Grady v. Alonzo

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 MITCHELL QUINTIN GRADY, Case No. 3:20cv1273-MMA-WVG

CDCR #AS-8775

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ORDER DISMISSING CLAIMS

Plaintiff,

13 PURSUANT TO 28 U.S.C. § 1915(e)(2)

vs. AND 28 U.S.C. § 1915A(b);

14

15 DIRECTING U.S. MARSHAL TO

MARIO ALONZO, et al., EFFECT SERVICE UPON

16

Defendants. DEFENDANTS PURSUANT TO 28

17 U.S.C. § 1915(d) AND FED. R. CIV. P.

4(c)(3)

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20 Plaintiff Mitchell Quintin Grady, a state prisoner currently incarcerated at Kern

21 Valley State Prison and proceeding pro se in this civil rights action pursuant 42 U.S.C. §

22 1983, alleges that five officials at Centinela State Prison, where he was formerly

23 incarcerated, violated his rights in connection with an altercation that occurred in

24 February 2020. See generally Doc. No. 10; see also Doc. No. 12 (notice of change of

25 address).

26 The Court previously granted Plaintiff’s motion to proceed in forma pauperis

27 (“IFP”), dismissed Plaintiff’s initial complaint for failure to state claim pursuant to 28

28 U.S.C. Section 1915(e)(2) and Section 1915A(b), and granted Plaintiff leave to amend his

1 claims. See Doc. No. 9 at 19. Plaintiff timely submitted a First Amended Complaint.

2 See generally Doc. No. 10.

3 I. Screening pursuant to 28 U.S.C. Section 1915(e)(2) and Section 1915A(b)

4 A. Standard of Review

5 Because Plaintiff is a prisoner and is proceeding IFP, his First Amended Complaint

6 requires a pre-answer screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b).

7 Under these statutes, the Court sua sponte must dismiss a prisoner’s IFP complaint, or

8 any portion of it, which is frivolous, malicious, fails to state a claim, or seeks damages

9 from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir.

10 2000) (en banc) (discussing 28 U.S.C. Section 1915(e)(2)); Rhodes v. Robinson, 621 F.3d

11 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. Section 1915A(b)). “The purpose of

12 [screening] is ‘to ensure that the targets of frivolous or malicious suits need not bear the

13 expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014)

14 (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

15 “The standard for determining whether a plaintiff has failed to state a claim upon

16 which relief can be granted under Section 1915(e)(2)(B)(ii) is the same as the Federal

17 Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter,

18 668 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121

19 (9th Cir. 2012) (noting that screening pursuant to Section 1915A “incorporates the

20 familiar standard applied in the context of failure to state a claim under Federal Rule of

21 Civil Procedure 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual

22 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.

23 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at

24 1121.

25 Detailed factual allegations are not required, but “[t]hreadbare recitals of the

26 elements of a cause of action, supported by mere conclusory statements, do not suffice.”

27 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for

28 relief [is] . . . a context-specific task that requires the reviewing court to draw on its

1 judicial experience and common sense.” Id. The “mere possibility of misconduct” or

2 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting

3 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969

4 (9th Cir. 2009).

5 B. Plaintiff’s Factual Allegations

6 The claims in this arise out of an alleged altercation between Plaintiff and

7 Defendant Alonzo, a correctional lieutenant, that occurred on February 11, 2020. See

8 Doc. No. 10, at 1. As Plaintiff was leaving the dining hall that morning, Defendant

9 Alonzo searched Plaintiff. See id. During that search, Defendant Alonzo “disrespected

10 [Plaintiff’s] Rastafarian religious faith by stealing [Plaintiff’s] religious necklace off the

11 ground and then wearing it around his neck.” See id. at 1, 3. Plaintiff does not describe

12 what happened next, but the incident evidently culminated in Plaintiff throwing a cup.

13 See id. at 3. As best as the Court can discern, Plaintiff argues that he threw the cup at the

14 ground, while Defendants largely contended both at the time and in subsequent

15 disciplinary proceedings that Plaintiff threw the cup at Defendant Alonzo, hitting him.

16 See id. While Plaintiff was in a holding cage after the altercation, Defendant Dominguez

17 allegedly mocked Plaintiff’s Rastafarian faith by playing Bob Marley’s music from his

18 office computer and laughing at Plaintiff. See id. at 4.

