-RBB Franklin v. Scribner et al, No. 3:2009cv01067 - Document 74 (S.D. Cal. 2011)

Court Description: ORDER granting in part and denying in part 53 Motion to Dismiss. The Court grants Defendants' motion and Dismisses Plaintiff's 8/11/2007 & 9/16/2007 First Amendment retaliation claims without prejudice. Defendant Maciel is dismissed from this action. The Court denies Defendants' motion to dismiss Plaintiff's First Amendment retaliation claims. The Court Grants Defendants' motion and Dismisses Plaintiff's Eighth Amendment claim without prejudice and with leave to amend. The Court Grants Defendants' motion and Dismisses Plaintiff's claim for monetary damages against Defendants in their official capacities and Denies Defendants' motion to dismiss Plaintiff's request for injunctive relief. Th e Court Grants Plaintiff 30 days from the filing date of this order to file a Fourth Amended Complaint. The Court grants leave to amend only as to Plaintiff's Eighth Amendment claim as alleged against Defendant Small. Plaintiff may not allege any new claims against any additional defendants. Signed by Judge Michael M. Anello on 4/4/2011. (All non-registered users served via U.S. Mail Service)(leh)

Download PDF

-RBB Franklin v. Scribner et al Doc. 74 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 GREGORY A. FRANKLIN, CDCR #E66269, CASE NO. 09cv1067-MMA (RBB) Plaintiff, 13 vs. ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S THIRD AMENDED COMPLAINT 14 15 L.E. SCRIBNER, et al., 16 17 18 19 20 21 22 23 24 25 [Doc. No. 53] Defendants. On May 17, 2010, Plaintiff Gregory Franklin, a state prisoner proceeding pro se, filed a Third Amended Complaint [Doc. No. 23] pursuant to 42 U.S.C. § 1983, alleging violations of his First, Fourteenth, and Eighth Amendment rights. Defendants move to dismiss all claims in the Third Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).1 Defendants also move to dismiss several claims for failure to exhaust administrative remedies. Plaintiff filed an opposition [Doc. No. 66], Defendants filed a reply [Doc. No. 63], and Plaintiff filed a sur-reply [Doc. No. 72]. For the following reasons, the Court GRANTS IN PART and DENIES IN PART Defendants’ motion. /// 26 27 28 1 Defendants move to dismiss Plaintiff’s Fourteenth Amendment claims, however, the Court previously dismissed these claims with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). See July 13, 2010 Order, Doc. No. 24, p.5. Accordingly, as to Plaintiff’s Fourteenth Amendment claims, the Court finds Defendants’ motion moot. -1- 09cv1067 Dockets.Justia.com 1 2 BACKGROUND Plaintiff is a prisoner currently incarcerated at Calipatria State Prison, proceeding pro se and 3 in forma pauperis on his Third Amended Complaint (“TAC”) filed pursuant to 42 U.S.C. § 1983. 4 The following description of events is taken from the TAC and is not to be construed as findings of 5 fact by the Court.2 6 On March 8, 2007, Plaintiff filed a civil rights complaint against thirteen defendants, all of 7 whom were employed at the time by the California Department of Corrections at Calipatria State 8 Prison in Calipatria, California. See Franklin v. Scribner, et al., Civil Case No. 3:07-cv-438-WVG 9 (RBB) (“the 2007 action”). The 2007 action was not resolved until September 29, 2010, when the 10 district court entered summary judgment in favor of defendants as to Plaintiff’s two remaining 11 Eighth Amendment claims. Plaintiff alleges that Defendants in this action have committed various 12 acts of retaliation against him in violation of the First Amendment as a result of him filing and 13 pursuing the 2007 action. 14 Specifically, Plaintiff alleges that immediately after the United States Marshal served his 15 complaint on the thirteen defendants in the 2007 action, between July 14, 2007 and July 19, 2007, 16 Defendants in this case began retaliating in various ways, including taking Plaintiff’s property, 17 fabricating rules violations, and confining Plaintiff to his cell 24 hours per day for numerous days at 18 a time. As a result, Plaintiff claims he suffered weight loss, cut gums, chest pains, headaches, sleep 19 deprivation, and mental anguish which required medication. 20 Plaintiff alleges seven particular instances of retaliation, beginning with the events of July 21 16, 2007, when at approximately 11:00 p.m., Defendant Arias wrote him up for a serious rules 22 violation because he covered up his cell light with a shirt. Defendant Madden acted as the reviewing 23 officer and Defendant Davis was the hearing officer. Plaintiff was found guilty of a serious rules 24 violation for misuse of state property (the shirt). As a result, Plaintiff was confined to his cell for 10 25 days, he lost his phone privileges for 30 days, and he suffered headaches, undue stress, mental 26 27 28 2 Because this case comes before the Court on a motion to dismiss, the Court must accept as true all material allegations in the complaint and must also construe the complaint, and all reasonable inferences drawn therefrom, in the light most favorable to Plaintiff. