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1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

CARL DAVID WHITE,

Plaintiff, No. CIV S-04-2276 GEB GGH P

vs.

CALIFORNIA DEPARTMENT OF 

CORRECTIONS, et al., ORDER AND

Defendants. FINDINGS & RECOMMENDATIONS

 /

I. Introduction

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

42 U.S.C. § 1983. Pending before the court is defendants’ May 19, 2005, motion to dismiss

pursuant to Fed. R. Civ. P. 12(b) and (b)(6). Defendants argue that this action should be

dismissed based on plaintiff’s failure to exhaust administrative remedies and for his failure to

state a colorable claim. After carefully reviewing the record, the court orders defendants’ motion

granted in part, and recommends that defendants’ motion be denied and granted in part.

II. Background

This action is proceeding on the amended complaint filed December 20, 2004. 

The motion to dismiss is made on behalf of defendants Rhodes, Jett, Prosper, Schroers, Shannon

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 The court also ordered service of defendants Hough, Gonzales, Moncayo and Adams. 

These defendants have not yet appeared.

2

and Ceaglio.1 Plaintiff alleges that on October 1, 2002, defendant Rhodes affixed an “R” suffix

to plaintiff’s custody designation, misidentifying plaintiff as a sex offender. Plaintiff alleges that

defendant Rhodes fabricated a document stating that plaintiff had been arrested for Cal. Penal

Code § 288a. Plaintiff contends that defendant Rhodes knew that plaintiff had not been arrested

for this offense. 

Plaintiff alleges that defendant Jett instructed defendant Rhodes to leave the R

suffix in plaintiff’s custody classification, although he also knew that this classification was

improper. 

Plaintiff alleges that he filed an administrative appeal regarding the improper R

suffix classification. During an appeal interview, defendant Shannon admitted to plaintiff that

the R suffix should be removed but said he would not risk his job to do it. Plaintiff alleges that

on May 28, 2003, defendants Schroers and Ceaglio refused to remove the R suffix. Plaintiff

alleges that in responding to an administrative appeal regarding the matter, defendant Prosper

declined to remove the R suffix. 

Plaintiff alleges that imposition of the R suffix classification put his life in

jeopardy and curtailed his ability to participate in certain jobs. Plaintiff was the target of

violence, harassment and repeated threats from staff and inmates. As a result of this

classification, one year was added to plaintiff’s sentence because it made him ineligible for

conservation camp placement where he would have earned two for one credits. 

III. Administrative Exhaustion

42 U.S.C. § 1997e(a) 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.” In order for California prisoners to exhaust administrative remedies, they must

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proceed through several levels of appeal: 1) informal resolution, 2) formal written appeal on a

CDC 602 inmate appeal form, 3) second level appeal to the institution head or designee, and 

4) third level appeal to the Director of the California Department of Corrections. Barry v.

Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997) (citing Cal. Code Regs. tit. 15, § 3084.5). A

final decision from the Director’s level of review satisfies the exhaustion requirement. Id. at

1237-38.

In Booth v. Churner, 121 S. Ct. 1819 (2001) the Supreme Court held that inmates

must exhaust administrative remedies, regardless of the relief offered through administrative

procedures. 121 S. Ct. at 1825. Therefore, inmates seeking money damages must completely

exhaust their administrative remedies. 42 U.S.C. § 1997e(a) provides that no action shall be

brought with respect to prison conditions until such administrative remedies as are available are

exhausted. McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002).

In the amended complaint, plaintiff alleges that appeal nos. 02-5272 and 02-5491

exhausted his administrative remedies. Appeal no. 02-5491, denied at the director’s level on

March 24, 2003, challenged imposition of the R suffix. Defendants’ Motion, Exhibit 1. Appeal

no. 02-5272, denied at the director’s level on April 9, 2003, also challenged imposition of the R

suffix. Id., Exhibit 2. 

Defendants argue that appeal nos. 02-5272 and 02-5491 did not exhaust plaintiff’s

remedies as to defendants Shannon, Prosper, Ceaglio and Schroers because these appeals did not

name these defendants. Defendants argue that the alleged deprivations committed by defendants

Ceaglio and Schroers occurred after plaintiff had filed his director level appeals. Defendants also

argue that the only connection between defendants Shannon and Prosper was through the

grievance appeal system. Defendants contend that plaintiff could not have included them in his

appeals because their actions occurred after he filed his related grievances.

Plaintiff alleges that defendants Shannon and Prosper improperly denied his lower

level grievances challenging imposition of the R suffix. Defendants suggest that plaintiff should

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be required to file yet another round of grievances challenging defendants’ denial of his

administrative appeals in appeal nos. 02-5272 and 02-5491. Requiring another round of appeals

does not make sense. By appealing defendants’ decisions to the next levels of appeal, plaintiff

has exhausted his claims against these defendants.

