(PC) Florence v. Kernan et al, No. 1:2018cv01045 - Document 21 (E.D. Cal. 2019)
Court Description: ORDER granting Motion for Extension of Time to file Second Amended Complaint nunc pro tunc 17 . ORDER for Plaintiff's Lodged Second Amended Complaint to be filed and renamed "Third Amended Complaint" 18 . FINDINGS and RECOMMENDATI ON to dismiss for failure to state a claim and to deny Motion for Temporary Restraining Order 15 . Signed by Magistrate Judge Jennifer L. Thurston on 2/8/2019. Referred to Judge Anthony W. Ishii; Objections to F&R'S due within 21-Days. (Lundstrom, T)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID FLORENCE, 12 13 14 15 16 17 18 Plaintiff, v. Case No. 1:18-cv-01045-AWI-JLT (PC) ORDER GRANTING MOTION FOR EXTENSION OF TIME TO FILE SECOND AMENDED COMPLAINT NUNC PRO TUNC (Doc. 17) S. KERNAN, et al., Defendants. ORDER FOR PLAINTIFF’S LODGED SECOND AMENDED COMPLAINT TO BE FILED AND RENAMED “THIRD AMENDED COMPLAINT” (Doc. 18) FINDINGS AND RECOMMENDATION TO DISMISS FOR FAILURE TO STATE A CLAIM AND TO DENY MOTION FOR TEMPORARY RESTRAINING ORDER (Doc. 15) 19 21-DAY DEADLINE 20 21 22 23 24 25 26 27 28 The Court screened Plaintiff’s First Amended Complaint and found it did not comply with the Federal Rules of Civil Procedure. (Doc. 13.) The Court granted leave to file a second amended complaint and directed Plaintiff to choose which claims he would pursue in this action. (Id., pp. 4-5.) Plaintiff filed a second amended complaint on October 9, 2019. (Doc. 16.) Then, on October 22, 2018, Plaintiff filed another document titled as a second amended complaint which was lodged (Doc. 17) and a motion for leave to file it late (Doc. 18). The Court advised Plaintiff that an amended complaint supersedes prior versions. (Doc. 13, p. 14 (citing Lacey v. Maricopa County, Nos. 09-15806, 09-15703, 2012 WL 3711591, at *1 1 1 n.1 (9th Cir. Aug. 29, 2012) (en banc).) Accordingly, Plaintiff’s motion for leave to file his 2 amended complaint late is GRANTED and the document lodged as a second amended complaint 3 (Doc. 18) will be filed, renamed as Plaintiff’s “Third Amended Complaint,” and screened. All of 4 Plaintiff’s claims in the TAC are premised on revocation of his conjugal, overnight Family 5 Visiting Privileges (FVP) in 2017. Plaintiff does not have a right to FVP and none of his claims 6 thereon are cognizable. Thus, this action should be DISMISSED. 7 A. 8 The Court is required to screen complaints brought by prisoners seeking relief against a Screening Requirement 9 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 10 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 11 frivolous, malicious, fail to state a claim upon which relief may be granted, or that seek monetary 12 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2); 28 U.S.C. 13 § 1915(e)(2)(B)(i)-(iii). A complaint will be dismissed if it lacks a cognizable legal theory or 14 fails to allege sufficient facts under a cognizable legal theory. See Balistreri v. Pacifica Police 15 Department, 901 F.2d 696, 699 (9th Cir. 1990). 16 17 B. Pleading Requirements 1. Federal Rule of Civil Procedure 8(a) 18 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 19 exceptions,” none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 20 U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). A complaint must contain “a short and plain 21 statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. Pro. 8(a). 22 “Such a statement must simply give the defendant fair notice of what the plaintiff’s claim is and 23 the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512. 24 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 25 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 26 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 27 Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim that is 28 plausible on its face.’” Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual 2 1 allegations are accepted as true, but legal conclusions are not. Iqbal, at 678; see also Moss v. U.S. 2 Secret Service, 572 F.3d 962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557. 