UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
December 19, 2011
KAVIN M. RHODES,
M. ROBINSON, ET AL.,
The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
MOTION TO DISMISS BE GRANTED IN PART AND DENIED IN PART
AND CERTAIN CLAIMS AND DEFENDANTS BE DISMISSED
OBJECTIONS, IF ANY, DUE WITHIN
Findings And Recommendations
Plaintiff Kavin M. Rhodes ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On March 20, 2006, Plaintiff filed a second amended complaint. Doc. 89. On February 12, 2007, the undersigned recommended that Plaintiff's claims thirteen through thirty-three, which occurred between January 2, 2002 through November 15, 2003, should be dismissed without prejudice for failure to exhaust administrative remedies. Doc. 94. On March 9, 2007, the District Judge adopted the Findings and Recommendations and dismissed claims thirteen through thirty-three of Plaintiff's second amended complaint without prejudice for failure to exhaust administrative remedies. Doc. 97. Plaintiff appealed the Court's order on April 4, 2007. Doc. 103. On September 8, 2010, the United States Court of Appeals for the Ninth Circuit issued a published decision, reversing the Court's order and remanding for further proceedings. Doc. 212.
On March 10, 2011, the Court granted Plaintiff leave to file a third amended complaint, in effect a supplemental complaint. Doc. 224. On June 9, 2011, Plaintiff filed his third amended complaint. Doc. 239.
Prior to the Court screening Plaintiff's third amended complaint pursuant to 28 U.S.C. § 1915A, on June 24, 2011, Defendants Blevins, Huebner, A. Lopez, Sara Malone, C. Nelson, V. Pazo, Robertson, M. Robinson, and J. Tidwell filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Doc. 240. On August 23, 2011, Plaintiff filed his opposition. Doc. 245. No reply was filed. The matter is submitted pursuant to Local Rule 230(l). The Court will now screen Plaintiff's third amended complaint and consider Defendants' arguments raised in their motion to dismiss.
A. Legal Standard
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.
B. Summary Of Third Amended Complaint ("TAC")
Plaintiff makes the following allegations in his third amended complaint. Counts One through Thirteen concern events that occurred at California Correctional Institution ("CCI"), in Tehachapi, California.
1. Count One
On December 26, 2001, Plaintiff placed in the mail a civil rights complaint concerning this action. TAC 2. Plaintiff named as Defendants M. Robinson, R. Blevins, V. Pazo, J. Tidwell, and A. Lopez, among others. Id. On January 2, 2002, Defendants Pazo, R. Wenneker, and Tidwell approached Plaintiff. Id. Defendant Tidwell stated that he knew Plaintiff had filed a lawsuit. Id. Plaintiff feared for his safety and denied filing one. Id. Defendant Tidwell attempted to intimidate Plaintiff into turning over a copy of his complaint, which Plaintiff continued to deny being filed. Id. Because Plaintiff refused to turn over the complaint, Defendants Pazo, Tidwell, and Wenneker went into Plaintiff's cell to search for it. Id. They could not find it, and then confiscated Plaintiff's carrying case for his CD player, sunglasses, A/C adapter, pens, pencils, and writing tablets. Id. Plaintiff contends a violation of the First Amendment.
2. Count Two
On January 3, 2002, at 7:30 a.m., Defendants Tidwell and Wenneker appeared at Plaintiff's cell door, where Defendant Tidwell told Plaintiff that he needed to escort him to the unit office. Id. at 3. During the escort, Plaintiff observed Defendant Pazo going towards Plaintiff's cell with a large laundry cart. Id. Plaintiff was locked in the clinic holding for several hours. Id. Upon being allowed to return to his cell, Plaintiff discovered that three large boxes, containing Plaintiff's legal property, had been confiscated by Defendants Tidwell, Wenneker, and Pazo. Id. The property was delivered to R&R to Defendants Robinson and Blevins. Id. Plaintiff's property was never returned. Id. Defendant Lopez, an original Defendant in this action, adjudicated Plaintiff's subsequent inmate grievance. Id. Plaintiff contends a violation of the First Amendment.
3. Count Three
On January 13, 2002, Plaintiff appeared before the classification committee. Id. at 4. Defendant Lopez, the chair of the committee, retaliated against Plaintiff for filing this action by firing Plaintiff from his inmate job assignment as a SHU (security housing unit) legal clerk, without explanation. Id. Plaintiff contends a violation of the First Amendment.
4. Count Four
Legal documents from January 4, 2002 to January 30, 2002, sent by the Court, were read, copied, and held by Defendants Robinson and Blevins. Id. at 5. Defendants used this knowledge of Plaintiff's complaint to engage in retaliation. Id. The undersigned conspired with Defendants by sending mail from the Court to Defendants rather than Plaintiff. Id. Plaintiff received his mail obviously opened and re-sealed with tape, with the notation "Legal Mail per R&R" written on it. Id. Plaintiff contends a violation of the First Amendment.*fn1
5. Count Five
Defendants D. Chapman, E. Hanson, S. Buentempo, Dr. S. Skeen, Dr. McDill, A. Lopez, C. Nelson, and K. Todd fabricated Rules Violation Reports as retaliation. Id. at 6. On January 8, 2002, Defendant Buentempo appeared at Plaintiff's cell door and told him that Defendant Chapman had asked Defendant Buentempo to take Plaintiff to a classification hearing for a job change. Id. Plaintiff was then formally removed from his legal clerk position. Id. Plaintiff contends a violation of the First Amendment.
6. Count Six
After Plaintiff had been fired by Defendant Lopez, Plaintiff appealed the decision. Id. at 7. Defendant Chapman responded to the appeal by taking Plaintiff back to classification less than thirty days after his January 13, 2002 classification hearing, and Plaintiff was put up for transfer. Id. Defendant Chapman stated that Plaintiff could work in the main library. Id. While working in the main library, Plaintiff was harassed by Defendants Tidwell and Pazo and restricted from doing any legal work. Id. The transfer was cancelled. Id. On January 8, 2003, Defendant Chapman had Plaintiff brought back to classification hearing to remove Plaintiff from the main library. Id. As Plaintiff was leaving, Plaintiff overheard Defendant C. Nelson whispering to Defendant Chapman regarding Plaintiff's single cell status. Id. Plaintiff was later seen by Defendant Skeen, who stated that she would write a chrono to retain Plaintiff on single status, but that Plaintiff would probably be transferred. Id. Plaintiff contends a violation of the First Amendment.
