Nguyen v. Ascencio ( 2023 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TAM STEVE NGUYEN, Case No. 23-cv-03968-RMI 8 Plaintiff, ORDER OF DISMISSAL WITH LEAVE 9 v. TO AMEND 10 TODAN ASCENCIO, Re: Dkt. No. 3 Defendant. 11 12 13 Plaintiff, a state prisoner proceeding pro se, filed a civil rights complaint under 42 U.S.C. 14 § 1983. He has been granted leave to proceed in forma pauperis. 15 DISCUSSION 16 1. Standard of Review 17 Federal courts must engage in a preliminary screening of cases in which prisoners seek 18 redress from a governmental entity, or from an officer or employee of a governmental entity. 28 19 U.S.C. 1915A(a). In its review, the court must identify any cognizable claims, and dismiss any 20 claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or 21 seek monetary relief from a defendant who is immune from such relief. Id. at § 1915A(b)(1), (2). 22 Further, it should be noted that pleadings submitted by pro se parties must be liberally construed. 23 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 24 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 25 claim showing that the pleader is entitled to relief.” While specific facts are not necessary, the 26 statement needs to give the defendant fair notice of the nature of the claim and the grounds upon 27 which it rests. Erickson v. Pardus, 551 U.S. 89, 93 (2007). Although a plaintiff need not include 1 cause of action and state conclusions; rather a plaintiff must state factual allegations sufficient to 2 raise the entitlement to relief “above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 3 U.S. 544, 555 (2007). A complaint must proffer “enough facts to state a claim to relief that is 4 plausible on its face.” Id. at 570. The Supreme Court recently explained this standard: “[w]hile 5 legal conclusions can provide the framework of a complaint, they must be supported by factual 6 allegations . . . [and] [w]hen there are well-pleaded factual allegations, a court should assume their 7 veracity and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft 8 v. Iqbal, 556 U.S. 662, 679 (2009). 9 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 10 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that 11 the alleged deprivation was committed by a person acting under the color of state law. West v. 12 Atkins, 487 U.S. 42, 48 (1988). 13 2. Legal Claims 14 Plaintiff alleges that he was the victim of retaliation and racial discrimination and 15 harassment. “Within the prison context, a viable claim of First Amendment retaliation entails five 16 basic elements: (1) An assertion that a state actor took some adverse action against an inmate 17 (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 18 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 19 correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted). 20 Accord Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (prisoner suing prison officials under 21 § 1983 for retaliation must allege that he was retaliated against for exercising his constitutional 22 rights and that the retaliatory action did not advance legitimate penological goals, such as 23 preserving institutional order and discipline). The prisoner must show that the type of activity he 24 was engaged in was constitutionally protected, that the protected conduct was a substantial or 25 motivating factor for the alleged retaliatory action, and that the retaliatory action advanced no 26 legitimate penological interest. Hines v. Gomez, 108 F.3d 265, 267-68 (9th Cir. 1997) (inferring 27 retaliatory motive from circumstantial evidence). 1 On May 5, 2022, Plaintiff and defendant correctional officer Ascencio were in an argument 2 regarding a cell search that found an electronic tablet and Defendant made derogatory comments 3 regarding plaintiff’s Asian heritage. (dkt. 4 at 3-4). Plaintiff stated that he intended to file a 4 grievance regarding Defendant’s conduct. (Id. at 4). On May 6, 2022, Defendant issued a Rules 5 Violation Report (“RVR”) regarding the cell search. On May 25, 2022, Plaintiff filed a grievance 6 regarding Defendant’s conduct. (Id.) 7 Plaintiff was found guilty at the RVR hearing for the electronic tablet and lost privileges 8 and 90 days of time credits. (Id. at 5). There was a due process violation and a new hearing 9 occurred where Plaintiff was again found guilty and lost phone privileges and 90 days of time 10 credits. Plaintiff alleged that there were due process violations in the new hearing. (Id.) Prison 11 officials found that there were due process violations at the second hearing and a third hearing was 12 held several months later and Plaintiff was found not guilty. (Id. at 10). 