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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

RAFAEL SALAS,

Plaintiff,

v.

NICHOLS, et al.,

Defendants.

Case No.17-cv-00663-JST 

ORDER SCREENING COMPLAINT

INTRODUCTION

Plaintiff, an inmate at Pelican Bay State Prison (“PBSP”), filed this pro se civil rights 

action pursuant to 42 U.S.C. § 1983. Plaintiff has been granted leave to proceed in forma pauperis

in a separate order. His complaint (Dkt. No. 1) is now before the Court for review under 28 

U.S.C. § 1915A.

DISCUSSION

A. Standard of Review

A federal court must engage in a preliminary screening of any case in which a prisoner 

seeks redress from a governmental entity, or from an officer or an 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. See 28 U.S.C. 

§ 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.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not 
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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, 551 U.S. 89, 93 (2007) (citations omitted). 

“[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. 

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a 

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

violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 

42, 48 (1988).

B. Complaint

In reviewing the complaint’s factual allegations, the Court notes that although Plaintiff has 

only alleged six causes of actions, his complaint is 59 pages long with 227 pages of exhibits, and 

the complaint details numerous allegedly wrongful acts, some of which are unrelated to the causes 

of actions, committed by Defendants between November 2013 and April 2016. The Court simply 

does not have the resources to scour the complaint and exhibits and organize the allegations 

contained therein in order to perform its screening duty under § 1915A and identify all cognizable 

claims.1 Accordingly, the Court will presume that Plaintiff only seeks to bring the six legal claims 

which he has identified, and the Court will only review the factual allegations which support his 

legal claims.2

 

1

This is not Plaintiff’s first foray into federal court. See Salas v. Gomez, Case No. 14-cv-1676-

JST (filed Apr. 11, 2014); Salas v. Ducart, Case No. 14-cv-2938-YGR. Case number 14-cv-1676-

JST settled on January 27, 2017, and the Court dismissed the action at the parties’ request on 

February 6, 2017. Case No. 14-cv-1676-JST, ECF No. 109. Plaintiff filed this action three days 

later. 

2

For example, the Court does not address Plaintiff’s allegations that Officer Osborne and Warden 

Ducart refused to provide Plaintiff a copy of the CDCR’s Office of Internal Affairs’s (“OIA”)

response to Plaintiff’s letter notifying the OIA that Plaintiff was suffering retaliatory actions and 

that there was an ongoing conspiracy to violate Plaintiff’s First Amendment rights, Dkt. No. 1 at 

33 and 36; that he did not have meaningful access to law library resources while housed in 

administrative segregation, id. at 42; or that the failure to grant him priority legal access resulted in 
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The Court now turns to the allegations in Plaintiff’s complaint which, in sum, alleges that 

prison officials have been continuously harassing him in retaliation for his use of the prison 

grievance system.3

November 2013 – December 2013: Truvino Grievance and Related Cell Searches. On 

November 6, 2013, Plaintiff and other inmates filed a group appeal against Correctional Officer 

Truvino (who is not a named defendant) for attempting to incite racial tensions between Black and 

Hispanic inmates. Dkt. No. 1 at 12. 

Defendants retaliated against Plaintiff for filing for this group appeal in the following 

manner. 

On December 4, 2013, named defendants Officers Nichols and Carraway trashed 

Plaintiff’s cell under the guise of a cell search. Dkt. No. 1 at 13. Twenty minutes after this cell 

search was completed, John Does 1–15 rushed into Plaintiff’s cell section and trashed all the cells 

in the section under the guise of a mass cell search. Id. 

On December 23, 2013, Plaintiff filed grievance PBSP-B-13-04123 alleging that the cell 

searches and trashing of cells was in retaliation for his group appeal against Officer Truvino. Dkt. 

No. 1 at 14. Plaintiff was interviewed by named defendant Officer Barneburg with respect to this 

 

his objections to a magistrate judge’s findings and recommendations being overlooked and denied, 

id.; or that the security/welfare checks caused sleep deprivation and health issues, id. at 43, 

because these allegations are unrelated to the identified legal claims. 

If Plaintiff wishes to bring additional legal claims based upon the other factual allegations 

set forth in his complaint, he may file an amended complaint. However, any amended complaint 

must comply with Rule 8 of the Federal Rules of Civil Procedure which requires the pleader to set 

forth his averments in a simple, concise, and direct manner, Fed. R. Civ. P. 8(a); and must comply 

with Rule 20 of the Federal Rules of Civil Procedure which provides claims and defendants may 

be joined only if the claims arise out of the same transactions or series, and if “any question of law 

or fact common to all defendants will arise in the action,” Fed. R. Civ. P. 20(a)(2).

3

The Court notes that, throughout the complaint, Plaintiff repeatedly alleges that certain actions 

violate prison regulations. However, violations of prison regulations cannot be remedied under 

§ 1983 unless they also violate a federal constitutional or statutory right. See Davis v. Scherer, 

468 U.S. 183, 192 (1984). Section 1983 provides no redress for prison officials’ mere violation of 

state prison regulations. See Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009) (section 

1983 claims must be premised on violation of federal constitutional right); Lovell v. Poway 

Unified Sch. Dist., 90 F.3d 367, 370–71 (9th Cir. 1996) (federal and state law claims should not be 

conflated; to the extent the violation of a state law amounts to a deprivation of a state-created 

interest that reaches beyond that guaranteed by the federal Constitution, section 1983 offers no 

redress).
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grievance. Id. at 15. Officer Barneburg promised that correctional officers would not retaliate 

against Plaintiff and other prisoners for filing grievances. Id. at 15. In return, Plaintiff withdrew 

his grievance with the understanding that Plaintiff could re-filed his grievance if there were 

retaliatory acts in the future. Id. at 15. 

