Hammler v. Alvarez

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 ALLEN HAMMLER, Case No.: 3:18-cv-0326-AJB-WVG

CDCR #F-73072,

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ORDER GRANTING DEFENDANT'S

Plaintiff,

13 MOTION TO DISMISS PURSUANT

vs. TO Fed. R. Civ. P. 12(b)(6)

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J. ALVAREZ; J. DEIS;

15 [ECF No. 70]

BARRIENTOS; HOUGH,

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Defendants.

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20 Plaintiff, Allen Hammler, currently incarcerated at California State Prison located

21 in Corcoran, California, and proceeding pro se, filed this civil rights action (“Compl.”)

22 pursuant to 42 U.S.C. § 1983, on February 9, 2018 (ECF No. 1).

23 I. Procedural History

24 Plaintiff initially filed this action pursuant to 42 U.S.C. § 1983 on February 9,

25 2018. (See ECF No. 1.) Plaintiff later filed a Motion to Proceed In Forma Pauperis

26 (“IFP”) on February 26, 2018. (See ECF No. 3.) On April 25, 2018, the Court

27 GRANTED Plaintiff’s Motion to Proceed IFP and directed the United States Marshals

28 Service to serve Plaintiff’s Complaint. (See ECF No. 5.)

1 On May 14, 2018, Plaintiff filed a “Motion to Withdraw Count Three and for

2 Ruling on Count Two,” followed by a “Motion for Ruling on Count 2.” (ECF Nos. 8,

3 10.) Count three of Plaintiff’s Complaint relates to his claims that Defendants violated

4 his Fourteenth Amendment right to due process through use of libel and slander. (See

5 Compl., ECF No. 1 at 15.)

6 On July 9, 2018, the Court GRANTED Plaintiff’s granted Plaintiff’s motion to

7 withdraw count three of Plaintiff’s Complaint. (See ECF No. 15 at 3.) However, the

8 Court DENIED Plaintiff’s motion for an “advisory opinion” relating to count two of his

9 Complaint. (See id.) The Court then construed Plaintiff’s Complaint as his First

10 Amended Complaint (“FAC”). (See id.)

11 On September 9, 2018, Defendants filed a “Motion to Dismiss to First Amended

12 Complaint” pursuant to Fed.R.Civ.P. 12(b)(6). (ECF No. 19.) In addition, Defendants

13 filed a “Motion for Order to Declare Plaintiff Vexatious, Requiring Posting of Security,

14 and Issuance of Pre-Filing Order.” (ECF No. 20.)

15 On July 24, 2019, the Court adopted Magistrate Judge Gallo’s Report and

16 Recommendation to DISMISS Plaintiff’s Eighth Amendment excessive force claims with

17 prejudice and without leave to amend, to GRANT qualified immunity to Defendants

18 Alvarez and Deis as to Plaintiff’s Eighth Amendment claims, and to GRANT dismissal of

19 Plaintiff’s First Amendment retaliation claims with leave to amend. (See ECF No. 61 at

20 9-10.)

21 On August 13, 2019, the Court adopted Judge Gallo’s Report and

22 Recommendation to DENY Defendants’ Motion requiring posting of security, GRANT

23 Defendants’ request for judicial notice and GRANT Defendants’ Motion to impose pre-

24 filing restrictions on Plaintiff as a vexatious litigant. (See ECF No. 53 at 7.)

25 On August 5, 2019, Plaintiff filed his Second Amended Complaint (“SAC”). (See

26 ECF No. 62.) Plaintiff also filed a Notice of Appeal to the Ninth Circuit Court of

27 Appeals that was later dismissed for lack of jurisdiction. (See ECF Nos. 66, 81-82.)

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1 On October 4, 2019, Defendants Alvarez, Barrientos, Deis, and Hough filed a

2 Motion to Dismiss Plaintiff’s SAC for failing to state a claim pursuant to Fed. R. Civ. P.

3 12(b)(6). (See ECF No. 70.) Plaintiff filed an Opposition to which Defendants filed a

4 Reply. (See ECF Nos. 74, 75.) Plaintiff later sought leave to file a Sur-Reply which was

5 granted, and the Sur-Reply was filed on January 15, 2020. (See ECF Nos. 78-80.)

6 The Court has considered Plaintiff’s pleadings, as well as Defendants’ Motion as

7 submitted, and has determined no oral argument is necessary pursuant to S.D. Cal. CivLR

8 7.1. For the reasons explained, the Court GRANTS Defendants’ Motion to Dismiss (ECF

9 No. 70) pursuant to Fed. R. Civ. P. 12(b)(6).

10 II. Motion to Dismiss

11 A. Standard of Review

12 “To survive a motion to dismiss, a complaint must contain sufficient factual

13 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

14 v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

15 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that

16 allows the court to draw the reasonable inference that the defendant is liable for the

17 misconduct alleged.” Id. at 679 (citing Twombly, 550 U.S. at 556). “Threadbare recitals

18 of the elements of a cause of action, supported by mere conclusory statements, do not

19 suffice.” Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555 (on motion to dismiss court is

20 “not bound to accept as true a legal conclusion couched as a factual allegation.”). “The

21 pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it

22 demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.”

