(PC) Rogers v. Campbell et al

Filing 34

FINDINGS and RECOMMENDATIONS to Grant In Part and Deny in Part 29 Defendants' Motion to Dismiss, signed by Magistrate Judge Sheila K. Oberto on 11/25/2024. Referred to Judge Thurston. Objections to F&R due within Fourteen-Days. (Maldonado, C)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

CHARLES A. ROGERS,

12

Plaintiff,

13
14

v.
K. CAMPBELL, et al.,

15

Defendants.

Case No. 1:21-cv-00021-JLT-SKO (PC)
FINDINGS AND RECOMMENDATIONS
TO GRANT IN PART AND DENY IN PART
DEFENDANTS’ MOTION TO DISMISS
(Doc. 29)
14-DAY OBJECTION DEADLINE

16
17
18
19

Plaintiff Charles A. Rogers is proceeding pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983.

20

I.

21

The Court issued its Third Screening Order on January 26, 2024, finding Plaintiff’s third

RELEVANT BACKGROUND

22

amended complaint plausibly alleged a First Amendment retaliation claim against Defendant

23

Campbell, as well as violations of the Fourteenth Amendment due process clause against

24

Defendants Cates and Sullivan. (Doc. 22.)

25

On April 5, 2024, Defendants Campbell, Cates and Sullivan filed a motion to dismiss,

26

alleging Plaintiff fails to state claims upon which relief can be granted. (Doc. 29.) Plaintiff filed

27

an opposition (Doc. 31) and Defendants replied (Doc. 33).

28

//

PLAINTIFF’S CLAIMS

1

II.

2

The operative complaint is Plaintiff’s third amended complaint filed April 26, 2023. (See

3

Doc. 21.) At screening, this Court summarized Plaintiff’s facts as follows:

4

The Factual Allegations

5

Plaintiff alleges that on June 9, 2020, he wrote a letter to Defendant
Sullivan explaining Defendant Campbell had been withholding
Plaintiff’s mail “without any notification for more than 2 months.”
(Doc. 21 at 2.) Plaintiff asserts Defendant Campbell summoned
Plaintiff and informed him that his incoming mail was being
withheld “in search of contraband.” (Id.) Campbell also informed
Plaintiff that no contraband had been found. (Id.) Plaintiff alleges
Campbell wanted to know why the “return address on the mail was
fraudulent? Plaintiff could not confirm or deny.” (Id.)

6
7
8
9

Plaintiff asserts he filed an appeal regarding Campbell’s withholding
of his mail. (Doc. 21 at 2.) He contends Defendant Sullivan
“responded to [his] letter using vague and ambiguous terms” and did
not address Campbell’s actions. (Id.) Plaintiff contends Defendant
Cates heard the appeal and denied it. (Id.) Plaintiff asserts the appeal
“was granted at the highest level, in that defendant Campbell violated
the California Code of Regulations, Title 15 §3136(a)” by
withholding Plaintiff’s mail without notifying Plaintiff. (Id. at 2-3,
emphasis in original.)

10
11
12
13
14
15

Plaintiff alleges that on November 3, 2020, he received a Notification
of Disapproval for Mail/Packages/Publications form, stating
Plaintiff’s incoming mail was contraband. (Doc. 21 at 3.) Plaintiff
asserts he submitted an Inmate Request for Interview form, asking
Campbell to clarify how his incoming mail was considered
contraband. (Id.) Plaintiff alleges Campbell responded ambiguously,
“not stating exactly what is the contraband that was allegedly []
mailed” to Plaintiff. (Id.) Plaintiff then filed an appeal alleging
Campbell was “displaying acts of harassment and retaliation” after
the previously filed appeal. (Id.) Plaintiff alleges the justification “for
the withholding of [his] mail by Campbell is the postage stamp that
states: ‘Free Matter for the Blind and Physically Handicapped.’” (Id.)

16
17
18
19
20
21

Next, Plaintiff alleges he sent a letter to Sullivan explaining
Campbell’s withholding of his mail and asking Sullivan to instruct
Campbell to forward Plaintiff’s mail and “cease from these acts of
retaliation and harassment.” (Doc. 21 at 3.) He alleges the letter “fell
on deaf ears.” (Id.)

22
23
24
25

(Doc. 22 at 6-7.) Further facts relating to Plaintiff’s allegations included the following, in relevant

26

part:

27

Claim One: Retaliation by Defendant Campbell

28

Plaintiff contends Defendant Campbell “acted with retaliation and
2

conscious disregard” of his constitutional right to file a grievance
“against any malicious actions of prison staff, especially Campbell.”
(Doc. 21 at 3-4.) He states he wrote Defendant Sullivan about
Campbell’s actions and four months later he was advised by
Campbell that his mail was contraband. (Id. at 4.) Plaintiff states he
did not receive an infraction for attempting to introduce contraband
into a prison facility. (Id.) He contends the retaliatory action did not
advance any legitimate penological goal and that Campbell’s actions
were willful, reckless and done in conscious disregard of his rights.
(Id.)

