1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RONALD EARL GADSDEN, Case No.: 3:20-cv-02258-WQH-DEB

12 Plaintiff,

ORDER

13 v. 14 JOHN GEHRIS, Deputy Sheriff; and MICHAEL MCGRATH, Deputy Sheriff, 15 Defendants. 16 17 HAYES, Judge: 18 The matter before the Court is the Motion to Dismiss Plaintiff’s First Amended 19 Complaint (ECF No. 30) filed by Defendant John Gehris. 20 I. PROCEDURAL BACKGROUND 21 On November 19, 2020, Plaintiff Ronald Earl Gadsden filed a civil rights Complaint 22 under 42 U.S.C. § 1983, alleging that Defendants Gehris and Michael McGrath violated 23 Plaintiff’s First Amendment rights by retaliating against him for requesting an Internal 24 Affairs complaint form. (ECF No. 1). 25 On February 19, 2021, Defendant Gehris filed a motion to dismiss Plaintiff’s 26 Complaint for failure to state a claim. (ECF No. 4). On August 3, 2021, the Magistrate 27 Judge issued a Report and Recommendation (“R&R”), recommending that the Court grant 28 Defendant Gehris’ motion to dismiss. (ECF No. 23). On September 2, 2021, the Court 1 issued an Order adopting the R&R and dismissing the claim against Defendant Gehris 2 without prejudice. (ECF No. 26). 3 On October 14, 2021, Plaintiff filed a First Amended Complaint (“FAC”), bringing 4 the same cause of action against both Defendants. (ECF No. 29). On October 28, 2021, 5 Defendant Gehris filed a second Motion to Dismiss Plaintiff’s FAC for failure to state a 6 claim.1 (ECF No. 30). On November 9, 2021, Plaintiff filed a Response in opposition to 7 the motion. (ECF No. 33). On December 6, 2021, Defendant Gehris filed a Reply. (ECF 8 No. 37). 9 II. ALLEGATIONS IN THE FAC 10 Plaintiff was an inmate of the George Bailey Detention Facility (“GBDF”), located 11 in San Diego. Defendants were San Diego County Deputy Sheriffs who worked at GBDF. 12 On February 4, 2019, Plaintiff “handed a piece of legal mail to Defendant [McGrath] for 13 [Defendant McGrath] to sign and transmit to its intended recipient . . . .” (ECF No. 29 ¶ 14 13). The legal mail contained an Internal Affairs complaint form alleging that another 15 officer “had racially profiled [Plaintiff] in an incident” that led to Plaintiff’s arrest. (Id. ¶ 16 14). Defendant McGrath opened, signed, and sealed the mail. “The complaint was 17 delivered to Internal Affairs at 8:22 a.m. on February 15, 2019 . . . .” (Id. ¶ 16). 18 Defendant McGrath subsequently told Plaintiff that a scheduled video visit had been 19 cancelled and declined to provide Plaintiff with an additional Internal Affairs complaint 20 form. “In the hours after this exchange, [Plaintiff’s] cell was locked down” and inmates 21 were instructed to “get the fuck away from [Plaintiff’s] cell.” (Id. ¶¶ 27-28). After Plaintiff 22 told Defendant McGrath that he still wanted a complaint form, Plaintiff “was immediately 23 taken to disciplinary segregation, or ‘the hole.’” (Id. ¶ 30). 24 25 26 27 28 1 On February 15, 2019, Defendant McGrath entered an Incident Report concerning 2 his exchange with Plaintiff.2 (See ECF No. 30-2 at 5-6). The Incident Report states that 3 Plaintiff was in violation of rules and regulations regarding “Disrespect to Staff,” 4 “Boisterous Activity,” and “Interfere[nce] with jail operations” when he repeatedly 5 “demanded [his] cell door be opened,” shouted “let me out now,” and subsequently shouted 6 over the intercom “Fuck this, I need an IA form.” (Id. at 5). The Incident Report indicates 7 that it was updated and approved by “SODELLSH, ODELL.” (Id.). 8 Defendant Gehris served as the “Disciplinary Review Officer” who was “in charge 9 of the operation of ‘the hole.’” (ECF No. 29 ¶ 34). “In his role as Disciplinary Review 10 Officer, [Defendant Gehris] personally approved confining [Plaintiff] in disciplinary 11 segregation.” (Id. ¶ 38). “Because of his role overseeing the operation of ‘the hole,’” 12 Defendant Gehris was aware of San Diego Sheriff Department policies that permit 13 disciplinary segregation only for “major sanctions and/or multiple cumulative offenses”; 14 where “less stringent methods have failed to correct behavior or . . . other methods would 15 be ineffective or inappropriate”; and after the disciplinary action has been approved “by 16 the Disciplinary Review Officer.” (Id. ¶¶ 35-37). 17 Defendant Gehris “came to be aware of the improper basis for [Plaintiff’s] transfer 18 [to disciplinary segregation]” for four reasons. (Id. ¶ 40). First, Defendant Gehris “was 19 made aware of” the Incident Report “that made clear that [Plaintiff] had not engaged in any 20 serious misbehavior of the sort that would justify the use of disciplinary segregation, 21 according to the [Sheriff Department policies],” because [Defendant Gehris] “was the 22 Disciplinary Review Officer and thus had the responsibility for approving [Plaintiff’s] 23

