Mitchell v. Ryer

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOHN E. MITCHELL, Case No.: 23-CV-661-TWR (MSB) CDCR #H38255, 12 ORDER SCREENING COMPLAINT Plaintiff, 13 PURSUANT TO 28 U.S.C. § 1915A vs. 14 M. RYER, Corrections Sergeant.; 15 D. MORRIS, Corrections Counselor; 16 MCWAY, Corrections Officer; F. SALAS, Corrections Officer; S. ESHO, 17 Corrections Officer; J. VALENCIA, 18 Corrections Officer; N. CANELA, Licensed Vocational Nurse; WADDLE, 19 Corrections Lieutenant; J. DURAN, 20 Corrections Officer; A. SELL, Corrections Lieutenant; M. ARREZOLA, Corrections 21 Officer; D. STANLEY, Corrections 22 Sergeant, 23 Defendants. 24 25 26 Presently before the Court is Plaintiff John Mitchell’s civil rights Complaint filed 27 pursuant to 42 U.S.C. § 1983. (ECF No. 1, “Compl.”) Plaintiff is currently incarcerated 28 / / / 1 at Mule Creek State Prison, is proceeding pro se, and has paid the civil filing fee. (See 2 ECF No. 3.) He alleges that while he was incarcerated at R.J. Donovan Correctional 3 Facility (“RJD”), Defendants—various RJD and Kern Valley State Prison personnel— 4 violated his First, Eighth, and Fourteenth Amendment rights. (See Compl. at 2–3, 11–21.) 5 I. Legal Standards 6 A. Screening Pursuant to 28 U.S.C. § 1915A 7 28 U.S.C. § 1915A requires “early review—before docketing [] or [] as soon as 8 practicable after docketing—for all complaints in which a prisoner seeks redress from a 9 governmental entity or officer or employee of a governmental entity.” Chavez v. Robinson, 10 817 F.3d 1162, 1168 (9th Cir. 2016) (internal quotation marks omitted). The mandatory 11 screening provisions of § 1915A apply to all prisoners, no matter their fee status, who sue 12 a governmental entity, officer, or employee. See, e.g., Resnick v. Hayes, 213 F.3d 443, 13 446–47 (9th Cir. 2000). “On review, the court shall . . . dismiss the complaint, or any 14 portion of the complaint,” if it “(1) is frivolous, malicious, or fails to state a claim upon 15 which relief may be granted; or (2) seeks monetary relief from a defendant who is immune 16 from such relief.” Olivas v. Nevada ex rel. Dep’t of Corr., 856 F.3d 1281, 1283 (9th Cir. 17 2017) (quoting 28 U.S.C. § 1915A(b)). 18 “Failure to state a claim under § 1915A incorporates the familiar standard applied in 19 the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” 20 Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). Rule 12(b)(6) requires that a 21 22 1 When Plaintiff filed his Complaint, he was housed at California State Prison, Sacramento. (Compl. 23 at 1.) From the Court’s review of the California inmate locator, Plaintiff is now housed at Mule Creek State Prison. See CDCR Inmate Locator, https://inmatelocator.cdcr.ca.gov/Details.aspx?ID=H38255 (last 24 visited Aug. 21, 2023); see also McCoy v. Le, No. 3:21-cv-1755-BAS-LL, 2021 WL 5449004, at *1 n.2 25 (S.D. Cal. Nov. 22, 2021) (noting the Court may take judicial notice of public records available on online inmate locators). Plaintiff has not filed a notice of a change of address as he is required to do. See S.D.Cal. 26 CivLR 83.11(b). Plaintiff is warned that “[i]f mail directed to a pro se plaintiff by the Clerk at the plaintiff’s last designated address is returned by the Post Office, and if such plaintiff fails to notify the 27 Court and opposing parties within 60 days thereafter of the plaintiff’s current address, the Court may dismiss the action without prejudice for failure to prosecute.” Id. 28 1 complaint “contain sufficient factual matter, accepted as true, to state a claim to relief that 2 is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation 3 marks omitted); Wilhelm, 680 F.3d at 1121. Detailed factual allegations are not required, 4 but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 5 conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “Determining whether a 6 complaint states a plausible claim for relief [is] . . . a context-specific task that requires the 7 reviewing court to draw on its judicial experience and common sense.” Id. The “mere 8 possibility of misconduct” or “unadorned, the defendant-unlawfully-harmed me 9 accusation[s]” fall short of meeting this plausibility standard. Id.; see also Moss v. U.S. 10 Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). 