-AJB Thorns v. Ryan et al, No. 3:2007cv00218 - Document 98 (S.D. Cal. 2009)
Court Description: ORDER granting in part and denying in part 86 Motion to Dismiss. Defendants' motion to dismiss Plaintiff's request for injunctive relief is granted. The Court orders Defendants OConnell, Casillas, Borem and Whitman to file their Answer to the remaining claims remaining in Plaintiffs Second Amended Complaint within thirty (30) days of this Order. If Plaintiff has any additional facts on any of the dismissed claims, he may file a motion for reconsideration, submitting new facts or new law, within thirty (30) days of this Order. Signed by Judge Marilyn L. Huff on 09/28/09. (All non-registered users served via U.S. Mail Service).(ag) (jrl).
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-AJB Thorns v. Ryan et al Doc. 98 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BRUCE THORNS, CASE NO. 3:07-CV-00218-H-AJB Plaintiff, 12 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT vs. 13 14 S. RYAN, et al., Defendants. 15 16 17 On February 1, 2007, Plaintiff Bruce Thorns, a state prisoner incarcerated at California 18 State Prison-Sacramento located in Represa, California, proceeding pro se, filed a complaint 19 pursuant to 42 U.S.C. § 1983 against the warden and numerous correctional officers at 20 Calipatria State Prison, the institution where Plaintiff was confined at the time of the events 21 giving rise to the complaint in this case. (Doc. No. 1.) On July 3, 2007, Defendants filed a 22 motion to dismiss Plaintiff's complaint for failure to exhaust administrative remedies. (Doc. 23 No. 32.) On September 21, 2007, Defendants Ryan and Alvarez filed another motion to 24 dismiss Plaintiff’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 25 51.) On February 26, 2008, this Court issued an Order denying motion to dismiss for failure 26 to exhaust, and granting with partial leave to amend motion to dismiss by Defendants Ryan and 27 Alvarez. (Doc. No. 58.) 28 On April 15, 2008, Plaintiff filed a First Amended Complaint (“FAC”) alleging -1- 07cv218 Dockets.Justia.com 1 excessive force, retaliation, due process, conspiracy and deprivation of personal property 2 claims against twenty-five Defendants. (Doc. No. 61.) On May 15, 2008, all served 3 twenty-three Defendants1 filed a motion to dismiss the FAC. (Doc. No. 62.) Plaintiff filed an 4 opposition to Defendants’ motion on June 12, 2008. (Doc. No. 65.) Defendants filed a reply 5 on June 19, 2008. (Doc. No. 66.) Defendants’ motion to dismiss was granted in part and 6 denied in part by the Report and Recommendation (“R&R”) on August 1, 2008. (Doc. No. 7 67.) The R&R was adopted on January 23, 2009 and the Plaintiff was granted leave to amend. 8 (Doc. No. 71.) 9 On March 9, 2009, Plaintiff filed a second amended complaint (“SAC”) pursuant to 42 10 U.S.C. § 1983, alleging excessive force, retaliation, due process, conspiracy and deprivation 11 of personal property claims against thirteen Defendants: R.A. Davis, B.C. Reis, T.E. Borem, 12 A. Casillas, S. Ritter, S. Crittendon, A. Elizondo, M. Ramirez, S. Ryan, M.W. O’Connell, J. 13 Rivas, Z. Limas, and M. Whitman. (Doc. No. 77.) On April 22, 2009, Defendants filed a 14 motion to dismiss the SAC on the grounds that: (1) Defendants are immune from liability for 15 damages in their official capacities under the Eleventh Amendment; (2) Plaintiff has failed to 16 state a retaliation, due process, conspiracy or deprivation of property claim; and (3) Defendants 17 are protected by qualified immunity. (Doc. No. 86.) Defendants also contend that the 18 Plaintiff’s request for injunctive relief is moot. (Id.) Plaintiff filed a response in opposition 19 on June 19, 2008. (Doc. No. 92.) 