Buenrostro v. Castillo et al
Filing
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ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND; Amended Complaint due by 5/19/2014, signed by Magistrate Judge Barbara A. McAuliffe on 04/15/2014. (Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JOSE LUIS BUENROSTRO,
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Plaintiff,
v.
J. CASTILLO, et al.,
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Defendants.
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1:14-cv-00075-BAM (PC)
ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND
(ECF No. 1)
THIRTY-DAY DEADLINE
First Screening Order
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I.
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Plaintiff Jose Luis Buenrostro (“Plaintiff”) is a federal prisoner proceeding pro se and in
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forma pauperis in this civil action pursuant to Bivens v. Six Unknown Named Agents of Federal
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Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971). Plaintiff‟s complaint, filed on January
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17, 2014, is currently before the Court for screening.
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Screening Requirement and Standard
The Court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. §
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1915A(a). Plaintiff‟s complaint, or any portion thereof, is subject to dismissal if it is frivolous or
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malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary
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relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28
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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 not
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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,
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1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65
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(2007)). While a plaintiff‟s allegations are taken as true, courts “are not required to indulge
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unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)
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(internal quotation marks and citation omitted).
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While prisoners proceeding pro se in civil rights actions are still entitled to have their
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pleadings liberally construed and to have any doubt resolved in their favor, the pleading standard
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is now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), and to
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survive screening, Plaintiff‟s claims must be facially plausible, which requires sufficient factual
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detail to allow the Court to reasonably infer that each named defendant is liable for the
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misconduct alleged, Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss v.
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United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a
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defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of
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satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks
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omitted); Moss, 572 F.3d at 969.
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Bivens actions and actions under 42 U.S.C. § 1983 “are identical save for the
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replacement of a state actor under § 1983 by a federal actor under Bivens.” Van Strum v. Lawn,
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940 F.2d 406, 409 (9th Cir.1991). Under Bivens, a plaintiff may sue a federal officer in his or
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her individual capacity for damages for violating the plaintiff's constitutional rights. See Bivens,
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403 U.S. at 397. To state a claim a plaintiff must allege: (1) that a right secured by the
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Constitution of the United States was violated, and (2) that the alleged violation was committed
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by a federal actor.
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II.
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Plaintiff currently is housed at the United States Penitentiary in Pollock, Louisiana. He
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Plaintiff’s Allegations
was temporarily housed at United States Penitentiary Victorville in Adelanto, California when he
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initiated this action. However, the events alleged in his complaint occurred while Plaintiff was
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housed at FCI Mendota in Mendota, California. Plaintiff names the following defendants in their
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individual and official capacities: (1) J. Castillo, W/R Director; (2) A. Gill, FCI Warden; (3) Mr.
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Fajardo, Assistant Warden; (4) Mr. Gramm, FCI Captain; (5) Ms. Duchand, Unit Manager; (6)
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Mr. Dern, Unit Manager; (7) Lt. Crank, FCI Lieutenant; (8) Lt. Knoll, FCI Lieutenant; (9) Mr.
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LaVore, DHO Chairman; (10) A. Lozano, Correctional Officer; (11) J. Cravy, Correctional
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Officer; (12) Davenport, Correctional Officer; (13) Mr. Pullings, Counselor; (14) Ms. Garcia,
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Unit Secretary; (15) Ms. Longmore, Counselor; and (16) John Doe #1, Correctional Officer.
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Plaintiff alleges as follows: Since 1995, Plaintiff has been serving a life sentence for a
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non-violent crime. On February 1, 2012, he was transferred from FCI Victorville to FCI
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Mendota for having clear conduct and to be near his family in Stockton, California. Soon after
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his arrival at FCI Mendota, staff became aware of a civil action filed by Plaintiff against Bureau
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of Prison staff members and began retaliating against him in different ways.
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In mid-March or early-April 2012, Defendant Fajardo directed the Education Department
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head to preclude Plaintiff from using a typewriter in front of the computers at the inmate law
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library due to a grievance that Plaintiff filed.