11 B. 42 U.S.C. § 1983 12 “Section 1983 creates a private right of action against individuals who, acting under 13 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 14 263 F.3d 1070, 1074 (9th Cir. 2001). “To establish § 1983 liability, a plaintiff must show 15 both (1) deprivation of a right secured by the Constitution and laws of the United States, 16 and (2) that the deprivation was committed by a person acting under color of state law.” 17 Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 18 II. Plaintiff’s Allegations 19 Plaintiff alleges that in preparation for an upcoming parole hearing, he asked 20 Defendant Morris to update his file with his college records and rehabilitation efforts. 21 (Compl. at 5.) When Morris failed to do so, Plaintiff told her he was going to file a federal 22 lawsuit and a staff complaint against her. (Id.) According to Plaintiff, Morris told 23 Defendants Salas and Esho about Plaintiff’s intentions so they “entered his cell and 24 destroyed pictures, and left legal documents in disarray.” (Id.) When he asked them why 25 they had done that, Plaintiff claims Esho said, “Shut the fuck up you bitch.” (Id.) When 26 Plaintiff told Esho he was going to report his behavior to the program office, Esho called 27 him a “rat” and threatened him with physical harm. (Id.) 28 / / / 1 Plaintiff reported threats from Salas and Esho to Defendant Valencia, told Valencia 2 he had “safety concerns,” and asked to be housed in Administrative Segregation (“Ad 3 Seg”). (Id.) Valencia allegedly told Plaintiff to go back to his cell and pack up his property, 4 but when Plaintiff got back to his cell and asked Salas and Esho for boxes, they called him 5 a “bitch,” and told him to “get the fuck out of here.” (Id.) Plaintiff exchanged verbal 6 insults with Salas and Esho, who again loudly called him a “rat.” (Id. at 6.) Plaintiff told 7 Salas and Esho “he was not scared of them and that he would ‘not tell if they gave him a 8 fair fight.’” (Id.) As Plaintiff was about to pack up his property, he saw Salas and Esho 9 get up from their desks and walk toward him; Salas was shaking his pepper spray can. (Id.) 10 Salas then pepper sprayed Plaintiff from about ten feet away and continued to spray him 11 “directly into his hair and side of his face.” (Id.) Plaintiff tried to block the spray and 12 backed into his cell saying, “Okay, okay, I’m cool.” (Id.) Plaintiff asserts Salas then 13 grabbed him by the hair, dragged him out of the cell, slammed him face first onto the 14 ground, sat on his back, and repeatedly slammed his face and head into the ground. (Id.) 15 As he was doing this, Plaintiff claims Salas spoke in his ear, “[You] thought you were 16 going to get a fair one mutha fucker, you squared off on me.” (Id.) Salas began choking 17 Plaintiff and shifting his weight in an attempt to smother him. (Id.) Plaintiff lost 18 consciousness but was awakened by Esho kicking him in the testicles and twisting his legs, 19 injuring his knee. (Id. at 6–7.) McWay then placed a spit mask over Plaintiff’s head, which 20 Plaintiff claims was positioned to block his airway. (Id.) Plaintiff further alleges Ryer, 21 Valencia, and McWay were present during the assault, and that Morris watched it from her 22 office. (Id. at 19–21.) 23 After the assault, Plaintiff was examined by Defendant Canela, a licensed vocational 24 nurse, who Plaintiff claims submitted a false medical report stating he had no injuries. (Id. 25 at 7.) Plaintiff alleges that he was taken to a hospital after two other nurses examined him 26 and found injuries and bleeding. (Id.) McWay took pictures of Plaintiff while he was 27 being transported as well as pictures of Salas and Esho, but did not take pictures of the 28 “bloody floor” where the incident took place. (Id.) 1 As a result of this incident, Plaintiff was assigned an Investigative Employee (“IE”), 2 Bell, for a Rules Violation Report (“RVR”) hearing, but before an RVR hearing could be 3 conducted at RJD, Plaintiff was transferred to Kern Valley State Prison (“KVSP”). (Id. at 4 8.) There, Defendant Arrezola was assigned as Plaintiff’s IE. (Id.) 5 On November 10, 2019, Defendant Duran came to Plaintiff’s cell and asked him if 6 he wanted Duran to relay his witness requests and documents to Bell. (Id.) Plaintiff gave 7 Duran a list of questions for the witnesses and his medical records, but when Duran later 8 gave him the prepared IE report, the medical records were not attached. (Id. at 9.) 