Petition for Writ of Certiorari — Robert R. Snyder, Petitioner v. California Department of Corrections and Rehabilitation, et al.

Supreme Court briefApr 25, 2023

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Text

-I 5

No.

In tge

Supreme Court of tl)e UntteS States

ROBERT R. SNYDER,

FILED

APR 2 5 2023

Petitioner,

VS.

V-taiM-:"

•

/■

GaLlifornia Department of Corrections

and Rehabilitation et al.,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals For

The Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

ROBERT R. SNYDER, In Pro Se

D.O.C. No. AC9136,

CSATF, COR.-P.O. Box 5244

Corcoran, CA 93212

QUESTIONS PRESENTED

• Does Federal Rules of Civil Procedure Rule 12

permit a defendant to file successive, pre-answer

Rule 12(b)(6) motion(s) to dismiss—each towards a

separate claim—six months apart?

* Where as here, if a prisoner is subject to constant

intra-facility transfers over a period of 24 months,

does this constitute 'an expected parameter of the

sentenced imposed by the trial court'?

• Is it fundamentally unfair for the District Court to

allow Petitioner's well documented claims of

custodial abuse to remain in the pleadings stage,

for 35 months before eventually dismissing the

case?

• Considering the nature and volume of the evidence

lodged into the record, should the public-official

defendants named below, be able to avoid liability

for their overt acts/omissions?

• After the United States Magistrate Judge declared

that Petitioner stated a claim, did the 'burden shift1

within the meaning of Mt. Healthy u. Doyle, for the

purposes of § 1983 retaliation claims? Where is the

constitutional line drawn between pleading

standards and burden of proof?

PARTIES TO THE PROCEEDING

Petitioner: Robert R. Snyder was the petitioner in

the lower court, the U.S. District Court for the

Central District of California, and the Ninth Circuit

Court of Appeals proceedings.

Respondents:

California Department of Corrections and

Rehabilitation,

The U.S. Court of Appeals for the Ninth

District

U. S. District Court for the Central District of

California,

California Attorney General: Robert Bonta

RELATED CASES

Robert R. Snyder vs. C.D.C.R. et al.,

In The United States Supreme Court,

Docket# 18-171. Oct. 08, 2018

(See App. 39)

Ill

TABLE OF CONTENTS

Page

PETITION FOR WRIT OF CERTIORARI . . . 1

OPINIONS AND ORDERS

Opinions and Orders from the Ninth Circuit

Court of Appeals......................................

Opinions and Orders from the U.S. District

Court, Central District of California . . . . 1

Opinion and Order from the United States

Supreme Court......................................

JURISDICTION

CONSTITUTIONAL PROVISIONS

STATEMENT OF THE CASE

. 3

REASONS FOR GRANTING CERTIORARI . . 4

ARGUMENT

A: Introduction

B: District Court Violated Rule 12

. . 7

C: The Pleadings In General and the TRO . .10

TABLE OF CONTENTS - Continued

Page

D: The Facts Presented Satisfied The

Elements For Both Retaliation And

Cruel and Unusual Punishment . . . 13

E: Miscellaneous Factors

CONCLUSION .

APPENDIX INDEX

Mandate from the United States Court Of

Appeals For The Ninth Circuit, February

16, 2023............................................................. App. 1

Order Affirming the Appeal from the

U.S. District Court for the Central District

Of California.................................................. App. 2

Order Accepting Report and Recommendation

Of U.S. Magistrate Judge Granting

Defendants’ Motion to Dismiss .... App. 5

Document 89: Report and Recommendation

Of U.S. Magistrate Judge to the Honorable

Philip Gutierrez U.S. District Judge, Case

. . App. 7

No.: CV 18-01223 PSG (RAO).

Denial of United States Supreme Court

. App. 39

Case 18-171 .

TABLE OF AUTHORITIES

Page

FEDERAL CASES

AETNA Life Ins. Co., v. All Med-Servs, Inc.,

(9th Cir., 1988) 855 F. 2d 1470, 1475 .... 8

Allen v. Iranon, 283 F.3d at 1077

Allen v. Scrib-ner,

828 F. 2d 1445 [C A 9, 1987]

Ashcroft v. Iqbal, (2009) 556 U.S. 682

BellAtl. Corp,. v. Twombly,

(2007) 550 U.S. 544 .

Black v. Payne,

591 F. 2d 83, 89, (C A 9, 2008)

Bounds v. Smith,

(1977) 430 U.S. 817, 826-27

. 10

Braggs v. Dunn, (Ala. Dist., Ct.)(2021)

562 F. Supp. 3d 1178, 1311 . .

. 15

Chilicky v. Schweiker, (1988)

796 F.2d 1131, 1136; 487 U.S. 412

Coker v. Georgia,

433 U.S. 584, 592 (1977)

Estelle v. Gamble, (1976) 429 U.S. 97

Graham v. Teledyne-Continental,

805 F. 2d 1386 (9th Cir., 1986)

Harris v. Nelson,

(1969 ) 394 U.S. 286, 291

Hebbe v. Pliler, (2010)

627 F. 3d 338 C A 9

Hope v. Pelzer, (2002)

536 U.S. 730

Hughes v. Rowe, (1980)

449 U.S. 5, 12-13

Johnson v. Copinger, 420 F. 2d 395, 399

(4th Cir., 1969) ...........................

Johnson v. City of Shelby, (2014)

574 U.S. 10, 11 (per curiam)

Johnson v. Lewis, 217 F. 3d 726

(9th Cir., 2000).................

Kristsky v. McGinnis, 313 F. Supp. 1247,

1250 (ND. New York, 1970) . .

Lands Council v. McNair, 537, F. 3d 981, 986

(9th Cir., 2008) .....................................

Maty v. Grasseli, 303 US 197, 200

McCray v. Sullivan,

509 F. 2d 1332,1337 (C A 5, 1975)

Vll

Meachum v. Fano,

427 U.S. 215 (1976)

. 13

Montanye v. Haymes,

427 U.S. 236 (1976)

Mt. Healthy City School District v. Doyle,

(1977) 50 L. Ed.2d 471..................

Myers v. American Dental Assoc.,

695 F. 2d 716, 721, (3rd Cir., 1982)

Olson v. United States,

(2008) 306 F. App’x. 360, 362

Peterson u. Highland Music, Inc.,

(9th Cir., 1998) 140 F. 3d 1313, 1318 .... 9

Pila v. G. R. Leasing and Rental Corp.,

551 F.2d 941, 943; 1st Circuit, 1977 .... 9

Rhodes v. Chapman,

452 U.S. 337 (1981)

Rizzo v. Goode,

(1976) 423 U.S. 362, 374

Sandin v. Connor,

(1995) 515 U.S. 472

Snider v. Pa., 505 F. Supp. 3d 360,

(M.D., Pa., (2020) ..............

Swierkiewicz v. Sorema N.A.,

(2002) 122 S. Ct. 992, 997

. 13, 14, 17

13, 15

6, 17, 18

Vlll

Trop v. Dulles, 356 U.S. 86, 101 (1958)

United States v. Lanier,

(1997) 520 U.S. 259

Whitley v. Albers, 475 U.S. 312, (1986)

Wilkinson v. Austin, 545 U.S. 209 (2005)

FEDERAL STATUTES

18 U.S.C. § 242

28 U.S.C. § 1254

28 U.S.C. § 2254

FEDERAL RULES

Sup. Ct. Rule 10(a)

Sup. Ct. Rule 13

Sup. Ct. Rule 30

FRCP Rule 8(a)(2)

FRCP Rule 8(e)

. 11

FRCP Rule 8(a)(2)

FRCP Rule 12(b)(6)

.7-10, 16

FRCP Rule 12(c)

FRCP Rule 12(d)

8, 16

FRCP 12(g)(2)

FRCP 12(h)

. 7

FRCP Rule 12(h)(2)(b)

8, 16

FRCP Rule 12(h)(2)(A)

FRCP Rule 12(h)(2)(C)

FRCP Rule 13

FRCP Rule 23(d)

FRCP Rule 56

FEDERAL REGULATIONS

29 C.F.R. § 1630.2 (j)(3)(iii)

PETITION FOR WRIT OF CERTIORARI

Robert Snyder respectfully petitions for a

writ of certiorari to review an appeal of the dismissal

of a civil rights complaint by the U.S. District Court

for the Central District Court of California.

OPINIONS AND ORDERS BELOW

Opinions And Orders From The Ninth

Circuit Court of Appeal.

This Court’s Mandate was filed on

Feb. 16, 2023. The finalizing of its judgment of the

matter is attached at App. 1

The Jan 25, 2023 Court Order

affirming the District Court’s dismissal of plaintiff

appellants’ civil rights claims on direct appeal for

case No.: 21-55087, is attached at App.’s 2-4

Opinions And Orders From The United

States District Court, Central District Of

California.

The January 05, 2021 Order

dismissing the plaintiffs Third Amended Complaint

for monitory relief is attached at App. 5-6.

The November 25, 2020 Order

recommending the dismissal of the Third Amended

Complaint by the Magistrate Judge is attached at

App.’s 7 through 38. Case No. : CV-18-01223

Opinion and Order of the United States

Supreme Court.

The October 09, 2018 Order and

Opinion following the denial of TRO and affirmancy

of the original appeal. Case No.: 18-171. The order

is found at App. 39.

JURISDICTION

This petition is authorized by United States

Supreme Court rules, Rule 10(a). subd. (a) and is

timely filed in accordance with Rule 13 and 30.

Jurisdiction is conferred upon this court by 28 U.S.C.

Section 1254.

CONSTITUTIONAL PROVISIONS

This case involves issues directly related to

the Seventh, Eighth and Fourteenth Amendments to

the United States Constitution. The Seventh deals

with the right to a civil trial before a jury. The

Eighth guarantees freedom from cruel and unusual

punishment, and the Fourteenth requires that no

state shall make or enforce any law, which shall

abridge the privileges of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws.

STATEMENT OF THE CASE

The following is a procedural history

necessary for the resolution of the questions pre

sented. Petitioner sought both prospective relief and

monetary damages against multiple defendants in

conjunction with a request for a Temporary Rest

raining Order: pursuant to a complaint brought

under 42 USC § 1983, filed on February 14th, 2018.

Six days later, the District Court for the Central

District of California, dismissed the TRO which

petitioner appealed in Case No.: C A 9, 18-55335;

Certiorari Denied case no.: 18-171. Many times

throughout the proceedings, petitioner's objections

made reference to his constitutional rights being

violated.

The course of the proceedings was extensive

but most notably, after a March 8th, 2019 Second

Amended Complaint, "SAC" the USMJ declared

shortly afterward: that petitioner stated First and

Eighth amendment claims against various prison

officials; while dismissing other claims.1 On July

15th, 2019 the District Judge approved those

findings. The Defendants filed their Motion to

Dismiss under Rule 12(b)(6) although it engaged in a

factual dispute, on December 12th, 2019. This

motion, was based solely on the defendant's plea

towards the First Amendment claim. Petitioner

contends that the defendants, through their

attorneys, waived their defense against Plaintiffs

Eighth Amendment claims because it was not

included in document 72.

