The opinion
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3 UNITED STATES DISTRICT COURT
4 NORTHERN DISTRICT OF CALIFORNIA
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6 STEVEN BROOKS, K16234, Case No. 25-cv-00720-CRB (PR)
7 Plaintiff, ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO
8 v. DISMISS WITH LEAVE TO AMEND
9 GUIMMARA BERRY, et al., (ECF Nos. 25, 30 & 31)
10 Defendant(s).
11 On September 15, 2025, Plaintiff Steven Brooks, a state prisoner incarcerated at San
12 Quentin Rehabilitation Center (SQRC), filed a pro se First Amended Complaint (FAC) under 42
13 U.S.C. § 1983 alleging that Guimmara Berry, the SQRC public information officer, retaliated
14 against him for his role in the editorial content in the prison paper that was critical of prisons and
15 for his filing prison grievances by firing him from his job as editor-in-chief of the San Quetin
16 News, falsely charging him with a RVR for engaging in an overfamiliar sexual relationship with a
17 prison employee, and banning him from the education complex where the media center is located.
18 Plaintiff further alleges that SQRC staff members D. Schlosser, J. Fernandez, T. Reynolds, E.
19 Patao, T. Johnson, Y. Franco and F. Rodriguez helped further Berry’s retaliation against him by
20 sustaining Berry’s initial false RVR and/or by concocting a series of further false charges against
Plaintiff to keep him from the media center and from regaining his job as editor-in-in chief of the
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San Quentin News and/or by falsely interfering with Plaintiff seeking other employment.
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On October 30, 2025, the Court screened the FAC and found that, liberally construed,
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Plaintiff’s allegations appear to state arguably cognizable First Amendment retaliation claims
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under § 1983 (and related state law claims under § 1367) against Berry, Schlosser, Fernandez,
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Reynolds, Patao, Franco and Rodriguez, and ordered them (Defendants) served.1
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1 The Court dismissed Plaintiff’s due process and intentional racial discrimination claims
1 Currently before the Court of decision is Defendants’ motion to dismiss the FAC under
2 Federal Rule of Civil Procedure 12(b)(6) on four separate grounds.2 First, Defendants argue that
3 Plaintiff’s claims seeking damages for actions committed by Defendants in their official capacities
4 are barred by the Eleventh Amendment. Second, Defendants argue that Plaintiff does not properly
5 state a claim for First Amendment retaliation. Third, Defendants argue that, even if Plaintiff states
6 a retaliation claim, they are protected from liability due to qualified immunity. And fourth,
7 Defendants argue that because Plaintiff does not allege compliance with the California Tort
8 Claims Act, his state law claims under § 1367 should be dismissed. Plaintiff has filed an
9 opposition, and Defendants have filed a reply.
Plaintiff recently filed a motion for leave to file a second amended complaint to add two
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more defendants to this action, and a motion for preliminary injunctive relief reinstating his access
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to prison media vocation programs.
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I. BACKGROUND
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Plaintiff has been a freelance journalist since the summer of 2020. FAC ¶ 14. In August
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2021, he began working as a reporter for the San Quentin News (SQN), which he describes as a
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“publication written and produced by incarcerated people.” Id. In February 2023, Plaintiff
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became editor-in-chief of the SQN. Id. In that role, Plaintiff wrote and oversaw the publication of
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articles focused on promoting prison safety, and some of these articles were seen as criticizing
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prison administrators. Id. ¶ 15. In response, Plaintiff alleges that Defendant Berry told him that
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he was “going too hard in the paint” and pressured him to “tone down” his reporting. Id. ¶ 16.
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Independent of his work for the SQN, Plaintiff helped produce a prison reform report for
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The People in Blue (TPIB), an organization of incarcerated individuals that Plaintiff co-founded.
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Id. ¶ 17. Plaintiff alleges that the Reimagine San Quentin Initiative, which was established by a
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Governor-created advisory council, adopted the TPIB report. Id. Plaintiff alleges that Berry
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2 Defendant Schlosser passed away on July 11, 2025, before Plaintiff filed his FAC adding
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Schlosser and other additional defendants, see Mot. to Dismiss (ECF No. 25) at 1 n.1, and Plaintiff
1 disliked TPIB and accused Plaintiff of circumventing her authority by issuing the report without
2 seeking prior approval from her. Id.
3 On December 8, 2023, Berry fired Plaintiff from his role as editor-in-chief of the SQN. Id.
4 ¶ 16. Plaintiff alleges that the firing was retaliation for exercising his First Amendment rights. Id.
