Throop v. Secretary of Corrections et al, No. 3:2008cv02109 - Document 48 (S.D. Cal. 2010)
Court Description: ORDER granting in part and denying in part 34 Defendants' Motion to Dismiss. For the reasons stated herein, the Court grants in part and denies in part Defendants' Motion to Dismiss Plaintiff's First Amended Complaint. Plaintiff 9;s retaliation claim against Defendants Scribner and Ochoa are permitted to proceed, however, the Court Dismisses all other claims. Plaintiff is Granted forty-five days leave from the date this Order is "Filed" in which to file a Second Am ended Complaint which cures all the deficiencies of pleading stated herein. Further, if Plaintiff's Amended Complaint fails to state a claim upon which relief may be granted, it may be dismissed without further leave to amend. Signed by Judge Michael M. Anello on 8/27/2010. (All non-registered users served via U.S. Mail Service)(leh)
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Throop v. Secretary of Corrections et al Doc. 48 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 EDWARD ANTHONY THROOP, CASE NO. 08CV2109-MMA (CAB) Plaintiff, 12 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS vs. 13 14 SECRETARY OF CORRECTIONS, et al., 15 [Doc. No. 34] Defendants. 16 Plaintiff Edward Anthony Throop, a state prisoner proceeding pro se and in forma pauperis, 17 filed the instant action for alleged violations of his civil rights pursuant to 42 U.S.C. § 1983. (Doc. No. 18 1.) On November 30, 2009, Plaintiff filed a first amended complaint (“FAC”). (Doc. No. 32.) On 19 January 4, 2010, Defendants M. Bourland, M. Cate, E. Fischer, J. Gentry, R. Nelson, Jr., T. Ochoa, 20 R. Parilla, M. Ruff, L. Scribner, K. Shomura, G. Stratton, M. Tamayo, and J. Tyree filed a motion to 21 dismiss the FAC. (Doc. No. 34.) On March 19, 2010, Plaintiff filed an opposition to Defendants’ 22 motion (Doc. No. 39), and on August 4, 2010, Defendants filed a reply in support of their motion to 23 dismiss (Doc. No. 47). For the reasons set forth herein, the Court GRANTS IN PART and DENIES 24 IN PART Defendants’ motion to dismiss. 25 /// 26 /// 27 /// 28 /// -1- 08CV2109-MMA (CAB) Dockets.Justia.com 1 BACKGROUND 2 Plaintiff’s claims arise out of events between 2006 and 2008 that resulted in and are related 3 to his placement and retention in the Security Housing Unit (“SHU”) at Calipatria prison on the basis 4 of his association with a prison gang, the Mexican Mafia (“EME”). In 2003, Plaintiff was transferred 5 from Calipatria prison to the SHU at Tehachapi Prison after he received disciplinary charges for an 6 altercation with prison officials at Calipatria. Plaintiff alleges that he was then transferred back to 7 Calipatria prison as a pre-trial detainee so he could face felony charges for the in-custody offense of 8 battery on a peace officer in Imperial County Superior Court. (FAC at ¶ 44.) Plaintiff alleges that 9 while he was completing his disciplinary term in the Administrative Segregation Unit (“ASU”) at 10 Calipatria, Defendants began the process of validating Plaintiff as an associate of EME. (Id. at ¶ 45.) 11 Plaintiff alleges that after the jury reached its verdict, prison officials promised to not pursue his 12 indeterminate placement in SHU as a validated gang member. (Id. at ¶ 46.) Plaintiff alleges that at two 13 October 2006 hearings, the Institutional Classification Committee panel elected to release Plaintiff 14 to General Population (“GP”) and transfer him to another prison facility. (Id. at ¶ 49.) Plaintiff alleges, 15 however, that on November 16, 2006, Defendants cancelled Plaintiff’s transfer to GP and ordered that 16 he be placed into the SHU at Calipatria for an indeterminate amount of time based upon his alleged 17 association with EME. (FAC at ¶ 60.) Plaintiff asserts that the decision to place him in SHU was based 18 a dubious gang validation process in violation of the rights guaranteed to him under the Due Process 19 Clause of the Fourteenth Amendment. (FAC at ¶¶ 125–127.) Plaintiff also alleges that Defendants 20 acted in retaliation for Plaintiff’s complaints of misconduct against Calipatria officials that he alleged 21 in prison grievances filed in 2004 and a subsequent civil rights complaint filed in this Court in October 22 2006. (Id. at ¶¶ 50–53.) 23 Plaintiff also contends that he is unable to leave SHU until he agrees to debrief. (Id. at ¶ 64.) 24 Debriefing is a process by which an inmate denounces his membership in a prison gang and provides 25 information to prison officials about gang activity. (Id. at ¶¶ 62–68, 109.) Plaintiff asserts that some 26 of the source items used to validate him as an associate of EME are directly related to the charges for 27 which Plaintiff was a pretrial detainee, and for which he has since been convicted and is appealing. 28 Plaintiff contends that in order to debrief, he will be required to discuss these particular source items, -2- 08CV2109-MMA (CAB) 1 thereby forcing him to waive his Fifth Amendment right against self-incrimination, as well as his Sixth 2 Amendment right to counsel. (Id. at ¶¶ 64–67, 73, 108–109.) Plaintiff also alleges generally that the 3 process of debriefing and his placement in SHU constitute cruel and unusual punishment in violation 4 of the Eighth Amendment. (FAC at ¶¶ 112–120.) 