(PC) Wright v. Deforest

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 ATHELSTAN A. WRIGHT, No. 2:24-cv-0420 CSK P

12 Plaintiff,

13 v. ORDER

14 M. DEFOREST, et al.,

15 Defendants.

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17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis. Plaintiff’s amended

18 complaint is before the Court. As discussed below, plaintiff is granted an opportunity to proceed

19 on the claims identified as cognizable, or he may elect to file a second amended complaint.

20 I. SCREENING STANDARDS

21 The court is required to screen complaints brought by prisoners seeking relief against a

22 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

23 court must dismiss a complaint or portion thereof if the prisoner raised claims that are legally

24 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

25 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

26 A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

27 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

28 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an

1 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

2 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

3 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

4 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.

5 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably

6 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at

7 1227.

8 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain

9 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

10 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic

11 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

12 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a

13 formulaic recitation of the elements of a cause of action;” it must contain factual allegations

14 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555.

15 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the

16 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v.

17 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal

18 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as

19 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the

20 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236

21 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).

22 II. THE CIVIL RIGHTS ACT

23 To state a claim under § 1983, a plaintiff must demonstrate: (1) the violation of a federal

24 constitutional or statutory right; and (2) that the violation was committed by a person acting under

25 the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d

26 930, 934 (9th Cir. 2002). An individual defendant is not liable on a civil rights claim unless the

27 facts establish the defendant’s personal involvement in the constitutional deprivation or a causal

28 connection between the defendant’s wrongful conduct and the alleged constitutional deprivation.

1 See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44

2 (9th Cir. 1978). That is, plaintiff may not sue any official on the theory that the official is liable

3 for the unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 556 U.S. 662, 679

4 (2009). The requisite causal connection between a supervisor’s wrongful conduct and the

5 violation of the prisoner’s constitutional rights can be established in a number of ways, including

6 by demonstrating that a supervisor’s own culpable action or inaction in the training, supervision,

7 or control of his subordinates was a cause of plaintiff’s injury. Starr v. Baca, 652 F.3d 1202,

8 1208 (9th Cir. 2011).

9 III. PLAINTIFF’S AMENDED COMPLAINT

10 Plaintiff’s allegations are based on incidents that took place at High Desert State Prison

11 (“HDSP”). (ECF No. 11.) In his first claim, plaintiff alleges defendants M. Deforest and A.

12 Albrecht authored a false rules violation report (“RVR”) against plaintiff in retaliation for

13 plaintiff filing administrative grievances against defendants A. Albrecht, D. Jodin and M.

14 Murphy, which resulted in plaintiff being unlawfully held in administrative segregation (“ad seg”)

15 for 97 days. (ECF No. 11 at 5-10.) Plaintiff was found not guilty of the RVR on June 6, 2024.

16 (Id. at 9.) In addition to being housed in ad seg, plaintiff was deprived of good time credits; lost

17 eligibility for minimum custody; lost his job as a plumber; lost his wife to divorce because of the

18 false charges and possibility of getting more time in prison; could not be considered for 1170

19 resentencing for positive programming due to false charges; was placed on close custody status

20 for one year; and could not receive conjugal visits. (Id. at 10.)

21 In his second claim, plaintiff alleges that on September 19, 2022, plaintiff submitted a

22 grievance in which he requested that defendant R. St. Andre intervene to stop staff misconduct

23 and retaliation by defendants A. Albrecht, D. Jodin and M. Murphy. (Id. at 11.) In addition,

24 while plaintiff was in ad seg, he wrote to defendant R. St. Andre and requested release from ad

25 seg based on plaintiff’s right to file grievances. (Id. at 12.) Plaintiff contends defendant St.

26 Andre failed to correct the retaliatory misconduct. (Id.) Plaintiff cites the same injuries as those

27 set forth in claim one. (Id. at 14.)

