Branch v. Grannis, et al.,

Filing 29

ORDER DISMISSING Certain Claims and Defendants 26 , signed by Magistrate Judge Sandra M. Snyder on 5/11/11: This action shall proceed on Plaintiff's Second Amended Complaint, against Defendants Umphenour and Does 1 and 2; Defendants Grannis, Mendoza-Powers and Mancinas are DISMISSED, with prejudice, based upon Plaintiff's failure to state a cognizable claim against them. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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LOUIS BRANCH,

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Plaintiff,

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CASE NO. 1:08-cv-01655-SMS PC
ORDER DISMISSING CERTAIN CLAIMS AND
DEFENDANTS

v.
N. GRANNIS, et al.,

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(ECF No. 26)
Defendants.
/

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I.

Screening Requirement

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Plaintiff Louis Branch (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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in this civil rights action pursuant to 42 U.S.C. § 1983. This action was filed on July 7, 2008.

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Currently pending before the Court is the second amended complaint, filed August 25, 2010. (ECF

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No. 26.)

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks

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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

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In determining whether a complaint states a claim, the Court looks to the pleading standard

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under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain “a short and

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

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“[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it
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demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v.

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Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555

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(2007)).

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Under section 1983, Plaintiff must demonstrate that each defendant personally participated

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in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires

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the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S. Ct.

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at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). “[A] complaint [that]

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pleads facts that are ‘merely consistent with’ a defendant’s liability . . . ‘stops short of the line

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between possibility and plausibility of entitlement to relief.’” Iqbal, 129 S. Ct. at 1949 (quoting

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Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations

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contained in a complaint, a court need not accept a plaintiff’s legal conclusions as true. Iqbal, 129

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S. Ct. at 1949. “Threadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Id. (quoting Twombly, 550 U.S. at 555).

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II.

Complaint Allegations

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Plaintiff is in the custody of the California Department of Corrections and Rehabilitation

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(“CDCR”) and is currently incarcerated at the Correctional Training Facility, Soledad (“CTFS”).

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In August of 2002, an investigation was initiated based on Plaintiff’s allegations that CDCR had a

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policy of retaliation against him for exercising his rights. (Second Amend. Compl. 5, ECF No. 26.)

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In November 2003, Plaintiff was interviewed as part of the investigation and immediately afterward

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he alleges he was subjected to retaliatory conduct by the filing of fraudulent reports, denial of access

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to the law library, physical abuse, and unlawful confiscation of his property. (Id. at 5-6.)

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Defendant Mancinas instigated Plaintiff’s transfer to CTFS where a known enemy of Plaintiff

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was housed “accusing [P]laintiff of being a ‘Jail-house lawyer’ and a ‘shit stirring troublemaker’

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who had ‘worn out [his] welcome at Avenal.’” (Id. at 6.) Upon arriving at CTFS, Plaintiff requested

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that he be transferred to San Quentin State Prison (“SQSP”) or CMF-Vacaville so he could be close

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to his sole surviving family member. (Id. at 6, 7.)

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When Plaintiff arrived at Folsom State Prison (“FSP”) in January 2004, Plaintiff’s requested

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he be transferred to SQSP and the request was granted. However his assigned counselor forged a
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signature to have the transfer denied. Plaintiff filed a citizens complaint. (Id. at 7.) In April 2004,

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Plaintiff’s assigned counselor arranged for Plaintiff to be transferred to Avenal State Prison (“ASP”),

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allegedly in violation of the emergency transfer protocol. (Id. at 8.)

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Plaintiff was transferred back to ASP in May 2004. Plaintiff informed Defendant Mendoza-

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Powers that Defendant Mancinas had engaged in retaliatory conduct toward Plaintiff in the past, his

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transfer to ASP was unlawful, and he wanted to be transferred to SQSP or CMF-Vacaville. (Id. at

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8.) When Defendant Mendoza-Powers did not respond to Plaintiff’s complaints, Plaintiff filed a

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grievance against Defendant Mancinas. (Id.) Plaintiff appeared before the classification committee

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and informed them of his safety concerns. (Id. at 8-9.) The committee referred Plaintiff’s case to

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Defendant Mancinas for remedial action. “Defendant Mancinas failed and refused to perform his

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duty to‘to [sic] effect adherence to classification procedures and goals’ for Folsom’s inappropriate

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‘Emergency’ transfer to Avenal.” (Id. at 9.)

