Opinion
5:23-cv-00608-JLS (GJS)
06-27-2024
AHMAD RAHEEM PRICE, Plaintiff v. RUSLAN YERAMISHYN, et al., Defendants.
FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
GAIL J. STANDISH, UNITED STATES MAGISTRATE JUDGE
This Final Report and Recommendation is submitted to United States District Judge Josephine L. Staton, pursuant to 28 U.S.C. § 636 and General Order No. 0507 of the United States District Court for the Central District of California.
BACKGROUND
On October 27, 2022, Plaintiff filed a pro se civil complaint against “Does 1 to 11” in Riverside County Superior Court Case No. CVSW2207120. [Dkt. 1, Ex. 1.] The complaint alleged state law constitutional and statutory claims and identified the three named Defendants in this action - Ruslan Yeramishyn, Robert Gell, and David Holm (“Defendants”) - as Does 1, 2, and 3. [Id. ] On February 22, 2023, Defendants filed a demurrer to the complaint as well as a motion to strike the punitive damages request. [Dkt. 1, Exs. 12-13.] Before the scheduled hearing on the demurrer and motion, on March 22, 2023, Plaintiff filed a First Amended Complaint, which was brought against the three named Defendants and “Does 1 to 8.” [Dkt. 1, Ex. 14.] The First Amended Complaint repleaded the state law statutory claims, dropped the state law constitutional claim, and added a First Amendment-based claim under 42 U.S.C. § 1983. [Id. ] On April 7, 2023, Defendants removed Plaintiff's Riverside County Superior Court case to this District Court. [Dkt. 1.]
On April 17, 2023, Defendants filed a motion to dismiss the First Amended Complaint. [Dkt. 6.] Following further briefing, the Court issued a Report and Recommendation on July 10, 2023, which recommended granting the motion to dismiss. [Dkt. 23.] Plaintiff thereafter sought, and was granted, two extensions of time to file Objections to the Report and Recommendation, which he filed on September 12, 2023. [Dkt. 30.] On the same date, Plaintiff filed a Motion for Leave to File a Second Amended Complaint [Dkt. 28, “Amendment Motion”]. The Clerk's Office erroneously filed and docketed the proposed Second Amended Complaint Plaintiff had submitted without waiting for a ruling on the Amendment Motion [Dkt. 29, “SAC” or “Second Amended Complaint”].
The parties filed briefing addressing the Amendment Motion. [Dkts. 31-33.] On November 30, 2023, the Court issued an Order that granted the Amendment Motion and vacated its prior Report and Recommendation as moot. [Dkt. 34, the “November 30 Order.”] The Court directed Defendants to file a response to the Second Amended Complaint. [Id. ]
On December 28, 2023, Defendants filed a motion to dismiss the Second Amended Complaint. [Dkt. 35, “Motion.”] On February 4, 2024, Plaintiff filed his Opposition to the Motion [Dkt. 37], along with a Declaration [Dkt. 38]. On February 16, 2024, Defendants filed their Reply. [Dkt. 39.]
On April 17, 2024, the Court issued its Report and Recommendation with respect to the Motion. [Dkt. 41, “Report.”] The Court concluded that: the Third Cause of Action (which alleged claims under 42 U.S.C. §§ 1981, 1985(3), and 1983 (First Amendment/retaliation) fails to state claims upon which relief could be granted; the equal protection/Section 1983 claim alleged in the First through Third Causes of Action fails to state claims upon which relief could be granted; and Defendants are entitled to qualified immunity with respect to the remaining First Amendment claims alleged in the First and Second Causes of Action. The Report recommended that the Second Amended Complaint be dismissed without leave to amend and that this case be dismissed with prejudice.
Plaintiff sought and was granted an extension of time to file and serve his Objections to the Report. [Dkts. 42-43.] On June 5, 2024, Plaintiff filed his Objection to the Report [Dkt. 44, “Objection”], a request for judicial notice [Dkt. 45, “Request”], the declarations of third parties Terry Clark and Antonio Ortiz [Dkt. 46, “Clark Declaration,” and Dkt. 47, “Ortiz Declaration”], and Plaintiff's own declaration [Dkt. 48]. On June 18, 2024, Defendants filed a Reply to the Objection and its related submissions. [Dkt. 49.]
Plaintiff's Objection papers raise a variety of new matters, including a new case theory and possible new claim, as well as new evidence. A district court has discretion, but is not required, to consider evidence or arguments presented for the first time in objections to a report and recommendation. See Brown v. Roe, 279 F.3d 742, 744-45 (9th Cir. 2002); United States v. Howell, 231 F.3d 615, 621-22 (9th Cir. 2000). Plaintiff's submission of new evidence and case theories for the first time in the context of objections to a report and recommendation is inappropriate, especially given the numerous other instances in this case in which these new matters could have been raised. Nonetheless, the Court will address the new matters briefly in order to move this case forward. Of course, the Court leaves any ruling or decision to be made with respect to Petitioner's objections to the Report - including his new arguments and theories set forth in his Objection papers - to the United States District Judge for her consideration and de novo review, as the ultimate decision regarding the Motion must be made by her. The additional discussion included within this Final Report and Recommendation does not affect or alter the Court's original Report analysis and conclusions with respect to the merits of the Motion and the analysis of the viability of the Second Amended Complaint - the actual substance of the Court's recommendations - and, therefore, no further opportunity to file additional objections is necessary.
The Court has reviewed the record, the parties' arguments, and the relevant law carefully. For the following reasons, the Court again concludes that the Motion is meritorious and that dismissal of this action is required.
STANDARD OF REVIEW
A defendant is entitled to dismissal under Rule 12(b)(6) when a complaint fails to state a cognizable legal theory or alleges insufficient facts under a cognizable legal theory. Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. Conclusory allegations are insufficient. Id. at 678-79. Although a complaint need not set forth detailed factual allegations, “‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do,'” nor will “‘naked assertion[s] devoid of ‘further factual enhancement.'” Id. at 678 (alteration in original; citation omitted). The factual allegations of the complaint “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. In addition to appropriate factual allegations, a complaint must include fair “notice of the claim such that the opposing party may defend himself or herself effectively.” Starr v. Baca, 652 F.3d 1202, 1212 (9th Cir. 2011).
On review of a Rule 12(b)(6) motion, the Court generally accepts all properly-pleaded facts as true and draws all reasonable inferences in favor of the plaintiff. Gant v. Cnty. of L.A., 772 F.3d 608, 614 (9th Cir. 2014). For an allegation to be “entitled to the assumption of truth,” however, it must be well-pleaded, that is, it must set forth a non-conclusory factual allegation rather than a legal conclusion. Iqbal, 556 U.S. at 679. “[F]or a complaint to survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009) (internal quotation omitted).
Review under Rule 12(b)(6) is generally limited to the contents of a complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). However, courts may “consider certain materials - documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice - without converting the motion to dismiss into a motion for summary judgment.” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). A court need not accept as true on Rule 12(b)(6) review any allegations that contradict complaint exhibits or documents referred to in the complaint. See Sprewell, 266 F.3d at 988; Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295-96 (9th Cir. 1998). A plaintiff can “plead himself out of a claim” when his complaint allegations are contradicted by an attachment to the complaint. Sprewell, 266 F.3d at 988-89 (when attachment to complaint contradicted its allegations and was fatal to plaintiff's claim, it was proper to grant a Rule 12(b)(6) motion).
If a complaint is to be dismissed, “[u]nder Ninth Circuit case law, district courts are only required to grant leave to amend if a complaint can possibly be saved. Courts are not required to grant leave to amend if a complaint lacks merit entirely.” Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000); see also Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro se complaint without leave to amend unless ‘it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.'” (internal citations and quotation omitted)). Leave to amend is not appropriate, even given the liberal pleading standard for pro se litigants, when “the pleading ‘could not possibly be cured by the allegation of other facts.'” Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003) (internal quotation omitted).
DISCUSSION
I. The Second Amended Complaint: Allegations And Claims
A. Allegations
Plaintiff alleges that on or about February 8, 2021, he was detained at the Smith Correctional Facility jail and was provided with legal mail that had been opened and read outside his presence, apparently by Defendants Yeramishyan and Does 1 to 4. The mail was from his criminal defense attorneys and the envelope bore the Office of the Public Defender's name and address as sender, sometimes also including the name of his assigned deputy public defender. The Public Defender's office is “on record and file” with the Riverside County Sheriff's Office as Plaintiff's criminal defense attorneys. [SAC ¶¶ 14-16.]
