The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff Michael Brodheim is a state prisoner at the California Medical Facility ("CMF") in Vacaville, California, proceeding with counsel in this civil rights action filed pursuant to 42 U.S.C. § 1983. Presently pending is defendants' motion to dismiss the operative Fourth Amended Complaint and this action in its entirety. For the following reasons, the court recommends that defendants' motion be granted.*fn1
This action proceeds on plaintiff's Fourth Amended Complaint ("FAC"), filed February 28, 2011 (Dkt. No. 227), and is before this court on remand from the Ninth Circuit Court of Appeals, for further proceedings consistent with that court's decision in Brodheim v. Cry, 584 F.3d 1262 (9th Cir. 2009). Defendants are Michael Cry (former CMF Inmate Appeals Coordinator), K. Dickinson (current CMF Warden), and V. Singh (current CMF Chief Deputy Warden).*fn2 Defendants are sued in their official capacities only. Plaintiff seeks only declaratory and injunctive relief based on his claim of retaliation in the processing of his administrative grievances, in alleged violation of the First Amendment to the United States Constitution, and Article I, section 2, of the California Constitution, and based on his pendent state law claim that defendants violated plaintiff's rights under the Bane Civil Rights Act, California Civil Code § 52.1. Plaintiff does not seek damages.
Defendants move to dismiss this action on the following grounds: (1) plaintiff's retaliation claim against defendant Cry and his successors are moot; (2) plaintiff fails to state a claim against defendants Dickinson and Singh; and (3) plaintiff fails to state a claim under the Bane Civil Rights Act . (Dkt. No. 227.) Plaintiff timely filed an opposition to defendants' motion (Dkt. No. 230), and defendants filed a reply (Dkt. No. 231). A hearing on defendants' motion was held before the undersigned on May 19, 2011. Plaintiff was represented by attorney Joseph Elford; defendants were represented by Assistant Attorney General Kelli Hammond.
Plaintiff alleges that on June 18, 2001, defendant Cry, then CMF Inmate Appeals Coordinator, rejected an administrative grievance submitted by plaintiff on a CDCR Form 602. On June 20, 2001, plaintiff returned the grievance and rejection notice to Cry, together with an "Inmate Request for Interview," in which plaintiff set forth his objections to Cry's response. On June 21, 2001, Cry rejected plaintiff's request for an interview with a note stating that the rejection would stand and the admonition, "I'd also like to warn you to be careful what you write, request on this form." (FAC, ¶¶ 10-12.)
Upon receiving Cry's "warning" on June 25, 2001, plaintiff filed a staff complaint against Cry, in which he inquired why Cry had "warned" plaintiff, and requested that Cry stop infringing on plaintiff's First Amendment right to seek redress of grievances. (FAC, ¶ 13.)
The informal and first formal levels of review were bypassed. (Dkt. No. 130-1 at 15.) On July 23, 2001, the grievance was denied at the second level of review by former CMF Chief Deputy Warden Valadez, on behalf of former CMF Warden Ramirez-Palmer. (Id. at 16, 21-22.) The Warden concluded that plaintiff had filed his complaint against Cry "as a form of retaliation against CC II Cry," who had acted "within the scope of his duties as the Appeals Coordinator." (Id.; FAC, ¶ 14.)
On August 25, 2001, plaintiff submitted his staff complaint against Cry for third (Director) level review, alleging that Cry's "warning" could only be construed as an attempt to chill plaintiff's First Amendment right to file grievances. (Dkt. No. 130-1 at 23-25.) The Director's Level Appeal Decision was rendered on November 20, 2011, and concluded that plaintiff's complaint was "unsubstantiated." (Id. at 28; FAC, ¶¶ 15, 16.)
Thereafter, "[o]n February 15, 2002, Brodheim was informed that defendant Cry had inquired of another inmate whether Brodheim had written an administrative grievance on behalf of one of CMF's disabled inmates. Cry informed this other inmate that the handwriting on the 602 looked like Brodheim's. Brodheim wanted to file an administrative appeal alleging that there was no legitimate reason for Cry's inquiry or comment, because inmates are expressly permitted by regulation to assist other inmates in the preparation of an appeal. Brodheim, however, was deterred from  filing another complaint against Cry by his earlier 'warning,' as well as the warden's subsequent determination that Brodheim submitted his staff complaint against Cry 'as a form of retaliation.'" (FAC, ¶ 17.)
The initial complaint filed in 2002 was dismissed with leave to amend (Dkt. No. 5), and plaintiff thereafter filed an amended complaint (Dkt. No. 6). The court found that plaintiff stated potentially cognizable claims against, inter alia, defendants Cry, Valadez, and Ramirez-Palmer, and authorized the filing of a Second Amended Complaint on May 19, 2003 (Dkt. No. 19); then authorized the filing of a Third Amended Complaint and Supplemental Pleading on September 22, 2004 (Dkt. No. 54). Since September 9, 2005, this action has proceeded only against defendants Cry, Valadez, and Ramirez-Palmer. All other named defendants were dismissed from this action. (Dkt. Nos. 17, 20, 25, 42, 87, 90.)
On September 25, 2007, this court granted defendants' motion for summary judgment on plaintiff's Third Amended Complaint and Supplemental Pleading. (Dkt. Nos. 184, 189.) By formal mandate issued December 17, 2009, the Ninth Circuit Court of Appeals reversed the district court's decision, and remanded this case for further proceedings. Brodheim v. Cry, supra, 584 F.3d at 1274. The Appeals Court reinstated plaintiff's First Amendment retaliation claim under 42U.S.C. § 1983, finding that plaintiff had produced sufficient evidence to create a genuine issue of material fact whether Cry's warning constituted an adverse action. Id., 584 F.3d at 1269-73. The Ninth Circuit rejected the district court's alternative basis for summary judgment, that plaintiff's claims were barred by the doctrine of res judicata based on a separate state court action plaintiff had filed. The decision reinstated plaintiff's state law claim because not previously reached by the district court.
