(PC) McCoy-Gordon v. Cota ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DEMARREA MCCOY-GORDON, No. 1:19-cv-01669-DAD-EPG (PC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 14 M. COTA, et al., (Doc. No. 15) 15 Defendants. 16 17 Plaintiff DeMarrea McCoy-Gordon is a state prisoner proceeding pro se and in forma 18 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This matter was referred to a 19 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On April 10, 2020, the assigned magistrate judge issued findings and recommendations, 21 recommending dismissal of plaintiff’s complaint without leave to amend. (Doc. No. 15.) With 22 respect to plaintiff’s claims alleging that his inmate grievance against defendant Sherman was not 23 properly processed, the magistrate judge found that: (1) plaintiff did not connect these allegations 24 to a defendant named in this action; and (2) even if he had, prisoners are not entitled to a specific 25 administrative grievance procedure and there is no liberty interest in the processing of inmate 26 grievances. (Id. at 6.) With respect to plaintiff’s First Amendment retaliation claims, the 27 magistrate judge found that the allegedly retaliatory actions taken by the named defendants were 28 not retaliatory because, in his complaint, “Plaintiff himself describes events that precipitated each 1 allegedly false write-up.” (Id. at 8.) The magistrate judge found that “Plaintiff only has a claim 2 for retaliatory filing of charges if those charges [we]re false” (id. at 10), but that could not be the 3 case here because the allegations in the complaint demonstrate that defendants’ filing of the 4 prison disciplinary charges against plaintiff were not false. The magistrate judge therefore 5 recommended dismissing plaintiff’s complaint without leave to amend. (Id. at 11) (“[T]he facts 6 alleged, even take as true and construed in Plaintiff’s favor, do not state a claim under the 7 applicable legal standards.”). On April 29, 2020, plaintiff filed objections to the pending findings 8 and recommendations. (Doc. No. 16.) On that same date, plaintiff also filed a first amended 9 complaint, which the court construes as a proposed first amended complaint. (Doc. No. 17.) 10 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a 11 de novo review of the case. Having carefully reviewed the entire file, including plaintiff’s 12 objections and his proposed first amended complaint, the court concludes that the findings and 13 recommendations are supported by the record and by proper analysis. 14 In his objections, plaintiff argues that all he needs to do to plausibly state a First 15 Amendment retaliation claim is to allege a chronology of events from which retaliation may 16 plausibly be inferred. (Doc. No. 16 at 2–3.) Plaintiff contends that his complaint did allege such 17 a chronology of events. (Id. at 3.) To the extent that the undersigned disagrees with his 18 contention in this regard, plaintiff requests that he be granted leave to amend his complaint. (Id.) 19 “Because direct evidence of retaliatory intent rarely can be pleaded in a complaint,” plaintiff 20 argues that “allegation[s] of a chronology of events from which retaliation can be inferred [are] 21 sufficient to survive dismissal.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012). That is 22 an accurate statement of the law. However, here, the magistrate judge has correctly found that 23 plaintiff’s complaint does not plausibly allege such a chronology of events because the 24 complaint’s allegations on their face demonstrate that defendants were justified in writing him up 25 for prison disciplinary violations each time that they did so. Plaintiff’s objections do not 26 meaningfully dispute the magistrate judge’s findings in this regard. Instead, plaintiff continues to 27 argue that an isolated comment by defendant Cota—stating “that’s snitching” in response to 28 realizing that plaintiff was pursuing litigation relating to his earlier confinement at a different 4:40 UV VEY OMAR SOU OPO PT OAyt VM VI 1 | prison facility— “was the motivating factor behind all of the harassing write-ups|.|” (Doc. No. 2 | 16at 3.) The pending findings and recommendations correctly note, however, that is not the case: 3 | each of the prison disciplinary write-ups that plaintiff takes issue with appears to have been 4 | justified based on plaintiffs own allegations as set forth in his pending complaint. Moreover, the 5 | undersigned has reviewed plaintiff's proposed first amended complaint and finds that it, too, 6 | suffers from the same fatal defect identified in the pending findings and recommendations: 7 | namely, the allegations in that proposed first amended complaint demonstrate that defendants did 8 | not falsely write him up nor did they retaliate against him for exercising his First Amendment 9 | rights. Accordingly, and especially in light of plaintiff’s failure to cure the noted deficiencies in 10 | his proposed first amended complaint despite having been provided with the analysis of the 11 | findings and recommendations, the court finds that the granting of leave to amend is not 12 | warranted. See Centeno v. Wilson, No. 1:08-cv-01435-FJM, 2010 WL 1980157, at *1 (E.D. Cal. 13 | May 17, 2010) (“A motion for leave to amend may be denied if it appears to be futile or legally 14 | insufficient.”). 15 For the reasons set forth above, 16 1. The April 10, 2020 findings and recommendations (Doc No. 7) are adopted; 17 2. This action is dismissed without leave to amend due to plaintiff's failure to state a 18 cognizable claim; and 19 3. The Clerk of the Court is directed to close this case. 20 | IT IS SO ORDERED. me □ | Dated: _May 8, 2020 Yel A Yaad 22 UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28