Weisner v. Salinas

[1] 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA [4] 5 FRANKIE J. WEISNER, BE9270, Case No. 22-cv-05382-CRB (PR) 6 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ 7 v. MOTION TO DISMISS 8 L. SALINAS, et al., (ECF Nos. 46, 49, 50, 58 & 60) 9 Defendant(s). 10 I. 11 Plaintiff, a state prisoner currently incarcerated at Kern Valley State Prison (KVSP), filed a 12 pro se First Amended Complaint (FAC) under 42 U.S.C. § 1983 alleging that, while he was 13 incarcerated at the Correctional Training Facility (CTF), correctional case records analyst L. 14 Salinas unlawfully retaliated against him for challenging via inmate appeals her calculation of his 15 sentence by having two Investigative Services Unit (ISU) officers threaten plaintiff and by filing a 16 false Rules Violation Report (RVR) against plaintiff for harassing Salinas. Plaintiff also alleges 17 that the CTF officials who helped process Salinas’ RVR – H. Andrade, P. McDonald, S. Handley, 18 S. Balli, and K. Binning – knowingly participated in Salinas’ retaliatory decision to punish him by 19 pursuing and securing a guilty finding on the false RVR. Plaintiff claims retaliation in violation of 20 the First Amendment as well as cruel and unusual punishment in violation of the Eighth 21 Amendment and denial of due process in violation of the Fourteenth Amendment. 22 On May 25, 2023, the court screened the FAC pursuant to 28 U.S.C. § 1915A(a) and found 23 that plaintiff’s allegations, liberally construed, state arguably cognizable damages claims for 24 retaliation under § 1983 against Salinas, Andrade, McDonald, Balli, Handley and Binning and 25 ordered them served. But the court found that the allegations do not state additional cognizable 26 damages claims under § 1983 for cruel and unusual punishment or denial of due process and made 27 clear that this action “will be limited to plaintiff’s damages claims under § 1983 for retaliation 1 On August 28, 2023, defendants filed a motion to dismiss under Federal Rule of Civil 2 Procedure 12(b)(6) on the grounds that plaintiff’s retaliation claims are barred by the favorable 3 termination rule under Heck v. Humphrey, 512 U.S. 477 (1994), and Edwards v. Balisok, 520 U.S. 4 641 (1997), and that plaintiff has not alleged sufficient facts to state a retaliation claim. Plaintiff 5 has filed an opposition and defendants have filed a reply. 6 Plaintiff also has filed several miscellaneous motions, some to which defendants have 7 responded, which the court will address after the motion to dismiss. 8 II. 9 Plaintiff is a state prisoner serving a determinate enhanced sentence of nine years and eight 10 months for second-degree robbery and grand theft imposed by the San Joaquin County Superior 11 Court on November 17, 2017. ECF No. 49-2 (Req. Judicial Notice Ex. C) at 80. But on March 12 11, 2022, he was sentenced in Sacramento County Superior Court to a consecutive sentence of two 13 years for possession of a weapon in a penal institution doubled to four years due to the prior strike 14 robbery conviction from San Joaquin County Superior Court. ECF No. 17 (FAC Ex. 5) at 42. 15 Plaintiff alleges that upon his return to CTF from Sacramento County Superior Court, 16 Salinas calculated his total sentence incorrectly as a “second striker” rather than as a prior strike 17 enhancement. ECF No. 17 (FAC) at 29. Plaintiff alleges that he asked Salinas to correct her 18 calculation of his total sentence, but she refused insisting that he was sentenced as a second striker. 19 On April 8, 2022, plaintiff filed an inmate appeal regarding Salinas’ “actions,” which was 20 denied at all levels of review, and on May 3, 2022, he filed another inmate appeal attempting to 21 clarify the “second strike issue,” which also was denied at all levels of review. Id. at 14, 15. 22 On May 3, 2022, plaintiff alleges that Salinas “manipulated” two ISU officers into 23 “threatening and intimidating me to stop filing appeals and/or litigate other legal actions (e.g., 24 lawsuit).” Id. at 15. This occurred while plaintiff was “in the law library” and the officers “called 25 plaintiff over to harass and intimidate plaintiff into not writing any more GA-22 forms to Salinas 26 or file any appeals on the issue, or plaintiff would receive an RVR.” Id. at 31. 27 On May 4, 2022, plaintiff alleges he attended a group Salinas was running and asked her 1 asking me where the bathroom is after you threatened to sue me and file appeals on me[?]’” Id. 2 Since “‘you want to push paperwork[,] you’ll be getting an RVR soon.’” Id. 3 On May 18, 2022, plaintiff received an RVR for harassment of another person that Salinas 4 “fabricated . . . in order to retaliate against” plaintiff. Id. at 16. The RVR was reviewed and 5 “approved” by McDonald and Handley. Id. It was “document[ed]” by Andrade. Id. at 24. 