Brown v. Gipson et al

Filing 53

FINDINGS and RECOMMENDATIONS Recommending Dismissal of Certain Claims and Defendants signed by Magistrate Judge Barbara A. McAuliffe on 12/12/2017. Referred to Judge Anthony W. Ishii. Objections to F&R due by 12/29/2017. (Sant Agata, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

WILLIAM BROWN,

12

Plaintiff,

13
14

v.

Case No. 1:13-cv-02084-AWI-BAM (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF
CERTAIN CLAIMS AND DEFENDANTS
[ECF No. 33]

W. RASLEY,
FOURTEEN-DAY DEADLINE

15

Defendant.

16
Plaintiff William Brown is a state prisoner proceeding pro se and in forma pauperis in this

17
18

civil rights action pursuant to 42 U.S.C. § 1983. On January 27, 2017, Plaintiff consented to

19

magistrate judge jurisdiction. (ECF No. 6.) Defendant W. Rasley has declined to United States

20

Magistrate Judge jurisdiction. (ECF No. 49.)
On May 22, 2017, the Court screened Plaintiff’s second amended complaint pursuant to

21
22

28 U.S.C. § 1915A and 28 U.S.C. § 1915(e)(2)(B), and found that it stated a cognizable claim for

23

retaliation in violation of the First Amendment, excessive force in violation of the Eighth

24

Amendment, and conversion against Defendant Rasely. (ECF No. 33.) The Court dismissed all

25

other claims and defendants for the failure to state a cognizable claim for relief. (Id. at 14.) The

26

Court indicated that jurisdiction existed under 28 U.S.C. § 636(c) based on the fact that Plaintiff

27

had consented to Magistrate Judge jurisdiction and no other parties had yet appeared. (See id. at

28

1.)
1

1 I.

Williams v. King

2

On November 9, 2017, the Ninth Circuit Court of Appeals ruled that 28 U.S.C. §

3

636(c)(1) requires the consent of all named plaintiffs and defendants, even those not served with

4

process, before jurisdiction may vest in a Magistrate Judge to dispose of a civil case. Williams v.

5

King, 875 F.3d 500 (9th Cir. 2017). Accordingly, the Court did not have jurisdiction to dismiss

6

the claims described in its May 22, 2017 order.

7

Here, no defendant was yet served at the time that the Court screened the second amended

8

complaint, and therefore none had appeared or consented to Magistrate Judge jurisdiction.

9

Because all defendants had not consented, the undersigned’s dismissal of Plaintiff’s claims is

10

invalid under Williams. Because the undersigned nevertheless stands by the analysis in the

11

previous screening order, she will below recommend to the District Judge that the non-cognizable

12

claims be dismissed.

13 II.

Screening Requirement

14

The Court is required to screen complaints brought by prisoners seeking relief against a

15

governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

16

Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

17

“frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that

18

“seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. §

19

1915(e)(2)(B).

20

A complaint must contain “a short and plain statement of the claim showing that the

21

pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

22

required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

23

conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

24

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that

25

each defendant personally participated in the deprivation of Plaintiff’s rights. Jones v. Williams,

26

297 F.3d 930, 934 (9th Cir. 2002).

27
28

Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings
liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d
2

1

1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be

2

facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer

3

that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v.

4

U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has

5

acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s

6

liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d

7

at 969.

8

III.

9

Complaint Allegations
Plaintiff’s complaint concerns events at CSP-Corcoran. Plaintiff names as defendants the

10

following individuals employed by the CDCR at CSP Corcoran: Warden Connie Gipson; Sgt. J.

11

Gonzales; Correctional Officer (C/O) A. Guzman; John Doe defendants.

12

Plaintiff alleges as follows: Plaintiff became a target for possible S.T.G. validation with

13

the B.G.F. out of retaliation when he wrote an article titled, “This Aint the Soft K.A.G.E.” by

14

William Brown, #T58106, editor at sfbayview.com. Plaintiff exposed CSP-Corcoran officials’

15

corporate malfeasance regarding prison conditions and neglect that caused the death of a fellow

16

striker, Christian Gomez, who was housed illegally in ASU (solitary confinement). CDCR

17

Director Matthew Cates contacted Warden Gipson and stated his dislike for Plaintiff for using

18

staff names as being responsible for causing a hunger strike, prison conditions, and the death of

19

Gomez. The phone call from Director Cates to Warden Gipson triggered an IGI/ISU

20

investigation.

