upholding visual strip searches 1 conducted outside prisoner’s cell as reasonably related to the legitimate penological interest 2 in keeping drugs out of the prison
How later courts described this case
- upholding visual strip searches 1 conducted outside prisoner’s cell as reasonably related to the legitimate penological interest 2 in keeping drugs out of the prison
- holding that 26 prison transfer may constitute an adverse action
- “Even when, as here, the [prison] 4 transfer involves long distances and an ocean crossing [from Hawaii to California], the 5 confinement remains within constitutional limits.”
- plaintiff must 8 plead enough facts to plausibly establish defendants’ “retaliatory motive”
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 HAISANI REYNOLDS, Case No. 3:21-cv-00955-BAS-RBB
CDCR #AN-9755,
12
ORDER:
Plaintiff,
13
v. (1) GRANTING MOTION TO
14
PROCEED IN FORMA PAUPERIS
RAYMOND MADDEN, et al.,
15 (ECF No. 2);
Defendants.
16
(2) DISMISSING COMPLAINT FOR
17 FAILING TO STATE A CLAIM
PURSUANT TO
18
28 U.S.C. § 1915(e)(2)(B) AND
19 28 U.S.C. § 1915A(b); AND
20
(3) GRANTING PLAINTIFF 60 DAYS
21 LEAVE TO AMEND THE
COMPLAINT
22
23
24 Plaintiff Haisani Reynolds, incarcerated at Centinela State Prison (“CEN”), and
25 proceeding pro se, has filed a civil rights Complaint (“Compl.”) pursuant to 42 U.S.C.
26 § 1983 (“Compl.”). (ECF No. 1.) Reynolds claims that nearly three dozen CEN
27 correctional and inmate appeals officials violated his First, Fourth, Eighth, and Fourteenth
28 Amendment rights after he refused to “strip out” while a cell search was conducted in his
1 housing unit on or around May 30, 2019. Reynolds was patted down, subjected to metal
2 detection, segregated during a two-day contraband surveillance watch (“CSW”), charged
3 with a “false” serious rules violation (“RVR”) for failing to provide a urine sample, and
4 then placed on a mandatory drug testing list. (See Ex. BB, ECF No. 4-3 at 9.) The officers
5 continued to cite Reynolds for refusing to submit to urine analysis, and Reynolds suffered
6 several subsequent disciplinary convictions as a result. (See Compl. at 1, 7, 14‒15, 16‒20;
7 see also Pl.’s Decl. in Supp. of Compl. (“Pl.’s Decl.”), ECF No. 5; Exs. BB, BC, BD, BE,
8 BG, BI, BM to Compl., ECF No. 4-3 at 22, 37, 50, 82, 107–08, 131–32.) Among others,
9 Reynolds alleges that he was transferred to another prison in retaliation for filing
10 complaints about the prison officers who mistreated him. (Compl. at 20, ¶ 158.) Reynolds
11 seeks declaratory and injunctive relief, including his removal from the mandatory drug
12 testing list, the restoration of custody credits and privileges forfeited due to his disciplinary
13 convictions, and both general and punitive damages. (See Compl. at 1, 23.)
14 Reynolds has not prepaid the filing fee required by 28 U.S.C. § 1914(a) to commence
15 a civil action. Instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant
16 to 28 U.S.C. § 1915(a). (ECF No. 2.)
17
18 I. MOTION TO PROCEED IFP
19 All parties instituting any civil action, suit or proceeding in a district court of the
20 United States, except when applying for writ of habeas corpus, must pay a filing fee of
21 $402.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to
22 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.
23 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.
24 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). The fee is not waived for prisoners, however.
25
26
1 Effective December 1, 2020, civil litigants must pay an additional administrative
27 fee of $52, in addition to the $350 filing fee set by statute. See 28 U.S.C. § 1914(a) (Judicial
Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)).
28
1 If granted leave to proceed IFP, the prisoners nevertheless remain obligated to pay the
2 entire fee in “increments” or “installments,” Bruce v. Samuels, 577 U.S. 82, 84 (2016);
3 Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether their
4 actions are dismissed for other reasons. See 28 U.S.C. § 1915(b)(1), (2); Taylor v.
5 Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).
6 To qualify, Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to
7 submit a “certified copy of the trust fund account statement (or institutional equivalent) for
8 . . . the 6-month period immediately preceding the filing of the complaint.” 28 U.S.C.
9 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified
10 trust account statement, the Court assesses an initial payment of 20% of (a) the average
11 monthly deposits in the account for the past six months, or (b) the average monthly balance
12 in the account for the past six months, whichever is greater, unless the prisoner has no
13 assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody
14 of the prisoner then collects subsequent payments, assessed at 20% of the preceding
15 month’s income, in any month in which his account exceeds $10, and forwards those
16 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce,
17 577 U.S. at 84.
18 In support of his IFP Motion, Reynolds has submitted a copy of his California
19 Department of Corrections and Rehabilitation (“CDCR”) Inmate Statement Report, as well
20 as a prison certificate authorized by a CEN Accounting Officer Specialist. (ECF No. 3.)
21 See 28 U.S.C. § 1915(a)(2); S.D. Cal. Civ. L.R. 3.2; Andrews, 398 F.3d at 1119. These
22 documents show Reynolds had no money deposited to his trust account during the six
23 months prior to the filing of the Complaint, and that he had no money to his credit when
24 he did file suit. (ECF No. 3 at 1, 3.) Therefore, the Court GRANTS Reynolds’s Motion
25 to Proceed IFP (ECF No. 2), and declines to assess any initial filing fee because his trust
26 account statements show he “has no means to pay it.” Bruce, 577 U.S. at 84–85. Instead,
27 the Court DIRECTS the Secretary of the CDCR to collect the entire $350 balance of the
28 filing fees required by 28 U.S.C. § 1914 and to forward those fees to the Clerk of the Court
1 pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(2). See id.
2
3 II. SCREENING
4 A. Standard of Review
5 Because Reynolds is a prisoner and is proceeding IFP, his Complaint requires a
6 preliminary review pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these
7 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion found
8 frivolous, malicious, failing to state a claim, or seeking damages from defendants who are
9 immune. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (discussing
10 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson (“Rhodes III”), 621 F.3d 1002, 1004 (9th Cir.
11 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that
12 the targets of frivolous or malicious suits need not bear the expense of responding.’”
13 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation omitted).
14 “The standard for determining whether a plaintiff has failed to state a claim upon
15 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
16 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d
17 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.
18 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard
19 applied in the context of failure to state a claim under Federal Rule of Civil Procedure
20 12(b)(6)”).
21 Federal Rules of Civil Procedure 8(a) and 12(b)(6) require a complaint to “contain
22 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
23 face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted);
24 Wilhelm, 680 F.3d at 1121. Detailed factual allegations are not required, but “[t]hreadbare
25 recitals of the elements of a cause of action, supported by mere conclusory statements, do
26 not suffice.” Iqbal, 556 U.S. at 678. And while the court “ha[s] an obligation where the
27 petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and
28 to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7
1 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may
2 not “supply essential elements of claims that were not initially pled.” Ivey v. Bd. of Regents
3 of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).2
4
5 B. Factual Allegations & Exhibits
6 Reynolds’s Complaint is dense, and his exhibits are voluminous, but he separates
7 his claims into Count 1 and Count 2. (See Compl. at 7‒15, 16‒20.)
8
9 1. Allegations Regarding Count 1
10 In Count 1, Reynolds claims RJD Capt. J. Sais, Lt. J. Rodriguez, Sgt. R. Lam, Officer
11 J. Verdugo, Sgt. D. Loop, Lt. R. Din, Sgt. J. Loshek, Officer D. Carillo, Officer M. Layvas,
12 Sgt. Buttler, and two unidentified Doe Defendants subjected him to “vindictive” searches
13 and “cruel and unusual punishment” in violation of the Fourth, Eighth, and Fourteenth
14 Amendments beginning on May 30, 2019. (Id. at 14‒15.)
15 On that day, at 9:22 a.m., Reynolds claims Verdugo arrived at his cell and announced
16
17
2 “Courts must consider the complaint in its entirety,” including “documents
18
incorporated into the complaint by reference” to be part of the pleading when determining
19 whether the plaintiff has stated a claim upon which relief may be granted. Tellabs, Inc. v.
Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Schneider v. Cal. Dep’t of Corrs.,
20
151 F.3d 1194, 1197 n.1 (9th Cir. 1998); see also Fed. R. Civ. P. 10(c) (“A copy of a
21 written instrument that is an exhibit to a pleading is a part of the pleading for all
purposes.”). Courts need not, however, “wade through exhibits to determine whether
22
cognizable claims have been stated.” Woodrow v. Cnty. of Merced, 2015 WL 164427, at
23 *4 (E.D. Cal. Jan 13, 2015); see also Stewart v. Nevada, 2011 WL 588485, at *2 (D. Nev.
Feb. 9, 2011) (“The Court will not comb through attached exhibits seeking to determine
24
whether a claim possibly could have been stated where the pleading itself does not state a
25 claim. In short, [Plaintiff] must state a claim, not merely attach exhibits.”). In this case,
Reynolds refers to specific exhibits with respect to each of his claims, and points the Court
26
to them consistently throughout his pleading. (See e.g., Compl. at 7‒19 & Exs. A‒CY
27 (ECF Nos. 4, 4-1, 4-2, 4-3 & 4-4).) Therefore, the Court will consider Reynolds’s exhibits
in conjunction with its mandatory screening of his Complaint pursuant to 28 U.S.C. §
28
1 a cell and strip search as part of a Facility C-4 Building search that had commenced two
2 days before. (Id. at 7.) When Reynolds objected and requested that Verdugo and Lam
3 provide justification for a strip search, Lam directed Verdugo to pat Reynolds down, and
4 then instructed him to walk through a metal detector. (Id. at 8.) Reynolds contends Lam
5 knew he would “medically fail to clear the device” due to an “implanted rod in his right
6 leg.” (Id.; see also Ex. G, ECF No. 4-1 at 73‒76.) When Reynolds failed to clear the
7 detector, Lam used a handheld metal detector, which Reynolds also failed to clear. (See
8 Compl. at 8‒9.) As a result, Verdugo cuffed Reynolds, escorted him to the program office,
9 and placed him in a steel cage. (Id. at 9.) Lam returned with two white jumpsuits, directed
10 Reynolds to put them on, and secured him in handcuffs, a waist chain, and leg restraints.
11 (Id.) Verdugo then escorted Reynolds to Receiving & Release (“R&R”), where Sgt. Loop
12 moved Reynolds through the “Adani Low-Dose Body Scanner” twice. (Id. at 10.) After
13 both scans were complete, Verdugo escorted Reynolds to administrative segregation (“Ad-
14 Seg”).3 (Id.)
15 At 10:00 a.m., Reynolds claims R. Din, a Lieutenant assigned to conduct Contraband
16 Surveillance Watch (“CSW”),4 removed Reynolds’s restraints, placed him inside a single
17 steel cage, and instructed him to “get naked.” (Id.) Reynolds complied, and after Din
18
19
3 Reynolds alleges he transferred to Ad-Seg “for no reason” because while he could
20
not clear any of the metal detectors, none of them “detect[ed] anything []or made any
21 determination of anything.” (See Compl. at 8‒10.) However, the CSW Placement
Authorization Form CDC 128-B, which Reynolds attaches as Exhibit P, notes that while
22
he “has a metal rod and bullet in his lower right tibia,” he was recommended and approved
23 for CSW placement by Lt. Rodriguez and Cpt. Sais on May 30, 2019 because he “continued
to refused to submit to unclothed body search,” and was unable to clear all three metal
24
detection devices, two of which “register[ed]” and “revealed an anomaly in his front pelvic
25 area.” (See ECF No. 4-1 at 138‒139 (emphasis added).)
4 “Contraband watch, also known as a ‘body cavity search,’ is a temporary
26
confinement during which a prisoner is closely monitored and his bowel movements
27 searched to determine whether he has ingested or secreted contraband in his digestive
tract.” Chappell v. Mandeville, 706 F.3d 1052, 1055 (9th Cir. 2013).
28
1 returned his clothing, Din re-secured his waist chain and handcuffs, taped his arms, waist,
2 and ankles, re-applied leg restraints, and escorted him to a CSW isolation cell that
3 “consist[ed] of nothing but a[n] iron bench, bright light, and cold temperature.” (Id. at 11.)
4 After “multiple hours,” Reynolds informed the observation officer assigned to the second
5 watch that he had to defecate. (Id.) He was then escorted to an open area, placed in another
6 single steel cage, and ordered to remove all clothing except his boxer shorts and socks.
7 (Id.) After his handcuffs and waist chain were re-secured, he was released from the cage,
8 and allowed to defecate in a portable toilet and a plastic bag. (Id.) After the assigned
9 observation officer searched his feces, Reynolds’s jumpsuit and t-shirt was returned, he
10 was re-secured and escorted back to the CSW isolation cell. (Id. at 12.)
11 During the third watch, “sometime after dinner was served at 4:00–5:00 p.m.,”
12 Reynolds informed Officer Layvas that he again needed to defecate. (Id.) CSW Sgt.
13 Buttler and Officer Layvas then “repeated the exact same” protocols as the second watch
14 before. (Id.) At “around 8:00 p.m.,” Sgt. Buttler unlocked the isolation cell, and “tossed a
15 mattress” on the floor.5 (Id.) Because his lower back, arms, wrists, and legs were irritated
16 by the restraints, Reynolds complained that he “c[ould] not sleep like this.” (Id.) Officer
17 Layvas responded: “You gotta do your best.” (Id.)
18 At approximately 8:00 a.m. the following day, May 31, 2019, the mattress was
19 removed from Reynolds’s isolation cell. (Id. at 13.) During the third watch, after dinner at
20 approximately 4:00–5:00 p.m., Reynolds again informed Officer Layvas of his need to
21 defecate. Layvas and CSW Sgt. Loshek repeated the same procedures as the day before,
22 and around 8:00 p.m., Loshek told Reynolds the CSW would be terminated. (Id.) Loshek
23 removed Reynolds from the isolation cell, placed him in an Ad-Seg shower, and “minutes
24
25 5 RVR Log No. 6857810 also indicates that at “approximately 1928 Hours” on May
30, 2019, Ad-Seg Sgt. Loshek ordered Reynolds to “provide a Urinalysis Sample (AU) for
26
Probable Cause due to being placed on . . . CSW. Reynolds refused by stating ‘I’m good
27 on all that.’” (See Ex. BB, ECF No. 4-3 at 9.) Loshek “explained to Reynolds per DOM
Section 52010.20 he would receive a CDCR 115 disciplinary write-up if he refused to
28
1 later,” returned with a small bottle “claiming [CSW] requires urine collection.” (Id.)
2 Reynolds claims he told Loshek that the urine collection was not mandatory but Reynolds
3 “urinated in the bottle anyway[,] and told Loshek ‘I’m going to sue you.’” (Id.) Loshek
4 re-secured Reynolds’s waist chain and handcuffs and released him into the custody of two
5 escort officers, including D. Carillo. (Id.) Carillo and the other unidentified officer
6 transferred Reynolds to R&R, again requiring him to pass through the Adani Low-Dose
7 Body Scanner. (Id.)
8
9 2. Allegations Regarding Count 2
10 In Count 2, Reynolds again invokes his Fourth, Eighth, and Fourteenth Amendment
11 rights and claims Sgt. Loshek, and Officers J. Barba, S. Torres, N. Preciado, and A.
12 Hernandez all issued a series of “false RVRs” against him based on his refusals to provide
13 urine samples on May 31, 2019 (Rules Violation Log (“RVR Log”) No. 6857810), August
14 15, 2019 (RVR Log No. 6890922), January 7, 2020 (RVR Log No. 6953012), February
15 27, 2020 (RVR Log No. 6972817), and July 3, 2020 (RVR Log No. 7012801). (Id. at 16‒
16 20; Exs. BB, BC, BD, BE, BG, ECF No. 4-3 at 8‒63, 81‒95; see also Pl.’s Decl., ECF No.