Plaintiff filed a grievance about the opening of his mail outside of his presence, and the initial response he received indicated that, because the mail was not stamped “Legal Mail,” it was not considered legal mail. A subsequent grievance response indicated that mail room staff should treat mail from attorneys and the courts as legal mail that was to be opened in the inmate's presence. [SAC ¶¶ 1719.]
As of February 1, 2022, Plaintiff was housed at the Cois Byrd Detention Center jail. He filed a grievance on that date after Defendants Gell and Does 5-7 had opened and read mail from his criminal case attorneys outside his presence repeatedly. The response to the grievance stated that all outgoing and incoming legal mail had to be labeled as “Legal Mail.” Plaintiff appealed and the response again indicted that mail room staff should treat mail from attorneys and the courts as legal mail. [SAC ¶¶ 20-22.]
On May 21, 2022, Plaintiff was outside his cell while it was searched. When he came back to his cell, he saw that his legal materials and correspondence from his attorneys was pulled out, opened, and scattered on his bunk. He informed correctional officials and was told that mail from courts and his attorneys could be read. Plaintiff filed a grievance. [SAC ¶¶ 23-27.]
On July 26, 2022, Plaintiff filed three grievances. One related to the repeated opening and reading of mail sent by his criminal defense attorneys; another related to his pro se status; and the third addressed a threat made by Defendant Gell to restrict or suspend Plaintiff's ability to file grievances. On July 27, 2022, Defendant Holm issued a memorandum suspending and restricting Plaintiff's right to file grievances about the conditions of his confinement and about the opening and reading of his legal mail. [SAC ¶¶ 28-29.]
B. Claims
The First Cause of Action is a Section 1983 claim invoking the First and Fourteenth Amendments. Plaintiff alleges that, by opening and reading mail sent by his criminal defense attorneys, Defendants Yeramishyn, Gell, and Does 1 to 8 have interfered with his protected attorney-client communications and have chilled, inhibited, and violated his First Amendment right to free speech, that is, uncensored communications with his criminal defense attorneys. Plaintiff also alleges that this same behavior has denied him equal protection of the law. [SAC ¶¶ 30-33.]
The Second Cause of Action is a Section 1983 claim invoking the Sixth Amendment and the Fourteenth Amendment. Plaintiff alleges that the same matters involved in the First Cause of Action violated his right to counsel, interfered with attorney-client privilege and confidential communications, and denied him his right to equal protection of the law. [SAC ¶¶ 33-34.]
The Third Cause of Action is a claim brought under Section 1983 and 42 U.S.C. §§ 1981 and 1985(3) and invokes the First and Fourteenth Amendments. Plaintiff alleges that Defendant Holm issued his July 27, 2022 memorandum as retaliation for Plaintiff's prior grievances complaining about the opening and reading of mail sent by his criminal defense attorneys. Plaintiff alleges that Defendants Holm and Gell conspired to retaliate against Plaintiff for exercising his First Amendment right to file grievances about these events. He alleges that the conspiracy to retaliate against him denied him equal protection of the law. [SAC ¶¶ 36-38.]
II. Plaintiff's Request for Judicial Notice Should Be Denied And His New Evidence Should Not Be Considered.
As noted above, in support of his Objection to the Court's prior Report, Plaintiff has submitted several declarations and asks the Court to take judicial notice of two documents (a jail orientation handbook (revised January 2024) and a Riverside County Sheriff's Department procedures manual (dated March 2024)). The declarations and documents are submitted to support various new arguments and theories proffered for the first time in this case through the Objection papers, including that: Plaintiff has observed the envelopes for the mail sent to him by the Public Defender's Office and the envelopes “always” are stamped “legal mail” on the outside; Plaintiff, however, could not allege this in the Second Amended Complaint, because Defendants destroy all envelopes in which legal mail was sent to Plaintiff before providing the legal mail to him, thereby engaging in spoliation of evidence; and Defendants have done so pursuant to a policy that requires that the envelopes in which legal mail is sent to jail inmates are to be destroyed before distributing the legal mail to inmates.
This second contention, obviously, directly contradicts Plaintiff's assertion that he has observed the envelopes in which mail was sent by his criminal defense attorneys.
Plaintiff also asserts that the Court erred in connection with an observation it made about a document Plaintiff submitted in opposition to the Motion. In the Report, the Court noted (as it does again below) that in his Opposition to the Motion, Plaintiff submitted a Declaration that attached a single page from the Jail's Inmate Orientation Manual, which defined “Legal Mail.” The Court noted that this one-page document was not attached to the Second Amended Complaint and therefore declined to consider it, because doing so was outside the scope of Rule 12(b)(6) review. As an aside, the Court observed that: Plaintiff's proffer of this single page from the Manual was disingenuous given that, earlier in the case, he had submitted more complete portions of the relevant Manual pages and they were detrimental to the argument he was making in opposition to the Motion; but that in any event, this did not matter, because the document was not being considered. Plaintiff's Objection effort (at ECF p. 3) to show that the Court erred in describing the pertinent language in the salient pages of the Manual is not persuasive but again, this does not matter, because the Manual has not played any role in the Court's analysis of the Motion or its recommended resolution, whether now or in the prior Report. Accordingly, this portion of the Objection (at ECF p. 3) and the related documents that are the subject of the Request for judicial notice do not require any further discussion.
As noted above, Rule 12(b)(6) review is generally limited to the contents of a complaint, although certain documents may be considered. In ruling on a motion to dismiss under Rule 12(b)(6), a court may properly consider the allegations contained in the pleadings, exhibits attached to the complaint, if any, and matters properly subject to judicial notice. Swartz v. KPMGLLP, 476 F.3d 756, 763 (9th Cir. 2007). A court may take judicial notice of a matter of public record without converting a motion to dismiss into a motion for summary judgment, but only if the facts so noticed are not subject to reasonable dispute. Intri-Plex Techs., Inc. v. Crest Grp., Inc., 499 F.3d 1048, 1052 (9th Cir. 2007). If, on a Rule 12(b)(6) motion, “matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12(c). It is within the court's discretion whether to consider extrinsic evidence and thereby convert a Rule 12(b)(6) motion into one for summary judgment. See Hamilton Materials, Inc. v. Dow Chem. Corp., 494 F.3d 1203, 1207 (9th Cir. 2007).
As a threshold matter, the Court cannot consider the Clark Declaration, because it is unsigned. Due to the lack of a signature, it is not a proper declaration or evidence, even if it were the type of extrinsic document that could be considered under Rule 12(b)(6). See 28 U.S.C. § 1746. But even if the Clark Declaration were signed, the Court would not consider it or the Ortiz Declaration or Plaintiff's Declaration, because they do not set forth matters of public record regarding any “fact that is not subject to reasonable dispute,” as Rule 201(b) of the Federal Rules of Evidence requires before judicial notice may be taken. Plaintiff is attempting to use these three Declarations, and the documents attached to his Declaration, to prove that Defendants have a policy of destroying the envelopes in which legal mail is sent before jail inmates are provided with the mailings' contents, which according to him, constitutes spoliation of evidence. [Objection at ECF pp. 4-5.] Whether or not this is the jail's policy is an unresolved factual issue, but this is a factual issue that is entirely irrelevant to the legal issues presented by the pending Rule 12(b)(6) Motion and is not the proper subject of judicial notice, for the following reasons.
In the Objection papers, Plaintiff and his two fellow inmate declarants state that the jail's policy is not to provide envelopes containing legal mail to inmates and instead to destroy the envelopes before providing the legal mail to inmates. Plaintiff, however, has submitted the originals of several of these supposedly destroyed envelopes to this Court; indeed, the SAC has an original such envelope attached as an exhibit and incorporated by reference. See SAC Ex. F (described as “Embossed envelope mailed by criminal defense attorneys”). In his Objection to the Court's July 10, 2023 Report and Recommendation, Plaintiff attached another original envelope for a piece of mail he received from the Office of the Public Defender, which he indicated was representative of the envelopes that the Office “always” use to send him legal mail. [Dkt. 30 at 2, Attachment A.] In another case in this District, Plaintiff submitted yet a third such envelope as an attachment to his second amended complaint. [See Docket No. 5:23-cv-00671-JLS (GJS), Dkt. 15-1, Ex. F, envelope similar to the prior two, which Plaintiff described as “properly marked legal mail of Plaintiff's attorneys who's [ sic ] name/offices are always embossed or stamped on envelopes.”]
