Fernandez v. Duarte

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7 UNITED STATES DISTRICT COURT

8 SOUTHERN DISTRICT OF CALIFORNIA

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10 FRANK J. FERNANDEZ, Case No.: 3:22-cv-0446-BAS-WVG

CDCR# D-61222,

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ORDER:

Plaintiff,

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vs. (1) GRANTING MOTION TO

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PROCEED IN FORMA PAUPERIS

R. MADDEN; E. DUARTE; J. HILL;

14 (ECF No. 2);

J. SAIS; J. BONILLAS; D. LOOP;

15 E. MATUS; A. ACUNA; J. JIMENEZ,

(2) DENYING MOTION TO

16 Defendants. APPOINT COUNSEL (ECF No. 3);

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(3) DISMISSING COUNTS 2, 3, 4

18 AND 5 PURSUANT TO 28 U.S.C.

§ 1915(e)(2)(B) & 1915A; AND

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20 (4) GRANTING PLAINTIFF LEAVE

TO AMEND

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23 Frank Fernandez (“Plaintiff”), currently incarcerated at Pelican Bay State Prison

24 (“PBSP”), and proceeding pro se, has filed this civil action pursuant to 42 U.S.C. § 1983,

25 alleging Defendants violated his constitutional rights when he was housed at Centinela

26 State Prison (“CEN”). (See Compl. at 1, ECF No. 1.) Plaintiff seeks to proceed in forma

27 pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (IFP Mot., ECF No. 2) and moves for

28 appointment of counsel (Mot. to Appoint Counsel, ECF No. 3).

1 I. Motion to Proceed IFP

2 A party who institutes a civil action, suit, or proceeding in a district court of the

3 United States, except for an application for writ of habeas corpus, must pay a filing fee of

4 $402.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

5 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

6 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.

7 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to

8 proceed IFP remains obligated to pay the entire fee in increments or “installments,” Bruce

9 v. Samuels, 577 U.S. 82, 84 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir.

10 2015), regardless of whether his action is ultimately dismissed, see 28 U.S.C. § 1915(b)(1)

11 & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

12 Section 1915(a)(2) requires a prisoner who seeks to proceed IFP to submit a

13 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the

14 6-month period immediately preceding the filing of the complaint.” 28 U.S.C.

15 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified

16 trust account statement, the Court assesses an initial payment of 20% of (a) the average

17 monthly deposits in the account for the past six months, or (b) the average monthly balance

18 in the account for the past six months, whichever is greater, unless the prisoner has no

19 assets. See 28 U.S.C. § 1915(b)(1), (b)(4). The institution having custody of the prisoner

20 then collects subsequent payments, assessed at 20% of the preceding month’s income, in

21 any month in which the prisoner’s account exceeds $10, and forwards those payments to

22 the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).

23 Under 28 U.S.C. § 1915, indigency is the benchmark for whether a plaintiff qualifies

24 for IFP status. The determination of indigency falls within the district court’s sound

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26 1 In addition to the $350 statutory fee, civil litigants must pay an administrative fee of $52. See 28

U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff.

27 Dec. 1, 2020)). The additional $52 administrative fee does not apply to persons granted leave to proceed

IFP. Id.

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1 discretion. Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) (holding that

2 “[s]ection 1915 typically requires the reviewing court to exercise its sound discretion in

3 determining whether the affiant has satisfied the statute’s requirement on indigency”),

4 rev’d on other grounds, 506 U.S. 194 (1993). It is well-settled that a party need not be

5 completely destitute to proceed IFP. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S.

6 331, 339–40 (1948). To satisfy the requirements of 28 U.S.C. § 1915(a), “an affidavit [of

7 poverty] is sufficient which states that one cannot because of his poverty pay or give

8 security for costs . . . and still be able to provide himself and the dependents with the

9 necessities of life.” Id. at 339. However, “the same even-handed care must be employed

10 to assure that federal funds are not squandered to underwrite, at public expense . . . the

11 remonstrances of a suitor who is financially able, in whole or in part, to pull his own oar.”

12 Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984).

13 In support of his IFP Motion, Plaintiff has submitted a copy of his CDCR inmate

14 trust account statement and prison certificate. (See IFP Mot.) This statement shows that

15 Plaintiff has had average monthly deposits of $0.42 and an average monthly balance of

16 $3800.83 during the six months preceding filing. (See id. at 5.) At the time of filing, he

17 had $3,303.38 on account at PBSP. (Id.) This showing suffices to establish IFP status. Cf.

18 Thistle v. La Rose, No. 21-CV-1414-JLS (MDD), 2021 WL 4150381, at *1 (S.D. Cal. Sept.

19 13, 2021) (granting IFP status where plaintiff had positive monthly cashflow of

20 approximately $850 and owned assets valued at approximately $20,000).

21 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2) and

22 assesses an initial partial filing fee of $350 pursuant to 28 U.S.C. Section 1915(b)(1).2 The

23 Court directs the Secretary of the CDCR, or their designee, to collect this initial filing fee

24 only if sufficient funds are available in Plaintiff’s account at the time this Order is executed.

