Miller v. McEwen et al

Filing 52

ORDER (1) Adopting in Part 45 Report and Recommendation; (2) Granting in Part and Denying in Part 40 Motion to Dismiss. The Court adopts in part the R&R, grants in part Defendants' motion to dismiss, and dismisses with prejudice: (1) Pla intiff's substantive due process claims against Paramo, Castro, Lizzarraga, Kornbluth, and Zamora; and, (2) Plaintiff's procedural due process claims against McEwen and Janda for denial and failure to hear his appeals. The Court also dismi sses without prejudice: (1) Plaintiff's First Amendment retaliation claims against Amezcua, Castro, Dominguez, Villalobos, Zamora, Hardman, Flores, Vitella, Alvarez, McEwen, and Janda;(2) Plaintiff's access to the courts claim against T. Alvarez and Villalobos; (3) Plaintiff's procedural due process claims against Alvarez, Amezcua, and Dominguez arising from deprivation of Plaintiff's property; (4) Plaintiff's due process claim against Hardman; (5) Plaintiff's Eighth Amendment failure to supervise claims against McEwen and Janda; and, (6) Plaintiff's Eighth and Fourteenth Amendment claims against McEwen and Janda arising from their work on the classification committee. Finally, the Court denies in part Defendants' motion to dismiss and declines to dismiss Plaintiff's Eighth Amendment failure to intervene claims against McEwen and Janda. If he wishes, Plaintiff shall file a third amended complaint addressing the deficiencies note d by the Court within 45 days of the date that this Order is electronically docketed. The Court cautions Plaintiff that failure to cure the deficiencies identified may result in dismissal with prejudice. Signed by Judge Janis L. Sammartino on 8/26/2013. (All non-registered users served via U.S. Mail Service)(jao)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

GERALD LEE MILLER JR.,

11
12

CASE NO. 11-CV-2333 JLS WVG
Plaintiff,

vs.

13
14
15
16
17
18
19

L.S. MCEWEN, G.J. JANDA, DR.
RICHARD KORNBLUTH,
PARAMO, H. AMEZCUA, S.
HARDMAN, M. ALVAREZ, T.
ALVAREZ, M.S. DOMINGUEZ, C.
VILLALOBOS, J. FLORES, R.
LIZARRAGA, B. DOMINGUES, A.
COSTRA, M. VITELA, RN
ZAMORA, M. CASTRO,

ORDER (1) ADOPTING IN PART
REPORT AND
RECOMMENDATION; AND, (2)
GRANTING IN PART AND
DENYING IN PART MOTION TO
DISMISS
(ECF Nos. 40, 45)

Defendants.

20
21
22
23
24
25
26
27
28

Presently before the Court is Defendants L.S McEwen, G.J. Janda, Dr. Richard
Kornbluth, Paramo, H. Amezcua, S. Hardman, T. Alvarez, C. Villalobos, J. Flores, R.
Lizarraga, B. Dominguez, M. Vitela, RN Zamora, and M. Castro’s (“Defendants”)
motion to dismiss Plaintiff Gerald Lee Miller Jr.’s (“Plaintiff”) second amended
complaint (“SAC”). (Mot. to Dismiss, ECF No. 40). Also before the Court are
Magistrate Judge William V. Gallo’s Report and Recommendation (“R&R”),
recommending that the Court grant in part and deny in part Defendants’ motion to
dismiss, (R&R, ECF No. 45), and Petitioner’s objections to the R&R, (Obj., ECF Nos.
-1-

11cv2333

1 47 & 48). For the reasons stated below, the Court ADOPTS IN PART the R&R and
2 GRANTS IN PART AND DENIES IN PART Defendants’ motion to dismiss.
3
4

BACKGROUND
Magistrate Judge Gallo’s R&R contains a thorough and accurate recitation of

5 the procedural history and facts underlying Plaintiff’s complaint.1 (R&R 2-20, ECF
6 No. 45). This Order incorporates by reference the facts as set forth in the R&R, and
7 briefly summarizes only the most relevant facts here.
8

Plaintiff, a prisoner proceeding pro se, initiated the instant action on October

9 7, 2011. (Compl., ECF No. 1). Plaintiff’s operative SAC names fourteen
10 defendants,2 and claims assorted violations of his First, Eighth, and Fourteenth
11 Amendment rights pursuant to 42 U.S.C. § 1983. (SAC, ECF No. 37). Defendants
12 moved to dismiss Plaintiff’s SAC on February 21, 2013. (MTD, ECF No. 40). On
13 April 19, 2013, Magistrate Judge Gallo issued an R&R recommending that the Court
14 grant in part and deny in part Defendants’ motion. (R&R, ECF No. 45). Plaintiff
15 filed timely objections to the R&R on May 16, 2013 and May 24, 2013. (Obj., ECF
16 Nos. 47 & 48).
17

LEGAL STANDARD

18 1. Review of the Report and Recommendation
19

Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1)

20 set forth a district court’s duties regarding a magistrate judge’s R&R. The district
21 court “shall make a de novo determination of those portions of the report . . . to
22
1

