Johnson v. Robinson, et. al.

Filing 58

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 3/1/15 RECOMMENDING that the motion to dismiss filed by defendants Jordan, Marton, Pulley, Ostrom, Donnelly, Fransham, Jacquez and Wilkinson 26 should be granted with prejud ice as to all federal claims, for failure to state a claim on which relief could be granted. The motion to dismiss filed by defendant King 37 should be granted with prejudice as to all federal claims with prejudice, for failure to state a claim on which relief could be granted. Defendant Robinson's motion for summary judgment 53 should be granted as to all federal claims due to plaintiff's failure to exhaust administrative remedies prior to filing suit. Defendant Robinson's motion to dismiss should be granted in part and denied in part. Referred to Judge William B. Shubb; Objections to F&R due within 14 days. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KEVIN B. JOHNSON,

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No. 2:12-CV-2400 WBS DAD P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

R. ROBINSON, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se in this civil rights action, brought under 42

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U.S.C. § 1983, and is alleging violations of his civil rights. In his complaint, plaintiff has

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presented numerous claims, all of which center on prison officials‟ decision in 2009 to include an

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“R-suffix” in his custody classification. The California Department of Corrections and

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Rehabilitation (CDCR) uses the R-suffix to indicate an inmate is a sex offender, a classification

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that in turn affects an inmate‟s eligibility for certain custody assignments. Plaintiff alleges that

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adding the R-suffix to his custody classification violated his rights to due process and equal

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protection. He further alleges that the defendants recommended or assigned him the R-suffix in

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retaliation for his filing of inmate grievances in the past and that the placement of the R-suffix in

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his classification violates his right to be free from cruel and unusual punishment under the Eighth

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Amendment. Plaintiff also avers state law causes of action for fraud, intentional infliction of

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emotional distress and negligence.
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Pending before the court now are several motions to dismiss and one motion for summary
judgment filed on behalf of the various defendants.

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I. Factual background

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In his complaint, plaintiff alleges as follows. Plaintiff‟s criminal history begins in 1977,

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when he pled guilty to one misdemeanor count of indecent exposure, a violation of California

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Penal Code § 314.1. (Complaint (Doc. No. 1) at ¶ 19.) Plaintiff claims that he “is not now, nor

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has he ever been, required to register per [Penal Code Section] 290 for that 1977 conviction.” (Id.

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at ¶ 21.) Section 290 of the California Penal Code establishes the state‟s sex offender registration

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requirement for individuals convicted of certain sex offenses. California Code of Regulations,

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title 15, section 3377.1(b)(1)(A) (2008), states that “[a]n „R‟ suffix shall be affixed to an inmate‟s

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custody designation . . . during reception center processing if . . . [t]he inmate is required to

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register per PC Section 290.” The R-suffix is relevant to determining an inmate‟s housing

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assignment and the degree of supervision he will require while in CDCR‟s custody. See 15 CCR

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§ 3377.1(a).

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Plaintiff states he entered California‟s correctional system in 1981 on a narcotics

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conviction. (Complaint at ¶ 21.) Plaintiff bounced in and out of CDCR‟s custody until 2000,

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when he was given a life sentence under California‟s Three-Strike provision. (Id. at ¶¶ 37-56; see

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also Ex. D.) It does not appear that plaintiff was convicted of any sex offense other than the

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misdemeanor indecent exposure charge in 1977. However, in 1999, while in CDCR‟s custody,

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“plaintiff was forced to submit [to] the felony statutory provision found in P.C. 296 et seq. for his

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misdemeanor offense.” (Id. at ¶ 48.) Here, plaintiff refers to the sections of the California Penal

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Code that require CDCR officials to collect DNA samples from inmates who have been convicted

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of certain offenses. See Cal. Penal Code §§ 295-296. In his complaint he says that “as a direct

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result of this erroneous DNA collection, a [Folsom State Prison] classification committee

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erroneously affixed an „R‟ suffix to the plaintiff‟s custody designation[,] labeling him a „sex

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offender‟ without conducting any „R‟ suffix evaluation.” (Compl. at ¶ 49.) Plaintiff appealed the

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R-suffix designation through CDCR‟s internal grievance process and requested clarification as to

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whether he was required to register as a sex offender under Penal Code § 290. (See Compl. Ex.
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B.) A Correctional Case Supervisor responded to his appeal as follows:
After a thorough review of your Rap Sheet, I did discovered [sic] an
arrest of Aug. 14, 1976 by Sacramento Co. for 314.1 PC/Indecent
Exposure (Misdemeanor). On Feb. 3, 1977, you were convicted of
that particular offense.
However, per People vs. King (1984) 157 Cal.3d 554 Court of
Appeals, Fourth Appellate Dist. Court, conviction of this offense is
no longer registrable [sic] if the offense was committed on or before
June 22, 1984, or unless ordered by the court.
Contact was made with the Department of Justice (Registration
Unit) in Sacramento to determine if the court had ever ordered you
to register per 290 PC. . . . [N]o registration is required.
A Notation has been entered in your Central File to that affect [sic].
All existing forms will be purged from the Central File, and a copy
of this appeal will remain in the file, as a point of reference.

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Id. According to plaintiff, his inmate appeal resulted in having the R-suffix removed from his

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classification status. (Compl. at ¶¶ 51-53.)

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In December 2008, prison officials at Corcoran State Prison, however, revisited plaintiff‟s

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custody classification. (Id. at ¶ 61.) Plaintiff had requested a transfer to a lower-security

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institution, and a classification staff representative was required to evaluate his custody

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designation prior to endorsing or opposing the transfer. (Id. at ¶¶ 62-65.) As part of that process,

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a unit classification committee (UCC) decided not to affix the R-suffix to plaintiff‟s custody

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classification because no documentation regarding his arrest and conviction for misdemeanor

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indecent exposure was available. (Id. at ¶ 66; Compl., Ex. G.) On January 20, 2009, plaintiff was

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transferred to California Training Facility (CTF). (Id. at ¶ 68.)

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Defendant Robinson was assigned as plaintiff‟s correctional counselor (CCI) upon

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plaintiff‟s arrival at CTF. (Compl. at ¶ 70.) According to plaintiff, he and Robinson had a

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negative history: Robinson had been plaintiff‟s CCI during plaintiff‟s previous stint at CTF from

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2005 to 2007. (Id. at ¶ 75.) In October or November 2006, plaintiff “lodged an administrative

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grievance / staff complaint against defendant R. Robinson for what plaintiff alleged was „a

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morally lax character when dealing with inmates and applying prison policy.‟” (Id. at ¶ 76.)

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“Plaintiff‟s return to CTF on Jan. 20, 2009, was his first encounter with defendant R. Robinson in

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over two years.” (Id. at ¶ 77.)
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According to plaintiff, during a meeting in Robinson‟s office on January 27, 2009,

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Robinson informed plaintiff that at an upcoming initial classification committee hearing he would

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recommend applying an R-suffix to plaintiff‟s custody classification in light of his conviction for

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misdemeanor indecent exposure in 1977. (Id. at ¶ 71.) Plaintiff informed Robinson that the UCC

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at Corcoran had just decided against affixing the R-suffix to plaintiff‟s classification. (Id. at ¶

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81.) “Defendant R. Robinson stated that he was, indeed, aware of that fact.” (Id. at ¶ 82.)

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Plaintiff alleges that he continued to press Robinson that reconsideration of his classification was

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unnecessary, whereupon “Defendant R. Robinson . . . showed plaintiff the door, stating, „[I]f you

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don‟t like it, appeal it, or file one of your little complaints, you like to do that – right.‟” (Id. at ¶

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86.)