28 ///

1 In his third claim, plaintiff alleges that defendants B. Jodin, M. Murphy, and A. Albrecht

2 improperly conducted a cell search by searching only plaintiff’s cell, and argues that if there was

3 an active investigation, defendants should have searched all the cells. (Id. at 15.) Plaintiff also

4 alleges that defendants B. Jodin, M. Murphy, and A. Albrecht retaliated against plaintiff for filing

5 a grievance concerning the September 8, 2022 cell search by removing all of plaintiff’s personal

6 property from his cell and throwing some of it over the tier into an orange bin rather than properly

7 gathering the property for alleged inspection for contraband. (Id.) Plaintiff also alleges he was

8 falsely charged with an RVR alleging plaintiff extorted peace officers using threats of staff

9 allegations and civil suits. (Id. at 15-18.) Plaintiff alleges that on January 10, 2023, defendants

10 A. Albrecht and D. Jodin summoned plaintiff to the HDSP program office to discuss plaintiff’s

11 grievances, where they secretly recorded the conversation with the malicious intent to falsely

12 accuse plaintiff of extortion. (Id. at 17-18.) As a result, plaintiff was placed in ad seg based on

13 false documents. Plaintiff reiterated his retaliation claim against defendant A. Albrecht from the

14 first claim. (Id. at 18-19.) Further, on January 23, 2023, while housed in ad seg, plaintiff

15 received another RVR authored by defendant C. Griffith, which could affect plaintiff’s term,

16 claiming plaintiff falsified a grievance plaintiff “filed on defendant A. Albrecht for falsely

17 logging a report against plaintiff to retaliate as defendant A. Albrecht stated she would ‘fuck us’

18 (plaintiff) on 9-14-22.” (Id. at 19-20.) Plaintiff’s grievance was granted, but he was still

19 punished for exercising his First Amendment rights. (Id. at 20.) Plaintiff alleges violations of the

20 First, Eighth, and Fourteenth Amendments, as well as libel/defamation, California Government

21 Code Sections 845.4 and Penal Code Sections 2600 and 1170. (Id. at 15, 20.) As injury, plaintiff

22 claims false reports were entered into the Strategic Offender Management System (“SOMS”)

23 with the intent to cause plaintiff harm and danger and to cover up misconduct; mental damages,

24 severe headaches and stress related issues due to retaliation. (Id.)

25 Finally, in his fourth claim, plaintiff alleges that on January 23, 2023, while housed in ad

26 seg, plaintiff was served an RVR (#726187) for “falsification of a document which could affect

27 term,” authored by defendant C. Griffith. (Id. at 21.) Plaintiff claims the allegedly false

28 document was a grievance (# 346850) filed by plaintiff and granted by the office of appeals.

1 Plaintiff claims this false RVR violated plaintiff’s access to the courts, and his right to file

2 grievances and be free from retaliation. (Id.) On December 30, 2023 [sic], plaintiff filed a

3 grievance (#346850) for a dangerous contraband RVR (#7223905) which was granted in

4 plaintiff’s favor, yet defendant filed the RVR against plaintiff after the office of appeals granted

5 plaintiff’s grievance. On February 19, 2023, plaintiff was found guilty of RVR #7262187 and

6 given restrictions for punitive punishment while already in ad seg. (Id. at 21-22.) Plaintiff

7 appealed RVR #7262187 and was found not guilty by the Associate Warden. (Id. at 22.)

8 Plaintiff alleges that defendant C. Griffith knowingly and intentionally entered into CDCR SOMS

9 a false report with the intent to inflict punitive punishment while plaintiff was already in ad seg,

10 “violating plaintiff’s protected conduct and due process of law.” (Id.) Plaintiff claims there was

11 no evidence to support the RVR. (Id.) Plaintiff alleges violations of the First, Eighth and

12 Fourteenth Amendments. (Id. at 21.)

13 As relief, plaintiff seeks a declaratory judgment, injunctive relief, and money damages.

14 (Id. at 23-26.)

