(PC) Martinez v. Parks

[7] 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA [10] 11 RONALD F. MARTINEZ, Case No.: 1:21-cv-001496-KES-CDB 12 Plaintiff, SECOND SCREENING ORDER 13 v. 14 A. PARKS, 15 Defendant. [16] 17 Plaintiff Ronald F. Martinez is proceeding pro se and in forma pauperis in this civil rights 18 action pursuant to 42 U.S.C. section 1983 . 19 I. INTRODUCTION 20 The Court issued its first screening order on August 2, 2023. (Doc. 44.) It found Plaintiff’s 21 operative complaint stated cognizable First Amendment retaliation claims against Defendants 22 Parks and M. Lirones based upon his litigation efforts but failed to state cognizable retaliation 23 claims based upon Plaintiff’s legal assistance to other inmates. (Id. at 12-13.) Plaintiff was given 24 leave to file a fourth amended complaint, or to file written notice that he did not want to amend 25 and wished to stand on his complaint as screened, or to file a notice of voluntary dismissal. (Id. at 26 13-14.) 27 On August 24, 2024, Plaintiff filed a fourth amended complaint. (Doc. 47.) 1 II. SCREENING REQUIREMENT 2 The Court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 4 The Court must dismiss a complaint or portion thereof if the complaint is frivolous or malicious, 5 fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant 6 who is immune from such relief. 28 U.S.C. § 1915A(b). The Court should dismiss a complaint if 7 it lacks a cognizable legal theory or fails to allege sufficient facts to support a cognizable legal 8 theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 9 III. PLEADING REQUIREMENTS 10 A. Federal Rule of Civil Procedure 8(a) 11 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 12 exceptions.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002). A complaint must contain 13 “a short and plain statement of the claims showing that the pleader is entitled to relief.” Fed. R. 14 Civ. P. 8(a)(2). “Such a statement must simply give the defendant fair notice of what the 15 plaintiff’s claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512 (internal 16 quotation marks & citation omitted). 17 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 18 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 19 U.S. 662 , 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must 20 set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” [21] Id. (quoting Twombly, 550 U.S. at 570 ). Factual allegations are accepted as true, but legal 22 conclusions are not. Id. (citing Twombly, 550 U.S. at 555 ). 23 The Court construes pleadings of pro se prisoners liberally and affords them the benefit of 24 any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). However, “the 25 liberal pleading standard . . . applies only to a plaintiff’s factual allegations,” not his legal 26 theories. Neitzke v. Williams, 490 U.S. 319 , 330 n.9 (1989). Furthermore, “a liberal interpretation 27 of a civil rights complaint may not supply essential elements of the claim that were not initially 1 quotation marks & citation omitted), and courts “are not required to indulge unwarranted 2 inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation 3 marks & citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not 4 sufficient to state a cognizable claim, and “facts that are merely consistent with a defendant’s 5 liability” fall short. Iqbal, 556 U.S. at 678 (internal quotation marks & citation omitted). 6 B. Linkage and Causation 7 Section 1983 provides a cause of action for the violation of constitutional or other federal 8 rights by persons acting under color of state law. See 42 U.S.C. § 1983 . To state a claim under 9 section 1983, a plaintiff must show a causal connection or link between the actions of the 10 defendants and the deprivation alleged to have been suffered by the plaintiff. See Rizzo v. Goode, [11] 423 U.S. 362, 373-75 (1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the 12 deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative 13 act, participates in another’s affirmative acts, or omits to perform an act which he is legal required 14 to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740 , 15 743 (9th Cir. 1978) (citation omitted). 