9 On December 14, 2019, Plaintiff attended his RVR hearing. (Id.) Defendant Sell 10 was the Senior Hearing Officer (“SHO”). (Id.) Plaintiff attempted to tell Sell that there 11 were witness statements and medical records he wanted her to consider that were not part 12 of the record, but she refused to consider that information. (Id.) Plaintiff was found guilty 13 of a rules violation and was punished with 150 days of lost custody credits and additional 14 custody level points. (Id.) On September 9, 2021, relying on the RVR, the parole board 15 denied him parole. (Id. at 10.) 16 III. Analysis 17 A. Count One: Eighth Amendment Excessive Force 18 Plaintiff’s allegations against Salas, Esho, and McWay state a plausible Eighth 19 Amendment excessive force claim. Unnecessary and wanton infliction of pain violates the 20 Eighth Amendment’s Cruel and Unusual Punishment Clause. Hudson v. McMillian, 503 21 U.S. 1, 5 (1992). In the context of prison officials who are alleged to have used excessive 22 physical force in violation of the Eighth Amendment, “the core judicial inquiry is . . . 23 whether force was applied in a good-faith effort to maintain or restore discipline, or 24 maliciously and sadistically to cause harm.” Id. at 6–7; Wilkins v. Gaddy, 559 U.S. 34, 37 25 (2010) (per curiam) (internal quotation marks omitted) (citing Hudson, 503 U.S. at 7). “It 26 is generally recognized that ‘it is a violation of the Eighth Amendment for prison officials 27 to use mace, tear gas or other chemical agents [such as pepper spray] in quantities greater 28 / / / 1 than necessary or for the sole purpose of infliction of pain.’” Furnace v. Sullivan, 705 F.3d 2 1021, 1028 (9th Cir. 2013) (citations omitted). 3 Here, Plaintiff’s claim that Defendant Salas pepper sprayed him in his hair and face 4 while he was standing in his cell and continued to do so even though Plaintiff was backing 5 into his cell saying, “Okay, okay, I’m cool,” (see Compl. at 6, 11–12), plausibly alleges 6 that Salas pepper sprayed Plaintiff “for the sole purpose of infliction of pain,” Furnace, 7 705 F.3d at 1028. Further, Plaintiff’s claim that Salas slammed him face first onto the 8 ground, sat on his back, slammed his face and head into the ground, choked him, and shifted 9 his weight in an attempt to smother Plaintiff also plausibly allege Salas was motivated not 10 by a good-faith effort to discipline Plaintiff, but rather to maliciously and sadistically cause 11 harm. (See Compl. at 6, 11–12). See Wilkins, 559 U.S. at 37 (finding district court erred 12 when dismissing a pro se prisoner’s complaint for failing to state a claim where the plaintiff 13 alleged the defendant “punched, kicked, kneed, choked, and body slammed” him without 14 provocation). The same is true of Plaintiff’s claim that Esho kicked him in the testicles 15 and twisted his legs while he was unconscious, injuring his knee. (See Compl. at 6, 11– 16 12.) Finally, his claim that McWay placed a spit mask over his head and positioned it to 17 block his airway also plausibly alleges McWay’s use of the spit mask was malicious and 18 sadistic. (See id.) See Hudson, 503 U.S. at 5. Accordingly, the Court finds Plaintiff’s 19 excessive force allegations are sufficient to survive the “low threshold” set for sua sponte 20 screening by 28 U.S.C. § 1915(e)(2) and § 1915A(b). See Wilhelm, 680 F.3d at 1123; 21 Iqbal, 556 U.S. at 678. 