Plaintiff objects to the R&R’s statement of facts. (Obj. 1, ECF No. 47).
Plaintiff does not specify the facts in the R&R to which he objects, however. After
24 comparing the Plaintiff’s complaint with the R&R’s statement of facts, the Court finds
that Plaintiff’s objection is baseless.
25
2
Plaintiff names a Defendant Alvarez in his SAC. (SAC, ECF No. 37). The
26 Court terminated this Defendant from the docket in a prior Order and the Magistrate
Judge refused to consider claims against said Defendant in the R&R. Accordingly,
27 claims against this Defendant are not discussed in this Order. As in the Magistrate
Judge’s R&R, when the Court refers to Defendant Alvarez, it is referring exclusively
28 to Defendant T. Alvarez.
23

-2-

11cv2333

1 which objection is made,” and “may accept, reject, or modify, in whole or in part,
2 the findings or recommendations made by the magistrate judge.” 28 U.S.C. §
3 636(b)(1)(c); see also United States v. Raddatz, 447 U.S. 667, 673-76 (1980). In the
4 absence of a timely objection, however, “the Court need only satisfy itself that there
5 is no clear error on the face of the record in order to accept the recommendation.”
6 Fed. R. Civ. P. 72 advisory committee’s note (citing Campbell v. U.S. Dist. Ct., 501
7 F.2d 196, 206 (9th Cir. 1974)).
8 2. Motion to Dismiss
9

Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion

10 the defense that the complaint “fail[s] to state a claim upon which relief can be
11 granted,” generally referred to as a motion to dismiss. The Court evaluates whether
12 a complaint states a cognizable legal theory and sufficient facts in light of Federal
13 Rule of Civil Procedure 8(a), which requires a “short and plain statement of the
14 claim showing that the pleader is entitled to relief.” Although Rule 8 “does not
15 require ‘detailed factual allegations,’ . . . it [does] demand[] more than an unadorned,
16 the-defendant-unlawfully-harmed-me-accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
17 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other
18 words, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to
19 relief’ requires more than labels and conclusions, and a formulaic recitation of the
20 elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citing
21 Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Nor does a complaint suffice if it
22 tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556
23 U.S. at 678 (citing Twombly, 550 U.S. at 557).
24

“To survive a motion to dismiss, a complaint must contain sufficient factual

25 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.” Id.
26 (quoting Twombly, 550 U.S. at 570); see also Fed R. Civ. P. 12(b)(6). A claim is
27 facially plausible when the facts plead “allow[] the court to draw the reasonable
28 inference that the defendant is liable for the misconduct alleged.” Id. (citing
-3-

11cv2333

1 Twombly, 550 U.S. at 556). That is not to say that the claim must be probable, but
2 there must be “more than a sheer possibility that a defendant has acted unlawfully.”
3 Id. Facts “merely consistent with’ a defendant’s liability” fall short of a plausible
4 entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). Further, the Court
5 need not accept as true “legal conclusions” contained in the complaint. Id. This
6 review requires context-specific analysis involving the Court’s “judicial experience
7 and common sense.” Id. at 1950 (citation omitted). “[W]here the well-pleaded facts
8 do not permit the court to infer more than the mere possibility of misconduct, the
9 complaint has alleged–but it has not ‘shown[n]’–‘that the pleader is entitled to
10 relief.” Id. Moreover, “for a complaint to be dismissed because the allegations give
11 rise to an affirmative defense[,] the defense clearly must appear on the face of the
12 pleading.” McCalden v. Cal. Library Ass’n, 955 F.2d 1214, 1219 (9th Cir. 1990).
13

Relevant here, the Court has a duty to liberally construe a pro se’s pleadings.

14 See Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). “Pro se
15 complaints are to be construed liberally and may be dismissed for failure to state a
16 claim only where it appears beyond doubt that the plaintiff can prove no set of facts
17 in support of his claim that would entitle him to relief.” Barret v. Belleque, 544 F.3d
18 1060, 1061-62 (9th Cir. 2008) (internal quotation marks and citation omitted). The
19 court’s liberal interpretation of a pro se complaint may not, however, supply
20 essential elements of the claim that were not pled. Ivey v. Bd. of Regents of Univ.
21 Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
22

Where a motion to dismiss granted, “leave to amend should be granted ‘unless

23 the court determines that the allegation of other facts consistent with the challenged
24 pleading could not possibly cure the deficiency.’” DeSoto v. Yellow Freight Sys.,
25 Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib Co. v. Serv-Well
26 Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). In other words, where leave to
27 amend would be futile, the Court may deny leave to amend. See DeSoto, 957 F.2d at
28 658; Schreiber, 806 F.2d at 1401.
-4-

11cv2333

1 3. Cognizable Claim for Federal Relief
2

To state a claim under 42 U.S.C. § 1983, Plaintiff must allege that: (1) the

3 conduct he complains of was committed by a person acting under color of state law;
4 and (2) that conduct violated a right secured by the Constitution and laws of the
5 United States. Humphries v. County of Los Angeles, 554 F.3d 1170, 1184 (9th Cir.
6 2009) (citing West v. Atkins, 487 U.S. 42, 48 (1988)).
7
8

