addressing First Amendment retaliation claim in 28 | /// 14 1 || summary judgment context
How later courts described this case
- addressing First Amendment retaliation claim in 28 | /// 14 1 || summary judgment context
- court may dismiss complaint 28 || with prejudice for violation of Rule 8
- ‘I]t trivializes the [E]ighth [A ]mendment to 9 || believe a threat constitutes a constitutional wrong.”
- magistrate judges can 15 dismiss complaints with leave to amend; dismissal of complaint with leave to amend is non-dispositive matter
Written by the judges who cited it.
The opinion
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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KEVIN DARNELL BRYANT, Case No. 2:20-cv-03459-DMG-JC
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Plaintiff,
13 ORDER DISMISSING SECOND
v. AMENDED COMPLAINT WITH
14 LEAVE TO AMEND AND
RAYBON C. JOHNSON, et al., DIRECTING PLAINTIFF TO
15 RESPOND TO ORDER
16 Defendants.
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I. INTRODUCTION
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On April 14, 2020, plaintiff Kevin Darnell Bryant, who is in state custody,
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is proceeding pro se, and has since been granted leave to proceed without
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prepayment of the filing fee (“IFP”), filed a Civil Rights Complaint (“Original
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Complaint”) pursuant to 42 U.S.C. § 1983 (“Section 1983”). (Docket No. 1). On
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March 16, 2021, the Court screened and dismissed the Original Complaint with
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leave to amend. (Docket No. 21). On May 14, 2021, plaintiff filed a First
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Amended Complaint (Docket No. 27), which the Court screened and dismissed on
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November 16, 2021 (Docket No. 28).
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On July 13, 2022, plaintiff filed the operative Second Amended Complaint
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(or “SAC”) against the following fifteen defendants at California State Prison, Los
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1 Angeles County in Lancaster, California (“CSP-LAC”), where plaintiff was
2 formerly housed: (1) Warden Raybon C. Johnson; (2) Former Warden Deborah
3 Asuncion; (3) Chief Deputy Warden Donald D. Ulstad; (4) Associate Warden Eric
4 Jordan; (5) Correctional Sergeant Cori J. Campbell; (6) Investigative Services Unit
5 (“ISU”) Correctional Officer (C/O) Brandon Matthew Cherpin; (7) C/O Sergio
6 Montez; (8) C/O LaShanna Bridgeforth; (9) C/O Eduardo Torres; (10) C/O Frank
7 David Garcia; (11) Correctional Sergeant Andrew Puentes; and (12-15) Does 1-4.
8 (Docket No. 35). Defendants are all sued in their individual and official
9 capacities. (SAC at 4-6). The Second Amended Complaint sets forth three
10 “claims” which assert, respectively, that defendants (1) violated plaintiff’s
11 constitutional rights by having him assaulted in retaliation for winning his prior
12 lawsuit; (2) failed to protect plaintiff after being notified of threats and assaults
13 against him; and (3) violated his rights to due process and equal protection by
14 conspiring to place him in administrative segregation (“Ad-Seg”) based on
15 knowingly false charges.1 (SAC at 7). Plaintiff seeks various remedies, including
16 damages, declaratory relief and an order requiring prison officials to transfer
17 plaintiff to another facility. (SAC at 15).
18 As the Second Amended Complaint is deficient in multiple respects,
19 including those detailed below, it is dismissed with leave to amend.
20 ///
21 ///
22 ///
23 ///
24 ///
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26 1Although plaintiff does not clearly or accurately specify the legal right at issue in these
27 claims, they are construed as asserting, respectively, (1) a First Amendment retaliation claim, (2)
an Eighth Amendment excessive force/failure-to-protect claim, and (3) a Fourteenth Amendment
28 due process/equal protection claim.
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1 II. SECOND AMENDED COMPLAINT2
2 The Second Amended Complaint, liberally construed, alleges the following:
3 On May 18, 2017, while plaintiff was housed at Salinas Valley State Prison
4 (“SVSP”), he won a civil lawsuit in the United States District Court for the Eastern
5 District of California against two California Department of Corrections and
6 Rehabilitation (“CDCR”) correctional officers at Kern Valley State Prison
7 (“KVSP”), based on claims that the officers violated plaintiff’s constitutional
8 rights by conspiring with inmates to have plaintiff assaulted, failing to protect him
9 from the assault, and conspiring to deny him medical care. (SAC ¶ 1). On July
10 14, 2017, plaintiff was transferred from SVSP to CSP-LAC. (SAC ¶ 5). At CSP-
11 LAC, prison officials “almost immediately” started threatening plaintiff, and told
12 him it was payback for filing and winning his lawsuit. (SAC ¶ 6). Plaintiff, along
13 with his god-sister and attorney, reported the threats to then-Warden Asuncion and
14 others, seeking protection and transfer to a different facility, to no avail. (SAC
15 ¶ 7).
16 On August 16, 2017, defendants Montez and Bridgeforth told plaintiff that
17 their fellow officers wanted to know why he had snitched on the KVSP officers (in
18 his earlier lawsuit) and asked if plaintiff thought they were going to let him get
19 away with having done so. (SAC ¶ 8). They continued to threaten plaintiff and
20 tell him he was going to be assaulted for filing and winning his lawsuit. (SAC
21 ¶ 9). On September 5, 2017, Montez had three inmates attack plaintiff under the
22 stairs, breaking plaintiff’s nose, while Montez watched from near the counselor’s
23 office but never pushed his alarm button or intervened to protect plaintiff. (SAC
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25
2The “Factual Allegations” section of the Second Amended Complaint is organized in
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sixty-five paragraphs, numbered sequentially, from 1-65. (See SAC at 8-14). All citations to
27 paragraphs in this Order refer to the numbered paragraphs in the Factual Allegations section of
the Second Amended Complaint. The named individuals in these allegations are listed as
28 defendants unless otherwise noted.
3
1 ¶ 10). Afterward, Montez told plaintiff he would be killed if he reported Montez
2 or the inmates. (SAC ¶ 11). When plaintiff told Montez about his broken nose,
3 Montez said he did not care. (SAC ¶ 11).
4 On November 6, 2017, defendant Bridgeforth threatened to have plaintiff
5 assaulted again unless he sent her $5,000 for two cell phones she had put in
6 plaintiff’s cell, unsolicited, weeks before. (SAC ¶ 12). At plaintiff’s request,
7 plaintiff’s god-sister reported this directly to defendant Warden Asuncion. (SAC
8 ¶ 13).
9 On November 29, 2017, defendant Montez had two inmates attack plaintiff
10 in the dayroom while Montez looked on but did not help plaintiff in any way.