Both civil charges derive from a single set of facts.

On February 15th, 2020 the USMJ screened

out the SAC. Next, petitioner filed his Third Amen

ded Complaint, "TAC" on April 13th, 2020. The

defendants then filed a second 'motion to dismiss1

under Rule 12(b)(6) on April 30th, 2020. That

motion was answered on June 23rd, 2020 by a 30

page, detailed opposition. (Doc. 86) The USMJ

waited 5 months to issue her Report 2 and Recom

mendations (Doc. 89), which the district court

accepted on January 5th, 2021 and the judgment/

approval of findings issued the same day, (Doc. 93,

94). Petitioner filed a timely notice of appeal and

opening brief. His appeal was affirmed on February

16th, 2023.

Reasons for Granting Certiorari

The facts giving rise to the matter before the

court present important questions not only to the

administration of a state prison, but also regarding

civil procedure. As well, the petitioner's lack of

success in the lower courts deprived him of a remedy

for various injuries. The case started after petitioner

gathered evidence of custodial misconduct beginning

with a continuous series of arbitrary intra-facility

transfers; also known as 'bed moves' by prison

employees. This pattern of otherwise discriminatory

housing practices also included incompatible

cellmates along with frequent institutional transfers;

from one prison, to another. What else besides

retaliatory intent could motivate these officials of the

California Department of Corrections, "CDCR" to act

2 This unsupported report went far beyond ‘piercing the

pleadings’.

in the manner described? To this day, petitioner has

been housed in nearly a hundred different cells

throughout the California prison system. The

complaint alleged that prison officials under color of

state law, deliberately placed petitioner at risk3 for

harm.

Although the task of gathering evidence and

researching the law while required to submit to

CDCR's many forced evictions, is very difficult. . ,

petitioner managed to do so. The factual evidence of

injures sustained during this critical period was not

allowed past the pleading stage for 35 months before

it was dismissed with prejudice except for one John

Doe defendant. Then after an extensive opening

brief, the Appellate Court for Ninth Circuit waited

approximately 19 months before issuing a 173 word

order, affirming the unreasoned decision by the

district court. Whether the court gave this important

matter more than a brief moment of consideration is

not discernable from their written decision. This

case involves an interesting combination of elements;

one not easy to plead. However, petitioner complied

with his procedural responsibilities to notify the

defendants of his claims despite his status of pro se.

It is questionable whether the district judge in this

case, should have recused himself. Judge Gutierrez

also dismissed petitioner's direct appeal claims in a

2015, 28 U.S.C. § 2254 proceeding.

3 To an extent that offends “contemporary concepts of

decency,..” Hope infra, (2002) at p. 742.

Argument

A: Introduction

Petitioner diligently pursued justice in this

matter over the course of 5 years because of the

strength of evidence; 4 (2) the nature of the depri

vations, and (3) the intentions of the state actors

operating the control board. Throughout his detailed

objections, he complimented the pleadings. Petitioner

also raised his concerns in question form at every

possible juncture; regarding many specific areas

where his rights were violated. Despite all of his good

faith effort, the motion(s) to dismiss echoed the

Magistrate's 1915A(b) and petitioner was effectively

prohibited from the discovery of additional evidence.

Although not required,5 petitioner sensed

the need to proffer much of evidence along with the

complaint in 2018 as though it were a writ petition.

Each time the district court requested an amend

ment, the filing party attached yet more evidence...

The lower courts' duty to construe an unrepresented

litigant's concerns liberally, was spoken highly of in:

Hughes v. Rowe, (1980) 449 U.S. 5, 12-13; quoting

Estelle v. Gamble, (1976) 429 U.S. 97. Additionally,

the law library was often difficult to access; because

of that, petitioner had to request several extensions

of time. “[Ajccess to court is a fundamental right and

all other rights of prisoners are illusory without it."

4 Such that was not subject to reasonable dispute; e.g.,

see photograph at ECF Doc. 1 at p. 16.

5 See, Swierkiewicz v. Sorema N.A., (2002) 122 S. Ct.

992, 997.

McCray v. Sullivan, 509 F. 2d 1332,1337 (C A 5,

1975). In every respect, the district court placed an

unfair pleading burden upon the plaintiff in this

case.

Although the district court eventually

allowed, then plaintiff, to proceed—on at least one

claim—against all defendants, their implausibility

theory was later upheld. That happened after two

separate, distinct events where the defendant's

contentions were: plaintiffs claims did not state a

cause of action under FRCP, Rule 12(b)(6). None

theless, we must remember—Supreme Court Justice

Hugo Black, in a 1937 case stated that, "pleadings

are intended to serve as a means of arriving at fair

and just settlements of controversies between two

litigants. They should not raise barriers which

prevent the achievement of that end." Maty v.

Grasseli, 303 US 197, 200 supports the claim. The

trial court’s construction of the pleadings did not

accomplish justice; FRCP, Rule 8(e).

B: District Court Violated Rule 12

Despite the issue being currently a legal

gray-area, petitioner's argument is that the district

court violated the language of FRCP, Rule 12(g) and

(h) by entertaining a second opportunity to make a

pre-answer defense to plaintiffs civil rights’ claims.

The violation of this fundamental rule of procedure

erodes fundamental fairness elicited by at least one

of the Fourteenth Amendment's numerous clauses.

Was the 6-month gap between motions, a tactical

delay? By waiting, did the respondents waive their

right to challenge the Eighth Amendment claim

under Rule 12(b)(6)?

Rule 12(g)(2) (limitations on further motions)

lists subd.(h)(2)6 as an exception—however, it still

does not supply clear textual authority to make two

or more 'pre-answer, Rule 12(b)(6) motions to

dismiss'. In fact, it does not nearly imply permission

to do what the deputy attorney general did in this

case. A second such motion after an answer is

furnished seems fairly permissible by the civil rules.

So let us look to the decisions of various

authorities on the matter. Citing from Federal Civil

Practice. Before Trial: Rutter Group 2015, regarding

this issue: petitioner finds (1) Courts may infer from

delay that any motion lacks merit; § 9.49 and (2)

Rules are intended to eliminate unnecessary delay at

the pleading stage by minimizing the number of pre

trial motions. See, AETNA Life Insurance Co., v. All

Med-Servs, Inc., (9th Cir., 1988) 855 F. 2d 1470, 1475

fn. 2(successive rule 12 motions usually not permited), (id. § 9). In the opening brief,7 petitioner

addressed this issue and favorably quoted the 9th

Circuit’s (1986) Chilicky v. Schweiker case, 796 F.2d

1131, 1136; 487 U.S. 412, (1988) reversed on other

grounds.

Concerning other circuits, "...the court

concluded that under Rule 12(g) and (h), the failure

6 Pertinent to this case—Rule 12(h)(2)(B) refers back to

Rule 12(c).

The issue was first preserved by objection in the

District Court; Doc. 86 at p. 5.

to raise the defense below was 'a fundamental and

incurable matter'." (Pila v. G. R. Leasing and Rental

Corp., 551 F.2d 941, 943; 1st Circuit, 1977); accord—

Myers v. American Dental Assoc., 695 F. 2d 716, 721,

(3rd Cir., 1982). Those strong words imply reversible

error.

Because the respondents took an extra 6

months to research a defense to petitioner's Eighth

Amendment claims, the question is whether or not,

this " 'deliberate failure to not raise the claim earlier'

was an attempt to sandbag the court..," as a proced

ural strategy; Cf. Peterson v. Highland Music, Inc.,

(9th Cir., 1998) 140 F. 3d 1313, 1318.

Pars interponere certainly did not receive

any special procedural advantages during the

pendency of the lawsuit. As well, both of the Rule

12(b)(6) motions in question.., contained highly subjective, debatable conclusions.8 In response,

Petitioner counters with, "... the day and night

defendants have succeeded in obtaining the very

delay which Rule 12 was designed to prevent,

although in fairness it did not seek the relief it

received. Their only response here is a technical one:

that the motion filed, though denominated a 'motion

to dismiss' was nevertheless more properly a motion

for summary judgment, under Rule 56..." Rule 56. In

the same spirit, a factual attack against pleadings

using a motion to dismiss under Rule 12(b)(6) was a

speaking motion when its argument for dismissal

referred to materials beyond the pleadings; Fed. R.

Civ. P., Rule 12(d), see also Olson v. United States,

These conclusory wish-lists furnished elaborate

commentary as to easily disputable points of contention.

(2008) 306 F. App’x. 360, 362, quoting Black v.

Payne, 591 F. 2d 83, 89, (2008): both Ninth Circuit

cases.

A comparison to Habeas jurisprudence:

respondent should be "obligated to present facts that

his earlier failure to raise his claims, is excusable..."

{Johnson v. Copinger, 420 F. 2d 395, 399)(4th Cir.,

1969). With the foregoing in view, did the lower

court violate petitioner's due process when it per

mitted a second Rule 12(b)(6) motion that posited a

separate, previously-available defense? The split in

authority here across the board as to this question,

might require treatment by this court for resolution.

C: The Pleadings In General and the TRO

"...This court's experience indicates that pro

se petitioners are capable of using law books to file

cases raising claims that are serious and legiti

mate..." In spite of this venerated viewpoint,9 the

district court improperly held him to a higher

pleading standard. The quality of the pleadings was

subjected to a lengthy verbal exchange in the lower

court's lodgment. The phrase, "failed to state a

claim" is itself subject to broad interpretation by

district judges. Petitioner believes, the noted phrase

should only be used to leverage legally and

structurally flawed, case-initiating documents.

Instead, the district court allowed the people to make

a detailed critique of the allegations. . , and whether

or not petitioner could prove them.

Whether fined tuned or not, the pleadings

are only designed to place the defendant(s) on notice

Bounds v. Smith, (1977) 430 U.S. 817, 826-27.

of a pending claim. The series of amended pleadings

more than sufficed. This court undoubtedly has

heard limitless controversy as to whether or not a

litigant's pleadings can withstand scrutiny by the

often cited Bell Atl. Corp,. v. Twombly, (2007) 550

U.S. 544 and Ashcroft v. Iqbal, (2009) 556 U.S. 682—

so germane writer will spare it of any unnecessary

arguments. Petitioner cannot attach hundreds of

pages of lower court transcripts in support of his

argument here; he went above and beyond submit

ting a plausible complaint by proffering multiple

declarations and other key pieces of evidence to

prove improper motivation. Never once did the court

in its screening, nor the respondent in their papers,

mention the amplified factual showing requirements

explained in Igbal id. at p. 670 that it implied the

complaints lacked.

The appellate court quoted Hebbe v. Pliler,

627 F. 3d 338; C A 9, (2010) in its decision to affirm,

further stating that it reviewed the matter denovo,

(pp.). However, until discovery has been completed,

technically it cannot be determined what facts have

been established, for review, "...requires the review

ing court to draw upon its judicial experience and

common sense. It must allege more than a mere

possibility of misconduct." (Iqbal at p. 679). This

quote was used to dismiss the instant case. It seems

to be common sense that over 20 moves in 24

months, is more than a possibility of misconduct...

