Tonney Killensworth v. D. Godfrey

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 TONNEY KILLENSWORTH, Case No. 2:19-cv-06029-VBF (MAA)

12 Plaintiff, MEMORANDUM DECISION AND

ORDER DISMISSING FIRST

13 v.

AMENDED COMPLAINT WITH

14 LEAVE TO AMEND

D. GODFREY et al.

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Defendants.

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17

18 I. INTRODUCTION

19 On July 10, 2019, Plaintiff Tonney Killensworth (“Plaintiff”), an inmate at

20 California State Prison – Corcoran, proceeding pro se, filed a Complaint alleging

21 violations of his civil rights pursuant to 42 U.S.C. § 1983 (“Section 1983”).

22 (Compl., ECF No. 1.) On October 24, 2019, the Court screened and dismissed the

23 Complaint with leave to file an amended Complaint. (Order Dismiss Compl., ECF

24 No. 13.) Plaintiff filed a First Amended Complaint on November 6, 2019. (“FAC,”

25 ECF No. 14 .)

26 The Court has screened the FAC as prescribed by 28 U.S.C. § 1915A and 28

27 U.S.C. § 1915(e)(2)(B). For the reasons stated below, the FAC is DISMISSED

28 WITH LEAVE TO AMEND. Plaintiff is ORDERED to, within thirty days after

1 the date of this Order, either: (1) file a Second Amended Complaint, or (2) advise

2 the Court that Plaintiff does not intend to file a Second Amended Complaint.

3

4 II. PLAINTIFF’S ALLEGATIONS AND CLAIMS

5 The FAC is filed against: (1) Sergeant D. Godfrey, (2) Sergeant R. Aguirre,

6 (3) Lieutenant G. Marshall, and (4) Lieutenant B. Legier (each a “Defendant” and

7 collectively, “Defendants”). (FAC 3–4.)1 Each Defendant is sued in his or her

8 individual capacity. (Id.)

9 The FAC and attached exhibits2 contain the following allegations and claims.

10 The July 13, 2018 Crime/Incident Report authored by Defendant Legier states that

11 on Wednesday, July 11, 2018 at approximately 9:49 a.m., the California State Prison

12 – Los Angeles County Investigative Service Unit responded to a Code 1 alarm in

13 Facility C. (Id. at 20.) Inmate Jackson was the victim of an attempted murder with a

14 weapon by inmate Castro. (Id.)

15 On July 11, 2018 at 7:51 p.m., Plaintiff was served an Administrative

16 Segregation Unit Placement Notice (“Ad-Seg Notice”), authored by Defendant

17 Marshall. (Id. at 12.) The Ad-Seg Notice stated that “confidential information was

18 received indicating [Plaintiff] may have played a role in the attempted murder of

19 Inmate Jackson,” and that Plaintiff “will remain in Ad-Seg pending completion of

20 the investigation” by ISU. (Id.) Plaintiff contends that Defendant Marshall placed

21 him into administrative segregation solely on hearsay and no other evidence, and

22 paperwork was forged and fabricated against Plaintiff. (Id. at 5–6.) Plaintiff asserts

23 that he was in his assigned cell during the incident, “oblivious to what was going

24 on.” (Id. at 3.)

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1 Citations to pages in docketed documents reference those generated by CM/ECF.

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2 Documents attached to a complaint are part of the complaint and may be

considered in determining whether the plaintiff can prove any set of facts in support

28 of the claim. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987).

1 On July 20, 2018, Plaintiff was served a second Ad-Seg Notice, authored by

2 Defendant Legier. (Id. at 16.) The second Ad-Seg Notice stated that the

3 investigation into Plaintiff’s involvement in the attempted murder of inmate Jackson

4 was completed, and “a determination to charge [Plaintiff] with Solicitation of

5 Murder of an Inmate was made on July 19, 2018 based on confidential memorandum

6 dated July 11, 2018, July 12, 2018 and July 13, 2018.” (Id.) Plaintiff alleges that

7 Defendant Legier conspired with the other Defendants to fabricate documents and

8 deny Plaintiff an opportunity to defend himself against “trumped up” charges. (Id.

9 at 6.)

10 An August 8, 2018 RVR Supplemental Investigative Report (“Report) stated

11 that on July 31, 2018, J. Aparicio was assigned as the investigative employee for

12 Plaintiff’s Rules Violation Report (“RVR”). (Id. at 9.) The Report listed the

13 “reporting employee” as Defendant Aguirre. (Id.)

