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Quezada v. Gricewich

September 21, 2009

ALVARO QUEZADA, PLAINTIFF,
v.
B. GRICEWICH, 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 (Doc. 34) OBJECTIONS DUE WITHIN 30 DAYS

Findings and Recommendations Following Screening of Third Amended Complaint

Plaintiff Alvaro Quezada ("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 is incarcerated at Kern Valley State Prison in Delano, California ("KVSP"). Plaintiff is suing under section 1983 for the violation of his rights under the First and Fourteenth Amendments. Plaintiff names B. Gricewich, Takahashi, N. Grannis, J. D. Soto, and 3 John Does*fn1 as defendants. For the reasons set forth below, the Court recommends that this action proceed on Plaintiff's Third Amended Complaint against Defendants Takahashi and John Doe #1 for retaliation and that Plaintiff's remaining claims be dismissed without leave to amend.

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).

In determining whether Plaintiff's complaint fails to state a claim, the Court uses the same pleading standard used under Federal Rule of Civil Procedure 8(a). Under 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)(2). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability... 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555).

II. Background

A. Procedural Background

Plaintiff filed the Original Complaint in this action on August 18, 2006. (Doc. #1.) On October 16, 2006, before the Court screened Plaintiff's Original Complaint and on his own initiative, Plaintiff filed his First Amended Complaint. (Doc. #8.) On March 21, 2008, the Court screened Plaintiff's First Amended Complaint. (Doc. #18.) The Court found that Plaintiff's First Amended Complaint failed to state any claims and gave Plaintiff leave to file a Second Amended Complaint that cured the deficiencies in his claims identified by the Court. On November 17, 2008, Plaintiff filed his Second Amended Complaint. (Doc. #26.) On May 1, 2009, the Court screened Plaintiff's Second Amended Complaint. (Doc. #30.) The Court found that Plaintiff's Second Amended Complaint failed to comply with the pleading requirements of Federal Rule of Civil Procedure 8(a), improperly joined Defendants and unrelated claims in a single action, and failed to allege a clear causal connection between each named defendant and the alleged constitutional violations. Plaintiff was also informed of the substantive deficiencies in his First, Eighth, and Fourteenth Amendment claims. Plaintiff was given leave to file a Third Amended Complaint. On July 6, 2009, Plaintiff filed his Third Amended Complaint. (Doc. #34.) This action proceeds on Plaintiff's Third Amended Complaint.

B. Factual Background

Plaintiff claims that Defendants retaliated against him for filing administrative grievances (known as a 602 appeal/grievance), that Defendants interfered with his right of access to the courts, and that Defendants dismissed him from his work assignment without due process.

1. Allegations Against Defendant John Doe #1

Plaintiff claims that John Doe #1 "vengefully had [P]laintiff illegally unassigned from his yard crew work assignment because [P]laintiff had filed a 602 grievance against KVSP officials... [P]laintiff was illegally removed from his paid work assignment in the attempts of deterring

[P]laintiff from engaging or pursuing this appeal grievance." (Compl. 4:3-7.*fn2 ) The grievance at issue is a 602 appeal filed on October 17, 2005, complaining about an "under ground policy" that interfered with Plaintiff's work as a "Level Four Yard Crew Worker". (Compl. 4:11-13.) Plaintiff complained that KVSP officials would send Plaintiff to his cell during work hours so they could run yard for Level One inmates that were illegally housed in a Level Four facility. (Compl. 4:13-16.)

On October 31, 2005, Plaintiff's appeal was screened out by the appeals coordinator, Defendant Gricewich. (Compl. 4:17-19.)

Plaintiff did not participate in his yard crew work assignment between October 16, 2005 and October 31, 2005 due to a prison lockdown. (Compl. 4:26-5:1.) On October 31, 2005, when Plaintiff returned to his work assignment, Plaintiff was informed by his yard crew supervisor that Plaintiff was no longer assigned to his "yard crew paid position". (Compl. 5:1-3.)

On November 21, 2005, Plaintiff filed an appeal in an attempt to discover who had unassigned Plaintiff, and why he was unassigned. (Compl. 5:4-6.) After multiple appeals and inquiries, Plaintiff received a response on June 14, 2006 informing him that he was unassigned from his position on October 21, 2005 -- four days after Plaintiff filed his 602 appeal complaining about being sent to his cell during yard crew work hours. (Compl. 5:10-15.) Plaintiff complains that he was not provided due process prior to being unassigned. (Compl. 5:24-25.) Plaintiff ...


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