United States District Court, N.D. California
ORDER SCREENING THIRD AMENDED COMPLAINT
HAYWOOD S. GILLIAM, JR. UNITED STATES DISTRICT JUDGE
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 third
amended complaint (Dkt. No. 15) is now before the Court for
review under 28 U.S.C. § 1915A.
Standard of Review
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).
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.
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,
Third Amended Complaint
week prior to March 15, 2016, as Plaintiff was returning from
his job assignment, named defendant Correctional Officer
Daisy Avalos searched Plaintiff and found Plaintiff in
possession of two personal photos. Dkt. No. 15 at 3.
Plaintiff informed CO Avalos that these two photos were
religious artifacts which he uses in his daily religious
practice. Id. at 3. On March 15, 2016, Officer
Avalos again searched Plaintiff as he was entering Exercise
Yard #1, and again found the same two photos. Id. at
3. Office Avalos demanded that Plaintiff refrain from taking
personal items out of his cell. Id. at 3‒4.
Prior to and after March 2016, Plaintiff witnessed CO Avalos
find other inmates in possession of personal religious items
that were not work-related, yet CO Avalos did not demand that
these other inmates leave these personal religious items in
their cells. Id. at 4. On March 29, 2016, Officer
Avalos issued Plaintiff an RVR for taking his personal items
out of his cell and reiterated her demand that Plaintiff
leave his personal items in his cell. Dkt. No. 15 at 4. She
warned him that he would face “imminent, progressive
disciplinary action” if he did not comply. Id.
Plaintiff alleges that Officer Avalos issued this RVR in
retaliation for him filing an unrelated, successful complaint
with Cal OSHA. Id.
alleges that the issuance of the RVR was retaliatory in
violation of the First Amendment, and that the RVR violated
Plaintiff's rights under the Equal Protection Clause;
Plaintiff's right to free exercise of religion; and
Plaintiff's right to petition the government for redress
of grievances. Id.
First Amendment Retaliation Claim
alleges 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)