The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner, in the custody of the California Department of Corrections and Rehabilitation ("CDCR"), who is incarcerated in the Segregated Housing Unit ("SHU") at Pelican Bay State Prison ("PBSP"). Plaintiff proceeds without counsel, and in forma pauperis, in this action filed pursuant to 42 U.S.C. § 1983. Plaintiff challenges his validation as an associate of the Mexican Mafia ("EME") prison gang, and matters related to that process and decision. Pending is defendants' motion to dismiss. (Dkt. Nos. 29, 30.)*fn1 Plaintiff filed an opposition (Dkt. No. 39); defendants filed a reply (Dkt. No. 42). For the reasons that follow, this court recommends that defendants' motion be granted in part, and that plaintiff be granted leave to file a Second Amended Complaint, subject to the limitations set forth herein.
This action proceeds on plaintiff's First Amended Complaint, filed on March 22, 2010. (Dkt. No. 14.) Attached thereto are, inter alia, copies of plaintiff's pertinent administrative grievances. The court sets forth both the allegations of the complaint, and the substance of plaintiff's relevant administrative grievances.
A. The First Amended Complaint
The First Amended Complaint ("complaint") identifies twenty-seven
"causes of action"*fn2 against eighteen defendants,*fn3
based on the following factual allegations.
Plaintiff alleges that, on July 2, 2008, when he was incarcerated at California State Prison-Sacramento ("CSP-SAC"), he was served with a gang validation packet by defendant Stewart, a CSP-SAC Correctional Sergeant and Institutional Gang Investigator ("IGI"). The packet identified plaintiff as an associate of the Mexican Mafia prison gang known as "EME," based on six "source items." Plaintiff was placed in administrative segregation ("ad seg") pending the outcome of the validation process, and was so informed by defendant Ventimiglia, CSP-SAC IGI Lieutenant, who had prepared the gang validation packet.
The six source items in plaintiff's validation packet were the following: (1)-(3) as set forth in three confidential memoranda ("CM"), three separate "gang rosters" listing plaintiff as an active EME associate, obtained pursuant to cell searches of three validated EME associates (conducted on June 2, 2008, September 26, 2007, and December 4, 2006); these rosters allegedly identify plaintiff by his gang moniker, CDCR number, and geographical gang neighborhood (see Dkt. No. 14 at 39-41, 92-94);*fn4 (4) an informational chrono (CDC 128B), dated July 11, 2005, prepared by defendant Parilla (a correctional officer and Assistant IGI at California Correctional Institution ("CCI"), in Tehachapi), that identifies one of the addresses in plaintiff's address book as a "mail drop" address of a validated EME gang associate*fn5 (id. at 42, 97); (5) a CM, prepared on February 26, 2003, by defendant Parilla, that identifies plaintiff as the inmate "responsible for conducting the 'Roll Call' of EME subservient inmates housed at CCI"*fn6 (id. at 43, 95); and (6) a CM prepared on July 17, 2002, by defendant Parilla, stating that plaintiff had, on March 4, 2002, battered another inmate "on behalf of a validated EME Member housed at CCI" (id. at 44, 96). Each of these matters -- with the apparent exception of No. 4 (regarding plaintiff's address book) -- was set forth in a "Confidential Information Disclosure Form" (CDC 1030).
Plaintiff alleges that, on July 3, 2008, he was served with a 114-D Lock-up Order (an "Administration Segregation Unit Placement Notice"), by defendant Ramos, CSP-SAC Captain. The order stated that plaintiff would remain in ad seg pending the investigation of his proposed validation. Plaintiff states that, "at this point," he requested the assistance of an "Investigative Employee" ("IE") in the preparation of his defense, but Ramos denied the request. Plaintiff alleges that he filed a grievance on July 4, 2008, challenging such denial, but never received a response. Plaintiff states that he filed a second grievance on August 24, 2008, again challenging the denial of his request for the assistance of an IE, which was administratively exhausted. (Log No. SAC-C-08-01962.) Plaintiff also states that, on September 3, 3008, he provided correctional officer Lynch (not a defendant in this action) with a "notification of violation of due process in denying plaintiff . . . an investigative/ staff assistance employee," and requested that it be placed in plaintiff's central file "to notify higher personnel" of the alleged violation. (Dkt. No. 14 at 7.) Plaintiff states, that at "every appearance to committee, from Sept. 3rd 2008 until March 11, 2009, plaintiff . . . raised the issue that he was denied an IE/staff assistance employee." (Id.)
