United States District Court, S.D. California
REPORT AND RECOMMENDATION GRANTING IN PART AND
DENYING IN PART MOTION TO DISMISS COMPLAINT [ECF NO.
RUBEN B BROOKS UNITED STATES MAGISTRATE JUDGE.
Marquise Deangelo Loftis, a state prisoner proceeding pro se
and in forma pauperis, filed a Complaint pursuant to 42
U.S.C. § 1983 on August 17, 2016 [ECF Nos. 1, 3]. Loftis
alleges that Defendant Sergeant Correctional Officer S.M.
Vasquez violated his rights under the First, Eighth, and
Fourteenth Amendments by placing him in administrative
segregation as retaliation for Plaintiff serving Vasquez with
a grievance. (Compl. 3, ECF No. 1.) On February 13, 2017,
Defendant filed a “Motion to Dismiss Plaintiff's
Complaint” (the “Motion to Dismiss”) with a
Memorandum of Points and Authorities, a declaration of Janine
K. Jeffery, and an exhibit [ECF No. 6]. Loftis submitted an
Opposition to the Motion to Dismiss with an accompanying
declaration, which was filed nunc pro tunc to March 22, 2017
[ECF No. 9]. On April 3, 2017, Vasquez filed a Reply [ECF No.
Court has reviewed the Complaint and exhibits, the Motion to
Dismiss, the Opposition, and the Reply. For the reasons
discussed below, Defendant's Motion to Dismiss [ECF No.
6] should be GRANTED in part and DENIED in
events that form the basis of Plaintiff's Complaint began
on July 11, 2015, while Loftis was incarcerated at Richard J.
Donovan Correctional Facility (“Donovan”).
(Compl. 1-2, ECF No. 1.) On that date, Plaintiff returned to his
cell from the exercise yard to find that items were missing.
(Id. at 8-9.) When Loftis asked Vasquez for a cell
search receipt, the Defendant allegedly responded,
“‘I don't have to give you
anything.'” (Id. at 9.) Plaintiff left.
(Id.) On July 15, 2015, Loftis gave Vasquez a CDCR
Form 22, “requesting issuance of a cell search receipt
identifying the disposition of the bottle of vitamins
defendant Vasquez removed from the cell Plaintiff was
assigned.” (Id.) Loftis left after serving
this document on Defendant, but Vasquez called him back,
stating, “‘You [forgot] to sign the form, and you
likely have safety concerns, didn't you have a fight
while I was gone?'” (Id. (alteration in
original) (footnote omitted).) Plaintiff signed the form.
(Id.) Loftis states that Defendant then
“‘rammed' Plaintiff's identification card
back at Plaintiff with deliberate force.”
(Id.) Loftis asked whether Vasquez was trying to
hurt him, took his identification, and left. (Id.)
then went to the law library, where he was approached by two
correctional officers who directed him to be placed in
handcuffs. (Id.) Loftis contends that he complied
with these orders and was handcuffed and taken to a holding
cage. (Id.) At the holding cage, “Plaintiff
was informed that defendant Vasquez was ordering Plaintiff
placed in administrative segregation on the basis that
Plaintiff asserted defendant Vasquez intended to hurt
Plaintiff when . . . defendant Vasquez, deliberately with
physical force thrust the identification into Plaintiff's
was brought to the office of Lieutenant C. Frost, who is not
a party to this litigation. (Id. at
There, he was told to make a videotaped statement about what
happened with Defendant. (Id.) Plaintiff indicates
that in his video statement, he said that Vasquez had been
harassing him following an incident that occurred with one of
Loftis's prior cellmates. (Id.) He also stated
that on July 11, 2015, he returned to find his property
scattered around his cell. (Id.) He learned that
Defendant searched his cell and took a bottle of vitamins,
which was later returned to him. (Id.) In his
videotaped statement, Plaintiff included that he had not
received a cell search receipt and that he asked Vasquez for
one on July 15, 2015, by serving Defendant with a CDCR Form
22. (Id.) Loftis further disclosed his subsequent
conversation and interaction with Vasquez, as well as what
happened with the two correctional officers who placed him in
handcuffs. (Id. at 10-11.)
on his statement to Defendant, Frost told Plaintiff that he
would be placed in administrative segregation. (Id.
at 11.) After being placed there, Facility-A-Captain E. Garza
conducted an administrative segregation review.
(Id.) Loftis explained to Garza that Defendant
Vasquez had been conducting cell searches to harass Plaintiff
after a conflict between Defendant and Loftis's former
cellmate. (Id.) Plaintiff gave Garza an additional
reason why he was improperly placed in administrative
Vasquez utilized placing Plaintiff in ad/seg as a means to
silence Plaintiff, and make Plaintiff remove the complaint
CDCR Form 22 that charged Vasquez of abusing his authority by
using cell searches of Plaintiff's assigned cell as a
tool for harassment due to Plaintiff's ex-cellmate having
filed complaints against Vasquez, which Plaintiff
(Id.) According to Loftis, Garza found no support
for Defendant placing Plaintiff in administrative segregation
and ordered that he be immediately released into the general
prison population. (Id.)
contends that Vasquez's placing him in administrative
segregation had no legitimate penological objective and was
designed to chill Plaintiff from exercising his rights.
