Gradford v. Gray ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM J. GRADFORD, Case No. 1:21-cv-00421-AWI-SAB 12 Plaintiff, SCREENING ORDER GRANTING PLAINTIFF LEAVE TO EITHER FILE AN 13 v. AMENDED COMPLAINT OR NOTICE OF INTENT TO PROCEED ON CLAIM FOUND 14 ANDY GRAY, TO BE COGNIZABLE 15 Defendant. (ECF No. 1) 16 THIRTY DAY DEADLINE 17 18 William J. Gradford (“Plaintiff”), proceeding pro se and in forma pauperis, filed this civil 19 rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is Plaintiff’s complaint, 20 filed on March 15, 2021. (ECF No. 1.) 21 I. 22 SCREENING STANDARD 23 Notwithstanding any filing fee, the court shall dismiss a case if at any time the Court 24 determines that the complaint “(i) is frivolous or malicious; (ii) fails to state a claim on which 25 relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from 26 such relief.” 28 U.S.C. § 1915(e)(2); see Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) 27 (section 1915(e) applies to all in forma pauperis complaints, not just those filed by prisoners); Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (dismissal required of in forma pauperis 1 proceedings which seek monetary relief from immune defendants); Cato v. United States, 70 2 F.3d 1103, 1106 (9th Cir. 1995) (district court has discretion to dismiss in forma pauperis 3 complaint under 28 U.S.C. § 1915(e)); Barren v. Harrington, 152 F.3d 1193 (9th Cir. 1998) 4 (affirming sua sponte dismissal for failure to state a claim). The Court exercises its discretion to 5 screen the plaintiff’s complaint in this action to determine if it “(i) is frivolous or malicious; (ii) 6 fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a 7 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). 8 In determining whether a complaint fails to state a claim, the Court uses the same 9 pleading standard used under Federal Rule of Civil Procedure 8(a). A complaint must contain “a 10 short and plain statement of the claim showing that the pleader is entitled to relief. . . .” Fed. R. 11 Civ. P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the 12 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 13 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 14 544, 555 (2007)). 15 In reviewing the pro se complaint, the Court is to liberally construe the pleadings and 16 accept as true all factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 17 94 (2007). Although a court must accept as true all factual allegations contained in a complaint, 18 a court need not accept a plaintiff’s legal conclusions as true. Iqbal, 556 U.S. at 678. “[A] 19 complaint [that] pleads facts that are ‘merely consistent with’ a defendant’s liability . . . ‘stops 20 short of the line between possibility and plausibility of entitlement to relief.’” Id. (quoting 21 Twombly, 550 U.S. at 557). Therefore, the complaint must contain sufficient factual content for 22 the court to draw the reasonable conclusion that the defendant is liable for the misconduct 23 alleged. Iqbal, 556 U.S. at 678. 24 II. 25 COMPLAINT ALLEGATIONS 26 The Court accepts Plaintiff's allegations in the complaint as true only for the purpose of 27 the sua sponte screening requirement under 28 U.S.C. § 1915. 1 probation officer. (Compl. 2,1 ECF No. 1.) Plaintiff alleges that during this time period, 2 Defendant committed many retaliatory acts. (Id.) Plaintiff’s brother, Alonzo Gradford2 is a 3 well-known and well connected attorney in Stanislaus County. (Id.) Alonzo knows Defendant 4 and his office is one block away from the probation office. (Id.) Alonzo also knows many 5 Stanislaus County deputies. (Id.) 6 Plaintiff filed suit in the district court against his two prior probation officers, Officer 7 Andrew Walzeack and Jose Della Haya, that work with Defendant. Plaintiff has been wearing 8 an ankle monitor for two years and was required to follow all court orders. (Id.) He has not been 9 in any trouble and has continued to follow all court orders and obey all the terms of his 10 probation. (Id.) Similar to his prior probation officers, Defendant refused to remove the ankle 11 monitor or to allow him to transfer out of Stanislaus County due to the “constant and ongoing 12 retaliation and retaliation tactics against [him] for ‘speaking up’ against many authorities and 13 himself.”. (Id. at 2-3.) Defendant continues to use the ankle monitor on Plaintiff to advance his 14 personal retaliation. (Id. at 3.) 