Treglia v. Kerman et al

Filing 74

ORDER DENYING MOTIONS TO DISMISS; FURTHER BREIFING by Judge Lucy H. Koh denying 16 Motion to Dismiss; denying 31 Motion to Dismiss (Attachments: # 1 Certificate/Proof of Service) (mpb, COURT STAFF) (Filed on 8/15/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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DANIEL TREGLIA,

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Plaintiff,
v.

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SCOTT KERNAN, et al.,
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Defendants.
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No. C 12-2522 LHK (PR)
ORDER DENYING MOTIONS TO
DISMISS; FURTHER BRIEFING

(Docket Nos. 16, 31)

Plaintiff, a state prisoner proceeding pro se, filed an amended civil rights complaint

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pursuant to 42 U.S.C. § 1983 challenging the conditions of his confinement at Pelican Bay State

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Prison (“PBSP”). The court screened plaintiff’s amended complaint and found that plaintiff

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stated cognizable claims of: (1) retaliation against defendant Warden Greg Lewis (“Warden

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Lewis”) and defendant Undersecretary Scott Kernan (“Undersecretary Kernan”); (2) retaliation

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and due process against defendants Bumby, James, and Anderson; and (3) deliberate indifference

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against defendant Nurse Smith.

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Warden Lewis has filed a motion to dismiss for failure to state a claim against him, for

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failure to exhaust, and based on qualified immunity. Plaintiff has filed an opposition, and

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Warden Lewis has filed a reply. Undersecretary Kernan has also filed a motion to dismiss for

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failure to state a claim against him, and based on qualified immunity. Plaintiff has filed an

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opposition. Although directed to do so, Undersecretary Kernan has not filed a reply. For the
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reasons stated below, defendants’ motions to dismiss are DENIED.

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BACKGROUND

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In the amended complaint, plaintiff stated that on July 1, 2011, several inmates at PBSP

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began staging a hunger strike to protest the conditions of PBSP’s Secured Housing Unit

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(“SHU”), where plaintiff was being held. The following day, a memorandum was distributed to

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the inmates, describing the effects that starvation has on a person, and stating that refusing food

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was an inmate’s right and choice. On September 26, 2011, plaintiff decided to exercise his right

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to free speech by joining the hunger strike in an effort to peacefully protest his dissatisfaction

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with the conditions at PBSP, and the policy of housing inmates long-term in isolation. The

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following day, Warden Lewis ordered his officers to distribute a memorandum, authored by

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Undersecretary Kernan, that stated that the California Department of Corrections and

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Rehabilitation would not tolerate organized inmate disturbances such as hunger strikes or work

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stoppages, and that inmates who participated in such activities would receive disciplinary action.

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Plaintiff alleged that defendants’ threat of disciplinary action was an adverse action taken

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because of his right to free speech.

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I.

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Motion to Dismiss for Failure to State a Claim
Defendants move to dismiss the amended complaint for failure to state a claim against

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them. Specifically, Warden Lewis argues that plaintiff failed to allege a causal connection

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between Warden Lewis and any alleged violation. Undersecretary Kernan argues that the

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distributed memorandum was not a “retaliatory action,” and thus, plaintiff has failed to state a

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claim.

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Title 28 U.S.C. § 1915(e)(2) requires a court to dismiss any case in which a litigant seeks

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leave to proceed in forma pauperis if the court determines that the action is (1) frivolous or

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malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief

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

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determination of whether the litigant has stated a claim is decided under the same standard used

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in Rule 12(b)(6) motions to dismiss. Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012).

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As an initial matter, defendants’ motion seeks to have the court revisit a decision already
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made, as the court had decided that the amended complaint did state a claim upon which relief

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may be granted. On November 8, 2012, the court performed an initial screening of the amended

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complaint, which required the court to dismiss, among other things, any claims that failed to

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state a claim upon which relief may be granted. The court determined that, liberally construed,

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the allegations of the amended complaint adequately pleaded a cognizable First Amendment

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claim against these defendants.