5 6 LEGAL STANDARD I. 7 Federal Rule of Civil Procedure 12(b)(6) – Motion to Dismiss A complaint survives a motion to dismiss if it contains “enough facts to state a claim to 8 relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The 9 court reviews the contents of the complaint, accepting all factual allegations as true, and drawing 10 all reasonable inferences in favor of the nonmoving party. Knievel v. ESPN, 393 F.3d 1068, 1072 11 (9th Cir. 2005). Notwithstanding this deference, the reviewing court need not accept “legal 12 conclusions” as true. Ashcroft v. Iqbal, -- U.S. -- , 129 S. Ct. 1937, 1949 (2009). Moreover, it is 13 improper for a court to assume “the [plaintiff] can prove facts that [he or she] has not 14 alleged.”Associated General Contractors of California, Inc. v. California State Council of 15 Carpenters, 459 U.S. 519, 526 (1983). Accordingly, a reviewing court may begin “by identifying 16 pleadings that, because they are no more than conclusions, are not entitled to the assumption of 17 truth.” Ashcroft, supra, 129 S. Ct. at 1950. 18 “When there are well-pleaded factual allegations, a court should assume their veracity and 19 then determine whether they plausibly give rise to an entitlement to relief.” Id. A claim has “facial 20 plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 21 inference that the defendant is liable for the misconduct alleged.” Id. at 1949. “The plausibility 22 standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that 23 a defendant has acted unlawfully.” Id. “Where a complaint pleads facts that are ‘merely consistent 24 with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of 25 entitlement to relief.’” Id. (citing Twombly, 550 U.S. at 557). 26 II. 27 28 Pro Se Litigants Pro se litigants “must be ensured meaningful access to the courts.” Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc). The Ninth Circuit has declined, however, to ensure that -3- 08CV2109-MMA (CAB) 1 district courts advise pro se litigants of rule requirements. See Jacobsen v. Filler, 790 F.2d 1362, 2 1364-67 (9th Cir. 1986) (“Pro se litigants in the ordinary civil case should not be treated more 3 favorably than parties with attorneys of record . . . it is not for the trial court to inject itself into the 4 adversary process on behalf of one class of litigant.”); see also King v. Atiyeh, 814 F.2d 565, 567 5 (9th Cir. 1986) (“Pro se litigants must follow the same rules of procedure that govern other 6 litigants.”). When the plaintiff is appearing pro se, the court must construe the pleadings liberally 7 and afford the plaintiff any benefit of the doubt. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 8 2001); Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). In giving 9 liberal interpretation to a pro se complaint, however, the court is not permitted to “supply essential 10 elements of the claim that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 11 673 F.2d 266, 268 (9th Cir. 1982). DISCUSSION 12 13 I. 14 Monetary damages against Defendants in their official capacities Defendants first move to dismiss Plaintiff’s claims to the extent he seeks monetary 15 damages from Defendants in their official capacities. It is well-established that the Eleventh 16 Amendment bars a prisoner’s Section 1983 claims for monetary damages against state actors sued 17 in their official capacities. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70–71 (1989). In 18 his opposition, Plaintiff concedes that he is only seeking damages against Defendants Tamayo, 19 Tyree, Parilla, and Nelson in their individual capacities, and that he does not seek damages from 20 any Defendants in their official capacities. (Pl.’s Opp’n at 18.) Based on Plaintiff’s concession and 21 the fact that claims for damages against individuals in their official capacities are barred by the 22 Eleventh Amendment, the Court GRANTS Defendants’ motion to dismiss and DISMISSES all 23 claims for damages against all Defendants in their official capacities with prejudice and without 24 leave to amend. 25 II. 26 Retaliation Plaintiff asserts that his SHU confinement was retaliation for a prior protected activity. 27 (FAC at ¶¶ 50–53, 104–105.) The Constitution provides protections against “deliberate retaliation” 28 by prison officials for an inmate exercising his right to petition for redress of grievances. -4- 08CV2109-MMA (CAB) 1 Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). Because retaliation by 2 prison officials may chill an inmate’s exercise of his legitimate First Amendment rights, such 3 conduct is actionable even if it would not otherwise rise to the level of a constitutional violation. 4 Thomas v. Carpenter, 881 F.2d 828, 830 (9th Cir. 1989). 5 In order to state a claim for retaliation, a plaintiff suing prison officials for retaliation 6 pursuant to Section 1983 must allege sufficient facts to establish the following five elements: (1) a 7 state actor took some adverse action against an inmate, (2) because of (3) that prisoner’s protected 8 conduct, and that such action (4) chilled the plaintiff’s exercise of his First Amendment rights and 9 (5) was not narrowly tailored to advance a legitimate correctional goal. See Rhodes v. Robinson, 10 380 F.3d 1123, 1130 (9th Cir. 2004) (citing Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000)). 