The opinion of the court was delivered by: Hayes, Judge
The matters before the Court are the Motion to Dismiss Plaintiff's First Amended Complaint (Doc. # 15) and the Report and Recommendation (Doc. # 21) filed by United States Magistrate Judge Cathy Ann Bencivengo.
On September 4, 2007, Plaintiff Antuan Williams, a state prisoner proceeding pro se, filed a civil rights action pursuant to 42 U.S.C. section 1983 (Doc. # 1). On January 23, 2008, Plaintiff filed a First Amended Complaint ("FAC") which is the operative pleading in this case. The FAC alleges claims against Defendants G. Janda, W. Price, R. Johnson and J. Anaya, employees of the California Department of Corrections and Rehabilitation at Calipatria State Prison.
The FAC alleges that Plaintiff had a work assignment as the chairman of the Men's Advisory Council, which entailed addressing prisoners' concerns. The FAC alleges that on June 20, 2007, Plaintiff had a meeting with Defendant Johnson whereby Johnson notified Plaintiff he would be removed from his work assignment if "plaintiff didn't stand down from criticizing the Administration position regarding the denial of program towards African Americans." FAC, ¶ 4. The FAC alleges that in closing the meeting, Johnson stated "no one here likes a whistle blower." Id. The FAC alleges that on June 22, 2007, Defendants Johnson and Price filed false charges against Plaintiff, and that Plaintiff was placed in administrative segregation based on these charges. Id., ¶¶ 5-7. The FAC alleges that "prison disciplinary hearing procedures were not taken to legally hold or house plaintiff" in administrative segregation. Id., ¶¶6-9. The FAC alleges that on June 28, 2007, Defendants Janda, Price, and Johnson ordered Plaintiff to appear before the prison classification committee. Id., ¶8. The FAC alleges that on July 12, 2007, Plaintiff appeared before the classification committee and was ordered released from administrative segregation upon a finding that the charges against Plaintiff were false. Id., ¶ 10. The FAC alleges that at some point after the July 12, 2007 hearing, Plaintiff was again placed in administrative segregation pending transfer to another prison. Id., ¶13. The FAC alleges that the decision to transfer Plaintiff was based on false confidential information and on a prior incident for which Plaintiff had already served a term in a segregated housing unit. Id., ¶13-14. The FAC alleges claims for retaliation in violation of Plaintiff's First Amendment rights; cruel and unusual punishment in violation of Plaintiff's Eighth Amendment rights; false imprisonment; violation of Plaintiff's Fourteenth Amendment equal protection rights; and violation of Plaintiff's Fourteenth Amendment due process rights.
On June 3, 2008, Defendants filed the Motion to Dismiss the FAC. Defendants assert that the FAC fails to state a First Amendment retaliation claim because Plaintiff "states no facts to establish a causal connection between his protected conduct and the actions Defendants allegedly took," and Plaintiff "does not state facts to show that any of Defendants' alleged actions had the effect of chilling Plaintiff's First Amendment rights." Mot. to Dismiss, p. 5. Defendants assert that FAC fails to state an Eighth Amendment cruel and unusual punishment claim because Plaintiff does not allege any facts to show extreme deprivation. Defendants assert that the FAC fails to allege facts to support an Fourteenth Amendment equal protection claim because Plaintiff does not specifically allege that he was a member of any identifiable group, that Defendants inflicted any injury upon him because he was a member of an identifiable group, or that he suffered any injury at all as a result of being a member of any such group. Defendants assert that the FAC fails to allege facts to support a Fourteenth Amendment due process claim because Plaintiff has "failed to plead any protected liberty interest that was at stake in the proceedings by which he was placed in administrative segregation." Id. at 9. Defendants contend that they are protected from liability for Plaintiff's constitutional claims by qualified immunity because "Plaintiff has failed to allege the facts necessary to establish a claim under the First Amendment, the Eighth Amendment, or the Fourteenth Amendment." Id. at 10-11.
On September 24, 2008, Plaintiff filed a Response in Opposition to the Motion to Dismiss (Doc. # 20). Plaintiff contends that the FAC states First Amendment retaliation claim through allegations that Defendants placed him in administrative segregation as "retaliation methods to silence him." Opposition, p. 3. Plaintiff asserts that the FAC states an Eighth Amendment cruel and unusual punishment claim and a false imprisonment claim through allegations that Defendants knowingly removed Plaintiff from the general prison population based on false information. Plaintiff asserts that the FAC states a Fourteenth Amendment due process claim through allegations that he was denied the right to be heard, present evidence and review records before being held in administrative segregation.
