FILED
NOT FOR PUBLICATION MAR 18 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ENRIQUE DIAZ, No. 13-16104
Plaintiff - Appellant, D.C. No. 5:13-cv-00621-EJD
v.
MEMORANDUM*
M. PEREZ; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Submitted March 10, 2014**
Before: PREGERSON, LEAVY, and MURGUIA, Circuit Judges
Enrique Diaz, a California state prisoner, appeals pro se the district court’s
judgment dismissing his 42 U.S.C. § 1983 action alleging retaliation. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo. Whitaker v. Garcetti,
486 F.3d 572, 579 (9th Cir. 2007) (dismissal under Heck v. Humphrey, 512 U.S.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
477 (1994)); Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (dismissal under
28 U.S.C. § 1915A). We affirm in part, reverse in part, and remand.
To the extent that Diaz’s action was premised on the issuance of a false rules
violation report, which led to his loss of good time credits, the district court
properly dismissed the action as Heck-barred. See Edwards v. Balisok, 520 U.S.
641, 645 (1997) (challenge to loss of good-time credits not cognizable under
§ 1983).
The district court properly dismissed Diaz’s retaliation claim against
defendants Ambriz, Binkle, Dixon, Kessler, McKelroy, and Solis because Diaz
failed to allege facts sufficient to show retaliation. See Rhodes v. Robinson, 408
F.3d 559, 567-68 (9th Cir. 2005) (elements of a retaliation claim in the prison
context); Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995) (the timing of adverse
actions alone is insufficient to establish retaliatory intent).
The district court properly dismissed Diaz’s retaliation claim alleging that
defendant Perez threatened him immediately after his cell mate’s assault and later
denied his requests to go outdoors or to a medical unit due to “toxic fumes.” See
Rhodes, 408 F.3d at 567-68 (requiring protected activity and causal link).
However, to the extent that Diaz claimed that Perez issued a third false rules
violation report, threatened to issue additional write-ups, and redistributed his
2 13-16104
property to other inmates, Diaz stated a cognizable retaliation claim by alleging,
among other things, facts sufficient to show causal link and chilling. See id. at
567-69 (discussing the elements of a retaliation claim, including the causal link and
chilling requirements); see also Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir.
2012) (reversing dismissal under § 1915A where allegations in pro se complaint
were “sufficient to meet the low threshold for proceeding past the screening
stage”). Accordingly, we reverse and remand for further proceedings as to these
parts of Diaz’s claim against Perez only.
The district court properly dismissed Diaz’s retaliation claim alleging that
defendant Pennisi threatened him immediately after his cell mate’s assault and
threatened him in connection with his testimony. See Rhodes, 408 F.3d at 567-68
(requiring protected activity and causal link).
However, to the extent that Diaz claimed that Pennisi required that he
withdraw an informal complaint or be subject to a cell move or administrative
segregation, Diaz stated a cognizable retaliation claim by alleging, among other
things, facts sufficient to show causal link and chilling. See id. at 567-69; see also
Wilhelm, 680 F.3d at 1123. Accordingly, we reverse and remand for further
proceedings as to these parts of Diaz’s claim against Pennisi only.
AFFIRMED in part; REVERSED in part; and REMANDED.
3 13-16104