Buenrostro v. Castillo et al
Filing
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ORDER DIRECTING Clerk of Court to Randomly ASSIGN District Judge to Action; FINDINGS and RECOMMENDATIONS to Dismiss Certain Claims and Defendants signed by Magistrate Judge Barbara A. McAuliffe on 11/30/2017. Referred to Judge Dale A. Drozd Objections to F&R due within Fourteen (14) Days. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JOSE LUIS BUENROSTRO,
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Plaintiff,
v.
FAJARDO,
Defendant.
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Case No. 1:14-cv-00075-BAM (PC)
ORDER DIRECTING CLERK OF COURT TO
RANDOMLY ASSIGN DISTRICT JUDGE TO
ACTION
FINDINGS AND RECOMMENDATIONS TO
DISMISS CERTAIN CLAIMS AND
DEFENDANTS
FOURTEEN (14) DAY DEADLINE
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Plaintiff Jose Luis Buenrostro (“Plaintiff”) is a federal prisoner proceeding pro se and in
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forma pauperis in this civil rights action pursuant to Bivens v. Six Unknown Named Agents of
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Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff has consented to Magistrate Judge
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jurisdiction. (ECF No. 5.) Defendant Fajardo has also consented to Magistrate Judge
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jurisdiction. (ECF No. 51.)
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On April 13, 2017, the Court screened Plaintiff’s third amended complaint and found that
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he stated a cognizable claim against Defendant Fajardo for retaliation in violation of the First
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Amendment, arising out of the blocking of phone numbers, interference with typewriter access,
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and false accusations regarding possession of a cell phone and related strip searches. The Court
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dismissed all other claims and defendants from this action without prejudice, but without leave to
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amend in this action. (ECF No. 36.) This case has proceeded on Plaintiff’s retaliation claim
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against Defendant Fajardo.
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I.
Williams v. King
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On November 9, 2017, the Ninth Circuit Court of Appeals ruled that 28 U.S.C.
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§ 636(c)(1) requires the consent of all named plaintiffs and defendants, even those not served
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with process, before jurisdiction may vest in a Magistrate Judge to dispose of a civil case.
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Williams v. King, 875 F.3d 500 (9th Cir. 2017). Accordingly, the Ninth Circuit held that a
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Magistrate Judge does not have jurisdiction to dismiss a case during screening even if the plaintiff
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has consented to Magistrate Judge jurisdiction. Id.
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Here, Defendants were not yet served at the time that the Court screened the third
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amended complaint and therefore had not appeared or consented to Magistrate Judge jurisdiction.
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Defendant Fajardo consented to Magistrate Judge jurisdiction once he was served and appeared in
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this action. (ECF No. 51.) Because all Defendants had not consented, the undersigned’s
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dismissal of Plaintiff’s claims is invalid under Williams. Because the undersigned nevertheless
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stands by the analysis in the previous screening order, she will below recommend to the District
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Judge that the non-cognizable claims be dismissed.
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II.
Findings and Recommendations on Third Amended Complaint
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A.
Screening Requirement and Standard
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The Court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. §
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1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or
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malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary
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relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28 U.S.C.
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§ 1915(e)(2)(B)(ii).
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A complaint must contain “a short and plain statement of the claim showing that the
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pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,
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1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65
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(2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge
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unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)
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(internal quotation marks and citation omitted).
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Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings
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liberally construed and to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338,
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342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff’s claims must be facially
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plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each
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named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949
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(quotation marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir.
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2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere
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consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678,
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129 S.Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969.
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Bivens actions and actions under 42 U.S.C. § 1983 “are identical save for the replacement
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of a state actor under § 1983 by a federal actor under Bivens.” Van Strum v. Lawn, 940 F.2d 406,
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409 (9th Cir.1991). Under Bivens, a plaintiff may sue a federal officer in his or her individual
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capacity for damages for violating the plaintiff's constitutional rights. See Bivens, 403 U.S. at
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397. To state a claim a plaintiff must allege: (1) that a right secured by the Constitution of the
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United States was violated, and (2) that the alleged violation was committed by a federal actor.
Plaintiff’s Allegations
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B.
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Plaintiff currently is housed at the Lompoc United States Penitentiary in Lompoc,
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California. The events alleged in his third amended complaint occurred while Plaintiff was
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housed at FCI Mendota in Mendota, California. Plaintiff asserts more than twenty claims against
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sixteen different defendants based on events occurring in 2012 and 2013.
