Glosson v. Virga et al
Filing
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ORDER signed by Magistrate Judge Craig M. Kellison on 8/10/11 ORDERING plaintiff to SHOW CAUSE in writing, within 30 days of the date of this order, why this action should not be dismissed for failure to state a claim.(Dillon, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JOSEPH LEE GLOSSON,
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No. CIV S-11-1743-CMK-P
Plaintiff,
vs.
ORDER
TIM V. VIRGA, et al.,
Defendants.
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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
42 U.S.C. § 1983. Pending before the court is plaintiff’s complaint (Doc. 1).
The court is required to screen complaints brought by prisoners seeking relief
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against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.
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§ 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or
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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief
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from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover,
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the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain
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statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
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This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne,
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84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied
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if the complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon
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which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must
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allege with at least some degree of particularity overt acts by specific defendants which support
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the claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is
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impossible for the court to conduct the screening required by law when the allegations are vague
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and conclusory.
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I. PLAINTIFF’S ALLEGATIONS
Plaintiff names the following as defendants: Virga, Baughman, Shannon, Clark,
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Engellenner, Stinson, Leatham, Polich, Brannen, Long, Wright, and Foston. Plaintiff alleges
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that, on April 10, 2010, he was instructed by defendant Stinson to pack up his belongings
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because he was going to be moved to a different housing unit. Plaintiff told Stinson that he was
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“not interested in moving” because his “standing” in his current unit was “exemplary.” Stinson
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then told plaintiff that, if he didn’t agree to the move, he would be fired from his current job
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assignment. Stinson denied plaintiff’s request to speak with the watch sergeant about the issue.
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Plaintiff adds that he later learned that the move had been approved by defendant Engellenner.
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Next, plaintiff claims that he had been “medically assigned” a lower bunk and that
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upon arrival at the new housing unit, plaintiff produced his lower bunk “chrono” to defendants
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Leatham and Polich. It appears that, notwithstanding his “chrono,” plaintiff was assigned to an
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upper bunk in his new cell. Plaintiff claims that, on April 11, 2010, after sleeping the night in the
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upper bunk, he was climbing down and “lost his balance and landed on the cell floor, and was
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rendered unconscious.” Plaintiff’s cell mate then yelled “man down,” whereupon plaintiff was
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removed from his cell by stretcher and taken to the medical clinic for evaluation where he was
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examined by defendant Long. According to plaintiff, defendant Long diagnosed plaintiff as
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suffering from a contusion to the back of the head “and injuries that would require further
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examination.” Nonetheless, plaintiff claims that defendant Long was deliberately indifferent and
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that he was sent back to his cell before any further evaluation was performed. Plaintiff states that
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he was later moved to a lower bunk.
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Plaintiff claims that these allegations give rise to § 1983 claims based on
deliberate indifference to his medical needs, retaliation, and denial of due process.
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II. DISCUSSION
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The court finds that plaintiff’s complaint suffers from a number of defects which
are discussed below.
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A.
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Causal Link
Of the named defendants, there are no specific allegations as to defendants Virga
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or Shannon. To state a claim under 42 U.S.C. § 1983, the plaintiff must allege an actual
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connection or link between the actions of the named defendants and the alleged deprivations.
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See Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362
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(1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the
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meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts, or
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omits to perform an act which he is legally required to do that causes the deprivation of which
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complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and
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conclusory allegations concerning the involvement of official personnel in civil rights violations
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are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Rather, the
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plaintiff must set forth specific facts as to each individual defendant’s causal role in the alleged
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constitutional deprivation. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988).
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B.
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Supervisory Defendants
Plaintiff names Virga and Baughman, who as the prison warden and associate
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warden, respectively, are supervisory defendants. Supervisory personnel are generally not liable
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under § 1983 for the actions of their employees. See Taylor v. List, 880 F.2d 1040, 1045 (9th
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Cir. 1989) (holding that there is no respondeat superior liability under § 1983). A supervisor is
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only liable for the constitutional violations of subordinates if the supervisor participated in or
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directed the violations. See id. The Supreme Court has rejected the notion that a supervisory
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defendant can be liable based on knowledge and acquiescence in a subordinate’s unconstitutional
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conduct because government officials, regardless of their title, can only be held liable under
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§ 1983 for his or her own conduct and not the conduct of others. See Ashcroft v. Iqbal, 129 S.Ct.
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1937, 1949 (2009). When a defendant holds a supervisory position, the causal link between such
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defendant and the claimed constitutional violation must be specifically alleged. See Fayle v.
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Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir.
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1978). Vague and conclusory allegations concerning the involvement of supervisory personnel
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in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th
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Cir. 1982). “[A] plaintiff must plead that each Government-official defendant, through the
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official’s own individual actions, has violated the constitution.” Iqbal, 129 S.Ct. at 1948.
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Here, plaintiff does not allege facts showing any personal involvement on the part
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of Virga. As to Baughman, the only personal action alleged is that he addressed plaintiff’s
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grievance at the second level of review. For the reasons discussed below, this is insufficient to
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maintain a claim under § 1983. The supervisory defendants should be dismissed.
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C.
