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
12 Plaintiff, REPORT AND RECOMMENDATION 13 v. GRANTING IN PART AND DENYING IN PART DEFENDANTS’ 14 CORRECTIONAL OFFICERS A. MOTION TO DISMISS FLORES and E. VEGA, 15 Defendants. [ECF. No. 20] 16 17 Plaintiff Tony Eugene Scally is a state prisoner, proceeding pro se and 18 informa pauperis (“IFP”) in a First Amendment retaliation claim against two 19 correctional officers pursuant to 42 U.S.C. § 1983. Plaintiff challenges a 20 prison disciplinary action that led to his conviction for possession of a deadly 21 weapon as a result of an altered razor blade found in his cell on October 5, 22 2020. Defendants move to dismiss the claim pursuant to Federal Rules of 23 Civil Procedure 12(b)(6). 24 I. Procedural Background 25 Plaintiff’s initial complaint filed on February 7, 2022 alleged numerous 26 constitutional and state law claims against two correctional officers and 1 Court dismissed that complaint for procedural and substantive pleading 2 errors and permitted Plaintiff to file an amended complaint, which he did on 3 April 18, 2022. (ECF Nos. 6-7). Another screening review on May 12, 2022 4 led to the dismissal of all but one claim. (ECF No. 8). 5 At issue here is the surviving First Amendment retaliation claim. 6 Plaintiff alleges a disciplinary action against him was in retaliation for a 7 successful complaint he lodged against a correctional officer in 2018, where 8 Plaintiff recovered $1500 in damages. (ECF No. 7 at 3). Plaintiff contends 9 Defendants sent him to the administrative segregation unit (the “ASU”) for 10 ten days to retaliate against him for his successful complaint, and because he 11 refused to snitch on fellow prisoners by revealing the location of contraband 12 in the prison building, after they discovered an altered razor blade in his cell. 13 Plaintiff claims that his prison release date of February 26, 2022 was only 16 14 months away at the time of the 2020 razor incident, and Defendants “used 15 that as leverage to extort me, intimidate me, and retaliate against me.” (Id. 16 at 5; see also ECF No. 7-1 at 2 [Legal Status Summary noting current release 17 date of August 21, 2023] compare with ECF No. 1 at 4, 16 [Compl. and Legal 18 Status Summary noting prior release date of February 26, 2022]). 19 In addition to spending ten days in the ASU, the disciplinary charge 20 against Plaintiff resulted in the loss of 360 days of custody credits and a 21 referral for criminal prosecution. Plaintiff entered a nolo contendere plea in 22 Imperial County Superior Court to possession of a deadly weapon and was 23 sentenced to two-years’ time-served on July 7, 2022. (ECF No. 7). People v. 24 Tony Scally, Case No. JCF004814 (Imperial Cnty. Super. Ct.). 25 On September 2, 2022, Defendants filed the current motion to dismiss. 26 (ECF No. 20). Plaintiff’s opposition was due September 30, 2022. (ECF No. 1 personal Declaration (sealed and dated October 17, 2022), with exhibits 2 attached. (ECF No. 26). Defendants maintain that Plaintiff’s Declaration 3 was untimely and invalid, but they filed a reply on November 10, 2022. (ECF 4 No. 27). 5 This Report and Recommendation is submitted to United States 6 District Judge Dana M. Sabraw pursuant to 28 U.S.C. § 636(b)(1) and Local 7 Civil Rule 72.1(c) of the United States District Court for the Southern 8 District of California. For the reasons set forth herein, the Court 9 RECOMMENDS Defendants’ motion be GRANTED in part and DENIED 10 in part. The motion should be GRANTED, and Plaintiff’s retaliation claim 11 barred, to the extent Plaintiff challenges his term of confinement; he may 12 only pursue such relief in a habeas proceeding. The motion should be 13 DENIED, and Plaintiff should be permitted to proceed with his retaliation 14 claim, to the limited extent he challenges his conditions of confinement in the 15 ASU. 16 II. Factual Background 17 Plaintiff is serving a determinate fifteen (15) year sentence for an 18 unrelated criminal conviction. (ECF No. 7-1 at 3-4). At all relevant times, 19 Plaintiff was incarcerated at Calipatria State Prison. (ECF No. 7 at 1). On 20 October 5, 2020, Defendant Correctional Officers Flores and Vega entered 21 Plaintiff’s cell and discovered an “altered razor.” (Id. at 4). The altered razor 22 was on Plaintiff’s shelf in plain sight, and Plaintiff was not in his cell when 23 Defendants discovered it because he was in the shower. (ECF No. 7 at 4; 24 ECF No. 7-1 at 8). Plaintiff validly received three state-issued razors with 25 bright orange handles earlier that morning, which he later modified for the 26 purpose of cutting his own hair. (ECF No. 7-1 at 8). Prisoners were allowed 1 Plaintiff admittedly “broke the guard off the state issued razor and 2 reattached the blade to the razor handle” by securing it with a piece of string 3 to assure the blade stayed in place for this haircut. (ECF No. 7-1 at 8). 