13 On September 24, 2022, Defendant yelled at Plaintiff for being on the phone, stating that 14 he lost phone privileges. (Id. at 6). Plaintiff states that this was in retaliation for his filing of a 15 grievance. Plaintiff obtained permission to use the phone the next day. (Id.) On September 24, 16 2022, Plaintiff filed a grievance against Defendant for not permitting him to use the phone. The 17 next day, September 25, 2022, Defendant called Plaintiff a snitch. On September 26, 2022, 18 Plaintiff filed a grievance against Defendant for calling him a snitch. (Id.) 19 On September 30, 2022, Defendant issued a RVR against Plaintiff for possession of a cell 20 phone. (Id. at 7). Plaintiff was found not guilty at a RVR hearing for the cell phone. (Id.) 21 The complaint is dismissed with leave to amend to provide more information. Plaintiff’s 22 allegation regarding Defendant’s derogatory comments fail to state a claim under 42 U.S.C. § 23 1983. See Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir. 1997) overruled in part on other 24 grounds by Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008); see, e.g., Keenan v. Hall, 83 25 F.3d 1083, 1092 (9th Cir. 1996), amended 135 F.3d 1318 (9th Cir. 1998) (disrespectful and 26 assaultive comments by prison guard not enough to implicate 8th Amendment). In an amended 27 complaint, Plaintiff must either provide more information or remove this claim. 1 Plaintiff must also provide more information regarding the incidents of retaliation. Plaintiff 2 must show that Defendant intended to take the adverse action out of “retaliatory animus” to 3 “silence and to punish” the inmate, as opposed to for some other reason. Shephard v. Quillen, 840 4 F.3d at 686, 689-91 (9th Cir. 2016). Evidence probative of retaliatory animus includes proximity 5 in time between the protected speech and the alleged adverse action, prison official’s expressed 6 opposition to the speech, and prison official’s proffered reason for the adverse action was false or 7 pretextual. See id. at 690. Mere speculation that defendants acted out of retaliation is not 8 sufficient. Wood v. Yordy, 753 F.3d 899, 904 (9th Cir. 2014) (citing cases) (affirming grant of 9 summary judgment where no evidence that defendants knew about plaintiff’s prior lawsuit, or that 10 defendants’ disparaging remarks were made in reference to prior lawsuit). 11 It appears that some of the alleged retaliation was Defendant issuing an RVR due to 12 conduct that occurred before Plaintiff’s filing of grievances. Plaintiff should also provide more 13 information how racial discrimination was the basis for Defendant’s actions. Plaintiff should 14 address these issues in an amended complaint. With respect to the allegation that Defendant called 15 Plaintiff a snitch, Plaintiff should provide information regarding the context of this incident. 16 CONCLUSION 17 1. The motion to amend (dkt. 3) is GRANTED and the court has reviewed the most recent 18 submitted complaint. The complaint (dkt. 4) is DISMISSED with leave to amend in accordance 19 with the standards set forth above. The amended complaint must be filed within twenty-eight (28) 20 days of the date this order is filed, and it must include the caption and civil case number used in 21 this order and the words “AMENDED COMPLAINT” on the first page. Because an amended 22 complaint completely replaces the original complaint, Plaintiff must include in it all the claims he 23 wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Plaintiff may not 24 incorporate material from the original Complaint by reference. Failure to amend within the 25 designated time will result in dismissal of this case. 26 2. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the court 27 informed of any change of address by filing a separate paper with the clerk, headered “Notice of 1 may result in dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil 2 Procedure 41(b). 3 IT IS SO ORDERED. 4 || Dated: September 13, 2023 5 6 R@BERT M. ILLMAN 7 United States Magistrate Judge 8 9 10 11 12 © 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28