# Juan Molina v. Ralph Diaz

> District Court, C.D. California · December 28, 2021

URL: https://www.frixlaw.com/law-library/cases/10042627

## Case

- **Court:** District Court, C.D. California
- **Decided:** December 28, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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7 UNITED STATES DISTRICT COURT
8 CENTRAL DISTRICT OF CALIFORNIA – EASTERN DIVISION
9
10 JUAN MOLINA, Case No. EDCV 20-00518-SVW (AS)
11 Plaintiff,
ORDER DISMISSING THIRD AMENDED
12 v.
COMPLAINT WITH LEAVE TO AMEND
13 RALPH DIAZ, et al.,

14 Defendants.
15
16 INTRODUCTION
17
18 On December 20, 2019, Juan Molina (“Plaintiff”), an inmate
19 formerly housed at Ironwood State Prison (“Ironwood”) in Blythe,
20 California,1 proceeding pro se, filed a Civil Rights Complaint
21 (“Complaint”) pursuant to 42 U.S.C. § 1983.2 (Dkt. Nos. 1, 1-1,
22
1 Plaintiff was recently transferred to Centinela State Prison
23 in Imperial, California. (See Dkt. No. 34).
24 2 Plaintiff filed the Complaint in the United States District
Court for the Northern District of California, which transferred
25 the action to this Court on March 11, 2020, because it concerns
alleged incidents at Ironwood, which is located in this District.
26
(Dkt. No. 9). On April 20, 2020, Plaintiff filed an “Objection to
27 Venue,” seeking to transfer this action back to the Northern
District of California. (Dkt. No. 15). The Court construed this
28 as a motion for transfer of venue pursuant to 28 U.S.C. § 1404(a),
1 1-2). On April 17, 2020, the Court dismissed the Complaint, with
2 leave to amend, because it failed to state a claim for relief.
3 (Dkt. No. 14). Plaintiff subsequently filed a First Amended
4 Complaint (Dkt. No. 30)3 and a Second Amended Complaint (Dkt. No.
5 36), which were each dismissed, in turn, with leave to amend (Dkt.
6 Nos. 32, 37).
7
8 On November 18, 2021, Plaintiff filed a Third Amended
9 Complaint pursuant to 42 U.S.C. §§ 1983 and 1985 (“Third Amended
10 Complaint” or “TAC”). The Court has screened the Third Amended
11 Complaint as prescribed by 28 U.S.C. § 1915A and 42 U.S.C. § 1997e.
12 For the reasons discussed below, the Court DISMISSES Plaintiff’s
13 Third Amended Complaint WITH LEAVE TO AMEND.4
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and denied the motion on April 21, 2020. (Dkt. No. 16). On May
18 19, 2020, Plaintiff filed a Notice of Appeal regarding the Court’s
Order denying the Motion to Transfer (Dkt. No. 17), which the Ninth
19 Circuit subsequently dismissed for lack of jurisdiction (Dkt. No.
21).
20
3 Initially, Plaintiff failed to timely file a First Amended
21
Complaint, which prompted the Court to issue an Order to Show Cause
on June 2, 2020 (Dkt. No. 20), followed by a Report and
22
Recommendation on August 11, 2020, recommending that the case be
23 dismissed pursuant to Rule 41(b) of the Federal Rules of Civil
Procedure for failure to prosecute and obey court orders (Dkt. No.
24 23). Finally, after multiple extensions of time, Plaintiff filed
a First Amended Complaint on December 30, 2020. The Court thus
25 vacated the Report and Recommendation on February 24, 2021. (Dkt.
No. 31).
26
27 4 Magistrate judges may dismiss a complaint with leave to
amend without approval from the district judge. McKeever v. Block,
28 932 F.2d 795, 798 (9th Cir. 1991).
1 THIRD AMENDED COMPLAINT
2
3 The Third Amended Complaint names a total of nineteen
4 defendants. (TAC at 4-12). Eleven of these are named solely in
5 their official capacity: (1) Ralph Diaz, Secretary of the CDCR;5
6 (2) Jeffrey Macomber, CDCR Undersecretary of Operations; (3) Connie
7 Gipson, CDCR Director of the Division of Adult Institutions; (4)
8 Howard Moseley, CDCR Director of the Office of Appeals; (5) Jared
9 Lozano, CDCR Assistant Director of High Security, Males, in the
10 Division of Adult Institutions; (6) Kirk Stinson, CDCR Chief of
11 Internal Affairs (Field Operations), Division of Correctional
12 Policy Research and Internal Oversight; (7) Neil McDowell, Warden,
13 Ironwood; (8) R.W. Smith, Chief Deputy Warden, Ironwood; (9) S.
14 Moore, Associate Warden, Ironwood; (10) J. Martin, Correctional
15 Dog Handler, Ironwood; (11) M. Cota, Correctional Staff Service
16 Analyst, Ironwood. (TAC at 4-7, 11-12). The remaining eight
17 defendants are named solely in their individual capacities: (1) H.
18 Liu, Correctional Captain, Ironwood; (2) J. Frias, Correctional
19 Lieutenant, Ironwood; (3) G. Gasgonia, Correctional Lieutenant,
20 Ironwood; (4) J. Zermeno, Correctional Sergeant, Ironwood; (5) S.
21
5 On October 1, 2020, Kathleen Allison was appointed as the
22
Secretary of the CDCR, replacing Ralph Diaz in that role, as
23 Plaintiff acknowledges. (TAC at 17 n.4); see Cal. Dep’t Corr. &
Rehab., “Kathleen Allison, CDCR Secretary,” available at
24 https://www.cdcr.ca.gov/about-cdcr/secretary/ (last visited Dec.
14, 2021). Allison should therefore be substituted for Diaz as
25 the proper defendant for claims against the CDCR Secretary in her
official capacity. See Fed. R. Civ. P. 25(d) (“An action does not
26
abate when a public officer who is a party in an official capacity
27 dies, resigns, or otherwise ceases to hold office while the action
is pending. The officer’s successor is automatically substituted
28 as a party.”).
