1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SYLVESTER BRADFORD, Case No. 17-cv-04964-HSG

8 Plaintiff, ORDER DISMISSING CERTAIN

CLAIMS; GRANTING LEAVE TO FILE

9 v. MOTION FOR RECONSIDERATION;

GRANTING LEAVE TO FILE

10 MINH VOONG, et al., AMENDED COMPLAINT 11 Defendants. Re: Dkt. Nos. 28, 34

12 13 Plaintiff has filed a pro se civil rights action pursuant to 42 U.S.C. § 1983 against prison 14 officials at San Quentin State Prison (“SQSP”) where he was previously housed. On May 2, 2018, 15 the Court screened the complaint and found that Plaintiff had stated two cognizable Eighth 16 Amendment claims and two cognizable federal due process claims. Dkt. No. 26. In the screening 17 order, the Court ordered the parties to show cause why the Court should or should not find that 18 Plaintiff’s false accusation allegation states a cognizable federal due process claim. The parties 19 have responded to the Court’s order to show cause. Dkt. Nos. 29 and 32. Plaintiff has also filed 20 pleadings alleging that the Court failed to acknowledge his federal retaliation claim, which the 21 Court construes as seeking leave to file a motion for reconsideration of the Court’s screening 22 order. Dkt. Nos. 28, 34. For the reasons that follow, the Court DISMISSES the due process claim 23 with prejudice; GRANTS leave to file a motion for reconsideration; DISMISSES the retaliation 24 claim with prejudice; and remands this action to state court. 25 PROCEDURAL BACKGROUND 26 On August 25, 2017, Defendants Beard and Voong removed this case from Monterey 27 County Superior Court. Dkt. No. 1. Plaintiff sought remand of the case, claiming that he had 1 6 at 1. Plaintiff moved to dismiss the complaint lodged at Dkt. No. 1, and file an amended 2 complaint withdrawing all federal claims There was no amended complaint attached to this 3 pleading. Dkt. No. 12. 4 On December 4, 2017, the Court denied the motion for remand because the complaint 5 clearly presented federal claims, and denied the motion to dismiss the complaint and to file an 6 amended complaint because no amended complaint had been attached to the motion. Dkt. No. 17 7 at 3–4. The denial of the motion to dismiss and the motion to file an amended complaint was 8 without prejudice to filing a renewed motion to file an amended complaint that provided a copy of 9 the proposed amended complaint. Dkt. No. 17 at 4. 10 Because no amended complaint was filed, the Court screened the complaint on May 2, 11 2018. Dkt. No. 26. The Court found that the complaint alleged four cognizable federal claims — 12 the Eighth Amendment claims set forth in the first and third causes of action and the due process 13 claims set forth in the seventh and fourteenth causes of action. Dkt. No. 26 at 3–5. The Court 14 dismissed three of the four claims with prejudice. The Court dismissed with prejudice the Eighth 15 Amendment claims that Defendant Barba’s false accusation constituted cruel and unusual 16 punishment (first and third causes of action), and the due process claim against Director Beard 17 (fourteenth cause of action). Dkt. No. 26 at 4–5. The Court ordered Defendants to show cause 18 why the remaining federal claim, Plaintiff’s false accusation allegation (seventh cause of action), 19 did not state a cognizable federal due process claim. Dkt. No. 26 at 4 and 6. The Court deferred 20 screening the state-law claims. Dkt. No. 26 at 5. 21 On May 17, 2018, Plaintiff filed a pleading alleging that the Court’s screening order had 22 failed to acknowledge his federal retaliation claim. Dkt. No. 28. 23 On May 30, 2018, Defendants filed a response to the order to show cause, Dkt. No. 29, and 24 on June 14, 2018, Plaintiff filed an opposition to Defendants’ response, Dkt. No. 32. 25 On August 22, 2018, Plaintiff filed a pleading again alleging that the Court had failed to 26 acknowledge his federal retaliation claim in its screening order. Dkt. No. 34.

