1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JEREMIAH M. JOHNSTON Case No.: 3:19-cv-00616-AJB-BLM

CDCR #AZ-0346,

12

ORDER:

Plaintiff, 13 vs. GRANTING DEFENDANTS’ 14

MOTION TO DISMISS

15 PLAINTIFF’S FIRST AMENDED RALPH DIAZ; SCOTT KERNAN; COMPLAINT [ECF No. 27] 16

DANIEL PARAMO; PAT COVELLO;

17 LT. RODRIGUEZ; D. HOUGH; S. CHAT;

D. JAIME; JANE and JOHN DOES 1

18

THROUGH 8,

19 Defendants. 20 21 22 Jeremiah Johnston, (“Plaintiff”), currently incarcerated at Richard J. Donovan 23 Correctional Facility (“RJD”) in San Diego, California is proceeding pro se and in forma 24 pauperis (“IFP”) in this civil rights action pursuant to 42 U.S.C. Section 1983. (ECF No. 25 10, FAC.) Plaintiff alleges that Defendants, officials from the California Department of 26 Corrections and Rehabilitation (“CDCR”), the past and present wardens of RJD, and four 27 correctional officers violated Plaintiff’s rights under the First, Eighth, and Fourteenth 28 Amendments. (See generally FAC.) 1 Currently before the Court is Defendants’ motion to dismiss Plaintiff’s First 2 Amended Complaint. (See ECF No. 27.) Defendants contend that Plaintiff fails to state a 3 claim upon which relief may be granted or, alternatively, that Plaintiff’s claims are barred 4 by qualified immunity. (See generally id. at 2.) Plaintiff has filed an opposition and 5 Defendants have filed a reply. (See ECF Nos. 36, 38.) Having carefully considered 6 Plaintiff’s First Amended Complaint and the parties’ briefs, the Court GRANTS 7 Defendants’ motion to dismiss Plaintiff’s First Amended Complaint with leave to amend. 8 I. Background 9 A. Plaintiff’s Allegations 10 Plaintiff, a physically and developmentally disabled prisoner, alleges that upon his 11 arrival at RJD in late 2017, he was placed into the “Enhanced Outpatient Program” 12 (“EOP”) by Defendant Paramo, who was then the warden of RJD. (See FAC ¶ 4.) He was 13 subsequently assigned to C-Yard, a “Level 4 institution,” which is “the highest general 14 custody classificatio[n] of CDCR.” (See id. at ¶ 10.) Although RJD contains several other 15 yards at various levels of classification, two others are important to Plaintiff’s case: A- 16 Yard, which is a “Level 3 general population” yard, and B-Yard, which is a “Level 3 17 Sensitive Needs Yard (SNY) or protective custody prison area.” (See id.) 18 Plaintiff’s claims arise out of Defendants’ implementation of a program to integrate 19 sensitive needs and general population yards into merged yards, referred to by the CDCR 20 as “non-designated programming facilities.” (See id., at ¶ 5, 10; see also ECF No. 28, at 21 Ex. 1 (frequently asked questions document from CDCR discussing non-designated 22 programming facilities).) Plaintiff claims that these non-designated programming facilities 23 “mix[] sensitive needs and general population inmates together under the pretext of adding 24 rehabilitative programs for inmates,” but have in fact resulted in “riots, violence and 25 death.” (See FAC ¶¶ 11, 16.) 26 Plaintiff alleges that he was raped by “his assigned or ‘integrated’ cellmate” shortly 27 after his placement in C-Yard in late 2017. (See id.) After reporting the rape, Plaintiff 28 alleges he was “rewarded with a placement into administrative segregation (ad seg) on B- 1 yard [as] a purely punitive housing assignment.” (See id.) Shortly thereafter, Plaintiff was 2 “confronted with an Institutional Classification Committee (ICC) and instructed to move 3 to A-Yard prison, a general population Level 3 prison.” (See id.) After Plaintiff refused 4 to be transferred to A-Yard on the advice of his treating psychologist, he was assigned to 5 Unit 9 of B-Yard, a Level 3 sensitive needs yard facility. (See id.) Plaintiff alleges that 6 the portion of B-Yard to which he was assigned “has not had riots, or any other major 7 disturbances” and has “little if any gang related problems” since his assignment there. (See 8 id. at ¶ 13.) Nevertheless, “[s]ince ‘Integration’ commenced . . . because of the problems 9 on other yards . . . B-Yard Units 8, 9 and 10 have received virtually no ‘programming’ . . . 10 in the last seven (7) months.” (See id.) Additionally, “Plaintiff and all of his Unit 9 fellow 11 prisoners have been on an unjustifiable lock-down for at least 5 weeks for no reason at all 12 caused by B-Yard prisoners . . . and this lockdown was caused directly as a result of 13 defendants[’] attempts to ‘Integrate’ E, D, and C-Yards, as well as a major riot on A- 14 Yard . . . .” (Id. ¶ 14.) 15 Plaintiff received a citation for violating prison rules by refusing to be assigned to 16 A-Yard. (See id. ¶ 16.) Defendant Chat presented Plaintiff with the citation, called a “Rule 17 Violation Report” or “RVR.” (See id.) Plaintiff was found guilty of the violation in a 18 hearing before Defendant Lieutenant Rodriguez “that had been delivered by Defendant 19 Hough.” (See id.) An investigative officer and staff assistant were provided to assist in 20 Plaintiff’s defense at this hearing, but refused to ask the questions Plaintiff suggested as 21 they were “irrelevant to the proceeding . . . .” (See id.) 22 The First Amended Complaint alleges that Defendants Kernan and Diaz, the former 23 and current Secretary of CDCR, adopted the integration policy, and knew or should have 24 known that this policy “would cause others to inflict on Plaintiff the constitutional injuries 25 alleged herein . . . .” (Id. ¶ 5.) Defendants Paramo and Covello,1 the former and current 26

27 1 The First Amended Complaint refers to Defendant Covello as “Pat Cavello.” (See FAC ¶ 6.) Defendants 28 1 Warden of RJD, are allegedly “directly responsible for giving the orders at RJD for 2 developing and implementing the ‘Integration’ policies that have resulted in riots . . . and 3 numerous physical and serious injuries sustained by prisoners . . . .” (Id. at ¶ 6 (emphasis 4 omitted).) Plaintiff also alleges that Defendant Paramo “directly participated and signed- 5 off on Plaintiff’s 602 appeals requesting relief from said actions/omissions.” (Id.) 6 Defendants Rodriguez, Hough, Chat, and Jaime are correctional officers who allegedly 7 conspired to place Plaintiff in “punitive solitary confinement” after he reported the rape by 8 his cellmate. (See id. ¶ 7.) Additionally, these Defendants were responsible for the RVR 9 after Plaintiff refused to be transferred to A-Yard. (See id.) Defendants Rodriguez, Hough, 10 Chat, and Jaime also allegedly refused to respond to an administrative grievance Plaintiff 11 filed after the rape occurred. (See id.) Finally, Plaintiff alleges that Jane and John Does 1 12 through 8 are “correctional officers, Associate Wardens, psychologists . . . , or Appeal 13 Coordinators at RJD, and Institutional Classification Committee assembled for Plaintiff’s 14 classification to A-Yard . . . .” (Id. ¶ 8.) 15 Plaintiff seeks a declaration that “Defendant’s [sic] policies and procedures . . . 16 especially the elimination of protective custody units in all California prisons [are] null and 17 void as being extremely dangerous and constitutionally indifferent to its prisoners and 18 Plaintiff’s safety, and mental and medical needs at RJD . . . .” (Id. ¶ 18.) Plaintiff also 19 requests an injunction preventing Defendants from “any attempts at retaliation against both 20 Plaintiff and his legal assistant in any form for the bringing of this lawsuit; no transfers, no 21 status quo alterations of any type, and no punishments of any type or form imposed upon 22