At the time defendants Schroers and Ceaglio refused to remove the R suffix,

appeal nos. 02-5272 and 02-5491 had been denied at the director’s level. Defendants argue that

plaintiff should be required to, in essence, “reappeal” the issue of the imposition of the R suffix

as to these particular defendants. 

Appeal nos. 02-5272 and 02-5491 presented prison officials with the relevant

factual circumstances giving rise to his claim challenging imposition of the R suffix. This was

sufficient to put prison officials on notice as to the claims raised in the instant action. See Porter

v. Nussle, 534 U.S. 516, 531 122 S.Ct. 983 (2002) (emphasizing importance of providing prison

officials with notice and opportunity to take action before prisoner files suit). Under the facts

presented, there is nothing to indicate that prison officials would have done anything differently

had plaintiff filed additional grievances against defendants Schroers and Ceaglio regarding

imposition of the R suffix. Plaintiff is not required to file additional grievances regarding the

alleged ongoing violation. See Irvin v. Zamora, 161 F.Supp.2d 1125 (S.D.Cal. 2001) (prisoner

not required to name individual defendants in administrative appeals regarding ongoing

deprivations of medical accommodation). 

Moreover, in his opposition, plaintiff cites Cal. Code Regs. tit. 15, § 3084.3(c)(2)

which provides that an administrative appeal may be rejected because it duplicates the plaintiff’s

previous appeal upon which a decision has been rendered. An appeal regarding the decision by

defendants Schroers and Ceaglio to maintain plaintiff’s R suffix could be denied pursuant to §

3084.3(c)(2). Requiring plaintiff to file another appeal regarding these defendants under these

circumstances makes no sense.

/////

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For the reasons discussed above, defendants’ motion to dismiss for failure to

exhaust administrative remedies should be denied.

IV. Failure to State a Claim

Legal Standard 

A complaint should not be dismissed under Rule 12(b)(6) unless it appears

beyond doubt that plaintiff cannot prove any set of facts consistent with his allegations which

would entitle him to relief. NOW, Inc. v. Schiedler, 510 U.S. 249, 256, 114 S. Ct. 798, 803 

(1994); Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 2232 (1984), citing Conley

v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101 (1957), Cervantes v. City of San Diego, 5 F.3d

1273, 1274-75 (9th Cir. 1993). Dismissal of the complaint, or any claim within it, “can be based

on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a

cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990);

see also Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). 

In considering a motion to dismiss, the court must accept as true the allegations of

the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S.

Ct. 1848, 1850 (1976), construe the pleading in the light most favorable to the party opposing the

motion and resolve all doubts in the pleader’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421,

89 S. Ct. 1843, 1849, reh’g denied, 396 U.S. 869, 90 S. Ct. 35 (1969). The court will “‘presume

that general allegations embrace those specific facts that are necessary to support the claim.’”

NOW, 510 U.S. at 256, 114 S. Ct. at 803, quoting Lujan v. Defenders of Wildlife, 504 U.S. 555,

561, 112 S. Ct. 2130, 2137 (1992). Moreover, pro se pleadings are held to a less stringent

standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 596

(1972).

The court may consider facts established by exhibits attached to the complaint. 

Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also

consider facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d

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1385, 1388 (9th Cir. 1987); and matters of public record, including pleadings, orders, and other

papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir.

1986). The court need not accept legal conclusions “cast in the form of factual allegations.” 

Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). 

A pro se litigant is entitled to notice of the deficiencies in the complaint and an

opportunity to amend, unless the complaint’s deficiencies could not be cured by amendment. See

Noll v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987).

Analysis

Plaintiff alleges that imposition of the R suffix violated his right to due process. 

Prisoners have a federally protected liberty interest in due process when the alleged violation

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

prison life. Sandin v. Conner, 515 U.S. 472, 483-85, 115 S. Ct. 2293 (1995). 

Neal v. Shimoda, 131 F.3d 818 (9th Cir. 1997) involved the classification of a

prisoner as a sex offender coupled with mandatory participation in Hawaii’s Sex Offender

Treatment Program (SOTP), the successful completion of which was a precondition to parole

eligibility. Relying on Sandin, the Ninth Circuit in Neal stated that due to its stigmatizing

effects, a sex offender classification “is precisely the type of atypical and significant hardship on

the inmate in relation to the ordinary incidents of prison life that the Supreme Court held created

a protected liberty interest.” Neal, 131 F.3d at 829. Although this statement suggests that a mere

“sex offender” classification, with nothing more, creates a liberty interest, the court’s discussion

throughout the remainder of the opinion indicates that more of a deprivation must be present to

effect a prisoner’s liberty interests. The Ninth Circuit reasoned that because Hawaii’s

“regulations render the inmate completely ineligible for parole if the [SOTP] is not satisfactorily

completed, the attachment of the ‘sex offender’ label to the targeted inmate has a practical and

inevitable coercive effect on the inmate’s conduct.” Id.