3 While “plaintiffs [now] face a higher burden of pleadings facts . . . ,” Al-Kidd v. Ashcroft, 4 580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally 5 and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 6 However, “the liberal pleading standard . . . applies only to a plaintiff’s factual allegations,” 7 Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989), “a liberal interpretation of a civil rights 8 complaint may not supply essential elements of the claim that were not initially pled,” Bruns v. 9 Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents, 10 673 F.2d 266, 268 (9th Cir. 1982), and courts are not required to indulge unwarranted inferences, 11 Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and 12 citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, 13 and “facts that are ‘merely consistent with’ a defendant’s liability” fall short of satisfying the 14 plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. Plaintiff must identify 15 specific facts supporting the existence of substantively plausible claims for relief, Johnson v. City 16 of Shelby, __ U.S. __, 135 S.Ct. 346, 347 (2014) (per curiam) (citation omitted). 17 C. 18 Plaintiff names CDCR Secretary S. Kernan, Director K. Allison, CCII B. McKinney, The Third Amended Complaint 19 Associate Warden B. Cates, and Chief Deputy Warden B. Kibler as Defendants. Plaintiff seeks 20 monetary and declaratory relief based on a 2017 decision which denied/revoked Plaintiff’s FVP. 21 Plaintiff alleges that, on August 9, 2017, when Plaintiff returned from being out-to-court, 22 CCII McKinney and a CCI (not named as a defendant) filed a CDC-128-G Chrono finding 23 Plaintiff ineligible for FVP under Title 15 of the California Code of Regulations section 24 3177(b)(1) since one of the victims of Plaintiff’s crimes was a minor. (Doc. 18, p. 4.) Plaintiff 25 received another CDC-128-G Chrono, dated November 1, 2017, from CCII McKiney and AW B. 26 Cates, finding that on August 9, 2017, Plaintiff appeared before the UCC and was denied FVP 27 due to a review of Plaintiff’s June 21, 1995 Probation Officer Report (POR). (Id.) 28 The POR stated that “Plaintiff and Co-defendant fired approximately 30 rounds into a 3 1 crowd in front of a house, two were killed, including a two-year-old baby and three others 2 injured. Per CCR Title 15 3177(b)(1) family visits shall not be permitted to inmates convicted of 3 a violent offense involving a minor or family member or any sex offense, which includes but is 4 not limited to the following Penal Code Section 187.” (Id.) 5 Plaintiff thereafter filed an inmate appeal against all five Defendants for discriminating 6 against him by revoking/denying him FVP while other inmates, who Plaintiff alleges are similarly 7 situated since serving life and LWOP sentences for first degree murder, are allowed to have FVP. 8 (Id.) Defendants CCII McKiney and AW Cates denied Plaintiff’s appeal based on their 9 interpretation of 25 different California Penal Code sections. Plaintiff told them that none of 10 those sections applied to him; rather they “referred to inmates who were convicted of child 11 molestation, rape, sodomy, and then killing a minor.” (Id., at p. 5.) Plaintiff told them that, “prior 12 to CDC taking the family visits from lifer’s in 1997, Plaintiff was able to go on family visits and 13 regular visits with minors and Plaintiff was Close-A Custody, which is one of the most restrictive 14 custody groups in General Population and there was never a problem.” (Id.) 15 On November 16, 2017, Plaintiff received the Second Level Review on his inmate appeal 16 from CDW B. Kibler which indicated that all of Plaintiff’s documentation had been considered 17 and reviewed in accordance with departmental policies and institutional procedures. (Doc. 18, p. 18 5.) It noted the same information from the June 21, 1995 POR as reflected in the November 1, 19 2017 Classification Committee Chrono (CCC). (Id., at p. 6.) The SLR denied Plaintiff’s appeal 20 based on a finding that § 3177(b)(1) prohibits FVP for inmates convicted of a violent offense 21 involving a minor or family member or any sex offense, which includes but is not limited to Penal 22 Code 187. (Id.) 23 Plaintiff pursued his inmate appeal to the Third Level Review and received that decision 24 on April 16, 2018. (Doc. 18, p. 6.) The TLR decision stated that FVP is a privilege, as such 25 participation depends upon the degree of the threat presented to the visitors involved. (Id.) The 26 TLR concurred with the denial of Plaintiff’s FVP as examined in the SLR. Plaintiff’s request for 27 FVP was denied based on the circumstances of Plaintiff’s crime, noting that one of his victims 28 was a minor. (Id.) 