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In June 2004, Plaintiff submitted a sworn declaration that he had witnessed an inmate be

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battered and assaulted by an ASP Officer. Defendant Umphenour confronted Plaintiff and said he

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“would be ‘dealt with’ for submitting ‘a false declaration against an officer.’” (Id.) Immediately

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ASP officials caused Plaintiff to be transferred five times in two weeks “amid the calumny and

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obloquy that [p]laintiff was a ‘snitch’ and a ‘baby raper.’” (Id.) Each of Plaintiff’s verbal and

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written pleas resulted in Plaintiff being transferred to another facility or building. (Id. at 9-10.)

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These transfers “virtually guaranteed” that Plaintiff’s grievances would not be responded to because

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they would be lost, forgotten, misplaced, or not investigated due to being re-routed. (Id. at 10.)

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After Plaintiff was transferred to Building 250 he was stabbed four times, bludgeoned about

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the head, and beaten to semi-consciousness while Defendants Umphenour, and Does 1 and 2

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watched without intervening. Plaintiff was then hospitalized and placed in segregation. Defendant

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Umphenour was to gather and inventory Plaintiff’s personal property. In August 2004, Plaintiff was

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transferred to Mule Creek State Prison (“MCSP”). (ECF No. 10.) When Plaintiff arrived at MCSP

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officials received his personal property and documented that it had been sabotaged. (Id.) After being

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transferred to MCSP, Defendant Grannis denied his appeal at the third level as untimely even though

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it was submitted timely.
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In January 2005, Plaintiff was authorized to transfer back to ASP. The day before the transfer

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was to occur the order was rescinded by Warden Bunnell. On May 15, 2005, Plaintiff filed a request

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for an investigation by the Office of the Inspector General. Plaintiff did not receive an affirmative

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response to his request. (Id.) Plaintiff alleges there was a policy and custom of retaliatory acts due

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to his efforts to access the courts and grievance system that is shown by Defendants Grannis,

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Mendoza-Powers, and Mancinas failure “to take any remedial steps after being admonished

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regarding the violations.” (Id. at 12.)

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First Cause of Action

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Plaintiff alleges that Defendants Umphenour, and Does 1 and 2 exhibited deliberate

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indifference to his personal safety. Defendants Grannis, Mendoza-Powers, and Mancinas’ failure

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to take remedial steps for the series of unlawful acts committed against Plaintiff was deliberately

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indifferent to the risk of serious harm in violation of the prohibition against cruel and unusual

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punishment. Defendants Grannis, Mendoza-Powers, and Mancinas’ violated Plaintiff’s Eighth

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Amendment right to personal safety by ignoring Plaintiff’s appeals, complaints, and letters.

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Second Cause of Action

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Plaintiff alleges that Defendants Grannis, Mendoza-Powers, and Mancinas maintained a

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policy and custom of transfers to expose him to a risk of harm due to the exercise of his First

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Amendment Rights, that Defendant Umphenour’s deliberate indifference to Plaintiff’s safety and the

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vandalism of his property were willful acts of the policy and custom of retaliation for his submitting

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a declaration that he witnessed an officer assault another inmate, and Defendants Doe 1 and 2 were

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deliberately indifferent to the assault on Plaintiff due to his filing grievances.

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Third Cause of Action

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Plaintiff alleges that Defendants Grannis, Mendoza-Powers, Mancinas, Umphenour, and

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Does 1 and 2 followed the policy and custom of retaliatory acts that led to his being assaulted by

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another inmate in violation of the Due Process Clause of the Fourteenth Amendment.

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Plaintiff brings this action against Defendants N. Grannis, K. Mendoza-Powers, A. Mancinas,

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D. Umphenour, and Does 1 and 2 in their official and individual capacities, for violations of the

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First, Eighth, and Fourteenth Amendment, . (Id. at 4, 13.) He is seeking a declaration that his
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Constitutional rights have been violated, injunctive relief requiring that Defendants Grannis,

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Mendoza-Powers, and Mancinas desist from retaliating against him, and compensatory damages.

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(Id. at 14.)

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III.

Discussion

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A.

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A plaintiff may state a claim for a violation of his First Amendment rights due to retaliation

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under section 1983. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). A viable claim of

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retaliation in violation of the First Amendment consists of five elements: “(1) An assertion that a

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state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected

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conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and

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(5) the action did not reasonable advance a legitimate correctional goal.” Rhodes v. Robinson, 408

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F.3d 559, 567 (9th Cir. 2005); accord Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009).