6 On July 16, 2022, Balli held a disciplinary hearing on the RVR and found plaintiff “guilty 7 of harassment of another person.” Id. at 16. The guilty finding was “affirmed” by Binning on July 8 21, 2022. Id. 9 Plaintiff alleges that the defendants who helped process Salinas’ RVR – Andrade, 10 McDonald, Handley, Balli, and K. Binning – knowingly participated in Salinas’ retaliatory 11 decision to punish plaintiff by pursuing and securing a guilty finding on the false RVR. He also 12 alleges that because of their actions he sustained injuries including “loss of conduct credit.” Id. at 13 17. The RVR in plaintiff’s record indeed shows that he was assessed “30 Days” of good conduct 14 credit. ECF No. 49-2 at 11. 15 III. 16 Dismissal is proper where the operative complaint fails to “state a claim upon which relief 17 can be granted.” Fed. R. Civ. P. 12(b)(6). “Dismissal can be based on the lack of a cognizable 18 legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri 19 v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990) (citation omitted). While a complaint 20 does not need detailed factual allegations, it must proffer “enough facts to state a claim for relief 21 that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim 22 is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable 23 inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662 , 24 678 (2009). 25 When ruling on a motion to dismiss, a court must accept as true all material allegations in 26 the complaint, but it need not accept as true “legal conclusions cast in the form of factual 27 allegations if those conclusions cannot be reasonably drawn from the facts alleged.” Clegg v. Cult 1 complaint, but a court may “consider certain materials—documents attached to the complaint, 2 documents incorporated by reference in the complaint, or matters of judicial notice—without 3 converting the motion to dismiss into a motion for summary judgment.” United States v. Ritchie, [4] 342 F.3d 903, 908 (9th Cir. 2003). 5 IV. 6 Defendants move for dismissal under Rule 12(b)(6) on the grounds that: (1) plaintiff’s 7 retaliation claims are barred by the favorable termination rule under Heck v. Humphrey, 512 U.S. 8 477 (1994), and Edwards v. Balisok, 520 U.S. 641 (1997), and (2) plaintiff has not alleged 9 sufficient facts to state a retaliation claim for violation of the First Amendment. 10 A. 11 Under Heck, a prisoner may not bring a claim under § 1983 that necessarily implies the 12 invalidity of a conviction or sentence until he has succeeded in invalidating the conviction or 13 sentence by other means, such as through the grant of a writ of habeas corpus. See 512 U.S. at 14 486-87. Heck also applies to § 1983 claims arising from prison disciplinary proceedings that 15 resulted in a sanction that affects a prisoner’s term of confinement, such as the loss of good time 16 credits. See Edwards, 520 U.S. at 648 . A prisoner’s challenge to a prison disciplinary proceeding 17 is barred by Heck if judgment in his favor would necessarily imply the invalidity of the resulting 18 loss of good time credits. Id. at 646 . Put simply, “a state prisoner’s § 1983 action is barred 19 (absent prior invalidation) – no matter the relief sought (damages or equitable relief), no matter the 20 target of the prisoner’ suit (state conduct leading to conviction or internal prison proceedings) – if 21 success in that action would necessarily demonstrate the invalidity of confinement or its duration.” 22 Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005). 23 Defendants argue that plaintiff’s retaliation claims are barred under Heck and Edwards. 24 The court agrees that the rationale of Heck and Edwards bars plaintiff’s claim that defendants 25 retaliated against him by knowingly filing, processing and adjudicating a false RVR for which he 26 was found guilty and assessed 30 days of good time credits, but it does not bar plaintiff’s claim 27 that Salinas retaliated against him by having two ISU officers threaten and intimidate him to stop 1 Plaintiff alleges that Salinas retaliated against him for filing inmate appeals by filing a 2 fabricated RVR against him for harassing her and that the defendants who helped process the RVR 3 – Andrade, McDonald, Handley, Balli, and Binning – knowingly participated in Salinas’ 4 retaliatory decision to punish him by pursuing and