(PC) Gann v. Corral et al, No. 1:2019cv00439 - Document 15 (E.D. Cal. 2020)
Court Description: FINDINGS and RECOMMENDATIONS recommending that this action proceed against CO Piper and CO Garcia on a First Amendment retaliation claim and all remaining claims and defendants be dismissed without leave to amend; supplemental jurisdiction be decline d pursuant to 28:636(b)(1) re 11 Amended Prisoner Civil Rights Complaint ;referred to Judge Drozd); ORDER GRANTING 13 Motion for Screening, signed by Magistrate Judge Jennifer L. Thurston on 7/26/2020. ( Objections to F&R due 14-Day Deadline )(Martin-Gill, S)
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(PC) Gann v. Corral et al Doc. 15 Case 1:19-cv-00439-DAD-JLT Document 15 Filed 07/27/20 Page 1 of 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 NATHANIEL MARCUS GANN, Case No. 1:19-cv-0439-DAD-JLT (PC) 12 Plaintiff, 13 ORDER GRANTING DEFENDANTS’ REQUEST FOR SCREENING; AND v. 14 R. GARCIA, et al., 15 Defendants. FINDINGS AND RECOMMENDATIONS TO DISMISS NON-COGNIZABLE CLAIMS (Docs. 11, 13.) 16 FOURTEEN-DAY DEADLINE 17 18 Plaintiff has filed a first amended complaint asserting constitutional claims against 19 governmental employees and/or entities. (Doc. 11.) Generally, the Court is required to screen 20 complaints brought by inmates seeking relief against a governmental entity or an officer or 21 employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint 22 or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious,” that fail 23 to state a claim upon which relief may be granted, or that seek monetary relief from a defendant 24 who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee, 25 or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the 26 court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be 27 granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 28 /// 1 Dockets.Justia.com Case 1:19-cv-00439-DAD-JLT Document 15 Filed 07/27/20 Page 2 of 16 1 I. Pleading Standard 2 A complaint must contain “a short and plain statement of the claim showing that the pleader 3 is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 4 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 5 statements, do not suffice,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. 6 v. Twombly, 550 U.S. 544, 555 (2007)), and courts “are not required to indulge unwarranted 7 inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation 8 marks and citation omitted). While factual allegations are accepted as true, legal conclusions are 9 not. Iqbal, 556 U.S. at 678. 10 Prisoners may bring § 1983 claims against individuals acting “under color of state law.” See 11 42 U.S.C. § 1983, 28 U.S.C. § 1915(e) (2)(B)(ii). Under § 1983, Plaintiff must demonstrate that 12 each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 13 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a 14 plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 15 969 (9th Cir. 2009). Prisoners proceeding pro se in civil rights actions are entitled to have their 16 pleadings liberally construed and to have any doubt resolved in their favor, Hebbe v. Pliler, 627 17 F.3d 338, 342 (9th Cir. 2010) (citations omitted), but nevertheless, the mere possibility of 18 misconduct falls short of meeting the plausibility standard, Iqbal, 556 U.S. at 678; Moss, 572 F.3d 19 at 969. 20 II. Plaintiff’s Allegations 21 Plaintiff’s claims arose during his incarceration at California Substance Abuse and 22 Treatment Facility (“CSTAF”) and at Valley State Prison (“VSP”). He names 17 defendants, 23 including two institutional defendants: CSATF and the California Department of Corrections and 24 Rehabilitation. On the CSATF Receiving and Release (“R&R”) staff, Plaintiff names Correctional 25 Officers R. Garcia, B. Piper, D. Ibarra, W. Cotter, and N. Scaife. On the CSATF administrative 26 staff, he names Associate Warden M. Hacker and Warden S. Sherman. He also names five 27 individuals involved in the processing of an inmate appeal: CSATF Appeals Coordinators J. 28 Zamora, J. Corral, and R. Ramos; and Appeals Examiner T. Lee and Chief at the Office of Appeals 2 Case 1:19-cv-00439-DAD-JLT Document 15 Filed 07/27/20 Page 3 of 16 1 M. Voong. Additionally, he names VSP Sergeant S. Clark. Lastly, he names CSATF John Doe 1 2 (believed to be either R. Garcia or N. Scaife) and John Doe 2 (a CSATF mailroom employee). 