Rodriguez v. Hubbard et al

Filing 84

FINDINGS and RECOMMENDATIONS recommending that Defendants' 62 Motion to Dismis be Granted in Part and Denied in Part; Thirty Day Deadline signed by Magistrate Judge Dennis L. Beck on 5/9/2014. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 6/16/2014. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LUIZ VALENZUELA RODRIGUEZ,

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Plaintiff,
v.

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Case No. 1:10-cv-00858-LJO-DLB PC
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DEFENDANTS’
MOTION TO DISMISS BE GRANTED IN
PART AND DENIED IN PART

HUBBARD, et al.,
(ECF No. 62)
Defendants.

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THIRTY-DAY DEADLINE
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_____________________________________/
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I.

PROCEDURAL HISTORY
Plaintiff Luiz Valenzuela Rodriguez, a state prisoner proceeding pro se and in forma

pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on May 5, 2010. This action is
proceeding on Plaintiff’s third amended complaint, filed on February 29, 2012, against 1)
Defendants Hubbard, Cate, Harrington, Biter, Soto, Phillips, Da Veiga, Ozaeta, Betzinger,
Gregory, Garza, Wegman, Alic, Grissom, Speidell, Davis, and Foster for violation of the Free
Exercise Clause of the First Amendment and the Equal Protection Clause of the Fourteenth
Amendment; 2) Defendant Garza for retaliation in violation of the First Amendment; and 3)
Defendants Harrington, Biter, Grissom, Soto, Da Veiga, Phillips, Ozaeta, Betzinger, Gregory,
Wegman, Alic, Freir, and Rankin for deliberate indifference to Plaintiff’s safety in violation of the
Eighth Amendment (ECF Nos. 23 & 27.)
Pending before the Court is Defendant Da Viega’s, Phillips’ Betzinger’s, Gregory’s,

1 Garza’s Speidell’s, Ozaeta’s, Wegman’s, Biter’s, Alec’s and Rankin’s Motion to Dismiss, filed
2 pursuant to Federal Rule of Civil Procedure 12(b)(6) on July 29, 2013.1 (ECF No. 62.) Plaintiff
3 filed an opposition on January 27, 2014, and Defendants replied on February 13, 2014. (ECF Nos.
4 73 & 76.) The matter is deemed submitted pursuant to Local Rule 230(l).
5 II.

LEGAL STANDARD

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A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency of a

7 claim, and dismissal is proper if there is a lack of a cognizable legal theory or the absence of
8 sufficient facts alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d
9 1240, 1241-42 (9th Cir. 2011) (quotation marks and citations omitted), cert. denied, 132 S.Ct.
10 1762 (2012). In resolving a 12(b)(6) motion, a court’s review is generally limited to the operative
11 pleading. Daniels-Hall v. National Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010); Sanders v.
12 Brown, 504 F.3d 903, 910 (9th Cir. 2007); Huynh v. Chase Manhattan Bank, 465 F.3d 992, 100313 04 (9th Cir. 2006); Schneider v. California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir.
14 1998). However, courts may properly consider matters subject to judicial notice and documents
15 incorporated by reference in the pleading without converting the motion to dismiss to one for
16 summary judgment. U.S. v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).
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To survive a motion to dismiss, a complaint must contain sufficient factual matter,

18 accepted as true, to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678,
19 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct.
20 1955, 1964-65 (2007)) (quotation marks omitted); Conservation Force, 646 F.3d at 1242; Moss v.
21 U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The Court must accept the well-pleaded
22 factual allegations as true and draw all reasonable inferences in favor of the non-moving party,
23 Daniels-Hall, 629 F.3d at 998; Sanders, 504 F.3d at 910; Huynh, 465 F.3d at 996-97; Morales v.
24 City of Los Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000), and in this Circuit, prisoners proceeding
25 pro se are still entitled to have their pleadings liberally construed and to have any doubt resolved
26 in their favor, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012); Watison v. Carter, 668
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Defendants Hubbard, Cate, Harrington, Soto, Grissom, Davis, Foster, and Freir have not yet appeared in this action.
(ECF No. 62-1 at 7.)