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). -2- 09cv1067 1 2 anguish, and insomnia. Plaintiff alleges that on July 18 and 25, 2007, several days after being served with the 2007 3 complaint, Defendant Vargas withheld five first class domestic envelopes to which Plaintiff was 4 entitled as an indigent inmate. At the time, the prison was on lock down status and Plaintiff could 5 only communicate through the mail. As a result of Defendant Vargas’ actions, Plaintiff experienced 6 headaches, undue stress, and mental anguish. 7 Plaintiff further alleges that on July 20, 2007, Defendant Arias issued a serious rules 8 violation against Plaintiff for calling him a bad name. Defendant Madden acted as the reviewing 9 officer and Defendant Davis was the hearing officer. Plaintiff was found guilty of a serious rules 10 violation and lost 30 days of good time credits, 30 days of phone privileges, and 10 days of yard 11 time. Plaintiff alleges that the serious rules violation was unwarranted and pursued by Defendants 12 after being served with the 2007 complaint. As a result, Plaintiff had to endure 24 hours per day cell 13 illumination which caused him to suffer headaches, insomnia, irritation, and mental anguish. 14 On August 11, 2007, Plaintiff was one amongst a group of inmates who returned to their 15 cells in an untimely manner after being locked out of the building by Correctional Officer Reyes. 16 Plaintiff received a serious rules violation, although the other inmates did not. Defendant Madden 17 was the reviewing officer, and Lieutenant Duran was the hearing officer. At the hearing, Plaintiff 18 called several witnesses who stated that they were also locked out but did not receive rules 19 violations. The serious rules violation was dismissed. 20 Plaintiff alleges that on August 12, 2007, Defendant Hopper instructed Defendant Trujillo 21 not to allow Plaintiff in the recreation yard and to keep him confined in his cell. Plaintiff requested 22 permission to speak with Defendant Hopper, but Hopper refused. 23 On September 16, 2007, Defendant Maciel allegedly withheld a personal package sent to 24 Plaintiff in retaliation for being sued. The package included, inter alia, denture adhesives. On 25 October 10, 2007, Plaintiff filed an inmate grievance form regarding the package. The grievance 26 was granted, with a response that “the package was brought from receiving and release and brought 27 to A Facility, can’t explain what happen [sic] to the package afterward, will replace within a week.” 28 Plaintiff did not receive his package within a week, and inquired about the package with a -3- 09cv1067 1 correctional officer who in turn inquired with Defendant Maciel, who claimed that the package was 2 not there. After Plaintiff produced his inmate grievance, Defendant Maciel stated that he had taken 3 Plaintiff’s package and sent it back. Plaintiff inquired with the company who sent the package. The 4 company provided documentation indicating that the package had been returned and a replacement 5 package had been sent at the request of officials at Calipatria. The replacement package was also 6 returned to the company, and a second replacement package was sent. Plaintiff finally received the 7 second replacement package several days after it was mailed. 8 9 Plaintiff alleges that he was placed on “C status” on September 18, 2007, for receiving two serious rules violations. Defendant Madden chaired the hearing. As a result, Plaintiff suffered 10 various injuries arising out of his more restrictive custody. Plaintiff claims that one of the serious 11 rules violations was fabricated and the other should not have been considered serious. Plaintiff 12 claims that this action was taken in retaliation for his 2007 lawsuit. 13 Plaintiff also alleges that Defendant Small, in his capacity as Warden of Calipatria, violated 14 his Eighth Amendment right to be free from cruel and unusual punishment by subjecting him to 15 constant illumination in his cell. His cell has a large light right above his bunk, that is never turned 16 off. In May 2008, Defendant Small issued a memorandum stating that inmates may not cover the 17 light, and doing so would result in a serious rules violation and the revocation of privileges. 