First Amendment

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A plaintiff suing for retaliation under section 1983 must allege that “he was retaliated against

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for exercising his constitutional rights and that the retaliatory action does not advance legitimate

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penological goals, such as preserving institutional order and discipline.” Barnett v. Centoni, 31 F.3d

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813, 816 (9th Cir. 1994). The plaintiff does not need to show actual inhibited or suppressed speech,

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but that there was a chilling effect upon his speech. Rhodes, 408 F.3d at 569. The burden is on the

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plaintiff to plead and prove the absence of any legitimate correctional goals for the alleged conduct.

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Pratt, 65 F.3d at 807. An allegation of retaliation against a prisoner’s First Amendment right to file

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a prison grievance is sufficient to support a claim under section 1983. Bruce v. Ylst, 351 F.3d 1283,

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1288 (9th Cir. 2003).

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Initially, the Court notes that while Plaintiff is alleging that he has been subject to numerous

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retaliatory transfers since 2002, each time Plaintiff is placed at an institution he has requested that

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he be transferred because he wants to be housed at SQSP. Therefore it appears that the substance

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of Plaintiff’s complaint is that he is not being transferred to an institution where he wants to be

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housed.

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Plaintiff sets forth multiple claims, apparently in support of his allegation that he is being

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subject to retaliation, without linking the claims to any named defendant. For example, while
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Plaintiff alleges that while at ASP he was transferred five times in two weeks, he fails to link any

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named defendant to the decisions to transfer him. Plaintiff asserts that these transfers guaranteed that

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his grievances would not be addressed, however it is unclear how the decision to transfer Plaintiff

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within the facility would cause Plaintiff’s grievances to fail to be addressed by prison officials. It

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is implausible to assume that the prison would lose track of Plaintiff’s grievances merely because

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he was transferred to another building. While Plaintiff states tat there was a “calumny and obloquy

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that [p]laintiff was a ‘snitch’ and a ‘baby raper,’” he fails to state that any defendants are involved.

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1.

Defendant Grannis

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Plaintiff alleges that he filed a timely appeal that was denied by Defendant Grannis as

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untimely. The complaint contains no facts to indicate that the denial of the grievance at the third

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level was for any reason other than that stated. Plaintiff’s statement that the denial was in retaliation

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for his filing grievances is insufficient to state a plausible claim that the appeal was denied because

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of Plaintiff’s protected conduct. Rhodes, 408 F.3d at 567. Plaintiff’s claim that Defendant Grannis

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denied his appeal as untimely does not allege any facts sufficient to state a cognizable claim of

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retaliation against Defendant Grannis.

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2.

Defendant Mendoza-Powers

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Plaintiff states that Defendant Mendoza-Powers ignored his declaration that Defendant

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Mancinas had engaged in retaliatory conduct toward Plaintiff in the past, his transfer to ASP was

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unlawful, and he wanted to be transferred to SQSP or CMF-Vacaville.” These allegations do not

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state a plausible claim that Defendant Mendoza-Powers acted or failed to act because of his protected

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activity. Iqbal, 129 S. Ct. at 1949. Once again Plaintiff has not set forth more than his speculation

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that the reason that Defendant Mendoza-Powers ignored his request was an adverse response to his

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protected activity and has failed to cross the line between possibility and plausibility. Id. Plaintiff

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fails to state a cognizable claim against Defendant Mendoza-Powers for retaliation.

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3.

Defendant Mancinas

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Plaintiff complains that after the classification committee referred his matter back to

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Defendant Mancinas for remedial action, Defendant Mancinas failed to perform his duty to‘to [sic]

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effect adherence to classification procedures and goals’ for Folsom’s inappropriate ‘Emergency’
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transfer to Avenal.” While Plaintiff disagreed with the decision to transfer him to ASP and he

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alleges that the classification committee referred the matter to Defendant Mancinas for further action,

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Plaintiff fails to set forth any facts that would indicate that Defendant Mancinas took any action or

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failed to act because of Plaintiff’s protected activity. Neither is Plaintiff’s claim that Defendant

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Mancinas was involved in a prior decision to transfer him in retaliation for Plaintiff’s engaging in

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protected activity sufficient to show that Defendant Mancinas acted or failed to act because of

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Plaintiff’s protected conduct. Plaintiff fails to offer more than conclusory statements that are

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insufficient to state a cognizable claim. Iqbal, 129 S. Ct. at 1949.

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4.