7. Count Seven
On January 5, 2003, Plaintiff was taken back to classification and referred to IDDTT. Id. at 8. Defendant Skeen informed Plaintiff that he would be retained on single cell status. Id. Shortly after, Defendant C. Nelson, with Defendant Hansen present, asked Plaintiff why he did not want to be double-celled. Id. After Plaintiff told them, both Defendants laughed. Id. On February 25, 2003, Defendant Hansen, with Defendant Nelson present, called Plaintiff into the office and stated that he had spoken with Defendant McDill, who had cleared Plaintiff for double celling. Id. Plaintiff had never been evaluated by Defendant McDill. Id. On February 26, 2003, Defendant Hansen brought Plaintiff back to classification committee, chaired by Defendant Chapman. Id. Defendant Chapman asked why Plaintiff did not want to be double celled. After Plaintiff told the truth, Defendant Chapman stated, "Lock him up!" Plaintiff was placed in a holding cell to go to the "hole" (administrative segregation). Id. Plaintiff witnessed Defendant Chapman say to Defendant Hansen, "what do you really want to do with [Plaintiff]?" Id. Defendant Hansen replied that Plaintiff should be locked up. Defendant Skeen produced a 114-D lock up order, finding that there were no psychological issues to preclude double-celling." Id. This contradicted Plaintiff's previous chronos from January 16, 2003 and February 5, 2003. Id. Plaintiff contends a violation of the First and Eighth Amendment.
8. Count Eight
On February 27, 2003, Plaintiff was issued a CDC 115 authored by Defendant J. Ramos, which stated that Plaintiff attempted to cause conditions likely to threaten institutional security. Id. at 9. Defendant A. Lopez saw Plaintiff on February 28, 2003. Id. He told Plaintiff that the 115 was flimsy, and Plaintiff would go to classification committee on March 6, 2003. Id. On March 4, Plaintiff received a revised 115, which changed the charge to "threatening to kill a cell mate", which would result in a lengthy SHU term. Id. At the committee hearing on March 6, Defendant A. Lopez admitted that he had re-classified the 115, which was based on fabricated charges. Id. While at committee, Defendant K. Todd was extremely hostile towards Plaintiff, threatening to have him committed to a psychiatric facility if he continued to file grievances. Id. Defendant Todd had denied all of Plaintiff's grievances against Defendant Lopez. Id. Plaintiff contends a violation of the First Amendment.
9. Count Nine
Defendant S. Skeen began to try and coax Plaintiff into agreeing to take psychotropic medication, an attempt, Plaintiff contends, to render Plaintiff docile and passive and unable to pursue his First Amendment rights. Id. at 10. Defendant S. Skeen conspired to harm Plaintiff in furtherance of Defendant Todd's threats to have Plaintiff committed to a psychiatric facility. Id. Plaintiff contends a violation of the First and Eighth Amendment.
10. Count Ten
Plaintiff submitted a grievance contending misconduct by Defendants Lopez, Todd, Chapman, Hansen, Buentempo, Skeen, McDill, and Nelson. Id. at 11. On April 2, 2003, while in the hole, Defendants P. Matzen and J. Garza came to Plaintiff's cell door and displayed the inmate grievance. Id. Defendant Matzen asked whether Plaintiff was sure he wanted to proceed further with the appeal. Id. Defendant Garza slowly put on his black gloves to intimidate Plaintiff. Id. Plaintiff replied yes. Id. After Defendants Matzen and Garza left, Defendant A. Lopez appeared very soon after with Defendants Matzen and Garza. Id. Defendant Lopez shouted that Plaintiff would be put up for transfer, and threatening Plaintiff with violence. Id. Defendant Lopez repeatedly ordered Plaintiff to get out of his cell. Id. Plaintiff contends a violation of the First Amendment.
11. Count Eleven
On April 4, 2003, Defendant A. Lopez had Defendant Hopkins fabricate a 114 D lockup order for Plaintiff allegedly refusing numerous direct orders to exit his cell and be taken back to general population. Id. at 12. Plaintiff had requested in his inmate grievance to be retained in the hole to protect against further retaliation. Id. Plaintiff then received a CDC 115 authored by Defendant M. Dunlop. Id. The first hearing officer assigned to hear the rules violation, lieutenant Galvan, refused because no staff would say that they issued direct orders. Id. On May 22, 2003, Defendant J. L. Peterson appeared and found Plaintiff guilty without any evidence. Id. On May 23, 2003, Plaintiff was interviewed by Defendant Dunlop regarding an unrelated matter, and admitted that after he wrote the 115 at issue, Defendant discovered that no staff had given Plaintiff direct orders. Id. Defendants Lopez and Todd brought Plaintiff back to classification committee in absentia and released Plaintiff back to classification. Id. Plaintiff received a classification chrono dated April 3, 2003, authored by Defendants Lopez, White, Todd, and McLaughlin stating that Plaintiff had agreed to the committee's actions. Id. Plaintiff contends a violation of the First Amendment.
12. Count Twelve
On April 28, 2003, Plaintiff submitted an appeal against Defendants Todd, Lopez, White, and McLaughlin regarding the classification chrono. Id. at 13. On June 23, 2003, Plaintiff received a response, in which Defendant J. Gutierrez responded that Defendant L. Garcia had interviewed Plaintiff twice, and he refused to attend the classification because he did not want to be released back to general population. Id. Plaintiff contends that he never spoke to Defendant Garcia about anything, and that Defendants Garcia and Gutierrez had thus joined the conspiracy of retaliation against Plaintiff. Id. Plaintiff contends a violation of the First Amendment.
