Juan Molina v. Ralph Diaz ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA – EASTERN DIVISION 9 10 JUAN MOLINA, Case No. EDCV 20-00518-SVW (AS) 11 Plaintiff, ORDER DISMISSING THIRD AMENDED 12 v. COMPLAINT WITH LEAVE TO AMEND 13 RALPH DIAZ, et al., 14 Defendants. 15 16 INTRODUCTION 17 18 On December 20, 2019, Juan Molina (“Plaintiff”), an inmate 19 formerly housed at Ironwood State Prison (“Ironwood”) in Blythe, 20 California,1 proceeding pro se, filed a Civil Rights Complaint 21 (“Complaint”) pursuant to 42 U.S.C. § 1983.2 (Dkt. Nos. 1, 1-1, 22 1 Plaintiff was recently transferred to Centinela State Prison 23 in Imperial, California. (See Dkt. No. 34). 24 2 Plaintiff filed the Complaint in the United States District Court for the Northern District of California, which transferred 25 the action to this Court on March 11, 2020, because it concerns alleged incidents at Ironwood, which is located in this District. 26 (Dkt. No. 9). On April 20, 2020, Plaintiff filed an “Objection to 27 Venue,” seeking to transfer this action back to the Northern District of California. (Dkt. No. 15). The Court construed this 28 as a motion for transfer of venue pursuant to 28 U.S.C. § 1404(a), 1 1-2). On April 17, 2020, the Court dismissed the Complaint, with 2 leave to amend, because it failed to state a claim for relief. 3 (Dkt. No. 14). Plaintiff subsequently filed a First Amended 4 Complaint (Dkt. No. 30)3 and a Second Amended Complaint (Dkt. No. 5 36), which were each dismissed, in turn, with leave to amend (Dkt. 6 Nos. 32, 37). 7 8 On November 18, 2021, Plaintiff filed a Third Amended 9 Complaint pursuant to 42 U.S.C. §§ 1983 and 1985 (“Third Amended 10 Complaint” or “TAC”). The Court has screened the Third Amended 11 Complaint as prescribed by 28 U.S.C. § 1915A and 42 U.S.C. § 1997e. 12 For the reasons discussed below, the Court DISMISSES Plaintiff’s 13 Third Amended Complaint WITH LEAVE TO AMEND.4 14 15 16 17 and denied the motion on April 21, 2020. (Dkt. No. 16). On May 18 19, 2020, Plaintiff filed a Notice of Appeal regarding the Court’s Order denying the Motion to Transfer (Dkt. No. 17), which the Ninth 19 Circuit subsequently dismissed for lack of jurisdiction (Dkt. No. 21). 20 3 Initially, Plaintiff failed to timely file a First Amended 21 Complaint, which prompted the Court to issue an Order to Show Cause on June 2, 2020 (Dkt. No. 20), followed by a Report and 22 Recommendation on August 11, 2020, recommending that the case be 23 dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute and obey court orders (Dkt. No. 24 23). Finally, after multiple extensions of time, Plaintiff filed a First Amended Complaint on December 30, 2020. The Court thus 25 vacated the Report and Recommendation on February 24, 2021. (Dkt. No. 31). 26 27 4 Magistrate judges may dismiss a complaint with leave to amend without approval from the district judge. McKeever v. Block, 28 932 F.2d 795, 798 (9th Cir. 1991). 1 THIRD AMENDED COMPLAINT 2 3 The Third Amended Complaint names a total of nineteen 4 defendants. (TAC at 4-12). Eleven of these are named solely in 5 their official capacity: (1) Ralph Diaz, Secretary of the CDCR;5 6 (2) Jeffrey Macomber, CDCR Undersecretary of Operations; (3) Connie 7 Gipson, CDCR Director of the Division of Adult Institutions; (4) 8 Howard Moseley, CDCR Director of the Office of Appeals; (5) Jared 9 Lozano, CDCR Assistant Director of High Security, Males, in the 10 Division of Adult Institutions; (6) Kirk Stinson, CDCR Chief of 11 Internal Affairs (Field Operations), Division of Correctional 12 Policy Research and Internal Oversight; (7) Neil McDowell, Warden, 13 Ironwood; (8) R.W. Smith, Chief Deputy Warden, Ironwood; (9) S. 14 Moore, Associate Warden, Ironwood; (10) J. Martin, Correctional 15 Dog Handler, Ironwood; (11) M. Cota, Correctional Staff Service 16 Analyst, Ironwood. (TAC at 4-7, 11-12). The remaining eight 17 defendants are named solely in their individual capacities: (1) H. 18 Liu, Correctional Captain, Ironwood; (2) J. Frias, Correctional 19 Lieutenant, Ironwood; (3) G. Gasgonia, Correctional Lieutenant, 20 Ironwood; (4) J. Zermeno, Correctional Sergeant, Ironwood; (5) S. 21 5 On October 1, 2020, Kathleen Allison was appointed as the 22 Secretary of the CDCR, replacing Ralph Diaz in that role, as 23 Plaintiff acknowledges. (TAC at 17 n.4); see Cal. Dep’t Corr. & Rehab., “Kathleen Allison, CDCR Secretary,” available at 24 https://www.cdcr.ca.gov/about-cdcr/secretary/ (last visited Dec. 14, 2021). Allison should therefore be substituted for Diaz as 25 the proper defendant for claims against the CDCR Secretary in her official capacity. See Fed. R. Civ. P. 25(d) (“An action does not 26 abate when a public officer who is a party in an official capacity 27 dies, resigns, or otherwise ceases to hold office while the action is pending. The officer’s successor is automatically substituted 28 as a party.”). 1 Striplin, Correctional Investigative Services Unit (“ISU”) 2 Officer, Ironwood; (6) E. Nunez, Correctional ISU Officer, 3 Ironwood; (7) B. Wilson, Correctional Officer, Ironwood; (8) 4 Montgomery, Correctional Officer, Ironwood. (TAC at 8-12). 5 6 Plaintiff alleges that he was a participant in a prisoner 7 hunger strike several years ago at Pelican Bay State Prison in Del 8 Norte County, California (“Pelican Bay”), where he was formerly 9 housed. (TAC at 15). The hunger strike, which had been 10 orchestrated by members of four major California prison gangs, 11 precipitated a prisoner class action suit in the United States 12 District Court for the Northern District of California, against 13 the CDCR and various state officials, regarding the use of 14 indeterminate solitary confinement in California prisons and the 15 use of confidential information in disciplinary hearings at Pelican 16 Bay, among other issues. (See TAC at 15-16); see also Ashker v. 17 Newsom, N.D. Cal. Case No. 09-CV-05796-CW (RMI).6 The case 18 6 In that case, the court recently granted a one-year extension 19 of the settlement agreement to July 15, 2020, because the plaintiffs had demonstrated, among other things, “due process 20 violations arising out of Defendants’ failure to provide class members with adequate notice of the charges and evidence against 21 them and by failing to disclose non-sensitive information or evidence that class members could have used to mount a defense at 22 their disciplinary hearings.” Ashker, 2021 WL 5316414, at *17 (N.D. Cal. Apr. 9, 2021), modified, 2021 WL 5339614 (N.D. Cal. May 23 13, 2021). The court found that “[t]he inaccurate or incomplete 24 disclosures that Defendants provided to class members deprived class members of the ability to challenge or otherwise raise 25 questions as to the reliability of confidential information that could have been or was used against them during their disciplinary 26 hearings.” Id. However, on July 12, 2021, the magistrate judge in the case recommended denying a further extension of the 27 agreement because, among other things, the plaintiffs failed to 28 sufficiently demonstrate ongoing and systemic due process 1 culminated in a settlement in 2015.7 (See TAC at 16); Ashker, 2021 2 WL 5316414, at *3 (N.D. Cal. Apr. 9, 2021) (describing settlement). 