United States District Court, S.D. California
ANDREW A. CEJAS, Plaintiff,
DANIEL PARAMO, et al., Defendants.
WILLIAM Q. HAYES UNITED STATES DISTRICT JUDGE.
matter before the Court is the Report and Recommendation (ECF
No. 29) filed by the Magistrate Judge on the Defendants'
Motion to Dismiss (ECF No. 17).
August 15, 2014, Plaintiff Andrew A. Cejas
(“Plaintiff”) initiated this action by filing the
Complaint. (ECF No. 1). On June 27, 2016, Plaintiff filed a
motion to proceed in forma pauperis. (ECF No. 4). On July 20,
2016, the Court issued an order granting Plaintiff's
motion to proceed in forma pauperis and directing the U.S.
Marshal to effect service and summons of the complaint. (ECF
October 4, 2016, Defendants D. Jaime, D. Paramo, S. Rutledge,
and D. Strayhorn (“Defendants”) filed a motion to
dismiss. (ECF No. 17). Defendants moved to dismiss
Plaintiff's First and Fourteenth Amendment claims against
Defendant Paramo, and the retaliation claim against
Defendants Jaime and Strayhorn. Id. On November 25,
2016, Plaintiff filed a response in opposition to
Defendants' motion to dismiss. (ECF No. 24).
March 28, 2017, the Magistrate Judge filed the Report and
Recommendation. (ECF No. 29). The Magistrate Judge concluded
that Plaintiff has not alleged facts sufficient to state a
claim for relief that is plausible on its face with respect
to Plaintiff's First and Fourteenth Amendment claims
against Defendant Paramo and his retaliation claim against
Defendant Jaime. Id. at 8. The Magistrate Judge
further found that Plaintiff has not alleged sufficient facts
to state a claim for violation of his First Amendment right
of access to the courts against Defendant Paramo.
Id. at 19. The Magistrate Judge recommended that
Defendant's motion to dismiss be granted as to
Plaintiff's retaliation claim against Defendant Jaime and
Plaintiff's First and Fourteenth Amendment claims against
Defendant Paramo. Id. at 22.
16, 2017, the Court issued an order granting Plaintiff's
motion for extension of time, and ordered that any objection
by Plaintiff must be filed no later than August 14, 2017, and
that any reply by Defendants must be filed no later than
August 28, 2017. (ECF No. 32). On August 14, 2017, Plaintiff
filed objections to the Report and Recommendation. (ECF No.
37). On August 28, 2017, Defendants filed a reply to
Plaintiff's objections. (ECF No. 38).
Standard of Review
duties of the district court in connection with a report and
recommendation of a magistrate judge are set forth in Federal
Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b).
The district judge must “make a de novo determination
of those portions of the report or specified proposed
findings or recommendations to which objection is made[,
]” and “may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b). The
district court need not review de novo those portions of a
Report and Recommendation to which neither party objects.
See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th
Cir. 2005); United States v. Reyna-Tapia, 328 F.3d
1114, 1121 (9th Cir. 2003) (en banc) (“Neither the
Constitution nor the [Federal Magistrates Act, 28 U.S.C.
§ 636] requires a district judge to review, de novo,
findings and recommendations that the parties themselves
accept as correct.”).
Plaintiff's First Objection: Retaliation Claim against
contends that the Magistrate Judge erred in recommending the
dismissal of his retaliation claim against Defendant Jaime
because Plaintiff adequately pled a causal connection as to
his retaliation claim between Defendant Jaime's cell
search and Plaintiff's grievance against Defendant
Rutledge. (ECF No. 37 at 4). Plaintiff contends that he
adequately pled a causal connection because Defendant
Jaime's cell search sheet contained Plaintiff's hat,
which was taken away by Defendant Rutledge prior to the cell
search. Id. Plaintiff contends that the hat was not
inside the cell during Defendant Jaime's search, but the
hat was included on the cell search sheet. Id.
Plaintiff contends that this serves as “[e]vidence of
retaliatory motive by Defendant Jaime.” Id.
Magistrate Judge found that Plaintiff failed to allege an
adequate connection between the grievance and the subsequent
cell search because Defendant Jaime was a third party to and
had no knowledge of any dispute between Plaintiff and
Defendant Rutledge. Plaintiff alleges that on the day of the
cell search, while waiting to access the law library, he
approached Defendant Rutledge to ask how Rutledge would
respond to Plaintiff's earlier complaint. (ECF No. 1 at
14). Plaintiff alleges that Defendant Rutledge ordered
Officer Carter to confiscate a hat that Plaintiff was
wearing. Id. Plaintiff alleges that Defendant
Rutledge and Officer Carter then walked together to the
Program office. Id. Plaintiff alleges that later the
same day, Defendant Rutledge ordered Defendant Jaime to
search Plaintiff's cell. Id. In the cell search
sheet completed by Defendant Jaime attached to the Complaint,
Defendant Jaime lists Plaintiff's baseball hat as an item
that was confiscated. Id. at 83. Plaintiff asserts
that the baseball hat was not in his cell during the search,
but it still appears on Defendant Jaime's cell search
reviewing Plaintiff's Complaint and objection, the Court
concludes that the Magistrate Judge correctly found that
Plaintiff has not sufficiently pled the third element of his
retaliation claim. Plaintiff's allegations are not
sufficient to establish that Defendant Jaime was aware of
Plaintiff's grievance against Defendant Rutledge at the
time of the cell search. Plaintiff's allegation that
Defendant Rutledge ordered Defendant Jaime to search
Plaintiff's cell, alone, is insufficient to establish
that Defendant Jaime had a retaliatory motive in conducting
the cell search. See Wood v. Yordy, 753 F.3d 899,
905 (9th Cir. 2014) (“We have ...