CHRISTINA A. SNYDER UNITED STATES DISTRICT JUDGE

ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS

I. INTRODUCTION

In December 2007, plaintiff Robert Beard filed a section 1983 prisoner civil rights claim seeking redress for events that allegedly occurred during his incarceration at the California Department of Corrections. The complaint was filed in the United States District Court for the Eastern District of California, and named as defendants Sergeant John Doe and Correctional Officer Kimble. Dkt. No. 1. Plaintiff failed to prosecute his claim until January 2009. In May 2009, when plaintiff attempted to effect service on Officer Kimble, it was discovered that Officer Kimble was deceased. Dkt. No. 23. Leave to file an amended complaint was granted October 16, 2009.

Plaintiff filed the operative First Amended Complaint ("FAC") on October 26, 2011, which named Correctional Officer Hull and Lieutenant Bishop as defendants (collectively "defendants"). Dkt. No. 31. Plaintiff alleges that during his incarceration, defendants violated his civil rights by: (1) using excessive force in violation of the Eighth Amendment; (2) displaying deliberate indifference to his health in violation of the Eighth Amendment; (3) displaying deliberate indifference to his safety in violation of the Eighth Amendment; (4) committing elder abuse against him; (5) violating his right to equal protection secured by the Fourteenth Amendment; (6) denying him due process in violation of the Fourteenth Amendment; (7) retaliating against him; (8) vicarious liability; and (9) violating the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA"). Plaintiff seeks to vindicate his civil rights pursuant to 42 U.S.C. § 1983 (1996). See generally FAC.

On August 9, 2013, defendants filed a motion to dismiss plaintiff's FAC, pursuant to Federal Rules of Civil Procedure 12(b), 12(b)(6), 8(a) and 8(d). Dkt. No. 42-1. Defendants argue that: (1) plaintiff failed to exhaust all administrative remedies; (2) the complaint fails to state a claim as a matter of law; and (3) the complaint does not contain a short and plain statement of claims. On May 14, 2014, defendants withdrew the exhaustion defense from their motion to dismiss, following the Ninth Circuit's decision in Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (en banc) (holding that appropriate procedure for adjudicating a failure to exhaust administrative remedies defense is summary judgment motion under Fed. R. Civ. P. 56). Dkt. No. 71. Having carefully considered the parties' arguments, the Court finds and concludes as follows.

II. BACKGROUND

Plaintiff is an inmate proceeding pro se. Plaintiff commenced this action while incarcerated at the High Desert Prison in Susanville, CA. Plaintiff identifies two discrete incidents where defendants allegedly violated his rights: a November 18, 2007 pepper-spraying incident and related disciplinary proceedings, and a December 29, 2007 incident where plaintiff was assaulted by his cellmate William Doe ("William").

A. The November 18, 2007 Pepper-Spraying Incident

Plaintiff alleges that he requested medical attention on October 24, 2007, due to swelling from an infected leg. On November 16, 2007, plaintiff received the required medical treatment, including a minor surgical procedure, and was released from the prison infirmary with a bandaged leg and a prescription for "very strong painkillers." FAC at 5. Plaintiff was instructed to report to the infirmary for daily re-bandaging and to receive his medication. Id.

On November 18, 2007, plaintiff was released from his cell by Officer Kimble, who was operating the control booth, and was instructed to report to the infirmary for his daily treatment. FAC at 6. On his way to the infirmary, plaintiff was allegedly intercepted by an unnamed officer who instructed plaintiff to return to his cell without treatment. Id. When plaintiff returned to the cell block, he spoke with Officer Hull, requesting that he bring a sergeant to help plaintiff access his medical treatment and to hear plaintiff's request for a cell transfer. Id. Plaintiff refused to "go anywhere" until a sergeant arrived, but alleges he made no physical or verbal threats towards any of the officers. Id. Nonetheless, plaintiff alleges that Officer Hull then sprayed mace in his eyes and "over his entire body" from the control booth located 20 feet above plaintiff. Plaintiff was subsequently handcuffed and placed in a holding cell. Id. After "about 5 hours," plaintiff was released from the holding cell. FAC at 7. At 7:30 PM, shortly after being released, plaintiff approached Officer Kimble to request his name and to inform him that plaintiff would be filing a complaint against him for the "wrongfully inflicted" punishment.