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1 F.3d 1108, 1112 (9th Cir. 2012); Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011); Hebbe
2 v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).
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Further, “[a] claim may be dismissed under Rule 12(b)(6) on the ground that it is barred by

4 the applicable statute of limitations only when ‘the running of the statute is apparent on the face of
5 the complaint.’” Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th
6 Cir. 2010) (quoting Huynh, 465 F.3d at 997), cert. denied, 131 S.Ct. 3055 (2011). “‘A complaint
7 cannot be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts that
8 would establish the timeliness of the claim.’” Von Saher, 592 F.3d at 969 (quoting Supermail
9 Cargo, Inc. v. U.S., 68 F.3d 1204, 1206 (9th Cir. 1995)).
10 III.

SUMMARY OF PLAINTIFF’S THIRD AMENDED COMPLAINT

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Plaintiff was previously incarcerated at Kern Valley State Prison (“KVSP”) in Delano,

12 California, where the events giving rise to this action occurred. Plaintiff names as Defendants
13 former director of CDCR Susan Hubbard; secretary of CDCR Matthew Cate; K. Harrington,
14 former warden of KVSP; M. Biter, acting warden of KVSP; R. Davis and D. Foster, chiefs of the
15 inmate appeals branch for the Director’s level of CDCR; R. Grissom, associate warden at KVSP;
16 B. Daveiga, appeals coordinator at KVSP; Soto, correctional captain; M. Phillips and R. Speidell,
17 lieutenants at KVSP; F. Ozaeta, S. Gregory, and M. Betzinger, correctional sergeants at KVSP; J.
18 Garza, correctional officer at KVSP; C. Wegman, community partnership manager at KVSP; Ron
19 Alic, Native American chaplain at KVSP; and Freir and Rankin, psychologists at KVSP.
20 Plaintiff’s complaint is composed of three claims, which the Court will discuss below.
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A.

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Plaintiff arrived at KVSP on February 11, 2009. Pl.’s Third Am. Compl. (“TAC”) ¶ 1.

Religious Practice

23 Plaintiff has been a participant in the enhanced outpatient program (“EOP”) for mental health care.
24 Since 1994, Plaintiff has been recognized as a sacred “pipe holder” in CDCR. Id. ¶ 4. Plaintiff
25 used tobacco as an essential herb in his daily smoking for sacred prayer. Id. ¶ 5. Plaintiff owned
26 his own sacred prayer pipe within the CDCR since May of 2001. Id. ¶ 6. Plaintiff provided
27 Defendants with documents of documents dated since 2001 through 2009 verifying possession and
28 ownership and possession of prayer pipe, pipe bags, hawk wings, and owl wings. . Id. ¶ 7.
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Defendants refused to enforce state and federal laws which established rights protecting

2 Native American religious practices and sacred religious artifacts from February 11, 2009 to
3 February 11, 2012. Id. ¶¶ 8, 9. Plaintiff submitted 602 inmate grievances complaining of sweat
4 lodge access, sacred pipe ceremonies, ceremonial tobacco use, lack of access to a Native
5 American spiritual advisor/chaplain, and not providing Native American religious services for
6 KVSP administrative segregation. Id. ¶¶ 9, 10. Plaintiff resubmitted his grievance on March 2,
7 2009. Defendant Garza threatened Plaintiff with removal from the EOP program for the filing of
8 the 602 grievances. Id. ¶ 11.
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On March 24, 2009, Defendant Garza confiscated Plaintiff’s sacred pipe, sacred pipe bag,

10 enclosed medicine bundle, two sacred hawk wings, two sacred owl wings, loose eagle feathers and
11 a few spiritual necklaces. Id. ¶ 12. Plaintiff complains that Defendant Garza mishandled and
12 wrongfully confiscated sacred religious artifacts. Id. Defendant Garza informed Plaintiff that all
13 his religious artifacts would be discarded unless Plaintiff signed a statement that he authorized
14 withdrawal from his prison account to send his items. Id. ¶ 22. Plaintiff complied with the demand
15 rather than have the religious items discarded. Id. ¶ 25.
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Plaintiff provided Defendant Garza with a 602 inmate grievance on March 25, 2009. Id. ¶

