# Anthony Moreno v. V. Hull

> District Court, C.D. California · March 12, 2020

URL: https://www.frixlaw.com/law-library/cases/10037306

## Case

- **Court:** District Court, C.D. California
- **Decided:** March 12, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10037306

## How later opinions describe it (automated extraction)

- finding routine unclothed searches of 15 inmates by officials of the opposite sex “cannot be called inhumane” and therefore 16 “do not rise to the level of an Eighth Amendment violation”
- holding the Eleventh Amendment bar “remains in 21 effect when State officials are sued for damages in their official capacity”
- finding Eighth 8 Amendment failure to protect claim requires “evidence that the supervisory 9 defendants were on notice that [a guard] presented a substantial risk to [plaintiff]”

## Opinion text

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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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10 ANTHONY MORENO, Case No. EDCV 20-272-CJC (KK)
11 Plaintiff,
12 v. ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND
13 V. HULL, ET AL.,

14 Defendant(s).

15
16
17 I.
18 INTRODUCTION
19 Plaintiff Anthony Moreno (“Moreno”), an inmate proceeding pro se and in
20 forma pauperis, filed a Complaint pursuant to 42 U.S.C. § 1983 (“Section 1983”)
21 alleging violations of his Eighth and Fourteenth Amendment rights as well as a state
22 law claim for intentional infliction of emotional distress. For the reasons discussed
23 below, the Court dismisses the Complaint with leave to amend.
24 ///
25 ///
26 ///
27 ///
1 II.
2 ALLEGATIONS IN THE COMPLAINT
3 On January 24, 2020, Moreno, who is currently detained at Valley State Prison,
4 constructively filed1 the Complaint against defendants V. Hull, A. DeLeon, R.
5 Rodriguez, J. Espinoza, and Hernandez (“Defendants”), correctional officers at
6 Ironwood State Prison employed by the California Department of Corrections and
7 Rehabilitation, in their individual and official capacities. ECF Docket No. (“Dkt.”) 1.
8 The Complaint arises out of various incidents that occurred while Moreno was an
9 inmate at Ironwood State Prison.
10 According to the Complaint, on May 31, 2018 at approximately 8:30 a.m.,
11 defendant Hull conducted a “random ‘clothed’ pat down body search” of Moreno.
12 Id. at 5. During the search, defendant Hull “turned to female correctional officer R.
13 Luna, directing her attention to a small tear located in [Moreno’s] ‘fly button crotch
14 area’ stating to her ‘This is where inmates hide bundles of drugs.’” Id. Defendant
15 Hull “spread open the ‘fly area’ of [Moreno’s] pants and boxers, then contacted
16 [Moreno’s] penis while committing the exposure where such exposure was done in a
17 manner where female officer Luna could view [Moreno’s] exposed penis.” Id.
18 Moreno questioned defendant Hull regarding his “harassment and unprofessional
19 conduct” and defendant Hull responded: “I’m gonna keep messing with you until I
20 catch you” and “me and you can get unprofessional whenever you want.” Id. at 6.
21 On June 1, 2018, Moreno submitted a Form 22 Inmate Request Form
22 regarding defendant Hull’s “sexual misconduct.” Id.
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1 Under the “mailbox rule,” when a pro se prisoner gives prison authorities a
pleading to mail to court, the court deems the pleading constructively “filed” on the
27
date it is signed. Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010); see
1 On June 4, 2018, defendant Hull questioned Moreno regarding the Form 22.
2 Id. When Moreno explained why he had filed the Form 22, defendant Hull said: “All
3 right then motherfucker, it’s on! I’m gonna get you now.” Id. at 7.
