Kirchner v. Biter et al

Filing 20

FINDINGS and RECOMMENDATIONS Regarding Dismissal of Certain Claims and Defendants 19 ; Referred to District Judge Anthony W. Ishii, signed by Magistrate Judge Barbara A. McAuliffe on 1/27/2020. Objections to F&R due within FOURTEEN (14) DAYS. (Orozco, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KRISTOPHER KIRCHNER,

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Plaintiff,

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v.

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M. BITER, et al.,

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Case No. 1:18-cv-00516-AWI-BAM (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF CERTAIN
CLAIMS AND DEFENDANTS
(ECF No. 19)

Defendants.

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Plaintiff Kristopher Kirchner (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action under 42 U.S.C. § 1983. On April 26, 2019, the Court screened

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Plaintiff’s complaint and granted him leave to file an amended complaint or to notify the Court of

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his willingness to proceed on certain cognizable claims. (ECF No. 16.) Plaintiff’s first amended

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complaint, filed on June 20, 2019, is currently before the Court for screening. (ECF No. 19.)

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I.

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

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governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or

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malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief

Screening Requirement and Standard

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from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b).

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

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

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

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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as true, courts “are not required

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to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir.

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2009) (internal quotation marks and citation omitted).

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To survive screening, Plaintiff’s claims must be facially plausible, which requires sufficient

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factual detail to allow the Court to reasonably infer that each named defendant is liable for the

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misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret Serv.,

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572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not

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sufficient, and mere consistency with liability falls short of satisfying the plausibility standard.

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Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.
Plaintiff’s Amended Complaint

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II.

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Plaintiff is currently housed at California State Prison, Los Angeles County. The events in

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the complaint are alleged to have occurred primarily at Kern Valley State Prison (“KVSP”) in

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Delano, California. Plaintiff names the following defendants: (1) KVSP Warden M. Biter; (2)

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KVSP Assistant Warden C. Pfeiffer, (3) KVSP Captain S. Henderson: (4) KVSP Lieutenant J.

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Harden; (5) KVSP Senior Hearing Officer J. S. Diaz; (6) KVSP Investigative Employee J. Perez;

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(7) KVSP Appeals Coordinator S. Tallerico; (8) Appeals Examiner R. Pimental; (9) Internal Affairs

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Agent S. Cooper; and (10) KVSP Appeals Coordinator D. Tarnoff.

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Factual Allegations

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Plaintiff alleges the conspiracy began on January 10, 2014 and with Defendant Harden,

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authoring of Plaintiff’s April 22, 2014 RVR regarding conspiracy to batter an inmate with a

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weapon. Plaintiff contends that all evidence disproves this claim.

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On February 6, 2014, Plaintiff arrived on Facility A, one month after the beginning of the

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alleged conspiracy. All whites and STG Crips were locked down. All non-Crip black inmates had
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full program.

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On or about March 5, 2014, white inmates and Crips were locked down due to an incident

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on February 12, 2014, when two white inmates were severely beaten by black inmates-STG Crips.

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All non-Crip black inmates had full program.

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On or about March 17, 2014, incremental unlock for both white inmates and STG Crips
proceeded without incident.

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On March 18, 2014, white inmates and STG Crips returned to full program.

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On March 26, 2014, Plaintiff went to yard once due to staff shortages and yard rotation

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schedule.

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On March 27, 2014, Plaintiff was released from his cell for Odinist services, searched for

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weapons by floor staff (none were found) and sent to A-Lower yard to be processed onto the patio.

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For ten minutes, Plaintiff mingled with white, Mexican, and black inmates. At that time, Odinist

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Services were cancelled, and all white inmates were corralled by correctional officers and escorted

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back to their housing blocks. Upon his return, Plaintiff again was subjected to a clothed body

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search with negative results for contraband. A few minutes later, Plaintiff and his cellmate were

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secured in the B-section shower and subjected to an unclothed body search with negative results.

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Plaintiff’s cell also was searched. No contraband was found. All white inmates were again locked

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down, but no reason was given.

