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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 TIANTE DION SCOTT, 1:18-cv-00023-LJO-GSA-PC

12 Plaintiff, FINDINGS AND RECOMMENDATIONS, 13 v. RECOMMENDING THAT THIS CASE

BE DISMISSED, WITH PREJUDICE,

14 SGT. J. ARVIZO, et al., FOR FAILURE TO STATE A CLAIM (ECF No. 23.) 15 Defendants. 16 OBJECTIONS, IF ANY, DUE WITHIN

FOURTEEN DAYS

17 18 19 20 I. BACKGROUND 21 Tiante Dion Scott (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 22 with this civil rights action pursuant to 42 U.S.C. § 1983. On January 4, 2018, Plaintiff filed the 23 Complaint commencing this action, together with a motion for leave to file a Complaint 24 exceeding 25 pages in length. (ECF Nos. 1, 2.) On March 27, 2018, the court denied Plaintiff’s 25 motion to exceed 25 pages and granted Plaintiff leave to file an amended complaint not exceeding 26 25 pages. (ECF No. 13.) On April 30, 2018, Plaintiff filed the First Amended Complaint, 27 together with a motion to incorporate separately filed exhibits that Plaintiff had not attached to 28 the First Amended Complaint, to avoid exceeding the 25-page limit for the complaint. (ECF 1 Nos. 14, 15.) On May 7, 2018, the court denied Plaintiff’s motion to incorporate exhibits and 2 granted him leave to file a Second Amended Complaint with his exhibits attached. (ECF No. 3 16.) On May 29, 2018, Plaintiff filed the Second Amended Complaint. (ECF No. 17.) 4 On December 17, 2018, the court screened the Second Amended Complaint and 5 dismissed it for failure to state a claim, with leave to amend. (ECF No. 18.) On March 21, 2019, 6 Plaintiff filed the Third Amended Complain, which is now before the court for screening. 28 7 U.S.C. § 1915A. (ECF No. 23.) 8 II. SCREENING REQUIREMENT 9 The Court is required to screen complaints brought by prisoners seeking relief against a 10 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 11 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 12 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 13 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 14 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 15 dismiss the case at any time if the court determines that the action or appeal fails to state a claim 16 upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 17 A complaint is required to contain “a short and plain statement of the claim showing that 18 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 19 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 20 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 21 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken 22 as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, 23 Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). To state 24 a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim 25 to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 26 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal 27 conclusions are not. Id. The mere possibility of misconduct falls short of meeting this 28 plausibility standard. Id. 1 III. SUMMARY OF THIRD AMENDED COMPLAINT 2 Plaintiff is currently incarcerated at California State Prison-Sacramento in Represa, 3 California. The events at issue in the Third Amended Complaint allegedly occurred at North 4 Kern State Prison in Delano, California, when Plaintiff was incarcerated there. Plaintiff names 5 as defendants Sergeant J. Arvizo, Chief Deputy Warden J. Sutton, J. Knight (Appeals Examiner), 6 M. Voong (Chief Appeals Examiner), C/O L. Baeza, C/O D. Ceballos, C/O L. Lira, C/O R. 7 Morrell, M. Harder (Appeals Examiner) and John Does #1 and #2 (C/Os) (collectively, 8 “Defendants”). 9 A summary of Plaintiff’s allegations follows:1 10 On January 27, 2016, C/O I. Lozano performed a random cell search of cell #109 in 11 Facility Building #1, inhabited by Plaintiff and inmate Beloney. This cell search resulted in 12 marijuana and manufactured alcohol (pruno) being found in the cell. C/O Lozano did not follow 13 procedures to inform the two inmates that marijuana had been discovered with the pruno. Both 14 inmates were issued Rules Violation Reports (RVRs). This caused several fights between the 15 two inmates. 16 Normally when contraband is found in a cell the two inmates are notified and asked if 17 either of them wants to own up to the violation. Plaintiff and his cell mate Beloney were not 18 notified until 77 days later, violating California regulations which permit a maximum of 45 days 19 to issue an RVR, and 15 days to inform the inmate of misconduct. On February 12, 2016, 20 Plaintiff and Beloney were both found guilty of possession of manufactured alcohol causing a 21 chain reaction of fights between the two inmates. 22 On February 27, 2016, sometime after 6:30 p.m., Plaintiff was engaged by Beloney while 23 exiting the chow hall, and a fight started. While Plaintiff was fighting Beloney, someone -- 24 believed to be one of Beloney’s friends -- stabbed Plaintiff from behind in the neck. Yard officers 25 ordered the two inmates to stop fighting and get on the ground, which they did. Plaintiff and 26 27 1 Plaintiff includes some allegations in the Third Amended Complaint about his medical care for his injuries. However, this summary of the Third Amended Complaint does not recite Plaintiff’s allegations about 28 medical care at length because Plaintiff indicates that his related medical claims are being addressed in his other pending case, 17-cv-01146-LJO-GSA-PC; Scott v. Beregovskay. 