Scally v. Flores

District Court, S.D. California·Decided May 12, 2022·No. 3:22-cv-00182·Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TONY EUGENE SCALLY, Case No.: 22cv0182-DMS (MDD) CDCR #G-67776, 12

Plaintiff, 13 ORDER SCREENING FIRST vs. AMENDED COMPLAINT 14 PURSUANT TO 28 U.S.C. CALIFORNIA DEPARTMENT OF 15 §§ 1915(e)(2)(B) & 1915A(b) CORRECTIONS AND 16 REHABILITATION and CORRECTIONAL OFFICERS 17 A. FLORES and E. VEGA, 18 19 Defendants. 20 21 On February 7, 2022, Plaintiff Tony Eugene Scally, a state prisoner proceeding pro 22 se, filed a Complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1.) He claimed violations 23 of his Fifth, Eighth and Fourteenth Amendment rights to due process, equal protection and 24 to be free from cruel and unusual punishment, as well as negligence under state law, based 25 on allegations he was found guilty of a prison disciplinary infraction for a false charge of 26 possession of a deadly weapon which resulted in loss of custody credits, an administrative 27 segregation placement, and referral for criminal prosecution carrying a possible life 28 sentence. (Id. at 3-5.) 1 On March 30, 2022, the Court granted Plaintiff leave to proceed in forma pauperis 2 and dismissed the Complaint for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) 3 & 1915A(b). (ECF No. 6.) The Court found the Complaint did not state a § 1983 claim 4 upon which relief could be granted because there were no allegations of unconstitutional 5 conditions of confinement or that Plaintiff received unequal treatment or was denied any 6 procedural protections in his disciplinary proceeding, and because his failure to allege his 7 loss of custody credits was invalidated required dismissal of any claims which would 8 necessarily result in his early release from custody. (Id. at 5-10.) The Court declined to 9 exercise supplemental jurisdiction over the state law negligence claim, informed Plaintiff 10 of the pleading deficiencies of his claims, and granted leave to amend. (Id.) He filed a 11 First Amended Complaint (“FAC”) on April 18, 2022. (ECF No. 7.) 12 I. Screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 13 A. Standard of Review 14 Because Plaintiff is a prisoner and is proceeding in forma pauperis, the FAC requires 15 a pre-Answer screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). Under these 16 statutes, the Court must sua sponte dismiss a prisoner’s in forma pauperis complaint, or 17 any portion of it, which is frivolous, malicious, fails to state a claim, or seeks damages 18 from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 19 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 20 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of § 1915A is to 21 ensure that the targets of frivolous or malicious suits need not bear the expense of 22 responding.” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (internal quote 23 marks omitted). 24 “The standard for determining whether a plaintiff has failed to state a claim upon 25 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 26 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 27 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 28 2012) (noting that § 1915A screening “incorporates the familiar standard applied in the 1 context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”) Rule 2 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state 3 a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), 4 quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Threadbare recitals 5 of the elements of a cause of action, supported by mere conclusory statements, do not 6 suffice.” Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible 7 claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on 8 its judicial experience and common sense.” Id. 9 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who, 10 acting under color of state law, violate federal constitutional or statutory rights.” 11 Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a 12 source of substantive rights, but merely provides a method for vindicating federal rights 13 elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation 14 marks omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation 15 of a right secured by the Constitution and laws of the United States, and (2) that the 16 deprivation was committed by a person acting under color of state law.” Tsao v. Desert 17 Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 18 B. Plaintiff’s Allegations 19 Plaintiff alleges that on October 5, 2020, Defendants Correctional Officers Flores 20 and Vega entered his cell and discovered an “altered razor,” a state-issued razor with a 21 bright orange handle added to it, which Plaintiff used to cut his hair. (ECF No. 7 at 4.) He 22 states that Vega had previously seen Plaintiff using the razor to cut his hair failed to inform 23 Flores of that fact, and that during the pandemic inmates have not been allowed to cut each 24 other’s hair and must cut their own hair. (Id.; ECF No. 7-1 at 8.) 25 Plaintiff states that he was given three state-issued razors after breakfast on October 26 5, 2020, and “once I got my hair trimmed down I broke the guard off the state issued razor 27 and reattached the blade to the razor handle to give myself a lineup. The razor kept moving 28 every time I attempted to line my hair, so I secured it with a piece of string to ensure that 1 it stayed in place.” (Id.) Plaintiff states he made no attempt to hide the razor and Vega 2 knew it was not intended to be used as a weapon because he saw him using it to cut his 3 hair. (Id.) He claims Flores failed to follow California Department of Corrections and 4 Rehabilitation (“CDCR”) policies, rules and regulations regarding possession of 5 contraband by falsely charging him with a Rules Violation Report (“RVR”) for possession 6 of a deadly weapon even though there was no evidence he tried to use the razor as a weapon. 7 (ECF No. 7 at 4.) He contends that without such evidence he could only be charged with 8 possession of contraband under CDCR regulations rather than possession of a deadly 9 weapon, and he would not have been referred for criminal prosecution in the Imperial 10 County Superior Court where he is facing a life sentence. (Id.; ECF No.

