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Marcus Harrison v. E. Smith

April 4, 2013

MARCUS HARRISON, PLAINTIFF,
v.
E. SMITH, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Jon S. Tigar United States District Judge

ORDER OF SERVICE; DIRECTIONS TO CLERK

Plaintiff, an inmate at Pelican Bay State Prison ("PBSP"), filed this pro se civil rights 14 action under 42 U.S.C. § 1983. The Court reviewed his complaint and dismissed it with leave to 15 amend. He then filed an amended complaint, which is now before the Court for review under 28 16 U.S.C. § 1915A. 17

DISCUSSION

A. Standard of Review

Federal courts must engage in a preliminary screening of cases in which prisoners seek 20 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 21 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of 22 the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief 23 may be granted," or "seeks monetary relief from a defendant who is immune from such relief." Id. 24 § 1915A(b). Pro se pleadings must be liberally construed, however. Balistreri v. Pacifica Police 25 Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 26

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that 28 the alleged violation was committed by a person acting under the color of state law. West v. 2 Atkins, 487 U.S. 42, 48 (1988). 3

B. Legal Claims 4

Plaintiff alleges that PBSP correctional officers E. Smith and R. Graves retaliated against 5 him for filing inmate grievances by, among other things, threatening plaintiff with rules violation 6 reports, denying plaintiff issuance of "indigent floss loops," selectively enforcing prison 7 regulations against plaintiff, refusing to act on plaintiff's grievances and appeals, and subjecting 8 plaintiff to a hostile inmate. Liberally construed, plaintiff's allegations state cognizable retaliation 9 claims under § 1983 against the named defendants because it is well established that prison 10 officials may not retaliate against prisoners for filing inmate grievances. See Rhodes v. Robinson, 11 408 F.3d 559, 567 (9th Cir. 2005); Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003). 12

CONCLUSION

1. Plaintiff's amended complaint states cognizable claims for retaliation against E. Smith and R. Graves. The Clerk shall terminate all other defendants. 15

2. The Clerk shall issue summons and the United States Marshal shall serve, without 16 prepayment of fees, the summons, a copy of the amended complaint, all attachments thereto, and a copy of this order on E. Smith and R. Graves at Pelican Bay State Prison. 18

3. In order to expedite the resolution of this case, the Court orders as follows: 19

a. No later than 90 days from the date this order is filed, defendants must file 20 and serve a motion for summary judgment or other dispositive motion. If defendants are of the 21 opinion that this case cannot be resolved by summary judgment, defendants must so inform the 22

Court prior to the date the motion is due. A motion for summary judgment also must be 23 accompanied by a Rand notice so that plaintiff will have fair, timely and adequate notice of what 24 is required of him in order to oppose the motion. Woods v. Carey, 684 F.3d 934, 939 (9th Cir. 25 2012) (notice requirement set out in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be 26 served concurrently with motion for summary judgment). A motion to dismiss for failure to 27 exhaust available ...


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