Holestine v. R.J. Donovan Correctional Facility ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 ERNEST KELLY HOLESTINE, Case No.: 18-CV-2094-AJB(WVG) 14 Plaintiff, REPORT AND 15 v. RECOMMENDATION ON DEFENDANTS’ MOTION TO 16 R.J. DONOVAN CORRECTIONAL DISMISS AND MOTION TO STRIKE FACILITY et al., 17 AND PLAINTIFF’S MOTION FOR Defendants. LEAVE TO AMEND 18 19 [Doc. Nos. 49, and 52] 20 This action arises under 42 U.S.C. § 1983. Plaintiff Ernest Kelly Holestine, an 21 inmate proceeding pro se and in forma pauperis, filed a Complaint claiming that RJ 22 Donovan Correctional Facility (“Donovan” or “Facility”) violated his civil rights. The 23 Facility allegedly denied Plaintiff the opportunity to participate in various academic, work, 24 and credit-earning services and programs due to discrimination against Plaintiff’s mental 25 26 27 28 1 disability and placement in the R.J. Donovan Correctional Facility Enhanced Outpatient 2 Program (“EOP”).1 3 For the reasons set forth herein, the Court hereby RECOMMENDS that Defendants’ 4 Motion to Dismiss be DENIED IN PART AS MOOT and GRANTED IN PART. The 5 Court also RECOMMENDS that Plaintiff’s Motion for Leave to File an Amended 6 Complaint and to Exceed Page Limit be GRANTED. 7 I. FACTUAL ALLEGATIONS2 8 Plaintiff is an inmate at the R.J. Donovan Correctional Facility and suffers from 9 mental illness. (Doc. No. 1 at 2, 4.) At the time of the events described in his Complaint, 10 Plaintiff was placed in the Enhanced Outpatient Program (“EOP”) at Donovan. (Id. at 5.) 11 On August 4, 2017, Plaintiff met with his Interdisciplinary Treatment Team and 12 expressed a desire to be enrolled in a college program and to be assigned as a literacy tutor 13 at Donovan. (Id. at 8.) Enrollment in the voluntary college program required one of the 14 following: (1) a high school diploma; (2) a G.E.D. certificate; or (3) a 10.0 grade level of 15 achievement in reading comprehension, vocabulary, and general mathematics on the Tests 16 of Adult Basic Education (“TABE”).3 (Id. at 5.) To purchase, receive, or possess college 17 correspondence courses, Plaintiff had to obtain approval from Defendant Mondet, who was 18 the Supervisor of Correctional Education Programs, and be enrolled in the Facility “C” 19 Voluntary Education Program. (Id. at 19.) 20 Assignment as a literacy tutor required one of the following: (1) a high school 21 diploma; (2) a G.E.D. certificate; or (3) the demonstration of tutoring skills as observed by 22 23 1 The EOP “is for inmates with acute onset or significant decompensation of a serious mental disorder” and who are “unable to function in the general prison population.” Coleman v. Brown, 28 F. Supp. 3d 24 1068, 1075 (E.D. Cal. Apr. 10, 2014) (internal quotations and citation omitted). 25 2 For purposes of Defendants’ Motion to Dismiss, the facts below reflect the allegations in Plaintiff’s 26 Complaint. 27 3 Plaintiff scored a 12.9 grade level on the Level “A” battery TABE on March 15, 1996. (Doc. No. at 5- 6.) However, on October 8, 1997, Plaintiff was administered the Level “M” battery TABE and scored a 28 1 an education staff member and training in a structured literacy tutor program. (Id. at 5-6.) 2 Plaintiff had previously worked as a literacy tutor and participated in college courses while 3 incarcerated at a different prison facility. (Id. at 6.) 4 Plaintiff’s Treatment Team endorsed his request to enroll in the college program 5 and to be assigned as a literacy tutor. (Id. at 8.) The Treatment Team accordingly issued 6 a statement that Plaintiff was cleared to participate in the programs while continuing to be 7 treated in the EOP. (Id.) 8 On August 14, 2017, Plaintiff met with the Donovan Unit Classification Committee 9 (“UCC”), which included Philip Bracamonte (“Defendant Bracamonte”) and Pilar Khder 10 (“Defendant Khder”). (Id.) Plaintiff alleges that Defendant Khder, the Facility “C” 11 Voluntary Education Program Academic Instructor, told the UCC that Plaintiff should not 12 be approved for participation in the Voluntary Education or Literacy Tutor programs 13 because it was “too hard to coordinate college classes and EOP groups.” (Id.) Plaintiff 14 further alleges that Defendant Khder stated that Plaintiff’s TABE reading score listed in 15 the Strategic Offender Management System was only 9.9 and that a 10.0 grade level was 16 required to participate in the voluntary college and tutor programs. (Id.) Plaintiff 17 responded by informing the UCC that his actual TABE reading score was at a 12.9 grade 18 level and that he already had college experience. (Id. at 8-9.) 19 The UCC provisionally approved Plaintiff for the voluntary college program and 20 conditioned his participation upon his agreeing to be re-administered the TABE reading 21 exam and producing his academic records for Defendant Khder’s review. (Id. at 9.) 22 However, the UCC did not approve Plaintiff for assignment as a literacy tutor. (Id.) 23 Plaintiff alleges Defendant Khder deliberately refused to comply with the UCC’s 24 recommendations by refusing to (a) register Plaintiff in the Education Classroom 25 Attendance Tracking System, the Strategic Offender Management System, or the Facility 26 “C” Voluntary Education Program College program; (b) arrange for Plaintiff to be added 27 to the Master Pass List or to be issued Inmate Passes to gain physical access to the 28 Education Compound; (c) arrange for Plaintiff to be re-administered the TABE reading 1 exam; and (d) allow Plaintiff to register for college correspondence courses. (Id.) Plaintiff 2 alleges during the relevant time period, Defendant Khder approved an inmate with an 8.0 3 TABE reading score to register for college courses. (Doc. No. 52 at 24.) 