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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

DARRYL BURGHARDT,

Plaintiff,

v.

J. FRANZ, et al.,

Defendants.

Case No. 17-cv-00339-BLF 

ORDER DENYING IN PART AND 

GRANTING WITH LEAVE TO 

AMEND IN PART DEFENDANTS

BRAGGER, FRANZ, AND KELLEY’S

MOTION TO DISMISS

[Re: ECF 56]

Before the Court is Defendants K. Bragger, J. Franz, and G.A. Kelley’s1 motion to dismiss 

Plaintiff Darryl Burghardt’s First Amended Complaint. Mot., ECF 56. In his complaint, Plaintiff 

claims various civil rights violations against Defendants, who work or worked in Pelican Bay 

State Prison when Plaintiff was an inmate there. For the reasons discussed below and as stated on 

the record at the hearing on August 1, 2019, the motion is DENIED IN PART AND GRANTED 

WITH LEAVE TO AMEND IN PART.

I. BACKGROUND2

In August 2012, Plaintiff was an inmate at Pelican Bay State Prison. First Am. Compl. 

(“FAC”) ¶ 10, ECF 53. On August 19, 2012, Plaintiff began requesting a custody form. Id. On 

August 27, 2012, during the breakfast meal, Plaintiff asked Defendants Franz and Graham

(correctional officers at the prison) to provide him a custody form or to summon a supervisor. 

Id. ¶ 12. Franz and Graham refused both requests. Id. ¶ 13. As a result of these refusals, and in 

 

1 Plaintiff has not been able to successfully serve Defendant R. Graham.

2 Plaintiff’s well-pled factual allegations are accepted as true for purposes of the motion to

dismiss. See Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681, 690 (9th Cir. 2011).
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an attempt to attract a supervisor’s attention, Plaintiff withheld his food tray. Id. ¶ 14. In 

response, Franz threatened to restrict Plaintiff’s food and access to program. Id. ¶ 15. Graham 

told other inmates housed in Plaintiff’s section that Plaintiff was responsible for the delay in 

program. Id. ¶ 16. Franz filed a rules report violation regarding Plaintiff’s refusal to give up his 

food tray, which resulted in certain restrictions on Plaintiff’s privileges. Id. ¶ 18 & Ex. A at 4–5. 

Later that day, two other officers provided Plaintiff a custody form, and Plaintiff relinquished his 

tray. Id. ¶ 17.

On August 28, 2012, Plaintiff filed an inmate appeal against Franz and Graham based on 

the August 27, 2012 incidents. Id. ¶ 19. When Plaintiff refused to withdraw the grievance, Franz 

began harassing Plaintiff. Id. ¶ 20. On September 14, 2012, Franz deliberately smashed 

Plaintiff’s hand in the food port during the breakfast pick up. Id. Plaintiff informed Defendant 

Kelley of Franz’s conduct, including his threats to restrict food and his smashing Plaintiff’s hand, 

but Defendant Kelley did not address Franz’s action. Id. ¶¶ 21, 24. On September 16, 2012, 

Plaintiff filed an inmate appeal against Franz based on the September 14, 2012 incident.

After Franz smashed Plaintiff’s hand in the food port, Plaintiff’s hand was bleeding and in 

pain. Id. ¶ 22 & Ex. C. Plaintiff sought medical attention for his hand. Id. ¶ 22 & Ex. C. That 

same day, Defendant Bragger evaluated Plaintiff. Id. ¶ 23. Plaintiff alleges that Bragger denied 

him appropriate medical treatment by, for example, refusing to refer Plaintiff to an appropriate 

medical specialist for further treatment and refusing to accurately record Plaintiff’s statements in 

the medical report. Id.

The procedural history that followed these events is long and somewhat winding, but also 

irrelevant to the present motion, so the Court does not recount it here. Suffice it to say that on 

January 23, 2017, Plaintiff filed the instant civil rights action pro se. ECF 1. On January 31, 

2018, Plaintiff was appointed the right to counsel, ECF 34, and on November 13, 2018, Plaintiff’s 

present counsel appeared in this case, ECF 45, 46. On February 22, 2019, pursuant to Court order 

and the parties’ stipulation, Plaintiff filed his First Amended Complaint (“FAC”). ECF 53. In the 

FAC, Plaintiff asserts the following claims: (1) 42 U.S.C. § 1983 – Violation of the First 

Amendment (against Franz, Graham, and Kelley); (2) 42 U.S.C. § 1983 – Violation of the Eighth 
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Amendment (against Franz and Kelley); and (3) 42 U.S.C. § 1983 – Violation of the Eighth 

Amendment (against Bragger). See generally id.

