United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
M. COTA, UNITED STATES MAGISTRATE JUDGE.
a prisoner proceeding pro se, brings this civil rights action
pursuant to 42 U.S.C. § 1983. Pending before the court
is plaintiff's first amended complaint (ECF No. 19).
court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. See 28 U.S.C.
§ 1915A(a). On September 4, 2019, the court issued a
screening order addressing plaintiff's claims.
See ECF No. 22. The court summarized plaintiff's
allegations and claims as follows:
Plaintiff names the following as defendants: (1) Z. Wheeler
(2) N. Romney (3) Scott Kernan (4) D. Baughman. See ECF No.
19, at 2. Plaintiff raises two claims. First, Plaintiff
alleges Defendants Z. Wheeler and N. Romney retaliated
against him, in violation of his First Amendment rights, by
threatening Plaintiff with physical violence because he is a
patient of the Enhance Out Patient Program
(“EOP”) and because he attempted to reach out for
help when having suicidal ideations. Id. at 17.
Second, Plaintiff alleges Defendants Z. Wheeler and N. Romney
violated his Eighth Amendment rights by using excessive
force, despite Plaintiff allegedly not violating any prison
rules or acting disruptively at the time. Id.
Plaintiff claims while Defendants Z. Wheeler and N. Romney
escorted him to a medical triage treatment area, he was
verbally harassed, taunted, and ridiculed by both Defendants.
Id. at 3. Plaintiff alleges Defendants, in order to
prove a point, twice threw Plaintiff face first into the
pavement, twisting and jumping on Plaintiff's back,
wrist, and left shoulder. Id. Plaintiff alleges he
was handcuffed and in leg restraints and did not jerk, yank,
or pose any threat to the officers. Id. at 4.
Plaintiff states he was immediately treated by emergency room
staff for wounds to both of his wrists and abrasions to his
left shoulder. Id. Plaintiff does not specifically
address Defendants Scott Kernan and D. Baughman in the
ECF No. 22, pg. 3.
court concluded plaintiff's first amended complaint
stated a cognizable Eighth Amendment claim against defendants
Wheeler and Romney. See id. The court, however,
determined plaintiff failed to state a First Amendment claim
against any defendant and that plaintiff failed to allege
sufficient facts to state a claim against defendants Kernan
and Baughman. See id.
plaintiff's First Amendment retaliation claim, the court
In order to state a claim under 42 U.S.C. § 1983 for
retaliation, the prisoner must establish that he was
retaliated against for exercising a constitutional right, and
that the retaliatory action was not related to a legitimate
penological purpose, such as preserving institutional
security. See Barnett v. Centoni, 31 F.3d 813,
815-16 (9th Cir. 1994) (per curiam). In meeting this
standard, the prisoner must demonstrate a specific link
between the alleged retaliation and the exercise of a
constitutional right. See Pratt v. Rowland, 65 F.3d
802, 807 (9th Cir. 1995); Valandingham v. Bojorquez,
866 F.2d 1135, 1138-39 (9th Cir. 1989). The prisoner must
also show that the exercise of First Amendment rights was
chilled, though not necessarily silenced, by the alleged
retaliatory conduct. See Resnick v. Hayes, 213 F.3d
443, 449 (9th Cir. 2000), see also Rhodes v.
Robinson, 408 F.3d 559, 569 (9th Cir. 2005). Thus, the
prisoner plaintiff must establish the following in order to
state a claim for retaliation: (1) prison officials took
adverse action against the inmate; (2) the adverse action was
taken because the inmate engaged in protected conduct; (3)
the adverse action chilled the inmate's First Amendment
rights; and (4) the adverse action did not serve a legitimate
penological purpose. See Rhodes, 408 F.3d at 568.
As to the chilling effect, the Ninth Circuit in Rhodes
observed: “If Rhodes had not alleged a chilling effect,
perhaps his allegations that he suffered harm would suffice,
since harm that is more than minimal will almost always have
a chilling effect.” Id. at n.11. By way of
example, the court cited Pratt in which a retaliation claim
had been decided without discussing chilling. See
Id. This citation is somewhat confusing in that the
court in Pratt had no reason to discuss chilling because it
concluded that the plaintiff could not prove the absence of
legitimate penological interests. See Pratt, 65 F.3d at
808-09. Nonetheless, while the court has clearly stated that
one of the “basic elements” of a First Amendment
retaliation claim is that the adverse action “chilled
the inmates exercise of his First Amendment rights, ”
Id. at 567-68, see also Resnick, 213 F.3d at 449,
the comment in Rhodes at footnote 11 suggests that adverse
action which is more than minimal satisfies this element.
Thus, if this reading of Rhodes is correct, the chilling
effect element is essentially subsumed by adverse action.
As currently set forth, this claim cannot pass screening
because it is unclear if Plaintiff is alleging Defendants Z.
Wheeler and N. Romany retaliated against him because he is in
the EOP program and because he was seeking mental health
care, or if Plaintiff is attempting to allege Defendants
discriminated against him because of a mental disability that
causes suicidal ideations. If Plaintiff intends the former,
then the claim in its current state cannot pass screening
because being a member of the EOP and attempting to access
mental health care is not constitutionally protected conduct.
However, if Plaintiff intends the latter claim, then
Plaintiff seeks to bring a claim under Title II of the
Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12132. Title II of the ADA “prohibit[s]
discrimination on the basis of disability.” See
Lovell v. Chandler, 202 F.3d 1039, 1052 (9th Cir. 2002).
“To establish a violation of Title II of the ADA, a
plaintiff must show that (1) [he] is a qualified individual
with a disability; (2) [he] was excluded from participation
in or otherwise discriminated against with regard to a public
entity's services, programs, or activities; and (3) such
exclusion or discrimination was by reason of [his]
disability.” Id. Because Plaintiff has not
plead facts that establish he is a qualified individual with
a disability under the ADA, this claim in its current state
cannot pass the screening stage. Plaintiff will be provided
an opportunity to amend the complaint to set forth specific
facts as to the exact claim he is asserting.
ECF No. 22, pgs. 6-7.
defendants Kernan and Baughman, the court identified two
pleading defects. First, the court addressed plaintiff's
failure to allege a sufficient causal nexus:
To state a claim under 42 U.S.C. § 1983, the plaintiff
must allege an actual connection or link between the actions
of the named defendants and the alleged deprivations. See
Monell v. Dep't of Social Servs.,436 U.S. 658
(1978); Rizzo v. Goode,423 U.S. 362 (1976).
“A person ‘subjects' another to the
deprivation of a constitutional right, within the meaning of
§ 1983, if he does an affirmative act, participates in
another's affirmative acts, or omits to perform an act
which he is legally required to do that causes the
deprivation of which complaint is made.” Johnson v.
Duffy,588 F.2d 740, 743 (9th Cir. 1978). Vague and
conclusory allegations concerning the involvement of official
personnel in civil rights violations are not sufficient.
See Ivey v. Board of Regents,673 F.2d 266, 268 (9th