July 2014 – September 2014: Grievances Regarding Law Library Restroom Policy. In 

July 2015, Plaintiff secured a job assignment as a computer clerk in B-Yard Education, which is 

located near the Law Library. Dkt. No. 1 at 15. Officer Forkner, who is stationed at the Law 

Library, was upset with Plaintiff’s new job assignment and therefore instituted a new and arbitrary 

policy that inmates using the law library could only use the restroom once or twice a day. Id. at 

15–16. Plaintiff filed a habeas action challenging Officer Forkner’s arbitrary policy. Id. at 15. 

On August 5, 2014, Officer Forkner also denied Plaintiff’s request for legal forms. Id. at 16. 

In early August 2014, Plaintiff filed a grievance and a Form 22 regarding Officer Forkner’s 

restroom policy. 

In grievance PBSP-B-14-02281, Plaintiff alleged that Officer Forkner had retaliated 

against him for Plaintiff’s efforts to seek redress of grievances; that Officer Forkner had interfered 

with Plaintiff’s access to the courts; that Officer Forkner had incited racial tensions; and that 

Officer Forkner had used improper language when dealing with prisoners. Id. at 16–17. This 

grievance was ultimately denied at all levels. Dkt. No. 1 at 35.

In his Form 22, Plaintiff informed Officer Barneburg that Officer Forkner was retaliating 

against him for filing a grievance challenging the restroom policy. Id. at 16. Named defendant 

Officer Speaker responded to the Form 22, and stated that the restroom policy was prompted by 

complaints from correctional staff in B-Yard Education that inmates were using the restroom 

without supervision. Id. at 17. Plaintiff contacted B-Yard Education staff who all denied making 

such complaints. Id. On August 21, 2014, as Plaintiff was carrying out his assigned responsibility 

of emptying out wastebaskets, Officer Speaker accused Plaintiff of violating the restroom policy 

and threatened to issue an RVR. Id. at 18. In response, Plaintiff stated that he would file a 

grievance against Officer Speaker. Officer Speaker escorted Plaintiff back to his cell and had him 

confined to quarters. Id. at 18. 
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In response to this incident, Plaintiff sent two Form 22s to named defendant Captain 

Melton, and filed a group grievance against Officer Speaker, PBSP-B-14-02545. The first Form 

22 alleged that Officer Forkner was retaliating against him; and the second Form 22 alleged that 

Officer Speaker was retaliating against him for his complaints regarding Officer Forkner. Id. at 

18. 

The group grievance against Officer Speaker alleged that Officer Speaker had falsely 

claimed that B-Yard Education staff complained about inmates using the restroom; had falsely 

accused Plaintiff of violating the restroom policy; had compromised the integrity of a staff 

complaint investigation; and had retaliated against him for filing a grievance against Forkner. Dkt. 

No. 1 at 19. Named defendant Officer Higgerson interviewed Plaintiff regarding this grievance. 

Officer Higgerson advised Plaintiff to seek a medical chrono for bathroom use in order to 

circumvent the restroom policy. Officer Higgerson denied Plaintiff’s grievance, relying on the 

false evidence that B-Yard Education staff had made complaints about inmates using the restroom. 

Id. at 20. 

At that time, Plaintiff was housed in PBSP B-Yard, 7-Block, A-section. Due to a series of 

retaliatory events which are described below, Plaintiff was transferred to administrative 

segregation housing. On January 14, 2015, Officer Bramucci informed Plaintiff that because 

Plaintiff was housed in segregated housing, Plaintiff had been removed from the complaint and 

named defendant Chief Deputy Warden Bradbury had processed the staff complaint as a program 

issue instead. Dkt. No. 1 at 39. In response, Plaintiff alleged that Officer Bramucci had violated 

Plaintiff’s First Amendment rights when he excluded Plaintiff from his own grievance. Id. 

Named defendants Officers Townsend, Osborne, and Ducart affirmed Officer Bramucci’s decision 

to remove Plaintiff from the grievance. Id. Plaintiff appealed this decision, but Officers 

Townsend and Bramucci cancelled Plaintiff’s appeal. Id. at 40. Plaintiff appealed the cancellation 

of his appeal as an abuse of discretion. Id. Officer Osborne affirmed the cancellation of the 

appeal.

September 2014 Cell Search. On September 12, 2014, Officers Barneburg, Lacy, Schaad, 

Williams, and Loheim, all named defendants, searched Plaintiff’s cell. Officer Schaad initially 
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declared Plaintiff’s cell contraband free. Dkt. No. 1 at 20–21. Then Plaintiff witnessed Officer 

Barneburg enter his cell with a razor blade and exit without the razor blade. Id. Shortly thereafter, 

Officer Schaad informed Plaintiff that a razor blade had been found in his cell. Id. The cell search 

also resulted in the disappearance of Plaintiff’s LAPD Murder Investigation book files which were 

relevant to Plaintiff’s criminal habeas appeal. Id. at 24. After the cell search, not all of Plaintiff’s 

property was returned to him, with named defendant Officer Harlen disposing of some of the

property disposed. Pursuant to the cell search and the discovery of the knife, Plaintiff was 

reassigned to an administrative segregation unit (“ASU”), which was a more punitive level of 

housing than his prior housing. Id. at 25.

Grievances and Form 22s Related to September 2014 Cell Search. Plaintiff filed numerous 

grievances and Form 22s with respect to this cell search. 

Plaintiff filed Form 22s seeking to have the razor blade preserved; and requesting 

photographs of the evidence, the names of the officers involved in the search, and the cell search 

slip. Plaintiff never received a photograph of the evidence despite contacting Officer Barneburg, 

Officer Lacy, and named defendant Officer Lawry. Dkt. No. 1 at 25–26. Officer Barneburg 

informed Plaintiff that he would receive a copy of the photographic evidence if such photographic 

evidence were used against him. Id. at 25. Officer Lawry never responded. Id. at 26.