4 On October 19, 2017, Plaintiff submitted an Inmate Appeal in which he complained 5 that he was being unreasonably excluded from the voluntary college and tutor programs 6 due to his placement in the EOP and incorrect TABE scores. (Doc. No. 1 at 9) Plaintiff 7 also requested to register for college correspondence courses, that Donovan re-examine its 8 Americans with Disabilities Act (ADA) policies, and that his Strategic Offender 9 Management System (SOMS)4 education file be updated. (Id.) 10 On November 7, 2017 and December 19, 2017, Defendant Paramo, Defendant 11 Juarez, and Defendant Bonilla respectively issued the First Level Response and the Second 12 Level Response5 for Plaintiff’s inmate appeal. (Id. at 10.) The appeal was denied because 13 Plaintiff’s TABE score was too low to participate in the voluntary college program or for 14 assignment as a literacy tutor. (Id.) Plaintiff alleges he produced all of his academic records 15 to demonstrate he was qualified to participate in the college and tutor programs, and that 16 his original TABE score of 12.9 grade level was also on record in Plaintiff’s files. (Doc. 17 No. 54 at 25.) 18 On March 22, 2018, Plaintiff was re-administered the TABE and received a 12.9 19 grade level reading score. (Doc. No. 1 at 10.) On March 26, 2018, Plaintiff again appeared 20 before the UCC, which included Defendant Bracamonte and Defendant Mendez, for his 21 annual review. (Id.) Plaintiff requested that he be approved for assignment as a literacy 22 tutor. (Id.) However, the UCC denied Plaintiff’s request and removed him from the 23 voluntary college assignment list. (Id.) 24 25 26 4 SOMS is the California Department of Corrections and Rehabilitation’s consolidated management system. 27 28 5 There are three levels of formal review for the administrative appeals process. See Cal. Code Regs. tit. 1 On July 3, 2018, Plaintiff’s assigned clinician, Dr. Marquez, issued a medical memo 2 indicating that the EOP mental health staff for program assignments cleared Plaintiff in 3 both educational and work-incentive positions. (Id.) Defendant Coon received this memo, 4 and Plaintiff requested that Defendant Coon schedule a hearing to consider this memo. 5 (Doc. No. 52 at 20.) Defendant Coon stated that Plaintiff had to wait until his next 6 scheduled classification hearing in February 2019. (Id.) 7 On July 11, 2018, Defendant Voong and Defendant Murphy issued a Third Level 8 Response, denying Plaintiff’s inmate appeal. (Doc. No. 1 at 10.) Defendant Voong and 9 Defendant Murphy acknowledged that Plaintiff was otherwise qualified to participate in 10 the college and tutor programs but that Plaintiff’s placement in the EOP unit and his 11 therapeutic activities might take precedent over other programs. (Id.) Plaintiff alleges that 12 Defendant Voong and Defendant Murphy deliberately failed to conduct a fact-specific 13 investigation to gather sufficient information from qualified experts to determine what 14 constituted a reasonable accommodation for Plaintiff’s mental disability. (Id.) 15 On July 17, 2018, Plaintiff met with his Interdisciplinary Treatment Team for a 90- 16 day review. (Id.) During the meeting, Plaintiff requested that he be assigned as a literacy 17 tutor and allowed to participate in the voluntary college program. (Id.) The Treatment 18 Team endorsed Plaintiff’s request. (Id.) 19 Following the Interdisciplinary Treatment Team meeting of July 17, 2018, Plaintiff 20 made numerous attempts to be allowed to participate in the college and tutor programs. 21 (Id.) He submitted numerous CDCR 22 request forms to Defendants Mondet and 22 Bracamonte, the Inmate Assignments Office, Plaintiff’s work supervisor, and Plaintiff’s 23 correction counselor Defendant Masterson, requesting that he be allowed to participate in 24 the college and tutor programs. (Doc. No. 52 at 21.) Plaintiff also made numerous 25 unsuccessful attempts to gain physical access to the Facility “C” Education Compound to 26 discuss his available options for participating in the programs. (Doc. No. 1 at 11.) 27 On August 23, 2018, Plaintiff explained to Defendant Self that his mental illness 28 was being exacerbated by witnessing all of the violence during his working hours. (Doc. 1 No. 52 at 21.) Defendant Self reported to the Reasonable Accommodation Panel (“RAP”), 2 including Defendant Santana, that he had determined there was no potential for injury or 3 other serious harm regarding Plaintiff’s reasonable accommodation request. (Id.) 4 On August 27, 2018, Plaintiff’s clinician offered an evaluation recommending that 5 Plaintiff be placed in a work assignment with limited interaction with others. (Id.) On 6 September 18, 2018, Defendant Santana issued a RAP response, denying Plaintiff’s 7 reasonable accommodation request. (Id. at 22.) 8 On September 25, 2018, Plaintiff’s clinician authored another medical memo 9 recommending again that Plaintiff be placed in a job assignment with limited interaction 10 with others. (Id. at 22.) Plaintiff then requested that his reasonable accommodation request 11 be reconsidered. (Id.) Defendant Santana informed Plaintiff that his specific job change 12 request was being denied because he was not on the tutor assignment waiting list but told 13 Plaintiff he would be accommodated in his current work assignment. (Id.) 14 On November 8, 2018, Defendants Covello and Santana issued the Second Level 15 Response partially granting Plaintiff’s RAP Response appeal, re-stationing Plaintiff inside 16 the housing unit. (Id. at 23.) Plaintiff was not accommodated as arranged, and Defendant 17 Santana failed to respond to Plaintiffs request to be accommodated. (Id.) On December 6, 18 2018, Plaintiff spoke to Defendant Covello, and Defendant