1 Striplin, Correctional Investigative Services Unit (“ISU”)
2 Officer, Ironwood; (6) E. Nunez, Correctional ISU Officer,
3 Ironwood; (7) B. Wilson, Correctional Officer, Ironwood; (8)
4 Montgomery, Correctional Officer, Ironwood. (TAC at 8-12).
5
6 Plaintiff alleges that he was a participant in a prisoner
7 hunger strike several years ago at Pelican Bay State Prison in Del
8 Norte County, California (“Pelican Bay”), where he was formerly
9 housed. (TAC at 15). The hunger strike, which had been
10 orchestrated by members of four major California prison gangs,
11 precipitated a prisoner class action suit in the United States
12 District Court for the Northern District of California, against
13 the CDCR and various state officials, regarding the use of
14 indeterminate solitary confinement in California prisons and the
15 use of confidential information in disciplinary hearings at Pelican
16 Bay, among other issues. (See TAC at 15-16); see also Ashker v.
17 Newsom, N.D. Cal. Case No. 09-CV-05796-CW (RMI).6 The case

18
6 In that case, the court recently granted a one-year extension
19 of the settlement agreement to July 15, 2020, because the
plaintiffs had demonstrated, among other things, “due process
20 violations arising out of Defendants’ failure to provide class
members with adequate notice of the charges and evidence against
21 them and by failing to disclose non-sensitive information or
evidence that class members could have used to mount a defense at
22
their disciplinary hearings.” Ashker, 2021 WL 5316414, at *17
(N.D. Cal. Apr. 9, 2021), modified, 2021 WL 5339614 (N.D. Cal. May
23
13, 2021). The court found that “[t]he inaccurate or incomplete
24 disclosures that Defendants provided to class members deprived
class members of the ability to challenge or otherwise raise
25 questions as to the reliability of confidential information that
could have been or was used against them during their disciplinary
26 hearings.” Id. However, on July 12, 2021, the magistrate judge
in the case recommended denying a further extension of the
27
agreement because, among other things, the plaintiffs failed to
28 sufficiently demonstrate ongoing and systemic due process
1 culminated in a settlement in 2015.7 (See TAC at 16); Ashker, 2021
2 WL 5316414, at *3 (N.D. Cal. Apr. 9, 2021) (describing settlement).
3
4 Plaintiff alleges that since that settlement, CDCR officials
5 have viewed the Ashker “hunger strikers” as a threat and have been
6 cracking down on them through a discriminatory “underground policy”
7 of using fabricated evidence against them as grounds to remove them
8 from the general population. (TAC at 13, 17-18). Plaintiff claims
9 that he has been a target of this policy since his transfer to
10 Ironwood. (See TAC at 18-28).
11
12 According to Plaintiff, Defendant Nunez, an Ironwood
13 correctional officer, prepared a “falsified” confidential
14 memorandum on September 10, 2018, in which a “paid informant”
15 alleged that Plaintiff was part of a conspiracy to introduce
16 unauthorized controlled substances and cell phones through a
17 “compromised” staff member. (TAC at 18). Nunez allegedly placed
18 this false memorandum in Plaintiff’s central file, but Plaintiff
19 was not served with notice of it, as required by CDCR regulations,
20 and he was given no “opportunity to contest, challenge or refute”
21

violations with respect to CDCR’s supposed fabrication and
22
allegedly inadequate disclosure of confidential information or
23 CDCR’s supposed failure to ensure that the confidential information
it uses is reliable. Ashker, 2021 WL 4310607, at *3 (N.D. Cal.
24 July 12, 2021). As of this date, that issue remains pending before
the district judge in the case.
25
7 The plaintiff class for the due process claims in Ashker
26
consisted of all inmates who were “assigned to an intermediate term
27 at the Pelican Bay SHU on the basis of gang validation, under the
policies and procedures in place as of September 10, 2012.” Ashker,
28 2019 WL 330461, at *1.
1 it. (TAC at 18). Plaintiff alleges that similar confidential
2 memoranda were later prepared by Defendant Sgt. Zermeno on December
3 3, 2018, and by Nunez on January 4 and 18, 2019, which were also
4 placed in Plaintiff’s file without notice. (TAC at 18-19).
5
6 On January 22, 2019, Defendant Nunez, along with Defendants
7 Martin and Striplin, conducted a search of the Facility D
8 vocational welding classroom and purportedly found drugs and cell
9 phones hidden behind the exhaust ventilation unit in the wall.
10 (See TAC at 19-20; TAC Exhs. D-E). A Rules Violation Report (“RVR”)
11 was subsequently issued based on this search, falsely charging
12 Plaintiff with conspiracy to distribute controlled substances (RVR
13 Log No. 6824745, or “2019 RVR”). (See TAC at 19-21). Plaintiff
14 was placed in administrative segregation (“Ad Seg”). (TAC at 20).
15 On April 25, 2019, Nunez prepared a supplement to the 2019 RVR
16 which falsely described the search and investigation, stating among
17 other things that “reliable, confidential sources provided
18 intelligence regarding the introduction of narcotics and contraband
19 cellphones by [Plaintiff] and [another inmate, Lopez].” (TAC at
20 19-20; Exh. E). Plaintiff alleges “upon information and belief”
21 that Nunez’s “paid informant” had tried to convince Lopez to join
22 a contraband-smuggling conspiracy and had told Lopez there was a
23 “compromised” staff member willing to help. (TAC at 20 n.6).
24 Plaintiff asserts that he never spoke with any informant or staff
25 member about a smuggling operation. (TAC at 20 n.6). Plaintiff
26 thus notes that the confidential memoranda used against him
27 “contain no specific date, time, place, conversation, where
28 [Plaintiff] met with the confidential paid informant; no place
1 where he met with the compromised staff; no description of how he
2 collected or received this drug money, the proceeds from this
3 illegal enterprise, or any other nexus between Plaintiff [] and
4 this alleged conspiracy.”8 (TAC at 20 n.6).
5
6 At Plaintiff’s disciplinary hearing on May 12, 2019, Defendant
7 Lt. Gasgonia, the presiding officer, relied on the confidential
8 memoranda to find Plaintiff guilty of conspiracy to distribute
9

10 8 Nunez’s “Confidential Information Disclosure Form” states
the following about the confidential information used against
11
Plaintiff in the proceedings:
12
On 1/22/2019 confidential sources identified you inmate
13 Juan MOLINA, CDCR #K30854 collaborated with Inmate Luis
LOPEZ, CDCR #V23120 responsible for the Distribution of
14 a Controlled Substance(s) at Ironwood State Prison
(ISP). Specifically, these sources provided reliable
15 information which [led] investigators to a location and
discovery of a large amount of narcotics and contraband
16
(cellphones) concealed within the Facility D VOC Welding
17 classroom.
18 On 04/03/2019 ISP received the results from the
Department of Justice Bureau of Forensics Services which
19 identified the controlled substances sent for testing
results were positive for Heroin and Methamphetamines.
20
Therefore, you MOLINA are being charged with Conspiring
21
to Distribute a Controlled Substance for sales [of]
heroin and methamphetamines.