13. Count Thirteen
On June 17, 2003, Defendants Lopez, Zanchi, Chapman, Garza, Jones, Sherrit, Newby, Arellano, Watson, Genova, and G. Garcia conspired to fulfill Defendant Lopez's threat of cell-extraction. Id. at 14. Defendants Garza and J. Jones each discharged the entire contents of a MK-46 pepper spray dispenser into Plaintiff's cell. Id. After Defendant Garza emptied his dispenser, he opened the food port of Plaintiff's cell door and discharged the entire contents of a MK-9 pepper spray into the cell, transforming Plaintiff's cell into a proverbial gas chamber. Id. Plaintiff was denied medical care while in the holding cage. Id. Plaintiff summoned a medical MTA Deperio, who informed Plaintiff that the cell extraction was outside of policy because medical had not been notified. Id. Upon Plaintiff's arrival at Lancaster State Prison on June 17, 2003, Plaintiff forwarded an amended appeal to Defendant N. Grannis, chief of the inmate appeals branch, informing of Defendant Lopez's actions. Id. Plaintiff contends a violation of the First Amendment, and excessive force in violation of the Eighth Amendment. Id.
14. Count Fourteen
On July 7, 2003, Defendant N. Grannis sent a rejection notice to Plaintiff, stating that the office provided only the Director's level review. Id. at 15. On August 8, 2003, Plaintiff received this notice. Id. Plaintiff immediately made an attempt to submit an amendment to the appeal to Defendant S. Whitlach, appeals coordinator at CCI. Id. On September 16, 2003, Defendant Whitlach sent a response, rejecting Plaintiff's amendment, which Plaintiff received on December 25, 2003. Id. Plaintiff then wrote a letter to Defendant Whitlach, explaining that his amendment to the appeal had been forwarded in a timely manner, and returned the appeal back to Defendant Whitlach for processing. Id. at 16. On October 1, 2004, Defendant Whitlach refused to process the grievance because it was untimely. Id. Plaintiff then forwarded his appeal again to Defendant Grannis. On December 24, 2004, Defendant Grannis again rejected the appeal, for the same reason. On January 11, 2005, Plaintiff again submitted his appeal, this time including an additional inmate grievance against Defendants Grannis and Whitlach. Id. On June 25, 2005, Plaintiff received a response from Defendant Grannis, which Plaintiff believes is a reversal of Defendant Grannis's previous position. Id. at 16-17. The response returned Plaintiff's appeal, and also stated that the matter had been fully adjudicated and a decision rendered. Id. Plaintiff believes Defendants Grannis and Whitlach are part of a conspiracy against Plaintiff. Id.
Plaintiff contends a violation of the Supremacy Clause, 18 U.S.C. §§ 1961, 1962(d), and 1341, RICO (Racketeer Influenced and Corrupt Organizations Act), and California Penal Code section 520.
15. Count Fifteen
On October 12, 2010, the Ninth Circuit reversed and remanded to this Court in part. Id. at 18. The undersigned initiated the retaliation against Plaintiff by sending an "advance copy" of Plaintiff complaint to prison officials. Id. Plaintiff filed a motion for injunctive relief to restore Plaintiff's single cell status at Kern Valley State Prison ("KVSP"). Id. On September 22, 2010, Defendant Kenneth Roost, deputy attorney general for the state of California, committed mail fraud by submitting a notice that he had been substituted as counsel of record in this action. Id. Plaintiff forwarded his motion for injunctive relief to Defendant Roost. Id. Defendant Roost committed further mail fraud by responding to Plaintiff and stating that he had forwarded Plaintiff's motion to Defendant John Riches, counsel of record for Defendants. Id.
On October 29, 2010, Defendant W. Epperson, correctional sergeant at KVSP, stated to Plaintiff that the director of corrections in Sacramento had ordered Plaintiff and his cell mate to be separated. Id. at 19. Plaintiff was then moved to another cell with inmate Tate, who is allegedly a convicted rapist and twice Plaintiff's size. Id. Plaintiff contends a conspiracy by the undersigned, Defendants Riches, Roost, and KVSP. Id.
District Judge O'Neill and Flores, a clerk at the Eastern District of California, then engaged in "retaliation" by forwarding an order reopening this case to the Fresno Parole department, even though Plaintiff was not incarcerated there. Id. at 20. Plaintiff contends that this was a conspiracy to have Plaintiff's second amended complaint dismissed. Id. On January 18, 2011, Plaintiff filed a judicial misconduct complaint with the Ninth Circuit, complaining of the undersigned and Judge O'Neill's actions. Id.
On February 3, 2011, Defendant M. Stewart summoned Plaintiff to the program office to attempt to intimidate Plaintiff into accepting being locked in the hole to be protected from Defendant Epperson. Id. This failed, at which point Defendant Stewart threatened to throw Plaintiff in the hole for no reason. Id. Plaintiff contends that this was a conspiracy to have Plaintiff's second amended complaint dismissed. Id. Plaintiff filed grievances regarding this incident, and forwarded them to both Defendants M. D. Biter, acting warden of KVSP, and Defendant secretary Matthew Cate, neither of whom responded. Id.
On February 16, 2011, Defendants J. Hernandez and M. Marin arrived at Plaintiff's cell from Defendant Stewart's office. Id. Defendants Hernandez and Marin claimed to be conducting a random cell search. Id. After Plaintiff was out of view of potential inmate witnesses, Defendants Hernandez and Marin proceeded to throw Plaintiff to the ground and punch and kick him in the face and head. Defendant Epperson stated that those judges are going to make sure that Plaintiff died in prison. Defendant Stewart intimidated a licensed vocational nurse Negre into cataloging Plaintiff's injuries as minor. Id. Plaintiff was thrown in the hole on fabricated charges of a plastic weapon. Id. at 21. Defendants Hernandez, Marin, Page, Stewart, Epperson, and T. S. Arlitz's names appear on Plaintiff's rules violation report. Id.
On March 7, 2011, Plaintiff filed a complaint with the Ninth Circuit regarding Judge O'Neill and the undersigned's conduct. Id. On March 9, 2011, the undersigned ordered Plaintiff to file a third amended complaint, limiting Plaintiff's pleadings to twenty-five pages. Id. The undersigned also issued a Findings and Recommendations to deny Plaintiff's motion for injunctive relief.*fn2 Id. Plaintiff contends mail fraud because an order from the Court was mislabeled. Id.
