Opinion
No. 4:15-CV-05094-SMJ
06-28-2016
MATTHEW G. SILVA, Plaintiff, v. JEFFREY UTTECHT, et al., Defendants.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
Before the Court, without oral argument, is Defendant's Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6), ECF No. 6. Defendants asks the Court to dismiss the action because the Plaintiff's complaint is vague and conclusory and fails to establish any constitutional claims against the Defendants. The Court agrees, and grants the Defendants' motion.
Plaintiff primary claims are that Defendants (1) retaliated against him and prevented him from accessing the courts during his incarceration from 2012 and 2013 in violation of the First Amendment, and (2) destroyed an unidentified typewriter.
In reviewing a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a court may grant a dismissal for failure to state a claim "if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Keniston v. Roberts, 717 F.2d 1295, 1300 (9th Cir. 1983) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable theory." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988).
42 U.S.C. § 1983To state a claim under 42 U.S.C. § 1983, at least two elements must be met: (1) the defendant must be a person acting under color of state law; and (2) his conduct must have deprived the plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327 (1986). Implicit in the second element is a third element of causation. See Mt. Healthy City School Dist. Bd. Of Educ. v. Doyle, 429 U.S. 274, 286-87 (1977). When a plaintiff fails to allege or establish one of the three elements, his complaint must be dismissed. Id. Thus, Silva must allege sufficient facts showing how each defendant committed an affirmative act, or omitted to perform an act, that he or she is legally required to do, and which causes the plaintiff's deprivation. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
Here, Defendants Uttecht, Bailey, and Lang are named under a respondeat superior theory of liability. Defendants in a 42 U.S.C. § 1983 action, however, cannot be held liable based on a theory of respondeat superior or vicarious liability. Starr v. Baca, 652 F.3d 1202, 1206-07 (9th Cir. 2011). Therefore, Defendants Uttecht, Bailey, and Lang are dismissed from this case.
Similarly, Plaintiff fails to allege sufficient facts establishing the personal participation of Defendants Scantlin, Ford, Fluaitt, Scilley, McCourtie, Carr and Dittman. The sole allegation against these seven Defendants is that Silva allegedly notified them of vaguely described retaliation against him but Defendants failed to stop the retaliatory action. None of the Defendants are alleged to have committed a retaliatory act, or omitted to perform an act, that they were legally required to perform.
Additionally, Defendants Lang, Dittman, and Carr are not prison employees but assistant attorneys general. See ECF No. 1-1 at 3-4. As employees of an independently elected Attorney General, they do not control actions taken by the Department or its employees. See RCW 43.10.030, .040. Plaintiff can prove no set of facts in support of his claim that would entitle him to relief against these three Defendants. See Kinston v. Roberts, 717 F.2d 1295, 1300 (9th Cir. 1983).
Silva's vague and tenuous allegations against the Defendants are not sufficient to show personal participation. This is fatal to Silva's complaint. Therefore, Defendants Uttecht, Bailey, Scantlin, Ford, Fluaitt, Scilley, McCourtie, Lang, Carr, and Dittman are dismissed from the action.
Access to Counts
Silva also fails to allege an access to courts claim upon which relief can be granted against the Defendants. Silva's claims are all in the past and he must show actual injury. See Lewis, 518 U.S. at 349. Actual injury is a jurisdictional requirement that flows from the standing doctrine and may not be waived. A backward-looking access claim must identify a nonfrivolous or arguable claim lost due to the Defendants' actions. Silva v. Di Vittorio, 658 F.3d 1090, 1102 (9th Cir. 2011)
Plaintiff must identify his "predicate claim . . . well enough to apply the 'nonfrivolous' test and to show that the 'arguable' nature of the underlying claim is more than hope." Christopher v. Harbury, 536 U.S. 403, 412-15 (2002). The complaint should "state the underlying claim in accordance with Federal Rule of Civil Procedure 8(a) just as if it were being independently pursued, and a like plain statement should describe any remedy available under the access claim and presently unique to it." Id. at 417-418. Failure to provide sufficient information about the underlying claim(s) warrants dismissal of the case. See Christopher, 536 U.S. at 418-19.
Here, Plaintiff asserts that the Defendants' unidentified actions caused cases to be dismissed and caused him to settle cases for "pennies on the dollar." ECF No. 1-1 at 5. However, Plaintiff fails to identify these cases and the nonfrivolous or arguable claims he was unable to pursue. Silva's failure to properly allege these cases and and his failure to provide any actual injury based on Defendants' actions is fatal to his access to courts claim.
This claim is dismissed.
Retaliation Claim
To succeed on a retaliation claim in the prison context, an inmate must prove: (1) a defendant took some adverse action against the inmate, (2) because of (3) the inmate's protected conduct and that this action (4) chilled the inmate's exercise of his First Amendment rights and (5) did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). Finally, an inmate bringing a retaliation claim must show that Defendants' actions did not reasonably advance a legitimate correctional goal.
Here, Plaintiff only allegation is that Defendants were informed of an alleged pattern of retaliation and none of the Defendants prevented the alleged retaliation.
Plaintiff's allegations do not establish that any Defendant took any adverse actions against him due to his activity in protected conduct. He also fails to allege that his conduct has been chilled. Therefore, Silva cannot establish Defendants took adverse action against him due to his exercise of constitutionally protected conduct. Furthermore, he fails to show his exercise of constitutionally protected conduct was a substantial or motivating factor behind the Defendants' conduct.
This claim is dismissed.
Typewriter Claim
Silva alleges Defendants are liable for the destruction of an unidentified typewriter. Silva fails to indicate what, if any, actions any one Defendant took to cause the loss of this unspecified typewriter. This alone is sufficient to dismiss this claim. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
This claim is dismissed.
Accordingly, IT IS HEREBY ORDERED:
1. Defendant's Motion to Dismiss, ECF No. 6, is GRANTED.
2. All claims are DISMISSED WITHOUT PREJUDICE, with all parties to bear their own costs and attorneys' fees.
3. All pending motions are DENIED AS MOOT.
4. All hearings and other deadlines are STRICKEN.
5. The Clerk's Office is directed to CLOSE this file.
DATED this 28th day of June 2016.
/s/_________
SALVADOR MENDOZA, JR.
United States District Judge