1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JORGE ANDRADE RICO, Case No. 23-cv-02122-PCP

8 Plaintiff,

ORDER OF DISMISSAL IN PART AND

9 v. SERVICE IN PART

10 SECRETARY OF CDCR, et al., Re: Dkt. No. 16 Defendants. 11

12 13 Jorge Rico, an inmate at Pelican Bay State Prison, filed this pro se civil rights action under 14 42 U.S.C. § 1983. The Court dismissed Mr. Rico’s original complaint with leave to amend. See 15 Dkt. No. 13. Mr. Rico thereafter filed an amended complaint. Upon review of the amended 16 complaint under 28 U.S.C. § 1915A, the Court concludes that Mr. Rico has stated a cognizable 17 claim for retaliation against defendants Gonzales and Vaugh and orders service of the amended 18 complaint on those defendants. All other claims and defendants are dismissed without leave to 19 amend. 20 I. Background 21 As defendants, Mr. Rico names the Secretary of the California Department of Corrections 22 and Rehabilitation (“CDCR Secretary”) in his official capacity; the warden of Pelican Bay State 23 Prison (“PBSP Warden”) in his official capacity; mailroom officer Gonzales in her individual 24 capacity; and mailroom officer Vaugh in her individual capacity. See Am. Compl. at 2–3. 25 At all relevant times, Mr. Rico was incarcerated at PBSP. Beginning in 2016, Mr. Rico 26 filed civil rights lawsuits against PBSP employees. See id. at 3. 27 In October and November of 2020, Mr. Rico’s incoming and outgoing legal mail was 1 On December 10, 2020, a reply brief was filed by defendants in Mr. Rico’s Northern 2 District action. Mr. Rico contends that this reply brief was mailed to him and was lost by the 3 mailroom on or around December 14, 2020. Mr. Rico contends that because he did not receive this 4 reply brief, he was prevented from responding to the reply brief. See id. Mr. Rico does not state 5 what response he would have made to the reply brief, see id., and the Northern District does not 6 permit litigants to respond to reply briefs, see Civ. L.R. 7-3(d) (allowing sur-replies only to object 7 to new evidence introduced in the reply brief, or to bring new legal authority to the court’s 8 attention). 9 Mr. Rico filed administrative grievances regarding these mailroom issues. See Am. Compl. 10 at 3. Two mailroom officers, defendants Gonzales and Vaugh, interviewed Mr. Rico about his 11 grievances. Mr. Rico contends that these defendants refused to properly investigate his mail- 12 related grievances and asked him not to file grievances against them. See id. at 4–5. 13 After this interview, on May 7, 2021, mail arrived at PBSP from Mr. Rico’s attorney. See 14 id. at 5. Mr. Rico contends that this mail informed him of an appealable ruling in a case he had 15 pending before the Ninth Circuit. The mail was lost somewhere in the mailroom, and Mr. Rico did 16 not learn of the Ninth Circuit ruling until mid-August 2021. See id. at 6 (stating that he learned of 17 the Ninth Circuit ruling sometime between August 16 and 18, 2021). Mr. Rico contends that 18 because of this delay, he lost the ability to appeal the Ninth Circuit ruling to the U.S. Supreme 19 Court. See id. at 6–7. A review of the Ninth Circuit docket reveals that two orders were issued 20 around the time Mr. Rico complains of: an order denying a petition for rehearing en banc on April 21 28, 2021, and a mandate issued on May 6, 2021. See Dkt. Nos. 54, 55, Rico v. Ducart, Appeal No. 22 19-15541 (9th Cir. Apr. 28 and May 6, 2021, respectively). 23 From March 16, 2020 to July 19, 2021, the deadline for filing a petition of writ of 24 certiorari in the U.S. Supreme Court was extended from 90 days to 150 days. This extension 25 applied to any appealable ruling issued within that period. See U.S. Supreme Court, Rules and 26 Guidance: Guidance Concerning Clerk’s Office Operations, https://www.supremecourt.gov/ 27 announcements/COVID-19_Guidance_July_2021.pdf (last visited April 4, 2025). Mr. Rico 1 II. Legal Standard 2 Federal courts must screen any case in which a prisoner seeks redress from a governmental 3 entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The court must 4 identify cognizable claims and dismiss claims that are frivolous, malicious, fail to state a claim 5 upon which relief may be granted, or seek monetary relief from a defendant immune from such 6 relief. 