16 C. Supervisory Liability 17 Liability may not be imposed on supervisory personnel for the actions or omissions of 18 their subordinates under the theory of respondeat superior. Iqbal, 556 U.S. at 676-77; see e.g., 19 Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010) (plaintiff required to 20 adduce evidence the named supervisory defendants “themselves acted or failed to act 21 unconstitutionally, not merely that subordinate did”), overruled on other grounds by Castro v. 22 C’nty of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016); Jones v. Williams, 297 F.3d 930 , 934 23 (9th Cir. 2002) (“In order for a person acting under color of state law to be liable under section 24 1983 there must be a showing of personal participation in the alleged rights deprivation: there is 25 no respondeat superior liability under section 1983”). 26 Supervisors may be held liable only if they “participated in or directed the violations, or 27 knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040 , 1045 (9th 1 ‘series of acts by others which the actor knows or reasonably should know would cause others to 2 inflict’ constitutional harms.” Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009). Accord 3 Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011) (supervisory liability may be based on 4 inaction in the training and supervision of subordinates). 5 Supervisory liability may also exist without any personal participation if the official 6 implemented “a policy so deficient that the policy itself is a repudiation of the constitutional 7 rights and is the moving force of the constitutional violation.” Redman v. Cty. of San Diego, 942 8 F.2d 1435 , 1446 (9th Cir. 1991) (citations & quotations marks omitted), abrogated on other 9 grounds by Farmer v. Brennan, 511 U.S. 825 (1970). 10 To prove liability for an action or policy, the plaintiff “must ... demonstrate that his 11 deprivation resulted from an official policy or custom established by a ... policymaker possessed 12 with final authority to establish that policy.” Waggy v. Spokane County Washington, 594 F.3d 13 707, 713 (9th Cir.2010). When a defendant holds a supervisory position, the causal link between 14 such defendant and the claimed constitutional violation must be specifically alleged. See Fayle v. 15 Stapley, 607 F.2d 858, 862 (9th Cir. 1979). Vague and conclusory allegations concerning the 16 involvement of supervisory personnel in civil rights violations are not sufficient. See Ivey v. 17 Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 18 IV. DISCUSSION 19 A. Plaintiff’s Fourth Amended Complaint 20 Plaintiff names Library Trained Assistant (LTA) S. Parks and LTA Supervisor M. 21 Lirones, both employed at California State Prison, Corcoran (CSP-Cor), as Defendants. (Doc. 44 22 at 1, 5-6.) He seeks damages of $100,000, costs of suit and reasonable attorney fees,1 the 23 appointment of counsel,2 and any other relief the Court deems just and proper. (Id. at 24-25.) [24] 1 Plaintiff, who is proceeding pro se, is not entitled to attorney’s fees. Kay v. Ehrler, 499 U.S. 432 , 435 (1991). [25] 2 Plaintiffs do not have a constitutional right to appointed counsel in section 1983 actions. Rand v. Rowland, 113 F.3d 26 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 154 F.3d 952 , 954 n.1 (9th Cir. 1998). Nor can the Court require an attorney to represent a party under 28 U.S.C. section 1915 (e)(1). See Mallard v. U.S. Dist. Court, 490 U.S. 27 296, 304-05 (1989). Plaintiff is advised he may submit a separate motion seeking the appointment of counsel. If he elects to do so, he should set forth the reasons he believes he meets the extraordinary circumstances exception. Rand, 1 B. Plaintiff’s Factual Allegations 2 In or about July 2018, Plaintiff was transferred from Salinas Valley State Prison to CSP3 Cor. (Doc. 44 at 7.) Inmate Jackson, who resided in the same unit as Plaintiff and learned of 4 Plaintiff’s litigation experience, advised LTA Parks about Plaintiff. (Id.) As a result, LTA Parks 5 asked that Plaintiff be assigned as a new law library clerk. (Id.) Between August 2018 through 6 October 2019, Plaintiff noticed Parks “would get angry, visibly upset, and yell at Mr. Jackson for 7 assisting other inmates with [their] legal work and/or answering questions, all [loud] and in front 8 of everyone [attending] that law library session. (Id.) 9 Plaintiff alleges he and inmate Jackson often discussed Parks’ “disrespectful, illegal 10 conduct,” and Plaintiff expressed his surprise that Parks had not been the victim of an assault or 11 violent attack. (Doc. 44 at 8.) Plaintiff advised Jackson he hoped Parks “would not act in this 12 manner with him.” (Id.) During Jackson’s tenure, Parks did not yell at Plaintiff when Plaintiff 13 spoke with and assisted other inmates with their legal work or paperwork or navigating the Law 14 Library Electronic Delivery System (LLEDS). (Id.) Parks would get angry and yell at Jackson 15 