Stevenson v. Beard et al

Filing 47

REPORT AND RECOMMENDATION of U.S. Magistrate Judge: re 32 MOTION to Dismiss for Failure to State a Claim. Objections to the R&R are due by 5/14/2018. Replies are due by 5/21/2018. Signed by Magistrate Judge Peter C. Lewis on 4/26/2018.(mpl)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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STEVIE J. STEVENSON,

Case No.: 3:16-cv-03079-JLS-PCL
Plaintiff,

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v.

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REPORT AND RECOMMENDATION
OF U.S. MAGISTRATE JUDGE:

JEFFREY BEARD, Ph.D., et al.,

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DEFENDANTS’ MOTION TO
DISMISS

Defendants.

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Before the Court is Defendants’ motion to dismiss, filed on January 8, 2018,

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arguing the first claim (“Claim One”) of Plaintiff’s first amended complaint (“FAC”),

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(Doc. 8), and defendants S. Kernan and R. Madden should be dismissed. (Doc. 32.)

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Plaintiff filed his FAC on June 8, 2017, making multiple claims: (1) Plaintiff and other

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inmates housed in California state prisons have been deprived of their due process rights

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as a result of the California Department of Corrections and Rehabilitation (CDCR)

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amending statutes governing law libraries in prisons; (2) Plaintiff’s rights were violated

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when Centinela State Prison staff opened his legal mail out of his presence; (3) Plaintiff

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was subject to retaliation by prison staff in that he was not allowed to mail outgoing

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documents to courts, attorneys, or the California Innocence Project; (4) Plaintiff’s rights

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have been violated because Centinela’s litigation coordinator has withheld from Plaintiff

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an audio CD recording of an allegedly exculpatory witness statement; and (5) altogether,
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the above deprivations have effectively denied Plaintiff the right to access the courts to

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present a “non-frivolous claim.” (Doc. 8.)

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Defendants move to dismiss Plaintiff’s FAC on the following grounds: (1) Claim

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One is precluded under res judicata because Plaintiff has previously litigated the claim in

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a petition for writ of habeas corpus; and (2) defendants Kernan and Madden are not liable

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on any claim because supervisory authority is not sufficient to give rise to liability under

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28 U.S.C. section 1983 (“Section 1983”). (Doc. 32.) To support the first argument,

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Defendants have moved the Court to take judicial notice of the California Court of

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Appeal and California Supreme Court’s denials of Plaintiff’s previously filed petitions.

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(Doc. 32-2.) Plaintiff also filed a motion for judicial notice of his actual petitions filed

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with these respective courts. (Doc. 39; see also Doc. 38, Exhibits 1-3.)

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The Honorable Janis L. Sammartino has referred the matter to the undersigned

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Judge for Report and Recommendation pursuant to 28 U.S.C. section 636(b)(1)(B) and

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Local Civil Rule 72.1(c)(1)(d). After a thorough review of the pleadings and supporting

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documents, this Court recommends the motion to dismiss be GRANTED IN PART.

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II. BACKGROUND1

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Plaintiff is currently incarcerated at Centinela State Prison, where Plaintiff has

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conducted legal research on a regular basis.

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A. Amending the Statutes Governing Prison Law Libraries

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During Plaintiff’s incarceration, Plaintiff has endeavored to challenge his

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conviction through various appeals, motions, and petitions. In doing so, Plaintiff has

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used, and continues to use, the law library at Centinela. Prior to 2014, Centinela had a

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law library which consisted of both law books and three computers which inmates could

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use to conduct electronic legal research. (Doc. 8 at 7.) These materials were published by

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Westlaw. Plaintiff was able to use these materials efficiently because of the key cite

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The following facts are taken from Plaintiff’s FAC, (Doc. 8), and are accepted as true for the purpose
of this motion. See Vasquez v. L.A. Cnty., 487 F.3d 1246, 1249 (9th Cir. 2007) (In ruling on a motion to
dismiss, the court must “accept all material allegations of fact as true”).
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system which Westlaw uses to organize its materials. (Id. at 9.) Each week Plaintiff

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desired to conduct legal research, Plaintiff was allotted two hours in the law library,

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during which Plaintiff could conduct electronic research or research in physical books.

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(Id. at 7-8.) These sessions were generally shared with 14 other inmates. (Id. at 9.)

