discussing 13 “under color of state law”
How later courts described this case
- discussing 13 “under color of state law”
- no 7 liberty interest in processing of appeals because no entitlement to a specific grievance 8 procedure
- “timing can properly be considered as circumstantial evidence of retaliatory intent”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
10
11 CEDRIC LYNN STRUGGS, 1:18-cv-01336-GSA-PC
12 Plaintiff, SCREENING ORDER
13 vs. ORDER DISMISSING COMPLAINT FOR
FAILURE TO STATE A CLAIM AND
14 C. PFEIFFER, et al., VIOLATION OF RULE 18, WITH
LEAVE TO AMEND
15 Defendants. (ECF No. 1.)
16 THIRTY-DAY DEADLINE TO FILE
FIRST AMENDED COMPLAINT
17
18
19 I. BACKGROUND
20 Cedric Lynn Struggs (“Plaintiff”) is a state prisoner proceeding pro se with this civil
21 rights action pursuant to 42 U.S.C. § 1983. On September 27, 2018, Plaintiff filed the
22 Complaint commencing this action, which is now before the court for screening. 28 U.S.C. §
23 1915A. (ECF No. 1.)
24 II. SCREENING REQUIREMENT
25 The court is required to screen complaints brought by prisoners seeking relief against a
26 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).
27 The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are
28 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or
1 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.
2 § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been
3 paid, the court shall dismiss the case at any time if the court determines that the action or
4 appeal fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
5 A complaint is required to contain “a short and plain statement of the claim showing
6 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are
7 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
8 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
9 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are
10 taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart
11 Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).
12 To state a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to
13 ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678-79; Moss v. U.S.
14 Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as
15 true, legal conclusions are not. Id. The mere possibility of misconduct falls short of meeting
16 this plausibility standard. Id.
17 III. SUMMARY OF PLAINTIFF’S COMPLAINT
18 Plaintiff is presently incarcerated at Kern Valley State Prison (KVSP) in Delano,
19 California, where the events at issue in the Complaint allegedly occurred. Plaintiff names as
20 defendants: C. Pfeiffer (Warden), O. Goss (Chief Deputy Warden), Captain J. Hanzak,
21 Lieutenant (Lt.) Sandoval, Lt. C. Waddle, Sergeant (Sgt.) J. Anderson, Sgt. R. Chanelo, Officer
22 J. Hightower, R. Santillan (SnE Officer), C. Gonzales (Appeals Coordinator), R. Jaramillo
23 (CCI), Suarez (CCI), E. Chesley (ISU), R. Hernandez (ISU), Doe #1 (ISU), Sgt. Lozono (ISU),
24 S. Lone (ISU), and M. Voong (Chief Office of Appeals) (collectively “Defendants”).
25 A summary of Plaintiff’s allegations follows.
26 August 30, 2017 Cell Search, Rules Violation Reports, and Hearing
27 Plaintiff shared a cell with inmate Yearwood at KVSP. On August 30, 2017, defendant
28 Hightower and Officer Lopez [not a defendant] conducted a search of the inmates’ cell and
1 subjected them to unclothed body searches. A medical report was generated by the MTA and
2 afterward defendant Sgt. Anderson asked the inmates who had drugs. Both inmates denied it
3 and they were allowed to return to their cell.
4 On November 20, 2017, Plaintiff was called out of his cell for an interview about the
5 “RVR you received regarding controlled substance.” Compl. at 16. Plaintiff said he did not
6 receive an RVR, and the interview ended.
7 On November 22, 2017, defendant Santillan came to the inmates’ cell with RVRs for
8 both of them, began to read the RVRs, and then asked the inmates if they wanted to request
9 postponement, witnesses, an investigation, and staff assistance. Both inmates said yes, signed
10 and dated the applicable forms, and were told to give a list of witnesses to their investigative
11 employee (IE).