securing a guilty finding on the false RVR. 5 Plaintiff also alleges, and the RVR in plaintiff’s record confirms, that he was found guilty at his 6 disciplinary hearing and assessed 30 days of good time credit. Plaintiff’s allegations of a 7 fabricated RVR are fundamentally inconsistent with the hearing officer’s findings that the RVR 8 was supported by the evidence. See ECF No. 49-2 at 10 (“Guilty as Charged based on 9 preponderance of evidence.”). If plaintiff prevailed on his claim that the RVR was fabricated and 10 issued for a retaliatory or improper purpose, it would necessarily imply that the hearing officer’s 11 findings and resulting punishment of loss of 30 days of good time credit are invalid. Accord 12 Burgess v. Raya, 690 F. App’x 483, 484 (9th Cir. 2017) (retaliation claim against correctional 13 officers barred by Heck because success would imply invalidity of disciplinary proceedings); Cole 14 v. Spears, No. 22-cv-5925-MEMF-JPR, 2023 WL 5506003 , at **3-4 (C.D. Cal. July 12, 2023) 15 (unless plaintiff can show disciplinary decision has been invalidated, claim that RVR was issued 16 for retaliatory or improper purpose barred by Heck because plaintiff prevailing would imply 17 hearing officers’ findings and imposed punishment are invalid); Blair v. Herrera-Salazar, No. 1918 cv-1261-DMS-KSC, 2021 WL 8013610 , at *5 (S. D. Cal. Sept. 27, 2021) (retaliation claim barred 19 by Heck because plaintiff prevailing would invalidate RVR, disciplinary hearing and loss of good 20 time credits), accepted by 2022 WL 1047515 (S.D. Cal. Apr. 7, 2022); see also Luster v. 21 Amezcua, No. 16-cv-0554-LJO-GSA, 2019 WL 1442992 , at *8 (E. D. Cal. Apr. 1, 2019) 22 (retaliation claim barred by Heck because plaintiff’s theory depended on finding that charges 23 against her were false, which would necessarily imply invalidity of punishment imposed). After 24 all, a prisoner’s allegations of deceit and bias on the part of the decisionmaker at a prison 25 disciplinary hearing – as plaintiff alleges in connection with Balli here – necessarily imply the 26 invalidity of the punishment imposed and is barred by Heck. See Edwards, 520 U.S. at 646-47 . 27 Plaintiff suggests that Heck and Edwards should not bar his claims because he is not 1 the Ninth Circuit recently made clear that “[s]o long as the claim ‘indirectly [seeks] a judicial 2 determination that necessarily implies the unlawfulness of the [duration of the] State’s custody,’ 3 Heck and Edwards require his § 1983 cause of action to be dismissed.” Hebrard v. Nofziger, 90 4 F.4th 1000 , 1010 (9th Cir. 2024) (quoting Wilkinson, 544 U.S. at 81 ) (emphasis in original). And 5 that is exactly what plaintiff’s claim that defendants retaliated against him by knowingly filing, 6 processing, and adjudicating a false RVR that resulted in his loss of 30 days of good time credits 7 does – it indirectly seeks a judicial determination that necessarily implies the unlawfulness of the 8 imposition of any sanctions based on the allegedly falsified RVR, including the assessment of 9 plaintiff’s earned time credits. See id. at 1011. Plaintiff’s claim that defendants retaliated against 10 him by knowingly filing, processing, and adjudicating a false RVR that resulted in his loss of 30 11 days of good time credits must be dismissed as barred under Heck. See id. at 1012. 12 But the rationale of Heck and Edwards does not apply to plaintiff’s claim that Salinas 13 retaliated against him by having two ISU officers threaten and intimidate him to stop filing 14 appeals and/or litigate other legal actions or he would receive an RVR. Plaintiff may proceed with 15 this claim because his prevailing on it would not necessarily imply the invalidity of the duration of 16 his confinement. See Wilkinson, 544 U.S. at 82 . 17 B. 18 “Within the prison context, a viable claim of First Amendment retaliation entails five basic 19 elements: (1) An assertion that a state actor took some adverse action against an inmate (2) 20 because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 21 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 22 correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted). 23 Plaintiff’ remaining, not-Heck-barred claim is that Salinas retaliated against him for 24 challenging via inmate appeals her calculation of his total sentence by having two ISU officers 25 threaten him. Plaintiff specifically alleges that on May 3, 2022, the same day on which he filed a 26 second inmate appeal regarding Salinas’ calculation of his total sentence, Salinas “manipulated” 27 two ISU officers into “threatening and intimidating me to stop filing appeals and/or litigate other 1 officers “called plaintiff over to harass and intimidate plaintiff into not writing any more GA-22 2 forms to Salinas or file any appeals on the issue, or plaintiff would receive an RVR.” Id. at 31. 