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TONY EUGENE SCALLY, Case No.: 22cv0182-DMS (MDD) CDCR #G-67776, 12

22 (ECF No. 7 at 3.) Plaintiff claims he was treated differently than other inmates and: 23 I was singled out by these two officers because of my race, my religion, and the proximity of my release date that they could extort me for information and 24 any refusal to cooperate would send me to ASU. C/o A. Fores and E. Vega 25 would never attempt to extort any Hispanic inmate for information because they know the repercussion that the southside gang members would initiate 26 for such actions. However Black inmates are threatened, extorted, bullied, 27 and retaliated against methodically by c/os at Calipatria prison. 28 (Id. at 7.) 1 Plaintiff claims Flores and Vega failed to investigate or gather evidence showing he 2 never intended to use the razor as a weapon and is currently seeking habeas relief to restore 3 the 360 days of custody credits he lost in connection to the October 5, 2020, RVR No. 4 7034784. (Id. at 3-4, 7-8.) Plaintiff states he received another RVR, No. 7114746, on 5 August 24, 2021, which also resulted in the loss of 360 days of custody credits, and that 6 the disciplinary hearing on that RVR has been postponed and has not yet taken place. (Id. 7 at 7; ECF No. 7-1 at 2, 4.) That second RVR was not referenced in the original Complaint 8 nor was the CDCR named as a Defendant. The CDCR is a Defendant in the FAC, with the 9 only allegation being: “The department took 360 days of credit without giving me a hearing 10 for RVR #7034784. It did not give me a chance to present a defense or offer evidence. 11 My due process was violated, and retaliation by CDCR.” (ECF No. 7 at 2.) 12 Plaintiff claims violations of his Fifth, Eighth and Fourteenth Amendment rights to 13 due process, equal protection, and to be free from racial and religious discrimination, 14 retaliation, and cruel and unusual punishment. (Id. at 3-5.) He seeks monetary damages 15 and an injunction preventing Defendants from retaliating against him or falsifying 16 documents against other inmates based on their race or religion. (Id. at 10.) 17 C. Analysis 18 1. Fourteenth Amendment Due Process Claim 19 Plaintiff first claims he was denied due process as protected by the Fifth and 20 Fourteenth Amendments.1 The Fourteenth Amendment provides that “[n]o state shall . . . 21 deprive any person of life, liberty, or property, without due process of law.” U.S. Const. 22 amend. XIV, § 1. “The requirements of procedural due process apply only to the 23 deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty 24

25 1 Because the allegations in the FAC involve state actors only, it fails to state a Fifth 26 Amendment claim. See Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir. 2001) (“The 27 Due Process Clause of the Fifth Amendment and the equal protection component thereof apply only to actions of the federal government - not to those of state or local 28 1 and property.” Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972). “To state a procedural 2 due process claim, [a plaintiff] must allege ‘(1) a liberty or property interest protected by 3 the Constitution; (2) a deprivation of the interest by the government; (and) (3) lack of 4 process.’” Wright v. Riveland, 219 F.3d 905, 913 (9th Cir. 2000), quoting Portman v. Cnty. 5 of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993). 6 A prisoner is entitled to certain enumerated due process protections when charged 7 with a disciplinary violation. Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003), 8 citing Wolff v. McDonnell, 418 U.S. 539, 564-571 (1974). “Such protections include the 9 rights to call witnesses, to present documentary evidence and to have a written statement 10 by the fact-finder as to the evidence relied upon and the reasons for the disciplinary action 11 taken.” Id. at 1077-78. However, those protections adhere only when the disciplinary 12 action implicates a protected liberty interest either by exceeding the sentence in “an 13 unexpected manner” or where an inmate is subject to restrictions that impose “atypical and 14 significant hardship on the inmate in relation to the ordinary incidents of prison life.” 15 Sandin v. Conner, 515 U.S. 472, 484 (1995). Where no such protected liberty interest is at 16 stake, the minimum requirements of due process apply, which require only that “the 17 findings of the prison disciplinary board (be) supported by some evidence in the record.” 