In addition, Johnson v. City of Shelby, 574

U.S. 10, 11 (2014)(per curiam) relates, "Federal

pleadings rules call for a 'short and plain statement

of the claim showing that the pleader is entitled to

relief " FRCP, 8(a)(2) ... and citing a legal treatise,

the court further provides, "Federal Rules of Civil

Procedure 'are designed to discourage battles over

form of statement," not to mention how much more

this should apply to pro se, prisoner litigants whom

are ‘usually handicapped in developing the evidence’;

Harris v. Nelson, (1969 ) 394 U.S. 286, 291. As for a

factual mixture, under the stressful circumstances

described in the challenged proceedings, it is difficult

to plead with laser precision, clear descriptions to

match the prevailing legal standards. The defend

ants were notified and provided with detailed

allegations—those hardened by corresponding proof

attached to the complaint. The merit of the suit was

prejudiced by both delay and dismissal.

In February of 2018, the initial request was

for injunctive relief only. A request for monetary

damages did not take place until the first amended

complaint, many months later because of the

addition of new defendants and new developments of

the evidence. The denial of the TRO, was a

discouraging sign as to the court's view of the merits.

The Ninth Circuit's decision to proceed to hear an

opening brief regarding denial of the TRO,10

suggested the claims had some qualifications.

However, the question remained, whether or not

"...the denial of the (TRO) effectively decided the

merits of the case." [Graham v. TeledyneContinental, 805 F. 2d 1386 (9th Cir., 1986)]. In any

event, for a case where this question arises out of

well-documented facts.., it would appear very

prejudicial to leave a case stagnant for 35 months

See, Lands Council v. McNair, 537, F. 3d 981, 986

(9th Cir., 2008)(denial of preliminary injunctive relief is

subject to the abuse of discretion review).

instead of allowing the appeal court to review the

whole matter.

D: The Facts Presented Satisfied The

Elements For Both Retaliation And

Cruel and Unusual Punishment.

"The unnecessary and wanton infliction of

pain.., constitutes cruel and unusual punishment

forbidden by the Eighth Amendment." Whitley v.

Albers, 475 U.S. 312, (1986). "We have said that

among unnecessary and wanton inflictions of pain

are those that are 'totally without penalogical

justification.'" Rhodes v. Chapman, 452 U.S. 337

(1981). The "... Eighth Amendment ‘must draw its

meaning from the evolving standards of decency that

mark the progress of a maturing society.’ ” Trop v.

Dulles, 356 U.S. 86, 101 (1958)(plurality opn.)

Because the facts of this case involve incessant

transfers, the inevitable liberty interest inquiry is

applicable. See, videlicet—Sandin v. Connor, 515

U.S. 472 (1995); Meachum v. Fano, 427 U.S. 215

(1976); Wilkinson v. Austin, 545 U.S. 209 (2005);

Montanye v. Haymes, 427 U.S. 236 (1976). This

principle applies whether the transfer is disciplinary

in nature and when a transfer to a lower security

environment is arbitrarily denied. . . It is axiomatic

that no legitimate correctional goal11 can be served

by what happened between 2016 and 2019, in the

instant case.

It is worth noting, petitioner was not allowed

The regulatory prohibition against the refusing

housing assignments does not permit officials to

constantly order prisoners to move around.

the benefit of the discovery phase to cement the

facts, yet what was provided was indisputable

evidence to prove not only an obvious risk, but also

serious injuries. In fact, this serious situation could

have warranted a criminal investigation under 18

U.S.C. § 242. Hope v. Pelzer, (2002) 536 U.S. 730,

quoting United States v. Lanier, (1997) 520 U.S. 259

(a § 18 U.S.C. case) makes clear that officials can be

on notice that their conduct violates clearly estab

lished law, even in novel factual situations.”

(emphasis added) Petitioner sub-judice is quite sure

that the case ad manum presents at least one issue

of first impression.

Petitioner nonce, had to infringe upon the

housing policy,12 15 Cal. Code Regs., § 3005(c)

(Resisting housing) in order get more proof and a

hearing in connection with these events. Petitioner

never resisted any lawful order. He was sent to

administrative segregation for refusing to move from

the third floor 13 to the first floor at 9 p.m.; on the

heels of another move 9 days earlier. On that note,

“The constitution contemplates that in the end (a

court’s) own judgment will be brought to bear on the

question of the acceptability ‘of a given punishment’.”

Rhodes (1981) supra at p. 346 quoting Coker v.

Georgia, 433 U.S. 584, 592 (1977). But such “judg

ments should be informed by objective factors to the

maximum possible extent.” (Rhodes ibid.) To be

CDCR’s housing policy is implemented using ‘force

and violence’; Cf. Rizzo v. Goode, (1976) 423 U.S. 362, 374.

13 The whole basis behind the demand for this move

was pre-textua.1; Cf. Allen v. Iranon, 283 F.3d at 1077.

Shortly after returning from Ad-Seg, petitioner was sent

back to the exact, same third-floor cell.

perfectly objective, petitioner honestly needed to find

an urgent remedy for the continuous cycle of housing

hardships in order to preserve his life interest.

Furthermore, all “these principles apply

when the conditions of confinement compose the

punishment at issue,” {id. at 347). Thus, as a direct

result of the defendant's actions described in the

§ 1983 complaint, petitioner suffered physical,

emotional, and mental injuries as well as damage to

his property. By emotional, he means shock to his

nervous system because of fear, anxiety, sleepless

ness, and embarrassment. By mental, . . he was

subjected to the extraordinary burden of searching

frantically for legal solutions without an attorney; in

addition to the normal daily activities of prison life.

In order to obtain evidence, he was wrongly discip

lined and confined to quarters as well, for 90 days.

"The right to be heard before being condemned to

suffer a grievous loss of any kind, is a principle basic

to our society..," applies in this context. (Kristsky v.

McGinnis, 313 F. Supp. 1247, 1250 (N.D., New York,

1970)). What these officials did, shows how id. §

3005 'conferred standardless discretion on

corrections personnel,' Sandin supra, at p. 482.

All of this against another factual

background: at all relevant times, petitioner is a

member of the Coleman and Armstrong protected

class; vulnerable due to physical and mental

impairments. (Cf., 29 C.F.R. § 1630.2 (j)(3)(iii)).

Petitioner for over a decade has had diagnoses on file

for major depression, bi-polar, along with physical

limitations. Petitioner has found a few relevant

decisions. First, Braggs v. Dunn, 562 F. Supp. 3d

1178, 1311 (Alabama Dist., Ct., 2021); "testimony..,

describing frequent transfers for no apparent

reason," and "—ADOC's current approach demon

strates insufficient consideration of the effect

transfers may have on mentally ill inmates." Also,

see another very interesting case: Snider v. Pa., 505

F. Supp. 3d 360, (M.D., Pa., (2020)(Numerous trans

fers, allegedly as a retaliatory device; excessive force

and discrimination); partial accord—Allen v.

Scribner, 828 F. 2d 1445 [C A 9, 1987]. Sadly, Joel

Snider lost his battle with mental illness on March

31st, 2021 while in an isolation module at Houtzdale

penitentiary in Pennsylvania; see Prison Legal

News; Vol. 33 (April 2022, p.60).

E: Miscellaneous Factors

Rule 12(h)(2)’s limitation14 function basically

explains when ‘other’, ‘failure to state a claim’,

dismissal motions can be ‘raised’... thus, the pivotal

language here is from subd.(h)(2)(B), which refers

back to Rule 12(c): and Rule 12(c) begins with the

words, “After the pleadings are closed...”. Id. (h)(2)’s

other exceptions under (h)(2)(A) and (h)(2)(C) are

irrelevant to this issue. This seems to imply that

second or successive motions under Rule 12(b)(6) are

prohibited until after an answer is furnished by the

defendant.

If an argument were advanced as to the

extremity or lack thereof involved with one cell move

or prison transfer; that would be inconsiderate of the

accumulation of its long-term effect. Johnson v.

Lewis, 217 F. 3d 726 (9th Cir., 2000)(Noting that

Violation of Rule 12(h) constitutes waiver of a

delayed defense.

"more modest deprivations can form the basis of a

violation, but only if such deprivations are lengthy

and ongoing.") Up until the current day, the CDCR

continues their enforcement of illegal housing

policies, against petitioner Snyder.

Also, the district court applied the overly

complicated standard in Rhodes v. Robinson, 408 F.

3d 559 (9th Cir., 2005) eventually denying the claim

about retaliatory intentions of those involved; which

includes two well informed prison wardens, an

assistant warden, a few sergeants and other exper

ienced officers. More appropriately, this court’s very

succinct standard in Mt. Healthy15 City School

District v. Doyle, (1977) 50 L. Ed.2d 471, should

apply with distinction because it greatly simplifies

the inquiry: Would the challenged conduct have

occurred absent the first amendment activities?

Instead, the district court unduly held this case to

the 5-element standard in Rhodes, which results in

the weakened enforcement of First Amendment

retaliation cases. After the US Magistrate allowed

the parties to be served a summons, the burden

arguably shifted to the parties responsible for all the

unexplained evictions; to furnish evidence refuting

the presumably unconstitutional sequence of events.

Petitioner had submitted multiple grievances and

notices all throughout this sequence.

In a criminal case, defense attorneys

normally cannot tell the prosecution it did not

‘adequately allege’ a prima facie case against a

defendant caught red-handed. It thus seems

Nothing in this case expressly limits the relevant

holding, to only Title VII controversies.

incongruous to “require a plaintiff—in order to

survive a motion to dismiss—to plead more facts

than he may ultimately need to prove to succeed on

the merits if direct evidence of discrimination is

discovered.” (Id. Swierkiewicz at p. 997.) Therefore,

in this sense, civil pleadings are not much different.

In a case with serious allegations, the court should

not determine by a reading of the pleading alone. .,

‘whether a claimant is entitled to offer evidence to

support the claims.’ (Ibid.)

Of special import is (Doc. No.: 89). This

extensive opposition to the defendant's second

'motion to dismiss' should have adequately replied to

any remaining doubts the district court may have

had as to the objective/subjective factors underlying

both the allegations and the tangible evidence. The

appellate court’s affirmance does not adequately

reflect the merit of petitioner’s opening and reply

briefs.

Conclusion

Petitioner’s due process rights were violated

when the appellate court overlooked the district

court’s prejudicial errors including its refusal to

protect his rights and hear his case through trial. In

light of the foregoing argument, the petitioner’s

request is that the court would grant Certiorari to

favorably resolve the questions presented.

Ubi cessat remedium ordinarium, ibi decurritur ad

extraordinarium

Thank you for the opportunity to be heard.

Respectfully Submitted,

ROBERT R. SNYDER, Pro Se

D.O.C. No. AC9136

CSATF, COR/F-Yard

P.O. Box 5244

Corcoran, CA 93212

APPENDIX TABLE OF CONTENTS

Mandate from the United States Court Of

Appeals For The Ninth Circuit, February

16, 2023......................................................... App. 1

Order Affirming the Appeal from the

U.S. District Court for the Central District

Of California

. App. 2

Order Accepting Report and Recommendation

Of U.S. Magistrate Judge Granting

Defendants’ Motion to Dismiss .... App. 5

Document 89: Report and Recommendation

Of U.S. Magistrate Judge to the Honorable

Philip Gutierrez U.S. District Judge, Case

No.: CV 18-01223 PSG (RAO).

