(PC) Reed v. Peery

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 ANTHONY J. REED, No. 2:20-cv-2373 WBS AC P 12 Plaintiff, 13 v. ORDER 14 R. PEERY, et al., 15 Defendants. [16] 17 Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed this civil 18 rights action seeking relief under 42 U.S.C. § 1983 and the Americans with Disabilities Act. The 19 matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636 (b)(1)(B) and 20 Local Rule 302. 21 Before the court is plaintiff’s first amended complaint (“FAC”). ECF No. 13. For the 22 reasons stated below, plaintiff will be given a final opportunity either to amend the complaint or 23 to proceed on the single cognizable claim identified below. 24 I. FIRST AMENDED COMPLAINT 25 Plaintiff, an inmate who is currently housed at Salinas Valley State Prison (“SVSP”), 26 seeks relief for events that took place when he was incarcerated at Mule Creek State Prison 27 (“MCSP”). ECF No. 13 at 1-2. He names the following individuals as defendants: K. Allison, 28 Secretary of the California Department of Corrections and Rehabilitation (“CDCR”); Associate 1 Warden R. Peery; Correctional Captain D. Clain; Correctional Lieutenant M. Hudson; 2 Correctional Sergeant J. Hartgrove; Correctional Officer C. Guillen; Correctional Officer J. 3 Nakken and Does 1-10. Id. at 1, 3-5 . 4 The complaint alleges in sum as follows. Plaintiff is a disabled person who experiences 5 incontinence and therefore requires frequent access to an ADA shower. ECF No. 13 at 6. In 6 early 2019 Officer Guillen repeatedly refused to let plaintiff use the ADA shower. Plaintiff filed 7 an inmate appeal, which he dropped after being assured by supervisory officials that the issue 8 would be addressed. Guillen continued to deny plaintiff ADA shower access, and plaintiff again 9 submitted an appeal. During an interview regarding this appeal, plaintiff agreed to withdraw it 10 and submit a request for reasonable accommodation instead. He filed a CDCR Form 1824 11 challenging the failure to provide necessary shower access and complaining of retaliation. Id. at 12 6-7. 13 On April 2, 2019, Defendant Nakken demanded to know why plaintiff was complaining 14 about Officer Guillen, then immediately went and searched plaintiff’s cell and confiscated his 15 personal property. Nakken wrote a false disciplinary report (RVR) charging plaintiff with 16 destruction of personal property. Plaintiff reported to defendant Hartgrove that Nakken had 17 issued a retaliatory and false RVR. Hartgrove said that he would discuss the matter with Lt. 18 Hudson, and Hudson later told plaintiff that it would be “taken care of.” Id. at 7-8 . 19 The FAC presents two putative causes of action.1 The first claims that defendants 20 retaliated against plaintiff for filing inmate appeals against Officer Guillen and a CDCR 1824 21 reasonable accommodation request form. ECF No. 13 at 9-10. The second claims that 22 defendants deprived plaintiff of access to an ADA-compliant shower “without any legitimate 23 penological interest or actual cause to prevent such requested access” and did so “because of 24 retaliation with deliberate indifference to Plaintiff’s needs and with evil intent.” Id. at 10 . 25 Because the FAC opens with the assertion that plaintiff seeks redress for violation of his rights [26] 1 Plaintiff has dropped his putative due process claim based on the allegedly false RVR and 27 ensuing disciplinary process. He had been informed on screening of the initial complaint that his allegations about the RVR and disciplinary process did not support a claim for relief on due 28 process grounds. See ECF No. 6 at 5-6. 1 under the First Amendment and under the Americans with Disabilities Act, id. at 1 , the court 2 construes the FAC’s first cause of action as a First Amendment retaliation claim under § 1983 3 and the second as a claim under Title II of the ADA. See ECF No. 1 at 18 (initial complaint 4 expressly presenting ADA claim), ECF No. 6 at 6-7 (screening order explaining requirements for 5 claim under Title II of the ADA). 6 II. DISCUSSION 7 A. Claim for Which a Response Will Be Required 8 Claim One alleges that defendants Guillen, Nakken, Hartgrove, Hudson, Clain, Peery, and 9 Does 1-50 retaliated against plaintiff for exercising his First Amendment right to file grievances. 10 ECF No. 1 at 17. To state a viable claim of First Amendment retaliation, a prison inmate must 11 plead facts showing that (1) a state actor took some adverse action against the inmate (2) because 12 of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of 13 his First Amendment rights, and (5) the action did not reasonably advance a legitimate 14 correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (fn. and citations 15 omitted). Allegation of a concrete harm from the retaliatory conduct will satisfy the “chilling” 16 requirement. Id. at 568, n.11 . 