23 Defendant,” (See ECF No. 26, at 2), and refers to him using that spelling throughout their briefing on this 24 Motion. (See, e.g., ECF No. 27, at 10.) Plaintiff also appears to agree that this is the correct spelling of 25 Defendant Covello’s name and uses it in his opposition to Defendants’ Motion. (See ECF No. 36, at 14.) The Court takes judicial notice based on numerous cases in this District that the correct spelling is in fact 26 “Covello,” and DIRECTS the Clerk of the Court to correct the spelling of Defendant Covello’s name in the caption. See, e.g., Al Khafati v. Covello, No. 3:19-cv-01811-LAB-LL, 2019 WL 6683194, at *1 (S.D. 27 Cal. Dec. 5, 2019); Green v. Covello, No. 3:19-cv-1747-JAH-MSB, 2019 WL 6683196, at *1 (S.D. Cal. Dec. 6, 2019). 28 1 them for any reason without notice and a hearing” before the Court. (See id.) Separately, 2 Plaintiff seeks an injunction barring the CDCR from implementing its integration policy 3 “against Plaintiff or any other prisoner at any time.” (See id. at Prayer for Relief ¶ 2.) 4 Plaintiff requests $5 million in compensatory damages and $5 million in punitive damages. 5 (See id. ¶¶ 3-4.) Defendants, with the exception of Defendants Paramo and Covello, are 6 sued in both their official and individual capacities. (See id. ¶¶ 5-8.) 7 B. Procedural History 8 Plaintiff filed his initial Complaint and motion to proceed IFP in this case on March 9 29, 2019. (See ECF No. 1, 2.) Plaintiff simultaneously filed a motion for preliminary 10 injunction. (See ECF No. 5.) The Court granted Plaintiff’s motion to proceed IFP and 11 dismissed his initial Complaint sua sponte pursuant to 28 U.S.C. Sections 1915(e)(2)(B) 12 and 1915A, concluding that Plaintiff failed to state a claim for which relief may be granted, 13 and granted leave to amend to cure the deficiencies identified. (See ECF No. 6, at 5-9, 12.) 14 The Court also denied Plaintiff’s motion for preliminary injunction. (See id. at 10-11.) 15 Plaintiff subsequently filed the First Amended Complaint and a second motion for 16 preliminary injunction. (See generally FAC; ECF No. 12.) In reviewing Plaintiff’s First 17 Amended Complaint pursuant to 28 U.S.C. Sections 1915(e)(2) and 1915A, the Court 18 dismissed claims against Defendants M. Voong and Lobenstein for failure to state a claim. 19 (See ECF No. 13, at 4.) The Court found, however, that Plaintiff’s First Amended 20 Complaint “contain[ed] First and Eighth Amendment allegations against the remaining 21 Defendants sufficient to survive the ‘low threshold’ for proceeding past the sua sponte 22 screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b). (See id. at 5.) Accordingly, 23 the Court directed the U.S. Marshal’s service to effect service on Plaintiff’s behalf. (See 24 id. at 5.) The Court further denied Plaintiff’s second motion for preliminary injunction 25 without prejudice. (See id. at 6.) 26 Plaintiff filed a third motion for preliminary injunction, which the Court denied on 27 June 23, 2020. (See ECF No. 39.) Among other things, the Court found that Plaintiff failed 28 to establish a likelihood of success on the merits of his Eighth Amendment claim based on 1 Defendants’ implementation of the integration program. (See id. at 5.) As the Court 2 observed, “there is compelling evidence demonstrating that the program was not 3 implemented with ‘deliberate indifference’ or with a ‘sufficiently culpable mind’ necessary 4 for a viable Eighth Amendment Claim.” (See id.) The Court made similar findings with 5 respect to Plaintiff’s Eighth Amendment claim stemming from the alleged rape by his 6 cellmate, noting that “[n]othing in the case files made it apparent to Defendants that 7 [Plaintiff and his cellmate] could not be safely housed together,” and that “once this was 8 reported, Defendants promptly took remedial action, and placed Plaintiff in administrative 9 segregation for his safety while the incident was being investigated. (See id. at 5-6.) 10 II. Legal Standard 11 Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss 12 on the grounds that a complaint “fail[s] to state a claim upon which relief can be granted.” 13 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal 14 sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001); Bryan v. City 15 of Carlsbad, 207 F. Supp. 3d 1107, 1114 (S.D. Cal. Mar. 20, 2018). 16 Because Rule 12(b)(6) focuses on the “sufficiency” of a claim rather than the claim’s 17 substantive merits, “a court may [ordinarily] look only at the face of the complaint to decide 18 a motion to dismiss,” Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th 19 Cir. 2002), including the exhibits attached to it. See Fed. R. Civ. P. 10(c) (“A copy of a 20 written instrument that is an exhibit to a pleading is a part of the pleading for all 21 purposes.”); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 22 n.19 (9th Cir. 1990) (citing Amfac Mortg. Corp. v. Ariz. Mall of Tempe, Inc., 583 F.2d 426 23 (9th Cir. 1978) (“[M]aterial which is properly submitted as part of the complaint may be 24 considered” in ruling on a Rule 12(b)(6) motion to dismiss.) However, exhibits that 25 contradict the claims in a complaint may fatally undermine the complaint’s allegations. See 26 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (a plaintiff can “plead 27 himself out of a claim by including . . . details contrary to his claims.”) (citing Steckman v. 28 Hart Brewing, Inc., 143 F.3d 1293, 1295-96 (9th Cir. 1998) (courts “are not required to 1 accept as true conclusory allegations which are contradicted by documents referred to in 2 the complaint.”))); see also Nat’l Assoc. for the Advancement of Psychoanalysis v. Cal. Bd. 3 of Psychology, 228 F.3d 1043, 1049 (9th Cir. 2000) (courts “may consider facts contained 4 in documents attached to the complaint” to determining whether the complaint states a 5 claim for relief). 6 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 7 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 8 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); 9 Villa v. Maricopa Cnty., 865 F.3d 1224, 1228-29 (9th Cir. 2017). A claim is facially 10 plausible “when the plaintiff pleads factual content that allows the court to draw the 11 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 12 U.S. at 678. Plausibility requires pleading facts, as opposed to conclusory allegations or 13 the “formulaic recitation of the elements of a cause of action,” Twombly, 550 U.S. at 555, 14 which rise above the mere conceivability or possibility of unlawful conduct. Iqbal, 556 15 U.S. at 678-79; Somers v. Apple, Inc., 729 F.3d 953, 959-60 (9th Cir. 2013). “Threadbare 16 recitals of the elements of a cause of action, supported by mere conclusory statements, do 17 not suffice.” Iqbal, 556 U.S. at 678. While a pleading “does not require ‘detailed factual 18 allegations,’” Rule 8 nevertheless “demands more than an unadorned, the defendant- 19 unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 20 555). 21 Therefore, “[f]actual allegations must be enough to raise a right to relief above the 22 speculative level.” Twombly, 550 U.S. at 555. “Where a complaint pleads facts that are 23 merely consistent with a defendant’s liability, it stops short of the line between possibility 24 and plausibility of entitlement to relief.” Iqbal, 556 U.S. at 678 (citation and quotes 25 omitted); accord Lacey v. Maricopa Cnty., 693 F.3d 896, 911 (9th Cir. 2012) (en banc). 26 “In sum, for a complaint to survive a motion to dismiss, the non-conclusory ‘factual 27 content,’ and reasonable inferences [drawn] from that content, must be plausibly suggestive 28 of a claim entitling the plaintiff to relief.” Moss v. United States Secret Serv., 572 F.3d 962, 1 969 (9th Cir. 2009) (quoting Iqbal, 556 U.S. at 678). 2 III. Discussion 3 To state a claim under 42 U.S.C. Section 1983, a plaintiff must allege two essential 4 elements: (1) that a right secured by the Constitution or laws of the United States was 5 violated, and (2) that the alleged violation was committed by a person acting under the 6 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030, 7 1035-36 (9th Cir. 2015). 8 Plaintiff’s claims fall into three categories. First, he alleges that Defendants Kernan, 9 Diaz, Paramo, and Covello were, in various ways, deliberately indifferent to Plaintiff’s 10 safety in violation of the Eighth Amendment. (See FAC ¶¶ 5-6, 11, 16.) Second, Plaintiff 11 contends that Defendants Rodriguez, Hough, Chat, and Jaime retaliated against Plaintiff 12 “when he exercised his First Amendment right to seek access to the prison legal system to 13 file grievances after he had been assaulted and raped . . . .” (See id. ¶ 7.) Finally, Plaintiff 14 alleges that Defendants Rodriguez, Hough, Chat, and Jaime violated his due process rights 15 during his disciplinary hearing. (Compare id. ¶ 16 (listing Defendants Rodriguez, Hough, 16 and Chat as being involved in his disciplinary proceedings), with, ECF No. 36, at 17 17 (suggesting that in addition to Defendants Rodriguez, Hough, and Chat, Defendant Jaime 18 was involved in the alleged due process violations as well).) The Court will address each 19 claim in turn.2 20 A. Eighth Amendment 21 Plaintiff focuses his claims against Defendants Kernan, Diaz, Paramo, and Covello 22 on alleged violations of the Eighth Amendment, specifically these Defendants’ alleged 23 “deliberate indifference” to Plaintiff’s safety in adopting and implementing the integration 24

