Herrera v. Ortega

Background

Joshua S. Herrera, a state prisoner, filed this action without a lawyer under 42 U.S.C. § 1983, a law allowing claims against people acting under state authority for violating federal rights. He sued prison staff and an appeals examiner concerning a confidential memo placed in his file and events that followed his grievance about the memo. The court had previously dismissed the original complaint with leave to amend. Herrera filed an amended complaint.

Claims and analysis

Herrera alleged that J. Ortega, R. Castillo, B. Duran, and R. Cardona tried to intimidate him into withdrawing a prison appeal. After he refused, he alleged that they searched his cell in retaliation and intimidated him from pursuing other appeals. The court held that these allegations were sufficient to state a First Amendment retaliation claim.

Herrera also claimed that the defendants violated a constitutional right to file prison appeals. The court dismissed that part of the claim because prisoners do not have a constitutional right to a prison grievance or appeals system, and do not have a constitutional right to receive a particular response or result from such an appeal.

Herrera separately challenged the cell search under the Fourth Amendment. The court dismissed that claim for failure to state a claim, explaining that a prisoner has no legitimate expectation of privacy in a prison cell.

Herrera asserted retaliation and appeal-related claims against M. Valdez and G. Bickham based on their denials of his appeal at the second and third levels of review. The court dismissed the claims based on a right to have the appeal processed. It held, however, that Herrera sufficiently alleged retaliation because he claimed Valdez and Bickham knew there was no evidence supporting the memo, did not advance a legitimate correctional goal, and intimidated him from pursuing further appeals.

Finally, Herrera alleged that placing the confidential memo in his file and refusing to remove it violated Fourteenth Amendment due process. The court dismissed that claim with leave to amend. It explained that Herrera had not alleged how the memo negatively affected his prison conditions or otherwise caused a deprivation requiring procedural protections. The court stated that any deprivation must involve a serious hardship compared with ordinary prison life or action that would inevitably affect the length of his sentence.

Disposition

The court dismissed the Fourth Amendment claim and the claims based on a right to process prison appeals for failure to state cognizable claims. The court identified retaliation claims against J. Ortega, R. Castillo, B. Duran, R. Cardona, M. Valdez, and G. Bickham as cognizable. It dismissed the Fourteenth Amendment due-process claim against Castillo and R. Mojica with leave to amend.

Judge Beth Labson Freeman gave Herrera 28 days to file a second amended complaint using the court’s form and including the required case information. Alternatively, Herrera could notify the court that he wished to strike the due-process claim and proceed only with the retaliation claim. The court stated that failure to respond would result in the case proceeding solely on the retaliation claim.