IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
May 29, 2009
JOWELL FINLEY, PLAINTIFF,
R. L. GRIGGS, ET AL., DEFENDANTS.
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Presently under consideration is plaintiff's first amended complaint.
The court has reviewed the amended complaint and, for the limited purposes of § 1915A screening, finds that it states the following claims: (1) T. Terronez intercepted plaintiff's letter to the Office of Internal Affairs and a letter to the United States District Court, preventing these letters from being deposited in the mail; (2) R. L. Griggs retaliated against plaintiff for filing a grievance against her by submitting a rules violation report against him; (3) R. L. Griggs, S.W. Brown and J. Nuehring ensured that plaintiff was placed in administrative segregation in retaliation for plaintiff's exercising his right to petition the government for redress; (4) C. Primm, A. Stuart and R. L. Griggs retaliated against plaintiff for writing to the Office of Internal Affairs by depriving him of his personal property while he was in administrative segregation; (5) V. Cuevas retaliated against plaintiff for writing to the Office of Internal Affairs by constantly harassing plaintiff and interfering with plaintiff's ability to use the law library while he was in administrative segregation and by damaging plaintiff's personal property; (6) R. L. Griggs told prisoners that plaintiff was a "snitch," resulting in prisoners threatening harm to plaintiff; (7) C. Orrick and R. L. Griggs retaliated against plaintiff for filing an appeal against Griggs and for refusing to withdraw it by having plaintiff placed into administrative segregation and filing a disciplinary report; (8) R. Terrazas violated plaintiff's right to petition the government by intercepting an appeal concerning the conduct of C. Orrick and R. L. Griggs in order to cover up the retaliatory conduct of C. Orrick and R. L. Griggs; (9) as a result of N. Valdez's unjustified confiscation of plaintiff's legal materials, an action pending in federal court was dismissed because plaintiff was not able to amend his complaint. See 28 U.S.C. § 1915A.
As discussed below, the complaint does not state any claim against D. K. Sisto or a retaliation claim against N. Valdez.
Plaintiff claims that on September 20, 2006, N. Valdez confiscated plaintiff's legal materials in retaliation for a fellow-prisoner's behavior. To state a claim under 42 U.S.C. § 1983, plaintiff must allege an identified defendant deprived plaintiff of a right secured to him by the Constitution or laws of the United States while acting under color of state law. West v. Atkins, 487 U.S. 42, 48-49 (1988). To state a claim for retaliation, plaintiff must allege that on a specified date an individual state actor took adverse action against plaintiff for his engagement in a constitutionally protected activity and the adverse action chilled plaintiff's exercise of his rights and did not reasonably advance a legitimate penological goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); Rizzo v. Dawson, 778 F.2d 527, 531-32 (9th Cir. 1985). Plaintiff's claim fails because he alleges that the adverse action taken against him was because of a different prisoner's conduct which did not involve plaintiff's exercise of a protected right. This claim must be dismissed.
Plaintiff also identifies D. K. Sisto as a defendant. He alleges that D. K. Sisto was the warden at the time of the events giving rise to this action, but makes no allegations against this defendant. Thus, nothing in the complaint suggests that plaintiff could state a claim against Sisto. Therefore, this defendant must be dismissed. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (indigent prisoner proceeding without counsel must be given leave to file amended complaint if it appears that the plaintiff could cure the defect in his claim).
Accordingly, it hereby is ORDERED that:
1. The allegations in the pleading are sufficient at least to state cognizable claims against defendants S.W. Brown, V. Cuevas, R. L. Griggs, J. Nuehring, C. Primm, A. Stuart, T. Terronez and N. Valdez. See 28 U.S.C. § 1915A. With this order the Clerk of the Court shall provide to plaintiff a blank summons, a copy of the pleading filed November 17, 2008, eight USM-285 forms and instructions for service of process on defendants S.W. Brown, V. Cuevas, R. L. Griggs, J. Nuehring, C. Primm, A. Stuart, T. Terronez and N. Valdez. Within 20 days of service of this order plaintiff shall return the attached Notice of Submission of Documents with the completed summons, the completed USM-285 forms, and nine copies of the endorsed November 17, 2008, complaint. The court will transmit them to the United States Marshal for service of process pursuant to Fed. R. Civ. P. 4. Defendants S.W. Brown, V. Cuevas, R. L. Griggs, J. Nuehring, C. Primm, A. Stuart, T. Terronez and N. Valdez will be required to respond to plaintiff's allegations within the deadlines stated in Fed. R. Civ. P. 12(a)(1)
It further is RECOMMENDED that:
1. D. K. Sisto be dismissed from this action; and,
2. Plaintiff's claim that N. Valdez retaliated against him be dismissed for failure to state a claim.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
NOTICE OF SUBMISSION OF DOCUMENTS
Plaintiff hereby submits the following documents in compliance with the court's order filed
1 completed summons form
8 completed forms USM-285
9 copies of the November 17, 2008
First Amended Complaint
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