1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 KEVIN DEAN BRAZIER, Case No. 23-cv-06527-EKL
9 Plaintiff, ORDER OF SERVICE v. 10
11 S. MORA, et al., Defendants. 12
13 14 Plaintiff, a state prisoner, filed a pro se civil rights complaint under 42 U.S.C. § 1983. The 15 original complaint was dismissed with leave to amend and plaintiff has filed an amended 16 complaint (ECF No. 10). 17 DISCUSSION 18 Standard of Review 19 Federal courts engage in a preliminary screening of cases in which prisoners seek redress 20 from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 21 § 1915A(a). In its review, the Court must identify any cognizable claims, and dismiss any claims 22 that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 23 monetary relief from a defendant who is immune from such relief. Id. § 1915A(b)(1), (2). Pro se 24 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 25 Cir. 1990). 26 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 27 claim showing that the pleader is entitled to relief.” Although a complaint “does not need detailed 1 relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a 2 cause of action will not do . . . . Factual allegations must be enough to raise a right to relief above 3 the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations 4 omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its 5 face.” Id. at 570. The United States Supreme Court has explained the “plausible on its face” 6 standard of Twombly: “While legal conclusions can provide the framework of a complaint, they 7 must be supported by factual allegations. When there are well-pleaded factual allegations, a court 8 should assume their veracity and then determine whether they plausibly give rise to an entitlement 9 to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 10 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1) a right secured by 11 the Constitution or laws of the United States was violated, and (2) the alleged deprivation was 12 committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 13 Liability may be imposed on an individual defendant under 42 U.S.C. § 1983 if the 14 plaintiff can show that the defendant’s actions actually and proximately caused the deprivation of 15 a federally protected right. Lemire v. California Dep’t of Corrections & Rehabilitation, 726 F.3d 16 1062, 1074 (9th Cir. 2013); Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). A person deprives 17 another of a constitutional right within the meaning of Section 1983 if he does an affirmative act, 18 participates in another’s affirmative act, or fails to perform an act that he is legally required to do, 19 causing the deprivation of which the plaintiff complains. Id. at 633. 20 Plaintiff’s Allegations 21 On December 28, 2021, defendant Mora informed plaintiff that a prison wide inspection 22 was being conducted of inmates’ personal electronic tablets. ECF No. 10 at 3. Plaintiff provided 23 Mora with his tablet which was taken to another location and Mora did not provide any written 24 paperwork in violation of prison regulations. Id. The tablet was later lost due to the negligence of 25 prison employees. Id. 26 On January 18, 2022, plaintiff filed a grievance seeking the return of his electronic tablet. 27 Id. On March 8, 2022, plaintiff received a Rules Violation Report (RVR) for possessing an 1 4 at 5. Plaintiff states the RVR was in retaliation for filing the inmate grievance. ECF No. 10 at 3 2 Plaintiff was found guilty at a disciplinary hearing, though he contends that the RVR was issued 3 too late under prison regulations and the date of the offense was improperly changed. Id. at 4. 4 Plaintiff lost time credits as punishment for the violation. ECF No. 4 at 7. 5 Analysis 6 “Within the prison context, a viable claim of First Amendment retaliation entails five basic 7 elements: (1) An assertion that a state actor took some adverse action against an inmate (2) 8 because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 9 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 10 correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted). 11 Accord Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (prisoner suing prison officials under 12 § 1983 for retaliation must allege that he was retaliated against for exercising his constitutional 13 rights and that the retaliatory action did not advance legitimate penological goals, such as 14 preserving institutional order and discipline); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) 15 (per curiam) (same). The prisoner must show that the type of activity he was engaged in was 16 constitutionally protected, that the protected conduct was a substantial or motivating factor for the 17 alleged retaliatory action, and that the retaliatory action advanced no legitimate penological 18 interest. Hines v. Gomez, 108 F.3d 265, 267-68 (9th Cir. 1997) (inferring retaliatory motive from 19 circumstantial evidence). 20 Neither the negligent nor intentional deprivation of property states a due process claim 21 under Section 1983 if the deprivation was random and unauthorized. See Parratt v. Taylor, 451 22 U.S. 527, 535-44 (1981) (state employee negligently lost prisoner's hobby kit), overruled in part 23 on other grounds, Daniels v. Williams, 474 U.S. 327, 330-31 (1986); Hudson v. Palmer, 468 U.S. 24 517, 533 (1984) (intentional destruction of inmate’s property). The availability of an adequate 25 state post-deprivation remedy, e.g., a state tort action, precludes relief because it provides 26 sufficient procedural due process. See Zinermon v. Burch, 494 U.S. 113, 128 (1990) (where state 27 cannot foresee, and therefore provide meaningful hearing prior to, deprivation statutory provision 1 process). California law provides such an adequate post-deprivation remedy. See Barnett v.
