Percival v. Clark et al

Filing 22

ORDER Finding Claim Against Sgt. J. Nail Cognizable and Dismissing All Other Claims re 21 , signed by Magistrate Judge Michael J. Seng on 8/31/11. R. Fisher, Landsford Peters, Jean Pierre, Rahimi, A. Wycoff, T. Akin and Ken Clark terminated. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LARRY JOE PERCIVAL,

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CASE NO.

Plaintiff,

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1:09-cv-01699-MJS (PC)

ORDER FINDING CLAIM AGAINST SGT. J.
NAIL COGNIZABLE AND DISMISSING ALL
OTHER CLAIMS

v.

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SGT. J. NAIL, et al.,

(ECF No. 21)

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Defendants.

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/

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SCREENING ORDER

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I.

PROCEDURAL HISTORY

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On September 28, 2009, Plaintiff Larry Joe Percival, a state prisoner proceeding pro

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se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF

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No. 1.) Plaintiff consented to Magistrate Judge jurisdiction on November 19, 2010. (ECF

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No. 13.)

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Prior to initial screening, the Court granted Plaintiff’s Motion to Amend his
Complaint. (ECF. No. 16.) Plaintiff’s First Amended Complaint, filed January 13, 2011

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(ECF No. 17), was screened and dismissed, with leave to amend, on March 1, 2011. (ECF

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No. 18.) Similarly, his Second Amended Complaint, filed March 18, 2011 (ECF No. 19),

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was dismissed with leave to amend. (ECF No. 20.) Plaintiff’s Third Amended Complaint,

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filed April 15, 2011, is now before the Court for screening. (ECF No. 21.)
II.

SCREENING REQUIREMENT

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

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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has

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raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which

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relief may be granted, or that seek monetary relief from a defendant who is immune from

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such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion

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thereof, that may have been paid, the court shall dismiss the case at any time if the court

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determines that . . . the action or appeal . . . fails to state a claim upon which relief may be

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granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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Section 1983 “provides a cause of action for the ‘deprivation of any rights, privileges,

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or immunities secured by the Constitution and laws’ of the United States.” Wilder v.

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Virginia Hosp. Ass’n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983

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is not itself a source of substantive rights, but merely provides a method for vindicating

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federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

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III.

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SUMMARY OF COMPLAINT
The Third Amended Complaint alleges the following named defendants violated

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Plaintiff’s First Amendment rights: Sergeant J. Nail, Captain R. Fisher, and Correctional

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Officer R. Garza.

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Plaintiff alleges the following:

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On November 6, 2008, Plaintiff watched as Defendant Nail physically assaulted a

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handcuffed, wheelchair-bound inmate. Afterwards, Defendant Nail told Plaintiff “that if

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[Plaintiff] had anything to say about it he would have [Plaintiff] shot for assallting [sic] staff.”

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(Compl. at 3.) Plaintiff wrote to the Director of Corrections “specifically complaining of SGT

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J. Nail[’]s actions.” (Id.) Plaintiff was interviewed about the letter two weeks later;

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Defendant Nail knew the subject of the interview and when it took place. (Id.) During the

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interview, Defendants Nail and Garza conducted a search of Plaintiff’s cell and found a

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weapon that Defendant Nail had planted. Plaintiff received a rules violation, was found
guilty, and lost three hundred sixty-five days of good time credit. (Id.)

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Plaintiff’s cell was searched by Defendant Nail a second time on January 6, 2009.

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(Id. at 4.) After the search, Plaintiff found a razor planted by Nail in his cell. Plaintiff sent

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the razor along with a grievance describing Nail’s actions to the Director of Corrections.

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The grievance was forwarded to Defendant Fisher for investigation. “Fisher accused

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[Plaintiff] of lying and . . . then wrote [Plaintiff] up for possesion [sic] of a weapon . . . .” (Id.)
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Plaintiff alleges that the aforementioned conduct “had a chilling effect on [his] First

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Amendment rights and furthered no legitimate penological concerns.” (Id. at 3, 4.) The

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Court will address the merit of these claims.

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IV.

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ANALYSIS
To state a claim under Section 1983, a plaintiff must allege two essential elements:

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(1) that a right secured by the Constitution or laws of the United States was violated and
(2) that the alleged violation was committed by a person acting under the color of state law.
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See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243,

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1245 (9th Cir. 1987).

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

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pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are

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

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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949

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(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set

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forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its

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face.’” Id. Facial plausibility demands more than the mere possibility that a defendant

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committed misconduct and, while factual allegations are accepted as true, legal
conclusions are not. Id. at 1949-50.

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A.

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Plaintiff alleges that Defendants Fisher, Nail, and Garza violated his First

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Retaliation

Amendment rights through retaliatory conduct.
“Within the prison context, a viable claim of First Amendment retaliation entails five

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

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

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the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably

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

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Cir. 2005).

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Plaintiff alleges two separate acts of retaliation.

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1.

First Retaliatory Act

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Plaintiff alleges that Defendant Nail planted a weapon in his cell because Plaintiff
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filed a grievance against Nail. Plaintiff states a cognizable retaliation claim against

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Defendant Nail.

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The first element is satisfied because Plaintiff alleges that Defendant Nail took

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adverse action against Plaintiff for exercising a right to file a grievance and that, as a result,

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Plaintiff was punished with a loss of a year’s worth of good time credit. See Martin v.

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Sullivan, 2007 WL 2462076, *7 (E.D. Cal. Aug. 28, 2007) (allegation of planted evidence

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with issuance of rules violation report found to state a retaliation claim).

