Opinion

Hawkins v. Pollard

Court
District Court, S.D. California
Filed
Sep 8, 2022
Cited by
0 cases
Authority
More cited than 19.2%

“A district court 5 should not dismiss a pro se complaint without leave to amend unless ‘it is absolutely clear 6 that the deficiencies of the complaint could not be cured by amendment.’”

How later courts described this case

  • “A district court 5 should not dismiss a pro se complaint without leave to amend unless ‘it is absolutely clear 6 that the deficiencies of the complaint could not be cured by amendment.’”
  • “The court may take judicial notice of the existence of unrelated court documents, 8 although it will not take judicial notice of such documents for the truth of the matter 9 asserted therein.”
  • Courts may take judicial notice of their own records, and may also take 5 judicial notice of other court proceedings if they “directly relate to matters before the 6 court”
  • concluding prisoner’s “claim 17 that he might be transferred back to Calipatria some time in the future [was] ‘too 18 speculative’ to prevent mootness”

Written by the judges who cited it.

The opinion

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9 UNITED STATES DISTRICT COURT

10 SOUTHERN DISTRICT OF CALIFORNIA

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12 JEFF HAWKINS, Case No.: 21-cv-01328-JO-JLB

PFN #AQE810,

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REPORT AND

Plaintiff,

14 RECOMMENDATION GRANTING

v.

DEFENDANTS’ MOTION TO

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DISMISS

MARCUS POLLARD, Warden; B.D.

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PHILLIPS, Associate Warden; D. LEWIS,

[ECF No. 17]

17 Associate Warden; GARCIA, Facility

Captain,

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Defendants.

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23 This Report and Recommendation is submitted to United States District Judge

24 Jinsook Ohta pursuant to 28 U.S.C. § 636(b) and Civil Local Rule 72.3 of the Local Rules

25 of Practice for the United States District Court for the Southern District of California.

26 On July 23, 2021, Plaintiff Jeff Hawkins (“Plaintiff”), a state prisoner proceeding

27 pro se and in forma pauperis, filed his Complaint pursuant to 42 U.S.C. § 1983 against

28 Warden Marcus Pollard, Associate Wardens B.D. Phillips and D. Lewis, and Facility

1 Captain Garcia (collectively, “Defendants”). (ECF No. 1.) Now pending before the Court

2 and ready for decision is Defendants’ Motion to Dismiss. (ECF No. 17.) Plaintiff filed an

3 opposition to Defendants’ Motion to Dismiss (ECF No. 20), and Defendants filed a reply

4 (ECF No. 22). After a thorough review of Plaintiff’s Complaint, the parties’ motion and

5 opposition papers, and all supporting documents, and for the reasons discussed below, the

6 Court RECOMMENDS that the District Court GRANT Defendants’ Motion to Dismiss

7 (ECF No. 17), but grant Plaintiff leave to amend his Complaint.

8 I. BACKGROUND

9 Plaintiff alleges Defendants acted with deliberate indifference to his health and

10 safety in violation of the Eighth Amendment based on their failure to protect him from

11 contracting COVID-19 while he was incarcerated at Richard J. Donovan Correctional

12 Facility (“RJD”).2 (ECF No. 1 at 3–5.)

13 Specifically, Plaintiff claims he suffers from asthma and “chronic pulmonary lung

14 disease” which put him at an increased risk of serious disease or death if he contracted

15 COVID-19. (Id. at 3.) Plaintiff was infected with COVID-19 on December 8, 2020. (Id.

16 at 3, 35.) He contends Defendants provided inadequate protections from exposure to the

17 virus. (Id. at 3.) For example, Plaintiff claims Defendants issued poor quality face masks

18 and placed inmates that were infected with COVID-19 in housing units with non-infected

19 inmates, in violation of “the current public health orders to practice six feet social

20 distanc[ing].” (Id.) Defendants allowed inmates “to use showers [and] phones which were

21 also infected.” (Id.) Plaintiff observed RJD staff wearing their masks improperly. (Id.)

22 Defendants allowed inmates who tested positive for COVID-19 to serve food at the prison.

23 (Id. at 4.) RJD staff kept inmates locked in their cells for 24 hours a day with “no yard.”

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26 1 All page citations in this Report and Recommendation refer to those automatically

27 generated by the CM/ECF system.