Plaintiff alleges that, on August 12, 2008, his cell was searched by defendant Parker, a CSP-SAC correctional officer, who confiscated plaintiff's personal items, including his address book. (It appears that plaintiff's address book was reviewed, but not confiscated, in 2005; this matter needs to be clarified in plaintiff's further amended pleading.) Plaintiff states that, during the month of September 2008, he and defendant Parker exchanged words, and plaintiff learned for the first time that his address book was confiscated and retained because it allegedly contained evidence of plaintiff's gang activity. Plaintiff alleges that, on September 14, 2008, he filed an administrative appeal that challenged the confiscation of his address book, but it was ignored. On October 19, 2008, plaintiff made a "second attempt" to file an administrative grievance challenging the confiscation of his address book, which was accorded a log number. (Log No. SAC-C-08-02372). However, plaintiff alleges that, on November 24, 2008, defendant Stewart "cancelled" this appeal based on an alleged statement by defendant Till, a CSP-SAC correctional officer, that plaintiff had refused to exit his cell to participate in a November 3, 2008 interview on the appeal. Plaintiff states that Till informed plaintiff that he did not make this alleged statement. Plaintiff then sought, on November 30, 2008, to lodge a grievance against Stewart, but defendant Pool allegedly screened it out because the "issue of [the] address book" had been "completed and cancelled." Plaintiff alleges that, on January 5, 2009, he sought to file another inmate grievance challenging this matter, then sought the "highest level review" on February 6, 2009, which was denied on March 18, 2009. (Dkt. No. 14 at 8.)
The complaint provides that, on December 12, 2008, plaintiff was notified by the members of the gang validation committee (defendants Fisher, Kisser and Williams), that he had been validated as an active associate of the EME prison gang. Plaintiff alleges that on the same date, December 12, 2008, he filed an inmate appeal challenging his validation and SHU placement, which was administratively exhausted. (Log No. SAC-D-09-00203).
Plaintiff seeks declaratory and injunctive relief, including a reversal of his gang validation and its expungement from plaintiff's central file, and termination of plaintiff's SHU placement. Plaintiff also seeks compensatory and punitive damages, and costs.
B. Administrative Grievances
The relevant underlying administrative grievances, attached to the complaint,
provide the following additional details in support of plaintiff's claims.
1. Log No. SAC-C-08-01962 (Denial of Investigative Employee)
In his grievance filed August 24, 2008, plaintiff sought the appointment of an IE. Plaintiff alleged therein that, on July 3, 2008, when defendant Ramos presented plaintiff with the 114-D Lock-Up Order, plaintiff requested an IE, which Ramos denied. Plaintiff also alleged that he filed a similar administrative grievance on July 4, 2008, but never received a response. Plaintiff sought an explanation of why his initial grievance was ignored, requested the appointment of an IE, and requested a stay of all proceedings until the IE had an opportunity to prepare plaintiff's defense. (Dkt. No. 14 at 80.) This grievance was denied at the First Level Review, on October 14, 2008, pursuant to an interview and decision by defendant Sims, a CSP- SAC Correctional Lieutenant, on the ground that plaintiff had waived the appointment of an IE.
The First Level denial provided (id. at 83):
Per your signature on the CDC 114-D under inmate waivers, indicates you waived the right to 72 hours preparation time. The CDC 114-D does not reflect any notes under the Investigative Employee that you requested an Investigative Employee at the time of review as you alleged in your interview of October 11, 2008. The copy that you submitted with the appeal accurately reflects the original CDC 114-D.
