(PC) Chiprez v. Spearman
Filing
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ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 6/03/21 ORDERING the Clerk of the Court shall randomly assign a United States District Judge to this action. Also, RECOMMENDING that the complaint be dismissed without leave to amend for failure to state a claim. Assigned and referred to Judge Kimberly J. Mueller. Objections due within 21 days.(Plummer, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JESUS CHIPREZ,
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Plaintiff,
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No. 2:19-cv-0619 AC P
v.
M.E. SPEARMAN, et al.,
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ORDER & FINDINGS AND
RECOMMENDATIONS
Defendants.
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Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983.
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I.
Background
Plaintiff filed an original and an amended petition for writ of habeas corpus in 2018,
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challenging prison disciplinary proceedings that had resulted in the loss of good time credits.
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ECF Nos. 1, 8. The magistrate judge previously assigned to the case recommended conversion of
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the action to a civil rights case. ECF No. 14. Plaintiff consented to the conversion, ECF No. 15,
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and was ordered to file a § 1983 complaint, ECF No. 16. The subsequently filed complaint, ECF
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No. 19, was then screened and found to not state any claims for relief, ECF No. 32. Plaintiff was
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given an opportunity to amend the complaint, id. at 8, and his amended complaint is now before
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the court, ECF No. 33.
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II.
Statutory Screening of Prisoner Complaints
The court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are
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“frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[]
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monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b).
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A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.”
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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th
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Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal
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theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639,
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640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as
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stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a
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constitutional claim, however inartfully pleaded, has an arguable legal and factual basis.
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Franklin, 745 F.2d at 1227-28 (citations omitted).
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“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the
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claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of
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what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550
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U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
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“Failure to state a claim under § 1915A incorporates the familiar standard applied in the context
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of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman,
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680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure
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to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a
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cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the
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speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he pleading must contain
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something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally
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cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur
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R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)).
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“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
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relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
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Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual
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content that allows the court to draw the reasonable inference that the defendant is liable for the
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misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this
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standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg.
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Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the
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pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor,
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Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted).
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III.
Complaint
The complaint alleges that defendants Hudson, Moss,1 Thompson, Bautista, Ziehm,
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Hawkins, Gonzales, and Knedler violated plaintiff’s right to due process, retaliated against him,
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and falsified charges against him. ECF No. 33. Specifically, plaintiff alleges that his cellmate
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called Bautista a bitch, which led to Bautista harassing plaintiff and falsely claiming that plaintiff
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threatened his children in retaliation. Id. at 5. While plaintiff was waiting to be taken to the
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program office by Bautista and Ziehm, Hawkins told him to shut up, while Gonzalez threatened
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him in Spanish. Id. at 5. During plaintiff’s disciplinary hearing, Hudson, who was the hearing
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officer, refused to consider videos that plaintiff claims are exculpatory. Id. at 4-5. The videos
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would have allegedly shown Bautista searching the lower tier and then looking at plaintiff’s cell
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and heading straight to it after being told about plaintiff’s cellmate’s comment, as well as Bautista
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and Ziehm plotting to falsify the charges against plaintiff and Knedler reprimanding Bautista in
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the program office. Id. at 5. Moss failed to identify an inmate known as Sly, who plaintiff sought
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to use as a witness, and Thompson failed to respond to a request to use the videos during the
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disciplinary hearing. Id. at 4.
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IV.
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Failure to State a Claim
A. Claim One
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As in the original complaint, Claim One alleges that plaintiff’s procedural due process
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rights were violated at a disciplinary hearing by the denial of audiovisual evidence and the failure
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to identify an inmate porter known as Sly. Despite now identifying the individuals responsible
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Plaintiff also appears to identify defendant Moss as “Mossman.” ECF No. 33 at 4.
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for these alleged violations (Hudson, Moss, and Thompson), plaintiff still fails to allege facts
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sufficient to support a cognizable due process claim.
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Plaintiff has once again failed to provide facts which demonstrate a denial of the
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minimum protections guaranteed by Wolff v. McDonnell, 418 U.S. 539 (1974). Those
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protections include the right to (1) twenty-four-hour advanced written notice of the charges
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against him, id. at 563-64; (2) “a written statement by the factfinders as to the evidence relied on
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and reasons for the disciplinary action,” id. at 564 (internal quotation marks and citation omitted);
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(3) an opportunity to call witnesses and present documentary evidence where doing so “will not
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be unduly hazardous to institutional safety or correctional goals,” id. at 566; (4) assistance at the
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hearing if he is illiterate or if the matter is complex, id. at 570; and (5) a sufficiently impartial fact
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finder, id. at 570-71. As long as the five minimum Wolff requirements are met in a prison
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disciplinary proceeding, due process has been satisfied. Walker v. Sumner, 14 F.3d 1415, 1420
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(9th Cir. 1994).