. . . App. 7

Denial of United States Supreme Court

Case 18-171.........................................

App. 39

App. 1

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT R. SNYDER,

Plaintiff - Appellant,

CALIFORNIA DEPARTMENT

OF CORRECTIONS AND

REHABILITATION; et al.,

Defendants - Appellees.

No. 21-550878

D.C. No. 2:18-cv01223-PSG-RAO

U.S. District

Court for Central

California, Los

Angeles

MANDATE

FILED

The judgment of this Court,

entered January 25, 2023,

FEB. 16 2023

takes effect this date. This

constitutes the formal mandate

of this Court issued pursuant to

Molly C. Dwyer,

Rule 41(a) of the Federal Rules

Clerk U.S. Court of

of Appellate Procedure.

Appeals

Costs are taxed against the

appellant in the amount of $209.20.

FOR THE COURT:

MOLLY C. DWYER

CLERK OF COURT

By: Rebecca Lopez

Deputy Clerk

Ninth Circuit Rule 27-7

App. 2

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

JAN 25 2023

Molly C. Dwyer,

Clerk U.S. Court

of Appeals - Not

For Publication

ROBERT R. SNYDER

Plaintiff - Appellant,

CALIFORNIA DEPT. OF

CORRECTIONS AND

REHABILITATION;

D. ASUNCION, Warden at CA

State Prison, L.A. County,

Individual; JOSIE GASTELO

Warden, Individual; D.

SCHEIFFELE Sergeant, Indiv.

P. WARD, Sergeant, Indiv.;

B. FLOERCKY, Acting Sgt.,

Indiv.; B. PHILLIPS, Assoc.

Warden, Individual; ACUNA

Duty Sgt., Individual;

Case No.:

21-55087

D.C. No. 2:18-cv01223-PSG-RAO

MEMORANDUM*

Defendants - Appellees.

Appeal from the United States District Court

for the Central District of California

App. 3

Phillip S. Gutierrez, District Judge, Presiding

Submitted January 18, 2023

Before: GRABER, PAEZ and NGUYEN, Circuit

Judges.

This disposition is not appropriate for

publication and is not precedent excepts provided by

Ninth circuit Rule 36-3.

The panel unanimously concludes this case is

suitable for a decision without oral argument. See

Fed. R. App. P. 34(a)(2)

California state prisoner Robert R.

Snyder appeals pro se from the district court’s

judgment dismissing his 42 U.S.C. sec. 1983 action

alleging retaliation and deliberate indifference to his

health. We have jurisdiction under 28 U.S.C. sec.

1291. We review de novo a dismissal under Federal

Rule of Civil Procedure 12(b)(6). Hebbe v. Pliler, 627

F. 3d 338, 341 (9th Cir. 2010). We Affirm.

The district court properly dismissed

Snyder's action because Snyder failed to allege facts

sufficient to state a plausible violation of his

constitutional rights. See Watison v. Carter, 668 F.

3d 1108, 1114 (9th Cir. 2012)(to establish retaliation,

plaintiffs must allege "a causal connection exists

between the protected conduct and the adverse

action."; Toguchi v. Chung, 391 F. 3d 1051, 1056-60

(9th Cir. 2004)(a prison is deliberately indifferent

only if he or she knows of and disregards an

excessive risk to inmate health).

The district court did not abuse its

discretion by dismissing Snyder's complaint without

leave to amend because amendment would have been

App. 4

futile. See Cervantes v. Countrywide Home Loans,

Inc., 656 F. 3d 1034, 1041 (9th Cir. 2011)(setting

forth standard of review and explaining that

dismissal without leave to amend is proper when

amendment would be futile).

AFFIRMED.

App. 5

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

ROBERT R. SNYDER,

Plaintiff,

CA DEPT. OF

CORRECTIONS,

AND REHABIL

ITATION, et al„

Case No. CV 18-01223

PSG (RAO)

ORDER ACCEPTING

REPORT AND RECOM

MENDATION OF U.S.

MAGISTRATE JUDGE

Defendants.

Pursuant to 28 U.S.C. sec. 636, the court

had reviewed the Third Amended Complaint, Dkt.

No. 81; the Motion to Dismiss filed by Gastelo,

Asuncion, Scheiffele, Phillips, Ward, Floercky, and

Esquerra (collectively, "Defendants"), Dkt. No. 82;

Plaintiffs Opposition to the Motion to Dismiss,

Dkt. No. 86; Defendant's Reply, Dkt. No. 87; the

Report and Recommendations of United States

Magistrate Judge ("Report"), Dkt. No. 89;

Plaintiffs Objections to the Report, Dkt. No. 90;

Defendant's Reply to Plaintiffs Objections, Dkt.

92; and all of the other records and files herein.

Further the Court has made a de novo determin

ation of those portions of the Report to which

Plaintiff has objected. The Court is not persuaded

by Plaintiffs Objections and hereby accepts and

adopts the Magistrate Judge's findings, conclus

ions and recommendations.

App. 6

Accordingly, IT IS ORDERED that:

(1) Defendants' Motion to Dismiss is GRANTED;

(2) Plaintiffs Third Amended Complaint is

dismissed with prejudice as to Defendants

Gastelo, Scheiffele, Phillips, Ward, Floercky,

and Esquerra; and

(3) Plaintiffs Third Amended Complaint is

dismissed without prejudice as to Acuna/John Doe.

DATED: 1/5/21.

/s/

PHILIP S. GUTIERREZ

UNITED STATES DISTRICT JUDGE

App. 7

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

ROBERT R. SNYDER,

Case No. CV 18O1223-PSG(RAO)

Plaintiff,

CA DEPT OF CORRECT

IONS AND REHABILI

TATION et al.,

Defendants.

REPORT AND RE

COMMENDATION

OF U.S. MAGIST

RATE JUDGE [82]

This Report and Recommendation is

submitted to the Honorable Philip Gutierrez, United

States District Judge, pursuant to 28 U.S.C. § 636

and General Order 05-07 of the United States

District Court for the Central District of California.

I. INTRODUCTION

On February 14, 2018, Plaintiff Robert R.

Snyder (“Plaintiff’), a California state prisoner

proceeding pro se, filed a complaint pursuant to 42

U.S.C. § 1983. Dkt. No. 1. Plaintiffs complaint was

dismissed twice with leave to amend. Dkt. Nos. 22,

33. On July 15, 2019, certain claims of the Second

Amended Complaint (“SAC”) were dismissed without

leave to amend. Dkt. No. 50. Plaintiff was permitted

to serve the SAC on the named defendants. Dkt. No.

52. A motion to dismiss the SAC was filed. Dkt.

App. 8

No.72. The Court dismissed the retaliation claims

and provided Plaintiff the option to proceed on the

remaining Eighth Amendment claims or to file a

further amended complaint. Dkt. 78.

On April 13, 2020, Plaintiff filed a Third

Amended Complaint (“TAC”), the operative

complaint in this action. Dkt. 81. The TAC is

brought against: Wardens J. Gastelo (“Gastelo”) and

D. Asuncion (“Asuncion”); Sergeants D. Scheiffele

(“Scheiffele”), B. Phillips (“Phillips”), P. Ward

(“Ward”), B. Floercky )”Floercky”), and Acuna/John

Doe (“Acuna”); and C.O. A. Esquerra (“Esquerra”).

Id. All defendants are sued in their individual

capacities. Id.

Defendants Gastelo, Asuncion, Scheiffele,

Phillips, Ward, Floercky, and Esquerra (collectively,

“Defendants”) filed a Motion to Dismiss the TAC

(“Motion”) on April 30, 2020. Dkt. No. 82. Plaintiff

filed his Opposition (“Opposition”) on June 23, 2020.

Dkt. No. 87. For reasons set forth below, the court

recommends that Defendants’ Motion be granted.

II. LEGAL STANDARD FOR

MOTION TO DISMISS

Federal Rule of Civil Procedure 12(b)(6)

permits dismissal, as a matter of law, “where the

complaint lacks a cognizable legal theory or

sufficient facts to support a cognizable legal theory.”

Mendiondo v. Centinela Hosp. Medical Center, 521

F.3d 1097, 1104 (9th Cir. 2008) (citation omitted). To

survive a Rule 12(b)(6) motion, a plaintiff must

allege enough facts to state a claim that is plausible

on its face. Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007).

A claim is facially plausible when a plaintiff “pleads

App. 9

factual content that allows the court to draw the

reasonable inference that the defendant is liable for

the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.

662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)

(citing Twombly, 550 U.S. at 556). Plausibility does

not mean probability, but does require “more than a

sheer possibility that a defendant has acted unlaw

fully.” Id. A pleading that offers mere “labels and

conclusions” or “a formulaic recitation of a cause of

action’s elements will not do.” Twombly, 550 U.S. at

555.

In considering a motion to dismiss, a court

must accept all factual allegations in the complaint

as true “and construe the pleadings in the light most

favorable to the nonmoving party.” Knievel v. ESPN,

393 F.3d 1068, 1072 (9th Cir. 2005). Pro se plead

ings, “however inartfully pleaded, must be held to

less stringent standards than formal pleadings

drafted by lawyers.” Erickson v. Pardus, 551 U.S.

89, 94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007)

(per curiam) (citation omitted). But the liberal

pleading standard “applies only to a plaintiffs

factual allegations.” Neitzke v. Williams, 490 U.S.

319, 330 n.9, 109 S. Ct. 1827, 104 L. Ed. 2d 338

(1989). The Court will not accept as true

unreasonable inferences or legal conclusions cast in

the form of factual allegations. Ileto v. Glaock Inc.,

349 F.3d 1191, 1200 (9th Cir. 2003). In giving liberal

interpretations, a court may not supply essential

elements of a claim not initially pled. Pena v.

Gardner, 976 F.2d 469, 472 (9th Cir. 1992).

In considering a motion to dismiss, “[t]he issue

is not whether a plaintiff will ultimately prevail but

whether the claimant is entitled to offer evidence to

support the claims. Indeed it may appear on the face

of the pleadings that a recovery is very remote and

App. 10

unlikely but that is not the test.” Scheuer v. Rhodes,

416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d

90 (1974), overruled on other grounds, Davis v.

Scherer, 468 U.S. 183, 104 S. Ct. 3012, 82 L. Ed. 2d

139 (1984).

The court may consider exhibits attached to

the complaint and incorporated by reference, see

Petrie v. Electronic Game Card, Inc., 761 F.3d 959,

964 n.6 (9th Cir. 20-14), Fed. R. Civ. P. 10(c), but is

not required to blindly accept conclusory allegations,

unwarranted deductions of fact, or unreasonable

inferences, nor accept as true allegations that are

contradicted by the exhibits attached to the

complaint. Sprewell v. Golden State Warriors, 266

F.3d 979, 988 (9th Cir. 2001).

