Roettgen v. Paramo et al, No. 3:2021cv01285 - Document 32 (S.D. Cal. 2022)
Court Description: ORDER Granting Motion to Dismiss re 16 . Signed by Judge Jinsook Ohta on 8/4/2022. (All non-registered users served via U.S. Mail Service)(axc)
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Roettgen v. Paramo et al Doc. 32 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 15 16 ORDER GRANTING MOTION TO DISMISS Plaintiff, 13 14 Case No.: 21cv1285-JO (BLM) JOHN ROETTGEN, CDCR # V-05142, v. D. PARAMO, et al., Defendants. 17 18 I. BACKGROUND 19 Plaintiff John Roettgen, a state prisoner proceeding pro se and in forma pauperis, 20 filed a civil rights complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff alleges 21 that while housed at the Richard J. Donovan Correctional Facility (“RJD”), in San Diego, 22 California, Defendants planted a weapon in his cell in retaliation for complaining of inmate 23 abuse by guards, denied him due process in the ensuing disciplinary proceedings, and 24 conspired to violate his due process rights. (Id. at 11-24, 28-29.) 25 Defendants Daniel Paramo, E. Garcia, T. McWay, C. Covel, and V. Cortes, five of 26 the nine Defendants named in the complaint, filed a motion to dismiss the due process and 27 conspiracy claims pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 16.) 28 Plaintiff filed an opposition to this motion and a request for judicial notice. (ECF No. 22.) 1 21cv1285-JO (BLM) Dockets.Justia.com 1 In this opposition, Plaintiff also included a request to dismiss Defendants Covel and Cortes 2 from this action “as Plaintiff will no longer be pursuing these Defendants” (id. at 57-58), 3 which the Court GRANTS. For the reasons set forth below, the Court also GRANTS the 4 motion to dismiss Defendants Paramo, Garcia and McWay from this case. 5 II. STANDARD OF REVIEW 6 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal 7 sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “To survive 8 a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 9 ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 10 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially 11 plausible “when the plaintiff pleads factual content that allows the court to draw the 12 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 13 U.S. at 678. Plausibility requires pleading facts, as opposed to conclusory allegations or 14 the “formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. 15 “In civil rights cases where the plaintiff appears pro se, the court must construe the 16 pleadings liberally and must afford plaintiff the benefit of any doubt.” Karim-Panahi v. 17 L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). The rule of liberal construction is 18 “particularly important in civil rights cases.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th 19 Cir. 1992). The court must accept as true all allegations of material facts alleged in the 20 complaint and construe all inferences in the light most favorable to the non-moving party. 21 Moyo v. Gomez, 32 F.3d 1382, 1384 (9th Cir. 1994). However, a pro se litigant’s pleading 22 still must meet a minimum threshold in providing the defendants with notice of what it is 23 they did wrong. See Brazil v. U.S. Dep’t of Navy, 66 F.3d 193, 199 (9th Cir. 1995). 24 III. PROCEDURAL HISTORY 25 In his complaint, Plaintiff alleges that various RJD Correctional Officers abused him 26 while he was incarcerated at RJD from 2009 through 2017. Because Plaintiff filed and 27 settled three civil rights lawsuits against these officers in 2016 for almost nine thousand 28 dollars, he became a target for further abuse and retaliation. (ECF No. 1 at 11-13.) 2 21cv1285-JO (BLM) 1 Specifically, Plaintiff alleges that an RJD Officer planted a weapon in his cell in retaliation 2 for his previous complaints. (Id. at 16.) As a result, in July 2017, prison officials found an 3 eight-inch piece of metal sitting in plain sight in a glasses case in his cell and he was 4 charged with a Rules Violation Report (“RVR”) for possession of a deadly weapon. (Id. 5 at 13-17.) 