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On January 1, 2014, however, Defendant Jeffrey Beard implemented a new rule

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which switched the state prisons’ law libraries from using Westlaw materials to Lexis

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materials. (Doc. 8 at 7.) Beard claimed these two publishers’ materials were equivalent to

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one another. When Beard implemented this change, Beard also stopped the standing

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order of updated Westlaw books. (Id. at 8.) Because Lexis was fully available

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electronically, there presumably was no longer any need for the physical books to be

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routinely updated.

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While the new Lexis materials are available electronically, according to Plaintiff,

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conducting legal research is now significantly more complicated than before for more

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reasons than merely having to learn a new system. First, Centinela only has a small

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number of computers provided for inmates to conduct legal research. In Plaintiff’s unit of

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Centinela specifically, there were only three computers when the change was originally

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implemented. (Id. at 9.) Since then, Centinela has added three additional computers to

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Plaintiff’s unit’s law library. (Id. at 105.) This has not remedied the issue completely,

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though. Centinela’s law library has three two-hour long sessions where 15 inmates are

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allowed to go to the law library and conduct legal research. (Id.) Even with the increased

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number of computers, inmates still outnumber the computers. Previously, this was not an

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issue because those inmates who were unable to use a computer could perform research

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using the available books. Now, however, those same books are almost a decade out of

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date, and thus no longer prove reliable sources. (Id. at 10.)

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To combat the issue of too few computers being available, Beard also implemented

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a rule stating each inmate is only to use a computer to conduct legal research for 30

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minutes at a time. (Id. at 17.) This time limitation would allow for each of the 15 inmates

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to be able to use the computer for at least 30 minutes each week. However, at Centinela,
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there is no enforcement of this time limitation, and therefore, those inmates who do not

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arrive to the law library first are left at the mercy of those inmates who do arrive first and

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are able to secure a computer. (Id.) According to Plaintiff, these early arriving inmates do

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not follow the 30 minute time limitation, and no prison staff enforces the rule. This leaves

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nine of the 15 inmates with two hours to conduct legal research in outdated books.

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Plaintiff now argues Beard’s actions in transitioning prisons from Westlaw to

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Lexis, and the following actions taken to remedy the crop of issues which arose as a

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result of the switch deprived Plaintiff of his liberty interest in having a law library where

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Plaintiff can conduct meaningful legal research. (Id. at 5.) Specifically, Plaintiff claims

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all inmates have a right to a law library and related services. (Id.) In switching from

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Westlaw to Lexis, thereby taking away the keycite system as well as requiring all

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research be conducted electronically, Plaintiff claims Defendants have deprived Plaintiff

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of his due process rights. (Id.)

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B. Mailroom Issues

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During Plaintiff’s incarceration, Plaintiff has recently had issues with mailroom

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staff handling his mail inappropriately. On May 27, 2016, Plaintiff alleges he received

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mail from the California Innocence Project, and the envelope was “clearly stamped

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‘Confidential Legal Mail.’” (Id. at 19.) Despite this stamp, however, upon inspecting the

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envelope, Plaintiff discovered there were affidavits, declarations, and documents which

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had been removed from the envelope. (Id.) Based upon this, Plaintiff argues the mailroom

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staff must have opened his mail from the California Innocence Project, removed the

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documents from the envelope, and read the documents therein outside the presence of

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Plaintiff. (Id.) Plaintiff notified prison staff of this mishandling of his mail immediately.

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(Id.)

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This type of mishandling of Plaintiff’s mail happened a second time on June 27,

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2016. That time, Plaintiff had received mail from the Los Angeles County District

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Attorney’s Office. This letter was also clearly marked as confidential legal mail. (Id.)

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Again, Plaintiff’s mail had been opened by the mailroom staff, and Plaintiff concluded
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the mailroom staff had read his mail out of his presence. (Id.) After the second incident,

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Plaintiff filed an inmate complaint form alleging his mail was being opened outside

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Plaintiff’s presence, despite it being clearly marked as legal confidential mail. (Id. at 19-

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20.)

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After Plaintiff had filed his complaint, this mishandling occurred a third time on

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January 31, 2017. This third time, Plaintiff was given mail delivered from the Superior

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Court of San Diego. (Id. at 20.) The envelope containing the mail, however, was not an

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official envelope from the Superior Court, nor did it have an address or any stamps on it.