2 Plaintiff is currently confined at Santa Rita County Jail (“SRCJ”). (See ECF Nos. 7;

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1 (Id.) Plaintiff had no access to disinfectant between December 5, 2020, and December 8,

2 2020. (Id.) When he finally received disinfectant, it smelled like urine and was ineffective

3 because it was watered down. (Id.) Cleaning supplies were “not strong enough to keep

4 people from contracting COVID-19.” (ECF No. 20 at 5.) Defendants “failed to provide

5 proper [personal protective equipment] until N-95 [masks] were issued.” (ECF No. 1 at

6 5.) “[L]iving conditions in [Plaintiff’s] cell were terrible although [he] kept [his] cell clean

7 with what cleaning supplies [Defendants] provided. (ECF No. 20 at 5.) Defendants “were

8 aware of what was going on . . . they just did nothing to prevent what was coming until

9 after it was there.” (Id.) When Plaintiff contracted COVID-19, Defendants left Plaintiff

10 “in the cell most of the time for dead with no medical attention whatsoever.” (ECF No. 1

11 at 3.)

12 Plaintiff argues these actions caused the COVID-19 outbreak in the housing unit

13 where Plaintiff was infected. (Id.) Plaintiff’s symptoms included “chest pain, bone aches,

14 [diarrhea], queasy most [recent], has chronic pulmonary lung disease, couldn’t smell or

15 eat. . . .” (Id.) Plaintiff states he filed two individual 602 inmate grievances: the first

16 grievance requested “release to home for high risk” due to COVID-19, and the second was

17 filed as an emergency grievance because he wanted an answer to his first grievance sooner.

18 (Id. at 3, 8–11.) Plaintiff states that neither grievance received a response. (Id. at 3.)

19 Plaintiff seeks “the maximum allowable amount” of monetary and punitive damages

20 for Defendants’ failure to protect him from contracting COVID-19. (Id. at 7.) Plaintiff

21 also seeks an injunction because he “would like the staff to stop being so forceful and be

22 more [lenient] to the need[s] of inmates. . . .” (Id.)

23 II. REQUEST FOR JUDICIAL NOTICE

24 As a preliminary matter, Defendants ask the Court to take judicial notice of three

25 exhibits submitted in support of their Motion to Dismiss:

26 Exhibit A – U.S. District Court, Sothern District (San Diego), Civil Docket

for Case No. 3:21-cv-01328-JO-JLB;

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1 Exhibit B – Order Appointing Receiver, Plata v. Newsom, Case No. 01-CV-

01351-JST (N.D. Cal. Feb. 14, 2006) (ECF No. 473); and

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3 Exhibit C – Relevant portions of a certified transcript of the video recording

of Senate Public Safety Committee Senate Hearing on COVID-19 in

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California State Prisons on July 1, 2020, published at

5 https://www.senate.ca.gov/media/senate-publicsafety-committee-

20200701/video (last visited Dec. 14, 2021).

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7 (ECF No. 17-1 at 1.)

8 “Generally, district courts may not consider material outside the pleadings when

9 assessing the sufficiency of a complaint. . . .” Khoja v. Orexigen Therapeutics, Inc., 899

10 F.3d 988, 998 (9th Cir. 2018) (citing Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th

11 Cir. 2001), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d

12 1119, 1125–26 (9th Cir. 2002)); see also Fed. R. Civ. P. 12(d) (explaining that if the court

13 considers other materials, a motion brought pursuant to Rule 12(b)(6) or (c) is converted

14 into a motion for summary judgment under Rule 56). There are two exceptions to this

15 general rule. The Court may, without converting the motion to dismiss to one for summary

16 judgment, “take judicial notice of matters of public record,” Khoja, 899 F.3d at 999

17 (quoting Lee, 250 F.3d at 689), and of “documents whose contents are alleged in a

18 complaint and whose authenticity no party questions, but which are not physically attached

19 to the pleading,” Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other

20 grounds by Galbraith, 307 F.3d at 1125–26; see also Fed. R. Evid. 201.

21 Judicial notice under Federal Rule of Evidence 201 permits a court to take notice of

22 undisputed facts in matters of public record. See Khoja, 899 F.3d at 999. A court may not

23 take judicial notice of disputed facts contained in such public records. Id. A judicially

24 noticed fact must be one not subject to reasonable dispute in that it is either (1) generally

25 known within the territorial jurisdiction of the trial court or (2) capable of accurate and

26 ready determination by resort to sources whose accuracy cannot reasonably be questioned.

