Walker v. California Dep't of Corr.

Full title: K. JAMEL WALKER, Plaintiff, v. CALIFORNIA DEPARTMENT OF CORRECTIONS, et…

Court: UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Date published: Feb 21, 2012

No. 2:09-cv-0569 WBS KJN P (E.D. Cal. Feb. 21, 2012)

Opinion

No. 2:09-cv-0569 WBS KJN P

02-21-2012

K. JAMEL WALKER, Plaintiff, v. CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., Defendants.

KENDALL J. NEWMAN

FINDINGS AND RECOMMENDATIONS

Plaintiff, a state prisoner incarcerated at Mule Creek State Prison, under the authority of the California Department of Corrections and Rehabilitation ("CDCR"), proceeds without counsel in this civil rights action. Plaintiff filed this action in the Sacramento County Superior Court, on September 20, 2007. Defendants removed the case to this court on February 27, 2009. (Dkt. No. 2.) Although several procedural problems beset the removal, the court denied plaintiff's motion to remand because it was untimely filed. (See Dkt. Nos. 12, 16.) The court thereafter dismissed several defendants, based on the finding that plaintiff's complaint fails to state any potentially cognizable claims against them. (See Dkt. Nos. 17, 19.) The action now proceeds against defendants Rush, Anaya, Price, Chavarria, Ryan, Bourland, and Nunez. Pending is defendants' motion to dismiss. (Dkt. No. 22.) Plaintiff filed an opposition (Dkt. No. 30); defendants filed a reply (Dkt. No. 33). For the following reasons, this court recommends that defendants' motion be granted in part and denied in part, and that plaintiff be granted leave to file an amended complaint.

I. Background

Plaintiff's complaint (Dkt. No. 2 at 5-33)¹ ("complaint") is densely worded, both factually and legally, and somewhat difficult to construe. Plaintiff's claims are premised on his allegations that defendants, acting individually and in concert, denied plaintiff his right to have confidential telephone calls with his attorney. Plaintiff further contends that defendants acted in retaliation for plaintiff's pursuit of a separate civil rights action (Walker v. Gomez et al., Case No. 03:96-cv-0609 PCL);² and then in retaliation for plaintiff filing an administrative grievance challenging defendants' actions. As this court noted on initial screening, the complaint alleges a broad "first cause of action" that "combines plaintiff's claims that his rights to privacy, due process, and to petition the government for redress of grievances, were violated under the First, Fourth, and Fourteenth Amendments to the United States Constitution, and Article I of the California Constitution," and alleges five additional "causes of action" that "assert an amalgam of alleged violations of state statutory and constitutional law." (Dkt. No. 17 at 5-6.)³ Plaintiff seeks statutory, compensatory and punitive damages, as well as declaratory and injunctive relief.

1 Unless otherwise noted, references to pages contained in filed documents reflect the court's electronic pagination ("CM/ECF"), which may not coincide with the internal pagination of the document.

2 Defendants' request for judicial notice of the docket in Walker v. Gomez, et al., Case No. 03:96-cv-0609 PCL, is granted. (See Dkt. No. 23.) See Fed. R. Evid. 201 (a court may take judicial notice of facts that are capable of accurate determination by sources whose accuracy cannot reasonably be questioned); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (court may take judicial notice of court records).

3 In pertinent part, plaintiff entitled his causes of action as follows (Cmplt. at 53-93):

First Cause of Action: "Action for Damages, 42 U.S.C. § 1983"
Second Cause of Action: "State Claim for Intentional Tort, re. Cal. Penal Code § 636(b) and § 637.2"
Third Cause of Action: "State Tort Claim of Intentional Violation of Privacy, re. Cal. Civil Code § 52.1(b)"
Fourth Cause of Action: "State Law Retaliation Claims re. Art. I, §§ 2a, 3, 7a, Art. 8, [15 Cal. Code Reg.] § 3084.1"
Fifth Cause of Action: "Claim for Injunctive Relief, re. Cal. Penal Code § 637.2(b) & Cal. Code Civil Procedure § 525"
Sixth Cause of Action: "Claim for Declaratory Relief, re. Cal. Code Civil Procedure § 1060 & Title 28 U.S.C. § 2201"

The court addresses the merits of defendants' motion to dismiss in the following sequence: the court first identifies the allegations and claims that plaintiff administratively exhausted; then, the court determines whether state law claims are precluded under the requirements of the California Tort Claims Act; the court then reviews plaintiff's claims for injunctive and declaratory relief; thereafter, the court considers whether the remaining matters state potentially cognizable claims for relief.

II. Exhaustion of Administrative Remedies

A. Legal Standards

The Prison Litigation Reform Act ("PLRA") provides that, "[n]o 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." 42 U.S.C. § 1997e(a). Pursuant to this rule, prisoners must exhaust their administrative remedies regardless of the relief they seek, i.e., whether injunctive relief or money damages, even though the latter is unavailable pursuant to the administrative grievance process. Booth v. Churner, 532 U.S. 731, 741 (2001). Exhaustion also requires that the prisoner complete the administrative review process in accordance with all applicable procedural rules. Woodford v. Ngo, 548 U.S. 81 (2006).

The PLRA requires that administrative remedies be exhausted prior to filing suit. McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002). However, the exhaustion requirement is not jurisdictional, but an affirmative defense that may be raised by a defendant in a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b). See Jones v. Bock, 549 U.S. 199, 216 (2007) ("inmates are not required to specially plead or demonstrate exhaustion in their complaints"); Wyatt v. Terhune, 315 F.3d 1108, 1117-19 (9th Cir. 2003) (failure to exhaust is an affirmative defense). Defendants bear the burden of raising and proving the absence of exhaustion, and their failure to do so waives the defense. Id. at 1119.

"In deciding a motion to dismiss for a failure to exhaust nonjudicial remedies, the court may look beyond the pleadings and decide disputed issues of fact." Wyatt, 315 F.3d at 1119. "I[f] the district court looks beyond the pleadings to a factual record in deciding the motion to dismiss for failure to exhaust -- a procedure closely analogous to summary judgment -- then the court must assure that [the prisoner] has fair notice of his opportunity to develop a record." Id. at 1120 n.14. When the district court concludes that the prisoner has not exhausted administrative remedies on a claim, "the proper remedy is dismissal of the claim without prejudice." Id. at 1120; see also Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005) ("mixed" complaints may proceed on exhausted claims). Thus, "if a complaint contains both good and bad claims, the court proceeds with the good and leaves the bad." Jones, 549 U.S. at 221.