3 4 Plaintiff alleges that since that settlement, CDCR officials 5 have viewed the Ashker “hunger strikers” as a threat and have been 6 cracking down on them through a discriminatory “underground policy” 7 of using fabricated evidence against them as grounds to remove them 8 from the general population. (TAC at 13, 17-18). Plaintiff claims 9 that he has been a target of this policy since his transfer to 10 Ironwood. (See TAC at 18-28). 11 12 According to Plaintiff, Defendant Nunez, an Ironwood 13 correctional officer, prepared a “falsified” confidential 14 memorandum on September 10, 2018, in which a “paid informant” 15 alleged that Plaintiff was part of a conspiracy to introduce 16 unauthorized controlled substances and cell phones through a 17 “compromised” staff member. (TAC at 18). Nunez allegedly placed 18 this false memorandum in Plaintiff’s central file, but Plaintiff 19 was not served with notice of it, as required by CDCR regulations, 20 and he was given no “opportunity to contest, challenge or refute” 21 violations with respect to CDCR’s supposed fabrication and 22 allegedly inadequate disclosure of confidential information or 23 CDCR’s supposed failure to ensure that the confidential information it uses is reliable. Ashker, 2021 WL 4310607, at *3 (N.D. Cal. 24 July 12, 2021). As of this date, that issue remains pending before the district judge in the case. 25 7 The plaintiff class for the due process claims in Ashker 26 consisted of all inmates who were “assigned to an intermediate term 27 at the Pelican Bay SHU on the basis of gang validation, under the policies and procedures in place as of September 10, 2012.” Ashker, 28 2019 WL 330461, at *1. 1 it. (TAC at 18). Plaintiff alleges that similar confidential 2 memoranda were later prepared by Defendant Sgt. Zermeno on December 3 3, 2018, and by Nunez on January 4 and 18, 2019, which were also 4 placed in Plaintiff’s file without notice. (TAC at 18-19). 5 6 On January 22, 2019, Defendant Nunez, along with Defendants 7 Martin and Striplin, conducted a search of the Facility D 8 vocational welding classroom and purportedly found drugs and cell 9 phones hidden behind the exhaust ventilation unit in the wall. 10 (See TAC at 19-20; TAC Exhs. D-E). A Rules Violation Report (“RVR”) 11 was subsequently issued based on this search, falsely charging 12 Plaintiff with conspiracy to distribute controlled substances (RVR 13 Log No. 6824745, or “2019 RVR”). (See TAC at 19-21). Plaintiff 14 was placed in administrative segregation (“Ad Seg”). (TAC at 20). 15 On April 25, 2019, Nunez prepared a supplement to the 2019 RVR 16 which falsely described the search and investigation, stating among 17 other things that “reliable, confidential sources provided 18 intelligence regarding the introduction of narcotics and contraband 19 cellphones by [Plaintiff] and [another inmate, Lopez].” (TAC at 20 19-20; Exh. E). Plaintiff alleges “upon information and belief” 21 that Nunez’s “paid informant” had tried to convince Lopez to join 22 a contraband-smuggling conspiracy and had told Lopez there was a 23 “compromised” staff member willing to help. (TAC at 20 n.6). 24 Plaintiff asserts that he never spoke with any informant or staff 25 member about a smuggling operation. (TAC at 20 n.6). Plaintiff 26 thus notes that the confidential memoranda used against him 27 “contain no specific date, time, place, conversation, where 28 [Plaintiff] met with the confidential paid informant; no place 1 where he met with the compromised staff; no description of how he 2 collected or received this drug money, the proceeds from this 3 illegal enterprise, or any other nexus between Plaintiff [] and 4 this alleged conspiracy.”8 (TAC at 20 n.6). 5 6 At Plaintiff’s disciplinary hearing on May 12, 2019, Defendant 7 Lt. Gasgonia, the presiding officer, relied on the confidential 8 memoranda to find Plaintiff guilty of conspiracy to distribute 9 10 8 Nunez’s “Confidential Information Disclosure Form” states the following about the confidential information used against 11 Plaintiff in the proceedings: 12 On 1/22/2019 confidential sources identified you inmate 13 Juan MOLINA, CDCR #K30854 collaborated with Inmate Luis LOPEZ, CDCR #V23120 responsible for the Distribution of 14 a Controlled Substance(s) at Ironwood State Prison (ISP). Specifically, these sources provided reliable 15 information which [led] investigators to a location and discovery of a large amount of narcotics and contraband 16 (cellphones) concealed within the Facility D VOC Welding 17 classroom. 18 On 04/03/2019 ISP received the results from the Department of Justice Bureau of Forensics Services which 19 identified the controlled substances sent for testing results were positive for Heroin and Methamphetamines. 20 Therefore, you MOLINA are being charged with Conspiring 21 to Distribute a Controlled Substance for sales [of] heroin and methamphetamines. 22 23 (TAC Exh. C). The Form indicates that the confidential source(s) were considered reliable because they “previously provided 24 confidential information which proved to be true,” and because “[p]art of the information provided [was] corroborated through 25 investigation or by information provided by non-confidential sources.” (TAC Exh. C). In addition, the Form notes that the 26 documentation for the confidential information was located in 27 confidential memoranda authored by Nunez, dated September 10, 2018, and January 4 and 18, 2019, and a “confidential debrief” by Sgt. 28 Zermeno, dated December 3, 2018. (TAC Exh. C). 1 controlled substances. (TAC at 21; TAC Exh. D). On May 28, 2019, 2 Defendant Associate Warden Moore, the chief disciplinary officer, 3 confirmed the sanctions and penalties, including 180 days of lost 4 credits, 10 days confined to quarters, and the temporary loss of 5 various privileges. (TAC at 22; TAC Exh. D). 