On remand, this court held a status conference and granted plaintiff leave to file a motion to permit further amendment of his complaint. (Dkt. No. 213.) After considering plaintiff's motion, and defendants' opposition thereto, the court concluded that it would be "prudent to proceed conservatively on the operative pleadings, permitting only limited supplemental pleading, and thereby maintaining the existing separation between plaintiff's primary alleged facts and the alleged events occurring subsequent thereto." (Dkt. No. 218 at 6-7.) This court reasoned that "[a]uthorizing the filing of only a supplemental pleading will cause limited delay . . . and minimal costs, and cannot reasonably be construed as prejudicial to defendants. Fed. R. Civ. P. 15(d)." (Id. at 7.) Pursuant to Federal Rule of Civil Procedure 25(d)(1), the court substituted the following supervisory defendants: current CMF Warden K. Dickinson was substituted for former CMF Warden Ana Ramirez-Palmer, and current CMF Chief Deputy Warden V. Singh was substituted for former CMF Chief Deputy Warden J. Valadez. (Id. at 8.) Plaintiff was granted leave to file "a Second Supplemental Pleading limited to allegations of any additional events, relevant to plaintiff's presently existing claims, which occurred subsequent to the filing of plaintiff's Third Amended and Supplemental Complaint." (Id.) Significant to the court was plaintiff's representation that he "intended to add 'no new claims,' or 'change the scope of the trial,' but only 'provide evidence of a continuation of [retaliatory] conduct by policy-making prison authorities,' that is, 'additional evidence of a custom or policy' allegedly demonstrating 'retaliation by prison officials occurring since the last complaint was filed.'" (Id. at 5 (fn. omitted), quoting plaintiff's brief set forth in Dkt. No. 216 at 1-2) (emphasis added.)
After plaintiff filed his Second Supplemental Pleading, defendants filed a motion to dismiss (Dkt. No. 221), heard by this court on December 23, 2010. At the hearing, plaintiff's counsel conceded that plaintiff's contentions against defendant Cry "himself" were now moot, but argued that this action should proceed against Cry's successors, as well as the current Warden, who had allegedly "turned a blind eye" to continuing incidents of retaliation. (Audio Recording of Dec. 23, 2010 Hearing.) Plaintiff's counsel stated that he didn't yet "have all the facts" to challenge the conduct of Cry's successors, but believed that "there is at least one other inmate who will state that he believes he was retaliated against for filing his grievances." (Id.) Noting the length and history of this case, and the patchwork of operative pleadings, the court granted plaintiff leave to file a single comprehensive pleading specifying all instances of alleged retaliatory conduct that would warrant the requested injunctive relief in this action despite the departure of each of the original defendants. (Id.) The court instructed plaintiff's counsel that the allegations of the amended complaint must be specific in identifying the alleged ongoing retaliatory conduct and its chilling effect on the exercise of plaintiff's First Amendment rights, and any allegations of related conduct against other inmates, thus demonstrating that plaintiff's retaliation claims are not now moot. (Id.) (emphasis added.)
Accordingly, the court denied without prejudice the pending motion to dismiss, and directed plaintiff to "file and serve a Fourth Amended Complaint, consistent with the parameters set forth by the court on the record at the hearing." (Dkt. No. 225 at 1.) Defendants were directed to file an answer or a motion to dismiss. (Id. at 2.) In support of plaintiff's stated need to obtain additional relevant facts, the court vacated the expired discovery deadline and directed that "the parties may continue to conduct discovery until further order of this court." (Id.)
Plaintiff filed the operative Fourth Amended Complaint on February 1, 2011. (Dkt. No. 226.) Significantly, the Fourth Amended Complaint is identical to plaintiff's Second Supplemental Pleading, with one exception, the addition of Paragraph 22, which merely provides in full: "At least two other inmates at CMF have been retaliated against by the appeals coordinator for filing administrative grievances since 2008." (FAC, ¶ 22.) Thus, as now framed by the Fourth Amended Complaint:
On or about January 20, 2004, Ramirez-Palmer's successor, [former] Warden Teresa Schwartz, prepared a memorandum to Brodheim responding to letters Brodheim had written to public officials, seeking redress for Cry's inappropriate rejection of Brodheim's grievances and staff complaints. The memorandum criticized Brodheim for his protected activity as follows: "[Y]our attempts to write numerous individuals, both inside and outside the Department, to garner support for your allegations, has led to unnecessary staff time to respond to your multiple, duplicate complaints. . . . It is unfortunate that valuable staff time and energy are directed towards the allegations you have made." (FAC, ¶ 18.) Brodheim wanted to file an administrative grievance and tort claim against Cry, and amend the instant complaint, when he learned that Cry sought to effectuate his transfer because of Brodheim's "focus on litigation," but he was deterred from doing so by Cry's previous conduct.*fn3 (FAC, ¶ 19.)
On several occasions subsequent to the original filing of this complaint, defendant Cry rejected administrative grievances filed by Brodheim without a legitimate basis for doing so, thereby further chilling the exercise of Brodheim's First Amendment rights. (FAC, ¶ 20.)
On November 19, 2008, another inmate at CMF, Gerald Simmons, submitted a declaration stating that he had been informed by Correctional Officer L. Sanchez that the CMF administration wanted Brodheim removed from his position in the prison library because Brodheim was ...