17 27. Defendant Garza told Plaintiff that he did not accept 602 inmate grievances, and told Plaintiff
18 to set it down on the chair in the C-8 block’s captain’s office. Id. ¶ 28. Defendant Garza later told
19 Plaintiff that he could not get his stuff because he kept filing complaints. Id. ¶ 30. Defendant
20 Garza stated that he would talk to Defendant Freir and have Plaintiff removed from EOP. Id. ¶ 31.
21 Plaintiff informed other Native American inmates, who would contact Defendants Phillips and
22 Soto. Id. ¶ 34.
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Plaintiff spoke to Defendant Ozaeta and informed him of the problem; he stated that he had

24 already been informed by Defendant Garza and had told Defendant Garza that he could do
25 whatever he wanted to do with the Indian stuff. Id. ¶ 35. Defendants Captain Soto and Lieutenant
26 Phillips acquired possession of Plaintiff’s religious artifacts, and told Plaintiff that they would
27 hold the items while they looked into the problem. Id. ¶ 36.
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Plaintiff was finally able to get a 602 grievance accepted and processed on January 17,
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1 2010, which was denied by Defendant Betzinger on March 24, 2010; submitted on April 15, 2010,
2 and partially granted by Defendants Gregory and Grissom on May 19, 2010; submitted on May
3 25, 2010, and denied at the second level by Defendant M. Biter on June 18, 2010; and submitted
4 June 25, 2010, and denied at the third level by Defendants Davis and Foster on October 8, 2010,
5 specifically concerning the wrongful confiscation and deprivation of the religious artifacts. Id. ¶
6 40.
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On August 27, 2010, Defendants Wegman and Alic required Plaintiff to provide them an

8 address to mail his sacred pipe, hawk and owl wings, and a few loose feathers, or the items would
9 be destroyed. Id. ¶ 45. Defendants Wegman and Alic refused to provide Plaintiff with a reason for
10 refusing to return the artifacts to Plaintiff, or allow him periodic access or use of the artifacts. Id. ¶
11 46. Plaintiff was continually told by Defendants Garza, Betzinger, Gregory, Speidell, Wegman,
12 and Alic that Plaintiff brought on the confiscation and total deprivation because of his filing on
13 March 2, 2009. Id. ¶ 47.
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Plaintiff further alleges that Defendants Hubbard, Cate, Harrington, Biter, Soto, Phillips,

15 Da Veiga, Ozaeta, Betzinger, Gregory, Garza, Wegman, Alic, Grissom, Speidell, Davis, and
16 Foster were informed of and knew that their actions deprived Plaintiff of the use of sacred prayer
17 pipe, weekly sweat lodge ceremonies, and possession of the wings/feathers. Id. ¶ 74. Plaintiff was
18 denied Native American religious services between December 12, 2009 and February 1, 2012. Id.
19 Plaintiff received only one sweat lodge service between February 2009 and October 2009, and no
20 sweat lodge services from November 2009 to February 2012. Id. Plaintiff also complains that the
21 Defendants denied him access to a spiritual advisor, with access once between February 2009 to
22 June 2009 and no access from December 2009 to February 2012. Id. Plaintiff complains that other
23 religious groups, such as Catholics and Protestants who have weekly services, Native American
24 religious groups were denied regular, established practices of weekly sweat lodge services or
25 sacred pipe ceremonies. Id. ¶ 76.
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B.

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Plaintiff’s grievance, KVSP-0-09-00980, first submitted on March 2, 2009, had to be

Processing Appeals

28 submitted multiple times because it was continuously rejected by Defendant B. Da Veiga, who
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1 used exaggerated excuses to prevent process and exhaustion. Id. ¶ 48. Defendant Da Veiga
2 rejected the grievance seven times, and the grievance disappeared after Plaintiff re-submitted it for
3 the eighth time. Id. ¶ 49. Plaintiff submitted an administrative notice on October 25, 2009 directly
4 to Defendant Harrington concerning the conduct of his subordinates in refusing to respond to 602
5 inmate grievances. Defendant Harrington did not provide any response. Id. ¶ 53.
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C.

