The opinion of the court was delivered by: A Marsha J. Pechman United States District Judge
ORDER RE: MOTION TO DISMISS SECOND AMENDED COMPLAINT
The above-entitled Court, having received and reviewed
1. Defendants' Motion to Dismiss (Dkt. No. 78)
2. Plaintiff's Opposition to Defendants' Third Motion to Dismiss (Dkt. No. 80)
3. Defendants' Reply to Plaintiff's Opposition to Defendants' Motion to Dismiss (Dkt. No. 82)
and all accompanying exhibits and declarations, makes the following ruling:
IT IS ORDERED that Defendants' motion will be PARTIALLY GRANTED and PARTIALLY DENIED, as delineated below:
1. Count 1: DENIED as to Defendants Bunnell, Campbell, Fox, Griffin, Gutierrez, Huerta-Garcia, Lewis, Montanez, Rodriguez, Subia, and Tilton; GRANTED as to the remaining Defendants.
2. Count 2: DENIED as to Defendants Bunnell, Campbell, Fox, Griffin, Gutierrez, Huerta-Garcia, Lewis, Montanez, Rodriguez, Subia, and Tilton; GRANTED as to the remaining Defendants.
3. Count 3: GRANTED in its entirety; this count is DISMISSED.
4. Count 4: DENIED as to Defendants Bunnell, Campbell, Montanez, Subia, and Tilton; GRANTED as to the remaining Defendants.
5. Count 5: DENIED as to Defendants Bunnell, Campbell, Montanez, Subia, and Tilton; GRANTED as to the remaining Defendants.
6. Count 6: DENIED as to Defendants Griffin, Montanez, Mwangi, Rodriguez and Subia; GRANTED as to the remaining Defendants.
7. Count 7: DENIED as to Defendants Griffin, Montanez, Mwangi, Rodriguez and Subia; GRANTED as to the remaining Defendants.
8. Count 8: DENIED as to Defendant Grannis; GRANTED as to the remaining Defendants.
9. Count 9: DENIED as to Defendant Grannis; GRANTED as to the remaining Defendants.
10. Count 10: DENIED in its entirety.
11. Count 11: DENIED as to Defendants Campbell, Fox, Grannis, Griffin, Gutierrez, Huerta-Garcia, Montanez, Reaves, Reyes, Rodriguez, Subia, and Tilton; GRANTED as to the remaining Defendants. IT IS FURTHER ORDERED that leave to amend is DENIED.
IT IS FURTHER ORDERED that Defendants must file their answer to Plaintiff's Second Amended Complaint within 14 days of the filing of this order; upon Defendants' filing of their answer, a Discovery and Scheduling order will issue.
Plaintiff has filed an original and a First Amended Complaint (FAC) pro se -- both have been subject to motions to dismiss and have survived but with orders to amend. Just prior to the ruling on the FAC, this Court appointed counsel (Mark Walters and Dario Machleidt) to assist Plaintiff.
The Court also ordered the U.S. Marshal's Office to serve copies of Plaintiff's complaint on the named defendants. To date, 15 defendants have been served and appeared. Defendants Carrillo and Fierson have not been served. The Process Receipt form filed for the unserved defendants indicates three attempts to serve them and reports that they are no longer employed by California Department of Corrections and Rehabilitation (CDCR). CDCR has no forwarding address for them. Dkt. No. 14.
Plaintiff has eleven causes of action and alleges federal and state claims. The claims arise from a series of allegations summarized below (all citations are to the Second Amended Complaint [SAC]; Dkt. No. 77). Plaintiff alleges that:
* He was placed in Administrative Segregation ("Ad-Seg" a/k/a solitary confinement) -- allegedly for threatening a prison nurse, but actually in retaliation for his vigorous litigation against the prison system and for his legal assistance to other inmates. ¶¶ 35-59.
* Although the Institution Classification Committee (ICC) concluded that his Ad-Seg placement was in error, that determination was overruled by Defendant Huerta-Garcia and he was retained in Ad-Seg for approximately seven weeks, again in retaliation for his litigation efforts. ¶¶ 60-73.
* While in Ad-Seg, he was denied the use of his cane (which he required for mobility and exercise) and his Bible. ¶¶ 40-41.
* While in Ad-Seg, he was denied the use of an extra mattress and pillow, which he required due to pre-existing spinal injuries. ¶¶ 103-110.
* Following his assignment to Ad-Seg, his seizure, heart, pain, and stomach medications were confiscated; no replacement medications were issued for several days. A month later, his medications were confiscated again. ¶¶ 97-102.
* Between March and June 2006, Plaintiff's property (including legal materials for cases against CDCR and Mule Creek State Prison [MCSP]) was destroyed by Defendants in retaliation for his litigation activity. There were additional threats that, if Plaintiff did not consent to the destruction of his property, his legal materials would be sent to certain Defendants to read. ¶¶ 112-119.
* Following his release from Ad-Seg, Plaintiff was classified in an "A2B prisoner classification privilege group." The A2B classification does not exist in the California Code of Regulations; it is an "underground policy" created by Defendants Subia, Tilton, Campbell, Bunnell and others (unnamed). On the basis of that classification, Plaintiff was denied access to showers, exercise, the yard, the dayroom, religious functions (including prayer group and Bible study), the phone and the law library on weekends, holidays and evenings. His 2007 Administrative Group Appeal and a further individual challenge to the A2B classification were denied. Additionally, Plaintiff personally informed Defendant Tilton of the unconstitutional nature of the A2B policy. Plaintiff remained in A2B classification for approximately 4 years. ¶¶ 121-149.
This order will first address the global issues that affect all of Plaintiff's claims, then proceed to an analysis of the motion to dismiss the individual claims.
Of the 17 named defendants, two remain unserved -- Carrillo and Fierson. Plaintiff maintains that Carrillo is a current employee of the CDCR whom the United States Marshal should have served with the original complaint. Mr. Hightower also claims he is not responsible for Defendant Carrillo not yet being served, and, "accordingly, Defendant Carrillo should be deemed present in this case." SAC, ¶ 16.
Plaintiff reiterates his position concerning Carrillo in his responsive pleadings (Response, p. 11 fn. 6) as part of his argument concerning his 8th Amendment claims. He cites no authority for the position. The Court is not bound by the conclusory allegations of his complaint concerning Carrillo's employment status: the "Process Receipt and Return" from the Marshals Service (filed in the court record; see Dkt. No. 14) indicates that three attempts were made to serve Carrillo (and Fierson) and that the CDC locator no longer had them in the system as of October 23, 2009.
As neither Carrillo nor Fierson has appeared and moved for dismissal, this Court has no jurisdiction over them and this order will have no effect as to them. By the same token, however, Plaintiff cannot use his allegation that Defendant Carrillo forced him to walk a mile to Ad-Seg without his cane (¶ 75) to support his 8th Amendment claims (unless he had alleged -- as he does not -- that other ...