Riley v. Roach et al

Filing 59

ORDER DENYING PLAINTIFF'S 36 MOTIONS TO FILE SUPPLEMENTAL PLEADINGS, FOR 46 APPOINTMENT OF COUNSEL, AND FOR 58 LEAVE TO FILE A PETITION FOR A WRIT OF MANDAMUS; GRANTING PLAINTIFF'S 42 MOTION FOR RECONSIDERATION AND DISMISSING CLAIM; GRANTING DEFENDANTS' 37 MOTION FOR SUMMARY JUDGMENT. Signed by Judge Claudia Wilken on 3/31/2012. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 3/31/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SHANNON RILEY,

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United States District Court
For the Northern District of California

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Plaintiff,
v.
CORRECTIONAL OFFICERS S. ROACH
AND E. MORRIS,
Defendants.

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No. C 10-02088 CW (PR)

________________________________/

ORDER DENYING PLAINTIFF'S
MOTIONS TO FILE SUPPLEMENTAL
PLEADINGS, FOR APPOINTMENT OF
COUNSEL, AND FOR LEAVE TO FILE
A PETITION FOR A WRIT OF
MANDAMUS; GRANTING PLAINTIFF'S
MOTION FOR RECONSIDERATION AND
DISMISSING CLAIM; GRANTING
DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT
(Docket nos. 36, 37, 42, 46,
58)

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INTRODUCTION

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Plaintiff Shannon Riley, a prisoner at Salinas Valley State

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Prison (SVSP), filed this pro se civil rights action under

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42 U.S.C. § 1983 against Defendants SVSP Correctional Officers S.

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Roach and E. Morris.

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Plaintiff alleges that Defendants retaliated

against him for filing an inmate grievance and exercising his

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constitutional right of access to the courts.

Defendants move for

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summary judgment.

Plaintiff opposes their motion and Defendants

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have filed a reply.

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motions.

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Additionally, Plaintiff has filed numerous

STATEMENT OF FACTS

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The facts underlying Plaintiff's retaliation claim are taken

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from his two complaints and attached exhibits.1

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complaint, Plaintiff alleged that Roach "continued to retaliate

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In his first

and harass [him] by filing false rule violation reports, refusing

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to release [him] for work and ultimately causing [him] to seek a
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job change [due] to the continuous harassment and retaliation."
First Compl. at 3.

In his second complaint, Plaintiff explains

United States District Court
For the Northern District of California

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that the alleged retaliation occurred because Plaintiff filed an

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inmate grievance in April 2009, against one of Roach's "buddies,"

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namely, SVSP Correctional Officer Vasquez.

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59, Ex. E at 101.

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Sec. Compl., Ex. A at

Plaintiff alleges that in July 2009, Roach retaliated against

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him by "refus[ing] to release [him] for his work assignment" as a
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prison barber.

Sec. Compl., Ex. E at 98.

He alleges that Morris

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would let him out of his cell before his work shift to compile a

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list of inmates needing haircuts or shaves, which he would then

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give to Morris.

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118-119.

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8 and 9, 2009, leaving him unable to compile the list, Pl.'s Decl.

Pl.'s Decl. Re: Roach at 2; Sec. Compl., Ex. F at

He says Roach would not let him out of his cell on July

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Re: Roach at 2, and that Roach did not allow him to "perform his
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1

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Plaintiff filed two different complaints on May 17, 2010.
The first complaint is dated April 13, 2010, and the second
complaint is dated April 25, 2010.
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work assignment" from July 7, 2009 through July 9, 2009.2

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Compl., Ex. E at 100.

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confronted Roach "about his reason for refusing to release [him]

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for his work assignment," and Roach "responded by stating he don't

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Sec.

Plaintiff claims that on July 8, 2009, he

[sic] like I/M paper pushers specifically when I/M's file against

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one of his buddies . . . . C/O Roach was referring to the a [sic]
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complaint [Plaintiff] filed against C/O Vasquez."

Id.

