United States District Court

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28 1 Plaintiff is currently housed in Solano State Prison.

No. C 09-1959 RS (PR)

ORDER GRANTING MOT. FOR SUMM. J.

United States District Court

For the Northern District of California

 *E-Filed 5/5/10*

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

RON PERNELL WALLS,

Plaintiff,

v.

A. D. LEE, et al., 

Defendants. /

No. C 09-1959 RS (PR)

ORDER GRANTING DEFENDANTS’

MOTION TO DISMISS 

GRANTING DEFENDANTS’

MOTION FOR SUMMARY

JUDGMENT

INTRODUCTION

Plaintiff Ron Pernell Walls is a state prisoner who is proceeding pro se in this civil

rights action brought under 42 U.S.C. § 1983, in which he alleges that defendants, employees

of San Quentin State Prison, violated his First Amendment and due process rights.1

Defendants A. D. Lee, W. N. Burkhart, and Lieutenant Rodriguez move to dismiss the claims

against them on the grounds that plaintiff failed to exhaust his administrative remedies. (See

Docket No. 30.) The remaining defendants, R. Grant, T. A. Lee, and B. Welch move for

summary judgment on the grounds that there are no genuine issues of material fact and that

they are entitled to judgment as a matter of law. (See id.) Plaintiff has not filed an

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No. C 09-1959 RS (PR)

2 ORDER GRANTING MOT. FOR SUMM. J.

opposition, even though he was given adequate time to do so. For the reasons set forth

below, the Court GRANTS the motion to dismiss and the motion for summary judgment, and

DISMISSES the complaint and the action. Judgment will be entered in favor of defendants

as to all claims. 

BACKGROUND

This action arises from a prisoner riot at San Quentin in November 2005. The

following alleged facts are taken from plaintiff’s amended complaint (Docket No. 21) and are

assumed as true for purposes of this order only. While plaintiff was eating in San Quentin’s

dining hall on November 28, 2005, a fight broke out between black and Mexican inmates,

during which plaintiff, who did not participate in the rioting, was injured. Correctional

officers stopped the riot. Defendant T. A. Lee, accompanied by defendant Grant, then

conducted a check of inmates’ hands to see who was injured. Lee observed that plaintiff’s

hands were swollen and cut. Lee, believing that such injuries were caused by plaintiff’s

participation in the riot, ordered plaintiff handcuffed and taken to the medical holding tank. 

Two hours later, Lee informed plaintiff that he (plaintiff) was to be housed in administrative

segregation (“ad seg”) because of his participation in the riot. Plaintiff was then stripsearched, sent to ad seg, and eventually issued a rules violation report for engagement in a

riot. San Quentin investigated the charges against plaintiff of participating in the riot,

eventually finding him not guilty of the charges against him. (Am. Compl., Ex. I.) In

response to the charges, plaintiff pursued administrative remedies. 

MOTION TO DISMISS

The Prison Litigation Reform Act provides that “[n]o action shall be brought with

respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner

confined in any jail, prison, or other correctional facility until such administrative remedies

as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is mandatory and is no

longer left to the discretion of the district court. Woodford v. Ngo, 548 U.S. 81, 84 (2006)

(citing Booth v. Churner, 532 U.S. 731, 739 (2001)). If a reviewing federal court concludes

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No. C 09-1959 RS (PR)

3 ORDER GRANTING MOT. FOR SUMM. J.

that the prisoner has not exhausted nonjudicial remedies, the proper remedy is dismissal

without prejudice. Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003). 

Where a prison’s grievance procedures do not specify the requisite level of factual

specificity required in the grievance, “‘a grievance suffices if it alerts the prison to the nature

of the wrong for which redress is sought.’” Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir.

2009) (quoting Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002)). The grievance should

include sufficient information “to allow prison officials to take appropriate responsive

measures.” Id. (citation and internal quotation omitted). 

A review of the prison grievance record submitted by plaintiff shows that plaintiff

alleged claims only against defendants T. A. Lee and Grant. (See Am. Compl., Exs. D, E, I,

& J.) Because the other defendants are not in any way identified in the prison grievances,

either by name or by factual allegations, the prison would not have been alerted to the nature

of the wrong for which redress is sought. See Griffin, 557 F.3d at 1120. Accordingly,

defendants’ motion to dismiss all claims against A. D. Lee, W. N. Burkhart, and Lieutenant

Rodriguez on the grounds that plaintiff failed to exhaust his administrative remedies is

GRANTED. All claims against A. D. Lee, W. N. Burkhart, and Lieutenant Rodriguez are

hereby DISMISSED without prejudice to plaintiff refiling claims against such defendants

after properly exhausting his administrative remedies. Defendants A. D. Lee, W. N.

