Griffin v. Johnson et al

Filing 29

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS Regarding Dismissal of Certain Claims 26 , signed by District Judge Lawrence J. O'Neill on 8/26/15: Plaintiff's requests for declaratory and injunctive relief are dismissed. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MATTHEW JAMES GRIFFIN,

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Plaintiff,
v.
A. JOHNSON, et al.,
Defendants.

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1:13-cv-01599-LJO-BAM (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS REGARDING
DISMISSAL OF CERTAIN CLAIMS
(ECF No. 26)

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Plaintiff Matthew James Griffin (“Plaintiff”), a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983, filed this action on

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September 30, 2013. (ECF No. 1.) On August 3, 2015, the Magistrate Judge screened Plaintiff’s

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first amended complaint and found he stated a cognizable claim for excessive force and for

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deliberate indifference to serious medical needs in violation of the Eighth Amendment against

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Defendants Johnson, Gonzales, Valdez, Munoz, Sexton, Ross, Thor, Doe, Kul, Busch, Bell, and

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Smith. (ECF No. 27.) Service on those Defendants is currently pending.

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On that same date, the Magistrate Judge also issued Findings and Recommendations

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recommending that (1) Plaintiff’s claim that Defendant Johnson retaliated against him in

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violation of the First Amendment be dismissed for failure to state a claim; and (2) Plaintiff’s

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claims for a declaratory judgment and injunctive relief be dismissed. (ECF No. 26, pp. 8-9.)

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The Findings and Recommendations were served on Plaintiff with instructions that any

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objections must be filed within fourteen days. Plaintiff timely filed his objections to the Findings

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and Recommendations on August 21, 2015. (ECF No. 28.)

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

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a de novo review of the case and has considered Plaintiff’s objections to the Findings and

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Recommendations. Having carefully reviewed the entire file, the Court finds that the Findings

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and Recommendations are supported by the record and proper analysis, and Plaintiff’s objections

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do not provide a basis to not adopt the Findings and Recommendations.

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Some of Plaintiff’s “objections” are actually suggestions for text corrections, which need
not be addressed. Plaintiff also makes no objections to the Magistrate Judge’s recommendation

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that his claims for declaratory judgment and injunctive relief be dismissed. Plaintiff’s only

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substantive objections are to the Magistrate Judge’s recommendation that his First Amendment

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retaliation claim against Defendant Johnson be dismissed. The Court finds no merit to his

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arguments.

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In making the Findings and Recommendations, the Magistrate Judge noted that Plaintiff

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alleged, among other things, that on May 23, 2012, Defendants planned, participated in or

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supervised the use of chemical weapons on Yard 4A, inside Building 4R, within B section,

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which contained cells that housed Plaintiff and other inmates. (ECF No. 26, p. 3.) Specifically,

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Defendants allegedly discharged chemical weapons at the prisoner in cell #25, in a manner

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designed to direct the chemical weapons on bystander inmates, including Plaintiff. (Id.) Prior to

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the alleged discharge of chemical weapons, Plaintiff contends that he asked Defendant Johnson

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(and others) to evacuate him to a secure area. (Id.) Defendant Johnson allegedly refused to

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evacuate Plaintiff or order his evacuation, and reminded him that he had previously filed a staff

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complaint against Defendant Johnson. (Id.) Defendant Johnson also allegedly stated to Plaintiff,

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“You won’t be writing today – you’ll be choking on O.C.” (Id.) Plaintiff further alleged that the

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Defendants evacuated two prisoners from B section before using the chemical weapons,

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including a prisoner housed in cell #26, but refused evacuation of all others. (Id.)

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After setting forth these allegations, the Magistrate Judge noted that to plead a viable
First Amendment retaliation claim in the prison context, a plaintiff must provide “(1) An
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assertion that a state actor took some adverse action against an inmate (2) because of (3) that

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prisoner’s 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 correctional goal.”

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(ECF No. 26, p. 8 (quoting Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005)).)

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Accepting Plaintiff’s allegations as true, the Magistrate Judge found that Plaintiff failed to state a

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cognizable retaliation claim against Defendant Johnson because he alleged that the Defendants

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only evacuated two prisoners from B section prior to the use of any chemical weapons. (Id. at

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8.) This fact indicated Plaintiff was not singled out because of any protected conduct, which

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meant he did not—and cannot—sufficiently allege the second element of his First Amendment

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retaliation claim against Defendant Johnson. (See Id.)
Plaintiff first argues that the Magistrate Judge’s reasoning is flawed because it is based on

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an assumption that he was “not targeted because of his prior First Amendment activities” since

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other inmates were also not evacuated. (ECF No. 28, p. 2.) He next argues that the issue of

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Defendant Johnson’s motivation should be submitted to a jury. (Id. at 3-4.) Finally, he argues

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that the facts he pleaded, when taken as true, are sufficient to state a claim for retaliation in

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violation of the First Amendment against Defendant Johnson, and therefore he need not amend

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his claim. (Id. at 5.)

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For a First Amendment retaliation claim, “proof of an improper motive is not sufficient to

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establish a constitutional violation—there must also be evidence of causation.” Hartman v.

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Moore, 547 U.S. 250, 260, 126 S. Ct. 1695, 1703 (2006) (quoting Crawford-El v. Britton, 523

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U.S. 574, 593, 118 S. Ct. 1584, 1594 (1998)). Rather, the plaintiff must show but-for

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causation—that is, he must demonstrate that the state actor would not have taken an adverse

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action against him but-for his protected conduct. See Id. at 260, 126 S. Ct. at 1703-04.

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“[A]ction colored by some degree of bad motive does not amount to a constitutional tort if that

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action would have been taken anyway.” Id. (citing Crawford-El, 523 U.S. at 593, Mt. Healthy

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City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285-286, 97 S. Ct. 568, 575 (1977)).

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In this case, even accepting as true Plaintiff’s allegations that Defendant Johnson had

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some kind of retaliatory animus in failing to evacuate him from his cell before the Defendants
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deployed chemical weapons, he also alleged that the Defendants left nearly all of the other

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inmates in B section in their cells. In fact, according to Plaintiff, there were only two inmates

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evacuated, including the person in the cell adjacent to the targeted inmate. Thus by Plaintiff’s

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own version of events, he would not have been evacuated by Defendant Johnson even if that

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officer did not have any alleged bad motive for his part in the actions. As a result, Plaintiff has

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not pleaded that he was retaliated against because of his protected conduct, and since he has

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affirmatively alleged otherwise, this defect cannot be cured by amendment, as found by the

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Magistrate Judge.
Accordingly, IT IS HEREBY ORDERED that:

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1. The Findings and Recommendations dated August 3, 2015 (ECF No. 26), are

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ADOPTED IN FULL;

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2. Plaintiff’s claim against Defendant Johnson for retaliation in violation of the First

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Amendment is dismissed, with prejudice, for failure to state a claim upon which

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relief may be granted; and
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Plaintiff’s requests for declaratory and injunctive relief are dismissed.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

August 26, 2015

UNITED STATES DISTRICT JUDGE

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