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Rials v. Avalos

United States District Court, N.D. California

May 30, 2017

DAISY AVALOS, Defendant.


          HAYWOOD S. GILLIAM, JR. United States District Judge


         Plaintiff, an inmate at Salinas Valley State Prison (“SVSP”) in Soledad, California, filed this pro se civil rights action pursuant to 42 U.S.C. § 1983. His second amended complaint (Dkt. No. 12) is now before the Court for review under 28 U.S.C. § 1915A.


         A. Standard of Review

         A federal court must engage in a preliminary screening of any case in which a prisoner seeks redress from a governmental entity, or from an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). In its review, the Court must identify any cognizable claims, and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b) (1), (2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

         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.” Fed.R.Civ.P. 8(a)(2). “Specific facts are not necessary; the statement need only ‘give the defendant fair notice of what the . . . . claim is and the grounds upon which it rests.'” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). “[A] plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its face.” Id. at 570.

         To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a right secured by the Constitution or laws of the United States was violated; and (2) that the violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

         B. Complaint

         During March 2016, Correctional Officer Daisy Avalos twice stopped Plaintiff on his way back from his job assignment and searched his person, both times finding Plaintiff in possession of two personal photos. Dkt. No. 12 at 3. Plaintiff informed CO Avalos that the two photos were religious artifacts which he uses in his daily religious practice. Id. at 3 and 12. After the first search, CO Avalos verbally counseled Plaintiff that he was prohibited from taking outside of his cell any type of personal items not pertaining to his job duties. Id. at 14. CO Avalos informed Plaintiff that future and similar violations would result in progressive discipline and/or removal from his current job assignment. Id. On March 29, 2016, CO Avalos issued Plaintiff a Rules Violation Report (“RVR”) with respect to the second search, which had been conducted on March 15, 2016. The RVR charged Plaintiff with disobeying, on March 15, 2016, CO Avalos' order to refrain from bringing personal items outside of his cell that were unrelated to his job duties. Id. Prior to and after March 2016, Plaintiff witnessed CO Avalos discover other inmates who were going to and from work assignments in possession of non-work related personal religious items, yet CO Avalos did not prohibit them from possessing these items or issue them RVRs for possessing these items. Id. at 4. Plaintiff alleges that CO Avalos was motivated by ill will against Plaintiff because Plaintiff had, in June 2015, successfully filed an unrelated complaint with California's Department of Industrial Relations (“DIR”) against SVSP for failing to provide inmates with appropriate footwear while working their assigned jobs. Id. at 4 and 19‒20. Plaintiff alleges that CO Avalos' RVR violated his right to equal protection.

         “The Equal Protection Clause requires the State to treat all similarly situated people equally.” Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008). Liberally construed, Plaintiff's second amended complaint states a cognizable “class of one” equal protection claim. Gerhart v. Lake County Montana, 637 F.3d 1013, 1020 (9th Cir. 2011) (plaintiff may establish equal protection “class of one” claim by showing that similarly situated individuals were intentionally treated differently without a rational relationship to a legitimate state purpose).

         Plaintiff's allegation that CO Avalos issued him an RVR in retaliation for his filing a successful complaint with the California DIR may also state a claim for retaliation in violation of the First Amendment. “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) (footnote omitted). However, Plaintiff's allegations that CO Avalos bore him ill will because of his DIR complaint, and issued an RVR in retaliation are conclusory and vague. But the Court cannot say at this stage that no set of facts could be alleged to cure the deficiencies in this First Amendment retaliation claim against CO Avalos. Accordingly, this claim is DISMISSED with leave to amend to correct the identified deficiencies if Plaintiff can truthfully do so. Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996) (“A complaint should not be dismissed unless it appears beyond doubt that plaintiff can prove no set of facts that would entitle her to relief.”)


         1. Plaintiff has stated a cognizable equal protection claim against Correctional Officer Daisy Avalos. Plaintiff's First Amendment retaliation claim against CO Avalos is DISMISSED with leave to amend. If Plaintiff wishes to amend his First Amendment retaliation claim against CO Avalos, he shall file a third amended complaint within twenty-eight (28) days of the date of this order. The third amended complaint must include the caption and civil case number used in this order, Case No. C 16-04771 HSG (PR) and the words “THIRD AMENDED COMPLAINT” on the first page. If using the court form complaint, Plaintiff must answer all the questions on the form in order for the action to proceed. Because an amended complaint completely replaces the previous complaints, Plaintiff must include in his third amended complaint all the claims he wishes to present, including the equal protection claim found cognizable in this order, and all of the defendants he wishes to sue. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 ...

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