28 U.S.C. § 1915A(b)(1), (2). Pro se pleadings must be liberally construed. See Balistreri v. 7 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 8 III. Analysis 9 A. Defendants Gonzales and Vaugh 10 Mr. Rico has stated a cognizable retaliation claim against defendants Gonzales and Vaugh, 11 but his mail delay and access-to-the-courts claims fail. 12 1. Mail delay claim 13 Prisoners enjoy a First Amendment right to send and receive mail. See Witherow v. Paff, 14 52 F.3d 264, 265 (9th Cir. 1995). Prison officials have a responsibility to forward mail to inmates 15 promptly. See Bryan v. Werner, 516 F.2d 233, 238 (3d Cir. 1975). A temporary delay or isolated 16 incident of delay, however, does not violate a prisoner’s First Amendment rights. See Crofton v. 17 Roe, 170 F.3d 957, 961 (9th Cir. 1999) (policy of diverting publications through property room 18 reasonably related to prison’s interest in inspecting mail for contraband). 19 Mr. Rico complains that he experienced mail delays in October and November of 2020, 20 each of which lasted less than a week. See Am. Compl. at 3. Such brief, temporary delays do not 21 state a First Amendment claim. See Crofton, 170 F.3d at 961. 22 2. Retaliation claim 23 Retaliation is actionable because retaliatory actions may tend to chill individuals’ exercise 24 of constitutional rights. See Perry v. Sindermann, 408 U.S. 593, 597 (1972). “Within the prison 25 context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion 26 that a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s 27 protected conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment 1 Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005) (footnote omitted). The prisoner must show that 2 the type of activity he was engaged in was constitutionally protected, that the protected conduct 3 was a substantial or motivating factor for the alleged retaliatory action, and that the retaliatory 4 action advanced no legitimate penological interest. Hines v. Gomez, 108 F.3d 265, 267–68 (9th 5 Cir. 1997) (inferring retaliatory motive from circumstantial evidence). 6 Mr. Rico alleges that after he filed grievances, Defendants Gonzales and Vaugh told him 7 not to file grievances or lawsuits against them, and in 2021 several items of his legal mail 8 vanished. See Am. Compl. at 4–5. Mr. Rico also alleges that Defendants Gonzales and Vaugh 9 work in the PBSP mail room, which gives them access to his legal mail. See id. at 2–3. Mr. Rico 10 identified a constitutionally protected activity (writing grievances), an adverse action 11 (disappearing mail), and connected it to the protected activity. This is sufficient to survive 12 screening, and defendants Gonzales and Vaugh must respond to this claim. 13 3. Access-to-the-courts claim 14 The deliberate delay of legal mail which adversely affects legal proceedings presents a 15 cognizable claim for denial of access to the courts. See Jackson v. Procunier, 789 F.2d 307, 311 16 (5th Cir. 1986). To claim violation of the right of access to the courts, the prisoner must prove that 17 there was an inadequacy in the prison’s legal access program that caused him an actual injury. 18 Lewis v. Casey, 518 U.S. 343, 349–51 (1996). To prove an actual injury, the prisoner must show 19 that the inadequacy in the prison’s program hindered his efforts to pursue a non-frivolous claim 20 concerning his conviction or conditions of confinement. See id. at 351, 354–55. Here, information 21 provided in the amended complaint, and available through public records, reveals that Mr. Rico 22 was not so hindered. 23 First, Mr. Rico represents that he never received a reply filed by the defendants in a 24 Northern District of California lawsuit, although this reply was mailed to the prison. See Am. 25 Compl. at 4. The previous Northern District action appears to have concerned a due process claim. 26 See Dkt. No. 20, Rico v. Bristow, Case No. 19-cv-05892-CRB (N.D. Cal. March 9, 2021) 27 (granting defendants’ summary judgment motion and summarizing case). Mr. Rico claims that, 1 response” to that reply. Am. Compl. at 9. 2 Under the Northern District’s Civil Local Rules, a party may only respond to a reply if the 3 reply introduced new evidence, or if the party needs to bring new legal authority to the court’s 4 attention. See Civ. L.R. 7-3(d). The reply discussed by Mr. Rico does not introduce any new 5 evidence. See Dkt. No. 19, Rico v. Bristow, Case No. 19-cv-05892-CRB (N.D. Cal. filed Dec. 10, 6 2020). The order granting summary judgment in the previous Northern District action does not 7 rely on the reply at all. See Dkt. No. 20, Rico v. Bristow, Case No. 19-cv-05892-CRB (N.D. Cal. 8 filed March 9, 2021). Finally, Mr. Rico does not identify, and the Court was unable to find, any 9 legal authority helpful to Mr. Rico’s due process claim that was issued in the three-month period 10 between the filing of the reply and the granting of summary judgment. Judicially noticeable facts 11 thus show that Mr. Rico suffered no actual injury as a result of not receiving the reply. 