denying summary judgment on a retaliation claim where an official denied a grievance 16 and warned the prisoner to “be careful what he writes and requests in his administrative 17 grievances”
How later courts described this case
- denying summary judgment on a retaliation claim where an official denied a grievance 16 and warned the prisoner to “be careful what he writes and requests in his administrative 17 grievances”
- “There is no respondeat superior 22 liability under § 1983.”
- explaining that he “never got the chance to refuse the legal mail because [he] 6 has never written or spoken with the law firm”
- holding that a prisoner has no constitutional right to an effective grievance or appeal 11 procedure
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 UBALDO MIO GUTIERREZ, Case No. 2:22-CV-01492-JDP (PC)
12 Plaintiff, SCREENING ORDER THAT PLAINTIFF:
13 v. (1) PROCEED ONLY WITH THE
CLAIM FOUND COGNIZABLE, OR
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P.REYERSBACH, et al.,
(2) DELAY SERVING ANY
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Defendants. DEFENDANT AND FILE AN
16 AMENDED COMPLAINT
17 ECF No. 1
18 THIRTY-DAY DEADLINE
19 ORDER THAT PLAINTIFF’S MOTION TO
PROCEED IN FORMA PAUPERIS BE
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GRANTED
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ECF No. 2
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23 Plaintiff Gutierrez, a prisoner proceeding without counsel in this civil rights action under
24 42 U.S.C. § 1983, alleges several violations of his constitutional rights. ECF No. 1. As currently
25 pled, plaintiff has stated a claim for retaliation against defendant Carrillo but has otherwise failed
26 to state a claim. Plaintiff must choose whether to proceed only with his retaliation claim against
27 Carrillo or to delay serving any defendant and to file an amended complaint. Plaintiff has also
28 filed a motion to proceed in forma pauperis, ECF No. 2, which I will grant.
1 Screening and Pleading Requirements
2 A federal court must screen a prisoner’s complaint that seeks relief against a governmental
3 entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable
4 claims and dismiss any portion of the complaint that is frivolous or malicious, that fails to state a
5 claim upon which relief may be granted, or that seeks monetary relief from a defendant who is
6 immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2).
7 A complaint must contain a short and plain statement that plaintiff is entitled to relief,
8 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its
9 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not
10 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S.
11 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere
12 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not
13 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024,
14 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that
15 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264
16 n.2 (9th Cir. 2006) (en banc) (citations omitted).
17 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404
18 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it
19 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which
20 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017).
21 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements
22 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251,
23 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).
24 Analysis
25 Plaintiff Gutierrez, a prisoner at Folsom State Prison, alleges that defendant Reyersbach, a
26 corrections officer at Folsom, opened his legal mail outside of his presence and discovered a
27 contraband cell phone. ECF No. 1 at 6. He alleges that Reyersbach then filed a rule violation
28 against him for conspiracy to possess a cell phone, resulting in plaintiff being sentenced to six
1 months in segregation and a loss of privileges. Id. He claims that relying on this evidence
2 violates his rights under the Fourteenth Amendment Due Process clause, both because
3 Reyersbach discovered the alleged contraband by improperly opening his legal mail and because
4 plaintiff purportedly would not have accepted a package from a law firm with which he has no
5 relationship. Id. (explaining that he “never got the chance to refuse the legal mail because [he]
6 has never written or spoken with the law firm”). He further alleges that defendants Pantoja and
7 Albin—both lieutenants at Folsom—violated his due process rights during the subsequent
8 disciplinary hearing by preventing him from questioning Reyersbach and by failing to dismiss the
9 charge against him. Id. at 7 & 8.
10 The Due Process clause entitles prisoners to certain procedural protections before being
11 subjected to disciplinary sanctions; however, it only applies where the sanctions are severe
12 enough to “implicate[] a protected liberty interest—that is, . . . [if they] impose an ‘atypical and
13 significant hardship on the inmate in relation to the ordinary incidents of prison life.’” Brown v.
14 Or. Dep’t. of Corr., 751 F.3d 983, 987 (9th Cir. 2014) (quoting Sandin v. Conner, 515 U.S. 472,
15 484 (1995)). If a plaintiff can show such an atypical and significant hardship, he is entitled to
16 notice of disciplinary charges, an opportunity to present a defense, an explanation for the
17 decision, and an impartial hearing officer. See Wolff v. McDonnell, 418 U.S. 539, 568 (1974).
18 As currently pled, these allegations are not sufficient to state cognizable procedural due
19 process claims.1 As an initial matter, the allegation that plaintiff was sentenced to six months in
20 segregated confinement does not provide sufficient facts to plausibly allege an atypical and
21 significant hardship.2
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23 1 Plaintiff does not allege that opening his legal mail violated his First or Sixth
Amendment rights. However, had he done so, his allegations would also be insufficient to state a
24 claim since he expressly disclaims the existence of an attorney-client relationship.
2 Although placements in segregation can “impose[] an atypical and significant hardship,”
25
Brown, 751 F.3d at 987, “determining whether a prison hardship is atypical and significant . . .
‘requires case by case, fact by fact consideration.’” Serrano, 345 F.3d at 1078 (quoting Keenan v.
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Hall, 83 F.3d 1083, 1089 (9th Cir. 1996)). In conducting this inquiry, courts assess factors
27 including how the conditions imposed compare to conditions in other housing placements, “the
duration . . . [and] degree of restraint imposed . . . [, and] whether the state’s action will invariably
28 affect the duration of the prisoner’s sentence.” Id. (citing Sandin, 515 U.S. at 486-487).