1
2
3
4
5
6

Claim Two: Due Process Violations by Defendants Cates and
Sullivan

7

Plaintiff contends Defendants Cates and Sullivan “acted with
deliberate indifference” towards him when they failed to stop the
constitutional violations to which he was subjected. (Doc. 21 at 5.)
Plaintiff states he wrote a letter to Defendant Sullivan about
Campbell having withheld his mail for two months and eventually
Defendant Cates denied his grievance. (Id.) When Plaintiff
“furthered the appeal to the highest level,” it was granted. (Id.)
Plaintiff alleges his “correspondent mailed 2 letters to Sullivan,
October 4, 2020 and December 4, 2020,” informing Sullivan of the
constitutional violations regarding the withholding of Plaintiff’s
incoming mail. (Id.) Plaintiff asserts he “sent 3 letters to Cates, May
19, 2021; September 27, 2021; and September 29, 2021.” (Id.) He
contends the May 2021 letter concerned Campbell’s withholding of
his mail and the September 2021 letter involved a complaint about
mailroom staff withholding his “mail where some of his mail
plaintiff received it more than 2 months later.” (Id. at 5-6.) Plaintiff
alleges he “informed Cates that he still holds the evidence of the
mailroom purposely holding his mail.” (Id. at 6.) Plaintiff states he
“wanted to know how it is that he cannot dispute the finding of the
mailroom that the photos plaintiff received in the mail was not
appropriate,” but received no response. (Id.) Plaintiff asserts the
September 2021 letter asked Cates to accept his “602 and instruct the
prison appeals coordinator to log his appeal and forward it for
response, because [he] submitted the appeal previously and it is
believed that the appeal was discarded.” (Id.) Plaintiff asserts Cates
never responded, “nor did anyone at the appeals office.” (Id.)
Plaintiff contends his “correspondent has written Cates 4 times …
asking Cates to acknowledge the wrongdoings of the mailroom staff
and order the staff to cease from their continuous constitutional
violations.” (Id.) Plaintiff asserts “Cates and Sullivan were eerily
silent” and that both violated their duties “mandated by DOM §
33070.5.” (Id.)

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

(Doc. 22 at 7-8.) Considering the allegations in light of Plaintiff’s claims, the Court found as

26

follows:

27
28

Here, liberally construing the third amended complaint, Plaintiff
states a cognizable First Amendment retaliation claim against
Defendant Campbell. Plaintiff contends Campbell took adverse
3

1

3

action against him by withholding and continuing to withhold his
mail because Plaintiff filed a grievance against Campbell, and
thereby chilled Plaintiff’s exercise of his First Amendment rights and
Campbell’s actions did not advance any legitimate penological goal.
Rhodes, 408 F.3d at 567-68; McCollum, 647 F.3d at 882

4

…

5

Plaintiff contends Defendants Cates and Sullivan “acted with
deliberate indifference … when they failed (as prison wardens) to put
a stop to the constitutional violations that [he] was being subjected
to.” (Doc. 21 at 5.) Defendants Cates and Sullivan are identified as
wardens at the California Correctional Institution (“CCI”), and
neither is identified as having been personally involved in
withholding Plaintiff’s mail. Their involvement is instead centered
on the failure to respond to Plaintiff’s letters regarding Defendant
Campbell’s withholding of Plaintiff’s legal mail, a related lack of
notice, and the failure to remedy the matter when his grievance
concerning the withheld mail was granted at the highest level.
However, liability may not be imposed on supervisory personnel for
the actions or omissions of their subordinates under the theory of
respondeat superior. Iqbal, 556 U.S. at 676-77. Thus, Defendants
Cates and Sullivan are not liable merely as supervisors for the actions
or omissions of their subordinate, Defendant Campbell. … Plaintiff
does not allege Defendants Cates and Sullivan personally
participated in or directed the violations concerning his withheld
mail. Plaintiff does allege Cates and Sullivan were aware of the
violations and failed to take any action to prevent the violations. …
Plaintiff also contends Defendants Cates and Sullivan violated
“Department Operations Manual § 33070.5” which amounts to
violation of prison procedure or policy. Sorrels, 290 F.3d at 972.
Therefore, liberally construing the third amended complaint,
Plaintiff makes the required showing by alleging he advised both
Cates and Sullivan in writing that Campbell had withheld his mail
for two months without providing notice and that Defendants failed
to act. Although Plaintiff provides some dates and appears to omit
other dates, at the pleading stage, the Court finds Plaintiff sufficiently
alleges Fourteenth Amendment due process violations. … In sum,
liberally construing the third amended complaint, Plaintiff has
plausibly alleged Fourteenth Amendment due process violations
against Defendants Cates and Sullivan as they both had knowledge
of the alleged constitutional violations suffered by Plaintiff regarding
the lack of notice of his withheld mail and failed to act.