Plaintiff identifies Morris as the staff member "who signs

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United States District Court
For the Northern District of California

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[the] time cards," and claims that Morris "'falsely documented'

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[Plaintiff's] time card as [if he had been] allowed out to perform

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his duties" from July 7, 2009 to July 9, 2009.

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Plaintiff claims that Morris falsified his time card on other

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occasions.

Id. at 99-100.

Specifically, Plaintiff states, "morris [sic] was in

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charge of [Plaintiff's] time cards and there were a number of
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times when [Plaintiff] was not allowed out to work for no apparent

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reason, yet officer morris [sic] would still log in [Plaintiff's]

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time card as if [Plaintiff] did in fact work."

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Morris at 2.

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Pl.'s Decl. Re:

In July 2009, Plaintiff filed an inmate grievance against
Roach for retaliation.

Sec. Compl. at 4; Sec. Compl., Ex. E at

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In the same exhibit, however, Plaintiff states that Roach
did not release him for his work assignment beginning July 6,
2009. Sec. Compl., Ex. E at 98. Plaintiff later clarifies this
statement by stating that July 6, 2009 was the date Roach began
working in the building in which he was housed, not the start date
of Roach's refusal to release him for his work assignment. Pl.'s
Decl. Re: Roach at 2.
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98.

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of review.

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decision dated September 3, 2009, it was determined that

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Plaintiff's appeal was "partially granted" because an inquiry into

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Plaintiff's allegations had been conducted.

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Plaintiff's allegations were investigated at the second level
Sec. Compl., Ex. E at 104.

In the second level

Id.

The details of

the inquiry were not disclosed, but the reviewer concluded: "The

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inquiry is complete.

Staff did not violate CDCR policy."

Id.

At

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United States District Court
For the Northern District of California

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the third level of review the second level findings were upheld.
Id. at 96.
Plaintiff alleges that on August 19, 2009, he "continued to

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experience harassment and retaliation from both officers C/O

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Morris and Roach."

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subsequently attempted to file a grievance against Morris, but it

Sec. Compl. at 5.

Plaintiff alleges that he

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was "returned by the appeals coordinator alleging it to be a
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'duplicate' thereby preventing [him] from exercising his due
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process rights and access to court."

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Id.; Sec. Compl. Ex. J at

129.

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Plaintiff alleges that on December 24, 2009,3 Roach

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"continued to target [him] for harassment and retaliation" by

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filing a false rules violation report (RVR) against him.

Sec.

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Compl. at 7.

Plaintiff was later found guilty of the offense.

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Id. at 8.

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Plaintiff states that Roach filed this rules violation
report on "December 24, 2010." However, the Court assumes he
meant 2009.
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On January 1, 2010, Plaintiff was "successful in securing a

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job change in an effort to remove himself from the continuous

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verbal assaults, arbitrary 'locing [sic] petitioner in his cell'

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and/or 'refusing to release petitioner out for work' . . . ."

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at 7.

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Id.

Plaintiff alleges that on March 5, 2010, Roach filed "another

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false rules violation report" against him.

Id.; Sec. Compl., Ex.

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X at 187.
On May 17, 2010, Plaintiff filed the two complaints in this

United States District Court
For the Northern District of California

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action.

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DISCUSSION
I.

Motion to Supplement Pleadings
Plaintiff has filed a motion to supplement his complaints.4

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Federal Rule of Civil Procedure 15(d) permits “supplemental
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pleadings setting forth transactions or occurrences or events that

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have happened since the date of the pleading sought to be

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supplemented.”

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complete an adjudication of the dispute between the parties as is

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possible.

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1119 (9th Cir. 1986).

The purpose of Rule 15(d) is to promote as

LaSalvia v. United Dairymen of Ariz., 804 F.2d 1113,
“Rule 15(d) is intended to give district

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courts broad discretion in allowing supplemental pleadings.

The

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rule is a tool of judicial economy and convenience.”

Keith v.

