Barocio

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 BRENDAN NGEHSI NEWANFORBI, No. 2:26-cv-0191 DJC CSK P

12 Plaintiff,

13 v. ORDER

14 K. BAROCIO, et al.,

15 Defendants.

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17 Plaintiff is a former state prisoner proceeding pro se. Plaintiff seeks relief pursuant to

18 42 U.S.C. § 1983 and requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

19 This proceeding was referred to this Court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

20 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a).

21 Accordingly, the request to proceed in forma pauperis is granted.

22 As discussed below, plaintiff’s complaint is dismissed, and plaintiff is granted leave to file

23 an amended complaint.

24 I. SCREENING STANDARDS

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

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

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

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

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

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

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

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

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

6 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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

8 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.

9 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably

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

11 1227.

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

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

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

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

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

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

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

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

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

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

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

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

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

25 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).

26 II. THE CIVIL RIGHTS ACT

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

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

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

2 930, 934 (9th Cir. 2002). An individual defendant is not liable on a civil rights claim unless the

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

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

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

6 (9th Cir. 1978). That is, plaintiff may not sue any official on the theory that the official is liable

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

8 (2009). The requisite causal connection between a supervisor’s wrongful conduct and the

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

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

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

12 1208 (9th Cir. 2011).

13 III. PLAINTIFF’S COMPLAINT

14 In his verified complaint, plaintiff claims he does not challenge the fact or duration of his

15 underlying conviction, and alleges the following. (ECF No. 1 at 1.) In early 2020, plaintiff filed

16 a grievance seeking merit credits based on a heroic act plaintiff performed while incarcerated at

17 San Quentin. (Id. at 3.) The grievance advanced to the third level of review, involving the Board

18 of Parole Hearings (“BPH”). Before the hearing, in the BPH conference room, plaintiff’s

19 counselor defendant Barocio “struggled with the required technology setup, causing visible

20 irritation from BPH personnel.” (Id.) This incident humiliated K. Barocio in front of her

21 superiors and peers and created personal animus toward plaintiff. (Id.) The temporal proximity

22 between such humiliation and subsequent adverse actions raises an inference of retaliatory

23 motive. (Id.)

24 On July 9, 2020, CDCR granted a “One-Time Positive Programming Credit” (“PPC”) of

25 12 weeks (84 days) to all eligible inmates who did not incur a serious rules violation between

26 March 1 and July 5, 2020, and required case records services staff to enter the credit into SOMS

27 and the credit “shall be applied by August 1, 2020.” (ECF No. 1 at 4.) Plaintiff sustained no

28 rules violations during that period and should have been provided the credit. Despite his

1 eligibility, defendant Barocio “refused or failed to apply the PPC” to plaintiff’s record. (Id.)

2 Defendant Barocio’s refusal deviated from standard practice, and the fact K. Barocio applied the

3 credit to plaintiff’s cellmate’s record demonstrates that “no rational basis existed for the

4 disparity” except retaliation for plaintiff’s prior grievance and the associated humiliation K.

5 Barocio felt during the technology setup. (Id.)

6 Plaintiff alleges that defendant Hernandez, a case records analyst, knowingly perpetuated

7 the error by failing to apply or correct application of the credit to plaintiff’s record. Plaintiff

8 promptly filed a grievance concerning the deprivation, pointing out his cellmate’s credit to show

9 the disparate treatment. Defendant John Doe, as unit supervisor/sergeant, reviewed the grievance

10 and denied it, stating “You have already been released from prison . . . it doesn’t matter

11 anyways.” (Id.) Such response ratified the misconduct of defendants K. Barocio and Hernandez,

12 and failed to correct the error. As a result, plaintiff suffered extended custody until December 2,

13 2020, and “an inflated parole term ending December 2, 2030,” 12 weeks or 84 days later than

14 warranted. (Id. at 5.) Each subsequent parole decision has relied on the erroneous date,

15 constituting a new constitutional injury and perpetuating the violation. (Id.) As to all named

16 defendants, plaintiff alleges retaliation, a Fourteenth Amendment equal protection violation (class

17 of one), and a procedural due process violation based on the failure of the grievance process to

18 remedy the application of the credit.

19 Plaintiff seeks prospective injunctive relief prohibiting CDCR from continuing to rely on

20 the continuing discharge date (“CDD”) or an order directing CDCR to recalculate plaintiff’s

21 credits consistent with the July 9, 2020 PPC policy, and money damages. (Id. at 8.)

22 IV. DISCUSSION1

23 A. Retaliation Claims

24 Prisoners have a First Amendment right to file grievances against prison officials and to

25 be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012)

26 (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). A viable retaliation claim in the

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1 Because the statute of limitations is an affirmative defense, this Court does not address

28 plaintiff’s arguments concerning the limitations period.