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(Id.) The envelope did have multiple stickers on the front, which both Plaintiff and a

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prison correctional officer found odd. Upon opening the envelope, Plaintiff knew the

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envelope contained legal confidential mail because a brief Plaintiff had filed was

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enclosed. (Id.) Plaintiff believes the original envelope had been opened by mailroom

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staff, the staff had read Plaintiff’s mail, and the staff had put the mail into a new

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envelope. (Id.) After this incident, Plaintiff filed another inmate complaint. (Id.)

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On May 16, 2017, Plaintiff’s inmate complaints were denied at the first level. (Id.)

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Plaintiff then took the form to the mailroom in order to mail the complaint to the second

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level of review; however, when Plaintiff attempted to do so, the mailroom staff denied

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Plaintiff. (Id. at 21.) The mailroom staff specifically denied Plaintiff’s inmate trust

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withdrawal form, citing the $0.00 balance in Plaintiff’s inmate trust account. (Id. at 23.)

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In reality, Plaintiff had a paying job within Centinela and his inmate trust account had

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funds in it. (Id. at 167.) In disallowing Plaintiff to mail his appeal, the mailroom staff,

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according to Plaintiff, denied him the right to exhaust his claim in the administrative

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system. (Id.) Plaintiff believes the mailroom staff is retaliating against Plaintiff for filing

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the inmate grievance forms by not allowing him to mail documents out. (Id.)

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C. Post-conviction evidence

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After Plaintiff was convicted, Plaintiff filed a motion for post-conviction discovery

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for which an attorney was appointed to assist Plaintiff. During the pursuit of this

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discovery, Plaintiff was informed of audio CDs which had not been produced at trial. (Id.
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at 29.) On these audio CDs were those witnesses who had testified against Plaintiff being

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coerced by the interviewing police officers to do so. (Id.) There were three of these audio

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CDs. Plaintiff’s appointed counsel attempted to get the audio CDs to Plaintiff in

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Centinela, but Centinela’s litigation coordinator declined to give the audio CDs to

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Plaintiff. The litigation coordinator cited rules disallowing inmates to have audio CDs in

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his denial of Plaintiff’s request. (Id.) That the audio CDs dealt with Plaintiff’s case was

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irrelevant to the litigation coordinator’s decision. (Id.) Plaintiff argues this denial violated

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his right to due process, right to property, and right to access the courts.

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III. DISCUSSION
Defendants are now before this Court moving to dismiss Plaintiff’s FAC based on

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two grounds: first, Claim One is barred by res judicata; and second, Kernan and

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Madden’s supervisory authority is not sufficient to give rise to liability under Section

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1983. (Doc. 32.) Plaintiff filed an extensive opposition to Defendants’ motion which

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argues vehemently that no portion or defendant named in Plaintiff’s FAC should be

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dismissed. (Doc. 38.)

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A. Legal Standard on Motion to Dismiss

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A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil

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Procedure tests the legal sufficiency of the claims asserted in the complaint. Fed. R. Civ.

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P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The court must accept

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all allegations of material fact pleaded in the complaint as true. Cahill v. Liberty Mut. Ins.

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Co., 80 F.3d 336, 337-38 (9th Cir. 1996). The Court must also construe the allegations in

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favor of the nonmoving party and draw all reasonable inferences from them in favor of

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the nonmoving party. Id. To avoid a Rule 12(b)(6) dismissal, a complaint need not

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contain detailed factual allegations, rather, it must plead “enough facts to state a claim to

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relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). “A

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claim has facial plausibility when the plaintiff pleads factual content that allows the court

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to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). “Where a
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complaint pleads facts that are merely consistent with a defendant’s liability, it stops

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short of the line between possibility and plausibility of entitlement to relief.” Id. at 678,

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(quoting Twombly, 550 U.S. at 557) (internal quotations omitted).

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“[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’

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requires more than labels and conclusions, and a formulaic recitation of the elements of a

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cause of action will not do.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478

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U.S. 265, 286 (1986) (alteration in original)). A court need not accept “legal conclusions”

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as true. Iqbal, 556 U.S. at 678. “[T]o be entitled to the presumption of truth, allegations in

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a complaint or counterclaim may not simply recite the elements of a cause of action, but

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must contain sufficient allegations of underlying facts to give fair notice and to enable the

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opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir.

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2011). Despite the deference the court must pay to the plaintiff’s allegations, it is not

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proper for the court to assume that “the [plaintiff] can prove facts that [he or she] has not

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alleged or that defendants have violated the . . . laws in ways that have not been alleged.”

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Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S.

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519, 526 (1983).