ANALYSIS
Plaintiff’s objections add few arguments not already asserted before

9 Magistrate Judge Gallo and considered in the R&R. Nevertheless, the Court
10 liberally construes and considers Plaintiff’s discernable objections as now presented.
11 Plaintiff’s claims are considered on the merits with a brief summary of the R&R’s
12 conclusions, Petitioner’s objections, and the Court’s reasoning. For ease of
13 comparison, the Court analyzes Plaintiff’s claims in the same order utilized by the
14 R&R.
15 1. First Amendment Retaliation Claims Against Defendants Amezcua,
16 Hardman, Alvarez, Dominguez, Villalobos, Castro, Flores, Vitela, and Zamora
17

Plaintiff contends that Defendants T. Alvarez, Amezcua, Dominguez, Castro,

18 Flores, Hardman, Villalobos, Vitela, and Zamora retaliated against Plaintiff because
19 Plaintiff filed prison grievances and a civil lawsuit. (SAC ¶ 208, ECF No. 37).
20 Plaintiff alleges the following retaliatory actions: 1) T. Alvarez refused to deliver
21 Plaintiff’s legal and personal mail; 2) Dominguez refused to deliver Plaintiff’s legal
22 and personal mail and intentionally delivered it to another inmate; 3) Villalobos
23 terminated Plaintiff’s access to the law library and the courts; 4) Amezcua destroyed
24 Plaintiff’s legal materials and took Plaintiff’s legal books; and, 5) Flores and Vitela
25 took and made copies of Plaintiff’s outgoing mail, and then had prison investigative
26 services go to the home of Plaintiff’s daughter’s and seize the same letters. (Id. ¶¶
27 209-211, 213-14, ECF No. 37).
28 ///
-5-

11cv2333

1 A. Summary of the Report and Recommendation
2

Magistrate Judge Gallo recommends that the Plaintiff’s First Amendment

3 retaliation claims against T. Alvarez, Amezcua, Dominguez, Castro, Flores,
4 Hardman, Villalobos, Vitela, and Zamora be dismissed without prejudice. (R&R 26,
5 ECF No. 45). The Magistrate Judge reasons that Plaintiff does not allege sufficient
6 facts demonstrating causation between the allegedly retaliatory acts taken and
7 Plaintiff’s exercise of his First Amendment rights. (See id. at 24-26) (“[Plaintiff]
8 cannot simply list all of the allegedly adverse actions taken against him at CSP, and
9 then conclude that these must have been in retaliation for prison grievances and the
10 civil lawsuit.”).
11 B. Objections to the Report and Recommendation
12

Plaintiff contends that the R&R improperly applied a heightened pleading

13 standard to his First Amendment retaliation claims. (Obj. 2, ECF No. 47).
14 Specifically, Plaintiff contends that the pleading standards of Bell Atlantic Corp. v
15 Twombly and Ashcroft v. Iqbal do not apply to his retaliation claims. (Id.) Plaintiff
16 also contends that his retaliation claims against Flores, Vitela, Villalobos, Zamora,
17 Hardman, Amezcua, T. Alvarez, and Dominguez should not be dismissed because
18 Plaintiff has alleged “enough facts to put the defendants on notice and enable them
19 to file an answer.” (Id.) Further, Plaintiff contends that the R&R failed to apply the
20 standard of improper retaliatory motive. (Id.)
21 C. Analysis
22

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

23 entails five basic elements: (1) An assertion that a state actor took some adverse
24 action against an inmate (2) because of (3) that prisoner’s protected conduct, and
25 that such action (4) chilled the inmate’s exercise of his First Amendment rights, and
26 (5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v.
27 Robinson, 408 F.3d 559, 567-68 (9th Cir. 2004) (citations omitted). Filing an
28 inmate grievance or civil action is protected conduct for purposes of a First
-6-

11cv2333

1 Amendment retaliation claim. Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir.
2 2012); Rhodes v. Robinson, 408 F.3d at 567. “[T]he plaintiff must allege a causal
3 connection between the adverse action and the protected conduct. Because direct
4 evidence of retaliatory intent rarely can be pleaded in a complaint, allegation of a
5 chronology of events from which retaliation can be inferred is sufficient to survive
6 dismissal.” Watison, 668 F.3d at 1114.
7

The Court agrees with the R&R’s finding that Plaintiff does not allege facts

8 plausibly establishing his claims against Defendants Villalobos, Amezcua,
9 Dominguez, Castro, Zamora, Flores, Vitela, Hardman, and Alvarez. Plaintiff alleges
10 that these Defendants took adverse actions against him without a legitimate
11 correctional goal, and that their conduct chilled the exercise of his First Amendment
12 rights. (See SAC ¶¶ 54, 61, 63, 65, 66, 70, 73-74, 79, 81-82, 91, 93-94, 100, 102,
13 121-23, 127, 129, 146, 150, 155, 174, 178-79, 182, 184, ECF No. 37). Nonetheless,
14 Plaintiff fails to allege any facts demonstrating that these Defendants’ acts were
15 “because of” his protected conduct–namely, filing an inmate grievance or appeal.
16 See Rhodes, 668 F.3d at 567-568. Plaintiff alleges that Defendants Flores, Vitella,
17 Hardman acted in retaliation for his prison grievances or appeals, but Plaintiff offers
18 only legal conclusions and no supporting facts. (See SAC ¶¶ 66, 74, ECF No. 37).
19 Further, Plaintiff entirely fails to allege that Defendants Amezcua, Castro,
20 Dominguez, Villalobos, or Zamora acted in retaliation for Plaintiff’s protected
21 conduct.
22