18 Plaintiff states that he has suffered unrest, irregular sleeping habits, and extreme stress, due to the 19 constant illumination in his cell. 20 Defendants move to dismiss Plaintiff’s claims, arguing that his allegations are insufficient to 21 state any plausible claim for relief. Defendants assert that Plaintiff did not exhaust his 22 administrative remedies with respect to certain claims. Defendants further argue that they are 23 immune from suit in their official capacities and there is no basis for Plaintiff’s request for 24 injunctive relief. Plaintiff opposes the motion. Defendants filed a reply in support of their motion, 25 and Plaintiff filed a sur-reply in support of his opposition. 26 /// 27 /// 28 /// -4- 09cv1067 1 DISCUSSION 2 1. 3 A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure Legal Standard 4 12(b)(6) tests the legal sufficiency of the claims in the complaint. See Davis v. Monroe County Bd. 5 of Educ., 526 U.S. 629, 633 (1999). “The old formula – that the complaint must not be dismissed 6 unless it is beyond doubt without merit – was discarded by the Bell Atlantic decision [Bell Atl. Corp. 7 v. Twombly, 550 U.S. 544, 563 n.8 (2007)].” Limestone Dev. Corp. v. Vill. of Lemont, 520 F.3d 797, 8 803 (7th Cir. 2008). 9 A complaint must be dismissed if it does not contain “enough facts to state a claim to relief 10 that is plausible on its face.” Bell Atl. Corp., 550 U.S. at 570. “A claim has facial plausibility when 11 the plaintiff pleads factual content that allows the court to draw the reasonable inference that the 12 defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, __ U.S.__ , 129 S.Ct. 1937, 1949, 13 173 L. Ed. 2d 868 (2009). The court must accept as true all material allegations in the complaint, as 14 well as reasonable inferences to be drawn from them, and must construe the complaint in the light 15 most favorable to the plaintiff. Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004) 16 (citing Karam v. City of Burbank, 352 F.3d 1188, 1192 (9th Cir. 2003)); Parks Sch. of Bus., Inc. v. 17 Symington, 51 F.3d 1480, 1484 (9th Cir. 1995); N.L. Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th 18 Cir. 1986). 19 2. 20 Where a plaintiff appears in propria persona in a civil rights case, the court must construe the Standards Applicable to Pro Se Litigants 21 pleadings liberally and afford the plaintiff any benefit of the doubt. Karim-Panahi v. Los Angeles 22 Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). The rule of liberal construction is “particularly 23 important in civil rights cases.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). In giving 24 liberal interpretation to a pro se civil rights complaint, courts may not “supply essential elements of 25 claims that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 26 (9th Cir. 1982). “Vague and conclusory allegations of official participation in civil rights violations 27 are not sufficient to withstand a motion to dismiss.” Id.; see also Jones v. Cmty. Redev. Agency, 733 28 F.2d 646, 649 (9th Cir. 1984) (finding conclusory allegations unsupported by facts insufficient to -5- 09cv1067 1 state a claim under § 1983). “The plaintiff must allege with at least some degree of particularity 2 overt acts which defendants engaged in that support the plaintiff’s claim.” Jones, 733 F.2d at 649 3 (internal quotation omitted). 4 The court must give a pro se litigant leave to amend his complaint “unless it determines that 5 the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 6 1122, 1127 (9th Cir. 2000) (en banc) (quotation omitted) (citing Noll v. Carlson, 809 F.2d 1446, 7 1447 (9th Cir. 1987)). Thus, before a pro se civil rights complaint may be dismissed, the court must 8 provide the plaintiff with a statement of the complaint’s deficiencies. Karim-Panahi, 839 F.2d at 9 623-24. But where amendment of a pro se litigant’s complaint would be futile, denial of leave to 10 amend is appropriate. See James v. Giles, 221 F.3d 1074, 1077 (9th Cir. 2000). 11 3. First Amendment Claims 12 Plaintiff alleges seven separately identifiable instances of retaliation. Defendants move to 13 dismiss all seven claims, arguing that two of the claims are unexhausted and all seven claims are 14 insufficiently pled. Plaintiff does not address Defendants’ arguments in his opposition due to his 15 mistaken belief that the Court dismissed his retaliation claims. However, the Court conducted its 16 preliminary review of Plaintiff’s TAC pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and found 17 Plaintiff’s retaliation claims, as well as his Eighth Amendment claim relating to constant cell 18 illumination, sufficiently pled to survive the sua sponte screening required by 28 U.S.C. § 19 1915(e)(2) and 1915A(b). See July 13, 2010 Order, p. 5-7. Thus, Plaintiff’s retaliation claims 20 remain in suit and the Court will address the merits of Defendants’ motion to dismiss these claims 21 below. 