11 (SAC ¶ 15). Afterward, plaintiff told defendant Montez he would report the
12 incident to the warden, and Montez responded by striking plaintiff on the head
13 twice with his baton, leaving two permanent dents in plaintiff’s skull. (SAC ¶ 17).
14 At plaintiff’s request, plaintiff’s god-sister reported this directly to defendant
15 Warden Asuncion and others. (SAC ¶ 18).
16 On January 3, 2018, two gang member inmates told plaintiff that defendants
17 Montez and Bridgeforth had promised them drugs and/or cell phones if they killed
18 plaintiff. (SAC ¶ 19). Later that day, Montez threatened to have other inmates
19 assault him, which was overheard by medical staff nurses. (SAC ¶ 20). Soon
20 after, mental health staff received reports of this threat and had plaintiff transferred
21 to a different building. (SAC ¶ 21).
22 On January 9, 2018, defendant Garcia, who years before had caused
23 plaintiff’s jaw to be broken in an assault, told plaintiff he would get what he had
24 coming to him for suing those officers at KVSP. (SAC ¶ 22).
25 On February 1, 2018, defendant Torres told plaintiff he was housing
26 plaintiff with an inmate who would assault or possibly kill plaintiff in retaliation
27 for plaintiff’s lawsuits and reporting of Montez’s actions. (SAC ¶ 23). Plaintiff
28 ///
4
1 reported this to his prior civil attorney, who complained to Warden Asuncion.
2 (SAC ¶ 24).
3 On April 25, 2018, defendants Torres and Garcia paid several inmates to
4 jump plaintiff in the dayroom. (SAC ¶ 26). As the inmates kicked and punched
5 plaintiff in the head and back and tried to stab him in the neck, none of the officers
6 watching did anything to stop it. (SAC ¶ 26).
7 On August 2, 2018, plaintiff’s god-sister reported the assaults to Warden
8 Asuncion, who was upset about being contacted directly, and otherwise did not
9 seem concerned about the allegations of assault and torture. (SAC ¶ 27).
10 On August 22, 2018, defendants Torres and Campbell directed the control
11 booth officer to open plaintiff’s cell door, enabling two inmates to enter and attack
12 plaintiff, while the officers watched and did nothing to stop it. (SAC ¶ 29). A few
13 days later, on August 26, Torres and Campbell again directed that plaintiff’s cell
14 be opened so that the same two inmates could enter and attack plaintiff. (SAC
15 ¶ 30). The inmates sliced plaintiff’s chest with a razor blade before plaintiff could
16 fight them off. (SAC ¶ 30). Again, Torres and Campbell watched and did
17 nothing. (SAC ¶ 30). Afterward, when plaintiff was bleeding and needed medical
18 attention, Torres and Campbell came to plaintiff’s cell and told him he would be
19 attacked again if he went to the medical clinic or ever reported the incident. (SAC
20 ¶ 31).
21 On September 5, 2018, defendants Warden Asuncion, Chief Deputy Warden
22 Ulstad, and ISU C/O Cherpin, conspired to submit a knowingly false Rule
23 Violation Report (“RVR”) causing plaintiff to be placed in Ad-Seg. (SAC ¶ 32).
24 On the day plaintiff was placed in Ad-Seg, while defendants Torres and
25 Campbell escorted him to the stand-up cages in the gym, they told him they were
26 going to take all his food and personal property and use it to pay off the inmates
27 whom they had directed to assault plaintiff. (SAC ¶ 33). Over a thousand dollars’
28 ///
5
1 worth of plaintiff’s property was later taken and given away, according to several
2 witnesses. (SAC ¶ 33).
3 On October 4, 2018, plaintiff appeared before defendant Warden Asuncion
4 at his Inmate Classification Committee (“ICC”) hearing and explained everything
5 that had been happening to him. (SAC ¶ 34). Asuncion claimed she was going to
6 “make [plaintiff] whole again” and direct the ISU to investigate the matter, and
7 she would also release plaintiff from Ad-Seg to the C-yard. (SAC ¶ 34).
8 However, Asuncion retired from the CDCR several days later, without ever
9 initiating any investigation or otherwise helping to protect plaintiff from further
10 harm. (SAC ¶ 35).
11 When defendant Johnson replaced defendant Asuncion as warden, in
12 October 2018, plaintiff’s god-sister called Warden Johnson and told him about the
13 assaults on plaintiff, and Warden Johnson said he would investigate and protect
14 plaintiff, but did not do so. (SAC ¶ 36). Plaintiff’s god-sister also told defendants
15 Associate Warden Jordan and Chief Deputy Warden Ulstad about the threats and
16 assaults, but they, too, did nothing to help and instead moved to cover up every
17 complaint and allowed the harms to continue. (SAC ¶ 38).
18 On January 8, 2019, defendants Warden Johnson, Chief Deputy Warden
19 Ulstad, and ISU C/O Cherpin conspired to submit a false RVR causing plaintiff to
20 be placed back in Ad-Seg. (SAC ¶ 39). At plaintiff’s subsequent hearing on the
21 RVR, plaintiff was not allowed to call witnesses or even submit written questions
22 to witnesses, who would have testified that the charges were knowingly false.
23 (SAC ¶ 40). The senior hearing officer, Lt. Lugo (not a defendant), told plaintiff
24 that defendant Warden Johnson had directed him to deny plaintiff any witnesses
25 and to find plaintiff guilty, even though Lt. Lugo acknowledged there was no
26 evidence of plaintiff’s guilt. (SAC ¶ 41). Defendant Ulstad also signed off on the
27 hearing decision. (SAC ¶ 40).
28 ///
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1 On March 21, 2019, Associate Warden Jordan, who had been contacted by
2 plaintiff’s god-sister, came to plaintiff’s cell in Ad-Seg and said plaintiff and his
3 god-sister would be killed if they did not stop making complaints. (SAC ¶ 42).
4 Defendant Jordan also told plaintiff that defendants Torres and Campbell were
5 taking his property and orchestrating assaults against plaintiff as retaliation for his
6 lawsuits and complaints, and it would not be over until plaintiff was dead. (SAC ¶
7 43).