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Plaintiff's motion is comprised of two separate motions.
The first was filed on January 6, 2011 and the second was filed on
May 31, 2011.
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Volpe, 858 F.2d 467, 473 (9th Cir. 1988).

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supplemental complaint should have some relation to the claim set

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forth in the original pleading,” and a court may deny leave to

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supplement a complaint on grounds of undue delay, prejudice to the

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opposing party, or futility.

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Id. at 474.

However, “a

A claim is futile if no

set of facts could be proved which would support it, or if the

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claim would be subject to dismissal.

Miller v. Rykoff-Sexton,

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United States District Court
For the Northern District of California

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Inc., 845 F.2d 209, 214 (9th Cir. 1988).
Here, Plaintiff attempts to supplement his complaints by

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adding new allegations, and claims against four new Defendants,

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namely, Correctional Officers Beyer, Greco, Lopez and Black.

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31, 2011 Mot. to Suppl. at 1.

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described by Plaintiff in his motion to supplement are unrelated

May

However, most of the new events

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to the claims and Defendants in his complaints.

For example, in

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his motion, Plaintiff alleges that Beyer and Greco retaliated
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against him by, among other things, failing to process his mail

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and searching and trashing his cell.

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at 2; May 31, 2011 Mot. to Suppl. at 2.

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does not explicitly state, that these retaliatory actions were

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taken because he filed a grievance against Roach.

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Mot. to Suppl. at 1.

Jan. 6, 2011 Mot. to Suppl.
Plaintiff implies, but

Jan. 6, 2011

In addition, Plaintiff alleges in his motion

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that Lopez and Black improperly searched his cell.

May 31, 2011

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Mot. to Suppl. at 3, 6.

These new allegations are not related to

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Plaintiff's retaliation claim against Defendants Roach and Morris.

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The only new allegations that involve one of the original
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Defendants pertain to an allegedly retaliatory cell search

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conducted by Morris.

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Plaintiff concedes that Morris’s actions were not prompted by a

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retaliatory motive and, thus, his proposed new claim of

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retaliation against Morris fails.

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Id. at 3.

But, as will be discussed below,

Because the proposed new retaliation claim against Morris

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would be futile and the other new allegations and Defendants
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described by Plaintiff in his motion to supplement are unrelated

United States District Court
For the Northern District of California

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to the claims and Defendants addressed in his complaints,

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Plaintiff’s motion to supplement his complaints is DENIED.

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II.

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Motion for Reconsideration
Plaintiff moves the Court to reconsider its December 8, 2010

Order dismissing as unexhausted the claims in Plaintiff's second

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complaint against Defendants Medina, Nickerson, Smith and Bocella.
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Plaintiff alleged that Medina, Nickerson and Smith failed to
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process properly his administrative appeals and/or grievances.

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Sec. Compl. at 8.

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In his motion for reconsideration, Plaintiff argues that the

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Court misread his second complaint and that he did allege that he

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had exhausted his administrative remedies against Medina,

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Nickerson and Smith.5

Mot. for Recons. at 2.

Although this is

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not clearly stated in the complaint, it appears that Plaintiff is
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Plaintiff does not deny that he had not exhausted his
administrative remedies against Defendant Bocella when he filed
his second complaint. Thus, the Court’s dismissal of the claim
against Bocella will not be reconsidered.
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correct.

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reconsideration of the dismissal of his claim against Medina,

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Nickerson and Smith is GRANTED.

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explained below, this claim is DISMISSED without leave to amend.

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A federal court must conduct a preliminary screening in any

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Sec. Compl. at 1, 12.

Thus, Plaintiff's motion for

However, for the reasons

case in which a prisoner seeks redress from a governmental entity

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or officer or employee of a governmental entity.

See 28 U.S.C.

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§ 1915A(a).

In its review, the court must identify cognizable

United States District Court
For the Northern District of California

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claims and dismiss any claims that are frivolous, malicious, fail

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to state a claim upon which relief may be granted or seek monetary

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relief from a defendant who is immune from such relief.

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§ 1915A (b)(1),(2).

