Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER D. WARSAW, Case No.: 25-cv-1262-JO-DDL 12 Plaintiff, REPORT AND 13 v. RECOMMENDATION FOR ORDER GRANTING 14 CAPTAIN J. GARCIA, CDCR A.W. DEFENDANTS’ MOTION TO 15 - A MAY, STAFF A. PEREZ, DISMISS Defendants. 16 [Dkt. No. 25] 17 18 The undersigned respectfully submits this Report and Recommendation to 19 United States District Judge Jinsook Ohta pursuant to 28 U.S.C. § 636(b) and Civil 20 Local Rule 72.3. Plaintiff Christopher D. Warsaw (“Plaintiff”), an inmate at Richard 21 J. Donovan Correctional Facility (“RJD”), is proceeding pro se in this civil rights 22 action. Before the Court is a Motion to Dismiss Plaintiff’s First Amended Complaint 23 by Defendants A. Perez, J. Garcia, and A. May (collectively “Defendants”). Dkt. 24 No. 25-1 (“MTD”). 25 For the reasons stated below, the undersigned RECOMMENDS that the 26 District Court GRANT Defendants’ Motion to Dismiss without leave to amend. 27 / / / 28 / / / 1 I. 2 BACKGROUND 3 A. Procedural History 4 On February 13, 2025, Plaintiff filed his initial complaint in the Superior Court 5 of California, County of San Diego. Dkt. No. 1-4 at 13-39. Defendants removed 6 the action to this Court on May 16, 2025. Id. 7 On May 29, 2025, Defendants filed a Motion to Dismiss Plaintiff’s complaint 8 for Failure to State a Claim. Dkt No. 2. 9 On December 29, 2025, Judge Leshner issued a Report and 10 Recommendation for Order Granting Defendants’ Motion to Dismiss with Leave 11 to Amend. Dkt. No. 15. 12 On February 27, 2026, Judge Ohta issued an Order Adopting the Report and 13 Recommendation in its entirety. Dkt. No. 22. 14 On March 20, 2026, Plaintiff filed a First Amended Complaint. Dkt. No. 24. 15 On April 9, 2026, Defendants filed the instant Motion to Dismiss Plaintiff’s 16 Claim for Intentional Infliction of Emotional Distress (“IIED”) for Failure to State a 17 Claim. Dkt. No. 25. 18 On May 13, 2026, Plaintiff filed an opposition to Defendants’ MTD. Dkt. No. 19 34 (“Oppo.”). Defendants replied on June 15, 2026. Dkt. No. 36 (“Reply”). 20 B. Complaint Allegations 21 Plaintiff’s First Amended Complaint alleges that he was denied access to the 22 courts when he was preparing a habeas petition based on false evidence and that 23 Defendants intentionally inflicted emotional and physical distress upon him. Dkt. 24 No. 25 (“FAC”). Plaintiff alleges that he requested Officer Paul Devlin’s body worn 25 camera (“BWC”) footage from a shooting incident involving Plaintiff because 26 Officer Devlin provided false testimony at Plaintiff’s trial. Id. at 2. Plaintiff intended 27 to use the evidence to demonstrate the misconduct surrounding his case for his 28 habeas petition. Id. Plaintiff requested the BWC footage from the Inglewood 1 Police Department, and Lieutenant Scott Collins responded and sent the footage. 2 Id. at 3-4, 13. Plaintiff alleges that Defendants denied him access to the footage 3 once it arrived and that Defendant A.W. May “was full[y] aware and determine[d] 4 not to let Plaintiff have access to the CD footage.” Id. at 5, 8. Plaintiff notes that 5 Defendants’ refusal to provide the footage prejudiced him and prevented him from 6 accessing the courts. Id. at 11. 7 Plaintiff further alleges that Defendants intentionally inflicted physical and 8 emotional distress upon him due to their “extreme and outrageous conduct.” Id. at 9 16. Specifically, because Defendants knew that Plaintiff had a right “to 10 communicate with all city, county, state and federal official[s] confidentially, 11 including receiving legal mail from Lt. Scott Collins of the Inglewood Police Dept.,” 12 and falsely identified the video footage as contraband, Defendants’ behavior was 13 “extreme and outrageous.” Id. Plaintiff notes that he was never disciplined for 14 receiving contraband materials and that Defendants knew their actions were “more 15 than likely with a high probability of causing/inflicting distress.” Id. at 