3 Plaintiff asserts several claims arising under the U.S. Constitution, including: (1) First 4 Amendment retaliation, (2) First Amendment mail tampering, (3) First Amendment access to court, 5 (4) First Amendment religious observance and expression, (5) Eighth Amendment cruel and 6 unusual punishment, (6) Fourteenth Amendment right to property, (7) Fourteenth Amendment 7 grievance process, (8) Fourteenth Amendment false allegations, and (9) Fourteenth Amendment 8 estoppel. Plaintiff also asserts claims arising under California state law. Plaintiff seeks damages, 9 declaratory relief, and injunctive relief. 10 Plaintiff’s allegations may be fairly summarized as follows: 11 A. Retaliation 12 Plaintiff was housed at CSATF from December 2014 to December 2016 before his transfer 13 to VSP. During his incarceration at CSATF, Plaintiff was an outspoken member of the Inmate 14 Advisory Counsel (“IAC”) and a frequent filer of inmate appeals and related documents 15 (government claims forms, reports to the Office of Inspector General, etc.). Several defendants 16 were present at some of these IAC meetings, to include CO Cotter, Associate Warden Hacker, and 17 Warden Sherman. 18 On December 27, 2016, the IAC engaged in an adversarial meeting with R&R staff, 19 including CO Piper and CO Garcia, regarding the wrongful confiscation of inmates’ property. The 20 next day, Plaintiff was called to R&R where CO Piper and CO Garcia were working. When he 21 arrived, these defendants said, “Well look who it is. It’s the [IAC] guy.” CO Garcia asked, “What 22 should I do with him?” CO Piper responded, “Whatever you want” and, turning to Plaintiff, said, 23 “Bet you won’t bitch about us after today.” They then confiscated Plaintiff’s personal property, 24 which included a typewriter, legal documents and records, fiction manuscripts, Magic the 25 Gathering cards, personal photographs, trial transcripts and appellate documents, and appliances. 26 When Plaintiff asked that the property be set aside so that he could appeal the issue, CO Garcia 27 said, “You’re never gonna get this stuff back. I don’t care what you file. It’ll already be gone.” That 28 evening, Plaintiff’s wife complained to CO Garcia and CO Piper’s supervisor, CO Scaife, about 3 Case 1:19-cv-00439-DAD-JLT Document 15 Filed 07/27/20 Page 4 of 16 1 the confiscated property. CO Scaife took no action, and Plaintiff was transferred to VSP the next 2 morning. Plaintiff believes his Magic the Gathering cards and various gifts were “stolen/taken by 3 John Doe #1 due to the entirety of the situation.” 4 Plaintiff filed an inmate grievance following the confiscation of his property. During the 5 review of the appeal, CO Ibarra claimed to have located some of Plaintiff’s property and indicated 6 that he would send it to Plaintiff via institutional mail. However, “[a]fter conferring with R. 7 Garcia,” CO Ibarra then joined with the “Green Wall (Prison Officer Gang)” to destroy some of 8 the property under the guise that it included illicit materials. Specifically, Plaintiff claims CO Ibarra 9 and Associate Warden Hacker informed him that his legal materials were missing and that, in their 10 place, was another inmate’s personal property that included pornography. 11 On March 8, 2018, Warden Sherman “upheld the confiscation and destruction of property 12 … citing a lack of evidence despite his staff admissions of guilty and documentary evidence.” 13 On March 13, 2017, VSP’s Sergeant Clark called Plaintiff to sign a CDC-193 form (“Trust 14 Account Withdrawal Order”) that Plaintiff claims was “manipulated by CSATF and its R&R staff.” 15 Sergeant Clark told Plaintiff to fill out the top portion, which authorized a trust withdrawal, and the 16 bottom portion, which was a shipping label. Sergeant Clark then told Plaintiff to complete the 17 middle portion only if he was donating his property. As instructed, Plaintiff filled out the top and 18 bottom portions but left the middle portion blank. 19 On March 14, 2017, Sergeant Clark authored a CDC 128-B (“General Chrono”) accusing 20 Plaintiff of refusing to cooperate with the appeals process by refusing to sign the trust withdrawal. 21 Accordingly, she denied Plaintiff’s appeal. Plaintiff claims Sergeant Clark authored this falsified 22 document at the direction of CSATF CO Cotter, who “also joined in the retaliation,” and that 23 Sergeant Clark “served as the intermediary for her Green Wall friends at CSATF (Ibarra, Cotter, 24 and Scaife – on behalf of the grievance against Garcia [and] Piper).” 25 On July 10, 2018, Plaintiff’s inmate appeal was denied at the third level of review by T. 26 Lee and M. Voong with citation to institutional regulations relating to the safety of staff and 27 inmates. Plaintiff accuses defendants Zamora, Corral, Ramos, Lee, and Voong of delaying and 28 denying his administrative grievance “in furtherance of a retaliatory scheme” with the other named 4 Case 1:19-cv-00439-DAD-JLT Document 15 Filed 07/27/20 Page 5 of 16 1 defendants. 