United States District Court, E.D. California
FINDINGS AND RECOMMENDATION REGARDING DEFENDANT'S MOTION TO DISMISS PURSUANT TO F.R.C.P. RULE 12(B)(6) [ECF No. 23]
DENNIS L. BECK, Magistrate Judge.
Plaintiff Timothy Johnson ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action. Plaintiff filed this action on January 3, 2013. On October 9, 2013, the Court screened the complaint and found it failed to state a cognizable claim. Plaintiff was granted an opportunity to file an amended complaint. On October 23, 2013, Plaintiff filed a First Amended Complaint ("FAC"). On October 20, 2014, the Court screened the FAC and found it stated a cognizable claim against Defendant Remotigoe for violation of the First Amendment. The Court granted Plaintiff the opportunity to file an amended complaint or notify the Court of his willingness to proceed on the cognizable claim. On November 17, 2014, Plaintiff notified the Court of his willingness to proceed on the remaining cognizable claim. On December 2, 2014, the Court dismissed all other claims and Defendants and directed Plaintiff to complete and return service documents. On December 31, 2014, the U.S. Marshal Service was ordered to serve the complaint on Defendant Remotigoe. On March 9, 2015, Defendant Remotigoe filed a motion to dismiss the FAC under Fed.R.Civ.P. 12(b)(6) on the ground that Plaintiff failed to state a claim for relief. Plaintiff did not file an opposition. The motion is deemed submitted pursuant to Local Rule 230(1).
I. Summary of First Amended Complaint
Plaintiff is currently incarcerated at the California State Prison in Corcoran, California, where the events giving rise to this action occurred.
Plaintiff alleges the following. Plaintiff states he is a high risk patient who suffers from hypokinesia with a left ventricular hypertrophy. He states his heart only operates at a 40% capacity which requires him to take nitroglycerin pills. He further states he is in the Mental Health Service Delivery System.
On August 27, 2013, Plaintiff was called from his housing unit to the medical clinic for his weekly blood pressure check. As Plaintiff approached the clinic, he stopped Correctional Officer Lopez outside of the clinic and asked him who was working in the clinic that morning. After Plaintiff was informed who was working in the clinic, he notified Lopez that he wished to refuse any medical attention from any staff member who he had filed a complaint against or who he is currently in litigation against. As he was having this conversation with Lopez, Defendant Remotigoe approached. Lopez advised Remotigoe that Plaintiff was refusing treatment. Remotigoe then told Plaintiff, "Johnson, ain't nothing wrong with you. Nurse Tally told me what happened already, so stop being so dramatic and come in the clinic." Plaintiff responded that he "would rather die than to be treated and abused by these medical staff and personnel." Defendant Remotigoe responded, "You have no rights that say you can refuse or pick who you want to be treated by." Plaintiff then asked to speak to a medical supervisor, but his request was denied. Plaintiff then told Remotigoe that he was obstructing his medical care, to which Remotigoe stated, "I ain't got time for this shit! Is you coming in or not?" Plaintiff again asked for a medical supervisor but was denied. Plaintiff then advised Remotigoe that he would be filing a complaint against him, at which time Remotigoe stated, "Read my lips. You are not the only who knows how to file paperwork; I'm not Nurse Tally." Plaintiff states that Remotigoe filed a false rules violation report two days later in retaliation.
II. Fed.R.Civ.P. 12(B)(6)
A. Legal Standard
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)) (quotation marks omitted); Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011); Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The Court must accept the well-pleaded factual allegations as true and draw all reasonable inferences in favor of the non-moving party. Daniels-Hall v. National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010); Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007); Huynh v. Chase Manhattan Bank, 465 F.3d 992, 996-97 (9th Cir. 2006); Morales v. City of Los Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000). Further, although the pleading standard is now higher, the Ninth Circuit has continued to emphasize that prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).
1. First Amendment
a. Legal Standard
Allegations of retaliation against a prisoner's First Amendment rights to speech or to petition the government may support a § 1983 claim. Silva v. Di Vittorio, 658 F.3d 1090, 1104 (9th Cir. 2011); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). "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." ...