On November 23, 2007, plaintiff received a Rules Violation Report ("RVR") written by Officer Hull stating that plaintiff was being punished for violating rule 3005(D), "obstructing a peace officer," during the November 18, 2007 pepper-spraying incident. FAC at 8. The report described the interaction between plaintiff and the officers as "escalating" because plaintiff refused to return to his cell, and stated that three officers and an "mk-45," a pepper-spray device, were needed to maintain control. Id. According to the report, plaintiff "clenched [his fists] and took a step backward" while refusing several orders to lie down. Id. At this point, the report indicates that Officer Hull sprayed plaintiff with mace "in his eyes and upper body" and placed him in handcuffs. Id. Upon receiving the report, plaintiff requested a "staff assistant or investigator" to assist him with preparing for his disciplinary hearing. Id. Officer Williams told plaintiff that he would be interviewed by a staff assistant/investigator in the "next few days." Id. Seven days passed and plaintiff was not interviewed, nor was he informed whether his request for the investigator was approved or denied. Id.

On November 24, 2007, around 7:30 AM, plaintiff approached Officer Hull and accused him of writing a false disciplinary report in order to protect Officer Kimble from legal action. FAC at 9. Plaintiff "challenged" Officer Hull to take a lie detector test and told Officer Hull he would formally request that a lie-detector test be administered. Id.

On November 30, 2007, plaintiff was released from his cell and instructed to report to the program office for his disciplinary hearing. Id. Although plaintiff requested a continuance and stated that he was not ready to proceed, the hearing officer, Lieutenant Bishop, denied plaintiff's request, because plaintiff had already been given a "reasonable chance" to gather evidence and witnesses, and to otherwise investigate the report's allegations. FAC at 10. Plaintiff then requested that he be given a lie-detector test and that the hearing be continued until one could be administered. Lieutenant Bishop denied both requests. Id. Plaintiff subsequently proceeded with the hearing because "if [he] had refused to participate [Lieutenant Bishop] would have found [him] guilty in absentia anyways." Id. When plaintiff told Lieutenant Bishop that it had been Officer Kimble, rather than Officer Hull, who sprayed him, Lieutenant Bishop allegedly stated that it "made no difference" because "[Lieutenant Bishop] was going to support his subordinates no matter how they chose to handle any type of problem." FAC at 13. Lieutenant Bishop then found plaintiff guilty of refusing to obey orders and asked an officer to escort him back to his cell. Id.

B. The December 29, 2007 Assault by William

In mid-November, while plaintiff was recovering from his leg surgery, another inmate, William, was assigned to bunk with plaintiff for two days. The relationship between the two cellmates was poor. Ten minutes after William moved in, he allegedly told plaintiff that "he did not like [plaintiff's] hairstyle and if [plaintiff] didn't cut it [William] was going to show [plaintiff] all kinds of disrespect." FAC at 6. plaintiff initially decided that he could tolerate the "rude behavior" because it would only be for a few days. Id. On November 18, 2007, plaintiff attempted to request a cell transfer, but ultimately remained assigned to the same cell. FAC at 6, 13.

On December 29, 2007, plaintiff alleges he was sitting on his bed on the upper bunk when William "assaulted [plaintiff] in [his] eye with [William's] fist." FAC at 13. Plaintiff reported the incident and was escorted to the medical unit where a "nurse found that [he] was the victim of an assault." Id. After leaving the medical unit, Sergeant Glen told plaintiff that he would be placed in administrative segregation because "there were no other Black non-gang affiliated cells available on the [appropriate] yard." Id. When plaintiff eventually returned to the yard, he was assigned a new cell and a new cellmate, Dan Collins. FAC at 15.

III. LEGAL STANDARD

A Rule 12(b)(6) motion tests the legal sufficiency of the claims asserted in a complaint. "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "[F]actual allegations must be enough to raise a right to relief above the speculative level." Id.

In considering a motion pursuant to Rule 12(b)(6), a court must accept as true all material allegations in the complaint, as well as all reasonable inferences to be drawn from them. Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998). The complaint must be read in the light most favorable to the nonmoving party. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). However, "[i]n keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft v. Iqbal, 556 U.S. 662, 129 (2009); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009) ("[F]or a complaint to survive a motion to dismiss, the non-conclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.") (citing Twombly and Iqbal ); Sprewell, 266 F.3d at 988; W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981.) Ultimately, "[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S.Ct. at 1950.

A document filed pro se must be liberally construed and is "held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). In the Ninth Circuit, "we continue to construe pro se filings liberally [even] when evaluating them under Iqbal[.]" Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). "This rule particularly applies to complaints and motions filed by pro se prisoners." Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001), as amended (June 5, 2001); United States v. Seesing, 234 F.3d 456, 462-63 (9th Cir. 2000). Further, this rule is particularly salient in civil rights cases. Hebbe, 627 F.3d at 342. "However, a liberal interpretation of a pro se civil rights complaint may not supply essential elements of the claim that were not initially pled. Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." Litmon v. Harris, 768 F.3d 1237, 1241 (9th Cir. 2014) (citing Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992)).

