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 Plaintiff indicates in his notice of change of address that his mother overpaid the

amount due for the $150 filing fee. Plaintiff should have his mother send a letter to the Clerk of

the Court with a reference to the case file number, and produce any records she may have

verifying the overpayment. 

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

PAUL ANTHONY RUPE,

Plaintiff, No. CIV S-04-2630 LKK DAD P

vs.

J.S. WOODWARD, et al., ORDER AND

Defendants. FINDINGS & RECOMMENDATIONS

 /

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to

42 U.S.C. § 1983. Plaintiff has paid the appropriate filing fee.1 This proceeding was referred to

this court by Local Rule 72-302 pursuant to 28 U.S.C. § 636(b)(1).

The court is required to screen complaints brought by prisoners seeking relief

against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

§ 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised

claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be

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granted, or that seek monetary relief from a defendant who is immune from such relief. 28

U.S.C. § 1915A(b)(1),(2). 

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 

Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28

(9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

Cir. 1989); Franklin, 745 F.2d at 1227.

A complaint, or portion thereof, should only be dismissed for failure to state a

claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set

of facts in support of the claim or claims that would entitle him to relief. Hishon v. King &

Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer

v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a

complaint under this standard, the court must accept as true the allegations of the complaint in

question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the

pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor,

Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 

Here, plaintiff claims both that his due process rights were violated when his

classification status was changed prior to the issuance of a rule violation report and that the

disciplinary action was unsupported by any evidence. Plaintiff also claims that because he

received a rule violation report after he submitted an inmate grievance regarding the change in

his classification and visiting privileges, the rule violation was issued as retaliation. Plaintiff

seeks unspecified compensatory damages, punitive damages of $100,000 from each of the twenty

defendants, reinstatement of his A1A classification status, expungement from his central file of

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all disciplinary reports and other information concerning his lawsuits, and an order prohibiting

further retaliation against him.

Plaintiff provides the following allegations and exhibits in support of his claims. 

On May 2, 2004, plaintiff was passing out food trays to the orientation cells when defendant

correctional officer Edmonson claimed that he saw plaintiff receive a piece of paper from an

inmate in cell number 208. (Compl, Pl.’s Decl. at 2; Ex. J.) In his written report, defendant

Edmonson states that he questioned plaintiff, that when he had plaintiff remove his sweat shorts,

a white piece of paper containing a green leafy substance fell to the floor, and that plaintiff

attempted to hide it by stepping on it and then kicking it under the sally port door track. (Ex. J at

2-3.) Plaintiff was placed in administrative segregation and on May 5, 2004, after appearing

before the Institutional Classification Committee (ICC), plaintiff was placed on orientation

status. (Pl.’s Decl. at 2-3.) On May 7, 2004, the Unit Classification Committee (UCC) removed

plaintiff from A1A status to A2B status which impacted plaintiff’s canteen privileges, access to

the exercise yard, and showers. (Id. at 3.) Later, plaintiff received a form 128G which also

changed plaintiff’s work status and restricted his visitation to non-contact visits. (Id.; Ex. D at

2.) On June 1, 2004, plaintiff wrote a letter to the warden and submitted an inmate appeal form

contending that adverse actions were taken before plaintiff was issued a rule violation report,

contrary to California Penal Code section 2932(c)(1)(B). (Compl., Ex. B & C.) Plaintiff argued

that since 30 days had passed since the alleged misconduct, the prison was “procedurally barred

from pursuing this matter” and if a rule violation report was subsequently issued, it would be

deemed a retaliatory act. (Id., Ex. B at 1.) Defendant L. Martinez responded to plaintiff’s letter

stating that if the laboratory analysis was positive for a controlled substance, a rule violation

report would be issued and that until the rule violation issue was resolved, plaintiff would remain

on non-contact visiting status. (Id., Ex. D at 2.) On June 10, 2004, plaintiff received a rule

violation report with supporting documentation confirming that the substance in question was

marijuana. (Id., Pl.’s Decl. at 4.) Plaintiff questions the validity of the laboratory testing because

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he was unable to obtain documentation from the Department of Justice, Bureau of Forensic

Service, which conducted the testing. The Bureau provided the following response to plaintiff’s

Public Records Act request:

You have requested information regarding when a report in BFS

Case No. SC-04-000779-0001 was faxed and/or mailed to Mule

Creek State Prison and the date the report was completed. A

thorough search of the Laboratory’s records was conducted and no

record was found regarding your request.

 Additionally, in as much as your request pertains to investigative

records held by this office, such investigative records are exempt

from disclosure to the public . . . . 

