(PC) Jace v. Lirones

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL JACE, Case No.: 1:22-cv-00419-AWI-CDB (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS CERTAIN CLAIMS AND 13 v. DEFENDANTS

14 MARGARET LIRONES, et al., (Doc. 1)

15 Defendants. 16 17 Plaintiff Michael Jace is proceeding pro se and in forma pauperis in this civil rights action 18 pursuant to 42 U.S.C. § 1983. 19 I. SCREENING REQUIREMENT 20 The Court is required to screen complaints brought by prisoners seeking relief against a 21 governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 22 The Court must dismiss a complaint or portion thereof if the complaint is frivolous or malicious, 23 fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant 24 who is immune from such relief. 28 U.S.C. § 1915A(b). The Court should dismiss a complaint if 25 it lacks a cognizable legal theory or fails to allege sufficient facts to support a cognizable legal 26 theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 27 // // 1 II. PLEADING REQUIREMENTS 2 A. Federal Rule of Civil Procedure 8(a) 3 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 4 exceptions.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002). A complaint must contain 5 “a short and plain statement of the claims showing that the pleader is entitled to relief.” Fed. R. 6 Civ. P. 8(a)(2). “Such a statement must simply give the defendant fair notice of what the 7 plaintiff’s claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512 (internal 8 quotation marks & citation omitted). 9 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 10 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 11 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must 12 set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” 13 Id. (quoting Twombly, 550 U.S. at 570). Factual allegations are accepted as true, but legal 14 conclusions are not. Id. (citing Twombly, 550 U.S. at 555). 15 The Court construes pleadings of pro se prisoners liberally and affords them the benefit of 16 any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). However, “the 17 liberal pleading standard . . . applies only to a plaintiff’s factual allegations,” not his legal 18 theories. Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). Furthermore, “a liberal interpretation 19 of a civil rights complaint may not supply essential elements of the claim that were not initially 20 pled,” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (internal 21 quotation marks & citation omitted), and courts “are not required to indulge unwarranted 22 inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation 23 marks & citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not 24 sufficient to state a cognizable claim, and “facts that are merely consistent with a defendant’s 25 liability” fall short. Iqbal, 556 U.S. at 678 (internal quotation marks & citation omitted). 26 B. Linkage and Causation 27 Section 1983 provides a cause of action for the violation of constitutional or other federal 1 section 1983, a plaintiff must show a causal connection or link between the actions of the 2 defendants and the deprivation alleged to have been suffered by the plaintiff. See Rizzo v. Goode, 3 423 U.S. 362, 373-75 (1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the 4 deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative 5 act, participates in another’s affirmative acts, or omits to perform an act which he is legal required 6 to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 7 743 (9th Cir. 1978) (citation omitted). 8 III. DISCUSSION 9 A. Plaintiff’s Complaint 10 Plaintiff’s complaint names as Defendants Warden Ken Clark, Senior Librarian Margaret 11 Lirones, and Captain A. Peterson, all employed at Corcoran State Prison. (Doc. 1 at 1-2.) 12 Plaintiff asserts access to court claims, in violation of the First and Fourteenth 13 Amendments, against all Defendants. (Doc. 1 at 3-17.) Plaintiff seeks “a declaration that the acts 14 and omissions described herein violate his rights,” a preliminary and permanent injunction 15 ordering Defendants “to cease their obstruction of” his fundamental right to access the courts, 16 “nominal compensatory damages” and “nominal damages and punitive damages in the amount of 17 $25,000” against each Defendant “jointly and severally,” costs of suit, and any additional relief 18 the court deems proper and equitable “including an extension of deadline to allow plaintiff to 19 opportunity to file a timely appeal.” (Id. at 19.) 