4 Later in the day on June 4, 2018, Moreno informed defendant Hernandez he
5 wanted to make a Prison Rape Elimination Act (“PREA”) call regarding defendant
6 Hull’s conduct. Id. at 7-8. Defendant Hernandez instructed Moreno to “go to his cell
7 until she notified the sergeant of Moreno’s intentions.” Id. at 8. Later that same day,
8 defendant Sergeant DeLeon came to Moreno’s housing unit in connection with
9 Moreno’s request to make a PREA call. Id. Moreno told defendant DeLeon about
10 the May 31, 2018 incident as well as two prior incidents with defendant Hull on
11 February 12, 2018 and May 16, 2018. Id. at 8-10. Defendant DeLeon told Moreno:
12 “If you go through with this then you are going to regret it. You are going to sit in
13 the hole (administrative segregation) for six months pending an investigation, and
14 that’s not worth it because your claims do not merit a PREA call. Think this through
15 very carefully.” Id. at 10. Defendant DeLeon told Moreno he would stop defendant
16 Hull’s harassment and he would have defendant Hernandez would respond to a Form
17 22 regarding her reason for denying the PREA call. Id. at 10-11.
18 On June 11, 2018, Moreno submitted a Form 22 requesting documentation
19 regarding the February 12, 2018 incident. Id. at 11-12. Later that day, defendant
20 DeLeon confronted Moreno and said: “I already told you Moreno, if you keep
21 pressing this issue I’m gonna put you in the hole . . . and that’s after I take you over to
22 medical, put you in a paper jumpsuit for 24 hours, and perform a rape kit on you.”
23 Id. at 12.
24 On June 20, 2018, Moreno was interviewed by a lieutenant regarding defendant
25 Hull’s conduct. Id. at 13. The lieutenant ordered Moreno be placed in administrative
26 segregation. Id. Later that evening, Moreno was taken to the Triage Treatment
27 Center where a nurse and then a male doctor conducted a PREA “Screening
1 Evaluation.” Id. at 13-14. Moreno was then placed in administrative segregation. Id.
2 at 14.
3 On June 28, 2018, Moreno was released from administrative segregation to A-
4 Facility, rather than B-Facility where he had been housed previously. Id. at 14-15.
5 On July 17, 2018, while Moreno was walking on the exercise yard, defendants
6 Hull and DeLeon were standing in front of the A-Facility Program Office and
7 defendant Hull saw Moreno and informed another correctional officer: “There’s the
8 bitch who tried to PREA me.” Id. at 15.
9 On July 18, 2018, Moreno submitted a Form 22 to defendant Rodriguez
10 regarding the incident on July 17, 2018. Id. at 16.
11 On July 21, 2018, defendant Rodriguez told Moreno: “Hey Moreno, I didn’t
12 know that you and Sergeant DeLeon have problems. Don’t be having me sign 22
13 Forms against other officers ‘cause we don’t play that crying shit over here.” Id.
14 Later that day, defendants Rodriguez and Espinosa conducted a cell search of
15 Moreno’s cell. Id. at 16-17. Afterward, while Moreno was cleaning up his cell, he
16 noticed two sheets of paper that did not belong to him titled “Hurt Feelings Report”
17 and “Telling Form.” Id. at 17, Ex. M.
18 On July 24, 2018, Moreno attempted to call the Coachella Valley Sexual Assault
19 Hotline number, but when he had trouble completing the call, he informed defendant
20 Rodriguez of the problem. Id. at 17. Defendant Rodriguez responded: “We’ll put in
21 a work order.” Id. On July 26, 2018, Moreno was informed the hotline number was
22 “inoperable.” Id. at 18.
23 On August 6, 2018, Moreno filed a “Staff Misconduct/Harassment” complaint
24 against defendants Rodriguez and Espinosa. Id. at 18-19.
25 On August 13, 2018, Moreno filed a request for his medical records pertaining
26 to the PREA medical evaluation on June 20-21, 2018. Id. at 19.
27 Moreno alleges based on these facts, “the criminal negligence and deliberate
1 collusion, based on the original actions of Defendant Hull were ‘intertwined’ by all
2 five Defendants and became the proximate cause(s) of the Civil Rights violations
3 complained of, verified by these same Defendants’ action and non-actions, as well as
4 their disclosure and non-disclosure.” Id. at 20-21.
5 Moreno seeks compensatory and punitive damages. Id. at 22. Moreno
6 specifically notes his claims for monetary relief have been exhausted. Id.
