1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LEONARD V. CHARLES, Case No. 25-CV-1475-TWR (JLB) CDCR #K-89149, 12 ORDER DISMISSING FIRST Plaintiff, 13 AMENDED COMPLAINT vs. PURSUANT TO 28 U.S.C. 14 § 1915A(b)(1) S. AMADOR, Captain, et al., 15 Defendants. (ECF No. 8) 16 17 18 Plaintiff Leonard V. Charles is a state inmate incarcerated at the Richard J. Donovan 19 Correctional Facility (“RJD”) in San Diego, California, proceeding pro se with this civil 20 rights action pursuant to 42 U.S.C. § 1983. On March 16, 2026, the Court dismissed 21 Plaintiff’s Complaint with leave to amend for failure to state a claim upon which relief may 22 be granted. (ECF No. 7.) Plaintiff then filed a First Amended Complaint. (See ECF No. 23 8.) For the reasons stated below, the Court DISMISSES Plaintiff’s First Amended 24 Complaint with leave to amend pursuant to 28 U.S.C. § 1915(A)(b)(1). 25 SCREENING PURSUANT TO 28 U.S.C. § 1915A 26 I. Legal Standards 27 The Court must conduct an initial review of the First Amended Complaint under 28 28 U.S.C. § 1915A, which “mandates early review - ‘before docketing () or () as soon as 1 practicable after docketing’ - for all complaints ‘in which a prisoner seeks redress from a 2 governmental entity or officer or employee of a governmental entity.’” Chavez v. 3 Robinson, 817 F.3d 1162, 1168 (9th Cir. 2016) (quoting 28 U.S.C. § 1915A(a)) (alterations 4 in original). “‘On review, the court shall . . . dismiss the complaint, or any portion of the 5 complaint,’ if it ‘(1) is frivolous, malicious, or fails to state a claim upon which relief may 6 be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.’” 7 Olivas v. Nevada ex rel. Dept. of Corr., 856 F.3d 1281, 1283 (9th Cir. 2017) (quoting 28 8 U.S.C. § 1915A(b)). Screening pursuant to § 1915A “incorporates the familiar standard 9 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 10 12(b)(6).” Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). “The Rule 12(b)(6) 11 standard requires a complaint to ‘contain sufficient factual matter, accepted as true, to state 12 a claim to relief that is plausible on its face.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 13 678 (2009)). 14 “Section 1983 creates a private right of action against individuals who, acting under 15 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 16 263 F.3d 1070, 1074 (9th Cir. 2001). “To establish § 1983 liability, a plaintiff must show 17 both (1) deprivation of a right secured by the Constitution and laws of the United States, 18 and (2) that the deprivation was committed by a person acting under color of state law.” 19 Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 20 II. Allegations in the First Amended Complaint 21 Plaintiff alleges that on June 15, 2024, he asked Defendant RJD Correctional Officer 22 San Miguel to remove him from Facility D due to safety concerns and he was taken to a 23 secure cell in the D Yard gym. (ECF No. 8-1 (“FAC”) at 4.) San Miguel interviewed 24 Plaintiff several hours later and told Plaintiff he could not leave the yard because Defendant 25 Correctional Officer Rodriguez had told San Miguel that Plaintiff “had to snitch on 26 someone in order to be housed in the hole for protection.” (Id.) San Miguel said it “was 27 the procedure and the only way [Plaintiff] could leave the facility.” (Id.) Plaintiff was in 28 a cage for hours and was cold and hungry, and “told San Miguel and by way of the Lt. 1 Rodriquez what they wanted to hear,” and falsely admitted to being a spice dealer. (Id. at 2 4, 34.) 3 During Plaintiff’s “114 lockup review,” Defendant Captain Amador “threatened 4 [Plaintiff] saying if [he] did not go to the yard she would insure [he] would receive a CDCR 5 115 for behavior leading to violence.” (Id. at 4.) Plaintiff refused to go to the yard “because 6 [he] was afraid to be jumped on for leaving.” (Id.) He “was kept in a cold cell with no 7 clean laundry, the smell of rank urine and feces for weeks,” and was denied his property 8 and soap. (Id.) 9 “Weeks later” Plaintiff received a CDCR 115 charging him with behavior leading to 10 violence and was given a hearing by Defendant Martinez, who found him guilty. (Id.) 11 Plaintiff’s appeal was granted, and the charge was dismissed. (Id.) He then filed a 12 grievance in which he explained that his safety concern arose from witnessing an inmate 13 assault another inmate while “staff did nothing,” and “that as a result of [his] restricted 14 housing unit placement a rumor had started that [he] had snitched on Inmate Taylor, the 15 blood’s gang faction, the Mexicans, the Green Light, stg, gang faction.” (Id. at 4–5.) 