14 Plaintiff contends that Defendant Aguirre was his senior hearing officer. (Id.

15 at 5.) Plaintiff alleges that he asked to question the two inmates involved in the

16 incident, but Defendant Aguirre deemed all of Plaintiff’s questions irrelevant. (Id.)

17 Plaintiff believes that if he had been allowed to question the inmates, he would have

18 been able to prove that he had nothing to do with the incident. (Id.)

19 On November 1, 2018, Plaintiff filled out a grievance directed towards

20 Defendant Aguirre, asking Defendant Aguirre why he was involved in Plaintiff’s

21 RVR and why he declined Plaintiff’s questions on his investigative report. (Id. at

22 11.) On November 2, 2018, Defendant Aguirre responded that he only entered the

23 RVR on behalf of Correctional Officer Camacho because he was on vacation, and

24 Defendant Aguirre did not decline Plaintiff’s questions because that can only be

25 done by the hearing officer. (Id.)

26 Plaintiff alleges that Defendant Godfrey compounded the problem by denying

27 Plaintiff the fair chance to use the prison grievance system, discriminating against

28 Plaintiff, and not giving him the same treatment as others. (Id. at 3, 6.)

1 Based on the foregoing, Plaintiff asserts violations of the following rights:

2 (1) due process (id. at 5.); (2) Fourteenth Amendment equal protection (id.); and

3 (3) Eighth Amendment (id. at 7.). Plaintiff seeks $200,000 in damages and

4 restoration of his good-time credits. (Id. at 8.)

5

6 III. LEGAL STANDARD

7 Federal courts must conduct a preliminary screening of any case in which a

8 prisoner seeks redress from a governmental entity or officer or employee of a

9 governmental entity (28 U.S.C. § 1915A), or in which a plaintiff proceeds in forma

10 pauperis (28 U.S.C. § 1915(e)(2)(B)). The court must identify cognizable claims

11 and dismiss any complaint, or any portion thereof, that is: (1) frivolous or malicious,

12 (2) fails to state a claim upon which relief may be granted, or (3) seeks monetary

13 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b),

14 1915(e)(2)(B).

15 When screening a complaint to determine whether it fails to state a claim upon

16 which relief can be granted, courts apply the Federal Rule of Civil Procedure

17 12(b)(6) (“Rule 12(b)(6)”) standard. See Wilhelm v. Rotman, 680 F.3d 1113, 1121

18 (9th Cir. 2012) (applying the Rule 12(b)(6) standard to 28 U.S.C. § Section 1915A);

19 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (applying the Rule 12(b)(6)

20 standard to 28 U.S.C. § 1915(e)(2)(B)(ii)). “Dismissal under Rule 12(b)(6) is

21 appropriate only where the complaint lacks a cognizable legal theory or sufficient

22 facts to support a cognizable legal theory.” Hartmann v. Cal. Dep’t of Corr. &

23 Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013) (quoting Mendiondo v. Centinela Hosp.

24 Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008)).

25 Rule 12(b)(6) is read in conjunction with Federal Rule of Civil Procedure 8(a)

26 (“Rule 8”), “which requires not only ‘fair notice of the nature of the claim, but also

27 grounds on which the claim rests.’” See Li v. Kerry, 710 F.3d 995, 998 (9th Cir.

28 2013) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 n.3 (2007)). In

1 reviewing a motion to dismiss, the court will accept the plaintiff’s factual allegations

2 as true and view them in the light most favorable to the plaintiff. Park v. Thompson,

3 851 F.3d 910, 918 (9th Cir. 2017). Although “detailed factual allegations” are not

4 required, “[t]hreadbare recitals of the elements of a cause of action, supported by

5 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678

6 (2009). “Conclusory allegations of law . . . are insufficient to defeat a motion to

7 dismiss.” Park, 851 F.3d at 918 (alteration in original) (quoting Lee v. City of Los

8 Angeles, 250 F.3d 668, 679 (9th Cir. 2001)). Rather, a complaint must “contain

9 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

10 on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “A claim

11 has facial plausibility when the plaintiff pleads factual content that allows the court

12 to draw the reasonable inference that the defendant is liable for the misconduct

13 alleged.” Iqbal, 556 U.S. at 663. “If there are two alternative explanations, one

14 advanced by defendant and the other advanced by plaintiff, both of which are

15 plausible, plaintiff’s complaint survives a motion to dismiss under Rule 12(b)(6).”