2

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

(Doc. 22 at 8-11.)

24

III.

25

LEGAL STANDARDS
Motions to Dismiss

26

A motion to dismiss under Rule 12(b)(6) “tests the legal sufficiency of a claim.” Navarro

27

v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In resolving a 12(b)(6) motion, the Court’s review is

28

generally limited to the “allegations contained in the pleadings, exhibits attached to the complaint,
4

1

and matters properly subject to judicial notice.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519

2

F.3d 1025, 1030-31 (9th Cir. 2008) (internal quotation marks & citations omitted). Dismissal is

3

proper if there is a “lack of a cognizable legal theory or the absence of sufficient facts alleged

4

under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.

5

1988) (citation omitted).

6

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

7

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

8

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Court

9

“accept[s] as true all well-pleaded allegations of material fact, and construe[s] them in the light

10

most favorable to the non-moving party.” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998

11

(9th Cir. 2010) (citation omitted). In addition, the Court construes pleadings of pro se prisoners

12

liberally and affords them the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir.

13

2010) (citation omitted). However, “the liberal pleading standard … applies only to a plaintiff’s

14

factual allegations,” not his legal theories. Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989).

15

When resolving a motion to dismiss under Rule 12(b)(6), a court may not consider

16

materials outside the complaint, including new allegations in an opposition. Guamataotao v. Dir.

17

Of Dep't of Revenue & Taxation, 236 F.3d 1077, 1083 (9th Cir. 2001); Schneider v. California

18

Dept. of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998) (finding new allegations contained

19

in an opposition to a motion to dismiss to be irrelevant for Rule 12(b)(6) purposes).

20
21

First Amendment Retaliation
Prisoners have a First Amendment right to file prison grievances and retaliation against

22

prisoners for exercising this right is a constitutional violation. Rhodes v. Robinson, 408 F.3d 559,

23

566 (9th Cir. 2005); Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003). A claim for First

24

Amendment retaliation in the prison context requires: (1) that a state actor took some adverse

25

action against the plaintiff (2) because of (3) the plaintiff’s protected conduct, and that such

26

action (4) chilled the plaintiff’s exercise of his First Amendment rights, and (5) “the action did

27

not reasonably advance a legitimate correctional goal.” Rhodes, 408 F.3d at 567-68; Brodheim v.

28

Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). To prove the second element, retaliatory motive, a
5

1

plaintiff must show that his protected activities were a “substantial” or “motivating” factor behind

2

the defendant’s challenged conduct. Brodheim, at 1269, 1271. Plaintiff must provide direct or

3

circumstantial evidence of defendant’s alleged retaliatory motive; mere speculation is not

4

sufficient. See McCollum v. CDCR, 647 F.3d 870, 882-83 (9th Cir. 2011); Wood v. Yordy, 753

5

F.3d 899, 905 (9th Cir. 2014). In addition to demonstrating defendant’s knowledge of plaintiff’s

6

protected conduct, circumstantial evidence of motive may include: (1) proximity in time between

7

the protected conduct and the alleged retaliation; (2) defendant’s expressed opposition to the

8

protected conduct; and (3) other evidence showing that defendant’s reasons for the challenged

9

action were false or pretextual. McCollum, 647 F.3d at 882.

10

Fourteenth Amendment Due Process

11

The Due Process Clause protects prisoners from deprivation of property without due

12

process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). The Due Process Clause “protects

13

persons against deprivations of life, liberty, or property; and those who seek to invoke its

14

procedural protection must establish that one of these interests is at stake.” Wilkinson v. Austin,

15

545 U.S. 209, 221 (2005).

16

Prisoners have a liberty interest in the receipt of mail which triggers procedural due

17

process guarantees. Krug v. Lutz, 329 F.3d 692, 696-97 (9th Cir. 2003). If prison officials

18

withhold mail, a prisoner has a due process right to receive notice that his incoming mail is being

19

withheld. See Frost v. Symington, 197 F.3d 348, 353-54 (9th Cir. 1999); see also Prison Legal

20

News v. Cook, 238 F.3d 1145, 1152-53 (9th Cir. 2001) (holding that due process rights apply to

21

withheld mail where prisoners had constitutionally protected right to receive the mail).

22

Withholding delivery of inmate mail must be accompanied by minimum procedural safeguards.

23

Procunier v. Martinez, 416 U.S. 396, 417-18 (1974), overruled on other grounds by Thornburgh

24

v. Abbott, 490 U.S. 401 (1989). These procedural safeguards include: (1) notifying the inmate that

25

the mail was seized; (2) allowing the inmate a reasonable opportunity to protest the decision; and

26

(3) referring any complaints to a prison official other than the one who seized the mail.