12 Second, Mr. Rico represents that he did not receive a May 7, 2021 letter from his counsel 13 in a Ninth Circuit Court of Appeals lawsuit, which would have informed him of an appealable 14 Ninth Circuit ruling. See Am. Compl. at 5, 7. Mr. Rico does not specify which ruling avoided his 15 notice, but court records show that the Ninth Circuit denied Mr. Rico’s petition for rehearing en 16 banc on April 28, 2021, and issued its mandate on May 6, 2021. See Dkt. Nos. 54–55, Rico v. 17 Ducart, Appeal No. 19-15541 (9th Cir.). Mr. Rico contends that defendants’ failure to deliver his 18 attorney’s letter “hinder[ed] obstruct[ed] and den[ied] [him his] right to appeal that decision.” Id. 19 at 7. Mr. Rico received information regarding the ruling in a second letter, which he received no 20 later than August 18, 2021. See id. at 6. 21 The loss of his attorney’s letter did not deprive Mr. Rico of his chance to appeal the Ninth 22 Circuit’s ruling to the United States Supreme Court. From March 16, 2020 to July 19, 2021, the 23 deadline for filing a petition of writ of certiorari in the United States Supreme Court was extended 24 from 90 days to 150 days. See U.S. Supreme Court, Rules and Guidance: Guidance Concerning 25 Clerk’s Office Operations, https://www.supremecourt.gov/announcements/COVID- 26 19_Guidance_July_2021.pdf (last visited April 4, 2025). This extension applied to any appealable 27 ruling issued within that period, so it applied to both the denial of Mr. Rico’s petition for rehearing 1 September 26 or October 4, 2021, respectively, to appeal it. The amended complaint clearly states 2 that Mr. Rico learned of the ruling at issue no later than August 18, 2021, which left him more 3 than five weeks to file an appeal. See Am. Compl. at 6. Because Mr. Rico still could have 4 appealed to the U.S. Supreme Court, he suffered no actual injury from the loss of his attorney’s 5 letter.1 6 Because the facts show that Mr. Rico did not suffer an actual injury from the mailroom’s 7 failure to transmit any mail, his access-to-the-courts claim fails. 8 B. CDCR Secretary and PBSP Warden 9 The Court previously explained to Mr. Rico that he can only sue defendants who were 10 personally involved in the wrongs perpetrated against him. See Dkt. No. 13 at 5–6; see also 11 Lemire v. Cal. Dept. of Corrections & Rehabilitation, 726 F.3d 1062, 1085 (9th Cir. 2013) 12 (explaining that liability may only be imposed on an individual defendant under 42 U.S.C. § 1983 13 if the plaintiff can show that the defendant’s actions both actually and proximately caused the 14 constitutional deprivation). 15 The amended complaint makes clear that Mr. Rico sues the CDCR Secretary and the PBSP 16 Warden based on their supervisory duties, not because they were personally involved in injuring 17 him. See Am. Compl. at 2. “In a § 1983 or a Bivens action … each Government official, his or her 18 title notwithstanding, is only liable for his or her own misconduct.” Ashcroft v. Iqbal, 556 U.S. 19 662, 677 (2009). Under no circumstances is there liability under section 1983 solely because one 20 is responsible for the actions or omissions of another. See Taylor v. List, 880 F.2d 1040, 1045 (9th 21 Cir. 1989); Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 680–81 (9th Cir. 22 1984). 23 Because the amended complaint sues the CDCR Secretary and PBSP Warden merely 24 because they are supervisors, and alleges zero personal involvement by either individual, these 25 defendants must be dismissed. 26 27 1 IV. Conclusion 2 1. Liberally construed, the amended complaint states a First Amendment retaliation 3 claim against defendants Gonzales and Vaugh. All other claims and defendants are DISMISSED. 