Williams v. Hampton ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LANCE WILLIAMS, Case No.: 3:19-cv-1332-CAB-WVG CDCR #AG-2394, 12 ORDER: Plaintiff, 13 vs. (1) DISMISSING CLAIMS AND 14 DEFENDANTS FOR FAILING TO SERGEANT S. HAMPTON, et al., 15 STATE A CLAIM AND AS Defendants. FRIVOLOUS; AND 16 17 (2) DIRECTING USMS TO EFFECT SERVICE OF FIRST AMENDED 18 COMPLAINT ON REMAINING 19 DEEFENDANTS 20 21 22 I. Procedural Background 23 Lance Williams (“Plaintiff”), a prisoner incarcerated at California Men’s Colony 24 (“CMC”) located in San Luis Obispo, California, and proceeding pro se, filed this civil 25 rights action pursuant to 42 U.S.C. § 1983 on July 17, 2019. (See Compl., ECF No. 1.) 26 Williams did not prepay the civil filing fee required to commence a civil action at the 27 time he filed his Complaint; instead, he filed a certified copy of his prison trust account 28 1 statement which the Court liberally construed as a Motion for Leave to proceed In Forma 2 Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). 3 On September 13, 2019, this Court reviewed Plaintiff’s Complaint as well as his 4 litigation history and denied his Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(g). 5 (See ECF No. 5.) The Court identified seven prior federal civil actions and appeals1 filed 6 by Plaintiff in federal court while he was incarcerated that were dismissed as frivolous or 7 for failing to state a claim, and further found his Complaint contained no plausible 8 allegations to suggest he faced “imminent danger of serious physical injury” at the time 9 he filed it. (See ECF No. 5 at 4-7.) Therefore, the Court dismissed Plaintiff’s case 10 without prejudice based on his failure to prepay the filing fees required by 28 U.S.C. 11 § 1914(a). (Id. at 7.) 12 Plaintiff appealed, and on April 2, 2020, the Ninth Circuit reversed this Court’s 13 IFP determination and remanded the case for further proceedings. (ECF No. 11.) The 14 case was re-opened for further proceedings consistent with the Ninth Circuit’s judgment. 15 On May 5, 2020, the Court GRANTED Plaintiff’s Motion to Proceed IFP, 16 DISMISSED claims and defendants for failing to state a claim, and gave Plaintiff the 17 option to file an amended pleading or proceed with his First Amendment retaliation 18 claims against Defendants Tiscornia, Hampton, Gonzalez, Grijalva, and Covello only. 19 (ECF No. 14.) 20 Plaintiff chose the first option and filed his First Amended Complaint (“FAC”) on 21 June 5, 2020. (ECF No. 15.) 22 / / / 23 / / / 24 25 26 1 A review of PACER demonstrates that Plaintiff has filed thirty-seven (37) civil rights lawsuits in the Central, Eastern, and Southern Districts of California and twenty-five (25) 27 appeals in the Ninth Circuit Court of Appeals. See www.pacer.gov (website last visited 28 June 25, 2020.) 1 II. Sua Sponte Screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 2 A. Standard of Review 3 Notwithstanding Plaintiff’s IFP status or the payment of any partial filing fees, the 4 Prison Litigation Reform Act (PLRA”) obligates the Court to review complaints filed by 5 all persons proceeding IFP and by those, like Plaintiff, who are “incarcerated or detained 6 in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of 7 criminal law or the terms or conditions of parole, probation, pretrial release, or 8 diversionary program,” “as soon as practicable after docketing,” and ideally before the 9 service of process upon any Defendant. See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). 10 Under these statutes, the Court must sua sponte dismiss complaints, or any portions 11 thereof, which are frivolous, malicious, fail to state a claim, or which seek damages from 12 defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) 13 (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) 14 (discussing 28 U.S.C. § 1915A(b)). “The purpose of § 1915[] is to ‘ensure that the targets 15 of frivolous or malicious suits need not bear the expense of responding.’” Nordstrom v. 16 Ryan, 762 F.3d 903, 907 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health 17 Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 18 All complaints must contain “a short and plain statement of the claim showing that 19 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 20 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 21 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 22 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining whether 23 a complaint states a plausible claim for relief [is] . . . a context-specific task that requires 24 the reviewing court to draw on its judicial experience and common sense.” Id. The “mere 25 possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also 26 Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 27 / / / 28 1 “When there are well-pleaded factual allegations, a court should assume their 2 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 3 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 4 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 5 allegations of material fact and must construe those facts in the light most favorable to 6 the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that 7 § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). 