Opinion
2:22-cv-07097-FWS (MAR)
11-22-2022
HAROLD C. LEE, Plaintiff, v. MARANDA, ET AL., Defendant.
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
HONORABLE MARGO A. ROCCONI UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
On November 10, 2022, Harold C. Lee (“Plaintiff”), proceeding pro se, filed the instant Second Amended Complaint (“SAC”). ECF Docket No. (“Dkt.”) 11. For the reasons discussed below, the Court dismisses the SAC with leave to amend.
If Plaintiff desires to pursue this action, he is ORDERED to respond by no later than December 23, 2022, by choosing one of the three (3) options discussed in Part V, below. Further, Plaintiff is admonished that, if he fails to timely respond, the Court will recommend that this action be dismissed without further leave to amend and with prejudice for failure to state a claim and follow the Court's orders.
II. BACKGROUND
A. PROCEDURAL HISTORY
On March 10, 2022, Plaintiff constructively filed a Complaint in the Southern District of California, bringing claims pursuant to 42 U.S.C. § 1983 (“Section 1983”) against Defendants located in both the Central and Southern Districts of California. Dkt. 1 at 3-5; 11. On May 31, 2022, the Southern District dismissed the Complaint with leave to amend. Dkt. 5. On July 8, 2022, Plaintiff filed the First Amended Complaint (“FAC”), which omitted the claims brought against the Defendant located in the Southern District. Dkt. 6. Accordingly, on September 29, 2022, the Southern District ordered that the action be transferred to the Central District. Dkt. 7. The Central District received the case file on October 4, 2022. Dkt. 8.
Under the “mailbox rule,” when a pro se inmate gives prison authorities a pleading to mail to court, the court deems the pleading constructively “filed” on the date it is signed. Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010) (citation omitted); Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009) (stating the “mailbox rule applies to § 1983 suits filed by pro se prisoners”).
On October 18, 2022, the Court dismissed the FAC with leave to amend. Dkt. 10. On November 10, 2022, Plaintiff filed the instant SAC. Dkt. 11.
B. SUMMARY OF THE SAC
Plaintiff brings three (3) claims against a single Defendant, Correctional Officer Maranda, stemming from events at Lancaster State Prison in May 2021. Dkt. 11 at 2- 56. Plaintiff's allegations are similar to those in his FAC, with a few key additions and omissions:
On May 17, 2021, Plaintiff informed Defendant Maranda that he was going to “file an appeal against him for allowing inmates to deliver his Trust Account Statement, and other U.S. mail.” Id. at 3. Maranda became hostile and threatened to have Plaintiff removed from the housing unit for complaining. Id.
On May 26, 2021, Defendant Maranda was assigned to the floor unit, and Correctional Officer Tapia was assigned to the control gun tower. Id. at 3-4 .
Protocol mandated that two officers remain on the floor at all times, or the building could not be released for daily activity. Id. Tapia had left to use the restroom just before the p.m. yard was due to be released. Id. Pursuant to protocol, Maranda should have waited until Tapia returned to his post before releasing the p.m. yard. Id. Instead, Maranda violated protocol by going up to the control gun tower to release the p.m. yard himself, leaving just one officer on the floor. Id.
When the p.m. yard was released, a couple of inmates began fighting 15 feet away from Plaintiff. Id. at 4. Presumably in a failed attempt to quell the fight, Maranda shot Plaintiff in the chest. Id. Plaintiff had nothing to do with the fight the other inmates were having. Id.
Plaintiff appears to allege Maranda:
(1) used excessive force in violation of the Eighth Amendment rights by shooting Plaintiff in the chest;
(2) retaliated against Plaintiff in violation of the First Amendment by threatening to remove him from the housing unit using excessive force against Plaintiff; and
(3) violated Plaintiff's Fourteenth Amendment equal protection and/or due process rights.Id. at 4-6. Plaintiff seeks damages totaling $2,500,000. Id. at 6.
III. STANDARD OF REVIEW
Where a plaintiff is incarcerated, a court must screen the complaint under 28 U.S.C. § 1915A and is required to dismiss the case at any time if it concludes the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915A; see Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998).
A complaint may be dismissed for failure to state a claim “where there is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory.” Zamani v. Carnes, 491 F.3d 990, 996 (9th Cir. 2007). In considering whether a complaint states a claim, a court must accept as true all of the material factual allegations in it. Hamilton v. Brown, 630 F.3d 889, 892-93 (9th Cir. 2011). However, a court need not accept as true “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). Although a complaint need not include detailed factual allegations, it “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) (citation and internal quotations omitted). A claim is facially plausible when it “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The complaint “must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
“A document filed pro se is ‘to be liberally construed,' and a ‘pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'” Woods, 525 F.3d at 889-90. However, liberal construction should only be afforded to “a plaintiff's factual allegations,” Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989), and a court need not accept as true “unreasonable inferences or assume the truth of legal conclusions cast in the form of factual allegations,” Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003).