1 prison context has five elements: “(1) An assertion that a state actor took some adverse action

2 against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action

3 (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not

4 reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68

5 (9th Cir. 2005). A retaliatory motive may be shown by the timing of the allegedly retaliatory act

6 or other circumstantial evidence, as well as direct evidence. Bruce v. Ylst, 351 F.3d 1283, 1288-

7 89 (9th Cir. 2003); McCollum v. Ca. Dep’t of Corr. And Rehab., 647 F.3d 870, 882 (9th Cir.

8 2011). Circumstantial evidence usually includes “(1) proximity in time between protected speech

9 and the alleged retaliation; (2) [that] the [defendant] expressed opposition to the speech; [or]

10 (3) other evidence that the reasons proffered by the [defendant] for the adverse . . . action were

11 false and pretextual.” Id. (quoting Allen v. Iranon, 283 F.3d 1070, 1077 (9th Cir. 2002))

12 (quotation marks omitted). Mere speculation that a defendant acted out of retaliation is not

13 sufficient. Wood v. Yordy, 753 F.3d 899, 904 (9th Cir. 2014) (citing cases).

14 1. Defendant K. Barocio

15 Plaintiff’s retaliation claim against defendant K. Barocio fails because plaintiff alleges no

16 facts demonstrating that the personal animus plaintiff describes was caused by the filing of his

17 grievance; rather, he states the animus was caused by the technological difficulties K. Barocio

18 encountered during the hearing causing her humiliation in front of the irritated BPH members.

19 That this took place during a hearing does not indicate that the resulting animus was motivated by

20 plaintiff’s protected conduct in filing a grievance some time prior to that hearing. Plaintiff’s

21 speculation and conclusion that defendant K. Barocio’s subsequent conduct was motivated by a

22 desire to retaliate does not suffice to state a claim. See Pratt v. Rowland, 65 F.3d 802, 808 (9th

23 Cir. 1995) (noting that plaintiff’s “sheer speculation” that defendants had knowledge of his

24 protected conduct was insufficient to show retaliatory intent); Frazier v. Dubois, 922 F.2d 560,

25 562 n.1 (10th Cir. 1990) (“Mere allegations of constitutional retaliation will not suffice; plaintiffs

26 must rather allege specific facts showing retaliation because of the exercise of the prisoner’s

27 constitutional rights.”). In addition, while plaintiff alleges there is a temporal link, plaintiff’s

28 complaint does not provide the date of the hearing at which the alleged humiliation occurred.

1 Plaintiff states he filed his grievance seeking the heroic merit credit “in early 2020,” which

2 progressed to the third level review involving the BPH, but K. Barocio “refused or failed to apply

3 the PPC” some time after July 9, 2020. Plaintiff must allege facts showing a nexus between his

4 conduct protected by the First Amendment and the alleged retaliatory act. See Brodheim, 584

5 F.3d at 1271 (a plaintiff must show that his protected conduct was the substantial or motivating

6 factor behind the defendant’s conduct). Plaintiff’s allegations as to defendant K. Barocio fail to

7 demonstrate a discriminatory motive reasonably connected to plaintiff’s conduct protected under

8 the First Amendment.

9 2. Defendant C. Hernandez

10 Plaintiff’s complaint alleges no facts demonstrating that the omissions of C. Hernandez

11 were intentional or prompted by retaliatory motive. Plaintiff points to no facts tying C.

12 Hernandez to the incident that took place in early 2020. Plaintiff speculates that defendant C.

13 Hernandez “received or had access to Barocio’s inputs,” but plaintiff sets forth no facts

14 supporting such statement. Plaintiff fails to state a cognizable retaliation claim against defendant

15 C. Hernandez.

16 3. Defendant John Doe

17 Although plaintiff does not know the name of this unit supervisor/sergeant, plaintiff

18 cannot state a cognizable retaliation claim against him. “[T]he denial of a grievance or appeal

19 ‘neither constitutes an adverse action that is more than de minimis nor is it sufficient to deter a

20 prisoner of ‘ordinary firmness’ from further First Amendment activities.” Chacon v. Diaz, 2020

21 WL 7214292, at *5 (C.D. Cal. Sept. 28, 2020) (quoting Dicey v. Hanks, 2015 WL 4879627, at *5

22 (E.D. Cal. Aug. 14, 2015) (collecting cases and denying leave to amend because “denial of a

23 grievance does not constitute an adverse action”), report and recommendation adopted, 2015 WL

24 6163444 (E.D. Cal. Oct. 15, 2015)); see also Allen v. Kernan, 2018 WL 2018096, at *7 (S.D. Cal.

