Gonzalez v. Diaz, et al.

Filing 7

ORDER DISMISSING 1 COMPLAINT WITH LEAVE TO AMEND, signed by Magistrate Judge Gerald B. Cohn on 7/6/2011. Amended Complaint due within thirty (30) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ALFREDO GONZALEZ,

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CASE NO.

Plaintiff,

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1:10-cv-01287-GBC (PC)

COMPLAINT DISMISSED WITH LEAVE TO
AMEND

v.
(ECF No. 1)

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A. DIAZ, et al.,
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AMENDED COMPLAINT DUE WITHIN
THIRTY DAYS

Defendants.

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SCREENING ORDER

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I.

PROCEDURAL HISTORY

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Plaintiff Alfredo Gonzalez (“Plaintiff”) is an inmate in the custody of the California

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Department of Corrections and Rehabilitation (“CDCR”), and is proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this

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action on July 20, 2010. (ECF No. 1.) No other parties have appeared.

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Plaintiff’s Complaint is now before the Court for screening. For the reasons set forth
below, the Court finds that Plaintiff failed to state a claim upon which relief may be granted.

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II.

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SCREENING REQUIREMENTS
The Court is required to screen complaints brought by prisoners seeking relief

against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has

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raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which

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relief may be granted, or that seek monetary relief from a defendant who is immune from

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such relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion

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thereof, that may have been paid, the court shall dismiss the case at any time if the court

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determines that . . . the action or appeal . . . fails to state a claim upon which relief may be

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granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are

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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by

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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949

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(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set

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forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its

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face.’” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual

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allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.

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III.

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SUMMARY OF COMPLAINT
Plaintiff alleges that his First Amendment rights were violated by Defendants’

retaliatory conduct, that his due process rights were violated, and that he was denied

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access to the courts. Plaintiff names the following individuals as Defendants: A. Diaz, R.
Davis, R. Chavez, R. Schneider, I. Bueno, T. Cano, L. Nelson, J. Jones, M. Junious, and
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N. Grannis.
Plaintiff alleges the following: On April 16, 2008, Plaintiff was placed in
administrative segregation (“ad-seg”) for possession of an inmate manufactured weapon.

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Plaintiff appeared before the Institutional Classification Committee (“ICC”) for his initial

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hearing on April 25, 2008. Defendant Diaz was the acting captain. On May 23, 2008,

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Plaintiff had a rule violation report (“RVR”) hearing where Diaz was the senior hearing

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officer. Plaintiff was found guilty of possession of a weapon. Plaintiff filed a grievance in

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response to the guilty verdict and Diaz’s participation in both of his hearings. On June 26,

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2008, Plaintiff appeared before the ad-seg ICC and was assessed an indeterminate term

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in the secured housing unit (“SHU”).

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On October 1, 2008, Plaintiff and other inmates were placed in holding cages to be

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processed for a transfer to the SHU. The inmates’ property was also being processed;

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however, Plaintiff’s property was not present or being processed. Plaintiff asked Diaz

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about his property. Diaz responded that Plaintiff would get his property when he stopped

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filing 602s.

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Plaintiff did not receive an ICC hearing within ten days of his arrival, nor did he
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receive a hearing within thirty days of the expiration of his MERD. On December 15, 2008,

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Plaintiff received a 114d from Defendant Schneider that stated, in part, that Plaintiff was

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being retained in SHU for an indeterminate term and would appear before ICC on

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December 18, 2008. Plaintiff told Schneider that his due process rights were being

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violated as his MERD was December 1, 2008. Schneider responded that Plaintiff should

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not have filed so many 602s.
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On December 18, 2008, Plaintiff appeared before the ICC. He was issued an
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indeterminate SHU term and said to be a threat to the safety and security of the institution.

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Plaintiff told the ICC, composed of Defendants Davis, Chavez, Schneider, and Bueno, that

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he had not received the required hearing prior to this one. Davis told him to file another

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602. Plaintiff filed a grievance against the ICC on December 10, 2008.

