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Harpool v. Beyer

August 11, 2010

GARY L. HARPOOL, PLAINTIFF,
v.
M. BEYER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Plaintiff is a state prisoner proceeding pro se. He seeks relief pursuant to 42 U.S.C. § 1983 and has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.

Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). An initial partial filing fee of $13.68 will be assessed by this order. 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

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).

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.

A complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, No. 07-1015, 2009 WL 1361536 at * 12 (May 18, 2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843 (1969).

Plaintiff names the following as defendants: Correctional Officer (C/O) M. Beyer, C/O Carter, C/O B. Koelling, C/O Seuber, C/O Palwick, C/O Rosario, Correctional Sergeant Fowler, Correctional Lieutenant S. Knerl. Complaint, pp. 1-2. The difficulty in unravelling plaintiff's allegations arises primarily from plaintiff's having failed to provide, as required by Fed. R. Civ. P. 8(a)(2), "a short and plain statement of the claim showing that the pleader is entitled to relief...." His complaint, as best the court can discern after reviewing plaintiff's scattered allegations and his attached exhibits, appears to relate to five separate incidents. One incident arose on April 29, 2009, when plaintiff was placed in administrative segregation (ad seg) and advised that he would receive a CDC-RVR (rules violation report) after plaintiff was ordered by defendant Beyer to get his property and move to another housing unit, despite plaintiff having disabilities under the Americans with Disabilities Act (ADA) and the Chief Medical Officer (CMO) having ordered plaintiff not to lift over 2 pounds. Complaint and exhibits (Ex.), pp. 3-4, 16-26, 28-32, 34-35. Plaintiff maintains he was not delaying a peace officer but merely asserting his "constitutional right" to speak to the C/O's supervisor before being forced to violate his physical limitations pursuant to the ADA. Id., at 4. Plaintiff then recounts how he was listed as a Men's Advisory Council (MAC) member for Building 3 and that the MAC had been informed that Building 6 would be moved to Building 12 and although the MAC produced a list of those inmates volunteering to be moved, somehow C/O's were ordered to put together a "hit list" of inmates who were troublemakers or otherwise "undesirable" which was why plaintiff was ordered to move "without my permission...." Id. Plaintiff goes on to allege that the unwanted move also constituted retaliation for plaintiff's past complaints against defendants Carter and Fowler as well as others plaintiff names whom he has not identified as defendants. Id. Plaintiff complains that at the RVR hearing maintains that he was deprived of a defense. Id., at 5. He notes that he was not assessed a loss of credits because of hearing errors. Id. He claims deprivation of due process and equal protection rights. Id.

The second incident involves plaintiff's having exited his cell on January 3, 2010 for medication whereupon defendant Palwick harassed plaintiff by asking him where he was going with his MAC folder "because you are not allowed to circulate and/or conduct MAC business on the weekends." Complaint, pp. 6, 13. Plaintiff informed defendant Palwick that according to, inter alia, a memo written by Warden Gary Swarthout (not a defendant), that members of the MAC executive body were allowed to circulate and conduct MAC business during open program and were issued special activity cards for that purpose. Id. Defendant Palwick threatened to move him if he persisted and ordered plaintiff to lock up in his cell, in retaliation for, some months earlier, a Captain Cappell (non-defendant) having told defendant Palwick and others that plaintiff could conduct MAC business during open program hours. Id. at 7.

The third incident occurred on February 14, 2010, when plaintiff was paged and told that he must report back to his unit because he was out-of-bounds. Complaint, p. 8. This occurred while plaintiff was conducting official MAC business; when plaintiff showed defendants Koelling and Seuber his MAC special activity card and the warden's January 31, 2010 memorandum, they stated that they did not care about the card and memo and because he was classified A2B and not allowed to participate in any special activity group on the weekends. Id. Plaintiff prepared a report about the incident. Id., at 33, 36.

Plaintiff then backtracks to discuss a similar incident (the fourth one) with defendant Rosario on January 22, 2010. Complaint, pp. 9, 15. He then segues to the fifth and final incident, occurring on March 15, 2010, involving defendant Palwick conducting a cell search (with German shepherds) for drugs and/or cellphones based on alleged information from a confidential informant. Id., at 10. Plaintiff complains of not having had a confidential informant disclosure form issued to him that day, alleges that there are health and safety issues implicated with the use of the dogs (fleas, ticks, etc.) and contends that the source was not credible because plaintiff has not been disciplined for use of drugs and/or cellphones. Id.

Plaintiff sets forth a plethora of allegations involving claims of retaliation but he has not clearly framed a colorable one. Inmates have a right to be free from the filing of false disciplinary charges in retaliation for the exercise of constitutionally protected rights. Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995); Schroeder v. McDonald, 55 F.3d 454, 461 (9th Cir. 1995); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985). The Ninth Circuit treats the right to file a prison grievance as a constitutionally protected First Amendment right. Brodheim v. Cry,*fn1 484 F.3d 1262, 1269 (9th Cir. 2009), citing Rhodes v. Robinson, 408 F.3d 559, 566 (9th Cir. 2005); Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003); see also, Hines v. Gomez, 108 F.3d 265 (9th Cir. 1997); Hines v. Gomez, 853 F. Supp. 329 (N.D. Cal. 1994) (finding that the right to utilize a prison grievance procedure is a constitutionally protected right, cited with approval in Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995)); Graham v. Henderson, 89 F.3d 75 (2nd Cir. 1996) (retaliation for pursing a grievance violates the right to petition government for redress of grievances as guaranteed by the First and Fourteenth Amendments); Jones v. Coughlin, 45 F.3d 677, 679-80 (2nd Cir. 1995) (right not to be subjected to false misconduct charges as retaliation for filing prison grievance); Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989) (filing disciplinary actionable if done in retaliation for filing inmate grievances); Franco v. Kelly, 854 F.2d 584, 589 (2nd Cir. 1988) ("Intentional obstruction of a prisoner's right to seek redress of grievances is precisely the sort of oppression that section 1983 is intended to remedy" (alterations and citation omitted)); Cale v. Johnson, 861 F.2d 943 (6th Cir. 1988) (false disciplinary filed in retaliation for complaint about food actionable).

In order to state a retaliation claim, a plaintiff must plead facts which suggest that retaliation for the exercise of protected conduct was the "substantial" or "motivating" factor behind the defendant's conduct. See Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). The plaintiff must also plead facts which suggest an absence of legitimate correctional goals for the conduct he contends was retaliatory. Pratt at 806 (citing Rizzo at 532). Verbal harassment alone is insufficient to state a claim. See Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987). However, even threats of bodily injury are insufficient to state a claim, because a mere naked threat is not the equivalent of doing the act itself. See Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987). Mere conclusions of hypothetical ...


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