(PC) Jackson v. Marley

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA — 9 — 10 CORNEL JACKSON, Case No. 1:23-cv-00149-KES-HBK (PC) 11 Plaintiff, ORDER GRANTING DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE 12 v. (Doc. No. 16-2) 13 H. MARLEY, et al., FINDINGS AND RECOMMENDATIONS TO 14 Defendants. G DR EFA EN NT D I AN N P TA SR ’ T M A ON TD IO D NE TN OY D IN IS P MA ISR ST 1 — 15 — (Doc. No. 16) — 16 — 17 Pending before the Court is Defendants Hermina Marley, Lt. Jim Followill, Jayson Quick, 18 Maria Rivera, Dominic Ramos, and Daisy Cortes’ Motion to Dismiss filed on July 16, 2024. 19 (Doc. No. 16, “Motion”). Included within Defendants’ Motion is a Request for Judicial Notice. 20 (Doc. No. 16-2). Plaintiff filed an untimely Opposition (Doc. No. 17), and Defendants filed a 21 Reply (Doc. No. 18). For reasons set forth below, the undersigned grants the Request for Judicial 22 Notice and recommends the district court grant in part and deny in part Defendants’ Motion to 23 Dismiss. 24 BACKGROUND 25 Plaintiff initiated this action by filing a civil rights complaint pursuant to 42 U.S.C. § 1983 26 while a pretrial detainee in the Madera County Jail (“MCJ”). (Doc. No. 1). Plaintiff is — 27 — 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636 (b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2023). 1 proceeding on his First Amended Complaint (“FAC”) as screened. (Doc. Nos. 9, 11, 12). The 2 FAC alleges the following facts, which the Court must accept as true at this stage of the 3 proceedings. 4 In August 2022, the state court appointed Plaintiff new counsel for his underlying criminal 5 case. (Doc. No. 8 at 3). His new counsel was approved for “clearance” to MCJ for “contact 6 consultations” with Plaintiff. (Id.). Defense counsel’s office is located in Jackson, California.2 7 (Id. at 4). On or about September 18, 2022, counsel arrived at the jail to meet with Plaintiff but 8 Defendants Marley and Followill told counsel that Plaintiff was unavailable for a visit because he 9 was eating lunch. (Doc. No. 8 at 5). Plaintiff’s counsel was directed to return in two hours, 10 which he did, at which time Defendants Rivera, Cortes, and Ramos denied him access to the 11 facility, purportedly on Defendant Quick’s order. (Id. at 5-6). Defendants Rivera, Ramos, and 12 Cortes allegedly gave no other reason for denying Plaintiff’s counsel access to MCJ. (Id. at 6). 13 Plaintiff’s attorney was again denied access to Plaintiff by Defendants Marley, Rivera, and Cortes 14 on October 4, October 27, November 11, November 28, December 9, and December 28, 2022. 15 (Id. at 5, 12-17). In each of those instances, the Defendants initially denied Plaintiff’s defense 16 counsel access to enter the MCJ, asked him to return two hours later, and then upon his return 17 denied him access again, allegedly at the direction of Defendant Quick. (Id.). Plaintiff’s attorney 18 asked on multiple occasions to speak with the watch commander, but his requests were denied. 19 (Id. at 5). Plaintiff also alleges he could only call counsel on a recorded line and his calls were 20 disconnected after 120 seconds, or his calls to his attorney were otherwise blocked. (Id. at 4). 21 Defense counsel informed Plaintiff that due to his inability to have contact with him, he was 22 forced to request a continuance of Plaintiff’s criminal trial for six to twelve months. (Id. at 4). 23 The FAC alleges that these actions were taken by Defendants in retaliation for Plaintiff 24 filing a lawsuit alleging conspiracy, denial of access to courts, and interference with Plaintiff’s 25 legal mail in 2019 against Defendants Marley, Followill, Ramos, and Quick. 3 (Id. at 7). 26 Finally, while Plaintiff was prevented from seeing his attorney, other attorneys were able — 27 — 2 Jackson, California is located approximately 150 miles from MCJ. 28 3 Jackson v. Quick, E.D. Cal. Case No. 1:19-cv-00591. 1 to meet with other pretrial detainees at MCJ without incident. 4 (Doc. No. 8 at 13). Further, no 2 prison official provided a reason to justify why Plaintiff was denied access to his attorney while 3 other detainees were permitted to have contact visits from their counsel. 4 Liberally construed, the Court found the FAC alleged the following claims against 5 Defendants Quick, Ramos, Marley, Rivera, Cortes, and Followill: (1) First Amended retaliation; 6 (2) First Amendment right to communication with counsel; (3) Sixth Amendment access to 7 counsel; and (4) Fourteenth Amendment right to equal protection. (Doc. No. 11 at 1). 8 Defendants’ Motion seeks dismissal of Plaintiff’s FAC under Rule 12(b)(6) on two 9 grounds: (1) Plaintiff’s FAC fails to allege any cognizable constitutional claim; and (2) 10 Defendants are entitled to qualified immunity on Plaintiff’s Sixth Amendment and Fourteenth 11 Amendment claims because they did not violate any of Plaintiff’s clearly established rights. (See 12 generally Doc. No. 16-1).5 Specifically, Defendants contend that Plaintiff’s Sixth Amendment 13 right to counsel claim for damages is barred by binding Ninth Circuit case law (id. at 5-6); that 14 section 1983 is an improper vehicle for asserting a Sixth Amendment ineffective assistance of 15 counsel claim, which can only be brought through a habeas corpus action or a direct appeal (id. at 16 6-7); that Plaintiff has failed to allege facts showing the requisite intent by Defendants or 17 sufficient prejudice to a non-frivolous legal claim to sustain a Sixth Amendment access to counsel 18 claim (id. at 7-9) or First Amendment right to communication with counsel claim (id. at 9-10); 19 that Plaintiff’s First Amendment retaliation claim fails because the FAC does not sufficiently 20 allege a causal connection between Plaintiff’s protected conduct and Defendants’ purported 21 adverse actions nor that their actions had a chilling effect on Plaintiff (id. at 10-11); and finally 22 that Plaintiff’s equal protection claims fail because class-of-one claims are unavailable to 23 challenge arbitrary treatment of prisoners, and because, even if cognizable, the FAC fails to allege 24 facts supporting such a claim (id. at 11-14). — 25 — 26 4 Plaintiff’s Opposition appears to contradict this assertion. In it, Plaintiff asserts that he is aware of at least two other inmates that were denied contact visits with their attorneys. (Doc. No. 17 at 4-5). 