Opinion
3:21-cv-00001-MMD-WGC
07-28-2021
ALBERT MEDINA, Plaintiff, v. NEVADA DEPARTMENT OF CORRECTIONS, et al., Defendants.
ORDER
MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE
Plaintiff, who is incarcerated in the custody of the Nevada Department of Corrections (“NDOC”), has submitted two civil rights complaints pursuant to 42 U.S.C. § 1983, two applications to proceed in forma pauperis, and three ex parte motions for appointment of counsel. (ECF Nos. 1, 1-1, 1-2, 3, 4, 6, and 7.) The matter of the filing fee will be temporarily deferred. The Court now screens Plaintiff's amended civil rights complaint under 28 U.S.C. § 1915A and addresses Plaintiff's ex parte motions for appointment of counsel.
It appears that the second complaint may be a copy of the first complaint. However, each complaint is over 100 pages, and the Court will not scour each complaint to confirm that the second complaint is identical to the first complaint. The Court therefore considers the second complaint (ECF No. 7) to be an amended complaint. An amended complaint replaces an earlier complaint. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989). Therefore, the operative complaint here is the First Amended Complaint (ECF No. 7).
The Court denies the second application to proceed in forma pauperis (ECF No. 6) because it is unnecessary. The operative application to proceed in forma pauperis is the first application (ECF No. 1).
I. SCREENING STANDARD
Federal courts must conduct a preliminary screening in any case in which an incarcerated person seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the Court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. See id. §§ 1915A(b)(1), (2). Pro se pleadings, however, must be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) the violation of a right secured by the Constitution or laws of the United States; and (2) that the alleged violation was committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
In addition to the screening requirements under § 1915A, under the Prison Litigation Reform Act (“PLRA”), a federal court must dismiss an incarcerated person's claim if “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 a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). Dismissal of a complaint for failure to state a claim upon which relief can be granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and the Court applies the same standard under § 1915 when reviewing the adequacy of a complaint or an amended complaint. When a court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the complaint with directions as to curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).
Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). In making this determination, the Court takes as true all allegations of material fact stated in the complaint, and the Court construes them in the light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). Allegations of a pro se complainant are held to less stringent standards than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980). While the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide more than mere labels and conclusions. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. See id.
Additionally, a reviewing court should “begin by identifying pleadings [allegations] that, because they are no more than mere conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “While legal conclusions can provide the framework of a complaint, they must be supported with factual allegations.” Id. “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. “Determining whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.
Finally, all or part of a complaint filed by an incarcerated person may be dismissed sua sponte if that person's claims lack an arguable basis either in law or in fact. This includes claims based on legal conclusions that are untenable (e.g., claims against defendants who are immune from suit or claims of infringement of a legal interest which clearly does not exist), as well as claims based on fanciful factual allegations (e.g., fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).
II. SCREENING OF FIRST AMENDED COMPLAINT
In the First Amended Complaint (“FAC”), Plaintiff sues multiple Defendants for events that allegedly took place while Plaintiff was incarcerated at Ely State Prison (“ESP”). (ECF No. 7 at 1.) In the part of the complaint form asking the plaintiff to identify the defendants, Plaintiff lists the following names: James Dzuerda, William Gittere, c/o Maldonado, c/o Birdon, and R.A. Rivera. (Id. at 2-3.) In the caption, Plaintiff also lists NDOC Director, Ely State Prison Warden, and Mr. D. Drummond. (Id. at 1.) Plaintiff brings four counts and seeks monetary damages. (Id. at 82, 101.)
The Court instructs Plaintiff that, if he chooses to amend the First Amended Complaint, any second amended complaint should not include any person in the caption unless Plaintiff includes that person and the required information about that person in the part of the complaint that asks for information about the defendants.