5 ¶ 18. In additional retaliation to justify the firing, Plaintiff alleges that Berry “fabricated a false
6 128-B classification chrono and a 115 Rule Violation Report (RVR), alleging that Plaintiff was in
7 a romantic relationship with [an] employee and clinical psychologist named Kathryn Rosenberg.”
8 Id. These accusations were also used to “permanently ban [Plaintiff] from participation in any
9 media-related rehabilitative programming.” Id. ¶ 19.3
10 Plaintiff alleges that after he filed a grievance challenging his termination, Berry told him,
11 “You shouldn’t have grieved me,” and proceeded to retaliate against him by instructing other
12 prison officials to prevent Plaintiff from entering the education area, although according to
13 Plaintiff, “[e]ducation is a common area in the prison.” Id. ¶¶ 20–21.
14 Plaintiff further alleges that Defendants Fernandez, Reynolds, Patao, Johnson, Franco and
15 Rodriguez helped further Berry’s retaliation against Plaintiff by sustaining Berry’s initial false
16 RVR and/or by concocting a series of further false charges against Plaintiff to keep him from the
17 media center and from regaining his job as editor-in-in chief of the SQN and/or by falsely
18 interfering with Plaintiff seeking other employment. See id. ¶¶ 21–34.
19 II. STANDARD OF REVIEW
20 Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss for a “failure
21 to state a claim upon which relief can be granted.” “To survive a motion to dismiss, a complaint
22 must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
23 on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
24 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual
25 content that allows the court to draw the reasonable inference that the defendant is liable for the
26 misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556). “The plausibility standard is not
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1 akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant
2 has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).
3 III. DISCUSSION
4 A. Official-Capacity Damages Claims
5 Plaintiff sues each defendant in his or her “individual and official capacity.” FAC ¶¶ 5–13.
6 Defendants note that the Eleventh Amendment prohibits official capacity monetary claims and
7 argue that Plaintiff’s official-capacity claims for damages should be dismissed. The Court agrees.
8 “Claims under § 1983 are limited by the scope of the Eleventh Amendment.” Doe v.
9 Lawrence Livermore Nat’l Lab., 131 F.3d 836, 839 (9th Cir. 1997). The Supreme Court has held
10 that, because of the Eleventh Amendment, “state officials ‘acting in their official capacities’ are
11 outside the class of ‘persons’ subject to liability under” § 1983. Hafer v. Melo, 502 U.S. 21, 22–
12 23 (1991) (quoting Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)). A state prison
13 official sued for damages in his or her official capacity is therefore entitled to Eleventh
14 Amendment immunity.
15 To the extent that Plaintiff seeks damages for acts committed by Defendants in their
16 official capacities, the claims are dismissed with prejudice. But because state officials sued in
17 their individual capacities are not entitled to similar immunity, Plaintiff may continue with his
18 claims for damages for acts committed by Defendants in their individual capacities. See id. at 23.
19 B. First Amendment Retaliation Claims
20 To state a claim of First Amendment retaliation in the prison context, a plaintiff must
21 allege: “(1) [a]n assertion that a state actor took some adverse action against an inmate (2) because
22 of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of
23 his First Amendment rights, and (5) the action did not reasonably advance a legitimate
24 correctional goal.” Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) (quoting Rhodes v.
25 Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005)).
26 Defendants dispute the sufficiency of Plaintiff’s allegations regarding the fourth prong of a
27 viable First Amendment retaliation claim. They argue that Plaintiff fails to allege that any of
1 inquiry for the fourth prong of the Rhodes test is not whether Plaintiff was personally chilled, but
2 rather whether “a person of ordinary firmness” would have been chilled by the defendants’ alleged
3 conduct. Rhodes, 408 F.3d at 568 (quoting Mendocino Envtl. Ctr. v. Mendocino Cnty., 192 F.3d
4 1283, 1300 (9th Cir. 1999)). And here, Defendants’ alleged conduct would clearly chill a person
5 of ordinary firmness because if a person of ordinary firmness were fired because of their First
6 Amendment activity, they—believing that more First Amended activity might lead to additional
7 adverse consequences—would be hesitant from engaging in future First Amendment activity.