4 1 Plaintiff alleges that because he is serving a sentence of LWOP, it was unnecessary for 2 staff to review his case to ascertain whether he was eligible for FVP. However, Plaintiff alleges 3 that recent changes in CDC FVP policy allows LWOP inmates to have FVP if they meet certain 4 criteria. (Id., at p. 4.) Plaintiff further alleges that in 2007, CSP-Sac UCC placed restrictions on Plaintiff’s 5 6 contact visits with minors, but in 2010, the ICC committee did an “extensive background 7 investigation into the factors of Plaintiff’s conviction and contact visits with minors and 8 concluded he was not a threat and restored his contact visits with minors.” (Doc. 18, p. 5.) 9 Plaintiff states that, in 2017, CDC changed their policy on FVP which allowed inmates with life 10 and LWOP sentences to have FVP. But Plaintiff alleges it should not restrict his ability to have 11 FVP because the change was “implemented to restrict child molesters from being around kids.” 12 (Id.) 13 Plaintiff alleges that the denial/revocation of his FVP violated his rights to Equal 14 Protection under the Fourteenth Amendment and constituted retaliation under the First 15 Amendment. As discussed in detail below, Plaintiff does not have a cognizable right to FVP. 16 Hence, Plaintiff is unable to state a cognizable equal protection or retaliation claim based on 17 denial/revocation thereof such that this action should be dismissed. 18 19 20 D. Claims for Relief 1. Visitation In Overton v. Bazzetta, the Supreme Court considered a substantive due process claim 21 challenging various prison regulations restricting prisoners’ rights to receive visits from family 22 members. 539 U.S. 126, 129-30 (2003). The Court’s own hesitation in articulating the existence 23 and nature of an inmate’s right to receive visits from family members while in prison is 24 instructive. Dunn v. Castro, 621 F.3d 1196, 1202 (9th Cir. 2010). The Court acknowledged that 25 “outside the prison context, there is some discussion in our cases of a right to maintain certain 26 familial relationships, including association among members of an immediate family and 27 association between grandchildren and grandparents.” Overton at 131. The Court, however, 28 declined to “attempt to explore or define the asserted right of association at any length or 5 1 determine the extent to which it survives incarceration.” Id. at 132. At the same time, the Court 2 observed that “[a]n inmate does not retain rights inconsistent with proper incarceration,” and that 3 “freedom of association is among the rights least compatible with incarceration.” Id. at 131 4 (emphasis added). Further, despite how “severe[ly]” the prison regulations at issue in Overton 5 restricted the prisoners’ right to receive visits from their own family, including minors, id. at 134, 6 the Court upheld the constitutionality of the challenged regulations, id. at 136-37. The denial of 7 prison access to a particular visitor “is well within the terms of confinement ordinarily 8 contemplated by a prison sentence.” Hewitt v. Helms, 459 U.S. 460, 468 (1983) abrogated in part 9 on other grounds by Sandin v. Conner, 515 U.S. 472 (1995). 10 The Court’s failure to recognize an absolute right to receive visitors in prison, to a certain 11 extent, necessarily flows from the nature of prison, the goals it serves, and the deference owed to 12 prison administrators in effectuating those goals. Dunn v. Castro, 621 F.3d 1196, 1203, 1205 13 (9th Cir. 2010). Prison serves the important purpose of deterring crime. Pell v. Procunier, 417 14 U.S. 817, 822 (1974). “The premise is that by confining criminal offenders in a facility where 15 they are isolated from the rest of society, a condition that most people presumably find 16 undesirable, they and others will be deterred from committing additional criminal offenses.” Id.; 17 see also Rhodes v. Chapman, 452 U.S. 337, 352 (1981) (identifying the deterrence of future crime 18 among the “goals of the penal function in the criminal justice system”). 