Gadsden v. Gehris

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 RONALD EARL GADSDEN, Case No.: 20-cv-02258-WQH (DEB) [12] Plaintiff, 13 REPORT AND v. RECOMMENDATION ON [14] JOHN GEHRIS and MICHAEL DEFENDANT GEHRIS’S MOTION 15 TO DISMISS MCGRATH [16] [DKT. NO. 4] Defendants. [18] 19 This Report and Recommendation is submitted to United States District Judge 20 William Q. Hayes pursuant to 28 U.S.C. § 636 (b) and Civil Local Rules 72.1(e) and 21 72.3(e). 22 I. INTRODUCTION 23 Before the Court is Defendant John Gehris’s Motion to Dismiss. Dkt. No. 4-1. The 24 Motion contends Plaintiff’s Complaint fails to state a First Amendment retaliation claim 25 against Gehris. Id. at 2 . Plaintiff opposes the Motion (Dkt. No. 11), and Gehris replied 26 (Dkt. No. 18). For the following reasons, the Court recommends GRANTING Gehris’s 27 Motion to Dismiss. 28 /// 1 II. PROCEDURAL BACKGROUND 2 A. Plaintiff’s March 2020 Complaint Against Gehris 3 This is Plaintiff’s second case against Gehris. On March 12, 2020, Plaintiff filed his 4 first case against Gehris and three other defendants (the County of San Diego, Deputy 5 McGrath, and Sergeant Odell) under 42 U.S.C. § 1983 alleging violation of Plaintiff’s 6 Eighth and Fourteenth Amendment rights. See Gadsen v. County of San Diego, et al., Case 7 No. 20-cv-0470-WQH (DEB) (S.D. Cal.) (the “March 2020 Case”), Dkt. No. 1. Plaintiff 8 later argued the allegations in his Complaint (the “March 2020 Complaint”) also 9 constituted a violation of his First Amendment rights. Dkt. No. 11 (March 2020 Case) at 10 6–7. 11 The allegations arose out of an incident between Plaintiff and Deputy McGrath on 12 February 15, 2019. Dkt. No. 1 (March 2020 Case) at 3. Plaintiff claims McGrath denied 13 Plaintiff a video visit with his girlfriend. Id. Plaintiff further alleges McGrath sent Plaintiff 14 to the “hol[e]” when Plaintiff requested an Internal Affairs form to complain about 15 McGrath. Id. at 3 . 16 Specific to Gehris, the March 2020 Complaint alleged Gehris falsified a disciplinary 17 hearing in which Plaintiff was neither present nor informed of the charges. Id. at 4 . The 18 Complaint also alleges Gehris denied Plaintiff showers and placed him in a cell with a 19 suicidal, ex-military inmate. Id. at 4–5. 20 The Court dismissed Plaintiff’s Eight Amendment claim and Defendants County of 21 San Diego and Sergeant Odell on screening. Dkt. No. 3 (March 2020 Case) at 8–12. 22 On July 16, 2020, Defendants McGrath and Gehris filed a Motion to Dismiss 23 Plaintiff’s March 2020 Complaint. Dkt. No. 8-1 (March 2020 Case). The Court granted 24 both Defendants’ Motion to Dismiss Plaintiff’s Fourteenth Amendment claim, granted 25 Defendant Gehris’s Motion to Dismiss the First Amendment retaliation claim, and denied 26 Defendant McGrath’s Motion to Dismiss the First Amendment retaliation claim. Dkt. No. 27 15 (March 2020 Case) at 10–16. Regarding the First Amendment retaliation claim against 28 Gehris, the Court ruled “there are no allegations in the Complaint that when [Gehris] 1 allegedly falsified a disciplinary hearing he was aware the charges against Plaintiff were 2 false and a pretext for retaliation against him for asking Defendant McGrath for a complaint 3 form,” and the facts alleged “are insufficient to allege Defendant Gehris directly 4 participated in the allegedly retaliatory conduct.” Id. at 11–12. The Court gave Plaintiff 5 thirty days to file an amended complaint. Id. at 16 . 