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Witkin v. Swarthout

United States District Court, E.D. California

February 4, 2015

MICHAEL WITKIN, Plaintiff,
v.
G. SWARTHOUT, et al., Defendants.

ORDER AND FINDINGS AND RECOMMENDATIONS

KENDALL J. NEWMAN, Magistrate Judge.

I. Introduction

Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed two motions for partial summary judgment, and defendants filed a motion to dismiss. In his first amended complaint ("FAC"), plaintiff raises multiple First Amendment retaliation claims against defendants Swarthout, Young, Popovits, Sanchez, Wilkinson, and Kosher, and Eighth Amendment claims against defendants Sanchez, Popovits, Young, and Swarthout, based on the alleged deprivation of outdoor exercise. As set forth below, the undersigned denies plaintiff's motions for partial summary judgment without prejudice, and finds that defendants' motion to dismiss should be granted in part and denied in part. Further, plaintiff's motion to strike defendants' reply is denied.

II. Motions for Partial Summary Judgment

On March 7, 2014, plaintiff filed a motion for partial summary judgment, which was served by mail on the office of the Attorney General on March 5, 2014. However, defendants had not yet been served. Counsel for defendants accepted waiver of service on March 21, 2014; thus, defendants had sixty days from March 21, 2014, in which to file a responsive pleading. The service of plaintiff's motion on the office of the Attorney General was premature and ineffective. Thus, plaintiff's March 7, 2014 motion for partial summary judgment is denied without prejudice.

On July 8, 2014, plaintiff renewed his motion for partial summary judgment, claiming there "is no dispute about any fact that would affect the outcome of this case." (ECF No. 25 at 1.) However, as defendants contend in their opposition, their motion to dismiss is pending; no defendant has yet filed an answer; no discovery has yet taken place, and no discovery and scheduling order has issued. (ECF No. 26.) Defendants have not taken plaintiff's deposition.

By order filed January 2, 2014, the undersigned found that plaintiff stated potentially cognizable claims for relief based on plaintiff's Eighth Amendment and First Amendment retaliation allegations against defendants Swarthout, Young, Popovits, Sanchez, Wilkinson, and Kosher. (ECF No. 11 at 2.) Such claims involve the development of facts and evidence through discovery. For all of these reasons, the undersigned finds that plaintiff's renewed motion for partial summary judgment is premature. Plaintiff's motion is denied without prejudice to its renewal once the court has issued a discovery and scheduling order, and all discovery has been completed. In other words, plaintiff shall file no further motions for summary judgment until after discovery has closed.

III. Motion to Dismiss

Pending before the court is defendants' motion to dismiss for failure to state a claim. Fed.R.Civ.P. 12(b)(6). Plaintiff filed an opposition, and defendants filed a reply. On July 8, 2014, plaintiff filed a motion to strike portions of defendants' reply. For the following reasons, the undersigned recommends that defendants' motion should be granted in part and denied in part, and plaintiff should be granted leave to file a second amended complaint. Plaintiff's motion to strike defendants' reply is denied.

A. Legal Standard

Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). In considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus , 551 U.S. 89 (2007), and construe the pleading in the light most favorable to the plaintiff. Jenkins v. McKeithen , 395 U.S. 411, 421 (1969); Meek v. County of Riverside , 183 F.3d 962, 965 (9th Cir. 1999). Still, to survive dismissal for failure to state a claim, a pro se complaint must contain more than "naked assertions, " "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555-57 (2007). In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). Furthermore, a claim upon which the court can grant relief must have facial plausibility. Twombly , 550 U.S. at 570. "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." Iqbal , 556 U.S. at 678. Attachments to a complaint are considered to be part of the complaint for purposes of a motion to dismiss for failure to state a claim. Hal Roach Studios v. Richard Reiner & Co. , 896 F.2d 1542, 1555 n.19 (9th Cir. 1990).

A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Hishon v. King & Spaulding , 467 U.S. 69, 73 (1984). In general, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner , 404 U.S. 519, 520 (1972). The court has an obligation to construe such pleadings liberally. Bretz v. Kelman , 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). However, the court's liberal interpretation of a pro se complaint may not supply essential elements of the claim that were not pled. Ivey v. Board of Regents of Univ. of Alaska , 673 F.2d 266, 268 (9th Cir. 1982).

B. Plaintiff's Alleged Retaliation Claims

First, the undersigned will set forth the standards governing First Amendment retaliation standards, and will then address the claims as to each defendant.

"Prisoners have a First Amendment right to file grievances against prison officials and to be free from retaliation for doing so." Watison v. Carter , 668 F.3d 1108, 1114 (9th Cir. 2012) (citing Brodheim v. Cry. , 584 F.3d 1262, 1269 (9th Cir. 2009)). A retaliation claim has five elements:

First, the plaintiff must allege that the retaliated-against conduct is protected. The filing of an inmate grievance is protected conduct. Rhodes v. Robinson , 408 F.3d 559, 568 (9th Cir. 2005). Second, the plaintiff must claim the defendant took adverse action against the plaintiff. Id. at 567. The adverse action need not be an independent constitutional violation. Pratt v. Rowland , 65 F.3d 802, 806 (9th Cir.1995). "[T]he mere threat of harm can be an adverse action...." Brodheim , 584 F.3d at 1270.
Third, the 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. See Pratt , 65 F.3d at 808 ("timing can properly be considered as circumstantial evidence of retaliatory intent"); Murphy v. Lane , 833 F.2d 106, 108-09 (7th Cir. 1987).
Fourth, the plaintiff must allege that the "official's acts would chill or silence a person of ordinary firmness from future First Amendment activities." Robinson , 408 F.3d at 568 (internal quotation marks and emphasis omitted). "[A] plaintiff who fails to allege a chilling effect may still state a claim if he alleges he suffered some other harm, " Brodheim , 584 F.3d at 1269, that is "more than minimal, " Robinson , 408 F.3d at 568 n.11. That the retaliatory conduct did not chill the plaintiff from suing the alleged retaliator does not defeat the claim at the motion to dismiss stage.
Fifth, the plaintiff must allege "that the prison authorities' retaliatory action did not advance legitimate goals of the correctional institution...." Rizzo v. Dawson , 778 F.2d 527, 532 (9th Cir. 1985). A plaintiff successfully pleads this element by alleging, in addition to a retaliatory motive, that the defendant's actions were arbitrary and capricious, Id., or that they were "unnecessary to the maintenance of the institution." Franklin v. Murphy , 745 F.2d 1221, 1230 (9th Cir. 1984).