On March 8, 2019, Franz, Kelley, and Bragger (collectively, “Defendants”) filed the 

instant motion to dismiss. ECF 56. The Court held a hearing on the motion on August 1, 2019.

II. LEGAL STANDARD

“A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a 

claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” Conservation 

Force v. Salazar, 646 F.3d 1240, 1241–42 (9th Cir. 2011) (quoting Navarro v. Block, 250 F.3d 

729, 732 (9th Cir. 2001)). When determining whether a claim has been stated, the Court accepts 

as true all well-pled factual allegations and construes them in the light most favorable to the 

plaintiff. Reese, 643 F.3d at 690. However, the Court need not “accept as true allegations that 

contradict matters properly subject to judicial notice” or “allegations that are merely conclusory, 

unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 

F.3d 1049, 1055 (9th Cir. 2008) (internal quotation marks and citations omitted). While a 

complaint need not contain detailed factual allegations, it “must contain sufficient factual matter, 

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is 

facially plausible when it “allows the court to draw the reasonable inference that the defendant is 

liable for the misconduct alleged.” Id. On a motion to dismiss, the Court’s review is limited to 

the face of the complaint and matters judicially noticeable. MGIC Indem. Corp. v. Weisman, 803 

F.2d 500, 504 (9th Cir. 1986); N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 

1983). 

In deciding whether to grant leave to amend, the Court must consider the factors set forth 

by the Supreme Court in Foman v. Davis, 371 U.S. 178 (1962), and discussed at length by the 

Ninth Circuit in Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048 (9th Cir. 2009). A district 

court ordinarily must grant leave to amend unless one or more of the Foman factors is present: (1) 

undue delay, (2) bad faith or dilatory motive, (3) repeated failure to cure deficiencies by 

amendment, (4) undue prejudice to the opposing party, or (5) futility of amendment. Eminence 
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Capital, 316 F.3d at 1052. “[I]t is the consideration of prejudice to the opposing party that carries 

the greatest weight.” Id. However, a strong showing with respect to one of the other factors may 

warrant denial of leave to amend. Id.

III. DISCUSSION

Defendants move to dismiss the First Amendment retaliation claim against both Kelley and 

Franz based on the August 2012 incident, both the First Amendment and Eighth Amendment 

claims against Kelley, and the Eighth Amendment claim against Bragger.3

The Court addresses each argument with respect to each Defendant in turn.

A. First Amendment Retaliation Claim Against Franz

Defendants first argue that Plaintiff has failed to state a retaliation claim against Franz

based on the August 27, 2012 incident, in which Franz threatened to withhold food and program 

from Plaintiff. See Mot. at 6–7.

“Within the prison context, a viable claim of First Amendment retaliation entails five basic 

elements: (1) an assertion that a state actor took some adverse action against an inmate (2) because 

of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of 

his First Amendment rights, and (5) the action did not reasonably advance a legitimate 

correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); accord Shepard v. 

Quillen, 840 F.3d 686, 688 (9th Cir. 2016).

Defendants argue that Plaintiff fails to allege only elements one and five—that Franz took 

an adverse action and that Franz’s actions did not serve a legitimate correctional goal. As to the 

former, Defendants argue that Plaintiff’s allegation that Franz “threaten[ed] to restrict Plaintiff’s 

food and access to program” is too vague because it does not specifically identify what Franz 

threatened to do, such as what food he planned to restrict. Mot. at 7. As to the correctional goal, 

Defendants argue that Plaintiff fails to demonstrate the restrictions placed on his food were not 

legitimate punishment for his withholding his food tray. See id.

 

3 Defendants also argued that they are immune from damages claims for claims brought against 

them in their official capacities, see Mot. at 12 – 13, but they withdrew this argument in reply, see 

Reply at 6, ECF 62.
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The Court agrees with Plaintiff that he has sufficiently alleged a claim of retaliation against 

Franz. As an initial matter, Plaintiff alleges that in September Franz smashed Plaintiff’s hand as a 

direct result of Plaintiff’s refusal to withdraw the grievance he had filed in August 2012. See FAC 

¶¶ 19–20. As alleged, this action was both adverse and without a legitimate correctional goal. 

Indeed, Defendants do not argue to the contrary. Thus, Plaintiff’s First Amendment claim against 

Franz survives on this ground alone. 

Moreover, Plaintiff’s allegations with respect to Franz’s August threat to withhold 

Plaintiff’s food in response to Plaintiff’s request for a custody form is similarly sufficiently pled. 