16 Plaintiff was seen walking to an interview with Martinez, and states that Taylor and several 17 bloods called him a snitch before and after the interview. (Id. at 5.) Plaintiff refused to 18 shower or go to recreation because “Taylor and his homies would scream all day every day 19 how [Plaintiff] snitched on him and got him caught with a knife.” (Id.) Additionally, 20 Plaintiff’s “neighbor was a mainline blood when [Plaintiff] was housed in C section.” (Id.) 21 His neighbor “kicked on [Plaintiff’s] cell wall for hours each and every day and night 22 saying blood [‘]you a bitch snitch, trying to help a fag,[’]” causing him to be unable to 23 sleep, think or shower, and to feel intimidation, anguish and sadness. (Id.) 24 Plaintiff was later placed on a bus to be transferred to Corcoran State Prison with 25 Taylor, who kicked Plaintiff as he walked past “and called [Plaintiff] a rat faggot lover.” 26 (Id.) When Plaintiff told the transportation officer he feared for his safety and could not 27 travel with Taylor, he was told they could not stop the transport but he would be taken back 28 to RJD. (Id. at 5–6.) Plaintiff spent the night at Kern Valley State Prison with only a sheet 1 to keep from freezing and could not sleep due to fear of returning to RJD. (Id.) Back at 2 RJD, Plaintiff was denied food while waiting hours to be interviewed and was told he 3 would go back to the restricted housing unit until a committee decided whether to transfer 4 him or return him to Facility D. (Id.) Plaintiff felt sick and was housed in a freezing cell 5 where “the name calling did not stop.” (Id.) He was then housed in Taylor’s old cell on 6 Facility D and harassed day and night. (Id.) “Weeks later” he was transferred to Facility 7 E and “thought he was going to [get] a fresh start, a clean cell, [and his] property.” (Id.) 8 Several months later Amador asked Plaintiff if he was “already selling spice on her 9 yard.” (Id. at 7.) Plaintiff filed a grievance regarding his property, which he had not 10 received, and begged Amador to stop harassing him and drop the CDCR 115 charge, but 11 she laughed.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LEONARD V. CHARLES, Case No. 25-CV-1475-TWR (JLB) CDCR #K-89149, 12 ORDER DISMISSING FIRST Plaintiff, 13 AMENDED COMPLAINT vs. PURSUANT TO 28 U.S.C. 14 § 1915A(b)(1) S. AMADOR, Captain, et al., 15 Defendants. (ECF No. 8) 16 17 18 Plaintiff Leonard V. Charles is a state inmate incarcerated at the Richard J. Donovan 19 Correctional Facility (“RJD”) in San Diego, California, proceeding pro se with this civil 20 rights action pursuant to 42 U.S.C. § 1983. On March 16, 2026, the Court dismissed 21 Plaintiff’s Complaint with leave to amend for failure to state a claim upon which relief may 22 be granted. (ECF No. 7.) Plaintiff then filed a First Amended Complaint. (See ECF No. 23 8.) For the reasons stated below, the Court DISMISSES Plaintiff’s First Amended 24 Complaint with leave to amend pursuant to 28 U.S.C. § 1915(A)(b)(1). 25 SCREENING PURSUANT TO 28 U.S.C. § 1915A 26 I. Legal Standards 27 The Court must conduct an initial review of the First Amended Complaint under 28 28 U.S.C. § 1915A, which “mandates early review - ‘before docketing () or () as soon as 1 practicable after docketing’ - for all complaints ‘in which a prisoner seeks redress from a 2 governmental entity or officer or employee of a governmental entity.’” Chavez v. 3 Robinson, 817 F.3d 1162, 1168 (9th Cir. 2016) (quoting 28 U.S.C. § 1915A(a)) (alterations 4 in original). “‘On review, the court shall . . . dismiss the complaint, or any portion of the 5 complaint,’ if it ‘(1) is frivolous, malicious, or fails to state a claim upon which relief may 6 be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.’” 