Fields v. Rosenthal

Filing 21

ORDER GRANTING 20 Defendant's Request for the Court to Screen the Second Amended Complaint and for Extension of Time; ORDER Finding that Plaintiff States a Cognizable Claim for Retaliation Against Defendant Rosenthal; and ORDER GRANTING Defendant Rosenthal an Extension of Time Until 12/14/2012 in Which to File a Response to Plaintiff's Second Amended Complaint, signed by Magistrate Judge Gary S. Austin on 11/6/2012. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KEVIN FIELDS,

1:10-cv-01764-GSA-PC

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ORDER GRANTING DEFENDANT’S
REQUEST FOR THE COURT TO SCREEN
THE SECOND AMENDED COMPLAINT
AND FOR EXTENSION OF TIME
(Doc. 20.)

Plaintiff,
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vs.
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R. ROSENTHAL,

ORDER FINDING THAT PLAINTIFF STATES
A COGNIZABLE CLAIM FOR RETALIATION
AGAINST DEFENDANT ROSENTHAL

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Defendant.
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DEADLINE FOR DEFENDANT ROSENTHAL
TO FILE RESPONSE TO SECOND
AMENDED COMPLAINT: DECEMBER 14,
2012

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I.

BACKGROUND

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Kevin Fields (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action

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pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action by civil complaint at the Kings County

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Superior Court on August 11, 2010 (Case #10-C0309). On September 23, 2010, defendant

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Rosenthal (“Defendant”) removed the case to federal court by filing a Notice of Removal of Action

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pursuant to 28 U.S.C. § 1441(b). (Doc. 1.) On October 7, 2010, Plaintiff filed the First Amended

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Complaint. (Doc. 5.) The Court screened the First Amended Complaint pursuant to 28 U.S.C. §

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1915A and entered an order on May 21, 2012, requiring Plaintiff to either file a Second Amended
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Complaint, or indicate his willingness to proceed on the claims found cognizable by the Court.

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(Doc. 9.) On May 11, 2012, Plaintiff notified the Court that he was willing to proceed on the claims

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found cognizable by the Court. (Doc. 11.) On June 20, 2012, Defendant Rosenthal filed a motion

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to dismiss the First Amended Complaint for failure to state a claim. (Doc. 12.)

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On July 5, 2012, Plaintiff filed a motion for reconsideration of the Court’s screening order

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of May 21, 2012.

(Doc. 13.) On July 26, 2012, the Court denied Plaintiff’s motion for

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reconsideration and granted him another opportunity to either file a Second Amended Complaint or

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indicate his willingness to proceed on the claims found cognizable by the Court. (Doc. 16.) On

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August 24, 2012, Plaintiff filed the Second Amended Complaint. (Doc. 17.) On August 24, 2012,

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in light of the filing of the Second Amended Complaint, the Court denied Defendant’s motion to

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dismiss as moot. (Doc. 18.)

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On October 26, 2012, the Court entered an order requiring Defendant to file a response to

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the Second Amended Complaint within thirty days. (Doc. 19.) On October 31, 2012, Defendant

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filed a request for the Court to conduct a screening of the Second Amended Complaint pursuant to

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28 U.S.C. § 1915A, and for an extension of time to file a response to the Second Amended

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Complaint. (Doc. 20.)

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II.

REQUEST FOR COURT TO SCREEN SECOND AMENDED COMPLAINT

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A.

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

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

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

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall

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dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a

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claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

Screening Requirement

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A complaint is required to 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 not
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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, 129 S.Ct. 1937, 1949 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)). While a plaintiff’s

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allegations are taken as true, courts “are not required to indulge unwarranted inferences,” Doe I v.

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Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation

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omitted). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim that

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is plausible on its face.’” Iqbal 129 S.Ct. at 1949. While factual allegations are accepted as true,

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legal conclusions are not. Id.

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To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations to state

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a plausible claim for relief. Iqbal, 129 S.Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962,

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969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility

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standard. Id.

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B.

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Defendant requests the Court to screen the Second Amended Complaint pursuant to 28

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U.S.C. § 1915A(a), in light of differences between Plaintiff’s factual allegations in the First

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Amended Complaint and the Second Amended Complaint. Good cause appearing, Defendant’s

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request shall be granted by this order.

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III.

Defendant’s Request for Screening

SUMMARY OF SECOND AMENDED COMPLAINT

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Plaintiff is presently incarcerated at Corcoran State Prison in Corcoran, California, where the

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events at issue allegedly occurred. Plaintiff names only one defendant, Richard Rosenthal (Senior

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Librarian). Plaintiff alleges as follows in the Second Amended Complaint.

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On January 5, 2010, while in the law library, Plaintiff gave Defendant a law-library priority

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legal user (“PLU”) verification application and documentation from the Court showing that Plaintiff

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had a thirty-day court deadline. Rosenthal denied Plaintiff’s request for PLU status, stating, “As the

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Court said, you failed to exhaust your administrative remedies.” (Second Amd Cmp, Doc. 17 ¶10.)