17 5 at 16, 18, 21, 23, 27, ¶¶ 87, 97, 112, 121, 140.) Reynolds contends these five RVRs
18 were contrived to “conceal CSW conditions” and were based on an unidentified
19 Investigative Services Unit (“ISU”) Doe Defendant’s decision to “wantonly forg[e]”
20 Reynolds’s name on a “mandatory random drug testing list.” (See Compl. at 20.)
21 Reynolds further alleges that (1) Defendants B. Perez, E. Sanchez, A. Zamora, J.
22 Ruiz, and J. Bonillas “knowingly held blind and illegal disciplinary hearings,” in response
23 to all five RVRs and entered “arbitrary guilty findings”; (2) Associate Warden and Chief
24 Disciplinary Officers Rock Johnson and J. Salcido “knowingly affirm[ed] [those] illegal
25 disciplinary hearing actions”; (3) Inmate Appeals officials L. Santana, M. Garcia, and M.
26 Juarez “perform[ed] stratagem acts to exploit exhaustion requirements,” in response to
27 every CDCR 602 grievance he filed, and “failed to correct officers’ [i]nfringement[s]”; and
28 (4) Officer A. Hernandez, Counselor J. Galindo, Chairperson S. McClain, and Committee
1 Staff Representative E. Moreno all “worked in union for [his] retaliatory transfer” during
2 an April 2, 2020 Unit Classification Committee (“UCC”) hearing. (Id.; see also Pl.’s Decl.,
3 ECF No. 5 at 16‒32, ¶¶ 87‒160.)
4
5 C. Discussion
6 “Section 1983 creates a private right of action against individuals who, acting under
7 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey,
8 263 F.3d 1070, 1074 (9th Cir. 2001). “To establish § 1983 liability, a plaintiff must show
9 both (1) deprivation of a right secured by the Constitution and laws of the United States,
10 and (2) that the deprivation was committed by a person acting under color of state law.”
11 Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).
12
13 1. Respondeat Superior / Personal Liability
14 As a preliminary matter, the Court finds that Reynolds’s Complaint fails to state any
15 plausible claim for relief against either Warden Raymond Madden or Associate Director
16 Felix M. Vasquez. “Because vicarious liability is inapplicable to . . . § 1983 suits, a
17 plaintiff must plead that each Government-official defendant, through the official’s own
18 individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676; Palmer v.
19 Sanderson, 9 F.3d 1433, 1437–38 (9th Cir. 1993) (noting there is no respondeat superior
20 liability under 42 U.S.C. § 1983). Supervisory officials like Madden and Vasquez may
21 only be held liable under § 1983 if the plaintiff alleges their “personal involvement in the
22 constitutional deprivation, or . . . a sufficient causal connection between the supervisor’s
23 wrongful conduct and the constitutional violation.” Keates v. Koile, 883 F.3d 1228, 1242‒
24 43 (9th Cir. 2018); Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011). In other words, “a
25 supervisor is liable for the acts of his subordinates ‘if the supervisor participated in or
26 directed the violations, or knew of the violations of subordinates and failed to act to prevent
27 them.’” Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009) (citations omitted).
28
1 Reynolds merely includes Madden and Vasquez as parties in the caption of his
2 pleading. (See Compl. at 1.) He fails to otherwise identify either of these parties, include
3 any facts with respect to them, or describe even cursorily what role either of them played
4 with respect to his strip searches, contraband watch, RVRs, inmate appeals, or his UCC
5 classification hearing. While Federal Rule of Civil Procedure 8 “does not require ‘detailed
6 factual allegations,’” it “demands more than an unadorned, the-defendant-unlawfully-
7 harmed-me accusation.” Iqbal, 556 U.S. at 678 (citation omitted). In order “[t]o survive
8 a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to
9 ‘state a claim for relief that is plausible on its face.’” Iqbal, 662 U.S. at 678 (citations
10 omitted). But nothing in Reynolds’s Complaint plausibly suggests Madden or Vasquez
11 “through his own individual actions, . . . violated the Constitution.” Iqbal, 556 at 676; see
12 also Jones v. Cmty. Redev. Agency of City of L.A., 733 F.2d 646, 649 (9th Cir. 1984) (even
13 pro se plaintiff must “allege with at least some degree of particularity overt acts which
14 defendants engaged in” in order to state a claim). Therefore, the Court sua sponte dismisses
15 any purported claims against Madden and Vasquez pursuant to 28 U.S.C.
16 § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Watison 668 F.3d at 1112; Wilhelm, 680 F.3d
17 at 1121.
18
19 2. Search, CSW Placement & Conditions Claims—“Count 1”
20 With respect to his May 31, 2019 strip search, CSW placement, and the conditions
21 of his two-day CSW isolation, the Court finds that Reynolds has failed to allege any
22 plausible violation of his Fourth, Eighth, or Fourteenth Amendment rights.
23
24 a. The Fourth Amendment
25 “The Fourth Amendment proscription against unreasonable searches does not apply
26 within the confines of the prison cell,” Hudson v. Palmer, 468 U.S. 517, 526 (1984), and
27 courts have recognized only limited rights to bodily privacy in prison. See Bull v. City &
28 Cnty. of San Francisco, 595 F.3d 964, 974‒75 (9th Cir. 2010); Mitchenfelder v. Sumner,
1 860 F.2d 328, 332 (9th Cir. 1988). Routine visual strip searches do not violate the Fourth
2 Amendment. See Hudson, 468 U.S. at 529 (“[W]holly random searches are essential to the
3 effective security of penal institutions.”); Florence v. Bd. of Chosen Freeholders of Cnty.
4 of Burlington, 566 U.S. 318, 327–28 (2012) (“[D]eterring the possession of contraband
5 depends in part on the ability to conduct searches without predictable exceptions.”);
6 Michenfelder, 860 F.2d at 333‒34 (upholding routine visual body cavity searches for
7 contraband or weapons); Nunez v. Duncan, 591 F.3d 1217, 1227–28 (9th Cir. 2010)
8 (finding that a random strip search on a federal prisoner for contraband did not violate the
9 Fourth Amendment because “controlling contraband within a prison is a legitimate
10 penological interest” and the regulation allowing visual strip searches was reasonably
11 related to that interest). Here, Reynolds claims Officer Verdugo requested that he submit
12 to a cell and visual strip search on May 31, 2019, and that he refused to submit to “strip
13 out” without first being provided some justification. (See Compl. at 7‒9; Pl.’s Decl. at 1‒
14 5, ¶¶ 1‒22.) Reynolds admits the searches were being conducted throughout his entire
15 building facility over the course of two days in late May 2019. (See Compl. at 7, ¶¶ 25–
16 32.) As alleged, the search on Reynolds was a part of a routine visual strip search.
17 Therefore, the search does not violate the Fourth Amendment.
18 Once Reynolds refused to submit to a visual body cavity search, however, he claims
19 that Sgt. Lam conducted a pat-down over his gym and boxer shorts and then ordered him
20 to clear metal detection. (See Compl. at 8‒9.) The manner in which a bodily search is
21 conducted may become so unreasonable that it can violate the Fourth Amendment, but
22 Reynolds fails to allege facts to plausibly suggest that Lam patted him down or subjected
23 him to any form of metal detection that was “excessive, vindictive, harassing, or unrelated
24 to any legitimate penological purpose.” Michenfelder, 860 F.2d at 332‒33; see also
25 Hudson, 468 U.S. at 528 (“The uncertainty that attends random searches of cells renders
26 these searches perhaps the most effective weapon of the prison administrator in the constant
27 fight against the proliferation of knives and guns, illicit drugs, and other contraband.”).
28 Thompson v. Souza, 111 F.3d 694, 700 (9th Cir. 1997) (upholding visual strip searches
1 conducted outside prisoner’s cell as reasonably related to the legitimate penological interest
2 in keeping drugs out of the prison); cf. Cates v. Stroud, 976 F.3d 972, 979–80 (9th Cir.
