1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TIJUE ADOLPHUS MCGHEE, Case No. 23-cv-04161-HSG
8 Plaintiff, ORDER OF DISMISSAL WITH LEAVE TO AMEND 9 v.
10 SAN MATEO COUNTY SHERIFF’S OFFICE CORRECTIONS DIVISION, et al., 11 Defendants. 12 13 Plaintiff, an inmate currently housed at North Kern State Prison, has filed a pro se action 14 pursuant to 42 U.S.C. § 1983. His complaint (Dkt. No. 1) is now before the Court for review 15 under 28 U.S.C. § 1915A. Plaintiff has been granted leave to proceed in forma pauperis in a 16 separate order. 17 DISCUSSION 18 A. Standard of Review 19 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 20 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 22 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 23 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 24 (2). Pro se pleadings must, however, be liberally construed. See United States v. Qazi, 975 F.3d 25 989, 993 (9th Cir. 2020). 26 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 27 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not 1 grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). 2 While Rule 8 does not require detailed factual allegations, it demands more than an unadorned, 3 the-defendant-unlawfully-harmed-me accusation. Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). 4 A pleading that offers only labels and conclusions, or a formulaic recitation of the elements of a 5 cause of action, or naked assertions devoid of further factual enhancement does not suffice. Id. 6 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a 7 right secured by the Constitution or laws of the United States was violated, and (2) that the alleged 8 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 9 U.S. 42, 48 (1988). 10 B. Complaint 11 Plaintiff names as defendants “San Mateo County Sheriff’s Office Corrections Division, et 12 al.,” and Maguire Correctional Facility officer F. Radetic. Dkt. No. 1 at 2. 13 The complaint alleges that Plaintiff has been retaliated against for engaging in 14 constitutionally protected activity. Specifically, Plaintiff alleges that, on December 18, 2022, he 15 filed a grievance challenging San Mateo County’s mail policy whereby physical mail intended for 16 San Mateo County inmates must be sent to a company in Florida and scanned, and the inmates 17 receive that mail in electronic format, with the original hard copy mail destroyed, and that the 18 following two acts were in retaliation for this grievance. First, on February 12, 2023, his in forma 19 pauperis application for C No. 23-cv-0532 HSG1 went missing after he gave it to defendant F. 20 1 On February 6, 2023, the Court received a letter from Plaintiff addressed to the Clerk of the 21 Court, stating that he sought to update his address and stating that he had a case against correctional officer R. Jaime-Daumy, former San Quentin State Prison (“SQSP”) warden Ron 22 Ward, and current SQSP warden Broomfield, for tampering with his mail. C No. 23-cv-0532 HSG, McGhee v. Jaime-Daumy, et al. (“McGhee II”), Dkt. No. 1. That same day, the Clerk of the 23 Court erroneously opened an action based on this letter and sent Plaintiff deficiency notices, informing Plaintiff that the action would be dismissed unless he (1) filed a complaint using the 24 complaint form, and (2) either paid the filing fee or filed an application to proceed in forma pauperis. McGhee II, Dkt. Nos. 3, 4. The next day, February 7, 2023, the Court dismissed 25 McGhee II as opened in error, noting that it appeared that Plaintiff sought to file the letter in the closed case, C No. 20-cv-05135 HSG, McGhee v. Brumfield, et al. (“McGhee I”), and ordering the 26 Clerk to administratively close McGhee II as opened in error and docket Dkt. Nos. 1 and 2 in McGhee II in this case in McGhee I. McGhee II, Dkt. No. 5. Plaintiff appealed the Court’s 27 dismissal of this action to the Ninth Circuit, and the Ninth Circuit dismissed the appeal as 1 Radetic for delivery to cashier Jason Bugle. Second, on May 11, 2023, Plaintiff sent his Ninth 2 Circuit in forma pauperis application to the Service League for photocopies to be made, as 3 required by Ninth Circuit filing procedures. While the Service League informed Plaintiff that they 4 made the requested photocopies and sent the documents to Plaintiff, Plaintiff never received back 5 the original or the photocopies. See generally Dkt. No. 1. 6 The Court DISMISSES the complaint because it suffers the deficiencies identified below. 7 First, the complaint’s conclusory allegations fail to state a First Amendment retaliation 8 claim. “Within the prison context, a viable claim of First Amendment retaliation entails five basic 9 elements: (1) An assertion that a state actor took some adverse action against an inmate 10 (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 11 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 12 correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted). 13 To state a First Amendment retaliation claim, the prisoner must plausibly allege inter alia that the 14 protected conduct was a substantial or motivating factor for the alleged retaliatory action. Hines v. 15 Gomez, 108 F.3d 265, 267-68 (9th Cir. 1997). A formulaic recitation of the elements of a cause of 16 action does not suffice to state a cognizable claim for relief. Ashcroft, 556 U.S. at 677–78. It is 17 unclear whether defendant Radetic knew of Plaintiff’s December 18, 2022 grievance, and why 18 Plaintiff has reason to believe that defendant Radetic was motivated by the December 18, 2022 19 grievance. It is also unclear why Plaintiff has reason to believe that defendant Radetic destroyed 20 the in forma pauperis application. By itself, the allegation that the application went missing after 21 he handed it to defendant Radetic is insufficient to state a First Amendment retaliation claim. 22 Similarly, with respect to the alleged destruction of his appellate in forma pauperis application, 23 Plaintiff has failed to explain why he has reason to believe that correctional officials knew of his 24 protected conduct and destroyed his copies of his appellate in forma pauperis application.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TIJUE ADOLPHUS MCGHEE, Case No. 23-cv-04161-HSG