7 Olivas v. Nevada ex rel. Dept. of Corr., 856 F.3d 1281, 1283 (9th Cir. 2017) (quoting 28 8 U.S.C. § 1915A(b)). Screening pursuant to § 1915A “incorporates the familiar standard 9 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 10 12(b)(6).” Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). “The Rule 12(b)(6) 11 standard requires a complaint to ‘contain sufficient factual matter, accepted as true, to state 12 a claim to relief that is plausible on its face.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 13 678 (2009)). 14 “Section 1983 creates a private right of action against individuals who, acting under 15 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 16 263 F.3d 1070, 1074 (9th Cir. 2001). “To establish § 1983 liability, a plaintiff must show 17 both (1) deprivation of a right secured by the Constitution and laws of the United States, 18 and (2) that the deprivation was committed by a person acting under color of state law.” 19 Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 20 II. Allegations in the First Amended Complaint 21 Plaintiff alleges that on June 15, 2024, he asked Defendant RJD Correctional Officer 22 San Miguel to remove him from Facility D due to safety concerns and he was taken to a 23 secure cell in the D Yard gym. (ECF No. 8-1 (“FAC”) at 4.) San Miguel interviewed 24 Plaintiff several hours later and told Plaintiff he could not leave the yard because Defendant 25 Correctional Officer Rodriguez had told San Miguel that Plaintiff “had to snitch on 26 someone in order to be housed in the hole for protection.” (Id.) San Miguel said it “was 27 the procedure and the only way [Plaintiff] could leave the facility.” (Id.) Plaintiff was in 28 a cage for hours and was cold and hungry, and “told San Miguel and by way of the Lt. 1 Rodriquez what they wanted to hear,” and falsely admitted to being a spice dealer. (Id. at 2 4, 34.) 3 During Plaintiff’s “114 lockup review,” Defendant Captain Amador “threatened 4 [Plaintiff] saying if [he] did not go to the yard she would insure [he] would receive a CDCR 5 115 for behavior leading to violence.” (Id. at 4.) Plaintiff refused to go to the yard “because 6 [he] was afraid to be jumped on for leaving.” (Id.) He “was kept in a cold cell with no 7 clean laundry, the smell of rank urine and feces for weeks,” and was denied his property 8 and soap. (Id.) 9 “Weeks later” Plaintiff received a CDCR 115 charging him with behavior leading to 10 violence and was given a hearing by Defendant Martinez, who found him guilty. (Id.) 11 Plaintiff’s appeal was granted, and the charge was dismissed. (Id.) He then filed a 12 grievance in which he explained that his safety concern arose from witnessing an inmate 13 assault another inmate while “staff did nothing,” and “that as a result of [his] restricted 14 housing unit placement a rumor had started that [he] had snitched on Inmate Taylor, the 15 blood’s gang faction, the Mexicans, the Green Light, stg, gang faction.” (Id. at 4–5.) 16 Plaintiff was seen walking to an interview with Martinez, and states that Taylor and several 17 bloods called him a snitch before and after the interview. (Id. at 5.) Plaintiff refused to 18 shower or go to recreation because “Taylor and his homies would scream all day every day 19 how [Plaintiff] snitched on him and got him caught with a knife.” (Id.) Additionally, 20 Plaintiff’s “neighbor was a mainline blood when [Plaintiff] was housed in C section.” (Id.) 21 His neighbor “kicked on [Plaintiff’s] cell wall for hours each and every day and night 22 saying blood [‘]you a bitch snitch, trying to help a fag,[’]” causing him to be unable to 23 sleep, think or shower, and to feel intimidation, anguish and sadness. (Id.) 24 Plaintiff was later placed on a bus to be transferred to Corcoran State Prison with 25 Taylor, who kicked Plaintiff as he walked past “and called [Plaintiff] a rat faggot lover.” 