Fields v. Adam et al

Filing 15

ORDER Dismissing Claims Against All Defendants For Failure to State a Claim, signed by Magistrate Judge Michael J. Seng on 9/12/11. CASE CLOSED. (Gonzalez, R)

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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-01770-MJS (PC)

ORDER DISMISSING CLAIMS AGAINST ALL
DEFENDANTS FOR FAILURE TO STATE A
COGNIZABLE CLAIM

v.

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B. VIKJORD, et al.,

(ECF No. 13)

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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 October 8, 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 has consented to Magistrate Judge jurisdiction. (ECF No. 4.)

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Plaintiff’s Complaint (ECF No. 1) was screened and dismissed, with leave to amend,

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on December 8, 2010. (ECF No. 12.) Plaintiff’s First Amended Complaint, filed December
20, 2010, is now before the Court for screening. (ECF No. 13.)

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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 correctional officers conspired

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to violate Plaintiff’s First Amendment rights: B. Vikjord, A. Covert, R. Magvas, and K. Foley.

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Plaintiff alleges the following:

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On November 13, 2008, the Defendants conspired to delay Plaintiff’s return from

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the yard so that Defendants Vikjord and Covert had time to conduct a retaliatory search

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of Plaintiff’s cell. (Compl. at 2 and 3.) During the search, Defendants Vikjord and Covert

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removed thousands of pages of legal documents that had been separated by legal matter

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and shuffled them out of order. Defendants Vikjord and Covert also damaged Plaintiff’s

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legal textbooks and confiscated legal “notes, records, transcripts, declarations from

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inmates and other exhibits . . . .” Various personal items were also confiscated. (Id. at 3.)

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After the search, “Defendants Vikjord and Covert sent [Plaintiff] a [rules violation

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notice], and property cell search slip alleging that they confiscated an altered television

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from [Plaintiff’s] assigned cell.” Plaintiff maintains that his television was unaltered. (Id.

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at 3, 4.)

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Plaintiff alleges that the Defendants conducted the retaliatory search because

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Plaintiff had filed administrative appeals and lawsuits against prison officials and staff.

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Plaintiff alleges that the aforementioned conspiracy had a chilling effect on his First

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Amendment rights and furthered no legitimate penological goal. (Id. at 4.) The Court will

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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

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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
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 Vikjord, Covert, Magvas, and Foley 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 that his cell was searched and his belongings were either left in

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disarray or confiscated because of his grievances and lawsuits against prison staff.

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(Compl. at 4.) Filing a grievance is a First Amendment protected activity and the alleged

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retaliatory cell search is an adverse act for retaliation purposes.

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Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989). Thus, Plaintiff has satisfied the first and

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third prongs of a retaliation claim. Id.

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Valandingham v.

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

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escape liability for a First Amendment violation merely because an unusually determined
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plaintiff persists in his protected activity . . . .” Mendocino Envtl. Ctr. v. Mendocino County,
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192 F.3d 1283, 1300 (9th Cir. 1999). The correct inquiry is to determine whether an

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official’s acts would chill or silence a person of ordinary firmness from future First

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

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at 1300). Plaintiff alleges facts sufficient to satisfy the fourth prong. Having prison staff

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disrupt and confiscate belongings would discourage a person of ordinary firmness from

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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). The Court notified Plaintiff in its

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previous Screening Order that in order to meet this low burden, Plaintiff must at the very

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least allege that the search advanced no penological goal. (ECF No. 12.) The First

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Amended Complaint so alleges. (Compl. at 4.) Thus, the Court finds that Plaintiff has

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satisfied the fifth element.

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The second element of a prisoner retaliation claim focuses on causation and motive.
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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 First Amended Complaint alleges no

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facts indicating that the protected conduct motivated the Defendants to conduct the cell

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search. Plaintiff only concludes that the Defendants’ conduct was motivated by the fact

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that he filed grievances and lawsuits against prison staff. (Compl. at 4.) The Court’s

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previous Screening Order notified Plaintiff that such a conclusory allegation would not

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satisfy the second element of this claim. (ECF No. 12.) The First Amended Complaint fails

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to state a cognizable retaliation claim and reflects no discernable effort to correct the

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previously identified deficiency. No useful purpose would be served in reiterating the

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Court’s earlier directions and giving Plaintiff yet another opportunity to correct a deficiency

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that previously was noted and still went uncorrected. Therefore, Plaintiff’s retaliation claim

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is dismissed with prejudice.

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B.

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Plaintiff also alleges that Defendants are all part of a conspiracy to violate Plaintiff's

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Conspiracy

constitutional rights. (Compl. at 2.) This allegation is insufficient to state a claim. A

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conspiracy claim brought under § 1983 requires proof of “‘an agreement or meeting of the

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minds to violate constitutional rights,’” Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2001)

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(quoting United Steel Workers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1540–41 (9th

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Cir. 1989) (citation omitted)), and an actual deprivation of constitutional rights. Hart v.

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Parks, 450 F.3d 1059, 1071 (9th Cir. 2006) (quoting Woodrum v. Woodward County,

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Oklahoma, 866 F.2d 1121, 1126 (9th Cir. 1989)).

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Plaintiff has not shown an actual deprivation of any constitutional rights. Inasmuch
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as his retaliation claim has been dismissed, Plaintiff cannot state a cognizable § 1983
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claim of conspiracy to retaliate. Plaintiff’s conspiracy claim is dismissed with prejudice.

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IV.

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

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against any of the named Defendants.
Accordingly, it is HEREBY ORDERED that this action be dismissed with prejudice

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for failure to state a claim under Section 1983.

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IT IS SO ORDERED.

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Dated:

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ci4d6

September 12, 2011

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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