Dumbrique v. Brunner et al

Filing 4

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Amended Complaint due by 9/5/2014. Signed by Judge Phyllis J. Hamilton on 7/31/14. (Attachments: # 1 Certificate/Proof of Service)(nahS, COURT STAFF) (Filed on 7/31/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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EDWARD R. DUMBRIQUE,

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Plaintiff,
vs.

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ORDER OF DISMISSAL WITH
LEAVE TO AMEND

BRUNNER, et. al.,
Defendants.

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For the Northern District of California

United States District Court

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No. C 14-2598 PJH (PR)

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Plaintiff, a state prisoner at Pelican Bay State Prison, has filed a pro se civil rights
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complaint under 42 U.S.C. § 1983. He has been granted leave to proceed in forma
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pauperis.
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DISCUSSION
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A.

Standard of Review

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Federal courts must engage in a preliminary screening of cases in which prisoners
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seek redress from a governmental entity or officer or employee of a governmental entity.
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28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and
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dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may
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be granted, or seek monetary relief from a defendant who is immune from such relief. Id. at
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1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police
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Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
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Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of
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the claim showing that the pleader is entitled to relief." "Specific facts are not necessary;
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the statement need only '"give the defendant fair notice of what the . . . . claim is and the
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grounds upon which it rests."'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations
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omitted). Although in order to state a claim a complaint “does not need detailed factual

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

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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

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

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(citations omitted). A complaint must proffer "enough facts to state a claim to relief that is

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plausible on its face." Id. at 570. The United States Supreme Court has recently explained

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the “plausible on its face” standard of Twombly: “While legal conclusions can provide the

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framework of a complaint, they must be supported by factual allegations. When there are

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well-pleaded factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662,

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For the Northern District of California

United States District Court

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679 (2009).

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

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elements: (1) that a right secured by the Constitution or laws of the United States was

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violated, and (2) that the alleged deprivation was committed by a person acting under the

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color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

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B.

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Legal Claims
Plaintiff states that defendants retaliated against him for engaging in two separate

hunger strikes.
"Within the prison context, a viable claim of First Amendment retaliation entails five

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

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

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the 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

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Cir. 2005) (footnote omitted). Accord Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995)

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(prisoner suing prison officials under § 1983 for retaliation must allege that he was

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retaliated against for exercising his constitutional rights and that the retaliatory action did

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not advance legitimate penological goals, such as preserving institutional order and

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discipline).
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A prisoner must at least allege that he suffered harm, since harm that is more than

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minimal will almost always have a chilling effect. Rhodes, 408 F.3d at 567-68 n.11; see

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Gomez v. Vernon, 255 F.3d 1118, 1127-28 (9th Cir. 2001) (prisoner alleged injury by

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claiming he had to quit his law library job in the face of repeated threats by defendants to

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transfer him because of his complaints about the administration of the library).

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In order to recover damages for an allegedly unconstitutional conviction or

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imprisonment, or for other harm caused by actions whose unlawfulness would render a

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conviction or sentence invalid, a 42 U.S.C. § 1983 plaintiff must prove that the conviction or

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sentence has been reversed on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such determination, or called into question by

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For the Northern District of California

United States District Court

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a federal court's issuance of a writ of habeas corpus. Heck v. Humphrey, 512 U.S. 477,

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486-487 (1994). Heck also bars a claim for using the wrong procedures in a disciplinary

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hearing that resulted in the deprivation of time credits if "the nature of the challenge to the

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procedures [is] such as necessarily to imply the invalidity of the judgment." Edwards v.

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Balisok, 520 U.S. 641, 645 (1997).

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Plaintiff states that prison officials circulated a letter to inmates on September 27,

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2011, which stated that participating in a mass disturbance such as a hunger strike or work

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stoppage could result in disciplinary action. Approximately two years later plaintiff chose to

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participate in two hunger strikes and received Rules Violation Reports for his participation.

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As a result, plaintiff was assessed 90 loss of credits and other privileges. Plaintiff contends

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that the Rules Violation Reports were in retaliation for engaging in a hunger strike.

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However, plaintiff was notified well in advance that engaging in a mass disturbance hunger

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strike could result in disciplinary action and prison officials trying to prevent mass

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disturbances appears to advance a legitimate correctional goal. In the complaint, plaintiff

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notes that he is not seeking restoration of his lost credits, yet he is seeking monetary

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damages which would call into question the underlying disciplinary finding. This claim will

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be dismissed with leave to amend for plaintiff to address these issues.

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Plaintiff also states that during one of the hunger strikes a defendant guard yelled in

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a loud voice in plaintiff’s housing unit that plaintiff needed to pack up his property and get

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ready to move to the debriefer1 unit. Plaintiff responded that he was not a debriefer but the

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defendant stated that plaintiff had to move. Plaintiff states a week later that another

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defendant guard yelled that plaintiff needed to report to the “D Pod” where the debriefers

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and hunger strikers were reporting. Plaintiff alleges that by referring to him as a debriefer

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he could be harmed by other inmates. This claim is also dismissed with leave to amend for

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plaintiff to provide more information to demonstrate retaliation. That inmates who were

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engaged in a hunger strike were moved to a different part of the prison where debriefers
were also located does not necessarily show retaliation. Plaintiff should provide additional

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For the Northern District of California

United States District Court

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information to demonstrate a constitutional violation other than what different inmates were

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told by guards. Plaintiff must also address how this aspect of the claim is not barred by

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Heck.
CONCLUSION

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1. The complaint is DISMISSED with leave to amend in accordance with the

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standards set forth above. The amended complaint must be filed no later than September

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5, 2014, and must include the caption and civil case number used in this order and the

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

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completely replaces the original complaint, plaintiff must include in it all the claims he

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wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may

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not incorporate material from the original complaint by reference.

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2. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the

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court informed of any change of address by filing a separate paper with the clerk headed

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“Notice of Change of Address,” and must comply with the court's orders in a timely fashion.

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Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to

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Federal Rule of Civil Procedure 41(b).

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It appears that plaintiff is referring to a gang debriefing.
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IT IS SO ORDERED.
Dated: July 31, 2014.
PHYLLIS J. HAMILTON
United States District Judge

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For the Northern District of California

United States District Court

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