4 Defendant Vega observed Plaintiff using the razor to cut his hair earlier that 5 morning and, therefore, “would know that it was not intended as a weapon.” 6 (Id.). There is no evidence Plaintiff tried to use the razor as a weapon, and he 7 has no history of possessing weapons during his prior 13 years in prison. 8 (ECF No. 7 at 4). 9 Plaintiff claims Defendants failed to follow California Department of 10 Corrections and Rehabilitation (“CDCR”) policies, rules and regulations by 11 falsely charging him with a Rules Violation Report (“RVR”) for possession of a 12 deadly weapon instead of the lesser and more appropriate charge of 13 possession of dangerous contraband. (ECF No. 7 at 4, 6). The lesser charge 14 of possessing dangerous contraband would not have subjected Plaintiff to 15 criminal prosecution or the 360-day loss of credited time. (ECF No. 7-1 at 9). 16 Plaintiff maintains that Defendant Flores filed the heightened charge 17 against him, while Defendant Vega knowingly failed to correct the charge, 18 allowing Flores to lie when she classified the altered razor as a deadly 19 weapon instead of dangerous contraband. (ECF No. 7 at 8). Defendants were 20 “willing to overlook” the altered razor, and not send Plaintiff to the ASU, if 21 Plaintiff disclosed other inmates with contraband. (Id. at 3). Defendant 22 Vega told Plaintiff “that if [Plaintiff] didn’t want to go to ASU then [Plaintiff] 23 should tell him where he can locate a cellular phone at in 2 building.” (ECF 24 No. 7-1 at 8). “Defendant Vega made it extremely clear that he had the 25 power” to let Plaintiff return to his cell “if [Plaintiff] gave him information on 26 any inmate who had a cellphone.” (Id. at 5). Because of Plaintiff’s successful 1 snitch on an inmate, Defendants sent him to the ASU, and then pursued the 2 charge that resulted in his loss of custody credits and felony conviction. (Id. 3 at 5). Plaintiff filed a 602 complaint against Defendant Vega, but never got a 4 response. (ECF No. 7-1 at 8). 5 Plaintiff’s amended complaint attaches prison regulations, documents 6 and a report that align with his version of the events. First, he presents a 7 February 21, 2002 Memorandum from the Department of Corrections and 8 Rehabilitation that addresses the unauthorized possession of razor blades by 9 inmates. (ECF No. 7-1 at 9). That document states: 10 Incidents involving inmates housed in general population having 11 unauthorized possession of a razor blade altered from its original manufactured state should be evaluated on a case-by-case basis. 12 Absent evidence or information which would indicate the razor 13 blade was intended to be used as a weapon, a more appropriate charge in these types of instances may be 14 “Possession of Contraband,” as described in CCR, Section 15 3323(e)(3), a Division “C” offense. 16 (Id.) (emphasis added). Plaintiff maintains there is no evidence his altered 17 blade was intended to be used as a weapon. Second, he attaches regulations 18 that define “dangerous contraband” as “substances . . . that have been altered 19 from their original manufactured state or purpose and which could be 20 fashioned into a weapon.” (Id.). Plaintiff argues that description clearly fits 21 the character of his altered razor, yet that was not the charge raised against 22 him. (ECF No. 26-2 at 2). 23 Third, Plaintiff relies upon a section of the Penal Code that defines a 24 deadly weapon by enumerating certain specific items, and incorporating into 25 the definition “any item not readily identified in Penal Code 4502 . . . when 26 used in a manner that could reasonably result in serious bodily 1 retaliatory motive is evinced by those regulations because Defendants 2 discovered his altered razor sitting on a shelf while he showered – not “when 3 used in a manner that could reasonably result in serious bodily injury or 4 death.” (Id.). 5 Lastly, Plaintiff attaches portions of a decision from the Inmate 6 Classification Committee (“ICC”) that evaluated Plaintiff’s placement in the 7 ASU after the altered razor incident. The ICC concluded the alleged “deadly 8 weapon” should be considered “dangerous contraband,” and returned Plaintiff 9 to the general population after ten days in the ASU. (ECF No. 26 at 1). The 10 ICC letter states, “the weapon appears to be more of possession of dangerous 11 contraband and no prior SHUable offenses.” (ECF No. 26-3 at 3). Plaintiff is 12 currently seeking habeas relief to restore his 360 days of custody credits lost 13 in connection with the offense at issue, which was charged as RVR No. 14 7034748. (Id. at 3-4, 7-8). The amended complaint seeks monetary damages 15 and an injunction preventing Defendants’ retaliation. (ECF No. 7 at 10). 16 III. Legal Standards 17 A. Constitutional Challenges Pursuant to 42 U.S.C. § 1983 18 Title 42 U.S.C. § 1983 “creates a private right of action against 19 individuals who, acting under color of state law, violate federal constitutional 20 or statutory rights.” Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). 