27 // 1 DISCUSSION 2 I. False Accusation Allegation 3 In his seventh cause of action, Plaintiff alleges that Defendants Barba and Arnold falsely 4 accused him of possessing inmate-manufactured alcohol. Dkt. No. 1-1 at 50–51. Specifically, he 5 alleges that on August 21, 2015, while he was housed at CTF, Defendant Arnold searched his cell 6 while Defendant Barba remained outside the cell. On August 25, 2015, Defendant Barba issued a 7 rule violations report (“RVR”) in which he falsely alleged that he had personally discovered two 8 bags of pulp and a large bag of inmate-manufactured alcohol during the cell search, falsely 9 accused Plaintiff of possessing inmate-manufactured alcohol, and falsely claimed that Plaintiff 10 admitted to ownership of the alcohol. Dkt. No. 1-1 at 7–8 and 21–23. Plaintiff further alleges that 11 Defendant Arnold knew or should have known that Defendant Barba had made false statements in 12 the RVR. According to the attachments to the complaint, on August 28, 2015, Plaintiff was found 13 guilty of possession of inmate-manufactured alcohol, and assessed the following punishment: 14 forfeiture of 91 days of good time credit; 60 days on privilege Group C from August 28, 2015 to 15 November 26, 2015; one-fourth the maximum monthly canteen draw; no access to recreational or 16 entertainment activities; limited to “C” status privileges (Monday through Friday yard from 0800 17 to 0900 hours, dayroom 0900 to 1000); no family visits; no personal property packages; no 18 telephone calls except for emergency calls; and loss of pay from a paid assignment from August 19 28, 2015 to November 26, 2015. Dkt. No. 1-1 at 123. On October 26, 2015, the guilty finding 20 was vacated and dismissed. Dkt. No. 1-1 at 105–06. 21 The Ninth Circuit has not directly addressed in a published opinion whether being falsely 22 or wrongly accused of conduct violates an inmate’s federal due process rights. Other circuits, 23 however, have held that, generally speaking, allegations of a fabricated charge, without more, fail 24 to state a § 1983 claim. See, e.g., Freeman v. Rideout, 808 F.2d 949, 951, 953 (2d Cir. 1986); 25 Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989); Hanrahan v. Lane, 747 F.2d 1137, 1140– 26 41 (7th Cir. 1984). 27 Defendants argue that Plaintiff’s false accusation allegation fails to state a cognizable due 1 that implicates the Due Process Clause, citing to Smith v. Mesinger, 293 F.3d 641, 654 (3d Cir. 2 2002), and Shotwell v. Brandt, No. C 10-5232 CW PR, 2012 WL 6569402, at *2 (N.D. Cal. Dec. 3 17, 2012), and because Plaintiff was provided with the minimum procedural requirements required 4 by the Supreme Court for prison disciplinary proceedings as set forth in Wolff v. McDonnell, 418 5 U.S. 539, 556 (1974), and Superintendent v. Hill, 472 U.S. 445, 455 (1985). In the alternative, 6 Defendants argue that they are entitled to qualified immunity because it was not clearly 7 established that a false accusation could amount to a due process violation. Defendants note that 8 the Ninth Circuit and district courts in the Northern District of California have consistently held 9 that prisoners do not have a constitutional right to be free from false accusations of misconduct. 10 Defendants cite, among other cases, Garrot v. Glebe, 600 F. App’x 540, 542 (9th Cir. 2015), an 11 unpublished decision affirming the denial of a habeas petition, in which the Ninth Circuit 12 approvingly cited the out-of-circuit cases discussed above. Dkt. No. 29 at 3. 13 Plaintiff argues that he has stated a cognizable due process claim for the following reasons. 14 First, Plaintiff argues that the Due Process Clause entitles him to a fair and impartial 15 decisionmaker, citing to Morrisey v. Brewer, 408 U.S. 471 (1972), Smith v. Phillips, 455 U.S. 209 16 (1982), and Edwards v. Balisok, 520 U.S. 641 (1997), and requires the decisionmaker to base his 17 decision on reliable evidence, citing to United States v. Columbus, 881 F.2d 785 (9th Cir. 1989). 