Coleman v. CDCR, et al.

Filing 97

ORDER GRANTING Defendants' Motion to Dismiss and DISMISSING Action for Failure to State a Claim Upon Which Relief May Be Granted 94 , signed by Magistrate Judge Dennis L. Beck on 2/26/13. (CASE CLOSED) (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ROBERT E. COLEMAN,
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Case No. 1:09-cv-00224-DLB PC

Plaintiff,

ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS AND DISMISSING
ACTION FOR FAILURE TO STATE A
CLAIM UPON WHICH RELIEF MAY BE
GRANTED

Defendants.

ECF No. 94

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v.
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CDCR, et al.,
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I.

Background
Plaintiff Robert E. Coleman (“Plaintiff”) is a prisoner in the custody of the California

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Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in

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forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. On July 11, 2012, Plaintiff filed his

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Fifth Amended Complaint (“5AC”). On December 5, 2012, the Court screened the complaint and

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found that it stated cognizable claims for relief against Defendants A. Diaz, M. Lopez, and P.

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Maldonado for retaliation in violation of the First Amendment. ECF No. 93. On January 4, 2013,

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Defendants filed a Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil

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Procedure for failure to state a claim upon which relief may be granted. ECF No. 94. On January

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22, 2013, Plaintiff filed his opposition. ECF No. 95. On January 29, 2013, Defendants filed their

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reply. ECF No. 96. The matter is submitted pursuant to Local Rule 230(l).

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II.

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Legal Standard
The focus of any Rule 12(b)(6) dismissal . . . is the complaint.” Schneider v. California
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Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). In considering a motion to dismiss for

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failure to state a claim, the court must accept as true the allegations of the complaint in question,

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Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the

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light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor.

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Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). The federal system is one of notice pleading.

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Galbraith v. County of Santa Clara, 307 F.3d 1119, 1126 (9th Cir. 2002).
Pursuant to Rule 8(a), a complaint must contain “a short and plain statement of the claim

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showing that the pleader is entitled to relief . . .” Fed. R. Civ. P. 8(a). Detailed factual allegations

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are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual matter,

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accepted as true, to ‘state a claim that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at

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555). While factual allegations are accepted as true, legal conclusions are not. Id.

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III.

Summary of Fifth Amended Complaint1
Plaintiff was confined at California State Prison – Corcoran (“CSP-Cor”) in Corcoran,

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California, during the events alleged in this action. Plaintiff names as Defendants: A. Diaz,

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correctional lieutenant at CSP-Cor, and M. Lopez and P. Maldonado, correctional sergeants at CSP-

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Cor.

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Plaintiff alleges the following. While incarcerated in Administrative Segregation 3A03 (“ad

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seg”) at CSP-Cor in January of 2008, Defendants Diaz, M. Lopez, and Maldonado failed to provide

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Plaintiff with his personal or legal property, even after he showed them a February 19, 2008 court

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deadline. Fifth Am. Compl. (“5AC”) ¶ 15. Plaintiff filed an inmate grievance regarding this. 5AC ¶

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15. After submitting this grievance, on February 27, 2008, Plaintiff was issued a Rules Violation

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Report (“RVR”) for refusing a direct order by Officer S. Vela regarding accepting a cell mate. 5AC

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¶ 16. On March 3, 2008, Defendants Lopez and Diaz put Plaintiff on property restriction for thirty

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days. 5AC ¶ 17. Plaintiff had access only to one sheet, one shirt, one pair of boxers, and one pair of

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socks, with no access to his other personal property or hygiene items. 5AC ¶ 17.

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Only Plaintiff’s allegations which are relevant to this motion are included.

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On March 10, 2008, Plaintiff attended his RVR 115 hearing, and Defendant Diaz was the

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senior hearing officer. 5AC ¶ 18. Plaintiff protested, contending that Defendant Diaz was the ad seg

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lieutenant and had ordered his officers to confiscate Plaintiff’s property. 5AC ¶ 18. Plaintiff was

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ignored, and was found guilty by Defendant Diaz. 5AC ¶ 18.