26 (Id.) When Plaintiff told the transportation officer he feared for his safety and could not 27 travel with Taylor, he was told they could not stop the transport but he would be taken back 28 to RJD. (Id. at 5–6.) Plaintiff spent the night at Kern Valley State Prison with only a sheet 1 to keep from freezing and could not sleep due to fear of returning to RJD. (Id.) Back at 2 RJD, Plaintiff was denied food while waiting hours to be interviewed and was told he 3 would go back to the restricted housing unit until a committee decided whether to transfer 4 him or return him to Facility D. (Id.) Plaintiff felt sick and was housed in a freezing cell 5 where “the name calling did not stop.” (Id.) He was then housed in Taylor’s old cell on 6 Facility D and harassed day and night. (Id.) “Weeks later” he was transferred to Facility 7 E and “thought he was going to [get] a fresh start, a clean cell, [and his] property.” (Id.) 8 Several months later Amador asked Plaintiff if he was “already selling spice on her 9 yard.” (Id. at 7.) Plaintiff filed a grievance regarding his property, which he had not 10 received, and begged Amador to stop harassing him and drop the CDCR 115 charge, but 11 she laughed. (Id.) Four months later, when Plaintiff saw Amador speaking to the Warden, 12 Plaintiff told the Warden, in front of Amador, “all she sent [him] through,” and the Warden 13 replied, “this ends today.” (Id.) Plaintiff received his property two days later. (Id.) 14 However, Amador later came to Plaintiff’s cell with Defendant Sergeant Meza and he was 15 strip-searched and sat in the dayroom for five hours while his property was destroyed. (Id. 16 at 9.) Amador “said she would lock [Plaintiff] up whenever she felt [he] was a threat,” and 17 Defendant Captain Lewis said Plaintiff “was on his shit list.” (Id.) 18 On January 21, 2026, Plaintiff was watching television in his cell when Lewis and 19 Defendant Captain Perez took him to the program office where he remained for five hours 20 without food “while they tore [his] property up.” (Id.) Several hours later, his request for 21 food and water was denied by Lewis and “all the correctional staff.” (Id. at 9, 11.) Plaintiff 22 was then taken to the restricted housing unit and placed in a suicide cell without food, 23 clothing, or a blanket, allegedly “for illicit criminal activities on E Facility,” but was not 24 given a lockup order by Lewis and had to ask staff for a copy. (Id. at 11.) He became 25 distraught and contemplated suicide because he thought he had helped someone escape 26 violence and Taylor was gone, “but the bloods kept sending word [he] was a rat,” causing 27 Plaintiff to constantly fear attack, and now he was accused of criminal activity. (Id.) 28 Five days later Plaintiff was taken to committee where he asked Lewis why he was 1 doing this, and Lewis responded that “he was told by Amador to put [Plaintiff] on his hit 2 list and [he] would go back to D Facility.” (Id. at 13.) Plaintiff told the Warden everything 3 at the committee hearing but was sent to the restricted housing unit for thirty days with 4 only the clothes he was wearing, without soap or hygiene products, where it was freezing 5 cold and “people [were] screaming how [he] must be a rat fag lover.” (Id. at 13, 15.) When 6 Plaintiff was interviewed by the appeals coordinator and was asked what happened with 7 Lewis, Plaintiff stated: 8 I told her on his first week of coming to E Facility he walked the yard and I was threatened by Captain Lewis and Sergeant I. Perez saying I was on 9 his hit list. Several days later I was interviewed by Sergeant I. Perez and asked 10 to give up information. I told him I don’t sell spice. I told him what information I knew and saw. He said 3 people overdosed since I left and he 11 would recommend I be sent back. I went to committee the Warden told me 12 he believed me. He told me he would make it safe and made enemies of all the people who persecuted me and unsubstantiated all the charges Captain 13 Lewis ordered and I. Perez documented and I would be sent to Level III A 14 Yard pending transfer to another Level II. I finally felt relief. I finally got some sleep. 15