21
22
23
24
25
26

Upon visiting Plaintiff, IGI officials asked Plaintiff, “Did you write this article in San
Francisco Bay View?” Plaintiff responded, “Yes I did.” IGI then stated as follows:
Well you’re in trouble now – because had Matthew Cates not called the
Warden Connie Gipson, we wouldn’t be here and you would have been
unnoticed. Now, we will be coming at you, and because you mentioned the
names of staff and even used other “Black Panther” (B.G.F.) members’
names, such as “Kevin Rasheed Johnson” et al., we will validate you as a
possible member from Oakland. We also know your nickname is Pyeface
and you’re a rapper of “High Side Records.”

27
28

(ECF No. 31, p. 3 ) (errors in original).
3

1

On June 25 or 26, 2013, the United K.A.G.E. Brothers submitted demands to CSP-

2

Corcoran administration and the media editor at sfbayview.com, that Plaintiff and others would

3

engage in a July 8, 2013 mass hunger strike.

4

On June 26, 2013, C/O Guzman subjected Plaintiff to a body search. This was a racist stop

5

and frisk, based upon an earlier confrontation regarding C/O Guzman et al. always harassing New

6

Afrikan/Black prisoners via intrusive body search. While under Sgt. Gonzales’ supervision, C/O

7

Guzman used force upon Plaintiff. C/O Guzman then fabricated a 115 RVR to cover-up his

8

illegal act and concerted efforts in collusion with his coworkers to repress, steal, or destroy “green

9

dot” account numbers worth over $3,000 within Plaintiff’s green dot money pack account.

10
11

In June 2013, Plaintiff was placed in ASU (solitary confinement) for making a First
Amendment complaint known against C/O Guzman et al.

12
13

On July 8, 2013, Plaintiff and others engaged in a mass hunger strike. On July 10, 2013,
Plaintiff was given a false 115 RVR for S.T.G. activity regarding the mass hunger strike.

14

While housed in ASU, Sgt. Rasley et al. used excessive force via smoke grenade thrown

15

into Plaintiff’s cell, #134, because those ASU officials claim that Plaintiff is always speaking out,

16

and complaining to supervisors (A.T.G.), grand jury, etc., 602 forms. Sgt. Rasley, in collusion

17

with other supervisor state agents, were to “hush” Plaintiff by isolating him away from other

18

complaining inmates and out of the entry/exit of state officials (such as the media, grand jury,

19

Attorney Generals who were visiting CSP-Corcoran due to the mass hunger strike, and other

20

related prison conditions). Force was used to move Plaintiff to another cell. Sgt. Rasley took

21

illegal possession of Plaintiff’s television and other package items because Plaintiff demanded his

22

rights via peaceful protest.

23

Cpt. Cenerios submitted a 128B closure report to Warden Gipson et al., which stated,

24

“Subject Brown T58106 instigated other prisoners in a mass hunger strike, so it is recommended

25

that he be transferred to another state prison.” Plaintiff was not listed as having any safety and

26

security, or enemy concerns. Plaintiff was housed in ASU as a non-disciplinary status prisoner,

27

and his adequate housing level via way of family hardship, was level 4270.

28

///
4

1
2

Plaintiff submitted a 602 against his illegal transfer, but he was subjected to being
transferred to Pelican Bay State Prison (“PBSP”) Level 4 180 max prison.

3

Plaintiff asserts the following violations: (1) his First Amendment right to peacefully

4

protest and/or religious right to assemble; (2) his Fourth Amendment property rights; (3) his

5

Fifth, Sixth, and Eighth Amendment rights against cruel and unusualness; (4) the Thirteenth

6

Amendment, due to mass incarceration and treatment as an illegal citizen and help captive; (5) the

7

Equal Protection of the Fourteenth Amendment and Due Process.

8
9
10

Plaintiff seeks compensatory and punitive damages, an injunction and restraining order
regarding housing transfers, and other relief as the court deems relevant.
IV.

Discussion

11

1.

12

Plaintiff complains of negative consequences arising from him exercising his First

13

Amendment rights to protest and assemble. Accordingly, the Court construes his allegations as a

14

claim for retaliation in violation of the First Amendment.

15

Right to Protest

Allegations of retaliation against a prisoner’s First Amendment rights to speech or to

16

petition the government may support a section 1983 claim. Silva v. Di Vittorio, 658 F.3d 1090,

17

1104 (9th Cir. 2011); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also

18

Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807

19

(9th Cir. 1995). “Within the prison context, a viable claim of First Amendment retaliation entails

20

five basic elements: (1) An assertion that a state actor took some adverse action against an inmate

21

(2) because of (3) that prisoner’s protected conduct, and that such action did not reasonably

22

advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir.

