The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge
ORDER: (1) ADOPTING THE MAGISTRATE JUDGE'S R&R IN PART; AND (2) GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS
Plaintiff Ricky Gray ("Plaintiff"), a state prisoner proceeding in pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983 against Defendants, who are employees of the California Department of Corrections and Rehabilitation and Centinela State Prison ("Centinela"). [Doc. No. 1.] Presently before the Court is Magistrate Judge Cathy Ann Bencivengo's Report and Recommendation ("R&R") recommending that this Court grant in part and deny in part Defendants' Motion to Dismiss Plaintiff's Fourth Amended Complaint. [Doc. No. 114.] Plaintiff filed objections to the R&R. [Doc. No. 116.] For the reasons set forth below, the Court GRANTS IN PART AND DENIES IN PART Defendants' Motion to Dismiss.
On July 21, 2005, Plaintiff's case was transferred to this District from the United States District Court for the Central District of California. [Doc. No. 1.] The last operative pleading in Plaintiff's case was the Third Amended Complaint ("TAC"). After the transfer, Defendants filed a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) and a motion for a more definite statement. [Doc. No. 10.] Magistrate Judge Leo. S. Papas issued an R&R finding that the TAC did not contain a short and plain statement of Plaintiff's claims, recommending that the TAC be dismissed, and recommending that Plaintiff be given leave to amend his TAC. [Doc. No. 28.] On April 25, 2006, this Court adopted Magistrate Judge Papas' R&R, granted Defendants' motions, and granted Plaintiff leave to file a Fourth Amended Complaint ("FAC"). [Doc. No. 42.]
On August 29, 2006, Plaintiff filed his FAC. [Doc. No. 59.] The FAC alleges numerous claims for First Amendment and Fourteenth Amendment violations, including improper handling of Plaintiff's appeals; seizure of his personal propery; lack of impartiality in the gang validation process; and improper assignment of Plaintiff to administrative segregation and the Security Housing Unit ("SHU"). Plaintiff divided his claims into thirteen counts. On October 24, 2006, Defendants filed a motion to dismiss or, in the alternative, motion for a more definite statement. [Doc. No. 75.]
The duties of a district court in connection with a magistrate judge's report and recommendation are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court must "make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate [judge]." See United States v. Raddatz, 447 U.S. 667, 676 (1980) (citing § 636(b)(1)); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989).
Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint. See Fed. R. Civ. P. 12(b)(6); see also Ileto v. Glock, Inc., 349 F.3d 1191, 1199-1200 (9th Cir. 2003).
A motion to dismiss should be granted if the plaintiff is unable to delineate "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007) (abrogating Conley v. Gibson, 355 U.S. 41 (1957)). A complaint may be dismissed as a matter of law for two reasons: (1) lack of a cognizable legal theory, or (2) insufficient facts under a cognizable theory. See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).
In reviewing the motion, the court must assume the truth of all factual allegations and must construe them in the light most favorable to the nonmoving party. See Gompper v. VISX, Inc., 298 F.3d 893, 895 (9th Cir. 2002). However, the court is not bound to accept as true a legal conclusion couched as a factual allegation. See Papasan v. Allain, 478 U.S. 265, 286 (1986); see also W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). Instead, the court must determine "whether conclusory allegations follow from the description of facts as alleged by the plaintiff." Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992) (citations omitted). When ruling on a motion to dismiss, the court may consider the facts alleged in the complaint, documents attached to the complaint, and documents relied upon but not attached to the complaint when authenticity is not contested. See Cooper v. Pickett,137 F.3d 616, 623 (9th Cir. 1997).
In civil rights cases where the plaintiff appears pro se, the court must construe the pleadings liberally, affording the plaintiff the benefit of any doubt. See Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). The pro se plaintiff must be given leave to amend deficiencies unless it is clear that they cannot be overcome by amendment. See Eldridge v. Block, 832 F.2d 1132, 1135 (9th Cir. 1987). However, "[v]ague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." See Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). The plaintiff must identify with "at least some degree of particularity overt acts which defendants engaged in that support the plaintiff's claim." See Jones v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1982) (internal quotation omitted).
As a preliminary matter, the Court notes that the FAC omits several of the Defendants named in the TAC. "The fact that a party was named in the original complaint is irrelevant; an amended pleading supersedes the original." Hal Roach Studios, Inc. v. Richard Feiner & Co.,896 F.2d 1542, 1546 (9th Cir. 1990). An amended complaint therefore must be complete in itself without reference to the original complaint. See Local R. 15.1. All claims not re-alleged in the amended complaint are deemed to have been waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). In the FAC, Plaintiff does not re-allege his claims against Defendants Cook, Dexter, Eason, Gonzalez, Guillen, Hudson, Masters, Parks, Rodriguez, Salazar, J. Stokes, M. Stokes, and Trevino. Accordingly, the Court DISMISSES these Defendants from Plaintiff's action.