11 Here, Plaintiff alleges that he had been approved for a transfer from SHU to GP, but that 12 after he filed a civil rights complaint and mailed the complaint and a request for injunctive relief to 13 Defendant Scribner, Defendants cancelled his transfer. (FAC at ¶¶ 50–52.) Defendants assert that 14 Plaintiff’s retaliation claim is subject to dismissal because he has not alleged facts to support the 15 following elements: (1) chilling of Plaintiff’s protected activities; (2) lack of a legitimate 16 correctional goal; and (3) causation. (Defs.’ Mot. to Dismiss at 3:20–4:28.) 17 Defendants contend that Plaintiff’s retaliation claim fails because he has not alleged any 18 facts regarding harm or that Defendants’ conduct otherwise chilled his protected activities. “[A]ny 19 retribution visited upon a prisoner due to his decision to engage in protected conduct is sufficient 20 to ground a claim of unlawful First Amendment retaliation—whether such detriment ‘chills’ the 21 plaintiff’s exercise of his First Amendment rights or not.” Rhodes v. Robinson, 408 F.3d 559, 22 567–68 (9th Cir. 2005). Thus, “[A] retaliation claim may assert an injury no more tangible than a 23 chilling effect on First Amendment rights.” Vernon, 255 F.3d at 1127 (emphasis added). However, 24 “[w]ithout alleging a chilling effect, a retaliation claim without allegation of other harm is not 25 actionable.” Id. Plaintiff asserts in his opposition that he sufficiently alleged that Defendants’ 26 conduct chilled his protected activity. (Pl.’s Opp’n at 4.) Plaintiff relies on one paragraph in his 27 FAC, in which he states that he is no longer able to socialize with other inmates in SHU “under 28 arbitrary threat of new gang association allegations.” (FAC at ¶ 15.) The inquiry, however, is -5- 08CV2109-MMA (CAB) 1 centered on whether Defendants’ conduct has chilled Plaintiff from exercising his right to file or 2 pursue his prison grievances. The Court finds this allegation insufficient to allege that his rights 3 were chilled. 4 As already noted, however, an allegation of harm, rather than of chill, may be a sufficient 5 basis for a claim of retaliation. Rhodes, supra, 408 F.3d at 569–70. Here, Plaintiff alleges that 6 Defendants cancelled his transfer to GP as a result of his protected activity. The Court finds that 7 cancelling a transfer to GP and retaining a prisoner in SHU is sufficient harm to state a claim for 8 retaliation. See, e.g., Rhodes, 408 F.3d at 568 (arbitrary confiscation and destruction of property, 9 initiation of a prison transfer, and assault in retaliation for filing grievances); Bruce v. Y1st, 351 10 F.3d 1283, 1288 (9th Cir. 2003) (retaliatory validation as a gang member for filing grievances); 11 Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997) (retaliatory issuance of false rules violation and 12 subsequent finding of guilt); Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (retaliatory prison 13 transfer and double-cell status); Rizzo v. Dawson, 778 F.2d 527, 530–32 (9th Cir. 2985) (finding 14 that plaintiff stated a retaliation claim when he alleged he was removed from a vocational class). 15 Thus, the Court finds Defendants’ contention that Plaintiff has not adequately alleged harm is 16 without merit. 17 Second, Defendants contend that Plaintiff has failed to allege that the cancellation of his 18 transfer was not grounded in any legitimate, penological goal. Plaintiff’s allegations belie 19 Defendants’ contention. Plaintiff frequently alleges that the cancellation of his transfer had no 20 legitimate penological purpose. (See, e.g., FAC at ¶ 105.) The Court finds these allegations 21 sufficient. 22 Finally, Defendants contend that Plaintiff has failed to allege facts to establish the 23 causation element of his retaliation claim. To some extent, the Court agrees. Plaintiff states that he 24 mailed the request for injunctive relief to Defendant Scribner, “which Defendant Ochoa later wrote 25 a letter in response that was mailed to Plaintiff.” (FAC at ¶ 52.) While Plaintiff does not allege 26 who actually cancelled his transfer, Plaintiff alleges that the decision to cancel his transfer 27 occurred within days of him mailing the request for injunctive relief. (Id. at ¶¶ 49–50.) Timing can 28 properly be considered as circumstantial evidence of retaliatory intent. Pratt v. Rowland, 65 F.3d -6- 08CV2109-MMA (CAB) 1 802, 808 (9th Cir. 1994). In addition to the suspicious timing, Plaintiff alleges facts to sufficiently 2 link Defendants Scribner and Ochoa to the cancellation of his transfer. The Court, however, finds 3 no basis in the FAC for Plaintiff to maintain his retaliation claim against any other Defendants. 4 Plaintiff has not alleged any facts to suggest that any other Defendant played any role in the 5 cancellation of his transfer. Accordingly, the Court GRANTS IN PART Defendant’s motion and 6 DISMISSES Plaintiffs’ retaliation claim against all Defendants except Defendants Scribner and 7 Ochoa with leave to amend.1 8 III. 9 Violation of Fifth Amendment - Right Against Self-Incrimination Plaintiff’s third cause of action asserts in part that Defendants violated Plaintiff’s Fifth 10 Amendment right against self-incrimination. (FAC at ¶¶ 108–109.) Plaintiff asserts that he was 11 retained in SHU because of his status as a validated gang member. Plaintiff asserts that the only 12 way to be released into GP is to debrief, which he asserts requires an inmate to implicate himself 13 as a gang member and inform prison authorities of illegal activities done by other gang members. 