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26 2 As stated above, the Court must assess an initial payment of 20% of (a) the average monthly

deposits in the account for the past six months, or (b) the average monthly balance in the account for the

27 past six months, whichever is greater. In this case, 20% of Plaintiff’s average monthly balance is

$760.17 which far exceeds the $350 filing fee owed. Therefore, the Court will limit the initial partial

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1 See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited

2 from bringing a civil action or appealing a civil action or criminal judgment for the reason

3 that the prisoner has no assets and no means by which to pay the initial partial filing fee.”);

4 Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve”

5 preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay . . . due to

6 the lack of funds available to him when payment is ordered”).

7 II. Screening Pursuant to 28 U.S.C. § 1915(e)(2)(B) & 1915A

8 A. Standard of Review

9 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a

10 preliminary screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these

11 statutes, the Court must review and sua sponte dismiss an IFP complaint, and any

12 complaint filed by a prisoner seeking redress from a governmental entity, or officer or

13 employee of a governmental entity, which is frivolous, malicious, fails to state a claim, or

14 seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122,

15 1126–27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v.

16 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The

17 purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not

18 bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir.

19 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir.

20 2012)).

21 “The standard for determining whether a plaintiff has failed to state a claim upon

22 which relief can be granted under 28 U.S.C. § 1915(e)(2)(B)(ii) is the same as the Federal

23 Rule of Civil Procedure [(“Rule”)] 12(b)(6) standard for failure to state a claim.” Watison

24 v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113,

25 1121 (9th Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar

26 standard applied in the context of failure to state a claim under Federal Rule of Civil

27 Procedure 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual

28 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.

1 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at

2 1121.

3 Detailed factual allegations are not required, but “[t]hreadbare recitals of the

4 elements of a cause of action, supported by mere conclusory statements, do not suffice.”

5 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief

6 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial

7 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned,

8 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility

9 standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

10 B. Plaintiff’s Allegations3

11 This action arises out of Plaintiff’s claim that several correctional officers at CEN

12 retaliated against him for reporting the misconduct of one of their colleagues. Plaintiff

13 alleges this group of CEN correctional officers retaliated against him by falsely accusing

14 him of assisting with another inmate’s escape attempt and by falsifying a “possession of a

15 deadly weapon” charge against him. Plaintiff alleges he was denied due process in seeking

16 vindication of the disciplinary charge for which he ultimately was convicted, and that he

17 was further harmed by the purported mismanagement of inmate-grievances he filed

18 essentially to collaterally attack that disciplinary conviction.

19 In June of 2019, Plaintiff was the Chairman of the “Institutional Advisory

20 Committee” at CEN, where he was housed. (Compl. ¶ 18.) In this role, Plaintiff served as

21 a liaison between CEN correctional staff and CEN inmates. (See id.) Following a verbal

22 confrontation between an inmate and a correctional officer, neither of whom the Complaint

23 names, Plaintiff met with Captain J. Sais (“Sais”) to discuss the incident. (Id. ¶ 15.) Sais

24 decided to remove the correctional officer involved in the spat from his post, pending a

25 “threat assessment” to determine whether the correctional officer was in danger. (Id. ¶ 17.)

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27 3 These allegations all are taken from the Complaint. (ECF No. 1.) For this § 1915A screening,

the Court accepts as true all of Plaintiffs’ factual allegations. See Safe Air for Everyone v. Meyer, 373

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1 Sais asked Plaintiff, “to assist in assessing whether a continued threat [against the

2 correctional officer] existed.” (Compl. ¶ 19.) Plaintiff reported to Sais that no such threat

3 existed and that the “only threat” was the correctional officer himself. (Id.)

4 The following day, or shortly thereafter, “Unit Control” informed Plaintiff that Sais

5 wanted to meet with him. (Compl. ¶ 20.) On his way to see Sais, Plaintiff was approached

6 by Lieutenant E. Duarte (“Duarte”) and another correctional officer, who is not a named

7 Defendant. (Id. ¶¶ 20–22.) During this confrontation, Duarte and his colleague took

8 “aggressive, opposing stance[s]” towards Plaintiff, causing him to feel “threatened and

9 uncomfortable.” (Id. ¶ 22.) Duarte told Plaintiff he wanted to speak with him about “this

10 threat on staff,” apparently referring to the above-referenced verbal affray for which Sais

11 had ordered a threat assessment. (Id. ¶ 23.) Plaintiff denied knowing of any threat posed

12 by inmates to any member of the correctional staff, to which Duarte responded, “We all

13 know it takes the ok [sic] of a big homie to assault the staff.” (Id. ¶ 24.) Plaintiff was later

14 informed that Duarte was telling other correctional officers that Plaintiff had given the

15 “greenlight” to inmates to assault “disrespectful” correctional staff. (Id. ¶¶ 26–28.)

16 Concerned that Duarte was spreading “false rumors” about him and, in doing so,

17 “creating a hostile environment” between CEN correctional officers and inmates, Plaintiff

18 reported Duarte to his superior, Sais. (Compl. ¶ 29.) Although Sais assured Plaintiff he

19 would examine these claims against Duarte, Plaintiff avers Sais failed to undertake a proper

20 investigation into Duarte’s misconduct or institute appropriate discipline. (Id. ¶ 30.)

