Patkins v. Alomari et al

Filing 15

FINDINGS and RECOMMENDATION for Plaintiff to Proceed Only on His Retaliation Claims Against Davies and Vargas (Claims 1 & 2) 13 , signed by Magistrate Judge Jennifer L. Thurston on 9/4/15: 30-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DAVID C. PATKINS,
Plaintiff,

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v.

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Case No. 1:14-cv-00674-JLT (PC)
FINDINGS AND RECOMMENDATION
FOR PLAINTIFF TO PROCEED ONLY ON
HIS RETALIATION CLAIMS AGAINST
DAVIES AND VARGAS (CLAIMS 1 & 2)

ALOMARI, et al.,
(Doc. 13)
Defendants.

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30-DAY DEADLINE

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Plaintiff filed the complaint in this action on May 7, 2014. (Doc. 1.)1 The Court screened

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the complaint and dismissed it with leave to amend. (Doc. 10.) The First Amended Complaint is
before the Court for screening. (Doc. 13.)
I.

A.

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Screening Requirement

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

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FINDINGS

governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
frivolous, malicious, fail to state a claim upon which relief may be granted, or that seek monetary
relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2); 28 U.S.C.

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All references to pagination of specific documents pertain to those as indicated on the upper right corners via the
CM/ECF electronic court docketing system.

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§ 1915(e)(2)(B)(i)-(iii).
Section 1983 “provides a cause of action for the deprivation of any rights, privileges, or

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immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp.

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Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of

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substantive rights, but merely provides a method for vindicating federal rights conferred

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elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

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To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a

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right secured by the Constitution or laws of the United States was violated and (2) that the alleged

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violation was committed by a person acting under the color of state law. See West v. Atkins, 487

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U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).

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B.

Summary of the First Amended Complaint

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Plaintiff complains of acts that occurred while he was housed at California Correctional

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Institute (“CCI”) in Tehachapi, California. Plaintiff names Appeals Coordinator Alomari,

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Correctional Officers Vargas and Davies, Sergeant Davis, CCII M. Nipper, and Associate

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Wardens Reed and Hughes as Defendants in this action.

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Plaintiff alleges that Defendants obstructed his access to the courts by preventing him

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from effectively utilizing the institutional grievance procedure at CCI and that he was retaliated

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against for attempting to do so. Plaintiff delineates the following claims for the violation of his

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rights against various of the Defendants based on a variety of factual allegations: (1) retaliation

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against Davies (Doc. 1, pp. 8-11); (2) retaliation against Vargas (id., at pp. 12-14); (3) retaliation

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against Alomari (id., at pp. 15-18); (4) impairment of access to courts against Alomari (id.); (5)

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retaliation against Alomari (id., at pp. 19-23); (6) retaliation against CCII Nipper (id.); (7)

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retaliation against Alomari (id., at pp. 23-27); (8) impairment of access to courts against Alomari

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(id.); (9) retaliation and due process against Sgt. Davis (id., at pp. 27-33); (10) due process against

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Ass’t. Warden Reed (id.); (11) due process against Ass’t. Warden Hughes (id.); (12) due process

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against CCII Nipper (id.); (13) retaliation against Alomari (id.); and (14) impairment of access to

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courts against Alomari (id.). The details of Plaintiff's allegations against each Defendant are

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discussed where applicable below.
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As discussed in greater detail below, Plaintiff was previously given the applicable

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standards for the claims that it appeared he intended to make and he was given leave to file an

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amended complaint. Plaintiff has stated some cognizable claims upon which he should be

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allowed to proceed. However, it appears that he is unable to cure the deficiencies of his other

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claims such that they should be dismissed with prejudice.

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C.

Pleading Requirements
1. Federal Rule of Civil Procedure 8(a)

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"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited

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exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534

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U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). A complaint must contain "a short and plain

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statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. Pro. 8(a).

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"Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and

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the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512.

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Detailed factual allegations are not required, but A[t]hreadbare recitals of the elements of a

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cause of action, supported by mere conclusory statements, do not suffice.@ Ashcroft v. Iqbal, 556

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U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

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Plaintiff must set forth Asufficient factual matter, accepted as true, to >state a claim that is

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plausible on its face.=@ Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual

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allegations are accepted as true, but legal conclusions are not. Iqbal. at 678; see also Moss v. U.S.