Burkhart, and Lieutenant Rodriguez are hereby TERMINATED from this action.

MOTION FOR SUMMARY JUDGMENT

Plaintiff alleges the following claims: (1) defendants subjected plaintiff to retaliation

in violation of the First Amendment by increasing plaintiff’s custody level points resulting in

a transfer to a higher security prison after plaintiff filed a grievance against them for filing a

false rules violation report; (2) defendants violated plaintiff’s right to due process by placing

him in ad seg without providing procedural protections; and (3) defendants violated

plaintiff’s constitutional rights by knowingly using false information to place him in ad seg. 

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No. C 09-1959 RS (PR)

4 ORDER GRANTING MOT. FOR SUMM. J.

Summary judgment is proper where the pleadings, discovery and affidavits

demonstrate that there is “no genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Material facts are those

which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a

reasonable jury to return a verdict for the nonmoving party. Id.

The party moving for summary judgment bears the initial burden of identifying those

portions of the pleadings, discovery and affidavits which demonstrate the absence of a

genuine issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). Where

the moving party will have the burden of proof on an issue at trial, it must affirmatively

demonstrate that no reasonable trier of fact could find other than for the moving party. On an

issue for which the opposing party by contrast will have the burden of proof at trial, as is the

case here, the moving party need only point out “that there is an absence of evidence to

support the nonmoving party’s case.” Id. at 325. 

Once the moving party meets its initial burden, the nonmoving party must go beyond

the pleadings and, by its own affidavits or discovery, “set forth specific facts showing that

there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). The court is only concerned with

disputes over material facts and “factual disputes that are irrelevant or unnecessary will not

be counted.” Anderson, 477 U.S. at 248. It is not the task of the court to scour the record in

search of a genuine issue of triable fact. Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir.

1996). The nonmoving party has the burden of identifying, with reasonable particularity, the

evidence that precludes summary judgment. Id. If the nonmoving party fails to make this

showing, “the moving party is entitled to judgment as a matter of law.” Celotex, 477 U.S. at

323.

(1) Alleged First Amendment Violation

Plaintiff alleges that defendants retaliated against him by raising his custody level

points in response to filing a false rules violation report. (Am. Compl. at 4.) Plaintiff alleges

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No. C 09-1959 RS (PR)

5 ORDER GRANTING MOT. FOR SUMM. J.

that in January 2006, a month after he had filed a grievance against the prison staff,

defendants raised his custody points level from twenty-five to thirty-seven. When plaintiff

asked how his points were raised, the associate warden, B. Welch, stated that, “By the power

invested in me.” Plaintiff further alleges that defendant Burkhart raised his custody level

points to forty-nine in retaliation for plaintiff filing a grievance, and therefore raising his

custody points was “without a penological interest.” (Id.) 

A claim may be stated under § 1983 where a plaintiff alleges retaliation by state actors

for the exercise of his First Amendment rights. See Mt. Healthy City Bd. of Educ. v. Doyle,

429 U.S. 274, 283–84 (1977). The plaintiff must show that the type of activity he was

engaged in was protected by the First Amendment and that the protected conduct was a

substantial or motivating factor for the alleged retaliatory acts. See id. at 287. Retaliation is

not established simply by showing adverse activity by defendant after protected speech;

rather, plaintiff must show a nexus between the two. See Huskey v. City of San Jose, 204

F.3d 893, 899 (9th Cir. 2000) (retaliation claim cannot rest on the logical fallacy of post hoc,

ergo propter hoc, i.e., “after this, therefore because of this”). In order to create a genuine

issue of material fact on retaliatory motive in the First Amendment context, a plaintiff must

establish “‘in addition to evidence that the defendant knew of the protected speech, at least

(1) evidence of proximity in time between the protected speech and the allegedly retaliatory

decision; (2) evidence that the defendant expressed opposition to the speech; or (3) evidence

that the defendant’s proferred reason for the adverse action was pretextual.’” Corales v.

Bennett, 567 F.3d 554, 568 (9th Cir. 2009) (internal citation and emphasis omitted).

