FINDINGS AND RECOMMENDATION TO DISMISS ACTION FOR FAILURE TO STATE A CLAIM

(ECF No. 42)

FOURTEEN (14) DAY OBJECTION DEADLINE

MICHAEL J. SENG, Magistrate Judge.

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. (ECF Nos. 1, 4.)

On August 7, 2014, the Court screened Plaintiff's first amended complaint and concluded that Plaintiff stated a cognizable First Amendment retaliation claim against Defendants Martel, Davis, Shannon, Cano, and Combs for transferring him to a more dangerous institution in retaliation for pursuing an administrative grievance. (ECF No. 13.) Plaintiff's remaining claims were dismissed with prejudice. (Id.)

Defendants Martel, Davis, Shannon, Cano, and Combs waived service and filed a motion to dismiss. (ECF Nos. 16, 17.) The motion to dismiss was granted on the grounds that documents attached to Plaintiff's complaint reflected that Defendants were not responsible for the transfer decision and no other facts suggested that they participated in the adverse transfer. (ECF Nos. 29, 33, 38.) Plaintiff was given leave to amend.

His second amended complaint is before the Court for screening. (ECF No. 42.)

I. Screening Requirement

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, malicious," or 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). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

II. Pleading Standard

Section 1983 "provides a cause of action for the deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[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) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Id. Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 677-78.

III. Plaintiff's Allegations

Plaintiff currently is housed at California State Prison, Los Angeles County, but complains of acts that occurred at Pleasant Valley State Prison ("PVSP") in Coalinga, California. Although the complaint refers to various "Defendants" and identifies some individuals by name, only Defendant M. Martel is listed in the caption.

Plaintiff's second amended complaint contains various allegations that have been dismissed with prejudice for failure to state a claim. (ECF No. 13.) These allegations will not be repeated here, except as background to the allegations at issue. His remaining allegations may be summarized essentially as follows.

Plaintiff was placed in solitary confinement in December 2010. The reasons for placing and retaining Plaintiff in solitary confinement were false. On January 19, 2012, Plaintiff was removed from solitary for a hospital admission. Plaintiff returned to PVSP on January 26, 2012 and was returned to solitary confinement. That same day, Plaintiff attended an Institutional Classification Committee ("ICC") with Defendants M. Martel, M.C. Davis, R. Shannon, C.P. Cano, and D. Combs. Defendants told Plaintiff that he would be transferred to CMF-III or CMC-E-III due to safety concerns. Plaintiff claims this was another in a serious of "excuses" proffered by the ICC during the course of his time in solitary confinement relating to enemy or safety concerns.

On January 30, 2012, Plaintiff began a hunger strike to protest his transfer.

On February 8, 2012, Plaintiff filed a "formal complaint."

Thereafter, Defendants began asking Plaintiff what they could do to end his protest. Plaintiff replied that they would have to stop fabricating reasons for keeping him in solitary confinement and for transferring him.

On February 14, 2012, Defendant Cano interviewed Plaintiff in the infirmary. Plaintiff was told to stop his hunger strike and withdraw his complaint because a new ICC would be held on February 16, 2012. Cano told Plaintiff that he would be released from solitary confinement and would not be transferred.

On February 16, 2012, Plaintiff attended an ICC with Defendants. Martel "et al." advised Plaintiff that he would be released to C-Facility and there was no reason to transfer him. Plaintiff was told to stop or withdraw his formal complaint.

Plaintiff thereafter was released to C-Facility but continued to pursue his grievance.

On February 28, 2016, Plaintiff was transferred to CSP-Solano, where he has substantial safety concerns.

Plaintiff's alleges that Defendants' conduct violated the Due Process clause of the Fourteenth Amendment and the Eighth Amendment's prohibition against cruel and unusual punishment. These claims have been dismissed with prejudice and will not be discussed further. The action proceeds, if at all, on a claim of First Amendment retaliation. Plaintiff seeks declaratory and injunctive relief.

IV. Analysis

"Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (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." Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).

The second element focuses on causation and motive. See Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009). A plaintiff must show that his protected conduct was a "`substantial' or `motivating' factor behind the defendant's conduct." Id. (quoting Sorrano's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). Although it can be difficult to establish the motive or intent of the defendant, a plaintiff may rely on circumstantial evidence. Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003) (finding that a prisoner established a triable issue of fact regarding prison officials' retaliatory motives by raising issues of suspect timing, evidence, and statements); Hines v. Gomez, 108 F.3d 265, 267-68 (9th Cir. 1997); Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995) ("timing can properly be considered as circumstantial evidence of retaliatory intent").

In terms of the third prerequisite, filing a grievance is a protected action under the First Amendment. Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989).

With respect to the fourth prong, "[it] would be unjust to allow a defendant to escape liability for a First Amendment violation merely because an unusually determined plaintiff persists in his protected activity . . . ." Mendocino Envtl. Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1300 (9th Cir. 1999). The correct inquiry is to determine whether an official's acts would chill or silence a person of ordinary firmness from future First Amendment activities. Rhodes, 408 F.3d at 568-69 (citing Mendocino Envtl. Ctr., 192 F.3d at 1300).

With respect to the fifth prong, a prisoner must affirmatively allege that "`the prison authorities' retaliatory action did not advance legitimate goals of the correctional institution or was not tailored narrowly enough to achieve such goals." Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985).

The Court already has concluded that Plaintiff engaged in protected conduct by filing a grievance. Additionally, a transfer to a more dangerous institution is sufficient to allege adverse action, even though Plaintiff has no constitutional right to be housed in any particular institution. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (holding that prison official may not "transfer an inmate to another prison in retaliation for the inmate's exercise of his First Amendment right"); Meachum v. Fano, 427 U.S. 215, 224-25 (1976) (no right to be housed in a particular institution). Finally, Plaintiff's allegations are sufficient to suggest that the transfer was not motivated by any penological necessity.

Thus, the issue before the Court is whether Plaintiff has alleged sufficient facts to suggest that Defendants transferred Plaintiff because of his protected First Amendment activity. Indeed, the Court previously dismissed Plaintiff's complaint on the ground that the first amended complaint failed in this regard. (ECF Nos. 29 & 33.) More specifically, the Court held as follows:

Plaintiff has failed to cure these defects in his second amended complaint. He now alleges that Cano told him to stop pursuing his grievance on February 14, 2016. However, the allegations do not suggest this was a threat, but rather an indication that the grievance would essentially be mooted by the subsequent ICC decision. More significantly, however, Plaintiff does not allege any facts to suggest that the ICC members are CSRs or otherwise authorized the transfer to CSP-Solano. He therefore fails to allege that any of the ICC members took adverse action against him because of his protected activity. Nor does he allege facts to suggest that the CSR responsible for the transfer was aware of his grievance or acted because of it. He therefore fails to state a claim.

Plaintiff has been advised at some length of the legal standards applicable to his claims and had been afforded the opportunity to cure noted defects. He has failed to do so. Further leave to amend appears futile and should be denied.

V. Conclusion and Recommendation

Based on the foregoing, Plaintiff's second amended complaint fails to state a cognizable claim. He previously was advised of pleading deficiencies and afforded the opportunity to correct them. He failed to do so. Any further leave to amend reasonably appears futile and should be denied.

Accordingly, it is HEREBY RECOMMENDED that the action be DISMISSED with prejudice for failure to state a claim.

The findings and recommendation will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen (14) days after being served with the findings and recommendation, the parties may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendation." A party may respond to another party's objections by filing a response within fourteen (14) days after being served with a copy of that party's objections. The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

IT IS SO ORDERED.