Opinion
Case No. CV 09-8850-JFW (MLG)
10-13-2011
HANNON RILEY, Plaintiff, v. A.W. DUNN, et al., Defendants.
I HEREBY CERTIFY THAT THIS DOCUMENT WAS SERVED BY
FIRST CLASS MAIL, POSTAGE PREPAID, TO ALL COUNSEL
(OR PARTIES) AT THEIR RESPECTIVE MOST RECENT ADDRESS OF
RECORD IN THIS ACTION ON THIS DATE.
_______________
DEPUTY CLERK
ORDER DISMISSING SECOND AMENDED
COMPLAINT WITH LEAVE TO AMEND
I. Facts and Procedural History
On August 6, 2010, Plaintiff Shannon Riley filed this second amended pro se civil rights complaint pursuant to 42 U.S.C. § 1983. The defendants, A.W. Dunn, R. Furster and R. Poodry, are all correctional officers employed at the California Men's Colony ("CMC") in San Luis Obispo, California, where Plaintiff was incarcerated at the time of the events giving rise to the cause of action.
The facts alleged in the complaint are as follows: Plaintiff claims that in April 2006, Defendant Poodry conducted several harassing searches of Plaintiff and confiscated Plaintiff's cell keys. (Compl. ¶¶ 20-28.) On June 17, 2006, Plaintiff was involved in a fight with inmate Rasberry, as a result of which both inmates were placed in administrative segregation. When they were released, Rasberry informed Plaintiff that Poodry had tried to convince him to claim that Plaintiff assaulted him. (Compl. ¶¶ 28-29.)
The facts discussed in this section are taken from Plaintiff's second amended complaint.
On December 2, 2006, Plaintiff was assaulted by inmate Foletti, after which he and Foletti were escorted to the program office, where "it was determined" that Foletti assaulted Plaintiff. Defendant Poodry "made every effort" to have Plaintiff placed in administrative segregation but the unit sergeant did not do so. Plaintiff attempted several times to submit administrative grievances against Poodry but they were not processed by the prison appeals system. (Compl. ¶¶ 50-62.)
On December 14, 2006, prison staff received an anonymous report from another inmate, identifying Plaintiff as the individual who had assaulted Foletti with a blunt instrument. Plaintiff was placed in the segregated housing unit based upon this confidential report. On December 26, 2006, Plaintiff received a rules violation report, in which Poodry charged Plaintiff with the offense of "battery on an inmate with a weapon." On the same day, Plaintiff received notice that confidential information had been placed in his file. (Compl. ¶¶ 46-49.) Plaintiff claims he made multiple attempts to file an administrative grievance against Poodry for filing a false document and for soliciting false and unreliable confidential information, but his grievances were not processed. (Compl. ¶¶ 50-62.)
The disciplinary hearing on the charge of battery on an inmate with a weapon was held on February 11, 2007, before Defendant Dunn. Dunn considered five confidential reports that had been submitted for review. Plaintiff argued that the confidential information was not reliable, that no other individuals had identified him as the assailant, and that he was physically unable, because of a medical condition, to strike Foletti with a blunt object. Dunn rejected Plaintiff's request to call certain unidentified witnesses. Following the hearing, Dunn determined that Plaintiff was guilty of assaulting Foletti with a weapon. Plaintiff was assessed a 360-day loss of credit, loss of other privileges, and confinement in the segregated housing unit ("SHU") for a term of fifteen months. (Compl. ¶¶ 63-76.)
Plaintiff appealed the finding and was re-interviewed by Defendant Furster as part of the initial appeal. Furster allegedly did not review any of the evidence that Plaintiff presented in his defense. Furster rejected Plaintiff's arguments, and the appeal was denied in full. A director's level appeal resulted in partial relief. Because the hearing had not been conducted timely, the credit loss sanction was vacated. (Compl. 78-88.)