6 B. Plaintiff’s New Complaint 7 Plaintiff did not amend his March 2020 Complaint. Instead, on November 19, 2020, 8 he filed a new complaint (the “New Complaint”) in this case. Dkt. No. 1.1 Plaintiff’s New 9 Complaint alleges a First Amendment retaliation claim against Gehris and McGrath and 10 realleges the same operative facts as his March 2020 Complaint. Id. Regarding Gheris, the 11 New Complaint contains the following additional allegations: (1) official policy requires 12 approval of all disciplinary segregation actions by a disciplinary review officer; 13 (2) “Plaintiff is informed and on that basis alleges that GEHRIS was the disciplinary review 14 officer;” and (3) “GEHRIS was aware that there was no legitimate basis for holding 15 [Plaintiff] in the hole.” Id. at 8–9; see also Dkt. No. 11 at 5 (Plaintiff’s Opposition to 16 Gehris’s Motion to Dismiss identifying these as the new allegations against Defendant 17 Gehris). From these additional facts and the other circumstances realleged from the March 18 2020 Complaint (i.e., Plaintiff was housed in the Segregated Housing Unit (“SHU”) with 19 a suicidal inmate, with no notice of why he was placed there or when he would be released, 20 and no access to showers or clean clothing (Dkt. No. 1 at 6–8)), Plaintiff’s New Complaint 21 alleges the existence of an “inference that GEHRIS intentionally collaborated with 22 MCGRATH to retaliate against GADSDEN because of his request for an internal affairs 23 complaint form.” Id.at 8. 24 /// 25 /// [27] 1 The Court dismissed the March 2020 Complaint when Plaintiff filed a voluntary dismissal [28] 1 C. Gehris’s Motion to Dismiss 2 On February 19, 2021, Gehris filed this Motion to Dismiss. Dkt. No. 4.2 The Motion 3 argues the Court should dismiss Plaintiff’s New Complaint for many of the same reasons 4 it dismissed the March 2020 Complaint. Specifically, Gehris argues Plaintiff failed to plead 5 that Gehris took adverse action against Plaintiff, or that Gehris knew of Plaintiff’s request 6 for an Internal Affairs form and acted with retaliatory intent. Id. at 4–7. In addition, Gehris 7 contends the New Complaint does not sufficiently allege the absence of legitimate 8 correctional goals or “that any action taken by Gehris chilled Plaintiff’s exercise of his First 9 Amendment rights.” Id. at 7–8. 10 Plaintiff’s Opposition asserts that, with the additional facts identified above, 11 Plaintiff’s New Complaint adequately pleads a First Amendment retaliation claim against 12 Gehris. Dkt. No. 11 at 5–6. 13 Having reviewed the allegations in the New Complaint, the parties’ briefs, and the 14 Court’s Order dismissing Plaintiff’s March 2020 Complaint against Gehris, the Court finds 15 Plaintiff’s New Complaint does not state a plausible First Amendment retaliation claim 16 against Gehris and, therefore, recommends GRANTING Gehris’s Motion to Dismiss. 17 III. LEGAL STANDARDS 18 A. Motions to Dismiss 19 A complaint must contain “a short and plain statement of the claim showing that the 20 pleader is entitled to relief” to “give the defendant fair notice of what the . . . claim is and 21 the grounds upon which it rests.” Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 22 U.S. 544, 555 (2007). A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) 23 “tests the legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). 24 “A complaint may be dismissed as a matter of law for one of two reasons: (1) lack of a 25 cognizable legal theory or (2) insufficient facts under a cognizable legal claim.” Wilson v. [28] 1 Wal-Mart Stores, Inc., No. 05-cv-1216-BEN (BLM), 2005 WL 3477841 , at *1 (S.D. Cal. 2 Oct. 5, 2005) (quoting Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th 3 Cir. 1984)). The Court must “construe the pleadings in the light most favorable to the 4 nonmoving party.” Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). 