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construed.

See id.

Pro se pleadings must, however, be liberally

See Balistreri v. Pacifica Police Dep't, 901 F.2d 696,

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699 (9th Cir. 1988).
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Here, Plaintiff alleges Medina, Nickerson and Smith failed to
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process properly his administrative appeals and/or grievances.

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Sec. Compl. at 8.

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relief.

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administrative appeal or grievance system; consequently, a prison

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official’s failure to process grievances is not actionable under

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§ 1983.

Such allegations fail to state a claim for

There is no constitutional right to a prison

See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003)

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(holding prisoner’s claimed loss of liberty interest in processing
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of administrative appeals does not violate due process because

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prisoners lack separate constitutional entitlement to specific

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prison grievance system).

Further, while a prisoner retains a
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First Amendment right to petition the government for redress of

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grievances as to the constitutional claim underlying an

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administrative grievance, he possesses no constitutional right to

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a response to his grievance from prison officials.

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Alba, 932 F.2d 728, 729 (8th Cir. 1991) (holding prisoner’s First

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See Flick v.

Amendment right of access to courts is not compromised by prison’s

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Because Plaintiff has not

refusal to entertain grievance).

alleged facts that state a cognizable claim for relief under

United States District Court
For the Northern District of California

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§ 1983, his claim against Medina, Nickerson and Smith is DISMISSED

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without leave to amend.

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III. Motion to Appoint Counsel

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Plaintiff has filed a renewed motion for the appointment of
counsel.

The Court may appoint counsel under § 1915(e)(1) only

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under "exceptional circumstances."

28 U.S.C. § 1915(e)(2).

The

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Court must evaluate both: (1) the likelihood of success on the

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merits, and (2) the ability of the prisoner to articulate his

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claims pro se in light of the complexity of the legal issues

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involved.

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likelihood of success on the merits of his claims.

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the legal issues addressed in the motion for summary judgment are

As will be explained below, Plaintiff has not shown a
Furthermore,

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neither novel nor especially intricate.

In fact, Plaintiff has

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demonstrated his ability to brief issues adequately in his

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opposition to the motion for summary judgment and his other

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filings in this case.

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motion for court-appointed counsel.

On this basis, the Court DENIES Plaintiff's

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IV.

Motion for Summary Judgment

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A.

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Summary judgment is properly granted when no genuine and

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disputed issues of material fact remain and when, viewing the

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evidence most favorably to the non-moving party, the movant is

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Legal Standard

clearly entitled to prevail as a matter of law.

Fed. R. Civ. P.

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56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
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United States District Court
For the Northern District of California

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Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir.
1987).
The moving party bears the burden of showing that there is no

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material factual dispute.

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true the opposing party's evidence, if supported by affidavits or

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other evidentiary material.

Therefore, the Court must regard as

Celotex, 477 U.S. at 324; Eisenberg,

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815 F.2d at 1289.

The Court must draw all reasonable inferences

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in favor of the party against whom summary judgment is sought.
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Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

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587 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952

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F.2d 1551, 1558 (9th Cir. 1991).

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Material facts which would preclude entry of summary judgment
are those which, under applicable substantive law, may affect the
outcome of the case.

The substantive law will identify which

facts are material.

Anderson v. Liberty Lobby, Inc., 477 U.S.

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242, 248 (1986).

Where the moving party does not bear the burden

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of proof on an issue at trial, the moving party may discharge its

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burden of showing that no genuine issue of material fact remains
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by demonstrating that "there is an absence of evidence to support

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the nonmoving party's case."

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burden then shifts to the opposing party to produce "specific

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evidence, through affidavits or admissible discovery material, to

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show that the dispute exists."

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1404, 1409 (9th Cir. 1991).

Celotex, 477 U.S. at 325.

The

Bhan v. NME Hosps., Inc., 929 F.2d

A complete failure of proof

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concerning an essential element of the non-moving party's case
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necessarily renders all other facts immaterial.

Celotex, 477 U.S.

