Rhodes v. Ford ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KAVIN MAURICE RHODES, Case No. 20-cv-03128-PJH 8 Plaintiff, ORDER OF SERVICE v. 9 10 D. FORD, et al., Defendants. 11 12 13 Plaintiff, a state prisoner, proceeds with a pro se civil rights complaint under 42 14 U.S.C. § 1983. The original complaint was dismissed with leave to amend and plaintiff 15 has filed an amended complaint. 16 DISCUSSION 17 STANDARD OF REVIEW 18 Federal courts must engage in a preliminary screening of cases in which prisoners 19 seek redress from a governmental entity or officer or employee of a governmental entity. 20 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and 21 dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief 22 may be granted, or seek monetary relief from a defendant who is immune from such 23 relief. Id. at 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v. 24 Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 25 Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement 26 of the claim showing that the pleader is entitled to relief." "Specific facts are not 27 necessary; the statement need only '"give the defendant fair notice of what the . . . . claim 1 (citations omitted). Although in order to state a claim a complaint “does not need detailed 2 factual allegations, . . . a plaintiff's obligation to provide the 'grounds’ of his 'entitle[ment] 3 to relief' requires more than labels and conclusions, and a formulaic recitation of the 4 elements of a cause of action will not do. . . . Factual allegations must be enough to 5 raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 6 U.S. 544, 555 (2007) (citations omitted). A complaint must proffer "enough facts to state 7 a claim to relief that is plausible on its face." Id. at 570. The United States Supreme 8 Court has recently explained the “plausible on its face” standard of Twombly: “While legal 9 conclusions can provide the framework of a complaint, they must be supported by factual 10 allegations. When there are well-pleaded factual allegations, a court should assume their 11 veracity and then determine whether they plausibly give rise to an entitlement to relief.” 12 Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 13 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 14 elements: (1) that a right secured by the Constitution or laws of the United States was 15 violated, and (2) that the alleged deprivation was committed by a person acting under the 16 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 17 LEGAL CLAIMS 18 Plaintiff presents ten claims of retaliation and failure to protect by prison officials. 19 “Within the prison context, a viable claim of First Amendment retaliation entails five 20 basic elements: (1) An assertion that a state actor took some adverse action against an 21 inmate (2) because of (3) that prisoner's protected conduct, and that such action 22 (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not 23 reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 24 567-68 (9th Cir. 2005) (footnote omitted). Accord Pratt v. Rowland, 65 F.3d 802, 806 (9th 25 Cir. 1995) (prisoner suing prison officials under § 1983 for retaliation must allege that he 26 was retaliated against for exercising his constitutional rights and that the retaliatory action 27 did not advance legitimate penological goals, such as preserving institutional order and 1 Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985) (contention that actions “arbitrary 2 and capricious” sufficient to allege retaliation). The prisoner must show that the type of 3 activity he was engaged in was constitutionally protected, that the protected conduct was 4 a substantial or motivating factor for the alleged retaliatory action, and that the retaliatory 5 action advanced no legitimate penological interest. Hines v. Gomez, 108 F.3d 265, 267- 6 68 (9th Cir. 1997) (inferring retaliatory motive from circumstantial evidence). 7 The Eighth Amendment requires that prison officials take reasonable measures to 8 guarantee the safety of prisoners. Farmer v. Brennan, 511 U.S. 825, 832 (1994). In 9 particular, prison officials have a duty to protect prisoners from violence at the hands of 10 other prisoners. Id. at 833; Cortez v. Skol, 776 F. 3d 1046, 1050 (9th Cir. 2015); Hearns 11 v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). The failure of prison officials to protect 12 inmates from attacks by other inmates or from dangerous conditions at the prison violates 13 the Eighth Amendment when two requirements are met: (1) the deprivation alleged is, 14 objectively, sufficiently serious; and (2) the prison official is, subjectively, deliberately 15 indifferent to inmate health or safety. Farmer, 511 U.S. at 834. A prison official is 16 deliberately indifferent if he knows of and disregards an excessive risk to inmate health or 17 safety by failing to take reasonable steps to abate it. Id. at 837. 18 Plaintiff presents the following claims: 19 1. Plaintiff states that on December 13, 2019, defendant Ford stated that he 20 received an email from defendant litigation coordinator Reynolds that he should not make 21 any more legal copies for plaintiff because of prison regulations and that Reynolds 22 wanted plaintiff to dismiss his federal habeas petition. Liberally construed, this states a 23 cognizable claim of retaliation against Ford and Reynolds. 