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Plaintiff still did not have his personal property, so he filed a grievance. As Plaintiff

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was being prepared for a transfer, his property was “transpacked” by SHU staff on June

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8, 2009. Plaintiff informed SHU staff that he had other property in a different building that

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also needed to be transferred. Plaintiff’s property was located and he was told that it would

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either be on the bus with Plaintiff for the transfer the following day or it would be sent in

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three to four weeks. Plaintiff was transferred on June 9, 2009. Plaintiff’s personal property
was finally returned to him on October 5, 2009; however, books were still missing.
Plaintiff seeks declaratory relief, compensatory, exemplary, and punitive damages

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among other listed relief.

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IV.

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ANALYSIS
The Civil Rights Act under which this action was filed provides:

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Every person who, under color of [state law] . . . subjects, or
causes to be subjected, any citizen of the United States . . . to
the deprivation of any rights, privileges, or immunities secured
by the Constitution . . . shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for
redress.

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42 U.S.C. § 1983. “Section 1983 . . . creates a cause of action for violations of the federal

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Constitution and laws.” Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir.

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1997) (internal quotations omitted).

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//

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A.

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Plaintiff states that he is being retaliated against by Defendants Davis, Chavez,

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Retaliation Claim

Schneider, Bueno, Diaz, Nelson, Cano, and Jones for exercising his constitutional rights.

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“Within the prison context, a viable claim of First Amendment retaliation entails five

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basic elements: (1) An assertion that a state actor took some adverse action against an

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inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled

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the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably

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advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th

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Cir. 2005).

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Plaintiff has failed to plead facts sufficient to sustain a claim of retaliation by prison

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officials. Plaintiff states that all Defendants were retaliating against him because of his

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filing of grievances. Plaintiff claims that Defendants Davis, Chavez, Schneider, and Bueno

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retaliated against him by refusing him an ICC hearing and by giving him an indeterminate

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SHU term. Plaintiff claims that Defendant Diaz retaliated against him by keeping his

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personal property from him. Plaintiff claims that Defendants Nelson, Cano, and Jones

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retaliated against him by inappropriately screening out Plaintiff’s grievances.
Filing a grievance is a protected action under the First Amendment. Valandingham

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v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989).

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indeterminate SHU sentence would be adverse actions. Keeping Plaintiff’s personal

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property from him would be an adverse action. Inappropriately screening out Plaintiff’s

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Refusing a hearing and an

grievances would also be an adverse action. Thus, Plaintiff has satisfied the first and third

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prongs of the retaliation standard as to all eight Defendants.
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With respect to the fourth prong, “[it] would be unjust to allow a defendant to escape
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liability for a First Amendment violation merely because an unusually determined plaintiff

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persists in his protected activity . . . .” Mendocino Envtl. Ctr. v. Mendocino County, 192

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F.3d 1283, 1300 (9th Cir. 1999). The correct inquiry is to determine whether an official’s

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acts would chill or silence a person of ordinary firmness from future First Amendment

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activities. Rhodes, 408 F.3d at 568-69 (citing Mendocino Envtl. Ctr., 192 F.3d at 1300).

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Though Plaintiff has failed to plead any facts as to whether he was chilled because of the

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above described adverse actions, the Court finds that he has satisfied the fourth prong

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because a person of ordinary firmness would be chilled by such activities.

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The second element of a prisoner retaliation claim focuses on causation and motive.

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See Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009). A plaintiff must show that his

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protected conduct was a “‘substantial’ or ‘motivating’ factor behind the defendant’s

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conduct.” Id. (quoting Morgan, 874 F.2d at 1314). Although it can be difficult to establish

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the motive or intent of the defendant, a plaintiff may rely on circumstantial evidence. Bruce

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v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003) (finding that a prisoner established a triable

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issue of fact regarding prison officials’ retaliatory motives by raising issues of suspect

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timing, evidence, and statements); Hines v. Gomez, 108 F.3d 265, 267-68 (9th Cir. 1997);
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Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995) (“timing can properly be considered as
circumstantial evidence of retaliatory intent”).