6 Plaintiff alleges he was denied Fourteenth Amendment due process rights at the 7 ensuing disciplinary hearing on this RVR.1 Specifically, he alleges that Officer McWay 8 refused to collect evidence and witness testimony as requested by Plaintiff in preparation 9 for this hearing. (Id. at 21.) Plaintiff alleges Officer Garcia, the hearing officer, took part 10 in the conspiracy to deny Plaintiff his due process rights and was, therefore, not an impartial 11 hearing officer. (Id. at 21-22.) Officer Garcia also allegedly tampered with the hearing by 12 instructing McWay not to ask certain questions of Plaintiff’s requested witnesses and 13 refused to postpone the hearing to gather additional evidence. (Id.) As a result of these 14 procedural violations which denied him due process, Plaintiff was found in violation of the 15 RVR. Plaintiff alleges that Warden Paramo knew that these procedural violations were 16 taking place but “rubber stamp[ed]” this adverse result anyway. (Id. at 22). As a result, 17 Plaintiff alleges that he 1) suffered a loss of good time credits; 2) was housed at the highest 18 security level in the California Department of Corrections and Rehabilitation (“CDCR”) 19 for over four years; 3) “gain[ed] over twenty-four points”; 4) was in “Closed Custody” for 20 over a year; 5) spent seven months in segregated housing at “one of the most dangerous 21 institution[s] in the state, Kern Valley State Prison,” and 6) will have the RVR results 22 referenced in future job applications and parole consideration. (Id. at 19.) 23 Defendants Paramo, McWay, Covel, Cortes, and Garcia sought dismissal of 24 Plaintiff’s claims alleging denial of his Fourteenth Amendment due process rights. 25 Plaintiff opposed this motion and, in doing so requested that the Court 1) judicially notice 26 27 1 28 Plaintiff’s complaint also alleges First Amendment retaliation and conspiracy to retaliate claims which are not the subject of this motion to dismiss. 3 21cv1285-JO (BLM) 1 what he claims is a “Senior Hearing Officer Handbook”; and 2) dismiss Defendants Covel 2 and Cortes from this case. 3 Defendants Covel and Cortes, the Court will only discuss the allegations concerning the 4 remainder of the Defendants. 5 6 Because the Court grants Plaintiffs’ motion to dismiss IV. A. DISCUSSION Plaintiff Fails to Allege that Defendants Interfered with a Constitutionally 7 Protected Liberty Interest 8 Plaintiff argues that his Fifth and Fourteenth Amendment rights to due process were 9 violated in connection to his disciplinary hearing.2 Because the procedural due process 10 rights Plaintiff claims he was denied only attach when a constitutionally protected liberty 11 interest is at stake in the proceeding, the Court first examines whether Plaintiff has alleged 12 that this RVR hearing implicated protected liberty interests. In his opposition, Plaintiff 13 argues the negative outcome of his RVR impacted the following protected liberty interests: 14 1) he lost good-time custody credits; 2) he faces a lower chance of being released under 15 Elderly Parole Consideration; 3) he was placed in disciplinary segregation for seven 16 months; and 4) he was housed in a higher security facility (Level III instead of Level II). 17 He also appears to argue that the CDCR Senior Hearing Officer Handbook that he attached 18 to his opposition gave rise to an expectation of fairness in prison disciplinary hearings. 19 (ECF No. 22 at 14-15.) The Court will examine each of these arguments in turn as well as 20 allegations in his complaint that: 1) he was placed in “Closed Custody for over a year;” 21 and 2) “gain[ed] over twenty-four points.” (ECF No. 1 at 19.) 22 The Fourteenth Amendment provides that “[n]o state shall . . . deprive any person of 23 life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. “The 24 25 2 26 27 28 The complaint fails to state a Fifth Amendment claim because Plaintiff is not challenging actions of the federal government. See Lee v. City of Los Angeles, 250 F.3d at 687, 688 (9th Cir. 2001) (“The Due Process Clause of the Fifth Amendment and the equal protection component thereof apply only to actions of the federal government - not to those of state or local governments.”), citing Schweiker v. Wilson, 450 U.S. 221, 227 (1981). 4 21cv1285-JO (BLM) 1 requirements of procedural due process apply only to the deprivation of interests 2 encompassed by the Fourteenth Amendment’s protection of liberty and property.” Bd. of 3 Regents v. Roth, 408 U.S. 564, 569 (1972). “To state a procedural due process claim, [a 4 plaintiff] must allege ‘(1) a liberty or property interest protected by the Constitution; (2) a 5 deprivation of the interest by the government; (and) (3) lack of process.’” Wright v. 6 Riveland, 219 F.3d 905, 913 (9th Cir. 2000), quoting Portman v. Cnty. of Santa Clara, 995 7 F.2d 898, 904 (9th Cir. 1993). 8 A prisoner is entitled to certain enumerated due process protections when charged 9 with a disciplinary violation. Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003) 10 citing Wolff v. McDonnell, 418 U.S. 539, 564-571 (1974). “Such protections include the 11 rights to call witnesses, to present documentary evidence and to have a written statement 12 by the factfinder as to the evidence relied upon and the reasons for the disciplinary action 13 taken.” Id. at 1077-78. However, those protections adhere only when the disciplinary 14 action implicates a protected liberty interest either by exceeding the sentence in “an 15 unexpected manner” or where an inmate is subject to restrictions which impose “atypical 16 and significant hardship on the inmate in relation to the ordinary incidents of prison life.” 17 Sandin v. Conner, 515 U.S. 472, 484 (1995). Where no such protected liberty interest is at 18 stake, the minimum requirements of due process apply, which require only that “the 19 findings of the prison disciplinary board (be) supported by some evidence in the record.” 20 Superintendent v. Hill, 472 U.S. 445, 454-55 (1985). 21 1. No Protected Liberty Interest Arose from Loss of Custody Credits 22 Plaintiff argues that his loss of good-time custody credits constitutes a protected 23 liberty interest, such that he should have been afforded full procedural protections outlined 24 in Wolff during his RVR hearing. Because earned good-time custody credits can result in 25 a shortened sentence, prisoners generally have a liberty interest in these credits. In re 26 Rothwell, 164 Cal.App.4th 160, 165 (2008). In instances where the loss of custody credits 27 does not affect the duration of a sentence, however, there is no protected liberty interest 28 sufficient to invoke the procedural protections of Wolff. Sandin, 515 U.S. at 484; Sims v. 5 21cv1285-JO (BLM) 1 Maddock, 2 Fed. Appx. 767, 768 (9th Cir. 2001) (“Here, there was a minor loss of good 2 time credits which is unlikely to alter the balance of his ‘life plus three-year’ sentence. 3 Thus, there is no cognizable liberty interest at stake here.”) (internal citation omitted). 4 Here, Plaintiff concedes that the loss of his custody credits will not affect the duration of 5 his sentence. In his complaint, he states that “he is serving an indeterminate life term and 6 the credits do not significantly affect Plaintiff where Plaintiff will never be able to serve 7 the whole 69 year term.” (ECF No. 1 at 19 n.6.)3 Because these credits cannot affect the 8 actual duration of his sentence one way or another, Plaintiff cannot allege that their loss 9 implicated a protected liberty interest such that due process rights should have been 10 afforded him at the RVR hearing. Sandin, 515 U.S. at 484; Sims, 2 Fed. Appx. at 768. 11 2. No Protected Liberty Interest Arose from Effect on Parole Consideration 12 Plaintiff further argues that his adverse finding on the RVR reduced his chances of 13 being released on parole, thereby implicating a protected liberty interest. Noting that “the 14 decision to release a prisoner [on parole] rests on a myriad of considerations,” the Supreme 15 Court has found that disciplinary actions do not give rise to a protected liberty interest just 16 because of the impact it may have on a parole decision. Sandin, 515 U.S. at 487. Because 17 an inmate is “afforded procedural protection at his parole hearing in order to explain the 18 circumstances behind his misconduct . . . , [t]he chance that a finding of misconduct will 19 alter the balance is simply too attenuated to invoke the procedural guarantees of the Due 20 Process Clause.” Id. Here, Plaintiff alleges the finding of guilt on the RVR has affected 21 his eligibility for Elderly Parole Consideration under California Penal Code § 3055. He 22 argues that he would now have eight discipline-free years but for the RVR finding and, 23 24 25 26 27 28 33 If the loss of credits gives rise to a protected liberty interest the claim would be barred. See Heck v. Humphrey, 512 U.S. 477, 480-82 (1994) (holding that where success on a § 1983 action would necessarily impact the validity or duration of a sentence a prisoner must first invalidate the underlying conviction or sentence); Edwards v. Balisok, 520 U.S. 641, 643-47 (1997) (holding that the Heck favorable termination requirement applies to prisoner § 1983 actions alleging a deprivation of good time custody credits). 6 21cv1285-JO (BLM) 1 consequently, stand a better chance of release on parole at a future parole hearing. (ECF 2 No. 22 at 14.) Under Sandin, however, the possible impact on parole alleged by Plaintiff 3 is too speculative to rise to the level of a protected liberty interest. 515 U.S. at 487. 4 3. No Protected Liberty Interest Arose from Change in Custody Level 5 Plaintiff further alleges that, as a result of his RVR finding, he has been confined 6 under higher security conditions. Specifically, he contends he has (1) been housed at the 7 highest security level facilities in the CDCR for over four years; (2) has “gain[ed] over 8 twenty-four custody points”4; (3) was in “Closed Custody5 for over a year”; and (4) “would 9 have at least been in Level III”6 but for the RVR. (ECF No. 1 at 19; ECF No. 22 at 14-15.) 