Opinion
CASE NO. 1:12-cv-00860-LJO-MJS (PC)
01-27-2016
ERIC WHEELER, Plaintiff, v. K. ALICESON, et al., Defendants.
FINDINGS AND RECOMMENDATION TO DENY MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT
(ECF No. 87)
FOURTEEN (14) DAY OBJECTION DEADLINE
I. PROCEDURAL HISTORY
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 28 U.S.C. § 1983. (ECF Nos. 1 & 5.) The action proceeds against Defendants Garcia, Goss, Trevino, Isira, and Coffin on Plaintiff's First Amendment retaliation claim, and against Defendant Isira on Plaintiff's Eighth Amendment medical indifference and state law negligence claims.
Before the Court is Plaintiff's June 24, 2015 motion for leave to file an amended complaint (ECF No. 87), as well as his proposed third amended complaint (ECF No. 88). Defendants filed an opposition. (ECF No. 93), and Plaintiff filed a rely (ECF No. 94). The matter is deemed submitted.
II. LEGAL STANDARD
The decision to grant or deny leave to amend pleadings is within the trial court's discretion. Swanson v. U.S. Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996); United States v. Cnty. of San Diego, 53 F.3d 965, 969 n.6 (9th Cir. 1995).
A party seeking leave to amend pleadings must demonstrate that amendment is proper under Federal Rule of Civil Procedure 15. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992). Under Rule 15(a)(2), the court should freely give leave to amend a pleading "when justice so requires." The Court should apply this policy "with extreme liberality." Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001) (quoting Morongo Band of Mission Indians v. Rose, 893 F. 2d 1074, 1079 (9th Cir. 1990)). "If the underlying facts or circumstances relied upon by a [party] may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits." Forman v. Davis, 371 U.S. 178, 182 (1962).
However, a district court may deny leave to amend where there is "any apparent or declared reason" for doing so, including "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment." Id. These factors are not to be given equal weight. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). Prejudice to the opposing party must be given the greatest weight. Id. "Absent prejudice, or a strong showing of any of the remaining Forman factors, there exists a presumption under Rule 15(a) in favor of granting leave to amend." Id.
III. PARTIES' ARGUMENTS
Plaintiff states that he wishes to amend his complaint to include acts of retaliation by Defendants Garcia and Goss that Plaintiff learned of through discovery and that occurred subsequent to the filing of the operative complaint in this action. He suggests that the amendment will not result in undue delay or prejudice because he does not propose to bring in new defendants, and because he already has advised Defendants of these allegations in his opposition to their pending motion for summary judgment. (ECF No. 87).
Defendants respond that Plaintiff has been dilatory in seeking to amend, was not diligent in conducting discovery, that amendment would prejudice Defendants (who already have deposed Plaintiff and filed a motion for summary judgment), and that amendment would be futile because Plaintiff cannot establish the elements of a retaliation claim. (ECF No. 93.)
IV. PLEADING HISTORY
A. Procedural History
Plaintiff initiated this action on March 25, 2012 with the filing of his initial complaint. (ECF No. 1.) Before that complaint was screened, Plaintiff filed a first amended complaint. (ECF No. 7.) That pleading appeared to be a list of exhibits and did not include factual allegations or legal claims. (See ECF No. 15.) Accordingly, in screening Plaintiff's first amended complaint, the Court provided Plaintiff with the legal standards applicable to the claims Plaintiff appeared to allege in his original, superseded complaint. (Id.)
Plaintiff was given leave to amend (id.), and filed a second amended complaint on January 22, 2013 (ECF No. 17.) The second amended complaint is the operative pleading in this action. Defendants answered on June 10, 2014. (ECF No. 33.) Discovery opened on June 11, 2014. The deadline to amend pleadings was set for December 11, 2014. (Id.) Shortly before the expiration of that deadline, Plaintiff filed a motion for extension of time to amend. (ECF No. 47.) The motion was granted (ECF No. 84), and the instant motion followed (ECF No. 87).