It is unclear how Plaintiff was able to provide these original envelopes to the Court if, as he asserts, the jail “always” destroys such envelopes before giving him his legal mail. Further adding to the confusion, in his Objection [at ECF p. 5], Plaintiff asserts that he has personally observed the envelopes in which his criminal defense attorneys have sent him legal mail - somehow despite their alleged prior destruction pursuant to jail policy - and they “are always stamped/marked ‘Legal Mail' on the outside envelopes when Plaintiff receives legal mail” - yet none of the three such envelopes that Plaintiff has provided to the Court contain such a designation. Moreover, in his Objection [ id. ], Plaintiff alleges that he could not have alleged in the SAC that his criminal defense attorneys' legal mailings came in envelopes marked with “Legal Mail” on them, because Defendants have destroyed all envelopes for legal mail before he is given his mail - yet he repeatedly has attached to Court filings original envelopes for legal mail sent by his criminal defense attorneys. Plaintiff's wildly varying and inconsistent allegations cannot all be true, plainly. It seems that Plaintiff is seeking to manufacture a factual dispute in this respect in order to defeat the Motion and/or to requires its conversion to a Rule 56 motion.
The United States District Judge should reject Plaintiff's efforts to muddy the waters through his interposition of new and inconsistent theories and allegations through the Objections and his submission of new evidence and related request that it be judicially noticed. The Court need not attempt to resolve any such dispute -real or manufactured - in order to resolve the Motion under Rule 12(b)(6), because the jail's policy in this respect, and whether it was followed or not as to Plaintiff, does not matter for Rule 12(b)(6) purposes. There is no spoliation of evidence claim alleged in the Second Amended Complaint. More importantly, whether or not Plaintiff observed or possessed the envelopes in which the Office of the Public Defender sent him mail does not matter at this pleading juncture, because Plaintiff has alleged clearly and under oath what those envelopes looked like, and the validity of Plaintiff's theory of a constitutional violation with respect to his legal mail - the gravamen of this lawsuit - has never rested on or even implicated as an ancillary matter whether or not the jail destroys the envelopes for legal mail.
Plaintiff's theory in this case has been consistent from the start - that the mail he received from his criminal defense attorneys was “properly marked” legal mail for First and Sixth Amendment purposes simply because his attorneys were listed as the sender on every envelope sent to him - not that the envelopes were “properly marked” because they also included the designation “Legal Mail” on the outside. Plaintiff has never made the latter assertion until now in his unsworn Objection. In the SAC's verified allegations, Plaintiff clearly alleges that the legal mail sent by his criminal defense attorneys “always” was sent in envelopes that bore only an embossed designation of the addressee as “Law Offices of the Public Defender,” or with the name of the particular public defender and her title (“Sup. Deputy Public Defender”), followed by the Office of the Public Defender's address. [SAC at ¶¶ 14, 15.] The SAC attaches and incorporates the original of one such envelope as Ex. F and, thus, that envelope may be considered under Rule 12(b)(6). Plaintiff's sworn allegations in this respect are unqualified; he states them as fact, not that they are based on information or belief. The SAC does not allege that the envelopes his legal mail was sent in bore any other designation indicating that it was legal mail; indeed, the copy of the envelope Plaintiff has attached to the SAC as being representative of the legal mailings he received from his criminal defense attorneys does not bear any other such designation. Accordingly, as stated in the Prior Report (and as again stated below), for Rule 12(b)(6) review purposes, the Court must assume as true the SAC's explicit allegations about what was contained on the exterior of the envelopes in which Plaintiff's legal mail was sent to him.
In their Reply [at 3-6], Defendants make this point and list the wealth of filings by Plaintiff in this case making clear that he has never claimed that the envelopes containing mail sent to him by the Office of the Public Defender contained the designation “Legal Mail” on their exteriors but, rather, that the envelopes' inclusion of that Office's name and address on the exteriors was in itself sufficient to satisfy the “properly marked” requirement discussed infra. The Court need not repeat Defendants' accurate and persuasive showing here. Plaintiff's turnabout assertions now in his Objection [at ECF p. 5]to wit, that he has “never” asserted that the mail received from the Office of the Public Defender did not contain the designation “Legal Mail” on the envelopes and that such a designation “always” was included on the envelopes - not only are implausible but are directly belied by his filings (including the verified SAC) and the actual envelopes showing otherwise that he has submitted to the Court. These new assertions also raise Fed.R.Civ.P. 11 concerns.
The new evidence and arguments presented through the Objections that seek to contradict the SAC's sworn allegations and envelope exhibit bear on Plaintiff's First and Second Cause of Action claims based on the opening of legal mail sent to him by his criminal defense attorneys outside his presence. As discussed below in Section V, the Motion's request to dismiss these claims presents a purely legal issue rather than a factual one, namely, whether legal mail sent in envelopes of the type described through the SAC's sworn allegations and as shown by attached SAC Ex. F constitute “properly marked legal mail” within the meaning of Supreme Court and Ninth Circuit precedent and, relatedly, whether Defendants are entitled to qualified immunity as to these two claims. This purely legal issue can be resolved under Rule 12(b)(6) without turning to extrinsic evidence of the type proffered through Plaintiff's Objection submissions and without trying to resolve the various factual disputes he has attempted to create through his inconsistent assertions set forth in the Objection. For Rule 12(b)(6) purposes, it is irrelevant whether or not the Jail has a policy of destroying envelopes in which legal mail is sent to inmates. Plaintiff has stated, under penalty of perjury in the SAC, exactly how those envelopes for the legal mail in question were marked and provided the Court with an attached example. Those sworn allegations and the attached exhibit must guide the Court's Rule 12(b)(6) analysis, not Plaintiff's belated attempt to distract by claiming, as he does in the Objection, that spoliation of evidence has occurred and/or that the envelopes contained additional designations, and his attempt to prove such through various declarations and attached Jail manuals and policy statements. Matters subject to reasonable dispute are not properly subject to judicial notice.
As Defendants correctly observe in their Reply, the Jail manual and policy statement that are the subject of Plaintiff's request for judicial notice bear early 2024 dates, yet the events in question are alleged to have occurred in 2021 and 2022, two to three years earlier. There has been no showing that the mail policies reflected in these 2024 documents were the same in 2021 and 2022. Thus, for this reason alone, taking judicial notice of them would not be appropriate under Fed.R.Evid. 201(b).
Accordingly, there is no valid reason to convert the Motion to one under Rule 56, nor is there any valid reason to consider the new evidence Plaintiff seeks to present through the Objection papers. The Court recommends that Plaintiff's Request seeking judicial notice be denied and that the evidence submitted with the Objection not be considered.
III. The Third Cause Of Action Fails to State A Viable Claim.
The Third Cause of Action alleged in the Second Amended Complaint contains three claims: one brought under 42 U.S.C. § 1981; another brought under 42 U.S.C. § 1985(3); and the third brought under Section 1983 based on a First Amendment retaliation theory. Each claim rests on Plaintiff's contention that Defendant Holm's above-noted July 27, 2022 memorandum was issued in retaliation for the grievances Plaintiff had filed about jail employees opening and reading his legal mail outside his presence. Plaintiff alleges that Defendants Holm and Gell conspired to retaliate against him.
A. Section 1981 Claim
The Section 1981 claim asserted through the Third Cause of Action is not viable, because the Ninth Circuit has made clear that Section 1981 does not provide for an implied cause of action against state actors. See Yoshikawa v. Seguirant, 74 F.4th 1042 (9th Cir. 2023) (en banc) (reversing the district court's denial of qualified immunity based on a claim brought under Section 1981 and holding that a plaintiff seeking to enforce substantive rights under Section 1981 must bring his claim under Section 1983). For that reason alone, the Section 1981 claim necessarily fails.
