Petition for Writ of Certiorari — James Plas Sams, Petitioner v. California Department of Corrections and Rehabilitation, et al.

Supreme Court briefFeb 16, 2021

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UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

SEP 10 2020

MOLLY C. DWYER, CLERK

U S COURT OF APPEALS

JAMES PLAS SAMS,

No. 20-55178

Plaintiff-Appellant,

CALIFORNIA DEPARTMENT OF

CORRECTIONS AND

REHABILITATION; et al.,

D.C. No. 5:19-cv-01538-ODW-JDE

Central District of California,

Riverside

ORDER

Defendants-Appellees.

Before:

TASHIMA, SILVERMAN, and OWENS, Circuit Judges.

The district court certified that this appeal is not taken in good faith and has

denied appellant’s motion to proceed in forma pauperis for this appeal. See 28

U.S.C. § 1915(a). On March 13, 2020, the court ordered appellant to explain in

writing why this appeal should not be dismissed as frivolous. See 28 U.S.C.

§ 1915(e)(2) (court shall dismiss case at any time, if court determines it is frivolous

or malicious).

Upon a review of the record and the response to the court’s March 13, 2020

order, we conclude that the questions raised in this appeal are so insubstantial as

not to require further argument. See United States v. Hooton, 693 F.2d 857, 858

(9th Cir. 1982) (stating standard).

APPENDIX A

However, the record indicates that the district court dismissed the state law

claims with prejudice. When a district court declines to exercise supplemental

jurisdiction over state law claims after dismissing federal claims, it should dismiss

the state law claims without prejudice. See Gini v. Las Vegas Metro. Police Dep %

40 F.3d 1041, 1046 (9th Cir. 1994) (“When. . . the court dismisses the federal

claim leaving only state claims for resolution, the court should decline jurisdiction

over the state claims and dismiss them without prejudice.” (alteration in original,

citation and internal quotation marks omitted)).

We therefore summarily affirm the district court’s judgment, but remand to

the district court with instructions to amend the judgment to dismiss the state law

claims without prejudice.

All pending motions are denied as moot.

AFFIRMED; REMANDED with instructions to amend the judgment.

20-55178

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

EASTERN DIVISION

JAMES PLAS SAMS

Case No. 5:19-cv-01538-ODW-JDE

Plaintiff,

CALIFORNIA DEPARTMENT OF

CORRECTIONS AND

REHABILITATION, et al.f

SUPERSEDING ORDER RE

COMPLAINT

Defendants.

INTRODUCTION

On August 16, 2019, Plaintiff James Plas Sams (“Plaintiff’), proceeding

pro se and seeking leave to proceed in forma pauperis, filed a civil rights

complaint under 42 U.S.C. § 1983 (“Section 1983” or “§ 1983”) against the

California Department of Corrections and Rehabilitation (“CDCR”), Office

Services Supervisor Chelsea Armenta (“Armenta”), Captain W. Hawkins

(“Hawkins”), Appeals Coordinator P. Birdsong (“Birdsong”), Associate

Warden P. Messerli (“Messerli”), Chief Deputy Warden R. W. Smith

(“Smith”), Chief N. Fransham (“Fransham”), Lieutenant Ruben Jimenez

(“Jimenez”), Appeals Examiner C. Tennison (“Tennison”), Chief P. Ramos

APPENDIX B

(“Ramos”), C. Bristow (“Bristow”), and one Doe Defendant identified as “the

Hiring Authority,” alleging that a publication was improperly withheld and his

administrative grievances were improperly rejected. Dkt. 1 (“Complaint”). All

defendants are sued in their individual capacity only. On August 29, 2019,

Plaintiff filed “Supplemental Exhibits in Support of Plaintiff s Complaint,”

explaining that Ironwood State Prison (the “Prison”) staff would not e-file

these documents with the Complaint and that the documents were

incorporated by reference into the Complaint. Dkt. 7 (“Compl. Supp.”).

Under 28 U.S.C. §§ 1915(e)(2) and 1915A(b), the Complaint must be

dismissed if it is frivolous or malicious, fails to state a claim on which relief

may be granted, or seeks monetary relief against a defendant who is immune

from such relief. On September 5, 2019, after having reviewed the allegations

in the Complaint, the Court found that the claims asserted in the Complaint

14 were subject to dismissal for failing to state a claim upon which relief may be

granted and seeking monetary relief against a defendant who is immune from

such relief. Dkt. 8 (“Prior Order”). Although concluding that “it does not

appear that Plaintiffs claims can be cured by further amendment,” the Court

nonetheless provided Plaintiff with an opportunity to file an amended

complaint to, if he could, cure the deficiencies noted in the Prior Order. Iff at

18.

In response to the Prior Order, on September 23, 2019, Plaintiff filed a

Motion for Reconsideration of the Prior Order, asserting, among other things,

that the Complaint only alleges federal civil rights claims against Birdsong,

24 based upon alleged First Amendment violations, with all remaining claims

against the other defendants based solely upon alleged state law violations.

Dkt. 10 (“Motion for Reconsideration”) at 1-2. Based upon his

characterization of the Complaint, including a clarification of the Complaint

that provides “|a|t no time is there a First Amendment claim that the denial

of the publication is alleged as a federal claim” (id. at 2), Plaintiff argues that

the Prior Order is based upon a “manifest showing of a failure to consider facts

presented to the Court” (id at 1), asserting that the Complaint does state

claims for civil rights violations based upon First Amendment retaliation and

denial of rights to association, Fourteenth Amendment due process violations,

and conspiracy, as well as state law claims (id. at 2-6). On September 24, 2019,

Plaintiff filed an Objection to the Prior Order (Dkt. 9, “Objection”) in which

Plaintiff similarly argues that the Prior Order erroneously found the

Complaint: (1) was subject to Eleventh Amendment immunity as to state law

claims (id. at 4-8 (CM/ECF pagination)); (2) did not allege a First Amendment

violation based upon alleged infringement of expressive association and

retaliation (id at 4-7); and (3) did not state a Due Process claim; and (4) did

not state a claim for conspiracy (id at 7-8).

Having considered Plaintiffs Motion for Reconsideration and Objection >.

the Court issues this Order amending and superseding the Prior Order.

SUMMARY OF PLAINTIFF’S ALLEGATIONS

Plaintiff alleges on February 19, 2019, Prison mail room staff Armenta

and Hawkins “conspired” to deny Plaintiff, Cesar Ramirez (“Ramirez”), and

Erik Burciaga (“Burciaga”)1 an Eden Press catalog on the ground that it

violated Cal. Code Regs., tit. 15, § 3006 “in that it contained ‘plans for

activities that violate the law, these regulations, or local procedures.’”

