Lewis v. Alison et al

Filing 57

FINDINGS and RECOMMENDATIONS Regarding Defendants' 33 Motion to Dismiss signed by Magistrate Judge Barbara A. McAuliffe on 07/28/2014. Referred to Judge O'Neill; Objections to F&R due by 9/2/2014. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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HOMER TYRONE LEWIS,

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KATHLEEN ALISON, et al.,

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Defendants.

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1:12-cv-00856-LJO-BAM (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING DEFENDANTS’ MOTION TO
DISMISS (ECF No. 33)
THIRTY-DAY DEADLINE

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Findings and Recommendations

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I.

Procedural History

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Plaintiff Homer Tyrone Lewis (“Plaintiff”), a state prisoner proceeding pro se and in

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forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on May 25, 2012. This

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action proceeds on Plaintiff’s third amended complaint against Defendants Alison, Adams,

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Junious, Denny, Parra and Garza for retaliation in violation of the First Amendment of the

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United States Constitution.1 28 U.S.C. § 1915A.
On April 30, 2014, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure,

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Defendants Alison, Parra and Garza filed a motion to dismiss for failure to state a claim and on

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the ground of qualified immunity. Plaintiff opposed the motion on June 23, 2014. Defendants

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replied on June 30, 2014. The motion is deemed submitted. Local Rule 230(l).

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Plaintiff’s claims for declaratory relief and for damages against defendants in their official capacities were
dismissed, along with his denial of access claim and his California Penal Code § 2601 claim.

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As discussed below, the Court recommends that Defendants’ motion to dismiss be

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granted in part and denied in part and that the action against Defendants Garza and Parra be

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dismissed for failure to state a claim.
II.

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Defendants’ Motion to Dismiss
A. Legal Standard

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A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency of a

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claim, and dismissal is proper if there is a lack of a cognizable legal theory or the absence of

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sufficient facts alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d

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1240, 1241-42 (9th Cir. 2011) (quotation marks and citations omitted). In resolving a 12(b)(6)

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motion, a court’s review is generally limited to the operative pleading. Daniels-Hall v. National

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Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010); Sanders v. Brown, 504 F.3d 903, 910 (9th Cir.

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2007); Huynh v. Chase Manhattan Bank, 465 F.3d 992, 1003-04 (9th Cir. 2006); Schneider v.

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California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998).
To survive a motion to dismiss, a complaint must contain sufficient factual matter,

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accepted as true, to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662,

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678, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555,

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127 S.Ct. 1955, 1964-65 (2007)) (quotation marks omitted); Conservation Force, 646 F.3d at

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1242; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The Court must accept

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the well-pleaded factual allegations as true and draw all reasonable inferences in favor of the

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non-moving party. Daniels-Hall, 629 F.3d at 998; Sanders, 504 F.3d at 910; Huynh, 465 F.3d at

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996-97; Morales v. City of Los Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000). Further, prisoners

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proceeding pro se in civil rights actions are still entitled to have their pleadings liberally

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construed and to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338, 342 (9th

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Cir. 2010) (citations omitted).

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B.

Discussion

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Retaliation

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Plaintiff is proceeding on a retaliation claim, and “[w]ithin the prison context, a viable

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

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actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected

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

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(5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson,

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408 F.3d 559, 567-68 (9th Cir. 2005); accord Watison v. Carter, 668 F.3d 1108, 1114-15 (9th

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Cir. 2012); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009).

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In his third amended complaint, Plaintiff alleges that on January 31, 2011, Defendant

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Parra removed Plaintiff from his cell and conducted a cell search. Defendant Parra told Plaintiff

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that Defendants Alison and Denny were removing him to Administrative Segregation for

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allegations of a threat to murder a correctional officer on Facility D. During the cell search,

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Defendant Parra confiscated three boxes of his civil file pertaining to his pending civil case.

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Plaintiff asked Defendant Parra why only his legal materials were being confiscated. (ECF No.

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21, pp. 6-7.) On February 1, 2011, Defendant Denny interviewed Plaintiff and stated, “This Ad-

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Seg placement will teach you not to file lawsuits against my former boss, Derral G. Adams.”