19 To that end, “[l]awful incarceration brings about the necessary withdrawal or limitation of 20 many privileges and rights,” Pell, 417 U.S. at 822 (internal quotation marks omitted) (alteration 21 in original), including the right to associate with individuals with whom an inmate would 22 otherwise enjoy close personal and professional relations outside of the prison context. See Jones 23 v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 125-26 (1977) (“Perhaps the most 24 obvious of the First Amendment rights that are necessarily curtailed by confinement are those 25 associational rights that the First Amendment protects outside of prison walls. The concept of 26 incarceration itself entails a restriction on the freedom of inmates to associate with those outside 27 of the penal institution.”). In Overton, the Court reiterated the “substantial deference [courts must 28 accord] to the professional judgment of prison administrators, who bear a significant 6 1 responsibility for defining the legitimate goals of a corrections system and for determining the 2 most appropriate means to accomplish them.” 539 U.S. at 132. 3 The Ninth Circuit has declined to recognize a prisoner’s constitutional right to receive 4 visits, stating that “it is well-settled that prisoners have no constitutional right while incarcerated 5 to contact visits.” Gerber v. Hickman, 291 F.3d 617, 621 (9th Cir. 2002) (en banc); see also 6 Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996) (affirming dismissal of prisoner’s claim 7 challenging regulation that denied him visits from persons other than his immediate family); 8 Barnett v. Centoni, 31 F.3d 813, 817 (9th Cir. 1994) (per curiam) (holding that prisoners do not 9 have a constitutional right to contact visitation privileges); Toussaint v. McCarthy, 801 F.2d 10 1080, 1114 (9th Cir.1986) (“To the extent that denial of contact visitation is restrictive and even 11 harsh, it is part of the penalty that criminals pay for their offenses against society.”), abrogated in 12 part on other grounds by Sandin. Thus, Plaintiff has no right to FVP. 13 14 2. Equal Protection The Equal Protection Clause requires that persons who are similarly situated be treated 15 alike. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439(1985); Hartmann v. 16 California Dep’t of Corr. & Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013); Furnace v. Sullivan, 17 705 F.3d 1021, 1030 (9th Cir. 2013); Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008). To 18 state a claim, Plaintiff must show that Defendants intentionally discriminated against him based 19 on his membership in a protected class. Hartmann, 707 F.3d at 1123; Furnace, 705 F.3d at 1030; 20 Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003); Thornton v. City of St. Helens, 425 F.3d 21 1158, 1166-67 (9th Cir. 2005); Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001). 22 Plaintiff fails to state any allegations to show that he was discriminated against based on his 23 membership in a protected class. 24 If the action in question does not involve a suspect classification, a plaintiff may establish 25 an equal protection claim by showing that similarly situated individuals were intentionally treated 26 differently without a rational relationship to a legitimate state purpose. Engquist v. Oregon 27 Department of Agriculture, 553 U.S. 591, 601-02 (2008); Village of Willowbrook v. Olech, 528 28 U.S. 562, 564 (2000); San Antonio School District v. Rodriguez, 411 U.S. 1 (1972); Lazy Y Ranch 7 1 Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008); North Pacifica LLC v. City of Pacifica, 526 2 F.3d 478, 486 (9th Cir. 2008), see also Squaw Valley Development Co. v. Goldberg, 375 F.3d 3 936, 944 (9th Cir.2004); Sea River Mar. Fin. Holdings, Inc. v. Mineta, 309 F.3d 662, 679 (9th 4 Cir. 2002). To state an equal protection claim under this theory, a plaintiff must allege that: (1) 5 the plaintiff is a member of an identifiable class; (2) the plaintiff was intentionally treated 6 differently from others similarly situated; and (3) there is no rational basis for the difference in 7 treatment. Village of Willowbrook, 528 U.S. at 564. Further, to establish a violation of the Equal 8 Protection Clause, the prisoner must present evidence of discriminatory intent. See Washington v. 9 Davis, 426 U.S. 229, 239-240 (1976); Serrano, 345 F.3d at 1081-82; Freeman v. Arpio, 125 F.3d 10 11 732, 737 (9th Cir. 1997). Plaintiff alleges that “other inmates who are serving life and LWOP sentences for first 12 degree murder, . . . have conjugal, overnight visits.” (Doc. 18, pp. 4-5.) Plaintiff contends that 13 those inmates are similarly situated to him to meet the second element. However, “[a]n equal 14 protection claim will not lie by conflating all persons not injured into a preferred class receiving 15 better treatment than the plaintiff,” Thornton v. City of St. Helens, 425 F.3d 1158, 1166-67 (9th 16 Cir. 2005) (quotations and citation omitted), which is all that Plaintiff has alleged here. 17 Furthermore, just because other inmates have the same or similar sentence, does not mean that 18 their convictions are for similar crimes. Plaintiff’s premise, that all inmates serving life and 19 LWOP sentences are similarly situated to him, is not facially plausible since there are numerous 20 violent crimes for which a life or LWOP sentence may be imposed that do not involve minors, 21 family members, or sex offenses. 