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Wilson v. Beard

United States District Court, E.D. California

May 2, 2017

JASPER F. WILSON, Plaintiff,
v.
JEFFREY A. BEARD, et al., Defendants.

          ORDER

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. In addition to filing a complaint (ECF No. 1), plaintiff has filed an application to proceed in forma pauperis under 28 U.S.C. § 1915. ECF No. 2.

         I. Application to Proceed In Forma Pauperis

         Plaintiff's application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. § 1915(b)(1) and (2).

         II. Screening Requirements

         The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious, ” that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

         A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). “[A] judge may dismiss [in forma pauperis] claims which are based on indisputably meritless legal theories or whose factual contentions are clearly baseless.” Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989) (citation and internal quotations omitted), superseded by statute on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. Id.

         “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for failure to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the speculative level.” Id. (citations omitted). “[T]he pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure ' 1216 (3d ed. 2004)).

         “[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 (2009) (quoting Bell Atl. Corp., 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.” Id. (citing Bell Atl. Corp., 550 U.S. at 556). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), as well as construe the pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

         III. Screening Order

         In his complaint, plaintiff alleges that the named defendants have violated his constitutional rights by cancelling one of his prison grievance appeals. ECF No. 1 at 25-26. He claims that this cancellation: (1) violated his First Amendment rights by “chilling” the exercise of a potentially meritorious conditions of confinement claim; (2) violated his Fourteenth Amendment right to due process; and (3) violated his Sixth Amendment rights by “chilling” the testimony of unspecified inmate witnesses who would otherwise have corroborated his condition of confinement claims. Id. at 24-26. He also claims that defendants' cancellation of this grievance was an act of “adverse retaliation.” Id. at 25. These allegations do not state a viable claim.

         A. First Amendment Claim

         Inmates have a First Amendment right to file grievances against prison officials without being retaliated against. Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012). To establish retaliation, a plaintiff must allege that: (1) he engaged in protected conduct; (2) the defendant(s) took adverse action against the plaintiff; (3) there was a causal connection between the adverse action and the protected activity; (4) the adverse action would chill a “person of ordinary firmness” from taking future protected activity; and (5) the adverse action did not advance legitimate correctional goals. Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005).

         Prison regulations provide legitimate reasons for cancelling an inmate's grievance appeal. See Cal. Code Regs., tit. 15, § 3084.6(c). The documents attached to the complaint indicate that the appeal in this case was cancelled due to plaintiff's failure to meet deadlines for timely submission. ECF No. 1 at 39. This stated reason is not dispositive of whether the denial was retaliatory or not, but its existence does mean that plaintiff cannot establish retaliation simply by the pointing to the fact of cancellation. Grievance decisions that are simply adverse or wrong do not support a First Amendment claim. See Wright v. Shannon, No. 1:05-cv-01485-LJO-YNP PC, 2010 U.S. Dist. LEXIS 14598, 2010 WL 445203, at *5 (E.D. Cal. Feb. 2, 2010) (“Even assuming that Plaintiff proves all the relevant facts in his favor, that he had legitimate grievances that were erroneously denied or ignored, the First Amendment ...


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