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Spence v. Kaur

United States District Court, E.D. California

June 20, 2017

GERALD SPENCE, Plaintiff,
v.
G. KAUR, et al., Defendants.

          ORDER

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a state prisoner, proceeding without counsel. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, and is proceeding in forma pauperis. This proceeding was referred to this court pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. Plaintiff's amended complaint[1] is now before the court.

         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 when 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). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.

         A complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), 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).

         Plaintiff names nine individuals as defendants in his amended complaint: G. Kaur, Sr. Librarian; P. Ditto, Vice-Principal; Kenya Williams, Principal; Sgt. Chambers; R. Mitchell, Associate Deputy Warden; Eric Arnold, Warden; K. Estrella, Correctional counselor -- appeals coordinator; C. Cagnina, appeals coordinator; and M. Voong, Chief, Inmate Appeals at office of Secretary of Corrections. All of the defendants, except Voong, are employed at the Solano State Prison in Vacaville.

         Claim l: Retaliation

         Plaintiff alleges that on November 2, 2016, defendant Kaur retaliated against plaintiff by issuing a false 128 information chrono dating back to October 25, 2016, and threatening disciplinary action. On November 8, 2016, plaintiff filed a staff complaint against Kaur for the false report. But on November 10, 2016, before the staff complaint was processed or receipt of the appeal was acknowledged, Kaur took the 128 report and made it a 115-A Rules Violation Report (“RVR”), with no additional allegations of misconduct against plaintiff. Kaur then conducted her own review of the false report.

         “Prisoners 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)). A viable retaliation claim in the prison context has five 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).

         Here, plaintiff fails to identify the protected conduct, if any, he engaged in that allegedly caused Kaur to issue the false report. Moreover, plaintiff concedes that Kaur issued the RVR before his staff complaint was processed or receipt of his appeal was acknowledged, so plaintiff's staff complaint could not have been the protected conduct that caused Kaur to issue the RVR. Plaintiff claims he wrote letters to Williams before the initial 128 report[2] authored by Kaur, but such letters do not constitute “protected conduct” under Rhodes. And, in any event, plaintiff adduces no facts demonstrating that Kaur was even aware of such letters to Williams.

         In an abundance of caution, plaintiff is granted leave to file a second amended complaint should he be able to allege facts demonstrating that Kaur retaliated against plaintiff because of plaintiff's protected conduct. If plaintiff files such an amended pleading, he must address each of the elements required under Rhodes.

         Claim II: Disciplinary Proceeding

         In his second claim, plaintiff claims that “Chambers ‘heard' the [alleged] retaliatory disciplinary.” (ECF No. 19 at 5.) Plaintiff concedes that the RVR was overturned after plaintiff served the penalty assessed, 30 day deprivation of yard and law library access.

         Plaintiff fails to identify the factual basis upon which he raises this claim. In other words, he fails to identify any constitutional or federal statutory violation by Chambers' actions.

         Plaintiff also claims that defendants Mitchell and Arnold would not correct the error in the appeal process, and claims that defendants Estrella, Cagnina, and Voong attempted to obstruct and deny ...


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