"The level of detail in an administrative grievance necessary to properly exhaust a claim is determined by the prison's applicable grievance procedures." Jones, supra, 549 U.S. at 218. In California, prisoners are required to lodge their administrative complaint on a CDC Form 602, which requires only that the prisoner "describe the problem and action requested." Cal. Code Regs. tit. 15, § 3084.2(a). In Griffin v. Arpaio, 557 F.3d 1117 (9th Cir. 2009), the Ninth Circuit Court of Appeals adopted the standard enunciated by the Seventh Circuit, which provides that "when a prison's grievance procedures are silent or incomplete as to factual specificity, 'a grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought.'" Griffin, 557 F.3d at 1120 (reviewing Arizona procedures), quoting Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002). Thus, in California, "[a] grievance need not include legal terminology or legal theories unless they are in some way needed to provide notice of the harm being grieved. A grievance also need not contain every fact necessary to prove each element of an eventual legal claim. The primary purpose of a grievance is to alert the prison to a problem and facilitate its resolution, not to lay groundwork for litigation." Griffin, 557 F.3d at 1120; accord, Morton v. Hall, 599 F.3d 942, 946 (9th Cir. 2010).

"[E]xhaustion is not per se inadequate simply because an individual later sued was not named in the grievances." Jones, 549 U.S. at 219. It is nonetheless appropriate to require that a prisoner demonstrate, through the administrative grievance process and consistent with the PLRA, that he has standing to pursue his claims against a particular defendant. "[A]t an irreducible minimum, Art[icle] III [of the United States Constitution] requires the party who invokes the court's authority to 'show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.'" Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982) (quoting Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979).

B. Discussion

During the relevant period of time, plaintiff exhausted seven administrative grievances. These grievances have been identified, and duplicated for the court, by Calipatria State Prison Appeals Coordinator J. Jimenez. See Jimenez Decl. (Dkt. No. 22-2.) The court's review of all seven grievances,⁴ each denied at the Director's Level Review, demonstrates that only two grievances contain allegations relevant to this action, Log No. CAL-05-02249, and Log No. CAL-05-02594.

4 Plaintiff exhausted the following seven administrative grievances during the relevant time period while incarcerated at Calipatria State Prison: Log. No. CAL-05-00663 (denied at Director's Level Review on April 12, 2005); Log No. CAL-05-01204 (denied July 11, 2005); Log No. CAL-05-01410 (denied August 14, 2005); Log No. CAL-05-01280 (denied June 19, 2005); Log No. CAL-05-02249 (denied November 9, 2005); Log No. CAL-05-02594 (denied December 22, 2005); and Log No. CAL-05-01053 (denied December 18, 2006).

In Log No. CAL-05-02249, initially submitted on November 9, 2005, plaintiff alleged that defendants⁵ Ryan, Nunez, Chavarria, Rush, and Anaya, "entered into a conspiracy and/or were grossly negligent . . . in prevent[ing] [plaintiff ] from the enjoyment of his constitutional and statutory right to privacy by non-electronically eavesdropping on [plaintiff's] telephone conversations with his attorney, so as to gain an advantage in the ongoing civil rights litigation between [plaintiff] and the defendants . . . in the matter, Walker v. Gomez, et al." (Dkt. No. 30 at 37, 43.) Plaintiff alleged that "staff in the Litigations Office," specifically, Litigation Coordinator Nunez, "acting as [an] agent on behalf of the [other] defendants referred to herein," "contacted K. Rush and D. Anaya and informed them I would be receiving telephone calls from my attorney, and it was permissible to eavesdrop on my attorney calls because they were not confidential." (Id. at 43.) As a result, plaintiff alleged, he was deceived into believing that he "had no choice but to be and to remain in a position and proximity which would permit them to eavesdrop on [plaintiff's] telephone calls with his attorney." (Id.) Plaintiff alleged that the named staff members "breached their legal and ethical duty" to inform plaintiff that he could speak confidentially with his attorney by telephone. (Id.) Plaintiff asserted that, thereafter, when he "attempted to take steps to safeguard his rights," he was retaliated against in the following ways: (1) that Anaya told plaintiff that he had only two options, to continue having his calls monitored, or to be visited by his attorney; and (2) that plaintiff's telephone calls were reduced from 30 minutes to 15 minutes. (Id. at 44.) Plaintiff concluded (id.):

5 The court does not include plaintiff's allegations against defendants who have already been dismissed from this action. See Dkt. Nos. 17, 19 (dismissing defendants CDCR, Woodford, Tilton, Grannis, and Moreno).

Although the actions alleged have been ongoing as far back as 2004, the most recent manifestations . . . consist[] of K. Rush and/or D. Anaya, non-electronically eavesdropping on my telephone calls with my attorney during the following five (5) dates: 9/13/05, 9/21/05, 10/26/05, 10/27/05, 10/28/05.

Pursuant to these allegations, plaintiff asserted that the named staff members had violated plaintiff's "right to privacy under Art. 1 § 1 of the California Constitution, and Chapter 1.5 (Invasion of Privacy)[,] § 636 of the California Penal Code, as well as my right to [be] free from retaliation for exercising my State and Federal right of access to the courts." (Dkt. No. 30 at 37.)

This grievance was denied at the First Level Review, on December 14, 2005, on the ground that the "subject" telephone call, later identified only as plaintiff's 10/27/05 call, was properly handled because it had not been pre-approved as a "confidential call," as required by former Section 3282(g)(1) and (2), Title 15, California Code of Regulations.⁶ (Dkt. No. 30 at 40.) The First Level Decision noted that, "[w]hen the [plaintiff] was done speaking with the judge, his attorney got on the line and began talking with the appellant. The telephone call was not pre-approved . . ." (Id. at 40.) The grievance was denied at the Second Level Review and Director's Level Review for the same reasons (id. at 36, 39) concerning the one telephone call, notwithstanding plaintiff's efforts to have all "five" of his identified calls addressed, and despite his assertion that his calls were conducted not on "inmate phones," but on "the counselor's phones," where confidential calls are normally made (id. at 41). The claim was exhausted pursuant to the Director's Level Decision issued April 28, 2006.

6 Former 15 C.C.R. § 3282(g), which was amended in 2008, provided in pertinent part:

3281(g)(1) " . . . confidential calls may be approved on a case-by-case basis by the institution head or designee only upon written request from the inmate's attorney . . ."
3281(g)(2) " . . . it is within the discretion of the institution head or his/her designee to approve or deny a confidential call . . . a confidential call may be denied where the institution head or her/her designee determines that normal legal mail or attorney visits were appropriate means of communication. . ."

See Dkt. No. 30 at 40; see also "History," 15 Cal. Code Regs. Ann., Item No. 9.