1 Beloney were released back to their living quarters. Apparently, Plaintiff’s stab wound was not 2 visible to the yard officers as it had not started bleeding yet. When Plaintiff got to the cell he 3 noticed blood, and then profuse bleeding. 4 On February 28, 2016, Plaintiff reported to his job assignment. He had very serious 5 injuries and had difficulties with his assignments. Plaintiff told his co-worker, Miller, that he 6 had been stabbed the night before and could not raise his right arm. Plaintiff was asking Miller 7 to pick up the slack for him as Plaintiff could not raise his arm to do any heavy lifting. Miller 8 was asked by Plaintiff’s Investigative Employee (I.E.) if he knew that Plaintiff was injured. 9 At the end of the work day, at about 15:24-15:26 hours, Plaintiff was released from his 10 work assignment that lasted from 7:00 to 15:00 hours. On his way to his cell in Building #1, 11 Plaintiff was ambushed by inmate Beloney in front of Building #1, and another fight started. 12 Beloney pinned Plaintiff on the ground. Once off the ground, Plaintiff could not see any C/Os 13 coming to break up the fight. Plaintiff ran away from Beloney, but Beloney followed and the 14 fight continued. Defendant Sgt. Arvizo finally came and ordered the two inmates to get on the 15 ground. Sgt. Arvizo threw a smoke grenade in the inmates’ direction. The fight stopped and the 16 inmates got down on the ground. 17 Both inmates were taken to holding cages to be screened by a nurse and C/Os. Plaintiff 18 requested to see a doctor and his request was denied. Sgt. Arvizo gave the inmates a No 19 Enemy/Safety Informational Chrono, which both inmates signed. The inmates returned to their 20 assigned cells and Plaintiff thought the situation was resolved, especially since Beloney had 21 signed the Chrono. 22 Since this was the second fight between the two inmates, Plaintiff and his property were 23 moved to Building #4; both inmates were previously in Building #1. Once in his new cell, 24 Plaintiff noticed that some of his property was missing. The costlier items were his TV, CD 25 player, Hot Pot, Nike high top shoes, two pairs of new shorts, two tank tops, three new long- 26 sleeved t-shirts, head phones, a fan, ten CD’s, one new baseball cap, and food. Someone went 27 into Plaintiff’s cell while he was at work and stole the property. The only way this was possible 28 was if John Does #1 and #2 (Building #1 tower officers) let someone into Plaintiff’s cell. Plaintiff 1 believes this was retaliation for Plaintiff’s two fights which caused officers to work harder and 2 go home later. 3 On February 29, 2016, Plaintiff went out on the yard to find out who stole his property 4 and to ask one of inmate Beloney’s friends to tell Beloney to end the conflict, which Plaintiff 5 thought was over. Plaintiff was informed that one of Beloney’s friends would talk to Beloney, 6 but did not think Beloney would let it go. Beloney returned early from his small engines class 7 and attacked Plaintiff as soon as he saw him. Plaintiff did not see a weapon, but a weapon was 8 later recovered. Again, it took the C/O awhile to get there. After the fight, Plaintiff and inmate 9 Beloney were placed in holding cages again to be interviewed by the nurse and C/O’s for the 10 second time, and the two inmates signed another No Enemy Chrono. Plaintiff again asked for a 11 doctor but his request was denied. 12 In the holding cage, Plaintiff attempted to stop the conflict. Beloney antagonized Plaintiff 13 and said, “I heard your cell got robbed.” Third ACP, ECF No. 23 at 11 ¶ 10.2 In Plaintiff’s 14 opinion, Beloney probably had something to do with the missing items stolen while Plaintiff was 15 at work, and the culprit who opened Plaintiff’s cell would have been the Tower Officers, Does 16 #1 and #2. 17 On March 1, 2016, Plaintiff sought assistance from a different group of Beloney’s 18 associates in an effort to have someone talk to Beloney. These individuals said there was nothing 19 they could do to change Beloney’s mind. They offered to provide a knife to Plaintiff to stab 20 Beloney, but Plaintiff declined. 21 In prison, a person who refuses to fight is considered weak and targeted for violence, 22 robbery, and removal from the prison yard. Plaintiff was in that category, and his age and medical 23 condition did not save him from the violence to come. 24 Before Beloney could return from his small engines class, two individuals jumped 25 Plaintiff causing him to be taken by ambulance to the Central Health Facility. Plaintiff was 26

