1 2

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4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8

9 10 ANTHONY MORENO, Case No. EDCV 20-272-CJC (KK) 11 Plaintiff, 12 v. ORDER DISMISSING FIRST AMENDED COMPLAINT WITH 13 V. HULL, ET AL., LEAVE TO AMEND

14 Defendant(s).

15 16 17 I. 18 INTRODUCTION 19 Plaintiff Anthony Moreno (“Moreno”), an inmate proceeding pro se and in 20 forma pauperis, filed a First Amended Complaint (“FAC”) pursuant to

1983 (“Section 1983”) alleging violations of his First Amendment rights. For the 22 reasons discussed below, the Court dismisses the FAC with leave to amend. 23 II. 24 BACKGROUND 25 On January 24, 2020, Moreno, who is currently detained at Valley State Prison, 26 constructively filed1 a Complaint against five defendants V. Hull, A. DeLeon, R. 27 Under the “mailbox rule,” when a pro se prisoner gives prison authorities a 1 Rodriguez, J. Espinosa, and Hernandez (“Defendants”), who are correctional officers 2 at Ironwood State Prison employed by the California Department of Corrections and 3 Rehabilitation, in their individual and official capacities. ECF Docket No. (“Dkt.”) 1. 4 The Complaint arose out of incidents that occurred while Moreno was an inmate at 5 Ironwood State Prison and alleged Eighth and Fourteenth Amendment violations and 6 a state law claim for intentional infliction of emotional distress.

7 On March 12, 2020, the Court dismissed the Complaint with leave to amend, 8 finding A) the Eleventh Amendment barred Moreno’s claims against Defendants in 9 their official capacity; B) the Complaint failed to state an Eighth Amendment claim 10 against Defendants in their individual capacity; and C) the Complaint failed to state a 11 Fourteenth Amendment claim against Defendants in their individual capacity. Dkt. 12 12. 13 On May 28, 2020 Moreno constructively filed the instant FAC against 14 Defendants in their individual and official capacities. Dkt. 14. The FAC alleges a 15 First Amendment retaliation claim against all Defendants and sets forth substantially 16 similar factual allegations as in the Complaint.

. 17 According to the FAC, on May 31, 2018 at approximately 8:30 a.m., defendant 18 Hull conducted a “random ‘clothed’ pat down body search” of Moreno.

. 19 During the search, defendant Hull “turned to female correctional officer R. Luna, 20 directing her attention to a small tear located in [Moreno’s] ‘fly button crotch area’ 21 stating to her ‘This is where inmates hide bundles of drugs.’”

. Defendant 22 Hull “spread open the ‘fly area’ of [Moreno’s] pants and boxers, then contacted 23 [Moreno’s] penis while committing the exposure where such exposure was done in a 24 manner where female officer Luna could view [Moreno’s] exposed penis.”

25 Moreno questioned defendant Hull regarding his “harassment and unprofessional 26 27 1 conduct” and defendant Hull responded: “I’m gonna keep messing with you until I 2 catch you” and “me and you can get unprofessional whenever you want.”

. 3 On June 1, 2018, Moreno submitted a Form 22 Inmate Request Form 4 regarding defendant Hull’s “sexual misconduct.”

. 5 On June 4, 2018, defendant Hull questioned Moreno regarding the Form 22. 6

When Moreno explained why he had filed the Form 22, defendant Hull said: “All 7 right then motherfucker, it’s on! I’m gonna get you now.”

. 8 Later that same day, while returning to his housing unit, Moreno informed 9 defendant Hernandez he wanted to make a Prison Rape Elimination Act (“PREA”) 10 call regarding defendant Hull’s conduct.

. Defendant Hernandez instructed 11 Moreno to “go to his cell until she notified the sergeant of Moreno’s intentions.”

12 Later that same day, defendant Sergeant DeLeon came to Moreno’s housing 13 unit in connection with Moreno’s request to make a PREA call.