12 On November 30, 2017, defendant Santillan returned to the cell and told the inmates
13 there was a mix-up with the first RVR and she was there to give them a second RVR, which
14 she slid under the door. Plaintiff objected because Santillan did not allow them to sign a new
15 form for the new RVR requesting postponement, witnesses, an investigation, and staff
16 assistance. Defendant Santillan said she would use the first form they had signed and told them
17 to talk to her supervisor if they had questions. Plaintiff filed form 22 Requests and 602
18 Appeals for clarification about the two RVRs that had been issued and the improper
19 procedures, but did not receive satisfactory answers.
20 On December 8, 2017, Plaintiff spoke to defendant Chanelo, who was defendant
21 Santillan’s supervisor, and Chanelo said that yes, she had told Santillan to issue the second
22 RVR. Plaintiff told Chanelo that the proper procedures were not being followed. Chanelo told
23 Plaintiff he could file a 602 Appeal if he disagreed with the hearing officer’s decision at the
24 RVR hearing. Plaintiff again submitted form 22 Requests and 602 Appeals, which were not
25 answered to Plaintiff’s satisfaction.
26 On February 5, 2018, defendant Senior Hearing Officer Lt. Waddle held a hearing on
27 Plaintiff’s RVR (115 hearing). Plaintiff complained that he was not given advance notice and
28 was not ready for the hearing. Lt. Waddle read the charges and Plaintiff pleaded “not guilty.”
1 Compl. at 18. Plaintiff then argued with Lt. Waddle and was escorted out of the office by Sgt.
2 Brown for being disruptive and disrespectful. Plaintiff again submitted form 22 Requests and
3 602 Appeals, which were not answered to Plaintiff’s satisfaction.
4 May 15, 2018 & July 14, 2018 Cell Searches -- Typewriter Springs
5 On May 15, 2018, Plaintiff and inmate Wells were pulled out of their cells for a cell
6 search by defendants Chesley, Hernandez, and Doe #1 (ISU). When the inmates returned they
7 found three springs and could not figure out why the springs were left in the cell. The next day
8 Plaintiff realized that the three springs came out of his typewriter. Plaintiff submitted 22 form
9 Requests and 602 Appeals in an effort to resolve the issue.
10 On July 14, 2018, Plaintiff was again pulled out of his cell. He was strip-searched in
11 the dayroom, and his cell was searched. When Plaintiff returned he looked for his typewriter
12 and noticed that the bag of springs that were attached to Plaintiff’s 602 Appeal had been
13 removed. Plaintiff sent form 22 Requests and a 602 Appeal.
14 July 5, 2018 Cell Search
15 On July 5, 2018, Plaintiff and inmate Wells were pulled out for a cell search by
16 defendants Lozono and Lone. When the inmates returned defendant Lozono told Plaintiff he
17 was there to discuss the 602 Appeal that Plaintiff had filed. Plaintiff asked Lozono why he had
18 searched the cell if he was there for a 602 hearing, and Lozono said “because I can.” Compl. at
19 19. Plaintiff responded to Lozono that the cell search was retaliation because Plaintiff had filed
20 a 602 Appeal against Lozono’s staff. Lozono said, “Do what you have to do, but I am denying
21 your 602.” Id.
22 Relief Requested
23 Plaintiff requests monetary damages and injunctive relief.
24 IV. PLAINTIFF’S CLAIMS
25 A. 42 U.S.C. § 1983
26 The Civil Rights Act under which this action was filed provides:
27 Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes
28 to be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
1 secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress . . . .
2
3 42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely
4 provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor,
5 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see
6 also Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los
7 Angeles, 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir.
8 2012); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006).
9 To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted
10 under color of state law and (2) the defendant deprived him of rights secured by the
11 Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.
