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Miller v. McEwen

United States District Court, Ninth Circuit

August 26, 2013



JANIS L. SAMMARTINO, District Judge.

Presently before the Court is Defendants L.S McEwen, G.J. Janda, Dr. Richard Kornbluth, Paramo, H. Amezcua, S. Hardman, T. Alvarez, C. Villalobos, J. Flores, R. Lizarraga, B. Dominguez, M. Vitela, RN Zamora, and M. Castro's ("Defendants") motion to dismiss Plaintiff Gerald Lee Miller Jr.'s ("Plaintiff") second amended complaint ("SAC"). (Mot. to Dismiss, ECF No. 40). Also before the Court are Magistrate Judge William V. Gallo's Report and Recommendation ("R&R"), recommending that the Court grant in part and deny in part Defendants' motion to dismiss, (R&R, ECF No. 45), and Petitioner's objections to the R&R, (Obj., ECF Nos. 47 & 48). For the reasons stated below, the Court ADOPTS IN PART the R&R and GRANTS IN PART AND DENIES IN PART Defendants' motion to dismiss.


Magistrate Judge Gallo's R&R contains a thorough and accurate recitation of the procedural history and facts underlying Plaintiff's complaint.[1] (R&R 2-20, ECF No. 45). This Order incorporates by reference the facts as set forth in the R&R, and briefly summarizes only the most relevant facts here.

Plaintiff, a prisoner proceeding pro se, initiated the instant action on October 7, 2011. (Compl., ECF No. 1). Plaintiff's operative SAC names fourteen defendants, [2] and claims assorted violations of his First, Eighth, and Fourteenth Amendment rights pursuant to 42 U.S.C. § 1983. (SAC, ECF No. 37). Defendants moved to dismiss Plaintiff's SAC on February 21, 2013. (MTD, ECF No. 40). On April 19, 2013, Magistrate Judge Gallo issued an R&R recommending that the Court grant in part and deny in part Defendants' motion. (R&R, ECF No. 45). Plaintiff filed timely objections to the R&R on May 16, 2013 and May 24, 2013. (Obj., ECF Nos. 47 & 48).


1. Review of the Report and Recommendation

Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1) set forth a district court's duties regarding a magistrate judge's R&R. The district court "shall make a de novo determination of those portions of the report... to which objection is made, " and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(c); see also United States v. Raddatz, 447 U.S. 667, 673-76 (1980). In the absence of a timely objection, however, "the Court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed.R.Civ.P. 72 advisory committee's note (citing Campbell v. U.S. Dist. Ct., 501 F.2d 196, 206 (9th Cir. 1974)).

2. Motion to Dismiss

Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that the complaint "fail[s] to state a claim upon which relief can be granted, " generally referred to as a motion to dismiss. The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Although Rule 8 "does not require detailed factual allegations, '... it [does] demand[] more than an unadorned, the-defendant-unlawfully-harmed-me-accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, "a plaintiff's obligation to provide the grounds' of his entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Nor does a complaint suffice if it tenders naked assertion[s]' devoid of further factual enhancement.'" Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 557).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Id. (quoting Twombly, 550 U.S. at 570); see also Fed R. Civ. P. 12(b)(6). A claim is facially plausible when the facts plead "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). That is not to say that the claim must be probable, but there must be "more than a sheer possibility that a defendant has acted unlawfully." Id. Facts "merely consistent with' a defendant's liability" fall short of a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). Further, the Court need not accept as true "legal conclusions" contained in the complaint. Id. This review requires context-specific analysis involving the Court's "judicial experience and common sense." Id. at 1950 (citation omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown[n]'-that the pleader is entitled to relief." Id. Moreover, "for a complaint to be dismissed because the allegations give rise to an affirmative defense[, ] the defense clearly must appear on the face of the pleading." McCalden v. Cal. Library Ass'n, 955 F.2d 1214, 1219 (9th Cir. 1990).