Plaintiff contends that conditions in the SHU created an atypical and significant hardship upon him. He claims that while in the SHU, he began to have suicidal thoughts and required additional psychological treatment. He also contends that he had concerns for his safety because of the violent nature of some inmates. Plaintiff alleges that he was denied outdoor time and exercise for a period of three to four months and had difficulty obtaining proper medical care. He also claims that he had to sleep on the floor where he was exposed to rodents because he was unable to climb to his assigned top bunk, although he was eventually given a lower bunk. (Compl. ¶¶ 95-106.)
Plaintiff also alleges that, because he was placed in a higher custody facility, his movement and access to programs, work opportunities, and the law library was restricted. He also claims that the higher level of custody and the inmate battery charge will negatively affect his chance for parole in the future. (Compl. ¶¶ 109-129.) Plaintiff seeks compensatory and punitive damages as well as expungement of his prison record.
Plaintiff asserts the following claims for relief:
1. Defendant Poodry violated Plaintiff's First Amendment rights by retaliating against him for filing prison grievances.
2. Defendant Dunn violated Plaintiff's Fourteenth Amendment due process rights by denying Plaintiff the witnesses he requested and by disregarding Plaintiff's challenge to the evidence at the hearing on the rules violation.
3. Defendant Furster violated Plaintiff's Fourteenth Amendment due process rights by affirming the finding of misconduct.
4. Plaintiff's Fourteenth Amendment due process rights were violated because the prison appeals system failed to process his appeals against Defendant Poodry.
5. Plaintiff's Fourteenth Amendment due process rights were violated because the conditions in the SHU created an atypical hardship in relation to inmates in the general prison population.
6. The conditions in the SHU violated Plaintiff's Eighth Amendment rights.
7. The conditions in the SHU violated Plaintiff's Fourteenth Amendment equal protection rights.
On June 24, 2011, Defendants filed a motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). On July 25, 2011, Plaintiff filed an opposition to the motion to dismiss. The matter is now ready for decision.
II. Standard of Review
Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of a complaint for "failure to state a claim upon which relief may be granted." To survive a motion to dismiss for failure to state a claim, a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556) . The plausibility standard is not akin to a "probability requirement," but it requires more than a sheer possibility that a defendant has acted unlawfully. Id. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of entitlement to relief." Twombly, 550 U.S. at 557.
The Court in Twombly explained that a complaint is read in conjunction with Federal Rule of Civil Procedure 8(a) (2) which requires a "showing" that the plaintiff is entitled to relief, "rather than a blanket assertion" of entitlement to relief. Id. at 556 n.3. While Rule 8 does not require "detailed factual allegations," it nevertheless "demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Iqbal, 129 S.Ct. at 1949. A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. Thus, "allegations in a complaint or counterclaim must be sufficiently detailed to give fair notice to the opposing party of the nature of the claim so that the party may effectively defend against it. [Also], the allegations must be sufficiently plausible that it is not unfair to require the opposing party to be subjected to the expense of discovery." Starr v. Baca, 633 F.3d 1191, 1204 (9th Cir. 2011) .
In considering Defendants' motion to dismiss, the Court must accept all factual allegations of the complaint as true and construe those facts, as well as the inferences from those facts, in the light most favorable to Plaintiff. See Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005) . Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (citations omitted). However, the liberal construction doctrine "applies only to a plaintiff's factual allegations." Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). The Court need not accept as true unreasonable inferences or conclusory legal allegations cast in the form of factual allegations. See Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003) (citing Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)).
