Day v. Killian et al

Filing 8

ORDER DISMISSING 7 First Amended Complaint with leave to amend; ORDERED to Amend Complait within 30 Days, signed by Magistrate Judge Michael J. Seng on 12/28/13. (30) Day Deadline (Attachments: # 1 Amended Complaint Form, # 2 First Amended Complaint, dated December 2, 2013)(Martin-Gill, S)

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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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Plaintiff,

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CASE NO. 1:13-cv-00679-MJS
ORDER DISMISSING FIRST AMENDED
COMPLAINT WITH LEAVE TO AMEND

v.
(ECF NO. 7)
WANDA KILLIAN, et al.,

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AMENDED COMPLAINT DUE WITHIN
THIRTY (30) DAYS

Defendants.

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SCREENING ORDER
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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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On October 31, 2013, Plaintiff‟s Complaint was screened and dismissed, with
leave to amend, for failure to state a cognizable claim. (ECF No. 6.) Plaintiff‟s First

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Amended Complaint (ECF No. 7) 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 FIRST AMENDED COMPLAINT

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The First Amended Complaint identifies Wanda Killian, Program Director, Central

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California Forensic Conditional Release Program (CONREP), and Chris Chapa, Anka

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Behavioral, Inc, as Defendants.

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Plaintiff alleges the following:

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Defendant Killian moved Plaintiff from independent living to a room and board

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situation in retaliation for Plaintiff having filed various grievances. The move served no

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legitimate purpose. Plaintiff was forced to live with low functioning roommates, his rent

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increased, and he was required to contribute money for a communal pantry. The move

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caused Plaintiff to lose valuable furniture.

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Plaintiff asserts that the Defendants violated his First and Fourteenth Amendment

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rights. (Compl. at 4, 5.)

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IV.

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ANALYSIS
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Section 1983
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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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To state a claim under Section 1983, a plaintiff must allege two essential

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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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The amended complaint is brief and more fragmented than Plaintiff‟s original

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pleading. The Court is able to discern the basis for Plaintiff‟s assertion that Defendant

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Killian imposed arbitrary rental obligations in retaliation for Plaintiff‟s exercise of his First

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Amendment right to file grievances.

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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 Killian imposed punitive

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

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grievance is a First Amendment protected activity. Valandingham, 866 F.2d at 1138.

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Plaintiff alleges that he filed a “grievance originally concerning the exorbitant amount for

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rent for the first room and board situation.” (Compl. at 8.) The grievance, attached as an

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exhibit to the amended complaint, addresses some of the terms that Plaintiff asserts are

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retaliatory.

(Id. at 9 and 10.)

The Court previously explained that if the punitive

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conditional release terms are the subject of Plaintiff‟s grievance then they necessarily

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could not have been motivated by Plaintiff having filed a grievance.

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complaint does not identify a grievance that preceded an adverse act. Plaintiff has failed

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to state a claim because his allegations do not demonstrate that a grievance was the

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substantial or motivating factor in Defendant Killian‟s decision to impose punitive

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conditional release terms. Brodheim, 584 F.3d at 1271 (citing Soranno‟s Gasco, Inc. v.

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Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989)).

The amended

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The Court will grant Plaintiff one final opportunity to amend because his

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allegations are so fragmented. Should he choose to amend, Plaintiff must carefully set

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out the relevant factual allegations in chronological order.

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adverse act, the Defendant responsible, and explain how the protected conduct was a

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“„substantial‟ or „motivating‟ factor behind the defendant‟s conduct.” Id. Although it can

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be difficult to establish the motive or intent of the defendant, a plaintiff may rely on

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circumstantial evidence. Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003) (finding that

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a prisoner established a triable issue of fact regarding prison officials‟ retaliatory motives

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by raising issues of suspect timing, evidence, and statements); Hines v. Gomez, 108

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F.3d 265, 267-68 (9th Cir. 1997); Pratt, 65 F.3d at 808 (“timing can properly be

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considered as circumstantial evidence of retaliatory intent”).

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He must identify each

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Plaintiff must also demonstrate that each defendant personally participated in the

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deprivation of Plaintiff‟s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

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The amended complaint contains no factual allegations describing Defendant Chapa‟s

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role.

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Finally, exhibits may be incorporated by reference, but the Court will not examine

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documents without any direction to establish elements of Plaintiff‟s claim. Plaintiff must

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allege the underlying facts of his claim in a clear and concise manner so the Court can

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easily identify each element of Plaintiff‟s retaliation claim.

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encourages Plaintiff to supply facts satisfying each element of the claim step by step.

The Court strongly

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B.

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Plaintiff also alleges an unspecified Fourteenth Amendment claim and cites

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United States v. Woods, 995 F.2d 894 (9th Cir. 1993) for support. Woods dealt with a

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federal prisoner challenging the revocation of his conditional release based on

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insufficient process. Plaintiff does not explain how Woods is controlling in any way to his

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claims.

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Fourteenth Amendment

The Court will grant Plaintiff leave to amend and more fully explain the basis for

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his Fourteenth Amendment claim.

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V.

CONCLUSION AND ORDER

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Plaintiff‟s First Amended Complaint does not state a claim for relief under section

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1983. The Court will grant Plaintiff one final opportunity to amend. Noll v. Carlson, 809

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F.2d 1446, 1448-49 (9th Cir. 1987). If Plaintiff opts to amend, he must demonstrate that

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the alleged acts resulted in a deprivation of his constitutional rights. Iqbal, 129 S.Ct. at

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1948-49. Plaintiff must set forth “sufficient factual matter . . . to „state a claim that is

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plausible on its face.‟” Id. at 1949 (quoting Twombly, 550 U.S. at 555 (2007)). Plaintiff

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must also demonstrate that each named Defendant personally participated in a

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deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

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Plaintiff should note that although he has been given the opportunity to amend, it

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is not for the purposes of adding new claims. George v. Smith, 507 F.3d 605, 607 (7th
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Cir. 2007). Plaintiff should carefully read this Screening Order and focus his efforts on

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curing the deficiencies set forth above.

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Finally, Plaintiff is advised that Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. As a general

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rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375

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F.2d 55, 57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint

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no longer serves any function in the case. Therefore, in an amended complaint, as in an

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original complaint, each claim and the involvement of each defendant must be

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sufficiently alleged. The amended complaint should be clearly and boldly titled “Second

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Amended Complaint,” refer to the appropriate case number, and be an original signed

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under penalty of perjury. Plaintiff's amended complaint should be brief. Fed. R. Civ. P.

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8(a). Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a

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right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations

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omitted).

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Accordingly, it is HEREBY ORDERED that:

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1.

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The Clerk‟s Office shall send Plaintiff (1) a blank civil rights complaint form

and (2) a copy of his First Amended Complaint, filed December 2, 2013;
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Plaintiff‟s First Amended Complaint is dismissed for failure to state a claim

upon which relief may be granted;

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3.

Plaintiff shall file an amended complaint within thirty (30) days; and

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If Plaintiff fails to file an amended complaint in compliance with this order,

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this action will be dismissed, with prejudice, for failure to state a claim and failure to

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comply with a court order.

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IT IS SO ORDERED.
Dated:

December 28, 2013

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
DEAC _Signature- END:

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