(PC) Fields v. Velasco, No. 1:2007cv01213 - Document 30 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS Recommending that Action Proceed on Retaliation Claim 25 , and IIED and Equitable Relief Claims be DISMISSED, signed by Magistrate Judge Sandra M. Snyder on 7/13/2010, referred to Judge Ishii. Objections to F&R due by 8/16/2010(Marrujo, C)
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(PC) Fields v. Velasco Doc. 30 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 KEVIN E. FIELDS, 10 Plaintiff, 11 12 CASE NO. 1:07-cv-01213-AWI-SMS PC FINDINGS AND RECOMMENDATIONS RECOMMENDING ACTION PROCEED ON RETALIATION CLAIM, AND IIED AND EQUITABLE RELIEF CLAIMS BE DISMISSED v. J. M. VELASCO, et al., 13 Defendants. (Doc. 25) 14 THIRTY-DAY OBJECTION DEADLINE / 15 16 17 Findings and Recommendations Following Screening of Second Amended Complaint I. Procedural History 18 Plaintiff Kevin E. Fields, a state prisoner proceeding pro se and in forma pauperis, filed this 19 civil rights action pursuant to 42 U.S.C. § 1983 on August 21, 2007. Plaintiff filed a first amended 20 complaint as a matter of right on March 27, 2009, and on May 15, 2009, the Court found that 21 Plaintiff’s amended complaint stated a cognizable claim for relief against Defendant Velasco but 22 stated no claims against the other three defendants. The Court dismissed the amended complaint, 23 with leave to amend, and notified Plaintiff that he had the option of proceeding on the cognizable 24 claim in the amended complaint. After initially opting not to amend and to proceed on his 25 cognizable claim, Plaintiff filed a second amended complaint on June 10, 2009. 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). The 1 Dockets.Justia.com 1 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 2 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 3 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 4 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 5 dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a 6 claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 7 A complaint must contain “a short and plain statement of the claim showing that the pleader 8 is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 9 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 10 do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. 11 Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth “sufficient 12 factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” Iqbal, 129 S.Ct. at 13 1949 (quoting Twombly, 550 U.S. at 555). Facial plausibility demands more than the mere 14 possibility that a defendant committed misconduct, Iqbal at 1950, and while factual allegations are 15 accepted as true, legal conclusion are not, id. at 1949. 16 III. Plaintiff’s Claims 17 Plaintiff, who is housed at California State Prison-Corcoran, brings this action against 18 Correctional Officer J. M. Velasco and Correctional Sergeant L. Phillips. Plaintiff alleges that 19 Defendants retaliated against him in violation of the First Amendment of the United States 20 Constitution, and committed the tort of intentional infliction of emotional distress under California 21 law. Plaintiff seeks damages, declaratory relief, and injunctive relief. 22 A. 23 Allegations of retaliation against a prisoner’s First Amendment rights to speech or to petition 24 the government may support a section 1983 claim. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 25 1985); also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 26 802, 807 (9th Cir. 1995). “Within the prison context, a viable claim of First Amendment retaliation 27 entails five basic elements: (1) An assertion that a state actor took some adverse action against an 28 inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the Retaliation Claim 2 1 inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a 2 legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). 3 Plaintiff alleges that on June 18, 2004, in retaliation against him for making verbal and 4 written complaints against prison staff and for filing lawsuits against prison staff, Defendant Velasco 5 entered Plaintiff’s cell while he was on the exercise yard; broke the volume and main menu buttons 6 on his television; took his unaltered cable; and removed the manilla envelopes containing his legal 7 material from his locker, confiscated the declarations, and mixed the rest of the material up, leaving 8 it strewn on his bunk. 9 After his verbal requests to speak with the unit sergeant failed, Plaintiff withheld his dinner 10 tray that evening in order to cause a sergeant to come to his cell. When Defendant Phillips arrived, 11 Plaintiff complained about Defendant Velasco’s action and demanded that his declarations and 12 unaltered cable be returned. Defendant Phillips refused and placed Plaintiff on paper tray status for 13 thirty days as punishment for withholding his dinner tray. The next day, Defendant Velasco prepared 14 Plaintiff’s paper dinner tray and gave Plaintiff small portions of each food item. Plaintiff alleges that 15 Defendant Phillips placed him on paper tray status and Defendant Velasco gave him reduced food 16 portions to retaliate against him for his complaints and lawsuits against prison staff. 17 18 These allegations are sufficient to support a claim for damages against Defendants Velasco and Phillips for retaliation. 19 B. 20 Plaintiff also alleges a claim for intentional infliction of emotional distress (IIED) against 21 Defendants Velasco and Phillips for failing to protect him from one another, and for retaliating 22 against him as set forth in subsection A. IIED Claim 23 “Under California law, the elements of intentional infliction of emotional distress are: (1) 24 extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard 25 of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme 26 emotional distress; and (3) actual and proximate causation of the emotional distress by the 27 defendant’s outrageous conduct.” Simo v. Union of Needletrades, Industrial & Textile Employees, 28 322 F.3d 602, 621-22 (9th Cir. 2003) (citing to Christensen v. Superior Court, 54 Cal.3d 868, 903 3 1 (1991)). Conduct is “outrageous if it is ‘so extreme as to exceed all bounds of that usually tolerated 2 in a civilized community.’” Simo, 322 F.3d at 622 (quoting Saridakis v. United Airlines, 166 F.3d 3 1272, 1278 (9th Cir. 1999)). 