Covello stated he would “fix 19 the problem.” (Id.) 20 On January 28, 2019, Plaintiff’s annual review classification hearing was held by 21 the UCC, and Plaintiff was added to the literacy tutor assignment waiting list. (Id.) On 22 February 2, 2019, Plaintiff was reassigned from his ADA inmate assistant position to a 23 literacy tutor position. (Id.) 24 II. PROCEDURAL HISTORY 25 Plaintiff brought suit on September 6, 2018, alleging seven claims against multiple 26 defendants. Specifically, Plaintiff brought (1) a discrimination claim under the Americans 27 with Disabilities Act; (2) a discrimination claim under the Rehabilitation Act; (3) a 28 discrimination claim under the Equal Protection Clause; (4) a Due Process claim; (5) a 1 claim under deprivation of state-created liberty interests; and, (6) a violation of Free Speech 2 claim as to all Defendants Voong, Murphy, Paramo, Juarez, Mondet, Bracamonte, Mendez, 3 Bonilla, and Khder; and (7) a claim of failure to lawfully administer, train, supervise, and 4 discipline only as to Defendants Voong, Murphy, Paramo, Juarez, Mondet, Bracamonte, 5 and Bonilla. (Doc. No. 1 at 22-24.) On January 18, 2019, Defendants filed a Motion to 6 Dismiss as to Plaintiff’s fourth, fifth, and sixth causes of action. (Doc. No. 19.) On February 7 19, 2019, Defendants Murphy and Khder later joined the Motion to Dismiss. (Doc. Nos. 8 25, 41.) In response, on February 11, 2019, Plaintiff filed a Motion for Leave to File 9 Amended Complaint, and a Notice of Voluntary Dismissal of Fourth and Fifth Causes of 10 Action in Initial Complaint. (Doc. No. 24.) On August 5, 2019, the Court recommended 11 Defendants’ Motion to Dismiss be granted in part, and Plaintiff’s Motion for Leave to File 12 an Amended Complaint be granted. (Doc. No. 43.) The Court order adopted in part the 13 Report and Recommendation, granting in part and denying in part Defendants’ Motion to 14 Dismiss, and granting Plaintiff’s Motion for Leave to File an Amended Complaint. (Doc. 15 No. 45.) 16 On October 21, 2019, Defendants filed the pending Motion to Dismiss as to the 17 Equal Protection claim and Motion to Strike Plaintiff’s punitive damages claim. (Doc. No. 18 49.) In response, on December 2, 2019, Plaintiff filed a Motion for Leave to File Third 19 Amended Complaint and a Response in Opposition to Defendants’ Motion to Dismiss on 20 December 27, 2019. (Doc. Nos. 52, 54.) In Plaintiff’s Motion for Leave to File Third 21 Amended Complaint, Plaintiff added Defendants P. Covello, J. Santana. B. Self, S. 22 Masterson, and D. Coon. (Doc. No. 52 at 4.) Also in his Motion for Leave, Plaintiff 23 voluntarily abandoned the claim of failure to lawfully administer, train, supervise, and 24 discipline, and added a claim of Defendant’s unlawful customs policies, and practices as 25 to Defendants Paramo, Juarez, Mondet, Bracamonte, Bonilla, Covello (“Supervisory 26 Defendants.” (Doc. No. 52 at 29, 32.) 27 III. LEGAL STANDARD 28 A. Rule 12(b)(6) Motion to Dismiss 1 Federal Rule of Civil Procedure 12(b)(6), also referred to as a motion to dismiss, 2 permits a party to bring a motion arguing that a complaint “fail[s] to state a claim upon 3 which relief can be granted.” The Court evaluates whether a complaint states a cognizable 4 legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which 5 requires a “short and plain statement of the claim showing that the pleader is entitled to 6 relief.” Although Rule 8 “does not require ‘detailed factual allegations,’ . . . it [does] 7 demand[] more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” 8 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 9 544, 555 (2007)). More specifically, “a plaintiff’s obligation to provide the ‘grounds’ of 10 his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic 11 recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 12 (citation omitted). 13 “To survive a motion to dismiss, a claim must contain sufficient factual matter, 14 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 15 678 (quoting Twombly, supra, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim 16 meets this requirement when the facts pled “allow . . . the court to draw the reasonable 17 inferences that the defendant is liable for the misconduct alleged.” Id. at 677 (citing 18 Twombly, supra, 550 U.S. at 557). Although a claim need not be probable on its face, there 19 must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. Facts 20 “merely consistent with a defendant’s liability” do not equate to a facially plausible claim. 21 Id. (quoting Twombly, 550 U.S. at 557). Further, the Court is “not bound to accept as true 22 a legal conclusion couched as a factual allegation.” Id. at 678. This review requires context- 23 specific analysis involving the Court’s “judicial experience and common sense.” Id. at 678 24 (citation omitted). “[W]here the well-pleaded facts do not permit the court to infer more 25 than the mere possibility of misconduct, the complaint has alleged—but it has not 26 ‘show[n]’—‘that the pleader is entitled to relief.’” Id. 27 C. Standards Applicable to Pro Se Litigants in Civil Rights Actions 28 1 Where, as here, the plaintiff appears pro se in a civil rights suit, the Court also must 2 be careful to construe the pleadings liberally and afford the plaintiff any benefit of the 3 doubt. Garmon v. Cnty. of L.A., 828 F.3d 837, 846 (9th Cir. 2016). A pro se litigant is 4 entitled to notice of the deficiencies in the complaint and an opportunity to amend unless 5 the complaint’s deficiencies cannot be cured by amendment. Cato v. United States, 70 6 F.3d 1103, 1106 (9th Cir. 1995) (dismissal without leave to amend is not an abuse of 7 discretion where amendment would be futile). 