8 Plaintiff’s First Amendment retaliation claim against Defendants sufficiently satisfies the fourth
9 prong of the Rhodes test. See id. at 568.4
10 C. Qualified Immunity
11 Defendants argue that they are entitled to qualified immunity from damages even if
12 Plaintiff states a First Amendment retaliation claim against them. But because Plaintiff’s
13 allegations, accepted as true, describe the violation of a clearly established constitutional right,
14 Defendants are not entitled to qualified immunity at the motion to dismiss stage.
15 When considering qualified immunity at the motion to dismiss stage, “dismissal is not
16 appropriate unless [the court] can determine, based on the complaint itself, that qualified immunity
17 applies.” Polanco v. Diaz, 76 F.4th 918, 925 (9th Cir. 2023) (quoting O’Brien v. Welty, 818 F.3d
18 920, 936 (9th Cir. 2016)). Under qualified immunity, “government officials are shielded from
19 liability under 42 U.S.C. § 1983 ‘unless (1) they violated a federal statutory or constitutional right,
20 and (2) the unlawfulness of their conduct was clearly established at the time.’” Bird v. Dzurenda,
21 131 F.4th 787, 790 (9th Cir. 2025) (quoting Rico v. Ducart, 980 F.3d 1292, 1298 (9th Cir. 2020)).
22 While there need not be a previous case “on all fours” with the present facts, Rico, 980 F.3d at
23 1298, caselaw must “have placed the statutory or constitutional question beyond debate.”
24 Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).
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4 Defendants’ reliance on Second Circuit caselaw for the proposition that when “a party
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can show no change in his behavior, he has quite plainly shown no chilling of his First
Amendment right to free speech,” Curley v. Village of Suffern, 268 F.3d 65, 73 (2nd Cir. 2001), is
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misplaced. Ninth Circuit caselaw is clear that a plaintiff need not show a change in behavior. See
1 Defendants describe the qualified immunity inquiry at issue as “whether it had been clearly
2 established that incarcerated persons had a right to be free from removal from Editor-in-Chief
3 positions pursuant to pertinent disciplinary charges and when the removal did not chill First
4 Amendment activity.” Mot. To Dismiss at 8. But there are two problems with this formulation.
5 First, at the motion to dismiss stage, the alleged factual matter must be “taken as true.” Twombly,
6 550 U.S. at 556. By stating both that the disciplinary charges were “pertinent” and that “the
7 removal did not chill First Amendment activity,” Defendants fail to accept Plaintiff’s allegations
8 as true. Second, Defendants’ formulation of the legal question is too narrow. A “clearly
9 established” violation of the law does not require that the “very action in question has previously
10 been held unlawful.” Wilson v. Layne, 526 U.S. 603, 615 (1999) (quoting Anderson v. Creighton,
11 483 U.S. 635, 640 (1987)). Rather, it requires that “in the light of pre-existing law the
12 unlawfulness must be apparent.” Id. To show this, caselaw need not specifically discuss
13 “removal from Editor-in-Chief positions,” but can more generally address when it is unlawful to
14 fire someone from their prison job and/or take other adverse action against them.
15 At this proper level of generality, binding case law indicates that, taking Plaintiff’s
16 allegations as true, Defendants violated a clearly established constitutional right. In the context of
17 prison, the prohibition against retaliatory punishment is clearly established law for qualified
18 immunity purposes. See Chavez v. Robinson, 12 F.4th 978, 1001 (9th Cir. 2021); Pratt v.
19 Rowland, 65 F.3d 802, 806 (9th Cir. 1995). So is the retaliatory firing from a prison job. See
20 Vignolo v. Miller, 120 F.3d 1075, 1078 (9th Cir. 1997) (prisoner may state 1st Amendment claim
21 for retaliatory firing from prison job even if there is no constitutional right to prison employment).
22 And it does not necessarily matter (at least at this stage in the proceedings) that adverse actions
23 were taken pursuant to disciplinary charges or findings because “purely retaliatory actions taken
24 against a prisoner” for exercising their First Amendment rights “violate the Constitution quite
25 apart from any underlying misconduct they are designed to shield.” Rhodes, 408 F.3d at 567
26 (citations omitted).
27 It simply cannot be said at this early stage in the proceedings that Defendants are entitled
1 D. California Tort Claims Act
2 Defendants argue that Plaintiff’s state law claims under § 1367 should be dismissed with
3 prejudice because Plaintiff fails to allege facts showing that he complied with the filing
4 requirements of the California Tort Claims Act. Because Plaintiff does not allege compliance, but
5 may be able to do so in amendment, the Court will dismiss Plaintiff’s state law claims with leave
6 to amend.
7 Under California law, a prerequisite to filing a lawsuit against a state employee is the filing
8 of a tort claim in the time and manner prescribed by the California Tort Claims Act. Munoz v.
