Diaz v. Perez et al

Filing 7

ORDER OF DISMISSAL. For the foregoing reasons, the amended complaint is DISMISSED without leave to amend for failure to state a claim on which relief may be granted. Signed by Judge Edward J. Davila on 5/1/2013. (ecg, COURT STAFF) (Filed on 5/2/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ENRIQUE DIAZ,
Plaintiff,

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v.

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M. PEREZ, et. al.,
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Defendants.
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No. C 13-00621 EJD (PR)

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ORDER OF DISMISSAL

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Plaintiff, a state prisoner at Salinas Valley State Prison, filed the instant civil rights

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action in pro se pursuant to 42 U.S.C. § 1983. On April 3, 2013, the Court dismissed the

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complaint with leave to amend. (See Docket No. 5.) Plaintiff has filed an amended

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complaint. (Docket No. 6.)

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DISCUSSION

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A.

Standard of Review
A federal court must conduct a preliminary screening in any case in which a

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prisoner seeks redress from a governmental entity or officer or employee of a

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governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify

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any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a
Order of Dismissal
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claim upon which relief may be granted or seek monetary relief from a defendant who is

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immune from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be

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

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1988).
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 violation was committed by a person acting under the

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

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B.

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Plaintiff’s Claims
Plaintiff alleges that he was issued a false Rules Violation Report (“RVR”) by

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Officer M. Perez for possessing manufactured alcohol and assessed a 120 days forfeiture

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of credits in retaliation for filing an inmate grievance about an assault on his cell-mate by

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Officer L. Hernandez. (Am. Compl. at 4-5-A.) Plaintiff claims that Defendants Pennisi,

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R. A. Kessler and D. Ambriz supervised the authenticity of the report. (Id. at 5-A.)

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Plaintiff also alludes to two other allegedly false RVRs without explaining the

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circumstances, while asserting that Officer Perez was acting in retaliation against him for

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submitting staff complaints against him. (Id. at 7-8-8-A.) At the end of the complaint,

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Plaintiff states that he was placed in the administrative segregation unit for ten months

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“due to safety concerns, because Defendants’ retaliatory measures applied to Plaintiff for

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simply engaging in his First Amendment Right to complain.” (Id. at 9-A.)

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In the Court’s Order of Dismissal with Leave to Amend, Plaintiff was advised of

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the necessary elements for stating a First Amendment retaliation claim. (See Docket No.

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5 at 4.) “Within the prison context, a viable claim of First Amendment retaliation entails

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

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an inmate (2) because of (3) that prisoner’s protected conduct, and that such action

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

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reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559,

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567-68 (9th Cir. 2005) (footnote omitted). Here, Plaintiff’s allegations are insufficient to
Order of Dismissal
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state a claim because he is missing the fourth element, i.e., that Defendants’ actions

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“chilled” his exercise of his First Amendment rights. According to the amended

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complaint, Plaintiff continued to file staff complaints despite Defendants’ actions. He

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also alludes to a pending state suit in Monterey County, but there is no allegation that

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Defendants’ actions are interfering with his ability to pursue that action. Retaliation is

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not established simply by showing adverse activity by a defendant after protected speech;

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rather, plaintiff must show a nexus between the two. See Huskey v. City of San Jose, 204

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F.3d 893, 899 (9th Cir. 2000) (retaliation claim cannot rest on the logical fallacy of post

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hoc, ergo propter hoc, i.e., “after this, therefore because of this”). Accordingly, this

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retaliation claim is DISMISSED for failure to state a claim.
Plaintiff’s claims for damages in his original complaint for the loss of credits based

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on the allegedly false RVR was dismissed under Heck v. Humphrey, 512 U.S. 477

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(1994). (See Docket No. 5 at 3.) It does not appear from the amended complaint that the

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RVR has been invalidated, so there is no viable claim for damages. See Trimble v. City

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of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995) (claims barred by Heck may be dismissed

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sua sponte without prejudice).

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Because there are no cognizable claims, the Court has no choice but to dismiss the

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amended complaint for failure to state a claim upon which relief may be granted. See 28

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U.S.C. § 1915A(b).

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CONCLUSION

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For the foregoing reasons, the amended complaint is DISMISSED without leave to
amend for failure to state a claim on which relief may be granted.

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DATED:

5/1/2013

EDWARD J. DAVILA
United States District Judge

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Order of Dismissal
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

ENRIQUE DIAZ,

Case Number: CV13-00621 EJD

Plaintiff,

CERTIFICATE OF SERVICE

v.
M. PEREZ, et al.,
Defendants.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
5/2/2013
That on
, I SERVED a true and correct copy(ies) of the
attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s)
hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into
an inter-office delivery receptacle located in the Clerk's office.

Enrique Diaz K-70268
Salinas Valley State Prison
P. O. Box 1050
Soledad, CA 93960
Dated:

5/2/2013
Richard W. Wieking, Clerk
/s/ By: Elizabeth Garcia, Deputy Clerk