Defendant Ostrander found Plaintiff guilty on the false rules violation report. Id. On March 6, 2011, Plaintiff was interviewed by Defendant Campagna regarding his grievances, who refused to hear Plaintiff's beating. Id. On March 8, 2011, Plaintiff filed an inmate grievance against Defendant Campagna. Id. On March 23, 2011, appeals coordinator Defendant J. Acebedo screened out Plaintiff's appeal, and on March 29 and April 7 of 2011, Defendants S. Tallerico and D. Tarnoff did the same. Id. On May 11, 2011, Plaintiff received a letter from Defendant D. Lee on behalf of Defendant Cate, advising Plaintiff to file a complaint with the inspector general. Id.
Plaintiff contends a violation of the First, Fifth, and Eighth Amendment, 18 U.S.C. §§ 1951, 1961, 1962(b), and 1341, the Hobbs Act, and RICO.
16. Count Sixteen
Plaintiff contends that the Prison Litigation Reform Act violates the Supremacy Clause, the First, Fifth, and Fourteenth Amendments, and the Sherman Act. Id. The PLRA allows the CDCR to screen out administrative appeals for the purposes of denying inmates the ability to exhaust administrative remedies. Id.
Plaintiff requests as relief an injunction restoring Plaintiff's single cell status, an investigation by the office of Internal Affairs into the false rules violation reports, and trial by jury. Id. at 25.
A. Statute of Limitations
Defendants contend that part or all of Plaintiff's claims from Counts One through Seven, Nine, Ten, Thirteen, and Fourteen are barred by the applicable statute of limitations, and are not preserved by the relation back or equitable tolling doctrines. Defs.' Mem. P. & A. 3:5-9:9. Defendants contend that all of Plaintiff's allegations concerning events that occurred in 2002 are barred. Because the Court had ordered Plaintiff to re-file his allegations in his second amended complaint into this third amended complaint, the filing date of May 3, 2006 will be used here.*fn3
Because § 1983 contains no specific statute of limitations, federal courts should borrow state statutes of limitations for personal injury actions in § 1983 suits. See Wallace v. Kato, 549 U.S. 384, 387 (2007); Alameda Books, Inc. v. City of L.A., 631 F.3d 1031, 1041 (9th Cir. 2011); Lukovsky v. City of San Francisco, 535 F.3d 1044, 1048 (9th Cir. 2008). Federal courts should also borrow all applicable provisions for tolling the limitations period found in state law. Wallace, 549 U.S. at 387. California's statute of limitations for an action for a personal injury caused by the wrongful or negligent act of another is two years from the date of accrual. Cal. Civ. Proc. Code § 335.1 (2009).*fn4 Federal law determines when a cause of action accrues and the statute of limitations begins to run for a § 1983 claim. Lukovsky, 535 F.3d at 1048. A federal claim accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action. Id.
Plaintiff contends that he is entitled to equitable tolling for the time period in which he attempted to exhaust administrative remedies. Pl.'s Opp'n 7-8. Plaintiff is correct. See Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005) (holding that "the applicable statute of limitations must be tolled while a prisoner completes the mandatory exhaustion process."). However, Plaintiff receives only two years under California law for the applicable statute of limitations. The exhaustion of administrative remedies would still have to account for the time period from when the claim first accrued to the lodging of Plaintiff's second amended complaint on May 5, 2006. Plaintiff's complaint lists the inmate grievances that he filed regarding each incident.
However, Defendants have not presented further arguments or other evidence regarding the statute of limitations. Because statute of limitations is an affirmative defense, Fed. R. Civ. P. 8(c)(1), and Defendants have not presented evidence regarding equitable tolling and the exhaustion of administrative remedies, Defendants' motion to dismiss for statute of limitations should be denied.
B. Relation Back
Defendants further contend that the relation back doctrine does not apply, citing to Mayle v. Felix, 545 U.S. 644 (2005). Defs.' Mem. P. & A. 7:2-8:2. Plaintiff contends that all his claims arose out of a series of transactions or occurrences, citing Federal Rule of Civil Procedure 15(c)(2). Pl.'s Opp'n 12.
The parties are incorrect as to the proper relation back standard. Under Ninth Circuit law, for § 1983 claims, the relation back doctrine is governed by state law, as it is a matter related to the statute of limitations. Merritt v. County of Los Angeles, 875 F.2d 765, 768 (9th Cir. 1989); Cabrales v. County of Los Angeles, 864 F.2d 1454, 1463 (9th Cir. 1988). Additionally, it appears that the parties are conflating amendment of pleadings with supplemental pleadings. It is Plaintiff's supplemental pleadings which are at issue here.*fn5
Under California law, 'Whether the supplemental complaint may encompass the . . . period following commencement of suit, despite the statute of limitations, will depend upon the nature of the claims raised in the supplemental pleading. If those claims are unrelated to those alleged in the initial complaint, or rely on conduct or events different from those involved in the original action, the statute of limitations should be applied.  Where, however, the original pleading gave notice that the wrongful conduct was of a continuing nature, supplemental pleadings addressed to the same conduct should not encounter statute of limitations questions.'
Bendix Corp. v. City of L.A., 150 Cal. App. 3d 921, 926 (1984) (quoting William Inglis & Sons Baking Co. v. Itt Cont'l Baking Co., 668 F.2d 1014, 1057 (9th Cir. 1981) (citing Rule 15(d) of the Federal Rules of Civil Procedure)); cf. Lee v. Bank of America NTSA, 27 Cal. App. 4th 197, 214 (1994) (finding that pleadings filed in amended complaint were not supplemental pleadings as they were unrelated).
Plaintiff's second amended complaint "gave notice that the wrongful conduct was of a continuing nature." Counts One through Twelve of the second amended complaint, which have been fully adjudicated, alleged a continued series of retaliation for Plaintiff filing inmate grievances. Plaintiff's supplemental pleadings alleged more retaliation as a result of Plaintiff filing a complaint regarding those grievances. Thus, for purposes of relation back, Plaintiff's claims are related to the original pleadings. Accordingly, the Court finds no statute of limitations concerns for Plaintiff's claims in Counts One through Seven, Nine, Ten, Thirteen, and Fourteen.