19 Plaintiff was sent to administrative segregation “to endure unusual punishment,”

20 received a “‘felony’ charge” of “battery on a peace officer with a weapon,” and received

21 a rule violation report (“RVR”), which resulted in “a SHU term of maximum 11 months,

22 and losing 150 days of good time credit that can’t be gotten back.” See id. at 3.

23 According to Plaintiff, “Alonzo d[id] all of this based on [Plaintiff’s] race as a[n]

24 African-American/Black person.” Id.

25 Following the incident, Plaintiff alleges that Defendants Alonzo, Dominguez,

26 Romero, Urbina, and Veliz, committed “civil conspiracy” and “fabricat[ed] evidence and

27 racially discriminat[ed]” against Plaintiff by falsely reporting that Plaintiff threw his cup

28 at Defendant Alonzo. See id. In support of this claim, Plaintiff cites a number of

1 allegedly inconsistent or false statements made by these Defendants in interviews or

2 reports after the incident. See id. at 3-6. First, Defendant Dominguez allegedly made

3 inconsistent statements in an interview about whether Plaintiff threw the cup at the

4 ground or at Defendant Alonzo. See id. at 4. Second, Defendant Romero allegedly

5 falsely stated that Plaintiff “los[t] control of himself as he threw his brown state issued

6 cup towards Lt. Mario Alonzo striking him on the right foot.” See id. This statement

7 contradicted one that Romero made to Plaintiff after the incident, when Romero allegedly

8 acknowledged that Plaintiff did not, in fact, hit Defendant Alonzo with the cup, and a

9 later statement Romero made claiming to not remember what happened on the date of the

10 alleged incident. See id. at 4-5. Third, Defendant Urbina allegedly made inconsistent

11 statements that Plaintiff threw the cup at Alonzo, that Plaintiff used his right hand to

12 throw the cup, and that he “‘did not see where the brown cup landed.’” See id. at 5.

13 Finally, Defendant Veliz allegedly falsely stated in an interview that Plaintiff threw the

14 cup at Defendant Alonzo, but “never wrote a report . . . in reference to [Plaintiff]

15 throwing a cup at all, let alone towards Lt. Mario Alonzo . . . .” See id. at 6. According

16 to Plaintiff, each of these Defendants’ actions were motivated by racism. See id. at 3-6.

17 Plaintiff’s First Amended Complaint does not contain any demand for relief, but

18 Plaintiff sues Defendants in their individual capacities. Accordingly, the Court liberally

19 construes his pleading as seeking damages.

20 C. Analysis

21 To state a claim under 42 U.S.C. Section 1983, a plaintiff must allege two essential

22 elements: (1) that a right secured by the Constitution or laws of the United States was

23 violated, and (2) that the alleged violation was committed by a person acting under the

24 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030,

25 1035-36 (9th Cir. 2015).

26 Plaintiff appears to allege that Defendants’ conduct violated his Fourteenth

27 Amendment rights to due process and equal protection. See Doc No. 2, at 7 (stating that

28 Plaintiff’s civil rights were violated by “racial discrimination/civil conspiracy.”).

1 Nevertheless, in the body of his First Amended Complaint, Plaintiff also invokes the

2 phrase “unusual punishment,” suggesting he may be asserting an Eighth Amendment

3 claim, and refers to actions by Defendants Alonzo and Dominguez that were disrespectful

4 to Plaintiff’s religious faith, possibly seeking to assert First Amendment claims. See id.

5 at 1, 3-4. Accordingly, the Court liberally construes Plaintiff’s First Amended Complaint

6 as attempting to assert claims for violations of the Fourteenth, Eighth, and First

7 Amendments.

8 1. Fourteenth Amendment – Due Process

9 As discussed, Plaintiff alleges that Defendants conspired together to fabricate

10 evidence supporting disciplinary charges against Plaintiff stemming from the incident

11 with Defendant Alonzo. See generally Doc. No. 10, at 3-6. As explained in the Court’s

12 Order dismissing Plaintiff’s initial Complaint, “[t]his claim is best analyzed under the

13 [due process clause of the] Fourteenth Amendment.” See Doc. No. 9, at 15.

14 The due process clause of the Fourteenth Amendment provides that “[n]o state

15 shall . . . deprive any person of life, liberty, or property, without due process of law.”