20 Plaintiff’s specific factual allegations will be summarized below in the discussion of each 21 claim where appropriate. 22 B. The Applicable Legal Standards 23 Prisoners retain the First Amendment right “to petition the government for a redress of [] 24 grievances,” which includes the specific right “to meaningful access to the courts[.]” Silva v. Di 25 Vittorio, 658 F.3d 1090, 1101-02 (9th Cir. 2011) (citation omitted), abrogated on other grounds 26 as stated in Richey v. Dahne, 807 F.3d 1202, 1209 n.6 (9th Cir. 2015). The constitutional right of 27 access to the courts generally requires prison officials to ensure that prisoners have the “capability 1 Lewis v. Casey, 518 U.S. 343, 356 (1996). To that end, depending on the circumstances, prison 2 officials may be required affirmatively to “help prisoners exercise their rights” (e.g., provide 3 reasonable access to “adequate law libraries or adequate assistance from persons trained in the 4 law”), or simply to refrain from “active interference” in prisoner litigation. Silva, 658 F.3d at 5 1102 (citation omitted); see, e.g., Bounds v. Smith, 430 U.S. 817, 828 (1977) (holding “that the 6 fundamental constitutional right of access to the courts requires prison authorities to assist 7 inmates in the preparation and filing of meaningful legal papers by providing prisoners with 8 adequate law libraries or adequate assistance from persons trained in the law”) (footnote omitted), 9 overruled in part on other grounds, Lewis, 518 U.S. at 354. Prison officials, however, are not 10 required to ensure access beyond “[t]he tools ... inmates need in order to attack their sentences, 11 directly or collaterally, and in order to challenge the conditions of their confinement.” Lewis, 518 12 U.S. at 355 (“Bounds does not guarantee inmates the wherewithal to transform themselves into 13 litigating engines capable of filing everything from shareholder derivative actions to slip-and-fall 14 claims.... Impairment of [such] other litigating capacity is simply one of the incidental (and 15 perfectly constitutional) consequences of conviction and incarceration.”). 16 To state a viable denial of access claim, a prisoner must plausibly show that some official 17 misconduct (e.g., alleged inadequacies in the jail’s library facilities or legal assistance program) 18 caused “actual injury” — that is, that it frustrated or is impeding a plaintiff’s attempt to bring a 19 nonfrivolous legal claim. Lewis, 518 U.S. at 348-49; Nev. Dep't of Corr. v. Greene, 648 F.3d 20 1014, 1018 (9th Cir. 2011) (citing Lewis, 518 U.S. at 349) (“‘Actual injury’ means ‘actual 21 prejudice with respect to contemplated or existing litigation’”), cert. denied, 566 U.S. 911 (2012). 22 The plaintiff's complaint must describe the alleged underlying claim, whether anticipated or lost, 23 and show that it is “nonfrivolous” and “arguable.” See Christopher v. Harbury, 536 U.S. 403, 415 24 (2002). 25 C. Claim I: Access to Court’s Claim Against Defendant Lirones 26 Plaintiff asserts that Defendant Lirones, Senior Librarian at CSP, violated his First and 27 Fourteenth Amendment rights by obstructing his ability to access the courts. (Doc. 1 at 4.) 1 Plaintiff contends that on February 18, 2021, he submitted a Preferred Legal User (PLU) 2 request that was denied. (Doc. 1 at 4.) He states that with a PLU designation he would have been 3 “granted access to the law library while Corcoran Prison operated under a modified program due 4 to COVID-19” as only PLUs were permitted law library access at that time. (Id.) Plaintiff asserts 5 the modified program was in effect from February 11, 2021 to March 16, 2021. (Id.) 6 Plaintiff further contends that because the modified program was in effect following his 7 receipt of “the final judgment for case number 2:19-cv-03020-ODW-KES,” where judgment was 8 entered February 5, 2021, he “was denied access to the law library.” (Doc. 1 at 4.) Plaintiff 9 contends that had Lirones “properly processed the PLU and notified” him of the denial within 10 seven days, he would have “had the opportunity to resubmit the PLU with the additional 11 information requested.” (Id. at 5.) However, Plaintiff “did not receive the improper PLU denial 12 until March 3, 2021.” (Id.) Plaintiff alleges it was not possible at that point to resubmit the PLU, 13 “to then research to file appropriate documents prior to the deadline of either March 5 or March 8, 14 2021 as stated on pg 2, line 6-11 of the federal district court judgment entered on August 5, 15 202[0],1 when defendant Lirones made no attempt to adhere to CDCR statues [sic] regarding 16 