25 Apr. 30, 2018) (same), aff’d, 771 F. App’x 407 (9th Cir. 2019). Thus, defendant John Doe’s role

26 in denying plaintiff’s grievance does not state a cognizable retaliation claim.

27 B. Equal Protection

28 In his second claim, plaintiff argues that he and his cellmate were similarly situated: same

1 counselor (defendant K. Barocio), same eligibility, same facility, no disqualifying rules

2 violations, and cellmate was not engaged in protected grievance activity. (ECF No. 1 at 7.)

3 Plaintiff contends the only difference is that plaintiff filed a grievance following the humiliating

4 BPH escort incident, and did not receive the credit; plaintiff’s cellmate did not file a grievance,

5 and he did receive the credit. (Id.) Plaintiff claims defendants offered no penological or other

6 reason for the disparate treatment. (Id.)

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

8 similarly situated be treated alike. City of Cleburne Texas v. Cleburne Living Center, 473 U.S.

9 432, 439 (1985), abrogated on other grounds as explained in Galbraith v. County of Santa Clara,

10 307 F.3d 1119, 1125-26 (9th Cir. 2002). A Section 1983 claim predicated on an equal protection

11 violation may be alleged, in pertinent part, under two theories. First, a plaintiff may state an

12 equal protection claim by alleging that he was intentionally discriminated against based upon his

13 membership in a protected class. See, e.g., Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th

14 Cir. 2001), implicitly abrogated in part on other grounds as explained in Galbraith, 307 F.3d at

15 1125-26;2 see also Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th Cir. 2005).

16 Alternatively, if the challenged action did not involve a suspect classification, a plaintiff

17 may still state an equal protection claim essentially by alleging that: (1) the plaintiff is a member

18 of an identifiable class; (2) the plaintiff was intentionally treated differently from others similarly

19 situated; and (3) there is no rational basis for the difference in treatment. Village of Willowbrook

20 v. Olech, 528 U.S. 562, 564 (2000); Engquist v. Oregon Department of Agr., 553 U.S. 591, 601-

21 02 (2008); SeaRiver Maritime Financial Holdings, Inc. v. Mineta, 309 F.3d 662, 679 (9th Cir.

22 2002).

23 Here, plaintiff’s allegations are raised under the class of one theory. Plaintiff’s allegations

24 do not demonstrate that defendant Barocio intentionally denied plaintiff the credits. Indeed,

25 plaintiff alleges that defendant Barocio “refused or failed to apply the PPC” to plaintiff’s record.

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27 2 See, e.g., Cortez v. Klique Car Club, Inc., 2024 WL 988374, at *1 (C.D. Cal. Mar. 6, 2024).

Galbraith was abrogated on other grounds by Twombly, 550 U.S. 544. See, e.g., Higa v.

28 Kobayashi, 2020 WL 2027290, at *4 n.4 (D. Hawaii Apr. 27, 2020).

1 (ECF No. 1 at 4.) There are no facts demonstrating C. Hernandez intentionally denied plaintiff

2 the credits. Plaintiff’s putative equal protection claim against defendant John Doe fails for the

3 same reason. This claim is dismissed with leave to amend.

4 C. Procedural Due Process

5 Plaintiff alleges that the grievance process failed to address the merits of plaintiff’s claim.

6 (ECF No. 1 at 7.) The Due Process Clause protects plaintiff against the deprivation of liberty

7 without due process under the law. Wilkinson v. Austin, 545 U.S. 209, 221 (2005). However,

8 there is no stand-alone due process claim for the prison grievance process itself. Ramirez v.

9 Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). A

10 prison official’s denial of a grievance does not itself violate the constitution. Evans v. Skolnik,

11 637 F. App’x 285, 288 (9th Cir. 2015). Thus, the denial of plaintiff’s grievances cannot

12 constitute a due process violation. See, e.g., Bradway v. Rao, 2020 WL 8919180, at *1 (E.D. Cal.

13 July 15, 2020); Daniels v. Aguillera, 2018 WL 558658, at *1 (E.D. Cal. Jan. 24, 2018), report and

14 recommendation adopted, 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 violated by

16 ignoring or failing to properly process prison grievances.”); Wright v. Shannon, 2010 WL

17 445203, at *5 (E.D. Cal. 2010). Therefore, plaintiff cannot state a cognizable civil rights claim

18 based on the failure of the grievance process to grant plaintiff the relief he sought. Plaintiff’s

19 third claim is also dismissed.

20 V. LEAVE TO AMEND

21 The Court finds the allegations in plaintiff’s complaint so vague and conclusory that it is

22 unable to determine whether the current action is frivolous or fails to state a claim for relief. The

23 Court determines that the complaint does not contain a short and plain statement as required by

24 Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint

25 must give fair notice and state the elements of the claim plainly and succinctly. Jones v. Cmty.

