Dragasits v. Yu, et al

Filing 58

REPORT AND RECOMMENDATION. Court recommends that Plaintiff's First Amendment claim against Defendant Yu be dismissed with prejudice. Court recommends that the District Court issue an an Order: 1.) accepting the Report and Recommendation, and 2. ) granting Defendant Yu's 51 MOTION to Dismiss Plaintiff's Second Amended Complaint. Objections to R&R due by 2/12/2019. Replies due by 2/22/2019. Signed by Magistrate Judge Jill L. Burkhardt on 1/15/2019. (All non-registered users served via U.S. Mail Service) (jah)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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STEPHEN DRAGASITS,

Case No.: 16-cv-01998-BAS-JLB
Plaintiff,

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v.

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REPORT AND
RECOMMENDATION FOR ORDER
GRANTING DEFENDANT’S
MOTION TO DISMISS

DR. JIN YU,
Defendant.

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[ECF No. 51]

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Before the Court is Defendant Dr. Jin Yu’s Motion to Dismiss Plaintiff Stephen

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Dragasits’ Second Amended Complaint brought under the Civil Rights Act, 42 U.S.C.

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§ 1983. (ECF No. 51). The Court submits this Report and Recommendation to United

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States District Judge Cynthia Bashant pursuant to 28 U.S.C. § 636(b)(1) and Local Civil

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Rule 72.1 of the Local Rules of Practice for the United States District Court for the

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Southern District of California. After a thorough review of Plaintiff’s Second Amended

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Complaint, Defendant’s motion, Plaintiff’s opposition, and all supporting documents, and

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for the reasons discussed below, the Court RECOMMENDS that the District Court

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GRANT Defendant Yu’s Motion to Dismiss (ECF No. 51) and dismiss Plaintiff’s Second

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Amended Complaint.

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I. PROCEDURAL BACKGROUND

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Plaintiff Stephen Dragasits, a state prisoner proceeding pro se and in forma pauperis,

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initiated the present suit by filing a complaint in this Court on August 8, 2016. (ECF No.

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1.) Plaintiff alleged that the State of California, the Richard J. Donovan Correctional

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Facility (“RJDCF”), several RJDCF health care officials, and a Deputy Director of the

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California Department of Corrections and Rehabilitation’s Health Care Services Appeals

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Branch denied his Eighth Amendment, Fourteenth Amendment, and California state law

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rights to proper medical treatment and due process while he was incarcerated at RJDCF.

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(See id. at 27–39.)1

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On November 15, 2016, the Honorable Roger T. Benitez sua sponte dismissed

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Plaintiff’s claims against Defendants the State of California, RJDCF, and individual health

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care officials Gines, Guldseth, Kelso, and Van Buren. (ECF No. 5 at 10.) In addition,

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Judge Benitez sua sponte dismissed Plaintiff’s Fourteenth Amendment due process claim

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against all named Defendants. (Id.) Remaining Defendants Dr. Jin Yu, Dr. R. Walker, Dr.

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S. Roberts, Dr. M. Glynn, and California Department of Corrections and Rehabilitation

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(“CDCR”) Deputy Director J. Lewis filed a motion to dismiss the remaining claims in

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Plaintiff’s complaint. (ECF No. 12.)

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On September 13, 2017, Judge Benitez adopted this Court’s Report and

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Recommendation and dismissed all of Plaintiff’s claims against Defendants. (ECF No.

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26.) The Court dismissed without leave to amend Plaintiff’s Eighth Amendment claims

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against Defendants Walker, Roberts, Glynn, and Lewis relating to their denial of his health

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care appeals. (Id. at 5.) The Court also dismissed without leave to amend Plaintiff’s Eighth

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Amendment claim against Defendant Roberts for deliberate indifference under a theory of

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supervisory liability. (Id.) Plaintiff was granted leave to amend his Eighth Amendment

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Citations to documents filed on the public docket of this action refer to the pagination assigned by the
CM/ECF system.
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claims for deliberate indifference against Defendants Yu, Walker, Glynn, and Lewis and

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his state law claims for medical negligence and malpractice. (Id. at 6.)

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On October 10, 2017, Plaintiff filed a First Amended Complaint (“FAC”). (ECF

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No. 27.) In his FAC, Plaintiff reasserted his Eighth Amendment and state law claims

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against Defendants Yu, Walker, Glynn, and Lewis. (Id.) Plaintiff also reasserted his

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Eighth Amendment claim against Defendant Roberts, which Judge Benitez previously

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dismissed with prejudice. (Id.) On November 7, 2017, Defendants filed a motion to

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dismiss Plaintiff’s FAC. (ECF No. 36.)

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On July 27, 2018, Judge Bashant adopted this Court’s Report and Recommendation

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and dismissed all of Plaintiff’s claims against Defendants. (ECF No. 47.) The Court

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dismissed without leave to amend Plaintiff’s claims against Defendants Walker, Glynn,

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and Lewis. (Id. at 6.) The Court dismissed with leave to amend Plaintiff’s Eighth

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Amendment claims against Defendant Yu, permitting Plaintiff a second and final

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opportunity to amend his allegations regarding Defendant Yu. (Id.)

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On September 4, 2018, Plaintiff filed a Second Amended Complaint (“SAC”). (ECF

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No. 50.) In his SAC, Plaintiff reasserts his Eighth Amendment claim and two state law

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claims against Defendant Yu and adds a previously unasserted First Amendment claim.

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(Id. at 28, 31, 44, 48.) On September 24, 2018, Defendant Yu moved to dismiss Plaintiff’s

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SAC. (ECF No. 51.) Plaintiff filed an opposition more than three months later on

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December 26, 2018.2 (ECF No. 56.) Defendants filed a reply on December 27, 2018.

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(ECF No. 57.)

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On October 25, 2018, the Court granted in part Plaintiff’s ex parte motion for an extension of time to
file his opposition. (ECF No. 54.) The Court’s Order extended the deadline for Plaintiff to file an
opposition by thirty days to November 23, 2018, and cautioned Plaintiff “that a failure to file an opposition
by the deadline ordered may constitute a consent to the granting of the motion” under Civil Local Rule
7.1(f)(2)(b). (Id. at 1–2.) Although Plaintiff dated his opposition November 20, 2018, the Court did not
receive his opposition until December 20, 2018, nearly a month after the court-ordered deadline. (See
ECF No. 56 at 2, 23.)
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II. FACTUAL BACKGROUND3

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Plaintiff’s SAC largely contains the same factual allegations as his original

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complaint and FAC. A more detailed recitation of facts as to Plaintiff’s Eighth Amendment

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claim was set forth in the two Report and Recommendations issued on the first and second

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motions to dismiss and will not be repeated here. (See ECF Nos. 21 at 2–11; 46 at 3–5.)

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A summary of the most relevant facts as to Plaintiff’s First Amendment retaliation claim

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is provided here.