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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 KEVIN DEAN BRAZIER, Case No. 23-cv-06527-EKL
9 Plaintiff, ORDER OF SERVICE v. 10
11 S. MORA, et al., Defendants. 12
13 14 Plaintiff, a state prisoner, filed a pro se civil rights complaint under 42 U.S.C. § 1983. The 15 original complaint was dismissed with leave to amend and plaintiff has filed an amended 16 complaint (ECF No. 10). 17 DISCUSSION 18 Standard of Review 19 Federal courts engage in a preliminary screening of cases in which prisoners seek redress 20 from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 21 § 1915A(a). In its review, the Court must identify any cognizable claims, and dismiss any claims 22 that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 23 monetary relief from a defendant who is immune from such relief. Id. § 1915A(b)(1), (2). Pro se 24 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 25 Cir. 1990). 26 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 27 claim showing that the pleader is entitled to relief.” Although a complaint “does not need detailed 1 relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a 2 cause of action will not do . . . . Factual allegations must be enough to raise a right to relief above 3 the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations 4 omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its 5 face.” Id. at 570. The United States Supreme Court has explained the “plausible on its face” 6 standard of Twombly: “While legal conclusions can provide the framework of a complaint, they 7 must be supported by factual allegations. When there are well-pleaded factual allegations, a court 8 should assume their veracity and then determine whether they plausibly give rise to an entitlement 9 to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 10 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1) a right secured by 11 the Constitution or laws of the United States was violated, and (2) the alleged deprivation was 12 committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 13 Liability may be imposed on an individual defendant under 42 U.S.C. § 1983 if the 14 plaintiff can show that the defendant’s actions actually and proximately caused the deprivation of 15 a federally protected right. Lemire v. California Dep’t of Corrections & Rehabilitation, 726 F.3d 16 1062, 1074 (9th Cir. 2013); Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). A person deprives 17 another of a constitutional right within the meaning of Section 1983 if he does an affirmative act, 18 participates in another’s affirmative act, or fails to perform an act that he is legally required to do, 19 causing the deprivation of which the plaintiff complains. Id. at 633. 20 Plaintiff’s Allegations 21 On December 28, 2021, defendant Mora informed plaintiff that a prison wide inspection 22 was being conducted of inmates’ personal electronic tablets. ECF No. 10 at 3. Plaintiff provided 23 Mora with his tablet which was taken to another location and Mora did not provide any written 24 paperwork in violation of prison regulations. Id. The tablet was later lost due to the negligence of 25 prison employees. Id. 26 On January 18, 2022, plaintiff filed a grievance seeking the return of his electronic tablet. 27 Id. On March 8, 2022, plaintiff received a Rules Violation Report (RVR) for possessing an 1 4 at 5. Plaintiff states the RVR was in retaliation for filing the inmate grievance. ECF No. 10 at 3 2 Plaintiff was found guilty at a disciplinary hearing, though he contends that the RVR was issued 3 too late under prison regulations and the date of the offense was improperly changed. Id. at 4. 4 Plaintiff lost time credits as punishment for the violation. ECF No. 4 at 7. 5 Analysis 6 “Within the prison context, a viable claim of First Amendment retaliation entails five basic 7 elements: (1) An assertion that a state actor took some adverse action against an inmate (2) 8 because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 9 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 10 correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted). 11 Accord Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (prisoner suing prison officials under 12 § 1983 for retaliation must allege that he was retaliated against for exercising his constitutional 13 rights and that the retaliatory action did not advance legitimate penological goals, such as 14 preserving institutional order and discipline); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) 15 (per curiam) (same). The prisoner must show that the type of activity he was engaged in was 16 constitutionally protected, that the protected conduct was a substantial or motivating factor for the 17 alleged retaliatory action, and that the retaliatory action advanced no legitimate penological 18 interest. Hines v. Gomez, 108 F.3d 265, 267-68 (9th Cir. 1997) (inferring retaliatory motive from 19 circumstantial evidence). 