Complaint at 7, 15 (CM/ECF pagination); Compl. Supp., Exh. A at 5.

••V

Ramirez and Burciaga have each filed separate federal civil rights actions,

alleging the same claims as those asserted in this action. See Ramirez v. California

Department of Corrections and Rehabilitation, et al.. Case No. 2:19-cv-06910-ODWJDE; Burciaga v. California Department of Corrections and Rehabilitation, et al..

Case No. 5:19-cv-01436-ODW-JDE.

■v

Plaintiff alleges the three inmates filed a group grievance communicating

“a clear intention to sue for the denial of the publication.” Complaint at 7.

Plaintiff claims Birdsong arbitrarily rejected the group grievance on February 28

2019 because of the “threat to sue.” The stated reason for the rejection was “the

event occurred to three (3) separate individuals versus the group collectively/as

a whole.” Iff; Compl. Supp., Exh. A. The rejection letter instructed the inmates

to submit individual appeals. Compl. Supp., Exh. A. Plaintiff claims the basis

for the rejection was contrary to the regulations, and as such, there was no

legitimate penological interest for the rejection. Complaint at 7-8.

On or about March 1, 2019, Plaintiff filed an individual administrative

appeal regarding the denial of the Eden Press catalog. Plaintiff pursued this

administrative appeal through all three levels of review. Compl. Supp., Exh. E.

Meanwhile, on March 19, 2019, the three inmates allegedly submitted

another group grievance challenging the denial of the original group grievance.

Complaint 10; Compl. Supp., Exh. B. Plaintiff alleges that Birdsong again

arbitrarily rejected this appeal, incorrectly stating it was a duplicate of the

original issue, which Plaintiff contends it was not. Complaint at 10. He argues

that Birdsong’s denial was done in retaliation for “speech protected by the First

Amendment” and there was no legitimate penological interest in the denial. Id.

Plaintiff contends the three inmates submitted a group staff complaint

against Birdsong “for the repeated arbitrary denials of grievances” on April 2,

2019. Complaint at 11. On April 10, 2019, Birdsong allegedly denied the group

staff complaint arbitrarily, (1) claiming the issue was moot because each

inmate filed individual appeals regarding the Eden Press publication and (2)

instructing the inmates to file individual staff complaints. Plaintiff contends the

new staff complaint related to Birdsong’s denial of the right to file grievances,

not the denial of the publication, and Birdsong misquoted and omitted relevant

language in the regulation regarding group grievances. Iff; Compl. Supp., Exh.

C. Plaintiff claims Birdsong denied the staff complaint in retaliation for filing

the complaint against him, which Birdsong was not even permitted to review

as it involved allegations against him. Complaint at 11-12.

Thereafter, on May 1, 2019, Plaintiff submitted an individual staff

complaint against Birdsong, but Doe Defendant “refused to terminate the

actions of Birdsong’s arbitrary rejections of appeals.” Complaint at 13. Plaintiff

asserts the May 17, 2019 denial, “threatened to label appeals as abusive and

impose restrictions as punishment” in retaliation “for attempting to the comply

with the [Prison Litigation Reform Act of 1995].” Id.

Plaintiff contends these actions violated his First and Fourteenth

Amendment rights as well as state law. Plaintiff seeks compensatory damages,

punitive damages, and civil penalties. Complaint at 21.

STANDARD OF REVIEW

As noted, under 28 U.S.C. §§ 1915(e)(2) and 1915A(b), a complaint is

subject to dismissal if it fails to state a claim on which relief may be granted or

seeks monetary relief against a defendant who is immune from such relief. A

complaint may be dismissed for failure to state a claim for two reasons: (1) lack

of a cognizable legal theory; or (2) insufficient facts under a cognizable legal

theory. Balistreri v. Pacifica Police Dep’t. 901 F.2d 696, 699 (9th Cir. 1990) (as

amended). In determining whether the complaint states a claim, its factual

allegations must be taken as true and construed in the light most favorable to

the plaintiff. See Lazy Y Ranch Ltd, v, Behrens. 546 F.3d 580, 588 (9th Cir.

2008). Courts construe the allegations of pro se complaints liberally. Erickson

v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); see also Hebbe v. Pliler. 627

F.3d 338, 342 (9th Cir. 2010) (as amended). However, “a liberal interpretation

of a civil rights complaint may not supply essential elements of the claim that

were not initially pled.” Bruns v. Nat’l Credit Union Admin.t 122 F.3d 1251,

1257 (9th Cir. 1997) (citation omitted). “[T]he tenet that a court must accept as

true all of the allegations contained in a complaint is inapplicable to legal

conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

A “plaintiffs obligation to provide the ‘grounds’ of his ‘entitle [ment] to

relief requires more than labels and conclusions, and a formulaic recitation of

the elements of a cause of action will not do. .. . Factual allegations must be

enough to raise a right to relief above the speculative level... on the

assumption that all the allegations in the complaint are true (even if doubtful in

fact).” Bell Ad. Corp. v, Twomblv. 550 U.S. 544, 555 (2007) (alteration in

original) (internal citations omitted); see also Iqbal. 556 U.S. at 678. A plaintiff

must allege a minimum factual and legal basis for each claim that is sufficient

to give each defendant fair notice of what the claims are and the grounds upon

which they rest. See, e.g.. Brazil v. U.S. Dep’t of the Naw. 66 F.3d 193, 199

(9th Cir. 1995); McKeever v. Block. 932 F.2d 795, 798 (9th Cir. 1991).

If the Court finds that a complaint should be dismissed for failure to state

a claim, the Court has discretion to dismiss with or without leave to amend.

Lopez v. Smith. 203 F.3d 1122, 1126-30 (9th Cir. 2000) (enbanc). Leave to

amend should be granted if the defects in the complaint could be corrected,

especially if the plaintiff is pro se. Iff at 1130-31; see also Cato v. United

States. 70 F.3d 1103, 1106 (9th Cir. 1995) (noting that “[a] pro se litigant must

be given leave to amend his or her complaint, and some notice of its

deficiencies, unless it is absolutely clear that the deficiencies of the complaint

could not be cured by amendment”). However, if, after careful consideration,

it is clear that a complaint cannot be cured by amendment, the Court may

dismiss without leave to amend. See Cato. 70 F.3d at 1105-06; see, e.g.. Chaset

v. Fleer/Skvbox Int'l. 300 F.3d 1083, 1088 (9th Cir. 2002) (holding that “there

is no need to prolong the litigation by permitting further amendment” where

the “basic flaw” in the pleading cannot be cured by amendment).