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Secret Service, 572 F.3d 962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557.

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While Aplaintiffs [now] face a higher burden of pleadings facts . . . ,@ Al-Kidd v. Ashcroft,

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580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally

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and are afforded the benefit of any doubt. Blaisdell v. Frappiea, 729 F.3d 1237, 1241 (9th Cir.

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2013); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). However, "the liberal pleading

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standard . . . applies only to a plaintiff's factual allegations," Neitze v. Williams, 490 U.S. 319, 330

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n.9 (1989), "a liberal interpretation of a civil rights complaint may not supply essential elements

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of the claim that were not initially pled," Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251,

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1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982), and courts
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are not required to indulge unwarranted inferences, Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677,

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681 (9th Cir. 2009) (internal quotation marks and citation omitted). The “sheer possibility that a

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

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defendant’s liability” fall short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129

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S. Ct. at 1949; Moss, 572 F.3d at 969. Plaintiff must identify specific facts supporting the

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existence of substantively plausible claims for relief, Johnson v. City of Shelby, __ U.S. __, __,

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135 S.Ct. 346, 347 (2014) (per curiam) (citation omitted).

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2. Linkage Requirement
The Civil Rights Act under which this action was filed provides:

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Every person who, under color of [state law] . . . subjects, or causes to
be subjected, any citizen of the United States . . . to the deprivation of
any rights, privileges, or immunities secured by the Constitution . . .
shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress.

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42 U.S.C. ' 1983. The statute plainly requires that there be an actual connection or link between

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the actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See

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Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

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(1976).
Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or

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other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d

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1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006);

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Jones, 297 F.3d at 934. “Section 1983 is not itself a source of substantive rights, but merely

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provides a method for vindicating federal rights elsewhere conferred.” Crowley v. Nevada ex rel.

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Nevada Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012) (citing Graham v. Connor, 490 U.S.

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386, 393-94 (1989)) (internal quotation marks omitted). To state a claim, Plaintiff must allege

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facts demonstrating the existence of a link, or causal connection, between each defendant’s

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actions or omissions and a violation of his federal rights. Lemire v. California Dep’t of Corr. and

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Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013); Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir.

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2011).

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The Ninth Circuit has held that A[a] person >subjects= another to the deprivation of a
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constitutional right, within the meaning of section 1983, if he does an affirmative act, participates

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in another=s affirmative acts or omits to perform an act which he is legally required to do that

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causes the deprivation of which complaint is made.@ Johnson v. Duffy, 588 F.2d 740, 743 (9th

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Cir. 1978). Under section 1983, Plaintiff must demonstrate that each defendant personally

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participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

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D.

Claims for Relief
1. Retaliation

Prisoners have a First Amendment right to file grievances against prison officials and to
be free from retaliation for doing so. Waitson v. Carter, 668 F.3d 1108, 1114-1115 (9th Cir.

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2012); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir.2009). A retaliation claim has five

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elements. Id. at 1114.

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There are five elements that a plaintiff's claim for retaliation must address. First, the

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plaintiff must allege that the retaliated-against conduct is protected. Id. The filing of an inmate

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grievance is protected conduct, Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005), as are the

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rights to speech or to petition the government, Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir.

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1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65

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F.3d 802, 807 (9th Cir. 1995). Second, the plaintiff must show the defendant took adverse action

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against the plaintiff. Rhodes, at 567. Third, the plaintiff must allege a causal connection between

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the adverse action and the protected conduct. Waitson, 668 F.3d at 1114. Fourth, the plaintiff

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must allege that the “official’s acts would chill or silence a person of ordinary firmness from

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future First Amendment activities.” Robinson, 408 F.3d at 568 (internal quotation marks and

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emphasis omitted). Fifth, the plaintiff must allege “that the prison authorities’ retaliatory action

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did not advance legitimate goals of the correctional institution. . . .” Rizzo v. Dawson, 778 F.2d

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527, 532 (9th Cir.1985).

