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 On September 21, 2004, the court dismissed plaintiff’s complaint and granted him

leave to file an amended complaint. Plaintiff filed his amended complaint on October 7, 2004, a

second amended complaint on March 2, 2005, and a third amended complaint on April 27, 2005. 

Since the third amended complaint supercedes previously amended complaints, the operative

pleading is the third amended complaint filed on April 27, 2005. Plaintiff is cautioned that no

additional amended complaints may be filed without leave of court. See Fed. R. Civ. P. 15(a).

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

ALONZO REED,

Plaintiff, No. CIV S-04-1822 LKK DAD P

vs.

S. PETERSON, ORDER AND

Defendant. FINDINGS & RECOMMENDATIONS

 /

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

42 U.S.C. § 1983. Before the court is plaintiff’s third amended complaint, filed on April 27,

2005.1 The court will recommend that plaintiff’s due process, defamation, slander, and libel

claims be dismissed. Also, the court will dismiss the third amended complaint and grant plaintiff

leave to file a fourth amended complaint limited to plaintiff’s retaliation and conspiracy claims.

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.

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§ 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

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). 

Plaintiff alleges that while he was incarcerated at California State Prison -

Sacramento (CSP-Sacramento), defendant correctional officer Peterson violated plaintiff’s

Fourteenth, Eighth, and Ninth Amendment rights by issuing a false rule violation report for

indecent exposure. The rule violation charge was subsequently dismissed at an administrative

hearing on July 22, 2004. Plaintiff was informed in the court’s September 21, 2004 order

“[f]alse accusations of misconduct filed against an inmate do not constitute a deprivation of

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constitutional rights where the charges are subsequently adjudicated in a fair hearing.” Order

filed on 9-21-04 at 3. Plaintiff was granted leave to file an amended complaint so that he could

provide further allegations as to what procedural protections he was allegedly denied or to

otherwise clarify his constitutional claim. In his third amended complaint, plaintiff claims that

his due process rights were violated based on defendant Peterson’s violation of state regulations

prohibiting unethical conduct by state employees. Although states may create liberty interests

that are protected by the due process clause, those interests are generally limited to freedom from

restraint which “imposes atypical and significant hardship on the inmate in relation to the

ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). The court finds

that no liberty interest was created here by the state employee conduct regulations. Therefore, the

court will recommend that this claim be dismissed. 

Plaintiff also claims his constitutional rights under the Fourteenth, Ninth and

Eighth Amendments were violated by defendant Peterson’s defamation, libel, and slander. It

appears that plaintiff is claiming that the issuance of an allegedly false rule violation report

violates his constitutional rights because his reputation has been injured. In Paul v. Davis, 424

U.S. 693, 712 (1976), the Supreme Court held that any harm or injury to an individual's

reputation, even where inflicted by a government official, does not result in a deprivation of

"liberty" or "property" and does not invoke the procedural protection of the due process clause. 

Thus, whatever injury plaintiff suffered due to defendant Peterson's actions, that injury does not

rise to one of constitutional dimensions. Therefore, the court will recommend that these claims

also be dismissed.

Next, plaintiff claims that defendants O’Brian and Kernan failed to process his

inmate grievance concerning defendant Peterson’s false report in violation of his due process

rights guaranteed under the First, Fourteenth, and Ninth Amendments. (Fourth Am. Compl, ¶ ¶

36-37.) “[I]nmates lack a separate constitutional entitlement to a specific prison grievance

procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003), cert. denied, 541 U.S. 1063

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(2004)). Therefore, plaintiff’s due process claims concerning defendants O’Brian and Kernan are

not cognizable and should be dismissed. 

Plaintiff also claims that defendant Peterson issued the false rule violation report

in retaliation for plaintiff’s grievances filed against correctional officers and staff at High Desert

State Prison for allegedly threatening to kill plaintiff or have him killed. Plaintiff alleges that

when he was transferred to CSP-Sacramento, defendant Peterson had access to plaintiff’s

administrative segregation file which showed that plaintiff had been charged with indecent

exposure at High Desert State Prison. Plaintiff alleges that defendant Peterson conspired to

continue the same pattern of issuing false rule violations by charging plaintiff with indecent

exposure as was done at High Desert. Plaintiff claims that as a result of the retaliation, he has

suffered great physical, emotional, and psychological pain. These bare allegations are

insufficient for the reasons set forth below and the court will dismiss the retaliation claim and

grant plaintiff leave to file a fourth amended complaint. 