22
23 (TAC Exh. C). The Form indicates that the confidential source(s)
were considered reliable because they “previously provided
24 confidential information which proved to be true,” and because
“[p]art of the information provided [was] corroborated through
25 investigation or by information provided by non-confidential
sources.” (TAC Exh. C). In addition, the Form notes that the
26
documentation for the confidential information was located in
27 confidential memoranda authored by Nunez, dated September 10, 2018,
and January 4 and 18, 2019, and a “confidential debrief” by Sgt.
28 Zermeno, dated December 3, 2018. (TAC Exh. C).
1 controlled substances. (TAC at 21; TAC Exh. D). On May 28, 2019,
2 Defendant Associate Warden Moore, the chief disciplinary officer,
3 confirmed the sanctions and penalties, including 180 days of lost
4 credits, 10 days confined to quarters, and the temporary loss of
5 various privileges. (TAC at 22; TAC Exh. D).
6
7 Plaintiff submitted administrative appeals claiming that
8 Defendants Nunez, Zermeno, Frias, Gasgonia, and Chief Deputy Warden
9 Smith conspired to violate his rights in these disciplinary
10 proceedings. (TAC at 24-25; TAC Exh. A). Defendants Cota and
11 Smith denied the appeal at the second level on July 17, 2019, and
12 Defendant Liu denied the third-level appeal on November 1, 2019.
13 (TAC at 24-25; TAC Exh. B).
14
15 The following January, Plaintiff was again subjected to a
16 disciplinary charge. According to Plaintiff, a team of ISU and
17 Institutional Gang Investigations unit (“IGI”) officers
18 “simultaneously” removed about twenty inmates, including
19 Plaintiff, from their cells for searching and questioning in the
20 early morning hours on January 23, 2020. (TAC at 22). Defendant
21 Wilson searched Plaintiff’s cell that morning and purportedly found
22 and confiscated two cell phones and chargers, for which Plaintiff
23 was subsequently charged with a rule violation (RVR Log No.
24 6959996, or “2020 RVR”). (TAC at 22; TAC Exh. F). At the
25 disciplinary hearing on February 4, 2020, Plaintiff denied
26 possessing the phone, and the testimony of several inmate witnesses
27 revealed a discrepancy in the time of the search as recorded on
28 the RVR. (TAC at 22-23; TAC Exh. F). The presiding hearing
1 officer, Defendant Lt. Zavala, found Plaintiff not guilty based on
2 the inconsistent time recorded on the RVR and the officers’ failure
3 to follow proper evidence procedures. (TAC at 23; TAC Exh. F).
4
5 Plaintiff asserts that this “coordinated institutional raid”
6 on January 23, 2020, “was directed, planned, orchestrated,
7 implemented and/or approved by” Defendants Diaz, Macomber, Gipson,
8 Lozano, Moseley, Stinson, McDowell, and Smith (all of whom are sued
9 solely in their official capacity, as noted above).9 (TAC at 25;
10 see TAC 4-7). He states that this was carried out “to enforce an
11 underground policy of retaliation against ‘targeted’ state
12 prisoners,” including Plaintiff. (TAC at 25-26). He claims that
13 these Defendants thus violated his rights under the “Fifth, Sixth,
14 Eighth and Fourteenth Amendments to the United States Constitution
15 pursuant to 42 U.S.C. § 1985.” (TAC at 25). He further claims
16 that these Defendants violated California’s Information Practices
17 Act (Cal. Civ. Code, § 1798 et seq.) by causing “manufactured,
18 falsified documents” to be placed in Plaintiff’s file.10 (TAC at
19
9 Plaintiff later states that “all other named Defendants[]
20 in this cause of action are named in their individual capacities.”
(TAC at 26). However, Plaintiff’s list of Defendants includes
21
three other Defendants sued solely in their official capacity:
Martin, Cota, and Moore. (See TAC at 7, 11-12).
22
23 10 This state law provides, in relevant part, that a person
may bring a civil action for damages and injunctive relief against
24 an agency whenever such agency “[f]ails to maintain any record
concerning any individual with such accuracy, relevancy,
25 timeliness, and completeness as is necessary to assure fairness in
any determination relating to the qualifications, character,
26
rights, opportunities of, or benefits to the individual that may
27 be made on the basis of such record, if, as a proximate result of
such failure, a determination is made which is adverse to the
28 individual.” Cal. Civ. Code §§ 1798.45(b), 1798.47, 1798.48.
1 26). Plaintiff states that he sues these Defendants in their
2 official capacities for declaratory and injunctive relief “for the
3 removal of [the 2019 RVR].” (TAC at 26). Plaintiff also seeks
4 punitive damages from these Defendants. (TAC at 26).
5
6 Plaintiff claims that the other Defendants who are sued in
7 their individual capacities (Liu, Frias, Lt. Gasgonia, Sgt.
8 Zermeno, Striplin, Nunez, Wilson, and Montgomery) violated his
9 rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments
10 by participating in an “effort to fabricate, falsify, manufacture
11 and present inaccurate, untruthful and unreliable documentation
12 and false physical evidence” against Plaintiff. (TAC at 26-27;
13 see TAC 8-12). He seeks compensatory and punitive damages from
14 these “second tier Defendants.” (TAC at 27).
15
16 STANDARD OF REVIEW
17
18 Congress mandates that district courts initially screen civil
19 complaints filed by prisoners seeking redress from a governmental
20 entity or employee. 28 U.S.C. § 1915A. A court may dismiss such
21 a complaint, or any portion thereof, if the court concludes that
22 the complaint: (1) is frivolous or malicious, (2) fails to state a
23 claim upon which relief may be granted, or (3) seeks monetary
24 relief from a defendant who is immune from such relief. Id.
25 § 1915A(b); see also id. § 1915(e)(2) (The court “shall dismiss
26 the case at any time if the court determines that . . . the
27 action . . . (i) is frivolous or malicious; (ii) fails to state a
28 claim on which relief may be granted; or (iii) seeks monetary
1 relief against a defendant who is immune from such relief.”);
2 accord Lopez v. Smith, 203 F.3d 1122, 1126–27 & n.7 (9th Cir. 2000)
3 (en banc). In addition, dismissal may be appropriate if a complaint
4 violates Rule 8 of the Federal Rules of Civil Procedure. McHenry
5 v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996); Nevijel v. Northcoast
6 Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).
7
8 In considering whether to dismiss a complaint, a court is
9 generally limited to the pleadings and must construe “[a]ll factual
10 allegations set forth in the complaint . . . as true and . . . in
11 the light most favorable” to the plaintiff. Lee v. City of Los
12 Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (citation omitted).
13 Moreover, pro se pleadings are “to be liberally construed” and
14 “held to less stringent standards” than those drafted by a lawyer.
