Atherley v. Kernan

• Court: District Court, S.D. California
• Decided: April 29, 2020
• Docket: 3:19-cv-02355
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 EDLY A. ATHERLEY, II, Case No.: 3:19-cv-02355-LAB-KSC CDCR #AY-8220, 12 ORDER: Plaintiff, 13 vs. (1) GRANTING MOTION 14 TO PROCEED IN FORMA PAUPERIS

15 [ECF No. 2] SCOTT KERNAN, et al., 16 Defendants. (2) DENYING MOTION TO APPOINT 17 COUNSEL [ECF No. 7] 18

19 AND

20 (3) DISMISSING DEFENDANTS 21 AND CLAIMS PURSUANT TO 28 U.S.C. § 1915(e)(2) AND 22 28 U.S.C. § 1915A(b) 23 24 Plaintiff Edly A. Atherley, II, currently incarcerated at Mule Creek State Prison in 25 Ione, California, and proceeding pro se, has filed a civil rights Complaint pursuant to 42 26 U.S.C. § 1983. See “Compl.,” ECF No. 1 at 1. Plaintiff seeks to sue almost two dozen 27 correctional and appeals officials for allegedly violating his First, Eighth, and Fourteenth 28 Amendment rights while he was incarcerated at Richard J. Donovan Correctional Facility 1 (“RJD”) in San Diego, and California State Prison- Los Angeles County (“LAC”) from 2 July 2017 through September 2019. Id. at 8-20. He seeks $5 million in general and 3 punitive damages, and injunctive relief enjoining “further retaliation,” and the 4 “withholding of good-time credits.” Id. at 22. 5 Plaintiff has not paid the filing fee required by 28 U.S.C. § 1914(a), but instead 6 filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a), 7 (ECF No. 2), followed by exhibits in support of his Complaint (ECF No. 5), and a Motion 8 to Appoint Counsel (ECF No. 7). 9 I. Motion to Proceed IFP 10 All parties instituting any civil action, suit or proceeding in a district court of the 11 United States, except an application for writ of habeas corpus, must pay a filing fee of 12 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 13 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 14 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 15 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner granted leave to proceed 16 IFP remains obligated to pay the entire fee in “increments” or “installments,” Bruce v. 17 Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 18 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 19 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 20 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 21 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 22 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 23 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 24 trust account statement, the Court assesses an initial payment of 20% of (a) the average 25

26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 27 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. June 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to proceed 28 1 monthly deposits in the account for the past six months, or (b) the average monthly 2 balance in the account for the past six months, whichever is greater, unless the prisoner 3 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having 4 custody of the prisoner then collects subsequent payments, assessed at 20% of the 5 preceding month’s income, in any month in which his account exceeds $10, and forwards 6 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 7 Bruce, 136 S. Ct. at 629. 8 In support of his IFP Motion, Plaintiff has submitted a copy of his CDCR Inmate 9 Statement Report. See ECF No. 2 at 5-7; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; 10 Andrews, 398 F.3d at 1119. This statement shows Plaintiff carried an average monthly 11 balance of $39.81 and had $49.87 in average monthly deposits credited to his account 12 over the 6-month period immediately preceding the filing of his Complaint. However, 13 Plaintiff had only $.02 to his credit at the time of filing. See ECF No. 2 at 6. 14 Based on this accounting, the Court GRANTS Plaintiff’s Motion to Proceed IFP 15 (ECF No. 2) and assesses no initial partial filing fee pursuant to 28 U.S.C. § 1915(b)(1). 16 See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited 17 from bringing a civil action or appealing a civil action or criminal judgment for the 18 reason that the prisoner has no assets and no means by which to pay the initial partial 19 filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. 20 § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based 21 solely on a “failure to pay ... due to the lack of funds available to him when payment is 22 ordered.”). The Court will direct the remaining balance of the $350 total fee owed in this 23 case be collected by the agency having custody of the prisoner and forwarded to the 24 Clerk of the Court pursuant to 28 U.S.C. § 1915(b)(2). 25 II. Motion to Appoint Counsel 26 Plaintiff also seeks the appointment of counsel pursuant to 28 U.S.C. § 1915 based 27 on the purported complexity of his claims, his indigence, incarceration, bipolar disorder, 28 hyperthyroidism, limited ability to investigate, and anticipated need to propound 1 discovery and solicit expert testimony. See ECF No. 7 at 1-2. 2 However, there is no constitutional right to counsel in a civil case. Lassiter v. Dept. 3 of Social Servs., 452 U.S. 18, 25 (1981); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 4 2009). And while 28 U.S.C. § 1915(e)(1) grants the district court limited discretion to 5 “request” that an attorney represent an indigent civil litigant, Agyeman v. Corr. Corp. of 6 America, 390 F.3d 1101, 1103 (9th Cir. 2004), this discretion may be exercised only 7 under “exceptional circumstances.” Id.; see also Terrell v. Brewer, 935 F.2d 1015, 1017 8 (9th Cir. 1991). A finding of exceptional circumstances requires the Court “to consider 9 whether there is a ‘likelihood of success on the merits’ and whether ‘the prisoner is 10 unable to articulate his claims in light of the complexity of the legal issues involved.’” 11 Harrington v. Scribner, 785 F.3d 1299, 1309 (9th Cir. 2015) (quoting Palmer, 560 F.3d 12 at 970). 13 The Court agrees that pro se litigants may be better served with the assistance of 14 counsel—but that is not the test. See Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 15 1997) (affirming denial of counsel based on claims that pro se plaintiff “may well have 16 fared better-particularly in the realms of discovery and the securing of expert 17 testimony.”), withdrawn in part on reh’g en banc and overruled on other grounds, 154 18 F.3d 952 (9th Cir. 1998). “Concerns regarding investigation and discovery are … not 19 exceptional factors,” and while a pro se litigant “may not have vast resources or legal 20 training,” these are simply among the commonly shared “types of difficulties encountered 21 by many pro litigants.” Wells v. Washington State Dep’t of Corr., No. C13-234 22 RJB/KLS, 2013 WL 4009076, at *1 (W.D. Wash. Aug. 5, 2013). 23 As currently pleaded, nothing in Plaintiff’s Complaint suggests he is incapable of 24 articulating the factual basis for his retaliation and excessive force claims, which are 25 typical conditions of confinement claims and “relatively straightforward.” Harrington, 26 785 F.3d at 1309. In fact, the Court finds, based on its initial screening of Plaintiff’s 27 Complaint under the standards of review discussed below, that he has pleaded sufficient 28 factual content to state a plausible First and Eighth Amendment claims for relief—at least 1 with respect to Defendants Hultz, Strong, Jaramillo, and Pamplin. See Meeks, 2017 WL 2 476425 at *3 (denying ADA inmate appointment of counsel where inmate “successfully 3 survived screening,” and had submitted motions “drafted with clarity and [asserting] 4 proper arguments.”); Garcia v. Blahnik, Civil Case No. 3:14-cv-00875-LAB-BGS, 2016 5 WL 4269561, at *3 (S.D. Cal. Aug. 15, 2016) (finding no “exceptional circumstances 6 warranting a judicial request for a voluntary legal counsel” where Plaintiff’s psychiatric 7 disorder and limited access to the law library did not “prevent[] him from filing a well- 8 articulated complaint and other motions with the Court.”). 