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From March 27 to April 9, 2014, Defendant J. Harden interviewed a confidential source for

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an April 10 confidential memorandum. The information neither named the Plaintiff as a conspirator

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nor described Plaintiff’s specific role in the conspiracy to batter an inmate with a weapon-STG

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Nexus for which Plaintiff was charged. Plaintiff alleges that Defendant J. Harden recorded on an

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official document that the confidential memorandum indeed named the Plaintiff as a conspirator

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and described his specific role in the alleged conspiracy, just days after Plaintiff filed an informal

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grievance for racial discrimination, suggests a retaliatory motive.

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On April 10, 2014, as a result of the confidential interview, Plaintiff’s cell was raided at

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0400 hours by the Institutional Gang Investigations Unit. Plaintiff’s cell was searched manually,

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with metal detectors and with dogs, but no contraband was found. Upon conclusion of the cell
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search, Plaintiff’s property was confiscated by the unit in order to be investigated for gang activity.

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The investigation found no gang activity and the property was returned 11 days later.

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On April 14, 2014, Plaintiff filed an informal grievance (CDCR 22 Form) requesting that

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the white inmate population be treated equally to the black inmate population on Facility A with

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white inmates being locked down according to their STG designation instead of as a race.

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On April 15, 2014, Plaintiff’s cell again was searched for weapons and contraband with
negative results.

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On April 17, 2014, Defendant J. Harden interviewed the confidential source quoted in a

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confidential memorandum dated April 22, 2014. The information was used a corroborating

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evidence that Plaintiff conspired to batter an inmate with a weapon—STG Nexus. Plaintiff asserts

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that this information lacks any mention of Plaintiff and is not located in his c-file.

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On April 22, 2014, Plaintiff was placed in Ad/Seg for RVR FA-14-04-024 (conspiracy to

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batter an inmate with a weapon-STG Nexus). Plaintiff contends that the conspiracy charge, later

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overturned by Judge Follett of California State Superior Court/Del Norte County due to no

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supporting evidence, was in retaliation for filing an informal grievance. The chronology of events

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implies retaliation and is further supported by Defendant J. Harden’s refusal to answer Plaintiff’s

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independent investigator’s questions as well as lying by saying that Plaintiff was named as part of

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the conspiracy when, in fact, Plaintiff was not. Plaintiff contends that he neither conspired to batter

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an inmate with a weapon nor was he involved in any of the incidents related to the racial unrest on

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Facility A at that time. Plaintiff further contends that it served no penological interest to place

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Plaintiff in Ad/Seg for a fabricated charge.

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On May 15, 2014, Plaintiff gave Defendant J. Perez, the investigative employee, questions
for witnesses and a request for non-confidential documents.

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On May 30, 2014, Plaintiff received an incomplete investigative employee report.

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Defendant J. Harden refused to answer 75% of Plaintiff’s questions and lied by stating that Plaintiff

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was named as part of the conspiracy. Defendant Henderson refused to answer any of Plaintiff’s

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questions regarding racial discrimination on A- Facility. Plaintiff complains that both of these

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defendants impeded an official investigation and hindered Plaintiff from gathering evidence in his
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defense.

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On the same day, May 30, 2014, Plaintiff filed a 602 (Inmate Appeal), asking that his staff

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complaint against Defendant Henderson for racial discrimination be processed. Plaintiff contends

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that this 602 disappeared.

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On June 1, 2014, Plaintiff requested via 22 Form that the Chief Disciplinary Officer assign

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him an investigative employee who would collect evidence for his defense. The request was never

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answered.

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On June 3, 2014, Plaintiff attended his disciplinary hearing. Plaintiff noted that all twelve

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of his alleged co-conspirators already had been found guilty by Defendant Rios. At the hearing,

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Plaintiff submitted his written statement in order to have it recorded in the hearing’s report. Plaintiff

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asked Defendant Diaz to sign his copy of the written statement, but Defendant Diaz refused.

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Defendant Diaz glanced at the statement, briefly reviewed the RVR and asked Plaintiff if he had

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anything to add before Defendant Diaz made his decision. Plaintiff argued his case for twenty

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minutes. Defendant Diaz allegedly countered Plaintiff’s evidence by distorting the RVR and

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inventing scenarios to justify a guilty finding. Plaintiff requested Defendant Harden as a witness,

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but Defendant Diaz denied the request and found Plaintiff guilty of conspiracy to batter an inmate

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with a weapon – STG nexus.