2 At some point during the appeal of his confiscated property, Plaintiff received his typewriter 3 back, but it was broken. He was then offered another typewriter but only if he signed a waiver of 4 his right to file a tort claim in state court. “This was done by Defendant Cotter, Ibarra, and Scaife.” 5 B. Mail Tampering Plaintiff has filed several complaints to state agencies regarding CO Garcia and CO Piper’s 6 7 confiscation of his property and other issues related to the conditions of his confinement. In a six8 month period, plaintiff claims that only one letter was delivered. Plaintiff later “discovered” that 9 his mail was being “intercepted by John Doe #2,” a CSATF mailroom employee. He claims that 10 the failure to send the outgoing mail has resulted, inter alia, in Plaintiff being barred from pursuing 11 claims related to a back injury in Gann v. Ugwueze, Case No. 17c0341, a state action filed in the 12 Kings County Superior Court. Allegedly, the government claimed that it did not receive Plaintiff’s 13 government claims form even though the form is listed on the CSATF outgoing mail log. Plaintiff 14 does not describe how he “discovered” that John Doe 2 “intercepted” his mail during the six-month 15 period. 16 C. Access to Court 17 Plaintiff claims that the property confiscated by CO Garcia and CO Piper included legal 18 materials, the loss of which affected his ability to litigate cases. The materials included notes 19 containing dates, names, and specific events related to the alleged denial of meals by some 20 institutional staff members; notes regarding the alleged infringement of his religious freedom; and 21 legal materials related to his claim of a broken back that serves as the basis of the aforementioned 22 state case, Gann v. Ugwueze. 23 24 D. Religious Observance and Expression Plaintiff is an observant Jewish inmate. On December 28, 2016, Plaintiff approached an 25 unidentified CSATF captain because staff members had denied Jewish inmates the ability to light 26 Chanukah candles and meet for services over the previous two days. Plaintiff claims that these staff 27 members believed Chanukah was a fake holiday even though the CSATF captain had previously 28 signed a memorandum authorizing observance of Chanukah. Plaintiff alleges that issues related to 5 Case 1:19-cv-00439-DAD-JLT Document 15 Filed 07/27/20 Page 6 of 16 1 the observance of Jewish holidays had been ongoing for a year. 2 Plaintiff also claims that during a one-week period, the dates of which remain uncertain, 3 meals were forcibly taken from him and other Jewish inmates. Plaintiff later brought this and other 4 issues up to Associate Warden Hacker and Warden Sherman at a CSATF IAC meeting to no avail. 5 Warden Sherman is alleged to have laughed and said sarcastically, “I’m sure my staff would never 6 do that intentionally.” 7 III. Discussion 8 A. Eleventh Amendment Immunity 9 Plaintiff was previously informed that his claims against the CDCR and CSATF are 10 barred by the Eleventh Amendment. The Eleventh Amendment bars any suit against a state or 11 state agency absent a valid waiver or abrogation of its sovereign immunity. Seminole Tribe of 12 Florida v. Florida, 517 U.S. 44, 54 (1996); Hans v. Louisiana, 134 U.S. 1, 10 (1890). This 13 immunity applies regardless of whether a state or state agency is sued for damages or injunctive 14 relief, Alabama v. Pugh, 438 U.S. 731, 732 (1978), and regardless of whether the plaintiff's claim 15 arises under federal or state law, Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 121 16 (1984). 17 Though Congress may validly abrogate a state's sovereign immunity by statute, the 18 Supreme Court has repeatedly emphasized that “§ 1983 was not intended to abrogate a State's 19 Eleventh Amendment immunity.” Kentucky v. Graham, 473 U.S. 159, 169 n.17 (1985); accord 20 Quern v. Jordan, 440 U.S. 332, 342 (1979). 21 Both the Ninth Circuit and the Supreme Court have recognized that the “State of 22 California has not waived its Eleventh Amendment immunity with respect to claims brought 23 under § 1983 in federal court.” Dittman v. California, 191 F.3d 1020, 1025-26 (9th Cir. 1999); 24 see also Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985), superseded on other 25 grounds by statute, Rehabilitation Act Amendments of 1986, 42 U.S.C. § 2000d–7 (observing 26 that the California Constitution does not waive the state's Eleventh Amendment immunity). 