A. Claim 1
Claim 1 alleges the following. On December 16, 2019, c/o Birdon ordered that Plaintiff strip naked during the monthly routine cell search. (ECF No. 7 at 4). Plaintiff complied in order to avoid a disturbance and to avoid disciplinary charges for failure to obey a correctional officer's order. (Id.) However, Plaintiff asserts that, shortly after, he “learned that c/o Birdon's ‘order' was unlawful, and with malice intended to molest, humiliate and/or satisfy some sexual-voyeuristic gratification.” (Id.) As a level two prisoner, there was no cause to subject Plaintiff to a total strip search during a monthly cell inspection. (Id.) During the past two years, Plaintiff never observed a prisoner being subjected to a total strip search without first perpetrating “an over act.” (Id.) Plaintiff deduced that c/o Birdon's order was unlawful and unmerited when he noticed the hysterical laughter of two officers as Plaintiff was made to strip naked in their presence. (Id. at 5). Plaintiff asserts that he was not housed in a high security area and that he was not under any type of reasonable suspicion that would have an effect on the safety and security of the prison. (Id. at 6). He also asserts that c/o Birdon's conduct was a violation of prison regulations and procedures. (Id.) Plaintiff subsequently filed grievances, and those grievances were denied. (Id. at 5-6). Plaintiff concludes that this was inadequate implementation of the Prison Rape Elimination Act (“PREA”), in violation of the Eighth Amendment. (Id. at 4).
To the extent Plaintiff is seeking to state a claim based on an alleged violation of PREA, he does not and cannot state a colorable claim. The PREA does not create a private right of action or create a right enforceable under § 1983. See Hatcher v. Harrington, Case No. 14-00554 JMS/KSC, 2015 WL 474313, at *4-*5 (D. Haw. Feb. 5, 2015); Law v. Whitson, Case No. 2:08-CV-0291-SPK, 2009 WL 5029564, *4 (E.D. Cal. Dec. 15, 2009); see also Trost v. Cox, Case No. 3:14-CV-611-MMD-WGC, ECF No. 3 at 9 (D. Nev. April 10, 2015).
Whether conduct violates the Eighth Amendment is based on Eighth Amendment law, not PREA; asserting that conduct was a violation of the PREA or prison regulations is not sufficient to state a colorable Eighth Amendment claim. Courts considering a prisoner's Eighth Amendment claim must ask: 1) if the officials acted with a sufficiently culpable state of mind; and 2) if the alleged wrongdoing was objectively harmful enough to establish a constitutional violation. See Hudson v. McMillian, 503 U.S. 1, 8 (1992); Somers v. Thurman, 109 F.3d 614, 622 (9th Cir. 1997). Because vicarious liability is inapplicable to § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution. See Iqbal, 556 U.S. at 676.
Sexually assaulting a prisoner, such as touching a prisoner in a sexual manner or otherwise engaging in sexual conduct for the prison official's own sexual gratification, is a violation of the Eighth Amendment. See Bearchild v. Cobban, 947 F.3d 1130, 1142-45 (9th Cir. 2020); Schwenk v. Hartford, 204 F.3d 1187, 1197-98 (9th Cir. 2000).
However, strip searches and pat-downs of prisoners generally are not a violation of the Eighth Amendment. See Grummett v. Rushen, 779 F.2d 491, 492-93 (9th Cir. 1985) (concluding prison policy that permitted female guards to conduct pat-down searches of male inmates, including the groin area, did not state a claim for cruel and unusual punishment); but see Jordan v. Gardner, 986 F.2d 1521, 1525-31 (9th Cir. 1993) (recognizing that, when a cross-gender body search involves men physically squeezing, rubbing, and kneading the private parts of female prisoners who had suffered sexual abuse and the search was not necessary for penological purposes and was conducted with deliberate indifference to the prisoner's pain, then there may be an Eighth Amendment violation). Where there are searches and viewing of a prisoner's body but no physical contact, an officer's gawking, pointing, and joking are not sufficient to meet the objective component of the Eighth Amendment even if done by officers of the opposite sex. See Somers 109 F.3d at 624. Although the humiliation of prisoners may be improper, it is not sufficient to meet the objective prong of the Eighth Amendment. See Watison v. Carter, 668 F.3d 1108 (9th Cir. 2012) (holding that humiliation did not rise to the level of an objectively serious injury where defendant correctional officer entered the cell to search the cell, the plaintiff prisoner asked the officer to leave the cell while the plaintiff was on the toilet, but the officer approached the plaintiff, rubbed his thigh against the plaintiff's thigh, and laughed while the plaintiff was on the toilet).