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To seek reconsideration of an interlocutory order, such as the previous order’s

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determination that the amended complaint stated a claim upon which relief may be granted,

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defendants had to comply with Local Rule 7-9(a). They did not. They did not obtain leave of

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court to file a motion for reconsideration, and made no argument in their briefs that would

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suggest that they could pass the test for such permission. See N.D. Cal. Civil L.R. 7-9(b). Even

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without the special requirements for motions to reconsider, a pleading challenge following a

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Section 1915A screening of a prisoner complaint rarely will be successful, especially in light of

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the requirement that pro se complaints be liberally construed. See Hebbe v. Pliler, 627 F.3d 338,

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342 (9th Cir. 2010) (even after Supreme Court cases heightened the standards for pleading, the

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court’s obligation “remains, ‘where the petitioner is pro se, particularly in civil rights cases, to

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construe the pleadings liberally and to afford the petitioner the benefit of any doubt.’”).

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Accordingly, the motion is DENIED.

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Alternatively, the court finds the arguments defendants proffer in their motions are not

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persuasive. A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal

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sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In considering

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whether the complaint is sufficient to state a claim, the court must accept as true all of the factual

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allegations contained in the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). However,

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the court need not accept as true “allegations that contradict matters properly subject to judicial

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notice or by exhibit” or “allegations that are merely conclusory, unwarranted deductions of fact,

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or unreasonable inferences.” St. Clare v. Gilead Scis., Inc. (In re Gilead Scis. Sec. Litig.), 536

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F.3d 1049, 1055 (9th Cir. 2008). While “a complaint need not contain detailed factual

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allegations . . . it must plead ‘enough facts to state a claim to relief that is plausible on its face.’”
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Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). “A claim has facial plausibility when

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the plaintiff pleads factual content that allows the court to draw the reasonable inference that the

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defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility

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standard is not akin to a ‘probability requirement,’ but it asks for more than sheer possibility that

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a defendant acted unlawfully.” Id. Plaintiff has satisfied this requirement.

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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 inmate (2)

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

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exercise of his First Amendment rights, and (5) the action did not reasonably advance a

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legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005)

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(footnote omitted).

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Taking plaintiff’s allegations as true and liberally construing plaintiff’s amended

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complaint, an inference can be made that Warden Lewis ordered prison officials to distribute a

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memorandum, written by Undersecretary Kernan, that was intended to prevent the SHU inmates

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from exercising their right to free speech by participating in a hunger strike. The memorandum

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threatened disciplinary action if the inmates refused to cease their protest. Liberally construed,

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plaintiff’s allegation proffers enough facts to make his claim plausible. Bell Atlantic Corp. v.

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Twombly, 550 U.S. 544, 570 (2007). “The issue is not whether plaintiff will ultimately prevail,

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but whether he is entitled to offer evidence to support his claim.” Usher v. City of Los Angeles,

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828 F.2d 556, 561 (9th Cir. 1987). Defendants’ motions to dismiss for failure to state a claim are

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DENIED.

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II.

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Qualified immunity
The court also rejects defendants’ argument that they are entitled to qualified immunity.

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The defense of qualified immunity protects “government officials . . . from liability for civil

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damages insofar as their conduct does not violate clearly established statutory or constitutional

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rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,

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818 (1982). The rule of qualified immunity protects “‘all but the plainly incompetent or those

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who knowingly violate the law;’” defendants can have a reasonable, but mistaken, belief about
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the facts or about what the law requires in any given situation. Saucier v. Katz, 533 U.S. 194,

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202 (2001) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). “Therefore, regardless of

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whether the constitutional violation occurred, the [official] should prevail if the right asserted by

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the plaintiff was not ‘clearly established’ or the [official] could have reasonably believed that his

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particular conduct was lawful.” Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991).

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In considering whether a defendant is entitled to qualified immunity, the inquiry must

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focus on the time of the conduct – i.e., whether the officer’s acts were reasonable in light of the

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information he possessed at the time he acted – rather than its aftermath and effect because no

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officer can observe whether his retaliation has successfully chilled a prisoner’s rights until long

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after deciding to act. Rhodes v. Robinson, 408 F.3d 559, 570 (9th Cir. 2005).