23 Iqbal, 556 U.S. at 678 (citations omitted).

24 Nevertheless, claims asserted by pro se petitioners, “however inartfully pleaded,”

25 are held “to less stringent standards than formal pleadings drafted by lawyers.” Haines v.

26 Kerner, 404 U.S. 519-20 (1972). Thus, courts “continue to construe pro se filings

27 liberally when evaluating them under Iqbal.” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7

28 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (noting

1 that courts “have an obligation where the petitioner is pro se, particularly in civil rights

2 cases, to construe the pleadings liberally and to afford the petitioner the benefit of any

3 doubt.”)).

4 III. Discussion

5 A. Defendants’ Arguments

6 Defendants seek dismissal of Plaintiff’s SAC on the grounds: (1) Plaintiff failed to

7 comply with the Court’s July 24, 2019 Order; (2) Plaintiff has failed to state a First

8 Amendment retaliation claim against Defendants Alvarez, Deis, and Hough; (3)

9 Defendants are entitled to qualified immunity; and (4) Plaintiff failed to exhaust his

10 administrative remedies. See ECF No. 70 (“Mem. of P&As in Supp. of Mot. to

11 Dismiss”) at 2.

12 B. Plaintiff’s Allegations1

13 On November 15, 2016, Plaintiff claims he was “assaulted” by Correctional

14 Officers Hernandez and Figueroa.2 (SAC at 3.) On January 28, 2016, Plaintiff was

15 “collected from his assigned cell” by Defendants Sergeant Alvarez and Correctional

16 Officer Deis in order to be interviewed regarding the “assault.” (Id.)

17 Plaintiff was interviewed by Lieutenant Piket3 and “escorted back to his cell” by

18 Alvarez and Deis. (Id.) When Plaintiff returned to his cell, he “noted that a number of

19 his legal books were jumbled into a pile on the floor” and “some books were torn in half”

20 while “others were visibly damaged.” (Id.)

21 As Alvarez was removing Plaintiff’s “leg irons,” Plaintiff asked Alvarez “why his

22 cell had been searched” while he was being “interview[ed] about a staff complaint.” (Id.

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25 1 Page numbers for all documents filed in the Court’s Case Management/Electronic Case

File (“CM/ECF”) will refer to the pagination generated by CM/ECF as indicated on the

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top right-hand corner of each chronologically numbered docket entry.

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2 Hernandez and Figueroa are not named Defendants.

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1 at 4.) Plaintiff told Alvarez “that’s retaliation” to which Alvarez purportedly responded

2 “no, it’s not” and told Plaintiff that they were “looking for contraband.” (Id.) Plaintiff

3 told Alvarez that “those are all legal books and look how you’ve torn them up.” (Id.)

4 Plaintiff alleges Alvarez responded, “you can get some new ones with all that money

5 you’re gonna get from suing us.” (Id.) Plaintiff claims he told Alvarez “go get the

6 Lieutenant” to which Alvarez responded, “what for, he already knows we searched your

7 cell.” (Id.)

8 Plaintiff told Alvarez that “[Lieutenant Piket] don’t know y’all tore up my legal

9 books and I ain’t giving up the cuffs until he comes over here.” (Id.) Plaintiff claims

10 Alvarez then “grabbed hold of the chain of which [Deis] had already been holding.” (Id.

11 at 5.) Alvarez told Plaintiff “I’m giving you a direct order to put your hands out of the

12 food port.” (Id.) Plaintiff “refused” and told Alvarez again to “go get the Lieutenant.”

13 (Id.)

14 The cell door was closed, and Plaintiff said to Alvarez “I ain’t pulling on the chain

15 or actively resisting, so you can’t pull the chain either.” (Id.) Alvarez responded, “no

16 one is gonna pull the chain, so don’t resist.” (Id.) Plaintiff told Alvarez that “I’m not

17 putting my hands out, so call the Lieutenant.” (Id.)