time.” (Id.) 17 Next, Plaintiff contends he made a second PLU request on March 17, 2021; it too was 18 “improperly denied.” (Doc. 1 at 5.) Again he did not receive the denial in a timely manner 19 pursuant to “CDCR regulations” because he received it on May 7, 2021, or “fifty-one days after 20 the PLU was submitted.” (Id.) Plaintiff states “[t]his PLU denial was also improper being too 21 restrictive.” (Id.) Plaintiff contends “Defendant Lirones did not allow for litigation available to 22 plaintiff as was stated by the district court in their judgment entered August 5, 2021.” (Id.) 23 Plaintiff explains the “August 5, 202[0]” judgment states Plaintiff “had litigation available 24 to him until April 6, 2021, on pg 2, line 15-20.” (Doc. 1 at 6.) He contends “contrary to the court, 25 defendant Lirones erroneously uses March 8, 2021, as reason to deny [his] March 17, 2021 PLU 26

27 1 Because Plaintiff’s references to an “August 20, 2021” order cannot allow for a timely response deadline in March of 2021—in other words, before the judgment or order even issued—it is evident Plaintiff meant to refer to a date in August 2020 rather than August 2021. 1 request.” (Id.) Plaintiff further alleges Lirones’s actions are “not isolated incidents” and that there 2 “is a pattern of callous indifference.” (Id.) Plaintiff contends (1) a PLU request submitted May 27, 3 2021 while he was housed in ad-seg was returned 26 days later on June 22, 2021; (2) a PLU 4 request submitted May 28, 2021, after his release from ad-seg to “Yard 3B,” was returned 42 days 5 later on July 8, 2021; (3) a PLU request dated August 16, 2021 was not returned until September 6 7, 2021, and “is the only time Lirones admits she did not respond to the PLU request per Title 15 7 3312(b)(4).” (Id.) Plaintiff asserts that “admission only occurred” after he filed a complaint with 8 the Office of the Inspector General (OIG) “that launched an investigation.” (Id.) Plaintiff 9 contends the OIG “does not have the authority to perform investigations of CDCR staff 10 misconduct.” (Id. at 6-7.) Plaintiff takes specific issue with Defendant Lirones responses, 11 presumably during the OIG investigation, concerning an August 16, 2021 request, wherein 12 Lirones claimed she did not see “the photocopy until Friday, October 8” because it was “printed 13 on white paper” and “became mixed with other mail” because Lirones’s signature appeared on 14 the form on September 7, 2021. (Id. at 7.) Plaintiff contends Lirones did not provide a valid 15 reason for her “dereliction of duty.” (Id.) He contends Lirones’s “repeated violations are also 16 violation of Government Codes 19572 and 19990.” (Id.) 17 Finally, Plaintiff contends he has no plain, adequate or complete remedy at law to redress 18 these wrongs. (Doc. 1 at 7.) He asserts he “has been and will continue to be irreparably injured … 19 unless the court grants the declaratory and injunctive relief” he seeks. (Id.) 20 Liberally construing the complaint, Plaintiff has plausibly alleged that Lirones improperly 21 denied his various PLU requests that would have permitted him access to the law library during a 22 modified program causing Plaintiff to miss a deadline in another case. However, Plaintiff must 23 also show that his underlying anticipated or lost claim is “nonfrivolous” and “arguable.” This he 24 has not done. Plaintiff does not sufficiently explain what he means by “litigation available” to 25 him in case number 2:19-cv-03020-ODW-KES. 26 1. Judicial Notice of the Underlying Action 27 In further consideration of Plaintiff’s claim, this Court takes judicial notice of Jace v. 1 the Central District of California. See Harris v. County of Orange, 682 F.3d 1126, 1131-32 (9th 2 Cir. 2012) (court may take judicial notice of “documents on file in federal or state courts”). 3 A review of that action’s docket reveals Plaintiff filed a petition for writ of habeas corpus 4 on April 18, 2019. (19-3020 Docket Entry No. 1.) In a Report and Recommendation issued 5 August 5, 2020, Magistrate Judge Karen E. Scott recommended dismissal of the action with 6 prejudice, finding no ineffective assistance of counsel on any basis asserted. (19-3020 Docket 7 Entry No. 51.) The recommendations included notice that a party had the right to “timely file 8 Objections as provided in the Federal Rules of Civil Procedure and the instructions attached to” 9 the Report. (Id. at 36.) In the Notice of Filing of Magistrate Judge’s Report and Recommendation, 10 served that same date, Plaintiff was advised he could file objections “not later than