(PC) Holland v. Schuyler et al, No. 1:2016cv01271 - Document 26 (E.D. Cal. 2018)

Court Description: ORDER DECLINING TO ADOPT 24 FINDINGS AND RECOMMENDATIONS and ORDER Referring Action to Magistrate Judge for Further Screening signed by District Judge Dale A. Drozd on 11/7/2018. (Jessen, A)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EVERETT HOLLAND, 12 13 14 15 16 No. 1:16-cv-01271-DAD-GSA Plaintiff, v. C. SCHUYLER, et al., ORDER DECLINING TO ADOPT FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM Defendants. (Doc. No. 24) 17 18 Plaintiff Everett Holland is a state prisoner proceeding pro se with this civil rights action 19 pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge 20 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On August 26, 2016, defendants removed this case from Kern County Superior Court. 22 (Doc. No. 1.) On August 22, 2017, the assigned magistrate judge screened the complaint and 23 dismissed it for failure to state a claim with leave to amend. (Doc. No. 13.) On November 20, 24 2017, plaintiff filed his first amended complaint. (Doc. No. 20 (“FAC”).) On February 12, 2018, 25 the magistrate judge screened plaintiff’s FAC and issued findings and recommendations, 26 recommending that this action be dismissed with prejudice due to plaintiff’s failure to state a 27 cognizable § 1983 claim. (Doc. No. 24.) The findings and recommendations were served on 28 plaintiff and contained notice that objections thereto were to be filed within fourteen days. (Id.) 1 1 2 On March 5, 2018, plaintiff filed objections to the findings and recommendations. (Doc. No. 25.) In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this 3 court has conducted a de novo review of this case. Having carefully reviewed the entire file, 4 including plaintiff’s objections, the court declines to adopt the findings and recommendations. 5 In his FAC, plaintiff alleges as follows. On February 1, 2015, plaintiff was placed in 6 administrative segregation by defendant Esmond after plaintiff stated that he did not have 7 information to provide concerning prison officials’ investigation into an assault. (See Doc. No. 8 24 at 3.) To justify plaintiff’s placement in administrative segregation, which was actually 9 motivated by plaintiff’s failure to provide information helpful to prison official’s investigation of 10 an assault, defendant Esmond directed defendant Maciejewski to falsify a CDCR 115 disciplinary 11 charge alleging that plaintiff was discovered with a cut on his hand. (Id.) Plaintiff submitted a 12 Form 22 inmate request notifying prison authorities that the CDCR 115 disciplinary charge was 13 false. (Id.) Plaintiff contacted CDCR ombudsman Karin Ritcher, who confirmed that the 14 documents were falsified and so notified the prison administration. (Id.) Defendant Hunley then 15 served plaintiff with a second CDCR 115 disciplinary charge and threatened him with prosecution 16 if plaintiff went forward with his complaint regarding the false disciplinary charge. (Id.) A third 17 CDCR 115 disciplinary charge was issued to plaintiff, again under false pretext. (Id.) Plaintiff 18 alleges that defendants knew that the disciplinary charges leveled against him were based upon 19 false allegations. (Id.) 20 The findings and recommendations pending before the court concluded that: 1) plaintiff 21 did not state a cognizable due process claim concerning his placement in administrative 22 segregation; 2) plaintiff did not state a cognizable due process claim in connection with the 23 allegedly false prison disciplinary charges; 3) defendants’ threats of prosecution if he pursued his 24 complaints did not rise to the level of a constitutional violation; 4) plaintiff did not state a 25 cognizable conspiracy claim of under § 1983; and 5) given that plaintiff had failed to state any 26 cognizable claim under § 1983, the court should decline to exercise supplemental jurisdiction 27 over plaintiff’s Bane Act (California Civil Code § 52.1) claim. (See Doc. No. 24.) 28 However, neither the pending findings and recommendations (Doc. No. 24) nor the prior 2 1 screening order (Doc. No. 13), addressed whether plaintiff had alleged a cognizable First 2 Amendment retaliation claim. “Within the prison context, a viable claim of First Amendment 3 retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action 4 against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) 5 chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably 6 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 7 2005). Accord Watison v. Carter, 668 F.3d 1108, 1114–15 (9th Cir. 2012); Brodheim v. Cry, 584 8 F.3d 1262, 1269 (9th Cir. 2009). The adverse action need not be an independent constitutional 9 harm, and the “mere threat of harm can be an adverse action.” Watison, 668 F.3d at 1114. 10 In a case where the plaintiff is proceeding pro se, the court has an obligation to construe 11 the pleadings liberally. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is 12 to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less 13 stringent standards than formal pleadings drafted by lawyers.”) (internal quotation marks and 14 citation omitted); Entler v. Gregoire, 872 F.3d 1031, 1038 (9th Cir. 2017). However, the court’s 15 liberal interpretation of a pro se complaint may not supply essential elements of a claim that are 16 not pled. Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992); Ivey v. Bd. of Regents of Univ. of 17 Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 18 Here, plaintiff alleges in his FAC that he was served with additional CDCR 115 prison 19 disciplinary charges after he complained about being placed in administrative segregation without 20 justification. (Doc. No. 24 at 4.) Additionally, in his objections to the pending findings and 21 recommendations, plaintiff again contends that defendants threatened him with criminal 22 prosecution if he persisted with his complaints. (Doc. No. 25 at 3.) Such threats would appear to 23 be of a type that “would have chilled or silenced a person of ordinary firmness by alleging more 24 than minimal harms . . ..” Watison, 668 F.3d at 1115. Further, plaintiff alleged in his FAC that 25 the allegations in the prison disciplinary charges issued against him were false. (Doc. No. 20 at 26 4–6.) It is reasonable to infer from those allegations, if proven, that the bringing of the 27 disciplinary charges against plaintiff did not serve a legitimate penological purpose. 28 ///// 3 1 The undersigned will refer the matter back to the magistrate judge for further screening of 2 the FAC to assess whether plaintiff has states a cognizable claim for retaliation in violation of the 3 First Amendment and, if not, whether plaintiff should be granted further leave to amend to 4 attempt to state such a claim. 5 Accordingly, 6 1. 7 8 recommendations (Doc. No. 24); and 2. 9 10 11 The undersigned declines to adopt the February 12, 2018 findings and This action is referred back to the magistrate judge for further screening in accordance with this order. IT IS SO ORDERED. Dated: November 7, 2018 UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4