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C.
Discussion
1.
Improper Joinder of Unrelated Claims
Plaintiff initiated this action on January 17, 2014. (ECF No. 1.) On April 15, 2014, the
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Court screened Plaintiff’s original complaint, and notified him that his complaint failed to comply
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with the relevant joinder requirements. The Court directed Plaintiff to choose which claims he
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wished to pursue in this action, and was warned that if he failed to do so, and any amended
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complaint set forth unrelated claims which violated joinder rules, then the Court would dismiss
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the improperly joined claims.1 (ECF No. 16, p. 8).
Plaintiff’s first amended complaint was filed on May 5, 2014. (ECF No. 23.) On
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November 26, 2014, the Court screened the first amended complaint, and notified Plaintiff that
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his first amended complaint failed to comply with the relevant joinder requirements. The Court
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informed Plaintiff that if he elected to amend his complaint, then he must choose which claims he
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wished to pursue in this action. Plaintiff was warned that if he failed to do so, and his amended
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complaint set forth unrelated claims which violated joinder rules, then the Court would dismiss
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the claims it found to be improperly joined. (ECF No. 24, pp. 12, 13–14.)
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Plaintiff filed a second amended complaint on December 19, 2014. (ECF No. 26.) On
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June 11, 2015, the Court screened the second amended complaint, and again notified Plaintiff that
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his amended complaint failed to comply with the relevant joinder requirements. The Court
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granted Plaintiff leave to amend, but warned him that if his amended complaint failed to comply
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with the Court’s directive regarding joinder, then the Court would dismiss the improperly joined
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claims. (ECF No. 27, p. 12.)
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Plaintiff filed his third amended complaint on July 9, 2015. (ECF No. 31.) Despite
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repeated warnings, Plaintiff’s amended complaint fails to comply with the Court’s directive
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regarding joinder of claims, and he continues to bring unrelated claims against unrelated parties in
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this action. Fed. R. Civ. P. 18(a), 20(a)(2); Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011);
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George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Multiple parties may be joined as defendants
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in one action only if “any right to relief is asserted against them jointly, severally, or in the
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alternative with respect to or arising out of the same transaction, occurrence, or series of
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transactions or occurrences; and [ ] any question of law or fact common to all defendants will
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arise in the action.” Fed. R. Civ. P. 20(a)(2). Therefore, claims against different parties may be
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joined together in one complaint only if the claims have similar factual backgrounds and have
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Although served on Plaintiff, this order was later vacated because Plaintiff contemporaneously requested and was
granted leave to amend. (ECF No. 17.)
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common issues of law or fact. Coughlin v. Rogers, 130 F.3d 1348, 1350–51 (9th Cir.1997).
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Mere proximity in time of certain events are not enough to satisfy Rule 20(a)(2).
Here, Plaintiff’s first claim in this action, as discussed below, arises from alleged incidents
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in March and May 2012, in which Defendant Fajardo allegedly violated Plaintiff’s rights by
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ordering that his family phone numbers be blocked and that he be precluded from using a
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typewriter in the law library, and by falsely accusing Plaintiff of having a cell phone and ordering
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a related search of Plaintiff’s person and cell, all in retaliation for Plaintiff’s filing of a civil
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action and grievances. Plaintiff’s claims against the nineteen remaining defendants do not arise
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out of the same transactions or occurrences involving Defendant Fajardo. This includes
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Plaintiff’s claims against Defendants Khem and Duchand arising out of confiscation of his
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postage stamps and related disciplinary action, against Defendant Dern related to his grievances
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and family visits, against Defendant Gramm for false accusations and placement in the SHU, and
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against Defendant Castillo for Plaintiff’s transfer. Fed. R. Civ. P. 20(a)(2); Coughlin, 130 F.3d at
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1351; Desert Empire Bank v. Ins. Co. of N. Amer., 623 F.2d 1371, 1375 (9th Cir. 1980).
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Plaintiff also may not attempt to circumvent the joinder issue merely by alleging that
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defendants at the same institution are part of an overriding conspiracy. An actionable Bivens
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conspiracy claim requires (1) the existence of an express or implied agreement among the
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defendants to deprive the plaintiff of his constitutional rights, and (2) an actual deprivation of
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those rights resulting from that agreement. Ting v. United States, 927 F.2d 1504, 1512 (9th Cir.
