Williamson v. CSP Solano Mailroom Staff, et al.

Filing 22

ORDER signed by Magistrate Judge Edmund F. Brennan on 8/25/2015 VACATING the 18 findings and recommendations filed 4/30/2015. Within 30 days, plaintiff shall file a second amended complaint alleging a retaliation claim in accordance with this order. Failure to comply with this order will again result in a recommendation that this action be dismissed for failure to state a claim.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FREDDIE LEE WILLIAMSON,

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No. 2:13-cv-1978-WBS-EFB P

Plaintiff,
v.

ORDER

CSP SOLANO MAILROOM STAFF, et
al.,
Defendants.

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Plaintiff, a prisoner without counsel, has filed a complaint alleging civil rights violations

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pursuant to 42 U.S.C. § 1983. On April 30, 2015, the court recommended that this action be

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dismissed because plaintiff’s amended complaint failed to state a claim upon which relief could

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be granted. ECF No. 18. In his August 11, 2015 objections, plaintiff argues that his allegations

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could support a claim of First Amendment retaliation. The amended complaint did not include a

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retaliation claim and even liberally construed, the allegations therein are not sufficient to state a

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proper retaliation claim. In an abundance of caution, the court will vacate the April 30, 2015

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findings and recommendations and allow plaintiff leave to file an amended complaint alleging a

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retaliation claim.

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To state a viable First Amendment retaliation claim, a prisoner must allege five elements:

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“(1) An assertion that a state actor took some adverse action against an inmate (2) because of (3)
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that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First

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Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.”

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Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). Conduct protected by the First

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Amendment includes communications that are “part of the grievance process.” Brodheim v. Cry,

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584 F.3d 1262, 1271 n.4 (9th Cir. 2009). If plaintiff intends to assert a retaliation claim, he must

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specifically identify the protected conduct at issue, name the defendant who took adverse action

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against him, and plead that the allegedly adverse action was taken “because of” plaintiff’s

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protected conduct.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The April 30, 2015 findings and recommendations (ECF No. 18) are vacated.

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2. Within 30 days from the date this order is served, plaintiff may file a second amended

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complaint alleging a retaliation claim. The second amended complaint must be

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written or typed so that it so that it is complete in itself without reference to any earlier

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filed complaint and may not change the nature of this suit by alleging new, unrelated

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claims.

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3. Failure to comply with this order will again result in a recommendation that this action
be dismissed for failure to state a claim.
DATED: August 25, 2015.

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