27 5 Defendants also suggest that Plaintiff’s motive in filing this action is a ruse to disrupt his underlying criminal case. (Doc. No. 16-1 at 3:6-8; 3:16). The Court makes no findings as to Plaintiff’s motive at this 28 stage of the proceedings. 1 In his Opposition, which was untimely filed on August 29, 2024,6 Plaintiff insists that the 2 claims alleged in the FAC are cognizable, largely reasserting or referencing the facts in the First 3 Amended Complaint and citing various legal authorities that he contends refute Defendants’ 4 arguments. (See generally Doc. No. 17). Plaintiff insists that he has suffered prejudice in his 5 criminal case because of his inability to meet with his attorney, including unspecified 6 consequences of the delayed proceedings and experiencing “fear, stress . . . mental anguis[h]” and 7 a “depressive state of mind.” (Id. at 11). He states he has “raised facts supporting a reasonable 8 inference that Defendants” intended to deprive Plaintiff of his constitutional rights. (Id.). 9 Plaintiff claims that Defendant Quick has been demoted because of misconduct, including 10 denying other detainees’ access to counsel, which is the subject of at least one other lawsuit that 11 recently settled. (Id. at 4-5).7 Plaintiff argues that materials that emerge in discovery, including 12 surveillance video and documents, will support all his claims. (Id. at 4, 12). 13 In their Reply, Defendants assert first, that the Court should disregard Plaintiff’s response 14 because it is “inexcusably untimely.” (Doc. No. 18 at 1). As to the substance of the Opposition, 15 Defendants contend that Plaintiff’s arguments consist largely of threadbare recitals of the 16 elements of his claims, vague and conclusory statements, and inapposite legal citations. (Id. at 2, 17 5-7). Defendants ask the Court to strike and disregard all new allegations made in the 18 Opposition, including assertions as to Defendant Quick and alleged lawsuits against him, 19 psychological harm Plaintiff suffered as a result of the delays in his criminal case, and statements 20 as to the knowledge of Defendants Followill and Marley regarding when Plaintiff takes his lunch. 21 (Id. at 4-5). 22 A. Plaintiff’s Untimely Opposition 23 Because Plaintiff’s opposition was untimely, the court may disregard it under Local Rule 24 230(l). Considering Plaintiff’s pro se status and the public interest in having cases resolved on 25 the merits, however, the Court elects to consider Plaintiff's arguments. See Bumagat v. Shillinger, — 26 — 6 Plaintiff’s opposition was due to be delivered to correctional officials for mailing no later than August 6, 27 2024. See Local Rule 230(l). (E.D. Cal. 2023). 7 While the Court acknowledges these new allegations made in Plaintiff’s Opposition, as noted below, the 28 Court largely disregards them for purposes of analyzing Defendant’s Motion. — 1 — 2019 WL 1382495 , at *5 n.3 (E.D. Cal. Mar. 27, 2019), report and recommendation adopted, — 2 — 2019 WL 2465138 (E.D. Cal. June 13, 2019). 3 B. New Factual Assertions Made in Plaintiff’s Opposition 4 In his Opposition to Defendants’ Motion, Plaintiff makes several new assertions regarding 5 Defendant Quick’s employment status, other federal cases alleging interference with counsel 6 claims against Defendant Quick, Plaintiff’s suffering psychological harm from the delay to his 7 criminal case, and Defendants’ knowledge regarding his lunch breaks. (See, e.g., Doc. No. 17 at 8 4-5). As a general matter, the Court does not find these new assertions to be relevant or material 9 to the issues in this Motion. Moreover, it is well-settled that a plaintiff “may not amend his 10 allegations through facts raised in opposition to a motion to dismiss.” King v. Navy Fed. Credit 11 Union, 699 F. Supp. 3d 864 , 870 (C.D. Cal. 2023). Accordingly, the Court largely disregards 12 these additional allegations made in Plaintiff’s Opposition. 13 REQUEST FOR JUDICIAL NOTICE 14 Attached to Defendants’ Motion is a Request for Judicial Notice. (Doc. No. 16-2). 15 Although the motion to dismiss stage typically does not involve considering matters outside the 16 pleadings, the court may consider items that are properly judicially noticed. Rosal v. First Fed. 17 Bank of Cal., 671 F. Supp. 2d 1111, 1120 (N.D. Cal. 2009). Defendants request the Court take 18 judicial notice of six cases filed by Plaintiff8 in the Eastern District of California and “all 19 documents in the Court record related thereto”: 20 1. Jackson v. Quick, et al. Case No. 1:19-cv-01591-EPG. 21 2. Jackson v. Khalib, et al. Case No. 1:20-cv-01567-KES-SKO 22 3. Jackson v. County of Madera, et al. Case No. 1:22-cv-00069-ADA-EPG 23 4. Jackson v. Perez et al. Case No. 1:24-cv-00034-KES-HBK 24 5. Jackson v. Rivera et al. Case No. 1:24-cv-00261-KES-BAM — 25 — 8 The Motion does not explain the relevance of these cases nor specify that they were filed by Plaintiff (the 26 motion cites them by case number only), but they are referenced in Defendants’ Brief in Support as proof that Plaintiff is “a highly litigious individual” who has filed these lawsuits with the goal of “undermining 27 his criminal trial related to the murder of a two-year-old child.” (Doc. No. 16-1 at 2). The Court does not consider Plaintiff’s litigiousness or motivation relevant for purposes of determining whether the FAC 28 states a claim. 1 6. Jackson v. Pouge et al. Case No. 1:24-cv-00585-JLT-EPG 2 Federal Rule of Evidence 201 permits a court to take judicial notice of facts that are “not 3 subject to reasonable dispute” because they are either “generally known within the trial court’s 4 territorial jurisdiction,” or they “can be accurately and readily determined from sources whose 5 accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Courts judicially notice other 6 court proceedings “if those proceedings have a direct relation to the matters at issue.” United 7 States ex. Rel. Robinson Rancheria Citizens Counsel v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 8 1992) (citations and internal quotation marks omitted); Trigueros v. Adams, 658 F.3d 983 , 987 9 (9th Cir. 2011). However, a court may not take judicial notice of findings of facts from another 10 case. Walker v. Woodford, 454 F. Supp. 2d 1007, 1022 (S.D. Cal. 2006). The Court may take 11 judicial notice on its own or at the request of any party, and “must take judicial notice if a party 12 requests it and the court is supplied with the necessary information.” Fed. R. Evid. 201(c). 