United States District Court, E.D. California
ANDREW S. ANDERSEN, Plaintiff,
MARISELA MONTES, et al., Defendants.
FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF
COMPLAINT FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF
[ECF No. 1]
Andrew S. Andersen is appearing pro se and in forma pauperis
in this civil rights action pursuant to 42 U.S.C. §
1983. Plaintiff declined United States Magistrate Judge
jurisdiction; therefore, this matter was referred to a United
States Magistrate Judge pursuant to 28 U.S.C. §
636(b)(1)(B) and Local Rule 302.
filed the instant action on February 19, 2016. On March 15,
2016, the undersigned issued Findings and Recommendations
recommending that the instant action be dismissed for failure
to state a cognizable claim for relief. Plaintiff filed
objections to the Findings and Recommendations on March 31,
2016. On November 9, 2016, United States District Judge Dale
A. Drozd adopted the Findings and Recommendations and
dismissed Plaintiff's due process claims without leave to
amend for failure to state a cognizable claim for relief, but
referred the matter back to the undersigned for further
“screening as to whether plaintiff's complaint
states a cognizable First Amendment retaliation claim or
Establishment Clause/RLUIPA claim and, if not, whether leave
to amend should be granted.”
Court is required to screen complaints brought by persons
proceeding in pro per. 28 U.S.C. § 1915A(a).
Plaintiff's complaint, or any portion thereof, is subject
to dismissal if it is frivolous or malicious, fails to state
a claim on which relief may be granted, or seeks monetary
relief against a defendant who is immune from such relief. 28
U.S.C. § 1915A(b)(1), (2); 28 U.S.C. §
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to relief. . .
.” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations
are not required, but “[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) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Plaintiff must demonstrate that each named defendant
personally participated in the deprivation of his rights.
Iqbal, 556 U.S. at 676-677; Simmons v. Navajo
County, Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010).
persons proceeding pro se are still entitled to have their
pleadings liberally construed and to have any doubt resolved
in their favor, the pleading standard is now higher,
Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.
2012) (citations omitted), and to survive screening,
Plaintiff's claims must be facially plausible, which
requires sufficient factual detail to allow the Court to
reasonably infer that each named defendant is liable for the
misconduct alleged. Iqbal, 556 U.S. at 678-79;
Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th
Cir. 2009). The “sheer possibility that a defendant has
acted unlawfully” is not sufficient, and “facts
that are ‘merely consistent with' a defendant's
liability” falls short of satisfying the plausibility
standard. Iqbal, 556 U.S. at 678; Moss, 572
F.3d at 969.
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)). Also protected by the First
Amendment is the right to pursue civil rights litigation in
federal court without retaliation. Silva v. Di
Vittorio, 658 F.3d 1090, 1104 (9th Cir. 2011).
“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.” Rhodes v. Robinson, 408 F.3d 559,
567-68 (9th Cir. 2005).
regard to any potential retaliation claim, Plaintiff alleges
that Commissioner Montes is in a position of great power and
authority because she determines whether a life inmate can be
released. She abused that power and authority by using the
fact that an inmate made a complaint to the government for
redress of grievances as evidence against that inmate.
Commissioner Montes further abused her power and authority by
threatening Plaintiff ...