If the Court were to construe the Third Cause of Action liberally and assume that Plaintiff, instead, seeks to raise a Section 1983 claim based on Defendants' asserted violation of Section 1981, the claim nonetheless does not come close to pleading a viable theory of a Section 1981 violation. There are no facts alleged to indicate that the events complained of were motivated by an intent to discriminate on the basis of race, as is required. See, e.g., General Building Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 387-391 (1982) (Section 1981 prohibits intentional acts of racial discrimination); Stones v. Los Angeles Cmty. Coll. Dist., 796 F.2d 270, 272 (9th Cir. 1986) (“the Supreme Court has limited section 1981 to claims of racial discrimination” and “a plaintiff must prove that the defendant acted against him with discriminatory intent”).
In his Opposition to the Motion, Plaintiff ignores entirely Defendants' argument that the Section 1981-based claim alleged in the Third Cause of Action fails for the reasons set forth above. The Court's November 30 Order earlier had advised Plaintiff of these defects in his claim, yet he has not addressed them. There is nothing argued or alleged in the Opposition that could cause the Court to believe that Plaintiff is able to cure the obvious and fatal defects in his Section 1981-based claim. In addition, Plaintiff's Objection to the Report does not mention, much less object to, the Court's above analysis and conclusion. Accordingly, as amendment appears futile, the Court recommends that the Section 1981-based claim in the Third Cause of Action be dismissed without leave to amend and with prejudice.
B. Section 1985(3) Claim
To state a claim under Section 1985(3), a complaint must allege: (1) a conspiracy; (2) to deprive any person or a class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; (3) an act by one of the conspirators in furtherance of the conspiracy; and (4) a personal injury, property damage or a deprivation of any right or privilege of a citizen of the United States. Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992) (citing United Brotherhood of Carpenters and Joiners of America v. Scott, 463 U.S. 825, 828-29 (1983). The second of these four elements requires that, in addition to identifying a legally protected right, a plaintiff must demonstrate that the deprivation was motivated by “some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action.” Id. (citing Griffith v. Breckenridge, 403 U.S. 88, 102 (1971). The Section 1985(3) claim included in the Third Cause of Action fails for the same reason as his possible Section 1983 claim based on an asserted violation of Section 1981, namely, a complete failure to allege any facts that could support a finding of the required race or class-based discriminatory animus.
In addition, a mere conclusory allegation of conspiracy is insufficient to support a viable Section 1985(3) claim. See Steshenko v. Gayrard, 44 F.Supp.3d 941, 957 (N.D. Cal. 2014); see also Holgate v. Baldwin, 425 F.3d 671, 676 (9th Cir. 2005) (upholding dismissal of Section 1985(3) claim where complaint “failed to allege evidence of a conspiracy and an act in furtherance of that conspiracy, which are required elements of a § 1985(3) action”). Rather, a plaintiff must allege specific facts from which a conspiracy may be inferred, such as: (1) the existence of a specific agreement; (2) among specific conspirators; (3) the scope of the conspiracy; (4) the conspirators' roles in the conspiracy; (5) the conspiracy's timing and operation; and (6) the acts made in furtherance of the conspiracy. See Steshenko, 44 F.Supp.3d at 957. Conspiracy allegations “must satisfy” the above- noted Iqbal pleading standards. Lacey v. Maricopa County, 693 F.3d 896, 935 (9th Cir. 2012) (en banc). Thus, to allege a conspiracy between Defendants Gell and Holm, Plaintiff was required to plead specific facts plausibly suggesting the existence of a conspiracy. Iqbal, 556 U.S. at 678; see also Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998) (plaintiff must allege specific, material facts to show an agreement among the alleged conspirators to violate the plaintiff's civil rights); Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 929 (9th Cir. 2004) (“To state a claim for conspiracy to violate constitutional rights, the plaintiff must state specific facts to support the existence of the claimed conspiracy.”); Sanchez v. City of Santa Ana, 936 F.2d 1027, 1039 (9th Cir. 1990) (“A mere allegation of conspiracy without factual specificity is insufficient to support a claim.”). The Second Amended Complaint fails to make any of these required allegations, instead proffering only the conclusory assertion that Defendants Holm and Gell “conspired,” bereft of supporting factual allegations.
In his Opposition to the Motion, Plaintiff ignores entirely Defendants' argument that the Section 1985(3) claim alleged in the Third Cause of Action fails for the reasons set forth above, as well as the Court's earlier advice in the November 30 Order of these defects. There is nothing argued or alleged in the Opposition that could cause the Court to believe that Plaintiff is able to cure the defects in his Section 1985(3) claim. In addition, Plaintiff's Objection to the Report does not mention, much less object to, the Court's above analysis and conclusion. Accordingly, as amendment appears futile, the Court recommends that the Section 1985(3) claim in the Third Cause of Action be dismissed without leave to amend and with prejudice.
C. Section 1983/Retaliation Claim
With respect to the First-Amendment-based retaliation claim asserted through the Third Cause of Action under Section 1983, in the prison context, a viable claim of this nature entails five basic elements: (1) an assertion that a state actor 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). Adverse action is action that “would chill a person of ordinary firmness” from engaging in that activity. Pinard v. Clatskanie School District, 467 F.3d 755, 770 (9th Cir. 2006). An adverse action may be a harm or a threat of harm, and may be explicit or implied. See Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir. 2009). Though an adverse action need not be an independent constitutional violation, inconsequential or de minimis harms do not constitute adverse actions. Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (to support a claim, a harm must be “more than minimal”).
As to element (2) - causation - “mere speculation that defendants acted out of retaliation is not sufficient.” Wood v. Yordy, 753 F.3d 899, 904 (9th Cir. 2014). A plaintiff must show that his protected conduct was “the ‘substantial' or ‘motivating' factor behind the defendant's conduct.” Brodheim, 584 F.3d at 1271. The causation must be but-for causation: in other words, without the retaliatory animus, the adverse action would not have been taken. Hartman v. Moore, 547 U.S. 250, 260 (2005). A plaintiff bears the burden of demonstrating that his exercise of his First Amendment rights was the substantial or motivating factor behind the alleged retaliatory act. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). The plaintiff must show “a causal connection between the adverse action and the protected conduct.” Watison, 668 F.3d at 1114. With respect to element (5), the plaintiff bears the burden of proving the absence of a legitimate correctional goal for the conduct of which he complains. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995).
Plaintiff's retaliation claim rests entirely on Defendant Holm's July 27, 2022 memorandum, which temporarily (for 30 days) suspended Plaintiff's ability to submit some types of grievances based on his asserted abuse of the grievance process. [See SAC Ex. E.] Citing the relevant California Code of Regulation provision and County correctional policy, the memorandum explained why it had been issued, namely, that over the past year and a half, Plaintiff had filed 47 grievances, which included the submissions of multiple grievances on the same day about related issues, filings regarding the same issue without allowing time for a response, repeated filings for issues that had already been addressed or resolved, and repeated filings that were frivolous, malicious, or included inappropriate language. The memorandum also explained that, during the 30-day period covered by the memorandum, Plaintiff remained able to file grievances that concerned an immediate risk to his well-being, staff misconduct, use of force, lack of proper medical and mental health care, failure to protect, and sexual abuse, and that if the grievances he submitted fell within these categories, they would be acted upon.
The retaliation claim in the Third Cause of Action is wholly conclusory and bereft of factual allegations that could support the causation and absence of a legitimate correctional goal elements of the claim. The Second Amended Complaint's allegation that the Holm memorandum suspended and restricted Plaintiff's ability to file grievances about the conditions of his confinement entirely is not correct, as it is belied by the substance of the memorandum itself, which made clear that there remained a host of conditions of confinement challenges that Plaintiff could raise through grievances that were not subject to the 30-day suspension. Moreover, Plaintiff does not allege that he actually was chilled and precluded from filing any such grievances during this 30-day period. In addition, the claim is bereft of any factual allegation that could support the conclusory assertion that Defendant Holm and Defendant Gell conspired to retaliate against Plaintiff. There is no allegation that Gell did anything in this respect; rather, the claim relies solely on the existence of the Holm memorandum and nothing else.
