Riley v. Vizcarra

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SHANNON RILEY, Case No.: 18cv2911-JAH (AHG) CDCR # E-48875, 12 ORDER GRANTING DEFENDANTS' Plaintiff, 13 MOTION TO DISMISS PURSUANT v. TO FED. R. CIV. P. 12(b)(6) 14

L. VIZCARRA, Correctional Officer; 15 [ECF No. 28] S. ALVAREZ, Correctional Officer; 16 J. LUNA, Correctional Lieutenant, 17 Defendants. 18 19 Plaintiff Shannon Riley is a state prisoner proceeding pro se and in forma pauperis 20 with a Second Amended Complaint (“SAC”) under 42 U.S.C. § 1983. (ECF No. 24.) He 21 alleges that while incarcerated at the Richard J. Donovan Correctional Facility (“RJD”) in 22 San Diego, California, his First, Eighth, and Fourteenth Amendment rights were violated 23 when he was humiliated and spat on during a strip search, falsely charged with possession 24 of alcohol and subjected to excessive force and deliberate indifference to his medical needs 25 in retaliation for filing a complaint about the search, and denied due process during a 26 disciplinary hearing on the possession of alcohol charge. (Id. at 3-11.) 27 Presently before the Court is Defendants’ Motion to Dismiss all but two claims in 28 the SAC. (ECF No. 28.) Plaintiff has filed an Opposition. (ECF No. 32.) Defendants 1 filed a reply. (ECF No. 36.) For the following reasons, the Court GRANTS Defendants’ 2 Motion to Dismiss and DISMISSES all claims in the SAC except the First and Eighth 3 Amendment claims against Defendant Vizcarra based on the events of March 18, 2018.1 4 I. Procedural History 5 Plaintiff initiated this action by filing a Complaint on December 31, 2018, naming 6 as Defendants RJD Correctional Officers Vizcarra, Alvarez and Luna. (ECF No. 1.) He 7 alleged Defendant Vizcarra violated his Eighth Amendment rights during a February 18, 8 2018 strip search in which he spat on and humiliated Plaintiff, and during a March 18, 2018 9 incident in which he used excessive force, was deliberately indifferent to Plaintiff’s 10 medical condition by handcuffing him with his hands behind his back, and placed him in 11 danger of assault by other inmates. (Id. at 10-14.) Plaintiff alleged his First Amendment 12 right to petition for the redress of grievances was violated by Defendant Vizcarra because 13 he took the March 18, 2018 actions in retaliation for a complaint Plaintiff filed about the 14 February 18, 2018 incident, and when Defendants Vizcarra and Alvarez falsely charged 15 him with possession of alcohol in retaliation for that complaint. (Id.) He alleged Defendant 16 Luna violated his Fourteenth Amendment due process rights during the disciplinary on the 17 alcohol possession charge when he denied Plaintiff’s request to call Defendants Vizcarra 18 and Alvarez as witnesses, coached Defendant Alvarez on how to respond to Plaintiff’s 19 written questions, denied requests for urinalysis and testing of evidence, and failed to 20 provide a written statement of the evidence relied on to make the guilty finding. (Id.) 21 Defendants’ motion to dismiss the original Complaint was denied as moot after 22 Plaintiff filed a First Amended Complaint on July 1, 2019. (ECF Nos. 13, 17-18.) The 23 First Amended Complaint presented the same claims against the same Defendants with the 24 25 26 1 Although this matter was randomly referred to United States Magistrate Judge Allison 27 H. Goddard pursuant to 28 U.S.C. § 636(b)(1)(B), the Court has determined that neither a Report and Recommendation nor oral argument is necessary for the disposition of this 28 1 addition of a First Amendment retaliation claim against Defendant Luna. (ECF No. 17.) 2 Defendants’ motion to dismiss the First Amended Complaint was granted on December 3, 3 2019. (ECF No. 23.) The Court dismissed all claims other than the Eighth Amendment 4 claims against Defendant Vizcarra arising from the February 18, 2018 and March 18, 2018 5 incidents, which was not part of the motion to dismiss, notified Plaintiff of the defects of 6 pleading as to the dismissed claims, and granted leave to amend. (Id. at 16.) 7 Plaintiff filed the SAC, the operative pleading in this action, on January 13, 2020, 8 presenting the same claims against the same Defendants as the First Amended Complaint 9 but with additional allegations. (ECF No. 24.) Defendants now move to dismiss all claims 10 from the SAC except the First and Eighth Amendment claims against Defendant Vizcarra 11 arising from the March 18, 2018 incident. (ECF No. 28.) Plaintiff has filed an Opposition 12 (ECF No. 32) and Defendants have filed a reply. (ECF No. 36.) 13 II. Plaintiff’s Allegations in the SAC 14 Plaintiff alleges that on February 18, 2018, while incarcerated at RJD, he interrupted 15 a visit with his girlfriend to urinate. (ECF No. 24 at 3.) Defendant Vizcarra was stationed 16 at the back of the visiting area and allowed Plaintiff access to the inmate restrooms where 17 five other correctional officers were present. (Id.) Plaintiff walked to the area designated 18 for inmates to “strip out” after visitation and stripped down to his boxer shorts. (Id.) As 19 he walked toward the toilet, Defendant Vizcarra abruptly stopped him and ordered him to 20 get completely naked, bend over, and spread his buttocks. (Id.) Plaintiff was “caught off 21 guard” by the order and replied, “I’m not leaving, I just need to use the restroom.” (Id.) 22 Defendant Vizcarra “suddenly became extremely aggressive and yelled at plaintiff, ‘I said 23 fucking strip out,’” and the other correctional officers in the area surrounded him. (Id.) 24 Defendant Vizcarra “stepped extremely close to plaintiff and removed his baton and yelled 25 angrily at plaintiff to ‘strip out’ as saliva flew out of his mouth and landed on plaintiff’s 26 face.” (Id.) When he asked why he needed to get naked just to urinate, Defendant Vizcarra 27 moved closer and, with their noses touching, yelled “with extreme aggression” to strip out, 28 sending more saliva into Plaintiff’s face, and he backed away and complied. (Id. at 4.) 