On October 13, 2014, Plaintiff filed grievance PBSP-S-14-02922, alleging that Defendants 

had retaliated against him for filing a staff complaint by disposing of Plaintiff’s legal and personal 

property. Dkt. No. 1 at 28. This staff complaint was rejected on the grounds that Plaintiff must 

first exhaust the Form 22 process. Id. This instruction contradicted Officer Lawry’s earlier 

instruction that the Form 22 process should not be used when filing a staff complaint. Id. Plaintiff 

followed the instructions but never received a response. Id. 

Plaintiff filed a staff complaint alleging that Officers Barneburg, Barneburg, Lacy, Schaad, 

Williams, Loheim retaliated against him for submitting two staff complaints against Officers 

Forkner and Speaker, and that Officers Hernandez and Harlen’s disposal of Plaintiff’s allowable 

property was also a retaliatory act. Dkt. No. 1 at 31. Officer Higgerson was assigned to 

investigate this staff complaint, but failed to take the matter seriously and relied on speculation 
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and hypotheticals in resolving the complaint in favor of the correctional officials. Id. at 31–32. 

The staff complaint was ultimately denied at all levels of review. Id. at 36. 

On November 9, 2014, Plaintiff sent a Form 22 to Officer Barneburg notifying him that 

Officers Schaad, Loheim, and Williams had mixed up his personal property and asking why 

Officer Barneburg, in his supervisory capacity, had not taken precautionary measures to prevent 

loss of Plaintiff’s property. Dkt. No. 1 at 34. Officer Barneburg responded that despite his 

supervisory position, he did not oversee every action as it occurred.

RVR Related to September 2014 Cell Search. Plaintiff was issued an RVR for possession 

of the knife found in the September cell search. On September 21, 2014, Plaintiff was assigned an 

investigative employee, Officer Bellinger, who is not a named defendant. Plaintiff prepared a list 

of questions for Officer Bellinger to ask Officers Schaad, Barneburg, and Lacy; and to ask Justin 

Canon, Plaintiff’s cellmate at the time of the search. Plaintiff complains that Officer Bellinger 

refused to interview inmate Cannon. On October 7, 2014, Plaintiff asked Officer Bellinger to ask 

additional questions of Officers Schaad, Barneburg, and Lacy, and of inmates Canon and 

Velasquez; and Plaintiff also posed additional evidentiary requests and other questions. Dkt. No. 

1 at 28. Plaintiff complains that Officer Bellinger did not act on these requests. Id.

Plaintiff requested that the hearing on the RVR be postponed because Officer Bellinger 

had failed to conduct a full investigation into the matter. Dkt. No. 1 at 31. Plaintiff then sent 

defendant Officer Osborne a request for staff assistance (“SA”) to present evidence relevant to the 

RVR, arguing that his placement in ASU rendered him unable to collect and present evidence. Id. 

Officer Osborne failed to respond, and Plaintiff re-submitted the request to Officer Melton, who 

denied the request. Id. at 31. This request for staff assistance was denied at all levels of review. 

Id. at 37.

On November 6, 2014, a disciplinary hearing was convened with named defendant Officer 

Buchanon serving as the Senior Hearing Officer. Dkt. No. 1 at 33. Plaintiff alleges that Officer 

Buchanon prevented Plaintiff from preparing a complete defense and from offering exculpatory 

evidence when he denied Plaintiff’s requests that the hearing be postponed until a SA was 

appointed; that prisoners Hernandez, Canon, and Velasquez be called as witnesses; and that 
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Plaintiff be allowed to examine the photographic evidence of the blade. Id. Officer Buchanon 

found Plaintiff guilty of possessing contraband in violation of prison regulations, and imposed 

several penalties, including credit forfeiture, temporary loss of entertainment appliances 

privileges, and housing in a segregated unit. Id.

Plaintiff requested the dismissal of his RVR. Warden Ducart conducted the second level 

review of Plaintiff’s request and denied Plaintiff’s request. Dkt. No. 1 at 39. Plaintiff alleges that 

Officer Osborne presented this second-level denial and Officer Osborne failed to take into account 

Officer Buchanon’s false promise to consider inmate Canon’s testimony, and the fact that Plaintiff 

was unable to gather evidence for his defense. 

Request for Transfer. On April 3, 2016, Plaintiff submitted a Form 22 to named defendant 

Officer Strutz-Alexander requesting that he be transferred to a correctional institute closer to his 

family’s home. Id. at 45. On April 6, 2016, the Unit Classification Committee, which was 

comprised of Officer Strutz-Alexander, named defendant Officer Wilcox, and another correctional 

official, denied Plaintiff’s request for transfer on the grounds that Plaintiff was appropriately 

housed at PBSP, and that there was no available bed space in another Level 4 180-degree design 

housing unit prison. However, Plaintiff was informed by Justin Albergate, a White inmate that 

Albergate had been offered the option to transfer to either Kern Valley State Prison and Salinas 

Valley State Prison, which are both 180 prisons, and informed that there was available bed space 

in these facilities. Id. at 46. Plaintiff unsuccessfully appealed the denial of his transfer, with the 

denial being affirmed by Officers Townsend, Olson, Ducart, and Osborne. Id. at 46–47.