5 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 6 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, [7] 556 U.S. 662, 678 (2009) (internal quotations omitted). For facial plausibility, the plaintiff 8 must plead “factual content that allows the court to draw the reasonable inference that the 9 defendant is liable for the misconduct alleged.” Id. The Court must accept well-pleaded 10 factual allegations as true when considering the motion, but it need not accept legal 11 conclusions cast as factual allegations or “threadbare recitals of the elements of a cause of 12 action, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678 ; Twombly, 550 13 U.S. at 555. “In sum, for a complaint to survive a motion to dismiss, the non-conclusory 14 ‘factual content,’ and reasonable inferences [drawn] from that content, must be plausibly 15 suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 16 962, 969 (9th Cir. 2009) (quoting Iqbal, 556 U.S. at 678 ). 17 B. First Amendment Retaliation Claims 18 “Prisoners have a First Amendment right to file grievances against prison officials 19 and to be free from retaliation for doing so.” Watison v. Carter, 668 F.3d ll08, 1114 (9th 20 Cir. 2012). “Within the prison context, a viable claim of First Amendment retaliation 21 entails five basic elements: (1) An assertion that a state actor took some adverse action 22 against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action 23 (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not 24 reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559 , 25 567–68 (9th Cir. 2005). “The adverse action need not be an independent constitutional 26 violation.” Watison, 668 F.3d at 1114 (citing Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 27 1995)); see also Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001) (“[A] retaliation 28 claim may assert an injury no more tangible than a chilling effect on First Amendment 1 rights.”). To establish retaliatory motive, the Complaint must plead a causal connection 2 between the adverse action and protected conduct. Watison, 668 F.3d at 1114–15; see also 3 Williams v. Wood, 223 F. App’x 670, 671 (9th Cir. 2007) (affirming the district court’s 4 dismissal of a plaintiff’s complaint where vague and conclusory claims of retaliatory 5 conduct by prison officials . . . lacked factual support demonstrating a causal link between 6 the civil actions . . . [the plaintiff] filed and the denial of [the plaintiff’s request] of a transfer 7 . . . .”). 8 IV. ANALYSIS 9 In the Order Granting in Part and Denying in Part Defendants’ Motion to Dismiss 10 Plaintiff’s March 2020 Complaint, the Court ruled Plaintiff pleaded facts that satisfied the 11 protected conduct, adverse action, chill, and lack of a legitimate correctional goal elements 12 of a First Amendment retaliation claim. Dkt. No. 15 (March 2020 Case) at 9–10. Because 13 Plaintiff’s New Complaint realleges facts the Court previously found sufficient to satisfy 14 those elements, the Court evaluates only whether Plaintiff’s New Complaint pleads 15 additional facts that remedy the deficiencies the Court found in Plaintiff’s March 2020 16 Complaint (i.e., “There are no factual allegations in the Complaint which plausibly allege 17 Defendant Gehris knew the charges were false and retaliatory, and the allegations in the 18 Complaint are nonexistent with respect to whether Defendant Gehris acted with a 19 retaliatory motive when he allegedly ‘falsified’ the disciplinary hearing.”). Id. at 12. 20 In his Opposition to Gehris’s Motion to Dismiss, Plaintiff argues the following 21 additional allegations in the New Complaint adequately plead that Gehris knew about 22 Plaintiff’s protected conduct and retaliated against Plaintiff for engaging in that conduct: [23] 24 Defendant Gehris was the disciplinary review officer, was in charge of the hole, was aware that there was no legitimate basis for holding Gadsden in the [25] hole, and knew that none of the normal procedures around a transfer to 26 disciplinary segregation had been followed, but nevertheless approved confining Gadsden in that hole and continued to keep him there. A reasonable [27] inference from the fact that Gehris personally approved confining Gadsden in 28 the hole despite the failure to follow normal procedures around the use of 1 disciplinary segregation and the lack of any legitimate basis for holding him there, plaintiff alleged, was that Defendant Gehris ‘intentionally collaborated [2] with MCGRATH’ to punish Gadsden for requesting the internal affairs form. [3] 4 Dkt. No. 11 at 3. 