13 Here, Defendants ask the Court to take judicial notice of six other cases Plaintiff has filed 14 against the County of Madera and its employees. The existence of these cases is not subject to 15 reasonable dispute, and they are sufficiently related to warrant judicial notice given that they have 16 all been filed by Plaintiff related to his detention at MCJ and several of the cases name 17 Defendants who are also named in this action. Plaintiff does not challenge Defendants’ Request. 18 (See Doc. No. 17). And because Defendants have provided the necessary information to establish 19 the propriety of judicial notice, the Court must grant the request under Federal Rule of Evidence 20 201(c). 21 APPLICABLE LAW AND ANALYSIS 22 A. Rule 12(b)(6) 23 A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure “tests the 24 legal sufficiency of a claim.” Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 25 2011). Dismissal for failure to state a claim is proper if there is a “lack of a cognizable legal 26 theory or the absence of sufficient facts alleged under a cognizable legal theory.” Id.; see also 27 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (to survive a motion to dismiss, the 28 complaint must have sufficient facts to state a facially plausible claim to relief). In deciding a 1 motion under Rule 12(b)(6), the court accepts as true all well-pled factual allegations in the 2 complaint and determines whether the factual allegations are sufficient to state a right to relief 3 above the speculative level. Ashcroft v. Iqbal, 556 U.S. 662 (2009); see also Nw. Envtl. Def. Ctr. 4 v. Brown, 640 F.3d 1063, 1070 (9th Cir. 2011) (court accepts as true all material allegations in the 5 complaint, as well as any reasonable inferences to be drawn from them). 6 The fact that the Court found Plaintiff’s claims plausible at the screening stage does not 7 foreclose the possibility of granting a motion to dismiss. See Forte v. Hughes, 2014 WL 8 5603788, *1 (E.D. Cal. Nov. 3, 2014) (noting a screening order does not rule on the merits of the 9 proposed action but instead evaluates whether the claim is cognizable and is not a substitute for a 10 12(b)(6) motion); see also Teahan v. Wilhelm, 481 F.Supp.2d 1115, 1119 (S.D. Cal. March 28, 11 2007) (“a defendant’s right to bring a motion to dismiss is not foreclosed by the issuance of a sua 12 sponte screening providing that the prisoner has stated a claim”). 13 Where a motion to dismiss is granted, a district court must decide whether to grant leave 14 to amend. Courts are instructed to apply Rule 15 with extreme liberality. Eminence Capital, LLC 15 v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (citations omitted); Winebarger v. 16 Pennsylvania Higher Educ. Assistance Agency, 411 F. Supp. 3d 1070 , 1082 (C.D. Cal. 2019). 17 Only where leave to amend would be futile, because “the allegation of other facts consistent with 18 the challenged pleading could not possibly cure the deficiency,” should leave to amend be denied. 19 DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992). 20 1. First Amendment Retaliation Claim Against All Defendants 21 Applicable Law 22 The First Amendment guarantees a prisoner the right to file a grievance or access the 23 courts. Jones v. Williams, 791 F.3d 1023, 1035 (9th Cir. 2015); Brodheim v. Cry, 584 F. 3d 1262 , 24 1269 (9th Cir. 2009). Retaliating against an inmate for exercising this right is “prohibited as a 25 matter of ‘clearly established law.” Brodheim, 584 F.3d at 1269 (citations omitted). To state a 26 claim for First Amendment retaliation, a plaintiff must allege five elements: (1) he engaged in 27 protected activity; (2) the state actor took an adverse action against the plaintiff; (3) a causal 28 connection between the adverse action and the protected conduct; (4) the defendant’s actions 1 would chill or silence a person of ordinary fitness from protected activities; and (5) the retaliatory 2 action did not advance a legitimate correctional goal. Chavez v. Robinson, 12 F.4th 978 , 1001 3 (9th Cir. 2021) (quoting Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005)). To raise a 4 triable issue, a plaintiff must come forward with “either direct evidence of retaliatory motive or at 5 least one of the three general types of circumstantial evidence”— (1) proximity in time between 6 the protected speech and the alleged retaliatory act; (2) expressed opposition; or (3) other 7 evidence that the reasons proffered for the adverse action are false or pretextual. Allen v. Iranon, — 8 — 283 F.3d 1070, 1077 (9th Cir. 2002); see also Bruce v. Ylst, 351 F.3d 1283 , 1288–89 (9th 9 Cir.2003); McCollum v. Ca. Dep’t of Corr. And Rehab., 647 F.3d 870, 882 (9th Cir. 2011). Mere 10 speculation that a defendant acted out of retaliation is not sufficient. Wood v. Yordy, 753 F.3d 11 899, 905 (9th Cir. 2014) (citing cases). 12 Analysis 13 Plaintiff’s FAC alleges that Defendants Quick, Ramos, Marley, Rivera, Cortes, and 14 Followill retaliated against him because he filed a prior federal suit against Defendants Quick, 15 Ramos, Marley, and Followill for conspiracy, denial of access to courts, and interference with 16 Plaintiff’s legal mail. (Doc. No. 8 at 7). Defendants argue that Plaintiff’s claim is conclusory and 17 lacks factual allegations to support the second and fourth elements of a retaliation claim. (Doc. 18 No. 16-1 at 10). 19 Defendants assert that the mere fact of Plaintiff having filed a lawsuit against some of 20 them in 2019 is insufficient to establish that their actions in 2022 were driven by a retaliatory 21 motive. (Id.). They contend this amounts to mere speculation. (Id.). Plaintiff counters that 22 the time sequence of Plaintiff’s legal action on Madera County Jail and the retaliation as described in this action is proof and a showing 23 that each Defendant purposely intervened on Plaintiff’s rights. It was no coincidence that Plaintiff’s filing suits on the Madera 24 County Jail and its employees was cause for Defendants in this action to harass Plaintiff, deny him and retaliate by restricting legal 25 visits and phone calls with Plaintiff’s trial attorney. 