III. Discussion
Defendants raise various arguments in support of the motion to dismiss, including: (1) Defendants are entitled to Eleventh Amendment immunity to the extent Plaintiff seeks money damages against Defendants in their official capacity; (2) Plaintiff failed to exhaust his administrative remedies as to all but one of his claims before filing suit; (3) Plaintiff fails to state a Fourteenth Amendment due process claim against Defendants Dunn and Furster; (4) Plaintiff fails to state a Fourteenth Amendment due process claim against any of the Defendants based upon conditions in the SHU; (5) Plaintiff fails to state a Fourteenth Amendment due process claim against any of the Defendants based upon the failure to process his prison grievances; (6) Plaintiff fails to state an Eighth Amendment claim against any of the Defendants; (7) Plaintiff fails to state a Fourteenth Amendment equal protection claim; and (8) Defendants are protected from liability for monetary damages in their individual capacities by qualified immunity. (Mot. to Dismiss at 4.) Because the complaint fails to state a viable claim against any of these Defendants, the complaint will be dismissed with leave to amend. Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) (pro se litigant should be given an opportunity to amend deficient pleadings unless it is clear that these deficiencies cannot be overcome).
A. Eleventh Amendment Immunity
Defendants contend that because Plaintiff seeks money damages for Defendants' actions undertaken in their official capacities, the Eleventh Amendment provides absolute immunity and bars recovery. (Mot. to Dismiss at 4.) The Eleventh Amendment states:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.U.S. Const, amend. XI. Despite the absence of a textual reference to suits by individuals against their own states in federal court, the Supreme Court has long interpreted the Eleventh Amendment to bar such actions. Hans v. Louisiana, 134 U.S. 1, 15 (1890). Absent a waiver of Eleventh Amendment immunity, a state may not be sued in federal court. College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999); see also Quillin v. Oregon, 127 F.3d 1135, 1138 (9th Cir. 1997) (per curiam) . This immunity extends to suits against state officers acting in their official capacities, because such suits target not the official, but rather the official's office. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989); see Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 (1984).
There is no indication that California or its officers have waived immunity, nor did Congress waive the state's immunity pursuant to its remedial enforcement powers under the Fourteenth Amendment. Accordingly, Defendants' motion to dismiss Plaintiff's claims for money damages against all Defendants in their official capacities should be granted.
B. Exhaustion
Defendants argue that Plaintiff failed to exhaust his administrative remedies before filing suit, except with respect to his due process claim against Defendant Dunn, requiring dismissal of this action under 42 U.S.C. § 1997e(a). (Mot. to Dismiss at 5.) That statute states, in relevant part:
No action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.Under this provision, all state and federal prisoners are required to exhaust available prison administrative remedies before seeking relief in federal court. Booth v. Churner, 532 U.S. 731, 741 n.6 (2001); Marella v. Terhune, 562 F.3d 983, 985 (9th Cir. 2009) (per curiam) . The exhaustion requirement is mandatory, and may not be excused by a court in the interests of justice. Woodford v. Ngo, 548 U.S. 81, 85 (2006) (citations omitted); Booth, 532 U.S. at 740 n.5; Bovarie v. Giurbino, 421 F. Supp. 2d 1309, 1312 (S.D. Cal. 2006). It is the defendant's burden to plead and prove a plaintiff's failure to exhaust. Jones v. Bock, 549 U.S. 199, 216 (2007); see also Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003).
Plaintiff contends that he attempted numerous times to exhaust his administrative remedies but that these efforts were futile because various CMC employees removed his administrative complaints from the prison mail system and discarded them. (PL's Opp. at 2-3.) Plaintiff attaches detailed notes he claims that he took to document the efforts he made to exhaust his administrative remedies. (Id. at 3-5.)
Because there is a factual dispute as to whether Plaintiff's attempts to exhaust his administrative remedies were thwarted by prison officials, the Court cannot grant Defendants' motion to dismiss the alleged unexhausted claims. Accordingly, Defendants' motion to dismiss Plaintiff's claims based upon failure to exhaust is denied without prejudice to refiling after further development of the record.
C. Fourteenth Amendment Claim Against Defendant Dunn
Plaintiff alleges that Defendant Dunn, who conducted the hearing on Plaintiff's rules violation charge, violated his due process rights by failing to allow Plaintiff to call the witnesses he requested for the hearing. Defendants contend that Plaintiff's Fourteenth Amendment due process claims against Dunn should be dismissed because Plaintiff was only punished with administrative segregation and he has no protected liberty interest in remaining in the general prison population.