1 Plaintiff filed a California Department of Corrections and Rehabilitation (“CDCR”) 2 602 form complaint against Defendant Vizcarra regarding that incident. (Id.) Although 3 Plaintiff states that a copy of that complaint is attached to the SAC as Exhibit A (id.), and 4 refers to other attached exhibits throughout the SAC, there are no attachments to the SAC, 5 and he appears to be referring to the exhibits attached to the First Amended Complaint. A 6 copy of the CDCR 602 complaint is attached to the First Amended Complaint as Exhibit 7 A. (ECF No. 17 at 13-14.) He claims in the SAC that Defendant Vizcarra spit in his face 8 and humiliated him in violation of the Eighth Amendment. (ECF No. 24 at 16.) 9 Plaintiff alleges that a few weeks later, on March 18, 2018, as he approached the 10 visiting area for another visit with his girlfriend, Defendant Vizcarra, while checking his 11 identification before entering, said: “So you thought I wouldn’t hear about your piece of 12 shit 602? You fucking inmates are a bunch of whiners.” (Id. at 4.) Plaintiff proceeded to 13 the desk to be given a seat assignment when Defendant Vizcarra approached him from 14 behind and said to the desk officer Defendant Alvarez: “This is the piece of shit whiner I 15 told you about.” (Id. at 5.) Plaintiff replied to Defendant Vizcarra: “You just won’t stop, 16 huh?” (Id.) Defendant Vizcarra then said: “You just stepped in shit and don’t know it.” 17 (Id.) Plaintiff proceeded with his visit during which he had a cup of coffee; when he gave 18 his empty coffee cup to Inmate Acosta, an inmate porter who was sweeping the area, to 19 throw away, Defendant Alvarez grabbed the cup from Inmate Acosta and told Plaintiff: 20 “Your visit is terminated! Get up and let’s go!” (Id. at 5-6.) When Plaintiff asked, “for 21 what!?,” Defendant Vizcarra angrily ordered Plaintiff “to stand up and place his hands 22 behind his back,” and other officers responded. (Id. at 6.) Plaintiff told the officers he had 23 a medical chrono which excused him from being restrained with his hands behind his back 24 and showed them a copy of the chrono. (Id.) Although he states that a copy of the medical 25 chrono is attached to the SAC as Exhibit C (id. at 7), it is not, but a copy is attached to the 26 First Amended Complaint as Exhibit C. (ECF No. 17 at 27-28, 32, 46.) 27 Plaintiff alleges that despite his documented medical condition which prevents him 28 from placing his hands behind his back, Defendant Vizcarra twisted his right wrist, which 1 was in a brace, forced his hands behind his back, slammed him against a wall, and 2 handcuffed his hands behind his back. (ECF No. 24 at 6-7.) Defendant Vizcarra left 3 Plaintiff handcuffed in the “non-contact visiting tank” for 45 minutes to an hour during 4 which he experienced “excruciating pain,” and “begged and pleaded” and screamed 5 hysterically for someone to uncuff him. (Id.) Only after a visitor complained did 6 Defendant Vizcarra return to uncuff Plaintiff and order him to “strip out.” (Id.) Plaintiff 7 was unable to move his right arm after the handcuffs were removed and had pain in his 8 neck and back. (Id.) Defendant Vizcarra entered the visiting tank, threatened Plaintiff with 9 his baton, and said he would “crush [Plaintiff’s] skull” if he moved. (Id. at 8.) Defendant 10 Vizcarra pulled Plaintiff out of the room, slammed him against the wall, and twisted his 11 wrist. (Id.) After again ordering him to “strip out,” which Plaintiff protested, Defendant 12 Vizcarra put him back in handcuffs and returned him to the non-contact tank for 30 minutes 13 where he continued screaming due to the unbearable pain. (Id.) Defendant Vizcarra then 14 uncuffed Plaintiff and told him: “Now go write your 602 about that while I write you up 15 for having pruno and we’ll see who wins.” (Id.) 16 Plaintiff states he has medical issues with his back, neck and wrist as a result of 17 Defendant Vizcarra’s actions (id. at 9) and refers to medical documentation and complaints 18 regarding those injuries which he states are attached to the SAC as Exhibits F and G (id. at 19 8-9), which are not, but which are attached to the First Amended Complaint as Exhibits F 20 and G. (ECF No. 17 at 58-65.) He filed inmate complaints against Defendant Vizcarra 21 claiming violations of his Eighth Amendment rights. (ECF No. 24 at 9.) He claims in the 22 SAC that Defendant Vizcarra was deliberately indifferent to his medical needs and to the 23 threat of assault by other inmates and used excessive force in violation of the Eighth 24 Amendment, and did so in retaliation for the complaints against him in violation of his First 25 Amendment right to petition for the redress of grievances, and that Defendants Vizcarra 26 and Alvarez filed the false charges of possession of alcohol in retaliation for filing those 27 complaints in violation of his First Amendment right to petition for the redress of 28 grievances. (ECF No. 24 at 16-17.) 