15 IV. DISCUSSION

16 A. Eleventh Amendment Bars Official Capacity Claims

17 Plaintiff sues all of the named defendants in their individual and official capacities. (ECF

18 No. 11 at 2.) Claims for damages against the state, its agencies, or its officers for actions

19 performed in their official capacities are barred under the Eleventh Amendment, unless the state

20 waives its immunity. Kentucky v. Graham, 473 U.S. 159, 169 (1985). Section 1983 does not

21 abrogate the states’ Eleventh Amendment immunity from suit. See Quern v. Jordan, 440 U.S.

22 332, 344-45 (1979); see also Hafer v. Melo, 502 U.S. 21, 30 (1991) (clarifying that the Eleventh

23 Amendment does not bar suits against state officials sued in their individual capacities, nor does it

24 bar suits for prospective injunctive relief against state officials sued in their official capacities).

25 Therefore, plaintiff’s claims for monetary damages against all of the defendants in their official

26 capacities are barred by the Eleventh Amendment and must be dismissed.

27 ///

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1 B. Cognizable Claims

2 The Court reviewed plaintiff’s amended complaint and, for the limited purposes of

3 § 1915A screening, finds that it states the following potentially cognizable claims:

4 • Retaliation claims against defendants M. Deforest, A. Albrecht, and D. Jodin in

5 violation of the First Amendment (claims one and three) based on plaintiff’s

6 claims that M. Deforest, A. Albrecht and D. Jodin contributed to and authored a

7 false rules violation report (“RVR”) in 2023 against plaintiff in retaliation for

8 plaintiff filing administrative grievances against defendants A. Albrecht, D. Jodin

9 and M. Murphy.

10 • Retaliation claims against defendants D. Jodin, M. Murphy and A. Albrecht in

11 violation of the First Amendment, based on their actions in September 2022

12 (claim three).

13 • Eighth Amendment claims against defendants M. Deforest, A. Albrecht, and

14 D. Jodin based on plaintiff’s placement and retention in administrative

15 segregation in 2023 for 97 days based on the false RVR (claims one and three).

16 • Eighth Amendment claims against defendant R. St. Andre based on plaintiff’s

17 placement and retention in administrative segregation in January 2023 until his

18 release in April 2023, and failure to intervene to correct staff misconduct (claim

19 two).

20 See 28 U.S.C. § 1915A.

21 C. Noncognizable Claims

22 For the reasons stated below, the Court finds that the remainder of the amended complaint

23 does not state cognizable claims against defendants M. Deforest, A. Albrecht, D. Jodin,

24 M. Murphy, and R. St. Andre.

25 1. Claim One

26 Although plaintiff also cited a Fourteenth Amendment violation against defendants

27 M. Deforest and A. Albrecht, plaintiff set forth no facts supporting a Fourteenth Amendment

28 claim. To the extent he contends his retaliation claims also support a Fourteenth Amendment due

1 process claim, plaintiff is mistaken. A due process claim is subsumed by the First Amendment

2 and does not state a separate claim. See Albright v. Oliver, 510 U.S. 266, 273 (1994) (“Where a

3 particular Amendment provides an explicit textual source of constitutional protection against a

4 particular sort of government behavior, that Amendment, not the more generalized notion of

5 “substantive due process,” must be the guide for analyzing such a claim.”) (internal quotes and

6 citation omitted). Plaintiff also marked “access to courts” as an issue.1 But plaintiff identifies no

7 actual injury he sustained to his court access. Rather, plaintiff’s allegations in his first claim are

8 solely based on the First and Eighth Amendments. Thus, plaintiff’s Fourteenth Amendment and

9 access to the courts claim against defendants M. Deforest and A. Albrecht in plaintiff’s first claim

10 should be dismissed.