18 Superintendent v. Hill, 472 U.S. 445, 454-55 (1985). In either case, if the loss of custody 19 credits arising from the disciplinary action necessarily affects the duration of Plaintiff’s 20 sentence the claim is barred by Heck v. Humphrey, 512 U.S. 477 (1994) and Edwards v. 21 Balisok, 520 U.S. 641 (1997).2 22 Plaintiff was informed in the Court’s previous dismissal order that the allegations he 23 was falsely charged with possession of a deadly weapon in violation of CDCR policies, 24

25 2 In Heck the Court held that where success on a prisoner’s § 1983 action would necessarily 26 impact the validity of a conviction or duration of a sentence the prisoner must first 27 invalidate the underlying conviction or sentence. 512 U.S. at 480-82. In Balisok the Court applied Heck’s favorable termination requirement to a prisoner’s § 1983 action alleging 28 1 rules and regulations, by itself, fails to state a 42 U.S.C. § 1983 due process claim because 2 “a prisoner does not have a constitutional right to be free from wrongfully issued 3 disciplinary reports.” Buckley v. Gomez, 36 F.Supp.2d 1216, 1222 (S.D. Cal. 1997), aff’d, 4 168 F.3d 498 (9th Cir. 1999); see also Ove v. Gwinn, 264 F.3d 817, 824 (9th Cir. 2001) 5 (holding that violations of prison rules and regulations, without more, do not support a 6 § 1983 claim). This is because the procedural protections available in disciplinary 7 proceedings adequately protect a prisoner’s federal constitutional right to due process. See 8 e.g. Gadsden v. Gehris, No. 20cv0470-WQH (DEB), 2020 WL 5748094, at *8 (S.D. Cal. 9 Sep. 25, 2020) (“The allegations of the filing of false disciplinary charges by itself does 10 not state a claim under 42 U.S.C. § 1983 because federal due process protections are 11 contained in the ensuing disciplinary proceedings themselves.”) 12 The Court notified Plaintiff that his original Complaint failed to state a due process 13 claim because it lacked any allegations regarding what if any procedural due process 14 protections Plaintiff received or failed to receive in connection to the October 5, 2020, 15 disciplinary charge which resulted in the loss of 360 days of custody credits and prevented 16 his immediate release from custody. (ECF No. 6 at 6.) Although Plaintiff indicates in the 17 FAC that he has also forfeited 360 days of custody credits in connection to an August 24, 18 2021, RVR despite the fact that the disciplinary hearing has been postponed and not taken 19 place, the FAC once again lacks any allegations regarding what if any procedural due 20 process protections Plaintiff received or failed to receive in connection to the October 5, 21 2020, RVR disciplinary hearing. Plaintiff attaches to the FAC a CDCR Legal Status 22 Summary indicating that effective October 5, 2020, and August 24, 2021, an 23 “Administrative Loss (pending Disciplinary)” of 360 days has been “Applied” with respect 24 to those two RVRs. (ECF No. 7-1 at 2.) Those documents indicate his current release date 25 is August 21, 2023, calculated as of January 25, 2022. (Id. at 3.) Plaintiff alleged in his 26 original Complaint that his original release date of February 26, 2022, had been changed 27 to August 21, 2023, due to the October 5, 2020, RVR. (ECF No. 1 at 4.) 28 / / / 1 Plaintiff continues to claim his due process rights were violated in connection to the 2 October 5, 2020, RVR based solely on his contention that Defendants Flores and Vega 3 falsely charged him with possession of a deadly weapon, but without any allegations 4 regarding whether and to what extent he received procedural due process protections. 5 Because the FAC once again fails to set forth any allegations regarding what procedural 6 protections, if any, Plaintiff received or was denied in relation to the October 5, 2020, RVR 7 which forms the basis of his due process claims against Defendants Flores and Vega, 8 Plaintiff has once again failed to state a due process claim against those Defendants. 