C. Legal Claims

1. First Cause of Action: Retaliation

The complaint alleges that defendants Nichols, Carraway, Lamar, Forkner, Speaker, 

Schaad, Williams, Loheim, Hernandez, Stout, Lawry, Harlen, Buchanon, Melton, Osborne, 

Bradbury, and Ducart retaliated against him for filing a staff complaint, in violation of his First 

Amendment right when they harassed him; interfered with his ability to use the restroom; 

confiscated and destroyed his personal property; terminated his prison employment that paid 

wages and had favorable point deduction; placed him in punitive segregated housing and isolated 
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confinement; falsified evidence that formed the basis of a later disciplinary charge; interfered in a 

staff complaint investigation by providing false evidence; subjected him to emotional and mental 

abuse; and gave him an unfavorable classification score. Dkt. No. 1 at 49. The complaint also 

alleges that Officers Barneburg, Higgerson, Stout, Lacy, Lawry, Buchanon, Melton, Osborne, 

Bradbury, Ducart, and Beard were aware of their subordinates’ misconduct, but did not prevent 

their subordinates from engaging in the allegedly unconstitutional behavior. In doing so, Officer 

Barneburg, Higgerson, Lacy, Lawry, Harlen, Melton, Bradbury, Ducart, and Beard implemented a 

practice that repudiated Plaintiff’s constitutional rights. Id.

“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). 

Liberally construed, the following allegations state a cognizable First Amendment retaliation 

claim: Officers Nichols and Carraway searched Plaintiff’s cell and trashed his property in 

retaliation for his grievance against Officer Truvino; Officer Forkner imposed an arbitrary 

bathroom policy in retaliation for Plaintiff’s use of the prison grievance system; Officer Speaker 

falsely accused Plaintiff of violating prison regulations in retaliation for Plaintiff filing a complaint 

about Officer Forkner; Officers Schaad, Williams, and Loheim conducted a search of Plaintiff’s 

cell in retaliation for his grievances against Officers Forkner and Speaker; and Officers Hernandez 

and Harlen deliberately disposed of Plaintiff’s property in retaliation for his grievances against 

Officers Forkner and Speaker. However, the claims regarding Officers Nichols and Carraway 

arise out of a different series of transactions, namely Plaintiff’s grievance against Officer Truvino, 

while the other claims arise out of Officer Forkner’s bathroom policy, Plaintiff’s related complaint 

against Officer Forkner, and the resulting acts of harassment and retaliation (Officer Speaker’s 

false report; the falsified RVR; and the related grievances). Accordingly, Plaintiff may not join 

Officers Nichols and Carraway as defendants in this action. Fed. R. Civ. P. 20(b) (persons may be 

joined in one action as defendants if the right to relief arises out of the same transaction, 
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occurrence, or series of transactions or occurrences). The claims against Officers Nichols and 

Carraway are DISMISSED without prejudice to Plaintiff filing these claims in a separate action.

The Court also dismisses the First Amendment retaliation claims against Officers Lamar, 

Stout, Lawry, Buchanon, Melton, Osborne, Bradbury, Ducart, Barneburg, and Higgerson. These 

defendants’ involvement in the alleged constitutional violation is via their participation in the 

administrative grievance process (Lawry, Buchanon, Melton, Osborne, Bradbury, Ducart, 

Barneburg, and Higgerson), or in their capacity as supervisors of other defendants who directly 

participated in the alleged constitutional violation (Lamar, Stout). Plaintiff argues that Officers 

Lawry, Buchanon, Melton, Osborne, Bradbury, Ducart, Barneburg, and Higgerson retaliated 

against him for exercising his First Amendment rights by denying his grievances; and by 

implementing a practice of denying Plaintiff’s constitutional rights by denying these grievances. 

He further argues that Officers Lamar and Stout bear § 1983 liability because they are either 

responsible for “the supervision of subordinate officers” who committed constitutional violations 

or they are responsible for the “well being of prisoners.” See, e.g., Dkt. No. 1 at 6–8. 

These allegations fail to state cognizable § 1983 claims for the following reasons. The 

prison grievance procedure does not confer any substantive rights upon inmates. Mann v. Adams, 

855 F.2d 639, 640 (9th Cir. 1988) (inmates have “no legitimate claim of entitlement to a grievance 

procedure”); Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (alleged constitutional 

violation in the processing of inmate’s appeals insufficient to state a claim). Generally, actions in 

reviewing and denying inmate appeals cannot serve as a basis for liability under § 1983. Ramirez, 

334 F.3d at 860. In addition, Plaintiff’s conclusory allegation that the denial of the grievances 

implemented a practice of denying Plaintiff’s constitutional rights is also insufficient to state a 

§ 1983 claim. The complaint refers to two separate incidents which triggered rounds of grievances 

and Form 22s filed by Plaintiff: the June 2014 restroom policy and the September 2014 cell 

search. It is unreasonable to infer that these two incidents, and the related grievances and Form 

22s, constitute a practice of denying Plaintiff’s constitutional rights. Finally, Plaintiff’s grievances 

only placed these particular defendants on notice regarding alleged past constitutional violations, 

and not ongoing constitutional violations. The alleged violations — the June 2014 restroom 
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policy and the September 2014 cell search — are separate incidents involving different 

correctional officials, and were not continuing at the time each grievance was filed. Accordingly, 

to the extent that Plaintiff alleges that Officers Lawry, Buchanon, Melton, Osborne, Bradbury, 

Ducart, Barneburg, and Higgerson violated his constitutional rights by participating in the prison 

grievance procedure, these allegations fail to state a § 1983 claim and are DISMISSED with 

prejudice. 

Plaintiff’s claim that Officers Lamar and Stout are liable in their supervisory capacity fails 

to state § 1983 liability because there is no respondeat superior liability under § 1983. See Taylor 

v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). A supervisor may be liable for a subordinate’s 

actions where the supervisory defendants failed to properly train or supervise personnel resulting 

in the alleged deprivation, Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 680 

(9th Cir. 1984); the alleged deprivation resulted from custom or policy for which each of the 

supervisory defendants was responsible, see id.; or each of the supervisory defendants knew of the 

alleged misconduct and failed to act to prevent future misconduct, Taylor, 880 F.2d at 1045. 