26 (Doc. No. 17 at 9-10). 27 Proximity in time between protected First Amendment conduct and adverse action can 28 support an inference of retaliatory motive, though by itself it is generally insufficient. See Pratt v. 1 Rowland, 65 F.3d 802, 808 (9th Cir. 1995); see also Garcia v. Sleeley, 2019 WL 2234789 , at *9 2 (S.D. Cal. May 22, 2019) (“circumstantial evidence of timing, without more, is insufficient” to 3 demonstrate retaliatory motive), report and recommendation adopted, 2019 WL 3887340 (S.D. 4 Cal. Aug. 19, 2019), aff’d sub nom. Garcia v. Seeley, 854 F. App’x 882 (9th Cir. 2021). The 5 Ninth Circuit found in Pratt that timing, without evidence that defendants were aware of the 6 protected conduct, is insufficient to establish retaliatory motive. Pratt, 65 F.3d at 808 . 7 The mere fact that Plaintiff filed a lawsuit against Defendants Quick, Ramos, Marley and 8 Followill three years before the incidents giving rise to the FAC does not by itself create an 9 inference of retaliatory motive. However, the Court notes that in the 2019 lawsuit, Jackson v. 10 Quick (“the Quick case”), Defendants’ Motion for Summary Judgment (“MSJ”) was pending at 11 the time Plaintiff alleges they began their retaliatory conduct in September 18, 2022, and on 12 October 13, 2022, the assigned magistrate judge issued Findings and Recommendations to grant 13 in part and deny in part the MSJ, effectively permitting Plaintiff’s case to proceed to trial. (See 14 Doc. Nos. 108, 123, E.D. Cal. Case No. 1:19-cv-01591-EPG). Plaintiff’s FAC alleges that his 15 attorney was denied entry to MCJ on five occasions in the two months immediately following this 16 decision. (See Doc. No. 8). These events overlap closely with the dates when Plaintiff’s attorney 17 attempted to visit him at MCJ, supporting an inference of a causal connection. See Bruce, 351 18 F.3d at 1288–89; McCollum, 647 F.3d at 882 . 19 Unlike in Pratt, here Defendants Quick, Ramos, Marley and Followill cannot plausibly 20 dispute that they were unaware of the protected First Amendment conduct that Plaintiff alleges 21 prompted their retaliatory conduct. As Defendants in the Quick case, they would have been 22 following closely the developments in that action and promptly learned that their case would be 23 going to trial rather than dismissed at summary judgment. The fact that four of the Defendants in 24 this case were named as Defendants in the prior suit further supports such an inference of a 25 retaliatory motive. Accordingly, the Court can reasonably infer based on the timing of their 26 adverse actions toward Plaintiff that they were motivated by retaliation for Plaintiff’s ongoing 27 exercise of his First Amendment rights to adequately allege a causal connection at the pleading 28 stage. 1 As to Defendants Rivera and Cortes, however, the FAC does not allege any facts 2 indicating that either Defendant knew of the 2019 lawsuit, and therefore precludes any claim that 3 their actions were motivated by that protected conduct. See Corales v. Bennett, 567 F.3d 554 , 4 568 (9th Cir. 2009) (noting that, at summary judgment stage, evidence that a defendant knew of 5 the protected speech is required to sustain a First Amendment retaliation claim); see also Pratt, — 6 — 65 F.3d at 808 (reversing district court’s grant of preliminary injunction in favor of plaintiff, 7 where there was no basis to infer that defendants were aware of plaintiff’s protected First 8 Amendment conduct). Accordingly, because the FAC does not contain any fact supporting a 9 causal connection between Defendants Rivera and Cortes and Plaintiff’s 2019 lawsuit, the 10 undersigned will recommend the First Amendment retaliation claim be dismissed as to 11 Defendants Rivera and Cortes. 12 Defendants next argue that Plaintiff fails to allege any facts showing that his First 13 Amendment rights were chilled as a result of Defendants’ conduct. (Doc. No. 16-1 at 9-10). 14 They note that Plaintiff was able to collect pertinent facts for the instant lawsuit through 15 subsequent conversations with his attorney, refuting an inference that Plaintiff’s First Amendment 16 rights were chilled. (Id.). Plaintiff does not respond to this argument. 17 To satisfy the fourth element of a retaliation claim, a plaintiff “must show that the adverse 18 action either chilled his own First Amendment exercise or would chill that of a person of ordinary 19 firmness.” Garcia, 2019 WL 2234789 at *10, citing Brodheim, 584 F.3d at 1269-1270 ; Rhodes, — 20 — 408 F.3d at 568-569 . A plaintiff need not demonstrate that his First Amendment rights were 21 totally “inhibited or suppressed” because “it would be unjust to allow a defendant to escape 22 liability for a First Amendment violation merely because an unusually determined plaintiff 23 persists in his protected activity.” Rhodes, 408 F.3d at 568 -569 (citing Mendocino Envtl. Ctr. v. 24 Mendocino Cnty., 192 F.3d 1283 , 1300 (9th Cir. 1999)). A plaintiff can establish that an action 25 would silence a person of ordinary firmness by showing that the action caused harm that was 26 more than minimal. Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012); Brodheim, 584 F.3d 27 1262; Rhodes, 408 F.3d at 567, n. 11 . Here, the Court disagrees that Plaintiff has failed to 28 establish the fourth element of a retaliation claim. Being denied access to one’s criminal defense 1 attorney on multiple occasions over several months, particularly when defending against murder 2 charges, constitutes harm that is more than minimal, and therefore would silence a person of 3 ordinary firmness. The fact that it did not deter Plaintiff in this case from continuing his attempt 4 to contact his attorney does not preclude a finding of retaliation. 5 Thus, the undersigned recommends the District Court deny Defendants’ Motion to 6 Dismiss Plaintiff’s First Amendment retaliation claim as to Defendants Quick, Ramos, Marley, 7 and Followill but grant the Motion as to Defendants Rivera and Cortes. 