only. (Id.) 16 In mid-2019, Plaintiff was placed on C-status and was removed from the law library clerk 17 position. (Doc. 44 at 8.) However, Plaintiff continued to access the law library as a general legal 18 user (GLU), an inmate without a court filing deadline, or as a priority legal user (PLU), denoting 19 an inmate with a court deadline. (Id.) While in the law library, Plaintiff assisted other inmates 20 with their legal work and answered legal questions. (Id.) During that same period, Plaintiff 21 informed Parks “about recent settlements reached with CDCR, the amount received, and 22 anticipated and new lawsuit filings.” (Id.) 23 In September 2020, while Plaintiff was attending a law library session, Parks advised 24 Plaintiff a clerk position had recently been filled by another inmate in his unit, and asked Plaintiff 25 whether he knew the inmate and whether the inmate knew anything about the law. (Doc. 44 at 8.) 26 Plaintiff next states: “Long story short: He did not know anything about the law and this inmate 27 and I would exchange work assignments (he to my porter job, me to his clerk position) which 1 Facility C law library. (Id.) 2 Plaintiff contends Parks asked Plaintiff to train inmate E. Laundry. (Doc. 44 at 8.) 3 Laundry was a recent hire “learning the ‘law’ on the job training style.” (Id.) Plaintiff trained 4 Laundry on clerking duties and answered Laundry’s requests for assistance. (Id. at 8-9.) 5 On April 5, 2021, while Plaintiff waited for the gate to open in the recreation yard so he 6 could go to work, an inmate asked Plaintiff to assist him in getting into the law library “and 7 explained his situation.” (Doc. 44 at 9.) Once at work, Plaintiff informed Parks about the inmate 8 in the yard needing library access to copy and file a petition for writ of habeas corpus. (Id.) 9 Plaintiff advised Parks he had the inmate’s name and asked whether Parks could “get him in any 10 time soon.” (Id.) Plaintiff contends Parks yelled, “How do you know this?” (Id.) Plaintiff stated to 11 Parks that he was asked by the other inmate. (Id.) Parks responded by asking Plaintiff, “What are 12 you doing talking to another inmate?” (Id.) Plaintiff replied, “What? Now I am not supposed to 13 talk to [inmates]?” (Id.) Parks advised Plaintiff that the inmate needs to submit a request for 14 access form and Plaintiff responded by advising Parks the inmate told Plaintiff “he submitted 4–5 15 of them already but never received a response.” (Id.) This angered Parks, who was “way behind 16 responding” to such requests because she spends hours each day gossiping with other staff. (Id.) 17 Parks “got real red in the face and started yelling and pounding/slapping her desk all in front of 18 numerous inmates.” (Id.) Specifically, Parks yelled something like “You [can’t] just help anybody 19 with [their] legal work! They need to do it themselves.” (Id.) Plaintiff was embarrassed, belittled 20 and disrespected, “as if he was doing something wrong or illegal activity.” (Id.) Plaintiff replied, 21 “What do you expect me to do? Just ignore them when they ask me a question about the law 22 library or access… [it is] my Job and I want to do it and going to do it.” (Id.) Next, Plaintiff states 23 had he “been the same dummy he was 20-years ago he would have [assaulted], attacked, battered, 24 defendant Parks for the disrespect and yelling at him like he was some kind of punk bitch or 25 something.” (Id.) 26 On April 8, 2021, Plaintiff spoke with Parks, telling Parks “her yelling was not justified,” 27 that he was only doing his job, and that even without the position he wants to help other inmates. 1 done something wrong to speak with him about it. (Id.) Plaintiff states Parks reluctantly agreed. 2 (Id.) 3 On April 12, 2021, during the morning session in the law library, Plaintiff was assisting an 4 inmate with an emergency state habeas corpus petition. (Doc. 47 at 10.) The inmate planned to 5 use a fill-in-the-blanks petition, but Plaintiff encouraged him to make it “more presentable” 6 because he would only get one opportunity to present his argument for compassionate release. 7 (Id.) Shortly after, Parks asked the inmate whether he was going to “copy his version of the 8 petition or not.” (Id.) If he was not planning to do so, Parks stated the inmate had to leave. (Id.) 9 Plaintiff advised Parks that he had been assisting the inmate, but Parks yelled at Plaintiff that he 10 could not help an inmate do their legal work. (Id.) Plaintiff stated, “I am only doing my job, what 11 are you talking about?” (Id.) Plaintiff contends Parks kicked the inmate out of the law library. 