With regard to Defendant Alvarez, Plaintiff includes more factual allegations,

23 such as his contention that Alvarez withheld his mail, removed pages from his
24 outgoing legal mail, and removed legal material and a personal picture from his cell.
25 (Id. ¶¶ 82, 85-86, 88). Moreover, Plaintiff also alleges that Alvarez told him that he
26 would not receive his mail until he dropped his lawsuit, which might suggest that
27 Alvarez targeted Plaintiff because of, and in retaliation for, Plaintiff’s protected
28 conduct. Nonetheless, the Court agrees with the R&R that Plaintiff fails to allege
-7-

11cv2333

1 sufficient facts regarding his purported legal action against Alvarez to establish a
2 claim for retaliation.
3

For the aforementioned reasons, the Court ADOPTS the R&R in full with

4 respect to these claims and DISMISSES WITHOUT PREJUDICE Plaintiff’s First
5 Amendment retaliation claims against Defendants Amezcua, Castro, Dominguez,
6 Villalobos, Zamora, Hardman, Flores, Vitella, and Alvarez.
7 2. Access to the Courts Claim Against Defendant Villalobos
8

Plaintiff contends that Villalobos wrongfully terminated his access to the

9 prison law library. (SAC ¶ 54, ECF No. 37). Plaintiff alleges that this conduct
10 cause him to miss a deadline in at least one civil suit. (Id. ¶¶ 54-61).
11

Magistrate Judge Gallo recommended that Plaintiff’s access to the courts

12 claim against Villalobos be dismissed without prejudice. (R&R 30, ECF No. 45).
13 The R&R reasons that Plaintiff has failed to allege an actual injury arising out of
14 Defendant Villalobos’s actions. (Id. at 28–30). “Plaintiff does not specify which
15 defendant was dismissed from which civil lawsuit and how missing the discovery
16 deadline resulted in dismissal of that defendant,” nor does Plaintiff “identify a
17 remedy that may be awarded as recompense . . . .” (Id. at 29).
18

Plaintiff presents no discernable objection to the Magistrate Judge’s

19 conclusion. Having reviewed the R&R’s analysis of this matter, the Court finds that
20 it is thorough, well reasoned, and contains no clear error. Accordingly, the Court
21 ADOPTS the R&R with respect to this claim and DISMISSES WITHOUT
22 PREJUDICE Plaintiff’s access to the courts claim against Villalobos.
23 3. Access to the Courts Claim Against Defendant Alvarez
24

Plaintiff contends that Alvarez hindered his ability to access the courts. (SAC

25 ¶ 87, ECF No. 37). Plaintiff alleges that Alvarez refused to deliver Plaintiff’s mail
26 until Plaintiff dropped his civil law suit. (Id. ¶ 82). Thereafter, Plaintiff filed a court
27 motion to obtain his mail from Alvarez. (Id. ¶ 84). Allegedly, Alvarez attempted to
28 prevent Plaintiff from filing this action by removing pages from the motion upon
-8-

11cv2333

1 intercepting it en route to the court. (Id. ¶ 85).
2

Magistrate Judge Gallo recommends that Plaintiff’s access to the courts claim

3 against Alvarez be dismissed without prejudice. (R&R 32, ECF No. 45). The R&R
4 reasons that “Plaintiff fails to explain how [Defendant] Alvarez’s actions denied him
5 access to the courts. Plaintiff does not allege that he was never able to file the
6 motion from which Alvarez allegedly removed pages.” (Id.).
7

Plaintiff presents no discernable objection to the Magistrate Judge’s

8 conclusion. Having reviewed the R&R’s analysis, the Court finds that it is
9 thorough, well reasoned, and contains no clear error. Accordingly, the Court
10 ADOPTS the R&R with respect to this claim and DISMISSES WITHOUT
11 PREJUDICE Plaintiff’s access to the courts claim against Defendant T. Alvarez.
12 4. Substantive Due Process Claims Against Defendants Paramo, Castro,
13 Zamora, Lizarraga, and Kornbluth
14

Plaintiff does not explicitly plead a due process claim against Defendants

15 Paramo, Castro, Zamora, Lizzarraga, and Kornbluth, but Plaintiff does allege that
16 these Defendants “create[d] an atypical and significant hardship on Plaintiff.” (SAC
17 ¶ ¶ 141, 152, 168, 180, 203, ECF No. 37). Defendants moved to dismiss any
18 possible due process claim that Plaintiff might be trying to bring and the R&R
19 addressed this argument on the merits. (Mot. to Dismiss 24, ECF No. 40-1; R&R
20 32–34, ECF No. 45). Accordingly, the Court will also address Plaintiff’s possible
21 due process claims against these Defendants.
22 A. Summary of the Report and Recommendation
23

Magistrate Judge Gallo recommends that any due process claims arising out

24 of Plaintiff’s Eighth Amendment claims against Paramo, Castro, Lizarraga,
25 Kornbluth, and Zamora be dismissed with prejudice. (R&R 34, ECF No. 45). The
26 R&R reasons that Plaintiff’s potential substantive due process claims are redundant
27 of, and more appropriately analyzed under, Plaintiff’s Eighth Amendment claims
28 against these Defendants. (Id. at 32-33).
-9-