11 2. Claim Two

12 In the second claim, plaintiff also alleges violations of the First and Fourteenth

13 Amendments by defendant R. St. Andre. However, there are no allegations that defendant R. St.

14 Andre retaliated against plaintiff or violated plaintiff’s due process rights. Indeed, plaintiff

15 concedes defendant R. St. Andre did neither. (ECF No. 11 at 11.) Plaintiff’s allegations against

16 defendant R. St. Andre are based on alleged violations of the Eighth Amendment and

17 R. St. Andre’s alleged failure to intervene to correct staff misconduct. Thus, plaintiff’s First and

18 Fourteenth Amendment claims against defendant R. St. Andre in claim two should be dismissed.

19 3. Claim Three

20 a. No Equal Protection Claim

21 Plaintiff alleges his right to equal protection was violated when defendants B. Jodin, M.

22 Murphy, and A. Albrecht searched only plaintiff’s cell, and not all of the cells, which he alleges

23 was required if there was an active investigation for contraband. (ECF No. 11 at 15.)

24 1 Prisoners have a constitutional right of access to the courts. Lewis v. Casey, 518 U.S. 343, 346

(1996); Bounds v. Smith, 430 U.S. 817, 821 (1977), limited in part on other grounds by Lewis,

25 518 U.S. at 354. The right of access to the courts is limited to non-frivolous direct criminal

appeals, habeas corpus proceedings, and § 1983 actions, and requires a prisoner to show that he

26 suffered an “actual injury,” “actual prejudice with respect to contemplated or existing litigation,

such as the inability to meet a filing deadline or to present a claim.” See Lewis, 518 U.S. at 348-

27 49, 353 n.3, 354-55; see also Alvarez v. Hill, 518 F.3d 1152, 1155 n.1 (9th Cir. 2008) (noting that

“[f]ailure to show that a ‘non-frivolous legal claim had been frustrated’ is fatal” to a claim for

28 denial of access to legal materials) (citing Lewis, 518 U.S. at 353 & n.4).

1 The Equal Protection Clause of the Fourteenth Amendment requires that persons who

2 are similarly situated be treated alike. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,

3 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). “This does not mean, however,

4 that all prisoners must receive identical treatment and resources.” Hartmann v. California Dep’t

5 of Corr. & Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013) (citations omitted). Prisoners are not a

6 protected class for purposes of an equal protection claim. See Taylor v. Delatoore, 281 F.3d 844,

7 849 (9th Cir. 2002) (indigent prisoners are not a protected class for purposes of stating an equal

8 protection claim). Prisoners must provide “facts plausibly showing that the defendants acted with

9 an intent or purpose to discriminate against [them] based upon membership in a protected class.”

10 Id. (internal quotation marks and citations omitted). In the alternative, plaintiff must demonstrate

11 that similarly situated individuals were intentionally treated differently without a rational

12 relationship to a legitimate state purpose. Engquist v. Oregon Department of Agr., 553 U.S. 591,

13 601-02 (2008); Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); Lazy Y Ranch Ltd.

14 v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008); North Pacifica LLC v. City of Pacifica, 526 F.3d

15 478, 486 (9th Cir. 2008).

16 Here, plaintiff does not allege that he was a member of a protected class, or that his cell

17 was searched because of plaintiff’s protected status. Rather, plaintiff claims that the cell was

18 searched due to an alleged search for contraband. Although plaintiff appears to suggest that the

19 alleged contraband search was conducted under false pretenses, he includes no facts connecting

20 the search to plaintiff’s protected status or showing it was without a legitimate state purpose.

21 Plaintiff has not alleged facts demonstrating that he was intentionally discriminated against on the

22 basis of his membership in a protected class, or that he was intentionally treated differently than

23 other similarly situated inmates without a rational relationship to a legitimate state purpose.

24 Thus, plaintiff fails to state a claim for violation of his right to equal protection, and the equal

25 protection claim should be dismissed.