18 Dkt. No. 32 at 1–2. Plaintiff argues that he was denied these procedural protections when 19 Defendant McCall found Plaintiff guilty based on Defendant Barba’s false statements in the RVR. 20 Id. Second, Plaintiff reiterates his allegations that Defendant Voong improperly denied his 21 grievance in retaliation for Plaintiff’s filing of administrative grievances. Dkt. No. 32 at 3–4.1 22 1 Plaintiff makes additional arguments which are based on inaccurate readings of the caselaw 23 cited. First, Plaintiff argues that Defendants have violated the Eighth Amendment by being 24 deliberately indifferent to his testimony during the disciplinary hearing, citing to Estelle v. Gamble, 429 U.S. 49 (1976), and Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Dkt. No. 32 at 25 1. There is no Eighth Amendment requirement that a prison hearing officer refrain from “deliberate indifference” to testimony provided during a disciplinary hearing. Estelle holds that 26 the Eighth Amendment prohibits prison officials from being deliberately indifferent to an inmate’s serious medical needs, and Rhodes addressed whether a double-celling policy violated the Eighth 27 Amendment’s prohibition on cruel and unusual punishment. Neither case sets forth procedural 1 The Court finds that Plaintiff has failed to state a cognizable due process claim because he 2 has not been deprived of a protectable liberty interest. The Due Process Clause of the Fourteenth 3 Amendment protects individuals against governmental deprivations of “life, liberty or property,” 4 as those words have been interpreted and given meaning over the life of our republic, without due 5 process of law. Board of Regents v. Roth, 408 U.S. 564, 570-71 (1972). The procedural 6 guarantees of due process apply when a constitutionally-protected liberty or property interest is at 7 stake. See Wolff v. McDonnell, 418 U.S. 539, 557-57 (1974). In the prison context, due process 8 protections are implicated where the punishment imposed by prison officials (1) effects “atypical 9 and significant hardship on the inmate in relation to the ordinary incidents of prison life,” or (2) 10 “inevitably affect[s] the duration of [a] sentence.” See Sandin v. Conner, 515 U.S. 472, 484, 487 11 (1995). 12 Here, the false accusation did not result in the loss of a protected liberty interest. The 13 guilty finding was vacated after two months. The temporary guilty finding and the related two 14 month deprivation of certain privileges did not affect the duration of Plaintiff’s sentence and did 15 not constitute an atypical and significant hardship in relation to the ordinary incidents of prison 16 life. Cf. Sandin, 515 U.S. at 487 (disciplinary confinement does not implicate constitutional 17 liberty interests because, with insignificant exceptions, disciplinary segregation mirrors conditions 18 imposed upon inmates in administrative segregation and protective custody); Frank v. Schultz, 808 19 F.3d 762, 763-64 (9th Cir. 2015) (summary judgment properly granted to defendants on due 20 process claim where prisoner filed successful administrative appeal which led to the removal of 21 incident report from his file and prisoner ultimately did not lose good time credits); Serra v. 22 Lappin, 600 F.3d 1191, 1196 (9th Cir. 2010) (“prisoners do not have a legal entitlement to 23 payment for their work”). As a matter of law, Plaintiff’s allegations fail to state a cognizable due 24 matter of law based on the facts admitted, citing to Browder v. Dir., Dep’t of Corr. of Ill., 434 25 U.S. 257 (1978). Browder addresses the need for an evidentiary hearing in a habeas proceeding where the facts are undisputed, and is therefore inapplicable here. A habeas proceeding differs 26 markedly from a § 1983 action, and Plaintiff’s facts are not undisputed. Third, Plaintiff argues that the Court has jurisdiction to hear this case pursuant to Edwards 27 v. Balisok, 520 U.S. 641 (1997). Edwards addresses whether the Heck rule bars federal district 1 process claim. Plaintiff’s due process claim is DISMISSED with prejudice. 