Under the Fourteenth Amendment's Due Process Clause, a prisoner is entitled to certain due process protections when he is charged with a disciplinary violation, including the rights to call witnesses, to present documentary evidence and to have a written statement by the fact-finder as to the evidence relied upon and the reasons for the disciplinary action taken. Wolff v. McDonnell, 418 U.S. 539, 564-571, (1974). These procedural protections, however, "adhere only when the disciplinary action implicates a protected liberty interest in some 'unexpected matter' or imposes an 'atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.'" Serrano, 345 F.3d at 1078 (citing Sandin v. Connor, 515 U.S. 472, 484 (1995); see also Ramirez v. Galaza, 334 F.3d 850, 860 (2003) ("If the hardship is sufficiently significant, then the court must determine whether the procedures used to deprive that liberty satisfied Due Process.") (citations omitted); Serrano v. Francis, 345 F.3d 1071, 1078 (9th Cir. 2003).
Because the loss of good time credits was vacated, there is no liberty interest implicated in the punishment imposed for the misconduct finding. However, Plaintiff claims that he has suffered an atypical and significant hardship by his placement in two segregated housing units. In determining whether a prison hardship is atypical and significant, the Ninth Circuit looks at the following factors: "(1) whether the challenged condition 'mirrored those conditions imposed upon inmates in administrative segregation and protective custody,' and thus comported with the prison's discretionary authority; (2) the duration of the condition, and the degree of restraint imposed; and (3) whether the state's action will invariably affect the duration of the prisoner's sentence. Serrano, 345 F.3d at 1078 (citing Sandin, 515 U.S. at 486-487; Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996).
Typically, administrative segregation in and of itself does not implicate a protected liberty interest. See, e.g., Sandin, 515 U.S. at 486 ("[Disciplinary segregation, with insignificant exceptions, mirror[s] those conditions imposed upon inmates in administrative segregation and protective custody."); Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir.2000) (holding that the pre-sentencing prisoner had no liberty interest in being free from administrative segregation); May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997).
Courts have found the existence of atypical and significant hardships in a very limited scope of cases. See, e.g., Wilkinson v. Austin, 545 U.S. 209, 221-24 (2005) (holding inmates' liberty interests were implicated by their indefinite confinement in highly restrictive "supermax" prison, where the inmates were deprived of almost all human contact and were disqualified from parole consideration); Serrano, 345 F.3d at 1078-79 (placing disabled inmate, without his wheelchair, in segregation unit not equipped for disabled persons gave rise to a liberty interest); Ramirez, 334 F.3d at 861 (directing district court to consider two-year duration of administrative segregation in determining whether placement imposed atypical and significant burden). "A liberty interest does not arise even when administrative segregation imposes severe hardships, such as denial of access to vocational, educational, recreational, and rehabilitative programs, restrictions on exercise, and confinement to a cell for lengthy periods of time." Toussaint v. McCarthy, 801 F.2d 1080, 1092 (9th Cir. 1986) (internal quotations omitted).
Here, Plaintiff has alleged that his confinement in administrative segregation imposed a significant and atypical hardship in that he was denied exercise for four months, and was forced to sleep on the floor in segregated housing with rodents due to his medical condition, which prevented him from accessing an upper bunk. In the context of a motion to dismiss, it cannot be said that Plaintiff has failed to allege that these deprivations imposed a significant and atypical hardship in relation to the ordinary incidents of prison life. Because a question exists as to whether any of these facts are true and further, whether they demonstrate conditions so significant and atypical as to implicate the due process clause, the motion to dismiss this claim is denied without prejudice. See Young v. Smalls, 2010 WL 1526370 *2 (S.D. Cal. 2010) (for screening purposes a prisoner demonstrated a cognizable liberty interest when he alleged that he was denied outdoor exercise for nine month); see also Tatum v. Rosario, 2005 WL 2114190 *4 (E.D. Cal. 2005)(total denial of all visitors and suspension of outdoor exercise for two months sufficient to state claim upon which relief may be granted).