III. SUMMARY OF RELEVANT ALLEGATIONS

Plaintiff alleges that there is a common

nucleus of facts for his First and Eighth amendment

claims that repeat from one prison to the next and

that Plaintiff has notified the Wardens through

multiple written forms of communication. TAC at 5.

Defendant Scheiffele, California Men’s

Colony (“CMC”)

Plaintiff alleges that Scheiffele was the

originator of the improper activity, namely improper

multiple cell moves. TAC at 9. Scheiffele worked

with C.O. Poindexter on the first improper move.1

Id. Plaintiff filed a 602 grievance on December 23,

2015 against Poindexter which also referenced

Scheiffele as “Sgt.” Id. The grievance was exhausted

Poindexter is not a named defendant in this action.

App. 11

to the Third Level. Id. Plaintiff also filed a petition

for a writ of mandate in the San Luis Obispo Super

ior Court in July 2016 that alleged “Poindexter and

his supervisors” engaged in retaliation. Id. at 5, 9

Almost immediately, a long series of additional im

proper moves took place. Id. at 9. Between Jan. 17,

2016 and Nov. 16, 2016, there were nine cell trans

fers. Id.

Scheiffele was responsible for initiating two

night moves on January 17, 2016 and November 16,

2016, both on evenings after Plaintiff spent the day

visiting with family. Id.at 9, 11.

In August 2016, Scheiffele harassed Plaintiff

in a way that was similar to Poindexter’s actions on

July 30, 2016. Id. at 10. Poindexter had threatened

Plaintiff with arbitrary punishments if he did not

remove a draft sealant from a plumbing chase and

later wrote three Rules Violation Reports (“RVR’s”)

for ‘bad cause.” Id.

After the California Department of

Corrections and Rehabilitation (“CDCR”) dismissed

the complaint against Scheiffele and Poindexter, the

two worked together on Sept. 18, 2016 and alleged

that Plaintiff resisted a move. Id. at 9. This would

not have happened had Scheiffele not ordered

Plaintiff back to Poindexter’s floor. Id.

Plaintiff contends that many of the 16 moves

he had while at CMC for 27 months were in violation

of a Movement Warning regarding stairs, his seizure

risk, and his slip and fall risk because he had to

carry his boxes of property up or down stairs, making

six to eight trips. Id. at 8, 9.

Ill

III

App. 12

Defendant Ward, CMC

Plaintiff alleges that Ward completed the two

night moves on Jan. 17, 2016 and Nov. 6, 2016 that

Scheiffele initiated. TAC at 9, 11. These moves took

place at 3:00 p.m. after Plaintiff finished visiting

with his family. Id. at 9. Ward threatened to throw

away Plaintiff s property and place him in adminis

trative segregation if he refused to move. Id. at 11.

Plaintiff then became scared to write additional 602

appeals. Id. Plaintiff contends that Ward’s actions

were not necessary as no one was usually moved into

Plaintiff clean cells as soon as he vacated. Id.

Plaintiff argues that many of these moves also

violated the Movement Warning. Id.

Defendant Phillips, CMC

Plaintiff alleges that Phillips ordered Floercky

to move Plaintiff at 7 p.m. on Nov. 10, 2016. TAC at

8. The Watch commander assured Plaintiffs mother

on Nov. 10, 2016 that no inmates would be moving at

night. Id. at 7. Plaintiff refused to move and

proposed to move in the morning, but Plaintiff was

issued an RVR. Id. at 8. Phillips also approved the

guilty finding that sent Plaintiff to administrative

segregation. Id. Plaintiff complains that many of

the moves violated the Movement Warning. Id.

Defendant Floercky, CMC

With respect to the night move on Nov. 10,

2016, Floercky told Plaintiff that he was the last one

to move in, so he was also the first out. TAC at 8.

Plaintiff contends this was not true because another

inmate moved in to the tier after Plaintiff. Id. In the

App. 13

resulting RVR, Floercky admitted being told by

Phillips to move Plaintiff and that Plaintiff told him

he was too tired. Id. at 10. Floercky also admitted to

being notified by Plaintiff that the move was a health

risk and that Plaintiff was willing to move in the

morning. Id. Floercky then changed his story at the

disciplinary hearing, showing evidence of retaliatory

intent. Id.

Defendant Gastelo, CMC

Plaintiff alleges that as warden, Gastelo is

liable for her failure to terminate a series of illegal

acts by her subordinates despite being on notice via

exhausted appeals, including the 602 on Poindexter

which resulted in the lawsuit 16HC-0062. TAC at 5.

Plaintiff also submitted a CDCR-22 form to Gastelo

on July 10, 2016. Id. This was ignored for 45 days.

Id. Gastelo was served with a copy of the petition for

writ of mandate filed in July 2016 which alleged

retaliation and claimed that Gastelo failed to

intervene. Id. Plaintiff alleges that Gastelo could

have ordered Plaintiff moved to a different building

but knowingly left him in Poindexter’s way. Id.

Plaintiff also alleges that Gastelo ignored a letter

written to her by Plaintiffs parents on Nov. 22, 2016

regarding the frequent intra-facility moves. Id. Six

weeks later, a member of Gastelo’s staff answered

the letter. Id.

Plaintiff alleges that his ordinary firmness

was chilled because he realized that any additional

602s would increase the retaliation. Id. at 7. After

the Nov. 22, 2016 letter, misconduct by Gastelo’s

subordinates continued. Id. Phillips upheld the

fraudulent disciplinary proceeding from the RVR and

the subsequent adverse transfer to a maximum-

App. 14

security level prison. Id. Plaintiff was subjected to 16

intra-facility moves in 27 months. Id.

There were also numerous appeals that the

appeals coordinator refused to process on Gastelo’s

watch. Id. Plaintiff believes that the Warden

actively encouraged her employee’ misconduct by

ignoring written communications. Id.

Defendant Asuncion, California State

Prison - Los Angeles County (“CSP-LAC’)

Plaintiff alleges that by 2018, CDCR

was well aware of the controversy at CMC. TAC at

12. Plaintiff contends that as warden, Asuncion

refused to terminate a series of illegal acts on the

part of her subordinates, such as her employees not

completing a compatibility assessment before

Plaintiff was housed with five different cellmates

over the 15 months he was at CSP-LAC. Id. One of

those cellmates came from administration segre

gation, and only a representative from the warden’s

office can determine release from administration

segregation into the general or EOP population. Id.

Her failure to discipline was akin to giving per

mission to her employees to harass Plaintiff. Id.

Plaintiff was also assigned to a job incompatible with

his medical condition. Id.

Plaintiff provides a chronology of various

events that happened while he was at CSP-LAC. On

June 12, 2017, Plaintiffs property was not “transpacked” when he was transferred from CMC to CSPLAC. Id. at 13. On September 5, 2017, Plaintiff filed

a petition for writ of habeas corpus with the U.S.

Supreme Court, and retaliation escalated after this.

Id. On October 2, 2017, Plaintiff filed a staff

complaint against C.O. L. Godina for constantly

App. 15

harassing Plaintiff. Id. at 14.

Starting on November 5, 2017, an arbitrary

set of lockdowns began, and Plaintiff had

disagreements with his cellmate on a daily basis

during this lockdown. Id. The lockdowns continued

for about three weeks. Id.

On December 21, 2017, a nurse practitioner

discontinued medications. Id.

On February 2018, Plaintiff filed a staff

complaint regarding flashlights being used in

retaliation for his filing of grievances. Id.

On March 19, 2018, Plaintiff filed a staff

complaint that he was being harassed by employees,

including C.O. Altamirano and others in the D

program office while Plaintiff tried to do his job as a

Chapel clerk. Id.

On May 7, 2018, Plaintiff filed a staff

complaint against C.O. F.D. Nichols for interfering

with his job, delaying his packages, and retaliating

against his friends. Id.

On June 4, 2018, shortly after Plaintiff filed

the instant case, Plaintiff was deprived of access to

the library. Id. at 12, 14. On June 11, 2018, he and

others were deprived of access to the library,

resulting in a group writ of mandate. Id. at 15.

On June 19, 2018, Plaintiff filed a staff

complaint that he was denied court access. Id.

On June 21, 2018, Plaintiff filed a medical

complaint about a psych tech’s unprofessional and

provocative response. Id.

Plaintiff also contends that his transfer to

California State Prison — Corcoran (“CSP-Corcoran”)

on July 5, 2018, followed by a transfer to R.J.

Donovan two months later, is suspicious and was

done under Asuncion’s watch. Id. at 12-13, 21.

Plaintiff filed ten 602 grievances in a six-

App. 16

month period regarding harassment and retaliation

by Asuncion’s staff. Id. at 13. Asuncion failed to train

or reprimand her employees. Id. Other appeals were

discarded, destroyed, or improperly screened out. Id.

Plaintiff contends that there were clear adverse

consequences by submitting these numerous

grievances. Id. at 15.

Acuna/John Doe, CSP-Corcoran2

Plaintiff alleges that Acuna placed an

incompatible inmate in Plaintiffs cell. TAC at 16.

The cellmate had a higher security level and needed

to be housed on an SNY yard. Id. Plaintiff is White

and the cellmate is Hispanic. Id. The cellmate had

recently been charged with two batteries against

other inmates, and was belligerent while housed

with Plaintiff over the course of three weeks. Id.

Acuna housed the cellmate with Plaintiff without a

compatibility assessment when there were other cells

that could have housed the other inmate. Id. Plaintiff

filed a grievance that mentioned Acuna’s misconduct

and retaliation. Id.

H. Defendant Esquerra, CSP-Corcoran

Plaintiff alleges that Esquerra refused

Plaintiffs request to remove a dangerous and

incompatible cellmate from Plaintiff cell. TAC at 17.

After three weeks and no fights with the cellmate,

Esquerra forced Plaintiff to move out. Id. Plaintiff

2 Although Plaintiff provides a last name for this

defendant, Plaintiff acknowledges that the identity and

location of this defendant is currently unknown and so

Plaintiff sues Acuna by a fictitious name. TAC at 16.

App. 17

was housed with an African American inmate even

though there were numerous empty cells. Id. No

compatibility assessment was done or on file. Id.

Esquerra also improperly screened out grievances

only days after Plaintiff arrived at the institution. Id.

Esquerra, Asuncion and Acuna all took adverse

action after the matter at hand was filed. Id. Within

a few weeks, on September 12, 2018, Plaintiff was

“dubiously” transferred to R.J. Donovan. Id. at 17,

21.

IV. LEGAL STANDARDS

Section 1983

Plaintiff brings his claims under 42 U.S.C.

section 1983 (“Section 1983”). See 11 TAC at 1. To

state a claim under Section 1983, Plaintiff must

plead that Defendants, while acting under color of

state law, deprived him of a right created by federal

law. 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42,

48, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988).

Vicarious liability is unavailable in a Section 1983

claim. Iqbal, 556 U.S. at 676. To state a viable

Section 1983 claim against an individual, a plaintiffs

complaint must allege that the individual’s own

actions caused the particular constitutional

deprivation alleged. Id. Allegations regarding

causation must be individualized and must focus on

the duties and responsibilities of the defendant

“whose acts or omissions are alleged to have caused a

constitutional deprivation.” Leer v. Murphy, 844

F.2d 628, 633 (9th Cir. 1988).