20 After due consideration, the Court GRANTS Defendants’ motion to dismiss Plaintiff’s 21 SAC as to all Defendants to the extent that Plaintiff seeks monetary damages against them in 22 their official capacities. The Court also GRANTS Defendants’ motion to dismiss Plaintiff’s 23 claims of due process violations, conspiracy, and deprivation of property. The Court GRANTS 24 Defendants’ motion to dismiss Plaintiff’s retaliation claim as to Defendants Ryan, Ries, 25 Ramirez and Elizondo. The Court DENIES Defendants’ motion to dismiss Plaintiff’s 26 retaliation claim as to Defendants Borem and Whitman. Finally, the Court GRANTS 27 28 1 Plaintiff named twenty-five Defendants in his FAC, however, two of the named Defendants were deceased at the time and had not been served. (See Doc. Nos. 6, 8.) -2- 07cv218 1 Defendants’ motion to dismiss Plaintiff’s request for injunctive relief as moot. Background 2 3 The SAC alleges that prison officials used excessive force on Plaintiff during an 4 October 13, 2004 altercation between prisoners and correctional officers at Calipatria State 5 Prison. (Doc. No. 77, ¶¶ 21-23.) Plaintiff claims that Defendant O’Connell struck Plaintiff 6 with a baton on the right ankle, and then on the left side of the head, which rendered Plaintiff 7 unconscious, left a large hematoma, and caused some hearing loss in his left ear. (Id. ¶¶ 22- 8 23.) Plaintiff alleges that when Plaintiff regained consciousness, he was on the ground in 9 handcuffs, and Defendant Casillas sprayed him in the face with Oleoresin Capsicum (“OC”), 10 also known as pepper spray. (Id. ¶ 24.) The SAC alleges that Defendant O’Connell struck 11 Plaintiff’s upper and lower body with a baton while making racial and discriminatory remarks, 12 until Plaintiff’s right ankle broke. (Id. ¶ 27.) Plaintiff’s SAC alleges that he was later x-rayed 13 at the hospital and treated by medical staff with a temporary cast. (Id. ¶ 31.) 14 Plaintiff alleges that from then on, he was harassed and threatened by various officers. 15 (Id. ¶¶ 33-52.) Plaintiff also alleges Defendants conspired and retaliated against him for 16 exercising his constitutional rights by placing him in administrative segregation, taking away 17 his good time credits, and transferring him to a different prison. (Id.) Plaintiff also alleges 18 Defendant Borem deprived him of his property when Borem ordered to take away Plaintiff’s 19 television and radio. (Id. ¶ 45.) 20 Discussion 21 I. Eleventh Amendment 22 Defendants seek dismissal of Plaintiff’s claims to the extent that he is suing them in 23 their “official capacity.” (Doc. No. 87 at 6.) While the Eleventh Amendment bars a prisoner’s 24 section 1983 claims against a state actor sued in his official capacity, it does not bar damage 25 actions against a state official sued in his personal or individual capacity. Hafer v. Melo, 502 26 U.S. 21, 31 (1991); Will v. Michigan Dep’t of State Police, 491 U.S. 58, 70–71 (1989); Pena 27 v. Gardner, 976 F.2d 469, 472-73 (9th Cir. 1992). 28 Here, Plaintiff brings this section 1983 suit against Defendants in both their official and -3- 07cv218 1 individual capacities. (Doc. No. 77, ¶ 20.) The Eleventh Amendment imposes no bar to 2 Plaintiff’s damages action against Defendants for acts alleged to have been taken in their 3 personal capacity. See Stivers v. Pierce, 71 F.3d 732, 749 (9th Cir. 1995). The Supreme Court 4 has made it clear that a plaintiff can seek damages in a section 1983 action if he alleges facts 5 sufficient to show personal liability through individual actions or omissions, taken under color 6 of state law, which cause the deprivation of Plaintiff’s constitutional rights. Hafer, 502 U.S. 7 at 25. 8 Accordingly, the Court GRANTS Defendants’ Motion to Dismiss on Eleventh 9 Amendment grounds only to the extent that Plaintiff seeks monetary damages against them in 10 11 their official capacities. II. Motion to Dismiss Pursuant to Rule 12(b)(6) 12 Defendants seek dismissal of Plaintiff’s SAC pursuant to the Federal Rule of Civil 13 Procedure 12(b)(6) for failure to state a claim under 42 U.S.C. § 1983. (Doc. No. 87 at 7.) To 14 survive a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), Plaintiff must 15 allege “enough facts to state a claim to relief that is plausible on its face.” Lazy Y. Ranch v. 16 Behrens, 546 F.3d 580, 588 (9th Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 17 544, 570 (2007)). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not 18 need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds’ of his 19 ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of 20 the elements of a cause of action will not do.” Twombly, 550 U.S. 544, 554. A complaint 21 does not “suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” 22 Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly at 556). “Factual 23 allegations must be enough to raise a right to relief above the speculative level.” Twombly, 24 550 U.S. at 554 (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 25 235–36 (3d ed. 2004)). 