King v. Barrios

Filing 14

ORDER DISMISSING CASE WITH LEAVE TO AMEND, signed by Magistrate Judge Barbara A. McAuliffe on 07/5/17. Second Amended Complaint due (30-Day Deadline) (Attachments: # 1 Amended Complaint Form)(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARIO KING,

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Plaintiff,

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v.

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J. BARRIOS,

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Defendant.

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1:16-cv-01695-DAD-BAM (PC)
SCREENING ORDER DISMISSING FIRST
AMENDED COMPLAINT WITH LEAVE
TO AMEND
(ECF No. 13)
THIRTY (30) DAY DEADLINE

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Plaintiff Mario King (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On May 9, 2017, the Court

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dismissed Plaintiff’s complaint with leave to amend. (ECF No. 10.) Plaintiff’s first amended

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complaint, filed on June 26, 2017, is currently before the Court for screening. (ECF No. 13.)

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I.

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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II.

Plaintiff’s Allegations

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Plaintiff is currently housed at the California Substance Abuse Treatment Facility

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(“CSATF”) in Corcoran, California, where the events in the complaint are alleged to have

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occurred. Plaintiff names Sergeant J. Barrios, C. Ramos and Warden S. Sherman as defendants

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in this action.

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By way of background, Plaintiff alleges that he was housed at CSATF on Facility A and

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served as a caregiver for ADA inmates. In the course of this service, Plaintiff filed a case, No.

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1:16-cv-00433-LJO-SAB (PC), against W.S. Wadkins. Plaintiff alleges that W.S. Wadkins used

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Defendant Barrios to retaliate against Plaintiff for the litigation.

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In his first claim, Plaintiff alleges he tried to appeal the adverse actions of Defendant

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Barrios regarding “false allegations that ‘SOME ALLEGATION’ . . . was made towards, against,
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stared, argued, and /or had words with correctional officer Sgt. Barrios.” (ECF No. 13, p. 2.)

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Correctional Officer Wickert communicated to Plaintiff that he stared or made a statement to

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Defendant Barrios. Plaintiff asserts he has two witnesses that can validate he never saw or spoke

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with Defendant Barrios on June 23, 2016. However, Defendant Barrios moved Plaintiff to

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another building, but this does not lessen Plaintiff’s visibility nor does it prevent Plaintiff and

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Defendant Barrios from seeing each other. Plaintiff contends that he provided witnesses to

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Correctional Officer Wickert to dispute the false allegations, but Correctional Officer Wickert

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“advised Plaintiff that correctional officer Sgt. J. Barrios stated, “Failure to move will result in a

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CDC 115 RULES VIOLATION REPORT.” (Id.) Plaintiff appears to allege that the transfer to

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Housing Unit 3 was an adverse transfer or punishment without procedural due process. Plaintiff

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contends that Defendant Barrios’ actions are retaliatory acts for the purpose of harassment,

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intimidation, oppression, and exploitation of an inmate under Penal Code section 147.

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In his second claim, Plaintiff alleges he tried to file a citizen complaint against Defendant

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Barrios for his acts on June 23, 2016, by way of a 602. Defendant Ramos filed Plaintiff’s appeal,

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but never returned it or answered it. Plaintiff contends that because of Defendant Ramos’ failure

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to be properly trained, she used underground regulations. Plaintiff alleges a “Greenwall” in

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which CDCR staff act on “behalf of one another to protect and/or discourage its wards from

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pursuing legal actions against correctional staff.” (ECF No. 13, p. 4.) Plaintiff further alleges

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that Defendant Sherman allows his staff to use underground regulations, and the defendants have

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conspired together to intentionally harass and intimidate Plaintiff, who filed a grievance as part

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of his First Amendment rights.

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In his third claim, Plaintiff contends Defendant Sherman has failed to train his employees

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in the execution of their duties and allowed the “Green Wall” to conspire together to violate

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Plaintiff’s constitutional rights. Plaintiff also contends Defendant Sherman allows the filing of

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false documents within his institution. Plaintiff alleges he has tried to utilize the appeals process

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to gain relief, but he cannot get an answer to his appeal or receive it back.

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Plaintiff asserts that defendants have violated his Due Process and Equal Protection rights
and discriminated against him. Plaintiff seeks compensatory and punitive damages.
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III.

Deficiencies in Complaint
A. Federal Rule of Civil Procedure 8

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Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and

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plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a).

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Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause

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of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678

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(citation omitted). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a

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claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S.

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at 570, 127 S.Ct. at 1974). While factual allegations are accepted as true, legal conclusions are

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not. Id.; see also Twombly, 550 U.S. at 556–557.

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Although Plaintiff’s complaint is short, it is not a plain statement of his claims showing

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that he is entitled to relief under section 1983. Plaintiff’s amended complaint is disjointed and

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difficult to understand. Plaintiff also omits necessary facts to enable the Court to determine

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whether Plaintiff states a cognizable claim against any of the named defendants. Plaintiff will

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be given an opportunity to amend his complaint to cure this deficiency. In any amended

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complaint, Plaintiff should describe what happened, when it happened and who was involved.