9 The allegation in the FAC against Defendant CDCR that Plaintiff forfeited 360 days 10 of custody credits without a hearing in relation to the August 24, 2021, RVR, fails to state 11 a claim because Plaintiff fails to allege the credit forfeiture has been invalidated. Although 12 Plaintiff alleges he is currently pursing habeas relief in connection to his loss of custody 13 credits, he was previously informed in this Court’s order dismissing his original Complaint 14 that he must allege he has successfully invalidated the loss of credits because claims of 15 constitutional violations related to the “circumstances” of a prisoner’s confinement are 16 brought in a civil rights action under 28 U.S.C. § 1983, while constitutional challenges to 17 the validity or duration of a prisoner’s confinement must be raised in a petition for federal 18 habeas corpus under 28 U.S.C. § 2254. Muhammad v. Close, 540 U.S. 749, 750 (2004), 19 citing Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); see also Nettles v. Grounds, 830 20 F.3d 922, 927 (9th Cir. 2016) (en banc) (“The Court has long held that habeas is the 21 exclusive vehicle for claims brought by state prisoners that fall within the core of habeas, 22 and such claims may not be brought in a § 1983 action.”), citing Wilkinson v. Dotson, 544 23 U.S. 74, 81-82 (2005). A claim based on “harm caused by actions whose unlawfulness 24 would render a conviction or sentence invalid,” is not cognizable under § 1983 unless 25 Plaintiff “prove[s] that the conviction or sentence has been reversed on direct appeal, 26 expunged by executive order, declared invalid by a state tribunal authorized to make such 27 determination, or called into question by a federal court’s issuance of a writ of habeas 28 corpus, 28 U.S.C. § 2254.” Heck, 512 U.S. at 486-87. The Heck favorable termination 1 rule applies to prison disciplinary action which results in the loss of custody credits or 2 otherwise extends a prisoner’s sentence. Balisok, 520 U.S. at 646-48 (applying Heck bar 3 where the “defect complained of by [plaintiff] would, if established, necessarily imply the 4 invalidity of the deprivation of [his] good-time credits.”); Preiser, 411 U.S. at 498-99 5 (holding that a writ of habeas corpus is “explicitly and historically designed” to provide a 6 state prisoner with the “exclusive” means to “attack the validity of his confinement” in 7 federal court). 8 The Fourteenth Amendment due process claim in the FAC is dismissed for failing 9 to state a claim upon which § 1983 relief can be granted pursuant to 28 U.S.C. 10 §§ 1915(e)(2)(B) & 1915A(b) because Plaintiff has failed to allege a lack of procedural 11 due process in connection to his October 5, 2020, disciplinary infraction, and because 12 Plaintiff does not allege the loss of custody credits arising from either RVR has been 13 invalidated by way of administrative or direct appeal, executive order, or through the 14 issuance of either a state or federal court writ of habeas corpus. 15 2. Eighth Amendment Claim 16 The FAC, as with the original Complaint, also once again fails to plausibly allege an 17 Eighth Amendment claim for cruel and unusual punishment because there are no 18 allegations regarding Plaintiff’s conditions of confinement. “[A] prison official violates 19 the Eighth Amendment when two requirements are met. First, the deprivation alleged must 20 be, objectively, ‘sufficiently serious.’” Farmer v. Brennan, 511 U.S. 825, 834 (1994), 21 quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991). Second, Plaintiff must allege the prison 22 official he seeks to hold liable had a “sufficiently culpable state of mind,” that is, “one of 23 ‘deliberate indifference’ to inmate health or safety.” Id., quoting Wilson, 501 U.S. at 302- 24 03. A prison official can be held liable only if he “knows of and disregards an excessive 25 risk to inmate health or safety; the official must both be aware of facts from which the 26 inference could be drawn that a substantial risk of serious harm exists, and he must also 27 draw the inference.” Id. at 837. 