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At the end of May or early June 2012, Plaintiff was taken out of his cell at 5:30 a.m. and
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falsely accused of having a cell phone. Plaintiff was strip searched and locked in the showers for
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over an hour. No cell phone was ever found or ever existed. Plaintiff‟s family phone numbers
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were continuously blocked by Defendant Fajardo‟s personal involvement.
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On July 1, 2012, while Plaintiff was visiting with his family, Plaintiff noted that he was
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being observed by John Doe #1, which made his family uncomfortable. The next day, on July 2,
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2012, John Doe #1 asked Plaintiff if he had hidden his drugs in the cell. While Plaintiff was kept
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in the yard for almost 3 hours, John Doe #1 went through Plaintiff‟s 3 boxes of legal materials
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and found approximately 28 books of U.S. postage stamps that Plaintiff had accumulated
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between 2006 and 2008 and had been allowed to retain by R & D officers on his arrival at FCI
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Mendota. Defendant Duchand ordered the stamps returned to Plaintiff, but Defendant Crank
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refused. Defendant Crank convinced Defendant Duchand to write Plaintiff a second incident
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report for filing a grievance over the stamp issue.
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On or about February 13, 2013, Plaintiff wrote a grievance regarding Defendant Lt.
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Knoll‟s failure to act, which resulted in a yard disturbance between a Texas gang and Hispanic
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Mexican Nationals the Bureau of Prisons called “paisas.” An emergency lockdown occurred on
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February 16, 2013, and an investigation was conducted on February 17, 2013. Plaintiff told the
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investigating official, Mr. Trotter, about the grievance against Lt. Knoll. As a result, on
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February 20, 2013, Plaintiff was sent to the Special Housing Unit (SHU) by order of Defendant
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Knoll when he saw Plaintiff at the dining hall as reprisal for Plaintiff‟s grievance. Plaintiff spent
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almost three months in the SHU.
Plaintiff alleges that a conspiracy against him headed by the highest member of his unit,
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Defendant Dern, was noticeable since late August 2012 when Defendant Dern directed
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Defendant Pullings and others to take visitors off of Plaintiff‟s list due to his grievances. On
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numerous grievances, Plaintiff brought the issue of such conspiracy to Defendants J. Castillo and
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Gill, but both turned a blind eye to the problems.
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On October 20, 2013, Plaintiff was summoned to Defendant Gramm‟s office to discuss a
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recent grievance sent by Plaintiff to Warden Gill regarding the wrongful actions of Defendants
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Lozano and Cravy. Plaintiff explained the problem to Defendant Gramm. As a result, on
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October 22, 2013, Plaintiff was falsely accused of interfering with the 4:00 p.m. count by a co-
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conspirator, Defendant Davenport, in conjunction with Defendant Cravy. Plaintiff was sent to
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the SHU for almost 3 months with code 328. Plaintiff contends that no one goes to the SHU for
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code 300 series. Plaintiff alleges that the false accusations were further inflated by Defendant
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Crank, who stated in the detention order form that Plaintiff violated criminal law.
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In the conspirators‟ haste to tarnish Plaintiff‟s institutional record, Defendants Knoll and
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Dern and underlings wrote him three additional incident reports. There were four reports in less
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than three weeks in an attempt to cover-up their wrongful actions and to request that Defendant
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Castillo transfer Plaintiff to punish him.
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Plaintiff contends that the false accusations consist of (1) interfering with count, (2)
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having a torn or damaged mattress, (3) having a torn sheet in SHU and (4) having a letter in his
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door with a postage stamp suspected by Defendant Dern of not having been purchased at the
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prison store. Plaintiff contends that the first incident report was orchestrated by Defendant
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Cravy after Plaintiff wrote a grievance on October 9, 2013. Plaintiff contends that the second
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incident report was written by an officer not mentioned in the complaint, but who was
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encouraged by Defendant Dern when Plaintiff wrote a grievance three weeks earlier. Plaintiff
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contends that the third incident report was written by Defendant Knoll after Plaintiff sent a FOIA
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request regarding Defendant Knoll‟s reasons for sending him to the SHU on February 20, 2013.
