Opinion
CASE NO. 1:11-cv-00599-AWI-GBC (PC) ECF No. 1
09-16-2011
MARK SAVAGE, Plaintiff, v. TOMAS VILLAGRANA, Defendants.
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
AMENDED COMPLAINT DUE WITHIN THIRTY DAYS
SCREENING ORDER
I. PROCEDURAL HISTORY
Plaintiff Mark Savage ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on April 14, 2011. (ECF No. 1.)
Plaintiff's Complaint is now before this Court for screening. For the reasons set forth below, the Court finds that Plaintiff has failed to state any claims upon which relief may be granted.
II. SCREENING REQUIREMENTS
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.
III. SUMMARY OF COMPLAINT
Plaintiff brings this action for violations of the First and Eighth Amendments. Plaintiff names Tomas Villagrana as the lone Defendant.
Plaintiff alleges as follows: From August 2008 until January 2010, Plaintiff worked for the Prison Industry Authority ("PIA") as a hand packer and Defendant Villagrana was his direct supervisor. Throughout his employment, Plaintiff voiced concerns about operations, rules, policies, and practices in the shop. In November 2009, Plaintiff expressed these concerns to other inmate employees as well as Defendant. Specifically, Plaintiff was concerned that Defendant was unsuited for his supervisory role in the shop and told everyone that he was going to file a grievance. In December 2009, Defendant created a report stating that Plaintiff "needs to limit his complaints to . . . justifiable situations." This report was placed in Plaintiff's central file. On January 17, 2010, Defendant filed a false rules violation report ("RVR") alleging that Plaintiff had spit into the peanut butter packaging machine. Video footage of Plaintiff's conduct was also provided. Because of the RVR, Plaintiff was placed in administrative segregation ("ad-seg") pending investigation and resolution of the matter. The rehousing caused Plaintiff to lose his job. On July 13, 2010, Plaintiff was found not guilty of the alleged rule violation.
During Plaintiff's placement in ad-seg, Defendant told the other inmate employees that Plaintiff had spit into the peanut butter. Defendant told the inmate employees to spread this information to the rest of the inmate population. Plaintiff began being harassed by prison guards and hearing about threats to his safety from other prisoners.
Plaintiff seeks compensatory and punitive damages, and declaratory relief.
IV. ANALYSIS
The Civil Rights Act under which this action was filed provides:
Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured42 U.S.C. § 1983. "Section 1983 . . . creates a cause of action for violations of the federal Constitution and laws." Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) (internal quotations omitted).
by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
A. First Amendment
Plaintiff states that he was being retaliated against by Defendant Villagrana for exercising his constitutional rights.
"Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal." Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).
Filing a grievance is a protected action under the First Amendment. Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989). Having a false rules violation report filed against him and being placed in ad-seg is an adverse action. Thus, if Plaintiff is alleging retaliation because he filed a grievance, then he has alleged facts sufficient to meet the first and third prongs of a retaliation claim.
The second element of a prisoner retaliation claim focuses on causation and motive. See Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009). A plaintiff must show that his protected conduct was a "'substantial' or 'motivating' factor behind the defendant's conduct." Id. (quoting Morgan, 874 F.2d at 1314). Although it can be difficult to establish the motive or intent of the defendant, a plaintiff may rely on circumstantial evidence. Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003) (finding that a prisoner established a triable issue of fact regarding prison officials' retaliatory motives by raising issues of suspect timing, evidence, and statements); Hines v. Gomez, 108 F.3d 265, 267-68 (9th Cir. 1997); Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995) ("timing can properly be considered as circumstantial evidence of retaliatory intent"). Plaintiff alleges that he told everyone, including Villagrana, that he was planning on filing a grievance against Defendant Villagrana. However, Plaintiff does not state that he ever filed a grievance. Then Villagrana filed two reports regarding Plaintiff's behavior, one in December 2009 and the RVR in January 2010. The timing appears suspect for the first report regarding Plaintiff's complaints. However, the RVR was filed months later. As currently described by Plaintiff, the Court is unable to see the connection between the RVR and Plaintiff's indication that he was going to file a grievance. Thus, Plaintiff has not met the second element in his retaliation claim.