16 Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). “Plaintiff’s complaint may be

17 dismissed only when defendant’s plausible alternative explanation is so convincing

18 that plaintiff’s explanation is implausible.” Id.

19 Where a plaintiff is pro se, particularly in civil rights cases, courts should

20 construe pleadings liberally and afford the plaintiff any benefit of the doubt.

21 Wilhelm, 680 F.3d at 1121. “[B]efore dismissing a pro se complaint the district

22 court must provide the litigant with notice of the deficiencies in his complaint in

23 order to ensure that the litigant uses the opportunity to amend effectively.” Akhtar v.

24 Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (quoting Ferdik v. Bonzelet, 963 F.2d

25 1258, 1261 (9th Cir. 1992)). A court should grant a pro se plaintiff leave to amend a

26 defective complaint “unless it is absolutely clear that the deficiencies of the

27 complaint could not be cured by amendment.” Akhtar, 698 F.3d at 1212 (quoting

28 Shucker v. Rockwood, 846 F.2d 1202, 1203–04 (9th Cir. 1988) (per curiam)).

1 IV. DISCUSSION

2 A. Plaintiff’s Claims Potentially Are Heck-Barred.

3 “Federal law opens two main avenues to relief on complaints related to

4 imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under

5 [Section 1983]. Challenges to the validity of any confinement or to particulars

6 affecting its duration are the province of habeas corpus; requests for relief turning on

7 circumstances of confinement may be presented in a § 1983 action.” Muhammad v.

8 Close, 540 U.S. 749, 750 (2004) (per curiam) (citations omitted).

9 A Section 1983 complaint must be dismissed pursuant to Heck v. Humphrey if

10 judgment in favor of the plaintiff would undermine the validity of his or her

11 conviction or sentence, unless the plaintiff can demonstrate that the conviction or

12 sentence already has been invalidated, either through state litigation or federal writ

13 of habeas corpus. 512 U.S. at 477, 486–87 (1994). However, the Heck bar applies

14 only “where success would necessarily imply the unlawfulness of a (not previously

15 invalidated) conviction or sentence.” Wilkinson v. Dotson, 544 U.S. 74, 81 (2005).

16 In Edwards v. Balisock, the Supreme Court applied Heck to bar a Section

17 1983 action involving allegedly defective prison disciplinary procedures resulting in

18 a loss of good time credits. 520 U.S. 641, 648 (1997). The Supreme Court later

19 clarified in Muhammad v. Close that an inmate’s Section 1983 challenge to

20 disciplinary proceedings are not barred by Heck if the challenge “threatens no

21 consequence for [the] conviction or the duration of [the] sentence.” 540 U.S. at 751.

22 If the invalidity of the disciplinary proceedings, and therefore the restoration of good

23 time credits, would not necessarily affect the length of time to be served, then the

24 claim falls outside the core of habeas and may be brought pursuant to Section 1983.

25 See id. at 754–55.

26 Applying that limitation, the Ninth Circuit concluded in Nettles v. Grounds

27 that Heck did not bar a California inmate serving a life sentence from bringing a

28 Section 1983 challenge to a disciplinary hearing that resulted in the loss of good

1 time credits. 830 F.3d 922, 934–36 (9th Cir. 2016) (en banc). Because Nettles was

2 serving a life sentence, success on the merits of his claim “would not necessarily

3 lead to immediate or speedier release because the expungement of the challenged

4 disciplinary violation would not necessarily lead to a grant of parole.” Id. at 934–35.

5 “Under California law, the parole board must consider ‘[a]ll relevant, reliable

6 information’ in determining suitability for parole.” Id. at 935 (quoting Cal. Code

7 Regs. Tit. 15, § 2281(b)). “A rules violation is merely one of the factors shedding

8 light on whether a prisoner ‘constitutes a current threat to the public safety.” Nettles,

9 830 F.3d at 935 (quoting In re Lawrence, 44 Cal.4th 1181, 1191 (2008)). The parole

10 board may deny parole “on the basis of any of the grounds presently available to it.”

11 Nettles, 830 F.3d at 935 (quoting Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir.

12 2003)). Thus, “the presence of a disciplinary infraction does not compel the denial

13 of parole, nor does an absence of an infraction compel the grant of parole.” Nettles,

14 830 F.3d at 935.