9 In addition, while Plaintiff may have sufficiently pleaded retaliation and excessive 10 force claims against Defendants Hultz, Strong, Jaramillo, and Pamplin at this preliminary 11 stage of the proceedings, he has yet to demonstrate and it is too soon to tell whether there 12 is a likelihood he will succeed on the merits. Harrington, 785 F.3d at 1309; Cano v. 13 Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014) (affirming denial of counsel where prisoner 14 could articulate his claims in light of the complexity of the issues involved, but did not 15 show likelihood of succeed on the merits); see also Dickey v. Strayhorn, Civil Case No. 16 3:17-cv-00546-JLS-JLB, 2017 WL 3118797, at *1 (S.D. Cal. July 21, 2017), 17 reconsideration denied, Civil Case No. 3:17-cv-00546-JLS-JLB, 2017 WL 4271975 at *1 18 (S.D. Cal. Sept. 26, 2017) (“To demonstrate that he has a likelihood of success at trial, 19 Plaintiff must do more than merely allege that one of his constitutional rights was 20 violated. He must provide evidence to the effect that he has a likelihood of success on the 21 merits of his allegations.”); Torbert v. Gore, Civil Case No. 3:14-cv-02991-BEN-NLS, 22 2016 WL 1399230, at *1 (S.D. Cal. Apr. 8, 2016) (“A plaintiff that provides no evidence 23 of his likelihood of success at trial fails to satisfy the first factor of the [exceptional 24 circumstances] test.”) 25 Therefore, the Court finds no “exceptional circumstances” exist at this preliminary 26 stage of the case and DENIES Plaintiff’s Motion to Appoint Counsel (ECF No. 7) 27 without prejudice on that basis. 28 /// 1 III. Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b) 2 A. Standard of Review 3 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 4 answer screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these 5 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 6 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 7 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 8 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 9 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 10 the targets of frivolous or malicious suits need not bear the expense of responding.’” 11 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation omitted). 12 “The standard for determining whether a plaintiff has failed to state a claim upon 13 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 14 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 15 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 16 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 17 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 18 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 19 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 20 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 21 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 22 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 23 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 24 relief [is] . . . a context-specific task that requires the reviewing court to draw on its 25 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 26 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 27 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 28 (9th Cir. 2009). 1 Finally, while a plaintiff’s factual allegations are taken as true, courts “are not 2 required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 3 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Indeed, while 4 courts “have an obligation where the petitioner is pro se, particularly in civil rights cases, 5 to construe the pleadings liberally and to afford the petitioner the benefit of any doubt,” 6 Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 7 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply essential elements of claims that 8 were not initially pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 9 266, 268 (9th Cir. 1982). Even before Iqbal, “[v]ague and conclusory allegations of 10 official participation in civil rights violations” were not “sufficient to withstand a motion 11 to dismiss.” Id. 12 B. Plaintiff’s Allegations 13 Plaintiff lists 22 separate Defendants and identifies his constitutional right to free 14 speech, access to the courts, and petition for redress (Count 1), to be free from cruel and 15 unusual punishment (Count 2), and his right to due process (Count 3), as the bases for 16 various claims which are alleged to have arisen at two different prisons over the course of 17 two years. See Compl. at 1-7, 8, 19, 20. Plaintiff does not clearly specify which 18 Defendant is being sued for which wrong. Instead, he simply identifies each Defendant 19 by his or her job title, id. at 2-7, sets out a chronology of “background” facts under Count 20 1, id. at 8-18, and realleges and incorporates those same facts by reference with respect to 21 Counts 2 and 3. Id. at 19, 20. Plaintiff also refers to several hundred pages of exhibits, 22 which he has filed separately in support of his claims. See ECF No. 5.2 23 /// 24 25 2 While “it is not the Court’s duty,” when screening a complaint pursuant to 28 U.S.C. § 1915(e) and 26 § 1915A “to wade through exhibits to determine whether cognizable claims have been stated,” Woodrow v. Cty. of Merced, No. 1:13‒cv‒01505‒AWI, 2015 WL 164427, at *4 (E.D. Cal. Jan 13, 2015), the Court 27 will consider specific exhibits when Plaintiff identifies them as relevant to his claims. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (reaffirming liberal construction of pro se pleadings after Iqbal). 28 1 1. RJD Defendants & Claims 2 On July 12, 2017, while he was incarcerated at RJD and assigned to the Sensitive 3 Needs Yard due to his lack of criminal sophistication and bipolar disorder, Plaintiff 4 complained to an unidentified staff member about “partial, unfair and discriminatory 5 practices” he observed in the canteen. See Compl. at 8. Correctional Officer M. Hultz 6 responded and “incite[d] the crowd … by saying that no person w[ould] be able to shop 7 because of Plaintiff.” Id. When Plaintiff sat and started taking notes at a nearby table, 8 Hultz “retrieve[d] Plaintiff’s identification card,” threw it into the dirt “in open display of 9 contempt,” “continue[d] his threat[s] … by gesturing at Plaintiff in a manner likely to 10 incite or promote violence,” and “glared at [him] while spitting sunflower seeds.” Id. 11 When Plaintiff complained to Hultz’s supervisor, Sgt. Marientes, Marientes “declare[d] 12 his indifference,” by giving Hultz a “high five.” Id. at 9. 13 Plaintiff then asked Officer T. Yap to sign two CDCR Form 22s addressed to Cpt. 14 E. Garza to report Hultz and Marientes’ misconduct.3 Yap signed the CDCR Form 22 15 regarding Hultz and submitted it using institutional mail, but he refused to sign the Form 16 22 regarding Marientes. Plaintiff alleges Yap did so because he feared retaliation, and 17 advised him to ask a “cool sergeant” to sign the Form 22 instead. Id. at 9. 18 19 20 3 Officer Yap is not named as a Defendant. See Compl. at 1-7. Title 15 of the California Code of 21 Regulations provide that “[i]nmates and parolees may request interviews with staff and/or request items and services via a written request process,” pursuant to a “CDCR Form 22 (10/09), Inmate/Parolee 22 Request for Interview, Item or Service.” 15 Cal. Code Regs. § 3086(a), (c). “These forms are to ‘be made readily available’ throughout the prison.” Green v. Dir./Sec’y, California Dep’t of Corr. & Rehab., No. 23 3:14-CV-00965-LAB-BGS, 2016 WL 3647182, at *9 (S.D. Cal. June 10, 2016), report and recommendation adopted, No. 3:14-CV-00965-LAB-BGS, 2016 WL 3551974 (S.D. Cal. June 30, 2016) 24 (citing § 3086(c)). “A Form 22 is intended to facilitate the ‘timely resolution of routine matters through 25 an effective and non-conflictive communication process,’ pursuant to which ‘Department staff shall attempt to resolve inmate and parolee issues expeditiously.’” Id. (citing § 3086(a)). Plaintiff includes the 26 CDCR Form 22 he submitted to Yap on July 12, 2017 as part of the CDCR 602 Inmate/Parolee Appeal Log No. RJD-17-05116 records he filed at Exhibit 13. See ECF No. 5 at 98. Captain E. Garza responded 27 to this CDCR Form 22 on July 17, 2017,, indicating Plaintiff would be interviewed by a staff member in ASU due to his “involve[ment] in an incident with Officer Hultz.” Id. 28 1 Two days later, on July 14, 2017, Plaintiff claims Officer Crespo pointed him out 2 to Hultz in the breakfast dining hall. Hultz asked Plaintiff, “Where’s my write up? I’m 3 waiting to sign it.” Id. After Plaintiff handed his Form 22 to Hultz, he claims Hultz 4 “became angry,” put the Form 22 in his pocket, and told Plaintiff he had 72 hours to 5 review it. Id. When Plaintiff asked Crespo to confirm that Hultz was required to sign a 6 copy “immediately for [his] records,” Crespo directed Plaintiff to “eat first,” and that 7 she’d “get it back for [him].” Id. at 10. Plaintiff claims he then observed both Crespo and 8 Hultz reading the Form 22 before Hultz again returned it to his pocket. When Plaintiff 9 again requested Hultz return the Form 22, so “someone else [could] sign it,” Hultz 10 refused.4 Id. 11 Plaintiff then claims he “calmly