Day v. Killian et al

Filing 10

ORDER DISMISSING Plaintiff's Second Amended Complaint For Failure To State A Cognizable Claim (ECF No. 9 ), Clerk Shall Close The Case, signed by Magistrate Judge Michael J. Seng on 1/29/2014. CASE CLOSED.(Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BURTON DAY,

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ORDER
DISMISSING
PLAINTIFF‟S
SECOND AMENDED COMPLAINT FOR
FAILURE TO STATE A COGNIZALBE
CLAIM

Plaintiff,

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CASE NO. 1:13-cv-00679-MJS

v.
WANDA KILLIAN, et al.,

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(ECF NO. 9)

Defendants.

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CLERK SHALL CLOSE THE CASE

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SCREENING ORDER
I.

PROCEDURAL HISTORY

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Plaintiff Burton Day, a civil detainee proceeding pro se, filed this civil rights action

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pursuant to 42 U.S.C. § 1983 on May 9, 2013. (ECF No. 1.) Plaintiff has consented to

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Magistrate Judge jurisdiction. (ECF No. 4.)

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Plaintiff‟s Complaint (ECF No. 1) and First Amended Complaint (ECF No. 7) were

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screened and dismissed, with leave to amend, on October 31, 2013 and December 30,

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2013, respectively, for failure to state cognizable claims. (ECF Nos. 6 and 8.) Plaintiff‟s

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Second Amended Complaint (ECF No. 9) is now before the Court for screening.

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II.

SCREENING REQUIREMENT

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A court has inherent power to control its docket and the disposition of its cases

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with economy of time and effort for both the court and the parties. Landis v. North

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American Co., 299 U.S. 248, 254-55 (1936); Ferdik v. Bonzelet, 963 F.2d 1258, 1260

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(9th Cir. 1991), cert. denied, 506 U.S. 915 (1992). Accordingly, this Court screens all

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complaints filed by plaintiffs in propria persona to ensure that the action is not frivolous

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or malicious, states a claim upon which relief may be granted, and that the complaint

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does not seek monetary relief from a defendant who is immune from such relief.

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A complaint must contain “a short and plain statement of the claim showing that

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the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations

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are not required, but “[t]hreadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct.

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1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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Plaintiff must set forth “sufficient factual matter, accepted as true, to „state a claim that is

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plausible on its face.‟” Id. Facial plausibility demands more than the mere possibility

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that a defendant committed misconduct and, while factual allegations are accepted as

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true, legal conclusions are not. Id. at 1949-50.

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III.

SUMMARY OF SECOND AMENDED COMPLAINT

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The Second Amended Complaint identifies Wanda Killian, Program Director,

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Central California Forensic Conditional Release Program (CONREP), and Steven

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Chase, Social Worker, CONREP, as Defendants.

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Plaintiff alleges the following:

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On approximately June 14, 2012 and again on June 21, 2012, Plaintiff filed a

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grievance complaining that he was being forced to live with “low-functioning and

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irresponsible roommates” during his conditional release in CONREP. On or about June

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22, 2012, Defendant Chase, Plaintiff‟s assigned social worker, responded by raising

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problems with Plaintiff‟s desired living arrangement. He stated that Plaintiff had agreed

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to live in the CONREP approved residence as part of the terms of his conditional

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release and that Plaintiff was not yet ready to live on his own.

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reported that the CONREP treatment team had denied Plaintiff‟s request to move out or

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be assigned a different roommate. (Compl. at 5-7.)

Defendant Chase

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The assertion that Plaintiff was not ready to live on his own contradicts a previous

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statement by Defendant Chase, in a quarterly progress report dated March 14, 2012,

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where he reported that “[Plaintiff] has demonstrated the ability to manage his funds and

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maintain his residence on his own with little or no assistance.” (Id. at 12.) Defendant

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Chase filed the negative grievance responses in retaliation against Plaintiff for exercising

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his First Amendment rights. (Id. at 5.)

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On August 1, 2012, Defendant Killian transferred Plaintiff from a two bedroom

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apartment with a single roommate into a two bedroom duplex with three roommates.

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Other clients in Plaintiff‟s former apartment complex moved into a nicer duplex. Plaintiff

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was the only client moved who received only a single day‟s notice instead of a full week.

