ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. In his complaint, plaintiff alleges that defendants violated his rights under the First Amendment and the Due Process Clause of the Fourteenth Amendment.
On December 18, 2009, defendants moved to dismiss plaintiff's complaint on the grounds that: (1) plaintiff's claims are barred by the favorable termination rule announced in Heck v. Humphrey, 512 U.S. 477 (1994); (2) plaintiff failed to state a cognizable claim under the Due Process Clause; (3) defendant Martel's and Lackner's actions furthered a legitimate penological purpose; and (4) all defendants are entitled to qualified immunity. Plaintiff has filed an opposition to the motion, and defendants have filed a reply. In addition, pursuant to court order, defendants have filed a supplemental brief addressing issues raised by their argument seeking dismissal pursuant to Heck in light of plaintiff's sentence. For the reasons set forth below, the court recommends that defendants' motion to dismiss be granted in part and denied in part.
Plaintiff is proceeding on his original complaint against defendants Feltner, Machado, Martel, and Lackner. In his complaint, plaintiff alleges as follows. On March 28, 2008, plaintiff was given a job assignment as an Enhanced Outpatient Program (EOP) aide and mentor.*fn1 Shortly thereafter, plaintiff noticed that two co-workers were subjecting EOP inmates to physical, emotional, and financial abuse. He brought this to the attention of defendant Feltner, who dismissed plaintiff's concerns and told him to "mind [his] own business." Moreover, defendant Feltner indicated that one of the co-workers in question was his "inside man" who was given extra leeway. (Compl. at 3-4.)
Having little success with other correctional staff in halting the abuse of EOP inmates, plaintiff sought the help of Recreation Therapist Dru Scott. Ms. Scott confirmed that she had heard similar reports of abuse from other inmates and that she would take some form of action. In late September or early October 2008, Ms. Scott issued an internal memo stating that she was disturbed by EOP's unhealthy environment and that remedial action should be taken. Ms. Scott's memo was addressed to EOP staff members and administrators, including defendants Feltner and Machado. (Compl. at 5, Ex. C.)
Defendant Feltner responded harshly to Ms. Scott's memo, convening a meeting where he threatened to fire all EOP aides and mentors if there was another "leak" about inmate abuse. Defendant Feltner also called plaintiff into his office and alleged that plaintiff was the main suspect behind the memo's complaints. Thereafter, plaintiff experienced late releases from his cell, repeated cell and body searches and verbal abuse from other correctional staff members.
Fearing for his safety, plaintiff resigned from his position as an EOP aide and mentor on October 23, 2008. The following day, plaintiff filed a CDC-602 grievance form in which he reiterated his complaints regarding EOP inmate abuse and indicated his intent to bring the matter before J. Michael Keating.*fn2 Plaintiff also mailed a letter detailing the inmate abuse to attorneys at the Prison Law Office in San Quentin, California. (Compl. at 6-7; Ex. D1.)
On November 9, 2008, defendant Feltner escorted plaintiff to the Program Office to be questioned. Two documents, both authored by defendant Feltner, claimed that plaintiff had been "pressuring lower functioning inmates to make false allegations on other inmates and staff members." After approximately forty-five minutes of questioning, plaintiff was handed a copy of the lock-up order and was placed in administrative segregation. (Compl. at 7-8.)
The following day, defendant Machado held plaintiff's 114-D hearing to decide whether plaintiff would be retained in administrative segregation. Defendant Machado did not allow plaintiff to present any witnesses and stated, "Maybe if you hadn't written that [CDC-602] and contacted the judge about the EOP program, you wouldn't be here." Ultimately, defendant Machado ruled that plaintiff should be retained in administrative segregation. (Compl. at 7-9.)
On November 13, 2008, plaintiff appeared before the Institutional Classification board (ICC), which included defendants Lackner and Martel. During his ICC hearing, plaintiff was again denied an investigative employee, the presence of witnesses, and the opportunity to present evidence. The ICC concluded that plaintiff should be retained in administrative segregation until a full investigation into the disciplinary charges could be completed. (Compl. at 9, Ex. H.)
On November 19, 2008, plaintiff filed another CDC-602 grievance, alleging that defendant Feltner and other prison officials were retaliating against him for exercising his First Amendment rights. (Compl. at 9, Ex. I.)
On November 24, 2008, plaintiff was released from administrative segregation. However on December 14, 2008, plaintiff was returned to administrative segregation on another charge of pressuring fellow inmates. Although this charge was quickly dismissed, plaintiff was found guilty of the original charges brought against him on November 9, 2008. Consequently, prison officials recommended that plaintiff be transferred to another institution. (Compl. at 10-11.)
On December 27, 2008, plaintiff wrote a letter to defendant Martel reiterating his innocence and requesting that he not to be transferred. On January 8, 2009, defendant Lackner wrote in response indicating that "further review into the reasons for your Ad-Seg placement is warranted... [and] you will be scheduled for ICC in the near future to determine your housing and placement." However, such a hearing was never held, and on February 26, 2009, plaintiff was transferred to Pleasant Valley State Prison. (Compl. at 11; Ex. L.)
Based upon these allegations, plaintiff claims that defendant Feltner violated his rights under the First Amendment and Due Process Clause of the Fourteenth Amendment by falsifying disciplinary charges against him and placing him in administrative segregation for the purpose of retaliating against plaintiff for filing grievances. Plaintiff also claims that defendants Machado, Lackner, and Martel similarly violated his First Amendment and due process rights by furthering defendant Feltner's retaliatory actions. In terms of relief, plaintiff seeks an injunction, declaratory relief and monetary damages. (Compl. at 12-14.)
DEFENDANTS' MOTION TO DISMISS
In moving to dismiss, defense counsel argues that plaintiff's due process and retaliation claims against defendants Feltner, Machado, Lackner, and Martel are barred by the favorable termination rule. Counsel asserts that the underlying basis for plaintiff's claims is the allegation that defendants falsified information in the rules violation report. Counsel argues that plaintiff's success on his claims would therefore imply the invalidity of the rules violation conviction, pursuant to which plaintiff was assessed a sixty-day loss of behavioral credits. According to defense counsel, plaintiff must first successfully challenge his disciplinary conviction by way of a habeas corpus petition and not in a § 1983 civil rights action. (Def.'s Mot. to Dismiss at 4, 8-9.)
Defense counsel also contends that plaintiff fails to state a cognizable due process claim against defendants Feltner, Machado, Martel and Lackner. In this regard, counsel argues that placement in administrative segregation does not, in of itself, implicate a protected liberty interest and that plaintiff has not alleged facts demonstrating that his confinement constituted an atypical and significant hardship. Counsel argues further that even if plaintiff has a protected liberty interest, he has received all the process that he was due. Specifically, counsel emphasizes that plaintiff was informed in writing of the reasons for his confinement in administrative segregation and was given opportunities to present his views to a hearing committee. (Def.'s Mot. to Dismiss at 5-7.)
Defense counsel also asserts that defendants Martel and Lackner did not violate plaintiff's First Amendment rights because their decision to retain him in administrative segregation furthered a legitimate penological purpose. Counsel argues that under California prison regulations, retention of a prisoner in administrative segregation while a rules violation report is pending ensures prison safety and security. Moreover, counsel argues, the decisions made by defendants Martel and Lackner were justifiable, especially in light of the fact that plaintiff was ultimately found guilty of the rules violation. (Def.'s Mot. to Dismiss at 9-10.)
Lastly, defense counsel claims that all the defendants are entitled to qualified immunity because they did not violate plaintiff's constitutional ...