United States District Court, C.D. California, Western Division
December 2, 2014
LAKEITH LEROY McCOY, Plaintiff,
J. CURIEL et al., Defendants
LaKeith Leroy McCoy, Plaintiff, Pro se, Tehachapi, CA.
For J. Curiel, Appeals Corrdinator, individual capacity, Defendant: Andrew M Gibson, CAAG - Office of the Attorney General, Los Angeles, CA.
DOUGLAS F. McCORMICK, United States Magistrate Judge.
Report and Recommendation of United States Magistrate Judge
This Report and Recommendation is submitted to the Honorable R. Gary Klausner, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
On January 28, 2014, Plaintiff, a state prisoner currently incarcerated at the California Correctional Institute (" CCI"), filed a pro se civil rights complaint, pursuant to 42 U.S.C. § 1983. Dkt. 3. After screening the Complaint in accordance with 28 U.S.C. § § 1915(e)(2) and 1915A, the Court dismissed the Complaint with leave to amend for failure to state a viable First Amendment claim for violation of the right to petition the government for redress of grievances. Dkt. 5.
On March 17, 2014, Petitioner filed a First Amended Complaint (" FAC"). Dkt. 6. Defendant J. Curiel (" Defendant") is named in his individual capacity only. Id. at 6. The FAC alleges that Defendant's title is " Correctional Counselor" and that he " held the rank of appeals coordinator" and as such " was legally responsible for screening all inmate appeals." Id. Plaintiff alleges that Defendant violated his First Amendment right to petition the government for redress of grievances. Id. More specifically, Plaintiff alleges that Defendant retaliated against him for using the prison grievance system by refusing to process his inmate grievances. Id. at 8.
On August 21, 2014, Defendant filed a motion to dismiss the FAC under Fed.R.Civ.P. 12(b)(6). Dkt. 16. On September 15, 2014, Plaintiff filed an opposition to Defendant's motion to dismiss. Dkt. 20 (" Opposition"). On September 29, 2014, Defendant filed a reply to Plaintiff's opposition. Dkt. 21.
B. Factual Allegations of the FAC
On March 5, 2012, Plaintiff filed a prison administrative grievance concerning his alleged inability to use the CCI prison law library. FAC ¶ .P 1-3, 9-14. Before his March 5, 2012 grievance, Defendant had returned several of Plaintiff's administrative grievances for failure to attach a CDCR Form 22. Id. .P.P 4-7. Plaintiff contends that he repeatedly attempted, without success, to obtain a CDCR Form 22 before submitting the March 5, 2012 appeal. Id. ¶ 9. In his appeal, Plaintiff explained that " I cannot attach appropriate docs because the staff will not respond." Opposition at 14. On March 14, 2012, Defendant returned Plaintiff's appeal, informing Plaintiff that he first " had to submit a CDC[R] Form 22 to the law librarian for a response." Id. ¶ 10.
Plaintiff then " immediately sent the appeal back to [Defendant] because Defendant had not paid attention to the facts of what was occurring." Id. ¶ 11. Defendant returned this resubmitted appeal on March 27, 2012, stating in an accompanying letter as follows: " Follow the directions given on the Form 695 dated 3/14/12. Do not resubmit the form unless you follow my instructions. Failure to do so will result in the cancellation of this appeal and it will not be returned to you." Id.; Opposition at 15.
Plaintiff claims that his " right to use the prison's grievance system was chilled by Defendant's threat of not returning his appeal, " and that he " no longer used the prison's grievance system due to Defendant's conduct." FAC ¶ 12; see also id. ¶ 16 (" Defendant used the threat of not returning Plaintiff's appeal as a tool to force Plaintiff to stop submitting appeals."). He also alleges that " Defendant's actions did not advance a legitimate correctional goal." Id. ¶ 13.
A. Standard of Review
A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a claim. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A complaint may be dismissed under Rule 12(b)(6) for failure to state a claim based on the lack of a cognizable legal theory or the absence of facts alleged under such a theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). When a plaintiff appears pro se, the Court must construe the allegations of the complaint liberally and must afford a plaintiff the benefit of any doubt. See Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). Additionally, the Court must accept Plaintiff's factual allegations as true and view all inferences in a light most favorable to Plaintiff. See Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1990).
In order to survive a motion to dismiss under Rule 12(b)(6), " a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). " A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. ( citing Twombly,
550 U.S. at 556). This plausibility standard is not a probability requirement, but does ask for more than mere possibility; if a complaint pleads facts " merely consistent with" a theory of liability, it falls short of " the line between possibility and plausibility." Id. ( quoting Twombly, 550 U.S. at 557).
The Supreme Court has set out a two-pronged approach for reviewing possible failure to state a claim. Id. at 678-79; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969-70 (9th Cir. 2009). First, the reviewing court may identify those statements in a complaint that are actually conclusions, even if presented as factual allegations.
Iqbal, 556 U.S. at 678. Such conclusory statements (unlike proper factual allegations) are not entitled to a presumption of truth. Id. In this context it is the conclusory nature of the statements (rather than any fanciful or nonsensical nature) " that disentitles them to the presumption of truth." Id. at 681. Second, the reviewing court presumes the truth of any remaining " well-pleaded factual allegations, " and determines whether these factual allegations and reasonable inferences from them plausibly support a claim for relief. Id. at 679;
see also Moss, 572 F.3d at 969-70.