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Plaintiff is a state prisoner confined at RJDCF in San Diego, California. (ECF No.

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50 at 1.) Prior to arriving at RJDCF, Plaintiff was temporarily confined at the California

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Institution for Men. (Id. at 30–31.) He was transferred to RJDCF on or around December

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2, 2013. (Id. at 38.) Plaintiff alleges that he suffers from several arthritic ailments and

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degenerative diseases that involve chronic pain in his neck, back, elbows, knees, and feet.

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(See id. at 6, 17–24.) In addition, Plaintiff alleges that he has a history of syncope and

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dizziness dating back to 2012. (See id.) Plaintiff asserts that on September 13, 2013,

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medical providers at the California Institution for Men issued him a lower bunk chrono for

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his medical conditions. (Id. at 16; 209.) The crux of the instant case is that Plaintiff did

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not have a lower bunk chrono at RJDCF for seven months during 2015. (Id. at 46.)

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Defendant Yu was Plaintiff’s primary care physician at RJDCF and saw Plaintiff

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approximately eight times between February 10, 2015, and August 21, 2015. (See id. at

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28, 80, 109–19.) Plaintiff’s first two appointments with Defendant Yu were follow-up

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visits on February 10, 2015, and April 21, 2015. (Id. at 117, 119.) It appears that it was at

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Plaintiff’s third appointment with Defendant Yu, on May 13, 2015, that Plaintiff first asked

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Defendant Yu to renew his lower bunk chrono, which Plaintiff alleges would expire on

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The allegations contained in Plaintiff’s SAC are accepted as true for purposes of assessing Defendant
Yu’s Motion to Dismiss only. In addition, this Report and Recommendation does not provide a summary
of all of the facts presented in the SAC but only those that are relevant to Plaintiff’s claims against
Defendant Yu.
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June 17, 2015.4 (Id. at 17, 115.) After physically examining Plaintiff and reviewing his

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medical records, Defendant Yu found there was no medical indication that Plaintiff’s

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condition warranted a lower bunk or double mattress and declined to renew Plaintiff’s

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chronos.5 (Id.) However, Defendant Yu ordered x-rays of Plaintiff’s neck and lumbar

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spine “to better understand the medical issues” and noted that he “may reevaluate

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consideration” for the requested chronos after reviewing the x-ray results. (Id.) On or

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around the same day, Plaintiff filed an administrative CDCR 602 Health Care Appeal (“602

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appeal”) challenging Defendant Yu’s decision not to renew Plaintiff’s lower bunk and

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double mattress chronos. (Id. at 61.)

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On June 5, 2015, Defendant Yu interviewed Plaintiff in response to the 602 appeal,

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and Plaintiff again requested a renewal of his lower bunk chrono. (Id. at 61, 111.)

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Defendant Yu’s medical notes indicate that on May 29, 2015, he had observed Plaintiff

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playing basketball. (Id. at 111.) His notes also indicate that he discussed Plaintiff’s x-ray

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results with Plaintiff, and then physically examined Plaintiff.6

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observation of Plaintiff playing basketball, Plaintiff’s x-ray results, and his examination of

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Plaintiff, Defendant Yu again denied Plaintiff’s request to renew his lower bunk chrono,

(Id.)

Based on his

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Plaintiff alleges that on June 17, 2014, Dr. Mohan Garikaparthi “documented an Order on a CDC 7221”
that updated Plaintiff’s lower bunk and double mattress chronos to have a June 17, 2015 expiration date.
(ECF No. 50 at 17.) Plaintiff does not attach the alleged order. Plaintiff does attach Dr. Garikaparthi’s
notes from a June 17, 2014 appointment, but Dr. Garikaparthi noted that Plaintiff asked only for an updated
double mattress chrono, and not a lower bunk chrono. (Id. at 371.) Further, Defendant Yu’s notes from
Plaintiff’s April 21, 2015 appointment indicate that, as of April 21, 2015, the only chrono recorded in the
“entire [c]hrono section” for Plaintiff was a lower bunk chrono dated September 13, 2013. (Id. at 117.)
Whether Dr. Garikaparthi ever updated Plaintiff’s lower bunk chrono, and if so, whether it had an
expiration date of June 17, 2015, is unclear from the records before the Court.
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Defendant Yu found that Plaintiff was not in acute distress; could stand and walk erect and without
limping; could get in and out of the examination chair multiple times without difficulty; could turn his
body, reach for objects, and bend without difficulty; showed no signs of tenderness in his back; and
showed no atrophy in his lower extremities. (ECF No. 50 at 115.) Defendant Yu also noted that the
cardiology department had not observed an arrhythmia after monitoring Plaintiff’s heart for over two years
and Plaintiff had not suffered a syncope episode since he entered the RJDCF system. (Id.)
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Defendant Yu noted that Plaintiff did not show signs of atrophy, was quick to get in and out of the
examination chair, and was walking erect and normally, and was not in acute distress. (ECF No. 50 at
111.)
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explaining to Plaintiff “that there was no indication at this time” that his medical needs

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warranted a lower bunk. (Id.) Defendant Yu noted that he would “remind [Plaintiff] that

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he can appeal further.” (Id.) He also offered to prescribe Plaintiff pain medication and

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told Plaintiff “he can come back any time for medication.” (Id.) That same day, after

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Plaintiff’s appointment,7 Defendant Yu filed a CDCR 7410 Comprehensive

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Accommodation Chrono (“7410 chrono”) updating Plaintiff’s housing accommodations to

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“Unrestricted” and “Permanent.” (Id. at 214.) Plaintiff alleges that this 7410 chrono “took

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away” his lower bunk chrono before its June 17, 2015 expiration date. (Id. at 14.)

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On June 9, 2015, Plaintiff filed a second 602 appeal challenging Defendant Yu’s

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decision not to renew his lower bunk and mattress chronos. (Id. at 70.) On the form,

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Plaintiff stated that he believed Defendant Yu “spited” him because of his first 602 appeal.

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(Id.)

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On June 22, 2015, Defendant Yu interviewed Plaintiff in response to his second 602

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appeal, and Plaintiff again requested that Defendant Yu renew his lower bunk chrono. (Id.

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at 70, 113.) Defendant Yu physically examined Plaintiff and still saw no need for a lower

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bunk.8 (Id. at 113.) Plaintiff also complained of left knee pain. (Id.) Despite noting that

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Plaintiff’s left knee did not show any “laxity, tenderness, or swelling,” Defendant Yu

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ordered x-rays of Plaintiff’s knee to determine if there were any abnormalities. (Id.)