8 While the court “ha[s] an obligation where the petitioner is pro se, particularly in 9 civil rights cases, to construe the pleadings liberally and to afford the petitioner the 10 benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing 11 Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply essential 12 elements of claims that were not initially pled.” Ivey v. Board of Regents of the University 13 of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 14 “Courts must consider the complaint in its entirety,” including “documents 15 incorporated into the complaint by reference” to be part of the pleading when 16 determining whether the plaintiff has stated a claim upon which relief may be granted. 17 Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Fed. R. Civ. P. 18 10(c) (“A copy of a written instrument that is an exhibit to a pleading for all purposes.”); 19 Schneider v. California Dept. of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). 20 B. Rule 8 21 Plaintiff’s FAC is twenty-five (25) pages of single spaced, rambling handwritten 22 allegations naming twenty-seven (27) defendants. In addition, Plaintiff has attached 23 more than one hundred (100) pages of exhibits. (See ECF No. 15.) Thus, the Court finds 24 that Plaintiff’s FAC fails to comply with Rule 8. Rule 8 of the Federal Rules of Civil 25 Procedure provides that in order to state a claim for relief in a pleading it must contain “a 26 short and plain statement of the grounds for the court’s jurisdiction” and “a short and 27 plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 28 1 8(a)(1) & (2). See McHenry v. Renne, 84 F.3d 1172, 1178–80 (9th Cir. 1996) (upholding 2 Rule 8(a) dismissal of complaint that was “argumentative, prolix, replete with 3 redundancy, and largely irrelevant”); Cafasso, United States ex rel. v. General Dynamics 4 C4 Systems, Inc., 637 F.3d 1047, 1059 (9th Cir. 2011) (citing cases upholding Rule 8 5 dismissals where pleadings were “verbose,” “confusing,” “distracting, ambiguous, and 6 unintelligible,” “highly repetitious,” and comprised of “incomprehensible rambling,” 7 while noting that “[o]ur district courts are busy enough without having to penetrate a 8 tome approaching the magnitude of War and Peace to discern a plaintiff’s claims and 9 allegations.”). 10 C. Plaintiff’s Factual Allegations 11 On April 13, 2019, Plaintiff “went out to court for a hearing.” (FAC at 7.) When 12 Plaintiff returned to Richard J. Donovan (“RJD”), he was “informed by many inmates his 13 name was being thrown around” by Defendant Schmell. (Id.) Plaintiff claims Schmell 14 told other inmates that he had returned a “homework assignment” to her that contained 15 “overfamiliar content.” (Id.) He further claims Schmell told other inmates that Plaintiff 16 was a “tree jumping pedophile night stalker [racial epithet].” (Id.) Plaintiff also alleges 17 that she “told her class of inmate students that if he is found guilty of RVR [Rules 18 Violation Report] she [would be] forced to write Plaintiff up and he should be taught a 19 lesson by being nailed to the stake.” (Id.) Plaintiff claims that Schmell’s “class of 20 students vowed to get Plaintiff if he was found guilty of [the] RVR because of their great 21 respect for Schmell.” (Id.) 22 Plaintiff contends Schmell “authored the RVR in retaliation orchestrated by 23 Sergeant F. Lewis and C/O A. Silva to cause Plaintiff atypical and significant hardships” 24 by having “more time being added to his sentence, [and] giving the Board of Parole 25 ammunition to use the RVR to deny Plaintiff early release.” (Id.) Plaintiff claims he was 26 “labeled a stalker by prisoners and assaulted,” lost privileges and was not able to 27 “participate in any positive programming.” (Id.) 28 1 / / / 2 Plaintiff alleges Silva told him that if Plaintiff “would have kept [Silva] and 3 Lewis’s names out of [Plaintiff’s] appeals and wasn’t having everyone served with 4 lawsuits,” he would not be a “victim of reprisal.” (Id. at 8.) Silva told Plaintiff they 5 would have “let it slide” and they “didn’t give a fuck about that little bitch.” (Id.) 6 Plaintiff has “602 appeal grievances against Lewis and Silva and 5 active lawsuits that 7 include Lewis and Silva.” (Id.) 8 Plaintiff claims that the actions by Schmell “stem from Plaintiff denying 9 [Schmell’s] sexual advances towards him to obtain a personal relationship.” (Id.) 10 Plaintiff further claims that Schmell “found out” that Plaintiff was “illegally incarcerated 11 and was looking to gain a large substantial amount of funds.” (Id.) He claims Schmell 12 became “more and more aggressive” as “Plaintiff’s court date neared” and she made 13 “threats of things she would do if Plaintiff didn’t accept her advances.” (Id.) 14 Plaintiff alleges the RVR “authored by Schmell” and “reviewed and approved” by 15 Silva and Lewis “had numerous fabrications.” (Id. at 9.) Plaintiff claims that the 16 disciplinary hearing was presided over by Senior Hearing Officer Lieutenant Gonzalez 17 “without Plaintiff present.” (Id.) Plaintiff claims Gonzalez “did not follow protocol 18 when an inmate is not present” and argues Gonzalez “should have suspended hearing” 19 and “inquire” why Plaintiff was not present. (Id.) This was not done “showing 20 [Gonzalez] was not an impartial hearing officer.” (Id.) 21 Gonzalez and Correctional Officer Ramirez, and Correctional Officer Erikson 22 “deprived Plaintiff his opportunity to call witnesses and present documentary evidence at 23 hearing.” (Id. at 9-10.) Erikson purportedly told Ramirez that Plaintiff “refused to attend 24 hearing.” (Id. at 10.) However, Plaintiff claims he “NEVER” refused to come to the 25 hearing because he was “’NEVER’ told a hearing