Ronald James Brewer v. Frank Taylor et al
Filing
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ORDER DISMISSING CASE by Magistrate Judge Victor B. Kenton, Plaintiff will be afforded an opportunity to amend his Complaint to attempt to overcome the defects discussed above, and to allege a cognizable constitutional claim Accordingly, IT IS HEREBY ORDERED: (1) Plaintiffs Complaint is dismissed with leave to amend; and (2) Plaintiff is granted 30 days from the date of this memorandum and order within which to file a First Amended Complaint. The First Amended Complaint must be complete within i tself and shall not incorporate by reference and portion of the original Complaint. Plaintiff may not add new parties without leave of the Court. Failure to comply with the requirements set forth in this Memorandum and Order may result in a recommendation that this action be dismissed with prejudice. re Complaint (Prisoner Civil Rights) 3 (SEE ORDER FOR FURTHER DETAILS) (lmh)
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
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RONALD JAMES BREWER,
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Plaintiff,
v.
FRANK TAYLOR, et al.,
Defendants.
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No. ED CV 11-01346-DMG (VBK)
ORDER RE DISMISSAL WITH LEAVE TO
AMEND
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Ronald James Brewer (hereinafter referred to as “Plaintiff”),
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appearing pro per, filed a Civil Rights Complaint pursuant to 42
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U.S.C. §1983 on September 12, 2011, pursuant to the Court’s Order re
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Leave to File Action without Prepayment of Full Filing Fee. Plaintiff
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has named as Defendants Captain Frank Taylor and Lt. Gay Fredrickson
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in their individual capacities. (Complaint at 2-3.)
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STATEMENT OF FACTS
Plaintiff alleges that Defendants were “deliberately indifferent”
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on March 8, 2011 in responding to Plaintiff’s grievances.
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alleges that on March 7, 2011, he lodged a complaint against jail
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officials arguing that the 30-day review of an inmate’s administrative
Plaintiff
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segregation placement accorded by the Riverside County Sheriff’s
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department did not comport with due process. (Complaint at ¶ 18.)
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Plaintiff
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provided within 24 hours of the initial complaint, which is unheard of
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in Plaintiff’s experience with jail grievances, and the response
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references a vague reason ( which Plaintiff alludes is a ruse) for
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Plaintiff’s placement in administrative segregation, even though no
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explanation for such placement was sought by Plaintiff in the March 7,
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2011 complaint. (Complaint at ¶ 19.)
alleges
that
Defendant
Lt.
Fredrickson’s
response
was
Plaintiff also alleges on March
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8, 2011, he received a response from Defendant Captain Taylor, which
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was a “cover or a ruse to silence and punish Plaintiff for his
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successful use of the jail’s grievance system.” (Complaint at ¶ 20.)
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Defendant
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Plaintiff’s grievance that “you requested a written response as to
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your
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Fredrickson responded to your grievance dated March 7, 2011 regarding
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your placement in administrative segregation and provided you with a
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reason, thus satisfying Plaintiff’s request for a written response.
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Id.
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decision to suspend Plaintiff’s grievance rights “based on your
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repeated grievances regarding the same issue.”
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privilege was suspended. (Id.)
Captain
placement
in
Taylor
allegedly
administrative
asserted
in
segregation”.
his
response
Defendant
to
Lt.
Defendant Captain Taylor then stated in his March 8, 2011
Plaintiff’s grievance
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Plaintiff alleges a violation of his rights under the First
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Amendment by jail officials who retaliate against him by using the
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grievance procedure to silence and punish Plaintiff for his successful
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use of the grievance system to improve jail conditions. (Complaint at
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p. 5.)
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STANDARD OF REVIEW
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Because Plaintiff is seeking to proceed in forma pauperis, the
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Court shall review such a complaint “as soon as practicable after
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docketing.” Pursuant to 28 U.S.C. § 1915(e)(2), the District Court is
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required to dismiss a complaint if the Court finds that the complaint
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(1) is legally frivolous or malicious, (2) fails to state a claim upon
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which relief may be granted, or (3) seeks monetary relief from a
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defendant immune from such relief. 28 U.S.C. § 1915(e)(2)(B) (re: all
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in forma pauperis complaints).
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A complaint may also be dismissed for lack of subject matter
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jurisdiction, pursuant to F.R.Civ.P. 12(b)(1).
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490
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decision)(patently insubstantial complaint may be dismissed under Rule
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12(b)(1) for lack of subject matter jurisdiction.
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dismissal, a Court must accept as true all allegations and material
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facts and must construe those facts in a light most favorable to the
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plaintiff.
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However, a “court [is not] required to accept as true allegations that
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are merely conclusory, unwarranted deductions of fact, or unreasonable
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inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th
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Cir. 2001).
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conclusion couched as a factual allegation.”
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U.S. ___, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009).
U.S.
319,
327
n.6,
109
S.Ct.
Neitzke v. Williams,
1827
(1989)(unanimous
When considering a
Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).
Nor is a Court “bound to accept as true a legal
Ashcroft v. Iqbal, ___
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“To survive a motion to dismiss, a complaint must contain
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sufficient factual matter, accepted as true, to ‘state a claim to
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relief that is plausible on its face.’” Iqbal, 129 S.Ct. at 1949
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(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct.