IV.

DISCUSSION

To state a civil rights claim under Section 1983, a plaintiff must allege

that a defendant, while acting under color of state law, caused a deprivation of

the plaintiffs federal rights. West v. Atkins. 487 U.S. 42, 48 (1988); Tavlor v.

List. 880 F.2d 1040, 1045 (9th Cir. 1989). Causation “must be individualized

and focus on the duties and responsibilities of each individual defendant whose

acts or omissions are alleged to have caused a constitutional deprivation.” Leer

v. Murphy. 844 F.2d 628, 633 (9th Cir. 1988). An individual “causes” a

constitutional deprivation when he or she (1) “does an affirmative act,

participates in another’s affirmative acts, or omits to perform an act which he

is legally required to do that causes the deprivation”; or (2) “set[s] in motion a

series of acts by others which the [defendant] knows or reasonably should

know would cause others to inflict the constitutional injury.” Lacey v.

Maricopa Ctv.. 693 F.3d 896, 915 (9th Cir. 2012) (en banc) (citation omitted).

General Standard for Civil Rights Claims

CDCR is Immune from Suit for Claims for Damages under the

Eleventh Amendment

“The Eleventh Amendment prohibits federal courts from hearing suits

brought against an unconsenting state.” Brooks v. Sulphur Springs Valiev Elec.

Coop.. 951 F.2d 1050, 1053 (9th Cir. 1991) (citing Pennhurst State Sch. &

Hosp. v. Halderman, 465 U.S. 89, 100 (1984)). This jurisdictional bar includes

“suits naming state agencies and departments as defendants, and applies

24 whether the relief sought is legal or equitable in nature.” Id. “[A]n entity with

25 Eleventh Amendment immunity is not a ‘person’ within the meaning of

«v

§ 1983.” Howlett Bv & Through Howlett v. Rose. 496 U.S. 356, 365 (1990).

Additionally, the Eleventh Amendment bars supplemental state law claims.

See Pennhurst State Sch. & Hosp.. 465 U.S. at 121; Cholla Ready Mix, Inc, v.

Civish, 382 F.3d 969, 973 (9th Cir. 2004) (concluding that plaintiffs state law

claims were barred by the Eleventh Amendment); Parra v. Hernandez. 2008

WL 5765843, at *10 (S.D. Cal. July 22, 2008) (dismissing claim for vicarious

liability under Cal. Gov’t Code § 815.2 against CDCR based on Eleventh

Amendment immunity).

To overcome the Eleventh Amendment bar on federal jurisdiction over

suits by individuals against a State and its instrumentalities, either the State

must have “unequivocally expressed” its consent to waive its sovereign

immunity or Congress must have abrogated it. See Pennhurst State Sch. &

Hosp.. 465 U.S. at 99-100. California has consented to be sued in its own

courts pursuant to the California Tort Claims Act, but such consent does not

constitute consent to suit in federal court. See BY Eng’g v. Univ. of Cal.. L.A.,

858 F.2d 1394, 1396 (9th Cir. 1988); Pittman v, California. 191 F.3d 1020,

1025-26 (9th Cir. 1999) (“California has not waived its Eleventh Amendment

immunity with respect to claims brought under § 1983 in federal court”).

Furthermore, Congress has not abrogated State sovereign immunity against

suits under Section 1983. See Pittman. 191 F.3d at 1026; L,A. Branch

NAACP v. L.A. Unified Sch. Pist.. 714 F.2d 946, 950 (9th Cir. 1983).

Here, CPCR, as a state agency, is immune from suit for damages under

the Eleventh Amendment. See Alabama v. Pugh. 438 U.S. 781, 781 (1978)

(per curiam); Brown v. Cal. Pep’t of Corr.. 554 F.3d 747, 752 (9th Cir. 2009);

Taylor. 880 F.2d at 1045. Accordingly, Plaintiffs claims against CPCR are

barred by the Eleventh Amendment.

In his Objection, Plaintiff purports to clarify that “the CPCR is sued

under state law only.” Pkt. 9 at 4. Plaintiffs purported clarification does not

alter the Eleventh Amendment analysis. Eleventh Amendment immunity

against state agencies for damages acts as a bar against all federal lawsuits

against such entities, absent abrogation by Congress or a waiver by the state,

neither of which are alleged or supported here. See, e.g.. Steshenko v, Gavrard.

44 F. Supp. 3d 941, 949 (N.D. Cal. 2014) (dismissing a § 1983 and state law

action against a state entity based upon Eleventh Amendment immunity).

Thus, Plaintiffs purported limitation has no bearing on the immunity analysis

as to the CDCR.

The Complaint Fails to State a Federal Civil Rights Claim

Against the Individual Defendants

The Complaint appears to seek to bring claims under the First

Amendment and Due Process Clause of the Fourteenth Amendment for

10 withholding the Eden Press catalog and improperly screening of Plaintiffs

11 grievances. Following the entry of the Prior Order, Plaintiff asserts that the

Complaint alleges a Section 1983 claim against defendant Birdsong for

violating Plaintiffs “First Amendment rights to petition the government for the

redress of grievances, expressive association, and retaliation” with the

remaining claims against the other defendants asserted under “state law.” Dkt.

9 at 1. Plaintiff similarly purports to limit his “federal claims” to “the denial of

the right to petition the government for the redress of grievances and retaliation

primarily.” Dkt. 10 at 2.

As the Complaint on its face is not as narrowly drawn as stated by

Plaintiff in his subsequent filing, the Court, inteipreting the Complaint

liberally, will address both what appear to be the claims raised in the

Complaint, and Plaintiffs purported clarification.

Withholding the Eden Press Catalog

Interpreting the Complaint liberally, Plaintiff contends that his First

Amendment right to expressive association and his Fourteenth Amendment

right to due process were violated by Armenta and Hawkins by their

27 withholding the delivery of the Eden Press catalog. Complaint at 7-10.

*5,

First Amendment

Prison inmates have a First Amendment right to send and receive mail.

See Witherow v. PafF, 52 F.3d 264, 265 (9th Cir. 1995) (per curiam) (citing

Thornburgh v, Abbott, 490 U.S. 401, 407 (19891): see also Nordstrom v. Rvan.