27 2 All page numbers cited herein are those assigned by the court’s CM/ECF system and not based 28 on the Plaintiff’s pagination of the Third Amended Complaint. 1 injured on his left cheek and needed seven stitches. The fight happened because the C/Os would 2 not separate Plaintiff and Beloney after three fights. This is the supervisors’ responsibility, 3 namely Sgt. Arvizo and Captain C. Arce [not a defendant]. Under CDCR rules, anyone who is 4 jumped by more than one inmate has to be relocated to another yard. Inmates know this so when 5 they want a person relocated they get the person jumped, which is formally called a “removal” 6 on the prison yard. ECF No. 23 at 13 ¶ 11. Plaintiff should not have had to endure prison justice 7 because the officers deviated from policy. 8 On March 1, 2016, Plaintiff was separated from Beloney and placed in administrative 9 segregation (Ad-Seg) for safety concerns and further investigation. Before Plaintiff was sent to 10 Ad-Seg, defendant Sgt. Avizo tried to trick him into signing a document that would have placed 11 him on the Sensitive Needs Yard (SNY). In Plaintiff’s opinion, Sgt. Arvizo was trying to cover 12 up wrongdoing because Arvizo had not followed procedure and was trying to defame Plaintiff’s 13 dignity, character, and reputation. (See Exh. E1.)3 Plaintiff formed this opinion because officers 14 allowed Plaintiff’s property to be stolen, the reaction time to the fights were extremely long, and 15 the inmates were not separated after they breached the first Chrono. Also, a proper investigation 16 was not conducted, especially since a weapon was discovered. The weapon was somehow 17 removed from the evidentiary hearing. This behavior is similar to the old ways when officers 18 staged and watched Gladiator Fights. C/Os have informants on the yard, and an investigation 19 would have shown that Plaintiff was being victimized when his cell was robbed. Also, a C/O 20 had to open the cell. The correctional officers did nothing when they were notified that Plaintiff’s 21 property was missing, leaving Plaintiff to believe that the C/Os encouraged the theft. 22 On March 4, 2016, Plaintiff was issued an RVR for fighting on February 29, 2016. On 23 March 11, 2016, Plaintiff was issued an RVR for fighting on February 28, 2016. Plaintiff was 24 appointed an investigative employee to assist him and ask questions of the involved C/Os. On 25 March 12, 2016, Plaintiff was issued an RVR for fighting on March 1, 2016. On March 23, 2016, 26 and March 31, 2016, Plaintiff had hearings and was found not guilty of two of the fights. Plaintiff 27 28 3 Here, Plaintiff refers the court to Exhibit E1. (3ACP, ECF No. 23 at 13:16.) However, no exhibits were attached to the Third Amended Complaint. 1 believes Sgt. Arvizo was trying to intimidate Plaintiff for requesting an I.E. and for seeking 2 redress of grievances. Sgt. Arvizo should have known he was attempting to punish a victim for 3 being attacked, and the RVR 115 should have been dismissed. Plaintiff alleges that Sgt. Arvizo 4 had a duty under CCR title 15 § 3286 to protect inmates and should have known that Plaintiff 5 had to be separated from the yard after four days of fighting incidents. Sgt. Arvizo tried to cause 6 Plaintiff to agree to be placed on the SNY instead of in Ad-Seg, but Plaintiff told him he would 7 be in danger if he remained on the yard. Plaintiff would have been seen as a snitch if he agreed 8 to be placed on the SNY. Sgt. Arvizo should have known there was no reason to place Plaintiff 9 on the SNY. After issuing the RVR, Sgt. Arvizo retaliated and attempted to silence Plaintiff’s 10 effort to address grievances and defend himself from the charges. Plaintiff was only trying to 11 defend himself and was severely injured. But at the RVR hearing, Sgt. Arvizo refused to answer 12 the important questions presented to him and lied on other occasions. Sgt. Arizo’s report was 13 missing the descriptive requirement of CCR tit. 15 § 3286, to identify the victim and aggressor. 14 Defendant C/O Ceballos lied on his report and lied on the record when asked questions 15 at the RVR hearing. Ceballos answered six questions with the same answer, “I don’t know which 16 inmate Scott was.” ECF No. 23 at 21:1-2. This was retaliation because Plaintiff was exercising 17 his First Amendment right to seek redress of grievances. 18 Defendants C/O Baeza, C/O Lira, and C/O Morrell also lied on their incident reports and 19 lied to the investigative employee. These officers conspired with Sgt. Arvizo to chill Plaintiff’s 20 First Amendment activities and failed to do their duty under 15 CCR § 3271 to secure the safety 21 of all inmates. 22 Defendant Warden Sutton violated his duty by allowing his subordinates to function in 23 an improper fashion not designed to further the goals of the CDCR. A supervisor is not 24 responsible for actions of his employees, yet it is a supervisor’s duty to enforce a company’s 25 common goal. Warden Sutton had a legal responsibility to correct his employees for not correctly 26 reporting the fight that Plaintiff had with inmate Beloney, and for attempting to engage in the 27 “Code of Silence” when they deliberately refused to answer questions or lie in an investigation. 28 Once Warden Sutton was informed of his employees’ conduct and chose not to correct their 1 actions, he became guilty of indifference to Plaintiff’s First Amendment right to redress 2 grievances that later attached Fourteenth Amendment violations. 3 Third level appeals coordinators Voong, Harder and Knight failed to perform their duties. 4 Plaintiff provided the third level of appeals with medical documents pertaining to his severe 5 condition. The coordinator rejected the grievance with instruction to remove the medical 6 documents. Plaintiff complied and sent the grievance back, and the coordinator failed to enforce 7 CCR Tit. 15 ¶¶ 3286 and 3271. The appeals coordinators are also guilty of chilling and silencing 8 Plaintiff from seeking redress when they made Plaintiff remove evidence that would prove that 9 Plaintiff could not willfully fight, and ignoring the acts complained of by the correctional officers, 10 including the Warden. 11 Plaintiff requests monetary damages, declaratory relief, preliminary and permanent 12 injunctive relief, and costs of suit. 13 IV. PLAINTIFF’S CLAIMS 14 The Civil Rights Act under which this action was filed provides:

15 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to 16 be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities 17 secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 18 19 42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely 20 provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 21 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also 22 Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 23 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); 24 Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 25 To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted 26 under color of state law and (2) the defendant deprived him of rights secured by the Constitution 27 or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also 28 Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of 1 state law”). A person deprives another of a constitutional right, “within the meaning of § 1983, 2 ‘if he does an affirmative act, participates in another’s affirmative act, or omits to perform an act 3 which he is legally required to do that causes the deprivation of which complaint is made.’” 4 Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting 5 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be 6 established when an official sets in motion a ‘series of acts by others which the actor knows or 7 reasonably should know would cause others to inflict’ constitutional harms.” Preschooler II, 479 8 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of causation “closely resembles 9 the standard ‘foreseeability’ formulation of proximate cause.” Arnold v. Int’l Bus. Mach. Corp., 10 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010, 11 1026 (9th Cir. 2008). 12 A. Supervisory Liability – Warden 13 Plaintiff names defendants who hold supervisory positions, such as Warden Sutton. 14 Supervisory personnel may not be held liable under section 1983 for the actions of subordinate 15 employees based on respondeat superior, or vicarious liability. Crowley v. Bannister, 734 F.3d 16 967, 977 (9th Cir. 2013); accord Lemire v. California Dep’t of Corr. And Rehab., 726 F.3d 1062, 17 1074-75 (9th Cir. 2013); Lacey v. Maricopa County, 693 F.3d 896, 915- 16 (9th Cir. 2012) (en 18 banc). Rather, “[a] supervisor may be liable only if (1) he or she is personally involved in the 19 constitutional deprivation, or (2) there is a sufficient causal connection between the supervisor’s 20 wrongful conduct and the constitutional violation.” Crowley, 734 F.3d at 977 (citing Snow v. 21 McDaniel, 681 F.3d 978, 989 (9th Cir. 2012) (internal quotation marks omitted); accord Lemire, 22 726 F.3d at 1074-75; Lacey, 693 F.3d at 915-16. 23 Plaintiff alleges that Warden Sutton violated his rights because Sutton allowed his 24 employees to function in an improper fashion not designed to further the goals of the CDCR. 25 According to Plaintiff, the Warden failed to correct his employees for not correctly reporting the 26 fight between Plaintiff and inmate Beloney, and for participating in the “Code of Silence.” 27 However, Plaintiff alleges no facts showing that the Warden knew his employees were acting 28 illegally or violating Plaintiff’s rights. There are no factual allegations demonstrating personal 1 conduct by the Warden which violated Plaintiff’s constitutional rights. Therefore Plaintiff fails 2 to state any claims against Warden Sutton, and also fails to state a claim against any of the 3 Defendants based on supervisory liability. 4 B. Due Process -- Fourteenth Amendment 5 The Due Process Clause protects against the deprivation of liberty and property without 6 due process of law. Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 2393 (2005). In 7 order to invoke the protection of the Due Process Clause, a plaintiff must first establish the 8 existence of a liberty or property interest for which the protection is sought. Id. Protected 9 interests may arise from the Due Process Clause itself or from state law. Id. 10 1. Administrative Segregation (Ad-Seg) 11 The Due Process Clause itself does not confer on inmates a liberty interest in being 12 confined in the general prison population instead of administrative segregation. See Hewitt v. 13 Helms, 459 U.S. 460, 466-68 (1983); see also May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997) 14 (convicted inmate’s due process claim fails because he has no liberty interest in freedom from 15 state action taken within sentence imposed and administrative segregation falls within the terms 16 of confinement ordinarily contemplated by a sentence) (quotations omitted); Resnick v. Hayes, 17 213 F.3d 443, 447 (9th Cir. 2000) (plaintiff’s placement and retention in the SHU was within 18 range of confinement normally expected by inmates in relation to ordinary incidents of prison 19 life and, therefore, plaintiff had no protected liberty interest in being free from confinement in 20 the SHU) (quotations omitted). 