However, there is no allegation of failure to train or supervise, and, as discussed above, it would 

be unreasonable to assume from the allegations set forth in the complaint that there was a custom 

or policy of violating Plaintiff’s constitutional rights. Because it appears possible that Plaintiff 

may be able to correct this deficiency, the Court will dismiss this First Amendment retaliation 

claim against Officers Lamar and Stout with leave to amend. If Plaintiff chooses to amend his 

complaint and re-plead this cause of action, he must proffer enough facts to state a plausible claim 

that Officers Lamar and Stout failed to supervise their subordinates, and that this was the 

proximate cause of the alleged retaliation in violation of the First Amendment. 

2. Second Cause of Action: Ninth Amendment and Fourteenth 

Amendment Right to be from Governmental Interference to ParentChild Relationship

Plaintiff alleges that Officers Strutz-Alexander, Wilcox, Townsend, Olson, Ducart, and 

Osborne violated his Ninth and Fourteenth Amendment right to be free from governmental 

interference with his parent-child relationship when they refused to transfer him to a prison closer 
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to his children’s homes. Plaintiff further alleges that the refusal to transfer him was racially 

discriminatory because prison officials offered a white inmate the transfer options that Petitioner 

was denied. Because the Ninth Amendment does not “independently secur[e] any constitutional 

rights for purposes of making out a constitutional violation,” San Diego Cnty. Gun Rights Comm. 

v. Reno, 98 F.3d 1121, 1125 (9th Cir. 1996) (internal citations omitted), the Court construes this 

claim as a Fourteenth Amendment claim. 

Plaintiff’s allegations against Officers Townsend, Olson, Ducart, and Osborne with respect 

to their denial of Plaintiff’s transfer request are DISMISSED with prejudice because their 

involvement in the alleged constitutional violation is via their participation in the administrative 

grievance process. Actions in reviewing and denying inmate appeals cannot serve as a basis for 

liability under § 1983. Ramirez, 334 F.3d at 860. 

The Ninth Circuit has recognized that a parent has a “fundamental liberty interest” in “the 

companionship and society of his or her child” and that “[t]he state’s interference with that liberty 

interest without due process of law is remediable under [42 U.S.C. § ]1983.” Kelson v. City of 

Springfield, 767 F.2d 651, 654–55 (9th Cir.1985) (citing Santosky v. Kramer, 455 U.S. 745, 753 

(1982)). However, prisoners have no constitutional right to incarceration in a particular 

institution, see Olim v. Wakinekona, 461 U.S. 238, 244–48 (1983); Meachum v. Fano, 427 U.S. 

215, 224 (1976), and a prisoner’s liberty interests are sufficiently extinguished by his conviction 

that the state may generally confine or transfer him to any of its institutions, to prisons in another 

state or to federal prisons, without offending the Constitution. See Rizzo v. Dawson, 778 F.2d 

527, 530 (9th Cir. 1985) (citing Meachum, 427 U.S. at 225) (intrastate prison transfer does not 

implicate Due Process Clause), and Olim, 461 U.S. at 244–48 (interstate prison transfer does not

implicate Due Process Clause)). Accordingly, the Court finds that Plaintiff’s allegation that 

Officers Strutz-Alexander and Wilcox violated the Due Process Clause when they refused to 

transfer him to a correctional institute closer to his family fails to state a cognizable § 1983 claim. 

This claim is therefore DISMISSED with prejudice.

“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 
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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)). A 

plaintiff alleging denial of equal protection under 42 U.S.C. § 1983 based on race or other suspect 

classification must plead intentional unlawful discrimination or allege facts that are at least 

susceptible of an inference of discriminatory intent. Monteiro v. Tempe Union High School Dist., 

158 F.3d 1022, 1026 (9th Cir. 1998). To state a claim for relief, the plaintiff must allege that the 

defendant state actor acted at least in part because of plaintiff’s membership in a protected class. 

See Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013). A claim of racial discrimination 

under the Equal Protection Clause requires demonstration of discriminatory intent. Washington v. 

Davis, 426 U.S. 229, 239-40 (1976). Plaintiff has not pled any facts indicating that the refusal to 

transfer him was motivated by discriminatory intent. Because it appears possible that Plaintiff 

may be able to correct this deficiency, the Court will dismiss this equal protection claim against 

Officers Strutz-Alexander and Wilcox with leave to amend. If Plaintiff chooses to amend his 

complaint and re-plead this cause of action, he must proffer enough facts to state a plausible claim 

that Officers Strutz-Alexander and Wilcox’s denial of Plaintiff’s transfer request was motivated by 

discriminatory intent. 

3. Third Cause of Action: Fourteenth Amendment Right to Call 

Witnesses

Plaintiff alleges that Officer Buchanon’s failure to call inmate Canon as a witness at his 

RVR hearing violated his Fourteenth Amendment right to call witnesses. He alleges that Canon 

would have provided exculpatory testimony and photographic evidence that would prove that 

Plaintiff had been falsely accused of the RVR. The Court finds that Plaintiff’s allegation states a 

cognizable due process claim against Officer Buchanon. The Supreme Court has recognized that 

there are five procedural protections required by the federal constitutional guarantee of due 

process for inmates facing disciplinary proceedings: (1) adequate written notice of the charges, 

(2) receipt of the written notice at least twenty-four hours before the hearing, (3) ability to present 

documentary evidence and call witnesses unless doing so will be “unduly hazardous to 

institutional safety or correctional goals,” (4) the factfinder must make a written statement of the 
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evidence relied upon and the reasons behind the disciplinary action, and (5) assistance from a 

fellow inmate or staff member if the inmate is illiterate or the issues are complex. See Wolff v. 

McDonnell, 418 U.S. 539, 566–70 (1974).