Unless a court converts a Rule 12(b)(6) motion into a motion for summary judgment, a court cannot consider material outside of the complaint (e.g., facts presented in briefs, affidavits, or discovery materials). In re American Cont'l Corp./Lincoln Sav. & Loan Sec. Litig., 102 F.3d 1524, 1537 (9th Cir. 1996), rev'd on other grounds sub nom Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998). A court may, however, consider exhibits submitted with or alleged in the complaint and matters that may be judicially noticed pursuant to Federal Rule of Evidence 201. In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999); Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001).

For all of these reasons, it is only under extraordinary circumstances that dismissal is proper under Rule 12(b)(6). United States v. City of Redwood City, 640 F.2d 963, 966 (9th Cir. 1981).

IV. DISCUSSION

The FAC alleges that defendants violated plaintiff's civil rights in contravention of the Civil Rights Act, 42 U.S.C. § 1983. To state a claim under section 1983, plaintiff must allege that he: "[1] was deprived of a right secured by the Constitution or laws of the United States, and [2] that the alleged deprivation was committed under color of state law." Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). "A pleading will not be sufficient to state a claim under the Civil Rights Act if the allegations are mere conclusions." Kennedy v. H & M Landing, Inc., 529 F.2d 987 (9th Cir. 1976). Defendants argue that plaintiff's FAC fails to allege the deprivation of rights secured by the Constitution, and, thus, plaintiff's section 1983 claim must fail.

A. Defendant Hull

Plaintiff alleges that Officer Hull: (1) violated his Eighth Amendment rights by utilizing excessive force; (2) violated his Eighth Amendment rights by displaying deliberate indifference to his health; (3) violated his Eighth Amendment rights by displaying deliberate indifference to his safety; (4) committed elder abuse; (5) violated his Fourteenth Amendment right to equal protection; (6) violated his Fourteenth Amendment due process rights; and (7) retaliated against him for exercising his First Amendment rights.

1. Excessive Force

Plaintiff alleges that Officer Hull violated his Eighth Amendment rights by utilizing excessive force in spraying mace into plaintiff's eyes and "all over [his] body." Defendants do not dispute that mace was used on plaintiff.

The Eighth Amendment's "cruel and unusual" punishment clause protects inmates against the "unnecessary and wanton infliction of pain." Ingraham v. Wright, 430 U.S. 651, 670 (1977) (quoting Gamble, 429 U.S. at 103). When prison officials stand accused of using excessive physical force in violation of the cruel and unusual punishment clause, "the core judicial inquiry is . . . whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). Further, the officers' application of excessive force must have been "purposeful or knowing." Porter v. Nussle, 534 U.S. 516 (2002) (citing Farmer v. Brennan, 511 U.S. 825 (1994)).

California regulations permit a corrections officer to use reasonable force to, inter alia, "gain [inmate] compliance with a lawful order." Cal. Code Regs. tit. 15, § 3268(a)(1). Moreover, "[u]se of Force options do not have to be utilized in any particular sequence, but should be the force option staff reasonably believes is sufficient. Whenever possible, verbal persuasion or orders shall be issued prior to resorting to force and are required to be provided before controlled force is used. . . . Use of force options include but are not limited to: [¶] (1) Chemical Agents." Id. § 3268(c).

Here, as plaintiff himself alleges, he was pepper-sprayed by Officer Hull after telling Officer Hull that he "was not going to go anywhere until after [the guards] contacted a sergeant" about receiving his medication and a cell transfer—i.e., after failing to comply with Officer Hull's order to return to his cell. This allegation demonstrates that the pepper-spray was applied in order to maintain discipline, rather than to maliciously cause harm. See Fugawa v. Trimble, No. 1:11-CV-00966, 2015 WL 672123, at *10 (E.D. Cal. Feb. 17, 2015) ("Officers are permitted to use reasonable force in the execution of their duties, including gaining compliance with an order, [], and even assuming Defendant did not, as Plaintiff alleges, give a verbal warning before employing an immediate use of force[.]") (citations omitted); cf. Coleman v. Brown, 28 F. Supp. 3d 1068, 1079 (E.D. Cal. 2014) ("at least one appellate court has found that the Eighth Amendment is violated by use of pepper spray on a mentally ill inmate who, because of mental illness, is unable to comply with directives from prison officials and nonetheless is subjected to pepper spray."). Thus, plaintiff fails to allege facts sufficient to state a claim for excessive force, and the Court GRANTS defendants' motion to dismiss this claim accordingly.

2. Deliberate Indifference to Health

Plaintiff also alleges that Officer Hull violated his Eighth Amendment rights by delaying his receipt of medication and medical treatment prescribed for his leg infection.