25 26 2 In their motion to dismiss, Defendants also argued that any damages claims asserted against Defendants in their official capacities should be dismissed as barred by the Eleventh Amendment and the language of 27 42 U.S.C. Section 1983. (See ECF No. 27, at 25 (citing Will v. Mich Dep’t of State Police, 491 U.S. 58, 70-71 (1989).) Plaintiff clarifies in his opposition that he pursues only injunctive relief through his official 28 1 policy. (See FAC ¶¶ 5-6, 13-16.) These Defendants’ actions fall into two categories: (1) 2 Kernan and Diaz’s alleged development of the integration policy as the former and current 3 Secretary of the CDCR, and (2) Paramo and Covello’s alleged implementation of that 4 policy at RJD in their roles as the former and current Warden of the prison. (See id. ¶¶ 5- 5 6.) Each pair will be addressed separately. 6 1. Defendants Kernan and Diaz 7 Defendants Kernan and Diaz are, as mentioned previously, the past and present 8 Secretary of the CDCR. (See FAC ¶ 5.) Plaintiff alleges that they had “direct personal 9 participation in the development of ‘Integration’ and set[] in motion a series of acts by 10 other named defendants which both Kernan and Diaz knew or reasonably should have 11 known would cause others to inflict on Plaintiff the constitutional injuries alleged 12 herein . . . .” (See id.) The integration policy allegedly “eliminated all safety and 13 protection of approximately 22% of at least 130,000 prisoners such as Plaintiff who have 14 been convicted of a sexual crime, gave testimony against another, is small and weak, told 15 on somebody in prison, rejected a gang affiliation, or who are mentally ill and/or medically, 16 or physically handicapped.” (Id.) Plaintiff alleges that the adoption of this policy has led 17 to numerous riots and the related lockdown of Plaintiff and his housing unit. (See id. ¶ 14.) 18 Additionally, Plaintiff alleges that he was raped “as a direct result of Defendants’ 19 ‘Integration’ scheme . . . .” (Id. ¶ 15; see also id. ¶ 16 (alleging that Plaintiff was “forcefully 20 raped by his assigned or ‘integrated’ cellmate” in 2017).) 21 “‘[P]rison officials have a duty . . . to protect prisoners from violence at the hands of 22 other prisoners.’” Farmer v. Brennan, 511 U.S. 825, 833 (1994) (quoting Cortes-Quinones 23 v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir. 1988)). “The failure of prison officials 24 to protect inmates from attacks by other inmates may rise to the level of an Eighth 25 Amendment violation when: (1) the deprivation is ‘objectively, sufficiently serious’ and 26 (2) the prison officials had a ‘sufficiently culpable state of mind,’ acting with deliberate 27 indifference.” Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005) (quoting Farmer, 28 511 U.S. at 834). The second prong of this test is subjective, and “the official must both 1 be aware of facts from which the inference could be drawn that a substantial risk of serious 2 harm exists, and he must also draw the inference.” See Farmer, 511 U.S. at 837. 3 “‘Deliberate indifference entails something more than mere negligence but is satisfied by 4 something less than acts or omissions for the very purpose of causing harm or with 5 knowledge that harm will result.’” Hearns, 413 F.3d at 1040 (quoting Farmer, 511 U.S. 6 at 835) (internal alterations omitted)). “[A]n official’s failure to alleviate a significant risk 7 that he should have perceived but did not, while no cause for commendation, cannot under 8 [the Supreme Court’s] cases be condemned as the infliction of punishment.” Farmer, 511 9 U.S. at 838. 10 As Defendants rightly point out, Diaz and Kernan cannot be held liable simply by 11 virtue of their supervisory roles within the CDCR. This is because there is no respondeat 12 superior liability under Section 1983. See Iqbal, 556 U.S. at 676 (“Government officials 13 may not be held liable for the unconstitutional conduct of their subordinates under a theory 14 of respondeat superior.” (emphasis in original)). As a result, in order to state a claim 15 against Diaz and Kernan, Plaintiff must allege their “‘personal involvement in the 16 constitutional deprivation’” or “‘a sufficient causal connection between the supervisor’s 17 wrongful conduct and the constitutional violation.’” See Jones v. Williams, 297 F.3d 930, 18 934 (9th Cir. 2002) (quoting Redman v. Cnty. of San Diego, 942 F.2d 1435, 1446 (9th Cir. 19 1991) (en banc), abrogated on other grounds by Farmer, 511 U.S. at 837). 20 Plaintiff’s claims focus on Defendants Diaz and Kernan’s adoption of a policy—the 21 integration of general population and sensitive needs yards prisoners into merged, non- 22 designated programming facilities. (See FAC ¶ 5.) According to Plaintiff “their causal 23 connection to Plaintiff’s injuries is established with their direct personal participation in 24 the development of ‘Integration’ and by setting in motion a series of acts by other named 25 defendants which both Kernan and Diaz knew or reasonably should have known would 26 cause others to inflict on Plaintiff the constitutional injuries alleged herein . . . .” (Id.) 27 Plaintiff does not specify how Kernan or Diaz “set[] in motion” those acts by other named 28 Defendants, nor does he allege that either Defendant was involved in assigning Plaintiff or 1 his cellmate to an integrated yard or had any reason to believe that Plaintiff’s cellmate 2 posed a danger to Plaintiff. As a result, Plaintiff has not alleged that Kernan or Diaz 3 “kn[ew] of and disregard[ed] an excessive risk to [Plaintiff’s] health or safety,” or that 4 Kernan or Diaz were both “aware of facts from which the inference could be drawn that a 5 substantial risk of serious harm exist[ed], and . . . also dr[e]w the inference.” See Farmer, 6 511 U.S. at 837. Nevertheless, these Defendants may be held liable “even without overt 7 personal participation in the offensive act if [they] implement[ed] a policy so deficient that 8 the policy itself is a repudiation of constitutional rights and is the moving force of a 9 constitutional violation.” See Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013) 10 (citing Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (internal quotation marks 11 omitted)). 12 A recent case in this district, Montalvo v. Diaz, No. 3:19-cv-00363-CAB-JLB, 2020 13 WL 3469365 (S.D. Cal. June 25, 2020) confronted a similar claim against two CDCR 14 officials alleged to be responsible for the adoption and implementation of the integration 15 policy. In that case, the plaintiff alleged that he was assigned to two integrated yards at 16 RJD where he was assaulted by inmates formerly assigned to sensitive needs yards. See 17 id. at *2. According to the plaintiff in Montalvo, two CDCR officials, Diaz and Kathleen 18 Allison, the Director of the CDCR’s Division of Adult Institutions, authored a 19 memorandum announcing the expansion of integrated facilities and spearheaded its 20 adoption even though “such [integrations] have always resulted in violence when they have 21 been attempted in the past.” See id. at *7. Despite these allegations, the Montalvo Court 22 dismissed Plaintiff’s claims against the CDCR officials, concluding that these allegations 23 were conclusory and did not demonstrate that the integration policy was “‘so deficient that 24 the policy itself is a repudiation of constitutional rights and [was] the moving force of the 25 constitutional violation.’” Id. at *6 (quoting Hansen, 885 F.2d at 646); see also Mendez v. 26 Diaz, No. 1:19-cv-01759-NONE-BAM (PC), 2020 WL 1974231, at *5 (E.D. Cal. Apr. 24, 27 2020) (dismissing similar claims in part because “Plaintiff has not alleged any facts 28 demonstrating that implementation of the [integration] policy would always violate the 1 Eighth Amendment, no matter which . . . inmates . . . or yards the policy was applied to.”). 2 In so doing, the Court relied on a CDCR memorandum, incorporated by reference in the 3 plaintiff’s complaint, which explained “that the [integration of general population and 4 sensitive needs yard inmates was] limited to ‘inmates demonstrating positive programming 5 efforts and a desire not to get involved in the destructive cycles of violence,’ and that in 6 order to be placed [in integrated yards], inmates must be ‘advised of programming 7 expectations and positive programming reasoning . . . .’” Montalvo, 2020 WL 3469365, at 8 *6. 9 Although Plaintiff’s allegations are superficially distinct from those in Montalvo, the 10 same conclusion is required in this case. Plaintiff repeatedly asserts in conclusory terms 11 that the integration policy is “insane,” “pretext[ual],” ”includes an unconstitutional[ly] 12 excessive amount of violence, riots and death,” and a “fiasco . . . being imposed on 13 California prisoners.” (See FAC ¶¶ 5, 11, 13.) But stripping away these “‘labels and 14 conclusions,’” as well as “‘formulaic recitation[s] of the elements of a cause of 15 action . . . ,’” see Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555), like Plaintiff’s 16 allegation that “Kernan and Diaz knew or reasonably should have known [that integration] 17 would cause others to” injure Plaintiff, nothing is left to suggest that Kernan and Diaz were 18 aware that inmates like Plaintiff would be attacked as a result of the integration policy, or 19 that the policy categorically violates the Eighth Amendment. (See FAC ¶ 5.) At best, 20 Plaintiff’s First Amended Complaint alleges that the integration policy violates the Eighth 21 Amendment because Plaintiff was assaulted by his cellmate and because riots, assaults, 22 and other violence have occurred since the implementation of the policy.3 But “not . . . 23