Here, although Plaintiff makes the conclusory assertion that c/o Birdon required him to strip in order to “molest, humiliate and/or to satisfy some sexual-voyeuristic gratification,” he does not allege any facts that could be sufficient to show that Birdon engaged in sexual contact or any other sexual conduct. The only facts Plaintiff alleges are that Birdon required him to strip during a cell search and that some officers laughed. Such alleged conduct is is not sufficient to meet the objective prong and state a colorable Eighth Amendment claim.
The Court therefore dismisses Claim 1. Although it appears very unlikely that Plaintiff can state a colorable claim, the Court cannot yet conclude that it is impossible. Therefore, the Court will dismiss the claim against Defendant Birdon without prejudice and with leave to amend. However, if Plaintiff chooses to amend this claim, it will not be sufficient to allege a violation of the PREA, prison regulations, or state law. It also will not be sufficient to allege that it was unnecessary to require him to strip and that officers laughed at him and humiliated him. Merely making the conclusory assertion that the defendant made him strip for the purposes of molesting him or obtaining sexual gratification also will not be sufficient to state a claim. Rather, Plaintiff must allege true facts that would be sufficient to show that the Birdon sexually assaulted him by touching him sexually or engaged in sexual conduct to obtain sexual gratification.
B. Claim 2
Claim 2 alleges the following. Beginning on May 21, 2021, Plaintiff was punished with solitary confinement for “for failing to conduct the duties and responsibilities assigned to Mr. Rivera, CCSI, unit caseworker, by the Nevada Department of Corrections.” (ECF No. 7 at 22.) It appears that Plaintiff is alleging that Defendant Rivera improperly threatened to “red-tag” him if he did not find a cellmate and improperly “red tagged” him when he did not do so. Plaintiff asserts that Defendant's Rivera's “demand was irrational and unreasonable” because NDOC regulations provide that the responsibility for assigning housing to prisoners belongs to the caseworker or Classification Committee, but Defendant. Rivera carried out his threat to “red tag” Plaintiff for not finding a cellmate. Plaintiff asserts that red tagging “is an ESP policy that allows prison staff to punish prisoners without the implementation of a disciplinary charge, or any type of due process of law, because the Plaintiff failed to acquire a cellmate.” (Id.) Plaintiff questioned Defendant Rivera's “sanction” on him. (Id.) This allegation appears to refer to an inmate request form that Plaintiff sent to Defendant Rivera on the day that Plaintiff was red-tagged by Rivera. (Id. at 25). In that form, Plaintiff complained about the basis for the red tag. (Id. at 25). Rivera responded the following day, confirming that Plaintiff had been red-tagged because of Plaintiff's failure to find a cellmate and rejecting Plaintiff's arguments. (Id.)
It appears that Plaintiff is not alleging that he was moved to a new cell, but rather is alleging that he was not permitted to leave his cell while he was red tagged. He does not allege what the particular conditions were before he was red-tagged and while he was red-tagged.
Mrs. Sandoval subsequently charged Plaintiff with violations of the rules on June 14, 2020, and those charges were dismissed at a preliminary hearing on that same day.(Id. at 23, 28, 29).