27 See Fed. R. Evid. 201(b).

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1 The Court finds Exhibits A, B, and C proper for judicial notice, as they are matters

2 of public record. See Jones v. Pollard, No. 21-cv-162-MMA-RBM, 2022 WL 706926, at

3 *4 (S.D. Cal. Mar. 9, 2022) (citing Hayes v. Woodford, 444 F. Supp. 2d 1127, 1136–37

4 (S.D. Cal. 2006) (Courts may take judicial notice of their own records, and may also take

5 judicial notice of other court proceedings if they “directly relate to matters before the

6 court”); In re Bare Escentuals, Inc. Sec. Litig., 745 F. Supp. 2d 1052, 1067 (N.D. Cal.

7 2010) (“The court may take judicial notice of the existence of unrelated court documents,

8 although it will not take judicial notice of such documents for the truth of the matter

9 asserted therein.”); Lopez v. Bank of Am., N.A., 505 F. Supp. 3d 961, 970–71 (N.D. Cal.

10 2020) (finding that publicly available congressional records, including transcripts of

11 congressional hearings, are proper for judicial notice)). However, any potentially disputed

12 facts contained within Exhibits B and C are not appropriate for judicial notice. “Defendants

13 appear to want this Court to take as true factual representations made within [the proffered

14 document] to draw related inferences, but the Court cannot do so because they go to the

15 heart of the Plaintiff’s allegations.” Harris v. Allison, No. 20-cv-09393-CRB, 2022 WL

16 2232525, at *3 (N.D. Cal. May 18, 2022) (citing Khoja, 899 F.3d at 999). The Court will

17 take judicial notice of the fact that a receiver was appointed to oversee the operation of the

18 medical system of the California Department of Corrections and Rehabilitation

19 (“CDCR”),3 but the Court will not take judicial notice of the manner in which that oversight

20 is conducted in practice or the relative liability of CDCR personnel. Therefore, the Court

21 GRANTS Defendants’ request as qualified by the Court. Accordingly, the Court takes

22 judicial notice of Exhibits A, B, and C referenced above, but not the potentially disputed

23 facts contained within Exhibits B and C.

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3 This is not disputed by Plaintiff, who acknowledges the same in his Opposition.

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1 III. LEGAL STANDARDS

2 A. Motion to Dismiss for Failure to State a Claim

3 Federal Rule of Civil Procedure 8 requires that a complaint include a “short and plain

4 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

5 A Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be

6 granted tests the legal sufficiency of the claims in the complaint. See Bell Atl. Corp. v.

7 Twombly, 550 U.S. 544, 555 (2007). In ruling on a Rule 12(b)(6) motion to dismiss, the

8 court does not look at whether the plaintiff will “ultimately prevail but whether the

9 [plaintiff] is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S.

10 232, 236 (1974). The court may consider allegations contained in the pleadings, exhibits

11 attached to the complaint, and documents and matters properly subject to judicial notice.

12 Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007); Roth

13 v. Garcia Marquez, 942 F.2d 617, 625 n.1 (9th Cir. 1991).

14 Ashcroft v. Iqbal sets forth a “two-pronged approach” for evaluating the sufficiency

15 of a complaint, whereby a court may first identify legal conclusions in the complaint not

16 entitled to an assumption of truth, and then analyze the remaining well-pled factual

17 allegations to determine whether the complaint states a plausible claim for relief. 556 U.S.

18 662, 678–79 (2009). “Threadbare recitals of the elements of a cause of action, supported

19 by mere conclusory statements” are not entitled to an assumption of truth. Id. “[D]etailed

20 factual allegations” are not required, but a complaint must contain “more than an

21 unadorned, the defendant-unlawfully-harmed-me accusation.” Id. Thus, “[w]hile legal

22 conclusions can provide the framework of a complaint, they must be supported by factual

23 allegations.” Id. at 679. At the second prong, the court will analyze those well-pled facts

24 that are entitled to the assumption of truth. Id. at 678. “A complaint must contain sufficient

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

26 at 678 (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the

27 plaintiff pleads factual content that allows the court to draw the reasonable inference that

28 the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).

1 The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal,

2 556 U.S. at 678–79; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

3 “In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content,

4 and reasonable inferences from that content, must be plausibly suggestive of a claim

5 entitling the plaintiff to relief.” Moss, 572 F.3d at 969 (quotations omitted).

