# (PC) Peets v. Brown > District Court, E.D. California · March 24, 2021 URL: https://www.frixlaw.com/law-library/cases/10026176 ## Case - **Court:** District Court, E.D. California - **Decided:** March 24, 2021 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10026176 ## How later opinions describe it (automated extraction) - holding that there is 6 no respondeat superior liability under § 1983 - holding that there is no liberty interest entitling 25 inmates to a specific grievance process - concluding that prisoner failed to state due process claim based on false charges because 23 the punishment imposed was not an atypical hardship under Sandin v. Conner, 515 U.S. 472, 484 24 (1995) ## Opinion text 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LOUIS PEETS, No. 2:18-CV-2469-KJM-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 SCOTT KERNAN, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the Court is Defendants’ motion to dismiss, ECF No. 32. 19 20 I. PLAINTIFF’S ALLEGATIONS 21 This action proceeds on Plaintiff’s second amended complaint against the 22 following 14 defendants: (1) Scott Kernan, the Secretary of the California Department of 23 Corrections and Rehabilitation (CDCR); (2) Kathleen Allison, the Director of CDCR’s Adult 24 Institutions; (3) Robert W. Fox, the Warden of the California Medical Facility (CMF); (4) 25 Richard Townsend, Correctional Officer at CMF; (5) David Maldonado, Community Resources 26 Manager at CMF; (6) Thomas Huntley, Custody Captain at CMF; (7) James Appleberry, Custody 27 Captain at CMF; (8) Christopher Tileston, Associate Warden and Chief Disciplinary Officer at 28 CMF; (9) Daniel Cueva, Chief Deputy Warden at CMF; (10) J. Dominguez, Appeals Examiner at 1 CDCR headquarters; (11) M. Voong, Chief of Inmate Appeals at CDCR headquarters; (12) David 2 Haley, Correctional Counselor II at CMF; (13) Maylene Boucher, Unit IV Captain at CMF; and 3 (14) Pal Shleffar, Head Rabbi at CDCR headquarters. See ECF No. 12, pgs. 1-4. Plaintiff 4 specifically alleges that Defendants Kernan, Allison, and Fox are sued in their individual and 5 official capacities. See id. at 3. Plaintiff states that the remaining defendants are sued in their 6 individual capacities. See id. at 4. 7 Plaintiff alleges the following five claims: 8 Claim I – First Amendment Right to Free Speech – Retaliation 9 Plaintiff claims Defendant Townsend violated his First Amendment right to free 10 speech by repeatedly punishing Plaintiff, a practicing Jew, for observing the Sabbath as retaliation 11 for criticizing the library work schedule to the warden. See id. at 5-15. 12 Though Claim I – and indeed all of Plaintiff’s claims – centers around alleged 13 conduct by Defendant Townsend, in Claim I Plaintiff alleges various supervisory defendants are 14 also liable.1 According to Plaintiff, Defendant Fox is liable because he was empowered to stop 15 the misconduct but did not. See id. at 7. Plaintiff states: “Defendant Fox is thus supervisory 16 liable. . . .” Id. at 5. Plaintiff states Defendant Shleffar, the CDCR’s “head rabbi,” was aware of 17 the problem and failed to bring it to the attention of the CDCR’s Statewide Religious Review 18 Committee (SRRC). See id. at 7. Plaintiff alleges Defendant Cueva, a deputy warden, is liable 19 for failure to properly train and supervise Defendant Townsend. See id. at 9. Plaintiff states that 20 Defendant Maldonado, the “contact person” for the “Religious Review Committee (RRC),” is 21 liable for failing to correct the situation. Id. According to Plaintiff, Defendant Huntley, a custody 22 captain, is liable for failure to train and supervise. See id. at 10. Plaintiff also states Defendant 23 Huntley is liable for failing to intercede. See id. Plaintiff contends Defendants Boucher and 24 Haley, as members of the “UCC” which removed Plaintiff from his job as a library clerk, are 25 liable. See id. at 13. Plaintiff claims that Defendant Kernan, the Director of the CDCR, and 26 Defendant Allison, the CDCR’s Director of Adult Institutions, are liable for failing to safeguard 27 1 In each of his other claims, Plaintiff incorporates by reference the paragraphs 28 outlining the allegations of Claim I. 1 Plaintiff’s constitutional rights. See id. at 13-14. 2 Finally, Plaintiff alleges in Claim I that various defendants are liable for conduct 3 relating to a rules violation report. Plaintiff states that Defendant Appelberry, as the disciplinary 4 hearing officer, was required to uphold Plaintiff’s constitutional rights and that he failed to do so 5 by finding him guilty of a rules violation. See id. at 12. Plaintiff asserts that Defendant Tileston, 6 CMF’s Chief Disciplinary Officer, had authority to reverse Defendant Appleberry’s decision but 7 failed to do so, in violation of due process. See id. Defendants Dominguez and Voong are 8 alleged to be liable as the Appeals Examiner and Chief of Inmate Appeals, respectively. See id. 9 at 12-13. 10 Claim II – First Amendment Right to Free Exercise of Religion 11 Plaintiff claims Defendant Townsend violated his First Amendment right to free 12 exercise of religion by ordering him to work on Saturdays, the Jewish Sabbath, after a year and a 13 half of accommodating his observance of the Sabbath. See id. at 16. Plaintiff adds: “[T]he acts 14 and omissions of the other named defendants render[] them supervisory liable before and/or after 15 the fact.” Id. 16 Claim III – RLUIPA 17 Plaintiff claims the actions of Defendant Townsend violated the Religious Land 18 Use and Institutionalized Persons Act (RLUIPA) by imposing “substantial burdens” on Plaintiff’s 19 religious exercise without a compelling governmental interest. See id. at 17. As with Claim II, 20 Plaintiff adds: “[T]he acts and omissions of the other named defendants render[] them supervisory 21 liable before and/or after the fact.” Id. 22 Claim IV – Equal Protection Clause of the Fourteenth Amendment 23 Plaintiff claims that Defendant Townsend violated his Fourteenth Amendment 24 right to equal protection because CMF allows Catholic and Muslim inmates, but not Jewish 25 inmates, to observe their Sabbaths without punishment. See id. at 18. Again, Plaintiff alleges 26 that the “other named defendants” are “supervisory liable.” Id. 27 / / / 28 / / / 1 Claim V – Due Process Clause of the Fourteenth Amendment 2 Plaintiff claims Defendant Appleberry violated his Fourteenth Amendment right to 3 due process because he denied Plaintiff’s appeal of the rules violation report even though the 4 charges against him were supported by no evidence. See id. at 19. Specifically, Plaintiff claims: 5 “Defendant Appleberry acknowledged that Plaintiff’s Saturday work absences were for ‘religious 6 reasons,’ but he nonetheless found Plaintiff guilty as charged, thereby supporting that conclusion 7 with no evidence and therefore violated Plaintiff’s due process rights. . . .” Id. Plaintiff adds: 8 “Reviewers/defendants Tileston, Fox, Cueva, Dominguez, and Voong all upheld the guilty 115 9 finding, even though it was supported by no evidence. . . .” Id. 10 11 II. STANDARDS FOR MOTION TO DISMISS 12 In considering a motion to dismiss, the court must accept all allegations of material 13 fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The court must 14 also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 15 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 16 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or 17 doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 18 421 (1969). However, legally conclusory statements, not supported by actual factual allegations, 19 need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). In addition, pro se 20 pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v. 21 Kerner, 404 U.S. 519, 520 (1972). 