(PC) Crowder v. Fox ( 2019 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TRISTAIN CROWDER, also known as No. 2:17-CV-1657-TLN-DMC Candice Crowder, 12 Plaintiff, 13 FINDINGS AND RECOMMENDATIONS v. 14 RALPH DIAZ, et al., 15 Defendants. 16 17 18 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 19 42 U.S.C. § 1983. Pending before the Court are Defendants’ motion to dismiss (ECF No. 27) 20 and motion for misjoinder (ECF No. 28). A hearing was held before the undersigned in 21 Redding, California, on June 26, 2019. Felicia Medina, Esq., Jen Orthwein, Esq., Kevin Love 22 Hubbard, Esq., and Daniel H. Galindo, Esq. appeared on behalf of Plaintiff. Janet N. Chen, 23 Esq., appeared on behalf of Defendants. After considering the parties’ arguments, the matters 24 were submitted. 25 /// 26 /// 27 /// 28 /// 1 1 I. PLAINTIFF’S ALLEGATIONS 2 This action proceeds on Plaintiff’s first amended complaint. See ECF No. 17. 3 Plaintiff names the following as Defendants, all of whom, except Defendant Diaz, were 4 employed at the California Medical Facility (“CMF”) at the time of the alleged events: 5 (1) Ralph Diaz, Secretary of California Department of Corrections and Rehabilitation 6 (“CDCR”); (2) Robert W. Fox, prison warden; (3) Christopher Tileston, an associate warden; 7 (4) Felix X. Hopper, an Investigative Services Unit lieutenant; (5) Ronald Hadrava, a 8 lieutenant; (6) S. Cherniss, a lieutenant; (7) C. Santos, a sergeant; (8) Fabienne Farmer, the 9 library program principal; (9) Brandy Ebert, a litigation coordinator; (10) D. Gibbs, a 10 correctional officer and; (11) Does 1-3, correctional officers. 11 Plaintiff is a transgender woman who alleges systemic abuse, indifference, and 12 discrimination at the hands of CDCR personnel. 1 The gravamen of Plaintiff’s complaint arises 13 from her time at CMF. See ECF No. 17, p. 2.2 In September 2016, Plaintiff received death 14 threats from her ex-boyfriend, another inmate at CMF. See id. at 10-11. Plaintiff expressed 15 safety concerns to Defendant Santos, who took no action. See id. at 11. Two days later, 16 Plaintiff was brutally attacked by her ex-boyfriend in the dining hall (“dining hall incident”). 17 See id. Three Doe correctional officers standing in the dining hall failed to intervene. See id. 18 Additionally, Defendant Santos allegedly heard the attack from a nearby hallway and also failed 19 to take action. See id. Following the attack, prison staff escorted Plaintiff to CMF’s emergency 20 room where Defendants Hadrava and Hopper investigated the incident. See id. Defendants 21 Hadrava and Hopper indicated Plaintiff’s actions, particularly her “decision” to identify as a 22 woman, were to blame for the attack. See id. at 12. Plaintiff was treated at Northbay Vaca 23 Valley Hospital where she received 63 stitches and 14 staples to her head. See id. When she 24 returned to CMF, Defendants Hadrava and Santos placed Plaintiff in non-disciplinary solitary 25 confinement for eight days, despite her objections. See id. at 13. Despite being entitled to a 26 review by the Institutional Classification Committee to determine her placement and release 27 1 The parties refer to Plaintiff using female pronouns in their filings, and the Court 28 does the same. 2 Page number references correspond to the court’s electronic filing pagination. 2 1 from administrative segregation, Plaintiff received no such process. See ECF No. 17, p. 13. 2 Plaintiff reported Defendants Santos, Hadrava, Hopper, and Does’ conduct to no 3 avail. See id. at 16-18. These grievances and Plaintiff’s eventual civil suit triggered a cascade 4 of alleged retaliatory actions, including targeted strip searches and false Rules Violation 5 Reports (“RVRs”) by Defendants Cherniss and Gibbs. See id. Additionally, Defendant Ebert 6 knew of Plaintiff’s civil complaint and reported her for disruptive behavior during one of 7 Plaintiff’s meetings with her attorneys. See id. at 18. Defendant Ebert also threatened to ban 8 Plaintiff’s attorneys. See id. Plaintiff alleges these actions were directed and sanctioned by 9 Defendants Tileston and Fox to transfer her and retaliate against her for filing grievances. See 10 id. at 18-21. As a result of the alleged retaliatory RVRs, prison officials increased Plaintiff’s 11 classification level, denied her a parole hearing, and transferred her to another facility where 12 she was placed in the same yard as the ex-boyfriend who attacked her in 2016. 3 See id. at 20. 13 At the time of the hearing, Plaintiff resided at another facility but has since been transferred 14 back to CMF. See ECF No. 35. 15 While at CMF, Defendant Farmer refused to hire Plaintiff and removed her from 16 educational courses because of Plaintiff’s transgender status. See ECF 17, p. 15-16. Plaintiff 17 alleges prison staff have misgendered transgender inmates 4 and called them “faggots” and 18 “abominations.” See id. at 14-15. The complaint alleges this transphobic culture starts with 19 Defendant Fox and trickles down. See id. at 16. To support her claim of systemic transphobia, 20 Plaintiff provides factual allegations of official misconduct that occurred at other CDCR 21 prisons. See id. at 8-10. Finally, Plaintiff alleges many of her claims stem from Defendants 22 Diaz, Fox, and Tileston’s failure to implement housing and screening standards under the 23 /// 24 /// 25 /// 26 3 Plaintiff’s ex-boyfriend was transferred to another prison sometime after the 27 dining hall incident. 4 Plaintiff alleges CMF staff actively refused to use gender-affirming pronouns for 28 transgender prisoners. 3 1 Prison Rape Elimination Act (“PREA”),5 32 U.S.C. § 30302, designed to protect LGBTQI 6 2 inmates. See ECF No. 17, p. 21-25. 3 From these allegations Plaintiff asserts the following four claims: 4 1. Defendants Santos and Does 1-3 were deliberately indifferent to Plaintiff’s safety by failing to take her concerns seriously 5 and failing to intervene when an inmate brutally attacked her in the dining hall; 6 2. Defendants Diaz, Fox, Tileston, Hopper, Hadrava, Santos, 7 Gibbs, Farmer, and Does 1-3 violated Plaintiff’s right to equal protection by discriminating against her because she is transgender; 8 3. Defendants Diaz, Fox, Hadrava, and Santos violated 9 Plaintiff’s right to due process by failing to adopt LGBTQI standards under PREA and failing to comply with CDCR’s Department Operations 10 Manual regulations; and 11 4. Defendants Fox, Tileston, Cherniss, Ebert, and Gibbs violated Plaintiff’s First Amendment rights by retaliating against her for 12 filing grievances and a civil suit. 13 14 II. DISCUSSION – MOTION TO DISMISS 15 A. Applicable Legal Standard 16 In considering a motion to dismiss, the court must accept all allegations of material 17 fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The court must 18 also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 19 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 20 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or 21 doubts must also be resolved in the plaintiff’s favor. See Jenkins v. McKeithen, 395 U.S. 411, 22 5 Congress unanimously passed the Prison Rape Elimination Act in 2003. See 32 23 U.S.C. § 30302. PREA collected data on sexual assault in prison and found sexual abuse is rampant in prisons today. Transgender and gender non-conforming individuals are at an even 24 greater risk of being victims of sexual abuse. In 2012, the U.S. Department of Justice issued PREA standards for prisons. See CFR §§ 115.41-43. These standards were later strengthened and 25 amended in 2016. See Justice for All Reauthorization Act of 2016, H.R. 2577, 114th Cong. § 7 (2016). PREA is not mandatory but incentivizes compliance through grants under the Spending 26 Clause of Article I. See id. Courts have generally held PREA gives prisoners no private right of action. See, e.g., Peralta v. Swetella, 2018 WL 6334723 (E.D. Cal. Dec. 5, 2018); Faz v. N. 27 Kern State Prison, 2011 WL 4565918 (E.D. Cal. Sep. 28, 2011); Inscoe v. Yates, 2009 WL 3617810 (E.D. Cal. Oct. 27, 2009). 6 28 LGBTQI stands for lesbian, gay, bisexual, transgender, queer, and intersex individuals. 4 1 421 (1969). However, legally conclusory statements, not supported by actual factual allegations, 2 need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). In addition, pro se 3 pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v. 4 Kerner, 404 U.S. 519, 520 (1972). 5 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement 6 of the claim showing that the pleader is entitled to relief” in order to “give the defendant fair 7 notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp v. Twombly, 8 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order 9 to survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must contain 10 more than “a formulaic recitation of the elements of a cause of action;” it must contain factual 11 allegations sufficient “to raise a right to relief above the speculative level.” Id. at 555-56. The 12 complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 13 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the 14 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 15 Iqbal, 129 S. Ct. at 1949. “The plausibility standard is not akin to a ‘probability requirement,’ but 16 it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting 17 Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a 18 defendant’s liability, it ‘stops short of the line between possibility and plausibility for entitlement 19 to relief.” Id. (quoting Twombly, 550 U.S. at 557). 20 In deciding a Rule 12(b)(6) motion, the court generally may not consider materials 21 outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); 22 Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1) 23 documents whose contents are alleged in or attached to the complaint and whose authenticity no 24 party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question, 25 and upon which the complaint necessarily relies, but which are not attached to the complaint, see 26 Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials 27 of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 28 1994). 5 1 Finally, leave to amend must be granted “[u]nless it is absolutely clear that no 2 amendment can cure the defects.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per 3 curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc). 4 B. Analysis 5 Defendants move to dismiss Plaintiff’s first amended complaint on the following 6 grounds: (1) Plaintiff fails to meet the pleading standards of Federal Rule of Civil Procedure 8; 7 (2) Plaintiff has failed to exhaust her administrative remedies for her Eighth Amendment claim; 8 (3) Plaintiff fails to state a claim for relief under the First, Eighth, or Fourteenth Amendments; 9 (4) Defendants are immune from suit; (5) Plaintiff’s claims for injunctive relief are moot; and 10 (6) Plaintiff lacks standing under PREA. For the reasons discussed below, Defendants’ motion to 11 dismiss should be granted in part and denied in part and Plaintiff should be granted leave to 12 amend. 13 1. Rule 8 14 Federal Rules of Civil Procedure require that complaints contain a “. . . short and 15 plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 16 8(a)(2). This means that claims must be stated simply, concisely, and directly. See McHenry v. 17 Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are 18 satisfied if the complaint gives the defendant fair notice of the plaintiff’s claim and the grounds 19 upon which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because the 20 plaintiff must allege with at least some degree of particularity overt acts by specific defendants 21 which support the claims, vague and conclusory allegations fail to satisfy this standard. 22 Additionally, it is impossible for the court to conduct the screening required by law when the 23 allegations are vague and conclusory. The Ninth Circuit has held that an overly detailed 24 complaint is valid if it is “organized, [and is] divided into a description of the parties, a 25 chronological factual background, and a presentation of enumerated legal claims, each of 26 which lists the liable defendants and the legal basis therefor.” Heams v. San Bernadino Police 27 Dept., 530 F.3d 1124, 1132 (9th Cir. 2008). 