21 Approximately one week after Plaintiff’s meeting with Sais, Plaintiff was forcibly

22 removed from his cell by Correctional Officer A. Acuna (“Acuna”) and three other

23 unnamed correctional officers. (Compl. ¶ 31.) Acuna brought Plaintiff to a holding cell

24 where Plaintiff was strip searched. (Id.) While Plaintiff was in the holding cell, Duarte

25 arrived at the scene. (Id. ¶ 34.) Plaintiff asked Duarte why he was being detained and

26 searched. (Id.) Duarte essentially told Plaintiff that he was suspected of aiding an inmate’s

27 attempted escape from CEN. (Id.) Plaintiff vehemently denied the accusation, in response

28 to which Duarte said, “I can make this or anything stick and even put more on it, if you

1 know what I mean.” (Id. ¶¶ 35–36).

2 At approximately the same time as Plaintiff was being searched in a holding cell,

3 Acuna undertook an inventory check of Plaintiff’s property. (Compl. ¶ 42.) Acuna

4 reported finding a “knife” or “blade,” and filled out a “Rules Violation Report” (“RVR”),

5 citing Plaintiff with “possession of a deadly weapon.” (Id.) Acuna annexed to the RVR a

6 “grainy black and white photocopy” of a photograph of the purported weapon. (Id. ¶¶ 42,

7 44.) However, Plaintiff avers the object Acuna classified as a “deadly weapon” in the RVR

8 simply is a “leatherman multi-purpose tool,” which consists of a pair of pliers, scissors, a

9 bottle opener, a file, a can opener, and screw drivers. (Id.) According to Plaintiff, the RVR

10 misclassifies the tool as a “deadly weapon.” (Id. ¶ 44.)

11 In light of the accusation that he aided an escape plot and the disciplinary charge of

12 “possession of a deadly weapon” lodged against him, Plaintiff was transferred to Calipatria

13 State Prison (“CAL”) where he was placed in Administrative Segregation (“Ad-Seg”).

14 (Compl. ¶¶ 39–41.)

15 An investigation was launched into the attempted inmate escape from CEN with

16 which Plaintiff was thought by CEN correctional staff to have been involved. (Compl. ¶

17 46.) Plaintiff “adamantly refuted” his involvement and offered to take a polygraph test to

18 prove his innocence. (Id. ¶¶ 45–46.) In early August of 2019, two CEN correctional

19 officers interviewed Plaintiff at CAL, after which they informed Plaintiff there was

20 insufficient evidence “to charge or hold Plaintiff in [A]d-[S]eg any longer” and that their

21 investigation had concluded. (Id. ¶ 46.) Plaintiff filed an inmate grievance against Duarte,

22 accusing him of “falsif[ying] and fabricat[ing] the escape plot in order to retaliate against

23 [P]laintiff for complaining to [Sais] of [Duarte’s] misconduct” (“Duarte Grievance”).

24 (Compl. ¶ 50.)

25 With respect to the disciplinary proceedings instituted against him for possession of

26 a deadly weapon, Plaintiff attended an “RVR hearing” at CAL on July 30, 2019, over which

27 Lieutenant J. Jimenez (“Jimenez”) presided. (Compl. ¶¶ 47–49.) At the hearing, Plaintiff

28 challenged Acuna’s classification of his leatherman tool as a “deadly weapon” and sought

1 disclosure of “actual [photographic] evidence” of the purported “knife” or “blade” found

2 in Plaintiff’s possession to supplement the “grainy black and white” photocopy that had

3 been appended by Acuna to the RVR. (Id.) Jimenez denied that request. (Id.) Following

4 the hearing, Plaintiff was convicted of possessing a deadly weapon, sentenced to a 7-month

5 term in the Special Housing Unit (“SHU”), and assessed a “360-day credit loss.” (Id. ¶

6 48.) In September of 2019, Plaintiff filed an inmate grievance essentially accusing Acuna

7 of falsifying a deadly weapon charge against him (“Acuna Grievance”). (Id. ¶ 55.)

8 Plaintiff alleges that Warden R. Madden (“Madden”) and Lieutenant D. Loop

9 (“Loop”) failed to initiate an investigation into the misconduct alleged in the Duarte

10 Grievance in accordance with “Sections 31140.11–15 and 54160 of the Department

11 Operation Manual,” failed to rule on the Duarte Grievance within a reasonable period of

12 time, and arbitrarily denied the Duarte Grievance. (Compl. ¶ 51.) Similarly, Plaintiff

13 alleges that Madden and acting Chief Deputy Warden J. Hill (“Hill”) failed to initiate an

14 investigation into the misconduct alleged in the Acuna Grievance, failed to rule on the

15 Acuna Grievance within a reasonable period of time, and arbitrarily denied the Acuna

16 Grievance. (Id. ¶ 55.)

17 In his Complaint, Plaintiff asserts five claims pursuant to 42 U.S.C. § 1983. (Compl.

18 ¶¶ 59–111.) Plaintiff claims that: (1) Duarte retaliated against him in violation of the First