856 F.3d 1265, 1271 (9th Cir. 2017). However, this “right is subject to

‘substantial limitations and restrictions in order to allow prison officials to

achieve legitimate correctional goals and maintain institutional security.’”

Prison Legal News v. Lehman. 397 F.3d 692, 699 (9th Cir. 2005) (quoting

Walker v. Sumner. 917 F.2d 382, 385 (9th Cir. 1990)); Morrison v. Hall. 261

F.3d 896, 901 (9th Cir. 2001). “[W]hen a prison regulation impinges on

inmates’ constitutional rights, the regulation is valid if it is reasonably related

to legitimate penological interests.” Turner v. Saflev. 482 U.S. 78, 89 (1987).

In Turner, the Supreme Court identified four factors relevant to

determining whether a regulation affecting a constitutional right is reasonable:^

whether the regulation has a “‘valid, rational connection’” to a

legitimate governmental interest; whether alternative means are

open to inmates to exercise the asserted right; what impact an

accommodation of the right would have on guards and inmates

and prison resources; and whether there are “ready alternatives” to

the regulation.

Overton v, Bazzetta. 539 U.S. 126, 132 (2003) (quoting Turner. 482 U.S. at 89-

91). The burden “is not on the State to prove the validity of prison regulations

but on the prisoner to disprove it.” Id.

Here, Plaintiff fails to allege sufficient facts to demonstrate that Armenta

and Hawkins violated his First Amendment rights by withholding the Eden

Press catalog. According to the factual allegations in the Complaint and the

documents incorporated by reference, the Eden Press catalog was withheld

from distribution on the ground that it violated Cal. Code Regs, tit. 15, § 3006

because it contained “plans for activities that violate the law, these regulations,

or local procedures.” Complaint at 15; Compl. Supp., Exh. A at 5.

As alleged, withholding the Eden Press catalog was reasonably related to

a legitimate interest in maintaining security at the Prison.2 “ [Prevention of

criminal activity and the maintenance of prison security are legitimate

penological interests which justify the regulation of both incoming and

outgoing prisoner mail.” O’ Keefe v. Van Boening. 82 F.3d 322, 326 (9th Cir.

1996). Plaintiff does not dispute that the Eden Press catalog violated Section

3006 or claim that the restriction bore no rational connection to the Prison’s

valid interest in maintaining security.

The Court also has considered whether Plaintiff has alternative means of

exercising his asserted “right to associate with other speakers of similar

opinions.” See Complaint at 9. “Where ‘other avenues’ remain available for

14 the exercise of the asserted right. . . courts should be particularly conscious of

the ‘measure of judicial deference owed to corrections officials ... in gauging

the validity of the regulation.’” Turner. 482 U.S. at 90 (second alteration in

original) (citations omitted). “Where, as here, a state penal institution is

involved, ‘federal courts have a further reason for deference to the appropriate

prison authorities.’” Casev v. Lewis. 4 F.3d 1516, 1521 n.3 (9th Cir. 1993)

(citation omitted). Courts “must accord substantial deference to the

professional judgment of prison administrators, who bear a significant

responsibility for defining the legitimate goals of a corrections system and for

2 According to the Ninth Circuit, The Paper Trip, the Eden Press publication

issue,

previously listed such topics as: “[c]hange your age for whatever purpose”;

“[a]void any or all creditors” and “[r]etum from exile without detection.” United

26 States v. Reid. 634 F.2d 469, 471 (9th Cir. 1980). The catalog card listed Eden Press

27 books on subjects such as “check frauds,” “con games,” and “privacy from the tax

man.” Id The Court has not relied on this 1980 description in its decision, but such

28 description supports the Prison’s characterization of this publication as contraband.

determining the most appropriate means to accomplish them.” Overton. 539

U.S. at 132. In this case, a single publication was withheld because it

“provide[d] a means to obtain materials which violate the law, [and] which

4 pose a threat to the safety and security of the institution . . .

Exh. E at 11. There is nothing to suggest that Plaintiff was unable to obtain

any reasonable alternative publications in order to exercise his asserted “right

to associate with other speakers of similar opinions.”

Additionally, as to the impact on others, the publication at issue was

withheld precisely because of its potential adverse impact on guards, staff, and

other inmates. Accommodating Plaintiffs request for this publication would

create significant security concerns and “would impair the ability of

corrections officers to protect all who are inside a prison’s walls.” Overton. 539

U.S. at 135.

■>

Compl. Supp

Finally, the Court considers whether the presence of ready alternatives

undermines the reasonableness of the decision. Overton. 539 U.S. at 136.

Under Turner, the existence of obvious, easy alternatives to a prison regulation

restricting constitutional rights may be evidence that the regulation is not

reasonable, but is an “exaggerated response” to prison concerns. 482 U.S. at

90-91. “It is incumbent upon the prisoner[] to point to an alternative that

accommodates [his] rights at de minimis cost to security interests.” Casey. 4

F.3d at 1523. Plaintiff has not presented any alternatives to address the

Prison’s security concerns.

Accordingly, as currently pled, Plaintiff has not sufficiently stated a First

Amendment claim against Amenta and Hawkins for withholding the Eden

Press catalog.

li.

Fourteenth Amendment

The Due Process Clause protects prisoners from being deprived of liberty

without due process of law. Wolff v. McDonnell. 418 U.S. 539, 556 (1974). A

violation of procedural due process requires a showing of (1) “a liberty or

property interest protected by the Constitution,” (2) “a deprivation of the

interest by the government,” and (3) “a lack of process.” Shanks v. Dressel.

540 F.3d 1082, 1090 (9th Cir. 2008) (citation omitted); see also Swarthout v.

Cooke, 562 U.S. 216, 219 (2011) (per curiam) (explaining that the procedural

due process analysis proceeds in two steps: first, was there a liberty or property

interest of which a person has been deprived, and second, if so, were the

procedures followed by the State constitutionally sufficient). Prisoners have a

liberty interest in the receipt of subscription publications sufficient to trigger

procedural due process guarantees. See Krug v. Lutz. 329 F.3d 692, 696-97

(9th Cir. 2003). Thus, withholding the delivery of a prisoner’s mail must be

accompanied by minimum procedural protections. IcL at 697-98; Sorrels v.

McKee. 290 F.3d 965, 972 (9th Cir. 2002) (as amended). The prisoner has a

Fourteenth Amendment due process liberty interest in receiving notice that his

incoming mail has been withheld by prison authorities, Frost v. Symington.