The Court notes that a person does not violate due process by knowingly bringing false charges, as the constitutional issue is not the falsity of the charges, but the deprivation of a liberty interest without due process; the Due Process Clause does not grant a right to be free from untrue accusations. See Byrd v. Parin, 53 F.3d 337 (9th Cir. 1995) (unpublished) (holding that, even if plaintiff was deprived of a liberty interest and defendants arbitrarily filed disciplinary charge against him, he could not establish a due process violation where procedural requirements were provided); Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986); Jones v. Woodward, Case No. 1:14-cv-2084-SAB (PC), 2015 WL 1014257, *2 (E.D. Cal. 2015); Smith v. California Dep't of Corr. & Rehabs., Case No. 218CV2942KJMACP, 2019 WL 3035370, at *5 (E.D. Cal. July 11, 2019) (recognizing that prisoners do not have a liberty interest in being free from intentional false charges and that false charges are not sufficient to give rise to a claim under § 1983).
Plaintiff attempted to “resolve the claim through administrative relief.” (Id. at 23.) He started by sending Warden Gittere a letter on June 5, 2020, complaining about the red tag. (Id. at 23, 29.) He then filed multiple grievances. (Id. at 23-24.) Plaintiff maintains that grievance responses asserted the right to “punish” Plaintiff without “due process.” (Id. at 24.)
Based on these allegations, Plaintiff concludes that his Fourteenth Amendment right to due process was violated. (Id. at 22.)
Plaintiff acknowledges that he was given a notice of charges and that those charges were dismissed as a result of his preliminary hearing. The Court construes Plaintiff's due process claim as challenging the red-tagging, which appears to be a form of administrative segregation for prisoners who are charged with serious offenses. (Id. at 35.) Plaintiff maintains that it was a violation of due process for him to be red-tagged without “the implementation of disciplinary charges.”
Standard due process analysis requires the existence of a liberty or property interest. See Swarthout v. Cooke, 562 U.S. 216, 219 (2011). When there is such a liberty interest or property interest, the only other issue is whether the defendant deprived the plaintiff of that interest without the constitutionally required procedures. See id. at 219-20. Thus, allegations that a defendant violated state or local procedures and regulations are not sufficient to state a claim for violation of the Fourteenth Amendment's due process clause. See id. at 222. Therefore, to the extent Plaintiff is purporting to state a due process claim based merely on the allegations that prison regulations were violated, he does not and cannot state a colorable due process claim.
The Constitution provides no liberty interest in a particular prison security classification or housing. See Meachum v. Fano, 427 U.S. 215, 224-25 (1976) (holding that no liberty interest protected by the Due Process Clause is implicated in a prison's classification decisions.) “There is no constitutional right for a state prisoner ... to be housed in a particular portion or unit of a correctional institution.” Merriweather v. Reynolds, 586 F.Supp.2d 548, 557 (D.S.C. 2008) (citing Olim v. Wakinekona, 461 U.S. 238, 245 (1983)). The Due Process Clause itself does not confer on inmates a liberty interest in avoiding more adverse conditions of confinement. See Wilkinson v. Austin, 545 U.S. 209, 221-22 (2005).
Moreover, the Supreme Court has held that not all segregation constitutes the deprivation of a liberty interest and that a prisoner possesses a liberty interest under the federal constitution only when a change occurs in confinement that “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” See Sandin v. Conner, 515 U.S. 472, 484 (1995). In Sandin, the Supreme Court focused on a number of factors in determining that the plaintiff had not been deprived of a liberty interest invoking the procedural protections of due process: (1) the plaintiff was placed in a form of segregation that was essentially the same as other forms of segregation, including discretionary forms of segregation; (2) a comparison between the conditions in the plaintiff's previous confinement and his new confinement showed that the plaintiff suffered no “major disruption in his environment;” (3) the duration of his segregated confinement; and 4) whether the length of the plaintiff's sentence was inevitably affected. Id. at 486-87 (holding that prisoner was not subjected to atypical and significant hardship in relation to ordinary incidents of prison life and did not have an interest that gave rise to procedural protections when the prisoner was placed in solitary confinement in disciplinary segregation for thirty days where conditions were like those in administrative segregation and protective segregation and duration of sentence was not inevitably affected).