\\\\\

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Pursuant to Neal and Sandin, to state a colorable due process claim plaintiff must

allege that he suffered an atypical and significant hardship as a result of the imposition of the R

suffix. In other words, imposition of the R suffix standing alone does not state a colorable due

process claim. In amended complaint, plaintiff alleges two specific injuries he received as a

result of the R suffix: 1) he was the target of violence and harassment; 2) because he could not

attend conservation camp, he did not receive proper time credits.

Defendants first argue that plaintiff has only vaguely alleged that he has been the

target of violence because of his custody designation. While plaintiff alleges both in the

amended complaint and his opposition that he has been assaulted because of the R suffix, he does

not specifically describe any of these incidents. While an increased risk to physical safety may

constitute an atypical and significant hardship, plaintiff must link this risk to the R suffix. In

other words, plaintiff must plead specific facts demonstrating that the assaults and threats he

suffered were based on the R suffix. For all the court and defendants know, these assaults may

have occurred for reasons other than the R suffix. Accordingly, the motion to dismiss on this

ground is granted with leave to amend. If plaintiff files a second amended complaint, he must

specifically describe the incidents during which his safety was threatened and discuss how these

incidents are linked to his R suffix.

Defendants next argue that the court lacks jurisdiction over plaintiff’s claim

regarding time credits. As discussed above, plaintiff alleges that he was ineligible to earn two for

one credits due to the R suffix. As relief, plaintiff requests that the court order that he receive

two for one credits retroactively.

In their motion, defendants cite Preiser v. Rodriguez, 411 U.S. 475, 487, 93 S. Ct.

1827 (1973), where the Supreme Court held that a prisoner could not bring a § 1983 civil rights

claim in federal court when the prisoner was seeking injunctive relief to compel the restoration of

good conduct time credits. Because the requested relief necessarily would have resulted in

shortening the duration of the prisoner’s confinement, the Supreme Court held that habeas corpus

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was the prisoner’s sole federal remedy. Preiser, 411 U.S. at 500, 93 S. Ct. 1827. 

In the amended complaint, plaintiff specifically alleges that his inability to earn

time credits as a result of the R suffix extended his time in custody by more than one year. 

Pursuant to Preiser, the court finds that it cannot award plaintiff retroactive time credits in this

civil rights action. Accordingly, the court recommends that the motion to dismiss this claim for

relief be granted. Plaintiff should not include this claim for relief in his second amended

complaint.

Defendants also move to dismiss the claims against defendants Shannon, Prosper,

Ceaglio and Schroers on grounds that plaintiff did not allege any conduct on their part which

violated any constitutional right. Defendants first argue that the only allegation against

defendants Shannon and Prosper is that they denied plaintiff’s administrative appeals challenging

imposition of the R suffix. Inmates lack a separate constitutional entitlement to a specific prison

grievance procedure. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003). Therefore, plaintiff

cannot state a claim against these defendants based only on their participation on the appeals

process.

Plaintiff may be claiming that by denying his appeals, these defendants ratified the

decision by defendants Rhodes and Jett to impose the R suffix.

The Civil Rights Act under which this action was filed provides as follows:

Every person who, under color of [state law] . . . subjects, or causes

to be subjected, any citizen of the United States . . . to the

deprivation of any rights, privileges, or immunities secured by the

Constitution . . . shall be liable to the party injured in an action at

law, suit in equity, or other proper proceeding for redress. 

42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the

actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

Monell v. Dep’t. of Social Servs., 436 U.S. 658, 98 S. Ct. 2018 (1978); Rizzo v. Goode, 423 U.S.

362, 96 S. Ct. 598 (1976). “A person ‘subjects’ another to the deprivation of a constitutional

right, within the meaning of § 1983, if he does an affirmative act, participates in another’s

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affirmative acts or omits to perform an act which he is legally required to do that causes the

deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

Moreover, supervisory personnel are generally not liable under § 1983 for the

actions of their employees under a theory of respondeat superior and, therefore, when a named

defendant holds a supervisorial position, the causal link between him and the claimed

constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862

(9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S.

941 (1979). Vague and conclusory allegations concerning the involvement of official personnel

in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th

Cir. 1982). Moreover, supervisory liability under Section 1983 cannot attach where the

allegation of liability is based upon a mere failure to act. Instead, the liability must be based

upon active unconstitutional behavior.