While he notes other general hardships he suffered as a result of his confinement in SHU, these other types of burdens do not give rise to a protected liberty interest.
D. Fourteenth Amendment Claim Against Defendant Furster
Plaintiff alleges that Defendant Furster violated his due process rights by affirming Dunn's guilty finding on appeal. Furster contends that Plaintiff's claim should be dismissed because he cannot be held liable based solely upon his participation in the administrative grievance procedure.
As an initial matter, the Court notes that Plaintiff has no constitutional right to an effective grievance or appeal procedure. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding that a prisoner has no constitutional right to an effective grievance or appeal procedure); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); see also George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007) (holding that only persons who cause or participate in civil rights violations can be held responsible and that "[r]uling against a prisoner on an administrative complaint does not cause or contribute to the violation"); Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (holding that prison officials whose only roles involved the denial of the prisoner's administrative grievances cannot be held liable under § 1983); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) ("[A prison] grievance procedure is a procedural right only, it does not confer any substantive right upon the inmates.").
A prison official's denial of an inmate's grievance or appeal from a misconduct finding generally does not constitute significant participation in an alleged constitutional violation sufficient to give rise to personal liability. See Wilson v. Woodford, 2009 WL 839921, *6 (E.D. Cal. 2009)(ruling against a prisoner on an administrative complaint does not cause or contribute to the violation.); Foreman v. Goord, No. 02 Civ. 7089 (SAS) , 2004 WL 1886928 (S.D.N.Y. 2004)(holding prison superintendent's affirmation of the plaintiff's grievance denial insufficient to establish personal involvement necessary for section 1983 liability); Piggie v. Parke, No. 3:96-CV-458RP, 1997 WL 284796, *3 (N.D. Ind. 1997)("The mere act of denying a grievance following a transitory incident, however, does not provide a basis for liability under § 1983. Prisoners have no constitutional right to a grievance procedure...")(citation omitted).
Here, to the extent that Plaintiff is raising a due process claim against Defendant Furster based solely upon his participation in Plaintiff's administrative appeal process, such allegation fails to state a federal civil rights claim. Accordingly, the motion to dismiss the Fourteenth Amendment due process claims against Furster should be granted.
E. Fourteenth Amendment Due Process Claim Based Upon Alleged Failure to Process Plaintiff's Prison Grievances
Plaintiff alleges that his due process rights were violated because his prison grievances were not processed. Defendants contend that this claim should be dismissed because Plaintiff has failed to allege that any named Defendant was responsible for or caused the alleged failure to process Plaintiff's prison grievances. (Mot. to Dismiss at 12.)
As discussed above, Plaintiff has no right to an effective grievance procedure. Moreover, in order to establish liability under 42 U.S.C. § 1983, Plaintiff must prove that a person acting under color of state law deprived him of rights, privileges, or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981). A person deprives another "of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which [the plaintiff complains]." Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (emphasis in original) . "The inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation." Id. (citing Rizzo v. Goode, 423 U.S. 362, 370-71, 375-77 (1976)).
Here, Plaintiff has failed to allege that any of the named Defendants "[did] an affirmative act, participate[d] in another's affirmative acts, or omit[ted] to perform an act which [they were] legally required to do that cause[d]" the alleged failure to process his prison grievances. Accordingly, Defendants' motion to dismiss this claim should be granted.
F. Eighth Amendment Claim Based Upon Conditions in the SHU
Plaintiff alleges that Defendants violated his Eighth Amendment right to be free from cruel and unusual punishment by placing him in the SHU where he was exposed to certain inhumane conditions.
