# Fernandez v. Duarte

> District Court, S.D. California · August 4, 2022

URL: https://www.frixlaw.com/law-library/cases/10086184

## Case

- **Court:** District Court, S.D. California
- **Decided:** August 4, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10086184

## How later opinions describe it (automated extraction)

- 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
- 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.”
- 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)”
- noting that only “exceptional circumstances” support 11 such a discretionary appointment
- 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”

## Opinion text

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7 UNITED STATES DISTRICT COURT
8 SOUTHERN DISTRICT OF CALIFORNIA
9
10 FRANK J. FERNANDEZ, Case No.: 3:22-cv-0446-BAS-WVG
CDCR# D-61222,
11
ORDER:
Plaintiff,
12
vs. (1) GRANTING MOTION TO
13
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);

17
(3) DISMISSING COUNTS 2, 3, 4
18 AND 5 PURSUANT TO 28 U.S.C.
§ 1915(e)(2)(B) & 1915A; AND
19

20 (4) GRANTING PLAINTIFF LEAVE
TO AMEND
21

22
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
25

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.
28
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.
25

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
28
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.)
26

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10086184. Public record. Not legal advice.