12 2006); see also Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing
13 “under color of state law”). A person deprives another of a constitutional right, “within the
14 meaning of § 1983, ‘if he does an affirmative act, participates in another’s affirmative act, or
15 omits to perform an act which he is legally required to do that causes the deprivation of which
16 complaint is made.’” Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th
17 Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite
18 causal connection may be established when an official sets in motion a ‘series of acts by others
19 which the actor knows or reasonably should know would cause others to inflict’ constitutional
20 harms.” Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of
21 causation “closely resembles the standard ‘foreseeability’ formulation of proximate cause.”
22 Arnold v. Int’l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City
23 of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008).
24 B. Unrelated Claims -- Rule 18 Violation
25 Plaintiff alleges multiple claims in the Complaint that are unrelated under Rule 18 of the
26 Federal Rules of Civil Procedure. Plaintiff may not proceed in one action on a myriad of
27 unrelated claims against different staff members. “The controlling principle appears in Fed. R.
28 Civ. P. 18(a): ‘A party asserting a claim to relief as an original claim, counterclaim, cross-
1 claim, or third-party claim, may join, either as independent or as alternate claims, as many
2 claims, legal, equitable, or maritime, as the party has against an opposing party.’ Thus multiple
3 claims against a single party are fine, but Claim A against Defendant 1 should not be joined
4 with unrelated Claim B against Defendant 2. Unrelated claims against different defendants
5 belong in different suits, not only to prevent the sort of morass [a multiple claim, multiple
6 defendant] suit produce[s], but also to ensure that prisoners pay the required filing fees-for the
7 Prison Litigation Reform Act limits to 3 the number of frivolous suits or appeals that any
8 prisoner may file without prepayment of the required fees. 28 U.S.C. ' 1915(g).” George v.
9 Smith, 507 F.3d 605, 607 (7th Cir. 2007).
10 In this case, Plaintiff’s Complaint alleges three claims that are unrelated under Rule 18
11 of the Federal Rules of Civil Procedure:
12 (1) the August 30, 2017 Cell Search, Rules Violation Reports, and Hearing;
13 (2) the May 15, 2018 & July 14, 2018 Cell Searches -- Typewriter Springs; and
14 (3) the July 5, 2018 Cell Search.
15 Plaintiff will not be permitted to pursue unrelated claims in this action. Therefore, the
16 Complaint shall be dismissed for violation of Rule 18, with leave to amend. In amending,
17 Plaintiff must choose only one of the three incidents listed above to pursue in this case and re-
18 allege those claims only.
19 C. Personal Participation - Supervisory Liability
20 In the Complaint, Plaintiff alleges that all of the Defendants are responsible for their
21 employees and staff. Compl. at 15-16. To the extent that Plaintiff believed that each of the
22 Defendants is liable for the acts of their employees and staff, Plaintiff is incorrect.
23 Plaintiff is advised that “[l]iability under [§] 1983 arises only upon a showing of
24 personal participation by the defendant. A supervisor is only liable for the constitutional
25 violations of . . . subordinates if the supervisor participated in or directed the violations, or
26 knew of the violations and failed to act to prevent them. There is no respondeat superior
27 liability under [§] 1983.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citations
28 omitted). Plaintiff must demonstrate that each defendant, through his or her own individual
1 actions, violated Plaintiff=s constitutional rights. Iqbal, 556 U.S. at 676; Corales v. Bennett,
2 567 F.3d 554, 570 (9th Cir. 2009). Accordingly, Plaintiff must demonstrate that each
3 defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d
4 930, 934 (9th Cir. 2002) (emphasis added). Plaintiff must demonstrate that each defendant,
5 through his or her own individual actions, violated Plaintiff’s constitutional rights. Iqbal, 556
6 U.S. at 676-77.
7 Section 1983 plainly requires that there be an actual connection or link between the
8 actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See
9 Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978);
10 Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). The Ninth Circuit has held
11 that “[a] person ‘subjects’ another to the deprivation of a constitutional right, within the
12 meaning of section 1983, if he does an affirmative act, participates in another’s affirmative acts
13 or omits to perform an act which he is legally required to do that causes the deprivation of
14 which complaint is made.” Johnson, 588 F.2d at 743. In order to state a claim for relief under
15 section 1983, Plaintiff must link each named defendant with some affirmative act or omission
16 that demonstrates a violation of Plaintiff’s federal rights.