The Eighth Amendment prohibits the imposition of cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 102 (1976) . As a general matter, prison conditions do not violate the Eighth Amendment unless they amount to "unquestioned and serious deprivations of basic human needs" or the "minimal civilized measure of life's necessities." Rhodes v. Chapman, 452 U.S. 337, 347 (1981). "After incarceration, only the unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the Eight Amendment. To be cruel and unusual punishment, conduct that does not purport to be punishment at all must involve more than ordinary lack of due care for the prisoners' interest or safety." Whitely v. Albers, 475 U.S. 312, 319 (1986) (internal quotations and citations omitted).
A prisoner claiming an Eighth Amendment violation must show: (1) the deprivation he suffered was "objectively, sufficiently serious;" and (2) prison officials were deliberately indifferent to his safety in allowing the deprivation to take place. Farmer v. Brennan, 511 U.S. 825, 834 (1994) . Additionally, in order to show causation between the deliberate indifference and the Eighth Amendment deprivation, a prisoner must demonstrate the individual defendant was in a position to take steps to avert the harm, but failed to do so intentionally or with deliberate indifference. Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) . This inquiry requires "a very individualized approach which accounts for the duties, discretion, and means of each defendant." Id. at 633-34. Thus, a prison official may be liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that an inmate faces a substantial risk of harm and disregards that risk by failing to take reasonable measures to abate it. Farmer, 511 U.S. at 837-45.
Plaintiff asserts that his assignment to the SHU alone constituted cruel and unusual punishment. More specifically, Plaintiff claims that by placing him in SHU, Defendants denied Plaintiff privileges afforded to inmates housed in the general population, such as outdoor time and exercise, access to work programs and the law library, and the ability to earn good time credits and other similar privileges. However, the simple placement and retention of a prisoner in segregated housing, even for an indeterminate period of time, does not in and of itself implicate the Eighth Amendment. Toussaint v. Yockey, 722 F.2d 1490, 1494 n. 6 (9th Cir. 1984).
Plaintiff also alleges that he suffered various psychological effects as a result of being placed in the SHU, such as suicidal thoughts and the necessity of additional psychological treatment. However, a plaintiff cannot prevail on an Eighth Amendment claim "simply by pointing to the generalized 'psychological pain,' - i.e., the loneliness, frustration, depression or extreme boredom - that inmates may experience by virtue of their confinement in the SHU." Madrid v. Gomez, 889 F.Supp. 1146, 1264 (N.D.Cal. 1995) (citing Toussaint v. McCarthy, 801 F.2d 1080, 1107-08 (9th Cir. 1986)). "The Eighth Amendment simply does not guarantee that inmates will not suffer some psychological effects from incarceration or segregation." Id. (citing Jackson v. Meacham, 699 F.2d 578, 583 (1st Cir. 1983)).
However, to the extent that Plaintiff claims that his Eighth Amendment rights were violated by the denial of exercise for four months and his inability to use the upper bunk bed due to his medical condition while in segregation, he has met the minimal requirement of stating a claim upon which relief may be granted. But, Plaintiff has failed to demonstrate how the Defendants named in this action were responsible for the deprivations alleged. Accordingly, this claim must be dismissed as to the named defendants.
6. Fourteenth Amendment Equal Protection Claim
Plaintiff alleges that the conditions in the SHU violated his Fourteenth Amendment right to equal protection. Defendants allege that Plaintiff has failed to allege facts to establish an equal protection violation by any Defendant. (Mot. to Dismiss at 13.)
The Equal Protection Clause of the Fourteenth Amendment commands that no State shall 'deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). In order to state an equal protection claim based on the allegedly selective enforcement of a law, plaintiff must "show that the law is applied in a discriminatory manner or imposes different burdens on different classes of people." Freeman v. City of Santa Ana, 68 F.3d 1180, 1187 (9th Cir. 1995). To do so, plaintiff must "identify a 'similarly situated' class against which plaintiff's class can be compared." Id. Then, if the alleged selective enforcement "does not implicate a fundamental right or a suspect classification, the plaintiff can establish a 'class of one' equal protection claim by demonstrating that [he] 'has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.' " Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936, 944 (9th Cir. 2004) (quoting Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (recognizing an equal protection violation where ordinance targeted a single individual on basis that state action was arbitrary and irrational)).