In his Opposition and relatedly-filed Declaration, Plaintiff disputes the truth of the statements made in the Holm memorandum, proffering a host of new factual assertions regarding the validity and propriety of the 47 grievances he earlier had filed and which had led to the issuance of the memorandum. In his Declaration, Plaintiff asserts that he filed 47 grievances over the time frame in issue (approximately a year and a half) because he was not receiving responses or the return of paperwork he had submitted, and further, that none of his grievances were malicious, frivolous, or contained inappropriate language. These additional factual allegations are not set forth in the Second Amended Complaint. The Court's Rule 12(b)(6) task here is to assess the sufficiency of the allegations actually set forth in the Second Amended Complaint, as possibly supplemented by exhibits appended to it or properly incorporated matters. Additional extraneous factual allegations are relevant only to the extent that, if they were to be included in an amended pleading, they might result in a cognizable claim, and thus, on the issue of whether amendment should be afforded.
The pleading before the Court fails to state a viable First Amendment retaliation claim, because there are no facts alleged that, if proven, could support finding two of the elements of this claim to be satisfied. Plaintiff relies solely on the existence of the July 27, 2022 Holm memorandum and nothing else, and this is not enough to state a viable retaliation and conspiracy to retaliate claim. The Court apprized Plaintiff of these defects through its November 30 Order, yet Plaintiff has not proffered any additional facts he might be able to allege - were leave to amend be granted - that could satisfy the claim's required elements. Plaintiff's declaration assertions that his numerous grievances were justified and meritorious do not supply those missing factual allegations, even if they were to be included in an amended version of the claim. Accordingly, the Court recommends that the First Amendment/retaliation Section 1983 claim alleged in the Third Cause of Action of the Second Amended Complaint be dismissed without leave to amend and with prejudice.
IV. Plaintiff's Equal Protection Claims Must Be Dismissed.
At the tail end of each of the First, Second, and Third Causes of Action, Plaintiff tacks on a statement that the matters alleged in each claim denied him “equal protection of the law.” This bare assertion is inadequate to state an Equal Protection Clause-based Section 1983 claim upon which relief can be granted.
The threshold allegation for any equal protection-based Section 1983 claim must be that the plaintiff was similarly situated to others who received different treatment. See Fraley v. Bureau of Prisons, 1 F.3d 924, 926 (9th Cir. 1993). A plaintiff must plead intentional unlawful discrimination or allege facts from which discriminatory intent may be inferred. Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1026 (9th Cir. 1998); see also Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001) (“To state a claim under 42 U.S.C. § 1983 for violation of the Equal Protection Clause of the Fourteenth Amendment 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.”) (citation omitted). Intentional discrimination means that a defendant acted at least in part because of a plaintiff's protected status. Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003); Barren v. Harrington, 152 F.3d 1193, 1194-95 (9th Cir. 1998). In order to show a discriminatory purpose sufficient to implicate the Equal Protection Clause, a plaintiff must show the “particular course of action was taken at least in part ‘because of,' not merely ‘in spite of,' its adverse effects upon an identifiable group.” Lee, 250 F.3d at 687 (citation omitted).
The Second Amended Complaint does not come close to meeting the above noted Iqbal standards for stating a Section 1983 claim based on an asserted equal protection violation that is plausible on its face. See Iqbal, 556 U.S. at 686-87 (rejecting the argument that a general allegation of discriminatory intent - along the lines of “Defendants discriminated against me because of my race and with no legitimate reason” - suffices to state a viable equal protection claim, because a plaintiff must plead sufficient facts to support an allegation that a defendant acted with discriminatory intent). The Second Amended Complaint fails to allege any facts plausibly suggesting that Defendants, or any of them, acted with the intent or purpose of discriminating against Plaintiff due to his membership in a protected class. Plaintiff's brief, conclusory assertion at the end of each of his three causes of action that the events asserted deprived him of equal protection lacks any underlying supporting factual allegations sufficient to raise a facially plausible equal protectionbased Section 1983 claim for relief.
In his Opposition, Plaintiff ignores the above-noted requirements for stating a viable equal protection-based claim, notwithstanding that they were clearly explained to him in the Court's November 30 Order and reiterated by Defendants in their Motion. Plaintiff does not contend that the Defendants acted with the required discriminatory intent and the Second Amended Complaint does not argue that they did so. Plaintiff does not identify a single fact he could allege - if allowed leave to amend - that could supply a basis for finding the required intent by Defendants (or any of them) to discriminate against Plaintiff based on his membership in a protected class. Instead, Plaintiff cites to an assertion made in his concurrently-filed Declaration to the effect that he was the only inmate at the Jail - or indeed in any prison anywhere - having his legal mail opened outside his presence. Plaintiff asserts that, unlike him, “similarly situated” inmates at the Jail and in prisons apparently across the United States have their legal mail opened in their presence. Thus, it appears that Plaintiff may be attempting to assert a “class of one” equal protection theory through these new factual allegations. The question is whether he should be afforded leave to amend to do so.
The Supreme Court has “recognized successful equal protection claims 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.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam). If “an individual is being singled out by the government, the specter of arbitrary classification is fairly raised, and the Equal Protection Clause requires a ‘rational basis for the difference in treatment.'” Engquist v. Oregon Dep't of Agr., 553 U.S. 591, 602 (2008) (quoting Olech, 528 U.S. at 564).
Ultimately, “to succeed on his ‘class of one' claim,” Plaintiff must allege and demonstrate that the Defendants: (1) intentionally (2) treated him differently than other similarly situated inmates, (3) without a rational basis. See Gerhart v. Lake Cty., Mont., 637 F.3d 1013, 1022 (9th Cir. 2011). “A class of one plaintiff must show that the discriminatory treatment ‘was intentionally directed just at him, as opposed ... to being an accident or a random act.'” North Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008) (citation omitted). “‘[C]lass-of-one plaintiffs must show an extremely high degree of similarity between themselves and the persons to whom they compare themselves,'” and “‘must establish that (i) no rational person could regard the circumstances of the plaintiff to differ from those of a comparator to a degree that would justify the differential treatment on the basis of a legitimate government policy; and (ii) the similarity in circumstances and difference in treatment are sufficient to exclude the possibility that the defendants acted on the basis of a mistake.'” Ruston v. Town Bd. For Town of Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010) (citation omitted). The Ninth Circuit, like most other Circuits, has held clearly that to be “similarly situated” in the class of one context, the plaintiff “must be similarly situated to the proposed comparator in all material respects.” SmileDirectClub, LLC v. Tippins, 31 F.4th 1110, 1123 (9th Cir. 2022); see also Perano v. Township of Tilden, 423 Fed.Appx. 234, 238 (3d Cir. 2011) (“[t]o be ‘similarly situated,' parties must be ‘alike in all relevant aspects,' and “at the motion to dismiss stage, [a plaintiff] must allege facts sufficient to make plausible the existence of such similarly situated parties”) (citation omitted); Bokaei v. City of Murrieta, No. 5:15-cv-01270-CBM, 2015 WL 13918145, at *3 (C.D. Cal. Nov. 12, 2015) (“The alleged similarity between the plaintiff and ‘others similarly situated' must reflect an ‘apples to apples' type of comparison.”) (citation omitted).
In addition, under Iqbal, it is not enough to allege generally that unidentified similarly situated persons are treated differently; a complaint must allege specific instances in which this occurred and identify the similarly situated individuals. Ruston, 610 F.3d at 59. Simply alleging conclusorily that there were similarly situated individuals is not enough; the complaint must identify such individuals as well as explain how they actually were similarly situated to the plaintiff in all material respects. See Purze v. Village of Winthrop Harbor, 286 F.3d 452, 455 (7th Cir. 2002) (plaintiffs “must demonstrate that they were treated differently than someone who is prima facie identical in all relevant respects”); Buchanan v. Maine, 469 F.3d 158, 178 (1st Cir. 2006) (“Plaintiffs claiming an equal protection violation must first identify and relate specific instances where persons situated similarly in all relevant aspects were treated differently.”) (internal quotation marks and citation omitted); Vinatieri v. Mosley, 787 F.Supp.2d 1022, 1031 (N.D. Cal. 2011) (plaintiff challenging police failure to arrest neighbor who assaulted him failed to state an equal protection claim when he failed to identify “to whom, exactly, he was ‘similarly situated'”), aff'd, 2013 WL 3389360 (9th Cir. Jul. 9, 2013).