Prison Grievance Process
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It appears that plaintiff has named a number of individuals as defendants based
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solely on their processing of plaintiff’s inmate grievances. Prisoners have no stand-alone due
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process rights related to the administrative grievance process. See Mann v. Adams, 855 F.2d
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639, 640 (9th Cir. 1988); see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding
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that there is no liberty interest entitling inmates to a specific grievance process). Because there is
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no right to any particular grievance process, it is impossible for due process to have been violated
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by ignoring or failing to properly process grievances. Numerous district courts in this circuit
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have reached the same conclusion. See Smith v. Calderon, 1999 WL 1051947 (N.D. Cal 1999)
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(finding that failure to properly process grievances did not violate any constitutional right); Cage
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v. Cambra, 1996 WL 506863 (N.D. Cal. 1996) (concluding that prison officials’ failure to
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properly process and address grievances does not support constitutional claim); James v. U.S.
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Marshal’s Service, 1995 WL 29580 (N.D. Cal. 1995) (dismissing complaint without leave to
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amend because failure to process a grievance did not implicate a protected liberty interest);
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Murray v. Marshall, 1994 WL 245967 (N.D. Cal. 1994) (concluding that prisoner’s claim that
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grievance process failed to function properly failed to state a claim under § 1983). Prisoners do,
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however, retain a First Amendment right to petition the government through the prison grievance
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process. See Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995). Therefore, interference with
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the grievance process may, in certain circumstances, implicate the First Amendment. Plaintiff,
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however, has not alleged any such interference and it is clear that all his grievances were
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processed.
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D.
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Substantive Claims
Plaintiff states that the facts alleged in the complaint give rise to § 1983 claims for
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deliberate indifference to his medical needs, retaliation, and denial of due process. The court
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does not agree.
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1.
Medical Needs
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The treatment a prisoner receives in prison and the conditions under which the
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prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel
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and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan,
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511 U.S. 825, 832 (1994). The Eighth Amendment “. . . embodies broad and idealistic concepts
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of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102
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(1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v.
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Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with
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“food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy,
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801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only
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when two requirements are met: (1) objectively, the official’s act or omission must be so serious
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such that it results in the denial of the minimal civilized measure of life’s necessities; and (2)
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subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of
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inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison
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official must have a “sufficiently culpable mind.” See id. A difference of opinion, however,
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between the prisoner and medical providers concerning the appropriate course of treatment does
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not give rise to an Eighth Amendment claim. See Jackson v. McIntosh, 90 F.3d 330, 332 (9th
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Cir. 1996).
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Here, plaintiff claims that defendant Long was deliberately indifferent to his
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medical needs. This contention, however, is belied by plaintiff’s statement that he was in fact
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treated by Long after his fall. Thus, defendant Long cannot be said to have been indifferent,
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deliberately or otherwise, to plaintiff’s medical needs. To the extent plaintiff asserts that he
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should have been examined further immediately instead of first being returned to his cell, such a
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claim amounts to a difference of medical opinion with defendant Long, who believed that
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plaintiff did not require immediate evaluation.
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2.
Retaliation
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In order to state a claim under 42 U.S.C. § 1983 for retaliation, the prisoner must
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establish that he was retaliated against for exercising a constitutional right, and that the
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retaliatory action was not related to a legitimate penological purpose, such as preserving
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institutional security. See Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam).
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In meeting this standard, the prisoner must demonstrate a specific link between the alleged
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retaliation and the exercise of a constitutional right. See Pratt v. Rowland, 65 F.3d 802, 807 (9th
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Cir. 1995); Valandingham v. Bojorquez, 866 F.2d 1135, 1138-39 (9th Cir. 1989). The prisoner
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must also show that the exercise of First Amendment rights was chilled, though not necessarily
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silenced, by the alleged retaliatory conduct. See Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir.
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2000), see also Rhodes v. Robinson, 408 F.3d 559, 569 (9th Cir. 2005). Thus, the prisoner
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plaintiff must establish the following in order to state a claim for retaliation: (1) prison officials
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took adverse action against the inmate; (2) the adverse action was taken because the inmate
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engaged in protected conduct; (3) the adverse action chilled the inmate’s First Amendment
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rights; and (4) the adverse action did not serve a legitimate penological purpose. See Rhodes,
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408 F.3d at 568.
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Here, it appears that plaintiff believes the threats of adverse action amount to
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actionable retaliation. However, based on the facts alleged, it is clear that adverse action was
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only threatened, not actually taken because plaintiff ultimately complied with the order to move
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to a different housing unit. Furthermore, the facts alleged do not indicate that plaintiff was
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engaging in any protected activity when the threats of adverse action were made. Plaintiff’s
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initial refusal to move to a different housing unit does not constitute protected activity and prison
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officials rightly warned plaintiff about the consequences of refusing their orders.
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3.
Due Process
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The court simply cannot glean any factual allegations to support a claim of denial
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of either substantive or procedural due process. To the extent plaintiff is asserting that
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defendants’ denials of his inmate grievances violated his due process rights, plaintiff has not
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stated any claim relating to the grievance process as more fully discussed above.
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III. CONCLUSION
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Because it does not appear possible that the deficiencies identified herein can be
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cured by amending the complaint, plaintiff is not entitled to leave to amend prior to dismissal of
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the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc).
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Plaintiff shall show cause in writing, within 30 days of the date of this order, why this action
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should not be dismissed for failure to state a claim. Plaintiff is warned that failure to respond to
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this order may result in dismissal of the action for the reasons outlined above, as well as for
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failure to prosecute and comply with court rules and orders. See Local Rule 110.
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IT IS SO ORDERED.
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DATED: August 10, 2011
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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