C. Permissive Joinder
Defendants contend that the newly added Defendants, forty-four in total, are improperly joined in this action pursuant to Rule 20(a)(2) of the Federal Rules of Civil Procedure. Defs.' Mem. P. & A. 12:21-13:12. Plaintiff contends that he does comply with Rule 20. Pl.'s Opp'n 23.
Pursuant to Federal Rule of Civil Procedure 20(a)(2), defendants may be joined in one action if "(A) any right to relief is asserted against them jointly, severally, or with respect to or arising out of the same transaction, occurrence, or series of transaction or occurrences; and (B) any question of law or fact common to all defendants will arise in the action." Plaintiff contends that there is a conspiracy against Plaintiff by all Defendants named in this action to retaliate against him for exercising his First Amendment rights. If Plaintiff sufficiently alleged a conspiracy or RICO violation, then all Defendants would be properly joined, as the right to relief against all Defendants would arise from the same series of transaction or occurrences.
RICO, 18 U.S.C. §§ 1961-1968, allows a private citizen to sue to recover treble damages for injury "by reason of a violation of section 1962," which prohibits conducting or participating in the conduct of an enterprise through a pattern of racketeering activity or through the collection of an unlawful debt. 18 U.S.C. §1962. A violation of § 1962(c) requires 1) conduct 2) of an enterprise 3) through a pattern 4) of racketeering activity. Sedima, S.P.R.L. v. Imrex Co., 473 U.S.479, 496 (1985). Furthermore, the plaintiff must actually be injured by the conduct which purportedly violates 18 U.S.C. § 1962. Id. Plaintiff alleges a violation of 18 U.S.C. § 1962(d). Plaintiff's allegations are insufficient to state a claim for violation of RICO. Plaintiff makes only a bare allegation of a violation of RICO, which fails to state a claim. Iqbal, 129 S. Ct. at 1949.
A conspiracy claim brought under § 1983 requires proof of "'an agreement or meeting of the minds to violate constitutional rights,'" Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2001) (quoting United Steel Workers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1540-41 (9th Cir. 1989) (citation omitted)), and an actual deprivation of constitutional rights, Hart v. Parks, 450 F.3d 1059, 1071 (9th Cir. 2006) (quoting Woodrum v. Woodward County, Oklahoma, 866 F.2d 1121, 1126 (9th Cir. 1989)). "'To be liable, each participant in the conspiracy need not know the exact details of the plan, but each participant must at least share the common objective of the conspiracy.'" Franklin, 312 F.3d at 441 (quoting United Steel Workers, 865 F.2d at 1541).
The federal system is one of notice pleading, and the court may not apply a heightened pleading standard to plaintiff's allegations of conspiracy. Empress LLC v. City and County of San Francisco, 419 F.3d 1052, 1056 (9th Cir. 2005); Galbraith v. County of Santa Clara, 307 F.3d 1119, 1126 (2002). However, although accepted as true, the "[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level . . . ." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A plaintiff must set forth "the grounds of his entitlement to relief[,]" which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action . . . ." Id. (internal quotations and citations omitted). As such, a bare allegation that Defendants conspired to violate Plaintiff's constitutional rights will not suffice to give rise to a conspiracy claim under § 1983. Plaintiff's conclusion that all perceived adverse action against Plaintiff is a conspiracy is a legal conclusion and does not rise to the level of a plausible claim. Iqbal, 129 S. Ct. at 1949-50.
Because no conspiracy or RICO claim exists to link all Defendants in this action, the Court examines Plaintiff's claims in more detail to determine whether all claims arise from the same series of transactions or occurrences.
D. Claims At KVSP
Plaintiff's claims arising at KVSP, Count Fifteen, are unrelated to the claims arising at CCI, as they do not arise from the same series of transactions or occurrences. The only link between the series of transactions at the two prisons is Plaintiff's bare allegations of RICO and conspiracy, which fail to state a claim. For the sake of judicial economy, the Court will screen Plaintiff's claims against deputy attorney generals Kenneth Roost and John Riches, District Judge O'Neill, E. Flores, and the undersigned. Plaintiff's other claims arising at KVSP will be dismissed from this action, without prejudice to filing in a new, separate action.
Plaintiff's allegation that Judge O'Neill, E. Flores, Kenneth Roost, and John Riches engaged in mail fraud fails to state a claim. Mail fraud, codified at 18 U.S.C. § 1341, is not actionable under 42 U.S.C. § 1983. See Wilcox v. First Interstate Bank, 815 F.2d 522, 533 n.1 (9th Cir. 1987) (recognizing that no private right of action exists under 18 U.S.C. § 1341). Plaintiff likewise cannot raise a § 1983 claim based on the Hobbs Act, 18 U.S.C. § 1951, for federal criminal extortion. In order to seek redress under § 1983, there must be a private cause of action. Blessing v. Freestone, 520 U.S. 329, 340-41 (1997). No private cause of action exists for 18 U.S.C. § 1951.
If Plaintiff is alleging retaliation against Judge O'Neill, E. Flores, Kenneth Roost, John Riches, and the undersigned, Plaintiff fails to state a claim. Allegations of retaliation against a prisoner's First Amendment rights to speech or to petition the government may support a § 1983 claim. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). "Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate'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).
As stated previously in other orders, Plaintiff's mail being sent to the wrong address was an unintentional error, and promptly corrected when brought to the Court's attention. Plaintiff's contention that Judge O'Neill, the undersigned, or E. Flores attempted to have Plaintiff's complaint dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure is speculative. Plaintiff's action still proceeds. Thus, there is no allegation of an adverse action because of Plaintiff's First Amendment conduct, and no cognizable retaliation claim. Likewise, Defendant Roost's alleged conduct in telling Plaintiff that he had sent a notice that he had forwarded Plaintiff's motion for injunctive relief, without having done so, is not adverse action because of Plaintiff's First Amendment conduct.