16 (Id. at 15.) 17 Plaintiff contends that Defendants Amador, San Miguel, Lewis, Martinez, 18 Rodriguez, Meza, and Perez “put him in harms way, punishing him by putting him in 19 restrictive housing on (2) two occasions and denying him property, depriving him of a 20 liberty interest” without due process. (ECF No. 8 at 3–5.) He claims violations of his First 21 Amendment right to be free from retaliation, his Eighth Amendment right to be free from 22 cruel and unusual punishment, and his Fourteenth Amendment right to due process. (Id. 23 at 4.) 24 III. Discussion 25 A. Due Process 26 Plaintiff claims he was denied due process in connection to (1) his placement in the 27 restricted housing unit on June 15, 2024, pending disciplinary proceedings after being 28 coerced into falsely claiming to be a spice dealer as the only way available to avoid being 1 sent back to D Facility where he feared assault by other inmates; (2) his placement in the 2 restricted housing unit January 21, 2026, pending disciplinary proceedings apparently 3 arising from suspicion of being a spice dealer on E Facility; (3) his placement or retention 4 on D Facility and attempted transfer to another prison; and (4) the deprivation and 5 destruction of his personal property. (FAC at 4–15.) “To state a procedural due process 6 claim, [a plaintiff] must allege ‘(1) a liberty or property interest protected by the 7 Constitution; (2) a deprivation of the interest by the government; (and) (3) lack of 8 process.’” Wright v. Riveland, 219 F.3d 905, 913 (9th Cir. 2000) (quoting Portman v. Cnty. 9 of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993)). A protected liberty interest arises for 10 a prisoner “when the disciplinary action implicates a protected liberty interest in some 11 ‘unexpected matter’ or imposes an ‘atypical and significant hardship on the inmate in 12 relation to the ordinary incidents of prison life.’” Serrano v. Francis, 345 F.3d 1071, 1078 13 (9th Cir. 2003) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). 14 Plaintiff’s allegation that the disciplinary charges were wrongfully issued fails to 15 state a claim because “a prisoner does not have a constitutional right to be free from 16 wrongfully issued disciplinary reports.” Buckley v. Gomez, 36 F.Supp.2d 1216, 1222 (S.D. 17 Cal. 1997); see also e.g. Gadsden v. Gehris, No. 20cv0470-WQH (DEB), 2020 WL 18 5748094, at *8 (S.D. Cal. Sep. 25, 2020) (“The allegations of the filing of false disciplinary 19 charges by itself does not state a claim under 42 U.S.C. § 1983 because federal due process 20 protections are contained in the ensuing disciplinary proceedings themselves.”) Moreover, 21 because Plaintiff indicates both charges were dismissed (see FAC at 37–38; ECF No. 8-2 22 at 5), he fails to allege any due process violation at all. Sandin, 515 U.S. at 846; Shotwell 23 v. Brandt, 2012 WL 6569402, at *2 (N.D. Cal. Dec. 17, 2012) (finding no due process 24 violation where disciplinary charge was dismissed.) 25 Plaintiff’s allegations regarding the temporary taking and destruction of his personal 26 property also fails to state a due process claim because the deprivation of property by a 27 person acting under color of state law does not constitute a due process violation if a 28 meaningful state post-deprivation remedy is available, Hudson v. Palmer, 468 U.S. 517, 1 533 (1984), and because California provides an adequate post-deprivation state remedy 2 through its Government Claims Act. Barnett v. Centoni, 31 F.3d 813, 816–17 (9th Cir. 3 1994) (per curiam) (citing Cal. Gov. Code §§ 810–95). With respect to Plaintiff’s transfer 4 to another prison or between yards, prisoners have no due process right to placement in 5 any particular prison, to any security classification, or to any particular housing assignment. 6 Olim v. Wakinekona, 461 U.S. 238, 245 (1983); see also Meachum v. Fano, 427 U.S. 215, 7 225 (1976) (finding no liberty interest protected by the Due Process Clause is implicated 8 in a prison’s classification and transfer decisions). 