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As a general rule, a court freely grants leave to amend a complaint which has been

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dismissed. Fed. R. Civ. P. 15(a); Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806

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F.2d 1393, 1401 (9th Cir. 1986). However, leave to amend may be denied when “the

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court determines that the allegation of other facts consistent with the challenged pleading

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could not possibly cure the deficiency.” Schreiber Distrib. Co., 806 F.2d at 1401 (citing

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Bonanno v. Thomas, 309 F.2d 320, 322 (9th Cir. 1962)). When a court dismisses a pro se

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litigant’s complaint, the court must provide the plaintiff with a statement of the

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deficiencies in the complaint. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621,

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623-624 (9th Cir. 1988).

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B. Judicial Notice

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Defendants requested the Court take judicial notice of the petitions for writ of

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habeas corpus Plaintiff has previously filed in the California state courts. (Doc. 32-2.) In
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their request, Defendants include the case summary and docket entries for Plaintiff’s

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petition filed in the California Court of Appeal. (Id. at 7-12.) This petition was filed on

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October 20, 2015 and the Court of Appeal recognized the matter as closed on November

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6, 2015. (Id. at 7.) Additionally, Defendants included the same for the Supreme Court of

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California. (Id. at 15-17.) In that court, Plaintiff filed his petition on December 21, 2015,

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and the court recognized the matter as closed on June 29, 2016. (Id. at 15.) Plaintiff

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similarly requested the Court take judicial notice of the actual petitions filed. (Doc. 39;

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see also Doc. 38 at Exhibits 1-3.)

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A court may take judicial notice of its own files and of documents filed in other

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courts for the purpose of determining whether a party’s claims are barred by res judicata.

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See, e.g., Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir.

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2006); Holder v. Holder, 305 F.3d 854, 866 (9th Cir. 2002). In this case, the Court must

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consider whether Plaintiff’s claims are barred by res judicata. Thus, the Court GRANTS

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both Plaintiff’s and Defendants’ requests for judicial notice.

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C. Claim Preclusion

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Defendants argue res judicata is applicable here because Claim One “involve[s] the

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same parties, in the same locations, with the same actions for the same incident.” (Doc.

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32-1 at 5.) Because Plaintiff had previously filed petitions for writ of habeas corpus based

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on defendant Beard’s amending the rules regarding prison libraries, Defendants contend

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Plaintiff is now barred from relitigating this same claim before this Court. Plaintiff, on

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the other hand, argues the previous petitions put forth a significantly different claim than

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Claim One. Additionally, Plaintiff argues he was not allowed to fully and fairly litigate

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his claim raised in his previous petition. (Doc. 38 at 24.)

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Because the prior judgments were issued by state courts, state law on res judicata

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applies. See Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 379-80

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(1985). Under California law, res judicata is “an umbrella term encompassing both claim

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preclusion and issue preclusion.” DKN Holdings LLC v. Faerber, 61 Cal. 4th 813, 823-24

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(2015). “Claim preclusion arises if a second suit involves: (1) the same cause of action
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(2) between the same parties (3) after a final judgment on the merits of the first suit. If

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claim preclusion is established, it operates to bar relitigation of the claim altogether.” Id.

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at 824-25 (citations omitted). This bars not only claims adjudicated but also those which

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could have been brought but were not. Thompson v. Ioane, 11 Cal. App. 5th 1180, 1191

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(2017).

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1. Cause of Action

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While federal courts determine whether two suits involve the same cause of action

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by applying the “same transaction or occurrence” or “common nucleus of operative facts”

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test, California courts do not. Instead, California courts will hold that two suits involve

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the same cause of action when they involve the same “primary right.” Brodheim v. Cry,

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584 F.3d 1262, 1268 (9th Cir. 2009). Under this theory “a ‘cause of action’ is comprised

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of a ‘primary right’ of the plaintiff, a corresponding ‘primary duty’ of the defendant, and

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a wrongful act by the defendant constituting a breach of that duty.” Mycogen v. Monsanto

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Co., 51 P.3d 297, 306 (Cal. 2002). “The most salient characteristic of a primary right is

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that it is indivisible: the violation of a single primary right gives rise to but a single cause

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of action.” Id. Thus, in California, “if two actions involve the same injury to the plaintiff

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and the same wrong by the defendant then the same primary right is at stake even if in the

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second suit the plaintiff pleads different theories of recovery, seeks different forms of

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relief and/or adds new facts supporting recovery.” San Diego Police Officers’ Ass’n v.