remove[d] [a] pen and index card in order to note 12 another adverse interaction,” when Hultz “violently hit [his] hands” to prevent him from 13 writing. Id. Plaintiff claims he asked Crespo for her “legally obligated assistance,” but 14 Crespo “did not intervene.” Id. 15 As Plaintiff bent down to retrieve his card and pen, Hultz grabbed him by the back 16 of the shirt and squeezed his throat with his right hand, “obstructing [his] breathing.” Id. 17 Plaintiff claims he was “in fear for his life, [but] recognize[d] Hultz w[ould] attempt to 18 justify the unauthorized use of deadly force if [he] attempt[ed] to move Hultz’s hand.” Id. 19 “Hultz then violently slam[med] Plaintiff into a concrete wall,” which caused a “2ʺ 20 laceration to [his] right elbow.” Id. Plaintiff further contends that as “he intentionally 21 prevent[ed] Plaintiff from complying, Hultz, for the first time, ordered [him] to cuff up,” 22 then “maliciously body slam[med] him to the ground.” Id. Plaintiff claims he was then 23 “beaten by Officer B. Strong [] and Officer B. Jaramillo.” Id. at 11. Jaramillo “repeatedly 24 25 4 In a CDCR Form 22 dated July 12, 2017, and captioned by Plaintiff as “employee conduct,” he reported 26 that Sgt. Marientes was informed of “the misconduct of his officer,” stated he “didn’t care,” directed Plaintiff to “put it in the 602,” and later “congratulat[ed]” him by saying “Good job.” This Form 22 is 27 signed and dated by both Hultz and Capt. Garza on July 14, 2017. See Pl.’s Ex. 13, ECF No. 5 at 99. Garza response informed Plaintiff that “Form 22’s are not meant to be utilized to report staff misconduct,” and 28 1 slam[med] [his] head into the ground” as Plaintiff “lay prone with his hands cuffed 2 behind his back.” Id. Plaintiff claims when he cried out to Officer Joyner5 for help, Hultz 3 “cover[ed] [his] mouth.” Id. 4 During his escort to the gym by Officers Strong and P. Pamplin, Plaintiff claims 5 Pamplin tightened his cuffs “to restrict the flow of blood to [his] arms,” and both officers 6 “interlocked their arms through Plaintiff’s” and “applied pressure” to his shoulder in 7 order to “mak[e] [him] walk.” Id. When Plaintiff asked to walk on his own, he claims 8 Strong threatened to “drop” him and beat him instead. Id. Plaintiff “repeatedly explained” 9 that he had been attacked “without provocation because he submitted staff complaints,” 10 but Pamplin and Strong responded by “slamming [him] into a glass window,” tightening 11 his cuffs, and “throwing [him] into a 2ʹ x 2ʹ single-person cage.” Id. Once inside, Plaintiff 12 asked if his restraints could be removed because his treatment was “unethical and unjust,” 13 but Strong replied, “I can’t hear you Martin Luther King cuz [sic] I’m just a dumb white 14 boy … [W]hat’s justice?” Id. 15 About 45 minutes later, Plaintiff was examined by Licensed Vocation Nurse 16 Letuligasenca,6 who asked Strong to removed Plaintiff’s restraints so that he could 17 administer his anti-depressant medication and document his injuries on a CDCR Form 18 7219.7 Id. at 12. 19 Plaintiff claims that while he remained alone in the gym, Officer Crespo 20 “apologized for her inability to help him,” and provided Plaintiff “insight into the story 21 that Hultz was going to concoct to conceal his unnecessary use of force.” Id. Plaintiff 22 claims he also spoke with the responding supervisor, Sgt. Cottrell, and “unequivocally 23 expressed” that he had been attacked by officers “because he filed a grievance two days 24 25 5 Officer Joyner is not named as a party. 26 6 LVN Letuligesenca is not named as a party. 27 7 See Pl.’s Ex. 6, ECF No. 5 at 13. 28 1 prior.” Id. But Plaintiff claims Cottrell “refused to commence [an] appropriate 2 investigation,” and he was “erroneously charged with battery” and sent to the 3 Administrative Segregation Unit (ASU).8 Id. 4 On or around July 16, 2017, while he was in ASU, Plaintiff claims an unidentified 5 sergeant responded to the “initial misconduct complaint,” but refused to take Plaintiff’s 6 statement. Id. at 12-13. On or around July 18, 2017, Plaintiff claims Cpt. Garza informed 7 him of a pending Classification Committee Review hearing.9 Id. at 13. Plaintiff claims he 8 gave a statement that Garza declined to document and requested a polygraph exam. Id. 9 On July 20, 2017, Plaintiff claims to have appeared before the Committee, and to 10 have informed an unidentified Captain of his willingness to undergo a polygraph 11 examination. The Captain ordered Lt. Luna to “review Plaintiff’s statements,” and Luna 12 then ordered an unidentified Psychiatric Technician (“PT”) to “conduct an injury report.” 13 Id. During that exam, Plaintiff contends Luna “explicitly ordered” the PT to document his 14 cuff burns as “old scars.” Id. 15 Plaintiff was then taken to an office by Luna and Sgt. Fink. There, he claims Luna 16 told him his injuries would be recorded, but threatened that if he “tr[ied] to say 17 any[thing]” that contradicted the injury report, he would “stop this shit.” Id. Specifically, 18 Plaintiff claims Luna “continued to angrily insist and intimidate [him],” mischaracterized 19 his account of the use of force, ordered Fink to stop recording and told him: “You’re 20

21 22 8 CDCR Rules Violation Report (“RVR”) Log No. 2992331, dated July 14, 2017, and charging Plaintiff with battery on a peace officer (Hultz) in violation of Cal. Code Regs., tit. 15 § 3005(d)(1), an RVR 23 Supplemental Report, and Plaintiff’s Aug. 13, 2107 Disciplinary Hearing Results are filed together as Plaintiff’s Ex. 10. See ECF No. 5 at 26-41. Hultz is identified as the Reporting Employee, Sgt. K. Cottrell 24 is identified as the Reviewing Supervisor, and Correctional Officer E. Garza is identified as the official 25 who classified Plaintiff’s offense level as serious. Id. at 27-28.

26 9 “Any serious disciplinary action requiring reconsideration of an inmate’s program, work group, or housing assignment, shall be referred to the next reasonably scheduled classification committee for 27 review.” Cal. Code Regs., tit. 15 § 3315(g); Armenta v. Paramo, No. 3:16-CV-02931-BTM-KSC, 2018 WL 4612662, at *3 n.6 (S.D. Cal. Sept. 25, 2018). 28 1 done. You said you got your injuries because Hultz threw your ID in the dirt.” Id. at 14. 2 On July 24, 2017, Plaintiff claims to have filed a “Form 602” and to have 3 “personally” handed it to Officer C. Aliva,10 who was “acting as [his] Investigative 4 Employee (IE)”11 Id. Plaintiff claims Aliva’s “job [was] to gather information for the 5 Senior Hearing Officer (SHO)” who would preside over his disciplinary hearing.12 Id. 6 Plaintiff claims Aliva “specifically refused to call Officer Crespo as a witness.” Id.13 7 On or around July 31, 2017, Plaintiff was transferred from RJD to LAC. Id. at 15. 8 On August 13, 2017, Lt. B. Legier found him guilty of battery on a peace officer (Hultz) 9 in violation of Cal. Code Regs., tit. 15 § 3005(d)(1) as charged in RVR Log No. 2992331, 10 and based on the “quantity of officer statements against him.” Id. Plaintiff claims Legier 11 “refuse[d] to document [his] statement” during the August 13, 2017 hearing, and failed to 12 acknowledge that “cover ups … happen in the year 2017.” Id.14 Plaintiff also claims he 13 14 15 10 Plaintiff identifies this Defendant as C. Aliva, but the Court notes his exhibits identify Correctional Officer C. Avila as the IE. See Pl.’s Ex. 10, ECF No. 5 at 32. 16

17 11 Plaintiff identifies “Exhibit 7” as his CDCR Form 602, but that exhibit is not a CDCR 602 Inmate/Appeal Form. See ECF No. 5 at 15. Instead, the document Plaintiff refers to is a single handwritten 18 page he entitled “Employee Misconduct” in which recounts his July 12 and July 14 encounters with Officers Hultz, Crespo, Pamplin, and Strong. Id. 19 12 Plaintiff does not specifically identify Lt. B. Legier as the SHO in the body of his Complaint, but he 20 does claim Legier reviewed the evidence and found him guilty of battery on a peace officer (Hultz) with 21 respect to RVR Log. No. 2992331. See Compl. at 15; Pl.’s Ex. 10, ECF No. 5 at 37. Plaintiff’s Exhibit 10 also identifies Legier as the August 13, 2017 “Hearing Official.” Id. at 40. 22 13 Avila’s RVR Supplemental Report dated August 8, 2017 confirms Avila conducted an IE Interview 23 with Plaintiff in the ASU on July 24, 2017. See Pl.’s Ex. 10, ECF No. 5 at 31. Avila’s Report indicates Plaintiff requested that Avila pose questions to Sgt. Fink and an inmate named Harvey; but also indicates 24 Plaintiff did not request any staff or inmate witnesses, reporting employee, or investigative employees 25 appear as witnesses. Id. at 31-32, 37.