Plaintiff's contention that the undersigned sent an advance copy of Plaintiff's complaint to any Defendants fails to state a claim. A review of the court's docket reveals that no documents were sent by the Court regarding this action until February 12, 2002. Plaintiff's contention that the undersigned sent any documents to prison officials between January 4 to January 30 of 2002 is without merit. Plaintiff's allegations of retaliation fail to state a claim, as Plaintiff has not alleged facts which demonstrate that the undersigned took adverse action against Plaintiff because of Plaintiff's protected conduct. Additionally, both the undersigned and Judge O'Neill are entitled to judicial immunity for all conduct taken in the course of their official capacities. See Mireles v. Waco, 502 U.S. 9, 9 (1991) (per curiam); Moore v. Brewster, 96 F.3d 1240. 1243 (9th Cir. 1996); Tanner v. Heise, 879 F.2d 572, 576-78 (9th Cir. 1989).
E. Claims at CCI
1. Counts One and Two
Plaintiff states a cognizable claim for relief against Defendants Wenneker, Pazo, and Tidwell for retaliation in violation of the First Amendment for depriving Plaintiff of his property because he filed a civil rights complaint. Plaintiff fails to state a claim for relief against Defendants Blevins and Robinson for retaliation. Plaintiff alleges that Defendants Blevins and Robinson received Plaintiff's property, which was never returned. These allegations do not demonstrate that Defendants Blevins and Robinson acted adversely because of Plaintiff's complaint.
2. Count Three
Plaintiff states a cognizable claim for relief for retaliation in violation of the First Amendment against Defendant Lopez for firing Plaintiff because he had filed this action and an inmate grievance.
3. Count Four
Plaintiff fails to state a claim for relief under the First Amendment against Defendants Blevins and Robinson for opening Plaintiff's mail. Prisoners have "a First Amendment right to send and receive mail." Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995). Prison regulations relating to the regulation of incoming mail are analyzed under the Turner reasonableness standard set forth in Turner v. Safley, 482 U.S. 78, 89-91 (1987). Prison Legal News v. Lehman, 397 F.3d 692, 699 (9th Cir. 2005) (citing Thornburgh v. Abbott, 490 U.S. 401, 408 (1989)). The regulation is valid if it is reasonably related to legitimate penological interests. Turner, 482 U.S. at 89. In determining the reasonableness of the regulation, the court must consider the following factors: (1) whether there is a "valid, rational connection between the regulation and the legitimate government interest put forward to justify it," (2) "whether there are alternative means of exercising the right," (3) the impact that the "accommodation of the asserted constitutional right will have on guards and other inmates," and (4) "the absence of ready alternatives." Id. at 89-90.
However, mail from public officials or agencies does not necessarily have to be treated as legal mail. See Mann v. Adams, 846 F.2d 589, 590-91 (9th Cir. 1988) (per curiam) (finding that mail from public agencies, public officials, civil rights groups, and news media may be opened outside the prisoner's presence in light of security concerns). Furthermore, "[m]ail from the courts, as contrasted to mail from a prisoner's lawyer, is not legal mail." Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir. 1996), amended by 135 F.3d 1318 (9th Cir. 1998). Here, it is unclear to what mail Plaintiff refers, as the court docket reflects that no documents were sent from the Court to Plaintiff regarding this action between January 4 and January 30 of 2002. Nonetheless, mail from the Court is not generally confidential and thus is not legal mail. There does not appear to be a First Amendment violation for opening mail from the court outside of Plaintiff's presence.
Plaintiff also fails to state a claim for relief for denial of access to the courts. Inmates have a fundamental constitutional right of access to the courts. Lewis v. Casey, 518 U.S. 343, 346 (1996); Silva v. Di Vittorio, 658 F.3d 1090, 1101-02 (9th Cir. 2011). The right of access to the courts is the right to bring to court a grievance the inmate wishes to present, and is limited to direct criminal appeals, habeas petitions, and civil rights actions. Lewis, 518 U.S. at 354. To bring a claim, a prisoner must have suffered an actual injury by being shut out of court. Christopher v. Harbury, 536 U.S. 403, 415 (2002); Lewis, 518 U.S. at 351; Phillips v. Hust, 588 F.3d 652, 655 (9th Cir. 2009). Plaintiff alleges no facts which indicate that he has been shut out of court by Defendants through any alleged interference.
4. Count Five
Plaintiff fails to state a claim against Defendants D. Chapman, E. Hanson, S. Buentempo, Dr. S. Skeen, Dr. McDill, A. Lopez, C. Nelson, and K. Todd for fabricating Rules Violation Reports as retaliation. Plaintiff's legal conclusions are insufficient to demonstrate retaliation. Iqbal, 129 S. Ct. at 1949-50.
5. Count Six
Plaintiff states a claim against Defendant Chapman for retaliation in violation of the First Amendment. Plaintiff alleges Defendant Chapman, in response to Plaintiff filing an inmate grievance regarding being fired from his job by Defendant Lopez, had Plaintiff put up for transfer to another prison. This transfer was subsequently cancelled. However, a retaliatory prison transfer may be an adverse action for purposes of retaliation. Gomez v. Vernon, 255 F.3d 1118, 1127-28 (9th Cir. 2001).
6. Count Seven
Plaintiff fails to state a claim against Defendants Hanson, Chapman, McDill, and Skeen for retaliation in violation of the First Amendment. The only action taken against Plaintiff was the removal of his single cell status. However, Plaintiff alleges no facts which demonstrate that the removal of single cell status is an adverse action, or that it was taken because of Plaintiff's protected First Amendment conduct. See Brodheim v. Cry, 584 F.3d 1262, 1269-70 (9th Cir. 2009) (correct standard for adverse action is whether a person of ordinary firmness would have been chilled in the exercise of his First Amendment rights). Merely losing single cell status is insufficient to demonstrate a chilling of Plaintiff's First Amendment rights.
Plaintiff fails to allege a retaliation claim for placing Plaintiff in administrative segregation. Plaintiff fails to allege facts which demonstrate that his placement in administrative segregation was because of any protected First Amendment conduct by Plaintiff.
Plaintiff also fails to link Defendant McDill to any retaliatory actions. Plaintiff contends that he was never seen by Defendant McDill. Thus, it would appear that Defendant McDill was not involved in having Plaintiff removed from single cell status.
