Cejas v. Paramo et al

Filing 29

REPORT AND RECOMMENDATION Re MOTION To Dismiss (Dkt # 17 ): Objections to R&R due by 5/5/2017. Replies due by 5/19/2017. Signed by Magistrate Judge William V. Gallo on 3/28/2017. (All non-registered users served via U.S. Mail Service.) (mdc)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 14-CV-1923-WQH(WVG) ANDREW A. CEJAS, Plaintiff, 12 13 14 REPORT AND RECOMMENDATION RE: MOTION TO DISMISS BY DEFENDANTS PARAMO AND JAIME v. DANIEL PARAMO et al., Defendants. 15 16 17 Pending before the Court is a motion filed by Defendants Paramo and Jaime to 18 dismiss certain claims against them for failure to state a claim. Despite the liberal pleading 19 standards afforded to a pro se litigant, for the reasons set forth below the Court 20 RECOMMENDS that Defendants’ motion be GRANTED as to the specific claims 21 disputed in their motion. 22 I. PROCEDURAL OVERVIEW 23 Plaintiff, proceeding pro se, filed a civil rights Complaint pursuant to 42 U.S.C. 24 § 1983 on August 15, 2014. (Doc. No. 1.) When Defendants did not file an answer, 25 Plaintiff filed a Motion for Default Judgment. (Doc. No. 12.) Defendant then filed a 26 Motion to Dismiss for Failure to State a Claim on October 4, 2016 and a Response in 27 28 1 14-CV-1923-WQH(WVG) 1 Opposition to Plaintiff’s Motion for Default Judgment on October 5, 2016. (Doc. Nos. 17, 2 19.) Defendants only seek to dismiss Plaintiff’s claims against Defendant Paramo and the 3 retaliation claim against Defendant Jaime. (Doc. No. 17.) On November 25, 2016, 4 Plaintiff filed an Opposition to the Motion to Dismiss. (Doc. No. 24.) Defendants did not 5 file a reply in support of their Motion to Dismiss. This Court then denied Plaintiff’s Motion 6 for Default Judgment on October 26, 2016. (Doc. No. 20.) 7 II. 8 A. FACTUAL ALLEGATIONS1 Claims Against Defendant Jaime 9 All events related to Plaintiff’s Complaint transpired between September 2013 and 10 April 2014 at the Richard J. Donovan Correctional Facility in San Diego, California, where 11 Plaintiff is an inmate. (Id. at 1, 8-9.) Plaintiff’s claims against Defendant Jaime spring 12 from a dispute Plaintiff had with Defendant Rutledge. 13 Plaintiff claims that during the summer of 2013, Sergeant Rutledge conducted a 14 search of Plaintiff’s cell block. (Id. at 12.) While searching Plaintiff’s cell, Rutledge saw 15 Plaintiff’s Buddhist altar cloth and ordered a subordinate officer to seize the altar cloth and 16 deposit it on a heap of dirty laundry. (Id.) Defendant Rutledge reasoned that the altar cloth 17 was a bed sheet that had been altered with swastikas, which was grounds for confiscation. 18 (Id. at 12-13.) The altar cloth featured a Buddha sitting on a lotus in the middle; a peacock 19 feather on the side; a snake known as Naga, the god of rain, on the other side; and swastikas 20 in each corner. Plaintiff asserts that swastikas are Buddhist symbols. (Id. at 13-14.) 21 Plaintiff claims that he spoke to another sergeant, who approached the confiscating 22 officer and explained that the cloth was a religious artifact. (Id. at 12.) That officer then 23 returned Plaintiff’s Buddhist altar cloth. (Id. at 12.) Plaintiff asserts that this was the 24 25                                                         26 1 27 28 The factual allegations herein are from Plaintiff’s Complaint and are taken as true for purposes of the pending motion to dismiss only. 2 14-CV-1923-WQH(WVG) 1 second time that Defendant Rutledge had attempted to confiscate Plaintiff’s altar cloth, 2 commenting, “Sergeant S. Rutledge is a black officer, and has a prejudice and 3 discrimination problem with the Buddhist Altar Cloth because it had Swastikas on all four 4 corners.” (Id. at 12-13.) 5 Plaintiff claims that on August 13, 2013, he approached Defendant Rutledge in the 6 prison yard and presented him with a CDCR 22 Inmate Request for Interview form 7 requesting an explanation for the confiscation of his Buddhist altar cloth. (Id. at 14.) In 8 the CDCR, Plaintiff explained that the altar cloth was light gray, whereas the facility’s bed 9 sheets were white, and provided brief descriptions of the altar cloth’s symbols and 10 meanings. (Id. at 13-14.) Correctional officers in receipt of a CDCR 22 have an obligation 11 to respond to it within three business days. (Id. at 75-76.) When Plaintiff did not receive 12 a response to his CDCR 22, on September 12, 2013, Plaintiff approached Defendant 13 Rutledge and asked if he was going to respond. (Id. at 14.) Rutledge said that he did not 14 have to answer it, and when Plaintiff pressed him, Rutledge “took it personal [sic] as [if] 15 plaintiff was telling him how to do his job. Thereafter, Sergeant Rutledge threatened . . . 16 to search [Plaintiff’s] cell and threatened to take the hat [Plaintiff] was wearing.” (Id. at 17 14.) Rutledge subsequently ordered Officer Carter to confiscate Plaintiff’s hat, which 18 terminated the conversation. (Id. at 14.) 19 Before the end of yard release on September 12, 2013, Plaintiff attempted to access 20 his cell but was told that officers were searching it. (Id.) Defendant Rutledge had ordered 21 Officer Jaime to search Plaintiff’s cell. (Id.) During the search, Jaime confiscated 22 Plaintiff’s headphones, the Buddhist altar cloth, and a baseball hat. (Id.) Plaintiff claims 23 that on his report, Jaime indicated that he had confiscated the Buddhist altar cloth because 24 it was an altered handkerchief. (Id.) 25 Once the search had been completed, Plaintiff was summoned to the Program Office, 26 where he found Defendants Rutledge and Jaime waiting with Lieutenant Allamby along 27 28 3 14-CV-1923-WQH(WVG) 1 with all of Plaintiff’s confiscated property. (Id. at 14-15.) Plaintiff attempted to explain to 2 Lieutenant Allamby that he had asked Rutledge when he would receive a response to the 3 CDCR 22, and that the Buddhist altar cloth was a religious artifact, not an altered 4 handkerchief. (Id. at 15.) Lieutenant Allamby responded that the return of the altar cloth 5 would be at Rutledge’s discretion. (Id.) Plaintiff claims that he requested the return of his 6 altar cloth, but Rutledge declined the request. (Id.) 7 On September 20, 2013, Plaintiff filed a Citizen Complaint against Defendant 8 Rutledge for his failure to respond to the CDCR 22. (Id.) Plaintiff claims that he then 9 submitted a CDCR 22 to Defendant Jaime on October 1, 2013, requesting the return of 10 Plaintiff’s Buddhist altar cloth. (Id. at 16.) Jaime did not respond to the CDCR 22, so on 11 November 13, 2013, Plaintiff submitted a second CDCR 22 to him with the same request. 