197 F.3d 348, 353 (9th Cir. 1999), and the right to appeal the exclusion of the

publication to a prison official other than the one who made the initial

exclusion decision.

, 329 F.3d at 698.

Here, Plaintiff admits, and the documents incorporated into the

Complaint demonstrate, that he received notice that the publication was being

withheld and provided an opportunity to appeal the decision through the

Prison’s administrative grievance procedure. This is all the process that he was

due. As such, Plaintiff has failed to state a due process claim based on the

denial of the Eden Press publication. See Krug. 329 F.3d at 698; Crozier v,

25- Endel. 446 F. App’x 14, 15 (9th Cir. 2011); Brown v. Galvin. 2017 WL

<’ A .

6611501, at *4 (E.D. Cal. Dec. 27, 2017).

///

Improper Screening of Grievances

Plaintiff also maintains that Birdsong repeatedly and arbitrarily denied

his group administrative grievances without any legitimate penological interest

in violation of his First Amendment right to petition the government for the

redress of grievances and access to the courts, as well as his due process rights.

He claims Birdsong was retaliating against him for filing the grievances, which

communicated Plaintiffs intent to sue. Complaint at 7-12. He further alleges

that when he submitted an individual staff complaint against Birdsong, Doe

Defendant refused to terminate Birdsong’s arbitrary actions and in retaliation,

Doe Defendant and/or Birdsong threatened to label Plaintiffs appeals “as

abusive and impose restrictions as punishment for attempting to comply with

the PLRA.” Id. at 13.

First Amendment

The First Amendment provides a right to petition the government for

15 redress of grievances. See Soranno’s Gasco, Inc, v. Morgan. 874 F.2d 1310,

1314 (9th Cir. 1989) (citing Cal Motor Transp. Co. v. Trucking Unlimited.

404 U.S. 508, 510 (1972)). The right of access to the courts is subsumed under

this right. Id In the prison context, prisoners have a First Amendment right to

file prison grievances. Brodheim v. Cry. 584 F.3d 1262, 1269 (9th Cir. 2009).

Deliberate retaliation by a state actor against an individual’s exercise of First

Amendment rights may be actionable under Section 1983. Soranno’s Gasco.

22 874 F.2d at 1314; see also Rhodes v. Robinson. 408 F.3d 559, 567 (9th Cir.

23 2005) (as amended).

To state a claim for retaliation in violation of the First Amendment in

the prison context, a plaintiff must show five basic elements: “(1) [a]n assertion

that a state actor took some adverse action against an inmate (2) because of (3)

that prisoner’s protected conduct, and that such action (4) chilled the inmate’s

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

«!

advance a legitimate correctional goal.” Brodheim. 584 F.3d at 1269 (quoting

Rhodes. 408 F.3d at 567-68). To satisfy the causation element, plaintiff must

show that his constitutionally protected conduct was a “'substantial’ or

‘motivating’ factor” for the alleged retaliatory action. Brodheim. 584 F.3d at

1271 (quoting Soranno’s Gasco. 874 F.2d at 1314). “[P]laintiff must show that

the defendant’s retaliatory animus was 'a “but-for” cause, meaning that the

adverse action against the plaintiff would not have been taken absent the

retaliatory motive.’” Capp v, Ctv. of San Diego. 940 F.3d 1046, 1053 (9th Cir.

2019) (as amended) (citation omitted). The chilling inquiry is governed by an

objective standard, and “the infliction of harms other than a total chilling effect

can establish liability” for retaliatory conduct. See. e,g.. Rhodes. 408 F.3d at

569; Mendocino Envtl. Ctr. v, Mendocino Ctv.. 192 F.3d 1283, 1300 (9th Cir.

1999). Adverse action is action that “would chill a person of ordinary

firmness” from engaging in the protected activity. Pinard v. Clatskanie Sch.

Dist. 6J, 467 F.3d 755, 770 (9th Cir. 2006) (as amended); see also Capp, 940

F.3d at 1054. Plaintiff bears the burden of pleading and proving the absence of

17 | legitimate correctional goals for the conduct of which he complains. Pratt v.

18 ^ Rowland, 65 F.3d 802, 806 (9th Cir. 1995).

Here, Plaintiff alleges that: (1) Birdsong arbitrarily rejected a group

grievance in retaliation for “speech protected by the First Amendment”; (2)

Birdsong arbitrarily denied a group staff complaint against him in retaliation

for filing that staff complaint; and (3) Doe Defendant refused to terminate

Birdsong’s arbitrary rejection of appeals after Plaintiff submitted an individual

staff complaint against Birdsong, and in retaliation, Doe Defendant and/or

Birdsong threatened to label Plaintiffs appeals “as abusive and impose

restrictions as punishment for attempting to comply with the PLRA.”

Complaint at 7, 10-13. The Court finds that these allegations do not plausibly

state a First Amendment retaliation claim.

Plaintiff Mis to plead facts that would establish a causal connection

a ,

2 between the protected conduct and the adverse action. Plaintiffs conclusory

3 allegations of “retaliation” without any specific factual support are insufficient

to establish that the filing of the grievances was the substantial and motivating

factor for the resulting rejections. The mere “fact that Plaintiffs grievance was

denied does not establish a First Amendment retaliation claim.” See Jordan v.

Asuncion. 2018 WL 2106464, at *4 (C.D. Cal. May 7, 2018). Plaintiffs

conclusory assertion that the filing of a grievance “communicated a clear

intention to sue for denial of the publication” does not change the analysis.

Such a conclusory claim would make the rejection of every grievance a basis

for a First Amendment retaliation claim—a proposition that runs contrary to

the law. See id.

In addition, where, as here, there is an “obvious alternative explanation”

for the alleged misconduct, Plaintiffs conclusory allegation that Birdsong was

15 i retaliating against him is not plausible. See Capp. 940 F.3d at 1055 (noting the

16 1 Supreme Court’s “admonition that an allegation is not plausible where there is

17 | an ‘obvious alternative explanation’ for alleged misconduct.” (quoting Iqbal

556 U.S. at 682)). The allegations of the Complaint and the documents

incorporated into the Complaint by reference reflect that Plaintiffs grievances

were rejected for failing to comply with applicable regulations. Plaintiff was

advised he could not appeal a rejected grievance and to resubmit his grievances

as individual appeals. Unlike the cases cited by Plaintiff, Plaintiff was not

prevented from pursing his administrative remedies. Compare Compl. Supp.