22 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement 23 of the claim showing that the pleader is entitled to relief” in order to “give the defendant fair 24 notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp v. Twombly, 25 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order 26 to survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must contain 27 more than “a formulaic recitation of the elements of a cause of action;” it must contain factual 28 allegations sufficient “to raise a right to relief above the speculative level.” Id. at 555-56. The 1 complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 2 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the 3 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 4 Iqbal, 129 S. Ct. at 1949. “The plausibility standard is not akin to a ‘probability requirement,’ but 5 it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting 6 Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a 7 defendant’s liability, it ‘stops short of the line between possibility and plausibility for entitlement 8 to relief.” Id. (quoting Twombly, 550 U.S. at 557). 9 In deciding a Rule 12(b)(6) motion, the court generally may not consider materials 10 outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); 11 Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1) 12 documents whose contents are alleged in or attached to the complaint and whose authenticity no 13 party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question, 14 and upon which the complaint necessarily relies, but which are not attached to the complaint, see 15 Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials 16 of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 17 1994). 18 Finally, leave to amend must be granted “[u]nless it is absolutely clear that no 19 amendment can cure the defects.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per 20 curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc). 21 22 III. DISCUSSION 23 Defendants argue in general that Plaintiff has failed to plead sufficient facts to 24 state claims against any of them. ECF No. 32-1, pgs. 1-2. Specifically, Defendants raise the 25 following five arguments: 26 1. Plaintiff fails to state a cognizable retaliation claim because the actions taken against him were in response to his failure to perform his 27 job and they advanced a legitimate correctional interest in reducing workloads and wait times. Id. at 7-8. 28 1 2. Plaintiff fails to state a cognizable free exercise claim2 because he was offered another job where he would not be required to 2 work on Saturdays and there were no “easy alternatives” to resolve the issues caused by Plaintiff’s refusal to work his assigned shifts. Id. at 6-7. 3 3. Plaintiff fails to state a cognizable equal protection claim 4 because he has not pled any facts indicating an intent or purpose to discriminate against Jewish inmates. Id. at 8-10 5 4. Plaintiff fails to state a cognizable due process claim 6 because he does not have a protected liberty interest in the grievance process at CMF. Id. at 10-11. 7 5. All claims for damages against defendants who are sued in 8 their official capacities are barred by the Eleventh Amendment. Id. at 11. 9 Defendants do not address Plaintiff’s RLUIPA claim. 10 A. Retaliation 11 In Claim I, Plaintiff alleges that Defendant Townsend retaliated against Plaintiff 12 for criticizing the library work schedule to the warden. See ECF No. 12, pgs. 5-15. Defendants 13 argue that Plaintiff has failed to plead two necessary elements of his retaliation claim: (1) that 14 Plaintiff’s protected conduct was the cause of the adverse action; and (2) that the adverse action 15 did not serve a legitimate penological purpose. ECF No. 32-1, pg. 7. 16 For the reasons discussed below, the Court does not agree and finds that Plaintiff 17 has sufficiently pleaded all four elements of a retaliation claim against Defendant Townsend. 18 Plaintiff’s retaliation allegations against the other defendants named in Claim I, however, are 19 insufficient to establish their liability for their roles as supervisory personnel or member of 20 committees or departments tasked with reviewing rules violations, appeals, and/or grievances. 21 1. Defendant Townsend 22 In order to state a claim under 42 U.S.C. § 1983 for retaliation, the prisoner must 23 establish that he was retaliated against for exercising a constitutional right, and that the retaliatory 24 action was not related to a legitimate penological purpose, such as preserving institutional 25 security. See Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam). In meeting 26 2 In this section of Defendants’ brief, Defendants cite Plaintiff’s allegations in Claim I, which is a First Amendment retaliation claim. See ECF No. 32-1, pgs. 6-7. The section does 27 not, however, discuss the law relating to retaliation in the context of these allegations. Instead, Defendants discuss the factors relevant to a violation of the Free Exercise Clause of the 28 Fourteenth Amendment, which is alleged in Claim II. 1 this standard, the prisoner must demonstrate a specific link between the alleged retaliation and the 2 exercise of a constitutional right. See Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995); 3 Valandingham v. Bojorquez, 866 F.2d 1135, 1138-39 (9th Cir. 1989). The prisoner must also 4 show that the exercise of First Amendment rights was chilled, though not necessarily silenced, by 5 the alleged retaliatory conduct. See Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000), see also 6 Rhodes v. Robinson, 408 F.3d 559, 569 (9th Cir. 2005). Thus, the prisoner plaintiff must 7 establish the following in order to state a claim for retaliation: (1) prison officials took adverse 8 action against the inmate; (2) the adverse action was taken because the inmate engaged in 9 protected conduct; (3) the adverse action chilled the inmate’s First Amendment rights; and (4) the 10 adverse action did not serve a legitimate penological purpose. See Rhodes, 408 F.3d at 568. 