Opinion
No. C 02-3623 MMC (PR)
September 4, 2002
ORDER OF DISMISSAL
Carl Lee Callegari ("plaintiff"), a California prisoner currently incarcerated at Salinas Valley State Prison, filed this pro se civil rights action under 42 U.S.C. § 1983. Plaintiff alleges that "defendants," SVSP employees, retaliated against him for filing a lawsuit in 1999 by placing him on a modified exercise program for thirteen and one half months. By separate order, plaintiff has been granted leave to proceed in forma pauperis.
DISCUSSION
A. Standard of Review
A federal court must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).
B. Legal Claim
Plaintiff claims that defendants retaliated against him for filing a lawsuit in 1999 against prison doctors, by placing him on a "modified program" in which his yard exercise time was restricted for thirteen and one half months. A prisoner suing prison officials under § 1983 for retaliation must allege that he was retaliated against for exercising his constitutional rights and that the retaliatory action did not advance legitimate penological goals, such as preserving institutional order and discipline. See Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). The prisoner must show that the type of activity he was engaged in was constitutionally protected, that the protected conduct was a substantial or motivating factor for the alleged retaliatory action, and that the retaliatory action advanced no legitimate penological interest. See Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997).
Plaintiff also alleges that the claimed retaliation constitutes cruel and unusual punishment. The Court, however, treats the retaliation claim as a First Amendment claim rather than an Eighth Amendment claim. See Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 283-84(1977)
Plaintiff alleges he was engaged in protected conduct, specifically, the filing of a lawsuit. Plaintiff also alleges that the revocation of his yard privileges was motivated by his filing of the lawsuit. This latter allegation, however, reflects no more than plaintiffs speculation, based on the fact that his yard privileges were revoked after the lawsuit was filed. Any inference of a causal connection between the two events is considerably weakened by plaintiffs allegation that his exercise privileges were revoked more than a year after he filed the lawsuit. Equally important, plaintiff alleges that defendants told him his exercise privileges were revoked because he refused to accept a black cellmate assigned to him by prison officials. Plaintiff concedes in his complaint that he refused to accept the assigned inmate, claiming that he should not be required to be housed with a black inmate. These allegations, coupled with the length of time that elapsed between the filing of the lawsuit and the restriction in question, strongly indicate that the revocation of plaintiffs exercise privileges was not caused by the 1999 lawsuit, but rather by his refusal to accept the assigned cellmate. Plaintiff has alleged no specific statement or action by any defendant linking the revocation of his exercise privileges to the lawsuit he filed. See generally Branch v. Tunnell, 937 F.2d 1382, 1386 (9th Cir. 1991) (requiring plaintiffs to state in their complaint nonconclusory allegations of specific and concrete facts which, if proven, would establish the requisite state of mind to establish a constitutional tort). Plaintiffs constitutional claim of retaliation must be based on more than the mere allegation that he filed a lawsuit and at some later date lost his exercise privileges. He must allege circumstances that indicate the grievance caused the allegedly retaliatory discipline. See Estate of Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999) (holding liability under § 1983 requires causal connection between defendant's actions and alleged violation of plaintiffs rights).
Plaintiffs allegations, even liberally construed in his favor, negate any inference that the protected conduct was a substantial or motivating factor in defendants' actions. See Hines, 108 F.3d at 267 (9th Cir. 1997). Consequently, the complaint fails to state a claim under § 1983. There is no indication that the claim could be cured by amendment as plaintiffs factual allegations establish the absence of a constitutional violation. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc).
CONCLUSION
For the reasons expressed, plaintiffs claims under § 1983 are DISMISSED.
All pending motions are terminated.
The clerk shall close the file.
IT IS SO ORDERED.
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED plaintiff's claims under 1983 are DISMISSED.
All pending motions are TERMINATED.