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On June 13, 2014, Plaintiff filed a staff complaint against Defendants Harden and

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Henderson for refusing to answer Plaintiff’s investigative employee questions. The 602 reportedly

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disappeared, along with two others—one for racial discrimination and one for denial of the appeals

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process.

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On June 20, 2014, Plaintiff received Defendant Diaz’s Senior Hearing Officer’s report.
Plaintiff claims it was largely falsified.

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On June 23, 2014, Plaintiff appealed the RVR guilty finding, but the appeal disappeared.

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On July 10, 2014, Plaintiff filed a staff complaint against Defendant Diaz for suppressing

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Plaintiff’s defense and for denying a witness. This appeal also disappeared.
On July 17, 2014, Plaintiff was notified by the Appeals Office that it had no record of
Plaintiff’s July 1 appeal of his guilty finding. All supporting documents also disappeared.
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On July 18, 2014, Plaintiff requested that his counselor provide him all the supporting
documents to re-appeal the guilty finding.

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On July 21, 2014, due to the disappearance of his appeals, Plaintiff attempted to circumvent

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those responsible by appealing his guilty finding to the third level of review in Sacramento. This

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appeal was screened out for being filed at the wrong level.

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On July 23, 2014, to avoid having his appeal dismissed for time constraint violations,

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Plaintiff filed a duplicate appeal of the guilty finding, asking Sergeant Valenzuela for the necessary

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documents and to walk Plaintiff’s appeal to the Appeals Office for processing. This appeal was

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screened out by Defendant Tallerico.

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On August 7, 2014, Plaintiff was taken to committee and given a 24-month SHU term

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followed by an indeterminate term in the Step Down Program. CSR deferred the transfer until the

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mistaken point assessment for conspiracy was fixed.

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On August 18, 2014, due to the disappearance of his 602s, Plaintiff asked Officer Vieth to

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make him copies of his recently screened out 602. Plaintiff already had mailed copies home for

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safe keeping. Officer Vieth lost one of Plaintiff’s copies.

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On August 20, 2014, Plaintiff again attempted to bypass the KVSP Appeals Office, sending

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his appeal to the Chief of Inmate Appeals Branch. This 602 also was screened out for submission

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at the incorrect level.

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On September 7, 2014, Plaintiff acquired documents indicating that his alleged co-

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conspirator, Inmate Siders, had his SHU deferred because one of the confidential memoranda

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neither mentioned him nor was located in his file. Plaintiff claims that this same lack of evidence

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also applied to him. He requested the same SHU deferment but was denied. Plaintiff attempted to

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include this in his 602, but was told by Defendant Tallerico to remove it and other documents before

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his appeal would be screened. Plaintiff claims that the arbitrary “screen outs” of his appeal and the

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disappearance of multiple appeals violated his First and Fourteenth Amendment rights.

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On September 8, 2014, Aleshia Quennell (now Kirchner), on Plaintiff’s behalf, contacted

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the Office of Internal Affairs and informed them of the ongoing First and Fourteenth Amendment

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violations. Defendant S. Cooper refused to investigate the allegations of staff misconduct and
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instead entrusted the investigation to Defendant Biter, who entrusted it to the Appeals Office.

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Defendant Tarnoff swept most of the complaints under the rug.

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On September 12, 2014, Plaintiff re-appealed the RVR for conspiracy and had Sergeant
Valenzuela walk it to the Appeals Office.

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On September 15, 2014, Plaintiff was moved from ASU-1 to ASU-2.

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On September 29, 2014, Plaintiff still had not received a response to his 602. Plaintiff

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requested verification of the 602. He did not receive a response for five months and his appeal was

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never delivered.

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On October 8, 2014, Plaintiff contacted Lieutenant Ostrander and asked her to contact

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Sergeant Valenzuela about the 602 for conspiracy. Plaintiff was told that Sergeant Valenzuela had

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to leave early on September 12, 2014, and had entrusted it to a junior officer. The junior officer

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lost it.