14 (Id. at ¶¶ 62–68, 109.) Plaintiff’s argument is two-fold. First, he contends that debriefing as a 15 general matter violates the privilege against self-incrimination. Second, he contends that 16 debriefing violates the privilege against self-incrimination in his case because he was a pre-trial 17 detainee at the time of validation and the source items used to validate him as a gang member were 18 items he would be forced to discuss during debriefing, which would incriminate him in his 19 criminal case. (FAC at ¶ 65, 73; Pl.’s Opp’n at 6–9.)2 20 21 The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. Courts have consistently held that the 22 1 23 24 25 26 27 28 In his opposition, Plaintiff appears to contend that his retaliation claim is based on two acts. First, he contends that the gang validation itself was retaliatory conduct. Second, he contends that the cancellation of his transfer to GP was retaliatory conduct. (Pl.’s Opp’n at 3.) Plaintiff, however, fails to make this distinction in his FAC. It appears from how Plaintiff has pled his cause of action, Plaintiff’s retaliation claim is based solely on Defendants’ cancellation of Plaintiff’s transfer to GP. Should Plaintiff attempt to amend his retaliation claim to clarify that he is asserting his claim on the basis of the gang validation as well, Plaintiff must allege facts that support the element of causation. Specifically, Plaintiff must allege facts that Defendants’ gang validation was retaliation for Plaintiff’s prior protected activity. As Plaintiff’s allegations are currently pleaded, the Court finds no basis to infer that the gang validation was retaliatory for Plaintiff’s protected activity. 2 Although it is not entirely clear, it appears from the FAC that Plaintiff was convicted on only some of the charges against him. Plaintiff is currently appealing his criminal conviction. -7- 08CV2109-MMA (CAB) 1 process of debriefing does not implicate the Fifth Amendment because “the primary purposes of 2 debriefing are to test the sincerity of the inmate’s gang renunciation and to gather information 3 about gang activities.” Medina v. Gomez, 1997 U.S. Dist. LEXIS 12208, at *16 (N.D. Cal. Aug. 4 14, 1997). Moreover, inmates are not advised of their Miranda rights during debriefing. Thus, any 5 information obtained from the inmate could not be used against him in a criminal proceeding. See 6 Castaneda v. Marshall, 1997 U.S Dist. LEXIS 4612, at *23–*24 (N.D. Cal. March 10, 1997) 7 (citing Miranda v. Arizona, 384 U.S. 436, 444 (1966)); Taylor v. Best, 746 F.2d 220, 224 (4th Cir. 8 1984). The Court also notes that Plaintiff alleges that he cannot debrief because he has no 9 knowledge of any EME activities. (FAC at ¶ 68.) Thus, he has no standing to complain that the 10 debriefing process is a violation of his constitutional rights. See Stoianoff v. Montana, 695 F.2d 11 1214, 1223–24 (9th Cir. 1983). 12 Finally, it is not clear to the Court that Plaintiff has suffered injury to allege his Fifth 13 Amendment claim. Plaintiff merely asserts that he has a “reasonable expectation that initiating a 14 debriefing interview conducted by defendants agents will involve some or all aspects of that in- 15 custody offense because that incident was reported in source item No.1 . . . .” (FAC at ¶ 65.) 16 Plaintiff has not alleged that he attempted to debrief and was asked questions about the underlying 17 criminal charges. Nor has Plaintiff alleged any other basis for his “expectation” that Defendants 18 will inquire about the subject matter of his criminal conviction. It appears to the Court that 19 Plaintiff’s “expectation” is based on pure speculation. In order to establish Article III standing, a 20 plaintiff must show (1) he has suffered an “injury in fact” that is (a) concrete and particularized 21 and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the 22 challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the 23 injury will be redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Envtl. 24 Servs., Inc., 528 U.S. 167, 180-81 (2000). While Plaintiff attempts to characterize his injury as his 25 retention in SHU, the Court finds that this injury is traceable only to Plaintiff’s conduct, not 26 Defendants’ conduct. Plaintiff has not alleged any facts to demonstrate that debriefing would lead 27 to actual or imminent harm. Moreover, Plaintiff’s assertion that self-incrimination would result is 28 mere conjecture because he offers no facts upon which he bases his claim that he would be -8- 08CV2109-MMA (CAB) 1 required to incriminate himself. Accordingly, the Court GRANTS Defendants’ motion and 2 DISMISSES Plaintiff’s cause of action under the Fifth Amendment with leave to amend. 