Moreno told 14 defendant DeLeon about the May 31, 2018 search incident, Hull’s comments earlier 15 that day, as well as two prior incidents with defendant Hull.2

. Defendant 16 DeLeon told Moreno: “If you go through with this then you are going to regret it. 17 You are going to sit in the hole (administrative segregation) for six months pending an 18 investigation, and that’s not worth it because your claims do not merit a PREA call. 19 Think this through very carefully.”

. Moreno alleges Defendant DeLeon told 20 Moreno he “would stop defendant Hull’s threatening (or action to harm or assault 21 Plaintiff) behavior and that he would include ‘in writing’ that no threatening, harm, or 22 retaliation would result from this or any previous action or discussion as long as 23 Plaintiff if he submitted any paperwork forego[ing] the terms ‘threat’ and ‘sexual 24 harassment’”.

Moreno also requested “the reduction in writing . . . [and] he 25

26 2 Moreno alleges that on February 12, 2018, he was restrained, slammed into a wall and strip searched by defendant Hull and told “shit in [a plastic] bag or do you 27 want to get fucked up and go to the hole.”

. Moreno alleges that on May 1 wanted a written response from Defendant Hernandez as to why she denied Plaintiff 2 the opportunity to make a PREA call”.

Defendant DeLeon told Moreno to file a 3 Form 22 and he would make sure defendant Hernandez responded to the Form 22 4 regarding her reason for denying the PREA call.

. Moreno alleges 5 defendant Hernandez failed to respond to the request, and defendant Hull continued 6 to harass and threaten Moreno and stated in front of other inmates and guards that 7 Moreno was “crying to the sergeant” and if Moreno “wants to play games then I’m 8 gonna play too”.

. 9 On June 11, 2018, Moreno submitted a Form 22 requesting documentation 10 regarding the February 12, 2018 incident with Defendant Hull because “it was quite 11 clear that defendant Hull was going to keep harassing and threatening Plaintiff and 12 defendant Hernandez had no intention of responding to the Form 22 . . . [despite] 13 [Moreno] and Defendant DeLeon’s agreement.”

. Five hours later, 14 defendant DeLeon confronted Moreno and said: “I already told you Moreno, if you 15 keep pressing this issue I’m gonna put you in the hole . . . and that’s after I take you 16 over to medical, put you in a paper jumpsuit for 24 hours, and perform a rape kit on 17 you.”

. 18 On June 20, 2018, Moreno was interviewed by a lieutenant regarding defendant 19 Hull’s conduct and defendant DeLeon’s “handling” of Moreno’s allegations.

at 20 13-14. The interview resulted in Moreno being placed in administrative segregation. 21

. Moreno was also taken to the Triage Treatment Center where a nurse and 22 then a male doctor conducted a PREA “Screening Evaluation.”

. The 23 next day on June 21, 2018, Moreno was interviewed as part of the “Investigative 24 Services Unit (ISU)” regarding the May 31, 2018 search and allegations against 25 defendant Hull for sexual misconduct.

. 26 On June 28, 2018, Moreno was released from administrative segregation to A- 27 Facility, rather than B-Facility where he had been housed previously.

. Prior 1 assault claim, the events that transpired February 12, 2018, [and] the [D]efendants’ 2 efforts to ‘chill’ Plaintiff from exercising his First Amendment rights.”

3 On July 17, 2018, while Moreno was walking on the exercise yard, defendants 4 Hull and DeLeon were standing in front of the A-Facility Program Office giving 5 “menacing glances” to Moreno, and defendant Hull informed another correctional 6 officer: “There’s the bitch who tried to PREA me.”

. Moreno submitted a 7 Form 22 regarding the menacing glances and defendant Hull’s comment.

8 On July 18, 2018, Moreno submitted another Form 22 to defendant Rodriguez 9 as to “why defendant DeLeon came to Building Two” the previous day.