24 2. Plaintiff states on December 26, 2019, defendants Ford and Buckhorn sought 25 to have plaintiff withdraw an inmate appeal and when he refused, they confiscated his 26 legal papers and filed a false rules violation report. Liberally construed, this states a 27 cognizable claim of retaliation against these defendants. 1 3. Also on December 26, 2019, plaintiff filed an additional appeal that was 2 improperly screened out by defendant Lunsford. On January 22, 2020, defendants 3 Foulknier and Bond ordered plaintiff to strip down to his underwear and then told other 4 nearby prisoners that all cells are being searched due to plaintiff filing complaints on 5 library staff and the other prisoner should deal with plaintiff on the yard. Liberally 6 construed, this states a cognizable claim of retaliation against Foulknier and Bond. 7 Plaintiff has failed to state a claim against Lunsford because there is no constitutional 8 right to a prison administrative appeal or grievance system. See Ramirez v. Galaza, 334 9 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). 10 4. Plaintiff alleges that on January 28, 2020, defendants Ford and Buckhorn 11 conspired to have plaintiff assaulted by other inmates. He alleges that they manipulated 12 the computer system to have plaintiff be at the library at a specific time, at which point 13 Ford pointed out plaintiff to several inmates who attacked him. Plaintiff states this was in 14 retaliation for the filing of staff complaints. Liberally construed, this states a cognizable 15 claim of retaliation and failure to protect against these defendants. 16 5. Plaintiff states that defendant Markel told plaintiff that as long he kept filing 17 complaints he would be double celled and then she had plaintiff taken to classification 18 where he was denied a transfer and falsely labeled as a gang member. On February 3, 19 2020, Lunsford, Markel and Royal came to plaintiff’s housing section and informed the 20 prisoners that the entire prison was going on lockdown due to plaintiff’s filing of 21 complaints. Liberally construed, this states a cognizable claim of retaliation against these 22 defendants. Plaintiff has failed to link the other defendants in this claim to the alleged 23 constitutional deprivation, so they are dismissed from this claim. 24 6. On March 22, 2020, defendant Corder told plaintiff that if he did not dismiss his 25 federal habeas petition then he would be celled with a prisoner with Covid. Plaintiff 26 refused to dismiss the petition and a rules violation report was filed against him for 27 refusing a cellmate. Liberally construed, this states a cognizable claim of retaliation 1 alleged constitutional deprivation so that defendant is dismissed from this claim. 2 7. Plaintiff alleges that defendant Chapa fabricated a rules violation report against 3 plaintiff in retaliation for not withdrawing an appeal. Liberally construed, this states a 4 cognizable claim of retaliation against this defendant. Plaintiff has failed to link the other 5 defendants in this claim to the alleged constitutional deprivation, so they are dismissed 6 from this claim. 7 8. Plaintiff asserts that on April 15, 2020, defendants Chapa and Hamm went to 8 plaintiff’s cell and broke his typewriter due to his filing of appeals. Plaintiff also states that 9 Chapa arranged to have a gang member moved near plaintiff who later attacked him. 10 Liberally construed, this states a cognizable claim of retaliation against both defendants 11 and failure to protect against Chapa. Plaintiff has failed to link the other defendants in 12 this claim to the alleged constitutional deprivations, so they are dismissed from this claim. 13 9. Plaintiff states that on August 28, 2020, defendant Perner fabricated a rules 14 violation report against plaintiff for his refusal to dismiss his federal habeas petition. 15 Liberally construed, this states a cognizable claim of retaliation against this defendant. 16 10. Plaintiff alleges that on September 1, 2020, defendant Perner attempted to 17 have plaintiff withdraw an appeal and when plaintiff refused, Perner brought over another 18 inmate to threaten plaintiff. Liberally construed, this states a cognizable claim of 19 retaliation against this defendant. Plaintiff has failed to link the other defendants in this 20 claim to the alleged constitutional deprivation, so they are dismissed from this claim. 21 CONCLUSION 22 1. This case proceeds against the defendants and claims set forth above. All 23 other defendants and claims are dismissed. The clerk shall issue a summons and the 24 United States Marshal shall serve, without prepayment of fees, copies of the amended 25 complaint (Docket No. 16) with attachments and copies of this order on the following 26 defendants at Pelican Bay State Prison: D. Ford, Wendy Reynolds, B. Buckhorn, 27 Foulknier, Bond, M. Markel, D. Lunsford, K. Royal, A. Corder, D. Chapa, Hamm and 1 2. In order to expedite the resolution of this case, the court orders as follows: 2 a. No later than sixty days from the date of service, defendants shall file a 3 motion for summary judgment or other dispositive motion. The motion shall be supported 4 by adequate factual documentation and shall conform in all respects to Federal Rule of 5 Civil Procedure 56, and shall include as exhibits all records and incident reports 6 stemming from the events at issue. If defendants are of the opinion that this case cannot 7 be resolved by summary judgment, they shall so inform the court prior to the date the 8 summary judgment motion is due. All papers filed with the court shall be promptly served 9 on the plaintiff. 