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On July 20, 2015, Defendant Yu saw Plaintiff again, and after physically examining

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Plaintiff, once again found that a lower bunk and double mattress were not medically

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necessary.9 (Id. at 109.) Defendant Yu’s notes indicate that he told Plaintiff that his lower

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The timestamp on Defendant Yu’s June 5, 2015 medical notes is 9:28 AM, and the timestamp on the
June 5, 2015 7410 chrono is 9:37, presumably AM. (Id. at 111, 214.)
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Defendant Yu observed Plaintiff walk erect, quickly, and without limping, and observed Plaintiff get in
and out of a chair quickly and without difficulty. (ECF No. 50 at 113.) Defendant Yu noted that he did
not see any atrophy and that Plaintiff’s “upper extremity” was “very muscular.” (Id.)
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Plaintiff saw Defendant Yu for, among other things, multiple complaints of pain. (ECF No. 50 at 109.)
Plaintiff complained that his left knee still hurt and that he could hear it crack. (Id.) Defendant Yu
examined Plaintiff’s knee and noted that there was no tenderness or swelling, that Plaintiff came into the
clinic erect and not limping, that Plaintiff was able to sit on a chair slowly, and that Plaintiff hopped onto
the examination table without difficulty. (Id.)
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bunk was denied “because he was playing basketball and I did not see any deficit at the

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time.” (Id.) He also noted that he told Plaintiff to wait for the determination of his appeals,

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which “would maybe grant his request.” (Id.) Defendant Yu also ordered x-rays of

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Plaintiff’s elbow and referred him to a physical therapist. (Id.)

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Plaintiff alleges that on August 3, 2015, he fell from his upper bunk for the first time.

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(Id. at 28–29.) Plaintiff saw Defendant Yu again on August 20, 2015. (Id. at 28.) Nothing

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in Defendant Yu’s detailed medical note indicates Plaintiff mentioned the fall (ECF No. 1

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at 281–82),10 and Plaintiff does not allege that he informed Defendant Yu of the alleged

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fall. Defendant Yu noted that he had seen Plaintiff playing basketball, and once again

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found that Plaintiff’s medical condition did not merit a lower bunk. (Id.) Plaintiff

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communicated to Defendant Yu that he was “building up [his] case” for a lower bunk. (Id.)

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The next day, on August 21, 2015, Plaintiff alleges that he fell for a second time

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while trying to climb onto his upper bunk. (ECF No. 50 at 30.) Defendant Yu was onsite

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and saw Plaintiff the same day, but declined to issue a lower bunk chrono before reviewing

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the results of the x-rays he ordered.11 (ECF No. 1 at 232–34.) This was Plaintiff’s last visit

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with Defendant Yu, who subsequently left RJDCF. (ECF No. 50 at 80.) Plaintiff alleges

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that he fell off the upper bunk once more before he was issued a permanent lower bunk

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chrono on December 28, 2015. (Id. at 216, 220.)

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Plaintiff’s first 602 appeal contesting Defendant Yu’s decision not to renew his

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lower bunk and double mattress chronos was denied at every level of review up to the final,

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third level of review. (Id. at 61–68.) At each level of review, it was determined that

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Plaintiff’s medical record did not indicate the need for a lower bunk or double mattress

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chrono, consistent with Defendant Yu’s findings.12 (See id.) Plaintiff’s second 602 appeal

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Plaintiff references the contents of Defendant Yu’s medical notes from his August 20, 2015 appointment
in his SAC, but does not attach Defendant Yu’s notes as an exhibit, as he did in his original complaint.
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As per the treatment notes written by R.N. Gines. (ECF No. 1 at 323–34.)
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At the first level of review, Dr. Walker, Chief Physician & Surgeon of RJDCF, noted that “[a]fter a
thorough examination it has been determined that a lower bunk chrono and extra mattress chrono will not
be approved. They are not medically indicated.” (ECF No. 50 at 63.) At the second level of review, Dr.
Roberts, Chief Medical Executive of RJDCF, and M. Glynn, Chief Executive Officer of RJDCF, stated
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as to his request for lower bunk and double mattress chronos was denied at the first, second,

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and third level of review on the basis that it was duplicative of his first appeal, which was

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still pending at the time. (Id. at 72–76.)

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Plaintiff filed a third 602 appeal against Defendant Yu on September 19, 2015, again

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contesting Defendant Yu’s decision not to renew Plaintiff’s lower bunk and double

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mattress chronos. (Id. at 78–79.) This appeal was screened out on October 24, 2015, as

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duplicative of Plaintiff’s two prior appeals and because Defendant Yu was no longer a

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physician at RJDCF. (Id. at 80.)

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III. DISCUSSION
A.

Legal Standards

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1.

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The Federal Rules of Civil Procedure require that a plaintiff’s complaint must

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provide a “short and plain statement of the claim showing that [he] is entitled to relief.”

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Fed. R. Civ. P. 8(a)(2). The pleading standard that Rule 8 announces does not require

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detailed factual allegations, and the statement need only “give the defendant fair notice of

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what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly,

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550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However,

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (citing Twombly,

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550 U.S. at 555).

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Motion to Dismiss for Failure to State a Claim

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that “a lower bunk and double mattress are not medically indicated” and that Plaintiff’s “medical problems
have clearly been acknowledged by professional health care staff familiar with [his] medical history.” (Id.
at 65.) At the third, final level of review, J. Lewis, Deputy Director of the Policy and Risk Management
Services of the California Correctional Health Care Services, stated that Defendant Yu “completed
multiple in-depth assessments, noted review of [Plaintiff’s] history, current symptoms, and x-ray results,
and determined [Plaintiff] does not meet the Inmate Medical Services Policies and Procedures . . . criteria
for a bottom bunk accommodation.” (Id. at 67.) Lewis then found that “[a]fter review, no intervention at
the Director’s Level of Review is necessary as [Plaintiff’s] medical condition has been evaluated and
[Plaintiff is] receiving treatment deemed medically necessary.” (Id. at 68.)
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A motion to dismiss for failure to state a claim upon which relief can be granted

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pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the

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claims in the complaint. See Twombly, 550 U.S. at 555. “To survive a motion to dismiss,

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a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

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relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at

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570). “A claim has facial plausibility when the plaintiff pleads factual content that allows

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the court to draw the reasonable inference that the defendant is liable for the misconduct

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alleged.” Id. (citing Twombly, 550 U.S. at 556). “Determining whether a complaint states

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a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court

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to draw on its judicial experience and common sense.” Cooney v. Rossiter, 583 F.3d 967,

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971 (9th Cir. 2009) (quoting Iqbal, 556 U.S. at 679). The mere possibility of misconduct

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falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678–79; see also Moss

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v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

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In ruling on a Rule 12(b)(6) motion to dismiss, the court does not look at whether

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the plaintiff will “ultimately prevail but whether the [plaintiff] is entitled to offer evidence

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to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The court may

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consider allegations contained in the pleadings, exhibits attached to the complaint, and

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documents and matters properly subject to judicial notice. Outdoor Media Grp., Inc. v.