28 / / / 1 Although Plaintiff alleges he was placed in ASU for ten days as a result of his 2 October 5, 2020, disciplinary charge, the FAC, like the original Complaint, contains no 3 allegations he was subject to conditions of confinement giving rise to an Eighth 4 Amendment claim. “The circumstances, nature, and duration” of the conditions in ASU 5 must rise to the level of “extreme deprivations” as opposed to “routine discomfort inherent 6 in the prison setting” in order to violate the Eighth Amendment. Johnson v. Lewis, 217 7 F.3d 726, 731 (9th Cir. 2000); see also Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th 8 Cir. 2006) (“[W]hile conditions of confinement may be, and often are, restrictive and 9 harsh,” only conditions which are “devoid of legitimate penological purpose . . . or contrary 10 to evolving standards of decency that mark the progress of a maturing society violate the 11 Eighth Amendment.”), citing Hudson v. Palmer, 468 U.S. 517, 548 (1984); see Farmer, 12 511 U.S. at 834 (an Eighth Amendment violation occurs where a prisoner is denied “the 13 minimal civilized measure of life’s necessities.”); Hudson v. McMillian, 503 U.S. 1, 9 14 (1992) (an Eighth Amendment violation requires an objectively grave deprivation of 15 humane conditions of confinement); Whitley v. Albers, 475 U.S. 312, 319 (1986) (“After 16 incarceration, only the unnecessary and wanton infliction of pain . . . constitutes cruel and 17 unusual punishment forbidden by the Eighth Amendment.”) Mere allegations that Plaintiff 18 was charged with and convicted of disciplinary infractions or placed in the ASU does not 19 support an Eighth Amendment claim. See e.g., Collins v. Williams, 536 F.App’x 706, 707 20 (9th Cir. 2013) (finding that “neither the issuance of disciplinary charges of which Collins 21 was later acquitted - nor his placement in administrative, protective, and disciplinary 22 segregation for almost six months - constituted cruel and unusual punishment); Ivy v. 23 Wingo, No. 20cv1345-CAB (AHG), 2020 WL 5709278, at *8 (S.D. Cal. Sept. 24, 2020) 24 (sua sponte dismissing prisoner’s challenge to disciplinary conviction for possession of 25 contraband as “cruel and unusual punishment.”) 26 Accordingly, the Eighth Amendment claim in the FAC is dismissed for failing to 27 state a claim upon which § 1983 relief can be granted pursuant to 28 U.S.C. 28 §§ 1915(e)(2)(B) & 1915A(b). 1 3. Equal Protection Claim 2 “The central purpose of the Equal Protection Clause of the Fourteenth Amendment 3 is the prevention of official conduct discriminating on the basis of race.” Washington v. 4 Davis, 426 U.S. 229, 239 (1976). “Intentional discrimination means that a defendant acted 5 at least in part because of a plaintiff’s protected status.” Maynard v. City of San Jose, 37 6 F.3d 1396, 1404 (9th Cir. 1994). 7 Plaintiff alleges that: “I am an African American Muslim and I believe that c/o Flores 8 falsified her RVR report based on my racial ethnicity, my Islamic beliefs, and with the 9 specific intent to retaliate against me for a civil lawsuit settlement I received $1,500 in 10 2018 for when I sued another correctional officer. I believe that c/o E. Vega racially 11 discriminated against me when he failed to inform c/o A. Flores that I was using my ‘altered 12 razor’ to cut my hair.” (ECF No. 7 at 3.) He also alleges: “I was singled out by these two 13 officers because of my race, my religion, and the proximity of my release dates that they 14 could extort me for information and any refusal to cooperate would send me to ASU. C/o 15 A. Fores and E. Vega would never attempt to extort any Hispanic inmate for information 16 because they know the repercussion that the southside gang members would initiate for 17 such actions. However Black inmates are threatened, extorted, bullied, and retaliated 18 against methodically by c/os at Calipatria prison.” (Id. at 7.) 19 Although Plaintiff adequately alleges membership in a protected class for equal 20 protection purposes, see Fields v. Legacy Health Sys., 413 F.3d 943, 955 (9th Cir. 2005) 21 (identifying “race, alienage, national origin, [and] sex” as examples of characteristics 22 protected by the Equal Protection Clause), his allegation that Defendants intentionally 23 discriminated against him because of his membership in a protected class is insufficiently 24 conclusory. See Maynard, 37 F.3d at 1404 (“Intentional discrimination means that a 25 defendant acted at least in part because of a plaintiff’s protected status.”); Griffin v. 26 Breckenridge, 403 U.S. 88, 102 (1971) (“The language requiring intent to deprive of equal 27 protection, or equal privileges and immunities, means that there must be