11 a. Whether Defendant Townsend Took Adverse Action Against Plaintiff 12 13 Throughout Claim I, Plaintiff alleges a litany of adverse actions taken against him 14 by Defendant Townsend. According to Plaintiff, on August 23, 2016, Defendant Townsend 15 issued Plaintiff his first rule violation report (a “115”). ECF No. 12, pg. 7. On September 1, 16 2016, Defendant Townsend refused to open the library door, preventing Plaintiff from beginning 17 his work. Id. at 8. Plaintiff further contends that, on September 10, 2016, Defendant Townsend 18 issued Plaintiff his second write-up, a “Counseling Only Rules Violation Report.” Id. at 9. On 19 October 11, 2016, Plaintiff worked an extra day for an inmate worker who could not work that 20 day and Defendant Townsend refused to pay Plaintiff for the hours he worked. Id. On September 21 17, 2016, Defendant Townsend allegedly issued Plaintiff his third write-up, an administrative 22 115. See id. On December 3, 2016, Defendant Townsend allegedly issued Plaintiff his fourth 23 write-up, a serious 115. See id. at 10. These write-ups led to Plaintiff receiving a disciplinary 24 hearing and removal from his position in the library. See id. at 12. 25 / / / 26 / / / 27 / / / 28 / / / 1 b. Whether the Adverse Action was Taken Because the Inmate Engaged in Protected Conduct 2 3 The crux of Plaintiff’s first claim is that he experienced retaliatory conduct 4 because he requested a religious accommodation. To state a retaliation claim, Plaintiff must 5 allege that the retaliatory conduct outlined above occurred because Plaintiff requested an 6 accommodation. 7 According to Plaintiff, he began working as a clerk in the library on January 10, 8 2015. See id. at 6. Plaintiff was assigned Fridays and Saturdays as Regular Days Off (RDO) to 9 accommodate his religious observance of the Jewish Sabbath. See id. Plaintiff alleges that 10 Defendant Townsend was assigned as the library supervisor on May 11, 2016. See id. In June 11 2016, the prison warden, decided to cut clerk positions from the library to make more efficient 12 use of resources. See id. at 15. On July 9, 2016, Plaintiff received his new work schedule, 13 indicating he would not have Saturdays off. Id. at 6. 14 On July 10, 2016, Plaintiff told Defendant Townsend that he would not be able to 15 work on Saturdays because of a religious conflict. See id. Defendant Townsend allegedly told 16 Plaintiff that “that the Sabbath issue would not be a problem, as he would simply issue Plaintiff 17 ETO [Excused Time Off] for his mandated Saturday absences.” Id. Nonetheless, on August 19, 18 2016, Plaintiff complained to Defendant Townsend’s supervisor about the new schedule that 19 Defendant Townsend created. Id. According to Plaintiff, the very next day Defendant Townsend 20 threatened Plaintiff with “progressive discipline” if he did not report to work on Saturdays. Id. 21 The Court finds that Plaintiff has alleged that he engaged in protected conduct, 22 specifically voicing his concerns about his work schedule and religious needs. It is also clear 23 Plaintiff has alleged, as outlined above, numerous instances of adverse action taken against him. 24 These adverse actions allegedly occurred between August 23, 2016, and December 16, 2016 – 25 after Plaintiff complained on August 19, 2016, about the work schedule imposed by Defendant 26 Townsend. Plaintiff also alleges that, after complaining about the work schedule, Defendant 27 Townsend threatened “progressive discipline” if Plaintiff did not report to work on Saturdays as 28 scheduled (and apparently despite Defendant Townsend’s alleged promise of ETO). Finally, the 1 second amended complaint alleges that, following this threat, Defendant Townsend issued 2 Plaintiff a string of disciplinary write-ups ultimately concluding in Plaintiff’s removal from his 3 position as a library clerk. 4 The Court concludes that Plaintiff’s allegations are sufficient to show, if true, that 5 Defendant Townsend carried through with this threat and took adverse action against Plaintiff 6 because Plaintiff engaged in protected conduct. 7 c. Whether the Adverse Action Chilled Plaintiff’s First Amendment Rights 8 9 At paragraphs 88 and 89 of the second amended complaint, Plaintiff alleges: 10 88. The Chilling Effect: Defendant Townsend’s actions chilled Plaintiff’s exercise of his First Amendment rights in that Plaintiff was thereafter 11 apprehensive about complaining against staff. . . . 12 89. Plaintiff also became fearful that his cell would be ransacked and/or that he would be transferred to another prison and/or that he would be 13 otherwise harassed. . . . 14 ECF No. 12, pg. 8 (bold in original). 15 These allegations satisfy the chilling element 16 d. Whether the Adverse Action Served a Legitimate Penological Purpose 17 18 According to Defendants: 19 As addressed above, the institution took action because of a legitimate correctional interest, maintaining an accessible law-library. 20 Plaintiff’s continued absence from his law-library assignment only prejudiced the institution and other inmates. Thus, the more plausible 21 conclusion from the pleadings is that the institution acted responsibly to ensure an accessible law library at CMF. 22 ECF No. 32-1, pg. 8. 23 24 This argument is unpersuasive. In particular, Plaintiff seems to anticipate 25 Defendants’ argument and alleges that “[t]here would exist valid, rational connections between 26 them [reducing workloads and wait times] and the write-ups, but only if defendant Townsend was 27 being truthful about his motives for the write-ups in the first place; and [u]pon information and 28 belief, defendant Townsend was less than truthful about said motives.” ECF No. 12, pg. 14. 1 According to Plaintiff, though Defendant Townsend cited increased workload and inmate wait 2 times as the negative consequences of Plaintiff’s absence from work in all four write-ups he 3 issued to Plaintiff, Defendant Townsend failed to fill the vacant Saturday work slot. Id. at 8. It is 4 reasonable to infer from these allegations that, had Defendant Townsend been sincere in his 5 desire to ensure each inmate who used the library was helped in a reasonable time and the library 6 inmates helping them were not overworked, he would have filled the Saturday slot Plaintiff would 7 not work. Based on Plaintiff’s allegation that he did not, it is also reasonable to infer that 8 Defendant Townsend was motivated by something other than his stated legitimate penological 9 interests, specifically a desire to impose “progressive discipline” in retaliation for Plaintiff’s 10 complaints about the work schedule. 