12 (Id. at 17.) That CDCR 22 also went unanswered. (Id.) Plaintiff consequently filed a 13 Citizen Complaint against Jaime for his repeated failure to respond to the CDCR 22 14 complaints. (Id.) 15 On February 7, 2014, Defendant Jaime finally responded to section B of the 16 November 13, 2013, CDCR 22 that Plaintiff had filed against him, saying, “Title 15 CCR 17 S. 3032(B) inmate shall not alter personal [sic] owned clothing. Your items were alter [sic] 18 with the Swastika symbol.” (Id. at 19.) Plaintiff claims that he responded to Defendant 19 Jaime’s answer by identifying the Buddhist altar cloth as permissible property under the 20 Religious Property Matrix guidelines. (Id.) 21 Plaintiff alleges Defendant Jaime violated his First Amendment rights when Jaime 22 searched Plaintiff’s cell and confiscated a Buddhist altar cloth in retaliation for Plaintiff’s 23 request that Defendant Rutledge respond to the grievance Plaintiff had filed against 24 Rutledge. (Id. at 27.) Plaintiff claims that the search and confiscation “represent[] a pattern 25 of events demonstrating intentional retaliation against Plaintiff” and that the “confiscation 26 of Plaintiff’s Buddhist altar cloth imposed a substantial burden on his religious exercise” 27 28 4 14-CV-1923-WQH(WVG) 1 because the “Buddhist altar cloth was used in Plaintiff’s religious worship, and Plaintiff 2 was unable to meaningfully practice his religion without the Buddhist altar cloth.” (Id.) 3 B. Claims Against Defendant Paramo 4 Plaintiff’s claims against Defendant Paramo stem from his handling of Citizen 5 Complaints Plaintiff filed against Appeals Coordinator Defendants R. Olson and J. 6 Ramirez. 7 On December 30, 2013, Plaintiff filed a Citizen Complaint against Appeals 8 Coordinators R. Olson and J. Ramirez for “impairing the filing of Citizen Complaints 9 against Sergeant Rutledge that was submitted to the Appeals Coordinators months ago 10 dated on September 20, 2013.” (Id. at 18.) Further, Plaintiff contends that Defendants 11 Olson and Ramirez destroyed or lost the Citizen Complaints that Plaintiff had filed against 12 Rutledge and Jaime. (Id. at 20.) Plaintiff claims that Olson and Ramirez then screened 13 out2 the Complaint Plaintiff had filed against them. (Id. at 18.) Plaintiff claims that he sent 14 the Citizen Complaint back to the Appeals Coordinators, believing that the screen-out had 15 been erroneous. (Id.) On January 24, 2014, the Defendant Appeals Coordinators screened- 16 out the Citizen Complaint again. (Id.) Plaintiff then challenged the screen-out on January 17 27, 2014 but did not receive a response. (Id. at 19.) 18 On February 10, 2014, Plaintiff sent legal mail to Defendant Paramo and enclosed 19 the two Citizen Complaints—one against each Defendant Appeals Coordinator. (Id. at 19- 20 20.) Paramo allegedly “did not answer, but read and sent the Citizen Complaints to the 21 Appeal Coordinator Olson and Ramirez,” who promptly screened-out the Citizen 22 Complaints yet again. (Id. at 20.) Plaintiff allegedly again challenged the screen-out, but 23 did not receive a response. (Id.) 24 25 26 27 28                                                         2 This term essentially means “rejected.” 5 14-CV-1923-WQH(WVG) 1 Plaintiff claims that consequently, on March 5, 2014, he filed a Citizen Complaint 2 against Defendant Paramo for having returned the Citizen Complaints about the Appeals 3 Coordinators to the Appeals Coordinators themselves to screen out at their discretion. (Id. 4 at 21.) Defendants Olson and Ramirez also screened out that Citizen Complaint. (Id.) 5 Plaintiff alleges that “Appeals Coordinators have screened out . . . all Citizen Complaints 6 filed by Plaintiff.” (Id.) Plaintiff challenged that screen-out as well, but did not receive a 7 response. (Id.) 8 Plaintiff contends that Defendant Paramo violated his First and Fourteenth 9 Amendment rights when Paramo “did not answer, but read and sent the Citizen Complaints 10 [against Defendants Olson and Ramirez] to the Appeal Coordinator[s] Olson and 11 Ramirez.” (Id. Doc. No. 1 at 20.) Defendants Olson and Ramirez then in turn repeatedly 12 “screen[ed] out the staff misconduct against themself [sic],” which is why Plaintiff had 13 petitioned Defendant Paramo in the first place. (Id. at 21.) Plaintiff further alleges that 14 Paramo violated his First and Fourteenth Amendment rights by “preventing Plaintiff from 15 obtaining relief and from recovering his Buddhist pendant or Buddhist altar cloth because 16 [P]aramo hired [A]ppeals [C]oordinator[s] R. Olson and J. Ramirez, [sic] Paramo is their 17 boss.” (Id. at 28.) Because Defendant Paramo is the warden, Plaintiff claims that, “[h]e is 18 also policy maker for RJDP [Richard J. Donovan Prison], and establishes policies or 19 written regulations that result in violations of constitutionally established civil rights.” (Id. 20 at 9.) 21 22 III. A. LEGAL STANDARD Rule 12(b)(6) Motion to Dismiss 23 A defendant may move to dismiss a complaint for “failure to state a claim upon 24 which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A motion to dismiss pursuant to 25 Rule 12(b)(6) tests the legal sufficiency of the claims in the complaint. Id. Federal Rule 26 of Civil Procedure 8(a)(2) requires only a “short and plain statement of the claim showing 27 28 6 14-CV-1923-WQH(WVG) 1 that the pleader is entitled to relief” in order to “give the defendant fair notice of what the 2 . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 3 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 4 In ruling on a motion under Rule 12(b)(6), the Court must accept as true all material 5 allegations in the complaint, as well as reasonable inferences to be drawn from them, and 6 must construe the complaint in the light most favorable to the plaintiff. Parks Sch. of Bus., 7 Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995) (“A complaint should not be 8 dismissed unless a plaintiff could prove no set of facts in support of his claim that would 9 entitle him to relief.”). The Court should not consider whether the plaintiff ultimately will 10 prevail. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis 11 v. Scherer, 468 U.S. 183 (1984). Factual allegations, however, must be “enough to raise a 12 right to relief above the speculative level.” Twombly, 550 U.S. at 555; see also Ashcroft v. 13 Iqbal, 556 U.S. 662, 678 (2009) (“[A] complaint must contain sufficient factual matter, 14 accepted as true, to ‘state a claim to relief that is plausible on its face.’ A claim has facial 15 plausibility when the plaintiff pleads factual content that allows the court to draw the 16 reasonable inference that the defendant is liable for the misconduct alleged.”). 17 B. Standards Applicable to Pro Se Litigants in Civil Rights Actions 18 Where, as here, a plaintiff appears in propria persona in a civil rights suit, the Court 19 also must be careful to construe the pleadings liberally and afford the plaintiff any benefit 20 of the doubt. See Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988), 21 abrogated in part as stated in Boarman v. County of Sacramento, No. 2:11-cv-0285, 2013 22 WL 1326196, at *7 (E.D. Cal. Mar. 29, 2013); Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 23 (9th Cir. 1985). This rule of liberal construction is “particularly important in civil rights 24 cases.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). In construing a pro se 25 civil rights complaint liberally, however, a court may not “supply essential elements of the 26 claim that were not initially pleaded.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 27 28 7 14-CV-1923-WQH(WVG) 1 F.2d 266, 268 (9th Cir. 1982). “Vague and conclusory allegations of official participation 2 in civil rights violations are not sufficient to withstand a motion to dismiss.” Id.; see also 3 Sherman v. Yakahi, 549 F.2d 1287, 1290 (9th Cir. 1977) (“Conclusionary allegations, 4 unsupported by facts, [will be] rejected as insufficient to state a claim under the Civil Rights 5 Act.”) Thus, at a minimum, even the pro se plaintiff “must ‘allege with at least some 6 degree of particularity overt acts which defendants engaged in’ that support [his] claim.” 7 Jones v. Cmty. Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984) (quoting Powell 8 v. Workmen’s Comp. Bd., 327 F.2d 131, 137 (2d Cir. 1964)). 9 IV. DISCUSSION 10 Accepting all material allegations in the Complaint as true and drawing all 11 reasonable inferences therefrom, Plaintiff has not alleged facts sufficient to state a claim 12 for relief that is plausible on its face with respect to Plaintiff’s respondeat superior claim 13 against Defendant Paramo and his retaliation claim against Defendant Jaime. 14 A. Claims Against Defendant Jaime3 15 Plaintiff alleges that Defendant Jaime violated his First Amendment rights by 16 retaliating against him for speaking with prison officials and for pursuing internal 17 grievances against Defendant Rutledge. 18 “Incarceration does not divest prisoners of all constitutional protections.” Shaw v. 19 Murphy, 532 U.S. 223, 228 (2001). There is no statute or case law to suggest that prisoners 20 do not have a right to speak to correctional officers. See, e.g., Clark v. Woodford, 36 Fed. 21 Appx. 240, 241 (9th Cir. 2002). In particular, “[p]risoners have a First Amendment right 22 to file grievances against prison officials and to be free from retaliation for doing so.” 23 24 25 26 27 28                                                         3 Defendants assert that the Court “should dismiss Plaintiff’s retaliation claims against Defendants Jaime and Strayhorn.” (Doc. No. 17 at 4.) However, as Plaintiff notes in his Opposition, “Defendant Strayhorn was not added to the First Cause of Action for Retaliation.” (Doc. No. 24 at 15.) 8 14-CV-1923-WQH(WVG) 1 Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (citing Brodheim v. Cry, 584 F.3d 2 1262, 1269 (9th Cir. 2009)). Retaliation claims have five elements. Id. 3 First, a plaintiff must claim that “the retaliated-against conduct is protected.” Id. 4 Filing a grievance against a correctional officer or other individual within the prison’s 5 administration is protected conduct. Id. 6 Second, Plaintiff must allege that the “defendant took adverse action against the 7 plaintiff,” though “the adverse action need not be an independent constitutional violation.” 8 Id. 9 Third, the plaintiff must claim that a causal connection exists between the adverse 10 action and the plaintiff’s protected conduct. Id. In other words, “a plaintiff must show that 11 his protected conduct was ‘the “substantial” or “motivating” factor behind the defendant’s 12 conduct.’” Brodheim, 584 F.3d at 1271 (quoting Soranno’s Gasco, Inc. v. Morgan, 874 13 F.2d 1310, 1314 (9th Cir. 1989)). Owing to the fact that a plaintiff rarely can produce 14 direct evidence of a defendant’s retaliatory intent, a plaintiff may plead circumstantial 15 evidence that permits the inference of retaliation, such as the chronology of events. See 16 Watison, 668 F.2d at 1114; see also Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995). 