15 Here, Plaintiff seeks restoration of lost good-time credits. (FAC 8.) Plaintiff

16 alleges that his sentence is twenty-four years, that he is a youth offender with a

17 “board date” in 2020, and that his parole date is 2027. (Id.) As Plaintiff is not

18 serving a life sentence, restoration of lost good-time credits potentially could impact

19 the length of his sentence and thus potentially be Heck-barred. See cf. Nettles, 830

20 F.3d at 934–36. However, the Court makes no ruling on the potential applicability

21 of Heck at this time.

22

23 B. The FAC Does Not State a Section 1983 Claim.

24 Section 1983 provides a cause of action against “every person who, under

25 color of any statute . . . of any State . . . subjects, or causes to be subjected, any

26 citizen . . . to the deprivation of any rights, privileges, or immunities secured by the

27 Constitution and laws . . . .” Wyatt v. Cole, 504 U.S. 158, 161 (1992) (alteration in

28 original) (quoting 42 U.S.C. § 1983). The purpose of Section 1983 is “to deter state

1 actors from using the badge of their authority to deprive individuals of their

2 federally guaranteed rights and to provide relief to victims if such deterrence fails.”

3 Wyatt, 504 U.S. at 161. To state a claim under Section 1983, a plaintiff must allege:

4 (1) a right secured by the Constitution or laws of the United States was violated; and

5 (2) the alleged violation was committed by a person acting under color of state law.

6 West v. Atkins, 487 U.S. 42, 48 (1988). For the reasons below, the Court concludes

7 that the FAC does not state any Section 1983 claims.

8

9 1. The FAC Does Not State an Eighth Amendment Claim for

10 Cruel and Unusual Punishment.

11 “[T]he treatment a prisoner receives in prison and the conditions under which

12 he is confined are subject to scrutiny under the Eighth Amendment,” which prohibits

13 cruel and unusual punishments. Farmer v. Brennan, 511 U.S. 825, 832 (1994)

14 (quoting Helling v. McKinney, 509 U.S. 25, 31 (1993)). “[W]hile conditions of

15 confinement may be, and often are, restrictive and harsh, they ‘must not involve the

16 wanton and unnecessary infliction of pain.’” Morgan v. Morgensen, 465 F.3d 1041,

17 1045 (9th Cir. 2006) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). “In

18 other words, they must not be devoid of legitimate penological purpose, or contrary

19 to ‘evolving standards of decency that mark the progress of a maturing society.’”

20 Morgan, 465 F.3d at 1045 (citation omitted) (quoting Trop v. Dulles, 356 U.S. 86,

21 101 (1958)). “An Eighth Amendment claim that a prison official has deprived

22 inmates of humane conditions must meet two requirements, one objective and one

23 subjective.” Lopez v. Smith, 203 F.3d 1122, 1132 (9th Cir. 2000) (quoting Allen v.

24 Sakai, 48 F.3d 1082, 1087 (9th Cir. 1995)).

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26 Objective Prong. First, “the deprivation alleged must be, objectively,

27 sufficiently serious; a prison official’s act or omission must result in the denial of the

28 minimal civilized measure of life’s necessities.” Farmer, 511 U.S. at 834 (internal

1 quotations and citations omitted). “Prison officials have a duty to ensure that

2 prisoners are provided adequate shelter, food, clothing, sanitation, medical care, and

3 personal safety.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). “The

4 circumstances, nature, and duration of a deprivation of these necessities must be

5 considered in determining whether a constitutional violation has occurred. ‘The

6 more basic the need, the shorter the time it can be withheld.’” Id. (quoting Hoptowit

7 v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982)).

8 Here, the FAC does not allege a “sufficiently serious” denial of “the minimal

9 civilized measure of life’s necessities.” Farmer, 511 U.S. at 834. Indeed, the FAC

10 does not allege any inhumane conditions of confinement. To the extent that

11 Plaintiff’s Eighth Amendment claim is based on his placement in administrative

12 segregation, the Court previously explained that administrative segregation does not

13 violate the Eighth Amendment’s prohibition against cruel and unusual punishment.

14 See Anderson v. County of Kern, 45 F.3d 1310, 1315–16 (9th Cir. 1995). (See Order

15 Dismiss Compl. 10–11.)

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17 Subjective Prong. Second, subjectively, the prison official must act with

18 “deliberate indifference” to an inmate’s health or safety—that is, “the official knows

19 of and disregards an excessive risk to inmate health or safety; the official must both

20 be aware of facts from which the inference could be drawn that a substantial risk of

21 serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837.