11cv2333

1 B. Objections to the Report and Recommendation
2

Plaintiff objects to the R&R’s recommendation to dismiss with prejudice

3 Plaintiff’s due process claims against Defendants Paramo, Castro, Zamora,
4 Lizarraga, and Kornbluth. (Obj. 3, ECF No. 47). Plaintiff offers no reasoned
5 argument in support, however.
6 C. Analysis
7

“After conviction, the Eighth Amendment serves as the primary source of

8 substantive protection . . . in cases . . . where the deliberate use of force is challenged
9 as excessive and unjustified.” Graham v. Connor, 490 U.S. 386, 395 n.10 (1989)
10 (citing Whitley v. Albers, 475 U.S. 312, 327 (1986)). “Any protection that
11 substantive due process affords convicted prisoners against excessive force is . . . at
12 best redundant of that provided by the Eighth Amendment.” Id.
13

Based on Plaintiff’s factual allegations, it appears Plaintiff is attempting to

14 raise separate claims under both the Eighth and Fourteenth Amendments based on
15 the same allegedly unlawful conduct. Plaintiff’s allegations may be construed to
16 state an excessive force claim, (see SAC ¶ ¶ 140, 150, 157, 165, ECF No. 37), and a
17 deliberate indifference claim, (see id. ¶¶ 172, 187). Both of these claims are
18 cognizable under the Eighth Amendment. See Graham, 490 U.S. at 395; Estelle v.
19 Gamble, 429 U.S. 97, 104 (1976). “Because the Eighth Amendment provides an
20 explicit source of protection from the type of conduct Plaintiff alleges, his claim is
21 preempted by the Eighth Amendment and should not be analyzed as a substantive
22 due process claim under the Fourteenth Amendment.” Easter v. CDC, 694 F. Supp.
23 2d 1177, 1186 (S.D. Cal. 2010); see also Albright v. Oliver, 510 U.S. 266, 272
24 (1994) (“Where a particular Amendment provides an explicit textual source of
25 constitutional protection against a particular sort of government behavior that
26 amendment, not the more generalized notion of substantive due process must be the
27 guide for analyzing these claims.”) (internal quotation marks and citation omitted).
28

Accordingly, the Court ADOPTS the R&R in full with respect to this issue
- 10 -

11cv2333

1 and DISMISSES WITH PREJUDICE Plaintiff’s Fourteenth Amendment
2 substantive due process claim against Defendants Paramo, Castro, Zamora,
3 Lizarraga, and Kornbluth.
4 5. Procedural Due Process Claims Against Defendants Alvarez, Amezcua, and
5 Dominguez
6

Plaintiff alleges that Defendant Alvarez refused to deliver his incoming legal

7 and personal mail, took a personal picture from his cell, and removed pages from his
8 legal motion. (SAC ¶ ¶ 82-83, 85,88 ECF No. 37). Plaintiff alleges that Alvarez
9 took these measures in retaliation for Plaintiff’s civil lawsuit. (Id. ¶ ¶ 82-83, 88).
10 Further, Plaintiff alleges that Amezcua destroyed Plaintiff’s legal material and took
11 legal texts from his cell. (Id. at 94-96). Finally, Plaintiff alleges that Dominguez
12 intentionally delivered Plaintiff’s mail to the prisoner in the cell next to his. (Id. ¶ ¶
13 121-22). Dominguez allegedly told Plaintiff there was nothing that he could do
14 about it. (Id. ¶ 123).
15 A. Summary of the Report and Recommendation
16

Magistrate Judge Gallo noted that he “does not believe that Plaintiff sought to

17 allege that Defendants Alvarez, Amezcua, or Dominguez violated his procedural due
18 process rights. However, because Defendants proceed out of caution [in moving for
19 dismissal of such claims], the Court will address the arguments.” (R&R 35, ECF
20 No. 45). The Magistrate Judge recommends any due process claims against Alvarez,
21 Amezcua, and Dominguez based on deprivation of Plaintiff’s property be dismissed
22 with prejudice. (Id. at 37). The R&R reasons that Plaintiff cannot state a claim for
23 violation of his due process rights by these defendants for the taking of his property
24 because “California law provides [Plaintiff] an adequate post-deprivation remedy.”
25 (Id. at 37).
26 B. Objections to the Report and Recommendation
27

Plaintiff objects to the R&R’s recommendation. (Obj. 3, ECF No. 47).