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Plaintiff appeared before a “mock” classification committee on February 4, 2009.1

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(Compl. at ¶ 69.) The committee was comprised of defendants Robinson and King and non-party

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correctional officer Todd. (Id. at ¶ 89.) King presided as “acting captain.” (Id. at ¶ 90.)

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Defendant Robinson formally recommended affixing the R-suffix in light of plaintiff‟s

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misdemeanor indecent exposure conviction. (Id. at ¶ 91.) Plaintiff alleges that “[d]efendant

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King then abruptly attempted to conclude [the hearing] by telling plaintiff that was all and he

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could go[,]” but plaintiff “began to address his disagreement . . . directing defendant King to the

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Dec. 4, 2008 [hearing] where the issue of the „R‟ suffix . . . had just been fully and exhaustively

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evaluated and resolved[.]” (Id. at ¶¶ 92-93.) King replied that Robinson had already reviewed

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that part of plaintiff‟s record and determined that affixing the R-suffix was appropriate. (Id. at ¶

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94.) Plaintiff claims that when he “attempted to ask on what grounds had defendant Robinson

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made that „determination,‟ defendant R. Robinson interrupted plaintiff by standing and saying,

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„We‟re done here, let‟s go.‟” (Id. at ¶ 95.) The complaint further alleges that when he asked if he

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could submit a letter explaining his opposition to the R-suffix, and when defendant King

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“responded affirmatively and began to reach across the table top” to take the letter, Robinson

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The term “mock” appears to be plaintiff‟s characterization of the committee, reflecting his
contention that the committee was not properly formed under CDCR regulations and had no
authority to recommend the R-suffix. (See Compl. at ¶¶ 88-89, 113-17.)
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“became livi[d] and very angry[,] placed his hand on his pepper-spray and stepped toward

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plaintiff, who was still seated, as if he was going to spray plaintiff right in the face.” (Id. at ¶

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102-05.) Plaintiff avers that “[d]efendant King then jumped from her chair yelling, „Robinson,

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stop it. Sit down!‟” (Id. at ¶ 106.) King informed plaintiff that the committee‟s decision was

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“only a recommendation” to be submitted to a classification staff representative (CSR). (Id. at ¶

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108.) King allegedly went on to tell plaintiff that “if the CSR does go along with our

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recommendation today, then I will personally provide you with the CDC Form 840 and the CDC

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Form 128G recording today‟s committee decision so you can appeal this action if that‟s what you

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want to do, but you must wait for the proper forms . . . so you can attach them to your appeal[.]”

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(Id.) The record of the February 4 hearing states that “[t]he inmate was told . . . that he can argue

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his case through a CDCR 602 Appeal process if the CSR approves today‟s committee action and

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receives copies of the CDCR 128-G and CDCR 840 forms.”2 (Compl., Ex. HH.)

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Plaintiff states as he exited the hearing room on February 4, he “made a conscious

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decision right there and then to stay as far away from defendant R. Robinson as possible.”

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(Compl. at ¶ 118.)
It appears that defendant Donnelly, the CSR assigned to plaintiff‟s classification after the

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initial hearing, approved the R-suffix recommendation on February 17, 2009, though the form

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recording that decision simply states that the “R suffix is noted.” (Compl., Ex. I I.) The form

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documenting the CSR‟s review is labeled “CDC 128-G,” which is one of the forms plaintiff had

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to wait for before filing an appeal. (Id.) However, plaintiff maintains that he received no notice

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of any final decision on his custody classification for over a year after the hearing of February 4,

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2009. He states that he sent defendant King notes “several times during the months that followed

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. . . inquiring about the status of his custody . . . but never received any reply.” (Id. at ¶ 122.)

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The record of the February 4 hearing lists defendant Jordan as the committee chairperson.
(Compl., Ex. HH.) There is a signature above Jordan‟s name. Plaintiff insists Jordan was not at
the February 4 hearing and alleges that Jordan, Robinson and King have fraudulently represented
that Jordan was there by signing their names on the record. (Compl. at ¶337, 340-41.) The court
notes that the document also lists correctional officers Moffatt and Lacy as committee members.
Neither of them is a defendant in this lawsuit, nor is Officer Todd, who no one disputes was at the
hearing.
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Plaintiff was transferred to Folsom State Prison (FSP) in July 2010. (Id. at ¶ 120.) He alleges

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that during his entire stay at CTF, he never heard that an R-suffix had been affixed to his custody

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status. (Id. at ¶ 124.)
According to the complaint, “[i]t wasn‟t until plaintiff‟s initial classification committee at

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FSP on July 21, 2010 that plaintiff learned that he did, indeed, have an „R‟ suffix affixed to his

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custody designation dating back to the Feb. 4, 2009 UCC [hearing] at CTF.” (Id. at ¶ 125.)

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Plaintiff again argued his case at FSP that the change in his classification was an error and

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violated CDCR regulations. (Id. at ¶ 129.) Defendant Jacquez, who chaired the UCC that day,

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replied simply that the R-suffix was valid. (Id. at ¶ 131.) Plaintiff filed an administrative appeal

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of the R-suffix that same day, July 21, 2010. (See Compl., Ex. J.) It was the first inmate appeal

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related to his new custody classification.
Plaintiff‟s appeal was screened out by defendant Fransham initially because it did not

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include the proper documentation. (Compl. at ¶ 139.) Ultimately Fransham rejected plaintiff‟s

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inmate appeal as untimely. (Id. at ¶¶ 167, 169.) After extensive interaction with Fransham and

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plaintiff‟s correctional counselor at Folsom, defendant Pulley, “plaintiff felt, at this point, that he

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had no choice but to wait for the next annual classification review committee.” (Id. at ¶ 219.)
Defendants Wilkinson, Marton and Pulley were present at plaintiff‟s next classification

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hearing, in December 2011. (Compl. at ¶¶ 228-29.) Plaintiff again argued at that time against the

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affixing of the R-suffix to his classification, but Wilkinson informed him that the committee

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would not take up the issue. (Id. at ¶¶ 233-34.) As plaintiff continued to argue his case,

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defendant Pulley allegedly “shoved” plaintiff out of the room. (Id. at ¶¶ 237-39.) Plaintiff

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appealed again. Defendant Olstrom screened out the inmate appeal as untimely. (Compl., Ex.

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GG.) At a meeting with defendant Olstrom to discuss his inmate appeal‟s “cancellation,”

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Olstrom gave plaintiff copies of the 128-G form for the hearing of February 4, 2009, at which

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Robinson had originally recommended the R-suffix, and the 128-G form reflecting the CSR‟s

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apparent approval of that recommendation on February 17, 2009. (Compl. at ¶¶ 259-61.)

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According to plaintiff, that was the first time plaintiff had received those forms. (Id. at ¶¶ 262.)

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II. The question of plaintiff‟s registration requirement under Penal Code § 290

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One of plaintiff‟s key allegations is that his misdemeanor conviction for indecent

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exposure in 1977 has never required him to register as a sex offender under California Penal Code

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§ 290. The undersigned‟s own inquiry indicates that contention to be false: in fact, a conviction

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for indecent exposure has long been included in the text of § 290 as a sex offense that triggers the

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statute‟s mandatory reporting requirement. This appears to have been the case since at least 1970.