8 IV. DISCUSSION 9 A. Defendants’ Motion to Dismiss the Equal Protection Claim 10 Defendants seek the dismissal of Plaintiff’s Equal Protection claim, arguing 11 Plaintiff fails to state a claim for which relief may be granted. (Doc. No. 49 at 6.) 12 Defendants argue that Plaintiff fails to show that the named Defendants were responsible 13 for assigning similarly situated EOP inmates to positions in an educational or work- 14 incentive program, while also denying Plaintiff the same opportunities. (Id. at 15). 15 "The Equal Protection Clause of the Fourteenth Amendment commands that no 16 State shall 'deny to any person within its jurisdiction the equal protection of the laws,' which 17 is essentially a direction that all persons similarly situated should be treated alike." City of 18 Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 19 U.S. 202, 216 (1982)). Plaintiff’s case is premised on a “class of one” theory, “where the 20 plaintiff alleges that [h]e has been intentionally treated differently from others similarly 21 situated and that there is no rational basis for the difference in treatment.” Willowbrook v. 22 Olech, 528 U.S. 562, 564 (2000). To “be considered similarly situated, the class of one 23 challenger and his comparators must be prima facie identical in all relevant respects or 24 directly comparable in all material respects.” Warkentine v. Soria, 152 F. Supp. 3d 1269, 25 1294 (E.D. Cal. 2016) (quoting U.S. v. Moore, 543 F.3d 891, 896 (7th Cir. 2008). Courts 26 have recognized “that the rational basis prong of a ‘class of one’ claim turns on whether 27 there is a rational basis for the distinction, rather than the underlying government action.” 28 Gerhart v. Lake Cty. Mont., 637 F.3d 1013, 1023 (9th Cir. 2010). "A class of one plaintiff 1 must show that the discriminatory treatment 'was intentionally directed just at him, as 2 opposed to being an accident or a random act.'" North Pacifica LLC v. City of Pacifica, 526 3 F.3d 478, 486 (9th Cir. 2008) (quoting Jackson v. Burke, 256 F.3d 93, 96 (2d Cir. 2001)). 4 “Intentional discrimination means that a defendant acted at least in part because of a 5 plaintiff’s protected status.” Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003) 6 (internal quotation marks and citation omitted; emphasis in original). To withstand a 7 Motion to Dismiss, “§ 1983 claims based on Equal Protection violations must plead 8 intentional unlawful discrimination or allege facts that are at least susceptible of an 9 inference of discriminatory intent.” Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 10 1022, 1026 (9th Cir. 1998) (citations omitted). 11 Here, Plaintiff alleges that he was “intentionally excluded from participating in the 12 RJDCP Voluntary Education Program college and tutor programs.” (Doc. No. 54 at 16). 13 Defendants contend Plaintiff has failed to establish a causal connection between the named 14 Defendants’ actions and the alleged discriminatory treatment. (Doc. No. 49 at 15-16). 15 Plaintiff has not adequately pleaded an Equal Protection claim as to any of the named 16 Defendants because Plaintiff has not adequately pleaded he is “similarly situated” to other 17 EOP inmates. 18 1. “Similarly Situated” Standard for an Equal Protection Claim 19 To adequately plead an Equal Protection claim under a “class of one” theory, 20 Plaintiff must allege he has been treated differently than others similarly situated and “his 21 comparators must be prima facie identical in all relevant respects or directly comparable in 22 all material respects.” Warkentine v. Soria, 152 F. Supp. 3d 1269, 1294 (E.D. Cal. 2016) 23 (quoting U.S. v. Moore, 543 F.3d 891, 896 (7th Cir. 2008). More specifically, Plaintiff and 24 the individuals he is claiming are “similarly situated” to him “must be similar in the 25 respects pertinent to the state’s policy.” Taylor v. San Diego County, 800 F.3d 1164, 1169 26 (9th Cir. 2015). In other words, Plaintiff must be “equally capable for the purpose at issue.” 27 Hansen v. Rimel, 104 F.3d 189, 190 (8th Cir. 1997). It is imperative that Plaintiff and the 28 other named EOP inmates are “similarly situated” “so that the factor motivating the alleged 1 discrimination can be identified . . . .” Arizona Dream Act Coal v. Brewer, 757 F.3d 1053, 2 1064 (9th Cir. 2014) (citation omitted). 3 a. Defendant Khder 4 Plaintiff alleges Defendant Khder’s discrimination is evidenced by Khder stating it 5 is “too hard to coordinate college classes and EOP groups” and “[EOP participants] are too 6 hard to work with.” (Doc. No. 52 at 27). Defendant Khder also allegedly stated “It doesn’t 7 matter if Mr. Holestine is a professor and had completed a doctorate, he is not going to be 8 enrolled in a college program without a 10.0 TABE score.” (Doc. No. 46 at 10.) Further, 9 Plaintiff alleges Defendant Khder deliberately refused to comply after the UCC 10 provisionally approved Plaintiff to participate in the VEP college program. (Doc. No. 52 11 at 27.) During the relevant time period, “an EOP inmate with an 8.0 TABE reading score 12 was allowed by Defendant Khder to register for college courses.” (Id. at 24.) Plaintiff 13 argues “other similarly-situated EOP inmates were treated differently than he was treated” 14 because “. . . other EOP inmates were allowed to participate in the college and tutor 15 programs despite their placement in the EOP and without regard to their TABE reading 16 scores.” (Doc. No. 54 at 16). 17 b. Defendant Bonilla 18 Plaintiff also alleges an Equal Protection violation against Defendant Bonilla. 