# (PC) Blackwell v. Tsui

> District Court, E.D. California · March 6, 2023

URL: https://www.frixlaw.com/law-library/cases/10050915

## Case

- **Court:** District Court, E.D. California
- **Decided:** March 6, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 BRADLEY BLACKWELL, No. 2:21-cv-2207 KJM AC P
12 Plaintiff,
13 v. ORDER
14 DAVID TSUI, et al.,
15 Defendants.
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17 Plaintiff, a state prisoner proceeding pro se and in forma pauperis, seeks relief pursuant to
18 42 U.S.C. § 1983. Pending before the Court is plaintiff’s First Amended Complaint.1
19 The Court is required to screen complaints brought by prisoners seeking relief against “a
20 governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a).
21 The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are
22 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[]
23 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b).
24 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.”
25 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th
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27 1 Plaintiff filed the amended pleading before the Court had an opportunity to screen the original
complaint pursuant to 28 U.S.C. § 1915A(a). His application to proceed in forma pauperis was
28 granted in January 2022. ECF No. 8.
1 Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal
2 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639,
3 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as
4 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a
5 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis.
6 Franklin, 745 F.2d at 1227-28 (citations omitted).
7 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the
8 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of
9 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550
10 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
11 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context
12 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman,
13 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure
14 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a
15 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the
16 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “[T]he pleading must contain
17 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally
18 cognizable right of action.” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur
19 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)).
20 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
21 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
22 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual
23 content that allows the court to draw the reasonable inference that the defendant is liable for the
24 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this
25 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg.
26 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the
27 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor,
28 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted).
1 I. Complaint
2 At all times relevant to this action, plaintiff was housed at Mule Creek State Prison
3 (“MCSP”) in Ione, California. He alleges that his First and Fourteenth Amendment rights have
4 been violated by MCSP Correctional Officer (“CO”) David Tsui, CO James Brown, Chief Deputy
5 Warden Brian Holmes, and Sergeant E. Baskerville. Plaintiff seeks damages.
6 Plaintiff, a non-binary inmate, is a member of the Inmate Advisory Council (“IAC”)
7 where he advocates for the rights of LGBTQ inmates at MCSP.2 In the past, CO Tsui and CO
8 Brown made multiple disparaging remarks about the LGBTQ community to plaintiff. CO Tsui
9 once said, “All faggots are weirdos, gays are an abomination, and this place is swarming with
10 men who fuck men, so they need men like me to set them straight!” Another time, plaintiff
11 approached the officers regarding IAC business. CO Tsui told plaintiff, “Blackwell, how can you
12 be a IAC [ w]hen your [sic] obviously gay and living with a male that wears bras and panties, and
13 you have the balls to talk to me about what I do in the building. I’ll teach you!” CO Brown then
14 said, “You have the nerve to come over to our area and talk about what we’re doing wrong during
15 second watch in our building. I’ll show you how we treat faggots in this building.”
16 On June 18, 2021, plaintiff and his cellmate were being held in the Program Office
17 awaiting an escort to Administrative Segregation. While they waited, CO Tsui and CO Brown
18 inventoried their personal and state property. When the officers finished, they demanded that
19 plaintiff and his cellmate sign the property inventory form, which the inmates reluctantly signed
20 “[u]nder duress and intimidation.” Plaintiff states that there was no mention of property disposal.
21 After plaintiff and his cellmate returned to their cell a few days later, they learned that CO
22 Tsui and CO Brown had given several items of their property to other inmates. One inmate, Scott
23 Rembert, told plaintiff that Rembert’s cellmate, Fantroy, was given some of the property.
24 Plaintiff and his cellmate complained, but they were only able to retrieve some of their property.
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2 If plaintiff informs the court that other pronouns (such as the singular “they/them”) are more
appropriate, the court will honor a request to use them. It is not clear from the first amended
27 complaint what pronouns plaintiff uses. It is also unclear to the court whether plaintiff identifies
as gay as well as non-binary; plaintiff references discrimination both on the basis of gender and
28 on the basis of sexual preference. This distinction makes no difference to the screening analysis.