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It bears repeating that while Plaintiff need only allege facts sufficient to support a

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plausible claim for relief, the mere possibility of misconduct is not sufficient, Iqbal, 556 U.S. at

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678-79, and the Court is “not required to indulge unwarranted inferences,” Doe I v. Wal-Mart

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Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).
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The conduct identified by Plaintiff as retaliatory must have been motivated by his engaging in a

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protected activity, and the conduct must not have reasonably advanced a legitimate penological

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goal. Brodheim, 584 F.3d at 1271-72 (citations omitted). Thus, mere allegations that Plaintiff

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engaged in protected activity, without knowledge resulting in animus by a Defendant, is

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insufficient to show that Plaintiff=s protected activity was the motivating factor behind a

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Defendant’s actions.
a. Plaintiff's Claims

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(1) Claim 1 – Davies (Doc. 1, pp. 8-11)

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In this claim, Plaintiff alleges that he submitted an inmate appeal on March 25, 2012 and

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the very next day, Davies and Vargas ransacked his cell and Plaintiff was subsequently accused

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of damaging state property and was threatened that he would have to pay for it. Plaintiff further

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alleges that he was called a "trouble-maker" and that rumors were started by the Porter of

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Building 4 that "something might happen to complainer's property." On April 23, 2012, Plaintiff

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submitted a property appeal to Davies who refused to sign it, send it, log it, and did not submit it

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to the appeals coordinator. This appeal "has permanently been disposed of."

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These allegations state a cognizable retaliation claim against Davies upon which Plaintiff
should be allowed to proceed.
(2) Claim 2 -- C/O I Vargas (Doc. 1, pp. 12-14)

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In this claim, Plaintiff alleges that he arrived at CCI on March 21, 2012. At that time, he

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only received one opportunity to shower in eleven days. Sgt. Davis said that inmates should have

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one shower every three days, but the prison staff did not follow this direction. On June 22, 2012,

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Plaintiff gave Vargas a grievance regarding the showers and the next day Vargas and Davies

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ransacked his cell.

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These allegations state a cognizable retaliation claim against Vargas upon which Plaintiff
should be allowed to proceed.
(3) Claim 3 -- Alomari (Doc. 1, pp. 15-18)
In this claim, Plaintiff alleges that Alomari variously screened out, cancelled, permanently
destroyed, and/or inhibited his ability to file and process a number of inmate appeals.
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As discussed in the prior screening order, A[a prison] grievance procedure is a procedural

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right only, it does not confer any substantive right upon the inmates.@ Azeez v. DeRobertis, 568 F.

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Supp. 8, 10 (N.D. Ill. 1982) accord Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993); see

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also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no liberty interest in processing of

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appeals because no entitlement to a specific grievance procedure); Massey v. Helman, 259 F.3d

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641, 647 (7th Cir. 2001) (existence of grievance procedure confers no liberty interest on

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prisoner); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). AHence, it does not give rise to a

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protected liberty interest requiring the procedural protections envisioned by the Fourteenth

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Amendment.@ Azeez v. DeRobertis, 568 F. Supp. at 10; Spencer v. Moore, 638 F. Supp. 315, 316

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(E.D. Mo. 1986). Actions in reviewing prisoner=s administrative appeal cannot serve as the basis

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for liability under a ' 1983 action. Buckley, 997 F.2d at 495.
As discussed in the prior screening order, while Plaintiff does not have a substantive right

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in the processing and/or handling of his inmate appeals, he is not prohibited from raising the

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difficulties he has had in attempting to fully exhaust issues raised in his inmate appeals if

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Plaintiff's failure to exhaust is raised as an affirmative defense to any such claim raised in a case

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that is filed with a court. However, he is unable to state a cognizable claim based on deficient

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handling and/or processing of his inmate appeals -- even when cloaked under the title of

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retaliation and allegedly motivated by his previous filing of inmate appeals. Thus, since he has

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neither a liberty interest, nor a substantive right in inmate appeals, Plaintiff fails, and is unable to

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state a cognizable retaliation claim against Alomari for the processing and/or reviewing of his 602

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inmate appeals. This claim should be dismissed with prejudice.

