Kelly v. Jackson et al

Filing 13

FINDINGS And RECOMMENDATIONS Recommending Dismissal Of Plaintiff's Action For Failure To State A Claim (Doc. 1 ), Objections, If Any, Due Within Twenty-One Days, signed by Magistrate Judge Dennis L. Beck on 8/23/2011. F&R's referred to Judge Lawrence J. O'Neill; Objections to F&R due by 9/16/2011. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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RICHARD KELLY,

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Plaintiff,

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CASE NO. 1:11-CV-00393-LJO-DLB PC
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF
PLAINTIFF’S ACTION FOR FAILURE TO
STATE A CLAIM (DOC. 1)

v.
D. JACKSON, et al.,

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OBJECTIONS, IF ANY, DUE WITHIN
TWENTY-ONE DAYS

Defendants.

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/

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Findings And Recommendations
I.

Background

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Plaintiff Richard Kelly (“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 in this

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civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action by filing his

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complaint on November 2, 2010, in Santa Clara County Superior Court. Doc. 1. On February

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22, 2011, Defendants M. White, R. Boccella, D. Jackson, J. Gutierrez, J. Hartley, R. Roberts, M.

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Tuntakit, A. Vargas, and J. Gibson removed the action to this Court. Id.

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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

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

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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been
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paid, the court shall dismiss the case at any time if the court determines that . . . the action or

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appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. §

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1915(e)(2)(B)(ii).

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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 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

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

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

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550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.

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II.

Summary Of Complaint

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Plaintiff was previously incarcerated at Avenal State Prison (“ASP”) in Avenal,

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California, where the events giving rise to this action occurred. Plaintiff names as Defendants

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correctional officers Jackson, Gibson, and Roberts. Plaintiff also names Defendants J. Gutierrez,

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A. Vargas, M. Tuntakit, James D. Hartley, R. Boccella, M. Whiteman, and Does 1 through 10 in

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the caption of his complaint.

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Plaintiff alleges the following. On August 26, 2010, at approximately 3:30 a.m.,

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correctional officer Alvarez woke up Plaintiff for a.m. kitchen worker release. Plaintiff informed

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officer Alvarez to inform someone that he was not going because he was given a job change that

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he did not want, and was willing to take a CDC 115 write up for it.

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At 3:45 a.m., officer Alvarez informed Plaintiff that a sergeant would be in the building

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to talk with him. At 4 a..m., Defendants Gibson and Roberts came to Plaintiff’s building.

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Plaintiff explained to Defendant Gibson what he had told officer Alvarez. Plaintiff was told to

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get dressed and get to work, or he would be written up for impeding a peace officer’s count.

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Plaintiff went to retrieve his I.D. card and informed Defendant Gibson that he would like to

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speak to a sergeant. At 4:10 a.m., Defendants Gibson and Roberts escorted Plaintiff to the 1-yard

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support office, where two other Doe officers were present. A few minutes later, Defendant

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Jackson, the 1-yard a.m. kitchen officer, arrived. Defendant Jackson was irate, and asked what
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was Plaintiff’s problem. Plaintiff told Defendant Jackson that he did not want the job and to give

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him the write up. Defendant Jackson then began to use verbally abusive language at Plaintiff,

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which the Court need not repeat.

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Plaintiff was placed into a holding cage for forty-five minutes before he was returned to

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his building. Plaintiff contends a violation of his First, Eighth, and Fourteenth Amendment

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rights. Plaintiff requests as relief compensatory and punitive damages.

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III.

Analysis

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A.

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Plaintiff fails to link Defendants J. Gutierrez, A. Vargas, M. Tuntakit, James D. Hartley,

Linkage Requirement

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R. Boccella, M. Whiteman, and Does 1 through 10 to any act that indicates a violation of

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Plaintiff’s constitutional rights. To state a claim under § 1983, a plaintiff must allege that (1) the

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defendant acted under color of state law and (2) the defendant deprived him of rights secured by

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the Constitution or federal law. Long v. County of L.A., 442 F.3d 1178, 1185 (9th Cir. 2006).

