United States District Court, E.D. California
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding pro se in this civil rights
action filed pursuant to 42 U.S.C. § 1983. This
proceeding was referred to this court by Local Rule 302
pursuant to 28 U.S.C. § 636(b)(1) and plaintiff has
consented to have all matters in this action before a United
States Magistrate Judge.
requests leave to proceed in forma pauperis. Since plaintiff
has submitted a declaration that makes the showing required
by 28 U.S.C. § 1915(a), his request will be granted.
Plaintiff is required to pay the statutory filing fee of
$350.00 for this action. 28 U.S.C. §§ 1914(a),
1915(b)(1). By separate order, the court will direct the
appropriate agency to collect the initial partial filing fee
from plaintiff's trust account and forward it to the
Clerk of the Court. Thereafter, plaintiff will be obligated
for monthly payments of twenty percent of the preceding
month's income credited to plaintiff's prison trust
account. These payments will be forwarded by the appropriate
agency to the Clerk of the Court each time the amount in
plaintiff's account exceeds $10.00, until the filing fee
is paid in full. 28 U.S.C. § 1915(b)(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 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.
order to avoid dismissal for failure to state a claim a
complaint must contain more than “naked assertions,
” “labels and conclusions” or “a
formulaic recitation of the elements of a cause of
action.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555-557 (2007). In other words, “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Furthermore, a claim upon which the court can grant relief
has facial plausibility. Twombly, 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.” Iqbal, 556 U.S. at 678.
When considering whether a complaint states a claim upon
which relief can be granted, the court must accept the
allegations as true, Erickson v. Pardus, 127 S.Ct.
2197, 2200 (2007), and construe the complaint in the light
most favorable to the plaintiff, see Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974).
times relevant to the allegations in the complaint, plaintiff
was an inmate at California State Prison- Solano
(“CSP-Solano”). Plaintiff alleges that on October
22, 2015, defendant McMaster “act[ed] like a[n]
ass-hole over a state broom.” ECF No. 1 at 6. Defendant
McMaster falsely reported that plaintiff had threatened her
with a broom, beat on his chest like Tarzan, and used profane
language. Id. Plaintiff received a rules violation
report or “RVR” based on this false report and
lost his position as lead cook for a period of time.
Id. In response to this false allegation, plaintiff
filed a 602, or prison grievance, against defendant McMaster.
Id. at 7. In retaliation for filing this grievance,
plaintiff “was moved from “A” yard, his
lower bunk was taken, his single cell was taken, [and his]
lower tier was taken.” Id. By way of relief,
plaintiff seeks monetary compensation.
court finds the allegations in plaintiff's complaint so
vague and conclusory that it fails to state a claim upon
which relief can be granted. Although the Federal Rules of
Civil Procedure adopt a flexible pleading policy, a complaint
must give fair notice and state the elements of the claim
plainly and succinctly. Jones v. Community Redev.
Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff
must allege with at least some degree of particularity overt
acts which defendants engaged in that support plaintiff's
allegations against defendant McMaster fail to state a claim
of retaliation. If plaintiff is alleging retaliation, he must
establish that defendant took some adverse action against him
(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. Brodheim v.
Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) (citing
Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir.
2005)). There is no allegation that defendant McMaster was
the defendant responsible for moving plaintiff from the
“A” yard, removing his chrono for a lower bunk on
the lower tier, cancelling his single cell status, or firing
plaintiff from his job as lead cook. This is especially true
since plaintiff identifies forty other defendants in his
complaint. Plaintiff never identifies which defendant(s) is
responsible for the adverse actions listed in the complaint.
Instead, he simply states that these actions amount to
retaliation. ECF No. 1 at 7. For all of these reasons, the
complaint fails to state a First Amendment retaliation claim.
allegations fail to state a cause of action for defamation
against defendant McMaster or any other named defendant. In a
§ 1983 action for defamation, the plaintiff must plead
more than an injury to reputation. There must also be an
injury to a liberty or property interest protected by the due
process clause of the Fourteenth Amendment. See Cooper v.
Dupnik, 924 F.2d 1520, 1532 (9th Cir. 1991) (citation
omitted). This is called “defamation-plus.”
Herb Hallman Chevrolet, Inc. v. Nash-Holmes, 169
F.3d 636, 645 (9th Cir. 1999). “There are two ways to
state a cognizable § 1983 claim for defamation-plus: (1)
allege that the injury to reputation was inflicted in
connection with a federally protected right; or (2) allege
that the injury to reputation caused the denial of a
federally protected right.” Id. (emphasis in
original) (citing Cooper, 924 F.2d at 1532).
Plaintiff has not alleged that his reputation was injured in
connection with a federally protected right or that the
damage caused him to be denied a federally protected right
since inmates do not have a substantive federal right to a
prison job while incarcerated. See Coakley v.
Murphy, 884 F.2d 1218, 1221 (9th Cir. 1989); Rizzo
v. Dawson, 778 F.2d 527, 530 (9th Cir. 1985).
Consequently, this claim should be dismissed for failing to
state a claim upon which relief may be granted.
respect to the named defendants who are the Warden, Associate
Warden, and supervisory personnel, these individuals are
generally not liable under § 1983 for the actions of
their employees under a theory of respondeat superior.
See Monell v. Dep't of Soc. Servs., 436 U.S. 658
(1978) (finding no vicarious liability for a municipal
“person” under 42 U.S.C. § 1983). Therefore,
when a named defendant holds a supervisorial position, the
causal link between him and the claimed constitutional
violation must be specifically alleged. See Fayle v.
Stanley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher
v. Saalfeld, 589 F.2d 438, 441 (9th Cir.1978), cert.
denied, 442 ...