17 Plaintiff’s allegations against Officer Nakken state a claim under these standards. Nakken 18 is alleged to have taken adverse action (confiscation of property and false disciplinary charges) 19 because of plaintiff’s complaints against Officer Guillen. Nakken’s alleged statements 20 immediately before conducting the search and writing the RVR are sufficient to support 21 retaliatory motive. Liberally construed, the allegations are adequate to demonstrate the absence 22 of a legitimate correctional goal and the suffering of an injury or chilling effect. Officer Nakken 23 will be required to respond to Claim One. 24 B. Failure to State a Claim 25 1. Claim One: Retaliation by Other Defendants 26 The FAC does not include facts showing that any defendant other than Officer Nakken 27 was motivated by retaliatory intent. Conclusory allegations are insufficient, Pena v. Gardner, 976 28 F.2d 469, 471 (9th Cir. 1992), and the mere fact that other defendants knew about plaintiff’s 1 complaints does not support an inference that whatever they did or failed to do regarding 2 plaintiff’s shower access or disciplinary proceeding was done in order to punish him for 3 complaining. As plaintiff has previously been informed, see ECF No. 6, a First Amendment 4 retaliation claim requires facts as to each defendant individually that show a retaliatory 5 motivation for the adverse actions taken by that person. Plaintiff will be given a final opportunity 6 to amend in order add such facts, if they exist. 7 Plaintiff is reminded that supervisors are not liable under § 1983 for the actions of their 8 subordinates. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Generally speaking, every 9 government official is only liable for his or her own misconduct. Ashcroft v. Iqbal, 556 U.S. 662 , 10 677 (2009). “A supervisor is only liable for constitutional violations of his subordinates if the 11 supervisor participated in or directed the violations and failed to act to prevent them.” Taylor, [12] 880 F.2d at 1045 . Accordingly, plaintiff should only name supervisors as defendants on his 13 retaliation claim if they personally participated in retaliatory acts (including by failing to prevent 14 further retaliation that they were aware of), with their own retaliatory intent. 15 2. Claim Two: Americans with Disabilities Act 16 The FAC’s second cause of action does not specify its legal basis, see ECF No. 13 at 10, 17 but the court interprets it as a claim under Title II of the ADA for the reasons stated above.2 18 Plaintiff’s intent to state an ADA claim is plain from the first page of the FAC. ECF No. 13 at 1. 19 Plaintiff was previously informed that the proper defendant for a Title II claim is the public entity 20 responsible for the discrimination, and that plaintiff therefore should state any ADA claim only 21 against the appropriate official in his or her official capacity. ECF No. 6 at 7. The FAC specifies 22 that defendants CDCR and K. Allison, the Secretary of CDCR, are sued in their official capacities 23 only. ECF No. 13 at 6. The court accordingly construes this claim as being brought against 24 CDCR, the entity, and its present Secretary in that person’s official capacity.3 This appears for 25 screening purposes to be appropriate. 26 //// [27] 2 If this was not plaintiff’s intent, he should clarify on amendment. 28 3 If plaintiff intended something different, he should clarify this on amendment. 1 However, as plaintiff was previously informed, a viable claim requires the pleading of 2 facts showing that prison officials intentionally discriminated or were deliberately indifferent to 3 plaintiff’s accommodation needs and his rights as a disabled inmate. Id. “Deliberate indifference 4 requires both knowledge that a harm to a federally protected right is substantially likely, and a 5 failure to act upon that likelihood.” Duvall v. County of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 6 2001). Plaintiff’s conclusory allegations that defendants collectively denied his requests for 7 accommodation without justification, and with deliberate indifference and evil intent, are 8 insufficient to state a claim. See Ivey v. Board of Regents of the University of Alaska, 673 F.2d 9 266, 268 (9th Cir. 1982) (vague or conclusory allegations will not support a cause of action). To 10 under the ADA, plaintiff must present facts demonstrating that the individuals who denied and/or 11 failed to ensure his increased access to the ADA shower knew that a harm to plaintiff’s federally 12 protected right was substantially likely to result. The allegations of the FAC do no more than 13 establish the knowledge of various defendants that plaintiff wanted more frequent access to the 14 ADA shower. Despite the court’s previous instructions, the FAC does not provide any detail 15 about the specific shower access plaintiff required, the shower or other bathing access he was 16 provided during the relevant period, or facts showing that any defendant acted with deliberate 17 indifference or intent to discriminate. 18 Plaintiff will be provided a final opportunity to amend. 