22 Additionally, though Plaintiff’s allegations attempt to show that there is no rational basis 23 for the prison denying him conjugal visits, while others serving life or LWOP get this privilege, 24 the Supreme Court has found a valid rational connection between an outright ban on contact visits 25 and internal security of a detention facility (let alone a ban that applies only to prison inmates 26 convicted of certain violent crimes involving a minor, a family member, or a sex offense as 27 addressed here) “is too obvious to warrant extended discussion.” Block v. Rutherford, 468 U.S. 28 576, 586-87 (1984). Further, when addressing whether prison officials’ acts bear a rational 8 1 relation to a legitimate penological interest, “substantial deference” must be accorded to the 2 professional judgment of administrators, “who bear a significant responsibility for defining the 3 legitimate goals of a corrections system and for determining the most appropriate means to 4 accomplish them.” Overton v. Bazzetta, 539 U.S. 126, 131-132 (2003) ref Pell, 417 U.S. at 5 826-827; Florence v. Bd. of Chosen Freeholders, 566 U.S. 318, 326 (2012); Thornburgh v. 6 Abbott, 490 U.S. 401, 408 (1989); Hewitt v. Helms, 459 U.S. 460, 467 (1983); Jones v. North 7 Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 126, 128 (1977); Turner, 482 U.S. at 85, 8 89; Block v. Rutherford, 468 U.S. 576, 588 (1984); Bell v. Wolfish, 441 U.S. 520, 562 (1979). 9 “The burden, moreover, is not on the State to prove the validity of prison regulations but on the 10 prisoner to disprove it.” Overton, 539 U.S. at 132; ref Jones,433 U.S. at 128; O’Lone v. Estate of 11 Shabazz, 482 U.S. 342, 350 (1987); Shaw v. Murphy, 532 U.S. 223, 232 (2001). 12 Plaintiff cannot allege any facts to show that the safety and protection of visitors, inmates, 13 and prison personnel is not a legitimate goal for which prison officials should be accorded 14 substantial deference; nor that there is no rational basis for inmates convicted under Penal Code 15 187 where a victim was a minor, a family member, or involved a sex offense to be prohibited 16 from FVP while inmates with similar convictions that did not involve a minor, a family member, 17 or a sex offense are allowed to have FVP. 18 Likewise, Plaintiff’s allegations that there was never a problem “prior to CDC taking the 19 family visits from lifers in 1997, when Plaintiff was able to go on family visits and regular visits 20 with minors and Plaintiff was Closed-A Custody, which is one of the most restrictive custody 21 groups in General Population” do not bear on the legitimacy of the regulations. Though there 22 may have not been a problem with Plaintiff’s prior FVP, this does not show that there wasn’t a 23 problem with other inmates convicted of similar crimes that warranted revoking the privilege for 24 the safety of visitors and for which prison officials should be accorded substantial deference. 25 Finally, Plaintiff’s allegations fail to show any discriminatory intent by any of the Defendants 26 named in this action. See Washington, 426 U.S. at 239-240; Serrano, 345 F.3d at 1081-82; 27 Freeman, 125 F.3d at 737. Thus, Plaintiff’s Equal Protection claim is not cognizable. 28 /// 9 1 2 3. Retaliation The First Amendment protects inmates from retaliation for engaging in protected conduct. 3 A retaliation claim has five elements. Waitson v. Carter, 668 F.3d 1108, 1114-1115 (9th Cir. 4 2012); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir.2009). 5 First, the plaintiff must allege that the retaliated-against conduct is protected. Id. 6 Protected conduct for retaliation claims may but need not be tethered to First Amendment speech 7 or associational freedom issues. Blaisdell v. Frappiea, 729 F.3d 1237, 1242 (9th Cir. 2013). 