Defendants sued in their individual capacity must be alleged to have: personally

participated in the alleged deprivation of constitutional rights; knew of the violations and failed

to act to prevent them; or that they implemented a policy that repudiates constitutional rights and

was the moving force behind the alleged violations. Larez v. City of Los Angeles, 946 F.2d 630,

646 (9th Cir. 1991); Hansen v. Black, 885 F.2d 642 (9th Cir. 1989); Taylor v. List, 880 F.2d

1040 (9th Cir. 1989). “Although a § 1983 claim has been described as ‘a species of tort liability,’

Imbler v. Pachtman, 424 U.S. 409, 417, 96 S. Ct. 984, 988, 47 L.Ed.2d 128, it is perfectly clear

that not every injury in which a state official has played some part is actionable under that

statute.” Martinez v. State of California, 444 U.S. 277, 285, 100 S. Ct. 553, 559 (1980). 

“Without proximate cause, there is no § 1983 liability.” Van Ort v. Estate of Stanewich, 92 F.3d

831, 837 (9th Cir. 1996). 

The search, which was performed in accordance with this

constitutionally valid strip search policy, was subsequently ratified

by the School Board when Mr. Williams filed a grievance. 

Therefore, Williams’ only grasp at evoking municipal liability

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under § 1983 is to show that this subsequent ratification is

sufficient to establish the necessary causation requirements. Based

on the facts, the Board believed Ellington and his colleagues were

justified in conducting the search of Williams. There was no

history that the policy had been repeatedly or even sporadically

misapplied by school officials in the past. Consequently, the

School Board cannot be held liable for the ratification of the search

in question, because this single, isolated decision can hardly

constitute the “moving force” behind the alleged constitutional

deprivation.

Williams v. Ellington, 936 F.2d 881, 884-885 (9th Cir. 1991).

 The court is unwilling to adopt a rule that anyone involved in adjudicating

grievances after the fact is per se potentially liable under a ratification theory. While plaintiff

alleges that defendant Shannon admitted to him that the R suffix should be removed but would

not risk his job to do it, plaintiff does not allege that defendant Shannon acted pursuant to a

policy in making this decision. Accordingly, the motion to dismiss as to defendants Shannon and

Prosper on these grounds should be granted because they are not adequately linked to the alleged

deprivation.

Defendants also argue that plaintiff has failed to adequately link defendants

Ceaglio and Schroers to the alleged deprivation. Plaintiff alleges that on May 28, 2003, these

defendants refused to remove the R suffix. Plaintiff does not describe the circumstances under

which this occurred. If these defendants refused to remove the R suffix in the context of denying

an administrative appeal, then the claims against these defendants should be dismissed. 

However, because the court does not know under what circumstances defendants acted, the court

cannot evaluate this claim. Accordingly, the claims against these defendants are dismissed with

leave to amend. If plaintiff files a second amended complaint, he must clarify this matter.

Finally, defendants move to dismiss plaintiff’s state law tort claims for his failure

to comply with the California Tort Claims Act. It is not clear to the court that plaintiff has raised

any state law claims. Accordingly, the second amended complaint must clearly identify any state

law claims plaintiff intends to raise.

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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the

conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See

Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the complaint must allege in specific terms

how each named defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless

there is some affirmative link or connection between a defendant’s actions and the claimed

deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir.

1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory

allegations of official participation in civil rights violations are not sufficient. See Ivey v. Board

of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

In addition, plaintiff is informed that the court cannot refer to a prior pleading in

order to make plaintiff’s amended complaint complete. Local Rule 15-220 requires that an

amended complaint be complete in itself without reference to any prior pleading. This is

because, as a general rule, an amended complaint supersedes the original complaint. See Loux v.

Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original

pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an

original complaint, each claim and the involvement of each defendant must be sufficiently

alleged. 

Accordingly, IT IS HEREBY ORDERED that:

1. Defendants’ May 19, 2005, motion to dismiss for failure to state a claim is

granted with respect to the following claims: (1) imposition of the R suffix caused plaintiff to

suffer from increased risk to safety; (2) the claims against defendants Ceaglio and Schroers;

2. Plaintiff is granted thirty days from the date of this order to file a second

amended complaint; if plaintiff does not file a second amended complaint, the court will issue

further orders;

/////

/////

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IT IS HEREBY RECOMMENDED that:

1. Defendants’ May 19, 2005, motion to dismiss on grounds that plaintiff failed

to exhaust administrative remedies be denied;

2. Defendants’ May 19,2005, motion to dismiss for failure to state a claim be

granted with respect to the following claims: (1) imposition of the R suffix caused plaintiff to not

earn appropriate time credits; (2) the claims against defendants Shannon and Prosper. 

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, any party may file written

objections with the court and serve a copy on all parties. Such a document should be captioned 

“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

shall be served and filed within ten days after service of the objections. The parties are 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: 11/1/05

/s/ Gregory G. Hollows

 

GREGORY G. HOLLOWS

UNITED STATES MAGISTRATE JUDGE

ggh:kj

wh2276.mtd

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