26 14 However, the August 13, 2017 RVR Log No. 2992331 findings Plaintiff submitted as Exhibit 10 show that when he pleaded not guilty he entered a statement “that he did not Battery [sic] the officer and that 27 this all took place because of retaliation from a Staff Complaint he filed (2) days before this incident on July 12, 2017” against Officer M. Hultz. See Pl.’s Ex. 10, ECF No. 5 at 37. 28 1 “was sentenced to six months in isolation,” and had “the same time added to his overall 2 sentence” due to Legier’s guilt determination. See Compl. at 15. However, RVR Log No. 3 2992331’s Disposition Findings, which “affirm[ed] the hearing results,” and were 4 reviewed and entered by Chief Disciplinary Officer (“CDO”) T. Lewandowski on 5 September 7, 2017, indicate Plaintiff was referred to a Classification Committee for a 6 SHU Term Assessment, advised of a 150-day non-restorable credit forfeiture, and 7 assessed a 90-day loss of Privilege Group C, canteen, phone, day room, and package 8 privileges. See Pl.’s Ex. 10, ECF No. 5 at 39-41.15 Lewandowski is not named as a 9 Defendant. See Compl. at 1-7. 10 On August 17, 2017, Plaintiff claims to have been interviewed via videotape while 11 in the ASU at LAC by Lt. B. Perez and Sgt. T. Smith “at the request of RJD Lt. L. Ortiz” 12 in order to enter “supplemental evidence” into the record “for RVR Log. No. #299331.” 13 Id. at 15-16; see also Pl.’s Ex. 11, ECF No. 5 at 43.16 14 Between August and November 2017, Plaintiff submitted several letters to the 15 CDCR’s Office of Internal Affairs (“OIA”), Division of Adult Institutions, and Office of 16 Correctional Safety reporting Hultz and Marientes’s alleged misconduct, complaining he 17 had been falsely charged and retaliated against, and demanding a polygraph examination. 18 See Compl. at 16, Pl.’s Ex. 12, ECF No. 5 at 45-49. His exhibits show these letters were 19 routed to RJD’s Warden, Defendant Daniel Paramo, who responded twice on October 23, 20 2017, and again on November 8, 2017. Id. at 46, 48-49. Both times Paramo directed 21 Plaintiff to raise and properly pursue his claims via the CDCR 602 Inmate/Parolee 22 appeals process. Id. at 46, 48-49. Paramo further notified Plaintiff that all reported 23

24 25 15 Plaintiff’s Second Level Disciplinary Appeal Response to CDCR 602 Inmate Parolee Log No. RJD-X- 17-5116, dated November 8, 2017, indicates he was “issued a Final copy of the disciplinary hearing results 26 affirmed by the Chief Disciplinary Officer (CDO) on September 8, 2017. See Pl.’s Ex. 13, ECF No. 5 at 60. 27 16 While RJD Lt. L. Ortiz is named as a Defendant, neither Perez nor Smith are identified as parties. See 28 1 incidents of force were subject to review by an Institutional Executive Review 2 Committee (“IERC”), and that the IERC had reviewed Officer Hultz’s actions and 3 “determined th[e] incident require[d] no further review.” Id. at 48. Plaintiff also claims to 4 have “personally informed” and to have solicited the assistance of former CDCR 5 Secretary Scott Kernan after he saw Kernan’s “interview on 60 Minutes with Oprah 6 Winfrey,” but Kernan “refused to aid[] [him].” See Compl. at 16. 7 2. LAC Defendants & Claims 8 The remainder of Plaintiff’s claims, alleged to have occurred at LAC beginning in 9 late December 2017, and continuing through September 2019, include subsequent acts of 10 retaliation, intimidation, harassment, mail interference, transfer to a “suicide bed” and 11 “false disciplinary write-ups.” These incidents involve LAC officials Puentes, Mebane 12 (also spelled Mayben), Handle, Lumas, and Kashchuck.17 See Compl. at 16-18. 13 C. 42 U.S.C. § 1983 14 Section 1983 is a “vehicle by which plaintiffs can bring federal constitutional and 15 statutory challenges to actions by state and local officials.” Anderson v. Warner, 451 F.3d 16 1063, 1067 (9th Cir. 2006). To state a claim under 42 U.S.C. § 1983, a plaintiff must 17 allege two essential elements: (1) that a right secured by the Constitution or laws of the 18 United States was violated, and (2) that the alleged violation was committed by a person 19 acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 20 789 F.3d 1030, 1035-36 (9th Cir. 2015). 21 /// 22 23 24 17 Of these LAC officials, only Puentes and Mebane are named as Defendants in this case. See Compl. at 25 1-7. Plaintiff does name several other LAC officials—Warden Asuncion, and Correctional Officers Nkoocha and Thompson as parties, see Compl. at 7; but nowhere does he explain what these LAC officials 26 did, or how they injured him. The same is true for RJD Defendants Olivarria and Self, whom Plaintiff simply lists as Defendants and identifies as Appeals Coordinators. Id. at 6. See Iqbal, 556 U.S. at 678 27 (noting that while Rule 8’s pleading standards “do[] not require ‘detailed factual allegations,’ … [they] demand[] more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”) (quoting 28 1 D. Individual Liability 2 As an initial matter, the Court’s finds Plaintiff’s Complaint fails to include 3 sufficient factual content to establish individual liability on the part of the supervisory 4 officials he seeks to sue. For example, Plaintiff names Wardens Paramo and Ascuncion, 5 as well as CDCR Secretary Kernan as parties, identifies them by their job titles, and 6 contends they are “legally responsible” either for the “welfare of all the inmates” in RJD 7 and LAC, and for “overall Department operations.” See Compl. at 3. With respect to 8 Warden Paramo and Secretary Kernan, Plaintiff further alleges only that they were aware 9 of the July 14, 2017 incident and the disciplinary proceedings that followed. See Compl. 10 at 16. With respect to LAC Warden Asuncion, however, Plaintiff alleges no knowledge 11 or involvement whatsoever. “[A] defendant may not be held liable under § 1983 merely 12 because he had certain job responsibilities.” Hernandez v. Aranas, No. 2:18-CV-00102- 13 JAD-BNW, 2020 WL 569347, at *4 (D. Nev. Feb. 4, 2020) (citing Starr v. Baca, 652 14 F.3d 1202, 1207 (9th Cir. 2011)). 15 Without “further factual enhancement” to show how, or to what extent, Defendants 16 Paramo, Kernan, or Asuncion may be held personally liable for any constitutional injury, 17 the Court finds Plaintiff’s claims against them must necessarily rest on a theory of 18 respondeat superior. See Iqbal, 556 U.S. at 676-77. But “[v]icarious liability is 19 inapplicable to ... § 1983 suits, [and] a plaintiff must plead that each Government-official 20 defendant, through [his] own individual actions, has violated the Constitution,” in order 21 to plead a plausible claim for relief. Id. at 676; see also Crowley v. Bannister, 734 F.3d 22 967, 977 (9th Cir. 2013) (supervisor may be held liable under Section 1983 only if there 23 is “a sufficient causal connection between the supervisor’s wrongful conduct and the 24 constitutional violation”) (citations and internal quotation marks omitted); Fayle v. 25 Stapley, 607 F.2d 858, 862 (9th Cir. 1979) (when a named defendant holds a 26 supervisorial position, the causal link between the defendant and the claimed 27 constitutional violation must be specifically alleged); Victoria v. City of San Diego, 326 28 F. Supp. 3d 1003, 1013 (S.D. Cal. 2018) (“Liability under § 1983 arises only upon a 1 showing of personal participation by the defendant.”); Jones v. Comm’ty Redev. Agency 2 of City of Los Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (even pro se plaintiff must 3 “allege with at least some degree of particularity overt acts which defendants engaged in” 4 in order to state a claim). 5 For these reasons, the Court finds Plaintiff has failed to state a plausible claim for 6 relief against Defendants Paramo, Kernan, and Asuncion pursuant to 28 U.S.C. 7 § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b); Lopez, 203 F.3d at 1126-27; Wilhelm, 680 8 F.3d at 1121. 9 E. RJD Due Process Claims (“Count 3”) 10 1. Disciplinary Investigation and Proceedings 11 In Count 3, Plaintiff asserts a violation of his Fourteenth Amendment right to “due 12 process,” see Compl. at 20, which the Court will assume is alleged with respect to the 13 disciplinary investigation undertaken with respect to RVR Log. No. 2992331, dated July 14 14, 2017, the various CDCR Form 22s and CDCR 602 Inmate Appeals and “employee 15 misconduct” claims Plaintiff submitted regarding the July 12 through July 14, 2017 16 incidents, id. at 9-10, 14, and his August 13, 2017 disciplinary conviction for battery on a 17 peace officer in violation of Cal. Code Regs., tit. 15 § 3005(d). Id. at 15-16; see also Pl.’s 18 Ex. 10, ECF No. 5 at 27-41. 