1 The following day, Fantroy assaulted Rembert in retaliation for having told plaintiff.
2 On June 25, 2021, plaintiff filed an inmate grievance (the “first grievance”) for staff
3 misconduct, gender discrimination, and theft. The same day, CO Tsui issued plaintiff a Rules
4 Violation Report (“RVR”) for Possession of Excessive Property. Plaintiff alleges that Chief
5 Deputy Warden Brian Holmes denied his first grievance without investigating his claims and
6 based solely on the RVR issued by CO Tsui.
7 On June 30, 2021, plaintiff filed a second inmate grievance (the “second grievance”)
8 concerning the property theft and the RVR. Two months later, plaintiff received a response
9 stating that the property issue was denied as duplicative of his first grievance, the staff
10 misconduct claim was under investigation, and there would be no further response on the issue.
11 The response did not address plaintiff’s claim that the theft and RVR were related to gender
12 discrimination.
13 On August 31, 2021, plaintiff filed a third inmate grievance (the “third grievance”) in
14 which he alleged that Sergeant Baskerville threatened to fire him (presumably from the IAC) if he
15 did not drop the second grievance. When plaintiff declines, Sergeant Baskerville called him
16 “derogatory” names and showed the confidential second grievance to other inmates and staff,
17 which led to plaintiff being called a “Rat.” The third grievance was denied on December 2, 2021.
18 On December 5, 2021, plaintiff filed a fourth inmate grievance (the “fourth grievance”),
19 claiming that his first grievance was denied due to discrimination and lack of investigation.
20 Plaintiff’s fourth grievance was also denied.
21 Plaintiff alleges that Chief Deputy Warden Holmes denied the first through fourth
22 grievances without conducting an adequate investigation and in retaliation for plaintiff exercising
23 his First Amendment rights.
24 II. Analysis
25 A. First Amendment Retaliation
26 To state a claim under 42 U.S.C. § 1983 for retaliation, the prisoner plaintiff must
27 establish the following: (1) prison officials took adverse action against the inmate; (2) the adverse
28 action was taken because the inmate engaged in protected conduct; (3) the adverse action chilled
1 the inmate’s First Amendment rights; and (4) the adverse action did not serve a legitimate
2 penological purpose. See Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005).
3 Plaintiff adequately alleges that CO Tsui and Sergeant Baskerville retaliated against him
4 for the filing of the first and second grievances, respectively, and that CO Tsui and CO Brown
5 retaliated against him for his advocacy on the IAC. 3 Plaintiff does not, however, state a claim
6 against Chief Deputy Warden Holmes as the allegations are too conclusory to suggest that this
7 defendant’s actions were related to plaintiff’s protected conduct.
8 B. Fourteenth Amendment
9 i. Equal Protection
10 “The Equal Protection Clause requires the State to treat all similarly situated people
11 equally.” Hartmann v. California Dep’t of Corr. & Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013)
12 (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). To state a claim
13 for violation of the Equal Protection Clause, a prisoner must allege facts plausibly showing that
14 the defendants intentionally treated him differently from other similarly situated inmates without
15 a rational basis, see Lee v. City of L.A., 250 F.3d 668, 686 (9th Cir. 2001), or that the defendants
16 intentionally discriminated against him based upon his membership in a protected class, see
17 Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam); see also Thornton v.
18 City of St. Helens, 425 F.3d 1158, 1166 (9th Cir. 2005) (plaintiff must show “that the defendants
19 acted with an intent or purpose to discriminate against the plaintiff based upon membership in a
20 protected class”). “Intentional discrimination means that a defendant acted at least in part
21 because of a plaintiff’s protected status.” Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003)
22 (emphasis in original).
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3 Plaintiff’s allegations as to Sergeant Baskerville may also implicate the Eighth Amendment.