6 7 Plaintiff submitted administrative appeals claiming that 8 Defendants Nunez, Zermeno, Frias, Gasgonia, and Chief Deputy Warden 9 Smith conspired to violate his rights in these disciplinary 10 proceedings. (TAC at 24-25; TAC Exh. A). Defendants Cota and 11 Smith denied the appeal at the second level on July 17, 2019, and 12 Defendant Liu denied the third-level appeal on November 1, 2019. 13 (TAC at 24-25; TAC Exh. B). 14 15 The following January, Plaintiff was again subjected to a 16 disciplinary charge. According to Plaintiff, a team of ISU and 17 Institutional Gang Investigations unit (“IGI”) officers 18 “simultaneously” removed about twenty inmates, including 19 Plaintiff, from their cells for searching and questioning in the 20 early morning hours on January 23, 2020. (TAC at 22). Defendant 21 Wilson searched Plaintiff’s cell that morning and purportedly found 22 and confiscated two cell phones and chargers, for which Plaintiff 23 was subsequently charged with a rule violation (RVR Log No. 24 6959996, or “2020 RVR”). (TAC at 22; TAC Exh. F). At the 25 disciplinary hearing on February 4, 2020, Plaintiff denied 26 possessing the phone, and the testimony of several inmate witnesses 27 revealed a discrepancy in the time of the search as recorded on 28 the RVR. (TAC at 22-23; TAC Exh. F). The presiding hearing 1 officer, Defendant Lt. Zavala, found Plaintiff not guilty based on 2 the inconsistent time recorded on the RVR and the officers’ failure 3 to follow proper evidence procedures. (TAC at 23; TAC Exh. F). 4 5 Plaintiff asserts that this “coordinated institutional raid” 6 on January 23, 2020, “was directed, planned, orchestrated, 7 implemented and/or approved by” Defendants Diaz, Macomber, Gipson, 8 Lozano, Moseley, Stinson, McDowell, and Smith (all of whom are sued 9 solely in their official capacity, as noted above).9 (TAC at 25; 10 see TAC 4-7). He states that this was carried out “to enforce an 11 underground policy of retaliation against ‘targeted’ state 12 prisoners,” including Plaintiff. (TAC at 25-26). He claims that 13 these Defendants thus violated his rights under the “Fifth, Sixth, 14 Eighth and Fourteenth Amendments to the United States Constitution 15 pursuant to 42 U.S.C. § 1985.” (TAC at 25). He further claims 16 that these Defendants violated California’s Information Practices 17 Act (Cal. Civ. Code, § 1798 et seq.) by causing “manufactured, 18 falsified documents” to be placed in Plaintiff’s file.10 (TAC at 19 9 Plaintiff later states that “all other named Defendants[] 20 in this cause of action are named in their individual capacities.” (TAC at 26). However, Plaintiff’s list of Defendants includes 21 three other Defendants sued solely in their official capacity: Martin, Cota, and Moore. (See TAC at 7, 11-12). 22 23 10 This state law provides, in relevant part, that a person may bring a civil action for damages and injunctive relief against 24 an agency whenever such agency “[f]ails to maintain any record concerning any individual with such accuracy, relevancy, 25 timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, 26 rights, opportunities of, or benefits to the individual that may 27 be made on the basis of such record, if, as a proximate result of such failure, a determination is made which is adverse to the 28 individual.” Cal. Civ. Code §§ 1798.45(b), 1798.47, 1798.48. 1 26). Plaintiff states that he sues these Defendants in their 2 official capacities for declaratory and injunctive relief “for the 3 removal of [the 2019 RVR].” (TAC at 26). Plaintiff also seeks 4 punitive damages from these Defendants. (TAC at 26). 5 6 Plaintiff claims that the other Defendants who are sued in 7 their individual capacities (Liu, Frias, Lt. Gasgonia, Sgt. 8 Zermeno, Striplin, Nunez, Wilson, and Montgomery) violated his 9 rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments 10 by participating in an “effort to fabricate, falsify, manufacture 11 and present inaccurate, untruthful and unreliable documentation 12 and false physical evidence” against Plaintiff. (TAC at 26-27; 13 see TAC 8-12). He seeks compensatory and punitive damages from 14 these “second tier Defendants.” (TAC at 27). 15 16 STANDARD OF REVIEW 17 18 Congress mandates that district courts initially screen civil 19 complaints filed by prisoners seeking redress from a governmental 20 entity or employee. 28 U.S.C. § 1915A. A court may dismiss such 21 a complaint, or any portion thereof, if the court concludes that 22 the complaint: (1) is frivolous or malicious, (2) fails to state a 23 claim upon which relief may be granted, or (3) seeks monetary 24 relief from a defendant who is immune from such relief. Id. 25 § 1915A(b); see also id. § 1915(e)(2) (The court “shall dismiss 26 the case at any time if the court determines that . . . the 27 action . . . (i) is frivolous or malicious; (ii) fails to state a 28 claim on which relief may be granted; or (iii) seeks monetary 1 relief against a defendant who is immune from such relief.”); 2 accord Lopez v. Smith, 203 F.3d 1122, 1126–27 & n.7 (9th Cir. 2000) 3 (en banc). In addition, dismissal may be appropriate if a complaint 4 violates Rule 8 of the Federal Rules of Civil Procedure. McHenry 5 v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996); Nevijel v. Northcoast 6 Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981). 7 8 In considering whether to dismiss a complaint, a court is 9 generally limited to the pleadings and must construe “[a]ll factual 10 allegations set forth in the complaint . . . as true and . . . in 11 the light most favorable” to the plaintiff. Lee v. City of Los 12 Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (citation omitted). 13 Moreover, pro se pleadings are “to be liberally construed” and 14 “held to less stringent standards” than those drafted by a lawyer. 15 Erickson, 551 U.S. at 94 (citation omitted); see also Hebbe v. 16 Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (“Iqbal incorporated the 17 Twombly pleading standard and Twombly did not alter courts’ 18 treatment of pro se filings; accordingly, we continue to construe 19 pro se filings liberally when evaluating them under Iqbal.”). 20 Nevertheless, dismissal for failure to state a claim can be 21 warranted based on either the lack of a cognizable legal theory or 22 the absence of factual support for a cognizable legal theory. 23 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th 24 Cir. 2008). 25 26 27 28 1 DISCUSSION 2 3 Plaintiff’s Third Amended Complaint warrants dismissal for 4 violation of Federal Rule of Civil Procedure 8, failure to state a 5 claim for relief, and other deficiencies discussed below. Leave 6 to amend is granted, however, because it is not “absolutely clear 7 that the deficiencies of the complaint could not be cured by 8 amendment.