Winston v. Martinez

Filing 10

ORDER DISMISSING 1 Complaint WITH LEAVE TO AMEND; Thirty (30) Day Deadline signed by Magistrate Judge Michael J. Seng on 8/22/2017. (Attachments: # 1 Amended Complaint Form)(Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MYOHO WINSTON, 12 Plaintiff, 13 ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND v. 14 CASE NO. 1:17-cv-00774-MJS (PC) I. MARTINEZ, (ECF No. 1) THIRTY (30) DAY DEADLINE 15 Defendant. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil 18 rights action filed pursuant to 42 U.S.C. § 1983 on June 6, 2017. Plaintiff has consented 19 to Magistrate Judge jurisdiction in this case. (ECF No. 9). No other parties have 20 appeared. 21 I. Screening Requirement 22 The Court is required to screen complaints brought by prisoners seeking relief 23 against a governmental entity or an officer or employee of a governmental entity. 28 24 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner 25 has raised claims that are legally “frivolous or malicious,” that fail to state a claim upon 26 which relief may be granted, or that seek monetary relief from a defendant who is 27 immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee, 28 or any portion thereof, that may have been paid, the court shall dismiss the case at any 1 time if the court determines that . . . the action or appeal . . . fails to state a claim upon 2 which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 3 II. Pleading Standard 4 A complaint must contain “a short and plain statement of the claim showing that 5 the pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations 6 are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported 7 by mere conclusory statements, do not suffice,” Ashcroft v. Iqbal, 556 U.S. 662, 678 8 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and courts “are 9 not required to indulge unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 10 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). While factual 11 allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678. 12 Under section 1983, Plaintiff must demonstrate that each defendant personally 13 participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 14 2002). This requires the presentation of factual allegations sufficient to state a plausible 15 claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 16 969 (9th Cir. 2009). Prisoners proceeding pro se in civil rights actions are entitled to 17 have their pleadings liberally construed and to have any doubt resolved in their favor, 18 Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), but nevertheless, 19 the mere possibility of misconduct falls short of meeting the plausibility standard, Iqbal, 20 556 U.S. at 678; Moss, 572 F.3d at 969. 21 III. Plaintiff’s Allegations 22 Plaintiff is currently incarcerated at the California Correctional Institution in 23 Tehachapi, California. However he complains of acts that occurred at the California 24 State Prison, Corcoran in Corcoran, California (“CSP—COR”). Plaintiff brings this action 25 against Defendant I. Martinez, a correctional officer at CSP—COR. 26 Plaintiff’s allegations can be summarized essentially as follows: On May 18, 2016, 27 he filed a grievance about a television having been confiscated from his cell on May 3, 28 2016. During a July 11, 2016, hearing on the grievance Defendant retaliated against 2 1 Plaintiff by filing a false Rules Violation Report (“RVR”) accusing Plaintiff of having stolen 2 the television from another inmate. Defendant did so to prevent Plaintiff from filing a 3 second grievance. Plaintiff’s fear of Defendant kept him from filing a second grievance. 4 Plaintiff alleges this retaliation violated his rights under the First Amendment. 5 IV. Discussion 6 Section 1983 provides for a cause of action against prison officials who retaliate 7 against inmates for exercising their constitutionally protected rights. Pratt v. Rowland, 65 8 F.3d 802, 806 n. 4 (9th Cir. 1995) (“[R]etaliatory actions by prison officials are cognizable 9 under § 1983.”) Within the prison context, a viable claim of retaliation entails five basic 10 elements: “(1) An assertion that a state actor took some adverse action against an inmate 11 (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the 12 inmate’s exercise of his constitutional rights, and (5) the action did not reasonably 13 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th 14 Cir. 2005); accord Watison v. Carter, 668 F.3d at 1114-15; Silva v. Di Vittorio, 658 F.3d 15 1090, 1104 (9th Cir. 2011); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). 