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See, e.g., Barrows v. Municipal Court, 1 Cal.3d 821, 826 (1970) (“Among the persons who are

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required to register pursuant to section 290 are those who are convicted of ... exposing one‟s

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person in a public place (§314)[.]”) Although there was a long period after plaintiff‟s conviction

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during which California courts questioned the constitutionality of including indecent exposure as

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an offense requiring registration under § 290, this court can find no indication that the

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requirement was not in effect when plaintiff pled guilty to indecent exposure in 1977.3

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In 1983, the California Supreme Court held that requiring one convicted of misdemeanor “lewd
or dissolute conduct” (California Penal Code § 647(a)), to register as a sex offender was a form of
punishment that violated the California constitution‟s ban on cruel and unusual punishment (Cal.
Const., art. I, § 17). In re Reed, 33 Cal.3d 914 (1983). In 1984, the California Court of Appeal
relied on the decision in Reed to hold that “the continuing penalty of sex offender registration is
out of all proportion to the crime of misdemeanor indecent exposure.” In re King, 157 Cal. App.
3d 554, 558 (1984). CDCR‟s 1999 memorandum informing plaintiff that the R-suffix would be
removed his classification cited King as the legal basis for that administrative decision. (Compl.,
Ex. B.) The California Supreme Court never squarely addressed the intermediate court‟s ruling in
King or the status of indecent exposure under § 290 and Reed. In 2004, however, the California
Supreme Court expressly overruled Reed. In In re Alva, 33 Cal.4th 254 (2004), the court held
that “California‟s law requiring the mere registration of convicted sex offenders is not a punitive
measure subject to either state or federal proscriptions against punishment that is „cruel‟ and/or
„unusual.‟” Alva, 33 Cal. 4th at 262. The petitioner in Alva had been convicted of misdemeanor
possession of child pornography. As before, the California Supreme Court offered no explicit
extension of the new ruling to convictions for misdemeanor indecent exposure. Six months later,
though, the same intermediate appellate court that had applied Reed‟s ban to a conviction for
misdemeanor indecent exposure in King abrogated that ruling, concluding that Alva‟s analysis
“applies with equal force to any of the misdemeanor crimes listed in section 290, subdivision
(a)(2)(A).” In re Noriega, 124 Cal. App.4th 1334, 1342 (2004) (emphasis added). Thus King is
no longer good law. Like the plaintiff in this case, the defendant in Noriega had been convicted
of misdemeanor indecent exposure. The decision in Noriega required that defendant to register as
a sex offender under § 290. This court‟s survey of California law uncovers no ruling inconsistent
with Noriega‟s holding. The undersigned concludes, therefore, that after an ambiguous reprieve
starting in 1984, plaintiff fell under the registration requirement of §290 again in 2004 and has
remained there ever since.
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IV. Defendant Robinson‟s summary judgment motion for failure to exhaust

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Defendant Robinson initially filed a single motion to dismiss under Rule 12, arguing: (1)

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plaintiff has failed to exhaust his administrative remedies prior to filing suit as required; (2)

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plaintiff has failed to state any federal claim on which relief could be granted; (3) plaintiff has

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failed to plead any viable state law claims; and (4) defendant Robinson is entitled to qualified

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immunity. (See Doc. No. 43.) Two weeks prior to Robinson‟s filing his motion to dismiss,

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however, the Ninth Circuit decided Albino v. Baca, 747 F.3d 1162, 1168-77 (9th Cir. 2014),

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holding that in most cases the appropriate procedural device for arguing failure to exhaust

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administrative remedies as a basis for dismissal is a motion for summary judgment under Federal

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Rule of Civil Procedure 56. On June 3, 2014, this court, relying on Albino, denied Robinson‟s

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motion to dismiss in part and without prejudice and gave him thirty days in which to re-file his

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exhaustion argument via a motion for summary judgment. (See Doc. No. 52.) Defendant

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Robinson complied with that order, and plaintiff timely filed his oppositions to the defendant‟s

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motions. (See Docs. 53, 56.)

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By the Prison Litigation Reform Act of 1995 (PLRA), Congress amended 42 U.S.C. §

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1997e to provide that “[n]o action shall be brought with respect to prison conditions under section

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1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other

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correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C.

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§ 1997e(a). The exhaustion requirement “applies to all inmate suits about prison life, whether

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they involve general circumstances or particular episodes, and whether they allege excessive

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force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002).

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The United States Supreme Court has ruled that exhaustion of prison administrative

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procedures is mandatory regardless of the types of degrees of relief a state‟s correctional system

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offers. See Booth v. Churner, 532 U.S. 731, 741 (2001). The Supreme Court has further

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cautioned against reading futility or other exceptions into the statutory exhaustion requirement.

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See id. at 741 n.6. Moreover, because proper exhaustion is necessary, a prisoner cannot satisfy

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the exhaustion requirement by filing an untimely or otherwise procedurally defective

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administrative grievance or appeal. See Woodford v. Ngo, 548 U.S. 81, 90-93 (2006). “[T]o
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properly exhaust administrative remedies prisoners „must complete the administrative review

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process in accordance with the applicable procedural rules,‟ [ ] – rules that are defined not by the

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PLRA, but by the prison grievance process itself.” Jones v. Bock, 549 U.S. 199, 218 (2007)

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(quoting Woodford, 548 U.S. at 88). See also Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir.

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2009) (“The California prison system‟s requirements „define the boundaries of proper

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exhaustion.‟”).

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A court may excuse a prisoner from complying with the PLRA‟s exhaustion requirement

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if he establishes that the existing administrative remedies were effectively unavailable to him.

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See Albino, 747 F.3d at 1172-73. For example, where prison officials improperly screen out

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inmate grievances, they can render administrative remedies effectively unavailable. See Sapp v.

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Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010). In such a case, “the inmate cannot pursue the

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necessary sequence of appeals . . . .” Id. See also Nunez v. Duncan, 591 F.3d 1217, 1226 (9th

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Cir. 2010) (excusing an inmate‟s failure to exhaust because he was precluded from exhausting his

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administrative remedies by a warden‟s mistaken instruction to him that a particular unavailable

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document was needed for him to pursue his inmate appeal); Marella, 568 F.3d 1024 (excusing an

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inmate‟s failure to exhaust because he did not have access to the necessary grievance forms to

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timely file his grievance).

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The PLRA exhaustion requirement is not jurisdictional; it creates an affirmative defense

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that defendants must plead and prove. See Jones, 549 U.S. at 216 (“[I]nmates are not required to

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specially plead or demonstrate exhaustion in their complaints.”); Albino, 747 F.3d at 1168. A

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defendant may move for dismissal under Federal Rule of Civil Procedure 12(b)(6) “[i]n the rare

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event” that a prisoner‟s failure to exhaust is clear on the face of the complaint. Albino, 747 F.3d

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at 1168-69. Otherwise defendants must move for summary judgment under Federal Rule of Civil

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Procedure 56 and produce probative evidence that proves a prisoner‟s failure to exhaust. See id.

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at 1166. Specifically, “the defendant‟s burden is to prove that there was an available

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administrative remedy, and that the prisoner did not exhaust that available remedy.” Id. at 1172.

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If the defendant carries that burden, “the prisoner has the burden of production. That is, the

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burden shifts to the prisoner to come forward with evidence showing that there is something in
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his particular case that made the existing and generally available administrative remedies

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effectively unavailable to him.” Id. If the undisputed evidence viewed in the light most favorable

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to the prisoner demonstrates a failure to exhaust, the court should grant defendant‟s motion for

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summary judgment. Id. at 1166. On the other hand, if there are material facts in dispute, the

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court should deny defendant‟s motion summary judgment. Id.
In California, prisoners may appeal “any policy, decision, action, condition, or omission

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by the department or its staff that the inmate or parolee can demonstrate as having a material

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adverse effect upon his or her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1(a).