1 On May 13, 2018, Plaintiff appeared before hearing officer Defendant Luna for a 2 hearing on a Rules Violation Report (“RVR”) for possession of alcohol during the March 3 11, 2018, visit. (Id. at 9.) He was found guilty of possession of alcohol and assessed 120- 4 day loss of custody credits, a 30-day suspension of visiting privileges and 90-days loss of 5 pay. (Id. at 11.) He refers to Exhibit H-K as documentation of the RVR hearing and his 6 appeal (id. at 9-10), which are not attached to the SAC but are attached to the First 7 Amended Complaint as Exhibits H-K. (ECF No. 17 at 67-101.) He claims Defendant 8 Luna violated his Fourteenth Amendment due process rights because: (1) his request to call 9 Defendants Alvarez and Vizcarra as witnesses was denied; (2) although he was allowed to 10 provide a list of questions for Defendant Alvarez, Defendant Luna read the questions and 11 directed Defendant Alvarez how to answer; and (3) his request for urinalysis was denied 12 and no testing was performed on the cup he handed to the inmate porter to throw away to 13 prove it contained alcohol despite his request for testing as provided for by CDCR 14 regulations. (Id. at 9-11, 16-17.) 15 III. Defendants’ Motion to Dismiss 16 Defendants move to dismiss all claims in the SAC other than Plaintiff’s First and 17 Eighth Amendment claims against Defendant Vizcarra for his actions during the March 18, 18 2018 incident, which were allegedly taken in retaliation for Plaintiff’s complaint about the 19 February 18, 2018 incident. (ECF No. 28.) Defendant Alvarez contends Plaintiff has not 20 stated a First Amendment retaliation claim against her because there are no allegations she 21 took any adverse action against Plaintiff because of the CDCR 602 complaint against 22 Defendant Vizcarra. (Id. at 15-18.) Rather, Defendant Alvarez contends Plaintiff merely 23 speculates that her actions were taken in retaliation for filing the complaint, and that he 24 fails to allege the actions she did take, that she was the reporting employee in the RVR 25 charging him with possession of inmate-manufactured alcohol (“pruno”) and that she took 26 the cup from the inmate porter to whom Plaintiff handed it and destroyed it before it could 27 be tested for the presence of alcohol, constitute adverse actions without a legitimate 28 penological purpose. (Id. at 18.) 1 Defendants move to dismiss Plaintiff’s Fourteenth Amendment due process claim 2 against Defendant Luna on the basis that the RVR attached to the First Amended 3 Complaint, a copy of which is also attached to the Motion to Dismiss, contradicts the 4 allegations in the SAC that Plaintiff was denied due process. (Id. at 18-21.) Defendants 5 argue the RVR shows Plaintiff received all the process he was due, including notice of the 6 charge, an opportunity to be heard, and a written statement explaining the reasons for the 7 guilty finding and identifying the evidence relied upon. (Id.) 8 Finally, Defendants move to dismiss Plaintiff’s Eighth Amendment excessive force 9 claim against Defendant Vizcarra arising from the February 18, 2018 incident, arguing that 10 no force was used during that encounter and Plaintiff merely alleges Defendant Vizcarra 11 spat in his face and humiliated him. (Id. at 21-22.) Defendant Vizcarra also contends that 12 even if he violated the Eighth Amendment during that incident he is entitled to qualified 13 immunity because no clearly established law exists to place him on notice that his actions 14 were unconstitutional. (Id. at 23-24.) 15 Plaintiff argues in his Opposition that the Court is required to liberally construe the 16 allegations in the verified pro se SAC, draw any inferences from his allegations in the light 17 most favorable to him, and give him the benefit of any doubt. (ECF No. 32 at 1.) He 18 contends it is improper for Defendants to rely on the RVR attached to his First Amended 19 Complaint or make any reference to that version of his complaint because the operative 20 pleading in this action is now the SAC to which he has not attached a copy of the RVR. 21 (Id. at 2.) He presents additional factual allegations in his Opposition supporting the claims 22 in the SAC and argues that he has plausibly alleged constitutional violations as to all claims. 23 (Id. at 1-10.) 24 Defendants reply that reliance on the RVR attached to the First Amended Complaint 25 is appropriate because it is referenced repeatedly in the SAC and is attached to the motion 26 to dismiss. (ECF No. 36 at 2.) They argue that any factual allegations in Plaintiff’s 27 Opposition not contained in the SAC are not properly before the Court on a motion to 28 dismiss and in any case fail to cure the pleading defects of the claims. (Id. at 2-3.) 1 1. Legal Standards 2 Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss 3 on the grounds that a complaint “fail[s] to state a claim upon which relief can be granted.” 4 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal 5 sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “To survive 6 a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 7 ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 8 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially 9 plausible “when the plaintiff pleads factual content that allows the court to draw the 10 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 11 U.S. at 678. Plausibility requires pleading facts, as opposed to conclusory allegations or 12 the “formulaic recitation of the elements of a cause of action,” Twombly, 550 U.S. at 555, 13 which rise above the mere conceivability or possibility of unlawful conduct. Iqbal, 556 14 U.S. at 678-79. “Threadbare recitals of the elements of a cause of action, supported by 15 mere conclusory statements, do not suffice.” Id. at 678. 