4 Plaintiff’s allegations do not support a claim for IIED. Plaintiff was not present during the 5 search of his cell by Defendant Velasco and he is therefore precluded from claiming IIED arising 6 from that incident. Simo at 622 (citing Sabow v. United States, 93 F.3d 1445, 1454-55 (9th Cir. 7 1996)). Further, searching Plaintiff’s cell, damaging and/or confiscating personal property, and 8 leaving things astray; placing Plaintiff on paper tray status for thirty days; and giving Plaintiff 9 reduced food portions on one occasion are simply not instances of conduct which rose to the level 10 of extreme and outrageous. Id. Plaintiff’s IIED claim fails as a matter of law and the Court 11 recommends it be dismissed, with prejudice. 12 C. 13 Finally, in addition to damages, Plaintiff seeks a declaration and an injunction prohibiting 14 Claims for Equitable Relief Defendants and all other prison officials from retaliating against inmates for complaining. 15 “‘A case or controversy exists justifying declaratory relief only when the challenged 16 government activity is not contingent, has not evaporated or disappeared, and, by its continuing and 17 brooding presence, casts what may well be a substantial adverse effect on the interests of the 18 petitioning parties.’” Feldman v. Bomar, 518 F.3d 637, 642 (9th Cir. 2008) (quoting Headwaters, 19 Inc. v. Bureau of Land Management, Medford Dist., 893 F.2d 1012, 1015 (9th Cir. 1989) (internal 20 quotations and citation omitted)). “Declaratory relief should be denied when it will neither serve a 21 useful purpose in clarifying and settling the legal relations in issue nor terminate the proceedings and 22 afford relief from the uncertainty and controversy faced by the parties.” U.S. v. State of Wash., 759 23 F.2d 1353, 1357 (9th Cir. 1985) (citations omitted). The governmental conduct at issue in this action 24 occurred in 2004, and Plaintiff’s remedy is damages should he prevail on his claim that his 25 constitutional rights were violated. The Court recommends dismissal of the declaratory relief claim. 26 In addition to declaratory relief, Plaintiff seeks an injunction prohibiting retaliation against 27 him and other inmates for making complaints. “[T]hose who seek to invoke the jurisdiction of the 28 federal courts must satisfy the threshold requirement imposed by Article III of the Constitution by 4 1 alleging an actual case or controversy.” City of Los Angeles v. Lyons, 461 U.S. 95, 101, 103 S.Ct. 2 1660, 1665 (1983) (citations omitted); Jones v. City of Los Angeles, 444 F.3d 1118, 1126 (9th Cir. 3 2006). “Abstract injury is not enough.” Lyons, 461 U.S. at 101, 103 S.Ct. at 1665. “[P]laintiff must 4 show that he has sustained or is immediately in danger of sustaining some direct injury as the result 5 of the challenged official conduct and the injury or threat of injury must be both real and immediate, 6 not conjectural or hypothetical.” Id. (internal quotations and citations omitted). “The key issue is 7 whether the plaintiff is ‘likely to suffer future injury.’” Jones, 444 F.3d at 1126 (quoting Lyons at 8 105, 1667). 9 In addition, any award of equitable relief is governed by the Prison Litigation Reform Act, 10 which provides in relevant part, “Prospective relief in any civil action with respect to prison 11 conditions shall extend no further than necessary to correct the violation of the Federal right of a 12 particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless 13 the court finds that such relief is narrowly drawn, extends no further than necessary to correct the 14 violation of the Federal right, and is the least intrusive means necessary to correct the violation of 15 the Federal right.” 18 U.S.C. § 3626(a)(1)(A). 16 This action is proceeding on a claim arising from events which occurred in 2004. The past 17 actions of Defendants form the case or controversy in this action. The Court has no jurisdiction to 18 issue an order aimed at remedying future, unrelated actions which might result from the pursuit of 19 complaints against prison staff. The Court recommends dismissal of this claim for relief. 20 IV. Conclusion and Recommendation 21 Plaintiff’s second amended complaint states a cognizable damages claim against Defendants 22 Velasco and Phillips for retaliation in violation of the First Amendment. However, Plaintiff fails to 23 state a cognizable IIED claim or a cognizable claim for equitable relief. Because Plaintiff was 24 previously given the opportunity to amend and because the deficiencies identified are not capable 25 of being cured through amendment, the Court recommends that Plaintiff’s non-cognizable claims 26 be dismissed from this action. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Noll v. 27 Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). 28 /// 5 1 Based on the foregoing, it is HEREBY RECOMMENDED that: 2 1. 3 This action proceed on Plaintiff’s second amended complaint, filed June 10, 2009, against Defendants Velasco and Phillips for retaliation; and 4 2. 5 Plaintiff’s IIED claim and claim for equitable relief be dismissed for failure to state a claim. 6 These Findings and Recommendations will be submitted to the United States District Judge 7 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) 8 days after being served with these Findings and Recommendations, Plaintiff may file written 9 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 10 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 11 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 12 1153 (9th Cir. 1991). 13 14 IT IS SO ORDERED. 15 Dated: icido3 July 13, 2010 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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