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Prior to January 28, 2011,
California‟s Department of Corrections provide[d] a four-step
grievance process for prisoners who seek review of an
administrative decision or perceived mistreatment. Within fifteen
working days of “the event or decision being appealed,” the inmate
. . . ordinarily [was to] file an “informal” appeal, through which
“the appellant and staff involved in the action or decision attempt to
resolve the grievance informally.” Cal. Code Regs., tit. 15, §§
3084.5(a), 3084.6(c) (2009). [Footnote omitted.] If the issue [was]
not resolved during the informal appeal, the grievant next
proceed[ed] to the first formal appeal level, usually conducted by
the prison‟s Appeals Coordinator. Id. §§ 3084.5(b), 3084.6(c).
Next [was] the second level, providing review by the institution‟s
head or a regional parole administrator, and the third level, in which
review is conducted by a designee of the Director of the
Department of Corrections. [Footnote omitted.] Id. § 3084.5(e)(1)(2).

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Brown v. Valoff, 422 F.3d 926, 929-30 (9th Cir. 2005).4

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In this case, it is not disputed that plaintiff did not file any inmate grievance concerning

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the classification process in his case until July 21, 2010, the same day he learned from the initial

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classification committee at Folsom that the R-suffix had been attached to his status. Defendant

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CDCR regulations governing the grievance and appeals process underwent significant
modifications that became effective January 28, 2011. One of those changes extended the time
limit for filing an initial grievance from fifteen days to thirty days; that regulation was relisted
from § 3084.6(c) (2009) to § 3084.8(b). See Garland v. Lewis, No. CV 10-9010 FMO (OPx),
2013 WL 4198278 at *7 (C.D. Cal. Aug. 12, 2013). Defendant Robinson erroneously cites the
thirty-day limit as applicable here. However, all relevant facts concerning exhaustion in this case
occurred in 2009 and 2010, prior to the date these amendments became effective. Accordingly,
the pre-amendment fifteen-day window is the applicable time period in this case.
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Robinson argues that plaintiff was on notice of the R-suffix no later than February 4, 2009, the

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date of the initial classification committee‟s hearing at CTF, and that the administrative appeal

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plaintiff filed in July 2010 was therefore too late to exhaust any claims against him. Plaintiff

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responds that since he did not know that the R-suffix was attached to his classification status until

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July 21, 2010, he could not have filed a grievance against Robinson before that date.

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1. Exhaustion of the retaliation claim against Robinson
The court takes plaintiff‟s allegation that he did not learn about the R-suffix until his

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transfer to Folsom in July 2010 to be true. However, that allegation would not have been relevant

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to an inmate grievance based on defendant Robinson‟s alleged conduct at his meeting with

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plaintiff on January 27, 2009, and at the hearing of February 4, 2009, where the re-classification

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process began. Of the numerous federal claims plaintiff has levied against defendant Robinson,

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only the claim for retaliation arises purely from plaintiff‟s allegations concerning Robinson‟s

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conduct. It is therefore the only claim that is not arguably dependent on the final outcome of the

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February 4, 2009 hearing, i.e., the decision to give plaintiff the R-suffix.5

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According to plaintiff‟s own version of events, defendant Robinson‟s conduct in January

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and February 2009 made it apparent to him that Robinson was acting out of a retaliatory motive

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in recommending the R-suffix be affixed to his custody classification. Insofar as the complaint

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does not allege Robinson took any further action against plaintiff after the hearing of February 4,

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2009, the fact that plaintiff did not learn about the final decision on the R-suffix until July 2010 is

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irrelevant to plaintiff‟s failure to file an inmate grievance with respect to Robinson‟s alleged acts

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of retaliation when plaintiff became aware of those acts. There is no question plaintiff understood

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that the classification committee at CTF had convened to discuss whether to recommend affixing

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the R-suffix to his custody classification. Moreover, there is no dispute plaintiff understood

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If, for example, plaintiff alleged that defendant Robinson used excessive force against him at
the February 4 hearing, a grievance for that conduct obviously would have accrued right then,
regardless of the outcome of the hearing. Likewise, a grievance based on Robinson‟s alleged
retaliation against plaintiff accrued when plaintiff became aware of Robinson‟s alleged
motivation to retaliate through the classification process regardless of whether Robinson was
successful in recommending the R-suffix or when plaintiff finally found out about Robinson‟s
success in actually getting the suffix affixed.
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Robinson‟s role in the classification process was limited to making a recommendation on

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February 4 to affix the R-suffix to plaintiff‟s custody status. Defendant Robinson did not have

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authority to do more than make his recommendation that day; plaintiff himself is adamant that the

4

final decision was for another officer to make. Plaintiff is just as adamant that he had come to

5

believe defendant Robinson was acting out of hostility toward him by the time the hearing of

6

February 4 was over. Indeed, plaintiff claims that as he left that hearing, he “made a conscious

7

decision right there and then to stay as far away from defendant R. Robinson as possible.”

8

(Complaint, ¶ 118.) Yet plaintiff offers nothing as to why he did not file an inmate grievance

9

against defendant Robinson for retaliation or any other wrongful conduct within fifteen days of

10
11

the hearing.
Plaintiff suspected or had good reason to suspect no later than February 4, 2009, that

12

Robinson was carrying out some kind of retaliation against him through the classification process.

13

Therefore any claim based on allegations of retaliation against Robinson, or any other claim

14

based on Robinson‟s conduct or presence at the 2009 hearing, is unexhausted due to plaintiff‟s

15

failure to pursue a timely inmate appeal with respect to that conduct.

16
17

2. Plaintiff‟s failure to alert officials to Robinson‟s alleged conduct
An inmate appeal not only must be timely in order to exhaust a future claim presented in a

18

civil action, it must also provide the factual detail required by prison regulations so that prison

19

officials have notice of the nature of the prisoner‟s complaint. As a general matter, the level of

20

specificity necessary to exhaust a claim in a prison appeal is not very high:

21
22
23
24

A grievance need not include legal terminology or legal theories
unless they are in some way needed to provide notice of the harm
being grieved. A grievance also need not contain every fact
necessary to prove each element of an eventual legal claim. The
primary purpose of a grievance is to alert the prison to a problem
and facilitate its resolution, not to lay the groundwork for litigation.

25

Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). See also Morton v. Hall, 599 F.3d 942,

26

946 (9th Cir. 2010) (applying Griffin to CDCR regulations governing prison grievances). Where

27

a prisoner‟s inmate appeal “does not . . . challenge the plaintiff‟s [classification] based on alleged

28

retaliatory conduct[,]” a § 1983 claim for retaliation is unexhausted. Dixon v. LaRosa, No. 2:1012

1

cv-1441 GEB KJN P, 2011 WL 3875806 at *11 (E.D. Cal. Aug. 31, 2011). If “[p]laintiff‟s

2

appeal . . . clearly complains about denial of due process rights but not retaliation,” the claim for

3

retaliation is unexhausted. Goolsby v. Gonzalez, No. 1:11-cv-0394-LJO-GSA-PC, 2014 WL

4

7272765 at *13 (E.D. Cal. Dec. 18, 2014).