17 D. Official and Individual Capacity
18 Plaintiff brings this action against Defendants in their official and individual capacities.
19 Plaintiff may not bring a suit for damages against Defendants in their official capacities. AThe
20 Eleventh Amendment bars suits for money damages in federal court against a state, its
21 agencies, and state officials in their official capacities.@ Aholelei v. Dept. of Public Safety, 488
22 F.3d 1144, 1147 (9th Cir. 2007) (citations omitted). However, the Eleventh Amendment does
23 not bar suits seeking damages against state officials in their personal capacities, Hafer v. Melo,
24 502 U.S. 21, 30 (1991); Porter v. Jones, 319 F.3d 483, 491 (9th Cir. 2003), or suits for
25 declaratory or injunctive relief brought against state officials in their official capacities, Austin
26 v. State Indus. Ins. System, 939 F.2d 676, 680 fn.2 (9th Cir. 1991). Therefore, Plaintiff fails to
27 state a claim for damages against Defendants in their official capacities, but he is not barred by
28 the Eleventh Amendment from seeking injunctive or declaratory relief against Defendants in
1 their official capacities, or from seeking money damages from Defendants in their individual
2 capacities.
3 E. Due Process -- RVR Hearing
4 The Due Process Clause protects against the deprivation of liberty without due process
5 of law. Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 2393 (2005). In order to
6 invoke the protection of the Due Process Clause, a plaintiff must first establish the existence of
7 a liberty interest for which the protection is sought. Id. Liberty interests may arise from the
8 Due Process Clause itself or from state law. Id.
9 Under state law, the existence of a liberty interest created by prison regulations is
10 determined by focusing on the nature of the deprivation. Sandin v. Conner, 515 U.S. 472, 481-
11 84, 115 S.Ct. 2293 (1995). Liberty interests created by state law are “generally limited to
12 freedom from restraint which . . . imposes atypical and significant hardship on the inmate in
13 relation to the ordinary incidents of prison life.” Id. at 484; Myron v. Terhune, 476 F.3d 716,
14 718 (9th Cir. 2007).
15 Here, Plaintiff alleges that his rights to due process were violated before and during his
16 RVR hearing. Plaintiff alleges that proper procedures were not followed when defendant
17 Santillan would not allow him to sign a new form for the new RVR requesting postponement,
18 witnesses, an investigation, and staff assistance. Plaintiff also alleges that he was not given
19 advance notice of the RVR hearing and therefore was not ready for the hearing when it took
20 place.
21 While Plaintiff has rights to due process before he is deprived of a protected liberty or
22 and property interest, here Plaintiff fails to show that he was deprived of a protected interest for
23 which due process was due. Plaintiff brings no allegations that he was retained in
24 administrative segregation, suffered a loss of time credits, or otherwise disciplined as a result of
25 the process followed when the second RVR was issued, or when the RVR hearing was held.1
26
27
1 Plaintiff requests as relief in the Complaint “expunge[ment of] the disciplinary convictions
28 described in this complaint from the Plaintiff’s institutional record,” but there are no allegations in the Complaint
that Plaintiff was convicted of rules violations or otherwise disciplined. Compl. at 26-27.
1 Therefore, Plaintiff fails to state a due process claim for issuance of the second RVR or for
2 disciplinary action against him following the RVR hearing.
3 F. Appeals Process
4 Some of Plaintiff’s allegations pertain to the review and handling of Plaintiff’s inmate
5 requests, grievances, and appeals. “[I]nmates lack a separate constitutional entitlement to a
6 specific prison grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no
7 liberty interest in processing of appeals because no entitlement to a specific grievance
8 procedure), citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). “[A prison] grievance
9 procedure is a procedural right only, it does not confer any substantive right upon the inmates.”
