Opinion
1:20-cv-01253-DAD-SAB (PC)
06-10-2021
MELVIN R. ARRANT, Plaintiff, v. KELLY SANTORO, et al., Defendants.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND GRANTING DEFENDANT HERRERA'S MOTION TO DISMISS
(Doc. Nos. 22, 25)
Plaintiff Melvin R. Arrant is a state prisoner appearing pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On April 30, 2021, the assigned magistrate judge issued findings and recommendations recommending that defendant O. Herrera's motion to dismiss (Doc. No. 22) be granted. (Doc. No. 25.) Specifically, the magistrate judge recommendation that plaintiff's First Amendment retaliation claim against defendant Herrera be dismissed, without leave to amend, due to plaintiff's failure to state a cognizable claim upon which relief may be granted. (Id. at 8.) In so recommending, the magistrate judge concluded that plaintiff failed to sufficiently allege that defendant had taken an “adverse action” against him (a requisite element of a retaliation claim) because the allegedly falsified counseling-only chrono that defendant Herrera had issued to plaintiff does not constitute an “adverse action.” (Id. at 4-8.) The findings and recommendations were served on the parties and contained notice that any objections thereto were to be filed within twenty-one (21) days after service. (Id. at 8-9.) On May 19, 2021, plaintiff filed objections to the pending findings and recommendations. (Doc. No. 26.) Defendant Herrera did not file any objections but did file a response to plaintiff's objections on June 2, 2021. (Doc. No. 28.)
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a de novo review of the case. Having carefully reviewed the entire file, including plaintiff's objections and defendant's responses thereto, the court finds the findings and recommendations to be supported by the record and by proper analysis.
In his objections to the pending findings and recommendations, plaintiff focuses on explaining why he believes that defendant Herrera falsified the counseling-only chrono. (Doc. No. 26 at 3-6.) Plaintiff's explanations and beliefs in this regard, however, are not relevant to the court's analysis of defendant Herrera's motion to dismiss. In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In other words, the court has already assumed for the purposes of defendant's motion to dismiss that defendant Herrera did falsify the counseling-only chrono as plaintiff has alleged in his complaint. Accordingly, plaintiff's objections in this regard provide no basis upon which to reject the pending findings and recommendations.
In addition, plaintiff did not meaningfully address the magistrate judge's conclusion that the issuance of a counseling-only chrono (falsified or not) does not constitute an adverse action or address the many cases cited in the findings and recommendations in which district courts have similarly concluded that issuance of a counseling-only chrono to is not an adverse action sufficient to serve as the basis for a retaliation claim. (See Doc. No. 25 at 6-7.)
Accordingly:
1. The findings and recommendations issued on April 30, 2021 (Doc. No. 25) are adopted in full;
2. Defendant Herrera's motion to dismiss (Doc. No. 22) is granted;
3. The Clerk of the Court is directed to terminate defendant Herrera as a named defendant in this action; and
4. The remaining defendants shall file an answer to the complaint within twenty-one (21) days from the date of service of this order.
IT IS SO ORDERED.