26 b. No Libel/Defamation Claim

27 Initially in claim three, plaintiff alleges violations of the First, Eighth and Fourteenth

28 Amendments, retaliation and “libel/defamation.” (ECF No. 11 at 15.) As noted above, the Court

1 found that plaintiff stated cognizable First and Eighth Amendment violations against defendants

2 M. Deforest, A. Albrecht, and D. Jodin. However, claims of defamation or libel do not rise to the

3 level of a federal constitutional violation. See Paul v. Davis, 424 U.S. 693, 699-701 (1976)

4 (holding defamation is not actionable under § 1983); Hernandez v. Johnson, 833 F.2d 1316, 1319

5 (9th Cir. 1987) (holding that libel and slander claims are precluded by Paul); Whatley v. Gray,

6 2018 WL 828200, at *2 (S.D. Cal. Feb. 8, 2018); Sadler v. Dutton, 2017 WL 3217119, at *6 (D.

7 Mont. June 1, 2017) (same), report and recommendation adopted, 2017 WL 3219479 (D. Mont.

8 July 28, 2017). Thus, plaintiff’s libel/defamation claims should be dismissed.

9 c. No State Law Claims

10 At the end of claim three, plaintiff writes “violating the plaintiff’s 1st, 8th, 14th

11 Amendment; Cal. Gov. Code 845.4; PC 2600, Section 1170.” (ECF No. 11 at 20.) But as

12 plaintiff was previously informed, criminal statutes do not give rise to civil liability. Allen v.

13 Gold Country Casino, 464 F.3d 1044, 1048 (9th Cir. 2006). Further, “[t]o the extent that the

14 violation of a state law amounts to the deprivation of a state-created interest that reaches beyond

15 that guaranteed by the federal Constitution, [s]ection 1983 offers no redress.” Sweaney v. Ada

16 County, 119 F.3d 1385, 1391 (9th Cir. 1997) (quoting Lovell v. Poway Unified Sch. Dist., 90

17 F.3d 367, 370 (9th Cir. 1996)); see also Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009)

18 (section 1983 claims must be premised on violation of federal constitutional right).

19 Finally, the Court declines to construe plaintiff’s allegations in claim three as attempting

20 to raise supplemental state law claims because plaintiff failed to allege compliance with the

21 California Government Claims Act as to each claim. See Cal. Gov’t Code § 810 et seq.

22 Thus, plaintiff’s Fourteenth Amendment, defamation/libel or other putative state law

23 claims should be dismissed without prejudice.

24 D. Unrelated Claims -- Claims Three and Four Against Defendant C. Griffith

25 Plaintiff’s claims against defendant C. Griffith took place on January 24, 2023, after the

26 retaliation claims against the remaining defendants, and involve a grievance and RVR that did not

27 involve the remaining defendants. Thus, plaintiff’s claims against defendant C. Griffith are not

28 properly raised in the same action. Rule 21 of the Federal Rules of Civil Procedure provides:

1 Misjoinder of parties is not a ground for dismissing an action. On

motion or on its own, the court may at any time, on just terms, add

2 or drop a party. The court may also sever any claim against a party.

3 Fed. R. Civ. P. 21. Rule 20(a) provides that all persons may be joined in one action as defendants

4 if “any right to relief is asserted against them jointly, severally, or in the alternative with respect

5 to or arising out of the same transaction, occurrence, or series of transactions or occurrences” and

6 “any question of law or fact common to all defendants will arise in the action.” Fed. R. Civ. P.

7 20(a)(2); see also George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (“Unrelated claims against

8 unrelated defendants belong in different suits”). If unrelated claims are improperly joined, the

9 court may dismiss them without prejudice. Fed. R. Civ. P. 21; 7 Alan Wright, Arthur Miller &

10 Mary Kay Kane, Richard Marcus, Federal Practice and Procedure § 1684 (3d ed. 2012); Michaels

11 Building Co. v. Ameritrust Co., 848 F.2d 674, 682 (6th Cir. 1988) (affirming dismissing under

12 Rule 21 of certain defendants where claims against those defendants did not arise out of the same

13 transaction or occurrences, as required by Rule 20(a)). Here, plaintiff’s putative claim against

14 defendant C. Griffith arose from a different incident involving a different grievance and different

15 RVR than the RVR resulting in his placement in ad seg in January 2023, as well as a different

16 defendant, and no question of fact involving defendant C. Griffith would be common to all of the

17 defendants named herein. Therefore, plaintiff’s claims against defendant C. Griffith are not

18 properly joined in this action.