In this regard, plaintiff is advised that 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 allege facts that would 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). Bare allegations are

insufficient to avoid summary dismissal of a retaliation claim. See Rizzo, 778 F.2d at 532, n.4;

see also Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). Therefore, in the fourth amended

complaint, plaintiff must provide additional details regarding the administrative grievances or

lawsuits which were the protected activity plaintiff was engaged in and which triggered the

retaliatory action. Plaintiff must also provide allegations as to how each defendant was aware of

/////

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the protected activity. Finally, plaintiff should clarify whether he is alleging that he had no

interaction or conversation with defendant Peterson on June 10, 2004.

In his final claim, plaintiff alleges that there was a conspiracy between prison

officials at High Desert State Prison and defendants at CSP-Sacramento “to deny plaintiff the

equal protection of law to be free from retaliatory acts and cruel and unusual punishment by

falsefying [sic] disciplinary and incident reports and in violation of plaintiff[‘s] [F]irst

Amendment [rights]. (Fourth Am. Compl., Attach. ¶ 31.) Plaintiff also alleges another

conspiracy between defendants O’Brian and Kernan to cover-up defendant Peterson’s

misconduct by failing to process plaintiff’s inmate grievance. (Id. at ¶ 36.) Plaintiff is advised

that in order to state a conspiracy claim under § 1983, a plaintiff must allege some deprivation of

a constitutional right which resulted from the alleged conspiracy. See Woodrum v. Woodward

County, Okla., 866 F.2d 1121, 1126 (9th Cir. 1989). Moreover, “[a] conspiracy occurs only

when the parties have reached ‘a unity of purpose or a common design and understanding, or a

meeting of minds in an unlawful arrangement.’” William Inglis & Sons Baking Co. v. ITT

Continental Baking Co., 668 F.2d 1014, 1055 (9th Cir. 1981) (quoting American Tobacco Co. v.

United States, 328 U.S. 781, 809-10 (1946)). Thus, in his fourth amended complaint, plaintiff

must provide allegations that would show that there was an agreement by the defendants and

officers at High Desert State Prison as well as an agreement between defendants O’Brian and

Kernan to violate plaintiff’s constitutional rights. See Woodrum, 866 at 1126; Fonda v. Gray,

707 F.2d 435, 438 (9th Cir. 1983). Plaintiff must also provide further details regarding about the

specific inmate grievance or lawsuit which allegedly motivated the conspirators. 

The court notes that plaintiff has named Capt. S.J. Vance as a defendant in the

caption of the second amended complaint but has made no factual allegations concerning this

defendant. In his fourth amended complaint, plaintiff must allege in specific terms how each

named defendant is involved in the alleged violation of his constitutional rights. There can be no

liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a

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 Plaintiff is advised that his fourth amended complaint must be limited to the claims

specified in this order. Claims and allegations concerning the removal of his single-cell status

and transfer are not to be included in the fourth amended complaint because the housing changes

occurred after this action was filed. See Mot. for Injunction at 12 (representing that plaintiff’s

single-cell status was terminated on December 8, 2004). 

6

defendant's actions and the claimed deprivation. Rizzo, 423 U.S. 362; 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. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

On April 27, 2005, plaintiff filed a motion for a temporary restraining order and/or

preliminary injunction seeking to prohibit correctional officers, the warden, the Director of the

California Department of Corrections, and attorneys from refusing to process his administrative

grievances. Plaintiff’s provides a lengthy statement about how he has been hindered in pursuing

numerous administrative complaints. These complaints alleged that defendant Peterson and

other correctional staff issued false reports about plaintiff, that appeals officers’ refused to

process his grievances, that medical staff conspired to deprive plaintiff of his medication, that

appeals officers mis-classified plaintiff’s staff complaints as disciplinary or living-conditions

complaints, that correctional officers instigated hostility between plaintiff and other inmates, and

that mental health officials conspired to have plaintiff transferred to a mental hospital. Plaintiff

seeks to prohibit further interference with his access to the courts, to prohibit harassment and

retaliation, to keep defendant Peterson and officer Rowe a hundred yards away from him, and to

prohibit searches of plaintiff’s cell unless he is present and the search is supervised by a

correctional sergeant or lieutenant. Plaintiff also claims that he has been removed from singlecell status and that he has been informed that he may be transferred to the care of the Department

of Mental Health.2 Plaintiff seeks restoration of his single-cell status and an order prohibiting his

transfer. Plaintiff argues that he has a constitutional right to have his grievances processed so

that he can exhaust his administrative remedies before proceeding to court. At the same time,

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plaintiff indicates that he was able to file complaints in state court with respect to several of these

incidents. 