5 Consistent with this summary, Plaintiff’s New Complaint alleges Gehris was “in 6 charge of the operation of ‘the hole’ and supervised” the staff working there. Dkt. No. 1 at 7 5. Plaintiff alleges he “repeatedly asked deputies why he was being kept there and when 8 he would be released.” Id. The deputies either ignored Plaintiff or replied “that Sergeant 9 GEHRIS was aware of it.” Id. Plaintiff claims he also spoke to Gehris directly and asked 10 why he was being held and “GEHRIS replied ‘I’ll look into it,’ but never provided any 11 actual information to GADSDEN.” Id. at 5–6. Plaintiff alleges Gehris was the disciplinary 12 review officer and “GEHRIS was aware that there was no legitimate basis for holding 13 GADSDEN in the hole.” Id. at 8–9. Plaintiff alleges the “unusual [and improper] 14 circumstances” of his confinement exacerbated his discomfort and fear and, therefore, 15 “support the inference that GEHRIS disregarded GBDF’s own policies and intentionally 16 collaborated with MCGRATH to punish GADSDEN for requesting an internal affairs 17 complaint.” Id. at 9. 18 The Court finds these additional allegations do not plausibly allege Gehris took an 19 adverse action against Plaintiff in retaliation for Plaintiff’s engagement in protected activity 20 (i.e., that Gehris knew Plaintiff intended to file an Internal Affairs complaint against 21 McGrath and retaliated against Plaintiff by approving his transfer to the SHU without a 22 legitimate basis). Plaintiff’s allegations that Gehris was in charge of the SHU and 23 supervised the SHU staff are insufficient bases for personal liability under § 1983. See 24 Iqbal, 556 U.S. at 676 (“Because vicarious liability is inapplicable to . . . § 1983 suits, a 25 plaintiff must plead that each government official-defendant, through the official’s own 26 individual actions, has violated the Constitution.”). Plaintiff’s allegation that he questioned 27 Gehris about the reasons for his placement in the SHU and Gehris responded “I’ll look into 28 it” also does not plausibly suggest Gehris knew about Plaintiff’s intent to file an Internal 1 Affairs complaint against McGrath and conspired with McGrath to retaliate against 2 Plaintiff for engaging in that conduct. See Dixon v. O’Connor, 542 F. App’x 561, 562 (9th 3 Cir. 2013) (affirming dismissal where plaintiff’s claims against the supervisory defendants 4 “failed to allege facts demonstrating their personal involvement in the alleged violations or 5 a causal connection between their conduct and the alleged violations.”); Hammler v. 6 Alvarez, No. 18-cv-326-AJB (WVG), 2019 WL 422575 , at *9 (S.D. Cal. Feb. 4, 2019) 7 (recommending dismissal in part for failure to allege the defendant “ever knew that [the] 8 [p]laintiff filed a grievance against him.”), report and recommendation adopted, 2019 WL 9 3315567 (July 24, 2019). 10 Plaintiff’s allegation that Gehris approved Plaintiff’s transfer to the SHU knowing 11 there was no legitimate basis for doing so and without following normal procedures are 12 conclusory and undermined by the Incident Report attached to Plaintiff’s March 2020 13 Complaint.3 The Incident Report states: (1) on February 18, 2019, McGrath transferred 14 Plaintiff to “Disciplinary Isolation” because he was “Disrespect[ful] to Staff”; engaged in 15 “Boisterous Activity”; and “Interfere[d] with Jail Operations”; and (2) on February 19, 16 2019, Odell approved the transfer. Id. This Incident Report, which Plaintiff attached to his 17 March 2020 Complaint (Dkt. No. 1 (March 2020 Complaint)), Ex. A at 9–11)) and [20] 3 The Court GRANTS Gehris’s Request for Judicial Notice of the Incident Report (Dkt. 21 No. 4-2 at 1–2), which is attached as Exhibit A to Plaintiff’s March 2020 Complaint. See Rodriguez v. Disner, 688 F.3d 645 , 660 n.11 (9th Cir. 2012) (taking judicial notice of briefs [22] filed in related litigation); Corder v. Gates, 104 F.3d 247 , 248 n.1 (9th Cir. 1996) (taking 23 judicial notice of briefs in records filed as part of two prior appeals). The Court also considers the Incident Report on this Motion to Dismiss because Plaintiff has incorporated [24] it by reference in his New Complaint (Dkt. No. 1 at 6–8). See No. 84 Emp.