United States District Court
For the Northern District of California

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at 323.

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B.

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Prisoners have a First Amendment right to pursue civil rights

Analysis

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litigation in the courts.

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(9th Cir. 2005).

Rhodes v. Robinson, 408 F.3d 559, 567

Prisoners may not be retaliated against for

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exercising their right of access to the courts, and this extends
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to established prison grievance procedures.

Bradley v. Hall, 64

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F.3d 1276, 1279 (9th Cir. 1995), abrogated on other grounds by

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Shaw v. Murphy, 532 U.S. 223 (2001).

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A viable claim of First Amendment retaliation within the

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prison context entails five basic elements: “(1) An assertion that

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a state actor took some adverse action against an inmate

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(2) because of (3) that prisoner’s protected conduct, and that

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such action (4) chilled the inmate’s exercise of his First
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Amendment rights, and (5) the action did not reasonably advance a

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legitimate correctional goal.”

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Rhodes, 408 F.3d at 567-68

(footnote omitted).
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Retaliatory motive may be shown by the timing of the

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allegedly retaliatory act and inconsistency with previous actions,

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as well as direct evidence.

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(9th Cir. 2003).

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between a defendant’s retaliatory animus and a subsequent injury.

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Bruce v. Ylst, 351 F.3d 1283, 1288-89

A plaintiff must show a causal connection

Hartman v. Moore, 547 U.S. 250, 259 (2006).

The requisite

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causation must be but-for causation, i.e., without the prohibited
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animus, the adverse action would not have been taken.

Id. at 260.

United States District Court
For the Northern District of California

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Upon a prima facie showing of retaliatory harm, the burden shifts

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to the defendant official to demonstrate that even without the

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impetus to retaliate he would have taken the action complained of.

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Id.

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cause of the action of which the plaintiff complains, the claim

If there is a finding that retaliation was not a but-for

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fails for lack of causal connection between unconstitutional
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motive and resulting harm, despite proof of retaliatory animus in
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the official’s mind.

Id.

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The prisoner bears the burden of pleading and proving the

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absence of a legitimate correctional goal for the conduct of which

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he complains.

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1995).

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See Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir.

Courts considering retaliation claims brought by prisoners

must keep in mind the potential for “excessive judicial

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involvement in day-to-day prison management, which ‘often
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squander[s] judicial resources with little offsetting benefit to

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anyone.’”

Pratt, 65 F.3d at 807 (quoting Sandin v. Conner, 515

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U.S. 472, 482 (1995)).

In particular, courts should “‘afford
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appropriate deference and flexibility’ to prison officials in the

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evaluation of proffered legitimate penological reasons for conduct

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alleged to be retaliatory.”

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482).

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Id. (quoting Sandin, 515 U.S. at

1. Roach

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a. Refusal to Release for Work Assignment

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Plaintiff alleges that Roach retaliated against him by
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refusing to release him for his work assignment from July 7, 2009

United States District Court
For the Northern District of California

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to July 9, 2009.

Sec. Compl., Ex. E at 100.

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Plaintiff's claim

fails for two reasons.

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First, Plaintiff has not created a triable issue of material

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fact as to whether Roach took this action because Plaintiff filed

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a grievance against Vasquez.

In his opposition to the motion for

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summary judgment, Plaintiff explicitly asserts for the first time
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that on July 8, 2009, Roach told Plaintiff that he was not
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releasing him for his work assignment because Plaintiff filed a

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grievance against Vasquez.

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argues that his action could not have been retaliatory because he

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did not start working in the building in which Plaintiff was

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housed until July 6, 2009, and prior to this date did not know

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Opp'n at 8.

about Plaintiff or his grievance.6

Roach denies this and

Roach Decl. ¶ 5.

Thus, there

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26
6

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Roach has presented undisputed evidence that he was not
working at the prison on July 7, 2009. Thus, the only dates at
issue are July 8, 2009 and July 9, 2009. Roach Decl. ¶¶ 6-9.
13

1

is a dispute as to whether Roach harbored a retaliatory animus

2

when he acted.