On December 22, 2005, plaintiff submitted Log No. CAL- 05-02594, a "staff complaint," wherein he asserted that defendant Price, who interviewed plaintiff on December 7, 2005, pursuant to plaintiff's above-noted grievance (Log No. CAL-05-02249), threatened and intimidated plaintiff because he had filed the grievance. Plaintiff described the incident as follows (Dkt. No. 30 at 51, 57):

On 12/7/05, Capt. J. Price interviewed me concerning a complaint I filed against staff. . . . While trying to explain a remedy to prevent such acts from happening in the future, Capt. Price cut me off, and proceeded to try and justify the actions of the involved staff. When I tried to point out the futility of his attempts, he became frustrated, and told me[,] "I don't have time for this. I told you guys about wasting my time with these 602's. I have a yard to try to get up and running! You may have one (sic) the last battle, but you won't win the next one. The next time, you'll be the one in the hole!" When I tried to ask him what did he mean, he just stated, "You know what I mean. [D]on't play games on my yard!' I told him, I don't play games. He said, it didn't matter what I said. He said, "Both green and blue told me you were a "troublemaker." I tried to tell him that I haven't caused trouble in the 2 ½ years I've been on D-Facility. He then stated, "Just keep this in the back of your mind, the next time I hear you're playing games on my yard, you'll be in the hole!" When I tried to defend myself from these baseless allegations, Price began yelling loudly, "You want to go the hole now?! You want to go to the fucking hole right now?!" I stated, no Sir. He stated, "Then take heed to my words, and get out of my office. I'm busy." [¶] I left his office, intimidated, wondering why he screamed at me that way, and threatened to put me in the hole. I have the specific right not to be treated this way during an interview of my appeal.

Pursuant to these allegations, plaintiff requested "an unbiased, independent and thorough investigation. I want to be assured in writing that no further reprisals will be taken against me for exercising my State and Federal Constitutional and Statutory rights to use the appeal system. . . ." (Dkt. No. 30 at 51.)

This grievance was "partially granted" at the First Level Review, because an investigation was conducted in response to plaintiff's allegations. (Id. at 52, 55-56.) Shortly thereafter, on April 13, 2006, plaintiff was transferred to Mule Creek State Prison. Nevertheless, plaintiff sought and obtained a Second Level Review, which was "partially granted" due to the investigation having been conducted. (Id. at 52-54.) The Director's Level Review decision was issued September 27, 2006, denying plaintiff's grievance. (Id. at 50.)

Pursuant to this review, the court finds that the following allegations, set forth in plaintiff's complaint (and summarized here), were administratively exhausted:

a. That, on September 13, 2005, October 26, 2005, October 27, 2005, and October 28, 2005,⁷ defendants Ryan, Nunez, Chavarria, Rush and Anaya allegedly denied plaintiff confidential telephone calls with his attorney; this conduct was allegedly motivated by retaliation against plaintiff for pursuing another federal civil rights action.⁸ (Complaint ("Cmplt.") at ¶¶ 13-18, 40-41.)
b. That, on December 7, 2005, defendant Price, allegedly acting in retaliation for plaintiff filing the above-noted administrative grievance, intimated and threatened plaintiff. (Cmplt. ¶ 29.)

7 Although, in his administrative grievance, plaintiff also challenged the handling of his September 21, 2005 telephone call, that date is not referenced in the complaint.

8 These allegations reasonably include plaintiff's further allegation that, on November 3, 2005, plaintiff's attorney informed him that the litigation office would be shortening their calls from 30 minutes to 15 minutes, a change that plaintiff asserts was made in retaliation by defendants Rush, Anaya, Price and Chavarria. (Id. ¶¶ 21, 42.) These allegations also reasonably included plaintiff's allegation that, on November 30, 2005, defendant Anaya refused to step out of the litigation office during plaintiff's telephone call with his attorney. (Id. ¶ 28.)

However, the court finds that the following allegations, while set forth in plaintiff's complaint, were not administratively exhausted, and therefore must be dismissed from this action:

a. That, on November 28, 2005, defendants Price and Chavarria allegedly retaliated against plaintiff for filing his November 9, 2005 grievance (Log No. CAL-05-02249), by conspiring to place an inmate, who had previously been administratively segregated for conspiring to assault plaintiff, back into plaintiff's facility; that defendants Price and Chavarria "knew or should have known that placing that inmate back on the facility would result in Plaintiff being assaulted and placed in segregation."⁹ (Cmplt. ¶¶ 22-26.)
b. That, on March 21, 2006, and March 30, 2006, defendants Rush and Chavarria allegedly retaliated against plaintiff for filing his November 9, 2005 grievance (Log No. CAL-05-02249), by ordering another correctional officer (Partida) to handcuff plaintiff during his telephone calls with his attorney.¹⁰ (Cmplt. ¶¶ 31-33.)

9 Given the allegedly alarming nature of these allegations, and the clear and readily available solution of denying or overturning the placement, plaintiff had an affirmative obligation to raise the matter before prison officials. This is the type of grievance for which prison officials must be "put on notice" in order to "facilitate its resolution." Griffin, 557 F.3d at 1120.

10 There is no allegation of handcuffing in either of plaintiff's exhausted grievances. While plaintiff's second grievance, commenced December 22, 2005, broadly sought "that no further reprisals . . . be taken against me for exercising my rights . . . including but not limited to . . . harassment of my person," such a general request for relief cannot reasonably be construed to sustain additional claims premised on subsequently-alleged official misconduct. Moreover, plaintiff had ample opportunity to report the alleged handcuffing pursuant to his second administrative grievance. Plaintiff's requests for Second Level, and Director's Level, Reviews (made in May 2006, and June 2006, respectively) made no reference to plaintiff's allegations of handcuffing in March 2006. (See Dkt. No. 30 at 52.) While prison officials were no longer in a position to resolve the matter, due to plaintiff's transfer, the alleged significance of the challenged conduct was sufficiently important to the merits of plaintiff's second grievance that it should have been mentioned.

III. California Tort Claims Act

Defendants contend that plaintiff's state law claims should be dismissed due to plaintiff's alleged failure to comply with the California Tort Claims Act.

A. Legal Standards

Under the California Tort Claims Act ("CTCA"), set forth in California Government Code sections 810 et seq., a plaintiff may not bring a suit for monetary damages against a public employee or entity unless the plaintiff first presented the claim to the California Victim Compensation and Government Claims Board ("VCGCB" or "Board"), and the Board acted on the claim, or the time for doing so expired. "The Tort Claims Act requires that any civil complaint for money or damages first be presented to and rejected by the pertinent public entity." Munoz v. California, 33 Cal. App. 4th 1767, 1776 (1995). The purpose of this requirement is "to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation." City of San Jose v. Superior Court, 12 Cal.3d 447, 455 (1974) (citations omitted). Compliance with this "claim presentation requirement" constitutes an element of a cause of action for damages against a public entity or official. State v. Superior Court (Bodde), 32 Cal. 4th 1234, 1244 (2004). Thus, in the state courts, "failure to allege facts demonstrating or excusing compliance with the claim presentation requirement subjects a claim against a public entity to a demurrer for failure to state a cause of action." Id. at 1239 (fn. omitted).