15 During the ten months when Defendant was Plaintiff’s probation officer, Plaintiff would 16 apply for jobs and those jobs that wanted an interview would change their mind after a few days. 17 (Id.) Plaintiff stopped receiving his mail, especially mail from the unemployment office 18 (“EDD”). (Id.) Plaintiff was approved and then suddenly all mail stopped especially after 19 Plaintiff was constantly calling and writing to no avail. (Id.) Just recently, after Defendant was 20 no longer his probation officer, Plaintiff received a letter from the EDD out of the blue and is 21 now receiving his mail. (Id.) Plaintiff contends that these are just some of the things that 22 Defendant, Alonzo, and others involved are doing to him. (Id.) 23 Around January 12, 2021, Defendant came to Plaintiff’s home by himself which was 24 unusual and told him to call Defendant in about three weeks to get the exact date because he was 25 going to be getting off probation. (Id. at 3-4.) Plaintiff immediately began to yell and had tears 26 1 All references to pagination of specific documents pertain to those as indicated on the upper right corners via the 27 CM/ECF electronic court docketing system. 1 of joy, stating, “Thank you! Thank you! Thank you. I am leaving here and never coming 2 back.” (Id. at 4.) Three weeks later, Plaintiff went to the probation office and Defendant was not 3 in so he spoke to a woman. (Id.) He told the woman what Defendant had said and she told him 4 that he was getting off probation around February 5, 2021. (Id.) Plaintiff asked her for a citizen 5 complaint form to file a complaint against Defendant. (Id.) He had been planning to file a 6 complaint against Defendant but Defendant did not know that. (Id.) Plaintiff asked for 7 Defendant’s business card and she said that he would have to come back when Defendant was in. 8 (Id.) 9 Plaintiff went back to the probation office the next day and Defendant called him back to 10 his office and seemed very agitated and angry. (Id. at 4-5.) Defendant spoke in a strong and 11 angry tone stating that the lady had told Defendant that Plaintiff got a complaint form, making 12 Plaintiff believe he was being arrested. (Id. at 5.) Defendant asked Plaintiff what he had against 13 probation. (Id.) As Plaintiff started to talk, Defendant cut him off asking him why he was 14 writing all these complaints against probation. (Id.) Plaintiff told Defendant that he was all 15 alone without any help and was trying to protect himself from all the retaliation. (Id.) Defendant 16 continued to intimidate and harass Plaintiff, cutting him off from speaking or answering his very 17 sarcastic but serious and angry questions. (Id.) Then, Defendant asked what Plaintiff had 18 against Alonzo and again cut Plaintiff off before he could answer. (Id.) Defendant was upset 19 and abruptly stopped talking and turned to his computer and started typing. (Id. at 6.) Defendant 20 said, “You know what.” “I got some bad news for you now. Your [sic] not getting off probation 21 now.” (Id.) Plaintiff was extremely disappointed to the point of tears. (Id.) Plaintiff contends 22 that Defendant “made stuff up” to justify keeping him on probation longer to stop him from 23 filing a complaint against him and took revenge because Plaintiff had filed a complaint against 24 his co-workers. (Id.) Defendant gave Plaintiff a sheet that contained new probation terms and 25 told Plaintiff that he was signed up for some classes that were to start in four days. (Id.) Plaintiff 26 went to the class as directed and was told that he was not signed up for any class. (Id. at 6.) 27 In interrogatories in another case, Deputy McCarthy admitted that he coached Alonzo’s 1 members were also involved in some way, shape or form and had knowledge of the drive by 2 shooting against Plaintiff. (Id.) Plaintiff also filed a complaint with the State Bar against 3 Alonzo. (Id.) Plaintiff called the city attorney in his other cases and explained what Defendant 4 had done. (Id.) Plaintiff is seeking monetary damages. (Id. at 13.) 5 III. 6 DISCUSSION 7 A. Section 1983 8 Section 1983 provides a cause of action for the violation of a plaintiff’s constitutional or 9 other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 10 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); 11 Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). To state a claim under section 1983, 12 Plaintiff must demonstrate that each defendant personally participated in the deprivation of his 13 rights. Iqbal, 556 U.S. at 677; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th 14 Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones, 297 F.3d at 15 934. In a section 1983 action, the complaint must allege that every defendant acted with the 16 requisite state of mind to violate underlying constitutional provision. OSU Student Alliance v. 17 Ray, 699 F.3d 1053, 1070 (9th Cir. 2012). 