Defendant Umphenour

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Plaintiff’s allegations that Defendant Umphenour told him he would be “dealt with” for

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making a false allegation against an officer and then failing to intervene while Plaintiff was attacked

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by an inmate are sufficient to state a cognizable claim against Defendant Umphenour for retaliation.

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Plaintiff alleges that Defendant Umphenour was responsible to gather and inventory Plaintiff’s

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property when he was placed in segregation. Sometime later when Plaintiff was transferred to

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MCSP, his property was “sabotaged” when it arrived. The “sabotage” of Plaintiff’s property was

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discovered at a different institution. Plaintiff fails to link Defendant Umphenour to any retaliatory

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act and Plaintiff’s allegation that his property was sabotaged is vague. Even if Defendant

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Umphenour did inventory and gather Plaintiff’s property there are no facts alleged that indicate he

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took any adverse action against Plaintiff’s property.

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5.

Defendants Doe 1 and 2

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Plaintiff fails to state facts sufficient to state a cognizable claim against Defendants Doe 1

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and 2. While Plaintiff alleges that the Doe Defendants failed to intervene because of his protected

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activity, there is nothing in the facts to indicate that either Doe 1 or 2 were aware of Plaintiff’s

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activity. Plaintiff’s conclusory allegation that the failure to act was because of his protected activity

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is insufficient to state a plausible claim. Iqbal, 129 S. Ct. at 1949.

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B.

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Liability under section 1983 exists where a defendant “acting under the color of law” has

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deprived the plaintiff “of a right secured by the Constitution or laws of the United States.” Jensen

Eighth Amendment

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v. Lane County, 222 F.3d 570, 574 (9th Cir. 2000). To prove a violation of the Eighth Amendment

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the plaintiff must “objectively show that he was deprived of something ‘sufficiently serious,’ and

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make a subjective showing that the deprivation occurred with deliberate indifference to the inmate’s

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health or safety.” Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (citations omitted).

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Deliberate indifference requires a showing that “prison officials were aware of a “substantial risk of

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serious harm” to an inmates health or safety and that there was no “reasonable justification for the

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deprivation, in spite of that risk.” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837, 844 (1994)).

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Officials may be aware of the risk because it is obvious. Thomas, 611 F.3d at 1152.

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The circumstances, nature, and duration of the deprivations are critical in determining

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whether the conditions complained of are grave enough to form the basis of a viable Eighth

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Amendment claim.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2006).

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1.

Defendant Grannis

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Defendant Grannis denied Plaintiff’s appeal after Plaintiff had been transferred to MCSP.

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Plaintiff has not alleged that at the time Defendant Grannis denied his third level appeal Plaintiff was

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at risk of harm or that Defendant Grannis was aware of any risk of harm to Plaintiff. Absent such

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knowledge, Plaintiff’s allegations that Defendant Grannis denied his third level response as untimely

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fails to state a cognizable claim that Defendant Grannis acted or failed to act to a known risk of

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serious harm to Plaintiff. Thomas, 611 F.3d at 1150.

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2.

Defendants Mendoza-Powers and Mancinas

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Plaintiff alleges that upon arriving at ASP he informed Defendant Mendoza Powers that he

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had safety concerns due to the “retaliatory animus” of Defendant Mancinas because of the transfer

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from ASP to CTFS in 2003. This is insufficient to establish that Defendant Mendoza Powers would

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have knowledge that Plaintiff was at a risk of serious harm. While Plaintiff alleges that his verbal

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and written pleas to be transferred to another institution were ignored, he fails to state why he was

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asking for the transfer other than his claim that it was an illegal or inappropriate transfer.

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Additionally, it is unclear why Plaintiff alleges that this transfer was illegal. Although Plaintiff

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alleges the transfer was in violation of the emergency transfer protocol, he fails to state why the

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protocol was violated. The only specific reason Plaintiff set forth for his transfer request to SQSP
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or CMF-Vacaville was so he could be near his relative.

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Plaintiff’s allegations that his letters and appeals were ignored fails to establish that

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Defendant Mendoza Powers or Defendant Mancinas were aware of a substantial risk of harm to

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Plaintiff. Plaintiff fails to state what was contained in these documents other than his complaint that

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the transfer was illegal or inappropriate and he was afraid because of the previous alleged retaliatory

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transfer to CTFS by Defendant Mancinas. Plaintiff has not alleged that Defendant Mancinas was

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in any way involved in the attack upon Plaintiff or was present and failed to act during the incident.