10 Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982) accord Buckley v. Barlow, 997 F.2d
11 494, 495 (8th Cir. 1993); see also Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001)
12 (existence of grievance procedure confers no liberty interest on prisoner). “Hence, it does not
13 give rise to a protected liberty interest requiring the procedural protections envisioned by the
14 Fourteenth Amendment.” Azeez, 568 F. Supp. at 10; Spencer v. Moore, 638 F. Supp. 315, 316
15 (E.D. Mo. 1986).
16 Actions in reviewing a prisoner’s administrative appeal generally cannot serve as the
17 basis for liability in a section 1983 action. Buckley, 997 F.2d at 495. The argument that
18 anyone who knows about a violation of the Constitution, and fails to cure it, has violated the
19 Constitution himself is not correct. “Only persons who cause or participate in the violations are
20 responsible. Ruling against a prisoner on an administrative complaint does not cause or
21 contribute to the violation.” Greeno v. Daley, 414 F.3d 645, 656-57 (7th Cir. 2005) accord
22 George, 507 F.3d at 609-10; Reed v. McBride, 178 F.3d 849, 851-52 (7th Cir. 1999); Vance v.
23 Peters, 97 F.3d 987, 992-93 (7th Cir. 1996); Haney v. Htay, No. 1:16-CV-00310-AWI-SKO-
24 PC, 2017 WL 698318, at *4–5 (E.D. Cal. Feb. 21, 2017).
25 Therefore, Plaintiff's allegations pertaining to Defendants’ failure to properly process
26 his inmate requests and appeals fail to state a cognizable claim.
27 ///
28 ///
1 G. Loss of Personal Property -- Due Process
2 Plaintiff alleges that Defendants confiscated three springs from his typewriter when his
3 cell was searched.
4 Prisoners have a protected interest in their personal property. Hansen v. May, 502 F.2d
5 728, 730 (9th Cir. 1974). However, a plaintiff has no due process claim based on Defendants’
6 unauthorized deprivation of his personal property—whether intentional or negligent—if a
7 meaningful state post-deprivation remedy for his loss is available. See Hudson v. Palmer, 468
8 U.S. 517, 533 (1984). California’s tort claim process provides that adequate post-deprivation
9 remedy. Barnett v. Centoni, 31 F.3d 813, 816–17 (9th Cir. 1994) (citing Cal. Gov’t Code §§
10 810–895) (“[A] negligent or intentional deprivation of a prisoner’s property fails to state a
11 claim under section 1983 if the state has an adequate post deprivation remedy.”); see also
12 Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1120 (S.D. Cal. 2007); Kemp v. Skolnik, No. 2:09-
13 CV-02002-PMP, 2012 WL 366946, at *6 (D. Nev. Feb. 3, 2012) (finding prisoner’s alleged
14 loss or destruction of newspaper, magazines, and books failed to state a Fourteenth Amendment
15 claim pursuant to Hudson and noting that “[i]f Plaintiff wishes to recoup the value of the
16 alleged lost materials, he will have to file a claim in small claims court in state court.”).
17 Therefore, Plaintiff fails to state a claim for Defendants’ confiscation of the springs
18 from his typewriter or other personal property.
19 H. Equal Protection -- Discrimination
20 Plaintiff alleges that he was subject to discrimination by Defendants.
21 The Equal Protection Clause requires the State to treat all similarly situated people
22 equally. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87
23 L.Ed.2d 313 (1985). This does not mean, however, that all prisoners must receive identical
24 treatment and resources. See Cruz v. Beto, 405 U.S. 319, 322 n. 2 (1972); Ward v. Walsh, 1
25 F.3d 873, 880 (9th Cir. 1993); Allen v. Toombs, 827 F.2d 563, 568–69 (9th Cir. 1987).
26 “To prevail on an Equal Protection claim brought under § 1983, Plaintiff must allege
27 facts plausibly showing that ‘“the defendants acted with an intent or purpose to discriminate
28 against [him] based upon membership in a protected class,’” (citing see Thornton v. City of St.