15 Erickson, 551 U.S. at 94 (citation omitted); see also Hebbe v.
16 Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (“Iqbal incorporated the
17 Twombly pleading standard and Twombly did not alter courts’
18 treatment of pro se filings; accordingly, we continue to construe
19 pro se filings liberally when evaluating them under Iqbal.”).
20 Nevertheless, dismissal for failure to state a claim can be
21 warranted based on either the lack of a cognizable legal theory or
22 the absence of factual support for a cognizable legal theory.
23 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th
24 Cir. 2008).
25
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27
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1 DISCUSSION
2
3 Plaintiff’s Third Amended Complaint warrants dismissal for
4 violation of Federal Rule of Civil Procedure 8, failure to state a
5 claim for relief, and other deficiencies discussed below. Leave
6 to amend is granted, however, because it is not “absolutely clear
7 that the deficiencies of the complaint could not be cured by
8 amendment.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012).
9
10 A. The Third Amended Complaint Violates Federal Rule of Civil
11 Procedure 8
12
13 Rule 8 governs how to plead claims in a complaint.
14 Specifically, Rule 8(a) requires that a complaint contain “‘a short
15 and plain statement of the claim showing that the pleader is
16 entitled to relief,’ in order to ‘give the defendant fair notice
17 of what the . . . claim is and the grounds upon which it rests.’”
18 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting
19 Fed. R. Civ. P. 8(a)). To comply with Rule 8, moreover, each
20 allegation of a complaint must be “simple, concise, and direct,”
21 Fed. R. Civ. P. 8(d)(1), though conclusory allegations are
22 insufficient. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 686 (2009).
23 A complaint is subject to dismissal for violating Rule 8 if “one
24 cannot determine from the complaint who is being sued, for what
25 relief, and on what theory.” McHenry v. Renne, 84 F.3d 1172, 1178
26 (9th Cir. 1996).
27
28
1 Plaintiff’s Third Amended Complaint violates Rule 8 because
2 it fails to give Defendants fair notice of the claims being asserted
3 and the grounds on which each claim rests. Instead, the Third
4 Amended Complaint includes several pages of factual allegations
5 (see TAC at 15-25), followed by general assertions that Defendants
6 violated various constitutional rights (see TAC at 25, 27), but
7 Plaintiff never clearly states how each individual Defendant
8 violated each of these rights. For example, Plaintiff claims that
9 all the Defendants who are sued in their individual capacities –
10 i.e., Defendants (1) Liu, (2) Frias, (3) Lt. Gasgonia, (4) Sgt.
11 Zermeno, (5) Striplin, (6) Nunez, (7) Wilson, and (8) Montgomery
12 (see TAC 8-12) - violated his Fifth, Sixth, Eighth, and Fourteenth
13 Amendment rights by participating in an “effort to fabricate,
14 falsify, manufacture and present inaccurate, untruthful and
15 unreliable documentation and false physical evidence” against
16 Plaintiff. (TAC at 26-27). However, these Defendants each have
17 different duties and responsibilities in the prison, and they each
18 had a different role in the alleged circumstances. Moreover, each
19 of these constitutional amendments encompasses different legal
20 rights, with distinct requirements. The Fourteenth Amendment, for
21 example, encompasses rights to due process and equal protection,
22 among other rights. Without further clarification, each Defendant
23 would be unable to discern which rights he or she is alleged to
24 have violated, and what he or she allegedly did to violate such
25 rights.11
26
27
11It is also unclear whether Plaintiff intends to assert claims
28 under other constitutional provisions that are not specifically
1 The Third Amended Complaint thus warrants dismissal, with
2 leave to amend, for violation of Rule 8 because it deprives
3 Defendants of fair notice of who is being sued, for what conduct,
4 and on what legal grounds. See McHenry, 84 F.3d at 1178. To
5 remedy this problem, Plaintiff must, at a minimum, separate each
6 legal predicate into a separate claim and expressly identify which
7 Defendant(s) are sued in each claim, and which allegations are at
8 issue in each claim.
9
10 B. The Fifth and Sixth Amendments Are Inapplicable Here
11
12 As noted above, Plaintiff asserts that Defendants violated
13 his rights under the Fifth and Sixth Amendments, though he does
14 not specify what allegations are being offered to support such
15 claims. Regardless, these constitutional provisions have no
16 apparent relevance to this action.
17
18
19

20 mentioned in the Third Amended Complaint. In particular, Plaintiff
appears to claim that Defendants’ actions were part of an effort
21 to “retaliate” against him for being a class member in the Ashker
litigation and for filing other lawsuits against CDCR officials.
22
(See TAC at 17-18, 24-26). However, Plaintiff never indicates that
23 he is asserting a First Amendment retaliation claim. See Rhodes
v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (“Within the
24 prison context, a viable claim of First Amendment retaliation
entails five basic elements: (1) An assertion that a state actor
25 took some adverse action against an inmate (2) because of (3) that
prisoner’s protected conduct, and that such action (4) chilled the
26
inmate’s exercise of his First Amendment rights, and (5) the action
27 did not reasonably advance a legitimate correctional goal.”)
(footnote and citation omitted). If Plaintiff intends to do so,
28 he must clarify this.
1 The “Fifth Amendment’s Due Process and Equal Protection
2 Clauses apply only to the federal government, not to state actors.”
3 Peoples v. Schwarzenegger, 402 F. App’x 204, 205 (9th Cir. 2010);
4 see also Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir.
5 2001); Bingue v. Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008).
6 Because all the Defendants in this action are state actors, any
7 due process or equal protection claims are asserted pursuant to
8 the Fourteenth Amendment.
9
10 The Sixth Amendment, on the other hand, applies only to
11 criminal prosecutions. Because a prison disciplinary proceeding
12 is not a criminal proceeding, the Sixth Amendment is inapplicable
13 to any of Plaintiff’s allegations. Cook v. Solorzano, 2019 WL
14 1367808, at *5 (E.D. Cal. Mar. 26, 2019) (Sixth Amendment not
15 applicable to prison disciplinary proceedings); Killensworth v.
16 Godfrey, 2019 WL 5455717, at *7 (C.D. Cal. Oct. 24, 2019)
17 (no Sixth Amendment right to confront and cross-examine witnesses
18 at prison disciplinary hearing); see also Wolff v. McDonnell, 418
19 U.S. 539, 556 (1974) (“Prison disciplinary proceedings are not a
20 part of a criminal prosecution, and the full panoply of rights due
21 a defendant in such proceedings do not apply.”).
22
23 Accordingly, Plaintiff cannot state any claims under the Fifth
24 and Sixth Amendments.