21 Under state law, the existence of a liberty interest created by prison regulations is 22 determined by focusing on the nature of the deprivation. Sandin v. Conner, 515 U.S. 472, 481- 23 84, 115 S.Ct. 2293 (1995). Liberty interests created by state law are “generally limited to 24 freedom from restraint which . . . imposes atypical and significant hardship on the inmate in 25 relation to the ordinary incidents of prison life.” Id. at 484; Myron v. Terhune, 476 F.3d 716, 26 718 (9th Cir. 2007). 27 Plaintiff alleges that he was placed in Ad-Seg as a safety measure to protect him from 28 other inmates who were fighting with him, and that he suffered there in pain for eight days. To 1 the extent that Plaintiff’s term in Ad-Seg was the result of a disciplinary action, Plaintiff has not 2 shown that his placement in Ad-Seg was outside the range of confinement normally expected in 3 relation of ordinary incidents of prison life. Plaintiff has not alleged that he was confined in Ad- 4 Seg for an unusually long time or under conditions that imposed significant hardships. Plaintiff 5 claims while in Ad-Seg for eight days his neck injury worsened, his wound became infected, he 6 had night chills and sweats with nightmares, he lost 35-40 pounds, and he became depressed. It 7 appears that Plaintiff’s suffering was the result of his injuries and infection, but not the result of 8 his confinement in Ad-Seg. Rather, his suffering was caused by the worsening of his medical 9 condition.4 Therefore, Plaintiff has no liberty interest in this case in remaining free from 10 confinement in Ad-Seg 11 2. Personal Property 12 Prisoners have a protected interest in their personal property. Hansen v. May, 502 F.2d 13 728, 730 (9th Cir. 1974). However, a plaintiff has no due process claim based on the defendants’ 14 unauthorized deprivation of his personal property—whether intentional or negligent—if a 15 meaningful state post-deprivation remedy for his loss is available. See Hudson v. Palmer, 468 16 U.S. 517, 533 (1984). California’s tort claim process provides that adequate post-deprivation 17 remedy. Barnett v. Centoni, 31 F.3d 813, 816–17 (9th Cir. 1994) (citing Cal. Gov’t Code §§ 810– 18 895) (“[A] negligent or intentional deprivation of a prisoner’s property fails to state a claim under 19 section 1983 if the state has an adequate post deprivation remedy”); see also Teahan v. Wilhelm, 20 481 F. Supp. 2d 1115, 1120 (S.D. Cal. 2007); Kemp v. Skolnik, No. 2:09-CV-02002-PMP, 2012 21 WL 366946, at *6 (D. Nev. Feb. 3, 2012) (finding prisoner’s alleged loss or destruction of 22 newspaper, magazines, and books failed to state a Fourteenth Amendment claim pursuant to 23 Hudson and noting that “[i]f Plaintiff wishes to recoup the value of the alleged lost materials, he 24 will have to file a claim in small claims court in state court”). Due Process is therefore satisfied 25 if there is a meaningful post-deprivation remedy available to him. Hudson, 468 U.S. at 533. 26

27 4 In the Third Amended Complaint, Plaintiff indicates that he does not intend to bring an Eighth 28 Amendment medical claim in this case. Plaintiff states that he is pursuing his medical claims related to this case in a separate § 1983 case pending at this court, case number 1:17-cv-01146-LJO-GSA-PC, Scott v. Beregovskay. 1 Here, Plaintiff alleges that the deprivation of his property was intentional and 2 unauthorized, and that defendants John Doe #1 and #2 participated in the theft of his property 3 when they opened Plaintiff’ cell door. Therefore, Plaintiff fails to state a due process claim if he 4 has a post-deprivation remedy. As discussed above, Plaintiff has an adequate remedy under state 5 law. Accordingly, Plaintiff fails to state a cognizable due process claim for the alleged 6 deprivation of his personal property during the search of his cell. 7 3. False Reports 8 Plaintiff alleges that defendants C/O Baeza, C/O Ceballos, C/O Lira, C/O Morrell, and 9 Sgt. Arvizo lied in their incident reports, lied to the investigative employee, and/or lied at 10 Plaintiff’s disciplinary hearing. 11 There is no due process right to be free from false disciplinary charges or reports. The 12 falsification of a disciplinary report does not state a standalone constitutional claim. Canovas v. 13 California Dept. of Corrections, 2:14–cv–2004 KJN P, 2014 WL 5699750, n.2 (E.D. Cal. 2014); 14 see e.g., Lee v. Whitten, 2:12–cv–2104 GEB KJN P, 2012 WL 4468420, *4 (E.D. Cal. 2012). 15 There is no constitutionally guaranteed immunity from being falsely or wrongly accused of 16 conduct which may result in the deprivation of a protected liberty interest. Sprouse v. Babcock, 17 870 F.2d 450, 452 (8th Cir. 1989); Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986)). “The 18 Constitution demands due process, not error-free decision-making.” Jones v. Woodward, 2015 19 WL 1014257, *2 (E.D. Cal. 2015) (citing Ricker v. Leapley, 25 F.3d 1406, 1410 (8th Cir. 1994); 20 McCrae v. Hankins, 720 F.2d 863, 868 (5th Cir. 1983)). Therefore, Plaintiff has no protected 21 interest against false incident reports or false testimony during disciplinary proceedings. Due 22 process does not entitle Plaintiff to the full panoply of rights due a defendant in a criminal 23 prosecution.5 24 25 5 “Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974). With 26 respect to prison disciplinary proceedings, the minimum procedural requirements that must be met are: (1) written notice of the charges; (2) at least 24 hours between the time the prisoner receives written notice and the time of the 27 hearing, so that the prisoner may prepare his defense; (3) a written statement by the fact finders of the evidence they rely on and reasons for taking disciplinary action; (4) the right of the prisoner to call witnesses in his defense, when 28 permitting him to do so would not be unduly hazardous to institutional safety or correctional goals; and (5) legal assistance to the prisoner where the prisoner is illiterate or the issues presented are legally complex. Id. at 563–71. 