1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 AARON ELLIOTT, Case No. 19-cv-06005-PJH
8 Plaintiff, ORDER OF DISMISSAL WITH LEAVE 9 v. TO AMEND
10 J. CABALLERO, Defendant. 11
12 13 Plaintiff, a state prisoner, proceeds with a pro se civil rights complaint under 42 14 U.S.C. § 1983. The amended complaint was dismissed with leave to amend and plaintiff 15 has filed a second amended complaint. 16 DISCUSSION 17 STANDARD OF REVIEW 18 Federal courts must engage in a preliminary screening of cases in which prisoners 19 seek redress from a governmental entity or officer or employee of a governmental entity. 20 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and 21 dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief 22 may be granted, or seek monetary relief from a defendant who is immune from such 23 relief. Id. at 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v. 24 Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 25 Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement 26 of the claim showing that the pleader is entitled to relief." "Specific facts are not 27 necessary; the statement need only '"give the defendant fair notice of what the . . . . claim 1 (citations omitted). Although in order to state a claim a complaint “does not need detailed 2 factual allegations, . . . a plaintiff's obligation to provide the 'grounds’ of his 'entitle[ment] 3 to relief' requires more than labels and conclusions, and a formulaic recitation of the 4 elements of a cause of action will not do. . . . Factual allegations must be enough to 5 raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 6 U.S. 544, 555 (2007) (citations omitted). A complaint must proffer "enough facts to state 7 a claim to relief that is plausible on its face." Id. at 570. The United States Supreme 8 Court has recently explained the “plausible on its face” standard of Twombly: “While legal 9 conclusions can provide the framework of a complaint, they must be supported by factual 10 allegations. When there are well-pleaded factual allegations, a court should assume their 11 veracity and then determine whether they plausibly give rise to an entitlement to relief.” 12 Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 13 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 14 elements: (1) that a right secured by the Constitution or laws of the United States was 15 violated, and (2) that the alleged deprivation was committed by a person acting under the 16 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 17 LEGAL CLAIMS 18 Plaintiff alleges that he was improperly found guilty of several false disciplinary 19 violations in retaliation for his protected conduct. 20 “‘Federal law opens two main avenues to relief on complaints related to 21 imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under the 22 Civil Rights Act of 1871, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983. Challenges 23 to the lawfulness of confinement or to particulars affecting its duration are the province of 24 habeas corpus.’” Hill v. McDonough, 547 U.S. 573, 579 (2006) (quoting Muhammad v. 25 Close, 540 U.S. 749, 750 (2004)). “An inmate’s challenge to the circumstances of his 26 confinement, however, may be brought under § 1983.” Id. 27 Habeas is the “exclusive remedy” for the prisoner who seeks “‘immediate or 1 (quoting Wilkinson v. Dotson, 544 U.S. 74, 82 (2005)); see Calderon v. Ashmus, 523 U.S. 2 740, 747 (1998); Edwards v. Balisok, 520 U.S. 641, 648 (1997); Preiser v. Rodriguez, 3 411 U.S. 475, 500 (1973). “Where the prisoner’s claim would not ‘necessarily spell 4 speedier release,’ however, suit may be brought under § 1983.’” Skinner, 562 U.S. at 5 533-34 (quoting Wilkinson, 544 U.S. at 82). In fact, a § 1983 action is the exclusive 6 remedy for claims by state prisoners that do not “lie at the ‘core of habeas corpus.’” 7 Nettles v. Grounds, 830 F.3d 922, 931 (9th Cir. 2016) (en banc) (quoting Preiser, 411 8 U.S. at 487). A claim that meets the statutory criteria of § 1983 may be asserted unless it 9 is within the core of habeas corpus because “its success would release the claimant from 10 confinement or shorten its duration.” Thornton v. Brown, 757 F.3d 834, 841 (9th Cir. 11 2014) (citing Preiser, 411 U.S. at 500). A challenge to a disciplinary finding that resulted 12 in assessment of time credits must be brought in habeas if reinstatement of the time 13 credits would “necessarily spell speedier release.” See Skinner, 561 U.S. at 525. 14 “Within the prison context, a viable claim of First Amendment retaliation entails five 15 basic elements: (1) An assertion that a state actor took some adverse action against an 16 inmate (2) because of (3) that prisoner's protected conduct, and that such action 17 (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not 18 reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 19 567-68 (9th Cir. 2005) (footnote omitted). Accord Pratt v. Rowland, 65 F.3d 802, 806 (9th 20 Cir. 1995) (prisoner suing prison officials under § 1983 for retaliation must allege that he 21 was retaliated against for exercising his constitutional rights and that the retaliatory action 22 did not advance legitimate penological goals, such as preserving institutional order and 23 discipline). The prisoner must show that the type of activity he was engaged in was 24 constitutionally protected, that the protected conduct was a substantial or motivating 25 factor for the alleged retaliatory action, and that the retaliatory action advanced no 26 legitimate penological interest. Hines v. Gomez, 108 F.3d 265, 267-68 (9th Cir. 1997) 27 (inferring retaliatory motive from circumstantial evidence). 1 that plaintiff was in possession of a cell phone in December 2018. Plaintiff states that this 2 was in retaliation for plaintiff refusing to be a snitch. Plaintiff states that as a result of 3 defendant’s actions he lost 120 days of good time credits.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 AARON ELLIOTT, Case No. 19-cv-06005-PJH