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(ECF No. 21, p. 7.) On February 28, 2011, Plaintiff requested return of his legal materials.

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Plaintiff was dissatisfied with the response from Defendant Parra and requested supervisor

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review. (ECF No. 21, p. 7.) On March 14, 2011, Defendant Denny approached Plaintiff’s cell in

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Ad-Seg and stated, “I was informed by Kathleen Alison that you … recently filed a staff

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complaint against me and the attorney general’s office informed me that you sent a letter to them

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about the statement I made to you on February 1, 2011, about filing lawsuits against my former

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boss Mr. Derral Adams, and sent letter to the federal court in a motion, and now that I have your

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evidence and other legal materials out of your legal materials to support your lawsuit, that’s the

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last time you’ll pursue lawsuits against my colleague’s [sic] at Corcoran Prison.” (ECF No. 21,

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p. 8.) On June 21, 2011, Plaintiff was scheduled for transfer to Lancaster State Prison. While

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awaiting transfer, Defendant Garza came to interview Plaintiff and stated, “Mr. Lewis, I[’]m here

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to interview you about 602 appeal on missing legal materials and to inform you that Mr. Adams,

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Warden and Mr. Junious, Chief Deputy Warden ordered Captain P. Denny to get your legal

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materials for them, and after Captain P. Denny and ISU reviewed it, the Captain confiscated (1-

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box) of legal materials, and then I personally consolidated the rest of your legal materials into 2-

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Boxes.” (ECF No. 21, p. 9.) Plaintiff contends that Defendants deliberately confiscated his legal

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materials because of Plaintiff’s lawsuits and this action did not further a legitimate penological

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interest. (ECF No. 21, p. 10.)

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Defendants Alison, Parra and Garza argue that they are entitled to dismissal of Plaintiff’s

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claim because the adverse actions at issue -- placement in Administrative Segregation and a

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search of his legal materials -- were taken because Plaintiff reportedly threatened to murder a

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correctional officer on Facility D.

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Defendant Alison

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Defendants first assert that Plaintiff has admitted Defendant Alison ordered his placement

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in administrative segregation due to reports that he threatened to murder a correctional officer,

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which therefore defeats Plaintiff’s retaliation claim against Defendant Alison.

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At this stage, the Court cannot weigh the evidence or assess the credibility of witnesses,

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and Plaintiff is entitled to have the material allegations taken as true and construed in the light

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most favorable to him. Watison, 668 F.3d at 1112. According to Plaintiff’s allegations,

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Defendant Denny suggested to Plaintiff that the removal to Administrative Segregation

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placement, which was reportedly ordered by both Defendant Denny and Defendant Alison, was

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in response to Plaintiff’s filing of a lawsuit. At the pleading stage, this is sufficient to support an

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inference that the removal to Administrative Segregation and corresponding cell search, ordered

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by Defendants Denny and Alison, were retaliatory rather than in furtherance of a legitimate

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correctional goal. Watison, 668 F.3d at 1114.

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For these reasons, the Court recommends that Defendants’ motion to dismiss the claim
against Defendant Alison be denied.

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Defendant Parra

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Defendants argue that Defendant Parra’s search of Plaintiff’s cell and confiscation of

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legal materials served the legitimate goal of protecting institutional safety and security. On the

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face of the complaint, there is no indication that Defendant Parra conducted the cell search and

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confiscated documents for any other reason. In other words, Plaintiff has failed to establish that

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Defendant Parra took an adverse action against Plaintiff because of any protected conduct.

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Rather, Defendant Parra was executing orders from Defendants Alison and Denny based on

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allegations that Plaintiff threatened to murder a correctional officer and not on any knowledge of

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Plaintiff’s protected conduct. Watison, 668 F.3d at 1114-15. As such, the Court recommends

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that Defendants’ motion to dismiss Defendant Parra be granted.

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Defendant Garza

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Defendants contend that Plaintiff has failed to allege that Defendant Garza took any

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adverse action. The Court agrees. Plaintiff merely alleges that Defendant Garza interviewed

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him regarding his 602 and informed him that he consolidated certain of Plaintiff’s legal materials

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into two boxes. There is no indication that Defendant Garza withheld documents from Plaintiff

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or took any adverse action against him because of Plaintiff’s protected conduct. Id. at 1114.