1 Thus, Plaintiff fails to state a claim based on his right to be free of false incident reports 2 or false testimony during his disciplinary proceeding. 3 4. Prison Appeals 4 Plaintiff’s allegations against defendants Knight, Voong, and Harder pertain to their 5 review and handling of Plaintiff’s inmate appeals. The Due Process Clause protects prisoners 6 from being deprived of liberty without due process of law. Wolff v. McDonnell, 418 U.S. 539, 7 556 (1974). However,“[i]nmates lack a separate constitutional entitlement to a specific prison 8 grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no liberty interest 9 in processing of appeals because no entitlement to a specific grievance procedure), citing Mann 10 v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). “[A prison] grievance procedure is a procedural 11 right only, it does not confer any substantive right upon the inmates.” Azeez v. DeRobertis, 568 12 F. Supp. 8, 10 (N.D. Ill. 1982) accord Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993); see 13 also Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (existence of grievance procedure 14 confers no liberty interest on prisoner). “Hence, it does not give rise to a protected liberty interest 15 requiring the procedural protections envisioned by the Fourteenth Amendment.” Azeez, 568 F. 16 Supp. at 10; Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986). 17 Actions in reviewing a prisoner’s administrative appeal generally cannot serve as the 18 basis for liability in a section 1983 action. Buckley, 997 F.2d at 495. The argument that anyone 19 who knows about a violation of the Constitution, and fails to cure it, has violated the Constitution 20 himself is not correct. “Only persons who cause or participate in the violations are responsible. 21 Ruling against a prisoner on an administrative complaint does not cause or contribute to the 22 violation.” Greeno v. Daley, 414 F.3d 645, 656-57 (7th Cir. 2005) accord George v. Smith, 507 23 F.3d 605, 609-10 (7th Cir. 2007); Reed v. McBride, 178 F.3d 849, 851-52 (7th Cir. 1999); Vance 24 v. Peters, 97 F.3d 987, 992-93 (7th Cir. 1996).; Haney v. Htay, No. 1:16-CV-00310-AWI-SKO- 25 PC, 2017 WL 698318, at *4–5 (E.D. Cal. Feb. 21, 2017). 26 27 In addition, “[s]ome evidence” must support the decision of the hearing officer. Superintendent v. Hill, 472 U.S. 445, 455 (1985). The standard is not particularly stringent and the relevant inquiry is whether “there is any evidence 28 in the record that could support the conclusion reached . . . .” Id. at 455–56. 1 Thus, Plaintiff’s allegations that defendants Knight, Voong, and Harder failed to properly 2 process Plaintiff’s appeals fail to state a cognizable claim. 3 C. Failure to Protect -- Eighth Amendment 4 The Eighth Amendment protects prisoners from inhumane conditions of confinement. 5 Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Although prison conditions may be 6 restrictive and harsh, prison officials must provide prisoners with food, clothing, shelter, 7 sanitation, medical care, and personal safety. Farmer v. Brennan, 511 U.S. 825, 832-33 (1994) 8 (internal citations and quotations omitted). Prison officials have a duty to take reasonable steps 9 to protect inmates from physical abuse, Id. at 833; Hearns v. Terhune, 413 F.3d 1036, 1040 (9th 10 Cir. 2005), and the failure of prison officials to protect inmates from attacks by other inmates 11 may rise to the level of an Eighth Amendment violation where prison officials know of and 12 disregard a substantial risk of serious harm to the plaintiff, e.g., Farmer, 511 U.S. at 847; Hearns, 13 413 F.3d at 1040. 14 Plaintiff alleges that defendant Arvizo should have known that Plaintiff should have been 15 separated from Beloney after three fights, that anyone jumped by more than one inmate has to be 16 relocated to another yard, and that Plaintiff would be in danger if he were placed on the Sensitive 17 Needs Yard. 18 Plaintiff fails to state a claim against defendant Arvizo for failure to protect him because 19 Plaintiff has not stated facts showing that defendant Arvizo knew that Plaintiff was at substantial 20 risk of harm, and yet deliberately ignored the risk and acted unreasonably. Plaintiff has not 21 shown that defendant Arvizo possessed the requisite state of mind to violate Plaintiff’s rights 22 under the Eighth Amendment. 