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On December 12, 2009, Plaintiff was stabbed by two purported Native American inmates

Inmate Attack

8 on the KVSP facility C yard. Id. ¶ 55. Plaintiff as the sacred pipe holder was obligated, as stated
9 by other inmates, to protect the sanctity of the pipe from desecration or wrongful confiscation,
10 with violence if necessary. Id. ¶ 57. Plaintiff had complained to Defendants Freir and Rankin and
11 other KVSP staff that his life and safety was placed in danger between February 2009 and
12 December 2009. Id. ¶ 58. As a result of this attempted murder, Plaintiff was stabbed numerous
13 times in his face, head, eye, and back, and suffered a punctured lung. Id. ¶ 59. Plaintiff was also
14 kicked in the head and face, suffering a swollen face, months of dizzy spells, and continued
15 headaches. Id. ¶ 60. Defendants Freir and Rankin stated that in response to Plaintiff filing 602
16 inmate complaint against Defendants Freir, Rankin, and Garza, they removed Plaintiff from the
17 EOP status in May 2009. Id. ¶ 63. Defendants’ removal came in spite of numerous pleas by
18 Plaintiff to remain in EOP, and knowingly exacerbated the threat of physical harm to Plaintiff. Id.
19 ¶ 64. Plaintiff went on suicide watch twice in fear of being attacked. Id. ¶ ¶ 65, 66. After the
20 attack, Plaintiff remained in administrative segregation from December 2009 to August 2010
21 pending transfer to another prison. Id. ¶ 68. Plaintiff suffered certain deprivations while in
22 administrative segregation. Id. ¶ 69.
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Plaintiff contends a violation of the First, Eighth, and Fourteenth Amendments, and

24 violations of 42 U.S.C. § 1981, § 1983, and § 2000cc, the Religious Land Use and
25 Institutionalized Persons Act of 2000. Plaintiff requests declaratory relief, nominal, compensatory,
26 and punitive damages, and appropriate injunctive relief.
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1 IV.

DISCUSSION

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A.

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Failure to State a Claim
1.

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Prior Screening Order

On September 28, 2012, this Court issued an order indicating that it had screened

5 Plaintiff’s complaint pursuant to 28 U.S.C. § 1915A and found that it stated a claim against 1)
6 Defendants Hubbard, Cate, Harrington, Biter, Soto, Phillips, Da Veiga, Ozaeta, Betzinger,
7 Gregory, Garza, Wegman, Alic, Grissom, Speidell, Davis, and Foster for violation of the Free
8 Exercise Clause of the First Amendment and the Equal Protection Clause of the Fourteenth
9 Amendment; 2) Defendant Garza for retaliation in violation of the First Amendment; and 3)
10 Defendants Harrington, Biter, Grissom, Soto, Da Veiga, Phillips, Ozaeta, Betzinger, Gregory,
11 Wegman, Alic, Freir, and Rankin for deliberate indifference to Plaintiff’s safety in violation of the
12 Eighth Amendment (ECF Nos. 23 & 27.) While the order finding a cognizable claim did not
13 include a full analysis,2 the Court conducted the same examination as it does in all screening
14 orders. In other words, the Court’s conclusion was based upon the same legal standards as this
15 12(b)(6) motion. Insofar as Defendants argue that Plaintiff’s claim should be dismissed for failure
16 to state a claim, they wholly fail to acknowledge the Court’s prior finding. 28 U.S.C. § 1915A;
17 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012).
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A screening order may not be ignored or disregarded. Ingle v. Circuit City, 408 F.3d 592,

19 594 (9th Cir. 2005). To the contrary, the existence of a screening order which utilized the same
20 legal standard upon which a subsequent motion to dismiss relies necessarily implicates the law of
21 the case doctrine. As a result, the moving party is expected to articulate the grounds for the
22 12(b)(6) motion in light of a screening order finding the complaint stated a claim. Ingle, 408 F.3d
23 at 594; Thomas v. Hickman, 2008 WL 2233566, *2-3 (E.D. Cal. 2008).
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In this regard, this Court recently explained:

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Generally, the Court provides a fully reasoned analysis only where it must explain why the complaint does not state
at least one claim. In cases where the complaint states only cognizable claims against all named defendants, the Court
will issue a shorter screening order notifying plaintiff that his complaint states a claim and that he must submit service
documents.