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). 9 10 A. The Third Amended Complaint Violates Federal Rule of Civil 11 Procedure 8 12 13 Rule 8 governs how to plead claims in a complaint. 14 Specifically, Rule 8(a) requires that a complaint contain “‘a short 15 and plain statement of the claim showing that the pleader is 16 entitled to relief,’ in order to ‘give the defendant fair notice 17 of what the . . . claim is and the grounds upon which it rests.’” 18 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting 19 Fed. R. Civ. P. 8(a)). To comply with Rule 8, moreover, each 20 allegation of a complaint must be “simple, concise, and direct,” 21 Fed. R. Civ. P. 8(d)(1), though conclusory allegations are 22 insufficient. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 686 (2009). 23 A complaint is subject to dismissal for violating Rule 8 if “one 24 cannot determine from the complaint who is being sued, for what 25 relief, and on what theory.” McHenry v. Renne, 84 F.3d 1172, 1178 26 (9th Cir. 1996). 27 28 1 Plaintiff’s Third Amended Complaint violates Rule 8 because 2 it fails to give Defendants fair notice of the claims being asserted 3 and the grounds on which each claim rests. Instead, the Third 4 Amended Complaint includes several pages of factual allegations 5 (see TAC at 15-25), followed by general assertions that Defendants 6 violated various constitutional rights (see TAC at 25, 27), but 7 Plaintiff never clearly states how each individual Defendant 8 violated each of these rights. For example, Plaintiff claims that 9 all the Defendants who are sued in their individual capacities – 10 i.e., Defendants (1) Liu, (2) Frias, (3) Lt. Gasgonia, (4) Sgt. 11 Zermeno, (5) Striplin, (6) Nunez, (7) Wilson, and (8) Montgomery 12 (see TAC 8-12) - violated his Fifth, Sixth, Eighth, and Fourteenth 13 Amendment rights by participating in an “effort to fabricate, 14 falsify, manufacture and present inaccurate, untruthful and 15 unreliable documentation and false physical evidence” against 16 Plaintiff. (TAC at 26-27). However, these Defendants each have 17 different duties and responsibilities in the prison, and they each 18 had a different role in the alleged circumstances. Moreover, each 19 of these constitutional amendments encompasses different legal 20 rights, with distinct requirements. The Fourteenth Amendment, for 21 example, encompasses rights to due process and equal protection, 22 among other rights. Without further clarification, each Defendant 23 would be unable to discern which rights he or she is alleged to 24 have violated, and what he or she allegedly did to violate such 25 rights.11 26 27 11It is also unclear whether Plaintiff intends to assert claims 28 under other constitutional provisions that are not specifically 1 The Third Amended Complaint thus warrants dismissal, with 2 leave to amend, for violation of Rule 8 because it deprives 3 Defendants of fair notice of who is being sued, for what conduct, 4 and on what legal grounds. See McHenry, 84 F.3d at 1178. To 5 remedy this problem, Plaintiff must, at a minimum, separate each 6 legal predicate into a separate claim and expressly identify which 7 Defendant(s) are sued in each claim, and which allegations are at 8 issue in each claim. 9 10 B. The Fifth and Sixth Amendments Are Inapplicable Here 11 12 As noted above, Plaintiff asserts that Defendants violated 13 his rights under the Fifth and Sixth Amendments, though he does 14 not specify what allegations are being offered to support such 15 claims. Regardless, these constitutional provisions have no 16 apparent relevance to this action. 17 18 19 20 mentioned in the Third Amended Complaint. In particular, Plaintiff appears to claim that Defendants’ actions were part of an effort 21 to “retaliate” against him for being a class member in the Ashker litigation and for filing other lawsuits against CDCR officials. 22 (See TAC at 17-18, 24-26). However, Plaintiff never indicates that 23 he is asserting a First Amendment retaliation claim. See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (“Within the 24 prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor 25 took some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the 26 inmate’s exercise of his First Amendment rights, and (5) the action 27 did not reasonably advance a legitimate correctional goal.”) (footnote and citation omitted). If Plaintiff intends to do so, 28 he must clarify this. 1 The “Fifth Amendment’s Due Process and Equal Protection 2 Clauses apply only to the federal government, not to state actors.” 3 Peoples v. Schwarzenegger, 402 F. App’x 204, 205 (9th Cir. 2010); 4 see also Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir. 5 2001); Bingue v. Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008). 6 Because all the Defendants in this action are state actors, any 7 due process or equal protection claims are asserted pursuant to 8 the Fourteenth Amendment. 9 10 The Sixth Amendment, on the other hand, applies only to 11 criminal prosecutions. Because a prison disciplinary proceeding 12 is not a criminal proceeding, the Sixth Amendment is inapplicable 13 to any of Plaintiff’s allegations. Cook v. Solorzano, 2019 WL 14 1367808, at *5 (E.D. Cal. Mar. 26, 2019) (Sixth Amendment not 15 applicable to prison disciplinary proceedings); Killensworth v. 16 Godfrey, 2019 WL 5455717, at *7 (C.D. Cal. Oct. 24, 2019) 17 (no Sixth Amendment right to confront and cross-examine witnesses 18 at prison disciplinary hearing); see also Wolff v. McDonnell, 418 19 U.S. 539, 556 (1974) (“Prison disciplinary proceedings are not a 20 part of a criminal prosecution, and the full panoply of rights due 21 a defendant in such proceedings do not apply.”). 22 23 Accordingly, Plaintiff cannot state any claims under the Fifth 24 and Sixth Amendments. 25 26 27 28 1 C. Plaintiff Fails to State an Eighth Amendment Claim 2 3 The Third Amended Complaint cites that Eighth Amendment, but 4 it offers no facts to support a claim under this provision. The 5 Eighth Amendment’s prohibition against cruel and unusual punishment 6 protects prisoners from inhumane conditions of confinement. Morgan 7 v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (citing Farmer 8 v. Brennan, 511 U.S. 825, 832 (1994)). Prison officials therefore 9 have a “duty to ensure that prisoners are provided adequate 10 shelter, food, clothing, sanitation, medical care, and personal 11 safety.