8 Plaintiff, ORDER OF DISMISSAL WITH LEAVE 9 v. TO AMEND
10 J. CABALLERO, Defendant. 11
12 13 Plaintiff, a state prisoner, proceeds with a pro se civil rights complaint under 42 14 U.S.C. § 1983. The amended complaint was dismissed with leave to amend and plaintiff 15 has filed a second amended complaint. 16 DISCUSSION 17 STANDARD OF REVIEW 18 Federal courts must engage in a preliminary screening of cases in which prisoners 19 seek redress from a governmental entity or officer or employee of a governmental entity. 20 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and 21 dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief 22 may be granted, or seek monetary relief from a defendant who is immune from such 23 relief. Id. at 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v. 24 Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 25 Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement 26 of the claim showing that the pleader is entitled to relief." "Specific facts are not 27 necessary; the statement need only '"give the defendant fair notice of what the . . . . claim 1 (citations omitted). Although in order to state a claim a complaint “does not need detailed 2 factual allegations, . . . a plaintiff's obligation to provide the 'grounds’ of his 'entitle[ment] 3 to relief' requires more than labels and conclusions, and a formulaic recitation of the 4 elements of a cause of action will not do. . . . Factual allegations must be enough to 5 raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 6 U.S. 544, 555 (2007) (citations omitted). A complaint must proffer "enough facts to state 7 a claim to relief that is plausible on its face." Id. at 570. The United States Supreme 8 Court has recently explained the “plausible on its face” standard of Twombly: “While legal 9 conclusions can provide the framework of a complaint, they must be supported by factual 10 allegations. When there are well-pleaded factual allegations, a court should assume their 11 veracity and then determine whether they plausibly give rise to an entitlement to relief.” 12 Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 13 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 14 elements: (1) that a right secured by the Constitution or laws of the United States was 15 violated, and (2) that the alleged deprivation was committed by a person acting under the 16 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 17 LEGAL CLAIMS 18 Plaintiff alleges that he was improperly found guilty of several false disciplinary 19 violations in retaliation for his protected conduct. 20 “‘Federal law opens two main avenues to relief on complaints related to 21 imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under the 22 Civil Rights Act of 1871, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983. Challenges 23 to the lawfulness of confinement or to particulars affecting its duration are the province of 24 habeas corpus.’” Hill v. McDonough, 547 U.S. 573, 579 (2006) (quoting Muhammad v. 25 Close, 540 U.S. 749, 750 (2004)). “An inmate’s challenge to the circumstances of his 26 confinement, however, may be brought under § 1983.” Id. 27 Habeas is the “exclusive remedy” for the prisoner who seeks “‘immediate or 1 (quoting Wilkinson v. Dotson, 544 U.S. 74, 82 (2005)); see Calderon v. Ashmus, 523 U.S. 2 740, 747 (1998); Edwards v. Balisok, 520 U.S. 641, 648 (1997); Preiser v. Rodriguez, 3 411 U.S. 475, 500 (1973). “Where the prisoner’s claim would not ‘necessarily spell 4 speedier release,’ however, suit may be brought under § 1983.’” Skinner, 562 U.S. at 5 533-34 (quoting Wilkinson, 544 U.S. at 82). In fact, a § 1983 action is the exclusive 6 remedy for claims by state prisoners that do not “lie at the ‘core of habeas corpus.’” 7 Nettles v. Grounds, 830 F.3d 922, 931 (9th Cir. 2016) (en banc) (quoting Preiser, 411 8 U.S. at 487). A claim that meets the statutory criteria of § 1983 may be asserted unless it 9 is within the core of habeas corpus because “its success would release the claimant from 10 confinement or shorten its duration.” Thornton v. Brown, 757 F.3d 834, 841 (9th Cir. 11 2014) (citing Preiser, 411 U.S. at 500). A challenge to a disciplinary finding that resulted 12 in assessment of time credits must be brought in habeas if reinstatement of the time 13 credits would “necessarily spell speedier release.” See Skinner, 561 U.S. at 525. 