28 /// 6 1 Here, Defendants argue it is difficult to decipher what claims Plaintiff raises 2 against which Defendants among the thirty-one pages of “legal arguments, citations, and 3 irrelevant facts.” ECF No. 27, p. 14-15. Specifically, Defendants take issue with portions of 4 the complaint referencing Plaintiff’s abuse at other prisons. See id. at 15. 5 These arguments are unconvincing. The length of Plaintiff’s first amended 6 complaint is not, without more, a valid basis for dismissal. See Heams, 530 F.3d at 1131 7 (“[V]erbosity or length is not by itself a basis for dismissing a complaint based on Rule 8(a)”). 8 As to the level of detail, the Court finds the first amended complaint follows a logical order and 9 clearly enumerates the claims and Defendants against whom Plaintiff attaches liability. The 10 Court also finds relevance in Plaintiff’s allegations regarding her experiences at other CDCR 11 prisons because these facts relate to her claim of systematic discrimination throughout the 12 prison system and her prayer for injunctive relief. For these reasons, the first amended 13 complaint satisfies Rule 8. 14 2. Exhaustion 15 Prisoners seeking relief under § 1983 must exhaust all available administrative 16 remedies prior to bringing suit. See 42 U.S.C. § 1997e(a). This requirement is mandatory 17 regardless of the relief sought. See Booth v. Churner, 532 U.S. 731, 741 (2001) (overruling 18 Rumbles v. Hill, 182 F.3d 1064 (9th Cir. 1999)). Because exhaustion must precede the filing of 19 the complaint, compliance with § 1997e(a) is not achieved by exhausting administrative 20 remedies while the lawsuit is pending. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 21 2002). 22 The Supreme Court addressed the exhaustion requirement in Jones v. Bock, 549 23 U.S. 199 (2007), and held: (1) prisoners are not required to specially plead or demonstrate 24 exhaustion in the complaint because lack of exhaustion is an affirmative defense which must be 25 pleaded and proved by the defendants; (2) an individual named as a defendant does not 26 necessarily need to be named in the grievance process for exhaustion to be considered adequate 27 because the applicable procedural rules that a prisoner must follow are defined by the particular 28 grievance process, not by the PLRA; and (3) the PLRA does not require dismissal of the entire 7 1 complaint if only some, but not all, claims are unexhausted. The defendant bears the burden of 2 showing non-exhaustion in the first instance. See Albino v. Baca, 697 F.3d 1023 (9th Cir. 3 2012). If met, the plaintiff then bears the burden of showing that the grievance process was not 4 available, for example, because it was thwarted. See id. The Supreme Court also held in 5 Woodford v. Ngo that, to exhaust administrative remedies, the prisoner must comply with all of 6 the prison system’s procedural rules so that the agency addresses the issues on the merits. 548 7 U.S. 81, 89-96 (2006). Thus, exhaustion requires compliance with “deadlines and other critical 8 procedural rules.” Id. at 90. Partial compliance is not enough. See id. 9 A prison inmate in California satisfies the administrative exhaustion requirement 10 by following the procedures set forth in §§ 3084.1-3084.8 of Title 15 of the California Code of 11 Regulations. In California, inmates “may appeal any policy, decision, action, condition, or 12 omission by the department or its staff that the inmate . . . can demonstrate as having a material 13 adverse effect upon his or her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1(a). 14 The inmate must submit their appeal on the proper form and is required to identify the staff 15 member(s) involved as well as describing their involvement in the issue. See Cal. Code Regs. tit. 16 15, § 3084.2(a). These regulations require the prisoner to proceed through three levels of appeal. 17 See Cal. Code Regs. tit. 15, §§ 3084.1(b), 3084.2, 3084.7. A decision at the third formal level, 18 which is also referred to as the director’s level, is not appealable and concludes a prisoner’s 19 departmental administrative remedy. See id. Departmental appeals coordinators may reject a 20 prisoner’s administrative appeal for a number of reasons, including untimeliness, filing excessive 21 appeals, use of improper language, failure to attach supporting documents, and failure to follow 22 proper procedures. See Cal. Code Regs. tit. 15, §§ 3084.6(b). If an appeal is rejected, the inmate 23 is to be provided clear instructions how to cure the defects therein. See Cal. Code Regs. tit. 15, 24 §§ 3084.5(b), 3084.6(a). A rejection, even at the third level, does not satisfy the exhaustion 25 requirement because it leaves the prisoner with available remedies to pursue. See id. § 3084.1(b). 26 /// 27 /// 28 /// 8 1 Challenges to a plaintiff’s failure to exhaust are more appropriately raised in a 2 motion for summary judgment under Federal Rule of Civil Procedure 56. See Albino v. Baca, 3 747 F.3d 1162, 1166 (9th Cir. 2014). However, defendants may challenge exhaustion in a Rule 4 12(b)(6) motion if the rare circumstance arises where the failure to exhaust is “clear from the 5 face of the complaint.” Id. 6 Here, Defendants raise three arguments related to exhaustion. First, Defendants 7 contend the face of Plaintiff’s original complaint demonstrates a failure to exhaust because 8 Plaintiff did not explicitly allege that she resubmitted her appeal after it was rejected at the third 9 level. Second, Defendants argue Plaintiff failed to exhaust because she did not identify 10 Defendant Santos in her grievance relating to the dining hall incident. Third, Defendants contend 11 Plaintiff’s allegation that her appeal was improperly rejected is misleading. The Court is 12 unpersuaded as to any of these contentions. 13 Defendants’ arguments rely heavily on Plaintiff’s original complaint. The Court, 14 however, dismissed the original complaint with leave to amend. See ECF No. 11, p. 7. Plaintiff’s 15 first amended complaint, now before the Court, supersedes her original complaint. See Ferdik v. 16 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Therefore, Defendants cannot cite deficiencies 17 from Plaintiff’s original complaint in support of their motion to dismiss the first amended 18 complaint. Defendants’ arguments also fail because Plaintiff alleges in the first amended 19 complaint that she exhausted her administrative remedies. In pointing out Plaintiff’s failure to 20 actively plead that she resubmitted her final appeal, Defendants have misconstrued the exhaustion 21 requirement, and inappropriately shifted their burden to establish an affirmative defense to 22 Plaintiff. Exhaustion is not a jurisdictional requirement for bringing an action. See Rumbles, 23 182 F.3d at 1067-68, overruled on other grounds by Booth, 532 U.S. 731. It is sufficient that 24 Plaintiff has alleged she exhausted available administrative remedies. 25 Because Plaintiff alleges to have exhausted her remedies, accepting either of 26 Defendants’ remaining arguments would require the Court to consider extrinsic evidence. In 27 particular, Defendants ask the court to make a factual determination – whether plaintiff 28 resubmitted her grievance. Doing so would be improper at this stage of the pleadings. That 9 1 Defendants have failed to demonstrate Plaintiff’s failure to exhaust is evident from the face of her 2 first amended complaint. To the extent Defendants contend facts not apparent on the face of the 3 first amended complaint demonstrate otherwise, such contention is more appropriately raised in 4 the context of a motion for summary judgment such that the Court may consider extrinsic 5 evidence. 6 3. Failure to State a Claim 7 Defendants argue Plaintiff’s first amended complaint fails to state a claim under 8 the First, Eighth, or Fourteenth Amendments.7 9 a. Eighth Amendment Claims 10 The treatment a prisoner receives in prison and the conditions under which the 11 prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel 12 and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan, 13 511 U.S. 825, 832 (1994). The Eighth Amendment “. . . embodies broad and idealistic concepts 14 of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102 15 (1976). Nonetheless, prison officials must provide prisoners with “food, clothing, shelter, 16 sanitation, medical care, and personal safety.” Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th 17 Cir. 1986). 18 Under these principles, prison officials have a duty to take reasonable steps to 19 protect inmates from physical abuse. See Hoptowit v. Ray, 682 F.2d 1237, 1250-51 (9th Cir. 20 1982); Farmer, 511 U.S. at 833. Liability exists only when two requirements are met: (1) 21 objectively, the prisoner was incarcerated under conditions presenting a substantial risk of serious 22 harm; and (2) subjectively, prison officials knew of and disregarded the risk. See Farmer, 511 23 U.S. at 837. The very obviousness of the risk may suffice to establish the knowledge element. 24 See Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995). Prison officials are not liable, 25 however, if evidence is presented that they lacked knowledge of a safety risk. See Farmer, 511 26 U.S. at 844. The knowledge element does not require that the plaintiff prove that prison officials 27 7 28 Plaintiff raises Fourteenth Amendment due process and equal protection claims. Each is discussed separately below. 10 1 know for a certainty that the inmate’s safety is in danger, but it requires proof of more than a 2 mere suspicion of danger. See Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). Finally, the 3 plaintiff must show that prison officials disregarded a risk. Thus, where prison officials actually 4 knew of a substantial risk, they are not liable if they took reasonable steps to respond to the risk, 5 even if harm ultimately was not averted. See Farmer, 511 U.S. at 844. 6 Here, Plaintiff alleges Defendant Santos knew of the threat made by Plaintiff’s ex- 7 boyfriend and failed to take reasonable action. See ECF No. 17, p. 11. This led to the bodily 8 harm Plaintiff suffered in the dining hall incident. See id. Furthermore, Plaintiff argues 9 Defendant Santos heard the assault and failed to intervene, resulting in harm to Plaintiff. See id. 10 Defendants argue Plaintiff fails to adequately allege Defendant Santos knew of the risk facing 11 Plaintiff or that he disregarded it. See ECF No. 27, p. 17-18. The Court does not agree, and finds 12 Plaintiff adequately states a cognizable Eighth Amendment claim against Defendant Santos. 13 Turning first to Defendant Santos’s failure to take Plaintiff’s safety concerns 14 seriously, Plaintiff sufficiently alleges both the objective and subjective requirements of a 15 deliberate indifference claim. As a transgender woman, Plaintiff objectively faced elevated risks 16 of sexual and physical violence. See ECF No. 17, p. 3, 21. Given this vulnerability, Plaintiff’s 17 concerns over her ex-boyfriend surpass the point of speculative harm. Because Plaintiff 18 communicated these concerns and her turbulent history with her ex-boyfriend to Defendant 19 Santos, the first amended complaint sufficiently alleges he was aware of these risks and failed to 20 take any action.8 21 /// 22 /// 23 /// 24 8 Defendants argue Defendant Santos did not have knowledge of Plaintiff’s 25 transgender status. This argument is unconvincing for two reasons. First, the first amended complaint alleges Plaintiff identifies as transgender and presents as a woman and Plaintiff’s status 26 as transgender is not a disputed issue in this case. Second, Plaintiff’s claim would still have merit even if she were not transgender because she expressed a legitimate concern for her safety that 27 was subsequently ignored. Defendants further argue Defendant Santos’s intent to file a report indicates he took Plaintiff’s concerns seriously. However, construing any ambiguity in Plaintiff’s 28 favor, the first amended complaint demonstrates Defendant Santos was deliberately indifferent because he ultimately failed to take reasonable precautions. 