12 (Id.) Plaintiff told the inmate he would assist him later after work. (Id.) 13 Plaintiff asserts that the Facility C law library is not complying with Bounds v. Smith, 430 14 U.S. 817 (1977), requiring prison law libraries to provide sufficient assistance from persons 15 trained the law. (Doc. 47 at 10.) Without Plaintiff as a clerk, there is no one to assist other 16 inmates. (Id.) Plaintiff states Defendant Parks does not know how “to prepare a traverse, oppose 17 defendants MSJ, prepare discovery, and/or other legal documents to further legal claims for 18 relief.” (Id. at 11.) Plaintiff alleges Parks’ “ignorance, stupidity, and retaliatory acts of yelling at 19 Plaintiff” when he assists others “is tantamount to [getting] angry and irate at a fireman for 20 assisting to [put] out a house fire, or a police officer enforcing the law.” (Id.) 21 During the afternoon session on April 12, 2021, Plaintiff was helping an inmate who had 22 difficulty reading and understanding legal forms. (Doc. 47 at 11.) Plaintiff read the instructions 23 and filled out the forms for the inmate based upon information provided by the inmate. (Id.) 24 Plaintiff did not sign the inmate’s name or enter the date on any form. (Id.) When the inmate 25 provided the forms to Parks for copying, Parks recognized Plaintiff’s handwriting. (Id.) She got 26 angry and yelled, “You can not be helping the inmate with [their] legal work,” telling Plaintiff he 27 was helping them too much. (Id.) Plaintiff told Parks she was “‘really tripping,’” that she yelled at 1 control of his anger and assault Parks for her blatant disrespect of him. (Id.) Plaintiff told Parks 2 that she “might as well fire him now” because he was going to continue to help other inmates 3 with legal work and answer questions when asked. (Id.) Parks ordered Plaintiff to leave and 4 thereafter did not call Plaintiff in for work. (Id.) Plaintiff asserts fellow clerk Laundry witnessed 5 his exchange with Parks. (Id. at 12.) 6 Plaintiff alleges Parks retaliated against him by yelling at him for assisting other inmates 7 with their legal work, by firing him as a law library clerk, and by drafting a false Rules Violation 8 Report (RVR) to conceal her own illegal conduct because Plaintiff was engaging in free speech 9 while assisting other inmates. (Doc. 47 at 12.) Plaintiff filed numerous grievances regarding 10 access to the law library and lawsuits, including Martinez v. Baughman, et al., in this Court’s case 11 number 1:19-cv-01459-DAD-JLT, “all conducted in and out of work as a law library clerk,” for 12 engaging in protected conduct. (Id.) Plaintiff argues Parks violated his right to free speech and 13 association by yelling at him for talking to other inmates and assisting them with questions and 14 legal work. (Id.) Further, Plaintiff alleges “under the doctrine of ‘Unconstitutional Conditions,’” 15 Parks fired him “because of previous filed grievances against defendant Lirones,” assisting other 16 inmates with filing grievances and lawsuits against CDCR, and due to Plaintiff’s previous 17 lawsuits and settlements involving CDCR. (Id.) Plaintiff alleges Parks placed “excessive burdens” 18 on his free speech rights “by yelling, getting mad, angry, at Plaintiff for talking with other 19 prisoners about filing/drafting certain motion(s) Plaintiff did not yet know about the format and/or 20 grievances regarding the race-based modified program Plaintiff and all STG-SURENOS were 21 subject to by interfering with his library clerk job by the alleged retaliatory firing above.” (Id.) 22 Plaintiff contends that in an attempt to conceal the “retaliatory firing,” Parks fabricated a 23 work supervisor’s report on April 12, 2021, alleging Plaintiff was angry because he could not 24 conduct his own legal work, that Plaintiff refused to assist or train inmate Laundry, and that 25 Plaintiff was not receptive to counseling. (Doc. 47 at 13.) On April 29, 2021, Parks fabricated a 26 work supervisor’s report by indicating Plaintiff refused to sign the report, but Plaintiff was never 27 provided the opportunity. (Id.) 1 inmate with an inmate-manufactured weapon. Because of a head injury, Plaintiff was transported 2 to an off-site hospital treatment. (Doc. 47 at 13.) On May 24, 2021, Plaintiff was “assigned the 3 infirmary AD-SEG status.” (Id.) Without physical access to the law library, CDCR policy allows 4 inmates to utilize a paging system to request case law, statutes and other materials contained in 5 LLEDS. (Id.) According to Plaintiff, librarians are mandated to provide the paging material 6 within 16 days of the request. (Id.) Between June 9 and June 19, 2021, Plaintiff sent Parks two 7 paging requests and a request to file an application for in forma pauperis (IFP) status. (Id. at 14.) 