On August 4, 2008, Magistrate Judge Cathy Ann Bencivengo issued the Report and Recommendation ("R&R"). The Magistrate Judge concluded that the FAC states a First Amendment retaliation claim because Plaintiff has alleged that an adverse action (the filing of false charges) was taken against Plaintiff as a result of his protected conduct (his complaints regarding the lack of programs for black prisoners). The Magistrate Judge concluded that Plaintiff's placement in administrative segregation constitutes "harm that is more than minimal," which is sufficient to satisfy the "chilling effect" requirement to state a retaliation claim. R&R, p. 4. The Magistrate Judge concluded that the FAC fails to state an Eighth Amendment cruel and unusual punishment claim because "the FAC contains no facts which indicate Plaintiff was denied adequate food, clothing, shelter, and medical care;" and the FAC fails to "allege facts to demonstrate [Plaintiff's] placement in administrative segregation threatened his personal safety or exposed him to a substantial risk of serious harm." Id., at 6 (internal quotations omitted). The Magistrate Judge concluded that the FAC fails to state a false imprisonment claim because Plaintiff is a convicted prisoner, and "the events described by Plaintiff in this action do not give rise to a cognizable tort claim for false imprisonment." Id. at 7. The Magistrate Judge concluded that "the FAC is devoid of any facts which would support an equal protection claim." Id. at 8. The Magistrate Judge concluded that Plaintiff has failed to state a Fourteenth Amendment due process claim because allegations with respect to Plaintiff's "twenty-day placement in administrative segregation [are] insufficient to establish a liberty interest because such a placement in administrative segregation falls within the terms of confinement ordinarily contemplated by a prison sentence." Id. at 8-9. The Magistrate Judge further concluded that "assuming arguendo that Plaintiff had a constitutionally protected liberty interest in not being placed in administrative segregation for twenty days, the procedural protections he received were sufficient to safeguard that interest." Id. at 10. The Magistrate Judge concluded that Defendants Johnson, Price and Janda are not entitled to qualified immunity with respect to the FAC's First Amendment retaliation claim. Id. at 11 (internal quotations omitted). The Magistrate Judge concluded that with respect to the remaining Defendant Anaya, the "Court does not reach the issue of qualified immunity because Plaintiff has failed to survive on the threshold inquiry because he does not state a cognizable claim against Defendant Anaya." Id. at 13.
The R&R recommends that the Motion to Dismiss be denied as to Plaintiff's First Amendment retaliation claim, and granted with respect to Plaintiff's remaining claims. The R&R recommends dismissing the FAC's Eighth Amendment cruel and unusual punishment claim and Fourteenth Amendment equal protection claim without prejudice and with leave to amend, and dismissing the FAC's Fourteenth Amendment due process claim and false imprisonment claim with prejudice and without leave to amend. The R&R recommends dismissing Anaya from the case because the FAC "does not state a cognizable claim against Defendant Anaya." R&R, p. 12.
On August 20, 2008, Defendants filed Objections to the R&R (Doc. # 22). Defendants assert that the R&R applied the wrong Rule 12(b)(6) standard, and that the R&R erroneously determined that the FAC states a First Amendment retaliation claim. On September 4, 2008, Plaintiff filed Objections to the R&R (Doc. # 23). Plaintiff asserts that the R&R erroneously determined that the FAC's Fourteenth Amendment due process claim does not implicate a liberty interest. Plaintiff also opposes dismissal of due process claim with prejudice and without leave to amend. On September 19, 2008, Plaintiff filed a Reply to Defendants' Objections to the R&R (Doc. # 25).
The duties of the district court in connection with the Report and Recommendation of a Magistrate Judge are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b). The district judge "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." 28 U.S.C. § 636(b). The district court need not review de novo those portions of a Report and Recommendation to which neither party objects. Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc).
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the pleadings. See De La Cruz v. Tormey, 582 F.2d 45, 48 (9th Cir. 1978). A complaint may be dismissed for failure to state a claim under Rule 12(b)(6) where the factual allegations do not raise the right to relief above the speculative level. See Bell Atlantic v. Twombly, 127 S.Ct. 1955, 1965 (2007). Conversely, a complaint may not be dismissed for failure to state a claim where the allegations plausibly show that the pleader is entitled to relief. See id. (citing Fed R. Civ. P. 8(a)(2)). In ruling on a motion pursuant to Rule 12(b)(6), a court must construe the pleadings in the light most favorable to the plaintiff, and must accept as true all material allegations in the complaint, as well as any reasonable inferences to be drawn therefrom. See Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003); see also Chang v. Chen, 80 F.3d 1293 (9th Cir. 1996). "Courts have a duty to construe pro se pleadings liberally, including pro se motions as well as complaints." Bernhardt v. Los Angeles County, 339 F.3d 920, 925 (9th Cir. 2003).
Rule 15 of the Federal Rules of Civil Procedure mandates that leave to amend "be freely given when justice so requires." Fed. R. Civ. P. 15(a). This policy is applied with "extraordinary liberality." Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). Once an answer to the complaint has been filed, as is the case here, courts may deny leave to amend where the proposed amendment would be futile, where it is sought in bad faith, where it will create undue delay, or where "undue prejudice to the opposing party will result." ...