(PC) Spencer v. Fairfield et al, No. 1:2014cv00754 - Document 16 (E.D. Cal. 2016)
Court Description: FINDINGS and RECOMMENDATIONS recommending that this Action be DISMISSED, With Prejudice, for Failure to State a Claim re 11 First Amended Prisoner Civil Rights Complaint signed by Magistrate Judge Erica P. Grosjean on 2/11/2016. Referred to Judge Drozd. Objections to F&R due within thirty (30) days. (Jessen, A)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 EDWARD B. SPENCER, 12 Plaintiff, 13 14 v. 1:14-cv-00754-DAD-EPG-PC FINDINGS AND RECOMMENDATIONS TO DISMISS CASE, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM (ECF No. 11.) N. FAIRFIELD, et al., 15 Defendants. OBJECTIONS, IF ANY, DUE WITHIN THIRTY DAYS 16 17 18 I. BACKGROUND 19 Edward B. Spencer (“Plaintiff”) is a state prisoner proceeding pro se with this civil 20 rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this 21 action on May 19, 2014. (ECF No. 1.) 22 The Court screened the Complaint under 28 U.S.C. § 1915A and entered an order on 23 January 15, 2015, dismissing the Complaint for failure to state a claim, with leave to amend. 24 (ECF No. 8.) On February 17, 2015, Plaintiff filed the First Amended Complaint, which is 25 now before the Court for screening. (ECF No. 11.) 26 II. SCREENING REQUIREMENT 27 The Court is required to screen complaints brought by prisoners seeking relief against a 28 governmental entity or officer or employee of a governmental entity. 28 U.S.C. ' 1915A(a). 1 1 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 2 legally Afrivolous or malicious,@ that fail to state a claim upon which relief may be granted, or 3 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 4 ' 1915A(b)(1),(2). ANotwithstanding any filing fee, or any portion thereof, that may have been 5 paid, the court shall dismiss the case at any time if the court determines that the action or 6 appeal fails to state a claim upon which relief may be granted.@ 28 U.S.C. ' 1915(e)(2)(B)(ii). 7 A complaint is required to contain Aa short and plain statement of the claim showing 8 that the pleader is entitled to relief.@ Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 9 not required, but A[t]hreadbare recitals of the elements of a cause of action, supported by mere 10 conclusory statements, do not suffice.@ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 11 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff=s allegations are taken 12 as true, Courts Aare not required to indulge unwarranted inferences.@ Doe I v. Wal-Mart Stores, 13 Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 14 Plaintiff must set forth Asufficient factual matter, accepted as true, to >state a claim to relief that 15 is plausible on its face.=@ Iqbal, 556 U.S. at 678. While factual allegations are accepted as true, 16 legal conclusions are not. Id. 17 To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations to 18 state a plausible claim for relief. Id. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 19 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility 20 standard. Id. 21 III. SUMMARY OF FIRST AMENDED COMPLAINT 22 Plaintiff, an inmate in the custody of the California Department of Corrections and 23 Rehabilitation (CDCR) at the California Substance Abuse Treatment Facility at Corcoran 24 (SATF), brings this civil rights action against defendant CDCR officials employed by the 25 CDCR at SATF. Plaintiff names as defendants Correctional Officers Fairfield and Lopez.1 26 Plaintiff claims that he was subjected to retaliation in violation of the First Amendment. 27 1 28 Defendant E. Aguirre was dismissed per Plaintiff’s Voluntary Dismissal under Rule 41. (ECF No. 14.) 2 1 Plaintiff alleges in his First Amended Complaint that Defendants Fairfield and Lopez 2 removed Plaintiff from Building E4-134 to E2-150 because he filed a grievance. Plaintiff 3 states that Defendants did this “to discourage him and other inmates not to file grievances 4 against them.” (ECF No. 11, at 8 ¶9.) He claims that “[t]his removal would chill him and other 5 inmates from engaging in first Amendment Activities,” and “Defendants’ actions did not 6 advance any legitimate penological goal.” (Id.) Plaintiff cites in support that Defendant 7 Fairfield informed his supervisor that he has no problem rehousing Plaintiff back into Building 8 E4 with a cell if one comes available, but then over a year passed without doing so. Plaintiff 9 also claims that Defendant Fairfield said “We have accommodated you enough.” (ECF No. 11, 10 at 9 ¶12.) Plaintiff alleges that the change in cells was adverse because Plaintiff has a chrono 11 for lower tier and lower bunk housing, and other Building E4 cells had inmates who had only 12 one occupant and did not posses a chrono for lower tier and lower bunk. 13 IV. PRIOR SCREENING ORDER 14 The Court2 previously screened an earlier version of Plaintiff’s complaint and dismissed 15 it with leave to amend. (ECF No. 10.) In that order, the Court reviewed the elements of a 16 claim for retaliation in violation of the First Amendment right to speech. It then found that 17 Plaintiff failed to state a claim under that law for the following reasons: 18 Plaintiff concludes that because his cell move was ordered after he filed a grievance, the cell move was taken in retaliation for filing an inmate grievance. Plaintiff alleges no facts that support such a conclusory allegation. Plaintiff has no protected interest in being housed in a particular cell. Should Plaintiff feel that Defendants have somehow put him in danger or harmed him by ignoring his lower tier/lower bunk chrono, he should assert his claim under the Eighth Amendment. Further, Plaintiff has not alleged any facts indicating that any action on the part of Defendants chilled his First Amendment activity. That Defendants made a decision that, in Plaintiff’s view, makes no sense does not subject them to liability for retaliation. This claim must therefore be dismissed. Plaintiff will, however, be granted leave to file an amended complaint. 