5

Here, plaintiff‟s inmate appeal regarding his receiving of the R-suffix complained that

6

there was no evidence to support the R-suffix and that it was affixed to his classification status

7

without due process and contrary to CDCR regulations. (See Complaint, Ex. J.) Those

8

allegations do nothing to apprise prison officials of the retaliatory conduct plaintiff would later

9

allege against defendant Robinson in this lawsuit. Plaintiff made no mention of Robinson in the

10

appeal, did not reference the February 4, 2009 hearing at CTF, and did not describe any action

11

suggesting that a prison official had retaliated against plaintiff in any way. See Goolsby, 2014

12

WL 7272765 at *13 (“Plaintiff was not required to name all the defendants, state legal theories, or

13

use the word „retaliation,‟ but the language of the written appeals, without more, did not address

14

Plaintiff‟s retaliation claim.”).

15

In fact, plaintiff‟s use of the inmate grievance process in 2010 could not have alerted a

16

CDCR official to the possibility that he was complaining about any wrongful conduct or decision

17

for which defendant Robinson was responsible. Plaintiff‟s inmate appeal specifically attacked the

18

decision of Folsom‟s classification committee to keep the R-suffix in place; it does not mention

19

anything that allegedly happened at CTF, where defendant Robinson first recommended the

20

affixing of the R-suffix to plaintiff‟s classification in February 2009. (See Complaint, Ex. J.)

21

The fact that plaintiff challenged the R-suffix as soon as he learned about its imposition in July

22

2010 does not exhaust every related, alleged wrong that plaintiff believes occurred in the inmate

23

classification process going back to early 2009, alleged wrongs of which plaintiff was clearly

24

aware when they occurred. “Where one set of facts and circumstances gives rise to more than

25

one potential claim, the plaintiff cannot exhaust all of the potential claims by merely exhausting

26

one such claim.” Johnson v. Woodford, No. CV 04-05995-GHK (CT), 2010 WL 4007308 at *4

27

(C.D. Cal. Apr. 20, 2010) (relying on the decision in Morton). See also Escobar v. Smith, No.

28

2:12-cv-0773 GEB DAD P, 2012 WL 5465889 at *4 (E.D. Cal. Nov. 7, 2012) (stating that
13

1

although the inmate complained to prison officials about being deprived of medication, his

2

grievance “did not give prison officials a fair opportunity to respond to a complaint that he was

3

being wrongfully deprived of surgery”).

4

Plaintiff cannot plausibly show that his use of the inmate grievance process in 2010 put

5

prison officials on notice about any complaint that could be imputed to defendant Robinson. As a

6

result, all of plaintiff‟s claims against defendant Robinson were unexhausted at the time this civil

7

action was filed. Accordingly, defendant Robinson‟s motion for summary judgment for failure to

8

exhaust prior to filing suit should be granted thereby rendering defendant Robinson‟s motion to

9

dismiss the claims against him under Rule 12(b)(6) moot.

10

IV. Motions to dismiss under Rule 12(b)(6)

11

Defendants Jordan, Marton, Pulley, Ostrom, Donnelly, Fransham, Jacquez and Wilkinson6

12

have jointly filed a motion seeking dismissal of all of plaintiff‟s claims under Federal Rule of

13

Civil Procedure 12(b)(6), for failure to state a claim on which relief could be granted. Defendant

14

Robinson has filed a separate motion dismiss on the same ground, but as stated above, it will be

15

rendered if the undersigned‟s recommendation that his motion for summary judgment due to

16

plaintiff‟s failure to exhaust prior to filing suit be granted is adopted. Nevertheless, the court will

17

also analyze the viability of plaintiff‟s claims against defendant Robinson under Rule 12(b)(6).

18

Finally, defendant King has also filed a separate motion to dismiss under Rule 12(b)(6).7

19

In considering a motion under Rule 12(b)(6), the court must accept the allegations of the

20

complaint as true, Erickson v. Pardus, 551 U.S. 89, 94 (2007), and construe the complaint in the

21

light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Pro se

22

pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v.

23
24
25

6

The court refers occasionally to these defendants as “the joint defendants” or “jointly moving
defendants.”
7

26
27
28

Defendant King‟s argument in support of her motion to dismiss appears to be cut-and-pasted
verbatim from the memorandum submitted by the jointly moving defendants. (Doc. No. 37 at 830.) Not even the names of the joint defendants are changed to “defendant King” where it would
be appropriate. Needless to say, the arguments presented in such a fashion by counsel for
defendant King are unhelpful.
14

1

Kerner, 404 U.S. 519, 520 (1972). Still, to survive dismissal for failure to state a claim, a pro se

2

complaint must contain more than “naked assertions,” “labels and conclusions” or “a formulaic

3

recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

4

555-57 (2007). “Threadbare recitals of the elements of a cause of action, supported by mere

5

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

6

a claim upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at

7

570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the

8

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

9

Iqbal, 556 U.S. at 678. Attachments to a complaint are considered to be part of the complaint for

10

purposes of a motion to dismiss for failure to state a claim. Hal Roach Studios v. Richard Feiner

11

& Co., 896 F.2d 1542, 1555 n.19 (9th Cir.1990).

12

A. Plaintiff‟s due process claims

13

Plaintiff contends that defendants Robinson, King and Jordan violated his right to due

14

process in recommending the R-suffix be attached to his classification status at the hearing held at

15

CTF on February 4, 2009. (Compl. at ¶ 443.) Again, according to plaintiff, King and Robinson

16

attended the hearing (along with non-party Todd), while Jordan merely signed the 128-G form

17

memorializing the recommendation. Plaintiff alleges defendant Donnelly also violated his right

18

to due process by approving the recommendation. (Id. at ¶ 448.) Plaintiff alleges defendant

19

Jacquez violated his right to due process in failing to remove the R-suffix once he arrived at

20

Folsom in July 2010. (Id. at ¶¶ 450-53.) He also alleges defendants Wilkinson, Pulley and

21

Marton violated his right to due process in the UCC hearing of December 2011. (Id. at ¶¶ 464,

22

467.) Plaintiff claims that defendants Fransham, Pulley and Ostrom deprived him of due process

23

in their handling of his inmate appeals before and after the UCC hearing of December 2011. (Id.

24

at ¶¶ 456, 460-61, 470, 472.)

25

A liberty interest that requires the protections of due process arises from one of two

26

sources: the Due Process Clause of the Fourteenth Amendment or state law. Wilkinson v.

27

Austin, 545 U.S. 209, 222 (2005). Prisoners have no freestanding right under the Fourteenth

28

Amendment to any particular security classification. See Neal v. Shimoda, 131 F.3d 818, 828
15

1

(9th Cir.1997) (citing Moody v. Daggett, 429 U.S. 78, 88 n. 9 (1976)). Therefore any liberty

2

interest plaintiff had in avoiding the R-suffix must be grounded in California‟s correctional

3

statutes or in CDCR regulations.

4

In Sandin v. O‟Connor, 515 U.S. 472, 483-84 (1995), the Supreme Court held that a

5

state‟s correctional law creates a liberty interest if it “imposes atypical and significant hardship on

6

the inmate in relation to the ordinary incidents of prison life.” Sandin and its progeny identify

7

three factors to consider in determining whether an atypical and significant hardship exists: (1)

8

whether the conditions “mirrored those conditions imposed . . . in analogous discretionary

9

confinement settings, namely administrative segregation and protective custody;” (2) the duration

10

and intensity of the conditions; and (3) whether the change in confinement would “inevitably

11

affect the duration of [the prisoner‟s] sentence.” Chappell v. Mandeville, 706 F.3d 1052, 1064

12

(9th Cir.2013) (citation omitted) (alteration in original).

