United States District Court, E.D. California
EDWARD B. SPENCER, Plaintiff,
N. FAIRFIELD, et al., Defendants.
ORDER DECLINING TO ADOPT FINDINGS AND
RECOMMENDATIONS, GRANTING MOTION FOR LEAVE TO AMEND, FINDING
THE SECOND AMENDED COMPLAINT STATES A CAUSE OF ACTION, AND
INITIATING SERVICE (DOC. NOS. 16, 19)
B. Spencer (“plaintiff”) is a state prisoner
proceeding pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
The matter was referred to a United States magistrate judge
pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
February 11, 2016, the assigned magistrate judge issued
findings and recommendations recommending this action be
dismissed due to plaintiff’s failure to state a claim
upon which relief may be granted. (Doc. No. 16.) On February
29, 2016, plaintiff filed objections to the findings and
recommendations as well as a motion seeking leave to file a
second amended complaint. (Doc. Nos. 17, 19.) Plaintiff also
lodged a proposed second amended complaint. (Doc. No. 20.)
accordance with the provisions of 28 U.S.C. § 636
(b)(1)(B) and Local Rule 304, the undersigned has conducted a
de novo review of this case. Having carefully
reviewed the entire file, including plaintiff’s
objections to the pending findings and recommendations and
his motion to amend, the undersigned declines to adopt the
findings and recommendations.
complaint, and in his proposed first amended complaint,
plaintiff alleges claims for retaliation against defendants
Correctional Officers Fairfield and Lopez. The magistrate
judge screened the initial complaint and dismissed it for
failure to state a claim and granted leave to amend. (Doc.
No. 8.) Plaintiff filed a first amended complaint on February
17, 2015. (Doc. No. 11.) In the pending findings and
recommendations, the assigned magistrate judge finds
concluded that the first amended complaint failed to state
any cognizable claims, and that the deficiencies could not be
cured by further amendment. Accordingly, the magistrate judge
recommended the complaint be dismissed without further leave
objects to the magistrate’s findings and
recommendations and requests leave to file a second amended
complaint. Plaintiff’s argument in support of his
motion to amend is found in his objections to the findings
and recommendations. (Doc. No. 17.) Therein, plaintiff argues
he should be permitted to further amend the complaint because
his proposed second amended complaint cures the noted
deficiencies in the first amended complaint. Plaintiff has
submitted a second amended complaint for the court’s
consideration. As discussed below, the undersigned finds
plaintiff’s proposed second amended complaint does
state a claim against defendants. Accordingly, the case will
be referred back to the assigned magistrate judge for further
Rule 15(a) of the Federal Rules of Civil Procedure, a party
may amend their pleading once as a matter of course at any
time before a responsive pleading is served. Fed.R.Civ.P.
15(a). Otherwise, a party may amend only by leave of court or
by written consent of the adverse party. Id.
“Rule 15(a) is very liberal and leave to amend
‘shall be freely given when justice so
requires.’” AmerisourceBergen Corp. v.
Dialysis West, Inc., 445 F.3d 1132, 1136 (9th Cir. 2006)
(quoting Fed.R.Civ.P. 15(a)). However, courts “need not
grant leave to amend where the amendment: (1) prejudices the
opposing party; (2) is sought in bad faith; (3) produces an
undue delay in the litigation; or (4) is futile.”
Id. Because plaintiff has already amended his
complaint once, he requires leave of court to file a second
amended complaint. Since this case is before the court for
screening under 28 U.S.C. § 1915A, there is no prejudice
to the opposing party or undue delay in the litigation if
further amendment were to be permitted. Therefore, the only
basis for not permitting amendment is if it is futile.
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.”
Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir.
2005). Accord Watison v. Carter, 668 F.3d 1108,
1114-15 (9th Cir. 2012); Brodheim v. Cry, 584 F.3d
1262, 1269 (9th Cir. 2009). The adverse action need not be an
independent constitutional harm, and the “mere
threat of harm can be an adverse action.”