Consistently, federal courts require compliance with the CTCA for pendant state law claims that seek damages against state public employees or entities. Willis v. Reddin, 418 F.2d 702, 704 (9th Cir. 1969); Mangold v. California Public Utilities Commission, 67 F.3d 1470, 1477 (9th Cir. 1995). State tort claims included in a federal action, filed pursuant to 42 U.S.C. § 1983, may proceed only if the claims were first presented to the state in compliance with the claim presentation requirement. United States v. California, 655 F.2d 914, 918 (9th Cir. 1980); Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 627 (9th Cir. 1988); Butler v. Los Angeles County, 617 F. Supp. 2d 994, 1001 (C.D. Cal. 2008).

To be timely, a claim must be presented to the VCGCB "not later than six months after the accrual of the cause of action." Cal. Govt. Code § 911.2. Should a claimant miss this deadline, the claimant may file a written application for leave to file a late claim, within a year after the accrual of the cause of action. Id., § 911.4. If the Board denies the application, the notice of denial must include a warning to the claimant that no court action may be brought on the claim unless the claimant first files a petition with the appropriate court requesting relief from the claim presentation requirement, and obtains a court order granting such relief. Id., § 911.8. Failure to obtain such relief bars any suit on the claim.

An individual who files a claim pursuant to the CTCA is charged with knowledge of the applicable statute of limitations. See Hunter v. Los Angeles County, 262 Cal. App. 2d 820, 822 (1968) ("once a claimant has filed his claim, he demonstrates familiarity with the statutory procedures governing his grievance, and can reasonably be charged with knowledge of the time limitations that are part of that procedure").

B. Discussion

Plaintiff filed only one relevant claim with the VCGCB,¹¹ which was signed by plaintiff on June 14, 2006, and received by the Board on July 3, 2006. See Declaration of J. Reinmiller, Custodian of Records, VCGCB's Government Claims Program. (Dkt. No. 22-4.) The claim (Claim No. G-561548) was made, in pertinent part, against defendants Rush, Anaya, Nunez, Chavarria, Ryan, Bourland and Price, based on "incidents" that allegedly occurred on "9/13/05, 9/21/05, 10/26/05, 10/27/05, and 10/28/05." (Dkt. No. 22-4 at 9.) Plaintiff alleged therein that the named officials "deliberately violated Penal Code § 636 when they eavesdropped on confidential telephone calls between claimant and his attorney. They also violated their own regulations by forcing claimant to sit in a room while they eavesdropped on claimant's confidential telephone calls." (Id. at 10-11.) Plaintiff further alleged that the named officials "failed or refused to promulgate or publish a procedure that outlined my ability to send and receive confidential telephone calls from claimant's attorney, as required by their own regulations. Instead, they verbally informed me that they must be present in the room while claimant spoke to his attorney. Because the named persons on whom this claim[] is filed knew or should have known they were violating claimant's statutory rights under Penal Code § 636, once I became aware of their violation, I filed an appeal challenging their violations; however, the appeal was ignored, and they further attempted to cover-up their wrongdoing." (Id. at 11.)

11 Plaintiff filed a second claim with the VCGCB during the relevant time period (Claim No. G-561547), which challenged the institutional practice of exposing prisoners to constant lighting, and requested that cells be retrofitted with light switches. (See Dkt. No. 22-4 at 24-33.) That claim is not relevant to the instant action.

Plaintiff attached to his tort claim a copy of his pertinent administrative grievance (Log No. CAL-05-2249), which had been exhausted on April 28, 2006.

On the face of the claim form, plaintiff answered "Yes" to the question, "Was the incident more than six months ago?" (Id.) In an attached "Separate Statement of Presentation of Late Claim," plaintiff sought leave to file his claim outside the six-month deadline. That "Statement" provided in pertinent part (Dkt. No. 22-4 at 12):

Claimant contends that his [late] claim should be accepted for the following reasons:¹²

1. Claimant could not file this claim until he exhausted his administrative remedies within the CDCR, which was exhausted on 4/28/06.
2. Claimant did not become aware that his rights were being violated until shortly after the last incident of violation of his statutory privacy rights under Penal Code § 636 on 10/28/05.

12 Plaintiff does not pursue, in opposing the instant motion, his third contention presented to the VCGCB, which asserted that a late claim was appropriate when "proof of actual damages is not required by statute." (Dkt. No. 22-4 at 12.)

Assuming, liberally, that plaintiff's cause of action accrued on October 28, 2005 (the most recent incident of alleged misconduct), plaintiff had six months thereafter, or until April 28, 2006, to timely submit his claim to the VCGCB. However, plaintiff submitted his claim on July 3, 2006, acknowledging that it was untimely, and requesting that he be granted leave to file a late claim.

By letter dated November 20, 2006, the Board notified plaintiff that it had referred plaintiff's application to file a late claim to the "affected State agencies for review and recommendation." (Dkt. No. 22-4 at 8.) On December 27, 2006, the Board informed plaintiff that staff had recommended the denial of plaintiff's application because it did not appear to meet any of the requirements for accepting a late claim, as set forth in California Government Code section 911.6, and, hence, that the Board intended to deny plaintiff's claim at its February 22, 2007 meeting. (Id. at 6.) As required, the Board informed plaintiff that, "[y]our next recourse, should you wish to pursue the matter further, will be to file a petition in court for relief from the requirements of Government Code Section 945.4." (Id.)

Thereafter, in a letter dated March 2, 2007, the Board informed plaintiff that his application to present a late claim was denied on February 2, 2007. (Id. at 5.) The letter again informed plaintiff that, "[i]f you wish to file a court action on this matter, you must first petition the appropriate court for an order relieving you from the provisions of Government Code 945.4. (Claim presentation requirement). See Government Code Section 946.6." (Id.) Plaintiff was informed that he had six months from the date of the denial, or until August 2, 2007, to file such petition. (Id.)

However, plaintiff did not file, in any court, a petition for relief from the claim presentation requirement.

Plaintiff now makes several arguments in support of his contention that his failure to comply with the requirements of the CTCA should not preclude him from pursuing his state law damages claims in the present action.

First, plaintiff avers that he reasonably believed that he was required to exhaust his administrative remedies before filing his state tort claim. Plaintiff directs the court's attention to an excerpt from the California State Prisoners Handbook (Fourth Edition), that states in pertinent part:

[I]n 2004, the Government Claims Board requiring prisoners to exhaust the 602 process before filing a Government Claims Form. . . . Consequently the Board rescinded this policy and no longer requires prisoners to complete the 602 process before filing a Board of Control Claim.

(Dkt. No. 30 at 10; see also Ex. A.) The selected passage does not reasonably support plaintiff's construction (unless plaintiff stopped reading after the first sentence). Moreover, because plaintiff failed to file a judicial petition for relief, he forfeited any alleged excuse premised on the reasons for permitting such relief, including "mistake, inadvertence, surprise or excusable neglect," Cal. Govt. Code § 911.6 (b)(1). See e.g. Collins v. Los Angeles County, 241 Cal. App. 2d 451, 460 (1966) ("Having failed to rely on these sections to obtain relief by petition to file a late claim, appellants are not now in a position to cite these sections in support of their contentions herein.").