3 IV. 4 Violation of Sixth Amendment - Right to Counsel Plaintiff’s third cause of action also asserts that Defendants violated Plaintiff’s Sixth 5 Amendment right to counsel. (FAC at ¶¶ 108–109.) Plaintiff’s claim is essentially the same as his 6 claim under the Fifth Amendment. Plaintiff contends that requiring him to debrief would implicate 7 his right to counsel because the information he would be forced to divulge relates to the criminal 8 charges that are currently on appeal, for which he has appointed counsel. (Id. at ¶¶ 64–67; 9 108–109.) 10 The Sixth Amendment guarantees that “[in] all criminal prosecutions, the accused shall 11 enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. 12 “[C]ases have long recognized that the right to counsel attaches only at or after the initiation of 13 adversary judicial proceedings against the defendant.” United States v. Gouveia, 467 U.S. 180, 188 14 (1984). The Supreme Court has held that because the right to counsel applies only in judicial 15 proceedings, the right does not extend to prison disciplinary proceedings. Baxter v. Palmigiano, 16 425 U.S. 308, 315 (1976). Moreover, the Ninth Circuit has refused to extend the right to counsel to 17 administrative segregation. United States v. Mills, 810 F.2d 907, 909 (9th Cir. 1987) (citing United 18 States v. Gouveia, 467 U.S. 180 (1984)). It is true that Plaintiff does have the right to counsel on 19 appeal. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). As already noted, however, Plaintiff has 20 not identified any facts that support his “expectation” that he will be required to divulge any 21 information related to his criminal charges. Moreover, just like any information disclosed that 22 incriminates Plaintiff would be suppressed in an attempt of subsequent use under Miranda, that 23 information would also be suppressed under the Massiah doctrine if authorities attempted to use it 24 against Defendant in his criminal action. See Massiah v. United States, 377 U.S. 201, 205 (1964). 25 Finally, as already noted, Plaintiff has no standing to complain that the debriefing process is a 26 violation of his constitutional rights because he contends he has no knowledge of any EME 27 activities. For these reasons, the Court GRANTS Defendants’ motion and DISMISSES Plaintiff’s 28 claim under the Sixth Amendment with leave to amend. -9- 08CV2109-MMA (CAB) 1 2 V. Violation of Eighth Amendment - Cruel and Unusual Punishment Plaintiff alleges that Defendants violated his Eighth Amendment right to be free from cruel 3 and unusual punishment by: (1) placing Plaintiff in SHU “despite their knowledge that plaintiff is 4 not an active member or associate of EME” and only allowing him to leave SHU upon debriefing; 5 (2) using debriefing as a means to physically coerce inmates to volunteer information; (3) being 6 deliberately indifferent to the dangers of debriefing; and (4) exposure to inhumane conditions in 7 SHU. (FAC at ¶¶ 112–120.) 8 9 The Eighth Amendment prohibits the imposition of cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 102 (1976). As a general matter, prison conditions do not violate the 10 Eighth Amendment unless they amount to “unquestioned and serious deprivations of basic human 11 needs” or the “minimal civilized measure of life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 12 347 (1981); Wilson v. Seiter, 501 U.S. 294, 298-300 (1991). “After incarceration, only the 13 unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden 14 by the Eight Amendment. To be cruel and unusual punishment, conduct that does not purport to be 15 punishment at all must involve more than ordinary lack of due care for the prisoners’ interest or 16 safety.” Whitely v. Albers, 475 U.S. 312, 319 (1986) (internal quotations and citations omitted). 17 A prisoner claiming an Eighth Amendment violation must show: (1) the deprivation he 18 suffered was “objectively, sufficiently serious;” and (2) prison officials were deliberately 19 indifferent to his safety in allowing the deprivation to take place. Farmer v. Brennan, 511 U.S. 20 825, 834 (1994). Additionally, in order to show causation between the deliberate indifference and 21 the Eighth Amendment deprivation, a prisoner must demonstrate the individual defendant was in a 22 position to take steps to avert the harm, but failed to do so intentionally or with deliberate 23 indifference. Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). This inquiry requires “a very 24 individualized approach which accounts for the duties, discretion, and means of each defendant.” 25 Id. at 633–34. Thus, a prison official may be liable under the Eighth Amendment for denying 26 humane conditions of confinement only if he knows that an inmate faces a substantial risk of harm 27 and disregards that risk by failing to take reasonable measures to abate it. Farmer, 511 U.S. at 28 837–45. - 10 - 08CV2109-MMA (CAB) 1 As a whole, Plaintiff’s allegations are insufficient to support a claim that Defendants’ 2 actions resulted in the infliction of cruel and unusual punishment. Specifically, the FAC contains 3 no facts which indicate that Plaintiff was deprived of life’s necessities or that he was otherwise 4 subjected to a “substantial risk of harm.” Id. First, Plaintiff’s contention that the option of 5 debriefing is cruel and unusual punishment is without merit. As already noted, debriefing is a 6 voluntary option in order to receive more lenient treatment. Plaintiff does not