16 U.S. Const. amend. XIV, § 1. To state a claim for violations of procedural due process,

17 Plaintiff must allege “‘(1) a liberty or property interest protected by the Constitution; (2)

18 a deprivation of the interest by the government; [and] (3) lack of process.’” See Wright v.

19 Riveland, 219 F.3d 905, 913 (9th Cir. 2000) (quoting Portman v. Cnty. of Santa Clara,

20 995 F.2d 898, 904 (9th Cir. 1993)). Although a prisoner is entitled to procedural due

21 process protections in disciplinary proceedings, those protections “adhere only when the

22 disciplinary action implicates a protected liberty interest in some ‘unexpected [manner]’

23 or imposes an ‘atypical and significant hardship on the inmate in relation to the ordinary

24 incidents of prison life.’” Serrano v. Francis, 345 F.3d 1071, 1078 (9th Cir. 2003)

25 (quoting Sandin v. Connor, 515 U.S. 472, 484 (1995)).

26 Plaintiff’s procedural due process claims suffer from many of the same defects the

27 Court identified in its Order dismissing his initial Complaint. First, as numerous other

28 courts have concluded, “[t]he issuance of a false RVR, alone, does not state a claim under

1 section 1983.” See Murschel v. Paramo, No. 3:17-CV-1142 BTM (AGS), 2018 WL

2 539159, at *4 (S.D. Cal. Jan. 22, 2018) (citing Dawson v. Beard, No. 1:15-CV-1867

3 DLB, 2016 WL 1137029, at *5-6 (E.D. Cal. Mar. 23, 2016)); see also, e.g., Solomon v.

4 Meyer, No. 11-CV-2827 JST (PR), 2014 WL 294576, at *2 (N.D. Cal. Jan. 27, 2014)

5 (“[T]here is no due process right to be free from false disciplinary charges.”); Chavira v.

6 Rankin, No. C 11-5730 CW (PR), 2012 WL 5914913, at *1 (N.D. Cal. Nov. 26, 2012)

7 (“A prisoner has no constitutionally guaranteed immunity from being falsely or wrongly

8 accused of conduct which may result in the deprivation of a protected liberty interest.”

9 (citing Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989); Freeman v. Rideout, 808

10 F.2d 949, 951 (2d Cir. 1986))). Second, “[a]s long as a prisoner receives procedural due

11 process during his disciplinary hearing, a prisoner’s allegation of a fabricated prison

12 disciplinary charge fails to state a cognizable claim for relief under § 1983.” Harper v.

13 Costa, No. CIV S-07-2149 LKK DAD P, 2009 WL 1684599, at *2 (E.D. Cal. June 16,

14 2009) (collecting cases).

15 Plaintiff once again does not allege that he was denied any of the due process

16 protections to which he was entitled, for example, “the rights to call witnesses, to present

17 documentary evidence and to have a written statement by the fact-finder as to the

18 evidence relied upon and the reasons for the disciplinary action taken.” See Serrano, 345

19 F.3d at 1077 (citing Wolff v. McDonnell, 418 U.S. 539, 564-71 (1974)); see also Doc. No.

20 9, at 16. As a result, any procedural due process claims against Defendants must be

21 dismissed for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B)(ii); 28 U.S.C. §

22 1915A(b)(1).

23 To the extent Plaintiff alleges Defendants violated his due process rights through a

24 conspiracy, those claims also fail. To establish a conspiracy under Section 1983, Plaintiff

25 must allege “(1) the existence of an express or implied agreement among the defendant

26 officers to deprive him of his constitutional rights, and (2) an actual deprivation of those

27 rights resulting from that agreement.” See Avalos v. Baca, 596 F.3d 583, 592 (9th Cir.

28 2010) (quotation omitted). Aside from labeling each Defendants’ actions part of a “civil

1 conspiracy,” Plaintiff does not allege either an express or implied agreement among the

2 Defendants to do anything, let alone to violate his constitutional rights. See, e.g., Doc.

3 No. 10, at 3 (“Mario Alonzo commit[t]ed ‘civil conspiracy,’ by fabricating evidence and

4 racially discriminating, with the following persons: D. Dominguez, G. Romero III, M.