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City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007); Roth v. Garcia Marquez, 942 F.2d

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617, 625 n.1 (9th Cir. 1991). The court must assume the truth of the facts presented and

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construe all inferences from them in the light most favorable to the nonmoving party.

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Buckey v. County of Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992). However, the court

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is “not required to accept legal conclusions cast in the form of factual allegations if those

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conclusions cannot reasonably be drawn from the facts alleged.” Clegg v. Cult Awareness

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Network, 18 F.3d 752, 754–55 (9th Cir. 1994). Moreover, when an allegation in the

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complaint is refuted by an attached document, the Court need not accept the allegation as

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true. Roth, 942 F.2d at 625 n.1.

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2.

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With respect to an inmate who proceeds pro se, his factual allegations, “however

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inartfully pleaded,” must be held “to less stringent standards than formal pleadings drafted

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by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972); see also Erickson v. Pardus,

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551 U.S. 89, 94 (2007) (reaffirming that this standard applies to pro se pleadings post-

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Twombly). Thus, where a plaintiff appears pro se in a civil rights case, the Court must

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construe the pleadings liberally and afford plaintiff any benefit of the doubt. Hebbe v.

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Pliler, 627 F.3d 338, 342 (9th Cir. 2010). However, in giving liberal interpretation to a

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pro se civil rights complaint, courts may not “supply essential elements of the claim that

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were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268

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(9th Cir. 1982). “The plaintiff must allege with at least some degree of particularity overt

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acts which defendants engaged in that support the plaintiff’s claim.” Jones v. Cmty.

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Redevelopment Agency of L.A., 733 F.2d 646, 649 (9th Cir. 1984) (internal quotation

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omitted).

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B.

Standard Applicable to Pro Se Litigants

Analysis

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1.

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As noted above, Federal Rule of Civil Procedure 8(a)(2) requires that each pleading

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include a “short and plain statement of the claim.” Further, “each allegation must be

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simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1); see Iqbal, 556 U.S. at 677–78. When

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a complaint fails to comply with Rule 8’s requirements, a district court may properly

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dismiss the complaint. See United States ex rel. Cafasso v. Gen. Dynamics C4 Sys., Inc.,

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637 F.3d 1047, 1059 (9th Cir. 2011) (citing cases upholding Rule 8 dismissals where

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pleadings were “verbose,” “confusing,” “distracting, ambiguous, and unintelligible,”

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“highly repetitious,” and comprised of “incomprehensible rambling”); McHenry v. Renne,

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84 F.3d 1172, 1178–80 (9th Cir. 1996) (upholding a Rule 8(a) dismissal of a complaint that

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was “argumentative, prolix, replete with redundancy, and largely irrelevant”).

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Length of SAC

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Here, Plaintiff’s SAC is 56 pages long and attaches 326 pages of exhibits.13 The

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Court finds that Plaintiff’s SAC, which is overly verbose and repetitive, along with the

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attachment of hundreds of pages of exhibits, violates Rule 8. Moreover, Plaintiff’s SAC

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violates Civil Local Rule 8.2 that provides, in pertinent part, that “[c]omplaints by prisoners

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under the Civil Rights Act, 42 U.S.C. § 1983” are to be written on forms “supplied by the

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court” and any “additional pages [are] not to exceed fifteen (15) in number.” S.D. Cal.

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Civ. L.R. 8.2. This Court’s Report and Recommendation on the second motion to dismiss

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and Judge Bashant’s order adopting the Report and Recommendation alerted Plaintiff to

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Civil Local Rule 8.2’s page-limit requirements and cautioned Plaintiff that any amended

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complaint must comply with this rule. (ECF Nos. 46 at 28 n.27; 47 at 8 (emphasis added).)

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Accordingly, for violating both Rule 8 and Civil Local Rule 8.2, the Court

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RECOMMENDS dismissal of Plaintiff’s SAC.

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2.

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Plaintiff’s SAC realleges that Defendant Yu violated his Eighth Amendment right

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to be free from cruel and unusual punishment when Defendant Yu declined to issue him a

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lower bunk chrono, resulting in three falls from his upper bunk. (See ECF No. 50 at 7–10;

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35–43.) Defendant Yu argues that Plaintiff’s SAC fails to cure the deficiencies of his

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original complaint and that Plaintiff’s opposition only “makes conclusory statements that

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his Eighth Amendment claim should not be dismissed.” (ECF Nos. 51-1 at 12–13; 57 at

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2.) The Court agrees.

Eighth Amendment Claim

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The factual allegations in Plaintiff’s SAC as to his Eighth Amendment claim against

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Defendant Yu are nearly identical to those made in his FAC. Plaintiff repeats his

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allegations, at times verbatim from his FAC, that Defendant Yu: (1) knew about Plaintiff’s

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medical history and complaints of pain (ECF No. 50 at 7, 18, 22–24, 26–28); (2) knew

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about Plaintiff’s alleged falls from his top bunk (id. at 7, 12–13, 28–31, 39–41); (3) knew

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Plaintiff’s original complaint was 41 pages long and attached 312 pages of exhibits. (See ECF No. 1).
Plaintiff’s FAC was 75 pages long, attached 647 pages of exhibits, and incorporated the 312 pages of
exhibits from the original complaint. (See ECF No. 27.)
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that Plaintiff’s prison cell lacked a ladder (id. at 27, 32, 37); (4) knew that Plaintiff’s

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prescribed medication would cause Plaintiff to fall off the top bunk (id. at 6–8, 12, 15, 18,

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29, 37, 39, 47); and (5) disregarded medical opinions from different medical providers

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recommending a lower bunk for Plaintiff (id. at 13, 16, 19, 25, 46).14 The Court has already

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determined in exhausting detail that these allegations fail to state an Eighth Amendment

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claim against Defendant Yu. (See ECF No. 46 at 7–24.) More importantly, Plaintiff does

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not allege any new, relevant factual allegations against Defendant Yu with respect to his

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Eighth Amendment claim.15

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Plaintiff’s Eighth Amendment claim against Defendant Yu for failure to state a claim.16

Accordingly, the Court RECOMMENDS dismissal of

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3.