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If the defendants in a case which has been screened believe there is a good faith
basis for revisiting a prior determination made in a screening order, they must
identify the basis for their motion, be it error, an intervening change in the law, or
some other recognized exception to the law of the case doctrine. Ingle, 408 F.3d at
594 (“A district court abuses its discretion in applying the law of the case doctrine
only if (1) the first decision was clearly erroneous; (2) an intervening change in the
law occurred; (3) the evidence on remand was substantially different; (4) other
changed circumstances exist; or (5) a manifest injustice would otherwise result.”).
The duty of good faith and candor requires as much, and frivolous motions which
serve only to unnecessarily multiply the proceedings may subject the moving
parties to sanctions. Pacific Harbor Capital, Inc. v. Carnival Air Lines, Inc., 210
F.3d 1112, 1119 (9th Cir. 2000). Parties are not entitled to a gratuitous second bite
at the apple at the expense of judicial resources and in disregard of court orders.
Ingle, 408 F.3d at 594 (The law of the case “doctrine has developed to maintain
consistency and avoid reconsideration of matters once decided during the course of
a single continuing lawsuit.”) (internal quotation marks and citation omitted);
Thomas, 2008 WL 2233566, at *3 (for important policy reasons, the law of the case
doctrine disallows parties from a second bite at the apple).

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Chavez v. Yates, No. 1:09-cv-01080-AWI-SKO (PC) (E.D. Cal. Oct. 3, 2013) (ECF No.
41).
Here, rather than move forward with this action based upon the Court’s findings in

15 the screening order, Defendants now move to dismiss the claims based on the argument
16 that Plaintiff’s TAC does not demonstrate the required elements of the claims that the
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Court previously found cognizable.

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Analysis
a.

First Amendment—Free Exercise of Religion

The right to exercise religious practices and beliefs does not terminate at the prison door.
The free exercise right, however, is necessarily limited by the fact of incarceration, and may be
curtailed in order to achieve legitimate correctional goals or to maintain prison security.” McElyea
v. Babbitt, 833 F.2d 196, 197 (9th Cir. 1987) (citing O’Lone v. Shabazz, 482 U.S. 342 (1987)); see
Bell v. Wolfish, 441 U.S. 520, 545 (1979). Only beliefs which are both sincerely held and rooted in
religious beliefs trigger the Free Exercise Clause. Shakur v. Schriro, 514 F.3d 878, 884-85 (9th
Cir. 2008) (citing Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994)); Callahan v. Woods, 658 F.
2d 679, 683 (9th Cir. 1981)). Under this standard, “when a prison regulation impinges on inmates’

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1 constitutional rights, the regulation is valid if it is reasonably related to legitimate penological
2 interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). First, “there must be a valid, rational
3 connection between the prison regulation and the legitimate government interest put forward to
4 justify it,” and “the governmental objective must itself be a legitimate and neutral one.” Id. A
5 second consideration is “whether there are alternative means of exercising the right that remain
6 open to prison inmates.” Id. at 90 (internal quotations and citation omitted). A third consideration
7 is “the impact accommodation of the asserted right will have on guards and other inmates, and on
8 the allocation of prison resources generally.” Id. “Finally, the absence of ready alternatives is
9 evidence of the reasonableness of a prison regulation.” Id.
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Defendants argue in their Motion to Dismiss that 1) Defendants Biter, Phillips, Betzinger,

11 Gregory, Ozaeta, and Speidell cannot be liable based solely on their roles as supervisors; 2)
12 Defendants Biter, Da Viega, Betzinger, Gregory, and Speidell’s responses to Plaintiff’s grievances
13 cannot support a Free Exercise claim; and 3) Plaintiff fails to allege a causal connection between
14 Defendants Wegman and Alec and a constitutional deprivation.

However, the Court is

15 unpersuaded by Defendants argument and stands by its original screening order. At this stage,
16 Defendants have not shown that the screening order was clearly erroneous so as to avoid
17 application of the law of the case doctrine. Based on the allegations above, Plaintiff has set forth a
18 plausible claim for relief under the applicable screening standards. Ashcroft v. Iqbal, 556 U.S. 662
19 (2009); Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012); Hebbe v. Pliler, 627 F.3d 338,
20 342 (9th Cir. 2010) (prisoners proceeding pro se in civil rights actions are entitled to have their
21 pleadings liberally construed and to have any doubt resolved in their favor). Accordingly, the
22 Court recommends denying Defendants’ Motion to Dismiss on the basis of Plaintiff’s failure to
23 state a Free Exercise claim.
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b.

