Pina v. Kernan et al

Filing 28

ORDER GRANTING IN PART AND DENYING IN PART 26 FINDINGS AND RECOMMENDATIONS;This matter is referred back to the assigned magistrate judge for further proceedings consistent with this order, signed by District Judge Dale A. Drozd on 6/7/19. Defendant: Slater terminated.(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PABLO P. PINA,

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No. 1:17-cv-01681-DAD-SAB (PC)
Plaintiff,

v.

ORDER ADOPTING IN PART FINDINGS
AND RECOMMENDATIONS

SCOTT KERNAN, et al.,
(Doc. No. 26)

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Defendants.

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Plaintiff Pablo P. Pina is a state prisoner proceeding pro se and in forma pauperis in this

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civil rights action brought pursuant to 42 U.S.C. § 1983. The matter was referred to a United

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States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. The assigned

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magistrate judge screened plaintiff’s second amended complaint (“SAC”) pursuant to 28 U.S.C

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§ 1915A.

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On November 7, 2018, the magistrate judge issued findings and recommendations

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recommending that: (1) this action proceed on some of plaintiff’s retaliation and conspiracy to

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retaliate claims against defendants Urban, Peterson, Garcia, Leshniak, Davey, and Hoggard; and

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(2) plaintiff’s Eighth Amendment claim, plaintiff’s claims alleging he was transferred to a more

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restrictive facility in retaliation for filing complaints, and all other defendants be dismissed from

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this action for failure to state a cognizable claim for relief. (Doc. No. 26.) Although plaintiff did

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not specifically assert a violation of his due process rights under the Fourteenth Amendment, the

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findings and recommendations found that the SAC states cognizable due process claims against
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defendants Urban, Peterson, Garcia, Leshniak, Davey, and Hoggard for prolonging plaintiff’s stay

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in segregation. (Id. at 8–9.) The findings and recommendations were served on plaintiff and

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contained notice that any objections thereto were to be filed within fourteen (14) days after

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service. (Id. at 14.) Plaintiff timely delivered objections to prison officials for mailing on

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November 18, 2018, which were received by the court on November 26, 2018. (Doc. No. 27.)

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

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court has conducted a de novo review of this case. Having carefully reviewed the entire file,

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including plaintiff’s objections, the undersigned concludes that the findings and recommendations

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are supported in part, as explained below.

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The findings and recommendations concluded that the SAC failed to allege a cognizable

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claim for relief against defendants Kernan or Hubbard—both of whom held supervisory positions

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within the California Department of Corrections and Rehabilitation at the relevant time—because

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the allegations of plaintiff’s SAC as to them are conclusory in nature and premised on a theory of

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respondeat superior. (Doc. No. 26 at 10.) Plaintiff objects, arguing that his claims against

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defendants Kernan and Hubbard are not premised on a theory of respondeat superior liability.

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(Doc. No. 27 at 2–3.)

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In his SAC, plaintiff alleges the following. In or around July 2016 and the months that

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followed, plaintiff wrote letters to defendants Kernan and Hubbard, complaining that his inmate

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appeals and grievances were not being processed and complaining about the conditions in the

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segregated housing unit. (Doc. No. 23 at 15–17.) Plaintiff also informed defendants Kernan and

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Hubbard that he was going to file a civil suit due to his prolonged stay in segregation. (Id.) In

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October 2016, defendant Leshniak told plaintiff that his prolonged stay in segregation was

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approved by defendants Kernan and Hubbard, and a different, unnamed correctional officer told

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plaintiff that “filing complaints and grievances . . . will always get [plaintiff] into deep shit” and

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that “nothing gets done here unless [it is] okayed by [S]acramento.” (Id. at 16–17.) In or around

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April 2018, a month after plaintiff was approved for transfer to Mule Creek State Prison, he was

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instead transferred to Kern Valley State Prison, where he was placed in an area that houses

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inmates with disciplinary issues. (Id. at 19.) When plaintiff inquired about why only he was
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being transferred to Kern Valley unlike other inmates who were also awaiting transfer to Mule

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Creek, a prison counselor told plaintiff that only defendants Kernan or Hubbard could override

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the decision to transfer plaintiff to Mule Creek. (Id.) A few days later, plaintiff’s cellmate asked

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a different prison counselor why he too was not being transferred to Kern Valley and that

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counselor told the cellmate “that it was coming from Sacramento, Kernan and Hubbard, because

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they said [plaintiff] was a litigator and filed too many complaints.” (Id.)