24 25 2 Defendant Gehris requests that the Court take judicial notice of the records in the related case of Gadsden v. County of San Diego, 3:20-cv-00470-WQH-DEB, specifically the Incident Report attached to the 26 complaint in that case. Judicial notice of the Incident Report is granted. See United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (“[A] court may take judicial notice of its own records in other cases . . . .”); 27 see also United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (“Even if a document is not attached to a complaint, it may be incorporated by reference into a complaint if the plaintiff refers extensively to 28 1 confinement [ ] in disciplinary segregation.” (Id. ¶¶ 41-42). Second, when deputies were 2 asked by Plaintiff about the reasons for and length of his confinement, “[t]he deputies 3 simply ignored these questions, or would reply that they would deal with the issue on their 4 ‘next walk’ and that ‘Sergeant [Gehris] is aware of it.’” (Id. ¶ 43). Third, Defendant Gehris 5 told Plaintiff that he would “look into it” upon being asked by Plaintiff why Plaintiff was 6 being held “in the hole” and when he would be released. (Id. ¶ 44). Fourth, an officer 7 explained to Plaintiff “that [Plaintiff] was being held in the hole because he had filed an 8 Internal Affairs complaint form.” (Id. ¶ 45). 9 “Although [Defendant Gehris] became aware that [Plaintiff] was being detained in 10 disciplinary segregation without legitimate justification and in retaliation for requesting an 11 Internal Affairs form, [Defendant Gehris] did nothing to remedy the situation”—he instead 12 “cooperated in the retaliation” by “keeping [Plaintiff] improperly confined . . . .” (Id. ¶ 46). 13 In segregation, Plaintiff was housed in an “utterly filthy” cell with a “suicidal” inmate, and 14 “denied clean clothing, denied the ability to shower, and denied any contact with the 15 outside world.” (Id. ¶¶ 47-49). Plaintiff was released after six days “without explanation” 16 and given an “Incident Report” that described Plaintiff’s various rights, “none of which” 17 Plaintiff was actually afforded. (Id. ¶¶ 51, 53). 18 Plaintiff brings a single claim against Defendants for First Amendment retaliation 19 under 42 U.S.C. § 1983, alleging that Defendants took adverse action against Plaintiff with 20 no “legitimate correctional goal” by transferring and keeping Plaintiff in “the hole” because 21 of Plaintiff’s request for an Internal Affairs form. Plaintiff alleges that such action “chilled” 22 Plaintiff’s exercise of his “First Amendment rights to file grievances against jail officials 23 by conveying the unambiguous message that any attempt to use the Internal Affairs 24 complaint system against [Defendant McGrath] would be met with considerable 25 retaliation.” (Id. ¶¶ 55, 67, 69). Plaintiff seeks damages, fees, and costs. 26 III. CONTENTIONS 27 Defendant Gehris contends that the Plaintiff fails to demonstrate a causal connection 28 between Plaintiff’s protected conduct and the alleged adverse action against Plaintiff 1 because the FAC does not allege facts to show “that [Defendant] Gehris knew of Plaintiff’s 2 request for an [Internal Affairs] complaint form or that the alleged request had anything to 3 do with Plaintiff’s transfer to ‘the hole.’” (ECF No. 30-1 at 5). Defendant Gehris further 4 contends that the FAC fails to allege sufficient facts to demonstrate that Defendant Gehris 5 took an adverse action against Plaintiff, that there was an absence of legitimate correctional 6 goals, or that Defendant Gehris’ actions chilled Plaintiff’s exercise of his First Amendment 7 rights. 8 Plaintiff contends that causation is supported by the allegations in the FAC, 9 including allegations that Defendant Gehris was the disciplinary review officer that 10 approved the use of disciplinary segregation and that the Incident Report facially “states 11 no legitimate basis for imposing the . . . form of discipline that is at issue here.” (ECF No. 12 33 at 4). Plaintiff further contends that the elements of the absence of a legitimate 13 correctional goal and chilling of Plaintiff’s speech are adequately pleaded in the FAC. 14 IV. LEGAL STANDARD 15 Rule 12(b)(6) of the Federal Rules of Civil Procedure permits dismissal for “failure 16 to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In order to state 17 a claim for relief, a pleading “must contain . . . a short and plain statement of the claim 18 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Dismissal under Rule 19 12(b)(6) “is proper only where there is no cognizable legal theory or an absence of 20 sufficient facts alleged to support a cognizable legal theory.” Shroyer v. New Cingular 21 Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). 22 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 23 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 24 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 25 “A claim has facial plausibility when the plaintiff pleads factual content that allows the 26 court to draw the reasonable inference that the defendant is liable for the misconduct 27 alleged.” Id. However, “a plaintiff’s obligation to provide the ‘grounds’ of his 28 ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic 1 recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 2 (alteration in original) (quoting Fed. R. Civ. P. 8(a)). A court is not “required to accept as 3 true allegations that are merely conclusory, unwarranted deductions of fact, or 4 unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 5 2001). “In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual 6 content, and reasonable inferences from that content, must be plausibly suggestive of a 7 claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 8 2009). 