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As to Defendants Davis, Chavez, Schneider, and Bueno, Plaintiff has not alleged

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sufficient facts demonstrating causation and motive. Plaintiff states that he told Schneider

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that he had not received a hearing within the time limitations and Schneider told him that

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he should not have been filing so many grievances. During an ICC hearing, Plaintiff
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informed Defendants Davis, Chavez, Schneider, and Bueno of the due process violations
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and Davis responded that he should go file a grievance since he had so much practice at

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it. Plaintiff fails to demonstrate that these Defendants were aware of the alleged due

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process violations before the ICC hearing. Plaintiff told Schneider on the day Plaintiff

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received notice that he was going to receive a hearing. Plaintiff did not state that he had

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previously filed a grievance related to this lack of due process, which Defendants could

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have had knowledge of.

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As to Defendant Diaz, Plaintiff stated that when Plaintiff asked Diaz where his

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property was, Diaz responded that Plaintiff should not have filed all of his 602s. Plaintiff

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has demonstrated causation as to Diaz.

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As to Defendants Nelson, Cano, and Jones, Plaintiff details many grievances and

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many screen outs. However, Plaintiff does not demonstrate any causation or motive for

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these three Defendants. He merely states that he repeatedly screened out Plaintiff’s

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grievances for a multitude of reasons.

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With respect to the fifth prong, a prisoner must affirmatively allege that “the prison
authorities’ retaliatory action did not advance legitimate goals of the correctional institution

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or was not tailored narrowly enough to achieve such goals.” Rizzo, 778 F.2d at 532. This
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is not a high burden to reach. See id. (prisoner’s allegations that search was arbitrary and
capricious sufficient to satisfy this inquiry)

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As to Defendants Davis, Chavez, Schneider, and Bueno, Plaintiff has not

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demonstrated that him not receiving a hearing was anything more than negligence. Also,

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Plaintiff also fails to demonstrate that the indeterminate SHU term was not appropriate

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considering Plaintiff’s violation. As to Defendant Diaz, it again appears that keeping
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Plaintiff’s property from him could have been a result of Plaintiff being held in the SHU,
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which would serve a legitimate penological goal. As to Defendants Nelson, Cano, and

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Jones, in describing the screen-outs, Plaintiff cites the reason given on each. These

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appear to be appropriate and would serve a legitimate penological purpose. It appears that

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Plaintiff just did not agree with the reasons and resulting screen-outs. Thus, Plaintiff has
failed to meet the fifth prong as to all Defendants.

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Because Plaintiff has failed to allege sufficient facts to satisfy all five prongs of his

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retaliation claim, the Court finds that he has failed to state a claim upon which relief could

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be granted. The Court will give Plaintiff leave to amend and cure the deficiencies noted

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herein.

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B.

Due Process Claim

Plaintiff alleges violations of his rights to due process by Defendants in relation to
not receiving timely hearings and the retention of his property.

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The Due Process Clause protects against the deprivation of liberty without due

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process of law. Wilkinson v. Austin, 545 U.S. 209, 221 (2005). In order to invoke the

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protection of the Due Process Clause, a plaintiff must first establish the existence of a

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liberty interest for which the protection is sought. Id. Liberty interests may arise from the

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Due Process Clause itself or from state law. Id. The Due Process Clause itself does not

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confer on inmates a liberty interest in avoiding “more adverse conditions of confinement.”

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Id. Under state law, the existence of a liberty interest created by prison regulations is

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determined by focusing on the nature of the deprivation. Sandin v. Conner, 515 U.S. 472,

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481-84 (1995). Liberty interests created by state law are “generally limited to freedom from

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restraint which . . . imposes atypical and significant hardship on the inmate in relation to
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the ordinary incidents of prison life.” Id. at 484; Myron v. Terhune, 476 F.3d 716, 718 (9th
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Cir. 2007).