Plaintiff provides sufficient detail to plausibly allege that Franz committed the adverse action of

threating to withhold food or program from Plaintiff. See Shepard, 840 F.3d at 689 (“‘[T]he mere 

threat of harm can be an adverse action’ in the retaliation context.” (quoting Brodheim v. Cry, 584 

F.3d 1262, 1270 (9th Cir. 2009)). These allegations are sufficiently detailed to put Defendants on 

notice under Federal Rule of Civil Procedure 8 of the bases of the claim against Franz, namely that 

he acted adversely by threatening to withhold food. See FAC ¶¶ 13–15, 45. 

Plaintiff also plausibly alleges that there was no legitimate correctional goal for Franz’s 

threat. Though Plaintiff refused to return his tray, the FAC alleges that Franz refused the custody 

form before Plaintiff refused to return his tray. See id. ¶ 14. Thus, Franz’s alleged retaliatory 

actions began before Plaintiff’s potential wrongdoing, such that, drawing all inferences for the 

Plaintiff and accepting his allegations as true, Franz’s threat to withhold food was a response to 

the request for the custody form, not a response to the tray being withheld. See Bruce v. Ylst, 351 

F.3d 1283, 1289 (9th Cir. 2003) (citing Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir.1985)).

Thus, Defendant’s motion to dismiss Plaintiff’s First Amendment claim against Franz is 

DENIED.

B. Claims Against Defendant Kelley

Defendants next moves to dismiss both the First Amendment and Eighth Amendment 

claims against Defendant Kelley, who was Franz’s supervisor at the relevant time, because 

Plaintiff has not alleged that Kelley was sufficiently involved in any deprivation of Plaintiff’s 

constitutional rights. See Mot. at 8–9.
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An official who is a supervisor may be held liable under § 1983 “if there exists either (1) 

his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal 

connection between the supervisor’s wrongful conduct and the constitutional violation.” Starr v. 

Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (internal quotation marks and citation omitted). “The 

requisite causal connection can be established . . . by setting in motion a series of acts by 

others, . . . or by knowingly refus[ing] to terminate a series of acts by others, which [the 

supervisor] knew or reasonably should have known would cause others to inflict a constitutional 

injury.” Id. (internal quotation marks and citation omitted) (alterations in original). “A supervisor 

can be liable in his individual capacity for his own culpable action or inaction in the training, 

supervision, or control of his subordinates; for his acquiescence in the constitutional deprivation; 

or for conduct that showed a reckless or callous indifference to the rights of others.” Id. (internal 

quotation marks and citation omitted).

The Court agrees with Defendants that Plaintiff has not stated a claim against Defendant 

Kelley. Plaintiff alleges that he told Kelley about Franz’s actions in September after both of 

Franz’s allegedly retaliatory and harmful actions (withholding food and smashing Plaintiff’s 

hand). FAC ¶ 21. Plaintiff does not allege that Kelley knew about these acts before they 

occurred. Thus, Plaintiff has not alleged that Kelley either set in motion Franz’s acts or 

knowingly refused to terminate them. Moreover, Plaintiff does not allege any facts showing that 

Kelley knew or should have known that Defendant Franz would retaliate against or harm Plaintiff 

in these ways. Nor does Plaintiff allege some failure by Kelley in training, supervision, or control 

of Franz. Finally, though Plaintiff eventually informed Kelley of Franz’s actions after the fact, 

Plaintiff does not allege the Franz performed any other unconstitutional acts after Plaintiff 

informed Kelley of Franz’s previous actions, or that Plaintiff was injured by any acts subsequent 

to his informing Kelley of Franz’s allegedly unconstitutional acts. Thus, Plaintiff has not 

sufficiently alleged that Kelly was involved in any way in any unconstitutional acts by Franz.

Because Plaintiff may be able to cure these deficiencies with amendment, Plaintiff’s First 

Amendment and Eighth Amendment claims against Kelley are DISMISSED WITH LEAVE TO 

AMEND.
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United States District Court

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C. Eighth Amendment Claim Against Bragger

Defendants move to dismiss Plaintiff’s Eighth Amendment claim against Defendant 

Bragger because neither of Plaintiff’s theories of deliberate indifference—that Bragger failed to 

accurately record Plaintiff’s statements and failed to refer him to a specialist—are plausibly pled. 

See Mot. at 10–12.

“A prison official cannot be found liable under the [Eighth Amendment] for denying an 

inmate humane conditions of confinement unless the official knows of and disregards an excessive 

risk to inmate health or safety; the official must both be aware of facts from which the inference 

could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. 

In other words, the official must demonstrate a subjective awareness of the risk of harm.” Castro 

v. Cty. of Los Angeles, 833 F.3d 1060, 1068 (9th Cir. 2016) (en banc) (internal quotation marks 

and citations omitted).