In addition, although the FAC names Fischer, Renteria, Roman, Ruff, and Tilton as Defendants, there is no indication that these individuals were served. The Federal Rules of Civil Procedure provide that "[i]f service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court . . . shall dismiss the action without prejudice as to that defendant." Fed. R. Civ. P. 4(m). The FAC was filed on August 29, 2006, and the service period lapsed on December 29, 2006. Plaintiff has requested no extensions of the service period, nor has he demonstrated good cause for an extension. Accordingly, the Court DISMISSES Defendants Fischer, Renteria, Roman, Ruff, and Tilton from Plaintiff's action.
As noted above, Plaintiff's FAC consists of thirteen counts, each asserted against a particular Defendant or Defendants. At the beginning of each count, Plaintiff states that Defendants violated his First or Fourteenth Amendment rights, or both. In many instances, Plaintiff fails to specify which of his First or Fourteenth Amendment rights he seeks to enforce. The Court addresses each of the thirteen counts in turn. The factual allegations recounted below are set forth in Plaintiff's FAC.
I. Count One: Claims Against Defendant Zaragoza
Plaintiff alleges that upon his arrival at Centinela, prison employees withheld some of his personal property. (FAC ¶ 1.) Plaintiff asked correctional sergeant Zaragoza about the property, and Zaragoza "became highly agitated, using disrespectful and abusive language." (Id.) Plaintiff told Zaragoza that his conduct violated California regulations. (Id.) Zaragoza then informed Plaintiff that he was in violation of prison grooming standards because he had not shaved. (Id. ¶ 2.) Plaintiff stated that he had a medical condition and was exempt from the standards. (Id.) To punish Plaintiff, Zaragoza had Plaintiff removed from the common holding cell, placed Plaintiff in an isolated holding cell, and refused to issue Plaintiff lunch. (Id.) Half an hour later, Sergeant Rodriguez moved Plaintiff back to the common holding cell. (Id. ¶ 3.)
Approximately a week later, Plaintiff returned to the administrative office to retrieve his personal property. (Id. ¶ 4.) He handed correctional officer G. Gonzales an inmate appeal regarding Zaragoza's alleged misconduct. (Id.) Gonzales referred the appeal to Zaragoza, and he reviewed it. (Id. ¶¶ 4, 9.) Zaragoza subsequently confiscated Plaintiff's "medically prescribed authorized boots" and destroyed them. (Id. ¶ 5.) Zaragoza also ordered Plaintiff to send home approximately $700 worth of personal property. (Id. ¶ 6.) Plaintiff asserts that possession of this property was authorized by the "Centinela operation procedure manual." (Id.) Plaintiff's appeal regarding Zaragoza's actions was later denied. (Id. ¶ 9.)
Plaintiff alleges that Zaragoza acted out of retaliatory motives and violated his rights to due process. Specifically, Plaintiff asserts that Zaragoza violated 15 CA ADC § 3084.5(e), which prohibits the review of an administrative appeal by a person who participated in the incident being appealed. (Id.) Defendants move to dismiss Plaintiff's due process claims. Defendants do not move to dismiss the claims Plaintiff asserts under the First Amendment.
A. Plaintiff's Due Process Allegations Regarding Deprivation of Property
The Court agrees with the R&R and finds that Plaintiff cannot state a claim under the Fourteenth Amendment for intentional deprivation of property. (See R&R at 4.) The Supreme Court has held that "an intentional deprivation of property does not give rise to a violation of the Due Process Clause if the state provides an adequate post-deprivation remedy." Hudson v. Palmer, 468 U.S. 517, 533 n.14. The Ninth Circuit has held that "California Law provides an adequate post-deprivation remedy for any property deprivations." Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) (citing Cal. Gov't Code §§ 810-895). To the extent Plaintiff alleges that Defendants' taking of Plaintiff's personal effects was an unlawful deprivation of property without due process of law, these allegations fail to state a claim because Plaintiff has available to him an adequate post-deprivation remedy.
B. Plaintiff's Due Process Allegations Regarding His Transfer to Administrative Segregation
The Court next examines Plaintiff's allegation that he was denied due process by being transferred to administrative segregation. The Court agrees with the R&R and finds that Plaintiff has not alleged a protected liberty interest in being free from administrative segregation. (See R&R at 6.)
"The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property." Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972). State statutes and prison regulations may grant prisoners liberty interests sufficient to invoke due process protections. Meachum v. Fano, 427 U.S. 215, 223-27 (1976). However, the Supreme Court has significantly limited the instances in which due process can be invoked. Pursuant to Sandin v. Conner, a prisoner can show a liberty interest under the Due Process Clause of the Fourteenth Amendment only if he alleges facts to show that the defendant (1) restrained his freedom in a manner not expected from his sentence; and (2) imposed an "atypical and significant hardship on [him] in relation to the ordinary incidents of prison life." 515 U.S. 472, 484 (1995).