Watison, 668 F.3d at 1114.
first element for such a claim requires plaintiff to allege
an adverse action. Adverse actions that have been held
sufficient by the Ninth Circuit under this test include
situations where: 1) officers “arbitrarily confiscated,
withheld, and eventually destroyed [a plaintiff’s]
property, threatened to transfer [the plaintiff] to another
correctional institution, and ultimately assaulted him,
” Rhodes, 408 F.3d at 568; 2) an officer
“filed a false disciplinary charge” against
plaintiff, resulting in him being placed in administrative
segregation and having a parole board deny his parole,
Watison, 668 F.3d at 1115; and even 3) where an
officer noted on the denial of an appeal form,
“I’d also like to warn you to be careful what you
write, req[u]est on this form, ” Brodheim v.
Cry, 584 F.3d 1262, 1265-66, 1269-71 (9th Cir. 2009).
Here, plaintiff alleges he was moved to a different housing
block, which housed more violent offenders, two weeks after
filing a prison grievance against defendant Fairfield. (Doc.
No. 20 at ¶¶ 15-17, 44(b).) Given the decisions
cited above, the undersigned concludes that moving an inmate
to a different cell in a different housing block-especially
when it is alleged that block houses more violent inmates and
affords fewer opportunities than the prisoner’s
housing-could be sufficiently adverse to satisfy this element
of the above test.
plaintiff must allege that he engaged in protected conduct.
It is indisputable that filing a prison grievance is
protected conduct under the First Amendment. See
Watison, 668 F.3d at 1114 (citing Rhodes 408
F.3d at 568).
plaintiff must allege a causal connection between the
protected conduct and the adverse action. “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.” Watison, 668 F.3d at 1114 (citing
Pratt v. Rowland , 65 F.3d 802, 808 (9th Cir.
1995)). Here, plaintiff alleged he was transferred between
units in the same prison two weeks after submitting a
prisoner grievance about defendant Fairfield. (Doc. No. 20 at
¶¶ 15-17.) Plaintiff also alleges when he requested
to be allowed to move into an empty bunk in another
inmate’s cell instead of being transferred, he was
refused and told by defendants, “We have accommodated
you enough.” (Doc. No. 20 at ¶ 30.) The alleged
housing transfer is sufficiently close in time to the
protected conduct for a retaliatory intent to be inferred and
is sufficient to survive dismissal at this stage of the
plaintiff alleges this retaliatory conduct had a chilling
effect on both his and other prisoner’s exercise of
their First Amendment rights. (Doc. No. 20 at ¶
44(a)-(h).) This is in part because plaintiff alleges that
the two units house offenders of different security levels
(Doc. No. 20 at ¶ 44(b)), because one unit has fewer
dayroom activities than the other (Doc. No. 20 at ¶
44(d)), and because such transfers may deprive inmates of
contact with friends they have developed in a given housing
unit (Doc. No. 20 at ¶ 44(e)).
plaintiff alleges this transfer did not advance a legitimate
penological goal, because the reason given by defendants-that
they needed a full cell into which to transfer a new
prisoner-was belied by their refusal of plaintiff’s
offer to share a double-occupancy cell with another prisoner
who was living alone, thereby freeing up a full cell. (Doc.
No. 20 at ¶ 20-32.) The Ninth Circuit has noted the
factors the Supreme Court has announced may be considered in
analyzing this prong of the applicable test: 1) whether there
is a valid rational connection between the regulation or
decision at issue and a legitimate, neutral government
interest put forward to justify it; 2) the existence of
alternative means of inmates exercising their First Amendment
rights; 3) the impact accommodation of the right will have on
guards, other inmates, and the allocation of prison resources
generally; and 4) the absence of ready alternative available
to the prison for achieving their objectives.
Brodheim, 584 F.3d at 1272 (citing Shaw v.
Murphy, 532 U.S. 223, 228 (2001)).
undersigned concludes plaintiff has pleaded sufficient facts,
which if taken as true and when considering the timing,
suggest his housing transfer was retaliatory. Defendants may
well be able to provide a legitimate penological reason for
the transfer that defeats plaintiff’s retaliation
claim. However, plaintiff has provided enough facts to
suggest he was given a reason which, assuming the truth of
the facts plaintiff states and drawing the appropriate
inferences in his favor, was pretextual. Indeed, the Ninth
Circuit has found this prong satisfied at the pleading stage
when a plaintiff successfully pleads the conduct at issue is