5 Urbina, and J. Veliz.”). Accordingly, any conspiracy claim against these Defendants is

6 dismissed for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b).

7 The Court finds, however, that the additional allegations in Plaintiff’s First

8 Amended Complaint are sufficient to state a due process claim premised on the Ninth

9 Circuit’s decision in Devereaux v. Abbey, 263 F.3d 1070 (9th Cir. 2001), that surpasses

10 the “low threshold” set for sua sponte screening. See Wilhelm, 680 F.3d at 1123; see also

11 Chappell v. Bess, No. 2:01-cv-01979-KJN P, 2012 WL 3276984, at *21-23 (E.D. Cal.

12 Aug. 9, 2012) (denying summary judgment on fabrication of evidence claims by prisoner

13 against prison officials that led to allegedly “unwarranted disciplinary proceedings and

14 criminal prosecution, and [plaintiff being] retained in administrative segregation for more

15 than two years . . . .”). In Devereaux, the Ninth Circuit held that “there is a clearly

16 established constitutional due process right not to be subjected to criminal charges on the

17 basis of false evidence that was deliberately fabricated by the government.” See

18 Devereaux, 263 F.3d at 1074-75.

19 “To prevail on a § 1983 claim of deliberate fabrication, a plaintiff must prove that

20 (1) the defendant official deliberately fabricated evidence and (2) the deliberate

21 fabrication caused the plaintiff’s deprivation of liberty.” See Spencer v. Peters, 857 F.3d

22 789, 798 (9th Cir. 2017). Plaintiff alleges that he received “a ‘felony’ charge” for the

23 February 11, 2020 incident in addition to other sanctions within the prison disciplinary

24 system. See Doc. No. 10, at 3; see also id. at 3-5 (asserting that Defendants Alonzo,

25 Dominguez, and Romero’s alleged fabrications of evidence caused Plaintiff to face a

26 felony charge). “[A] § 1983 plaintiff need not be convicted on the basis of the fabricated

27 evidence . . . being criminally charged is enough.” Caldwell v. City & Cnty. of San

28 Francisco, 889 F.3d 1104, 1115 (9th Cir. 2018) (citing Devereaux, 263 F.3d at 1074-75).

1 Although Plaintiff does not specifically allege that Defendants Urbina and Veliz’s alleged

2 fabrications of evidence caused him to face felony charges, the Court liberally construes

3 Plaintiff’s First Amended Complaint as stating claims sufficient to survive screening

4 against these Defendants on the same basis. See Doc. No. 10, at 5-6. Nevertheless, the

5 Court cautions Plaintiff that the sua sponte screening process is “cumulative of, not a

6 substitute for, any subsequent [motion to dismiss] that the defendant may choose to

7 bring.” See Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007).

8 2. Fourteenth Amendment – Equal Protection

9 Plaintiff further alleges that Defendants’ alleged actions constituted racial

10 discrimination. See Doc. No. 10, at 3-6. As the Court explained in its previous order,

11 these claims must be analyzed under the Fourteenth Amendment’s equal protection

12 clause, which “commands that no State shall ‘deny to any person within its jurisdiction

13 the equal protection of the laws,’ which is essentially a direction that all persons similarly

14 situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,

15 439 (1985); see also Doc. No. 9, at 11. To allege a claim of racial discrimination in

16 violation of the equal protection clause, Plaintiff must allege that Defendants “acted in a

17 discriminatory manner and that the discrimination was intentional.” FDIC v. Henderson,

18 940 F.2d 465, 471 (9th Cir. 1991) (citations omitted). “In order to state a § 1983 claim

19 based on a violation of the equal protection clause of the Fourteenth Amendment, a

20 plaintiff must establish that defendants acted with intentional discrimination against a

21 class of inmates which includes plaintiff.” Parker v. Kramer, No. CVF025117

22 AWIDLBP, 2005 WL 1343853, at *6 (E.D. Cal. Apr. 28, 2005) (citing Lowe v. City of

23 Monrovia, 775 F.2d 998, 1010 (9th Cir. 1985); Henderson, 940 F.2d at 471)).

24 Plaintiff’s racial discrimination claims must again be dismissed for the same reason

25 the Court cited in its Order dismissing his initial complaint: Plaintiff “has not alleged

26 sufficient ‘factual content that allows the court to draw the reasonable inference that