. 10 On July 21, 2018, defendant Rodriguez told Moreno: “Hey Moreno, I didn’t 11 know that you and Sergeant DeLeon w[ere] having problems. Don’t be having me 12 sign 22 Forms against officers ‘cause we don’t play that crying shit over here.”

13 Later that day, defendants Rodriguez and Espinosa conducted a cell search of 14 Moreno’s cell and threw his paperwork and property on his top bunk.

. 15 Afterward, while Moreno was cleaning up his cell, he noticed two sheets of paper that 16 did not belong to him titled “Hurt Feelings Report” and “Telling Form.”

, 17 Ex. M. 18 On July 24, 2018, Moreno attempted to call the Coachella Valley Sexual Assault 19 Hotline number, but when he had trouble completing the call, he informed defendant 20 Rodriguez of the problem.

. Defendant Rodriguez responded: “We’ll put in 21 a work order.”

. Moreno then went to a program office where another 22 sergeant allowed to facilitate the call, which occurred on speakerphone in front of the 23 sergeant and defendant Rodriguez.

On July 26, 2018, Moreno was informed the 24 hotline number was “inoperable.”

. 25 On August 6, 2018, Moreno filed a “Staff Misconduct/Harassment” complaint 26 against defendants Rodriguez and Espinosa for the cell search.

. 27 On August 13, 2018, Moreno filed a request for his medical records pertaining 1 Moreno seeks compensatory and punitive damages.

. Moreno 2 specifically notes his claims for monetary relief have been exhausted.

3 III. 4 STANDARD OF REVIEW 5 Where a plaintiff is incarcerated and/or proceeding in forma pauperis, a court 6 must screen the complaint under

and 1915A and is required to 7 dismiss the case at any time if it concludes the action is frivolous or malicious, fails to 8 state a claim on which relief may be granted, or seeks monetary relief against a 9 defendant who is immune from such relief.

(e)(2)(B), 1915A; see 10 Barren v. Harrington,

(9th Cir. 1998). 11 Under Federal Rule of Civil Procedure 8 (“Rule 8”), a complaint must contain a 12 “short and plain statement of the claim showing that the pleader is entitled to relief.” 13 Fed. R. Civ. P. 8(a)(2). In determining whether a complaint fails to state a claim for 14 screening purposes, a court applies the same pleading standard as it would when 15 evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See 16 Watison v. Carter,

(9th Cir. 2012). 17 A complaint may be dismissed for failure to state a claim “where there is no 18 cognizable legal theory or an absence of sufficient facts alleged to support a 19 cognizable legal theory.” Zamani v. Carnes,

(9th Cir. 2007). In 20 considering whether a complaint states a claim, a court must accept as true all of the 21 material factual allegations in it. Hamilton v. Brown,

(9th Cir. 22 2011). However, the court need not accept as true “allegations that are merely 23 conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re 24 Gilead Scis. Sec. Litig.,

(9th Cir. 2008). Although a complaint 25 need not include detailed factual allegations, it “must contain sufficient factual matter, 26 accepted as true, to state a claim to relief that is plausible on its face.” Cook v. 27 Brewer,

(9th Cir. 2011) (quoting Ashcroft v. Iqbal,

, 1 “allows the court to draw the reasonable inference that the defendant is liable for the 2 misconduct alleged.”

The complaint “must contain sufficient allegations of 3 underlying facts to give fair notice and to enable the opposing party to defend itself 4 effectively.” Starr v. Baca,

(9th Cir. 2011). 5 “A document filed pro se is ‘to be liberally construed,’ and a ‘pro se complaint, 6 however inartfully pleaded, must be held to less stringent standards than formal 7 pleadings drafted by lawyers.’” Woods v. Carey,

(9th Cir. 2008). 8 However, liberal construction should only be afforded to “a plaintiff’s factual 9 allegations,” Neitzke v. Williams,

, 330 n.9,

,

339 (1989), and a court need not accept as true “unreasonable inferences or assume 11 the truth of legal conclusions cast in the form of factual allegations,” Ileto v. Glock 12 Inc.,

(9th Cir. 2003). 13 If a court finds the complaint should be dismissed for failure to state a claim, 14 the court has discretion to dismiss with or without leave to amend. Lopez v. Smith, 15

(9th Cir. 2000). Leave to amend should be granted if it 16 appears possible the defects in the complaint could be corrected, especially if the 17 plaintiff is pro se.