Reading the facts in the light most favorable to plaintiff, the Court concludes that

plaintiff has not pointed to evidence precluding summary judgment. See Keenan, 91 F.3d at 

1279. Specifically, plaintiff has not shown a causal nexus between his filing of a grievance

and the raising of his custody points level. Rather, plaintiff’s factual allegations show the

following. In December 2005, defendants detained and charged plaintiff with participation in

a riot based on the undisputed facts that plaintiff was present in the dining hall when the riot

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2

 Plaintiff’s increased point level may have been caused by his facing disciplinary charges

at the time, rather than by any retaliation by defendants.

No. C 09-1959 RS (PR)

6 ORDER GRANTING MOT. FOR SUMM. J.

occurred and that his hand injuries suggested direct, physical participation in the riot. Also,

in December 2005, plaintiff, being not guilty of such charges, filed a grievance. A month

later, defendants raised his custody points level. There is nothing in these factual allegations

to support that one caused the other, apart from that fact that one occurred before the other.2

Such a conclusion is supported by defendants’ undisputed assertion that in January 2006

defendants found plaintiff not guilty of the charges, released him from ad seg, amended his

record, and ordered that all copies of the disciplinary report be destroyed. (Am. Compl., Ex.

I.) Such events do not support plaintiff’s allegation that he suffered retaliation at the hands

of defendants. Rather, such facts indicate that defendants responded positively to plaintiff’s

grievances and assertions of innocence. Accordingly, defendants’ motion for summary

judgment as to this claim is GRANTED. These claims against the defendants are

DISMISSED. Judgment will be entered in favor of defendants as to the claim that

defendants retaliated against plaintiff. 

(2) Placement in Administrative Segregation

Petitioner alleges that defendants violated his right to due process by placing him in ad

seg without providing procedural protections. An essential principle of due process is that a

deprivation of life, liberty or property “‘be preceded by notice and opportunity for hearing

appropriate to the nature of the case.’” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,

542 (1985) (citation omitted). 

Reading the facts in the light most favorable to plaintiff, the Court concludes that

plaintiff has not pointed to evidence precluding summary judgment. More specifically,

plaintiff concedes that from the moment he was apprehended, he was informed of the reasons

for his detention and punishment, and was afforded formal notice of a hearing, and an

opportunity to respond. Plaintiff was, in fact, consequent to a hearing on the charges, found

not guilty. This undisputed evidence supports a conclusion that defendants afforded plaintiff

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No. C 09-1959 RS (PR)

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all the protections of procedural due process. Accordingly, defendants’ motion for summary

judgment as to this claim is GRANTED. These claims are DISMISSED. Judgment will be

entered in favor of defendants as to these claims. 

(3) Alleged Use of False Information to Place Plaintiff in Ad Seg

Plaintiff alleges that defendants violated his due process rights by knowingly using

false information to place him in ad seg. Reading the facts in the light most favorable to

plaintiff, the Court concludes that plaintiff has not pointed to evidence precluding summary

judgment. Plaintiff’s own version of the facts shows that defendants’ belief that plaintiff had

participated in the riot was not unreasonable, let alone false. Specifically, plaintiff states that

he was present in the dining hall when the riot broke out, and that defendants saw that his

hands were swollen and cut, and therefore it appeared that plaintiff had participated in the

riot. Such appearances were later found to be mistaken, but plaintiff has not shown that

defendants knowingly proceeded on false or fabricated information. Accordingly,

defendants’ motion for summary judgment as to this claim is GRANTED. These claims are

DISMISSED. Judgment will be entered in favor of defendants as to the claim that

defendants violated plaintiff’s constitutional rights by knowingly using false information to

place him in ad seg. 

CONCLUSION

For the reasons listed above, defendants’ motion to dismiss all claims against A. D.

Lee, W. N. Burkhart, and Lieutenant Rodriguez is GRANTED. All claims against A. D. Lee,

W. N. Burkhart, and Lieutenant Rodriguez are DISMISSED without prejudice. Defendants

A. D. Lee, W. N. Burkhart, and Lieutenant Rodriguez are TERMINATED from this action.

//

//

//

//

////

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No. C 09-1959 RS (PR)

8 ORDER GRANTING MOT. FOR SUMM. J.

Defendants’ motion for summary judgment against defendants T. A. Lee, R. Grant,

and B. Welch is GRANTED. All claims against T. A. Lee, R. Grant, and B. Welch are

DISMISSED. 

This order terminates Docket No. 30.

The Clerk shall enter judgment in favor of all defendants, terminate the pending

motion, and close the file. 

IT IS SO ORDERED.

DATED: May 5, 2010 

 RICHARD SEEBORG

United States District Judge

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