6 B. Standards Applicable to Pro Se Litigants in Civil Rights Actions

7 With respect to an inmate who proceeds pro se, his factual allegations, “however

8 inartfully pleaded,” must be held “to less stringent standards than formal pleadings drafted

9 by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972); see also Erickson v. Pardus,

10 551 U.S. 89, 94 (2007) (reaffirming that this standard applies to pro se pleadings post-

11 Twombly). Thus, where a plaintiff appears pro se in a civil rights case, the Court must

12 construe the pleadings liberally and afford plaintiff any benefit of the doubt. Hebbe v.

13 Pliler, 627 F.3d 338, 342 (9th Cir. 2010). However, in giving liberal interpretation to a

14 pro se civil rights complaint, courts may not “supply essential elements of the claim that

15 were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268

16 (9th Cir. 1982). “The plaintiff must allege with at least some degree of particularity overt

17 acts which defendants engaged in that support the plaintiff’s claim.” Jones v. Cmty.

18 Redevelopment Agency of Los Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (internal

19 quotation omitted).

20 Before dismissing a pro se civil rights complaint for failure to state a claim, the

21 plaintiff should be given a statement of the complaint’s deficiencies and an opportunity to

22 cure. Karim–Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 624–25 (9th Cir. 1988).

23 Only if it is absolutely clear that the deficiencies cannot be cured by amendment should

24 the complaint be dismissed without leave to amend. Id.; see also James v. Giles, 221 F.3d

25 1074, 1077 (9th Cir. 2000).

26 IV. DISCUSSION

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Defendants advance three arguments in seeking to dismiss Plaintiff’s Complaint.

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1 violation because his Complaint is silent “as to how these Defendants failed to protect

2 Plaintiff from exposure and infection” and “about whether Defendants knew that Plaintiff

3 was at higher risk because he suffered from asthma and chronic pulmonary lung disease.”

4 (ECF No. 17 at 13–17.) Second, Defendants argue that they are entitled to qualified

5 immunity because Plaintiff cannot show they violated any “clearly established right to be

6 free from all COVID-19 exposure and infection.” (Id. at 18–20.) Finally, Defendants

7 argue Plaintiff’s demand for injunctive relief must be dismissed as moot because he is no

8 longer in custody at RJD. (Id. at 20–22.) For the reasons stated below, the Court agrees

9 that Plaintiff’s Complaint fails to allege facts sufficient to support a plausible Eighth

10 Amendment claim for relief as to any of the named Defendants.

11 Because Plaintiff is proceeding pro se in this civil rights case, the Court has a duty

12 “to construe the pleadings liberally and to afford [Plaintiff] the benefit of any doubt.”

13 Hebbe, 627 F.3d at 342 (quoting Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)

14 (en banc)). Although Plaintiff separates his Complaint into three counts, the gravamen of

15 his claims center on Defendants’ failure to protect him from contracting COVID-19 and

16 their alleged deliberate indifference to his health and safety.4

17 A. Failure to State a Claim

18 1. Applicable Law

19 The Eighth Amendment, which applies to the states through the Due Process Clause

20 of the Fourteenth Amendment, prohibits the infliction of “cruel and unusual punishments”

21 on those convicted of crimes. Wilson v. Seiter, 501 U.S. 294, 296–97 (1991). Conditions

22 of confinement may, consistent with the Constitution, be restrictive and harsh. See Rhodes

23 v. Chapman, 452 U.S. 337, 347 (1981). The Eighth Amendment requires, however, that

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4 Although Plaintiff mentions “dental medical transfer” (which the Court construes as

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“denial [of] medical transfer”) (see ECF No. 1 at 4), he alleges no facts related to this

27 complaint. The Court cannot find that Plaintiff has satisfied the pleading requirements of

Rule 8 where a claim is not substantively addressed with any factual allegations in the body

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1 prison officials ensure that inmates receive adequate food, clothing, shelter, and medical

2 care. Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005) (citations omitted).

3 A plaintiff who challenges conditions of confinement must essentially make two

4 showings to demonstrate a violation of the Eighth Amendment. Hearns, 413 F.3d at 1042.

5 First, the plaintiff must “make an objective showing that the deprivation was ‘sufficiently

6 serious’ to form the basis for an Eighth Amendment violation.” Id. (quoting Wilson, 501

7 U.S. at 298). Second, the plaintiff must make a subjective showing that the prison officials

8 at issue acted “with a sufficiently culpable state of mind.” Id. A plaintiff must show that

9 the prison officials at issue had actual knowledge of plaintiff’s basic human needs and

10 deliberately refused to meet those needs. Id. Finally, a plaintiff must also demonstrate that

11 the prison officials at issue caused the deprivation about which he complains. See Johnson

12 v. Duffy, 588 F.2d 740, 743–44 (9th Cir. 1978).

