referring to Fed. R. Civ. P. 8(e)(1)
How later courts described this case
- referring to Fed. R. Civ. P. 8(e)(1)
- holding that equal protection claims may be brought by a “class 24 of one”
Written by the judges who cited it.
The opinion
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8 IN THE UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 RAYNARD VALLERY, No. 2:19-CV-1813-DMC-P
12 Plaintiff,
13 v. ORDER
14 DEGALLEGOS, et al.,
15 Defendants.
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17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
18 42 U.S.C. § 1983. Pending before the court is plaintiff’s complaint (ECF No. 1).
19 The court is required to screen complaints brought by prisoners seeking relief
20 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.
21 § 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or
22 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief
23 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover,
24 the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain
25 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This
26 means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d
27 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the
28 complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it
1 rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege
2 with at least some degree of particularity overt acts by specific defendants which support the
3 claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is
4 impossible for the court to conduct the screening required by law when the allegations are vague
5 and conclusory.
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7 I. PLAINTIFF’S ALLEGATIONS
8 Plaintiff Raynard Vallery has named the following as defendants: 1) Degallegos,
9 2) D. Halverson, and 3) R. Neuschmid. Plaintiff is a prisoner at Solano State Prison in Vacaville,
10 California.
11 On November 27, 2019, plaintiff was called to transfer from housing facility B to
12 housing facility C. This transfer would not allow plaintiff to keep his television in the new facility
13 because of an increased risk of fire. Plaintiff was instructed by the prison staff to leave his
14 television behind and follow procedures to have it moved to a safe location. Within a few weeks,
15 plaintiff was informed that his television was confiscated and taken to storage. Plaintiff returned
16 to facility B without permission to inquire as to the status of his television. There, he was told by
17 Officer Degallegos that his television was in storage. Degallegos allegedly threatened to handcuff
18 plaintiff and issue him a citation if he entered the facility without permission again.
19 On December 13, 2017, plaintiff made an administrative inquiry to Corrections
20 Officer Martin as to the whereabouts of his television. Martin failed to respond and plaintiff
21 subsequently contacted prison representative Oliver, requesting assistance in locating his
22 television. Plaintiff was eventually told by prison staff that his television was no longer in storage.
23 Degallegos allegedly disposed of the television because plaintiff failed to fill out the necessary
24 paperwork. Plaintiff contends this was a pretext for Degallegos’ retaliation against him, and that
25 he was never given the paperwork to fill out, nor the requisite 30-day waiting period, as is
26 standard policy.
27 / / /
28 / / /
1 Plaintiff appealed Degallegos’ actions to Associate Warden D. Halverson. On
2 February 2, 2018, Halverson denied the appeal, citing 1) plaintiff’s failure to fill out the necessary
3 paperwork and 2) plaintiff’s failure to mail his television home within the allotted 30-day period.
4 Plaintiff alleges that he was never given the necessary paperwork, nor had the 30-day period
5 expired before his television was destroyed. Plaintiff claims that Halverson knowingly fabricated
6 facts to support Degallegos’ retaliation against him.
7 Plaintiff appealed Halverson’s decision to Warden R. Neuschmid. On March 13,
8 2018, Neuschmid denied the appeal on the same grounds of Halverson’s denial. Plaintiff similarly
9 alleges that Neuschmid knowingly fabricated facts to support Degallegos’ retaliation against him.
10 Lastly, plaintiff alleges that his building cluster, buildings 13, 14, and 15, prohibits
11 the possession of televisions despite the fact that buildings 16, 17, and 18 allow prisoners to keep
12 their televisions. Prison staff claim this distinction is made to prevent fire hazards, but plaintiff
13 alleges it is a pretext for unequal treatment of prisoners.
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15 II. DISCUSSION
16 A. Retaliation
17 Plaintiff fails to make out a cognizable claim of retaliation against any of the
18 named defendants.