27

Procunier, 416 U.S. at 418-19; Krug, 329 F.3d at 698. A prisoner also has a due process right to

28

appeal the exclusion of mail to a prison official other than the one who made the initial exclusion
6

1

decision. Id. at 697-98 & n.5. A brief delay in the process of an inmate’s mail without notice to

2

the inmate is not a violation of the Fourteenth Amendment. Sorrels v. McKee, 290 F.3d 965, 972

3

(9th Cir. 2002). And “[o]nly if the failure to provide notice was pursuant to prison policy does

4

this constitute a due process violation actionable under § 1983.” Id.

5

IV.

SUMMARY OF THE PARTIES’ POSITIONS
Defendants’ Motion to Dismiss (Doc. 29)

6
7

Defendants contend Plaintiff’s First Amendment retaliation claim against Defendant

8

Campbell fails to allege sufficient facts to satisfy several elements of that claim. Defendants

9

further contend that Plaintiff’s Fourteenth Amendment claims against Defendants Sullivan and

10

Cates fail to state a claim upon which relief can be granted because the allegations “were in

11

contravention of prison policy, and were rectified by the appeal process.”
Plaintiff’s Opposition (Doc. 31)

12
13

Plaintiff contends he must be given the benefit of the doubt to allow for a consideration of

14

the merits of his claims. He asserts his claims “meet the requirements of notice pleading” and that

15

Defendants’ “papers fail[] to support their motions to dismiss and on appeal demonstrate that they

16

had fair notice of what Plaintiff’s claims are and the grounds upon which they rest.” Lastly,

17

Plaintiff asserts “it should be concluded that this Court has jurisdiction.”
Defendants’ Reply (Doc. 32)

18
19

Defendants state that Plaintiff’s opposition “fails to provide any compelling argument why

20

any of his claims should survive” and Plaintiff did not substantively address any of the arguments

21

asserted in the motion to dismiss.

22

V.

DISCUSSION

23

A. Plaintiff Sufficiently Alleges a Retaliation Claim Against Campbell

24

Defendants contend Plaintiff has failed to sufficiently allege the second, fourth and fifth

25

elements of a First Amendment retaliation claim. Plaintiff’s opposition fails to address

26

Defendants’ argument.

27

//

28

//
7

1

1. The Causation Element Is Sufficiently Pled

2

The second element—causation or “because of”—requires a showing of retaliatory

3

motive, that Plaintiff’s protected activities were a “substantial” or “motivating” factor behind the

4

Campbell’s challenged conduct. Brodheim, at 1269, 1271. Direct or circumstantial evidence of

5

defendant’s alleged retaliatory motive must be provided; mere speculation is not sufficient.

6

McCollum, 647 F.3d at 882-83. “[T]iming can properly be considered as circumstantial evidence

7

of retaliatory intent.” Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995).
Defendants allege that Plaintiff’s allegation that Campbell’s retaliatory conduct after

8
9

Plaintiff’s first grievance was filed is contradicted by Plaintiff’s complaint because his mail was

10

being withheld prior to the filing of the grievance. Defendants further assert that Plaintiff fails to

11

allege any retaliatory conduct by Campbell to suggest Campbell’s continued withholding of

12

Plaintiff’s mail was motivated by Plaintiff filing a grievance.

13

The third amended complaint asserts Plaintiff wrote a letter to Defendant Sullivan on June

14

9, 2020, contending that Defendant Campbell had been withholding his mail without providing

15

notification for two months. (Doc. 21 at 2.) Plaintiff alleges Campbell informed Plaintiff his mail

16

was being withheld “in search of contraband.” (Id.) Plaintiff then filed a grievance regarding

17

Campbell’s wrongful withholding of his mail and that the grievance was granted “at the highest

18

level” finding Campbell violated “Title 15 § 3136(a)” for withholding “mail without

19

notification.” (Id. at 2-3.) On November 3, 2020, Plaintiff received notification from Campbell

20

that incoming mail was being withheld as contraband. (Id. at 3.) Plaintiff submitted an Inmate

21

Request for Interview, “asking Campbell to clarify how his incoming mail was considered

22

contraband.” (Id.) Plaintiff alleges Campbell “responded in an ambiguous manner, not stating

23

exactly what was contraband.” (Id.) Plaintiff then filed another grievance alleging harassment and

24

retaliation by Campbell “behind the previous 602 plaintiff filed.” (Id.) Plaintiff states Campbell’s

25

reason for withholding his mail was “the postage stamp that states: ‘Free Matter For The Blind

26

And Physically Handicapped.’”1 (Id.)

27
28

1

Free Matter for the Blind and Other Physically Handicapped Persons is a service offered by the United
States Postal Service (USPS) that allows certain materials to “be sent free of charge if mailed by or for the
use of blind or other persons who cannot read or use conventionally printed materials due to a physical

8

1

Plaintiff’s first grievance followed a letter to Sullivan complaining of Campbell’s

2

withholding his mail in the absence of notice and Campbell later informing Plaintiff the

3

withholding was the result of a “search for contraband.” Plaintiff asserts his grievance was

4

granted because Campbell was found in violation of policy.