16 “Factual allegations must be enough to raise a right to relief above the speculative 17 level.” Twombly, 550 U.S. at 555. “In sum, for a complaint to survive a motion to dismiss, 18 the non-conclusory ‘factual content,’ and reasonable inferences [drawn] from that content, 19 must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret 20 Serv., 572 F.3d 962, 969 (9th Cir. 2009), quoting Iqbal, 556 U.S. at 678. 21 2. First Amendment Retaliation Claims 22 Plaintiff claims Defendants Vizcarra, Alvarez and Luna violated his First 23 Amendment right to petition for the redress of grievances by retaliating against him for 24 filing the CDCR complaint against Defendant Vizcarra after the February 18, 2018 strip 25 search incident. He claims Defendant Vizcarra’s actions on March 18, 2018, including 26 twisting his wrist and handcuffing his hands behind his back in violation of his medical 27 chrono, use of threatening language, slandering him which placed him in danger of assault 28 by other inmates, and involvement in the RVR which falsely charged him with possession 1 of alcohol, were taken in retaliation for filing the complaint against him, failed to advance 2 a legitimate correctional goal, and chilled the exercise of his First Amendment rights. (ECF 3 No. 24 at 15-16.) Plaintiff claims Defendant Alvarez retaliated against him by filing the 4 RVR charging him with possession of alcohol during the March 18, 2018 visit and by 5 destroying the cup she took from the inmate porter Plaintiff handed it to rather than placing 6 it in evidence. (Id. at 10-11, 16-17.) Although Plaintiff claims Defendant Luna retaliated 7 against him when he violated his due process rights by presiding over a “sham” disciplinary 8 hearing, he does so in an entirely conclusory fashion, not even indicating what allegedly 9 prompted Defendant Luna to retaliate. (Id. at 17.) 10 “Prisoners have a First Amendment right to file grievances against prison officials 11 and to be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th 12 Cir. 2012). “Within the prison context, a viable claim of First Amendment retaliation 13 entails five basic elements: (1) An assertion that a state actor took some adverse action 14 against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action 15 (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not 16 reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 17 567-68 (9th Cir. 2005). The adverse action need not be an independent constitutional 18 violation. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995); Brodheim v. Cry, 584 F.3d 19 1262, 1270 (9th Cir. 2009) (“[T]he mere threat of harm can be an adverse action.”); see 20 also Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001) (“[A] retaliation claim may 21 assert an injury no more tangible than a chilling effect on First Amendment rights.”) 22 Plaintiff must allege a retaliatory motive, that is, a causal connection between the adverse 23 action and his protected conduct. Watison, 668 F.3d at 1114. 24 Plaintiff has adequately alleged the first element because the filing of an inmate 25 grievance is protected conduct. Rhodes, 408 F.3d at 568; Watison, 668 F.3d at 1114 26 (“Prisoners have a First Amendment right to file grievances against prison officials and to 27 be free from retaliation for doing so.”) Plaintiff has also satisfied the second element, as 28 the alleged use of excessive force and deliberate indifference by Defendant Vizcarra, the 1 filing of an allegedly false RVR by Defendant Alvarez, and the allegedly “sham” 2 disciplinary hearing presided over by Defendant Luna, all constitute “adverse action.” See 3 Rhodes, 408 F.3d at 568 (alleged assault by prison officials constituted an adverse action); 4 see also e.g. Stevenson v. Harmon, No. 07-CV-1619 W (NLS), 2009 WL 10700432, at *4 5 (S.D. Cal. July 30, 2009) (noting that prison disciplinary proceedings constitute adverse 6 action). 7 In the previous Order granting Defendants’ motion to dismiss the First Amended 8 Complaint, the Court found Plaintiff had failed to allege Defendants Vizcarra and Alvarez 9 were aware he had filed a complaint or their actions were motivated by such knowledge, 10 and that Plaintiff’s mere reliance on the timing of the events was insufficient by itself to 11 satisfy the causation element. (ECF No. 23 at 8-10, citing Pratt, 65 F.3d at 807-08 12 (concluding that, in the absence of factual allegations to the contrary, it would be “sheer 13 speculation” to assume that prison officials were aware of an inmate’s First Amendment 14 activity and retaliated on that basis), and id. at 808 (“Timing alone . . . is generally not 15 enough to support an inference that prison officials took an adverse action against a 16 prisoner in retaliation for the prisoner’s participation in protected conduct.”) The Court 17 granted Defendants’ motion to dismiss the First Amendment retaliation claims as to 18 Defendants Vizcarra and Alvarez, and sua sponte dismissed the retaliation claim against 19 Defendant Luna as conclusory, all with leave to amend. (Id.) 20 In his Opposition to Defendants’ motion to dismiss the SAC, Plaintiff again relies in 21 part on the timing of events, but also points out he has now alleged in the SAC that 22 Defendants Vizcarra and Alvarez were aware he had filed a complaint, as Defendant 23 Vizcarra made a reference to Plaintiff’s CDCR 602 complaint at the beginning of the 24 March 18, 2018 visit, both to Plaintiff and to Defendant Alvarez. (ECF No. 32 at 2-3.) 