21 Section 1983 “is not itself a source of substantive rights, but merely provides 22 a method for vindicating federal rights elsewhere conferred.” Graham v. 23 Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks omitted). “To 24 establish § 1983 liability, a plaintiff must show both (1) deprivation of a right 25 secured by the Constitution and laws of the United States, and (2) that the 26 deprivation was committed by a person acting under color of state law.” Tsao 1 B. Rule 12(b)(6) Motion to Dismiss & Judicial Notice 2 A motion to dismiss a complaint under Federal Rule of Civil Procedure 3 12(b)(6) tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 4 729, 732 (9th Cir. 2001). A complaint must set forth “a short and plain 5 statement of the claim showing that the pleader is entitled to relief.” Fed. R. 6 Civ. P. 8(a)(2). “Specific facts are not necessary; the statement need only 7 ‘give the defendant fair notice of what the . . . claim is and the grounds upon 8 which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citation omitted). 9 Dismissal is proper where the complaint does not contain enough 10 factual allegations, when taken as true, to establish “plausible,” as opposed to 11 merely “possible” or “speculative,” entitlement to relief. Bell Atlantic Corp. v. 12 Twombly, 550 U.S. 544, 555 (2007). Although detailed factual allegations are 13 not required, Rule 8 “demands more than an unadorned, the-defendant- 14 unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 15 (2009). In evaluating a motion to dismiss under Rule 12(b)(6), a court must 16 assume the truth of the facts presented and construe all inferences from them 17 in the light most favorable to the nonmoving party. Erickson, 551 U.S. at 94. 18 Generally, when ruling on a motion brought under Rule 12(b)(6), “a 19 district court may not consider any material beyond the pleadings.” Branch v. 20 Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). A court may, however, consider 21 “material which is properly submitted as part of the complaint” without 22 converting a motion to dismiss into a motion for summary judgment.” Lee v. 23 City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (citation omitted). A 24 court may also consider documents that are not physically attached to the 25 complaint, as long as their “authenticity . . . is not contested” and the 26 complaint “‘necessarily relies’ on them.” Id. (quoting Parrino v. FHP, Inc., 146 1 Pursuant to Fed. R. Evid. 201, a court may properly consider 2 judicially noticeable “matters of public record.” Fed. R. Evid. 201(b)(2) (facts 3 are judicially noticeable when they are not subject to reasonable dispute and 4 “can be accurately and readily determined from sources whose accuracy 5 cannot reasonably be questioned”); Reyn’s Pasta Bella LLC v. Visa USA, Inc., 6 442 F.3d 741, 746 n.6 (9th Cir. 2006) (“We may take judicial notice of court 7 filings and other matters of public record.”) (citation omitted). Courts within 8 this circuit have found that such judicially noticeable documents include the 9 docket entries in a state court criminal case. See Borsotti v. California, 15– 10 04112 JAK (AFM), 2016 WL 2865361, at *4 (C.D. Cal. Mar. 25, 2016) (taking 11 judicial notice of the docket and the complaint in plaintiff's state court 12 criminal action); accord Eli Lilly & Co. v. Gitmed, 1:16-cv-00178-DAD-SAB, 13 2017 WL 1740132, at *3 (E.D. Cal. May 4, 2017) (taking judicial notice of 14 docket entry in plaintiff’s criminal case in assessing proper restitution). 15 The Court takes judicial notice of Plaintiff’s plea to a division A-1 16 offense, his subsequent conviction for possession of a deadly weapon by a 17 prisoner in violation of CAL. PENAL CODE § 4502(a), and the state 18 regulations governing that offense. See Lee v. City of Los Angeles, 250 F.3d 19 668, 688-89 (9th Cir. 2001) (“under Fed. R. Evid. 201, a court may take 20 judicial notice of ‘matters of public record’”); Miles v. State of California, 320 21 F.3d 986, 987 n.1 (9th Cir. 2003) (taking judicial notice of related state court 22 proceedings). (See ECF No. 21 and attached exhibits). 23 C. Standards for Pro Se Litigants 24 A pro se litigant is not excused from following applicable procedural 25 rules. See Briones v. Riviera Hotel & Casino, 116 F.3d 379, 382 (9th Cir. 26 1997) (“pro se litigants are not excused from following court rules”). As the 1 right to self-representation in civil matters,” and they must be afforded 2 liberal construction in their pleadings, including their motions, in order to 3 ensure they have meaningful access to the courts. See Hughes v. Rowe, 449 4 U.S. 5, 9 (1980) (pro se pleadings “are held to less stringent standards than 5 [those] drafted by lawyers”); cf. Jones v. Blanas, 393 F.3d 918, 935 (9th Cir. 6 2004) (holding that it would be an abuse of discretion for a district court not 7 to consider evidence offered by a pro se plaintiff in opposition to a summary 8 judgment for the first time in objections to the court’s proposed findings and 9 recommendations); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) 10 (“Presumably unskilled in the law, the pro se litigant is far more prone to 11 making errors in pleading than the person who benefits from the 12 representation of counsel.”). Moreover, there is a strong public policy in favor 13 of deciding cases on their merits whenever reasonably possible. See 14 Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). 