26 Generally, the allegations in the complaint are accepted as true and construed in the 27 light most favorable to the plaintiff. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 28 (9th Cir. 2001). However, conclusory allegations of law and unwarranted inferences are -4- 07cv218 1 insufficient to defeat a motion to dismiss for failure to state a claim.” Epstein v. Wash. Energy 2 Co., 83 F.3d 1136, 1140 (9th Cir.1996); see also Twombly, 550 U.S. at 555. 3 In addition, factual allegations asserted by pro se petitioners, “however inartfully 4 pleaded,” are held “to less stringent standards than formal pleadings drafted by lawyers.” 5 Haines v. Kerner, 404 U.S. 519-20 (1972). Thus, where a plaintiff appears in propria persona 6 in a civil rights case, the Court must construe the pleadings liberally and afford plaintiff any 7 benefit of the doubt. See Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th 8 Cir. 1988). Nevertheless, it is not proper for the court to assume that “the [plaintiff] can prove 9 facts which [he or she] has not alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State 10 Council of Carpenters, 459 U.S. 519, 526 (1983). 11 To state a claim under section 1983, Plaintiff must plead two essential elements: (1) that 12 the conduct complained of was committed by a person acting under color of state law; and (2) 13 that this conduct deprived a person of rights, privileges, or immunities secured by the 14 Constitution or laws of the United States. Parrat v. Taylor, 451 U.S. 527, 536 (1981) 15 (overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 330-31 (1986)). 16 Defendants argue that Plaintiff has not met the second requirement, because the SAC fails to 17 show a denial of Plaintiff’s constitutional rights. 18 A. Excessive Force 19 Plaintiff’s SAC alleges that Defendants O’Connell and Casillas violated his Eighth 20 Amendment right to be free from excessive force. (SAC ¶ 68.) Plaintiff has alleged sufficient 21 facts to state an excessive force claim against Defendants O’Connell and Casillas. Defendants 22 do not move to dismiss this claim. Accordingly, Plaintiff can proceed with his excessive force 23 claim. 24 B. Claim of Retaliation. 25 Plaintiff argues that Defendants retaliated against him for exercising his constitutional 26 rights. (Doc. 77, ¶¶ 47, 50.) In order to sue prison officials for First Amendment retaliation 27 under section 1983, Plaintiff must satisfy five elements: “(1) an assertion that a state actor took 28 some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and -5- 07cv218 1 that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the 2 action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 3 F.3d 559, 567-68 (9th Cir. 2005). Prisoners have a First Amendment right to petition the 4 government through prison grievance procedures. Id. at 567. The Court evaluates a claim for 5 retaliation in light of the deference that must be accorded to prison officials. Pratt v. Rowland, 6 65 F.3d 802, 806 (9th Cir. 1995). Plaintiff must establish a link between the exercise of his 7 constitutional rights and the allegedly retaliatory action. Id. at 807. 8 1. Claims Against Defendants Ryan, Ries, Ramirez and Elizondo 9 Although Plaintiff alleges that Defendants Ryan, Ries, Ramirez and Elizondo retaliated 10 against him for exercising his constitutional rights, and that the retaliatory action did not 11 advance any legitimate penological goals, (Doc. No. 77, ¶¶ 47, 50.), Plaintiff’s conclusory 12 allegations will not suffice. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Plaintiff fails to 13 allege specific facts supporting his claim of retaliation by Defendants. 14 More specifically, as to Defendants Ryan, Ries, Ramirez and Elizondo, the SAC fails 15 to allege specific facts to establish that Plaintiff’s exercise of any protected conduct was the 16 motivation for Defendants’ adverse actions. See Rhodes, 408 F.3d at 567-68. The SAC fails 17 to allege specific facts to show that any adverse action taken by these Defendants had the 18 effect of chilling Plaintiff’s exercise of any constitutional right. See id. Finally, the SAC fails 19 to allege any specific facts to show that Defendants’ adverse actions did not advance a 20 legitimate correctional goal. Id. Instead, the SAC does no more than plead the Rhodes 21 elements as conclusions. 