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Hearing

Plaintiff alleges that his due process rights were violated by Defendants when they

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failed to have a timely hearing as related to Plaintiff’s continuing SHU confinement.

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Constitutionally protected liberty interests “will be generally limited to freedom from

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restraint which, while not exceeding the sentence in such an unexpected manner as to give

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rise to protection by the Due Process Clause of its own force, nonetheless imposes

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atypical and significant hardship on the inmate in relation to the ordinary incidents of prison

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life.” Sandin v. Connor, 515 U.S. 472, 483–84 (1995). Determining whether a prison

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condition is “atypical and significant” requires consideration of the specific facts of each

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case. Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996). The Court considers three

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guideposts in framing the inquiry: (1) whether the challenged condition mirrored those

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conditions imposed upon inmates in administrative segregation and protective custody, and

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thus comported with the prison’s discretionary authority; (2) the duration of the condition

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and the degree of restraint imposed; and (3) whether the state’s action will invariably affect

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the duration of the prisoner’s sentence. Serrano v. Francis, 345 F.3d 1071, 1078 (9th Cir.
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2003).

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Challenging the sufficiency of procedures employed in initially placing a prisoner in

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the secured housing unit is different from challenging the sufficiency of procedures used

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in determining whether to retain a prisoner in administrative segregation. See Hewitt v.

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Helms, 459 U.S. 460, 477 n. 9, overruled on other grounds by Sandin, 515 U.S. 472;

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Toussaint v. McCarthy, 801 F.2d 1080, 1101 (9th Cir. 1986); Sheley v. Dugger, 833 F.2d
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1420 (11th Cir. 1987). As the United State Supreme Court noted in dicta:
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Prison officials must engage in some sort of periodic review of the confinement of
[administratively segregated] inmates. This review will not necessarily require that
prison officials permit the submission of any additional evidence or statements. The
decision whether a prisoner remains a security risk will be based on facts relating
to a particular prisoner-which will have been ascertained when determining to
confine the inmate to administrative segregation-and on the officials’ general
knowledge of prison conditions and tensions, which are singularly unsuited for
“proof” in any highly structured manner.

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Hewitt, 459 U.S. at 477 n. 9, overruled on other grounds by Sandin, 515 U.S. 472. Periodic

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reviews that a prisoner receives while being held in the administrative segregation unit are

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sufficient procedural protections to satisfy the Due Process Clause. See Hewitt, 459 U.S.

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at 477 n. 9, overruled on other grounds by Sandin, 515 U.S. 472; Toussaint, 801 F.2d at

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1101 (instructing that while prison officials must engage in some sort of periodic review of

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the confinement of prisoners held in administrative segregation, this review does not

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require that prison officials permit the submission of additional evidence or statements);

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Black v. Parke, 4 F.3d 442, 447–48 (6th Cir. 1993); Sheley v. Dugger, 833 F.2d 1420 (11th

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Cir. 1987); Pina v. McGrath, 299 Fed.Appx. 726, 727 (9th Cir. 2008) (unpublished); see

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also McKeithan v. Beard, 322 Fed.Appx. 194, 199 (3d Cir. 2009) (unpublished).

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Plaintiff states that he was placed in the SHU in October 2008 and did not receive
a hearing until December 18, 2008. Plaintiff states that he told Defendant Schneider that

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he had not received a hearing on the same day that he received notice that a hearing had

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been scheduled. Plaintiff does not allege that any of the Defendants were aware that

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Plaintiff had not received a hearing. Nor does Plaintiff allege that any of the named

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Defendants were responsible for setting a hearing. As currently pleaded, the Court is

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unable to determine if Plaintiff’s due process rights were violated. Thus, Plaintiff will be

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given leave to amend. In his amended complaint, Plaintiff must describe in greater detail

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who knew he hadn’t had a hearing, who was responsible for setting the hearings, etc.