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). A 12 prison official violates the Eighth Amendment by failing to ensure 13 inmate safety when: (1) an inmate is incarcerated under conditions 14 posing “a substantial risk of serious harm”; and (2) the prison 15 official deliberately “disregards the risk by failing to take 16 reasonable measures to abate it.” Farmer, 511 U.S. at 837, 847; 17 Hearns v. Terhune, 413 F.3d 1036, 1040-42 (9th Cir. 2005). 18 19 Here, Plaintiff does not allege that Defendants caused him to 20 be subjected to a substantial risk of serious harm or otherwise 21 denied the “minimal civilized measure of life’s necessities.” See 22 Farmer, 511 U.S. at 834. Although Plaintiff alleges that he was 23 sent to administrative segregation, he fails to include any facts 24 about such conditions to show that they were cruel or inhumane in 25 any respect. See also Shotwell v. Brandt, 2012 WL 6569402, at *3 26 (N.D. Cal. Dec. 17, 2012) (“[T]he usual hardships associated with 27 administrative segregation do not violate the Eighth Amendment.”) 28 (citing Toussaint v. Yockey, 722 F.2d 1490, 1494 n. 6 (9th Cir. 1 1984); Anderson v. County of Kern, 45 F.3d 1310, 1315–16 (9th Cir. 2 1995)). Moreover, while Plaintiff alleges that he was punished 3 with a ten-day loss of “yard recreation privileges” among other 4 sanctions (TAC at 22), a short-term loss of outdoor exercise does 5 not rise to an Eighth Amendment violation. Compare Keenan v. Hall, 6 83 F.3d 1083, 1089-90 (9th Cir. 1996) (denial of outdoor exercise 7 for six months while in segregation sufficient to proceed to trial 8 on Eighth Amendment claim), with May v. Baldwin, 109 F.3d 557, 565- 9 66 (9th Cir. 1997) (temporary, twenty-one day denial of outdoor 10 exercise, with no medical effects, is not a substantial deprivation 11 under the Eighth Amendment). Accordingly, Plaintiff fails to state 12 an Eighth Amendment claim against Defendants. 13 14 D. Plaintiff Fails to State a Discrimination Claim Under the 15 Equal Protection Clause or 42 U.S.C. § 1985 16 17 Plaintiff appears to assert claims of discrimination under 18 the Equal Protection Clause, as well as 42 U.S.C. § 1985. (See 19 TAC 1, 13, 25). Such claims fail, however, because Plaintiff does 20 not demonstrate that Defendants’ actions against him had an 21 impermissibly discriminatory motive. 22 23 The Equal Protection Clause requires that persons who are 24 similarly situated be treated alike. City of Cleburne v. Cleburne 25 Living Center, Inc., 473 U.S. 432, 439 (1985). A plaintiff may 26 establish an equal protection claim by showing that the plaintiff 27 was intentionally discriminated against on the basis of the 28 plaintiff's membership in a protected class, such as race. See, 1 e.g., Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th Cir. 2 2005); Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 3 2001). “[N]either prisoners nor ‘persons convicted of crimes’ 4 constitute a suspect class for equal protection purposes.” United 5 States v. Whitlock, 639 F.3d 935, 941 (9th Cir. 2011) (citations 6 omitted). Plaintiff does not allege that he was ever subjected to 7 discrimination on the basis of race or any other protected class. 8 9 If the actions in question do not involve a suspect 10 classification, a plaintiff may establish an equal protection claim 11 by showing that similarly situated individuals were intentionally 12 treated differently without a rational relationship to a legitimate 13 state purpose. Village of Willowbrook v. Olech, 528 U.S. 562, 564 14 (2000); San Antonio School District v. Rodriguez, 411 U.S. 1 15 (1972). To state an equal protection claim under this theory, a 16 plaintiff must allege that: (1) the plaintiff is a member of an 17 identifiable class; (2) the plaintiff was intentionally treated 18 differently from others who were similarly situated; and (3) there 19 is no rational basis for the difference in treatment. Village of 20 Willowbrook, 528 U.S. at 564. 21 22 Here, Plaintiff appears to claim that Defendants discriminated 23 against him as a participant in the Ashker hunger strike and 24 litigation. (See TAC at 13, 17-18, 22). However, aside from 25 conclusory allegations that he and others were “targeted” for 26 disciplinary violations, he fails to provide any facts that raise 27 a plausible inference that Defendants’ actions had a discriminatory 28 motive – i.e., that Defendants subjected Plaintiff to disciplinary 1 citations or other harms because of his involvement in the hunger 2 strike. It is not enough to allege merely that Plaintiff and many 3 other inmates were subjected to cell searches and questioning on a 4 particular day. Instead, to show discrimination, Plaintiff would 5 need to allege facts showing that Defendants treated him 6 differently from other, similarly situated inmates who had not 7 participated in the hunger strike. 8 9 Because Plaintiff’s allegations fail to demonstrate a 10 discriminatory motive, he also fails to state a claim under § 1985, 11 which generally requires, among other things, allegations of “some 12 racial, or perhaps otherwise class-based, invidiously 13 discriminatory animus behind the conspirators’ action.” Griffin 14 v. Breckenridge, 403 U.S. 88, 102 (1971); see also Caldeira v. Cty. 15 of Kauai, 866 F.2d 1175, 1182 (9th Cir. 1989) (“The absence of a 16 section 1983 deprivation of rights precludes a section 1985 17 conspiracy claim predicated on the same allegations.”). The Ninth 18 Circuit has “extended [§ 1985(3)] beyond race only when the class 19 in question can show that there has been a governmental 20 determination that its members require and warrant special federal 21 assistance in protecting their civil rights.” Schultz v. 22 Sundberg, 759 F.2d 714, 718 (9th Cir.1985) (internal quotation 23 marks omitted). “There are only two ways to show such a 24 governmental determination: ‘we require either that the courts have 25 designated the class in question a suspect or quasi-suspect 26 classification requiring more exacting scrutiny or that Congress 27 has indicated through legislation that the class required special 28 protection.’” Denney v. Drug Enf't Admin., 508 F. Supp. 2d 815, 1 836 (E.D. Cal. 2007) (quoting Shultz, 759 F.2d at 718; see also RK 2 Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1056 (9th Cir. 3 2002) (plaintiffs under § 1985(3) must show “that they are members 4 of a class that the government has determined ‘requires and 5 warrant[s] special federal assistance in protecting their civil 6 rights’”) (quoting Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 7 (9th Cir. 1992)). The Third Amended Complaint is devoid of any 8 allegations that Plaintiff belongs to a protected class, and there 9 are no allegations that Defendants were motivated by a racial or 10 class-based, invidiously discriminatory animus. The absence of an 11 invidiously discriminatory animus on the part of Defendants is 12 fatal to Plaintiff’s § 1985 claim. 