1 Helens, 425 F.3d 1158, 1166 (9th Cir. 2005) (quoting Lee v. City of Los Angeles, 250 F.3d
2 668, 686 (9th Cir. 2001)), or that similarly situated individuals were intentionally treated
3 differently without a rational relationship to a legitimate state purpose, Engquist v. Oregon
4 Department of Agr., 553 U.S. 591, 601-02, 128 S.Ct. 2146 (2008); Village of Willowbrook v.
5 Olech, 528 U.S. 562, 564, 120 S.Ct. 1073 (2000); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580,
6 592 (9th Cir. 2008); North Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008).
7 Plaintiff claims that he was discriminated against by Defendants. However, Plaintiff
8 has not alleged facts demonstrating that he was intentionally discriminated against on the basis
9 of his membership in a protected class, or that he was intentionally treated differently than
10 other similarly situated inmates without a rational relationship to a legitimate state purpose.
11 Therefore, Plaintiff fails to state a claim for relief for violation of his right to equal
12 protection.
13 I. Retaliation
14 Plaintiff claims he was retaliated against for exercising his right to submit inmate
15 requests and file inmate grievances and appeals.
16 As discussed by the Ninth Circuit in Watison v. Carter:
17 “A retaliation claim has five elements. Brodheim v. Cry,
584 F.3d 1262, 1269 (9th Cir. 2009). First, the plaintiff must
18 allege that the retaliated-against conduct is protected. The filing
of an inmate grievance is protected conduct. Rhodes v.
19 Robinson, 408 F.3d 559, 568 (9th Cir. 2005).
20 Second, the plaintiff must claim the defendant took
adverse action against the plaintiff. Id. at 567. The adverse
21 action need not be an independent constitutional violation. Pratt
v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). “[T]he mere
22 threat of harm can be an adverse action....” Brodheim, 584 F.3d
at 1270.
23
Third, the plaintiff must allege a causal connection
24 between the adverse action and the protected conduct. Because
direct evidence of retaliatory intent rarely can be pleaded in a
25 complaint, allegation of a chronology of events from which
retaliation can be inferred is sufficient to survive dismissal. See
26 Pratt, 65 F.3d at 808 (“timing can properly be considered as
circumstantial evidence of retaliatory intent”); Murphy v. Lane,
27 833 F.2d 106, 108–09 (7th Cir. 1987).
28
Fourth, the plaintiff must allege that the “official’s acts
1 would chill or silence a person of ordinary firmness from future
First Amendment activities.” Robinson, 408 F.3d at 568 (internal
2 quotation marks and emphasis omitted). “[A] plaintiff who fails
to allege a chilling effect may still state a claim if he alleges he
3 suffered some other harm,” Brodheim, 584 F.3d at 1269, that is
“more than minimal,” Robinson, 408 F.3d at 568 n.11. That the
4 retaliatory conduct did not chill the plaintiff from suing the
alleged retaliator does not defeat the retaliation claim at the
5 motion to dismiss stage. Id. at 569.
6 Fifth, the plaintiff must allege “that the prison authorities’
retaliatory action did not advance legitimate goals of the
7 correctional institution....” Rizzo v. Dawson, 778 F.2d 527, 532
(9th Cir.1985). A plaintiff successfully pleads this element by
8 alleging, in addition to a retaliatory motive, that the defendant's
actions were arbitrary and capricious, id., or that they were
9 “unnecessary to the maintenance of order in the institution,”
Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir.1984).”
10
Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012).