8 Defendant Chief Deputy Warden Ulstad chaired all of plaintiff’s ICC
9 hearings in Ad-Seg, and assertedly conspired with defendants Warden Johnson
10 and Sergeant Campbell to have plaintiff assaulted. (SAC ¶ 44). At an ICC
11 hearing on April 4, 2019, defendant Ulstad ordered plaintiff to be released from
12 Ad-Seg and returned to the C-yard. (SAC ¶ 45). However, because plaintiff’s
13 god-sister had paid prison gang members to protect him, the planned assault on
14 plaintiff did not materialize, so Warden Johnson had plaintiff placed back in Ad-
15 Seg four days later, on April 8. (SAC ¶ 46).
16 On the morning of April 8, 2019, two or three officers took plaintiff to the
17 gym, strip-searched him, and locked him in a stand-up cage, which they said they
18 were doing at the warden’s orders. (SAC ¶ 47). Three or four other officers
19 (defendants Does 1-4) then came and told plaintiff they were taking him to the
20 program office to see defendant Campbell. (SAC ¶ 48). Plaintiff told the officers
21 that he required a waist chain due to his reliance on a cane, but they refused to
22 obtain one. (SAC ¶ 49). They handcuffed him behind his back and took him
23 straight to the staff restroom in the gym, where one of the officers grabbed
24 plaintiff in a choke-hold from behind until he was unconscious. (SAC ¶ 50). The
25 officers continued to repeatedly choke plaintiff unconscious each time he awoke,
26 for an unknown length of time. (SAC ¶ 50). When plaintiff finally regained
27 consciousness, he was on the floor, and the Doe defendants were pulling up
28 plaintiff’s pants and underwear. (SAC ¶ 51). Plaintiff felt extreme pain in his
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1 rectum. (SAC ¶ 51). The officers lifted him up, put him back in the stand-up
2 cage, and left. (SAC ¶ 51).
3 Defendant Campbell arrived a few minutes later and told plaintiff that the
4 warden had said to teach plaintiff some humility by subjecting him to sexual
5 assault. (SAC ¶ 52). Defendant Campbell asked plaintiff if he felt humiliated and
6 started laughing and making fun of him for having been sexually assaulted. (SAC
7 ¶ 52). She admitted defendants Johnson and Ulstad had directed this assault.
8 (SAC at ¶ 52). Around 3:00 or 4:00 p.m., two officers (not defendants) came and
9 took plaintiff back to Ad-Seg. (SAC ¶ 53).
10 From a holding cell in Ad-Seg, plaintiff quietly tried to report the sexual
11 assault to a psychologist (not a defendant), who said he was leaving for the day
12 and had no time. (SAC ¶¶ 54-55). The psychologist said he would tell the Ad-Seg
13 sergeant, defendant Puentes, though plaintiff begged him not to. (SAC ¶ 55).
14 Soon after, defendant Puentes came by and threatened plaintiff that if he reported
15 the assault, the officers would get away with it and plaintiff would be hurt and
16 possibly killed. (SAC ¶ 56). Plaintiff insisted that he would report it anyway.
17 (SAC ¶ 57).
18 At about 9:30 or 10:00 p.m., after defendant Puentes had threatened plaintiff
19 for hours, defendant Garcia and Officer Smith (not a defendant) brought plaintiff
20 to an interview room, and a team from Antelope Valley Hospital performed a
21 forensic exam. (SAC ¶ 58). The nurse who performed the exam remarked that she
22 saw something inside plaintiff’s rectum, and plaintiff was ordered to be
23 transported by ambulance to Antelope Valley Hospital. (SAC ¶ 59). At the
24 hospital, a plastic spoon was painfully extracted from plaintiff’s rectum. (SAC ¶
25 60).
26 On May 9, 2019, plaintiff served defendants with private administrative
27 process, which consisted of a “Formal Request for a Contested Case
28 Administrative Hearing,” along with exhibits, presenting all the issues as needed
8
1 to exhaust his administrative remedies and create a complete administrative record
2 for the court. (SAC ¶ 62).
3 On May 10, 2019, when plaintiff was finally allowed to make a phone call,
4 he called his god-sister, who then reported the incident to the governor. (SAC
5 ¶ 61). Eleven days later, on May 21, plaintiff was suddenly transferred to the
6 California Substance Abuse Treatment Facility and State Prison in Corcoran,
7 California (“CSATF”), where prison staff continued to try to have plaintiff
8 assaulted. (SAC ¶ 61).
9 III. PERTINENT LAW
10 A. The Screening Requirement
11 As plaintiff is a prisoner proceeding IFP on a civil rights complaint against
12 governmental defendants, the Court must screen the Second Amended Complaint,
13 and is required to dismiss the case at any time it concludes the action is frivolous
14 or malicious, fails to state a claim on which relief may be granted, or seeks
15 monetary relief against a defendant who is immune from such relief. See
16 28 U.S.C. §§ 1915(e)(2)(B), 1915A; 42 U.S.C. § 1997e(c); Byrd v. Phoenix Police
17 Dep’t, 885 F.3d 639, 641 (9th Cir. 2018) (citations omitted).
18 When screening a complaint to determine whether it states any claim that is
19 viable, the Court applies the same standard as it would when evaluating a motion
20 to dismiss under Federal Rule of Civil Procedure 12(b)(6). See Rosati v. Igbinoso,
21 791 F.3d 1037, 1039 (9th Cir. 2015) (citation omitted). Rule 12(b)(6), in turn, is
22 read in conjunction with Rule 8(a) of the Federal Rules of Civil Procedure.
23 Zixiang Li v. Kerry, 710 F.3d 995, 998-99 (9th Cir. 2013). Under Rule 8, each
24 complaint filed in federal court must contain a “short and plain statement of the
25 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While
26 Rule 8 does not require detailed factual allegations, at a minimum a complaint
27 must allege enough specific facts to provide both “fair notice” of the particular
28 claim being asserted and “the grounds upon which [that claim] rests.” Bell
9
1 || Atlantic Corp. v. Twombly, 550 U.S. 544, 555 & n.3 (2007) (citation and
2 || quotation marks omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
3 || (Rule 8 pleading standard “demands more than an unadorned, the-defendant-
4 || unlawfully-harmed-me accusation’) (citing Twombly, 550 U.S. at 555).
5 To avoid dismissal on screening, a complaint must “contain sufficient
6 || factual matter, accepted as true, to state a claim to relief that is plausible on its
7 || face.” Byrd, 885 F.3d at 642 (citations omitted); see also Johnson v. City of
8 || Shelby, Miss., 574 U.S. 10, 12 (2014) (per curiam) (Twombly and Iqbal instruct
9 || that plaintiff “must plead facts sufficient to show that [plaintiff's] claim has
10 || substantive plausibility”). A claim is “plausible” when the facts alleged in the
11 | complaint would support a reasonable inference that the plaintiff is entitled to
12 || relief from a specific defendant for specific misconduct. Iqbal, 556 U.S. at 678
13 || (citation omitted); see also Keates v. Koile, 883 F.3d 1228, 1242 (9th Cir. 2018)
14 | CTA] [Section 1983] plaintiff must plead that each Government-official defendant,
15 || through the official’s own individual actions, has violated the Constitution.”)