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If Plaintiff is alleging liability on the basis of any Defendants’ roles as supervisors,

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Plaintiff fails to state a claim. The term “supervisory liability,” loosely and commonly used by

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both courts and litigants alike, is a misnomer. Iqbal, 129 S. Ct. at 1949. “Government officials

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may not be held liable for the unconstitutional conduct of their subordinates under a theory of

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respondeat superior.” Id. at 1948. Rather, each government official, regardless of his or her

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title, is only liable for his or her own misconduct. When the named defendant holds a

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supervisory position, the causal link between the defendant and the claimed constitutional

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violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979);

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Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). To state a claim for relief under § 1983

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for supervisory liability, plaintiff must allege some facts indicating that the defendant either:

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personally participated in the alleged deprivation of constitutional rights; knew of the violations

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and failed to act to prevent them; or promulgated or “implemented a policy so deficient that the

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policy ‘itself is a repudiation of constitutional rights’ and is ‘the moving force of the

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constitutional violation.’” Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (internal citations

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omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
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Plaintiff fails to allege any facts that demonstrate Defendants personally participated in

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the alleged deprivation of constitutional rights, knew of constitutional violation and failed to act

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to prevent them, or promulgated a policy that is the moving force of a constitutional violation.

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Hansen, 885 F.2d at 646; Taylor, 880 F.2d at 1045.

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B.

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Plaintiff contends that Defendants retaliated against Plaintiff when he refused to accept a

First Amendment

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work assignment. Allegations of retaliation against a prisoner’s First Amendment rights to

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speech or to petition the government may support a § 1983 claim. Rizzo v. Dawson, 778 F.2d

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527, 532 (9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989);

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Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). “Within the prison context, a viable claim of

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First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took

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some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and

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that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the

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action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d

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559, 567-68 (9th Cir. 2005).

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Plaintiff fails to allege constitutionally protected conduct, or to link constitutionally

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protected conduct to any adverse action by Defendants. Thus, there is no First Amendment

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retaliation claim.

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C.

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The Eighth Amendment protects prisoners from inhumane methods of punishment and

Eighth Amendment

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from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir.

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2006). Extreme deprivations are required to make out a conditions of confinement claim, and

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only those deprivations denying the minimal civilized measure of life’s necessities are

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sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian,

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503 U.S. 1, 9 (1992) (citations and quotations omitted). In order to state a claim for violation of

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the Eighth Amendment, Plaintiff must allege facts sufficient to support a claim that officials

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knew of and disregarded a substantial risk of serious harm to him. E.g., Farmer v. Brennan, 511

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U.S. 825, 837 (1994); Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). Mere negligence on
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the part of the official is not sufficient to establish liability, but rather, the official’s conduct must

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have been wanton. Farmer, 511 U.S. at 835; Frost, 152 F.3d at 1128.

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Wounds to one’s dignity are not Eighth Amendment violations. “[V]erbal harassment or

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abuse . . . [alone] is not sufficient to state a constitutional deprivation under 42 U.S.C. § 1983.”

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Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (citation and internal quotation

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omitted). Plaintiff fails to allege an Eighth Amendment claim.

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D.

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Plaintiff contends that his programming was disrupted by Defendant Jackson. Plaintiff

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has no constitutional right to rehabilitation. Coakley v. Murphy, 884 F.2d 1218, 1221 (9th Cir.

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Fourteenth Amendment

1989); Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985).

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Plaintiff complains that his dignity was verbally taken by Defendants. Plaintiff cannot

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state a cognizable § 1983 claim because reputation alone does not implicate any liberty or

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property interests sufficient to invoke the procedural protection of the Due Process Clause. Paul

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v. Davis, 424 U.S. 693, 701 (1976).

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E.

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Plaintiff lists 42 U.S.C. § 1988 as a cause of action. Section 1988 primarily concerns

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42 U.S.C. § 1988

attorney’s fees, which are not at issue.

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F.

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The Court does not find that Plaintiff will be able to allege additional facts to cure the

Leave To Amend

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deficiencies identified herein. Accordingly, further leave to amend will not be granted. See

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Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc).

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IV.

Recommendation

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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1.

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This action be dismissed for failure to state a claim upon which relief may be
granted under 42 U.S.C. § 1983; and

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2.

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These Findings and Recommendations will be submitted to the United States District

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The Clerk of the Court be directed to close this action.

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty5

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one (21) days after being served with these Findings and Recommendations, the parties may file

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written objections with the Court. The document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendations.” The parties are advised that failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Martinez v.

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Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:

August 23, 2011

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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