United States District Court, E.D. California
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding without counsel in this action
brought pursuant to 42 U.S.C. § 1983 who seeks leave to
proceed in forma pauperis. ECF No. 2.
to Proceed in Forma Pauperis
application makes the showing required by 28 U.S.C. §
1915(a)(1). Accordingly, plaintiff's request to proceed
in forma pauperis is granted.
to § 1915(e)(2), the court must dismiss the case at any
time if it determines the allegation of poverty is untrue, or
if the action is frivolous or malicious, fails to state a
claim on which relief may be granted, or seeks monetary
relief against an immune defendant.
pro se pleadings are liberally construed, see Haines v.
Kerner, 404 U.S. 519, 520-21 (1972), a complaint, or
portion thereof, should be dismissed for failure to state a
claim if it fails to set forth “enough facts to state a
claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554,
562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41
(1957)); see also Fed. R. Civ. P. 12(b)(6).
“[A] plaintiff's obligation to provide the
‘grounds' of his ‘entitlement to relief'
requires more than labels and conclusions, and a formulaic
recitation of a cause of action's elements will not do.
Factual allegations must be enough to raise a right to relief
above the speculative level on the assumption that all of the
complaint's allegations are true.” Id.
(citations omitted). Dismissal is appropriate based either on
the lack of cognizable legal theories or the lack of pleading
sufficient facts to support cognizable legal theories.
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1990).
reviewing a complaint under this standard, the court must
accept as true the allegations of the complaint in question,
Hospital 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). A pro se plaintiff must satisfy the
pleading requirements of Rule 8(a) of the Federal Rules of
Civil Procedure. Rule 8(a)(2) “requires a complaint to
include a short and plain statement of the claim showing that
the pleader is entitled to relief, in order to give the
defendant fair notice of what the claim is and the grounds
upon which it rests.” Twombly, 550 U.S. at
alleges that, at some unspecified point prior to June 26,
2017, he had filed a staff complaint against defendant
Castrillo (a medical technician assistant or
“MTA” at the California Medical Facility) for
sexual assault and harassment. ECF No. 11 at 3. He claims
that, as a result of the complaint, Castrillo was barred from
conducting searches of plaintiff's person. Id.
On June 26, 2017, plaintiff was waiting to attend evening
dayroom - entrance into which required a pat down search.
Id. Castrillo was present and allegedly attempted to
pat search plaintiff in contravention of the prior
administrative order. Id. at 3-4. Plaintiff refused
the search and pointed out that Castrillo was barred from
enacting it. Id. at 4. Castrillo allegedly responded
by yelling at plaintiff and telling him “you need to
come out of the closet, everyone knows your (sic) gay.”
Id. He then ordered plaintiff returned to his cell.
Id. Plaintiff alleges that Castrillo's actions
were undertaken in retaliation for his earlier administrative
complaint against the same. Id. at 5-6.
alleges that he spoke to defendant “John Doe” -
the senior MTA on staff - on June 26, 2017 and after
Castrillo attempted to search him. Id. at 4. He told
Doe that Castrillo was retaliating against him and the latter
allegedly replied by stating “you deserve everything
that's happening to you.” Id.
court finds that, for screening purposes, plaintiff has
stated a cognizable First Amendment retaliation claim against
defendants Castrillo and Doe. In so doing, the court notes
that the allegations do not establish facts which, taken as
true, establish direct evidence of retaliation. The Ninth
Circuit has held that a retaliation claim is adequately
pleaded where a chronology of events allows retaliation to be
inferred, however. See Watison v. Carter, 668 F.3d
1108, 1114 (9th Cir. 2012) (“Because direct evidence of
retaliatory intent rarely can be pleaded in a complaint,
allegation of a chronology of events from which retaliation
can be inferred is sufficient to survive dismissal.”).
The allegations at bar support such an inference.
court will also dismiss plaintiff's claims against
defendants L. Avsdin and “Jane Doe” with leave to
amend. With respect to Avsdin, plaintiff alleges only that
she processed his administrative grievance regarding the
foregoing retaliation. This does not state an actionable
constitutional claim. See Mann v. Adams, 855 F.2d
639, 640 (9th Cir. 1988); see also Ramirez v.
Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding that
there is no liberty interest entitling inmates to a specific
grievance process). And, after review of the complaint, the
court cannot determine what wrongdoing, if any, is being
attributed to ...