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Parra v. Hernandez

March 24, 2009

VICTOR PARRA JR., PLAINTIFF,
v.
R. HERNANDEZ, WARDEN, ET AL., DEFENDANT.



The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court

ORDER

(1) ADOPTING IN PART REPORT AND RECOMMENDATIONS [Doc. Nos. 19, 40]

(2) GRANTING IN PART DEFENDANTS' MOTIONS TO [Doc. Nos. 12, 14, 39]

DISMISS

On January 31, 2008, Plaintiff filed a complaint under the Civil Rights Act, 42 U.S.C. § 1983 alleging constitutional violations against Defendants. (Doc. No. 1.) On May 23, 2008, Defendants P. Cowan, R. Hernandez, R. Limon, and W. Liles filed a motion to dismiss the complaint. (Doc. No. 12.) Defendant CDCR filed its motion to dismiss on July 10, 2008. (Doc. No. 14.) On July 21, 2008, Plaintiff filed a response to Defendants' motion to dismiss. (Doc. No. 23.) On July 22, 2008, the Magistrate Judge issued a Report and Recommendation that Defendants' motions to dismiss be granted. (Doc. No. 19.) On August 4, 2008, Plaintiff filed a document that the Court construed as an objection to the Report and Recommendation. (Doc. No. 25.) Defendant Cota filed his motion to dismiss on October 2, 2008. (Doc. No. 39.) On November 10, 2008, the Magistrate Judge issued a Report and Recommendation that Cota's motion to dismiss be granted. (Doc. No. 40.) Plaintiff filed an objection to the Report and Recommendation on December 4, 2008. (Doc. No. 41.) For the following reasons, the Court adopts in part the Report and Recommendations of the Magistrate Judge and grants in part Defendants' motions to dismiss.

(1) The Court dismisses Plaintiff's first cause of action for retaliation as to all Defendants and denies leave to amend.

(2) The Court dismisses Plaintiff's first, second, and third causes of action for Eighth Amendment violations as to Defendants Liles, Limon and Cota and grants leave to amend.

(3) The Court dismisses Plaintiff's fourth cause of action for unreasonable seizure as to all Defendants and denies leave to amend.

(4) The Court dismisses Plaintiff's fifth and seventh causes of action for due process violations as to Defendants Liles, Limon and Cota and grants leave to amend.

(5) The Court dismisses Plaintiff's sixth cause of action as to all Defendants and denies leave to amend.

(6) The Court dismisses Plaintiff's eighth cause of action regarding classification and denies leave to amend.

(7) The Court dismisses Plaintiff's ninth cause of action for unreasonable seizure as to all Defendants and denies leave to amend.

(8) The Court dismisses with prejudice all claims against the California Department of Corrections and Rehabilitation (the "CDCR").

(9) The Court dismisses Plaintiff's tenth cause of action and denies leave to amend.

(10) The Court dismisses Plaintiff's eleventh, twelfth, and thirteenth causes of action as to all Defendants and grants leave to amend as to all Defendants other than the CDCR.

(11) The Court dismisses Plaintiff's fourteenth cause of action as to Defendants Liles, Limon and Cota and grants leave to amend.

(12) Court dismisses Plaintiff's seventeenth cause of action as to all Defendants and denies leave to amend.

(13) The Court dismisses Plaintiff's eighteenth cause of action as to Defendants Liles, Limon and Cota and grants leave to amend.

Plaintiff may submit an amended complaint remedying the highlighted deficiencies no later than May 4, 2009. Where the Court has denied leave to amend, Plaintiff would be required to submit along with his amended complaint a motion for reconsideration based on new facts or new law to maintain such claims.

Background

At all times relevant to the Complaint, Plaintiff was incarcerated at Richard J. Donovan State Correctional Facility ("Donovan"). Plaintiff alleges that he suffers from an anxiety disorder and has been assigned a "safety concerns" classification from the prison. (Compl. ¶¶ 2, 13.)

The Complaint alleges that, on or about September 28, 2006, Defendants Limon and Liles, enforcing "Operational Plan #85," ordered Plaintiff to sign a double cell agreement and share a cell with another inmate named Duran, who was in the general population. (Compl. ¶¶ 1-3.) Plaintiff had shared a cell with at least one general population inmate in the past. (Compl. ¶ 49.) However, Plaintiff refused to double cell with Duran, explaining that he feared Duran would assault him. (Compl. ¶ 4.) Limon and Liles warned Plaintiff that, if he did not sign the double cell agreement, he would be issued a Rule Violation Report ("RVR") placed on yard hold and moved to Unit 8, where there are no yard or library services. (Compl. ¶ 3.) Plaintiff then agreed to double cell with Duran, but would not sign the agreement form. (Compl. ¶ 6.)

On October 4, 2006, Plaintiff was formally issued an RVR for refusing an order to double cell. (Compl. Ex. A.) Plaintiff states that, on October 9, 2006, he was transferred to Unit 8. (Compl. Ex. B at 3.) On October 30, 2006, following a hearing conducted at Donovan, the Hearing Officer found Plaintiff not guilty of the rule violation and ordered that the RVR be removed from Plaintiff's central file. (Compl. Ex. A at 2.) The Hearing Officer noted that Plaintiff was in compliance at the time of the hearing and that a central file review should have been conducted regarding Plaintiff's claims. (Id.) The Hearing Officer concluded that no further disciplinary action was necessary. (Id.)

While on yard hold and while housed in Unit 8, Plaintiff was not allowed any time in the exercise yard. (Compl. ¶ 8.) On January 1, 2007, Plaintiff was transferred to Unit 7. (Compl. ¶ 15.) There, from January 1, 2007 through April 2007, Plaintiff was allowed less than five hours of exercise yard time per week. (Compl. ¶¶ 8, 15.)

Discussion

Based on these events, Plaintiff alleges multiple causes of action under the First, Fourth, Eighth, and Fourteenth Amendments, as well as several state laws. Defendants move for the dismissal of all claims against Defendants Limon, Liles, Cota, and the CDCR, and for the dismissal of certain claims against Defendants Cowan and Hernandez.

I. Motion to Dismiss -- Legal Standard

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that a complaint may be dismissed for "failure to state a claim upon which relief may be granted." Fed. R. Civ. P. 12(b)(6). A complaint may be dismissed as a matter of law if it lacks a cognizable legal theory or states insufficient facts under a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). The Supreme Court has stated that the factual allegations of a complaint must be "enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 127 S.Ct. ...


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