23

2005); accord Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012); Silva, 658 F.3d at

24

1104; Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009).

25

Plaintiff asserts that he was “targeted” for gang validation in retaliation for engaging in

26

protected speech, specifically writing an article that was critical of prison officials. Plaintiff does

27

not allege sufficient facts to state any retaliation claim under the First Amendment. California

28

regulations governing gang validation procedures, Cal. Cod. Reg. § 3378, require prison officials
5

1

to have at least three pieces of evidence supporting a gang connection, one of which must provide

2

a “direct link” to a known gang member. California’s process of identifying suspected gang

3

members and associates has consistently been found by the Ninth Circuit to serve legitimate

4

penological interests. See, e.g., Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003) (“It is clear . . .

5

that prisons have a legitimate penological interest in stopping prison gang activity.”). In this case,

6

Plaintiff alleges that IGI officials told him during an investigation that information in his article,

7

such as the use of names of B.G.F. members, was used to validate Plaintiff as a possible gang

8

member. Although gang validation may be an adverse action, Plaintiff’s own allegations were

9

that the validation process was initiated for a legitimate penological purpose, and based on

10

uncontested facts (the use of known gang members’ names and information in his article).

11

Likewise, Plaintiff’s allegations regarding the investigation by IGI officials into Plaintiff’s

12

activities and possible gang-affiliation status, as prompted by Director Cates contacting Warden

13

Gipson, also do not state any claim for retaliation in violation of the First Amendment. Being

14

interviewed as part of an investigation does not constitute an adverse action against an inmate.

15

Further, information-gathering as part of an investigation into a mass hunger strike, prison

16

conditions, potential prison gang activity, and an inmate’s death serves the legitimate correctional

17

goals of promoting the safety and security of the institution, inmates, and staff. See Bruce v. Ylst,

18

351 F.3d 1283, 1289 (9th Cir. 2003) (gathering evidence on B.G.F. affiliates serves a prison’s

19

legitimate penological interest in stopping prison gang activity); Stefanow v. McFadden, 103 F.3d

20

1466, 1472 (1996) (recognizing prison security as a legitimate and “compelling” penological

21

interest).

22

Plaintiff’s allegations about his transfer to ASU are not sufficient to state a claim for

23

retaliation in violation of the First Amendment. Plaintiff alleges that he was transferred to ASU

24

for making complaints about staff. However, he does not describe who was responsible for his

25

transfer. To state a claim, Plaintiff must allege facts demonstrating the existence of a link, or

26

causal connection, between each defendant’s actions or omissions and a violation of his federal

27

rights. Lemire v. California Dep’t of Corr. and Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013);

28

Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011). Nor does Plaintiff explain how long he
6

1

was in the ASU, or whether it was done for any legitimate penological purpose, such as pursuant

2

to an investigation or to facilitate a transfer to a different housing unit.

3

Plaintiff’s allegations that he was transferred to another institution based on a 128B

4

closure report to Warden Gipson also do not state any claim for retaliation in violation of the First

5

Amendment. According to Plaintiff, the report stated he was transferred for instigating a mass

6

hunger strike. Plaintiff does not dispute this fact; he affirmatively asserts that he is involved in the

7

United Kings Against Genocidal Environments (K.A.G.E) Brothers and was involved in making

8

demands on behalf of that group and organizing a mass hunger strike. While engaging in a hunger

9

strike may be protected conduct depending on the totality of the circumstances, instigating a mass

10

hunger strike is disruptive to prison safety and security, and is not protected conduct under the

11

First Amendment. See Arredondo v. Drager, No. 14-CV-04687-HSG, 2016 WL 3755958, at *7-8,

12

15 (N.D. Cal. July 14, 2016) (collecting cases); see also Fulton v. Lamarque, No. C 03-4709

13

RMW (PR), 2008 WL 901860, at *5 (N.D. Cal. Mar. 31, 2008) (prisoner has no First

14

Amendment right to instigate a strike).

15

Plaintiff also alleges that a smoke grenade was thrown into his cell by Sgt. Rasely because

16

he was making complaints and filing 602 forms, according to ASU officials. Plaintiff further

17

alleges that Sgt. Rasely took his television and other package items as a punishment for Plaintiff

18

engaging in peaceful protests. Liberally construed, these allegations against Sgt. Rasely are

19

sufficient to state a claim for retaliation in violation of the First Amendment.