17. Plaintiff’s 16 emotional distress damages include humiliation, suffering, pain, anger, frustration, 17 and disgust. Id. Plaintiff does not plan to have anyone testify as to his emotional 18 distress and is seeking $300,000 in damages. Id. 19 C. Parties’ Positions 20 Defendants argue that: 21 Plaintiff fails to state a claim for which relief may be granted as to his state law claims for intentional infliction of emotional distress because 22 there are no allegations showing Defendants acted with extreme and 23 outrageous conduct with the intention of causing, or reckless disregard of the probability of causing, emotional distress. 24 25 Dkt. No. 25 at 2. 26 Plaintiff contends he adequately pleads that Defendants’ behavior 27 constituted extreme and outrageous conduct, especially given the power 28 imbalance between Plaintiff and Defendants. Oppo. at 1-2. Plaintiff further 1 explains that the behavior was outrageous because (1) Plaintiff’s confidential 2 communications with Lieutenant Collins were breached, (2) the BWC footage was 3 returned before Plaintiff could exhaust his administrative remedies, (3) Defendant 4 A. May smirked at Plaintiff and said he had sixty days to respond when Plaintiff 5 asked why white inmates were allowed to view their discovery, but he was not, (4) 6 the May 24, 2026 Office of Appeal decision contained lies about the ability to view 7 the footage, (5) Defendants improperly labeled the footage as contraband, and (6) 8 Defendants conceded that they violated Plaintiff’s right to access the courts.1 Id. 9 at 3-4. Plaintiff further contends Defendants’ behavior was intended to inflict 10 emotional distress and that he did in fact suffer “mental anguish, humiliation, 11 emotional distress, anger, [and] frustration.” Id. at 5. Finally, Plaintiff contends 12 that the cause of his emotional distress is directly linked to Defendants’ outrageous 13 conduct. Id. at 7. 14 Defendants reply that Plaintiff has failed to identify alleged actions that are 15 extreme and outrageous. Reply at 1. Defendants note that Plaintiff does not allege 16 that Defendants prevented him from communicating with Lieutenant Collins or 17 disclosed Plaintiff’s communications with Lieutenant Collins to others. Id. at 2-3. 18 Defendants further note that Plaintiff was provided with instructions on how he 19 could arrange to see the BWC footage and that even if Defendants lied to Plaintiff 20 as alleged, those lies “cannot support a claim for intentional infliction of emotional 21 distress because those actions are not extreme and outrageous.” Id. at 4. 22 /// 23 /// 24 25 1 Plaintiff filed his opposition to the MTD prior to receiving the Court’s order 26 denying his Motion [to] Accept Concede by Defendants of Plaintiff Claim Access 27 to the Court" [see Dkt. No. 28], and Motion to Compel Defendants to Answer [see Dkt. No. 32]. Dkt. No. 33. 28 1 II. 2 LEGAL STANDARDS 3 A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) 4 “tests the legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th 5 Cir. 2001).2 To survive a motion to dismiss, a complaint must plead “enough facts 6 to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 7 550 U.S. 544, 570 (2007); Fed. R. Civ. P. 12(b)(6). “A claim has facial plausibility 8 when the plaintiff pleads factual content that allows the court to draw the 9 reasonable inference that the defendant is liable for the misconduct alleged.” 10 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The court must “accept all allegations 11 of material fact in the complaint as true and construe them in the light most 12 favorable to the non-moving party,” Cedars-Sinai Med. Ctr. v. Nat’l League of 13 Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007), but need not “accept as 14 true allegations that are merely conclusory, unwarranted deductions of fact, or 15 unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F. 3d 1049, 1055 (9th 16 Cir. 2008). 