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///

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(4) Claim 5 -- Alomari (Doc. 1, pp. 19-23)

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In this claim, Plaintiff once again alleges that Alomari variously screened out, cancelled,

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permanently destroyed, and/or inhibited his ability to file and process a number of inmate

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appeals. As previously discussed, Plaintiff is unable to state a cognizable claim based on

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deficient handling and/or processing of his inmate appeals -- even when cloaked under the title of

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retaliation and allegedly motivated by his previous filing of inmate appeals. Thus, since he has
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neither a liberty interest, nor a substantive right in inmate appeals, Plaintiff fails, and is unable to

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state a cognizable retaliation claim against AC Alomari for the processing and/or reviewing of his

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602 inmate appeals. This claim should be dismissed with prejudice.

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(5) Claim 6 -- Nipper (Doc. 1, pp. 19-23)

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In this claim, Plaintiff once again alleges that Nipper variously screened out, cancelled,

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permanently destroyed, and/or inhibited his ability to file and process a number of inmate

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appeals. As previously discussed, Plaintiff is unable to state a cognizable claim based on

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deficient handling and/or processing of his inmate appeals -- even when cloaked under the title of

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retaliation and allegedly motivated by his previous filing of inmate appeals. Thus, since he has

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neither a liberty interest, nor a substantive right in inmate appeals, Plaintiff fails, and is unable to

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state a cognizable retaliation claim against Nipper for the processing and/or reviewing of his 602

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inmate appeals. This claim should be dismissed with prejudice.

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(6) Claim 7 -- Alomari (Doc. 1, pp. 23-27)

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In this claim, Plaintiff once again alleges that Alomari variously screened out, cancelled,

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permanently destroyed, and/or inhibited his ability to file and process a number of inmate

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appeals. As previously discussed, Plaintiff is unable to state a cognizable claim based on

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deficient handling and/or processing of his inmate appeals -- even when cloaked under the title of

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retaliation and allegedly motivated by his previous filing of inmate appeals. Thus, since he has

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neither a liberty interest, nor a substantive right in inmate appeals, Plaintiff fails, and is unable to

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state a cognizable retaliation claim against Alomari for the processing and/or reviewing of his 602

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inmate appeals. This claim should be dismissed with prejudice.

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(7) Claim 9 --Davis (Doc. 1, pp. 27-33)

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Plaintiff alleges that on June 4, 2012, he was the victim of excessive force by a

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correctional officer who is not named as a defendant in this action. (Id., at pp. 27-28.)

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Thereafter, Plaintiff filed an inmate appeal, which he ended up withdrawing on representation by

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a correctional lieutenant that in exchange for Plaintiff doing so along with giving a video

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representation that no investigation was necessary, Plaintiff could return to normal prison

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programming. (Id., at p. 28.) However, when he was placed in a holding cage after giving the
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video, Plaintiff was approached by Davis who insisted that Plaintiff sign the CDC-1140, fear

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order. (Id.) When Plaintiff refused to sign it, explaining that it was all over and he was "just

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waiting to go back to yard," Davis told Plaintiff that he was going to Ad Seg because Plaintiff had

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filed a staff misconduct appeal. (Id.) These allegations state a cognizable retaliation claim against

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Davis.

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(8) Claim 13 -- Alomari (Doc. 1, pp. 27-33)

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In this claim, Plaintiff once again alleges that Alomari variously screened out, cancelled,

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permanently destroyed, and/or inhibited his ability to file and process inmate appeals. As

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previously discussed, Plaintiff is unable to state a cognizable claim based on deficient handling

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and/or processing of his inmate appeals -- even when cloaked under the title of retaliation and

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allegedly motivated by his previous filing of inmate appeals. Thus, since he has neither a liberty

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interest, nor a substantive right in inmate appeals, Plaintiff fails, and is unable to state a

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cognizable retaliation claim against Alomari for the processing and/or reviewing of his 602

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inmate appeals. This claim should be dismissed with prejudice.

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2. Access to the Courts
Inmates have a fundamental constitutional right of access to the courts. Lewis v. Casey,

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518 U.S. 343, 346 (1996). Claims for denial of access to the courts may arise from the frustration

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or hindrance of Aa litigating opportunity yet to be gained@ (forward-looking access claim) or from

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the loss of a meritorious suit that cannot now be tried (backward-looking claim). Christopher v.

