United States District Court, E.D. California
JASPER F. WILSON, Plaintiff,
JEFFREY A. BEARD, et al., Defendants.
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
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
Application to Proceed In Forma Pauperis
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).
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. §
“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and internal quotations omitted), superseded by statute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
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)).
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).
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.
First Amendment Claim
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).
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