11 1 Turning next to Defendant Santos’s failure to intervene in the dining hall incident, 2 Defendants assert Plaintiff does not properly allege the subjective prong of her claim because 3 there is no suggestion that Defendant Santos knew Plaintiff, and not one of the many other 4 inmates present in the dining hall at the time, was the victim of the attack. This argument 5 assumes a prison official’s duty to protect an inmate only arises if he knows the exact identity of 6 the person in need. This Court rejects this argument. 7 The first amended complaint sufficiently alleges Defendant Santos heard the 8 commotion from the dining hall and was aware of an objectively obvious need for intervention. 9 In spite of this commotion, Defendant Santos took no action. Courts in this district have held a 10 prison official’s failure to intervene against an attack can support a showing of deliberate 11 indifference. See Keel v. A Hedgpeth, 2009 WL 321333 (E.D. Cal. Feb. 9, 2009) (holding 12 deliberate indifference may be present where the facts show a guard watches an attack, was aware 13 of the risks presented by the attack and then did nothing, fired no shots, and waited for the attack 14 to stop); Elroy v. Cox, 2011 U.S. Dist. LEXIS 69319 (E.D. Cal. June 23, 2011) (denying 15 summary judgment and holding a genuine issue of material fact existed as to whether a 16 correctional officer who witnessed another using excessive force and failed to intervene is 17 deliberately indifferent). While the officials in these cases witnessed an attack, several districts 18 have indicated their willingness to accept sound as an acceptable means of inferring an official’s 19 subjective knowledge. See, e.g., Collins v. Cty. of Kern, 390 F. Supp. 2d 964 (E.D. Cal. 2005) 20 (granting summary judgment against prisoner’s eighth amendment claim because there was no 21 evidence defendant heard or saw the attacks on plaintiff); Drouin v. Contra Costa Cty., 2017 U.S. 22 Dist. LEXIS 50750 (N.D. Cal. Apr. 3, 2017) (granting motion to dismiss because the complaint 23 did not allege defendant had any knowledge of the injury that prompted the cries for help, 24 whether by hearing the bone being broken or because plaintiff informed defendant Rodriguez that 25 her femur was broken). 26 /// 27 /// 28 /// 12 1 As alleged, Plaintiff faced a substantial risk of serious harm during the dining hall 2 incident. Indeed, she suffered brutal injuries at the hands of her attacker. The Court also finds 3 the first amended complaint sufficiently alleges Defendant Santos, through the commotion and 4 his presence nearby, knew of the need for intervention yet took no action. Thus, Plaintiff has 5 stated a cognizable Eighth Amendment claim against Defendant Santos. 6 b. Fourteenth Amendment Due Process Claims 7 The Due Process Clause protects prisoners from being deprived of life, liberty, or 8 property without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to 9 state a claim of deprivation of due process, a plaintiff must allege the existence of a liberty or 10 property interest for which the protection is sought. See Ingraham v. Wright, 430 U.S. 651, 672 11 (1977); Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972). Due process protects against the 12 deprivation of property where there is a legitimate claim of entitlement to the property. See Bd. 13 of Regents, 408 U.S. at 577. Protected property interests are created, and their dimensions are 14 defined, by existing rules that stem from an independent source – such as state law – and which 15 secure certain benefits and support claims of entitlement to those benefits. See id. 16 Liberty interests can arise both from the Constitution and from state law. See 17 Hewitt v. Helms, 459 U.S. 460, 466 (1983); Meachum v. Fano, 427 U.S. 215, 224-27 (1976); 18 Smith v. Sumner, 994 F.2d 1401, 1405 (9th Cir. 1993). In determining whether the Constitution 19 itself protects a liberty interest, the court should consider whether the practice in question “. . . is 20 within the normal limits or range of custody which the conviction has authorized the State to 21 impose.” Wolff, 418 U.S. at 557-58; Smith, 994 F.2d at 1405. Applying this standard, the 22 Supreme Court has concluded that the Constitution itself provides no liberty interest in good-time 23 credits, see Wolff, 418 U.S. at 557; in remaining in the general population, see Sandin v. Conner, 24 515 U.S. 472, 485-86 (1995); in not losing privileges, see Baxter v. Palmigiano, 425 U.S. 308, 25 323 (1976); in staying at a particular institution, see Meachum, 427 U.S. at 225-27; or in 26 remaining in a prison in a particular state, see Olim v. Wakinekona, 461 U.S. 238, 245-47 (1983). 27 /// 28 /// 13 1 In determining whether state law confers a liberty interest, the Supreme Court has 2 adopted an approach in which the existence of a liberty interest is determined by focusing on the 3 nature of the deprivation. See Sandin v. Connor, 515 U.S. 472, 481-84 (1995). In doing so, the 4 Court has held that state law creates a liberty interest deserving of protection only where the 5 deprivation in question: (1) restrains the inmate’s freedom in a manner not expected from the 6 sentence; and (2) “imposes atypical and significant hardship on the inmate in relation to the 7 ordinary incidents of prison life.” Id. at 483-84. Prisoners in California have a liberty interest in 8 the procedures used in prison disciplinary hearings where a successful claim would not 9 necessarily shorten the prisoner’s sentence. See Ramirez v. Galaza, 334 F.3d 850, 853, 859 (9th 10 Cir. 2003) (concluding that a due process challenge to a prison disciplinary hearing which did not 11 result in the loss of good-time credits was cognizable under § 1983); see also Wilkinson v. 12 Dotson, 544 U.S. 74, 82 (2005) (concluding that claims which did not seek earlier or immediate 13 release from prison were cognizable under § 1983). 14 i. Defendants Diaz and Fox 15 Plaintiff argues Defendants Diaz and Fox, by their failure to implement certain 16 PREA standards aimed at protecting LGBTQI inmates from physical and sexual violence, 17 violated Plaintiff’s due process rights by negatively impacting her right to be free from cruel and 18 unusual punishment. See ECF No. 30, p. 25. Plaintiff further contends she experienced an 19 atypical and significant hardship from “disparate processes, policies, practices, or conditions that 20 make [her] more vulnerable to sexual and physical assault; disparate housing; disparate 21 discipline; placement in solitary confinement; reduced educational and work programming; and 22 longer sentences.” See id. 23 Defendants argue Plaintiff has not clearly asserted a liberty interest arising from 24 either the Constitution or state law. To the extent Plaintiff alleges a liberty interest in certain 25 housing options, the ability to work, and educational programming, Defendants contend Plaintiff 26 raises no valid liberty interests. The Court agrees. See Sandin, 515 U.S. at 485-68 (holding 27 prisoners do not have a liberty interest in remaining in general population); Walker v. Gomez, 28 370 F.3d 969, 973 (9th Cir. 2004) (reasoning the Due Process Clause of the Fourteenth 14 1 Amendment does not create a liberty interest in prison employment); Hernandez v. Johnston, 833 2 F.2d 1316, 1319 (9th Cir. 1987) (stating prisoners have no liberty interest in accessing 3 educational classes). 4 During the hearing, Plaintiff clarified her intent to allege a procedural due process 5 claim arising from the procedures outlined in PREA. A procedural due process claim, however, 6 still requires an underlying protected liberty interest, which the Court is unable to identify. See 7 Ingraham v. Wright, 430 U.S. 651, 672-73 (1977); Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 8 2003). Plaintiff would have this Court hold that PREA creates a protected liberty interest. This 9 Court, however, is not aware of any authority supporting this argument. While Plaintiff alleges 10 PREA is “explicit about the liberty interest the procedures it sets forth are designed to protect,” 11 PREA is a federal law and does not mandate compliance from state prisons like CMF. Indeed, 12 compliance with PREA is enforced through a grant incentive. See Justice for All Reauthorization 13 Act of 2016, H.R. 2577, 114th Cong. § 7 (2016). To the extent states elect to forego the 14 incentives, PREA is advisory and not mandatory. 15 Additionally, Defendants argue Plaintiff’s allegation that the failure to adopt 16 certain standards under PREA violated her due process right to be free from cruel and unusual 17 punishment possibly states an Eighth Amendment claim, not a due process claim. See ECF No. 18 32, p. 9. The Court agrees. Although a single harm can implicate more than one constitutional 19 right, where a constitutional claim is covered by a specific constitutional provision, the court must 20 analyze the claim under the standard appropriate to that specific provision, not under the broad 21 rubric of substantive due process. See County of Sacramento v. Lewis, 523 U.S. 833, 843 (1998); 22 see also Graham v. Connor, 490 U.S. 386, 395 (1989) (“Where a particular Amendment provides 23 an explicit textual source of constitutional protection against a particular sort of government 24 behavior, that Amendment, not the more generalized notion of substantive due process, must be 25 the guide for analyzing these claims.”). Here, Plaintiff insufficiently states a due process claim 26 because the failure to enact policies which would protect transgender inmates from violence at the 27 hands of other inmates is the exact sort of behavior against which the Eighth Amendment 28 provides a source of protection. See Whitley v. Albers, 475 U.S. 312, 327 (1986) (holding the 15 1 Due Process Clause affords a plaintiff asserting an excessive force claim no greater protection 2 than does the Cruel and Unusual Punishments Clause); Wolff v. Hood, 242 F. Supp. 2d 811, 819 3 (D. Or. 2002) (holding plaintiff cannot assert a Fourteenth Amendment claim against officials for 4 failing to protect him from other inmates). Therefore, Plaintiff cannot assert a due process claim 5 based on facts which implicate the Eighth Amendment. 6 Similarly, Defendants argue Plaintiff’s allegations of disparate treatment reads 7 more like an equal protection claim than a due process claim. See ECF No. 32, p. 9. To the 8 extent she wishes to allege the failure to adopt certain PREA standards led to disparate treatment 9 at CMF, Plaintiff’s claim is subsumed by her equal protection claims against Defendants Diaz and 10 Fox, discussed below. 11 In the alternative, Defendants argue Plaintiff’s claim regarding her denied parole 12 hearing and longer sentence are barred under Heck v. Humphrey because she has not alleged the 13 outcome of any disciplinary hearing has been invalidated, expunged, or reversed by the grant of a 14 writ of habeas corpus. See 512 U.S. 477, 489 (1994). However, Defendants misapply Heck. A 15 plaintiff’s claim under § 1983 is only barred under Heck if a favorable judgment would 16 “necessarily imply the invalidity of his conviction or sentence.” Id. at 486. Here, Plaintiff’s 17 claim does not necessarily imply the invalidity of her conviction. For example, Plaintiff’s first 18 amended complaint makes no mention of good time credits or loss thereof. The parties’ 19 arguments both inappropriately assume the lack of parole hearing necessarily resulted in a longer 20 sentence. 