Plaintiff next argues that the limitations period for filing his state tort claim was tolled pending the exhaustion of his administrative remedies. While the statute of limitations for bringing a civil action is tolled while a prisoner exhausts his administrative remedies, Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005), plaintiff has cited no authority, and the court has found none, that supports plaintiff's argument that the deadline for filing a state tort claim is similarly tolled during the period of administrative exhaustion.¹³ Plaintiff generally relies on case law that authorizes equitable tolling when a plaintiff, faced with alternate remedies, makes a good faith decision to pursue one remedy, but is then belatedly required to pursue an alternate remedy. See Elkins v. Derby, 12 Cal.3d 410, 411 (1974) (tolling statute of limitations in personal injury action for period during which plaintiff pursued his workers' compensation remedy); Guerrero v. Gates, 442 F.3d 697, 706 (9th Cir. 2006), and cases cited therein; However, this exception is very narrow. See e.g. Freeman v. State Farm Mut. Auto. Ins. Co., 14 Cal.3d 473, 489 (1975) (declining to apply the "several legal remedies" principle articulated in Elkins, because it is limited to scenarios in which "the two kinds of proceedings required the plaintiff to take inconsistent positions," and, thus, "requiring him to pursue the two concurrently in different tribunals would result in an awkward duplication of procedures") (citing Elkins, 12 Cal. 3d at 412) (internal quotation marks omitted). It cannot be said, in the instant case, that plaintiff's exhaustion of administrative remedies required that he take a position inconsistent with the claim he presented to the VCGCB. Plaintiff's attachment of his administrative appeal to his state tort claim underscores this point -- while compliance with the claim presentation requirement would authorize a suit for damages, the same alleged facts and legal claims supported both plaintiff's tort claim and his administrative grievance.

13 Plaintiff's reliance on Wright v. State of California, 122 Cal. App. 4th 659 (2004), is misplaced. The court in Wright found, in pertinent part, that the period of administrative exhaustion tolled "the six-month time limit for filing a court action after the Board of Control rejects a government tort claim," id. at 671. The court in Wright did not rule that the administrative exhaustion period tolls the deadline for initiating a tort claim. Moreover, the court held that plaintiff could not maintain his action because he filed his complaint before exhausting his administrative remedies.

Plaintiff's third argument is that the Board's allegedly belated notification to plaintiff that his application to file a late claim had been rejected constitutes a waiver of defendants' untimeliness defense. Plaintiff cites no relevant authority. As a practical matter, the Board accorded plaintiff ample notice that his application to file a late claim would be denied. (Dkt. No. 22-4 at 5, 6.) Moreover, the Board twice instructed plaintiff that the appropriate course for challenging the denial would be a court-filed petition for relief. (Id.) Because plaintiff did seek such relief, his state tort damages claims are barred in this court.

Finally, plaintiff argues that it is within this court's discretion to consider plaintiff's state tort claims, nothwithstanding plaintiff's failure to meet the pertinent state filing requirements. While there appears to be a split of authority among California's district courts whether a federal court (rather than a state superior court only) has jurisdiction to make a ruling on a timely-filed petition for leave to file a late claim, see e.g. Garber v. City of Clovis, 698 F. Supp. 2d 1204, 1210 (E.D. Cal. 2010), and cases cited therein, those federal courts that have assumed jurisdiction of such petitions have done so pursuant to a timely-filed petition in federal court. See e.g. Rahimi v. National R.R. Passenger Corp. (Amtrak), 2009 WL 1883756, *4 (N.D. Cal. 2009); Perez v. Escondido, 165 F. Supp.2d 1111, 1115 (S.D. Cal. 2001). In contrast, before plaintiff initiated this action in state court, he should first have filed a petition for relief in that court. This court is without authority to construe plaintiff's belated argument, set forth in his opposition to defendants' motion to dismiss, as a timely petition under Section 946.6. Therefore, this court is without jurisdiction to adjudicate plaintiff's request for relief from California's claim presentation requirement.¹⁴

14 Moreover, if the court has such discretion, it declines to exercise it herein.

As a result of plaintiff's failure to comply with the requirements of the California Tort Claims Act, the court finds that plaintiff is precluded from pursuing his state law damages claims.

IV. Claims for Injunctive and Declaratory Relief

Plaintiff's requests for injunctive relief, premised on both state and federal law, were rendered moot upon plaintiff's transfer to Mule Creek State Prison.¹⁵ Therefore, plaintiff's requests for injunctive relief should be dismissed.

15 Plaintiff's allegation that the challenged practice of denying plaintiff confidential calls continued "between April 28, 2006 and the present"(Cmplt. ¶ 34), after his transfer to Mule Creek State Prison, is not properly before this court.

Because plaintiff may seek neither injunctive relief nor damages pursuant to his state law claims, this court recommends dismissal of each of plaintiff's state law claims, set forth in his "causes of action" two through five. (See Cmplt. at ¶¶ 66-87.)

Plaintiff's sixth cause of action, for declaratory relief, should also be dismissed. (Id. at ¶¶ 88-93.) To the extent this cause of action is premised on state law, dismissal is clearly warranted. To the extent that plaintiff's sixth cause relies on federal law, this court declines to exercise its discretionary authority, under 28 U.S.C. § 2201, to offer federal declaratory relief. See Wilton v. Seven Falls Co., 515 U.S. 277, 287 (1995).

For these reasons, the court recommends dismissal of each of plaintiff's state law claims, as well as plaintiff's federal claims for injunctive and declaratory relief. Remaining are plaintiff's damages claims premised on federal law, as set forth in plaintiff's "First Cause of Action" (Cmplt. at ¶ 53-65), and reasonably construed herein.

V. Potentially Cognizable Claims

Defendants contend that each of plaintiff's federal claims should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim.

A. Legal Standards

A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6), challenges the sufficiency of the pleadings set forth in the complaint. Vega v. JPMorgan Chase Bank, N.A., 654 F. Supp. 2d 1104, 1109 (E.D. Cal. 2009). Under the "notice pleading" standard of the Federal Rules of Civil Procedure, a plaintiff's complaint must provide a "short and plain statement" of plaintiff's claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). In order to survive dismissal for failure to state a claim, a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554 (2007). "A complaint may survive a motion to dismiss if, taking all well-pleaded factual allegations as true, it contains 'enough facts to state a claim to relief that is plausible on its face.'" Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)). "'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.'" Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (quoting Iqbal, 129 S. Ct. at 1949). The court accepts "all facts alleged as true and construes them in the light most favorable to the plaintiff." County of Santa Clara v. Astra USA, Inc., 588 F.3d 1237, 1241 n.1 (9th Cir. 2009). The court is "not, however, required to accept as true conclusory allegations that are contradicted by documents referred to in the complaint, and [the court does] not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Paulsen, 559 F.3d at 1071 (citations and quotation marks omitted).