Plaintiff's attempt, through his Opposition, to recast his equal protection claim as one proceeding on a “class of one” theory necessarily fails. Plaintiff alleges that his mail in question bore the address of the public defender's office as sender but was not marked as “Legal Mail” in any other respect, and that this mail should not have been opened outside his presence. He now argues that he is the only inmate in the Riverside County Jail system or in any prison that has had mail sent by his attorney opened outside his presence; all other inmates have such mail opened and inspected while they are present. [Opposition at 10.]
It is simply implausible that Plaintiff, as he expressly alleges, is similarly situated in all relevant respects to all inmates in all prisons, i.e., that all prison inmates receive legal mail that lists a public defender's or attorney's office as sender but do not bear the words “Legal Mail” and yet, unlike Plaintiff, all of them have such mail opened only in their presence. To the extent that Plaintiff limits his claim of being similarly situated to all other inmates in the Riverside County Jail system, it nonetheless remains implausible that all other jail inmates received legal mail that, like Plaintiff's mail, failed to contain any designation that it was legal mail other than listing an attorney or the public defender's office as sender. Critically, Plaintiff has not identified any inmate who received mail in the same manner as that sent to him, namely, listing the public defender's office in the sender section of the envelope but not bearing any stamp or other indication that it was “Legal Mail.” To the extent that a jail inmate's mail bore the words “Legal Mail” on the outside and such mail was opened only in the inmate's presence, that inmate would not be similarly situated to Plaintiff. “Evidence of different treatment of unlike groups does not support an equal protection claim.” Thornton v. City of St. Helens, 425 F.3d 1158, 1168 (9th Cir. 2005).
Plaintiff's bare conclusory assertion that all other jail and prison inmates are similarly situated to him is inadequate, as it lacks any factual basis for satisfying the above-described similarly situated individual pleading requirements.
Even if Plaintiff had identified at least one other actually similarly situated individual who was treated differently than he was, Plaintiff also has not alleged any factual basis for satisfying the requirement that Defendants, and each of them, acted with the intent to treat Plaintiff differently than all other jail inmates who were in the same position as him with respect to mail not marked as “legal mail.” There is not a single fact alleged in the Second Amended Complaint, nor in Plaintiff's Opposition, that can be construed liberally as bearing on this pleading requirement.
Without specific allegations showing that Defendants intentionally treated Plaintiff differently from persons whose circumstances were similar to Plaintiff's in all relevant respects, there is no factual basis for any “class of one” equal protection claim, even assuming Plaintiff intended to bring such a claim. See McDonald v. Village of Winnetka, 371 F.3d 992, 1002 (7th Cir. 2004) (homeowner failed to establish class of one equal protection claim when he failed to identify anyone similarly situated to him who was intentionally treated differently in connection with investigation of fire). In these circumstances, courts in this Circuit routinely dismiss similarly conclusory “class of one” claims for failure to state a claim upon which relief can be granted. See, e.g., Davies v. Dep't of Public Safety, No. 23-00382-JMS, 2023 WL 6392430, at *4 (D. Haw. Oct. 2, 2023) (dismissing prisoner's class of one claim when he failed to plausibly allege that he was similarly situated in all material respects to inmates who, unlike him, were housed outside the secured housing unit); Mancini v. City of Cloverdale Police Department, No. 15-cv-02804-JSC, 2015 WL 4512274, at *5 (N.D. Cal. July 24, 2015) (although complaint alleged defendant acted with an irrational motive, it failed to include any allegations explaining to whom plaintiff was similarly situated); Le Fay v. Le Fay, No. 1:13-cv-1362 AWI, 2015 WL 106262, at *7 (E.D. Cal. Jan. 7, 2015) (concluding that class of one equal protection claim for failure to investigate must be dismissed due to the absence of allegations that “there exists a group of similarly situated persons to whom Plaintiffs compare themselves”); Nails v. Haid, No. SACV 12-0439 GW (SS), 2013 WL 5230689, at *4-5 (C.D. Cal. Sept. 17, 2013) (allegations that defendants have merely done some harmful act against the plaintiff, without more and without failing to identify with specificity the similarly situated persons to whom the plaintiff was to be compared, fail to state an equal protection “class of one” claim); Solis v. City of Fresno, No. 1:11-CV-00053 AWI GSA, 2011 WL 5825661, at *7 (E.D. Cal. Nov. 17, 2011) (dismissing plaintiff's class of one equal protection claim when the complaint was “devoid of facts indicating whether these unnamed individuals were prima facie identical to Plaintiff in all relevant aspects” and did “not allege a single instance in which a similarly situated person was treated differently by” the defendants).
Dismissal of the equal protection claim cursorily alleged in the First, Second, and Third Causes of Action is required here for the same reasons. The Court recommends that such dismissal be without leave to amend and with prejudice, given that Plaintiff has failed entirely to provide any basis for believing that amendment would not be futile. See Evans Creek, LLC v. City of Reno, No. 2116620, 2022 WL 14955145, at *2 (9th Cir. Oct. 26, 2022), cert. denied, 143 S.Ct. 2561 (2023) (affirming dismissal under Rule 12(b)(6), without leave to amend, of class of one/equal protection claim brought under Section 1983 when the complaint “provides virtually none of the material facts on which” the similarly situated determination could be made, including failing to allege any facts about other allegedly similar situations or how the City's decisions in those other situations differed from that in the plaintiff's situation).
Plaintiff's attempt to salvage the equal protection claim through his Objection papers only confirms that dismissal is warranted. Although, as noted above, the Court has concluded that the new evidence (Clark and Ortiz Declarations and the new evidence attached to Plaintiff's request for judicial notice) should not be considered on the required Rule 12(b)(6) review of the Motion, it can be noted that the gist of this new evidence is Plaintiff's contention that all jail inmates are subjected to the policy of which he complains, that is, having the envelopes in which their legal mail is sent destroyed and delivering only the contents of the legal mailings distributed to them. In short, if amendment were to be allowed to include these new allegations, they would show on their face that Plaintiff is not being treated differently than any other jail inmates. Plaintiff's assertion that prison inmates are allowed to retain the envelopes in which their legal mail is sent [Objection at ECF p. 8] is meaningless, as he does not identify any such putative prison inmate who is similarly situated to him, and in any event, Plaintiff is not in prison.
V. The First And Second Causes Of Action Should Be Dismissed Pursuant To The Qualified Immunity Doctrine.
By the First Cause of Action, Plaintiff contends that, by opening and reading mail sent to him by his criminal defense attorneys outside of his presence, Defendants Yeramishyn, Gell, and Does 1 to 8 interfered with his protected attorney-client communications and chilled, inhibited, and violated his First Amendment right to free speech, that is, uncensored communications with his criminal defense attorneys. By his Second Cause of Action, Plaintiff alleges that this same conduct by these same Defendants violated his Sixth Amendment right to counsel and interfered with attorney-client privilege and confidential communications.
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). For a prisoner's mail to qualify as legal mail subject to federal constitutional protection of the type Plaintiff asserts, the mail must constitute privileged communications between the prisoner and his or her attorney. See Wolff v. McDonnell, 418 U.S. 539, 576-77 (1974). To state a colorable Section 1983/First Amendment claim for the improper opening of legal mail, an inmate plaintiff must allege not only that the defendant opened the mail outside of the plaintiff's presence but also must adequately allege facts showing that the mail constituted “legal mail” within the meaning of federal precedent and that the mail was “properly marked” as legal mail. See Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1211-12 (9th Cir. 2017) (prisoners have a “First Amendment interest in having properly marked legal mail opened only in their presence”). The same is true as to Section 1983 claims resting on the Sixth Amendment, i.e., the mail at issue opened outside the inmate's presence must have been “properly marked” as legal mail. See Mangiaracina v. Penzone, 849 F.3d 1191, 1196 (9th Cir. 2017).