Ill

App. 18

Supervisory Liability

“A defendant may be held liable as a super

visor under § 1983 if there exists either (1) his or her

personal involvement in the constitutional

deprivation, or (2) a sufficient causal connection

between the supervisor’s wrongful conduct and the

constitutional violation.” Starr v. Baca, 652 F.3d

1202, 1207 (9th Cir. 2011)(quotations and citation

omitted). “The requisite causal connection can be

established ... by setting in motion a series of acts

by others, ... or by knowingly refusing to terminate

a series of acts by others, which the supervisor knew

or reasonably should have known would cause

others to inflict a constitutional injury.” Id. at 1207OS (quotations and citations omitted). Supervisory

officials may be liable under § 1983 for their own

culpable action or inaction in the training, super

vision, or control of subordinates; for acquiescence in

the constitutional injuries complained of; or for

conduct showing a callous or reckless indifference to

the rights of others. Watkins u. City of Oakland, 145

F.3d 1087, 1093 (9th Cir. 1998) (citing Larez v. City

of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991)).

Retaliation

A First Amendment claim based on retaliation

has the following elements: (1) the plaintiff engaged

in protected conduct; (2) a defen-dant state actor took

adverse action against the plaintiff; (3) a causal

connection exists between the protected conduct and

the adverse action; (4) the adverse action is one that

“would chill or silence a person of ordinary firmness

from future First Amendment activities”; and (5)

the retaliatory action did not advance a legitimate

App. 19

penological goal. Watison u. Carter, 668 F.3d 1108,

1114 (9th Cir. 2012).

Prisoners have a First Amendment right to

file grievances against prison officials and to be free

from retaliation for doing so. Id. Transfers or doublecelling in retaliation for exercise of First Amendment

rights can constitute adverse action. See Pratt u.

Rowland, 65 F.3d 802, 806-07 (9th Cir. 1995); Rizzo

v. Dawson, 778 F.2d 527, 531-32 (9th Cir. 1985).

Because direct evidence of retaliatory intent rarely

can be pleaded, allegations of a chronology of events

from which retaliation can be inferred are sufficient

to survive dismissal. Watison, 668 F.3d at 1114; see

also Pratt, 65 F.3d at 808 (“[T]iming can properly be

considered as circumstantial evidence of retaliatory

intent.”). A plaintiff may allege a chilling effect or

some other harm that is more than minimal.

Watison, 668 F.3d at 1114. A plaintiff must plead

facts to support, “in addition to a retaliatory motive,

that the defendant’s actions were arbitrary and

capricious, or that they were unnecessary to the

maintenance of order in the institution.” Id. at 111415 (citation and internal quotation marks omitted).

D. Eighth Amendment Deliberate Indifference

The Eighth Amendment is violated when

prison officials are “deliberately indifferent” to

“inmate health or safety.” Farmer v. Brennan, 511

U.S. 825, 834, 114 S. Ct. 1970, 128 L. Ed. 2d 811

(1994) (citation omitted). A prisoner alleging a

violation must show (1) that he is “incarcerated

under conditions posing a substantial risk of serious

harm”; and (2) that the defendants were “deliber

ately indifferent.” Id. at 834-37. “Deliberate

indifference” is a subjective test that requires

App. 20

plaintiffs to establish that an official knew of a

substantial risk of serious harm and disregarded the

risk “by failing to take reasonable measures to abate

it.” Id. at 847. This consideration can extend to

inmate transfers, if made with deliberate indiff

erence to a serious risk of harm. See Fitzharris v.

Wolff, 702 F.2d 836, 839 (9th Cir. 1983) (affirming

district court’s holding that plaintiff alleged a

cognizable Eighth Amendment claim based on a

prison transfer where plaintiff alleged that he would

be killed if he were transferred and that prison

authorities knew it).

Knowledge of the risk by prison officials can be

inferred from circumstantial evidence or proved

directly. See Farmer, 511 U.S. at 842 (holding that

Plaintiff “need not show that a prison official acted or

failed to act believing that harm actually would

befall an inmate; it is enough that the official acted

or failed to act despite his knowledge of a substantial

risk of serious harm.”); see also Wallis v. Baldwin, 70

F.3d 1074, 1077 (9th Cir. 1995) (prisoner notified

officials about hazard).

V. DISCUSSION

The Parties’ Arguments

Defendants’ Motion

With respect to the retaliation claims,

Defendants argue that Plaintiff has not alleged any

facts suggesting that the filing of this instant lawsuit

was the substantial or motivating factor that caused

Asuncion or Esquerra to take any particular action.

Mot. at 8. Additionally, Plaintiff does not allege that

either were aware of the fifing of the lawsuit prior to

service being completed on November 9, 2019. Id. As

App. 21

to Gastelo and Scheiffele, Defendants argue that

Plaintiff has not alleged that Gastelo was aware of

the grievance filed on December 23, 2015 against

Poindexter, or that the filing of the grievance was

the substantial or motivating factor that caused

Gastelo or Scheiffele to take any specific adverse

action. Id. at 9-10. Defendants contend that there is

no explanation how allegedly adverse actions

occurring three weeks, nine months, and ten months

after the filing of this grievance demonstrate

evidence of proximity of time between the protected

conduct and the retaliatory consequence. Id. at 10.

Turning to Plaintiffs Eighth Amendment

claims, Defendants assert that Plaintiff fails to allege

that Gastelo, Phillips, Scheiffele, Floercky or Ward

knew of and disregarded a substantial risk of serious

harm to Plaintiff in relation to the three cell moves

that are specifically alleged in the TAC. Id. at

Defendants contend that Plaintiff does not allege

that any of those three cell moves were intra

facility moves that necessitated that he carry

property up or down stairs, or that any Defendant

knew of this movement warning. Id. at 12-13.

Defendants maintain that Plaintiff has not shown

that any Defendant’s personal conduct demonst

rated deliberate indifference to a substantial risk of

serious harm. Id. at 13. As to Gastelo, Plaintiff does

not identify any of the exhausted appeals that

Gastelo allegedly ignored or that the delay in

responding to Plaintiffs parents’ letter constituted

deliberate indifference. Id. As to Phillips, Scheiffele,

Floercky and Ward, Defendants argue that Plaintiff

alleges no facts suggesting these Defendants were

aware of and disregarded a substantial risk of harm

related to the cell moves at issue. Id. at 14-16.

Defendants also assert that Gastelo, Phillips,

App. 22

Scheiffele, Floercky and Ward are entitled to

qualified immunity for the Eighth Amendment

claims relating to Plaintiffs housing moves. Id. at 16.

Defendants contend that there is no binding

precedent that would place Gastelo on notice that a

failure to respond promptly to a letter from

Plaintiffs parents violates the Eighth Amendment,

or that would place Scheiffele and Ward on notice

that it was a constitutional violation to order

Plaintiff to move cells two or three times in a year, or

that would place Phillips and Floercky on notice that

it was a constitutional violation to impose discipline

in response to Plaintiffs refusal to move cells when

instructed to do so. Id. at 18. Defendants argue that

further leave to amend should be denied as Plaintiff

has amended three times and has not alleged facts

that plausibly suggest that Defendants are liable for

violation of the First or Eighth Amendments. Id. at

19.

Plaintiffs Opposition

Plaintiff argues that the TAC adequately

alleges each Defendant’s personal involvement in the

First and Eighth Amendment violations. Opp’n at 2.

Plaintiff contends that many of the cases cited by

Defendants do not apply because they were at the

summary judgment stage. Id. at 3.

With respect to his Eighth Amendment claims,

Plaintiff contends that any reasonable official should

or would know that constant location changes at the

threat of disciplinary penalties could cause adverse

health effects and that Defendants colluded to act

with subjective malice. Id. at 4. Plaintiff argues that

Defendants collectively deprived Plaintiff of

adequate shelter due to the frequency of the forced

App. 23

moves. Id. at 5.

In response to Defendants’ arguments that

they were unaware of any risk to Plaintiff or of

Plaintiffs protected conduct, Plaintiff contends that

Defendants could plainly see he was overweight and

they watched Plaintiff walk on a regular basis to the

library with materials. Id. Plaintiff argues that this

case has never been about Plaintiff s medical needs

though Defendants’ acts exacerbated his

documented, pre- existing ailments such as arthritis,

obesity, and bipolar disorder. Id. Plaintiff contends

that it is not required for latent health problems to

become full fledged diseases before being considered

serious. Id. at 6.

Plaintiff contends that the fact that

Defendants may not have been aware of the

Movement Warning admits to the dereliction of their

paid duty. Id. at 6-7. Plaintiff argues that the

questions whether the Wardens were aware of the

risks created by their subordinate employees’ actions

or what the Sergeant’s intentions were when

approving cell transfers are questions for a jury. Id.

at 7. Plaintiff asserts that Defendants violated the

Eighth Amendment over course of days, weeks or

even years by harboring retaliatory plans. Id.

Plaintiff maintains that the misconduct by

CDCR has evolved and a common thread exists with

Plaintiffs housing being constantly switched to

where he was near dangerous men and subject to

risk of harm. Id. at 8.

With respect to Asuncion, Acuna, and

Esquerra, Plaintiff contends these Defendants acted

quickly in retaliation in relation to when Plaintiff

was transferred. Id. at 9.

Turning to his retaliation claims, Plaintiff

argues that he need only plead facts to show that

App. 24

conduct was done with an improper retaliatory

motive. Id. at 10. Plaintiff contends that it is difficult

for Defendants to explain what the cause of the

changes were. Id. Gastelo continued to permit cell

transfers to occur after being fully advised of the

problem, and Asuncion and Acuna were involved in

dangerous cell pairings. Id. Plaintiff asserts that

none of the misconduct can be explained in context

with any legitimate institutional goals. Id. at 11.

In response to Defendants’ observation that

Plaintiff has not identified the officers involved in

the moves, Plaintiff states that this cannot be

ascertained without discovery and is unnecessary

because they were approved by Asuncion’s

classification committee. Id. at 12.

Plaintiff argues that the retaliation by Gastelo

was not in ignoring communications, but in failing to

terminate a series of unlawful acts. Id.

Plaintiff contends that the clearest act of

retaliation is Warden Asuncion’s sabotage of the

library program two months after Plaintiff filed his

case in February 2018. Id. at 14. Plaintiffs transfer

to CSP-Corcoran also followed closely after a group

complaint about the library deprivation. Id. Plaintiff

contends that Defendants in different locations can

communicate by phone and that there are also

officer transfers between institutions. Id. at 15.

With respect to Defendants’ arguments about

qualified immunity, Plaintiff argues that there is no

requirement for Plaintiff to cite precedent in a

complaint. Id. at 17. Plaintiff contends that the

prohibition against retaliatory punishment is

clearly established Id. at 18.

Plaintiff also attaches a declaration in support

of his Opposition, id. at 24-26, an exhibit with his

and other inmates’ priority passes, id. at 28, and an

App. 25

addendum of new developments in the past five

months, id. at 29-30.