19 Plaintiff contends the First Level Response (“FLR”) and Second Level Response (“SLR”) 20 for Plaintiff’s inmate appeal “contain numerous intentional falsehoods and/or reckless 21 disregard for the truth, made by Defendant Bonilla, to make it falsely appear that Plaintiff 22 was not otherwise qualified to participate in the college and tutor programs . . . .” (Id. at 23 25.) More specifically, “Defendant Bonilla falsely states in the FLR that Plaintiff failed to 24 provide any evidence, documentation, or information that would support his appeal. When 25 in fact, Plaintiff produced all of his academic records . . . which clearly demonstrated that 26 he was qualified to participate in the college and tutor programs.” (Id.) Further, “Defendant 27 Bonilla falsely states in the FLR and SLR that the only TABE score on record for Plaintiff 28 was the 9.9 grade level score. When in fact, the original TABE score of 12.9 grade level 1 was also on record in Plaintiff’s CDCR files.” (Id.) Defendant Bonilla was “responsible for 2 ensuring that each qualified EOP inmate had an equal opportunity to participate in these 3 programs” and “other similarly situated inmates were being allowed to participate in these 4 CDCR/RJDCF academic and work incentive programs” while Plaintiff was not. (Id. at 27- 5 28.) 6 c. Defendants Juarez and Paramo 7 Plaintiff also argues an Equal Protection claim as to Defendants Juarez and Paramo. 8 Defendants Juarez and Paramo were “responsible for identifying each RJDCF EOP inmate 9 who was qualified to participate in these academic and work incentive programs . . . .” (Id.) 10 Plaintiff alleges “Defendants Paramo [and] Juarez . . . intentionally denied Plaintiff’s 11 Inmate Appeal . . . based on the erroneous and outdated 9.9 TABE reading score, and 12 intentionally acquiesced in Defendant Khder’s other discriminatory conduct.” (Id. at 27.) 13 Further, Plaintiff argues that “other similarly situated RJDCF EOP inmates were being 14 treated differently than Plaintiff during the same relevant time period. Notwithstanding 15 their placement in the EOP units, and without regard to their TABE reading scores of less 16 than 10.0 grade level . . . .” (Id.) 17 d. Defendants Bracamonte and Mendez 18 In his Complaint, Plaintiff also points to Defendants Bracamonte and Mendez for 19 discrimination under an Equal Protection claim. Plaintiff believes Defendant Bracamonte 20 and Mendez’ circumstantial evidence of discrimination is shown by their failure to approve 21 him for a literacy tutor position and removing Plaintiff from the VEP college assignment 22 list after Plaintiff received a 12.9 TABE reading score and after he reported his previous 23 college and work experience. (Id. at 19.) Plaintiff submitted a written request to Defendant 24 Bracamonte that Plaintiff be scheduled a special review hearing to consider his job change 25 request, and Defendant Bracamonte did not respond. (Id.) “Upon information and belief, 26 Defendant[] Bracamonte . . . [was] . . . arranging for other RJDCF EOP and other inmates 27 to be scheduled for special UCC review hearings throughout the year, anytime these other 28 inmates were eligible for a ‘program review,’ during the same relevant time period in which 1 [he] required Plaintiff to wait until his annual review hearing.” (Id. at 28). Further, Plaintiff 2 contends “during the same relevant time period in which Defendants Bracamonte [and] 3 Mendez . . . had refused to approve Plaintiff to participate in these academic and work 4 incentive programs at his UCC review hearings, these same Defendants were approving 5 other similarly situated EOP inmates to participate in these same programs during their 6 own UCC review hearings.” (Id.) 7 e. Defendants Masterson and Coon 8 In his Motion for Leave to File a Third Amended Complaint, Plaintiff also contends 9 Defendants Masterson and Coon violated the Equal Protection clause of the Fourteenth 10 Amendment. Plaintiff pleads that Defendants Coon and Masterson “intentionally refused 11 to schedule Plaintiff for an appropriate UCC hearing to consider [his healthcare] chronos 12 and Functional Evaluations issued by Plaintiff’s mental health treatment team.” (Id. at 27.) 13 More specifically, after Plaintiff’s clinician recommended that Plaintiff should be placed 14 in a work assignment with limited interaction with others, Defendants Coon and Masterson 15 stated that Plaintiff had to wait until his next scheduled classification hearing to consider 16 this healthcare chrono. (Id. at 20-21.) Further, “upon information and belief, Defendants 17 Coon [and] Masterson . . . were . . . arranging for other RJDCF EOP and other inmates to 18 be scheduled for special UCC review hearings all throughout the year, anytime these other 19 inmates were eligible for a ‘program review,’ during the same relevant time period in which 20 they required Plaintiff to wait until his annual review hearing.” (Id. at 28.) 21 f. Legal Sufficiency of Named “Similarly Situated” Individuals 22 As pleaded, Plaintiff attempts to name several EOP inmates whom Plaintiff contends 23 he is “similarly situated” with to establish an Equal Protection “class of one” claim against 24 the named Defendants. Here, Plaintiff has alleged he and the other group of inmates are 25 “similarly situated” because all of the named inmates are also housed in the EOP. (Id. at 26 36.) However, to survive a Motion to Dismiss an Equal Protection claim, Plaintiff and the 27 group being compared to him “must be similar in the respects pertinent to the State’s 28 policy.” Taylor v. San Diego County, 800 F.3d 1164, 1169 (9th Cir. 2015). To show 1 whether Plaintiff is “similarly situated” to other EOP inmates, Plaintiff must plead he “is 2 equally capable for the purpose at issue.” Hansen v. Rimel, 104 F.3d 189, 190 (8th Cir. 3 1997). Further, to “be considered similarly situated, the class of one challenger and his 4 comparators must be prima facie identical in all relevant respects or directly comparable in 5 all material respects.” Warkentine v. Soria, 152 F. Supp. 3d 1269, 1294 (E.D. Cal. 2016) 6 (quoting U.S. v. Moore, 543 F.3d 891, 896 (7th Cir. 2008). From the facts alleged, Plaintiff 7 argues Defendants Khder, Bonilla, Bracamonte, Mendez, Paramo, Juarez, Masterson, and 8 Coon have intentionally treated Plaintiff differently from others similarly situated. 