United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES, UNITED STATES MAGISTRATE JUDGE
Bella-Christina Birrell, is a state prisoner proceeding pro
se and in forma pauperis with a complaint under 42 U.S.C.
§ 1983. Therein, Birrell asserts federal claims under
the First and Fourteenth Amendments, as well as state claims
for defamation and negligence. The gravamen of Birrell's
claims is that defendants violated her rights by falsifying a
report about her and excluding her from certain activities
because of her gender.
Joyce Banzhaf, who is proceeding pro se, moves to dismiss
Birrell's claims against her on various grounds.
Birrell's § 1983 claims against Banzhaf are not
cognizable because she not adequately alleged that Banzhaf
was acting under color of state law. However, Birrell has
stated a cognizable state-law claim that Banzhaf defamed her.
Accordingly, as discussed below, the motion to dismiss should
be granted in part and denied in part.
is a transgender inmate at the California Medical Facility
(“CMF”), a medical/correctional facility located
in Vacaville, California. (Sec. Am. Compl. ¶ 3 (ECF No.
14).) The following current and former defendants are
relevant to Banzhaf's motion to dismiss.
was the “Lead Coordinator” of the
“Alternatives to Violence Project.” (Id.
¶ 7.) The Alternatives to Violence Project
(“AVP”) “is an independ[e]nt, non-profit
organization providing workshops on preventing violence among
inmates within the California Department of Corrections and
Rehabilitation [‘CDCR'] . . . .”
(Id.) The AVP program “is sponsored [by] and
works under the direct auspices, supervision and
authority” of the CDCR.” (Id. ¶ 8.)
Banzhaf's function was to “coordinate” the
AVP program at CMF. (Id.) Former defendant Kary
Shender was also an AVP coordinator whose function was to
assist in coordinating the program. (Id. ¶ 10.)
Landon Bravo started to work at CMF at an unspecified time.
(See id. ¶ 12.) Bravo took over as
“Community Resource Manager” in the spring of
2012. (See id. ¶¶ 46, 49.) As Community
Resource Manager, Bravo was the “director
supervisor” of Banzhaf and Shender. (Id.
¶ 12.) Bravo was also responsible for authorizing the
AVP program and for Banzhaf and Shender to conduct it.
(Id. ¶ 12.) Pursuantly, Bravo “created
and implemented policies and procedures” for Banzhaf
and Shender to carry out. (Id.) Bravo also had to
ensure that Banzhaf and Shender complied with state and
federal law in coordinating the AVP program. (See
id. ¶ 27.) According to Birrell, Bravo was acting
“under [the] color . . . of state law” at all
times relevant to the second amended complaint. (Id.
¶ 13; see also id. ¶ 95.)
second amended complaint contains several allegations
regarding Bravo's delegation of authority over the AVP
program to Banzhaf. Birrell alleges that, at all relevant
times, Banzhaf “was acting on behalf of, and with the
permission, authority and approval” of Bravo.
(Id. ¶ 9.) Birrell further alleges that Bravo
authorized Banzhaf to act “under color . . . of [s]tate
law . . . as a ‘de jure' [a]gent of the
[s]tate.” (Id.) Yet Birrell alleges that
Banzhaf was “forbidden and prohibited from carrying out
the duties, tasks, and administrative responsibilities of
[Bravo].” (Id. ¶ 29; see also
id. ¶ 114.)
2007, the AVP program began holding workshops at CMF
“to teach inmates of the CDCR alternative, peaceful
ways of dealing with disputes.” (Id. ¶
35.) Over time, “favoritism was . . . employed in the
selection of inmates who were being chosen to participate in
the workshops and other AVP activities.” (Id.)
Birrell characterizes these favored inmates as the
“Inmate Special Interest Group.” (Id.
February 2010, to challenge this favoritism, Birrell and
other inmates “filed a Group/Class Action Inmate
Administrative Appeal [‘group appeal'].”
(Id.) On March 17, 2010, Birrell, Banzhaf, and
Shender attended a meeting for the purpose of addressing the
concerns the raised in the group appeal. (Id. ¶
41.) According to Birrell, Shender left the meeting and told
the Inmate Special Interest Group what was being said in the
meeting, what the contents of the group appeal were, and who
had signed the appeal. (Id. ¶ 42.) As a result,
“serious and hostile confrontations” broke out
between the Special Inmate Interest Group and the group
appeal participants. (Id. ¶ 43.) These
confrontations lasted “for months.”
March 30, 2010, the warden partially granted the appeal based
on the determination that the “procedures for
monitoring the selection of inmate participants and
facilitators within the AVP [p]rogram were flawed.”
(Id. at 63.) In response, new procedures “were
created to better monitor the [AVP] [p]rogram and the
selection of inmates as participants and facilitators.”
(Id.) Some months later, due to continuing problems
with the administration of the program, Banzhaf and Shender
were removed from CMF and barred from operating the program
“until they would agree to follow all of the applicable
CDCR rules, regulations and policies.” (Id.
spring of 2012, the program returned to CMF “in an
attempt to restart . . . without all of the . . . corruption
that had caused its shut-down in 2010.” (Id.
¶ 46.) During this period, Birrell and the inmates who
had pursued the group appeal were being harassed and
mistreated as a result of the “wrongful dissemination
of the [allegedly] confidential information contained in said
appeal.” (Id. ¶ 50.) The same inmates
were also “being deliberately excluded from
participation in the new . . . program that was being
re-started at CMF.” (Id.)
Birrell's words, this “covert punishment [was]
being inflicted on the [a]ppellants for engaging in a
[c]onstitutionally protected activity.” (Id.)