27 In the context of prisoner lawsuits against CDCR, the Ninth Circuit has expressly and 28 repeatedly held that CDCR and prisons within CDCR are immune from suit under the Eleventh 6 Case 1:19-cv-00439-DAD-JLT Document 15 Filed 07/27/20 Page 7 of 16 1 Amendment. See, e.g., Brown v. Cal. Dep't of Corrs., 554 F.3d 747, 752 (9th Cir. 2009) (“The 2 district court correctly held that the California Department of Corrections and the California 3 Board of Prison Terms were entitled to Eleventh Amendment immunity.”); Fulcher v. Cal. Dep't 4 of Corrs., 297 Fed. App'x 645, 646 (9th Cir. 2008) ( “[T]he California Department of Corrections 5 ... is a state agency that is immune from liability under the Eleventh Amendment.”); cf. Holley v. 6 Cal. Dep't of Corrs., 599 F.3d 1108, 1111-12 (9th Cir.2010) (affirming dismissal of complaint 7 against CDCR because California had not constructively waived its sovereign immunity by 8 accepting federal funds). The CDCR and CSATF are therefore improper defendants. 9 B. First Amendment 10 a. Retaliation 11 Plaintiff claims that most, if not all, of the defendants’ actions were in retaliation for 12 Plaintiff’s outspokenness on the IAC and his filing of grievances, letters, and the like regarding 13 the conditions of his confinement. 14 The fundamentals of a retaliation claim are easily summarized: “Within the prison 15 context, a viable claim of First Amendment retaliation entails five basic elements: (1) An 16 assertion that a state actor took some adverse action against an inmate (2) because of (3) that 17 prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First 18 Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.” 19 Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (citing Resnick v. Hayes, 213 F.3d 20 443, 449 (9th Cir. 2000)). It is the plaintiff's burden to prove each of these elements. Pratt v. 21 Rowland, 65 F.3d 802, 806 (9th Cir. 1995). 22 Plaintiff states a cognizable First Amendment retaliation claim against CO Garcia and CO 23 Piper for confiscating his personal property on December 28, 2016, immediately following 24 Plaintiff’s exercise of his free speech rights during an IAC meeting the day before. Regarding the 25 remaining defendants, Plaintiff’s allegations rely entirely on unsupported conjecture. As such, 26 they are not cognizable. 27 28 b. Mail Tampering Plaintiff alleges that, over a six-month period, John Doe 2 tampered with his outgoing 7 Case 1:19-cv-00439-DAD-JLT Document 15 Filed 07/27/20 Page 8 of 16 1 mail, to include a California Tort Claims Act form mailed in support of a claim related to a back 2 injury. While it is true that prisoners enjoy a First Amendment right to send and receive mail, 3 Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995), Plaintiff’s allegations of mail tampering also 4 appear to be based solely on speculation. This claim must therefore be dismissed. 5 6 c. Access to Court Inmates have a fundamental constitutional right of access to the courts. Lewis v. Casey, 7 518 U.S. 343, 346 (1996). Claims for denial of access to the courts may arise from the frustration 8 or hindrance of “a litigating opportunity yet to be gained” (forward-looking access claim) or from 9 the loss of a meritorious suit that cannot now be tried (backward-looking claim). Christopher v. 10 Harbury, 536 U.S. 403, 412–15 (2002). 11 In either instance, “the injury requirement is not satisfied by just any type of frustrated 12 legal claim.” Lewis, 518 U.S. at 354. Inmates do not enjoy a constitutionally protected right “to 13 transform themselves into litigating engines capable of filing everything from shareholder 14 derivative actions to slip-and-fall claims.” Id. at 355. Rather, the type of legal claim protected is 15 limited to direct criminal appeals, habeas petitions, and civil rights actions such as those brought 16 under section 1983 to vindicate basic constitutional rights. Id. at 354 (quotations and citations 17 omitted). “Impairment of any other litigating capacity is simply one of the incidental (and 18 perfectly constitutional) consequences of conviction and incarceration.” Id. at 355 (emphasis in 19 original). 20 To assert a forward-looking access claim, the non-frivolous “underlying cause of action 21 and its lost remedy must be addressed by allegations in the complaint sufficient to give fair notice 22 to a defendant.” Christopher, 536 U.S. at 416. To state such a claim, the plaintiff must describe 23 this “predicate claim...well enough to apply the ‘non-frivolous' test and to show that the 24 ‘arguable’ nature of the underlying claim is more than hope.” Id. It is not enough for Plaintiff 25 merely to conclude that the claim was non-frivolous. The complaint should instead “state the 26 underlying claim in accordance with Federal Rule of Civil Procedure 8(a) just as if it were being 27 independently pursued, and a like plain statement should describe any remedy available under the 28 access claim and presently unique to it.” Id. at 417-18. 