8 On June 20, 2021, Library Supervisor M. Lirones went to the infirmary to bring Plaintiff 9 his IFP application and trust account statement. (Doc. 47 at 14.) When Plaintiff asked about the 10 paging requests, Lirones advised Plaintiff “they were ‘working on it.’” (Id.) Plaintiff indicated to 11 Lirones that he was going to file suit against Parks for firing him without just cause. (Id.) Lirones 12 told Plaintiff to submit a request for interview form, a GA-22, and she would come back to pick it 13 up. (Id.) 14 On or around June 30, 2021, Plaintiff learned that infirmary patients had access to 15 LLEDS. (Doc. 47 at 14.) He also learned he needed a ducat for access. (Id.) Plaintiff submitted a 16 GA-22 to Lirones requesting “her to [schedule Plaintiff] time and ducat for the LLEDS in” that 17 unit. (Id.) Lirones advised Plaintiff he did not need a ducat and only needed to ask infirmary staff 18 for access. (Id.) But when Plaintiff asked infirmary staff, a sergeant stated a ducat was required. 19 (Id.) Plaintiff states Lirones “refused and failed to let Plaintiff know” he had LLEDS access when 20 she met with him. (Id.) Plaintiff alleges that was an act of retaliation for his having submitted 21 previous paging requests that were denied, noting LLEDS access was available to Plaintiff and 22 that Lirones refused to issue a ducat. (Id. at 15.) Plaintiff contends he never gained access to 23 LLEDS nor received any paging materials while in the infirmary between May 24 and July 21, 24 2021. (Id.) 25 On July 21, 2021, Plaintiff was transferred from the infirmary to Facility 4A Ad-Seg. 26 (Doc. 47 at 15.) From July 23, 2021, through August 24, 2022, Plaintiff submitted numerous 27 requests to access the law library as a GLU and submitted paging requests to make copies and 1 2021, request, ignoring his requests from July 30 and August 17, 2021, conduct Plaintiff alleges 2 is retaliatory. (Id.) Between August and October 2021, Plaintiff submitted numerous requests, 3 including a request to copy the complaint in this action and a state habeas petition in a Kings 4 County Superior Court case regarding Ad-Seg living conditions. (Id.) Plaintiff contends CSP-Cor 5 allows GLU inmates “one-time access to the law library just to make legal copies and mail out 6 from there.” (Id.) 7 On August 15, 2021, Parks issued Plaintiff an August 2021 memorandum indicating no 8 inmates would be allowed access to the law library without a verified court filing deadline, and 9 that GLU inmates had no access. (Doc. 47 at 16.) Inmates needing copy services were to send 10 their documents to the law library via institutional mail “with all trust withdrawal, forms, copy 11 forms, envelope request forms, all filled-out, with the address(es) for mailing.” (Id.) Parks was 12 then to return all original documents. (Id.) The prohibition of GLU access was due to purported 13 staff shortages and COVID-19 safety protocols. (Id.) Plaintiff alleges this was instead an act of 14 retaliation because Parks could have easily permitted him access when only one or two PLU 15 inmates accessed the law library “contrary to” the safety protocols and purported staff shortages. 16 (Id.) Plaintiff asserts that when he was finally approved for PLU status in January 2022, he was 17 the only inmate present and “10-12 empty cages/cells for GLU could have used/occupied (5-6 18 percent COVID protocols).” (Id.) Between January 2022 and September 2022, as a PLU user, 19 Plaintiff noted about “2-3 sessions wherein there was more than 4 PLU inmates accessing the law 20 library at one time.” All other sessions involved only “2-3 PLU’s.” (Id.) 21 Plaintiff states there was “NO WAY” he was going to send his legal documents, including 22 two lawsuits against prison staff, to Parks. (Doc. 47 at 16.) One of those suits named Parks. (Id.) 23 Plaintiff asserts grievances that “get ‘lost’, ‘misplaced’, or the dog ate it through the prison mail 24 system.” (Id.) Because Lirones and Parks prohibited Plaintiff’s access to make copies of his own 25 complaints, “Plaintiff was forced to request” that this Court assist him in this case and another. 