9 California, 33 Cal. App. 4th 1767, 1776 (1995). Under the Act, a tort claim against a state
10 employee must be presented to the California Victim’s Compensation Government Claim Board
11 (VCGCB) within six months of the accrual of the cause of action. See Cal. Gov. Code § 911.2. If
12 a claim is rejected by VCGCB, a plaintiff must file a court action within six months of the
13 rejection. Because a plaintiff’s failure to file a timely claim with VCGCB is fatal to their cause of
14 action, they must allege compliance to state a claim. See Hacienda La Puente Unified Sch. Dist.
15 of Los Angeles v. Honig, 976 F.2d 487, 495 (9th Cir. 1992) (citing City of San Jose v. Super. Ct.
16 (Lands Unlimited), 12 Cal. 3d 447, 454 (1974)).
17 In his FAC, Plaintiff does not allege any facts indicating that he complied with the
18 California Tort Claims Act. But in his opposition, he points to two documents to suggest that he
19 filed timely claims. First, he points to his declaration where he states that he filed a claim with
20 VCGCB and never received a response. See Opp’n (ECF No. 28) at 17. Second, Plaintiff points
21 to an Inmate Statement Report from October 30, 2025. See id. Three items in the report show
22 withdrawals for “GOV CLAIMS.” Id. at 28. Plaintiff also includes two VCGBC forms with most
23 of the sections filled out, although the signature and date fields are left blank. See id. at 30–33.
24 Defendants argue that these documents show that “Plaintiff clearly acknowledges in his
25 opposition . . . that he failed to comply with the Tort Claims Act before filing the FAC asserting
26 state law claims.” Reply (ECF No. 29) at 4. Defendants point to several deficiencies in Plaintiff’s
27 filings to argue that he not only fails to allege compliance with the Act, but that “further
1 Although Plaintiff’s documents arguably suggest that he may not be able to allege
2 compliance with the California Tort Claims Act, it is not clear that he cannot. Plaintiff’s
3 deficiencies may be cured if there are more claim filings than the two that he included in his
4 opposition. And even if there are no additional claims, Plaintiff may be able to explain how his
5 claims, despite the seeming compliance deficiencies that Defendants identify (such as apparent
6 untimeliness), are nonetheless compliant. Under the circumstances, Plaintiff’s state law claims
7 will be dismissed for failure to allege compliance with the California Tort Claims Act with leave
8 to amend to allege compliance, if possible. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.
9 2000) (en banc) (court should grant leave to amend “unless it determines that the pleading could
10 not possibly be cured by the allegation of other facts”).
11 E. Motions for Leave to Amend and for Preliminary Injunctive Relief
12 Plaintiff recently filed a motion for leave to file a second amended complaint to add two
13 more defendants – Warden Chance Andes and Investigative Service Unit Officer E. Cervantes – to
14 this action, and a motion for preliminary injunctive relief reinstating his access to prison media
15 vocation programs.
16 Because Plaintiff is being afforded an opportunity to amend to allege compliance with the
17 California Tort Claims Act, if possible, he will be afforded an opportunity to add Andes and
18 Cervantes as defendants to this action on amendment as well. But in order to properly do so,
19 Plaintiff must set forth specific allegations in the second amended complaint showing exactly how
20 Andes and Cervates actually and proximately caused the deprivation of the constitutional right(s)
21 of which he complains. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988).
22 Plaintiff’s motion for preliminary injunctive relief is dismissed without prejudice to
23 renewing with (or after he files) a second amended complaint.
24 IV. CONCLUSION
25 For the foregoing reasons, Defendants’ motion to dismiss (ECF No. 25) is GRANTED IN
26 PART AND DENIED IN PART. The FAC is DISMISSED with leave to amend, as indicated
27 above, within 28 days of this order. The pleading must be simple and concise and must include
] COMPLAINT on the first page. Failure to file a proper second amended complaint within the
2 || designated time will result in the dismissal of this action.
3 Plaintiff is advised that the second amended complaint will supersede the original
4 ||} complaint, FAC and all other pleadings. Allegations, claims and defendants not included in the
5 second amended complaint will not be considered by the Court. See King v. Atiyeh, 814 F.2d
6 || 565, 567 (9th Cir. 1987).
7 The clerk is directed to terminate the motions appearing on ECF as items number 25, 30
8 and 31.
9 IT IS SO ORDERED.
10 |) Dated: July 28, 2026
i a
CHARLES R. BREYER
12 United States District Judge
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