17 Fourth, “the plaintiff must allege that the ‘official’s acts would chill or silence a 18 person of ordinary firmness from future First Amendment activities.’” Watison, 668 F.2d 19 at 1114 (quoting Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005)). An otherwise 20 permitted action can be the basis for a retaliation claim if performed with a retaliatory 21 motive and lacking a legitimate correctional goal. See id. at 1115. Even if a plaintiff fails 22 to allege a chilling effect, he may still state a claim by alleging that he suffered some other 23 “more than minimal” harm. Id. 24 Finally, the plaintiff must allege that the defendant’s retaliatory conduct did not 25 advance legitimate penological interests. Id. “A plaintiff successfully pleads this element 26 by alleging, in addition to a retaliatory motive, that the defendant’s actions were arbitrary 27 28 9 14-CV-1923-WQH(WVG) 1 and capricious . . . or that they were ‘unnecessary to the maintenance of order in the 2 institution.’” Id. at 1114-15 (quoting Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir. 3 1984)) (internal citations omitted). 4 In Watison, the plaintiff brought a § 1983 suit for the alleged retaliation against him 5 for filing prison grievances. 668 F.3d at 1115. After the plaintiff filed a grievance against 6 the defendant correctional officer for racial discrimination, the officer allegedly retaliated 7 against the plaintiff by writing a false report claiming that the plaintiff had called her an 8 expletive. Id. The plaintiff filed another grievance alleging retaliation and, consequently, 9 the defendant correctional officer placed him in administrative segregation. Id. At the 10 plaintiff’s subsequent parole hearing, the defendant correctional officer testified that the 11 plaintiff had been placed in administrative segregation for verbally abusing the staff, and 12 the parole board denied the plaintiff parole. Id. The court held that the plaintiff had 13 sufficiently alleged a claim of First Amendment retaliation for his filing of grievances 14 against the defendant correctional officer. Id. 15 Here, Plaintiff alleges that he “suffered retaliation from Defendant Rutledge and 16 Jaime when Plaintiff approached Rutledge to speak with him about a grievance to be 17 answered. Plaintiff claims that “Defendant Rutledge threaten[ed] to search Plaintiff[’s] 18 cell in retaliation and carried out that threat.” (Doc. No. 1 at 27.) Defendant Jaime is the 19 officer who Rutledge later ordered to search Plaintiff’s cell. (Id. at 25-26.) While searching 20 Plaintiff’s cell, Jaime confiscated Plaintiff’s headphones and Buddhist altar cloth, claiming 21 that it was “an altered handkerchief.” (Id. at 26.) Additionally, Plaintiff claims “Officer 22 Jaime added the baseball cap that Officer Carter confiscated [during Plaintiff’s earlier 23 conversation with Defendant Rutledge] to the cell search slip receipt.” (Id.) Plaintiff 24 further contends that Jaime’s inclusion of the baseball cap on the cell search slip “is proof 25 that Defendant Jaime carried out Defendant Rutledge’s threat of searching Plaintiff’s cell 26 for [the] exercise of [his] free speech rights . . . .” (Id.) 27 28 10 14-CV-1923-WQH(WVG) 1 With respect to the first element that Plaintiff must successfully plead, the purported 2 protected speech activity that he appears to reference is the CDCR 22 grievance form he 3 submitted to Rutledge and Plaintiff’s subsequent conversation with Rutledge for failing to 4 respond. (Doc. No. 1 at 27; Doc. No. 24 at 13-14.) “It is well-established that, among the 5 rights they retain, prisoners have a First Amendment right to file prison grievances. 6 Retaliation against prisoners for their exercise of this right is itself a constitutional 7 violation, and prohibited as a matter of clearly established law.” Brodheim v. Cry, 584 8 F.3d 1262, 1269 (9th Cir. 2009); see also Watison, 668 F.3d at 1114. “The filing of an 9 inmate grievance is protected conduct.” Watison, 668 F.3d at 1114 (citation omitted); see 10 also Shepard v. Quillen, 840 F.3d 686, 688 (9th Cir. 2016) (“We have long recognized that 11 corrections officer may not retaliate against a prisoner for exercising his First Amendment 12 right to report staff misconduct.”) Plaintiff’s submitting the CDCR 22 grievance to 13 Rutledge was protected activity. Moreover, Plaintiff’s subsequent follow-up conversation 14 with Rutledge was related to the initial grievance and is thus inextricably intertwined with 15 that initial protected conduct. Accordingly, Plaintiff has sufficiently alleged he engaged in 16 protected conduct that was allegedly retaliated against when he gave Rutledge the CDCR 17 22 form and later followed-up about it.4 18 Turning to the second element, although cell searches are a routine part of prison 19 life, see Hudson v. Palmer, 468 U.S. 517, 526-27 (1984), a cell search may nonetheless 20 constitute an adverse action, as such an action need not be an independent constitutional 21 violation, see Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). An otherwise permitted 22 action can be the basis for a retaliation claim if performed with a retaliatory motive and 23 24 25 26 27 28                                                         4 Whether Jaime searching Plaintiff’s cell because of that protected conduct is a separate and distinct question that that Court will address below. For now, Plaintiff sufficiently satisfies the first element if Jaime retaliated against him for filing the grievance against Rutledge. 