Plaintiff has not alleged facts sufficient to show what the differences in his confinement were before he was red-tagged and while he was red-tagged, and it is questionable whether he can adequately allege a liberty interest. But, even if Plaintiff had been deprived of a liberty interest, Plaintiff does not and cannot state a colorable due process claim. Even where a plaintiff adequately alleges a liberty interest that invokes the procedural protections of the Due Process Clause, it is not a violation of due process to place a prisoner in segregation prior to formal written charges and a disciplinary hearing. See Hewitt v. Helms, 459 U.S. 460, 475 (1983), receded from on other grounds by Sandin, 515 U.S. 472. The Due Process Clause does not require a detailed written notice of charges or a written description of the reasons for placing the prisoner in administrative segregation, representation by counsel or counsel-substitute, an opportunity to present witnesses, or a formal hearing, but the prisoner must, within a reasonable period of time after being placed in administrative segregation, be notified of the basis for the placement in administrative segregation and have an opportunity, whether orally or in writing, to present his views to the person transferring him to administrative segregation. See Toussaint v. McCarthy, 801 F.2d 1080, 1099-1101 (9th Cir. 1986), abrogated on other grounds by Sandin, 515 U.S. 472; Hewitt, 459 U.S. at 476.
Here, according to the FAC, it is apparent that Plaintiff was aware that he was red-tagged for not obtaining a cellmate, as he responded by writing to Rivera on the day he was red-tagged, challenging that basis for being red-tagged. Plaintiff therefore knew of the reasons for his red tag and had an opportunity to address the reason for his red tag to the person placing him in red-tag administrative segregation. This is not a case where a prisoner was not made aware of the reasons for being placed in administrative segregation and was deprived of any opportunity to present his views about those reasons.
The Court therefore dismisses Claim 2 with prejudice, as amendment would be futile.
C. Claim 3
Claim 3 alleges the following. Ely State Prison “officials” have developed a policy, custom, or practice of rejecting Plaintiff's attempts to resolve an “issue-grievance” by denying his grievances with memos stating that his grievances are improper. (ECF No. 7 at 45.) Plaintiff asserts that various officials have improperly, incorrectly, or inaccurately investigated, rejected, denied, or responded to his grievances or have failed to respond to his grievances and that prison regulations and state law have been violated. (Id. at 4549, 57-58.) Based on these allegations, Plaintiff concludes that there has been obstruction of “administrative remedies-grievance procedures” in violation of his First Amendment and Fourteenth Amendment rights. (Id. at 45).
The Court finds that Plaintiff fails to state a colorable First Amendment claim. A prisoner has no First Amendment right to any particular response to the prisoner's written expression in a grievance.
To the extent Plaintiff is alleging that anyone engaged in prohibited retaliation, in violation of the First Amendment, such claims are addressed in connection with Claim 4.
Furthermore, to the extent Plaintiff is attempting to state a due process claim because of violations of prison procedural regulations or state procedural law, he fails to state a colorable claim and cannot do so. See Swarthout v. Cooke, 562 U.S. 216, 222 (2011) (holding that due process requires constitutionally required procedures under certain circumstances; mere violation of state law is not sufficient to state a due process claim).