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On October 10, 2014, Sergeant Valenzuela provided Plaintiff with the documents necessary
to re-file his conspiracy appeal.
On October 15, 2014, Sergeant Valenzuela walked Plaintiff’s conspiracy 602 to the Appeals

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Office.
On October 16, 2014, Defendant Tallerico screened out Plaintiff’s appeal. Plaintiff claims
that this denied him access to the courts.

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On October 19, 2014, Plaintiff contacted Internal Affairs and informed them of his civil

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rights violations. Defendant Cooper sent the complaint to Defendant Biter, who sent it to Defendant

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Tarnoff. Defendant Tarnoff did not investigate any of Plaintiff’s complaints.

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On October 21, 2014, Plaintiff asked Lieutenant Ostrander to help him get his conspiracy
appeal processed. She reportedly talked to Defendant Tallerico.

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On October 30, 2014, Plaintiff’s appeal was finally accepted.

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On November 11, 2014, Defendant Pfeiffer denied Plaintiff’s appeal at the second level.

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Plaintiff claims that Defendant Pfeiffer violated his First and Fourteenth Amendment rights by

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upholding the baseless guilty finding.

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On December 4, 2014, Plaintiff filed a staff complaint against Defendants Henderson,
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Harden and Diaz. Defendant Tallerico screened out the 602 for time constraint violations and all

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supporting documents disappeared.

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On December 12, 2014, Plaintiff asked Officer Garcia to defer his SHU as he did for Inmate
Siders. Plaintiff was ignored.

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On December 30, 2014, Plaintiff contacted Internal Affairs and provided them an eight-

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page record of his civil rights violations. Defendant Cooper refused to investigate the allegations,

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which were sent to Defendant Biter and then to Defendant Tarnoff for investigation.
On March 3, 2015, Defendant Tarnoff ignored Plaintiff’s complaints and denied his appeal

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at the second level of review.

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On the same day, Plaintiff was taken to committee and again denied the SHU deferment.

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Instead, Plaintiff was punished with a 24-month SHU term to be followed by an indeterminate

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placement into the Step Down Program. Plaintiff also was put up for transfer to CCI or Corcoran

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SHU.

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On March 21, 2015, Plaintiff was emergency transferred to Pelican Bay, given only 15

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minutes to pack. This occurred the day before Plaintiff was to receive a scheduled visit from out-

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of-town. Plaintiff claims this was retaliation for contacting Internal Affairs.

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On May 4, 2015, Plaintiff was placed in the SHU and much of his property was thrown out
because of property restrictions.

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In early June 2015, Plaintiff received the third level denial for his conspiracy appeal.

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On July 16, 2015, Plaintiff filed a writ of habeas corpus, Case No. HCPB-15-5095, with the

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California Superior Court of Del Norte County. Plaintiff challenged the guilty finding for

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conspiracy, as well as the alleged civil rights violations. At the same time, Defendant Wong refused

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to investigate Eileen Peterson’s citizen’s complaint and instead entrusts the investigation to

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Defendant Biter, who did not investigate Ms. Peterson’s concerns about her son’s emergency

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transfer.

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In late December 2015, Plaintiff was transferred to San Diego County Jail for a Miller v.
Alabama hearing.
On March 21, 2015, Plaintiff returned to Pelican Bay SHU.
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On April 6, 2015, Plaintiff went to committee for his annual review. Initially, Plaintiff’s

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counselor recommended that Plaintiff, having completed his 24-month SHU term, be placed into

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Step 1 of the Step Down Program. Plaintiff disagreed and informed the committee about the lack

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of evidence for his SHU placement and the pending writ. Plaintiff subsequently was released to

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the mainline.

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On April 28, 2015, Plaintiff was transferred back to KVSP, where Defendant Pfeiffer was

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then Warden. Plaintiff told staff that he wanted to go to SNY. It took Plaintiff nineteen months to

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complete the debrief process.
On June 17, 2016, Plaintiff’s writ was granted and his guilty finding for conspiracy was

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vacated, along with all other resulting penalties.1

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Causes of Action

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Plaintiff asserts ten separate causes of action.