26 (Id.) 27 On October 14, 2021, Plaintiff submitted a PLU request and declaration form seeking 1 at 16.) Thirteen days later, Lirones allowed Plaintiff one-time access just to permit copying and 2 mailing out of the IFP motion and supporting documents. (Id. at 17.) Lirones’ refusal to allow 303 days of access was an act of retaliation “because of the IFP motion was against her friend and co4 worker defendant LTA Parks in this action.” (Id.) Further, Plaintiff alleges neither Lirones nor 5 Parks honored that one-time access, another act of retaliation. (Id.) 6 In August through September 2, 2021, Plaintiff submitted four or five GA-22 forms to 7 Defendants requesting that they go to Plaintiff’s cell to retrieve his paperwork, make copies, and 8 return the documents to him. (Doc. 47 at 17.) Plaintiff explained in the forms that “he had grave 9 concerns of his legal work disappearing in the institutional mail system.” (Id.) Defendants 10 “refused and failed to respond” to the requests. Plaintiff alleges this too was retaliation. (Id.) 11 When Plaintiff realized Lirones was also retaliating against him, he “redrafted the complaint to 12 include Lirones as a defendant.” (Id.) 13 On November 3, 2021, Plaintiff submitted a request for PLU access to the law library for 14 30 days to work on discovery “in the GAMBOA action.” (Doc. 47 at 18.) Lirones denied the 15 request on November 5, 2021, citing Rule 30(a)(3) and indicating the rule did not establish a 16 deadline. (Id.) She claimed Plaintiff was exempt from “initial disclosures under FRCP 17 26(a)(1)(B)(iv)” and only recognized the defendants’ December 31, 2021, deadline to file a 18 dispositive motion. (Id.) Plaintiff contends Lirones is savvy and used the Federal Rules of Civil 19 Procedure and Local Rules to prevent him from receiving the requested PLU access. (Id.) 20 On November 14, 2021, Plaintiff submitted a request for PLU access to the law library for 21 30 days to work on an IFP motion in the Rodriguez action involving a 45-day deadline. (Doc. 47 22 at 18.) On November 29, 2021, Lirones responded and indicated two trust account statements had 23 been returned to the Trust Account Office because Plaintiff failed to mail them within 30 days. 24 (Id. at 18-19.) Plaintiff was instructed to ask the court for new IFP forms. (Id.) Plaintiff contends 25 that had Lirones and Parks honored the one-time access he sought back on October 27, 2021, and 26 not retaliated against him, he would have filed the IFP motions and habeas petitions. (Id. at 19.) 27 In January and February 2022, Plaintiff was granted PLU status for filing in another case 1 PLU session, Parks “made an issue about not wanting to copy the amended complaint because of 2 it containing 3 ‘cut-n-pasted’ pages that needed to be copied on the copy machines glass, one at a 3 time.” (Id.) Plaintiff told Parks he had done similar copying while he was her clerk. (Id.) Plaintiff 4 asked Parks to copy his 109-page handwritten complaint; she apparently indicated it was not a 5 problem. (Id.) However, when Parks learned the complaint involved allegations concerning she 6 and Lirones, Parks advised Plaintiff she could not copy the document because it was too lengthy. 7 (Id.) Plaintiff states he “called-out” Parks for “her obvious instant change of mind” and 8 referenced his prior GA-22 requests seeking access to make copies. (Id.) Parks stated she never 9 read the requests. (Id.) Plaintiff asserts Parks denied them. (Id.) 10 Next, Plaintiff alleges Parks would not show up on Plaintiff’s designated law library days 11 and refused to make up the missed sessions on various occasions. (Doc. 47 at 20.) In March 12 2022, Parks failed to forward a court order and PLU request to Lirones. (Id.) Also in March 2022, 13 Plaintiff submitted several PLU request forms, but Lirones denied each of the requests or directed 14 that he resubmit them only to deny the request later. (Id. at 20-23.) Plaintiff asserts these were 15 acts of retaliation by Defendants. (Id.) 16 Plaintiff alleges Defendants retaliated against him because he engaged in protected 17 conduct: filing the lawsuit against Defendant Parks, submitting numerous access requests and 18 grievances regarding access to the law library, and “trying to comply and file the original 19 Complaint in October 2021, and the RODRIGUES lawsuits.” (Doc. 47 at 23.) He further alleges 20 their adverse actions chilled the exercise of his First Amendment rights and did not advance any 21 legitimate penological interests or goals. (Id.) 22 C. Plaintiff’s Claims 23 The Court construes Plaintiff’s fourth amended complaint to assert First Amendment 24 retaliation claims against Defendants Lirones and Parks based upon their conduct related to his 25 grievances and lawsuits, and against Defendant Parks for her conduct related to his law library 26 clerk position. [27] 1 Applicable Legal Standards 2 Allegations of retaliation against a prisoner’s First Amendment rights to speech or to 3 petition the government may support a section 1983 claim. Rizzo v. Dawson, 778 F.2d 527 , 532 4 (9th Cir. 1985); see Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. 