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(Id. at 15.) Plaintiff was also forced to pay a higher share of the rent and contribute to a

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communal pantry. (Id. at 15, 16.) Some of the clients with less experience were allowed

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to live on their own while Plaintiff was forced to move into shared living. (Id. at 16.)

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IV.

ANALYSIS

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A.

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Section 1983 “provides a cause of action for the „deprivation of any rights,

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privileges, or immunities secured by the Constitution and laws‟ of the United States.”

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Wilder v. Virginia Hosp. Ass‟n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983).

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Section 1983 is not itself a source of substantive rights, but merely provides a method for

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vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94

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(1989).

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Section 1983

To state a claim under Section 1983, a plaintiff must allege two essential
elements: (1) that a right secured by the Constitution or laws of the United States was

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violated and (2) that the alleged violation was committed by a person acting under the

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color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda

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Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).

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B.

Retaliation

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Allegations of retaliation against a prisoner‟s First Amendment rights to speech or

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to petition the government may support a section 1983 claim. Silva v. Di Vittorio, 658

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F.3d 1090, 1104 (9th Cir. 2011); see also Valandingham v. Bojorquez, 866 F.2d 1135

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(9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995); and Short v.

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Sanzberro, 2009 WL 5110676, *5 (E.D. Cal. Dec. 18, 2009) (“Civil detainees are

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protected from retaliation by the First Amendment.”). “Within the prison context, a viable

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

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

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protected conduct, and that such action (4) chilled the inmate‟s exercise of his First

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Amendment rights, and (5) the action did not reasonably advance a legitimate

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correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); accord

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Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012); Silva, 658 at 1104; Brodheim

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

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The amended complaint alleges that Defendant Chase filed a negative grievance

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response containing false statements and Defendant Killian imposed punitive conditional

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release terms in retaliation against Plaintiff for filing grievances. Filing a grievance is a

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First Amendment protected activity. Valandingham, 866 F.2d at 1138. However, the

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allegations set forth in the amended complaint are not sufficient to establish that

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Plaintiff‟s grievances were the substantial or motivating factor behind the Defendant‟s

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conduct. Brodheim, 584 F.3d at 1271 (citing Soranno‟s Gasco, Inc. v. Morgan, 874 F.2d

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1310, 1314 (9th Cir. 1989)).

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Defendant Chase replied to Plaintiff‟s grievances according to CONREP

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procedure. The fact that Plaintiff‟s complaint necessitated a response and that response

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disagreed and rejected Plaintiff‟s proposal does not equate to retaliation. In this Circuit,

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Plaintiff need “only put forth evidence of retaliatory motive that, taken in the light most

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favorable to him, presents a genuine issue of material fact as to” Defendant‟s motivation.

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Id. (citing Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003)) (internal quotation marks

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omitted). The response authored by Defendant Chase raises seemingly valid arguments

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addressing the merits of Plaintiff‟s request.

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Plaintiff‟s fitness to live alone is inconsistent with a previous statement made months

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prior does not establish that the Defendant‟s response was fueled by an improper

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motive.

The fact that his statement regarding

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Defendant Killian was allegedly responsible for imposing a series of unfair living

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conditions that disproportionately affected Plaintiff. These terms were instituted months

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after Plaintiff‟s grievances and the amended complaint offers no factual allegations

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suggesting they motivated Defendant Killian. The mere possibility that either Defendant

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was motivated by Plaintiff‟s grievances is not sufficient to state a claim. Iqbal, 129 S.Ct.

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at 1949-50.

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Plaintiff has not identified facts to support his conclusion that the Defendants

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were motivated by his exercise of First Amendment protected rights. As such, it fails to

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state a claim.

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The Court has twice previously instructed Plaintiff on the applicable legal

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standards for pleading such claims and invited him to allege true facts bringing his case

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within those standards. His failure to do so to date is reason to conclude he cannot do

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so.

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guidelines and another opportunity to try to meet them. Leave to amend is denied.

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V.

No reasonable purpose would be served by yet again giving him the same

CONCLUSION AND ORDER

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For the reasons stated above, the Court finds that Plaintiff‟s Second Amended

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Complaint fails to state a claim upon which relief may be granted and that leave to

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amend would be futile. See Noll v. Carson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).

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Accordingly, Plaintiff‟s Second Amended Complaint is DISMISSED WITH PREJUDICE

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for failure to state a claim. The Clerk shall close the case.

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IT IS SO ORDERED.
Dated:

January 29, 2014

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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