Hill v. Tyler

1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA [3] 4 CYMEYON V. HILL, Case No. 20-cv-03156-YGR (PR) Plaintiff, 5 ORDER OF DISMISSAL WITH LEAVE v. TO AMEND; AND DENYING [6] PLAINTIFF’S REQUEST FOR FEE 7 M. B. ATCHLEY, WAIVER Defendant. [9] I. INTRODUCTION [10] Plaintiff, a civil detainee who is currently in custody at Salinas Valley State Prison [11] (“SVSP”), filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983 . Thereafter, Plaintiff [12] filed an amended complaint, which is the operative complaint in this action. Dkt. 9. Plaintiff has [13] also filed a motion for leave to proceed in forma pauperis, which will be granted in a separate [14] written Order. Dkt. 6. Lastly, Plaintiff has filed a document entitled, “Mo[tion] to Adhere and to [15] Investigate Plaintiff[’]s History and Case File With the U.S. District Court [for the] Eastern [16] District,” in which Plaintiff requests the Court to contact the SVSP “Prison Trust Office to stop all [17] illegal fi[]nancial transaction[s] dealing with [the instant action].” Dkt. 8. The Court construes [18] his motion as a request for a fee waiver. See id. [19] Venue is proper because the events giving rise to the claim is alleged to have occurred as [20] SVSP, which is located in this judicial district. See 28 U.S.C. § 1391 (b). Plaintiff seeks punitive [21] damages. Dkt. 9 at 2.1 [22] II. DISCUSSION [23] A. Standard of Review [24] A federal court must conduct a preliminary screening in any case in which a prisoner seeks [25] redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. [27] 1 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 2 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 3 monetary relief from a defendant who is immune from such relief. Id. § 1915A(b)(1), (2). Pro se 4 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 5 Cir. 1988). 6 To state a claim under 42 U.S.C. § 1983 , a plaintiff must allege two essential elements: 7 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that 8 the alleged violation was committed by a person acting under the color of state law. West v. 9 Atkins, 487 U.S. 42, 48 (1988). 10 A supervisor may be liable under section 1983 upon a showing of personal involvement in 11 the constitutional deprivation or a sufficient causal connection between the supervisor’s wrongful 12 conduct and the constitutional violation. Redman v. County of San Diego, 942 F.2d 1435 , 1446 13 (9th Cir. 1991) (en banc) (citation omitted). A supervisor therefore generally “is only liable for 14 constitutional violations of his subordinates if the supervisor participated in or directed the 15 violations, or knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 16 1040, 1045 (9th Cir. 1989). This includes evidence that a supervisor implemented “a policy so 17 deficient that the policy itself is a repudiation of constitutional rights and is the moving force of 18 the constitutional violation.” Redman, 942 F.2d at 1446 ; see Jeffers v. Gomez, 267 F.3d 895 , 917 19 (9th Cir. 2001). 20 B. Legal Claim 21 Plaintiff’s sole claim in the instant action is one of retaliation based on supervisorial 22 liability against Defendant M. B. Atchley, who is SVSP’s Acting Warden. Dkt. 9 at 2. However, 23 Plaintiff has made only conclusory allegations, which do not amount to a cognizable claim of 24 retaliation. To state a claim for First Amendment retaliation against a government official, a 25 plaintiff must demonstrate that (1) he engaged in constitutionally protected activity; (2) as a result, 26 he was subjected to adverse action by the defendant that would chill a person of ordinary firmness 27 from continuing to engage in the protected activity; and (3) there was a substantial causal 1 Nichols, 835 F.3d 983, 988 (9th Cir. 2016). The right of access to the courts extends to the 2 exercise of established prison grievance procedures, Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 3 1995), such that a prisoner may not be retaliated against for using such procedures. Rhodes v. 4 Robinson, 408 F.3d 559, 567 (9th Cir. 2005); Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003). 5 Here, Plaintiff states in a conclusory fashion that unnamed prison officials “were retaliatory by 6 either destroying Plaintiff[’s] legal mail or by trashing [his] legal mail.” Dkt. 9 at 2. Plaintiff 7 claims as follows: 8 [He] filed several grievances regarding issues with legal mail on 928-20 . . . [which were] sent to CDCR Headquarters. Plaintiff holds 9 the Warden M. B. Atchley responsible for all supervisor[y] liability and all policy implementation and the management of peace officer 10 misconduct . . . .” 