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San Diego City Emps. Ret. Sys., 568 F.3d 725, 734 (9th Cir. 2009) (quoting Eichman v.

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Fotomat Corp., 147 Cal. App. 3d 1170 (Ct. App. 1983)). “The critical focus of [the]

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primary rights analysis is the harm suffered.” Brodheim, 584 F.3d at 1268 (citations and

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internal quotation marks omitted). California’s primary rights theory can be complicated,

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and the Ninth Circuit has cautioned against wielding the “primary right brush . . . too

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carelessly” and noted the possibility that “different primary rights may be violated by the

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same wrongful conduct” under certain circumstances. San Diego Police Officers’ Ass’n,

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568 F.3d at 734 (internal quotation marks omitted).

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//
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Here, Defendants assert Claim One is based on the same primary right which was

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previously litigated by Plaintiff in his petitions originally filed in the Superior Court of

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San Diego and pursued all the way up to the California Supreme Court.2 In these

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petitions, Plaintiff argued that various California Government Code sections created state

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law entitlements for prisoners; namely, entitlements to adequate prison libraries and

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procedures concerning the use of those libraries. (Doc. 38-2 at 69.) When defendant

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Beard, named in the petition as well, amended these procedures, Plaintiff asserts he and

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other inmates were deprived of these state law entitlements. (Id.) Plaintiff particularly

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argues he is deprived of these entitlements because of the discontinuation of physical law

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books, the new 30 minute time limit for use of the computers to conduct legal research,

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and the overall shift from Westlaw to Lexis. (Id. at 68.) Plaintiff alleges the deprivations

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have violated Plaintiff’s due process and equal protection rights under both the state and

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federal constitutions. (Doc. 38-1 at 3.)

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In Plaintiff’s current FAC, Plaintiff’s count one alleges the very same thing:

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defendant Beard’s various changes to the procedures concerning the prison libraries

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deprived Plaintiff of his liberty interests in having an adequate prison library and

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adequate access thereto. (Doc. 8 at 5, 11.) While Plaintiff classifies his state law

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entitlements as liberty interests in his current suit, Plaintiff clearly is referencing the same

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California Government Code sections which he asserts give rise to certain rights. (See id.,

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where Plaintiff lists the civil right having been violated as “Due Process Clause of the

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Defendants also argue Claims One and five within Plaintiff’s FAC are the same, and claim five only
serves as a “fleshe[d] out” version of Claim One. (Doc. 32-1 at 3 n.1.) Plaintiff’s claim five in fact
alleges that the preceding four claims (the amendment to prison rules combined with legal mailing
issues and evidentiary disputes) have collectively deprived Plaintiff of the right to access the courts.
(Doc. 8 at 32.) Defendants’ confusion seems to stem from Plaintiff’s recitation of the preceding claims
in the first seven paragraphs of his allegations for claim five. (See id. at 32-33.) However, beginning
with the eighth paragraph, Plaintiff explains the cumulative effect of the allegations and that because of
the alleged deprivations, Plaintiff has been unable to present a “non-frivolous claim” to the courts. (Id. at
33-34.) Thus, the Court finds Defendants’ analysis of Claims One and five together for their preclusion
is incorrect. The Court therefore only analyzes whether or not Plaintiff’s previous suits preclude Claim
One from being litigated again before this Court. The fifth claim will be left untouched by this analysis.
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14th Amendment, state law entitlement “Liberty Interest.”) Ultimately, Plaintiff again

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argues his due process rights under both the state and federal constitutions were violated

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by Defendant Beard’s actions. (Id. at 12.)

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Clearly, Plaintiff here is asserting that Defendant Beard’s actions deprived him of

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his Fourteenth Amendment rights. Also just as clear is that Plaintiff has previously made

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these assertions to the California state court system. (See Docs. 38-1, 38-2.) Because

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these claims are virtually identical, they must be considered the same claim for purposes

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of res judicata. Therefore, this requirement for preclusion has been met.

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2. Parties
For claim preclusion to apply under California law, both actions must have the

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same parties, or there must be privity between the parties in both actions. “Whether

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someone is in privity with the actual parties requires close examination of the

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circumstances of each case.” Rodgers v. Sargent Controls & Aerospace, 136 Cal. App.