22 B. Count Two: First Amendment Retaliation 23 Plaintiff alleges Salas, Esho, McWay, and Canela violated his First Amendment 24 rights when they searched his cell, used excessive force, and created false incident and 25 medical reports in retaliation for Plaintiff reporting Morris’s failure to update his file and 26 for reporting Salas’s and Esho’s threats. (Compl. at 13–18.) He also claims McWay failed 27 to take photos of blood on the floor where the attack took place in retaliation for Plaintiff’s 28 actions. (Id.) 1 “Prisoners have a First Amendment right to file grievances against prison officials 2 and to be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th 3 Cir. 2012) (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). “Within the 4 prison context, a viable claim of First Amendment retaliation entails five basic elements: 5 (1) An assertion that a state actor took some adverse action against an inmate (2) because 6 of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 7 exercise of his First Amendment rights, and (5) the action did not reasonably advance a 8 legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005). 9 Plaintiff’s Complaint contains sufficient factual allegations to show he engaged in 10 protected conduct by reporting the alleged threats from Salas and Esho. (Compl. at 13.) 11 Plaintiff’s allegations that Salas and Esho filed false incident reports and used excessive 12 force against him are sufficient to plausibly allege Plaintiff’s First Amendment rights were 13 chilled, and there is no legitimate correctional goal advanced by Salas’s and Esho’s alleged 14 actions. Further, the Complaint contains sufficient facts to plausibly allege Salas’s and 15 Esho’s actions were taken because of Plaintiff’s protected conduct: Plaintiff alleges that 16 shortly after he told Morris he was going to report her for failing to update his file, Salas 17 and Esho searched his cell and threatened him. (Id. at 5.) When he reported Salas’s and 18 Esho’s threats, they used excessive force against him and created the false incident reports. 19 (Id.) See Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995) (“[T]iming can properly be 20 considered as circumstantial evidence of retaliatory intent.”). Accordingly, the Court 21 concludes Plaintiff has plausibly alleged a First Amendment claim for retaliation against 22 Salas and Esho. See 28 U.S.C. §§ 1915(e)(2), 1915A(b); Wilhelm, 680 F.3d at 1123; Iqbal, 23 556 U.S. at 678. 24 Plaintiff, however, has not stated a plausible retaliation claim against Defendant 25 Canela or McWay. Plaintiff has not demonstrated that Canela or McWay submitted false 26 medical and incident reports, or that McWay failed to photograph the bloody floor, because 27 of any protected conduct by Plaintiff. Rhodes, 408 F.3d at 567–68. Plaintiff does not 28 allege that either Canela or McWay knew he had threatened to report Morris for failing to 1 include documents in his file or that he had reported Salas and Esho for threatening him. 2 He simply states that they submitted the false reports and that McWay failed to photograph 3 the bloody floor. (Compl. at 14, 16.) That is not sufficient to state a viable retaliation 4 claim. See Rhodes, 408 F.3d at 567–68. Accordingly, Plaintiff’s retaliation claims against 5 Canela and McWay must be dismissed. See 28 U.S.C. §§ 1915(e)(2), 1915A(b); Wilhelm, 6 680 F.3d at 1123; Iqbal, 556 U.S. at 678. 7 C. Count Two: Due Process 8 Plaintiff alleges that Arrezola and Duran violated his due process rights by 9 interfering with his RVR hearing. (Compl. at 14–18.) Specifically, he claims Arrezola 10 and Duran removed medical documents from his RVR file and did not contact Bell, who 11 was Plaintiff’s designated investigative employee at RJD, to obtain information about 12 Plaintiff’s witnesses. (Id.) He also alleges Waddle permitted the removal of the documents 13 and found that the witnesses and questions Plaintiff wanted to ask at the hearing were 14 irrelevant. (Id. at 15.) He further alleges that Waddle’s actions led Sell, the SHO, to decide 15 not call or question any of Plaintiff’s witnesses or to consider Plaintiff’s medical 16 documents. (Id.) Finally, he alleges Defendant Stanley approved the IE report. (Id. at 9.) 