was taking place.” (Id.) He further 26 claims Ramirez “falsified” documentation indicating that Plaintiff “refused to sign a 27 waiver” of his right to appear at his hearing. (Id.) Plaintiff alleges there was “no written 28 1 statement as to the evidence relied upon to find Plaintiff guilty.” (Id.) Moreover, the 2 “decision was not supported by a preponderance of evidence.” (Id.) 3 Plaintiff contends that Gonzalez “adopted Schmell’s and Silva’s accounts made in 4 the RVR report to find Plaintiff guilty which is illegal.” (Id.) When Plaintiff purportedly 5 discovered that his “hearing was held without him,” he submitted a “22 form request” to 6 Ramirez. (Id.) Ramirez told Plaintiff “we already held your hearing, Erikson said you 7 refused.” (Id. at 10-11.) Plaintiff filed an appeal that “was granted due to the high 8 multiple amounts of due process violations.” (Id. at 11.) Ultimately, the RVR was 9 “reissued/reheard due to the RVR not being issued in 15-day timeframe.” (Id.) 10 Plaintiff’s second hearing was held, and Plaintiff was found “not guilty” 11 purportedly “due to the RVR being falsified and numerous due process violations.” (Id.) 12 However, Plaintiff claims due to the loss of privileges penalty he received following the 13 first hearing, it “caused him to lose his attorney for his criminal appeal case.” (Id.) 14 Plaintiff also alleges he was denied “yard time” for ninety days which “deprived him of 15 opportunity to get needed exercise outside his cell.” (Id. at 12.) In addition, Plaintiff 16 claims he was “deprived access to [the] law library on multiple occasions.” (Id. at 13.) 17 As a result, Plaintiff claims he was unable to “meet filing deadline to present a claim on a 18 habeas corpus petition” and he had civil rights cases dismissed “due to statute of 19 limitations.” (Id.) 20 Plaintiff alleges Defendant Tiscornia was “invoking an underground regulation, 21 not adopted in Title 15, that inmates can only attend law library during their yard time.” 22 (Id. at 14.) Plaintiff claims he could not go to the law library for ninety (90) days because 23 of the” temporary loss of yard privileges which occurred from May 23, 2019 to August 24 23, 2019.” (Id.) Plaintiff “received an RVR” from Tiscornia “for trying to go to law 25 library.” (Id.) Plaintiff claims that Tiscornia issued this RVR in retaliation for “Plaintiff’s 26 602 appeals and civil actions already filed against Tiscornia.” (Id.) 27 28 1 Sergeant Poladian “gave named Defendant staff officers [an] order and notice that 2 Plaintiff be allowed to access the housing unit wall phones to make his legal calls upon 3 his request.” (Id. at 16.) Plaintiff and his attorney “submitted required letterhead to 4 Litigation Dep’t Staff Connie and McGuirre” who told them they “would make the 5 arrangements for them to converse regularly.” (Id.) However, Plaintiff claims “they 6 never made the arrangements and gave Plaintiff’s attorney the run around.” (Id.) 7 Plaintiff alleges he told Sergeant Hampton about his need to have access to the 8 phones but claims Hampton told him “I don’t give a fuck, figure it out.” (Id. at 17.) 9 Hampton also purportedly told “all named staff not to let Plaintiff get on housing unit 10 phones at all for any legal calls” for the time frame that Plaintiff lost privileges. (Id.) 11 Plaintiff was denied phone access from May 23, 2019 to August 21, 2019. (See 12 id.) Plaintiff claims he asked “every day” to use the phones. (Id.) Plaintiff alleges 13 Defendants Wingo, Chalmers, Guzman, Maroki, Erikson, Jackson, Louie, Guevara, 14 Rodriguez, and Lewis all denied him the use of the phones when requested by Plaintiff. 15 (See id.) 16 Plaintiff had a conversation with Lieutenant Gonzalez on June 19, 2019 regarding 17 Gonzalez purportedly holding a disciplinary hearing without Plaintiff being present at the 18 hearing. (See id. at 21.) Plaintiff claims Gonzalez “made a threat” to Plaintiff that if he 19 “files a lawsuit or grievance” he will move an inmate into Plaintiff’s cell to cause him to 20 by “physically or sexually assaulted.” (Id.) 21 On July 10, 2019, Plaintiff claims he spoke with Grijalva about his “legal call 22 access.” (Id. at 22.) Plaintiff alleges that Grijalva told him “you don’t get no calls or 23 have any.” (Id.) He further claims that Grijalva “told [Plaintiff] he was harassing her, 24 and he better stop, or she would falsify an RVR” against him. (Id.) 25 26 27 28 2 Sergeant Poladian is not a named Defendant. 1 Plaintiff appeared before the ICC committee on July 11, 2019. (See id. at 23.) The 2 committee was comprised of Defendants Taylor-Garcia, Jackson, and Covello. (See id.) 3 Plaintiff claims he was “entitled” to be transferred to one of two prisons “of his choice.” 4 (Id.) Plaintiff chose the California Rehabilitation Center (“CRC”) “to be close to his 5 family” and was “deprived of opportunity to choose a second prison” after requesting 6 California Institution for Men (“CIM”) as his “second choice.” (Id.) Plaintiff claims 7 Covello, “in retaliation,” told Plaintiff that he was going to be sent to Valley State Prison 8 (“VSP”). (Id.) However, Plaintiff claims he is “restricted” from being transferred to 9 VSP because it would “cause him severe medical sickness being susceptible to Valley 10 Fever sickness.” (Id.) 11 Plaintiff acknowledges that he was not transferred to VSP and instead claims he 12 was ultimately transferred to CMC where “he is currently suffering many constitutional, 13 civil rights violations.” (Id. at 24.) Plaintiff also claims that he was “sexually assaulted 14 by an officer at CMC and was illegally placed in administrative segregation.” (Id.) 15 Plaintiff $100,000 in compensatory damages “per Defendant,” $500,000 in 16 punitive damages, and an “injunction preventing Plaintiff from being transferred to a 17 prison not of his choice.” (Id. at 26.) 