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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DAVID ARTHUR DEPONTE,
Plaintiff,

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Case No. 23-cv-03813-JD
ORDER RE DISMISSAL

v.
MIRNA BIERMAN, et al.,
Defendants.

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United States District Court
Northern District of California

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Plaintiff, a state prisoner, filed a pro se civil rights complaint under 42 U.S.C. § 1983. The

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amended complaint was dismissed with leave to amend plaintiff filed a second amended

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complaint.
DISCUSSION

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STANDARD OF REVIEW

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Federal courts engage in a preliminary screening of cases in which prisoners seek redress

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from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). In its review, the Court must identify any cognizable claims, and dismiss any claims

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which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek

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monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se

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pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th

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Cir. 1990).

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Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the

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claim showing that the pleader is entitled to relief.” Although a complaint “does not need detailed

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factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to

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relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a

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cause of action will not do . . . . Factual allegations must be enough to raise a right to relief above

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the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations

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omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its

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face.” Id. at 570. The United States Supreme Court has explained the “plausible on its face”

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standard of Twombly: “While legal conclusions can provide the framework of a complaint, they

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must be supported by factual allegations. When there are well-pleaded factual allegations, a court

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should assume their veracity and then determine whether they plausibly give rise to an entitlement

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to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

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United States District Court
Northern District of California

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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).

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LEGAL CLAIMS

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Plaintiff states that officials at many prisons retaliated against him for protected conduct.

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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 (2)

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

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exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate

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correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted).

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Accord Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (prisoner suing prison officials under

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Section 1983 for retaliation must allege that he was retaliated against for exercising his

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constitutional rights and that the retaliatory action did not advance legitimate penological goals,

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such as preserving institutional order and discipline); Barnett v. Centoni, 31 F.3d 813, 816 (9th

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Cir. 1994) (per curiam) (same). The prisoner must show that the type of activity he was engaged in

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was constitutionally protected, that the protected conduct was a substantial or motivating factor for

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the alleged retaliatory action, and that the retaliatory action advanced no legitimate penological

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interest. Hines v. Gomez, 108 F.3d 265, 267-68 (9th Cir. 1997) (inferring retaliatory motive from

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circumstantial evidence).

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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
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system and the loss of his job. However, plaintiff provided no information regarding the

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harassment and how the retaliation was related to his reporting of it. The Court noted that some of

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the alleged retaliation regarding the mental health system occurred before plaintiff’s reporting of

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the harassment. Plaintiff also described other adverse acts that were taken against him by prison

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officials but did not describe how it was related to his original report of harassment. The original

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complaint was dismissed with leave to amend to address these deficiencies.

United States District Court
Northern District of California

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Plaintiff’s amended complaint failed to provide any clarity. With respect to the reporting

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of harassment, plaintiff stated that he told a supervisor that another inmate was staring at a

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supervisor’s body and then plaintiff was moved to a different workspace with a malfunctioning

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sewing machine. Plaintiff also raised a new claim stating that he had reported a prison staff

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member for bringing in drugs, and was subsequently subjected to mental health referrals by

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defendants. Plaintiff again failed to identify any protected conduct and how the adverse actions

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were related to such conduct. Overall, the allegations were conclusory and some of the alleged

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retaliation occurred at a different prison.

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The amended complaint was dismissed with leave to amend. Plaintiff was instructed to

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provide more information regarding his protected conduct regarding the other inmate and the work

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harassment. Plaintiff’s statements about another inmate’s behavior did not appear to be protected

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conduct. Plaintiff was also advised to identify the approximate date of his protected conduct

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regarding the staff member bringing in drugs and the approximate dates that he was referred to

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mental health treatment.

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The second amended complaint did not improve the prior pleading shortfalls. It does not

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address any of the original claims or defendants or the deficiencies noted by the Court. Instead,

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plaintiff refers the Court to his previous complaints and the allegations. The second amended

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complaint contains allegations of unrelated incidents at several other prisons in 2023 and 2024.

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Plaintiff states that all these new incidents are retaliation from the 2021 incidents in the original

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complaints, but provides no support. He states that a prison official failed to investigate an

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assault, he was placed in Administrative Segregation, there was mold and asbestos in his cell, a

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prison official changed plaintiff’s reading level score in his file, he was assaulted by other inmates
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and his cell flooded.
Plaintiff was advised that unrelated claims against different defendants should be alleged in

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separate complaints. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Parties may be

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joined as defendants only if “there is asserted against them jointly, severally, or in the alternative,

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any right to relief in respect of or arising out of the same transaction, occurrence, or series of

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transactions or occurrences and if any question of law or fact common to all defendants will arise

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in the action.” Fed. R. Civ. P. 20(a). As a practical matter, this means that claims involving

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different parties cannot be joined together in one complaint if the facts giving rise to the claims

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were not factually related in some way -- that is, if there was not “similarity in the factual

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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

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conclusory allegations are insufficient, and he did not address the deficiencies noted by the Court.

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The retaliation claims are dismissed without leave to amend. The new claims in the second

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amended complaint are dismissed because they are entirely unrelated and occurred over several

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years at multiple prisons, many not in this district. Plaintiff may pursue those claims in separate

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actions in the districts where they occurred.1
CONCLUSION

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This action is dismissed without leave to amend. The Clerk is requested to close this case.

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IT IS SO ORDERED.

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Dated: May 13, 2024

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JAMES DONATO
United States District Judge

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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.
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