11 The Court finds that Plaintiff has sufficiently pleaded facts to show that Defendant 12 Townsend’s alleged conduct did not serve legitimate penological interests. 13 2. Other Defendants 14 In Claim I, Plaintiff alleges the remaining 13 defendants are also liable for 15 retaliation. Specifically, he contends Defendants Fox, Shleffar, Cueva, Maldonado, Huntley, 16 Boucher, Haley, Kernan, and Allison are responsible as supervisory personnel and Defendants 17 Appleberry, Tileston, Dominguez, and Voong are responsible insofar as they are supervisory 18 personnel, found Plaintiff guilty on a rules violation report, or processed related appeals and 19 grievances.3 Plaintiff’s allegations against each are summarized as follows: 20 Fox Warden of CMF – According to Plaintiff, Defendant Fox is liable because he was empowered to stop the misconduct but 21 did not. See ECF No. 12, pg. 7. Plaintiff states: “Defendant Fox is thus supervisory liable. . . .” Id. at 5. 22 Schleffar Head CDCR Rabbi -- Plaintiff states Defendant Shleffar, was 23 aware of the problem and failed to bring it to the attention of the CDCR’s Statewide Religious Review Committee (SRRC). 24 See id. at 7. 25 Cueva Deputy Warden of CMF – Plaintiff alleges Defendant Cueva is liable for failure to properly train and supervise Defendant 26 Townsend. See id. at 9. 27 3 In Claim V, Plaintiff also raises a due process claim against Defendants 28 Appleberry, Tileston, Fox, Cueva, Dominguez, and Voong related to a rules violation. 1 Moldonado “Contact Person” for the Religious Review Committee (RRC) – Plaintiff states that Defendant Maldonado is liable for failing 2 to correct the situation. See id. 3 Huntley Custody Captain at CMF – According to Plaintiff, Defendant Huntley is liable for failure to train and supervise. See id. at 10. 4 Plaintiff also states Defendant Huntley is liable for failing to intercede. See id. 5 Haley Member of the UCC at CMF – Plaintiff contends Defendant 6 Haley, as a member of the “UCC” which removed Plaintiff from his job as a library clerk, is liable. See id. at 13. 7 Boucher Member of the UCC at CMF – Plaintiff contends Defendants 8 Boucher, as a member of the “UCC” which removed Plaintiff from his job as a library clerk, is liable. See id. 9 Kernan Director of the CDCR – Plaintiff claims that Defendants Kernan 10 is liable for failing to safeguard Plaintiff’s constitutional rights. See id. at 13-14. 11 Allison CDCR’s Director of Adult Institution – Plaintiff claims that 12 Defendants Allison is liable for failing to safeguard Plaintiff’s constitutional rights. See id. 13 Appleberry Hearing Officer at CMF – Plaintiff alleges that Defendant 14 Appelberry was required to uphold Plaintiff’s constitutional rights and that he failed to do so by finding him guilty of a rules 15 violation. See id. at 12. 16 Tileston Chief Disciplinary Officer at CMF – Plaintiff asserts that Defendant Tileston had authority to reverse Defendant 17 Appleberry’s decision but failed to do so. See id. 18 Dominguez Appeals Examiner – Plaintiff claims Defendant Dominguez is liable as a result of denying Plaintiff’s appeal. See id. at 12-13. 19 Voong Chief of Inmate Appeals – Plaintiff claims Defendant Voong 20 is liable as a result of denying Plaintiff’s appeal. See id. 21 The Court finds Plaintiff’s retaliation claim against these defendants fails for 22 several reasons. Specifically, Plaintiff has not adequately pleaded the liability of defendants who 23 are alleged to hold supervisory roles. Further, as to those defendants who are alleged to have 24 been involved in determination of a rules violation report issued to Plaintiff by Defendant 25 Townsend, Plaintiff has not alleged a link between protected conduct and adverse action. Finally, 26 Plaintiff does not state a claim against those defendants who are only alleged to have reviewed 27 Plaintiff’s grievances/appeals. 28 / / / 1 a. Supervisory Defendants 2 Plaintiff’s allegations against Defendants Fox, Shleffar, Cueva, Huntley, 3 Mondonado, Kernan, and Allison are based on the theory that they failed to properly supervise 4 Defendant Townsend. Supervisory personnel are generally not liable under § 1983 for the actions 5 of their employees. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (holding that there is 6 no respondeat superior liability under § 1983). A supervisor is only liable for the constitutional 7 violations of subordinates if the supervisor participated in or directed the violations. See id. The 8 Supreme Court has rejected the notion that a supervisory defendant can be liable based on 9 knowledge and acquiescence in a subordinate’s unconstitutional conduct because government 10 officials, regardless of their title, can only be held liable under § 1983 for his or her own conduct 11 and not the conduct of others. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Supervisory 12 personnel who implement a policy so deficient that the policy itself is a repudiation of 13 constitutional rights and the moving force behind a constitutional violation may, however, be 14 liable even where such personnel do not overtly participate in the offensive act. See Redman v. 15 Cnty of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc). 16 When a defendant holds a supervisory position, the causal link between such 17 defendant and the claimed constitutional violation must be specifically alleged. See Fayle v. 18 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 19 1978). Vague and conclusory allegations concerning the involvement of supervisory personnel in 20 civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th 21 Cir. 1982). “[A] plaintiff must plead that each Government-official defendant, through the 22 official’s own individual actions, has violated the constitution.” Iqbal, 662 U.S. at 676. 23 Here, Plaintiff has not alleged implementation of any policy which resulted in 24 retaliation. Nor has Plaintiff alleged any personal conduct on the part of Defendants Fox, 25 Shleffar, Cueva, Huntley, Mondonado, Kernan, or Allison. Plaintiff should, however, be 26 provided an opportunity to amend to the extent he can do either. 27 / / / 28 / / / 1 b. Defendants Who Ruled on the Rules Violation Report 2 Plaintiff alleges in Claim I that Defendant Appelberry, as the disciplinary hearing 3 officer, was required to uphold Plaintiff’s constitutional rights and that he failed to do so by 4 finding him guilty of a rules violation. See ECF No. 12, pg. 12. Plaintiff also asserts that 5 Defendant Tileston, CMF’s Chef Disciplinary Officer, had authority to reverse Defendant 6 Appleberry’s decision but failed to do so. See id. 7 As discussed above, Plaintiff alleges Defendant Townsend lied in his various 8 reports concerning Plaintiff’s refusal to attend work duty on Saturdays, including the rules 9 violation report at issue which resulted in Plaintiff’s removal from his job in the library. 