8 2. Sixth Amendment Access to Counsel Claim Against All Defendants 9 Applicable Law 10 The Sixth Amendment guarantees a pretrial detainee the right to the effective assistance of 11 counsel at all “‘critical’ stages in the criminal justice process.” Maine v. Moulton, 474 U.S. 159 , 12 170 (1985) (“[T]o deprive a person of counsel during the period prior to trial may be more 13 damaging than denial of counsel during the trial itself.”). However, “[n]ot every restriction on 14 counsel’s time or opportunity to investigate or to consult with his client or otherwise prepare for 15 trial violates a defendant’s Sixth Amendment right to counsel.” Morris v. Slappy, 461 U.S. 1 , 11 16 (1983) (citation omitted). 17 As to Plaintiff’s Sixth Amendment right to counsel claim, Defendant notes that “the Ninth 18 Circuit has never recognized a cognizable claim for damages under section 1983 for restrictions 19 on the attorney-client relationship in violation of the Sixth Amendment.” (Doc. No. 16-1 at 5-6) 20 (quoting Yandell v. Washington, 2021 WL 1907170 , at *4 (E.D. Cal. May 12, 2021); see also 21 Bradley v. Health Midwest, Inc., 203 F.Supp.2d 1254, 1259 (D. Kan. 2002) (noting court has 22 “been unable to find a single case where the plaintiff was awarded money damages under a § 23 1983 claim for deprivation of the right to counsel” and that “the typical remedy for a violation of 24 the Sixth Amendment right to counsel is that impermissibly obtained evidence is excluded”). 25 Analysis 26 Here, Plaintiff’s requested relief in this action is limited to various forms of monetary 27 damages. (See Doc. No. 8 at 14). Plaintiff cites a single case, Procunier v. Martinez, 416 U.S. 28 396 (1974), for his assertion that his “claim for damages under section 1983 for violations of his 1 Sixth Amendment right to counsel is well established.” (Doc. No. 17 at 8). However, Procunier 2 did not concern the availability of damages in a section 1983 claim brought under the Sixth 3 Amendment; instead, it addressed the constitutionality of two prison regulations, including one 4 that banned the use of law students and paralegals in conducting attorney-client interviews with 5 inmates. Procunier, 416 U.S. at 398. Procunier is thus clearly inapposite here and the 6 uncontroverted authority before the Court holds that Plaintiff cannot pursue damages in a Sixth 7 Amendment right to counsel claim under section 1983. 8 To the extent that Plaintiff asserts a Sixth Amendment claim for ineffective assistance of 9 counsel, Defendants contend this is likewise unavailable because such an action can only be 10 brought in a habeas corpus proceeding or on direct appeal. (Doc. No. 16 at 9) (citing U.S. v. 11 Ross, 206 F.3d 896, 900 (9th Cir. 2000) and U.S. v. Nickerson, 556 F.3d 1014, 1018 (9th Cir. 12 2009)). The Court agrees. The effectiveness of counsel cannot be determined at this stage of 13 Plaintiff’s criminal proceedings, where there is no record as to “what counsel did, why it did what 14 was done and what, if any, prejudice resulted.” U.S. v. Pope, 841 F.2d 954, 958 (9th Cir. 1988). 15 Plaintiff cites several cases, such as Estelle v. Ruiz, 503 F.Supp. 1265 (S.D. Tex. 1980), that 16 support an inmate’s general right to counsel, however the authorities cited do not support that 17 Plaintiff can proceed on an ineffective assistance of counsel claim at this stage. Therefore, to the 18 extent Plaintiff asserts a Sixth Amendment ineffective assistance of counsel claim, the 19 undersigned recommends it be dismissed by the District Court. 20 Even assuming Plaintiff can proceed under either of these theories, the Court agrees with 21 Defendants that Plaintiff has not established a cognizable injury to support a Sixth Amendment 22 access to counsel claim. Plaintiff insists that the delay in his criminal matter that resulted from 23 his inability to meet with his defense attorney from September-December 2022 may cause 24 further, unanticipated harms, and that “timing, finding witnesses, documents and the investigation 25 and the whole process of criminal trial when stalled, hindered or otherwise illegally without just 26 cause has the potential to effect [sic] a criminal trial and such.” (Doc. No. 17 at 11-12). Beyond 27 these vague and “potential” harms, Plaintiff does not, however, point to any concrete harm that 28 has resulted from his inability to meet with his counsel for roughly 3.5 months. The fact that 1 Plaintiff’s attorney was forced to request a continuance of the case does not establish a cognizable 2 injury. See Cunningham v. Blades, 2006 WL 292087 , at *1 (D. Idaho Feb. 7, 2006) (a delay in 3 plaintiff’s criminal case was not an actual injury); see also Funtanilla v. Duke-Bray, 1999 WL 4 9921, at *2 (N.D. Cal. Jan. 6, 1999) (delay of plaintiff’s civil jury trial “does not amount to an 5 actual injury where plaintiff does not allege, for example, that his civil action was dismissed or he 6 suffered some other sanction as a result of the delay”), aff’d, 203 F.3d 830 (9th Cir. 1999); 7 Vitasek v. Maricopa County Sheriff’s Office, 2012 WL 176313 , at *6 (D. Ariz. Jan. 23, 2012) 8 (ruling at summary judgment that the prisoner plaintiff failed to show an actual injury when an 9 approximately one-month delay in a court hearing resulted in longer jail detention). Accordingly, 10 the undersigned recommends the Sixth Amendment claims be dismissed for the additional reason 11 that Plaintiff fails to establish any concrete injury from the restrictions on his access to counsel. 12 3. First Amendment Right to Communication with Counsel Against All Defendants 13 Applicable Law 14 The First Amendment guarantee of access to the courts affirmed in Bounds v. Smith, 430 15 U.S. 817 , 821 (1977) also guarantees a pretrial detainee “meaningful access to the courts” 16 including the opportunity to communicate privately with defense counsel and contact visits. 