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When previously determining whether to recommend granting Plaintiff leave to

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amend his FAC, the Court noted that in Plaintiff’s opposition to the second motion to

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dismiss, Plaintiff asserted for the first time that “[Defendant] Yu seemed mad that Plaintiff

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put in an appeal against him as staff misconduct, and was taking away Plaintiff’s lower

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bunk chrono in retaliation.” (ECF No. 46 at 28 (quoting ECF No. 40 at 26).) Plaintiff

16

further asserted that after he filed his first 602 appeal contesting Defendant Yu’s decision

17

not to renew Plaintiff’s lower bunk chrono, “Defendant Yu would no longer discuss or

First Amendment Claim

18
19
20
21
22
23
24
25
26
27
28

14

Plaintiff also alleged in his FAC that Defendant Yu purposefully ignored Volume 4, Chapter 23 of the
California Correctional Health Care Service (“CCHCS”) procedures, which he alleged provides that
“[a]dvance age [sic] of 60 automatically qualify for lower tier lower bunk.” (ECF No. 27 at 25.) The
Court previously found that the language of CCHCS policies and procedures directly contradicted
Plaintiff’s allegation. (ECF No. 46 at 20.) Plaintiff makes no such allegation in his SAC. He does,
however, attach as an exhibit an Inmate/Parolee Request form dated May 30, 2016, in which he requested
a copy of the CCHCS policies and procedures because “advance age [sic] of 60 automatically qualify for
lower bunk.” (ECF No. 50 at 85.)
15
In his motion, Defendant Yu contends that Plaintiff makes one new allegation—“that in January 2014,
Plaintiff had problems with his right knee while sitting ‘Indian style,’ on his lower bunk requiring a ‘tap
[and] drain’ to his knee.” (ECF No. 51-1 at 13 (citing ECF No. 50 at 20).) However, Plaintiff previously
made this exact allegation in paragraph 74 of his FAC. (See ECF No. 27 at 34.)
16
Defendant Yu argues that he is entitled to qualified immunity as to Plaintiff’s Eighth Amendment claim.
(ECF No. 51-1 at 14–15.) As the Court has determined twice before, because no constitutional right was
violated under the facts alleged in Plaintiff’s SAC, Defendant Yu is entitled to qualified immunity. (See
ECF Nos. 21 at 30; 46 at 30.)
12
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1

report anything Plaintiff had to say, and began to dismiss him from his office and ignored

2

Plaintiff from anything else he had to say.” (Id.) The Court construed these assertions as

3

an argument that Defendant Yu continued to deny Plaintiff a lower bunk accommodation,

4

and took additional punitive action against him, in retaliation for filing a 602 appeal and

5

not for a valid medical reason. Based on these assertions, the Court recommended that

6

Plaintiff be given leave to amend his complaint for a second time. (Id.)

7

In his SAC, Plaintiff asserts a First Amendment retaliation claim against Defendant

8

Yu. Specifically, Plaintiff alleges that as retaliation for Plaintiff’s filing of his first 602

9

appeal on or around May 13, 2015, “Defendant Yu on June 5, 2015[,] filed a CDCR 7410

10

. . . taking away [Plaintiff’s] lower bunk accommodations.” (ECF No. 50 at 32 (citing id.

11

at 214).) Plaintiff further alleges that Defendant Yu “continued not to renew [his] lower

12

bunk accommodation in deliberate retaliation.” (Id. at 33.)

13

An inmate suing a prison official pursuant to § 1983 for retaliation must allege

14

sufficient facts that show: (1) the prison official took some adverse action against the

15

inmate (2) because of (3) the inmate’s protected conduct and that the adverse action (4)

16

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

17

advance a legitimate penological purpose. Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th

18

Cir. 2005). For the reasons discussed below, the Court finds that Plaintiff fails to allege a

19

plausible retaliation claim against Defendant Yu.

20

a.

Elements 1, 2, and 3

21

As to the first element, Defendant Yu does not address in his opposition whether his

22

decision not to renew Plaintiff’s lower bunk chrono constitutes an adverse action sufficient

23

to plead a First Amendment retaliation claim. Because Defendant Yu’s decision affected

24

Plaintiff’s housing accommodations, the Court finds that Plaintiff’s claim sufficiently

25

alleges the adverse action element. See, e.g., Pratt v. Rowland, 65 F.3d 802, 804 (9th Cir.

26

1995) (finding an inmate’s transfer from a single-cell to a double-cell was an adverse action

27

sufficient to plead a First Amendment retaliation claim); see also Cejas v. Paramo, No.:

28

14-CV-1923-WQH(WVG), 2017 WL 1166288, at *5 (S.D. Cal. Mar. 28, 2017) (“An
13
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1

otherwise permitted action can be the basis for a retaliation claim if performed with a

2

retaliatory motive . . . .”); Walker v. Cal. Dept. of Corr., No. 2:09–cv–0569 WBS KJN P,

3

2014 WL 268585, at *3 (E.D. Cal. Jan. 22, 2014) (“[T]he interest asserted in a retaliation

4

claim is the right to be free of conditions that would not have been imposed but for the

5

alleged retaliatory motive.”). Plaintiff’s claim also sufficiently alleges the third element,

6

as the filing of an inmate grievance is protected conduct. Brodheim v. Cry, 584 F.3d 1262,

7

1271 n.4 (9th Cir. 2009); Rhodes, 408 F.3d at 568. However, Plaintiff’s claim falls short

8

on the second element—causation.

9

The causation element of a First Amendment retaliation claim requires an inmate to

10

allege facts that show that the inmate’s protected conduct was the substantial or motivating

11

factor underlying the prison official’s adverse action. Brodheim, 584 F.3d at 1271. An

12

inmate must “allege a causal connection between the adverse action and the protected

13

conduct.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012). In other words, “there

14

must be evidence linking the alleged retaliation to the exercise of” the protected conduct.

15

Canovas v. Cal. Dept. of Corr., No. 2:14–cv–2004 KJN P, 2014 WL 5699750, at *3 (E.D.

16

Cal. Oct. 30, 2014) (footnote omitted). However, “[b]ecause direct evidence of retaliatory

17

intent rarely can be pleaded in a complaint, allegation of a chronology of events from which

18

retaliation can be inferred is sufficient to survive a dismissal.” Watison, 668 F.3d at 1114.

19

Nevertheless, timing alone is generally not enough to support an accusation of retaliation

20

when “there is little else to support the inference.” See Pratt, 65 F.3d at 808; accord

21

O’Brien v. Gularte, No. 18-cv-00980-BAS-MDD, 2019 WL 77112, at *3 (S.D. Cal. Jan.

22

2, 2019).

23

Here, Plaintiff alleges that Defendant Yu “[took] away” and then “continued not to

24

renew” his lower bunk chrono in retaliation because Plaintiff filed a 602 appeal contesting

25

Defendant Yu’s initial decision not to renew his expiring lower bunk chrono. (ECF No.

26

50 at 32–33.) As previously stated, the records attached to Plaintiff’s SAC indeed show

27

that on June 5, 2015, Defendant Yu filed a 7410 chrono updating Plaintiff’s housing

28

accommodations to “Unrestricted,” as opposed to “Bottom Bunk.” (Id. at 214.) However,
14
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Defendant Yu’s notes from his May 13, 2015 appointment with Plaintiff indicate that he

2

had already decided not renew Plaintiff’s expiring lower bunk chrono before Plaintiff filed

3

his appeal. (See id. at 115.) Thus, the alleged adverse action, more accurately stated, is

4

that Defendant Yu did not change his initial May 13, 2015 decision not to renew Plaintiff’s

5

expiring lower bunk chrono, and then officially updated Plaintiff’s chrono to reflect this

6

decision, after Plaintiff filed his 602 appeal. The issue then becomes whether Plaintiff has

7

adequately alleged that his appeal was the substantial or motivating factor in Defendant

8

Yu’s decision not to change his mind. See Brodheim, 584 F.3d at 1271.