21 Regardless, Plaintiff still does not raise a protected liberty interest with respect to 22 parole hearings. The Supreme Court held there is no constitutional or inherent right of a 23 convicted person to be released before the end of a valid sentence. See Greenholtz v. Inmates of 24 Neb. Penal & Corr. Complex, 442 U.S. 1 (1979). The Ninth Circuit has restrictively interpreted 25 Greenholtz and found state law creates a liberty interest in the granting of parole only where such 26 law mandates release unless certain clearly-defined exceptions apply. See Baumann v. Arizona 27 Dep’t of Corrections, 754 F.2d 841, 844 (9th Cir. 1985). However, the United States Supreme 28 Court stated that, in the parole context, a prisoner has received adequate process when he has 16 1 been given an opportunity to be heard and was provided a statement of the reasons why parole 2 was denied. See Swarthout v. Cooke, 562 U.S. 216, 220 (2011). To the extent Plaintiff claims 3 her denied parole hearing obstructed her due process rights, she fails to allege she was refused an 4 opportunity to be heard or a statement regarding the basis of the denial. 5 Plaintiff’s due process claims should be dismissed with leave to amend to plainly 6 allege the existence of a valid liberty interest created by the Constitution or state law. 7 ii. Defendants Hadrava and Santos 8 Plaintiff alleges Defendants Hadrava and Santos violated her due process rights by 9 placing her in non-disciplinary solitary confinement in violation of PREA. See ECF No. 17, p. 10 13. According to Plaintiff, during her time in solitary confinement she suffered an “atypical and 11 significant hardship” from medical complications arising from the injuries she sustained during 12 the dining hall incident. See ECF No. 30, p. 29. In her opposition to Defendants’ motion, 13 Plaintiff also argues Defendant Hadrava and Santos’s actions violated procedures in the CDCR 14 Department Operations Manual by not affording her an opportunity for review by the Institutional 15 Classification Committee for her placement or release from solitary confinement. See id. at 28- 16 29. 17 Defendants contend Plaintiff has failed to sufficiently allege an atypical and 18 significant hardship because her placement in solitary confinement lasted for only eight days and 19 was for her safety. See ECF No. 27, p. 21-23. Defendants also contend Plaintiff has not 20 identified an underlying liberty interest for her procedural due process claim. See id. at 21. 21 According to Defendants, while the Department Operations Manual grants review, inmates are 22 only entitled to this procedure after ten days. Because Plaintiff was released after eight days, any 23 due process right afforded by the Department Operations Manual was neither implicated nor 24 violated. 25 To the extent Plaintiff intends to allege a liberty interest to be free from solitary 26 confinement, she fails to state a cognizable claim. In Sandin, the Supreme Court discussed the 27 ability of a state law to confer a liberty interest and held that disciplinary solitary confinement 28 invokes certain due process rights. See 515 U.S. at 485-86. Sandin, however, is distinguished 17 1 from Plaintiff’s case. Here, Plaintiff’s does not identify any relevant state law nor does she allege 2 placement in solitary confinement for disciplinary reasons. See ECF No. 17, p. 13. Thus, 3 Plaintiff has neither identified the source of her liberty interest nor established that protective 4 solitary confinement invokes procedural due process rights. 5 The Court also agrees that Plaintiff fails to show an atypical and significant 6 hardship under the Sandin factors. In determining whether or not conditions impose an atypical 7 and significant hardship, the Ninth Circuit held: 8 Three guideposts cited in Sandin’s analysis, however, provide a helpful framework: 1) whether the challenged condition “mirrored those 9 conditions imposed upon inmates in administrative segregation and protective custody,” and thus comported with the prison’s discretionary 10 authority; 2) the duration of the condition, and the degree of restraint imposed; and 3) whether the state’s action will invariably affect the 11 duration of the prisoner’s sentence. Sandin, 515 U.S. at 486-87; Keenan, 83 F.3d at 1089. 12 Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003). 13 14 Here, Plaintiff alleges she spent eight days in solitary confinement during which time she was 15 unable to receive medical treatment for her injuries. Plaintiff does not establish how this 16 invariably impacted the length of her stay. Plaintiff also does not allege how her treatment 17 differed from that which she would receive in general population. If anything, Plaintiff’s 18 concerns over her access to medical care read like a deliberate indifference claim under the 19 Eighth Amendment. See ECF No. 30, p. 29. For the reasons stated above, she cannot pursue this 20 claim under the Due Process Clause. 21 Plaintiff also cites her inability to access educational and work programming while 22 in segregation, but this does not rise to the level of atypical and significant hardship. See 23 Thompson v. Torres, No. 17-00319 DKW-RLP, 2017 U.S. Dist. LEXIS 121248, at *13 (D. Haw. 24 Aug. 2, 2017) (holding lack of programs, classes, or social interaction does not meet the atypical 25 and significant standard). 26 /// 27 /// 28 /// 18 1 As to Plaintiff claim that she was entitled to review of her placement in solitary 2 confinement and owed a review of her placement by the Institutional Classification Committee 3 per CDCR’s Department Operations Manual, Defendants argue Plaintiff has not stated a protected 4 liberty interest. See ECF No. 27, p. 21. Furthermore, Defendants argue the Department 5 Operations Manual requires review only after ten days of confinement. See ECF No. 17, p. 24. 6 Here, Plaintiff was released after eight days. To the extent Plaintiff alleges the Department 7 Operations Manual grants a liberty interest, she has not sufficiently alleged it was implicated 8 because she was not housed in solitary confinement for the minimum 10-day period to invoke the 9 procedures outlined in the Department Operations Manual. See ECF No. 30, p. 9. (“An inmate’s 10 placement in temporary segregation shall be reviewed by the Institutional Classification 11 Committee (ICC) within ten days of receipt in the unit.”). 12 c. Fourteenth Amendment Equal Protection Claims 13 The Equal Protection Clause of the Fourteenth Amendment requires every 14 individual to be judged individually and receive equal justice under the law. Plyler v. Doe, 457 15 U.S. 202, 216 n.14 (1982). This has not, however, been held to mean that all individuals must 16 receive equal treatment. The Supreme Court’s tiered framework analyzes equal protection claims 17 based on the type of classification at issue and the requisite level of justification. If a group of 18 individuals is considered a suspect or quasi-suspect class, then the court applies either strict or 19 intermediate scrutiny. Strict scrutiny has been historically reserved for fundamental rights and 20 classifications based on race and national origin. See Loving v. Virginia, 388 U.S. 1, 18 (1967). 21 Intermediate scrutiny, on the other hand, has been applied to sex-based classifications. See 22 United States v. Virginia, 518 U.S. 515, 524 (1996). 23 The Supreme Court employs a four-factor test to determine whether a class 24 qualifies as suspect or quasi-suspect thus meriting heightened scrutiny. Heightened scrutiny is 25 appropriate when the class being discriminated against: (1) has been “historically subjected to 26 discrimination,” (2) has a defining characteristic bearing no “relation to ability to perform or 27 contribute to society,” (3) has “obvious, immutable, or distinguishing characteristics,” and (4) is a 28 “minority or is politically powerless.” Windsor v. United States, 699 F.3d 169, 181 (2d Cir. 2012) 19 1 (listing the factors), aff’d on other grounds, 570 U.S. 744 (2013). 2 Once the court determines heightened scrutiny should apply, the plaintiff must 3 show the defendants acted with an intent or purpose to discriminate against her based on her 4 membership in a suspect or quasi-suspect class. See Barren v. Harrington, 152 F.3d 1193, 1194 5 (9th Cir. 1998). As to transgender individuals, the Supreme Court has not yet determined the 6 appropriate classification and level of scrutiny to apply. The Ninth Circuit first addressed the 7 issue in 1977 in Holloway v. Arthur Anderson & Co., 566 F.2d 659 (9th Cir. 1977). In 8 Holloway, the Ninth Circuit refused to apply heightened scrutiny to transgender discrimination 9 under the Equal Protection Clause because it did not consider transgenders to be a discrete and 10 insular minority possessing immutable characteristics. See 566 F.2d at 663-64. Since 1977, 11 Holloway has been abandoned in many jurisdictions, including the Ninth Circuit. As recognized 12 by the Ninth Circuit, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), overruled Holloway. 13 See Schwenk v. Hartford, 204 F.3d 1187, 1201 (9th Cir. 2000). Other cases have said Holloway 14 is “no longer good law.” Norsworthy v. Beard, 87 F. Supp. 3d 1104, 1118 (N.D. Cal. 2015). 15 Courts have increasing applied the four Windsor factors to find transgender discrimination merits 16 heightened scrutiny. This Court agrees. 17 i. Level of Scrutiny 18 The application of heightened scrutiny based on transgender status is consistent 19 with case law in this circuit. See Karnoski v. Trump, 2018 WL 1784464 (W.D. Wash. Apr. 13, 20 2018) (holding transgender individuals are a suspect class warranting strict scrutiny);9 F.V. v. 21 Barron, 286 F. Supp. 3d 1131, 1145 (D. Idaho 2018) (“[T]ransgender people bear all of the 22 9 On appeal, the Ninth Circuit vacated and remanded the case finding the district 23 court failed give appropriate deference to the President and the Department of Defense concerning a ban on transgender individuals serving in the military. See Karnoski v. Trump, 2019 24 U.S. App. LEXIS 17878, at *30-35 (9th Cir. June 14, 2019) (per curiam). The Ninth Circuit appears to support the lower court’s application of the Windsor factors. The court ultimately held 25 that, with proper military deference afforded, transgender service members require “something more than rational basis but less that strict scrutiny.” See id. at *45. While the district court 26 unequivocally held transgender individuals are “one of the most vulnerable groups in our society,” the Ninth Circuit did not. Rather, the Ninth Circuit seemingly limited its opinion to 27 transgender service members and the level of scrutiny required in the specific context of a transgender military ban. By limiting its holding to this specific context, while also seeming to 28 endorse the Windsor factors, the Ninth Circuit provides limited guidance. The Ninth Circuit has not, however, expressly rejected the application of heightened scrutiny to transgender individuals. 20 1 characteristics of a quasi-suspect class and any rule developed and implemented by IDHW should 2 withstand heightened scrutiny review.”); Norsworthy v. Beard, 87 F. Supp. 3d 1104, 1119 (N.D. 3 Cal. 2015) (holding that discrimination based on transgender status qualifies as a suspect 4 classification because transgender individuals meet the indicia of a suspect or quasi-suspect 5 classification identified by the Supreme Court). As discussed below, analysis of the Windsor 6 factors confirms the appropriateness of heightened scrutiny in this case. 7 (a). History of Discrimination 8 It is generally accepted that transgender individuals face an alarming rate of 9 discrimination, harassment, and violence. See Jaime M. Grant et al., Injustice at Every Turn: A 10 Report of the National Transgender Discrimination Survey, Nat’l Center for Transgender 11 Equality (2011), available at https://www.transequality.org/sites/default/files/docs/resources/ 12 NTDS_ Report.pdf; see also Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 13 F.3d 1034, 1051 (7th Cir. 2017); Karnoski v. Trump, 2018 WL 1784464 (W.D. Wash. Apr. 13, 14 2018); F.V. v. Barron, 286 F. Supp. 3d 1131, 45 (D. Idaho 2018); Adkins v. City of N.Y., 143 F. 15 Supp. 3d 134, 139 (S.D.N.Y. 2015); M.A.B. v. Bd. of Educ., 286 F. Supp. 3d 704, 720 (D. Md. 16 2018); Bd. of Educ. of the Highland Local Sch. Dist. v. U.S. Dep’t of Educ., 208 F.Supp.3d 850, 17 874 (S.D. Ohio 2016); Evancho v. Pine-Richland Sch. Dist., 237 F.Supp.3d 267, 288 (W.D.Pa. 18 2017); Grimm v. Gloucester Cty. Sch. Bd., 302 F. Supp. 3d 730, 749 (E.D. Va. 2018). 