8 Rather, “‘a claim for retaliation can be based upon the theory that the government imposed a 9 burden on the plaintiff, more generally, because he exercised a constitutional right.’” Blaisdell, 10 729 F.3d at 1242 (quoting Regan v. Taxation with Representation of Washington, 461 U.S. 540, 11 545 (1983)). The filing of an inmate grievance is protected conduct, Rhodes v. Robinson, 408 12 F.3d 559, 568 (9th Cir. 2005), as are the rights to speech and to petition the government, Rizzo v. 13 Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 14 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). Also protected by the First 15 Amendment is the right to pursue civil rights litigation in federal court without retaliation. Silva 16 v. Di Vittorio, 658 F.3d 1090, 1104 (9th Cir. 2011). Even mere threats to file suit, civil or 17 criminal, fall within the purview of the constitutionally protected activities under the First 18 Amendment. Entler v. Gregoire, --- F.3d ---, 2017 WL 4448218, *6 (9th Cir. October 6, 2017) 19 (citing Jones v. Williams, 791 F.3d 1023, 1035-36 (9th Cir. 2015). 20 Second, the plaintiff must show the defendant took adverse action against the plaintiff. 21 Rhodes, at 567. The adverse action need not be a full-fledged independent constitutional 22 violation. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). “[T]he mere threat of harm can be 23 an adverse action. . . .” Brodheim, 584 F.3d at 1270. However, not every allegedly adverse 24 action will be sufficient to support a claim under section 1983 for retaliation. In the prison 25 context, cases in this Circuit addressing First Amendment retaliation claims involve situations 26 where action taken by the defendant was clearly adverse to the plaintiff. See e.g. Rhodes, 408 27 F.3d at 568 (arbitrary confiscation and destruction of property, initiation of a prison transfer, and 28 assault); Bruce v, Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003) (validation as a gang member); Hines 10 1 v. Gomez, 108 F.3d 265, 267(9th Cir. 1997) (issuance of false rules violation and subsequent 2 finding of guilt); Pratt, 65 F.3d at 806 (prison transfer and double-cell status); Valandingham, 3 866 F.2d at 1138 (inmate labeled a snitch and approached by other inmates and threatened); 4 Rizzo, 778 F.2d at 530-32 (reassignment out of vocational class and transfer to a different prison). 5 Third, the plaintiff must allege a causal connection between the first two elements. 6 Waitson, 668 F.3d at 1114. “[A] plaintiff alleging retaliation for the exercise of constitutionally 7 protected rights must initially show that the protected conduct was a ‘substantial’ or ‘motivating’ 8 factor in the defendant’s decision.” Soranno’s Gasco, Inc. v. Morgan, 874 F.2nd 1310, 1314 (9th 9 Cir. 1989) (quoting Mt. Healthy City School Dist. Bd. Of Educ. v. Doyle, 429 U.S. 274, 287 10 (1977)). “Mere speculation that defendants acted out of retaliation is not sufficient.” Wood v. 11 Yordy, 753 F.3d 899, 905 (9th Cir. 2014). Rather, Plaintiff must show either direct evidence of 12 retaliatory motive or at least one of three general types of circumstantial evidence: (1) proximity 13 in time between the protected conduct and the alleged retaliation, (2) expressed opposition to the 14 protected conduct, or (3) other evidence that the reasons proffered by Defendant for the adverse 15 action were false and pretextual. McCollum v. California Department of Corrections and 16 Rehabilitation, 647 F.3d 870, 882 (9th Cir. 2011) (citing Allen v. Iranon, 283 F.3d 1070, 1077 17 (9th Cir. 2002)) (quotation marks omitted). It is understood that direct evidence of improper 18 motive is only rarely available. Watison, 668 F.3d at 1114; Mendocino Environmental Center v. 19 Mendocino County, 192 F.3d 1283, 1302 (9th Cir. 1999). 20 Fourth, the plaintiff must allege that the “official’s acts would chill or silence a person of 21 ordinary firmness from future First Amendment activities.” Robinson, 408 F.3d at 568 (internal 22 quotation marks and emphasis omitted). “[A] plaintiff who fails to allege a chilling effect may 23 still state a claim if he alleges he suffered some other harm,” Brodheim, 584 F.3d at 1269, that is 24 “more than minimal,” Robinson, 408 F.3d at 568 n.11. 