, 370–71 (1976); Berg v. Kincheloe, 794 F.2d 457, 460 13 (9th Cir. 1986)); see also Estate of Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir. 14 1999) (“Causation is, of course, a required element of a § 1983 claim.”). A person deprives 15 another “of a constitutional right, within the meaning of section 1983, if he does an 16 affirmative act, participates in another’s affirmative acts, or omits to perform an act which 17 he is legally required to do that causes the deprivation of which [the plaintiff complains].” 18 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 19 Plaintiff has not stated a claim against Covello because Plaintiff fails to allege any 20 facts that show Covello had any direct involvement in Plaintiff’s transfer to another prison 21 or that Covello was aware of Plaintiff filing grievances. Accordingly, the Court GRANTS 22 Defendants’ Motion and DISMISSES Plaintiff’s First Amendment retaliation claims 23 against Covello. 24 VIII. Leave to Amend 25 A pro se litigant is entitled to notice of the deficiencies in the complaint and an 26 opportunity to amend, unless the deficiencies cannot be cured by amendment. See Akhtar 27 v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). 28 / / / 1 The Court previously granted Plaintiff leave to amend his Eighth Amendment claims 2 against Paramo, Luna, Zendejas, and Crespo; his First Amendment retaliation claims 3 against Crespo and Luna; and his First Amendment retaliation claims against Zendejas as 4 they related to the September 5 and November 9, 2017 incidents. See ECF No. 30 at 21. 5 Plaintiff, however, waived his claims against Crespo, see supra page 7, and failed to allege 6 additional facts to cure the previously identified deficiencies in either his First Amendment 7 retaliation claim against Zendejas related to the September 5, 2017 RVR, see supra page 8 16, or his Eighth Amendment claims against Paramo, Luna, Zendejas, and Crespo. See 9 supra page 8. 10 The Court therefore DISMISSES WITH PREJUDICE Plaintiff’s Eighth 11 Amendment causes of action against Paramo, Luna, Zendejas, and Crespo and Plaintiff’s 12 First Amendment retaliation claim against Zendejas to the extent it is predicated on the 13 September 5, 2017 RVR. See, e.g., Davis v. Powell, 901 F. Supp. 2d 1196, 1222 (S.D. Cal. 14 2012) (“Because [Plaintiff] could not plead any additional facts to cure the deficiencies in 15 his pleadings and has already been given leave to amend, he should not be given further 16 leave to amend his claims.”). All other causes of action dismissed pursuant to this Order 17 are DISMISSED WITHOUT PREJUDICE and WITH LEAVE TO AMEND. 18 CONCLUSION 19 In light of the foregoing, the Court GRANTS IN PART AND DENIES IN PART 20 Defendants’ Motions (ECF Nos. 65, 78). Specifically, the Court GRANTS Defendants’ 21 Motions and DISMISSES WITH PREJUDICE (1) Plaintiff’s Eighth Amendment causes 22 of action against Defendants Paramo, Luna, Zendejas, and Crespo; and (2) Plaintiff’s First 23 Amendment cause of action against Zendejas to the extent it is predicated on the September 24 5, 2017 RVR. The Court also GRANTS Defendants’ Motions and DISMISSES 25 WITHOUT PREJUDICE (1) Plaintiff’s Eighth Amendment causes of action against all 26 other Defendants, and (2) all other causes of action against Defendants Crespo, Scharr, 27 Covello, Garcia, and Marientes. Defendants’ Motions are otherwise DENIED. 28 / / / 1 Plaintiff MAY FILE an amended complaint, if any, on or before November 1, 2019. 2 ||Should Plaintiff elect not to file an amended complaint by that deadline, this action will 3 || proceed on Plaintiff's surviving causes of action; however, should Plaintiff choose to file 4 ||an amended complaint, it must cure the deficiencies noted herein and must be complete in 5 ||itself without reference to the original complaint. See S.D. Cal. CivLR 15.1. Any claims 6 || not re-alleged in the amended complaint will be considered waived. See Lacey, 693 F.3d 7 925, 928. 8 IT IS SO ORDERED. 9 10 Dated: October 15, 2019 . tt 1] pee Janis L. Sammartino 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21