; see also Cato v. United States,

, 1106 18 (9th Cir. 1995). However, if, after careful consideration, it is clear a complaint cannot 19 be cured by amendment, the court may dismiss without leave to amend. Cato, 70 20 F.3d at 1107-11; see also Moss v. U.S. Secret Serv.,

(9th Cir. 2009). 21 IV. 22 DISCUSSION 23 A. THE ELEVENTH AMENDMENT BARS MORENO’S CLAIMS 24 AGAINST DEFENDANTS IN THEIR OFFICIAL CAPACITY 25 1. Applicable Law 26 “The Eleventh Amendment prohibits federal courts from hearing suits brought 27 against an unconsenting state.” Brooks v. Sulphur Springs Valley Elec. Co-op., 951 1

,

,

(1984)). As to state officials sued in 2 their official capacity, the Eleventh Amendment immunizes state officials sued in their 3 official capacity from claims for retrospective relief (including monetary damage 4 claims) but does not immunize them from claims for prospective relief (such as 5 forward-looking injunctive relief). Kentucky v. Graham,

, 105 S. 6 Ct. 3099,

(1985); Edelman v. Jordan,

,

, 39

(1974); Ex Parte Young,

,

,

8 (1908). 9 2. Analysis 10 Here, the Eleventh Amendment bars Moreno from pursuing claims that seek 11 monetary relief against Defendants, who are state employees, in their official capacity. 12 See Graham,

(holding the Eleventh Amendment bar “remains in 13 effect when State officials are sued for damages in their official capacity”). Moreno’s 14 claims against Defendants in their official capacity are, therefore, subject to dismissal. 15 B. THE FAC FAILS TO STATE A FIRST AMENDMENT 16 RETALIATION CLAIM AGAINST DEFENDANTS HULL AND 17 HERNANDEZ IN THEIR INDIVIDUAL CAPACITY 18 1. Applicable Law 19 “Prisoners have a First Amendment right to file grievances against prison 20 officials and to be free from retaliation for doing so.” Watison,

21 (citation omitted); Soranno’s Gasco, Inc. v. Morgan,

, 1314 (9th Cir. 22 1989). To state a viable First Amendment retaliation claim, a prisoner must allege five 23 elements: “(1) [a]n assertion that [a prison official] took some adverse action against 24 an inmate (2) because of (3) that prisoner’s protected conduct, and that such action 25 (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did 26 not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson,

559, 567-68 (9th Cir. 2005); see Pratt v. Rowland,

(9th Cir. 1995) 1 (observing prisoner “must show that there were no legitimate correctional purposes 2 motivating the actions he complained of”). 3 Adverse action is action that “would chill a person of ordinary firmness” from 4 engaging in that activity. Pinard v. Clatskanie School District,

(9th 5 Cir. 2006). An adverse action may be a harm or a threat of harm, and may be explicit 6 or implied. See Brodheim v. Cry,

(9th Cir. 2009). Though an 7 adverse action need not be an independent constitutional violation, inconsequential or 8 de minimis harms do not constitute adverse actions. Watison,

(to 9 support a claim, a harm must be “more than minimal”). 10 In addition, “[b]ecause direct evidence of retaliatory intent rarely can be 11 pleaded in a complaint, allegation of a chronology of events from which retaliation 12 can be inferred is sufficient to survive dismissal.” Watison,