identify how the 7 process of debriefing to receive more lenient treatment deprives Plaintiff of life’s necessities or 8 otherwise constitutes cruel and unusual punishment. The Court notes that Plaintiff’s claim that 9 debriefing violates his Eighth Amendment rights appears to hinge in part on his Fifth And Sixth 10 Amendment arguments. But as already explained, Plaintiff has not adequately alleged violations of 11 either the Fifth or Sixth Amendment. The compelled disclosure of information, alone, is not 12 sufficient to state a claim for cruel and unusual punishment. Plaintiff also contends that 13 Defendants are deliberately indifferent to the dangers of debriefing. In particular, Plaintiff takes 14 issue with what will become of him if he debriefs. (See, e.g., FAC at ¶¶ 71–72.) The mere 15 possibility that Plaintiff might be attacked or placed in an undesirable housing unit if he chooses to 16 debrief, even if Defendants encouraged him to debrief, cannot, by itself, form the basis of an 17 Eighth Amendment claim. 18 Finally, Plaintiff asserts that his assignment to SHU alone constituted cruel and unusual 19 punishment. In particular, Plaintiff asserts that by placing him in SHU, Defendants deny Plaintiff 20 privileges afforded to inmates housed in GP. (FAC at ¶¶ 98–100.) Plaintiff also identifies various 21 psychological effects he has and will continue to suffer from as a result of his confinement in 22 SHU. The simple placement and retention of a plaintiff in segregated housing, even for an 23 indeterminate period of time, does not in and of itself implicate the Eighth Amendment. Toussaint 24 v. Yockey, 722 F.2d 1490, 1494 n.6 (9th Cir. 1984). Moreover, “[t]he Eighth Amendment simply 25 does not guarantee that inmates will not suffer some psychological effects from incarceration or 26 segregation.” Madrid v. Gomez, 889 F. Supp. 1146, 1264 (N.D. Cal. 1995). The Court, however, in 27 Madrid held that inmates who are mentally ill, as well as inmates with borderline personality 28 disorders, brain damage or mental retardation, impulse-ridden personalities, or a history of prior - 11 - 08CV2109-MMA (CAB) 1 psychiatric problems or chronic depression, could potentially establish a claim under the Eighth 2 Amendment for indefinite confinement in SHU. 889 F. Supp. at 1265–1266. As the Court 3 explained, subjecting individuals to conditions that are ‘very likely’ to render them psychotic or otherwise inflict a serious mental illness or seriously exacerbate an existing mental illness can not be squared with evolving standards of humanity or decency, especially when certain aspects of those conditions appear to base very little relation to security concerns. 4 5 6 7 Id. at 1266. Plaintiff asserts that he was prescribed psychotropic medication for symptoms of 8 “physical and mental pain and suffering” when he was incarcerated in another prison’s SHU. (FAC 9 at ¶ 102.) Plaintiff, however, provides no facts regarding his mental health and the effect of the 10 medication on his conditions. Indeed, it appears that Plaintiff’s asserted mental pain and suffering 11 is more the result of his consternation over the consequences of debriefing verses the 12 consequences of remaining in SHU rather than his placement in SHU itself. Plaintiff simply fails 13 to allege any facts to demonstrate that his placement in SHU threatens his personal safety or 14 exposes him to a substantial risk of serious harm. Accordingly, the Court GRANTS Defendants’ 15 motion to dismiss and DISMISSES Plaintiff’s Eighth Amendment claims with leave to amend. 16 VI. 17 Violation of Fourteenth Amendment - Equal Protection Clause Plaintiff’s tenth cause of action asserts that Defendants denied Plaintiff equal protection by 18 “intentionally discriminating against him on the basis of his racial group.” (FAC at ¶¶ 123–124.) 19 The Equal Protection Clause requires that persons who are similarly situated by treated alike. City 20 of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985). A plaintiff may establish 21 an equal protection claim by showing that the defendant has intentionally discriminated on the 22 basis of the plaintiff’s membership in a protected class, Lee v. City of Los Angeles, 250 F.3d 668, 23 686 (9th Cir. 2001), or by showing that similarly situated individuals were intentionally treated 24 differently without a rational relationship to a legitimate state purpose, Village of Willowbrook v. 25 Olech, 528 U.S. 562, 564 (2000). 26 Defendants assert that Plaintiff’s equal protection claim should be dismissed because 27 Plaintiff fails to allege that Defendants carried the requisite subjective intent or treated Plaintiff 28 differently because of his race. (Defs.’ Mot. to Dismiss at 9:27–10:6.) The Court agrees. Although - 12 - 08CV2109-MMA (CAB) 1 Plaintiff alleges that his right to equal protection was violated, the FAC is devoid of any facts that 2 would support an equal protection claim. Accordingly, the Court GRANTS Defendants’ motion to 3 dismiss and DISMISSES Plaintiff’s equal protection claim with leave to amend. The Court notes 4 that if Plaintiff attempts to amend this claim, he must allege facts that he was treated differently 5 because of his race, not because of his status as an active gang member. 