22 Plaintiff’s conclusory allegations as to the crucial elements of retaliation will not 23 suffice, and the Court may not supply them. Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th 24 Cir. 1982). The Court will not assume that Plaintiff can prove facts which he failed to allege. 25 See Associated Gen. Contractors of Cal., Inc., 459 U.S. at 526. 26 2. Claims Against Defendants Borem and Whitman 27 Plaintiff alleges that Defendant Borem retaliated against him for filing a complaint 28 against Defendants O’Connell and Casillas by ordering to take Plaintiff’s television and radio. -6- 07cv218 1 (Doc. No. 77, ¶¶ 17, 45.) Plaintiff also alleges that Defendant Whitman caused Plaintiff to be 2 moved to a higher security prison for filing too many grievances. (Id. ¶ 52.) 3 Plaintiff has alleged a cognizable First Amendment retaliation claim against Defendants 4 Borem and Whitman. See Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir.2001) (holding 5 that “repeated threats of transfer because of [the plaintiff’s] complaints about the 6 administration of the [prison] library” were sufficient to ground a retaliation claim); Hines v. 7 Gomez, 108 F.3d 265, 269 (9th Cir. 1997) (holding that the retaliatory imposition of a ten-day 8 period of confinement and loss of television--justified by a correctional officer’s false 9 allegation that the plaintiff breached prison regulations--violated the First Amendment); Pratt 10 v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995) (“[I]t would be illegal for [corrections] officials 11 to transfer ... [plaintiff] solely in retaliation for his exercise of protected First Amendment 12 rights.”). 13 Defendants argue that because Plaintiff did not allege that Defendants’ adverse action 14 had the effect of chilling Plaintiff’s exercise of his constitutional rights, Plaintiff’s retaliation 15 claim must fail. (Doc. No. 87 at 9.) These issues are better addressed in a motion for summary 16 judgment, as Plaintiff has alleged sufficient facts to show harm in his SAC. 17 Accordingly, Defendants’ motion to dismiss Plaintiff’s retaliation claim is GRANTED 18 as to Defendants Ryan, Ries, Ramirez and Elizondo. Defendants’ motion to dismiss Plaintiff’s 19 retaliation claim is DENIED as to Defendants Borem and Whitman. 20 C. Due Process Claim. 21 Plaintiff alleges that Defendants violated his due process rights. (Doc. No. 77, ¶¶ 37, 22 39.) A prisoner is entitled to certain due process protections when he is charged with a 23 disciplinary violation. Serrano v. Francis, 345 F.3d 1071, 1077-78 (9th Cir. 2003) (citing 24 Wolff v. McDonnell, 418 U.S. 539, 564-571 (1974)). Prisoners facing a disciplinary hearing 25 are entitled to: (1) written notice of the charges at least 24 hours in advance of the hearing; (2) 26 a written statement indicating upon what evidence the fact finders relied and the reasons for 27 the disciplinary action; (3) the opportunity to call witnesses and present documentary evidence 28 when doing so will not be unduly hazardous to institutional safety or correctional goals; and -7- 07cv218 1 (4) an impartial fact finder. Wolff, 418 U.S. at 564-71. These procedural safeguards apply 2 only where “the disciplinary action implicates a protected liberty interest in some ‘unexpected 3 matter’ or imposes an ‘atypical and significant hardship on the inmate in relation to the 4 ordinary incidents of prison life.’” Serrano, 345 F.3d at 1078 (quoting Sandin v. Connor, 515 5 U.S. 472, 484 (1995)). 6 Plaintiff alleges that Defendant Ryan violated Plaintiff’s due process rights at the 7 disciplinary hearing, because Ryan was not impartial. (Doc. No. 77, ¶ 37.) However, before 8 Plaintiff can allege a procedural due process violation, he must first show that he has a 9 protected liberty interest which requires the procedural safeguards. See Sandin, 515 U.S. at 10 484. Prisoners do not have a liberty interest in remaining within the general prison population. 11 McFarland v. Cassady, 779 F.2d 1426, 1427 (9th Cir. 1986.) Accordingly, to the extent 12 Plaintiff alleges a liberty interest in being free from administrative segregation, his claim fails. 13 To the extent Plaintiff’s claim is based on the loss of 30 days of good time credit, his claim is 14 barred, because it implies the invalidity of his conviction or sentence. See Edwards v. Balisok, 15 520 U.S. 641, 647-48 (1997); Heck v. Humphry, 512 U.S. 477, 486-87 (1994). Accordingly, 16 the Court GRANTS Defendants’ motion to dismiss Plaintiff’s due process claim. 