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Harbury, 536 U.S. 403, 412-15 (2002).

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To assert a forward-looking access claim, the non-frivolous “underlying cause of action

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and its lost remedy must be addressed by allegations in the complaint sufficient to give fair notice

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to a defendant.” Id., 536 U.S. at 416. To state a claim, the plaintiff must describe this “predicate

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claim . . . well enough to apply the ‘non-frivolous' test and to show that the ‘arguable’ nature of

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the underlying claim is more than hope.” Id. It is not enough for Plaintiff merely to conclude that

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the claim was non-frivolous. Instead, the complaint should “state the underlying claim in

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accordance with Federal Rule of Civil Procedure 8(a) just as if it were being independently

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pursued, and a like plain statement should describe any remedy available under the access claim
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and presently unique to it.” Id. at 417–418.
Moreover, when a prisoner asserts that he was denied access to the courts and seeks a

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remedy for a lost opportunity to present a legal claim, he must show: (1) the loss of a non-

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frivolous or arguable underlying claim; (2) the official acts that frustrated the litigation; and (3) a

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remedy that may be awarded as recompense but that is not otherwise available in a future suit.

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Phillips v. Hust, 477 F.3d 1070, 1076 (9th Cir.2007) (citing Christopher, 536 U.S. at 413–414,

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overruled on other grounds, Hust v. Phillips, 555 U.S. 1150, 129 S.Ct. 1036, 173 L.Ed.2d 466

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(2009)).

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A[T]he injury requirement is not satisfied by just any type of frustrated legal claim.@

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Lewis, 518 U.S. at 354. Inmates do not enjoy a constitutionally protected right Ato transform

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themselves into litigating engines capable of filing everything from shareholder derivative actions

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to slip-and-fall claims.@ Id. at 355. Rather, the type of legal claim protected is limited to direct

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criminal appeals, habeas petitions, and civil rights actions such as those brought under section

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1983 to vindicate basic constitutional rights. Id. at 354 (quotations and citations omitted).

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AImpairment of any other litigating capacity is simply one of the incidental (and perfectly

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constitutional) consequences of conviction and incarceration.@ Id. at 355 (emphasis in original).

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a. Claim 4 (Doc. 1, at pp. 15-18); Claim 8 (id., at pp. 23-27);
and Claim 14 (id., at pp. 27-33).

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Plaintiff attempts to state three claims against Alomari for impairing his ability to access

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the courts -- Claim 4 (Doc. 1, at pp. 15-18); Claim 8 (id., at pp. 23-27); and Claim 14 (id., at pp.

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27-33). Plaintiff's allegations against Alomari under these claims are purely based on the

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handling of his inmate appeals. If Plaintiff were to file a lawsuit based on one of the issues that

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Plaintiff raised in an inmate appeal that he feels Alomari wrongly handled and if the defendants in

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that lawsuit raised the affirmative defense of Plaintiff's failure to exhaust available administrative

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remedies, Plaintiff would be able to raise the discrepancies/deficiencies in Alomari's handling of

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his inmate appeal on that issue in response. See Akhtar v. Mesa, 698 F.3d 1202, 1210 (9th Cir.

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2012). However, as stated in the prior screening order, the interference, that Plaintiff alleges,

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with his use of the prison grievance system, in and of itself, does not amount to a cognizable
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claim for violation of his right of access to the court.
Further, Plaintiff's allegations in this regard still fail to state at all, let alone in detail, what

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meritorious action he has been frustrated or hindered from pursuing or has lost that cannot now be

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pursued/tried. See Christopher, 536 U.S. at 412-15. Accordingly, Claims 4, 8, and 14 against

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AC I Alomari for impairment of Plaintiff's access to courts are not cognizable and should be

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dismissed.
3. Due Process

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Plaintiff attempts to state the following due process claims: Claim 9 against Sgt. TG Davis

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(Doc. 1, at pp. 27-33); Claim 10 against Ass. Warden S Reed (id., at pp. 27-33); Claim 11 against

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Ass. Warden R Hughes (id., at pp. 27-33); and Claim 12 against CCII M Nipper (id., at pp. 27-

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33).
The Due Process Clause protects prisoners from being deprived of liberty without due

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process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a cause of action

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for deprivation of due process, a plaintiff must first establish the existence of a liberty interest for

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which the protection is sought. AStates may under certain circumstances create liberty interests

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which are protected by the Due Process Clause.@ Sandin v. Conner, 515 U.S. 472, 483-84 (1995).