8 Case 1:19-cv-00439-DAD-JLT Document 15 Filed 07/27/20 Page 9 of 16 1 Moreover, when a prisoner asserts that he was denied access to the courts and seeks a 2 remedy for a lost opportunity to present a legal claim (i.e, a backward-looking claim), he must 3 show: (1) the loss of a non-frivolous or arguable underlying claim; (2) the official acts that 4 frustrated the litigation; and (3) a remedy that may be awarded as recompense but that is not 5 otherwise available in a future suit. Phillips v. Hust, 477 F.3d 1070, 1076 (9th Cir. 2007) (citing 6 Christopher, 536 U.S. at 413-14) (overruled on other grounds, Hust v. Phillips, 555 U.S. 1150 7 (2009) (reversed and remanded Phillips v. Hust, on qualified immunity grounds without change 8 or discussion of elements for an access to court claim)). 9 Finally, "[a]lthough prison officials may not obstruct a prisoner's access to the courts by 10 unreasonably blocking his access to a law library, prison officials may place reasonable 11 limitations on library access in the interest of the secure and orderly operation of the institution." 12 Id. (citing Bell v. Wolfish, 441 U.S. 520, 545–48 (1979)). “[P]rison law libraries and legal 13 assistance programs are not ends in themselves, but only the means for ensuring a reasonably 14 adequate opportunity to present claimed violations of fundamental constitutional rights to the 15 courts.” Id. at 351 (internal quotes and citations omitted). 16 Liberally construed, Plaintiff’s mail tampering claim is a backward-looking access to 17 court claim because he alleges that John Doe’s conduct prevented Plaintiff from pursuing a tort 18 claim in his state case. Plaintiff does not, however, properly allege an injury in fact because his 19 state law tort claim is not one of the types of claims that must underly an access to court claim 20 (i.e., a criminal appeal, a habeas petition, or a civil rights claim). 21 Plaintiff further alleges that his confiscated property included legal materials relevant to 22 the presentation of claims concerning missed meals and religious freedom. But Plaintiff again 23 fails to allege actual injury since, other than general allegations related to these lost claims, he 24 does not identify the underlying claims in sufficient detail to allow the Court to determine their 25 viability. Without these additional allegations, the Court is again unable to properly analyze his 26 access to court claim. 27 28 d. Free Exercise The Free Exercise Clause of the First Amendment provides that “Congress shall make no 9 Case 1:19-cv-00439-DAD-JLT Document 15 Filed 07/27/20 Page 10 of 16 1 law respecting an establishment of religion, or prohibiting the free exercise thereof....” U.S. 2 Const. amend I. The United States Court of Appeals for the Ninth Circuit summarizes the 3 application of the Free Exercise Clause in a state prison context as follows: 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The First Amendment, applicable to state action by incorporation through the Fourteenth Amendment, Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 8, 67 S.Ct. 504, 91 L.Ed. 711 (1947), “prohibits government from making a law ‘prohibiting the free exercise [of religion].’ ” Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972) (per curiam) (alteration in original). The Supreme Court has repeatedly held that prisoners retain the protections of the First Amendment. See, e.g., O'Lone v. Estate of Shabazz, 482 U.S. 342, 348, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987); Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974); Cruz, 405 U.S. at 322, 92 S.Ct. 1079. A prisoner's right to freely exercise his religion, however, is limited by institutional objectives and by the loss of freedom concomitant with incarceration. O'Lone, 482 U.S. at 348, 107 S.Ct. 2400. Hartmann v. California Dep’t of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013). “To prevail on their Free Exercise claim, Plaintiffs must allege facts plausibly showing that the government denied them ‘a reasonable opportunity of pursuing [their] faith comparable to the opportunity afforded fellow prisoners who adhere to conventional religious precepts.’” Id. (alteration in original) (quoting Cruz, 405 U.S. at 322). To implicate the Free Exercise Clause, a prisoner must show that the belief at issue is both “sincerely held” and “rooted in religious belief.” Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994); see also Shakur, 514 F.3d 884–85 (noting the Supreme Court's disapproval of the “centrality” test and finding that the “sincerity” test in Malik determines whether the Free Exercise Clause applies). If the inmate makes his initial showing of a sincerely held religious belief, he must establish that prison officials substantially burdened the practice of his religion by preventing him from engaging in conduct that he sincerely believes is consistent with his faith. Shakur, 514 F.3d at 884–85. Government action substantially burdens the exercise of religion when the action is “oppressive to a significantly great extent.” Int'l Church of Foursquare Gospel v. City of San Leandro, 673 F.3d 1059, 1067 (9th Cir. 2011) (citation and internal quotation marks omitted). “That is, a ‘substantial burden’ on ‘religious exercise’ must impose a significantly great restriction or onus upon such exercise.” Id. (quoting San Jose Christian College v. City of 10 Case 1:19-cv-00439-DAD-JLT Document 15 Filed 07/27/20 Page 11 of 16 1 Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004)). “A substantial burden exists where the 2 governmental authority puts substantial pressure on an adherent to modify his behavior and to 3 violate his beliefs.” Id. (citation and internal quotation marks omitted) 4 Additionally, The Religious Land Use and Institutionalized Persons Act of 2000 5 (“RLUIPA”) provides: 6 7 8 9 10 No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution…, even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person: (1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling government interest. 11 42 U.S.C. § 2000cc-1(a). Plaintiff must allege facts demonstrating that defendant substantially 12 burdened the exercise of his religious beliefs. Warsoldier v. Woodford, 418 F.3d 989, 994-95 13 (9th Cir. 2005). In any RLUIPA claim, one must first identify the “religious exercise” allegedly 14 impinged upon, and then must ask whether the prison regulation or action at issue “substantially 15 burdens” that religious exercise. Greene v. Solano County Jail, 513 F.3d 982, 987 (9th Cir. 16 2008). 17 “RLUIPA does not define ‘substantial burden,’ but [the Ninth Circuit] has held that ‘a 18 substantial burden on religious exercise must impose a significantly great restriction or onus upon 19 such exercise.’” Hartmann, 707 F.3d at 1124–25 (citing San Jose Christian Coll. v. City of 20 Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004)). “Generally, the term ‘substantial burden’ in 21 RLUIPA is construed in light of federal Supreme Court and appellate jurisprudence involving the 22 Free Exercise Clause of the First Amendment prior to the Court's decision in Emp't Div. Dep't of 23 Human Res. of Oregon v. Smith, 494 U.S. 872, 878–82 (1990).” Int'l Church of Foursquare 24 Gospel, 673 F.3d at 1067 (citing Guru Nanak, 456 F.3d at 988). “In the context of a prisoner's 25 constitutional challenge to institutional policies, this court has held that a substantial burden 26 occurs ‘where the state ... denies [an important benefit] because of conduct mandated by religious 27 belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate 28 his beliefs.’” Hartmann, 707 F.3d at 1124–25 (citing Warsoldier v. Woodford, 418 F.3d 989, 995 11 Case 1:19-cv-00439-DAD-JLT Document 15 Filed 07/27/20 Page 12 of 16 1 (9th Cir. 2005)). 2 Applying these legal standards, the Court finds that Plaintiff has not sufficiently alleged a 3 claim for unconstitutional burden of religion under either the Free Exercise clause or RLUIPA. 4 Plaintiff’s allegations fail for vagueness and the inadequate linkage of his claim to any defendant. 5 While Plaintiff does allege that Associate Warden Hacker and Warden Sherman were made 6 aware of problems concerning the denial of holiday services for Jewish inmates over a one-year 7 period, it is not clear what the specific problems were, how the services were denied, who denied 8 the services, or even when the services were denied. Similar questions arise in the context of 9 Plaintiff claims that he and other Jewish inmates were denied meals for a one-week period: 10 Plaintiff does not allege who denied the meals, whether all or just some meals were denied, or 11 when these denials occurred. For these reasons, Plaintiff’s free exercise claim is not cognizable. 