Eric Wheeler v. Aliceson et al

Filing 114

ORDER ADOPTING 105 FINDINGS AND RECOMMENDATIONS IN FULL and ORDER DENYING 87 Plaintiff's Motion to Amend the Complaint signed by Chief Judge Lawrence J. O'Neill on 9/15/2016. (Jessen, A)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9
10

ERIC WHEELER,

11

Plaintiff,

12
13

CASE NO. 1:12-cv-00860-LJO-MJS (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATION TO DENY
PLAINTIFF’S MOTION FOR LEAVE TO FILE
AN AMENDED COMPLAINT

v.
K. ALICESON, et al.,

14

(ECF No. 105)

Defendants.

15
16
17

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

18

rights action brought pursuant to 42 U.S.C. § 1983. The matter was referred to a United

19

States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 of the

20

United States District Court for the Eastern District of California.
On

21

January

28,

2016,

the

Magistrate

Judge

issued

findings

and

a

22

recommendation to deny Plaintiff’s motion for leave to file an amended complaint. (ECF

23

No. 105.) Plaintiff filed objections. (ECF No. 106.) Defendants filed a response. (ECF No.

24

107.)

25

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has

26

conducted a de novo review of this case. Having carefully reviewed the entire file, the

27

Court finds the findings and recommendations to be supported by the record and by

28

proper analysis.

1

The Magistrate Judge recommended that Plaintiff be denied leave to amend

2

because his proposed allegations failed to state a cognizable retaliation claim and thus,

3

leave to amend would be futile. Plaintiff devotes a substantial portion of his objections to

4

responding to admonishments from the Magistrate Judge regarding the length of the

5

proposed amended complaint and inclusion therein of claims that already were

6

dismissed with prejudice. These arguments do not raise an issue of fact or law under the

7

findings and recommendations and will not be addressed further.

8

Plaintiff argues that he should have been permitted to file a supplemental

9

complaint instead of an amended complaint. Supplemental pleadings are permitted to

10

add a transaction, occurrence, or event that happened after the date of the pleading to

11

be supplemented. In this case, the pleading to be supplemented (i.e., Plaintiff’s second

12

amended complaint) was filed on January 22, 2013. Although some of the actions

13

Plaintiff seeks to add occurred after that date, many of them occurred in 2011 and 2012.

14

Accordingly, the Magistrate Judge properly required Plaintiff to move to amend his

15

complaint to add these claims.

16

Plaintiff argues he should be allowed to amend because the facts contained in his

17

proposed amended complaint fall within the “continual violation doctrine.” The continuing

18

violation doctrine applies in certain circumstances to allow claims that might otherwise

19

be time barred to proceed. See, e.g., Garcia v. Brockway, 526 F.3d 456, 462 (9th Cir.

20

2008). There is no suggestion at this time Plaintiff’s claims are time-barred and thus no

21

reason to examine the continuing violation doctrine in this case.

22

Plaintiff purports to state new, additional facts to support a finding of adverse

23

action sufficient to chill a person of ordinary firmness to support his proposed retaliation

24

claims. The Court finds Plaintiff’s factual summary difficult to follow. Additionally, some

25

facts appear to be inconsistent with allegations Plaintiff has raised previously.

26

Regardless, however, Plaintiff’s allegations are insufficient to support a claim of

27

retaliation for the reasons stated in the findings and recommendations. He has failed to

28

present facts to show that he has suffered adverse action that would chill a person of
2

1

ordinary firmness from engaging in protected First Amendment activity. Plaintiff contends

2

for the first time that Defendants’ conduct constitutes adverse action because their

3

written reports and chronos could be reviewed during a parole determination. As

4

Defendants point out, however, nothing before the Court indicates whether Plaintiff is

5

eligible for parole. In any event, the allegedly retaliatory communications merely reiterate

6

the contentions that serve as the basis of the operative complaint. Put differently,

7

Defendants expressed concerns regarding Plaintiff’s behavior in chronos written in June

8

2011. They reiterated those concerns – based on Plaintiff’s behavior in June 2011 – later

9

in 2011 and in 2012 and 2014. Plaintiff provides no basis to conclude that such repetition

10

would have any adverse effect on any parole determination.

11

Significantly, the Court also concludes that Plaintiff’s allegation that Defendants’

12

conduct was motivated by retaliation appears to be based purely on conjecture. While

13

Plaintiff plainly engaged in a lengthy course of filing regular administrative grievances

14

and informal complaints over the course of at least three years, this is insufficient to

15

allege that Defendant’s sporadic involvements in his mental health placement following

16

his transfer from their care constituted retaliation. See Estrada v. Gomez, No. No. C 96–

17

1490 S1 (PR), 1998 WL 514068 * 3 (N.D.Cal.1998). Rather, it appears that Plaintiff is

18

requesting the Court to “pass on the legitimacy of all actions the prisoner did not like.” Id.

19

Accordingly, it is HEREBY ORDERED that:

20

1.

21
22
23
24
25

The Court adopts the findings and recommendation, filed January 28, 2016
(ECF No. 105), in full; and

2.

Plaintiff’s motion for leave to file an amended complaint (ECF No. 87) is

DENIED.
IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

September 15, 2016

UNITED STATES CHIEF DISTRICT JUDGE
26

3.

27
28
3