13 14 E. The Third Amended Complaint Fails to State a Due Process Claim 15 Against Defendants Striplin, Frias, Gasgonia, Liu, Wilson, 16 and Montgomery 17 18 1. Applicable Law 19 20 “To obtain relief on § 1983 claims based upon procedural due 21 process, the plaintiff must establish the existence of (1) a 22 liberty or property interest protected by the Constitution; (2) a 23 deprivation of the interest by the government; and (3) lack of 24 process.” Guatay Christian Fellowship v. Cnty. of San Diego, 670 25 F.3d 957, 983 (9th Cir. 2011) (citation and alterations omitted). 26 Thus, “[t]he first inquiry in every due process challenge is 27 whether the plaintiff has been deprived of a protected interest in 28 ‘property’ or ‘liberty.’” American Mfrs. Mut. Ins. Co. v. 1 Sullivan, 526 U.S. 40, 59 (1999); see also Bd. of Regents of State 2 Colls. v. Roth, 408 U.S. 564, 569 (1972) (“The requirements of 3 procedural due process apply only to the deprivation of interests 4 encompassed by the Fourteenth Amendment’s protection of liberty 5 and property.”). 6 7 “Prison disciplinary proceedings are not part of a criminal 8 prosecution, and the full panoply of rights due a defendant in such 9 proceedings does not apply.” Wolff, 418 U.S. at 556; Ponte v. 10 Real, 471 U.S. 491, 495 (1985). Rather, the Supreme Court has held 11 that, in the context of prison disciplinary hearings, due process 12 requires only certain procedural safeguards: (1) the inmate should 13 receive “advance written notice of the claimed violation” so the 14 inmate can marshal the facts and prepare a defense; (2) “[a]t least 15 a brief period of time after the notice, no less than 24 hours, 16 should be allowed to the inmate to prepare” for the hearing; (3) 17 the inmate “should be allowed to call witnesses and present 18 documentary evidence in his defense when permitting him to do so 19 will not be unduly hazardous to institutional safety or 20 correctional goals”; (4) “[w]here an illiterate inmate is involved, 21 . . . or [where] the complexity of the issue makes it unlikely that 22 the inmate will be able to collect and present the evidence 23 necessary for an adequate comprehension of the case,” the inmate 24 should be given assistance at the hearing; and (5) the inmate 25 should receive “a written statement by the factfinders as to the 26 evidence relied on and reasons for the disciplinary action taken.” 27 Wolff, 418 U.S. at 563-70 (citation omitted). Additionally, 28 inmates are entitled to a fair and impartial decisionmaker at 1 disciplinary hearings, see Edwards v. Balisok, 520 U.S. 641, 647 2 (1997) (“The due process requirements for a prison disciplinary 3 hearing are in many respects less demanding than those for criminal 4 prosecution, but they are not so lax as to let stand the decision 5 of a biased hearing officer who dishonestly suppresses evidence of 6 innocence.”), and “the requirements of due process are satisfied 7 if some evidence supports the [disciplinary] decision,” 8 Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455 9 (1985); Burnsworth v. Gunderson, 179 F.3d 771, 773 (9th Cir. 1999). 10 11 “Due process guarantees [an inmate] that the evidence used to 12 validate him meet the ‘some evidence’ evidentiary standard.” 13 Castro v. Terhune, 712 F.3d 1304, 1314 (9th Cir. 2013). This 14 “minimally stringent” test requires a federal court to determine 15 “only whether there is any evidence in the record that could support 16 the conclusion.” Id. (emphasis in original). Accordingly, the 17 court does “not examine the entire record, independently assess 18 witness credibility, or reweigh the evidence; rather, ‘the relevant 19 question is whether there is any evidence in the record that could 20 support the conclusion.’” Bruce v. Ylst, 351 F.3d 1283, 1287 (9th 21 Cir. 2003) (quoting Hill, 472 U.S. at 455-56). “Evidence only must 22 bear some indicia of reliability to be considered ‘some evidence.’” 23 Castro, 712 F.3d at 1314 (citation omitted). Further, evidence 24 may qualify as “some evidence” even where it does not “logically 25 preclude[] any conclusion but the one reached by the disciplinary 26 board.” Hill, 472 U.S. at 457. 27 28 1 A prison disciplinary committee’s determination that rests 2 upon confidential information satisfies due process if “(1) the 3 record contains some factual information from which the committee 4 can reasonably conclude that the information was reliable, and (2) 5 the record contains a prison official’s affirmative statement that 6 safety considerations prevent the disclosure of the informant's 7 name.” Zimmerlee, 831 F.2d at 186. “Review of both the reliability 8 determination and the safety determination should be deferential.” 9 Id. “Reliability may be established by: (1) the oath of the 10 investigating officer appearing before the committee as to the 11 truth of his report that contains confidential information, (2) 12 corroborating testimony, (3) a statement on the record by the 13 chairman of the committee that he had firsthand knowledge of 14 sources of information and considered them reliable based on the 15 informant's past record, or (4) an in camera review of the 16 documentation from which credibility was assessed.” Id. at 186– 17 87. “Proof that an informant previously supplied reliable 18 information is sufficient.” Id. at 187. 19 20 2. Analysis 21 22 Although unclear, Plaintiff’s Third Amended Complaint appears 23 to claim that Defendants violated due process by “participating in 24 [an] individual, collective, joint effort to fabricate, falsify, 25 manufacture and present inaccurate, untruthful and unreliable 26 documentation and false physical evidence against Plaintiff.” (TAC 27 at 13, 27). However, to state claims against Defendants in their 28 individual capacities, Plaintiff must allege facts showing how each 1 Defendant personally caused a violation of Plaintiff’s rights. See 2 Hines v. Youseff, 914 F.3d 1218, 1228 (9th Cir. 2019) (“[T]he 3 inmates must show that each defendant personally played a role in 4 violating the Constitution. An official is liable under § 1983 5 only if ‘culpable action, or inaction, is directly attributed to 6 them.’”) (footnotes and citations omitted); OSU Student Alliance 7 v. Ray, 699 F.3d 1053, 1069 (9th Cir. 2012) (a government official 8 may be held liable in his or her individual capacity under § 1983 9 only “for his or her own misconduct”) (quoting Iqbal, 556 U.S. at 10 676). Allegations regarding § 1983 causation “must be 11 individualized and focus on the duties and responsibilities of each 12 individual defendant whose acts or omissions are alleged to have 13 caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 14 628, 633 (9th Cir. 1988) (citations omitted). 