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4th 82, 91 (2006). “This requirement of identity of parties or privity is a requirement of

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due process of law.” Clemmer v. Hartford Ins. Co., 22 Cal. 3d 865, 874 (1978), overruled

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on other grounds by Ryan v. Rosenfeld, 2017 Cal. LEXIS 4810, *3 (Cal. June 15, 2017).

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In Plaintiff’s petitions, although the caption does not list any actual defendants

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Plaintiff includes a section in the body of the petitions entitled “PARTIES” wherein

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Plaintiff names himself, Beard, and Madden. (Doc. 38-1 at 6.) Similarly, in the current

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suit, Plaintiff names both Beard and Madden as defendants, among others. (Doc. 8 at 3-

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4.) Therefore, the parties are the same in each of the suits, and this requirement for

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preclusion is also met.

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3. Final Judgment on the Merits
Plaintiff argues Claim One cannot be subject to claim preclusion because his

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petition for writ of habeas corpus was denied summarily by the state courts. (Doc. 38 at

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8-9.) Plaintiff has cited case law which holds a summary denial of a petition for writ of

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habeas corpus is not considered a final ruling on the merits for purposes of claim

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preclusion. (Id. citing Gomez v. Superior Court, 54 Cal. 4th 293, 305 n.6 (2012).)
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Plaintiff goes to lengths to show the denial of his petition at the state level does not

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qualify as a final judgment on the merits because the denial is a summary denial.

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However, regardless of Plaintiff’s arguments to this extent, Plaintiff is incorrect in

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classifying the Court of Appeal’s treatment of his petition as a summary denial. A

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summary denial is a denial of a petition, or other request to the court, without a statement

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of reasons. See Amalgamated Bank v. Superior Court, 149 Cal. App. 4th 1003, 1020 (Ct.

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App. 2007). Thus, when a court issues a summary denial, the denial will consist of one

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simple sentence to the effect of, “The petition is denied.” (See, e.g., Doc. 32-2 at 19,

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where the California Supreme Court issued a summary denial of Plaintiff’s petition.) The

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Court of Appeal here issued a reasoned decision which was included on the docket. (See

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Doc. 32-2 at 9-10.) This decision clearly was based on the merits of the claim. (Id. at 9,

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where the Court of Appeal denied Plaintiff’s request to file documents under seal, and

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then ruled “on the merits” of Plaintiff’s petition.) Contrarily, the Supreme Court did issue

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a summary denial of Plaintiff’s petition. (Id. at 19.) Therein, the court issued a single

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sentence decision on the docket stating, “Petition for writ of H.C. denied.” (Id.) This is

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clearly a summary denial of the petition.

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However, this summary denial does not mean the decision was not on the merits.

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In fact, the United States Supreme Court has held when a “federal claim has been

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presented to a state court and the state court has denied relief, it may be presumed that the

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state court adjudicated the claim on the merits in the absence of an indication of state-law

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procedural principles to the contrary.” Harrington v. Richter, 562 U.S. 86 at 99 (2011). In

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this case, there are no such state law procedural principles which would overcome this

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presumption. Therefore, the decision on Plaintiff’s state court petitions are final

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judgments on their merits.

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Given that all three requirements for claim preclusion have been satisfied,

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Plaintiff’s Claim One may not be relitigated before this Court. Accordingly, Plaintiff’s

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Claim One should be dismissed on the grounds of res judicata. Defendants additionally

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moved the Court to dismiss defendant Beard from the suit. (Doc. 32-1 at 5.) At this point,
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defendant Beard cannot be dismissed from the suit because he is still subject to liability

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for claim five. The Court therefore GRANTS Defendants’ motion to dismiss Claim One

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on res judicata grounds; but DENIES Defendants’ motion to dismiss defendant Beard

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from the suit entirely.

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D. Supervisory Liability

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Defendants next argue that defendants Kernan and Madden should be dismissed

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from the suit because Plaintiff alleges these defendants’ liability arises only from their

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supervisory statuses. (Doc. 32-1 at 6.) Specifically, Defendants contend that in order for

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Plaintiff to properly assign liability to both Kernan and Madden, Plaintiff must show

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these defendants affirmatively participated in the conduct causing the alleged

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deprivations, participated in another’s affirmative acts doing the same, or failed to act to

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remedy the alleged deprivations where action was legally required. (Id. citing Leer v.

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Murphy, 844 F.2d 628, 633 (9th Cir. 1988).) Defendants do not believe Plaintiff has

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shown either Kernan or Madden ever took, or failed to take, any such action. Without any

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such facts, Plaintiff cannot validly assert liability against Kernan or Madden.