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2.

Property

Plaintiff alleges that his due process rights were violated by Defendant Diaz who
kept his property from him.

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The Due Process Clause protects prisoners from being deprived of property without

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due process of law, Wolff, 418 U.S. at 556, and prisoners have a protected interest in their

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personal property, Hansen v. May, 502 F.2d 728, 730 (9th Cir.1974). However, while an

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authorized, intentional deprivation of property is actionable under the Due Process Clause,

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Hudson v. Palmer, 468 U.S. 517, 532 n. 13 (1984) (citing Logan v. Zimmerman Brush Co.,

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455 U.S. 422, 435-36 (1982)); Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir. 1985), neither

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negligent nor unauthorized intentional deprivations of property by a state employee

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“constitute a violation of the procedural requirements of the Due Process Clause of the

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Fourteenth Amendment if a meaningful post-deprivation remedy for the loss is available,”

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Hudson, 468 U.S. at 533.
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California Law provides an adequate post-deprivation remedy for any property

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deprivations. See Cal. Gov’t Code §§ 895; Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir.

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1994). California’s Tort Claims Act requires that a tort claim against a public entity or its

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employees be presented to the California Victim Compensation and Government Claims

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Board, formerly known as the State Board of Control, no more than six months after the

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cause of action accrues. Cal. Gov’t Code §§ 905.2, 910, 911.2, 945.4, 950-950.2 (West
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2006). Presentation of a written claim, and action on or rejection of the claim, are
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conditions precedent to suit. State v. Superior Court of Kings County (Bodde), 90 P.3d

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116, 123 (2004); Mangold v. California Pub. Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir.

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1995). To state a tort claim against a public employee, a plaintiff must allege compliance

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with the Tort Claims Act. State v. Superior Court, 90 P.3d at 123; Mangold, 67 F.3d at
1477; Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 627 (9th Cir. 1988).

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Plaintiff states that Defendant Diaz kept his property from him in violation of his due

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process rights. This conclusory allegation does not demonstrate anything in relation to this

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claim. Also, Plaintiff does not include proof of compliance with the California Tort Claims

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Act. Plaintiff will be given leave to amend.

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C.

Access to Courts

Plaintiff appears to be alleging that he was denied access to the courts by
Defendants through their mishandling of his appeals.

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Inmates have a fundamental constitutional right of access to the courts. Lewis v.

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Casey, 518 U.S. 343, 346 (1996). However, the right is limited to direct criminal appeals,

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habeas petitions, and civil rights actions. Id. at 354. Claims for denial of access to the

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courts may arise from the frustration or hindrance of “a litigating opportunity yet to be

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gained” (forward-looking access claim) or from the loss of a meritorious suit that cannot

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now be tried (backward-looking claim). Christopher v. Harbury, 536 U.S. 403, 412-15

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(2002). Forward-looking claims allege “that systemic official action frustrates a plaintiff or

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plaintiff class in preparing and filing suits at the present time.” Christopher, 536 U.S. at

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413. In these cases that have yet to be litigated, “the justification for recognizing that

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[forward-looking] claim, is to place the plaintiff in a position to pursue a separate claim for
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relief once the frustrating condition has been removed.” Id. As part of the requirement to
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plead an injury, a plaintiff must allege that “a nonfrivolous legal claim had been frustrated

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or was being impeded.” Lewis, 518 U.S. at 353; see also Christopher, 536 U.S. at 415.

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Simply stating that a claim is “nonfrivolous” due to the action of a government official will

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not satisfy the actual injury requirement. Christopher, 536 U.S. at 415. Rather, the

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nonfrivolous “underlying cause of action and its lost remedy must be addressed by

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allegations in the complaint sufficient to give fair notice to a defendant.” Id. at 416. The

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plaintiff must describe this “predicate claim . . . well enough to apply the ‘nonfrivolous’ test

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and to show that the ‘arguable’ nature of the underlying claim is more than hope.” Id. The

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complaint should “state the underlying claim in accordance with Federal Rule of Civil

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Procedure 8(a) just as if it were being independently pursued, and a like plain statement

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should describe any remedy available under the access claim and presently unique to it.”