13

If a state regulation creates a liberty interest in avoiding a particular decision or condition

14

of confinement, prison officials must provide a prisoner with a hearing on that decision plus: (1)

15

written notice of the charges or allegations to be considered at the hearing; (2) a brief period after

16

notice, no less than twenty-four hours, to prepare for the hearing; (3) a written statement by the

17

fact-finder regarding the evidence and reasons for the finding; and (4) an opportunity to seek

18

assistance if the inmate is illiterate or the issues are complex. Wolff v. McDonnell, 418 U.S. 539,

19

563-70 (1974).

20

In this case, the court need not consider whether the plaintiff had a liberty interest in not

21

being classified with the R-suffix, for even assuming he did, plaintiff has received all the process

22

due.

23
24
25
26

An inmate who has been convicted of a sex crime in a prior
adversarial setting, whether as the result of a bench trial, jury trial
or plea agreement, has received the minimum protections required
by due process. Prison officials need do no more than notify such
an inmate that he has been classified as a sex offender because of
his prior conviction for a sex crime.

27

Neal, 131 F.3d at 831. As explained in footnote 3 above, California courts questioned for some

28

time whether § 290 could be constitutionally applied to a person convicted of misdemeanor
16

1

indecent exposure. However, there was no such question in 1977, when plaintiff pled guilty to

2

that violation, nor is there any such question now. If the court were addressing plaintiff‟s due

3

process claim with that issue still unresolved, it might pause at the validity of plaintiff‟s 1977

4

conviction as “all the process due.” But the legality of plaintiff‟s conviction as a pre-requisite for

5

California‟s sex offender registry is now well settled in California law, and, according to the

6

Ninth Circuit in Neal, it is dispositive of his due process claim. Pursuant to the decision in Neal,

7

plaintiff‟s plea of guilty to one count of misdemeanor indecent exposure met the minimum due

8

process protections required before prison officials classified him as a sex offender pursuant to

9

CDCR regulations and California Penal Code § 290. See Washington v. Woodford, No. C 05-

10

2889 SI (PR), 2005 WL 3096116, at *3 (N.D. Cal. Nov. 14, 2005) (“[T]here was no due process

11

violation in adding to Washington‟s classification score the “R” suffix that indicated he had a sex

12

crime history. As the state habeas court noted, Washington did not dispute that he had the

13

requisite sex offense conviction. Washington‟s criminal case provided the procedural protections

14

necessary before the prison officials could label him as a sex offender. [¶] The fact that the “R”

15

suffix allegedly was not added to Washington‟s classification score within the time frame

16

provided by the state regulations does not make it a federal due process violation. A violation of

17

the state's regulation is not actionable under 42 U.S.C. § 1983.”) Plaintiff‟s claim that affixing

18

the R-suffix to his custodial classification violated his right to due process should therefore be

19

dismissed as to all defendants.

20
21

B. Plaintiff‟s equal protection claims
Plaintiff also alleges the defendants violated his right to equal protection under the

22

Fourteenth Amendment. (See Complaint at ¶¶ 451, 453, 458, 461, 464, and 470.) “The Equal

23

Protection Clause of the Fourteenth Amendment commands that no State shall „deny to any

24

person within its jurisdiction the equal protection of the laws,‟ which is essentially a direction that

25

all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr.,

26

473 U.S. 432, 439 (1985) (citation omitted). Typically, “[t]o state a § 1983 claim for violation of

27

the Equal Protection Clause a plaintiff must show that the defendants acted with an intent or

28

purpose to discriminate against the plaintiff based upon membership in a protected class.”
17

1

Thornton v. City of St. Helens, 425 F.3d 1158, 1166 (9th Cir. 2005) (internal quotation marks and

2

citations omitted). A claimant may also attack a “facially neutral” regulation or policy under the

3

Equal Protection Clause, but “proof of its disproportionate impact on an identifiable group can

4

satisfy the intent requirement only if it tends to show that some invidious or discriminatory

5

purpose underlies the policy.” Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001)

6

(citations omitted). Moreover, a regulation that purposefully affects a non-protected group

7

remains constitutional as long as it bears some rational relation to a governmental purpose. Id. at

8

687. Therefore a prison policy that treats a non-protected class of inmates differently from

9

similarly situated prisoners is constitutional if it is rationally related to legitimate correctional

10

goals. Id.; Brignac v. Kimzey, No. CIV S-07-0624 GEB DAD P, 2009 WL 545991 at *3 (E.D.

11

Cal. Mar. 4, 2009) (“Moreover, prisoners incarcerated at different state prisons are not „similarly

12

situated.‟ The court is aware that state prisons vary based on security level, inmate population

13

and other factors. The educational programming available at New Folsom may well be different

14

than what is available at other state prisons without violating the Equal Protection Clause.”)

15

Plaintiff does not allege that his inclusion in a particular group, protected or non-

16

protected, motivated prison officials to treat him differently from other similarly situated

17

prisoners. In fact, plaintiff‟s allegations of equal protection violations amount to no more than

18

due process claims of “atypical and significant hardship” alongside which plaintiff applies the

19

label “equal protection” for good measure. (See Complaint at ¶¶ 451, 453, 458, 461, 464, and

20

470.) However, plaintiff alleges no facts explaining how he was targeted for a discriminatory

21

purpose or even how his treatment differed adversely from that accorded other prisoners. The

22

undersigned finds nothing in plaintiff‟s complaint that would, if true, support a cause of action for

23

violation of plaintiff‟s right to equal protection against any defendant.
C. Plaintiff‟s retaliation claims

24
25

Plaintiff has alleged defendants Robinson, King and Jordan violated his rights under the

26

First Amendment when they used their recommendation of the R-suffix to retaliate against him

27

for the inmate grievance he filed several years earlier against Robinson. (Compl. at ¶ 442.) He

28

/////
18

1

incorporates by reference the same claim against defendants Jacquez, Fransham, Pulley,

2

Wilkinson, Marton and Olstrom. (Id. at ¶¶ 450, 456, 460, 467 and 472.)

3

It is well established that a facially legitimate prison security measure, such as a change in

4

a prisoner‟s custody classification, may be actionable under the Civil Rights Act if it is carried out

5

in retaliation for the prisoner‟s decision to engage in constitutionally protected conduct. See

6

Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1995). A plaintiff who claims a prison official

7

retaliated against him must show: (1) that a state actor took some adverse action against him (2)

8

because of (3) the prisoner‟s protected conduct, and that such action (4) chilled the inmate‟s

9

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

10
11

correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).
The burden is on the plaintiff to plead and prove the absence of any legitimate penological

12

purpose in the act that he alleges was retaliatory in nature. See Pratt v. Rowland, 802, 806 (9th

13

Cir. 1995). The Supreme Court has approved of requiring a plaintiff who alleges retaliation to

14

show that his exercise of constitutionally protected conduct was a “substantial factor” or

15

“motivating factor” behind the state actor‟s adverse action when that action appears on the

16

surface to be legally justified. See Mt. Healthy City Bd. of Education v. Doyle, 429 U.S. 274,

17

287 (1977).

18

According to the allegations of his complaint, plaintiff first learned of Robinson‟s

19

intention to recommend the imposition of the R-suffix at a meeting with Robinson on January 27,

20

2009. The complaint describes Robinson behaving at that meeting in a way that could suggest a

21

retaliatory motive, telling plaintiff that “[i]f you don‟t like it, appeal it, or file one of your little

22

complaints, you like to do that – right.” (Complaint at ¶ 86.) Robinson‟s alleged intention

23

became manifest at the hearing of February 4, 2009, when he followed through with the

24

recommendation and continued to behave in a way suggesting personal animosity toward the

25

plaintiff.