20

2.

Property

21

Plaintiff claims a violation of his Fourth Amendment property rights. A prisoner is not

22

protected by the Fourth Amendment against the seizure, destruction or conversion of his property.

23

Taylor v. Knapp, 871 F.2d 803, 806 (9th Cir.), cert. denied, 493 U.S. 868 (1989). Nor is there a

24

due process protection implicated here; the availability of an adequate state post-deprivation

25

remedy, e.g., a state tort action, precludes relief because it provides sufficient procedural due

26

process. Zinermon v. Burch, 494 U.S. 113, 128 (1990) (where state cannot foresee, and therefore

27

provide meaningful hearing prior to, deprivation statutory provision for post-deprivation hearing

28

or common law tort remedy for erroneous deprivation satisfies due process); King v. Massarweh,
7

1

782 F.2d 825, 826 (9th Cir.1986) (same). California law provides such an adequate post-

2

deprivation remedy. Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir.1994) (citing Cal. Gov't

3

Code §§ 810-895).
The elements of a conversion are: (1) the plaintiff’s ownership or right to possession of

4
5

the property at the time of the conversion; (2) the defendant’s conversion by a wrongful act or

6

disposition of property rights; and (3) damages.” Greka Integrated, Inc. v. Lowrey, 133 Cal. App.

7

4th 1572, 1581, 35 Cal. Rptr. 3d 684 (2005) (internal quotation marks omitted); see also G.S.

8

Rasmussen & Assocs., Inc. v. Kalitta Flying Serv., Inc., 958 F.2d 896, 906 (9th Cir.1992).

9

“Because conversion is a strict liability tort, questions of the defendant’s good faith, lack of

10

knowledge, motive, or intent are not relevant.” Gilman v. Dalby, 176 Cal. App. 4th 606, 615 n. 1,

11

98 Cal. Rptr. 3d 231 (2009).

12
13

Plaintiff may proceed under California state law for the deprivation of his television and
other package items that he asserts were improperly confiscated by Sgt. Rasely.
However, his claim against C/O Guzman for stealing or destroying “green dot” account

14
15

numbers are not related to this action, and therefore the Court will recommend that Plaintiff

16

cannot proceed on that claim in this action. As Plaintiff has been repeatedly warned, he may not

17

bring unrelated claims against unrelated parties in a single action. Fed. R. Civ. P. 18(a), 20(a)(2);

18

Owens v. Hinsley, 653 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 507 F.3d 605, 607 (7th

19

Cir. 2007).
Cruel and Unusual Punishment1

20

3.

21

The unnecessary and wanton infliction of pain violates the Cruel and Unusual

22

Punishments Clause of the Eighth Amendment. Hudson v.McMillian, 503 U.S. 1, 5 (1992)

23

1

24
25
26
27
28

Plaintiff seeks to state a claim under the Fifth and Sixth Amendment for “cruel and unusualness.” The
protection against cruel and unusual punishment of prisoners is governed by the Eighth Amendment.
The Fifth Amendment permits an individual not to answer official questions put to him in any proceeding,
civil or criminal, formal or informal, where the answers might incriminate him in future criminal
proceedings. Baxter v. Palmigiano, 425 U.S. 308, 316 (1976). The Sixth Amendment provides that “[i]n
all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his
defence.” U.S. Const. amend. VI; see also Gideon v. Wainwright, 372 U.S. 335, 342–43 (1963) (holding
that Sixth Amendment right to counsel extends to state court proceedings through the Fourteenth
Amendment). Plaintiff’s allegations do not implicate these rights.

8

1

(citations omitted). For claims arising out of the use of excessive physical force, the issue is

2

“whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously

3

and sadistically to cause harm.” Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam) (citing

4

Hudson, 503 U.S. at 7) (internal quotation marks omitted); Furnace v. Sullivan, 705 F.3d 1021,

5

1028 (9th Cir. 2013). The objective component of an Eighth Amendment claim is contextual and

6

responsive to contemporary standards of decency, Hudson, 503 U.S. at 8 (quotation marks and

7

citation omitted), and although de minimis uses of force do not violate the Constitution, the

8

malicious and sadistic use of force to cause harm always violates contemporary standards of

9

decency, regardless of whether or not significant injury is evident, Wilkins, 559 U.S. at 37-8

10

(citing Hudson, 503 U.S. at 9-10) (quotation marks omitted); Oliver v. Keller, 289 F.3d 623, 628

11

(9th Cir. 2002).