17 “The Fourteenth Amendment’s Due Process Clause protects persons against 18 deprivations of life, liberty, or property; and those who seek to invoke its procedural 19 protection must establish that one of these interests is at stake.” Wilkinson v. Austin, 545 20 U.S. 209, 221 (2005). Liberty interests protected by the Due Process Clause “will be 21 generally limited to freedom from restraint which . . . impose[] atypical and significant 22 hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. 23 O’Connor, 515 U.S. 472, 484 (1995). If an inmate identifies a protected liberty interest, 24 due process requires: (1) 24-hour advanced written notice of the charges against him, (2) a 25 written statement from the factfinder which identifies the evidence relied on and the 26 reasons for the action taken, (3) an opportunity “to call witnesses and present documentary 27 evidence in his defense when” doing so “will not be unduly hazardous to institutional safety 28 or correctional goals,” (4) assistance at the hearing if he is illiterate or the matter is 1 complex, and (5) a “sufficiently impartial” factfinder. Wolff v. McDonnell, 418 U.S. 539, 2 564–71 (1974). 3 Even assuming Plaintiff has alleged facts sufficient to invoke a protected liberty 4 interest under Sandin, he has not pled sufficient facts to plausibly show he was denied the 5 procedural protections the Due Process Clause requires. See Iqbal, 556 U.S. at 678; 6 Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003). Exhibit A to Plaintiff’s Complaint 7 shows he was given 24-hour advance notice of the charges, (ECF No. 1-2 at 2–9), a written 8 explanation of the result of the RVR hearing by the SHO, (id. at 14–16), and an opportunity 9 to call witnesses and submit documentary evidence, (id. at 9–10). There are no allegations 10 in his Complaint that show Plaintiff is illiterate, that the matter is complex, or that the SHO 11 was not “sufficiently impartial.” And while Plaintiff must be afforded the opportunity to 12 present witnesses and documents, the Due Process Clause does not guarantee an absolute 13 right to do so. See Wolff, 418 U.S. at 566 (“Prison officials must have the necessary 14 discretion to keep the hearing within reasonable limits and to refuse to call witnesses . . . . 15 [for reasons such as] irrelevance [or] lack of necessity . . . .”); Graves v. Knowles, 231 16 F. App’x 670, 672 (9th Cir. 2007) (stating that an SHO does not violate due process by 17 denying a prisoner’s request to call witnesses if the SHO deems them to be irrelevant or 18 unnecessary); Thompson v. Macomber, No. 2:14-cv-2501 JAM KJN P (TEMP), 2016 WL 19 3344474, at *10 (E.D. Cal. June 15, 2016) (same). Prisoners also do not have a “separate 20 constitutional entitlement to a specific prison grievance procedure.” Ramirez, 334 F.3d at 21 860 (citation omitted). 22 Further, to the extent Plaintiff alleges the submission of false incident reports by 23 Salas, Esho, or McWay violated his due process rights, he has not stated a plausible § 1983 24 claim. There is no due process right to be free from false accusations or false reports by 25 prison officials. See Solomon v. Meyer, No. 11-cv-02827-JST (PR), 2014 WL 294576, at 26 *2 (N.D. Cal. Jan. 27, 2014); Johnson v. Felker, No. 2:12-cv-02719-GEB KJN (PC), 2013 27 WL 6243280, at *6 (E.D. Cal. Dec. 3, 2013) (“Prisoners have no constitutionally 28 guaranteed right to be free from false accusations of misconduct, so the mere falsification 1 of a [rules violation] report does not give rise to a claim under § 1983.”); Muhammad v. 2 Rubia, No. C 08-3209-JSW (PR), 2010 WL 1260425, at *3 (N.D. Cal. Mar. 29, 2010) (“As 3 long as a prisoner is afforded procedural due process in the disciplinary hearing, allegations 4 of a fabricated charge fail to state a claim under § 1983.”). Accordingly, Plaintiff has failed 5 to state a plausible due process claim against any Defendant. See 28 U.S.C. 6 §§ 1915(e)(2)(B)(ii), 1915A(b)(1); Iqbal, 556 U.S. at 678. 