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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

EUREKA DIVISON

KALVIN HARRIS,

Plaintiff,

v.

NIKHIL COOPER, et. al.,

Defendants.

Case No. 17-cv-0871-NJV (PR) 

ORDER OF SERVICE

Plaintiff, a state prisoner, has filed a pro se civil rights complaint under 42 U.S.C. § 1983. 

The court dismissed the original complaint with leave to amend and plaintiff has filed an amended 

complaint. (Docs. 5, 6.)

DISCUSSION

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 (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 
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upon which it rests.’”” Erickson v. Pardus, 551 U.S. 89, 93 (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, 550 U.S. 544, 555 (2007) (citations omitted). A complaint must 

proffer “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. The United 

States Supreme Court has recently explained the “plausible on its face” standard of Twombly: 

“While legal conclusions can provide the framework of a complaint, they must be supported by 

factual allegations. When there are well-pleaded factual allegations, a court should assume their 

veracity and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft 

v. Iqbal, 556 U.S. 662, 679 (2009). 

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). 

Legal Claims 

Plaintiff states that he was denied parole because he is Muslim and defendants conspired 

against him due to his religion and confiscated his religious materials.

A civil conspiracy is a combination of two or more persons who, by some concerted 

action, intend to accomplish some unlawful objective for the purpose of harming another which 

results in damage. Gilbrook v. City of Westminster, 177 F.3d 839, 856 (9th Cir. 1999). To prove a 

civil conspiracy, the plaintiff must show that the conspiring parties reached a unity of purpose or 

common design and understanding, or a meeting of the minds in an unlawful agreement. Id. To 

be liable, each participant in the conspiracy need not know the exact details of the plan, but each 

participant must at least share the common objective of the conspiracy. Id. A defendant’s 

knowledge of and participation in a conspiracy may be inferred from circumstantial evidence and 

from evidence of the defendant's actions. Id. at 856-57. 
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Conspiracy is not itself a constitutional tort under 42 U.S.C. § 1983. Lacey v. Maricopa 

County, 693 F.3d 896, 935 (9th Cir. 2012) (en banc). It does not enlarge the nature of the claims 

asserted by the plaintiff, as there must always be an underlying constitutional violation. Id. 

Conspiracy may, however, enlarge the pool of responsible defendants by demonstrating their 

causal connection to the violation; the fact of the conspiracy may make a party liable for the 

unconstitutional actions of the party with whom he has conspired. Id. Conspiracy in § 1983 

actions is usually alleged by plaintiffs to draw in private parties who would otherwise not be 

susceptible to a § 1983 action because of the state action doctrine, or to aid in proving claims 

against otherwise tenuously connected parties in a complex case. Id.

“The Equal Protection Clause of the Fourteenth Amendment commands that no State shall 

‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a 

direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne 

Living Center, 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)); 

Thornton v. City of St. Helens, 425 F.3d 1158, 1168 (9th Cir. 2005) (evidence of different 

treatment of unlike groups does not support an equal protection claim). 

In order to establish a free exercise violation, a prisoner must show a defendant burdened 

the practice of his religion without any justification reasonably related to legitimate penological 

interests. See Shakur v. Schriro, 514 F.3d 878, 883-84 (9th Cir. 2008). A prisoner is not required 

to objectively show that a central tenet of his faith is burdened by a prison regulation to raise a 

viable claim under the Free Exercise Clause. Id. at 884-85. Rather, the sincerity test of whether 

the prisoner’s belief is “sincerely held” and “rooted in religious belief” determines whether the 

Free Exercise Clause applies. Id. (finding district court impermissibly focused on whether 

consuming Halal meat is required of Muslims as a central tenet of Islam, rather than on whether 

plaintiff sincerely believed eating kosher meat is consistent with his faith). The prisoner must 

show that the religious practice at issue satisfies two criteria: (1) the proffered belief must be 

sincerely held and (2) the claim must be rooted in religious belief, not in purely secular 

philosophical concerns. Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994) (cited with approval in 

Shakur, 514 F.3d at 884).
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Section 3 of the Religious Land Use and Institutionalized Persons Act (RLUIPA), 

provides: “No government shall impose a substantial burden on the religious exercise of a person 

residing in or confined to an institution, as defined in section 1997 [which includes state prisons, 

state psychiatric hospitals, and local jails], even if the burden results from a rule of general 

applicability, unless the government demonstrates that imposition of the burden on that person (1) 

is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of 

furthering that compelling governmental interest.” 42 U.S.C. § 2000cc-1(a). The statute applies 

“in any case” in which “the substantial burden is imposed in a program or activity that receives 

Federal financial assistance.” 42 U.S.C. § 2000cc-1(b)(1).

“Within the prison context, a viable claim of First Amendment retaliation entails five basic 

elements: (1) an assertion that a state actor took some adverse action against an inmate (2) 

because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 

exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 

correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted). 

Accord Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (prisoner suing prison officials under § 

1983 for retaliation must allege that he was retaliated against for exercising his constitutional 

rights and that the retaliatory action did not advance legitimate penological goals, such as 

preserving institutional order and discipline).

The Board of Parole Hearings (“BPH”) granted plaintiff parole on June 6, 2014. On 

September 14, 2014, the governor reversed the grant. Plaintiff with the assistance of counsel filed 

a habeas petition in the Los Angeles County Superior Court on April 17, 2015. A Deputy 

Attorney General was assigned to the case and ordered to respond on June 19, 2015. On March 4, 

2016, the Los Angeles County Superior Court granted the habeas petition and ordered the BPH to 

release plaintiff unless the BPH determined that there was cause for rescission of parole. A 

rescission hearing was held on November 4, 2016, and plaintiff’s parole was rescinded. It is not 

clear if plaintiff is taking further action in state court.