some racial, or 28 perhaps some otherwise class-based, invidiously discriminatory animus behind the 1 [defendant]’s actions.”) The only allegation in the FAC as to why Plaintiff believes he was 2 discriminated against because of his race and religion is his belief that Defendants would 3 not attempt to extort Hispanic inmates in the same manner as they extort Black and Muslim 4 inmates for information regarding prison offenses due to feared repercussions from 5 Hispanic prison gangs. Without specific factual allegations supporting the basis for 6 Plaintiff’s knowledge or belief in that regard, his conclusory allegation does not plausibly 7 state an equal protection claim. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 8 (9th Cir. 2001) (holding the court need not accept as true “allegations that are merely 9 conclusory, unwarranted deductions of fact, or unreasonable inferences.”); Mitchell v. Las 10 Vegas Metropolitan Police Dept., et al., 2021 WL 808735, *5 (D. Nev. Mar. 3, 2021) 11 (finding plaintiff’s identification as an “African American” and a “[B]lack man” 12 insufficient by itself to suggest defendants “acted with an intent or purpose to discriminate” 13 against him based on race). 14 Accordingly, the equal protection claim in the FAC is dismissed for failing to state 15 a claim upon which § 1983 relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) 16 & 1915A(b). 17 4. Retaliation Claim 18 Finally, Plaintiff alleges he was sent to ASU for ten days and charged with 19 possession of a deadly weapon rather than possession of contraband in the October 5, 2020, 20 RVR for refusing to give in to the extortion demand of Defendants Flores and Vega to 21 cooperate with them and tell them where they could find a cellphone at the prison. (ECF 22 No. 7 at 3, 7.) He claims he was retaliated against for that refusal to cooperate, because he 23 received $1,500 in a 2018 civil lawsuit settlement when he sued another correctional 24 officer, and due to the proximity of his imminent release date. (Id.) 25 “Within the prison context, a viable claim of First Amendment retaliation entails 26 five basic elements: (1) An assertion that a state actor took some adverse action against an 27 inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled 28 the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably 1 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (2005). 2 The adverse action need not be an independent constitutional violation. Gomez v. Vernon, 3 255 F.3d 1118, 1127 (9th Cir. 2001) (“[A] retaliation claim may assert an injury no more 4 tangible than a chilling effect on First Amendment rights.”) A prisoner must allege a 5 retaliatory motive, that is, a causal connection between the adverse action and his protected 6 conduct. Watison, 668 F.3d at 1114. An “adverse action” is an action causing “harm or a 7 threat of harm that would deter a person of ordinary firmness from protected activities.” 8 Rhodes, 408 F.3d at 568-69. 9 Plaintiff’s allegation that the disciplinary charge was increased from possession of 10 contraband to possession of a deadly weapon in retaliation for his failure to cooperate or 11 success on his lawsuit is sufficient for screening purposes to allege Defendants Flores and 12 Vega took an adverse action against him because of his protected conduct which chilled 13 the exercise of his First Amendment rights and did not reasonably advance a legitimate 14 correctional goal. Rhodes, 408 F.3d at 567-68; Hines v. Gomez, 108 F.3d 265, 269 (9th 15 Cir. 1997) (“Authorizing false reports against plaintiff for the purpose of subjecting him to 16 disciplinary measures is sufficient to constitute adverse action.”) Plaintiff plausibly alleges 17 his charge of possession of a deadly weapon did not advance a legitimate penological goal 18 because he alleges other inmates found in possession of an altered razor who do not use it 19 as a weapon are, and are required under CDCR regulations to be, merely charged with 20 possession of contraband. See Sheppard v. Quillen, 840 F.3d 686, 692 (9th Cir. 2016) 21 (“[A] prison official who uses a valid procedure as subterfuge to obscure retaliation ‘cannot 22 assert that (his action) served a valid penological purpose, even though (the prisoner) may 23 have arguably ended up where he belonged.’”), quoting