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Krug v. Pellicane

United States District Court, C.D. California

November 25, 2014

GREGORY C. KRUG, Plaintiff,
THOMAS PELLICANE, et al., Defendants

Gregory C Krug, Plaintiff, Pro se, MILAN, MI.

For Thomas Pellicane, John Shell, Defendants: Tim L Laske, LEAD ATTORNEY, AUSA - Office of U.S. Attorney, Los Angeles, CA.


CARLA M. WOEHRLE, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Percy Anderson, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California. For reasons stated below, Defendants' motion to dismiss should be granted and this action should be dismissed, with prejudice, for failure to state a claim.


Plaintiff Gregory C. Krug, a prisoner in federal custody, is proceeding pro se and in forma pauperis in a civil rights action against governmental defendants. This action was opened on December 14, 2012, with the filing of Plaintiff's initial motion to proceed in forma pauperis. [Docket no. 1.] Plaintiff was granted leave to file without prepayment of the filing fee and his Complaint (" Cpt.") was filed on May 2, 2013. [Docket no. 10.] Plaintiff was granted leave to proceed in forma pauperis on September 3, 2013. [Docket no. 16.] Defendants' Motion to Dismiss (" MTD") was filed on May 15, 2014. [Docket no. 31.] Plaintiff's Opposition (" Opp.") was filed on July 14, 2014. [Docket no. 43.] Defendants' Reply was filed on August 6, 2014. [Docket no. 45.] Plaintiff's Request for Evidentiary Hearing (" P. Req.") was filed on August 22, 2014, and has been construed as, in part, a supplemental brief in opposition. [Docket no. 47.] The motion to dismiss has been taken under submission without oral argument.


Complaints such as Plaintiff's are subject to the court's sua sponte review under provisions of the Prison Litigation Reform Act of 1995 (" PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996). See 28 U.S.C. § 1915A(a). The court shall dismiss such a complaint, at any time, if the court finds that it (1) is frivolous or malicious, [1] (2) fails to state a claim on which relief may be granted, or (3) seeks monetary relief from a defendant immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(in forma pauperis complaints); 28 U.S.C. § 1915A(b)(prisoner complaints against government defendants); Lopez v. Smith, 203 F.3d 1122, 1126-27 and n.7 (9th Cir. 2000)(en banc). " Failure to state a claim" has the same meaning on PLRA review and on review of a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Knapp, 738 F.3d at 1109. A Rule 12(b)(6) motion to dismiss for failure to state a claim " 'tests the legal sufficiency of a claim.'" Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011) (quoting Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). Dismissal for failure to state a claim may be based on " 'lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.'" Conservation Force, 646 F.3d at 1242 (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). A complaint may also be dismissed for failure to state a claim if it discloses a fact or complete defense that will necessarily defeat the claim. Franklin v. Murphy, 745 F.2d 1221, 1228-29 (9th Cir. 1984) (citing 2A Moore's Federal Practice ¶ 12.08).

To survive review for failure to state a claim, a complaint must allege facts sufficient " 'to state a facially plausible claim to relief.'" Conservation Force, 646 F.3d at 1242 (quoting Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010)). " A complaint is properly dismissed under Rule 12(b)(6) unless it contains enough facts to state a claim to relief that is plausible on its face. . . . Well-pleaded factual allegations are taken as true, but conclusory statements or bare assertions are discounted." Recinto v. U.S. Dep't of Veterans Affairs, 706 F.3d 1171, 1177 (9th Cir. 2013)(citing Ashcroft v. Iqbal, 556 U.S. 662, 681, 697, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); other citations and internal quotation marks omitted)).

If the court finds that a complaint should be dismissed for failure to state a claim, the court may dismiss with or without leave to amend. Lopez, 203 F.3d at 1126-30. Leave to amend should be granted if it appears that defects can be corrected, especially if the plaintiff is appearing pro se. Id. at 1130-31. If, after careful consideration, it is clear that a complaint cannot be cured by amendment, the court may dismiss without leave to amend. Cato, 70 F.3d at 1107-11.