19 In order to state a claim under 42 U.S.C. § 1983 for retaliation, the prisoner must
20 establish that he was retaliated against for exercising a constitutional right, and that the retaliatory
21 action was not related to a legitimate penological purpose, such as preserving institutional
22 security. See Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam). In meeting
23 this standard, the prisoner must demonstrate a specific link between the alleged retaliation and the
24 exercise of a constitutional right. See Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995);
25 Valandingham v. Bojorquez, 866 F.2d 1135, 1138-39 (9th Cir. 1989). The prisoner must also
26 show that the exercise of First Amendment rights was chilled, though not necessarily silenced, by
27 the alleged retaliatory conduct. See Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000), see also
28 Rhodes v. Robinson, 408 F.3d 559, 569 (9th Cir. 2005). Thus, the prisoner plaintiff must
1 establish the following in order to state a claim for retaliation: (1) prison officials took adverse
2 action against the inmate; (2) the adverse action was taken because the inmate engaged in
3 protected conduct; (3) the adverse action chilled the inmate’s First Amendment rights; and (4) the
4 adverse action did not serve a legitimate penological purpose. See Rhodes, 408 F.3d at 568.
5 As to the chilling effect, the Ninth Circuit in Rhodes observed: “If Rhodes had not
6 alleged a chilling effect, perhaps his allegations that he suffered harm would suffice, since harm
7 that is more than minimal will almost always have a chilling effect.” Id. at n.11. By way of
8 example, the court cited Pratt in which a retaliation claim had been decided without discussing
9 chilling. See id. This citation is somewhat confusing in that the court in Pratt had no reason to
10 discuss chilling because it concluded that the plaintiff could not prove the absence of legitimate
11 penological interests. See Pratt, 65 F.3d at 808-09. Nonetheless, while the court has clearly
12 stated that one of the “basic elements” of a First Amendment retaliation claim is that the adverse
13 action “chilled the inmates exercise of his First Amendment rights,” id. at 567-68, see also
14 Resnick, 213 F.3d at 449, the comment in Rhodes at footnote 11 suggests that adverse action
15 which is more than minimal satisfies this element. Thus, if this reading of Rhodes is correct, the
16 chilling effect element is essentially subsumed by adverse action.
17 1. Defendant Degallegos
18 Here, plaintiff claims that Officer Degallegos took adverse action against him;
19 namely by disposing of his television without following proper prison policy. This conduct
20 resulted in the deprivation of plaintiff’s property, so, under Rhodes, it may be argued that plaintiff
21 suffered a chilling effect. Lastly, defendant adequately alleges that Degallegos’ unauthorized
22 destruction of his property was retaliatory and not in service to a legitimate penological purpose.
23 However, plaintiff does not satisfy the second element of a retaliation claim.
24 Plaintiff has failed to state (1) the type of protected conduct he was allegedly engaged in, and
25 (2) that Degallegos retaliated against plaintiff because of that conduct. Plaintiff does mention the
26 reason for the named defendant’s alleged retaliation. The complaint simply makes conclusory
27 statements that Degallegos retaliated against him for “being out of bounds.” See ECF No 1. at 7.
28 Plaintiff states that he returned to his old housing unit without permission and asked Degallegos
1 about his television’s whereabouts. However, it is unclear if plaintiff is alleging that Degallegos
2 destroyed his television in response to this action. Similarly, plaintiff mentions that he made
3 inquiries to prison agents Martin and Oliver prior to learning that his television was destroyed.
4 However, it is not clear if plaintiff alleges that Degallegos destroyed his television in response to
5 these inquiries.
6 “The Supreme Court has instructed the federal courts to liberally construe the
7 inartful pleading of pro se litigants. It is settled that the allegations of [a pro se litigant’s
8 complaint] however inartfully pleaded are held to less stringent standards than formal pleadings
9 drafted by lawyers.” See Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (citation and
10 internal quotation marks omitted; brackets in original). The rule, however, “applies only to a
11 plaintiff’s factual allegations.” See Neitzke v.Williams, 490 U.S. 319, 330 n.9 (1989). ‘“[A]
12 liberal interpretation of a civil rights complaint may not supply essential elements of the claim
13 that were not initially pled.”’ See Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th
14 Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).