17 D. Conspiracy Claim 18 Plaintiff alleges that Defendants conspired against him. (Doc. No. 77, ¶¶11-14.) To 19 allege a claim of conspiracy under section 1983, Plaintiff must allege facts with sufficient 20 particularity to show an agreement or a meeting of the minds to violate Plaintiff’s 21 constitutional rights. Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998); Woodrum v. 22 Woodward County, 866 F.2d 1121, 1126 (9th Cir. 1989). “Vague and conclusory allegations 23 of official participation in civil rights violations are not sufficient to withstand a motion to 24 dismiss.” Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982); Aldabe v. Aldabe, 616 25 F.2d 1089, 1092 (9th Cir. 1980) (conclusory allegations of conspiracy insufficient to support 26 a claim under section 1983). Here, Plaintiff has failed to allege any facts which show an 27 agreement or meeting of the minds to violate any of Plaintiff’s constitutional rights. 28 Woodrum, 866 F.2d at 1126; Aldabe, 616 F.2d at 1092; see also Ashcroft v. Iqbal, 129 S.Ct. -8- 07cv218 1 1937 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Accordingly, the Court 2 GRANTS Defendants’ motion to dismiss Plaintiff’s conspiracy claims pursuant to Fed. 3 R.Civ.P. 12(b)(6). 4 D. Deprivation of Property 5 Plaintiff alleges that Defendant Borem gave an order to confiscate Plaintiff’s television 6 and radio in violation of Plaintiff’s rights. (Doc. No. 77, ¶ 17.) Plaintiff’s claim that he was 7 deprived of his personal property is not redressable under section 1983, because California 8 provides an adequate post-deprivation remedy. See Hudson v. Palmer, 468 U.S. 517, 533 9 (1984). California law provides that public employees are liable for injuries to prisoners 10 proximately caused by the employees’ negligent or wrongful acts or omissions. See Cal. Gov’t 11 Code § 844.6. California Government Code sections 900-915 set out the procedure for making 12 claims against public entities. California law thus provides an adequate state post-deprivation 13 remedy for any personal property plaintiff may have lost due to prison officials’ negligence. 14 Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam) (citing Hudson, 468 U.S. at 15 533). Because Plaintiff has an adequate state remedy to redress his loss, he does not have a 16 cognizable federal civil rights claim of deprivation of property. Accordingly, the Court 17 GRANTS Defendants’ motion to dismiss Plaintiff’s claim of deprivation of property. 18 III. Injunctive Relief 19 Plaintiff seeks injunctive relief in the form of an order requiring his transfer from 20 Calipatria state prison. (Doc. No. 77, ¶ 63.) Plaintiff also seeks an injunction to stop 21 Defendants from using further excessive force on Plaintiff, or discriminating against Plaintiff. 22 (Id. ¶ 64.) Because Plaintiff has been transferred away from Calipatria and is no longer in 23 contact with any of the Defendants, his request is moot. See Flast v. Cohen, 392 U.S. 83, 95 24 (1968) (“[N]o justiciable controversy is presented when ... the question sought to be 25 adjudicated has been mooted by subsequent developments.”). Accordingly, the Court 26 GRANTS Defendants’ motion to dismiss Plaintiff’s request for injunctive relief. 27 28 IV. Qualified Immunity Defendants argue that they are protected by qualified immunity on Plaintiff’s claims of -9- 07cv218 1 retaliation, due process, conspiracy, and deprivation of property. (Doc. No. 87 at 15.) 2 “Qualified immunity shields § 1983 defendants ‘[f]rom liability for civil damages insofar as 3 their conduct does not violate clearly established statutory or constitutional rights of which a 4 reasonable person would have known.’” Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 5 2001) (en banc) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (alteration in 6 original)). 