9 In the memorandum regarding EOP accessibility to general population prison 10 programs, the letter states “EOP IPs are eligible for all prison programs and activities so 11 long as the Interdisciplinary Treatment Team (“IDTT”) individually determines that the 12 program or activity is consistent with the Inmate-patient’s overall mental health treatment 13 . . ..” (Doc. No. 54 at 69.) According to Plaintiff’s pleadings, the IDTT endorsed his request 14 to enroll in the college program and to be assigned as a literacy tutor. (Doc. No. 1 at 8.) 15 Here, it seems that Plaintiff has pleaded via the IDTT that he is capable of participating in 16 the college programs without his treatment rendering him ineligible. However, absent 17 being endorsed by the IDTT and participating in the EOP, Plaintiff has not sufficiently pled 18 he is “similarly situated” to other named EOP inmates “so that the factor motivating the 19 alleged discrimination can be identified.” Arizona Dream Act Coal v. Brewer, 757 F.3d 20 1053, 1064 (9th Cir. 2014) (citation omitted). 21 Plaintiff’s pleadings are missing sufficient factual information regarding EOP 22 inmates such as: similar treatment plans, mental conditions, academic credentials, 23 schedules, or enrolled college courses. “In other words, the other group[] of prisoners that 24 Plaintiff[] suggests are ‘similarly situated’ [could be] . . . dissimilarly situated in a number 25 of significant respects.” Walker v. Woodford, 454 F. Supp. 2d 1007, 1019 (S.D. Cal. 2006). 26 Further, to “be considered similarly situated, the class of one challenger and his 27 comparators must be prima facie identical in all relevant respects or directly comparable in 28 all material respects.” Warkentine v. Soria, 152 F. Supp. 3d 1269, 1294 (E.D. Cal. 2016) 1 (quoting U.S. v. Moore, 543 F.3d 891, 896 (7th Cir. 2008). Plaintiff has failed to allege he 2 and the other EOP inmates are “arguably indistinguishable” thus, Plaintiff has not 3 sufficiently pled an Equal Protection claim against Defendants Khder, Bonilla, 4 Bracamonte, Mendez, Paramo, Juarez, Masterson, or Coon. See Engquist v. Or. Dep't of 5 Agric., 553 U.S. 591, 601 (2008). 6 2. Defendant Santana 7 Plaintiff added Defendant Santana to his Motion for Leave, alleging Defendant 8 Santana “intentionally refused to schedule Plaintiff for an appropriate UCC hearing to 9 consider [his healthcare] chronos . . . issued by Plaintiff’s mental health treatment team.” 10 (Doc. No. 52 at 27.) Defendant Santana, the Associate Warden and ADA Coordinator at 11 the RJDCF, denied Plaintiff’s reasonable accommodation request for a work assignment 12 change to a literacy tutor position after Plaintiff’s clinician “recommended that he should 13 be placed in a work assignment with limited interaction with others.” (Id. at 22.) Shortly 14 after denying Plaintiff’s reasonable accommodation request, Defendant Santana “informed 15 [Plaintiff] that his specific job change request was being denied because he was not on the 16 tutor assignment waiting list.” (Id.) However, Defendant Santana indicated that he would 17 request that Plaintiff be added to the tutor assignment waiting list, and in the meantime, 18 “Plaintiff was going to be accommodated in his current ADA inmate assignment work 19 assignment.” (Id.) About three weeks later, “Plaintiff submitted a written request to 20 Defendant Santana and notified him that he was not being accommodated as arranged,” 21 and Defendant Santana did not respond to this request. (Id. at 23.) 22 Here, Defendant Santana denied Plaintiff’s job change request because he was not 23 on the tutor assignment waiting list and therefore could not be assigned as a literacy tutor. 24 The Supreme Court holds that “the class-of-one theory of equal protection . . . is simply a 25 poor fit in the public employment context.” Engquist, 553 U.S. at 605. This is because 26 “employment decisions are quite often subjective and individualized, resting on a wide 27 array of factors that are difficult to articulate and quantify.” Id. at 604. Being assigned as a 28 1 literacy tutor is a discretionary action, and therefore precludes a “class of one” Equal 2 Protection claim against Defendant Santana. 3 / / / 4 / / / 5 3. Defendant Self 6 Plaintiff alleges newly added Defendant Self “used trickery and deceit in responding 7 to Plaintiff’s reasonable accommodation request.” (Doc. No. 52 at 21.) After Plaintiff 8 submitted his reasonable accommodation request due to his difficulties performing his 9 work duties, Defendant Self asked Plaintiff if any inmates were threatening to assault him. 10 Plaintiff then explained to Defendant Self that his mental health was the issue, and not 11 violence by others. (Id.) Defendant Self then “reported to the Reasonable Accommodation 12 Panel (“RAP”) that he had determined there was no potential for injury or other serious 13 harm regarding Plaintiff’s reasonable accommodation request.” (Id.) Plaintiff alleges 14 “Defendant Self lacked the professional training and medical expertise to propound such 15 an opinion.” (Id.) Plaintiff has failed to allege Defendant Self was responsible for Plaintiff 16 being (1) “intentionally treated differently from others similarly situated, and (2) “there 17 [was] no rational basis for