19 The Fourteenth Amendment provides that “[n]o state shall ... deprive any person of 20 life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. “The 21 requirements of procedural due process apply only to the deprivation of interests 22 encompassed by the Fourteenth Amendment’s protection of liberty and property.” Bd. of 23 Regents v. Roth, 408 U.S. 564, 569 (1972). “To state a procedural due process claim, [a 24 plaintiff] must allege ‘(1) a liberty or property interest protected by the Constitution; (2) a 25 deprivation of the interest by the government; [and] (3) lack of process.’” Wright v. 26 Riveland, 219 F.3d 905, 913 (9th Cir. 2000) (quoting Portman v. Cnty. of Santa Clara, 27 995 F.2d 898, 904 (9th Cir. 1993)). 28 /// 1 A prisoner is entitled to certain due process protections when he is charged with a 2 disciplinary violation. Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003) (citing 3 Wolff v. McDonnell, 418 U.S. 539, 564-571 (1974)). “Such protections include the rights 4 to call witnesses, to present documentary evidence and to have a written statement by the 5 fact-finder as to the evidence relied upon and the reasons for the disciplinary action 6 taken.” Id. These procedural protections, however, “adhere only when the disciplinary 7 action implicates a protected liberty interest in some ‘unexpected matter’ or imposes an 8 ‘atypical and significant hardship on the inmate in relation to the ordinary incidents of 9 prison life.’” Id. (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)); Ramirez v. 10 Galaza, 334 F.3d 850, 860 (9th Cir. 2003). 11 Although the level of the hardship must be determined on a case-by-case basis, and 12 “[i]n Sandin’s wake the Courts of Appeals have not reached consistent conclusions for 13 identifying the baseline from which to measure what is atypical and significant in any 14 particular prison system,” Wilkinson v. Austin, 545 U.S. 209, 223 (2005), courts in the 15 Ninth Circuit look to: 16 1) whether the challenged condition ‘mirrored those conditions imposed upon inmates in administrative segregation and protective custody,’ and thus 17 comported with the prison’s discretionary authority; 2) the duration of the 18 condition, and the degree of restraint imposed; and 3) whether the state’s action will invariably affect the duration of the prisoner’s sentence. 19 20 Ramirez, 334 F.3d at 861 (quoting Sandin, 515 U.S. at 486-87); see also Chappell v. 21 Mandeville, 706 F.3d 1052, 1064-65 (9th Cir. 2013). Only if the prisoner alleges facts 22 sufficient to show a protected liberty interest must courts next consider “whether the 23 procedures used to deprive that liberty satisfied Due Process.” Ramirez, 334 F.3d at 860. 24 Plaintiff’s due process claims with respect to the investigation and procedures 25 employed as the result of RVR Log. No. 2992331, as best the Court can tell, involve 26 Defendants Cottrell, Garza, Luna, Fink, Aliva, Legier, and Ortiz. Specifically, Plaintiff 27 alleges Sgt. Cottrell refused to initiate an “appropriate investigation” into the July 14, 28 2017 incident, and “erroneously” charged him with battery on Hultz. See Compl. at 12. 1 Plaintiff claims Cpt. Garza then “declined to document” a statement Plaintiff made to him 2 on July 16, 2017, id. at 12‒13, and Lt. Luna and Sgt. Fink allegedly recorded his injuries 3 and claims on July 20, 2017, but “intimidate[d]” him while doing so, and 4 “mischaracterized” his version of the events when reporting them. Id. at 14. Officer Aliva 5 is alleged to have been assigned to gather information as Plaintiff’s IE, but “refused to 6 call Officer Crespo as a witness.” Id. Lt. Legier is similarly alleged to have refused to 7 document a statement Plaintiff claims to have made during the August 13, 2017 8 disciplinary hearing, to have rejected his claims of a “cover up,” and to have wrongly 9 concluded Plaintiff was guilty based only on “the quantity of officer statements against 10 him.” Id. at 14‒15. Finally, Plaintiff implicates Lt. Ortiz, but alleges only that he 11 requested Plaintiff be interviewed at LAC via videotape in order to provide 12 “supplemental evidence” on August 17, 2017.18 Id. at 15‒16. But none of these acts or 13 omissions, or reasonable inferences that may be drawn from them, are sufficient to 14 support a viable due process claim. Iqbal, 556 U.S. at 678. 15 First, to the extent Plaintiff suggests RVR Log No. 2992331 was based on lies 16 “concoct[ed] to conceal” the use of “unnecessary force” and issued simply to “cover up” 17 wrongdoing, see Compl. at 12, 14‒15, “[t]he issuance of a false RVR, alone, does not 18 state a claim under section 1983.” Murschel v. Paramo, 2018 WL 539159, at *5 (S.D. 19 Cal. 2018) (citing Dawson v. Beard, 2016 WL 1137029, at *5-6 (E.D. Cal. 2016)). 20 Instead, claims of arbitrary action by prison officials must grounded in “‘the procedural 21 due process requirements as set forth in Wolff v. McDonnell.’” Id. (citing Ellis v. Foulk, 22 2014 WL 4676530, at *2 (E.D. Cal. 2014) (quoting Hanrahan v. Lane, 747 F.2d 1137, 23 1140 (7th Cir. 1984))). “[T]here is no due process right to be free from false disciplinary 24

25 26 18 Plaintiff also claims Ortiz “later dispositioned [his] appeal [Exhibit 11] in violation of CDCR rules.” Compl. at 16. But Exhibit 11 is not a CDCR 602 Inmate/Parolee Appeal Form. Instead it appears to be the 27 CDCR Form 22 Plaintiff submitted to LAC’s Sgt. Smith on or about December 3, 2017, and requesting confirmation that his August 17, 2017 video‒recorded interview “as ‘supplemental’ for RVR #2992331” 28 1 charges,” Solomon v. Meyer, 2014 WL 294576, at *2 (N.D. Cal. 2014), because “[t]he 2 Constitution demands due process, not error-free decision-making.” Chavira v. Rankin, 3 2012 WL 5914913, at *1 (N.D. Cal. 2012); see also Johnson v. Felker, 2013 WL 4 6243280, at *6 (E.D. Cal. 2013) (“Prisoners have no constitutionally guaranteed right to 5 be free from false accusations of misconduct, so the mere falsification of a [rules 6 violation] report does not give rise to a claim under section 1983.”) (citing Sprouse v. 7 Babcock, 870 F.2d 450, 452 (8th Cir. 1989) and Freeman v. Rideout, 808 F.2d 949, 951- 8 53 (2d Cir. 1986)). 9 Second, Plaintiff’s due process claims require sua sponte dismissal pursuant to 28 10 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1) because he fails to allege facts 11 sufficient to show that the deprivations he suffered as a result of his disciplinary 12 conviction, i.e., lost custody credit, a referral to Classification Committee, and the loss of 13 90 days of canteen, phone, dayroom, and package privileges, see Pl.’s Ex. 10, ECF No. 5 14 at 39‒41, imposed the type of “atypical and significant hardships” required by Sandin to 15 invoke any liberty interest entitled to Wolff’s procedural protections. 16 Classification at a higher custody level, for example, does not by itself place an 17 “atypical or significant hardship” on an inmate sufficient to give rise to a protected liberty 18 interest. See Sandin, 515 U.S. at 486 (placing an inmate in administrative segregation for 19 thirty days “did not present the type of atypical, significant deprivation in which a state 20 might conceivably create a liberty interest.”); Myron v. Terhune, 476 F.3d 716, 718 (9th 21 Cir. 2007) (finding no “atypical and significant deprivation” where prisoner failed to 22 allege conditions at level IV prison differed significantly from those at a level III prison); 23 Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976) (inmates do not have a liberty interest in 24 their classification status); Rizzo v. Dawson, 778 F.2d 527 (9th Cir. 1985) (prison 25 authorities may change a prisoner’s “place of confinement even though the degree of 26 confinement may be different and prison life may be more disagreeable in one institution 27 than in another” without violating due process). 