11
Here, Plaintiff alleges that Defendants retaliated against him because he filed prison
12
grievances or engaged in other protected conduct, when they failed to correct a documentary
13
violation, removed springs from his typewriter, and searched his cell. While Plaintiff has
14
shown that Defendants took adverse actions against him, he has not shown any connection
15
between the adverse actions and his participation in the prison grievance process or other
16
conduct protected by the First Amendment. Plaintiff has not alleged facts demonstrating that
17
Defendants acted against him because he filed grievances. Plaintiff has not established a causal
18
connection between his protected conduct and the claimed adverse actions. The mere statement
19
that Defendants “retaliated” against him or acted “in retaliation” is not sufficient to state a
20
claim. Therefore, Plaintiff fails to state a claim for retaliation against any of the Defendants.
21
J. CDCR or Prison Rules, State Regulations, Other State Law Claims
22
Plaintiff alleges that Defendants violated CDCR rules, the California constitution, and
23
other state laws.
24
Plaintiff is informed that violation of state tort law, state regulations, rules and policies
25
of the CDCR, or other state law is not sufficient to state a claim for relief under ' 1983.
26
Section 1983 does not provide a cause of action for violations of state law. See Galen v. Cnty.
27
of Los Angeles, 477 F.3d 652, 662 (9th Cir. 2007). To state a claim under § 1983, there must
28
1 be a deprivation of federal constitutional or statutory rights. See Paul v. Davis, 424 U.S. 693
2 (1976); also see Buckley v. City of Redding, 66 F.3d 188, 190 (9th Cir. 1995); Gonzaga
3 University v. Doe, 536 U.S. 273, 279 (2002). Although the court may exercise supplemental
4 jurisdiction over state law claims, Plaintiff must first have a cognizable claim for relief under
5 federal law. See 28 U.S.C. ' 1367.
6 In this instance, the court fails to find any cognizable federal claims in the First
7 Amended Complaint. Therefore, Plaintiff=s claims for violation of state law fail.
8 K. Plaintiff’s Exhibits
9 Plaintiff refers to several exhibits in the Complaint, but no exhibits were attached to the
10 Complaint.
11 With respect to exhibits, while they are permissible, Fed. R. Civ. P. 10(c), they are not
12 necessary in the federal system of notice pleading, Fed. R. Civ. P. 8(a). The Court strongly
13 suggests to Plaintiff that they should not be submitted where (1) they serve only to confuse the
14 record and burden the Court, or (2) they are intended as future evidence. If this action reaches
15 a juncture at which the submission of evidence is appropriate and necessary (e.g., summary
16 judgment or trial), Plaintiff will have the opportunity at that time to submit her evidence.
17 Plaintiff is cautioned that it is not the duty of the court to look through all of his exhibits
18 to determine whether or not he has any claims that are cognizable under ' 1983. Rather, the
19 court looks to the factual allegations contained in Plaintiff=s complaint to determine whether or
20 not Plaintiff has stated a cognizable claim for relief under ' 1983.
21 L. Request for Injunctive Relief
22 In addition to monetary damages, Plaintiff requests injunctive relief in the Complaint as
23 follows:
24 (1) Issue an injunction ordering Defendant C. Gonzales (Appeals Coordinator) to
25 respond to Plaintiff’s 22 forms and to process two 602’s that are pending in this
26 case;
27 (2) Issue an injunction ordering Defendants or ISU to stop their retaliation;
28 ///
1 (3) Expunge the disciplinary convictions described in this Complaint from the
2 Plaintiff’s institutional record;
3 (4) To demote, hold legal proceedings against J. Hightower, C. Waddle, C.
4 Gonzales, (ISU) Lozono, R. Chanelo, Sandoval, J. Hanzak.
5 Compl. at 26.
6 Any award of equitable relief is governed by the Prison Litigation Reform Act, which
7 provides in relevant part:
8 “The court shall not grant or approve any prospective relief unless the court
finds that such relief is narrowly drawn, extends no further than necessary to
9 correct the violation of the Federal right, and is the least intrusive means
necessary to correct the violation of the Federal right. The court shall give
10 substantial weight to any adverse impact on public safety or the operation of a
criminal justice system caused by the relief.” 18 U.S.C. ' 3626(a)(1)(A).