23 Plaintiff suggests that Sgt. Arvizo failed to protect him from harm by attempting to get 24 him to agree to be placed on the Sensitive Needs Yard. Specifically, Sgt. Arvizo encouraged 25 Plaintiff to sign paperwork agreeing to be placed in the SNY yard instead of Ad-Seg. Plaintiff 26 states that he would have been in danger in the SNY because he would be treated as a snitch, and 27 therefore did not sign the paperwork. However, Plaintiff alleges no facts showing that Sgt. 28 /// 1 Arvizo intended to place him in harm’s way or understood that Plaintiff would be at substantial 2 risk of serious harm if placed in the SNY yard. 3 Therefore, Plaintiff fails to state a cognizable claim against defendant Arvizo for failing 4 to protect him under the Eighth Amendment. 5 D. Retaliation 6 Within the prison context, a viable claim of First Amendment retaliation entails five basic 7 elements: (1) An assertion that a state actor took some adverse action against an inmate (2) 8 because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 9 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 10 correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005). 11 The second element of a prisoner retaliation claim focuses on causation and motive. See 12 Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009). A plaintiff must show that his protected 13 conduct was a “‘substantial’ or ‘motivating’ factor behind the defendant’s conduct.” Id. (quoting 14 Sorrano’s Gasco. Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). Although it can be 15 difficult to establish the motive or intent of the defendant, a plaintiff may rely on circumstantial 16 evidence. Bruce v. Ylst, 351 F.3d 1283, 1288–89 (9th Cir. 2003) (finding that a prisoner 17 establishes a triable issue of fact regarding prison officials’ retaliatory motives by raising issues 18 of suspect timing, evidence, and statements); Hines v. Gomez, 108 F.3d 265, 267–68 (9th Cir. 19 1997); Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995) (“timing can properly be considered 20 as circumstantial evidence of retaliatory intent”). 21 The third prong can be satisfied by various activities. Filing a grievance is a protected 22 action under the First Amendment. Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 23 1989). Pursuing civil rights litigation similarly is protected under the First Amendment. Rizzo v. 24 Dawson, 778 F.2d 527, 532 (9th Cir. 1985). 25 With respect to the fourth prong, “[it] would be unjust to allow a defendant to escape 26 liability for a First Amendment violation merely because an unusually determined plaintiff 27 persists in his protected activity. . . .” Mendocino Envtl. Ctr. v. Mendocino Cnty., 192 F.3d 1283, 28 1300 (9th Cir. 1999). The correct inquiry is to determine whether an official’s acts would chill 1 or silence a person of ordinary firmness from future First Amendment activities. Rhodes, 408 2 F.3d at 568–69 (citing Mendocino Envtl. Ctr., 192 F.3d at 1300). 3 With respect to the fifth prong, a prisoner must affirmatively show that “the prison 4 authorities’ retaliatory action did not advance legitimate goals of the correctional institution or 5 was not tailored narrowly enough to achieve such goals.” Rizzo, 778 F.2d at 532. 6 Plaintiff states his belief that officers took property out of his cell because Plaintiff fought 7 with other inmates. (ECF No. 23 at 10.) Here, Plaintiff fails to state a retaliation claim against 8 the officers because Plaintiff was not exercising protected First Amendment rights when he 9 fought with other inmates. 10 Plaintiff also alleges that (1) defendant Arvizo tried to intimidate Plaintiff for requesting 11 an Investigative Employee, “seeking redress of grievances,” and attempted to silence Plaintiff’s 12 efforts to “address grievances and defend himself from charges” (ECF No. 23 at 15:12-15, 19:25- 13 28); (2) defendants Ceballos, Baeza, Lira, and Morrell lied on their incident reports or to the 14 investigative employee in a conspiracy to “chill Plaintiff’s First Amendment activities” (ECF 15 No. 23 at 20-23 ¶¶ 15-16); (3) Warden Sutton was guilty of “indifference to Plaintiff’s First 16 Amendment right to redress grievances” when he knew of his employees’ conduct and chose not 17 to correct their actions (ECF No. 23 ¶ 17.); and (4) the appeals coordinators silenced Plaintiff 18 from “seeking redress” when they made Plaintiff remove evidence that would prove that Plaintiff 19 could not willfully fight, in addition to ignoring the acts complained of by the correctional 20 officers, including the Warden” (ECF No. 23 at 25:14-18). These allegations are largely 21 conclusory and fail to state a cognizable retaliation claim because there are no facts showing that 22 the Defendants acted against Plaintiff because he filed grievances, or because of other protected 23 First Amendment activities. 24 Therefore, Plaintiff fails to state a claim for retaliation. 