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Liberty interests created by state law are generally limited to freedom from restraint which

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Aimposes atypical and significant hardship on the inmate in relation to the ordinary incidents of

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prison life.@ Sandin, 515 U.S. at 484.

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In this regard, Plaintiff alleges that that on June 4, 2012, he was the victim of excessive

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force by a correctional officer.2 (Id., at pp. 27-28.) Thereafter, Plaintiff filed an inmate appeal,

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which he ended up withdrawing on representation by a correctional lieutenant that in exchange

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for Plaintiff doing so along with giving a video representation that no investigation was

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necessary, Plaintiff could return to normal prison programming. (Id., at p. 28.) However, when

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he was placed in a holding cage after giving the video, Plaintiff was approached by Davis who

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insisted that Plaintiff sign the CDC-1140, fear order. (Id.) When Plaintiff refused to sign it,

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This incident is not raised, nor did Plaintiff name the offending correctional officer as a defendant in this action.

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explaining that it was all over and he was "just waiting to go back to yard," Davis told Plaintiff

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that he was going to Ad Seg because Plaintiff had filed a staff misconduct appeal. (Id.) Plaintiff

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alleges that Reed, Hughes and Nipper were on the Ad-Seg Committee and that at the hearing, on

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July 17, 2012, they upheld Davis' Ad-Seg punishment of Plaintiff which imposed "atypical and

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significant hardship in relation to the ordinary incidents of prison life." (Id.) Plaintiff's

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allegations fail to show that he has a liberty interest in remaining free from Ad. Seg. placement

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and his allegations of the "atypical and significant hardship" are nothing more than A[t]hreadbare

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recitals of the elements of a cause of action" which need not be accepted. See Iqbal, 556 U.S. at

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678.

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Further, A[p]rison disciplinary proceedings are not part of a criminal prosecution, and the

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full panoply of rights due a defendant in such proceedings does not apply.@ Wolff v. McDonnell,

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418 U.S. 539, 556 (1974). With respect to prison disciplinary proceedings, the minimum

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procedural requirements that must be met are: (1) written notice of the charges; (2) at least 24

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hours between the time the prisoner receives written notice and the time of the hearing, so that the

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prisoner may prepare his defense; (3) a written statement by the fact finders of the evidence they

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rely on and reasons for taking disciplinary action; (4) the right of the prisoner to call witnesses

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and present documentary evidence in his defense, when permitting him to do so would not be

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unduly hazardous to institutional safety or correctional goals; and (5) legal assistance to the

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

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As long as the five minimum Wolff requirements are met, due process has been satisfied. Walker

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v. Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994). Plaintiff's claims in this regard are also not

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cognizable as he fails to state any allegations as to whether the Wolff requirements were met.

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a. Heck v. Humphrey, 512 U.S. 477 (1994)

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Also, Plaintiff alleges that his "yearly, or November annual was delayed" and that when it

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was held on January 13, 2013, he "was further injured [sic] the loss of 4 months Close-B custody

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credits ( -- from 7-7 to 11-6-12), depriving [Plaintiff] lower custody placement -- a waiting of 10

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years priviledge [sic] to be imposed at [that annual] hearing; denied, also, at 3-18-13 hearing on

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appeal." (Id., at pp. 29-30.)
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When a prisoner challenges the legality or duration of his custody, or raises a

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constitutional challenge which could entitle him to a change in level of custody (i.e. from the

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SHU or Ad Seg. to general population), his federal remedy is a writ of habeas corpus. See Nettles

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v. Grounds, 788 F.3d 992, 1004 (9th Cir. 2015). Moreover, when seeking damages for an

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allegedly unconstitutional conviction or imprisonment, "a § 1983 plaintiff must prove that the

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conviction or sentence has been reversed on direct appeal, expunged by executive order, declared

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invalid by a state tribunal authorized to make such determination, or called into question by a

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federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254." Heck v. Humphrey, 512

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U.S. 477, 487-88 (1994). "A claim for damages bearing that relationship to a conviction or

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sentence that has not been so invalidated is not cognizable under § 1983." Id. at 488.
Plaintiff does not state any allegations to indicate that his placement in Ad Seg has been

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reversed, expunged, declared invalid, or called into question. Thus, Heck bars Plaintiff from

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pursuing his due process Claims 9-12 which he alleges resulted in a loss of four months of Close-

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B custody credits.