10 b. At the time the dispositive motion is served, defendants shall also serve, 11 on a separate paper, the appropriate notice or notices required by Rand v. Rowland, 154 12 F.3d 952, 953-954 (9th Cir. 1998) (en banc), and Wyatt v. Terhune, 315 F.3d 1108, 1120 13 n. 4 (9th Cir. 2003). See Woods v. Carey, 684 F.3d 934, 940-941 (9th Cir. 2012) (Rand 14 and Wyatt notices must be given at the time motion for summary judgment or motion to 15 dismiss for nonexhaustion is filed, not earlier); Rand at 960 (separate paper requirement). 16 c. Plaintiff's opposition to the dispositive motion, if any, shall be filed with 17 the court and served upon defendants no later than thirty days from the date the motion 18 was served upon him. Plaintiff must read the attached page headed "NOTICE -- 19 WARNING," which is provided to him pursuant to Rand v. Rowland, 154 F.3d 952, 953- 20 954 (9th Cir. 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 21 1988). 22 If defendants file a motion for summary judgment claiming that plaintiff failed to 23 exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a), 24 plaintiff should take note of the attached page headed "NOTICE -- WARNING 25 (EXHAUSTION)," which is provided to him as required by Wyatt v. Terhune, 315 F.3d 26 1108, 1120 n. 4 (9th Cir. 2003). 27 d. If defendant wishes to file a reply brief, he shall do so no later than 1 e. The motion shall be deemed submitted as of the date the reply brief is 2 due. No hearing will be held on the motion unless the court so orders at a later date. 3 3. All communications by plaintiff with the court must be served on defendant, or 4 defendant’s counsel once counsel has been designated, by mailing a true copy of the 5 document to defendants or defendants' counsel. 6 4. Discovery may be taken in accordance with the Federal Rules of Civil 7 Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or 8 Local Rule 16 is required before the parties may conduct discovery. 9 5. It is plaintiff's responsibility to prosecute this case. Plaintiff must keep the court 10 informed of any change of address by filing a separate paper with the clerk headed 11 “Notice of Change of Address.” He also must comply with the court's orders in a timely 12 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute 13 pursuant to Federal Rule of Civil Procedure 41(b). 14 IT IS SO ORDERED. 15 Dated: October 29, 2020 16 17 PHYLLIS J. HAMILTON 18 United States District Judge 19 20 21 22 23 24 25 26 27 1 NOTICE -- WARNING (SUMMARY JUDGMENT) 2 If defendants move for summary judgment, they are seeking to have your case 3 dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil 4 Procedure will, if granted, end your case. 5 Rule 56 tells you what you must do in order to oppose a motion for summary 6 judgment. Generally, summary judgment must be granted when there is no genuine issue 7 of material fact--that is, if there is no real dispute about any fact that would affect the 8 result of your case, the party who asked for summary judgment is entitled to judgment as 9 a matter of law, which will end your case. When a party you are suing makes a motion 10 for summary judgment that is properly supported by declarations (or other sworn 11 testimony), you cannot simply rely on what your complaint says. Instead, you must set 12 out specific facts in declarations, depositions, answers to interrogatories, or authenticated 13 documents, as provided in Rule 56(e), that contradict the facts shown in the defendant’s 14 declarations and documents and show that there is a genuine issue of material fact for 15 trial. If you do not submit your own evidence in opposition, summary judgment, if 16 appropriate, may be entered against you. If summary judgment is granted, your case will 17 be dismissed and there will be no trial. 18 NOTICE -- WARNING (EXHAUSTION) 19 If defendants file a motion for summary judgment for failure to exhaust, they are 20 seeking to have your case dismissed. If the motion is granted it will end your case. 21 You have the right to present any evidence you may have which tends to show 22 that you did exhaust your administrative remedies. Such evidence may be in the form of 23 declarations (statements signed under penalty of perjury) or authenticated documents, 24 that is, documents accompanied by a declaration showing where they came from and 25 why they are authentic, or other sworn papers, such as answers to interrogatories or 26 depositions. If defendants file a motion for summary judgment for failure to exhaust and it 27 is granted, your case will be dismissed and there will be no trial.