(PC) Arrant v. Santoro ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MELVIN R. ARRANT, No. 1:20-cv-01253-DAD-SAB (PC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND GRANTING 14 KELLY SANTORO, et al., DEFENDANT HERRERA’S MOTION TO DISMISS 15 Defendants. (Doc. Nos. 22, 25) 16 17 Plaintiff Melvin R. Arrant is a state prisoner appearing pro se and in forma pauperis in 18 this civil rights action brought pursuant to 42 U.S.C. § 1983. This matter was referred to a United 19 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On April 30, 2021, the assigned magistrate judge issued findings and recommendations 21 recommending that defendant O. Herrera’s motion to dismiss (Doc. No. 22) be granted. (Doc. 22 No. 25.) Specifically, the magistrate judge recommendation that plaintiff’s First Amendment 23 retaliation claim against defendant Herrera be dismissed, without leave to amend, due to 24 plaintiff’s failure to state a cognizable claim upon which relief may be granted. (Id. at 8.) In so 25 recommending, the magistrate judge concluded that plaintiff failed to sufficiently allege that 26 defendant had taken an “adverse action” against him (a requisite element of a retaliation claim) 27 because the allegedly falsified counseling-only chrono that defendant Herrera had issued to 28 plaintiff does not constitute an “adverse action.” (Id. at 4–8.) The findings and recommendations 1 were served on the parties and contained notice that any objections thereto were to be filed within 2 twenty-one (21) days after service. (Id. at 8–9.) On May 19, 2021, plaintiff filed objections to 3 the pending findings and recommendations. (Doc. No. 26.) Defendant Herrera did not file any 4 objections but did file a response to plaintiff’s objections on June 2, 2021. (Doc. No. 28.) 5 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a 6 de novo review of the case. Having carefully reviewed the entire file, including plaintiff’s 7 objections and defendant’s responses thereto, the court finds the findings and recommendations to 8 be supported by the record and by proper analysis. 9 In his objections to the pending findings and recommendations, plaintiff focuses on 10 explaining why he believes that defendant Herrera falsified the counseling-only chrono. (Doc. 11 No. 26 at 3–6.) Plaintiff’s explanations and beliefs in this regard, however, are not relevant to the 12 court’s analysis of defendant Herrera’s motion to dismiss. In determining whether a complaint 13 states a claim on which relief may be granted, the court accepts as true the allegations in the 14 complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. 15 King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 16 1989). In other words, the court has already assumed for the purposes of defendant’s motion to 17 dismiss that defendant Herrera did falsify the counseling-only chrono as plaintiff has alleged in 18 his complaint. Accordingly, plaintiff’s objections in this regard provide no basis upon which to 19 reject the pending findings and recommendations. 20 In addition, plaintiff did not meaningfully address the magistrate judge’s conclusion that 21 the issuance of a counseling-only chrono (falsified or not) does not constitute an adverse action or 22 address the many cases cited in the findings and recommendations in which district courts have 23 similarly concluded that issuance of a counseling-only chrono to is not an adverse action 24 sufficient to serve as the basis for a retaliation claim. (See Doc. No. 25 at 6–7.) 25 Accordingly: 26 1. The findings and recommendations issued on April 30, 2021 (Doc. No. 25) are 27 adopted in full; 28 2. Defendant Herrera’s motion to dismiss (Doc. No. 22) is granted; 1 3. The Clerk of the Court is directed to terminate defendant Herrera as a named 2 defendant in this action; and 3 4. The remaining defendants shall file an answer to the complaint within twenty-one 4 (21) days from the date of service of this order. 5 | IT IS SO ORDERED. a 6 Li. wh F Dated: _ June 10, 2021 wea rE = 7 UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28