24 25 3 Although Plaintiff alleges that there have been numerous incidents of rioting and violence since “December, 2017,” (see FAC ¶ 14), he does not allege that these incidents occurred before the rape. (See 26 id. ¶ 10 (alleging that Plaintiff was raped in “late 2017”); see also id. ¶ 16 (suggesting that the rape incident occurred in or around late December 2017).) As a result, the subsequent riots and instances of violence 27 shed little or no light on Defendants’ knowledge of the risks of harm inherent in adopting the policy, since neither Diaz nor Kernan would have been aware of them at the time the policy was adopted and 28 1 every injury suffered by one prisoner at the hands of another . . . translates into 2 constitutional liability for prison officials responsible for the victim’s safety.” See Farmer, 3 511 U.S. at 833. 4 The Ninth Circuit’s decision in Byerly v. Deputy Warden, 246 F. App’x 512 (9th Cir. 5 2007) further illustrates the issues with Plaintiff’s claim against Defendants Diaz and 6 Kernan. Byerly involved a claim against the Acting Director of the Arizona Department 7 of Corrections for injuries the plaintiff, a convicted sex offender, suffered after his arrival 8 in prison. Id. at 513. The plaintiff alleged that the Acting Director had implemented a 9 policy that “indiscriminately plac[ed] unclassified inmates together with those truly in need 10 of protection during an initial evaluation period,” which led to an attack on Plaintiff, 11 violating his Eighth Amendment rights. See id. The Ninth Circuit affirmed the district 12 court’s grant of summary judgment for the Assistant Director, noting that the Director’s 13 “awareness of the likelihood of an attack on [the plaintiff] is severely limited because, as 14 Acting Director of Corrections for the entire state of Arizona, she never had any actual 15 contact with [the plaintiff].” Id. at 514. The Ninth Circuit then analyzed whether the policy 16 under which the plaintiff was housed was “‘so deficient that the policy itself is a repudiation 17 of constitutional rights,’” concluding that Plaintiff’s allegations fell “far short of th[at] 18 hurdle” Id. at 514-15 (quoting Redman, 942 F.2d at 1446). The Court noted that there was 19 no allegation “that [the Acting Director] herself actually knew or reasonably should have 20 known that inmates like [the plaintiff] would be subject to attack during the initial 21 evaluation period,” and rejected the claim that her thirty years of experience as a 22 corrections officer would make deficiencies in the policy obvious. See id. at 515. 23 Additionally, the Byerly Court noted that the prison “had a set procedure in place to attempt 24