In cause one, Plaintiff contends that

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Defendant Biter violated Plaintiff’s First and Fourteenth Amendment rights by allowing Plaintiff’s

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civil rights to be violated and for improper supervision regarding Plaintiff’s appeals.
In the second cause, Plaintiff alleges that Defendant Pfeiffer violated Plaintiff’s Fourteenth

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Amendment rights.

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In the third cause, Plaintiff alleges that Defendant Henderson violated Plaintiff’s Fourteenth

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Amendment rights by refusing to answer Plaintiff’s investigative employee questions and hindering

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his defense.

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In the fourth cause, Plaintiff alleges that Defendant Harden violated Plaintiff’s First and

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Fourteenth Amendment rights by retaliating against Plaintiff for his racial discrimination

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complaint, fabricating evidence for the conspiracy RVR, refusing to answer most of Plaintiff’s

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investigative employee questions and hindering his defense.
In the fifth cause, Plaintiff alleges that Defendant Diaz violated Plaintiff’s Fourteenth

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The Court takes judicial notice of Plaintiff’s habeas action in the Del Norte County
Superior Court, In re: Kristopher Kirchner, J-31375 and the Decision Granting Petition for Writ
of Habeas Corpus dated June 17, 2016 (Doc. 1 at pp. 5-8.) The court may take judicial notice of
state court records. See Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007); Kasey v.
Molybdenum Corp. of America, 336 F.2d 560, 563 (9th Cir. 1964).
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Amendment rights by denying him Due Process: ignoring and suppressing Plaintiff’s written

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defense, failing to record it in his findings and make it available to reviewing officers, and denying

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his request for witnesses and an impartial hearing officer.

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In the sixth cause, Plaintiff alleges that Defendant Perez violated Plaintiff’s Fourteenth
Amendment Due Process rights by failing to collect evidence on Plaintiff’s behalf.

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In the seventh cause, Plaintiff alleges that Defendant Tallerico violated his First and

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Fourteenth Amendment rights. Plaintiff claims that Defendant Tallerico denied or obstructed his

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access to courts through exhaustion of administrative remedies.

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Defendant Tallerico violated his Fourteenth Amendment rights by ignoring evidence of the due

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Plaintiff also alleges that

process violations.
In the eighth cause, Plaintiff alleges that Defendant Pimental violated Plaintiff’s Fourteenth
Amendment rights by denying Plaintiff’s appeal at the third level.

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In the ninth cause of action, Plaintiff alleges that Defendant Cooper violated Plaintiff’s First

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and Fourteenth Amendment rights because he refused to supervise and correct the behavior of those

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under his authority violating Plaintiff’s civil rights.

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In the tenth cause, Plaintiff alleges that Defendant Tarnoff violated Plaintiff’s rights by
refusing to investigate Plaintiff’s allegations of civil rights violations and obstructing his appeals.

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Requested Relief

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As relief, Plaintiff seeks monetary damages.

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III.

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Discussion
A.

Supervisory Liability

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Insofar as Plaintiff is attempting to sue Defendants Biter, Cooper and Pfeiffer (or any other

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supervisors) based on their supervisory roles, he may not do so. Liability may not be imposed on

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supervisory personnel for the actions or omissions of their subordinates under the theory of

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respondeat superior. Iqbal, 556 U.S. at 676–77; Simmons v. Navajo Cty., Ariz., 609 F.3d 1011,

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1020–21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir.2009); Jones v.

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

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Supervisors may be held liable only if they “participated in or directed the violations, or
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knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th

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Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205–06 (9th Cir. 2011); Corales v. Bennett, 567

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F.3d 554, 570 (9th Cir. 2009). Supervisory liability may also exist without any personal

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participation if the official implemented “a policy so deficient that the policy itself is a repudiation

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of the constitutional rights and is the moving force of the constitutional violation.” Redman v. Cty.

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of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (citations and quotations marks omitted),

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abrogated on other grounds by Farmer v. Brennan, 511 U.S. 825 (1970).

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Plaintiff’s allegations concerning Defendants Biter and Pfeiffer are not sufficient to state a

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cognizable claim. At best, Plaintiff is attempting to impose liability against these defendants based

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simply on their supervisory roles. There are no allegations to suggest that that these defendants

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participated in any violations of Plaintiff’s rights or that they implemented any deficient policies

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that were the moving force of any constitutional violation. Plaintiff has been unable to cure this

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deficiency.