25
26
27
28
1 C. Plaintiff Fails to State an Eighth Amendment Claim
2
3 The Third Amended Complaint cites that Eighth Amendment, but
4 it offers no facts to support a claim under this provision. The
5 Eighth Amendment’s prohibition against cruel and unusual punishment
6 protects prisoners from inhumane conditions of confinement. Morgan
7 v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (citing Farmer
8 v. Brennan, 511 U.S. 825, 832 (1994)). Prison officials therefore
9 have a “duty to ensure that prisoners are provided adequate
10 shelter, food, clothing, sanitation, medical care, and personal
11 safety.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). A
12 prison official violates the Eighth Amendment by failing to ensure
13 inmate safety when: (1) an inmate is incarcerated under conditions
14 posing “a substantial risk of serious harm”; and (2) the prison
15 official deliberately “disregards the risk by failing to take
16 reasonable measures to abate it.” Farmer, 511 U.S. at 837, 847;
17 Hearns v. Terhune, 413 F.3d 1036, 1040-42 (9th Cir. 2005).
18
19 Here, Plaintiff does not allege that Defendants caused him to
20 be subjected to a substantial risk of serious harm or otherwise
21 denied the “minimal civilized measure of life’s necessities.” See
22 Farmer, 511 U.S. at 834. Although Plaintiff alleges that he was
23 sent to administrative segregation, he fails to include any facts
24 about such conditions to show that they were cruel or inhumane in
25 any respect. See also Shotwell v. Brandt, 2012 WL 6569402, at *3
26 (N.D. Cal. Dec. 17, 2012) (“[T]he usual hardships associated with
27 administrative segregation do not violate the Eighth Amendment.”)
28 (citing Toussaint v. Yockey, 722 F.2d 1490, 1494 n. 6 (9th Cir.
1 1984); Anderson v. County of Kern, 45 F.3d 1310, 1315–16 (9th Cir.
2 1995)). Moreover, while Plaintiff alleges that he was punished
3 with a ten-day loss of “yard recreation privileges” among other
4 sanctions (TAC at 22), a short-term loss of outdoor exercise does
5 not rise to an Eighth Amendment violation. Compare Keenan v. Hall,
6 83 F.3d 1083, 1089-90 (9th Cir. 1996) (denial of outdoor exercise
7 for six months while in segregation sufficient to proceed to trial
8 on Eighth Amendment claim), with May v. Baldwin, 109 F.3d 557, 565-
9 66 (9th Cir. 1997) (temporary, twenty-one day denial of outdoor
10 exercise, with no medical effects, is not a substantial deprivation
11 under the Eighth Amendment). Accordingly, Plaintiff fails to state
12 an Eighth Amendment claim against Defendants.
13
14 D. Plaintiff Fails to State a Discrimination Claim Under the
15 Equal Protection Clause or 42 U.S.C. § 1985
16
17 Plaintiff appears to assert claims of discrimination under
18 the Equal Protection Clause, as well as 42 U.S.C. § 1985. (See
19 TAC 1, 13, 25). Such claims fail, however, because Plaintiff does
20 not demonstrate that Defendants’ actions against him had an
21 impermissibly discriminatory motive.
22
23 The Equal Protection Clause requires that persons who are
24 similarly situated be treated alike. City of Cleburne v. Cleburne
25 Living Center, Inc., 473 U.S. 432, 439 (1985). A plaintiff may
26 establish an equal protection claim by showing that the plaintiff
27 was intentionally discriminated against on the basis of the
28 plaintiff's membership in a protected class, such as race. See,
1 e.g., Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th Cir.
2 2005); Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir.
3 2001). “[N]either prisoners nor ‘persons convicted of crimes’
4 constitute a suspect class for equal protection purposes.” United
5 States v. Whitlock, 639 F.3d 935, 941 (9th Cir. 2011) (citations
6 omitted). Plaintiff does not allege that he was ever subjected to
7 discrimination on the basis of race or any other protected class.
8
9 If the actions in question do not involve a suspect
10 classification, a plaintiff may establish an equal protection claim
11 by showing that similarly situated individuals were intentionally
12 treated differently without a rational relationship to a legitimate
13 state purpose. Village of Willowbrook v. Olech, 528 U.S. 562, 564
14 (2000); San Antonio School District v. Rodriguez, 411 U.S. 1
15 (1972). To state an equal protection claim under this theory, a
16 plaintiff must allege that: (1) the plaintiff is a member of an
17 identifiable class; (2) the plaintiff was intentionally treated
18 differently from others who were similarly situated; and (3) there
19 is no rational basis for the difference in treatment. Village of
20 Willowbrook, 528 U.S. at 564.
21
22 Here, Plaintiff appears to claim that Defendants discriminated
23 against him as a participant in the Ashker hunger strike and
24 litigation. (See TAC at 13, 17-18, 22). However, aside from
25 conclusory allegations that he and others were “targeted” for
26 disciplinary violations, he fails to provide any facts that raise
27 a plausible inference that Defendants’ actions had a discriminatory
28 motive – i.e., that Defendants subjected Plaintiff to disciplinary
1 citations or other harms because of his involvement in the hunger
2 strike. It is not enough to allege merely that Plaintiff and many
3 other inmates were subjected to cell searches and questioning on a
4 particular day. Instead, to show discrimination, Plaintiff would
5 need to allege facts showing that Defendants treated him
6 differently from other, similarly situated inmates who had not
7 participated in the hunger strike.
8
9 Because Plaintiff’s allegations fail to demonstrate a
10 discriminatory motive, he also fails to state a claim under § 1985,
11 which generally requires, among other things, allegations of “some
12 racial, or perhaps otherwise class-based, invidiously
13 discriminatory animus behind the conspirators’ action.” Griffin
14 v. Breckenridge, 403 U.S. 88, 102 (1971); see also Caldeira v. Cty.
15 of Kauai, 866 F.2d 1175, 1182 (9th Cir. 1989) (“The absence of a
16 section 1983 deprivation of rights precludes a section 1985
17 conspiracy claim predicated on the same allegations.”). The Ninth
18 Circuit has “extended [§ 1985(3)] beyond race only when the class
19 in question can show that there has been a governmental
20 determination that its members require and warrant special federal
21 assistance in protecting their civil rights.” Schultz v.
22 Sundberg, 759 F.2d 714, 718 (9th Cir.1985) (internal quotation
23 marks omitted). “There are only two ways to show such a
24 governmental determination: ‘we require either that the courts have
25 designated the class in question a suspect or quasi-suspect
26 classification requiring more exacting scrutiny or that Congress
27 has indicated through legislation that the class required special
28 protection.’” Denney v. Drug Enf't Admin., 508 F. Supp. 2d 815,
1 836 (E.D. Cal. 2007) (quoting Shultz, 759 F.2d at 718; see also RK
2 Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1056 (9th Cir.