25 Fifth, the plaintiff must allege “that the prison authorities’ retaliatory action did not 26 advance legitimate goals of the correctional institution. . . .” Rizzo v. Dawson, 778 F.2d 527, 532 27 (9th Cir.1985). “A plaintiff successfully pleads this element by alleging, in addition to a 28 retaliatory motive, that the defendant’s actions were arbitrary and capricious, or that they were 11 1 unnecessary to the maintenance of order in the institution.” Waitson, 668 F.3d at 1115 2 (quotations and citations omitted). It bears repeating that while Plaintiff need only allege facts 3 sufficient to support a plausible claim for relief, the mere possibility of misconduct is not 4 sufficient, Iqbal, 556 U.S. at 678-79, and the Court is “not required to indulge unwarranted 5 inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation 6 marks and citation omitted). The conduct identified by Plaintiff as retaliatory must have been 7 motivated by his engaging in a protected activity, and the conduct complained of must not have 8 reasonably advanced a legitimate penological goal. Brodheim, 584 F.3d at 1271-72 (citations 9 omitted). Thus, mere allegations that Plaintiff engaged in protected activity, without knowledge 10 resulting in animus by a defendant is insufficient to show that Plaintiff’s protected activity was 11 the motivating factor behind a defendant’s actions. 12 The 2017 revocation and denial of Plaintiff’s FVP is the precipitating event for all of 13 Plaintiff’s claims. However, as discussed previously, Plaintiff was convicted of violations of 14 Penal Code section 187 and one victim was a two-year-old child. Plaintiff’s allegations clearly 15 show that the denial/revocation of his family visits was governed by section 3177. Plaintiff 16 alleges that the review of his file which contained the ROP report of the facts underlying his 17 conviction occurred when Plaintiff returned to the facility after being out to court. (See Doc. 18, 18 p. 20.) Though Plaintiff alleges that there was no need for prison staff to revisit his visitation 19 allowance when he returned from court, the exhibit shows that Plaintiff’s “Annual Review” was 20 also conducted at that time because it had not been “conducted within time constraints based on 21 Administrative error.” (Id.) The August 9, 2018 CCC notes that the review thus “covers 3 22 periods from 11/1/15 thru 10/31/16,” and that Plaintiff’s next annual review was scheduled to 23 occur on November 1, 2017. (Id.) The November 1, 2017 annual review CCC likewise denied 24 Plaintiff’s request for FVP based on section 3177 and Plaintiff’s conviction under Penal Code 187 25 with a minor victim. (Id., at p. 22.) 26 Nothing in the Complaint shows or implies that Defendants reviewed Plaintiff’s file and 27 revoked his FVP out of animus for Plaintiff’s protected activity. Plaintiff had returned to NKSP 28 from being out to court twelve days before the August 9, 2017 CCC issued. But the exhibits 12 1 Plaintiff attached to the Complaint make it clear that Plaintiff’s FVP was revoked based on 2 3177(b)(1) and the circumstances of the crimes for which Plaintiff was. Plaintiff’s contention that 3 his family visits were revoked on August 9, 2017 and reinstatement was denied on November 1, 4 2017 because he had recently returned from court amounts to nothing more than mere speculation 5 which, as stated above, is not sufficient. Wood, 753 F.3d at 905. Similarly, Plaintiff’s allegations 6 do not show “the absence of legitimate correctional goals for the conduct of which he complains.” 7 Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003) (quoting Pratt v. Rowland, 65 F.3d 802, 806 8 (9th Cir. 1995)). And, as previously stated, there is an obvious valid rational connection between 9 bans and restrictions on contact visits and internal security, Block, 468 U.S. at 586-87, and prison 10 officials are entitled to substantial deference in their decisions made for the institutional safety, 11 Overton, 539 U.S.at 131-132. 12 Plaintiff cannot state a cognizable retaliation claim. Revocation and denial of Plaintiff’s 13 FVP was supported by Cal. Code Regs. Title 15, § 3177(b)(1) based on Plaintiff’s conviction of 14 two counts under Penal Code section 187 since one of the victims was a minor, see 15 Superintendent v. Hill, 472 U.S. 445, 455-56 (1985), and because restrictions on FVP serves the 16 legitimate penological purpose of maintaining prison safety and discipline, see Rizzo, 778 F.2d at 17 532. 