7 Until recently, claims of qualified immunity required a two step analysis. As a 8 threshold matter, the court had to consider whether the facts alleged, taken in the light most 9 favorable to the party asserting the injury, show that the officer’s conduct violated a 10 constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001). Second, if the plaintiff 11 satisfied this first step, the court had to decide whether the right at issue was “clearly 12 established” at the time of defendant's alleged misconduct. Id. If the allegations did not 13 establish the violation of a constitutional right, “there [wa]s no necessity for further inquiries 14 concerning qualified immunity.” Id. The Supreme Court recently reconsidered Saucier’s 15 mandatory “rigid order of battle” and concluded that “while the sequence set forth [in Saucier] 16 is often appropriate, it should no longer be regarded as mandatory. Pearson v. Callahan, 129 17 S.Ct. 808, 818 (2009). Therefore, the Court can exercise its discretion in deciding which of 18 the two prongs of the qualified immunity analysis should be addressed first in light of the 19 circumstances of the case. 20 Defendants urge the Court to first consider whether Plaintiff has articulated a 21 constitutional violation. (Doc. No. 87 at 16.) Defendants argue that Plaintiff failed to state a 22 claim of retaliation, due process violation, conspiracy, or deprivation of property, and therefore 23 the Court need not further inquire into whether the right at issue is clearly established. (Id. at 24 17.) As discussed above, Plaintiff failed to state a claim of due process violation, conspiracy, 25 or deprivation of property with regard to all Defendants. Plaintiff failed to state a claim of 26 retaliation with regard to Defendants Ryan, Ries, Ramirez, and Elizondo. Because the Court 27 grants defendants’ motion to dismiss these claims, it does not need to further analyze qualified 28 immunity. - 10 - 07cv218 1 However, Plaintiff has stated a cognizable claim for retaliation against Defendants 2 Borem and Whitman. The Court next must consider whether the right that Defendants 3 allegedly violated had been clearly established--that is, whether “it would be clear to a 4 reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier, 533 5 U.S. at 201 (citing Wilson v. Layne, 526 U.S. 603, 615 (1999)). If an officer makes a 6 reasonable mistake as to what the law requires, the officer is entitled to immunity. Id. at 205. 7 The prohibition against retaliatory punishment against a prisoner for exercising his First 8 Amendment rights is clearly established law for qualified immunity purposes. Rhodes v. 9 Robinson, 408 F.3d 559, 569-70 (9th Cir. 2005). 10 Because Plaintiff has stated a retaliation claim against Defendants Borem and Whitman 11 for exercising his First Amendment rights, the Court declines to find that Defendants are 12 protected by qualified immunity at this time. If in the course of discovery Defendants find that 13 no violation of a clearly established right occurred, Defendants may raise their qualified 14 immunity arguments in a motion for summary judgment. Conclusion 15 16 For the reasons stated above, the Court hereby: 17 (1) GRANTS Defendants’ motion to dismiss Plaintiff’s complaint as to all Defendants 18 on Eleventh Amendment grounds only to the extent that Plaintiff seeks monetary damages 19 against Defendants in their official capacities; 20 21 22 23 24 25 26 27 28 (2) GRANTS Defendants’ motion to dismiss with prejudice Plaintiff’s claim of retaliation as to Defendants Ryan, Ries, Ramirez and Elizondo; (3) DENIES Defendants’ motion to dismiss Plaintiff’s claim of retaliation as to Defendants Borem and Whitman; (4) GRANTS Defendants’ motion to dismiss Plaintiff’s claim of due process violation as to all Defendants; (5) GRANTS Defendants’ motion to dismiss Plaintiff’s claim of conspiracy as to all Defendants; (6) GRANTS Defendants’ motion to dismiss Plaintiff’s claim of deprivation of property - 11 - 07cv218 1 as to all Defendants; 2 (7) GRANTS Defendants’ motion to dismiss Plaintiff’s request for injunctive relief; and 3 (8) ORDERS Defendants O’Connell, Casillas, Borem and Whitman to file their Answer 4 to the remaining claims remaining in Plaintiff’s SAC within thirty (30) days of this Order. 5 If Plaintiff has any additional facts on any of the dismissed claims, he may file a motion 6 for reconsideration, submitting new facts or new law, within thirty (30) days of this Order. 7 8 IT IS SO ORDERED. DATED: September 28, 2009 ________________________________ MARILYN L. HUFF, District Judge UNITED STATES DISTRICT COURT 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 12 - 07cv218
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