24 i with Complaint at 11 (citing Silverman v. Christian. 2018 U.S. Dist. LEXIS

25 i 80316, at *2 (N.D. Cal. May 3, 2018) (alleging that defendant “has ‘not

26 ' allowed grievances to be filed’”) & Oden v. Voong. 2019 U.S. Dist. LEXIS

6525, at *2 (N.D. Cal. Jan. 14, 2019) (alleging that defendants prevented

plaintiff from filing a staff complaint)). All grievances at issue stemmed from

Plaintiff’s request to file a group grievance regarding the denial of the Eden

Press publication. Plaintiff was permitted, and did file, an individual appeal

regarding the denial of this publication through the third level of review,

4 j Plaintiffs mere disagreement with Birdsong’s finding that Plaintiff must seek

5 j relief through an individual grievance rather than a group grievance is

insufficient to show that Birdsong was retaliating against him for filing

7 , grievances. The Court finds that Plaintiff has failed to plausibly allege that

8 ;i retaliation was the but-for motive for the denial of the administrative

grievances.

In addition, to the extent Plaintiff is asserting that Birdsong’s allegedly

11 improper rejection of the initial group grievance violated Plaintiffs First

12 Amendment right to “expressive association,” Plaintiff fails to allege sufficient

13 facts to demonstrate that Birdsong violated Plaintiffs rights by rejecting the

14 group grievance. Plaintiff argues that Birdsong’s “arbitrary adverse action

15 , chilled the right to expressive association and forced Plaintiff to abandon that

16 First Amendment right.” Complaint at 8. He claims he “suffered actual injury

17 to his contemplated litigation by the loss of potential defendants by not being

18 able to advance this issue on further appeals.” Id. As noted, however, after the

19 initial group grievance was rejected, Plaintiff filed an individual administrative

20 ' appeal, which was accepted for filing. Thus, contrary to Plaintiffs allegations,

21 | Plaintiff was not forced to abandon his First Amendment right; rather, he

22 pursued it individually through the third level of administrative review.

23 Plaintiff does not explain how Birdsong’s instruction to file his administrative

24 i grievance individually resulted in any loss of potential defendants. Further, to

25 | the extent Plaintiff asserts that his rights to association were limited in that he

26 | was required to file an individual rather than a group grievance, there is no

27 j Constitutional right for detainees to file group grievances. See Lee v. Chavez.

28 | 1995 WL 481432, at *2 (N.D. Cal. Aug. 8, 1995); see also Ramirez v. Galaza.

1 334 F.3d 850, 860 (9th Cir. 2003) (“inmates lack a separate constitutional

entitlement to a specific prison grievance procedure”).

The Court finds that Plaintiff has failed to state a First Amendment

claim against Birdsong based on his rejection of Plaintiff s administrative

grievances.

li.

Fourteenth Amendment

Plaintiff also contends that Birdsong’s rejection of his administrative

8 grievances violated his due process rights. There is, however, no due process

9 " right to a specific prison grievance procedure. See Ramirez. 334 F.3d at 860

10 (“inmates lack a separate constitutional entitlement to a specific prison

11 grievance procedure”); Mann v. Adams. 855 F.2d 639, 640 (9th Cir. 1988)

12 (“There is no legitimate claim of entitlement to a grievance procedure.”);

13 Daniels v. Mar. 670 F. App’x 491, 492 (9th Cir. 2016) (“an inmate has no due

14 process rights regarding the handling of grievances”); Rilev v. Roach. 572 F.

15 i App’x 504, 507 (9th Cir. 2014) (“inmates do not possess a constitutional right

16 1 to a prison grievance system”); Smith v, Swanev. 399 F. App’x 234, 234 (9th

17 : Cir. 2010) (affirming dismissal of plaintiffs due process claim because “a

18 prisoner enjoys no constitutional right to a prison grievance procedure”). As

19 such, Birdsong did not violate Plaintiffs due process rights by rejecting his

20 administrative grievances. To the extent Plaintiff asserts that his due process

21 claim is a “substantive due process claim” (see Dkt. 9 at 7; Dkt. 10 at 4-5), as

22 prisoners are not entitled to any particular prison grievance procedure, a

23 “substantive due process” claims based upon a grievance procedure similarly

24 fails. See Shanks. 540 F.3d at 1087 (“To state a substantive due process claim,

25 |' he plaintiff must show as a threshold matter that a state actor deprived it of a

26 constitutionally protected life, liberty or property interest.”).

27 ///

28 ///

Conspiracy

Finally, Plaintiff seeks to hold the remaining defendants liable based on

an alleged conspiracy to violate his constitutional rights. He claims Fransham

4 joined this conspiracy by authoring a memorandum denying the Eden Press

publication; and Jimenez, Messerli, Bristow, Smith, Tennison, and Ramos

6 joined the conspiracy by denying Plaintiffs administrative appeals regarding

the Eden Press publication. Complaint at 8. He further claims that all

8 ' defendants are liable “for each of Birdsong’s arbitrary violations of grievances

9 ! both before and after they joined the conspiracy.” ftL According to Plaintiff,

“all the members of the conspiracy are liable as their conduct led to the

violation of Plaintiffs constitutional rights and their [sic] is a causal

connection.” IdL at 12. Plaintiffs conclusory allegations are insufficient to state

.1 Section 1983 claim based on a conspiracy to violate his constitutional rights.

“To establish liability for a conspiracy in a § 1983 case, a plaintiff must

‘demonstrate the existence of an agreement or meeting of the minds’ to violate

constitutional rights.” Crowe v. Ctv. of San Diego. 608 F.3d 406, 440 (9th Cir.

2010) (as amended) (citation omitted). “The defendants must have, ‘by some

concerted action, intended] to accomplish some unlawful objective for the

purpose of harming another which results in damage.’” Mendocino Envtl.

Ctr., 192 F.3d at 1301 (alteration in original) (citation omitted).

Here, Plaintiff has not alleged any facts showing the existence of an

agreement or a “meeting of the minds” to violate his constitutional rights,

laintiff must allege more than the alleged co-conspirators merely did or said

he same thing. Mvers v. City of Hermosa Beach. 299 F. App’x 744, 747 (9th

Cir. 2008); see also Mendocino Envtl. Ctr., 192 F.3d at 1301 (plaintiff must

26 " demonstrate the existence of an agreement or “meeting of the minds” to

•■iolate constitutional rights). The mere fact that a defendant denied an

1 dminisirative grievance does not establish liability under Section 1983. See

,■>

Mansanares v. Arizona, 2011 WL 5924349, at *10 (D. Ariz. Nov. 22, 2011)

2 i (“Where a defendant’s only involvement in allegedly unconstitutional conduct

is the denial of administrative grievances, the failure to intervene on a

prisoner’s behalf to remedy the alleged unconstitutional behavior does not

amount to active unconstitutional behavior for purposes of § 1983.” (citing

Shehee v. Luttrell. 199 F.3d295, 300 (6th Cir. 1999')); see also Fiorito v.

