United States District Court, E.D. California
LAWRENCE J. JACKSON, JR., Plaintiff,
J. AUSTIN, et al., Defendants.
KENDALL J. NEWMAN, Magistrate Judge.
Plaintiff is a state prisoner proceeding pro se and in forma pauperis. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983. Plaintiff's amended complaint is before the court.
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).
The undersigned finds that the amended complaint states a potentially cognizable claim for relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). Specifically, the amended complaint states a claim against defendant Austin for excessive force, in violation of the Eighth Amendment, viz., that Austin's alleged use of force against plaintiff on June 4, 2013, constituted an "unnecessary and wanton infliction of pain, " Jeffers v. Gomez , 267 F.3d 895, 910 (9th Cir. 2001), which was allegedly applied, not in "a good-faith effort to maintain or restore discipline, [but] maliciously and sadistically to cause harm, " Hudson v. McMillian , 503 U.S. 1, 6-7 (1992).
The undersigned finds that the amended complaint again does not state a potentially cognizable claim for relief based on his claims against the other named defendants.
A. First Amendment Claims
Plaintiff alleges that defendant Lee violated plaintiff's First Amendment rights, when Lee denied plaintiff his "right to verbally redress a grievance to A/W Matteson, " by approaching the conversation among Matteson, inmate Edinbyrd and plaintiff, and ordered defendant Austin to get plaintiff "away from here and search that A-hole." (ECF No. 17 at 3.) It is unclear whether plaintiff claims that defendant Lee violated plaintiff's First Amendment right to redress a grievance, or plaintiff's right to free speech.
The filing of prison grievances is unquestionably protected conduct. Bruce v. Ylst , 351 F.3d 1283, 1288 (9th Cir. 2003). The Constitution provides protections against "deliberate retaliation" by prison officials against an inmate's exercise of his right to petition for redress of grievances. Soranno's Gasco, Inc. v. Morgan , 874 F.2d 1310, 1314 (9th Cir. 1989).
To state a viable First Amendment retaliation claim, a prisoner must allege five 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). Conduct protected by the First Amendment includes communications that are "part of the grievance process." Brodheim v. Cry , 584 F.3d 1262, 1271 n.4 (9th Cir. 2009). District courts 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) (citing Sandin v. Conner , 515 U.S. 472 (1995)).
However, in the prison context, not all speech is protected speech, and a prisoner does not have the same First Amendment rights as a non-prisoner. See Bell v. Wolfish , 441 U.S. 520, 545 (1979). "[A] prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." Pell v. Procunier , 417 U.S. 817, 822 (1974). A prisoner's First Amendment claim "must be analyzed in terms of the legitimate policies and goals of the corrections system...." Id.
To the extent that plaintiff claims his right to free speech was impaired, another district court explained the unsettled state of the law concerning such claims:
While "a prison inmate retains... First Amendment rights, " Pell v. Procunier , 417 U.S. 817, 822 (1974), "lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system, " Price v. Johnston , 334 U.S. 266 285, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948). Surprisingly, prisoners rarely invoke oral complaints as the basis of their retaliation claims - written complaints compose the backbone of most. Thus, the Ninth Circuit has never had cause to determine whether oral complaints concerning a prisoner's individual circumstances are protected by the First Amendment. The Seventh Circuit, on the other hand, has had the opportunity, holding a prisoner's speech "must relate to a public concern and not just a personal matter to receive First Amendment protection." McElroy v. Lopac , 403 F.3d 855, 858 (7th Cir. 2005); also see Sasnett v. Litscher , 197 F.3d 290, 292 (7th Cir. 1999). Imputing to inmate free-speech claims the "public concern" requirement of public-employee cases, the Seventh Circuit apparently reasoned "an inmate's rights are not more extensive than those of a government employee." See McElroy , 403 F.3d at 858 (citing Thaddeus-X v. Blatter , 175 F.3d 378, 392 (6th Cir. 1999) (en banc)).
In contrast, the Second Circuit has rejected the public concern requirement, at least when the prisoner's speech involved access to the courts. Friedl v. City of New York , 210 F.3d 79, 85 (2d Cir. 2000). The court was emphatic on this point, stating "[t]he public concern' requirement, developed in context of public employee speech, has no place in the context of prisoner petitions for the redress of grievances, which typically address matters of personal concern." Id. at 87. The pertinent facts in Friedl, however, differ from those of McElroy and the case at bar - informal verbal complaints did not play a role. The thrust of Friedl's holding was directed at a prisoner's First Amendment right to seek redress, not a prisoner's First Amendment right to verbally speak out. Similarly, the Sixth Circuit has rejected a public concern litmus test for prisoners to access the courts but declined to determine "the appropriateness of explicitly applying the public concern limitation to speech by prisoners, whose free speech rights are uncontrovertedly limited by virtue of their incarceration." Thaddeus-X , 175 F.3d 392.
Teahan v. Wilhelm, 2007 WL 5041440 (S.D. Cal. Dec. 21, 2007). In Teahan, the district court found that the exhibits appended to the original complaint undermined the prisoner's claims, whether based on the right to petition the government for redress or the right to free speech, because the ...