8 Plaintiff, ORDER OF DISMISSAL WITH LEAVE TO AMEND 9 v.
10 SAN MATEO COUNTY SHERIFF’S OFFICE CORRECTIONS DIVISION, et al., 11 Defendants. 12 13 Plaintiff, an inmate currently housed at North Kern State Prison, has filed a pro se action 14 pursuant to 42 U.S.C. § 1983. His complaint (Dkt. No. 1) is now before the Court for review 15 under 28 U.S.C. § 1915A. Plaintiff has been granted leave to proceed in forma pauperis in a 16 separate order. 17 DISCUSSION 18 A. Standard of Review 19 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 20 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 22 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 23 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 24 (2). Pro se pleadings must, however, be liberally construed. See United States v. Qazi, 975 F.3d 25 989, 993 (9th Cir. 2020). 26 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 27 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not 1 grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). 2 While Rule 8 does not require detailed factual allegations, it demands more than an unadorned, 3 the-defendant-unlawfully-harmed-me accusation. Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). 4 A pleading that offers only labels and conclusions, or a formulaic recitation of the elements of a 5 cause of action, or naked assertions devoid of further factual enhancement does not suffice. Id. 6 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a 7 right secured by the Constitution or laws of the United States was violated, and (2) that the alleged 8 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 9 U.S. 42, 48 (1988). 10 B. Complaint 11 Plaintiff names as defendants “San Mateo County Sheriff’s Office Corrections Division, et 12 al.,” and Maguire Correctional Facility officer F. Radetic. Dkt. No. 1 at 2. 13 The complaint alleges that Plaintiff has been retaliated against for engaging in 14 constitutionally protected activity. Specifically, Plaintiff alleges that, on December 18, 2022, he 15 filed a grievance challenging San Mateo County’s mail policy whereby physical mail intended for 16 San Mateo County inmates must be sent to a company in Florida and scanned, and the inmates 17 receive that mail in electronic format, with the original hard copy mail destroyed, and that the 18 following two acts were in retaliation for this grievance. First, on February 12, 2023, his in forma 19 pauperis application for C No. 23-cv-0532 HSG1 went missing after he gave it to defendant F. 20 1 On February 6, 2023, the Court received a letter from Plaintiff addressed to the Clerk of the 21 Court, stating that he sought to update his address and stating that he had a case against correctional officer R. Jaime-Daumy, former San Quentin State Prison (“SQSP”) warden Ron 22 Ward, and current SQSP warden Broomfield, for tampering with his mail. C No. 23-cv-0532 HSG, McGhee v. Jaime-Daumy, et al. (“McGhee II”), Dkt. No. 1. That same day, the Clerk of the 23 Court erroneously opened an action based on this letter and sent Plaintiff deficiency notices, informing Plaintiff that the action would be dismissed unless he (1) filed a complaint using the 24 complaint form, and (2) either paid the filing fee or filed an application to proceed in forma pauperis. McGhee II, Dkt. Nos. 3, 4. The next day, February 7, 2023, the Court dismissed 25 McGhee II as opened in error, noting that it appeared that Plaintiff sought to file the letter in the closed case, C No. 20-cv-05135 HSG, McGhee v. Brumfield, et al. (“McGhee I”), and ordering the 26 Clerk to administratively close McGhee II as opened in error and docket Dkt. Nos. 1 and 2 in McGhee II in this case in McGhee I. McGhee II, Dkt. No. 5. Plaintiff appealed the Court’s 27 dismissal of this action to the Ninth Circuit, and the Ninth Circuit dismissed the appeal as 1 Radetic for delivery to cashier Jason Bugle. Second, on May 11, 2023, Plaintiff sent his Ninth 2 Circuit in forma pauperis application to the Service League for photocopies to be made, as 3 required by Ninth Circuit filing procedures. While the Service League informed Plaintiff that they 4 made the requested photocopies and sent the documents to Plaintiff, Plaintiff never received back 5 the original or the photocopies. See generally Dkt. No. 1. 6 The Court DISMISSES the complaint because it suffers the deficiencies identified below. 7 First, the complaint’s conclusory allegations fail to state a First Amendment retaliation 8 claim. “Within the prison context, a viable claim of First Amendment retaliation entails five basic 9 elements: (1) An assertion that a state actor took some adverse action against an inmate 10 (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 11 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 12 correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted). 