28 Plaintiff offers no reasoned argument in support, however.
- 11 -

11cv2333

1 C. Analysis
2

“[A]n unauthorized intentional deprivation of property by a state employee

3 does not constitute a violation of the procedural requirements of the Due Process
4 Clause of the Fourteenth Amendment if a meaningful post-deprivation remedy for
5 the loss is available.” Hudson v. Palmer, 458 U.S. 517, 533 (1984); see also 42
6 U.S.C. § 1997e(a). A deprivation is unauthorized if “the state administrative
7 machinery did not and could not have learned of the deprivation until after it
8 occurred.” Piatt v. MacDougall, 773 F.2d 1032, 1036 (9th Cir. 1985).
9

Here, Plaintiff is able to access an adequate post-deprivation remedy. See

10 Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994). Accordingly, Plaintiff’s
11 complaint does not state a procedural due process claim for deprivation of property
12 against Defendants Paramo, Castro, Zamora, Lizzarraga, and Kornbluth.
13 Nonetheless, the Court is inclined to provide Plaintiff an opportunity to amend his
14 complaint in case he can allege facts indicating that he was not allowed to access a
15 post-deprivation remedy. See Hudson v. Palmer, 468 U.S. 517, 533
16 (1984); Blueford v. Prunty, 108 F.3d 251, 256 (9th Cir. 1997).
17

Therefore, the Court ADOPTS IN PART the R&R and DISMISSES

18 WITHOUT PREJUDICE Plaintiff’s due process claims against Defendants
19 Paramo, Castro, Zamora, Lizzarraga, and Kornbluth based on deprivation of
20 Plaintiff’s property.
21 6. Due Process Claim Against Hardman
22

Plaintiff contends that Hardman issued him an illegitimate rules violation

23 ticket for destruction of state property. (SAC ¶ 73, ECF No. 37). Plaintiff alleges
24 that Hardman imposed an “atypical and significant hardship on [P]laintiff,” because
25 the illegitimate rule violation subjected Plaintiff to a higher level of prison security.
26 (SAC ¶ 78, ECF No. 37).
27

Magistrate Judge Gallo recommends that Plaintiff’s due process claim against

28 Hardman be dismissed without prejudice. (R&R 38, ECF No. 45). The R&R
- 12 -

11cv2333

1 presumes that “Plaintiff received a hearing on the rules violation report because he
2 does not state any allegations that he did not,” and reasons that “Plaintiff’s due
3 process rights were not violated just because he was issued an unwarranted rules
4 violation report.” (Id.).
5

Plaintiff presents no discernable objection to the Magistrate Judge’s

6 conclusion. Having reviewed the R&R’s analysis of this issue, the Court finds that it
7 is thorough, well reasoned, and contains no clear error. Accordingly, the Court
8 ADOPTS the R&R with respect to this claim and DISMISSES WITHOUT
9 PREJUDICE Plaintiff’s due process claim against Hardman.
10 7. Eighth Amendment Failure to Supervise Subordinates Claim Against
11 McEwen and Janda
12

Plaintiff contends that McEwen and Janda violated Plaintiff’s Eighth

13 Amendment right to be free of cruel and unusual punishment. (SAC ¶ 216, ECF No.
14 37). Plaintiff alleges in support that McEwen and Janda failed to intervene and stop
15 retaliatory actions taken against Plaintiff by other Defendants. (Id.).
16

Magistrate Judge Gallo recommends that Plaintiff’s failure to supervise claims

17 against Defendants McEwen and Janda be dismissed without prejudice. (R&R 41,
18 ECF No. 45). The R&R reasons that, as currently plead, Plaintiff has not
19 sufficiently alleged that Plaintiff put either McEwen or Janda on notice of the
20 wrongful conduct of other Defendants retaliating against him. (Id. at 40-41).
21

Plaintiff presents no discernable objection to the Magistrate Judge’s

22 conclusions. Having reviewed the R&R’s analysis of this issue, the Court finds that
23 it is thorough, well reasoned, and contains no clear error. Accordingly, the Court
24 ADOPTS the R&R in full with respect to these claims and DISMISSES
25 WITHOUT PREJUDICE Plaintiff’s failure to supervise claims against Defendants
26 McEwen and Janda.
27 ///
28 ///
- 13 -

11cv2333

1 8. Eighth Amendment Failure to Intervene Claims Against McEwen and Janda
2

Plaintiff contends that McEwen and Janda violated Plaintiff’s Eighth

3 Amendment right to be free of cruel and unusual punishment. (SAC ¶ 216, ECF No.
4 37). Plaintiff alleges in support that McEwen and Janda failed to intervene and stop
5 retaliatory action made against Plaintiff by other Defendants. (Id.).
6

Magistrate Judge Gallo recommends that Defendants’ motion to dismiss

7 Plaintiff’s Eighth Amendment failure to intervene claims be denied. (R&R 43, ECF
8 No. 45). The R&R reasons that “Defendants do not address Plaintiff’s Eighth
9 Amendment claim arising from the standpoint of failure to intervene,” even though
10 “the crux of Plaintiff’s Eighth Amendment claim against McEwen and Janda is their
11 failure to intervene.” (Id.). Accordingly, the R&R “declines to recommend
12 dismissal of Plaintiff’s claims sua sponte.” (Id.).
13

Defendants present no objection. Having reviewed the R&R’s conclusion, the

14 Court finds that it is thorough, well reasoned, and contains no clear error.
15 Accordingly, the Court ADOPTS the R&R with respect to these claims and
16 DENIES Defendants’ Motion to Dismiss Plaintiff’s Eighth Amendment failure to
17 intervene claims against Defendants McEwen and Janda.
18 9. Fourteenth Amendment Due Process Claims Against McEwen and Janda for
19 Failure to Hear His Appeals
20