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1991). Plaintiff has not set forth sufficient factual allegations to establish the existence of an
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express or implied agreement among the defendants.
Accordingly, the Court finds that this action should be limited to Plaintiff’s claim against
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Defendant Fajardo, and Plaintiff’s claims against the remaining defendants should be dismissed
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from this action without prejudice, but without leave to amend in this action. The Court will not
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expend its already taxed resources in reviewing the improperly joined claims, many of which
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have been addressed in prior screening orders. See, e.g., ECF Nos. 24, 27.
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2.
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Claim Against Defendant Fajardo
a.
Summary of Allegations
Plaintiff alleges that he has been a federal prisoner serving a life sentence for a non-
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violent offense since 1995. On February 1, 2012, he was transferred from FCI Victorville to FCI
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Mendota for having “clear conduct” and to be near his family. Soon after his arrival at FCI
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Mendota, Defendant Fajardo and prison staff became aware of a pending civil rights action filed
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by Plaintiff against Bureau of Prison staff members, and they began retaliating against him in
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different ways in violation of his First Amendment rights.
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On March 11, 2012, Defendant Fajardo directed SIS Bragan in writing to block Plaintiff’s
family phone numbers, which remain blocked.
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On May 4, 2012, the head of the Education Department, Ms. Carrasco, confronted
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Plaintiff in her office. Ms. Carrasco told Plaintiff that Defendant Fajardo directed her to preclude
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Plaintiff from using the typewriter inside the inmate Electronic Law Library in front of the
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computer monitor due to a May 1, 2012 grievance Plaintiff had filed and his civil action.
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After Plaintiff’s family obtained new phone numbers, on May 14, 2012, Defendant
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Fajardo directed SIS Agent Bragan, in a written document, to block the new phone numbers of
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Plaintiff’s family members in what appeared to be a reprisal for Plaintiff’s May 1, 2012
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grievance.
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In addition, on May 22, 2012, Defendant Fajardo directed SIS Agent Bragan, two
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lieutenants and various other correctional officers to search Plaintiff’s cell, falsely accusing him
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of having a cell phone. Plaintiff was strip searched and locked in the showers for over an hour
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while officers searched his cell. No cell phone existed.
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b.
First Amendment Retaliation Claim
Allegations of retaliation against a prisoner’s First Amendment rights to speech and to
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petition the government may support a civil rights claim. Rizzo v. Dawson, 778 F.2d 527, 532
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(9th Cir.1985); see also Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir.1995). “Within the prison
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context, a viable claim of First Amendment retaliation entails five basic elements: (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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Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005); accord Watison v. Carter, 668 F.3d
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1108, 1114-15 (9th Cir. 2012); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009).
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In order to state a claim, a plaintiff must allege specific facts demonstrating that a
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defendant took an adverse act because of plaintiff's First Amendment activity. The plaintiff's
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protected conduct must have been “the ‘substantial’ or ‘motivating’ factor behind the defendant’s
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conduct.” Brodheim, 584 F.3d at 1271, quoting Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310,
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1314 (9th Cir. 1989). The adverse action must not have reasonably advanced a legitimate
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correctional goal.
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Plaintiff has stated a cognizable retaliation claim against Defendant Fajardo arising out of
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the blocking of phone numbers, interference with typewriter access, and false accusations
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regarding possession of a cell phone and related strip and cell searches.
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III.
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Conclusion and Order
Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a
district judge to this action.
Further, IT IS HEREBY RECOMMENDED that:
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1. This action proceed on Plaintiff’s retaliation claim against Defendant Fajardo arising out
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of the blocking of phone numbers, interference with typewriter access, and the allegedly
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false accusation regarding possession of a cell phone and related body and cell searches;
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and
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2. All other claims and defendants be DISMISSED from this action without prejudice, but
without leave to amend in this action.
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These Findings and Recommendations will be submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within
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fourteen (14) days after being served with these Findings and Recommendations, the parties may
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file written objections with the Court. The document should be captioned “Objections to
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Magistrate Judge’s Findings and Recommendation.” The parties are advised that failure to file
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objections within the specified time may result in the waiver of the “right to challenge the
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magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.
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2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:
/s/ Barbara
November 30, 2017
A. McAuliffe
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UNITED STATES MAGISTRATE JUDGE
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