If a court finds the complaint should be dismissed for failure to state a claim, a court has discretion to dismiss with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000). Leave to amend should be granted if it appears possible the defects in the complaint could be corrected, especially if the plaintiff is pro se. Id. at 1130-31; see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). However, if, after careful consideration, it is clear a complaint cannot be cured by amendment, a court may dismiss without leave to amend. Cato, 70 F.3d at 1107- 11; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009).
IV. DISCUSSION
A. PLAINTIFF STATES AN EXCESSIVE FORCE CLAIM UNDER THE EIGHTH AMENDMENT
1. Applicable law
Eighth Amendment excessive force turns on the question of “whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.” Hudson v. McMillian, 503 U.S. 1, 6 (1992); see also Clement v. Gomez, 298 F.3d 898, 903 (9th Cir. 2002). In other words, Plaintiff must show that “correctional officers: (1) acted for the very purpose of causing harm; (2) used excessive and unnecessary force under all of the circumstances; and (3) caused the plaintiff harm.” Reid v. United States, 825 F. App'x. 442, 445 (9th Cir. 2020). Whether an exercise of force is excessive is determined by five (5) factors: “(1) the extent of injury suffered by an inmate; (2) the need for application of force; (3) the relationship between that need and the amount of force used; (4) the threat reasonably perceived by the responsible officials; and (5) any efforts made to temper the severity of a forceful response.” Bearchild v. Cobban, 947 F.3d 1130, 1141 (9th Cir. 2020).
2. Analysis
As stated in the Court's October 18, 2022 Order, this Court finds that Plaintiff has stated an Eighth Amendment excessive force claim against Maranda:
In Marquez v. Gutierrez, the Ninth Circuit has held that “to shoot a passive, unarmed inmate standing near a fight between other inmates, none of whom was armed, when no inmate was in danger of great bodily harm, would inflict unnecessary and wanton pain.” 322 F.3d 689, 692 (9th Cir. 2003). The Ninth Circuit acknowledged that the plaintiff in Marquez would be able to establish an Eighth Amendment violation if he were to prove these facts. Id. This is essentially the exact situation Plaintiff presents, with the additional fact that Maranda allegedly released
the p.m. yard in violation of safety protocol. Accordingly, Plaintiff has sufficiently pled an Eighth Amendment violation.
Dkt. 10 at 6.
B. PLAINTIFF STATES A RETALIATION CLAIM UNDER THE FIRST AMENDMENT
1. Applicable law
“To state a viable First Amendment retaliation claim, a prisoner must allege five elements: “(1) An assertion that [a prison official] took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); see Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995) (observing prisoner “must show that there were no legitimate correctional purposes motivating the actions he complained of”).
Filing grievances is a protected activity and retaliation against prisoners for filing grievances is prohibited as a matter of “clearly established law.” Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) (citing Rhodes, 408 F.3d at 566). Oral threats to file grievances, as opposed to actually filing grievances, are also protected, and that law is clearly established as of 2012, at the latest. See Gleason v. Placencia, No. 1:19-CV-00539-LJO-EPG (PC), 2020 WL 104693 at *4-6 (E.D. Cal. Jan. 9, 2020), report and recommendation adopted, No. 1:19-CV-00539-LJO-EPG (PC), 2020 WL 3497001 (E.D. Cal. June 29, 2020) (citing Entler v. Gregoire, 872 F.3d 1031, 1039-43 (9th Cir. 2017)).
Furthermore, with respect to the chilling effect, Plaintiffs do not need to show their “speech was actually inhibited or suppressed.” Lacey v. Maricopa Cty., 693 F.3d 896, 916 (9th Cir. 2012) (quoting Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283, 1300 (9th Cir. 1999)) (internal quotation marks omitted). Rather, courts look to “whether an officials' acts would chill or silence a person of ordinary firmness from future First Amendment activities.” Id. at 916-17.
With respect to the causal element, mere speculation that defendants acted out of retaliation is simply not sufficient to sustain a retaliation claim. Wood v. Yordy, 753 F.3d 899, 905 (9th Cir. 2014). However, “[b]ecause direct evidence of retaliatory intent rarely can be pleaded in a complaint, allegation of a chronology of events from which retaliation can be inferred is sufficient to survive dismissal.” Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012) (citing Pratt, 65 F.3d at 808).
