holding that there is no 14 respondeat superior liability under § 1983
How later courts described this case
- holding that there is no 14 respondeat superior liability under § 1983
Written by the judges who cited it.
The opinion
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8 IN THE UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 MYCHAEL TYRONE SHANNON, No. 2:17-CV-1084-DAD-DMC-P
12 Plaintiff,
13 v. FINDINGS AND RECOMMENDATIONS
14 RALPH DIAZ, et al.,
15 Defendants.
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17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
18 42 U.S.C. § 1983. Pending before the Court is Defendants’ motion to dismiss. See ECF No. 78.
19 Defendants have filed a request for judicial notice in support of their motion. See ECF No. 78-3.
20 Also filed in support of Defendants’ motion is the declaration of defense counsel, Andrea Sloan,
21 Esq. See ECF No. 79. Plaintiff has filed an opposition to Defendants’ motion. See ECF No. 80.
22 Defendants have filed a reply. See ECF No. 81. Plaintiff has filed a sur-reply without prior leave
23 of court. See ECF No. 82.
24 In considering a motion to dismiss, the Court must accept all allegations of
25 material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The
26 Court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer
27 v. Rhodes, 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S.
28 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All
1 ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen,
2 395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual
3 factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009).
4 In addition, pro se pleadings are held to a less stringent standard than those drafted by lawyers.
5 See Haines v. Kerner, 404 U.S. 519, 520 (1972).
6 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement
7 of the claim showing that the pleader is entitled to relief” in order to “give the defendant fair
8 notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp v. Twombly,
9 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order
10 to survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must contain
11 more than “a formulaic recitation of the elements of a cause of action;” it must contain factual
12 allegations sufficient “to raise a right to relief above the speculative level.” Id. at 555-56. The
13 complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Id. at
14 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the
15 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
16 Iqbal, 129 S. Ct. at 1949. “The plausibility standard is not akin to a ‘probability requirement,’ but
17 it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting
18 Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a
19 defendant’s liability, it ‘stops short of the line between possibility and plausibility for entitlement
20 to relief.” Id. (quoting Twombly, 550 U.S. at 557).
21 In deciding a Rule 12(b)(6) motion, the Court generally may not consider materials
22 outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998);
23 Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The Court may, however, consider: (1)
24 documents whose contents are alleged in or attached to the complaint and whose authenticity no
25 party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question,
26 and upon which the complaint necessarily relies, but which are not attached to the complaint, see
27 Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials
28 of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir.
1 1994).
2 Finally, leave to amend must be granted “[u]nless it is absolutely clear that no
3 amendment can cure the defects.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per
4 curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc).
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6 I. BACKGROUND
7 A. Procedural History
8 Addressing Plaintiff’s second amended complaint, the Court issued findings and
9 recommendations on August 16, 2019, that the action be dismissed without further leave to
10 amend for failure to state a claim. See ECF No. 35. In so doing, the Court applied a
11 reasonableness test. See id. Plaintiff did not file objections and the District Judge adopted the
12 findings and recommendations in full on October 11, 2019. See ECF No. 36. Final judgment
13 was issued the same day. See ECF No. 37.
14 On March 25, 2021, Plaintiff filed a motion for relief from the Court’s final
15 judgment. See ECF No. 41. On April 2, 2021, the District Judge granted Plaintiff’s motion,
16 citing the Ninth Circuit’s 2020 decision in Harrison v. Kernan, 971 F.3d 1069 (9th Cir. 2020),
17 which changed the level of scrutiny for the gender-based prison regulation at issue in this case to
18 intermediate scrutiny. See ECF No. 42 (minute order). Thereafter, Plaintiff filed the operative
19 third amended complaint after obtaining leave of court to amend, and Defendants filed the
20 pending motion to dismiss.
21 B. Plaintiff’s Allegations
22 This action currently proceeds on Plaintiff’s third amended complaint (TAC) at
23 ECF No. 66. See ECF No. 77 (order). Plaintiff names four Defendants, as follows: (1) Ralph
24 Diaz, former Secretary of California Department of Corrections and Rehabilitation (“CDCR”);
25 (2) Sergeant Swan, Correctional Officer at the California Medical Facility (“CMF”); (3) C.