22 Here, there are no allegations in the FAC from which it reasonably could be

23 inferred that any Defendant acted with deliberate indifference to Plaintiff’s health or

24 safety. The only specific allegations in the FAC regarding Defendants are that:

25 Defendant Marshall issued an Ad-Seg Notice and placed Plaintiff into administrative

26 segregation based on hearsay and fabricated documents (FAC 5–6, 12); Defendant

27 Lieger issued a second Ad-Seg Notice to Plaintiff and conspired with the other

28 Defendants to deny Plaintiff the opportunity to defend himself (id. at 6, 16);

1 Defendant Aguirre served as the hearing officer on Plaintiff’s investigative

2 employee report and denied Plaintiff’s questions to the witnesses (id. at 5.); and

3 Defendant Godfrey denied Plaintiff’s appeal (id. at 11). It cannot reasonably be

4 inferred from these allegations that any Defendant knew of, and disregarded, an

5 excessive risk to Plaintiff’s health or safety. See Farmer, 511 U.S. at 837.

6

7 For these reasons, Plaintiff’s Eighth Amendment cruel and unusual

8 punishment claim fails. The Court previously explained the deficiencies of

9 Plaintiff’s Eighth Amendment claim. (See Order Dismiss Compl. 9–14.) If Plaintiff

10 files an amended complaint with an Eighth Amendment claim for cruel and unusual

11 punishment, he must correct these deficiencies or risk dismissal of this claim.

12

13 2. The FAC Does Not State a Fourteenth Amendment

14 Procedural Due Process Claim.

15 The Due Process Clause of the Fourteenth Amendment of the United States

16 Constitution prohibits the government from depriving “any person of life, liberty, or

17 property without due process of law.” U.S. Const. amend. XIV § 1. To plead a

18 procedural due process violation, a plaintiff must allege two elements: (1) the

19 plaintiff has a “liberty or property interest which has been interfered with by the

20 State”; and (2) the procedures employed to deprive the plaintiff of liberty or property

21 were constitutionally insufficient. Ky. Dep’t. of Corr. v. Thompson, 490 U.S. 454,

22 460 (1989).

23

24 Liberty Interest. The FAC sufficiently alleges a constitutionally-protected

25 liberty interest: Plaintiff’s good time credits. Superintendent, Mass. Corr. Inst. v.

26 Hill, 472 U.S. 445, 453 (1985) (“[D]ue process requires procedural protections

27 before a prison inmate can be deprived of a protected liberty interest in good time

28 credits.”); see also Wallace v. Fox, No. CF 15-6305-PSG (SP), 2017 U.S. Dist.

1 LEXIS 151599, at *9 (C.D. Cal. July 31, 2017) (recognizing California good time

2 credits as a protected liberty interest under the Fourteenth Amendment). Thus,

3 whether Plaintiff has alleged a cognizable Fourteenth Amendment claim turns on

4 whether the procedures that deprived him of his time good-time credits were

5 constitutionally deficient.

6

7 Procedural Protections. In Wolff v. McDonnell, 418 U.S. 539 (1974), the

8 Supreme Court set forth the required due process protections for inmate disciplinary

9 proceedings. However, a lesser quantum of due process than Wolff is required when

10 a prisoner is placed into administrative segregation. See Hewitt v. Helms, 459 U.S.

11 460, 476 (1983).

12 [W]hen prison officials initially determine whether a prisoner is to be

13 segregated for administrative reasons due process only requires the following

14 procedures: Prison officials must hold an informal nonadversary hearing

15 within a reasonable time after the prisoner is segregated. The prison officials

16 must inform the prisoner of the charges against the prisoner or their reasons

17 for considering segregation. Prison officials must allow the prisoner to

18 present his views.

19 We specifically find that the due process clause does not require detailed

20 written notice of charges, representation by counsel or counsel-substitute, an

21 opportunity to present witnesses, or a written decision describing the reasons

22 for placing the prisoner in administrative segregation. We also find that due

23 process does not require disclosure of the identity of any person providing

24 information leading to the placement of a prisoner in administrative

25 segregation.

26 Toussaint v. McCarthy, 801 F.2d 1080, 1100–01 (9th Cir. 1986) (citations omitted),

27 abrogated in part on other grounds, Sandin v. Conner, 515 U.S. 472 (1995).

28 ///

1 Here, Plaintiff alleges that Defendant Aguirre improperly deemed Plaintiff’s

2 questions as irrelevant and denied Plaintiff the opportunity question witnesses.