18 1. Retaliation 19 Plaintiff alleges that there was constant ongoing retaliation and retaliatory acts due to his 20 complaints. “The First Amendment forbids government officials from retaliating against 21 individuals for speaking out.” Blair v. Bethel Sch. Dist., 608 F.3d 540, 543 (9th Cir. 2010). 22 Under section 1983, retaliation by a state actor for the exercise of a constitutional right is 23 actionable even though the action, if taken for different reasons, would have been proper. Mt. 24 Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 283–84 (1977); Wilson v. City of Fountain 25 Valley, 372 F.Supp.2d 1178, 1186 (C.D. Cal. 2004). To state a claim, a plaintiff must show that 26 he was engaged in protected conduct and that adverse action was taken against him because of 27 that protected conduct. Wilson, 372 F.Supp.2d at 1186; see also Blair, 608 F.3d at 543 (to 1 protected activity; (2) as a result, he was subjected to adverse action by the defendant that would 2 chill a person of ordinary firmness from continuing to engage in the protected activity; and (3) 3 there was a substantial causal relationship between the constitutionally protected activity and the 4 adverse action.”). 5 Plaintiff has failed to allege any causal connection between the majority of the acts 6 alleged in the complaint and Defendant sufficient to state a claim. See Turner v. Smith, No. 11- 7 CV-5176 CRB, 2017 WL 897333, at *6 (N.D. Cal. Mar. 7, 2017), aff’d, 734 F. App’x 460 (9th 8 Cir. 2018) (a retaliation claim requires acausal connection between the retaliatory animus of one 9 person and that person’s own injurious action). For example, Plaintiff contends that he applied 10 for jobs and did not get them and that he was not receiving mail, specifically from the EDD. But 11 there are no facts alleged in the complaint to link Defendant to Plaintiff’s failure to be hired or 12 his mail service. Plaintiff’s speculation is insufficient to state a cognizable claim. 13 Plaintiff alleges that Defendant required him to wear ankle monitors and refused to allow 14 him to transfer out of Stanislaus County during the time that he was on probation. But, Plaintiff 15 has not alleged any facts that would lead to the reasonable inference that requiring the use of 16 ankle monitors or refusal to allow Plaintiff to move out of the County was due to Plaintiff’s 17 protected conduct or that it was adverse action that could be attributed to Defendant. 18 First, Plaintiff was subjected to ankle monitoring since January 2019, during the period of 19 time that he was supervised by his previous probation officers. Here, Plaintiff’s complaint 20 demonstrates that Plaintiff was subject to the ankle monitor requirement prior to being 21 supervised by Defendant. 22 Further, Defendant was simply enforcing a court order which is necessary to the judicial 23 process. Engebretson v. Mahoney, 724 F.3d 1034, 1042 (9th Cir. 2013). The Supreme Court 24 “has long expressed the general idea that public officials who ministerially enforce facially valid 25 court orders are entitled to absolute immunity.” Engebretson, 724 F.3d at 1038; see also Valdez 26 v. City & Cty. of Denver, 878 F.2d 1285, 1286 (10th Cir. 1989) (“an official charged with the 27 duty of executing a facially valid court order enjoys absolute immunity from liability for 1 facts that requiring him to wear an ankle monitor or requiring him to remain in the county were 2 not due to a valid court order. It would appear from the allegations in the complaint that 3 Defendant would be entitled to quasi-judicial immunity for enforcing the court ordered terms of 4 Plaintiff’s probation. 5 However, Plaintiff’s allegation that Defendant fabricated information to extend his 6 probation after Plaintiff indicated he was going to file a complaint is sufficient to state a 7 retaliation claim. 