19 20 21 22 23 24 (ECF No. 8, p. 4-5.) 25 /// 26 /// 27 28 2 The prior screening order was issued by Magistrate Judge Gary Austin. 3 1 2 V. APPLICABLE LAW The Civil Rights Act under which this action was filed provides: 3 7 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 8 42 U.S.C. § 1983. ASection 1983 . . . creates a cause of action for violations of the federal 9 Constitution and laws.@ Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) 10 (internal quotations omitted). ATo the extent that the violation of a state law amounts to the 11 deprivation of a state-created interest that reaches beyond that guaranteed by the federal 12 Constitution, Section 1983 offers no redress.@ Id. 4 5 6 13 Rule 8(a) 14 Under Rule 8(a), a complaint must contain Aa short and plain statement of the claim 15 showing that the pleader is entitled to relief.@ Fed. R. Civ. P. 8(a)(2); see McHenry v. Renne, 16 84 F.3d 1172, 1178 (9th Cir. 1996) (a complaint must make clear “who is being sued, for what 17 relief, and on what theory, with enough detail to guide discovery”). 18 Retaliation 19 Allegations of retaliation against a prisoner’s First Amendment rights to speech or to 20 petition the government may support a 1983 claim. Rizzo v. Dawson, 778 F.2d 5527, 532 (9th 21 Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. 22 Rowland, 65 F.3d 802, 807 (9th Cir. 1995). “Within the prison context, a viable claim of First 23 Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some 24 adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that 25 such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action 26 did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 27 567-68 (9th Cir. 2005); accord Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012); 28 Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). 4 1 VI. ANALYSIS OF FIRST AMENDED COMPLAINT 2 This Court finds that Plaintiff’s First Amended Complaint suffers from the same 3 deficiencies as Plaintiff’s original complaint and thus should be dismissed. Plaintiff does not 4 allege sufficient facts to support the inference that he was moved from one bunk to another in 5 other to quell his speech or in retaliation for filing grievances. Merely being moved after filing 6 a grievance is not enough to establish such an inference. 7 Defendants stated that he was being moved in retaliation. Instead, he alleges that Plaintiff 8 Fairfield said that “We have accommodated you enough.” (ECF No. 11, at 9 ¶12.) That 9 statement does not lead to the inference that the move was in retaliation, and in an effort to 10 Plaintiff does not allege that quell, First Amendment rights. 11 Moreover, Plaintiff does not have a protected interest in a particular cell or type of cell. 12 The prison is entitled to house Plaintiff at either of the cells he listed. Plaintiff does not allege 13 that the other cell was dangerous or harmful. For the same reason, Plaintiff does not allege 14 facts indicating that this retaliation chilled his speech. The facts as alleged do not indicate that 15 Plaintiff would refrain from filing further grievances because his cell was moved. 16 VII. CONCLUSION AND RECOMMENDATIONS 17 The Court finds that Plaintiff=s First Amended Complaint fails to state any cognizable 18 claim upon which relief may be granted under ' 1983. The Court previously granted Plaintiff 19 leave to amend the complaint, with ample guidance by the Court. Plaintiff has now filed two 20 complaints without stating any claims upon which relief may be granted under § 1983. The 21 Court finds that the deficiencies outlined above are not capable of being cured by amendment, 22 and therefore further leave to amend should not be granted. 28 U.S.C. ' 1915(e)(2)(B)(ii); 23 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). 24 Accordingly, based on the foregoing, IT IS HEREBY RECOMMENDED that: 25 1. 26 claim upon which relief may be granted; and 27 28 This action be DISMISSED in its entirety, with prejudice, for failure to state a 2. This dismissal count as a STRIKE pursuant to 28 U.S.C. ' 1915(g). /// 5 1 These Findings and Recommendations will be submitted to the United States District 2 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within 3 thirty (30) days after being served with these Findings and Recommendations, Plaintiff may file 4 written objections with the Court. 5 Magistrate Judge=s Findings and Recommendations.@ Plaintiff is advised that failure to file 6 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 7 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 8 (9th Cir. 1991)). The document should be captioned AObjections to 9 10 11 IT IS SO ORDERED. Dated: February 11, 2016 /s/ UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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