20 Neither the negligent nor intentional deprivation of property states a due process claim 21 under Section 1983 if the deprivation was random and unauthorized. See Parratt v. Taylor, 451 22 U.S. 527, 535-44 (1981) (state employee negligently lost prisoner's hobby kit), overruled in part 23 on other grounds, Daniels v. Williams, 474 U.S. 327, 330-31 (1986); Hudson v. Palmer, 468 U.S. 24 517, 533 (1984) (intentional destruction of inmate’s property). The availability of an adequate 25 state post-deprivation remedy, e.g., a state tort action, precludes relief because it provides 26 sufficient procedural due process. See Zinermon v. Burch, 494 U.S. 113, 128 (1990) (where state 27 cannot foresee, and therefore provide meaningful hearing prior to, deprivation statutory provision 1 process). California law provides such an adequate post-deprivation remedy. See Barnett v. 2 Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) (citing Cal. Gov’t Code §§ 810-895). 3 In order to recover damages for an allegedly unconstitutional conviction or imprisonment, 4 or for other harm caused by actions whose unlawfulness would render a conviction or sentence 5 invalid, a 42 U.S.C. § 1983 plaintiff must prove that the conviction or sentence has been reversed 6 on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to 7 make such determination, or called into question by a federal court’s issuance of a writ of habeas 8 corpus. Heck v. Humphrey, 512 U.S. 477, 486-487 (1994). Heck bars a claim of unconstitutional 9 deprivation of time credits because such a claim necessarily calls into question the lawfulness of 10 the plaintiff’s continuing confinement, i.e., it implicates the duration of the plaintiff’s sentence. 11 See Edwards v. Balisok, 520 U.S. 641, 645 (1997) (applying Heck bar to claim that officials used 12 unconstitutional procedures in disciplinary hearing that resulted in deprivation of time credits if 13 nature of challenge to procedures is “such as necessarily to imply the invalidity of the judgment”). 14 In the original complaint, the Court found that plaintiff stated a retaliation claim against 15 Mora but dismissed the remaining claims with leave to amend. The Court noted that plaintiff 16 could not bring a claim regarding the RVR, because he lost time credits and it did not appear the 17 finding had been reversed or expunged. Plaintiff was also informed that the negligent loss of 18 property or violation of prison regulations failed to state a federal claim. He was provided an 19 opportunity to present additional allegations for these claims. 20 The amended complaint is substantially similar to the original complaint and does not 21 address the deficiencies noted by the Court. Therefore, the case continues with the retaliation 22 claim against Mora but all other claims are dismissed for failure to state a claim, pursuant to the 23 legal standards above. 24 CONCLUSION 25 1. The Court orders that defendant Custody Officer S. Mora be served electronically 26 at Correctional Training Facility-Soledad for the claim of retaliation. All other claims and 27 defendants are dismissed. 1 Service on the listed defendant will be effected via the California Department of 2 Corrections and Rehabilitation’s (CDCR) e-service program for civil rights cases from prisoners 3 in CDCR custody. In accordance with the program, the Clerk is directed to serve on CDCR via 4 email the following documents: the operative amended complaint (ECF No. 10), this order of 5 service, a CDCR Report of E-Service Waiver form and a summons. The Clerk is also requested to 6 serve a copy of this order on the plaintiff. 7 No later than 40 days after service of this order via email on CDCR, CDCR will provide 8 the Court a completed CDCR Report of E-Service Waiver advising the court which defendant 9 listed in this order will be waiving service of process without the need for service by the United 10 States Marshal Service (USMS) and which defendant declines to waive service or could not be 11 reached. CDCR also will provide a copy of the CDCR Report of E-Service Waiver to the 12 California Attorney General’s Office which, within 21 days, will file with the Court a waiver of 13 service of process for the defendant if he is waiving service. 14 Upon receipt of the CDCR Report of E-Service Waiver, the Clerk is requested to prepare 15 for each defendant who has not waived service according to the CDCR Report of E-Service 16 Waiver a USM-285 Form. The Clerk will provide to the USMS the completed USM-285 forms 17 and copies of this order, the summons, and the operative complaint for service upon each 18 defendant who has not waived service. The Clerk will also provide to the USMS a copy of the 19 CDCR Report of E-Service Waiver. 