Plaintiff failed to identify a state statute or prison regulation affording him a protected liberty interest in being free from administrative segregation. Further, Plaintiff has not identified an "atypical and significant hardship" resulting from his confinement in administrative segregation. See Sandin, 515 U.S. at 484. Plaintiff does not indicate whether the confinement was prolonged or highly restrictive, nor does he allege that it resulted in a major disruption in his environment. Accordingly, Plaintiff's allegations regarding his transfer to administrative segregation fail to state a claim under the Due Process Clause.
C. Plaintiff's Due Process Allegations Regarding the Review and Denial of His Appeal
The Court next examines Plaintiff's claim that his due process rights were violated when Zaragoza reviewed his appeal. The Court declines to adopt the portion of the R&R addressing this claim and finds that Plaintiff has failed to state a due process claim regarding the review and denial of his appeal.
The due process clause of the Fourteenth Amendment creates "no legitimate claim of entitlement to a [prison] grievance procedure." See Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). Even the failure of officials to properly implement an administrative appeals process within the prison system does not raise constitutional concerns. See id.; see also Ramirez v. Galaza, 348 F.3d 850, 860 (9th Cir. 2003); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993); Flick v. Alba, 932 F.2d 728 (8th Cir. 1991); Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill.1982) ("[A prison] grievance procedure is a procedural right only, it does not confer any substantive right upon the inmates. Hence, it does not give rise to a protected liberty interest requiring the procedural protections envisioned by the Fourteenth Amendment.").
Plaintiff has failed to plead facts demonstrating that Defendants deprived him of a protected liberty interest by allegedly conducting an improper review of his grievances. The R&R finds that Plaintiff has alleged an atypical and significant hardship resulting from the improper review of his grievance. (See R&R at 6.) However, Plaintiff pleads no facts to suggest how the allegedly improper review and consideration of his grievance amounted to a restraint on his freedom not contemplated by his original sentence. Plaintiff does not allege that the improper handling of his grievance affected the conditions of his confinement or the duration of his sentence. Accordingly, Plaintiff's allegations regarding the handling of his grievance fail to state a claim under the Due Process Clause.
D. Plaintiff's First Amendment Retaliation Claim
The Court next examines Plaintiff's allegation that Zaragoza retaliated against him for exercising his First Amendment rights. The Court agrees with the R&R and finds that Plaintiff has stated a claim for First Amendment retaliation. (See R&R at 7.)
A claim of First Amendment retaliation within the prison context contains the following five elements: (1) a state actor took an adverse action against the plaintiff (2) because of (3) the plaintiff's protected conduct, and that such action (4) chilled the plaintiff's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). An allegation of "harm that is more than minimal" from the alleged retaliation can satisfy the fourth element without an allegation of a chilling effect. See id. at 567, 568 n.11.
Plaintiff alleges that Zaragoza took an adverse action against him, namely, confiscating and destroying his property. (FAC ¶¶ 5, 6.) Plaintiff also alleges that Zaragoza's actions were retaliatory in nature and motivated by Plaintiff's submission of the administrative appeal. (Id. ¶ 8.) Plaintiff alleges that he was deprived of medically authorized footwear and $700 in personal property, a harm that is more than minimal. (Id. ¶¶ 5, 6.) Plaintiff alleges that he was allowed to have this property under Centinela's procedures and regulations, suggesting that Zaragoza's actions did not advance a legitimate correctional goal. (Id.) On a motion to dismiss, these allegations are sufficient to state a claim that Plaintiff was retaliated against for filing an administrative appeal.
In sum, the Court GRANTS Defendants' Motion to Dismiss as toPlaintiff's due process claims against Zaragoza, and the Court DENIES Defendants' Motion to Dismiss as to Plaintiff's First Amendment claims against Zaragoza.
II. Count Two: Claims Against Defendant Sidhu
Plaintiff asserts that correctional officer D. Sidhu violated his First and Fourteenth Amendment rights. In support of these claims, Plaintiff alleges that in March 2004, Sidhu informed Plaintiff that another correctional officer did not want Plaintiff in her housing unit because Plaintiff was a jailhouse lawyer and had filed complaints as to prison conditions at Centinela. (FAC ¶ 11.) Sidhu told Plaintiff to pack his belongings because he would be moving to another housing unit. (Id.) Plaintiff handed Sidhu an administrative appeal challenging this conduct. (Id.) Plaintiff alleges that Sidhu then fabricated a memo stating that Plaintiff should be placed in administrative segregation. (Id. ¶ 12.) Plaintiff was placed in administrative segregation and was interviewed three days later by correctional captain Dexter. (Id.) Dexter found no legitimate justification for placing Plaintiff in ...