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While Plaintiff asserts that he was subject to retaliation, he has failed to establish that Defendants

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Mendoza-Powers or Mancinas were aware that Plaintiff was in danger of being harmed. Plaintiff

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has failed to state a cognizable claim against Defendants Mendoza Powers or Mancinas.

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3.

Defendants Umphenour and Does 1 and 2

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Prison officials are required “to take reasonable steps to protect inmates from physical

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abuse.” Hoptowit v. Ray, 682 F.2d 1237, 1250 (9th Cir. 1982) (abrogated on other grounds by

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Sandin v. O’Connor, 515 U.S. 472 (1995)). Plaintiff’s allegations that Defendants Umphenour and

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Does 1 and 2 stood by and watched while he was assaulted by another inmate are sufficient to state

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a cognizable claim for failure to protect in violation of the Eighth Amendment.

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C.

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Plaintiff fails to raise a claim that adequately supports a violation of his rights under the

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Fourteenth Amendment. Where a particular amendment provides an explicit textual source of

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constitutional protection against a particular sort of government behavior, that Amendment, not the

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more generalized notion of substantive due process, must be the guide for analyzing a plaintiff’s

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claims.” Patel v. Penman, 103 F.3d 868, 874 (9th Cir. 1996) (citations, internal quotations, and

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brackets omitted) overruled on other grounds by Unitherm Food Systems, Inc. V. Swift –Eckrick,

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Inc., 546 U.S. 394 (2006); County of Sacramento v. Lewis, 523 U.S. 833, 842 (1998).

Fourteenth Amendment

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In this case, the First and Eighth Amendments “provide[ the] explicit textual source of

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constitutional protection . . . .” Patel, 103 F.3d at 874. Therefore, the First and Eighth Amendments

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rather than the Due Process Clause of the Fourteenth Amendment govern Plaintiff’s claims.

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D.

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Plaintiff brings this suit against officials in their individual and official capacities alleging

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there was a policy and custom of retaliation. A suit brought against prison officials in their official

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capacity is generally equivalent to a suit against the prison itself. McRorie v. Shimoda, 795 F.2d

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780, 783 (9th Cir. 1986). Therefore prison officials may be held liable if “‘policy or custom’ . . .

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played a part in the violation of federal law.” (Id.) (quoting Kentucky v. Graham, 105 S. C. 3099,

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3106 (1985).

Official Capacity

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The official may be liable where the act or failure to respond reflects a conscious or

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deliberate choice to follow a course of action when various alternatives were available. Clement v.

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Gomez, 298 F.3d 898, 905 (9th Cir. 2002) (quoting City of Canton v. Harris, 498 U.S. 378, 389

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(1989); see Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Waggy v. Spokane

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County Washington, 594 F.3d 707, 713 (9th Cir. 2010). To prove liability for an action policy the

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plaintiff “must . . . demonstrate that his deprivation resulted from an official policy or custom

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established by a . . . policymaker possessed with final authority to establish that policy.” Waggy, 594

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F.3d at 713. Liability for failure to act requires that Plaintiff show that the “employee violated the

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plaintiff’s constitutional rights;” the agency “has customs or policies that amount to deliberate

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indifference;” and “these customs or policies were the moving force behind the employee’s violation

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of constitutional rights.” Long, 442 F.3d at 1186.

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Plaintiff alleges that the CDCR had a policy of transferring inmates for engaging in protected

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conduct. However Plaintiff fails to allege a plausible claim that he was transferred because of his

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protected conduct. Nor has he alleged that any named defendant had final authority to establish such

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a policy. While Plaintiff claims that Defendant Mancinas engaged in retaliatory conduct when he

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was transferred from ASP to CTFS in 2003, Plaintiff does not allege facts sufficient to show that his

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transfer to ASP in 2004 was retaliatory.

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Additionally, Plaintiff alleges that Defendants failed to protect him from being attacked due

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to the policy and custom of retaliation. Plaintiff has failed to show that any official was aware that

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he was in danger of being attacked prior to the assault and failed to act. Plaintiff’s allegations that

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individual Defendants did not intervene when he was attacked by an inmate or have him transferred
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to a different prison fail to show that CDCR had a policy that amounted to deliberate indifference.

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Although Plaintiff has stated a claim against Defendants Umphenour and Does 1 and 2 for failure

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to protect and Defendant Umphenour for retaliation, the actions of these individual defendants is

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insufficient to show a custom or pattern of retaliation. Plaintiff has failed to state a cognizable claim

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against any named defendant in his official capacity for establishing a policy and custom of

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retaliation and this action will proceed only against Defendants in their individual capacities.