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4. Rule 18
Federal Rule of Civil Procedure 18(a) states:
A party asserting a claim to relief as an original claim, counterclaim, crossclaim, or third-party claim, may join, either as independent or as alternate
claims, as many claims, legal, equitable, or maritime, as the party has
against an opposing party.

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Thus, multiple claims against a single party are fine, but Claim A against Defendant 1 should not

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be joined with unrelated Claim B against Defendant 2. Unrelated claims against different

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defendants belong in different suits, not only to prevent the sort of morass [a multiple claim,

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multiple defendant] suit produce[s], but also to ensure that prisoners pay the required filing fees --

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for the Prison Litigation Reform Act limits to 3 the number of frivolous suits or appeals that any

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prisoner may file without prepayment of the required fees. George v. Smith, 507 F.3d 605, 607

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(7th Cir. 2007), citing 28 U.S.C. ' 1915(g).

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As discussed above, Plaintiff has stated cognizable retaliation claims against Davies,
Vargas and Davis. However, there is no discernable relation between Plaintiff's allegations
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against Davis and his allegations against Davies and Vargas. There is neither an overlap of

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factual allegations, nor of Defendants between his allegations against them. Thus, it would

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violate Rule 18 to allow Plaintiff to proceed on his retaliation claim against Davis and his

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allegations against Davies and Vargas in the same action. Thus, Plaintiff should be allowed to

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proceed on his cognizable retaliation claims against Davies and Vargas (Claims 1 & 2), but his

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retaliation claim against Davis should be dismissed without prejudice from this action.

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II.

CONCLUSION & RECOMMENDATION

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Plaintiff's First Amended Complaint states cognizable retaliation claims against

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Defendants Davies and Vargas (Claims 1 and 2) as well as against Defendant Davis (Claim 9).

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However, since the claim against Defendant Davis is not related to the claims against Defendants

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Davies and Vargas, it should be dismissed without prejudice under Rule 18. Plaintiff fails to state

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any other cognizable claims in this action. It is noteworthy that Plaintiff's retaliation claims

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against Defendants Davies and Vargas were the only claims found cognizable in the prior

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screening order. (See Doc. 10.) Given Plaintiff's persistence in attempting to state causes of

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action that he as previously been advised are not actionable, as well as his efforts to make such

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claims cognizable under the rubric of inapplicable legal standards (i.e. the allegedly deficient

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handling of his inmate appeals as retaliation for his protected activities), it appears the

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deficiencies in Plaintiff's pleading are not capable of being cured through amendment which

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would make subsequent leave to amend futile, Akhtar v. Mesa, 698 F.3d 1202, 1212-13 (9th Cir.

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2012), and Plaintiff should not be given leave to amend his section 1983 claims.

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Accordingly, based on the foregoing, it is HEREBY RECOMMENDED that:

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1.

This action proceed on Plaintiff=s First Amended Complaint on Plaintiff=s claims

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(Claim 1 and Claim 2) against Defendants Vargas and Davies for retaliation in

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violation of the First Amendment;

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2.

That Plaintiff's claim (Claim 9) against Defendant Davis for retaliation in violation

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of the First Amendment should be dismissed from this action, without prejudice,

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so as not to violate Rule 18;

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3.

All other claims and Defendants should be dismissed with prejudice from this
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action based on Plaintiff's failure to state cognizable claims under section 1983.

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2

These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within 30

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days after being served with these Findings and Recommendations, Plaintiff may file written

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objections with the Court. The document should be captioned AObjections to Magistrate Judge=s

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Findings and Recommendations.@ Plaintiff is advised that failure to file objections within the

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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,

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839 (9th Cir. Nov. 18, 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

September 4, 2015

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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