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B.

First Amendment

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Retaliation

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

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

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

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v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995).

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“Within the prison context, a viable claim of First Amendment retaliation entails five basic

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elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because

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of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his

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First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional

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goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); accord Watison v. Carter, 668

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F.3d 1108, 1114-15 (9th Cir. 2012); Silva, 658 at 1104; Brodheim v. Cry, 584 F.3d 1262, 1269 (9th

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Cir. 2009).

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Adverse action taken against a prisoner “need not be an independent constitutional

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violation. The mere threat of harm can be an adverse action.” Watison, 668 F.3d at 1114 (internal
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citations omitted). A causal connection between the adverse action and the protected conduct can

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be alleged by an allegation of a chronology of events from which retaliation can be inferred. Id.

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The filing of grievances and the pursuit of civil rights litigation against prison officials are both

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protected activities. Rhodes, 408 F.3d at 567–68. Plaintiff must allege either a chilling effect on

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future First Amendment activities, or that he suffered some other harm that is “more than minimal.”

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Watison, 668 F.3d at 1114. A plaintiff successfully pleads that the action did not reasonably

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advance a legitimate correctional goal by alleging, in addition to a retaliatory motive, that the

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defendant's actions were “arbitrary and capricious” or that they were “unnecessary to the

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maintenance of order in the institution.” Id.

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Defendant Harden

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Plaintiff alleges that Defendant Harden retaliated against him for his racial discrimination

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complaint. However, Plaintiff’s allegations are not sufficient to state a cognizable retaliation claim

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against Defendant Harden. The amended complaint lacks any factual allegations suggesting that

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Defendant Harden took any adverse action against Plaintiff because of any protected activity of

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which Defendant Harden was aware. Although Plaintiff alleges that the timing alone should be

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sufficient, there is nothing in the complaint to suggest that Defendant Harden had any knowledge

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of Plaintiff’s protected activity. Plaintiff has been unable to cure this deficiency.

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Defendant Tallerico

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Insofar as Plaintiff alleges that Defendant Tallerico retaliated against him for filing

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grievances screening out Plaintiff’s appeals and otherwise obstructing Plaintiff’s access to court,

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Plaintiff’s complaint fails to state a cognizable claim for retaliation. There is no indication that

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Defendant Tallerico took any adverse action against Plaintiff because of any protected conduct. As

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discussed below, actions in screening out appeals are not sufficient to support a constitutional

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violation. Plaintiff has been unable to cure this deficiency.

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2.

Access to Courts

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Inmates have a fundamental constitutional right of access to the courts. Lewis v. Casey, 518

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U.S. 343, 346 (1996). However, the right is limited to direct criminal appeals, habeas petitions, and

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civil rights actions. Id. at 354. In order to state a claim for the denial of court access, a prisoner
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must establish that he suffered an actual injury. Id. at 349. “[A]ctual injury [is] actual prejudice

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with respect to contemplated or existing litigation, such as the ability to meet a filing deadline or to

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present a claim.” Id. at 348; Christopher v. Harbury, 536 U.S. 403, 415 (2002) (quoting Lewis, 518

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U.S. at 353 & n.3); Nevada Dep't of Corr. v. Greene, 648 F.3d 1014, 1018 (9th Cir. 2011).

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In this case, Plaintiff alleges that Defendant Tallerico denied him access to the courts by

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screening out or failing to act on his appeals. However, Plaintiff’s complaint does not include any

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factual allegations demonstrating that Defendant Tallerico or any other named defendant prevented

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Plaintiff from filing a criminal appeal, habeas petition or civil rights action or that he suffered any

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actual injury with respect to contemplated or existing litigation relative to the processing of his

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grievances. Moreover, Plaintiff successfully filed a writ of habeas corpus, which was granted,

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undermining any claim that he was denied access to courts and suffered any injury. Plaintiff has

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been unable to cure this deficiency.

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C.

Fourteenth Amendment

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1.

Equal Protection – Deferral of SHU Term

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Plaintiff also claims that Defendant Pfeiffer violated his Equal Protection rights by treating
him differently than Inmate Siders relative to his SHU term.