Watison , 668 F.3d at 1114.

In order to state a retaliation claim, a plaintiff must plead facts which suggest that retaliation for the exercise of protected conduct was the "substantial" or "motivating" factor behind the defendant's conduct. See Soranno's Gasco, Inc. v. Morgan , 874 F.2d 1310, 1314 (9th Cir. 1989). The plaintiff must also plead facts which suggest an absence of legitimate correctional goals for the conduct he contends was retaliatory. Pratt v. Rowland , 65 F.3d 802, 806 (9th Cir. 1995), citing Dawson , 778 F.2d at 532. Verbal harassment alone is insufficient to state a claim. See Oltarzewski v. Ruggiero , 830 F.2d 136, 139 (9th Cir. 1987). Even threats of bodily injury are insufficient to state a claim, because a mere naked threat is not the equivalent of doing the act itself. See Gaut v. Sunn , 810 F.2d 923, 925 (9th Cir. 1987). Mere conclusions of hypothetical retaliation will not suffice; a prisoner must "allege specific facts showing retaliation because of the exercise of the prisoner's constitutional rights." Frazier v. Dubois , 922 F.2d 560, 562 n.1 (10th Cir. 1990). Adverse action is action that "would chill a person of ordinary firmness" from engaging in that activity. Pinard v. Clatskanie School Dist. , 467 F.3d 755, 770 (9th Cir. 2006); White v. Lee , 227 F.3d 1214, 1228 (9th Cir. 2000). Both litigation in court and filing inmate grievances are protected activities and it is impermissible for prison officials to retaliate against inmates for engaging in these activities.

The court turns now to plaintiff's specific claims, addressed by defendant and topic.

1. Young

Plaintiff dismisses his retaliation claim against defendant Young. (ECF No. 20 at 6.) Accordingly, plaintiff's retaliation claim against defendant Young is dismissed from this action. Fed.R.Civ.P. 41(a).

2. Kosher

Defendants move to dismiss, to the extent raised, plaintiff's claims that defendant Kosher retaliated against plaintiff based on verbal complaints about the conditions of confinement. (ECF No. 18-1 at 6.) However, in his opposition, plaintiff clarified that he is not claiming that defendant Kosher retaliated against plaintiff based on plaintiff's verbal complaints on November 7, 2012. (ECF No. 20 at 4.) Thus, this action proceeds on plaintiff's allegations that Kosher retaliated against plaintiff based on plaintiff's grievances against Kosher filed on November 7 and 9, 2012, and February 27, 2013. (Id.)

3. Popovits and Swarthout: Alleged Retaliation re Outdoor Exercise

Plaintiff contends that defendants Popovits and Warden Swarthout retaliated against plaintiff "because of all the grievances he filed, " by refusing to restore plaintiff's Eighth Amendment rights when plaintiff put them on notice of the constitutional violation. (ECF No. 9 at 14.) Defendant Popovits is defendant Sanchez' supervisor. Plaintiff asserts that on March 26, 2012, he sent Warden Swarthout a CDCR 22 form informing him that plaintiff was being deprived of outdoor exercise. On March 27, 2012, plaintiff "contacted Swarthout by legal mail, for a Supervisor's Review'" of the March 27, 2012 decision by Sanchez in which Sanchez sustained his decision to deny plaintiff outdoor exercise for ninety days. (ECF No. 9 at 10.) On April 4, 2012, plaintiff sent a CDCR 22 form to Warden Swarthout informing him that plaintiff's constitutional right to outdoor exercise was still being violated. On April 11, 2012, plaintiff sent Popovits a CDCR 22 form regarding the deprivation of outdoor exercise. (ECF No. 9 at 10.) On April 17, 2012, Popovits responded, allegedly claiming plaintiff's access to outdoor exercise is a "privilege." (ECF No. 9 at 11.) Plaintiff contends that California law required each supervising defendant to restore plaintiff's Eighth Amendment to exercise by March 18. (ECF No. 9 at 11.)

In his opposition, plaintiff contends that defendants Swarthout and Popovits were required to correct plaintiff's allegedly illegal punishment pursuant to 15 C.C.R. § 3322(c). Plaintiff alleges that their failure to do so constitutes retaliation.

Defendants contend that plaintiff failed to allege facts demonstrating that either defendant Swarthout or Popovits caused plaintiff to lose his access to outdoor exercise, and that any purported liability based on a theory of respondeat superior is unavailing based on plaintiff's failure to allege facts demonstrating their personal involvement in the alleged deprivation of such rights. In addition, defendants contend that plaintiff cannot meet the fifth prong of Robinson, because plaintiff's outdoor exercise privileges were revoked as punishment following plaintiff's rules violation for disruptive behavior. Defendants argue that disciplining an inmate for disruptive behavior serves the legitimate correctional goal of maintaining the "peaceable operation of the prison." (ECF No. 18-1 at 9, quoting Bradley v. Hall , 64 F.3d 1276, 1281 (9th Cir. ...


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