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Conclusions alone are not sufficient to state a claim to relief that is plausible on its face.

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B. First Amendment - Retaliation
Although not entirely clear from his amended complaint, it appears Plaintiff is attempting
to reassert a retaliation claim against Defendant Barrios.

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Allegations of retaliation against a prisoner’s First Amendment rights to speech or to

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petition the government may support a section 1983 claim. Rizzo v. Dawson, 778 F.2d 527, 532

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(9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v.

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Rowland, 65 F.3d 802, 807 (9th Cir. 1995). “Within the prison context, a viable claim of First

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Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some

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adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that

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such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did

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not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567–

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68 (9th Cir. 2005).

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Plaintiff’s claim for retaliation is based on Defendant Barrios’ decision to transfer

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Plaintiff following asserted misconduct by Plaintiff. Although Plaintiff alleges he was engaged

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in constitutionally protected conduct by pursuing a lawsuit against W.S. Wadkins, it is unclear

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how “W.S. Wadkins by proxy did use Sergeant J. Barrios to retaliate against the Plaintiff for the

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litigation . . . .” (ECF No. 13, pp. 2-3.) Plaintiff’s conclusory allegation is not sufficient to

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demonstrate that Defendant Barrios initiated Plaintiff’s transfer because of any constitutionally

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protected conduct. Plaintiff also fails to adequately allege that the transfer did not reasonably

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advance a legitimate correctional goal. Plaintiff will be given leave to cure the deficiencies in

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this claim to the extent he is able to do so in good faith.

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C. Due Process - Grievance Procedure

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Plaintiff appears to be complaining about the processing of his inmate appeals by

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Defendant Ramos. However, Plaintiff cannot pursue claims against prison officials based on the

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processing and review of his inmate appeals.

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The existence of an inmate appeals process does not create a protected liberty interest

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upon which Plaintiff may base a claim that he was denied a particular result or that the appeals

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process was deficient. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams,

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855 F.2d 639, 640 (9th Cir. 1988). To state a claim under section 1983, Plaintiff must

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demonstrate personal involvement in the underlying violation of his rights, Iqbal, 556 U.S. at

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677; Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002), and liability may not be based merely

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on Plaintiff's dissatisfaction with the administrative process or a decision on an appeal, Ramirez,

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334 F.3d at 860; Mann, 855 F.2d at 640.

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D. Equal Protection

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The Equal Protection Clause requires that persons who are similarly situated be treated

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alike. City of Cleburne, Tex. v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). An equal

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protection claim may be established by showing that the defendant intentionally discriminated

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against the plaintiff based on the plaintiff's membership in a protected class, Serrano v. Francis,
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345 F.3d 1071, 1082 (9th Cir. 2003); Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir.

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2001), or that similarly situated individuals were intentionally treated differently without a

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rational relationship to a legitimate state purpose, Vill. of Willowbrook v. Olech, 528 U.S. 562,

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564 (2000); see also Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008); N.

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Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008). Plaintiff provides no facts to

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support his claim that he was discriminated against on the basis of his membership in a protected

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class or that similarly situated individuals were treated differently.

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IV.

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For the above reasons, Plaintiff’s first amended complaint fails to comply with Federal

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Rule of Civil Procedure 8 and fails to state a claim upon which relief may be granted under

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section 1983. As Plaintiff is proceeding in pro se, the Court will provide Plaintiff with a final

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opportunity to amend his complaint to cure the identified deficiencies to the extent he is able to

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do so in good faith. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

Conclusion and Order

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Plaintiff is cautioned that he may not change the nature of this suit by adding new,

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unrelated claims in his third amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir.

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2007) (no “buckshot” complaints).

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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what

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each named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal

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rights. Iqbal, 556 U.S. at 676. Plaintiff also must set forth “sufficient factual matter . . . to ‘state a

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claim that is plausible on its face.’” Id. at 678 (quoting Twombly, 550 U.S. at 555).

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Finally, Plaintiff is advised that an amended complaint supersedes the original complaint.

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Lacey v. Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012). Therefore, Plaintiff’s amended

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complaint must be “complete in itself without reference to the prior or superseded pleading.”

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Local Rule 220.

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Based on the foregoing, it is HEREBY ORDERED that:

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The Clerk’s Office shall send Plaintiff a complaint form;

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Plaintiff’s first amended complaint, filed June 26, 2016 (ECF No. 13), is

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dismissed for failure to comply with Federal Rule of Civil Procedure 8 and failure to state a

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claim;

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3.

Within thirty (30) days from the date of service of this order, Plaintiff shall file a

second amended complaint or a notice of voluntary dismissal; and
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If Plaintiff fails to file a second amended complaint in compliance with this

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order, the Court will dismiss this action, with prejudice, for failure to state a claim and to

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obey a court order.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

July 5, 2017

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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