15 IV. Discussion 16 Defendants move for dismissal under Rule 12(b)(6) on two grounds: 17 (1) Plaintiff’s claim is barred by the favorable determination rule set forth in 18 Heck v. Humphrey because a judgment in Plaintiff’s favor would undermine 19 the validity of his criminal conviction and loss of custody credits; and (2) 20 Plaintiff cannot establish his disciplinary charge failed to serve a valid 21 penological purpose, as required to prove a retaliation claim. (ECF No. 20 22 at 8). 23 As a preliminary matter, the court finds that Plaintiff’s failure to file a 24 responsive document by the prescribed deadline constitutes excusable 25 neglect. See Fed. R. Civ. P. 6(b)(1)(B) (stating that a court may extend the 26 time for filing a response where a party’s failure to meet a deadline was due 1 Cir. 2013) (stating that a court must construe liberally a pro se plaintiff's 2 filings); Brophy v. JPMorgan Chase Bank, N.A., 2:14-cv-0411-TOR, 2015 WL 3 6511627, at *2 (E.D. Wash. Oct. 28, 2015) (“The Court construes Plaintiffs’ 4 act of filing a late response as a request to consider their brief past the 5 deadline.”). Since the pandemic began, the Court has seen a significant 6 increase in inmates’ motions for extensions of time and late filings related to 7 complications and delayed prison procedures, as likely was the case here. 8 The Court’s consideration of Plaintiff’s response will not prejudice 9 Defendants because they had the opportunity to file a reply that 10 substantively addressed the response. See Brophy, 2015 WL 6511627, at *2 11 (finding “minimal prejudice” where the other party “was still afforded a 12 chance to file a reply”). Advancing the public policy of resolution on the 13 merits, the Court will consider Plaintiff’s Declaration as a valid response to 14 the motion to dismiss. (ECF No. 26). 15 A. Heck’s Favorable Determination Rule Only Forecloses Plaintiff’s Challenge to the Term of His Confinement, Not the 16 Conditions of Confinement in the ASU 17 1. Heck Bars Plaintiff’s Constitutional Challenge Only as to the 18 Duration/Term of His Confinement 19 In Heck v. Humphrey, the Supreme Court established that a claim 20 brought under 42 U.S.C. § 1983 must be dismissed if judgment in favor of a 21 plaintiff would undermine the validity of a conviction or sentence, unless a 22 plaintiff can demonstrate that the conviction or sentence has already been 23 invalidated. 512 U.S. 477, 486-87 (1994). A defendant has the burden of 24 demonstrating that Heck bars a plaintiff’s § 1983 claim. Luster v. Amezcua, 25 1:16-cv-00554- LJO-GSA-PC, 2019 WL 1442992, at *7 (E.D. Cal. Apr. 1, 2019) 26 (citation omitted). Courts have extended the holding in Heck to First 1 Amendment retaliation claims arising out of allegedly false disciplinary 2 charges. See Turner v. Sullivan, 821 F. App’x 835, 836 (9th Cir. 2020) 3 (affirming dismissal of First Amendment retaliation claim under Heck, which 4 alleged that defendants issued a false disciplinary charge against plaintiff 5 that resulted in the loss of thirty days of credits); Luster, 2019 WL 1442992, 6 at *8 (dismissing prisoner’s First Amendment retaliation claim under Heck, 7 because finding in plaintiff’s favor “would necessarily imply the invalidity” of 8 the criminal conviction and disciplinary punishment because plaintiff’s 9 theory depended on a finding that the charges against her were false). 10 Heck’s bar applies in the prison disciplinary context if the “defect 11 complained of by [Plaintiff] would, if established, necessarily imply the 12 invalidity of the deprivation of [his] good-time credits[,]” Edwards v. Balisok, 13 520 U.S. 641, 646 (1997), and if the restoration of those credits would 14 necessarily “affect the duration of time to be served.” Muhammed v. Close, 15 540 U.S. 749, 754 (2004); see also Nettles v. Grounds, 830 F.3d 922, 929 n.4 16 (9th Cir. 2016) (en banc) (“Heck applies only to administrative determinations 17 that ‘necessarily’ have an effect on ‘the duration of time to be served.’” 18 (citation omitted)). 19 “In evaluating whether claims are barred by Heck, an important 20 touchstone is whether a § 1983 plaintiff could prevail only by negating ‘an 21 element of the offense of which he has been convicted.’” Cunningham v. 22 Gates, 312 F.3d 1148, 1153–54 (9th Cir. 2002) (quoting Heck, 512 U.S. at 487 23 n.6). Thus, a plaintiff’s claims are barred when they depend on a theory that 24 calls into question whether he committed the offense for which he was 25 convicted. Luster, 2019 WL 1442992, at *7. Consequently, “the relevant 26 question is whether success in a § 1983 suit would ‘necessarily imply’ or 1 Thomas, No. 14-cv-00199-JCS, 2015 WL 5915368, at *3 (N.D. Cal. Oct. 9, 2 2015) (citing Smith v. City of Hemet, 394 F.3d 689, 695 (9th Cir. 2005) (en 3 banc)). 