18 Plaintiff claims Alvarez “began slowly pulling the chain anyway causing Plaintiff

19 to have to turn his back to the door.” (Id.) Plaintiff said to Alvarez “stop pulling the

20 fuckin’ chain, I’m not resisting and won’t resist, follow procedure.” (Id.) While Alvarez

21 was still pulling the chain, with Deis “aiding,” Alvarez “simultaneously reached into the

22 food port and taking hold of the link to the handcuffs he began to forcefully pull

23 Plaintiff’s hands into and through the food port.” (Id. at 6.)

24 Plaintiff claims he began yelling “I’m no threat to anyone, I’m not resisting, stop

25 pulling the chain” repeatedly to Alvarez. (Id.) Plaintiff alleges Alvarez began yelling

26 “stop resisting, stop resisting” while continuing to “yank the chain.” (Id.) Plaintiff

27 claims that his left hand was “caught inside of the door causing him to scream out in

28 pain” as Alvarez and Deis continued to “pull the chain.” (Id.) Plaintiff claims he tried to

1 “unhitch the cuff with his right hand” while Alvarez reached into the door and “attempted

2 to unlock the cuffs.” (Id.) Plaintiff claims that his left hand “got in Alvarez’s way” and

3 Alvarez “jabbed it with the key” causing Plaintiff to have cuts on his hand. (Id. at 6-7.)

4 Alvarez “managed to use the key to unlock the cuff of Plaintiff’s right hand.” (Id.

5 at 7.) Plaintiff “able to unhitch his left hand from the food port.” (Id.) Plaintiff’s left

6 hand was “forcefully pulled through and out of the food port where Deis grabbed hold of

7 it and violently twisted it while Alvarez unlocked the cuff.” (Id.) “Both hands now free

8 of the cuffs, Deis released the left, Plaintiff pulled it in, and the food port was slammed

9 shut by Alvarez.” (Id.)

10 Plaintiff alleges “moments later” he “began to have chest pains and was taken to

11 CTC/Medical to be evaluated.” (Id.) When Plaintiff returned to “ASU” he was met by

12 Lieutenant Garcia4 “who came out from the office clapping loudly.” (Id.) Plaintiff

13 claims Garcia told him “thanks for the overtime.” (Id. at 8.) Plaintiff responded to

14 Garcia “no court will be dumb enough to believe y’all not setting all this up.” (Id.)

15 Plaintiff also told Garcia “I’m gonna sue the hell out of y’all.” (Id.) Plaintiff claims

16 Garcia said, “big deal, that ain’t no surprise, you go ahead and sue me, but look that’s

17 your shit on the tier not mine.” (Id.)

18 Garcia then left and Correctional Officer Barrientos “stayed behind to issue

19 Plaintiff a receipt for the confiscated legal books and a cell search slip.” (Id. at 8-9.)

20 Plaintiff claims that Alvarez and Deis’ actions with regard to the food port incident were

21 in “violation” of “procedures/prerequisites.” (Id. at 9.) Plaintiff claims that as a result of

22 Alvarez and Deis’ actions he “suffered injuries to the hands, consisting of a stab wound,

23 cuts, swelling, bruising, [and] nerve damage.” (Id. at 10.)

24 Plaintiff alleges these actions were taken in “retaliation for Plaintiff’s protected

25 conduct and participating in [the] interview relevant to the complaint filed.” (Id. at 11.)

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1 Plaintiff “alleges that the Defendants acted in concert to reproach him for exercising his

2 right to free speech, for speaking his peace during the interview.” (Id.)

3 “In furtherance of the conspiracy to deprive Plaintiff of rights secured by and

4 through the Constitution,” Plaintiff claims Deis “witnessed [Sergeant] Cabales5 admonish

5 Plaintiff of his right to remain silent under Miranda.” (Id. at 13.) Plaintiff claims all the

6 named Defendants engaged in a “conspiracy” which caused him to “seek further

7 psychological counseling” that “forcefully placed [him] into mental hospital as a direct

8 and proximate result.” (Id.)

9 Plaintiff alleges that “in the course of the alleged conspiracy,” he was issued a

10 rules violation report (“RVR”). (Id. at 14.) Plaintiff claims Alvarez and Deis “falsified

11 facts to retaliate against Plaintiff for all the above alleged” and in an “attempt to cover up

12 their illegal actions and use of unnecessary and excessive force.” (Id. at 14-15.)

13 Plaintiff alleges that Barrientos and Hough entered his cell “for the sole purpose of

14 retaliating against him for taking part in the interview.” (Id. at 16.) Plaintiff claims

15 Barrientos and Hough “willing took on key roles in the conspiracy alleged, facilitating

16 each and every adverse action that followed.” (Id.) Plaintiff allege they “destroyed his

17 legal books” claiming that they took Plaintiff’s legal books because “Plaintiff had a

18 number in excess” that was allowed. (Id.)

19 Plaintiff seeks $1,000,000 in compensatory damages, $1,000,000 in punitive

20 damages, and “costs of litigation.” (Id. at 28.)