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Accordingly, the Court recommends that Defendants’ motion to dismiss Defendant Garza be

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granted.

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2.

Qualified Immunity

Defendants also argue that they are entitled to qualified immunity, which shields

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government officials from civil damages unless their conduct violates “clearly established

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statutory or constitutional rights of which a reasonable person would have known.” Harlow v.

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Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738 (1982). “Qualified immunity balances two

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important interests - the need to hold public officials accountable when they exercise power

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irresponsibly and the need to shield officials from harassment, distraction, and liability when

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they perform their duties reasonably,” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808,

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815 (2009), and it protects “all but the plainly incompetent or those who knowingly violate the

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law,” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096 (1986).
In resolving a claim of qualified immunity, courts must determine whether, taken in the

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light most favorable to the plaintiff, the defendants’ conduct violated a constitutional right, and if

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so, whether the right was clearly established. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct.

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2151, 2156 (2001); Mueller v. Auker, 576 F.3d 979, 993 (9th Cir. 2009). While often beneficial

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to address in that order, courts have discretion to address the two-step inquiry in the order they

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deem most suitable under the circumstances. Pearson, 555 U.S. at 236, 129 S.Ct. at 818

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(overruling holding in Saucier that the two-step inquiry must be conducted in that order, and the

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second step is reached only if the court first finds a constitutional violation); Mueller, 576 F.3d at

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993-94.
Having already determined that Defendant Alison’s conduct violated the First

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Amendment, the Court must determine whether the right was clearly established.2 “For a

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constitutional right to be clearly established, its contours ‘must be sufficiently clear that a

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reasonable officer would understand that what he is doing violates that right.’” Hope v. Pelzer,

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536 U.S. 730, 739, 122 S.Ct. 2508, 2515 (2002) (citation omitted). While the reasonableness

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inquiry may not be undertaken as a broad, general proposition, neither is official action entitled

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to protection “unless the very action in question has previously been held unlawful.” Hope, 536

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U.S. at 739. “Specificity only requires that the unlawfulness be apparent under preexisting law,”

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Clement v. Gomez, 298 F.3d 898, 906 (9th Cir. 2002) (citation omitted), and prison personnel

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“can still be on notice that their conduct violates established law even in novel factual

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circumstances,” Hope, 536 U.S. at 741. The salient question is whether the state of the law in

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2011 gave Defendant Alison fair warning that her alleged treatment of Plaintiff was

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unconstitutional. Hope, 536 U.S. at 741 (quotation marks omitted).
By 2011, the prohibition against retaliatory punishment was clearly established. Rhodes,

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408 F.3d at 569; Bruce v. Ylst, 351 F.3d 1283, 1290 (9th Cir. 2003). Thus, a reasonable officer
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Based on the recommendation that the action against Defendants Garza and Parra be dismissed, it is unnecessary to
consider whether or not they are entitled to qualified immunity.

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would have known that he could not take adverse action against an inmate for filing a grievance

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or pursuing a lawsuit. Rhodes, 408 F.3d at 567; Bruce, 351 F.3d at 1288. What the evidence

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will show remains to be seen, but under the circumstances as alleged at the pleading stage, which

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the court must deem as true, Defendant Alison is not entitled to qualified immunity. The Court

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recommends that Defendants’ motion to dismiss on the ground of qualified immunity be denied,

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with prejudice to being raised in a 12(b)(6) motion.

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III.

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For the reasons set forth above, the Court HEREBY RECOMMENDS that Defendants’

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motion to dismiss, filed on April 30, 2014, be DENIED IN PART and GRANTED IN PART as

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follows:
1. Defendants’ motion to dismiss this action against Defendant Alison for failure to state
a claim be denied;

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Recommendations

2. Defendants’ motion to dismiss this action against Defendants Parra and Garza for
failure to state a claim be granted with prejudice; and

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3. Defendants’ motion to dismiss this action against Defendant Alison on the ground of

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qualified immunity be denied with prejudice to being raised in a 12(b)(6) motion.

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

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

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thirty (30) days after being served with these Findings and Recommendations, the parties may

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

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

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

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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:

/s/ Barbara

July 28, 2014

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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