24 This defendant is accused of showing plaintiff’s confidential grievance to other inmates and staff,
leading to plaintiff being labeled a “Rat.” See, e.g., Sutton v. Wash. State Dep’t of Corr., 2015
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WL 4748233, at *7 (E.D. Wash. Aug. 11, 2015) (“It is well established that being revealed as a
26 snitch may be sufficient to meet [the objectively serious risk of harm] standard.” (citing
Valandingham v. Bojorquez, 866 F.2d 1135, 1139 (9th Cir. 1989)). If plaintiff chooses to file a
27 second amended complaint and wishes to more clearly assert such a claim, he must describe the
challenged conduct in sufficient detail to demonstrate that defendant was aware of the objectively
28 serious risk to plaintiff’s safety and intentionally disregarded it.
1 Plaintiff brings an equal protection claim against CO Tsui, CO Brown, and Sergeant
2 Baskerville. The Court finds that plaintiff states a cognizable claim against CO Tsui and CO
3 Brown premised on the officers’ handling of inmates’ personal property — that is, showing
4 preferential treatment towards straight ad cisgender inmates versus gay, non-binary, and
5 transgender inmates. Plaintiff does not, however, state an equal protection claim against Sergeant
6 Baskerville. While plaintiff alleges that this defendant called him “derogatory” names when he
7 refused to withdraw his inmate grievance, the amended complaint does not specify the nature of
8 those insults. Without such details, there is nothing to suggest that Sergeant Baskerville’s actions
9 were related to plaintiff’s status as a non-binary inmate.
10 ii. Due Process
11 Plaintiff next asserts a due process claim against all defendants for “denying gays, non-
12 binary, and the transgender inmates the opportunity to be free from harassment, discrimination,
13 and gender[-]based stereotyping.” Pursuant to the Due Process Clause of the Fourteenth
14 Amendment, “no state shall ‘deprive any person of life, liberty, or property without due process
15 of law.’ ” Toussaint v. McCarthy, 801 F.2d 1080, 1089 (9th Cir. 1986), overruled on other
16 grounds, Sandin v. Conner, 515 U.S. 472 (1995). The due process guarantees of the Fourteenth
17 Amendment thus “apply only when a constitutionally protected liberty or property interest is at
18 stake.” Tellis v. Godinez, 5 F.3d 1314, 1316 (9th Cir. 1993). As there is no liberty interest in
19 being free from harassment, discrimination, or stereotyping, this claim fails as to all defendants.4
20 Liberally construing the pleading, plaintiff also asserts a due process claim against Chief
21 Deputy Warden Holmes for his role in reviewing plaintiff’s grievances. But plaintiff has no
22 stand-alone due process rights related to the administrative grievance process. Ramirez v.
23 Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)
24 (holding that there is no protected liberty interest to a grievance procedure). California’s
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4 This finding does not render plaintiff without recourse. Discrimination claims are properly
analyzed under the Equal Protection clause of the Fourteenth Amendment. Claims of harassment
27 and stereotyping, however, are not cognizable. See Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir.
1996) (“verbal harassment generally does not violate the Eighth Amendment”); opin. amended on
28 denial of rehearing, 135 F.3d 1318 (9th Cir. 1998).
1 regulations grant prisoners a purely procedural right: the right to have a prison appeal. See Cal.
2 Code Regs. tit. 15, §§ 3084-3084.9 (2014). In other words, prison officials are not required under
3 federal law to process inmate grievances in a certain way. Thus, the denial, rejection, screening
4 out of issues, review, or cancellation of a grievance does not constitute a due process violation.
