Dennis v. Castrillo

          ORDER

          EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         Application to Proceed in Forma Pauperis

         Plaintiff's application makes the showing required by 28 U.S.C. § 1915(a)(1). Accordingly, plaintiff's request to proceed in forma pauperis is granted.

         Screening

         I. Legal Standards

         Pursuant 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.

         Although 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).

         In 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 562-563 (2007).

         II. Analysis

         Plaintiff alleges that, at some unspecified point prior to June 26, 2017, he had filed a staff complaint against defendant Castrillo^[1] (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.

         Plaintiff 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.

         The 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.

         The 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 ...