4 Here that answer is clear as to part of Plaintiff’s allegations and claim. 5 A finding that Plaintiff was falsely charged with an A-1 offense for retaliatory 6 reasons would necessarily invalidate his offense and conviction, and negate 7 the forfeiture of his confinement credit. This Court cannot simultaneously 8 find that Defendants unlawfully retaliated against Plaintiff by bringing the 9 deadly weapon charge instead of the dangerous contraband charge but permit 10 the prior conviction to stand. Proof of a retaliatory motive related to that 11 charge necessarily invalidates the deadly weapon conviction and subsequent 12 penalties, and thus is barred by Heck. Plaintiff is not, however, without a 13 remedy with respect to the extended duration of his confinement. And, the 14 conviction and confinement is not all that he challenges here. 15 First, contrary to Defendants’ assertion that Heck applies to a nolo 16 contendere plea, the Court notes the majority view is to the contrary. Lockett 17 v. Ericson, 656 F.3d 892, 897 (9th Cir. 2011) (Heck does not bar a § 1983 18 claim for unlawful search because the plaintiff pled no contest to the charge 19 on which the defendant based its Heck preclusion argument.); Jackson v. 20 Barnes, 749 F.3d 755, 760 (9th Cir. 2014) (“[In Lockett,] a plaintiff who pled 21 nolo contendere to reckless driving was not Heck-barred from bringing a § 22 1983 claim based on an alleged unlawful search because the outcome of the 23 claim had no bearing on the validity of the plaintiff’s plea.”); Hilson v. Arnett, 24 No. 1:15cv01240-DAD-MJS(PC), 2017 WL 1375219, at *4 (E.D. Cal. Apr. 17, 25 2017), report and recommendation adopted, 2017 WL 1956729 (E.D. Cal. May 26 11, 2017) (“The majority of district courts that have addressed the issue have 1 have simply concluded that Lockett means what it says: convictions based on 2 no contest pleas are not Heck barred under Lockett’s rationale). Second, 3 Plaintiff has already instituted a habeas corpus challenge to restore his 4 confinement credits, and if successful at invalidating his prison disciplinary 5 sanction, Plaintiff is not foreclosed from a subsequent constitutional 6 challenge pursuant to § 1983. 7 To the extent Plaintiff’s amended complaint challenges the fact and 8 duration of his confinement in this § 1983 action, however, Defendants 9 correctly state that Plaintiff’s claim is barred by Heck. Wilkinson v. Dotson, 10 544 U.S. 74, 78 (2005) (“A state prisoner cannot challenge the fact or duration 11 of his/her confinement in a Section 1983 action; his/her sole remedy lies in 12 habeas corpus relief.”). He may not challenge his administrative charge, 13 felony conviction, or the forfeiture of good time credits in this retaliation 14 claim. Plaintiff’s amended complaint, however, alleges more. 15 2. Heck Does Not Bar Plaintiff’s Challenge to the Conditions of His Confinement in the ASU 16
17 State prisoners can bring § 1983 actions when their lawsuits do not 18 collaterally attack the duration of their confinement or a conviction. For 19 instance, when a prisoner is serving a life term, or if success in a § 1983 20 lawsuit does not cause an immediate release or a shorter stay in prison then 21 a claim does not necessarily seek to alter the duration of confinement. 22 Luster, 2019 WL 1442992, at *6 n.12. “A section 1983 action is a proper 23 remedy for a state prisoner who is making a constitutional challenge to the 24 conditions of his prison life, but not to the fact or length of his custody.” 25 Ramirez v. Galaza, 334 F.3d 850, 856 (9th Cir. 2003) (citation omitted). 26 Prisoners challenging the conditions of their confinement are not 1 a writ of habeas corpus because “the favorable termination rule turns solely 2 on whether a successful § 1983 action would necessarily render invalid a 3 conviction, sentence, or administrative sanction that affected the length of 4 the prisoner’s confinement.” Id. 5 Here, separate and distinct from the allegations that are barred by 6 Heck (i.e., Plaintiff’s conviction for possessing a deadly weapon, his 7 administrative charge, and the loss of custody credits), is Plaintiff’s claim 8 that Defendants sent him to the ASU because he (1) successfully litigated a 9 complaint against a correctional officer in the recent past, (2) refused to 10 snitch on another inmate with contraband, and (3) was facing imminent 11 release from his 15-year determinate sentence. (ECF No. 7). 