8 2. Conspiracy 9 To the extent that Plaintiff is attempting to state a claim for conspiracy, he has failed to 10 do so. In the context of conspiracy claims brought pursuant to section 1983, a complaint must 11 “allege [some] facts to support the existence of a conspiracy among the defendants.” Buckey v. 12 County of Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992); Karim-Panahi v. Los Angeles Police 13 Department, 839 F.2d 621, 626 (9th Cir. 1988). Plaintiff must allege that defendants conspired 14 or acted jointly in concert and that some overt act was done in furtherance of the conspiracy. 15 Sykes v. California, 497 F.2d 197, 200 (9th Cir. 1974). 16 A conspiracy claim brought under section 1983 requires proof of “an agreement or 17 meeting of the minds to violate constitutional rights,” Franklin v. Fox, 312 F.3d 423, 441 (9th 18 Cir. 2001) (quoting United Steel Workers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1540- 19 41 (9th Cir. 1989) (citation omitted)), and an actual deprivation of constitutional right, Hart v. 20 Parks, 450 F.3d 1059, 1071 (9th Cir. 2006) (quoting Woodrum v. Woodward County, Oklahoma, 21 866 F.2d 1121, 1126 (9th Cir. 1989)). “To be liable, each participant in the conspiracy need not 22 know the exact details of the plan, but each participant must at least share the common objective 23 of the conspiracy.” Franklin, 312 F.3d at 441 (quoting United Steel Workers, 865 F.2d at 1541). 24 Plaintiff makes vague and conclusory allegations that his brother conspired with 25 Defendant and other county officials to harm him. However, there are no facts alleged that 26 would lead to the reasonable inference that a conspiracy existed to violate Plaintiff’s federal 27 rights. For example, Plaintiff alleges that Alonzo was a well-known attorney, he personally 1 familiarity and proximity is insufficient to infer that any conspiracy existed. Similarly, 2 Plaintiff’s conclusory allegations that Defendant, Alonzo, and other deputies were somehow 3 involved in a drive by shooting aimed at Plaintiff is insufficient for the Court to reasonably infer 4 that any of the individuals were engaged in a conspiracy to violate Plaintiff’s rights. 5 IV. 6 CONCLUSION AND ORDER 7 For the reasons discussed, Plaintiff’s complaint states a retaliation claim against 8 Defendant Gray for extending his probation based on fabricated evidence, but fails to state any 9 other cognizable claims for a violation of Plaintiff’s constitutional rights. The Court will grant 10 Plaintiff an opportunity to cure the identified deficiencies which Plaintiff believes in good faith, 11 are curable. Lopez, 203 F.3d at 1130. If Plaintiff chooses to amend his complaint, he may not 12 change the nature of this suit by adding new, unrelated claims in his second amended complaint. 13 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints). 14 If Plaintiff does not wish to file an amended complaint and he is agreeable to proceeding 15 only on the cognizable claim identified by the Court, he may file a notice informing the Court 16 that he does not intend to amend and he is willing to proceed only on his claim against Defendant 17 Gray. The Court will then recommend to a district judge that this case only proceed on that 18 claim for the reasons discussed above. 19 If Plaintiff chooses to file an amended complaint, that complaint should be brief, Fed. R. 20 Civ. P. 8(a), but it must also state what each named defendant did that led to the deprivation of 21 Plaintiff’s constitutional rights, Iqbal, 556 U.S. at 678-89. Although accepted as true, the 22 “[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level . . . 23 .” Twombly, 550 U.S. at 555 (citations admitted). 24 An amended complaint supersedes all prior complaints. Lacey v. Maricopa County, 693 25 F.3d 896, 927 (9th Cir. 2012). Absent prior court approval, the amended pleading must be 26 complete in itself without reference to any prior pleading. Local Rule 220. Finally, any 27 amended complaint is limited to 25 pages in length. An amended complaint which exceeds this 1 Based on the foregoing, it is HEREBY ORDERED that: 2 1. The Clerk’s Office shall send Plaintiff a civil rights complaint form; 3 2. Within thirty (30) days from the date of service of this order, Plaintiff shall file 4 either: 5 a. an amended complaint, limited to 25 pages in length, or 6 b. a notice of his intent to proceed upon the cognizable claim identified in 7 this order; and 8 3. Plaintiff is warned that if he fails to comply with this order, the Court will 9 recommend to the district judge that this action be dismissed for the failure to 10 prosecute and the failure to comply with a court order. 11 0 IT IS SO ORDERED. FA. ee 13 | Dated: _ March 25, 2021 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28