Relevant here, the Court has a duty to liberally construe a pro se's pleadings. See Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). "Pro se complaints are to be construed liberally and may be dismissed for failure to state a claim only where it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Barret v. Belleque, 544 F.3d 1060, 1061-62 (9th Cir. 2008) (internal quotation marks and citation omitted). The court's liberal interpretation of a pro se complaint may not, however, supply essential elements of the claim that were not pled. Ivey v. Bd. of Regents of Univ. Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

Where a motion to dismiss granted, "leave to amend should be granted unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.'" DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). In other words, where leave to amend would be futile, the Court may deny leave to amend. See DeSoto, 957 F.2d at 658; Schreiber, 806 F.2d at 1401.

3. Cognizable Claim for Federal Relief

To state a claim under 42 U.S.C. § 1983, Plaintiff must allege that: (1) the conduct he complains of was committed by a person acting under color of state law; and (2) that conduct violated a right secured by the Constitution and laws of the United States. Humphries v. County of Los Angeles, 554 F.3d 1170, 1184 (9th Cir. 2009) (citing West v. Atkins, 487 U.S. 42, 48 (1988)).


Plaintiff's objections add few arguments not already asserted before Magistrate Judge Gallo and considered in the R&R. Nevertheless, the Court liberally construes and considers Plaintiff's discernable objections as now presented. Plaintiff's claims are considered on the merits with a brief summary of the R&R's conclusions, Petitioner's objections, and the Court's reasoning. For ease of comparison, the Court analyzes Plaintiff's claims in the same order utilized by the R&R.

1. First Amendment Retaliation Claims Against Defendants Amezcua, Hardman, Alvarez, Dominguez, Villalobos, Castro, Flores, Vitela, and Zamora

Plaintiff contends that Defendants T. Alvarez, Amezcua, Dominguez, Castro, Flores, Hardman, Villalobos, Vitela, and Zamora retaliated against Plaintiff because Plaintiff filed prison grievances and a civil lawsuit. (SAC ¶ 208, ECF No. 37). Plaintiff alleges the following retaliatory actions: 1) T. Alvarez refused to deliver Plaintiff's legal and personal mail; 2) Dominguez refused to deliver Plaintiff's legal and personal mail and intentionally delivered it to another inmate; 3) Villalobos terminated Plaintiff's access to the law library and the courts; 4) Amezcua destroyed Plaintiff's legal materials and took Plaintiff's legal books; and, 5) Flores and Vitela took and made copies of Plaintiff's outgoing mail, and then had prison investigative services go to the home of Plaintiff's daughter's and seize the same letters. ( Id. ¶¶ 209-211, 213-14, ECF No. 37).

A. Summary of the Report and Recommendation

Magistrate Judge Gallo recommends that the Plaintiff's First Amendment retaliation claims against T. Alvarez, Amezcua, Dominguez, Castro, Flores, Hardman, Villalobos, Vitela, and Zamora be dismissed without prejudice. (R&R 26, ECF No. 45). The Magistrate Judge reasons that Plaintiff does not allege sufficient facts demonstrating causation between the allegedly retaliatory acts taken and Plaintiff's exercise of his First Amendment rights. ( See id. at 24-26) ("[Plaintiff] cannot simply list all of the allegedly adverse actions taken against him at CSP, and then conclude that these must have been in retaliation for prison grievances and the civil lawsuit.").

