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Branch v. Grannis

April 7, 2009

LOUIS BRANCH, PLAINTIFF,
v.
N. GRANNIS, ET AL., RESPONSE



The opinion of the court was delivered by: William M. Wunderlich United States Magistrate Judge

ORDER REQUIRING PLAINTIFF EITHER TO FILE AMENDED COMPLAINT OR TO NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON CLAIMS FOUND TO BE COGNIZABLE Defendants. (Doc. 1) DUE WITHIN THIRTY DAYS

Plaintiff Louis Branch ("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 is in the custody of the California Department of Corrections and Rehabilitation and was incarcerated at Avenal State Prison ("ASP") when the events in his complaint took place. Plaintiff is suing under section 1983 for the violation of his rights under the First, Eighth and Fourteenth Amendments. Plaintiff names N. Grannis (chief of inmate appeals), K. Mendoza-Powers (warden, ASP), A. Mancinas (classification and parole representative, ASP), D. Umphenour (officer, ASP), and Does 1 and 2 (officers, ASP) as defendants. For the reasons set forth below, Plaintiff will be given the opportunity to file an amended complaint or to proceed only on claims found cognizable in this order.

I. 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)).

II. Background

On July 11, 2004, Plaintiff was attacked and stabbed four times by inmate gang members at ASP. Defendants Umphenour, Doe 1 and Doe 2 were present during the attack but did nothing to prevent or stop the attack.

III. Discussion

A. First Amendment

Plaintiff alleges Defendants retaliated against him in violation of the First Amendment. In the prison context, 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). "[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). An allegation of retaliation against a prisoner's First Amendment right to file a prison grievance is sufficient to support a claim under section 1983. Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003).

Plaintiff has not alleged that any adverse action was taken against him because of his protected conduct. Plaintiff's complaint is insufficient because it fails to explicitly link together all of his factual allegations. Plaintiff alleges that Defendants Mendoza-Powers and Mancinas "allow[ed] five intra-facility transfers 2 weeks prior to the attempted murder in violation of clearly established classification protocols." Plaintiff has not adequately demonstrated how the intra-facility transfers constitute "adverse action". Plaintiff does not allege how the intra-facility transfers were related to the attack on Plaintiff: he does not allege that the transferred inmates were the same inmates that attacked him or that the transfers had otherwise caused the attack against Plaintiff.

Plaintiff alleges that Defendant Grannis retaliated against Plaintiff. Plaintiff alleges that Defendant Grannis "failed to correct the violations and/or at least [] conduct a minimal investigation of [the] grievance/complaint." (Compl. 7.) Plaintiff has not alleged that Defendant Grannis refused to correct the violations or conduct an investigation because of Plaintiff's protected conduct. Therefore, Plaintiff has not alleged a cognizable retaliation claim against Defendant Grannis.

Plaintiff alleges that Defendant Umphenour retaliated against Plaintiff by "vandalizing, destroying, and distributing my legal/personal property to my inmate assailants". (Compl. 6.) Plaintiff has not alleged that Defendant Umphenour did so because of Plaintiff's protected conduct. Therefore, ...


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