7 III.
8 STANDARD OF REVIEW
9 Where a plaintiff is incarcerated and/or proceeding in forma pauperis, a court
10 must screen the complaint under 28 U.S.C. §§ 1915 and 1915A and is required to
11 dismiss the case at any time if it concludes the action is frivolous or malicious, fails to
12 state a claim on which relief may be granted, or seeks monetary relief against a
13 defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A; see
14 Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998).
15 Under Federal Rule of Civil Procedure 8 (“Rule 8”), a complaint must contain a
16 “short and plain statement of the claim showing that the pleader is entitled to relief.”
17 Fed. R. Civ. P. 8(a)(2). In determining whether a complaint fails to state a claim for
18 screening purposes, a court applies the same pleading standard as it would when
19 evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See
20 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012).
21 A complaint may be dismissed for failure to state a claim “where there is no
22 cognizable legal theory or an absence of sufficient facts alleged to support a
23 cognizable legal theory.” Zamani v. Carnes, 491 F.3d 990, 996 (9th Cir. 2007). In
24 considering whether a complaint states a claim, a court must accept as true all of the
25 material factual allegations in it. Hamilton v. Brown, 630 F.3d 889, 892-93 (9th Cir.
26 2011). However, the court need not accept as true “allegations that are merely
27 conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re
1 need not include detailed factual allegations, it “must contain sufficient factual matter,
2 accepted as true, to state a claim to relief that is plausible on its face.” Cook v.
3 Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662,
4 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)). A claim is facially plausible when it
5 “allows the court to draw the reasonable inference that the defendant is liable for the
6 misconduct alleged.” Id. The complaint “must contain sufficient allegations of
7 underlying facts to give fair notice and to enable the opposing party to defend itself
8 effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
9 “A document filed pro se is ‘to be liberally construed,’ and a ‘pro se complaint,
10 however inartfully pleaded, must be held to less stringent standards than formal
11 pleadings drafted by lawyers.’” Woods v. Carey, 525 F.3d 886, 889-90 (9th Cir. 2008).
12 However, liberal construction should only be afforded to “a plaintiff’s factual
13 allegations,” Neitzke v. Williams, 490 U.S. 319, 330 n.9, 109 S. Ct. 1827, 104 L. Ed. 2d
14 339 (1989), and a court need not accept as true “unreasonable inferences or assume
15 the truth of legal conclusions cast in the form of factual allegations,” Ileto v. Glock
16 Inc., 349 F.3d 1191, 1200 (9th Cir. 2003).
17 If a court finds the complaint should be dismissed for failure to state a claim,
18 the court has discretion to dismiss with or without leave to amend. Lopez v. Smith,
19 203 F.3d 1122, 1126-30 (9th Cir. 2000). Leave to amend should be granted if it
20 appears possible the defects in the complaint could be corrected, especially if the
21 plaintiff is pro se. Id. at 1130-31; see also Cato v. United States, 70 F.3d 1103, 1106
22 (9th Cir. 1995). However, if, after careful consideration, it is clear a complaint cannot
23 be cured by amendment, the court may dismiss without leave to amend. Cato, 70
24 F.3d at 1107-11; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009).
25 ///
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1 IV.
2 DISCUSSION
3 A. THE ELEVENTH AMENDMENT BARS MORENO’S CLAIMS
4 AGAINST DEFENDANTS IN THEIR OFFICIAL CAPACITY
5 1. Applicable Law
6 “The Eleventh Amendment prohibits federal courts from hearing suits brought
7 against an unconsenting state.” Brooks v. Sulphur Springs Valley Elec. Co-op., 951
8 F.2d 1050, 1053 (9th Cir. 1991) (citing Pennhurst State School & Hosp. v. Halderman,
9 465 U.S. 89, 100, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984)). As to state officials sued in
10 their official capacity, the Eleventh Amendment immunizes state officials sued in their
11 official capacity from claims for retrospective relief (including monetary damage
12 claims) but does not immunize them from claims for prospective relief (such as
13 forward-looking injunctive relief). Kentucky v. Graham, 473 U.S. 159, 169-70, 105 S.
