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Reed v. D. Paramo

United States District Court, S.D. California

October 15, 2019

MYCHAL ANDRA REED, CDCR #AE-9821, Plaintiff,



         Plaintiff Mychal Andra Reed, currently incarcerated at the Richard J. Donovan Correctional Facility (“RJD”), is proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Currently before the Court are the Motions to Dismiss Plaintiff's Second Amended Complaint (“SAC”) pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by Defendants C. Crespo, J. Luna, D. Paramo, and E. Zendejas (ECF No. 65) and Defendants N. Marientes, N. Scharr, P. Covello, and A. Garcia (ECF No. 78). Plaintiff has filed an Opposition (ECF No. 69) and two additional “responses” (ECF Nos. 83, 84) to the Motions. Defendants have not filed Replies.

         The matters were taken under submission without oral argument pursuant to Civil Local Rule 7.1(d)(1). See ECF Nos. 66, 82. Having carefully considered Defendants' Motions, Plaintiff's SAC and his Oppositions, and the law, the Court GRANTS IN PART AND DENIES IN PART Defendants' Motions as follows.


         On September 5, 2017, Plaintiff was “written up” by Defendant Correctional Officer Zendejas for “‘allegedly' not obeying an order to ‘get down.'” SAC at 4. Plaintiff is “deaf/hearing impaired.” Id. He “immediately appealed” the rules violation report (“RVR”) issued by Zendejas. Id. The RVR, however, was “affirmed” by Zendejas' superior, Defendant Lieutenant Luna. Plaintiff claims it was not humanly “possible for him to have heard the ‘alleged' order.” Id. “After several letters” to Zendejas' “superiors, ” Plaintiff alleges that “the only thing that has occurred is ‘retaliation'” by Zendejas and “more ‘fabricated' RVR[]s being generated.” Id. Plaintiff claims Zendejas “coerced” Correctional Officer Ochoa, who is not named as a Defendant, to “trash Plaintiff's cell to incite him to anger” on November 9, 2017. Id.

         Plaintiff alleges that, during his September 23, 2017 disciplinary hearing regarding the RVR issued by Zendejas, Luna “refused to allow Plaintiff to present witnesses on his behalf.” Id. at 5. As a result, Plaintiff was “found guilty” and the “RVR's untrue statements were permanently placed on his prison record.” Id.

         On January 15, 2018, Plaintiff was “handed [an] RVR disciplinary write up that “falsely” alleged that he had “disobeyed an order” issued by Zendejas. Id. at 7. Plaintiff claims he has “absolutely no idea of the ‘alleged' encounter” which purportedly occurred on January 12, 2017. Id. On this date, Plaintiff alleges it was raining and he was not wearing his hearing aid because “it will short out if it gets wet.” Id. Plaintiff claims he “did not have any encounter” with Zendejas on January 12, 2017. Id.

         Plaintiff wrote Defendant Warden Paramo “several letters, ” along with “several other superiors” at RJD “concerning their subordinates (particularly [correctional officer (“c/o”)] Zendejas)” purportedly “generating phony (‘fabricated') disciplinary write ups, ” “violations of CDCR's” code of conduct and ethics, and “persistent harassment and retaliation” by Zendejas. Id. at 8.

         Plaintiff alleges it is “common protocol” for CDCR officials to “retaliate against inmates who complain against ‘crooked' c/o[]s, by marring inmates c-files (prison records) with ‘fabricated' discipline documents.” Id. at 9. Plaintiff further alleges that “fabricated” documents are placed in prisoners' “C-file regardless of [whether] his or her due process rights were violated” during “mock RVR hearings.” 10. Plaintiff claims that CDCR officials “keep ‘needling' inmates so they will eventually ‘snap', so prison officials['] abusive and ‘sadistic' conduct can then be justified.” Id. at 10. Plaintiff alleges that prison officials are “causing him mental and emotional damage which will eventually lead to physical ailments.” Id.