Defendants’ Reply

Defendants reply that the Opposition contains

mostly conclusory and speculative allegations. Reply

at 1-2. Plaintiff concludes that there was retalia

tion because nothing happens without a motive but

does not allege or point to facts showing that any

Defendant was aware of Plaintiffs protected activity.

Id. at 3. Defendants argue that Plaintiffs allegations

do not constitute well-pleaded facts to support any

First Amendment retaliation claims. Id. at 4. For the

Eighth Amendment claims, Defendants assert that

Plaintiff has not clarified how each Defendant

injured him or knowingly exposed Plaintiff to risk.

Id. at 5. Defendants contend that Plaintiff did not

identify in his Opposition any prior case law or

binding precedent demonstrating that correctional

guards and supervisors act unlawfully when instruc

ting an inmate to move to another cell. Id. at 8.

Retaliation Claims under the First

Amendment

Plaintiff was granted leave to amend his

retaliation claims against Gastelo, Scheiffele,

Asuncion and Esquerra. Dkt. No. 78. The retaliation

claims against Defendants Floercky, Phillips, Ward

and Acuna were dismissed from the action

with prejudice and without leave to amend. See Dkt.

Nos. 44, 50. The Court addresses only those claims

that have not been dismissed from the action with

prejudice.

Ill

App. 26

Defendant Scheiffele

The Court previously dismissed Plaintiffs

retaliation claim against Scheiffele because Plaintiff

failed to sufficiently allege a causal connection

between Plaintiffs filing of grievances and

Scheiffele’s allegedly adverse actions of night moves

and a cell assignment. Dkt. No. 78 at 9. Plaintiff

alleges in the TAC that Scheiffele ordered at least

three improper moves after Plaintiff filed a grievance

on December 23, 2015 against Scheiffele and his

coworker. TAC at 9. Plaintiff alleges that the

grievance “made reference to the ‘Sgt.’” Id.

Defendants argue that Plaintiff has not alleged facts

showing that Scheiffele was aware of the December

23, 2015 grievance or how the moves occurring three

weeks, nine months, and ten months after his

protected conduct demonstrate evidence of proximity.

Mot. at 10.

The Court finds that the TAC fails to allege a

causal connection between the filing of the December

23, 2015 grievance and the alleged adverse action.

Although a prison official may be aware of a griev

ance that names and is brought against that official,

Plaintiff does not allege that the December 23, 2015

named Scheiffele. TAC at 9. Rather, Plaintiff alleges

that it was filed against Poindexter and referred to

a “Sgt.” 3 See id. Plaintiff does not allege facts to

3 The Court has reviewed the December 23, 2015

grievance, which was attached to Plaintiffs original

complaint. See Dkt. No. 1 at 25-26. In the grievance,

Plaintiff complains about Poindexter’s conduct towards

Plaintiff. See id. Plaintiff claims that Poindexter made

Plaintiff move due to a broken lock, and Plaintiff

“proceedfed] to speak with Sgt to no avail.” Id. at 26. This

is the only reference to a “Sgt” and Scheiffele is not

App. 27

support that Scheiffele would have been aware of a

grievance that was filed against Poindexter and

referred to a “Sgt.” but not specifically to Scheiffele.

Id. Similarly, Plaintiff does not allege facts to

support how Scheiffele would have known about

Plaintiffs petition for mandate that only mentioned

“Poindexter and his supervisors.” Id. at 9. Without

facts to support that Scheiffele knew about the

grievance or other protected conduct by Plaintiff

and ordered the cell moves because of Plaintiffs

protected conduct, Plaintiff fails to state a cognizable

retaliation claim against Scheiffele. The Court

recommends that Defendants’ Motion be granted as

to this claim.

2. Defendant Gastelo

The Court previously dismissed Plaintiffs

identified by name. See id. This confirms that the

grievance was filed against Poindexter and not Scheiffele,

and that, assuming the “Sgt” in the grievance refers to

Scheiffele, the grievance referred to Scheiffele only briefly

and by position only. Although the TAC is the operative

pleading, the Ninth Circuit has suggested that documents

attached to a prior pleading may be considered in certain

contexts. See Akhtar v. Mesa, 698 F.3d 1202, 1209 (9th

Cir. 2012) (“Under recent case law, [the original]

complaint was not entirely superseded when the amended

complaint was filed, and so could have been considered by

the magistrate judge in considering exhaustion.”). Here,

the Court finds that even without considering the

contents of the December 23, 2015 grievance, the TAC

fails to state a claim. However, the contents of the

grievance support the Court’s recommendation to dismiss

the claim without leave to amend.

App. 28

retaliation claim against Gastelo because Plaintiff

failed to allege facts to show that Gastelo was aware

of her subordinates’ retaliation such that she could

have yet failed to terminate the retaliatory conduct.

See Dkt. No. 78 at 6-7. The TAC does not cure the

deficiencies addressed in the Court’s prior order.

Plaintiff alleges in the TAC that Gastelo was

made aware of her subordinates’ retaliation through

an exhausted appeal on Poindexter and resulting

lawsuit, a petition for writ of mandate that alleged

retaliation by Poindexter and his supervisors, and a

November 22, 2016 letter from his parents. TAC at 5,

7. However, Plaintiff has not sufficiently alleged any

retaliatory acts after Gastelo was allegedly made

aware of her subordinates’ retaliation to show that

Gastelo failed to terminate or prevent such

retaliation.

First, Plaintiff has not alleged any facts to

show that Gastelo would have been aware of the

grievance filed against Scheiffele and Poindexter.

Moreover, to the extent Plaintiff is attempting to

allege that Gastelo would have been aware due to

her involvement in the review of the grievance,

district courts in the Ninth Circuit have found that

there is no Section 1983 liability where a defendant’s

only involvement in an alleged constitutional

violation is the review or denial of an adminis

trative grievance. See, e.g., Balzarini v. Diaz, Case

No. 5:18-cv-01962-RGK (MAAx), 2018 WL 6591423,

at *6 (C.D. Cal. Dec. 14, 2018) (finding plaintiffs

allegations insufficient to state a claim against a

warden in part because the warden’s only involve

ment was in the review and determination of the

plaintiffs second-level appeal); see also Wright v.

Shapirshteyn, No. CV 1-06-0927-MHM, 2009

WL 361951, at *3 (E.D. Cal. Feb. 12, 2009);

App. 29

Velasquez v. Barrios, No. 07cvl 130-LAB (CAB), 2008

WL 4078766, at *11 (S.D. Cal. Aug. 29, 2008).

Accordingly, Plaintiff cannot maintain a supervisory

liability claim against Gastelo based on the filing

of the 602 grievance.

Second, Plaintiffs allegations regarding the

CDCR-22 form and the petition for writ of mandate

are not sufficient to plead a claim for supervisory

liability against Gastelo. Plaintiff states that the

CDCR-22 form referenced retaliation but does not

allege that it complained of any specific retaliatory

conduct by any specific employee. See TAC at 5.

Similarly, although Plaintiff alleges that Gastelo was

served with a copy of the petition for writ of man

date, Plaintiff only vaguely alleges that the petition

for writ of mandate complained of retaliation by

Poindexter and his supervisors and Gastelo’s failure

to intervene. See id. at 5, 9. Plaintiff does not provide

any allegations regarding the details of the retal

iation complained of in the CDCR-22 form or the

petition for writ of mandate such that Gastelo would

have been placed on notice of unconstitutional

retaliation by her employees. Therefore, even

if Gastelo was aware of the CDCR-22 form or the

petition for writ of mandate, Plaintiff has not

alleged facts to show her personal liability in

preventing subsequent action that was allegedly

retaliatory.

Third, Plaintiff has not alleged facts to show

that he was subject to retaliation after Gastelo

became aware of the November 22, 2016 letter.

Plaintiff has alleged facts to support a reasonable

inference that Gastelo was aware of the November

22, 2016 letter from his parents regarding the

frequent intra-facility moves because he alleges that

a member of her staff responded to the letter. See

App. 30

TAC at 5. To plead facts to show that Gastelo failed

to terminate retaliation addressed in the letter,

Plaintiff must show that a retaliatory intra-facility

move occurred after Gastelo became aware of the

November 22, 2016 letter. Although Plaintiff has

alleged that he was subjected to a number of

improper moves, the last allegedly improper move

specified in the TAC took place on November 16,

2016. See TAC at 9. Plaintiff does not allege that he

was subjected to any improper moves at CMC after

November 16, 2016, even though he was housed

there until June 12, 2017. See id. at 21.

Plaintiff does allege that misconduct

continued after the November 22, 2016 letter,

including Phillips upholding a fraudulent discipline

ary proceeding and a transfer to a different prison.

See id. at 7. Plaintiff has not alleged, however, that

his parents’ November 22, 2016 letter complained of

anything other than improper moves within the

facility such that it would have placed Gastelo on

notice of other forms of retaliation. Moreover,

Plaintiff has not alleged any protected conduct that

preceded Phillips’ alleged misconduct to show that

the adverse action was retaliatory. Accordingly,

Plaintiffs allegations do not show that Gastelo failed

to terminate retaliation after being made aware of

allegedly improper moves by the November 22, 2016

letter. The Court recommends that Plaintiff s

retaliation claim against Gastelo be dismissed.

Defendant Asuncion

The Court previously dismissed Plaintiffs

retaliation claim against Asuncion for failure to

allege a chronology of events that would show that

Asuncion knew her subordinates were retaliating

against Plaintiff, that she refused to terminate those

actions, and that there was further retaliation as a

App. 31

result. Dkt. No. 78 at 8. Plaintiff alleges that he filed

various grievances while housed at CSP-LAC. See

TAC at 12-15. As explained above, Plaintiff may not

maintain a Section 1983 claim against Asuncion

based only on her or her office’s review of Plaintiffs

grievances.

Additionally, most of the grievances described

by Plaintiff do not allege retaliation. For example,

Plaintiff alleges that he filed a complaint against

C.O. L. Godina for harassment. Id. at 14. However,

he does not allege that he complained that she

engaged in retaliation against him, nor does he

allege that any retaliation by this individual took

place after Plaintiff filed his complaint. Plaintiff also

complains of a series of lockdowns that started on

November 5, 2017 and continued for three weeks. Id.

at 14. However, Plaintiff does not allege that these

lockdowns were retaliatory. Similarly, Plaintiff s

complaints about unreasonable medical care do

not involve retaliation. See id. at 14-15. Even for the

grievances that do mention or complain of retalation, Plaintiff has not alleged any protected conduct

that was causally connected to the alleged retal

iation. Accordingly, even if these grievances could

have placed Asuncion on notice, they did not

adequately allege retaliation such that she would

have a duty to terminate or prevent further

retaliation.

Plaintiff also does not causally connect any

adverse action by Asuncion to his protected conduct.

Plaintiff alleges that Asuncion took adverse action in

response to this lawsuit. See TAC at 17. However, all

the allegedly adverse action took place prior to when

Asuncion was served in November 2019 and Plaintiff

does not allege facts to show that Asuncion would

have been aware of this lawsuit prior to service.