"The government has an obligation to provide medical care for those whom it punishes by incarceration, and cannot be deliberately indifferent to the medical needs of its prisoners." McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992) overruled on other grounds by WMX Technologies, Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997). If a prison official is deliberately indifferent to a prisoner's serious medical needs, the Eighth Amendment is violated. Gamble, 429 U.S. at 104-06 (1976). "Deliberate indifference is a high legal standard." Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004).

To establish deliberate indifference with respect to medical care, a prisoner must satisfy both the objective and subjective components of the two-part test set forth in Brennan, 511 U.S. at 834. First, a plaintiff must show he had a "serious" medical need. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). "A 'serious' medical need exists if the failure to treat a prisoner's condition could result in further significant injury or the 'unnecessary and wanton infliction of pain.' " McGuckin, 974 F.2d at 1059 (quoting Gamble, 429 U.S. at 104). Examples of serious needs for medical treatment include, "an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; the existence of chronic and substantial pain[.]" Id. at 1059-60.

Second, the plaintiff must show the defendants' response to the serious medical need was deliberately indifferent. Jett, 439 F.3d at 1096. To establish deliberate indifference, a plaintiff must allege that the defendant purposefully ignored or failed to respond to the prisoner's pain or possible medical need. McGuckin, 974 F. 2d at 1060. Moreover, unless the delay or denial of treatment was harmful to plaintiff's health, simple delays in medical treatment do not state a claim for deliberate medical indifference. Id.; see, e.g., Farley v. Capot, 384 F. App'x 685, 686-87 (9th Cir. 2010) (prisoner stated claim for deliberate indifference to serious medical need where he alleged that doctor "refused to authorize two urgent requests for surgery on [prisoner's] cancerous tumor without any explanation and that the approximately two-month delay in surgery caused [the priosner] unnecessary pain and further serious harm."); Jett, 439 F.3d at 1096-97 (two-month delay in receiving treatment for fractured thumb and nineteen-month delay in being seen by a hand specialist which caused pain and diminished use of hand is sufficient to state deliberate indifference claim.)

Here, plaintiff has not alleged facts sufficient to support a finding of deliberate indifference. Plaintiff himself acknowledges that Officer Hull did not know he had been denied medical treatment. Specifically, plaintiff states "if Mr. Hull had given me a chance to explain, he would then have known that a yard officer had refused to let me visit the clinic and pick up my medication." FAC at 11. If Officer Hull was unaware that plaintiff had been denied medical treatment, it follows that he did not act with the requisite intent to state a claim for deliberate indifference. See Fulcher v. California Dep't of Corr., 297 F. App'x 645, 646 (9th Cir. 2008) (affirming dismissal of claim for deliberate indifference to medical need where prisoner "failed to allege facts to establish that these defendants knew of and disregarded a serious risk of harm to [the prisoner]."). Moreover, plaintiff has failed to allege how the five hour treatment delay caused him further harm. Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985) ("delay of [care], without more, is insufficient to state a claim of deliberate medical indifference; . . . [there is] no claim for deliberate medical indifference unless the denial [of care] was harmful."); see also Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998) (alleged delays in administering pain medication did not constitute deliberate indifference); Wood v. Housewight, 900 F.2d 1332, 1335 (9th Cir. 1990) (alleged delay of several days in receiving pain medication was not a constitutional violation). Because plaintiff has not stated a claim for deliberate indifference to his health, the Court GRANTS defendants' motion to dismiss this claim.

3. Deliberate Indifference to Safety

Next, plaintiff alleges that Officer Hull violated his Eighth Amendment rights by leaving plaintiff in the same cell with an inmate who later assaulted him. The Eighth Amendment requires prison officials to take reasonable measures to guarantee prisoner safety. Brennan, 511 U.S. at 832. Although prison officials have a duty to protect prisoners from violence at the hands of other prisoners, not every injury suffered at the hands of another inmate results in constitutional liability for prison officials. Id. at 833-34. Rather, as discussed above, a prison official only violates the Eighth Amendment when two requirements are met: (1) the deprivation is objectively sufficiently serious; and (2) the prison official is subjectively, deliberately indifferent to the prisoner's safety. Id.

Further, to hold a prison official liable for failure to prevent harm, a prisoner must show: (1) that he was incarcerated under conditions posing a substantial risk of serious harm; and (2) that the officer knew of and disregarded such a risk. Id. at 837. Thus, the officer must be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and the officer must actually draw that inference. Id. The level of culpable knowledge falls somewhere between "moral certainty" and "mere suspicion" that an attack will occur. Peralta v. Dillard, 744 F.3d 1076, 1086 (9th Cir. 2014) cert. denied, 2015 WL 132964 (U.S. Jan. 12, 2015). Even if the officer knew or should have known about a substantial risk, he may avoid liability if he responded reasonably to the risk. Id.; see also Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002).