2 3 II. Federal Retaliation Claim 4 Plaintiff has filed pleadings arguing that the Court failed to acknowledge his federal 5 retaliation claim. Dkt. Nos. 28, 34. The Court construes the initial pleading (Dkt. No. 28) as a 6 request for leave to file a motion for reconsideration of the screening order. For the reasons set 7 forth below, the Court GRANTS Plaintiff leave to file the motion for reconsideration of the 8 screening order; GRANTS the request for reconsideration of the screening order; and DISMISSES 9 the federal retaliation claim with prejudice. 10 A. Motion for Reconsideration 11 Where the court’s ruling has not resulted in a final judgment or order, reconsideration of 12 the ruling may be sought under Rule 54(b) of the Federal Rules of Civil Procedure, which 13 provides that any order which does not terminate the action is subject to revision at any time 14 before the entry of judgment. See Fed. R. Civ. P. 54(b). “Reconsideration is appropriate if the 15 district court (1) is presented with newly discovered evidence, (2) committed clear error or the 16 initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law.” 17 School Dist. No. 11 v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). 18 In the Northern District of California, no motion for reconsideration may be brought 19 without leave of court. See Civil L.R. 7-9(a). Under Civil Local Rule 7-9, the moving party must 20 specifically show: (1) that at the time of the motion for leave, a material difference in fact or law 21 exists from that which was presented to the Court before entry of the interlocutory order for which 22 the reconsideration is sought, and that in the exercise of reasonable diligence the party applying 23 for reconsideration did not know such fact or law at the time of the interlocutory order; or (2) the 24 emergence of new material facts or a change of law occurring after the time of such order; or 25 (3) a manifest failure by the court to consider material facts which were presented to the Court 26 before such interlocutory order. See Civil L.R. 7-9(b). Unless otherwise ordered by the Court, 27 local rules do not require response to a motion for reconsideration. See Civil L.R. 7-9(c). 1 failed to acknowledge his federal retaliation claim against Defendant Voong for denying and 2 cancelling Grievance No. 15-02048. Plaintiff appears to be referring to Claim No. 15 which 3 discusses Defendant Voong’s cancellation of Grievance No. 15-02048. Dkt. No. 1-1 at 68–69. 4 Plaintiff does not directly make a claim of retaliation in this cause of action. But he does refer to 5 retaliation in his general overview of the legal claims. See Dkt. No. 1-1 at 19–20. The Court 6 therefore liberally construes Claim No. 15 as alleging a federal retaliation claim. Accordingly, the 7 Court GRANTS Plaintiff leave to file a motion for reconsideration and GRANTS the request for 8 reconsideration of the screening order in that the Court will screen Claim No. 15, which alleges 9 that Defendant Voong retaliated against Plaintiff for filing grievances by denying and cancelling 10 Grievance No. 15-02048, in violation of the First Amendment. 11 B. Screening Retaliation Claim 12 1. Standard 13 Pursuant to 28 U.S.C. § 1915A(a), this Court must conduct a preliminary screening of 14 Claim No. 15, and dismiss the claim if it is frivolous, is malicious, fails to state a claim upon 15 which relief may be granted, or seek monetary relief from a defendant who is immune from such 16 relief. See 28 U.S.C. § 1915A(b)(1), (2). Pro se pleadings must be liberally construed. See 17 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 18 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 19 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not 20 necessary; the statement need only “‘give the defendant fair notice of what the . . . claim is and the 21 grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). 22 Although a complaint “does not need detailed factual allegations [in order to state a claim], . . . a 23 plaintiff’s obligation to provide the grounds of his ‘entitle[ment] to relief’ requires more than 24 labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. . 