22 23 a) Exhaustion of Administrative Remedies Defendants move to dismiss two of Plaintiff’s retaliation claims for failure to exhaust 24 administrative remedies prior to suit as required by 42 U.S.C. § 1997e(a).3 Defendants assert that 25 Plaintiff’s claim relating to events on August 11, 2007 involving Defendants Madden, Reyes, and 26 Duran (“August 11, 2007 retaliation claim”) has not been exhausted. Defendants further assert that 27 3 28 Non-exhaustion under Section 1997e(a) is an affirmative defense which should be brought by defendants in an unenumerated motion to dismiss under Federal Rule of Civil Procedure 12(b). Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.2003). -6- 09cv1067 1 Plaintiff’s claim relating to events on September 16, 2007 involving Defendant Maciel (“September 2 16, 2007 retaliation claim”) has not been exhausted. 3 4 I) Relevant Law The Prison Litigation Reform Act of 1995, Pub.L. No. 104-134, 110 Stat. 1321 (1996) 5 (PLRA), amended Title 42 of the United States Code, section 1997e, to provide that “[n]o action 6 shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal 7 law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative 8 remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The PLRA’s exhaustion 9 requirement is therefore mandatory, and no longer left to the discretion of the district court. 10 Woodford v. Ngo, 548 U.S. 81, 85 (2006) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)). The 11 PLRA’s exhaustion requirement requires “proper exhaustion” of administrative remedies. 12 Woodford, 548 U.S. at 93. This means “[p]risoners must now exhaust all ‘available’ remedies,” id. 13 at 85, in “compliance with an agency’s deadlines and other critical procedural rules.” Id. at 90-91. 14 The requirement cannot be satisfied “by filing an untimely or otherwise procedurally defective 15 administrative grievance or appeal.” Id. Further, the remedies “available” need not meet federal 16 standards, nor need they be “plain, speedy and effective.” Porter v. Nussle, 534 U.S. 516, 524 17 (2002); Booth, 532 U.S. at 739-40 & n. 5. 18 It is the prison’s requirements, and not the PLRA, that define the boundaries of proper 19 exhaustion. Jones v. Bock, 549 U.S. 199, 218 (2007). The California Department of Corrections 20 and Rehabilitation (“CDCR”) provides its inmates and parolees the right to appeal administratively 21 “any departmental decision, action, condition, or policy which they can demonstrate as having an 22 adverse effect upon their welfare.” Cal.Code Regs. Tit. 15, § 3084.1(a). The CDCR also provides 23 its inmates the right to file administrative appeals alleging misconduct by correctional officers. See 24 id. § 3084.1(e). In order to exhaust all available administrative remedies within this system, a 25 prisoner must submit his complaint as a 602 inmate appeal and proceed through several levels of 26 appeal: (1) informal level grievance filed directly with any correctional staff member; (2) first 27 formal level appeal filed with one of the institution’s appeal coordinators; (3) second formal level 28 appeal filed with the institution head or designee; and (4) third formal level appeal filed with the -7- 09cv1067 1 CDCR director or designee. Id. § 3084.5; Brodheim v. Cry, 584 F.3d 1262, 1264-65 (9th Cir.2009); 2 Barry v. Ratelle, 985 F.Supp. 1235, 1237 (S.D.Cal.1997). This satisfies the administrative remedies 3 exhaustion requirement under Section 1997e(a). Barry, 985 F.Supp. at 1237-38. 4 ii) 5 Analysis In support of their contentions, Defendants submit the declaration of D. Foston, an employee 6 of the CDCR who serves as the Chief of Inmate Appeals Branch. The Inmate Appeals Branch 7 receives all inmate appeals submitted to the Third or highest level for non-medical appeals. Foston 8 Decl’n ¶ 2. A search of the Inmate Appeals Branch’s computer records was conducted for all 9 appeals filed by Plaintiff, and a computer print-out of the results was generated. Foston Decl’n ¶¶ 6- 10 9. The computer print-out lists the appeals to the Director’s level of review filed by Plaintiff and 11 “accepted for review” from January 1993 to September 15, 2010 (the date the computer print-out 12 was generated) or “screened-out” at the Director’s level of review from August 2000 to September 13 15, 2010. Id., Ex. A. 14 Defendants assert that the Inmate Appeals Branch has no record of Plaintiff having pursued 15 any appeals relating to his August 11, 2007 and September 16, 2007 retaliation claims to the 16 Director’s level of review. Foston Decl’n ¶¶ 11-12; Ex. A. According to the declaration of D. 17 Foston, since his arrival at Calipatria on December 19, 2003, Plaintiff has submitted 22 accepted 18 inmate appeals for review at the Director’s level of review and 9 rejected inmate appeals, and none 19 of those appeals involved the August 11, 2007 or September 16, 2007 retaliation claims. The 20 exhibits attached in