(9th Cir. 13 2012); Pratt,

(“[T]iming can properly be considered as circumstantial 14 evidence of retaliatory intent[.]”). 15 2. Analysis 16 a. Defendant Hull 17 Moreno alleges that during a random search, defendant Hull contacted and 18 exposed Moreno’s penis and stated that he was going to “keep messing with you until 19 I catch you” and could “get unprofessional whenever you want.” FAC at 6. Moreno 20 further alleges that after he submitted a grievance regarding the search, defendant Hull 21 approached Moreno asking him about the grievance and stated, “All right then 22 motherfucker, it’s on! I’m gonna get you now.” Id. at 7. Moreno further alleges 23 defendant Hull continued to harass him and said he could “play games,” and after 24 Moreno was released from ad-seg, defendant Hull stated Moreno was a “bitch” who 25 tried to “PREA” him and gave him menacing glances. Id. at 19. 26 First, to the extent Moreno raises a retaliation claim based on defendant Hull’s 27 allegedly harassing search, Moreno fails to set forth allegations that defendant Hull 1 it is unclear what, if any, action allegedly triggered Hull’s search. See Patterson v. 2 Forbes, No. 2-18-CV-2588-WBS-DMCP,

, at *4 (E.D. Cal. July 9, 3 2019), report and recommendation adopted,

(E.D. Cal. Sept. 11, 4 2019) (dismissing retaliation claim “[b]ecause there are no allegations that the adverse 5 actions by Defendant were in retaliation to Plaintiff’s exercise of a constitutional 6 right”). 7 Second, to the extent Moreno raises a retaliation claim based on defendant 8 Hull’s non-specific statements and glares, Moreno fails to establish how these actions 9 rise to the level of adverse actions that are not de minimums. See Rhodes, 408 F.3d at 10 567-68. Moreover, even if Moreno could establish that defendant Hull took adverse 11 action against Moreno based on an exercise of his constitutional rights, Moreno fails 12 to demonstrate his First Amendment rights were chilled. FAC at 16. 13 Hence, Moreno’s First Amendment retaliation claim against defendant Hull is 14 subject to dismissal. 15 b. Defendant Hernandez 16 Moreno alleges defendant Hernandez refused to immediately let him make a 17 PREA call on June 4, 2018 on his way back to his cell, and that she instead instructed 18 Moreno to go to his cell until she notified defendant Sergeant DeLeon. Id. at 9. The 19 Court finds the fact that Moreno was temporarily prevented from making a PREA 20 call to report an incident that had occurred five days prior does not rise to the level of 21 an adverse action that would deter a prisoner of “ordinary firmness” from further 22 First Amendment activities. See Watison,

; Brown v. Fitzpatrick, No. 23 2:14-CV-00397-SAB,

, at *3 (E.D. Wash. May 21, 2015), aff’d, 667

(9th Cir. 2016) (finding no adverse action where the plaintiff’s 25 “placement in a cell with property restrictions was only temporary”). Even if Moreno 26 could demonstrate defendant Hernandez’s failure to immediately allow Plaintiff to 27 make the PREA call was an adverse action, he has not demonstrated this decision was 1 abide by prison regulations. Moreover, Moreno has not sufficiently alleged such 2 action had a chilling effect on his pursuing the PREA call. 3 Hence, Moreno’s First Amendment retaliation claim against defendant 4 Hernandez is subject to dismissal.

LEAVE TO FILE A SECOND AMENDED COMPLAINT 7 For the foregoing reasons, the FAC is subject to dismissal. As the Court is 8 unable to determine whether amendment would be futile, leave to amend is granted. 9 See Lucas v. Dep’t of Corr.,

(9th Cir. 1995) (per curiam). Plaintiff is 10 advised that the Court’s determination herein that the allegations in the FAC are 11 insufficient to state a particular claim should not be seen as dispositive of that claim. 12 Accordingly, while the Court believes Plaintiff has failed to plead sufficient factual 13 matter in his pleading, accepted as true, to state a claim to relief that is viable on its 14 face, Plaintiff is not required to omit any claim in order to pursue this action. 15 However, if Plaintiff asserts a claim in his Second Amended Complaint that has been 16 found to be deficient without addressing the claim’s deficiencies, then the Court, 17 pursuant to the provisions of