In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the court "may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks omitted). However, under the "incorporation by reference" doctrine, a court may also review documents "whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiff's] pleading." Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (citation omitted and modification in original). The incorporation by reference doctrine also applies "to situations in which the plaintiff's claim depends on the contents of a document, the defendant attaches the document to its motion to dismiss, and the parties do not dispute the authenticity of the document, even though the plaintiff does not explicitly allege the contents of that document in the complaint." Id.

The court's assessment of cognizable federal claims set forth in plaintiff's "First Cause of Action," is also guided by the principles of administrative exhaustion, wherein the underlying relevant administrative grievances need not have identified every fact, defendant or legal theory, only that the allegations therein may reasonably be construed to include the alleged wrongs and named defendants identified in the suit. See Jones, 549 U.S. at 219; Griffin, 557 F.3d at 1120.

B. Discussion

1. Attorney Calls

Plaintiff alleges that defendants violated his rights under the First, Fourth, and Fourteenth Amendments, and the attorney-client privilege, when they interfered with plaintiff's telephone calls with his attorney. For the following reasons, the court finds that plaintiff may state potentially cognizable claims under the Fourth and Fourteenth Amendment. However, the court recommends that plaintiff be granted leave to file an amended complaint that may include any of the following claims (but no others).

a. First Amendment

"Prisoners have a First Amendment right to telephone access, subject to reasonable security limitations." Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996) (citing Strandberg v. City of Helena, 791 F.2d 744, 747 (9th Cir. 1986) (see cases cited therein)), amended by 135 F.3d 1318 (9th Cir. 1998); accord Halvorsen v. Baird, 146 F.3d, 680, 689 (9th Cir. 1998); Carlo v. City of Chino, 105 F.3d 493, 496 (9th Cir. 1997); Henry v. County of Shasta, 132 F.3d 512, 519 (9th Cir. 1997); Young v. Seling, 72 Fed. Appx. 657, 659 (9th Cir. 2003); Johannes v. County of Los Angeles, 2011 WL 6149253, *12 (C.D. Cal. 2001); Golden v. County of Tulare, 2009 WL 2407708 (E.D. Cal. 2009). However, the Ninth Circuit has emphasized that this right lacks definition, and may readily be subsumed by reasonable regulation. "The genesis of this purported [First Amendment] constitutional right to use a telephone is obscure. Our cases have not identified the source of the right, and our pronouncements of its existence have been conclusory and unnecessary to the decisions." Valdez v. Rosenbaum, 302 F.3d 1039, 1048 (9th Cir. 2002), cert. den. 538 U.S. 1047 (2003). "[A] prison inmate retains [only] those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." Pell v. Procunier, 417 U.S. 817, 822 (1974). The reasonableness of a prison regulation (or policy, practice or decision), including one that restricts a prisoner's right to telephone access, is assessed pursuant to the factors articulated in Turner v. Safely, 482 U.S. 78, 89-90 (1986).¹⁶ Valdez, 302 F.3d at 1048-49.

16 As summarized by the Ninth Circuit, these factors are: "(1) whether there is a valid, rational connection between the restriction and the legitimate governmental interest put forward to justify it; (2) whether there are alternative means of exercising the right; (3) whether accommodating the asserted constitutional right will have a significant negative impact on prison guards and other inmates, and on the allocation of prison resources generally; and (4) whether there are obvious, easy alternatives to the restriction showing that it is an exaggerated response to prison concerns." Valdez, 302 F.3d at 1049, citing Turner, 482 U.S. at 89-90, and Mauro v. Arpaio, 188 F.3d 1054, 1058-59 (9th Cir. 1999) (en banc).

Significantly, plaintiff does not challenge the constitutionality of the state regulation that governs prisoners' telephone access. The subject regulation, Section 3282, Title 15, California Code of Regulations ("Section 3282"), is premised in part on the statutory rights accorded to prisoners by California Penal Code section 636 (proscribing, in pertinent part, the eavesdropping or recording of a confidential communication between a prisoner and his attorney), Section 637 (proscribing the disclosure of such confidential communications to third parties), and Section 637.2 (providing a private right of action, for statutory damages, against any person who violates the proscriptions set forth in Sections 636 or 637). Section 3282(g) sets forth the procedures by which a prisoner may place or receive a confidential attorney call, including the requirement that the inmate's attorney request in writing, and obtain, prior approval for the call. See Section 3282(g)(1)-(4). The approval or denial of such requests, and the designated date, time, duration and place of an approved confidential call, are delegated to the discretion of the "institution head or designee," "on a case-by-case basis." Section 3282(g)(1), (5), (6). "As long as the attorney/client communication privilege is not violated, a confidential call may be denied where the institution head, or his/her designee, determines that normal legal mail or attorney visits were appropriate means of communication and were not reasonably utilized by the inmate or attorney." Section 3282(g)(6).

Plaintiff acknowledges that the alleged incidents of monitoring that he challenges took placed in 2005, prior to implementation of pertinent amendments to Section 3282.¹⁷However, while the February 2008 amendments clarified the procedures and content of an attorney's request, including the necessity of obtaining an attorney background check, the amendments do not appear to have materially changed the nature or substance of the process. Prior to 2008, as now, "confidential calls [were] approved on a case-by-case basis by the institution head or designee only upon written request from the inmate's attorney," and could be "denied where the institution head or her/her designee determines that normal legal mail or attorney visits were appropriate means of communication. . . ." Section 3281(g)(1), (2) (2007). See n.6, supra.

17 Plaintiff asserts that the amendments to Section 3282 were a "direct result of [plaintiff's] 602 and Tort Claim." (Dkt. No. 30 at 20, 21.) Plaintiff directs the court's attention to the following statement by CDCR, in its 2007 Notice of Proposed Regulations (id. at 68, 71):

These regulations are recommended by the Office of the Inspector General based on a confidential phone call that was granted between an attorney and inmate without following proper procedure, and are necessary to specify and standardize the process that [an] attorney must complete in order to receive approval for a confidential phone call with an inmate. This will provide clarity, consistency and standardization on regulations governing confidential calls for the Department of Corrections and Rehabilitation.

Plaintiff contends that defendants failed to comply with Section 3282, in three ways:¹⁸ (1) by failing to inform plaintiff of the procedures for obtaining a confidential attorney call; (2) by purposefully misinforming plaintiff that his only options were a monitored call or a visit by his attorney; and (3) by failing to observe the confidentiality of calls that were allegedly pre-approved in compliance with Section 3282.