the difference in treatment.” Olech, 528 U.S. at 564. Therefore, 18 Plaintiff has failed to state a cognizable Equal Protection claim against Defendant Self. 19 4. Defendant Mondet and Covello 20 Plaintiff’s allegations as to Defendant Mondet and newly named Defendant Covello 21 are also insufficient to survive a Motion to Dismiss. Plaintiff has alleged Defendants 22 Mondet and Covello were “aware of Defendant Khder’s unfair discriminatory practices 23 towards Plaintiff” and they “intentionally acquiesced in this unfair and unequal treatment 24 that Defendant Khder was engaging in.” (Doc. No. 52 at 29.) This “bald allegation of 25 impermissible motive . . . is conclusory and is therefore not entitled to an assumption of 26 truth.” Moss v. United States Secret Serv., 572 F.3d 962, 970 (9th Cir. 2009). Thus, Plaintiff 27 once again has not sufficiently “demonstrated that [he] has been intentionally treated 28 1 differently from others similarly situated and that there is no rational basis for the 2 difference in treatment.” Olech, 528 U.S. at 564. 3 5. Defendants Voong and Murphy 4 Plaintiff has not adequately pled an Equal Protection claim against Defendants 5 Voong and Murphy. Plaintiff alleged Defendants Voong and Murphy, in denying 6 Plaintiff’s inmate appeal, “acknowledged that Plaintiff was otherwise qualified to 7 participate in the college and tutor programs. However, they held that his placement in the 8 EOP and/or his ‘therapeutic activities’ took precedent over these other programs that he 9 wanted to participate in at the RJDCF.” (Doc. No. 52 at 20.) It is unnecessary to analyze 10 the “rational basis” prong of the Equal Protection claim because Plaintiff has not 11 adequately pointed to “similarly situated” individuals. Nonetheless, for Equal Protection 12 claims arising under the “class of one” theory such as this one, Plaintiff must allege there 13 was no “rational basis for the difference in treatment” when Defendants denied Plaintiff 14 participation in the voluntary college program. Olech, 528 U.S. at 564. Here, Defendants’ 15 “rational basis” for the distinction in treatment may be evidenced by Defendants Voong 16 and Murphy stating, “Plaintiff’s ‘therapeutic activities’ took precedent over these other 17 programs.” (Doc. No. 54 at 16.) To that end, “. . . equal protection is not a license for courts 18 to judge the wisdom, fairness, or logic of legislative choices.” Fcc v. Beach Commc’ns, 19 508 U.S. 307, 313 (1993). The Court will uphold a “statutory classification . . . against [an] 20 equal protection challenge if there is any reasonably conceivable state of facts that could 21 provide a rational basis for the classification.” Id. Further, “[t]o prevail on the rational basis 22 element, a ‘class of one’ plaintiff must ‘negative any reasonably conceivable state of facts 23 that could provide a rational basis for the classification.” Wilson, 2009 U.S. Dist. LEXIS 24 93282, 2009 WL 3233879, at 8 (quoting Lauth, 424 F.3d 631, 634 (7th Cir. 2005)). Here, 25 Plaintiff has not adequately alleged that Defendants acted with ill will or because of 26 Plaintiff’s mental illness; therefore, Plaintiff’s therapeutic activities taking precedence over 27 the college program is reasonable. 28 1 Accordingly, the Court RECOMMENDS Defendants’ Motion to Dismiss regarding 2 Plaintiff’s Equal Protection Claim be GRANTED with leave to amend. 3 B. Defendants’ Motion to Dismiss all Claims Against Defendants Voong and Murphy 4 5 Defendants argue that claims against Defendants Voong and Murphy should be 6 dismissed because Plaintiff “expressly premises his claims against those Defendants on 7 their alleged failure to investigate the allegations in his administrative appeal.” (Doc. No. 8 49 at 7.) Plaintiff contends that “it is immaterial that their liability is premised on their 9 failure to investigate the allegations in Plaintiff’s administrative appeal.” (Doc. No. 54 at 10 17.) 11 Defendants Voong and Murphy denied Plaintiff’s inmate appeal, and, in turn, 12 Plaintiff alleges that Defendants “failed to undertake a fact specific investigation to gather 13 significant information from qualified experts to determine what constituted a reasonable 14 accommodation for Plaintiff’s mental disability.” (Id. at 20.) Defendants Voong and 15 Murphy’s reaction to Plaintiff’s inmate appeal cannot be the sole basis of liability for 16 Plaintiff’s claims. “[A prison] grievance procedure is a procedural right only; it does not 17 confer any substantive right upon the inmates. Hence, it does not give rise to a protected 18 liberty interest requiring the procedural protections envisioned by the Fourteenth 19 Amendment.” Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993). Further, “because 20 inmates have no constitutional right to a prison grievance system, the actions of the prison 21 officials in reviewing his internal appeal cannot create liability under § 1983.” Ramirez v. 22 Galaza, 334 F.3d 850, 860 (9th Cir. 2003). Accordingly, Plaintiff’s claims against 23 Defendants Voong and Murphy do not have a constitutional basis for liability. 24 The Court RECOMMENDS that Defendants’ Motion to Dismiss Plaintiff’s claims 25 against Defendants Voong and Murphy be GRANTED based on Defendants’ liability 26 being premised on their failure to investigate Plaintiff’s administrative appeal. 