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Although plaintiff alleges that he was denied the opportunity to present video evidence,
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his assertion that the requested video footage would have shown defendants Bautista and Ziehm
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plotting and Bautista being reprimanded is entirely speculative. Additionally, video surveillance
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footage of Bautista looking up at plaintiff’s cell and then heading up to it would not have any
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obvious probative value as to what was said. Due process requires the opportunity to present a
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defense, within limits; it does not require prison officials to permit, let alone affirmatively obtain
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for an inmate’s use, irrelevant evidence. See Wolff, 418 U.S. at 566.
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There are also no facts indicating a due process violation in Moss’s failure to identify a
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possible inmate witness known only as Sly. As plaintiff was previously advised, investigative
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employees are not required by due process, so their acts and omissions do not implicate plaintiff’s
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due process rights. See Staggs v. Kelly, No. 2:18-cv-2843 KJN P, 2019 U.S. Dist. LEXIS
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145906, at *6, 2019 WL 4034386, at *2 (E.D. Cal. Aug. 27, 2019) (collecting cases). Plaintiff’s
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due process rights cannot have been violated by the failure of prison officials to locate a potential
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witness who plaintiff was unable to identify.
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B. Claim Two
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Claim Two alleges that the disciplinary charge prevents plaintiff from being considered
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for parole under SB 260 and that it was in retaliation for his cellmate’s comments. ECF No. 33 at
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Although plaintiff now claims that he is ineligible for parole under SB 260 rather than
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Proposition 57, his claim is still not cognizable. As plaintiff was advised upon the screening of
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his original complaint, he cannot maintain a due process claim based on denial of early parole
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consideration, because he has no protected liberty interest in parole. There is no right under the
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U.S. Constitution to be conditionally released before the expiration of a valid sentence.
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Swarthout v. Cooke, 562 U.S. 216, 220 (2011); see also Greenholtz v. Inmates of Neb. Penal &
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Corr. Complex, 442 U.S. 1, 7 (1979) (there is no federal constitutional right to parole). It follows
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that there is no constitutional right to parole consideration. Similarly, SB 260, like Proposition
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57, is purely a creature of state law, and deprivation of any rights that it creates therefore cannot
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be vindicated here. See 42 U.S.C. § 1983 (only deprivation of rights secured by federal law is
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actionable under Section 1983); see also Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996)
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(state law issue cannot be transformed into federal law issue by merely invoking due process).
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Plaintiff’s claim for retaliation also fails. To state a viable retaliation claim, plaintiff must
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allege facts establishing the following five elements: “(1) An assertion that a state actor took
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some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and
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that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action
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did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559,
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567-68 (9th Cir. 2005) (footnote and citations omitted). Plaintiff’s cellmate’s comment about
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defendant Bautista is not protected conduct, and even if was, it was not plaintiff’s conduct that
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prompted defendants’ conduct.
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C. Claim Three
Plaintiff once again alleges that the allegations against him on the RVR charges were
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false. ECF No. 33 at 6. In screening the original complaint, plaintiff was advised that false
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statements by a correctional officer do not violate an inmate’s constitutional rights and it would
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be recommended that any such claims be dismissed if they were included in the amended
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complaint. ECF 32 at 6-7.
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V.
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No Leave to Amend
Leave to amend should be granted if it appears possible that the defects in the complaint
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could be corrected, especially if a plaintiff is pro se. Lopez v. Smith, 203 F.3d 1122, 1130-31
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(9th Cir. 2000) (en banc). However, if, after careful consideration, it is clear that a complaint
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cannot be cured by amendment, the court may dismiss without leave to amend. Cato v. United
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States, 70 F.3d 1103, 1105-06 (9th Cir. 1995).
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The undersigned finds that, as set forth above, the complaint fails to state a claim upon
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which relief may be granted. Plaintiff has already been given an opportunity to amend the
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complaint and advised what kind of information he needed to provide. Given the additional facts
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provided by plaintiff, it does not appear that further amendment would result in a cognizable
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claim. As a result, leave to amend would be futile and the complaint should be dismissed without
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leave to amend.
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VI.
Plain Language Summary of this Order for a Pro Se Litigant
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It is being recommended that your complaint be dismissed without leave to amend
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because the rejection of your request for video evidence as irrelevant does not violate due process
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and you have not stated facts showing that relevant evidence actually existed on videotape. For a
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retaliation claim defendants’ must be motivated by you conduct, not someone else’s conduct, and
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that conduct must be protected under the First Amendment. You also cannot base a constitutional
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claim on the violation of state law or false disciplinary charges.
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CONCLUSION
In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the Court
shall randomly assign a United States District Judge to this action.
IT IS FURTHER RECOMMENDED that the complaint be dismissed without leave to
amend for failure to state a claim.
These findings and recommendations are submitted to the United States District Judge
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days
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after being served with these findings and recommendations, plaintiff may file written objections
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with the court. Such a document should be captioned “Objections to Magistrate Judges Findings
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and Recommendations.” Plaintiff is advised that failure to file objections within the specified
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time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153
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(9th Cir. 1991).
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DATED: June 3, 2021
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