19 The most recent and largest study to date on transgender discrimination gathered 20 data from over 27,000 respondents and found the majority of respondents who were out or 21 perceived as transgender while in K–12 experienced some form of mistreatment, including being 22 verbally harassed (54%), physically attacked (24%), and sexually assaulted (13%) because they 23 were transgender. Further, 17% experienced such severe mistreatment that they left school as a 24 result. The Report of the 2015 U.S. Transgender Survey, Nat’l Center for Transgender Equality, 25 at 4 (2015), available at https://transequality.org/sites/default/files/docs/usts/USTS-Full-Report- 26 Dec17.pdf. 27 /// 28 /// 21 1 This discrimination continues into adulthood and in the workplace. One in six 2 (16%) respondents who have been employed reported losing a job because of their gender 3 identity or expression. See id. at 12. Overall, 30% of respondents who were employed in the 4 year prior to the study reported being fired, denied a promotion, or experiencing some form of 5 mistreatment related to their gender identity or expression. See id. at 13. 6 In the prison context, PREA “exposed heightened risk of sexual assault against 7 LGBTQI prisoners and the atypical severity of punishments LGBTQI people face solely for being 8 themselves.” ECF No. 17, p. 4. In prison, transgender inmates are thirteen times more likely to 9 be assaulted than other prisoners. See id. at 3. Indeed, Plaintiff’s treatment while in CDCR 10 facilities mirrors that of other transgender inmates and individuals generally. At CMF Plaintiff 11 has been called a “faggot,” an “abomination,” and told she deserved her attack because of her 12 femininity. See id. at12,14. 13 Not only does this Court recognize the frequency that transgender individuals face 14 discrimination, but it also acknowledges the type of discrimination draws parallels to 15 discrimination based on race or national origin. Despite holdings that transgender discrimination 16 falls within sex-based discrimination under a theory of gender-nonconformity, the above 17 comments directed at Plaintiff reflect the deeper animosity that many hold against transgender 18 individuals.10 That is, transgender persons are hated and discriminated against for their very 19 10 20 Plaintiff argues transgender discrimination is subject to heightened scrutiny because discrimination against transgender individuals is form of discrimination based on gender 21 non-conformity, which is a form of sex-based discrimination. This argument is supported by other courts. Several circuits have applied intermediate or heightened scrutiny to claims by transgender 22 individuals under the Equal Protection Clause and Title VII on the theory that discrimination against transgender individuals is based on their failure to conform to typical gender norms. This 23 form of sex-stereotyping was found unconstitutional by the Supreme Court in Price Waterhouse v. Hopkins,490 U.S. 228 (1989), where a cisgender female successfully brought a Title VII claim 24 after her employers failed to promote her because she was too masculine. Courts have subsequently applied this reasoning to transgender individuals. See, e.g., Schwenk v. Hartford, 25 204 F.3d 1187, 1201-02 (9th Cir. 2000) (holding that transgender plaintiff could state a claim under the Gender Motivated Violence Act when because discrimination for failing to conform to 26 gender norms is a form of gender discrimination); Whitaker v. Kenosha Unified School Dist. No. 1 Bd. of Educ, 858 F.3d 1034, 1051 (7th Cir. 2017) (holding transgender plaintiff could state a 27 claim for discrimination under the equal protection clause because discrimination based on transgender status is form of sex discrimination) ; Smith v. City of Salem, 378 F.3d 566, 575 (6th 28 Cir. 2004) (holding discrimination against transgender individuals is a form of sex discrimination under Title VII). 22 1 being. Here, Defendants’ actions reflect the findings of the Federal Bureau of Investigation’s 2 2017 Hate Crime Statistics which found 90% of hate crimes committed on the basis of gender- 3 identity were motivated by an “anti-transgender bias.” See Hate Crime Statistics 2017, U.S. 4 Department of Justice – Federal Bureau of Investigation, at 4 (2017), available at 5 https://ucr.fbi.gov/hate-crime/2017/topic-pages/victims.pdf. This is compared to only 10% of 6 crimes committed against transgender persons for “anti-gender non-conforming bias.” See id. 7 This data suggests discrimination is leveled against transgender persons for being a discrete class 8 of citizens far more often than for their failure to conform to traditional notions of gender. 9 (b). Contributions to Society 10 In Windsor, the U.S. Court of Appeals for the Second Circuit concluded “the 11 aversion homosexuals experience has nothing to do with aptitude or performance.” Windsor v. 12 United States, 699 F.3d 169, 182-83 (2d Cir. 2012). The same can be said of discrimination 13 leveled at transgender people. This Court is not aware of any data suggesting that transgender 14 persons are less productive members of society simply because they are transgender. 15 (c). Discrete and Immutable Characteristics 16 The Fourteenth Amendment is meant to protect citizens from discrimination based 17 on circumstances beyond their control. See Plyler, 457 U.S. at 216 n.14. Indeed, transgender 18 status is neither chosen or changeable, and at least two district courts have acknowledged the 19 likelihood that gender identity is biologically determined. See Doe v. McConn, 489 F. Supp. 76, 20 78 (S.D. Tex. 1980) (“These findings indicate that the transsexual has not made a choice to be as 21 he is, but rather that the choice has been made for him through many causes preceding and 22 beyond his control”); Schroer v. Billington, 424 F. Supp. 2d 203, 213 n.5 (D.D.C. 2006) 23 (describing androgen insensitivity syndrome, a genetic disorder occurring in approximately 1 out 24 of every 20,000 genetic males where an individual with “male” chromosomes and testes does not 25 respond to the hormones the testes produce and thus typically has a female sexual identity and 26 This Court believes, however, that labeling discrimination against transgender 27 persons as a form of sex-based discrimination does not accurately represent the nature of the discrimination leveled against them. As the Court discusses, transgender persons merit their own 28 suspect classification under Windsor. The first amended complaint addresses this argument in the alternative. See ECF No. 17, p 26. 23 1 appears feminine). 2 Given the discrimination transgender individuals face, it is illogical to assert that a 3 person would actively choose this “lifestyle.” See Hernandez-Montiel v. Immigration & 4 Naturalization Serv., 225 F.3d 1084, 1095 (9th Cir. 2000) (stating a transgender asylum 5 applicant’s female sexual identity “must be fundamental, or [s]he would not have suffered this 6 persecution and would have changed years ago”). Several district courts have already held 7 gender identity to be an immutable characteristic. See, e.g., Norsworthy v. Beard, 87 F. Supp. 3d 8 1104, 1119 n.8 (N.D. Cal. 2015); Evancho v. Pine-Richland Sch. Dist., 237 F. Supp. 3d 267, 288 9 (W.D. Pa. 2017); Bd. of Educ. v. U.S. Dep’t of Educ., 208 F. Supp. 3d 850, 874 (S.D. Ohio 10 2016); Adkins v. City of N.Y., 143 F. Supp. 3d 134, 139 (S.D.N.Y. 2015). Additionally, 11 transgender individuals can be discretely defined based on the disparity between the gender they 12 identify with and the traditional gender associated with their birth sex. 13 (d). Politically Powerless Minority 14 Transgender people are a clear minority. Research estimates transgender 15 individuals make up less than 1% of the population. See Doe v. Trump, 275 F. Supp. 3d 167, 209 16 (D.D.C. 2017) (referencing an amicus party’s estimate that transgender people make up 17 approximately 0.6% of the U.S. adult population); Bd. of Educ, 208 F. Supp. 3d at 18 874 (describing transgender people as “a tiny minority of the population”). 19 As such a small minority, transgender persons are underrepresented and have not 20 gained positions of significant power. To this Court’s knowledge, no acknowledged transgender 21 person has ever held a significant position in Congress or the federal judiciary. See Adkins, 143 22 F. Supp. 3d at 140 (“[T]here is no indication that there have ever been any transgender members 23 of the United States Congress or the federal judiciary.”); M.A.B. v. Bd. of Educ., 286 F. Supp. 3d 24 704, 721 (D. Md. 2018) (“Only two openly transgender candidates have ever been elected; both 25 won seats in a state legislature”). In addition to being underrepresented, transgender people are 26 severely limited in their ability to attract the attention of lawmakers. Federal courts have had to 27 block the federal government and state legislatures from enforcing laws that violated the rights of 28 /// 24 1 transgender individuals. See Stone v. Trump, 280 F. Supp. 3d 747 (D. Md. 2017) (enjoining the 2 enforcement of President Trump’s ban on transgenders in the military because it likely violated 3 their rights under the Equal Protection Clause). 4 Transgender persons also lack political power relative to gay, lesbian, and bisexual 5 individuals. In 2010, for example, Congress repealed the “Don’t Ask Don’t Tell” policy for 6 lesbian, gay, and bisexual people. See Don’t Ask, Don’t Tell Repeal Act of 2010, Pub. L. No. 7 111-321, 124 Stat. 3515 (2010). Today, transgender status is still a basis for denying admission 8 into the armed forces or for discharging current service members. See Karnoski, 2018 WL 9 1784464, at *20-22. 10 ii. Application of Heightened Scrutiny 11 Having concluded that discrimination based on transgender status warrants 12 heightened scrutiny, the question remains whether, under this standard, Plaintiff sufficiently 13 alleges discrimination based on her transgender status. The gravamen of Defendants’ motion to 14 dismiss is that Plaintiff fails to allege that she was treated differently from similarly situated 15 individuals. Without expressly stating a standard of scrutiny, Defendants’ argument presupposes 16 that discrimination against transgender individuals merits a rational basis of review. For the 17 reasons discussed above, this Court cannot agree because heightened scrutiny applies. 18 (a). Defendant Diaz 19 Plaintiff argues Defendant Diaz discriminated against her by failing to enact PREA 20 policies intending to protect LGBTQI inmates from physical and sexual violence but enacted 21 other policies benefitting other vulnerable populations such as prisoners of certain ages or those 22 with mental illnesses. See ECF No. 17, p. 22. Defendants contend Plaintiff fails to allege an 23 equal protection claim because the allegations do not show how similarly situated transgender 24 inmates received disparate treatment. See ECF No. 27, p. 19. Defendants further assert Plaintiff 25 insufficiently connects Defendant Diaz with the policies in place at CMF. See id. While these 26 arguments are unpersuasive, Plaintiff has nonetheless failed to state a cognizable equal protection 27 claim against Defendant Diaz. 28 /// 25 1 Despite Defendants’ contentions, Plaintiff adequately ties Defendant Diaz to the 2 failure to implement PREA policies. Defendant Diaz allegedly has the ultimate authority over the 3 CDCR, including the administration and implementation of policies and procedures. See ECF 4 No. 17, p. 5. Because Plaintiff seeks to enjoin Defendant Diaz to adopt certain PREA policies, he 5 is an appropriate defendant for this claim. See, e.g., Pouncil v. Tilton, 704 F.3d 568, 576 (9th Cir. 6 2012) (holding CDCR Secretary is the proper defendant for claims of injunctive relief from 7 prison regulations because he would be responsible for ensuring injunctive relief would be carried 8 out, notwithstanding his lack of personal involvement in challenged conduct). 