5

On November 3, 2020, Plaintiff received notice from Campbell that his incoming mail

6

was being withheld as contraband because it included a “postage stamp that states: ‘Free Matter

7

For The Blind And Physically Handicapped.’” When Plaintiff’s earlier grievance was granted

8

because Campbell was found to have violated policy, Campbell’s subsequent notice of

9

withholding Plaintiff’s incoming mail as contraband can amount to circumstantial evidence of

10

retaliatory motive. Stated another way, at the pleading stage, Plaintiff’s allegations involving the

11

withholding of his incoming mail by Campbell as contraband because that indicated the sender

12

(not Plaintiff as the recipient) was employing a service permitting blind or physically disabled

13

persons to mail certain materials free of charge can be reasonably inferred to be retaliatory

14

conduct. McCollum, 647 F.3d at 882-83; Pratt, 65 F.3d at 808. Under these circumstances,

15

Plaintiff’s allegation regarding retaliatory conduct is not merely speculative. McCollum, at 882-

16

83. Liberally construing Plaintiff’s allegations and affording him the benefit of any doubt, this

17

Court finds Plaintiff pled sufficient facts to establish retaliatory motive by Campbell.

18

Defendants cite to Calihan v. Adams, N. 1:09-CV-1373-MJS (PC), 2011 WL 284467, at

19

*6-7 (E.D. Cal. Jan. 26, 2011), in support of their contention that Plaintiff has failed to adequately

20

allege retaliatory animus. The Calihan court stated: “it is not entirely clear in Plaintiff’s

21

complaint, but it appears that Plaintiff is making a claim that Defendants are retaliating against

22

him for pursuing his constitutional rights, i.e., that Defendant Adams directed continued

23

interference with his mail after Plaintiff [] filed a grievance” for that interference. Id. at *6.

24

Discussing the causation prong, the Calihan court found: “It is unclear why Plaintiff believes that

25

the grievance was the cause of his mail being delayed when the same or similar interference was

26

handicap.” See https://faq.usps.com/s/article/What-is-Free-Matter-for-the-Blind-or-Other-PhysicallyHandicapped-Persons, as of 11/14/2024. Fed. R. Evid. 201; see Gerritsen v. Warner Bros. Entm't Inc., 112
F. Supp. 3d 1011, 1033 (C.D. Cal. 2015) (“Under Rule 201, the court can take judicial notice of public
records and government documents available from reliable sources on the Internet, such as websites run by
governmental agencies”).

27
28

9

1

occurring before the grievance was filed; indeed it was the subject of the grievance. Plaintiff has

2

failed to establish causation and motive sufficient to satisfy the second prong of his retaliation

3

claim.” Id. at *7.

4

Here, Plaintiff alleges he complained to the warden about not receiving notice that his

5

mail was being withheld, Campbell advised Plaintiff his mail was being withheld as potential

6

contraband, and when Plaintiff grieved the withholding in the absence of notice, the grievance

7

was granted at the highest level, finding Campbell violated regulations. Plaintiff’s incoming mail

8

was then withheld on the basis it included an improper stamp or postage. Unlike Calihan,

9

Plaintiff alleges conduct beyond “the same or similar interference.” Plaintiff alleges Campbell

10

withheld Plaintiff’s incoming mail because the third level grievance review determined Campbell

11

violated policy regarding a lack of notice and Campbell identified a later piece of incoming mail

12

as contraband based upon a stamp or postage affixed by the sender about a program available to

13

blind or physically handicapped persons.

14

At this stage of the proceedings, liberally construing the complaint and affording Plaintiff

15

the benefit of all doubt, the Court finds Plaintiff sufficiently alleged the second element of a

16

retaliation claim.

17

2. The Chilling Element Is Sufficiently Pled

18

The fourth element requires showing a chilling of the exercise of Plaintiff’s First

19

Amendment rights. Rhodes, 408 F.3d at 567-68. “[A] plaintiff who fails to allege a chilling effect

20

may still state a claim if he alleges he suffered some other harm.” Brodheim, 584 F.3d at 1269.

21

That the retaliatory conduct did not chill Plaintiff from suing the alleged retaliator does not defeat

22

the retaliation claim at the motion to dismiss stage. Rhodes, 408 F.3d at 569.

23

Defendants contend Plaintiff “fails to allege that the conduct described chilled the exercise

24

of his First Amendment right,” and the allegations in the operative complaint “suggest that

25

Plaintiff was unfazed by the alleged conduct as he continued to pursue administrative remedies

26

and communicate with Prison officials via mail regarding his grievances.” Defendants

27

additionally state that Plaintiff fails to allege he was prevented from sending mail or that all of his

28

incoming mail was withheld.
10

1

First, the fact Plaintiff continued to pursue his remedies and to communicate with prison

2

officials does not defeat his claim against Defendant Campbell at this stage of the proceedings.