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1955 (2007)).
“A claim has facial plausibility when the plaintiff
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pleads factual content that allows the Court to draw the reasonable
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inference that the defendant is liable for the misconduct alleged.”
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Iqbal, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)(citing Twombly,
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550 U.S. at 556.)
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‘probability
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possibility that a defendant acted unlawfully.” (Id.)
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complaint need not include “‘detailed factual allegations,’ ... [a]
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pleading
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recitation of the elements of the cause of action will not do.’”
“The plausibility standard is not akin to a
requirement,’
that
offers
but
‘labels
it
and
asks
for
more
conclusions’
than
or
a
sheer
Although a
‘a
formulaic
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Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555).
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Complaint must contain “factual content that allows the court to draw
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the
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misconduct alleged.”
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pleaded facts do not permit the court to infer more than the mere
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possibility of misconduct, the complaint has alleged - but it has not
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‘show[n]’ - ‘that the pleader is entitled to relief.’” (Id. at 1950
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[quoting Fed.R.Civ.P. 8(a)(2) (internal brackets omitted).
reasonable
inference
that
the
defendant
is
liable
for
The
the
Iqbal, 129 S.Ct. at 1949. “[W]here the well-
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In civil rights cases in which the Plaintiff appears pro se, the
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pleadings must be construed liberally, so as to afford the plaintiff
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the benefit of any doubt as to the potential validity of the claims
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asserted. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623
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(9th Cir. 1988).
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finds that the complaint should be dismissed for failure to state a
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claim, the Court has the discretion to dismiss the complaint with or
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without leave to amend.
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Cir. 2000).
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it is clear that the deficiencies of the complaint cannot be cured by
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amendment. Lopez, 203 F.3d at 1130-31; Cato v. United States, 70 F.3d
If, despite such liberal construction, the Court
Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th
A pro se litigant should be given leave to amend, unless
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1103, 1106 (9th Cir. 1995); Noll v. Carlson, 809 F.2d 1446, 1448 (9th
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Cir. 1987).
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DISCUSSION
For all of the following reasons, the Complaint should be
dismissed with leave to amend.
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A.
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In order to state a claim under section 1983, a plaintiff must
Section 1983 Requirements.
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allege that:
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at the time the complained of acts were committed; and (2) the
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defendants’ conduct deprived plaintiff of rights, privileges, or
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immunities secured by the Constitution or laws of the United States.
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West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250 (1988); Karim-Panahi v.
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Los Angeles Police Dept., 839 F.2d 621, 624 (9th Cir. 1988); Haygood
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v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc), cert.
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denied, 478 U.S. 1020 (1986).
Liability under section 1983 is
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predicated
link
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defendants' actions and the claimed deprivations. See Rizzo v. Goode,
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423 U.S. 362, 372-73, 96 S.Ct. 598 (1976); May v. Enomoto, 633 F.2d
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164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th
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Cir. 1978).
(1) the defendants were acting under color of state law
upon
an
affirmative
or
connection
between
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A person deprives another of a constitutional right,
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where that person “does an affirmative act, participates in
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another’s affirmative acts, or omits to perform an act which
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[that person] is legally required to do that causes the
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deprivation of which complaint is made.” [citation] Indeed,
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the “requisite causal connection can be established not only
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the
1
by
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deprivation, but also by setting in motion a series of acts
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by others which the actor knows or reasonably should know
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would cause others to inflict the constitutional injury.”
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some
kind
of
direct
personal
participation
in
the
Johnson v. Duffy, 588 F.2d at 743-44.
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Plaintiff’s claims against Defendants are in their individual
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capacities.
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claim unless the facts establish the defendant’s personal involvement
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in the constitutional deprivation or a causal connection between the
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defendant’s
wrongful
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deprivation.
See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1984);
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Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978).
An individual defendant is not liable on a civil rights
conduct
and
the
alleged
constitutional
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In order to allege facts sufficient to show a jurisdictional
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basis for imposing liability, see Franklin v. Murphy, 745 F.2d 1221,
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1234 (9th Cir. 1984), Plaintiff must allege facts to show that the
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Defendants proximately caused the deprivation of rights of which
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Plaintiff complains, or that Defendants in a supervisory capacity
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failed to properly train or supervise personnel resulting in the
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alleged deprivation, [that the alleged deprivation resulted from
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official policy or custom for which Defendant was responsible], or
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that Defendant knew of the alleged misconduct and failed to act to
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prevent future misconduct.
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A plaintiff “must allege facts, not simply conclusions, that show
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an individual was personally involved in the deprivation of his civil
26
rights.”
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cert. denied, 525 U.S. 1154, 119 S.Ct. 1058 (1999); see Iqbal, 129
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S.Ct. at 1950 (stating that a complaint must contain more than legal
Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998),
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conclusions to withstand dismissal for failure to state a claim).
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Plaintiff’s allegations regarding interference with his inmate
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appeals may intend to state a due process claim.