15 Here, in order to find a retaliatory purpose from the plaintiff’s factual allegations,
16 the Court would have to make broad logical assumptions as to why Degallegos destroyed
17 plaintiff’s television. While pro se litigants are entitled to a liberal construction of their pleadings,
18 they must still do the work of fully articulating their claims. Plaintiff’s factual allegations against
19 Degallegos satisfy some elements of a § 1983 retaliation claim, but they do not satisfy all of them.
20 Therefore, plaintiff has failed to articulate a valid retaliation claim against Degallegos.
21 2. Defendants D. Halverson and R. Neuschmid
22 In regard to defendants, D. Halverson and R. Neuschmid, the plaintiff also fails to
23 adequately state a claim for retaliation. Plaintiff claims the named defendants took adverse action
24 against him by denying his appeals based on fabricated facts. Plaintiff goes so far so to allege that
25 both Halverson and Neuschmid knew that Degallegos’ conduct was retaliatory and willing aided
26 him in his retaliation. These statements properly claim adverse action by the defendants against
27 the plaintiff.
28 / / /
1 However, like Degallegos, plaintiff fails to articulate (1) the type of protected
2 conduct he was allegedly engaged in, and (2) that both named defendants retaliated against
3 plaintiff because of that conduct. For these reasons, plaintiff has failed to adequately state a claim
4 for retaliation against any of the named defendants.
5 B. 14th Amendment – Due Process
6 Plaintiff fails to make out a cognizable claim under the Due Process Clause of the
7 14th Amendment.
8 The Due Process Clause protects prisoners from being deprived of life, liberty, or
9 property without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to
10 state a claim of deprivation of due process, a plaintiff must allege the existence of a liberty or
11 property interest for which the protection is sought. See Ingraham v. Wright, 430 U.S. 651, 672
12 (1977); Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972). Due process protects against the
13 deprivation of property where there is a legitimate claim of entitlement to the property. See Bd.
14 of Regents, 408 U.S. at 577. Protected property interests are created, and their dimensions are
15 defined, by existing rules that stem from an independent source – such as state law – and which
16 secure certain benefits and support claims of entitlement to those benefits. See id.
17 In order to make out a claim under Section 1983 for deprivation of property
18 without due process of law, an inmate must establish that the deprivation of property occurred as
19 a result of some established state procedure. See Parratt v. Taylor 451 U.S. 527, 542 (1981).
20 Where a prisoner alleges the deprivation of a liberty or property interest caused by the random
21 and unauthorized action of a prison official, there is no claim cognizable under 42 U.S.C. § 1983
22 if the state provides an adequate post-deprivation remedy. See Zinermon v. Burch, 494 U.S. 113,
23 129-32 (1990); Hudson v. Palmer, 468 U.S. 517, 533 (1984). An available state common law tort
24 claim procedure to recover the value of property is an adequate remedy. See id. at 128-29.
25 Here, plaintiff claims that his due process rights were violated by defendant
26 Degallegos when he disregarded established prison protocol and destroyed his property.
27 However, this alleged conduct, alone, does not give rise to a cause of action under the Due
28 Process Clause. Plaintiff does not argue that his television was destroyed due to an adherence to
1 prison policy. On the contrary, plaintiff alleges that Degallegos disregarded policy by failing to
2 provide him with the necessary paperwork and destroying his television before the 30-waiting
3 period expired. Plaintiff does not suggest that he was deprived of his property as the result of
4 some established state procedure. Instead, plaintiff alleges that the named defendants disregarded
5 prison rules and fabricated facts. This conduct, if true, does not give rise to a Due Process claim,
6 though it may give rise to a state common law tort claim.
7 C. 14th Amendment – Equal Protection
8 Plaintiff fails to make out a cognizable claim under the Equal Protection Clause of
9 the 14th Amendment.