3 (FAC 5.) These allegations do not assert violation of the procedural due process

4 protections required for administrative segregation. See Toussaint, 801 F.2d at

5 1100–01. No allegations suggest that Plaintiff was denied an informal non-

6 adversary hearing within a reasonable time after he was segregated, denied notice of

7 the charges against him, or denied the opportunity to present his views. See id.

8 Plaintiff also alleges that Defendants forged and fabricated the paperwork

9 against Plaintiff. (FAC 5–6.) Even accepting these allegations as true, the

10 Constitution does not protect Plaintiff from false accusations. Buckley v. Gomez, 36

11 F. Supp. 2d 1216, 1222 (S.D. Cal. 1997) (“Even accepting as true Plaintiff’s

12 allegation that the report was falsified, courts have held that a prisoner does not have

13 a constitutional right to be free from wrongfully issued disciplinary reports.”), aff’d

14 without opinion, 168 F.3d 498 (9th Cir. 1999); Freeman v. Rideout, 808 F.2d 949,

15 951 (2d Cir. 1986) (“The prison inmate has no constitutionally guaranteed immunity

16 from being falsely or wrongly accused of conduct which may result in the

17 deprivation of a protected liberty interest”).

18 To the extent Plaintiff challenges the sufficiency of the evidence supporting

19 his administrative segregation, such a claim would fail based on the allegations in

20 the FAC. Due process claims based on administrative segregation are subject to the

21 “some evidence” standard of Superintendent, Massachusetts Correctional Institution

22 v. Hill, 472 U.S. 445, 455 (1985). Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir.

23 2003). “Under Hill, [courts] do not examine the entire record, independently assess

24 witness credibility, or reweigh the evidence; rather, ‘the relevant question is whether

25 there is any evidence in the record that could support the conclusion.’” Id. (quoting

26 Hill, 472 U.S. at 455–56). No allegations suggest that Plaintiff’s administrative

27 segregation failed to meet the “minimally stringent” “some evidence” standard.

28 Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987).

1 Finally, to the extent that Plaintiff asserts a due process claim due to

2 Defendant Godfrey’s denial of Plaintiff’s appeal (FAC 3, 6), such a claim also

3 would fail. Defendant Godfrey’s alleged failure to process Plaintiff’s grievance

4 properly, without more, is not enough to establish a violation of Plaintiff’s

5 constitutional rights. See Peralta v. Dillard, 744 F.3d 1076, 1087 (9th Cir. 2014).

6 Inmates are not entitled to a specific grievance procedure. Ramirez v. Galaza, 334

7 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988);

8 see also Gonzales v. Woodford, No. C 04-5447 SI (pr), 2005 U.S. Dist. LEXIS 6621,

9 at *5–6 (N.D. Cal. Apr. 12, 2005) (“Because [plaintiff] had no federal constitutional

10 right to a properly functioning appeal system, an incorrect decision on an

11 administrative appeal, a failure to process an appeal in a particular way, or any other

12 structural problem in the appeals system did not amount to a violation of his right to

13 due process.”).

14 For these reasons, the FAC fails to state a Fourteenth Amendment procedural

15 due process claim. The Court previously explained the deficiencies of Plaintiff’s

16 Fourteenth Amendment procedural due process claim. (See Order Dismiss Compl.

17 15–18.) If Plaintiff asserts violations of his procedural due process rights in any

18 amended complaint, he must correct these deficiencies or risk dismissal of this

19 claim.

20

21 3. The FAC Does Not State a Fourteenth Amendment Equal

22 Protection Claim.

23 “The Equal Protection Clause of the Fourteenth Amendment provides that

24 ‘[n]o State shall . . . deny to any person within its jurisdiction the equal protection of

25 the laws.’” Angelotti Chiropractic v. Baker, 791 F.3d 1075, 1085 (9th Cir. 2015)

26 (quoting U.S. Const. amend. XIV, § 1) (alteration in original). “The Equal

27 Protection Clause requires the State to treat all similarly situated people equally.”

28 Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013).

1 “This does not mean, however, that all prisoners must receive identical treatment

2 and resources.” Id. A plaintiff can state an equal protection claim: (1) by alleging

3 “facts plausibly showing that ‘the defendants acted with an intent or purpose to

4 discriminate against [them] based upon membership in a protected class,” id.