3

Rhodes, 408 F.3d at 569. Second, Defendants cites to no legal authority that requires Plaintiff to

4

allege he was prevented from sending mail or that all of his incoming mail was withheld. Plaintiff

5

does not have to show he was actually chilled and prevented from sending mail or that all of his

6

incoming mail was withheld. In Rhodes, the Ninth Circuit “explicitly held that an objective

7

standard governs the chilling inquiry; a plaintiff does not have to show that ‘his speech was

8

actually inhibited or suppressed,’ but rather that the adverse action at issue ‘would chill or silence

9

a person of ordinary firmness from future First Amendment activities.” Brodheim, 584 F.3d at

10

1271 (citing Rhodes, 408 F.3d at 568-69). Further, “a plaintiff who fails to allege a chilling effect

11

may still state a claim if he alleges he suffered some other harm” as a retaliatory adverse action.

12

Brodheim, 584 F.3d at 1269 (citing Rhodes, 408 F.3d at 567 n.11).

13

Here, Plaintiff’s operative complaint alleges he suffered harm in the form of “personal

14

property loss.” At this stage of the proceedings, liberally construing the complaint and affording

15

Plaintiff the benefit of all doubt, the Court finds Plaintiff sufficiently alleged the fourth element of

16

a retaliation claim.

17

3. The Legitimate Correctional Goal Element Is Sufficiently Pled

18

The fifth element requires a showing that the action did not reasonably advance a

19

legitimate correctional goal. Rhodes, 408 F.3d at 567-68. Plaintiff bears the burden of pleading

20

and proving the absence of legitimate correctional goals for the conduct of which he complains.

21

See Pratt, 65 F.3d at 806. A plaintiff may do so “by alleging, in addition to retaliatory motive,

22

that the defendant’s actions were arbitrary and capricious … or that they were ‘unnecessary to the

23

maintenance of order in the institution.’” Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir.

24

2012) (citations omitted).

25

Here, Plaintiff’s third amended complaint alleges that Campbell’s “retaliatory action did

26

not advance any legitimate penological goals.” This refers to the November 2020 conduct

27

involving withholding Plaintiff’s incoming mail as contraband because it involved “a postage

28

stamp that states: ‘Free Matter For The Blind And Physically Handicapped.’” (Doc. 21 at 4.)
11

1

Liberally construing the complaint, and resolving all doubt in Plaintiff’s favor, it can be

2

reasonably inferred Campbell’s actions were arbitrary and capricious. Watison, 668 F.3d at 1114-

3

15.

4

It is unclear how the withholding of incoming mail, sent by an outside individual who

5

apparently used a government program providing blind and physically handicapped individuals

6

with access to postage, was necessary to the maintenance of order in the institution. See Rizzo v.

7

Dawson, 778 F.2d 527, 532 (9th Cir. 1985) (“[P]laintiff has alleged that [prison official] Stocker's

8

actions were retaliatory and were arbitrary and capricious. He has thereby sufficiently alleged that

9

the retaliatory acts were not a reasonable exercise of prison authority and that they did not serve

10

any legitimate correctional goal”). At this stage of the proceedings, liberally construing the

11

complaint and affording Plaintiff the benefit of all doubt, the Court finds Plaintiff has sufficiently

12

alleged the fifth element of a retaliation claim.

13
14

4. Summary
For the foregoing reasons, the Court finds Plaintiff has alleged sufficient facts concerning

15

the second, fourth, and fifth elements of a First Amendment retaliation claim. It will therefore

16

recommend that Defendants’ motion to dismiss the retaliation claim against Defendant Campbell

17

be denied.

18

B. Plaintiff Fails to Allege Due Process Violations Against Cates and Sullivan

19

Defendants contend Plaintiff has not alleged a Fourteenth Amendment due process

20

violation because Plaintiff failed to allege that the lack of notice concerning the withholding of

21

his mail was pursuant to a prison policy.

22

“[W]ithhold[ing] delivery of [inmate mail] must be accompanied by minimum procedural

23

safeguards.” Sorrels v. McKee, 290 F.3d 965, 972 (9th Cir. 2002) (as amended) (citation omitted,

24

alterations in original). In particular, an inmate has a due process liberty interest in receiving

25

notice that his incoming mail is being withheld. Id. However, “[o]nly if the failure to provide

26

notice was pursuant to prison policy does this constitute a due process violation actionable under

27

§ 1983.” Id.

28
12

1

Plaintiff does not allege that the asserted misconduct was pursuant to prison policy.

2

Plaintiff instead alleges that his incoming mail was withheld in violation of prison procedure. (See

3

Doc. 21 at 2-3 [grievance granted “at highest level, in that defendant Campbell violated the

4

California Code of Regulations, Title 15 § 3136(a) when he withheld plaintiff’s mail without

5

notification”].) Therefore, no actionable due process violation has been alleged. Sorrels, 290 F.3d

6

at 972; Aguilar v. Carpio, No. 1:17-cv-01190-DAD-GSA-PC, 2019 WL 3409902, at *6 (E.D.