25 Plaintiff alleges in the SAC that when he entered the visiting area on March 18, 2018, 26 Defendant Vizcarra said: “So you thought I wouldn’t hear about your piece of shit 602? 27 You fucking inmates are a bunch of whiners.” (ECF No. 24 at 4.) Defendant Vizcarra 28 then allegedly told Defendant Alvarez: “This is the piece of shit whiner I told you about,” 1 referring to Plaintiff, and when Plaintiff complained aloud, Defendant Vizcarra said: “You 2 just stepped in shit and don’t know it.” (Id. at 5.) Plaintiff proceeded with his visit during 3 which he had a cup of coffee; when he gave his empty coffee cup to an inmate porter to 4 throw away, Defendant Alvarez grabbed the cup from the porter, and told Plaintiff: “You’re 5 visit is terminated! Get up and let’s go!” (Id. at 5-6.) When Plaintiff asked, “for what!?,” 6 Defendant Vizcarra angrily ordered Plaintiff “to stand up and place his hands behind his 7 back,” and thereafter allegedly restrained Plaintiff with excessive force and with deliberate 8 indifference to his medical needs. (Id. at 6-8.) 9 Defendants do not dispute Plaintiff has adequately alleged a plausible claim of 10 retaliation against Defendant Vizcarra. The allegations in the SAC with respect to 11 Defendant Vizvarra go beyond the mere timing of events and allege he was aware of the 12 complaint Plaintiff filed against him regarding the events of February 18, 2018 and, in 13 retaliation therefore, reacted angrily to Plaintiff handing a coffee cup to the inmate porter 14 to throw away by terminating his visit, and restrained him with excessive force and 15 deliberate indifference to his medical needs. With respect to Defendant Alvarez, however, 16 Defendants contend the allegations are speculative with respect to whether she acted with 17 a retaliatory motive when she took the alleged actions against Plaintiff or whether those 18 actions failed to advance a legitimate penological objective. (ECF No. 28 at 17-19.) 19 Plaintiff states in his Opposition that the timing of events implies retaliation because 20 Defendant Alvarez filed the RVR charging him with possession of alcohol shortly after she 21 was informed by Defendant Vizcarra that Plaintiff had filed a complaint about Defendant 22 Vizcarra’s actions on February 18, 2018. (ECF No. 32 at 4.) In his Opposition, Plaintiff 23 presents allegations not contained in the SAC that Defendant Alvarez “continued to attempt 24 to intimidate plaintiff at every opportunity she had” after being informed by Defendant 25 Vizcarra about the complaint. (Id.) The new allegations presented in opposition to the 26 motion to dismiss are not properly before the Court. See Schneider v. California Dept. of 27 Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998) (“In determining the propriety of a 28 Rule 12(b)(6) dismissal, a court may not look beyond the complaint to a plaintiff’s moving 1 papers, such as a memorandum in opposition to a defendant’s motion to dismiss.”) Even 2 to the extent the new allegations could be considered here, or Plaintiff could be allowed to 3 further amend the SAC to include them, they are vague and conclusory. In any case, 4 Defendant Alvarez’s mere awareness of Plaintiff’s complaint against Defendant Vizcarra 5 does not plausibly allege Defendant Alvarez acted in retaliation when she filed the RVR or 6 destroyed the cup rather, the only adverse actions Plaintiff alleges were taken against him 7 by Defendant Alavarez. Although Plaintiff now alleges Defendant Alvarez was told by 8 Defendant Vizcarra that Plaintiff had filed a complaint against Defendant Vizcarra, his 9 claim still relies on speculation arising solely from the timing of events to establish a 10 retaliatory motive on the part of Defendant Alvarez. This is the same defect of pleading 11 upon which this claim was dismissed from the First Amended Complaint. 12 Plaintiff has once again failed to plausibly allege a First Amendment retaliation 13 claim against Defendant Alvarez. In addition, the allegations of retaliation against 14 Defendant Luna in the SAC are once again entirely conclusory and once again fail to state 15 a claim for the reasons set forth in the Court’s previous Order of dismissal. The Court 16 GRANTS Defendants’ motion to dismiss Plaintiff’s First Amendment claims against 17 Defendants Alvarez and Luna. Because Plaintiff has been informed of the deficiencies of 18 pleading with respect to these claims and has failed to correct them in the SAC, the 19 dismissal of these claims is without further leave to amend. 20 3. Fourteenth Amendment Due Process Claim 21 Plaintiff claims Defendant Luna, the hearing officer at the RVR hearing on the 22 charge of possession of alcohol, violated his Fourteenth Amendment due process rights 23 because: (1) he denied Plaintiff’s request to call Defendants Alvarez and Vizcarra as 24 witnesses; (2) although he allowed Plaintiff to provide a list of questions for Defendant 25 Alvarez, Defendant Luna read the questions and directed Defendant Alvarez how to 26 respond; and (3) Plainitff’s request for urinalysis was denied and no testing was performed 27 on the cup he handed to the inmate porter to throw away to prove it contained alcohol, 28 despite his request for testing as provided for by CDCR regulations. (ECF No. 24 at 9-11, 1 16-17.) Plaintiff states he was found guilty of possession of alcohol and assessed 120-day 2 loss of custody credits, a 30-day suspension of visiting privileges, and 90-days loss of pay. 3 (Id. at 11.) 