Plaintiff argues that after the Deputy Attorney General was assigned, he and various prison 

officials conspired to falsely produce documents regarding plaintiff’s record and gang affiliation to 
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deny plaintiff parole because he is Muslim. Plaintiff also states that various prison documents 

were back dated to justify the denial of parole. 

Plaintiff specifically alleges that after the Deputy Attorney General was assigned the case, 

he requested plaintiff’s prison records and then defendants Vice and Patterson were responsible 

for a cell search where plaintiff’s religious materials were confiscated. Plaintiff states that a 

defendant stated, “We need to see if there’s anything in your Bible that we can use against you . . . 

Aren’t all you Muslim guys radicalized?” Plaintiff alleges the defendants conspired in these 

activities and it was in retaliation for his protected conduct and because he is Muslim. Liberally 

construed at the complaint stage, plaintiff has stated a claim against Vice and Patterson for 

conspiracy, retaliation and violations of the Equal Protection Clause, RLUIPA and a First 

Amendment free exercise claim.

Plaintiff has failed to state a claim against Deputy Attorney General Cooper. Plaintiff was 

informed that he needed to present plausible allegations that were more than conclusory 

statements. Plaintiff only presents conclusory allegations that Cooper was involved in a 

conspiracy and the exhibits he cites in his amended complaint in support of these allegations fail 

to demonstrate a conspiracy or this defendant’s culpability for the other claims. This defendant is 

dismissed from this action.

To the extent plaintiff seeks to challenge the rescission of his parole and seeks release from 

custody he must file a federal habeas petition after exhausting his state court remedies. To the 

extent plaintiff seeks money damages related to the parole rescission any such claim is dismissed. 

In order to recover damages for an allegedly unconstitutional conviction or imprisonment, or for 

other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a 

42 U.S.C. § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct 

appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such 

determination, or called into question by a federal court’s issuance of a writ of habeas corpus. 

Heck v. Humphrey, 512 U.S. 477, 486-487 (1994). 
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CONCLUSION

1. The clerk shall issue a summons and Magistrate Judge jurisdiction consent form and the 

United States Marshal shall serve, without prepayment of fees, the summons, Magistrate Judge 

jurisdiction consent form, copies of the amended complaint with attachments and copies of this 

order on defendants: Correctional Safety Officer Tony Vice and Institutional Gang Investigator 

Silvia Patterson, both at Correctional Training Facility in Soledad, CA. Defendant Cooper is 

DISMISSED from this action with prejudice.

2. In order to expedite the resolution of this case, the Court orders as follows:

a. No later than sixty days from the date of service, defendants shall file a motion 

for summary judgment or other dispositive motion. The motion shall be supported by adequate 

factual documentation and shall conform in all respects to Federal Rule of Civil Procedure 56, and 

shall include as exhibits all records and incident reports stemming from the events at issue. If 

defendants are of the opinion that this case cannot be resolved by summary judgment, they 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. At the time the dispositive motion is served, defendants shall also serve, on a 

separate paper, the appropriate notice or notices required by Rand v. Rowland, 154 F.3d 952, 953-

954 (9th Cir. 1998) (en banc), and Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 (9th Cir. 2003). 

See Woods v. Carey, 684 F.3d 934, 940-941 (9th Cir. 2012) (Rand and Wyatt notices must be 

given at the time motion for summary judgment or motion to dismiss for nonexhaustion is filed, 

not earlier); Rand at 960 (separate paper requirement). 

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

court and served upon defendants no later than thirty days from the date the motion was served 

upon him. 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).

If defendants file a motion for summary judgment claiming that plaintiff failed to exhaust 

his available administrative remedies as required by 42 U.S.C. § 1997e(a), plaintiff should take 
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note of the attached page headed "NOTICE -- WARNING (EXHAUSTION)," which is provided 

to him as required by Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 (9th Cir. 2003).

d. If defendants wishes to file a reply brief, they shall do so no later than fifteen 

days after the opposition is served upon them. 

e. 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. 

3. All communications by plaintiff with the Court must be served on defendants, or 

defendants’ counsel once counsel has been designated, by mailing a true copy of the document to 

defendants or defendants' counsel.

4. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. No 

further Court order under Federal Rule of Civil Procedure 30(a)(2) is required before the parties 

may conduct discovery.

5. It is plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court 

informed of any change of address by filing a separate paper with the clerk headed “Notice of 

Change of Address.” He also 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: November 1, 2017

________________________

NANDOR J. VADAS

United States Magistrate Judge
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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 Rule 56(e), 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. 

NOTICE -- WARNING (EXHAUSTION)

If defendants file a motion for summary judgment for failure to exhaust, they are seeking 

to have your case dismissed. If the motion is granted it will end your case.

You have the right to present any evidence you may have which tends to show that you did 

exhaust your administrative remedies. Such evidence may be in the form of declarations 

(statements signed under penalty of perjury) or authenticated documents, that is, documents 

accompanied by a declaration showing where they came from and why they are authentic, or other 

sworn papers, such as answers to interrogatories or depositions. 

If defendants file a motion for summary judgment for failure to exhaust and it is granted, 

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