16 The second element focuses on causation and motive. See Brodheim, 584 F.3d 17 at 1271. A plaintiff must show that his protected conduct was a “‘substantial’ or 18 ‘motivating’ factor behind the defendant’s conduct.” Id. (quoting Sorrano’s Gasco, Inc. v. 19 Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). Although it can be difficult to establish the 20 motive or intent of the defendant, a plaintiff may rely on circumstantial evidence. Bruce v. 21 Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003) (finding that a prisoner established a triable 22 issue of fact regarding prison officials’ retaliatory motives by raising issues of suspect 23 timing, evidence, and statements); Hines v. Gomez, 108 F.3d 265, 267-68 (9th Cir. 24 1997); Pratt, 65 F.3d at 808 (“timing can properly be considered as circumstantial 25 evidence of retaliatory intent”). 26 In terms of the third prerequisite, filing a complaint or grievance is constitutionally 27 protected. Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989). 28 With respect to the fourth prong, the correct inquiry is to determine whether an 3 1 official’s acts “could chill a person of ordinary firmness from continuing to engage in the 2 protected activity[].” Pinard v. Clatskanie School Dist. 6J, 467 F.3d 755, 770 (9th Cir. 3 2006); see also White v. Lee, 227 F.3d 1214, 1228 (9th Cir. 2000). 4 With respect to the fifth prong, a prisoner must affirmatively allege that “‘the prison 5 authorities’ retaliatory action did not advance legitimate goals of the correctional 6 institution or was not tailored narrowly enough to achieve such goals.” Rizzo v. Dawson, 7 778 F.2d at 532. 8 Here, the connection between Plaintiff’s grievance and Defendant’s actions is not 9 clear. The Court cannot determine if Plaintiff feels Defendant issued a false RVR in 10 retaliation for the May 18, 2016 grievance or to dissuade Plaintiff from filing a second 11 grievance. The distinction is significant because Plaintiff must allege how Defendant 12 knew of whichever event is at the core of the retaliation and how Plaintiff knows or 13 believes Defendant’s actions were in retaliation for either or both events. Plaintiff will be 14 given leave to amend. If he chooses to do so, he must demonstrate a causal link 15 between his protected activity and Defendant’s retaliation for it. 16 V. Conclusion 17 Plaintiff’s complaint will be dismissed. The Court will provide Plaintiff with the 18 opportunity to file an amended complaint, if he believes, in good faith, he can cure the 19 identified deficiencies. Akhtar v. Mesa, 698 F.3d 1202, 1212-13 (9th Cir. 2012); Lopez, 20 203 F.3d at 1130-31; Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). If Plaintiff 21 amends, he may not change the nature of this suit by adding new, unrelated claims in his 22 amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 23 If Plaintiff files an amended complaint, it should be brief, Fed. R. Civ. P. 8(a), but 24 under section 1983, it must state what each named defendant did that led to the 25 deprivation of Plaintiff’s constitutional rights and liability may not be imposed on 26 supervisory personnel under the theory of respondeat superior, Iqbal, 556 U.S. at 676-77; 27 Starr, 652 F.3d at 1205-07. Although accepted as true, the “[f]actual allegations must be 28 [sufficient] to raise a right to relief above the speculative level. . . .” Twombly, 550 U.S. at 4 1 555 (citations omitted). 2 Finally, an amended complaint supersedes the original complaint, Lacey v. 3 Maricopa County, 693 F.3d 896, 907 n.1 (9th Cir. 2012) (en banc), and it must be 4 “complete in itself without reference to the prior or superseded pleading,” Local Rule 220. 5 Accordingly, it is HEREBY ORDERED that: 6 1. Plaintiff’s complaint (ECF No. 1) is DISMISSED with leave to amend; 7 3. The Clerk’s Office shall send Plaintiff a blank complaint form along with a 8 9 copy of the complaint filed June 6, 2017; 4. Within thirty (30) days from the date of service of this order, Plaintiff must 10 either file an amended complaint curing the deficiencies identified by the 11 Court in this order or a notice of voluntary dismissal; 12 5. 13 If Plaintiff fails to comply with this order, this action will be dismissed, without prejudice, for failure to prosecute and failure to obey a court order. 14 15 16 17 IT IS SO ORDERED. Dated: August 22, 2017 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 5

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