25 26 both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.”); see also Jackson v. Paramo, No. 17CV882-CAB (BLM), 27 2018 WL 4952596, at *7 (S.D. Cal. Oct. 12, 2018) (noting that evidence submitted and reviewed by warden during inmate appeals after an alleged incident did not show that warden “knew or should have 28 1 to provide inmates with protective segregation” as needed. Id. at 515. 2 Like in Byerly, neither Diaz nor Kernan is alleged to have had any contact with 3 Plaintiff. See id. at 514. The only support Plaintiff provides for his view that Diaz and 4 Kernan should have known Plaintiff would be attacked by his cellmate is the conclusory 5 allegation that they “knew or reasonably should have known [that the integration policy] 6 would cause others to inflict” harms on Plaintiff, and the fact that such harm eventually 7 occurred. (See FAC ¶ 5.) Plaintiff does not allege similar instances of rape or other 8 violence that predate the attack by his cellmate that may have put Diaz or Kernan on notice 9 that the integration policy was constitutionally deficient. Although Plaintiff alleges that 10 the integration policy “eliminated all safety and protection of approximately 22% of at least 11 130,000 prisoners such as Plaintiff,” this conclusion is belied by Appendix A to Plaintiff’s 12 First Amended Complaint, which includes quotations from a CDCR frequently asked 13 questions document regarding the integration policy, along with responsive allegations by 14 Plaintiff. (See FAC, App’x A.) Defendants attach the underlying frequently asked 15 questions document to their Motion and ask that the Court take judicial notice of its 16 contents. (See ECF No. 27, at 15; see also id. Ex. 1.) Plaintiff does not object to that 17 request, which is GRANTED. See Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) 18 (explaining that incorporation by reference is appropriate for “documents whose contents 19 are alleged in the complaint and whose authenticity no party questions, but which are not 20 physically attached to [the plaintiff’s] pleadings.”). The document makes clear that 21 assignment to integrated facilities is limited to “inmates demonstrating positive 22 programming and a desire to not get involved in the destructive cycles of violence and 23 criminal activity/thinking,” and that inmates assigned to integrated facilities that “engage 24 in violent or threatening behavior towards other inmates housed in an [integrated facility]” 25 are subject to disciplinary sanctions and inmates with “enemy concerns” may be 26 transferred. (See ECF No. 27, Ex. 1, at 28, 30.) 27 Taking Plaintiff’s factual allegations in response to the frequently asked questions 28 document as true, as the Court must at this stage, they still do not demonstrate that 1 Defendants’ integration policy is unconstitutional. For example, although Plaintiff alleges 2 that programming opportunities have not increased as a result of this policy, that some 3 inmates refuse to program, and that violence has increased, he does not allege the criteria 4 the CDCR set forth for placement in integrated facilities is inaccurate. (See generally FAC 5 App’x A, at 16-19.) Similarly, although Plaintiff asserts that the CDCR’s statements about 6 disciplinary sanctions and transfer for inmates who have enemy concerns are “outright 7 lie[s],” all he alleges in support of this conclusory statement is that violence occurs in 8 integrated facilities and that the CDCR “could care less about administrative or even more 9 criminal sanctions.” (See id. at 17-18.) These allegations, like those contained in the body 10 of Plaintiff’s First Amended Complaint, fail to demonstrate that Defendants’ integration 11 policy would always violate the Eighth Amendment. See Montalvo, 2020 WL 3469365, at 12 *6 (citing a different CDCR memorandum containing similar information incorporated by 13 reference into the complaint and noting that the memorandum undermined allegations that 14 the integration policy was “‘itself . . . a repudiation of constitutional rights’ and . . . ‘the 15 moving force of the constitutional violation.’” (quoting Hansen, 885 F.2d at 646)); 16 Mendez, 2020 WL 1974231, at *5 (“Plaintiff has not alleged any facts demonstrating that 17 implementation of the [non-designated programming facilities] policy would always 18 violate the Eighth Amendment, no matter which . . . inmates . . . or yards the policy was 19 applied to.”); see also Jackson, 2018 WL 4952596, at *7 & n.1 (noting that allegations of 20 deliberate indifference were “undercut” by exhibits Plaintiff submitted in connection with 21 his second amended complaint and discussing the propriety of considering such documents 22 and documents incorporated by reference in the pleadings in ruling on a motion to dismiss). 23 As a result, Plaintiff does not state a claim against Defendants Diaz or Kernan based on 24 supervisory liability. 25 For the reasons set forth above, Plaintiff’s First Amended Complaint does not state 26 an Eighth Amendment claim against Defendants Diaz or Kernan. Accordingly, 27 Defendants’ motion to dismiss these claims is GRANTED. 28 2. Defendants Paramo and Covello 1 Plaintiff also alleges that Defendants Paramo and Covello, the past and present 2 wardens of RJD, “are directly responsible for giving the orders at RJD for developing and 3 implementing the ‘Integration’ policies that have resulted in riots (8 of them since 4 December, 2017 and numerous physical and serious injuries sustained by their 5 prisoners . . . .” (FAC ¶ 6 (emphasis in original).) Plaintiff also alleges that Defendant 6 Paramo “directly participated in and signed-off on Plaintiff’s 602 appeals requesting relief 7 from said actions/omissions.” (See id.) In addition to these actions, which Plaintiff alleges 8 led to him being raped by his “assigned or ‘integrated’ cellmate,” Plaintiff notes that he 9 and his fellow prisoners in B-Yard “have been on unjustifiable lock-down for at least 5 10 weeks for no reason at all caused by B-Yard prisoners,” and that the lockdown is instead 11 the result of “defendants[’] attempts to ‘Integrate’ E, D, and C-Yards, as well as a major 12 riot on A-Yard . . . .” (See FAC ¶¶ 14, 16.) In Plaintiff’s view, when taken in the aggregate, 13 these alleged actions violate his Eighth Amendment rights and demonstrate deliberate 14 indifference on the parts of Defendants Paramo and Covello. (See ECF No. 36, at 15-16.) 15 Defendants argue that these allegations do not demonstrate deliberate indifference 16 on the part of either individual. (See ECF No. 27, at 16-18.) As Defendants point out, the 17 First Amended Complaint does not allege any facts suggesting that Defendants Paramo or 18 Covello were aware that Plaintiff’s cellmate posed a risk to Plaintiff, or that either 19 Defendant was involved in the housing assignment of Plaintiff or his cellmate. (See id.) 20 Additionally, with respect to the allegation that Paramo “signed-off on Plaintiff’s 602 21 appeals,” (FAC ¶ 6), Defendants note that Plaintiff does not allege “that the 602 appeals . . . 22 related to any concern Plaintiff communicated about his cellmate before the rape, which 23 would have alerted Paramo to any safety concern.” (See ECF No. 27, at 17.) Finally, 24 Defendants argue that Plaintiff’s placement in segregation and reassignment to B-Yard, as 25 well as the subsequent lockdowns of various parts of RJD,4 do not demonstrate deliberate 26