28 /// 1 The other lost privileges Plaintiff cites as a result of his disciplinary conviction, 2 including 90-day placement in “Privilege Group C” and attendant limitations on his 3 canteen, phone, day room, and package privileges, see Compl. at 15, Pl.’s Ex. 10, ECF 4 No. 5 at 39‒41, also do not constitute “atypical and significant” hardships. See Sandin, 5 515 U.S. at 484; Cal. Code Regs., tit. 15 § 3044(f)(2) (describing “Privilege Group C” 6 “privileges and non-privileges”); see also Sanchez v. Miller, 2016 WL 536890, at *5 7 (S.D. Cal. 2016) (“C-status deprivations were limited in duration and type, and these 8 limited deprivations do not constitute a hardship that is atypical and significant ‘in 9 relation to the ordinary incidents of prison life.’”), report and recommendation adopted, 10 2016 WL 524438 (S.D. Cal. 2016); Randle v. Melendrez, 2017 WL 1197864, at *4 (C.D. 11 Cal. 2017) (finding “four months in administrative segregation as a result of the false 12 RVR,” during which plaintiff was deprived of contact visits, “packages, canteen, 13 unrestricted yard, phone calls and personal property” insufficient to implicate a protected 14 liberty interest under Sandin), report and recommendation adopted, 2017 WL 1199719 15 (C.D. Cal. 2017); Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987) (“[A] 16 prisoner has no constitutional right to a particular classification status”); Wyatt v. 17 Swearingen, 2010 WL 135322, at *8-9 (N.D. Cal. 2010) (no liberty interest in prisoner’s 18 year-long C-status placement); Washington v. Cal. Dep’t of Corrs. & Rehab., 2010 WL 19 729935, at *1 (E.D. Cal. 2010) (no liberty interest in delayed release from C-status); see 20 also Steffey v. Orman, 461 F.3d 1218 (10th Cir. 2006) (restriction on inmates’ ability to 21 receive money from outside sources was not an “atypical or significant hardship” under 22 Sandin). 23 For these reasons, the Court finds Plaintiff has failed to state a plausible due 24 process claim as to any Defendant with respect to the issuance of RVR Log No. 2992331, 25 the investigation and hearing which followed, or his August 13, 2017 disciplinary 26 conviction and sentence for battery on a peace officer in violation of Cal. Code Regs., tit. 27 15 § 3005(d)(1). See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1); Watison, 668 F.3d at 28 1112; Wilhelm, 680 F.3d at 1121. 1 2. Heck Bar 2 Even if Plaintiff could allege facts sufficient to plausibly show Defendants Cottrell, 3 Garza, Luna, Fink, Aliva, Legier, or Ortiz violated his due process rights with respect to 4 his RVR and disciplinary conviction, his claims as currently alleged present yet another 5 procedural hurdle. 6 “Federal law opens two main avenues to relief on complaints related to 7 imprisonment: a petition for writ of habeas corpus, 28 U.S.C. § 2254, and a complaint 8 under ... 42 U.S.C. § 1983.” Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam). 9 “Challenges to the validity of any confinement or to particulars affecting its duration are 10 the province of habeas corpus; requests for relief turning on circumstances of 11 confinement may be presented in a § 1983 action.” Id. (internal citation omitted). A 12 prisoner’s claims are within the core of habeas corpus if they challenge the fact or 13 duration of his conviction or sentence. Nettles v. Grounds, 830 F.3d 922, 934 (9th Cir. 14 2016) (en banc), cert. denied, 137 S. Ct. 645 (2017); Ramirez v. Galaza, 334 F.3d 850, 15 858 (9th Cir. 2003). 16 In Heck v. Humphrey, the United States Supreme Court held that a section 1983 17 claim cannot proceed when “a judgment in favor of the plaintiff would necessarily imply 18 the invalidity of his conviction or sentence.” Heck, 512 U.S. at 486-87. Accordingly, “a 19 state prisoner’s [section] 1983 action is barred (absent prior invalidation)—no matter the 20 relief sought (damages or equitable relief), no matter the target of the prisoner’s suit 21 (state conduct leading to conviction or internal prison proceedings)—if success in that 22 action would necessarily demonstrate the invalidity of confinement or its duration.” 23 Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005). Heck requires the plaintiff in a § 1983 24 action “first … to prove that his conviction had been invalidated in some way.” 25 McDonough v. Smith, 139 S. Ct. 2149, 2157 (2019) (citing Heck, 512 U.S. at 486). “This 26 favorable-termination requirement, the Court explained, applies whenever ‘a judgment in 27 favor of the plaintiff would necessarily imply’ that his prior conviction or sentence was 28 invalid.” Id. (quoting Heck, 512 U.S. at 487). 1 Heck’s bar applies in the prison disciplinary context if the “defect complained of 2 by [Plaintiff] would, if established, necessarily imply the invalidity of the deprivation of 3 [his] good-time credits[,]” Edwards v. Balisok, 520 U.S. 641, 646 (1997); Nonnette v. 4 Small, 316 F.3d 872, 875 (9th Cir. 2002), and if the restoration of those credits 5 “necessarily” would “affect the duration of time to be served.” Muhammed, 540 U.S. at 6 754; see also Nettles, 830 F.3d at 929 n.4 (“Heck applies only to administrative 7 determinations that ‘necessarily’ have an effect on ‘the duration of time to be served.’ ” 8 (citations omitted)); Ramirez, 334 F.3d at 856 (“[T]he applicability of [Heck’s] favorable 9 termination rule turns solely on whether a successful § 1983 action would necessarily 10 render invalid a conviction, sentence, or administrative sanction that affected the length 11 of the prisoner’s confinement.”). 12 Here, a judgment in Plaintiff’s favor would necessarily imply the invalidity of his 13 disciplinary conviction and his subsequent credit loss‒‒at least insofar as he contends the 14 charges against him were completely false and concocted to cover up Officer’s Hultz’s 15 initial misconduct. If, as Plaintiff claims, exculpatory evidence gathered “was 16 deliberately suppressed as to ensure it would be unavailable,” and this “preclude[d] 17 Plaintiff from defending himself” and resulted in “time added to his overall sentence,” 18 Compl. at 14‒15, the disciplinary conviction he sustained as a result of RVR Log No. 19 2992331 could not stand. See Edwards, 520 U.S. at 648 (finding prisoner’s claims for 20 declaratory relief and money damages “based on allegations of deceit and bias on the part 21 of the decisionmaker … necessarily imply the invalidity of the punishment imposed, [and 22 are] not cognizable under § 1983.”). “The due process requirements for a prison 23 disciplinary hearing are in many respects less demanding than those for criminal 24 prosecution, but they are not so lax as to let stand the decision of a biased hearing officer 25 who dishonestly suppresses evidence of innocence.” Id. at 647; see also Luster v. 26 Amezcua, 2019 WL 1442992, at *7-8 (E.D. Cal. Apr. 1, 2019) (finding prisoner’s § 1983 27 claims barred by Heck to the extent they were based on allegations that prison officials 28 “made a false report against her.”). 1 Therefore, should Plaintiff chose to amend the due process claims contained in his 2 Complaint, he must not only address the Fourteenth Amendment pleading deficiencies 3 identified above, but also allege that his disciplinary conviction for battery on a peace 4 officer pursuant to RVR Log No. 299331 has already been “reversed on direct appeal, 5 expunged by executive order, declared invalid by a state tribunal authorized to make such 6 determination, or called into question by a federal court’s issuance of a writ of habeas 7 corpus.” Heck, 512 U.S. at 487. 8 3. CDCR Inmate Appeals 9 Plaintiff also names RJD Appeals Coordinators Olivarria and Self as Defendants, 10 see Compl. at 6, and he has submitted hundreds of pages exhibits which include copies 11 of, or reference to, at least 12 separate CDCR 602 Inmate/Parolee Appeals, Staff 12 Complaints, and Health Care Appeals he either filed or attempted to file at RJD, LAC 13 and High Desert State Prison between August 2017 and July 2018. See Pl.’s Exs. 13‒20, 14 ECF No. 5 at 50‒303. But his Complaint offers no “further factual enhancement” to show 15 how, or to what extent Olivarria or Self played any role with respect to a specific appeal 16 or how they may have caused any constitutional injury. See Iqbal, 556 U.S. at 676-77. 