6 VII. 7 Violation of Fourteenth Amendment - Due Process Clause Plaintiff asserts that Defendants violated the rights guaranteed to him under the Due 8 Process Clause of the Fourteenth Amendment by placing him in SHU on the basis of a dubious 9 gang validation. (FAC at ¶¶ 125–127.) Defendants assert that Plaintiff’s claim must be dismissed 10 because he has not demonstrated that his confinement in SHU implicated a liberty interest 11 protected by the Due Process Clause, and even if it did, Plaintiff’s gang validation satisfied due 12 process. (Defs.’ Reply at 4:8–5:10.) 13 “Typically, administrative segregation in and of itself does not implicate a protected liberty 14 interest.” Serrano v. Francis, 345 F.3d 1071, 1078 (9th Cir. 2003); May v. Baldwin, 109 F.3d 557, 15 565 (9th Cir. 1997) (administrative segregation falls within the terms of confinement originally 16 contemplated by a sentence). A prisoner generally has no liberty interest in avoiding transfer to 17 more restrictive conditions of confinement, such as a transfer from the general population to 18 segregation, unless he can show an atypical and significant hardship in relation to the ordinary 19 incidents of prison life. Sandin v. Conner, 515 U.S. 472, 484 (1995). In Sandin, the Supreme Court 20 considered three factors in determining whether the plaintiff possessed a liberty interest in 21 avoiding disciplinary segregation: (1) the disciplinary versus discretionary nature of the 22 segregation; (2) the restricted conditions of the prisoner’s confinement and whether they amounted 23 to a “major disruption to his environment” when compared to those shared by prisoners in the 24 general population; and (3) the possibility of whether the prisoner’s sentence was lengthened by 25 his restricted custody. 515 U.S. at 486–87. 26 Courts have found the existence of atypical and significant hardships in a very limited 27 scope of cases. See, e.g., Wilkinson v. Austin, 545 U.S. 209, 221–24 (2005) (holding inmates’ 28 liberty interests were implicated by their indefinite confinement in highly restrictive “supermax” - 13 - 08CV2109-MMA (CAB) 1 prison, where the inmates were deprived of almost all human contact and were disqualified from 2 parole consideration); Serrano v. Francis, 345 F.3d 1071, 1078–79 (9th Cir. 2003) (placing 3 disabled inmate, without his wheelchair, in segregation unit not equipped for disabled persons 4 gave rise to a liberty interest); Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003) (directing 5 district court to consider two-year duration of administrative segregation in determining whether 6 placement imposed atypical and significant burden). “A liberty interest does not arise even when 7 administrative segregation imposes severe hardships, such as denial of access to vocational, 8 educational, recreational, and rehabilitative programs, restrictions on exercise, and confinement to 9 a cell for lengthy periods of time.” Toussaint v. McCarthy, 801 F.2d 1080, 1092 (9th Cir. 1986) 10 11 (internal quotations omitted). Here, Plaintiff has not alleged that his confinement in administrative segregation imposes a 12 significant and atypical burden. While he notes general hardships he suffers as a result of his 13 confinement in SHU, these types of burdens do not give rise to a liberty interest. Id. Thus, Plaintiff 14 has failed to establish a liberty interest protected by the Constitution because he has not alleged, as 15 he must under current law, facts related to the conditions or consequences of his disciplinary 16 segregation which show “the type of atypical, significant deprivation [that] might conceivably 17 create a liberty interest.” Sandin, 515 U.S. at 486. Accordingly, the Court GRANTS Defendants’ 18 motion to dismiss and DISMISSES Plaintiff’s due process claim with leave to amend. 19 VIII. Conspiracy 20 Plaintiff’s fourth cause of action alleges that Defendants Gentry, Tyree, Parilla, Stratton, 21 Tamayo and Does conspired to deprive Plaintiff of his constitutional rights. (FAC at ¶¶ 110-111.) 22 To prove a conspiracy in violation of 42 U.S.C. § 1983, plaintiff must allege facts to establish: (1) 23 an agreement between the defendants to deprive the plaintiff of a constitutional right; (2) an overt 24 act in furtherance of the conspiracy; and (3) a constitutional violation. Gilbrook v. City of 25 Westminster, 177 F.3d 839, 856 (9th Cir. 1999); Mendocino Environmental Center v. Mendocino 26 County, 192 F.3d 1283, 1301 (9th Cir. 1999). “Vague and conclusory allegations of official 27 participation in civil rights violations are not sufficient to withstand a motion to dismiss.” Ivey v. 28 Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982); Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th - 14 - 08CV2109-MMA (CAB) 1 Cir. 1980) (conclusory allegations of conspiracy insufficient to support a claim under section 1983 2 or 1985). Here, Plaintiff has failed to allege any facts that show an agreement or meeting of the 3 minds to violate any of his constitutional rights. See Woodrum v. Woodward County, 866 F.2d 4 1121, 1126 (9th Cir. 1989); Aldabe, 616 F.2d at 1092. In addition, while Plaintiff alleges conduct 5 by several of these Defendants, the facts alleged do not suggest any agreement or meeting of the 6 minds to violate any constitutional rights. Moreover, Plaintiff must allege that a constitutional 7 violation occurred. Plaintiff has sufficiently alleged only one constitutional violation, that is, his 8 retaliation claim. But Plaintiff has not alleged any facts to support that the Defendants identified in 9 his conspiracy claim played any role in cancelling Plaintiff’s transfer to GP. Accordingly, the 10 Court GRANTS Defendants’ motion to dismiss Plaintiff’s conspiracy claims with leave to 11 amend. 