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Taking plaintiff’s facts as true, Warden Lewis gave the instruction to distribute the

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memorandum written by Undersecretary Kernan in response to the inmates’ hunger strike in

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order to prohibit the inmates from exercising their right to express themselves through peaceful

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protests. The court concludes that a reasonable officer in defendants’ positions could not have

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believed that his actions were lawful. At this time, defendants’ motions to dismiss based on

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qualified immunity are DENIED without prejudice.

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III.

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Motion to Dismiss for Failure to Exhaust
Warden Lewis moves to dismiss plaintiff’s claim against him for failure to exhaust.

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Plaintiff responds that he raised his retaliation claim in appeal number PBSP 11-02606, which

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was cancelled on January 3, 2012 at the Director’s level of review before plaintiff’s filing of this

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federal action. Warden Lewis replies that because plaintiff failed to name him in the grievance,

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much less claim that Warden Lewis retaliated against plaintiff, plaintiff’s claim against him

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should be dismissed for failure to exhaust.

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The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought

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with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a

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prisoner confined in any jail, prison, or other correctional facility until such administrative

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remedies as are available are exhausted.” 28 U.S.C. § 1997e(a). Failure to exhaust is an

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affirmative defense under the PLRA. Jones v. Bock, 549 U.S. 199, 211 (2007). Defendants have
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the burden of raising and proving the absence of exhaustion, and inmates are not required to

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specifically plead or demonstrate exhaustion in their complaints. Id. at 215-17. As there can be

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no absence of exhaustion unless some relief remains available, a movant claiming lack of

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exhaustion must demonstrate that pertinent relief remained available, whether at unexhausted

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levels or through awaiting the results of the relief already granted as a result of that process.

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Brown v. Valoff, 422 F.3d 926, 936-37 (9th Cir. 2005).

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The California Department of Corrections and Rehabilitation (“CDCR”) provides its

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inmates and parolees the right to appeal administratively “any departmental decision, action,

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condition, or policy which they can demonstrate as having an adverse effect upon their welfare.”

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Cal. Code Regs. tit. 15, § 3084.1(a). It also provides its inmates the right to file administrative

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appeals alleging misconduct by correctional officers. Cal. Code Regs. tit. 15, § 3084.1(e). In

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order to exhaust available administrative remedies within this system, a prisoner must submit his

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complaint on CDCR Form 602 (“602”) and proceed through several levels of appeal:

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(1) informal level grievance filed directly with any correctional staff member, (2) first formal

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level appeal filed with one of the institution's appeal coordinators, (3) second formal level appeal

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filed with the institution head or designee, and (4) third formal level appeal filed with the CDCR

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director or designee (“Director’s level”). Cal. Code Regs. tit. 15, § 3084.5; Brodheim v. Cry,

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584 F.3d 1262, 1264-65 (9th Cir. 2009). This satisfies the administrative remedies exhaustion

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requirement under Section 1997e(a).

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Compliance with prison grievance procedures is all that is required by the PLRA to

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“properly exhaust.” Jones, 549 U.S. 199 at 217-18. The level of detail necessary in a grievance

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to comply with the grievance procedures will vary from system to system and claim to claim, but

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it is the prison’s requirements, and not the PLRA, that define the boundaries of proper

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exhaustion. Id. at 218. In California, the regulation requires the prisoner “to lodge his

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administrative complaint on CDC form 602 and ‘to describe the problem and action requested.’”

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Morton v. Hall, 599 F.3d 942, 946 (9th Cir. 2010) (quoting Cal. Code Regs. tit. 15 § 3084.2(a)).

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In Jones, the Supreme Court stated that the “name all defendants” requirement under the Sixth

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Circuit rule may promote early notice to those who might later be sued, but that has not been
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thought to be one of the leading purposes of the exhaustion requirement. Jones, 549 U.S. at 219

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(citing Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir. 2004) (“We are mindful that the primary

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purpose of a grievance is to alert prison officials to a problem, not to provide personal notice to a

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particular official that he may be sued; the grievance is not a summons and complaint that

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initiates adversarial litigation.”)). The Supreme Court did not determine whether the grievances

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filed by petitioners satisfied the requirement of “proper exhaustion,” but concluded that

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exhaustion is not per se inadequate simply because an individual later sued was not named in the

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grievances. Jones, 549 U.S. at 219 (citation omitted).