10 According to Defendants Appleberry and Tileston, Plaintiff improperly refused to attend his work 11 assignment. Moreover, the adverse finding on the rules violation report indicates Defendants 12 Appleberry and Tileston concluded that Plaintiff had, in fact, refused a lawful Saturday work 13 assignment. It is thus unclear whether the alleged adverse action – the guilty finding on the rules 14 violation report – was based on protected conduct or unprotected conduct. It is similarly unclear 15 that the adverse finding did not serve a legitimate penological interest. The Court finds that, 16 while Plaintiff’s allegations are unclear, he should be provided an opportunity to amend to allege 17 facts meeting each of the four elements of retaliation as against Defendants Appleberry and 18 Tileston. 19 c. Defendants Who Reviewed Grievances/Appeals 20 Defendants Dominguez and Voong are alleged to be liable as the Appeals 21 Examiner and Chief of Inmate Appeals, respectively. See id. at 12-13. At the outset, the Court 22 observes that prisoners have no stand-alone due process rights related to the administrative 23 grievance process. See Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); see also Ramirez v. 24 Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding that there is no liberty interest entitling 25 inmates to a specific grievance process). Because there is no right to any particular grievance 26 process, it is impossible for due process to have been violated by ignoring or failing to properly 27 process grievances. Numerous district courts in this circuit have reached the same conclusion. 28 See Smith v. Calderon, 1999 WL 1051947 (N.D. Cal 1999) (finding that failure to properly 1 process grievances did not violate any constitutional right); Cage v. Cambra, 1996 WL 506863 2 (N.D. Cal. 1996) (concluding that prison officials’ failure to properly process and address 3 grievances does not support constitutional claim); James v. U.S. Marshal’s Service, 1995 WL 4 29580 (N.D. Cal. 1995) (dismissing complaint without leave to amend because failure to process 5 a grievance did not implicate a protected liberty interest); Murray v. Marshall, 1994 WL 245967 6 (N.D. Cal. 1994) (concluding that prisoner’s claim that grievance process failed to function 7 properly failed to state a claim under § 1983). 8 Prisoners do, however, retain a First Amendment right to petition the government 9 through the prison grievance process. See Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995). 10 Therefore, interference with the grievance process may, in certain circumstances, implicate the 11 First Amendment. Here, Plaintiff has not alleged that either Defendant Dominguez or Defendant 12 Voong interfered with the grievance process. In the context of Plaintiff’s retaliation claim in 13 which Defendants Dominguez and Voong are named, Plaintiff has not alleged that these 14 defendants reached an adverse decision because Plaintiff requested religious accommodation and 15 in the absence of a legitimate penological interest. Plaintiff should also be provided an 16 opportunity to amend as to Defendants Dominguez and Voong. 17 B. Free Exercise and RLUIPA 18 In Claim II and Claim III, Plaintiff alleges Defendant Townsend violated his 19 religious exercise rights under both the First Amendment (Claim II) and RLUIPA (Claim III) by 20 requiring him to work on Saturdays.4 21 The United States Supreme Court has held that prisoners retain their First 22 Amendment rights, including the right to free exercise of religion. See O'Lone v. Estate of 23 Shabazz, 482 U.S. 342, 348 (1987); see also Pell v. Procunier, 417 U.S. 817, 822 (1974). Thus, 24 for example, prisoners have a right to be provided with food sufficient to sustain them in good 25 health and which satisfies the dietary laws of their religion. See McElyea v. Babbit, 833 F.2d 26 196, 198 (9th Cir. 1987). In addition, prison officials are required to provide prisoners facilities 27 4 In both claims, Plaintiff incorporates his allegations against the other defendants in Claim I by reference. Plaintiff does not add any allegations specific to the other defendants in the 28 context of Plaintiff’s religious exercise claims. 1 where they can worship and access to clergy or spiritual leaders. See Glittlemacker v. Prasse, 428 2 F.2d 1, 4 (3rd Cir. 1970). Officials are not, however, required to supply clergy at state expense. 3 See id. Inmates also must be given a “reasonable opportunity” to pursue their faith comparable to 4 that afforded fellow prisoners who adhere to conventional religious precepts. See Cruz v. Beto, 5 405 U.S. 319, 322 (1972). 6 However, the court has also recognized that limitations on a prisoner’s free 7 exercise rights arise from both the fact of incarceration and valid penological objectives. See 8 McElyea, 833 F.2d at 197. For instance, under the First Amendment, the penological interest in a 9 simplified food service has been held sufficient to allow a prison to provide orthodox Jewish 10 inmates with a pork-free diet instead of a completely kosher diet. See Ward v. Walsh, 1 F.3d 873, 11 877-79 (9th Cir. 1993). Similarly, prison officials have a legitimate penological interest in getting 12 inmates to their work and educational assignments. See Mayweathers v. Newland, 258 F.3d 930, 13 38 (9th Cir. 2001) (analyzing Muslim inmates’ First Amendment challenge to prison work rule). 14 While free exercise of religion claims originally arose under the First Amendment, 15 Congress has enacted various statutes in an effort to provide prisoners with heightened religious 16 protection. See Warsoldier v. Woodford, 418 F.3d 989, 994 (9th Cir. 2005). Prior to these 17 congressional efforts, prison free exercise claims were analyzed under the “reasonableness test” 18 set forth in Turner v. Safley, 482 U.S. 78, 89-91 (1987); see e.g. O’Lone, 382 U.S. at 349. The 19 first effort to provide heightened protection was the Religious Freedom Restoration Act (RFRA) 20 of 1993. However, the Supreme Court invalidated that act and restored the “reasonableness test.” 21 See City of Boerne v. P.F. Flores, 521 U.S. 507 (1997); see also Freeman v. Arpaio, 125 F.3d 22 732, 736 (9th Cir. 1997) (recognizing that the United States Supreme Court’s decision in City of 23 Boerne invalidated RFRA and restored the “reasonableness test” as the applicable standard in free 24 exercise challenges brought by prison inmates). 