4. Fourth Cause of Action: Fourteenth Amendment Right to Staff 

Assistance

Plaintiff alleges that the failure of Officers Melton, Osborne, Buchanon, and Ducart to 

provide him with the requested staff assistance violated the Fourteenth Amendment. This 

allegation fails to state a cognizable due process claim. In Wolff, the Supreme Court held that 

“[p]rison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of 

rights due a defendant in such proceedings does not apply.” Wolff, 418 U.S. at 556. Due process 

requires the grant of assistance from a fellow inmate or staff member if the inmate is illiterate or 

the issues are complex. Id. at 566–70. Plaintiff acknowledges that he is literate, but claims that 

the issues are complex. Dkt. No. 1-2 at 73 and Dkt. No. 1-3 at 1. Contrary to Plaintiff’s 

allegation, the issues in Plaintiff’s RVR — whether Plaintiff possessed the weapon or whether the 

weapon was planted — are not complex. Plaintiff’s allegations that he was “disabled” due to his 

segregated housing; that his housing prevented him from thoroughly investigating all issues; and 

that the issues involve confidential communications regarding staff misconduct did not render the 

issues complex. Accordingly, this claim is DISMISSED with prejudice.

5. Fifth Cause of Action: Fourteenth Amendment Right to Access the 

Courts with Hindrance or Interference

Plaintiff alleges that Officers Lamar, Forkner, Speaker, Schaad, Williams, Loheim, 

Hernandez, Lacy, Barneburg, Higgerson, Stout, Lawry, Harlen, Osborne, Bradbury, Ducart, 

Townsend, Bramucci and Beard hindered his access to the courts by fabricating reports to cover 

up misconduct; harassing him; preventing him from exhausting his claims; and denying him a 

staff investigator, in violation of the Fourteenth Amendment.4 Plaintiff further alleges that

 

4

Plaintiff also brings this claim against Officers Nichols and Carraway. However, as discussed 

above, Officers Nichols and Carraway have been dismissed from this action without prejudice to 

re-filing against them in a separate action.
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Officers Barneburg, Higgerson, Stout, Lacy, Lawry, Buchanon, Melton, Osborne, Bradbury, 

Townsend, Bramucci, Ducart and Beard were aware of the unconstitutional actions but failed to 

take correct action; and that these defendants implemented a practice that repudiated Plaintiff’s 

constitutional rights. 

Prisoners have a constitutional right of access to the courts.5 See Lewis v. Casey, 518 U.S. 

343, 350 (1996), which extends to established prison grievance procedures, see Bradley v. Hall, 64 

F.3d 1276, 1279 (9th Cir. 1995), abrogated on other grounds by Shaw v. Murphy, 532 U.S. 223 

(2001). This right to access the courts includes the right to litigate without interference. Silva v. 

Di Vittorio, 658 F.3d 1090, 1102 (9th Cir. 2011), overruled on other grounds as stated by Richey 

v. Dahne, 807 F.3d 1202, 1209 n.6 (9th Cir. 2015). It is unclear how the alleged false reports and 

harassment by Officers Forkner, Speaker, Schaad, Williams, Loheim, Hernandez, Lacy, 

Barneburg, and Harlen prevented Plaintiff from filing grievances. For example, Plaintiff alleges 

that Officers Barneburg, Lacy, Schaad, Williams, and Loheim harassed him by searching his cell; 

that Officer Barneburg planted a knife in his cell; and that Officers Hernandez and Harlen 

harassed him by deliberately disposing of his property. These actions are arguably retaliatory acts 

to deter him from accessing the prison grievance system, but nothing in the complaint indicates 

that these actions interfered with the grievances he had pending at the time of the false report was 

issued or at the time the harassment took place. The allegations of false reports and harassment 

state a First Amendment claim for retaliation (Plaintiff’s first cause of action), and not a claim for 

interference with the right to access the courts. Accordingly, the Court construes Plaintiff’s claim 

that Officers Forkner, Speaker, Schaad, Williams, Loheim, Hernandez, Lacy, Barneburg, and 

Harlen violated Plaintiff’s Fourteenth Amendment right to access the courts by harassing him and 

filing false reports as a First Amendment retaliation claim. The Court has already found above 

that Plaintiff has stated a cognizable First Amendment retaliation claim against Officers Forkner, 

 

5

The constitutional source of the right of access to the courts is not settled. See Christopher v. 

Harbury, 536 U.S. 403, 413–14 & 415 n.12 (2002); Lewis v. Casey, 518 U.S. 343, 366–67 (1996) 

(Thomas, J., concurring). Supreme Court decisions have grounded the right in the Article IV 

Privileges and Immunities Clause, the First Amendment Petition Clause, the Fifth Amendment 

Due Process Clause, and the Fourteenth Amendment Equal Protection and Due Process Clauses. 

Christopher, 536 U.S. at 415 n.12 (citing cases). 
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Speaker, Schaad, Williams, Loheim, Hernandez, and Harlen, and now finds that Plaintiff has also 

stated a cognizable First Amendment retaliation claim against Officers Barneburg and Lacy.

However, Plaintiff’s allegations that Officers Lamar, Higgerson, Stout, Lawry, Osborne, 

Bradbury, Ducart, Townsend, Bramucci, Beard, Barneburg, Buchanon, and Melton violated his 

Fourteenth Amendment right to access the courts without interference are all predicated either on 

these particular defendants’ involvement in reviewing and denying his grievances (Officers 

Higgerson, Lawry, Osborne, Bradbury, Ducart, Townsend, Bramucci, Beard, Barneburg, 

Buchanon, and Melton), or predicated on their being responsible for “the supervision of 

subordinate officers” or the “well being of prisoners,” (Officers Lamar and Stout), see, e.g., Dkt. 