14 “Within the prison context, a viable claim of First Amendment retaliation entails five 15 basic elements: (1) An assertion that a state actor took some adverse action against an 16 inmate (2) because of (3) that prisoner's protected conduct, and that such action 17 (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not 18 reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 19 567-68 (9th Cir. 2005) (footnote omitted). Accord Pratt v. Rowland, 65 F.3d 802, 806 (9th 20 Cir. 1995) (prisoner suing prison officials under § 1983 for retaliation must allege that he 21 was retaliated against for exercising his constitutional rights and that the retaliatory action 22 did not advance legitimate penological goals, such as preserving institutional order and 23 discipline). The prisoner must show that the type of activity he was engaged in was 24 constitutionally protected, that the protected conduct was a substantial or motivating 25 factor for the alleged retaliatory action, and that the retaliatory action advanced no 26 legitimate penological interest. Hines v. Gomez, 108 F.3d 265, 267-68 (9th Cir. 1997) 27 (inferring retaliatory motive from circumstantial evidence). 1 that plaintiff was in possession of a cell phone in December 2018. Plaintiff states that this 2 was in retaliation for plaintiff refusing to be a snitch. Plaintiff states that as a result of 3 defendant’s actions he lost 120 days of good time credits. 4 Plaintiff also alleges that on February 13, 2019, he received a disciplinary finding 5 for possession of drug paraphernalia and at the hearing plaintiff requested pictures of the 6 evidence and witnesses which may have been denied by Lt. Martinez. Though, Lt. 7 Martinez is not named as a defendant in this action. It is also possible that plaintiff was 8 prevented from viewing evidence and calling witnesses with respect to the disciplinary 9 finding involving defendant and the cell phone, though it is not clear. It is also not clear if 10 there were two separate hearings or if there was one hearing for both disciplinary 11 incidents. The court is also uncertain if the loss of good time credits was only for one 12 disciplinary finding and what was the other punishment. 13 The complaint is dismissed with leave to amend to provide more information and 14 for plaintiff to clearly present his claims and identify the defendants. Plaintiff must state if 15 there were two separate hearings, and if so, what were the punishments for each. He 16 must also identify who are the defendants and how each defendant violated his rights. 17 He may wish to include exhibits of the hearings and disciplinary findings. 18 For the retaliation claim, plaintiff has cited no cases and the court has not found 19 caselaw indicating that refusing to snitch is considered protected conduct for a retaliation 20 claim. The Ninth Circuit has held, in a matter involving an alleged vindictive prosecution, 21 that “there is no constitutional right not to snitch.” Paguio v. Acosta, 114 F.3d 928, 930 22 (9th Cir.1997) (citing United States v. Gardner, 611 F.2d 770, 773 (9th Cir.1990)). 23 Plaintiff is also informed that in order to recover damages for an allegedly 24 unconstitutional conviction or imprisonment, or for other harm caused by actions whose 25 unlawfulness would render a conviction or sentence invalid, a 42 U.S.C. § 1983 plaintiff 26 must prove that the conviction or sentence has been reversed on direct appeal, 27 expunged by executive order, declared invalid by a state tribunal authorized to make 1 habeas corpus. Heck v. Humphrey, 512 U.S. 477, 486-487 (1994). Where a claim 2 seeking expungement of a disciplinary finding would, if successful, “necessarily 3 accelerate” the prisoner’s release on parole, Heck applies. Ramirez, 334 F.3d at 858-59 4 (interpreting Neal v. Shimoda, 131 F.3d 818 (9th Cir. 1997)). 5 In this case plaintiff only seeks money damages, but some of his claims may be 6 barred by Heck while some aspect of the claims could possibly continue in a civil rights 7 action. Plaintiff must provide the additional information described above for the court to 8 determine if plaintiff can continue in civil rights or if he must proceed in habeas. 9 CONCLUSION 10 1. The second amended complaint is DISMISSED with leave to amend in 11 accordance with the standards set forth above. The third amended complaint must be 12 filed no later than March 9, 2020, and must include the caption and civil case number 13 used in this order and the words THIRD AMENDED COMPLAINT on the first page. Because an amended complaint completely replaces the original complaint, plaintiff must 14 include in it all the claims he wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 15 1262 (9th Cir. 1992). He may not incorporate material from the original complaint by 16 reference. Failure to file an amended complaint may result in dismissal of this case. 17 2. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the 18 court informed of any change of address by filing a separate paper with the clerk headed 19 “Notice of Change of Address,” and must comply with the court's orders in a timely 20 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute 21 pursuant to Federal Rule of Civil Procedure 41(b). 22 IT IS SO ORDERED. 23 Dated: February 6, 2020 24 25 /s/ Phyllis J. Hamilton 26 PHYLLIS J. HAMILTON 27 United States District Judge