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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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 OAKLAND DIVISION 6 7 EDWARD R. DUMBRIQUE, 8 Plaintiff, vs. 9 ORDER OF DISMISSAL WITH LEAVE TO AMEND BRUNNER, et. al., Defendants. 11 For the Northern District of California United States District Court 10 No. C 14-2598 PJH (PR) / 12 Plaintiff, a state prisoner at Pelican Bay State Prison, has filed a pro se civil rights 13 complaint under 42 U.S.C. § 1983. He has been granted leave to proceed in forma 14 pauperis. 15 DISCUSSION 16 A. Standard of Review 17 Federal courts must engage in a preliminary screening of cases in which prisoners 18 seek redress from a governmental entity or officer or employee of a governmental entity. 19 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and 20 dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may 21 be granted, or seek monetary relief from a defendant who is immune from such relief. Id. at 22 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police 23 Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 24 Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of 25 the claim showing that the pleader is entitled to relief." "Specific facts are not necessary; 26 the statement need only '"give the defendant fair notice of what the . . . . claim is and the 27 grounds upon which it rests."'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations 28 omitted). Although in order to state a claim a complaint “does not need detailed factual 1 allegations, . . . a plaintiff's obligation to provide the 'grounds’ of his 'entitle[ment] to relief' 2 requires more than labels and conclusions, and a formulaic recitation of the elements of a 3 cause of action will not do. . . . Factual allegations must be enough to raise a right to relief 4 above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) 5 (citations omitted). A complaint must proffer "enough facts to state a claim to relief that is 6 plausible on its face." Id. at 570. The United States Supreme Court has recently explained 7 the “plausible on its face” standard of Twombly: “While legal conclusions can provide the 8 framework of a complaint, they must be supported by factual allegations. When there are 9 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, 11 For the Northern District of California United States District Court 10 679 (2009). 12 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 13 elements: (1) that a right secured by the Constitution or laws of the United States was 14 violated, and (2) that the alleged deprivation was committed by a person acting under the 15 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 16 B. 17 18 19 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 20 basic elements: (1) an assertion that a state actor took some adverse action against an 21 inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled 22 the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably 23 advance a legitimate correctional goal." Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th 24 Cir. 2005) (footnote omitted). Accord Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) 25 (prisoner suing prison officials under § 1983 for retaliation must allege that he was 26 retaliated against for exercising his constitutional rights and that the retaliatory action did 27 not advance legitimate penological goals, such as preserving institutional order and 28 discipline). 2 1 A prisoner must at least allege that he suffered harm, since harm that is more than 2 minimal will almost always have a chilling effect. Rhodes, 408 F.3d at 567-68 n.11; see 3 Gomez v. Vernon, 255 F.3d 1118, 1127-28 (9th Cir. 2001) (prisoner alleged injury by 4 claiming he had to quit his law library job in the face of repeated threats by defendants to 5 transfer him because of his complaints about the administration of the library). 6 In order to recover damages for an allegedly unconstitutional conviction or 7 imprisonment, or for other harm caused by actions whose unlawfulness would render a 8 conviction or sentence invalid, a 42 U.S.C. § 1983 plaintiff must prove that the conviction or 9 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 11 For the Northern District of California United States District Court 10 a federal court's issuance of a writ of habeas corpus. Heck v. Humphrey, 512 U.S. 477, 12 486-487 (1994). Heck also bars a claim for using the wrong procedures in a disciplinary 13 hearing that resulted in the deprivation of time credits if "the nature of the challenge to the 14 procedures [is] such as necessarily to imply the invalidity of the judgment." Edwards v. 15 Balisok, 520 U.S. 641, 645 (1997). 16 Plaintiff states that prison officials circulated a letter to inmates on September 27, 17 2011, which stated that participating in a mass disturbance such as a hunger strike or work 18 stoppage could result in disciplinary action. Approximately two years later plaintiff chose to 19 participate in two hunger strikes and received Rules Violation Reports for his participation. 20 As a result, plaintiff was assessed 90 loss of credits and other privileges. Plaintiff contends 21 that the Rules Violation Reports were in retaliation for engaging in a hunger strike. 22 However, plaintiff was notified well in advance that engaging in a mass disturbance hunger 23 strike could result in disciplinary action and prison officials trying to prevent mass 24 disturbances appears to advance a legitimate correctional goal. In the complaint, plaintiff 25 notes that he is not seeking restoration of his lost credits, yet he is seeking monetary 26 damages which would call into question the underlying disciplinary finding. This claim will 27 be dismissed with leave to amend for plaintiff to address these issues. 28 3 Plaintiff also states that during one of the hunger strikes a defendant guard yelled in 1 2 a loud voice in plaintiff’s housing unit that plaintiff needed to pack up his property and get 3 ready to move to the debriefer1 unit. Plaintiff responded that he was not a debriefer but the 4 defendant stated that plaintiff had to move. Plaintiff states a week later that another 5 defendant guard yelled that plaintiff needed to report to the “D Pod” where the debriefers 6 and hunger strikers were reporting. Plaintiff alleges that by referring to him as a debriefer 7 he could be harmed by other inmates. This claim is also dismissed with leave to amend for 8 plaintiff to provide more information to demonstrate retaliation. That inmates who were 9 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 11 For the Northern District of California United States District Court 10 information to demonstrate a constitutional violation other than what different inmates were 12 told by guards. Plaintiff must also address how this aspect of the claim is not barred by 13 Heck. CONCLUSION 14 15 1. The complaint is DISMISSED with leave to amend in accordance with the 16 standards set forth above. The amended complaint must be filed no later than September 17 5, 2014, and must include the caption and civil case number used in this order and the 18 words AMENDED COMPLAINT on the first page. Because an amended complaint 19 completely replaces the original complaint, plaintiff must include in it all the claims he 20 wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may 21 not incorporate material from the original complaint by reference. 22 2. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the 23 court informed of any change of address by filing a separate paper with the clerk headed 24 “Notice of Change of Address,” and must comply with the court's orders in a timely fashion. 25 Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to 26 Federal Rule of Civil Procedure 41(b). 27 28 1 It appears that plaintiff is referring to a gang debriefing. 4 1 2 IT IS SO ORDERED. Dated: July 31, 2014. PHYLLIS J. HAMILTON United States District Judge 3 4 G:\PRO-SE\PJH\CR.14\Dumbrique2598.dwlta.wpd 5 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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