No. 1 at 6–8. As discussed supra in Section, such allegations fail to state cognizable § 1983 

claims. Actions in reviewing and denying inmate appeals cannot serve as a basis for liability 

under § 1983. Ramirez, 334 F.3d at 860. Plaintiff’s conclusory allegation that the denial of 

Plaintiff’s grievances related to two separate incidents constitute a practice of denying Plaintiff’s 

constitutional rights, where the incidents occurred at different times and involve different 

defendants, is insufficient to state a § 1983 claim. Plaintiff’s claim that Officers Lamar and Stout

are liable in their supervisory capacity fails to state § 1983 liability because there is no respondeat 

superior liability under § 1983. See Taylor, 880 F.2d at 1045. There is also no allegation of 

failure to train or supervise, and no reasonable inference that these particular defendants had a 

custom or policy of violating Plaintiff’s constitutional rights. Finally, Plaintiff’s grievances only 

placed Officers Higgerson, Lawry, Osborne, Bradbury, Ducart, Townsend, Bramucci, Beard, 

Barneburg, Buchanon, and Melton on notice regarding alleged past constitutional violations, and 

not on notice regarding ongoing constitutional violations. Accordingly, to the extent that Plaintiff 

alleges that Officers Higgerson, Lawry, Osborne, Bradbury, Ducart, Townsend, Bramucci, and 

Beard violated his constitutional rights by participating in the prison grievance procedure, these 

allegations fail to state a § 1983 claim and are DISMISSED with prejudice. However, because it 

appears possible that Plaintiff may be able to correct the deficiency in his Fourteenth Amendment 

claim against Officers Lamar and Stout, the Court will DISMISS this Fourteenth Amendment 

claim against Officers Lamar and Stout with leave to amend. If Plaintiff chooses to amend his 
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complaint and re-plead this cause of action, he must proffer enough facts to state a plausible claim 

that Officers Lamar and Stout failed to supervise their subordinates, and that this was the 

proximate cause of the Fourteenth Amendment violation. 

6. Sixth Cause of Action: First Amendment Right to Petition the 

Government for Redress of Grievances

Plaintiff alleges that Officers Townsend, Bramucci, Osborne, and Ducart violated the First 

Amendment when they cancelled him from his staff complaint against Officer Speaker; when they 

failed to process his property appeal that alerted staff that the appeal had been submitted but lost; 

and when they were aware of, but ignored, Plaintiff’s request that prisoners not face reprisals for 

submitting grievances regarding staff misconduct. This allegation fails to state a § 1983 claim. 

“[T]he right of meaningful access to the courts extends to established prison grievance 

procedures,” Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995), overruled on other grounds by

Shaw v. Murphy, 532 U.S. 223, 230 n. 2 (2001), and inmates have a First Amendment right to use 

the prison grievance system, Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005). However, 

there is no constitutional entitlement to a prison grievance system at all, Mann, 855 F.2d at 640, or 

to a specific prison grievance procedure, see Ramirez, 334 F.3d at 860. Accordingly, Plaintiff’s 

First Amendment claims against Officers Townsend, Bramucci, Osborne, and Ducart arising out 

of his removal from his staff complaint against Officer Speaker; the denial of his property appeal; 

and the denial of his request that inmates not face reprisals are DISMISSED with prejudice.

7. Doe Defendants

Plaintiff has named Does 1–15 as defendants. Because the use of Doe defendants is not 

favored in the Ninth Circuit, see Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980), the Doe 

defendants will be dismissed without prejudice. Should Plaintiff succeed in identifying the 

unknown defendants, he may, upon a proper showing, move to amend to add them to his 

complaint. See id. 

CONCLUSION

1. The Court DISMISSES the following claims with prejudice: Plaintiff’s claim that 

Officers Lawry, Buchanon, Melton, Osborne, Bradbury, Ducart, Barneburg, and Higgerson’s 
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participation in the prison grievance procedure constituted First Amendment retaliation; Plaintiff’s 

claim that Officers Townsend, Olson, Ducart, and Osborne violated the Due Process Clause and

the Equal Protection clause of the Fourteenth Amendment right when they refused to transfer him 

to a correctional institute closer to his family; Plaintiff’s claim that Officers Melton, Osborne, 

Buchanon, and Ducart violated the Fourteenth Amendment when they refused to provide him with 

staff assistance for his RVR hearing; and Plaintiff’s claim that Officers Townsend, Bramucci, 

Osborne, and Ducart violated the First Amendment when they cancelled him from his staff 

complaint against Officer Speaker; when they failed to process his property appeal that alerted 

staff that the appeal had been submitted but lost; and when they were aware of, but ignored, 

Plaintiff’s request that prisoners not face reprisals for submitting grievances regarding staff 

misconduct. 

The Court DISMISSES Officers Nichols and Carraway from this action without prejudice 

to Plaintiff filing a separate action to seek relief against them. The Court DISMISSES the Doe 

Defendants without prejudice to Plaintiff seeking leave to amend the complaint to add these 

defendants when he identifies them. 

The Court will dismiss the First Amendment retaliation claim and the Fourteenth 

Amendment claim against Officers Lamar and Stout with leave to amend. If Plaintiff chooses to 

amend his complaint and re-plead these causes of action, he must proffer enough facts to state a 

plausible claim that Officers Lamar and Stout failed to supervise their subordinates, and that this 

was the proximate cause of the First Amendment and Fourteenth Amendment claim. The Court 

will also dismiss the Equal Protection claim against Officers Strutz-Alexander and Wilcox with 

leave to amend. If Plaintiff chooses to amend his complaint and re-plead this cause of action, he 

must proffer enough facts to state a plausible claim that Officers Strutz-Alexander and Wilcox’s 

denial of Plaintiff’s transfer request was motivated by discriminatory intent. 