Plaintiff fails to state a claim against Defendants Hanson, Chapman, McDill, and Skeen for violation of the Eighth Amendment. The Eighth Amendment protects prisoners from inhumane methods of punishment and from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Extreme deprivations are required to make out a conditions of confinement claim, and only those deprivations denying the minimal civilized measure of life's necessities are sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian, 503 U.S. 1, 9 (1992) (citations and quotations omitted). In order to state a claim for violation of the Eighth Amendment, the plaintiff must allege facts sufficient to support a claim that prison officials knew of and disregarded a substantial risk of serious harm to the plaintiff. E.g., Farmer v. Brennan, 511 U.S. 825, 847 (1994); Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). Plaintiff alleges no facts which demonstrate that prison officials knew of and disregarded an excessive risk of serious harm to Plaintiff's health or safety by removing Plaintiff from single cell status. See Rhodes v. Chapman, 452 U.S. 337, 347-48 (1981) (finding that double-celling at maximum security prison did not violate the Eighth Amendment since prisoners were not deprived of essential food, medical care, or sanitation, nor did double-celling increase violence or other intolerable conditions of confinement).
7. Count Eight
Plaintiff states a cognizable retaliation claim against Defendants K. Todd and A. Lopez. Defendant K. Todd allegedly threatened to have Plaintiff transferred to a psychiatric facility because of all the grievance that he filed. Defendant Lopez allegedly changed Plaintiff's CDC 115 report to threatening to kill a cell mate. Based on the previous allegations against Defendant Lopez, it is reasonable to infer that Defendant Lopez did this because of Plaintiff filing a civil rights complaint and inmate grievances against him.
Plaintiff fails to state a cognizable claim against Defendant Ramos. Plaintiff fails to allege facts which demonstrate that Defendant Ramos took adverse action against Plaintiff because of Plaintiff's protected First Amendment conduct.
8. Count Nine
Plaintiff fails to state a claim against Defendant Skeen for retaliation in attempting to coax Plaintiff to take psychotropic medication. Plaintiff alleges no adverse action by Defendant Skeen. Coaxing Plaintiff to take psychotropic medication does not demonstrate a chilling effect on Plaintiff's First Amendment rights. Plaintiff's contention that Defendant Skeen wanted to make Plaintiff docile so that he would no longer exercise his First Amendment rights is speculative.
Plaintiff fails to state a claim against Defendant Skeen for violation of the Eighth Amendment. Plaintiff alleges no facts which demonstrate that she knew of an disregarded an excessive risk of serious harm to Plaintiff's health by coaxing Plaintiff to take psychotropic medication. There is no allegation that demonstrate Plaintiff faced a sufficiently serious harm. Farmer, 511 U.S. at 834.
9. Count Ten
Plaintiff states a cognizable retaliation claim against Defendants Metzen, Garza, and Lopez. Plaintiff alleges that Defendants Metzen and Garza attempted to intimidate Plaintiff regarding the filing of his inmate grievance. Plaintiff alleges Defendant Lopez threatened Plaintiff with violence and with being transferred to another prison because of the grievance.
Plaintiff does not state a claim against Defendants Todd, Chapman, Hansen, Buentempo, Skeen, McDill, and Nelson regarding this incident.
10. Count Eleven
Plaintiff fails to state a retaliation claim against Defendant Hicks for authoring a CDC 114 D order to place Plaintiff in administrative segregation for allegedly refusing a direct order. Plaintiff alleges no facts which demonstrate that Defendant Hicks authored the order because of Plaintiff's protected First Amendment conduct. Plaintiff states a cognizable retaliation claim against Defendant Lopez. Plaintiff alleges that Defendant Lopez had directed Defendant Hicks to author the report, which based on previous allegations, indicates it was done because Plaintiff had filed inmate grievances against him. Plaintiff fails to state a retaliation claim against Defendant Dunlop, who authored the CDC 115 Rules Violation Report. Plaintiff alleges no facts that indicate Defendant Dunlop took adverse action because of Plaintiff's protected First Amendment conduct.
Plaintiff fails to state a retaliation claim against Defendant Peterson. Plaintiff alleges no facts which demonstrate that Defendant Peterson finding Plaintiff guilty of the Rules Violation Report was done because of Plaintiff's First Amendment conduct.
Plaintiff fails to state a retaliation claim against Defendants Lopez, White, Todd, and McLaughlin regarding the classification committee's actions. Plaintiff alleges no facts which demonstrate that Defendants Lopez, White, Todd, and McLaughlin took adverse action against Plaintiff because of Plaintiff's First Amendment conduct.
11. Count Twelve
Plaintiff fails to state a retaliation claim against Defendants Gutierrez and Garcia. Plaintiff alleges that Defendant Gutierrez responded to Plaintiff's grievance by stating that Defendant Garcia had interviewed Plaintiff, which Plaintiff maintains did not occur. This allegation does not indicate that Defendants Gutierrez or Garcia took adverse action against Plaintiff because of Plaintiff's First Amendment activities.
12. Count Thirteen
Plaintiff states a cognizable claim for excessive force against Defendants Garza and Jones. "What is necessary to show sufficient harm for purposes of the Cruel and Unusual Punishments Clause [of the Eighth Amendment] depends upon the claim at issue . . . ." Hudson v. McMillian, 503 U.S. 1, 8 (1992). "The objective component of an Eighth Amendment claim is . . . contextual and responsive to contemporary standards of decency." Id. (internal quotation marks and citations omitted). The malicious and sadistic use of force to cause harm always violates contemporary standards of decency, regardless of whether or not significant injury is evident. Id. at 9; see also Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002) (Eighth Amendment excessive force standard examines de minimis uses of force, not de minimis injuries)). However, not "every malevolent touch by a prison guard gives rise to a federal cause of action." Hudson, 503 U.S. at 9. "The Eighth Amendment's prohibition of cruel and unusual punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort 'repugnant to the conscience of mankind."
Id. at 9-10 (internal quotations marks and citations omitted).
Plaintiff alleges that Defendant Garza emptied two canisters of pepper spray into Plaintiff's cell, while Defendant Jones emptied one canister. This is sufficient to allege a claim for excessive force.
Plaintiff fails to state a claim regarding being denied medical care while in the holding cage. Plaintiff fails to allege facts which link any Defendants to an act or failure to act with knowledge and disregard of an excessive risk to Plaintiff's health. Farmer, 511 U.S. at 837.