18 D. Waived Defendants 19 In the Court’s May 5, 2020 Order, Plaintiff was cautioned that any “[d]efendants 20 not named and any claims not re-alleged” in his FAC would be deemed waived. (May 5, 21 2020 Order at 17 citing S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner 22 & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes 23 the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that 24 claims dismissed with leave to amend which are not re-alleged in an amended pleading 25 may be “considered waived if not repled.”).) 26 In Plaintiff’s FAC, he no longer names John Doe, Associate Warden, C/O 27 Litigation Dep’t, All A-Yard Bldg 5; 2nd and 3rd Watch, and Staff from 5/23/14 as 28 1 Defendants. Thus, those Defendants are DISMISSED from this action because Plaintiff 2 did not rename these Defendants and for the reasons set forth in the Court’s May 5, 2020 3 Order. 4 E. Retaliation claims against Schmell, Silva, and Lewis 5 Plaintiff alleges Schmell “authored” an RVR in retaliation against Plaintiff and this 6 was “orchestrated” by Defendants Silva and Lewis. (FAC at 7.) Plaintiff alleges Silva 7 told him the RVR would not have been issued if Plaintiff “had kept [Silva] and Lewis’ 8 names out of [Plaintiff’s] appeals and wasn’t having everyone served with lawsuits.” (Id. 9 at 8.) Plaintiff claims he filed several grievances against Defendants Silva and Lewis, 10 along with five pending lawsuits. (See id.) Plaintiff claims that Schmell’s motivations 11 for issuing an RVR against Plaintiff “stem from Plaintiff denying [Schmell’s] sexual 12 advances towards him.” (Id.) Plaintiff claims these purported “advances” were made to 13 develop a “personal relationship” with him because Schmell “found out” Plaintiff was 14 “illegally incarcerated” and was going to gain a “large substantial amount of funds.” (Id.) 15 Allegations of retaliation against a prisoner’s First Amendment rights to speech or 16 to petition the government may support a 1983 claim. Rizzo v. Dawson, 778 F.2d 527, 17 532 (9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); 18 Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). 19 A retaliation claim has five elements. Brodheim v. Cry, 584 F.3d 1262, 1269 (9th 20 Cir. 2009). First, Plaintiff must allege that the retaliated-against conduct is protected. 21 Watison, 668 F.3d at 1114.3 Second, Plaintiff must allege Defendants took adverse action 22 against him.4 Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005). Third, Plaintiff 23 24 25 3 The filing of an inmate grievance is protected conduct. Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005). 26 27 4 The adverse action need not be an independent constitutional violation. Pratt, 65 F.3d at 806. “[T]he mere threat of harm can be an adverse action....” Brodheim, 584 F.3d at 1270. 28 1 must allege a causal connection between the adverse action and the protected conduct. 2 Watison, 668 F.3d at 1114. Fourth, Plaintiff must allege the “official’s acts would chill or 3 silence a person of ordinary firmness from future First Amendment activities.” Rhodes, 4 408 F.3d at 568 (internal quotation marks and emphasis omitted).6 Fifth, Plaintiff must 5 allege “that the prison authorities’ retaliatory action did not advance legitimate goals of 6 the correctional institution....” Rizzo, 778 F.2d at 532; Watison, 668 F.3d at 1114-15. 7 As an initial matter, the Court finds that Plaintiff’s claims of retaliation as to 8 Schmell fail to state a claim and rise to the level of frivolousness. Plaintiff maintains that 9 Schmell’s motivation for retaliating against him was purportedly due to her attempt to 10 engage in a personal relationship with him based on his claims that he would be receiving 11 a large monetary settlement. (See FAC at 8.) Plaintiff claims that he denied Schmell’s 12 “sexual advances towards him.” (Id.) However, Plaintiff does not allege that he ever 13 filed a grievance regarding Schmell’s alleged actions or ever, at a minimum, verbally 14 threatened to take action against Schmell. See Entler v. Gregoire, 872 F.3d 1031, 1039- 15 40 (9th Cir. 2017) (Holding that both “verbal … [and] written … threats to sue fall within 16 the purview of the constitutionally protected right to file grievances.”) As set forth 17 above, the first element of a retaliation claim requires Plaintiff to allege that the 18 retaliated-against conduct is protected conduct. Watison, 668 F.3d at 1114. Plaintiff 19 allegedly rejecting Schmell’s advances, without taking any active steps to engage in 20 protected conduct by filing a grievance or notifying her of an intention to take any action 21 against her, does not rise to the level of “protected conduct.” (Id.) 22 23 24 5 Because direct evidence of retaliatory intent rarely can be pleaded in a complaint, allegation of a chronology of events from which retaliation can be inferred is sufficient to survive dismissal. Watison, 25 668 F.3d at 1114 (citing Pratt, 65 F.3d at 808 (“[T]iming can properly be considered as circumstantial evidence of retaliatory intent.”)). 