16 || (quoting Iqbal, 556 U.S. at 676); Gauvin v. Trombatore, 682 F. Supp. 1067, 1071
17 || (N.D. Cal. 1988) (complaint “must allege the basis of [plaintiff's] claim against
18 || each defendant” to satisfy Rule 8 requirements) (emphasis added). Allegations
19 || that are “merely consistent with” a defendant’s liability, or reflect only “the mere
20 || possibility of misconduct” do not “show|] that the pleader is entitled to relief” (as
21 || required by Fed. R. Civ. P. 8(a)(2)), and thus are insufficient to state a claim that is
22 || “plausible on its face.” Iqbal, 556 U.S. at 678-79 (citations and quotation marks
23 || omitted).
24 At this preliminary stage, “well-pleaded factual allegations” in a complaint
25 || are assumed true, while “[t]hreadbare recitals of the elements of a cause of action”
26 || and “legal conclusion[s] couched as a factual allegation” are not. Id. (citation and
27 || quotation marks omitted); Jackson v. Barnes, 749 F.3d 755, 763 (9th Cir. 2014)
28 || (“mere legal conclusions ‘are not entitled to the assumption of truth’”) (quoting
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1 || Iqbal, 556 U.S. at 678-79), cert. denied, 574 U.S. 1077 (2015). In addition, the
2 || Court is “not required to accept as true conclusory allegations which are
3 || contradicted by documents referred to in the complaint,” Steckman v. Hart
4 || Brewing, Inc., 143 F.3d 1293, 1295-96 (9th Cir. 1998) (citation omitted), and
5 || “need not [] accept as true allegations that contradict matters properly subject to
6 || judicial notice or by exhibit,” Sprewell v. Golden State Warriors, 266 F.3d 979,
7 || 988 (9th Cir.), amended on denial of reh’g, 275 F.3d 1187 (9th Cir. 2001) (citation
8 | omitted).
9 In general, civil rights complaints are interpreted liberally in order to give
10 || pro se plaintiffs “the benefit of any doubt.” Byrd, 885 F.3d at 642 (citations and
11 || internal quotation marks omitted). Nonetheless, a pro se plaintiff must still follow
12 || the rules of procedure that govern all litigants in federal court, including the
13 || Rule 8 requirement that a complaint minimally state a short and plain statement of
14 || aclaim that is plausible on its face. See Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir.
15 || 1995) (per curiam) (“Although we construe pleadings liberally in their favor, pro
16 || se litigants are bound by the rules of procedure.”’) (citation omitted), cert. denied,
17 | 516 U.S. 838 (1995); see also Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d
18 | 939, 954 (9th Cir. 2011) (en banc) (“[A] liberal interpretation of a... civil rights
19 || complaint may not supply essential elements of [a] claim that were not initially
20 || pled.’’) (quoting Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992)) (quotation
21 || marks omitted; ellipses in original).
22 If a pro se complaint is dismissed because it does not state a viable claim,
23 || the court must freely grant “leave to amend” (that is, give the plaintiff a chance to
24 || file a new, corrected complaint) if it is “at all possible” that the plaintiff could fix
25 || the identified pleading errors by alleging different or new facts. Cafasso, U.S. ex
26 || rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir. 2011) (citation
27 || omitted); Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000) (en banc).
28 | ///
11
1 B. —_ Section 1983 Claims
2 To state a Section 1983 claim, a complaint must allege that a defendant,
3 || while acting under color of state law, caused a deprivation of the plaintiff's federal
4 || rights. 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48 (1988) (citations
5 || omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citation omitted).
6 || There is no vicarious liability in Section 1983 lawsuits. Iqbal, 556 U.S. at 676.
7 || (citing, inter alia, Monell v. Dep’t of Soc. Servs. of the City of New York, 436
8 | U.S. 658, 691 (1978)). Hence, a government official may not be held liable under
9 || Section 1983 unless the particular official’s own actions caused the alleged
10 || constitutional deprivation. OSU Student Alliance v. Ray, 699 F.3d 1053, 1069
11 | (9th Cir. 2012) (citing Iqbal, 556 U.S. at 676), cert. denied, 571 U.S. 819 (2013).
12 | A Section 1983 plaintiff must establish both causation-in-fact and proximate (i.e.,
13 || legal) causation. See Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th
14 Cir. 2008). Allegations regarding Section 1983 causation “must be individualized
15 || and focus on the duties and responsibilities of each individual defendant whose
16 || acts or omissions are alleged to have caused a constitutional deprivation.” Leer v.
17 || Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citations omitted). “Sweeping
18 || conclusory allegations [regarding causation] will not suffice... .” Id. (citation
19 || omitted).
20 An individual “causes” a constitutional deprivation basically when he
21 || (1) “does an affirmative act, participates in another’s affirmative acts, or omits to
22 || perform an act which he is legally required to do that causes the deprivation”; or
23 || (2) “set[s] in motion a series of acts by others which the [defendant] knows or
24 || reasonably should know would cause others to inflict the constitutional injury.”
25 || Lacey v. Maricopa County, 693 F.3d 896, 915 (9th Cir. 2012) (en banc) (quoting
26 || Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978)) (quotation marks
27 || omitted).
28 | ///
12
1 Similarly, a government official acting in a supervisory capacity “causes” a
2 || deprivation to the extent he (1) personally participates in or directs a subordinate’s
3 || constitutional violation; or (2) was not “physically present when the [plaintiffs]
4 || injury occurred,” but the constitutional deprivation can, nonetheless, be “directly
5 || attributed” to the supervisor’s own wrongful conduct. Starr v. Baca, 652 F.3d
6 || 1202, 1207 (9th Cir. 2011), cert. denied 566 U.S. 982 (2012); see also OSU
7 || Student Alliance, 699 F.3d at 1069 (citing Iqbal, 556 U.S. at 676). Under the
8 || latter theory, even absent “overt personal participation,” a supervisor may be liable
9 || under Section 1983 if he created, promulgated, implemented, advanced, or was
10 || otherwise responsible for the continued operation of a policy that “requires
11 || subordinates to commit constitutional violations,” and enforcement of the policy
12 || (either by the defendant-supervisor or his subordinates) proximately caused the
13 | plaintiff's constitutional injury. OSU Student Alliance, 699 F.3d at 1076 (citing
14 || Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010), cert. denied, 563 U.S.
