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Gregory A. Franklin, Cdcr # E-66269 v. J. Jimenez; Hughey; S. Garcia

January 27, 2012

GREGORY A. FRANKLIN, CDCR # E-66269
PLAINTIFF,
v.
J. JIMENEZ; HUGHEY; S. GARCIA;
T. MOLINA; S. RAMOS; J. RODRIGUEZ; C. MACIEL, DEFENDANTS.



The opinion of the court was delivered by: John A. HOUSTONUnited States District Judge

ORDER DISMISSING FIRST AMENDED COMPLAINT FOR PURSUANT TO 28 U.S.C. FAILING TO STATE A CLAIM §§ 1915(e)(2)(B) & 1915A(b)

I. PROCEDURAL HISTORY

On June 6, 2011, Plaintiff, a state inmate currently incarcerated at Calipatria State Prison located in Calipatria, California, and proceeding pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. Plaintiff did not prepay the $350 filing fee mandated by 28 U.S.C. § 1914(a); instead, he filed a certified copy of his inmate trust account statement which the Court construed as a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) [ECF No. 2].

On October 4, 2011, the Court granted Plaintiff's Motion to Proceed IFP but simultaneously dismissed Plaintiff's Complaint for failing to state a claim upon which relief could be granted pursuant to 28 U.S.C. §§ 1915(e)(2)((B) & 1915A(b). See Oct. 4, 2011 Order at 7-8. Plaintiff was granted leave to file an Amended Complaint in order to correct the deficiencies of pleading identified in the Court's Order. Id. On November 21, 2011, Plaintiff filed his First Amended Complaint ("FAC").

II. SCREENING PURSUANT TO 28U.S.C.§§1915(e)(2)&1915A(b)

As the Court stated in the previous Order, the Prison Litigation Reform Act ("PLRA")'s amendments to 28 U.S.C. § 1915 obligates the Court to review complaints filed by all persons proceeding IFP and by those, like Plaintiff, who are "incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program," "as soon as practicable after docketing." See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). Under these provisions, the Court must sua sponte dismiss any prisoner civil action and all other IFP complaints, or any portions thereof, which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 n.1 (9th Cir. 2000) (§ 1915A).

Before amendment by the PLRA, the former 28 U.S.C. § 1915(d) permitted sua sponte dismissal of only frivolous and malicious claims. Lopez, 203 F.3d at 1126, 1130. However, 28 U.S.C. § 1915(e)(2) and § 1915A now mandate that the court reviewing an IFP or prisoner's suit make and rule on its own motion to dismiss before directing that the Complaint be served by the U.S. Marshal pursuant to FED.R.CIV.P. 4(c)(2). Id. at 1127 ("[S]section 1915(e) not only permits, but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim."); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (discussing § 1915A).

"[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194.

A. Retaliation claims

Plaintiff alleges that Defendants began acts of retaliation against him because he served them with a civil suit in July of 2007. (See FAC at 4.) Of fundamental import to prisoners are their First Amendment "right[s] to file prison grievances," Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003), and to "pursue civil rights litigation in the courts." Schroeder v. McDonald, 55 F.3d 454, 461 (9th Cir. 1995). Without those bedrock constitutional guarantees, inmates would be left with no viable mechanism to remedy prison injustices. Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005). "And because purely retaliatory actions taken against a prisoner for having exercised those rights necessarily undermine those protections, such actions violate the Constitution quite apart from any underlying misconduct they are designed to shield." Id. (citing Pratt v. Rowland, 65 F.3d 802, 806 & n.4 (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, 408 F.3d at 567-68 (footnote omitted) (citing Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000); Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994)).

Plaintiff sets forth a series of factual allegations that provide very little detail, including failing to link any of the named Defendants to specific allegations of acts of retaliation.*fn1 Plaintiff also claims that Defendants were served with a summons in 2007 that started this acts of retaliation. A court "may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue." United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). The Court takes judicial notice of the case filed by Plaintiff that he refers to in his First Amended Complaint. Plaintiff filed Franklin v. Scribner, et al., S.D. Cal. Civil Case No. 07cv0438 WVG (RBB) on March 8, 2007. A review of the Court's docket shows that the Defendants in that particular case were served with Plaintiff's action in July of 2007. However, none of the Defendants, with the exception of Defendant Maciel, named in the 2007 action are named in this action currently before the Court. There are no allegations that would link the Defendants named in this case to the knowledge of a case that Plaintiff filed in 2007. Moreover, there are no specific allegations as to how Defendant Macial retaliated against Plaintiff for initiating the 2007 lawsuit.

Plaintiff's allegations are broad and vague. As stated in the Court's previous Order, Plaintiff has failed to provide sufficient factual allegations to meet any of the five factors required to state a retaliation claims. See Rhodes, 408 F.3d at 567-68; see also Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937 (2009) ("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."). Therefore, the Court must, once again, sua sponte dismiss ...


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