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E.

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Plaintiff seeks an injunction ordering Defendants Grannis, Mendoza-Powers, and Mancinas

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to cease from retaliating against him. The Prison Litigation Reform Act places limitations on

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injunctive relief. Section 3626(a)(1)(A) provides in relevant part, “[p]rospective relief in any civil

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action with respect to prison conditions shall extend no further than necessary to correct the violation

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of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any

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prospective relief unless the court finds that such relief is narrowly drawn, extends no further than

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necessary to correct the violation of the Federal right, and is the least intrusive means necessary to

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correct the violation of the Federal right.” 18 U.S.C. § 3626(a)(1)(A).

Injunctive Relief

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Plaintiff’s allegations of retaliation against Defendants Grannis, Mendoza-Powers, and

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Mancinas were not found to be cognizable. Absent a cognizable claim against the defendants, the

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Court lacks jurisdiction to order the relief requested.1 18 U.S.C. § 3626(a)(1)(A); Summers v. Earth

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Island Institute, 129 S. Ct. 1142, 1149-50 (2009) (citation omitted) Price v. City of Stockton, 390

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F.3d 1105, 1112 (9th Cir. 2004). Additionally, when an inmate seeks injunctive or declaratory relief

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concerning the prison where he is incarcerated, his claims for such relief become moot when he is

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no longer subjected to those conditions. Nelson v. Heiss, 271 F.3d 891, 897 (9th Cir. 2001); Dilley

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v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991).

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Since Plaintiff is no longer incarcerated at ASP, the injunctive relief he is seeking is moot as to

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Defendants Mendoza-Powers and Mancinas. Plaintiff’s claim for injunctive relief is not cognizable.

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1

In addition, CDCR itself is immune from suit. Aholelei v. Dept. of Public Safety, 488 F.3d 1144, 1147
(9th Cir. 2007).

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1

F.

2

“A declaratory judgment, like other forms of equitable relief, should be granted only as a

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matter of judicial discretion, exercised in the public interest.” Eccles v. Peoples Bank of Lakewood

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Village, 333 U.S. 426, 431 (1948). “Declaratory relief should be denied when it will neither serve

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a useful purpose in clarifying and settling the legal relations in issue nor terminate the proceedings

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and afford relief from the uncertainty and controversy faced by the parties.” United States v.

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Washington, 759 F.2d 1353, 1357 (9th Cir. 1985). In the event that this action reaches trial and the

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jury returns a verdict in favor of Plaintiff, that verdict will be a finding that Plaintiff’s constitutional

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rights were violated. Accordingly, a declaration that Defendants violated Plaintiff’s rights is

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unnecessary.

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IV.

Declaratory Relief

Conclusion andOrder

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Plaintiff’s second amended complaint sets forth a cognizable claim against Defendants

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Umphenour and Does 1 and 2 for failure to protect in violation of the Eighth Amendment and

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Defendant Umphenour for retaliation in violation of the First Amendment, but does not state any

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other claims for relief under section 1983. Because Plaintiff has previously been notified of the

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deficiencies and given leave to amend, the Court recommends that the non-cognizable claims be

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dismissed, with prejudice. Noll, 809 F.2d at 1448-49. Based on the foregoing, it is HEREBY

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ORDERED that:

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1.

This action shall proceed on Plaintiff’s second amended complaint, filed August 25,

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2010, against Defendants Umphenour and Does 1 and 2 for failure to protect in

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violation of the Eighth Amendment and Defendant Umphenour for retaliation in

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violation of the First Amendment, in their individual capacities, for money damages

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only;

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2.

Plaintiff’s retaliation claim against Defendants Grannis, Mendoza-Powers,

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Mancinias, and Does 1 and 2 are dismissed for failure to state a claim under section

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1983;

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3.

Plaintiff’s Eighth Amendment claims against Defendants Grannis, Mendoza-Powers,
and Mancinias are dismissed for failure to state a claim; and
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1

4.

2

Plaintiff’s claims against Defendants in their official capacities are dismissed for
failure to state a claim;

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5.

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Plaintiff’s claims for declaratory and injunctive relief are dismissed for failure to
state a claim; and

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6.

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Defendants Grannis, Mendoza-Powers, and Mancinas are dismissed, with prejudice,
based upon Plaintiff’s failure to state a cognizable claim against them.

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IT IS SO ORDERED.

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Dated:
icido3

May 11, 2011

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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