21 C. Eighth Amendment claims

22 First, Defendants move to dismiss Plaintiff’s Eighth Amendment claim on the

23 ground that Plaintiff “did not comply with this Court’s Order on amendment.” Defs.’

24 Mem. of P&As in Supp. of Mot. to Dismiss at 16-17. In Plaintiff’s FAC, he alleged that

25 Defendants violated his Eighth Amendment right to be free from cruel and unusual

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1 punishment by using excessive force against him. See FAC at 3-11. This Court found

2 that Plaintiff failed to sufficiently allege facts to support any element of an Eighth

3 Amendment excessive force claim. See July 24, 2019 Order at 8. Moreover, the Court

4 found that even if Plaintiff were able to allege facts sufficient to state a claim, Defendants

5 were entitled to qualified immunity as to Plaintiff’s Eighth Amendment claim. See id. at

6 9. Thus, Plaintiff’s Eighth Amendment excessive force claim was dismissed with

7 prejudice and without leave to amend. See id. at 10.

8 Despite the Court’s Order, Plaintiff’s SAC is nearly identical to his FAC and he

9 does appear to attempt to re-allege his Eighth Amendment excessive force claim. In fact,

10 Plaintiff’s SAC is merely a photocopy of his FAC with the exception that Plaintiff has

11 drawn a line through the cause of action previously labeled as an Eighth Amendment

12 excessive force claim and merely adds an additional paragraph to this cause of action

13 which contains no factual allegations. See SAC at 3, 11.

14 Plaintiff argues in his Opposition that the “Eighth Amendment claims that are

15 alleged in the SAC do not go to the excessive force claims that were dismissed with

16 prejudice.” ECF No. 74 (“Opp’n”) at 4. Instead, Plaintiff maintains that these “claims

17 before the Court now go to deliberate indifference to Plaintiff’s constitutional rights.” Id.

18 Plaintiff also claims that he has “found a viable legal theory by which to hold the

19 Defendants to answer via the state claims for assault where the excessive force claim

20 would not be allowed.” Id. at 7.

21 While not entirely clear, it appears that Plaintiff is using the same set of facts that

22 previously formed the basis of his Eighth Amendment excessive force claim and now

23 intends to use those claims to support an Eighth Amendment failure to protect claim. To

24 find a violation of the “Cruel and Unusual Punishments Clause, a prison official must

25 have a ‘sufficiently culpable state of mind’.” Farmer v. Brennan, 511 U.S. 825, 834

26 (1994) (citations omitted.). A culpable state of mind in prison conditions cases requires a

27 finding that prison officials were deliberately indifferent to an inmate’s “health and

28 safety.” (Id.)

1 However, before determining whether a prison official was “deliberately

2 indifferent,” the constitutional deprivation alleged must be objectively, ‘sufficiently

3 serious’.” (Id.) (citations omitted). The Eighth Amendment requires prison officials to

4 “take reasonable measures to guarantee the safety of the inmates.” Hudson v. Palmer,

5 468 U.S. 517, 526-27 (1984). In order to state an Eighth Amendment failure to protect

6 claim, Plaintiff must allege facts sufficient to show that the risk he faced was objectively

7 “sufficiently serious” and that the conditions under which he was confined posed a

8 “substantial risk of serious harm” to him. Farmer, 511 U.S. at 834.

9 Here, Plaintiff’s own allegations indicate that he put himself at risk. When he was

10 sent back to his cell, he refused Alvarez’s orders to put his hands out of the “food-port”

11 so that his handcuffs could be removed. (FAC at 4.) Alvarez, along with Deis, reached

12 into the food port and took hold of Plaintiff’s handcuffs. See id. at 6. As a result,

13 Plaintiff’s left hand became caught in the door of the food-port. Id. at 6. As Alvarez and

14 Deis worked to remove Plaintiff’s handcuffs, Plaintiff claims that his left hand got in

15 Alvarez’s way. See id. Plaintiff alleges that Alvarez twice “jabbed” at Plaintiff’s left

16 hand and cut his hand. See id. at 6-7. Ultimately, Alvarez was able to unlock Plaintiff’s

17 handcuff. See id. at 7. These allegations by Plaintiff demonstrate that he put himself in

18 harm’s way and that his failure to comply with the orders to allow Defendants to remove

19 his handcuffs caused his injuries. Thus, the Court finds that the facts do not rise to the

20 level to plausibly demonstrate that Plaintiff faced a “substantial risk of harm to his health

21 or safety.” Farmer, 511 U.S at 834.