25 Congress then enacted the Religious Land Use and Institutionalized Persons Act 26 (RLUIPA) in 2000 “. . . in response to the constitutional flaws with RFRA identified in City of 27 Boerne.” Guru Nanak Sikh Soc. of Yuba City v. County of Sutter, 456 F.3d 978, 985 (9th Cir. 28 2006). Under RLUIPA, prison officials are prohibited from imposing “substantial burdens” on 1 religious exercise unless there exists a compelling governmental interest and the burden is the 2 least restrictive means of satisfying that interest. See id. at 986. RLUIPA has been upheld by the 3 Supreme Court, which held that RLUIPA’s “institutionalized-persons provision was compatible 4 with the Court’s Establishment Clause jurisprudence and concluded that RLUIPA ‘alleviates 5 exceptional government-created burdens on private religious exercise.’” Warsoldier, 418 F.3d at 6 994 (quoting Cutter v. Wilkinson, 125 S.Ct. 2113, 2117 (2005)). Congress achieved this goal by 7 replacing the “reasonableness test” articulated in Turner with the “compelling government 8 interest” test codified in RLUIPA at 42 U.S.C. § 2000cc-1(a). See id. 9 Under both the First Amendment and RLUIPA, the prisoner bears the initial 10 burden of establishing that the defendants substantially burdened the practice of his religion by 11 preventing him from engaging in conduct mandated by his faith. See Freeman v. Arpaio,125 F.3d 12 732, 736 (9th Cir. 1997) (analyzing claim under First Amendment); see also Warsoldier, 418 F.3d 13 at 994-95 (analyzing claim under RLUIPA). While RLUIPA does not define what constitutes a 14 “substantial burden,” pre-RLUIPA cases are instructive. See id. at 995 (discussing cases defining 15 “substantial burden” in the First Amendment context). To show a substantial burden on the 16 practice of religion, the prisoner must demonstrate that prison officials’ conduct “. . . burdens the 17 adherent’s practice of his or her religion by pressuring him or her to commit an act forbidden by 18 the religion or by preventing him or her from engaging in conduct or having a religious 19 experience which the faith mandates.” Graham v. Commissioner, 822 F.2d 844, 850-51 (9th Cir. 20 1987). The burden must be more than a mere inconvenience. See id. at 851. In the context of 21 claims based on religious diets, a plaintiff must prove that prison officials refused to provide a 22 diet which satisfies his religious dietary laws or that the available prison menu prevented him 23 from adhering to the religious dietary laws mandated by his faith. See Bryant v. Gomez, 46 F.3d 24 948, 949 (9th Cir. 1995). 25 Defendants argue that even if the regulation issue in this case does create a 26 substantial burden on Plaintiff’s ability to practice his religion, Plaintiff’s free exercise claim still 27 fails because the regulation is reasonable under the four-factor Turner test. ECF No. 32-1, pg. 6. 28 The Court, accepting all allegations in the second amended complaint as true and construing all 1 alleged facts in the light most favorable to Plaintiff, disagrees and finds the second amended 2 complaint states a religious exercise claim under the First Amendment and RLUIPA as against 3 Defendant Townsend.5 4 1. First Amendment Analysis 5 Under the First Amendment “reasonableness test,” where the inmate shows a 6 substantial burden the prison regulation or restriction at issue is nonetheless valid if it is 7 reasonably related to a legitimate penological interest. See Shakur v. Schriro, 514 F.3d 878, 884 8 (9th Cir. 2008) (citing Turner, 482 U.S. at 89). In applying this test, the Court must weight four 9 factors: (1) whether there is a rational connection between the regulation or restriction and the 10 government interest put forward to justify it; (2) whether there are available alternative means of 11 exercising the right; (3) whether accommodation of the asserted religious right will have a 12 detrimental impact on prison guards, other inmates, or the allocation of limited prison resources; 13 and (4) whether there exist ready alternatives to the regulation or restriction. See id.; see also 14 Allen v. Toombs, 827 F.2d 563, 567 (9th Cir. 1987). 15 For the reasons discussed below, the Court finds that, on balance, the Turner 16 factors indicate that Plaintiff’s second amended complaint states a claim under the First 17 Amendment based on an unreasonable restriction related to work as a library clerk on the Jewish 18 Sabbath. 19 a. Whether There is a Rational Connection Between the Regulation and the Government Interest Justifying It 20 21 Defendants argue the first factor – whether there is a rational connection between 22 the restriction and the government interest – weighs in their favor. The Court does not agree. 23 Defendants frame the restriction as a “determin[ation] that there were too may clerks” and the 24 governmental interest as “more efficient use of the prison’s resources.” ECF No. 32-1, pg. 6. 25 Defendants are correct that if there were too many clerks, firing some would be an efficient use of 26 prison resources. However, Plaintiff does not allege that the firing of clerks is the regulation 27 5 To the extent Plaintiff alleges liability in Claim II and Claim III against the other defendants, the Court has recommended Plaintiff be provided an opportunity to amend as 28 discussed further above in the context Plaintiff’s retaliation claim. 1 substantially burdening the practice of his religion. Plaintiff contends that the restriction 2 imposing a substantial burden is the requirement that “all library employees must work on 3 Saturdays” even though Saturday is the Jewish Sabbath. ECF No. 12, pg. 6. Defendants have not 4 shown a rational connection between mandatory Saturday work schedules and more efficient use 5 of prison resources. This factor weights in favor of Plaintiff. 6 b. Whether There are Available Alternative Means of Exercising the Right 7 8 Defendants argue the second factor – whether there are available alternative means 9 of exercising the right – also weighs in their favor. Defendants posit that Plaintiff could continue 10 to observe the Sabbath by changing work positions to a porter, which does not require work to be 11 done on Saturday. See ECF No. 32-1, pg. 6. Plaintiff claims that Defendants did not provide 12 Plaintiff with an alternative means to exercising his right while working at his current job. ECF 13 No. 12, pg. 10. Plaintiff further claims he was told that if he did not want to work on the Sabbath 14 he would have to quit his current job, which is not an appropriate accommodation. Id. 15 The Court agrees with Defendants as to this factor. While Plaintiff focuses on his 16 desire to remain a clerk in the library, Defendants are correct that Plaintiff has no interest in any 17 particular job. See Walker v. Gomez, 370 F.3d 969, 973 (9th Cir. 2004). The right at issue is 18 Plaintiff’s religious right relating to the Sabbath. As to exercising this right, Plaintiff admits in 19 the second amended complaint that he was offered an alternative job that did not require him to 20 work on Saturdays. See ECF No. 12, pg. 10. 