The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER ADOPTING IN PART AND
MODIFYING IN PART FINDINGS AND
ORDER REGARDING PLAINTIFF'S
MOTION TO AMEND (DOC. (259)
Plaintiff Kavin M. Rhodes ("Plaintiff") is a California state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. On June 9, 2011, Plaintiff filed a document labeled as a third amended complaint. Doc. 239. This filing will be construed as a supplemental complaint pursuant to Rule 15(d) of the Federal Rules of Civil Procedure. On June 24, 2011, Defendants filed a motion to dismiss. Doc. 240. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On December 19, 2011, the Magistrate Judge filed a Findings and Recommendations which was served on the parties and which contained notice to the parties that any objection to the Findings and Recommendations was to be filed within thirty days. Doc. 254. On January 17, 2012, Defendants filed an Objection. Doc. 255. On January 27, 2012, Plaintiff filed an Objection, contending that he had not received the Findings and Recommendations. After the Magistrate Judge reissued the Findings and Recommendations, Plaintiff filed his Objection on March 28, 2012. Doc. 262.
In accordance with the provisions of 28 U.S.C. § 636(b)(1), this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court issues the following additional analysis concerning the Findings and Recommendations to address the parties' objections.
II. Plaintiff's Objections
Plaintiff objects that the Magistrate Judge found that Plaintiff failed to state a claim against Defendants Robinson and Blevins for refusal to return property, but found a claim against Defendants Wenneker, Pazo, and Tidwell. Plaintiff's objection raises no new arguments. The only alleged link between Defendants Robinson and Blevin and Defendants Wenneker, Pazo, and Tidwell is an alleged conspiracy, for which Plaintiff fails to state a claim. The Magistrate Judge's finding is supported by proper legal analysis.
Plaintiff complains that he alleged retaliation by Defendants against Plaintiff for the filing of this action when his mail was allegedly sent by the Magistrate Judge to Defendants Robinson and Blevins. Plaintiff contends that the Magistrate Judge did not address Plaintiff's alleged retaliation claim. For the sake of clarity, the Court does so here.
Allegations of retaliation against a prisoner's First Amendment rights to speech or to petition the government may support a § 1983 claim. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). "Within the prison context, 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 v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).
Plaintiff fails to state a claim for retaliation against Defendants Robinson and Blevins for retaliation in violation of the First Amendment. Plaintiff alleges that Defendants Robinson and Blevins opened Plaintiff's mail from the Court, copied, read, and held the documents for twenty-six days, became aware of Plaintiff's civil complaint, and used it to "spawn a two-year tirade of retaliatory abuse under the guise of policy." Plaintiff fails to allege facts which demonstrate that Defendants Robinson and Blevins engaged in adverse action by allegedly reading Plaintiff's legal mail. Mail from the court is not legal mail, and thus may be opened and read outside the presence of the prisoner. Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir. 1996), amended by 135 F.3d 1318 (9th Cir. 1998); Mann v. Adams, 846 F.2d 589, 590-91 (9th Cir. 1988) (per curiam) (concluding that mail from public agencies, public officials, civil rights groups and news media may be opened outside the prisoners' presence in light of security concerns). Plaintiff contends that two years of retaliatory abuse followed Defendant Robinson and Blevins's alleged actions. However, Plaintiff has not alleged facts which demonstrate that Defendants Robinson and Blevins's actions were linked to or caused the alleged subsequent retaliation. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Thus, Plaintiff fails to state a retaliation claim against Defendants Robinson and Blevins.
Plaintiff contends that a false rules violation report is sufficient to demonstrate retaliation in violation of the First Amendment. Plaintiff, however, failed to allege facts which indicate that Defendants filed false rules violation reports because of Plaintiff's protected conduct. The Magistrate Judge's finding is supported by proper legal analysis.
Plaintiff contends that removal from single cell status is adverse action for purposes of retaliation, citing Pratt, 65 F.3d 802. Plaintiff misstates the law. Being double-celled and transferred is sufficient to demonstrate adverse action for purposes of retaliation. Pratt, 65 F.3d at 807. Additionally, double-celling can serve a legitimate penological goal: addressing overcrowding issues. Id. at 809-10. Being double-celled, by itself, is not a sufficient adverse action.
Plaintiff's placement in administrative segregation may be a sufficient adverse action for purposes of retaliation. However, Plaintiff fails to allege facts which demonstrate that Defendant took such adverse action because of Plaintiff's protected conduct. The Magistrate Judge's finding is supported by proper legal analysis.
Plaintiff contends that Defendant Ramos engaged in a conspiracy with other Defendants to have Plaintiff thrown in the hole on fabricated charges. Plaintiff fails to state a claim against Defendant Ramos. Plaintiff fails to allege facts which link Defendant Ramos's alleged adverse action as taken because of Plaintiff's protected First Amendment. Plaintiff's bare allegation of conspiracy is insufficient to state a claim. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'") (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The Magistrate Judge's finding is supported by proper legal analysis.
Plaintiff contends that Defendant Skeen coaxing Plaintiff to take psychotropic medication to render Plaintiff docile is an adverse action for purposes of retaliation and deliberate indifference in violation of the Eighth Amendment. Plaintiff fails to state a claim against Defendant Skeen. Plaintiff fails to allege facts which demonstrate that mere coaxing is adverse action. Plaintiff fails to allege facts which demonstrate that mere coaxing to take psychotopic medication demonstrates ...