27 4 Defendants argued in their Motion that Plaintiff failed to state a claim predicated on the lockdowns 28 1 indifference either, since those actions were taken to address the danger to Plaintiff by his 2 cellmate and prison-wide safety issues, respectively. (See id. at 17-18.) 3 Plaintiff’s allegations, taken as true, fail to state a claim against Defendants Paramo 4 or Covello based on the integration policy. Plaintiff does not allege that Paramo or Covello 5 were responsible for the assignment of Plaintiff or his cellmate to C-Yard, let alone that 6 either warden had reason to believe that Plaintiff would be attacked there. (See FAC ¶ 6.) 7 As a result, Plaintiff has not demonstrated that either “official [was] aware of facts from 8 which the inference could be drawn that a substantial risk of serious harm exist[ed], and . . . 9 also dr[e]w the inference.” See Farmer, 511 U.S. at 837. Additionally, any liability for 10 implementing the integration policy fails for similar reasons Plaintiff’s claims against 11 Defendants Diaz and Kernan failed. Although Plaintiff alleges that negative consequences 12 have flowed from the implementation of the integration policy, that does not demonstrate 13 that the “policy [is] so deficient that the policy itself is a repudiation of constitutional rights 14 and is the moving force of the constitutional violation.” See Hansen, 885 F.2d at 646 15 (internal quotation marks and citation omitted); see also Mendez, 2020 WL 1974231, at 16 *2, 4 (dismissing claims against warden predicated on “well-document incidents of 17 violence” in integrated yards as failing to establish “that the policy to merge SNY and GP 18 prisoners on all level 1 and level 2 yards into [integrated yards] is itself a repudiation of 19 Plaintiff’s Eighth Amendment rights.”). On the contrary, and as explained previously, 20 Exhibit A to Plaintiff’s First Amended Complaint and the frequently asked questions 21 document that it incorporates by reference demonstrate that placement in integrated yards 22 is limited to “inmates that demonstrate positive programming, regardless of prior Sensitive 23