10 Absent a showing of significantly different conditions of confinement, the placement of a 11 prisoner “at a ‘level IV’ prison rather than a ‘level III’ prison does not . . . present an 12 ‘atypical and significant hardship.’” Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007), 13 quoting Sandin, 515 U.S. at 486; see also Meachum v. Fano, 427 U.S. 215, 225 (1976) 14 (“[T]he Due Process Clause [does not] in and of itself protect a duly convicted prisoner 15 against transfer from one institution to another within the state prison system.”) 16 Here, Plaintiff does not allege any specific facts about the conditions of confinement 17 in “Closed Custody,” in a Level III or IV prison, or as a result of his gain of “over twenty- 18 19 4 20 21 22 23 24 25 26 27 28 Plaintiff appears to allege that this is an increase in classification points which the CDCR uses to calculate a Reclassification Score Sheet to determine an inmate’s placement. See Cal. Code Regs., tit. 15 § 3375.4. 5 “Close Custody . . . shall be in cells within Level II, III and Level IV facilities in housing units located within an established facility security perimeter,” with “direct and constant” supervision of inmates by staff. Cal. Code Regs., tit. 15 § 3377.1(2)(A)-(D). 6 Within the CDCR system, “Level I facilities and camps consist primarily of open dormitories with a low security perimeter. Level II facilities consist primarily of open dormitories with a secure perimeter, which may include armed coverage. Level III facilities primarily have a secure perimeter with armed coverage and housing units with cells adjacent to exterior walls. Level IV facilities have a secure perimeter with internal and external armed coverage and housing units . . . or cell block housing with cells nonadjacent to exterior walls.” Cal. Code Regs., tit. 15 § 3377(a)-(d). 7 21cv1285-JO (BLM) 1 four points,” sufficient to support a finding that they represented a significant and atypical 2 change in his conditions of confinement. Absent such allegations, the complaint fails to 3 plausibly allege a protected liberty interest arising from his change in housing. See 4 Meachum, 427 U.S. at 224 (“[W]e cannot agree that any change in the conditions of 5 confinement having a substantial adverse impact on the prisoner involved is sufficient to 6 invoke the protections of the Due Process Clause.”); Grant v. Cate, No. 14cv00727-EPG 7 (PC), 2016 WL 259135, at *3 (E.D. Cal. Jan. 21, 2016) (mere allegations of placement in 8 close custody “do not indicate that he has been subjected to terms of confinement outside 9 the bounds of those contemplated by a prison sentence, or outside the normal limits or 10 range of custody which the conviction has authorized the State to impose.”) 11 4. No Protected Liberty Interest Arose from Disciplinary Segregation 12 Finally, Plaintiff argues that his RVR hearing resulted in discipline of a seven-month 13 term in disciplinary segregation, a condition of confinement that implicates a 14 constitutionally protected liberty interest. 15 “discipline in segregated confinement [does] not present the type of atypical, significant 16 deprivation in which a State might conceivably create a liberty interest.” Sandin, 515 U.S. 17 at 486. A prisoner cannot therefore rely on disciplinary segregation, in and of itself, but 18 must assert a dramatic departure from the standard conditions of confinement before due 19 process concerns are implicated from a stay in disciplinary segregation. Id. at 485-86. The Supreme Court has held that a prisoner’s 20 Here, Plaintiff alleges he was required to serve his seven-month segregated housing 21 term in “one of the most dangerous institution[s] in the state, Kern Valley State Prison.” 22 (ECF No. 1 at 19.) Aside from the conclusory and general statement of Kern Valley State 23 Prison’s dangerousness, he does not allege any specific facts about his confinement there 24 that might support a finding that the conditions there represented a significant and atypical 25 change in the conditions of confinement from RJD. See Sandin, 515 U.S. at 486 (finding 26 no protected liberty interest where “disciplinary segregation, with insignificant exceptions, 27 mirrored those conditions imposed upon inmates in administrative segregation and 28 protective custody.”); Resnick v. Hayes, 213 F.3d 443, 447-49 (9th Cir. 2000) (prisoner’s 8 21cv1285-JO (BLM) 1 placement and retention in segregated housing did not implicate a protected liberty interest 2 because it was not “materially different from those conditions imposed on inmates in purely 3 discretionary segregation” and did not allege it created “a major disruption” in his 4 environment). Therefore, Plaintiff’s allegation he served a seven-month disciplinary 5 segregation term, without more, is not sufficient to plead that a protected liberty interest 6 was at stake during the RVR hearing. 