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Conversely, Plaintiff argues both Kernan and Madden fall squarely into the third

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method through which Section 1983 liability can be imposed: these defendants were

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made aware of the alleged deprivation through Plaintiff’s inmate appeals, but, despite

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being on notice, the defendants took no action to remedy Plaintiff’s alleged deprivations.

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(Doc. 38 at 27.) Instead, Kernan and Madden “acknowledged that there was a taskforce

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created to correct the issue,” but neither Kernan, Madden, nor the taskforce took any

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action in order to cure the violation. (Id.) Plaintiff contends this failure to act satisfies the

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third way to establish Section 1983 liability, and therefore Kernan and Madden are open

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to liability in this case.

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To state a claim under Section 1983, a plaintiff must allege two essential elements:

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(1) the violation of a right secured by the Constitution and laws of the United States; and

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(2) that the alleged deprivation was committed by a person acting under color of state

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law. West v. Atkins, 487 U.S. 42, 48 (1988). An individual government defendant
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“causes” a constitutional deprivation when he or she (1) “does an affirmative act,

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participates in another’s affirmative acts, or omits to perform an act which he [or she] is

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legally required to do that causes the deprivation”; or (2) “set[s] in motion a series of acts

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by others which the [defendant] knows or reasonably should know would cause others to

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inflict the constitutional injury.” Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978)

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(citations omitted); see also Lacey v. Maricopa County, 693 F.3d 896, 915 (9th Cir.

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2012) (en banc) (same) (citing id.). Allegations regarding causation “must be

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individualized and focus on the duties and responsibilities of each individual defendant

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whose acts or omissions are alleged to have caused a constitutional deprivation.” Leer v.

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Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citations omitted).

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Similarly, a government official acting in a supervisory capacity may be held

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individually liable under Section 1983 if the supervisor’s own misconduct caused a

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constitutional deprivation. OSU Student Alliance v. Ray, 699 F.3d 1053, 1069 (citing

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Iqbal, 556 U.S. at 676); see also Starr, 652 F.3d at 1207 (“We have long permitted

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plaintiffs to hold supervisors individually liable in [Section] 1983 suits when culpable

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action, or inaction, is directly attributed to them.”), cert. denied, 566 U.S. 982 (2012).

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More specifically, a supervisor “causes” a constitutional deprivation if he (1) personally

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participates in or directs a subordinate’s constitutional violation; or (2) the constitutional

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deprivation can otherwise be “directly attributed” to the supervisor’s own culpable action

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or inaction, even though the supervisor was not “physically present when the [plaintiff’s]

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injury occurred.” See Starr, 652 F.3d at 1206-07; see also Crowley v. Bannister, 734 F.3d

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967, 977 (9th Cir. 2013) (supervisor may be held liable under Section 1983 only if there

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is “a sufficient causal connection between the supervisor’s wrongful conduct and the

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constitutional violation”) (citations and internal quotation marks omitted).

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Further, “a supervisor is only liable for constitutional violations of his subordinates

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if the supervisor participated in or directed the violations or knew of the violations and

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failed to act to prevent them.” A supervisor is not liable under Section 1983 solely for the

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acts of another because “there is no respondeat superior liability under [S]ection 1983.”
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Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) citing Ybarra v. Reno Thunderbird

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Mobile Home Village, 723 F.2d 675, 680-81 (9th Cir. 1984).

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Plaintiff specifically alleges Kernan and Madden are liable based on their inaction

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after reviewing Plaintiff’s appeals. (Doc. 38 at 26.) Generally, denying a prisoner’s

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administrative appeal does not cause or contribute to the underlying violation. George v.

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Smith, 507 F.3d 605, 609 (7th Cir. 2007) (quotation marks omitted). See Revis v. Syerson,

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2015 U.S. Dist. LEXIS 17532, *5 (E.D. Cal. 2015); Hernandez v. Cate, 918 F.Supp.2d

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987, 1018 (C.D. Cal.2013) (“Plaintiff cannot state a Section 1983 claim based solely on

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[defendants’] role in the inmate appeals process.”); Lamon v. Junious, 2009 U.S. Dist.