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These allegations, construed under the liberal pleading standard this court must apply to

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pro se litigants, see Erickson v. Pardus, 551 U.S. 89, 94 (2007), are sufficient to allege cognizable

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claims for retaliation and conspiracy to retaliate against defendants Kernan and Hubbard. The

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SAC alleges that defendants Kernan and Hubbard were personally involved in or approved of the

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decisions to keep plaintiff in the segregated housing unit and to transfer plaintiff to Kern Valley

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after he had already been approved for transfer to a less restrictive facility. See Taylor v. List, 880

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F.2d 1040, 1045 (9th Cir. 1989) (“A supervisor is only liable for constitutional violations of his

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subordinates if the supervisor participated in or directed the violations, or knew of the violations

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and failed to act to prevent them.”); Ray v. Jefferson, No. 16-cv-02652-YGR (PR), 2017 WL

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7726700, at *2 (N.D. Cal. Apr. 27, 2017) (dismissing supervisory liability claim where plaintiff

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failed to allege that defendants “participated in or directed any violations”), aff’d, 707 Fed. App’x

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885 (9th Cir. 2017), cert. denied, ___U.S.___, 139 S. Ct. 224 (2018).1

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The findings and recommendations also found that plaintiff’s SAC failed to adequately

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allege retaliation or conspiracy to retaliate claims based on plaintiff’s transfer to Kern Valley

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because plaintiff did not allege that his transfer failed to serve a legitimate penological interest.

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(Doc. No. 26 at 11.) However, these allegations “implicitly plead” that prison officials did not

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transfer plaintiff to Kern Valley to advance a legitimate penological interest. Watison v. Carter,

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668 F.3d 1108, 1116 (9th Cir. 2012); see also Lipsey v. Goree, No. 1:17-cv-00997-DAD-JLT

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(PC), 2018 WL 4638309, at *2 (E.D. Cal. Sept. 26, 2018) (“The Ninth Circuit has found this

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element satisfied at the pleading stage when a plaintiff successfully pleads the conduct at issue is

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Of course, the court states no opinion as to whether any evidence will support plaintiff’s claim
in this regard or the allegations upon which it is based.
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retaliatory, presumably because retaliatory conduct meant to inhibit First Amendment expression

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can never be a legitimate penological goal.”), reconsideration denied, No. 1:17-cv-00997-DAD-

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JLT (PC), 2018 WL 5099683 (E.D. Cal. Oct. 18, 2018). First, the SAC alleges that, of the

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prisoners who were approved for transfer to Mule Creek, only plaintiff was instead transferred to

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Kern Valley. Second, the SAC alleges that a prison counselor informed plaintiff’s cellmate that

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plaintiff was being transferred to Kern Valley because he was a “litigator” who filed “too many

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complaints.” These allegations plausibly allege that plaintiff’s transfer to Kern Valley did not

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reasonably advance a legitimate correctional goal. See, e.g., Solomon v. Felker, No. 2:08-cv-

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02544 JFM P, 2013 WL 5375538, at *6 (E.D. Cal. Sept. 24, 2013) (dismissing retaliation claim

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where plaintiff “fail[ed] to allege any facts that suggest that defendants’ actions failed to advance

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a legitimate correctional goal”). The court therefore concludes that the SAC adequately states a

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claim for conspiracy to retaliate based on plaintiff’s transfer to Kern Valley State Prison. 2

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The remaining findings in the pending findings and recommendations are supported by

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the record and proper analysis. Moreover, plaintiff does not object to the remaining findings and

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recommendations and the court therefore adopts them in full.

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Accordingly,

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1. The findings and recommendations issued on November 7, 2018 (Doc. No. 26) are

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adopted in part;

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2. Plaintiff’s SAC states cognizable claims for retaliation and conspiracy to retaliate
based on plaintiff’s transfer to Kern Valley State Prison;

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3. Plaintiff may proceed on his retaliation and conspiracy to retaliate claims against

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defendants Urban, Peterson, Garcia, Leshniak, Davey, Hoggard, Kernan, and

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Hubbard;

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4. Plaintiff may proceed on his Fourteenth Amendment due process claim against

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defendants Urban, Peterson, Garcia, Leshniak, Davey, Hoggard, Kernan, and

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Hubbard;

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See fn. 1, above.
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cognizable claim against them;
6. Plaintiff’s cause of action for cruel and unusual punishment under the Eighth

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Amendment is dismissed for failure to state a claim; and

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7. This matter is referred back to the assigned magistrate judge for further

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Defendants Slater and John Doe are dismissed for plaintiff’s failure to state a

proceedings consistent with this order.
IT IS SO ORDERED.
Dated:

February 7, 2019
UNITED STATES DISTRICT JUDGE

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