In addition, to the extent Plaintiff is attempting to state a due process claim based on allegations that officials improperly, incorrectly, or inaccurately investigated, rejected, denied, or responded to his grievances or failed to respond to his grievances, he does not and cannot state a colorable due process claim. Incarcerated people have no due process rights to the handling of grievances in any particular manner. See Mann v. Adams, 855 F.2d 639, 640 (9th Cir.1988) (holding that a state's unpublished policy statements establishing a grievance procedure do not create a constitutionally protected liberty interest because there is no legitimate claim of entitlement to a grievance procedure); Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (recognizing that there is no liberty interest in the processing of appeals because prisoners are not entitled to a specific grievance process); Patterson v. Kane, Case No. 06-15781, 2006 WL 3698654, at *1 (9th Cir. Dec. 13, 2006) (recognizing that denial of a grievance does not rise to the level of a constitutional violation); Taek Sang Yoon v. Arnett, 385 Fed.Appx. 666, 668 (9th Cir. 2010) (rejecting due process claim based on failure to respond to grievance); Gonzalez v. Mullen, 446 Fed.Appx. 17, 18 (9th Cir. 2011) (holding that district court properly dismissed Gonzalez's due process claim concerning the alleged improper processing of his grievance because Gonzalez has no due process right to the handling of grievances in any particular manner); LeBlanc v. Tabak, Case No. CV1603270JLSAFM, 2016 WL 6102327, at *6 (C.D. Cal. Oct. 18, 2016) (holding that a plaintiff could not state a colorable due process claim based on a defendant's denial of a grievance or failure to adequately investigate a grievance).
Thus, Plaintiff does not and cannot state a colorable First Amendment or Fourteenth Amendment claim based on the alleged responses to his grievances. The Court therefore dismisses Claim 3 with prejudice, as amendment would be futile.
D. Claim 4
Claim 4 alleges the following. “Prison officials have retaliated against the Plaintiff, for filing grievances since on or about April 2015.” (ECF No. 7 at 82.) Plaintiff asserts that he has suffered serious consequences for exercising his First Amendment rights with grievances and that his “exposition of the truth” has “created retaliatory responses from those whose wrongdoings are being exposed.” (Id.) The harm has been denial of medication, the humiliation of being stripped naked, being denied clothing, work assignments, and hygiene products, and “other forms of harassment.” (Id. at 82-83.) Based on these allegations, Plaintiff concludes that he has been retaliated against, in violation of the First Amendment and Fourteenth Amendment. (Id. at 82.)
Retaliation claims are based on the First Amendment. The Court presumes that Plaintiff's reference to the Fourteenth Amendment is for purposes of applying the First Amendment to persons who are state actors.
To state a viable First Amendment retaliation claim, a plaintiff must allege facts sufficient to show: “(1) 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. 2004). Total chilling is not required; it is enough if an official's acts would chill or silence a person of ordinary firmness from future First Amendment activities. See id. at 568-69.
Thus, to state a retaliation claim, the plaintiff must allege facts sufficient to show that the particular defendant engaged in adverse conduct. See id. at 567. Furthermore, the plaintiff must allege facts sufficient to show that the particular defendant was aware of the protected conduct and that the protected conduct provided that particular defendant with a retaliatory motive causing the defendant to engage in retaliatory adverse conduct; mere speculation is insufficient. See Pratt v. Rowland, 65 F.3d 802, 808-09 (9th Cir. 1995). Timing may sometimes provide some circumstantial evidence of retaliatory intent when the defendant's adverse conduct takes place shortly after the plaintiff engages in protected conduct. See Bruce v Ylst, 351 F.3d 1283, 1288-89 (9th Cir. 2000) (suspect timing of adverse conduct soon after protected conduct, combined with statements by defendants and evidence of pretext created triable issue of fact concerning retaliatory motive). However, there must be something more than such timing to show retaliatory intent; retaliation is not established simply by showing adverse activity after the occurrence of protected speech, but rather a plaintiff must show a connection between the two events. See Husky v. City of San Jose, 204 F.3d 893, 899 (9th Cir. 2000); Pratt, 65 F.3d at 808 (holding that “suspect timing” of inmate's transfer to different prison, without more, was insufficient to support inference that the transfer was done in retaliation for inmate's exercise of First Amendment rights); Phillippi v. Patterson, 599 Fed.Appx. 288, 289 (9th Cir. 2015); Rupe v. Beard, Case No. CV-08-2454-EFS PC, 2013 WL 6859278, at *7 (E.D. Cal. Dec. 24, 2013). Moreover, the plaintiff bears the burden of pleading the absence of legitimate correctional goals for the conduct of which he complains. See Pratt, 65 F.3d at 806. In addition, 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.'” Pratt, 65 F.3d at 807 (quoting Sandin, 515 U.S. at 482).
