(PC) O'Brien v. Diaz

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 KORY T. O’BRIEN, ) Case No.: 1:21-cv-00856-SAB (PC)

)

12 Plaintiff, )

) ORDER VACATING ORDER TO SHOW CAUSE,

13 v. ) AND GRANTING PLAINTIFF LEAVE TO FILE

AN AMENDED COMPLAINT OR NOTIFY THE

14 RITA DIAZ, et al., ) COURT OF INTENT TO PROCEED ON CLAIMS

) FOUND TO BE COGNIZABLE

15 Defendants. )

) (ECF Nos. 1, 6)

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18 Plaintiff Kory T. O’Brien is proceeding pro se and in forma pauperis in this civil rights action

19 pursuant to 42 U.S.C. § 1983.

20 Currently before the Court is Plaintiff’s complaint, filed May 27, 2021.

21 I.

22 SCREENING REQUIREMENT

23 The Court is required to screen complaints brought by prisoners seeking relief against a

24 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court

25 must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous

26 or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[] monetary

27 relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

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1 A complaint must contain “a short and plain statement of the claim showing that the pleader is

2 entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

3 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do

4 not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550

5 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally participated

6 in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

7 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally

8 construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th

9 Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible, which

10 requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is

11 liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962,

12 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and

13 “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying the plausibility

14 standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

15 II.

16 ALLEGATIONS IN COMPLAINT

17 The Court accepts Plaintiff's allegations in the complaint as true only for the purpose of the sua

18 sponte screening requirement under 28 U.S.C. § 1915.

19 On September 1, 2020, Plaintiff was told to exit the law library because his two hours were

20 over. Plaintiff approached the main counter in the law library, and Plaintiff told an inmate clerk that

21 “[t]his is fucking crazy. I just got out of guarantine. I have six active cases, and I can[]not even get an

22 extra fucking half hour.” Defendant Diaz, who Plaintiff was not talking to, interrupted the

23 conversation and instructed Plaintiff to “watch his language.” Plaintiff complied with the verbal

24 counseling. Plaintiff informed Defendant Diaz “to watch her discrimination, I am good a[t] filing civil

25 lawsuits[,]” because other inmates were allowed to stay in the law library and it was verbal

26 notification of Plaintiff’s intent to file a lawsuit against Diaz for discrimination. Plaintiff walked away

27 from the main counter and exited the law library.

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1 On September 2, 2020, Plaintiff received a Rules Violation Report (RVR), Log No. 7026650,

2 from Defendant Diaz for disrespect without potential for violence/disruption pursuant to California

3 Code of Regulations, title 15, section 3004(b). Defendant sergeant J. Moore was the reviewing

4 supervisor who approved the RVR.

5 Section 3004(b) states, “Inmates, parolees, and employees will not openly display disrespect or

6 contempt for others in any manner intended to or reasonably likely to disrupt orderly operations within

7 the institutions or to incite or provoke violence.” If intent must be present or reasonably likely, then

8 the RVR must contain those elements. The RVR specifically states “w/out potential for

9 violence/disruption.” Disrespect without the potential for violence/disruption is not a violation of

10 section 3004(b), and the RVR issued by Defendant Diaz was false which was issued only after

11 Plaintiff expressed his intent to file a lawsuit against Diaz.

12 Defendant J. Moore reviewed and approved the RVR and without Moore’s participation and

13 involvement it could not have been filed.

14 III.

15 EXHAUSTION OF ADMINISTRATIVE REMEDIES

16 On July 2, 2021, the Court issued an order for Plaintiff to show cause why the complaint

17 should not be dismissed for failure to exhaust the administrative remedies. (ECF No. 6.)

18 Plaintiff filed a response to the order to show cause on July 15, 2021. (ECF No. 8.)

19 Based on Plaintiff’s response to the order, the Court finds that dismissal of the action for

20 failure to exhaust the administrative remedies is not clear from the face of the complaint, and the

21 failure to exhaust the “failure to exhaust is an affirmative defense under the PLRA, and … inmates are

22 not required to specially plead or demonstrate exhaustion in their complaints.” Jones v. Bock, 549 U.S.

23 199, 216 (2007). Accordingly, the Court will discharge the order to show cause and allow the action

24 to proceed. However, the Court is not making any dispositive ruling as exhaustion of the

25 administrative remedies which may be addressed by Defendants via a motion for summary judgment.

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1 IV.

