United States District Court, S.D. California
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTIONS TO DISMISS SECOND AMENDED COMPLAINT
FOR FAILING TO STATE A CLAIM (ECF NOS. 65, 78)
L. SAMMARTINO, UNITED STATES DISTRICT JUDGE
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.
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.
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' RVRs 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.
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
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.
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.
alleges it is “common protocol” for CDCR
officials to “retaliate against inmates who complain
against ‘crooked' c/os, 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.” Id.at 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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).
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).
“[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).
Claims Against Crespo
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.
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).
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.
Eighth Amendment Claims
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 ...