17 To the extent Plaintiff may seek to hold Olivarria or Self responsible for 18 improperly processing or denying any particular grievance or appeal, this cannot serve as 19 an independent basis for section 1983 liability. See Ramirez v. Galaza, 334 F.3d 850, 860 20 (9th Cir. 2003) (prisoners do not have a “separate constitutional entitlement to a specific 21 prison grievance procedure.”) (citation omitted); McRoy v. Roe, 509 Fed. Appx. 660, 660 22 (9th Cir. 2013) (affirming dismissal of claims arising from defendants' processing of 23 grievances); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (due process not violated 24 simply because defendant fails properly to process grievances submitted for 25 consideration); see also Todd v. California Department of Corrections and 26 Rehabilitation, 615 Fed. Appx. 415, 415 (9th Cir. 2015) (district court properly dismissed 27 claim based on improper “processing and handling of […] prison grievances,” since 28 prisoners have no “constitutional entitlement to a specific prison grievance procedure”) 1 (citing Ramirez, 334 F.3d at 860) (quotation marks omitted); Shallowhorn v. Molina, 572 2 Fed. Appx. 545, 547 (9th Cir. 2014) (district court properly dismissed section 1983 3 claims against defendants who “were only involved in the appeals process”) (citing 4 Ramirez, 334 F.3d at 860); Daniels v. Aguilera, 2018 WL 558658, at *1 (E.D. Cal. Jan. 5 24, 2018), report and recommendation adopted sub nom. Daniels v. Aguillera, 2018 WL 6 1763311 (E.D. Cal. Apr. 12, 2018) (“Because there is no right to any particular grievance 7 process, it is impossible for due process to have been violated by ignoring or failing to 8 properly process prison grievances.”). Simply “‘[r]uling against a prisoner on an 9 administrative complaint does not cause or contribute to the violation.’” Ellington v. 10 Clark, 2010 WL 3001427, at *2 (E.D. Cal. Jul. 29, 2010) (quoting George v. Smith, 507 11 F.3d 605, 609 (7th Cir. 2007)). 12 For these reasons, Plaintiff also fails to any plausible due process claim against 13 Defendants Olivarria and Self. See Iqbal, 556 U.S. at 678-79 (citations omitted); Valdivia 14 v. Tampkins, 2016 WL 7378887, at *6 (C.D. Cal. Dec. 19, 2016) (sua sponte dismissing 15 claims predicated upon the alleged improper processing of inmate grievances); 28 U.S.C. 16 §§ 1915(e)(2)(b)(ii), 1915A(b)(1); Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004. 17 F. RJD Retaliation & Excessive Force Claims (“Counts 1 & 2”) 18 In Counts 1 and 2, Plaintiff claims a violation of his First Amendment rights to free 19 speech and to petition for redress, and his Eighth Amendment right to be free from cruel 20 and unusual punishment. See Compl. at 8, 18‒19. Specifically, Plaintiff claims that on 21 July 12, 2017, Defendant Hultz “display[ed] contempt” by throwing his ID in the dirt 22 after he raised “concerns” regarding canteen practices and began “taking notes.” Id. at 8. 23 Plaintiff immediately reported Hultz to his direct supervisor, Sgt. Marientes, and 24 complained to Officer Crespo, but to no avail. Id. at 9, 10. 25 Two days later, on July 14, 2017, Plaintiff presented Hultz with a CDCR Form 22 26 which he describes as an “employee misconduct complaint.” Id. at 9. Plaintiff contends 27 Hultz “became angry” after reading the CDCR Form 22, “violently hit [his] hands” in 28 order to “prevent him from writing” and “reporting another adverse action,” and then 1 proceeded to choke, beat, and threaten him with the assistance of Officers Strong, 2 Jaramillo, and Pamplin. Id. at 10‒12. Plaintiff contends Defendants Hultz, Strong, 3 Jaramillo and Pamplin “attacked [him] without provocation because he submitted staff 4 complaints,” id. at 11, and specifically “because he filed grievances two days prior.” Id. 5 at 12. 6 1. Defendants Marientes & Crespo 7 With respect to Sgt. Marientes and Officer Crespo, the Court finds Plaintiff’s 8 allegations fail to allege either a plausible First or Eighth Amendment claim for relief. 9 See 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(b)(1); Lopez, 203 F.3d at 1126-27; 10 Rhodes, 621 F.3d at 1004. 11 “Within the prison context, a viable claim of First Amendment retaliation entails 12 five basic elements: (1) An assertion that a state actor took some adverse action against 13 an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) 14 chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not 15 reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 16 567-68 (9th Cir. 2005). 17 “[A] prison official violates the [Cruel and Unusual Punishments Clause of the] 18 Eighth Amendment when two requirements are met. First, the deprivation alleged must 19 be, objectively, ‘sufficiently serious.’” Farmer v. Brennan, 511 U.S. 825, 834 (1994). 20 Second, Plaintiff must allege the prison official he seeks to hold liable had a 21 “‘sufficiently culpable state of mind’ . . . [T]hat state of mind is one of ‘deliberate 22 indifference’ to inmate health or safety.” Id. A prison official can be held liable only if he 23 “knows of and disregards an excessive risk to inmate health and safety;” . . . he “must 24 both be aware of facts from which the inference could be drawn that a substantial risk of 25 serious harm exists, and he must also draw the inference.” Id. at 837. 26 For claims arising from the use of excessive force, however, the issue is “whether 27 force was applied in a good-faith effort to maintain or restore discipline, or maliciously 28 and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 7 (1992). When 1 alleging a breach of the duty to protect prisoners, a plaintiff must “show that the officials 2 acted with deliberate indifference to the threat of serious harm or injury to an inmate.” 3 Labatad v. Corrections Corp. of America, 714 F.3d 1155, 1160 (9th Cir. 2013). 4 Plaintiff claims only that Sgt. Marientes “declared his indifference” after Plaintiff 5 complained about Hultz on July 12, 2017, by giving him a “high five” on July 12, 2017, 6 see Compl. at 9, and that he observed Officer Crespo read his CDCR Form 22 on July 14, 7 2017, and “not intervene” when Hultz allegedly “hit[] [his] hands … to prevent him from 8 writing.” Id. at 10. But neither of these isolated acts or alleged omissions are sufficient to 9 plausibly suggest either that Marientes or Crespo took any adverse action against Plaintiff 10 because he had engaged in any protected conduct, see Rhodes, 408 F.3d at 567, or were 11 aware of specific facts to suggest Plaintiff faced a “substantial risk of serious harm.” 12 Farmer, 511 U.S. at 837. By merely invoking the legally significant yet conclusory label 13 of “indifference” with respect to both Defendants Marientes and Crespo, Plaintiff has not 14 pleaded enough. See Iqbal, 556 U.S. at 678 (“Threadbare recitals of a cause of action’s 15 elements, supported by mere conclusory statements” do not suffice to state a plausible 16 claim for relief). Instead, Plaintiff must set forth specific facts as to each individual 17 defendant’s causal role in the alleged constitutional deprivation. See Leer v. Murphy, 844 18 F.2d 628, 634 (9th Cir. 1988). “[M]ere presence at the scene of a constitutional violation 19 is insufficient to constitute integral participation.” Adkins v. Corrs. Corp. of America, 681 20 F. App’x 579, 581 (9th Cir. 2017) (citing Jones v. Williams, 297 F.3d 930, 936 (9th Cir. 21 2002). 22 For these reasons, the Court dismisses Plaintiff’s claims against both Defendants 23 Marientes and Crespo pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b)(1). See also 24 Harris v. Holguin, No. CV1810382DMGDFM, 2019 WL 7987683, at *4 (C.D. Cal. Feb. 25 27, 2019) (sua sponte dismissing claims against correctional officers alleged to have 26 “d[one] nothing but sit there and watch” another officer’s acts of harassment, 27 discrimination, and retaliation, and to have failed to “stop or correct t[he] injustice.”). 28 /// 1 2. Defendants Hultz, Strong, Jaramillo & Pamplin 2 The Court does find, however, that Plaintiff’s retaliation and excessive force 3 claims, alleged to have arisen at RJD on July 12-14, 2017, and involving Defendants 4 Hultz, Strong, Jaramillo, and Pamplin only, are sufficient to surpass the “low threshold” 5 set for initial sua sponte screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b).19 6 See Wilhelm, 680 F.3d at 1123; Iqbal, 556 U.S. at 678; Hudson, 503 U.S. at 6‒7; Rhodes, 7 408 F.3d at 567‒68. 8 G. LAC Defendants & Claims 9 Finally, with respect to all claims alleged against Defendants Puentes, Mebane, 10 Nkoocha, and Thompson, arising at LAC beginning in late December 2017, and 11 continuing as late as September 2019, the Court finds they are unrelated and improperly 12 joined to the transactions, occurrences, and claims alleged against the RJD Defendants 13 which form the basis of Plaintiff’s suit. 14 The Federal Rules of Civil Procedure set forth the rules regarding joinder of parties 15 or claims. “A party asserting a claim, counterclaim, crossclaim, or third-party claim may 16 join, as independent or alternate claims, as many claims as it has against an opposing 17 party.” Fed. R. Civ. P. 18(a). “Unrelated claims against different defendants belong in 18 different suits, not only to prevent the sort of morass [a multiple claim, multiple 19 defendant] suit produce[s], but also to ensure that prisoners pay the required filing fees- 20 for the Prison Litigation Reform Act limits to 3 the number of frivolous suits or appeals 21 that any prisoner may file without prepayment of the required fees. 28 U.S.C. § 1915(g).” 22 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007); Palmer v. Woodford, No. 1:06-CV- 23 00512-LJO, 2011 WL 6294372, at *1-2 (E.D. Cal. Dec. 15, 2011). Moreover, claims may 24 be brought against multiple defendants only if (1) the claim arises out of the same 25