9 Plaintiff, however, does not allege Defendant Diaz purposely discriminated against 10 transgender individuals by his failure to enact policies concerning LGBTQI inmates under PREA. 11 Without speaking to the motivation behind this act, Plaintiff appears to assert a disparate impact 12 claim. Allegations of disparate impact, without more, do not adequately support a cognizable 13 Equal Protection violation claim. See Washington v. Davis, 426 U.S. 229, 242 (1976). While 14 Plaintiff need not allege discriminatory purpose entirely motived Defendant Diaz’s actions, 15 Plaintiff must still assert discriminatory intent motivated Defendant Diaz’s decision not to 16 implement certain standards of PREA. See Vill. of Arlington Heights v. Metro. Hous. Dev. 17 Corp., 429 U.S. 252, 265-66 (1977). Plaintiff’s first amended complaint alleges transgender 18 inmates receive fewer protections than other vulnerable inmates without articulating 19 discriminatory motivation behind this disparity. Thus, Plaintiff has insufficiently stated her claim 20 against Defendant Diaz. 11 21 /// 22 /// 23 /// 24 25 11 The Court rejects Defendants’ suggestion that an equal protection analysis compares the treatment persons within the same class receive. The proper standard is whether 26 transgender inmates receive the same treatment as other inmates in general, not other transgender inmates in particular. Accepting Defendants’ formulation would lead to the absurd result that no 27 specific class of people could ever experience discrimination as long as all individuals in that class are treated the same. In other words, Defendants would have the court hold that, so long as 28 all transgender inmates are treated the same albeit differently than cisgender inmates, it would be acceptable to treat them differently. The Court declines to so hold. 26 1 (b). Defendants Fox and Tileston 2 Plaintiff alleges Defendants Fox and Tileston failed to implement LGBTQI 3 standards and permitted staff to discriminate against Plaintiff and other LGBTQI inmates. See id. 4 at 26. Plaintiff also contends Defendants Fox and Tileston did not consider Plaintiff’s PREA- 5 compliant Transgender Biannual Assessment or her perception of safety when selecting her 6 housing, as required by PREA. See id. Plaintiff’ also argues Defendants Fox and Tileston 7 orchestrated her transfer out of CMF and failed to intervene in their subordinates’ discrimination. 8 See ECF No. 32, p. 11. Defendants argue Plaintiff fails to show invidious intent including how 9 Defendants Fox or Tileston personally participated in discriminatory conduct or knew of 10 Plaintiff’s grievances. See ECF No. 27, p. 12. To the extent Plaintiff asserts supervisory liability, 11 Defendants argue she fails to show their participation in the alleged unconstitutional violations. 12 See id. 13 Like Plaintiff’s equal protection claim against Defendant Diaz, this Court finds 14 Plaintiff has failed to articulate a discriminatory motive behind any of Defendant Fox or 15 Tileston’s alleged unconstitutional actions. While Plaintiff alleges Defendants Fox and Tileston 16 implemented and promulgated the prison’s policies, see ECF No. 17, p. 5, and knew of her 17 grievances, see id. at 14, she has not adequately alleged invidious intent. Thus, Plaintiff fails to 18 state a cognizable equal protection claim against these Defendants. 19 (c). Defendants Hopper and Hadrava 20 Plaintiff alleges that Defendants Hopper and Hadrava discriminated against 21 Plaintiff during their investigation of the dining hall incident by (1) insinuating that Plaintiff made 22 herself a target, and (2) by the contention that Plaintiff’s choice to be transgenderand her gender 23 identity, specifically her femininity, caused and warranted the assault, See ECF No. 17, p. 12. 24 Defendants again argue Plaintiff has failed to show how Defendants treated her 25 differently from other inmates. However, Plaintiff need only show her status as a transgender 26 individual was the basis of Defendants’ discriminatory treatment. Plaintiff has met this burden at 27 this stage. The first amended complaint sufficiently alleges Plaintiff’s transgender status was the 28 driving force behind Defendants Hopper and Hadrava’s callous investigation, which they would 27 1 have conducted differently had Plaintiff not been transgender. These allegations also sufficiently 2 establish Defendants Hopper and Hadrava acted with discriminatory intent based on Plaintiff’s 3 status as a transgender individual. 4 (d). Defendant Santos 5 Plaintiff claims her transgender status motivated Defendant Santos’s deliberate 6 indifference to her safety concerns and the dining hall attack. See id. at 27. Defendants argue 7 Plaintiff has insufficiently pled her claim and has failed to establish Defendant Santos even knew 8 Plaintiff was transgender. See ECF No. 27, p. 19; ECF No. 32, p. 12. Without addressing 9 Defendants’ latter argument,12 this Court finds Plaintiff’s claim does not establish discriminatory 10 intent. 11 While Plaintiff’s allegations sufficiently support an Eighth Amendment claim, she 12 has not alleged her transgender status was the basis of Defendant Santos’s inaction in either 13 instance. This is especially so with regards to the dining hall incident. Defendant Santos stood in 14 a nearby hallway outside the dining hall and is not alleged to have known the identity of the 15 attacked inmate. Without this knowledge, the first amended complaint does not adequately 16 support that Defendant Santos’s actions were motived by Plaintiff’s membership to a suspect 17 classification. During the hearing, Plaintiff appeared to argue Defendant Santos knew Plaintiff’s 18 identity based on his interactions with her two days prior. That is, based on her safety concerns 19 regarding her ex-boyfriend, he knew or should have known that she was the dining hall victim. 20 This Court finds this implausible based on the facts alleged. Plaintiff should be given leave to 21 amend. 22 (e). Defendants Farmer and Gibbs 23 The first amended complaint asserts Defendant Farmer intentionally discriminated 24 against Plaintiff by refusing to hire her in the library simply because of her transgender status. 25 See ECF No. 17, p. 15. Defendant Farmer also removed Plaintiff from college courses because 26 having a transgender student was “not a good look for” CMF. See id. at 16. As alleged, Plaintiff 27 12 Plaintiff’s transgender status is not disputed here. The first amended complaint 28 alleges she identifies as a woman. While plaintiff ultimately fails to state a claim, defendant Santos’s supposed ignorance of plaintiff’s gender identity is not a valid basis for dismissal. 28 1 states a cognizable equal protection claim against Defendant Farmer. 2 Plaintiff also states a cognizable claim against Defendant Gibbs, who made 3 transphobic comments and publicly strip-searched Plaintiff in front of other inmates, despite her 4 request to have a female officer perform the searches. See id. at 15, 17. Defendants argue these 5 events do not demonstrate discriminatory intent and fail to distinguish Plaintiff’s treatment from 6 the treatment of others. See ECF No. 27, p. 20. Furthermore, Defendants assert verbal 7 harassment is insufficient to constitute a claim under § 1983. See ECF No. 32, p. 12. 8 The first amended complaint shows Defendant Gibbs harbored animosity towards 9 Plaintiff based on her transgender status. For example, Defendant Gibbs stated he wished he had 10 been present for the dining hall incident, which he said Plaintiff deserved because she was a 11 “faggot.” ECF No. 17, p. 17. Although derogatory remarks alone are inadequate to support 12 claims under § 1983, see Freeman v. Arpaio, 125 F.3d 732 (9th Cir. 1997) (holding abusive 13 language directed at plaintiff’s religious and ethnic background does not support a § 1983 claim); 14 Clinton v. Geovenetti, 2013 WL 12377980 (C.D. Cal. June 10, 2013) (holding verbal abuse and 15 derogatory remarks concerning plaintiff’s homosexuality alone are insufficient to support a 16 violation of the Equal Protection Clause for discrimination), here they support an inference of 17 transgender animus. Based on these allegations, this Court may plausibly infer the targeted strip 18 searches were based on Defendant Gibbs’s animosity towards transgender inmates in general and 19 Plaintiff in particular. 20 d. First Amendment Retaliation Claims 21 In order to state a claim under 42 U.S.C. § 1983 for retaliation, the prisoner must 22 establish that he was retaliated against for exercising a constitutional right, and that the retaliatory 23 action was not related to a legitimate penological purpose, such as preserving institutional 24 security. See Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam). In meeting 25 this standard, the prisoner must demonstrate a specific link between the alleged retaliation and the 26 exercise of a constitutional right. See Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995); 27 Valandingham v. Bojorquez, 866 F.2d 1135, 1138-39 (9th Cir. 1989). The prisoner must also 28 show that the exercise of First Amendment rights was chilled, though not necessarily silenced, by 29 1 the alleged retaliatory conduct. See Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000), see also 2 Rhodes v. Robinson, 408 F.3d 559, 569 (9th Cir. 2005). Thus, the prisoner plaintiff must 3 establish the following in order to state a claim for retaliation: (1) prison officials took adverse 4 action against the inmate; (2) the adverse action was taken because the inmate engaged in 5 protected conduct; (3) the adverse action chilled the inmate’s First Amendment rights; and (4) the 6 adverse action did not serve a legitimate penological purpose. See Rhodes, 408 F.3d at 568. 7 As to the chilling effect, the Ninth Circuit in Rhodes observed: “If Rhodes had not 8 alleged a chilling effect, perhaps his allegations that he suffered harm would suffice, since harm 9 that is more than minimal will almost always have a chilling effect.” Id. at n.11. By way of 10 example, the court cited Pratt in which a retaliation claim had been decided without discussing 11 chilling. See id. This citation is somewhat confusing in that the court in Pratt had no reason to 12 discuss chilling because it concluded that the plaintiff could not prove the absence of legitimate 13 penological interests. See Pratt, 65 F.3d at 808-09. Nonetheless, while the court has clearly 14 stated that one of the “basic elements” of a First Amendment retaliation claim is that the adverse 15 action “chilled the inmates exercise of his First Amendment rights,” id. at 567-68, see also 16 Resnick, 213 F.3d at 449, the comment in Rhodes at footnote 11 suggests that adverse action 17 which is more than minimal satisfies this element. Thus, if this reading of Rhodes is correct, the 18 chilling effect element is essentially subsumed by adverse action. 19 In her first amended complaint, Plaintiff alleges several Defendants retaliated 20 against her for grievances and her lawsuit filed against CMF staff. See ECF No. 17, p. 16-21. 21 Defendants argue Plaintiff fails to link Plaintiff’s protected conduct and Defendants’ alleged 22 retaliations. See ECF No. 27, p. 25-26. Defendants’ argument is unpersuasive. 23 Absent direct evidence, such as a confession by a defendant, the plaintiff may 24 establish retaliatory motive by offering circumstantial evidence of: (1) temporal proximity 25 between the protected speech and the alleged adverse action; (2) defendant’s previous 26 opposition to the protected conduct; or (3) other evidence that defendant’s justification for the 27 adverse action is false and pretextual. See McCollum v. California Dep’t of Corr. & Rehab., 28 647 F.3d 870, 882 (9th Cir. 2011). This Court finds Plaintiff provides sufficient allegations to 30 1 establish causation between her protected conduct and the alleged unconstitutional conduct of 2 Defendants. 