21 c. Whether Accommodation Will Have a Detrimental Impact on Prison Guards, Other Inmates, or the Allocation of Limited Prison 22 Resources 23 Defendants argue the third factor – the impact of an accommodation of the 24 asserted constitutional right – weighs in their favor. Defendants posit that “Plaintiff’s failure to 25 report for work on Saturdays created a ripple effect in the law library, prejudicing not only 26 Plaintiff’s fellow clerks, but the other inmates who utilized the library on Saturdays.” ECF No. 27 32-1, pg. 7. This argument is based on pure speculation and not supported by any allegations in 28 the second amended complaint or citation to authority. Furthermore, as alleged in the second 1 amended complaint, after Plaintiff was fired from his law library position, the post was not filled 2 for more than a year, even though there were many qualified candidates at the time and despite 3 Defendants’ assertion that the work-shortage caused by Plaintiff’s actions “prejudiced” the 4 institution. See ECF No. 12, pg. 16. Construing all alleged facts in the light most favorable to 5 Plaintiff and drawing all reasonable inferences, the Court finds that the third Turner factor 6 weights in Plaintiff’s favor. 7 d. Whether There Exist Ready Alternatives to the Regulation 8 Defendants claim the final factor – whether there exist obvious alternatives that 9 indicate an exaggerate response to prison concerns – weighs in their favor. Defendants contend 10 that, “given the decisions made by defendant Fox (to fire four inmate workers from the library as 11 to improve efficient use of prison resources), there was no obvious alternative given Plaintiff’s 12 Sabbath absence.” ECF No. 32-1, pg. 7. In other words, Defendants assert that the only way to 13 run the library at optimal efficiency was to fire all inmate workers who could not work on 14 Saturdays. This argument is not plausible. 15 More plausible is Plaintiff’s contention that hiring another library worker is the 16 most obvious alternative. Plaintiff claims this would ensure prisoner accommodations would not 17 leave the remaining staff overworked or library patrons with long wait times. See ECF No. 12, 18 pg. 15. Plaintiff also alleges a second alternative: simply change Plaintiff’s RDO, allowing him 19 to observe the Sabbath and productively work another day of the week. See Id. These are ready 20 alternatives pleaded in the second amended complaint. This final Turner factor also favors 21 Plaintiff. 22 2. RLUIPA Analysis 23 While the Court finds that Plaintiff’s religious exercise claim may proceed under 24 the First Amendment, and while Defendants do not address Plaintiff’s separate RLUIPA claim, 25 the Court nonetheless does so here and finds that Plaintiff’s RLUIPA claim is also sufficient to 26 proceed. 27 / / / 28 / / / 1 Under RLUIPA, the government is held to a much stricter standard than under the 2 First Amendment alone and must show that the substantial burden placed on religious exercise is 3 “in furtherance of a compelling government interest; and is the least restrictive means of 4 furthering that compelling governmental interest.” Green v. Solano County Jail, 513 F.3d 992, 5 986, 989 (9th Cir. 2008). The government is required to “. . . meet the much stricter burden of 6 showing that the burden it imposes on religious exercise is ‘in furtherance of a compelling 7 government interest; and is the least restrictive means of furthering that compelling governmental 8 interest.’” Green v. Solano County Jail, 513 F.3d 992, 986, 989 (9th Cir. 2008) (citing 42 U.S.C. 9 § 2000cc-1(a)(1)-(2) and 2(b)); see also Warsoldier, 418 F.3d at 994-95. Prison security is an 10 example of a compelling governmental interest. See Green, 513 F.3d at 989 (citing Cutter, 125 11 S.Ct. at 2113 n.13). In establishing that the regulation or restriction is the least restrictive means 12 to achieve a compelling governmental interest, prison officials must show that they actually 13 considered and rejected the efficacy of less restrictive means before adopting the challenged 14 practice. See Green, 513 F.3d at 989 (citing Warsoldier, 418 F.3d at 999). 15 To show a substantial burden on the practice of religion, the prisoner must 16 demonstrate that prison officials’ conduct “. . . burdens the adherent’s practice of his or her 17 religion by pressuring him or her to commit an act forbidden by the religion or by preventing him 18 or her from engaging in conduct or having a religious experience which the faith mandates.” 19 Graham v. Commissioner, 822 F.2d 844, 850-51 (9th Cir. 1987). Here, Plaintiff alleges he is 20 Jewish and is prohibited by his faith from working on Saturdays Judaism prohibits working on 21 the Sabbath. He also alleges that Defendant Townsend imposed a work schedule requiring him to 22 work on the Sabbath. The Court finds Plaintiff has sufficient states a substantial burden on the 23 exercise of his religion. 24 For the reasons discussed above in the context of Claim II under the First 25 Amendment, the Court finds that Plaintiff’s allegations are sufficient to establish, if true, that 26 Defendants’ stated reasons for implementing the new work schedule were not rationally related to 27 the government interest stated to justify it. Thus, the regulation at issue would also fail the 28 stricter “compelling interest” test under RLUIPA. 1 In establishing that the regulation or restriction is the least restrictive means to 2 achieve a compelling governmental interest, prison officials must show that they actually 3 considered and rejected the efficacy of less restrictive means before adopting the challenged 4 practice. See Green, 513 F.3d at 989 (citing Warsoldier, 418 F.3d at 999). As also discussed 5 above in the context of Plaintiff’s First Amendment free exercise claim, the Court finds Plaintiff’s 6 allegations are sufficient to establish that Defendants did not consider less restrictive alternatives 7 (i.e., alternatives which would have allowed Plaintiff to work in the library on days other than 8 Saturdays). 9 C. Equal Protection 10 In Claim IV, Plaintiff alleges Defendant Townsend violated his equal protection 11 rights by treating him differently than other inmates based on religion.6 Equal protection claims 12 arise when a charge is made that similarly situated individuals are treated differently without a 13 rational relationship to a legitimate state purpose. See San Antonio School District v. Rodriguez, 14 411 U.S. 1 (1972). Prisoners are protected from intentional discrimination on the basis of their 15 religion. See Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997). In order to state a § 1983 16 claim based on a violation of the Equal Protection Clause of the Fourteenth Amendment, a 17 plaintiff must allege that defendants acted with intentional discrimination against plaintiff, or 18 against a class of inmates which included plaintiff, and that such conduct did not relate to a 19 legitimate penological purpose. See Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). 