(PC) Shannon v. CDCR

8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA MYCHAEL TYRONE SHANNON, No. 2:17-CV-1084-DAD-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS RALPH DIAZ, et al., 15 Defendants.

17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the Court is Defendants’ motion to dismiss. See ECF No. 78.

19 Defendants have filed a request for judicial notice in support of their motion. See ECF No. 78-3.

20 Also filed in support of Defendants’ motion is the declaration of defense counsel, Andrea Sloan, Esq. See ECF No. 79. Plaintiff has filed an opposition to Defendants’ motion. See ECF No. 80.

22 Defendants have filed a reply. See ECF No. 81. Plaintiff has filed a sur-reply without prior leave of court. See ECF No. 82.

24 In considering a motion to dismiss, the Court must accept all allegations of material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The Court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 28 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009).

4 In addition, pro se pleadings are held to a less stringent standard than those drafted by lawyers.

5 See Haines v. Kerner, 404 U.S. 519, 520 (1972).

6 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief” in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must contain more than “a formulaic recitation of the elements of a cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the speculative level.” Id. at 555-56. The complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. “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.”

16 Iqbal, 129 S. Ct. at 1949. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility for entitlement to relief.” Id. (quoting Twombly, 550 U.S. at 557).

21 In deciding a Rule 12(b)(6) motion, the Court generally may not consider materials outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The Court may, however, consider: (1) documents whose contents are alleged in or attached to the complaint and whose authenticity no party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question, and upon which the complaint necessarily relies, but which are not attached to the complaint, see Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994).

2 Finally, leave to amend must be granted “[u]nless it is absolutely clear that no amendment can cure the defects.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc).

6 I. BACKGROUND 7 A. Procedural History 8 Addressing Plaintiff’s second amended complaint, the Court issued findings and recommendations on August 16, 2019, that the action be dismissed without further leave to amend for failure to state a claim. See ECF No. 35. In so doing, the Court applied a reasonableness test. See id. Plaintiff did not file objections and the District Judge adopted the findings and recommendations in full on October 11, 2019. See ECF No. 36. Final judgment was issued the same day. See ECF No. 37.

14 On March 25, 2021, Plaintiff filed a motion for relief from the Court’s final judgment. See ECF No. 41. On April 2, 2021, the District Judge granted Plaintiff’s motion, citing the Ninth Circuit’s 2020 decision in Harrison v. Kernan, 971 F.3d 1069 (9th Cir. 2020), which changed the level of scrutiny for the gender-based prison regulation at issue in this case to intermediate scrutiny. See ECF No. 42 (minute order). Thereafter, Plaintiff filed the operative third amended complaint after obtaining leave of court to amend, and Defendants filed the pending motion to dismiss.

21 B. Plaintiff’s Allegations 22 This action currently proceeds on Plaintiff’s third amended complaint (TAC) at ECF No. 66. See ECF No. 77 (order). Plaintiff names four Defendants, as follows: (1) Ralph Diaz, former Secretary of California Department of Corrections and Rehabilitation (“CDCR”); (2) Sergeant Swan, Correctional Officer at the California Medical Facility (“CMF”); (3) C.

26 Tileston, Associate Warden of CMF; and (4) Robert W. Fox, former Warden of CMF. See ECF No. 66, pg. 1-2. Plaintiff alleges Defendants violated his right to equal protection under the Fourteenth Amendment because female inmates in the CDCR are offered the choice of purchasing any one of seven different kinds of alarm clocks and male inmates are afforded no such choice. See id. at 3. Plaintiff alleges Defendant Diaz instituted the inmate property regulation and Defendants Swan, Tileston, and Fox implemented it. See id. at 1-6. Plaintiff specifically alleges Defendants acted with intentional discrimination during Plaintiff’s inmate appellate review. See id. at 3.

6 Among these allegations of Plaintiff’s inmate appeal, Plaintiff claims Defendant Swan commented, “Love to deny those constitutional rights.” See id. at 2-3. Plaintiff also claims Defendants Tileston and Fox laughed at the comments made by Defendant Swan. See id. Further, Plaintiff alleges Defendant Diaz “scoffed” at Plaintiff when Plaintiff attempted to continue his inmate appeal, saying: “You failed to demonstrate the facts of your appeal regarding the state-side ban I put in place on male prisoners owning alarm clocks.” See id. at 3.

13 II. DISCUSSION 14 In their motion to dismiss, Defendants argue: (1) Plaintiff has failed to allege any facts establishing Defendant Diaz’s personal involvement or subsequent supervisory liability arising from the property regulation at issue; and (2) Defendants are entitled to qualified immunity. See ECF No. 78-1 (points and authorities). In support of their motion, Defendants have filed a request for judicial notice of the following: (1) Plaintiff’s inmate grievance records; (2) the fact that Defendant Diaz assumed the position of Secretary of the CDCR in September 2018, and resigned from this position on October 1, 2021; and (3) a publication from the CDCR. See ECF No. 78-3 (request for judicial notice).