B. Operative Complaint
In the second amended complaint, Plaintiff complains of acts that occurred at California Substance Abuse Treatment Facility ("CSATF") in Corcoran, California. He names as Defendants the following CSATF staff: (1) Warden Ralph Diaz, (2) Warden Kathleen Allison, (3) Raymond Coffin, Chief of Mental Health, (4) Clinician Rocio Garcia, M.S.W., (5) Lillian Goss, L.P.T., (6) Clinician Victor Trevino, M.S.W., and (7) Abdul Isira, Phy.D.
Plaintiff presently is incarcerated at Mule Creek State Prison.
He alleges that these Defendants violated his First, Eight, and Fourteenth Amendment rights, as well as the ADA and state laws. His allegations may be summarized essentially as follows:
Plaintiff suffers from depression, post-traumatic stress disorder, and anxiety. He attributes these disabilities to overcrowded prison conditions at Avenal State Prison (where he was housed immediately prior to CSATF) and other facilities where he was incarcerated over the course of nineteen years.
He arrived at CSATF on June 7, 2010 and was placed in the Enhanced Outpatient Program ("EOP") in the G-1 Facility. Plaintiff was housed in Facility G-1 from June 7, 2010 to January 19, 2011 and from March 24, 2011 to June 23, 2011. Facility G-1 was overcrowded, unsafe, and understaffed, and staff was untrained. Inmates assisted mental health staff with their daily duties and had improper access to Plaintiff's confidential health information and information regarding his commitment offenses. Defendants also did not properly attend to Plaintiff's mental health needs.
On January 19, 2011, Plaintiff was involved in an altercation with another inmate in relation to Plaintiff's commitment offenses. The incident resulted in the use of force against Plaintiff by correctional officers and Plaintiff's placement in Administrative Segregation. Plaintiff filed a staff complaint regarding the involved correctional officers.
Plaintiff was released from Administrative Segregation back to Facility G-1 on March 24, 2011. On March 25, 2011, he wrote a letter to Defendant Allison to complain about staff, advised her that he feared retaliation, and requested to remain in Facility G-1 A Cluster, where Defendants Garcia and Goss worked.
Beginning in April 2011, Plaintiff noticed that Defendants Garcia, Goss, and Trevino, and other mental health staff, began to treat him differently than they had prior to the January 19, 2011 incident. He attributes the change to his staff complaint regarding that incident.
Also beginning in April 2011, Plaintiff observed Defendant Garcia spending a lot of time on the internet on her office computer. She ignored Plaintiff and other female staff. In May 2011, Plaintiff observed Garcia being friendly toward other inmates. In June 2011, Plaintiff confronted Garcia over her ignoring him and favoring other inmates. Garcia became angry and refused to talk to Plaintiff. Shortly thereafter, Plaintiff observed Garcia giving a notebook to another inmate. The next day that inmate told Plaintiff that Garcia was his "girl" and they were going to live together after he paroled. Plaintiff experienced a great deal of "anguish," anxiety and stress over the change in Garcia's demeanor toward him.
In May and June 2011, Plaintiff observed "misconduct" on the part of Defendants Garcia and Goss, and other mental health staff who were using their computers for non-work purposes. He also saw correctional officers flirting with mental health staff.
In June 2011, a mental health staff member told Plaintiff that Garcia did not like him due to his commitment offenses. Upon learning this, Plaintiff began to fear he was at risk for further harm. He decided to report the "misconduct" he had observed to prison staff. Accordingly, on June 14, 2011, he wrote a detailed letter to Defendant Allison regarding the misconduct and his fears of retaliation. Defendant Coffin responded to the letter, stating that retaliation would not be tolerated.