The mere denial of a grievance in response to that grievance does not rise to the level of a retaliatory adverse action and is not sufficient to deter a person of ordinary firmness from exercising his constitutional rights. See Allen v. Kernan, Case No. 316CV01923CABJMA, 2017 WL 4518489, at *9 (S.D. Cal. Oct. 10, 2017). Thus, the denial of a grievance in response to that grievance is not sufficient to state a colorable retaliation claim.
Furthermore, vicarious liability is inapplicable to § 1983 suits, so a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution. See Iqbal, 556 U.S. at 676. Thus, a person does not become liable for retaliation merely because he or she is employed with, supervised by, or a supervisor of someone who engages in retaliation. Moreover, a person's mere knowledge of someone else's retaliation is insufficient to hold that person liable for retaliation. Cf. Id. at 677; see also Heilman v. Wasko, Case No. 2:12-CV-1966 GGH P, 2012 WL 4468417, at *2 (E.D. Cal. Sept. 25, 2012). Rather, for each defendant, a plaintiff must allege true facts sufficient to show that the particular defendant took a particular adverse retaliatory course of conduct because of particular protected conduct. Speculative, collective, conclusory, and vague allegations are not sufficient.
The Court finds that Plaintiff fails to state a colorable retaliation claim. Plaintiff makes a conclusory and collective claim that “prison officials” have retaliated against him since 2015 for filing grievances. Plaintiff appears to be trying to bring multiple retaliation claims. However, such allegations are not sufficient to state any colorable retaliation claim. Plaintiff's allegations do not mention any particular grievance, much less show that any particular defendant was aware of a grievance that provided that particular defendant with a retaliatory motive. Plaintiff does not allege facts sufficient to show that any particular defendant engaged in particular adverse conduct because of any particular protected conduct. He does not allege facts sufficient to show when he filed the grievances, who he filed them against, what the contents of those grievances were, or when any particular adverse conduct took place. The Court therefore dismisses the retaliation claims without prejudice.
If Plaintiff chooses to amend Claim 4, he must allege true facts sufficient to show that a particular defendant took retaliatory adverse and chilling action against him because of specified protected conduct. This includes but is not limited to alleging facts sufficient to show the particular retaliatory and adverse chilling conduct by that particular defendant, the date of that conduct, the protected conduct, the date of the protected conduct, the particular defendant's knowledge of the specified protected conduct, and contents of the protected conduct that would show a retaliatory motive for the particular defendant. Merely alleging prior protected conduct and subsequent adverse conduct will not be sufficient. Conclusory, speculative, vague, and collective allegations will not be sufficient.
E. Leave to Amend
Plaintiff is granted leave to file a second amended complaint to cure the deficiencies of Claim 4 and the Eighth Amendment claim against Defendant Birdon. A second amended complaint may not include unrelated claims involving completely different defendants. Furthermore, an amended complaint does not include new claims based on events that have taken place since the original complaint was filed. In addition, any second amended complaint may not include any claim that Plaintiff has pursued in another case. The Court may dismiss without any further notice a second amended complaint that does not comply with these instructions.
Under Rule 20(a)(2), permissive joinder of multiple defendants in a single lawsuit is allowed only if: (1) a right to relief is asserted against each defendant that relates to or arises out of the same transaction or occurrence or series of transactions or occurrences; and (2) any question of law or fact common to all defendants arises in the action. Unrelated claims involving different defendants belong in different suits. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Claims may not be joined merely because they occurred in the same prison or prison system or because the claims are based on the same type of constitutional violation, such as retaliation. Plaintiff may not evade these requirements merely by baselessly naming a warden or supervisor as a defendant in all the claims, including a conclusory allegation of a policy or custom for prison employees to engage in retaliation against him, by making vague and collective allegations that “prison officials” retaliated against him, or by placing multiple claims in a part of the complaint form reserved for one claim.