26 27 6 “[A] plaintiff who fails to allege a chilling effect may still state a claim if he alleges he suffered some other harm,” Brodheim, 584 F.3d at 1269, that is “more than minimal,” Robinson, 408 F.3d at 568 n.11. 28 1 The Court finds Plaintiff’s claims of retaliation on the part of Schmell are patently 2 frivolous. A pleading is “factual[ly] frivolous[]” if “the facts alleged rise to the level of 3 the irrational or the wholly incredible, whether or not there are judicially noticeable facts 4 available to contradict them.” Denton v. Hernandez, 504 U.S. 25, 25-26 (1992). 5 “[A] complaint, containing as it does both factual allegations and legal 6 conclusions, is frivolous where it lacks an arguable basis either in law or in fact. . .. [The] 7 term ‘frivolous,’ when applied to a complaint, embraces not only the inarguable legal 8 conclusion, but also the fanciful factual allegation.” Neitzke v. Williams, 490 U.S. 319, 9 325 (1989). When determining whether a complaint is frivolous, the court need not 10 accept the allegations as true, but must “pierce the veil of the complaint’s factual 11 allegations,” Id. at 327, to determine whether they are “‘fanciful,’ ‘fantastic,’ [or] 12 ‘delusional,’” Denton, 504 U.S. at 33 (quoting Neitzke, 490 U.S. at 328). 13 Here, the Court finds that Plaintiff’s claims of retaliation against Schmell “rise to 14 the level of the irrational or the wholly incredible,” Denton, 504 U.S. at 33, and as such, 15 these claims require dismissal as frivolous and without leave to amend. See Lopez v. 16 Smith 203 F.3d 1122, 1127 n.8 (9th Cir. 2000) (en banc) (noting that if a claim is 17 classified as frivolous, “there is by definition no merit to the underlying action and so no 18 reason to grant leave to amend.”). 19 Therefore, Plaintiff’s retaliation claims against Schmell are DISMISSED for 20 failing to state a claim, as frivolous, and without leave to amend. 21 In addition, while the Court finds that, at this stage of the proceedings, Plaintiff has 22 stated a retaliation claim against Defendant Silva, he has failed to state a retaliation claim 23 against Lewis. Plaintiff alleges that the RVR was “orchestrated” by Lewis, he offers no 24 other specific factual allegations as to how Lewis was actually involved in the decision to 25 issue the RVR. (See FAC at 7.) “Because vicarious liability is inapplicable to ... § 1983 26 suits, [Plaintiff] must plead that each government-official defendant, through the 27 official’s own individual actions, has violated the Constitution.” Iqbal, 556 at 676; see 28 1 also Jones v. Community Redevelopment Agency of City of Los Angeles, 733 F.2d 646, 2 649 (9th Cir. 1984) (even pro se plaintiff must “allege with at least some degree of 3 particularity overt acts which defendants engaged in” in order to state a claim). “A 4 plaintiff must allege facts, not simply conclusions, t[o] show that [each defendant] was 5 personally involved in the deprivation of his civil rights.” Barren v. Harrington, 152 F.3d 6 1193, 1194 (9th Cir. 1998); see also Estate of Brooks ex rel. Brooks v. United States, 197 7 F.3d 1245, 1248 (9th Cir. 1999) (“Causation is, of course, a required element of a § 1983 8 claim.”). Plaintiff alleges no such facts against Defendant Lewis. Thus, Plaintiff’s 9 retaliation claims against Defendant Lewis are DISMISSED for failing to state a claim. 10 F. Fourteenth Amendment claims against Schmell, Silva, Lewis, Gonzalez 11 Plaintiff alleges that his Fourteenth Amendment due process rights were violated 12 during his disciplinary hearing. (See FAC at 9-10.) Specifically, Plaintiff alleges that he 13 was not present at this hearing which “deprived him of his opportunity to call witnesses 14 and present documentary evidence at [the] hearing.” (Id.) Plaintiff claims that he was 15 found guilty based on “falsified documentation” and reliance on statements made in the 16 “falsified” RVR report authored by Schmell and Silva. (Id.) Plaintiff was “denied yard 17 time” for ninety (90) days. (Id. at 11.) 18 However, Plaintiff also acknowledges that after he filed a grievance, the RVR was 19 “reissued/reheard” due to a finding that there was a high amount of “due process 20 violations” in Plaintiff’s first disciplinary hearing. (Id at 11.) Following the second 21 disciplinary hearing, Plaintiff was found “not guilty.” (Id.) 22 The Fourteenth Amendment provides that “[n]o state shall ... deprive any person of 23 life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. “The 24 requirements of procedural due process apply only to the deprivation of interests 25 encompassed by the Fourteenth Amendment’s protection of liberty and property.” Bd. of 26 Regents v. Roth, 408 U.S. 564, 569 (1972). “To state a procedural due process claim, [a 27 plaintiff] must allege ‘(1) a liberty or property interest protected by the Constitution; (2) a 28 1 deprivation of the interest by the government; [and] (3) lack of process.’” Wright v. 2 Riveland, 219 F.3d 905, 913 (9th Cir. 2000) (quoting Portman v. Cnty. of Santa Clara, 3 995 F.2d 898, 904 (9th Cir. 1993)). 4 A prisoner is entitled to certain due process protections when he is charged with a 5 disciplinary violation. Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003) (citing 6 Wolff v. McDonnell, 418 U.S. 539, 564-571 (1974)). “Such protections include the rights 7 to call witnesses, to present documentary evidence and to have a written statement by the 8 fact-finder as to the evidence relied upon and the reasons for the disciplinary action 9 taken.” Id. 10 Even if Plaintiff is able to demonstrate that he was deprived of due process by 11 Defendants purported failure to provide Wolff protections during his first disciplinary 12 hearing, Plaintiff’s own allegations demonstrate that the RVR was re-issued and reheard 13 which resulted in a reversal of the previous guilty finding. See FAC at 11. Therefore, 14 Plaintiff’s claims of due process violations arising from his first disciplinary hearing are 15 moot in light of the grant of a new hearing which resulted in a not guilty verdict. See 16 Brown v. Marshall, 2012 WL 12906131, *9 (E.D. Cal. Mar. 1, 2012) (“[P]laintiff’s 17 procedural due process claims related to either his first or second disciplinary 18 proceedings have been rendered moot by the subsequent re-issuing and re-hearing of the 19 rules violation charge against him.”);Shotwell v. Brandt, 2012 WL 6569402, at *3 (N.D. 20 Cal. Dec. 17, 2012) (citing Raditch v. United States, 929 F.2d 478, 481 (9th Cir. 1991) 21 for the finding that “the remedy for an unfair hearing is another hearing” and finding that 22 “due process was satisfied when the results of the first disciplinary hearing were vacated, 23 [and] the RVR was ordered reissued and reheard.”). 24 Plaintiff does not allege that he suffered any loss of credits or that his sentence was 25 extended as a result of the first disciplinary hearing. See Randolph v. Sandoval, 2019 WL 26 2410469, *7 (E.D. Cal. June 7, 2019) (Finding no due process violation where 27 “disciplinary proceedings were rendered moot by the subsequent not guilty finding” and 28 1 the plaintiff did not lose credits, serve “additional time in segregation,” or maintain a 2 “disciplinary record for the alleged offenses after the RVRs were overturned.”); see also, 3 Horne v. Coughlin, 155 F.3d 26, 31, n. 3 (2nd Cir. 1998) (finding the plaintiff’s due 4 process claims with regard to his first hearing were rendered null after the findings and 5 penalties were vacated and a new hearing ordered, and plaintiff suffered no loss of good 6 time credits); Morissette v. Peters, 45 F.3d 1119, 1122 (7th Cir. 1995) (finding no injury 7 after a due process violation in the plaintiff’s first disciplinary hearing was subsequently 8 corrected in the administrative appeals process and plaintiff’s sentence was adjusted so 9 that he served no additional time in segregation.) 10 Thus, Plaintiff’s Fourteenth Amendment due process claims arising from his 11 disciplinary hearings are DISMISSED for failing to state a claim upon which relief could 12 be granted. 13 G. Access to Courts claims 14 Plaintiff alleges that Defendant violated his access to the courts when he was 15 denied access to the prison’s law library from May 23, 2019 to August 21, 2019. (See 16 FAC at 13.) Specifically, Plaintiff alleges that he suffered an “actual injury” when he 17 was prevented from litigating several civil rights cases “because Plaintiff couldn’t access 18 library to prepare them to be filed.” (Id.) In support of his claims that he suffered an 19 “actual injury,” Plaintiff lists several cases. (Id.) 20 Prisoners have a constitutional right of access to the courts. Lewis v. Casey, 518 21 U.S. 343, 346 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977), limited in part on other 22 grounds by Lewis, 518 U.S. at 354. Because states must ensure indigent prisoners 23 meaningful access to the courts, Bounds held that prison officials were required to 24 provide either: (1) adequate law libraries, or (2) adequate assistance from persons trained 25 in the law. Bounds, 430 U.S. at 828. Bounds was interpreted to establish “core 26 requirements,” and a prisoner alleging deprivation of those core requirements was not 27 required to also allege actual injury in order to a state constitutional claim. See e.g., Sands 28 1 v. Lewis, 886 F.2d 1166, 1171 (9th Cir. 1989). 2 However, Lewis abolished that approach in 1996; and ever since, in order to state a 3 claim of a denial of the right to access the courts, a prisoner must establish that he has 4 suffered “actual injury,” a jurisdictional requirement derived from the standing doctrine. 5 Lewis, 518 U.S. at 349. An “actual injury” is “actual prejudice with respect to 6 contemplated or existing litigation, such as the inability to meet a filing deadline or to 7 present a claim.” Id. at 348 (citation and internal quotations omitted). The right of access 8 does not require the State to “enable the prisoner to discover grievances,” or even to 9 “litigate effectively once in court.” Id. at 354; see also Jones v. Blanas, 393 F.3d 918, 936 10 (9th Cir. 2004) (defining actual injury as the “inability to file a complaint or defend 11 against a charge”). Instead, Lewis holds: 12 [T]he injury requirement is not satisfied by just any type of frustrated legal claim ... Bounds does not guarantee inmates the wherewithal to transform 13 themselves into litigating engines capable of filing everything from 14 shareholder derivative actions to slip-and-fall claims. The tools it requires to be provided are those that the inmates need in order to attack their sentences, 15 directly or collaterally, and in order to challenge the conditions of their 16 confinement. Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and 17 incarceration. 18 19 Id. at 346; see also Spence v. Beard, No. 2:16-CV-1828 KJN P, 2017 WL 896293, at *2-3 20 (E.D. Cal. Mar. 6, 2017). Indeed, the failure to allege an actual injury is “fatal.” Alvarez v. 21 Hill, 518 F.3d 1152, 1155 n.1 (9th Cir. 2008) (“Failure to show that a ‘non-frivolous legal 22 claim had been frustrated’ is fatal.”) (quoting Lewis, 518 U.S. at 353 & n.4). 