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Plaintiff attempted to explain why he needed PLU status, and Rosenthal replied that he “didn’t give

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a fuck,” and he was not going to approve the PLU status. (Id. ¶11.) Rosenthal told Plaintiff to “just

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snitch on him, like [Plaintiff] snitch[es] on everyone else in [his] lawsuits.” (Id.) Plaintiff filed a
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staff complaint against Defendant, based on this incident.

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On the morning of February 1, 2010, while in the law library, Plaintiff was providing legal

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assistance to another inmate and asked the inmate for a case law citation. Upon overhearing

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Plaintiff, Defendant approached Plaintiff, using vulgarities and threatening to kick Plaintiff out of

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the law library if he continued asking the inmate for case law citations. Plaintiff asked Defendant

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if he was going to provide Plaintiff with the citations, and Defendant said, “Hell, no,” then told

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Plaintiff to “shut the fuck up.” (Id. ¶15.) Plaintiff asked Defendant why he was working in the law

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library if he was not going to assist inmates, and Defendant became irate and snatched Plaintiff’s

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PLU Status paperwork, ripped it up and threw it in the trash can. Plaintiff notified a correctional

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officer who retrieved the documents from the trash can and notified Defendant’s supervisors of the

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situation.

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IV.

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PLAINTIFF’S RETALIATION CLAIM
The Civil Rights Act under which this action was filed provides:

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Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the deprivation
of any rights, privileges, or immunities secured by the Constitution .
. . shall be liable to the party injured in an action at law, suit in equity,
or other proper proceeding for redress.

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42 U.S.C. § 1983. “Section 1983 . . . creates a cause of action for violations of the federal

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Constitution and laws.” Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997)

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(internal quotations omitted).

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To state a claim for retaliation under the First Amendment, Plaintiff must satisfy five

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elements. Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). First, the plaintiff must allege

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that the retaliated-against conduct is protected. The filing of an inmate grievance is protected

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conduct. Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005). Second, the plaintiff must claim

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the defendant took adverse action against the plaintiff. Id. at 567. The adverse action need not be

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an independent constitutional violation. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). “[T]he

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mere threat of harm can be an adverse action . . . .” Brodheim, 584 F.3d at 1270. Third, the plaintiff

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must allege a causal connection between the adverse action and the protected conduct. Because

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direct evidence of retaliatory intent rarely can be pleaded in a complaint, allegation of a chronology
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of events from which retaliation can be inferred is sufficient to survive dismissal. Pratt, 65 F.3d at

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808 (“timing can properly be considered as circumstantial evidence of retaliatory intent”); Murphy

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v. Lane, 833 F.3d 106, 108-09 (7th Cir. 1987). Fourth, the plaintiff must allege that the “official’s

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

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Rhodes, 408 F.3d at 568 (internal quotation marks and emphasis omitted). “[A] plaintiff who fails

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to allege a chilling effect may still state a claim if he alleges he suffered some other harm,”

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Brodheim, 584 F.3d at 1269, that is “more than minimal,” Rhodes, 408 F.3d at 568 n. 11. That the

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retaliatory conduct did not chill the plaintiff from suing the alleged retaliator does not defeat the

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retaliation claim at the motion to dismiss stage. Id. at 569. Fifth, the plaintiff must allege “that the

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prison authorities’ retaliatory action did not advance legitimate goals of the correctional institution

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. . . .” Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985). A plaintiff successfully pleads this

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element by alleging, in addition to a retaliatory motive, that the defendant’s actions were arbitrary

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and capricious, id., or that they were “unnecessary to the maintenance of order in the institution,”

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Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir. 1984).

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Plaintiff alleges that defendant Rosenthal refused to grant Plaintiff PLU status, which denied

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Plaintiff priority access to the law library, despite Plaintiff’s presentation of documentation from the

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Court showing he had a thirty-day court deadline, telling Plaintiff to just snitch on him like in

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Plaintiff’s other lawsuits. Plaintiff also alleges that Defendant tore up Plaintiff’s PLU status

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paperwork and threw it in the trash, and threatened to kick Plaintiff out of the law library for

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providing legal assistance to another inmate. These allegations are sufficient to state a cognizable

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claim against defendant Rosenthal for retaliation against Plaintiff in violation of the First

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Amendment.

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V.

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REQUEST FOR EXTENSION OF TIME
Defendant requests an extension of time to file a response to the Second Amended

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Complaint. Good cause appearing, the request shall be granted.

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VI.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

Defendant’s request for the Court to screen the Second Amended Complaint pursuant

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to 28 U.S.C. § 1915A(a), and for an extension of time, filed on October 31, 2012, is

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GRANTED;

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2.

The Court finds that Plaintiff’s Second Amended Complaint states a cognizable

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claim against Defendant Richard Rosenthal for retaliation, in violation of the First

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Amendment; and

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3.

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Defendant Rosenthal is GRANTED an extension of time until December 14, 2012
in which to file a response to Plaintiff’s Second Amended Complaint.

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IT IS SO ORDERED.
Dated:
6i0kij

November 6, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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