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12 Based on the nature of the claims at issue in this action, which involve past conduct,
13 Plaintiff is not entitled to injunctive relief and is therefore confined to seeking money damages
14 for the violations of his federal rights.
15 V. CONCLUSION AND ORDER
16 The court finds that Plaintiff’s Complaint fails to state any claim upon which relief may
17 be granted under § 1983. In addition, the court finds that Plaintiff’s Complaint violates Rule 18
18 of the Federal Rules of Civil Procedure because it contains unrelated claims. Therefore, the
19 court will dismiss the Complaint and grant Plaintiff leave to file a First Amended Complaint
20 addressing the issues described above.
21 Under Rule 15(a) of the Federal Rules of Civil Procedure, “[t]he court should freely
22 give leave to amend when justice so requires.” Accordingly, the court will provide Plaintiff an
23 opportunity to file an amended complaint curing the deficiencies identified above. Lopez v.
24 Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000). Plaintiff is granted leave to file the First
25 Amended Complaint within thirty days.
26 As discussed above, Plaintiff ‘s Complaint violates Rule 18(a) because it contains
27 unrelated claims. Plaintiff may proceed with only one of his unrelated claims in the First
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1 Amended Complaint. Plaintiff must select only one of the three unrelated claims found in the
2 Complaint.
3 The First Amended Complaint must allege facts showing what each named defendant
4 did that led to the deprivation of Plaintiff’s constitutional rights. Fed. R. Civ. P. 8(a); Iqbal,
5 556 U.S. at 678; Jones, 297 F.3d at 934. Plaintiff must demonstrate that each defendant
6 personally participated in the deprivation of his rights by their actions. Iqbal, 556 U.S. at 676-
7 77 (emphasis added).
8 Plaintiff should note that although he has been given the opportunity to amend, it is not
9 for the purpose of changing the nature of this suit or adding unrelated claims. George, 507 F.3d
10 at 607 (no “buckshot” complaints). Plaintiff should also note that he is not granted leave to add
11 allegations of events occurring after the date he filed the original Complaint, September 27,
12 2018.
13 Plaintiff is advised that an amended complaint supercedes the original complaint, Lacey
14 v. Maricopa County, 693 F 3d. 896, 907 n.1 (9th Cir. 2012) (en banc), and it must be complete
15 in itself without reference to the prior or superceded pleading, Local Rule 220. Therefore, in an
16 amended complaint, as in an original complaint, each claim and the involvement of each
17 defendant must be sufficiently alleged. The amended complaint should be clearly and boldly
18 titled “First Amended Complaint,” refer to the appropriate case number, and be an original
19 signed under penalty of perjury.
20 Based on the foregoing, it is HEREBY ORDERED that:
21 1. Plaintiff’s Complaint, filed on September 27, 2018, is DISMISSED for failure to
22 state a claim under § 1983 and for violation of Rule 18 of the Federal Rules of
23 Civil Procedure, with leave to amend;
24 2. The Clerk’s Office shall send Plaintiff a civil rights complaint form;
25 3. Plaintiff is granted leave to file a First Amended Complaint curing the
26 deficiencies identified by the court in this order, within thirty (30) days from
27 the date of service of this order;
28 ///
1 4. Plaintiff shall caption the amended complaint “First Amended Complaint” and
2 refer to the case number 1:18-cv-01336-GSA-PC; and
3 5. If Plaintiff fails to file a First Amended Complaint within thirty days, this case
4 shall be dismissed for failure to state a claim.
5
IT IS SO ORDERED.
6
7 Dated: September 24, 2019 /s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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