Finally, with respect to the final element, a plaintiff successfully pleads that the adverse action did not reasonably advance a legitimate correctional goal by alleging, in addition to a retaliatory motive, that the defendant's actions were “arbitrary and capricious” or that they were “unnecessary to the maintenance of order in the institution.” Watison, 668 F.3d at 1114-15.
2. Analysis
Here, Plaintiff has stated a retaliation claim against Maranda. With respect to the third element, Plaintiff alleges that he was engaged in the protected activity of threatening to file grievances against Maranda. Dkt. 11 at 3; see also Gleason, 2020 WL 104693 at *4-6 (holding threats to file grievances are constitutionally protected). With respect to the first and fifth elements, Plaintiff alleges that Maranda immediately threatened to transfer Plaintiff out of his housing unit, and just over a week later, shot Plaintiff in the chest, seemingly without a legitimate penological purpose. Dkt. 11 at 4-5. With respect to the second element, given the timeline of events and Maranda's allegedly hostile response to Plaintiff's threats, the Court finds that Plaintiff's allegations are sufficient to raise an inference of retaliatory motive. Finally, with respect to the fourth element, an allegedly excessive use of force would certainly be sufficient to chill a person of ordinary firmness from filing grievances. Accordingly, taking this all together, Plaintiff has stated a retaliation claim against Defendant Maranda.
C. PLAINTIFF FAILS TO STATE A DUE PROCESS OR EQUAL PROTECTION CLAIM UNDER THE FOURTEENTH AMENDMENT
1. Applicable law
The Due Process Clause of the Fourteenth Amendment protects individuals against deprivations of “life, liberty, or property.” U.S. Const. amend. XIV, § 1. “A procedural due process claim has two distinct elements: (1) a deprivation of a constitutionally protected liberty or property interest and (2) a denial of adequate procedural protections.” Wilson v. Lynch, 835 F.3d 1083, 1098 (9th Cir. 2016) (internal quotations and citation omitted).
In order to establish the deprivation of a protected liberty interest, a prisoner must allege an “atypical, significant deprivation in which a State might conceivably create a liberty interest.” Sandin v. Conner, 515 U.S. 472, 486 (1995) (holding “segregated confinement did not present the type of atypical, significant deprivation in which a State might conceivably create a liberty interest”). In order to establish the denial of procedural protections afforded by due process, a prisoner must allege denial of certain requirements, including written notice, the right to call witnesses, the right to present documentary evidence, and the right to have a written statement by the factfinder as to the evidence relied upon and the reasons for the disciplinary action taken. See Serrano v. Francis, 345 F.3d 1071, 1077-78 (9th Cir. 2003).
The Equal Protection Clause requires the State to provide all persons in “its jurisdiction with equal protection of the laws[,]” U.S. Const. amend. XIV § 1. D, and that “all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 US. 432, 439 (1985). “To state a claim under 42 U.S.C. § 1983 for [an equal protection violation], a plaintiff must show that the defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998), cert. denied, 525 U.S. 1154 (1999). An equal protection claim does not arise “by conflating all persons not injured into a preferred class receiving better treatment than the plaintiff.” Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th Cir. 2005) (internal quotations and citation omitted).
Alternatively, a successful equal protection claim may also be brought by a “class of one,” where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); see also Engquist v. Or. Dep't of Agric., 553 U.S. 591, 601 (2008) (recognizing that “an equal protection claim can in some circumstances be sustained even if the plaintiff has not alleged class-based discrimination, but instead claims that she has been irrationally singled out as a so-called ‘class of one.'” (internal citation omitted)); North Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008) (“When an equal protection claim is premised on unique treatment rather than on a classification, the Supreme Court has described it as a ‘class of one' claim.”).
To succeed on a class of one claim, a plaintiff must demonstrate that defendant (1) intentionally (2) treated plaintiff differently than others similarly situated (3) without rational basis. Gerhart v. Lake Cnty, Mont., 637 F.3d 1013, 1022 (9th Cir. 2011). For treatment to be “intentional,” the plaintiff must show that the State intended to subject the plaintiff to differential treatment. Id. The plaintiff must also provide evidence displaying how the treatment plaintiff received was, in fact, different from others who are similarly situated. Id. Lastly, the plaintiff must provide evidence that there was no rational basis for the distinction in the treatment that plaintiff received versus those similarly situated. Id. at 1023 (referencing Willowbrook, 528 U.S. at 564).