support of the Foston declaration further demonstrate that none of the accepted 21 or rejected inmate appeals involved these two instances of alleged retaliation. See Foston Decl’n, 22 Exs. A and B. Defendants have provided a copy of each Director’s Level Appeal Decision regarding 23 the other instances of retaliation at issue in this case. See id., Ex. B. Thus, the record appears to 24 reflect that Plaintiff was aware of the administrative grievance procedure and knowledgeable 25 regarding its use. 26 /// 27 /// 28 /// -8- 09cv1067 1 Plaintiff received notice that Defendants seek dismissal in part because he failed to exhaust 2 administrative remedies.4 See November 8, 2010 Order, Doc. No. 54. The Court advised Plaintiff 3 of his opportunity to include in his opposition to Defendants’ motion whatever arguments and 4 documentary evidence he may have to show that he did, in fact, exhaust all administrative remedies 5 that were available to him prior to filing suit. See Wyatt, 315 F.3d at 1119-21. However, as noted 6 above, Plaintiff does not address his retaliation claims in his opposition due to his mistaken belief 7 that the Court previously dismissed these claims. As a likely result, Plaintiff also does not address 8 his failure to exhaust his administrative remedies regarding the two instances of retaliation at issue, 9 nor does he attach any documentary evidence of exhaustion. 10 The Court finds that while Plaintiff certainly has not conceded non-exhaustion as to his 11 August 11, 2007 and September 16, 2007 retaliation claims, the record conclusively demonstrates 12 that these claims are in fact unexhausted. Accordingly, the Court grants Defendants’ motion to 13 dismiss these claims without prejudice. Because the August 11, 2007 claim is the only cause of 14 action Plaintiff brings against Defendant Maciel, the Court dismisses Defendant Maciel from this 15 action. 16 b) 17 18 Failure to State a Claim I) Relevant Law In the prison context, allegations of retaliation against a prisoner’s First Amendment rights to 19 speech or to petition the government may support a Section 1983 claim. Rizzo v. Dawson, 778 F.2d 20 527, 532 (9th Cir. 1985); see also Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995); 21 Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989). “[A] viable claim of First Amendment 22 retaliation entails five basic elements: (1) an assertion that a state actor took some adverse action 23 against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) 24 4 25 26 27 28 As the Court noted in its November 8, 2010 order, “[i]n deciding a motion to dismiss for a failure to exhaust nonjudicial remedies, the court may look beyond the pleadings and decide disputed issues of fact.” Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003) (citing Ritza v. Int’l Longshoremen’s & Warehousemen’s Union, 837 F.2d 365, 369 (9th Cir. 1988) (per curiam)). If the court looks beyond the pleadings when deciding a motion to dismiss for failure to exhaust, “a procedure closely analogous to summary judgment,” the Court “must assure that [the plaintiff] has fair notice of his opportunity to develop a record.” Id. at 1120 n.14; see also Marella v. Terhune, 568 F.3d 1024, 1028 (9th Cir. 2009) (remanding case to district court where court failed to “effectively give [plaintiff] fair notice that he should have submitted evidence regarding exhaustion of administrative remedies”). -9- 09cv1067 1 chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably 2 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). 3 Adverse action is action that “would chill a person of ordinary firmness” from engaging in 4 that activity. Pinard v. Clatskanie School District, 467 F.3d 755, 770 (9th Cir.2006). Both litigation 5 in court and filing inmate grievances are protected activities and it is impermissible for prison 6 officials to retaliate against inmates for engaging in these activities. A prisoner may satisfy the 7 fourth element by alleging harm, rather than chill. Pratt v. Rowland, 65 F.3d 802, 807 (9th 8 Cir.1995); Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir.1989). Furthermore, as to the 9 second element, “timing can properly be considered as circumstantial evidence of retaliatory intent.” 10 Pratt at 808. Here, Plaintiff alleges generally that Defendants’ retaliatory actions began 11 immediately after the thirteen prison employees named in the 2007 action were served with the 12 operative complaint. 