7

Cal. July 29, 2019) (“Plaintiff alleges that defendant Carpio was in violation of CDCR regulations

8

and the Department Operations Manual for failing to timely notify him that his mail was

9

withheld. Thus, the failure to notify of the rejection was unauthorized and contrary to prison

10

policy. It constitutes at most negligence and does not state a due process violation under § 1983”

11

[italics added]);2 Jackson v. Medina, No. EDCV 13-01930-JVS (DTB), 2016 WL 7638200, at *6,

12

(C.D. Cal. Oct. 31, 2016) (“plaintiff alleges that his mail was withheld in violation of prison

13

procedure. … Plaintiff does not maintain that the alleged misconduct was pursuant to prison

14

policy. Thus, plaintiff has not stated a Due Process violation under Section 1983” [italics in

15

original]).

16

Defendants also contend Plaintiff cannot allege a due process claim against Defendants

17

Cates and Sullivan because “neither was involved in the alleged initial two-month lack of notice.”

18

Defendants assert that Cates and Sullivan “did not have knowledge of the lack of notice until they

19

were allegedly informed by Plaintiff in his letter and 602 appeal.”
Regarding Defendants Cates and Sullivan, Plaintiff’s operative complaint alleges they

20
21

violated their duty pursuant to section 33070.5 of the Department Operations Manual. (See Doc.

22

21 at 6 [“both of them violated their duties as mandated by DOM §33070.5”].) Plaintiff alleges

23

his “correspondent mailed 2 letters to Sullivan” on October 4, 2020, and on December 4, 2020,

24

“informing [S]ullivan of the constitutional violations of plaintiff’s incoming mail being

25

wrongfully withheld.” (Id. at 5.) Plaintiff further alleges he “sent 3 letters to Cates.” (Id.) These

26

letters consist of a May 19, 2021, letter stating that “once again Campbell [was] withholding

27
2

28

Compare to Zavala v. Rios, No. 1:09-cv-679 MJS (PC), 2013 WL 4401883, at *3 (E.D. Cal. Aug. 15, 2013)
(“Plaintiff alleges that a prison policy caused his mail to be withheld and packages returned without notice to him.
Plaintiff has stated a cognizable due process claim”).

13

1

plaintiff’s mail,” a September 27, 2021, letter involving a “complaint about the mailroom staff is

2

purposely withholding plaintiff’s mail where some of his mail plaintiff received it more than 2

3

months later,” and a September 29, 2021, letter asking “Cates to accept plaintiff’s 602 and

4

instruct the prison appeals coordinator to log his appeal and forward it for a response ….” (Id. at

5

5-6.) Plaintiff also alleges his “correspondent has written Cates 4 times, on September 10, 2020;

6

December 20, 2020; August 20, 2020; and October 21, 2021.” (Id. at 6.) On those occasions,

7

Plaintiff’s correspondent asked Cates “to acknowledge the wrongdoings of the mailroom staff and

8

order the staff to case from their continuous constitutional violations.” (Id.)

9

Section 33070.5 titled “Employee Expectations and Reporting” provides as follows:

10

(a) Each employee, regardless of classification or rank, shall adhere
to the department’s Employee Performance Standards set forth in
Title 15, section 3391, and be responsible for the following:

11
12
13
14
15
16
17
18
19
20
21

(1) Referring all observed misconduct or any unethical or illegal
activity toward an inmate or parolee to CST via the Central
Repository;
(2) Referring verbal allegations of unnecessary or excessive use of
force and staff sexual misconduct, including sexual harassment,
toward an inmate or parolee to CST via the Central Repository, and
immediately forward the complaint to their Hiring Authority;
(3) Advising the complainant on how to submit their complaint in
writing for verbal complaints not involving unnecessary or excessive
use of force and staff sexual misconduct, including sexual
harassment, toward an inmate or parolee; and
(4) Reporting alleged staff misconduct promptly to a supervisor or
other appropriate departmental, governmental, or law enforcement
entity. If information is reported verbally to a supervisor, the
employee shall also submit a written report to the supervisor.

22

(https://www.cdcr.ca.gov/regulations/wp-content/uploads/sites/171/2024/03/2024-DOM.pdf.)

23

Plaintiff alleges a due process violation against Cates and Sullivan for their failure to

24

report illegal activity to the central repository—Campbell’s withholding of his mail without

25

notice. These allegations are insufficient to state claims against Cates and Sullivan.

26

Plaintiff has not alleged that Cates or Sullivan “observed misconduct or any unethical or

27

illegal activity toward an inmate.” Nor did Plaintiff’s complaints about Campbell to Cates or

28

Sullivan involve unnecessary or excessive force or staff sexual misconduct or harassment. Only
14

1

subsection (4) section 33070.5 —reporting alleged staff misconduct promptly to a supervisor or

2

other appropriate departmental, governmental, or law enforcement entity—is potentially relevant

3

because Plaintiff asserts Cates and Sullivan failed to report Campbell’s misconduct promptly to a

4

supervisor or other appropriate entity.