13 Where, like here, a plaintiff seeks to hold individual defendants personally liable for

14 damages, the causation inquiry between the deliberate indifference and the Eighth

15 Amendment deprivation requires a very individualized approach which accounts for the

16 duties, discretion, and means of each defendant. Sweet v. Lucine, 2002 WL 31855365, at

17 *4 (N.D. Cal. 2002), aff’d, 76 Fed. Appx. 133 (9th Cir. 2003) (citing Leer v. Murphy, 844

18 F.2d 628, 633 (1988)). The prisoner must set forth specific facts as to each individual

19 defendant’s deliberate indifference. Id. (citing Leer, 844 F.2d at 633–34). There must be

20 an affirmative link between a defendant’s actions and the claimed deprivation. See Rizzo

21 v. Goode, 423 U.S. 362 (1976).

22 2. Analysis

23 Among other things, Plaintiff alleges that inmates that were infected with COVID-

24 19 were placed in housing units with non-infected inmates (ECF No. 1 at 3), and that

25 inmates who tested positive for COVID-19 served food to non-infected inmates at the

26 prison. (Id. at 4.) “[T]here is no question that an inmate can face a substantial risk of

27 serious harm in prison from COVID-19 if a prison does not take adequate measures to

28 counter the spread of the virus. Courts have long recognized that conditions posing an

1 elevated chance of exposure to an infectious disease can pose a substantial risk of serious

2 harm.” Chunn v. Edge, 465 F. Supp. 3d 168, 200 (E.D.N.Y 2020). While Plaintiff’s

3 allegations lack precision—such as whether any infected inmates were actually housed

4 with Plaintiff himself or served Plaintiff his food—construing these and other allegations

5 in Plaintiff’s favor, they are sufficient to plead an objective risk of substantial harm. See,

6 e.g., Sanford v. Eaton, No. 20-cv-00792-BAM (PC), 2021 WL 1172911, at *7 (E.D. Cal.

7 Mar. 29, 2021) (“The transmissibility of the COVID-19 virus in conjunction with

8 Plaintiff’s living conditions, which he alleges were overcrowded and poorly ventilated, are

9 sufficient to satisfy the objective prong, i.e., that Plaintiff was ‘incarcerated under

10 conditions posing a substantial risk of serious harm.’”).

11 However, there are no factual allegations which plausibly allege that these individual

12 Defendants had actual knowledge of Plaintiff’s basic human needs and deliberately refused

13 to meet those needs. See Williams v. Pollard, No. 21-cv-0055-CAB-BGS, 2022 WL

14 184552, at *10–11 (S.D. Cal. Jan. 19, 2022) (dismissing individual defendants where the

15 plaintiff failed to include factual allegations which showed that they “actually drew an

16 inference that [p]laintiff faced a substantial risk to his health and safety and were

17 deliberately indifferent to that risk.”) In fact, other than in the “Parties” section of the

18 Complaint form where the Defendants are identified by name and title (ECF No. 1 at 2),

19 none of the Defendants is mentioned individually again in the entire Complaint. All

20 conditions and circumstances complained of are ascribed in conclusory and general fashion

21 to “the Defendants.” The pleading standard required to overcome a Rule 12(b)(6) motion

22 to dismiss “demands more than an unadorned, the-defendant-unlawfully-harmed-me

23 accusation.” Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. “A pleading that

24 offers ‘labels and conclusions’ or ‘a formalistic recitation of the elements of a cause of

25 action’” or “tenders ‘naked assertion(s)’ devoid of ‘further factual enhancement,’” does not

26 survive a Rule 12(b)(6) motion to dismiss. Iqbal, 556 U.S. at 678, quoting Twombly, 550

27 U.S. at 555.

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1 Accordingly, because Plaintiff has failed to allege deliberate indifference by

2 Defendants, he has failed to plead a cognizable Eighth Amendment claim. Therefore, the

3 Court RECOMMENDS that Defendants’ Motion to Dismiss be GRANTED with leave

4 to amend.5 See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court

5 should not dismiss a pro se complaint without leave to amend unless ‘it is absolutely clear

6 that the deficiencies of the complaint could not be cured by amendment.’”), quoting Akhtar

7 v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012).