14 Ct. 3099, 87 L. Ed. 2d 114 (1985); Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39
15 L. Ed. 2d 662 (1974); Ex Parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 2d 714
16 (1908).
17 2. Analysis
18 Here, the Eleventh Amendment bars Moreno from pursuing claims that seek
19 monetary relief against Defendants, who are state employees, in their official capacity.
20 See Graham, 473 U.S. at 169-70 (holding the Eleventh Amendment bar “remains in
21 effect when State officials are sued for damages in their official capacity”). Moreno’s
22 claims against Defendants in their official capacity are, therefore, subject to dismissal.
23 B. THE COMPLAINT FAILS TO STATE AN EIGHTH AMENDMENT
24 CLAIM AGAINST DEFENDANTS IN THEIR INDIVIDUAL
25 CAPACITY
26 1. Applicable Law
27 Prison officials violate the Eighth Amendment’s prohibition against cruel and
1 deliberate indifference. Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 128 L.
2 Ed. 2d 811 (1994). “[A] prison official cannot be found liable under the Eighth
3 Amendment for denying an inmate humane conditions of confinement unless the
4 official knows of and disregards an excessive risk to inmate health or safety; the
5 official must both be aware of facts from which the inference could be drawn that a
6 substantial risk of serious harm exists, and he must also draw the inference.” Id. at
7 837; see also Wood v. Beauclair, 692 F.3d 1041, 1051 (9th Cir. 2012) (finding Eighth
8 Amendment failure to protect claim requires “evidence that the supervisory
9 defendants were on notice that [a guard] presented a substantial risk to [plaintiff]”).
10 “Sexual harassment or abuse of an inmate by a corrections officer is a violation
11 of the Eighth Amendment.” Wood, 692 F.3d at 1046 (citations omitted). “[A]
12 prisoner presents a viable Eighth Amendment claim where he or she proves that a
13 prison staff member, acting under color of law and without legitimate penological
14 justification, touched the prisoner in a sexual manner or otherwise engaged in sexual
15 conduct for the staff member’s own sexual gratification, or for the purpose of
16 humiliating, degrading, or demeaning the prisoner.” Bearchild v. Cobban, 947 F.3d
17 1130, 1144 (9th Cir. 2020).
18 In addition, prison officials also have a duty to take reasonable steps to protect
19 inmates from physical harm. See Farmer, 511 U.S. at 832. To state a claim for an
20 Eighth Amendment violation based on failure to protect from harm, an inmate must
21 show both objective and subjective components. Id. at 834. The objective
22 component requires an “objectively insufficiently humane condition violative of the
23 Eighth Amendment” which poses a substantial risk of serious harm. Osolinski v.
24 Kane, 92 F.3d 934, 938 (9th Cir. 1996). The subjective component requires prison
25 officials acted with the culpable mental state, which is “deliberate indifference” to the
26 substantial risk of serious harm. Farmer, 511 U.S. at 837-38; Estelle v. Gamble, 429
27 U.S. 97, 104-06, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976).
1 Finally, vicarious liability does not apply to Section 1983 actions; rather, “a
2 plaintiff must plead that each Government-official defendant, through the official’s
3 own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. Hence,
4 a defendant may be held liable as a supervisor only “if there exists either (1) his or her
5 personal involvement in the constitutional deprivation, or (2) a sufficient causal
6 connection between the supervisor’s wrongful conduct and the constitutional
7 violation.” Starr, 652 F.3d at 1207 (internal quotation marks and citations omitted).
8 2. Analysis
9 Here, Moreno alleges defendant Hull “contacted” and exposed Moreno’s penis
10 during a clothed body search “in a manner where female officer Luna could view
11 [Moreno’s] exposed penis.” Dkt. 1 at 5. While it is not clear whether officer Luna
12 observed Moreno’s exposed penis, the mere fact of the exposure to a female guard
13 does not rise to the level of an Eighth Amendment violation. See Somers v.