Plaintiff fails to allege a retaliation claim against Defendants Lopez, Zanchi, Chapman, Garza, Jones, Sherrit, Newby, Arellano, Watson, Genova, and G. Garcia as to Count Thirteen. Plaintiff fails to allege facts which demonstrate that adverse action was taken against Plaintiff because of Plaintiff's First Amendment conduct. Plaintiff's bare allegations of conspiracy are insufficient to support the claim.
13. Count Fourteen
Plaintiff fails to state a claim against Defendants Grannis and Whitlach for any violation. Plaintiff contends that Defendants screened out Plaintiff's grievances improperly. There is no constitutional entitlement to a specific prison grievance procedure. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir.1988)). Plaintiff's claim for violation of California Penal Code section 520, for extortion, is not a cause of action under state law, as that is a criminal statute. To the extent that Plaintiff cites this section as a predicate act for purposes of RICO, Plaintiff has not alleged a viable RICO claim.
14. Count Sixteen
Plaintiff fails to state a claim that 42 U.S.C. § 1997e(a) violates the Supremacy Clause. The Supremacy Clause states, "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. art. VI, cl. 2. "[T]he dispositive issue in any federal preemption questions remains congressional intent." Aguayo v. U.S. Bank, 653 F.3d 912, 918 (9th Cir. 2011) (citing Barnett Bank of Marion Cnty., N.A. v. Nelson, 517 U.S. 25, 30 (1996)). The question to ask is, "'[d]id congress, in enacting the Federal Statute, intend to exercise its constitutionally delegated authority to set aside the laws of a State? If so, the Supremacy Clause requires courts to follow federal, not state, law.'" Id. (quoting Barnett Bank of Marion Cnty., 517 U.S. at 30).
A review of 42 U.S.C. § 1997e(a), and of the PLRA, indicates that Congress specifically declined to set aside the laws of a state with regards to exhaustion of administrative remedies. See Porter v. Nussle, 534 U.S. 516, 524-25 (2002) ("Beyond doubt, Congress enacted § 1997e(a) to reduce the quantity and improve the quality of prisoner suits; to this purpose, Congress afforded corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.") (emphasis added). Administrative remedies are pursued through a prison's system, and defined by the prison. See Jones v. Bock, 549 U.S. 199, 218 (2007) ("[T]o properly exhaust administrative remedies prisoners must complete the administrative review process in accordance with the applicable procedural rules -- rules that are defined not by the PLRA, but by the prison grievance process itself.") (internal citations and quotations omitted). Plaintiff thus fails to state a claim for violation of the Supremacy Clause.
Plaintiff also fails to state a claim for violation of the First, Fifth, and Fourteenth Amendments. Plaintiff alleges no facts that demonstrate § 1997e(a) violates any of these Amendments.
Plaintiff fails to state a claim for violation of the Sherman Act. Liability under the Sherman Act, 15 U.S.C. § 1, "requires a 'contract, combination . . ., or conspiracy, in restraint of trade or commerce." Twombly, 550 U.S. at 548. There are no allegations that any restraint of trade or commerce has occurred.
F. Equitable Relief
Plaintiff requests as relief single cell status at his current prison of incarceration, KVSP. Because the Court will dismiss Plaintiff's claims arising at KVSP from this action, Plaintiff's request for equitable relief will be moot. Plaintiff is no longer incarcerated at CCI. Andrews v. Cervantes, 493 F.3d 1047, 1053 n.5 (9th Cir. 2007) (citing Johnson v. Moore, 948 F.2d 517, 510 (9th Cir. 1991) (per curiam)). The Court has no jurisdiction to determine the rights of parties not before it. Zepeda v. United States Immigration & Naturalization Serv., 753 F.2d 719, 727 (9th Cir. 1983); see Fed. R. Civ. P. 65(d). The Court also lacks jurisdiction over the Office of Internal Affairs, as Internal Affairs is not a party to this action. Thus, the Court will not be able to grant any of Plaintiff's requests for equitable relief. Because equitable relief was the only relief requested, the Court cannot grant any of Plaintiff's requests for relief.
G. Leave To Amend
The Court will recommend granting Plaintiff leave to amend as to his requests for relief. Because Plaintiff was provided with the pleading requirements, the Court will recommend that no further leave to amend be granted as to Plaintiff's other claims.
V. Conclusion And Recommendation
Based on the foregoing, it is HEREBY RECOMMENDED that:
1. Defendants' motion to dismiss, filed June 24, 2011, be GRANTED in part and DENIED in part as stated herein;
2. This action should proceed on Plaintiff's third amended complaint, filed June 9, 2011, against
a. Defendants Wenneker, Pazo, Tidwell, Chapman, Lopez, K. Todd, Metzen, and Garza for retaliation in violation of the First Amendment as stated herein;
b. Defendants Garza and Jones for excessive force in violation of the Eighth Amendment as stated herein;
3. Plaintiff's other claims which failed to state a claim, as stated herein, be dismissed with prejudice;
4. Plaintiff be granted twenty (20) days from the date of service of the district judge's order regarding these Findings and Recommendations in which to amend his request for relief;
5. Plaintiff's remaining claims arising at KVSP be dismissed without prejudice to filing in a new, separate action; and
6. Defendants R. Blevins, M. Robinson, S. Hanson, McDill, Skeen, Sherrit, Newby, D. Zanchi, Arellano, Watson, Genova, L. Garcia, G. Garcia, J. Ramos, S. Hopkins, M. Dunlop, S. Buentempo, J. L. Peterson, D. White, V. McLaughlin, J. Gutierrez, Whitlach, Grannis, Tarnoff, Tallerico, J. Acebedo, Stewart, Epperson, J. Hernandez, Ostrander, Campagna, M. D. Biter, E. Negre, Matthew Cate, D. Lee, R. Keldgord, John W. Riches, Dennis L. Beck, Lawrence J. O'Neill, E. Flores, Kenneth Roost, D. Page, and T. S. Arlitz, be dismissed.
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within thirty (30) days after being served with these Findings and Recommendations, the parties may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).
IT IS SO ORDERED.