3 2020) (upholding routine suspicion-less pat-down searches and metal detector screenings
4 as prerequisite for visitation privileges on Fourth Amendment grounds given “weighty
5 institutional safety concerns” and because “[s]uch searches are ‘relatively inoffensive’ and
6 ‘less intrusive than alternative methods.’” (citing McMorris v. Alioto, 567 F.2d 897, 900‒
7 01 (9th Cir. 1978)).6
8
9 b. The Fourteenth Amendment
10 Reynolds further claims his placement on CSW caused a “liberty interference” and
11 the two days he spent subject to restrictive CSW isolation resulted in an “atypical hardship”
12 in violation of his Fourteenth Amendment rights. (See Compl. at 14‒15.) The Fourteenth
13 Amendment provides that “[n]o state shall . . . deprive any person of life, liberty, or
14 property, without due process of law.” U.S. Const. amend. XIV, § 1. Liberty interests
15 may arise from the Due Process Clause or from state law. See Hewitt v. Helms, 459 U.S.
16 460, 466‒68 (1983).
17
18 i. Liberty Interests Arising from the Due Process Clause
19 “[L]awfully incarcerated persons retain only a narrow range of protected liberty
20 interests” under the Fourteenth Amendment itself. Id. at 467. Thus, “[a]s long as the
21 conditions or degree of confinement to which the prisoner is subjected is within the
22
23
6 Reynolds does allege that Sgt. Lam knew he would “medically fail to clear” metal
24 detection due to an “implanted rod in [his] right leg,” and Lam’s “direct observations
25 . . . during meal and yard releases.” (See Compl. at 8.) However, according to the May
30, 2019 CSW Placement Authorization, an exhibit Reynolds incorporates into his
26
pleading by reference, both Lt. Rodriguez and Cpt. Sais acknowledged that Reynolds “has
27 a metal rod and bullet in his lower right tibia,” but nevertheless authorized CSW placement
because “the metal detector and hand held wand . . . register[ed] around [his] pelvic area.”
28
1 sentence imposed upon him and is not otherwise violative of the Constitution, the Due
2 Process Clause does not in itself subject an inmate’s treatment by prison authorities to
3 judicial oversight.” Montanye v. Haymes, 427 U.S. 236, 242 (1976). Transfer to less
4 amenable quarters or segregation for non-punitive reasons have been held to be “ordinarily
5 contemplated by a prison sentence.” Hewitt, 459 U.S. at 468; see also Wilkinson v. Austin,
6 545 U.S. 209, 221 (2005) (“The Constitution itself does not give rise to a liberty interest in
7 avoiding transfer to more adverse conditions of confinement”). Indeed, the Due Process
8 Clause does not protect against all changes in conditions of confinement even where they
9 “hav[e] a substantial adverse impact on the prisoner involved.” Meachum v. Fano, 427
10 U.S. 215, 224 (1976).
11 Based on these principles, “[o]nly the most extreme changes in the conditions of
12 confinement,” like an involuntary commitment to a mental institution, or the forced
13 administration of psychotropic drugs, have been held to directly invoke the protections of
14 the Due Process Clause. See Chappell v. Mandeville, 706 F.3d 1052, 1063 (9th Cir. 2013)
15 (citing Vitek v. Jones, 445 U.S. 480, 493‒94 (1980); Washington v. Harper, 494 U.S. 210,
16 221‒22 (1990)). A “temporary contraband watch does not rise to this level.” Chappell,
17 706 F.3d at 1063 (holding that a California prisoner placed on contraband watch for six
18 days could not claim a liberty interest under the Due Process Clause of the Fourteenth
19 Amendment); see also Davis v. Andrade, 2019 WL 4879102, at *3 (E.D. Cal. Oct. 3, 2019)
20 (finding prisoner placed on contraband watch after a body scan failed to state a “cognizable
21 due process claim” sufficient to survive initial screening pursuant to 28 U.S.C. § 1915A).
22 Here, Reynolds was placed on CSW for only two days. Under Chappell, the Court does
23 not find that Reynolds’s allegations invoke a constitutional liberty interest arising from the
24 Due Process Clause of the Fourteenth Amendment.
25
26 ii. Liberty Interests Arising from State Law
27 “States may under certain circumstances create liberty interests which are protected
28 by the Due Process Clause.” Sandin v. Conner, 515 U.S. 472, 483–84 (1995). “[T]hese
1 interests will be generally limited to freedom from restraint which . . . imposes atypical and
2 significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id.
3 at 484; see Wilkinson, 545 U.S. at 223 (“After Sandin, it is clear that the touchstone of the
4 inquiry into the existence of a protected, state-created liberty interest in avoiding restrictive
5 conditions of confinement is not the language of regulations regarding those conditions but
6 the nature of those conditions themselves ‘in relation to the ordinary incidents of prison
7 life.’” (quoting Sandin, 515 U.S. at 484)).
8 “There is no single standard for determining whether a prison hardship is atypical
9 and significant.” Chappell, 706 F.3d at 1064. Even deprivations that are “concededly
10 punitive” are not sufficient by themselves. Sandin, 515 U.S. at 485. Instead, the analysis
11 is “context dependent” and “requires ‘case by case, fact by fact consideration.’” Chappell,
12 706 F.3d at 1064 (quoting Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996); Ramirez v.
13 Galaza, 334 F.3d 850, 861 (9th Cir. 2003)). In making this determination, courts are
14 guided by Sandin to inquire: “1) whether the challenged condition mirrored those
15 conditions imposed upon inmates in administrative segregation and protective custody, and
16 thus comported with the prison’s discretionary authority; 2) the duration of the condition,
17 and the degree of restraint imposed; and 3) whether the state’s action will invariably affect
18 the duration of the prisoner’s sentence.” Ramirez, 334 F.3d at 861 (quoting Sandin, 515
19 U.S. at 486–87). In sum, to invoke a state-created liberty interest, the nature of the
20 prisoner’s hardship must be alleged to “present a dramatic departure from the basic
21 conditions of [his] . . . sentence.” Id.
22 Courts in this district have held that a temporary placement in CSW up to three days
23 pursuant to California law is not enough to trigger a hardship that is “atypical and
24 significant.” See Meraz v. Reppond, 2009 WL 723841, at *2 (N.D. Cal. Mar. 18, 2009)
25 (dismissing a due process claim in a § 1915A screening order where the inmate alleged
26 that he was placed in a contraband watch cell for three days because such placement did
27 not constitute an atypical and significant hardship); see also Price v. Sutton, 2020 WL
28 4922502, at *5 (E.D. Cal. Aug. 21, 2020) (dismissing a due process claim in a § 1915A
1 screening order where the inmate alleged that he was placed in a temporary contraband
2 watch cell). But cf. Romo v. Cate, No. 2:11-CV-2898 DAD P, 2014 WL 4276071, at *12
3 (E.D. Cal. Aug. 29, 2014) (finding that it would not be implausible for the alleged eight-
4 day placement in CSW to constitute an atypical and significant hardship, given the related
5 finding that “the operative complaint contain[ed] a plausible basis for an Eighth
6 Amendment claim”), adopted as modified, No. 2:11-CV-2898 GEB DAD, 2014 WL
7 4929461 (E.D. Cal. Sept. 30, 2014). Here, Reynolds alleges that he was placed in CSW
8 for two days. As will be discussed in detail below, the Court does not find that his
9 Complaint plausibly states a violation of the Eighth Amendment. See infra Part II.C.2.c.
10 Therefore, the Complaint does not plausibly state that Reynolds endured an atypical and
11 significant punishment by being placed in CSW, and the Court finds no constitutional
12 liberty interest arising from California law.