19 Where parties have been misjoined, the court may drop a party or sever the claims against

20 that party. Fed. R. Civ. P. 21. “[D]istrict courts who dismiss rather than sever must conduct a

21 prejudice analysis, including ‘loss of otherwise timely claims if new suits are blocked by statutes

22 of limitations.’” Rush v. Sport Chalet, Inc., 779 F.3d 973, 975 (9th Cir. 2015) (quoting DirecTV,

23 Inc. v. Leto, 467 F.3d 842, 846-47 (3d Cir. 2006)).

24 Because 42 U.S.C. § 1983 does not have its own statute of limitations, district courts

25 apply California’s statute of limitations for personal injury actions and California’s laws

26 regarding equitable tolling, except to the extent any of these laws is inconsistent with federal law.

27 See Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004). California’s statute of limitations for

28 personal injury actions is two years. See Cal. Civ. Proc. Code § 335.1; Maldonado v. Harris, 370

1 F.3d 945, 954-55 (9th Cir. 2004). Such limitation period is statutorily tolled for a period of two

2 years for a person who is “imprisoned on a criminal charge, or in execution under the sentence of

3 a criminal court for a term less than for life.” Cal. Civ. Proc. Code § 352.1. Thus, a prisoner

4 serving a term less than life in California may have four years to file a federal claim pursuant to

5 section 1983. See Cato v. Darst, 2019 WL 2249636, at *2 (E.D. Cal. May 23, 2019), findings and

6 recommendations adopted, 2019 WL 13366552 (E.D. Cal. Aug. 2, 2019).

7 Here, because the unrelated claims against defendant C. Griffith are based on the

8 subsequent January 24, 2023 RVR, plaintiff will not be prejudiced by the dismissal of the

9 unrelated claims, without prejudice, from this action. According to CDCR records, plaintiff is

10 eligible for parole consideration in June 2026.2 Because plaintiff is not serving a sentence of life

11 without parole, he is entitled to the additional statutory tolling period of two years to file his

12 federal claim under section 1983. See Cato, 2019 WL 2249636, at *2. Thus, plaintiff may have

13 four years from the date his claim against defendant C. Griffith accrued to file a civil rights action

14 against defendant C. Griffith. Consequently, plaintiff may pursue such claim, if at all, in a

15 separate, timely filed action. See also George, 507 F.3d at 607 (“Unrelated claims against

16 unrelated defendants belong in different suits”).

17 Further, because the amended complaint does not clearly state a cognizable claim against

18 defendant C. Griffith, the Court finds that severance is inappropriate. Plaintiff’s allegations

19 against defendant Griffith remain unclear. Plaintiff does not allege that defendant Griffith issued

20 the false RVR in retaliation for plaintiff’s protected conduct. Rather, plaintiff vaguely alleges it

21 was issued in violation of due process, but includes no facts demonstrating how the RVR violated

22 due process. (ECF No. 11 at 20.) In addition, plaintiff confirms that he subsequently appealed

23 the RVR and was found not guilty. Thus, it is unclear what injury plaintiff may have sustained

24 from the allegedly false RVR. Plaintiff claims defendant Griffith entered the false report into

25 2 This information was obtained from the CDCR Inmate Locator website,

https://ciris.mt.cdcr.ca.gov/ (accessed June 17, 2025). The Court may take judicial notice of

26

public records available on online inmate locators. See United States v. Basher, 629 F.3d 1161,

27 1165 (9th Cir. 2011) (taking judicial notice of Bureau of Prisons’ inmate locator available to the

public); see also Foley v. Martz, 2018 WL 5111998, at *1 (S.D. Cal. Oct. 19, 2018) (taking

28 judicial notice of CDCR’s inmate locator).