19 Amendment (“Count One”); (2) Duarte, Acuna, Sais and Correctional Officers J. Bonilla

20 (“Bonilla”) and E. Matus (“Matus”) conspired to retaliate against him in violation of the

21 First Amendment (“Count Two”); (3) Jimenez denied him due process in violation of the

22 Fourteenth Amendment and was “deliberately indifferent” to Plaintiff’s Eighth

23 Amendment rights because he failed to “weigh actual evidence” at the RVR hearing,

24 leading to a wrongful disciplinary conviction (“Count Three”); (4) Hill and Loop were

25 “deliberately indifferent” to Plaintiff’s Eighth Amendment rights by failing to take

26 appropriate action upon the Acuna Grievance or Duarte Grievance, respectively (“Count

27 Four”); and (5) Madden was “deliberately indifferent” to Plaintiff’s Eighth Amendment

28 rights because he failed to “supervise,” “adequately train,” and “protec[t] Plaintiff from”

1 CEN correctional staff (“Count Five”).

2 Plaintiff seeks compensatory and punitive damages, as well as an “injunction

3 order[ing] Defendants to expunge the disciplinary conviction” from “Plaintiff’s

4 institutional records.” (Compl. ¶ 112.)

5 B. 42 U.S.C. § 1983

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). Section 1983 “is not itself a source of substantive

9 rights, but merely provides a method for vindicating federal rights elsewhere conferred.”

10 Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks and citations

11 omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a

12 right secured by the Constitution and laws of the United States, and (2) that the deprivation

13 was committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc.,

14 698 F.3d 1128, 1138 (9th Cir. 2012).

15 C. Analysis

16 The fundamental question presented here is whether Plaintiff has adequately alleged

17 any Defendant deprived him of a right “secured by the Constitution and laws of the United

18 States.” Tsao, 698 F.3d at 1138. For the reasons set forth below, Plaintiff adequately

19 alleges Duarte violated his First Amendment rights to satisfy the “low threshold” that

20 applies at the screening stage, but he fails to assert a legally viable claim against any other

21 Defendant.

22 1. Count One

23 “Within the prison context, a viable claim for First Amendment retaliation entails

24 five basic elements: (1) An assertion that a state actor took some adverse action against an

25 inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled

26 the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably

27 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th

28 Cir. 2005). “Purely retaliatory actions taken against a prisoner” for having filed or raised

1 a grievance against a correctional officer are paradigmatic of the sorts of factual scenarios

2 out of which viable First Amendment retaliation claims arise. Garcia v. Smith, No.

3 10cv1187 AJB (RBB), 2013 WL 12108668, at *4 (S.D. Cal. Aug. 21, 2013); cf. Sherman

4 v. Aguilar, No. 10-0290 IEG (PQR), 2012 WL 1107752, at *3 (S.D. Cal. Apr. 2, 2012);

5 Gonzalez v. Doe, No. 07-cv-1962-W (PQR), 2010 WL 371881, at *7 (S.D. Cal. July 28,

6 2010). A First Amendment violation may lie even when the misconduct identified in a

7 prisoner’s grievance does not rise to the level of a constitutional violation itself. See

8 Thomas v. Carpenter, 881 F.2d 828, 830 (9th Cir. 1989).

9 The Complaint contains a sufficient factual foundation upon which to predicate

10 Plaintiff’s First Amendment retaliation claim. The Complaint alleges that Duarte

11 fabricated Plaintiff’s involvement in an “escape plot” because Plaintiff had reported to Sais

12 that Duarte was spreading purportedly false rumors about Plaintiff’s involvement with

13 threats other inmates directed towards CEN correctional officers, satisfying the first three

14 elements of a retaliation claim in the prison context. (Compl. ¶¶ 60–61); see Rhodes, 408

15 F.3d at 567–58. The Complaint further satisfies the final two requisite elements of a

16 retaliation claim because it alleges (a) that Duarte’s accusations chilled Plaintiff’s First

17 Amendment rights because it resulted in him being transferred to CAL, where he was

18 housed in Ad-Seg until investigators determined they lacked sufficient evidence to charge

19 Plaintiff, and (b) that Plaintiff’s transfer to Ad-Seg lacked any “legitimate correctional”

20 basis because it was predicated upon Duarte’s false accusations. (See id. ¶ 62); see Rhodes,

21 408 F.3d at 567–68.

22 Accordingly, the Complaint adequately pleads the essential elements of a First

23 Amendment retaliation claim against Duarte to pass muster of the § 1915 standard.

24 2. Count Two

25 Plaintiff claims that Acuna, Bonillas, Matus, Duarte, and Sais conspired with one

26 another to further retaliate against Plaintiff by fabricating a “possession of a deadly

27 weapon” charge against him, for which Plaintiff ultimately was convicted and sentenced

28 to a 7-month term in SHU and assessed a “360-day credit loss.” (Compl. ¶¶ 70–90.)

