(PC) Brannigan v. Rhea

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JASON R. BRANNIGAN, Case No. 2:23-cv-0725-KJM-JDP (P) 12 Plaintiff, 13 v. ORDER 14 RHEA, 15 Defendant. 16 17 18 Plaintiff, a state prisoner, brought this action alleging that defendant Rhea and other 19 unnamed officers deprived him of his personal property. I recommended that the action be 20 dismissed, as plaintiff had failed to allege that he availed himself of the post deprivation remedy 21 held out by California for such a loss. ECF No. 14. The district judge adopted in part, referring 22 the matter back to me to consider whether an amended complaint might state a claim for 23 retaliation. ECF No. 18. After moving to amend, ECF No. 20, plaintiff has filed a third amended 24 complaint, ECF No. 21. The third amended complaint states a potentially cognizable First 25 Amendment retaliation claim against defendant Rhea. It fails to state any other viable claim. 26 Accordingly, plaintiff must decide whether to proceed only with this viable claim, or delay 27 serving any defendant and file another amended complaint. 28 1 Screening Order 2 I. Screening and Pleading Requirements 3 A federal court must screen a prisoner’s complaint that seeks relief against a governmental 4 entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable 5 claims and dismiss any portion of the complaint that is frivolous or malicious, fails to state a 6 claim upon which relief may be granted, or seeks monetary relief from a defendant who is 7 immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 8 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 9 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 10 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 11 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 12 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 13 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 14 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 15 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 16 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 17 n.2 (9th Cir. 2006) (en banc) (citations omitted). 18 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 19 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 20 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 21 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 22 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 23 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 24 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 25 II. Analysis 26 As before, the majority of plaintiff’s complaint is devoted to allegations that defendant 27 Rhea and other, unnamed correctional officers wrongfully deprived him of his personal property. 28 He still does not allege that he complied with California’s available post-deprivation remedy for 1 | the loss of his property. See Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994). Those 2 | claims remain nonviable. 3 Plaintiff does now allege that defendant Rhea’s confiscation of his property was 4 | retaliation for his filing of grievances “against a number of staff.” ECF No. 21 at 11. This 5 | allegation is sufficient to state a viable First Amendment retaliation claim against this defendant. 6 Plaintiff also alleges that an unnamed warden defendant instituted a policy of retaliating 7 | against inmates who petitioned the government for redress of grievances, ECF No. 21 at 11, but 8 | he offers no specifics connecting this purported policy with Rhea’s misconduct. If this claim is to 9 | proceed, plaintiff must elaborate on the specifics of this policy and explain how he knows that it 10 | motivated Rhea’s actions. Similarly, plaintiff's claim that another unnamed officer “participated 11 | inthe retaliation” is not sufficient. /d. Plaintiff must describe the participation in specific terms. 12 Accordingly, it is ORDERED that: 13 1. Within thirty days from the service of this order, plaintiff must indicate his intent to 14 | proceed only with his First Amendment retaliation claim against defendant Rhea, or he must file 15 || another amended complaint. 16 2. The Clerk of Court shall send plaintiff a section 1983 complaint form with this order. 17 3. Plaintiff’s motion to amend, ECF No. 20, is GRANTED. 18 19 IT IS SO ORDERED. 20 ( 1 Oy — Dated: _ November 13, 2024 Q_-——— 21 JEREMY D. PETERSON 9 UNITED STATES MAGISTRATE JUDGE

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