24 25 17-18.) Plaintiff clarifies in his opposition that “[t]he lockdowns were simply residual effects of Paramo and Covellos’ [sic] implementation and promulgation at RJD of Diaz and Kernans’ [sic] ‘integration’ 26 policies on other yards of RJD, not B-Yard.” (See ECF No. 36, at 16.) Thus, Plaintiff appears to argue that the lockdowns are relevant only to the extent they show that the integration policy itself is 27 unconstitutional, and he only presses claims against Defendants Paramo and Covello based on their involvement in implementing that policy at RJD, not separately based on the other remedial actions taken 28 1 Needs Yard (SNY) or General Population (GP) designation,” and that inmates assigned to 2 integrated yards who engage in violent behavior are subject to disciplinary sanctions or 3 transfer. (See ECF No. 27, at 28, 30.) Although Plaintiff asserts that the CDCR’s 4 statements in this document are “outright lie[s]” and that integration was implemented “to 5 create chaos and havoc,” (See FAC at 17-18), these assertions, and much of the other 6 information he includes in Exhibit A to his First Amended Complaint is vague and 7 conclusory and falls short of demonstrating that the policy categorically violates the Eighth 8 Amendment. See Berg v. Klincheloe, 794 F.2d 457, 459 (9th Cir. 1987) (“The Supreme 9 Court has stated that deference to the decisions of prison officials also extends to 10 prophylactic or preventive measures intended to reduce the incidents of . . . breaches of 11 prison discipline.”). Additionally, Plaintiff’s claim that Defendant Paramo “directly 12 participated and signed-off on Plaintiff’s 602 appeals requesting relief from said 13 actions/omissions” is too vague to state a plausible claim for relief. See Iqbal, 556 U.S. at 14 678 (explaining that “more than unadorned, the-defendant-unlawfully-harmed-me 15 accusation[s]” are required to survive a motion to dismiss (citing Twombly, 550 U.S. at 16 555)). 17 Accordingly, Defendants’ motion to dismiss Plaintiff’s Eighth Amendment claims 18 against Defendants Paramo and Covello is GRANTED. 19 B. First Amendment 20 Plaintiff next alleges that Defendants Rodriguez, Hough, Chat, and Jaime “along 21 with Jane and John Does 1 through 8,” retaliated against him by placing him in “punitive 22 segregated confinement after reporting the fact that he was being raped” by his cellmate. 23 (FAC ¶ 7; see also id. ¶ 10 (referring to the placement into administrative segregation as 24 “purely punitive . . . .”).) Shortly thereafter, Plaintiff appeared before the institutional 25 classification committee, which directed him to be moved to A-Yard. (See id. ¶ 16.) After 26 Plaintiff refused the housing reassignment, he received an RVR. (Id.) Plaintiff alleges that 27 this RVR was further retaliation for his reporting regarding the rape. (See id. ¶ 7.) Finally, 28 Plaintiff alleges that when he filed a grievance related to the rape, the grievance was 1 returned to him unadjudicated. (See id.) 2 To state a claim for retaliation in violation of the First Amendment, Plaintiff must 3 allege that: (1) he was subject to “adverse action” by a state actor, (2) because he engaged 4 in (3) “protected conduct,” and (4) that the adverse action “chilled [his] exercise of his First 5 Amendment rights,” and (5) “the action did not reasonably advance a legitimate 6 correctional goal.” See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (citing 7 Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000); Barnett v. Centoni, 31 F.3d 813, 815- 8 16 (9th Cir. 1994)). Protected conduct includes filing prison grievances or litigation against 9 prison officials. See id. at 568. In order to demonstrate that the adverse action was 10 “because of” Plaintiff’s protected conduct, he must allege that “his protected conduct was 11 ‘the substantial or motivating factor behind the defendant’s conduct.’” See Brodheim v. 12 Cry, 584 F.3d 1262, 1271 (9th Cir. 2009) (quoting Soranno’s Gasco, Inc. v. Morgan, 874 13 F.2d 1310, 1314 (9th Cir. 1989)). Additionally, to allege that the adverse action did not 14 “‘advance legitimate goals of the correctional institution,’” Plaintiff must allege “in 15 addition to a retaliatory motive, that the defendant’s actions were arbitrary and capricious, 16 or that they were ‘unnecessary to the maintenance of order in the institution . . . .’” Watison 17 v. Carter, 668 F.3d 1108, 1114-15 (quoting Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 18 1985); Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir. 1984) (internal citations 19 omitted)). 20 Defendants argue that Plaintiff has not alleged a retaliatory motive or the absence of 21 a legitimate correctional goal for the actions Defendants took. Specifically, Defendants 22 argue that Plaintiff cannot allege a retaliation claim based on the placement in 23 administrative segregation following his report regarding the rape by his cellmate because 24 CDCR regulations required Defendants to place Plaintiff in administrative segregation at 25 that point. (See ECF No. 27, at 19 (citing 15 Cal. Code Reg. § 3335).) Defendants’ 26 argument is similar with respect to the disciplinary charge, which they argue was consistent 27 with prison regulations. (See ECF No. 27, at 20; see also id. at Ex. 1 ¶ 6 (frequently asked 28 questions document from CDCR incorporated by reference in First Amendment Complaint 1 stating that if prisoners refuse to accept placement in non-designated programming 2 facilities, “institution staff shall initiate the disciplinary process for Refusing Assigned 3 Housing.”).) Finally, Defendants argue that Plaintiff has not alleged that “the reasons for 4 screening and returning his inmate appeal were inconsistent with” 15 California Code of 5 Regulations Section 3084.6, which sets forth grounds for rejection of inmate grievances. 6 (See id. at 20 (citing 15 Cal. Code Reg. § 3084.6).) 7 Plaintiff’s response to these arguments is brief and unconvincing. Plaintiff suggests, 8 based on a misreading of the Ninth Circuit’s decision in Rhodes v. Robinson, 408 F.3d 559, 9 567 (9th Cir. 2004), that he “does not need to demonstrate [any] retaliatory motives by 10 these [D]efendants at the pleading stage . . . .” (See ECF No. 36, at 17 (citing Rhodes).) 11 That case, and specifically the language quoted by Plaintiff, does not stand for that 12 proposition or otherwise excuse Plaintiff from pleading the essential elements of his claim. 13 The language Plaintiff quotes relates to a separate element of a retaliation claim—chilling 14 of Plaintiff’s exercise of his First Amendment rights—and clarifies that a plaintiff need not 15 allege a “total chilling” of those rights in order to state a claim of retaliation. See Rhodes, 16 408 F.3d at 567. Defendants do not argue otherwise, and instead correctly assert that 17 Plaintiff has not alleged plausibly a retaliatory motive on the part of Defendants or the 18 absence of a legitimate correctional purpose for their actions, which appear to be consistent 19 with CDCR regulations5 and overarching goals like ensuring Plaintiff’s safety and 20 21 5 Defendants’ briefing twice includes the following quote (or a substantially similar quote): “‘Investigation 22 related to being the victim of a Prison Rape Elimination Act (PREA) incident requires placement in administrative segregation.’” (See ECF No. 27, at 19 (quoting 15 Cal. Code Reg. § 3335(a)(1)(D) (internal 23 alteration omitted)); see also ECF No. 38, at 5 (“‘Investigation related to being a victim of the Prison Rape Eliminary [sic] Act (PREA) incident requires placement in Administrative Segregation [sic].’” (quoting 24 15 Cal Code. Reg. § 3335).) If Section 3335 ever included this language, it does not include it now, 25 instead stating in relevant part that “Non Disciplinary Segregation (NDS) means temporary segregated housing placement for administrative reasons to include but are not [sic] limited to: . . . Investigation 26 related to being the victim of a Prison Rape Elimination Act (PREA) incident . . . .” See 15 Cal. Code Reg. § 3335(a)(1), (a)(1)(D). The correct language does not alter the Court’s conclusion—clearly 27 placement in segregated housing following Plaintiff’s allegation that he was raped by his cellmate serves a legitimate penological purpose, and Plaintiff does not plausibly allege otherwise. Nevertheless, the 28 1 maintaining order in the institution. See, e.g., 15 Cal. Code Reg. § 3269(h) (“If an inmate 2 refuses to be housed as determined to be appropriate . . . the inmate shall be subject to the 3 disciplinary process.”); 15 Cal. Code Reg. § 3335(a)(1)(D) (providing for placement in 4 non-disciplinary segregation during an investigation “related to being the victim of a Prison 5 Rape Elimination Act (PREA) incident . . . .”); see also Lucus v. Koenig, 19-07938 BLF 6 (PR), 2020 WL 4193369, at *3 (N.D. Cal. July 21, 2020) (holding that consequences, 7 including placement in administrative segregation, for refusal to be rehoused pursuant to 8 integration policy did not state retaliation claim where CDCR memorandum “clearly 9 indicated that there would be consequences for non-compliance with rehousing . . . .”). 10 Indeed, Plaintiff alleges no motives whatsoever for Defendants’ alleged retaliation. (See 11 generally FAC.) And although the First Amended Complaint suggest that Defendants’ 12 actions did not “advance or further any legitimate penological purposes, [because] 13 Defendants’ ‘Integration’ policy serves no valid penological purpose,” (see id. ¶ 7), that 14 allegation at best pertains only to the RVR for refusing to be assigned to A-Yard, and not 15 Plaintiff’s segregation following the alleged rape or the return of Plaintiff’s grievance, 16 neither of which involved the application of the integration policy. 