DePonte v. Bierman et al

Filing 50

ORDER DISMISSING CASE. Signed by Judge James Donato on 5/13/2024. (lrc, COURT STAFF) (Filed on 5/13/2024)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 DAVID ARTHUR DEPONTE, Plaintiff, 7 8 9 Case No. 23-cv-03813-JD ORDER RE DISMISSAL v. MIRNA BIERMAN, et al., Defendants. 10 United States District Court Northern District of California 11 12 Plaintiff, a state prisoner, filed a pro se civil rights complaint under 42 U.S.C. § 1983. The 13 amended complaint was dismissed with leave to amend plaintiff filed a second amended 14 complaint. DISCUSSION 15 16 STANDARD OF REVIEW 17 Federal courts engage in a preliminary screening of cases in which prisoners seek redress 18 from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 19 § 1915A(a). In its review, the Court must identify any cognizable claims, and dismiss any claims 20 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 21 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se 22 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 23 Cir. 1990). 24 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 25 claim showing that the pleader is entitled to relief.” Although a complaint “does not need detailed 26 factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to 27 relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a 28 cause of action will not do . . . . Factual allegations must be enough to raise a right to relief above 1 the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations 2 omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its 3 face.” Id. at 570. The United States Supreme Court has explained the “plausible on its face” 4 standard of Twombly: “While legal conclusions can provide the framework of a complaint, they 5 must be supported by factual allegations. When there are well-pleaded factual allegations, a court 6 should assume their veracity and then determine whether they plausibly give rise to an entitlement 7 to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 8 9 United States District Court Northern District of California 10 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1) a right secured by the Constitution or laws of the United States was violated, and (2) the alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 11 LEGAL CLAIMS 12 Plaintiff states that officials at many prisons retaliated against him for protected conduct. 13 “Within the prison context, a viable claim of First Amendment retaliation entails five basic 14 elements: (1) An assertion that a state actor took some adverse action against an inmate (2) 15 because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 16 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 17 correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted). 18 Accord Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (prisoner suing prison officials under 19 Section 1983 for retaliation must allege that he was retaliated against for exercising his 20 constitutional rights and that the retaliatory action did not advance legitimate penological goals, 21 such as preserving institutional order and discipline); Barnett v. Centoni, 31 F.3d 813, 816 (9th 22 Cir. 1994) (per curiam) (same). The prisoner must show that the type of activity he was engaged in 23 was constitutionally protected, that the protected conduct was a substantial or motivating factor for 24 the alleged retaliatory action, and that the retaliatory action advanced no legitimate penological 25 interest. Hines v. Gomez, 108 F.3d 265, 267-68 (9th Cir. 1997) (inferring retaliatory motive from 26 circumstantial evidence). 27 28 Plaintiff’s original complaint was difficult to understand. Plaintiff stated that in 2021 he reported harassment at his prison job and then suffered retaliation through the prison mental health 2 1 system and the loss of his job. However, plaintiff provided no information regarding the 2 harassment and how the retaliation was related to his reporting of it. The Court noted that some of 3 the alleged retaliation regarding the mental health system occurred before plaintiff’s reporting of 4 the harassment. Plaintiff also described other adverse acts that were taken against him by prison 5 officials but did not describe how it was related to his original report of harassment. The original 6 complaint was dismissed with leave to amend to address these deficiencies. United States District Court Northern District of California 7 Plaintiff’s amended complaint failed to provide any clarity. With respect to the reporting 8 of harassment, plaintiff stated that he told a supervisor that another inmate was staring at a 9 supervisor’s body and then plaintiff was moved to a different workspace with a malfunctioning 10 sewing machine. Plaintiff also raised a new claim stating that he had reported a prison staff 11 member for bringing in drugs, and was subsequently subjected to mental health referrals by 12 defendants. Plaintiff again failed to identify any protected conduct and how the adverse actions 13 were related to such conduct. Overall, the allegations were conclusory and some of the alleged 14 retaliation occurred at a different prison. 15 The amended complaint was dismissed with leave to amend. Plaintiff was instructed to 16 provide more information regarding his protected conduct regarding the other inmate and the work 17 harassment. Plaintiff’s statements about another inmate’s behavior did not appear to be protected 18 conduct. Plaintiff was also advised to identify the approximate date of his protected conduct 19 regarding the staff member bringing in drugs and the approximate dates that he was referred to 20 mental health treatment. 21 The second amended complaint did not improve the prior pleading shortfalls. It does not 22 address any of the original claims or defendants or the deficiencies noted by the Court. Instead, 23 plaintiff refers the Court to his previous complaints and the allegations. The second amended 24 complaint contains allegations of unrelated incidents at several other prisons in 2023 and 2024. 25 Plaintiff states that all these new incidents are retaliation from the 2021 incidents in the original 26 complaints, but provides no support. He states that a prison official failed to investigate an 27 assault, he was placed in Administrative Segregation, there was mold and asbestos in his cell, a 28 prison official changed plaintiff’s reading level score in his file, he was assaulted by other inmates 3 1 and his cell flooded. Plaintiff was advised that unrelated claims against different defendants should be alleged in 2 3 separate complaints. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Parties may be 4 joined as defendants only if “there is asserted against them jointly, severally, or in the alternative, 5 any right to relief in respect of or arising out of the same transaction, occurrence, or series of 6 transactions or occurrences and if any question of law or fact common to all defendants will arise 7 in the action.” Fed. R. Civ. P. 20(a). As a practical matter, this means that claims involving 8 different parties cannot be joined together in one complaint if the facts giving rise to the claims 9 were not factually related in some way -- that is, if there was not “similarity in the factual 10 background.” Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir. 1997). Plaintiff has been provided multiple opportunities to plausibly allege retaliation. His United States District Court Northern District of California 11 12 conclusory allegations are insufficient, and he did not address the deficiencies noted by the Court. 13 The retaliation claims are dismissed without leave to amend. The new claims in the second 14 amended complaint are dismissed because they are entirely unrelated and occurred over several 15 years at multiple prisons, many not in this district. Plaintiff may pursue those claims in separate 16 actions in the districts where they occurred.1 CONCLUSION 17 18 This action is dismissed without leave to amend. The Clerk is requested to close this case. 19 IT IS SO ORDERED. 20 Dated: May 13, 2024 21 22 JAMES DONATO United States District Judge 23 24 25 26 27 28 1 The Court already transferred a separate case from plaintiff regarding the altering of his reading level score to the Eastern District of California. See DePonte v. Bowman, Case No. 24-1414 JD. 4

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