Fields v. Lloren et al

Filing 13

ORDER Recommending Dismissal With Prejudice, signed by Magistrate Judge Michael J. Seng on 9/12/2011. Plaintiff's Objections, if any, due in Thirty (30) days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KEVIN E. FIELDS,

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CASE NO.
Plaintiff,

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1:09-cv-01733-AWI-MJS (PC)

ORDER RECOMMENDING
WITH PREJUDICE

DISMISSAL

v.
(ECF No. 10)

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T. LLOREN, et al.,
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PLAINTIFF’S OBJECTIONS, IF ANY, DUE
IN THIRTY (30) DAYS

Defendants.

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/

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SCREENING ORDER

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I.

PROCEDURAL HISTORY

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On October 2, 2009, Plaintiff Kevin E. Fields, a state prisoner proceeding pro se and

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in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.)

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Plaintiff’s Complaint was dismissed with leave to amend on December 10, 2010. (ECF No.

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9.) Plaintiff filed his First Amended Complaint, now before the Court for screening, on

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December 17, 2010. (ECF No. 10.)
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II.

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

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.

SUMMARY OF COMPLAINT

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The First Amended Complaint alleges the following named defendants violated

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Plaintiff’s First Amendment rights: (1) Teresa Lloren, Staff Service Representative at

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Corcoran State Prison (“Corcoran”) and (2) D.C. Battles, Correctional Sergeant at

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Corcoran.

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Plaintiff alleges the following:

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On May 5, 2008 Plaintiff requested permission from Defendant Battles to use the

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phone pursuant to a court order. Defendant Battles would not allow Plaintiff to make a

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phone call without approval from the litigation office. (Compl. at 3.) Plaintiff sent a copy

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of the order to Defendant Lloren the same day and requested that Lloren grant the

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approval required by Defendant Battles. (Id. at 3, 4.) Plaintiff was not granted permission

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to make the phone call. (Id. at 4.) On May 11, 2008 Plaintiff filed an emergency appeal,

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requesting “that Plaintiff be allowed to make his court ordered call immediately; [and] that

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the [Defendants] cease/desist retaliating against Plaintiff . . . .” (Id.) Defendant Lloren

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responded to Plaintiff’s emergency appeal on June 16, 2008 by asserting that Plaintiff in

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fact made the court ordered phone call on May 8, 2008. According to Plaintiff, he did not

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make a phone call.

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On June 17, 2008 Defendant Lloren “authored a false rules violation report”

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charging Plaintiff with “abuse of the penal system.” (Id.) Correctional Lieutenant F.

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Martinez voided Defendant Lloren’s rules violation report, wiping it from Plaintiff’s record.

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(Id. at 5.)

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Plaintiff maintains that the Defendant Lloren authored a false rules violation report

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and Defendant Battles endorsed it. The Defendants submitted the report in retaliation for
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Plaintiff filing appeals complaining of their conduct. (Id.) Plaintiff concludes that the

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aforementioned conduct was a constitutional violation as it “had a chilling effect, . . . did not

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serve to advance any legitimate penological interest and/or correctional goal . . .”, and

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caused him to suffer “an actual injury.” (Id.) The Court will address the merits of Plaintiff’s

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claim below.

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IV.

ANALYSIS

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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

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(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

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conclusions are not. Id. at 1949-50.

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Plaintiff seeks to allege an unconstitutional retaliation claim. “Within the prison
context, a viable claim of First Amendment retaliation entails five basic elements: (1) An

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assertion that a state actor took some adverse action against an inmate (2) because of (3)
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that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of

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

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correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).

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Plaintiff alleges that (1) the Defendants filed a false rules violation charging Plaintiff
with abuse of the appeal system (2) because (3) Plaintiff had previously filed an emergency

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appeal on May 11, 2008 complaining about the Defendants’ conduct. Plaintiff further
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alleges that the rules violation filed by the Defendants (4) chilled Plaintiff’s exercise of his
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First Amendment rights and (5) it did not reasonably advance a legitimate correctional goal.

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(Compl. at 5.)

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The First Amended Complaint fails to state a cognizable claim because it does not

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allege that either Defendant effected an adverse action against Plaintiff.

The First

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Amended Complaint alleges that “Correctional Lieutenant/Senior Hearing Officer F.

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Martinez refused to adjudicate the rules violation report . . . . Then he authored a

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memorandum stating as follows: ‘the . . . rules violation report has been voided. Please

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remove and discard the [report] from the central file.’” (Id.) The rules violation report in

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question was reviewed by a senior prison official and it was determined that the report had

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no merit and all record of the report would be destroyed. (Id.) Thus, as Plaintiff admits,

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Defendants’ action resulted in no punishment. A valid retaliation claim requires some

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adverse action that “would chill a person of ordinary firmness” from engaging in that activity

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and must be pled in order to state a retaliation claim. Pinard v. Clatskanie School Dist. 6J,

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467 F.3d 755, 770 (9th Cir. 2006). Without a finding of guilt and the issuance of some

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punishment, Plaintiff has not suffered an adverse act. See, Hudson v. Brian, 2009 WL

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2151177, *1 (E.D. Cal. July 17, 2009) (rules violation accompanied by a punishment held
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to be an adverse act). His position that the Defendants’ reports were false was vindicated
by prison officials.

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Plaintiff previously was given an opportunity to amend this complaint . (ECF No. 9.)

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He has added nothing to the new pleading that would show he was adversely affected by

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Defendant’s allegedly wrongful acts. Moreover, the established fact that Defendants’ false

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report was disregarded by prison officials and Plaintiff suffered no punishment as a result
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of it effectively precludes asserting a claim based thereon. Accordingly, no useful purpose
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would be served by granting an additional opportunity to amend.

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IV.

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CONCLUSION AND RECOMMENDATIONS
Plaintiff’s First Amended Complaint does not state a cognizable retaliation claim

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against either of the named Defendants.
Accordingly, it is HEREBY RECOMMENDED that:

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This action be dismissed with prejudice for failure to state a claim under

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Section 1983.

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These Findings and Recommendations will be submitted to the United States
District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. §

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636(b)(l).

Within thirty (30) days after being served with these Findings and

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Recommendations, Plaintiff may file written objections with the Court. The document

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should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.”

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Plaintiff is advised that failure to file objections within the specified time may waive the right

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to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:

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September 12, 2011

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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