26

The complaint alleges facts that, if proved, could be the basis of a claim for retaliation

27

against defendant Robinson – but only Robinson. Although plaintiff avers in conclusory fashion

28

some sort of collusion between Robinson and other defendants who were involved in his
19

1

classification process at CTF in 2009,8 the complaint contains no facts supporting a reasonable

2

inference that any defendant besides Robinson was motivated to repay plaintiff for an inmate

3

grievance he filed against Robinson several years prior. Plaintiff admits as much in his

4

opposition to the joint motion to dismiss, in which he argues “[t]here is only one reason that the

5

plaintiff thirty-seven years after suffering a misdemeanor conviction is now deemed to be a threat

6

to anyone; and that reason being only due to the fact that the plaintiff had the misfortune of again

7

crossing paths with defendant R. Robinson.” (Opposition (Doc. No. 40) at 26.)

8
9
10

Plaintiff has therefore failed to state a cognizable claim of retaliation against defendants
King, Jordan, Jacquez, Fransham, Pulley, Wilkinson, Marton and Olstrom. Accordingly, their
motions to dismiss that claim should be granted.
D. Plaintiff‟s Eighth Amendment claims

11
12

Plaintiff makes blanket allegations against the defendants that their participation in the re-

13

classification process violated his right to be free from cruel and unusual punishment under the

14

Eighth Amendment. (Compl. at ¶¶ 444, 454, 462, 466 and 471.)

15

The Eighth Amendment protects prisoners from inhumane conditions of confinement and

16

from the “wanton and unnecessary infliction of pain.” Rhodes v. Chapman, 452 U.S. 337, 347

17

(1981). Inhumane conditions exist when a prisoner is deprived of the “minimal civilized measure

18

of life‟s necessities” – food, clothing, shelter, medical care and personal safety. Id. at 347;

19

Farmer v. Brennan, 511 U.S. 825, 832 (1994). “[A] prison official cannot be found liable under

20

the Eighth Amendment for denying an inmate humane conditions of confinement unless the

21

official knows of and disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S.

22

at 837. A plaintiff who claims that his conditions of confinement fall below the constitutional

23

standard must make two showings. “First, the plaintiff must make an „objective‟ showing that the

24

deprivation was „sufficiently serious‟ to form the basis for an Eighth Amendment violation.”

25

Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (citation omitted). “The Constitution . . .

26
27
28

8

See, e.g., Counts I and II of the complaint, in which plaintiff alleges that defendants Robinson,
King and Jordan acted “individually and collectively” in retaliating against plaintiff for his
previously filed grievances. (Compl. at ¶¶ 442-43.)
20

1

„does not mandate comfortable prisons, and only those deprivations denying „the minimal

2

civilized measure of life‟s necessities‟ are sufficiently grave to form the basis of an Eighth

3

Amendment violation.” Wilson v. Seiter, 501 U.S. 294, 298 (1991) (citations omitted). Second,

4

the prisoner must make a “subjective” showing that prison officials “acted with the requisite

5

culpable intent such that the infliction of pain is „unnecessary and wanton.‟ In prison conditions

6

cases, prison officials act with the requisite culpable intent when they act with deliberate

7

indifference to the inmate‟s suffering.” Anderson v. County of Kern, 45 F.3d 1310, 1312 (9th

8

Cir.1995).
“Prison officials have a duty to take reasonable steps to protect inmates from physical

9
10

abuse.” Hoptowit v. Ray, 682 F.2d 1237, 1250-51 (9th Cir. 1982). A violation of this duty

11

entails deliberate indifference to the inmate‟s safety – that is, a prison official must know of and

12

disregard an excessive risk to the inmate‟s safety. Farmer, 511 U.S. at 837. The very

13

obviousness of the risk may be sufficient to establish a defendant‟s knowledge. Id. at 842; Wallis

14

v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995). For example, the Ninth Circuit has held that

15

calling a prisoner a “snitch” in the presence of other inmates was sufficient to state a claim of

16

deliberate indifference to the inmate‟s safety as well as a claim of retaliation. See

17

Vanlandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989).

18

In this case, the only allegation of plaintiff‟s complaint that plausibly satisfies the

19

objective element of an Eighth Amendment claim is the suggestion that the R-suffix puts plaintiff

20

in physical danger. In Paragraph 212 of his complaint, plaintiff references the “‟sex offender‟

21

stigma” and his “fear for his safety should the information fall on the wrong ears.” In his

22

opposition to the pending motion to dismiss, plaintiff says “[i]t is no secret what the „R‟ suffix

23

implications are, and what impact such a classification will have on a white male prisoner

24

incarcerated within the California state correctional system.” (Opposition (Doc. No. 40) at 50-

25

51.) In his opposition plaintiff repeats the statement in his complaint that “[p]laintiff has, since

26

learning of the „R‟ suffix attachment to his paperwork, been in extreme fear for his safety.” (Id.

27

at 51.)

28

/////
21

1

Courts have not ignored the potentially severe consequences of being known as a “sex

2

offender” in prison. In Neal, the Ninth Circuit was blunt in acknowledging that “[w]e can hardly

3

conceive of a state‟s action bearing more „stigmatizing consequences‟ than the labeling of a

4

prison inmate as a sex offender.” Neal, 131 F.3d at 829. In Neal the court analyzed a due process

5

claim, but the seriousness of the “sex offender” label in prison is tangible enough to support, in

6

certain circumstances, a claim that a defendant used the dangerous implications of that label or

7

ignored them in deliberate indifference to an inmate‟s safety. See, e.g., Knight v. Runnels, No.

8

CIV S-07-0751-FCD-CMK-P, 2007 WL 2390139 at * 2 (E.D. Cal. Aug. 20, 2007) (finding both

9

prongs of a deliberate indifference claim were sufficiently pled where plaintiff “allege[d] that this

10

defendant put a „R-suffix‟ in his file knowing that, if plaintiff was put in the general population,

11

he would be stabbed”); Sims v. Woodford, No. 1:05-cv-1523-LJO-DLB (PC), 2008 WL 669943

12

at *5 (E.D. Cal. Mar. 7, 2008) (denying a motion to dismiss under Rule 12(b)(6) where the

13

plaintiff had pled that “defendants errantly classified him as a convicted sex offender, and failed

14

to remove that classification subsequent to correspondence from the court to the contrary”);

15

Nailing v. Fosterer, No. CIV S-09-2475-MCE-CMK, 2012 WL 1130655 at *8 (E.D. Cal. Mar. 2,

16

2012) (finding a cause of action sufficiently pled because “a reasonable jury could conclude that

17

defendants were deliberately indifferent to the generally known risk sex offenders face in the

18

prison general population”). Although in this case plaintiff‟s complaint is spare in detailing the

19

extent to which the R-suffix places him in danger of abuse by other inmates, at this stage of the

20

litigation the court must give the complaint a liberal reading and draw all inferences from it in the

21

plaintiff‟s favor. Therefore the court finds that plaintiff has sufficiently pled the objective

22

element of his Eighth Amendment claim.