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Id. at 417-18; see Lewis, 518 U.S. at 353 n. 3 (“Depriving someone of an arguable (though

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not yet established) claim inflicts actual injury because it deprives him of something of

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value-arguable claims are settled, bought and sold. Depriving someone of a frivolous

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claim, on the other hand, deprives him of nothing at all, except perhaps the punishment of

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Rule 11 sanctions.”).
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When a prisoner asserts that he was denied access to the courts and seeks a

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remedy for a lost opportunity to present a legal claim, he must show: (1) the loss of a

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non-frivolous or arguable underlying claim; (2) the official acts that frustrated the litigation;

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and (3) a remedy that may be awarded as recompense but that is not otherwise available

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in a future suit. Phillips v. Hust, 477 F.3d 1070, 1076 (9th Cir. 2007) (citing Christopher,

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536 U.S. at 413-414, overruled on other grounds, Hust v. Phillips, 129 S.Ct. 1036 (2009)).
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The Court has difficulty discerning which facts Plaintiff is alleging in support of his
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denial of access to the courts claim. Plaintiff states that his 602 grievances have been

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mishandled. Having reviewed the allegations in the Complaint, the Court finds that Plaintiff

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has failed to state a claim for denial of access to the courts. Plaintiff fails to describe in

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detail any action that he has been unable to pursue and also fails to show how such action

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would not be frivolous. Thus, the Court dismisses this claim and will grant Plaintiff leave

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to amend this claim.

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D.

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Plaintiff appears to be alleging that Defendants mishandled his grievance forms.

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Inmate Appeal Process

Defendants’ actions in responding to Plaintiff’s appeals alone cannot give rise to any

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claims for relief under Section 1983 for violation of due process. “[A prison] grievance

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procedure is a procedural right only, it does not confer any substantive right upon the

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inmates.”

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DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982)); see also Ramirez v. Galaza, 334 F.3d 850,

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860 (9th Cir. 2003) (no liberty interest in processing of appeals because no entitlement to

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Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (citing Azeez v.

a specific grievance procedure); Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001)

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(existence of grievance procedure confers no liberty interest on prisoner); Mann v. Adams,

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855 F.2d 639, 640 (9th Cir. 1988). “Hence, it does not give rise to a protected liberty

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interest requiring the procedural protections envisioned by the Fourteenth Amendment.”

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Azeez, 568 F. Supp. at 10; Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986).

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Actions in reviewing a prisoner’s administrative appeal cannot serve as the basis for liability

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under a Section 1983 action. Buckley, 997 F.2d at 495.

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Because Plaintiff has neither a liberty interest nor a substantive right in inmate
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appeals, Plaintiff fails to state a claim in this regard. Because amendment of this claim
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would be futile, the Court advises Plaintiff that he would be well-served devoting his energy

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to pursuing his other claims.

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E.

Conspiracy

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Plaintiff makes one statement that he is pursuing a conspiracy claim.

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To state a viable conspiracy claim pursuant to Section 1983, a plaintiff must “state

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specific facts to support the existence of the claimed conspiracy.” Burns v. Cnty. of King,

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883 F.2d 819, 821 (9th Cir. 1989) (citation omitted). The Ninth Circuit has held that “each

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participant in the conspiracy need not know the exact details of the plan, but each

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participant must at least share the common objective of the conspiracy.” Franklin v. Fox,

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312 F.3d 423, 441 (9th Cir. 2002) (quoting United Steelworkers of Am. v. Phelps Dodge

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Corp., 865 F.2d 1539, 1541 (9th Cir. 1989) (citation omitted)). Plaintiff must therefore

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show “an agreement or ‘meeting of the minds’ to violate constitutional rights.” Id.