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Here, in PBSP 11-02606, plaintiff stated that the subject of his appeal was “retaliation

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through disciplinary action.” (Pl. Decl., Ex. 3.) Plaintiff described that he was exercising his

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right to free speech by refusing his food, and Undersecretary Kernan authored a memo that

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threatened disciplinary action if plaintiff continued to do so. (Id.) Plaintiff raised due process

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issues as well. Plaintiff’s appeal was granted with respect to the due process claims at the

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second level of review, but plaintiff's appeal of his retaliation claim was denied as “beyond the

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scope of this review.” (Id.) Plaintiff appealed the denial of his retaliation claim to the Director’s

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level of review, and the appeal was cancelled on January 15, 2012 (id.), because the “issue under

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appeal [had] been resolved” (Lozano Decl., Ex. A.).

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That plaintiff failed to name Warden Lewis in his grievance does not equate to a failure

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to properly exhaust. Plaintiff’s grievance sufficiently “alert[ed] the prison to the nature of the

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wrong for which redress [was] sought.’” Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009)

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(quoting Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002)). Plaintiff properly complied with

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the prison grievance procedure, and PBSP 11-02606, liberally construed, had the same subject

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and same request for relief as that alleged in plaintiff’s amended complaint. Once the response

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at the Director’s level of review concluded that the issue had been resolved, the implication was

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that plaintiff had received all the relief he could obtain from the administrative appeal procedure.

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Warden Lewis has not satisfied his burden of proving the absence of exhaustion. Jones,

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549 U.S. at 215-17. Specifically, Warden Lewis has not demonstrated that pertinent relief

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remained available, whether at unexhausted levels or through awaiting the results of the relief
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already granted as a result of that process. See Brown, 422 F.3d at 936-37.

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Accordingly, Warden Lewis’ motion to dismiss for failure to exhaust is DENIED.

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CONCLUSION

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For the foregoing reasons, the court hereby orders as follows:

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1.

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Undersecretary Kernan’s motion to dismiss is DENIED.

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Defendant Warden Lewis’ motion to dismiss is DENIED. Defendant

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No later than ninety (90) days from the date of this order, defendants shall file a

motion for summary judgment with respect to the cognizable claims in the amended complaint.

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Any motion for summary judgment shall be supported by adequate factual

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documentation and shall conform in all respects to Rule 56 of the Federal Rules of Civil

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Procedure. Defendants are advised that summary judgment cannot be granted, nor

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qualified immunity found, if material facts are in dispute. If defendants are of the opinion

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that this case cannot be resolved by summary judgment, they shall so inform the court

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prior to the date the summary judgment motion is due.

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Plaintiff’s opposition to the dispositive motion shall be filed with the court and

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served on defendants no later than twenty-eight (28) days from the date defendants’ motion is

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filed.

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Plaintiff is advised to read Rule 56 of the Federal Rules of Civil Procedure and Celotex

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Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment must come

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forward with evidence showing triable issues of material fact on every essential element of his

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claim). Plaintiff is cautioned that failure to file an opposition to defendants’ motion for summary

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judgment may be deemed to be a consent by plaintiff to the granting of the motion, and granting

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of judgment against plaintiff without a trial. See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir.

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1995) (per curiam); Brydges v. Lewis, 18 F.3d 651, 653 (9th Cir. 1994).

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Defendants shall file a reply brief no later than fourteen (14) days after plaintiff’s

opposition is filed.
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The motion shall be deemed submitted as of the date the reply brief is due. No

hearing will be held on the motion unless the court so orders at a later date.
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All communications by the plaintiff with the court must be served on defendants’

counsel, by mailing a true copy of the document to defendants’ counsel.
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Discovery may be taken in accordance with the Federal Rules of Civil Procedure.

No further court order is required before the parties may conduct discovery.
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It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the court

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and all parties informed of any change of address and must comply with the court’s orders in a

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timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute

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pursuant to Federal Rule of Civil Procedure 41(b).

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This order terminates docket numbers 16 and 31.
IT IS SO ORDERED.

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DATED:

8/15/13

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LUCY H. KOH
United States District Judge

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