United States District Court

For the Northern District of California

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

TRAVION MCGRAW,

Plaintiff, 

 v.

R. GROUNDS; J. ABOYTES; G.R.

SALAZAR; R. BINKELE; N.

WALKER; R. BURGH; S. HATTON;

T. LEE; M. VOONG,

Defendants.

/

No. C 16-7010 WHA (PR) 

ORDER OF SERVICE

INTRODUCTION

Plaintiff, a California prisoner at Pelican Bay State Prison, filed this civil rights case

under 42 U.S.C. 1983 against officials at Salinas Valley State Prison (“SVSP”), where plaintiff

was formerly housed. He is granted leave to proceed in forma pauperis in a separate order. For

the reasons discussed below, the complaint is ordered served upon defendants. 

ANALYSIS

A. STANDARD OF REVIEW

Federal courts must engage in a preliminary screening of cases in which prisoners seek

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

1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims

which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek

monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro

se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699
United States District Court

For the Northern District of California

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(9th Cir. 1990).

Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the

claim showing that the pleader is entitled to relief." "Specific facts are not necessary; the

statement need only '"give the defendant fair notice of what the . . . . claim is and the grounds

upon which it rests."'" Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted). 

Although in order to state a claim a complaint “does not need detailed factual allegations, . . . a

plaintiff's obligation to provide the 'grounds of his 'entitle[ment] to relief' requires more than

labels and conclusions, and a formulaic recitation of the elements of a cause of action will not

do. . . . Factual allegations must be enough to raise a right to relief above the speculative

level." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A

complaint must proffer "enough facts to state a claim for relief that is plausible on its face." Id.

at 1974. 

To state a claim under 42 U.S.C. 1983, a plaintiff must allege two essential elements: 

(1) that a right secured by the Constitution or laws of the United States was violated, and (2)

that the alleged deprivation was committed by a person acting under the color of state law. 

West v. Atkins, 487 U.S. 42, 48 (1988).

B. LEGAL CLAIMS

Plaintiff claims that defendant Aboytes searched his cell without a slip and accused him

of being involved in a riot. Aboytes issued him a “Rules Violation Report” that included a term

of five months in administrative segregation. Defendant Salazar conducted the disciplinary

hearing at which he told plaintiff to plead guilty to the charges of participating in a riot and

would not allow him to call a witness. Defendant Walker and Binkele reviewed the consequent

placement of plaintiff in administrative segregation and upheld it. Defendant Burgh extended

his administrative segregation stay. Defendant Hatton denied his administrative grievance

complaining about administrative segregation. At the final level of administrative review,

prison officials ordered plaintiff’s Rules Violations Report to be reissued and reheard because

of due process violations. At the rehearing plaintiff was found not guilty of violating prison
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For the Northern District of California

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rules and he was returned to ordinary housing. He spent approximately one year in

administrative segregation. 

Plaintiff then filed administrative grievances complaining about lost wages and his

transfer to another prison away from his family. Defendants Burgh, Hatton, Lee and Voong

denied grievances seeking request for transfer.

Plaintiff claims that there was no evidence that he participated in a riot, and that

defendants were retaliating against him for filing administrative grievances when he was at

Corcoran State Prison. When liberally construed, his complaint states cognizable claims against

defendants Aboytes, Hatton, Burgh, Walker, Binkele and Salazar for the violation of his right to

due process insofar as he was placed in segregation for a lengthy period without adequate

procedural protections or evidentiary support, and for a violation of his First Amendment rights

insofar as he was segregated in retaliation for filing administrative grievances. 

Plaintiff’s allegations against Defendants Burgh, Hatton, Lee and Voong for denying his

grievances regarding a transfer and lost wages do not state a cognizable claim for relief because

the denial of an administrative grievance does not implicate his constitutional rights. See

Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (there is no constitutional right to a prison

administrative appeal or grievance system). 

 The only allegation against defendant Grounds is that as the Warden of SVSP he is

“legally responsible” for the actions of the other prison officials who violated plaintiff’s

constitutional rights. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (there is no 

respondeat superior liability under Section 1983). 

CONCLUSION

For the reasons set out above, it is hereby ordered as follows:

1. The claims against defendants Grounds, Voong and Lee are DISMISSED. The claims

against defendants Hatton and Burgh are DISMISSED IN PART, as described above.

2. The clerk shall issue summons and the United States Marshal shall serve, without

prepayment of fees, a copy of the complaint with all attachments thereto, and a copy of this
United States District Court

For the Northern District of California

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order upon defendants J. Aboytes, G.R. Salazar, R. Binkele, N. Walker, R. Burgh, S.

Hatton, at Salinas Valley State Prison. A courtesy copy of the complaint with attachments

and this order shall also be mailed to the California Attorney General’s Office. 

2. Defendants shall file an answer in accordance with the Federal Rules of Civil

Procedure.

3. In order to expedite the resolution of this case:

a. No later than 91 days from the date this order is filed, defendants shall file a

motion for summary judgment or other dispositive motion. If defendants are of the opinion that

this case cannot be resolved by summary judgment, he shall so inform the court prior to the date

the summary judgment motion is due. All papers filed with the court shall be promptly served

on the plaintiff.

b. Plaintiff's opposition to the dispositive motion, if any, shall be filed with the

court and served upon defendant no later than 28 days from the date of service of the motion. 

Plaintiff must read the attached page headed “NOTICE -- WARNING,” which is provided to

him pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc), and

Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988).

c. Defendants shall file a reply brief no later than 14 days after the date of

service of the opposition.

d. The motion shall be deemed submitted as of the date the reply brief is due. 

No hearing will be held on the motion unless the court so orders at a later date. 

e. Along with his motion, defendants shall file proof that they served plaintiff

the Rand warning at the same time they served him with their motion. Failure to do so will

result in the summary dismissal of their motion. 

4. All communications by the plaintiff with the court must be served on defendant, or

defendant’s counsel once counsel has been designated, by mailing a true copy of the document

to defendant or defendant’s counsel.

5. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. 
United States District Court

For the Northern District of California

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No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16-1 is

required before the parties may conduct discovery.

6. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the court

informed of any change of address and must comply with the court's orders in a timely fashion. 

Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to

Federal Rule of Civil Procedure 41(b).

IT IS SO ORDERED.

Dated: May 2 , 2017. 

WILLIAM ALSUP

UNITED STATES DISTRICT JUDGE
United States District Court

For the Northern District of California

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NOTICE -- WARNING (SUMMARY JUDGMENT)

If defendants move for summary judgment, they are seeking to have your case

dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil

Procedure will, if granted, end your case.

Rule 56 tells you what you must do in order to oppose a motion for summary judgment.

Generally, summary judgment must be granted when there is no genuine issue of material

fact--that is, if there is no real dispute about any fact that would affect the result of your case,

the party who asked for summary judgment is entitled to judgment as a matter of law, which

will end your case. When a party you are suing makes a motion for summary judgment that is

properly supported by declarations (or other sworn testimony), you cannot simply rely on what

your complaint says. Instead, you must set out specific facts in declarations, depositions,

answers to interrogatories, or authenticated documents, as provided in [current Rule 56(c)], that

contradict the facts shown in the defendant's declarations and documents and show that there is

a genuine issue of material fact for trial. If you do not submit your own evidence in opposition,

summary judgment, if appropriate, may be entered against you. If summary judgment is

granted, your case will be dismissed and there will be no trial.