1 To state a claim for conspiracy under section 1983, a plaintiff must allege facts

2 sufficient to show the exercise of an agreement or meeting of the minds between the alleged

3 conspirators to violate the plaintiff’s constitutional rights, Avalos v. Baca, 596 F.3d 583,

4 592 (9th Cir. 2010); Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2001), and that an “actual

5 deprivation of his constitutional rights resulted from the alleged conspiracy” Hart v. Parks,

6 450 F.3d 1059, 1071 (9th Cir. 2006) (quotation marks and citation omitted). A plaintiff

7 need not allege each participant in the conspiracy “kn[e]w the exact details of the plan” to

8 be held liable, “but each participant must [be alleged to] at least share the common

9 objective of the conspiracy.” Franklin, 312 F.3d at 441 (quotation marks omitted).

10 Additionally, Plaintiff must allege that Defendants “conspired or acted jointly in concert

11 and that some overt act [was] done in furtherance of the conspiracy.” Sykes v. California,

12 497 F.2d 197, 200 (9th Cir. 1974).

13 “Where ‘assertions’ of conspiracy ‘lack any factual foundation,’ they amount to

14 merely conclusory allegations’ and are insufficient to state a claim.” Rosario v. City of

15 New York, 18 Civ. 4023 (LGS), 2019 WL 4450685, at *7 (S.D.N.Y. Sept. 16, 2019)

16 (quoting Jackson v. Cty. of Rockland, 450 F. App’x 15, 18 (2d Cir. 2011) (summary order));

17 see also Mosher v. Saalfield, 589 F.2d 438, 431 (9th Cir. 1978) (“[M]ore than vague

18 conclusory allegations are required to state a [conspiracy] claim.”).

19 Here, the Complaint sets forth a single factual allegation in support of Plaintiff’s

20 conspiracy claim: that Acuna, Bonillas, Matus, Duarte, and Sais “were all present in the

21 gym and program office” just before Acuna conducted an inventory search of Plaintiff’s

22 possessions that led to Acuna’s discovery of a purported “knife” or blade” at the heart of

23 Plaintiff’s administrative conviction. (Compl. ¶ 44.) In essence, Plaintiff asks the Court

24 to infer from the fact these Defendants congregated with one another before he was

25 purportedly framed for possessing a deadly weapon that they entered into an “agreement”

26 or “meeting of the minds” to retaliate against Plaintiff. But drawing an inference of

27 conspiracy from this single allegation would require the sort of speculation and guesswork

28 this Court is forbidden to undertake, including at the § 1915 stage. The Complaint is devoid

1 of any “factual foundation” for the notion that Acuna, Bonillas, Duarte, and Sais “had an

2 agreement or meeting of the minds” to retaliate against him; Plaintiff does not allege what

3 “specific acts” Acuna, Bonillas, Matus, Duarte, or Sais undertook to “carr[y] the

4 conspiracy into effect how those acts fit into the conspiracy, and how the injury to

5 [Plaintiff] was foreseeable therefrom.’” Cox v. Ashcroft, 603 F. Supp. 2d 1261, 1271–72

6 (E.D. Cal. 2009) (quoting Graves v. United States, 961 F. Supp. 314 (D.D.C. 1997)).

7 Because the Complaint does not contain this sort of factual information, Plaintiff may not

8 proceed with Count Two.

9 Additionally, because Plaintiff’s claim that Acuna, Bonillas, Matus, Duarte, and Sais

10 fabricated the initial “possession of a deadly weapon” charge against him would

11 necessarily imply the invalidity of his subsequent conviction, seven-month sentence, and

12 360-day credit loss, Count Two is not legally cognizable for the reasons stated below, at

13 supra Sec. III.C.3.a. See Heck v. Humphrey, 512 U.S. 477, 486–87 (1994) (holding that

14 where a 42 U.S.C. § 1983 action, if meritorious, “would necessarily imply the invalidity of

15 his conviction or sentence,” a plaintiff first “must prove that the conviction or sentence has

16 been reversed on direct appeal, expunged by executive order, declared invalid by a state

17 tribunal authorized to make such a determination, or called into question by a federal

18 court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254”).

19 Accordingly, the Court DISMISSES Plaintiff’s Count Two for failing to state a

20 claim upon which relief may be granted.

21 3. Counts Three and Four

22 Counts Three and Four of the Complaint are predicated upon similar theories of

23 wrongdoing. Plaintiff alleges that Jimenez, Hill, Loop violated his Eighth Amendment

24 right to be free from “cruel and unusual punishment” through their “deliberate

25 indifference”: Jimenez in the way in which he handled Plaintiff’s RVR hearing (Count

26 Three) and Hill and Loop in the way in which they responded to the Acuna and Duarte

27 Grievances, respectively (Count Four). Plaintiff further alleges that Jimenez’s handling of

28 the RVR hearing simultaneously violated his Fourteenth Amendment due process right

1 (Count Three). These claims are felled for at least two independently fatal reasons.

2 a. Heck Bar

3 Plaintiff seeks money damages arising from the Eighth and Fourteenth Amendment

4 violations lodged against Jimenez, Hill, and Loop. (Compl. ¶ 112.) But Plaintiff’s claims

5 as currently alleged present a procedural bar.