With respect to the fourth prong, "[it] would be unjust to allow a defendant to escape liability for a First Amendment violation merely because an unusually determined plaintiff persists in his protected activity . . . ." Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283, 1300 (9th Cir. 1999). The correct inquiry is to determine whether an official's acts would chill or silence a person of ordinary firmness from future First Amendment activities. Rhodes, 408 F.3d at 568-69 (citing Mendocino Envtl. Ctr., 192 F.3d at 1300). The Court is unable to determine whether Plaintiff's activities were chilled, as it appears that he never filed a grievance in the first place. Thus, Plaintiff has not met the fourth prong for a retaliation claim.
With respect to the fifth prong, a prisoner must affirmatively allege that "the prison authorities' retaliatory action did not advance legitimate goals of the correctional institution or was not tailored narrowly enough to achieve such goals." Rizzo, 778 F.2d at 532. This is not a high burden to reach. See id. (prisoner's allegations that search was arbitrary and capricious sufficient to satisfy this inquiry). Plaintiff states that Defendant's action of filing a false RVR against him did not advance any legitimate correctional goals. Thus, he has satisfied the fifth prong.
Because Plaintiff has failed to satisfy all elements of a retaliation claim, this claim fails. Plaintiff will be given one additional opportunity to amend to attempt to state such a claim. Plaintiff must be more clear in his description of events including whether he filed a grievance, whether Defendant knew he filed a grievance, a connection between the RVR and the grievance, any adverse action caused by the first report.
B. Eighth Amendment
Plaintiff appears to be alleging that Defendant Villagrana subjected him to cruel and unusual punishment when he told other inmates that Plaintiff spit into the food.
The Eighth Amendment's prohibition against cruel and unusual punishment protects prisoners from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (citing Farmer v. Brennan, 511 U.S. 825, 832 (1994)). Prison officials therefore have a "duty to ensure that prisoners are provided with adequate shelter, food, clothing, sanitation, medical care, and personal safety." Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (citations omitted). To establish a violation of this duty, a prisoner must satisfy both an objective and subjective component. See Wilson v. Seiter, 501 U.S. 294, 298 (1991). First, a prisoner must demonstrate an objectively serious deprivation, one that amounts to the denial of "the minimal civilized measures of life's necessities ." Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996) (quoting Rhodes v. Chapman, 452 U.S. 337, 346 (1981)). In determining whether a deprivation is sufficiently serious, a court must consider "the circumstances, nature, and duration" of the deprivation. Johnson, 217 F.3d at 731. "The more basic the particular need, the shorter the time it can be withheld." Hoptowit v. Ray, 682 F.2d 1237, 1259 (9th Cir. 1982).
Second, a prisoner must also demonstrate that prison officials acted with a sufficiently culpable state of mind, that of "deliberate indifference." Wilson, 501 U.S. at 303; Johnson, 217 F.3d at 733. A prison official is liable for denying an inmate humane conditions of confinement only if "the official knows of and disregards an excessive risk to inmate health and safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837.
Plaintiff fails to allege sufficient facts to sustain an Eighth Amendment claim. Plaintiff states that Defendant Villagrana told inmates to tell other inmates that Plaintiff spit in the food that was served to them. However, Plaintiff did not suffer any consequences because of this other than verbal harassment which is not sufficient. Thus, it does not appear that there was any Eighth Amendment violation here. This claim fails. Plaintiff will be given leave to amend.