7 5. No Protected Liberty Interest Arose from the Handbook 8 In his opposition, Plaintiff argues that a protected liberty interest arose from the 9 expectation of fairness created by the CDCR Senior Hearing Officer Handbook. (ECF No. 10 22 at 15.) He attaches a copy of this document to his opposition, which he contends is “a 11 CDCR Authoritative Tome on the subject of processing Inmate Disciplinary, 12 Investigations and Hearings,” and requests the Court take judicial notice of it in considering 13 the motion to dismiss. (Id. at 59-136.) The Court will first consider the threshold question 14 of whether it should take judicial notice of this document before considering its contents. 15 The Court generally may not consider materials beyond the four corners of the 16 complaint on a Rule 12(b)(6) motion to dismiss. Lee, 250 F.3d at 688. Materials allowed 17 to be considered include documents attached to or incorporated by reference in a complaint 18 and materials that can be judicially noticed. Schneider v. California Dept. of Corrections, 19 151 F.3d 1194, 1197 (9th Cir. 1998). Types of materials which are suitable for judicial 20 notice include facts that are readily capable of accurate determination by sources whose 21 accuracy cannot reasonably be questioned. See Fed. R. Evid. 201(b)(1). Judicially 22 noticeable materials include court records, United States v. Wilson, 631 F2d 118, 119 (9th 23 Cir. 1980), matters of public record, Lee, 250 F.3d at 689, and state agency records. City 24 of Sausalito v. O’Neill, 386 F.3d 1186, 1224 n.2 (9th Cir. 2004) (“We may take judicial 25 notice of a record of a state agency not subject to reasonable dispute.”) 26 The proffered Handbook is not attached to the complaint or incorporated therein: 27 therefore, this document can only be considered if it is judicially noticeable. Plaintiff has 28 not established that it is a public record or official government agency document. 9 21cv1285-JO (BLM) 1 Defendants vigorously object to its authenticity and argue that no such official handbook 2 exists. (ECF No. 25 at 4-5.) As this document’s accuracy and authenticity are disputed, 3 the Court declines to take judicial notice of it or accept Plaintiff’s argument that it is the 4 source of a protected liberty interest. 5 B. Plaintiff has not Alleged that Defendants Violated Minimum Due Process 6 Requirements 7 As set forth above, Plaintiff has failed to plausibly allege that his RVR hearing 8 implicated protected liberty interests. Therefore, the Fourteenth Amendment only entitled 9 him to minimum due process protections for his RVR hearing, rather than the more 10 extensive procedural protections outlined in Wolff. In order to determine whether Plaintiff 11 has adequately pled a violation of Fourteenth Amendment due process, the Court next 12 considers whether Plaintiff has alleged that he was denied the minimum due process 13 protection available to prisoners for his RVR hearing. 14 Even in situations where no protected liberty interest arises, prisoners still have 15 minimum due process rights of “avoiding punishments arbitrarily imposed.” Burnsworth 16 v. Gunderson, 179 F.3d 771, 775 (9th Cir. 1999). “Hill, like Wolff, restates the fundamental 17 principle of due process in prison disciplinary hearings - ‘the minimum requirements of 18 due process’ require that ‘the findings of the prison disciplinary board (be) supported by 19 some evidence in the record.’” Id., quoting Hill, 472 U.S. at 454-55. 20 Here, while Plaintiff alleges a litany of procedural wrongs against Defendants 21 McWay, Garcia, and Paramo, he does not allege that his RVR finding was arbitrary or 22 supported by no evidence in the record. To the contrary, Plaintiff acknowledges the 23 disciplinary conviction was supported by the discovery of the weapon in his cell. See Hill, 24 472 U.S. at 455 (“We hold that the requirements of due process are satisfied if some 25 evidence supports the decision by the prison disciplinary board to revoke good time credits. 26 This standard is met if ‘there was some evidence from which the conclusion of the 27 administrative tribunal could be deduced. . . . .’”) “Ascertaining whether this standard is 28 satisfied does not require examination of the entire record, independent assessment of the 10 21cv1285-JO (BLM) 1 credibility of witnesses, or weighing of the evidence.” Id. While Plaintiff contends that 2 this weapon was planted, the fact of its discovery in its cell renders the RVR report 3 supported by some, if meager, evidence and therefore not completely arbitrary. 