17 Pleadings drafted by pro se inmates such as Plaintiff are “held to less 18 stringent standards than formal pleadings drafted by lawyers” and the Court must 19 construe them “liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 20 Nevertheless, the complaint “must allege with at least some degree of particularity 21 overt facts which defendant[s] engaged in to support plaintiff’s claim,” Herrejon v. 22 Ocwen Loan Servicing, LLC, 980 F. Supp. 2d 1186, 1196 (E.D. Cal. 2013), and 23 the Court must not “supply essential elements of the claim that were not initially 24 pled.” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997). 25 The Court may consider material which is properly submitted as part of the 26 27 2 Unless otherwise noted, all internal quotations marks, ellipses, brackets, 28 1 complaint, such as an attached exhibit or a document incorporated by reference 2 into the complaint, without converting the motion to dismiss into a motion for 3 summary judgment. Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 4 (9th Cir. 1995). However, the Court “may not look beyond the complaint to a 5 plaintiff’s moving papers, such as a memorandum in opposition to a defendant’s 6 motion to dismiss.” Schneider v. California Dep’t of Corr., 151 F.3d 1194, 1197 n.1 7 (9th Cir. 1998). 8 Where a complaint does not survive a Rule 12(b)(6) analysis, the Court will 9 grant leave to amend unless it determines that no modified contention “consistent 10 with the challenged pleading…[will] cure the deficiency” making amendment futile. 11 DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655,658 (9th Cir. 1992) (internal 12 citation omitted); see Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003). Before 13 dismissing a pro se complaint the district court must provide a pro se litigant notice 14 of the deficiencies within the complaint to ensure that the litigant uses the 15 opportunity to amend effectively. Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 16 1992). 17 III. 18 DISCUSSION 19 “Under California law, a prima facie case of IIED requires the following: 20 (1) extreme and outrageous conduct by the defendant; (2) with the intention of 21 causing, or reckless disregard of the probability of causing emotional distress; 22 (3) the plaintiff’s suffering severe or extreme emotional distress; and (4) actual and 23 proximate causation of the emotional distress by defendant’s outrageous conduct.” 24 Victoria v. City of San Diego, 326 F. Supp. 3d 1003, 1021 (S.D. Cal. 2018). The 25 conduct must be “so extreme and outrageous as to go beyond all possible [bounds] 26 of decency, and to be regarded as atrocious, and utterly intolerable in a civilized 27 community.” Tanielian v. Guerrero, No. 1:23-CV-01384-KES-CDB, 2025 WL 28 3292369, at *4 (E.D. Cal., Nov. 26, 2025). 1 After considering the FAC’s allegations in the light most favorable to Plaintiff, 2 the Court concludes Plaintiff has failed to allege sufficient facts in support of the 3 elements for an IIED claim. 4 A. Extreme and Outrageous Conduct 5 “A defendant's conduct is considered to be outrageous if it is so extreme as 6 to exceed all bounds of that usually tolerated in a civilized community.” Crouch v. 7 Trinity Christian Ctr. of Santa Ana, Inc., 39 Cal. App. 5th 995, 1007 (2019). 8 Plaintiff’s allegations of extreme and outrageous conduct include Defendants lying 9 and conspiring to deny Plaintiff access to the BWC footage, violating policies that 10 permitted Plaintiff to correspond with Lieutenant Collins, ignoring Plaintiff’s 11 question regarding the ability of white inmates to review legal materials on CDs 12 and thumb drives, identifying the BWC footage as illegal contraband instead of 13 legal materials, and incorrectly stating that Plaintiff would have been unable to view 14 the footage had it been given to him. FAC at 16-19; Oppo. 15 Even if these allegations sufficiently allege the defendants denied Plaintiff 16 access to the courts – which