13
14 c. The Eighth Amendment
15 Reynolds also claims that his CSW placement constituted “cruel and unusual
16 punishment.” (See Compl. at 15.) Specifically, Reynolds challenges the conditions of his
17 isolation, in “limited apparel [and] in restraints,” which deprived him of sleep and caused
18 him to suffer “muscle aches” throughout the two days he was confined there. (Id.) The
19 Eighth Amendment prohibits the imposition of cruel and unusual punishments and
20 “embodies ‘broad and idealistic concepts of dignity, civilized standards, humanity and
21 decency.’” Estelle v. Gamble, 429 U.S. 97, 102 (1976) (citation omitted). In order to state
22 an Eighth Amendment claim however, Reynolds must satisfy both the objective and
23 subjective components of a two-part test. See Wilson v. Seiter, 501 U.S. 294, 298–99
24 (1991); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002). First, he must allege that
25 Defendants deprived him of the “minimal civilized measure of life’s necessities.” Frost v.
26 Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998) (quoting Wilson, 501 U.S. at 304). When
27 determining whether an alleged deprivation is objectively serious enough to support an
28 Eighth Amendment claim, the court must consider the circumstances, nature, and duration
1 of the deprivation. Johnson v. Lewis, 217 F.3d 726, 731–32 (9th Cir. 2000). Second,
2 Reynolds must allege facts sufficient to plausibly show that each Defendant he seeks to
3 hold liable had a “sufficiently culpable mind.” Wilson, 501 U.S. at 297. “In prison-
4 conditions cases that state of mind is one of ‘deliberate indifference’ to inmate health or
5 safety.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citation omitted). That is, that the
6 official must “kn[ow] of and disregard[] an excessive risk to inmate health or safety[.]” Id.
7 at 837.
8 District courts considering Eighth Amendment challenges to CSW placements and
9 other contraband surveillance conditions have consistently found no Eighth Amendment
10 violations—either because the deprivations were not “sufficiently serious,” or because of
11 the lack of allegations that the defendant officials acted with deliberate indifference. See,
12 e.g., Centeno v. Wilson, 2011 WL 836747, at *3 (E.D. Cal. Mar. 4, 2011) (finding no Eighth
13 Amendment violation when prisoner was placed on contraband watch and forced to sleep
14 on a cold floor without a mattress, blanket, or the ability to shower for seven days), aff’d,
15 479 F. App’x 101 (9th Cir. 2012); Diaz v. Cate, 2013 WL 4479262, at *3–4 (N.D. Cal.
16 Aug. 20, 2013) (ruling that a five-day confinement in a dry cell with a portable toilet and
17 buckets for defecating did not violate the Eighth Amendment, even though the plaintiff
18 was restrained, not allowed to shower, and was forced to eat and sleep on the floor without
19 a blanket); Frye, 2012 WL 951318, at *1, 6 (finding no Eighth Amendment violation where
20 the prisoner was confined nearly naked in a dirty cell for two days with no toilet access but
21 only a bucket to relieve himself, constant lighting, and no toilet paper or soap and water);
22 Hefa v. Hanratty, 2021 WL 965451, at *1 (W.D. Wash. Jan. 13, 2021) (dismissing Eighth
23 Amendment challenge to “dry cell” contraband confinement conditions where prisoner was
24 strip-searched, required to provide a urine sample, forced to wear a full body suit with his
25 ankles and wrists zip-tied and taped, and held in a holding cell with no toilet or sink under
26 surveillance for “84 hours or 3 normal bowel movements, whichever occurred first”),
27 adopted, 2021 WL 963480 (W.D. Wash. Mar. 15, 2021). But cf. Harris v. Lappin, 2009
28 WL 789756, at *10 (C.D. Cal. Mar. 19, 2009) (finding a viable Eighth Amendment claim
1 for 11-day dry cell confinement in filthy floor covered with other inmates’ waste and bodily
2 fluids).
3 Here, Reynolds alleges that during his CSW placement, he was sent to a steel cage
4 and was made to wear two white jumpsuits while secured in handcuffs, a waist chain, and
5 leg restraints. (Compl. at 9.) After being made to go through the “Adani Low-Dose Body
6 Scanner” twice, Reynolds alleges he was placed in Ad-Seg, inside a single steel cage, then
7 sent to a cold isolation cell with only an iron bench with bright light. (Id. at 10–11.) When
8 Reynolds had to defecate, the officers made him wear nothing but his boxer shorts and
9 socks, required him to use the portable toilet under observation, and inspected his
10 excrement for contraband. (Id. at 11–13.) At night the officers “tossed a mattress” on the
11 floor of the isolation cell, and Reynolds could not sleep because his lower back, arms,
12 wrists, and legs were irritated by the restraints. (Id. at 12.)
13 As pleaded, the Court finds that Reynolds’s CSW conditions claims, while
14 unpleasant and humiliating, are less onerous and shorter in duration that those endured by
15 the prisoners in Chappell, Centeno, Diaz, Frye and Hefa. As such, Reynolds’s allegations
16 are not enough to meet the objective requirements of an Eighth Amendment claim. See
17 Frost, 152 F.3d at 1128; Wilson, 501 U.S. at 304; Meraz, 2009 WL 723841, at *2 (sua
18 sponte dismissing pursuant to 28 U.S.C. § 1915A allegations of prisoner who was held in
19 a “small holding cell wearing only boxer shorts,” “observed at all times,” and who “had
20 his excrement inspected for contraband” for a period of three days were “not sufficiently
21 serious enough” to meet the Eighth Amendment’s objective pleading requirements).
22 Moreover, Reynolds fails to allege that any of Defendants he identifies as having
23 participated in his CSW placement (Din, Buttler, Loshek, or Layvas) acted with deliberate
24 indifference to a serious risk of harm to either his health or his safety. See Farmer, 511
25 U.S. at 834; see also Price v. Sutton, 2020 WL 4922502, at *5 (E.D. Cal. Aug. 21, 2020)
26 (finding prisoner’s allegations of having been “subjected to a contraband watch under
27 unsanitary conditions” and in the presence of a female guard subject to sua sponte dismissal
28 pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A because “[w]hile being subjected to a
1 contraband search may be considered a serious deprivation in itself, Plaintiff [did] not
2 alleged facts showing that any of the Defendants had a sufficiently culpable state of mind
3 for an Eighth Amendment violation.”).
4 In sum, the Court concludes that Reynolds’s allegations about his placement in the
5 CSW do not state a plausible claim for a violation of the Eighth Amendment.
6
7 3. RVRs & Inmate Appeals Claims—“Count 2”
8 With respect to his claims in Count 2—specifically, that Defendants Loshek, Barba,
9 Torres, Preciado, and Hernandez “filed false RVRs” against him; that an unidentified ISU
10 Lieutenant “forged [his] name on a mandatory drug testing list”; that Defendants Perez,
11 Sanchez, Zamora, Ruiz, and Bonillas “knowingly held blind disciplinary hearings,” and
12 rendered “arbitrary guilty findings;” that Defendants Johnson and Salcido “knowingly
13 affirm[ed] [these] illegal disciplinary hearing actions”; and that Defendants Santana,
14 Garcia, and Juarez “intentionally failed to correct officers[’] infringements” in response to
15 Reynolds’s multiple inmate grievances and appeals, (see Compl. at 20; supra Part II.B.2)—
16 the Court finds that Reynolds has failed to allege any plausible violation of his Fourth,
17 Eighth, or Fourteenth Amendment rights.
18
19 a. The Fourth Amendment
20 While Reynolds mentions the Fourth Amendment in his Count 2 claims, none of the
21 factual allegations he makes against any of these Defendants plausibly suggests or would
22 support any Fourth Amendment violation. See Hudson, 468 U.S. at 525 (“The applicability
23 of the Fourth Amendment turns on whether ‘the person invoking its protection can claim a
24 ‘justifiable,’ a ‘reasonable,’ or a ‘legitimate expectation of privacy’ that has been invaded
25 by government action.”) (quoting Smith v. Maryland, 442 U.S. 735, 740 (1979)). Thus,
26 the Court dismisses any Fourth Amendment claims raised as a part of Count 2.
