The opinion of the court was delivered by: James V. Selna United States District Judge
ORDER ACCEPTING FIRST INTERIM REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
The Court has reviewed the file in this matter, and has read and reviewed the First Interim Report and Recommendation of United States Magistrate Judge, including the separately-filed Supplement to that Report. Further, the Court has engaged in a de novo review of those portions of the Report and the Supplement to which Plaintiff has thoughtfully objected with skill seldom displayed by pro se litigants. The Court needs no further discussion to accept the Report's recommendation to dismiss the complaint
(1) without leave to amend as to Claim 2 (Due Process), and (2) with leave to amend as to Claim 3 (Cruel And Unusual Punishment). But the fate of Claim 1, for which the Magistrate Judge has recommended dismissal without leave to amend, merits the following additional consideration.
In Claim 1, Plaintiff alleges that prison guards framed him, resulting in his "validation," i.e., a finding that he is an active criminal gang associate. As a result, he was placed, and has repeatedly been retained, in the Security Housing Unit (SHU). All the while, he forgoes the good-time sentencing credit that he otherwise would earn. CAL. CODE REGS. tit. 15, § 3043.4(b). The guards did this, Plaintiff alleges, in retaliation for his pursuit of First Amendment-protected grievance activities. The critical question raised by the Magistrate Judge in the Report and Supplement is whether the "favorable termination rule" of Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994), and Heck's progeny bars such a claim so long as the underlying validation has not yet been set aside. To decide this question, the Court must examine (1) the elements of a successful retaliation claim, (2) the nature and scope of the Heck favorable termination rule and, as persuasive but not binding authority, (3) the outcomes in the few legally and factually similar cases in this and other District Courts in California.
II. PRISONERS' RETALIATION CLAIMS, AND BRUCE V. YLST
Allegations of retaliation against a prisoner's First Amendment rights to speech or to petition the government may support a section 1983 claim. See Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). In the prison context, a viable claim of First Amendment retaliation entails five basic elements:
(1) a state actor took some adverse action against an inmate
(3) that prisoner's protected conduct;
(4) such action chilled the inmate's exercise of his First Amendment rights (although a complete silencing of the prisoner is not required); and
(5) the defendants took their adverse action without legitimate penological goals.
See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (stating, as element 5, the result-oriented test whereby plaintiff must show "the action did not reasonably advance a legitimate correctional goal"); Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003) (stating, as element 5, the intent-oriented test whereby "the prisoner plaintiff 'bears the burden of pleading and proving the absence of legitimate correctional goals for the conduct of which he complains'"), quoting Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). An allegation of ...