18 E. 19 On October 9, 2019, Plaintiff filed a motion for temporary restraining order and 20 preliminary injunction seeking an order prohibiting the integration of GP and SNY inmates at 21 NSKP. (Doc. 15.) 22 Temporary Restraining Order and Preliminary Injunction As an initial matter and as previously stated, Plaintiff has not stated a cognizable claim 23 upon which relief may be granted, such that there is no actual case or controversy before the 24 Court at this time, and Court lacks the jurisdiction to issue the order sought by Plaintiff. Summers 25 v. Earth Island Institute, 555 U.S. 488, 493-94 (2009); Stormans, Inc. v. Selecky, 586 F.3d 1109, 26 1119 (9th Cir. 2009); 18 U.S.C. ' 3626(a)(1)(A). If the Court does not have an actual case or 27 controversy before it, it has no power to hear the matter in question. Id. Further, requests for 28 prospective relief are limited by 18 U.S.C. ' 3626 (a)(1)(A) of the Prison Litigation Reform Act, 13 1 which requires that the Court ensure the relief “is narrowly drawn, extends no further than 2 necessary to correct the violation of the Federal Right, and is the least intrusive means necessary 3 to correct the violation of the Federal Right.” Though Plaintiff raises claims based on revocation 4 and denial of FVP in this action, the injunctive relief he seeks relates to integration of GP and 5 SNY inmates on the same yard. Relief for Plaintiff cannot be narrowly drawn as Plaintiff seeks 6 relief that is unrelated to the violations of his rights raised in the Third Amended Complaint. 7 Plaintiff is not precluded from attempting to state cognizable claims in a new action if he 8 believes his civil rights are being violated beyond his pleadings in this action. The issue is not 9 that Plaintiff=s allegations are not serious, or that Plaintiff is not entitled to relief if sought in the 10 proper forum. The seriousness of Plaintiff=s allegations of integrating GP and SNY inmates on 11 the same yard cannot and do not overcome what is a jurisdictional bar. Steel Co., 523 U.S. at 12 103-04 (“[The] triad of injury in fact, causation, and redressability constitutes the core of Article 13 III=s case-or-controversy requirement, and the party invoking federal jurisdiction bears the burden 14 of establishing its existence.”) This action is simply not the proper vehicle for conveyance of the 15 relief Plaintiff seeks.1 16 17 CONCLUSION The Court ORDERS that Plaintiff’s motion for extension of time to file an amended 18 complaint, filed on October 22, 2018 (Doc. 17), is GRANTED nunc pro tunc. The Clerk of the 19 Court is directed to file the document titled as “Second Amended Complaint” (Doc. 18), which 20 was lodged on October 22, 2018, and rename it “Third Amended Complaint.” 21 Plaintiff’s Third Amended Complaint fails to state any cognizable claims. Plaintiff should 22 not be granted leave to amend as the defects in his pleading are not capable of being cured 23 through amendment. Akhtar v. Mesa, 698 F.3d 1202, 1212-13 (9th Cir. 2012). 24 25 Accordingly, the Court RECOMMENDS that this entire action be dismissed with prejudice and that Plaintiff’s motion for temporary restraining order and preliminary injunction, 26 27 28 1 Plaintiff=s motion also fails to make the requisite showing, supported by admissible evidence, to obtain a preliminary injunction. Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20-4 (2008). However, it is unnecessary to reach the merits of Plaintiff=s motions in light of the fact that the jurisdictional issue is fatal to his requests for relief. Summers, 555 U.S. at 493; Mayfield, 599 F.3d at 969. 14 1 filed on October 9, 2018 (Doc. 15) be denied. The Court also RECOMMENDS that Plaintiff=s 2 motion for injunctive relief, filed on October 9, 2018, (Doc. 15), be DENIED for lack of 3 jurisdiction. 4 These Findings and Recommendations will be submitted to the United States District 5 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within 21 6 days after being served with these Findings and Recommendations, Plaintiff may file written 7 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 8 Findings and Recommendations.” Plaintiff’s failure to file objections within the specified time 9 may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 10 Nov. 18, 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 11 12 13 14 IT IS SO ORDERED. Dated: February 8, 2019 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15
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