12 Regulations and prison documents attached to the amended complaint 13 arguably suggest that, before bringing a disciplinary charge of the type 14 involved here, correctional officers are encouraged (but not required) to 15 consider (1) the lack of any past possession of dangerous weapons by the 16 inmate, and (2) the lack of any use of the altered razor in a manner that could 17 reasonably result in serious bodily injury or death. Defendants did not do 18 that. When the ICC did so, it determined that possession of a dangerous 19 weapon was the more fitting charge here. Knowing that Plaintiff was subject 20 to release from 15-years imprisonment in less than 16 months, Plaintiff 21 plausibly states that Defendants leveraged his circumstances against him in 22 retaliation for succeeding in a prior complaint against a correctional officer 23 and refusing to snitch on a fellow inmate. 24 Despite the altered razor being outside Plaintiff’s presence, in plain 25 sight, and not used in a manner that could result in serious bodily injury, 26 Defendants threatened and then proceeded to send Plaintiff to the ASU. It is 1 cooperated with Defendants (even if they proceeded to charge him with 2 possession of a deadly weapon). Factual disputes govern whether Plaintiff’s 3 successful litigation against a prison guard, his refusal to snitch on a fellow 4 inmate, and his impending release from custody played a role in Plaintiff’s 5 placement in the ASU for ten days, and that aspect of his claim is not Heck- 6 barred. Muhammad, 540 U.S. at 754 (discussing the “mistaken view 7 expressed in Circuit precedent that Heck applies categorically to all suits 8 challenging prison disciplinary proceedings). 9 Those events arguably present a separate factual predicate from 10 Defendants’ subsequent possession of a deadly weapon charge, Plaintiff’s 11 conviction, and the lost credits that later resulted. See generally Kamali v. 12 Stevens, 1:19cv01432-JLT-GSA(PC), 2022 WL 4593052, at *2 (E.D. Cal. Sept. 13 30, 2022) (stating in case involving battery and excessive force that “where a 14 complaint alleges a continuous chain of events with two separate factual 15 predicates . . . Heck would not operate as a bar”). 16 Defendants incorrectly assume that because Plaintiff concedes his 17 conduct was a violation of the lesser dangerous contraband offense, the only 18 issue presented in the case is Plaintiff’s term of confinement. (ECF No. 20 at 19 16). The conditions Plaintiff endured in the ASU do not necessarily relate to 20 the fact of his conviction nor duration of punishment. Defendants also 21 incorrectly contend that because Plaintiff fails to allege the lesser charge 22 would have averted his placement in the ASU, Heck bars his retaliation 23 claim. (Id.). Assuming Plaintiff’s allegations are true, as the Court must do, 24 Defendants offered not to send Plaintiff to the ASU if he snitched on inmates 25 with cellphones. When he did not comply, Defendants retaliated against him 26 because of his prior successful complaint against a correctional officer and 1 not a term of confinement. 2 Whether Plaintiff was also charged in the Defendants’ discretion with a 3 heightened offense, convicted, and then lost good time credit are factors 4 distinct from Defendants’ decision to send him to the ASU in retaliation for 5 protective conduct. Plaintiff’s legal challenge to placement in the ASU does 6 not necessarily implicate his possession of the altered razor, regardless of 7 how that charge was characterized. See Puckett v. Zamora, 12-cv-00948- 8 DLB-PC, 2015 WL 757330, at *4 (E.D. Cal. Feb. 23, 2015) (finding plaintiff’s 9 excessive force claim regarding an initial takedown barred by the favorable 10 termination rule and dismissing that portion of the claim only; allowing to 11 proceed plaintiff’s “claims that once he was taken to the ground, Defendants 12 used excessive force against him by physically beating him while he was 13 restrained[,] . . . punched [p]laintiff while he was on the ground,” and that 14 other defendants “stood by and watched as [p]laintiff screamed for help”); see 15 also Johnson v. Gonzalez, No. 9-cv-01264-AWI-BAM-PC, 2014 WL 3940088, 16 at *6 (E.D. Cal. Aug. 12, 2014) (finding “[p]laintiff’s excessive force claim 17 regarding the initial takedown is barred by the favorable termination rule, 18 and this portion of his claim must be dismissed”; however, plaintiff’s 19 allegations “that after the initial takedown, he was struck by [d]efendants . . . 20 numerous times before losing consciousness” survived summary judgment), 21 report and recommendation adopted, 2014 WL 4794968 (Sept. 25, 2014). 22 Plaintiff may argue about and attempt to show the circumstances that 23 surrounded the Defendants’ decision to charge a deadly weapon offense, but 24 Plaintiff may not challenge the deadly weapon offense itself or the 25 confinement terms associated with that offense. Cf. Wiseman v. Williams, 26 No. CV 20-11813-VBF(E), 2022 WL 2961670, at *12 (C.D. Cal. Jan. 20, 2022) 1 complaint, allegation of a chronology of events from which retaliation can be 2 inferred is sufficient to survive dismissal.”). To the limited extent Plaintiff’s 3 claim challenges his conditions of confinement in the ASU, rather than the 4 duration or his conviction, it is cognizable under § 1983 and not barred by 5 Heck. Ramirez, 334 F.3d at 852 (reversing district court’s dismissal under 6 Heck to permit inmate’s challenge to conditions of confinement because his § 7 1983 claim disputed a term of segregated confinement and would not 8 necessarily invalidate a disciplinary action that affects the fact or length of 9 confinement). 10 B. Plaintiff Sufficiently Alleges Defendants’ Retaliatory Action 11 in Sending Him to the ASU Did Not Advance a Legitimate Correctional Goal 12