9 Further, Plaintiff has not plausibly alleged he was deprived of a protected liberty 10 interest with respect to his thirty-day stay in the restricted housing unit after he was charged 11 with “illicit criminal activities on E Facility,” or his brief stays there at other times, where 12 he alleges he was temporarily deprived of warmth, food, water, clothes and soap. To 13 determine whether an atypical and significant hardship has occurred by confinement in 14 segregated housing, courts look to the conditions of confinement, the duration of the stay, 15 and whether the sanction will affect the duration of the prisoner’s sentence. See Keenan v. 16 Hall, 83 F.3d 1083, 1088–89 (9th Cir. 1996). Ultimately, the allegations regarding the 17 conditions in restricted housing unit and the length of his stays there fail to support a due 18 process violation. See Sandin, 515 U.S. at 487 (holding that an inmate placed in 19 disciplinary segregation in a secured housing unit for 30 days had no cognizable due 20 process claim because he had no liberty interest in being free from such confinement); see 21 also May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997) (holding that convicted inmate was 22 not denied due process by placement in disciplinary housing unit pending a disciplinary 23 hearing “because he has no liberty interest in freedom from state action taken within the 24 sentence imposed . . . and the Ninth Circuit explicitly has found that administrative 25 segregation falls within the terms of confinement ordinarily contemplated by a sentence.”) 26 (citation and internal quote marks omitted); see also Anderson v. County of Kern, 45 F.3d 27 1310, 1312–13 (9th Cir. 1995) (holding that short term or temporary deprivations of basic 28 needs such as food, clothing, shelter and sanitation do not plausibly allege a constitutional 1 violation). 2 Accordingly, Plaintiff’s due process allegation is DISMISSED WITHOUT 3 PREJUDICE pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim. 4 B. Eighth Amendment 5 Plaintiff claims Defendants violated his Eighth Amendment right to be free from 6 “cruel and unusual punishment arising from being forced to go through disciplinary 7 proceedings which caused him to go through housing in restricted housing twice.” (ECF 8 No. 8 at 4.) “[A] prison official violates the Eighth Amendment only when two 9 requirements are met. First, the deprivation alleged must be, objectively, ‘sufficiently 10 serious.’” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 11 U.S. 294, 298 (1991)). “The second requirement follows from the principle that ‘only the 12 unnecessary and wanton infliction of pain implicates the Eighth Amendment,’” and 13 requires that “a prison official must have a ‘sufficiently culpable state of mind,’” that is, 14 “one of ‘deliberate indifference’ to inmate health or safety.” Id. (quoting Wilson, 501 U.S. 15 at 297, 302–03). The prison official must “know[] of and disregard[] an excessive risk to 16 inmate health or safety; the official must both be aware of facts from which the inference 17 could be drawn that a substantial risk of serious harm exists, and he must also draw the 18 inference.” Farmer, 511 U.S. at 837. 19 Only those deprivations denying the minimal civilized measure of life’s necessities 20 are sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. 21 McMillian, 503 U.S. 1, 9 (1992). Here, Plaintiff alleges only temporary deprivation of 22 warmth, sanitation, food and water during his brief stays in the restricted housing unit. 23 Short term or temporary deprivations of food, clothing, shelter and sanitation do not 24 plausibly allege constitutional violations. Anderson, 45 F.3d at 1312–13. Plaintiff also 25 fails to plausibly allege any Defendant was aware of facts from which an inference could 26 be drawn, or drew an inference, that the conditions in the segregated housing unit or on the 27 yard posed an excessive risk to his health or safety and disregarded that risk. Rather, 28 Plaintiff indicates that he refused to tell Defendants why he was afraid to return to D yard 1 but instead falsely claimed to be a spice dealer, and only later provided details when filing 2 a grievance, which was granted and the charge dismissed. (See FAC at 4–5, 37–38.) 