7 D. Count Three: Eighth Amendment Failure to Protect 8 Plaintiff also alleges Ryer, Valencia, Morris, and McWay violated his Eighth 9 Amendment rights by failing to protect him against Salas and Esho. (Compl. at 19–21.) 10 He claims Ryer and Valencia knew that sending him back to his cell to pack his boxes 11 posed a substantial risk to his safety because they knew Salas and Esho had a history of 12 using excessive force. (Id. at 19.) Plaintiff also alleges Morris and McWay knew Salas 13 and Esho would retaliate against him after she told them that Plaintiff was going to report 14 her for not updating his file. (Id. at 20.) 15 “The Eighth Amendment requires prison officials to protect inmates from violence.” 16 Wilk v. Neven, 956 F.3d 1143, 1147 (9th Cir. 2020) (citing Farmer v. Brennan, 511 U.S. 17 825, 833 (1994)). In order to state a plausible Eighth Amendment claim for relief, however, 18 a Plaintiff must allege facts sufficient to show that Defendants acted with “deliberate 19 indifference.” Castro v. County of Los Angeles, 833 F.3d 1060, 1068 (9th Cir. 2016); see 20 Iqbal, 556 U.S. at 678. “A prison official acts with ‘deliberate indifference . . . only if the 21 [prison official] knows of and disregards an excessive risk to inmate health and safety.’” 22 Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Gibson v. County of 23 Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002), overruled on other grounds by Castro, 833 24 F.3d at 1076). “Under this standard, the prison official must not only ‘be aware of facts 25 from which the inference could be drawn that a substantial risk of serious harm exists,’ but 26 that person ‘must also draw the inference.’” Id. (quoting Farmer, 511 U.S. at 837). 27 With respect to Morris and McWay, Plaintiff’s allegations are too conclusory to state 28 a plausible § 1983 claim. Plaintiff must provide facts, for example, to show how Morris 1 and McWay knew that Salas and Esho would assault him, what Salas and Esho did to alert 2 them to the risk they presented to Plaintiff, and what they did or failed to do that put him 3 at risk. See Williams v. Adams, No. 1:19-cv-01058-GSA-PC, 2020 WL 13251918, at *3 4 (E.D. Cal. Aug. 24, 2020) (concluding that Plaintiff’s statement that a defendant “knew 5 through personal observation, knowledge and history, and other sources that 6 defendant . . . would use excessive force to assault a prisoner as discipline” was insufficient 7 to state a plausible Eighth Amendment claim). Without such facts, Plaintiff has not 8 plausibly alleged Morris, or McWay acted with deliberate indifference, i.e., that they knew 9 of and disregarded an excessive risk to his health and safety. See Toguchi, 391 F.3d at 10 1057. 11 Plaintiff’s allegations against Ryer and Valencia are a closer call. Plaintiff alleges 12 that after he told Ryer and Valencia that Salas and Esho had threatened him, Ryer and 13 Valencia alerted Salas and Esho about Plaintiff’s report, then sent him back to his cell to 14 pack his boxes for a transfer to Ad Seg, exposing him to the risk they knew Salas and Esho 15 posed to him. (Compl. at 19.) While Plaintiff may have sufficiently alleged Ryer and 16 Valencia were “aware of facts from which the inference could be drawn that a substantial 17 risk of serious harm exist[ed],” Plaintiff has not provided enough factual detail regarding 18 how or why Ryer and Valencia actually “drew the inference” that Salas and Esho were a 19 sufficiently serious and immediate threat to Plaintiff. Toguchi, 391 F.3d at 1057. 20 Accordingly, he has not plausibly alleged an Eighth Amendment failure to protect claim 21 against Ryer and Valencia. See Iqbal, 556 U.S. at 676–77. 22 Finally, Plaintiff alleges Morris, Ryer, and Valencia violated his Eighth Amendment 23 rights when they failed to intervene and stop Salas and Esho from assaulting him. (Compl. 