Jones v. Bannister et al
MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge Valerie P. Cooke, on 9/15/2017. Plaintiff's motion to revisit screening order ECF No. 4 is DENIED. (Copies have been distributed pursuant to the NEF - KW)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
BRUCE BANNISTER, et al.,
MINUTES OF THE COURT
September 15, 2017
THE HONORABLE VALERIE P. COOKE, U.S. MAGISTRATE JUDGE
REPORTER: NONE APPEARING
COUNSEL FOR PLAINTIFF(S): NONE APPEARING
COUNSEL FOR DEFENDANT(S): NONE APPEARING
MINUTE ORDER IN CHAMBERS:
Before the court is plaintiff’s motion to revisit screening order (ECF No. 15).
Defendants, Romeo Aranas, Isidro Baca, Candis Brockway, Sheryl Foster, Johnathan Perry, and
Ashley Randolph (defendants), opposed the motion (ECF No. 16), and plaintiff replied (ECF No.
21). The court construes plaintiff’s motion as one for clarification of the screening order
regarding Count III of his complaint (ECF No. 4).
As recounted in the screening order, plaintiff alleges the following in Count III:
On February 19, 2015, plaintiff was discussing the condition of his tooth
with a new dentist and told that dentist, “your predecessor left a lot ‘in my
opinion’ to be desired.” (ECF No. 1-1 at 20.) Randolph, the x-ray technician,
chastised plaintiff for his personal remarks about another dentist. (Id.)
Randolph told plaintiff, “I would appreciate it if you did not make such
comments.” (Id. at 21). Plaintiff and Randolph exchanged some remarks and,
at one point, plaintiff attempted to diffuse the situation. (Id.). When Randolph
seemed to want to escalate the conversation, plaintiff stopped speaking. (Id.)
On February 20, 2015, Randolph wrote a false notice of charges against
plaintiff alleging G1 and G18 delaying, hindering, and interfering with staff.
(Id. at 22.) At his disciplinary hearing, plaintiff pleaded “not guilty” to the
charges. (Id.) The hearing officer dismissed both charges and stated: “Neither
the G1 [nor] the G18 are supported in this OIC. By Ms. Randolph’s written
statement, [plaintiff] stopped talking and left the dental lab when instructed.”
Plaintiff filed grievances to have the notice of charges expunged. (Id. at
23.) Baca and Foster denied the grievances. (Id.) The charges remained part
of plaintiff’s record. (Id.) Although plaintiff’s record states, “dismissed,” the
parole board can still see the false charges and weigh it either positively or
negatively in their discretion. (Id. at 25).
Although plaintiff characterizes his claims as violations of the First and Fourteenth
Amendments, the court construed them as claims for due process and retaliation (ECF No. 4 at 811). Plaintiff asks the court reinstate his “free standing” First Amendment claims in addition to
the retaliation and due process claims. The court declines to do so because plaintiff’s retaliation
claim is, by its very nature, a First Amendment retaliation claim. See ECF No. 4 at page 10, line
27-28: 11:1-11. It is redundant to split the claim into two parts because a prerequisite to a
retaliation claim is that the plaintiff engaged in a protected conduct; in this instance, free speech.
The elements of a First Amendment retaliation claim clearly contemplate this concept. Rhodes v.
Robinson, 408 F.3d 559, 567-68 (9th Cir. 2004).
Based upon the foregoing, plaintiff’s motion to revisit screening order (ECF No. 4 is
IT IS SO ORDERED.
DEBRA K. KEMPI, CLERK
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