12 IX. 13 Supervisory Liability Plaintiff’s thirteenth cause of action alleges that supervisory Defendants failed to lawfully 14 administer, train, and supervise subordinate employees. (FAC at ¶¶ 130–135.) Defendants assert 15 that Plaintiff fails to state a claim for supervisory liability because Plaintiff has not alleged any 16 causal connection between the supervisory Defendants and his constitutional claims. (Defs.’ Mot. 17 to Dismiss at 12:1–28.) 18 Liability for a civil rights violation under Section 1983 may not be based on a theory of 19 respondeat superior. Monell v. Dep’t of Social Services of City of New York, 436 U.S. 658, 693 20 (1978). “Liability under § 1983 arises only upon a showing of personal participation by the 21 defendant.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Therefore, “a supervisory official, 22 such as a warden, may be liable under Section 1983 only if he was personally involved in the 23 constitutional deprivation, or if there was a sufficient causal connection between the supervisor’s 24 wrongful conduct and the constitutional violation.” Henry v. Sanchez, 923 F. Supp. 1266, 1272 25 (C.D. Cal. 1996). For there to be a sufficient causal connection, the official must have known of a 26 constitutional violation; it is not enough to claim that an official should have known of a 27 constitutional deprivation because of a complaint brought through the prison appeals system. 28 Barry v. Ratelle, 985 F. Supp. 1235, 1239 (S.D. Cal. 1997). - 15 - 08CV2109-MMA (CAB) 1 Here, Plaintiff alleges that supervisory Defendants failed to adequately train their 2 subordinates. (FAC at ¶¶130–135.) Plaintiff also alleges that the supervisory Defendants failed to 3 “properly train, supervise, and follow implementation of Castillo changes . . . .” (Id. at ¶¶ 23.) 4 Plaintiff, however, fails to go beyond these broad statements of supervisory liability as to 5 Defendants Cate or Stratton. Plaintiff does not allege these particular Defendants were personally 6 involved in any of the alleged constitutional violations. Further, Plaintiff fails to allege any causal 7 connection between these Defendants and the alleged constitutional violations. As such, Plaintiff’s 8 constitutional claims against Defendants Cate and Stratton are based on a theory of respondeat 9 superior, which does not create liability under Section 1983. Monell, 436 U.S. at 693. 10 The Court, however, is satisfied that Plaintiff’s allegations against all other Defendants are 11 not based on respondeat superior liability, but rather, are based on those Defendants’ individual 12 actions and their involvement in the validation of Plaintiff as a gang member. Accordingly, the 13 Court GRANTS IN PART Defendants’ motion to dismiss Plaintiff’s constitutional claims against 14 Defendants Cate and Stratton. While the Court is not convinced that Plaintiff could not 15 successfully amend his claims against Defendant Stratton, the Court finds that it is not possible for 16 Plaintiff to cure the deficiencies relating to Defendant Cate because Plaintiff alleges liability 17 against him solely based on his role as a supervisory, which is a claim based on respondeat 18 superior and not viable under Section 1983. Accordingly, Plaintiff cannot cure this legal 19 deficiency, and therefore amendment of Plaintiff’s claims against Defendant Cate would be futile. 20 Accordingly, the Court DISMISSES Plaintiff’s claims against Defendant Stratton with leave to 21 amend, but DISMISSES those claims against Defendant Cate without further leave to amend. 22 CONCLUSION 23 For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART 24 Defendants’ motion to dismiss Plaintiff’s First Amendment Complaint. Plaintiff’s retaliation claim 25 against Defendants Scribner and Ochoa are permitted to proceed, however, the Court DISMISSES 26 all other claims. Plaintiff is GRANTED forty-five (45) days leave from the date this Order is 27 “Filed” in which to file a Second Amended Complaint which cures all the deficiencies of pleading 28 noted above. Plaintiff’s Amended Complaint must be complete in itself without reference to the - 16 - 08CV2109-MMA (CAB) 1 superseded pleading. See S.D. Cal. Civ. L. R. 15.1. Defendants not named and all claims not re- 2 alleged in the Amended Complaint will be deemed to have been waived. See King v. Atiyeh, 814 3 F.2d 565, 567 (9th Cir. 1987). Further, if Plaintiff’s Amended Complaint fails to state a claim upon 4 which relief may be granted, it may be dismissed without further leave to amend. See James v. 5 Giles, 221 F.3d 1074, 1077 (9th Cir. 2000). 6 7 IT IS SO ORDERED. DATED: August 27, 2010 8 9 Hon. Michael M. Anello United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 17 - 08CV2109-MMA (CAB)
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