Darlene Tomel v. State of Hawaii , 570 F. App'x 717 ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 22 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
DARLENE TOMEL, No. 12-16866
Plaintiff - Appellant, D.C. No. 1:12-cv-00047-LEK-
BMK
v.
STATE OF HAWAII; et al., MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the District of Hawaii
Leslie E. Kobayashi, District Judge, Presiding
Argued and Submitted April 8, 2014
San Francisco, California
Before: SILVERMAN, W. FLETCHER, and BYBEE, Circuit Judges.
Plaintiff appeals the dismissal of her second amended complaint under the
screening provisions of 28 U.S.C. § 1915A. We have jurisdiction over her appeal,
and we reverse in part and remand to the district court for further proceedings.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Plaintiff originally filed a notice of appeal from the district court’s dismissal
with leave to amend—a nonfinal decision that ordinarily would not provide a basis
for appellate jurisdiction. See WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136
(9th Cir. 1997) (en banc). But the district court’s subsequent issuance of a final
judgment cured the jurisdictional defect. Hall v. N. Am. Van Lines, Inc., 476 F.3d
683, 686 (9th Cir. 2007) (deeming a premature appeal from a dismissal with leave
to amend to have been taken from the final judgment, where the district court
entered judgment after the plaintiff declined to amend). Our exercise of
jurisdiction here is in keeping with our circuit’s “pragmatic approach to finality in
situations where events subsequent to a nonfinal order fulfill the purposes of the
final judgment rule.” Cato v. Fresno City, 220 F.3d 1073, 1074–75 (9th Cir. 2000)
(per curiam) (citation omitted).
On appeal, plaintiff contests the dismissal of five claims. Four of those
claims were pled in the second amended complaint: (1) an Eighth Amendment
claim against Women’s Community Correctional Center (“WCCC”) staff for
denial of adequate medical care; (2) a Fourteenth Amendment equal-protection
claim against Dr. Glen Morrison for discrimination against plaintiff because she is
a veteran; (3) a First Amendment retaliation claim against Officer Taka; and (4) a
First Amendment free-exercise claim against prison officers. A fifth claim—an
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Eighth Amendment claim against Dr. Morrison for denial of adequate medical
care—appeared in the first amended complaint, but plaintiff omitted it from the
second amended complaint after the district court held that it had been properly
pled in the first amended complaint. We reverse the district court’s dismissal of
the retaliation claim and the free-exercise claim. In addition, on remand, the
district court should permit plaintiff to replead her Eighth Amendment claim
against Dr. Morrison for denial of adequate medical care.
The district court erred in dismissing plaintiff’s retaliation claim against
Officer Taka. Plaintiff alleged:
. . . ACO Taka has retaliated against me, after failure to protect me
against Inmate Lisa Kirsch who has pending charges for Terrorist Threat
to do bodily harm to me and statement filed with Sheriff Department,
Grievances filed, PSD, ACLU, Civil Rights Commission,
OMBUDSMAN and Governor all notified.
She refuses to provide my medication and is verbally abusive
when she talks to me, taking me off sick call lists.
We described the five elements of a retaliation claim in the prison context in
Watison v. Carter, 668 F.3d 1108 (9th Cir. 2012), also a pro se § 1983 case: first,
that the retaliated-against conduct is protected; second, that defendant took an
adverse action against the plaintiff; third, that there was a causal connection
between the adverse action and the protected conduct; fourth, that the official’s
acts would have a chilling effect on “a person of ordinary firmness”; and fifth, that
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the retaliatory action did not advance legitimate goals of the correctional
institution. Id. at 1114–15.
Plaintiff has adequately pled a retaliation claim under Watison. She alleges
that she filed a grievance against Officer Taka. Filing a grievance is protected
conduct. See Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005). She has also
alleged adverse action by stating that Officer Taka refused to provide medication,
was verbally abusive, and had taken her off sick call lists. Though plaintiff does
not explicitly allege a causal connection between the grievance and the adverse
action, “a chronology of events from which retaliation can be inferred is sufficient
to survive dismissal.” Watison, 668 F.3d at 1114. Plaintiff has alleged a
chronological sequence that permits the inference that Officer Taka’s actions were
in retaliation against plaintiff’s filing of the grievance. Similarly, a plaintiff may
satisfy the fourth element, a showing of a chilling effect, by “alleg[ing] that [she]
suffered some other harm that is more than minimal.” Id. (citation omitted).
Withholding medication and taking plaintiff off sick call lists is more than minimal
harm. As for the fifth requirement—that plaintiff plead that the retaliatory action
did not serve legitimate penological goals—plaintiff has not made specific
allegations to that effect. Nonetheless, she has “implicitly pleaded” this element by
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alleging conduct by prison officials that can have served no penological interest.
See id. at 1114–15, 1116.
Plaintiff alleged in her Second Amended Complaint that unknown officials
at WCCC violated her “Rights to Worship and go to Church and Programs (ex.
Christmas).” The district court did not explicitly address this claim. It stated only
that claims against WCCC remained dismissed, because, as the court previously
explained in its dismissal of the first amended complaint, a “prison or correctional
facility is not a person within the meaning of § 1983.”
The district court erred in dismissing plaintiff’s free-exercise claim on this
ground. Courts must construe pro se pleadings liberally in favor of the plaintiff.
See Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). Plaintiff’s second
amended complaint can be generously but reasonably understood as referring to
unnamed officials at WCCC. In addition, reading the complaint liberally, plaintiff
has alleged the requisite elements of a free-exercise claim: first, that the defendants
burdened a sincerely held belief, and second, that the burden is not supported by a
justification reasonably related to legitimate penological interests. See Turner v.
Safley, 482 U.S. 78, 89 (1987); Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994).
Finally, on remand, the district court should allow plaintiff to replead her
denial-of-medical care claim against Dr. Morrison, which she asserted in her first
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amended complaint but omitted from the second amended complaint. In the first
amended complaint, plaintiff alleged that she had “three slip and falls with
injuries” and that Dr. Morrison had refused to send her for x-rays or refer her to
outside doctors. The district court found that plaintiff had stated a claim for relief
against Dr. Morrison that “may proceed.” Although it was formerly the law in this
circuit that “a plaintiff waives all claims alleged in a dismissed complaint which
are not realleged in an amended complaint,” we recently recognized the harsh
consequences of that rule and specifically overruled it. Lacey v. Maricopa Cnty.,
693 F.3d 896, 925–28 (9th Cir. 2012) (en banc), overruling Forsyth v. Humana,
Inc., 114 F.3d 1467 (9th Cir. 1997).
In sum, we reverse the dismissal at the screening stage of plaintiff’s
retaliation claim and remand for the district court to allow the complaint to be
served with respect to (1) plaintiff’s retaliation claim against Officer Taka; (2)
plaintiff’s free-exercise claim against unknown officials at WCCC; and (3)
plaintiff’s Eighth Amendment claim against Dr. Morrison.
REVERSED in part and REMANDED.
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