KENDALL J. NEWMAN, District Judge.
Plaintiff is a state prisoner, proceeding without counsel. Plaintiff consented to proceed before the undersigned for all purposes.
The 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. § 1915A(b)(1), (2).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
A complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief.
Here, it appears that plaintiff alleges that correctional officer Chenoweth retaliated against plaintiff "as a result of [plaintiff's] exercise of rights of access to court," . . . "of filing lawsuits and inmate appeals." (ECF No. 20 at 8.) Plaintiff then provides a laundry list of incidents.
Retaliation by a state actor for the exercise of a constitutional right is actionable under § 1983 even if the act would have been proper or justified under different circumstances.
Retaliation claims brought by prisoners must be evaluated in light of concerns over "excessive judicial involvement in day-to-day prison management, which `often squander[s] judicial resources with little offsetting benefit to anyone.'"
However, not every incident rises to the level of retaliation. In
Plaintiff sets forth eight separate incidents, but as to each incident, fails to address the five elements of a retaliation claim as required under
In the June 16, 2011 incident, plaintiff alleges that the law librarian technical assistant ("L.T.A.") called defendant Chenoweth to escort plaintiff from the library based on a dispute concerning the payment for photocopies. Defendant Chenoweth simply escorted plaintiff from the library, which advanced a legitimate correctional goal. Plaintiff alleges no facts demonstrating that Chenoweth acted in retaliation based on plaintiff's conduct protected under the First Amendment. Although defendant Chenoweth escorted plaintiff from the library, such action was ordered by the L.T.A., not initiated by defendant.
Plaintiff claims that on June 17, 2011, plaintiff was denied law library access from June 16, 2011, until February 24, 2012. (ECF No. 20 at 9.) However, it appears that Lt. Guimond banned plaintiff from the library "because L.T.A. Davis had a constitutional right to be safe." (ECF No. 20 at 9.) Such adverse action advances a legitimate correctional goal. Moreover, it appears that defendant Chenoweth's role during the June 17, 2011 events, was to verbally comment on plaintiff's actions in the library, based on plaintiff's dispute with the L.T.A., and not to issue the alleged library ban. Absent facts connecting an adverse action to defendant, such alleged verbal harassment is insufficient to state a cognizable civil rights claim. Plaintiff alleges that defendant Chenoweth told plaintiff that he is "a big nuisance," and verbally threatened to issue a rules violation against plaintiff if he returned to the library; however, if plaintiff was legitimately banned from the library due to his conflict with L.T.A. Davis, plaintiff was not permitted to attend the library. (ECF No. 20 at 10.) If plaintiff was banned from the library, what plaintiff considers a verbal threat could be construed as a legitimate warning that plaintiff would be issued a rules violation for violating such an order, which constitutes a legitimate correctional action. Moreover, despite providing numerous exhibits, plaintiff did not provide a copy of any written document banning him from the library. (ECF No. 20, passim.) Plaintiff's citation to the Lassen County Superior Court's February 24, 2012 order does not address such a ban, but rather ordered HDSP to facilitate his law library access and legal materials "so that he may participate in the case as required." (ECF No. 20 at 60.) In addition, plaintiff's allegations concerning the June 17, 2011 incident also fail to state an access to the courts claim because plaintiff alleges no facts demonstrating an actual injury was suffered during the deprivation. Plaintiff must show "actual prejudice to contemplated or existing litigation" by being shut out of court.
Subsequently, plaintiff had the Lassen County Sheriff's office serve defendant, and others, on March 29, 2012, with a subpoena in his Lassen County Superior Court case for a hearing to be held on statements made by defendant Chenoweth on June 17, 2011. (ECF No. 20 at 10.) However, the proof of service provided by plaintiff reflects that the deposition subpoena was served on Sgt. Guy Nuchols, not personally served on defendant Chenoweth. (ECF No. 20 at 48.) In addition, public court records reflect that plaintiff sued only L.T.A. C. Davis in the Lassen County Superior Court Case No. 54414.
