Henry v. Vanni et al
Filing
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ORDER signed by Magistrate Judge Craig M. Kellison on 02/19/16 ordering plaintiff's amended complaint is dismissed for failure to state a claim without leave to amend. The clerk of the court is directed to close this case. CASE CLOSED. (Plummer, 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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KENNETH R. HENRY,
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No. 2:12-cv-2828-CMK-P
Plaintiff,
vs.
ORDER
PETER VANNI, et al.
Defendants.
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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42
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U.S.C. § 1983. Plaintiff has consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. §
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636(c) and no other party has been served or appeared in the action. On May 14, 2015, the court
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issued an order to show cause why plaintiff’s amended complaint should not be dismissed for
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failure to state a claim. Pending before the court is plaintiff’s response thereto.
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The court screened plaintiff’s amended complaint and found that plaintiff failed to
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correct the defects the court found in plaintiff’s original complaint. Specifically, plaintiff claims
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he was subjected to dangerous cell moves that had the possibility of leading to a cell fight or
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murder. The court explained to plaintiff what was required to state a claim for an Eighth
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Amendment violation where the prison officials knowingly place a prisoner in a situation where
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there is a substantial risk of serious harm and fail to protect a prisoner from known harm.
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Plaintiff’s amended complaint suffered the same lack of allegations showing any real risk of
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substantial harm. Thus, the court ordered plaintiff to show cause why this case should not be
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dismissed. In response to the order to show cause, plaintiff now alleges that the risky cell
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assignments were done in retaliation to his inmate grievances on several prison officials.
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Plaintiff’s response fails to meet the necessary showing to avoid dismissal of this action.
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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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Raising a new claim in response to the order to show cause is insufficient. Even if
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the court were to find it sufficient, the allegations in the response fails to allege sufficient facts to
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state a claim for retaliation. Plaintiff’s allegations that he was put in cells with other inmates
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where there was a risk of harm is questionable adverse action. Such allegations are so tenuous,
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that even if true, the court cannot find it would qualify as an adverse action without a showing of
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an actual risk of harm. The vague and conclusory allegations of plaintiff’s perceived risk are
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insufficient. In addition, there are no allegations that plaintiff’s First Amendment rights were
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chilled or impacted all. Plaintiff sets forth the elements of a claim for retaliation, but fails to
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allege facts that would indicate that there was any impact on his First Amendment rights, or that
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he suffered any actual harm. Such vague allegations are simply insufficient.
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As discussed in the court’s prior order, plaintiff’s amended complaint fails to state
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a claim. The court found plaintiff failed to cure the defects in his complaint. The court further
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finds plaintiff’s response to the order to show cause insufficient to show the defects addressed in
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the court’s prior orders are curable. Thus, dismissal without leave to amend is appropriate. See
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Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc).
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Accordingly, IT IS HEREBY ORDERED that:
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Plaintiff’s amended complaint is dismissed for failure to state a claim,
without leave to amend; and
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The Clerk of the Court is directed to close this case.
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DATED: February 19, 2016
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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