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

7 imprisonment: a petition for writ of habeas corpus, 28 U.S.C. § 2254, and a complaint

8 under . . . 42 U.S.C. § 1983.” Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam).

9 “Challenges to the validity of any confinement or to particulars affecting its duration are

10 the province of habeas corpus; requests for relief turning on circumstances of confinement

11 may be presented in a § 1983 action.” Id. (emphasis added and internal citation omitted).

12 A prisoner’s claims sound in habeas corpus if they challenge the fact or duration of his

13 conviction or sentence. Nettles v. Grounds, 830 F.3d 922, 934 (9th Cir. 2016) (en banc),

14 cert. denied, 137 S. Ct. 645 (2017); Ramirez v. Galaza, 334 F.3d 850, 858 (9th Cir. 2003).

15 In Heck v. Humphrey, the Supreme Court held that a section 1983 claim cannot

16 proceed when “a judgment in favor of the plaintiff would necessarily imply the invalidity

17 of his conviction or sentence.” Heck, 512 U.S. at 486–87. Accordingly, “a state prisoner’s

18 [section] 1983 action is barred (absent prior invalidation)—no matter the relief sought

19 (damages or equitable relief) [and] no matter the target of the prisoner’s suit (state conduct

20 leading to conviction or internal prison proceedings)—if success in that action would

21 necessarily demonstrate the invalidity of confinement or its duration.” Wilkinson v.

22 Dotson, 544 U.S. 74, 81–82 (2005). Heck requires the plaintiff in a § 1983 action “first . .

23 . to prove that his conviction had been invalidated in some way.” McDonough v. Smith,

24 139 S. Ct. 2149, 2157 (2019) (citing Heck, 512 U.S. at 486). “This favorable-termination

25 requirement, the Court explained, applies whenever ‘a judgment in favor of the plaintiff

26 would necessarily imply’ that his prior conviction or sentence was invalid.” Id. (quoting

27 Heck, 512 U.S. at 487).

28 Heck’s bar applies in the prison disciplinary context when the “defect complained

1 of by [a plaintiff] would, if established, necessarily imply the invalidity of the deprivation

2 of [his] good-time credits[,]” Edwards v. Balisok, 520 U.S. 641, 646 (1997); Nonnette v.

3 Small, 316 F.3d 872, 875 (9th Cir. 2002), and if the restoration of those credits

4 “necessarily” would “affect the duration of time to be served.” Muhammed, 540 U.S. at

5 754; see also Nettles, 830 F.3d at 929 n.4 (“Heck applies only to administrative

6 determinations that ‘necessarily’ have an effect on ‘the duration of time to be served.’”

7 (citations omitted)); Ramirez, 334 F.3d at 856 (“[T]he applicability of [Heck’s] favorable

8 termination rule turns solely on whether a successful § 1983 action would necessarily

9 render invalid a conviction, sentence, or administrative sanction that affected the length of

10 the prisoner’s confinement.”).

11 Here, a judgment in Plaintiff’s favor would necessarily imply the invalidity of his

12 disciplinary conviction and his subsequent credit loss. See Edwards, 520 U.S. at 648

13 (finding prisoner’s claims for declaratory relief and money damages “based on allegations

14 of deceit and bias on the part of the decisionmaker . . . necessarily imply the invalidity of

15 the punishment imposed, [and are] not cognizable under § 1983.”). Because the Complaint

16 fails to allege that Plaintiff’s disciplinary conviction has already been “reversed on direct

17 appeal, expunged by executive order, declared invalid by a state tribunal authorized to

18 make such determination, or called into question by a federal court’s issuance of a writ of

19 habeas corpus,” he cannot proceed with his claims against Jimenez, Hill, or Loop. Heck,

20 512 U.S. at 487.

21 Therefore, the Court must dismiss Counts Three and Four for failure to state a

22 cognizable claim.

23 b. Prisoner-Grievance Bar

24 Furthermore, to the extent Plaintiff’s seeks to challenge the CEN procedures

25 deployed to administer his RVR hearing or to process his Duarte and Acuna Grievances as

26 inconsistent with due process under the Fourteenth Amendment, those claims against

27 Jimenez, Hill, and Loop are not legally cognizable.

28 An official’s allegedly improper processing of a prisoner’s grievance or appeal,

1 without more, does not serve as a sufficient basis for section 1983 liability. Ramirez v.

2 Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (prisoners do not have a “separate constitutional

3 entitlement to a specific prison grievance procedure.”) (citation omitted); Mann v. Adams,

4 855 F.2d 639, 640 (9th Cir. 1988) (due process not violated simply because defendant fails

5 properly to process grievances submitted for consideration); see also Todd v. Cal. Dep’t of

6 Corrs. and Rehab., 615 F. App’x. 415, 415 (9th Cir. 2015) (district court properly

7 dismissed claim based on improper “processing and handling of […] prison grievances,”

8 since prisoners have no “constitutional entitlement to a specific prison grievance

9 procedure”) (citing Ramirez, 334 F.3d at 860) (quotation marks omitted); Shallowhorn v.