9

The Court finds that Plaintiff does not allege any facts in his SAC that show a causal

10

link between his 602 appeal and Defendant Yu’s decision not to change his initial

11

determination that Plaintiff did not have a medical need for a lower bunk. Plaintiff makes

12

several references to “retaliation” throughout his SAC, but merely concludes, without any

13

factual support, that Defendant Yu’s decision not to change his mind was retaliatory.17

14

Although “direct evidence of retaliatory intent rarely can be pleaded in a complaint,”

15

Watison, 668 F.3d at 1114, Plaintiff does not allege any facts that would circumstantially

16

show18 that Defendant Yu acted with a retaliatory motive. Unlike Plaintiff’s opposition to

17

the second motion to dismiss wherein Plaintiff stated that “[Defendant] Yu seemed mad

18

that Plaintiff put in an appeal against him as staff misconduct,” and that “Defendant Yu

19

would no longer discuss or report anything Plaintiff had to say, and began to dismiss him

20
21
22
23
24
25
26
27
28

See, e.g., ECF No. 50 at 24 (“Defendant Yu admit[t]ed and documented that he saw Plaintiff for a
CDCR 602 appeal against himself. Defendant Yu was deliberate indifference [sic] to Plaintiff[’s] serious
medical need, and in retaliation took away the lower bunk.”), 26 (“[A]s deliberate retaliation Defendant
Yu took an adverse action against Plaintiff for his . . . filing grievances [, and] his protected conduct was
the substantial or motivating factor behind Defendant Yu’s conduct.”), 33 (“Defendant Yu was aware of
the facts that Plaintiff filed the grievance against [Defendant] Yu. Defendant Yu continued not to renew
the [m]edical lower bunk accommodation in deliberate retaliation.”).
18
Circumstantial evidence of retaliatory motive may include: (1) proximity in time between the protected
conduct and the alleged retaliation; (2) the defendant’s expressed opposition to the protected conduct; and
(3) other evidence showing that the defendant’s reasons for the challenged action were false or pretextual.
McCollum v. Cal. Dept. of Corr. & Rehab., 647 F.3d 870, 882 (9th Cir. 2011).
17

15
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1

from his office,” Plaintiff makes no such allegations of animus in his SAC.19 (ECF No. 40

2

at 26.)

3

Additionally, the Court cannot reasonably infer from the chronology of events that

4

Defendant Yu acted with a retaliatory motive because Defendant Yu made the decision not

5

to renew Plaintiff’s lower bunk chrono before Plaintiff filed his appeal. See Watison, 668

6

F.3d at 1114. At the May 13, 2015 appointment, Defendant Yu told Plaintiff that he had

7

“no medical indication” for a lower bunk, but he would order x-rays “to better understand

8

the medical issues,” and he “may reevaluate consideration” after reviewing Plaintiff’s x-

9

rays. (ECF No. 50 at 115.) At the June 5, 2015 appointment, Defendant Yu then discussed

10

Plaintiff’s x-ray results with Plaintiff, explained to Plaintiff that there was still no indication

11

that his medical needs warranted a lower bunk, and reminded Plaintiff that he could appeal

12

further. (Id. at 111.) Defendant Yu then filed the 7410 chrono that Plaintiff alleges took

13

away his lower bunk twelve days before it was allegedly set to expire. Although Defendant

14

Yu did not officially update Plaintiff’s chrono to unrestricted until after Plaintiff filed his

15

602 appeal, Defendant Yu waited until after he had reviewed Plaintiff’s x-rays—as he

16

previously noted that he would—and explained again to Plaintiff why his renewal request

17

was still denied before officially updating Plaintiff’s chrono. Moreover, Defendant Yu

18

updated Plaintiff’s chrono more than three weeks after Plaintiff had filed his 602 appeal

19

and even encouraged Plaintiff to continue his appeal. (See id.) Looking at the facts as a

20

whole, timing does not circumstantially show evidence of retaliatory motive in this case.

21

Plaintiff fails to allege a causal connection between the filing of his 602 appeal and

22

Defendant Yu’s decision not to change his mind regarding Plaintiff’s medical need for a

23

lower bunk chrono.

24
25
26
27
28

Even if Plaintiff had included allegations in his SAC that Defendant Yu “would no longer discuss or
report anything Plaintiff had to say” and “began to dismiss him from his office” after he filed his appeal,
Plaintiff’s medical records contradict these allegations and show that Plaintiff had multiple appointments
with Defendant Yu after he filed his appeal. (E.g., ECF No. 50 at 109, 111, 113.) Defendant Yu’s June
5, 2015 notes even indicate that he “told Plaintiff he [could] come back any time for medication.” (Id. at
111.) See Roth, 942 F.2d at 625 n.1 (“[W]hen the allegations of the complaint are refuted by an attached
document, the Court need not accept the allegations as being true.”).
19

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1

b.

Element 4

2

Because Plaintiff fails to adequately allege the second element, Plaintiff’s SAC fails

3

to satisfy the pleading requirements of a First Amendment retaliation claim. Nevertheless,

4

the Court finds that Plaintiff also fails to meet the fourth and fifth element as well. The

5

fourth element of a retaliation claim requires an inmate to show that the state actor’s

6

adverse action chilled the inmate’s exercise of his First Amendment rights. Rhodes, 408

7

F.3d at 567. The appropriate inquiry is not whether the inmate was actually chilled from

8

engaging in protected activity, but objectively, whether “the adverse action at issue would

9

chill or silence a person of ordinary firmness from future First Amendment activities.”

10

Brodheim, 584 F.3d at 1271.

11

In his motion, Defendant Yu argues that his decision not to change his initial

12

determination that Plaintiff did not have a medical need for a lower bunk chrono “would

13

not deter a person of ordinary firmness from pursing his claim through higher levels of the

14

grievance process or filing subsequent grievances.” (ECF No. 51-1 at 18.) Plaintiff in

15

response sets forth the applicable standard, but provides no argument as to why a person

16

of ordinary firmness would be deterred by Defendant Yu’s actions. (See ECF No. 56 at

17

18–19.)

18

The Court agrees with Defendant Yu and finds that his actions would not have

19

deterred a reasonable person from pursuing an appeal through higher levels of the

20

grievance process or from filing additional appeals. In fact, as previously discussed,

21

Defendant Yu’s notes from the June 5, 2015 appointment state that he told Plaintiff that his

22

request was “denied at this time” but reminded Plaintiff “that he [could] appeal further.”