14 Thurman, 109 F.3d 614, 623 (9th Cir. 1997) (finding routine unclothed searches of
15 inmates by officials of the opposite sex “cannot be called inhumane” and therefore
16 “do not rise to the level of an Eighth Amendment violation”). In addition, Moreno
17 fails to allege defendant Hull’s contact with Moreno’s penis during a “random
18 ‘clothed’ pat down body search” (a) lacked a legitimate penological justification, and
19 (b) was in a sexual manner. Bearchild, 947 F.3d at 1144.
20 Moreno alleges defendant DeLeon advised Moreno on two occasions that if
21 Moreno went through with his complaints against defendant Hull, Moreno would be
22 sent to administrative segregation.2 Dkt. 1 at 8-13. Defendant DeLeon cannot be
23
2 To the extent Moreno seeks to raise a retaliation claim against defendant
24 DeLeon, he has failed to allege (a) there would be no legitimate penological interest in
putting him in administrative segregation during the investigation of his complaint
25 against defendant Hull, or (b) the threat of administrative segregation chilled
Moreno’s exercise of his First Amendment rights. Rhodes v. Robinson, 408 F.3d 559,
26 567-68 (9th Cir. 2005) (To state a viable First Amendment retaliation claim, a prisoner
must allege five elements: “(1) [a]n assertion that [a prison official] took some adverse
27 action against an inmate (2) because of (3) that prisoner’s protected conduct, and that
such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the
1 held liable pursuant to Section 1983 for defendant Hull’s conduct on the basis of his
2 supervisory role of sergeant. Iqbal, 556 U.S. at 676. As discussed, Moreno fails to
3 allege facts demonstrating defendant Hull violated his Eighth Amendment rights,
4 hence, Moreno cannot allege defendant DeLeon’s personal involvement in a
5 constitutional deprivation. Starr, 652 F.3d at 1207. In addition, defendant DeLeon
6 could not have known of or disregarded an excessive risk to Moreno’s health or
7 safety, because Moreno did not tell defendant DeLeon about defendant Hull’s
8 conduct until June 4, 2018, which was after the May 31, 2018 incident. See Farmer,
9 511 U.S. at 837; Wood, 692 F.3d at 1051.
10 Moreno alleges defendants Rodriguez and Espinosa left harassing papers in
11 Moreno’s cell after a cell search, dkt. 1 at 16-17, Ex. M, and defendant Hernandez
12 refused to allow Moreno to make a PREA call regarding defendant Hull’s conduct
13 until after she advised her supervisor of Moreno’s intentions, id. at 7-8. It is unclear
14 from the Complaint, and the Court is unable to discern or speculate, on what basis
15 Moreno believes defendants Rodriguez, Espinosa, or Hernandez violated Moreno’s
16 Eighth Amendment rights when defendants Rodriguez and Espinosa searched his cell
17 or defendant Hernandez refused to allow Moreno to immediately make a PREA call.
18 See Little v. Baca, No. CV 13-0373-PA (RZ), 2013 WL 436018, at *3 (C.D. Cal. Feb.
19 1, 2013) (finding unclear pleadings violate Rule 8 by “leaving it to the Court to figure
20 out what the full array of [a plaintiff’s] claims is and upon what federal law, and upon
21 what facts, each claim is based,” and are subject to dismissal). Moreno, thus, fails to
22 allege defendants Rodriguez, Espinosa, or Hernandez knew of and disregarded an
23 excessive risk to Moreno’s health or safety. See Farmer, 511 U.S. at 837; Wood, 692
24 F.3d at 1051.
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were no legitimate correctional purposes motivating the actions he complained of”);
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Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (finding though an adverse
1 Accordingly, Moreno’s Eighth Amendment claims against Defendants in their
2 individual capacity are subject to dismissal.
3 C. THE COMPLAINT FAILS TO STATE A FOURTEENTH
4 AMENDMENT CLAIM AGAINST DEFENDANTS IN THEIR
5 INDIVIDUAL CAPACITY
6 1. Applicable Law
7 The Due Process Clause of the Fourteenth Amendment protects individuals
8 against deprivations of “life, liberty, or property.” U.S. Const. amend. XIV, § 1. “A
9 liberty interest may arise from the Constitution itself, by reason of guarantees implicit
10 in the word ‘liberty,’ or it may arise from an expectation or interest created by state
11 laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221, 125 S. Ct. 2384, 162 L. Ed.