The Court also notes that allegations of verbal harassment and abuse fail to state a claim cognizable under 42 U.S.C. § 1983. See Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir. 1997); Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, 1353 (9th Cir. 1981), aff'd sub nom. Kush v. Rutledge, 460 U.S. 719 (1983); see, e.g., Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996), amended 135 F.3d 1318 (9th Cir. 1998) (disrespectful and assaultive comments by prison guard not enough to implicate Eighth Amendment); Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (directing vulgar language at prisoner does not state constitutional claim); Burton v. Livingston, 791 F.2d 97, 99 (8th Cir. 1986) ("mere words, without more, do not invade a federally protected right"); Ellingburg v. Lucas, 518 F.2d 1196, 1197 (8th Cir. 1975) (prisoner does not have cause of action under Section 1983 for being called obscene name by prison employee); Batton v. North Carolina, 501 F.Supp. 1173, 1180 (E.D.N.C. 1980) (mere verbal abuse by prison officials does not state claim under Section 1983).
C. False Reports
Plaintiff states that Defendant created two false reports against him. This appears to be a due process argument.
A prisoner does not have a "constitutionally guaranteed immunity from being falsely or wrongly accused of conduct which may result in the deprivation of a protected liberty interest." Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989). Rather, the Fourteenth Amendment provides that a prisoner "has a right not to be deprived of a protected liberty interest without due process of law." Id. Thus, as long as a prisoner receives proper procedural due process, a claim based on the falsity of disciplinary charges, standing alone, does not state a constitutional claim. Id.; Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986); Hanrahan v. Lane, 747 F.2d 1137, 1140-41 (7th Cir. 1984). Under the Due Process Clause, a prisoner is entitled to certain procedural protections when he is charged with a disciplinary violation. Wolff v. McDonnell, 418 U.S. 539, 564-571 (1974). These protections include a written notice at least twenty-four hours before the disciplinary hearing, an opportunity to call witnesses and present documentary evidence, and a written statement by the fact-finder as to the evidence relied upon and the reasons for the disciplinary action taken. Id.
Here, Plaintiff states that he was falsely accused of spitting in the food. It appears from the statement of his case that he then received all of the due process he was entitled and was exonerated. Thus, there is no violation for the RVR. As to the first report, Plaintiff does not state that anything happened because of it. He does not state that he suffered any consequences or that he was denied any due process. Thus, this also fails to state a claim. The Court will give Plaintiff one additional opportunity to amend such claim. Plaintiff would be well-served to concentrate his efforts on his other claims.
V. CONCLUSION AND ORDER
The Court finds that Plaintiff's Complaint fails to state any Section 1983 claims upon which relief may be granted. The Court will provide Plaintiff time to file an amended complaint to address the potentially correctable deficiencies noted above. See Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). In his Amended Complaint, Plaintiff must demonstrate that the alleged incident or incidents resulted in a deprivation of his constitutional rights. Iqbal, 129 S.Ct. at 1948-49. Plaintiff must set forth "sufficient factual matter . . . to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). Plaintiff must also demonstrate that each defendant personally participated in the deprivation of his rights. Jones, 297 F.3d at 934.
Plaintiff should note that although he has been given the opportunity to amend, it is not for the purposes of adding new defendants or claims. Plaintiff should focus the amended complaint on claims and defendants relating solely to the issues discussed herein.
Finally, Plaintiff is advised that Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. As a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no longer serves any function in the case. Therefore, in an amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged. The amended complaint should be clearly and boldly titled "First Amended Complaint," refer to the appropriate case number, and be an original signed under penalty of perjury.
Based on the foregoing, it is HEREBY ORDERED that:
1. Plaintiff's Complaint is dismissed for failure to state a claim, with leave to file an amended complaint within thirty (30) days from the date of service of this order;
2. Plaintiff shall caption the amended complaint "First Amended Complaint" and refer to the case number 1:11-cv-599-AWI-GBC (PC); and
3. If Plaintiff fails to comply with this order, this action will be dismissed for failure to state a claim upon which relief may be granted.
IT IS SO ORDERED.
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UNITED STATES MAGISTRATE JUDGE