is Plaintiff’s first cause of action that Defendants do 17 not move to dismiss – the alleged conduct is not “so extreme as to exceed all 18 bounds of that usually tolerated in a civilized community.” Crouch, 39 Cal. App. 19 5th at 1007. See, e.g., Kohut v. Allison, No. 1:20-cv-01584-JLT-CDB (PC), 2025 20 WL 1370288, at *13 (E.D. Cal. May 9, 2025) (“Refusing or failing to properly handle 21 Plaintiff's mail and engaging in retaliatory behavior does not amount to conduct so 22 extreme is exceeds all bounds of decency to be atrocious and utterly intolerable in 23 a civilized community.”); Gibson v. Dzurenda, No. 3:18-cv-00190-MMD-WGC, 24 2020 WL 8611152, at *6 (D. Nev. Aug. 28, 2020) (permitting plaintiff to proceed on 25 First Amendment claim that correctional officer improperly opened his legal mail 26 outside of his presence, which resulted in a leak of Plaintiff's confidential PREA 27 report and subjected Plaintiff to be a target for retaliatory assault, but dismissing 28 related IIED claim for lack of extreme and outrageous conduct); Novak v. Merced 1 Police Department, No. 1:13-cv-01402-BAM, 2016 WL 2984278, at *13 (E.D. Cal. 2 May 23, 2016) (“fraudulent misrepresentations, without more, are not sufficiently 3 outrageous to support a cause of action for intentional infliction of emotional 4 distress”). 5 B. Intent to Cause or Reckless Disregard of Causing Emotional Distress 6 Plaintiff has not alleged that Defendants acted with the intent to cause 7 emotional distress or in reckless disregard of whether their conduct would do so. 8 Plaintiff alleges that “Defendants’ actions were intentional with full knowledge that 9 there [sic] acts would more than likely with a high probability of causing/inflicting 10 emotional distress upon Plaintiff.” FAC at 17. Plaintiff argues that Defendants’ 11 behavior “proves intent as to defendants’ motive & determination with reckless 12 disregard of the probability of inflicting emotional distress as a result of their bad 13 actions of violating Plaintiff’s rights.” Oppo. at 5. 14 “Conclusory, ‘threadbare’ allegations that merely recite the elements of a 15 cause of action will not defeat a motion to dismiss.” Victoria, 326 F. Supp. 3d at 16 1021. The FAC’s general statements combined with the lack of extreme and 17 outrageous conduct are insufficient to satisfy the second element required for IIED. 18 Plaintiff further argues that Defendants’ actions prove an intent to inflict distress 19 because Defendants knew their actions were hindering Plaintiff’s pursuit of his 20 state habeas claim which would ultimately lead to Plaintiff remaining under their 21 authority and supervision. Id. at 10. However, Plaintiff does not allege any facts 22 in support of his allegation that Defendants knew that their actions were hindering 23 his habeas petition and engaged in those actions intending to cause severe 24 emotional distress. See, e.g., Black v. City of Blythe, 562 F. Supp. 3d 820, 832 25 (C.D. Cal. 2022) (granting motion to dismiss IIED claim where plaintiff “fails to 26 allege that the City's officers intended to cause emotional distress” and plaintiff’s 27 “conclusory statements that their conduct was ‘intentionally harmful’ and 28 undertaken ‘with the intent of, or reckless’ are inadequate”). 1 C. Suffering Severe or Extreme Emotional Distress 2 Plaintiff does not allege that he has suffered severe or extreme emotional 3 distress and, therefore, Plaintiff does not allege facts satisfying element three of a 4 prima facie case of IIED. Oppo. at 5. Plaintiff alleges that he has experienced 5 mental anguish, humiliation, emotional distress, anger, and frustration, but also 6 notes that his emotional distress is “garden-variety[,]” his mental state should not 7 be placed in controversy, and he will not call any experts to testify regarding his 8 IIED claim. Id. at 5-6 (“Plaintiff assert[s] Garden-Variety of the kind any inmate 9 would experience/suffer in prison” when