27 //
28 //
1 b. The Fourteenth Amendment
2 Reynolds has no Fourteenth Amendment liberty interest in not being falsely accused
3 of prison rules violations. See Rios v. Paramo, 2016 WL 8731085, at *35 (S.D. Cal. July
4 15, 2016), adopted, 2016 WL 4709063 (S.D. Cal. Sept. 9, 2016); see also Solomon v.
5 Meyer, 2014 WL 294576, at *2 (N.D. Cal. Jan. 27, 2014); Johnson v. Felker, 2013 WL
6 6243280, at *6 (E.D. Cal. Dec. 3, 2013) (“Prisoners have no constitutionally guaranteed
7 right to be free from false accusations of misconduct, so the mere falsification of a [rules
8 violation] report does not give rise to a claim under section 1983.”). Thus, insofar as
9 Reynolds claims that Defendants Loshek, Barba, Torres, Preciado, and Hernandez “filed
10 false RVRs”7 accusing him of refusing to submit urine samples in violation of California
11 Department of Corrections rules,8 or that Defendant ISI Lt. Doe “forged” his name on a
12 mandatory urine testing list after he was found guilty of refusing to provide a UA sample
13 “for probable cause due to his being placed on [CSW]” on May 30, 2019, as a result of his
14 disciplinary conviction pursuant to RVR Log No. 6857810,9 he fails to state a plausible
15 claim for relief.10
16
17 7 The following appears to be the relevant RVRs: Pl.’s Ex. BB (RVR Log No.
6857810), ECF No. 4-3 at 8‒21; Ex. BC (RVR Log. No. 6890922), ECF No. 4-3 at 22‒35;
18
Ex. BD (RVR Log No. 6953012), ECF No. 4-3 at 36‒49; Ex. BE (RVR Log No. 6972817),
19 ECF No. 4-3 at 50‒63; Ex. BG (RVR No. 7012801), ECF No. 4-3 at 81‒95).
8 “Inmates who refuse or are unable to provide a urine sample shall be subject to
20
disciplinary action in accordance with [Cal. Code Regs., tit. 15 §] 3323(h)(5).” Cal. Dept.
21 of Corr. & Rehab., Operations Manual (“DOM”), § 52010.20; see also Pl.’s Ex. AG, ECF
No. 4-2 at 27.
22
9 See Pl.’s Ex. BB, ECF No. 4-3 at 9, 18.
23 10 The Court also notes that, according to Reynolds’s own exhibit, Reynolds’s
Disciplinary Hearing Disposition Results in RVR Log No. 6857810, dated June 29, 2019,
24
include as part of his sanction a referral to a Unit Classification Committee (“UCC”) for
25 substance abuse treatment, and an order “to provide a mandatory random drug test [MRDT]
within the next 90 day period.” (See Pl.’s Ex. BB, ECF No. 4-3 at 18.) The same exhibit
26
memorializes that the Senior Hearing Officer “advised [Reynolds] [that] a refusal to submit
27 to ur[i]nalysis will result in an additional Rules Violation.” (Id.)
Another exhibit submitted by Reynolds shows that under the relevant California rule,
28
1 c. The Eighth Amendment
2 Reynolds’s Eighth Amendment claims challenging the allegedly false RVRs and the
3 attendant disciplinary hearings, convictions, and sanctions fare no better. (See Compl. at
4 20.) “After incarceration, only the unnecessary and wanton infliction of pain . . . constitutes
5 cruel and unusual punishment forbidden by the Eighth Amendment.” Whitley v. Albers,
6 475 U.S. 312, 319 (1986) (quotation omitted). The Eighth Amendment protects prisoners
7 not only from inhumane methods of punishment but also from inhumane conditions of
8 confinement. See Farmer, 511 U.S. at 832; see also Rhodes v. Chapman (“Rhodes I”), 452
9 U.S. 337, 347 (1981). Prison officials must ensure prisoners are not deprived of adequate
10 shelter, food, clothing, sanitation, medical care, or personal safety, Johnson v. Lewis, 217
11 F.3d 726, 731 (9th Cir. 2000) (quotation marks and citations omitted), but “not every injury
12 that a prisoner sustains while in prison represents a constitutional violation.” See Morgan
13 v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Instead, a prisoner claiming an Eighth
14 Amendment violation must allege sufficient facts to plausibly state: (1) the deprivation he
15 suffered was “objectively, sufficiently serious;” and (2) that prison officials acted with
16 deliberate indifference to a serious risk to his health or safety in allowing that deprivation
17 to take place. Farmer, 511 U.S. at 834; Thomas v. Ponder, 611 F.3d 1144, 1150‒51 (9th
18 Cir. 2010).
19 Nothing in Reynolds’s Complaint, Declaration, or exhibits plausibly suggest that
20 any Defendant’s actions constituted “objectively, sufficiently serious” deprivations under
21 the Eighth Amendment. Farmer, 511 U.S. at 834. Post-conviction “[c]onditions must not
22 involve the wanton and unnecessary infliction of pain, nor may they be grossly
23 disproportionate to the severity of the crime warranting imprisonment.” Rhodes I, 452 U.S.
24 at 347. But to “the extent that . . . [the] conditions are [merely] restrictive [or] even harsh,
25
26
or introduction of controlled substances, drugs, or drug paraphernalia; or refusal to submit
27 to a test for controlled substances or drugs [would] be placed on the institution’s MRDT
list.” Cal. Dept. of Corr. & Rehab., Operations Manual (“DOM”), § 52010.20 (emphasis
28
1 they are part of the penalty that criminal offenders pay for their offenses against society,”
2 and do not offend Eighth Amendment principals. Id. “[O]nly minimal life necessities”
3 like food, clothing, shelter, medical care, and safety are protected by the Eighth
4 Amendment. Puckett v. Houston, 2017 WL 2619121, at *3 (E.D. Cal. June 16, 2017). A
5 prison official’s decision to charge an inmate with disciplinary violations based on his
6 refusal to submit to urinalysis testing as authorized by Cal. Code Regs., tit. 15
7 § 3323(h)(5)11 simply does not involve nor deprive him of a constitutionally protected basic
8 human need and thus does not rise to the level of cruel and unusual punishment. See, e.g.,
9 Collins v. Williams, 536 F. App’x 706, 707 (9th Cir. 2013) (finding that “neither the
10 issuance of disciplinary charges of which Collins was later acquitted—nor his placement
11 in administrative, protective, and disciplinary segregation for almost six months—
12 constituted cruel and unusual punishment).
13 Nor has Reynolds alleged facts sufficient to plausibly state that any Defendant
14 “kn[ew] of and disregard[ed] an excessive risk to [his] health or safety” either by issuing
15 RVRs which charged him with refusing to provide urine samples, or by finding him guilty
16 as a result of his refusals. See Farmer, 511 U.S. at 837; see also Ivy v. Wingo, 2020 WL
17 5709278, at *8 (S.D. Cal. Sept. 24, 2020) (sua sponte dismissing prisoner’s conclusory
18 challenge to disciplinary conviction as “cruel and unusual punishment” pursuant to 28
19 U.S.C. §§ 1915(e)(2) & 1915A).
20 Reynolds also fails to state any plausible claim for relief against Defendants Santana,
21 Garcia, or Juarez—who are all inmate appeals officials that responded to at least ten CDCR
22 602 Inmate Appeals and grievances Reynolds filed in response to each RVR filed against
23 him after he refused to submit urine samples on May 31, 2019, August 15, 2019, January
24
25
26
27 11 Cal. Code Regs., tit. 15 § 3323(h)(5) sanctions a 0–30 day “credit forfeiture” for a
“Division F Offense” based on an inmate’s “[r]efus[al] to provide a urine specimen for the
28
1 7, 2020, February 20, 2020, and July 3, 2020, and after he was approved for transfer
2 during his UCC Annual Review Hearing on April 2, 2020.13 Specifically, Reynolds faults
3 these inmate grievance and appeals officials for “failing to forward” his many appeals to
4 “the hiring authority for review,” for failing to return his appeals, for “intentionally
5 extend[ing] the due date[s],” and for “intentionally fail[ing] to correct officers
6 infringements.” (See Compl. at 16‒20.)