27 28 1 C. Defendants’ Motion to Strike Punitive Damages Under the Rehabilitation Act and the Americans with Disabilities Act 2 3 Defendants’ seek to strike Plaintiff’s punitive damages claim under the ADA and 4 RA, arguing punitive damages are not available under Title II of the ADA or § 504 of the 5 RA. (Doc. No. 49 at 14.) Importantly, Plaintiff contends he is not seeking punitive damages 6 under the RA and ADA. (Doc. No. 54 at 13.) The Supreme Court has ruled that “punitive 7 damages may not be awarded in a private action brought under 202 of the ADA and 504 8 or the Rehabilitation Act.” Barnes v. Gorman, 536 U.S. 181, 183 (2002). For this reason 9 alone, the Court would recommend granting the Defendants’ Motion to Strike. However, 10 the Court does not need to reach this conclusion because Plaintiff voluntarily abandoned 11 punitive damages under the RA and the ADA. In Plaintiff’s Second Amended Complaint 12 “SAC”, he seeks “punitive damages in the amount of $50,000 dollars each against 13 Defendants . . . for their willful, intentional, malicious, wanton, and/or conscious disregard 14 of plaintiff’s legal rights.” (Doc. No. 46 at 19). In Plaintiff’s Motion for Leave to File Third 15 Amended Complaint, Plaintiff has amended the aforementioned punitive damages claim 16 and Plaintiff now seeks “exemplary damages against each named Defendant found to have 17 willfully, intentionally, wantonly, and/or consciously disregarded Plaintiff’s legal rights 18 under the Fourteenth Amendment . . . .” (Doc. No. 52 at 34.) Accordingly, Defendants’ 19 substantive arguments for Motion to Strike the punitive damages under the RA and ADA 20 are moot. 21 The Court RECOMMENDS that Defendants’ Motion to Strike Plaintiff’s punitive 22 damages under the RA and the ADA be DENIED AS MOOT based on Plaintiff voluntarily 23 amending his punitive damages request under the RA and ADA. 24 D. Plaintiff’s Motion for Leave to File a Third Amended Complaint 25 Plaintiff has filed a Motion for Leave to File a Third Amended Complaint under 26 Rule 15(a). (Doc. No. 52.) Plaintiff seeks to clarify the deficiencies in the Second 27 Amended Complaint and an opportunity to address legal arguments raised in Defendants’ 28 Motion to Dismiss. (Id. at 2.) Having reviewed the Complaint, the Court recommends 1 Plaintiff be granted Leave to Amend consistent with the Court’s ultimate Order on the 2 pending Motion to Dismiss. 3 Rule 15(a)(1) of the Federal Rules of Civil Procedure allows a party to amend its 4 pleadings once as a matter of course within “21 days of serving it,” or “if the pleading is 5 one to which a responsive pleading is required, 21 days after service of a responsive 6 pleading or 21 days after service of a [motion to dismiss], whichever is earlier.” The Ninth 7 Circuit has noted “on several occasions . . . that the ‘Supreme Court has instructed the 8 lower federal courts to heed carefully the command of Rule 15(a), F[ed]. R. Civ. P., by 9 freely granting leave to amend when justice so requires.’” Gabrielson v. Montgomery Ward 10 & Co., 785 F.2d 762, 765 (9th Cir. 1986) (quoting Howey v. United States, 481 F.2d 1187, 11 1190 (9th Cir. 1973) (citations omitted)). Thus, “[R]ule 15’s policy of favoring 12 amendments to pleadings should be applied with ‘extreme liberality.’” United States v. 13 Webb, 655 F.2d 977, 979 (9th Cir. 1981) (citation omitted). 14 Based on the procedural history of this case, Plaintiff filed his response to 15 Defendants’ motion under Rule 12(b) within the time frame directed by the Court. (Doc. 16 No. 53.) Defendants’ non-opposition to Plaintiff’s motion also bears upon the Court’s 17 recommendation here. The Court RECOMMENDS that Plaintiff’s Motion for Leave to 18 File a Third Amended Complaint be GRANTED. 19 E. Plaintiff’s Motion for Leave to Exceed Page Limits 20 Plaintiff seeks to exceed the Southern District Court’s page limit for pro se prisoner 21 complaints by three pages to meet the requirements to state a plausible claim. “Given the 22 district court’s inherent power to control their dockets, whether to grant leave to exceed the 23 page limits set forth in the Civil Local Rules appears to be at the full discretion of the 24 court.” Traylor Bros., Inc. v. San Diego Unified Port Dist., No. 08-cv-1019-L(WVG), 2012 25 U.S. Dist. LEXIS 40977, at *6 (S.D. Cal. Mar. 26, 2012) (citing United States v. W.R. 26 Grace, 526 F.3d 499, 509 (9th Cir. 2008). Due to only the slight increase in pages, in 27 exercising the Court’s discretion, the Court grants Plaintiff’s motion to exceed the page 28 1 || limit by three pages in compliance with Civl. R. 7.1(h). The Court RECOMMENDS that 2 || Plaintiff's Motion for Leave to Exceed Page Limits be GRANTED. 3 V. CONCLUSION 4 Based on the foregoing, this Court RECOMMENDS that: 5 1. Defendants’ Motion to Dismiss (Doc. No. 49) is GRANTED with regard to 6 || Plaintiff's Equal Protection claim. Thus, the Court RECOMMENDS that Plaintiff's Equal 7 || Protection claim is DISMISSED from this case with prejudice. 8 2. Defendants’ Motion to Strike (Doc. No. 49) be DENIED IN PART AS MOOT 9 || with respect to Plaintiff's punitive damages claim. 10 3. Plaintiffs Motion for Leave to File Third Amended Complaint (Doc. No. 52) 11 |}be GRANTED. Plaintiff should be advised that the Third Amended Complaint he files 12 ||shall not include punitive damages under the Rehabilitation Act and the Americans with 13 || Disabilities Act. 14 4. Plaintiffs Motion for Leave to Increase Page Limit (Doc. No. 52) be 15 GRANTED. 16 This Report and Recommendation is submitted to the United States District Judge 17 || assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1) and Federal Rule 18 || of Civil Procedure 72(b). 19 IT IS ORDERED that no later than August 23, 2020 any party to this action may 20 || file written objections with the Court and serve a copy on all parties. The document should 21 captioned “Objections to Report and Recommendation.” No reply briefs in response 22 the Objections will be accepted. 23 IT IS SO ORDERED. 24 DATED: July 23, 2020 2 UN Ss 26 Hon. William V. Gallo 7 United States Magistrate Judge 28