23 In addition to alleging an “actual injury,” Plaintiff must also plead facts sufficient to 24 describe the “non-frivolous” or “arguable” nature of underlying claim he contends was lost 25 as result of Defendants’ actions. Christopher v. Harbury, 536 U.S. 403, 413-14 (2002). 26 The nature and description of the underlying claim must be set forth in the pleading “as if 27 it were being independently pursued.” Id. at 417. 28 1 A court may take judicial notice of its own records, see Molus v. Swan, Civil Case 2 No. 3:05-cv-00452-MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing 3 United States v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v. 4 Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “‘may take 5 notice of proceedings in other courts, both within and without the federal judicial system, 6 if those proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508 7 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 8 n.2 (9th Cir. 2002)); see also United States ex rel. Robinson Rancheria Citizens Council 9 v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). 10 Therefore, this Court takes judicial notice of its own records and other court’s 11 public records available on PACER.7 First, Plaintiff identifies the following civil rights 12 cases in which he alleges he suffered an “actual injury” due to the Defendants’ actions 13 alleged in this matter: (1) Williams v. Villescaz, et al., E.D. Cal. Civil Case No. 2:15-cv- 14 01230-CKD; (2) Williams v. Sharp, et al., E.D. Cal. Civil Case No. 2:15-cv-02542-GEB- 15 KJN; (3) Williams v. DeGeorge, E.D. Cal. Civil Case No. 2:16-cv-00025-TLN-CKD; 16 and (4) Williams v. Garcia, et al., C.D. Cal. Civil Case No. 2:16-cv-06744-PA-KK. (See 17 FAC at 13.) 18 Each one of these cases were filed, and judgment was entered against Plaintiff, 19 years before Plaintiff purportedly was denied access to the law library in 2019. In 20 addition, while Plaintiff filed appeals in some of these actions to the Ninth Circuit, those 21 appeals affirmed the rulings by the district courts at least a year before the claims giving 22 rise to this action were alleged to have happened. 23 Plaintiff also claims that he was unable to file a timely appeal in Williams v. 24 Kenner, et al., S.D. Cal. Civil Case No. 3:18-cv-01006-AJB-JMA (“Kenner”) due to 25 26 27 7 See www.pacer.gov (website last visited June 25, 2020.) 28 1 “lack of access to the prison law library” from May 23, 2019 to August 21, 2019. (FAC at 2 13.) A review of the Court’s docket in this matter indicates that Plaintiff was denied the 3 right to proceed IFP pursuant to 28 U.S.C. § 1915(g) and judgment was entered on 4 September 14, 2018. (See Kenner, ECF No. 12.) Plaintiff filed his appeal on March 26, 5 2019, two months before he claims he was denied access to the prison’s law library. (See 6 id., ECF No. 13.) 7 Plaintiff also alleges that correctional officers denied his access to the phones for 8 ninety days, as a result of the loss of privileges following his first disciplinary hearing, 9 which purportedly resulted in his inability to communicate with his lawyer. (See FAC at 10 14-16.) Plaintiff claims that he suffered an “actual injury” because his “habeas corpus for 11 his criminal appeal No. LA075334” was “deemed untimely.” (Id. at 14.) Plaintiff also 12 claims that he suffered a second “actual injury” when his “habeas corpus for [his] RVR 13 appeal [Williams v. Kernan, E.D. Cal. Civil Case No. 2:18-cv-02841 JAM DB 14 (“Kernan”)]” was also “deemed untimely.” (Id.) 15 As stated above, Plaintiff was denied phone access from May 23, 2019 to August 16 21, 2019. (See FAC at 17.) In Kernan, Respondent filed a motion to dismiss on 17 December 6, 2019 to which Plaintiff filed a timely opposition on December 27, 2019. 18 (See Kernan, ECF Nos. 18, 19.) The filing of this motion was several months after 19 Plaintiff’s phone privileges were restored and Plaintiff was not prevented from filing an 20 opposition. 21 As for Plaintiff’s attempts to file petitions for writ of habeas corpus relating to his 22 criminal conviction in Los Angeles Superior Court, Plaintiff has filed a least thirteen such 23 petitions in the California Court of Appeal, Second District.8 Plaintiff began filing these 24 petitions in 2014 and has filed one as recently as June, 22, 2020. Plaintiff’s claims that 25 26 27 28 8 See https://appellatecases.courtinfo.ca.gov/search.cfm?dist=2 (website last visited June 24, 2020.) 1 his lack of access to the phones for a three-month period in 2019 denied him access to the 2 courts is simply not plausible. 3 The Court DISMISSES Plaintiff’s access to courts claims are DISMISSED as 4 frivolous and for failing to state a claim upon which relief may be granted. 5 H. Housing 6 Plaintiff alleges appeared before the ICC committee on July 11, 2019. (See FAC at 7 23.) The committee was comprised of Defendants Taylor-Garcia, Jackson, and Covello. 8 (See id.) Plaintiff claims he was “entitled” to be transferred to one of two prisons “of his 9 choice.” (Id.) Plaintiff chose the California Rehabilitation Center (“CRC”) “to be close 10 to his family” and was “deprived of opportunity to choose a second prison” after 11 requesting California Institution for Men (“CIM”) as his “second choice.” (Id.) Plaintiff 12 claims Covello told Plaintiff that he was going to be sent to Valley State Prison (“VSP”). 