17 Ching v. Lewis, 895 F.2d 608, 609-10 (9th Cir. 1990). Indeed, “[a] criminal defendant’s ability to 18 communicate candidly and confidentially with his lawyer is essential to his defense” and “nearly 19 sacrosanct.” Nordstrom v. Ryan, 762 F.3d 903, 910 (9th Cir. 2014). “This right is not absolute, 20 however; like other rights of pretrial detainees, the right to contact visits may be denied for 21 legitimate reasons.” Yandell, 2021 WL 1907170 at *3, citing Block v. Rutherford, 468 U.S. 576 , 22 585-89 (1984); United States v. Salerno, 481 U.S. 739, 747 (1987). Denying an inmate contact 23 visits with his attorney without providing any legitimate rationale constitutes an “arbitrary policy 24 . . . [that] prohibits effective attorney-client communication and unnecessarily abridges the 25 prisoner’s right to meaningful access to the courts.” Ching, 895 F.2d at 610 . 26 Analysis 27 Here, Defendants argue that Plaintiff’s First Amendment claim fails, first, because 28 Plaintiff’s communication with his defense counsel was not chilled. They contend the evidence 1 shows that Plaintiff was in communication with his counsel shortly after the last time the attorney 2 was denied entry to MCJ on December 2022; indeed, he relied on those conversations for the 3 allegations contained in his initial Complaint, filed in January 2023. (Doc. No. 16-1 at 9). 4 Further, Defendants assert that with the exception of Defendant Quick, there is no evidence of 5 intent to deter Plaintiff’s speech because the remaining Defendants were simply following 6 Quick’s orders to deny access to Plaintiff’s attorney and did not give any reason for the denials. 7 (Id. at 8, 10). 8 As an initial matter, the Court is not persuaded that Defendants address Plaintiff’s First 9 Amendment claim under the proper standard. They cite to Mendocino Environmental Center vs. 10 Mendocino County, 192 F.3d 1283 (9th Cir. 1999), which is a First Amendment free speech case, 11 and Hayes v. Idaho Correctional Center, 849 F.3d 1204 (9th Cir. 2017), a First Amendment 12 access to legal mail case, for the proposition that Plaintiff must allege a chilling effect from 13 Defendants’ conduct and that Defendants had a “specific, subjective intent to inhibit” Plaintiff’s 14 speech. (Doc. No. 16-1 at 9). Although admittedly muddled, the Court construes Plaintiff’s 15 remaining First Amendment claim as premised on the right to access the courts, rather than on his 16 right to confidential communications with counsel9, thus the critical question is whether 17 Plaintiff’s First Amendment right to access the courts has been abridged. 18 [A]ccess to the courts means the opportunity to prepare, serve and file whatever pleadings or other documents are necessary or 19 appropriate in order to commence or prosecute court proceedings affecting one’s personal liberty, or to assert and sustain a defense 20 therein, and to send and receive communications to and from judges, courts and lawyers concerning such matters. — 21 — 22 Lewis v. Casey, 518 U.S. 343, 384 (1996) (Thomas, J., concurring). 23 At the motion to dismiss stage, the Court must accept as true Plaintiff’s allegations that he 24 was denied contact visits with his attorney on seven occasions and that Defendants provided no 25 justification for the denial. (Doc. No. 8 at 4-5). Defendants do not dispute that the denials were 26 made without providing any reason, nor do they attempt now to provide any reasons for the — 27 — 9 This theory was raised separately in Plaintiff’s now-dismissed claims regarding the monitoring of his 28 phone calls to counsel. 1 denials. (Doc. No. 16-1 at 8). Arbitrary denials of the fundamental right to communicate with 2 counsel, unrelated to institutional security or any other legitimate penological purpose, violate the 3 First Amendment. Ching, 895 F.2d at 610 . Accepting Plaintiff’s allegations as true, Defendants’ 4 denials of access to Plaintiff’s attorney were without any legitimate penological justification and 5 thus violated his First Amendment rights. Further, it is well-settled that “[s]ubordinate police 6 officers cannot escape liability when they blindly follow orders.” Baude v. Leyshock, 23 F.4th 7 1065 (8th Cir. 2022); see also O’Rourke v. Hayes, 378 F.3d 1201 , 1210 n.5 (11th Cir. 2004) 8 (“since World War II, the ‘just following orders’ defense has not occupied a respected position in 9 our jurisprudence, and officers in such cases may be held liable under § 1983 if there is a reason 10 why any of them should question the validity of that order); Blake v. California Dep’t of 11 Correction, 2022 WL 20356985 , at *5 (C.D. Cal. Mar. 31, 2022) (collecting cases). Thus, the 12 fact that subordinates of Defendant Quick were merely following his orders is not a complete 13 defense to any constitutional claim, which the FAC otherwise adequately alleges against all 14 Defendants. Accordingly, the undersigned recommends the District Court deny Defendants’ 15 Motion as to Plaintiff’s First Amendment access to courts/communication with counsel claim. 16 4. Equal Protection Under the Fourteenth Amendment Against All Defendants 17 Applicable Law 18 “No State shall . . . deny to any person within its jurisdiction the equal protection of the 19 laws.” U.S. Const. amend. XIV, § 1. “The Equal Protection Clause requires the State to treat all 20 similarly situated people equally.” Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114 , 21 1123 (9th Cir. 2013). There are two different ways in which a plaintiff may state an equal 22 protection claim. A plaintiff’s first option is to allege “facts plausibly showing that the 23 defendants acted with an intent or purpose to discriminate against [him] based upon membership 24 in a protected class[.]” Id. (quoting Thornton v. City of St. Helens, 425 F.3d 1158, 1166 (9th Cir. 25 2005)). The second way a plaintiff may state a claim is “as a ‘class of one’ by alleging that [the] 26 plaintiff has ‘been intentionally treated differently from others similarly situated and that there is 27 no rational basis for the treatment[.]” Koboyashi v. McMulling, 2022 WL 3137958 , at *23 (C.D. 28 Cal. May 31, 2022) (quoting Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). 1 To succeed on his “class of one” claim, Plaintiff must allege that Defendants: (1) intentionally (2) 2 treated him differently than other similarly situated inmates, (3) without a rational basis. See 3 Gerhart v. Lake Cnty., Mont., 637 F.3d 1013, 1022 (9th Cir. 2011). 