13 “Within the prison context, a viable claim of First Amendment 14 retaliation entails five basic elements: (1) An assertion that a state actor 15 took some adverse action against an inmate (2) because of (3) that prisoner’s 16 protected conduct, and that such action (4) chilled the inmate’s exercise of his 17 First Amendment rights, and (5) the action did not reasonably advance a 18 legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 19 (2005). Because “retaliation claims by prisoners are ‘prone to abuse’ since 20 prisoners can claim retaliation for every decision they dislike,” Graham v. 21 Henderson, 89 F.3d 75, 80 (2d Cir. 1996), the inmate bears the burden of 22 setting forth facts that satisfy each and every element necessary for a prima 23 facie case of retaliation. Rhodes, 408 F.3d at 569; Hines v. Gomez, 108 F.3d 24 265, 267-68 (9th Cir. 1997). 25 The adverse actions here is Defendants’ placement of Plaintiff in the 26 ASU. Watison v. Carter, 668 F.3d 1108, 1115 (9th Cir. 2012) (being placed in 1 connection includes Plaintiff’s past, successful complaint against a 2 correctional officer and Plaintiff’s refusal to snitch on an inmate in exchange 3 for avoidance of the ASU, both of which occurred in the context of Plaintiff’s 4 approaching release date. Taken together, those activities could chill 5 Plaintiff’s First Amendment right to bring a complaint against correctional 6 officers for wrongful conduct. 7 The Court rejects Defendants’ effort to isolate Plaintiff’s refusal to 8 snitch as an invalid basis for protective First Amendment activity (see ECF 9 No. 20 at 20), because failing to cooperate with Defendants is merely one 10 component of the claim. Plaintiff’s allegations include his past legal success 11 against another correctional officer, Defendants’ awareness and use of the 12 altered razor to cut his hair, the confiscation of the razor outside Plaintiff’s 13 presence, along with threats to send Plaintiff to the ASU for refusing to 14 cooperate, and spending ten days in the ASU— all in the context of an 15 impending release date that would be extended if Plaintiff did not cooperate. 16 It is the chilling effect of that combined activity that is protected by the First 17 Amendment. See Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001) (“[A] 18 retaliation claim may assert an injury no more tangible than a chilling effect 19 on First Amendment rights.”). 20 Here, the real dispute to the validity of a retaliation claim turns on 21 whether Plaintiff plausibly alleges the adverse action did not reasonably 22 advance a legitimate correctional goal. Defendants contend that he does not. 23 (ECF No. 20 at 17; ECF No. 26 at 4-5). Defendants challenge the Court’s 24 prior screening order, which found that Plaintiff met that burden “because he 25 alleges other inmates found in possession of an altered razor who do not use 26 it as a weapon are, and are required under CDCR regulations to be, merely 1 In support of its previous finding in the screening order, this Court cited 2 Sheppard v. Quillen, 840 F.3d 686, 692 (9th Cir. 2016). The Sheppard 3 inmate filed a § 1983 claim alleging an officer retaliated against him for 4 reporting that officer’s misconduct of using excessive force while escorting the 5 inmate to his holding cell. Id. The officer defendant claimed the inmate was 6 sent to segregation to protect the integrity of the investigation and to keep 7 the inmate safe. Id. at 691. The Sheppard court rejected those reasons as 8 valid penological goals in the context of a retaliation claim, calling them 9 generic justifications. The court reversed summary judgment in defendant’s 10 favor because the officer’s transfer of the inmate to segregation suggested 11 retaliation more than protection of the inmate or the investigation. Id. at 12 692. The Ninth Circuit explained that prison officials may not use a valid 13 procedure “as a subterfuge to obscure retaliation.” Id. 14 By analogy here, whether Defendants charged Plaintiff with possession 15 of dangerous contraband or a deadly weapon, they cannot use a valid process 16 to coverup an effort to punish an inmate for refusing to snitch on another 17 inmate or for bringing a successful complaint against a correctional officer. 