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The Equal Protection Clause requires that persons who are similarly situated be treated

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alike. City of Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985). An equal protection claim

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may be established by demonstrating that the defendant intentionally discriminated against the

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plaintiff on the basis of the plaintiff’s membership in a protected class, such as race. See, e.g., Lee

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v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001); Thornton v. City of St. Helens, 425 F.3d

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1158, 1167 (9th Cir. 2005).

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Where no suspect class or fundamental right is implicated, a plaintiff’s equal protection

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claims are subject to a rational basis review. See Village of Willowbrook v. Olech, 528 U.S. 562,

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564 (2000); United States v. Juvenile Male, 670 F.3d 999, 1009 (9th Cir. 2012); Nelson v. City of

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Irvine, 143 F.3d 1196, 1205 (9th Cir. 1998) (“Unless a classification trammels fundamental

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personal rights or implicates a suspect classification, to meet constitutional challenge the law in

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question needs only some rational relation to a legitimate state interest.”). In the prison context, the
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right to equal protection is viewed through a standard of reasonableness; that is, whether the actions

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of prison officials are “reasonably related to legitimate penological interests.” Walker v. Gomez,

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370 F.3d 969, 974 (9th Cir. 2004) (citing Turner v. Safley, 482 U.S. 78, 89 (1987)).

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Here, Plaintiff’s complaint does not include allegations that Defendant Pfeiffer intentionally

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discriminated against him on the basis of a suspect class in refusing deferral of the SHU term or

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that he was similarly situated to Inmate Siders. Further, Plaintiff’s complaint does not include

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allegations suggesting that the actions of prison officials, in refusing to defer his SHU term, were

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not reasonably related to legitimate penological interests.

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Plaintiff also generally alleges that certain defendants denied him “equal protection,” such

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as Defendants Biter, Tallerico and Cooper. However, conclusory allegations, without more, are

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not sufficient to state a cognizable equal protection claim. Plaintiff has been unable to cure these

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deficiencies.

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2.

Due Process Clause - Disciplinary Proceedings

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The Due Process Clause protects prisoners from being deprived of life, liberty, or property

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without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a claim

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of deprivation of due process, a plaintiff must allege the existence of a liberty or property interest

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for which the protection is sought. See Ingraham v. Wright, 430 U.S. 651, 672 (1977); Bd. of

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Regents v. Roth, 408 U.S. 564, 569 (1972).

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As to disciplinary proceedings, due process requires prison officials to provide the inmate

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with: (1) a written statement at least 24 hours before the disciplinary hearing that includes the

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charges, a description of the evidence against the inmate, and an explanation for the disciplinary

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action taken; (2) an opportunity to present documentary evidence and call witnesses, unless calling

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witnesses would interfere with institutional security; and (3) legal assistance where the charges are

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complex or the inmate is illiterate. See Wolff, 418 U.S. 539, 563–70 (1974). Due process is

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satisfied where these minimum requirements have been met, and where there is “some evidence”

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in the record as a whole which supports the decision of the hearing officer. See Superintendent v.

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Hill, 472 U.S. 445, 455 (1985). The “some evidence” standard is not particularly stringent and is

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satisfied where “there is any evidence in the record that could support the conclusion reached.”
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Hill, 472 U.S. at 455–56.

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Here, the Court finds that Plaintiff’s complaint states a cognizable due process claim arising

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out of his disciplinary proceedings against Defendants Henderson, Harden, Diaz and Perez.

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Plaintiff’s complaint includes allegations suggesting that these defendants either prevented him

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from receiving assistance or prevented him from providing evidence or witnesses at the hearing.

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Plaintiff also adequately alleges that the decision of the hearing officer was not supported by “some

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evidence” and was subsequently reversed by the state court.2

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3.

Due Process - Confiscation of Property

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Prisoners have a protected interest in their personal property. Hansen v. May, 502 F.2d 728,

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730 (9th Cir. 1974). An authorized, intentional deprivation of property is actionable under the Due

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Process Clause; See Hudson v. Palmer, 468 U.S. 517, 532, n.13 (1984) (citing Logan v.