25 . . Factual allegations must be enough to raise a right to relief above the speculative level.” Bell 26 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A complaint must 27 proffer “enough facts to state a claim for relief that is plausible on its face.” Id. at 570. 1 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that 2 the alleged violation was committed by a person acting under the color of state law. See West v. 3 Atkins, 487 U.S. 42, 48 (1988). 4 2. Analysis 5 Plaintiff alleges that Defendant Voong retaliated against him for utilizing the prison 6 grievance system by denying and cancelling Grievance No. 15-02048. Dkt. No. 1-1 at 70–71; see 7 also Dkt. No. 28 at 1–3. Specifically, he argues that Defendant Voong’s cancellation of Grievance 8 No. 15-02048 was retaliatory because the cancellation was clearly erroneous and contradicted by 9 the record. Dkt. No. 1-1 at 70–71; see also Dkt. No. 28 at 1–3. 10 “Within the prison context, a viable claim of First Amendment retaliation entails five basic 11 elements: (1) An assertion that a state actor took some adverse action against an inmate 12 (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 13 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 14 correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005) (footnote omitted). 15 Prisoners may not be retaliated against for exercising their right of access to the courts. See 16 Schroeder v. McDonald, 55 F.3d 454, 461 (9th Cir. 1995). The right of access to the courts 17 extends to established prison grievance procedures. See Bradley v. Hall, 64 F.3d 1276, 1279 (9th 18 Cir. 1995). 19 After a careful review of the complaint, the Court concludes that Plaintiff has not stated a 20 cognizable First Amendment retaliation claim. Plaintiff’s conclusion that the cancellation was 21 retaliatory is contradicted by the exhibits attached to the complaint and relies on conclusory and 22 speculative allegations. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) 23 (court need not accept as true allegations that contradict exhibits attached to the complaint). 24 According to the exhibits, in Grievance No. 15-02048, Plaintiff grieved that he had been 25 assessed a sixty-day loss of privileges for a first time-offense2 despite Section 3315(f)3 prescribing 26 2 Plaintiff was assessed the sixty-day loss of privilege for possessing inmate-manufactured 27 alcohol, which violated the version of section 3016(a) in effect at the time. Dkt. No. 1-1 at 105. 1 a thirty-day loss of privileges for a first-time offense. Dkt. No. 1-1 at 101, 103. Plaintiff 2 requested the following relief: (1) that he only be assessed a thirty-day loss of privileges; (2) $100 3 per day compensation for each day beyond the thirty-day period because he had already suffered 4 the sixty-day loss of privileges; and (3) punitive damages for excessive punishment and malicious 5 prosecution. Dkt. No. 1-1 at 101, 103. The first level of review was bypassed per Section 3084.7. 6 Dkt. No. 1-1 at 105. At the second level of review, the second level reviewer found that the 7 underlying RVR suffered from due process and procedural violations, namely that a portion of the 8 RVR was inaccurate and that the penalties assessed did not comply with Section 3315(f), 9 rendering the RVR unusable as a stand-alone document. Dkt. No. 1-1 at 105. The second level 10 reviewer declined to reissue and rehear the RVR because it would require modifying the original 11 RVR and instead issued a modification order requiring that the underlying RVR be vacated and 12 dismissed. Dkt. No. 1-1 at 105–06. Plaintiff appealed the second level decision because it failed 13 to compensate him monetarily for the days when he was subjected to loss of privileges, and 14 because it could not restore his C-status. Dkt. No. 1-1 at 102. At the third level of review, 15 Defendant Voong cancelled the grievance stating as follows:

16 Your appeal has been cancelled pursuant to the California Code of Regulations, Title 15, Section (CCR) 3084.6(c)(11). The issue under appeal has been resolved at a previous 17 level.

18 Your Rules Violation Report (RVR) was ordered reissued and reheard. If you have a new issue after the rehearing, you will need to submit a new appeal. 19 Pursuant to the CCR Title 15, Section 3084.9(g)(1), ‘A disciplinary action cannot be 20 appealed until the hearing process is completed, including any re-hearing.’ DOM 54100.20.3.1, ‘When a disciplinary action is ordered reissued and reheard, the original 21 disciplinary disposition shall be vacated and no longer have effect. Any appeal of the original disciplinary disposition shall be cancelled.’ Pursuant to CCR 3084.6(e), once an 22 appeal has been cancelled, that appeal may not be resubmitted. However, a separate appeal can be filed on the cancellation decision. The original appeal may only be 23 resubmitted if the appeal on the cancellation is granted. 24 Dkt. No. 1-1 at 100. 25 The third-level review clearly states that Defendant Voong cancelled Grievance No. 15- 26 the prohibition on possession of alcohol is now set forth in subsection b, rather than subsection a. 27 15 Cal. Code Regs. § 3016(a)-(b) (2018). 1 02048 because the original disciplinary disposition had been vacated and no longer had effect. 2 Defendant Voong was correct that the underlying RVR had been vacated. However, as Plaintiff 3 correctly points out, Defendant Voong incorrectly stated that the underlying RVR had been 4 vacated because it had been ordered reissued and reheard. Rather, the second-level reviewer had 5 ordered that the underlying RVR be vacated, and specifically precluded the possibility of reissuing 6 and rehearing the RVR. 7 Plaintiff has failed to allege adverse action by Defendant Voong. Making an incorrect 8 statement that the underlying RVR had been ordered re-issued and reheard is not an adverse 9 action. The Court finds that Plaintiff has failed to state a cognizable federal retaliation claim and 10 DISMISSES this claim. The dismissal is with prejudice because the deficiency cannot be cured 11 with additional allegations that are consistent with, and do not contradict, the allegations in the 12 original complaint and the exhibits attached thereto. See United States v. Corinthian Colleges, 13 655 F.3d 984, 995 (9th Cir. 2011) (“Leave to amend is warranted if the deficiencies can be cured 14 with additional allegations that are “consistent with the challenged pleading” and that do not 15 contradict the allegations in the original complaint.”) (citing Reddy v. Litton Indus., Inc., 912 F.2d 16 291, 296–97 (9th Cir. 1990)); see also Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en 17 banc) (district courts must afford pro se prisoner litigants an opportunity to amend to correct any 18 deficiency in their complaints, unless no amendment could save the complaint). 19 III. REMAND 20 All that remains in this action are Plaintiff’s state-law claims. See 28 U.S.C. § 1367(a). 21 The Court may decline to exercise supplemental jurisdiction if it has dismissed all claims over 22 which it has original jurisdiction. See Sanford v. MemberWorks, Inc., 625 F.3d 550, 561 (9th Cir. 23 2010) (citing 28 U.S.C. § 1367(c)(3) ). “[I]n the usual case in which all federal-law claims are 24 eliminated before trial, the balance of factors to be considered under the pendent jurisdiction 25 doctrine—judicial economy, convenience, fairness, and comity—will point toward declining to 26 exercise jurisdiction over the remaining state-law claims.” Id. (citation omitted) (original 27 brackets). The Court finds this to be “the usual case,” and accordingly declines to exercise 1 and further proceedings as that Court deems proper. 2 CONCLUSION 3 For the foregoing reasons, the Court orders as follows. 4 1. The Court DISMISSES with prejudice Plaintiff's due process claim. 5 2. The Court GRANTS Plaintiff's request for leave to file a motion for 6 reconsideration, GRANTS the request for reconsideration of the screening order in that the Court 7 has screened Claim No. 15 and finds that it fails to state a cognizable First Amendment retaliation 8 claim. The Court DISMISSES Claim No. 15 with prejudice. 9 3. The Court DECLINES to exercise supplemental jurisdiction over Plaintiff's 10 || remaining state-law claims and REMANDS this case to Monterey County Superior Court for such 11 other and further proceedings as that Court deems proper. The Clerk shall close the file and send 12 || the necessary materials to the Monterey County Superior Court for the remand. 13 This order terminates Dkt. Nos. 28 and 34.

IT IS SO ORDERED.

3 15 || Dated: 12/9/2020 16 /Mapurerd 3 Sh ab. 5 HAYWOOD S, GILLIAM, JR. nited States District Judge 18 19 20 21 22 23 24 25 26 27 28