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Plaintiff contends that the fourth incident report was written by Defendant Dern one week after
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Plaintiff wrote a grievance against him. Plaintiff asserts that Warden Gill was promptly noticed
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regarding the conspiracy to retaliate against him after every incident report.
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In the first week of November 2013, Plaintiff notified Warden Gill that 10 other inmates
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were allowed to exchange their torn, damaged mattresses one week after Plaintiff‟s October 22,
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2013 incident report and none of the other inmates were punished or given an incident report.
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Defendants Dern and Pullings confirmed that none of the other inmates were punished because
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they did the right thing. Despite Plaintiff‟s insistence to Warden Gill, she did nothing. Plaintiff
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alleges that Defendants Gill and Fajardo were informed of the blatant targeting and
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discrimination, but did nothing to prevent it or stop the punishment.
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On October 25, 2013, Defendant Longmore conducted a Unit Disciplinary Hearing
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during which Plaintiff selected a staff representative to talk to his witnesses. On October 26,
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2013, Plaintiff handed Defendant Longmore a written request to staff member regarding his
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potential witnesses. Defendant Longmore stated that she would deliver the request to Defendant
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Garcia.
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On November 20, 2013, Defendants LaVore and Garcia conducted a disciplinary hearing.
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Defendant Garcia told Defendant LaVore that Plaintiff requested no witnesses despite his staff
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representative stating the contrary. At the hearing, Plaintiff also complained about blatant due
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process violations. He also pointed out to Defendant LaVore that he was being targeted and
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being treated differently than the other 10 inmates with damaged, torn mattresses. Defendant
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LaVore admitted that Plaintiff received the damaged mattress on May 1, 2013, as Defendants
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Dern and Pullings conceded that they had no proof that he received a pristine mattress.
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Defendant LaVore still sanctioned Plaintiff to 30-days solitary, four months loss of phone
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privileges and a $50.00 fine.
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Plaintiff claims that during his four disciplinary proceedings it was never mentioned that
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staff would recommend transferring Plaintiff. All of the paperwork was surreptitiously
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submitted to Defendant Castillo‟s Western Regional Office for approval. On November 17,
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2013, two days prior to the expiration of his 30-day solitary confinement, Plaintiff was told that
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he was not going to general population, but had been recommended for transfer. That same day,
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Plaintiff confronted Defendant Dern, who reportedly stated, “We put you for transfer because
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you file too many grievances, and we don‟t [sic] the inmate in those type of circumstances.”
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Defendant Dern further stated that Plaintiff‟s transfer had been approved by the regional office.
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At 4:00 p.m., Plaintiff‟s personal property was packed out.
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At the end of October or early November 2013, Plaintiff put Defendant J. Castillo on
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notice of Defendants‟ intentions to punish him due to his grievances by separating him from his
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family. Defendant Castillo never responded to the letters.
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On December 18, 2013, Plaintiff was taken out of FCI Mendota and transferred to USP
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Victorville to await transfer. USP Victorville was on lockdown at the time. On January 6, 2014,
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Plaintiff learned that he was designated to go to USP Pollock in Louisiana. Plaintiff believes that
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he and his property were packed quickly to prevent him from seeking help in this Court.
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Plaintiff further reports that he is a U.S. Citizen born in Mexico. The Bureau of Prisons
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has branded him a “paisa” for being a Mexican National. This makes him inapplicable to walk
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in the USP Pollack yard without risking bodily injury by the Texas prison gang that fought in FC
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Mendota on February 16, 2013. Plaintiff alleges that Defendants Castillo and Warden Gill
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deliberately allowed Defendants Dern, Gramm and Knoll to recommend Plaintiff‟s placement at
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USP Pollock, where the Texas gang has been known by Defendants to brutally beat and stab
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Mexican Nationals to death. Plaintiff asserts that he is not a gang member, but his Mexican
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descent has placed his life in jeopardy from the Texas gang. Plaintiff claims that he qualifies for
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at least 6 institutions in California.