3 i. Defendant Cherniss 4 Plaintiff alleges several possible retaliatory actions by Defendant Cherniss. 5 First, Defendant Cherniss filed an RVR and disciplinary report one month after Plaintiff filed a 6 grievance related to “staff misconduct.” See ECF No. 17, p. 16. Second, he issued Plaintiff a 7 false citation for refusing to participate in her disciplinary hearing. See ECF No. 30, p. 22. 8 Third, he found her guilty at this disciplinary hearing, which came with a multitude of 9 restrictions. See id. 10 Defendants argue there is no allegation Defendant Cherniss knew of Plaintiff’s 11 lawsuit because a summons had not been issued when these events occurred. See ECF No. 32, 12 p. 8. This contention, however, fails to consider Plaintiff’s other forms of protected conduct. 13 As to the first potential retaliatory act, this Court finds there are insufficient 14 allegations to infer a retaliatory motive for Defendant Cherniss’s RVR and disciplinary report. 15 Plaintiff fails to establish Defendant Cherniss knew of her protected conduct. While the Court 16 may infer retaliatory intent from temporal proximity, it may not do so without a defendant’s 17 knowledge of the protected conduct. Plaintiff’s allegation of a report for “staff misconduct” 18 does not name Defendant Cherniss, so this Court cannot infer he knew of this grievance. 19 Turning next to the second and third potential retaliatory actions, Plaintiff states 20 a cognizable claim. After Defendant Cherniss’s first RVR, Plaintiff exercised her First 21 Amendment right by filing a grievance against him. During her disciplinary hearing, it is 22 plausible Defendant Cherniss knew of Plaintiff’s grievance and the ongoing investigation 23 against him or became aware when Plaintiff asked him to recuse himself from her hearing. 24 These allegations permit this Court to infer retaliatory intent. Further, Defendant Cherniss’s 25 actions served no penological interest because, as alleged, there was no rational basis for the 26 second citation against Plaintiff or for her guilty verdict. Thus, Plaintiff has adequately stated 27 /// 28 /// 31 1 all the necessary elements of a retaliation claim against Defendant Cherniss. 13 2 ii. Defendant Ebert 3 Plaintiff alleges Defendant Ebert cited Plaintiff for being disruptive when she 4 asked for a more confidential setting for her attorney-client meeting. See ECF No. 17, p. 18. 5 Defendants argue Plaintiff does not allege her legal visit caused the citation. See ECF No. 27, 6 p. 26. Next, Plaintiff alleges Defendant Ebert stood within earshot of Plaintiff’s meeting and 7 threatened to place her attorneys on a “restricted” list. ECF No. 17, p. 18. Defendants assert 8 listening to a prisoner’s conversation is not an adverse action. See ECF No. 27, p. 26. The 9 Court is unconvinced by Defendants’ arguments. 10 Turning first to the causation argument, the complaint sufficiently establishes 11 Defendant Ebert knew of Plaintiff’s suit against CMF officials because of her role as litigation 12 coordinator. Knowledge is also plausibly inferred from Defendant Ebert’s eavesdropping. 13 Beyond Defendant Ebert’s knowledge of Plaintiff’s protected conduct, the alleged retaliation 14 occurred shortly after Plaintiff’s exercise of her protected conduct. Finally, Defendant Ebert 15 provided a pretextual justification for her actions. Plaintiff’s head injuries from the dining hall 16 attack left her hard of hearing. See ECF No. 17, p. 12-13. When placed in a room that 17 permitted others to easily overhear her conversation with her attorneys, it was not disruptive 18 for Plaintiff to ask for a more private location for her meeting. Thus, there is a causal 19 connection between Plaintiff’s right to file suit against Defendants and Defendant Ebert’s 20 actions. 21 Turning next to the adverse action requirement, Defendants’ argument is even 22 less convincing. Whether or not this Court is inclined to say that proximity to and 23 eavesdropping on an inmate’s conversation with her attorneys is adverse for purposes of a First 24 Amendment claim, Defendant Ebert’s conduct goes further. Defendant Ebert threatened to 25 limit Plaintiff’s access to her attorneys by placing them on a restricted list. See ECF No. 17, p. 26 13 27 There is no Heck issue presented by Plaintiff’s challenge to Defendant Cherniss’s guilty verdict in this action because it did not result in a loss of good time credits or otherwise 28 affect the duration of her confinement. Plaintiff’s First Amendment claim, therefore, is not barred by Heck v. Humphrey, 512 U.S. 477, 489 (1994). 32 1 18. This conduct had a potential chilling effect on Plaintiff’s right to pursue legal action 2 against CMF officials. See Brodheim v. Cry, 584 F.3d 1262, 1270-71 (9th Cir. 2009) (“[A] 3 statement that ‘warns’ a person to stop doing something carries the implication of some 4 consequence of a failure to heed that warning . . . . The power of a threat lies [in] . . . the 5 apprehension it creates in the recipient”). For these reasons, Plaintiff states a valid First 6 Amendment claim against Defendant Ebert. 7 iii. Defendants Fox and Tileston 8 Plaintiff alleges Defendants Fox and Tileston pressured staff to search and 9 discipline Plaintiff so she could be transferred to another institution. Defendants argue the first 10 amended complaint does not support Defendants Fox and Tileston knew of Plaintiff’s 11 grievances or were personally involved in Plaintiff’s retaliatory transfer. See ECF No. 27, p. 12 26. 13 Plaintiff does, however, allege Defendants Fox and Tileston, through their 14 duties to review staff complaints and grievances, knew of Plaintiff’s grievances and were the 15 only ones with the authority to transfer Plaintiff. See ECF No. 17, p. 14. But these allegations 16 do not sufficiently show Defendants Fox and Tileston acted in response to Plaintiff’s protected 17 conduct. In failing to present a causal connection between her protected conduct and the 18 alleged retaliations, Plaintiff does not present a cognizable retaliation claim against Defendants 19 Fox and Tileston. 20 4. Immunity 21 a. Qualified Immunity 22 Qualified immunity protects government officials from liability for civil 23 damages where their discretionary decisions did not violate a clearly established constitutional 24 or statutory right of which a reasonable person would have known. See Anderson v. Creighton, 25 483 U.S. 635, 638 (1987). It is meant to protect all but “the plainly incompetent or those who 26 knowingly violate the law.” Malley v. Briggs, 475 U.S. 335 (1986). The court must consider 27 two questions: (1) taken in the light most favorable to the injured party, whether the facts show 28 the alleged conduct violated a constitutional or statutory right and; (2) whether the alleged 33 1 deprived constitutional right was clearly established. 2 Regarding the second prong, the court must decide if existing case law provided 3 the defendant with an adequate warning that their conduct was unlawful. See Flores v. Morgan 4 Hill Unified Sch. Dist., 324 F.3d 1130, 1137 (9th Cir. 2003). However, “it is not necessary that 5 the alleged acts have been previously held unconstitutional, as long as the unlawfulness [of 6 defendant’s actions] was apparent in light of preexisting law.” Malik v. Brown, 71 F.3d 724, 7 727 (9th Cir. 1995). That is, the lack of precedent may indicate the obviousness of the illegality 8 of the issue. See id. 9 Although Defendants argue they are entitled to qualified immunity because no 10 constitutional violations occurred, Plaintiff has sufficiently alleged Eighth Amendment claims 11 against Defendants Santos; equal protection claims against Defendants Hopper, Hadrava, 12 Gibbs, Farmer; and First Amendment claims against Defendants Cherniss, Ebert, and Gibbs. 13 Plaintiff’s claims invoke rights well established by the Constitution and case law. Thus, these 14 Defendants are not entitled to qualified immunity at this stage of the pleadings. At this time, 15 this Court declines to address Defendants’ immunity to Plaintiff’s deficient claims for which 16 the Court finds leave to amend to be appropriate. A discussion of immunity as to such claims 17 is premature at this juncture. 18 b. Eleventh Amendment Immunity 19 Defendants argue the Court should dismiss Plaintiff’s claims for damages against 20 those sued in their official capacity under the Eleventh Amendment. See ECF No. 27, p. 27. The 21 Eleventh Amendment bars actions seeking damages from state officials acting in their official 22 capacities. See Eaglesmith v. Ward, 73 F.3d 857, 859 (9th Cir. 1995); Pena v. Gardner, 976 F.2d 23 469, 472 (9th Cir. 1992) (per curiam). The Eleventh Amendment does not, however, bar suits for 24 damages against state officials acting in their personal capacities or suits for prospective 25 declaratory or injunctive relief against state officials in their official capacities. See id.; Ex Parte 26 Young, 209 U.S. 123 (1908); Armstrong v. Wilson, 124 F.3d 1019, 1025 (9th Cir. 1997). 27 /// 28 /// 34 1 Here, Plaintiff is not seeking damages from any Defendant sued only in his or her 2 official capacity. See id. As Plaintiff correctly notes, the Eleventh Amendment does not “erect a 3 barrier against suits to impose ‘individual and personal liability’ on state officials under § 1983.” 4 Hafer v. Melo, 502 U.S. 21, 30-31 1991 (quoting Scheuer v. Rhoes, 416 U.S. 232, 238 (1974)); 5 see also Porter v. Jones, 319 F.3d 483, 491 (9th Cir. 2003). Thus, Defendants’ argument is 6 unpersuasive. 7 5. Mootness 8 Article III of the U.S. Constitution limits courts from hearing moot cases. See 9 NAACP v. City of Richmond, 743 F.2d 1346, 1352 (9th Cir. 1984). A case is moot if the 10 “issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the 11 outcome.” Murphy v. Hunt, 455 U.S. 478, 481 (1982) (citations omitted). The test for mootness 12 is whether the court can give the plaintiff any effective relief if it decides the matter on the 13 merits in her favor. See Garcia v. Lawn, 805 F.2d 1400, 1402 (9th Cir. 1986). That is, whether 14 the court can “undo” the effects of the alleged wrongdoing. Id. In the context of a prisoner’s 15 request for injunctive relief, transfer away from a particular facility without reasonable 16 expectation of return generally moots a prisoner’s claim against unconstitutional policies or 17 conditions. See Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991) (per curiam). 18 Defendants argue Plaintiff’s request for injunctive relief specific to CMF is moot 19 because she no longer resided there. On July 5, 2019, the parties filed a stipulated notice of 20 Plaintiff’s transfer back to CMF. See ECF No. 35. Thus, Plaintiff’s issues concerning CMF 21 remain live in light of this development. 22 6. Standing Under PREA 23 Although neither the Supreme Court nor the Ninth Circuit has addressed the 24 issue, this district has repeatedly held PREA gives no private right of action. See Peralta v. 25 Swetella, 2018 WL 6334723 (E.D. Cal. Dec. 5, 2018); Faz v. N. Kern State Prison, 2011 WL 26 4565918 (E.D. Cal. Sep. 28, 2011); Inscoe v. Yates, 2009 WL 3617810 (E.D. Cal. Oct. 27, 27 2009). Defendants cite other cases from three other districts in the Ninth Circuit holding the 28 same. See ECF No. 27, p. 28. The Western District of Virginia appears to agree. See Whitt v. 35 1 Yancey, 2015 WL 3456600, at *11 n.11 (E.D. Va. May 29, 2015) (“However, to the extent 2 Whitt seeks procedural — or, for that matter, substantive — due process under the PREA, any 3 such Fourteenth Amendment claim appears futile. ‘Nothing in the PREA suggests that Congress 4 intended to create a private right of action for inmates to sue prison officials for noncompliance 5 with the Act.’” (quoting De’Lonta v. Clarke, 2012 WL 4458648, at *3-4 (W.D. Va. Sept. 11, 6 2012))) 7 Plaintiff frequently alleges particular Defendants acted in violation of PREA or 8 Plaintiff’s PREA rights. See, e.g., ECF No. 17, p. 11 (alleging Defendants violated her 9 Fourteenth Amendment right to due process by failing to enact LGBTQI standards under 10 PREA); id. at 18 (alleging Defendants Fox and Tileston retaliated against her in violation of 11 PREA); ECF No. 30, p. 28 (alleging Defendants Hadrava and Santos violated PREA and thus 12 Plaintiff’s due process by placing her in non-disciplinary solitary confinement). While 13 Defendants argue Plaintiff cannot pursue claims against Defendants for failing to comply with 14 or properly implement PREA, Plaintiff does not appear, however, to allege any claims directly 15 under PREA. All claims fall under either the First, Eighth, or Fourteenth Amendments. See 16 ECF No. 17, p. 25-30. Therefore, the inability to sue directly under the PREA is irrelevant. 