18 Section 1983 does not provide a cause of action for the alleged violation of a state law, but only provides a cause of action for violations of the federal "Constitution and laws." 42 U.S.C. § 1983; see e.g. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 117 (1984) ("a federal suit against state officials on the basis of state law contravenes the Eleventh Amendment"). "To the extent that the violation of a state law amounts to the deprivation of a state-created interest that reaches beyond that guaranteed by the federal Constitution, Section 1983 offers no redress." Lovell v. Poway Unified School District, 90 F.3d 367, 370 (9th Cir. 1996) (citations omitted).

The court finds that these challenges fail to state a cognizable First Amendment claim, based on the Ninth Circuit's reticence to clearly articulate such a right, and plaintiff's reliance on (rather than challenge to) Section 3282. However, because this court recommends that plaintiff be granted leave to amend his complaint to more clearly articulate his Fourth and Fourteenth Amendment claims, plaintiff should also be granted leave to again attempt to state a potentially cognizable claim under the First Amendment.

b. Fourth Amendment

To the extent that plaintiff contends that defendants failed to observe the confidentiality of calls that were allegedly made in compliance with Section 3282, the Fourth Amendment may be implicated. "The Fourth Amendment is not triggered unless the state intrudes into an area in which there is a constitutionally protected reasonable expectation of privacy." U.S. v. Van Poyck, 77 F.3d 285, 290 (9th Cir. 1996) (citations and internal quotation marks omitted). The Ninth Circuit has recognized that a prisoner may have a reasonable expectation of privacy, under the Fourth Amendment, in a "properly placed" telephone call with his attorney.¹⁹ Id. at 291 n.9.

19 For the reasons set forth above, plaintiff is precluded from directly pursuing a state damages claim pursuant to California Penal Code section 637.2, premised on an alleged violation of California Penal Code section 636 (rendering it a crime to eavesdrop on a prisoner's conversation with his attorney).

The court cannot determine, pursuant to the instant complaint, which of the subject calls plaintiff alleges were "properly placed," in compliance with Section 3282 (as it then existed), or the alleged roles of each defendant. Therefore, this court recommends that plaintiff be granted leave to amend his complaint so that he may more clearly articulate potential Fourth Amendment claims, based on his allegations that specific defendants improperly monitored plaintiff's specifically approved confidential calls.

c. Fourteenth Amendment

To the extent that plaintiff contends that defendants failed to inform him of the procedures for placing or receiving confidential attorney calls and/or purposefully misled plaintiff regarding his options, the Fourteenth Amendment may be implicated. Plaintiff's contentions that defendants violated Section 3282, and thereby denied him the process to which he was allegedly entitled, may state a potentially cognizable claim under the procedural guarantees of the Due Process Clause.

The most analogous Ninth Circuit case appears to be Carlo v. City of Chino, 105 F.3d 493 (9th Cir. 1997), in which the court found that California Penal Code section 851.5 -- which requires that individuals be informed within three hours of arrest, "except where physically impossible," that they have the right to make three completed telephone calls -- creates a state liberty interest, subject to the procedural protections of the Fourteenth Amendment. Id. at 496-500. The court held that "the right granted by the statute is one of 'real substance' and merits constitutional due process protections." Id. at 500, quoting Wolff v. McDonnell, 418 U.S. 639, 557 (1974). Accord Gallagher v. City of Winlock, 287 Fed. Appx. 568, 576 n.7 (9th Cir. 2008) (construing, in dicta, a liberty interest in a Washington state statute that accords individuals arrested for criminal offenses with the "right to call a lawyer").

However, Carlo may be distinguishable from the instant case in important ways. In assessing whether the statute at issue created a protected liberty interest, the Ninth Circuit relied on Supreme Court cases finding liberty interests only in state provisions that are both "mandatory" and "cannot be eviscerated absent meeting specific substantive preconditions." Carlo, 105 F.3d at 497, citing Hewitt v. Helms, 459 U.S. 460, 471-72 (1983). The Ninth Circuit noted subsequent Supreme Court decisions that appear to establish an even higher threshold, viz., "recognizing liberty interests in state laws [only] where they grant 'freedom from restraint . . . which imposes atypical and significant hardship . . Carlo, 105 F.3d at 498-99, quoting Sandin v. Conner, 515 U.S. 472, 484 (1995).

The telephone access rights accorded to inmates by Section 3282 appear to be less compelling than those accorded to arrestees pursuant to Penal Code section 851.5. The right of a convicted felon to confidential attorney calls, pursuant to Section 3282, is not clearly "mandatory," and the discretion accorded the "institution head" in deciding whether to grant such access is limited only by his determination "that normal legal mail or attorney visits . . . were not reasonably utilized." Section 3282(g)(6).

Nevertheless, the Ninth Circuit, without undertaking such an analysis, has recognized in other cases a Fourteenth Amendment right of prisoners to have meaningful access to the courts, which has been construed to include the opportunity to have private conversations with one's attorney. See Ching v. Lewis, 895 F. 2d 608, 609 (9th Cir. 1990) (prisoner's Fourteenth Amendment right to have meaningful access to the courts includes contact visits with counsel, because "[t]he opportunity to communicate privately with an attorney is an important part of that meaningful access") (citation omitted); accord Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994); Meyers v. Pope, 303 Fed. Appx. 513, 516 (9th Cir. 2008) ("[t]he right of access to courts has been found to encompass the right to talk in person and on the telephone with counsel in confidential settings") (citation and internal quotation marks omitted).

Pursuant to these authorities, the court finds that plaintiff may state a potentially cognizable Fourteenth Amendment claim. However, the court cannot determine, pursuant to the instant complaint, which of plaintiff's calls may be actionable under the Fourteenth Amendment, or the alleged role of each defendant. Therefore, this court recommends denial of defendants' motion to dismiss on this ground, and further recommends that plaintiff be granted leave to file an amended complaint that clarifies his Fourteenth Amendment claim against the appropriate defendants.

d. Attorney-Client Privilege

As framed, plaintiff fails to state a cognizable claim pursuant to the attorney-client privilege. The parties' discussion whether plaintiff "waived" his attorney-client privilege, because he "chose" to proceed with his calls in the presence of third parties, would appear to be applicable only to "properly placed" calls, which, to the extent they occurred, have not been clearly identified in the complaint.

"The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law." Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). "Except as otherwise required by an Act of Congress or in rules prescribed by the Supreme Court . . . privilege . . . shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience . . . ." Fed. R. Evid. 501. The Ninth Circuit has explained that the attorney-client privilege applies, "(1) where legal advice of any kind is sought (2) from a professional legal advisor in [her] capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) except the protection be waived." United States v. Landof, 591 F.2d 36, 38 (9th Cir. 1978). However, "[t]he attorney-client privilege is an evidentiary rule designed to prevent the forced disclosure in a judicial proceeding of certain confidential communications between a client and a lawyer. . . .[T]he rule does not apply where there is no forced disclosure of a confidential communication in a judicial proceeding." Wharton v. Calderon,127 F.3d 1201, 1205 (9th Cir. 1997) (citation and internal quotation marks omitted).²⁰

20 Appropriately, plaintiff does not allege a violation of his Sixth Amendment right to counsel. "As to the Sixth Amendment, its reach is only to protect the attorney-client relationship from intrusion in the criminal setting[.]" Wolff v. McDonnell, 418 U.S. 539, 576 (1974) (citations omitted); see e.g. Williams v. Woodford, 384 F.3d 567, 584-85 (9th Cir. 2004), and cases cited therein (absent an allegation of prejudice, there is no cognizable Sixth Amendment claim). Here, plaintiff's communications with his attorney concerned another of plaintiff's federal civil rights cases, not a criminal proceeding.