The legal principles applicable to a request for injunctive relief are well

established. To prevail, the moving party must show either a likelihood of success on the merits

and the possibility of irreparable injury, or that serious questions are raised and the balance of

hardships tips sharply in the movant’s favor. See Coalition for Economic Equity v. Wilson, 122

F.3d 692, 700 (9th Cir. 1997); Oakland Tribune, Inc. v. Chronicle Publ’g Co., 762 F.2d 1374,

1376 (9th Cir. 1985). The two formulations represent two points on a sliding scale with the focal

point being the degree of irreparable injury shown. Oakland Tribune, 762 F.2d at 1376. “Under

any formulation of the test, plaintiff must demonstrate that there exists a significant threat of

irreparable injury.” Id. In the absence of a significant showing of possible irreparable harm, the

court need not reach the issue of likelihood of success on the merits. Id.

It is well-settled that "[p]risoners have a constitutional right of access to the courts

guaranteed by the Fourteenth Amendment." Bounds v. Smith, 430 U.S. 817, 821 (1977). 

However, an inmate alleging a violation of Bounds must demonstrate an actual injury to court

access. Lewis v. Casey, 518 U.S. 343, 349 (1996). The “actual injury” requirement pertains

even where a prisoner complains of an inadequate law library or inadequate assistance from

persons trained in the law. Id. To demonstrate "actual injury," plaintiff must show that he "could

not present a claim to the courts because of the state's failure to fulfill its constitutional

obligations." Allen v. Sakai, 48 F.3d 1082, 1091 (9th Cir. 1995). Here, plaintiff has stated that

he was able to filed complaints with the state courts when his administrative appeals were

allegedly not processed. Plaintiff has failed to demonstrate actual injury; therefore, his request

for injunctive relief concerning his complaints and grievances should be denied. In addition,

plaintiff has not demonstrated a likelihood of success on the merits. As indicated above,

“inmates lack a separate constitutional entitlement to a specific prison grievance procedure.” 

Ramirez v. Galaza, 334 F.3d at 860. 

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As to plaintiff’s request for a court order restoring his single cell status and

prohibiting his transfer, the motion should also be denied. Prison inmates do not have a

constitutional right to be incarcerated at a particular correctional facility or to be transferred from

one facility to another. See Meachum v. Fano, 427 U.S. 215, 224-25 (1976). In addition, a

prisoner has no constitutional right to a particular classification status. Hernandez v. Johnston,

833 F.2d 1316, 1318 (9th Cir. 1987). Therefore, plaintiff has not demonstrated a likelihood of

success on the merits of his claim in this regard. 

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff’s third amended complaint, filed on April 27, 2005, is dismissed with

leave to file a fourth amended complaint to clarify plaintiff’s retaliation and conspiracy claims; 

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

fourth amended complaint that complies with the requirements of the Civil Rights Act, the

Federal Rules of Civil Procedure, and the Local Rules of Practice; plaintiff shall use the form

complaint provided by the court; the fourth amended complaint must bear the docket number

assigned this case and must be labeled “Fourth Amended Complaint”; plaintiff must file an

original and two copies of the fourth amended complaint; failure to file a fourth amended

complaint in accordance with this order will result in a recommendation that this action be

dismissed; and

3. The Clerk of the Court is directed to provide plaintiff with the court’s form

complaint for a § 1983 action. 

Accordingly, IT IS HEREBY RECOMMENDED that:

1. Plaintiff’s due process, defamation, slander, and libel claims be dismissed; and

2. Plaintiff’s April 27, 2005 motion for temporary restraining order and

preliminary injunction be denied. 

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

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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: May 27, 2005.

DAD:4

reed1822.amd4

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