15 16 Here, Plaintiff sues eight different Defendants in their 17 individual capacities – Nunez, Zermeno, Striplin, Frias, Gasgonia, 18 Liu, Wilson, and Montgomery. (See TAC at 8-12). However, aside 19 from Nunez and Zermeno, Plaintiff fails to allege sufficient facts 20 showing how these individual Defendants violated his due process 21 rights. 22 23 First, Defendants Wilson and Montgomery did not cause a due 24 process violation because they were involved solely in the 2020 25 RVR matter, for which Plaintiff was subsequently found not guilty 26 and thus suffered no constitutional deprivation. (See TAC at 22- 27 24); see also Shotwell v. Brandt, 2012 WL 6569402, at *2 (N.D. Cal. 28 Dec. 17, 2012) (no due process violation where the RVR was 1 ultimately dismissed, as “[a] prisoner has no constitutionally 2 guaranteed immunity from being falsely or wrongly accused of 3 conduct which may result in the deprivation of a protected liberty 4 interest”) (citing Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 5 1989); Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986)). 6 7 Second, as for Defendants Striplin, Frias, Gasgonia, and Liu, 8 Plaintiff fails to allege that they ever knowingly caused Plaintiff 9 to be disciplined based on false or unreliable evidence, or that 10 they otherwise prevented Plaintiff from adequately defending 11 against the disciplinary charges in any respect. For example, 12 Plaintiff alleges that Officer Striplin was involved in handling 13 and assessing the drugs underlying the 2019 RVR charge, and that 14 Lt. Frias “approved” Officer Nunez’s “falsified [2019] RVR,” but 15 there is no indication that either Defendant knew or should have 16 known that false or unreliable evidence was being used against 17 Plaintiff in the matter. Furthermore, while Lt. Gasgonia, the 18 presiding disciplinary hearing officer, was responsible for 19 assessing the evidence against Plaintiff, see Zimmerlee, 831 F.2d 20 at 186, Plaintiff does not specify any way in which Gasgonia 21 neglected to fulfill that duty, nor is any due process violation 22 apparent on the face of the hearing report, as the Court has 23 previously explained.12 (See Dkt. No. 32 at 12-20; Dkt. No. 37 at 24 12 The disciplinary hearing report regarding the 2019 RVR 25 states that the confidential memoranda were all reviewed by the hearing officer and were deemed reliable on several grounds, 26 including because other confidential sources independently provided the same information, the confidential information was 27 self-incriminating, and/or the investigation corroborated part of 28 the confidential information. (See TAC Exh. D at 4-9). On its 1 15-19). Finally, Defendant Liu appears to have participated solely 2 by denying an administrative appeal regarding the 2019 RVR (TAC at 3 25), which does not render him liable for a due process violation. 4 See Fiorito v. Anderson, 2019 WL 1602176, at *3 (C.D. Cal. Apr. 5 10, 2019) (“Courts in this circuit generally agree that denying an 6 inmate appeal does not, by itself, lead to liability.”) (collecting 7 cases). 8 9 Accordingly, Plaintiff fails to state a due process claim 10 against Defendants Striplin, Frias, Gasgonia, Liu, Wilson, and 11 Montgomery.13 12 13 14 15 face, this would appear to suffice under Zimmerlee. See, e.g., 16 Servin v. Hill, 2014 WL 6612028, at *9 (E.D. Cal. Nov. 20, 2014) (disciplinary committee sufficiently established reliability of 17 confidential information by finding that “other confidential 18 source[s] had independently provided the same information,” “the information provided by the source was self-incriminating,” and 19 “part of the information provided by the source was corroborated through investigation or information provided by non-confidential 20 sources”) (citing Zimmerlee, 831 F.2d at 186–87); Flores v. Lewis, 2013 WL 664658, at *5 (N.D. Cal. Feb. 21, 2013) (same). To the 21 extent Plaintiff believes Lt. Gasgonia had a constitutional duty to assess the evidence further, or to provide Plaintiff any further 22 opportunity to challenge the evidence against him in the 23 proceedings, Plaintiff must clarify his allegations in that regard. 24 13 Although Plaintiff potentially states a claim against Defendants Nunez and Zermeno based on his allegations that these 25 Defendants falsified evidence against him for use in the 2019 disciplinary proceeding (see TAC at 18-21), dismissal of the entire 26 Third Amended Complaint, with leave to amend, is nonetheless 27 warranted due to Plaintiff’s failure to provide fair notice to any Defendant of the claims and allegations being asserted, as 28 discussed above with respect to Rule 8. 1 F. Plaintiff’s Official Capacity Claims Are Deficient 2 3 Official-capacity suits provide “another way of pleading an 4 action against an entity of which an officer is an agent,” which 5 in this case is the CDCR, an agency of the State of California. 6 Kentucky v. Graham, 473 U.S. 159, 165 (1985); Community House, Inc. 7 v. City of Boise, Idaho, 623 F.3d 945, 966–67 (9th Cir. 2010) (an 8 official capacity suit is treated as a suit against the entity). 9 To state a claim against a state officer in his or her official 10 capacity, Plaintiff must identify a custom, policy, or practice of 11 the state or prison that is responsible for the alleged conduct. 12 Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001). 13 14 Here, assuming that the Third Amended Complaint adequately 15 states at least a due process claim against CDCR officials in their 16 official capacity based on an alleged policy of using fabricated 17 documents and other evidence to subject inmates such as Plaintiff 18 to disciplinary sanctions in violation of due process (see TAC at 19 13, 25-26), Plaintiff’s official-capacity claims are nonetheless 20 deficient for the following reasons. 21 22 First, Plaintiff seeks monetary relief in his claims against 23 the official-capacity Defendants (see TAC at 4, 6), which is barred 24 by the Eleventh Amendment. Howlett v. Rose, 496 U.S. 356, 365 25 (1990) (Eleventh Amendment bars suits for damages against states 26 and their official arms); Brown v. Cal. Dep’t of Corr., 554 F.3d 27 747, 752 (9th Cir. 2009) (“The State of California has not waived 28 its Eleventh Amendment immunity with respect to claims brought 1 under § 1983 in federal court, and the Supreme Court has held that 2 § 1983 was not intended to abrogate a State’s Eleventh Amendment 3 immunity.”). Only prospective injunctive relief is available 4 against officers sued in their official capacity. See Doe v. 5 Lawrence Livermore Nat. Lab'y, 131 F.3d 836, 839 (9th Cir. 1997) 6 (“In what has become known as part of the Ex parte Young doctrine, 7 a suit for prospective injunctive relief provides a narrow, but 8 well-established, exception to Eleventh Amendment immunity.”) 