7 But simply “[r]uling against a prisoner on an administrative complaint does not
8 cause or contribute to the violation.” Ellington v. Clark, 2010 WL 3001427, at *2 (E.D.
9 Cal. Jul. 29, 2010) (quoting George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007)). A prison
10 official’s allegedly improper processing of grievances or appeals, without more, does not
11 provide an independent basis for a constitutional violation. See Ramirez, 334 F.3d at 860
12 (prisoners do not have a “separate constitutional entitlement to a specific prison grievance
13 procedure.”) (citation omitted); Thomas v. Matevousian, 2018 WL 1452261 at *4 (E.D.
14 Cal. Mar. 21, 2018) (“Actions in reviewing a prisoner’s administrative appeal generally
15 cannot serve as the basis for liability in a section 1983 action.”); Phillipi v. Patterson, 2014
16 WL 11774836 at *3 (E.D. Cal. Aug. 1, 2014) (“[D]enial of an inmate appeal . . . does not
17 state a cognizable constitutional violation”), aff’d, 599 F. App’x 288 (9th Cir. 2015); Davis
18 v. Penzone, 2017 WL 8792541, at *5 (D. Ariz. July 25, 2017) (prison administrators and
19 other supervisors are not per se liable for an alleged violation of a prisoner’s federal
20 constitutional rights simply by failing to grant his “grievances or grievance appeals”).
21
22
12 See Compl. at 16‒19 & Ex. BI, ECF No. 4-3 at 98-110 (CDCR 602 Log No. 19-
23 1297); Ex. BM, ECF No. 4-3 at 117‒132 (CDCR 602 Log No. 19-1418); Ex. BP, ECF No.
4-3 at 138‒157 (CDCR 602 Log. No. 19-1875); Ex. BZ, ECF No. 4-3 at 180‒190 (CDCR
24
602 Log No. 20-0332); Ex. CA, ECF No. 4-4 at 2‒19 (CDCR 602 Log. No. 20-0618); Ex.
25 CF, ECF No. 4-4 at 50‒58 (CDCR 602 Log No. 5277); Ex. CM, ECF No. 4-4 at 77‒83;
Ex. CO, ECF No. 4-4 at 90‒97 & Ex. CS, ECF No. 4-4 at 110‒116 (CDCR 602 Log No.
26
23290); Ex. CR, ECF No. 4-4 at 104‒109 & Ex. CU, ECF No. 4-4 at 118‒123 (CDCR 602
27 Log No. 33421).
13 See Ex. CD, ECF No. 4-4 at 27‒42 (CDCR 602 Log. No. 20-0765); Ex. CI, ECF
28
1 Because Reynolds alleges that Defendants Santana, Garcia, and Juarez’s only
2 involvement was their failure to intervene or correct the other Defendants’ alleged
3 violations of his rights under the Fourth, Fourteenth, and Eighth Amendments, he fails to
4 state a claim against those Defendants. See 28 U.S.C. §§ 1915(e)(2), 1915A(b); Iqbal, 556
5 U.S. at 677 (“Absent vicarious liability, each Government official, his or her title
6 notwithstanding, is only liable for his or her own misconduct.”); Ivy, 2020 WL 5709278,
7 at *7 (dismissing prisoner’s claims against appeals officials alleged to have “failed to
8 correct” other official’s “errors” via CDCR 602 inmate appeal procedures pursuant to 28
9 U.S.C. § 1915(e)(2) and § 1915A); Moreno v. Ryan, 2017 WL 2214703, at *3 (D. Ariz.
10 May 19, 2017) (holding that the official’s failure to intervene on the prisoner’s behalf to
11 remedy the alleged violation of the prisoner’s constitutional right did not by itself amount
12 to an independent or freestanding constitutional violation for purposes of § 1983).
13
14 4. Retaliatory Transfer Claims—“Count 2”
15 Finally, Reynolds contends that Defendants McClain, Galindo, Hernandez or
16 Fernandez,14 and Moreno “worked in union for [a] retaliatory transfer.” (See Compl. at 20.)
17 Reynolds makes few factual allegations with respect to this claim in his Complaint, but in
18 his Declaration, he claims UCC Chairperson McClain “made an unconstitutional decision”
19 during his April 2, 2020 annual classification hearing by referring him to a “CSR
20 Committee Staff Representative for pending transfer to Salinas Valley State Prison
21 (“SVSP”) under retaliatory means due to cause for action and appeals filed.” (See Compl.
22 at 18; Pl.’s Decl., ECF No. 5 at 24.)
23
24
14 Reynolds also alleges either Correctional Officer A. Hernandez or A. Fernandez
25 “worked in union” with McClain, Galindo, and Moreno by “vicariously attempt[ing] to
move [him] to Facility B Yard” on May 16, 2020. (See Compl. at 18, 20; cf. Pl.’s Decl.,
26
ECF No. 5 at 25‒26.) But he does not further explain what this had to do with his April 2,
27 2020 UCC hearing, his approval for transfer to SVSP. He does not explain how moving
him to Facility B Yard was adverse, related to any protected conduct, or constituted a
28
1 Reynolds also refers to several exhibits in support of this claim: (1) a Notice of
2 Classification Hearing issued by Galindo on April 1, 2020, informing him that his case
3 would be “reviewed for possible involuntary and non-adverse transfer to an alternate Level
4 IV (270) Institution,” an April 2, 2020 Classification Committee record identifying
5 McClain as UCC Chair and Galindo as Recorder, and an April 7, 2020 Auditor Action
6 endorsed by CSR Moreno, see Pl.’s Ex. BF, ECF No. 4-3 at 65‒70; (2) a CDCR 22 Inmate
7 Parolee Request dated April 5, 2020, see Ex. CB, ECF No. 4-4 at 21; and (3) his CDCR
8 602 Log No. 20-0765, dated April 16, 2020, including both First and Second Level Appeal
9 Responses. (See Ex. CD, ECF No. 4-4 at 27‒42.) These exhibits, which Reynolds
10 incorporates by reference in his Complaint and his Declaration,15 reveal that he appeared
11 on April 2, 2020, before McClain and Galindo for a “FAC C UCC” Annual Review hearing
12 pursuant to Cal. Code Regs., tit. 15 § 3375(e)(f)(1), and March 27, 2020 Memorandum
13 governing the conversion of Centinela State Prison Facility B Level IV General Population
14 Yard to a Level III General Population Yard.16 (See Ex. CD, ECF No. 4-4 at 37‒38.) At
15 this UCC hearing, Reynolds’s custody level classification score was “increased from 93 to
16 105 points based on his work and disciplinary history from 04/12/19 to 4/11/20,” including
17 four of the RVRs issued against him. According to the UCC record, Reynolds’s new
18 custody classification score was “consistent with Level IV Placement,” and he was
19 determined to “meet the criteria for transfer” to SVSP “due to the . . . conversion of CEN
20
21 15 See Compl. at 18; Pl.’s Decl., ECF No. 5 at 24‒26, 29, 30.
16 Reynolds’s UCC record, as well as the Institutional Level Inmate Appeal
22
Response to CDCR 602 Log No. 20-0765, in which Reynolds challenged the UCC’s April
23 2, 2020 findings and transfer endorsement, both state that the “conversion [of CEN’s
Facility B] from a Level IV (270) General Population (GP) Facility to a Level III GP
24
Facility,” was “in the process” and designed to “assist the . . . CDCR in increasing the
25 number of Level III GP beds, which w[ould] in turn reduce the current Level III GP
overcrowding percentages,” “allow for increased Reception Center (RC) inmate
26
movement,” “mitigate potential backlogs in the RC, which impede CDCR’s ability to
27 accommodate weekly county intake,” and “assist in efforts to operate within Level III
desired crowding standard as outlined in the Future of California Corrections Blueprint.”