-Teamster Joint 25 Council Pension Tr. Fund v. Am. W. Holding Corp., 320 F.3d 920 , 925 n.2 (9th Cir. 2003) (considering documents referenced in the plaintiff’s complaint in deciding whether the [26] defendant’s motion to dismiss was properly granted); Tellabs, Inc. v. Makor Issues & Rts., 27 Ltd., 551 U.S. 308, 322 (2007) (courts may consider documents incorporated by reference into a plaintiff’s complaint when ruling on motions to dismiss). [28] 1 incorporates by reference in his New Complaint (Dkt. No. 1 at 6–8) sets forth a facially 2 legitimate basis for Plaintiff’s transfer to the SHU upon which a reviewing supervisor could 3 reasonably rely. See Hartsfield v. Nichols, 511 F.3d 826, 831 (8th Cir. 2008) (“[A] report 4 from a correctional officer, even if disputed by the inmate and supported by no other 5 evidence, legally suffices as ‘some evidence’ upon which to base a prison disciplinary 6 violation, if the violation is found by an impartial decisionmaker.”). The Incident Report 7 (which lists Odell as the supervisor approving the transfer) also contradicts Plaintiff’s 8 conclusory “information and belief” allegation that “GEHRIS was the disciplinary review 9 officer” who approved Plaintiff’s “disciplinary separation action[],” and, “[t]hus, GEHRIS 10 was aware that there was no legitimate basis for holding [Plaintiff] in the hole.” Id. at 8. 11 The Incident Report, therefore, provides additional reasons for the Court to find Plaintiff’s 12 allegations against Gehris are insufficient to plead a plausible First Amendment retaliation 13 claim. See Steckman v. Hart Brewing, Inc., 143 F.3d 1293 , 1295–96 (9th Cir. 1998) (courts 14 “are not required to accept as true conclusory allegations which are contradicted by 15 documents referred to in the complaint.”). 16 In sum, the Court has reviewed all facts alleged in Plaintiff’s New Complaint and 17 concludes they do not plausibly allege Gehris’s personal participation in a scheme to 18 retaliate against Plaintiff for seeking an Internal Affairs complaint against McGrath. The 19 Court, therefore, recommends GRANTING Gehris’s Motion to Dismiss. Because the 20 Court cannot foreclose the possibility that Plaintiff can allege additional facts curing the 21 deficiency in his New Complaint, the Court recommends GRANTING Plaintiff leave to 22 amend within thirty (30) days from the date this Order is adopted or becomes final. 23 V. CONCLUSION 24 For the foregoing reasons, IT IS HEREBY RECOMMENDED that the Court issue 25 an Order: (1) approving and adopting this Report and Recommendation; and (2) 26 GRANTING Defendant Gehris’s Motion to Dismiss, with leave to amend. 27 /// 28 /// 1 IT IS ORDERED that on or before August 17, 2021, any party to this action may 2 || file written objections with the Court and serve a copy on all parties. The document should 3 || be captioned “Objections to Report and Recommendation.” 4 IT IS FURTHER ORDERED that any reply to the objections shall be filed with 5 ||the Court and served on all parties by August 23, 2021. 6 The parties are advised that failure to file objections within the specified time may 7 || waive the right to raise those objections on appeal of the Court’s order. Turner v. Duncan, 8 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153, 1156 (9th Cir. 1991). [9] 10 || Dated: August 3, 2021 — whoa, Honorable Daniel E. Butcher United States Magistrate Judge