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On May 6, 2008, Plaintiff filed an inmate grievance challenging the guilty finding because

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Defendant Diaz was not an impartial decision maker. 5AC ¶ 19. Plaintiff remained on property

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restriction for six months rather than the three months found in the RVR. 5AC ¶ 19. In May of

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2008, Defendants Diaz, Lopez, and Maldonado wrote a memo admonishing ad seg inmates about

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specific punishments that they would receive if Defendants’ rules were violated. 5AC ¶ 20. Plaintiff

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compiled a group inmate grievance contesting the memo, but his grievance was never processed.

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5AC ¶ 20.

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After the submission of the group grievance, Defendant Maldonado approached Plaintiff at

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his cell and told him that he would be moving. 5AC ¶ 21. Plaintiff requested to speak with a

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captain. 5AC ¶ 21. Defendant Maldonado threatened Plaintiff with a cell extraction if Plaintiff

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refused to move. 5AC ¶ 21. Plaintiff again pleaded to speak to the captain, at which point

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Defendant Maldonado retreated from the cell. 5AC ¶ 21. A few days later, Defendants Diaz and

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Lopez threatened Plaintiff with a cell extraction if he refused to move and ordered subordinates to

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prepare to extract Plaintiff. 5AC ¶ 22. Plaintiff complied, and was housed in cell 150. 5AC ¶ 22.

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Cell 150’s lights were not properly working. 5AC ¶ 23. Plaintiff alerted Defendants Diaz,

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Lopez, and Maldonado of the problem, but was ignored. 5AC ¶ 23. Plaintiff then filed another

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inmate grievance. 5AC ¶ 23. Plaintiff remained in these conditions for two months. 5AC ¶ 23. Ad

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seg windows are covered in a white substance that prevents much light from passing through. 5AC ¶

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24. Plaintiff’s eyes became strained because of his pterygium/dry eye syndrome. 5AC ¶ 24.

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Plaintiff’s eyeglasses had been confiscated, making it difficult for him to conduct many legal

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endeavors. 5AC ¶ 24. Plaintiff had surgery on his right eye in February of 2009. 5AC ¶ 24.

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IV.

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Analysis
Allegations of retaliation against a prisoner’s First Amendment rights to speech or to petition

the government may support a § 1983 claim. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985);
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see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802,

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807 (9th Cir. 1995). Within the prison context, a viable claim of First Amendment retaliation entails

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five basic elements: (1) An assertion that a state actor took some adverse action against an inmate

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(2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s

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exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate

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correctional goal.” Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) (quoting Rhodes v.

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Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005)).

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Defendants contend that Plaintiff’s claims of retaliation are composed of three issues: alleged

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retaliation for 1) the filing of his grievance concerning Defendant Diaz’s impartiality, 2) his

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grievance regarding complaining of his property restriction, and 3) his grievance concerning

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Defendants’ issuance of a memo. Defs. Mem. P. & A. 6-7.

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A.

Property Grievance

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As to Plaintiff’s property grievance, Defendants contend that they did not take any action

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against Plaintiff to place him on property restriction. Defs. Mem. P. & A. 5:5-8. Rather, it was

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officer Vela who issued a Rules Violation Report that led to Plaintiff’s property restriction. Defs.

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Mem. P. & A. 5:5-8. Plaintiff had also been placed on property restriction for refusing a direct order

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to accept a cellmate, which Plaintiff does not deny that he did.

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Plaintiff contends that he was placed on property restriction because he was charged with

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refusing to submit to handcuffs, not because he refused to accept a cellmate. Pl. Opp’n 6:17-7:19.

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However, Plaintiff does not allege that in the 5AC, and thus, the Court reviews only Plaintiff’s

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pleadings. Plaintiff further contends that property restrictions cannot be imposed as punishment on

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administrative segregation inmates.

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The Court finds that Plaintiff fails to state a claim regarding retaliation for his property

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grievance. Plaintiff fails to allege facts which demonstrate that Defendants took the adverse action

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against Plaintiff, or that the adverse action was not in furtherance of a legitimate penological goal. .