10 Molina, 572 F. App’x. 545, 547 (9th Cir. 2014) (district court properly dismissed section

11 1983 claims against defendants who “were only involved in the appeals process”) (citing

12 Ramirez, 334 F.3d at 860); Daniels v. Aguilera, No. 2:16-CV-00996-JAM-CKD P, 2018

13 WL 558658, at *1 (E.D. Cal. Jan. 24, 2018), report and recommendation adopted sub nom.

14 Daniels v. Aguillera, 2018 WL 1763311 (E.D. Cal. Apr. 12, 2018) (“Because there is no

15 right to any particular grievance process, it is impossible for due process to have been

16 violated by ignoring or failing to properly process prison grievances.”). Simply “‘[r]uling

17 against a prisoner on an administrative complaint does not cause or contribute to the

18 violation.’” Ellington v. Clark, 2010 WL 3001427, at *2 (E.D. Cal. Jul. 29, 2010) (quoting

19 George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007)).

20 Accordingly, for this reason, too, Counts Three and Four also fail.

21 4. Count Five

22 Finally, the Complaint appears to seek to hold Warden Madden liable for alleged

23 constitutional violations committed by his subordinates under a theory of respondeat

24 superior liability. (Compl. ¶ 102 (“Defendant Warden Madden violated Plaintiff’s right to

25 be free from cruel and unusual punishment guaranteed to the Plaintiff by the Eighth

26 Amendment . . . by his failure to adequately train custody staff in not falsifying and

27 fabricating information and from [sic] not protecting Plaintiff from the retaliation and

28 conspiricy [sic] by custody staff, by his failure to supervise the other defendants and his

1 failure to investigate the incidents, staff complaints or discipline the other Defendants[.]”).)

2 There is no respondeat superior liability under 42 U.S.C. § 1983. Palmer v.

3 Sanderson, 9 F.3d 1433, 1437–38 (9th Cir. 1993). “Because vicarious liability is

4 inapplicable to . . . § 1983 suits, [a plaintiff] must plead that each government-official

5 defendant, through the official’s own individual actions, has violated the Constitution.”

6 Iqbal, 556 at 676; see also Jones v. Cmty. Redevelopment Agency of L.A., 733 F.2d 646,

7 649 (9th Cir. 1984) (even pro se plaintiff must “allege with at least some degree of

8 particularity overt acts which defendants engaged in” to state a claim). “A plaintiff must

9 allege facts, not simply conclusions, t[o] show that [each defendant] was personally

10 involved in the deprivation of his civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194

11 (9th Cir. 1998); see also Estate of Brooks ex rel. Brooks v. United States, 197 F.3d 1245,

12 1248 (9th Cir. 1999) (“Causation is, of course, a required element of a § 1983 claim.”). Put

13 differently, to establish liability against a supervisory defendant, a complaint must

14 adequately allege that the official was personally involved in the constitutional deprivations

15 at issue or “a sufficient causal connection between the supervisor’s wrongful conduct and

16 the constitutional violation.” Keates v. Koile, 883 F.3d 1228, 1242–43 (9th Cir. 2018);

17 Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011).

18 The Complaint, here, does neither. Rather, it casts Madden’s purported wrongdoing

19 merely in terms of generalities and with boilerplate language. (See Compl. ¶ 101.) Plaintiff

20 must proffer facts that enable this Court to infer either that Madden was involved in the

21 constitutional violations alleged in Counts One through Four or that a causal nexus exists

22 between Madden’s failure to supervise or train and Plaintiff’s purported constitutional

23 injuries.

24 Accordingly, the Court also dismisses Count Five.

25 * * * *

26 While Counts Two through Five warrant dismissal, it cannot be said at this time “it

27 is absolutely clear” the deficiencies that fell those claims cannot “be cured by amendment.”

28 Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (quoting Akhtar v. Mesa, 698 F.3d

1 1202, 1212 (9th Cir. 2012)). Accordingly, the Court GRANTS Plaintiff leave to amend

2 those Counts. See id.

3 III. Motion for Appointment of Counsel

4 Finally, Plaintiff requests appointment of counsel because he “is unable to afford

5 counsel,” the “issues in this case are complex,” and he has limited access to the prison’s

6 law library. (Mot. for Appointment, ECF No. 3.) There is no constitutional right to counsel

7 in a civil case, and the decision to appoint counsel under 28 U.S.C. § 1915(e)(1) is within

8 “the sound discretion of the trial court and is granted only in exception circumstances.”

9 Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004); Terrell v. Brewer,

10 935 F.2d 1015, 1017 (9th Cir. 1991) (noting that only “exceptional circumstances” support

11 such a discretionary appointment). Exceptional circumstances exist where there is a

12 cumulative showing of both a likelihood of success on the merits and an inability of the

13 pro se litigant to articulate his claims in light of their legal complexity. See Harrington v.