3

However, even assuming that Roach did have a retaliatory

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motive, Plaintiff fails to demonstrate that Roach’s retaliatory

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animus was the but-for cause of Roach’s action.

6

Although Roach

testifies in his declaration that he does not recall whether he

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released Plaintiff for work on July 8 and 9, he declares that he
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has refused to release Plaintiff for his work assignment only to

United States District Court
For the Northern District of California

10

advance legitimate correctional goals.

11

states:

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Id.

Specifically, Roach

I have only ever decided not to release [Plaintiff] for work
to: (1) discipline [Plaintiff] for violating direct orders,
regulations, or operational procedures; (2) to improve safety
and security by keeping [Plaintiff] in his cell when
[Plaintiff] had no haircuts or other barber-related work to
perform; or (3) to maintain safety and security when events
occurred at Salinas Valley State Prison that made it
impossible to safely release [Plaintiff] for his work
assignment.

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Id.
In support of his assertion, Roach points out that he had

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only been assigned to that building for two days when Plaintiff

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claims he refused to release Plaintiff for work.

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He states that prison policy does not provide that inmates who

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Id. at ¶¶ 6-9.

work as barbers be released from their cells to compile a list of

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inmates wanting a haircut; rather, it is the Housing Unit
25
26

Officer’s responsibility to compile the list.

Id.; Morris Decl.,

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Ex. B at 5.

Plaintiff has failed to present evidence that Roach,

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on his first two days assigned to the building, was aware that
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1

Morris had implemented a different practice of letting Plaintiff

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out of his cell to compile the list.

3

Roach reasonably could have concluded that he would receive a list

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of inmates needing haircuts from the Housing Unit Officer, and

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Plaintiff would only be released if inmates needed haircuts.

6

Opp'n at 6.

Accordingly,

Plaintiff agrees that no such list was compiled on July 8 and 9,

7
2009.

Pl.'s Decl. Re: Roach at 2.

8
9

It is Plaintiff's burden to provide evidence of the absence

United States District Court
For the Northern District of California

10

of a legitimate correctional goal for the conduct of which he

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complains.

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Roach's actions were "not taken to achieve a legitimate

13

penological goal," Opp'n at 15, Plaintiff offers no evidence that

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Roach's refusal to release him for his work assignment did not

Pratt, 65 F.3d at 806.

Aside from stating that

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advance legitimate correctional goals such as those proffered by
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Roach.

Plaintiff fails to meet his burden.

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Roach is entitled to summary adjudication of Plaintiff’s
retaliation claim to the extent it is based on this ground.
b. The RVRs
Plaintiff alleges that Roach retaliated against him by
issuing him two false RVRs--the first on December 24, 2009 and the
second on March 5, 2010.

This claim fails for two reasons.

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First, Plaintiff has not created a triable issue of material
25
26

fact as to whether Roach issued these RVRs because Plaintiff filed

27

a grievance against Vasquez.

Plaintiff fails to provide evidence

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showing a nexus between his grievance against Vasquez and Roach’s
15

1

issuance of the RVRs.

2

filed the grievance against Vasquez in April 2009.

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the first RVR in December 2009, eight months after Plaintiff filed

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the grievance, and the second RVR in March 2010, eleven months

5

after the grievance was filed.

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Temporal proximity is lacking.

Plaintiff

Roach issued

Plaintiff fails to present

evidence that Roach harbored a retaliatory animus when he issued

7
these RVRs.

However, even assuming that Roach's motivation when

8
9

issuing the RVRs was retaliatory, Plaintiff fails to demonstrate

United States District Court
For the Northern District of California

10

that Roach’s retaliatory animus was the but-for cause of Roach’s

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issuance of the RVRs.

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The December 24, 2009 RVR was for violating a direct order.

13

Roach states, “I observed [Plaintiff] passing an item to another

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inmate's cell.