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cause of action for deprivation of due process, a plaintiff must first
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establish the existence of a liberty interest for which the protection
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is sought.
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only, it does not confer any substantive right upon the inmates.”
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Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993).
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no constitutional right to an effective grievance or appeal procedure,
In order to state a
“[A prison] grievance procedure is a procedural right
A prisoner has
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and
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administrative appeal process is an insufficient basis in which to
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state a federal civil rights claim against such defendants.
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Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003)(no liberty
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interest in processing of appeals because no entitlement to a specific
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grievance
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relating to Plaintiff’s inmate appeals cannot form a basis for a §1983
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liability.
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right related to processing of his inmate grievances.
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Adams, 855 F.2d 639, 640 (9th Cir. 1988).
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to any particular grievance process, it is impossible for due process
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to have been violated by ignoring or failing to properly process
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grievances.
the
mere
participation
procedure).
Thus,
of
prison
the
officials
alleged
actions
in
of
Plaintiff’s
See also
Defendants
Plaintiff does not have any stand-alone constitutional
See Mann v.
Because there is no right
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Plaintiff also seems to couch his claim regarding the processing
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of inmate appeals in the form of a “retaliation” claim. An action
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taken in retaliation for the exercise of a federally protected right
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is actionable under §1983.
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Cir. 1997); Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995).
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state a viable claim for retaliation and violation of the First
See Hines v. Gomez, 108 F.3d 265, 267 (9th
7
To
1
Amendment in the prison context, a plaintiff must show five basic
2
elements: “(1) an assertion that a state actor took some adverse
3
action against an inmate (2) because of (3) that prisoner’s protected
4
conduct, and that such action (4) chilled the inmates exercise of his
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First Amendment rights, and (5) the action did not reasonably advance
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a legitimate correctional goal.”
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1269 (9th Cir. 2009)(quoting Rhodes v. Robinson, 408 F.3d 559, 567-68
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(9th Cir. 2005)).
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show that his constitutionally protected conduct was a “substantial or
See Brodheim v. Cry, 584 F.3d 1262,
To satisfy the causation element, Plaintiff must
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motivating factor” for the alleged retaliatory action.
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Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97
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S.Ct. 568 (1977).
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retaliatory actions of Defendants caused Plaintiff some injury (see
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Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000)(as amended));
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Rhodes, 408 F.3d at 569.
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pleading or proving the absence of legitimate correctional goals for
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the conduct of which he complains.
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See Mt.
Further, Plaintiff must show that the alleged
Finally, the plaintiff bears the burden of
See Pratt, 65 F.3d at 806.
As shown above, Plaintiff has no substantive right in a grievance
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procedure.
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none exists by adding the name “retaliation” to the claim.
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It
is
Moreover, Plaintiff cannot create a federal right where
now
established
beyond
doubt
that
prisoners
have
a
22
constitutional right of access to the courts.
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U.S. 817, 821, 97 S.Ct. 1491 (1977).
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the courts may arise either from the frustration or hindrance of “a
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litigating opportunity yet to be gained” (forward-looking access
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claim) or from the loss of a meritorious suit that cannot now be tried
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(backward-looking claim).
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412-15, 122 S.Ct. 2179 (2002). However, in order for Plaintiff to
Bounds v. Smith, 430
Claims for denial of access to
See Christopher v. Harbury, 536 U.S. 403,
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establish any denial of access claim, Plaintiff must show that he
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suffered an “actual injury” as a result of the Defendants’ actions.
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see Harbury, 536 U.S. at 415.
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the inmate must demonstrate that official acts or omissions “hindered
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his efforts to pursue [non-frivolous] legal claim.”
6
Hust, 477 F.3d 1070, 1076 (9th Cir. 2007)(quoting Lewis v. Casey, 518
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U.S. 343, 351, 115 S.Ct. 2174 (1996).
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is limited only to cases involving a direct or collateral challenge to
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the conviction or sentence for which a plaintiff is incarcerated, or
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a civil rights action commenced pursuant to 42 U.S.C. §1983 to
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vindicate “basic constitutional rights.”
12
Here, Plaintiff has failed to state an “actual injury.”
“In order to establish actual injury,
Phillips v,.
Moreover, the right of access
See Lewis, 518 U.S. at 354.
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CONCLUSION AND ORDER
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In an abundance of caution, Plaintiff will be afforded an
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opportunity to amend his Complaint to attempt to overcome the defects
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discussed above, and to allege a cognizable constitutional claim
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Accordingly, IT IS HEREBY ORDERED: (1) Plaintiff’s Complaint is
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dismissed with leave to amend; and (2)
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from the date of this memorandum and order within which to file a
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“First Amended Complaint.”
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complete within itself and shall not incorporate by reference and
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//
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//
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//
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//
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//
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//
Plaintiff is granted 30 days
The First Amended Complaint must be
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portion of the original Complaint.
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without leave of the Court.
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set forth in this Memorandum and Order may result in a recommendation
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that this action be dismissed with prejudice.
Plaintiff may not add new parties
Failure to comply with the requirements
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DATED: September 16, 2011
/s/
VICTOR B. KENTON
UNITED STATES MAGISTRATE JUDGE
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