11 14-CV-1923-WQH(WVG) 1 lacking a legitimate correctional goal. See Watison, 668 F.3d at 1115 (holding that an 2 inmate had sufficiently alleged that an officer took an adverse action against him when the 3 officer filed a disciplinary charge against that inmate which led to the inmate being placed 4 in administrative segregation). Here, Plaintiff alleges his cell was searched as a direct 5 result of following up on his grievance against Rutledge. (Doc. No. 1 at 14, ¶ 18 (“[After 6 Plaintiff asked about the CDCR 22] Rutledge threatened [P]laintiff to search his cell and 7 threated to take the hat he was wearing.”); Watkins Decl., id. at 81 (“Rutledge threatened 8 that he would go search Cejas’ cell . . . .”); Roettgen Decl., id. at 82 (“Rutledge further 9 stated he would tear-up Cejas’ cell . . . .”).) Plaintiff also alleges that he was specifically 10 targeted for a cell search. (See id. at 26 (alleging Defendants “[o]nly searched [P]laintiff[’s] 11 cell and property area but left the other occupant in the cell inmate Shields’ property 12 untouched.”).) Because Plaintiff alleges he was targeted for an otherwise routine cell 13 search in retaliation for engaging in protected conduct, he has sufficiently pled that 14 “adverse action” was taken against him. 15 However, Plaintiff has not sufficiently pled the third element of a retaliation claim 16 that there was a causal connection between Defendant Jaime searching his cell and the 17 grievance against Rutledge. Although the cell search occurred shortly after Plaintiff’s 18 conversation with Rutledge, Plaintiff does not allege that Jaime was present during 19 Plaintiff’s earlier conversation with Rutledge, that Rutledge apprised Jaime of the content 20 of that conversation, or that Jaime otherwise knew about the CDCR 22 Plaintiff had 21 submitted to Rutledge. Unlike in Watison, where the officer who took the alleged adverse 22 action had first-hand knowledge of the complaints the prisoner filed against her, there is 23 no indication or allegation in this case that Jaime—a third party to the dispute between 24 Plaintiff and Rutledge—ever had knowledge of the grievance or the confrontation that 25 26 27 28 12 14-CV-1923-WQH(WVG) 1 preceded the cell search.5 Jaime’s knowledge of the grievance is, of course, critical because 2 he could not have searched Plaintiff’s cell in retaliation for—or because of—something 3 about which he had no knowledge. Wood v. Yordy, 753 F.3d 899, 904-05 (9th Cir. 2014) 4 (affirming grant of summary judgment where no evidence that defendants knew about 5 plaintiff’s prior lawsuit, or that defendants’ disparaging remarks were made in reference to 6 prior lawsuit); Pratt, 65 F.3d at 808 (concluding that the prisoner failed to establish a 7 retaliation claim when no evidence that prison officials knew of the conduct giving rise to 8 the alleged retaliatory action); see also Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 9 2005) (holding that a prisoner alleging retaliation must show, inter alia, that a state actor 10 took adverse action against him because of the prisoner’s protected conduct). Because 11 Plaintiff does not allege that Jaime knew about the grievance—and no such reasonable 12 inference can be drawn from the Complaint’s allegations—he has failed to properly allege 13 that Jaime took an adverse action (cell search) because of the protected activity (grievance 14 against Rutledge). Accordingly, Plaintiff has failed to satisfy the third element of a First 15 Amendment retaliation claim against Jaime. 16 Fourth, notwithstanding the above discussion and assuming for the sake of argument 17 that Plaintiff has satisfied the third element of a retaliation claim, he has sufficiently pled 18 that Jaime’s actions would chill future First Amendment activity. The inquiry here is not 19 whether Plaintiff was actually chilled from engaging in protected activity but whether “the 20 adverse action at issue would chill or silence a person of ordinary firmness from future 21 22 23 24 25 26 27 28                                                         5 Plaintiff’s own witnesses do not place Jaime at the scene of Plaintiff’s confrontation with Rutledge. (See Complaint, Doc. No. 1 at 80-82.) Inmate John Roettgen declares the confrontation occurred “in line at the gate for laundry” and identifies only Officer M. Carter as an officer who witnessed the confrontation and heard the subject matter of the discussion. (Id. at 82.) Inmate Chad Witkins identifies Officer M. Carter, Officer R. E. Garay, and Chief Job Steward. (Id. at 80-81.) Neither witness identifies Defendant Jaime as being present to witness the confrontation. 13 14-CV-1923-WQH(WVG) 1 First Amendment activities.” Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009) 2 (internal quotations and citations omitted) (emphasis added). 3 standard.6 Id. Moreover, although Plaintiff has not expressly alleged that the alleged 4 retaliatory search of his cell has a chilling effect on inmates’ filing grievances against 5 officers, his allegations of harm may be sufficient. Wilson v. Nesbeth, 341 Fed. Appx. 291, 6 293 (9th Cir. 2009) (unpublished) (“This court has previously concluded that allegations 7 of harm were sufficient to ground a First Amendment retaliation claim without discussing 8 whether that harm had a chilling effect.”) (citing Pratt, 65 F.3d at 807-08); Valandingham 9 v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989)). This is an objective 10 Here, the harm Plaintiff alleges he suffered from pursuing his CDCR 22 grievance 11 against Rutledge was the retaliatory search of his cell and confiscation of his possessions. 12 In light of these allegations, it is likely that an inmate of reasonable firmness in Plaintiff’s 13 position would hesitate to pursue grievances against corrections officers in general—or 14 Rutledge and Jaime specifically—if he was faced with a possibility of a search of his cell7 15 and property confiscation for doing so. This Court is not hard-pressed to believe that an 16 inmate at the mercy of guards’ retaliatory whims would be chilled from exercising his First 17 Amendment right to file a grievance under such circumstances. Accord Packnett v. Wingo, 18 471 Fed. Appx. 577, 578 (9th Cir. Feb. 21, 2012) (unpublished) (“Dismissal of [the] 19 retaliation claim against defendants in their individual capacity was . . . improper because 20 21                                                         22 6 23 24 25 26 27 28 Because this is an objective standard, it is immaterial whether Plaintiff continued to file grievances or filed the instant lawsuit despite the possibility that he might be subject to another allegedly retaliatory cell search. See Brodheim, 584 F.3d at 1271 (reversing dismissal where district court focused on whether the inmate plaintiff was actually chilled); Rhodes, 408 F.3d at 568-69 (rejecting argument that inmate did not state a claim for relief because he had been able to file inmate grievances and a lawsuit). 