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Adams v. Kirby

August 25, 2008

RONALD ADAMS, PLAINTIFF,
v.
KIRBY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS CORRECTIONAL OFFICER

(Doc. 20)

OBJECTION DUE WITHIN THIRTY DAYS

Findings and Recommendations Following Screening of Third Amended Complaint

I. Procedural History

Plaintiff Ronald Adams ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on October 23, 2006. (Doc. 1.) On March 29, 2007, the undersigned dismissed Plaintiff's complaint, with leave to amend. (Doc. 8.) In the order, the Court found that Plaintiff's complaint stated a cognizable claim for relief against Defendants Phillips, Tews, Hayes, Firsich, and Cannon for violation of the Eighth Amendment with respect to the wet, moldy, mildewed mattress Plaintiff was provided with, but did not state any other claims. (Id.)

Plaintiff filed an amended complaint on April 26, 2007, and a second amended complaint on December 3, 2007. (Docs. 9, 14.) On February 27, 2008, the Honorable Arthur L. Alarcon, to whom this action had been reassigned temporarily, issued an order finding that the second amended complaint stated cognizable claims for relief against Phillips and Glenn for retaliation and unconstitutional conditions of confinement arising out of forcing Plaintiff to stand outside nude in freezing weather and forcing Plaintiff to sleep on a moldy mattress. (Doc. 15.) Plaintiff was notified that he may proceed against Defendants Phillips and Glenn or file a third amended complaint. (Id.) Now pending before the Court is Plaintiff's third amended complaint, filed May 27, 2008. (Doc. 20.)

II. Screening Requirement

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

III. Plaintiff's Claims

A. Claims Arising From Denial of Legal Material

Plaintiff is currently housed at California State Prison-Sacramento, and the events at issue in this action occurred at Wasco State Prison. Plaintiff was released from his building on or around December 28, 2005, to go to the law library. Defendant Tinsley, the law librarian and someone with whom Plaintiff has a past history of discord, instructed Plaintiff that he was to pick up legal supplies from his unit or building. Plaintiff alleges that he knew Defendant Tinsley was denying him legal supplies and material to retaliate against him, and Plaintiff left the law library to return to his building. Plaintiff alleges that Defendant Tinsley's actions constituted retaliation and violation of the Eighth Amendment.

1. First Amendment Retaliation Claim

Allegations of retaliation against a prisoner's First Amendment rights to speech or to petition the government may support a section 1983 claim. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). "Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his ...


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