13 14 ii) Analysis Each of Plaintiff’s exhausted retaliation claims is discussed individually below. However, 15 the Court notes that Plaintiff alleges the fourth element of his retaliation claims generally, as it 16 relates to the claims taken as a whole. In his TAC, Plaintiff states that Defendants “tried to prevent 17 plaintiff from pursuing his complaint, which the retaliation did have somewhat of an effect on 18 plaintiff adequately presenting all of his claims.” See TAC, p. 5. Plaintiff goes on to allege that 19 when the Court ordered him to amend his complaint in the 2007 action, he had already experienced 20 retaliation and so “when the court ask him to identified [sic] person’s, plaintiff would not identified 21 [sic] all of these peoples in fear of suffering further retaliation.” Id. The Court finds that these 22 allegations, when taken together with Plaintiff’s specific allegations of harm resulting from each 23 instance of retaliation, satisfy the fourth element as delineated in the Rhodes case. 24 a) July 16, 2007 Retaliation Claim 25 Plaintiff alleges that Defendants Arias, Madden, and Davis (1) wrote him up for a serious 26 rules violation when he covered his cell light with a shirt; (2) because (3) other prison officials at 27 Calipatria had been served with the complaint in the 2007 action several days prior; (4) Plaintiff 28 suffered the loss of prison privileges as well as physical and mental harm, in addition to his - 10 - 09cv1067 1 allegations regarding chill, supra; (5) for no legitimate penological purpose, since the violation of 2 misuse of state property ordinarily requires the property to be valued at greater than $50, and the 3 shirt could not have been valued at more than $10. See TAC, p. 6-7. These allegations are sufficient 4 to state a retaliation claim against Defendants Arias, Madden, and Davis. 5 b) July 18 and 25, 2007 Retaliation Claim 6 Plaintiff alleges that Defendant Vargas (1) withheld Plaintiff’s mailing envelopes; (2) 7 because (3) Defendant Vargas had been served with Plaintiff’s 2007 complaint on July 14, 2007; (4) 8 such that Plaintiff was unable to communicate with anyone due to the prison lock down, in addition 9 to his allegations regarding chill, supra; (5) and “none of the retaliatory acts advance any legitimate 10 penological goal.” See TAC, p. 6. These allegations are sufficient to state a retaliation claim against 11 Defendant Vargas. 12 c) 13 July 20, 2007 Retaliation Claim Plaintiff alleges that Defendants Arias, Madden, and Davis retaliated against him when (1) 14 he received a serious rules violation for disrespecting Defendant Arias by calling him a curse word; 15 (2) because (3) Plaintiff had brought a civil complaint against 13 prison employees; (4) Plaintiff 16 suffered physical and mental harm, as well as loss of prison privileges, in addition to his allegations 17 regarding chill, supra; (5) for no legitimate penological purpose, since a serious rules violation 18 report is not warranted for the minor infraction of calling a correctional officer a bad name in the 19 absence of any potential danger. See TAC, p. 9. These allegations are sufficient to state a retaliation 20 claim against Defendants Arias, Madden, and Davis. 21 d) 22 August 12, 2007 Retaliation Claim Plaintiff alleges that Defendants Hopper, Haley, and Trujillo (1) kept him confined to his cell 23 and did not allow him to have recreational time in the yard; (2) because (3) of the civil lawsuit, 24 which named Haley and Trujillo in particular as defendants; (4) Plaintiff suffered physical and 25 mental harm requiring medication and medical attention, in addition to the allegations of chill, 26 supra; (5) for no legitimate penological purpose. See TAC, p. 6, 11. These allegations are sufficient 27 to state a retaliation claim against Defendants Hopper, Haley, and Trujillo. 28 /// - 11 - 09cv1067 1 e) September 18, 2007 Retaliation Claim 2 Plaintiff alleges that Defendant Madden (1) changed his privilege status to “C status” due to 3 two serious rules violations; (2) because (3) of the 2007 civil action Plaintiff had filed; (4) Plaintiff 4 suffered a variety of harms, related to his prison privileges, as well as to his mental and physical 5 health, in addition to his allegations of chill, supra; (5) for no legitimate penological purpose since 6 the rules violations were not actually serious, and instead were fabricated and overstated. See TAC, 7 p. 14-15. These allegations are sufficient to state a retaliation claim against Defendant Madden. 8 5. Eighth Amendment Claim 9 Plaintiff alleges that Defendant Small, Warden at Calipatria, violated his Eighth Amendment 10 right to be free from cruel and unusual punishment by enforcing prison regulations that result in 11 constant illumination in his cell. Defendants move to dismiss this claim, arguing that courts have 12 addressed the exact conditions of confinement described by Plaintiff and found no constitutional 13 violation as a result of those conditions. 