24 at 19–20.) “[A] prison guard has an affirmative duty to intervene on behalf of a prisoner 25 if other officers are violating the prisoner’s constitutional rights in his presence, or if he 26 knows that the prisoner’s rights are being violated,” but only if the officer had an 27 opportunity to intercede. Tompkins v. Stephens, No. CIV S-07-2346 GEB EFB P, 2011 28 WL 3875643, at *10 (E.D. Cal. Sept. 2, 2011) (first citing Robbins v. Meecham, 60 F.3d 1 1436, 1442 (9th Cir. 1995); and then citing Cunningham v. Gates, 229 F.3d 1271, 1289 2 (9th Cir. 2000)). While Plaintiff alleges Morris, Ryer, and Valencia observed Salas and 3 Esho assaulting him, he has alleged no facts to show they were in a position to intervene. 4 Plaintiff only states that Ryer and Valencia were “present,” and that Morris watched the 5 assault from her office. (Compl. at 19–20.) Without more, these allegations are 6 insufficient to plausibly allege Morris, Ryer, and Valencia violated Plaintiff’s Eighth 7 Amendment rights by failing to intervene and stop Salas and Esho from assaulting him. 8 See Iqbal, 556 U.S. at 676–77. 9 V. Conclusion 10 For the foregoing reasons, the Court concludes Plaintiff has plausibly stated an 11 Eighth Amendment excessive force claim against Salas, Esho, and McWay, and a First 12 Amendment retaliation claim against Salas and Esho. The Court, however, DISMISSES 13 Plaintiff’s First Amendment retaliation claims against Canela and McWay, his Fourteenth 14 Amendment due process claims, and his Eighth Amendment failure to protect claims for 15 failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). 16 Because Plaintiff is proceeding pro se, the Court must give him leave to amend his 17 Complaint. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court 18 should not dismiss a pro se complaint without leave to amend [pursuant to 28 U.S.C. 19 § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the deficiencies of the complaint 20 [cannot] be cured by amendment.’” (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 21 2012))). Accordingly, the Court GRANTS Plaintiff forty-five (45) days from the date of 22 this Order in which to either: (1) file a Notice of Intent to Proceed with his Eighth 23 Amendment excessive force claims against Salas, Esho, and McWay and his First 24 Amendment retaliation claims against Salas and Esho only; or (2) file an amended 25 complaint correcting all the deficiencies of the pleading identified by the Court in this 26 Order. 27 If Plaintiff chooses to proceed with his Eighth Amendment excessive force claims 28 against Defendants Salas, Esho, and McWay and his First Amendment retaliation claims 1 || against Salas and Esho only, the Court will issue an Order directing the U.S. Marshal to 2 ||effect service of his Complaint on Defendants Salas, Esho, and McWay and dismiss the 3 remaining First, Fourteenth, and Eighth Amendment claims. 4 If Plaintiff chooses to file an amended complaint correcting the deficiencies outlined 5 this Order, his Amended Complaint must be complete in itself without reference to his 6 || original pleading. See S.D.Cal. CivLR 15.1(a). Defendants not named and any claims not 7 || re-alleged in the Amended Complaint will be considered waived. See Hal Roach Studios, 8 v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended 9 || pleading supersedes the original.”); see also Lacey v. Maricopa County, 693 F.3d 896, 928 10 || (9th Cir. 2012) (noting that claims dismissed with leave to amend that are not re-alleged in 11 |}an amended pleading may be considered waived if not repled). Plaintiff's Amended 12 ||Complaint must be titled “First Amended Complaint,” contain S.D. Cal. Civil Case No. 13 || 23-cv-00661-TWR-MSB in its caption, and comply with both Federal Rule of Civil 14 || Procedure 8 and Civil Local Rule 8.2(a). 15 In order to assist Plaintiff in complying with these requirements, the Court further 16 || DIRECTS the Clerk of the Court to provide Plaintiff with a blank copy of its form 17 ||Complaint under the Civil Rights Act, 42 U.S.C. § 1983, for his use and convenience 18 || should he choose to amend his Complaint. 19 IT IS SO ORDERED. 20 ||Dated: August 21, 2023 —_—— 21 | od) (2 re 27 Honorable Todd W. Robinson 33 United States District Judge 24 25 26 27 28 13