The Court concludes that plaintiff's claim fails because he has not alleged that Officer Hull (or Lieutenant Bishop) possessed the requisite knowledge to support a finding of deliberate indifference. Although plaintiff alleges that he approached Officer Hull and asked that he contact a sergeant "so that [plaintiff] could make a request to be transferred to another cell," plaintiff does not allege that he informed any of the officers why he was requesting the transfer. FAC at 6. Instead, plaintiff conclusorily alleges that Officer Hull knew that William was "subjecting [him] to threats, physical and verbal abuse without justification or provocation," and that Lieutenant Bishop "knew that his decision [to not separate plaintiff and his cellmate] was illegal and wrong." FAC at 11, 13. These allegations are insufficient.

Moreover, even if plaintiff explicitly described his dispute with William to Officer Hull or Lieutenant Bishop, it nonetheless would be insufficient to state a claim for deliberate indifference, because plaintiff has not alleged a "substantial" risk of harm. Here, plaintiff alleges that William threatened to show him "all kinds of disrespect." A threat of "disrespect" does not support an inference that a substantial risk of serious harm existed. Thus, because plaintiff has failed to demonstrate either a substantial risk of serious harm, or that defendants were aware of the risk of such harm, the Court GRANTS defendants' motion to dismiss the deliberate indifference to personal safety claim.

4. Elder Abuse

Plaintiff alleges that Officer Hull committed elder abuse against him by forcing him to remain cellmates with William, which ultimately placed his health and safety in jeopardy. Plaintiff alleges that this was a violation of California Penal Code § 368, which protects elders and dependant adults from physical and financial abuse committed by those in custody of their care.

The Court concludes that this claim fails as a matter of law. First, plaintiff does not have standing to bring suit for a violation of the Penal Code. See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) ("[A] private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another."). Further, plaintiff cannot succeed on a civil claim for elder abuse because he does not meet the statutory definition of "elder" or "dependant adult." See Cal. Welf. & Inst. Code § 15610.27 (defining "elder" as any person residing in this state aged 65 years or older); Cal. Welf. & Inst. Code § 15610.23 (defining "dependent adult" as "any person between the ages of 18 and 64 years who resides in this state and who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities, or whose physical or mental abilities have diminished because of age."). Here, plaintiff admits that he was approximately 54 years old when these actions occurred; thus he does not meet the statutory definition of "elder." Further, while plaintiff alleges that he was being treated for high blood pressure and had an injured leg, he fails to plead any facts alleging that these conditions restricted his ability to carry out normal activities or to protect his rights, as required to be classified as a "dependant adult." Because plaintiff cannot show that he was either an elder or a dependant adult as defined by the statute, the Court GRANTS defendants' motion to dismiss the claim for elder abuse.

5. Equal Protection

Plaintiff alleges that Officer Hull violated his Fourteenth Amendment rights by filing a disciplinary report and placing plaintiff into administrative segregation when he was assaulted by a different cellmate, Dan Collins. This claim fails because the FAC identifies non-parties Officer Malone and Sergeant Glen, not Officer Hull, as the parties responsible for writing the report and for placing plaintiff in segregation.

6. Due Process

Plaintiff alleges that Officer Hull violated his Fourteenth Amendment right to due process by "refusing to participate in the grievance process." Plaintiff's allegations do not indicate any specific way in which Officer Hull refused to participate in the grievance process.

A prisoner in a disciplinary hearing is entitled to certain, but not all, due process protections afforded to a defendant in a criminal prosecution. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Specifically, an inmate has the right: (1) to written notice of the charges at least 24 hours prior to the disciplinary hearing; (2) to appear in person before an impartial hearing body; (3) to call witnesses and present documentary evidence; (4) to receive a written statement of reasons for the disciplinary action taken; and (5) to assistance in obtaining and presenting evidence where the inmate is illiterate or the issue is too complex for the inmate to represent himself. Id. at 563-71. However, the Court need not consider the adequacy of the procedural protections afforded to plaintiff in his disciplinary hearing unless it determines that the disciplinary action imposed an "atypical and significant hardship on [plaintiff] in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 483-84; see also Williams v. Foote, 2009 WL 1520029, at *9 (C.D. Cal. May 28, 2009) ("If a deprivation creates an 'atypical and significant hardship' within the meaning of Sandin, so as to establish a protected liberty interest, then the Court must determine whether the plaintiff was given all the process due under Wolff.")