27 [Defendants are] liable for the misconduct alleged.’” See Doc. No. 9, at 11 (quoting

28 Iqbal, 556 U.S. at 678). Although Plaintiff repeatedly asserts that each Defendant

1 fabricated evidence and otherwise violated Plaintiff’s right “based on [Plaintiff’s] race as

2 a[n] African-American/Black person,” see, e.g., Doc. No. 10, at 5, these “‘naked

3 assertion[s]’ devoid of ‘further factual enhancement,” are too conclusory to allege

4 intentional racial discrimination on Defendants’ part. Iqbal, 556 U.S. at 678 (quoting

5 Twombly, 550 U.S. at 555, 557). Plaintiff fails to allege any facts suggesting that

6 Defendants acted in a discriminatory manner or that Plaintiff was treated differently from

7 any other inmate, let alone that any such difference in treatment was based on race. As a

8 result, Plaintiff’s claim of racial discrimination must be dismissed for failure to state a

9 claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2); 28 U.S.C.

10 § 1915A(b).

11 3. Eighth Amendment

12 Although Plaintiff does not expressly cite the Eighth Amendment in his First

13 Amended Complaint, he does assert that after the February 11, 2020 incident with

14 Defendant Alonzo, he was sent to “Ad-Seg to endure unusual punishment.” See Doc. No.

15 10, at 3. This conduct is insufficient to state a claim for violation of the Eighth

16 Amendment, which broadly prohibits cruel and unusual punishment. See generally U.S.

17 Const. Am. VII. “[A] prison official violates the Eighth Amendment only when two

18 requirements are met. First, the deprivation alleged must be, objectively, ‘sufficiently

19 serious,’ a prison official’s act or omission must result in the denial of ‘the minimum

20 civilized measure of life’s necessities . . . .’” Farmer v. Brennan, 511 U.S. 825, 834

21 (1994) (internal citations omitted) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991);

22 Rhodes v. Chapman, 452 U.S. 337, 346 (1981)). Second, “[t]o violate the Cruel and

23 Unusual Punishments Clause, a prison official must have a ‘sufficiently culpable state of

24 mind,’” and act with “‘deliberate indifference’ to inmate health or safety . . . .” Id.

25 (internal citations omitted) (quoting Wilson, 501 U.S. at 302-03). “[D]eliberate

26 indifference describes a state of mind more blameworthy than negligence.” Id.

27 Simply sending Plaintiff to administrative segregation for an unspecified period of

28 time following the incident to “endure unusual punishment” that is not described in the

1 First Amended Complaint falls far short of alleging an “objectively, sufficiently serious”

2 act denying “the minimum civilized measure of life’s necessities . . . ,” that would violate

3 the Eighth Amendment. Farmer, 511 U.S. at 834 (internal quotation marks and citations

4 omitted). Additionally, Plaintiff does not allege deliberate indifference to his health or

5 safety. As a result, any Eighth Amendment claims are dismissed for failure to state a

6 claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2); 28 U.S.C.

7 § 1915A(b).

8 4. First Amendment

9 Finally, Plaintiff alleges two acts implicating his Rastafarian religious faith. First,

10 while searching Plaintiff, Defendant Alonzo allegedly stole Plaintiff’s “religious necklace

11 off the ground and . . . then w[ore] it around his own neck.” See Doc. No. 10, at 1, 3.

12 Second, while Plaintiff was in a holding cage, Defendant Dominguez allegedly mocked

13 Plaintiff’s faith by “blasting ‘Bob Marley’ music from his office computer” and laughing

14 at Plaintiff. See id. at 3-4. These incidents, unprofessional as they might be, do not state

15 claims for violations of Plaintiff’s First Amendment rights.

16 The First Amendment bars the government from, among other things, “making a

17 law prohibiting the free exercise of religion.” Hartmann v. Cal. Dep’t Corrs. & Rehab.,

18 707 F.3d 1114, 1122 (9th Cir. 2013). Although Plaintiff does not specifically invoke it,

19 the Court liberally construes Plaintiff’s Complaint as attempting to state claims under

20 both the First Amendment and the Religious Land Use and Institutionalized Persons Act

21 (RLUIPA). See 42 U.S.C. § 2000cc-1(a); see also Alvarez v. Hill, 518 F.3d 1152, 1157-

22 58 (9th Cir. 2008) (noting that a prisoner need not identify RLUIPA as a cause of action

23 in order to state a claim based upon that law). Section 3 of RLUIPA provides that “[n]o

24 government shall impose a substantial burden on the religious exercise of a person

25 residing in or confined to an institution . . . even if the burden results from a rule of

26 general applicability” absent a showing that the burden imposed is “in furtherance of a

27 compelling government interest” and “is the least restrictive means of furthering . . . that

28 interest.” 42 U.S.C. § 2000cc-1(a).