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Plaintiff asserts the following causes of action: (1) violation of his First, Fifth and
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Fourteenth Amendment rights by Defendants Castillo and Gill for permitting their underlings to
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retaliate against him for filing grievances, violating his due process rights in the various
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proceedings and discriminating against him by treating him differently than others; (2) violation
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of his Fifth and Fourteenth Amendment rights to due process and equal protection; and (3)
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violation of his First Amendment rights by Defendants Duchand, Dern, Crank, Knoll, Lozano,
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Cravy, Davenport, Pullings and John Doe by retaliating against him for filing grievances.
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Plaintiff requests monetary damages.
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III.
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Plaintiff‟s complaint does not comply with Federal Rules of Civil Procedure 8 and 18.
Deficiencies of Complaint
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Plaintiff will be granted leave to file an amended complaint. To assist Plaintiff, the Court
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provides the pleading and legal standards that appear applicable to his claims. Plaintiff should
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amend only those claims that he believes, in good faith, state a cognizable claim.
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A. Federal Rule of Civil Procedure 8
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Pursuant to Federal Rule of Civil Procedure 8, 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).
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Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause
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of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678
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(citation omitted). Plaintiff must set forth “sufficient factual matter, accepted as true, to „state a
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claim to relief that is plausible on its face.‟” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S.
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at 555). While factual allegations are accepted as true, legal conclusions are not. Id.; see also
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Twombly, 550 U.S. at 556–557; Moss, 572 F.3d at 969.
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Plaintiff‟s complaint does not include a short and plain statement of his claims. Rather,
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Plaintiff‟s complaint is filled with conclusory statements, such as assertions of conspiracy or
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purported knowledge of complaints and grievances, which do not provide specific factual
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information to permit the Court to determine if Plaintiff has stated a plausible claim for relief
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against the individually named defendants. If Plaintiff elects to amend his complaint, he must set
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forth specific factual allegations against each defendant.
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B. Federal Rule of Civil Procedure 18
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Plaintiff is raising numerous claims based on different events. Plaintiff may not bring
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unrelated claims against unrelated parties in a single action. Fed. R. Civ. P. 18(a), 20(a)(2);
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Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 507 F.3d 605, 607 (7th
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Cir. 2007). Plaintiff may bring a claim against multiple defendants so long as (1) the claim
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arises out of the same transaction or occurrence, or series of transactions and occurrences, and
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(2) there are commons questions of law or fact. Fed. R. Civ. P. 20(a)(2); Coughlin v. Rogers,
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130 F.3d 1348, 1351 (9th Cir. 1997); Desert Empire Bank v. Insurance Co. of North America,
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623 F.2d 1371, 1375 (9th Cir. 1980). Only if the defendants are properly joined under Rule
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20(a) will the Court review the other claims to determine if they may be joined under Rule 18(a),
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which permits the joinder of multiple claims against the same party.
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Plaintiff may not assert a due process claim related to disciplinary proceedings in 2013,
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while simultaneously asserting a First Amendment retaliation claim involving events in 2012.
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Plaintiff may not attempt to circumvent this deficiency merely by stating that defendants at the
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same institution are part of an overriding conspiracy. An actionable Bivens conspiracy claim
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requires (1) the existence of an express or implied agreement among the defendants to deprive
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the plaintiff of his constitutional rights, and (2) an actual deprivation of those rights resulting
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from that agreement. Ting v. United States, 927 F.2d 1504, 1512 (9th Cir. 1991). Plaintiff has
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not set forth sufficient factual allegations to establish the existence of an express or implied
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agreement among the defendants.