3 Plaintiff’s allegations are sufficient to “state a claim upon which relief can be granted.” 4 Fed. R. Civ. P. 12(b)(6). And although he does not set forth detailed factual allegations, he sets 5 forth “enough facts to state a claim for relief [for retaliation] that is plausible on its face.” 6 Twombly, 550 U.S. at 570 . Plaintiff satisfies the first element of his retaliation claim because “the 7 mere threat of harm can be an adverse action” in the retaliation context, Brodheim v. Cry, 584 8 F.3d 1262, 1270 (9th Cir. 2009) (emphasis removed), and he alleges that he was threatened with 9 an RVR if he did not stop filing inmate appeals. He satisfies the second element of his retaliation 10 claim, causation, because he alleges that Salinas had the ISU officers threaten him because of his 11 filing inmate appeals regarding her calculation of his sentence. In fact, she did so on the same day 12 on which he filed his second inmate appeal regarding her calculation of his sentence. He satisfies 13 the third element, protected conduct, because the filing of inmate appeals is considered protected 14 conduct. See Shepard v. Quillen, 840 F.3d 686, 689 (9th Cir. 2016) (filing prison staff complaint 15 amounts to protected conduct satisfying third prong of retaliation claim); see also Rhodes, 408 16 F.3d at 567 (prisoners may not be retaliated against for using prison grievance procedures). He 17 satisfies the fourth element of his retaliation claim, chilling of his exercise of First Amendment 18 rights, because the threat of an RVR (which can result in punishment including the loss of earned 19 time credits) is more than minimal harm. See Shepard, 840 F.3d at 691 (for prisoner to show 20 “chilling effect, the harm need only be more than minimal”). And he satisfies the fifth and final 21 element of his retaliation claim, that the adverse action did not reasonably advance a legitimate 22 correctional goal, because the alleged threats of harm for filing inmate appeals do not reasonably 23 advance a legitimate correctional goal. But whether plaintiff can set forth sufficient evidence to 24 create a genuine issue for trial on his retaliation claim is matter for a later time. 25 V. 26 Plaintiff has filed several miscellaneous motions, including two motions for contempt, a 27 motion seeking a dispositive motion deadline and a motion seeking a settlement conference. ] did not violate any of the court’s orders or deadlines, and plaintiff is not entitled to entry of default 2 || judgment. 3 The motion seeking a dispositive motion deadline (ECF No. 58) is DISMISSED as moot 4 || because the court is setting a summary judgment or other dispositive motion deadline at the 5 conclusion of this order. 6 The motion seeking a settlement conference (ECF No. 60) is DENIED without prejudice. 7 || The court will refer this matter for settlement proceedings on its own motion if it later determines 8 || that settlement proceedings are in order. 9 VI. 10 For the foregoing reasons, defendants’ motion to dismiss (ECF No. 49) is GRANTED IN 11 PART AND DENIED IN PART. Plaintiffs claim that defendants retaliated against him for filing 12 || inmate appeals by knowingly filing, processing, and adjudicating a false RVR for which he was 13 found guilty and assessed 30 days of good time credits is barred by Heck and DISMISSED. But 14 || plaintiffs claim that Salinas retaliated against him for filing inmate appeals by having two ISU 8 15 officers threaten and intimidate him to stop filing appeals and/or litigate other legal actions or he 16 || would receive an RVR is not barred by Heck and may proceed as a sufficient claim upon which i 17 || relief may be granted. Zz 18 To expedite these proceedings, defendants shall file a motion for summary judgment or 19 || other dispositive motion on plaintiffs remaining claim by no later than June 3, 2024. Plaintiff 20 || shall file an opposition or statement of non-opposition to the motion no more than 28 days after 21 the motion is filed and served, and defendants shall file a reply to any opposition no more than 14 22 || days after the opposition is filed and appears on ECF. 23 The clerk is instructed to terminate the motions appearing on ECF as items number 46, 49, 24 50, 58 and 60. 25 IT IS SO ORDERED. 26 Dated: February 20, 2024 27 a □□□ CHARLES R. BREYER 28 United States District Judge