19 III. OPTIONAL LEAVE TO AMEND 20 As stated above, the only cognizable claim in the FAC is a First Amendment retaliation 21 claim against defendant Nakken. Plaintiff may either proceed with that claim, or he may choose 22 to amend the complaint a final time. He will be required to inform the court of his decision by 23 filling out the attached notice on how to proceed form. He will be given fourteen days to do so. 24 If plaintiff chooses to file an amended complaint, he must demonstrate how the conditions 25 about which he complains resulted in a deprivation of his constitutional rights. See generally 26 Rizzo v. Goode, 423 U.S. 362, 370-71 (1976). Also, the complaint must allege in specific terms 27 how each named defendant is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350 , 1355 28 (9th Cir. 1981). There can be no liability under 42 U.S.C. 1983 unless there is some affirmative 1 link or connection between a defendant’s actions and the claimed deprivation. Id. 2 Plaintiff is also informed that the court cannot refer to a prior pleading in order to make 3 his first amended complaint complete. Local Rule 220 requires that an amended complaint be 4 complete in itself without reference to any prior pleading. This is because, as a general rule, an 5 amended complaint supersedes the original complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 6 1967) (citations omitted), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th 7 Cir. 2012) (claims dismissed with prejudice and without leave to amend do not have to be re-pled 8 in subsequent amended complaint to preserve appeal). Once plaintiff files a second amended 9 complaint, the original complaint no longer serves any function in the case. Therefore, in an 10 amended complaint, as in an original complaint, each claim and the involvement of each 11 defendant must be sufficiently alleged. 12 IV. PLAIN LANGUAGE SUMMARY OF THIS ORDER FOR A PRO SE LITIGANT 13 Like your original complaint, the FAC states a First Amendment retaliation claim against 14 Officer Nakken. It does not include facts that state any other claim against any other defendant. 15 You may choose to proceed on Claim One against Officer Nakken only, or you may choose to 16 amend one last time. If you amend, your retaliation claim needs to include facts showing that 17 other defendants took actions against you because of your inmate appeals and accommodation 18 request. 19 If you amend, you should also clarify that your second cause of action is an ADA claim 20 brought against CDCR and the Secretary. It must include facts showing that the people who 21 denied your shower accommodations did so with an intent to discriminate based on your 22 disability or deliberate indifference to your rights as a disabled person. This includes details 23 about your needs related to the shower, the other hygiene options available to you, and the things 24 that defendants said or did showing that they knew your rights were being violated and did not 25 care. 26 You have fourteen days to let the court know whether you would like to amend the 27 complaint or proceed only on the First Amendment retaliation claim against defendant Nakken. 28 If you do not return the attached notice within the time allotted, the court will recommend that all 1 || other claims and defendants be dismissed. 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. The court has screened the First Amended Complaint and finds that it states a claim 4 | for relief against J. Nakken for retaliation in violation of plaintiffs First Amendment rights, and 5 || does not state any other claim against any defendant. 6 2. Plaintiff has the options of either (1) proceeding immediately on his First Amendment 7 || retaliation claim (Claim One) against defendant J. Nakken only, or (2) amending the complaint. 8 3. Within fourteen days of service of this order, plaintiff shall complete and return the 9 || attached form notifying the court whether he wants to proceed on the complaint as screened or 10 | file a first amended complaint. If plaintiff does not return the form, the court will assume that he 11 || 1s choosing to proceed on the complaint as screened and will recommend dismissal without 12 || prejudice of Claim Two, as well as of all defendants other than J. Nakken. 13 || DATED: May 16, 2022 ~ Cttt0 Lhar—e_ ALLISONCLAIRE. 15 UNITED STATES MAGISTRATE JUDGE [7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 ANTHONY J. REED, No. 2:20-cv-2373 WBS AC P 12 Plaintiff, 13 v. PLAINTIFF’S NOTICE ON HOW TO PROCEED 14 R. PEERY, et al., 15 Defendants. [16] CHECK ONE: [17] Plaintiff would like to proceed immediately on his First Amendment retaliation claim [18] against defendant J. Nakken. Plaintiff understands that by choosing to go forward without [19] amending the complaint, he is voluntarily dismissing defendants D. Clain, M. Hudson, J. [20] Hartgrove, C. Guillen, K. Allison and the CDCR from this action pursuant to Federal Rule of [21] Civil Procedure 41(a)(1)(A)(i). [22] Plaintiff would like to amend the complaint. [23] 24 DATED: _______________________________ 25 ANTHONY J. REED Plaintiff Pro Se