By June 16, 2011, Defendants Garcia, Goss, and Trevino began to retaliate against Plaintiff by writing fabricated reports, CDCR-128 chronos, and CDCR-115s in order to have him transferred out of Facility G-1. More specifically, on June 16, 2011, an interaction occurred between Plaintiff and Defendant Garcia. Plaintiff complimented Garcia's shoes in order to see her reaction. Garcia accused Plaintiff of overfamiliarity. Garcia apparently wrote a mental health report regarding the overfamiliarity and placed it in Plaintiff's file. On June 21, 2011, Defendant Trevino spoke with Plaintiff about the possibility of Plaintiff being moved out of Facility G-1. Trevino wrote a report of this conversation that contained false information regarding Plaintiff's behavior. On June 22, 2011, Garcia addressed her concerns regarding overfamiliarity to a sergeant, who wrote a CDCR-128 chrono regarding Plaintiff's "unusual behavior." On June 23, 2011 Defendants Goss and Garcia made false allegations that Plaintiff was stalking and threatening them. Two CDCR-128 chronos were written regarding these allegations. Plaintiff also received a CDCR-115 Rules Violation Report regarding threats to Defendant Goss, but he was found not guilty. Plaintiff claims Defendant Coffin was aware of this retaliation and failed to protect Plaintiff.
Based on these actions, on June 23, 2011, Plaintiff was transferred to non-EOP housing in an overcrowded gym where his mental health condition could not be effectively treated or accommodated. Upon being transferred, Plaintiff came under the care of Defendant Isira.
Defendant Isira, in concert with the other Defendants, also retaliated against Plaintiff by intentionally falsifying medical records, misdiagnosing Plaintiff as not suffering from a substantiated mental health disorder, providing unacceptable mental health care, and terminating Plaintiff's EOP level of care.
Four months later, Plaintiff was examined by a non-party mental health provider who correctly diagnosed his mental health conditions and transferred Plaintiff back to the EOP level of care.
C. The Court's Screening Order
The Court screened Plaintiff's second amended complaint (ECF Nos. 26 and 28) and concluded it stated no cognizable claims against Defendants Diaz or Allison.
However, the Court concluded that Plaintiff successfully pleaded a cognizable retaliation claim against Defendants Garcia, Goss, Trevino, and Isira based on allegations that they were aware of his staff complaints and grievances, and shortly thereafter made false reports designed to remove him from the EOP unit and the EOP level of care. The Court also found that Plaintiff pleaded a cognizable retaliation claim against Defendant Coffin based on the allegation that Coffin was aware of retaliatory conduct by his subordinates and failed to respond and prevent further retaliation, notwithstanding opportunity to do so.
Lastly, the Court concluded that Plaintiff pleaded cognizable medical indifference and state law negligence claims against Defendant Isira based on the allegation that Isira intentionally misdiagnosed Plaintiff and caused EOP level care and treatment to be terminated, and that Isira's actions were reversed several months later by another health care practitioner.
All other claims and defendants were dismissed with prejudice.
D. Proposed Third Amended Complaint
Plaintiff's proposed third amended complaint does not add any additional defendants. It is brought only against Defendants Coffin, Garcia, Goss, Trevino, and Isira.
Plaintiff's proposed amended complaint reiterates nearly verbatim the facts set forth above relevant to the retaliation, medical indifference, and negligence claims. His additional factual allegations, while somewhat difficult to follow, may be summarized essentially as follows:
Plaintiff also reiterates facts relevant to various claims that previously were dismissed with prejudice. Plaintiff was warned that leave to amend would not be grated for such claims. (ECF No. 84.) Thus, these claims are not addressed herein.
Plaintiff also previously was advised to limit his proposed amended complaint to no more than 25 pages, and was warned that an exceedingly and needlessly lengthy complaint would not be filed. Nevertheless, Plaintiff's proposed amended complaint totals 29 pages, and would be significantly longer if not written in miniscule handwriting. Plaintiff is warned that further gamesmanship to avoid compliance with the spirit of the Court's orders will not be tolerated and may subject Plaintiff to sanctions, to include monetary sanctions, sanctions striking all or part of his claims, or the like. See Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986) (holding that in exercising its power to control its own docket, the Court may impose sanctions).
From June 23, 2011 to August 1, 2011 Defendants Trevino and Garcia relayed false information to Defendant Isira to enlist Isira's aid in retaliating against Plaintiff for filing a staff complaint.
