MEMORANDUM AND ORDER RE: MOTION TO DISMISS

WILLIAM B. SHUBB, District Judge.

Plaintiff Benjamin Stroman brought this civil rights action against five employees of Valley State Prison ("VSP") arising out of injuries he allegedly suffered while incarcerated there. Defendants Ron Davis and R. Quesada now move to dismiss plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.1

I. Factual & Procedural History

On March 10, 2013, plaintiff was allegedly attacked by three inmates at VSP. (Compl. ¶ 19 (Docket No. 1).) These inmates bound him to a railing on the top tier of the housing unit and doused him with water. (Id.) They then carried plaintiff downstairs into cell #125, which was used as the inmate restroom. (Id. ¶ 20.) One of the inmates ran out of cell #125, obtained an ADA chair with wheels and no seat bottom, and brought the chair into the cell. (Id. ¶ 23.)

Plaintiff then alleges that the inmates stripped him naked from the waist down, tied him to the chair, and wheeled him out of cell #125 into the day room. (Id. ¶ 24.) The inmates then pushed plaintiff around the day room while yelling homophobic slurs, asking if the other inmates wanted to "take a ride," and inviting other prisoners to "come and get some." (Id. ¶ 25.) They then pushed plaintiff to the base of the stairs, poured a white, powdery substance on plaintiff, and rubbed this substance on plaintiff's face and genitals. (Id. ¶ 26.) Plaintiff alleges that defendant S. Clement, a correctional officer at VSP, yelled that plaintiff should be thankful "because now he was white." (Id.)

After pouring powder on plaintiff, one of the inmates allegedly grabbed what appeared to be a broomstick or plunger and simulated shoving the object into plaintiff's anus. (Id. ¶ 27.) At this point, another inmate, Mr. Franklin, demanded that the three inmates stop. (Id. ¶ 28.) After a brief verbal altercation, the inmates released plaintiff from his restraints. (Id.) Plaintiff alleges that VSP staff, including defendants Clement, R. Fleming, and D. Bunch, watched and laughed as these events transpired. (Id. ¶ 29.)

On March 15, 2013, Lieutenant Quesada allegedly summoned Darryl Geyer, an inmate who witnessed these events, to his office. (Id. ¶ 30.) Quesada told Geyer that he was going to write up the three inmates for "excessive horseplay." (Id.) Quesada allegedly instructed Geyer to falsify his report of the incident to state that the three inmates were merely "running around the dayroom, snapping towels at each other and throwing water on each other." (Id.) He specifically told Geyer to omit any details about any inmate being tied up or abused. (Id.)

Plaintiff brought this action against Clement, Bunch, Fleming, Quesada, and Davis, the Warden of VSP.2 Plaintiff asserts the following claims against all defendants: (1) a claim under 42 U.S.C. § 1983 premised on violations of the Eighth Amendment; (2) a claim under § 1983 premised on violations of the Equal Protection Clause of the Fourteenth Amendment; (3) a claim for violations of Article I, section 7(a) of the California Constitution; (4) a claim for violations of Article I, section 17 of the California Constitution; (5) two claims under section 52.1 of the California Civil Code premised on violations of sections 7(a) and 17 of the California Constitution; and (6) a claim for intentional infliction of emotional distress ("IIED"). Warden Davis and Lieutenant Quesada (collectively "moving defendants") now move to dismiss plaintiff's Complaint for failure to state a claim upon which relief can be granted. (Docket No. 16.)

II. Discussion

On a motion to dismiss under Rule 12(b)(6), the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). To survive a motion to dismiss, a plaintiff must plead "only enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This "plausibility standard," however, "asks for more than a sheer possibility that a defendant has acted unlawfully," and where a complaint pleads facts that are "merely consistent with a defendant's liability," it "stops short of the line between possibility and plausibility." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557).

A. 42 U.S.C. § 1983

In relevant part, § 1983 provides:

42 U.S.C. § 1983. While § 1983 is not itself a source of substantive rights, it provides a cause of action against any person who, under color of state law, deprives an individual of federal constitutional rights or limited federal statutory rights. Id.; Graham v. Connor, 490 U.S. 386, 393-94 (1989).

1. Claims Against Warden Davis

Government officials are not vicariously liable for their subordinates' wrongdoing under § 1983. See Iqbal, 556 U.S. at 676. In order to allege a § 1983 claim against a supervisor defendant, a plaintiff must allege either that the supervisor had some "personal involvement in the constitutional deprivation" or that there was "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).

Plaintiff alleges that Davis was the Warden of VSP and that he was "responsible for the oversight, maintenance, and policy making decisions of VSP." (Compl. ¶ 6.) Plaintiff alleges no other facts suggesting that Warden Davis knew of any other defendant's alleged misconduct, let alone that he had any personal involvement in the events giving rise to this lawsuit. Absent any allegations suggesting that Warden Davis was involved in or sufficiently connected to the misconduct alleged in the Complaint, plaintiff fails to state a § 1983 claim against him. See Starr, 652 F.3d at 1207. Accordingly, the court must grant Davis's motion to dismiss this claim.