August 28, 11 2020 .” (19-3020 Docket Entry No. 50) (emphasis in original.) The notice further advised that a 12 failure to obey “within the time limit specific shall be deemed a consent to any proposed findings 13 of fact” and that “upon lapse of the time for filing Objections, the case will be submitted to the 14 District Judge for disposition.” (Id.) A review of the docket reveals Plaintiff did not file 15 objections to the Report and Recommendation. On February 5, 2021, District Judge Otis D. 16 Wright II issued an Order Accepting Report and Recommendation of U.S. Magistrate Judge. (19- 17 3020 Docket Entry No. 52.) Judgment was entered denying the petition for writ of habeas corpus 18 and dismissing the action with prejudice. (19-3020 Docket Entry No. 53.) That same date, Judge 19 Wright also issued an Order Denying Certificate of Appealability. (19-3020 Docket Entry No. 20 54.) 21 On March 25, 2021, Plaintiff filed a document dated March 17, 2021—entered on the 22 docket as a motion for reconsideration—wherein he alleges he mailed objections to the 23 magistrate’s report and recommendation, alleging numerous violations of his Sixth and 24 Fourteenth Amendment rights were violated “as documented in the Objection to the R&R.” (19- 25 3020 Docket Entry No. 55.) Plaintiff stated his objections were “filed in a timely manner” and 26 asked Judge Wright to vacate the Report and Recommendation, alleging it had “been entered in 27 error.” (Id.) On April 22, 2021, Judge Wright issued an Order Denying Motion for Relief from 1 On June 22, 2021, Plaintiff filed a document titled “Request To Leave To File A Late 2 Appeal (Good Cause Appearing).” (19-3020 Docket Entry No. 57.) In that request, Plaintiff 3 alleges (1) he was denied physical access to the law library, preventing him from “doing any 4 research in order to respond to the Magistrate Judge’s Report and Recommendation that was 5 entered into record due to error,” (2) that the prison was tampering with his legal mail, and (3) 6 that the “institutional mail is unreliable and there is no accountability, rendering the page system 7 useless.” (Id.) On August 6, 2021, Judge Wright issued an Order Denying Petitioner’s Request for 8 Leave to File a Late Appeal. (19-3020 Docket Entry No. 58.) 9 Also on August 6, 2021, Plaintiff filed a Notice of Appeal with the Ninth Circuit Court of 10 Appeals. (19-3020 Docket Entry No. 59.) Ultimately, on June 24, 2022, the Ninth Circuit issued 11 its Order denying the request for certificate of appealability because Plaintiff had “not shown 12 ‘that (1) jurists of reason would find it debatable whether the district court abused its discretion in 13 denying the Rule 60(b) motion and, (2) jurists of reason would find it debatable whether the 14 underlying section [2254 petition] states a valid claim of the denial of a constitutional right.’” 15 (19-3020 Docket Entry No. 70.) 16 2. Permitting Amendment Would Be Futile 17 As noted above, to state a cognizable access to courts claim, Plaintiff must also show that 18 his underlying anticipated or lost claim is “nonfrivolous” and “arguable.” Typically, the Court 19 would permit Plaintiff leave to file a first amended complaint to cure that deficiency. Here, 20 however, amendment would be futile and leave to amend should not be granted. “A district court 21 may deny leave to amend when amendment would be futile.” Hartmann v. CDCR, 707 F.3d 22 1114, 1130 (9th Cir. 2013); accord Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (“Courts 23 are not required to grant leave to amend if a complaint lacks merit entirely”). This is so because 24 the Ninth Circuit has already ruled that Plaintiff’s habeas corpus petition was properly denied by 25 the Central District. Hence, any underlying anticipated or lost claim cannot be said to be 26 nonfrivolous or arguable. (19-3020 Docket Entry No. 70 [“jurists of reason would find it 27 debatable whether the underlying section [2254 petition] states a valid claim of the denial of a 1 courts by the actions of Defendant Lirones, he cannot show that those actions resulted in his 2 losing an arguable claim. The claim was effectively heard and denied on June 24, 2022 by the 3 Ninth Circuit. 4 In sum, Plaintiff has failed to state a cognizable access to courts claim against Lirones and 5 amendment would be futile. His claim against Defendant Lirones should be dismissed. 