5 See, e.g., Evans v. Skolnik, 637 F. App’x 285, 288 (9th Cir. 2015) (a prison official’s denial of a
6 grievance does not itself violate the constitution); Wright v. Shannon, No. 1:05-cv-01485-LJO-
7 YNP PC, 2010 WL 445203, at *5 (E.D. Cal. Feb. 2, 2010) (plaintiff’s allegations that prison
8 officials denied or ignored his inmate appeals failed to state a cognizable claim under the First
9 Amendment); Towner v. Knowles, No. CIV S-08-2823 LKK EFB P, 2009 WL 4281999 at *2
10 (E.D. Cal. Nov. 20, 2009) (allegations that prison officials screened out his inmate appeals
11 without any basis failed to indicate a deprivation of federal rights); Williams v. Cate, 1:09-CV-
12 00568-OWW-YNP PC, 2009 WL 3789597, at *6 (E.D. Cal. Nov. 10, 2009) (“Plaintiff has no
13 protected liberty interest in the vindication of his administrative claims.”). Similarly, plaintiff
14 may not impose liability on a defendant simply because he played a role in processing plaintiff’s
15 inmate appeals. See Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (because an
16 administrative appeal process is only a procedural right, no substantive right is conferred, no due
17 process protections arise, and the “failure to process any of Buckley’s grievances, without more,
18 is not actionable under section 1983.”). Accordingly, plaintiff cannot and does not state a
19 cognizable claim based on the processing and/or denial of any inmate grievance.
20 III. Leave to Amend
21 For the reasons set forth above, the Court finds that the amended complaint does not state
22 a First Amendment retaliation claim against defendant Holmes, a Fourteenth Amendment equal
23 protection claim against Sergeant Baskerville, or a Fourteenth Amendment due process claim
24 against any defendant. However, it appears that plaintiff may be able to allege facts to remedy
25 this, and he will be given the opportunity to amend the complaint if he desires.
26 Plaintiff may proceed forthwith to serve defendants CO Tsui, CO Brown, and Sergeant
27 Baskerville on his First Amendment retaliation claim, and against CO Tsui and CO Brown on his
28 ////
1 Fourteenth Amendment equal protection claim. In the alternative, plaintiff may delay serving any
2 defendant and file a second amended complaint.
3 Plaintiff will be required to complete and return the attached notice advising the court how
4 he wishes to proceed. If plaintiff chooses to amend, he will be given thirty days to file a second
5 amended complaint. If plaintiff elects to proceed on his claims against defendants CO Tsui, CO
6 Brown, and Sergeant Baskerville without further amendment, the court will proceed to serve the
7 amended complaint. A decision to go forward without amending the operating pleading will be
8 considered a voluntarily dismissal without prejudice of his First Amendment retaliation claim
9 against defendant Holmes, his Fourteenth Amendment equal protection claim against Sergeant
10 Baskerville, and his Fourteenth Amendment due process claim against all defendants.
11 If plaintiff chooses to file a second amended complaint, he must demonstrate how the
12 conditions about which he complains resulted in a deprivation of his constitutional rights. Rizzo
13 v. Goode, 423 U.S. 362, 370-71 (1976). Also, the complaint must allege in specific terms how
14 each named defendant is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th
15 Cir. 1981). There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link
16 or connection between a defendant’s actions and the claimed deprivation. Id.; Johnson v. Duffy,
17 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, “[v]ague and conclusory allegations of official
18 participation in civil rights violations are not sufficient.” Ivey v. Bd. of Regents, 673 F.2d 266,
19 268 (9th Cir. 1982) (citations omitted).
20 Plaintiff is also informed that the court cannot refer to a prior pleading to make his
21 amended complaint complete. Local Rule 220 requires that an amended complaint be complete
22 without reference to any prior pleading. This is because, generally, an amended complaint
23 supersedes the original complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967) (citations
24 omitted), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012)
25 (claims dismissed with prejudice and without leave to amend do not have to be re-pled in
26 subsequent amended complaint to preserve appeal). Once plaintiff files an amended complaint,
27 the original complaint no longer serves any function in the case. Therefore, in an amended
28 ////
1 complaint, as in an original complaint, each claim and the involvement of each defendant must be
2 sufficiently alleged.