26 19 Plaintiff is cautioned that “the sua sponte screening and dismissal procedure is cumulative of, and not a 27 substitute for, any subsequent Rule 12(b)(6) motion that [any individual defendant] may choose to bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007). 28 1 transaction or occurrence, or series of transactions and occurrences, and (2) there are 2 common questions of law or fact. Fed. R. Civ. P. 20(a)(2); Coughlin v. Rogers, 130 F.3d 3 1348, 1351 (9th Cir. 1997); Desert Empire Bank v. Insurance Co. of North America, 623 4 F.3d 1371, 1375 (9th Cir. 1980). 5 As currently pleaded, the LAC claims Plaintiff tacks on to the July 2017 6 retaliation, excessive force, disciplinary hearing claims alleged against the named RJD 7 Defendants, and arising at a different facility at least six months to more than two years 8 after, are not properly joined pursuant to Federal Rules of Civil Procedure 18 and 20, and 9 therefore may not proceed in a single action. See e.g., Palmer, 2011 WL 6294372, at *1- 10 2; Coughlin, 130 F.3d at 1351. Plaintiff’s LAC claims do not arise out of the same 11 transaction or occurrence as his RJD claims, involve a whole separate set of Defendants, 12 and do not present common questions of fact or law. See Fed. R. Civ. P. 20(a)(2). 13 Therefore, while Plaintiff may amend his disciplinary hearing claims arising at 14 RJD as a result of the July 12, 2017 through July 14, 2017 incidents with respect to 15 Defendants Cottrell, Fink, Luna, Garza, Aliva, Crespo, Ortiz, and Legier and/or his First 16 and Eighth Amendment claims with respect to Defendants Marientes and Crespo in order 17 to address his pleading deficiencies as explained above, the remainder of his claims, all 18 alleged to have arisen at LAC are subject to dismissal without prejudice, but without 19 leave to amend in this case, should he wish to raise them in a new and separate civil 20 action, filed in the proper venue. See 28 U.S.C. § 84(c)(2) (“The [Western Division of 21 the] Central District [of California] comprises the counties of … Los Angeles, ….”); see 22 also 28 U.S.C. § 1391(b)(1), (2). 23 H. Leave to Amend 24 A pro se litigant typically must be given leave to amend his pleading to state a 25 claim unless it is absolutely clear the deficiencies cannot be cured by amendment. See 26 Lopez, 203 F.3d at 1130 (noting leave to amend should be granted when a complaint is 27 dismissed under 28 U.S.C. § 1915(e) “if it appears at all possible that the plaintiff can 28 correct the defect”). Therefore, to the extent Plaintiff wishes, the Court will grant him a 1 chance to fix the pleading deficiencies discussed in this Order, but with respect to his 2 RJD claims only. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik 3 v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). 4 In the alternative, should Plaintiff wish to proceed with respect to his retaliation 5 and excessive force claims against RJD Defendants Hultz, Strong, Jaramillo, and 6 Pamplin, he may file a Notice indicating his intent to stand on his original Complaint and 7 proceed with those claims only. If Plaintiff chooses this option, the Court will then direct 8 the United States Marshal to effect service of his original Complaint on Defendants 9 Hultz, Strong, Jaramillo, and Pamplin pursuant to 28 U.S.C. § 1915(d) and Fed. R. Civ. 10 P. 4(c)(3). 11 IV. Conclusion and Orders 12 Based on the foregoing, the Court: 13 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) 14 (ECF No. 2) and DENIES his Motion to Appoint Counsel (ECF No. 7). 15 2. ORDERS the Secretary of the CDCR, or his designee, to collect from 16 Plaintiff’s trust account the full $350 filing fee owed in this case, and to submit to the 17 Clerk of the Court monthly payments in an amount equal to twenty percent (20%) of the 18 preceding month’s income, each time the amount in his account exceeds $10 pursuant to 19 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE CLEARLY IDENTIFIED BY 20 THE NAME AND NUMBER ASSIGNED TO THIS ACTION. 21 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph 22 Diaz, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001. 23 4. DISMISSES Plaintiff’s Complaint sua sponte for failing to state a claim 24 upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 25 § 1915A(b)(1), without prejudice and with leave to amend as to Defendants Kernan, 26 Paramo, Asuncion, Marientes, Cottrell, Fink, Luna, Garza, Crespo, Aliva, Olivarria, Self, 27 Legier, and Ortiz. 28 /// 1 5. DISMISSES Plaintiff’s claims as to Defendants Mebane, Puentes, Nkoocha, 2 and Thompson without prejudice but without leave to amend in this action as improperly 3 joined pursuant to Fed. R. Civ. P. 18 and 20; and 4 5. GRANTS Plaintiff forty-five (45) days leave from the date of this Order in 5 which to either: 6 (a) Notify the Court of his intention to proceed with the retaliation and 7 excessive force claims alleged in his original Complaint against RJD Defendants Hultz, 8 Strong, Jaramillo, and Pamplin only; or 9 (b) File an Amended Complaint which cures all the deficiencies of pleading 10 noted in this Order with respect to his First, Eighth, and Fourteenth Amendment claims 11 against the RJD Defendants. Plaintiff is cautioned that should he choose this course, his 12 Amended Complaint must be clearly entitled “First Amended Complaint,” include Civil 13 Case No. 3:19-cv-02355-LAB-KSC in its caption, and be complete by itself without 14 reference to his original Complaint. Plaintiff must re-allege all claims in their entirety, 15 including his retaliation and excessive force claims against Defendants Hultz, Strong, 16 Jaramillo, and Pamplin, because any Defendant not re-named and any claim not re- 17 alleged in the Amended Complaint will be considered waived. See S.D. Cal. CivLR 15.1; 18 Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 19 1989) (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 20 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which 21 are not re-alleged in an amended pleading may be “considered waived if not repled.”). 22 If Plaintiff fails to choose either of these options within 45 days, the Court will 23 enter a Order dismissing his case based both on his failure to state a claim upon which 24 relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), § 1915A(b)(1), and his 25 failure to prosecute in compliance with a court order. See Lira v. Herrera, 427 F.3d 1164, 26 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity to fix his 27 complaint, a district court may convert the dismissal of the complaint into a dismissal of 28 the entire action.”); S.D. Cal. CivLR 41.1; Edwards v. Marin Park, Inc., 356 F.3d 1058, 1 |] 1065 (9th Cir. 2004) (finding sua sponte dismissal pursuant to Fed. R. Civ. P. 41(b) 2 || proper where a plaintiff is notified of deficiencies in complaint and is given “the 3 || opportunity to amend [the complaint] or be dismissed” but “[does] nothing.”) (citations 4 || omitted; emphasis in original). 5 IT IS SO ORDERED. 6 7 Dated: April 29, 2020 (bi / A. (4, yy 8 Hon. Larry Alan Burns 9 Chief United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 31