14 Scribner, 785 F.3d 1299, 1309 (9th Cir. 2015); Palmer v. Valdez, 560 F.3d 965, 970 (9th

15 Cir. 2009).

16 While a pro se litigant “may not have vast resources or legal training,” these are

17 simply among the commonly shared “types of difficulties encountered by many pro se

18 litigants.” Wells v. Washington State Dep’t of Corr., No. C13-234 RJB/KLS, 2013 WL

19 4009076, at *1 (W.D. Wash. Aug. 5, 2013). Here, nothing in Plaintiff’s Complaint

20 suggests he is incapable of articulating the factual basis for his claims which appear

21 “relatively straightforward.” Harrington, 785 F.3d at 1309. In fact, the Court has found,

22 based on its initial screening of Plaintiff’s Complaint under 28 U.S.C. § 1915(e)(2)(B) and

23 § 1915A(b), that he has stated a plausible First Amendment retaliation claim.

24 In addition, while Plaintiff may have sufficiently pleaded a plausible First

25 Amendment claim at this preliminary stage of the proceedings, it is too soon to tell whether

26 Plaintiff is likely to succeed on the merits. Harrington, 785 F.3d at 1309; Cano v. Taylor,

27 739 F.3d 1214, 1218 (9th Cir. 2014) (affirming denial of counsel where prisoner could

28 articulate his claims in light of the complexity of the issues involved, but did not show

1 likelihood of succeed on the merits); see also Dickey v. Strayhorn, No. 3:17-cv-00546-JLS-

2 JLB, 2017 WL 3118797, at *1 (S.D. Cal. July 21, 2017), reconsideration denied, 2017 WL

3 4271975 at *1 (S.D. Cal. Sept. 26, 2017) (“To demonstrate that he has a likelihood of

4 success at trial, Plaintiff must do more than merely allege that one of his constitutional

5 rights was violated. He must provide evidence to the effect that he has a likelihood of

6 success on the merits of his allegations.”); Torbert v. Gore, No. 3:14-cv-02991-BEN-NLS,

7 2016 WL 1399230, at *1 (S.D. Cal. Apr. 8, 2016) (“A plaintiff that provides no evidence

8 of his likelihood of success at trial fails to satisfy the first factor of the [exceptional

9 circumstances] test.”).

10 Accordingly, the Court finds no “exceptional circumstances” exist at this

11 preliminary stage of the case and DENIES without prejudice Plaintiff’s Motion to Appoint

12 Counsel. (ECF No. 3.)

13 IV. CONCLUSION

14 Based on the foregoing, the Court:

15 1) GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)

16 (ECF No. 2).

17 2) DIRECTS the Secretary of the CDCR, or their designee, to collect from

18 Plaintiff’s trust account the $350 filing fee owed in this case by garnishing $350.00 from

19 his inmate trust account. ALL PAYMENTS SHALL BE CLEARLY IDENTIFIED BY

20 THE NAME AND NUMBER ASSIGNED TO THIS ACTION.

21 3) DIRECTS the Clerk of the Court to serve a copy of this Order on Kathleen

22 Allison, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001.

23 4) DENIES without prejudice Plaintiff’s Motion to Appoint Counsel (ECF No.

24 3).

25 5) DISMISSES without prejudice Counts Two, Three, Four, and Five, sua

26 sponte, for failing to state a claim upon which relief may be granted pursuant to 28 U.S.C.

27 § 1915(e)(2)(B)(ii) and § 1915A(b)(1).

28 6) GRANTS Plaintiff leave to either: (1) file a Notice of Intent to proceed with

1 ||his First Amendment claim against Duarte only (Count One); or (2) file an Amended

2 ||Complaint correcting all the deficiencies identified by the Court in this Order. Plaintiff

3 file either a Notice of Intent or an Amended Complaint by no later than September

4 || 23, 2022.

5 If Plaintiff chooses to proceed with Count One only, the Court will issue an Order

6 || directing the U.S. Marshal to effect service of his Complaint on Duarte and will dismiss

7 remaining claims and Defendants. If Plaintiff chooses to file an amended pleading

8 ||correcting the deficiencies outlined in this Order, his Amended Complaint must be

9 complete in itself without reference to his original pleading. Defendants not named and

10 |/ any claims not re-alleged in the Amended Complaint will be considered waived. See Civ.

11 15.1; Hal Roach Studios, Inc., 896 F.2d at 1546 (“[A]n amended pleading supersedes

12 || the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that

13 |/claims dismissed with leave to amend which are not re-alleged in an amended pleading

14 || may be “considered waived if not repled.”).

15 Plaintiff's amended pleading must be titled “First Amended Complaint,” contain

16 Cal. Civil Case No. 22-cv-0446-BAS-WVG in its caption, and comply both with

17 || Federal Rule of Civil Procedure 8 and Southern District of California Local Rule 8.2.a. In

18 || order to assist Plaintiff in complying with these requirements, the Court further DIRECTS

19 || the Clerk of the Court to provide Plaintiff with a blank copy of its form Complaint under

20 || the Civil Rights Act, 42 U.S.C. § 1983 for his use and convenience should he choose to

21 ||amend.

22 IT ISSO ORDERED

23 || DATED: August 4, 2022 ( yi uA (Hophta. 6

24 United States District Judge

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