25 E. State Law Claims 26 Plaintiff alleges defamation against him and violations of CDCR procedures and 27 California regulations. These are state law claims. Plaintiff is informed that violation of state 28 regulations, rules and policies of the CDCR, or other state law is not sufficient to state a claim 1 for relief under § 1983. Section 1983 does not provide a cause of action for violations of state 2 law. See Galen v. Cnty. of Los Angeles, 477 F.3d 652, 662 (9th Cir. 2007). To state a claim 3 under § 1983, there must be a deprivation of federal constitutional or statutory rights. See Paul 4 v. Davis, 424 U.S. 693 (1976); also see Buckley v. City of Redding, 66 F.3d 188, 190 (9th Cir. 5 1995); Gonzaga University v. Doe, 536 U.S. 273, 279 (2002). Although the court may exercise 6 supplemental jurisdiction over state law claims, Plaintiff must first have a cognizable claim for 7 relief under federal law. See 28 U.S.C. § 1367. In this instance, the court fails to find any 8 cognizable federal claims in the Third Amended Complaint. Therefore, Plaintiff’s state law 9 claims fail. 10 F. Injunctive Relief 11 As part of the relief in this case, Plaintiff requests preliminary and permanent injunctive 12 relief. Plaintiff seeks an order compelling all named Defendants in section III of the complaint 13 to accurately record inmates’ fights, to act with dignity when being asked questions by inmates, 14 to correct known illegal acts of their subordinates, and to comply with all constitutional 15 provisions guaranteed to inmates. (ECF No. 23 at 25:21-25.) 16 “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter 17 v. Natural Resources Defense Council, Inc., 555 U.S. 7, 24, 129 S.Ct. 365, 376 (2008) (citation 18 omitted). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed 19 on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that 20 the balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20 21 (citations omitted). An injunction may only be awarded upon a clear showing that the plaintiff 22 is entitled to relief. Id. at 22 (citation omitted). 23 Any award of equitable relief is governed by the Prison Litigation Reform Act, which 24 provides in relevant part:

25 “The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary 26 to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give 27 substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.” 18 U.S.C. § 3626(a)(1)(A). 28 1 The order sought by Plaintiff would not remedy the past violation of Plaintiff's 2 constitutional rights and therefore is not narrowly drawn to correct the alleged past violations. 3 Also, when a prisoner seeks injunctive relief concerning the prison where he is 4 incarcerated, his claims for such relief become moot when he is no longer subjected to those 5 conditions. Pride v. Correa, 719 F.3d 1130, 1138 (9th Cir. 2013) (“When an inmate challenges 6 prison conditions at a particular correctional facility, but has been transferred from the facility 7 and has no reasonable expectation of returning, his claim is moot”); Dilley v. Gunn, 64 F.3d 8 1365, 1368-69 (9th Cir. 1995) (finding prisoner’s suit for library access to be moot upon his 9 transfer to another prison). Once Plaintiff was transferred away from North Kern State Prison 10 where the alleged violations occurred, any claims for injunctive relief regarding conditions at 11 that institution became moot. 12 Based on the nature of the claims at issue in this action, which involve past conduct, 13 Plaintiff is not entitled to injunctive relief and is therefore confined to seeking money damages 14 for the violations of his federal rights. 15 V. CONCLUSION AND RECOMMENDATIONS 16 For the reasons set forth above, the court finds that Plaintiff fails to state any cognizable 17 claim against any of the Defendants in the Third Amended Complaint. Therefore, the court shall 18 recommend that this case be dismissed for failure to state a claim. 19 Under Rule 15(a) of the Federal Rules of Civil Procedure, “[t]he court should freely give 20 leave to amend when justice so requires.” Here, the court previously granted Plaintiff leave to 21 amend the complaint, with ample guidance by the court, and Plaintiff has not stated any claims 22 upon which relief may be granted under § 1983. The court is persuaded that Plaintiff is unable 23 to allege any facts, based upon the circumstances he challenges, that would state a cognizable 24 claim. “A district court may deny leave to amend when amendment would be futile.” Hartmann 25 v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013). The court finds that the deficiencies outlined 26 above are not capable of being cured by amendment, and therefore further leave to amend should 27 not be granted. 28 U.S.C. § 1915(e)(2)(B)(ii); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 28 2000). 1 Therefore, based on the foregoing, IT IS HEREBY RECOMMENDED that: 2 1. This case be DISMISSED, with prejudice, for failure to state a claim upon which 3 relief may be granted under § 1983; and 4 2. The Clerk be directed to CLOSE this case. 5 These findings and recommendations will be submitted to the United States District Judge 6 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 7 of the date of service of these findings and recommendations, Plaintiff may file written objections 8 with the court. The document should be captioned “Objections to Magistrate Judge’s Findings 9 and Recommendations.” Plaintiff is advised that failure to file objections within the specified 10 time may result in waiver of the right to appeal the district court’s order. Wilkerson v. Wheeler, 11 772 F.3d 834, 839 (9th Cir. Nov. 18, 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th 12 Cir. 1991)). 13

IT IS SO ORDERED.

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15 Dated: November 14, 2019 /s/ Gary S. Austin

UNITED STATES MAGISTRATE JUDGE

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