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However, “[s]uch an agreement need not be overt, and may be inferred on the basis of

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circumstantial evidence such as the actions of the defendants.” Mendocino Envtl. Ctr. v.

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Mendocino Cnty., 192 F.3d 1283, 1301 (9th Cir. 1999) (citation omitted). Accordingly, “a

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showing that the alleged conspirators have committed acts that are unlikely to have been

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undertaken without an agreement” may indicate the existence of a conspiracy. Id. (citation

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and internal quotation marks omitted).

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Section 1985 proscribes conspiracies that interfere with an individual’s civil rights.

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Section 1985(2) proscribes conspiracies for the purpose of impeding the due course of

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justice in any state with the intent to deny equal protection of the laws, and Section 1985(3)

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proscribes conspiracies that deny equal protection of the law or equal privileges and
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immunities. Coverdell v. Dep’t. of Soc. and Health Svcs., State of Washington, 834 F.2d
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758, 767 (9th Cir. 1987). An allegation of racial or class-based discrimination is required

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to state a claim for relief under either Section 1985(2) or Section 1985(3). Bretz v. Kelman,

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773 F.2d 1026, 1028-1030 (9th Cir. 1985).

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To state a cause of action under Section 1985(3), Plaintiff must allege: (1) a

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conspiracy, (2) to deprive any person or class of persons of the equal protection of the

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laws, (3) an act by one of the conspirators in furtherance of the conspiracy, and (4) a

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personal injury, property damage or deprivation of any right or privilege of a citizen of the

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United States.

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Gillispie v. Civiletti, 629 F.2d 637, 641 (9th Cir. 1980); Giffin v.

Breckenridge, 403 U.S. 88, 102-03 (1971). Section 1985 applies only where there is a

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racial or other class-based discriminatory animus behind the conspirators’ actions. Sever
v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992).

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In interpreting these standards, the Ninth Circuit has held that a claim under Section

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1985 must allege specific facts to support the allegation that defendants conspired

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together. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 626 (9th Cir. 1988).

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A mere allegation of conspiracy without factual specificity is insufficient to state a claim

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under 42 U.S.C. § 1985. Id.; Sanchez v. City of Santa Anna, 936 F.2d 1027, 1039 (9th Cir.
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1991).

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Plaintiff makes one statement that Defendant Diaz conspired to retaliate against

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him. He states nothing else relevant to this claim. His claim is missing the most basic

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elements: meeting of the minds and violation of constitutional rights. Plaintiff does not

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demonstrate a meeting of the minds between Defendants. He does not say which other

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Defendants were involved in the conspiracy. The facts, as currently pleaded, Plaintiff does
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not identify any violations of any constitutional rights. Thus, this claim is dismissed.
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Plaintiff will be given leave to amend.
F.

Personal Participation and Supervisory Liability

Plaintiff appears to be arguing that Defendant Junious is liable for the conduct of

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subordinates as, according to Plaintiff’s statement of facts, he was not present and did not

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participate in the complained of conduct. In fact, Defendant Junious is not mentioned at

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all in the factual allegations that make up Plaintiff’s Complaint.

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Under Section 1983, Plaintiff must demonstrate that each named Defendant

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personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930,

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934 (9th Cir. 2002). The Supreme Court has emphasized that the term “supervisory

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liability,” loosely and commonly used by both courts and litigants alike, is a misnomer.

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Iqbal, 129 S.Ct. at 1949.

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unconstitutional conduct of their subordinates under a theory of respondeat superior.” Id.

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at 1948. Rather, each government official, regardless of his or her title, is only liable for

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his or her own misconduct, and therefore, Plaintiff must demonstrate that each defendant,

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“Government officials may not be held liable for the

through his or her own individual actions, violated Plaintiff’s constitutional rights. Id. at

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1948-49.

