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George K. Colbert v. M. Carrasco

May 3, 2013

GEORGE K. COLBERT, PLAINTIFF,
v.
M. CARRASCO, ET AL., DEFENDANTS



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER DISMISSING COMPLAINT AND GRANTING PLAINTIFF LEAVE TO FILE AN AMENDED COMPLAINT AMENDED COMPLAINT DUE IN THIRTY DAYS

I. Screening Requirement

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

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). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

II. Plaintiff's Claims

Plaintiff, an inmate in the custody of the California Department of Corrections and Rehabilitation (CDCR) at CSP Sacramento, brings this civil rights action against defendant correctional officials employed by the CDCR at CCI Tehachapi. The events that give rise to this lawsuit occurred while Plaintiff was housed at CCI. Plaintiff names the following individual defendants: Warden M. Carrasco; Facility Captain T. Steadman; Sergeant E. Noyce; Correctional Counselor (CC) E. Croxton; Correctional Officer (C/O) J. Heil. Plaintiff claims that Defendants have subjected him to retaliation for exercising his First Amendment Rights. Plaintiff alleges generally that each of the Defendants "part took in adverse actions by deny Plaintiff property because Plaintiff filed a lawsuit, so the retaliations was to chilled Plaintiff's exercise of his First Amendment rights, and the taking of Plaintiff's property did not reasonably advance a legitimate correctional goal." (Compl. P. 3A.) The balance of the complaint is a recitation of legal argument and prison regulations.

A. Retaliation

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 5527, 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); accord Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009).

An allegation of retaliation against a prisoner's First Amendment right to file a prison grievance as sufficient to support a claim under section 1983. Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003). The Court must "'afford appropriate deference and flexibility' to prison officials in the evaluation of proffered legitimate penological reasons for conduct alleged to be retaliatory." Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995)(quoting Sandin v. Conner, 515 U.S. 472, 482 (1995)). The burden is on Plaintiff to demonstrate "that there were no legitimate correctional purposes motivating the actions he complains of." Pratt, 65 F.3d at 808.

Under Iqbal, the Court is directed to begin the screening analysis by identifying conclusory allegations that are not entitled to the assumption of truth, such as bare assertions and "formulaic recitation of the elements" of a claim. Iqbal, 129 S.Ct. at 1951. Plaintiff's statement that Defendants took his property because he filed a lawsuit falls into this category. Here, Plaintiff only recites elements of a retaliation claim and makes a conclusory statement about Defendants' purpose in depriving Plaintiff of his rights. Plaintiff makes other conclusory allegations as well, such as "the taking of Plaintiff's property does not advance a legitimate penological goal." Such statements are not entitled to be assumed to be true. Iqbal, 129 S.Ct. at 1951.

Iqbal next directs the Court to "consider the factual allegations in [the] complaint to determine if they plausibly suggest an entitlement to relief." Id. The factual allegations are to be taken as true. Id. at 1951. Here, Plaintiff satisfies the first element of a retaliation claim - an assertion that a state actor took some adverse action against an inmate - when he alleges that Defendants, employees of the CDCR, deprived him of his property. The third element - that the prisoner engaged in protected conduct - is satisfied because Plaintiff alleges he filed a lawsuit.

With respect to the second element - that Defendants acted against Plaintiff because of his protected conduct - Plaintiff has not alleged any facts showing a nexus between Defendants' behavior and the subject matter of his complaints. Plaintiff cites no behavior or statements by Defendants, no suspect timing, or any other allegations, to plausibly suggest that Defendants took issue with the filing of a lawsuit. Plaintiff makes only a bare assertion that the defendants, including supervisory defendants, deprived him of his property. Plaintiff has not alleged facts that support a reasonable inference that Defendants deprived him of his property because he filed a lawsuit. Plaintiff's own evidence, in the form of exhibits attached to his complaint (a copy of the First Level Response to his inmate grievance), shows that Plaintiff went out to court on April 1, 2008, and at that time his property, two boxes, inadvertently followed him. Upon Plaintiff's return to Facility IVB on May 1, 2008, he returned with three boxes which included the allegedly missing property. The property was not reissued due to the fact that Plaintiff was transferred to Facility IVA on ...


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