26 Tileston, Associate Warden of CMF; and (4) Robert W. Fox, former Warden of CMF. See ECF
27 No. 66, pg. 1-2. Plaintiff alleges Defendants violated his right to equal protection under the
28 Fourteenth Amendment because female inmates in the CDCR are offered the choice of
1 purchasing any one of seven different kinds of alarm clocks and male inmates are afforded no
2 such choice. See id. at 3. Plaintiff alleges Defendant Diaz instituted the inmate property
3 regulation and Defendants Swan, Tileston, and Fox implemented it. See id. at 1-6. Plaintiff
4 specifically alleges Defendants acted with intentional discrimination during Plaintiff’s inmate
5 appellate review. See id. at 3.
6 Among these allegations of Plaintiff’s inmate appeal, Plaintiff claims Defendant
7 Swan commented, “Love to deny those constitutional rights.” See id. at 2-3. Plaintiff also claims
8 Defendants Tileston and Fox laughed at the comments made by Defendant Swan. See id.
9 Further, Plaintiff alleges Defendant Diaz “scoffed” at Plaintiff when Plaintiff attempted to
10 continue his inmate appeal, saying: “You failed to demonstrate the facts of your appeal regarding
11 the state-side ban I put in place on male prisoners owning alarm clocks.” See id. at 3.
12
13 II. DISCUSSION
14 In their motion to dismiss, Defendants argue: (1) Plaintiff has failed to allege any
15 facts establishing Defendant Diaz’s personal involvement or subsequent supervisory liability arising
16 from the property regulation at issue; and (2) Defendants are entitled to qualified immunity. See
17 ECF No. 78-1 (points and authorities). In support of their motion, Defendants have filed a request
18 for judicial notice of the following: (1) Plaintiff’s inmate grievance records; (2) the fact that
19 Defendant Diaz assumed the position of Secretary of the CDCR in September 2018, and resigned
20 from this position on October 1, 2021; and (3) a publication from the CDCR. See ECF No. 78-3
21 (request for judicial notice).
22 A. Failure to State a Claim Against Defendant Diaz
23 Defendants assert Plaintiff’s TAC fails to allege sufficient facts to show Defendant
24 Diaz, who is a supervisory defendant, was personally involved or subject to liability for the claimed
25 constitutional violation. See ECF No. 78-1, pg. 1-8.
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1 To state a claim under 42 U.S.C. § 1983, the plaintiff must allege an actual
2 connection or link between the actions of the named defendants and the alleged deprivations. See
3 Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A
4 person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of § 1983,
5 if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act
6 which he is legally required to do that causes the deprivation of which complaint is made.” Johnson
7 v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations concerning the
8 involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of
9 Regents, 673 F.2d 266, 268 (9th Cir. 1982). Rather, the plaintiff must set forth specific facts as to
10 each individual defendant’s causal role in the alleged constitutional deprivation. See Leer v.
11 Murphy, 844 F.2d 628, 634 (9th Cir. 1988).
12 Supervisory personnel are generally not liable under § 1983 for the actions of their
13 employees. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (holding that there is no
14 respondeat superior liability under § 1983). A supervisor is only liable for the constitutional
15 violations of subordinates if the supervisor participated in or directed the violations. See id. The
16 Supreme Court has rejected the notion that a supervisory defendant can be liable based on
17 knowledge and acquiescence in a subordinate’s unconstitutional conduct because government
18 officials, regardless of their title, can only be held liable under § 1983 for his or her own conduct
19 and not the conduct of others. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Supervisory
20 personnel who implement a policy so deficient that the policy itself is a repudiation of constitutional
21 rights and the moving force behind a constitutional violation may, however, be liable even where
22 such personnel do not overtly participate in the offensive act. See Redman v. Cnty of San Diego,
23 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc).
24 When a defendant holds a supervisory position, the causal link between such
25 defendant and the claimed constitutional violation must be specifically alleged. See Fayle v.
26 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978).
27 Vague and conclusory allegations concerning the involvement of supervisory personnel in civil
28 rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir.
1 1982). “[A] plaintiff must plead that each Government-official defendant, through the official’s
2 own individual actions, has violated the constitution.” Iqbal, 662 U.S. at 676.