App. 32

Accordingly, Plaintiff fails to allege a claim

against Asuncion for retaliation.

Defendant Esquerra

The Court previously dismissed Plaintiffs

retaliation claim against Esquerra because Plaintiff

had not sufficiently alleged facts to show that

Esquerra knew about a grievance that had been

filed against her and took adverse action because of

it. Dkt. No. 78 at 10. Plaintiff now alleges that

Esquerra took adverse action against Plaintiff in

“following suit” with the misconduct from CMC and

CSP-LAC and because of the filing of the instant

action. See TAC at 17.

Plaintiff was housed at CSP-Corcoran from

July to mid-September 2018. See id. at 21. Plaintiff

has not alleged how Esquerra was aware of this

lawsuit prior to service in November 2019. More

over, Esquerra was not named as a defendant until

October 25, 2018. Plaintiff has alleged no facts to

show how any adverse action taken by Esquerra was

causally connected to a lawsuit that was filed against

other defendants for events that occurred at other

prisons. Under Plaintiffs reasoning, any adverse

action by any prison employee after a prisoner has

filed a lawsuit would amount to retaliation, at least

for pleading purposes, even if the adverse action

was taken by a defendant not named in the lawsuit

at a prison not referenced in the lawsuit. The law

requires more to allege a causal connection for a

First Amendment retaliation claim. See Grenning v.

Klemme, 34 F. Supp.3d 1144, 1163 (E.D. Wash. 2014)

(“Retaliation is not sufficiently alleged and cannot be

proven by simply showing that a defendant prison

official took adverse action after he knew the

prisoner had engaged in other constitutionally

protected activity.”).

App. 33

Because Plaintiff fails to allege a causal

connection between any protected conduct and

Esquerra’s adverse actions, Plaintiffs claim for

retaliation against Esquerra fails. The Court

recommends dismissal of this claim.

Eighth Amendment Claims

Plaintiff was permitted to include in the TAC

the surviving Eighth Amendment claims against

Scheiffele, Gastelo, Phillips, Ward, and Floercky

based on cell moves in violation of the Movement

Warning. See Dkt. No. 78 at 11. There is also a

surviving Eighth Amendment claim against Acuna,

who Plaintiff has now named as a Doe defendant in

the TAC. The Eighth Amendment claims against

Defendants Asuncion, Scheiffele and Esquerra based

on housing assignments with incompatible inmates

have been dismissed with prejudice and without

leave to amend from this action. See Dkt. Nos. 44,

50.

Defendants Scheiffele, Phillips, Ward

and Floercky

Plaintiff alleges that he was moved 16 times

during his 27 months at CMC, and that many of

these moves violated a Movement Warning regarding

stairs, a seizure risk, or a slip and fall risk because

they were intra-facility moves that required Plaintiff

to make six to eight trips up and down stairs to carry

his property. See TAC at 8, 9. Plaintiff does not

allege, however, that Defendants Scheiffele, Phillips,

Ward or Floercky were aware of the Movement

Warning or that they knew that requiring Plaintiff

to move cells would put Plaintiffs health at risk.

Moreover, although Plaintiff alleges these

Defendants’ involvement in specific moves on specific

App. 34

dates, Plaintiff does not allege that any of those

specific moves were intra-facility moves in violation

of the Movement Warning that posed a substantial

risk of serious harm to Plaintiff. Plaintiffs argument

in his Opposition that Defendants should have been

aware of the risk because Plaintiff is visibly over

weight is not persuasive. Plaintiff did not include

this allegation in his TAC. Even if he had, Plaintiff

has not alleged any facts to support his apparent

contention that requiring a visibly overweight

inmate to move between floors would constitute a

substantial risk of serious harm to that inmate’s

health.

Accordingly, Plaintiff fails to state a

cognizable claim for deliberate indifference against

Defendants Scheiffele, Phillips, Ward or Floercky

based on cell moves that purportedly violated a

Movement Warning. The Court recommends

dismissal of these claims.

Defendant Gastelo

Plaintiffs Eighth Amendment claim against

Defendant Gastelo is based on a theory of super

visory liability. However, Plaintiff has not alleged

that Gastelo was personally involved in the cell

moves or was aware that her subordinates were

conducting moves that were in violation of the

Movement Warning. Accordingly, Plaintiff fails to

state an Eighth Amendment claim against Gastelo

and the Court recommends that this claim be

dismissed.

Because the Court finds that Plaintiff has not

stated a cognizable Eighth Amendment claim

against Defendants Scheiffele, Gastelo, Phillips,

Ward and Floercky, the Court need not address

Defendants’ arguments on qualified immunity.

App. 35

Acuna/John Doe

Plaintiff first named Acuna in the First

Amended Complaint, filed on October 25, 2018. Dkt.

No. 32. Acuna was again named in the SAC, filed on

March 8, 2019. Dkt. No. 42. On July 18, 2019, the

Court issued an order explaining that Plaintiff was

responsible for service of the SAC because he is not

proceeding in forma pauperis. Dkt. No. 52. The Court

extended the 90-day period for service to expire on

October 16, 2019. Id. Plaintiff was warned that his

failure to effectuate service by that date may result

in the dismissal of the action as to any unserved

defendants. Id.

Although Plaintiff was able to serve

Defendants, he was unable to serve Acuna.

Defendants provided in their motion to dismiss the

SAC that no correctional sergeant named Acuna is

currently employed at CSP-Corcoran, nor was any

such individual identified as having been employed

at that facility in 2018. Dkt. No. 72 at 17n.l2 & Decl.

of Colin A. Shaff 5. Plaintiff acknowledged in his

opposition to the motion to dismiss the SAC that

Acuna had not been served and stipulated to a

dismissal of Acuna without prejudice. Dkt. No. 74 at

26. In its order on Defendants’ motion to dismiss the

SAC, the Court explained that because it was

providing Plaintiff with another opportunity to

amend his complaint, he could voluntarily dismiss

his claims against Acuna without prejudice by not

including Acuna in a further amended complaint or

by filing a notice of dismissal. Dkt. No.78.

Plaintiff kept the allegations against Acuna in

his TAC but named him as a Doe defendant. See

TAC at 16. Plaintiff provides in the TAC that he does

not know the complete identity and location of Acuna

and that he will amend the complaint to substitute

App. 36

the true name when ascertained. Id.

Under Federal Rule of Civil Procedure 4(m)

(“Rule 4(m)”), if a defendant is not served within 90

days after the complaint is filed, the court, on motion

or on its own after notice to the plaintiff, must

dismiss the action without prejudice against that

defendant or order that service be made within a

specific time. Fed. R. Civ. P. 4(m). “Rule 4(m)

requires a two-step analysis in deciding whether or

not to extend the prescribed time period for the

service of a complaint.” In re Sheehan, 253 F.3d 507,

512 (9th Cir. 2001) (citations omitted). “First, upon a

showing of good cause for the defective service, the

court must extend the time period. Second, if there is

no good cause, the court has the discretion to dismiss

without prejudice or to extend the time period.” Id.

The “good cause” exception applies only in “limited

circumstances” and is not satisfied by “inadvertent

error or ignorance of the governing rules.” Hamilton

v. Endell, 981 F.2d 1062, 1065 (9th Cir. 1992) (citing

Wei v. Hawaii, 763 F.2d 370, 372 (9th Cir. 1985))

(overruled on other grounds). In making extension

decisions under Rule 4(m), a district court may

consider factors “like a statute of limitations bar,

prejudice to the defendant, actual notice of a lawsuit,

and eventual service.” Efaw v. Williams, 473 F.3d

1038, 1041 (9th Cir. 2007).

Here, the Court finds that Acuna/John Doe

should be dismissed from this action without

prejudice for Plaintiffs failure to timely serve.4 “The

4 Plaintiff was previously advised that his failure to serve

may result in dismissal without prejudice of any unserved

defendants. Dkt. No. 52. This Report and Recommen

dation provides additional notice to Plaintiff of the Court’s

intent to dismiss Acuna/John Doe for failure to timely

serve.

App. 37

90-day deadline under Rule 4(m) applies to service

on Doe Defendants.” Thompson v. Gomez, No. 1:18cv-00125- JLO - SAB (PC), 2020 WL 417773, at *2

(E.D. Cal. Jan. 27, 2020) (citing Ticketmaster L.L.C.

v. Prestige Entm’t W., Inc., 315 F. Supp. 3d 1147,

1158 (C.D. Cal. 2018); Tabi v. Doe, No. EDCV 18-714

DMG (JC), 2019 WL 4013444, at *1 (C.D. Cal. Aug.

26, 2019)). Plaintiff acknowledges that he has been

unable to serve this defendant and at one point

appeared to agree to a dismissal without prejudice of

this defendant. See Dkt. No. 74 at 26. Plaintiff has

not requested additional time to serve this

defendant.

The Court observes that Plaintiffs claims

against Acuna would likely not be time-barred even

if they are dismissed without prejudice. The

allegations against Acuna involve events that

occurred in 2018 when Plaintiff was housed at CSPCorcoran. See TAC at 21 (providing that Plaintiff

was transferred to CSP-Corcoran in July 2018). The

time for bringing any Section 1983 claims against

Acuna likely has not yet run in light of California’s

two-year statute of limitations for personal injury

actions and two-year statutory tolling of the

limitations period for imprisonment. Accordingly, the

Court recommends that Acuna/John Doe be

dismissed from this action without prejudice for

Plaintiff s failure to timely serve this defendant.

Leave to Amend

Plaintiff has been provided three opportunities

to amend his complaint. Further leave to amend is

not warranted considering Plaintiffs repeated failure

App. 38

to cure the pleading deficiencies identified by the

Court. See Chodos v. West Publ’g Co., 292 F.3d 992,

1003 (9th Cir. 2002) (“It is generally our policy to

permit amendment with extreme liberality, although

when a district court has already granted a plaintiff

leave to amend, its discretion in deciding subsequent

motions to amend is particularly broad.” (citation

and internal quotation marks omitted)).

VI.

RECOMMENDATION

For the reasons stated above, IT IS

RECOMMENDED that the District Court issue an

Order:

(1) accepting and adopting this Report and

Recommendation;

(2) GRANTING Defendant’s Motion to Dismiss

and dismissing Plaintiff s claims against

Defendants Gastelo, Asuncion, Scheiffele,

Phillips, Ward, Floercky, and Esquerra with

prejudice and without leave to amend; and

(3) dismissing Plaintiffs claims against

Acuna/John Doe without prejudice.

DATED: November 25, 2020

Is/.

ROZELLA A. OLIVER

UNITED STATES MAGISTRATE JUDGE

App. 39

Supreme Court of the United States

Office of the Clerk

Washington, DC 29543-0001

Oct. 09, 2018

Mr. Robert Snyder,

Prisoner ID #AC9136

Donovan Correctional

Center, A2-Cell 125

San Diego, CA 92179

Re: Robert R. Snyder

No. 18-171

California Department of

Corrections, et al.

Dear Mr. Snyder:

The Court today entered the following order in

the above-entitled case:

The petition for certiorari is DENIED.

Sincerely,

/s/

Scott S. Harris, Clerk

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.