United States District Court, N.D. California
ORDER OF PARTIAL DISMISSAL; AND SERVING COGNIZABLE
M. RYU, United States Magistrate Judge
a state prisoner, filed a pro se civil rights action
pursuant to 42 U.S.C. § 1983 stemming from his
incarceration at Pelican Bay State Prison
(“PBSP”). Plaintiff has consented to magistrate
judge jurisdiction, and this matter has been assigned to the
undersigned Magistrate Judge. Dkt. 1 at 6. He has also filed
a motion for leave to proceed in forma pauperis,
which will be granted in a separate written Order.
is proper because the events giving rise to Plaintiff's
claims are alleged to have occurred at PBSP, which is located
in this judicial district. See 28 U.S.C. §
names the following Defendants from PBSP: Lieutenant R.
Graves; Correctional Officer D. Trone; Sergeant R. Navarro;
and Warden R. E. Barnes. Plaintiff seeks monetary and
STANDARD OF REVIEW
federal court must engage in a preliminary screening of any
case in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental entity.
See 28 U.S.C. § 1915A(a). The court must
identify any cognizable claims, and dismiss any claims which
are frivolous, malicious, fail to state a claim upon which
relief may be granted, or seek monetary relief from a
defendant who is immune from such relief. See 28
U.S.C. §1915A(b)(1), (2).
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege two elements: (1) that a right secured by the
Constitution or laws of the United States was violated and
(2) that the violation was committed by a person acting under
the color of state law. See West v. Atkins, 487 U.S.
42, 48 (1988).
First Amendment and Due Process Claims
7, 2013, Plaintiff received a memorandum labeled,
“Pelican Bay State Prison Hunger Strike Informational
Sheet-Refusing Food or Drink.” Dkt. 1 at
In this memorandum, Plaintiff was informed that refusing food
was an inmate's right and choice. Id. From July
7, 2013 through July 10, 2013, Plaintiff “declined to
eat the food offered to him because PBSP officials issued
[him] a paper saying that it was his right to refuse to eat .
. . .” Id. at 15.
16, 2013, Defendant Navarro “retaliated against this
plaintiff for exercising this right to refuse food or drinks
by issuing this plaintiff a rules violation report (RVR) Log
no. C13-07-0005 . . . .” Id. at 3. Plaintiff
claims that Defendant Navarro's disciplinary action was
an adverse action taken because of Plaintiff exercised his
right to free speech by participating in a hunger strike,
i.e., a protected conduct. Liberally construed, Plaintiff
states a cognizable claim of retaliation against Defendant
Due Process Claim
17, 2013, Defendant Trone “issue[d] this plaintiff the
RVR that [Defendant] Navarro had reported . . . .”
Id. at 4. Defendant Trone then informed Plaintiff
that he was going to serve as Plaintiff's
“Investigative Employee (IE), ” to which
Plaintiff had no objection. Id. Plaintiff asked
Defendant Trone for a copy of “Operational Procedure
228 (OP 228) that was utilize[d] inside the report against
Plaintiff because Plaintiff ...