To determine whether a disciplinary action imposes an atypical and significant hardship on an inmate, Sandin directs courts to consider three factors: (1) whether the challenged action "mirrored those conditions imposed upon inmates . . . in administrative segregation and protected custody;" (2) the duration and degree of the restraint imposed; and (3) whether the state's action will invariably affect the duration of the prisoner's sentence. Chappell v. Mandeville, 706 F.3d 1052, 1064 (9th Cir. 2013); accord Sandin, 515 U.S. at 486-87. Here, plaintiff does not allege that he was subjected to atypical conditions of confinement as a result of being found guilty of the rules violation. In fact, plaintiff states that, following his disciplinary hearing, he was escorted by Officer Williams back to the very same cell where he had previously resided. FAC at 13. Because plaintiff has failed to allege that the disciplinary action imposed an atypical and significant hardship, the Court concludes that plaintiff has failed to state a claim for violation of his due process rights. Accordingly, the Court GRANTS defendants' motion to dismiss this claim.

7. Retaliation

Plaintiff also alleges that Officer Hull violated his Fourteenth Amendment rights by filing a false report in retaliation for plaintiff exercising his First Amendment right to file a grievance. For the reasons stated below, this claim also fails.

To establish a claim for deprivation of due process under the Fourteenth Amendment, the plaintiff must first identify the liberty interest for which protection is sought. Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Prisoners have no constitutional right to be free from wrongfully issued disciplinary reports. See Hanrahan v. Lane, 747 F.2d 1137 (7th Cir. 1984); Freeman v. Rideout, 808 F.2d 949 (2nd Cir. 1986); Foote, 2009 WL 1520029, at *7 ("A prisoner does not have a constitutional right to be free from falsified disciplinary reports."). A false disciplinary action can only form the basis of a cognizable civil rights claim where the plaintiff alleges that the false report was retaliatory in nature, or where procedural due process rights were not satisfied. See Hines v. Gomez, 108 F.3d 265 (9th Cir. 1997); Newsom v. Norris, 888 F.2d 371 (9th Cir. 1989). Thus, to state a claim for retaliation, plaintiff must allege that the defendant (1) filed a false disciplinary report; (2) in retaliation for the plaintiff's exercise of a constitutionally protected right; and (3) that the retaliatory action advanced no legitimate penological interest. Hines, 108 F.3d at 267.

Here, plaintiff alleges that Officer Hull filed a false RVR in retaliation for plaintiff's threat to file a complaint against Officer Kimble. FAC at 9, 12, 17. However, plaintiff does not allege that Officer Hull knew that plaintiff had threatened to file a complaint against Officer Kimble. Instead, plaintiff alleges that he confronted Officer Hull and told him that he "knew" Hull had written the false RVR to protect Officer Kimble. FAC at 9. Plaintiff's allegations indicate that Officer Kimble had knowledge of plaintiff's plan to file a complaint against him; however, the alleged facts do not indicate any link between Officer Kimble's knowledge and Officer Hull's actions.

Further, plaintiff does not dispute the truthfulness of the underlying events that eventually lead to the issuance of the RVR. Specifically, plaintiff was given an RVR for failing to comply with a peace officer's orders. FAC at 8. By his own admission, plaintiff refused to comply with such orders. Id. Thus, plaintiff has not alleged that the disciplinary report was false in any meaningful way. Because plaintiff has not alleged that Officer Hull actually knew about plaintiff's threatened exercise of his First Amendment rights, nor can he allege that the disciplinary report was false, the Court GRANTS defendants' motion to dismiss this claim.

B. Defendant Bishop

Plaintiff alleges Lieutenant Bishop: (1) violated his Eighth Amendment rights by displaying deliberate indifference to his health and safety; (2) committed elder abuse; (3) violated his Fourteenth Amendment due process rights; (4) is vicariously liable for the acts committed by his subordinates; and (5) violated rights secured to him by the Americans with Disabilities Act.

1. Deliberate Indifference to Health and Safety

Plaintiff alleges that Lieutenant Bishop violated his Eighth Amendment rights by refusing to move plaintiff away from his cellmate, William, who ultimately assaulted plaintiff. For the reasons enumerated above with regard to Officer Hull, plaintiff has failed to state a claim for deliberate indifference to health or safety. Accordingly, the Court GRANTS defendants' motion to dismiss this claim.

2. Elder Abuse

Plaintiff alleges that Lieutenant Bishop committed elder abuse against him by forcing him to remain cellmates with William, which ultimately placed his health and safety in jeopardy. For the reasons described above with regard to Officer Hull, plaintiff has failed to state a claim for elder abuse. Accordingly, the Court GRANTS defendants' motion to dismiss this claim.

