Weaver v. First Watch, PBSP

Filing 5

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND. Signed by Judge Richard Seeborg on 5/28/14. (Attachments: # 1 Certificate/Proof of Service)(cl, COURT STAFF) (Filed on 5/28/2014)

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*E-Filed 5/28/14*

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN FRANCISCO DIVISION

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WILLIE WEAVER,
Plaintiff,

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ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

v.

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No. C 14-0453 RS (PR)

CAPTAIN, et al.,
Defendants.

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/

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INTRODUCTION

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This is a federal civil rights action filed pursuant to 42 U.S.C. § 1983 by a pro se state

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prisoner against his jailors at Pelican Bay State Prison. After reviewing the complaint

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pursuant to 28 U.S.C. § 1915A(a), the Court DISMISSES the complaint with leave to file an

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amended complaint on or before July 7, 2014.
DISCUSSION

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A.

Standard of Review
A “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim

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to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)

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(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial

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No. C 14-0453 RS (PR)
ORDER DISMISSING COMPLAINT

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plausibility when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting

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Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal conclusions

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cast in the form of factual allegations if those conclusions cannot reasonably be drawn from

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the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 (9th Cir. 1994).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements:

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that a right secured by the Constitution or laws of the United States was violated, and

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that the alleged violation was committed by a person acting under the color of state law. See

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West v. Atkins, 487 U.S. 42, 48 (1988).

United States District Court
For the Northern District of California

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B.

(1)
(2)

Legal Claims
Plaintiff alleges in his complaint that an unnamed person woke him up at 2:30 a.m. on

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January 17, 2014. He also alleges that his jailors often wake him up, thereby depriving him

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of sleep, in retaliation for his filing of lawsuits. The complaint does not contain sufficient

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factual matter to state a claim for relief. First, he fails to name the person who woke him in

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January. Second, a single instance of waking a prisoner early in the morning does not

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constitute an Eighth Amendment violation. To state a claim under the Eighth Amendment

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for deliberate indifference, a prisoner-plaintiff must allege specific facts indicating that a

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prison official knows that a prisoner faces a substantial risk of serious harm and disregards

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that risk by failing to take reasonable steps to abate it. See Farmer v. Brennan, 511 U. S.

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825, 837 (1994). Third, his allegations that he was woken at other times are undetailed. He

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fails to give the times and dates of such occurrences, which of his jailors allegedly committed

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the act or acts, and how often such acts occurred.

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Fourth, he fails to allege specific facts showing that such acts, if committed, are

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retaliatory. It is insufficient to state without elaboration that “this occurred because of that.”

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“Within the prison context, a viable claim of First Amendment retaliation entails five basic

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elements: (1) An assertion that a state actor took some adverse action against an inmate

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(2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the

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No. C 14-0453 RS (PR)
ORDER DISMISSING COMPLAINT

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inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably

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advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir.

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2005). Plaintiff has the burden of showing that retaliation for the exercise of protected

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conduct was the “substantial” or “motivating” factor behind the defendant’s actions. Mt.

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Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Hines v. Gomez, 108

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F.3d 265, 267–68 (9th Cir. 1997). In order to create a genuine issue of material fact on

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retaliatory motive in the First Amendment context, a plaintiff must establish “‘in addition to

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evidence that the defendant knew of the protected speech, at least (1) evidence of proximity

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in time between the protected speech and the allegedly retaliatory decision; (2) evidence that

United States District Court
For the Northern District of California

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the defendant expressed opposition to the speech; or (3) evidence that the defendant’s

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proffered reason for the adverse action was pretextual.’” Corales v. Bennett, 567 F.3d 554,

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568 (9th Cir. 2009) (internal citation and emphasis omitted). Also, as to the fourth Rhodes

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element, viz., whether the inmate was chilled from exercising his First Amendment rights, a

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prisoner-plaintiff must at least allege that he suffered harm more than minimal. Id., 408 F.3d

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at 567–68 n.11.

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Retaliation is not established simply by showing adverse activity by defendant after

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protected speech; rather, plaintiff must show a nexus between the two. See Huskey v. City of

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San Jose, 204 F.3d 893, 899 (9th Cir. 2000) (summary judgment proper against plaintiff who

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could only speculate that adverse employment decision was due to his negative comments

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about his supervisor six or seven months earlier; retaliation claim cannot rest on the logical

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fallacy of post hoc, ergo propter hoc, i.e., “after this, therefore because of this”). See also

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Dietrich v. John Ascuaga’s Nugget, 548 F.3d 892, 901 (9th Cir. 2008) (finding no retaliation

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where plaintiff presented no evidence that defendants gave her a traffic citation after reading

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a newspaper article about her First Amendment activities, rather than because she drove past

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a police barricade with a “road closed” sign on it).

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Accordingly, the complaint is DISMISSED with leave to amend. Plaintiff shall file an

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amended complaint on or before July 7, 2014. The first amended complaint must include the

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No. C 14-0453 RS (PR)
ORDER DISMISSING COMPLAINT

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caption and civil case number used in this order (14-0453 RS (PR)) and the words FIRST

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AMENDED COMPLAINT on the first page. Because an amended complaint completely

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replaces the previous complaints, plaintiff must include in his first amended complaint all the

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claims he wishes to present and all of the defendants he wishes to sue. See Ferdik v.

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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Plaintiff may not incorporate material from

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the prior complaint by reference. Failure to file an amended complaint in accordance with

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this order will result in dismissal of this action without further notice to plaintiff.

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It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court
informed of any change of address by filing a separate paper with the clerk headed “Notice of

United States District Court
For the Northern District of California

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Change of Address.” He must comply with the Court’s orders in a timely fashion or ask for

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an extension of time to do so. Failure to comply may result in the dismissal of this action

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pursuant to Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.
DATED: May 28, 2014
RICHARD SEEBORG
United States District Judge

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No. C 14-0453 RS (PR)
ORDER DISMISSING COMPLAINT

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