their rights are violated.); see also FAC at 10 17; Hupp v. San Diego Cnty., No. 12cv0492 GPC(RBB), 2013 WL 5408644, at *7 11 (S.D. Cal. Sept. 25, 2013) (“By alleging a claim for [IIED] and seeking damages for 12 mental and emotional injuries, Hupp is seeking more than garden-variety 13 emotional distress damages.”); Lira v. Chipotle Mexican Grill, Inc., No. 17-cv- 14 02588-JSW (KAW), 2018 WL 2128707, at *3 (N.D. Cal. May 9, 2018) (“In turn, 15 garden-variety emotional distress has been defined as ordinary or commonplace 16 emotional distress or that which is simple or usual. ... Emotional distress that is not 17 garden-variety may be complex, such as that resulting in a specific psychiatric 18 disorder, or where there is a claim for [IIED].”); Dixon v. Partida, No. 22-CV-04461- 19 AMO, 2025 WL 3141106, at *11 (N.D. Cal., Nov. 10, 2025) (“Severe emotional 20 distress means emotional distress of such substantial ... or enduring quality that 21 no reasonable [person] in civilized society should be expected to endure it.”) 22 D. Actual and Proximate Causation of the Emotional Distress 23 As explained above, Plaintiff does not sufficiently allege facts supporting 24 outrageous conduct by Defendants nor does he allege facts showing he suffered 25 extreme emotional distress. Because no outrageous conduct or extreme 26 emotional distress has been alleged, Plaintiff also has not alleged facts 27 demonstrating the actual and proximate causation of extreme emotional distress 28 by Defendants’ alleged outrageous conduct. 1 E. Conclusion 2 Because Plaintiff has failed to allege facts in support of his IIED claim and 3 cannot allege extreme and outrageous behavior based on the conduct described, 4 Defendant’s Motion to Dismiss Plaintiff’s IIED claim against all Defendants should 5 be granted without leave to amend. “Dismissal without leave to amend is 6 appropriate only when the Court is satisfied that the deficiencies of the complaint 7 could not possibly be cured by amendment.” Sanchez v. CoreCivic, Inc., No. 3:25- 8 CV-1944-JES-BLM, 2025 WL 2962441, at *2 (S.D. Cal., Oct. 20, 202). 9 Defendants filed a motion to dismiss Plaintiff’s initial complaint [see Dkt. No. 2] that 10 was granted on February 27, 2026. Dkt. No. 22. The motion was dismissed with 11 leave to amend, and Plaintiff was given the opportunity to amend his complaint. 12 Id.; see also Dkt. No. 15 (Report and Recommendation for Order Granting 13 Defendants’ Motion to Dismiss with Leave to Amend); FAC. Because Plaintiff has 14 been given two opportunities to allege an IIED claim and is unable to do so, the 15 Court finds that further amendment would be futile and RECOMMENDS that 16 Defendant’s Motion to Dismiss Plaintiff’s IIED claim against all Defendants be 17 GRANTED WITHOUT LEAVE TO AMEND. 18 IV. 19 CONCLUSION AND RECOMMENDATION 20 For all the foregoing reasons, IT IS HEREBY RECOMMENDED that the 21 District Judge issue an Order: 22 (1) Approving and adopting this Report and Recommendation; and 23 (2) Granting Defendants’ Motion to Dismiss [Dkt. No. 25] and holding that 24 Plaintiff’s intentional infliction of emotional distress claim is dismissed 25 without leave to amend. 26 IT IS HEREBY ORDERED that any written objections to this Report must be 27 filed with the Court and served on all parties no later than August 24, 2026. The 28 document should be captioned “Objections to Report and Recommendation.” 1 IT IS FURTHER ORDERED that any reply to the objections shall be filed 2 ||with the Court and served on all parties no later than September 4, 2026. The 3 parties are advised that the failure to file objections within the specified time may 4 || waive the right to raise those objections on appeal of the Court’s order. See Turner 5 || v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). 6 || IT IS SO ORDERED. 7 ||Dated: August 3, 2026 ait ° Hon.DavidD.Leshner sits 10 United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28