Subject to these considerations, the court recommends that plaintiff be permitted the opportunity, in an amended complaint, to further develop this claim.

2. Retaliation Claims

Plaintiff alleges violation of his First Amendment right to access the courts, and to pursue administrative grievances, by: (1) defendants Ryan, Nunez, Chavarria, Anaya and Rush allegedly interfering with plaintiff's right to make confidential attorney calls, in retaliation for plaintiff pursuing a separate civil rights action, Walker v. Gomez, et al., Case No. 03:96-cv-0609 PCL; and (2) by defendant Price allegedly harassing plaintiff and threatening to place him in administrative segregation, in retaliation for plaintiff filing an administrative grievance (challenging the denial of confidential attorney calls).²¹

21 Plaintiff failed to exhaust his administrative remedies on his other retaliation claims. (See discussion, supra.)

To state a claim for retaliation under the First Amendment, a plaintiff must allege that, on a specific date, an individual state actor took an adverse action against plaintiff in retaliation for plaintiff engaging in a constitutionally protected activity, and that the adverse action did not reasonably advance a legitimate penological objective. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005);²² Rizzo v. Dawson, 778 F.2d 527, 531-32 (9th Cir. 1985). Direct and tangible harm will support a First Amendment retaliation claim even without demonstration of a chilling effect on the further exercise of a prisoner's First Amendment rights. Rhodes, at 568 n.11. "[A] plaintiff who fails to allege a chilling effect may still state a claim if he alleges he suffered some other harm" as a retaliatory adverse action. Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009), citing Rhodes, 408 F.3d at 568, n.11. Thus, plaintiff need not prove that the adverse action allegedly taken violated a constitutional right. Pratt v. Rowland, 65 F.3d 802, 806 (1995) (stating that to prevail on a retaliation claim, plaintiff need not "establish an independent constitutional interest" was violated); see also, e.g., Hines v. Gomez, 108 F.3d 265, 268 (9th Cir.1997) (upholding jury determination of retaliation based on filing of a false rules violation report); Rizzo, supra, 778 F.2d at 531 (transfer of prisoner to a different prison constituted adverse action for purposes of retaliation claim). Rather, the interest asserted in a retaliation claim is the right to be free of conditions that would not have been imposed but for the alleged retaliatory motive. However, not every allegedly adverse action will support a retaliation claim. See e.g. Huskey v. City of San Jose, 204 F.3d 893, 899 (9th Cir. 2000) (retaliation claim cannot rest on the logical fallacy of post hoc, ergo propter hoc, literally, "after this, therefore because of this.").

22 "Within the prison context, a viable claim of First Amendment retaliation 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, supra, 408 F.3d at 567-68.

The court finds that each of plaintiff's exhausted retaliation claims appears to be potentially cognizable based on the allegations of the current complaint. However, these claims, and the factual allegations in support of these claims, should be refined and clarified in plaintiff's amended complaint, without reference to plaintiff's unexhausted retaliation claims (i.e. plaintiff should specify what actions each defendant allegedly took against plaintiff in retaliation and what harm allegedly resulted).

3. Additional Claims

In addition to the above-noted claims, plaintiff alleges throughout his complaint that defendants Ryan, Bourland, Nunez and Chavarria acted both directly and in their supervisory capacities. Plaintiff is informed that, to state a claim for relief under Section 1983 based on a theory of supervisory liability, he must allege (and be able to prove) facts that the supervisory defendants: (1) personally participated in the alleged deprivation of constitutional rights, (2) knew of the violations and failed to prevent them, and/or (3) promulgated or implemented a policy so deficient that the policy itself is a repudiation of constitutional rights and is the moving force of the constitutional violation. Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (citations omitted); see also Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Facts consistent with at least one of these scenarios must be specifically alleged in order to state a potentially cognizable claim against a supervisory defendant.

Plaintiff also repeatedly alleges, in the current complaint, that defendants were engaged in a "civil conspiracy" to violate plaintiff's rights. To state a claim for civil conspiracy, under 42 U.S.C. § 1983, a plaintiff must allege that "two or more persons . . ., by some concerted action, intend[ed] to accomplish some unlawful objective for the purpose of harming [plaintiff] which results in damage." Gilbrook v. City of Westminster, 177 F.3d 839, 856-57 (9th Cir. 1999) (en banc), quoting Vieux v. East Bay Regional Park District, 906 F.2d 1330, 1343 (9th Cir. 1990) (internal quotation marks omitted). "[T]he party must provide material facts that show an agreement among the alleged conspirators to deprive the party of his or her civil rights," Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir.1998) (citations omitted), and must identify the alleged harm. Facts alleged in support of a conspiracy theory must be specific, and clearly articulate the alleged involvement of each identified defendant.

C. Summary

For the foregoing reasons, this court recommends that defendants' motion to dismiss plaintiff's federal claims be denied, and that plaintiff be granted leave to file an amended complaint that clearly articulates each of his federal claims, and specifically identifies how each defendant is allegedly implicated.

VI. Conclusion

For the foregoing reasons, IT IS HEREBY RECOMMENDED that:

1. Defendants' motion to dismiss (Dkt. No. 22), should be granted in part, and denied in part.

2. Plaintiff's state law claims ("causes of action" two through five), and federal claims for injunctive and declaratory relief, should be dismissed without leave to amend.

3. This action should proceed only on plaintiff's federal damages claims under Section 1983 ("cause of action" one), against the current defendants (Ryan, Bourland, Nunez, Chavarria, Anaya, Rush, and Price), for the reasons set forth herein.

4. Plaintiff should be granted leave to file and serve, within thirty (30) days after the adoption of these findings and recommendations, an amended complaint that clearly alleges, against the appropriate defendants, only those federal claims addressed herein. The amended complaint should be limited in length to twenty (20) pages, and should be typed and double-spaced. Failure of plaintiff to timely file and serve an amended complaint that conforms to these parameters should result in the dismissal of this action.²³

23 Nothing herein is intended to preclude defendants from bringing a legally supported, fully developed motion to dismiss in response once plaintiff files such an amended complaint.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within 14 days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

____________________________

KENDALL J. NEWMAN

UNITED STATES MAGISTRATE JUDGE