This case is at the pleading stage, and thus, there is no evidence before the Court or factfinding to be done with respect to whether or not Defendants actually opened and read incoming legal mail sent to Plaintiff. There also is no evidence properly before the Court regarding the physical appearance of each of the envelopes containing the legal mail at issue, i.e., any documents establishing just what the envelope for each piece of mail at issue looked like, nor is actual factfinding on this question necessary or appropriate. As noted above, however, Plaintiff has clearly alleged what each such envelope looked like, under oath, and has attached to the Second Amended Complaint and incorporated by reference one such envelope, the appearance of which is consistent with his verified allegations. For purposes of Rule 12(b)(6) review, the Court will assume to be true the Second Amended Complaint's allegations that: more than one piece of mail was sent to Plaintiff at the jail in envelopes listing the “Law Offices of the Public Defender” or “Andrea Rathburn (SBN 197695) Sup. Deputy Public Defender” as sender; the public defender's office was “on file and record” with the jail as Plaintiff's criminal defense counsel; and on more than one occasion in 2021 and 2022, mail of this type was opened and read outside his presence. With these assumptions in place, the lynchpin question here is whether the mail at issue was “properly marked” legal mail for federal constitutional purposes within the meaning of governing caselaw. See Wolff, 418 U.S. at 576-77; Hayes, 849 F.3d at 1211-12 (a plaintiff must “clarify who sent the mail or whether it was properly marked as ‘legal mail'”); Mangiaracina, 849 F.3d at 1196 (concession by jail officials that two pieces of mail in issue actually were “legal mail” sufficient to satisfy the “properly marked” requirement).
In the various iterations of his Complaint, Plaintiff has never alleged that Defendants opened his outgoing legal mail.
In his Opposition, Plaintiff repeatedly asserts that Defendants have admitted that they opened and read over seven items of Plaintiff's incoming legal mail, citing to copies of grievances appended to the Second Amended Complaint. The Court does not view these exhibits as demonstrating any such admission by Defendants, and in their Reply, Defendants expressly dispute that any such admission was made. At this stage of the case (which is still in the pleading posture), the Court is relying only on the allegations of the Second Amended Complaint (and its attached exhibits). Accordingly, the Court's above-noted assumption that mail received from Plaintiff's defense counsel was opened on more than one occasion outside Plaintiff's presence is just that - an assumption for argument's sake - and should not be construed as any kind of evidentiary finding.
Neither the Supreme Court nor the Ninth Circuit has provided a clear answer as to how legal mail must be labeled to be “properly marked” in order to fall within existing First and Sixth Amendment caselaw. The Ninth Circuit, to date, has expressly declined to “decide whether mail clearly sent from a lawyer to an inmate but lacking the ‘Legal Mail' designation may be opened outside the presence of the inmate.” Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir. 1996), opinion amended on denial of reh'g, 135 F.3d 1318 (1998); see also Mangiaracina, 849 F.3d at 1195-96 (confirming that in Keenan, the Ninth Circuit left this issue open, and not resolving it); Nye v. Tapia, No. 4:21-cv-05099-SMJ, 2022 U.S. Dist. LEXIS 167802, at *8 (E.D. Wash. Sept. 16, 2022) (finding the same lack of clarification under both Supreme Court and Ninth Circuit precedent); Evans v. Gower, No. 2:17-CV-01162-MK, 2022 WL 3226968, at *8 (D. Or. Aug. 10, 2022) (“Since Hayes, the Ninth Circuit has left open the question of what exactly constitutes ‘properly marked' legal mail.”).
In Opposition to the Motion, Plaintiff argues that the “properly marked” requirement is satisfied as long as the mailing envelope “is clearly addressed as originating from an Attorney or Law firm/Law Organization.” [Opposition at 10.] He contends that, because the mail at issue was sent in envelopes listing the public defender's office or a particular deputy public defender as sender, this alone necessarily satisfied the “properly marked” requirement and, therefore, jail employees were prohibited from opening such mail outside Plaintiff's presence. Plaintiff urges the Court to find, as a matter of law, that mail listing an attorney, law firm, or law organization as sender on the envelope necessarily constitutes “properly marked” legal mail within the meaning of the Supreme Court and Ninth Circuits decisions noted above for First and Sixth Amendment purposes.
As discussed earlier, in his Objection to the Report, Plaintiff has attempted to proffer a new theory, namely, that contrary to his prior sworn allegations and arguments, the envelopes sent by the Office of the Public Defender also bore the designation “Legal Mail” on the outside, which makes the envelopes “properly marked.” As also noted earlier, a court need not accept as true on Rule 12(b)(6) review any allegations that contradict complaint exhibits or documents referred to in the complaint. See Sprewell, 266 F.3d at 988; see also Steckman, 143 F.3d at 129596. Apart from the fact that this belatedly-offered theory is contrary to Plaintiff's consistent assertions otherwise (including those under oath) and the record, proffering it at this juncture - after an adverse Report and Recommendation has issued - is improper. “[A]llowing parties to litigate fully their case before the Magistrate and, if unsuccessful, to change their strategy and present a different theory to the district court would frustrate the purpose of the Magistrate Act. We do not believe that the Magistrate Act was intended to give litigants an opportunity to run one version of their case past the magistrate, then another past the district court.” See Greenhow v. Secretary of Health & Human Services, 863 F.2d 633, 638-39 (9th Cir. 1988), overruled on other grounds by United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992) (en banc). The Court declines to entertain Plaintiff's effort to assert a new and inconsistent theory about what the mail in issue looked like that contradicts his prior sworn allegation in the pleading in issue and the attached evidence he has submitted.
Turning back to the legal issue presented by the Second Amended Complaint and the Motion, i.e., whether an envelope containing legal mail is “properly marked” if it is not marked as “legal mail” but contains an attorney's name and address, Plaintiff may be correct in his interpretation of how the Supreme Court or the Ninth Circuit would rule on this issue if called upon to do so, or he may not be.
The Ninth Circuit, however, so far has declined to resolve this question, and the Supreme Court has not done so. In Nye v. Tapia, supra, a Western District of Washington District Court: noted the open nature of this question; then looked at the prison's correctional policy manual provision regarding “legal mail” and found that its language encompassed, among other things, mail sent bearing only the marking “Attorney at Law”; and concluded that, in Washington, mail bearing such a marking fell within Hayes' scope and therefore was mail that must be opened in the prisoner's presence. 2022 U.S. Dist. LEXIS 167802, at *8. Apparently attempting to have his case fall within the scope of the Nye decision, Plaintiff has submitted a Declaration in opposition to the Motion that attaches as an exhibit one page from the jail's Inmate Orientation Manual, which defines “Legal Mail” as mail to or from specific classes of persons, including attorneys. [Dkt. 38 at 5.] This document, however, is not attached to the Second Amended Complaint and, thus, is outside the scope of Rule 12(b)(6) review. In addition, the Court notes that Plaintiff's proffer of this single page from the Manual is disingenuous, given his earlier submission in this case of a more complete portion of the relevant Manual pages, which make clear that “Legal Mail is to be marked ‘Legal Mail'” and “confidential mail must . . . have the words ‘Legal Mail' on the front of the envelope.” [Dkt. 15 at 48.] Thus, even if the Manual - whether the single page or a more full copy - properly could form a part of the Court's Rule 12(b)(6) review (which is cannot and does not), it would not support Plaintiff's “properly marked” argument.
In any event, the Court declines Plaintiff's invitation to resolve this issue left open by higher courts, because it need not do so given that there is another legal basis requiring dismissal. See, e.g., Gulf Oil Co. v. Bernard, 452 U.S. 89, 99 (1981) (“‘Prior to reaching any constitutional questions, federal courts must consider nonconstitutional grounds for decision,'” characterizing this statement as a “fundamental rule of judicial restraint”) (citations omitted); Bandimere v. Securities and Exchange Comm'n, 844 F.3d 1168, 1171 (10th Cir. 2016) (“Federal courts avoid unnecessary adjudication of constitutional issues.”); Pebble Ltd. P 'ship v. Env't Prot. Agency, No. MC 15-2-BU-BMM-JCL, 2015 WL 13829104, at *2 n.1 (D. Mont. Nov. 18, 2015) (“The established policy of the federal courts is to avoid the unnecessary adjudication of constitutional questions.”). Defendants have asserted that in light of the present legal uncertainty on the issue of what exactly constitutes “properly marked” legal mail, they are entitled to qualified immunity with respect to Plaintiff's First and Sixth Amendment-based Section 1983 claims alleged in the First and Second Causes of Action. The Court agrees for the following reasons.