4 The Fourteenth Amendment provides that “[n]o state shall . . . deprive any person of 5 life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. “The 6 requirements of procedural due process apply only to the deprivation of interests 7 encompassed by the Fourteenth Amendment’s protection of liberty and property.” Bd. of 8 Regents v. Roth, 408 U.S. 564, 569 (1972). “To state a procedural due process claim, [a 9 plaintiff] must allege ‘(1) a liberty or property interest protected by the Constitution; (2) a 10 deprivation of the interest by the government; [and] (3) lack of process.’” Wright v. 11 Riveland, 219 F.3d 905, 913 (9th Cir. 2000), quoting Portman v. Cnty. of Santa Clara, 995 12 F.2d 898, 904 (9th Cir. 1993). 13 A prisoner is entitled to certain due process protections when he is charged with a 14 disciplinary violation. Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003), citing 15 Wolff v. McDonnell, 418 U.S. 539, 564-571 (1974). “Such protections include the rights 16 to call witnesses, to present documentary evidence and to have a written statement by the 17 fact-finder as to the evidence relied upon and the reasons for the disciplinary action taken.” 18 Id.; see also Wolff, 418 U.S. at 566 (explaining that an inmate must be afforded an 19 opportunity “to call witnesses and present documentary evidence in his or her defense when 20 permitting him to do so will not be unduly hazardous to institutional safety or correctional 21 goals.”) 22 In the Court’s prior Order of dismissal, the Court dismissed Plaintiff’s Fourteenth 23 Amendment due process claim against Defendant Luna without prejudice because the First 24 Amended Complaint did not allege facts sufficient to show that the RVR proceedings 25 implicated a liberty interest which would trigger the procedural protections under Wolff, 26 which “adhere only when the disciplinary action implicates a protected liberty interest in 27 some unexpected matter or imposes an atypical and significant hardship on the inmate in 28 relation to the ordinary incidents of prison life.” (ECF No. 23 at 11-13, quoting Sandin v. 1 Conner, 515 U.S. 472, 484 (1995).) The Court pointed out that the loss of good time 2 credits, visitation privileges, prison employment or assessment of points on an inmate’s 3 prison record do not implicate such a liberty interest. (Id. at 12-13.) Plaintiff has not cured 4 this defect of pleading in the SAC, as he alleges the same deprivations. In his Opposition, 5 Plaintiff states that he “stands on his argument as stated in the Second Amended 6 Complaint” that those deprivations state a claim for deprivation of protected liberty 7 interests. (ECF No. 32 at 4.) Accordingly, Plaintiff has once again failed to state a 8 Fourteenth Amendment due process claim against any Defendant for the reasons set forth 9 in the Court’s prior Order of dismissal. 10 In addition to the finding in the prior Order of dismissal that Plaintiff failed to allege 11 a liberty interest protected by the Fourteenth Amendment, the Court found that even if he 12 could satisfy that requirement he still failed to state a due process claim. (ECF No. 23 at 13 13-16.) With respect to the denial of his request for urinalysis or testing or examination of 14 the cup from which he was allegedly drinking, Wolff gives the inmates the right to present 15 evidence subject to the qualification that “[w]hen prison officials limit an inmate’s efforts 16 to defend himself, they must have a legitimate penological reason.” (Id. at 13-14, quoting 17 Koenig v. Vannelli, 971 F.2d 422, 423 (9th Cir. 1992).) As the Court previously informed 18 Plaintiff, to the extent he alleges Defendant Luna or other prison officials violated due 19 process by failing to adhere to the regulations governing urinalysis or field testing of the 20 paper cup, he fails to state a claim because prison regulations are “primarily designed to 21 guide correctional officials in the administration of a prison” and are “not designed to 22 confer rights on inmates.” Sandin, 515 U.S. at 481-82; see also Singleton v. Kernan, No. 23 3:16-cv-2462-BAS-NLS, 2019 WL 142190, at *8 (S.D. Cal. Jan. 8, 2019) (collecting 24 cases). The regulations Plaintiff cites are permissive, not mandatory, and did not require 25 prison officials to test the contents of the cup or Plaintiff’s urine, whether on their own or 26 at Plaintiff’s request. See generally 15 Cal. Code Reg. § 3290(b), (c) (providing that field 27 testing “may be performed” and that urine samples “may be done” for certain specified 28 reasons). Thus, Plaintiff has not alleged the regulations were violated in this case. 1 Plaintiff alleges Defendant Luna violated the Wolff requirement that a prisoner be 2 provided with “a written statement of the factfinders as to the evidence relied upon and the 3 reasons for the disciplinary action taken.” Wolff, 418 U.S. at 563. As set forth in the prior 4 Order of dismissal, the RVR attached to the First Amended Complaint indicated that 5 Defendant Luna provided Plaintiff with a narrative which stated that “[a]ll evidence was 6 considered during this hearing and the preponderance of that evidence as described herein 7 supports a GUILTY finding for violating Section 3016(a), with the specific act