15 | 960 (2011)); see also Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013)
16 || (supervisory officials may be held liable “even without overt personal
17 || participation in the offensive act if supervisory officials implement a policy so
18 || deficient that the policy ‘itself is a repudiation of constitutional rights’ and is ‘the
19 || moving force of a constitutional violation’’’) (citation and internal quotation marks
20 || omitted).
21 C. ‘First Amendment — Right to Seek Redress and to Be Free from
22 Retaliation
23 “Prisoners have a First Amendment right to file grievances against prison
24 | officials ....” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (citation
25 || omitted). A prison official’s alleged failure to process an inmate grievance may
26 || implicate a prisoner’s First Amendment right of access to the courts, but to state
27 || such a claim, a plaintiff must show that he suffered an “actual injury” as a result of
28 || a defendant’s actions. Lewis v. Casey, 518 U.S. 343, 351-53, 354-55 (1996); see
13
1 || generally Bounds v. Smith, 430 U.S. 817, 821 (1977) (well-established that
2 || prisoners have a constitutional right of access to the courts), abrogated in part on
3 || other grounds by, Lewis, 518 U.S. at 354. To prove an actual injury, a prisoner
4 || must show that a defendant hindered the prisoner’s efforts to pursue a
5 | nonfrivolous claim concerning his conviction or conditions of confinement. See
6 || Lewis, 518 U.S. at 354-55. The mere denial of a grievance does not suffice. See
7 || Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (Prisoners do not have a
8 || “separate constitutional entitlement to a specific prison grievance procedure.”’)
9 || (citation omitted), cert. denied, 541 U.S. 1063 (2004); see also, e.g., Todd v. Cal.
10 || Dep’t of Corr. & Rehab., 615 F. App’x 415, 415 (9th Cir. 2015) (district court
11 || properly dismissed claim based on improper “processing and handling of [] prison
12 || grievances,” since prisoners have no “constitutional entitlement to a specific
13 || prison grievance procedure’’) (quoting Ramirez, 334 F.3d at 860) (quotation marks
14 || omitted).
15 Retaliation against a prisoner for exercising his First Amendment right to
16 || seek redress/access the court is an independent constitutional violation. Brodheim
17 || v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). To prevail on a First Amendment
18 || retaliation claim, an inmate must prove that (1) the plaintiff/inmate engaged in
19 || conduct that is protected under the First Amendment; (2) a prison official took
20 || ‘adverse action” against the inmate; (3) the inmate’s protected conduct was the
21 || “substantial or motivating factor” behind the prison official’s action; (4) the
22 || official’s retaliatory action “would chill or silence a person of ordinary firmness
23 || from future First Amendment activities”; and (5) the action “did not advance
24 || legitimate goals of the correctional institution” because it was either “arbitrary and
25 || capricious” or “unnecessary to the maintenance of order in the institution.”
26 || Watison, 668 F.3d at 1114-15 (citations and internal quotation marks omitted);
27 || Brodheim, 584 F.3d at 1271 (addressing First Amendment retaliation claim in
28 | ///
14
1 || summary judgment context). “[T]he mere threat of harm can be an adverse action
2||....” Watison, 668 F.3d at 1114 (quoting Brodheim, 584 F.3d at 1270).
3 To satisfy the causation element of a First Amendment retaliation claim, an
4 || inmate/plaintiff must demonstrate that there was a specific causal link between the
5 || defendant’s alleged retaliatory conduct and the inmate’s exercise of a
6 || constitutional right. See generally Hartman v. Moore, 547 U.S. 250, 259 (2006)
7 || (citations omitted); Pratt v. Rowland, 65 F.3d 802, 807-08 (9th Cir. 1995). A
8 || plaintiff may do so either with direct evidence of a defendant’s retaliatory motive,
9 || or with circumstantial evidence of the defendant’s knowledge of the protected
10 || conduct at issue plus some other evidence probative of retaliatory intent, such as
11 || “(1) proximity in time between protected speech and the alleged retaliation;
12 || (2) [that] the [defendant] expressed opposition to the speech; [or] (3) other
13 || evidence that the reasons proffered by the [defendant] for the adverse . . . action
14 || were false and pretextual.” McCollum v. California Dep’t of Corr. & Rehab., 647
15 | F.3d 870, 882 (9th Cir. 2011) (citation and quotation marks omitted; alterations in
16 || original); see generally Watison, 668 F.3d at 1114 (direct evidence of retaliatory
17 || intent “rarely” available).
18 D. Eighth Amendment — Excessive Force/Failure to Protect
19 “Not every governmental action affecting the interests or well-being of a
20 || prisoner is subject to Eighth Amendment scrutiny[.]” Whitley v. Albers, 475 U.S.
21 | 312, 319 (1986). “After incarceration, only the unnecessary and wanton infliction
22 || of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth
23 | Amendment.” Id. (internal quotation marks and citation omitted). “[C]ourts
24 || considering a prisoner’s claim must ask: 1) if the officials acted with a sufficiently
25 || culpable state of mind; and 2) if the alleged wrongdoing was objectively harmful
26 || enough to establish a constitutional violation.” Somers v. Thurman, 109 F.3d 614,
27 || 622 (9th Cir.) (citing Hudson v. McMillian, 503 U.S. 1, 8 (1992)), cert. denied,
28 | 522 U.S. 852 (1997). The relevant inquiry, when assessing Eighth Amendment
15
1 || claims, is “whether force was applied in a good-faith effort to maintain or restore
2 || discipline, or maliciously and sadistically to cause harm.” Hudson, 503 U.S. at 7;
3 || see also Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003) (same).
4 The Eighth Amendment also requires prison officials to ensure the safety of
5 || prisoners, including protecting prisoners from each other. Farmer v. Brennan, 511
6 | U.S. 825, 833 (1994); Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005)
7 || (citing Farmer, 511 U.S. at 833); see also White v. Roper, 901 F.2d 1501, 1503-04
8 | (9th Cir. 1990) (insufficient protection of a prisoner resulting in harm inflicted by
9 || other inmates may violate a prisoner’s constitutional rights). A prison official
10 || violates the Eighth Amendment when: (1) an inmate is incarcerated under
11 || conditions posing a substantial risk of serious harm; and (2) the prison official
12 || deliberately disregards the risk by failing to take reasonable measures to abate it.