4 Analysis 5 Here, Plaintiff’s equal protection claim appears to rest on his assertion that “Defendants 6 treated him differently than other prisoners in their facility . . . [because] during the said time, that 7 his attorney was denied the opportunity to enter into the facility, other attorneys were allowed to 8 visit with clients in his module.” (Doc. No. 8 at 13). Liberally construed, Plaintiff asserts that he 9 was treated differently than other similarly situated inmates. However, Defendants contend that 10 courts consistently reject “class-of-one” claims challenging highly-discretionary decisions of 11 prison officials, such as the ones Plaintiff challenges here. (Doc. No. 16-1 at 11-12), citing Reed 12 v Corizon, L.L.C., 2016 WL 11622033 , at *6 (D. Ariz. June 22, 2016) (collecting cases). Indeed, 13 as the Supreme Court stated in Engquist vs. Oregon Dept. of Agriculture: 14 [t]here are some forms of state action . . . which by their nature involve discretionary decisionmaking based on a vast array of 15 subjective, individualized assessments. In such cases the rule that people should be ‘treated alike, under like circumstances and 16 conditions’ is not violated when one person is treated differently from others, because treating like individuals differently is an 17 accepted consequence of the discretion granted. — 18 — 553 U.S. 591, 602 (2008). Defendants argue that the decision whether to admit Plaintiff’s 19 attorney on each of the occasions cited “involved discretionary decision making . . . such as, 20 whether the inmate was available at the time, staffing and/or security needs, or whether the 21 attorney followed the Jail’s visitor policy.” (Doc. No. 16-1 at 12). While the Court has limited 22 information on which to assess the degree of discretion applicable to Defendants’ challenged 23 actions,10 it can reasonably infer that the decisions involved substantial discretion, and thus do not 24 lend themselves to a “clear standard against which departures . . . could be readily assessed.” 25 Engquist, 553 U.S. at 602 . The Court thus agrees that following Engquist, Plaintiff cannot 26 challenge these decisions based on a “class-of-one” theory. — 27 — 10 The FAC describes in general terms the procedure involved in admitting visiting attorneys but not any 28 criteria involved in deciding whether to admit an attorney at a given time. (See Doc. No. 8 at 4). 1 Even assuming such a claim is cognizable, Plaintiff does not allege any facts to support 2 his assertion that other detainees who were able to meet with their attorneys at MCJ on the days 3 that his attorney was denied access are similarly situated to him. The mere fact that Plaintiff and 4 the other individuals are pretrial detainees does not necessarily make them similarly situated. See 5 SmileDirectClub, LLC v. Tippins, 31 F.4th 1110, 1123 (9th Cir. 2022) (“a class-of-one plaintiff 6 should be similar to the proposed comparator in all ‘relevant’ or ‘material’ respects); see also 7 Gianfrancesco v. Town of Wrentham, 712 F.3d 634, 640 (1st Cir. 2013) (“[A] class-of-one 8 plaintiff bears the burden of showing that his comparators are similarly situated in all respects 9 relevant to the challenged government action.”). Here, Plaintiff does not allege any similarity 10 between himself and the other pretrial detainees, other than the fact of their being in custody at 11 the same institution. This is insufficient to set forth a “class-of-one” equal protection claim. 12 Accordingly, the undersigned recommends the District Court deny Plaintiff’s Fourteenth 13 Amendment equal protection claim. 14 B. Qualified Immunity on Sixth and Fourteenth Amendment Claims 15 A government official is entitled to qualified immunity under Section 1983 unless (1) the 16 official “violated a federal statutory or constitutional right, and (2) the unlawfulness of his 17 conduct was ‘clearly established at the time.’” District of Columbia v. Wesby, 583 U.S. 48 , 62-63 18 (2018) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)); Harlow v. Fitzgerald, 457 U.S. 19 800, 817 (1982). To demonstrate that a right was “clearly established” requires a showing that 20 the statutory or constitutional question was “beyond debate,” such that every reasonable official 21 would understand that what he is doing is unlawful. Wesby, 583 U.S. at 63 ; Vos v. City of 22 Newport Beach, 892 F.3d 1024, 1035 (9th Cir. 2018). 23 This standard is “demanding” and protects “all but the plainly incompetent or those who 24 knowingly violate the law.” Wesby, 583 U.S. at 63 (citing Malley v. Briggs, 475 U.S. 335 , 341 25 (1986)). “[A] court typically should identify a case where an officer acting under similar 26 circumstances as [the defendant] was held to have violated the constitutional right at issue.” S.B 27 v. County of San Diego, 864 F.3d 1010, 1015 (9th Cir. 2017)). “Even when no case is ‘directly 28 on point,’ courts may compare relevant factors to determine whether every reasonable officer 1 should have known the conduct in question was unlawful.” Anderson v. Virga, 2018 WL 2 1556806, *2 (E.D. Cal. Mar. 30, 2018) (citing Isayeva v. Sacramento Sheriff's Dep’t, 872 F.3d 3 938, 946-47 (9th Cir. 2017). The plaintiff bears the burden of establishing that the right alleged 4 was clearly established. Moran v. Washington, 47 F.3d 839, 844 (9th Cir. 1998). 5 As discussed above, Plaintiff fails to adequately allege Sixth and Fourteenth Amendment 6 claims against Defendants Marley, Quick, Followill, Cortes, Ramos, and Rivera. Thus, the Court 7 need not reach Defendants’ qualified immunity argument as to those claims. However, 8 Defendants argue that even if they violated Plaintiff’s constitutional rights, they are entitled to 9 qualified immunity on Plaintiff’s Sixth and Fourteenth Amendment claims because during the 10 relevant time, it was not clearly established that Plaintiff could pursue a Sixth Amendment right 11 to counsel claim for damages under section 1983, nor that he could proceed on a Fourteenth 12 Amendment equal protection “class of one” claim regarding “highly discretionary” correctional 13 decisions.11 (Doc. No. 16 at 15-17). 