Plaintiff alleges that on August 1, 2010, he provided McEwen with an

21 administrative appeal. (SAC ¶ 21, ECF No. 37). McEwen never responded to this
22 appeal. (Id. ¶ 24). Plaintiff further contends that Janda denied nine appeals that
23 contained complaints pertaining to the retaliatory actions taken by other Defendants.
24 (Id. ¶ 114). Plaintiff does not explicitly claim that these actions violated his
25 Fourteenth Amendment rights. Defendants moved to dismiss any possible due
26 process claim that Plaintiff might be trying to allege, however, and the R&R
27 addressed this argument on the merits. Accordingly, the Court will address
28 Plaintiff’s possible due process claims against Defendants McEwen and Janda.
- 14 -

11cv2333

1 A. Summary of the Report and Recommendation
2

Magistrate Judge Gallo recommends that Plaintiff’s Fourteenth Amendment

3 claims against Defendants McEwen and Janda, arising out of these Defendants’
4 failure to respond to Plaintiff’s appeals, be dismissed with prejudice. (R&R 45, ECF
5 No. 45). The R&R reasons “Plaintiff has no cause of action against McEwen or
6 Janda . . . because he lacks a protected liberty interest.” (Id. at 44).
7 B. Objections to the Report and Recommendation
8

Plaintiff objects to the R&R’s recommendation. (Obj. 3, ECF No. 47).

9 Plaintiff offers no reasoned argument in support, however.
10 C. Analysis
11

To analyze a claim made under the due process clause, “[the Court] first

12 ask[s] whether there exists a liberty or property interest of which a person has been
13 deprived, and if so [the Court] ask[s] whether the procedures followed by the State
14 were constitutionally sufficient.” Swarthout v. Cooke, 131 S. Ct. 859, 861 (2011)
15 (citing Ky. Dept. of Corr. v. Thompson, 490 U.S. 454, 460 (1989)).
16

Plaintiff’s claim fails on the first step of the inquiry. Inmates do not have a

17 liberty interest in a prison grievance or appeals procedure. See Ramirez v. Galaza,
18 334 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir.
19 1988); Riley v. Dunn, No. CV 09-8850-JFW (MLG), 2011 WL 4940855, at *7 (C.D.
20 Cal. Oct. 14, 2011) (“Plaintiff has no constitutional right to an effective grievance or
21 appeal procedure.”). Thus, because the sole basis of Plaintiff’s claim is that
22 McEwen and Janda either denied or did not respond to Plaintiff’s prison appeals,
23 Plaintiff does not state a claim upon which relief may be granted. For the same
24 reason, Plaintiff’s objection is groundless.
25

Accordingly, the Court ADOPTS the R&R in full with respect to these claims

26 and DISMISSES WITH PREJUDICE Plaintiff’s claims against Defendants Janda
27 and McEwen for violating his due process rights.
28 10. First Amendment Retaliation Claim Against Defendants McEwen and
- 15 -

11cv2333

1 Janda
2

Plaintiff contends that McEwen retaliated against him and chilled Plaintiff’s

3 exercise of his First Amendment rights. Plaintiff alleges that on August 1, 2010,
4 Plaintiff presented an appeal to McEwen. (SAC ¶ 21, ECF No. 37). Thereafter, on
5 August 2, 2010, Plaintiff alleges that in retaliation for his appeal, Plaintiff was
6 placed in a prison yard characterized by racial tension. (Id. ¶ 21). Plaintiff further
7 alleges that on August, 8, 2010, Plaintiff was setup to be attacked by a group of
8 white prisoners in retaliation for his appeal to McEwen. (Id. ¶ 27).
9

Plaintiff also contends that McEwen retaliated against him by taking actions

10 against Plaintiff that had no legitimate correctional purpose, and ultimately chilled
11 Plaintiff’s exercise of his First Amendment rights. (Id. ¶ ¶ 119-20). The Court is
12 unable to identify any specific supporting facts within Plaintiff’s SAC.
13 A. Summary of the Report and Recommendation
14

Magistrate Judge Gallo recommends that Plaintiff’s retaliation claims against

15 Defendant McEwen be dismissed without prejudice. (R&R 47-48, ECF No. 45).
16 The R&R reasons that Plaintiff has alleged some facts that could demonstrate
17 McEwen was retaliating against Plaintiff, but on the whole, fails to allege sufficient
18 facts to state a cause of action. (Id. at 47).
19

Additionally, Magistrate Judge Gallo recommends that Plaintiff’s claims

20 against Defendant Janda be dismissed with prejudice. (Id. at 48). The R&R reasons
21 that Plaintiff has failed to allege specific facts demonstrating that Defendant Janda
22 retaliated against Plaintiff for engaging in protected speech. (Id. at 47-48).
23 B. Objections to the Report and Recommendation
24

Plaintiff objects to the R&R’s recommendation to dismiss with prejudice

25 Plaintiff’s retaliation claims against Janda. (Obj. 3, ECF No. 47). Plaintiff offers
26 no reasoned argument in support, however. Plaintiff presents no discernable
27 objection to the R&R’s recommendation to dismiss without prejudice Plaintiff’s
28 claim against McEwen.
- 16 -