23

However, plaintiff‟s claim that defendants were deliberately indifferent to his safety – the

24

second, or subjective, element of an Eighth Amendment claim – is cognizable against defendant

25

Robinson only. This determination follows from the court‟s conclusion, discussed above, that

26

plaintiff adequately pled his retaliation claim against Robinson only. That is, it is plausible that

27

every defendant knew the danger an R-suffix could impose on the plaintiff, but only defendant

28

Robinson‟s alleged, retaliatory motive supplies the state of mind necessary to plead a claim of
22

1

deliberate indifference under the Eighth Amendment. See Vanlandingham, 866 F.2d at 1138.

2

The allegations of the complaint do not support an inference that any defendant besides Robinson

3

participated in the re-classification process to retaliate against the plaintiff; therefore it does not

4

support an inference that any other defendant harbored the only state of mind that qualifies as

5

deliberate indifference in this case.

6

For these reasons, the undersigned concludes that plaintiff has failed to state a cognizable

7

Eighth Amendment claim against defendants King, Jordan, Jacquez, Fransham, Pulley,

8

Wilkinson, Marton and Olstrom. Therefore, their motions to dismiss that claim should be

9

granted.

10

E. Other federal claims

11

To the extent that the complaint contains other federal claims under the First, Eighth or

12

Fourteenth Amendments, they are too vaguely alleged to meet the federal rules‟ “demand [for]

13

more than an unadorned . . . accusation” that a defendant unlawfully injured the plaintiff. Iqbal,

14

556 U.S. at 678; see also Fed. R. Civ. P. 8(a)(2) (requiring a federal complaint to present a “short

15

and plain statement” of the claim that entitle a plaintiff to relief). Although plaintiff‟s allegations

16

of the Eighth and Fourteenth Amendment violations leave little space for speculation, the court

17

finds the joint defendants‟ expressed concern for loose ends under plaintiff‟s broad First

18

Amendment accusations is well taken. Having carefully reviewed plaintiff‟s extraordinarily long,

19

wide-ranging complaint, the court finds only one outstanding claim: at various points in his

20

complaint, plaintiff references his First Amendment right to petition the government for redress

21

of grievances. (See, e.g., Compl. at ¶¶ 457, 465 and 469.)

22

Prisoners have a First Amendment right to access to the courts. See Lewis v. Casey, 518

23

U.S. 343, 346 (1996). Prisoners have no freestanding right to a prison grievance process, see

24

Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003), but “a prisoner‟s fundamental right of

25

access to the courts hinges on his ability to access the prison grievance system.” Bradley v. Hall,

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64 F.3d 1276, 1279 (9th Cir. 1995) overruled on other grounds by Shaw v. Murphy, 532 U.S.

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223, 230 n. 2 (2001). To state a viable claim that his right to access the courts has been violated,

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a plaintiff must have suffered an “actual injury” by being shut out of court. Christopher v.
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Harbury, 536 U.S. 403, 415 (2002). Therefore a correctional officer‟s active interference with an

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inmate‟s appeal may be the basis of a claim under the First Amendment if that action disabled the

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inmate from pursuing litigation in court. See Navarro v. Herndon, No. 2:09-cv-1878 KJM KJN

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P, 2012 WL 6097112 at *2 (E.D. Cal. Dec. 7, 2012).

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In this case, plaintiff availed himself of the grievance process at least twice after he

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learned that the R-suffix was part of his classification status. The fact that plaintiff was denied

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administrative relief on procedural bases with which he disagreed does not state a cognizable

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claim that his access to the process itself was unconstitutionally foreclosed. Furthermore, the

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denials of plaintiff‟s inmate grievances, even if improper, have not shut his access to this court,

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nor has plaintiff alleged they have. Rather, plaintiff alleges only that some inmate appeals

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coordinators were negligent or reckless in their attention to his inmate appeals or, at worst,

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unlawfully motivated to deny them. If defendants were to rely on an administrative denial of

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plaintiff‟s inmate grievances to argue that he has not exhausted the inmate grievance procedure,

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plaintiff could then attempt to show that a denial was improper and that he exhausted all

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procedural avenues available to him. The denial of the inmate grievance itself, however, does not

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create an independent cause of action. See Stockton v. Tyson, No. 1:10-cv-0662-BAM PC, 2011

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WL 5118456 at *3 (E.D. Cal. Oct. 27, 2011) (dismissing a complaint on screening because

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“[p]laintiff may not pursue a claim for denial of access to the courts . . . based on the rejection of

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his appeals by staff”); Carroll v. Gricewich, No. 1:07-cv-0070-AWI-NEW (DLB) PC, 2007 WL

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1345340 at *2 (E.D. Cal. May 8, 2007) (collecting cases).

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For these reasons, the undersigned concludes that plaintiff has not stated a viable,

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cognizable claim that his access to the courts has been violated. To the extent plaintiff means to

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allege any other federal claim under the First Amendment or any other constitutional provision,

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such claims are too vaguely described in the complaint to be allowed to go forward.

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F. State law claims

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Plaintiff has also alleged state law claims of negligence, fraud and infliction of emotional

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distress. However, in light of the court‟s conclusion that none of plaintiff‟s federal claims can

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proceed, this court should decline to exercise supplemental jurisdiction under 28 U.S.C. §
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1367(c)(3) and dismiss plaintiff‟s state law claims without prejudice to his pursuing them in state

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court.

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VI. Conclusion

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The court concludes that plaintiff has failed to state any viable claim under the 42 U.S.C.

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§ 1983 against defendants Jordan, Marton, Pulley, Ostrom, Donnelly, Fransham, Jacquez,

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Wilkinson and King. The motions to dismiss all federal claims pursuant to Rule 12(b)(6) brought

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on behalf of those defendants should be granted.

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Plaintiff has, however, stated viable, cognizable claims for retaliation and deliberate

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indifference against defendant Robinson; he has failed to state viable claims against Robinson for

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violations of due process and equal protection. However all of plaintiff‟s claims against

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Robinson are unexhausted. Therefore defendant Robinson‟s motion for summary judgment due

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to plaintiff‟s failure to exhaust administrative remedies prior to filing suit as required should also

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be granted.

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. The motion to dismiss filed by defendants Jordan, Marton, Pulley, Ostrom, Donnelly,

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Fransham, Jacquez and Wilkinson (Doc. No. 26) should be granted with prejudice as to all federal

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claims, for failure to state a claim on which relief could be granted. Fed. R. Civ. P. 12(b)(6). The

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motion to dismiss should be granted without prejudice as to all state law claims, pursuant to 28

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U.S.C. § 1367(c)(3).

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2. The motion to dismiss filed by defendant King (Doc. No. 37) should be granted with

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prejudice as to all federal claims with prejudice, for failure to state a claim on which relief could

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be granted . Fed. R. Civ. P. 12(b)(6). The motion to dismiss should be granted without prejudice

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as to all state law claims, pursuant to 28 U.S.C. § 1367(c)(3).

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3. Defendant Robinson‟s motion for summary judgment (Doc. No. 53) should be granted

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as to all federal claims due to plaintiff‟s failure to exhaust administrative remedies prior to filing

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suit.

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4. Defendant Robinson‟s motion to dismiss should be granted in part and denied in part.
It should be granted without prejudice as to all state law claims, pursuant to 28 U.S.C. §
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1367(c)(3). The motion to dismiss should be denied as moot as to all federal claims alleged

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against defendant Robinson, in light of plaintiff‟s failure to exhaust administrative remedies prior

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to filing suit as required.

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These findings and recommendations are submitted to the United States District Judge

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

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge‟s Findings and Recommendations.” Any response to the

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objections shall be served and filed within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court‟s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: March 1, 2015

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