13 || Farmer, 511 U.S. at 847; Hearns, 413 F.3d at 1040-42. Under this standard, the
14 | prison official must not only “be aware of facts from which the inference could be
15 || drawn that a substantial risk of serious harm exists,” but that person “must also
16 || draw the inference.” Farmer, 511 U.S. at 837. A prison official acts with
17 || deliberate indifference when he knows of and disregards an “excessive risk” of
18 | harm to an inmate. Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014)
19 || (citations omitted). “If a [prison official] should have been aware of the risk, but
20 || was not, then the [official] has not violated the Eighth Amendment, no matter how
21 || severe the risk.” Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th
22 || Cir. 2002) (citation omitted), cert. denied, 537 U.S. 1106 (2003), overruled in part
23 || on other grounds by Castro v. County of Los Angeles, 833 F.3d 1060, 1076 (9th
24 || Cir. 2016) (en banc), cert. denied, 137 S. Ct. 831 (2017). A showing of mere
25 || negligence or civil recklessness does not suffice. See Farmer, 511 U.S. at 835-47.
26 When a plaintiff seeks to hold an individual defendant personally liable for
27 || damages, the causation inquiry between the deliberate indifference and the Eighth
28 || Amendment deprivation requires a very individualized approach which accounts
16
1 || for the duties, discretion, and means of each defendant. Leer, 844 F.2d at 633-34
2 || (citation omitted). The prisoner must set forth specific facts as to each individual
3 || defendant’s deliberate indifference. Id. at 634. There must be an affirmative link
4 || between a defendant’s actions and the claimed deprivation. See Rizzo v. Goode,
5 | 423 U.S. 362 (1976).
6 E. Fourteenth Amendment — Due Process
7 A due process claim based on prison disciplinary proceedings requires
8 || allegations that state officials placed the inmate’s liberty interest “at stake.”
9 || Wilkinson v. Austin, 545 U.S. 209, 221 (2005). A protected liberty interest may
10 || arise from the Constitution itself — such as when a change in an inmate’s
11 || conditions of confinement exceeds the inmate’s sentence in a particularly
12 || “unexpected manner... .” Sandin v. Conner, 515 U.S. 472, 484 (1995) (citations
13 || omitted). A protected liberty interest may also arise from state policies or
14 || regulations. See Wilkinson, 545 U.S. at 222 (citation omitted). State-created
15 || liberty interests, however, are “generally limited to freedom from restraint which .
16 ||. . imposes atypical and significant hardship on the inmate in relation to the
17 || ordinary incidents of prison life.” Sandin, 515 U.S. at 484 (citations omitted).
18 In disciplinary proceedings which implicate the Fourteenth Amendment’s
19 || Due Process Clause, a prisoner charged with a disciplinary violation is entitled to
20 || certain due process protections. Wolff v. McDonnell, 418 U.S. 539, 564-71
21 || (1974). Wolff established five constitutionally-mandated procedural requirements
22 || for such disciplinary proceedings. First, “written notice of the charges must be
23 || given to the disciplinary-action defendant in order to inform him of the charges
24 || and to enable him to marshal the facts and prepare a defense.” Id. at 564. Second,
25 || “[a]t least a brief period of time after the notice, no less than 24 hours, should be
26 || allowed to the inmate to prepare for the appearance before the [disciplinary
27 || committee].” Id. Third, “there must be a ‘written statement by the factfinders as
28 || to the evidence relied on and reasons’ for the disciplinary action.” Id. at 564-65
17
1 || (quoting Morrissey v. Brewer, 408 U.S. 471, 489 (1972)). Fourth, “the inmate
2 || facing disciplinary proceedings should be allowed to call witnesses and present
3 || documentary evidence in his defense when permitting him to do so will not be
4 || unduly hazardous to institutional safety or correctional goals.” Id. at 566. Finally,
5 || “[w]here an illiterate inmate is involved . . . or [where] the complexity of the issue
6 | makes it unlikely that the inmate will be able to collect and present the evidence
7 || necessary for an adequate comprehension of the case, he should be free to seek the
8 || aid of a fellow inmate, or... to have adequate substitute aid .. . from the staff or
9 || from a sufficiently competent inmate designated by the staff.” Id. at 570. In order
10 || to meet the minimum requirements of procedural due process outlined in Wolff,
11 || the findings of a prison disciplinary board also must be supported by “some
12 || evidence.”’ Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454
13 || (1985).
14 F. Fourteenth Amendment — Equal Protection
15 Pursuant to the Equal Protection Clause of the Fourteenth Amendment,
16 || persons who are similarly situated must be treated alike. City of Cleburne, Texas
17 || v. Cleburne Living Center, 473 U.S. 432, 439 (1985). To state an equal protection
18 || claim, a plaintiff generally must “show that the defendants acted with an intent or
19 || purpose to discriminate against the plaintiff based upon membership in a protected
20 || class,” such as race. Thornton v. City of St. Helens, 425 F.3d 1158, 1166 (9th Cir.
21 || 2005) (citation and internal quotation marks omitted); Sampson v. County of Los
22 || Angeles, 974 F.3d 1012, 1022 (9th Cir. 2020); see also Monteiro v. Tempe Union
23 | High Sch. Dist., 158 F.3d 1022, 1026 (9th Cir. 1998) (“We have held that § 1983
24 || claims based on Equal Protection violations must plead intentional unlawful
25 || discrimination or allege facts that are at least susceptible of an inference of
26
27 *The “some evidence” standard of review applies even when an inmate alleges that a
hearing officer has falsely found plaintiff guilty of a rules violation. Hines v. Gomez, 108 F.3d
28 || 265, 269-70 (9th Cir. 1997), cert. denied, 524 U.S. 936 (1998).
18
1 || discriminatory intent.”). Ifthe action in question does not involve a suspect
2 || classification, a plaintiff may establish an equal protection claim by showing that
3 || similarly situated individuals were intentionally treated differently without a
4 || rational relationship to a legitimate state purpose. Village of Willowbrook v.
5 || Olech, 528 U.S. 562, 564 (2000); San Antonio Indep. Sch. Dist. v. Rodriguez, 411
6 || U.S. 1 (1972); SeaRiver Maritime Fin. Holdings, Inc. v. Mineta, 309 F.3d 662,
7 || 679 (9th Cir. 2002). To state an equal protection claim under this theory, a
8 || plaintiff must allege that: (1) the plaintiff is a member of an identifiable class; (2)
9 || the plaintiff was intentionally treated differently from others similarly situated;
10 || and (3) there is no rational basis for the difference in treatment. Village of
11 | Willowbrook, 528 U.S. at 564.
DISCUSSION
13 Plaintiff's Second Amended Complaint is dismissed with leave to amend for
14 violation of Rule 8 of the Federal Rules of Civil Procedure. Moreover, as
15 || discussed below, several of plaintiff's claims fail to state a viable claim for relief.