3 IV. Plain Language Summary of this Order for a Pro Se Litigant
4 Some of the allegations in the amended complaint state claims against the defendants and
5 some do not. You properly allege that CO Tsui, CO Brown, and Sergeant Baskerville violated
6 your First Amendment rights by retaliating against you for protected conduct, and that CO Tsui
7 and CO Brown violated your Fourteenth Amendment rights by treating you differently from
8 straight male inmates. You do not state a First Amendment retaliation claim against defendant
9 Holmes, a Fourteenth Amendment equal protection claim against Sergeant Baskeville, or a
10 Fourteenth Amendment due process claim against any defendant.
11 You have a choice to make. You may either (1) proceed immediately on your First and
12 Fourteenth Amendment claims against CO Tsui, CO Brown, and Sergeant Baskerville and
13 voluntarily dismiss the other claims or (2) try to amend the amended complaint. If you want to
14 go forward without amending the amended complaint, you will be voluntarily dismissing without
15 prejudice all claims against Chief Deputy Warden Holmes, your Fourteenth Amendment equal
16 protection claim against Sergeant Baskerville, and your Fourteenth Amendment due process
17 claim against all defendants.
18 If you choose to file a second amended complaint, it must include all claims you want to
19 bring. Once a second amended complaint is filed, the court will not look at any information in
20 the original complaint. Any claims and information not in the first amended complaint will
21 not be considered. You must complete the attached notification showing what you want to do
22 and return it to the court. Once the court receives the notice, it will issue an order telling you
23 what you need to do next (i.e., file an amended complaint or wait for defendants to be served).
24 CONCLUSION
25 In accordance with the above, IT IS HEREBY ORDERED that:
26 1. Plaintiff’s amended complaint does not state a First Amendment retaliation claim
27 against defendant Holmes, a Fourteenth Amendment equal protection claim against Sergeant
28 Baskerville, or a Fourteenth Amendment due process claim against any defendant.
] 2. Plaintiff has the option to proceed immediately on his First Amendment retaliation
2 || claim against CO Tsui, CO Brown, and Sergeant Baskerville, and his Fourteenth Amendment
3 || equal protection claim against CO Tsui and CO Brown. In the alternative, plaintiff may file a
4 || second amended complaint.
5 3. Within fourteen days of service of this order, plaintiff shall complete and return the
6 || attached form notifying the court whether he wants to proceed on the screened complaint or
7 || whether he wants to file a second amended complaint. If plaintiff does not return the form, the
8 | court will assume that he is choosing to proceed on the amended complaint as screened and will
9 || recommend dismissal without prejudice of the claims against Holmes, the Fourteenth
10 || Amendment equal protection claim against Sergeant Baskerville, and the Fourteenth Amendment
11 || due process claim against all defendants.
12 | DATED: March 3, 2023 A / ~

13 ALLISON CLAIRE
14 UNITED STATES MAGISTRATE JUDGE
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7 UNITED STATES DISTRICT COURT
8 FOR THE EASTERN DISTRICT OF CALIFORNIA
9
10 BRADLEY BLACKWELL, No. 2:21-cv-2207 KJM AC P
11 Plaintiff,
12 v. PLAINTIFF’S NOTICE ON HOW TO
PROCEED
13 DAVID TSUI, et al.,
14 Defendants.
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Check one:
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_____ Plaintiff wants to proceed immediately on his First Amendment retaliation claim against
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CO Tsui, CO Brown, and Sergeant Baskerville, and his Fourteenth Amendment equal
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protection claim against CO Tsui and CO Brown. Plaintiff understands that, by going
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forward without amending the amended complaint, he is voluntarily dismissing without
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prejudice his First Amendment retaliation claim against Holmes, his Fourteenth
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Amendment equal protection claim against Sergeant Baskerville, and his Fourteenth
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Amendment due process claim against all defendants pursuant to Federal Rule of Civil
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Procedure 41(a).
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_____ Plaintiff wants to amend the amended complaint.
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26 DATED:_______________________
Bradley Blackwell
27 Plaintiff pro se
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10050915. Public record. Not legal advice.