1 SOMS, but it is unclear whether the report was removed following the grant of plaintiff’s

2 grievance by the office of appeals. Thus, this Court finds severance is not an appropriate remedy.

3 See Coleman, 232 F.3d at 1297 (courts have broad discretion regarding severance).

4 Accordingly, the Court finds that plaintiff’s unrelated claims against defendant C. Griffith

5 should be dismissed without prejudice.

6 V. PLAINTIFF’S OPTIONS

7 A. First Option

8 Plaintiff may proceed forthwith to serve defendants M. Deforest, R. St. Andre, D. Jodin,

9 M. Murphy and A. Albrecht and pursue his claims against only those defendants, as set forth

10 above, or he may delay serving any defendant and attempt to rectify the deficiencies identified

11 above. If plaintiff elects to proceed forthwith against defendants M. Deforest, R. St. Andre, and

12 D. Jodin, M. Murphy and A. Albrecht, against whom he stated potentially cognizable claims for

13 relief, then within thirty days plaintiff must so elect on the appended form. In this event, the

14 Court will construe plaintiff’s election as consent to dismissal of (a) the claims for money

15 damages against all the named defendants in their official capacities, (b) the unrelated claim

16 against defendant C. Griffith, and (c) the noncognizable claims against the defendants identified

17 above, all without prejudice. Under this option, plaintiff does not need to file a second amended

18 complaint.

19 B. Other Option

20 Or, plaintiff may delay serving any defendant and attempt to state additional cognizable

21 claims against defendants M. Deforest, R. St. Andre, D. Jodin, M. Murphy and A. Albrecht. If

22 plaintiff elects to attempt to file a second amended complaint, he has thirty days to do so.

23 Any second amended complaint must show the federal court has jurisdiction, the action is

24 brought in the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It

25 must contain a request for particular relief. Plaintiff must identify as a defendant only persons

26 who personally participated in a substantial way in depriving plaintiff of a federal constitutional

27 right. See Johnson, 588 F.2d at 743 (a person subjects another to the deprivation of a

28 constitutional right if he does an act, participates in another’s act, or omits to perform an act he is

1 legally required to do that causes the alleged deprivation).

2 A district court must construe a pro se pleading “liberally” to determine if it states a claim

3 and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an

4 opportunity to cure them. See Lopez, 203 F.3d at 1130-31. While detailed factual allegations are

5 not required, “[t]hreadbare recitals of the elements of a cause of action, supported by mere

6 conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678 (citing Bell Atlantic, 550 U.S.

7 at 555). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim to

8 relief that is plausible on its face.’” Ashcroft, 556 U.S. at 678 (quoting Bell Atlantic, 550 U.S. at

9 570).

10 A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the

11 defendant is liable for the misconduct alleged. The plausibility

standard is not akin to a “probability requirement,” but it asks for

12 more than a sheer possibility that a defendant has acted unlawfully.

Where a complaint pleads facts that are merely consistent with a

13 defendant’s liability, it stops short of the line between possibility and

plausibility of entitlement to relief.

14

15 Ashcroft, 566 U.S. at 678 (citations and quotation marks omitted). Although legal conclusions

16 can provide the framework of a complaint, they must be supported by factual allegations, and are

17 not entitled to the assumption of truth. Id.

18 An amended complaint must be complete in itself without reference to any prior pleading.

19 Local Rule 220; see Ramirez v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015)

20 (“an ‘amended complaint supersedes the original, the latter being treated thereafter as non-

21 existent.’” (internal citation omitted)). Once plaintiff files a second amended complaint, the

22 original and amended complaints are superseded. Plaintiff is not granted leave to add new

23 claims or new defendants. In addition, because plaintiff is pursuing claims related to incidents

24 that occurred in two different years, plaintiff should specifically identify the date of the act or

25 omission as to each named defendant.