6 D. Claims II & III: Access to Court’s Claims Against Defendants Clark & Peterson 7 8 To the extent Plaintiff asserts the same access to courts claims against Defendants Clark 9 and Peterson, he does not state cognizable claims. (Doc. 1 at 8, 12 [“Right to access the Court 10 guaranteed by the First and Fourteenth Amendment”] & 12 [“To engage in protected conduct as 11 guaranteed by the First Amendment”].) The same facts concerning Defendant Lirones are 12 asserted in these claims, in addition to references to related grievances filed by Plaintiff (see id. at 13 9-11) and inquiries into those grievances (see id. at 13-17). 14 For the same reasons explained above, specifically in section III., C., 2., Plaintiff has 15 failed to state cognizable access to courts claims against Defendants Clark and Peterson and 16 granting him leave to amend would be futile. Hartmann, 707 F.3d at 1130. His claims should be 17 dismissed. 18 Further, Plaintiff is advised prisoners do not have “a separate constitutional entitlement to 19 a specific prison grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) 20 (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)). Prison officials are not required under 21 federal law to process inmate grievances in any specific way. Jordan v. Asuncion, No. CV 17- 22 1283 PSG (SS), 2018 WL 2106464, at *3 (C.D. Cal. May 7, 2018) (“[A] prisoner [does not] have 23 a constitutional right to any particular grievance outcome”). Thus, Plaintiff's allegations against 24 Defendant Clark concerning the manner in which his grievances were handled, investigated, and 25 resolved (see Doc. 1 at 9-11) does not state a claim. Ramirez, 334 F.3d at 860; see also, e.g., 26 Towner v. Knowles, No. CIV-S-08-2823 LKK EFB P, 2009 WL 4281999, at *2 (E.D. Cal. Nov. 27 20, 2009) (plaintiff failed to state claims that would indicate a deprivation of his federal rights 1 No. 1:09-cv-00468-OWW-YNP PC, 2009 WL 3789597, at *6 (E.D. Cal. Nov. 10, 2009) 2 (“Plaintiff has no protected liberty interest in the vindication of his administrative claims”). 3 Finally, because Plaintiff cannot state a claim on this basis, amendment would be futile. 4 Hartmann, 707 F.3d at 1130. 5 In sum, Plaintiff cannot state cognizable access to courts claims against Defendants Clark 6 and Peterson. Hence, his claims should be dismissed. 7 E. Claim III: Retaliation Claim Against Defendant Peterson 8 To the extent Plaintiff’s third claim for relief was intended to assert a claim of retaliation 9 (Doc. 1 at 12 [“To engage in protected conduct as guaranteed by the First Amendment”]) against 10 Defendant Peterson, rather than one involving access to courts, that claim is considered below. 11 Prisoners have a First Amendment right to file prison grievances and retaliation against 12 prisoners for exercising this right is a constitutional violation. Rhodes v. Robinson, 408 F.3d 559, 13 566 (9th Cir. 2005); Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003). A claim for First 14 Amendment retaliation in the prison context requires: (1) that a state actor took some adverse 15 action against the plaintiff (2) because of (3) the plaintiff’s protected conduct, and that such 16 action (4) chilled the plaintiff’s exercise of his First Amendment rights, and (5) “the action did 17 not reasonably advance a legitimate correctional goal.” Rhodes, 408 F.3d at 567-68; Brodheim v. 18 Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). To prove the second element, retaliatory motive, 19 plaintiff must show that his protected activities were a “substantial” or “motivating” factor behind 20 the defendant’s challenged conduct. Brodheim, 584 F.3d at 1269, 1271. Plaintiff must provide 21 direct or circumstantial evidence of defendant’s alleged retaliatory motive; mere speculation is 22 not sufficient. See McCollum v. CDCR, 647 F.3d 870, 882–83 (9th Cir. 2011); accord, Wood v. 23 Yordy, 753 F.3d 899, 905 (9th Cir. 2014). In addition to demonstrating defendant’s knowledge of 24 plaintiff’s protected conduct, circumstantial evidence of motive may include: (1) proximity in 25 time between the protected conduct and the alleged retaliation; (2) defendant’s expressed 26 opposition to the protected conduct; and (3) other evidence showing that defendant’s reasons for 27 the challenged action were false or pretextual. McCollum, 647 F.3d at 882. 1 Plaintiff contends he filed a grievance against Defendants Clark, Peterson and Lirones on 2 March 23, 2021, concerning “their actions that obstructed” his access to the court. (Doc. 1 at 13.) 