22 Moreover, even if Plaintiff were able to allege facts sufficient to show that either

23 Alvarez or Deis were to have “actually kn[own] of a substantial risk to [Plaintiff’s] health

24 or safety[,] they may be found free from liability if they responded reasonably to the risk,

25 even if the harm was not ultimately averted.” Farmer, 511 U.S. at 844. Here, Plaintiff

26 alleges that when his left hand became caught, both Alvarez and Deis worked to free him

27 of his hand cuffs to prevent further injury which is a reasonable response to the events set

28 in motion by Plaintiff’s own actions. Based on these allegations, the Court finds that

1 Plaintiff has failed to allege sufficient facts to establish that Alvarez or Deis had

2 subjective knowledge and conscious disregard of a substantial risk of harm to his health

3 or safety. Id. at 837. Therefore, Defendants’ Motion to Dismiss Plaintiff’s Eighth

4 Amendment claims is GRANTED.

5 C. Retaliation Claims

6 Defendants argue that Plaintiff’s retaliation claims are insufficient to state a

7 plausible claim for relief. See Defs.’ Mem. of P&As in Supp. of Mot. to Dismiss at 10-

8 14. Defendants argue Plaintiff’s retaliation claims are insufficient to state a plausible

9 claim for relief on the grounds that: (1) Plaintiff has failed to allege any facts to establish

10 a causal connection between the disciplinary report filed by Deis and grievances filed by

11 Plaintiff; (2) Plaintiff has alleged no facts to support a showing that either Deis or

12 Alvarez knew that Plaintiff had filed a grievance against them; and (3) Plaintiff has failed

13 to demonstrate any causal connection between the cell search by Barrientos and Hough’s

14 and Plaintiff filing an inmate grievance. Id. at 18-24.

15 In his Opposition, however, Plaintiff claims that his First Amendment retaliation

16 claim is not “predicated on issuance of the RVR” issued by Deis. Opp’n at 7. Instead,

17 Plaintiff claims his retaliation claims are based on his allegations that the cell search was

18 conducted in retaliation for Plaintiff “exercising [his] right to speak in the [Piket]

19 interview.” Id.

20 “Within the prison context, a viable claim of First Amendment retaliation entails

21 five basic elements: (1) An assertion that a state actor took some adverse action against

22 an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4)

23 chilled the inmate's exercise of his First Amendment rights, and (5) the action did not

24 reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559,

25 567–68 (9th Cir. 2005) (citations omitted).

26 As the Court noted with regard to Plaintiff’s Eighth Amendment claims, most of

27 his allegations relating to the purported incident of retaliation contained in his FAC are a

28 photocopy of his original Complaint. These identical factual allegations were already

1 found by the Court to be deficient to state a retaliation claim. Plaintiff does add an

2 allegation that Barrientos and Hough entered “his cell for the sole purpose of retaliating

3 against him for taking part in the interview.” (FAC at 16.)

4 Adverse action taken against a prisoner “need not be an independent constitutional

5 violation.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (internal citations

6 omitted). A causal connection between the adverse action and the protected conduct can

7 be alleged by an allegation of a chronology of events from which retaliation can be

8 inferred. Id. The filing of grievances and the pursuit of civil rights litigation against

9 prison officials are both protected activities. Rhodes, 408 F.3d at 567–68. The prisoner

10 must allege either a chilling effect on future First Amendment activities, or that he

11 suffered some other harm that is “more than minimal.” Watison, 668 F.3d at 1114.

12 Finally, a prisoner successfully pleads that the action did not reasonably advance a

13 legitimate correctional goal by alleging, in addition to a retaliatory motive, that the

14 defendant’s actions were “arbitrary and capricious” or that they were “unnecessary to the

15 maintenance of order in the institution.” Id.

16 Here, once again, the Court finds that Plaintiff alleges no facts to support a causal

17 connection between the search of his cell by Hough and Barrientos and his participation

18 in the interview with Lieutenant Piket. The Court previously found that Plaintiff’s

19 Complaint was devoid of any factual allegations to suggest that “Hough or Barrientos

20 knew that an interview was taking place, the purpose of the interview, or even where

21 Plaintiff was at the time.” See Report and Recommendation dated February 4, 2019, ECF

22 No. 53 at 21; Order Adopting Report and Recommendation dated July 24, 2019, ECF No.

23 61. Plaintiff was granted leave to amend his pleading specifically to plead allegations to

24 support a causal connection between his interview and the search conducted by Hough

25 and Barrientos. See id. Plaintiff must allege a causal connection between the adverse

26 action and the protected conduct. Watison, 668 F.3d at 1114. Plaintiff simply re-alleges

27 the facts that the Court has already found deficient and adds no additional facts to support

28 this claim. Instead, as noted above, he only adds the conclusory allegations that

1 Barrientos and Hough entered “his cell for the sole purpose of retaliating against him for

2 taking part in the interview.” (FAC at 16.)