26 VI. ORDERS

27 Accordingly, IT IS HEREBY ORDERED that:

28 1. The allegations in the amended complaint are sufficient at least to state potentially

1 | cognizable claims as follows: (a) First Amendment retaliation claims against defendants M.

2 || Deforest, A. Albrecht, and D. Jodin (claims one and three, 2023); (b) First Amendment retaliation

3 | claims against defendants D. Jodin, M. Murphy and A. Albrecht (claim three, 2022); (c) Eighth

4 | Amendment claims against defendants M. Deforest, A. Albrecht, and D. Jodin (claims one and

5 || three, 2023), and (d) Eighth Amendment claim against defendant R. St. Andre and failure to

6 || intervene to correct staff misconduct (claim two). See 28 U.S.C. § 1915A. If plaintiff chooses to

7 || proceed solely as to such claims, plaintiff shall so indicate on the attached form and return it to

8 | the court within thirty days from the date of this order. In this event, the Court will construe

9 || plaintiffs election to proceed forthwith as consent to an order dismissing the defective claims

10 || identified above without prejudice.

11 2. The following claims are dismissed with leave to amend: (a) plaintiff’s Fourteenth

12 || Amendment and access to the courts claim raised against defendants M. Deforest and A. Albrecht

13 || (claim one); (b) First and Fourteenth Amendment claims against defendant R. St. Andre (claim

14 || two); and (c) equal protection claims against defendants B. Jodin, M. Murphy, and A. Albrecht

15 | (claim three). Within thirty days of service of this order, plaintiff may file a second amended

16 || complaint to attempt to remedy the deficiencies described above. Plaintiff is not required to

17 | amend.

18 3. Failure to comply with this order will result in a recommendation that this action

19 || proceed solely on the cognizable claims identified above.

20

21 | Dated: June 23, 2025 A aA

Aan Spe |

CHI SOO KIM

23 UNITED STATES MAGISTRATE JUDGE

24 | MAvrig0420.1402

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1

2

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4 UNITED STATES DISTRICT COURT

5 FOR THE EASTERN DISTRICT OF CALIFORNIA

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7 ATHELSTAN A. WRIGHT, No. 2:24-cv-0420 CSK P

8 Plaintiff,

9 v. NOTICE OF ELECTION

10 M. DEFOREST, et al.,

11 Defendants.

12

13

Plaintiff elects to proceed as follows:

14

______ First, plaintiff opts to proceed with the following claims: (a) First Amendment

15 retaliation claims against defendants M. Deforest, A. Albrecht, and D. Jodin

(claims one and three, 2023); (b) First Amendment retaliation claims against

16 defendants D. Jodin, M. Murphy and A. Albrecht (claim three, 2022); (c) Eighth

Amendment claims against defendants M. Deforest, A. Albrecht, and D. Jodin

17 (claims one and three, 2023), and (d) Eighth Amendment claim against defendant

R. St. Andre and failure to intervene to correct staff misconduct (claim two).

18 Second, under this option, plaintiff consents to dismissal of the following claims:

(a) plaintiff’s claims for money damages against defendants in their official

19 capacities; (b) plaintiff’s Fourteenth Amendment and access to the courts claim

raised against defendants M. Deforest and A. Albrecht (claim one); (c) First and

20 Fourteenth Amendment claims against defendant R. St. Andre (claim two); (d)

equal protection claims against defendants B. Jodin, M. Murphy, and A. Albrecht

21 (claim three); (e) libel/defamation claims (claim three); and (f) state law claims

(claim three); and (g) plaintiff’s unrelated claims against defendant C. Griffith, all

22 without prejudice.

23 OR

24 _____ Plaintiff opts to file a second amended complaint and delay service of process.

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DATED: ______________ _______________________________

27 Plaintiff

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