12 13 14 C. Due Process a. Personal Property Much of Plaintiff’s complaint is premised on the confiscation, loss, or destruction of his 15 personal property. Prisoners have a protected interest in their personal property. Hansen v. May, 16 502 F.2d 728, 730 (9th Cir. 1974). However, a plaintiff has no due process claim based on 17 Defendants’ unauthorized deprivation of his personal property—whether intentional or negligent— 18 if a meaningful state post-deprivation remedy for his loss is available. See Hudson v. Palmer, 468 19 U.S. 517, 533 (1984). California’s tort claim process provides that adequate post-deprivation 20 remedy. Barnett v. Centoni, 31 F.3d 813, 816–17 (9th Cir. 1994) (citing Cal. Gov’t Code §§ 810– 21 895) (“[A] negligent or intentional deprivation of a prisoner’s property fails to state a claim under 22 section 1983 if the state has an adequate post deprivation remedy.”); see also Teahan v. Wilhelm, 23 481 F. Supp. 2d 1115, 1120 (S.D. Cal. 2007); Kemp v. Skolnik, 2012 WL 366946, at *6 (D. Nev. 24 Feb. 3, 2012) (finding prisoner’s alleged loss or destruction of newspaper, magazines, and books 25 failed to state a Fourteenth Amendment claim pursuant to Hudson and noting that “[i]f Plaintiff 26 wishes to recoup the value of the alleged lost materials, he will have to file a claim in small claims 27 court in state court.”). In light of this authority, Plaintiff fails to state a federal claim for Defendants’ 28 confiscation of his personal property. 12 Case 1:19-cv-00439-DAD-JLT Document 15 Filed 07/27/20 Page 13 of 16 1 2 b. Inmate Grievances Plaintiff again names several Defendants for their role in processing his administrative 3 grievance. Prisoners, however, do not have “a separate constitutional entitlement to a specific 4 prison grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann 5 v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)). Prison officials are not required under federal law 6 to process inmate grievances in any specific way. Plaintiff’s claim that certain Defendants 7 improperly denied or canceled his grievances does not state a cognizable claim for a violation of 8 his due process rights because there is no right to a particular grievance process or response. See, 9 e.g., Towner v. Knowles, 2009 WL 4281999, at *2 (E.D. Cal. Nov. 20, 2009) (plaintiff failed to 10 state claims that would indicate a deprivation of his federal rights after defendant allegedly 11 screened out his inmate appeals without any basis); Williams v. Cate, 2009 WL 3789597, at *6 12 (E.D. Cal. Nov. 10, 2009) (“Plaintiff has no protected liberty interest in the vindication of his 13 administrative claims.”). 14 15 c. False Allegation Plaintiff’s claim against Sergeant Clark appears to be premised on her assertion of a false 16 allegation against Plaintiff in a CDCR 128-B. However, the issuance of a false allegation does 17 not, in and of itself, support a claim under section 1983. See, e.g., Ellis v. Foulk, 2014 WL 18 4676530, at *2 (E.D. Cal. Sept. 18, 2014) (“Plaintiff’s protection from the arbitrary action of 19 prison officials lies in ‘the procedural due process requirements as set forth in Wolff v. 20 McDonnell.’”) (citing Hanrahan v. Lane, 747 F.2d 1137, 1140 (7th Cir. 1984)); Solomon v. 21 Meyer, 2014 WL 294576, at *2 (N.D. Cal. Jan. 27, 2014) (“[T]here is no constitutionally 22 protected right to be free from false disciplinary charges.”) (citing Chavira v. Rankin, 2012 WL 23 5914913, at *1 (N.D. Cal. Nov. 26, 2012) (“The Constitution demands due process, not error-free 24 decision-making.”)); Johnson v. Felker, 2013 WL 6243280, at *6 (E.D. Cal. Dec. 3, 2013) 25 (“Prisoners have no constitutionally guaranteed right to be free from false accusations of 26 misconduct, so the mere falsification of a [rules violation] report does not give rise to a claim 27 under section 1983.”) (citing Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989) and Freeman 28 v. Rideout, 808 F.2d 949, 951-53 (2d Cir. 1986)); Canovas v. California Dept. of Corrections, 13 Case 1:19-cv-00439-DAD-JLT Document 15 Filed 07/27/20 Page 14 of 16 1 2014 WL 5699750, at *2 n.2 (E.D. Cal. Oct. 30, 2014). Accordingly, Plaintiff fails to state a 2 claim against Defendant Clark. 3 D. California State Law Claims 4 Plaintiff brings several state law claims pertaining to the confiscation of his property, 5 including a potential conversion claim, “character assassination,” “harassment,” 6 “embarrassment,” defamation, and “estoppel.” Pursuant to 28 U.S.C. § 1367(a), in any civil 7 action in which the district court has original jurisdiction, the district court “shall have 8 supplemental jurisdiction over all other claims in the action within such original jurisdiction that 9 they form part of the same case or controversy under Article III,” except as provided in 10 subsections (b) and (c). “The district court may decline to exercise supplemental jurisdiction over 11 a claim under subsection (a) if...the claim substantially predominates over the claim or claims 12 over which the district court has original jurisdiction.” 