2 DISCUSSION

3 A. Retaliation

4 “Prisoners have a First Amendment right to file grievances against prison officials and to be

5 free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (citing

6 Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). “Within the prison context, a viable claim of

7 First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some

8 adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such

9 action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not

10 reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th

11 Cir. 2005). To state a cognizable retaliation claim, Plaintiff must establish a nexus between the

12 retaliatory act and the protected activity. Grenning v. Klemme, 34 F.Supp.3d 1144, 1153 (E.D. Wash.

13 2014). The Ninth Circuit has held that “threats to sue fall within the purview of the constitutionally

14 protected right to file grievances.” Entler v. Gregoire, 872 F.3d 1031, 1039 (9th Cir. 2017) The filing

15 of a complaint by a prisoner, as well as the threat to do so, are protected by the First Amendment,

16 provided they are not baseless. Entler, 872 F.3d at 1043 (9th Cir. 2017) (it is illogical to conclude that

17 prison officials may punish a prisoner for threatening to sue when it would be unconstitutional to

18 punish a prisoner for actually suing.)

19 Liability may not be imposed on supervisory personnel for the actions or omissions of their

20 subordinates under the theory of respondeat superior. Iqbal, 556 U.S. at 676–77; Simmons v. Navajo

21 Cty., Ariz., 609 F.3d 1011, 1020–21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235

22 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002)

23 Supervisors may be held liable only if they “participated in or directed the violations, or knew

24 of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.

25 1989); accord Starr v. Baca, 652 F.3d 1202, 1205–06 (9th Cir. 2011); Corales v. Bennett, 567 F.3d

26 554, 570 (9th Cir. 2009). Supervisory liability may also exist without any personal participation if the

27 official implemented “a policy so deficient that the policy itself is a repudiation of the constitutional

28 rights and is the moving force of the constitutional violation.” Redman v. Cty. of San Diego, 942 F.2d

1 1435, 1446 (9th Cir. 1991) (citations and quotations marks omitted), abrogated on other grounds by

2 Farmer v. Brennan, 511 U.S. 825 (1970).

3 To prove liability for an action or policy, the plaintiff “must... demonstrate that his deprivation

4 resulted from an official policy or custom established by a... policymaker possessed with final

5 authority to establish that policy.” Waggy v. Spokane County Washington, 594 F.3d 707, 713 (9th

6 Cir.2010). When a defendant holds a supervisory position, the causal link between such defendant and

7 the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858,

8 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory

9 allegations concerning the involvement of supervisory personnel in civil rights violations are not

10 sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

11 Based on the allegations set forth above, Plaintiff has stated a cognizable retaliation claim

12 against Defendants Rita Diaz and Jeramy Moore.

13 B. State Law Retaliation Claim

14 “Federal courts are courts of limited jurisdiction, having subject-matter jurisdiction only

15 over matters authorized by the Constitution and Congress. Subject-matter jurisdiction exists in civil

16 cases involving a federal question or diversity of citizenship.” Bates v. Gen. Nutrition Centers, Inc.,

17 897 F. Supp. 2d 1000, 1002 (C.D. Cal. 2012) (internal citations omitted).

18 Under 28 U.S.C. § 1367(a), “in any civil action of which the district courts have original

19 jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so

20 related to claims in the action within such original jurisdiction that they form part of the same case or

21 controversy .... ” However, a court “may decline to exercise supplemental jurisdiction over related

22 state-law claims once it has ‘dismissed all claims over which it has original jurisdiction.’ ” Ove v.

23 Gwinn, 264 F.3d 817, 826 (9th Cir. 2001) (quoting 28 U.S.C § 1367(c)(3) ); see also Gini v. Las

24 Vegas Metro. Police Dep't, 40 F.3d 1041, 1046 (9th Cir. 1994) (where a court declines to exercise

25 supplemental jurisdiction, dismissal of the state law claims is without prejudice).

26 Plaintiff states that he wishes to bring a retaliation claim under state law. However, because

27 Plaintiff’s claim is based on a violation of his rights under the First Amendment, it is more

28 appropriately raised by way of federal constitutional law via section 1983, and any state law claim

1 appears to be duplicative. Indeed, Plaintiff fails to set forth what specific state law to support his

2 retaliation claim. In addition, Under the California Government Claims Act (“CGCA”),2 set forth in

3 California Government Code sections 810 et seq., a plaintiff may not bring a suit for monetary

4 damages against a public employee or entity unless the plaintiff first presented the claim to the

5 California Victim Compensation and Government Claims Board (“VCGCB” or “Board”), and the

6 Board acted on the claim, or the time for doing so expired.

7 “The Tort Claims Act requires that any civil complaint for money or damages first be

8 presented to and rejected by the pertinent public entity.” Munoz v. California, 33 Cal.App.4th 1767,

9 1776 (1995). The purpose of this requirement is “to provide the public entity sufficient information to

10 enable it to adequately investigate claims and to settle them, if appropriate, without the expense of

11 litigation,” City of San Jose v. Superior Court, 12 Cal.3d 447, 455 (1974) (citations omitted), and “to

12 confine potential governmental liability to rigidly delineated circumstances: immunity is waived only

13 if the various requirements of the Act are satisfied,” Nuveen Mun. High Income Opportunity Fund v.