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Zimmerman Brush Co., 455 U.S. 422, 435–36 (1982) ); Quick v. Jones, 754 F.2d 1521, 1524 (9th

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Cir. 1985), however, “an unauthorized intentional deprivation of property by a state employee does

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not constitute a violation of the procedural requirements of the Due Process Clause of the

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Fourteenth Amendment if a meaningful post-deprivation remedy for the loss is available,” Hudson,

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468 U.S. at 533.

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Plaintiff appears to complain about the wrongful, unauthorized taking and/or destruction of

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his property by Defendants Criteser and Statham. Due Process is therefore satisfied if there is a

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meaningful post-deprivation remedy available to him. Hudson, 468 U.S. at 533. Plaintiff has an

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adequate post-deprivation remedy available under California law. Barnett v. Centoni, 31 F.3d 813,

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816–17 (9th Cir. 1994) (citing Cal. Gov't Code §§ 810–895). Accordingly, Plaintiff's complaint

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fails to state a cognizable claim for the alleged deprivation of his personal property.

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D.

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Grievance/Complaint Process

Plaintiff alleges that Defendants Tallerico, Pimental, Cooper, Tarnoff, Wong, and Perez
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By this order, the Court makes no determination as to the applicability of claim preclusion
or other equitable doctrines barring this claim. The Court notes that a petition for writ of habeas
corpus filed in California state court can have a claim preclusive effect on a subsequent section
1983 action if the second suit involves: (1) the same cause of action (2) between the same parties
or parties in privity with them (3) after a final judgment on the merits in the first suit. Furnace v.
Giurbino, 838 F.3d 1019, 1023 (9th Cir. 2016).
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denied him due process by destroying or failing to properly process or review his grievances and

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complaints. However, Plaintiff cannot pursue any claims against prison staff based solely on the

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processing and review of his inmate appeals. Plaintiff does not have a constitutionally protected

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right to have his appeals accepted or processed. Ramirez v. Galaza, 334 F.3d 850, 860 (9th

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Cir.2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir.19 88). The prison grievance procedure

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does not confer any substantive rights upon inmates and actions in reviewing appeals cannot serve

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as a basis for liability under section 1983. Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir.1993);

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see also Wright v. Shannon, No. 1:05-cv-01485-LJO-YNP PC, 2010 WL 445203, at *5 (E.D. Cal.

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Feb. 2, 2010) (plaintiff’s allegations that prison officials denied or ignored his inmate appeals failed

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to state a cognizable claim under the First Amendment). Denial or refusal to process a prison

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grievance is not a constitutional violation. Rushdan v. Gear, No. 1:16-cv-01017-BAM (PC), 2018

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WL 2229259, at *6 (E.D. Cal. May 16, 2018). Accordingly, Plaintiff fails to state a cognizable

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claim arising out of the screening, investigation or processing of his grievances or complaints.

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IV.

Conclusion and Recommendation

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Based on the above, the Court finds that Plaintiff’s complaint states a cognizable Fourteenth

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Amendment due process claim against Defendants Henderson, Harden, Diaz and Perez arising from

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Plaintiff’s disciplinary proceedings, but fails to state any other cognizable claim for relief.3 Despite

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being provided with the relevant pleading and legal standards, Plaintiff has been unable to cure the

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remaining deficiencies and further leave to amend is not warranted. Lopez v. Smith, 203 F.3d 1122,

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1130 (9th Cir. 2000).

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Accordingly, IT IS HEREBY RECOMMENDED as follows:

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1.

This action proceed on Plaintiff’s first amended complaint, filed on June 20, 2019,

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against Defendants Henderson, Harden, Diaz and Perez arising from Plaintiff’s disciplinary

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proceedings;

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2.

All other claims and defendants be dismissed from this action based on Plaintiff’s

failure to state claims upon which relief may be granted.
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As noted above, at this stage of the proceedings, the Court has not made a determination
as to the applicability of claim preclusion or other equitable doctrines that may bar this claim.
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These Findings and Recommendation will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14)

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

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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendation.” Plaintiff is advised that failure to file objections within the

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specified time may result in the waiver of the “right to challenge the magistrate’s factual findings”

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on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923

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F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

January 27, 2020

A. McAuliffe

_

UNITED STATES MAGISTRATE JUDGE

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