22 A. Failure to State a Claim Against Defendant Diaz 23 Defendants assert Plaintiff’s TAC fails to allege sufficient facts to show Defendant Diaz, who is a supervisory defendant, was personally involved or subject to liability for the claimed constitutional violation. See ECF No. 78-1, pg. 1-8.

26 / / / / / / / / / 1 To state a claim under 42 U.S.C. § 1983, the plaintiff must allege an actual connection or link between the actions of the named defendants and the alleged deprivations. See Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations concerning the involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Rather, the plaintiff must set forth specific facts as to each individual defendant’s causal role in the alleged constitutional deprivation. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988).

12 Supervisory personnel are generally not liable under § 1983 for the actions of their employees. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (holding that there is no respondeat superior liability under § 1983). A supervisor is only liable for the constitutional violations of subordinates if the supervisor participated in or directed the violations. See id. The Supreme Court has rejected the notion that a supervisory defendant can be liable based on knowledge and acquiescence in a subordinate’s unconstitutional conduct because government officials, regardless of their title, can only be held liable under § 1983 for his or her own conduct and not the conduct of others. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Supervisory personnel who implement a policy so deficient that the policy itself is a repudiation of constitutional rights and the moving force behind a constitutional violation may, however, be liable even where such personnel do not overtly participate in the offensive act. See Redman v. Cnty of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc).

24 When a defendant holds a supervisory position, the causal link between such defendant and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978).

27 Vague and conclusory allegations concerning the involvement of supervisory personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). “[A] plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the constitution.” Iqbal, 662 U.S. at 676.

3 In this case, Plaintiff’s TAC contains few factual allegations regarding Defendant Diaz. Defendants assert: 5 . . . Plaintiff’s allegations fail to state a claim based on judicially noticeable facts which show (1) Diaz had no involvement in Plaintiff’s 6 appeal (Moseley Decl. ¶ 4, Exhibit A); (2) Diaz was not Secretary when the appeal was denied (Defs.’ Req. Judicial Not. Ex. A-1 (showing Diaz’s 7 tenure as CDCR Secretary as September 2018-October 1, 2020) versus Moseley Decl. ¶ 4, Exhibit A (showing Plaintiff’s appeal was denied on 8 August 24, 2016)); and (3) Diaz had no involvement in the implementation or enforcement of the regulations at issue during the 9 relevant time frame as he was also not the Secretary at that time (id.).

10 ECF No. 78-1, pg. 6.

11 The Court agrees with Defendants that Plaintiff’s TAC fails to allege sufficient fact to show supervisory liability on the part of Defendant Diaz. As Defendants note, while Plaintiff broadly alleges that Defendant Diaz “implemented” the inmate property regulation at issue and even commented “…regarding the state-side ban I put in place on male prisoners…,” Plaintiff fails to allege specific facts. See ECF No. 78, pg. 6. Plaintiff’s allegations fail to establish an affirmative act or omission by Diaz that violated Plaintiff’s rights. Nor do these allegations causally link Defendant Diaz to the alleged constitutional violation, or demonstrate a custom, policy, or practice implemented by Defendant Diaz that was the moving force behind a constitutional violation arising from the regulation barring male inmates from purchasing alarm clocks. Furthermore, Plaintiff alleges Defendant Diaz failed to act on Plaintiff’s request for reconsideration of his inmate appeal.

21 See ECF No. 66, pg. 3. However, Plaintiff has not explained how this failure resulted in a constitutional violation.

23 The Court does not reach Defendants’ other arguments, based on their request for judicial notice, that judicially noticeable facts show that Defendant Diaz could not have been involved in the alleged constitutional violation because he was not in a decision-making position concerning creation or implementation of the regulation at issue. According to Defendants, Diaz was Secretary of the CDCR from September 2018 through October 2020, and thus could not have been involved in implementation of the regulation at issue in 2014 or application to Plaintiff, including consideration of Plaintiff’s inmate appeal, in 2016. See ECF No. 78-1, pgs. 6-7.

2 First, just because Defendant Diaz was not CDCR director during the times relevant to the TAC is not to say Defendant Diaz does not bear responsibility. It may be that Defendant Diaz was involved in ways other than as Director of the CDCR after 2016. As discussed above, Plaintiff has failed to allege facts to show Defendant Diaz’ involvement, which is a sufficient basis to dismiss Defendant Diaz. Second, as discussed below the Court finds that Defendants are entitled to qualified immunity on Plaintiff’s underlying constitutional claim, rendering moot any further consideration of arguments based on potentially judicially noticeable facts.