If the Court finds that the complaint or a portion thereof should be dismissed for failure to state a claim, the Court has discretion to dismiss with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000) (en banc). Leave to amend should be granted if it appears possible that the defects in the complaint could be corrected, especially if a plaintiff is pro se. Id. at 1130-31; see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (noting that " [a] pro se litigant must be given leave to amend his or her complaint, and some notice of its deficiencies, unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment") (citing Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)). However, 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 1105-06; see, e.g., Chaset v. Fleer/Skybox Int'l, 300 F.3d 1083, 1088 (9th Cir. 2002) (holding that " there is no need to prolong the litigation by permitting further amendment" where the " basic flaw" in the pleading cannot be cured by amendment); Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1039 (9th Cir. 2002) (holding that " [b]ecause any amendment would be futile, there was no need to prolong the litigation by permitting further amendment").
B. The FAC Fails to State a Viable First Amendment Retaliation Claim
The First Amendment provides a right to petition the government for redress of grievances. See Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989) (citing California Motor Transp. Co. v. Trucking Unltd., 404 U.S. 508, 510, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972). This right includes an inmate's right to file prison grievances. Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) (quoting Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005)). Deliberate retaliation by a state actor against an individual's exercise of this right is actionable under section 1983.
Morgan, 874 F.2d at 1314; see also Rhodes, 408 F.3d at 567.
To state a viable claim for retaliation in violation of the First Amendment in the prison context, a plaintiff must show five basic elements: " (1) [a]n 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."
Brodheim, 584 F.3d at 1269 ( quoting Rhodes, 408 F.3d at 567-68). To satisfy the causation element, plaintiff must show that his constitutionally-protected conduct was a " substantial or motivating factor" for the alleged retaliatory action. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977);
Brodheim, 584 F.3d at 1271. The chilling inquiry is governed by an objective standard, and " the infliction of harms other than a total chilling effect can [also] establish liability" for retaliatory conduct.
See, e.g., Rhodes, 408 F.3d at 569; Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000); Mendocino Envtl. Center v. Mendocino Cty., 192 F.3d 1283, 1300 (9th Cir. 1999). Plaintiff bears the burden of pleading and proving the absence of legitimate correctional goals for the conduct of which he complains. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995).
Defendant contends that Plaintiff fails to state a claim for retaliation in three respects. First, Defendant contends that the alleged threat to not return Plaintiff's appeal is not an " adverse action" sufficient to establish the first element. Motion at 6-7. Second, Defendant contends that his actions were not because of Plaintiff's protected activity, but rather were in response to Plaintiff's failure to comply with prison rules. Id. at 7-8. Finally, Defendant contends that Plaintiff has not demonstrated that Defendant's conduct did not reasonably advance a legitimate correctional goal. Id. at 8-9. The Court agrees with Defendant's second and third arguments.
Although a threat to cancel an appeal could arguably be considered an adverse action, Plaintiff has failed to allege that Defendant took this adverse action against him " because of" Plaintiff's protected conduct. Rather, it is clear from the FAC's allegations and the documents attached to Plaintiff's opposition that Defendant informed Plaintiff that he would not process his appeal because it did not comply with the CDCR's regulations regarding the submission of inmate appeals. Thus, although Plaintiff alleges that Defendant " threatened" to not return his appeal, Defendant's threat was premised on Plaintiff's continued failure to follow Defendant's directions, not upon Plaintiff's use of the prison grievance system. Moreover, Defendant did not threaten Plaintiff with any future reprisals if he refiled the appeal. Rather, Plaintiff was informed that he was free to refile the appeal as long as he complied with the CDCR's regulations. Therefore, even when Plaintiff's allegations are taken as true, the Court can find no support for a plausible claim that Plaintiff was retaliated against " because of" his engagement in protected conduct.
Additionally, Plaintiff makes nothing more than a conclusory allegation to show that Defendant's adverse action did not advance a legitimate penological purpose. In fact, as the documents submitted with Plaintiff's opposition demonstrate, Defendant rejected Plaintiff's appeals because he did not submit the required CDCR Form 22. The Ninth Circuit has repeatedly found that ensuring compliance with a prison's procedural rules for filing of prison grievances is a legitimate penological interest. See, e.g., Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (noting that " legitimate penological goals" include " preserving institutional order and discipline"); Heilman v. Sanchez, 583 Fed.Appx. 837, 2014 WL 3703949, at *2 (9th Cir. 2014) (holding that, where prisoner failed to properly file his prison grievance, the " Appeals Abuse Warning" memorandum issued against him " served legitimate correctional goals" and could therefore not support a retaliation claim). Informing Plaintiff that his continued failure to comply with the CDCR's mandatory procedural rules for filing grievances would result in his appeal being cancelled serves the legitimate correctional goal of ensuring compliance with the institution's grievance system.
In sum, Defendant may have ignored or overlooked Plaintiff's statement in his March 5 appeal that " I cannot attach appropriate docs because the staff will not respond." See Opposition at 14. Yet the Court cannot conclude that Defendant's possible mistake, without more, provides a basis for a retaliation claim. Plaintiff's FAC accordingly fails to state a claim for relief.
C. Leave to Amend
When the Court originally dismissed the Complaint, it cited not only Plaintiff's failure to show that Defendant's threat was due to Plaintiff's protected activity (as opposed to Plaintiff's failure to follow the rules) but also Plaintiff's failure to allege that Defendant's conduct did not advance a legitimate correctional goal. Dkt. 5 at 4-5. Having been given leave to amend, Plaintiff's allegations in the FAC are largely identical to those of the original complaint. It is thus clear that the deficiencies of the FAC cannot be cured by amendment, and the Court therefore recommends that the FAC be dismissed with prejudice.
IT THEREFORE IS RECOMMENDED that the District Court issue an order: (1) approving and adopting this Report and Recommendation; (2) granting Defendant's motion to dismiss; and (3) directing that judgment be entered dismissing this action with prejudice.