3 2002) (plaintiffs under § 1985(3) must show “that they are members
4 of a class that the government has determined ‘requires and
5 warrant[s] special federal assistance in protecting their civil
6 rights’”) (quoting Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536
7 (9th Cir. 1992)). The Third Amended Complaint is devoid of any
8 allegations that Plaintiff belongs to a protected class, and there
9 are no allegations that Defendants were motivated by a racial or
10 class-based, invidiously discriminatory animus. The absence of an
11 invidiously discriminatory animus on the part of Defendants is
12 fatal to Plaintiff’s § 1985 claim.
13
14 E. The Third Amended Complaint Fails to State a Due Process Claim
15 Against Defendants Striplin, Frias, Gasgonia, Liu, Wilson,
16 and Montgomery
17
18 1. Applicable Law
19
20 “To obtain relief on § 1983 claims based upon procedural due
21 process, the plaintiff must establish the existence of (1) a
22 liberty or property interest protected by the Constitution; (2) a
23 deprivation of the interest by the government; and (3) lack of
24 process.” Guatay Christian Fellowship v. Cnty. of San Diego, 670
25 F.3d 957, 983 (9th Cir. 2011) (citation and alterations omitted).
26 Thus, “[t]he first inquiry in every due process challenge is
27 whether the plaintiff has been deprived of a protected interest in
28 ‘property’ or ‘liberty.’” American Mfrs. Mut. Ins. Co. v.
1 Sullivan, 526 U.S. 40, 59 (1999); see also Bd. of Regents of State
2 Colls. v. Roth, 408 U.S. 564, 569 (1972) (“The requirements of
3 procedural due process apply only to the deprivation of interests
4 encompassed by the Fourteenth Amendment’s protection of liberty
5 and property.”).
6
7 “Prison disciplinary proceedings are not part of a criminal
8 prosecution, and the full panoply of rights due a defendant in such
9 proceedings does not apply.” Wolff, 418 U.S. at 556; Ponte v.
10 Real, 471 U.S. 491, 495 (1985). Rather, the Supreme Court has held
11 that, in the context of prison disciplinary hearings, due process
12 requires only certain procedural safeguards: (1) the inmate should
13 receive “advance written notice of the claimed violation” so the
14 inmate can marshal the facts and prepare a defense; (2) “[a]t least
15 a brief period of time after the notice, no less than 24 hours,
16 should be allowed to the inmate to prepare” for the hearing; (3)
17 the inmate “should be allowed to call witnesses and present
18 documentary evidence in his defense when permitting him to do so
19 will not be unduly hazardous to institutional safety or
20 correctional goals”; (4) “[w]here an illiterate inmate is involved,
21 . . . or [where] the complexity of the issue makes it unlikely that
22 the inmate will be able to collect and present the evidence
23 necessary for an adequate comprehension of the case,” the inmate
24 should be given assistance at the hearing; and (5) the inmate
25 should receive “a written statement by the factfinders as to the
26 evidence relied on and reasons for the disciplinary action taken.”
27 Wolff, 418 U.S. at 563-70 (citation omitted). Additionally,
28 inmates are entitled to a fair and impartial decisionmaker at
1 disciplinary hearings, see Edwards v. Balisok, 520 U.S. 641, 647
2 (1997) (“The due process requirements for a prison disciplinary
3 hearing are in many respects less demanding than those for criminal
4 prosecution, but they are not so lax as to let stand the decision
5 of a biased hearing officer who dishonestly suppresses evidence of
6 innocence.”), and “the requirements of due process are satisfied
7 if some evidence supports the [disciplinary] decision,”
8 Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455
9 (1985); Burnsworth v. Gunderson, 179 F.3d 771, 773 (9th Cir. 1999).
10
11 “Due process guarantees [an inmate] that the evidence used to
12 validate him meet the ‘some evidence’ evidentiary standard.”
13 Castro v. Terhune, 712 F.3d 1304, 1314 (9th Cir. 2013). This
14 “minimally stringent” test requires a federal court to determine
15 “only whether there is any evidence in the record that could support
16 the conclusion.” Id. (emphasis in original). Accordingly, the
17 court does “not examine the entire record, independently assess
18 witness credibility, or reweigh the evidence; rather, ‘the relevant
19 question is whether there is any evidence in the record that could
20 support the conclusion.’” Bruce v. Ylst, 351 F.3d 1283, 1287 (9th
21 Cir. 2003) (quoting Hill, 472 U.S. at 455-56). “Evidence only must
22 bear some indicia of reliability to be considered ‘some evidence.’”
23 Castro, 712 F.3d at 1314 (citation omitted). Further, evidence
24 may qualify as “some evidence” even where it does not “logically
25 preclude[] any conclusion but the one reached by the disciplinary
26 board.” Hill, 472 U.S. at 457.
27
28
1 A prison disciplinary committee’s determination that rests
2 upon confidential information satisfies due process if “(1) the
3 record contains some factual information from which the committee
4 can reasonably conclude that the information was reliable, and (2)
5 the record contains a prison official’s affirmative statement that
6 safety considerations prevent the disclosure of the informant's
7 name.” Zimmerlee, 831 F.2d at 186. “Review of both the reliability
8 determination and the safety determination should be deferential.”
9 Id. “Reliability may be established by: (1) the oath of the
10 investigating officer appearing before the committee as to the
11 truth of his report that contains confidential information, (2)
12 corroborating testimony, (3) a statement on the record by the
13 chairman of the committee that he had firsthand knowledge of
14 sources of information and considered them reliable based on the
15 informant's past record, or (4) an in camera review of the
16 documentation from which credibility was assessed.” Id. at 186–
17 87. “Proof that an informant previously supplied reliable
18 information is sufficient.” Id. at 187.
19
20 2. Analysis
21
22 Although unclear, Plaintiff’s Third Amended Complaint appears
23 to claim that Defendants violated due process by “participating in
24 [an] individual, collective, joint effort to fabricate, falsify,
25 manufacture and present inaccurate, untruthful and unreliable
26 documentation and false physical evidence against Plaintiff.” (TAC
27 at 13, 27). However, to state claims against Defendants in their
28 individual capacities, Plaintiff must allege facts showing how each
1 Defendant personally caused a violation of Plaintiff’s rights. See
2 Hines v. Youseff, 914 F.3d 1218, 1228 (9th Cir. 2019) (“[T]he
3 inmates must show that each defendant personally played a role in
4 violating the Constitution. An official is liable under § 1983
5 only if ‘culpable action, or inaction, is directly attributed to
6 them.’”) (footnotes and citations omitted); OSU Student Alliance
7 v. Ray, 699 F.3d 1053, 1069 (9th Cir. 2012) (a government official
8 may be held liable in his or her individual capacity under § 1983
9 only “for his or her own misconduct”) (quoting Iqbal, 556 U.S. at
10 676). Allegations regarding § 1983 causation “must be
11 individualized and focus on the duties and responsibilities of each
12 individual defendant whose acts or omissions are alleged to have
13 caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d
14 628, 633 (9th Cir. 1988) (citations omitted).