23

(ECF No. 50 at 111.) Further, on July 20, 2015, Defendant Yu advised Plaintiff to await

24

the determination of his appeals which “would maybe grant his request.” (Id. at 109.)

25

Additionally, Plaintiff has not alleged any facts in his SAC that support his position that

26

Defendant Yu’s decision not to change his mind would chill a person of ordinary firmness

27

from further appealing. Plaintiff’s SAC merely sets forth a legal conclusion that the “facts

28

establish that . . . Defendant Yu[’s] actions chilled Plaintiff[’s] protected activities.” (ECF
17
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1

No. 50 at 33.) Accordingly, Plaintiff has not sufficiently alleged that Defendant Yu’s

2

decision not to change his mind would chill a person of ordinary firmness from further

3

appealing his decision.

4

c.

Element 5

5

Finally, the fifth element of a retaliation claim requires an inmate to allege facts that

6

could show that the challenged action “did not reasonably advance a legitimate correctional

7

goal.” Rhodes, 408 F.3d at 568. The inmate bears the burden of pleading and proving the

8

absence of legitimate correctional goals for the defendant’s challenged conduct. Pratt, 65

9

F.3d at 806.

10

In his motion, Defendant Yu argues that “Plaintiff fails to allege facts supporting the

11

lack of legitimate correctional goals for denying an agile, muscular, basketball-playing

12

inmate such as Plaintiff a lower bunk chrono so that lower bunks would be available for

13

more justifiable inmates.” (ECF No. 51-1 at 20.) Plaintiff in response argues that in

14

paragraph 99 of his SAC, he asserted that “Defendant Yu[’s] retaliation conduct did not

15

advance [a] legitimate penological interest,” and that “Defendant Yu can not [sic] present

16

any legitimate penological interest, but to harm Plaintiff.” (ECF No. 56 at 22 (citing ECF

17

No. 50 at 33).)

18

The Court agrees with Defendant Yu and finds that Plaintiff has not met his burden

19

of showing that Defendant Yu’s conduct did not advance a legitimate correctional goal.

20

Plaintiff’s SAC offers nothing more than a conclusory allegation devoid of factual support.

21

Furthermore, the medical documents Plaintiff attaches to his SAC are replete with evidence

22

that Defendant Yu’s decision reflected his medical judgment based upon the medical

23

record before him.20 Accordingly, the Court finds that Plaintiff fails to sufficiently allege

24

the fifth element of a First Amendment retaliation claim.

25
26
Defendant Yu’s notes from his first appointment with Plaintiff on February 10, 2015, indicate that
Plaintiff was experiencing dull, low back pain but “was playing basketball at least an hour a day, more if
he can.” (ECF No. 50 at 119.) At Plaintiff’s next appointment on May 13, 2015, Defendant Yu noted
that Plaintiff reported neck and low back pain, but was exercising; could stand, sit, bend, and turn his body
without difficulty; could “walk erect” without limping; and had not had a seizure since he had been in
20

27
28

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1

d.

Conclusion

2

For the foregoing reasons, Plaintiff’s SAC fails to assert a viable First Amendment

3

retaliation claim. Plaintiff’s allegations raise a mere possibility that Defendant Yu acted

4

with retaliatory motive and therefore fall short of meeting the required plausibility

5

standard. Because the Court cannot draw the reasonable inference that Defendant Yu is

6

liable for the misconduct Plaintiff alleges, the Court RECOMMENDS dismissal of

7

Plaintiff’s First Amendment claim against Defendant Yu for failure to state a claim.

8

4.

9

Plaintiff’s SAC raises two California state law claims that he previously raised in his

10

FAC: medical negligence and malpractice in violation of California Government Code §

11

845.6 and violation of Article 1, Sections 15 and 17 of the California Constitution. (ECF

12

No. 50 at 48, 52; see ECF No. 27 at 65–71.) Judge Bashant previously adopted this Court’s

13

Recommendation to decline to exercise supplemental jurisdiction over Plaintiff’s state law

14

claims because Plaintiff’s FAC failed to state any federal law claims. (ECF No. 47 at 7.)

15

As discussed above, Plaintiff failed to amend his complaint to state an Eighth Amendment

16

or First Amendment claim against Defendant Yu.

17

RECOMMENDS that the District Court decline to exercise supplemental jurisdiction

18

over Plaintiff’s remaining state law claims.

State Law Claims

Accordingly, the Court

19
20
21
22
23
24
25
26
27
28

prison. (Id. at 115.) At Plaintiff’s June 5, 2015 appointment, Defendant Yu noted that Plaintiff again
reported lower back pain, but that Plaintiff was “quick in and out of the chair,” “walking erect,” and still
playing basketball for exercise. (Id. at 111.) At Plaintiff’s June 22, 2015 appointment, Defendant Yu
noted that Plaintiff again reported lower back pain but also left knee pain. (Id. at 113.) However,
Defendant Yu observed that Plaintiff could still “walk erect, fast, [with] no limping or difficulty,” that his
left knee did not show “laxity, tenderness, swelling,” or “difficulty bending.” (Id.) Defendant Yu ordered
x-rays of Plaintiff’s knee to check for abnormalities. (Id.) At Plaintiff’s July 20, 2015 appointment,
Defendant Yu noted that Plaintiff reported pain in his upper back, right shoulder, elbow, and knee. (Id. at
109.) However, Defendant Yu observed that Plaintiff’s right shoulder had a “full range of motion” and
there was “no swelling in the knee bilaterally.” Defendant Yu further observed Plaintiff “walk[] erect”
with “no limping,” and hop onto and move on “the table without any difficulty.” (Id.) Defendant Yu
ordered x-rays of Plaintiff’s upper back. (Id.) At Plaintiff’s August 20, 2015 appointment, Defendant Yu
noted that Plaintiff reported that he was playing basketball and exercising every day. (ECF No. 1 at 281.)
Defendant Yu also observed Plaintiff “walking erect” without limping and that he could get “in and out
of the chair” and “onto the examination table without any difficulty.” (Id.)
19
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1

5.

2

Although the Court recommends dismissal of all of Plaintiff’s claims, and requests

3

for specific remedies cannot stand without a supporting cause of action, the Court will still

4

briefly address Plaintiff’s requests for injunctive relief. Plaintiff seeks a preliminary

5

injunction ordering Defendant Yu to provide Plaintiff with a cell ladder and a life[-]long

6

lower bunk chrono; and (2) the installation of ladders in cells statewide to prevent prisoners

7

from falling off the top bunk. (ECF No. 50 at 54.) Although Defendant Yu is entitled to

8

qualified immunity, qualified immunity “means only that [a] defendant[] ‘need not respond

9

in damages. It does not mean that they cannot be enjoined from future violations of [a

10

plaintiff’s] rights.’” Walker v. Gomez, 370 F.3d 969, 978 (9th Cir. 2004) (quoting Nelson

11

v. Heiss, 271 F.3d 891, 897 (9th Cir. 2001)). However, as discussed below, the Court finds

12

that Plaintiff fails to show that he would be entitled to injunctive relief even if he had

13

asserted a viable claim for relief.