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In his amended complaint, Plaintiff shall choose which claims he wishes to pursue in this
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action. If Plaintiff does not do so and his amended complaint sets forth unrelated claims which
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violate joinder rules, the Court will dismiss the claims it finds to be improperly joined.
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C. Bureau of Prisons and Official Capacity Defendants
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Plaintiff pleads claims against defendants in their official capacities for damages.
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However, a Bivens claim for damages does not extend to federal agencies or to officers named in
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an official capacity. See Minneci v. Pollard, --- U.S. ---, 132 S.Ct. 617, 623-24, 181 L.Ed.2d 606
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(2012); see also Ibrahim v. Department of Homeland Sec., 538 F.3d 1250, 1257 (9th Cir. 2008)
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(“no Bivens-like cause of action is available against federal agencies or federal agents sued in
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their official capacities”). Accordingly, Plaintiff‟s complaint fails to state a Bivens claim against
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the Bureau of Prisons or a defendant in his or her official capacity.
D. Count One – Violation of the First, Fifth and Fourteenth Amendments by
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Defendants Castillo and Gill
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Plaintiff asserts that Defendants Castillo and Gill violated his First, Fifth and Fourteenth
Amendment rights by permitting their underlings to retaliate against him for filing grievances,
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violating his due process rights in the various proceedings and discriminating against him by
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treating him differently than others. Plaintiff claims against Defendants Castillo and Gill are
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based on their supervisory capacities.
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Plaintiff may not bring a claim against Defendants Castillo and Gill based on a theory of
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supervisory liability. Iqbal, 556 U.S. at 677 (“In a § 1983 suit or a Bivens action . . . the term
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“supervisory liability” is a misnomer.”) A government official is only liable for his or her own
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misconduct. Id. Plaintiff has not alleged that Defendants Castillo and Gill caused or contributed
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to any of the claimed constitutional violations.
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E. Count Two – Violation of Fifth and Fourteenth Amendment
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In Count Two, Plaintiff alleges that Defendants Gill, Fajardo, Gramm, LaVore,
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Longmore, Garcia and Dern violated his due process and equal protection rights by delaying his
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proceedings, denying his witnesses at the disciplinary hearing and discriminating against him by
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treating him differently than other similarly situated inmates with torn mattresses. (ECF No. 1,
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p. 13.)
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As a preliminary matter, Plaintiff has failed to sufficiently link each defendant with an
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alleged constitutional violation. Plaintiff merely names multiple defendants in Count Two
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without connecting them to the asserted violation.
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1. Fourteenth Amendment
As a federal prisoner, Plaintiff‟s purported due process and equal protection claims are
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secured by the Fifth Amendment, not the Fourteenth Amendment. Lopez-Galvan v. Rubio, 2013
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WL 6230265, *3 (E.D. Cal. Dec. 2, 2013) (finding federal prisoner‟s due process and equal
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protection rights guaranteed by Fifth Amendment); Castillo v. McFadden, 399 F.3d 993, 1002 n.
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5 (9th Cir. 2005) (“The Fifth Amendment prohibits the federal government from depriving
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persons of due process, while the Fourteenth Amendment explicitly prohibits deprivations
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without due process by the several States.”); Consejo de Desarollo Economico de Mexicali, A.C.
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v. United States, 482 F.3d 1157, 1170 n. 4 (9th Cir. 2007) (Fifth Amendment‟s Due Process
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Clause subjects the federal government to constitutional limitations that are equivalent of those
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imposed on the states by the Equal Protection Clause of the Fourteenth Amendment) (citations
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and quotations omitted). Plaintiff cannot state a cognizable Fourteenth Amendment claim.