3. Due Process Rights

Plaintiff alleges that Lieutenant Bishop violated his Fourteenth Amendment rights by denying him a fair disciplinary hearing. FAC at 9. Specifically, plaintiff alleges that Lieutenant Bishop denied plaintiff's requests for a continuance, an investigator, and a polygraph test. For the reasons that follow, the Court finds that plaintiff has not alleged that the November 30, 2007 disciplinary hearing deprived him of due process.

First, plaintiff argues that Lieutenant Bishop should have granted his request for a continuance because Lieutenant Bishop had 23 more days in which to conduct the disciplinary hearing. The due process time constraints governing disciplinary hearings do not support plaintiff's argument. Title 15 section 3320 of the California Code of Regulations establishes the timing requirements and procedures for hearings within the California Department of Corrections. Cal. Code Regs. tit. 15, at §3320. While plaintiff's assertion that Lieutenant Bishop had a total of 30 days to conduct plaintiff's disciplinary hearing is correct, see section 3320(b), the regulations only require that plaintiff receive at least 24 hours to review the documentary evidence and prepare for the hearing, pursuant to section 3320(c)(1)-(2). Here, plaintiff had 7 days to review the documentary evidence and prepare for his hearing. Nothing in the regulations indicates that prison officials are required to provide prisoners with additional time to prepare, as long as these minimum requirements are satisfied. Moreover, plaintiff has not alleged any facts which suggest there were exceptional circumstances that would justify a delay. Cal. Code Regs. tit. 15, at §3000 ("Exceptional Circumstances means circumstances beyond the control of the department or the inmate that prevent the inmate or requested witnesses from participating in the disciplinary hearing within established time limitations. Examples of this as applied to an inmate would include a serious temporary mental or physical impairment verified in writing by a licensed clinical social worker, licensed psychologist, psychiatrist, or physician.").

Second, plaintiff argues that Lieutenant Bishop denied him due process by failing to assign him an investigator or assistant. In Wolff, the Supreme Court held that the due process clause requires prison officials to allow prisoners to seek the aid of inmates or staff if the inmate is illiterate "or [where] the complexity of the issue makes it unlikely that the inmate will be able to collect and present the evidence necessary for an adequate comprehension of the case." Brown v. McCormick, 89 F.3d 844, 844 (9th Cir. 1996) (citing Wolff, 418 U.S. at 570). Plaintiff's FAC is hand written, summarizes the content of the RVR, and displays significant legal research. It is clear that plaintiff is literate. Further, the charge presented against plaintiff was for failing to comply with a peace officer's orders, an issue which is not particularly complex. Thus, plaintiff has not stated a claim for violation of his due process rights based on the denial of a staff investigator or assistant.

Third, Lieutenant Bishop was not obligated to administer a polygraph test. Section 3293 of title 15 of the California Code of Regulations states that "polygraph examinations may be administered . . . in the course of an investigation of official matters." 15 CCR § 3293 (emphasis added). This language is permissive, not mandatory. Therefore, Lieutenant Bishop's failure to administer a lie detector test cannot form the basis for a due process claim.

Finally, plaintiff's allegations indicate that he was given all the due process protections outlined in Wolff, discussed supra, during his disciplinary hearing before Lieutenant Bishop. In particular, plaintiff received a copy of the RVR within 15 days of the date of discovery of the RVR; he appeared before Lieutenant Bishop, the Senior Hearing Officer, within 30 days of the date of service of the RVR; he received all relevant documents at least 24 hours in advance of the disciplinary hearing; and he was given the opportunity to enter a plea and make a statement on his own behalf. FAC at 8-12. Because plaintiff has not alleged facts that indicate that his due process rights were violated, the Court GRANTS defendants' motion to dismiss this claim.

4. Vicarious Liability

Plaintiff alleges that Lieutenant Bishop should be held vicariously liable because he "facilitated, approved and condoned the mistreatment that Mr. Kimble and Mr. Hull inflicted on [plaintiff]" when he stated that "it did not matter who was right or wrong [because Lieutenant Bishop] was always going to support his subordinates." FAC at 19. Plaintiff further alleges that as a supervisor, Lieutenant Bishop should have taken some corrective action rather than force plaintiff to remain confined with an incompatible cellmate who ultimately assaulted him. Id. For the reasons below, this claim fails.