Fourteenth Amendment—Equal Protection

“The Equal Protection Clause . . . is essentially a direction that all persons similarly

26 situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439
27 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)). A prisoner is entitled “to ‘a reasonable
28 opportunity of pursuing his faith comparable to the opportunity afforded fellow prisoners who
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1 adhere to conventional religious precepts.’” Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008)
2 (quoting Cruz v. Beto, 405 U.S. 319, 321-22 (1972) (per curiam)). To state a claim, a plaintiff
3 must allege facts sufficient to support the claim that prison officials intentionally discriminated
4 against him on the basis of his religion by failing to provide him a reasonable opportunity to
5 pursue his faith compared to other similarly situated religious groups. Cruz, 405 U.S. at 321-22;
6 Shakur, 514 F.3d at 891; Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003); Lee v. City of
7 Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001); Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir.
8 1997), overruled in part on other grounds, Shakur, 514 F.3d at 884-85.
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Defendants argue in their Motion to Dismiss that Plaintiff fails to state an Equal Protection

10 claim because 1) Defendants did not administer American Indian religious services with
11 discriminatory purpose; 2) Defendants’ treatment of Plaintiff was not different from other inmates
12 of other religions housed in Administrative Segregation; and 3) Defendants cannot be held liable
13 based on their positions as supervisors or their responses to Plaintiff’s grievances. Again, the
14 Court is unpersuaded by Defendants argument and stands by its original screening order. At this
15 stage, Defendants have not shown that the screening order was clearly erroneous so as to avoid
16 application of the law of the case doctrine. Based on the allegations above, Plaintiff has set forth a
17 plausible claim for relief under the applicable screening standards. Ashcroft v. Iqbal, 556 U.S. 662
18 (2009); Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012); Hebbe v. Pliler, 627 F.3d 338,
19 342 (9th Cir. 2010) (prisoners proceeding pro se in civil rights actions are entitled to have their
20 pleadings liberally construed and to have any doubt resolved in their favor). Accordingly, the
21 Court recommends denying Defendants’ Motion to Dismiss on the basis of Plaintiff’s failure to
22 state an Equal Protection claim.
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c.

First Amendment—Retaliation

Allegations of retaliation against a prisoner’s First Amendment rights to speech or to

25 petition the government may support a § 1983 claim. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir.
26 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65
27 F.3d 802, 807 (9th Cir. 1995). Within the prison context, a viable claim of First Amendment
28 retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action
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1 against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4)
2 chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably
3 advance a legitimate correctional goal.” Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)
4 (quoting Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005)).
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Plaintiff has properly stated a First Amendment claim for retaliation against Defendant

6 Garza. Defendants’ Motion to Dismiss argues that Plaintiff fails to state a claim because the
7 actual removal of Plaintiff from the EOP level of care was undertaken by Defendant Rankin, and
8 not Defendant Garza. ECF No. 62-1 at 17. However, Plaintiff alleges in the TAC that Defendant
9 Garza stated that he would talk to Defendant Freir and have Plaintiff removed from EOP. TAC ¶ 31.
10 Plaintiff further alleges that Defendants Freir and Rankin stated that in response to Plaintiff filing a
11 602 inmate complaint against Defendants Freir, Rankin, and Garza, they removed Plaintiff from the
12 EOP status in May 2009. Id. ¶ 63. Plaintiff has set forth a plausible claim for relief under the
13 applicable screening standards. Ashcroft v. Iqbal, 556 U.S. 662 (2009); Wilhelm v. Rotman, 680
14 F.3d 1113, 1121 (9th Cir. 2012); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (prisoners
15 proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and
16 to have any doubt resolved in their favor).

Accordingly, the Court recommends denying

17 Defendants’ Motion to Dismiss on the basis of Plaintiff’s failure to state a First Amendment
18 retaliation claim.
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d.

Eighth Amendment—Failure to Protect

The Eighth Amendment protects prisoners from inhumane methods of punishment and

21 from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir.
22 2006). Extreme deprivations are required to make out a conditions of confinement claim, and only
23 those deprivations denying the minimal civilized measure of life’s necessities are sufficiently
24 grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian, 503 U.S. 1, 9
25 (1992) (citations and quotations omitted). Prison officials have a duty to take reasonable steps to
26 protect inmates from physical abuse. Hoptowit v. Ray, 682 F.2d 1237, 1250 (9th Cir. 1982). In
27 order to state a claim for violation of the Eighth Amendment, Plaintiff must allege facts sufficient
28 to support a claim that officials knew of and disregarded a substantial risk of serious harm to him.
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1 E.g., Farmer v. Brennan, 511 U.S. 825, 837 (1994); Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir.
2 1998). Mere negligence on the part of the official is not sufficient to establish liability, but rather,
3 the official’s conduct must have been wanton. Farmer, 511 U.S. at 835; Frost, 152 F.3d at 1128.
4

