The opinion of the court was delivered by: Alex Kozinski Chief Circuit Judge
Masterson claims that the defendants retaliated against him for reporting sexual harassment by Jeffrey Baker, a correctional officer at Mule Creek State Prison. Prison officials allegedly took away Masterson's job, reduced his work status and privileges classification, denied his request to be considered for a clerical position and confiscated his property during two cell searches. Masterson also claims he was denied due process because the prison punished him on two separate occasions without giving him a fair hearing. These are the only claims, all filed under 42 U.S.C. § 1983, that survived an earlier motion to dismiss (see docket entries 45 and 48). Baker and the other defendants filed separate motions for summary judgment (docket entries 131 and 144). Baker also filed a motion to page 2 dismiss as unexhausted Masterson's claims stemming from the cell search conducted on November 4, 2003 (docket entry 132).
In ruling on the motion to dismiss, I've construed Masterson's pro se complaint liberally and accepted its allegations as true. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949--50 (2009); Erickson v. Pardus, 551 U.S. 89, 94 (2007). I've considered the pleadings in the light most favorable to Masterson and resolved all doubts in his favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). In ruling on the motions for summary judgment, I've drawn all reasonable inferences in Masterson's favor. See Edwards v. Wells Fargo & Co., 606 F.3d 555, 557 (9th Cir. 2010). Defendants have the initial burden of identifying an "absence of evidence to support [Masterson's] case." Cline v. Indus. Maint. Eng'g & Contracting Co., 200 F.3d 1223, 1229 (9th Cir. 2000). The burden then shifts to Masterson to move beyond mere allegations and present a genuine factual issue for trial. Id.
Masterson ultimately must prove that a state actor chilled his First Amendment rights by taking an adverse action against him because he engaged in protected conduct. Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005). He must also show that the action didn't reasonably advance a legitimate correctional goal. Id. at 567--68. Masterson alleges that the defendants took four such retaliatory actions against him in 2004:
First, the Unit Classification Committee reduced Masterson's work status and privileges on March 24 and removed him from his job as a clerk for Rabbi Book, the Jewish chaplain, pending a disciplinary hearing. Second, Masterson was found guilty the next month based on a Rules Violation Report alleging he had manipulated staff. Third, the Committee denied Masterson's request to be placed on a waiting list for another clerical job. Fourth, an officer searched Masterson's cell on November 29 and confiscated a state log book, which is ordinarily used by officers to record daily activities for the next shift. Masterson claims he was using the log book to keep a record of officer misconduct, including sexual harassment. He was again issued a Rules Violation Report and found guilty.*fn1
Masterson's first three claims do not survive summary judgment because the state actions at issue reasonably advanced a legitimate penological purpose.
Masterson does not dispute that he used Rabbi Book's personal letterhead, without his permission, to draft a memorandum requesting that doors to the chapel remain unlocked.*fn2 The incident set in motion Masterson's removal from his position as clerk, the finding that he had manipulated staff and the denial of his request to be put on a waiting list for a different clerical position. The Committee reasonably concluded that "clerical positions are jobs that require a certain degree of trust being placed in the inmate assigned to them. It is felt that based on his misuse of state materials/equipment coupled with his manipulation of staff within his work environment, [Masterson] has violated any level of trust that staff may have placed in him." The Committee therefore put Masterson on a waiting list for a job making textile products. Prison officials had cause to remove Masterson from his position, find him guilty of the rules violation and not put him on the clerical position waiting list. As a result, Masterson cannot carry his "burden of pleading and proving the absence of legitimate correctional goals for the conduct of which he complains." Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995).
Defendants are also entitled to summary judgment on Masterson's fourth claim. Everyone agrees that prison staff ordered a search of Masterson's cell and confiscated a state log book from him on November 29. Prisoners are prohibited from possessing unauthorized state materials. See Cal. Code Regs. tit. 15 §§ 3000, 3006, 3152(a).*fn3 Masterson argues that enforcing the regulations was a pretext for retaliating against him for recording misconduct, but he doesn't point to any evidence that would allow a reasonable jury to agree. He leans on the fact that defendant White ordered a cell search after he found out that Masterson possessed a log book, but it's perfectly natural that a prison guard would order such a search after discovering that an inmate possessed contraband. Masterson provides no evidence that the cell search was ordered for some other, unlawful, reason. Similarly, Masterson proves nothing by stressing that defendant Kaphan confiscated the log book and issued a rules violation report only after he found out the book existed. What else should a guard do in such circumstances?
Nor does Masterson get anywhere by showing that he told an officer that he believed the search was an act of retaliation. See Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 752--53 n.5 (9th Cir. 2001) ("Mere opinions and beliefs that [the] actions were retaliatory . . . are not enough to create a genuine issue of material fact on the issue of pretext."). That the same officer had taken no disciplinary action against Masterson after he told her he was keeping a log of misconduct doesn't prove that White and Kaphan had an improper motive when they enforced the rules against contraband. See id. The earlier guard may not have realized Masterson was using unauthorized state materials, or may have exercised her discretion to overlook a minor infraction. None of this proves, even remotely, that White and Kaphan acted out of improper motive. Masterson points to nothing else to support his opposition.
Masterson also argues that he was deprived of due process when the defendants punished him without first giving him a fair chance to contest the two rules violation reports. The Supreme Court has held that when a prison disciplinary hearing implicates a protected liberty interest, the inmate must receive (1) advanced written notice of the charges; (2) an opportunity to call witnesses and present evidence, when it's consistent with institutional safety and correctional goals; and (3) a written statement by the factfinder of the reasons and evidence supporting the disciplinary action. Superintendent v. Hill, 472 U.S. 445, 454 (1985); see Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir. 1994) (per curiam).
Masterson received notice of both Rules Violation Reports before his hearings, and he was permitted to question witnesses. He also received a written decision from the hearing officer in both cases. And there was significant evidence supporting the charges against him. See Hill, 472 U.S. at 455 (requiring at least "some evidence"). Masterson nonetheless argues he was denied due process both times. For the first violation, the defendants allegedly reduced his work status and privileges before notifying him of the manipulation-of-staff charge. And the hearing officer in that case allegedly questioned a witness outside of Masterson's presence. See Cal. Code Regs. tit. 15 § 3320(j). For the second violation, Masterson claims that the hearing officer denied him the right to question the reporting officer. See Opp'n to Defs.' Statement of Undisputed Facts ¶¶ 57--58 (docket entry 151).
Masterson can't prevail on his claims related to the first violation because he wasn't deprived of any protected liberty interest. Three things happened to Masterson as a result of his writing an unauthorized memo on Rabbi Book's letterhead. First, he lost his job. Second, he was demoted from Work Group A-1 to Work Group A-2, which simply reflected the fact that he no longer had a full- time position and did not affect his ability to earn credits under Penal Code section 2933. See Cal. Code Regs. tit. 15 § 3044(b)(2)--(3). And he was demoted from Privilege Group A ...