Prison officials violate the Eighth Amendment if they are “deliberate[ly] indifferen[t] to [a 

prisoner’s] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). “A medical need 

is serious if failure to treat it will result in significant injury or the unnecessary and wanton 

infliction of pain.” Peralta v. Dillard, 744 F.3d 1076, 1081 (9th Cir. 2014) (internal quotation 

marks and citation omitted). “Examples of serious medical needs include ‘[t]he existence of 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; or the existence of chronic and substantial pain.’” Lopez v. Smith, 203 F.3d 1122, 1131 

(9th Cir. 2000) (alteration in original) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059–60 (9th 

Cir. 1992)). “A prison official is deliberately indifferent to that need if he ‘knows of and 

disregards an excessive risk to inmate health.’” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 

837 (1994)). Deliberate indifference “requires more than ordinary lack of due care for the 

prisoner’s interests or safety.” Farmer, 511 U.S. at 835 (internal quotation marks and citation 

omitted).

The Court agrees with Defendants that Plaintiff fails to plausibly plead a serious medical 

need and that Bragger was deliberately indifferent toward that need. Plaintiff alleges that Franz 
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“deliberately smashed Plaintiff’s hand in the food port” and that, as a result, Plaintiff’s hand was 

in pain and bleeding. FAC ¶¶ 20, 22. These facts are not sufficient to demonstrate that Plaintiff 

had a “significant injury” of a type “a reasonable doctor or patient would find important and 

worthy of comment or treatment.” Lopez, 203 F.3d at 1131. On these allegations alone, it is 

possible that Plaintiff’s hand was bleeding due to a mere scratch or that the pain was minimal, 

such that it did not warrant treatment. Thus, it is equally possible on these allegations that 

Plaintiff’s injury was only minor, which is not sufficient to amount to a serious medical need. See, 

e.g., MacFalling v. Nettleton, No. 17-CV-2399-SVW, 2017 WL 3498616, at *7 (C.D. Cal. Aug. 

15, 2017) (finding no serious medical need alleged where too-tight handcuffs caused cuts, 

abrasions, and swollen hands, because the plaintiff did not allege that the symptoms persisted); 

Telles v. Stanislaus Cty. Sheriff’s Dep’t, No. 1:10-CV-01911 AWI, 2011 WL 2036962, at *4–*5 

(E.D. Cal. May 24, 2011) (finding no serious medical need alleged where plaintiff alleged only 

that he incurred substantial cuts and bruises after other inmates whipped him with chains, but he 

did not allege the extent of his injuries).

Moreover, Plaintiff has failed to plausibly plead that either of Bragger’s alleged failures 

constitutes deliberate indifference to an excessive risk to Plaintiff’s health, or that the failures 

injured Plaintiff. As to Bragger’s failure to accurately record Plaintiff’s statements, FAC ¶ 23, 

Plaintiff has not alleged how this failure caused him any harm, or that Bragger’s failure to 

properly document Plaintiff’s statements was intentional or demonstrates deliberate indifference to 

Plaintiff’s alleged injury. As alleged, Bragger’s failure demonstrates, at most, a lack of due care. 

See Farmer, 511 U.S. at 835. Likewise, Plaintiff has not plausibly alleged that Bragger’s failure 

to refer Plaintiff to an appropriate medical specialist constitutes deliberate indifference. Even if 

Plaintiff had alleged that his hand injury was sufficiently serious, he has not alleged facts 

demonstrating that he should have been referred to an appropriate medical specialist, and that 

Bragger’s failure to do so demonstrates intentional indifference to an excessive risk to Plaintiff’s 

health. Again, without more, Plaintiff has not alleged anything more than a mere possibility that 

Bragger was deliberately indifferent to his medical needs. Moreover, Plaintiff does not allege any 

harm that the failure to refer may have caused him.
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Thus, Plaintiff fails to plead that Bragger acted with deliberate indifference toward 

Plaintiff. Because Plaintiff may be able to cure these deficiencies with amendment, Plaintiff’s 

Eighth Amendment claim against Bragger is DISMISSED WITH LEAVE TO AMEND.

IV. ORDER

For the foregoing reasons, Defendants’ motion to dismiss the First Amended Complaint is 

DENIED IN PART AND GRANTED WITH LEAVE TO AMEND IN PART. Plaintiff’s 

amended complaint is due on or before 90 days from the date of this Order. Plaintiff should 

file a redlined complaint as an exhibit to his amended complaint. Failure to meet the deadline to 

file an amended complaint or failure to cure the deficiencies identified in this Order will result in a 

dismissal of Plaintiff’s claims with prejudice. Leave to amend is limited to the defects addressed 

in the Order. Plaintiff may not add new claims or parties absent express leave of Court.

IT IS SO ORDERED.

Dated: August 5, 2019

______________________________________

BETH LABSON FREEMAN

United States District Judge