17 18 III. DISCUSSION – MOTION FOR MISJOINDER 19 A. Applicable Legal Standard 20 Federal Rule of Civil Procedure 21 states: 21 Misjoinder of parties is not a ground for dismissing an action. On motion or on its own, the court may at any time, on just terms, add or drop 22 a party. The court may also sever any claim against a party. 23 Fed. R. Civ. P. 21; See Mullaney v. Anderson, 342 U.S. 415, 417 (1952). 24 Severance under Rule 21 permits claims to proceed as discrete, independent suits 25 resulting in final judgments. See Herklotz v. Parkinson, 848 F.3d 894, 898 (9th Cir. 2017). In 26 deciding a motion for misjoinder, the court must consider whether an order under Rule 21 would 27 result in prejudice or undue delay. See Pena v. McArthur, 889 F. Supp. 403, 407 (E.D. Cal. 28 1994). The court must also consider the possibility of jury confusion. See id. (denying plaintiff’s 36 1 motion to join uninsured motorist in action against insurer, in part, because the jury might confuse 2 evidence concerning uninsured motorist’s negligence with the evidence demonstrating insurer’s 3 alleged breach of duty). The moving party has the burden to show the interest of judicial 4 economy should give way to protect that party’s interest. See Franklin Fueling Sys. v. Veeder- 5 Root Co., 2009 U.S. Dist. LEXIS 107507 (E.D. Cal. Nov. 17, 2009). The moving party must also 6 show a substantial risk of harm from a coordinated trial; however, prejudice to the non-moving 7 party will defeat a Rule 21 motion. See Sable Commc’ns of Cal., Inc. v. Pac. Tel. & Tel. Co., 8 890 F.2d 184, 191 n.13 (9th Cir. 1989). 9 Although the meaning of misjoinder is not evident from the face of Rule 21, the 10 meaning of the terms is made in reference to the rules governing joinder. See Pan Am. World 11 Airways, Inc. v. United States Dist. Court for Cent. Dist., 523 F.2d 1073, 1079-80 (9th Cir. 12 1975). Federal Rule of Civil Procedure 20 permits joinder of multiple defendants if: (1) relief is 13 asserted against them jointly, severally, or in the alternative with respect to or arising out of the 14 same transaction, occurrence, or series of transactions or occurrences; (2) and there are common 15 questions of law or fact among all defendants. Fed. R. Civ. P. 20(a)(2). 16 Joinder is proper only if both the transactional relatedness and commonality 17 requirements are satisfied. See Desert Empire Bank v. Insurance Co. of N. Am., 623 F.2d 1371, 18 1375 (9th Cir. 1980) (holding Rule 20 imposes two specific requirements for permissive joinder). 19 Parties are misjoined when they fail to satisfy either of the preconditions for permissive joinder 20 under Rule 20(a)(2). See Pena, 889 F. Supp. at 405. However, even if both elements are 21 satisfied, district courts may refuse joinder to avoid prejudice and delay, ensure judicial economy, 22 or protect principles of fundamental fairness. See Visendi v. Bank of Am., N.A., 733 F.3d 863, 23 870 (9th Cir. 2013) (finding even when requirements of transactional relatedness and 24 commonality are met, the district court must examine whether permissive joinder would comport 25 with principles of fundamental fairness or would prejudice either side). Joinder may be 26 prejudicial if: (1) the defendant is embarrassed or confounded in his presentation of separate 27 defenses; (2) the jury uses evidence of one claim to infer liability on a co-defendant of another 28 claim; or (3) the jury cumulates the evidence and finds guilt when it would not if the claims were 37 1 presented separately. See United States v. Johnson, 820 F.2d 1065, 1070 (9th Cir. 1987). The 2 Ninth Circuit has held claims with simple and distinct facts or evidence do not generally give rise 3 to prejudice. See Bean v. Calderon, 163 F.3d 1073, 1085 (9th Cir. 1998). 4 While there are no bright-line definitions of “transaction,” “occurrence,” or 5 “series,” transactional relatedness can refer to the “similarity in the factual background of the 6 claims.” Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir.1997). “Although there might be 7 different occurrences, where the claims involve enough related operative facts, joinder in a single 8 case may be appropriate.” Nguyen v. CTS Elecs. Mfg. Sols. Inc., 2014 WL 46553 (N.D. Cal. 9 2014). To satisfy the commonality requirement, all questions need not be common to all joined 10 parties. The common question may be one of fact or law and need not be the most important or 11 predominant issue in the litigation. See id. 12 B. Procedural History 13 Plaintiff initially filed a pro se complaint alleging Eighth Amendment claims 14 against Defendants Santos, Fox, Hopper, and Hadrava. See ECF No. 1. The Court dismissed the 15 complaint for failing the screening standard and gave Plaintiff leave to amend. See ECF No. 11. 16 Plaintiff’s first amended complaint, filed by retained counsel, raised additional First and 17 Fourteenth Amendment claims and added Defendants Diaz, Ebert, Farmer, Cherniss, Tileston, 18 and Does 1-3. Defendants subsequently moved to dismiss Plaintiff’s amended complaint and to 19 sever her additional claims 20 C. Analysis 21 Defendants’ motion for misjoinder should be denied because Plaintiff’s joinder has 22 met the requirements of Rule 20. Defendants have failed to show a significant risk of prejudice 23 from joinder. On the contrary, severance would be inefficient and inequitable. 24 1. Transactional Relatedness 25 Defendants argue Plaintiff’s additional claims do not arise from the same 26 transaction or occurrence as her Eighth Amendment claims. Defendants concede, however, 27 Plaintiff could join the Eighth Amendment claims against Defendants Santos and Does, the 28 equal protection and due process claims against Defendant Santos, and the equal protection 38 1 claims against Defendants Hadrava and Does because they all concern the dining hall incident. 2 See ECF No. 33, p. 3. Next, Defendants argue the supervisory claims against Defendants Diaz, 3 Fox, and Tileston create a distinct grouping of claims. See ECF No. 33, p. 4. Third, 4 Defendants group the allegations against Defendants Cherniss, Ebert, and Farmer as distinct 5 individual claims unrelated to any pattern of events. 6 The first amended complaint explicitly alleges a pattern of discrimination 7 throughout the CDCR, including CMF. Plaintiff sufficiently alleges discrimination in 8 Defendants’ failure to enact PREA standards the absence of which precipitated the dining hall 9 attack. As a result, Plaintiff filed grievances and Defendants subsequently retaliated against 10 her. The discrete interactions with Defendants Cherniss, Farmer and Gibbs are additional 11 discriminatory events in this series. Thus, Plaintiff’s claims satisfy this prong of Rule 20. 12 2. Commonality 13 Defendants also argue Plaintiff’s allegations of different constitutional 14 violations against different Defendants have no common questions of law or fact among them. 15 Plaintiff’s failure to allege the same claim against all Defendants, however, does not preclude 16 her ability to join these claims. 17 Plaintiff alleges the failure to implement PREA underpins a transphobic culture 18 at CMF. See ECF No. 31, p. 18. Accepting this statement as true, as the Court must, 19 questions of law and fact concerning the propriety of PREA run common to all claims. 20 3. Equity 21 Defendants argue that even if Plaintiff meets the requirements of permissive 22 joinder, this Court should grant severance because joinder would not comport with notions of 23 fundamental fairness. See ECF No. 28, p. 13. Specifically, Defendants are concerned the 24 jurors will be unable to compartmentalize the evidence against specific Defendants. See id. 25 They also argue the multitude of counts against varied combinations of Defendants will 26 confuse jurors struggling to discern who did what. See id. 27 /// 28 /// 39 1 As to Defendants’ concerns over bias and confusion, the Court has procedural 2 safeguards at its disposal, such as tailored jury instructions and motions in limine, to account 3 for these risks. Defendants have failed to demonstrate a substantial threat of harm by joinder 4 of Plaintiff’s claims. Further, severing Plaintiff’s claim will stymy her ability to establish 5 patterns of behavior and obtain injunctive relief from CDCR. 6 Defendants’ motion also fails to show how severing Plaintiff’s claims would 7 best suit notions of efficiency. At the hearing, Defendants even conceded that joinder would 8 promote efficiency. The Court agrees. Given the importance of the dining hall incident and 9 PREA to Plaintiff’s claims, severance would be an inefficient use of the parties’ and the 10 Court’s time and resources. 11 12 IV. CONCLUSION 13 Based on the foregoing, the undersigned recommends that: 14 1. Defendants’ motion for misjoinder (ECF No. 28) be DENIED; 15 2. Defendants’ motion to dismiss (ECF No. 27) be GRANTED in part and 16 DENIED in part as follows: 17 a. Defendants’ motion to dismiss Plaintiff’s Eighth Amendment 18 claims for failing to satisfy the pleading standards of Rule 8 be DENIED; 19 b. Defendants’ motion to dismiss Plaintiff’s Eighth Amendment 20 claims for failing to exhaust her administrative remedies be DENIED; 21 c. Defendants’ motion to dismiss for failure to state an Eighth 22 Amendment claim against Defendant Santos be DENIED; 23 d. Defendants’ motion to dismiss for failure to state an equal 24 protection claim under the Fourteenth Amendment be DENIED with regards to Defendants 25 Hopper, Hadrava, Gibbs, and Farmer; 26 e. Defendants’ motion to dismiss for failure to state an equal 27 protection claim under the Fourteenth Amendment be GRANTED with regards to Defendant 28 Diaz, Santos, Fox, and Tileston; 40 1 f. Defendants’ motion to dismiss for failure to state a due process 2 claim under the Fourteenth Amendment be GRANTED with regards to Defendants Diaz, Fox, 3 Hadrava, and Santos; 4 g. Defendants’ motion to dismiss for failure to state a First 5 Amendment claim be DENIED with regards to Defendants Cherniss, Ebert, and Gibbs; 6 h. Defendants’ motion to dismiss for failure to state a First 7 Amendment claim be GRANTED with regards to Defendants Fox and Tileston; 8 i. Defendants’ motion to dismiss Plaintiff’s claim as barred by 9 Eleventh and under qualified immunity be DENIED; 10 j. Defendants’ motion to dismiss Plaintiff’s claims for injunctive 11 relief as moot be DENIED; and 12 3. Plaintiff be granted leave to file a second amended complaint. 13 These findings and recommendations are submitted to the United States District 14 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 15 after being served with these findings and recommendations, any party may file written 16 objections with the Court. Responses to objections shall be filed within 14 days after service of 17 objections. Failure to file objections within the specified time may waive the right to appeal. See 18 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 19 20 21 Dated: August 16, 2019 ____________________________________ 22 DENNIS M. COTA 23 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 41