Bruce v. Ylst, 351 F.3d 1283, 1289 24 (9th Cir. 2003). Thus, with respect to Plaintiff’s retaliation claim against Defendants Flores 25 and Vega the allegations in the FAC “are sufficient to meet the low threshold for 26 proceeding past the screening stage.” Wilhelm, 660 F.3d at 1123; Iqbal, 556 U.S. at 678; 27 Rhodes, 408 F.3d at 567-68. Plaintiff is entitled to have the U.S. Marshal effect service of 28 the summons and FAC on his behalf against Defendants Flores and Vega. See 28 U.S.C. 1 § 1915(d) (“The officers of the court shall issue and serve all process, and perform all duties 2 in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) (“[T]he court may order that service be made by 3 a United States marshal or deputy marshal . . . if the plaintiff is authorized to proceed in 4 forma pauperis under 28 U.S.C. § 1915.”) However, the sua sponte screening process is 5 “cumulative of, not a substitute for, any subsequent [motion to dismiss] that the defendant 6 may choose to bring.” Teahan v. Wilhelm, 481 F.Supp.2d 1115, 1119 (S.D. Cal. 2007). 7 Plaintiff’s allegation that Defendant CDCR retaliated against him by taking away 8 360 days of custody credits consists, in its entirety, of: “My due process was violated, and 9 retaliation by the CDCR.” (ECF No. 7 at 2.) Such wholly conclusory allegations fail to 10 state a claim against Defendant CDCR. See Iqbal, 556 U.S. at 678 (holding that the “mere 11 possibility of misconduct” or “unadorned, the defendant-unlawfully-harmed me 12 accusation[s]” fall short of meeting the plausibility standard for pleading a § 1983 claim); 13 Hentz v. Ceniga, 402 F.App’x. 214, 215 (9th Cir. 2010) (conclusory allegations of 14 retaliation are insufficient to state a claim). 15 Accordingly, the First Amendment retaliation claim in the FAC against Defendant 16 CDCR is dismissed for failing to state a claim upon which § 1983 relief can be granted 17 pursuant to 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b). 18 D. Plaintiff’s Options 19 Because the Court has determined that Plaintiff’s First Amendment retaliation claim 20 against Defendants Flores and Vega survives the sua sponte screening process but his 21 remaining claims do not, it will give Plaintiff the opportunity to (1) notify the Court of his 22 intent to proceed only with the First Amendment claim in the FAC against Defendants 23 Flores and Vega; or (2) file a Second Amended Complaint that attempts to correct the 24 deficiencies of pleading identified in this Order. Plaintiff must choose one of those options 25 within forty-five (45) days from the date this Order is filed. If Plaintiff notifies the Court 26 he wishes to proceed only with his claims against Defendants Flores and Vega, the Court 27 will issue an Order directing the U.S. Marshal to effect service of his FAC on Defendants 28 Flores and Vega and dismiss all remaining claims and Defendants from this action. 1 Conclusion and Orders 2 Good cause appearing, the Court: 3 1. DISMISSES all claims in Plaintiff's First Amended Complaint against all 4 || Defendants without prejudice and with leave to amend pursuant to 28 U.S.C. §§ 1915(e)(2) 5 1915A(b) with the exception of the First Amendment retaliation claim against 6 || Defendants Flores and Vega. 7 2. GRANTS Plaintiff forty-five (45) days leave from the date of this Order in 8 || which to either (1) notify the Court of his intention to proceed with his First Amendment 9 retaliation claim against Defendants Flores and Vega only; or (2) file a Second Amended 10 |}Complaint that cures the deficiencies of pleading noted in this Order. Plaintiff's Second 11 |} Amended Complaint must be complete by itself without reference to any previous version 12 ||of his Complaint. Any Defendants not re-named and any claims not re-alleged in the 13 Second Amended Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal 14 || Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) 15 || (“[A]n amended pleading supersedes the original.’’); Lacey v. Maricopa County, 693 F.3d 16 || 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not 17 ||re-alleged in an amended pleading may be “considered waived if not repled.’’) 18 IT IS SO ORDERED. 19 ||Dated: May 12, 2022 □ gf, J 20 a Yn: Hon. Dana M. Sabraw, Chief Judge 21 United States District Court 22 23 24 25 26 27 28 15