12

Plaintiff’s allegations are insufficient to state a claim for an Eighth Amendment violation

13

against Sgt. Gonzales and C/O Guzman. Although Plaintiff alleges that “force” was used by C/O

14

Guzman under Sgt. Gonzales’s supervision, Plaintiff does not allege any facts about the force,

15

and has not shown that it was used sadistically or maliciously to cause harm. Therefore, the Court

16

will recommend that these claims be dismissed.

17

Liberally construed, Plaintiff has alleged sufficient facts that Sgt. Rasley subjected him to

18

excessive force, when he alleged that Sgt. Rasley threw a smoke grenade into Plaintiff’s cell

19

because of Plaintiff’s complaints and grievances, and not due to any legitimate need for force.

20

4.

Thirteenth Amendment

21

Plaintiff generally alleges that his incarceration violates the Thirteenth Amendment. The

22

Thirteenth Amendment proscribes slavery and involuntary servitude “except as a punishment for

23

crime whereof the party shall have been duly convicted,” and empowers Congress to enforce the

24

article. U.S. Const. amend. 13. Where a person is duly tried, convicted, sentenced, and

25

imprisoned for crime in accordance with law, no issue of peonage or involuntary servitude arises.

26

Draper v. Rhay, 315 F.2d 193, 197 (9th Cir. 1963), cert. den., 375 U.S. 982 (1964). Even if

27

Plaintiff had been required to work as a penalty for the disciplinary violation, such a work

28

requirement would have been imposed in accordance with prison rules, and thus the Thirteenth
9

1

Amendment would be inapplicable. Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir.1994). Plaintiff

2

has alleged no facts showing any possibility of a violation of the Thirteenth Amendment.

3

5.

Fourteenth Amendment Equal Protection

4

Plaintiff generally alleges a violation of the Equal Protection Clause of the Fourteenth

5

Amendment. The Equal Protection Clause requires the state to treat all similarly-situated people

6

equally. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). To prevail on an

7

Equal Protection claim brought under § 1983, a plaintiff must allege facts plausibly showing that

8

“the defendants acted with an intent or purpose to discriminate against the plaintiff based upon

9

membership in a protected class.” See Thornton v. City of St. Helens, 425 F.3d 1158, 1166 (9th

10

Cir. 2005) (quoting Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001)). Under this

11

theory of equal protection, the plaintiff must show that the defendant’s actions were a result of the

12

plaintiff's membership in a suspect class. Id. Mere indifference to the effect of a decision on the

13

member of a protected class is not sufficient to show discriminatory intent, nor are conclusory

14

statements of bias. Id. at 1166-67. Plaintiff may also allege an equal protection violation by

15

demonstrating that he “received different treatment from that received by others similarly

16

situated” and that the different treatment was due to his membership in a protected class. See

17

Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998).

18

Plaintiff alleges that C/O Guzman subjected him to a racist body search, based upon

19

earlier confrontations between C/O Guzman and New Afrikan/Black prisoners. These conclusory

20

allegations are insufficient to state a claim for a violation of the Equal Protection Clause. Plaintiff

21

asserts that C/O Guzman has a history “harassing” searches, but there are no facts to establish that

22

he targeted any particular class of inmates. Nor are there facts from which the court can infer

23

discriminatory intent, such as the use of racial slurs or other discriminatory language. Plaintiff

24

has also not alleged any facts showing disparate treatment of any classes of inmates.

25

6.

Fourteenth Amendment Due Process

26

Plaintiff also generally alleges a violation of his right to due process. To the extent

27

Plaintiff’s claim is based upon his allegations of false 115 RVRs, he has not stated sufficient facts

28

to bring any cognizable claim.
10

1

“Prison disciplinary proceedings are not part of a criminal prosecution, and the full

2

panoply of rights due a defendant in such proceedings does not apply,” Wolff, 418 U.S. at 556.

3

With respect to prison disciplinary proceedings, the minimum procedural requirements that must

4

be met are: (1) written notice of the charges; (2) at least 24 hours between the time the prisoner

5

receives written notice and the time of the hearing, so that the prisoner may prepare his defense;

6

(3) a written statement by the fact finders of the evidence they rely on and reasons for taking

7

disciplinary action; (4) the right of the prisoner to call witnesses and present documentary

8

evidence in his defense, when permitting him to do so would not be unduly hazardous to

9

institutional safety or correctional goals; and (5) legal assistance to the prisoner where the

10

prisoner is illiterate or the issues presented are legally complex. Id. at 563-71. Confrontation and

11

cross examination are not generally required. Id. at 567. As long as the five minimum Wolff

12

requirements are met, due process has been satisfied. Walker v. Sumner, 14 F.3d 1415, 1420 (9th

13

Cir. 1994).