Under Rule 8 of the Federal Rule of Civil Procedure, Plaintiff's second amended complaint must contain “a short and plain statement of the claim showing that [Plaintiff] is entitled to relief.” Fed.R.Civ.P. 8(d)(1). “Each allegation must be simple, concise, and direct.” Fed.R.Civ.P. 8(d)(1). For each cause of action and each Defendant, he must allege true facts sufficient to show that the Defendant violated a specified constitutional right. Plaintiff need not attach documents to his second amended complaint. If he chooses to do so, however, he should attach them to the end of the complaint and should not sprinkle them throughout the complaint. The Court will not sift through attachments to an amended complaint to try and guess what Plaintiff might be trying to rely upon to state a claim.
Plaintiff should file any amended complaint on this Court's approved prisoner civil rights form, and it must be entitled “Second Amended Complaint.” The Court notes that, if Plaintiff chooses to file a second amended complaint, Plaintiff must file the second amended complaint within 30 days from the date of entry of this order. If Plaintiff does not timely file a second amended complaint, this action will be dismissed with prejudice for failure to state a claim.
III. MOTIONS FOR APPOINTMENT OF COUNSEL
Like many incarcerated people bringing civil rights actions in this Court, including prisoners in segregation, Plaintiff has moved for appointment of counsel. Unlike most incarcerated people, Plaintiff has filed three such motions. (ECF Nos. 1-2, 3, 4.)
It is an unnecessary and unacceptable burden on the Court for Plaintiff to file multiple motions seeking the same action by the Court. The Court explicitly advises Plaintiff that filing multiple motions does not increase his chances of success, and the Court instructs him not to do so in the future.
A litigant does not have a constitutional right to appointed counsel in 42 U.S.C. § 1983 civil rights claims. See Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). Pursuant to 28 U.S.C. § 1915(e)(1), “[t]he court may request an attorney to represent any person unable to afford counsel.” However, the court will appoint counsel for indigent civil litigants only in “exceptional circumstances.” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (§ 1983 action). “When determining whether ‘exceptional circumstances' exist, a court must consider ‘the likelihood of success on the merits as well as the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved.” Id. “Neither of these considerations is dispositive and instead must be viewed together.” Id. Here, the Court does not find exceptional circumstances that warrant the appointment of counsel. Therefore, the Court denies the motions for appointment of counsel.
IV. CONCLUSION
It is therefore ordered that the second application to proceed in forma pauperis (ECF No. 6) is denied as unnecessary.
It is further ordered that a decision on Plaintiff's operative first application to proceed in forma pauperis (ECF No. 1) is deferred.
It is further ordered that the First Amended Complaint (ECF No. 7) is the operative complaint, and the Clerk of the Court is directed to send Plaintiff a courtesy copy of the First Amended Complaint.
It is further ordered that the portion of Claim 1 alleging an Eighth Amendment claim against Defendant Birdon is dismissed without prejudice and with leave to amend.
It is further ordered that Claim 4 is dismissed without prejudice and with leave to amend.
It is further ordered that the remainder of the FAC is dismissed with prejudice, as amendment would be futile.
It is further ordered that, if Plaintiff chooses to file a second amended complaint, as outlined in this order, Plaintiff must file the second amended complaint within 30 days from the date of entry of this order.
The Clerk of the Court is further directed to send to Plaintiff the approved form for filing a § 1983 complaint and instructions for the same. If Plaintiff chooses to file a second amended complaint, he should use the approved form and he must write the words “Second Amended” above the words “Civil Rights Complaint” in the caption.
It is further ordered that, if Plaintiff chooses to file an amended complaint, the Court will screen the amended complaint in a separate screening order. The screening process will take many months.
It is further ordered that, if Plaintiff fails to file a timely amended complaint, this action will be dismissed with prejudice for failure to state a claim.
It is further ordered that the motions for appointment of counsel (ECF Nos. 1-2, 3, 4) are denied.