, ultimately will submit to the assigned 18 district judge a recommendation that such claim be dismissed with prejudice for 19 failure to state a claim, subject to Plaintiff’s right at that time to file Objections with 20 the district judge as provided in the Local Rules Governing Duties of Magistrate 21 Judges. 22 Accordingly, IT IS ORDERED THAT within twenty-one (21) days of the 23 service date of this Order, Plaintiff choose one of the following three options: 24 1. Plaintiff may file a Second Amended Complaint to attempt to cure the 25 deficiencies discussed above. The Clerk of Court is directed to mail Plaintiff a blank 26 Central District civil rights complaint form to use for filing the Second Amended 27 Complaint, which the Court encourages Plaintiff to use. 1 If Plaintiff chooses to file a Second Amended Complaint, he must clearly 2 designate on the face of the document that it is the “Second Amended Complaint,” it 3 must bear the docket number assigned to this case, and it must be retyped or 4 rewritten in its entirety, preferably on the court-approved form. Plaintiff shall not 5 include new defendants or allegations that are not reasonably related to the claims 6 asserted in the FAC. In addition, the Second Amended Complaint must be complete 7 without reference to the FAC, Complaint, or any other pleading, attachment, or 8 document. 9 An amended complaint supersedes the preceding complaint. Ferdik v. 10 Bonzelet,

(9th Cir. 1992). After amendment, the Court will treat 11 all preceding complaints as nonexistent.

Because the Court grants Plaintiff 12 leave to amend as to all his claims raised here, any claim raised in a preceding 13 complaint is waived if it is not raised again in the Second Amended Complaint. 14 Lacey v. Maricopa Cty.,

(9th Cir. 2012). 15 The Court advises Plaintiff that it generally will not be well-disposed toward 16 another dismissal with leave to amend if Plaintiff files a Second Amended Complaint 17 that continues to include claims on which relief cannot be granted. “[A] district 18 court’s discretion over amendments is especially broad ‘where the court has already 19 given a plaintiff one or more opportunities to amend his complaint.’” Ismail v. Cty. 20 of Orange,

(C.D. Cal. 2012); see also Ferdik,

1261. Thus, if Plaintiff files a Second Amended Complaint with claims on 22 which relief cannot be granted, the Second Amended Complaint will be 23 dismissed without leave to amend and with prejudice. 24 2. Alternatively, Plaintiff may file a notice with the Court that he intends to 25 stand on the allegations in his FAC. If Plaintiff chooses to stand on the FAC despite 26 the deficiencies in the claims identified above, then the Court will submit a 27 recommendation to the assigned district judge that the deficient claims discussed 1 Plaintiff’s right at that time to file Objections with the district judge as provided in the 2 Local Rules Governing Duties of Magistrate Judges. If the assigned district judge 3 accepts the findings and recommendations of the undersigned Magistrate Judge and 4 dismisses the deficient claims discussed in this Order, the Court will issue a separate 5 order regarding service of any claims remaining in the Complaint at that time. 6 3. Finally, Plaintiff may voluntarily dismiss the action without prejudice, 7 pursuant to Federal Rule of Civil Procedure 41(a). The Clerk of Court is directed to 8 mail Plaintiff a blank Notice of Dismissal Form, which the Court encourages Plaintiff 9 to use if he chooses to voluntarily dismiss the action. 10 Plaintiff is explicitly cautioned that failure to timely respond to this 11 Order will result in this action being dismissed without prejudice for failure to 12 prosecute and/or obey Court orders pursuant to Federal Rule of Civil 13 Procedure 41(b). 14 15 Dated: July 01, 2020

16 HONORABLE KENLY KIYA KATO United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27