Requests for Injunctive Relief

14

As to Plaintiff’s request for a preliminary injunction ordering Defendant Yu to

15

provide him with a cell ladder and a life-long lower bunk chrono, Plaintiff alleges that

16

Defendant Yu was “fired,” and therefore is no longer employed at RJDCF. (ECF No. 50

17

at 1, 46.) The Court also notes that Plaintiff’s third 602 appeal was denied in part because

18

Defendant Yu “no longer works” at RJDCF. (Id. at 80.) Therefore, as it appears Defendant

19

Yu is no longer employed at RJDCF, he cannot “play any role in Plaintiff’s current

20

conditions of confinement.” Singleton v. Kernan, No. 16-cv-02462-BAS-NLS, 2017 WL

21

131831, at *3 (S.D. Cal. Jan. 13, 2017) (denying motion for preliminary injunction in part

22

because the inmate plaintiff “was no longer housed in the same institution where most of

23

the [d]efendants [were] alleged to be employed”); Spencer v. Hernandez, No. 08–CV–

24

0416–JM (JMA), 2009 WL 331007, at *8 (S.D. Cal. Feb. 9, 2009) (“[T]here is no chance

25

of future retaliation against Plaintiff by [Defendant], who allegedly threatened Plaintiff,

26

because [Defendant] no longer works at [RJDCF] where Plaintiff is located.”). Moreover,

27

Defendant Yu would be powerless to effectuate an injunction even if the Court were to

28

issue one.
20
16-cv-01998-BAS-JLB

1

As to Plaintiff’s request for the statewide installation of cell ladders to prevent other

2

prisoners from falling off the top bunk, Plaintiff lacks standing to seek such relief on behalf

3

of other prisoners. Mayweathers v. Hickman, No. 05cv713 WQH (CAB), 2008 WL

4

4206822, at *8 (S.D. Cal. May 16, 2008); e.g., Spencer, 2009 WL 331007, at *8 (finding

5

that the inmate plaintiff lacked standing to seek an injunction ordering that cameras be

6

installed “anywhere a corrections officer might be able to ‘hurt someone’”). Accordingly,

7

the Court finds that Plaintiff fails to show that he would be entitled to injunctive relief even

8

if he had asserted a viable cause of action.

9

6.

Leave to Amend

10

Pursuant to Federal Rule of Civil Procedure 15(a)(2), a court should grant leave to

11

amend when justice so requires “even if no request to amend the pleading was made, unless

12

it determines that the pleading could not possibly be cured by the allegation of other facts.”

13

Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc) (citation omitted). “Futility

14

of amendment can, by itself, justify the denial of a motion for leave to amend.” Bonin v.

15

Calderon, 59 F.3d 815, 845 (9th Cir. 1995); see also Carvalho v. Equifax Info. Servs., LLC,

16

629 F.3d 876, 893 (9th Cir. 2010). A court may properly deny leave to amend where a

17

plaintiff has already amended the complaint and does not correct the deficiencies that

18

caused the original complaint to fail to state a claim on which relief can be granted.

19

McGlinchy v. Shell Chem. Co., 845 F.2d 802, 809–10 (9th Cir. 1988) (“Repeated failure to

20

cure deficiencies by amendments previously allowed is [a] valid reason for a district court

21

to deny a party leave to amend.” (citation omitted)). The “district court’s discretion over

22

amendments is especially broad where the court has already given a plaintiff one or more

23

opportunities to amend his complaint.” DCD Programs, Ltd. v. Leighton, 833 F.2d 183,

24

186 n.3 (9th Cir. 1987) (citations omitted).

25

a.

Eighth Amendment Claim

26

The Court has twice provided Plaintiff with a detailed statement of the factual

27

deficiencies of his original compliant and FAC as to his Eighth Amendment claim against

28

Defendant Yu. (See ECF No. 21, 26, 46, 47.) Yet, Plaintiff’s SAC does not set forth any
21
16-cv-01998-BAS-JLB

1

new, relevant facts that this Court has not previously considered and therefore, cannot

2

possibly correct the deficiencies that caused Plaintiff’s original complaint and FAC to fail.

3

For repeated failure to cure his deficiencies, the Court RECOMMENDS that Plaintiff’s

4

Eighth Amendment claim against Defendant Yu be dismissed with prejudice.

5

b.

First Amendment Claim

6

As to Plaintiff’s First Amendment retaliation claim against Defendant Yu, the Court

7

notes that this is the first time Plaintiff has alleged this claim. However, in granting

8

Plaintiff leave to amend his FAC, Judge Bashant was concerned that “Plaintiff [had] never

9

alleged retaliation by Defendant Yu in the two years this case [had] been pending, and only

10

did so in response to a second motion to dismiss,” but agreed to permit Plaintiff a “final

11

opportunity” to amend his complaint. (ECF No. 47 at 6.) However, in amending his

12

complaint, Plaintiff failed to allege the very facts that prompted this Court to recommend

13

Plaintiff be granted leave to amend.21 As Defendant Yu argues, “Plaintiff was clearly given

14

leave to amend to add such allegations if he so desired, but he chose not [to] do so.” (ECF

15

No. 51-1 at 21.) Moreover, the Court finds that Plaintiff could not allege any facts that

16

would show that Defendant Yu’s actions created a chilling effect or did not reasonably

17

advance a legitimate correctional goal. Therefore, because any attempt by Plaintiff to

18

amend his First Amendment retaliation claim against Defendant Yu would likewise fail,

19

amendment would be futile. Accordingly, the Court RECOMMENDS that Plaintiff’s

20

First Amendment claim against Defendant Yu be dismissed with prejudice.

21

IV. CONCLUSION

22

For the reasons discussed above, IT IS HEREBY RECOMMENDED that the

23

District Court issue an Order: (1) accepting this Report and Recommendation; and

24

(2) GRANTING Defendant Yu’s Motion to Dismiss (ECF No. 51).

25

///

26
27
28

21

As discussed above, even if Plaintiff had added these allegations, they are refuted by the medical records
Plaintiff attaches to his SAC.
22
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1

IT IS ORDERED that no later than February 12, 2019, any party to this action

2

may file written objections with the Court and serve a copy on all parties. The document

3

should be captioned “Objections to Report and Recommendation.”

4

IT IS FURTHER ORDERED that any reply to the objections shall be filed with

5

the Court and served on all parties no later than February 22, 2019. The parties are advised

6

that failure to file objections within the specified time may waive the right to raise those

7

objections on appeal of the Court’s order. See Martinez v. Ylst, 951 F.2d 1153, 1156 (9th

8

Cir. 1991).

9

Dated: January 15, 2019

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