5

Plaintiff’s claims against Cates and Sullivan rest on Campbell’s failure to notify Plaintiff

6

that his mail was being withheld. As noted above, because Plaintiff alleges Campbell withheld his

7

mail in violation of prison procedure rather than pursuant to prison procedure, he cannot state

8

claims against Cates and Sullivan based on their failure to report Campbell’s purported

9

misconduct.3 For that same reason, whether and when Cates and Sullivan had notice of Plaintiff’s

10

complaints about Campbell’s failure to notify him of withheld incoming mail are not

11

determinative. Standing alone, the allegations that Cates and Sullivan violated prison regulations4

12

do not state a section 1983 claim. See Cousins v. Lockyer, 568 F.3d 1063, 1070 (9th Cir. 2009)

13

(California prison regulations “do not establish a federal constitutional violation”); see also

14

Dillingham v. Garcia, No. 1:19-cv-00461-AWI-GSA-PC, 2020 WL 2836449, at *14 (E.D. Cal.

15

June 1, 2020) (section 1983 does not provide remedy for alleged violations of California

16

Department of Corrections and Rehabilitation Department Operations Manual); Kitilya v. Calif.

17

Dep't of Corrections and Rehabilitation, No. 2:18-cv-0672 JAM DB P, 2018 WL 3129816, at *2

18

(E.D. Cal. June 20, 2018) (“Section 1983 provides no redress for prison officials' mere violation

19

of state prison regulations”). Accordingly, Cates and Sullivan did not commit a federal

20

constitutional violation by failing to report alleged staff misconduct.

21
22

In sum, Plaintiff fails to sufficiently allege due process violations against Defendants
Cates and Sullivan. Granting Plaintiff leave to amend these claims would be futile. Hartmann v.

23
3

24
25
26
27
28

See, e.g., Nunez v. Ramirez, No. 09cv413 WQH (BLM), 2010 WL 1222058, at *6 (S.D. Cal. Mar. 24,
2010) (“Plaintiff's free speech and retaliation claims are dependent on whether his statement ‘If you saw
who was drinking, why don't you address that person instead of disrespecting everybody’ is speech
protected by the First Amendment. Because the statement is not protected speech in the prison context, his
free speech and retaliation claims fail regardless of whether he has alleged all of the other elements of
these claims”).
Prison policies, regulations, or guidelines do not constitute federal law; instead, they are “primarily
designed to guide correctional officials in the administration of a prison...not...to confer rights on inmates.”
Sandin v. Conner, 515 U.S. 472, 481-82 (1995).
4

15

1

CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013) (“A district court may deny leave to amend when

2

amendment would be futile”); Jackson, 2016 WL 7638200, at *6 (“because it is not possible for

3

plaintiff to cure this deficiency through amendment, the Court recommends that plaintiff’s

4

Fourteenth Amendment claim with respect to the withholding of his mail be dismissed without

5

leave to amend”). The Court will recommend Defendants’ motion to dismiss Plaintiff’s due

6

process claims against Cates and Sullivan be granted.

7

IV.

8

Based upon the foregoing, IT IS HEREBY RECOMMENDED that:

9

1. Defendants’ motion to dismiss (Doc. 29) be GRANTED in part and DENIED in

10

CONCLUSION AND RECOMMENDATIONS

part as follows:
a. Defendants’ motion to dismiss Plaintiff’s First Amendment retaliation claim

11
12

against Defendant Campbell be DENIED; and
b. Defendants’ motion to dismiss Plaintiff’s Fourteenth Amendment due process

13
14

claims against Defendants Cates and Sullivan be GRANTED.

15

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

16

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

17

after being served with a copy of these Findings and Recommendations, a party may file written

18

objections with the Court. Local Rule 304(b). The document should be captioned, “Objections to

19

Magistrate Judge’s Findings and Recommendations” and shall not exceed fifteen (15) pages

20

without leave of Court and good cause shown. The Court will not consider exhibits attached to

21

the Objections. To the extent a party wishes to refer to any exhibit(s), the party should reference

22

the exhibit in the record by its CM/ECF document and page number, when possible, or otherwise

23

reference the exhibit with specificity. Any pages filed in excess of the fifteen (15) page limitation

24

may be disregarded by the District Judge when reviewing these Findings and Recommendations

25

under 28 U.S.C. § 636(b)(l)(C). A party’s failure to file any objections within the specified time

26

//

27

//

28

//
16

1

may result in the waiver of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th

2

Cir. 2014).

3
4
5
6

IT IS SO ORDERED.
Dated:

/s/ Sheila K. Oberto

November 25, 2024

.

UNITED STATES MAGISTRATE JUDGE

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
17