3 “The pleading standard Rule 8 announces does not require ‘detailed factual

4 allegations,’ but it demands more than an unadorned, the defendant-unlawfully-harmed-

5 me accusation.” Iqbal, 556 U.S. at 678 (citations omitted). Plaintiff’s statement is a

6 conclusory one and does not allege any specific facts to show that either Hough or

7 Barrientos were aware that Plaintiff was conducting an interview. There is simply no

8 causal connection alleged by Plaintiff between the exercise of his First Amendment rights

9 and the cell search. Therefore, the Court finds that Plaintiff has failed to allege factual

10 allegations to support a finding that either Hough or Barrientos conducted the cell search

11 in retaliation for Plaintiff exercising his First Amendment rights. Accordingly,

12 Defendants’ Motion to Dismiss Plaintiff’s First Amendment retaliation claims is

13 GRANTED.

14 D. Fourteenth Amendment claims

15 Defendants also seek dismissal of Plaintiff’s Fourteenth Amendment due process

16 claims. See Defs.’ Mem. of P&As in Supp. of Mot. to Dismiss at 16-18. Plaintiff’s SAC

17 is unclear as to what forms the basis of his Fourteenth Amendment. However, Plaintiff

18 does allege that Defendants violated his “14th Amendment rights substantively.” SAC at

19 15. Plaintiff claims that he has a “liberty interest in avoiding having Defendants take any

20 physical actions against him outside the processes.” Id.

21 To the extent that Plaintiff seeks to bring a Fourteenth Amendment substantive due

22 process claim based on the same set of facts that he purportedly brings his Eighth

23 Amendment claims, his Fourteenth Amendment claims must be dismissed. “Where a

24 particular Amendment ‘provides an explicit textual source of constitutional protection’

25 against a particular sort of government behavior, ‘that Amendment, not the more

26 generalized notion of “substantive due process,” must be the guide of analyzing these

27 claims.” Albright v. Oliver, 510 U.S. 266, 273 (1994) (quoting Graham v. Connor, 490

28 U.S. 386, 395 (1989)). “[I]f a constitutional claim is covered by a specific constitutional

1 provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under

2 the standard appropriate to that specific provision, not under the rubric of substantive due

3 process.” United States v. Lanier, 520 U.S. 259, 272 n. 7 (1997). Here, Plaintiff’s

4 Fourteenth Amendment allegations are based on the same set of facts he has brought his

5 claims of violation of the Eighth Amendment’s prohibition of cruel and unusual

6 punishment.

7 Therefore, Defendants’ Motion to Dismiss Plaintiff’s Fourteenth Amendment

8 claim is GRANTED.

9 E. Conspiracy claims

10 Defendants’ seek dismissal of Plaintiff’s conspiracy claims. See Defs.’ Mem. of

11 P&As in Supp. of Mot. to Dismiss at 19-20.

12 A conspiracy claim under section 1983 must contain sufficient “factual matter,”

13 and not simply offer “naked” and conclusory assertions, Iqbal, 556 U.S. at 678, to

14 plausibly show: “(1) the existence of an express or implied agreement among the

15 defendant officers to deprive [the plaintiff] of his constitutional rights, and (2) an actual

16 deprivation of those rights resulting from that agreement.” Avalos v. Baca, 596 F.3d 583,

17 592 (9th Cir. 2010) (internal quotation marks omitted); Klein v. Williams, 714 F. Appx

18 631, 636 (9th Cir. 2017), cert. denied, 139 S. Ct. 76 (2018); Franklin v. Fox, 312 F.3d

19 423, 441 (9th Cir. 2001).

20 Here, the allegations of conspiracy in Plaintiff’s SAC are “unadorned” and

21 disjointed at best. Thus, the Court finds that Plaintiff’s SAC fails to provide any factual

22 enhancement to show that any of the named Defendants entered into an express or

23 implied agreement to violate his constitutional rights. See Iqbal, 556 U.S. at 678; Avalos,

24 596 F.3d at 592; Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (Although

25 accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to relief

26 above the speculative level....”) (citations omitted). Without any supporting facts,

27 Plaintiff claims there was a conspiracy between Barrientos and Hough and all the other

28 named Defendants to destroy his property. See SAC at 16. He claims they had a

1 “meeting of the minds” to “entrap” him. Id. He further claims that Defendants had a

2 “conspirator[ial] meeting of the minds to retaliate against him.” Id. at 17.

3 A plaintiff must set forth “the grounds of his entitlement to relief [,]” which

4 “requires more than labels and conclusions,” and “naked assertions” devoid of “further

5 factual enhancement.” Iqbal, 556 U.S. at 678 (citing Bell Atlantic Corp., 550 U.S. at 555,

6 557).