Because vicarious liability "is inapplicable to . . . § 1983 suits," a plaintiff wishing to hold a supervisor liable for actions of his subordinates must show "that each Government-official defendant, through the official's own actions, has violated the Constitution." Iqbal, 556 U.S. at 676-77. A plaintiff can state a claim either by showing that the defendant was personally involved in the constitutional deprivation, or that a sufficient causal connection exists between the defendant's wrongful conduct and the resulting constitutional violation. Lolli v. County of Orange, 351 F.3d 410, 418 (9th Cir. 2003); Jones v. Williams, 297 F.3d 930, 937 (9th Cir. 2002). A sufficient causal connection may be demonstrated by alleging: (1) the supervisor's own culpable action or inaction in the control of subordinates; (2) the supervisor's acquiescence in the constitutional deprivation of which a complaint is made; or (3) the supervisor's conduct demonstrated a reckless or callous indifference to the rights of others. Lemire v. California Dep't of Corr. & Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013).

First, plaintiff has not alleged any facts indicating that Lieutenant Bishop was involved in the pepper-spraying incident, which plaintiff alleges violated his Eighth Amendment rights. Nor has plaintiff alleged any facts indicating that Lieutenant Bishop's actions or inaction in supervising his subordinates led to plaintiff being pepper-sprayed, or that Lieutenant Bishop's inattention to his subordinates allowed them to inflict harsher punishment on plaintiff than was warranted. Lieutenant Bishop is not identified as one of the officers present during the pepper-spraying incident. By all accounts, Lieutenant Bishop only learned of the incident when Officer Hull filed the RVR. Thus, plaintiff has failed to allege any culpable action or inaction by Lieutenant Bishop that would support a claim of vicarious liability.

Second, plaintiff has not alleged any facts demonstrating that Lieutenant Bishop acquiesced to a constitutional deprivation committed by his subordinates. Nothing alleged by plaintiff indicates that Lieutenant Bishop even knew about the pepper- spraying incident before it was reported to him by Officer Hull. See Cunningham v. Gates, 229 F.3d 1271, 1289 (9th Cir. 2000) ("Officers can be held liable for failing to intercede only if they had an opportunity to intercede"); see also Adams v. Kraft, 2011 WL 3240598, at *21 (N.D. Cal. July 29, 2011) ("Police officers have a duty to intercede when fellow officers commit violations, but must have a realistic opportunity to intercede."). Additionally, because the Court has already determined that plaintiff has failed to allege a constitutional deprivation, Lieutenant Bishop cannot be said to have acquiesced to such a deprivation. Thus, plaintiff has failed to allege facts sufficient to support vicarious liability based on Lieutenant Bishop's acquiescence.

Finally, plaintiff has not alleged facts to show that Lieutenant Bishop displayed "reckless or callous indifference" to his rights in either the pepper-spraying incident, or in refusing to assign plaintiff a different cellmate. As above, Lieutenant Bishop was not present at the pepper-spraying incident, so he could not have been reckless or indifferent to plaintiff's rights as the incident was happening. Plaintiff only alleges that Lieutenant Bishop was indifferent to plaintiff's rights by stating that he would support his subordinates regardless of who pepper-sprayed plaintiff. This allegation alone is insufficient to state a claim for deliberate indifference. See generally Kraft, 2011 WL 3240598, at *22 (utilizing the deliberate indifference standard when analyzing supervisory liability claims); see also Canell v. Lightner, 143 F.3d 1210, 1213 (9th Cir. 1998) (holding that, to establish supervisorial liability for failure to train, a plaintiff must show that the failure "amounted to deliberate indifference").

With regard to plaintiff's cellmate assignment, as described supra, plaintiff fails to allege facts which show deliberate indifference to his safety. Thus, Lieutenant Bishop did not display "reckless or callous indifference" to plaintiff's rights, as required to support a claim for vicarious liability. Accordingly, the Court GRANTS defendants' motion to dismiss this claim.

5. Violation of the Americans with Disabilities Act

Finally, plaintiff alleges that Lieutenant Bishop violated the ADA when he returned him to his assigned cell with William. This claim also fails. The ADA protects "qualified individuals with a disability" from discrimination by any state or local government or subdivision thereof. 42 U.S.C. §12131. To be considered disabled the individual must have "a physical or mental impairment that substantially limits one or more major life activities of such individual." 42 U.S.C. §12102. Plaintiff has failed to allege any facts indicating that his physical injuries and medical conditions "substantially limit" any of his major life activities. Thus, plaintiff does not fall under the protection of the ADA. Accordingly, the Court GRANTS defendant's motion to dismiss this claim.

V. CONCLUSION

For the reasons stated above, the Court hereby GRANTS defendants' motion to dismiss the FAC in its entirety, without prejudice. Plaintiff shall have until Friday , September 18, 2015 , to file a Second Amended Complaint addressing the deficiencies identified herein. Failure to file a Second Amended Complaint by this deadline will result in dismissal of the action, with prejudice. Dated: August 4, 2015

/s/_________

CHRISTINA A. SNYDER

UNITED STATES DISTRICT JUDGE