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Defendants cite to the CDCR’s Departmental Operations Manual (“D.O.M.”) section 54046.11.2

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Restrictions for up to 180 days are applicable to inmates who refuse appropriate housing more than

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The Court takes judicial notice of the D.O.M. pursuant to Rule 201 of the Federal Rules of Evidence.

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once.

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B.

Grievance Concerning Impartiality

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Defendants contend that Plaintiff did not sufficiently allege a claim concerning retaliation for

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the filing of his grievance concerning Defendant Diaz’s impartiality. Defs. Mem. P. & A. 7:22-28.

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Plaintiff contends that he remained on property restriction for six months rather than the three

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months that was initially ordered. Defendants contend that Plaintiff does not identify who caused

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him to remain on six month property restriction. For inmates who refuse to accept appropriate

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housing more than once, such inmates may be subject to property restrictions for up to 180 days.
Plaintiff contends that Defendant Diaz responded to Plaintiff’s grievance and stated that he

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would be removed from property restriction, and was thus responsible. Pl.’s Opp’n 9:23-10:9.

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However, Plaintiff does not attach this grievance in support. Plaintiff also contends that the

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provisions of D.O.M. section 54046.11 do not apply to inmates in administrative segregation. That

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is an unsupported argument. Section 54046.1, which describes housing assignment policy and

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includes section 54046.11, applies to all inmates, including those in administrative segregation.
The Court finds that Plaintiff fails to state a claim for retaliation as to Plaintiff’s grievance

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regarding impartiality. Plaintiff fails to link Defendants regarding the imposition of additional

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property restriction. Additionally, the punishment imposed would legitimately advance penological

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goals.

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C.

Grievance Concerning Memo

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Defendants contend that Plaintiff has not alleged sufficient facts to demonstrate that he was

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retaliated against for filing the grievance concerning the memo by placing him in a new cell with

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deficient lighting. Defs. Mem. P. & A. 6:20-7:19. Defendants contend that Plaintiff has not linked

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any Defendant to the choice of the new cell. Defendants contend that Plaintiff fails to allege facts

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which demonstrate that he was moved to a new cell because of the grievance. Defendants further

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contend that the faulty light in the new cell is not an adverse action that would deter a person of

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ordinary firmness from engaging in protected activity. Defendants finally contend that there were

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legitimate reasons for Plaintiff to move to a new cell, since Plaintiff admits that he repeatedly

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refused a cell mate and exposed himself to female officers.
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Plaintiff contends that the timing of the move is indicative of a retaliatory motive. Pl. Opp’n

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8:21-28. Plaintiff also contends that he was threatened with a cell extraction if he did not move.

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The Court again finds that Plaintiff fails to state a claim concerning alleged retaliation for the

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filing of this grievance concerning the memo. Based on the pleadings, Plaintiff did not sufficiently

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allege facts to demonstrate that the new cell constituted an adverse action for purposes of retaliation.

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The faulty light described is not such an adverse action that it would chill a person of ordinary

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firmness from exercising his First Amendment activities. The alleged threat to Plaintiff of a cell

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extraction if he did not move appears to be a threat concerning Plaintiff refusing to comply with an

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order to move, and not because of an inmate appeal.3

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D.

Dismissal of Action

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This is the Fifth Amended Complaint filed by Plaintiff in this action. Plaintiff has not been

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able to cure the deficiencies in this action after being provided several opportunities. Accordingly,

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further leave to amend will not be granted. Lopez v. Smith, 203 F.3d 1122, 1130 (2000) (en banc).

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V.

Conclusion and Order

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Based on the foregoing, it is HEREBY ORDERED that:

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1. Defendants’ Motion to Dismiss, filed January 4, 2013, is granted;

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2. This action is dismissed with prejudice for failure to state a claim upon which relief may

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be granted;

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3. All other pending motions are denied as moot; and

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4. The Clerk of the Court is directed to close this action.

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IT IS SO ORDERED.

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Dated:

/s/ Dennis

February 26, 2013

L. Beck

UNITED STATES MAGISTRATE JUDGE

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DEAC_Signature-END:

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3b142a

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Having found that Plaintiff fails to state a claim, the Court declines to address Defendants’ qualified immunity
arguments.

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