28 U.S.C. § 1367(c)(3). In this case, the 13 only cognizable federal claim is a First Amendment retaliation claim against CO Garcia and CO 14 Piper. The remaining claims, which are based solely on state law, are numerous and will certainly 15 predominate over that single federal claim. For this reason, the Court declines to consider the 16 merits of these state law claims and will recommend that supplemental jurisdiction be declined 17 over them. 18 IV. 19 Conclusion Plaintiff’s first amended complaint states only a First Amendment retaliation claim 20 against CO Piper and CO Garcia. No other claims are cognizable as pled. 21 The Court must now determine whether to allow Plaintiff leave to further amend. Federal 22 Rule of Civil Procedure 15(a)(2) provides that “a party may amend its pleading only with the 23 opposing party’s written consent or the court’s leave. The court should freely grant leave when 24 justice so requires.” Fed. R. Civ. P. 15(a)(2). When determining whether to grant leave to amend, 25 courts weigh certain factors: “undue delay, bad faith or dilatory motive on the part of [the party 26 who wishes to amend a pleading], repeated failure to cure deficiencies by amendments previously 27 allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] 28 futility of amendment[.]” See Foman v. Davis, 371 U.S. 178, 182 (1962). Although prejudice to 14 Case 1:19-cv-00439-DAD-JLT Document 15 Filed 07/27/20 Page 15 of 16 1 the opposing party “carries the greatest weight[,]...a strong showing of any of the remaining 2 Foman factors” can justify the denial of leave to amend. See Eminence Capital, LLC v. Aspeon, 3 Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (per curiam). Furthermore, analysis of these factors can 4 overlap. For instance, a party’s “repeated failure to cure deficiencies” constitutes “a strong 5 indication that the [party] has no additional facts to plead” and “that any attempt to amend would 6 be futile[.]” See Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 988, 1007 (9th Cir. 2009) 7 (internal quotation marks omitted) (upholding dismissal of complaint with prejudice when there 8 were “three iterations of [the] allegations — none of which, according to [the district] court, was 9 sufficient to survive a motion to dismiss”); see also Simon v. Value Behavioral Health, Inc., 208 10 F.3d 1073, 1084 (9th Cir. 2000) (affirming dismissal without leave to amend where plaintiff 11 failed to correct deficiencies in complaint, where court had afforded plaintiff opportunities to do 12 so, and had discussed with plaintiff the substantive problems with his claims), amended by 234 13 F.3d 428, overruled on other grounds by Odom v. Microsoft Corp., 486 F.3d 541, 551 (9th Cir. 14 2007); Plumeau v. Sch. Dist. # 40 Cnty. of Yamhill, 130 F.3d 432, 439 (9th Cir. 1997) (denial of 15 leave to amend appropriate where further amendment would be futile). 16 Plaintiff has had two opportunities to state viable claims. Each time, his allegations were 17 sufficient only as to CO Piper and CO Garcia. It appears, then, that Plaintiff has no additional 18 facts to plead, rendering the option of amendment futile. Accordingly, the Court GRANTS 19 Defendants’ request for screening (Doc. 13), and the Court RECOMMENDS: 20 1. This action proceed against CO Piper and CO Garcia on a First Amendment 21 retaliation claim and all remaining claims and defendants be dismissed without leave 22 to amend; and 23 24 25 2. Supplemental jurisdiction be declined pursuant to 28 U.S.C. § 1367(c)(3) on Plaintiff’s state law claims. These Findings and Recommendations will be submitted to the United States District 26 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 27 fourteen days after being served with these Findings and Recommendations, the parties may file 28 written objections with the Court. The document should be captioned “Objections to Magistrate 15 Case 1:19-cv-00439-DAD-JLT Document 15 Filed 07/27/20 Page 16 of 16 1 Judge’s Findings and Recommendations.” The parties are advised that failure to file objections 2 within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 3 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 5 6 IT IS SO ORDERED. Dated: July 26, 2020 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16
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