Plaintiff brings suit under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), requesting a jury trial and seeking compensatory and punitive damages. [Cpt. ¶ 5, 10-11.][2] In Bivens, the Supreme Court recognized a private right of action for damages against an individual officer, acting under color of federal law, for violating a plaintiff's Fourth Amendment rights. See Minneci v. Pollard, U.S., 132 S.Ct. 617, 620-621, 181 L.Ed.2d 606 (2012)(citing Bivens). Plaintiff names as defendants (effectively in an individual capacity) two agents of the United States Marshals Service, Thomas Pellicane and John Shell. [Cpt ¶ ¶ 2-3.][3] He claims that these defendants, acting under color of federal law, violated his First Amendment right to freedom of speech. [Cpt. ¶ 5.] " The Supreme Court has never explicitly held that the logic of Bivens extends to claims alleging a First Amendment violation." Moss v. U.S. Secret Service, 572 F.3d 962, 967 n.4 (9th Cir. 2009).[4] However, the Ninth Circuit has held " that Bivens authorizes First Amendment damages claims." Id. (citing Gibson v. United States, 781 F.2d 1334, 1342 (9th Cir. 1986)).

Assuming, then, that Plaintiff can bring a Bivens claim for violation of his First Amendment free speech rights, the elements of the claim stating a First Amendment violation would be the same as in a comparable claim in an action under 42 U.S.C. § 1983 against defendants acting under color of state law. See Iqbal, 556 U.S. at 675-76. Here, Plaintiff claims that the defendants retaliated against him for exercising his First Amendment right to freedom of speech in the form of content he posted to his website.

" Official reprisal for protected speech offends the Constitution [because] it threatens to inhibit exercise of the protected right, . . . and the law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out . . ." Hartman v. Moore, 547 U.S. 250, 256, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006)(citations and internal quotation marks omitted). " Governmental action designed to retaliate against and chill political expression strikes at the heart of the First Amendment." Mendocino Environmental Center v. Mendocino County (Mendocino Environmental Center I), 14 F.3d 457, 464 (9th Cir. 1994)(citation and internal quotation marks omitted). " Accordingly, the victim of such action is entitled to sue the responsible officers." Id.

In order to state a First Amendment retaliation claim, a plaintiff must show: " (1) that the plaintiff 'was engaged in constitutionally protected activity'; (2) that the defendant's actions caused the plaintiff 'to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity'; and (3) that the 'defendant's adverse action was substantially motivated as a response to the plaintiff's exercise of constitutionally protected conduct.'"

Buckheit v. Dennis, No. C 09-5000 JCS, 2012 WL 1166077, at *18 (N.D. Cal. Apr. 6, 2012)(quoting Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir. 2000) and citing Mendocino Environment Center v. Mendocino County (Mendocino Environmental Center II), 192 F.3d 1283, 1300-1301 (9th Cir. 1999)); see also Ford v. City of Yakima, 706 F.3d 1188, 1193 (9th Cir. 2013); Lacey v. Maricopa County, 693 F.3d 896, 916-17 (9th Cir. 2012)(en banc); Mendocino Environmental Center I, 14 F.3d at 464.


Plaintiff's allegations are reviewed under the " plausibility" standard of Ashcroft v. Iqbal, which requires the reviewing court to distinguish between factual allegations and conclusory statements, and to determine whether the actual factual allegations plausibly support the claim for relief. See Moss, 572 F.3d at 969 (citing Iqbal).[5]

In that light, Plaintiff makes the following actual factual allegations. At the time Plaintiff brought this action he was in custody pending trial in a criminal action in this district: United States v. Krug, CR 09-1148-GHK. [Cpt. ¶ 1.] In 2000 or 2001, Plaintiff created a website called ", " which he later renamed "" [Cpt. ¶ 6.] The website presents Plaintiff's views on the American system of criminal justice and the United States Department of Justice. [Id.] Over a number of years while Plaintiff was in custody, Wayne Creel helped Plaintiff maintain the website. [Opp. Exhibit (" Ex.") A.] Plaintiff and Creel have never met face to face. [Id.] Plaintiff would send material to Creel, and Creel would review the material for grammatical errors (but not substantive content) and post the material to the website. [ Id. ]

In June of 2012, Plaintiff added " Enclosure 79" to [Cpt. ¶ 8.] On or about July 27, 2012, Defendants visited the residence of Wayne Creel, without calling ahead or making an appointment at a time when Creel was not there and only his wife was at home. [Cpt. ¶ ¶ 8-9.] As a result of that visit and what Defendants later said to Creel's attorney, Creel immediately ended his ten-year relationship with Plaintiff, which prevented Plaintiff from posting additional documents to his website until he could locate someone else willing to help him. [Cpt. ¶ 9.]