(Compl., Ex. O at 1.) In light of this response, plaintiff asserts that the laboratory report is

invalid, that no marijuana was found, that no actual testing was conducted and that there is no

evidence to support the adverse action taken against him. (Compl., Pl.’s Decl. at 7.) Plaintiff

also points to discrepancies with the date of the laboratory report (Compl., Ex. H), the date the

report was received at Mule Creek State Prison (Id., Ex. G), and the date the referral was made to

the Amador County District Attorney for prosecution (Id., Ex. F). Plaintiff argues that one of

these documents was falsified because a referral to the district attorney could not have been made

before Mule Creek staff received the laboratory report. (Id., Pl.’s Decl at 5.) Plaintiff filed an

inmate grievance regarding the rule violation raising all of these discrepancies. (Id., Pl.’s Decl. at

8 & Ex. Q.) His appeals were denied. Plaintiff claims that defendants who reviewed his appeal

continued the retaliation against him “by providing a nonsensical, irrelevant and evading

response.” (Id., Pl.’s Decl. at 8-10.) 

Plaintiff names as defendants, the correctional officers and administrators who

reviewed his inmate appeals at the three levels of review. Additional defendants are named

because of their involvement in placing plaintiff in administrative segregation, and their

participation in connection with the UCC, ICC, or plaintiff’s disciplinary hearing. (Id., Pl.’s

Decl. at 10-11.) J.S. Woodward, the Director of the Department of Correction, is named as a

defendant because of a departmental policy that requires prison officials to place prisoners’

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appeals, complaint letters to public officials, habeas petitions and civil rights complaints in the

prisoners’ C-files. Plaintiff contends that such a policy encourages retaliation by prison officials

because they have access to review prisoners’ C-files. (Id., Pl.’s Decl. at 10.) 

Plaintiff contends that prior to the issuance of a rule violation report, his

classification status was changed which resulted in more restrictive visitation, canteen, yard and

shower privileges and a change in his work classification. The court finds that plaintiff’s

allegations fail to state a cognizable due process claim. 

The Due Process Clause of the Fourteenth Amendment prohibits state action that

deprives a United States citizen of life, liberty, or property without due process of law. U.S.

Const. amend. XIV. A person alleging a violation of his right to due process must establish that

he was deprived of an interest cognizable under the Due Process Clause and that the procedures

attendant upon that deprivation were not constitutionally sufficient. Kentucky Dep’t of

Corrections v. Thompson, 490 U.S. 454, 459-60 (1989); Board of Regents v. Roth, 408 U.S. 564,

571 (1972). Here, plaintiff complains of restrictions which resulted from his classification

change; however, a prisoner has no constitutional right to a particular classification status. 

Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir.1987) (citing Moody v. Daggett, 429 U.S.

78 (1976)). 

A liberty interest can be created by state law. See Sandin v. Conner, 515 U.S.

472, 483-84 (1995) (holding that a liberty interest is created if the deprivation "imposes an

atypical and significant hardship on the inmate in relation to the ordinary incidents of prison

life"). However, even if plaintiff were able to demonstrate that he has a state created liberty

interest, plaintiff received all the process he was due. When placing a prisoner in administrative

segregation, “[p]rison officials must hold an informal nonadversary hearing within a reasonable

time after the prisoner is segregated. The prison officials must inform the prisoner of the charges

against the prisoner or their reasons for considering segregation. Prison officials must allow the

prisoner to present his views.” Toussaint v. McCarthy, 801 F.2d 1080, 1100 (9th Cir. 1986). 

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The exhibits submitted with plaintiff’s complaint confirm that the same day that plaintiff was

placed in administrative segregation, he was given a notice explaining the reason for his

administrative segregation placement, that within three days he appeared before the ICC for

review of his AdSeg placement and that plaintiff was provided an opportunity to present his

evidence or views at that time. Three days after his adseg placement, plaintiff appeared before

the ICC. A hearing within 72 hours of segregation is “within a reasonable time.” 801 F.2d at

1100, n.20.

As to plaintiff’s contention that he did not receive a rule violation report prior to

the change in his classification and the placement of restrictions on his visitation, canteen,

exercise, and shower privileges, due process does not require that a rule violation report be issued

prior to such action. As the court noted above, plaintiff received an administrative segregation

unit placement notice (CDC 114-D) explaining the reasons for the placement. He appeared

before the ICC for a review of his adseg placement. At the ICC hearing and subsequent UCC

hearing, plaintiff was provided the opportunity to express his views and to present his evidence;

however, plaintiff chose to make no comment. To the extent that plaintiff relies on prison

regulations in support of his assertion that the rule violation report must be issued within a

certain time period or prior to the imposition of adverse action, the court finds no case authority

to support this claim. In fact, “inmates lack a separate constitutional entitlement to a specific

prison grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann

v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)). Thus, the court finds no due process violation

based on plaintiff’s claim that a rule violation report was not issued prior to the change in his

classification and other resulting adverse actions. 