12 2d 174 (2005) (citations omitted). Due process analysis “proceeds in two steps: We
13 first ask whether there exists a liberty or property interest of which a person has been
14 deprived, and if so we ask whether the procedures followed by the State were
15 constitutionally sufficient.” Swarthout v. Cooke, 562 U.S. 216, 219, 131 S. Ct. 859,
16 178 L. Ed. 2d 732 (2011).
17 In order to establish the deprivation of a protected liberty interest, a prisoner
18 must allege an “atypical, significant deprivation in which a State might conceivably
19 create a liberty interest.” Sandin v. Conner, 515 U.S. 472, 486, 115 S. Ct. 2293, 132 L.
20 Ed. 2d 418 (1995). In order to establish the denial of procedural protections afforded
21 by due process, a prisoner must allege denial of the requirements set forth in Wolff v.
22 McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974), which include
23 written notice, the right to call witnesses, the right to present documentary evidence,
24 and the right to have a written statement by the factfinder as to the evidence relied
25 upon and the reasons for the disciplinary action taken. See Serrano v. Francis, 345
26 F.3d 1071, 1077-78 (9th Cir. 2003). However, a prisoner has no constitutional
27 entitlement to have his prison grievances or appeals handled or decided in a particular
1 manner. Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); Ramirez v. Galaza, 334
2 F.3d 850, 860 (9th Cir. 2003).
3 “The Equal Protection Clause of the Fourteenth Amendment commands that
4 no State shall ‘deny to any person within its jurisdiction the equal protection of the
5 laws,’ which is essentially a direction that all persons similarly situated should be
6 treated alike.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439, 105
7 S. Ct. 3249, 87 L. Ed. 2d 313 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216, 102 S.
8 Ct. 2382, 72 L. Ed. 2d 786 (1982)). In order to state a Section 1983 equal protection
9 claim, a plaintiff must allege he was treated differently from others who were similarly
10 situated without a rational basis or discriminated against based on his membership in a
11 protected class. See Serrano, 345 F.3d at 1082 (requirements for Section 1983 equal
12 protection claim based on membership in protected class); Gallo v. Burson, 568 F.
13 App’x 516, 517 (9th Cir. 2014) (affirming district court dismissal of inmate’s equal
14 protection claim).3
15 2. Analysis
16 As an initial matter, it is unclear from the Complaint on what basis Moreno
17 alleges Defendants violated his Fourteenth Amendment rights. See Little, 2013 WL
18 436018, at *3.
19 To the extent Moreno’s Fourteenth Amendment claims arise out of the
20 handling of his various grievances and Form 22’s, Moreno is not entitled to have his
21 prison grievances or appeals handled or decided in a particular manner. Ramirez, 334
22 F.3d at 860. Additionally, while Moreno appears to allege violations of various CDCR
23 regulations, “the failure to comply with a prison policy, without more, is not sufficient
24 to state a constitutional violation claim.” Hammler v. Alvarez, No. 18-CV-326-AJB
25 (WVG), 2019 WL 422575, at *7 (S.D. Cal. Feb. 4, 2019), report and recommendation
26 adopted, No. 3:18-CV-0326-AJB-WVG, 2019 WL 3315567 (S.D. Cal. July 24, 2019)
27
1 (citing Barry v. Fowler, 902 F.2d 770, 772 (9th Cir. 1990) (violation of state law does
2 not give rise to a constitutional violation)).
3 To the extent Moreno’s reference to the Fourteenth Amendment is an attempt
4 to invoke the Equal Protection Clause, Moreno fails to allege “he was treated
5 differently from others who were similarly situated without a rational basis or
6 discriminated against based on his membership in a protected class.” See Serrano,
7 345 F.3d at 1082.
8 Accordingly, Moreno’s Fourteenth Amendment due process claims against
9 Defendants in their individual capacity are subject to dismissal.
10 V.
11 LEAVE TO FILE A FIRST AMENDED COMPLAINT
12 For the foregoing reasons, the Complaint is subject to dismissal. As the Court
13 is unable to determine whether amendment would be futile, leave to amend is granted.