15
16 Here, Plaintiff sues eight different Defendants in their
17 individual capacities – Nunez, Zermeno, Striplin, Frias, Gasgonia,
18 Liu, Wilson, and Montgomery. (See TAC at 8-12). However, aside
19 from Nunez and Zermeno, Plaintiff fails to allege sufficient facts
20 showing how these individual Defendants violated his due process
21 rights.
22
23 First, Defendants Wilson and Montgomery did not cause a due
24 process violation because they were involved solely in the 2020
25 RVR matter, for which Plaintiff was subsequently found not guilty
26 and thus suffered no constitutional deprivation. (See TAC at 22-
27 24); see also Shotwell v. Brandt, 2012 WL 6569402, at *2 (N.D. Cal.
28 Dec. 17, 2012) (no due process violation where the RVR was
1 ultimately dismissed, as “[a] prisoner has no constitutionally
2 guaranteed immunity from being falsely or wrongly accused of
3 conduct which may result in the deprivation of a protected liberty
4 interest”) (citing Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir.
5 1989); Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986)).
6
7 Second, as for Defendants Striplin, Frias, Gasgonia, and Liu,
8 Plaintiff fails to allege that they ever knowingly caused Plaintiff
9 to be disciplined based on false or unreliable evidence, or that
10 they otherwise prevented Plaintiff from adequately defending
11 against the disciplinary charges in any respect. For example,
12 Plaintiff alleges that Officer Striplin was involved in handling
13 and assessing the drugs underlying the 2019 RVR charge, and that
14 Lt. Frias “approved” Officer Nunez’s “falsified [2019] RVR,” but
15 there is no indication that either Defendant knew or should have
16 known that false or unreliable evidence was being used against
17 Plaintiff in the matter. Furthermore, while Lt. Gasgonia, the
18 presiding disciplinary hearing officer, was responsible for
19 assessing the evidence against Plaintiff, see Zimmerlee, 831 F.2d
20 at 186, Plaintiff does not specify any way in which Gasgonia
21 neglected to fulfill that duty, nor is any due process violation
22 apparent on the face of the hearing report, as the Court has
23 previously explained.12 (See Dkt. No. 32 at 12-20; Dkt. No. 37 at
24
12 The disciplinary hearing report regarding the 2019 RVR
25 states that the confidential memoranda were all reviewed by the
hearing officer and were deemed reliable on several grounds,
26 including because other confidential sources independently
provided the same information, the confidential information was
27
self-incriminating, and/or the investigation corroborated part of
28 the confidential information. (See TAC Exh. D at 4-9). On its
1 15-19). Finally, Defendant Liu appears to have participated solely
2 by denying an administrative appeal regarding the 2019 RVR (TAC at
3 25), which does not render him liable for a due process violation.
4 See Fiorito v. Anderson, 2019 WL 1602176, at *3 (C.D. Cal. Apr.
5 10, 2019) (“Courts in this circuit generally agree that denying an
6 inmate appeal does not, by itself, lead to liability.”) (collecting
7 cases).
8
9 Accordingly, Plaintiff fails to state a due process claim
10 against Defendants Striplin, Frias, Gasgonia, Liu, Wilson, and
11 Montgomery.13
12
13
14
15
face, this would appear to suffice under Zimmerlee. See, e.g.,
16 Servin v. Hill, 2014 WL 6612028, at *9 (E.D. Cal. Nov. 20, 2014)
(disciplinary committee sufficiently established reliability of
17
confidential information by finding that “other confidential
18 source[s] had independently provided the same information,” “the
information provided by the source was self-incriminating,” and
19 “part of the information provided by the source was corroborated
through investigation or information provided by non-confidential
20 sources”) (citing Zimmerlee, 831 F.2d at 186–87); Flores v. Lewis,
2013 WL 664658, at *5 (N.D. Cal. Feb. 21, 2013) (same). To the
21
extent Plaintiff believes Lt. Gasgonia had a constitutional duty
to assess the evidence further, or to provide Plaintiff any further
22
opportunity to challenge the evidence against him in the
23 proceedings, Plaintiff must clarify his allegations in that regard.
24 13 Although Plaintiff potentially states a claim against
Defendants Nunez and Zermeno based on his allegations that these
25 Defendants falsified evidence against him for use in the 2019
disciplinary proceeding (see TAC at 18-21), dismissal of the entire
26
Third Amended Complaint, with leave to amend, is nonetheless
27 warranted due to Plaintiff’s failure to provide fair notice to any
Defendant of the claims and allegations being asserted, as
28 discussed above with respect to Rule 8.
1 F. Plaintiff’s Official Capacity Claims Are Deficient
2
3 Official-capacity suits provide “another way of pleading an
4 action against an entity of which an officer is an agent,” which
5 in this case is the CDCR, an agency of the State of California.
6 Kentucky v. Graham, 473 U.S. 159, 165 (1985); Community House, Inc.
7 v. City of Boise, Idaho, 623 F.3d 945, 966–67 (9th Cir. 2010) (an
8 official capacity suit is treated as a suit against the entity).
9 To state a claim against a state officer in his or her official
10 capacity, Plaintiff must identify a custom, policy, or practice of
11 the state or prison that is responsible for the alleged conduct.
12 Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001).
13
14 Here, assuming that the Third Amended Complaint adequately
15 states at least a due process claim against CDCR officials in their
16 official capacity based on an alleged policy of using fabricated
17 documents and other evidence to subject inmates such as Plaintiff
18 to disciplinary sanctions in violation of due process (see TAC at
19 13, 25-26), Plaintiff’s official-capacity claims are nonetheless
20 deficient for the following reasons.
21
22 First, Plaintiff seeks monetary relief in his claims against
23 the official-capacity Defendants (see TAC at 4, 6), which is barred
24 by the Eleventh Amendment. Howlett v. Rose, 496 U.S. 356, 365
25 (1990) (Eleventh Amendment bars suits for damages against states
26 and their official arms); Brown v. Cal. Dep’t of Corr., 554 F.3d
27 747, 752 (9th Cir. 2009) (“The State of California has not waived
28 its Eleventh Amendment immunity with respect to claims brought
1 under § 1983 in federal court, and the Supreme Court has held that
2 § 1983 was not intended to abrogate a State’s Eleventh Amendment
3 immunity.”). Only prospective injunctive relief is available
4 against officers sued in their official capacity. See Doe v.