18 Id. (citing Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003) (prison officials 19 may not abuse a valid procedure “as a cover or a ruse to silence and punish” 20 an inmate)). 21 If Defendants used the altered razor as a cover or ruse to gain 22 intelligence from Plaintiff and to punish him for succeeding in a complaint 23 against a correctional officer, then sending Plaintiff to the ASU did not serve 24 a valid penological purpose as Defendants suggest. An inmate sufficiently 25 alleges that conduct does not serve a legitimate correctional goal by arguing 26 the Defendants’ acts were a retaliatory, unreasonable exercise of prison 1 has done so here. See Wiseman, 2022 WL 2961670, at *13 (allegations that 2 officer retaliated against inmate by filing a “fraudulent” RVR “to punish” 3 Plaintiff for continuing to pursue his grievance suffice to plead the absence of 4 any legitimate penological reason); Watison, 668 F.3d at 1115 (plaintiff 5 sufficiently alleged absence of legitimate penological reasons by pleading that 6 prison official “filed a false disciplinary complaint against him”); Reed v. 7 Paramo, 2019 WL 398339, at *9 (S.D. Cal. Jan. 31, 2019) (plaintiff 8 sufficiently alleged absence of legitimate penological reasons where plaintiff 9 stated correctional officer only issued an RVR in retaliation to harass 10 plaintiff). 11 Defendants also challenge Plaintiff’s suggestion that CDCR policies 12 required them to charge Plaintiff with the lesser dangerous contraband 13 offense, arguing that no such requirement exists. (ECF No. 20 at 17-19). The 14 issue is not whether a regulation requires or permits Defendants to charge 15 Plaintiff’s altered razor as dangerous contraband or a deadly weapon. 16 Instead, a retaliatory motive for any charge that sent Plaintiff to the ASU is 17 determinative as to whether Plaintiff sufficiently alleges the lack of a 18 penological purpose in Defendants’ conduct. See generally Bruce, 351 F.3d at 19 1289 (“if defendants abused the gang validation procedure as a cover or a 20 ruse to silence and punish Bruce because he filed grievances, they cannot 21 assert that Bruce’s validation served a valid penological purpose, even though 22 he may have arguably ended up where he belonged”). 23 Defendants told Plaintiff that he could return to his cell if he cooperated 24 with them. While Plaintiff concedes he possessed dangerous contraband, he 25 nonetheless perceived a clear threat to be sent to the ASU in retaliation for 26 not cooperating and for succeeding in his prior complaint against a 1 speculative allegations. He attaches regulations that suggest his conduct 2 could have fit within the lesser charge of possessing dangerous contraband. 3 That information, coupled with Defendants’ threat to place Plaintiff in the 4 ASU, sufficiently challenges the existence of a valid correctional goal in 5 Defendants’ conduct. There could be no legitimate goal for threatening 6 Plaintiff in the manner he describes, assuming he can prove his retaliation 7 claim. 8 Once a plaintiff makes “a prima facie showing of retaliatory harm, the 9 burden shifts to the defendant official to demonstrate that even without the 10 impetus to retaliate he would have taken the action complained of . . . .” 11 Martin v. Hurtado, 07cv0598 BTM (RBB), 2008 WL 4145683, at *6 (S.D. Cal. 12 Sept. 3, 2008) (citing Hartman v. Moore, 547 U.S. 250, 260 (2006)). At this 13 stage, the Defendants’ discretionary right to characterize Plaintiff’s 14 possession of an altered razor, sitting on his shelf while he showered, as a 15 deadly weapon instead of dangerous contraband is insufficient to defeat 16 Plaintiff’s retaliation claim. 17 V. Conclusion 18 For the foregoing reasons, IT IS HEREBY RECOMMENDED that the 19 District Court issue an Order: (1) Approving and Adopting this Report and 20 Recommendation; and (2) GRANTING in part, and DENYING in part, 21 Defendants’ Motion to Dismiss. The motion should be GRANTED, and 22 Plaintiff’s retaliation claim barred, to the extent Plaintiff challenges his 23 conviction or term of confinement. Defendants’ motion should be DENIED, 24 and Plaintiff permitted to proceed with his retaliation claim pursuant to § 25 1983, based on allegations related to his conditions of confinement in the 26 ASU. 1 must be filed with the Court and served on all parties no later than 9 || February 14, 2023. The document should be captioned “Objections to Report 3 ||and Recommendation.” 4 IT IS FURTHER ORDERED that any reply to the objection shall be 5 filed with the Court and served on all parties no later than February 28, G 2023. The parties are advised that the failure to file objections within the 7 |\|specified time may waive the right to raise those objections on appeal of the g ||Court’s order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). 9 IT IS SO ORDERED. Dated: January 31, 2023 Mitel » [> Hon. Mitchell D. Dembin 12 United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27