2. Lieutenant Quesada

Plaintiff's claims against Lieutenant Quesada turn on the allegation that Quesada covered up other defendants' misconduct by instructing an inmate, Darryl Geyer, to submit a false incident report. (Compl. ¶ 30.) "Allegations that officials engaged in a cover-up state a constitutional claim only if the cover-up deprived plaintiff of his right of access to courts by causing him to fail to obtain redress for the constitutional violation that was the subject of the cover-up." Lee v. Whitten, Civ. No. 2:12-2104 GEB KJN P, 2012 WL 4468420, at *4 (E.D. Cal. Sept. 25, 2012) (citing Karim-Pahani v. L.A. Police Dep't, 839 F.2d 621, 625 (9th Cir. 1988)).

In order to prevail on a cover-up claim, a plaintiff must offer more than a "mere[] guess" that the defendant's conduct will result in the defeat of his constitutional claims. Delew v. Wagner, 143 F.3d 1219, 1222 (9th Cir. 1998). Rather, he must allege that the defendant's conduct actually prevented him from litigating that constitutional claim—in other words, that he was "shut out of court" as a result of the defendant's efforts to cover up the constitutional violation. Christopher v. Harbury, 536 U.S. 403, 415 (2002).

Here, plaintiff has not alleged any facts suggesting that Lieutenant Quesada's conduct has prevented him from litigating his constitutional claims against Bunch, Clement, or Fleming; in fact, none of those three defendants have yet been served. Plaintiff therefore has not alleged, and cannot allege, that he has been denied access to the courts. See Delew, 143 F.3d at 1223. Accordingly, the court must grant Lieutenant Quesada's motion to dismiss this claim.

B. California Constitution & Civil Code Section 52.1

In addition to his constitutional claims under the Eighth and Fourteenth Amendments, plaintiff asserts two claims under the California Constitution: (1) an equal protection claim under Article I, section 7(a), and (2) a cruel and unusual punishment clause claim under Article I, section 17. Plaintiff's claims under the California Constitution are unavailing, however, because neither provision creates a private right of action. See Katzberg v. Regents of Univ. of Cal., 29 Cal.4th 300, 329 (2000) (no private right of action under section 7(a)); Giraldo v. Cal. Dep't of Corr. & Rehab., 168 Cal.App.4th 231, 256 (1st Dist. 2009) (no private right of action under section 17).

Although California does not recognize a private right of action under sections 7(a) or 17, it permits plaintiffs to sue for violations of these provisions under section 52.1 of the California Civil Code, which is "the California state law analog to section 1983." Johnson v. Bay Area Rapid Transit Dist., 724 F.3d 1159, 1167 (9th Cir. 2013). However, not all violations of the California Constitution are cognizable under section 52.1. In order to prevail on his claim under section 52.1, a plaintiff must allege not only that the defendant deprived him of an interest protected by the California Constitution, but that he did so using "threats, intimidation, or coercion." Cal. Civ. Code § 52.1(a); Jones v. Kmart Corp., 17 Cal.4th 329, 334 (1998).

As the court has explained, plaintiff has not alleged that Warden Davis was personally involved in any of the events alleged in the complaint, let alone that he ever threatened, intimidated, or coerced plaintiff. Cal. Civ. Code § 52.1(a). Plaintiff therefore has not stated a claim against Warden Davis under section 52.1.

With respect to Lieutenant Quesada, plaintiff alleges only that he instructed another inmate, Geyer, to submit a false incident report. (Compl. ¶ 30.) As a preliminary matter, it is not clear that section 52.1 permits a claim premised on coercion directed towards a third party. See Rodriguez v. City of Fresno, 819 F.Supp.2d 937, 954 (E.D. Cal. 2011) (Ishii, J.) (holding that a section 52.1 claim could not be premised on application of force to a bystander absent a showing of coercion directed towards the plaintiff). The court need not resolve this question, however, because plaintiff has not alleged any facts suggesting that Lieutenant Quesada coerced or attempted to coerce Geyer into submitting a false incident report and therefore has not stated a section 52.1 claim against Lieutenant Quesada.

Accordingly, because plaintiff has not alleged a deprivation of any right by "threats, intimidation, or coercion," Cal. Civ. Code § 52.1(a), the court must grant the moving defendants' motion to dismiss these claims.

C. Intentional Infliction of Emotional Distress

In California, the tort of IIED has three elements: "(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct." Hughes v. Pair, 46 Cal.4th 1035, 1050 (2009) (citations and internal quotation marks omitted). "A defendant's conduct is outrageous when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community." Id. at 1050-51 (citations and internal quotations marks omitted). "[T]he defendant's conduct must be intended to inflict injury or engage in with the realization that injury will result." Id. at 1051 (citations and internal quotation marks omitted).

Here, plaintiff does not allege any facts suggesting that Warden Davis or Lieutenant Quesada engaged in extreme or outrageous conduct, let alone any facts suggesting a causal connection between that conduct and any purported emotional distress he suffered. Rather, this claim consists of a boilerplate, four-sentence recitation of the elements of IIED. (See Compl. ¶ 74-75.) This is the exact sort of "unadorned, the-defendant-unlawfully-harmed-me accusation" that does not constitute a plausible claim for relief. Iqbal, 556 U.S. at 678. Plaintiff's Memorandum in Opposition to defendants' Motion to Dismiss does not identify any reason why he states a plausible claim for IIED; in fact, it does not even address this claim. (See Docket No. 17.) Accordingly, the court must grant moving defendants' motion to dismiss this claim.

IT IS THEREFORE ORDERED that moving defendants' motion to dismiss plaintiff's Complaint as against them be, and the same hereby is, GRANTED.

Plaintiff may file an amended Complaint within twenty days of the date this Order is signed, if he can do so consistent with this Order.