In the past, I had repeatedly advised [Plaintiff]

15
that he was prohibited from wandering around Facility D during his
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assigned work hours to pass items to other inmates, and had
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ordered [Plaintiff] to cease that behavior.”

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Plaintiff does not deny this, but explains his action by stating:

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“[I] was assisting [my] neighbor retreive [sic] 3 poloroid photo’s

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[sic] that were sitting in front of his cell.”

22

Roach at 3.

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order.

Roach Decl. ¶ 15.

Pl.'s Decl. Re:

The March 5, 2010 RVR was also for violating a direct

Roach states, “Instead of reporting directly to his work

24
assignment, [Plaintiff] visited the upper tier of the building.”
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26

Roach Decl. ¶ 16.

Roach asserts that he “had previously advised

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[Plaintiff] that it was a violation of prison rules and

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regulations for him to wander about the facility before reporting
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1

to his work assignment, and had ordered [Plaintiff] to cease that

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behavior.”

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"complete and total fabrication," Pl.'s Decl. Re: Roach at 4,

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Plaintiff offers no facts to the contrary, and his conclusory

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statement is insufficient to create a triable issue of material

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fact.

Id.

Aside from stating that Roach's assertions are a

Plaintiff fails to present evidence that Roach’s

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retaliatory animus was the but-for cause of his issuance of the
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United States District Court
For the Northern District of California

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RVRs.
Second, Plaintiff’s claim fails because he has not created a

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triable issue of material fact that Roach's issuance of these RVRs

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did not reasonably advance legitimate correctional goals.

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has provided sufficient evidence to show that his issuance of the

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RVRs advanced legitimate correctional goals.

Roach

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Because Plaintiff fails to create triable issues of material
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fact regarding whether Roach issued the RVRs because Plaintiff
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filed a grievance and whether Roach’s actions reasonably advanced

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legitimate correctional goals, Roach is entitled to summary

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adjudication of Plaintiff's retaliation claim to the extent it is

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based on this ground.

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2. Morris
Plaintiff alleges that Morris retaliated against him by

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falsifying his time card to indicate that he had been released for
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his work assignment when that was not the case.
E at 99-100.

Sec. Compl., Ex.

Plaintiff’s claim fails for two reasons.

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First, Plaintiff’s claim fails because Morris’s action was

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not adverse to Plaintiff.

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that Morris refused to release Plaintiff for his work assignment,

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but rather that Morris credited Plaintiff for hours he had not

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worked.

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Plaintiff’s claim against Morris is not

Plaintiff has not alleged that he suffered any harm as a

result of Morris’s alleged retaliatory action.

In fact, Plaintiff

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received pay and work credits for these hours.
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Second, Plaintiff's claim fails because he has not created a

United States District Court
For the Northern District of California

10

triable issue of material fact as to whether Morris's alleged

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action was taken because Plaintiff engaged in protected conduct.

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In its December 8, 2010 Order, in which it found Plaintiff's

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retaliation claim cognizable, the Court construed Plaintiff's

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second complaint as alleging that the retaliation by Morris

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occurred because Plaintiff filed a grievance against Vasquez.
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Dec. 8, 2010 Order at 5-6.

That is the claim to which Defendants

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have responded.

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for summary judgment, Plaintiff now states that Morris's

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retaliation was not motivated by the grievance against Vasquez.

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Rather, Plaintiff appears to argue that Morris joined in Roach's

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retaliatory actions for unspecified reasons.

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However, in his opposition to Defendants’ motion

Plaintiff states:

[P]etitioner does not claim officer morris retaliated against
petitioner due to a grievance petitioner filed against C/o
Vasquez. Petitioner alleges that officer Roach in fact did
this. Officer morris however seemed to just jump on board
with officer Roach. However, it can be inferred that officer
morris's assistance to officer roach could be construed as
retaliation to petitioner's grievance against C/o Vasquez.
Pl.'s Decl. Re: Morris at 1.
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To the extent that Plaintiff's claim of retaliation against

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Morris is simply that Morris decided to join in Roach's

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retaliatory action, the claim fails.