9 (citing Ex parte Young, 209 U.S. 123 (1908)). 10 11 Second, Plaintiff inappropriately sues eleven different 12 Defendants solely in their official capacity, including the 13 Secretary of the CDCR and several other high-level CDCR officials, 14 as well as the Warden and other supervisory officials at Ironwood. 15 (TAC at 4-7, 11-12). Because official-capacity claims are treated 16 as a suit against the entity, naming multiple employees of the same 17 agency is generally duplicative and redundant. See, e.g., Rosas 18 v. Baca, 2012 WL 933609, at *2 (C.D. Cal. Mar. 20, 2012) (dismissing 19 claims against three of four individual defendants sued in their 20 official capacities as duplicative); Thomas v. Baca, 2006 WL 21 132078, at *1 (C.D. Cal Jan. 13, 2006) (dismissing claims against 22 six of seven individual defendants sued in their official 23 capacities as duplicative). 24 25 Official-capacity claims for injunctive relief are 26 appropriate only against officers who have the authority to 27 28 1 implement the requested relief.14 See Hodgins v. Woodford, 2006 WL 2 2482423, at *2 (E.D. Cal. Aug. 28, 2006) (“It is not necessary to 3 name multiple defendants in their official capacity. Plaintiff 4 need only name that official who has some cognizance over the 5 policy at issue and who could effectively issue orders 6 within CDCR if the court were to rule in plaintiff’s favor.”); 7 Santos Garcia v. San Bernardino Sheriff’s Dep’t, 2020 WL 8365260, 8 at *5 (C.D. Cal. Dec. 8, 2020) (“[T]o pursue prospective injunctive 9 relief, [the plaintiff] must identify a specific [department] 10 official in his or her official capacity who has a direct connection 11 to the action that Plaintiff wishes to enjoin.”); see also Rouser 12 v. White, 707 F. Supp. 2d 1055, 1066 (E.D. Cal. 2010) (the proper 13 defendant for injunctive relief in suit seeking implementation of 14 CDCR policy is CDCR Secretary in his official capacity, while the 15 proper defendant to implement institution-specific policy is prison 16 warden in his official capacity). In any amended complaint, 17 therefore, Plaintiff should name in their official capacity only 18 19 20 14 Relatedly, officers sued solely in their official capacity 21 do not need to have had any personal involvement in the acts that allegedly violated Plaintiff’s rights. See, e.g., Hartmann v. 22 California Dep't of Corr. & Rehab., 707 F.3d 1114, 1127 (9th Cir. 23 2013) (“A plaintiff seeking injunctive relief against the State is not required to allege a named official’s personal involvement in 24 the acts or omissions constituting the alleged constitutional violation.”) (citing Hafer v. Melo, 502 U.S. 21, 25 (1991); 25 Kentucky v. Graham, 473 U.S. 159, 166 (1985)). What matters is that the named official can implement the requested injunctive 26 relief, in the event such relief is granted in the case. For that 27 reason, as noted above, the current Secretary of the CDCR, Kathleen Allison, should be substituted for Ralph Diaz, who no longer serves 28 in that role. See Fed. R. Civ. P. 25(d). 1 those officers who have the authority to implement the injunctive 2 relief that Plaintiff seeks in this case. 3 4 CONCLUSION 5 6 For the reasons discussed above, the Court DISMISSES 7 Plaintiff’s claims WITH LEAVE TO AMEND. 8 9 If Plaintiff still wishes to pursue this action, he shall file 10 a Fourth Amended Complaint no later than 30 days from the date of 11 this Order. The Fourth Amended Complaint must cure the pleading 12 defects discussed above and shall be complete in itself without 13 reference to prior pleadings. See L.R. 15-2 (“Every amended 14 pleading filed as a matter of right or allowed by order of the 15 Court shall be complete including exhibits. The amended pleading 16 shall not refer to the prior, superseding pleading.”). This means 17 that Plaintiff must allege and plead any viable claims again. 18 19 In any amended complaint, Plaintiff should identify the nature 20 of each separate legal claim and confine his allegations to those 21 operative facts supporting each of his claims. For each separate 22 legal claim, Plaintiff should state the civil right that has been 23 violated and the supporting facts for that claim only. Pursuant 24 to Federal Rule of Civil Procedure 8(a), all that is required is a 25 “short and plain statement of the claim showing that the pleader 26 is entitled to relief.” However, Plaintiff is advised that the 27 allegations in the Fourth Amended Complaint should be consistent 28 with the authorities discussed above. In addition, the Fourth 1 Amended Complaint may not include new defendants or claims not 2 reasonably related to the allegations in the previously filed 3 complaints. Plaintiff is strongly encouraged to utilize the 4 standard civil rights complaint form when filing any amended 5 complaint, a copy of which is attached. 6 7 Plaintiff is explicitly cautioned that failure to timely file 8 a Fourth Amended Complaint, or failure to correct the deficiencies 9 described above, may result in a recommendation that this action, 10 or portions thereof, be dismissed with prejudice for failure to 11 prosecute and/or failure to comply with court orders. See Fed. R. 12 Civ. P. 41(b); Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d 13 884, 891 (9th Cir. 2019) (“The failure of the plaintiff eventually 14 to respond to the court’s ultimatum - either by amending the 15 complaint or by indicating to the court that it will not do so - 16 is properly met with the sanction of a Rule 41(b) dismissal.” 17 (emphasis omitted; quoting Edwards v. Marin Park, Inc., 356 F.3d 18 1058, 1065 (9th Cir. 2004))). 19 20 // 21 22 // 23 24 // 25 26 27 28 1 Plaintiff is further advised that if he no longer wishes to 2 pursue this action in its entirety or with respect to particular 3 defendants or claims, he may voluntarily dismiss all or any part 4 of this action by filing a Notice of Dismissal in accordance with 5 Federal Rule of Civil Procedure 41(a)(1). A form Notice of 6 Dismissal is attached for Plaintiff’s convenience. 7 8 IT IS SO ORDERED. 9 10 Dated: December 28, 2021 11 ______________/s/_____________ 12 ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28