The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER DENYING PLAINTIFF'S MOTION FOR ASSISTANCE FACILITATING COMMUNICATION WITH INMATE WITNESSES, WITH PREJUDICE ORDER CLOSING DISCOVERY (Doc. 92.)
I. RELEVANT PROCEDURAL HISTORY
This is a civil rights action filed pursuant to 42 U.S.C. -§ 1983 and California law by Punaofo Tsugito Tilei ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis. This action is proceeding on Plaintiff's amended complaint, filed July 30, 2007, against defendants Wan, Gallagher, and Cooper ("Defendants") for retaliation in violation of the First Amendment, and for denial of due process in violation of the Fourteenth Amendment.*fn1 (Doc. 16.) The events at issue in this action occurred at the California Substance Abuse Treatment Facility and State Prison ("SATF") in Corcoran, California, in 2005.
On September 10, 2009, and again on January 8, 2010, Plaintiff filed motions for court orders to communicate with his inmate witnesses. (Docs. 62, 76.) On January 22, 2010, the Court issued an order denying Plaintiff's motions, without prejudice to renewal with a factual showing that the witnesses possess relevant knowledge, within forty-five days. (Doc. 89.) On March 1, 2010, Plaintiff renewed the motion, seeking a court order assisting with facilitation of communication with fifteen inmate witness. (Doc. 92.) On October 8, 2010, the Court issued an order requiring Defendants to file a response to Plaintiff's motion. (Doc. 106.) On November 24, 2010, Defendants filed a response to the motion. (Doc 110.) Plaintiff has not filed a reply.
II. PLAINTIFF'S ALLEGATIONS AND CLAIMS
In the amended complaint, Plaintiff claims that Defendants retaliated against him for his participation in legal activities, and violated his rights to due process, when they retained him in administrative segregation ("Ad-Seg") and transferred him to another prison. Plaintiff claims that the reason Defendants gave for placing him in Ad-Seg -- that an anonymous source stated Plaintiff's life was possibly in danger from enemies -- was false.
In their response to Plaintiff's motion for leave to correspond with inmate witnesses, Defendants summarize Plaintiff's allegations and their defense as follows:
"Plaintiff alleges that he was placed in administrative segregation in retaliation for sending a complaint to the Ombudsman and Internal Affairs. Plaintiff's story is that he notified Defendant Wan that an inmate had been assaulted by an officer while the inmate was in the shower. Plaintiff claims that Defendant Wan was upset when he found out that Plaintiff had notified prison officials in CDCR headquarters about the alleged assault. Plaintiff claims that Defendant Wan showed him the confidential investigatory file and berated Plaintiff for going behind his back. Plaintiff claims that he was placed in administrative segregation, on the pretext that his safety was in danger if he remained in the general population. Plaintiff claims that his removal from general population and his later transfer to another prison was in retaliation for sending the complaint about the alleged assault to [the] CDCR Ombudsman and Internal Affairs. (First Amended Complaint, CR 16.)
Defendants contend that there was a legitimate penological reason to remove Plaintiff from the general population, that the information came originally from an unsigned note, and when other information confirmed the threat, Plaintiff had to be transferred for his own safety. Prison officials have a constitutional duty to take measures they believe are appropriate to protect the safety of every prisoner in their custody. Farmer v. Brennen, 511 U.S. 825, 833 (1994)." (Response to Motion, Doc. 110 at 3-4.)
"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).
With regard to transfer, prison inmates do not have a constitutional right to be incarcerated at a particular correctional facility or to be transferred from one facility to another. Meachum v. Fano, 427 U.S. 215, 224-25 (1976). However, prison officials may not "transfer an inmate to another prison in retaliation for the inmate's exercise of his First Amendment rights . . . ." Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). To establish a prima facie case, plaintiff must allege and show that defendants acted to retaliate for his exercise of a protected activity, and defendants' actions did not serve a legitimate penological purpose. See Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994); Pratt, 65 F.3d at 807.
To succeed on his claim for retaliation, Plaintiff must prove that Defendants retained him in Ad-Seg, and/or transferred him to another facility, because of his participation in legal activities, and Defendants' actions did not advance a legitimate correctional goal.
In order to state a cause of action for deprivation of procedural due process, a plaintiff must first establish the existence of a liberty interest for which the protection is sought. Liberty interests may arise from the Due Process Clause itself or from state law. Hewitt v. Helms, 459 U.S. 460, 466-68 (1983). The Due Process Clause itself does not confer on inmates a liberty interest in being confined in the general prison population instead of administrative segregation. See Id. Liberty interests created by prison regulations are limited to freedom from restraint which "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995).
Plaintiff is entitled to very limited due process protections under federal law with respect to placement in Ad-Seg. See Toussaint v. McCarthy, 801 F.2d 1080, 1100-01 (9th Cir. 1986). That Defendants may have failed to comply with state regulations is not grounds for relief under section 1983 for deprivation of due process. Due process requires only that prison officials "hold an informal non-adversary hearing within a reasonable time after the prisoner is segregated," that prison officials "inform the prisoner of the charges against [him] or the reasons for considering segregation," and that the prisoner be allowed "to present his views." Id.
To succeed on his claim for due process violations, Plaintiff must first prove that his retention in Ad-Seg imposed an "atypical and significant hardship in relation to the ordinary incidents of prison life." Second, Plaintiff must prove he was not given a proper hearing before he was placed in Ad-Seg.
III. MOTION FOR LEAVE TO CORRESPOND WITH INMATE WITNESSES
Inmates may only correspond with one another if they obtain written authorization from the appropriate prison officials. Cal. Code Regs., tit. 15 -§ 3139 (2010). Further, the Court does not have jurisdiction in this action over anyone other than Plaintiff and Defendants, and cannot order that Plaintiff be allowed to correspond with his witnesses. E.g., City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665 (1983); Valley Forge Christian Coll. v. Ams. United for Separation of Church and ...