13 To state a First Amendment retaliation claim, the prisoner must plausibly allege inter alia that the 14 protected conduct was a substantial or motivating factor for the alleged retaliatory action. Hines v. 15 Gomez, 108 F.3d 265, 267-68 (9th Cir. 1997). A formulaic recitation of the elements of a cause of 16 action does not suffice to state a cognizable claim for relief. Ashcroft, 556 U.S. at 677–78. It is 17 unclear whether defendant Radetic knew of Plaintiff’s December 18, 2022 grievance, and why 18 Plaintiff has reason to believe that defendant Radetic was motivated by the December 18, 2022 19 grievance. It is also unclear why Plaintiff has reason to believe that defendant Radetic destroyed 20 the in forma pauperis application. By itself, the allegation that the application went missing after 21 he handed it to defendant Radetic is insufficient to state a First Amendment retaliation claim. 22 Similarly, with respect to the alleged destruction of his appellate in forma pauperis application, 23 Plaintiff has failed to explain why he has reason to believe that correctional officials knew of his 24 protected conduct and destroyed his copies of his appellate in forma pauperis application. By 25 itself, the allegation that his appellate in forma pauperis application and the copies of this 26 application went missing after the Service League made copies is insufficient to state a First 27 Amendment retaliation claim. Plaintiff must provide more than conclusory statements that 1 claim for First Amendment retaliation. 2 Second, with respect to the alleged destruction of his appellate in forma pauperis 3 application, Plaintiff must identify which correctional officials are responsible for the alleged 4 destruction. Plaintiff cannot sue all correctional officials employed by the San Mateo County 5 Sheriff’s Office Correctional Division simply because he has not determined which of the officers 6 are responsible for the alleged destruction of his appellate in forma pauperis application.2 7 The Court GRANTS Plaintiff leave to file an amended complaint addressing the 8 deficiencies identified above. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (district 9 court should grant leave to amend unless pleading could not possibly be cured by allegation of 10 other facts). 11 CONCLUSION 12 For the foregoing reasons, the Court DISMISSES the complaint with leave to amend. 13 Within twenty-eight (28) days of the date of this order, Plaintiff shall file an amended complaint 14 that addresses the identified deficiencies. The amended complaint must include the caption and 15 civil case number used in this order, Case No. C 23-04161 HSG (PR) and the words “AMENDED 16 COMPLAINT” on the first page. If using the court form complaint, Plaintiff must answer all the 17 questions on the form in order for the action to proceed. An amended complaint completely 18 replaces the previous complaint. See Lacey v. Maricopa Cnty., 693 F.3d 896, 925 (9th Cir. 2012). 19 Accordingly, Plaintiff must include in his amended complaint all the claims he wishes to present 20 and all of the defendants he wishes to sue, and may not incorporate material from the prior 21 complaint by reference. Failure to file an amended complaint in accordance with this order in the 22 time provided will result in dismissal of this action without further notice to Plaintiff. The Clerk 23 2 In essence, Plaintiff is seeking to sue “John Doe” defendants. Generally speaking, the use of 24 “John Doe” to identify a defendant is not favored in the Ninth Circuit, see Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980), in part because it is effectively impossible for the United States 25 Marshal to serve an anonymous defendant. The Court’s general practice is to dismiss Doe defendants without prejudice and, if the plaintiff is able to identify the unknown defendant through 26 discovery, allow the plaintiff leave to amend the complaint to name the intended defendant. See Gillespie, 629 F.2d at 642. Plaintiff may not use the federal discovery process to determine the 27 identity of the officers. Cf. Calderon v. U.S. Dist. Ct. (Nicolaus), 98 F.3d 1102, 1106 (9th Cir. 1 shall include two copies of the court’s complaint form with a copy of this order to Plaintiff. 2 IT IS SO ORDERED. 3 Dated: 2/15/2024 4 Alaprerel 8 Mbt. HAYWOOD S. GILLIAM, JR. 5 United States District Judge 6 7 8 9 10 11 a 12
15 16
it
4 18 19 20 21 22 23 24 25 26 27 28