11cv2333

1 C. Analysis
2

Having reviewed the R&R’s analysis of Plaintiff’s retaliation claim against

3 Defendant McEwen, the Court finds that it is thorough, well reasoned, and contains
4 no clear error. Accordingly, the Court ADOPTS the R&R with respect to this claim
5 and DISMISSES WITHOUT PREJUDICE Plaintiff’s First Amendment retaliation
6 claim against McEwen .
7

Regarding Defendant Janda, Plaintiff fails to provide sufficient facts of

8 Janda’s wrongdoing. Plaintiff avers no more than legal conclusions to the effect that
9 Janda lacked a legitimate correctional goal in holding Plaintiff in administrative
10 segregation and that Janda’s actions chilled Plaintiff’s exercise of his First
11 Amendment rights. (SAC ¶¶ 119-20, ECF No. 37). Plaintiff fails to allege any facts
12 plausibly establishing that Janda’s acts against Plaintiff were “because of” Plaintiff’s
13 protected conduct. See Rhodes, 408 F.3d at 567-68. Accordingly, Plaintiff fails to
14 plead enough facts to survive a motion to dismiss. Nonetheless, the Court is inclined
15 to give Plaintiff an opportunity to amend his complaint to state a viable cause of
16 action.
17

For the foregoing reasons, the Court ADOPTS the R&R in part and

18 DISMISSES WITHOUT PREJUDICE Plaintiff’s retaliation claim against
19 Defendant Janda.
20 11. Eighth and Fourteenth Amendment Claims Against McEwen
21 and Janda Arising From Their Work on the Classification Committee
22

Plaintiff contends that Janda and McEwen violated Plaintiff’s Fourteenth

23 Amendment due process rights by sending him to the administrative segregation unit
24 (“ASU”) for a total of fourteen months. (SAC ¶ ¶ 40, 111, ECF No. 37). Plaintiff
25 also alleges that Janda and McEwen conspired to hold Plaintiff in the ASU. (Id. ¶
26 112).
27

Magistrate Judge Gallo recommends that Plaintiff’s Fourteenth Amendment

28 claims against Defendants McEwen and Janda arising from their work on the
- 17 -

11cv2333

1 classification committee be dismissed without prejudice. (R&R 51, ECF No. 45).
2 The R&R reasons that “Plaintiff’s placement in the ASU and the conditions of the
3 ASU,” were not “not a major disruption in Plaintiff’s environment,” and did not
4 deprive Plaintiff of his due process rights.” (Id. at 50). Accordingly, the R&R does
5 not reach the “question as to whether Plaintiff was afforded a fair hearing.” (Id. at
6 51).
7

Plaintiff presents no discernable objection. Having reviewed the R&R, the

8 Court finds that it is thorough, well reasoned, and contains no clear error.
9 Accordingly, the Court ADOPTS the R&R with respect to this issue and
10 DISMISSES WITHOUT PREJUDICE Plaintiff’s Eighth and Fourteenth
11 Amendment claims against Defendants McEwen and Janda arising from their work
12 on the classification committee.
13

CONCLUSION

14

For the aforementioned reasons, the Court ADOPTS IN PART the R&R,

15 GRANTS IN PART Defendants’ motion to dismiss, and DISMISSES WITH
16 PREJUDICE:
17

(1) Plaintiff’s substantive due process claims against Paramo, Castro,

18 Lizzarraga, Kornbluth, and Zamora; and,
19

(2) Plaintiff’s procedural due process claims against McEwen and Janda for

20 denial and failure to hear his appeals.
21

The Court also DISMISSES WITHOUT PREJUDICE:

22

(1) Plaintiff’s First Amendment retaliation claims against Amezcua, Castro,

23 Dominguez, Villalobos, Zamora, Hardman, Flores, Vitella, Alvarez, McEwen, and
24 Janda;
25

(2) Plaintiff’s access to the courts claim against T. Alvarez and Villalobos;

26

(3) Plaintiff’s procedural due process claims against Alvarez, Amezcua, and

27 Dominguez arising from deprivation of Plaintiff’s property;
28

(4) Plaintiff’s due process claim against Hardman;
- 18 -

11cv2333

1

(5) Plaintiff’s Eighth Amendment failure to supervise claims against McEwen

2 and Janda; and,
3

(6) Plaintiff’s Eighth and Fourteenth Amendment claims against McEwen and

4 Janda arising from their work on the classification committee.
5

Finally, the Court DENIES IN PART Defendants’ motion to dismiss and

6 declines to dismiss Plaintiff’s Eighth Amendment failure to intervene claims against
7 McEwen and Janda.
8

If he wishes, Plaintiff SHALL FILE a third amended complaint addressing

9 the deficiencies noted by the Court within 45 days of the date that this Order is
10 electronically docketed. The Court cautions Plaintiff that failure to cure the
11 deficiencies identified may result in dismissal with prejudice. Plaintiff’s amended
12 complaint must be complete in itself without reference to any superseding pleadings.
13 See CivLR 5.1. Defendants not named and all claims not re-alleged in the amended
14 complaint will be deemed to have been waived. See King v. Atiyeh, 814 F.2d 565,
15 567 (9th Cir. 1987).
16

IT IS SO ORDERED.

17
18 DATED: August 26, 2013
19
20

Honorable Janis L. Sammartino
United States District Judge

21
22
23
24
25
26
27
28
- 19 -

11cv2333