5 (quoting Thornton v. City of St. Helens, 425 F.3d 1158, 1166 (9th Cir. 2005)

6 (alteration in original)); or (2) as a “class of one” by alleging that plaintiff has “been

7 intentionally treated differently from others similarly situated and that there is no

8 rational basis for the treatment,” Village of Willowbrook v. Olech, 528 U.S. 562, 564

9 (2000).

10 Here, the FAC simply contains the conclusory allegation that Plaintiff “wasn’t

11 given equal protection under the Fourteenth Amendment.” (FAC 5.) The FAC does

12 not allege facts to support the reasonable inference that Plaintiff is a member of a

13 protected class and that any Defendant intentionally treated Plaintiff differently from

14 any other inmate because of his membership in that protected class. See Hartmann,

15 707 F.3d at 1123. Prisoners are not a suspect class for equal protection purposes, see

16 Rodriguez v. Cook, 169 F.3d 1176, 1179 (9th Cir. 1999), and the FAC does not

17 allege that Defendants treated Plaintiff differently due to a suspect distinction. See

18 New Orleans v. Dukes, 427 U.S. 297, 303 (1975) (noting that “suspect distinctions

19 such as race, religion, or alienage” are protected classes for equal protection

20 purposes). The FAC also does not include any allegations from which it could be

21 inferred that any Defendant acted with an intent or purpose to discriminate against

22 Plaintiff because of his membership in a protected class. See Serrano v. Francis,

23 345 F.3d 1071, 1082 (9th Cir. 2003) (“Intentional discrimination means that a

24 defendant acted at least in part because of a plaintiff’s protected status.”) (quoting

25 Maynard v. City of San Jose, 37 F.3d 1396, 1404 (9th Cir. 1994)). Finally, the FAC

26 does not allege facts to support the conclusion that any Defendant intentionally

27 treated Plaintiff differently from others similarly situated without any rational basis

28 for the treatment. See Village of Willowbrook, 528 U.S. at 564.

1 For these reasons, the FAC fails to state a Fourteenth Amendment equal

2 protection claim. The Court previously advised Plaintiff of the deficiencies of his

3 equal protection claim. (See Order Dismiss Compl. 18–20.) If Plaintiff asserts

4 violations of his equal protection rights in any amended complaint, he must correct

5 these deficiencies or risk dismissal of this claim.

6

7 4. The FAC Does Not State a Section 1983 Conspiracy Claim.

8 A conspiracy to violate constitutional rights must be predicated on a viable

9 underlying constitutional claim. See Thornton v. City of St. Helens, 425 F.3d 1158,

10 1168 (9th Cir. 2005). A conspiracy claim requires “an actual deprivation of

11 constitutional rights.” Hart v. Parks, 450 F.3d 1059, 1071 (9th Cir. 2006).

12 In addition, a conspiracy claim involving Section 1983 requires allegations

13 supporting “an agreement or ‘meeting of the minds’ to violate constitutional rights.”

14 Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002) (quoting United Steelworkers of

15 Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1540–41 (9th Cir. 1989)). “To be liable,

16 each participant in the conspiracy need not know the exact details of the plan, but

17 each participant must at least share the common objective of the conspiracy.”

18 Franklin, 312 F.3d at 441 (quoting United Steelworkers of Am., 865 F.2d at 1541).

19 This agreement or meeting of the minds may be inferred on the basis of

20 circumstantial evidence, such as the actions of the defendants. Mendocino Envtl.

21 Ctr. v. Mendocino County, 192 F.3d 1283, 1301 (9th Cir. 1999). A showing that

22 defendants committed acts that “are unlikely to have been undertaken without an

23 agreement” may support the inference of conspiracy. Id. (quoting Kunik v. Racine

24 County, 946 F.2d 1574, 1580 (7th Cir. 1991)). Conclusory allegations of conspiracy

25 to violate Constitutional rights are insufficient to state a Section 1983 claim. See

26 Burns v. County of King, 883 F.2d 819, 821 (9th Cir. 1989).

27 The FAC does not state a conspiracy claim for two reasons. First, as

28 explained above, the FAC does not adequately state any deprivation of constitutional

1 rights. See Woodrum v. Woodward County, 866 F.2d 1121, 1126–27 (9th Cir. 1989)

2 (explaining that Section 1983 applies only to conspiracy claims that result in a

3 deprivation of constitutional rights). Second, the FAC does not allege specific facts

4 of an agreement or meeting of the minds to violate Plaintiff’s constitutional rights.