5 Rowland, 65 F.3d 802, 807 (9th Cir. 1995). “Within the prison context, a viable claim of First 6 Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some 7 adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that 8 such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did 9 not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559 , 56710 68 (9th Cir. 2005); accord Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012); Brodheim 11 v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). 12 Adverse action taken against a prisoner “need not be an independent constitutional 13 violation. The mere threat of harm can be an adverse action.” Watison, 668 F.3d at 1114 (internal 14 citations omitted). A causal connection between the adverse action and the protected conduct can 15 be alleged by an allegation of a chronology of events from which retaliation can be inferred. Id. 16 The filing of grievances and the pursuit of civil rights litigation against prison officials are both 17 protected activities. Rhodes, 408 F.3d at 567-68 . The plaintiff must allege either a chilling effect 18 on future First Amendment activities, or that he suffered some other harm that is “more than 19 minimal.” Watison, 668 F.3d at 1114 . A plaintiff successfully pleads that the action did not 20 reasonably advance a legitimate correctional goal by alleging, in addition to a retaliatory motive, 21 that the defendant's actions were “arbitrary and capricious” or that they were “unnecessary to the 22 maintenance of order in the institution.” Id. 23 Analysis 24 Liberally construing the fourth amended complaint, and as found in this Court’s first 25 screening order (see Doc. 44 at 10-12), Plaintiff plausibly alleges cognizable First Amendment 26 retaliation claims against Defendants Lirones and Parks based upon their conduct related to his 27 grievances and lawsuits. 1 Next, liberally construing the fourth amended complaint and affording Plaintiff every 2 doubt, Plaintiff plausibly alleges a First Amendment retaliation claim against Parks for Parks’ 3 comments, behavior, and actions concerning Plaintiff’s position as a law library clerk. Plaintiff 4 plausibly alleges that Parks took adverse action against him in the form of a retaliatory firing 5 because he assisted other inmates with their legal work while performing his job as a law library 6 clerk, chilling Plaintiff’s exercise of his First Amendment freedom of speech and association 7 rights in the absence of a legitimate correctional goal. Rhodes, 408 F.3d at 567-68 ; Vignolo v. 8 Miller, 120 F.3d 1075, 1077-78 (9th Cir. 1997) (reversing dismissal of First Amendment 9 retaliation claim “on the bare ground that there is no constitutional right to prison employment” 10 because “even though a person has no ‘right’ to a valuable governmental benefit and even though 11 the government may not deny him the benefit for any number of reasons, there are some reasons 12 upon which the government may not rely. It may not deny a benefit to a person on a basis that 13 infringes his constitutionally protected interests—especially, his interest in freedom speech”); see 14 Yescas v. McCourt, No. 3:23-cv-00106-TWR-AHG, 2024 WL 3614672 , at *8, 13 (S.D. Cal. July 15 30, 2024) (discussing protected conduct element of retaliation claim and citing cases holding 16 verbal complaints about prison staff are protected conduct; “Plaintiff’s allegation that he was not 17 allowed to work and ultimately terminated from his plumber job in retaliation for making oral 18 complaints about and filing a written grievance against Howard and Johnson suffices to meet the 19 ‘adverse action’ element needed to state a First Amendment retaliation claim,” citing Vignolo). 20 In sum, the Court finds Plaintiff’s fourth amended complaint states plausible First 21 Amendment retaliation claims against Defendants Lirones and Parks. 22 III. CONCLUSION AND ORDER 23 For the foregoing reasons, this Court ORDERS as follows: 24 1. The Clerk of the Court will ADD M. Lirones as a defendant to the docket for this 25 action; and 26 // 27 // 1 2. The Court will issue a separate order concerning service in due course. 2 | ITIS SO ORDERED. Dated: _ December 18, 2024 | Ww 4 UNITED STATES MAGISTRATE JUDGE