20 2. To expedite the resolution of this case, the Court orders: 21 a. No later than sixty days from the date of service, the defendant will file a 22 motion for summary judgment or other dispositive motion. The motion will be supported by 23 adequate factual documentation and will conform in all respects to Federal Rule of Civil 24 Procedure 56, and will include as exhibits all records and incident reports stemming from the 25 events at issue. If defendant is of the opinion that this case cannot be resolved by summary 26 judgment, they will so inform the Court prior to the date the summary judgment motion is due. 27 All papers filed with the Court will be promptly served on the plaintiff. 1 b. At the time the dispositive motion is served, defendant will also serve, on a 2 separate paper, the appropriate notice(s) required by Rand v. Rowland, 154 F.3d 952, 953-954 (9th 3 Cir. 1998) (en banc), and Wyatt v. Terhune, 315 F.3d 1108, 1120 n.4 (9th Cir. 2003). See Woods 4 v. Carey, 684 F.3d 934, 940-941 (9th Cir. 2012) (Rand and Wyatt notices must be given at the 5 time motion for summary judgment or motion to dismiss for non-exhaustion is filed, not earlier); 6 Rand, 154 F.3d at 960 (separate paper requirement). 7 c. Plaintiff’s opposition to the dispositive motion, if any, will be filed with the 8 Court and served upon defendant no later than thirty days from the date the motion was served 9 upon him. Plaintiff must read the attached page headed “NOTICE -- WARNING,” which is 10 provided to him pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc), 11 and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). 12 If defendant files a motion for summary judgment claiming that plaintiff failed to exhaust 13 his available administrative remedies as required by 42 U.S.C. § 1997e(a), plaintiff should take 14 note of the attached page headed “NOTICE -- WARNING (EXHAUSTION),” which is provided 15 to him as required by Wyatt v. Terhune, 315 F.3d 1108, 1120 n.4 (9th Cir. 2003). 16 d. If defendant wishes to file a reply brief, they will do so no later than fifteen 17 days after the opposition is served upon him. 18 e. The motion will be deemed submitted as of the date the reply brief is due. 19 No hearing will be held on the motion unless the Court so orders at a later date. 20 3. All communications by plaintiff with the Court must be served on defendant, or 21 defendant’s counsel once counsel has been designated, by mailing a true copy of the document to 22 defendant or defendant’s counsel. 23 4. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. 24 No further Court order is required before the parties may conduct discovery. 25 5. It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court 26 informed of any change of address by filing a separate paper with the clerk headed “Notice of 27 Change of Address.” He also must comply with the Court’s orders in a timely fashion. Failure to 1 Civil Procedure 41(b). 2 IT IS SO ORDERED. 3 Dated: February 4, 2025 4 5 Eumi K. Lee 6 United States District Judge 7 8 9 10 11 a 12
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1 NOTICE -- WARNING (SUMMARY JUDGMENT) 2 If defendants move for summary judgment, they are seeking to have your case dismissed. 3 A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if 4 granted, end your case. 5 Rule 56 tells you what you must do in order to oppose a motion for summary judgment. 6 Generally, summary judgment must be granted when there is no genuine issue of material fact-- 7 that is, if there is no real dispute about any fact that would affect the result of your case, the party 8 who asked for summary judgment is entitled to judgment as a matter of law, which will end your 9 case. When a party you are suing makes a motion for summary judgment that is properly 10 supported by declarations (or other sworn testimony), you cannot simply rely on what your 11 complaint says. Instead, you must set out specific facts in declarations, depositions, answers to 12 interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts 13 shown in the defendant’s declarations and documents and show that there is a genuine issue of 14 material fact for trial. If you do not submit your own evidence in opposition, summary judgment, 15 if appropriate, may be entered against you. If summary judgment is granted, your case will be 16 dismissed and there will be no trial. 17 NOTICE -- WARNING (EXHAUSTION) 18 If defendants file a motion for summary judgment for failure to exhaust, they are seeking 19 to have your case dismissed. If the motion is granted it will end your case. 20 You have the right to present any evidence you may have which tends to show that you did 21 exhaust your administrative remedies. Such evidence may be in the form of declarations 22 (statements signed under penalty of perjury) or authenticated documents, that is, documents 23 accompanied by a declaration showing where they came from and why they are authentic, or other 24 sworn papers, such as answers to interrogatories or depositions. If defendants file a motion for 25 summary judgment for failure to exhaust and it is granted, your case will be dismissed and there 26 will be no trial.