10 Equal protection claims arise when a charge is made that similarly situated
11 individuals are treated differently without a rational relationship to a legitimate state purpose. See
12 San Antonio School District v. Rodriguez, 411 U.S. 1 (1972). Equal protection claims are not
13 necessarily limited to racial and religious discrimination. See Lee v. City of Los Angeles, 250
14 F.3d 668, 686-67 (9th Cir. 2001) (applying minimal scrutiny to equal protection claim by a
15 disabled plaintiff because the disabled do not constitute a suspect class) see also Tatum v. Pliler,
16 2007 WL 1720165 (E.D. Cal. 2007) (applying minimal scrutiny to equal protection claim based
17 on denial of in-cell meals where no allegation of race-based discrimination was made); Hightower
18 v. Schwarzenegger, 2007 WL 732555 (E.D. Cal. March 19, 2008).1
19 In order to state a § 1983 claim based on a violation of the Equal Protection Clause
20 of the Fourteenth Amendment, a plaintiff must allege that defendants acted with intentional
21 discrimination against plaintiff, or against a class of inmates which included plaintiff, and that
22 such conduct did not relate to a legitimate penological purpose. See Village of Willowbrook v.
23 Olech, 528 U.S. 562, 564 (2000) (holding that equal protection claims may be brought by a “class
24 of one”); Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 740 (9th Cir. 2000); Barren v.
25 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998); Federal Deposit Ins. Corp. v. Henderson, 940
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1 Error! Main Document Only.Strict scrutiny applies to equal protection claims
27 alleging race-based or religious discrimination (i.e., where the plaintiff is member of a “protected
class”); minimal scrutiny applies to all other equal protection claims. See Lee v. City of Los
28 Angeles, 250 F.3d 668, 686-67 (9th Cir. 2001).
1 F.2d 465, 471 (9th Cir. 1991); Lowe v. City of Monrovia, 775 F.2d 998, 1010 (9th Cir. 1985).
2 Here, plaintiff claims he was discriminated against, in violation of the14th
3 Amendment, because he was not allowed to take his television with him into his new housing
4 unit, despite the fact that inmates in other housing units are allowed to keep their televisions.
5 From the facts alleged in plaintiff’s complaint, the reason for this distinction appears to be that
6 plaintiff’s housing unit poses a greater fire risk than others. See ECF No. 1 at 6. Since this is not a
7 classification based on race, religion, gender, or any other suspect classification, minimal scrutiny
8 applies, and plaintiff must allege that defendants acted with intentional discrimination against
9 plaintiff and that such conduct did not relate to a legitimate penological purpose. Nothing in
10 plaintiff’s complaint alleges that the prison barred inmates in facility B from possessing
11 televisions for a discriminatory purpose nor does it allege that preventing the risk of fire does not
12 serve a legitimate penological purpose. Plaintiff simply states that defendants D. Halverson and
13 R. Neuschmid violated his 14th Amendment rights when the “defendants allow[ed] the majority
14 of inmates to have [t]elevisions and not Mr. Vallery for no probable cause.” ECF No.1 at 12. This
15 is insufficient. Plaintiff must make out an intentionally discriminatory purpose. Therefore, there is
16 no cognizable Equal Protection Claim.
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18 III. CONCLUSION
19 Because it is possible that the deficiencies identified in this order may be cured by
20 amending the complaint, plaintiff is entitled to leave to amend prior to dismissal of the entire
21 action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is
22 informed that, as a general rule, an amended complaint supersedes the original complaint. See
23 Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to
24 amend, all claims alleged in the original complaint which are not alleged in the amended
25 complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if
26 plaintiff amends the complaint, the court cannot refer to the prior pleading in order to make
27 plaintiff's amended complaint complete. See Local Rule 220. An amended complaint must be
28 complete in itself without reference to any prior pleading. See id.
1 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the
2 | conditions complained of have resulted in a deprivation of plaintiff's constitutional rights. See
3 | Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how
4 | each named defendant is involved, and must set forth some affirmative link or connection
5 | between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d
6 | 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
7 Finally, plaintiff is warned that failure to file an amended complaint within the
8 | time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at
9 | 1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply
10 | with Rule 8 may, in the court’s discretion, be dismissed with prejudice pursuant to Rule 41(b).
11 | See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).
12 Accordingly, IT IS HEREBY ORDERED that:
13 1. Plaintiff's complaint is dismissed with leave to amend; and
14 2. Plaintiff shall file a first amended complaint within 30 days of the date of
15 | service of this order.
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18 | Dated: October 4, 2019
19 DENNIS M. COTA
20 UNITED STATES MAGISTRATE JUDGE
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