14 City of Alameda, Cal., 730 F.3d 1111, 1125 (9th Cir. 2013). Compliance with this “claim presentation

15 requirement” constitutes an element of a cause of action for damages against a public entity or official.

16 State v. Superior Court (Bodde), 32 Cal.4th 1234, 1244 (2004). In the state courts, “failure to allege

17 facts demonstrating or excusing compliance with the claim presentation requirement subjects a claim

18 against a public entity to a demurrer for failure to state a cause of action.” Id. at 1239 (fn.omitted).

19 Federal courts likewise must require compliance with the CGCA for pendant state law claims

20 that seek damages against state public employees or entities. Willis v. Reddin, 418 F.2d 702, 704 (9th

21 Cir.1969); Mangold v. California Public Utilities Commission, 67 F.3d 1470, 1477 (9th Cir.1995).

22 State tort claims included in a federal action, filed pursuant to 42 U.S.C. § 1983, may proceed only if

23 the claims were first presented to the state in compliance with the claim presentation requirement.

24 Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 627 9th Cir.1988); Butler v. Los

25 Angeles County, 617 F.Supp.2d 994, 1001 (C.D.Cal.2008). Plaintiff fails to state any allegations

26 showing his compliance with the CGCA so as to be allowed to pursue claims for having been

27 wrongfully deprived of his property. Accordingly, Plaintiff fails to state a cognizable state law claim.

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1 V.

2 CONCLUSION AND ORDER

3 Based on the foregoing, the Court finds that Plaintiff has stated a cognizable retaliation claim

4 against Defendants Rita Diaz and Jeramy Moore. However, Plaintiff has failed to state any other

5 cognizable claims. Plaintiff will be granted an opportunity to amend his complaint to cure the above-

6 identified deficiencies to the extent he is able to do so in good faith. Lopez v. Smith, 203 F.3d 1122,

7 1130 (9th Cir. 2000).

8 If Plaintiff does not wish to file a first amended complaint and he is agreeable to proceeding only

9 on the cognizable claims identified by the Court, he may file a notice informing the Court that he does

10 not intend to amend and he is willing to proceed only on his deliberate indifference and retaliation claims

11 against the Defendants Diaz and Moore. The Court will then recommend to the District Judge that this

12 case only proceed on the cognizable claims for the reasons discussed above.

13 If Plaintiff chooses to file a first amended complaint, that complaint should be brief, Fed. R. Civ.

14 P. 8(a), but it must state what each named Defendant did that led to the deprivation of Plaintiff’s

15 constitutional rights, Iqbal, 556 U.S. at 678-79. Although accepted as true, the “[f]actual allegations

16 must be [sufficient] to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555

17 (citations omitted).

18 Additionally, Plaintiff may not change the nature of this suit by adding new, unrelated claims in

19 his first amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot”

20 complaints).

21 Finally, Plaintiff is advised that an amended complaint supersedes the original complaint. Lacey,

22 693 F.3d at 927. Therefore, Plaintiff’s first amended complaint must be “complete in itself without

23 reference to the prior or superseded pleading.” Local Rule 220.

24 Based on the foregoing, it is HEREBY ORDERED that:

25 1. The order to show cause issued on July 2, 2021 is vacated;

26 2. The Clerk’s office shall send Plaintiff a complaint form;

27 3. Within thirty (30) days from the date of service of this order, Plaintiff shall file either:

28 a. a first amended complaint curing the deficiencies identified by the Court in this

1 order, or

2 b. a notice of his intent to proceed only on the cognizable claim identified by tl

3 Court in this order; and

4 4. Plaintiff is warned that, if he fails to comply with this order, the Court will recommer

5 to the District Judge that this action be dismissed for failure to prosecute and failure

6 obey a court order.

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8 IT IS SO ORDERED.

□□ (ee

9 Dated: _ July 27, 2021 IF

10 UNITED STATES MAGISTRATE JUDGE

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