11 Id. at 4. However, Plaintiff has not alleged facts sufficient to support any of the aforementioned 12 elements of retaliation. Plaintiff’s conclusory allegations of wrongdoing are insufficient to state a 13 cognizable claim for relief. Plaintiff must be more specific to allege that he engaged in 14 constitutionally-protected conduct, that certain named prison staff took adverse action against him 15 in retaliation for the protected conduct, and that Plaintiff suffered harm as a result of the 16 retaliation. Plaintiff will be granted the opportunity to amend his retaliation claim in order to 17 bring forth a cognizable claim, if he is able to do so. Furthermore, Plaintiff’s claim cannot 18 proceed as pleaded because he has not directly linked Defendant Atchley to his allegations. The 19 Court notes that Defendant Atchley is being sued by Plaintiff as a supervisory official, against 20 whom liability is alleged solely in this Defendant’s respondent superior capacity, which is 21 improper. See Taylor, 880 F.2d at 1045 (Under no circumstances is there respondeat superior 22 liability under section 1983.). 23 Accordingly, Plaintiff’s amended complaint is DISMISSED with leave to amend in order 24 to correct the aforementioned deficiencies. Rule 8(a) of the Federal Rules of Civil Procedure 25 requires that the complaint set forth “a short and plain statement of the claim showing that the 26 pleader is entitled to relief.” Additionally, Rule 8(e) requires that each averment of a pleading be 27 “simple, concise, and direct.” See McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996) 1 largely irrelevant”). While the federal rules require brevity in pleading, a complaint nevertheless 2 must be sufficient to give the defendants “fair notice” of the claim and the “grounds upon which it 3 rests.” Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (quotation and citation omitted). A 4 complaint that fails to state the specific acts of the defendant that violated the plaintiff’s rights fails 5 to meet the notice requirements of Rule 8(a). See Hutchinson v. United States, 677 F.2d 1322 , 6 1328 n.5 (9th Cir. 1982). However, under section 1983, liability may be imposed on an individual 7 defendant only if the plaintiff can show that the defendant proximately caused the deprivation of a 8 federally protected right. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). As explained 9 above, a supervisor may be liable under § 1983 only upon a showing of (1) personal involvement 10 in the constitutional deprivation or (2) a sufficient causal connection between the supervisor’s 11 wrongful conduct and the constitutional violation. Redman, 942 F.2d at 1446 . And, there is no 12 respondeat superior liability under section 1983. See Taylor, 880 F.2d at 1045 . 13 Finally, also before the Court is Plaintiff’s motion entitled, “Mo[tion] to Adhere and to 14 Investigate Plaintiff[’]s History and Case File With the U.S. District Court Eastern District,” 15 which has been construed as a request for a fee waiver. Dkt. 8. The Court notes that 28 U.S.C. 16 § 1915(b)(1) only authorizes the district court to waive prepayment of the filing fee, not the filing 17 fee itself. See 28 U.S.C. § 1915 (b)(1). Accordingly, Petitioner’s request for a fee waiver is 18 DENIED on the ground that the Court only has the authority to waive prepayment of the filing fee. 19 (The Court will be granting Plaintiff’s motion for leave to proceed in forma pauperis in a separate 20 written Order, in which it has indicated that it will not collect any partial filing fee at this time.) 21 III. CONCLUSION 22 For the foregoing reasons, the Court orders as follows: 23 1. The amended complaint is DISMISSED with leave to amend, as indicated above, 24 within twenty-eight (28) days of the date this Order is filed. The second amended complaint 25 must include the caption and civil case number used in this Order—Case No. 20-cv-03156 YGR 26 (PR)—and the words “SECOND AMENDED COMPLAINT” on the first page. Because the 27 second amended complaint completely replaces the prior pleadings, Plaintiff may not incorporate 1 all the claims and allegations he wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258 , 1262 2 || (9th Cir. 1992). Plaintiff’s failure to file his second amended complaint by the twenty-eight3 day deadline or to correct the aforementioned deficiencies outlined above will result in the 4 || dismissal of this action without prejudice. 5 2. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court 6 || informed of any change of address and must comply with the Court’s orders in a timely fashion. 7 Pursuant to Northern District Local Rule 3-11 a party proceeding pro se whose address changes 8 while an action is pending must promptly file a notice of change of address specifying the new 9 address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint when: (1) mail 10 || directed to the pro se party by the Court has been returned to the Court as not deliverable, and 11 (2) the Court fails to receive within sixty days of this return a written communication from the pro 12 || se party indicating a current address. See L.R. 3-11(b). 5 13 3. The Court DENIES Plaintiff’s motion entitled, “Mo[tion] to Adhere and to 14 || Investigate Plaintiff[’]s History and Case File With the U.S. District Court [for the] Eastern 3 15 || District,’ which has been construed as a request for a fee waiver. Dkt. 8. a 16 4. The Clerk of the Court shall send Plaintiff a blank civil rights complaint form along 3 17 with his copy of this Order. 18 5. This Order terminates Docket No. 8. 19 IT IS SO ORDERED. 20 Dated: December 8, 2020 21 Lgpset Hsecelflees, (ONNE GONZALEZ ROGERS United States District Judge