McCoy v. Cacciola et al

Filing 29

SECOND SCREENING ORDER DISMISSING ACTION, With Prejudice, for Failure to State a Claim Under Section 1983 and DIRECTING Clerk's Office to Enter Judgment, signed by Magistrate Judge Sheila K. Oberto on 12/17/2014. CASE CLOSED. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LAKEITH L. MCCOY,

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Case No. 1:13-cv-00995-SKO (PC)

Plaintiff,

SECOND SCREENING ORDER
DISMISSING ACTION, WITH PREJUDICE,
FOR FAILURE TO STATE A CLAIM
UNDER SECTION 1983 AND DIRECTING
CLERK’S OFFICE TO ENTER JUDGMENT

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v.

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S. CACCIOLA,

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Defendant.
_____________________________________/

(Doc. 26)

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Second Screening Order

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17 I.

Procedural Background

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Plaintiff LaKeith L. McCoy, a state prisoner proceeding pro se and in forma pauperis, filed

19 this civil rights action pursuant to 42 U.S.C. § 1983 on June 28, 2013. On August 28, 2013,
20 Plaintiff filed an amended complaint as a matter of right, Fed. R. Civ. P. 15(a), and on April 30,
21 2014, the Court dismissed the amended complaint, with leave to amend, for failure to state any
22 claims, 28 U.S.C. § 1915A. On May 30, 2014, Plaintiff filed a second amended complaint re23 alleging only his First Amendment retaliation claim against Correctional Officer S. Cacciola, a
24 law librarian at California Correctional Institution (“CCI”) in Tehachapi.
25 II.

Screening Requirement and Standard

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The Court is required to screen Plaintiff=s complaint and dismiss the case, in whole or in

27 part, if the Court determines it fails to state a claim upon which relief may be granted. 28 U.S.C. '
28 1915(e)(2)(B)(ii). A complaint must contain “a short and plain statement of the claim showing

1 that the pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are
2 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
3 conclusory statements, do not suffice,” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937
4 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and
5 courts “are not required to indulge unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572
6 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). While factual
7 allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678.
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Pro se litigants are entitled to have their pleadings liberally construed and to have any

9 doubt resolved in their favor, Wilhelm v. Rotman, 680 F.3d 1113, 1121-23 (9th Cir. 2012); Hebbe
10 v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), but Plaintiff=s claims must be facially plausible to
11 survive screening, which requires sufficient factual detail to allow the Court to reasonably infer
12 that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678 (quotation
13 marks omitted); Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer
14 possibility that a defendant acted unlawfully is not sufficient, and mere consistency with liability
15 falls short of satisfying the plausibility standard.

Iqbal, 556 U.S. at 678 (quotation marks

16 omitted); Moss, 572 F.3d at 969.
17 III.

Discussion

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A.

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Plaintiff is presently incarcerated at CCI and he alleges that in May 2013, Defendant

Plaintiff’s Allegations

20 Cacciola retaliated against him for complaining, in violation of his rights under the First
21 Amendment of the United States Constitution. Plaintiff alleges that he had been approved for
22 priority legal user (“PLU”) status between April 15, 2013, and May 15, 2013. On May 1, 2013,
23 Plaintiff went to the law library and requested copies of court documents from Defendant
24 Cacciola. When Plaintiff received his copies, he noticed some were not copied front and back,
25 some were missing half-pages, and his habeas petition was not copied.

Plaintiff notified

26 Defendant Cacciola of these errors but he was told that the copies were appropriate and no
27 corrections would be forthcoming.
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Plaintiff filed a “request for item, service, or interview” form and on May 2, 2013,

2 Defendant Cacciola responded, stating copies had been provided appropriately and nothing further
3 would be provided. (2nd Amend. Comp., ¶10.) Plaintiff then sent the request form to Defendant
4 Cacciola’s supervisor on May 2, 2013.
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On May 6, 2013, Plaintiff was scheduled for the law library but he was removed from the

6 law library list, allegedly in response to initiating the grievance against Defendant Cacciola.
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B.

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“Within the prison context, a viable claim of First Amendment retaliation entails five

First Amendment Retaliation Claim

9 basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2)
10 because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s
11 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate
12 correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). “Prisoners have a
13 First Amendment right to file grievances against prison officials and to be free from retaliation for
14 doing so,” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (citing Brodheim v. Cry, 584
15 F.3d 1262, 1269 (9th Cir. 2009)), and even the mere threat of harm can be sufficiently adverse to
16 support a retaliation claim, Brodheim, 584 F.3d at 1270. Therefore, Plaintiff’s allegations are
17 sufficient to show that he was engaged in protected conduct and that removal from the law library
18 list constituted an adverse action against him.
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However, Plaintiff’s conclusory allegations do not sufficiently support an inference that he

20 was removed from the law library list (1) because of the grievance he filed regarding copies and
21 (2) in the absence of a legitimate correctional goal. While proximity in time between engagement
22 in protected conduct and the alleged retaliation may suffice to support the existence of a retaliatory
23 motive, McCollum v. California Department of Corrections and Rehabilitation, 647 F.3d 870, 882
24 (9th Cir. 2011), here Plaintiff’s allegations amount to nothing more than a conclusion that his
25 removal from the law library was retaliatory, see Huskey v. City of San Jose, 204 F.3d 893, 899
26 (9th Cir. 2000) (after this, therefore because of this is a logical fallacy). “Mere speculation that [a
27 defendant] acted out of retaliation is not sufficient,” Wood v. Yordy, 753 F.3d 899, 905 (9th Cir.
28 2014), and Plaintiff’s second amended complaint lacks of any specific facts supporting improper
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1 motive. Watison, 668 F.3d at 1114. The Court is mindful that Plaintiff is proceeding pro se and
2 this is the pleading stage, but the mere possibility of misconduct fails to support a claim. 1 Iqbal,
3 556 U.S. at 678; Moss, 572 F.3d at 969.
4 III.

Conclusion and Order

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Plaintiff’s second amended complaint fails to state a claim upon which relief may be

6 granted under section 1983. Plaintiff was previously provided with notice of the deficiencies in
7 his claim and he was unable to cure them in his second amended complaint. Akhtar v. Mesa, 698
8 F.3d 1202, 1212-13 (9th Cir. 2012); Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
9 Accordingly, further leave to amend is not warranted and this action is HEREBY ORDERED
10 dismissed, with prejudice, for failure to state a claim upon which relief may be granted under
11 section 1983.
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IT IS SO ORDERED.
Dated:

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December 17, 2014

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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The Court notes that in his first amended complaint, Plaintiff alleged that he spoke with Defendant Cacciola about
being removed from the law library list and Cacciola told him that Sergeant Campbell was supposed to talk to him
about his removal from the list, an allegation which was omitted from the second amended complaint and which tends
to undercut any inference that Plaintiff was removed from the law library list out of retaliation and in the absence of a
legitimate correctional goal. See Air Aromatics, LLC v. Opinion Victoria’s Secret Stores Brand Mgmt., Inc., 744 F.3d
595, 600 (9th Cir. 2014) (“A party cannot amend pleadings to ‘directly contradict an earlier assertion made in the
same proceeding.’”) (quoting Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990)). (Doc. 14, 1st Amend. Comp.,
¶¶17-19.)

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