2. Fifth Amendment – Due Process
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Plaintiff appears to be alleging violations of his right to due process during disciplinary
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hearings in violation of the Fifth Amendment. Before a prisoner is placed in disciplinary
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segregation, as alleged here, due process requires that a prisoner is entitled to: (1) a written
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statement at least 24 hours before the disciplinary hearing that includes the charges, a description
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of the evidence against the prisoner, and an explanation for the disciplinary action taken; (2) an
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opportunity to present documentary evidence and call witnesses, unless calling witnesses would
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interfere with institutional security; and (3) legal assistance where the charges are complex or the
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inmate is illiterate. Wolff v. McDonnell, 418 U.S. 539, 563-570, 94 S.Ct. 2963, 2978-2982
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(1974).
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Plaintiff has alleged that he was denied the opportunity to present inmate witnesses.
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However, there are two primary deficiencies in Plaintiff‟s allegations: First, Plaintiff does not
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indicate whether these witnesses were willing to testify on his behalf or whether their presence
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would interfere with institutional security. Second, Plaintiff‟s allegations appear to be limited to
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Defendants LaVore, Garcia, and Longmore, not the other defendants identified in Count Two. In
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other words, Plaintiff has failed to link Defendants Gill, Fajardo, Gramm, and Dern to his due
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process allegations. Further, Plaintiff‟s allegations of delay are unclear and do not appear to
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raise a due process violation.
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3. Fifth Amendment – Equal Protection
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Plaintiff appears to allege that he was treated differently from other inmates with torn
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mattresses in violation of his equal protection rights. “[T]he Due Process Clause of the Fifth
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Amendment subjects the federal government to constitutional limitations that are the equivalent
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of those imposed on the states by the Equal Protection Clause of the Fourteenth Amendment.”
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Consejo, 482 F.3d at 1170 n.4. The Equal Protection Clause requires that persons who are
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similarly situated be treated alike. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S.
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432, 439, 105 S.Ct. 3249 (1985); Hartmann v. California Dep‟t of Corr. & Rehab., 707 F.3d
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1114, 1123 (9th Cir. 2013); Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013); Shakur v.
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Schriro, 514 F.3d 878, 891 (9th Cir. 2008). An equal protection claim may be established by
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showing that Defendants intentionally discriminated against Plaintiff based on his membership in
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a protected class, Hartmann, 707 F.3d at 1123; Furnace, 705 F.3d at 1030; Comm. Concerning
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Cmty. Improvement v. City of Modesto, 583 F.3d 690, 702-03 (9th Cir. 2009); Serrano v.
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Francis, 345 F.3d 1071, 1082 (9th Cir. 2003); Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th
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Cir. 2001), or that similarly situated individuals were intentionally treated differently without a
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rational relationship to a legitimate state purpose, Engquist v. Oregon Department of Agriculture,
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553 U.S. 591, 601-02, 128 S.Ct. 2146 (2008); Village of Willowbrook v. Olech, 528 U.S. 562,
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564, 120 S.Ct. 1073 (2000); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008);
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North Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008).
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Here, Plaintiff has not alleged that he was intentionally discriminated against based on his
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membership in a protected class. Rather, Plaintiff appears to allege that other inmates with torn
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mattresses were intentionally treated differently. Plaintiff‟s allegations are not sufficient to state
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an equal protection claim as he has not provided sufficient facts demonstrating that he was
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similarly situated to other inmates with torn mattresses. In his complaint, Plaintiff asserts that
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according to Defendant Dern none of the other inmates were punished because they did the right
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thing. (ECF No. 1, pp. 7-8.) Plaintiff has not established that he undertook the same actions as
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the other inmates when faced with a torn mattress.
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F. Count 3 - First Amendment - Retaliation
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Plaintiff alleges that Defendants Duchand, Dern, Crank, Knoll, Lozano, Cravy,
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Davenport, Pullings and John Doe retaliated against him for filing grievances. Allegations of
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retaliation against a prisoner‟s First Amendment rights to speech and to petition the government
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may support a civil rights claim. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir.1985); see also
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Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir.1995). “Within the prison context, a viable claim of
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First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took
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some adverse action against an inmate (2) because of (3) that prisoner‟s protected conduct, and
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that such action (4) chilled the inmate‟s exercise of his First Amendment rights, and (5) the
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action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d
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559, 567–68 (9th Cir.2005); accord Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir.2012);
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Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir.2009).