5 Without any supporting facts, the FAC simply alleges that Defendants conspired to

6 fabricate documents and not give Plaintiff a chance to defend himself against the

7 false charges. (FAC 6.) “To state a claim for a conspiracy to violate one’s

8 constitutional rights under section 1983, the plaintiff must state specific facts to

9 support the existence of the claimed conspiracy.” Burns, 883 F.2d at 821.

10 For these reasons, Plaintiff’s Section 1983 conspiracy claim fails. The Court

11 previously advised Plaintiff of these deficiencies. (See Order Dismiss Compl. 23–

12 24.) If Plaintiff alleges a conspiracy in any amended complaint, Plaintiff must

13 correct these deficiencies or risk dismissal of this claim.

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15 V. CONCLUSION

16 For the reasons stated above, the Court DISMISSES the FAC WITH

17 LEAVE TO AMEND. Although highly doubtful that Plaintiff could amend the

18 FAC to overcome the deficiencies explained in this order, Plaintiff may have one

19 final opportunity to amend and cure the deficiencies given his pro se prisoner

20 status. Plaintiff is ORDERED to, within thirty days after the date of this Order,

21 either: (1) file a Second Amended Complaint (“SAC”), or (2) advise the Court that

22 Plaintiff does not intend to file a SAC.

23 The SAC must cure the pleading defects discussed above and shall be

24 complete in itself without reference to the FAC. See L.R. 15-2 (“Every amended

25 pleading filed as a matter of right or allowed by order of the Court shall be complete

26 including exhibits. The amended pleading shall not refer to the prior, superseding

27 pleading.”). This means that Plaintiff must allege and plead any viable claims in the

28 ///

1 SAC again. Plaintiff shall not include new defendants or new allegations that are

2 not reasonably related to the claims asserted in the FAC.

3 In any amended complaint, Plaintiff should confine his allegations to those

4 operative facts supporting each of his claims. Plaintiff is advised that pursuant to

5 Rule 8, all that is required is a “short and plain statement of the claim showing that

6 the pleader is entitled to relief.” Plaintiff strongly is encouraged to utilize the

7 standard civil rights complaint form when filing any amended complaint, a

8 copy of which is attached. In any amended complaint, Plaintiff should identify the

9 nature of each separate legal claim and make clear what specific factual allegations

10 support each of his separate claims. Plaintiff strongly is encouraged to keep his

11 statements concise and to omit irrelevant details. It is not necessary for Plaintiff to

12 cite case law, include legal argument, or attach exhibits at this stage of the litigation.

13 Plaintiff also is advised to omit any claims for which he lacks a sufficient factual

14 basis.

15 The Court explicitly cautions Plaintiff that failure to timely file a SAC, or

16 timely advise the Court that Plaintiff does not intend to file a SAC, will result in

17 a recommendation that this action be dismissed for failure to prosecute and/or

18 failure to comply with court orders pursuant to Federal Rule of Civil Procedure

19 41(b).

20 Plaintiff is not required to file an amended complaint, especially since a

21 complaint dismissed for failure to state a claim without leave to amend may count as

22 a strike under 28 U.S.C. § 1915(g). Instead, Plaintiff may request voluntary

23 dismissal of the action pursuant to Federal Rule of Civil Procedure 41(a) using the

24 attached Notice of Voluntary Dismissal form.

25 Plaintiff is advised that this Court’s determination herein that the allegations

26 in the FAC are insufficient to state a particular claim should not be seen as

27 dispositive of the claim. Accordingly, although the undersigned Magistrate Judge

28 believes Plaintiff has failed to plead sufficient factual matter in the pleading,

1 || accepted as true, to state a claim for relief that is plausible on its face, Plaintiff is not

2 || required to omit any claim or Defendant in order to pursue this action. However, if

3 || Plaintiff decides to pursue a claim in an amended complaint that the undersigned

4 || previously found to be insufficient, then pursuant to 28 U.S.C. § 636, the

5 || undersigned ultimately may submit to the assigned District Judge a recommendatior

6 || that such claim may be dismissed with prejudice for failure to state a claim, subject

7 || to Plaintiff’s right at that time to file objections. See Fed. R. Civ. P. 72(b); C.D. Cal

8 | L.R. 72-3.

9 IT IS SO ORDERED.

11 || DATED: December 19, 2019

12 M . AUDERO

3 UNITED STATES MAGISTRATE JUDGE

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