3 Plaintiff asserts that prior to receiving the decision dated May 6, 2021 (received on June 16, 4 2021) and before he could appeal, “Sgt. Cid” called him to the program office on May 15 or 16 to 5 discuss the grievance. (Id. at 13, 15.) Cid handed Plaintiff a “Program Status Report for April 29, 6 2021” and asked Plaintiff “if that was what he requested” in the grievance. (Id. at 13.) Plaintiff 7 informed Cid he “had requested PSRs for February through April” and Cid indicated an intent to 8 “check and then get back to” Plaintiff. (Id. at 14.) Then, on May 17 or 18, Defendant Peterson 9 questioned Plaintiff, in the dayroom, about the same grievance. (Id.) Peterson wanted to know if 10 what Cid had provided to Plaintiff a day or two prior would “suffice.” (Id.) Plaintiff informed 11 Peterson it would not. (Id.) Plaintiff contends Peterson informed him that he (Peterson) “had read 12 all of” Plaintiff’s grievances. (Id.) Plaintiff states he “was not sure how to respond” and was 13 “confused as to why defendant Peterson wanted to know if plaintiff believed he had a realistic 14 chance of overturning his case.” (Id.) When Plaintiff informed Peterson that he believed that he 15 did have a realistic chance of having his case overturned, Peterson “abruptly wished” him good 16 luck and told Plaintiff to come to his office “the next available yard.” (Id.) 17 On May 20, 2021, rather than “being provided the PSRs for February through April that 18 defendant Peterson had promised,” Plaintiff “was rolled-up that morning before yard release, and 19 sent to the hole without being told why.” (Id. at 14-15.) Plaintiff contends the delay of his receipt 20 of the grievance decision—where the grievance was decided May 16 and Plaintiff did not receive 21 it until June 19—was “an attempt to prevent” Plaintiff from appealing the decision. (Id. at 15.) 22 Plaintiff contends that placing him in ad-seg “did not advance a legitimate correctional goal” and 23 “’no criminal activity nor rules violation report was generated’” following that placement. (Id.) 24 Plaintiff further asserts that during his four years of incarceration, he has not incurred a single 25 rules violation report, “other than a 128” for refusing a dental appointment and he does not have 26 any enemies. (Id.) Nor does Plaintiff “‘have a history of in-cell predatory or assaultive behavior 27 towards inmates,’” undercutting “the baseless accusation that plaintiff was ‘extorting inmates for 1 and fabricated enemies per confidential memorandum dated 05/21/21 to Yard 3B, where it was 2 even more difficult to gain access to law library than it had been on Yard 4B where it had been 3 very difficult.” (Id. at 16.) Plaintiff contends had he “not engaged in a hunger-strike” due to the 4 false accusations, he would have remained in ad-seg “much longer or been transferred to another 5 prison,” resulting in a separation from his “legal material for additional weeks, if not months, 6 heightening the possibility of legal material being lost and never returned, ending his litigation.” 7 Liberally construing the complaint, Plaintiff has plausibly alleged that Defendant Peterson 8 took an adverse action by placing him in ad-seg because Plaintiff filed a grievance against 9 Defendants Lirones, Clark and Peterson concerning Plaintiff’s access to the law library, and that 10 Peterson’s action chilled the excise of Plaintiff’s First Amendment rights and did not advance a 11 legitimate correctional goal. Rhodes, 408 F.3d at 567-68. Therefore, the undersigned recommends 12 this action proceed as to Plaintiff’s retaliation claim against Defendant Peterson. 13 14 15 16 17 18 19 20 21 22 Remainder of This Page Intentionally Left Blank 23

24 25 26 27 1 IV. CONCLUSION AND RECOMMENDATION 2 Accordingly, for the reasons set forth above, the Court RECOMMENDS that: 3 1. Defendants Ken Clark and Margaret Lirones be DISMISSED from this action; and, 4 2. This action PROCEED only on Plaintiffs claim alleging a violation of his First 5 Amendment rights against Defendant Peterson for retaliation; all other claims and 6 defendants should be dismissed. 7 These Findings and Recommendations will be submitted to the United States District 8 | Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(). Within 14 days of the date of 9 | service of these Findings and Recommendations, a party may file written objections with the 10 | Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and 11 | Recommendations.” Failure to file objections within the specified time may result in waiver of 12 | rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 13 | Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 14 | IT IS SO ORDERED. | Dated: _March 16, 2023 | br Pr 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 13