         Plaintiff also claims that prison officials are “intercepting” his legal mail. Id. at 11. He claims that his “efforts to file this complaint have been hampered (hindered)” by RJD correctional officers who refused to “e-file his complaint” by “falsely” claiming they had no “knowledge” of the Southern District of California's “general order” requiring all complaints to be electronically filed. Id.

         Plaintiff claims an unspecified “defendant was made aware” of his attempts to electronically file a “complaint to this court” by placing the entire yard on “lockdown.” Id. Plaintiff alleges that RJD prison officials claim that the lockdown was due to a riot was “contrived (erroneous) reasoning.” Id. at 12. Plaintiff claims “there has been no riots or threats of any riots.” Id. Plaintiff “believes retaliation by defendant is also due to him contacting the ‘Office of Internal Affairs' regarding this ‘pending civil rights complaint in another court (U.S.[D.C.] Case No. cv-12-10727-VAP-JCG).'” Id. Paramo let Plaintiff “know he was aware of [Plaintiff's contact with the Office of Internal Affairs] via correspondence letter.” Id.

         Plaintiff had a disciplinary hearing on November 16, 2018, presided over by Defendant Sergeant Scharr, for an “alleged” fight with another inmate. Id. at 13. Plaintiff was found guilty and “given 30 days no dayroom, ” while the other inmate was given “only 15 days no dayroom.” Id. Plaintiff “believes [the] hearing officer's actions were ‘overtly' prejudice toward him” because the other inmate is “white and [Plaintiff] is black.” Id. Plaintiff further “believes [Scharr] has been retaliating against him through subordinates via ‘harassment'” by “using each and every opportunity to place [Plaintiff] in an ‘uncompromising' position.” Id.

         On January 6, 2019, Plaintiff alleges Defendant Correctional Officer Garcia “trashed” Plaintiff's cell and subsequently issued a “fraudulent” RVR against Plaintiff. Id. Plaintiff was “found guilty in RVR hearing” and lost phone privileges for fifteen days based on Garcia's “false” statements at the hearing. Id. Plaintiff claims his due process rights were violated because the hearing officer, Defendant Sergeant Marientes, refused to speak to a witness requested by Plaintiff. See id.

         Plaintiff was transferred to Wasco State Prison (“WSP”) on April 3, 2019, for his “eventual transfer to Valley State Prison (VSP) to attend a scheduled 4/8/19 conference at Eastern District Court in Fresno.” Id. at 14. Plaintiff “eventually stayed at WSP for 4 days in ‘solitary' confinement quarters akin to the ‘hole.'” Id. While housed in confinement, Plaintiff was “made to stay in his cell 24 hours a day, no bedding (bed mat, sheets or quilt) was provided, no shower, no TTY-phone access.” Id.

         Plaintiff was “transferred back” to RJD on April 6, 2019, “without ever being transferred to VSP or court.” Id. Plaintiff discovered that RJD officials were “alerted by the deputy attorney general” on April 2, 2019, that his “case was now closed” and there was no need for him to appear at the April 8, 2019 conference in the Eastern District of California. Id. Plaintiff alleges that Defendant Warden Covello “used [this] situation to ‘retaliate' against Plaintiff for utilizing his First Amendment rights.” Id.

         Plaintiff initiated this action on February 9, 2018, seeking leave to file by mail his civil rights complaint. See generally ECF No. 1. Plaintiff's First Amended Complaint (“FAC”) against Defendants Paramo, Luna, Zendejas, and Crespo was filed on February 26, 2018, alleging five claims for violation of his First and Eighth Amendment rights. See generally ECF No. 3.

         Those Defendants moved to dismiss Plaintiff's claims against them in his FAC on July 30, 2018. See generally ECF No. 15. On January 31, 2019, the Court granted in part and denied in part their motion. See generally ECF No. 30. Specifically, the Court dismissed Plaintiff's Eighth Amendment claims against Paramo, Luna, Zendejas, and Crespo; dismissed Plaintiff's First Amendment claims against Crespo and Luna; and dismissed Plaintiff's First Amendment claims against Zendejas as they related to the September 5, 2017 and November 9, 2017 incidents. See Id. at 21. The Court granted Plaintiff leave to file an amended complaint, explicitly warning him that “[a]ny claims not re-alleged in the amended complaint will be considered waived.” Id. at 21-22.