B. Objections to the Report and Recommendation

Plaintiff contends that the R&R improperly applied a heightened pleading standard to his First Amendment retaliation claims. (Obj. 2, ECF No. 47). Specifically, Plaintiff contends that the pleading standards of Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal do not apply to his retaliation claims. ( Id. ) Plaintiff also contends that his retaliation claims against Flores, Vitela, Villalobos, Zamora, Hardman, Amezcua, T. Alvarez, and Dominguez should not be dismissed because Plaintiff has alleged "enough facts to put the defendants on notice and enable them to file an answer." ( Id. ) Further, Plaintiff contends that the R&R failed to apply the standard of improper retaliatory motive. ( Id. )

C. Analysis

"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. 2004) (citations omitted). Filing an inmate grievance or civil action is protected conduct for purposes of a First Amendment retaliation claim. Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012); Rhodes v. Robinson, 408 F.3d at 567. "[T]he plaintiff must allege a causal connection between the adverse action and the protected conduct. Because direct evidence of retaliatory intent rarely can be pleaded in a complaint, allegation of a chronology of events from which retaliation can be inferred is sufficient to survive dismissal." Watison, 668 F.3d at 1114.

The Court agrees with the R&R's finding that Plaintiff does not allege facts plausibly establishing his claims against Defendants Villalobos, Amezcua, Dominguez, Castro, Zamora, Flores, Vitela, Hardman, and Alvarez. Plaintiff alleges that these Defendants took adverse actions against him without a legitimate correctional goal, and that their conduct chilled the exercise of his First Amendment rights. ( See SAC ¶¶ 54, 61, 63, 65, 66, 70, 73-74, 79, 81-82, 91, 93-94, 100, 102, 121-23, 127, 129, 146, 150, 155, 174, 178-79, 182, 184, ECF No. 37). Nonetheless, Plaintiff fails to allege any facts demonstrating that these Defendants' acts were "because of" his protected conduct-namely, filing an inmate grievance or appeal. See Rhodes, 668 F.3d at 567-568. Plaintiff alleges that Defendants Flores, Vitella, Hardman acted in retaliation for his prison grievances or appeals, but Plaintiff offers only legal conclusions and no supporting facts. ( See SAC ¶¶ 66, 74, ECF No. 37). Further, Plaintiff entirely fails to allege that Defendants Amezcua, Castro, Dominguez, Villalobos, or Zamora acted in retaliation for Plaintiff's protected conduct.

With regard to Defendant Alvarez, Plaintiff includes more factual allegations, such as his contention that Alvarez withheld his mail, removed pages from his outgoing legal mail, and removed legal material and a personal picture from his cell. ( Id. ¶¶ 82, 85-86, 88). Moreover, Plaintiff also alleges that Alvarez told him that he would not receive his mail until he dropped his lawsuit, which might suggest that Alvarez targeted Plaintiff because of, and in retaliation for, Plaintiff's protected conduct. Nonetheless, the Court agrees with the R&R that Plaintiff fails to allege sufficient facts regarding his purported legal action against Alvarez to establish a claim for retaliation.

For the aforementioned reasons, the Court ADOPTS the R&R in full with respect to these claims and DISMISSES WITHOUT PREJUDICE Plaintiff's First Amendment retaliation claims against Defendants Amezcua, Castro, Dominguez, Villalobos, Zamora, Hardman, Flores, Vitella, and Alvarez.

2. Access to the Courts Claim Against Defendant Villalobos

Plaintiff contends that Villalobos wrongfully terminated his access to the prison law library. (SAC ¶ 54, ECF No. 37). Plaintiff alleges that this conduct cause him to miss a deadline in at least one civil suit. ( Id. ¶¶ 54-61).

Magistrate Judge Gallo recommended that Plaintiff's access to the courts claim against Villalobos be dismissed without prejudice. (R&R 30, ECF No. 45). The R&R reasons that Plaintiff has failed to allege an actual injury arising out of Defendant Villalobos's actions. ( Id. at 28-30). "Plaintiff does not specify which defendant was dismissed from which civil lawsuit and how missing the discovery deadline resulted in dismissal of that defendant, " nor does Plaintiff "identify a remedy that may be awarded as recompense...." ( Id. at 29).

Plaintiff presents no discernable objection to the Magistrate Judge's conclusion. Having reviewed the R&R's analysis of this matter, the Court finds that it is thorough, well reasoned, and contains no clear error. Accordingly, the Court ADOPTS the R&R with respect to this claim and DISMISSES ...

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