3 Further, there are no allegations that any Defendant was aware Plaintiff was in danger of 4 assault by another inmate and “disregard[ed] that risk by failing to take reasonable 5 measures to abate it.” Farmer, 511 U.S. at 847. 6 Accordingly, Plaintiff’s Eighth Amendment claim is DISMISSED WITHOUT 7 PREJUDICE pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim. 8 C. Retaliation Claim 9 Finally, Plaintiff alleges he was retaliated against when he was charged with a 10 disciplinary infraction when Rodriguez and San Miguel coerced him into falsely admitting 11 to being a spice dealer in order to avoid being returned to D Facility where he feared for 12 his life, which resulted in his placement in the restricted housing unit and a temporary 13 transfer. (FAC at 4–5.) He also seems to allege that in retaliation for telling the Warden 14 that Amador was harassing him, he was charged with “illicit criminal activities” on E 15 Facility, that Amador and Meza strip-searched him and destroyed his property, and that 16 Lewis and Perez “tore [his] property up.” (Id. at 7–11.) 17 “Within the prison context, a viable claim of First Amendment retaliation entails 18 five basic elements: (1) An assertion that a state actor took some adverse action against an 19 inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled 20 the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably 21 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567–68 (2005) 22 (footnote omitted). A prisoner must also allege a retaliatory motive, that is, a causal 23 connection between the adverse action and protected conduct. Watison, 668 F.3d at 1114. 24 Plaintiff has plausibly alleged an adverse action was taken against him. See Hines 25 v. Gomez, 108 F.3d 265, 268–69 (9th Cir. 1997) (disciplinary charge may constitute 26 adverse action); Rhodes, 408 F.3d at 568 (confiscation of property and initiation of a prison 27 transfer may constitute adverse action). Plaintiff has not, however, set forth facts which 28 plausibly allege any Defendant acted with a retaliatory motive. See Rhodes, 408 F.3d at 1 567 (stating a plaintiff must allege adverse action was “because of” his protected conduct). 2 Retaliation cannot be established simply by showing adverse action took place after 3 protected activity; there must be a nexus between the two. Huskey v. City of San Jose, 204 4 F.3d 893, 899 (9th Cir. 2000). Timing may be considered circumstantial evidence of 5 retaliatory intent, but “timing alone is insufficient” to support an inference that prison 6 officials took an adverse action against a prisoner in retaliation because of a prisoner’s 7 participation in protected conduct. Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995). 8 Plaintiff does not plausibly allege that the decision to file the first disciplinary action 9 after he admitted to being a spice dealer to avoid returning to D Facility was based on 10 anything other than his admission to being a spice dealer. To the extent he claims it was 11 in retaliation for his refusal to explain why he feared returning to D Facility—that is, 12 refusing to give information about the assault he witnessed—Plaintiff indicates that he later 13 provided that information in his grievance which resulted in the charge being dismissed. 14 Thus, there is no plausible allegation that the first disciplinary proceeding was retaliatory. 15 As to the events on E Facility, Plaintiff alleges Amador “said she would lock [him] 16 up whenever she felt [he] was a threat,” Lewis “was told by Amador to put [him] on his hit 17 list,” Amador and Meza strip-searched him and destroyed his property, and Lewis and 18 Perez destroyed his property and placed him in the restricted housing unit charged with 19 “illicit criminal activities on E Facility,” all apparently because they thought Plaintiff was 20 responsible for recent overdoses because he was suspected of selling spice on E Facility. 