7 Which is his personal space to the extent that one can have personal space in prison. 14 14-CV-1923-WQH(WVG) 1 [the plaintiff] alleged that his First Amendment rights were chilled when defendants 2 searched his cell, seized his property, and otherwise retaliated against him for filing 3 grievances.”); Percelle v. Pearson, 2016 U.S. Dist. LEXIS 177626, at *5-6 (N.D. Cal. Dec. 4 21, 2016) (unpublished) (finding chilling effect possible where “a person of ordinary 5 firmness may hesitate to pursue his case against CDCR when, shortly after obtaining an 6 entry of default in that case, CDCR officers search his cell and open an investigation into 7 whether he is a gang member.”); Haddix v. Burris, 2015 U.S. Dist. LEXIS 29281, at *21- 8 22 (N.D. Cal. Mar. 10, 2015) (unpublished) (finding retaliatory cell searches could satisfy 9 the required chilling effect element of a First Amendment retaliation claim); Davis v. 10 Runnels, 2013 U.S. Dist. LEXIS 106000, at *18-19 (E.D. Cal. July 29, 2013) (unpublished) 11 (same). Thus, assuming for the sake of argument that Plaintiff satisfied the third element, 12 he has also satisfied the fourth element of his retaliation claim. 13 Finally, Plaintiff must allege that Jaime’s search of his cell did not advance 14 legitimate penological interests. Indeed, prison officials have legitimate penological 15 interests in conducting cell searches. See Hudson v. Palmer, 468 U.S. 517, 526-27 (1984). 16 Although Plaintiff could successfully satisfy this element “by alleging, in addition to a 17 retaliatory motive, that the defendant’s actions were arbitrary and capricious . . . or that 18 they were unnecessary to the maintenance of order in the institution,” Watison, 668 F.2d 19 at 1114-15, he has not made any such allegations against Jaime—and he cannot do so 20 under the factual allegations as they currently stand. 21 While it could be inferred that Rutledge searching the cell or ordering the cell search 22 was arbitrary, capricious, and served no legitimate penological purpose because it was in 23 retaliation for Plaintiff pressing him to answer the CDCR 22, the Court cannot draw a 24 reasonable inference that Jaime’s searching the cell pursuant to Rutledge’s order was the 25 same. That is because without evidence or allegations that Jaime knew about Plaintiff’s 26 grievance and that his search of the cell was ordered because Plaintiff confronted Rutledge 27 28 15 14-CV-1923-WQH(WVG) 1 about the unanswered grievance, it is logical to conclude that from Jaime’s perspective, he 2 was simply following a lawful order to search an inmate’s cell. And because cell searches 3 generally advance legitimate penological interests, the Complaint currently alleges nothing 4 more than Jaime engaging in an activity that advanced a legitimate penological interest. 5 Accordingly, Plaintiff has failed to satisfy the fifth element of the retaliation claim. 6 Based on the foregoing, Plaintiff has not sufficiently pled that Defendant Jaime 7 retaliated against him for exercising his First Amendment right to pursue a grievance 8 against Defendant Rutledge. 9 B. Claims Against Defendant Paramo 10 Plaintiff asserts that Defendant Paramo, the prison’s warden, violated his First and 11 Fourteenth Amendment rights because he was the supervisor of the Appeals Coordinators 12 who repeatedly screened out Plaintiff’s complaints. Defendants argue that Paramo must 13 be dismissed from this suit because supervisors cannot be held liable under 42 U.S.C. 14 § 1983. 15 Section 1983 “is not itself a source of substantive rights, but a method for vindicating 16 federal rights elsewhere conferred.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). 17 Rather, § 1983 imposes two essential proof requirements upon a plaintiff: (1) that a person 18 acting under color of state law committed the conduct at issue and (2) that the conduct 19 deprived the claimant of some right protected by the Constitution of the United States. See 20 42 U.S.C. § 1983; Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds 21 by Daniel v. Williams, 474 U.S. 327, 330-31 (1986). Here, there appears to be no dispute 22 that Defendants Olson and Ramirez acted under the color of state law in their official 23 capacities as Appeals Coordinators at the Donovan Correctional Facility. Consequently, 24 Plaintiff’s federal claims are contingent upon the second inquiry—namely, whether they 25 deprived Plaintiff “of any rights, privileges, or immunities secured by the Constitution and 26 laws” of the United States. 42 U.S.C. § 1983. 27 28 16 14-CV-1923-WQH(WVG) 1 1. Plaintiff has not alleged sufficient facts to state a claim for respondeat superior liability against Defendant Paramo. 2 3 Plaintiff claims Paramo is liable because he “prevent[ed] Plaintiff from obtaining 4 relief and from recovering his Buddhist pendant or Buddhist altar cloth because [P]aramo 5 hired [A]ppeals [C]oordinator[s] R. Olson and J. Ramirez, [sic] Paramo is their boss.” 6 (Doc. No. 1 at 28.) Essentially, Plaintiff is asserting a theory of respondeat superior 7 liability against Paramo, as Plaintiff confirms in his Opposition.8 (Doc. No. 24 at 3-4.) 8 Paramo does not contest that he is the supervisor of the Appeals Coordinators, and the 9 Court will so presume for purposes of this analysis. (Doc. No. 17 at 3-4.) 