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When examining the issue of supervisor liability, it is clear that the supervisors are

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not subject to vicarious liability, but are liable only for their own conduct. Jeffers v. Gomez,

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267 F.3d 895, 915 (9th Cir. 2001); Wesley v. Davis, 333 F.Supp.2d 888, 892 (C.D.Cal.

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2004). In order to establish liability against a supervisor, a plaintiff must allege facts

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demonstrating (1) personal involvement in the constitutional deprivation, or (2) a sufficient

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causal connection between the supervisor’s wrongful conduct and the constitutional
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violation. Jeffers, 267 F.3d at 915; Wesley, 333 F.Supp.2d at 892. The sufficient causal
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connection may be shown by evidence that the supervisor implemented a policy so

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deficient that the policy itself is a repudiation of constitutional rights.

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Wesley, 333

F.Supp.2d at 892 (internal quotations omitted). However, an individual’s general

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responsibility for supervising the operations of a prison is insufficient to establish personal
involvement. Id. (internal quotations omitted).

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Supervisor liability under Section 1983 is a form of direct liability. Munoz v.

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Kolender, 208 F.Supp.2d 1125, 1149 (S.D.Cal. 2002). Under direct liability, Plaintiff must

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show that Defendant breached a duty to him which was the proximate cause of his injury.

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Id. “‘The requisite causal connection can be established . . . by setting in motion a series

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of acts by others which the actor knows or reasonably should know would cause others to

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inflict the constitutional injury.’” Id. (quoting Johnson v. Duffy, 588 F.2d 740, 743-744 (9th

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Cir. 1978)).

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Plaintiff has not alleged facts demonstrating that Defendant Junious personally

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acted to violate his rights. In his Amended Complaint, Plaintiff needs to specifically link

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each Defendant to a violation of his rights. Plaintiff shall be given the opportunity to file an

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amended complaint curing the deficiencies in this respect.
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V.

CONCLUSION AND ORDER

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The Court finds that Plaintiff’s Complaint fails to state any Section 1983 claims upon

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which relief may be granted. The Court will provide Plaintiff time to file an amended

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complaint to address the potentially correctable deficiencies noted above. See Noll v.

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Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). In his Amended Complaint, Plaintiff must

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demonstrate that the alleged incident or incidents resulted in a deprivation of his
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constitutional rights. Iqbal, 129 S.Ct. at 1948-49. Plaintiff must set forth “sufficient factual
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matter . . . to ‘state a claim that is plausible on its face.’” Iqbal, 129 S.Ct. at 1949 (quoting

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Twombly, 550 U.S. at 555). Plaintiff must also demonstrate that each defendant personally

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participated in the deprivation of his rights. Jones, 297 F.3d at 934.

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Plaintiff should note that although he has been given the opportunity to amend, it

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is not for the purposes of adding new claims or defendants, other than as requested by the

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Court. Plaintiff should focus the amended complaint on claims and defendants discussed

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herein.

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Finally, Plaintiff is advised that Local Rule 220 requires that an amended complaint
be complete in itself without reference to any prior pleading. As a general rule, an

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amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55,

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57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no longer

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serves any function in the case. Therefore, in an amended complaint, as in an original

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complaint, each claim and the involvement of each defendant must be sufficiently alleged.

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The amended complaint should be clearly and boldly titled “First Amended Complaint,”

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refer to the appropriate case number, and be an original signed under penalty of perjury.

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Based on the foregoing, it is HEREBY ORDERED that:
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1.

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Plaintiff’s complaint is dismissed for failure to state a claim, with leave to file

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an amended complaint within thirty (30) days from the date of service of this

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order;

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2.

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Plaintiff shall caption the amended complaint “First Amended Complaint” and
refer to the case number 1:10-cv-1287-GBC (PC); and

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//
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///
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3.

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If Plaintiff fails to comply with this order, this action will be dismissed for
failure to state a claim upon which relief may be granted.

IT IS SO ORDERED.

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Dated:
1j0bbc

July 6, 2011
UNITED STATES MAGISTRATE JUDGE

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