21 (FAC at 9–13.) Plaintiff does not identify what “illicit criminal activity” he was charged 22 with or the basis for that charge, only that it was dismissed as unsubstantiated. (ECF No. 23 8-2 at 5.) Moreover, he has not alleged Defendants were acting from a retaliatory motive 24 in suspecting he was dealing spice on Facility E, considering there are no allegations they 25 knew he was not a spice dealer, were aware that he had repudiated his confession to dealing 26 spice on Facility D, or were required to accept his repudiation. Although Plaintiff alleges 27 that he told the Warden, in front of Amador, “all she sent [him] through,” and begged 28 Amador to stop harassing him and drop the disciplinary charge, (see FAC at 70), it is 1 unclear what harassment Plaintiff refers to or what Amador put him through at the time he 2 spoke to the Warden. To the extent Plaintiff alleges he was on a “shit list” because 3 Defendants wanted him off E Facility and transferred back to D Facility due to a suspicion 4 he was a spice dealer, the First Amended Complaint lacks specific factual allegations 5 plausibly alleging any Defendant took any action with a retaliatory motive, as opposed to 6 acting pursuant to a legitimate suspicion Plaintiff was engaged in “illicit criminal activity” 7 on E Facility. The First Amended Complaint is also unclear as to what actions were taken 8 by which Defendant, such as who destroyed Plaintiff’s property or delayed his receiving it 9 and who initiated the disciplinary action on E Facility and why, as well as the basis of why 10 Plaintiff claims those actions were retaliatory.1 11 Accordingly, Plaintiff’s retaliation claim is DISMISSED WITHOUT 12 PREJUDICE pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim. 13 D. Leave to Amend 14 In light of his pro se status, the Court grants Plaintiff a final opportunity to amend. 15 See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not 16 dismiss a pro se complaint without leave to amend unless ‘it is absolutely clear that the 17 deficiencies of the complaint could not be cured by amendment.’”) (quoting Akhtar v Mesa, 18 698 F.3d 1202, 1212 (9th Cir. 2012)). 19 CONCLUSION 20 In light of the foregoing, the Court DISMISSES WITHOUT PREJUDICE this 21 civil action based on Plaintiff’s failure to state a claim upon which Section 1983 relief can 22 be granted pursuant to 28 U.S.C. § 1915A(b)(1). Plaintiff MAY FILE a Second Amended 23 Complaint within forty-five (45) days from the date of this Order. 24 25 1 If Plaintiff claims that his reporting to the Warden that Amador was harassing him was the 26 protected activity he engaged in which caused Amador, Lewis, or Meza to search him, destroy his property, and charge him with a disciplinary infraction on E Facility, he must set forth factual allegations 27 connecting his protected activity to their actions. Mere speculation of retaliatory motive is insufficient to give rise to a claim for relief. Wood v. Yordy, 753 F.3d 899, 904 (9th Cir. 2014) (“[M]ere speculation that 28 l Plaintiff's Second Amended Complaint must be complete by itself and any 2 Defendants not named and any claims not re-alleged in the Second Amended Complaint 3 || will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard 4 Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading 5 || supersedes the original.”); Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) 6 || (noting that claims dismissed with leave to amend which are not re-alleged in an amended 7 pleading may be “considered waived if not repled.”’) If Plaintiff fails to amend, the Court 8 || will dismiss this action for failure to state a claim and failure to prosecute. See Lira v. 9 || Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of 10 opportunity to fix his complaint, a district court may convert the dismissal of the 11 |}complaint into dismissal of the entire action.”’) 12 IT IS SO ORDERED. 13 Dated: June 3, 2026 —— 14 [ OSD (2 re 15 Honorable Todd W. Robinson United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 -12-