The grievance was granted insofar as officials provided an explanation why plaintiff had not received a response to his grievance filed July 4, 2008, viz., that "the Appeals Office never received an appeal with this date." (Id. at 86.)
Plaintiff sought Second Level Review based on his allegation that his request for an IE was written by "the officer" (presumably Ramos) on the original 114-D, not on the copy given to plaintiff and submitted by him in support of his grievance. (The subject 114-D Order, issued by defendant Ventimiglia, was signed by defendant Ramos, and approved by defendant Baughman, CSP-SAC Correctional Administrator. (Id. at 91, 100.)) Plaintiff maintained that he timely made the request, and it had been duly noted; that plaintiff was now attempting to "rectify an error;" and that perhaps an officer is "obstructing me of IE." (Id. at 81.) Plaintiff was interviewed by defendant Pool, CSP-SAC Appeals Investigator, and a Second Level Decision was rendered on December 22, 2008, by defendant Walker, CSP-SAC Warden. Plaintiff's request for appointment of an IE was denied for the reasons stated in the First Level Decision. (Id. at 90.)
The Director's Level Decision, issued March 11, 2009, on behalf of the CDCR Director, appears to be signed by "R. Manuel," on behalf of defendant Grannis, Chief of CDCR Inmate Appeals, based on a review by "Appeals Examiner J. Hutchins,*fn7 Facility Captain." (Id. at 78-79.) The Director's Level Decision denied plaintiff's grievance. In addition to the reasons stated in the previous administrative decisions, the Director's Level Decision provided in pertinent part (id. at 78):
On July 3, 2008, an administrative hearing was conducted, by a staff member at the appropriate rank, relative to [plaintiff's/ appellant's] placement. There is no indication that the appellant requested an IE or that the Classification Hearing Officer (CHO) deemed the assignment of an IE as being necessary pursuant to the provision of California Code of Regulations, Title 15, Section (CCR) 3339(b). The actions taken by the CHO conform to the requirements of CCR 3337 and 3338. It is noted that the appellant did not request any witnesses when the hearing took place. It is evident that the appellant's procedural safeguards have been observed in this matter.
2. Log No. SAC-S-08-02372 (Confiscation of Plaintiff's Address Book)
The complaint alleges that plaintiff sought several times to pursue and exhaust an administrative grievance challenging the confiscation of his address book; however, the claim was never exhausted. Pursuant to these efforts, plaintiff sought to challenge defendant Parker's August 12, 2008 search of plaintiff's cell, the confiscation and retention of plaintiff's address book, and the alleged misconduct of defendant Stewart when he cancelled plaintiff's grievance on the allegedly false ground that plaintiff refused to participate in the appeals process. (Dkt. No. 14 at 58-76.) Plaintiff also challenged the role of defendant Pool, Appeals Coordinator, in screening out these matters. (Id. at 61-65.) Pursuant to his complaint, plaintiff also challenges the conduct of Grannis, CDCR Inmate Appeals Chief, in rejecting these matters at the "highest level." (Id. at 9, 16, 59.)
3. Log No. SAC-D-09-00203 (Plaintiff's Gang Validation and SHU Placement) On December 22, 2008, plaintiff submitted an administrative grievance directly challenging his gang validation and SHU term. (Dkt. No. 14 at 24-27.) Plaintiff challenged the validity of the source items, and the failure of prison officials to earlier inform plaintiff of the information contained therein. The appeal was initially screened out as untimely. (Id. at 48.) Plaintiff responded that the appeal was timely (id. at 47), and it was subsequently processed.