Further, in order to state an equal protection claim based on intentionally discriminatory treatment, plaintiff must allege that a particular defendant treated him differently than other prisoners with an intent or purpose to discriminate against him based on membership in a protected class, such as race or ethnicity. See Washington v. Davis, 426 U.S. 229, 239-42 (1976) . Plaintiff "must show that the defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class." Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001) (quoting Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.1998)); see also City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 194 (2003) ("proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause").
Here, Plaintiff has failed to allege any facts to show that he was either placed in the SHU or suffered any of the conditions in the SHU because of his membership in an identifiable group. He has also failed to allege any facts to demonstrate that he was treated differently in the SHU than other inmates were treated. Nor has he alleged any facts to show that Defendants acted with a discriminatory intent or purpose in placing him in the SHU. Accordingly, Defendants' motion to dismiss Plaintiff's equal protection claims should be granted.
H. Qualified Immunity
Defendants contend that Plaintiff's complaint should be dismissed because they are entitled to qualified immunity. (Mot. to Dismiss at 14.) The doctrine of qualified immunity "protects government officials from 'liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Tibbetts v. Kulongoski, 2009 WL 1492156, at *5 (9th Cir. May 29, 2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The U.S. Supreme Court in Saucier v. Katz, 533 U.S. 194 (2001), established a two-prong approach for determining whether qualified immunity applies in a given situation. These include: (1) Taken in a light most favorable to the plaintiff, do the facts alleged show a constitutional violation?; and (2) Was the allegedly violated constitutional right clearly established in light of the specific context of the case? Saucier, 533 U.S. at 201. The dispositive inquiry in considering the second prong is whether it would be clear to a reasonable official that the conduct was unlawful in the specific situation presented. Saucier, 533 U.S. at 202 (citations omitted). The qualified immunity standard "gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law." Hunter v. Bryant, 502 U.S. 224, 227 (1991).
The Court in Saucier established these considerations as a strict two-step process through which lower courts should move sequentially. 533 U.S. at 200-01. In Pearson v. Callahan, 129 S. Ct. 808, 818 (2009), however, the Court held that lower courts have discretion to decide which of the two prongs to consider first.
Here, the right to be free from retaliation for the filing of grievances, as well the due process rights guaranteed by Wolff and Sandin, were clearly established in 2006. It cannot be said on the record before the Court that Defendants Poodry or Dunn are protected by qualified immunity.
IV. Conclusion
IT IS THEREFORE ORDERED as follows:
1. The second amended complaint is dismissed without prejudice for the reasons stated above.
2. Plaintiff has until November 8, 2011, to file a third amended complaint, that remedies the defects identified in this memorandum and order and complies with the requirements of the Federal Rules of Civil Procedure and Local Rule 15-2. Any amended complaint must bear the docket number assigned in this case and must be labeled second amended complaint." Plaintiff is advised that an amended complaint is a document stating one or more causes of action against one or more defendants. Local Rule 15-2. Pursuant to Fed.R.Civ.P. 8, Plaintiff should make a short and plain statement of the facts underlying his claims, the specific defendant to whom the facts apply; and the nature of the relief he seeks. The third amended complaint must be plainly written and legible.
"Every amended pleading filed as a matter of right or allowed by order of Court shall be complete including exhibits. The amended pleading shall not refer to the prior, superseded pleading." Local Rule 15-2.
3. If Plaintiff fails to timely file the amended complaint, or if the amended complaint fails to properly plead a cause of action against any defendant, the complaint will be dismissed with prejudice or as to that defendant.
4. The Court's deputy clerk shall serve on Plaintiff a copy of this memorandum and order and a blank civil rights complaint form bearing the case number assigned to this action and marked to show that it is a "Third Amended Complaint." If Plaintiff chooses to continue prosecuting this action, he must use this form to the extent possible.
Marc L. Goldman
United States Magistrate Judge