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evidence demonstrating that Morris's action was taken because

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Plaintiff engaged in protected conduct.

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Plaintiff has not provided

Paradoxically, Plaintiff

asks the Court to infer that Morris's alleged action was

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retaliatory, even as he concedes that he does not believe this
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action was prompted by a retaliatory motive.
Accordingly, Morris is entitled to summary judgment on

United States District Court
For the Northern District of California

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Plaintiff's retaliation claim.

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V.

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Qualified Immunity
Defendants argue that they are entitled to qualified

immunity.

The defense of qualified immunity protects "government

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officials . . . from liability for civil damages insofar as their
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conduct does not violate clearly established statutory or
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constitutional rights of which a reasonable person would have

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known."

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threshold question in qualified immunity analysis is: "Taken in

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the light most favorable to the party asserting the injury, do the

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facts alleged show the officer's conduct violated a constitutional

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right?"

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

Saucier v. Katz, 533 U.S. 194, 201 (2001).

The

The relevant,

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dispositive inquiry in determining whether a right is clearly
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established is whether it would be clear to a reasonable officer

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that his conduct was unlawful in the situation he confronted.

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at 202.
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Id.

1

On the facts presented herein, viewed in the light most

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favorable to Plaintiff, Defendants prevail as a matter of law on

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their qualified immunity defense because the record establishes no

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constitutional violation.

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occur, however, Defendants could have reasonably believed their

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conduct was lawful.

Even if a constitutional violation did

Specifically, even if Roach harbored a

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retaliatory animus against Plaintiff, it would not have been clear
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to a reasonable officer in Roach's position that his refusal to

United States District Court
For the Northern District of California

10

release Plaintiff from his cell to go to work on July 8 and 9,

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2009, was unconstitutional given that it conformed to prison

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policy.

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inmate barbers if he was given a list by another officer of

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inmates needing haircuts.

Roach understood the policy to be that he would release

Plaintiff has stated that no such list

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was compiled on those dates because he was not let out of his
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cell.

Pl.'s Decl. Re: Roach at 2.

Further, it would not have

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been clear to a reasonable officer in Roach's position that

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issuing the December 2009 and March 2010 RVRs against Plaintiff

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was unconstitutional, where Plaintiff's actions on those dates

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were in violation of prison procedures.

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have been clear to a reasonable official in Morris's position that

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Finally, it would not

his decision to "join in" Roach's strict, but lawful, enforcement

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of prison procedures was unconstitutional.
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Accordingly, Defendants are entitled to qualified immunity

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with respect to all of Plaintiff's claims, and their motion for

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summary judgment is GRANTED for this reason as well.
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1

VI.

Motion for Leave to File a Writ of Mandamus
Plaintiff has filed a motion for leave to file a writ of

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3

mandamus to compel the Court to rule on his pending motions.

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Because Plaintiff's pending motions have now been decided, the

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Court DENIES the motion as moot.

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CONCLUSION

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For the foregoing reasons, the Court orders as follows:
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1. Plaintiff's motion to supplement his pleadings is DENIED.

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United States District Court
For the Northern District of California

10

(Docket No. 36).
2. Plaintiff's motion for reconsideration is GRANTED.

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(Docket No. 42).

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3. Plaintiff's claim against Defendants Medina, Nickerson and
Smith is DISMISSED without leave to amend.

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4. Plaintiff's motion for appointment of counsel is DENIED.
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(Docket No. 46).
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5. Defendants' motion for summary judgment is GRANTED.

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(Docket No. 37).

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//

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//

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//

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//

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//
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//

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//

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//
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6. Plaintiff's motion for leave to file a writ of mandamus is

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2

DENIED.

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(Docket No. 58).

The Clerk of the Court shall enter judgment and close the
file.
This Order terminates Docket numbers 36, 37, 42, 46 and 58.
IT IS SO ORDERED.

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United States District Court
For the Northern District of California

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Dated: 03/31/12
CLAUDIA WILKEN
United States District Judge

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