4 2. The Court orders service of the amended complaint on defendants Gonzales and 5 Vaugh and orders them to respond to Mr. Rico’s First Amendment retaliation claim. Service on 6 Gonzales and Vaugh shall proceed under the California Department of Corrections and 7 Rehabilitation’s (“CDCR”) E-Service Program for civil rights cases from prisoners in CDCR 8 custody. In accordance with the program, the Clerk is directed to serve on CDCR via email the 9 following documents: The amended complaint and exhibits thereto (Dkt. No. 16), this order of 10 service, a CDCR Report of E-Service Waiver form, and a summons. The Clerk also shall serve a 11 copy of this order on Mr. Rico. 12 3. No later than forty (40) days after service of this order via email on CDCR, CDCR 13 shall provide the Court a Completed CDCR Report of E-Service Waiver advising the Court 14 whether all defendants will be waiving service of process without the need for service by the 15 United States Marshal Service (“USMS”), or whether any defendant declined to waive service or 16 could not be reached. 17 4. CDCR shall provide a copy of the CDCR Report of E-Service Waiver to the 18 California Attorney General’s Office which, within twenty-one (21) days, shall file with the 19 Court a waiver of service of process for each defendant who is waiving service. 20 5. If any defendant does not waive service, then upon receipt of the CDCR Report of 21 E-Service Waiver, the Clerk shall prepare a USM-285 Form. The Clerk shall provide to the USMS 22 the completed USM-285 forms and copies of this order, the summons, and the operative complaint 23 for service upon the non-waiving defendant. The Clerk also shall provide to the USMS a copy of 24 the CDCR Report of E-Service Waiver. 25 6. No later than ninety (90) days from the filing date of this order, defendants shall 26 file one comprehensive motion for summary judgment or other dispositive motion with 27 respect to the Amended Complaint. Any motion for summary judgment shall be supported by 1 of Civil Procedure. A motion for summary judgment also must be accompanied by a separate 2 Rand notice so that Mr. Rico will have fair, timely and adequate notice of what is required of him 3 in order to oppose the motion. Woods v. Carey, 684 F.3d 934, 939 (9th Cir. 2012) (notice 4 requirement set out in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be served 5 concurrently with motion for summary judgment). Defendants are advised that summary judgment 6 cannot be granted, nor qualified immunity found, if material facts are in dispute. 7 7. If any defendant is of the opinion that this case cannot be resolved by summary 8 judgment, he or she shall so inform the Court prior to the date the summary judgment motion is 9 due. Information regarding the Court’s Alternative Dispute Resolution Program is available on the 10 website for the United States District Court for the Northern District of California. 11 8. Mr. Rico’s opposition to the dispositive motion shall be filed with the Court and 12 served on defendants no later than twenty-eight (28) days from the date defendants’ motion is 13 filed. Mr. Rico is advised to read Rule 56 of the Federal Rules of Civil Procedure and Celotex 14 Corp. v. Catrett, 477 U.S. 317 (1986) (party opposing summary judgment must come forward 15 with evidence showing triable issues of material fact on every essential element of his claim). 16 9. Defendants shall file a reply brief no later than fourteen (14) days after Mr. Rico’s 17 opposition is filed. 18 10. All communications by Mr. Rico with the Court must be served on defendants or 19 defendants’ counsel once counsel has been designated, by mailing a true copy of the document to 20 defendants or defendants’ counsel. 21 11. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. 22 No further court order under Federal Rule of Civil Procedure 30(a)(2) is required before the 23 parties may conduct discovery. Mr. Rico is advised to read Federal Rule of Civil Procedure 37, 24 which requires each party to “in good faith confer[] or attempt[] to confer with” the opposing party 25 regarding a discovery dispute, before seeking court action to resolve such a dispute. 26 12. It is Mr. Rico’s responsibility to prosecute this case. Mr. Rico must keep the Court 27 informed of any change of address by filing a separate paper with the Clerk headed “Notice of ] do so will result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of 2 || Civil Procedure 41(b). 3 The Clerk shall update the caption to reflect that only defendants Gonzales and Vaugh 4 || remain in this action. 5 6 IT IS SO ORDERED. 7 || Dated: April 15, 2025 Ma 9 P. Casey Pitt 10 United States District Judge 1] as 12

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