14

Although Plaintiff has alleged that he was given a false RVR and housed in ASU, he has

15

alleged no facts showing that any of the procedural requirements for the prison disciplinary

16

proceedings were not met. The falsification of a disciplinary report does not state a stand-alone

17

constitutional claim. Canovas v. California Dept. of Corrections, 2:14-cv-2004 KJN P, 2014 WL

18

5699750, n.2 (E.D. Cal. Oct. 30, 2014); see e.g., Lee v. Whitten, 2:12-cv-2104 GEB KJN P, 2012

19

WL 4468420, *4 (E.D. Cal. Sept. 5, 2012). There is no constitutionally guaranteed immunity

20

from being falsely or wrongly accused of conduct which may result in the deprivation of a

21

protected liberty interest. Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989); Freeman v.

22

Rideout, 808 F.2d 949, 951 (2d Cir. 1986). “Specifically, the fact that a prisoner may have been

23

innocent of disciplinary charges brought against him and incorrectly accused does not raise a due

24

process issue. The Constitution demands due process, not error-free decision-making.” Jones v.

25

Woodward, 1:14-cv-2084-SAB (PC), 2015 WL 1014257, *2 (E.D. Cal. Mar. 6, 2015) (citing

26

Ricker v. Leapley, 25 F.3d 1406, 1410 (8th Cir. 1994); McCrae v. Hankins, 720 F.2d 863, 868

27

(5th Cir. 1983)). Therefore, Plaintiff fails to state a claim regarding any false 115 RVR

28

disciplinary report.
11

1

7.

2

As noted above, Plaintiff makes allegations concerning events at Pelican Bay State Prison,

Venue

3

and has attached documents related to such allegations. Although the allegations are not entirely

4

clear and no specific defendants are named, he appears to challenge the provision of religious

5

accommodations in 2015 and 2016.

6

The federal venue statute requires that a civil action, other than one based on diversity

7

jurisdiction, be brought only in “(1) a judicial district where any defendant resides, if all

8

defendants reside in the same state, (2) a judicial district in which a substantial part of the events

9

or omissions giving rise to the claim occurred, or a substantial part of the property that is the

10

subject of the action is situated, or (3) a judicial district in which any defendant may be found, if

11

there is no district in which the action may be otherwise brought.” 28 U.S.C. § 1391(b). The

12

decision to transfer venue of a civil action under § 1404(a) lies soundly within the discretion of

13

the trial court. Jones v. GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000).

14

The original complaint alleged constitutional violations that occurred at CSP-Corcoran, in

15

the Eastern District of California. Here, the Court recommends denying transfer any of Plaintiff’s

16

claims to the appropriate district. Should Plaintiff seek to challenge the conduct of correctional

17

officials at Pelican Bay State Prison, he should file separate actions in the appropriate district.

18

8.

Injunctive Relief

19

Plaintiff seeks an order of transfer regarding his housing. Because placement of inmates in

20

particular facilities is often a matter of security, the Court may not order Plaintiff’s transfer.

21

Moreover, there is no constitutional right to be housed in a particular unit in prison or the facility

22

of one’s choice. See Meachum v. Fano, 427 U.S. 215, 255 (1976); McCune v. Lile, 536 U.S. 24,

23

38 (2002).

24

///

25

///

26

///

27

///

28

///
12

1

V.

Conclusion and Recommendation

2

For the reasons explained above, IT IS HEREBY RECOMMENDED that:

3

1.

This action proceed on Plaintiff’s claim for retaliation in violation of the First

4

Amendment, excessive force in violation of the Eighth Amendment, and conversion against Sgt.

5

Rasely; and

6

2.

7

for relief.

8
9

All other claims and defendants be dismissed for failure to state a cognizable claim

These Findings and Recommendations will be submitted to the United States District
Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen

10

(14) days after being served with these Findings and Recommendations, the parties may file

11

written objections with the Court. The document should be captioned “Objections to Magistrate

12

Judge’s Findings and Recommendations.” The parties are advised that failure to file objections

13

within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772

14

F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

15
16
17
18

IT IS SO ORDERED.
Dated:

/s/ Barbara

December 12, 2017

A. McAuliffe

_

UNITED STATES MAGISTRATE JUDGE

19
20
21
22
23
24
25
26
27
28
13