5 Lawrence Livermore Nat. Lab'y, 131 F.3d 836, 839 (9th Cir. 1997)
6 (“In what has become known as part of the Ex parte Young doctrine,
7 a suit for prospective injunctive relief provides a narrow, but
8 well-established, exception to Eleventh Amendment immunity.”)
9 (citing Ex parte Young, 209 U.S. 123 (1908)).
10
11 Second, Plaintiff inappropriately sues eleven different
12 Defendants solely in their official capacity, including the
13 Secretary of the CDCR and several other high-level CDCR officials,
14 as well as the Warden and other supervisory officials at Ironwood.
15 (TAC at 4-7, 11-12). Because official-capacity claims are treated
16 as a suit against the entity, naming multiple employees of the same
17 agency is generally duplicative and redundant. See, e.g., Rosas
18 v. Baca, 2012 WL 933609, at *2 (C.D. Cal. Mar. 20, 2012) (dismissing
19 claims against three of four individual defendants sued in their
20 official capacities as duplicative); Thomas v. Baca, 2006 WL
21 132078, at *1 (C.D. Cal Jan. 13, 2006) (dismissing claims against
22 six of seven individual defendants sued in their official
23 capacities as duplicative).
24
25 Official-capacity claims for injunctive relief are
26 appropriate only against officers who have the authority to
27
28
1 implement the requested relief.14 See Hodgins v. Woodford, 2006 WL
2 2482423, at *2 (E.D. Cal. Aug. 28, 2006) (“It is not necessary to
3 name multiple defendants in their official capacity. Plaintiff
4 need only name that official who has some cognizance over the
5 policy at issue and who could effectively issue orders
6 within CDCR if the court were to rule in plaintiff’s favor.”);
7 Santos Garcia v. San Bernardino Sheriff’s Dep’t, 2020 WL 8365260,
8 at *5 (C.D. Cal. Dec. 8, 2020) (“[T]o pursue prospective injunctive
9 relief, [the plaintiff] must identify a specific [department]
10 official in his or her official capacity who has a direct connection
11 to the action that Plaintiff wishes to enjoin.”); see also Rouser
12 v. White, 707 F. Supp. 2d 1055, 1066 (E.D. Cal. 2010) (the proper
13 defendant for injunctive relief in suit seeking implementation of
14 CDCR policy is CDCR Secretary in his official capacity, while the
15 proper defendant to implement institution-specific policy is prison
16 warden in his official capacity). In any amended complaint,
17 therefore, Plaintiff should name in their official capacity only
18
19
20
14 Relatedly, officers sued solely in their official capacity
21 do not need to have had any personal involvement in the acts that
allegedly violated Plaintiff’s rights. See, e.g., Hartmann v.
22
California Dep't of Corr. & Rehab., 707 F.3d 1114, 1127 (9th Cir.
23 2013) (“A plaintiff seeking injunctive relief against the State is
not required to allege a named official’s personal involvement in
24 the acts or omissions constituting the alleged constitutional
violation.”) (citing Hafer v. Melo, 502 U.S. 21, 25 (1991);
25 Kentucky v. Graham, 473 U.S. 159, 166 (1985)). What matters is
that the named official can implement the requested injunctive
26
relief, in the event such relief is granted in the case. For that
27 reason, as noted above, the current Secretary of the CDCR, Kathleen
Allison, should be substituted for Ralph Diaz, who no longer serves
28 in that role. See Fed. R. Civ. P. 25(d).
1 those officers who have the authority to implement the injunctive
2 relief that Plaintiff seeks in this case.
3
4 CONCLUSION
5
6 For the reasons discussed above, the Court DISMISSES
7 Plaintiff’s claims WITH LEAVE TO AMEND.
8
9 If Plaintiff still wishes to pursue this action, he shall file
10 a Fourth Amended Complaint no later than 30 days from the date of
11 this Order. The Fourth Amended Complaint must cure the pleading
12 defects discussed above and shall be complete in itself without
13 reference to prior pleadings. See L.R. 15-2 (“Every amended
14 pleading filed as a matter of right or allowed by order of the
15 Court shall be complete including exhibits. The amended pleading
16 shall not refer to the prior, superseding pleading.”). This means
17 that Plaintiff must allege and plead any viable claims again.
18
19 In any amended complaint, Plaintiff should identify the nature
20 of each separate legal claim and confine his allegations to those
21 operative facts supporting each of his claims. For each separate
22 legal claim, Plaintiff should state the civil right that has been
23 violated and the supporting facts for that claim only. Pursuant
24 to Federal Rule of Civil Procedure 8(a), all that is required is a
25 “short and plain statement of the claim showing that the pleader
26 is entitled to relief.” However, Plaintiff is advised that the
27 allegations in the Fourth Amended Complaint should be consistent
28 with the authorities discussed above. In addition, the Fourth
1 Amended Complaint may not include new defendants or claims not
2 reasonably related to the allegations in the previously filed
3 complaints. Plaintiff is strongly encouraged to utilize the
4 standard civil rights complaint form when filing any amended
5 complaint, a copy of which is attached.
6
7 Plaintiff is explicitly cautioned that failure to timely file
8 a Fourth Amended Complaint, or failure to correct the deficiencies
9 described above, may result in a recommendation that this action,
10 or portions thereof, be dismissed with prejudice for failure to
11 prosecute and/or failure to comply with court orders. See Fed. R.
12 Civ. P. 41(b); Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d
13 884, 891 (9th Cir. 2019) (“The failure of the plaintiff eventually
14 to respond to the court’s ultimatum - either by amending the
15 complaint or by indicating to the court that it will not do so -
16 is properly met with the sanction of a Rule 41(b) dismissal.”
17 (emphasis omitted; quoting Edwards v. Marin Park, Inc., 356 F.3d
18 1058, 1065 (9th Cir. 2004))).
19
20 //
21
22 //
23
24 //
25

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1 Plaintiff is further advised that if he no longer wishes to
2 pursue this action in its entirety or with respect to particular
3 defendants or claims, he may voluntarily dismiss all or any part
4 of this action by filing a Notice of Dismissal in accordance with
5 Federal Rule of Civil Procedure 41(a)(1). A form Notice of
6 Dismissal is attached for Plaintiff’s convenience.
7
8 IT IS SO ORDERED.
9
10 Dated: December 28, 2021
11
______________/s/_____________
12 ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10042627. Public record. Not legal advice.