A government official is entitled to qualified immunity from civil damages unless his conduct violates “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In considering a claim of qualified immunity, the court engages in a two-part inquiry: whether the facts “make out a violation of a constitutional right”; and “whether the right at issue was ‘clearly established' at the time of defendant's alleged misconduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009). Courts have discretion to address these two steps in any order. Id. at 236. At the motion to dismiss stage, the qualified immunity inquiry must be undertaken in light of the factual allegations of the complaint and the reasonable inferences drawn from these allegations. See Behrens v. Pelletier, 516 U.S. 299, 309 (1996) (“it is the defendant's conduct as alleged in the complaint that is scrutinized for ‘objective legal reasonableness.'”).
“‘To be clearly established, a right must be sufficiently clear that every reasonable official would have understood that what he is doing violates that right.'” Hamby v. Hammond, 821 F.3d 1085, 1090 (9th Cir. 2016) (citation omitted; emphasis in original); see also Reichle v. Howards, 566 U.S. 658, 664 (2012) (same); see also Harlow, 547 U.S. at 818 (“If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to ‘know' that the law forbade conduct not previously identified as unlawful.”). The right must be established not as a broad general proposition, but in a particularized sense so that its contours are clear to a reasonable official. Reichle, 566 U.S. at 665. In other words, the “right's contours” must be “sufficiently definite that any reasonable official in the defendant's shoes would have understood that he was violating it.” Plumhoff v. Rickard, 572 U.S. 765, 778-79 (2014). “Although a plaintiff need not find ‘a case directly on point, existing precedent must have placed the . . . constitutional question beyond debate.'” Hamby, 821 F.3d at 1091 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2001)). A “plaintiff must prove that ‘precedent on the books' at the time the officials acted ‘would have made clear to [them] that [their actions] violated the Constitution.'” Hamby, 821 F.3d at 1091 (quoting Taylor v. Barkes, 575 U.S. 822, 827 (2015).
Plaintiff has not identified any Supreme Court or Ninth Circuit decision holding officers liable for conduct similar to the alleged actions of the Defendants here. Instead, he relies on two District Court decisions from the District of Oregon to support his contention that qualified immunity is inapplicable here: Evans v. Gower, No. 2:17-cv-01162, 2022 WL 3226968 (D. Ore. Aug. 10, 2022); and Salmon v. Peters, No. 2:20-cv-1917-AR, 2022 WL 18584339 (D. Ore. Dec. 15, 2022) (erroneously cited by Plaintiff as a Ninth Circuit decision). Neither decision, however, precludes applying the qualified immunity doctrine in this case.
In Evans, jail officials were alleged to have opened mail sent to the plaintiff in prison from three sets of attorneys that came in envelopes marked with the words “Legal Mail” or “Legal Correspondence” in some instances, and in others, allegedly with the words “Attorney-Client Communication.” 2022 WL 3226968, at *2-*3. The District Court found that as to the mail actually marked “Legal Mail” or “Legal Correspondence” or (as alleged by Plaintiff) “Attorney-Client Communication,” a genuine issue of material fact existed that precluded granting summary judgment for either party. Id. at *8 (“A reasonable jury could conclude that letters marked with words and phrases such as ‘legal' and ‘attorney-client' were sufficient to put Defendants on notice that Plaintiff's mail was, in fact, properly marked legal mail that complied with applicable regulations.”). The District Court further found that the defendants were not entitled to qualified immunity as to these so marked letters because, under Hayes, every reasonable official would have understood that opening mail marked with such terms was improper. Id., at *9. Evans is distinguishable from Plaintiff's situation, given that under the verified allegations of the SAC, the envelopes in issue here not marked with terms such as “Legal Mail” or “Legal Correspondence” or “Attorney-Client Communication.” Evans, thus, does not foreclose application of the qualified immunity doctrine in this case.
The District Court applied the qualified immunity doctrine to the mail sent before Hayes issued even though it actually was marked as “Legal Correspondence” and “Attorney-Client Communication,” reasoning that the First Amendment right found in Hayes was not clearly established prior to then. 2022 WL 3226968, at *9.
In Salmon, there was no dispute that the mail in issue was clearly marked as “legal mail,” nor was there any dispute that it had been opened in the plaintiff's presence. 2022 WL 18584339, at *6. The claim instead was based on the officer's brief inspection of the letter's contents to verify that the plaintiff was the addressee pursuant to prison regulations and whether or not this prison policy was inconsistent with the Ninth Circuit's First and Sixth Amendment decision noted above. The District Court denied defendants summary judgment, finding that the factors involved in a Turner v. Safley, 482 U.S. 78, 89 (1987) analysis of a prison policy or regulation were not satisfied. Id., at *8-*9. The District Court also denied the defendants' assertion that they were entitled to qualified immunity, finding that they had mischaracterized the nature of the plaintiff's claim in framing their qualified immunity argument and had failed to cite any authority that actually was relevant to the qualified immunity issue in light of the actual nature of his claim. Id., at *11. Salmon, in short, is factually and legally inapposite to the issues involved in this case.
Plaintiff frames the qualified immunity issue involved here too generally, couching it as a situation in which any correctional official should have understood that opening an inmate's mail sent from a lawyer outside his presence violated his First and Sixth Amendment rights. He posits that the fact that mail was sent by an attorney, on its own, is enough to accord it First and Sixth Amendment protection from opening outside the presence of the inmate addressee. But as explained above, the Supreme Court has cautioned that the right in question must be established in a particularized sense rather than broadly, with contours sufficiently definite that that any reasonable official would have understood that he was violating it, because existing precedent had placed the constitutional question beyond debate. Both the Supreme Court and the Ninth Circuit have stated that only “properly marked” legal mail is subject to the First and Sixth Amendment protections discussed in decisions such as Wolff, Hayes, and Mangiaracina, but neither the Supreme Court nor the Ninth Circuit has explained clearly what “properly marked” means. Indeed, the Ninth Circuit repeatedly has declined to do so. Given the open nature of this question, the Court cannot say that every reasonable official in Defendants' shoes would have clearly understood that opening mail not bearing a mark such as “Legal Mail” or “Attorney-Client Communication,” although listing an attorney as sender, outside the inmate addressee's presence violated the First and/or Sixth Amendments. While the Supreme Court or the Ninth Circuit may so find eventually, the law in this respect was not so clearly established at the time of Defendants' conduct alleged in the Second Amended Complaint. Put otherwise, this was not a legal question “beyond debate” under existing precedent and, hence, was not an issue so clearly established as to preclude finding qualified immunity applicable. Al-Kidd, 563 U.S. at 741.
In the previously-discussed Western District of Washington decision of Nye, the District Court found that opening the prisoner's mail bearing only the marking “Attorney at Law” was contrary to state correctional policy and that the mail fell within Hayes' scope and was mail that must be opened in the prisoner's presence. 2022 U.S. Dist. LEXIS 167802, at *8. Nonetheless, the District Court concluded that the defendants were entitled to qualified immunity, because that right was not “clearly established” given the Supreme Court's and Ninth Circuit's failure to explicitly state - to date - whether mail clearly sent from a lawyer to an inmate but lacking the designation of “Legal Mail” may be opened outside the inmate's presence. Id., at *8-*9 (holding that, as a result, “Defendants are entitled to dismissal of this claim to the extent that it is based on the [First and Sixth Amendment] right to have properly marked legal mail opened in the presence of the prisoner”).
Nye is not controlling precedent here, but the Court agrees with its conclusion regarding qualified immunity. For the reasons outlined above, the Court concludes that at the time in issue, it was not so clearly established under existing precedent that opening mail outside a prisoner's presence that lacked a designation such as “Legal Mail” or similar words and bore only an attorney's name or address as sender violated the First and/or Sixth Amendment that any reasonable correctional official necessarily would have known that doing so was a constitutional violation. As a result, Defendants are entitled to qualified immunity with respect to the First and Second Causes of Action, and the claims should be dismissed without leave to amend and with prejudice.
RECOMMENDATION
For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting this Final Report and Recommendation; (2) denying Plaintiff's Request for Judicial Notice; (3) granting the Motion and dismissing the Second Amended Complaint without leave to amend; and (4) dismissing this action with prejudice.
NOTICE
Reports and Recommendations are not appealable to the United States Court of Appeals for the Ninth Circuit, but may be subject to the right of any party to file objections as provided in the Local Civil Rules for the United States District Court for the Central District of California and review by the United States District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until the District Court enters judgment.