13 (See id.) However, Plaintiff claims he is “restricted” from being transferred to VSP 14 because it would “cause him severe medical sickness being susceptible to Valley Fever 15 sickness.” (Id.) 16 Plaintiff was not transferred to VSP but instead was ultimately transferred to CMC 17 where “he is currently suffering many constitutional, civil rights violations.”9 (Id. at 24.) 18 Plaintiff does not have a constitutional right to be housed in the institution of his choice. 19 See Olim v. Wakinekona, 461 U.S. 238, 249 (1983); McKune v. Lile, 536 U.S. 24, 39 20 (2002) (“It is well settled that the decision where to house inmates is at the core of 21 prisoner administrators’ expertise.”). 22 I. Remaining claims 23 As to Plaintiff’s remaining retaliation allegations against Defendants Silva, 24 25 26 9 Plaintiff has recently filed civil rights actions alleging that his constitutional rights have been violated 27 while housed at CMC and are not part of this action. See Williams v. Sabo, et al., C.D. Cal Civil Case No. 2:20-cv-01373-PA-KK; Williams v. R. Farley, et al., C.D. Cal. Civil Case No. 2:20-cv-04490-PA- 28 KK. 1 Tiscornia, Gonzalez, Hampton, and Grijalva, however, the Court finds his FAC contains 2 plausible claims sufficient to survive the “low threshold” set for sua sponte screening as 3 required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b). See Wilhelm, 680 F.3d at 1123; 4 Iqbal, 556 U.S. at 678; Rhodes, 408 F.3d at 567-68 (“Within the prison context, a viable 5 claim of First Amendment retaliation entails five basic elements: (1) An assertion that a 6 state actor took some adverse action against an inmate (2) because of (3) that prisoner’s 7 protected conduct, and that such action (4) chilled the inmate’s exercise of his First 8 Amendment rights, and (5) the action did not reasonably advance a legitimate 9 correctional goal.”). 10 Therefore, the Court will order the U.S. Marshal to effect service upon all the 11 Defendants Silva, Tiscornia, Gonzalez, Hampton, and Grijalva on Plaintiff’s behalf. See 12 28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all process, and 13 perform all duties in [IFP] cases.”); FED. R. CIV. P. 4(c)(3) (“[T]he court may order that 14 service be made by a United States marshal or deputy marshal ... if the plaintiff is 15 authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”).10 16 III. Conclusion and Order 17 For the reasons explained, the Court: 18 1. DISMISSES all claims against all Defendants with the exception of 19 Plaintiff’s First Amendment retaliation claims against Defendants Silva, Tiscornia, 20 Gonzalez, Hampton, and Grijalva and DIRECTS the Clerk to terminate all parties, with 21 the exception of Silva, Tiscornia, Gonzalez, Hampton, and Grijalva, to this matter based 22 on the failure to state a claim against them and as frivolous pursuant to 28 U.S.C. 23 § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b). 24 2. DIRECTS the Clerk of Court to issue a summons as to Plaintiff’s FAC 25 26 27 10 Plaintiff is cautioned that “the sua sponte screening and dismissal procedure is cumulative of, and not a substitute for, any subsequent Rule 12(b)(6) motion that [a defendant] may choose to bring.” Teahan v. 28 Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007). 1 (ECF No. 15) upon Defendants Silva, Tiscornia, Gonzalez, Hampton, and Grijalva, and 2 forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each of them. In 3 addition, the Clerk will provide Plaintiff with a certified copy the May 5, 2020 Order 4 granting IFP status, certified copies of his FAC (ECF No. 15), and the summons so that 5 he may serve Defendants Silva, Tiscornia, Gonzalez, Hampton, and Grijalva. Upon 6 receipt of this “IFP Package,” Plaintiff must complete the USM Form 285 as completely 7 and accurately as possible, include an address where each Defendant may be found 8 and/or subject to service pursuant to S.D. Cal. CivLR 4.1c., and return them to the United 9 States Marshal according to the instructions the Clerk provides in the letter 10 accompanying his IFP package. 11 3. ORDERS the U.S. Marshal to serve a copy of the FAC (ECF No. 15), and 12 summons upon the Defendants Silva, Tiscornia, Gonzalez, Hampton, and Grijalva as 13 directed by Plaintiff on the USM Form 285s provided to him. All costs of that service 14 will be advanced by the United States. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). 15 3. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 16 serve upon Defendants Silva, Tiscornia, Gonzalez, Hampton, and Grijalva, or if 17 appearance has been entered by counsel, upon Defendants’ counsel, a copy of every 18 further pleading, motion, or other document submitted for the Court’s consideration 19 pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every original document he 20 seeks to file with the Clerk of the Court, a certificate stating the manner in which a true 21 and correct copy of that document has been was served on Defendants or their counsel, 22 and the date of that service. See S.D. Cal. CivLR 5.2. Any document received by the 23 Court which has not been properly filed with the Clerk or which fails to include a 24 / / / / / 25 / / / / / 26 / / / / / 27 / / / / / 28 1 || Certificate of Service upon the Defendants, or their counsel, may be disregarded. 2 IT IS SO ORDERED. 3 ||Dated: June 26, 2020 € ZL 4 Hon. Cathy Ann Bencivengo 5 United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22