16 A. Rule 8 of the Federal Rule of Civil Procedure
17 As noted above, Rule 8 requires a complaint to contain “‘a short and plain
18 || statement of the claim showing that the pleader is entitled to relief.” “Each
19 || allegation must be simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1).
20 | Conclusory allegations are insufficient. See Iqbal, 556 U.S. at 678, 686.
21 || “Experience teaches that, unless cases are pled clearly and precisely, issues are not
22 || joined, discovery is not controlled, the trial court’s docket becomes unmanageable,
23 || the litigants suffer, and society loses confidence in the court’s ability to administer
24 || justice.” Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000)
25 || (citation omitted). A complaint is subject to dismissal under Rule 8 if “one cannot
26 || determine from the complaint who is being sued, for what relief, and on what
27 || theory.” McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996). Moreover,
28 || “Rule 8(a) has ‘been held to be violated by a pleading that was needlessly long, or
19
1 || a complaint that was highly repetitious, or confused, or consisted of
2 || incomprehensible rambling’” Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys.,
3 | Inc., 637 F.3d 1047, 1059 (9th Cir. 2011) (quoting 5 Charles A. Wright & Arthur
4] R. Miller, Federal Practice & Procedure § 1217 (3d ed. 2010)).
5 The Second Amended Complaint violates Rule 8 by failing clearly to
6 || convey the legal and factual basis for each claim being asserted against each
7 || defendant. Instead, plaintiff very briefly sets forth three general “claims” that
8 | neglect to identify which specific defendants or conduct is at issue. Plaintiff then
9 || includes a lengthy section of Factual Allegations, which comprises a variety of
10 || detailed allegations against numerous defendants, many of whom had very
11 || different responsibilities or involvement in the alleged harms. Although the
12 || Factual Allegations occasionally allude to “retaliation” and “‘due process” and to
13 | plaintiff's rights to be free from deliberate indifference and abuse under the Eighth
14 | Amendment, they fail to provide any clear notice as to which specific defendants
15 || are being sued for each violation and for which conduct. As a result, most
16 || defendants would be unable to adequately understand and respond to the claims
17 || and allegations against them. To remedy this problem, plaintiff must, at a
18 || minimum, provide clear factual allegations against each named defendant, separate
19 || each legal predicate into a separate claim, and expressly identify which
20 || defendant(s) are sued in each claim and which allegations are at issue in each
21 | claim. See Twombly, 550 U.S. at 555 & n.3 (complaint must allege enough
22 || specific facts to provide both “fair notice” of the particular claim being asserted
23 || and “the grounds upon which [that claim] rests”).
24 Because the Second Amended Complaint fails to give defendants clear
25 || notice of the claims asserted against them, dismissal of the Second Amended
26 || Complaint for violation of Rule 8 is warranted. See Hearns v. San Bernardino
27 || Police Dep’t, 530 F.3d 1124, 1129 (9th Cir. 2008) (court may dismiss complaint
28 || with prejudice for violation of Rule 8); Nevijel v. N. Coast Life Ins. Co., 651 F.2d
20
1 671, 674 (9th Cir. 1981) (affirming dismissal of 48-page complaint and 23 page
2 amended complaint that were both “verbose” and “confusing,” for violation of
3 Rule 8). Here, dismissal with leave to amend is appropriate.
4 B. Failure to State a Claim
5 In addition to violating Rule 8, the Second Amended Complaint is deficient
6 in other respects, as well, including a failure to state certain claims.4
7 First, plaintiff fails to state a First Amendment claim against at least
8 defendants Asuncion and Cherpin because plaintiff does not provide allegations
9 showing that these defendants ever acted with the intent to prevent plaintiff from
10 exercising his First Amendment rights or to retaliate against him for exercising
11 such rights. See Watison, 668 F.3d at 1114 (First Amendment retaliation claim
12 much allege that the inmate’s protected conduct was the “substantial or motivating
13 factor” behind the prison official’s action).
14 Second, plaintiff fails to state an Eighth Amendment claim against at least
15 Bridgeforth, Cherpin, and Puentes because he does not allege that these
16 defendants ever actually caused plaintiff harm or knowingly failed to protect
17 plaintiff from a serious threat of harm. See Hearns, 413 F.3d at 1042 (Eighth
18 Amendment failure to protect claim requires allegations that inmate “faced a
19
20 4Plaintiff’s allegations at least arguably state First and/or Eighth Amendment claims
against some defendants. Specifically, plaintiff at least arguably states a First Amendment claim
21
against the following defendants, based on retaliatory acts of assault or threats of assault, related
22 to the exercise of plaintiff’s First Amendment rights: Johnson (SAC ¶¶ 46-47, 52), Jordan (SAC
¶¶ 42-43), Ulstad (SAC ¶ 52), Montez (SAC ¶¶ 8-9, 11, 17), Bridgeforth (SAC ¶¶ 8-9), Garcia
23 (SAC ¶ 22), Torres (SAC ¶¶ 31, 43), Campbell (SAC ¶¶ 31, 43, 52), Puentes (SAC ¶¶ 56-58),
and Does 1-4 (SAC ¶¶ 48-52). He also at least arguably states Eighth Amendment failure to
24
protect or excessive force claims against the following defendants: Asuncion (SAC ¶¶ 13-14, 16,
25 18, 25, 27-28, 34-35), Johnson (SAC ¶¶ 36-37, 46-47), Jordan (SAC ¶ 38), Ulstad (SAC ¶¶ 38,
44, 52), Montez (SAC ¶¶ 10-11, 15, 17), Garcia (SAC ¶ 26), Torres (SAC ¶¶ 29-31), Campbell
26
(SAC ¶¶ 29-31, 48, 52), and Does 1-4 (SAC ¶¶ 48-51). Even so, however, the Second Amended
27 Complaint as a whole still merits dismissal with leave to amend, at least due to the violation of
Rule 8 discussed above, which makes it difficult for defendants to properly discern and defend
28 against the claims.
21
1 || substantial risk of serious harm” and “disregard[ed] that risk by failing to take
2 || reasonable measures to abate it’’) (internal quotation and citation omitted).
3 || Plaintiff instead alleges, at most, that these defendants threatened plaintiff with
4 || harm (see SAC {¥ 8-9, 12, 56-58), but not that they actually harmed him, caused
5 || him to be harmed, or failed to protect him from harm. See Keenan v. Hall, 83 F.3d
6 || 1083, 1092 (9th Cir. 1996) (“[ Verbal harassment generally does not violate the
7 || Eighth Amendment.”), as amended, 135 F.3d 1318 (9th Cir. 1998); Gaut v. Sunn,
8 | 810 F.2d 923, 925 (9th Cir. 1987) (‘I]t trivializes the [E]ighth [A ]mendment to
9 || believe a threat constitutes a constitutional wrong.”).