9 B. Qualified Immunity 10 Defendants argue they are entitled to qualified immunity. See ECF No. 78-1, pg. 9- 13. Government officials enjoy qualified immunity from civil damages unless their conduct violates “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In general, qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). In ruling upon the issue of qualified immunity, the initial inquiry is whether, taken in the light most favorable to the party asserting the injury, the facts alleged show the defendant’s conduct violated a constitutional right. See Saucier v. Katz, 533 U.S. 194, 201 (2001). If a violation can be made out, the next step is to ask whether the right was clearly established. See id. This inquiry “must be undertaken in light of the specific context of the case, not as a broad general proposition. . . .” Id. “[T]he right the official is alleged to have violated must have been ‘clearly established’ in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Id. at 202 (citation omitted). Thus, the final step in the analysis is to determine whether a reasonable officer in similar circumstances would have thought his conduct violated the alleged right. See id. at 205.

26 / / / / / / / / / 1 When identifying the right allegedly violated, the Court must define the right more narrowly than the constitutional provision guaranteeing the right, but more broadly than the factual circumstances surrounding the alleged violation. See Kelly v. Borg, 60 F.3d 664, 667 (9th Cir. 1995). For a right to be clearly established, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand [that] what [the official] is doing violates the right.”

6 See Anderson v. Creighton, 483 U.S. 635, 640 (1987).

7 The first factors in the qualified immunity analysis involve purely legal questions.

8 See Trevino v. Gates, 99 F.3d 911, 917 (9th Cir. 1996). The third inquiry involves a legal determination based on a prior factual finding as to the reasonableness of the government official’s conduct. See Neely v. Feinstein, 50 F.3d 1502, 1509 (9th Cir. 1995). The district court has discretion to determine which of the Saucier factors to analyze first. See Pearson v. Callahan, 555 12 U.S. 223, 236 (2009). In resolving these issues, the Court must view the evidence in the light most favorable to plaintiff and resolve all material factual disputes in favor of plaintiff. See Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003).

15 Defendants argue: 16 Defendants reasonably believed that all non-racial prison policies…would pass constitutional muster so long as the policies satisfied 17 the deferential Turner rational-relationship test. See Turner v. Safley, 482 U.S. 78 (1987). Indeed, this Court so held when it previously found 18 Plaintiff failed to state a claim (F&Rs, ECF No. 36; Order Adopting F&Rs, ECF No. 36), in Gonzalez v. Mullen, No. C 09-0953 CW PR, 2013 19 WL 1333560, at *4 (N.D. Cal. Mar. 29, 2013), which raised a similar challenge to similar property regulations, and in Harrison v. Kernan, No. 20 16-CV-07103-RMI, 2021 WL 4295303, at *6 (N.D. Cal. Sept. 21, 2021), which dismissed nearly identical claims.

ECF No. 78-1, pg. 10.

23 Defendants’ arguments are well-taken. Plaintiff initiated this action in 2017 – before Harrison was decided by the Ninth Circuit in 2020. Until 2020, courts had applied the lowest level of scrutiny – reasonableness based on a rational relationship between the regulation and legitimate penological interests – to claims challenging gender-based prison regulations like the regulation at issue here. See e.g. Gonzalez, 2013 WL 1333560, at *4. In Gonzalez, for example, the district court concluded that an inmate’s challenge to a gender-based prison regulation failed to state a claim under the rational relationship reasonableness test. See id. This Court reached the same conclusion when it initially dismissed the case in 2019. See ECF No. 36. Thus, at the time the lawsuit was filed, the clearly established law upheld the regulation at issue. The law changed in 2020 with Harrison. However, whether a law is clearly established for purposes of qualified immunity is based on the law at it existed at the time of the alleged violation, here sometime prior to 2017 when the case was filed. See Robinson v. York, 566 F.3d 817, 826 (9th Cir. 2009).

7 Therefore, Defendants are entitled to qualified immunity.

8 On remand following the Ninth Circuit’s decision in Harrison, the district court reached the same conclusion. See Harrison v. Kernan, 2021 WL 4295303, at *6. The court stated: 11 Given the state of the law as described above, and given that qualified immunity “gives government officials breathing room to make 12 reasonable but mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law,” it would be 13 impossible for Plaintiff to even prove that Defendants' promulgation of the challenged regulations was mistaken in 2008, let alone proving that 14 Defendants were either incompetent or knowingly violated the law.

15 Id. / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / 1 Ill. CONCLUSION 2 Based on the foregoing, the undersigned recommends that Defendants’ motion to | dismiss, ECF No. 78, be GRANTED, in whole, and that this action be DISMISSED without leave || to amend.These findings and recommendations are submitted to the United States District Judge || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days after being || served with these findings and recommendations, any party may file written objections with the || Court. Responses to objections shall be filed within 14 days after service of objections. Failure to | file objections within the specified time may waive the right to appeal. See Martinez v. YIst, 951 | F.2d 1153 (Oth Cir. 1991).

11 | Dated: February 21, 2024 Ss..c0_, DENNIS M. COTA 13 UNITED STATES MAGISTRATE JUDGE