7 ] Anderson. 2018 WL 4657171, at *8 (C.D. Cal. Sept. 24, 2018) (“Courts in this

circuit generally agree that denying an inmate appeal does not, by itself, lead to

'lability.”); Report and Recommendation accepted bv 2018 WL 4691268 (C.D.

10 I Cal. Sept. 25, 2018). Plaintiffs naked assertion that a conspiracy existed,

11 i without more, is insufficient to state a claim. See Twomblv. 550 U.S. at 557

(“a conclusory allegation of agreement at some unidentified point does not

supply facts adequate to show illegality”).

Moreover, under Section 1983, even if a plaintiff establishes the

existence of a conspiracy, there is no liability unless there is an actual

leprivation of constitutional rights. See Woodrum v. Woodward Ctv.. 866

\2d 1121, 1126 (9th Cir. 1989). As explained, Plaintiff has not demonstrated

hat his First or Fourteenth Amendment rights were violated.

Accordingly, Plaintiff has failed to state a claim for conspiracy.

This Order does not address the merits of Plaintiff s state law claims

igainst the individual defendants. When a federal court has dismissed all

laims over which it has original jurisdiction, it may, at its discretion, decline

) exercise supplemental jurisdiction over the remaining state law claims. 28

r.S.C. § 1367(c)(3); Carlsbad Tech.. Inc, v. HIF Bio. Inc.. 556 U.S. 635, 639-

0 (2009). Because Plaintiffs federal claims are subject to dismissal, Plaintiffs

■fate law claims also are subject to dismissal.

State Law Claims Against Individual Defendants

♦

CONCLUSION

Based upon the deficiencies identified above, the Complaint is subject to

dismissal. The Court provides Plaintiff with several options regarding how to

5 | proceed. Within thirty (30) days of this Order, Plaintiff shall select and file

6 ! one of the following:

7 ;

If Plaintiff believes he can in good faith remedy the deficiencies set

forth above, he shall file a First Amended Complaint attempting to

remedy the defects of the Complaint. Plaintiff is advised that if he

elects to file a First Amended Complaint and the allegations

remain deficient, the Court is unlikely to grant or recommend

further leave to amend. Plaintiffs First Amended Complaint

should bear the docket number assigned in this case; be labeled

“First Amended Complaint”; and be complete in and of itself

without reference to the prior complaint or any other pleading,

attachment, or document, and shall specify the facts upon which

Plaintiff alleges each named defendant caused any alleged

constitutional violation. The First Amended Complaint may not

alter the nature of this suit by alleging new, unrelated claims. The

Clerk is directed to send Plaintiff a blank Central District civil

rights complaint form, which Plaintiff is encouraged to use.

If Plaintiff disagrees with the above analysis and/or believes he

cannot add sufficient further factual allegations to the Complaint,

then he shall file a Notice of Intent to Proceed with the Complaint.

If Plaintiff chooses to file a Notice of Intent, the Court will likely

recommend that the District Judge dismiss the action without

further leave to amend and provide Plaintiff an opportunity to file

objections.

If Plaintiff no longer wishes to pursue this action, he may dismiss

2 1

it by filing a Notice of Dismissal under Federal Rule of Civil

Procedure 41(a)(1). Plaintiff is advised that a voluntary dismissal

does not constitute a “strike” under 28 U.S.C. § 1915(g), whereas a

dismissal of an action filed by a prisoner because it “fails to state a

claim upon which relief may be granted” would constitute a

“strike.” See 28 U.S.C. § 1915(g). The Clerk also is directed to

8 .

send Plaintiff a Central District request for dismissal form.

Plaintiff is admonished that, if he fails to timely file a response as

directed in this Order, the Court will recommend that this action be

dismissed for failure to state a claim, for failure to prosecute, and/or for

failure to obey court orders.

Dated: November 25, 2019

JOHND. EARLY

United States Magistrate Judge

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

DEC 9 2020

MOLLY C. DWYER, CLERK

U S. COURT OF APPEALS

J AMES PLAS SAMS,

No. 20-55178

Plaintiff-Appellant,

CALIFORNIA DEPARTMENT OF

CORRECTIONS AND_

REHABILITATION; et ah,

D.C.No. 5:19-cv-0153 8-OD W-JDE

Central District of California,

Riverside

ORDER

Defendants-Appellees.

' Before:

TASHIMA, SILVERMAN, and OWENS, Circuit Judges.

We treat Sams’s “petition for panel rehearing in conjunction with petition

for rehearing en banc” (Docket Entry No. 7) as a combined motion for

reconsideration and motion for reconsideration en banc.

The motion for reconsideration is denied and the motion for reconsideration

en banc is den ied on behalf of the court. See 9th Cir. R. 27-10; 9th Cir. Gen. Ord.

6.11.

No further filings will be entertained in this closed case.

APPENDIX C

,*■

§ 30813

DEPARTMENT OF CORRECTIONS AND REHABILITATION

(0 An inmate or parolee or other person may assist another

inmate or parolee with preparation of an appeal unless the act of

providing such assistance would create an unmanageable situation

including but not limited to: acting contrary to the principles set

forth in sections 3163 and 3270, allowing one offender to exercise

unlawful infiuencc/assume control over another, require an offend

er to access unauthorized areas or areas which would require an

escort, or cause avoidance or non-performance in assigned work

and program activities. Inmates or parolees shall not give any form

of compensation for receiving assistance or receive any form of

compensation for assisting in the preparation of another’s appeal.

The giving or receiving of compensation is considered misconduct

and is subject to disciplinary action.

(g) An inmate or parolee shall not submit an appeal on behalf of

another person.

(h) Group appeal. If a group of inmates/parolees intend to ap

peal a j -licy, decision, action, condition or omission affecting all

membcis of the group, one CDCR Form 602, Inmate/Parolee Ap

peal, s!i ill be submitted describing the appeal issue(s) and action

reques! d, accompanied by a CDCR Form 602-G (08/09), Inmate/

Parolee Group Appeal, which is incorporated by reference, with

the legible name, departmental identification number, assignment,

housing, and dated signature of the inmate or parolee who prepared

the appeal. Each page of the CDCR Form 602-G must contain the

appeal issue, action requested, and a statement that all the under

signed agree with the appeal issue/action requested.