         Plaintiff filed the operative SAC on May 9, 2019, dropping Crespo and adding Defendants Covello, Garcia, Marientes, and Scharr. See generally ECF No. 60. Plaintiff's SAC alleges eight “counts” for violation of Plaintiff's First, Fifth, Eighth, and Fourteenth Amendment constitutional rights. See Id. at 4-15. Plaintiff seeks injunctive relief, attorney fees, and compensatory and punitive damages. See Id. at 17.


         Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss on the grounds that a complaint “fail[s] to state a claim upon which relief can be granted.” A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001); Bryan v. City of Carlsbad, 207 F.Supp.3d 1107, 1114 (S.D. Cal. Mar. 20, 2018).

         Because Rule 12(b)(6) focuses on the “sufficiency” of a claim rather than the claim's substantive merits, “a court may [ordinarily] look only at the face of the complaint to decide a motion to dismiss, ” Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002), including the exhibits attached to it. See Fed. R. Civ. P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”); Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citing Amfac Mortg. Corp. v. Ariz. Mall of Tempe, Inc., 583 F.2d 426 (9th Cir. 1978) (holding that “material which is properly submitted as part of the complaint may be considered” in ruling on a Rule 12(b)(6) motion to dismiss). Exhibits that contradict the claims in a complaint, however, may fatally undermine the complaint's allegations. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (a plaintiff can “plead himself out of a claim by including . . . details contrary to his claims”) (citing Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295-96 (9th Cir. 1998) (“[Courts] are not required to accept as true conclusory allegations [that] are contradicted by documents referred to in the complaint.”))); see also Nat'l Assoc. for Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043, 1049 (9th Cir. 2000) (holding that courts “may consider facts contained in documents attached to the complaint” in determining whether the complaint states a claim for relief).

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); Villa v. Maricopa Cnty., 865 F.3d 1224, 1228-29 (9th Cir. 2017). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Plausibility requires pleading facts, as opposed to conclusory allegations or the “formulaic recitation of the elements of a cause of action, ” Twombly, 550 U.S. at 555, which rise above the mere conceivability or possibility of unlawful conduct. Iqbal, 556 U.S. at 678-79; Somers v. Apple, Inc., 729 F.3d 953, 959-60 (9th Cir. 2013). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. While a pleading “does not require ‘detailed factual allegations, '” Rule 8 nevertheless “demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

         Therefore, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. “Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Iqbal, 556 U.S. at 678 (citation and quotes omitted); accord Lacey v. Maricopa Cnty., 693 F.3d 896, 911 (9th Cir. 2012) (en banc). “In sum, for a complaint to survive a motion to dismiss, the non-conclusory ‘factual content,' and reasonable inferences [drawn] from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting Iqbal, 556 U.S. at 678).


         I. Claims Against Crespo

         Defendant Crespo seeks to dismiss Plaintiff's claims against her because Plaintiff failed to rename her as a Defendant in his SAC. See ECF No. 65-1 at 5.

         Plaintiff initially named Crespo in his FAC, filed February 26, 2018, see generally ECF No. 3, which Defendants moved to dismiss. See generally ECF No. 15. On January 31, 2019, the Court granted in part and denied in part that motion. See ECF No. 30 at 21-22. Plaintiff was granted leave to file an amended pleading and cautioned that “[a]ny claims not re-alleged in the amended complaint w[ould] be considered waived.” Id. (citing Lacey, 693 F.3d at 925, 928).

         Plaintiff filed his SAC on May 9, 2019. See generally ECF No. 60. In his SAC, Plaintiff no longer names Crespo as a Defendant. See id.; see also ECF No. 65-1 at 5. Consequently, all claims against Crespo are considered waived and the Court DISMISSES Crespo from this action. See Lacey, 693 F.3d at 925, 928.

         II. Eighth Amendment Claims

         All Defendants seek to dismiss Plaintiff's Eighth Amendment claims on the grounds that Plaintiff fails to allege any factual allegations sufficient to support an Eighth ...

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