Birrell also attributes this harassment to her being a
“transgender or gender non-conforming
individual.” (Id. ¶ 47.)
that time, Banzhaf and Shender turned over control of the AVP
program to a group of inmates similar to the Inmate Special
Interest Group. (Id. ¶ 52.) These inmates
worked for “Volunteers of Vacaville.”
(Id.) They also were “deciding who would be
participating as workshop facilitators.” (Id.)
2012, Birrell attended a workshop for facilitators of the AVP
program. (Id. ¶¶ 53, 55.) Jose Sandoval
participated in this workshop. (Id. ¶ 54.)
Sandoval was an inmate who worked for Volunteers of Vacaville
and “performed clerical duties for the AVP
program.” (Id. ¶¶ 24, 83.) Sandoval
“announced to the entire group in attendance”
that Bravo had authorized him to “write CDCR 128
[General] Chronos” on Bravo's behalf. (Id.
¶ 54.) “General Chrono [i.e., chronological
report] means a CDC[R] Form 128-B . . . which is used to
document information about inmates and inmate
behavior.” Cal. Code Regs. tit. 15, § 3000;
see also Perrotte v. Sullivan, No.
1:08-cv-01804-AWI-JLT HC, 2010 WL 476006, at *2 (E.D. Cal.
Feb. 4, 2010), report and recommendation adopted,
No. 1:08-cv-01804-AWI-JLT HC (Mar. 17, 2010).
alleges that, after the July 2012 AVP workshop, she was
“consistently and repeatedly passed over” to be a
facilitator. (Sec. Am. Compl. ¶ 55 (ECF No. 14).) She
further alleges that “other similarly situated inmates
who meet the stereotypical male prison appearance  were . .
. repeatedly and consist[e]ntly used.” (Id.
¶ 55.) Birrell adds that Banzhaf “personally
ordered” her exclusion from the AVP program.
(Id. ¶ 57.)
January 3, 2013, Birrell asked Bravo why “inmates who
had signed the appeal in 2010 were being excluded and
passed over from attending the AVP workshops.”
(Id. ¶ 61.) Bravo informed Birrell that he no
longer ran the program and had delegated control of it to
unspecified individuals. (Id. ¶ 63.) Bravo also
told Birrell that she should talk to Banzhaf. (Id.
next day, Birrell went to see Banzhaf but instead encountered
Shender. (Id. ¶ 65.) Birrell told Shender that
she wanted to talk to Banzhaf “to do a follow-up on
some of the issues that had been decided in the previous
[group appeal].” (Id.)
April 2013, Birrell discovered a general chrono (“first
chrono”) purporting to be electronically signed by
Banzhaf. (Id. at 69.) The first chrono also bore the
handwritten, printed initials “LB.”
(Id.) According to the first chrono, Birrell went to
a workshop on January 4, 2013 and tried to convince Shender
to put Sidney Ross Deegan, Jr., an inmate and co-signer of
the 2010 group appeal, on the list of participants. (See
id.; see also id. ¶ 60.) The first chrono
further stated that “Birrell told [Shender] I want this
to be resolved amicably or it could go the way it went the
other time.” (Id. at 69.)
alleges that the first chrono “was a false . . .
document containing a concocted, false allegation that . . .
[she] . . . made a ‘veiled' threat” to
Shender. (Id. ¶ 67.) Further, Birrell alleges
that the first chrono was written to retaliate against her
for participating in the group appeal. (Id.
¶¶ 98, 109.)
thereafter, Birrell filed an inmate appeal based on her
belief that an inmate wrote the first chrono or that
“Bravo had written [it] for some . . . nefarious
purpose since the information contained in [it] was
untrue.” (Id. ¶ 71.) However, during an
administrative investigation, Bravo denied knowledge of the
first chrono. (Id. at 65; see also id.
16, 2013, Banzhaf faxed CDCR staff a copy of the first chrono
(“second chrono”). (Id. ¶ 74;
see also id. at 76.) Although the second
chrono's narrative was the same as that of the first, the
second purported to contain the handwritten signature of
Banzhaf. (Id. at 70; see also id. ¶
75.) A few days later, Banzhaf stated via email that she
wanted the chrono to remain in Birrell's file.
(Id. at 76; see also id. ¶ 74.)
17, 2013, the associate warden issued a first-level appeal
response. (Id. at 74.) Although the associate warden
granted Birrell's request for “no retaliation,
” he denied her request for removal of the chrono from
her central file “due to the chrono being informational
in nature.” (Id.) A week later, the warden
issued a second-level appeal response. (Id. at 75.)
The warden likewise denied Birrell's request for removal
of the chrono, reasoning that it was
“informational” and not
“disciplinary.” (Id. at 76.)
August 21, 2013, Birrell went before the parole board.
(Id. ¶81.) The district attorney allegedly
cited the falsified chrono in stating that Birrell “was
manipulating staff and making indirect threats.”
(Id. ¶ 81.) According to Birrell, this action
resulted in her “receiving a five (5) year denial after
serving some thirty-plus (30) years without any
disciplinary write-ups.” (Id.) Birrell also
alleges that the false chrono “would forever follow
[her] and be later used by the parole board to deny [her] a
future parole date.” (Id. ¶ 97.)
the pendency of Birrell's third-level appeal, she
discovered that AVP program documents “were being kept
. . . at the Volunteers of Vacaville, and were under the
direct control of the very same group of [inmates] that had
been prohibited from having any access to said . . . records
based on the appeal decision of 2010.” (Id.
¶ 80.) Based on this discovery, Birrell told Bravo in
November 2014 that inmates had written the chrono, forged his
initials on it, and placed it ...