20 Defendants posit that Plaintiff fails to plead any facts demonstrating that 21 Defendants intentionally discriminated against him or any other Jewish person in the library. See 22 ECF No. 32-1, pg. 9. Plaintiff alleges “discrimination is the only plausible reason for 23 CMF’s/CDCR’s treatment of Plaintiff – and Jewish inmates, generally – and for CMF’s/CDCR’s 24 retention of the noted policy.” ECF No. 12, pg. 18. However, Plaintiff admits that he had not 25 experienced any negative treatment from any of the defendants until after he criticized the new 26 work schedule. See id. at 6. Plaintiff pleads no facts suggesting the change in schedule was 27 6 As with Claim II and Claim III, Plaintiff’s Claim IV incorporates by reference his 28 general allegations against the other defendants from Claim I. 1 intended to discriminate against him because he is Jewish.7 2 D. Due Process 3 In Claim V, Plaintiff alleges that Defendant Appleberry, Tileston, Fox, Cueva, 4 Dominguez, and Voong are liable for violation of Plaintiff’s due process rights for finding hm 5 guilty of a false rules violation report. 6 The Due Process Clause protects prisoners from being deprived of life, liberty, or 7 property without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). With 8 respect to prison disciplinary proceedings, due process requires prison officials to provide the 9 inmate with: (1) a written statement at least 24 hours before the disciplinary hearing that includes 10 the charges, a description of the evidence against the inmate, and an explanation for the 11 disciplinary action taken; (2) an opportunity to present documentary evidence and call witnesses, 12 unless calling witnesses would interfere with institutional security; and (3) legal assistance where 13 the charges are complex or the inmate is illiterate. See Wolff, 418 U.S. at 563-70. Due process is 14 satisfied where these minimum requirements have been met, see Walker v. Sumner, 14 F.3d 15 1415, 1420 (9th Cir. 1994), and where there is “some evidence” in the record as a whole which 16 supports the decision of the hearing officer, see Superintendent v. Hill, 472 U.S. 445, 455 (1985). 17 The “some evidence” standard is not particularly stringent and is satisfied where “there is any 18 evidence in the record that could support the conclusion reached.” Id. at 455-56. 19 Defendants argue Plaintiff’s due process claim is not cognizable. See ECF No. 32- 20 1, pg. 10. The Court agrees. See Patkins v. Ferguson, No. 19-CV-05139-EMC, 2018 WL 21 6671513 at *2 (N.D. Cal. 2018); see also Smith v. Mensinger, 293 F.3d 641, 653-54 (3rd Cir. 22 2002) (concluding that prisoner failed to state due process claim based on false charges because 23 the punishment imposed was not an atypical hardship under Sandin v. Conner, 515 U.S. 472, 484 24 (1995)); see also Freeman v. Rideout, 808 F.2d 949, 951-52 (2nd Cir. 1986) (concluding 25 allegations that false evidence was planted by a prison guard do not state a due process claim 26 where procedural due process protections are provided). 27 7 To the point, Plaintiff alleges in Claim I that Defendant Townsend’s conduct was 28 motivated by an intent to retaliate, not discriminate. 1 Here, Plaintiff contends he suffered removal from his library clerk job and loss of 2 good-conduct points as a result of the guilty finding. See ECF No. 12, pg. 5. These are the 3 typical kinds of hardships inmates face. Because Plaintiff was not assessed an atypical hardship 4 as a result of the guilty finding, Plaintiff cannot state a due process claim based on the alleged 5 falsity of the report. Further, Plaintiff has not alleged that he was denied any of the required 6 procedural protections in the context of the disciplinary proceedings. 7 E. Official Capacity 8 The Eleventh Amendment prohibits federal courts from hearing suits brought 9 against a state both by its own citizens, as well as by citizens of other states. See Brooks v. 10 Sulphur Springs Valley Elec. Coop., 951 F.2d 1050, 1053 (9th Cir. 1991). The Eleventh 11 Amendment also bars actions seeking damages from state officials acting in their official 12 capacities. See Eaglesmith v. Ward, 73 F.3d 857, 859 (9th Cir. 1995); Pena v. Gardner, 976 F.2d 13 469, 472 (9th Cir. 1992) (per curiam). The Eleventh Amendment does not, however, bar suits 14 against state officials acting in their personal capacities. See id. Under the doctrine of Ex Parte 15 Young, 209 U.S. 123 (1908), the Eleventh Amendment does not bar suits for prospective 16 declaratory or injunctive relief against state officials in their official capacities. See Armstrong v. 17 Wilson, 124 F.3d 1019, 1025 (9th Cir. 1997). 18 Defendants argue Plaintiff’s claims are barred to the extent they are raised against 19 any defendant in their official capacities. ECF No. 32-1, pg. 11. To the extent Plaintiff does not 20 sue the defendants in their individual capacities or seek prospective injunctive relief – both of 21 which Plaintiff does in the second amended complaint – the Court agrees. Here, Plaintiff alleges 22 Defendants Kernan, Allison, and Fox are sued in their individual, as well as official, capacities. 23 See ECF No 12, pg. 3. All other defendants are sued in their individual capacities only. See id. at 24 4. Furthermore, Plaintiff seeks a permanent injunction directing defendants Kernan, Allison, and 25 Fox to provide various forms of prospective relief. See id. at 21. 26 / / / 27 / / / 28 / / / 1 IV. CONCLUSION 2 Based on the foregoing, the undersigned recommends that: 3 1. Defendants’ motion to dismiss, ECF No. 32, be granted in part and denied 4 | in part; 5 2. Defendants’ motion be granted as to Plaintiff's equal protection claim 6 | (Claim IV) and Plaintiff's due process claim (Claim V); 7 3. Defendants’ motion be denied as to Plaintiffs retaliation claim (Claim I) 8 | and religious exercise claims (Claim II and Claim II) against Defendant Townsend; 9 4. Defendants’ motion be granted as to Plaintiff's claims against the 10 | remaining 13 defendants; and 11 5. Plaintiff be provided the opportunity to either: 12 (a) Elect to proceed on the second amended complaint as against Defendant Townsend only on Plaintiff's retaliation and 13 religious exercise claims (Claim I, Claim II, and Claim III); or 14 (b) File a third amended complaint. 15 These findings and recommendations are submitted to the United States District 16 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 17 | after being served with these findings and recommendations, any party may file written 18 | objections with the court. Responses to objections shall be filed within 14 days after service of 19 | objections. Failure to file objections within the specified time may waive the right to appeal. See 20 | Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991), 21 22 | Dated: March 24, 2021 Sx