Martin v. Desha

Filing 21

ORDER Regarding Findings and Recommendations and Closing Case signed by District Judge Anthony W. Ishii on 04/13/2017. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LANELL MARTIN,

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Plaintiff

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CASE NO. 1:16-CV-1353 AWI MJS (PC)
ORDER REGARDING FINDINGS AND
RECOMMENDATION AND CLOSING
CASE

v.
D. DESHA,
Defendant

(Doc. Nos. 13, 14)

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Plaintiff Lanell Martin is a state prisoner proceeding pro se in this 42 U.S.C. § 1983 civil

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rights action. The action was removed from the Madera County Superior Court on September 12,

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2016 and was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B)

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and Local Rule 302 of the United States District Court for the Eastern District of California.

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On January 23, 2017, the Magistrate Judge screened Plaintiff’s First Amended Complaint

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(“FAC”) and found that it stated a cognizable First Amendment retaliation claim for damages

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against Defendant Desha in her individual capacity, but no other cognizable claims. See Doc. No.

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14. The Magistrate Judge issued a Findings and Recommendations (“F&R”) for Plaintiff to

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proceed on the cognizable retaliation claim and for the dismissal of all other claims with prejudice.

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Id. No objections were filed.

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In accordance with the provisions of 28 U.S.C. § 636(b), the Court has reviewed the

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matter. Having carefully reviewed the entire file, the Court generally agrees with the F&R.

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However, the Court respectfully disagrees with the F&R’s conclusion regarding Plaintiff’s First

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Amendment retaliation claim.

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The F&R found inter alia that the FAC had adequately alleged each of the elements of a

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First Amendment retaliation claim. Plaintiff alleged that Defendant D. Desha issued a false 128B

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Chrono out of anger and in retaliation for Plaintiff filing grievances against Desha. Plaintiff

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alleged that the chrono could be used to deny him early parole release.

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The 128B Chrono in this case is attached to the Complaint and was written by Desha. See

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FAC Ex. A. The 128B Chrono purports to explain Plaintiff’s job performance following failures

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to obtain pay increases, discussions between Plaintiff and Desha, and grievances filed by Plaintiff

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against Desha. See id. The gist of the Chrono is that Plaintiff was an excellent worker, but his

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attitude deteriorated when he did not obtain the pay increases, some of which were due to “system

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glitches.” See id. The Chrono discusses grievances that Plaintiff filed against Desha. The Chrono

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claims that Plaintiff has an anger problem and that he will file grievances to get what he wants, no

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matter who the grievances might hurt, and that Plaintiff will likely file another grievance

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concerning Desha’s decision to deny Plaintiff another pay increase. See id.

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In order to avoid a dismissal for failure to state a claim, “a complaint must contain

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sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial plausibility when the plaintiff

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pleads factual content that allows the court draw the reasonable inference that the defendant is

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liable for the misconduct alleged.” Id. A prisoner bringing a First Amendment retaliation claim

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must show five elements: (1) “a state actor took some adverse action . . . (2) because of (3) [the]

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prisoner's protected conduct, . . . that such action (4) chilled [his] exercise of his First Amendment

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rights, and (5) the action did not reasonably advance a legitimate correctional goal.” Shepard v.

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Quillen, 840 F.3d 686, 688 (9th Cir. 2016). With respect to the fourth element, the “adverse

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action” must be of such a quality that it would chill or silence a person of ordinary firmness from

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future First Amendment activities. Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009).

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A 128B chrono by itself is generally not an adverse act for purposes of retaliation, even if

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the chrono contains false information. See Masterson v. Killen, 2017 U.S. Dist. 32433, * 34 (E.D.

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Cal. Mar. 6, 2017); Garcia v. Blahnik, 2017 U.S. Dist. LEXIS 47136, *36 (S.D. Cal. Feb. 3,

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2017); Jenkins v. Caplan, 2010 U.S. Dist. LEXIS 97767, *9 (N.D. Cal. Sep. 16, 2010); Williams
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v. Woodford, 2009 U.S. Dist. LEXIS 105932, *10 (E.D. Cal. 2009). As described above, the

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128B Chrono in this case is not so extraordinary that it falls outside the general rule. The 128B

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Chrono contains some obvious hyperbole. The 128B Chrono reads as if Desha is upset because

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Plaintiff filed formal complaints or grievances against her, and that Desha is trying to explain

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ahead of time why an additional grievance could be forthcoming. There are no allegations that

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Plaintiff was disciplined as result of the 128B Chrono, or that any kind of negative result has

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occurred because of the 128B Chrono.

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The FAC does allege that the 128B Chrono could be used to deny Plaintiff parole.

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However, there are numerous considerations that go into a parole decision; an informational 128B

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Chrono that had no discernable effects would at best be only one of many pieces of information.

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Cf. Nettles v. Grounds, 830 F.3d 922, 934-35 (9th Cir. 2016) (finding that a rules violation was

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one of many pieces of information that the Board of Paroles can review and that the presence or

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absence of a disciplinary infraction compels neither the granting nor the denial of parole); Hall v.

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Tehrani, 2013 U.S. Dist. LEXIS 46026, *14-15 (N.D. Cal. Mar. 29, 2013) (holding that a

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psychological evaluation that allegedly contained erroneous facts was not an “adverse action”

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because the Board of Paroles is required to consider many reliable and relevant information and

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the evaluation was not clearly adverse). Plaintiff’s conclusory statement that the 128B Chrono

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could be used to deny parole sometime in the future is simply too speculative.1

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Given the general rule regarding 128B Chronos, as well as the content of this particular

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128B Chrono, the FAC does not plausibly allege that Plaintiff suffered an adverse act or that a

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prisoner of ordinary firmness would be “chilled” from the 128B Chrono. See Iqbal, 556 U.S. at

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678; Shepard, 840 F.3d at 688; Brodheim, 584 F.3d at 1271. That is, the FAC does not state a

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plausible claim for First Amendment retaliation.

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The F&R concluded that a plausible claim for First Amendment retaliation had been

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stated. Because the Court reaches a contrary conclusion, it will respectfully decline to adopt this

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aspect of the F&R. The Court will, however, adopt the remainder of the F&R. Additionally, this

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Further, if Plaintiff’s allegation regarding parole was an exception to the general rule that a 128B Chrono is not an
“adverse act,” then it seems that the exception would swallow the rule. All prisoners who are eligible for parole
would have an adverse act whenever a 128B Chrono was filed.

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is the first time that this pleading defect has been identified. Out of an abundance of caution,

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Plaintiff will be given the opportunity to file an amended complaint that cures the pleading

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deficiencies, but only with respect to his First Amendment retaliation claim.

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ORDER

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Accordingly, IT IS HEREBY ORDERED that:
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The January 23, 2017 Findings and Recommendation is ADOPTED in part, consistent
with the above analysis;

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2.

Plaintiff’s First Amended Complaint is DISMISSED with partial leave to amend;

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Within twenty-one (21) days of service of this order, Plaintiff may file a second amended
complaint with respect to a First Amendment retaliation claim;2 and

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4.

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withdrawn and this case will be closed without further notice.
IT IS SO ORDERED.

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If Plaintiff fails to file a timely second amended complaint, leave to amend will be

Dated: April 13, 2017
SENIOR DISTRICT JUDGE

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To clarify, leave to amend is granted only with respect to Plaintiff’s First Amendment retaliation claim.

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