3 In this case, Plaintiff’s TAC contains few factual allegations regarding Defendant
4 Diaz. Defendants assert:
5 . . . Plaintiff’s allegations fail to state a claim based on judicially
noticeable facts which show (1) Diaz had no involvement in Plaintiff’s
6 appeal (Moseley Decl. ¶ 4, Exhibit A); (2) Diaz was not Secretary when
the appeal was denied (Defs.’ Req. Judicial Not. Ex. A-1 (showing Diaz’s
7 tenure as CDCR Secretary as September 2018-October 1, 2020) versus
Moseley Decl. ¶ 4, Exhibit A (showing Plaintiff’s appeal was denied on
8 August 24, 2016)); and (3) Diaz had no involvement in the
implementation or enforcement of the regulations at issue during the
9 relevant time frame as he was also not the Secretary at that time (id.).
10 ECF No. 78-1, pg. 6.
11 The Court agrees with Defendants that Plaintiff’s TAC fails to allege sufficient fact
12 to show supervisory liability on the part of Defendant Diaz. As Defendants note, while Plaintiff
13 broadly alleges that Defendant Diaz “implemented” the inmate property regulation at issue and
14 even commented “…regarding the state-side ban I put in place on male prisoners…,” Plaintiff fails
15 to allege specific facts. See ECF No. 78, pg. 6. Plaintiff’s allegations fail to establish an affirmative
16 act or omission by Diaz that violated Plaintiff’s rights. Nor do these allegations causally link
17 Defendant Diaz to the alleged constitutional violation, or demonstrate a custom, policy, or practice
18 implemented by Defendant Diaz that was the moving force behind a constitutional violation arising
19 from the regulation barring male inmates from purchasing alarm clocks. Furthermore, Plaintiff
20 alleges Defendant Diaz failed to act on Plaintiff’s request for reconsideration of his inmate appeal.
21 See ECF No. 66, pg. 3. However, Plaintiff has not explained how this failure resulted in a
22 constitutional violation.
23 The Court does not reach Defendants’ other arguments, based on their request for
24 judicial notice, that judicially noticeable facts show that Defendant Diaz could not have been
25 involved in the alleged constitutional violation because he was not in a decision-making position
26 concerning creation or implementation of the regulation at issue. According to Defendants, Diaz
27 was Secretary of the CDCR from September 2018 through October 2020, and thus could not have
28 been involved in implementation of the regulation at issue in 2014 or application to Plaintiff,
1 including consideration of Plaintiff’s inmate appeal, in 2016. See ECF No. 78-1, pgs. 6-7.
2 First, just because Defendant Diaz was not CDCR director during the times relevant
3 to the TAC is not to say Defendant Diaz does not bear responsibility. It may be that Defendant
4 Diaz was involved in ways other than as Director of the CDCR after 2016. As discussed above,
5 Plaintiff has failed to allege facts to show Defendant Diaz’ involvement, which is a sufficient basis
6 to dismiss Defendant Diaz. Second, as discussed below the Court finds that Defendants are entitled
7 to qualified immunity on Plaintiff’s underlying constitutional claim, rendering moot any further
8 consideration of arguments based on potentially judicially noticeable facts.
9 B. Qualified Immunity
10 Defendants argue they are entitled to qualified immunity. See ECF No. 78-1, pg. 9-
11 13. Government officials enjoy qualified immunity from civil damages unless their conduct
12 violates “clearly established statutory or constitutional rights of which a reasonable person would
13 have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In general, qualified immunity
14 protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v.
15 Briggs, 475 U.S. 335, 341 (1986). In ruling upon the issue of qualified immunity, the initial inquiry
16 is whether, taken in the light most favorable to the party asserting the injury, the facts alleged show
17 the defendant’s conduct violated a constitutional right. See Saucier v. Katz, 533 U.S. 194, 201
18 (2001). If a violation can be made out, the next step is to ask whether the right was clearly
19 established. See id. This inquiry “must be undertaken in light of the specific context of the case,
20 not as a broad general proposition. . . .” Id. “[T]he right the official is alleged to have violated
21 must have been ‘clearly established’ in a more particularized, and hence more relevant, sense: The
22 contours of the right must be sufficiently clear that a reasonable official would understand that what
23 he is doing violates that right.” Id. at 202 (citation omitted). Thus, the final step in the analysis is to
24 determine whether a reasonable officer in similar circumstances would have thought his conduct
25 violated the alleged right. See id. at 205.
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1 When identifying the right allegedly violated, the Court must define the right more
2 narrowly than the constitutional provision guaranteeing the right, but more broadly than the factual
3 circumstances surrounding the alleged violation. See Kelly v. Borg, 60 F.3d 664, 667 (9th Cir.