On July 26, 2011 and November 4, 2011, Isira authored CDCR-128C chronos alleging hostile misbehavior by Plaintiff. These statements were pretextual and in retaliation for Plaintiff's complaints of staff misconduct. The second of these was written after Plaintiff filed 602 administrative complaints against Isira. Isira then altered these chronos around December 4, 2012.
On November 15, 2011, Defendant Garcia authored a CDCR-128C chrono containing false allegations regarding Plaintiff's overfamiliarity in June 2011. Plaintiff previously had been found not guilty of these allegations. Plaintiff sent Garcia CDCR-22 form requests informing her that he had been found not guilty of the allegations. Garcia then falsely claimed that Plaintiff had sent her three requests asking her to remove documents from his file.
Plaintiff continued to file 602 administrative appeals regarding Defendants' conduct in 2011, 2012, 2013, and 2014, resulting in further unspecified retaliation.
Plaintiff appeared before a classification committee in November 2012 and February 2013. Therein, the decision was made to transfer Plaintiff to Mule Creek State Prison's Level III EOP for treatment (CSATF has a Level II SNY EOP) due to Garcia's false claims of safety issues with Plaintiff remaining at CSATF. Plaintiff was transferred to Mule Creek on March 29, 2013.
On May 31, 2012, Defendants Isira, Goss, Garcia, and Trevino relayed false information to A. Vickers, Psy. D., causing her to issue a false 128B chrono regarding Plaintiff's efforts to gather information regarding Defendants in relation to this litigation.
Defendants were served in this action on April 1, 2014.
On April 29, 2014, Plaintiff transferred back to CSATF and Facility G-1. On April 30, 2014, Plaintiff saw Defendant Goss but they did not speak. Later that day, a correctional officer asked Plaintiff whether he had litigation pending regarding anyone in Facility G-1, to which Plaintiff responded that he had litigation pending regarding Goss (apparently, the remaining Defendants no longer work in Facility G-1). Plaintiff informed the officer that he had filed 602s regarding his fears of retaliation prior to the transfer.
On April 30, 2014, Goss wrote a CDCR-128 chrono detailing her history of CDCR-115s and CDCR-128s regarding Plaintiff. In the April 30, 2014 CDCR-128, Goss falsely stated that the June 22, 2011 CDCR-115 had been reduced to a counseling chrono.
On May 1, 2014, Goss and Garcia exchanged emails reflecting their meeting of the minds to punish Plaintiff by reviving their earlier charges of misbehavior, overfamiliarity, stalking, and threats.
The Court docket reflects that, at some point thereafter, Plaintiff again was transferred to Mule Creek State Prison.
V. DISCUSSION
A. Legal Standard - First Amendment Retaliation
"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).
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 Sorrano's Gasco. Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). 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, 1288-89 (9th Cir. 2003) (finding that a prisoner establishes 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").
The third prong can be satisfied by various activities. Filing a grievance is a protected action under the First Amendment. Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989). Pursuing a civil rights legal action is similarly protected under the First Amendment. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985).
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 Cnty., 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).
With respect to the fifth prong, a prisoner must affirmatively show 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.
B. Analysis
The Court concluded that the claims in Plaintiff's second amended complaint were sufficient to state a cause of action because the statements by Defendants were alleged to have led to the removal of Plaintiff from the EOP housing unit and the termination of Plaintiff's participation in the EOP program. The removal of Plaintiff from EOP housing and programming constituted an adverse action sufficient to chill a person of ordinary firmness. Plaintiff now seeks leave to include additional allegations of retaliation by Defendants.