8 B. Injunctive Relief

9 1. Applicable Law

10 Federal courts are courts of limited jurisdiction, and as a preliminary matter, the

11 court must have before it an actual case or controversy. City of Los Angeles v. Lyons, 461

12 U.S. 95, 102 (1983); Valley Forge Christian Coll. v. Ams. United for Separation of Church

13 and State, Inc., 454 U.S. 464, 471 (1982). If a court does not have an actual case or

14 controversy before it, it has no power to hear the matter in question. Lyons, 461 U.S. at

15 102. In the context of prisoner civil rights litigation, if a prisoner challenges his conditions

16 of confinement and seeks injunctive relief, transfer to another prison generally renders the

17 request for injunctive relief moot absent some evidence of an expectation of being

18 transferred back. Andrews v. Cervantes, 493 F.3d 1047, 1053 n. 5 (9th Cir. 2007).

19 2. Analysis

20 As articulated by the Ninth Circuit in Wiggins, claims for non-monetary relief

21 brought under 42 U.S.C. § 1983 are moot if the prisoner-plaintiff is no longer subject to

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24 5 In light of the foregoing, the Court does not reach Defendants’ additional arguments

25 related to qualified immunity. See Saucier v. Katz, 533 U.S. 194, 201 (2001) (“If no

constitutional right would have been violated were the allegations established, there is no

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necessity for further inquiries concerning qualified immunity.”); County of Sacramento v.

27 Lewis, 523 U.S. 833, 841 n.5 (1998) (“[T]he better approach to resolving cases in which

the defense of qualified immunity is raised is to determine first whether the plaintiff has

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1 the alleged illegal conduct. Wiggins v. Rushen, 760 F.2d 1009 (9th Cir. 1985). Here,

2 Plaintiff’s claim for injunctive relief is subject to dismissal pursuant to this holding. In

3 Wiggins, a prisoner brought an action under 42 U.S.C. § 1983 claiming that the access to

4 the law library at California Training Facility at Soledad was unconstitutionally inadequate.

5 Id. at 1010. While the case was pending, the prisoner was transferred to another prison.

6 Id. Defendants then filed a motion to dismiss the case for mootness, which was denied by

7 the district court. Id. The Ninth Circuit reversed, holding that since the prisoner had been

8 transferred and was no longer subject to the illegal activity, his complaint for an injunction

9 was moot. Id. Similarly, Plaintiff here has been transferred from the custody of RJD to

10 the custody of SRCJ and is no longer subject to any alleged illegal conduct at RJD—such

11 as the prison’s staff being too “forceful.” (ECF Nos. 1 at 7; 7; 17-2 at 2 ⁋ 4.)

12 Because there is neither a reasonable expectation nor demonstrated probability that

13 Plaintiff will return to the custody of RJD, his request for non-monetary relief is moot. See

14 Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991) (per curiam) (concluding prisoner’s

15 claims for injunctive relief were moot because prisoner was transferred to a different

16 facility); Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995) (concluding prisoner’s “claim

17 that he might be transferred back to Calipatria some time in the future [was] ‘too

18 speculative’ to prevent mootness”). Accordingly, the Court recommends that Plaintiff’s

19 claim for injunctive relief be dismissed as moot without leave to amend, so long as he is

20 not in RJD custody.

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V. CONCLUSION

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For the reasons stated above, the Court RECOMMENDS that Defendants’ Motion

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to Dismiss (ECF No. 17) be GRANTED. However, because it is not clear that the

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Complaint’s deficiencies cannot be cured by amendment, the Court recommends that

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Plaintiff’s Eighth Amendment claim against Defendants be dismissed without prejudice

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and with leave to amend.

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IT IS ORDERED that no later than October 4, 2022, any party to this action may

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1 || be captioned “Objections to Report and Recommendation.”

2 IT IS FURTHER ORDERED that any reply to the objections shall be filed with

3 Court and served on all parties no later than October 14, 2022.

4 The parties are advised that failure to file objections within the specified time may

5 || waive the right to raise those objections on appeal of the Court’s order. Turner v. Duncan,

6 F.3d 449, 455 (9th Cir 1998); Martinez v. Yist, 951 F.2d 1153, 1157 (9th Cir 1991).

7 IT IS SO ORDERED.

8 Dated: September 7, 2022 -

n. Jill L. Burkhardt

10 ited States Magistrate Judge

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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