28
1 Facility B.” (See Pl.’s Ex. BF, ECF No. 4-3 at 67.)
2 Prisoners have no constitutional right to incarceration in a particular institution. See
3 Olim v. Wakinekona, 461 U.S. 238, 244–48 (1983) (“Even when, as here, the [prison]
4 transfer involves long distances and an ocean crossing [from Hawaii to California], the
5 confinement remains within constitutional limits.”); Meachum v. Fano, 427 U.S. 215, 224
6 (1976). A prisoner’s liberty interests are sufficiently extinguished by his conviction that
7 the state may generally confine or transfer him to any of its institutions, to prisons in
8 another state, privately-run facilities or to federal prisons, without offending the
9 Constitution. See Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir. 1985) (holding that
10 intrastate prison transfer does not implicate Due Process Clause).
11 However, “[p]risoners [do] have a First Amendment right to file grievances against
12 prison officials and to be free from retaliation for doing so.” Watison, 668 F.3d at 1114
13 (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). “Within the prison context,
14 a viable claim of First Amendment retaliation entails five basic elements: (1) an assertion
15 that a state actor took some adverse action against an inmate (2) because of (3) that
16 prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his
17 First Amendment rights, and (5) the action did not reasonably advance a legitimate
18 correctional goal.” Rhodes v. Robinson (“Rhodes II”), 408 F.3d 559, 567–68 (9th Cir.
19 2005).
20 As pleaded, Reynolds adequately alleges that he filed multiple inmate grievances
21 related to his CSW and subsequent RVRs. See Watison, 668 F.3d at 1114 (holding that the
22 filing of an administrative appeal is conduct protected by the First Amendment). He further
23 identifies Defendants McClain, Galindo, and Moreno, as “responsible” for the April 2,
24 2020 classification determination and endorsement for his transfer to SVSP,17 which is
25 sufficient to plead an “adverse” action. See also Rhodes II, 408 F.3d at 568 (holding that
26 prison transfer may constitute an adverse action).
27
28
1 However, while the timing of an allegedly adverse action “can properly be
2 considered as circumstantial evidence of retaliatory intent,” Pratt v. Rowland, 65 F.3d 802,
3 806 (9th Cir. 1995), Reynolds nevertheless fails to provide any “further factual
4 enhancement” to suggest McClain, Galindo, or Moreno found him eligible for transfer to
5 SVSP because he filed CDCR 602 inmate appeals against any of the other Defendants
6 responsible for his CSW placement or for any of his previous RVR proceedings. Bell
7 Atlantic v. Twombly, 550 U.S. 554, 557 (2007); Brodheim, 584 F.3d at 1271 (plaintiff must
8 plead enough facts to plausibly establish defendants’ “retaliatory motive”); Rhodes II, 408
9 F.3d at 567; Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989)
10 (holding that the plaintiff was required to allege that his protected conduct was “the
11 ‘substantial’ or ‘motivating’ factor behind the defendant’s conduct”). Reynolds concludes
12 only that McClain, Galindo, Hernandez (or Fernandez) “worked in union for retaliatory
13 transfer,” and concocted a “stratagem” to “falsely us[e] B yard conversion” to justify his
14 transfer “due to cause for action and appeals filed.” (See Compl. at 20; Pl.’s Decl., ECF
15 No. 5 at 24.) But conclusory allegations alone are not enough to plead retaliatory motive.
16 Speculation is insufficient, see Bell Atlantic, 550 U.S. at 555, and in reviewing retaliation
17 claims, courts have cautioned against “engag[ing] in the logical fallacy of post hoc, ergo
18 propter hoc, literally, ‘after this, therefore because of this.’” See Huskey v. City of San
19 Jose, 204 F.3d 893, 899 (9th Cir. 2000) (citation omitted).
20 Further, Reynolds does not allege any facts to plausibly suggest that McClain,
21 Galindo, or Moreno’s actions chilled the exercise of any protected conduct. Brodheim, 584
22 F.3d at 1269, 1271 (adverse action must be sufficient to “chill or silence a person of
23 ordinary firmness from future First Amendment activities”) (citing Rhodes II, 408 F.3d at
24 568-69). Lastly, Reynolds fails to plead any facts to suggest that McClain, Galindo, or
25 Moreno’s transfer endorsement failed to “reasonably advance a legitimate correctional
26 goal.” Id. at 1269; Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995) (“[Plaintiff] must
27 show that there were no legitimate correctional purposes motivating the actions he
28 complains of.”). “A plaintiff successfully pleads this element by alleging, in addition to a
1 retaliatory motive, that the defendant’s actions were arbitrary and capricious, or that they
2 were ‘unnecessary to the maintenance of order in the institution.’” Watison, 668 F.3d at
3 1114‒15 (quoting Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir. 1984)).
4 Thus, for all these reasons, the Court finds that Reynolds’s does not state a plausible
5 First Amendment retaliation claim related to his April 2, 2020 UCC hearing or its results.
6 See Lopez, 203 F.3d at 1126-27; Rhodes III, 621 F.3d at 1004.
7
8 D. Leave to Amend
9 Having found that Reynolds’s Complaint, when considered together with his
10 Declaration, and all incorporated exhibits, does not state any § 1983 claim upon which
11 relief can be granted, the Court dismisses the Complaint sua sponte pursuant to 28 U.S.C.
12 § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d
13 at 1121. In light of Reynolds’s pro se status, the Court also grants Reynolds leave to amend.
14 See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not
15 dismiss a pro se complaint without leave to amend [pursuant to 28 U.S.C.
16 § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the deficiencies of the complaint
17 could not be cured by amendment.’”) (quoting Akhtar, 698 F.3d at 1212).
18
19 III. CONCLUSION AND ORDER
20 Accordingly, the Court:
21 1. GRANTS Reynolds’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)
22 (ECF No. 2).
23 2. DIRECTS the Secretary of the CDCR, or her designee, to collect from
24 Reynolds’s trust account the $350 filing fee owed in this case by garnishing monthly
25 payments in an amount equal to twenty percent (20%) of the preceding month’s income
26 and forwarding those payments to the Clerk of the Court each time the amount in the
27 account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE
28 CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS
1 ACTION.
2 3. DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail
3 on Kathleen Allison, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-
4 0001, or by forwarding an electronic copy to trusthelpdesk@cdcr.ca.gov.
5 4. DISMISSES Reynolds’s Complaint sua sponte and in its entirety based on
6 his failure to state a claim upon which relief may be granted pursuant to 28 U.S.C.
7 §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
8 5. GRANTS Reynolds 60 days leave from the date of this Order in which to file
9 an Amended Complaint which cures the deficiencies of pleading noted. Should Reynolds
10 seek to amend his Complaint he must file the Amended Complaint or on or before
11 November 24, 2021.
12 Reynolds’s Amended Complaint must be complete by itself without reference to his
13 original pleading.18 Defendants not named and any claim not re-alleged in his Amended
14 Complaint will be considered waived. See S.D. Cal. Civ. L.R. 15.1; Hal Roach Studios,
15 Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended
16 pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir.
17 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an
18 amended pleading may be “considered waived if not repled”).
19 If Reynolds fails to file an Amended Complaint within 60 days of the date of this
20 Order, or on or before November 24, 2021, the Court will enter a final Order dismissing
21 this civil action based both on his failure to state a claim upon which relief can be granted
22 pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b) and his failure to prosecute in
23
24
18 Because the exhibits Reynolds filed in support of his original Complaint are
25 voluminous, he need not re-file them together with his Amended Complaint and may
instead simply request that the exhibits already on file, see ECF Nos. 4, 4-1, 4-2, 4-3, and
26
4-4, be incorporated by reference in his Amended Complaint. See S.D. Cal. Civ. L.R. 15.1
27 (requiring that “[a]ll amended pleadings must contain copies all exhibits referred to in such
amended pleadings[,]” unless permission is granted by the Court to remove and attach
28
1 compliance with a court order requiring amendment. See Lira v. Herrera, 427 F.3d 1164,
2 || 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity to fix his
3 complaint, a district court may convert the dismissal of the complaint into dismissal of the
4 || entire action.”).
5
6 IT IS SO ORDERED.
7 A ,
8 || DATED: September 29, 2021 Ypilag (Lyphaa. 6
9 United States District Judge
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
~90L