14 In his Opposition, Plaintiff does not address qualified immunity in any depth, stating only 15 that “[n]o immunity should be granted to any of the Defendants for their training found that their 16 conduct in this action violates “well-established statutory or constitutional rights which a 17 reasonable person would have known.” (Doc. No. 17 at 14). For reasons set forth below, the 18 Court agrees with Defendants that they are entitled to qualified immunity. 19 In his Opposition to the Motion to Dismiss, Plaintiff does not “point to any precedent 20 from the Supreme Court, [the Ninth Circuit], or ‘a robust consensus of cases of persuasive 21 authority” showing that a reasonable correctional officer would know that arbitrarily denying a 22 pretrial detainee’s criminal defense counsel’s requests for contact visitation would violate the 23 detainee’s Sixth Amendment right to counsel. Indeed, while such conduct has been found to 24 violate the First Amendment right to access the courts, see Ching, 895 F.2d at 610 , the Court is 25 not aware of any such well-established consensus of cases finding such conduct violates the Sixth — 26 — 11 The Court finds Defendants’ framing of the relevant rights somewhat misleading. The question is not 27 whether Defendants knew that Plaintiff’s claims might be barred by particular legal doctrines, but whether a reasonable government official would have been aware they were violating Plaintiff’s constitutional or 28 statutory rights. 1 Amendment. Nor does Plaintiff point to any relevant precedent establishing that reasonable 2 correctional officials would have known that denying a pretrial detainee contact visits while 3 permitting them for certain other detainees violates his equal protection rights. Because, as 4 discussed above, such decisions involve a substantial amount of discretion and depend on factors 5 specific to each individual detainee, a reasonable correctional official would not have believed 6 that denying a request as to a particular detainee ipso facto violated his Fourteenth Amendment 7 equal protection rights. 8 Thus, Plaintiff has failed to meet his burden of disputing Defendants’ entitlement to 9 qualified immunity. See Moran, 47 F.3d at 844 . Accordingly, the Court finds that Defendants 10 are entitled to dismissal on Plaintiff’s Sixth and Fourteenth Amendment claims on the additional 11 grounds of qualified immunity. 12 C. Whether Leave to Amend Should be Granted 13 If a motion to dismiss is granted, “[the] district court should grant leave to amend even if 14 no request to amend the pleading was made . . .” Henry A. v. Willden, 678 F.3d 991, 1005 (9th 15 Cir. 2012). However, leave to amend need not be granted if amendment would be futile or if the 16 plaintiff has failed to cure deficiencies despite repeated opportunities. See Mueller v. Aulker, 700 17 F.3d 1180, 1191 (9th Cir. 2012); Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 18 2010). 19 Here, Plaintiff has already been afforded an opportunity to amend his complaint. (See 20 Doc. Nos. 1, 8). Plaintiff has articulated the facts surrounding his alleged violations in ample 21 detail and the Court can discern no set of additional facts that could be alleged to cure the 22 deficiencies identified here. As the analysis above reflects, some of Plaintiff’s claims are simply 23 barred as a matter of law. Moreover, because the Court finds that Defendants are entitled to 24 qualified immunity on the Sixth and Fourteenth Amendment claims, there are no additional facts 25 Plaintiff could plead that could cure this deficiency. See Reed v. Nevada, 2021 WL 3722879 , at 26 *4 (D. Nev. Aug. 23, 2021) (finding leave to amend futile where defendants entitled to qualified 27 immunity). Thus, the Court finds that granting Plaintiff further leave to amend would be futile. 28 //// 1 ACCORDINGLY, it is ORDERED: 2 Defendants’ Motion for Judicial Notice (Doc. No. 16-2) is GRANTED, and the Court 3 takes judicial notice of the following cases: 4 1. Jackson v. Quick, et al. Case No. 1:19-cv-01591-EPG. 5 2. Jackson v. Khalib, et al. Case No. 1:20-cv-01567-KES-SKO 6 3. Jackson v. County of Madera, et al. Case No. 1:22-cv-00069-ADA-EPG 7 4. Jackson v. Perez et al. Case No. 1:24-cv-00034-KES-HBK 8 5. Jackson v. Rivera et al. Case No. 1:24-cv-00261-KES-BAM 9 6. Jackson v. Pouge et al. Case No. 1:24-cv-00585-JLT-EPG 10 It is further RECOMMENDED: 11 1. Defendants’ Motion to Dismiss (Doc. No. 16) be GRANTED IN PART with respect 12 to Plaintiff’s Sixth Amendment right to counsel claim, his Fourteenth Amendment 13 equal protection claim, and his First Amendment retaliation claim as to Defendants 14 Cortes and Rivera. 15 2. Defendants’ Motion to Dismiss (Doc. No. 16) be DENIED with respect to Plaintiff’s 16 First Amendment right to counsel/access to courts claim and First Amendment 17 retaliation claim as to Defendants Quick, Ramos, Marley, and Followill. 18 NOTICE TO PARTIES 19 These Findings and Recommendations will be submitted to the United States District 20 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636 (b)(l). Within 14 days 21 after being served with a copy of these Findings and Recommendations, a party may file written 22 objections with the Court. Id.; Local Rule 304(b). The document should be captioned, 23 “Objections to Magistrate Judge’s Findings and Recommendations” and shall not exceed fifteen 24 (15) pages. The Court will not consider exhibits attached to the Objections. To the extent a party 25 wishes to refer to any exhibit(s), the party should reference the exhibit in the record by its 26 CM/ECF document and page number, when possible, or otherwise reference the exhibit with 27 specificity. Any pages filed in excess of the fifteen (15) page limitation may be disregarded by 28 the District Judge when reviewing these Findings and Recommendations under 28 U.S.C. § 1 | 636(b)d)(C). A party’s failure to file any objections within the specified time may result in the 2 | waiver of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). — 3 — 4 Dated: _ November 26, 2024 Moo Zh. fared Hack 5 HELENA M. BARCH-KUCHTA ‘ UNITED STATES MAGISTRATE JUDGE — 8 — — 9 — — 10 — — 11 — — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 — — 21 —