described 8 as: ‘Possession of Alcohol[.]’” (ECF No. at 14-15, citing Exhibit H to the First Amended 9 Complaint.) Defendant Luna went on to explain why, contrary to Plaintiff’s argument, 10 testing of the alleged alcohol was not necessary and why possession of alcohol constituted 11 a violation of applicable prison regulations. (See id.) Additionally, in a section captioned 12 “EVIDENCE,” Defendant Luna laid out the evidence used to support his finding of guilt, 13 namely Defendant Alvarez’s statements in the RVR and Plaintiff’s statement. (See id.) 14 This is sufficient to satisfy the due process requirements in Wolff. In the prison 15 setting all that is necessary to support disciplinary findings is “some evidence.” See 16 Superintendent v. Hill, 472 U.S. 445, 457 (1985). Luna’s decision sufficiently explained 17 why he reached the conclusion he did and listed the evidence upon which he relied in 18 reaching it. Due process does not require more. See Culbert v. Young, 834 F.2d 624, 631 19 (7th Cir. 1987) (“With respect to each of the disciplinary reports, the question was whether 20 the plaintiff did or did not do the things recited in the conduct report. In each instance, the 21 only evidence contradicting the conduct report was plaintiff’s own statement in his defense 22 . . . . Because there is no mystery about [the decision-maker’s] reasoning process,” a brief 23 statement of reasons and supporting evidence was sufficient). 24 In his Objections, Plaintiff contends it is improper to rely on any documents attached 25 to the First Amended Complaint, including the RVR. (ECF No. 2.) Defendants argue in 26 their Reply that it is proper to consider that document because Plaintiff referred to it in the 27 SAC. (ECF No. 36 at 2.) The Court is permitted to consider documents incorporated by 28 reference in the SAC in deciding a motion to dismiss under Rule 12(b)(6). Tellabas, Inc. 1 v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (“[C]ourts must consider the 2 complaint in its entirely, as well as other sources courts ordinarily examine when ruling on 3 Rule 12(b)6) motions to dismiss, in particular, documents incorporated into the complaint 4 by reference, and matters of which a court may take judicial notice.”) Plaintiff incorporated 5 the RVR in the SAC by reference to it as if it were attached to the SAC, using the same 6 Exhibit designation, Exhibit H (see ECF No. 24 at 9-10), as he did when he attached it to 7 the First Amended Complaint (see ECF No. 17 at 67-85). 8 For these reasons, as well as Plaintiff’s failure to allege a protected liberty interest, 9 Defendants’ motion to dismiss Plaintiff’s due process claims against all Defendants is 10 GRANTED. Because Plaintiff has been informed of these defects of pleading and has 11 failed to correct them, these claims are dismissed without further leave to amend. 12 4. Eighth Amendment Claims 13 Finally, Defendants move to dismiss Plaintiff’s Eighth Amendment claim against 14 Defendant Vizcarra based on his actions on February 18, 2018, but do not move to dismiss 15 the Eighth Amendment claim against him based on the events of March 18, 2018. (ECF 16 No. 28 at 21-22.) 17 Plaintiff alleges in the SAC that when he took a break during a visit to urinate, 18 Defendant Vizcarra stopped him and ordered him to get completely naked, bend over, and 19 spread his buttocks. (ECF No. 24 at 3.) When Plaintiff said he just needed to use the toilet 20 and was not ending his visit, Defendant Vizcarra “suddenly became extremely aggressive 21 and yelled at plaintiff, ‘I said fucking strip out,’” and the other correctional officers in the 22 area surrounded him. (Id.) Defendant Vizcarra “stepped extremely close to plaintiff and 23 removed his baton and yelled angrily at plaintiff to ‘strip out’ as saliva flew out of his 24 mouth and landed on plaintiff’s face.” (Id.) When Plainitff asked why he needed to get 25 naked just to urinate, Defendant Vizcarra moved closer and, with their noses touching, 26 yelled “with extreme aggression” to strip out, sending more saliva into Plaintiff’s face, and 27 he backed away and complied. (Id. at 4.) 28 / / / 1 Defendant Vizcarra argues he did not use force against Plaintiff during the February 2 18, 2018 incident, and Plaintiff was not harmed or restrained in any way and was able to 3 back away and exit the area. (Id.) Defendant Vizcarra contends he is entitled to qualified 4 immunity because a reasonable officer in his position could not reasonably believe his 5 actions violated Plaintiff’s constitutional rights. (Id. at 23-24.) 6 Plaintiff contends in his Opposition that a malicious and sadistic use of force violates 7 the Eighth Amendment even if there are no injuries. (ECF No. 32 at 5.) He states that the 8 description of the events which he provided during his administrative appeal process, 9 which mirror the allegations in the SAC, was limited by the space on the CDCR 602 form, 10 which required him to “get to the point,” and he provides additional factual allegations in 11 his Opposition, including that Defendant Vizcarra grabbed Plaintiff and violently turned 12 him around, leaned against Plaintiff’s backside, and grabbed his right hand and twisted his 13 right wrist, which was in a brace, causing Plaintiff pain. (Id. at 7, 9.) Plaintiff contends 14 that in any case it was the spitting in his face which constituted the most egregious Eighth 15 Amendment violation because it was so humiliating. (Id. at 7.) He also argues that he only 16 needed to urinate, and Defendant Vizcarra, backed up by the five other correctional 17 officers, bullied him into a full strip search, and he was only free to leave after the search, 18 and if he is able to obtain the video of the incident it would show it in an egregious light. 