First Level Review was bypassed. (Id. at 24-25.) Pursuant to the Second Level Review, defendant Ventimiglia interviewed plaintiff, and noted that plaintiff failed to "provide any additional information," and thus that "[a]ll submitted documentation and supporting documents have been considered." (Id. at 28.) The Second Level Decision, issued March 6, 2009, by defendant Walker, CSP-SAC Warden, granted plaintiff's request that any erroneous information be removed from his central file, but denied plaintiff's grievance based on a rejection of plaintiff's challenges to the source items underlying his validation (Id. at 28-35; see also id. at 36-46.)
A Director's Level Decision was issued on June 8, 2009, authored by an unidentified official (the signature appears to be that of defendant Pool), pursuant to a review by Appeals Examiner S. Hemenway, and on behalf of defendant Grannis, Inmate Appeals Chief. (Id. at 22-23, 55-56.) The decision found, in pertinent part, that plaintiff "has not provided sufficient documentation, information or evidence to warrant any modification of the decision reached at the SLR [Second Level Review]." (Id. at 22.) The decision also noted that plaintiff "refused to exit his cell to participate in the interview process" (id. at 23), an apparent reference to the following statement of defendant Stewart, on July 3, 2008, in plaintiff's initial gang validation package (id. at 38):
On July 3, 2008, Sergeant J. Stewart attempted to interview REAL regarding the validation source items. REAL refused to exit the cell and participate in the interview process. He did comment through the cell door that he disagreed with the validation and he submitted (1) one handwritten page of information disputing the items documents during the investigation.
On July 19, 2009, plaintiff submitted another grievance, contesting defendant Ventimiglia's role in reviewing grievance Log No. SAC-D-09-0203, because Ventimiglia had participated in the underlying validation investigation. (Id. at 52.) On July 28, 2009, defendant Pool, as CSP-SAC Appeals Coordinator, screened out the grievance as duplicative of Log No. SAC-D-09-00203, then exhausted. (Id. at 51.) Plaintiff sought Director's Level Review (id. at 53), which was denied on September 1, 2009, on the ground that plaintiff had improperly bypassed the Appeals Coordinator (id. at 51, 53).
Defendants contend that each of plaintiff's claims should be dismissed
pursuant to Federal Rule of Civil Procedure 12(b)(6),*fn8
for failure to state a claim.
A. Legal Standards Under Federal Rule of Civil Procedure 12(b)(6)
A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6), challenges the sufficiency of the pleadings set forth in the complaint. Vega v. JPMorgan ChaseBank, N.A., 654 F. Supp. 2d 1104, 1109 (E.D. Cal. 2009). Under the "notice pleading" standard of the Federal Rules of Civil Procedure, a plaintiff's complaint must provide a "short and plain statement" of plaintiff's claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). In order to survive dismissal for failure to state a claim, a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554 (2007). "A complaint may survive a motion to dismiss if, taking all well-pleaded factual allegations as true, it contains 'enough facts to state a claim to relief that is plausible on its face.'" Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)). "'A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (quoting Iqbal, 129 S. Ct. at 1949). The court accepts "all facts alleged as true and construes them in the light most favorable to the plaintiff." County of Santa Clara v. Astra USA, Inc., 588 F.3d 1237, 1241 n.1 (9th Cir. 2009). The court is "not, however, required to accept as true conclusory allegations that are contradicted by documents referred to in the complaint, and [the court does] not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Paulsen, 559 F.3d at 1071 (citations and quotation marks omitted).
In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the court "may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks omitted). However, under the "incorporation by reference" doctrine, a court may also review documents "whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiff's] pleading." Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (citation omitted and modification in original). The incorporation by reference doctrine also applies "to situations in which the plaintiff's claim depends on the contents of a document, the defendant attaches the document to its motion to dismiss, and the parties do not dispute the authenticity of the document, even though the plaintiff does not explicitly allege the contents of that document in the complaint." Id.
B. Plaintiff's Due Process Claims
Plaintiff makes eleven due process claims challenging his validation and segregation. (See Dkt. No. 14; Second, Sixth, Ninth, Eleventh, Thirteenth, Fifteenth, Seventeenth, Twentieth, Twenty-Second, ...