14 15 a) Relevant Law The Eighth Amendment prohibits cruel and unusual punishment, and applies to the states 16 through the Due Process Clause of the Fourteenth Amendment. U.S. Const. amend. VIII; Robinson 17 v. California, 370 U.S. 660, 666 (1962). Thus, “when the State takes a person into its custody and 18 holds him there against his will, the Constitution imposes upon it a corresponding duty to assume 19 some responsibility for his safety and general well being.” DeShaney v. Winnebago County Dep’t of 20 Soc. Servs., 489 U.S. 189, 199-200 (1989). 21 In order to state a plausible Eighth Amendment claim, a plaintiff must allege facts sufficient 22 to demonstrate both objective and subjective components. First, the deprivation must be objectively 23 serious such that the prison official’s act or omission resulted “in the denial of ‘the minimal civilized 24 measure of life’s necessities.’” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Rhodes v. 25 Chapman, 452 U.S. 337, 347 (1981)). Second, a prison official must have a “sufficiently culpable 26 state of mind.” Id. Under this latter component, the official will not be held liable for inhumane 27 conditions “unless the official knows of and disregards an excessive risk to inmate health or safety; 28 the official must both be aware of facts from which the inference could be drawn that a substantial - 12 - 09cv1067 1 2 3 risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. b) Analysis Defendants argue that Plaintiff fails to allege an objectively serious condition of 4 confinement. The Supreme Court has held that “extreme deprivations are required to make out a 5 conditions of confinement claim.” Hudson v. McMillian, 503 U.S. 1, 9 (1992). As the Second 6 Circuit has explained, “[b]ecause society does not expect or intend prison conditions to be 7 comfortable, only extreme deprivations are sufficient . . .” Blyden v. Mancusi, 186 F.3d 252, 263 8 (2d Cir.1999); see also Harper v. Showers, 174 F.3d 716, 719 (5th Cir.1999) (“The Constitution 9 does not mandate comfortable prisons . . . but neither does it permit inhumane ones.”). 10 Here, the condition of confinement being challenged is described by Plaintiff as “a big cell 11 light, right above plaintiff bunk in his face, that never cut-off [sic].” See TAC, p.16. Constant 12 illumination of a prison cell, standing alone, has been upheld as constitutional under certain 13 circumstances. See, e.g., Warren v. Kolender, 2009 WL 196114, at * 15 (S.D.Cal., Jan.22, 2009); 14 Pozo v. Hompe, 2003 WL 23185882, at *10 (W.D.Wis. Apr.8, 2003). However, 24-hour lighting of 15 prison cells with excessively bright bulbs has been held to violate the Eighth Amendment. See 16 Keenan v. Hall, 83 F.3d 1083, 1090-91 (9th Cir.1996). 17 Courts have held that the inquiry with respect to whether constant security lighting in prison 18 cells violates the Eighth Amendment is necessarily fact-specific, see, e.g., Shepherd v. Ault, 982 19 F.Supp. 643, 645 (N.D.Iowa 1997), and often depends upon the brightness of the light at issue. 20 Intensities in a range that courts have generally found permissible under the Constitution vary. See 21 Vasquez v. Frank, 290 F. App’x 927, 929 (7th Cir. Aug.15, 2008) (24-hour lighting involving a 22 single, 9-watt fluorescent bulb does not objectively constitute an “extreme deprivation.”); McBride 23 v. Frank, 2009 WL 2591618, at *5 (E.D.Wis. Aug.21, 2009) (constant illumination from a 9-watt 24 fluorescent bulb does not objectively deny “the minimal civilized measure of life’s necessities.”); 25 Wills v. Terhune, 404 F.Supp.2d 1226, 1230-31 (E.D.Cal.2005) (holding that 24-hour illumination 26 by 13-watt bulb was not objectively unconstitutional); Pawelski v. Cooke, 1991 WL 403181, at *4 27 (W.D.Wis. July 18, 1991) (“Having a single 40 watt light bulb on 24 hours a day for security 28 purposes amounts to no more than an inconvenience to the segregation inmates.”), aff’d, 972 F.2d - 13 - 09cv1067 1 352 (7th Cir.1992) (table opinion); compare Keenan, 83 F.3d at 1090-91 (lighting from “large 2 fluorescent lights” was unconstitutional where plaintiff alleged that he “had no way of telling night 3 or day”); Shepherd, 982 F.Supp. at 646-50 (summary judgment denied where inmates claimed harm 4 from 60-watt bulbs). 5 Based on the fact intensive nature of the inquiry that must result from a cell illumination 6 claim, Plaintiff fails to allege sufficient facts to state a plausible claim. Plaintiff does not include 7 any allegations in his TAC as to the type of lighting in his cell or its brightness, without which he 8 cannot demonstrate the existence of an objectively serious deprivation. Accordingly, the Court 9 dismisses this claim. However, the Court finds that Plaintiff sufficiently pleads the subjective 10 component of an Eighth Amendment claim against Defendant Small. Thus, dismissal is without 11 prejudice and with leave to amend because Plaintiff may possibly be able to allege additional facts 12 sufficient to state the objective component of his claim. 