19 (Id. at 8-9.) He argues qualified immunity is inappropriate because the unconstitutionality 20 of Defendant Vizcarra’s conduct is apparent. (Id. at 9-10.) 21 Prison officials violate the Eighth Amendment prohibition against cruel and unusual 22 punishment when they use force against an inmate, not “in a good faith effort to maintain 23 or restore discipline,” but “maliciously and sadistically for the very purpose of causing” 24 the unnecessary and wanton infliction of pain. Whitley v. Albers, 475 U.S. 312, 320-21 25 (1986). “The Eighth Amendment’s prohibition of ‘cruel and unusual’ punishments 26 necessarily excludes from constitutional recognition de minimis uses of physical force, 27 provided that the use of force is not of a sort ‘repugnant to the conscious of mankind.’” 28 Hudson v. McMillian, 503 U.S. 1, 9-10 (1992), quoting Whitley, 475 U.S. at 327. 1 The allegations in the SAC do not plausibly allege Defendant Vizcarra violated 2 Plaintiff’s Eighth Amendment rights during the February 18, 2018 incident. Plaintiff 3 alleges that although he wanted to urinate and return to the visiting area, Defendant 4 Vizcarra ordered him to submit to a full strip search, and when Plaintiff objected, 5 Defendant Vizcarra “suddenly became extremely aggressive and yelled at plaintiff, ‘I said 6 fucking strip out,’” and the other correctional officers in the area surrounded him. (ECF 7 No. 24 at 3.) Defendant Vizcarra “stepped extremely close to plaintiff and removed his 8 baton and yelled angrily at plaintiff to ‘strip out’ as saliva flew out of his mouth and landed 9 on plaintiff’s face.” (Id.) When Plaintiff asked why he needed to get completely naked 10 just to urinate, Defendant Vizcarra moved closer and, with their noses touching, yelled 11 “with extreme aggression” to strip out, sending more saliva into Plaintiff’s face. (Id. at 4.) 12 Plaintiff states that he then backed away and complied. (Id.) 13 “An inmate who complains of a ‘push or shove’ that causes no discernible injury 14 almost certainly fails to state a valid excessive force claim.” Wilkins, 559 U.S. at 38. There 15 are no allegations in the SAC that Defendant Vizcarra used any force against Plaintiff or 16 physically injured him in any manner, merely that Plaintiff felt humiliated by being yelled 17 at for refusing to submit to the type of full strip search apparently reserved for inmates after 18 a visit rather than using the bathroom during a visit. DeMallory v. Cullen, 855 F.2d 442, 19 444 (7th Cir. 1988) (holding that a correctional officer spitting on a prisoner does not 20 violate the Eighth Amendment); Zavala v. Barnik, 545 F. Supp. 1051, 1059 (C.D. Cal. Apr. 21 8, 2008) (“[A] one-time incident of spitting, while certainly deplorable, does not rise to the 22 level of a constitutional violation.”) Accordingly, the Court GRANTS Defendants’ motion 23 to dismiss Plaintiff’s Eighth Amendment claim against Defendant Vizcarra regarding the 24 February 18, 2018 incident. 25 With respect to the new allegations in Plaintiff’s Opposition alleging that Defendant 26 Vizcarra violently grabbed Plaintiff and twisted his braced wrist, the Court is unable to 27 consider them in opposition to the motion to dismiss. Schneider, 151 F.3d at 1197. 28 Furthermore, even were those allegations sufficient to state an Eighth Amendment claim, 1 || Plaintiff did not present them in his administrative proceedings (see ECF No. 17 at 14), 2 ||admits he did not do so (ECF No. 32 at 7), and has therefore failed to exhaust prison 3 ||administrative remedies. Exhaustion of prison administrative remedies is a pre-filing 4 || prerequisite for bringing an Eighth Amendment claim. Booth v. Churner, 532 U.S. 731, 5 (2001) (holding that pre-suit exhaustion is mandatory for all prison conditions claims, 6 including Eighth Amendment excessive force claims). Permitting Plaintiff leave to amend 7 ||the SAC to include these allegations would result in dismissal for failure to exhaust, and 8 |}amendment to augment the claim in this action would be futile. Plaintiff's Eighth 9 || Amendment claim against Defendant Vizcarra based on the events of February 18, 2018, 10 dismissed without leave to amend. 11 ||IV. CONCLUSION AND ORDER 12 Based on the foregoing, the Court GRANTS Defendants’ Motion to Dismiss 13 || pursuant to Fed. R. Civ. P. 12(b)(6) Plaintiffs First Amendment retaliation claims against 14 ||Defendant Alvarez and Luna, Plaintiff's Eighth Amendment claim against Defendant 15 || Vizcarra arising from the events of February 18, 2018, and Plaintiff’s Fourteenth 16 || Amendment Due Process claims against all Defendants. Because Plaintiff has been 17 ||informed of the defects of pleading with respect to these claims and has been given an 18 ||opportunity to amend to cure them but has failed to do so, or further amendment would be 19 || futile, the claims are DISMISSED without further leave to amend. 20 This action will proceed with the only remaining claims in the Second Amended 21 ||Complaint, Plaintiff's First and Eighth Amendment claims against Defendant Vizcarra 22 || arising from the events of March 18, 2018. 23 IT IS SO ORDERED. 24 ||Dated: June 22, 2020 25 Horf John A. Houston 6 Unfted States District Judge 27 28