Plaintiff also makes the following conclusory statements not supported by his actual factual allegations: (1) As a result of Plaintiff's posting of " Enclosure 79" to his website, " certain high-ranking federal government employees -- whose names [Plaintiff] does not currently know -- informed the defendants that they would very much appreciate the defendants doing whatever was necessary so that no longer existed, . . ." [Cpt. ¶ 8.] (2) Defendants visited Creel's home " after becoming certain that he was not there." [Id.] Based on these factual allegations and conclusory statements, Plaintiff asserts his First Amendment retaliation claims against Defendants.


Plaintiff has successfully pled (and Defendants do not dispute) that he was " engaged in constitutionally protected activity" in the form of posting controversial content to his website. However, his actual factual allegations do not plausibly support the other two elements of his claim.[6] First, even if Defendants' actions had a chilling effect on Mr. and Mrs. Creel, this, in itself does not plausibly support the inference that these actions caused Plaintiff " to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity." On the contrary, Plaintiff, after reiterating that Defendants' actions did nothing to impede his free speech in regard to the content already posted on his website, goes on to clarify that Defendants' actions did not " chill" his further exercise of his First Amendment rights by seeking to post new content. Instead, the effect of Defendants' actions on Mr. Creel in July of 2012 simply delayed Plaintiff from being able to post further content until July of 2013, when he found someone else to assist him; as soon as he found such assistance he continued his posting activities. [Opp. at 4-6.] Thus, Defendants' actions did not have a chilling effect on Plaintiff, and there is no basis for inferring that they would have chilled a person of reasonable firmness in Plaintiff's position.

Furthermore, Plaintiff's actual factual allegations do not plausibly support the inference that Defendants' actions in contacting Mr. and Mrs. Creel were substantially motivated as a response to Plaintiff's exercise of freedom of speech in posting content to his website. Specifically, Plaintiff's apparent belief that Attorney General Holder was so upset by " Enclosure 79" that he, or any other high-ranking official, ordered Defendants to do anything necessary to shut down is not plausibly supported by Plaintiff's factual allegations. [Opp. at 7.] Plaintiff has made no factual allegations to support the conclusion that the Attorney General was aware of his website, much less that he ordered Defendants to shut it down. In any event, as Plaintiff concedes, Defendants did not cause his website to be shut down, and Creel allegedly stated that Defendants did not directly or indirectly ask him to shut down the website, that they were pleasant and not threatening, and that they simply asked about whether Creel knew about Plaintiff threatening judges or knew that Plaintiff was about to be released from custody. [Opp. at 4, Opp. Ex. A.] This court may take judicial notice of the fact that, at the time Defendants visited Creel's home, Plaintiff was under indictment for threatening to assault and murder an Assistant United States Attorney, a charge on which he was subsequently convicted and sentenced. [Rep. Exs. B, C.] In light of that fact, it is plausible to infer that Defendants' attempts to speak with Creel about Plaintiff were motivated by the charges pending against him (namely, that he had made criminal threats against a Federal official); it is not plausible to infer that Defendants' actions were substantially motivated by the response of the Attorney General or other high-ranking officials to a post on Plaintiff's website or as retaliation for Plaintiff's exercise of freedom of speech in posting content to the website.

Therefore, Plaintiff's Complaint is subject to dismissal for failure to state a First Amendment retaliation claim.[7] Furthermore, it does not appear that Plaintiff can successfully amend, consistently with his factual allegations and the matters discussed above, to state a cognizable claim. Accordingly, the Complaint should be dismissed without leave to amend.[8]


The magistrate judge recommends that the court issue an order: (1) accepting this Report and Recommendation; (2) granting Defendants' motion to dismiss (docket no. 31, filed May 15, 2014); (3) dismissing the Complaint without leave to amend; and (4) dismissing this action, with prejudice, for failure to state a claim.

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