10 Contrary to Defendants’ assertion, a defendant may be held liable in his individual 11 capacity as a supervisor under § 1983 “‘if there exists either (1) his or her personal 12 involvement in the constitutional deprivation, or (2) a sufficient causal connection between 13 the supervisor’s wrongful conduct and the constitutional violation.’” Starr v. Baca, 652 14 F.3d 1202, 1207 (9th Cir. 2011) (quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 15 1989)). Thus, plaintiffs may hold supervisors “individually liable in § 1983 suits when 16 17                                                         18 8 19 20 21 22 23 24 25 26 27 28 In his Complaint, Plaintiff asserts that he is suing Defendant Paramo in his individual and official capacities, (Doc. No. 1 at 2), but only discusses holding Paramo liable in his individual capacity in his Opposition, (Doc. No. 24 at 3-7). Officials can be held liable under § 1983 in both their individual and official capacities. Larez v. City of Los Angeles, 946 F.2d 630, 645 (9th Cir. 1991). However, official liability “must be attributable to official policy or custom.” Id. Consequently, supervisors may be found liable in their official capacities if “‘policy or custom’ . . . played a part in the violation of federal law.” Id. Plaintiff asserts that Paramo “is also policy maker for RJDP [Richard J. Donovan Prison], and establishes policies or written regulations that result in violations of constitutionally established civil rights.” (Doc. No. 1 at 9.) However, Plaintiff does not pursue this argument in his Opposition and does not identify an unconstitutional policy in his Complaint or Opposition that Paramo is enforcing. Thus, this Court only will address Plaintiff’s contentions that Paramo is individually liable under a theory of respondeat superior. 17 14-CV-1923-WQH(WVG) 1 culpable action, or inaction, is directly attributed to them. [The Ninth Circuit] ha[s] never 2 required a plaintiff to allege that a supervisor was physically present when the injury 3 occurred.” Id. at 1205 (emphasis added). Supervisors do not need to be “directly and 4 personally involved in the same way as are the individual officers who are on the scene 5 inflicting the constitutional injury.” Id. (quoting Larez, 946 F.2d at 645). Supervisors may 6 be held liable for their “own culpable action or inaction in the training, supervision, or 7 control of his subordinates,” “his acquiescence in the constitutional deprivations of which 8 the complaint is made,” or “conduct that showed a reckless or callous indifference to the 9 rights of others.” Id. at 1205-06 (quoting Larez, 946 F.2d at 646). 10 A prisoner must show that the supervisor’s breach of a duty to the prisoner was the 11 proximate cause of the prisoner’s injury. Id. at 1207. The Ninth Circuit has held that 12 “acquiescence or culpable indifference” may sufficiently evidence a supervisor’s personal 13 role in the alleged violations. Id. at 1208 (quoting Menotti v. City of Seattle, 409 F.3d 1113, 14 1149 (9th Cir. 2005)). Alternatively, if the supervisor (1) “set[s] in motion a series of acts 15 by others” or (2) “knowingly refuse[s] to terminate a series of acts by others” that the 16 supervisor “knew or reasonably should have known would cause others to inflict a 17 constitutional injury,” then a plaintiff has established the requisite causal connection. Id. 18 at 1207-08 (quoting Dubner v. City and Cnty. of San Francisco, 266 F.3d 959, 968 (9th 19 Cir. 2001)). 20 Here, Plaintiff’s chief contention is that Defendant Paramo is individually liable in 21 his capacity as supervisor because he is the “boss” of the Appeals Coordinators who 22 improperly screened out Plaintiff’s various complaints. (Doc. No. 1 at 28.) Specifically, 23 “Defendant Paramo set in motion a series of acts by others, [and] knowingly refused to 24 terminate the series of acts by others.” (Doc. No. 24 at 3.) Plaintiff alleges that Paramo 25 “personally participated in the deprivation of the First Amendment denial to [sic] access 26 the courts when he failed to act by reviewing the Plaintiff’s staff misconduct/citizen 27 28 18 14-CV-1923-WQH(WVG) 1 complaints of Defendants R. Olson and J. Ramirez.” (Doc. No. 24 at 5.) Further, Plaintiff 2 alleges that Paramo “knowingly” refused to intervene to prevent Defendants Olson and 3 Ramirez from violating Plaintiff’s First Amendment right of access to the courts, which 4 prevented Plaintiff from “pursu[ing] the necessary sequence of appeals, and exhaust[ing] 5 administrative remedies.” (Id.) 6 Reasonably construing the above allegations, Plaintiff’s claim against Defendant 7 Paramo is dependent upon Defendants Olson and Ramirez violating his First Amendment 8 rights by denying him access to the courts. Thus, the Court must determine whether 9 Plaintiff has alleged an underlying constitutional violation by Olson and Ramirez such that 10 Paramo’s culpable failure to intervene would be grounds to hold him liable in his role as 11 their supervisor. 12 13 a. Plaintiff has not alleged sufficient facts to state a claim for violation of his First Amendment right of access to the courts. 14 Prisoners have a constitutional right of access to the courts. Bounds v. Smith, 430 15 U.S. 817, 821 (1977). Inmates alleging violations of their right of access to the courts must 16 show actual injury. Lewis v. Casey, 518 U.S. 343, 351-52 (1996); Keenan v. Hall, 83 F.3d 17 1083, 1094 (9th Cir. 1996) (“[T]o state an access to the courts claim that concerns neither 18 the inadequacies of the law library nor the lack of assistance of a person trained in law, an 19 inmate must demonstrate ‘actual injury.’”); see, e.g., Hebbe v. Pliler, 627 F.3d 338, 342- 20 43 (9th Cir. 2010) (holding that prisoner had stated claim for denial of access to the court 21 where he alleged that he was denied access to the prison’s law library during thirty-day 22 lockdown, causing him to miss court deadline). The loss or rejection of a claim is an 23 example of an actual injury. Lewis, 518 U.S. at 351. 