4 Because Plaintiff has neither pled entitlement to the full procedural protections under 5 Wolff nor a violation of minimum due process protections, his Fourteenth Amendment 6 claims fail. The Court grants Defendants’ motion to dismiss these claims against them. In 7 addition, because the complaint fails to plausibly allege a violation of Plaintiff’s right to 8 due process, it also fails to plausibly allege a conspiracy to violate that right. See 9 Cassettari, 824 F.2d at 739 (noting that the absence of a 42 U.S.C. § 1983 deprivation of 10 rights precludes a conspiracy claim based on the same allegations). Accordingly, the 11 motion to dismiss Plaintiff’s claim for conspiracy to deny due process is granted and that 12 claim is dismissed from the complaint. 13 D. Qualified immunity 14 Defendants argue they are entitled to qualified immunity from damages on the basis 15 that Plaintiff has not stated a Fourteenth Amendment due process claim. (ECF No. 16-1 at 16 18-19.) Because that claim has been dismissed from the complaint for failure to state a 17 claim, the Court declines to address qualified immunity at this time. See Saucier v. Katz, 18 533 U.S. 194, 201 (2001) (“If no constitutional right would have been violated were the 19 allegations established, there is no necessity for further inquiries concerning qualified 20 immunity.”); County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998) (“[T]he better 21 approach to resolving cases in which the defense of qualified immunity is raised is to 22 determine first whether the plaintiff has alleged the deprivation of a constitutional right at 23 all.”) 24 V. LEAVE TO AMEND 25 In his opposition Plaintiff requests leave to amend his complaint should the Court 26 grant Defendants’ motion to dismiss. (ECF No. 22 at 19.) He identifies evidence and 27 questions for witnesses which he contends were excluded from the disciplinary hearing. 28 (Id. at 9-11, 22-25, 32-33, 48-50, 52-53.) 11 21cv1285-JO (BLM) 1 “The court should freely give leave [to amend] when justice so requires.” Fed. R. 2 Civ. P. 15(a)(2). “A district court should not dismiss a pro se complaint without leave to 3 amend unless ‘it is absolutely clear that the deficiencies of the complaint could not be cured 4 by amendment.’” Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015), quoting Akhtar 5 v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). 6 Plaintiff seeks to add allegations that he was denied the ability to call witnesses and 7 submit evidence at the disciplinary hearing. While he does not indicate an intention to 8 include allegations about changes in the conditions of his confinement, the Court will grant 9 leave to amend. It is not absolutely clear Plaintiff cannot amend to include allegations that 10 his placement in Close Custody for over a year and his seven-month stay in disciplinary 11 segregation involved conditions of confinement which were so atypical and significant so 12 as to fall outside the range of confinement normally expected by inmates in relation to the 13 ordinary incidents of prison life. See Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996) 14 (holding that in determining whether a prison hardship is atypical and significant, the court 15 relies on a “condition or combination of conditions or factors [that] requires case by case, 16 fact by fact consideration.”) 17 VI. CONCLUSION AND ORDER 18 Based on the foregoing, the Court grants the motion to dismiss brought by 19 Defendants Paramo, McWay, and Garcia pursuant to Fed. R. Civ. P. 12(b)(6) [ECF No. 20 16] and dismisses the Fourteenth Amendment due process and conspiracy to deny due 21 process claims against them without prejudice. The Court grants Plaintiff’s request to 22 dismiss Defendants Covel and Cortes from this action and dismisses those Defendants 23 without prejudice. 24 The Court grants Plaintiff forty-five (45) days leave from the date of this Order in 25 which to file an amended complaint. Plaintiff’s amended complaint must be complete by 26 itself without reference to his original pleading; Defendants not named and any claim not 27 re-alleged in his amended complaint will be considered waived. See S.D. CAL. CIVLR 28 15.1; Hal Roach Studios, Inc., 896 F.2d at 1546 (“[A]n amended pleading supersedes the 12 21cv1285-JO (BLM) 1 original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims 2 dismissed with leave to amend which are not re-alleged in an amended pleading may be 3 “considered waived if not repled.”) If Plaintiff fails to timely amend or informs the Court 4 of his intention not to amend, this action will proceed with the remaining claims in the 5 original complaint alleging retaliation and conspiracy to retaliate. 6 7 8 9 IT IS SO ORDERED. Dated: August 4, 2022 Hon. Jinsook Ohta United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 21cv1285-JO (BLM)
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