17 As a result, Defendants’ Motion to Dismiss the First Amendment retaliation claims 18 against Defendants Rodriguez, Hough, Chat, and Jaime is GRANTED. Additionally and 19 for the same reasons, the Court finds that Plaintiff has also failed to allege retaliatory 20 motive and absence of legitimate penological purpose with respect to the retaliation 21 allegations against Jane and John Does 1 through 8. (See id.) Accordingly, these claims 22 are dismissed sua sponte for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B)(ii) 23 (providing that “the court shall dismiss . . . at any time” allegations that “fail[] to state a 24 claim on which relief may be granted . . . .” (emphasis added)). 25 C. Due Process 26 Plaintiff’s final claim pertains, as did part of his First Amendment claim, to the RVR 27 he received for refusing a housing assignment on A-Yard. (See FAC ¶ 16.) As mentioned 28 previously, Plaintiff alleges that after the alleged rape he appeared before the Institutional 1 Classification Committee. (See id.) The Committee instructed Plaintiff to move to A- 2 Yard, “a general population Level 3 prison.” (Id.) Plaintiff refused to move based on his 3 psychologist’s advice that “he would not be safe with all the violent gang members and life 4 termers on that yard.” (Id.) Plaintiff was then issued an RVR which was “delivered” by 5 Defendant Chat. (See id.) “On February 27, 2018, a hearing was held by Defendant Lt. 6 Rodriguez that had been delivered by Defendant Hough.” (Id.) An investigative officer 7 and staff assistant were provided to assist in Plaintiff’s defense, but they refused to ask the 8 questions Plaintiff suggested, concluding that they were “irrelevant to the proceedings.” 9 (See id.) Plaintiff was found guilty of the violation, but does not allege what consequences, 10 if any, he suffered as a result. (See id.) 11 The Fourteenth Amendment provides that “[n]o state shall . . . deprive any person of 12 life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. “The 13 requirements of procedural due process apply only to the deprivation of interests 14 encompassed by the Fourteenth Amendment’s protection of liberty and property.” Bd. of 15 Regents v. Roth, 408 U.S. 564, 569 (1972). “To state a procedural due process claim, [a 16 plaintiff] must allege ‘(1) a liberty or property interest protected by the Constitution; (2) a 17 deprivation of the interest by the government; [and] (3) lack of process.’” Wright v. 18 Riveland, 219 F.3d 905, 913 (9th Cir. 2000) (quoting Portman v. Cnty. of Santa Clara, 995 19 F.2d 898, 904 (9th Cir. 1993)). 20 A prisoner is entitled to certain due process protections when he is charged with a 21 disciplinary violation. Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003) (citing 22 Wolff v. McDonnell, 418 U.S. 539, 564-571 (1974)). “Such protections include the rights 23 to call witnesses, to present documentary evidence and to have a written statement by the 24 fact-finder as to the evidence relied upon and the reasons for the disciplinary action taken.” 25 Id.; see also Wolff, 418 U.S. at 566 (explaining that an inmate must be afforded an 26 opportunity “to call witnesses and present documentary evidence in his or her defense when 27 permitting him to do so will not be unduly hazardous to institutional safety or correctional 28 goals.”). These procedural protections adhere, however, “only when the disciplinary action 1 implicates a protected liberty interest in some ‘unexpected matter’ or imposes an ‘atypical 2 and significant hardship on the inmate in relation to the ordinary incidents of prison life.’” 3 Serrano, 345 F.3d at 1077 (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995); Ramirez 4 v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003)). 5 Defendants argue that Plaintiff’s due process claims should be dismissed because 6 Plaintiff has not alleged the denial of a liberty interest protected by the Constitution. (See 7 ECF No. 27, at 20-21.) “[Plaintiff] alleges neither a credit loss that would affect the 8 duration of his confinement nor some other hardship that is atypical and significant 9 compared to those posed by [the] normal conditions of confinement.” (See id. at 21.) As 10 a result, Defendants conclude, Plaintiff cannot demonstrate that the procedural protections 11 outlined above applied to his RVR proceedings. (See id.) 12 In his opposition brief, Plaintiff outlines the specific credits and privileges he lost as 13 a result of being found guilty of the RVR. (See ECF No. 36, at 17.) These facts do not 14 appear in the First Amended Complaint, and thus are not properly before the Court for 15 purposes of this Motion. See Schneider v. Cal. Dep’t of Corrs., 151 F.3d 1194, 1197 n.1 16 (9th Cir. 1998) (“In determining the propriety of a Rule 12(b)(6) dismissal, a court may not 17 look beyond the complaint to a plaintiff’s moving papers, such as a memorandum in 18 opposition to a defendant’s motion to dismiss.” (emphasis in original) (citations omitted)). 19 In the absence of such allegations, the Court finds that Plaintiff has not alleged that he was 20 a denied a liberty interest that would trigger due process protections. As a result, 21 Defendants’ motion is GRANTED. 22 In closing, the Court notes that if Plaintiff had made such an allegation, his claims 23 against Defendants Hough and Chat for “delivering” the RVR or the hearing would 24 nevertheless fail. (See FAC ¶ 16.) It is unclear what it means to “deliver” an RVR or a 25 hearing, but it is difficult for the Court to imagine a way in which doing so could violate 26 due process, at least based on the facts Plaintiff has asserted to date. Finally, although 27 leave to amend will be granted with respect to this claim, “some evidence” is all that is 28 required to support a disciplinary decision, see Superintendent v. Hill, 472 U.S. 445, 455 1 (1985), and more importantly, some courts have concluded that the loss of good time 2 credits, visitation privileges, or the assessment of points on an inmate’s record may not by 3 themselves constitute atypical and significant hardships. See, e.g., Salinas v. Montgomery, 4 No. 3:19-cv-0744-AJB-RBB, 2019 WL 2191349, at *5 (S.D. Cal. May 21, 2019) (alleging 5 that an inmate was “assessed a good-time credit loss of 90 days” was insufficient to show 6 atypical and significant hardship); Contreras v. Herrera, No. 3:18-cv-00717-MMA-AGS, 7 2018 WL 4961510, at *5 (S.D. Cal. Oct. 15, 2018) (losing visitation privileges for six 8 months is not an atypical and significant hardship); Meeks v. Nevada, No. 3:10-cv-00558- 9 RCJ-RAM, 2011 WL 221774, at *4 (D. Nev. 2011) (adding points to an inmate’s record, 10 even if they made it impossible to transfer to less restrictive prison, are not an atypical and 11 significant hardship). Plaintiff should take these issues into account in evaluating a 12 potential amended pleading. 13 IV. Leave to Amend 14 As mentioned, in light of Plaintiff’s pro se status, the Court grants Plaintiff leave to 15 amend to cure the deficiencies in his claims against Defendants, if he can. See 16 AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 951 (9th Cir. 2006) (“Rule 17 15(a) is very liberal and leave to amend shall be freely given when justice so requires.” 18 (quotation omitted)). 19 Plaintiff’s Second Amended Complaint must be complete in itself, without reference 20 to Plaintiff’s original pleading, and any claims Plaintiff fails to reallege against any of the 21 Defendants will be considered waived. See S.D. Cal. Civ. L.R. 15.1; Lacey, 693 F.3d at 22 928 (noting that claims dismissed with leave to amend that are not re-alleged in an amended 23 pleading may be “considered waived if not repled”); Hal Roach, 896 F.2d at 1546 (“[A]n 24 amended pleading supersedes the original.”). 25 V. Conclusion and Orders 26 Accordingly, the Court: 27 /// 28 /// 1 (1) GRANTS Defendants’ Motion to Dismiss Plaintiff’s claims® (ECF No. 27); 2 (2) GRANTS Plaintiff forty-five (45) days leave to file a Second Amended 3 ||Complaint. If Plaintiff fails to file a Second Amended Complaint within the time provided, 4 Court will enter a final order dismissing this action in its entirety based both on 5 || Plaintiffs failure to state a claim upon which relief can be granted pursuant to Federal Rule 6 || of Civil Procedure 12(b)(6) and his failure to prosecute in compliance with a court order 7 ||requiring amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (‘If a 8 || plaintiff does not take advantage of the opportunity to fix his complaint, a district court 9 ||may convert the dismissal of the complaint into dismissal of the entire action.”’); and 10 (3) DIRECTS the Clerk of Court to correct the spelling of Defendant Covello’s 11 ||name in the caption. 12 IT IS SO ORDERED. 13 || Dated: September 21, 2020 14 Hon. Anthony J Hatta 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 ® Because Plaintiffs claims are dismissed in their entirety for failure to state a claim, the Court need not 27 || address Defendants’ alternative argument that Plaintiff's claims are barred by qualified immunity. See, Aguilera v. Baca, 510 F.3d 1 161, 1167, 1 174 (9th Cir. 2007) (noting that if no constitutional violation occurred the court need not decide whether qualified immunity applies). 25