9 V. DISCUSSION 10 “Prisoners have a First Amendment right to file grievances against prison officials 11 and to be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th 12 Cir. 2012). “Within the prison context, a viable claim of First Amendment retaliation 13 entails five basic elements: (1) An assertion that a state actor took some adverse action 14 against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action 15 (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not 16 reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 17 567–68 (9th Cir. 2005). 18 In its previous Order granting Defendant Gehris’ motion to dismiss the Complaint, 19 the Court held that Plaintiff failed to establish the second element of his First Amendment 20 retaliation claim. To establish the second element, the FAC must allege “a causal 21 connection between the adverse action and the protected conduct.” Watison, 668 F.3d at 22 1114. “Because direct evidence of retaliatory intent rarely can be pleaded in a complaint, 23 allegation of a chronology of events from which retaliation can be inferred is sufficient to 24 survive dismissal.” Id. However, “It is not enough to show that an official acted with a 25 retaliatory motive and that the plaintiff was injured—the motive must cause the injury.” 26 Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019). 27 The FAC alleges that Defendant Gehris “cooperated in the retaliation” by “keeping 28 [Plaintiff] improperly confined” despite Defendant Gehris knowing that Plaintiff was being 1 detained in disciplinary segregation in retaliation for requesting an Internal Affairs 2 complaint form. (ECF No. 29 ¶ 46). The FAC alleges that Defendant Gehris “came to be 3 aware of the improper basis for [the] transfer [to disciplinary segregation]” for the four 4 reasons described in Section II of this Order. (Id. ¶ 40; see id. ¶¶ 41-45). 5 In its previous Order granting Defendant Gehris’ motion to dismiss the Complaint, 6 the Court considered several of these allegations and found them lacking. (See, e.g., ECF 7 No. 23 at 7-8 (“Plaintiff’s allegation that he questioned Gehris about the reasons for his 8 placement in the SHU and Gehris responded ‘I’ll look into it’ also does not plausibly 9 suggest Gehris knew about Plaintiff’s intent to file an Internal Affairs complaint against 10 McGrath and conspired with McGrath to retaliate against Plaintiff for engaging in that 11 conduct.”)). The supplemented allegations contained in the FAC support an inference that 12 Defendant Gehris was aware of the stated bases for Plaintiff’s confinement contained in 13 the Incident Report—that Plaintiff was in violation of rules and regulations regarding 14 “Disrespect to Staff,” “Boisterous Activity,” and “Interfere[nce] with jail operations.” 15 (ECF No. 30-2 at 5). Plaintiff alleges that Defendant Gehris did not rely on the bases for 16 discipline contained in the Incident Report and was instead aware of the retaliatory motive 17 and cooperated in the retaliation because “the narrative of the [Incident Report] made clear 18 that [Plaintiff] had not actually engaged in any serious misbehavior of the sort that would 19 justify the use of disciplinary segregation” under the Sheriff Department policies. (ECF 20 No. 29 ¶ 41). However, this assertion is contradicted by the allegation that the Sheriff 21 Department policies also permit disciplinary segregation for “multiple cumulative 22 offenses” where “less stringent methods have failed to correct behavior or . . . other 23 methods would be ineffective or inappropriate.” (Id. ¶¶ 35-36). The FAC does not allege 24 sufficient facts to support a plausible inference that the bases for confinement described in 25 the Incident Report by themselves put Defendant Gehris on notice of a retaliatory motive 26 or support an inference that Defendant Gehris actively participated in the retaliation. 27 Defendant Gehris’ Motion to Dismiss Plaintiff’s First Amended Complaint is granted 28 1 because Plaintiff fails to adequately allege the causation element of his claim against 2 || Defendant Gehris. 3 CONCLUSION 4 IT IS HEREBY ORDERED that the Motion to Dismiss Plaintiff's First Amended 5 ||Complaint (ECF No. 30) filed by Defendant John Gehris is granted. Plaintiff Ronald Earl 6 || Gadsden’s claim against Defendant Gehris is dismissed without prejudice. 7 || Dated: April 19, 2022 BME: Kho Zz. A a 8 Hon. William Q. Hayes 9 United States District Court 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Having concluded that Plaintiff does not adequately plead causation, the Court declines to address the other elements of Plaintiff's First Amendment retaliation claim against Defendant Gehris.