26 Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some

27 degree of particularity overt acts which defendants engaged in that support plaintiff's claim. Id.

28 Because plaintiff failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2), the complaint

1 must be dismissed. However, the Court grants plaintiff leave to file an amended complaint.

2 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions

3 about which he complains resulted in a deprivation of plaintiff’s constitutional rights. See e.g.,

4 West, 487 U.S. at 48. Also, the complaint must allege in specific terms how each named

5 defendant is involved. Rizzo v. Goode, 423 U.S. 362, 371 (1976). There can be no liability

6 under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant’s

7 actions and the claimed deprivation. Rizzo, 423 U.S. at 371; May v. Enomoto, 633 F.2d 164, 167

8 (9th Cir. 1980). Furthermore, vague and conclusory allegations of official participation in civil

9 rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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

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

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

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

14 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing

15 Twombly, 550 U.S. at 555). Plaintiff must set forth “sufficient factual matter, accepted as true, to

16 ‘state a claim to relief that is plausible on its face.’” Ashcroft, 556 U.S. at 678 (quoting Bell

17 Atlantic Corp., 550 U.S. at 570).

18 A claim has facial plausibility when the plaintiff pleads factual

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

19 defendant is liable for the misconduct alleged. The plausibility

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

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

Where a complaint pleads facts that are merely consistent with a

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

plausibility of entitlement to relief.

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Ashcroft, 556 U.S. at 678 (citations and quotation marks omitted). Although legal conclusions

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

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not entitled to the assumption of truth. Id.

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In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to

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make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. This requirement exists

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1 because, as a general rule, an amended complaint supersedes the original complaint. See Ramirez

2 v. Cnty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint

3 supersedes the original, the latter being treated thereafter as non-existent.’” (internal citation

4 omitted)). Once plaintiff files an amended complaint, the original pleading no longer serves any

5 function in the case. Therefore, in an amended complaint, as in an original complaint, each claim

6 and the involvement of each defendant must be sufficiently alleged. Plaintiff is not granted

7 leave to add new claims or new defendants.

8 VI. REQUEST FOR E-MAIL NOTIFICATION

9 On January 22, 2026, plaintiff filed a request for email notification of docket activity.

10 (ECF No. 3.) Plaintiff confirms that he does not seek permission to file documents through the

11 CM/ECF system, and will continue to file documents in paper format. Plaintiff’s email address is

12 bnn.cdl@gmail.com.

13 The Court is amenable to allowing plaintiff to receive service of documents by electronic

14 means and grants his request. Thus, the Clerk is directed to configure plaintiff’s account so that

15 he will receive immediate email notifications when documents are filed in the case. In doing so,

16 plaintiff consents to receive service of documents electronically and waives the right to receive

17 service by first class mail under Rule 5(b)(2)(D) of the Federal Rules of Civil Procedure.

18 VII. CONCLUSION

19 Accordingly, IT IS HEREBY ORDERED that:

20 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted.

21 2. Plaintiff’s request to receive email notifications when documents are filed in this case

22 (ECF No. 3) is granted. The Clerk of the Court is directed to configure plaintiff’s account so that

23 he will receive immediate email notifications to bnn.cdl@gmail.com when documents are filed in

24 the case. Plaintiff consents to receive service of documents electronically and waives the right to

25 receive service by first class mail under Rule 5(b)(2)(D) of the Federal Rules of Civil Procedure.

26 3. Plaintiff’s complaint is dismissed.

27 4. Within thirty days from the date of this order, plaintiff shall complete the attached

28 Notice of Amendment and submit the following documents to the court:

] a. The completed Notice of Amendment; and

2 b. An original of the Amended Complaint.

3 || Plaintiff's amended complaint shall comply with the requirements of the Civil Rights Act, the

4 || Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must

5 || also bear the docket number assigned to this case and must be labeled ““Amended Complaint.”

6 || Failure to file an amended complaint in accordance with this order may result in the dismissal of

7 || this action.

8

9 || Dated: May 18, 2026 4 aA

10 \ Aaa spe

CHI SOO KIM

i UNITED STATES MAGISTRATE JUDGE

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

10

11 BRENDAN NGEHSI NEWANFORBI, No. 2:26-cv-0191 DJC CSK P

12 Plaintiff,

13 v.

NOTICE OF AMENDMENT

14 K. BAROCIO, et al.,

15 Defendants.

16

17 Plaintiff submits the following document in compliance with the court’s order filed

18 on______________ (date).

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20 Amended Complaint

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22

(Check this box if submitting an Amended Complaint)

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24

25 DATED:

________________________________

26 Plaintiff

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