1 Even assuming that his housing placement implicated a protected liberty interest, the
2 allegation that Reyersbach charged him with possessing a contraband cell phone based on
3 insufficient or unlawfully obtained evidence fails to state a cognizable procedural due process
4 claim. “[A] prisoner has no constitutionally guaranteed immunity from being falsely or wrongly
5 accused of conduct which may result in the deprivation of a protected liberty interest.”
6 Muhammad v. Rubia, 2010 WL 1260425, at *3 (N.D. Cal., Mar. 29, 2010), aff’d, 453 F. App’x
7 751 (9th Cir. 2011); see also Harper v. Costa, No. 2:07-cv-02149-LKK-DAD, 2009 WL
8 1684599, at *2-3 (E. D. Cal. June 16, 2009) (collecting cases), aff’d, 393 F. App’x 488 (9th Cir.
9 2010). The Due Process Clause requires only that prisoners be afforded certain procedural
10 protections, set forth in Wolff v. McDonnell, 418 U.S. 539, 568 (1974), and that “some evidence
11 supports the decision by the prison disciplinary board,” Superintendent v. Hill, 472 U.S. 445, 455
12 (1985) (emphasis added). The finding of a contraband cell phone in a package addressed to
13 plaintiff meets this deferential standard, even if the phone was obtained in violation of a prison
14 regulation or constitutional rule. See Hines v. Gomez, 108 F.3d 265, 269-70 (9th Cir. 1997)
15 (holding that the bare allegations of a prison official satisfied the “some evidence” standard, even
16 after finding a dispute of fact as to whether the allegations were retaliatory).
17 Plaintiff’s allegations that defendants Pentoja and Albin refused him an opportunity to
18 question defendant Reyersbach are similarly insufficient. Although an absolute proscription on
19 calling witnesses would fall short of the minimal due process to which prisoners are entitled in
20 disciplinary hearings, prison officials retain wide latitude in determining when and how a prisoner
21 may question a particular witness. See Mitchell v. Dupnik, 75 F.3d 517, 525 (9th Cir. 1996)
22 (“[Due process] does require that ‘the decision to preclude the calling of a witness should be
23 made on a case-by-case analysis of the potential hazards which may flow from the calling of a
24 particular person.’”) (quoting Bartholomew v. Watson, 665 F.2d 915, 918 (9th Cir. 1982)).
25 Particularly in light of the insufficient allegations of an atypical and significant hardship, the bare
26 allegation that plaintiff was denied the opportunity to call a single witness is insufficient to plead
27 a denial of due process; at a minimum, he should indicate whether defendants provided any
28 reason for the denial and how the denial affected his ability to present a defense.
1 Plaintiff also brings claims against defendants Carrillo and Johnson—respectively, a
2 correctional counselor and the chief deputy warden Folsom—for a variety of alleged failures in
3 processing his grievances. ECF No. 1 at 9-13. He alleges that Carrillo improperly rejected his
4 grievance eight times in three months and, on at least one occasion, threatened retaliation by
5 saying that plaintiff should “stop filing because things would get difficult for [him].” Id. at 9. He
6 similarly alleges that Johnson improperly denied his grievance and “lied on the plaintiff’s 602
7 appeal that there were no new issues.” Id. at 11. These allegations do not state due process
8 claims, since a prisoner has “no legitimate claim of entitlement to a grievance procedure.” Mann
9 v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th
10 Cir. 2003) (holding that a prisoner has no constitutional right to an effective grievance or appeal
11 procedure). However, because “the mere threat of harm can be an adverse action, regardless of
12 whether it is carried out,” Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir. 2009), his allegation
13 that Carrillo warned him to stop filing grievances states a potentially cognizable claim for
14 retaliation under the First Amendment. See Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir.
15 2009) (denying summary judgment on a retaliation claim where an official denied a grievance
16 and warned the prisoner to “be careful what he writes and requests in his administrative
17 grievances”) (internal marks omitted).
18 Finally, plaintiff claims that defendant Hill, the warden at Folsom, is liable in his capacity
19 as supervisor. Id. at 12. Because plaintiff fails to allege specific facts from which to infer Hill’s
20 knowledge or personal involvement in any constitutional violation, his allegations do not state a
21 claim. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (“There is no respondeat superior
22 liability under § 1983.”).
23 Within thirty days, plaintiff must either advise that he wishes to proceed only with his
24 cognizable claim against Carrillo or delay serving any defendant and file and amended complaint.
25 If he decides to file an amended complaint, the amended complaint will supersede the current
26 complaint. See Lacey v. Maricopa Cnty., 693 F. 3d 896, 907 n.1 (9th Cir. 2012) (en banc). This
27 means that the amended complaint will need to be complete on its face without reference to the
28 prior pleading. See E.D. Cal. Local Rule 220. Once an amended complaint is filed, the current
1 | complaint no longer serves any function. Therefore, in an amended complaint, as in an original
2 | complaint, plaintiff will need to assert each claim and allege each defendant’s involvement in
3 | sufficient detail. The amended complaint should be titled “First Amended Complaint” and refer
4 | to the appropriate case number.
5 Accordingly, it is ORDERED that:
6 1. Plaintiff's motion to proceed in forma pauperis, ECF No. 2
7 2. Within thirty days from the service of this order, plaintiff must either advise that he
g || wishes to proceed only with his cognizable claim or delay serving any defendant and file and
g || amended complaint.
10 3. Failure to comply with this order may result in the dismissal of this action.
11 4. The Clerk of Court is directed to send plaintiff a complaint form.
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IT IS SO ORDERED.
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4 Dated: _ November 29, 2022 sa
15 aw D. PETERSON
6 UNITED STATES MAGISTRATE JUDGE
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