Next, plaintiff points to discrepancies in the facility’s documents and laboratory

report to argue that there is no evidence to support the hearing officer’s guilty finding on the rule

violation report for possession of marijuana. Although plaintiff has not established a cognizable

liberty interest, the court also finds that this due process claim fails under the “some evidence”

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standard. Superintendent vs. Hill, 472 U.S. 445, 455 (1985). Due process requires that there be

some evidence to support the decision of the prison disciplinary board. “This standard is met if

there was some evidence from which the conclusion of the administrative tribunal could be

deduced . . . . Ascertaining whether this standard is satisfied does not require examination of the

entire record, independent assessment of the credibility of witnesses, or weighing of the

evidence. Instead, the relevant question is whether there is any evidence in the record that could

support the conclusion reached by the disciplinary board.” Id. (internal quotation marks and

citations omitted). Here, there was an eye-witness who saw plaintiff in possession of two rolled

cigarettes containing a green, leafy substance and there is a laboratory report indicating that the

cigarettes were analyzed and determined to contain marijuana. Plaintiff argues that the

laboratory report is invalid because his Public Records Act (PRA) request to the Department of

Justice, Bureau of Forensic Services produced no disclosures. Plaintiff misinterprets the

response to his PRA request. Plaintiff asked for information regarding when the report was

faxed or mailed to Mule Creek State Prison and when the report was completed. The PRA

response was that no record was found. In other words, there are no documents which record

either the date when the report was mailed or faxed to Mule Creek State Prison or the date the

report was completed by the Bureau of Forensic Services. The court also finds unpersuasive

plaintiff’s argument that there are discrepancies with dates and that the laboratory report should

therefore be disregarded. The court finds that there was some evidence to support the finding

that plaintiff was guilty of possessing marijuana. 

Lastly, the court finds that plaintiff has failed to state a cognizable retaliation

claim. Plaintiff contends that he sent a letter to Warden Kernan asking that his classification

status be corrected and stating that if any rule violation report was issued subsequently, he would

“consider it an act of retaliation.” (Compl., Rupe Decl. at 4.) Plaintiff also contends that based

on CDC policy, all inmate grievances, habeas petitions and civil actions are stored in the 

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prisoner’s central file (C-file), and that this results in retaliation because CDC employees have

access to the C-files. (Id., Rupe Decl. at 1.) 

To support a claim of retaliation under § 1983, a prisoner must allege that (1)

prison officials retaliated against him for exercising his constitutional rights, and (2) the

retaliatory action does not advance legitimate goals of the correctional institution or is not

narrowly tailored to achieve those goals. See Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir.

1985). A prisoner must also establish that the protected conduct was a substantial or motivating

factor for the alleged retaliatory acts. See Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274,

285-87 (1977). The court finds that plaintiff has failed to demonstrate that retaliation for his

litigation and grievance activities was the substantial or motivating factor when plaintiff’s

classification status was changed and privileges were restricted. As the court noted above, there

was more than “some evidence” to support the rule violation. In addition, there is a legitimate

penological interest to restrict a prisoner’s contacts, both inside and outside the institution, while

an investigation for possession of contraband is pending. Therefore, the court is not persuasive

by plaintiff’s argument that retaliation should be implied because the action taken against him

was issued after he sent a letter to the warden. In fact, the rule violation report was issued on

June 3, 2004, after the Department of Justice confirmed that the seized substance was marijuana. 

On December 13, 2004, plaintiff filed an ex parte motion requesting that the court

prohibit the California Attorney General’s Office from representing the defendants in this action. 

The request will be rejected. The state has a mandatory duty to represent the state and any state

officer acting in an official capacity. See Cal. Gov. Code § 12512 ("The Attorney General shall .

. . defend all causes to which the State, or any State officer is a party in his or her official

capacity."). In representing the state, the Attorney General will also normally represent the

public interest. See, e.g., D'Amico v. Board of Medical Examiners, 11 Cal. 3d 1, 14-15 (1974). 

In an exceptional case, the Attorney General may recognize a conflict of interest between the

duty to represent the public interest and the duty to represent a state agency. "However, unless

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the Attorney General asserts the existence of such a conflict, it must be concluded that the actions

and determinations of the Attorney General in such a lawsuit are made both a representative of

the public interest and as counsel for the state agency or officer." Id., 11 Cal. 3d at 15.

The court finds that this case does not present "the exceptional case." It is

exceedingly common in this district for state prisoners to file civil rights actions against the

California Department of Corrections and its employees based on constitutional grounds. These

cases do not present the type of "public interest" case which would normally invoke a potential

conflict of interest. Therefore, the court finds no merit to plaintiff's claim that the representation

of defendants by the Attorney General presents a conflict of interest. 

Accordingly, IT IS HEREBY ORDERED that plaintiff’s December 13, 2004

motion to prohibit the California Attorney General to represent defendants, is denied. 

Also, IT IS HEREBY RECOMMENDED that this action be dismissed for failure

to state a claim. 

These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty

days after being served with these findings and recommendations, plaintiff may file written

objections with the court. The document should be captioned “Objections to Magistrate Judge’s

Findings and Recommendations.” Plaintiff is advised that failure to file objections within the

specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

F.2d 1153 (9th Cir. 1991).

DATED: October 10, 2005.

DAD:4

rupe2630.f&r

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