7 A conspiracy claim under § 1983 requires factual allegations supporting “an

8 agreement or ‘meeting of the minds’ to violate constitutional rights.” Franklin v. Fox,

9 312 F.3d 423, 441 (9th Cir. 2002) (quoting United Steelworkers of Am. v. Phelps Dodge

10 Corp., 865 F.2d 1539, 1540-41 (9th Cir. 1989)). “To be liable, each participant in the

11 conspiracy need not know the exact details of the plan, but each participant must at least

12 share the common objective of the conspiracy.” Franklin, 312 F.3d at 441 (quoting

13 United Steelworkers of Am., 865 F.2d at 1541).

14 Plaintiff does not allege coherent facts from which the Court could “draw a

15 reasonable inference” of a “meeting of the minds” to violate his constitutional rights. See

16 Iqbal, 556 U.S. at 678; Franklin, 312 F.3d at 441. A conspiracy does not exist simply

17 because Defendants all allegedly took the same action. See Myers v. City of Hermosa

18 Beach, 299 Fed. Appx. 744, 747 (9th Cir. 2008) (“Before a conspiracy claim can be

19 sustained, a plaintiff must show a meeting of the minds by the so-called conspirators.).

20 For all these reasons, the Court GRANTS Defendants’ Motion to Dismiss

21 Plaintiff’s conspiracy claims for failing to state a claim upon which relief may be granted.

22 F. Qualified Immunity

23 Defendants argue that they are entitled to qualified immunity. Because the Court

24 Plaintiff has failed to allege facts to support any claim of constitutional violations, it need

25 not reach any issues regarding qualified immunity. See Saucier v. Katz, 533 U.S. 194,

26 201 (2001) (“If no constitutional right would have been violated were the allegations

27 established, there is no necessity for further inquiries concerning qualified immunity.”);

28 County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998) (“[The better approach to

1 resolving cases in which the defense of qualified immunity is raised is to determine first

2 whether the plaintiff has alleged the deprivation of a constitutional right at all.”).

3 IV. Defendants’ Motion to Dismiss for Failing to Exhaust

4 Defendants also seek dismissal of some of Plaintiff’s claims on the ground that

5 Plaintiff failed to properly exhaust his administrative remedies because his grievance “did

6 not describe his retaliation and conspiracy claims brought in this action.” See Defs.’

7 Mem. of P&As in Supp. of Mot. to Dismiss at 31.

8 A. Legal Standards for Exhausting Administrative Remedies

9 “The Prison Litigation Reform Act of 1995 (PLRA) mandates that an inmate

10 exhaust ‘such administrative remedies as are available’ before bringing suit to challenge

11 prison conditions.” Ross v. Blake, 136 S. Ct. 1850, 1854-55 (2016) (quoting 42 U.S.C.

12 § 1997e(a)). “There is no question that exhaustion is mandatory under the PLRA[.]”

13 Jones v. Bock, 549 U.S. 199, 211 (2007) (citation omitted). The PLRA also requires that

14 prisoners, when grieving their appeal, adhere to CDCR’s “critical procedural rules.”

15 Woodford v. Ngo, 548 U.S. 81, 91 (2006). “[I]t is the prison’s requirements, and not the

16 PLRA, that define the boundaries of proper exhaustion.” Jones, 549 U.S. at 218.

17 The exhaustion requirement is based on the important policy concern that prison

18 officials should have “an opportunity to resolve disputes concerning the exercise of their

19 responsibilities before being haled into court.” Jones, 549 U.S. at 204. The “exhaustion

20 requirement does not allow a prisoner to file a complaint addressing non-exhausted

21 claims.” Rhodes, 621 F.3d at 1004.

22 Therefore, regardless of the relief sought, a prisoner must pursue an appeal through

23 all levels of a prison’s grievance process as long as that process remains available to him.

24 “The obligation to exhaust ‘available’ remedies persists as long as some remedy remains

25 ‘available.’ Once that is no longer the case, then there are no ‘remedies ... available,’ and

26 the prisoner need not further pursue the grievance.” Brown v. Valoff, 422 F.3d 926, 935

27 (9th Cir. 2005) (original emphasis) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)).

28 “The only limit to § 1997e(a)’s mandate is the one baked into its text: An inmate need

1 exhaust only such administrative remedies as are ‘available.’” Ross, 136 S. Ct. at 1862;

2 see also Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010) (PLRA does not require

3 exhaustion when circumstances render administrative remedies “effectively

4 unavailable.”).