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LEXIS 97003, *4 (E.D. Cal. 2009) (“[T]he involvement of prison personnel in reviewing

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and issuing decisions on Plaintiff’s inmate appeals does not provide a basis for the

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imposition of liability on them for the conduct of others.”). Cf. Reed v. Brackbill, 2008

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U.S. Dist. LEXIS 82345 (D. Nev. July 2, 2008) (defendant found to have personally

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participated by reviewing and signing various grievances filed by plaintiff thereby

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allowing constitutional violations to continue).

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While there are limited circumstances where reviewing an appeal may lead to

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liability, such liability remains based on personal participation. In order to show personal

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participation sufficient to give rise to Section 1983 liability, Plaintiff must show these

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defendants were on notice of the alleged constitutional violations and failed to correct

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them, thereby showing the defendants to have contributed to the violations. Cook v. Cate,

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2014 U.S. Dist. LEXIS 113135, *25 (N.D. Cal. Aug. 14, 2014). In other words, personal

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participation in the alleged violation is required, meaning that defendants Kernan and

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Madden, in their roles as supervisors, must have known of the violations and failed to act.

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Plaintiff has shown this for only one defendant.

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In the memorandum decision on Plaintiff’s second level appeal, Madden described

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his perception of Plaintiff’s claims, stating “you also claim that your due process rights

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and the First and Fourteenth Amendments were violated.” (Doc. 8 at 180.) Although

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Madden was clearly describing Plaintiff’s claim, and not engaging in any legal analysis
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thereof, this memorandum makes clear that Madden was in fact on notice of Plaintiff’s

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alleged constitutional violations.

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Presumably, reviewers at each level of appeal conduct personal reviews of the

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appeals before drafting a letter either granting or rejecting the appeal. This personal

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review of the appeal amounts to personal participation in the Plaintiff’s alleged

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constitutional injury because by conducting a review of Plaintiff’s claims, which clearly

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articulated the constitutional violations, Madden was adequately put on notice of the

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allegations and failed to act in order to remedy such. Therefore, Madden’s failure to act

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caused Plaintiff to further suffer the alleged violation. Cook, 2014 U.S. Dist. LEXIS

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113135, *25. Had these reviews recognized the constitutional violations as such, Madden

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could have sufficiently remedied Plaintiff’s injuries. However, Madden took no such

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action. This failure to take action fulfills the requirement for Section 1983 liability to

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arise by knowing of a constitutional violation and failing to provide a remedy thereto.

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Contrarily, Kernan has been sued in his capacity as the Secretary of CDCR. (Id. at

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4.) Plaintiff, however, presented no facts to indicate Kernan personally participated in or

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directed Plaintiff’s alleged constitutional violation. In fact, Plaintiff presents no facts

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showing Kernan was ever even aware of Plaintiff’s claim before Plaintiff filed the present

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suit. Kernan was not involved in the withholding of the audio CDs from Plaintiff, nor was

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Kernan involved in the grievance process that followed this withholding. Instead,

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Plaintiff alleges Kernan is liable because Kernan, as well as Madden, was “in a position

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to correct the violation and ha[s] failed to do so, thus establishing [his] liability. . . .”

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(Doc. 38 at 27.) Without showing Kernan had knowledge and therefore was on notice of

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Plaintiff’s alleged constitutional violation, Plaintiff cannot properly assert Kernan had a

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responsibility to remedy the alleged deprivation. It follows then that Kernan cannot be

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liable for Plaintiff’s alleged deprivation.

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Accordingly, the Court GRANTS Defendants’ motion as to defendant Kernan;

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however, the Court DENIES Defendants’ motion as to defendant Madden.

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//
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IV. CONCLUSION

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This Report and Recommendation is submitted to the Honorable Janis L.

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Sammartino, United States District Judge, pursuant to 28 U.S.C. § 636(b)(1) and Local

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Civil Rule 72.1(c)(1)(c) of the United States District Court for the Southern District of

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California. For the reasons outlined above, IT IS HEREBY RECOMMENDED that the

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Court issue an Order: (1) approving and adopting this Report and Recommendation, and

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(2) directing that Judgment be entered GRANTING IN PART the Motion to Dismiss.

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Any party may file written objections with the Court and serve a copy on all parties on or

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before May 14, 2018. The document should be captioned “Objections to Report and

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Recommendation.” Any reply to the Objections shall be served and filed on or before

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May 21, 2018. The parties are advised that failure to file objections within the specific

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time may waive the right to appeal the district court’s order. Martinez v. Ylst, 951 F.2d

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1153, 1157 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated: April 26, 2018

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