On June 26, 2012, plaintiff claims that defendant Chenoweth improperly searched plaintiff during a routine pat down search upon plaintiff's completion of a scheduled law library session. (ECF No. 20 at 10.) Although plaintiff claims he turned around and told defendant that plaintiff was going to write him up for sexual misconduct, plaintiff fails to identify what protected conduct plaintiff was engaged in that allegedly prompted defendant's actions. Indeed, plaintiff states that defendant was "doing a routine pat down." (ECF No. 20 at 10.) Plaintiff's reference to the subpoena in Case No. 54414 fails to reflect defendant's personal knowledge of the case and is too remote in time to connect to defendant's actions on June 26, 2012. Court records confirm that such action named L.T.A. Davis as a defendant, not Chenoweth. In addition, defendant was engaged in a legitimate correctional activity of patting down plaintiff for security reasons.
Plaintiff also renews his claim that on June 26, 2012, upon leaving the chow hall, defendant Chenoweth allegedly began pepper-spraying plaintiff for no reason. But plaintiff again fails to connect defendant's actions with conduct protected under the First Amendment, rather than out of fear for his own safety. (
Plaintiff alleges that on October 10, 2012, defendant Chenoweth stood in front of plaintiff's door and loudly claimed plaintiff refused his tray, then started laughing. (ECF No. 20 at 11.) Plaintiff claims the prison was on lockdown and he did not refuse a tray. On December 18, 2012, plaintiff claims that while he was running on the track during yard, defendant pointed his finger at plaintiff whenever he passed by, then defendant started laughing very loudly, walked to the edge of the track and "began giving hard looks." (ECF No. 20 at 11.) On December 21, 2012, defendant came into the housing unit making loud noises and kicking the food cart, and when he came to plaintiff's housing unit, said to plaintiff, "What's your phone number `Big Boy?'" (ECF No. 20 at 11.) On December 24, 2012, defendant was very disruptive, kicking the food cart and being very loud. However, none of these allegations, even if true, rise to the level of an adverse action or a constitutional violation. Allegations of unprofessional conduct and harassment are not cognizable under section 1983. (ECF No. 19 at 6.)
Finally, plaintiff claims that on December 26, 2012, defendant denied plaintiff a food tray, but that Correctional Officer Courtney gave plaintiff a food tray. (ECF No. 20 at 11.) Again, plaintiff fails to allege facts connecting defendant's actions on December 26, 2012, to plaintiff's conduct protected under the First Amendment.
Thus, it appears that plaintiff's factual allegations are insufficient to plead a causal connection between any specific adverse action taken by defendant and any protected conduct by plaintiff, and plaintiff fails to allege a chronology of events that plausibly supports a claim that defendant acted with a retaliatory motive in response to plaintiff's protected conduct. Plaintiff fails to set forth a simple, concise, and direct statement of each claimed retaliatory action, and the alleged causal connection between any adverse action and any specific protected conduct is thus unclear. To the extent that plaintiff is purporting to allege that defendant acted in retaliation against plaintiff because of specific conduct that is constitutionally protected, plaintiff must set forth a short and plain statement of each such purported claim for retaliation.
Accordingly, plaintiff's amended complaint is dismissed. It is unclear whether plaintiff can amend to allege facts demonstrating that defendant retaliated against plaintiff. However, in an abundance of caution, plaintiff is granted one final opportunity to file a second amended complaint.
If plaintiff chooses to file a second amended complaint, plaintiff must plead sufficient facts for the court to find it plausible that defendant retaliated against him in violation of the First Amendment.
In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to make plaintiff's second amended complaint complete. Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. This requirement is because, as a general rule, an amended complaint supersedes the original complaint.
Finally, nothing in this order requires plaintiff to file a second amended complaint. If plaintiff determines that he is unable to amend his complaint in compliance with the court's order at this time, he may alternatively file a notice of voluntary dismissal of his claims without prejudice pursuant to Federal Rule of Civil Procedure 41(a) within thirty days of this order.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff's amended complaint is dismissed; and
2. Plaintiff is granted thirty days from the date of service of this order to file a second amended complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice; the second amended complaint must bear the docket number assigned this case and must be labeled "Second Amended Complaint"; plaintiff must file an original and two copies of the second amended complaint.
Failure to file a second amended complaint in accordance with this order will result in a recommendation that this action be dismissed.