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Brown v. Karlow

September 25, 2008

THORNELL BROWN, PLAINTIFF,
v.
NORMAN KARLOW, DEFENDANT.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CONSPIRACY AND EQUAL PROTECTION CLAIMS (Docs. 1, 8, and 9)

Findings and Recommendations Following Screening of Complaint

I. Procedural History

Plaintiff Thornell Brown ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. §§ 1983 and 1985. Plaintiff filed this action on September 17, 2007. On September 4, 2008, the Court issued an order finding that Plaintiff's complaint states a cognizable claim under section 1983 against Defendant Karlow for retaliation, in violation of the First Amendment, but does not state cognizable conspiracy and equal protection claims. The Court ordered Plaintiff to either file an amended complaint or notify the Court of his willingness to proceed only on the claim found to be cognizable. On September 24, 2008, Plaintiff notified the Court that he does not wish to amend and is willing to proceed on the claim found cognizable. Based on Plaintiff's notice, this Findings and Recommendations now issues.

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

The events at issue in this action occurred at Kern Valley State Prison, where Plaintiff is presently housed. Plaintiff alleges violations of the First and Fourteenth Amendments of the United States Constitution. Plaintiff is seeking a declaratory judgment and monetary damages against Defendant Norman Karlow, a prison law librarian.

Plaintiff's claims arise from an incident on June 28, 2005, during which Plaintiff's legal materials were confiscated and inventoried by Defendant Karlow, and some of the material was withheld. Defendant Karlow issued a Rules Violation Report ("RVR") against Plaintiff for possession of contraband, in violation of prison regulations. (Doc. 1, Comp., Ex. C.) Plaintiff was found guilty of possession of another inmate's legal work and was issued a counseling chrono. (Id.) Plaintiff alleges Defendant Karlow acted in retaliation against him for past litigation and inmate appeals activity, and that Defendant Karlow discriminated against him on the basis of his race. Plaintiff also alleges conspiracy to retaliate against him, under both section 1983 and section 1985.

A. Retaliation

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 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).

Plaintiff's allegations that Defendant Karlow confiscated his legal material and issued an RVR against him because of his past litigation and inmate appeals activities are sufficient to state a claim under section 1983 against Defendant for retaliation. Fed. R. Civ. P. 8(a); Erickson v. Pardus, 127 ...


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