The Court concludes that the following allegations are insufficient to allege adverse action and therefore fail to state a claim: false chronos authored by Defendant Isira in 2011; false chrono by Defendant Garcia in November 2011; and false statements by Defendants Isira Trevino, Garcia and Goss to A. Vickers in May 2012. These statements were made after the decision to terminate Plaintiff's EOP housing and EOP level of care. They are not tied to any other adverse action. Plaintiff was not disciplined in relation to any of these statements. Although Plaintiff disagrees with the statements, they do not constitute adverse action in and of themselves. See, e.g., Jenkins v. Caplan, No. C 02-5603 RMW PR, 2010 WL 3742659, at *2 (N.D. Cal. Sept. 16, 2010) (granting summary judgment for defendant where plaintiff failed to present evidence that chrono constituted adverse action); Williams v. Woodford, 2009 WL 3823916, *3 (E.D. Cal. 2009) ("the alleged filing of the false administrative chrono fails to state a claim because it is not a sufficient adverse action for a retaliation claim because the chrono was merely informational"); Samano v. Copeland, 2008 WL 2168884, *2 (E.D. Cal.2008) (dismissing retaliation claim for failure to state a claim because issuing a counseling chrono did not constitute an adverse action). Leave to amend to add these allegations would be futile and should be denied.
Plaintiff's allegation that Defendant Isira altered chronos has been the subject of several discovery disputes in this action. (See ECF Nos. 84, 104.) Plaintiff consistently has failed to present a plausible factual basis for his belief that the chronos were altered. This allegation appears to be based purely on speculation and therefore is insufficient to state a claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (factual allegations must be sufficient to raise a right to relief above the speculative level). Pleading standards require Plaintiff to set forth "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). Facial plausibility demands more than the mere possibility that a defendant committed misconduct. Id. at 677-78. Additionally, even if alterations could be substantiated, Plaintiff fails to explain how any changes constitute an adverse action. Given Plaintiff's inability to substantiate this allegation through the discovery process or link it to an adverse action, leave to amend to add this allegation would be futile and should be denied.
Plaintiff appears to allege that a false chrono written by Defendant Goss in April 2014 was designed to force Plaintiff's removal from CSATF for a second time. Plaintiff was, in fact, removed from CSATF to Mule Creek State Prison at some point following the April 2014 chrono. However, Plaintiff's transfer to Mule Creek in 2014 cannot be construed as adverse action. Documents before the Court (ECF Nos. 93-1 at 94-96) reflect that Plaintiff objected to being transferred back to CSATF, and Plaintiff therein suggested that he should have been transferred to Mule Creek in the first instance. Given Plaintiff's apparent desire to be housed at Mule Creek over CSATF, his transfer from CSATF to Mule Creek does not constitute an adverse action that would chill a person of ordinary firmness. Leave to amend to add this claim would be futile and should be denied.
Plaintiff claims that emails between Goss and Garcia in 2014 reflect their intent to revive their earlier false statements regarding Plaintiff's behavior. The Court finds no such intent in the emails as described by Plaintiff. The discussion between Goss and Garcia, while perhaps unprofessional, does not reflect a meeting of the minds to deprive Plaintiff of his constitutional rights. It merely contains ongoing discussion regarding the instant litigation and chronos that already had been authored by the defendants. More importantly, Plaintiff does not suggest how such discussion constitutes an adverse action. Leave to amend to add this claim will be futile and should be denied.
This leaves only Plaintiff's allegation that Defendants Trevino and Garcia made false statements to Defendant Isira from June 23, 2011 to August 1, 2011 in order to enlist Isira's aid in terminating Plaintiff's EOP level of care in retaliation for his filing a staff complaint against Facility G-1 correctional officers involved in a use of force incident against Plaintiff. The nature of the false statements is not precisely described, although it appears to involve merely alerting Isira to Defendants' allegedly false chronos. Put another way, this appears to be a new iteration of the claims already presented in Plaintiff's second amended complaint. In this circumstance, disallowing the amendment does not prevent Plaintiff from testing his retaliation claim on the merits. Accordingly, the Court will recommend that leave to amend be denied.
VI. CONCLUSION
Based on the foregoing, the Court concludes that leave to amend would be futile. Accordingly, the Court HEREBY RECOMMENDS that Plaintiff's motions for leave to file an amended complaint (ECF No. 87) be denied.
The findings and recommendation will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen (14) days after being served with the findings and recommendation, the parties may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendation." A party may respond to another party's objections by filing a response within fourteen (14) days after being served with a copy of that party's objections. The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED.
Dated: January 27, 2016
/s/ Michael J . Seng
UNITED STATES MAGISTRATE JUDGE