However, in cases where plaintiffs bring both a retaliation claim and an equal protection claim based on retaliation, other federal courts have considered the retaliation claim, and dismissed the equal protection claim as duplicative. See Occhionero v. City of Fresno, No. CVF 05-1184 LJO-SMS, 2008 WL 2690431, at *8 (E.D. Cal. July 3, 2008), aff'd, 386 Fed.Appx. 745 (9th Cir. 2010) (noting “[f]ederal courts have precluded assertion of First Amendment claims as Equal Protection claims,” collecting cases, and holding the plaintiff's equal protection claim “of different treatment in retaliation for speech is a First Amendment claim which does not invoke the Equal Protection Clause”); Olson v. Bynum, No. 2:20-CV-2481-TLN-KJN PS, 2022 WL 2052696, at n.14 (E.D. Cal. June 7, 2022) (noting the plaintiff's equal protection and retaliation claim were “substantively indistinguishable” and warning that the court may recommend dismissal of the equal protection claim as duplicative).
2. Analysis
As an initial matter, it is unclear whether Plaintiff brings a due process claim, an equal protection claim, or both. Plaintiff cites the Fifth and Fourteenth Amendments in the heading for his first cause of action. Dkt. 11 at 4. However, despite bringing a due process claim in previous complaints, Plaintiff no longer cites due process anywhere in the instant SAC. Rather instead, he appears to bring an equal protection claim based on retaliation. Id. at 4-5 (“[T]he defendant acted… to deprive Plaintiff of his rights to equal protection of law and be free [of cruel] and unusual punishment in retaliation.”). To the extent Plaintiff brings this equal protection claim based on retaliation, it would be duplicative of his retaliation claim and thus the claim should be dismissed. See Occhionero, 2008 WL 2690431, at *8.
To the extent Plaintiff instead attempts to bring a due process claim, as he did in the FAC, Plaintiff has not explained, nor can the Court infer, a basis for such a claim. Accordingly, any Fourteenth Amendment claim based on an alleged violation of due process or equal protection rights is subject to dismissal.
V. LEAVE TO FILE A THIRD AMENDED COMPLAINT
For the foregoing reasons, the SAC is subject to dismissal. As the Court is unable to determine whether amendment would be futile, leave to amend is granted. See Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam).
Accordingly, IT IS ORDERED THAT by December 23, 2022 Plaintiff must choose one of the following three (3) options:
1. Plaintiff may file a Third Amended Complaint to attempt to cure the deficiencies discussed above. If Plaintiff chooses to file a Third Amended Complaint, he must clearly designate on the face of the document that it is the “Third Amended Complaint,” it must bear the docket number assigned to this case, and it must be retyped or rewritten in its entirety, preferably on the court-approved form. Plaintiff shall not include new defendants or allegations that are not reasonably related to the claims asserted in the SAC. In addition, the Third Amended Complaint must be complete without reference to the SAC, FAC, Complaint, or any other pleading, attachment, or document.
The Clerk of Court is directed to mail Plaintiff a blank Central District civil rights complaint form to use for filing the Third Amended Complaint, which the Court encourages Plaintiff to use. The Clerk of Court is also directed to mail Plaintiff a copy of his SAC (Dkt. 11) for his reference.
Plaintiff is advised that this Court's determination that the allegations in the SAC are insufficient to state a particular claim should not be seen as dispositive of that claim. Accordingly, Plaintiff is not required to omit any claim or defendant in order to pursue this action. However, if Plaintiff decides to pursue a claim in a Third Amended Complaint that this Court has found to be insufficient, then this Court, pursuant to the provisions of 28 U.S.C. § 636, ultimately may submit to the assigned district judge a recommendation that such claim be dismissed with prejudice for failure to state a claim, subject to Plaintiffs right at that time to file Objections with the district judge as provided in the Local Rules Governing Duties of Magistrate Judges.
2. Alternatively, Plaintiff may file a notice with the Court that he intends to stand on the allegations in his SAC. If Plaintiff chooses to stand on the SAC despite the deficiencies in the claims identified above, then the Court will submit a recommendation to the assigned district judge that portions of the SAC be dismissed with prejudice for failure to state a claim, subject to Plaintiffs right at that time to file Objections with the district judge as provided in the Local Rules Governing Duties of Magistrate Judges.
3. Finally, Plaintiff may voluntarily dismiss the action without prejudice, pursuant to Federal Rule of Civil Procedure 41(a). The Clerk of Court is directed to mail Plaintiff a blank Notice of Dismissal Form, which the Court encourages Plaintiff to use if they choose to voluntarily dismiss the action.
Plaintiff is explicitly cautioned that failure to timely file a Third Amended Complaint will result in this action being dismissed with prejudice for failure to state a claim, or for failure to prosecute and/or obey Court orders pursuant to Federal Rule of Civil Procedure 41(b).