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The second element of a prisoner retaliation claim focuses on causation and motive.
See Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009). A plaintiff must show that his

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protected conduct was a “‘substantial’ or ‘motivating’ factor behind the defendant’s

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conduct.” Id. (quoting Morgan, 874 F.2d at 1314). Although it can be difficult to establish

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the motive or intent of the defendant, a plaintiff may rely on circumstantial evidence. Bruce

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v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003) (finding that a prisoner established a triable

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issue of fact regarding prison officials’ retaliatory motives by raising issues of suspect

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timing, evidence, and statements); Hines v. Gomez, 108 F.3d 265, 267-68 (9th Cir. 1997);

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Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995) (“timing can properly be considered as
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circumstantial evidence of retaliatory intent”). The Third Amended Complaint sufficiently

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links Defendant Nail’s motives to Plaintiff’s protected conduct by alleging a motive for

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retaliation and alleging the retaliatory act occurred at the same time as the act precipitating

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the retaliation, i.e., the interview concerning the letter written by Plaintiff about Defendant

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Nail assaulting another inmate.

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As to the third prong of the retaliation test, filing a grievance is a protected action
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under the First Amendment. Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir.
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1989). Plaintiff’s letter “specifically complain[ed] of SGT J. Nail[’]s actions” and therefore

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clearly falls within protected conduct.

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With respect to the fourth prong, “[it] would be unjust to allow a defendant to escape

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liability for a First Amendment violation merely because an unusually determined plaintiff

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persists in his protected activity . . . .” Mendocino Envtl. Ctr. v. Mendocino County, 192

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F.3d 1283, 1300 (9th Cir. 1999). The correct inquiry is to determine whether an official’s

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acts would chill or silence a person of ordinary firmness from future First Amendment

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activities. Rhodes, 408 F.3d at 568-69 (citing Mendocino Envtl. Ctr., 192 F.3d at 1300).

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Plaintiff alleges facts sufficient to satisfy the fourth prong. Having contraband planted in

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one’s cell and having that person punished for possession of the contraband would
discourage a person of ordinary firmness from exercising his First Amendment rights.

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The fifth prong requires a prisoner to allege that “the prison authorities’ retaliatory

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action did not advance legitimate goals of the correctional institution or was not tailored

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narrowly enough to achieve such goals.” Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir.

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1985). This is not a high burden to reach. See id. (prisoner’s allegations that search was

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arbitrary and capricious sufficient to satisfy this inquiry). Plaintiff states that there were no
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penological goals related to such tactics. The Court can think of no circumstance in which

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the planting of contraband alleged here would advance a legitimate goal. Thus, the Court

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finds that Plaintiff has satisfied the fifth prong.

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In sum, Plaintiff has stated a claim against Defendant Nail for retaliation in planting
contraband in his cell.

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However, Plaintiff fails to include facts showing that Defendant Garza was involved
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with the planting of contraband. Plaintiff was advised that to state a claim against
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Defendant Garza, he would need to allege facts that link Garza to the retaliatory act, i.e.,

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planting the weapon.

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(ECF No. 20.)

The Third Amended Complaint alleges that

Defendant Garza assisted in the search of Plaintiff’s cell, but attributes planting the weapon

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to Defendant Nail alone. (Compl. at 3.) Plaintiff was warned that the Court would grant

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only one additional opportunity to amend this claim. (ECF No. 20.) Plaintiff has availed

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himself of that opportunity and left the pleading deficient as to Defendant Garza.

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Therefore, the claim against Defendant Garza is dismissed with prejudice. Noll v. Carlson,

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809 F.2d 1446, 1448 (9th Cir. 1987).

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2.

Second Retaliatory Act

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Plaintiff also alleges that Defendant Nail planted a weapon during a second search

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of Plaintiff’s cell, two months after the first. This time Plaintiff found the weapon and

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reported the incident to the Director of Corrections, who forwarded the matter to Defendant

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Fisher. Fisher then issued a rules violation based on Plaintiff’s possession of the allegedly

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planted weapon.

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In the Court’s previous screening order Plaintiff was notified that this retaliation claim

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was not cognizable, chiefly because Plaintiff did not identify the protected conduct that
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motivated either Defendant Nail or Fisher to retaliate against him. (ECF No. 20). The facts

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pled regarding the second retaliatory act in Plaintiff’s Third Amended Complaint are

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virtually identical to those included in the Second Amended Complaint. In his Third

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Amended Complaint, Plaintiff again fails to set forth what it was he feels caused the

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retaliation. Because Plaintiff was notified that this claim did not satisfy the second prong

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of the analysis and he made no effort to correct the deficiency, the claim is dismissed with
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prejudice. Noll, 809 F.2d at 1448.
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IV.

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CONCLUSION AND ORDER
Plaintiff’s Third Amended Complaint sets forth a cognizable claim against Defendant

Nail for violating his First Amendment rights by conducting a retaliatory cell search and

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planting contraband in his cell. There are no other cognizable claims in the Complaint.

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Accordingly, it is HEREBY ORDERED that:

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1.

This action proceed on Plaintiff’s Third Amended Complaint, filed April 15,

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2011, against Defendant Nail for violation of the First Amendmen with regard to the

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planting of contraband in Plaintiff’s cell on November 6, 2008;

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2.

All other claims are dismissed with prejudice for failure to state a claim under

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Section 1983.
IT IS SO ORDERED.
Dated:
ci4d6

August 31, 2011

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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