The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT DEFENDANT'S MOTION TO DISMISS BE GRANTED
OBJECTIONS DUE WITHIN 30 DAYS
Plaintiff Lamont Shepard ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On February 16, 2010, Defendant Quillen ("Defendant") filed a motion to dismiss arguing that Plaintiff fails to state a cognizable claim for retaliation under Section 1983. (Doc. #13.) Plaintiff filed an opposition to Defendant's motion to dismiss on June 28, 2010. (Doc. #19.) Defendant filed a reply to Plaintiff's opposition on July 1, 2010. (Doc. #20.) Plaintiff filed another reply to Defendant's reply on July 12, 2010. (Doc. #21.) For the reasons set forth below, the Court will recommend that Defendant's motion to dismiss be granted and that Plaintiff's retaliation claim against Defendant be dismissed for failure to state a claim.
This action proceeds on Plaintiff's May 7, 2009 complaint. (Doc. #1.) Plaintiff's complaint raises claims under Section 1983 for the violation of his rights under the Eighth Amendment and for retaliation against the exercise of his First Amendment rights.
Plaintiff claims that Defendant was a correctional officer at Corcoran State Prison. On July 15, 2008, Defendant called out to Plaintiff while conducting "the afternoon close custody count." (Compl. 5-6, ECF No. 1.*fn1) Plaintiff pointed at his identification card taped to his cell door window in response to Defendant's count. Defendant responded by telling Plaintiff to respond verbally and left. Defendant returned later with another correctional officer. The two officers escorted Plaintiff to the program office. Plaintiff was sent to "the cage" because he refused to talk to Defendant.
Defendant escorted Plaintiff outside and attempted to bend Plaintiff's left arm in a painful manner, despite Plaintiff's protests. When Plaintiff arrived at the program office, Defendant attempted to slam Plaintiff against a wall, but Plaintiff braced himself from the impact with his leg. Defendant attempted to slam Plaintiff into the cage, but Plaintiff braced himself again.
Plaintiff was left in the cage and later told other prison officials about how Defendant had attacked him. Plaintiff claims that lieutenant J. Wise told Plaintiff that he was going to be placed in administrative segregation "for making allegations against my staff." (Compl. 8, ECF No. 1.) Plaintiff claims that Wise placed him in segregation for making complaints about Defendant.
B. Defendant's Motion to Dismiss
Defendant argues that he is entitled to dismissal under Federal Rule of Civil Procedure 12(b)(6) because Plaintiff fails to state a cognizable claim for retaliation. Defendant's motion does not address whether Plaintiff's complaint states a claim under the Eighth Amendment.
Defendant notes that Plaintiff's retaliation claim is premised on the fact that Plaintiff exercised protected First Amendment conduct by making a complaint about Defendant assaulting Plaintiff and that Defendant retaliated by placing Plaintiff in administrative segregation. Defendant argues that Plaintiff's complaint fails to state a cognizable retaliation claim because Plaintiff's complaint indicates that Defendant was not responsible for placing Plaintiff in administrative segregation.
C. Plaintiff's Opposition
Plaintiff argues that he has stated a cognizable claim against Defendant for retaliation. Plaintiff contends that Defendant took an adverse action against Plaintiff because Plaintiff refused to speak to Defendant during the close custody count. Plaintiff claims that Defendant's actions "lead[sic] to more actions that placed Plaintiff in administrative segregation on July 15, 2008." (Plaintiff[sic] Opp'n to Defendants[sic] Mot. for Mot. to Dismiss 3:1-2, ECF No. 19.) Plaintiff also argues ...