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In order to state a claim, a plaintiff must allege specific facts demonstrating that a
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defendant took an adverse act because of plaintiff's First Amendment activity. The plaintiff's
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protected conduct must have been “the „substantial‟ or „motivating‟ factor behind the defendant's
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conduct.” Brodheim, 584 F.3d at 1271, quoting Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310,
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1314 (9th Cir.1989). The adverse action must not have reasonably advanced a legitimate
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correctional goal.
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Defendants Duchand, Crank, Knoll and Dern
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Plaintiff‟s complaint states cognizable retaliation claims against Defendants Duchand,
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Crank, Knoll and Dern. However, Plaintiff‟s allegations against these defendants are not
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appropriate in a single action and violate the joinder rules discussed in previous sections. If
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Plaintiff elects to amend his complaint, he must decide which incidents and which defendants he
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seeks to pursue in this action. Plaintiff is not precluded from filing separate actions against
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unrelated defendants involving different incidents.
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Defendant John Doe
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Plaintiff has failed to state a cognizable retaliation claim against Defendant John Doe. At
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best, Plaintiff alleges that Defendant John Doe conducted a search of Plaintiff‟s cell after
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suspecting Plaintiff of having hidden drugs and confiscated 28 books of postage stamps during
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the search. Plaintiff‟s complaint lacks factual allegations establishing that Defendant John Doe
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conducted the search in retaliation for any protected conduct.
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Defendants Lozano, Cravy, Davenport and Pullings
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Plaintiff has failed to state a cognizable retaliation claim against Defendants Lozano,
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Cravy, Davenport and Pullings. Plaintiff has not included sufficient factual allegations to
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establish that these defendants took an adverse action against him because of his protected
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conduct or that their actions did not serve to advance a legitimate correctional goal. In particular,
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Plaintiff has not included any factual allegations detailing any actions taken by Defendant
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Lozano. Plaintiff has asserted only conclusory allegations against Defendants Cravy, Davenport
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and Pullings.
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IV.
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Plaintiff‟s complaint fails to comply with Federal Rules of Civil Procedure 8 and 18.
Conclusion and Order
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However, the Court will provide Plaintiff with the opportunity to file a first amended complaint.
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Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). Plaintiff may not change the nature of this
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suit by adding new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605,
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607 (7th Cir. 2007) (no “buckshot” complaints).
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Plaintiff‟s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what
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the named defendant did that led to the deprivation of Plaintiff‟s constitutional rights, Iqbal, 556
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U.S. at 678-79, 129 S.Ct. at 1948-49. Although accepted as true, the “[f]actual allegations must
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be [sufficient] to raise a right to relief above the speculative level. . . .” Twombly, 550 U.S. at
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555 (citations omitted).
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Finally, Plaintiff is advised that an amended complaint supersedes the original complaint.
Lacey v. Maricopa Cnty., 693 F.3d 896, 927 (9th Cir. 2012) (en banc). Therefore, Plaintiff‟s
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first amended complaint must be “complete in itself without reference to the prior or superseded
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pleading.” Local Rule 220.
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Based on the foregoing, it is HEREBY ORDERED that:
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1. The Clerk‟s Office shall send Plaintiff a complaint form;
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2. Plaintiff‟s complaint is dismissed for failure to comply with Federal Rules of Civil
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Procedure 8, 18 and 20.
3. Within thirty (30) days from the date of service of this order, Plaintiff shall file a
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first amended complaint; and
4. If Plaintiff fails to file a first amended complaint in compliance with this order, this
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action will be dismissed with prejudice for failure to state a claim.
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IT IS SO ORDERED.
Dated:
/s/ Barbara
April 15, 2014
A. McAuliffe
_
UNITED STATES MAGISTRATE JUDGE
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