5 B. Motion to Dismiss

6 The Ninth Circuit has held that “in those rare cases where a failure to exhaust is

7 clear from the face of the complaint, a defendant may successfully move to dismiss under

8 Rule 12(b)(6) for failure to state a claim.” Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir.

9 2014.) Defendants point to the grievance Plaintiff previously attached to his Complaint

10 in support of their argument Plaintiff failed to exhaust his conspiracy and retaliation

11 claims. See Defs.’ Mem. of P&As in Supp. of Mot. to Dismiss at 31 (citing ECF No. 1,

12 Ex. F-3, Inmate/Parolee Appeal CDCR 602, Log No. RJD-17-00105 and SVSP-16-

13 07495.)

14 Because the failure to exhaust is an affirmative defense, Defendants bear the

15 burden of raising it and proving its absence. Jones, 549 U.S. at 216; Albino, 747 F.3d at

16 1169 (noting that Defendant must “present probative evidence—in the words of Jones, to

17 ‘plead and prove’–that the prisoner has failed to exhaust available administrative

18 remedies under § 1997e(a)”).

19 In his Opposition, Plaintiff claims that his “descriptions” in the grievance he

20 previously attached to his Complaint were “apt to give proper notice and that is the truth

21 that must be accepted.” (Opp’n at 8.) At the heading of this grievance where there is a

22 space for Plaintiff to “[s]tate briefly the subject of your appeal,” Plaintiff lists

23 “enforcement, entrapment, excessive force, slander/libel, false report(s).” ECF No. 1 at

24 68. In the body of the grievance, Plaintiff states that while he was being interviewed in

25 the Lieutenant’s office regarding a “staff complaint,” Hough and Barrientos were

26 searching his cell and threw his “legal books out onto the tier.” Id. at 68-69. Plaintiff

27 also describes the same claims regarding excessive force which are found in his SAC.

28 See id. at 69.

1 While Plaintiff’s grievance did include allegations of excessive force, it did not

2 include sufficient detail to put any Defendants “on notice” of Plaintiff’s conspiracy or

3 retaliation claims against them. It also did not provide prison officials with a fair

4 opportunity to address or resolve his retaliation or conspiracy claims against Defendants

5 prior to bring this action to court. Rhodes, 621 F.2d at 1005 (“[A] prisoner must exhaust

6 his administrative remedies for the claims contained within his complaint before that

7 complaint is tendered to the district court.”) (emphasis added).

8 Here, the Court finds that Plaintiff’s grievance would not have alerted Defendants

9 as to the nature of the wrong for which Plaintiff now seeks redress. See Sapp v. Kimbrell,

10 623 F.3d 813, 922-23 (9th Cir. 2010). Therefore, the Court GRANTS Defendants’

11 Motion to Dismiss Plaintiff’s conspiracy and retaliation claims for failing to exhaust his

12 administrative remedies.

13 V. State Law claims

14 The only remaining claims in Plaintiff’s SAC are his claims brought under

15 California state law. “In any civil action of which the district courts have original

16 jurisdiction, the district courts shall have supplemental jurisdiction over all other claims

17 that are so related to claims in the action within such original jurisdiction that they form

18 part of the same case or controversy under Article III of the United States Constitution.”

19 28 U.S.C. § 1367(a). However, “once judicial power exists under § 1367(a), retention of

20 supplemental jurisdiction over state law claims under 1367(c) is discretionary.” Acri v.

21 Varian Assoc., Inc., 114 F.3d 999, 1000 (9th Cir. 1997).

22 “The district courts may decline to exercise supplemental jurisdiction over a claim

23 under subsection (a) if— (3) the district court has dismissed all claims over which it has

24 original jurisdiction.” 28 U.S.C. § 1367(c)(3). The Supreme Court has cautioned that “if

25 the federal claims are dismissed before trial, ... the state claims should be dismissed as

26 well.” United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966). For all the

27 reasons stated above, the Court finds that Plaintiff fails to state a plausible claim for relief

28 pursuant to 42 U.S.C. § 1983. Therefore, in the absence of any viable federal claim upon

1 || which § 1983 relief may be granted, the Court exercises its discretion and DISMISSES

2 Plaintiff's supplemental state law claims without prejudice pursuant to 28 U.S.C.

3 1367(c)(3). Id.

4 Conclusion and Order

5 Accordingly, the Court:

6 (1) GRANTS Defendants’ Motion to Dismiss Plaintiff’s SAC pursuant to Fed. R.

7 || Civ. P. 12(b)(6) (ECF No. 70) and DENIES leave to amend as futile;

8 (2) GRANTS Defendants’ Motion to Dismiss Plaintiff's conspiracy and

9 || retaliation for failing to exhaust his administrative remedies;

10 (3) DISMISSES all Plaintiffs supplemental state law claims without prejudice

11 || pursuant to 28 U.S.C. § 1367(c)(3).

12 IT IS SO ORDERED.

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14 ||Dated: June 15, 2020 ©

IS Hon. Anthony J. attaglia

16 United States District Judge

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