1 Plaintiff fails to allege a claim under either the First Amendment or RLUIPA

2 because he has not alleged how, if at all, “the government action in question substantially

3 burdens [Plaintiff’s] practice of [his] religion.” Jones v. Williams, 791 F.3d 1023, 1031-

4 32 (9th Cir. 2015). The acts Plaintiff describes do not “have a tendency to coerce

5 individuals into acting contrary to their religious beliefs or exert substantial pressure on

6 [Plaintiff] to modify his behavior and to violate his beliefs.” See id. (internal citations,

7 quotation marks, and alterations omitted); see also Hartmann, 707 F.3d at 1124-25

8 (explained that a “‘substantial burden’” sufficient to state a RLUIPA claim is a

9 “‘significantly great restriction or onus upon [religious] exercise,’” and “[i]n the context

10 of a prisoner’s constitutional challenge to institutional policies, [the Ninth Circuit] has

11 held that a substantial burden occurs ‘where the state . . . denies [and important benefit]

12 because of conduct mandated by religious belief, thereby putting substantial pressure on

13 an adherent to modify his behavior and to violate his beliefs.’” (quoting San Jose

14 Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1039 (9th Cir. 2004); Warsoldier

15 v. Woodford, 418 F.3d 989, 995 (9th Cir. 2005))). Plaintiff has not alleged how being

16 deprived of his necklace1 or being mocked for his faith placed a substantial burden on his

17 religious exercise, or how, if at all, the conduct alleged “prevented him from fulfilling the

18 commandments” of Rastafarianism. See Wolcott v. Bd. of Rabbis, 738 F. App’x 538, 539

19 (9th Cir. 2018).

20 As a result, Plaintiff’s First Amendment and RLUIPA claims are dismissed for

21 failure to state a claim upon which relief can be granted. See 28 U.S.C. § 1915(e)(2); 28

22 U.S.C. § 1915A(b).

23 5. Official Capacity Claims

24 Plaintiff identifies each Defendant as being sued in both their individual and

25 official capacities. See Doc. No. 10, at 2. As mentioned previously, although Plaintiff’s

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1 Additionally, and for the reasons cited in the Court’s prior order, Plaintiff cannot state a separate claim

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1 First Amended Complaint contains no demand for relief, the Court liberally construes his

2 pleading as seeking damages.

3 To the extent Plaintiff seeks damages, he may not do so in a suit against

4 Defendants in their official capacities. “[A] suit against a state official in his or her

5 official capacity is not a suit against the official but rather is a suit against the official’s

6 office.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). As a result,

7 Plaintiff’s official capacity claims must be dismissed sua sponte for failure to state a

8 claim because: (1) there is no conduct by a “person” as required for a claim under Section

9 1983, and (2) the Eleventh Amendment bars suits for damages against state officials sued

10 in their official capacity absent an express waiver of immunity by Congress or the state,

11 neither of which is present under these circumstances. See id.; Kentucky v. Graham, 473

12 U.S. 159, 169 (1985); see also 28 U.S.C. § 1915(e)(2)(B)(ii); 28 U.S.C. § 1915A(b)(1).

13 D. Leave to Amend

14 Because Plaintiff has already been provided a short and plain statement of his

15 pleading deficiencies, as well as an opportunity to amend those claims to no avail, the

16 Court finds that granting further leave to amend on the claims dismissed in this Order

17 would be futile. See Gonzalez v. Planned Parenthood, 759 F.3d 1112, 1116 (9th Cir.

18 2014) (“‘Futility of amendment can, by itself, justify the denial of . . . leave to amend.’”)

19 (quoting Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995)); Zucco Partners, LLC v.