10 Third, plaintiff fails to state a due process claim against any defendant,
11 | particularly because plaintiff does not allege that any liberty interest was at stake.
12 || He has not alleged, as he must under Sandin, facts related to the conditions or
13 |) consequences of his disciplinary hearings which show “the type of atypical,
14 || significant deprivation [that] might conceivably create a liberty interest.” Sandin,
15 | 515 U.S. at 486. To the extent plaintiff claims that his placement in Ad-Seg
16 || establishes a due process violation, the Second Amended Complaint does not
17 || plausibly so allege. Typically, placement in segregated housing in and of itself
18 || does not implicate a protected liberty interest. Serrano, 345 F.3d at 1078; see, e.g.,
19 | Sandin, 515 U.S. at 485-86 (inmate’s thirty-day placement in disciplinary
20 || segregation, where conditions mirrored conditions imposed upon inmates in
21 || administrative segregation and protective custody, did not result in type of
22 || atypical, significant deprivation for which state might create liberty interest);
23 || Resnick v. Hayes, 213 F.3d 443, 448-49 (9th Cir. 2000) (no protected liberty
24 || interest in being free from confinement in prison’s special housing unit (“SHU”)
25 || pending disciplinary hearing where complaint made no allegations that plaintiff's
26 || conditions in SHU were materially different from conditions imposed on inmates
27 || in purely discretionary segregation, that conditions in SHU created major
28 | disruption in plaintiff's environment in comparison with conditions in general
22
1 || population housing, or that SHU segregation at all affected the length of plaintiffs
2 || sentence); but see Serrano, 345 F.3d at 1078-79 (protected liberty interest
3 || implicated when wheelchair-assisted inmate put in SHU not designed for disabled
4 || persons, because placement forced him to endure situation far worse than a non-
5 || disabled person sent to SHU would have to face). Here, the Second Amended
6 || Complaint does not allege facts about plaintiff's confinement in Ad-Seg which
7 || demonstrate that such confinement itself constituted a significant and atypical
8 || hardship relative to those in general population. His conclusory allegations on this
9 || point (see SAC ¥ 39) do not suffice. See Iqbal, 556 U.S. at 678, 686.
10 Finally, plaintiff fails to state any equal protection claim because he does
11 || not allege facts showing that any defendant intentionally discriminated against
12 || him based upon his membership in a protected class, such as race, see, e.g., Lee v.
13 || City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001), or that a defendant
14 |) intentionally treated him differently from similarly situated individuals without a
15 || rational relationship to a legitimate state purpose, Village of Willowbrook, 528
16 || U.S. at 564. Prisoners are not a suspect class. See Rodriguez v. Cook, 169 F.3d
17 || 1176, 1179 (9th Cir. 1999).
18 | ///
19 | ///
20 | ///
21 | ///
22 | ///
23 ///
24 ///
26 | ///
27 | ///
28 | ///
23
1 V. ORDERS5
2 In light of the foregoing, IT IS HEREBY ORDERED that the Second
3 Amended Complaint is dismissed with leave to amend.
4 IT IS FURTHER ORDERED that within twenty (20) days of the date of this
5 Order, plaintiff must do one of the following:
6 1. File a Third Amended Complaint which cures the pleading defects set
7 forth herein;6 or
8 2. Sign and file the attached Notice of Dismissal which will result in
9 the voluntary dismissal of this action without prejudice; or
10 3. File a Notice of Intent to Stand on Second Amended Complaint,
11 indicating plaintiff’s intent to stand on the Second Amended Complaint despite the
12 ///
13
14
5The Magistrate Judge’s orders herein constitute non-dispositive rulings on pretrial
matters. See McKeever v. Block, 932 F.2d 795, 797-98 (9th Cir. 1991) (magistrate judges can
15 dismiss complaints with leave to amend; dismissal of complaint with leave to amend is
non-dispositive matter). To the extent a party disagrees with such non-dispositive rulings, such
16
party may file a motion for review by the assigned District Judge within fourteen (14) days. See
17 Local Rule 72-2.1. To the extent a party believes the rulings to be dispositive, rather than non-
dispositive, such party has the right to object to this Court’s determination that the rulings are
18 non-dispositive within fourteen (14) days. A party will be foreclosed from challenging the
19 rulings herein if such party does not seek review thereof, or object thereto.
20 6The Clerk is directed to provide plaintiff with a Central District of California Civil
Rights Complaint Form, CV-66, to facilitate plaintiff’s filing of a Third Amended Complaint if
21
he elects to proceed in that fashion. Any Third Amended Complaint must: (a) be labeled “Third
22 Amended Complaint”; (b) be complete in and of itself and not refer in any manner to the Second
Amended Complaint – i.e., it must include all claims on which plaintiff seeks to proceed (Local
23 Rule 15-2); (c) contain a “short and plain” statement of each of the claim(s) for relief (Fed. R.
Civ. P. 8(a)); (d) make each allegation “simple, concise and direct” (Fed. R. Civ. P. 8(d)(1)); (e)
24
set forth clearly the sequence of events giving rise to the claim(s) for relief in sequentially
25 “numbered paragraphs, each limited as far as practicable to a single set of circumstances” (Fed.
R. Civ. P. 10(b)); (f) allege specifically what each defendant did and how that individual’s
26
conduct specifically violated plaintiff’s civil rights; (g) state the names of all defendants in the
27 caption and not include in the body of the Third Amended Complaint defendants who are not
also named in the caption (Fed. R. Civ. P. 10(a)); and (h) not add defendants or claims that are
28 not reasonably related to the claims asserted in prior complaints.
24
1 pleading defects set forth herein, which may result in the dismissal of this action in
2 its entirety based upon such defects.
3 Plaintiff is cautioned that plaintiff’s failure timely to file a Third
4 Amended Complaint, a Notice of Dismissal, or a Notice of Intent to Stand on
5 Second Amended Complaint may be deemed plaintiff’s admission that
6 amendment is futile, and may result in the dismissal of this action with or
7 without prejudice on the grounds set forth above, on the ground that
8 amendment is futile, for failure diligently to prosecute and/or for failure to
9 comply with this Order.
10 IT IS SO ORDERED.
11 DATED: September 25, 2023
12 _______________/s/____________________
13 Honorable Jacqueline Chooljian
UNITED STATES MAGISTRATE JUDGE
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