14 See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam). Plaintiff is
15 advised that the Court’s determination herein that the allegations in the Complaint are
16 insufficient to state a particular claim should not be seen as dispositive of that claim.
17 Accordingly, while the Court believes Plaintiff has failed to plead sufficient factual
18 matter in his pleading, accepted as true, to state a claim to relief that is viable on its
19 face, Plaintiff is not required to omit any claim in order to pursue this action.
20 However, if Plaintiff asserts a claim in his First Amended Complaint that has been
21 found to be deficient without addressing the claim’s deficiencies, then the Court,
22 pursuant to the provisions of 28 U.S.C. § 636, ultimately will submit to the assigned
23 district judge a recommendation that such claim be dismissed with prejudice for
24 failure to state a claim, subject to Plaintiff’s right at that time to file Objections with
25 the district judge as provided in the Local Rules Governing Duties of Magistrate
26 Judges.
27 Accordingly, IT IS ORDERED THAT within twenty-one (21) days of the
1 1. Plaintiff may file a First Amended Complaint to attempt to cure the
2 deficiencies discussed above. The Clerk of Court is directed to mail Plaintiff a blank
3 Central District civil rights complaint form to use for filing the First Amended
4 Complaint, which the Court encourages Plaintiff to use.
5 If Plaintiff chooses to file a First Amended Complaint, he must clearly
6 designate on the face of the document that it is the “First Amended Complaint,” it
7 must bear the docket number assigned to this case, and it must be retyped or
8 rewritten in its entirety, preferably on the court-approved form. Plaintiff shall not
9 include new defendants or allegations that are not reasonably related to the claims
10 asserted in the Complaint. In addition, the First Amended Complaint must be
11 complete without reference to the Complaint, or any other pleading, attachment, or
12 document.
13 An amended complaint supersedes the preceding complaint. Ferdik v.
14 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). After amendment, the Court will treat
15 all preceding complaints as nonexistent. Id. Because the Court grants Plaintiff
16 leave to amend as to all his claims raised here, any claim raised in a preceding
17 complaint is waived if it is not raised again in the First Amended Complaint.
18 Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012).
19 The Court advises Plaintiff that it generally will not be well-disposed toward
20 another dismissal with leave to amend if Plaintiff files a First Amended Complaint
21 that continues to include claims on which relief cannot be granted. “[A] district
22 court’s discretion over amendments is especially broad ‘where the court has already
23 given a plaintiff one or more opportunities to amend his complaint.’” Ismail v. Cty.
24 of Orange, 917 F. Supp. 2d 1060, 1066 (C.D. Cal. 2012); see also Ferdik, 963 F.2d at
25 1261. Thus, if Plaintiff files a First Amended Complaint with claims on which
26 relief cannot be granted, the First Amended Complaint will be dismissed
27 without leave to amend and with prejudice.
1 2. Alternatively, Plaintiff may file a notice with the Court that he intends to
2 stand on the allegations in his Complaint. If Plaintiff chooses to stand on the
3 Complaint despite the deficiencies in all of Plaintiff’s claims identified above, then the
4 Court will submit a recommendation to the assigned district judge that the entire
5 action be dismissed with prejudice for failure to state a claim, subject to
6 Plaintiff’s right at that time to file Objections with the district judge as provided in the
7 Local Rules Governing Duties of Magistrate Judges.
8 3. Finally, Plaintiff may voluntarily dismiss the action without prejudice,
9 pursuant to Federal Rule of Civil Procedure 41(a). The Clerk of Court is directed to
10 mail Plaintiff a blank Notice of Dismissal Form, which the Court encourages Plaintiff
11 to use if he chooses to voluntarily dismiss the action.
12 Plaintiff is explicitly cautioned that failure to timely respond to this
13 Order will result in this action being dismissed without prejudice for failure to
14 prosecute and/or obey Court orders pursuant to Federal Rule of Civil
15 Procedure 41(b).
16
17 Dated: March 12, 2020

18 HONORABLE KENLY KIYA KATO
United States Magistrate Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10037306. Public record. Not legal advice.