20 Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (“[W]here the plaintiff has

21 previously been granted leave to amend and has subsequently failed to add the requisite

22 particularity to its claims, [t]he district court’s discretion to deny leave to amend is

23 particularly broad.” (internal quotation marks omitted) (second alteration in original)).

24 II. Conclusion and Orders

25 For the reasons discussed, the Court DIRECTS the Clerk of the Court to serve a

26 copy of this Order on Kathleen Allison, Secretary, California Department of Corrections

27 and Rehabilitation, P.O. Box 942883, Sacramento, California, 94283-0001.

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1 The Court DISMISSES Plaintiff’s claims against Defendants in their official

2 capacities and his claims under the First Amendment, the Eighth Amendment, the

3 Fourteenth Amendment’s equal protection clause, and his conspiracy and procedural

4 claims under the due process clause of the Fourteenth Amendment, without prejudice sua

5 sponte for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C.

6 Sections 1915(e)(2)(B)(ii) and 1915A(b)(1) and without further leave to amend. As such,

7 the only remaining claim is Plaintiff’s Fourteenth Amendment due process claim based

8 on the purported fabrication of evidence by Defendants Alonzo, Dominguez, Romero,

9 Urbina, and Veliz.

10 Accordingly, the Court DIRECTS the Clerk to terminate as parties to this action

11 Defendants Soriano, Carranza, Madden, Galeana, Briceno, Livsey, Ruiz, Johnson,

12 Blackstock, Bustos-Gutierrez, and Parkhill, all of whom Plaintiff chose to exclude from

13 his First Amended Complaint. See Hal Roach Studios, Inc. v. Richard Feiner & Co.,

14 Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the

15 original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that

16 claims dismissed with leave to amend which are not re-alleged in an amended pleading

17 may be “considered waived if not repled.”).

18 The Court further DIRECTS the Clerk to issue a summons as to Plaintiff’s First

19 Amended Complaint, Doc. No. 10, upon Defendants Alonzo, Dominguez, Romero,

20 Urbina, and Veliz and forward it to Plaintiff along with a blank U.S. Marshal Form 285.

21 In addition, the Clerk will provide Plaintiff with a certified copy of this Order, a certified

22 copy of his Complaint, and the summons so that he may serve Defendants. Upon receipt

23 of this “IFP Package,” Plaintiff must complete the Form 285 as completely and

24 accurately as possible, include an address where Defendants may be served, see S.D. Cal.

25 Civ. L.R. 4.1.c, and return it to the United States Marshal according to the instructions

26 the Clerk provides in the letter accompanying his IFP package.

27 The Court ORDERS the U.S. Marshal to serve a copy of the Complaint and

28 summons upon Defendants as directed by Plaintiff on the USM Form 285 provided to

1 All costs of that service will be advanced by the United States. See 28 U.S.C. §

2 || 1915(d); Fed. R. Civ. P. 4(c)(3).

3 The Court further ORDERS Defendants, once served, to reply to Plaintiff’ □

4 ||Complaint within the time provided by the applicable provisions of Federal Rule of Civil

5 || Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be

6 || permitted to “waive the right to reply to any action brought by a prisoner confined in any

7 prison, or other correctional facility under section 1983,” once the Court has

8 ||conducted its sua sponte screening pursuant to 28 U.S.C. Sections 1915(e)(2) and

9 || 1915A(b), and thus, has made a preliminary determination based on the face on the

10 || pleading alone that Plaintiff has a “reasonable opportunity to prevail on the merits,”

11 || defendant is required to respond).

12 Finally, the Court ORDERS Plaintiff, after service has been effectuated by the U.S.

13 || Marshal, to serve upon Defendants, or, if appearance has been entered by counsel, upon

14 || Defendants’ counsel, a copy of every further pleading, motion, or other document

15 submitted for the Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must

16 ||include with every original document he seeks to file with the Clerk of the Court, a

17 || certificate stating the manner in which a true and correct copy of that document has been

18 || was served on the Defendants or Defendants’ counsel, and the date of that service. See

19 ||S.D. Cal. Civ. L.R. 5.2. Any document received by the Court which has not been

20 || properly filed with the Clerk, or which fails to include a Certificate of Service upon

21 || Defendants, may be disregarded.

22 IT IS SO ORDERED.

23 ||DATE: December 21, 2020 : Vat ak La □ Ls

HON. MICHAEL M. ANELLO

United States District Judge

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