24 The right of access to the courts is satisfied where the state enables the prisoner to 25 “bring[] contemplated challenges to sentences or conditions of confinement before the 26 courts.” Id. at 356. In fact, “[i]nvocation of the judicial process indicates that the prison 27 28 19 14-CV-1923-WQH(WVG) 1 has not infringed [the prisoner’s] First Amendment right to petition the government for a 2 redress of grievances.” Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996). Further, 3 “the district court assumes that a prisoner’s claims have been exhausted when his 4 grievances were not processed within prescribed time limits.” Mahogany v. Miller, 252 5 Fed. Appx. 593, 594 (5th Cir. Oct. 24, 2007) (unpublished); see also Abreu v. Ramirez, 6 284 F. Supp. 2d 1250, 1258-59 (C.D. Cal. 2003) (“Plaintiff’s allegations that prison 7 officials refused to answer his grievances are not enough, by themselves, to sustain a claim 8 of denial of access to the courts.”); Riley v. Roach, 572 Fed. Appx. 504, 507 (9th Cir. May 9 9, 2014) (unpublished) (“‘[W]hen the claim underlying the administrative grievance 10 involves a constitutional right, the prisoner’s right to petition the government for redress is 11 the right of access to the courts, which is not compromised by the prison’s refusal to 12 entertain his grievance.’”) (quoting Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991). 13 Here, Plaintiff has not alleged that any of the Defendants interfered with his ability 14 to file the instant suit. He only has alleged that Defendants Olson and Ramirez interfered 15 with his use of the internal prison grievance procedures, which impaired his ability to 16 exhaust administrative remedies. However, such impairment does not constitute an actual 17 injury because Defendants’ alleged interference did not prevent Plaintiff from bringing this 18 suit. 19 administrative remedies, Defendants’ alleged failure to process his internal grievances in a 20 timely manner likely would have led the Court to conclude that Plaintiff effectively had 21 exhausted his administrative remedies. Thus, even construing the facts in the light most 22 favorable to Plaintiff, he has not alleged any facts indicating that he actually has been 23 injured by Defendants Olson’s and Ramirez’s alleged failure to process his internal 24 grievances and, thus, has not stated a First Amendment claim for denial of access to the 25 courts. Further, had Defendants challenged Plaintiff’s suit for failure to exhaust 26 27 28 20 14-CV-1923-WQH(WVG) 1 Related to the First Amendment claim is the Fourteenth Amendment denial of due 2 process claim. To state a claim for denial of due process under the Fourteenth Amendment, 3 a prisoner must demonstrate that the defendant’s alleged violation deprived him of a life, 4 liberty, or property interest. See Mendoza v. Blodgett, 960 F.2d 1425, 1428 (9th Cir. 1992); 5 Shinault v. Hawks, 782 F.3d 1053, 1057 (9th Cir. 2015). “[A] liberty interest may arise 6 from either of two sources: the due process clause or state law.” Mendoza, 960 F.2d at 7 1428. An individual must have “a legitimate claim of entitlement” to a liberty interest for 8 it to be a protectable right. Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 9 U.S. 1, 7 (1979). 10 Prisoners do not have a “legitimate claim of entitlement to a grievance procedure.” 11 Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); see also Bingham v. Thomas, 654 F.3d 12 1171, 1177 (11th Cir. 2011) (“[A]n inmate has no constitutionally-protected liberty interest 13 in access to [a prison’s grievance] procedure.”); Ouzts v. Cummins, 825 F.2d 1276, 1278 14 (8th Cir. 1987) (“Prison officials’ failure to respond to a grievance is not actionable under 15 § 1983.”). Thus, even if Plaintiff had alleged a violation of his right to procedural due 16 process under the Fourteenth Amendment, he still would not have stated a claim against 17 Paramo on the ground that Olson and Ramirez failed to comply with the prison’s grievance 18 procedures. No such liberty interest exists. 19 2. Conclusion 20 Returning to Plaintiff’s respondeat superior claim against Defendant Paramo, as 21 discussed above, Plaintiff has not alleged the “underlying constitutional violation” required 22 to state a claim for supervisory liability under § 1983. Because Plaintiff fails to state a 23 claim against Olson and Ramirez, it follows, a fortiori, that he cannot pursue this action 24 against Defendant Paramo under a respondeat superior theory of liability. There simply 25 is no underlying constitutional violation for which Paramo can be liable as a supervisor. 26 27 28 21 14-CV-1923-WQH(WVG) 1 V. CONCLUSION 2 For the reasons set forth herein, it is RECOMMENDED that Defendant’s Motion to 3 Dismiss be GRANTED as to the Plaintiff’s claims for respondeat superior against 4 Defendant Paramo and for retaliation against Defendant Jaime. 5 Recommendation will be submitted to the United States District Judge assigned to this 6 case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(1988) and Federal Rule of Civil 7 Procedure 72(b). This Report and 8 IT IS ORDERED that no later than May 5, 2017, any party to this action may file 9 written objections with the Court and serve a copy on all parties. The document shall be 10 captioned “Objections to Report and Recommendation.” 11 IT IS FURTHER ORDERED that any reply to the objections shall be filed with the 12 Court and served on all parties no later than May 19, 2017. The parties are advised that 13 failure to file objections within the specified time may waive the right to raise those 14 objections on appeal of the Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 IT IS SO ORDERED. 16 DATED: March 28, 2017 17 18 19 20 21 22 23 24 25 26 27 28 22 14-CV-1923-WQH(WVG)

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