13 6. Eleventh Amendment Immunity 14 The Eleventh Amendment prohibits damages actions against state officials acting in their 15 official capacities. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 n. 10 (1989). It does 16 not, however, “bar actions against state officers in their official capacities if the plaintiffs seek only a 17 declaratory judgment or injunctive relief.” Chaloux v. Killeen, 886 F.2d 247, 252 (9th Cir.1989) 18 (internal quotations omitted). Nor does it bar damages actions against state officials in their 19 personal capacities. See Hafer v. Melo, 502 U.S. 21, 31 (1991). The Eleventh Amendment prohibits 20 only damages actions against the “official’s office”– actions that are in reality suits against the state 21 itself – rather than against its individuals. See id. at 26; Will, 491 U.S. at 71; Stivers v. Pierce, 71 22 F.3d 732, 749 (9th Cir.1995). 23 Here, Plaintiff sues Defendants in their individual and official capacities. See TAC, p. 2-4. 24 He asks for injunctive relief and for $150,000 in damages. Id., p. 18. Because of the bar on 25 damages actions against individuals acting in their official capacities, the Court grants Defendants’ 26 motion in part and dismisses Plaintiff’s claim for money damages against Defendants in their official 27 capacities. 28 /// - 14 - 09cv1067 1 7. Injunctive Relief 2 In his prayer for relief, Plaintiff requests an injunction preventing Defendants “from further 3 retaliation, request transfer to another prison close to his family, to assure there will be no further 4 retaliation.” See TAC, p. 18. Defendants ask the Court to deny Plaintiff’s request for injunctive 5 relief, arguing that he has not demonstrated his entitlement to such relief. However, Defendants 6 provide no authority that would authorize the Court to dismiss Plaintiff’s claims for injunctive relief 7 at this time. Though it may be appropriate at a later stage in the litigation to deny Plaintiff’s request 8 for injunctive relief, it is not clear that the Court can reach this decision on a motion to dismiss. See 9 Friends of Frederick Seig Grove # 94 v. Sonoma Cnty. Water Agency, 124 F.Supp.2d 1161, 1172 10 (N.D.Cal.2000) (“While the Court may ultimately agree with the defendants that injunctive relief is 11 inappropriate, it is by no means evident that the Court can reach such a determination on a motion to 12 dismiss. Accordingly, the defendants’ motion to dismiss the plaintiff’s request for injunctive relief 13 is denied as premature.”). 14 By requesting injunctive relief in his TAC, Plaintiff is not seeking injunctive relief through 15 either a motion for preliminary injunction or a temporary restraining order. Furthermore, in light of 16 the Court’s above determination that Plaintiff has pled an ongoing constitutional violation, the Court 17 denies Defendants’ motion to dismiss Plaintiff’s claim for injunctive relief. 18 19 20 21 CONCLUSION Based on the foregoing, the Court GRANTS IN PART and DENIES IN PART Defendants’ motion to dismiss as follows: (1) The Court GRANTS Defendants’ motion and DISMISSES Plaintiff’s August 11, 2007 and September 16, 2007 First Amendment retaliation claims without prejudice; 22 23 (2) The Court DISMISSES Defendant Maciel from this action; 24 (3) The Court DENIES Defendants’ motion to dismiss Plaintiff’s July 16, 2007, July 18 25 - 25, 2007, July 20, 2007, August 12, 2007, and September 18, 2007 First 26 Amendment retaliation claims; 27 28 (4) The Court GRANTS Defendants’ motion and DISMISSES Plaintiff’s Eighth Amendment claim without prejudice and with leave to amend; - 15 - 09cv1067 1 (5) 2 3 monetary damages against Defendants in their official capacities; (6) 4 5 The Court GRANTS Defendants’ motion and DISMISSES Plaintiff’s claim for The Court DENIES Defendants’ motion to dismiss Plaintiff’s request for injunctive relief; and, (7) The Court GRANTS Plaintiff thirty (30) days from the filing date of this order to file 6 a Fourth Amended Complaint. The Court grants leave to amend only as to Plaintiff’s 7 Eighth Amendment claim as alleged against Defendant Small. Plaintiff may not 8 allege any new claims against any additional defendants. The Fourth Amended 9 Complaint must be complete in itself without reference to any prior pleadings. See 10 Local Rule 15.1. All claims not re-alleged in the Fourth Amended Complaint will be 11 deemed to have been waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.1987). 12 The Fourth Amended Complaint shall be Plaintiff’s final pleading. 13 14 IT IS SO ORDERED. DATED: April 4, 2011 15 16 Hon. Michael M. Anello United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 - 16 - 09cv1067

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.