Defendants argue in their Motion to Dismiss that Plaintiff fails to state an Eighth

5 Amendment claims because 1) the confiscation of Plaintiff’s sacred pipe did not inform
6 Defendants that Plaintiff was a substantial risk; and 2) that Defendant Rankin’s medical decision
7 regarding Plaintiff’s mental health classification fails to state a claim.

Plaintiff alleges that

8 Defendants Harrington, Biter, Grissom, Soto, Da Veiga, Phillips, Ozaeta, Betzinger, Gregory,
9 Wegman, Alic, Freir, and Rankin knew of Plaintiff’s safety concerns as a direct result of the
10 alleged desecration and wrongful confiscation of the sacred pipe and religious artifacts, and failed
11 to take any actions to protect Plaintiff from the harm. TAC ¶ 96. Plaintiff has set forth a plausible
12 claim for relief under the applicable screening standards. Ashcroft v. Iqbal, 556 U.S. 662 (2009);
13 Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012); Hebbe v. Pliler, 627 F.3d 338, 342 (9th
14 Cir. 2010) (prisoners proceeding pro se in civil rights actions are entitled to have their pleadings
15 liberally construed and to have any doubt resolved in their favor).

Accordingly, the Court

16 recommends denying Defendants’ Motion to Dismiss on the basis of Plaintiff’s failure to state an
17 Eighth Amendment claim.
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B.

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Plaintiff’s amended complaint names Defendants in both their individual and official

Official Capacity Claims

20 capacities. (ECF No. 23 at 6.) The Eleventh Amendment precludes Plaintiff’s suit against
21 Defendants in their official capacity for monetary damages. States and state agencies are protected
22 against suit in federal court by the Eleventh Amendment. Lovell v. Chandler, 303 F.3d 1039, 1050
23 (9th Cir. 2002); Papasan v. Allain, 478 U.S. 265, 276-77 (1986); Pennhurst State School & Hosp.
24 v. Halderman, 465 U.S. 89, 100 (1984). The Eleventh Amendment bars civil rights actions in the
25 federal courts by a citizen against a state or its agencies unless the state has waived its immunity or
26 Congress has overridden that immunity. Will v. Michigan Dept. of State Police, 491 U.S. 58, 66
27 (1989); Stivers v. Pierce, 71 F.3d 732, 749 (9th Cir. 1995). “The State of California has not
28 waived its Eleventh Amendment immunity with respect to claims brought under § 1983 in federal
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1 court, and the Supreme Court has held that Ԥ 1983 was not intended to abrogate a State's Eleventh
2 Amendment immunity[.]’” Dittman v. State of California, 191 F.3d 1020, 1025-26 (9th Cir. 1999)
3 (citations omitted), cert. denied, 530 U.S. 1261 (2000). Accordingly, the Court recommends that
4 Defendants’ Motion to Dismiss be granted in regards to the claims against Defendants in their
5 official capacities for any monetary damages.
6 V.

CONCLUSION AND RECOMMENDATION

7

Based on the foregoing, the Court HEREBY RECOMMENDS that Defendants’ Motion to

8 Dismiss, filed on July 29, 2013, be DENIED in part and GRANTED in part as follows:
9

Defendants’ Motion to Dismiss based on Plaintiff’s failure to state a claim is

1.

10 DENIED; and
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2.

Defendants’ Motion to Dismiss the claims against Defendants in their official

12 capacity for monetary damages is GRANTED.
13

These Findings and Recommendations will be submitted to the United States District

14 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within
15 thirty (30) days after being served with these Findings and Recommendations, the parties may
16 file written objections with the Court. Local Rule 304(b). The document should be captioned
17 “Objections to Magistrate Judge’s Findings and Recommendations.” The parties are advised that
18 failure to file objections within the specified time may waive the right to appeal the District
19 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
Dated:

/s/ Dennis

May 9, 2014

L. Beck

UNITED STATES MAGISTRATE JUDGE

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