United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding pro se and in forma pauperis
with a civil rights action under 42 U.S.C. § 1983.
Plaintiff makes various allegations of interference with his
mail, retaliation, and deprivation of his property. Before
the court is plaintiff's second amended complaint for
screening. For the reasons set forth below, the court finds
plaintiff has stated potentially cognizable claims for
retaliation and violation of plaintiff's access to the
courts against defendant Fleming. The court will order this
case to proceed on those claims and recommend dismissal of
the remaining claims in the second amended complaint.
initiated this action in May 2014 with a civil rights
complaint alleging defendant Fleming interfered with his
mail, including his legal mail, and that Fleming threatened
him. (ECF No. 1.) Plaintiff also named the prison warden and
the director of the California Department of Corrections and
Rehabilitation (“CDCR”) as defendants. On
screening, the court found plaintiff stated potentially
cognizable claims only against defendant Fleming for
interference with his mail. (ECF No. 10.) Fleming moved to
dismiss. The court granted the motion to dismiss on the
grounds that plaintiff failed to state a cognizable claim for
relief and permitted plaintiff an opportunity to amend his
complaint. (ECF No. 34.)
23, 2016, plaintiff filed a first amended complaint. (ECF No.
35.) In that complaint, plaintiff reiterated some claims
against defendant Fleming and added new ones. In addition,
plaintiff added claims against new defendants Beard,
Quintana, and Sweet. On screening, the court found plaintiff
failed to state cognizable claims against any defendant.
Plaintiff was given one final opportunity to attempt to state
a cognizable claim by filing an amended complaint. (ECF No.
April 14, 2017, plaintiff filed a second amended complaint.
(ECF No. 45.)
court is required to screen all 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).
currently an inmate at Kern Valley State Prison, alleges
conduct by defendant Brett Mathew Fleming at High Desert
State Prison. (ECF No. 45.) Plaintiff asserts three claims -
retaliation, access to the courts, and due process. They are
Claim 1 - Retaliation
Allegations in the Second Amended Complaint
appears to be alleging the following instances of retaliation
by defendant Fleming:
1. Fleming placed negative entries in plaintiff's prison
record, put plaintiff in administrative segregation, and
changed plaintiff's conduct earning credits, which
resulted in a release date change. These acts were in
retaliation for plaintiff's exercise of his Fifth
Amendment rights not to speak with officers regarding a
2. Fleming validated plaintiff as a gang member in
retaliation for plaintiff's exercise of his
Miranda rights not to discuss a stabbing.
3. When plaintiff filed grievances about the retaliatory
conduct, Fleming threw them away.
4. Plaintiff was also prevented from filing grievances about
the gang validation which prevented him from pursuing ...