4 1995). For a right to be clearly established, “[t]he contours of the right must be sufficiently clear
5 that a reasonable official would understand [that] what [the official] is doing violates the right.”
6 See Anderson v. Creighton, 483 U.S. 635, 640 (1987).
7 The first factors in the qualified immunity analysis involve purely legal questions.
8 See Trevino v. Gates, 99 F.3d 911, 917 (9th Cir. 1996). The third inquiry involves a legal
9 determination based on a prior factual finding as to the reasonableness of the government official’s
10 conduct. See Neely v. Feinstein, 50 F.3d 1502, 1509 (9th Cir. 1995). The district court has
11 discretion to determine which of the Saucier factors to analyze first. See Pearson v. Callahan, 555
12 U.S. 223, 236 (2009). In resolving these issues, the Court must view the evidence in the light most
13 favorable to plaintiff and resolve all material factual disputes in favor of plaintiff. See Martinez v.
14 Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003).
15 Defendants argue:
16 Defendants reasonably believed that all non-racial prison
policies…would pass constitutional muster so long as the policies satisfied
17 the deferential Turner rational-relationship test. See Turner v. Safley, 482
U.S. 78 (1987). Indeed, this Court so held when it previously found
18 Plaintiff failed to state a claim (F&Rs, ECF No. 36; Order Adopting
F&Rs, ECF No. 36), in Gonzalez v. Mullen, No. C 09-0953 CW PR, 2013
19 WL 1333560, at *4 (N.D. Cal. Mar. 29, 2013), which raised a similar
challenge to similar property regulations, and in Harrison v. Kernan, No.
20 16-CV-07103-RMI, 2021 WL 4295303, at *6 (N.D. Cal. Sept. 21, 2021),
which dismissed nearly identical claims.
21
ECF No. 78-1, pg. 10.
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23 Defendants’ arguments are well-taken. Plaintiff initiated this action in 2017 – before
24 Harrison was decided by the Ninth Circuit in 2020. Until 2020, courts had applied the lowest level
25 of scrutiny – reasonableness based on a rational relationship between the regulation and legitimate
26 penological interests – to claims challenging gender-based prison regulations like the regulation at
27 issue here. See e.g. Gonzalez, 2013 WL 1333560, at *4. In Gonzalez, for example, the district
28 court concluded that an inmate’s challenge to a gender-based prison regulation failed to state a
1 claim under the rational relationship reasonableness test. See id. This Court reached the same
2 conclusion when it initially dismissed the case in 2019. See ECF No. 36. Thus, at the time the
3 lawsuit was filed, the clearly established law upheld the regulation at issue. The law changed in
4 2020 with Harrison. However, whether a law is clearly established for purposes of qualified
5 immunity is based on the law at it existed at the time of the alleged violation, here sometime prior
6 to 2017 when the case was filed. See Robinson v. York, 566 F.3d 817, 826 (9th Cir. 2009).
7 Therefore, Defendants are entitled to qualified immunity.
8 On remand following the Ninth Circuit’s decision in Harrison, the district court
9 reached the same conclusion. See Harrison v. Kernan, 2021 WL 4295303, at *6. The court
10 stated:
11 Given the state of the law as described above, and given that
qualified immunity “gives government officials breathing room to make
12 reasonable but mistaken judgments by protecting all but the plainly
incompetent or those who knowingly violate the law,” it would be
13 impossible for Plaintiff to even prove that Defendants' promulgation of the
challenged regulations was mistaken in 2008, let alone proving that
14 Defendants were either incompetent or knowingly violated the law.
15 Id.
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1 Ill. CONCLUSION
2 Based on the foregoing, the undersigned recommends that Defendants’ motion to
3 | dismiss, ECF No. 78, be GRANTED, in whole, and that this action be DISMISSED without leave
4 || to amend.These findings and recommendations are submitted to the United States District Judge
5 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days after being
6 || served with these findings and recommendations, any party may file written objections with the
7 || Court. Responses to objections shall be filed within 14 days after service of objections. Failure to
8 | file objections within the specified time may waive the right to appeal. See Martinez v. YIst, 951
9 | F.2d 1153 (Oth Cir. 1991).
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11 | Dated: February 21, 2024 Ss..c0_,
DENNIS M. COTA
13 UNITED STATES MAGISTRATE JUDGE
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