(1) ’! uc legible names of the participating inmates/parolees, departmc al identification mini! :s, assignments, housing, and dated

signatu -s shall be included :■: the space provided on the Inmate/

Parolee Group Appeal form and no other signature page shall be

accepted by the appeals coordinator.

(2) The inmate or parolee submitting the appeal shall be respon

sible fe: sharing the appeal response with the inmates or parolees

who si, .1 the appeal attachment.

(3) 1' .lie inmate or parolee submitting the appeal is transferred,

released, discharged, or requests to withdraw from the group ap

peal, rc muses shall be directed to the next inmate or parolee listed

on the ..■■■peal attachment who remains at the facility/region, and

who si. .! be responsible for sharing the response with the other

inmate' vlt- parolees identified . i the appeal.

(4) r i appeal shall not be .-opted or processed as a group ap

peal if . c mailer under appeal r\-< ittires a response to a specific set

of facts such as disciplinary .

staff complaint appeals) that are

not the .ime for all particip:. w in the appeal. In such case, the

'^group

ucaFshall'bd'sereoiu- : • ui and retum6eTt<J the inmate of

parolee abrnitting the appe;. vith directions to advise all those

who si -d the appeal attachment to submit individual appeals on

their sc .rate issues.

(5) l .ery inmate or parolee who signs a group appeal is ineli

gible to ubmit a separate appeal on the same issue.

(6) A roup appeal count-, toward each appellant’s allowable

numbe. . appeals filed in a . ! calendar clay period,

(i) h. .;iple appeals of die same issue. When multiple appeals

are recc d from more than .c inmate or parolee on an identical

issue, e :i such appeal shall ;-c individually processed. However,

if othei . .sues in addition or eMianeous to the multiple appeal is

sue arc • -ntained in the subm' J appeal, this particular complaint

shall n> ne processed as a n. fi.fic appeal, but will be subject to

procesas a separate, indie ml appeal.

(1) 'I

original inmate or

lee, and as needed for clarifica

tion of

ues, one or more o.

other inmates or parolees, shall

be inte; wed.

(2) 'i

appellant shall be

. Good with an appeal response.

A state

at shall be include

i me response indicating that the

appeal has been designated as one of multiple identical appeals for

processing purposes and the same response is being distributed to

each appellant.

NOTE: Authority cited: Section 5058, Penal Code. Reference: Sections

832.5(a) and 5054, Penal Code; Civil Rights of Institutionalized Per

sons Act; Title 42 U.S.C. Section 1997 ct seq., Public Law 96-247, 94

Stat. 349; and Section 35.107, Title 28, Code of Federal Regulations.

HISTORY:

1. New section filed 5-18-89 as an emergency; operative 5-18-89

(Register 89, No. 21). A Certificate of Compliance must be trans

mitted to OAL within 120 days or emergency language will be

repealed on 9-15-89.

2. Certificate of Compliance as to 5-18-89 order transmitted to OAL

9-7-89 and filed 10-10-89 (Register 89, No. 41).

3. New subsection (g) filed 5-6-92 as an emergency; operative 5-6-92

(Register 92, No. 19). A Certificate of Compliance must be trans

mitted to OAL 9-3-92 or emergency language will be repealed by,. .

operation of iaw on the following day.

4. Certificate of Compliance as to 5-6-92 order transmitted to OAL

8-31-92 and filed 10-7-92 (Register 92, No. 41).

5. Amendment of subsection (a) and Note filed 4-7-95 as an emer

gency pursuant to Penal Code section 5058; operative 4-7-95

(Register 95, No. 14). A Certificate of Compliance must be trans

mitted to OAL by 9-14-95 or emergency language will be repealed

by operation of law on the following day.

6. Certificate of Compliance as to 4-7-95 order transmitted to OAL

6-26-95 and filed 7-25-95 (Register 95, No. 30).

7. Amendment of subsections (a)(1), (a)(2), (c) and (f)(1) filed

12-23-96 as an emergency; operative 12-23-96 (Register 96,

No. 52). Pursuant to Penal Code section 5058(e), a Certificate of

Compliance must be transmitted to OAL by 6-2-97, or emergency

language wili be repealed by operation of law on the following

day.

8. Amendment of subsections (a)(1), (a)(2), (c) and (0(1) refiled

5-29-97 as an emergency; operative 6-2-97 (Register 97, No. 22),

A Certificate of Compliance must be transmitted to OAL by

9-30-97 or emergency language will be repealed by operation of

law on the following day.

9. Editorial correction of History 8 (Register 97, No. 24).

10. Certificate of Compliance as to 5-29-97 order, including amend

ment of subsection (c), transmitted to OAL 9-25-97 and filed

11-7-97 (Register 97, No. 45).

11. Amendment of section heading, repealer and new section and

amendment of Note filed 12-13-2010 as an emergency; operative

1-28-201! (Register 2010, No. 5 l). Pursuant to Penal Code sec

tion 5058.3, a Certificate of Compliance must be transmitted to

OAL by 7-7-2011 or emergency language will be repealed by op

eration of law on the following day.

12. Certificate of Compliance as to 12-13-20iG order, includingamendment of subsections (b), (e)-(f) and (h)(6), transmitted to

OAL 6-15-201! and filed 7-28-2011 (Register 2011. No. 30).

3084.3. Supporting Documents.

(a) An inmate or parolee shall obtain and attach ail support

ing documents, as described in section 3084(h), necessary for the

clarification and/or resolution of his or her appeal issue prior to

submitting the appeal to the appeals coordinator.

(b) The inmate or parolee shall not delay submitting an appeal

within time limits established in.section 3084.8 if unable to obtain

supporting documents, but shall submit the appeal with all avail

able supporting documents and in Part B of their CDCR Form 602

(Rev. 08/09), Inmate/Parolee Appeal, provide an explanation why

any remaining supporting documents are not available. Time limits

for filing an appeal arc not stayed by failure to obtain supporting

documentation and commence as set forth in subsection 3084.8(b).

result in the appeal being rejected as specified in subsection

3084.6(b)(7). The appeals coordinator shall inform the inmate or

parolee that the appeal is rejected because necessary supporting

TITLE 15

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