In accordance with the above dismissals, the Clerk is directed to DISMISS the following 

defendants from this action: Officers Lawry, Melton, Osborne, Bradbury, Ducart, Higgerson, 

Townsend, Olson, Townsend, Bramucci, Nichols, Carraway, Lamar, Stout, and Does 1‒15. 

Officers Buchanon and Barneburg are not dismissed from this action because, as explained above, 
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Plaintiff has stated other cognizable claims against them.

2. If Plaintiff chooses to file an amended complaint, he must file the amended 

complaint within twenty-eight (28) days of the date of this order. The amended complaint must 

include the caption and civil case number used in this order, Case No. C 17-00663 JST (PR) and 

the words “AMENDED COMPLAINT” on the first page. If using the court form complaint, 

Plaintiff must answer all the questions on the form in order for the action to proceed. Because an 

amended complaint completely replaces the previous complaints, Plaintiff must include in his 

amended complaint all the claims he wishes to present, including the claims which the Court has 

already found cognizable, and all of the defendants he wishes to sue. See Ferdik v. Bonzelet, 963 

F.2d 1258, 1262 (9th Cir. 1992). Plaintiff may not incorporate material from the prior complaint 

by reference. 

Plaintiff is reminded that his allegations should be short and plain, and describe the relief 

he seeks. Fed. R. Civ. P. 8(a). Unrelated claims against different defendants must be pursued in 

separate lawsuits. Fed. R. Civ. P. 20(a)(2) (joinder of defendants not permitted unless both 

commonality and same transaction requirements are satisfied). Plaintiff may not change the nature

of this suit by alleging new, unrelated claims in the amended complaint. 

Failure to file an amended complaint in accordance with this order in the time provided 

will result the initial complaint remaining the operative complaint, and this action proceeding in 

accordance with this order. The Clerk shall include two copies of a blank complaint form with a 

copy of this order to Plaintiff. 

3. The Court finds that the complaint has stated the following cognizable claims: a 

First Amendment retaliation claim against Officers Forkner, Speaker, Schaad, Williams, Loheim, 

Hernandez, Harlen, Lacy, and Barneburg; and a Fourteenth Amendment claim against Officer 

Buchanon for refusing to call inmate Canon as a witness at Plaintiff’s RVR hearing.

4. 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 order 

upon defendants Officers Forkner, Speaker, Schaad, Williams, Loheim, Hernandez, Harlen, Lacy, 

Barneburg, and Buchanon at Pelican Bay State Prison. 
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A courtesy copy of the complaint with attachments and this order shall also be mailed to 

the California Attorney General’s Office. 

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

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

and serve a motion for summary judgment or other dispositive motion, or a motion to stay as 

indicated above. If defendants are of the opinion that this case cannot be resolved by summary 

judgment, defendants must so inform the Court prior to the date the motion is due. A motion for 

summary judgment also must be accompanied by a Rand notice so that plaintiff will have fair, 

timely, and adequate notice of what is required of him in order to oppose the motion. Woods v. 

Carey, 684 F.3d 934, 939 (9th Cir. 2012) (notice requirement set out in Rand v. Rowland, 154 

F.3d 952 (9th Cir. 1998), must be served concurrently with motion for summary judgment). A 

motion to dismiss for failure to exhaust available administrative remedies similarly must be 

accompanied by a Wyatt notice. Stratton v. Buck, 697 F.3d 1004, 1008 (9th Cir. 2012).

b. Plaintiff’s opposition to the summary judgment or other dispositive motion 

must be filed with the Court and served upon defendants no later than 28 days from the date the 

motion is filed. Plaintiff must bear in mind the notice and warning regarding summary judgment 

provided later in this order as he prepares his opposition to any motion for summary judgment. 

Plaintiff also must bear in mind the notice and warning regarding motions to dismiss for nonexhaustion provided later in this order as he prepares his opposition to any motion to dismiss. 

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

opposition is filed. The motion shall be deemed submitted as of the date the reply brief is due. No 

hearing will be held on the motion. 

6. Plaintiff is advised that 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 
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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(c), that contradict the facts shown in the defendants’ 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. Rand v. 

Rowland, 154 F.3d 952, 962–63 (9th Cir. 1998) (en banc) (App. A).

Plaintiff also is advised that a motion to dismiss for failure to exhaust available 

administrative remedies under 42 U.S.C. § 1997e(a) will, if granted, end your case, albeit without 

prejudice. You must “develop a record” and present it in your opposition in order to dispute any 

“factual record” presented by defendants in their motion to dismiss. Wyatt v. Terhune, 315 F.3d 

1108, 1120 n.14 (9th Cir. 2003).

(The Rand and Wyatt notices above do not excuse defendants’ obligation to serve said 

notices again concurrently with motions to dismiss for failure to exhaust available administrative 

remedies and motions for summary judgment. Woods, 684 F.3d at 939).

7. All communications by plaintiff with the Court must be served on defendants’ 

counsel by mailing a true copy of the document to defendants’ counsel. The Court may disregard 

any document which a party files but fails to send a copy of to his opponent. Until a defendants’ 

counsel has been designated, plaintiff may mail a true copy of the document directly to 

defendants, but once a defendant is represented by counsel, all documents must be mailed to 

counsel rather than directly to that defendant. 

8. 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) or Local Rule 16 is required 

before the parties may conduct discovery.

9. Plaintiff is responsible for prosecuting this case. Plaintiff must promptly 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). Plaintiff must file a notice of change of address in every 

pending case every time he is moved to a new facility.
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10. Any motion for an extension of time must be filed no later than the deadline sought 

to be extended and must be accompanied by a showing of good cause.

11. Plaintiff is cautioned that he must include the case name and case number for this 

case on any document he submits to the Court for consideration in this case.

IT IS SO ORDERED.

Dated: June 30, 2017

______________________________________

JON S. TIGAR

United States District Judge