(Id. at 12.) He asserts that Frost allowed Loftis to
be placed in administrative segregation even though she knew
that Plaintiff had not violated any regulation.
(Id.) Loftis states that Defendant and Frost knew or
should have known that their actions violated Loftis's
constitutional rights. (Id. at 12-13.)
Standards Applicable to Pro Se Litigants
plaintiff appears in propria persona in a civil rights case,
the court must construe the pleadings liberally and afford
the plaintiff any benefit of the doubt. Karim-Panahi v.
Los Angeles Police Dep't, 839 F.2d 621, 623 (9th
Cir. 1988). The rule of liberal construction is
“particularly important in civil rights cases.”
Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir.
1992) (citation omitted). In giving liberal interpretation to
a pro se civil rights complaint, courts “may not supply
essential elements of the claim that were not initially
pled.” Ivey v. Bd. of Regents of the Univ. of
Alaska, 673 F.2d 266, 268 (9th Cir. 1982). “Vague
and conclusory allegations of official participation in civil
rights violations are not sufficient to withstand a motion to
dismiss.” Id.; see also Jones v. Cmty.
Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984)
(finding conclusory allegations unsupported by facts
insufficient to state a claim under § 1983). “The
plaintiff must allege with at least some degree of
particularity overt acts which defendants engaged in that
support the plaintiff's claim.” Jones, 733
F.2d at 649 (citation omitted) (internal quotation marks
the court must give a pro se litigant leave to amend his
complaint “‘unless it determines that the
pleading could not possibly be cured by the allegation of
other facts.'” Lopez v. Smith, 203 F.3d
1122, 1127 (9th Cir. 2000) (en banc) (quoting Doe v.
United States, 58 F.3d 494, 497 (9th Cir. 1995)). Thus,
before a pro se civil rights complaint may be dismissed, the
court is required to provide the plaintiff with a statement
explaining the complaint's deficiencies.
Karim-Panahi, 839 F.2d at 623-24 (citation omitted).
But where amendment of a pro se litigant's complaint
would be futile, denial of leave to amend is appropriate.
See James v. Giles, 221 F.3d 1074, 1077 (9th Cir.
Motions to Dismiss for Failure to State a
motion to dismiss for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6) tests the legal
sufficiency of the claims in the complaint. See Davis v.
Monroe Cty. Bd. of Educ., 526 U.S. 629, 633 (1999). A
complaint must be dismissed if it does not contain
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
court accepts as true all material allegations in the
complaint, as well as reasonable inferences to be drawn from
them, and construes the complaint in the light most favorable
to the plaintiff. Cholla Ready Mix v. Civish, 382
F.3d 969, 973 (9th Cir. 2004) (citing Karam v. City of
Burbank, 352 F.3d 1188, 1192 (9th Cir. 2003)); Parks
Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir.
1995); NL Indus. v. Kaplan, 792 F.2d 896, 898 (9th
Cir. 1986) (citation omitted).
court does not look at whether the “plaintiff will
ultimately prevail but whether the claimant is entitled to
offer evidence to support the claims.” Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974), overruled on other
grounds by Davis v. Scherer, 468 U.S. 183 (1984);
see Bell Atlantic Corp., 550 U.S. at 563 n.8. A
dismissal under Rule 12(b)(6) is generally proper only where
there “is no cognizable legal theory or an absence of
sufficient facts alleged to support a cognizable legal
theory.” Navarro v. Block, 250 F.3d 729, 732
(9th Cir. 2001) (citing Balistreri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir. 1988)).
court need not accept conclusory allegations in the complaint
as true; rather, it must “examine whether [they] follow
from the description of facts as alleged by the
plaintiff.” Holden v. Hagopian, 978 F.2d 1115,
1121 (9th Cir. 1992) (citation omitted); see also Cholla
Ready Mix, 382 F.3d at 973 (stating that on a Rule
12(b)(6) motion, a court “‘is not required to
accept legal conclusions cast in the form of factual
allegations if those conclusions cannot reasonably be drawn
from the facts alleged'” (quoting Clegg v. Cult
Awareness Network, 18 F.3d 752, 754-55 (9th Cir.
1994))). “Nor is the court required to accept as true
allegations that are merely conclusory, unwarranted
deductions of fact, or unreasonable inferences.”
Sprewell v. Golden State Warriors, 266 F.3d 979, 988
(9th Cir. 2001) (citation omitted).
addition, when resolving a motion to dismiss for failure to
state a claim, courts may not generally consider materials
outside of the pleadings. Schneider v. California
Dep't of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir.
1998); Jacobellis v. State Farm Fire & Cas. Co.,
120 F.3d 171, 172 (9th Cir. 1997); Allarcom Pay
Television v. Gen. Instrument Corp., 69 F.3d 381, 385
(9th Cir. 1995). “The focus of any Rule 12(b)(6)
dismissal . . . is the complaint.” Schneider,
151 F.3d at 1197 n.1. This precludes consideration of
“new” allegations that may be raised in a
plaintiff's opposition to a motion to dismiss brought
pursuant to Rule 12(b)(6). Id. (citing Harrell
v. United States, 13 F.3d 232, 236 (7th Cir. 1993)).
“When a plaintiff has attached various exhibits to ...