The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER ADOPTING REPORT AND RECOMMENDATION; OVERRULING OBJECTIONS; GRANTING MOTION TO DISMISS SECOND AMENDED COMPLAINT [doc. # ]; DIRECTING ENTRY OF JUDGMENT
On April 29, 2005, Bobby Joe Daniels ("plaintiff"), a state prisoner proceeding pro se, filed this action alleging violation of his constitutional rights under 42 U.S.C. § 1983. After the Court granted defendants' motion for judgment on the pleadings [doc. #69], plaintiff filed a First Amended Complaint ("FAC"). Defendants filed a motion to dismiss the FAC that the magistrate judge recommended be granted along with leave to amend as to plaintiff's first amendment retaliation claim and his eighth amendment failure to protect claim only. The Court adopted the Report.
Plaintiff then filed a Second Amended Complaint ("SAC") that defendants move to dismiss. The magistrate judge filed a Report with respect to the SAC that recommends dismissal of plaintiff's claims*fn1 with prejudice and without leave to amend.
The district court's role in reviewing a Magistrate Judge's report and recommendation is set forth in 28 U.S.C. § 636(b)(1). Under this statute, "the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.) (en banc), cert. denied, 124 S.Ct. 238 (2003).
First Amendment Retaliation Claim
As noted in the Report, plaintiff asserts that he was subjected to retaliation in the form of a transfer from Calipatria State Prison to Tehachapi prison's segregated housing unit. The retaliation allegedly was in response to plaintiff's attempt to exercise his right to an appeal of a disciplinary hearing.
A stabbing incident occurred at Calipatria State Prison on August 17, 2003. Plaintiff was suspected of involvement in the stabbing and a contraband weapon was found in plaintiff's toilet. He was transferred to administrative segregation during the investigation. A disciplinary hearing was conducted and plaintiff was found guilty of possession of an inmate-manufactured weapon. He was given a 15-month term in a segregated housing unit at6 Tehachapi.
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 First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005)(citing Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000)).
As both the defendants and the magistrate judge noted, plaintiff has failed to allege that his First Amendment rights were chilled. Indeed, plaintiff filed administrative grievances and has litigated this action vigorously with respect to his transfer to segregated housing.
Further, plaintiff has not objected to his transfer as being a legitimate correctional goal under the factual situation here. Although plaintiff disagrees that he was involved in the underlying actions that resulted in his transfer, he does not argue that prison officials permit the transfer of prisoners to more restrictive housing conditions when wrongful activities on the part of inmates are shown after a hearing on the activities has taken place. Plaintiff was found guilty of possessing an inmate-manufactured weapon. Therefore, plaintiff's transfer was made as a legitimate penological goal.
Because plaintiff cannot allege a First Amendment retaliation claim, this claim will be dismissed with prejudice and without leave to further amend the complaint.
2. Eighth Amendment Failure to Protect
Plaintiff alleges his transfer to segregated housing placed him in danger because that particular housing unit at Tehachapi also housed three of plaintiff's documented enemies.
As the magistrate judgment correctly noted, "[p]rison officials have a duty . . . to protect prisoners from violence.'" Farmer v. Brennan, 114 S.Ct. 1970, 1976-77 (1994) (quoting Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir.)), cert. denied, 488 U.S. 823 (1988); Wilson v. Seiter, 501 U.S. 294, 303 (1991); Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). "[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must be both aware of the facts ...