SEAN L. CASEY, II, No. 2:24-cv-01316-EFB (PC) Plaintiff, v. ORDER JEFF LYNCH, et al., Defendant. Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. In addition to filing a complaint, plaintiff has filed an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. ECF No. 6. Leave to Proceed In Forma Pauperis Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. § 1915(b)(1) and (2). Screening Standards Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief may be granted,” or “seeks monetary relief from a defendant who is immune from such relief.” Id. § 1915A(b). A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). While the complaint must comply with the “short and plaint statement” requirements of Rule 8, its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). To avoid dismissal for failure to state a claim a complaint must contain more than “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 678. Furthermore, a claim upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Screening Order Plaintiff claims that, on March 8, 2024, while he was working a prison job, defendant Correctional Officer Rojas told him to “go sit the f**k down somewhere.” ECF No. 1 at 3. A co- worker continued to work without “harassment.” Id. Plaintiff asked unidentified correctional officers in “CTC1” that he “not be strictly scrutinized and harassed while working.” Id. The next day, defendant Correctional Officer Igbokwe “retaliated” against plaintiff by refusing to allow him to work, saying, “I don’t want you here.” Id. Plaintiff had not been found guilty of any policy violation that would justify his removal from his job, but Igbokwe lied and said that plaintiff had made the women in CTC1 uncomfortable. Id. These allegations do not state a cognizable claim for violation of the U.S. Constitution. There is no constitutional right to a prison job. Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1997). At-will government employees can be fired based on mistaken or unreasonable information, and there is no claim based solely on being treated worse than other similarly- situated employees. Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 606-08 (2008). Being fired from a prison job may form part of a claim of retaliation in violation of the First Amendment, however, where the elements of such a claim are satisfied. To state a claim for retaliation in violation of the First Amendment, a prisoner must allege facts showing five elements: (1) that a state actor took some adverse action against him (2) because of (3) his protected conduct, (4) that such action chilled his exercise of his First Amendment rights, and (5) that the action did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). Here, plaintiff has failed to allege facts showing that he was fired because he engaged in conduct protected by the First Amendment. A public employee’s speech is protected by the Constitution only if it is made as a citizen on a matter of public concern, rather than pursuant to the employee’s official duties. Garcetti v. Ceballos, 547 U.S. 410, 418 (2006); Yescas v. McCourt, No. 3:23-cv-00106-TWR-AHG, 2024 U.S. Dist. LEXIS 135706, at *36 (S.D. Cal. July 30, 2024). Plaintiff’s complaint regarding Rojas did not involve a matter of public concern. Accordingly, the complaint must be dismissed for failure to state a cognizable claim. Leave to Amend Plaintiff’s complaint is dismissed with leave to amend. If plaintiff chooses to file an amended complaint it should observe the following: Any amended complaint must identify as a defendant only persons who personally participated in a substantial way in depriving him of a federal constitutional right. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a constitutional right if he does an act, participates in another’s act or omits to perform an act he is legally required to do that causes the alleged deprivation). The complaint should also describe, in sufficient detail, how each defendant personally violated or participated in the violation of his rights. The court will not infer the existence of allegations that have not been explicitly set forth in the amended complaint. The amended complaint must contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a). Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Any amended complaint must be written or typed so that it so that it is complete in itself without reference to any earlier filed complaint. E.D. Cal
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SEAN L. CASEY, II, No. 2:24-cv-01316-EFB (PC) Plaintiff, v. ORDER JEFF LYNCH, et al., Defendant. Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. In addition to filing a complaint, plaintiff has filed an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. ECF No. 6. Leave to Proceed In Forma Pauperis Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. § 1915(b)(1) and (2). Screening Standards Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief may be granted,” or “seeks monetary relief from a defendant who is immune from such relief.” Id. § 1915A(b). A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). While the complaint must comply with the “short and plaint statement” requirements of Rule 8, its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). To avoid dismissal for failure to state a claim a complaint must contain more than “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 678. Furthermore, a claim upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Screening Order Plaintiff claims that, on March 8, 2024, while he was working a prison job, defendant Correctional Officer Rojas told him to “go sit the f**k down somewhere.” ECF No. 1 at 3. A co- worker continued to work without “harassment.” Id. Plaintiff asked unidentified correctional officers in “CTC1” that he “not be strictly scrutinized and harassed while working.” Id. The next day, defendant Correctional Officer Igbokwe “retaliated” against plaintiff by refusing to allow him to work, saying, “I don’t want you here.” Id. Plaintiff had not been found guilty of any policy violation that would justify his removal from his job, but Igbokwe lied and said that plaintiff had made the women in CTC1 uncomfortable. Id. These allegations do not state a cognizable claim for violation of the U.S. Constitution. There is no constitutional right to a prison job. Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1997). At-will government employees can be fired based on mistaken or unreasonable information, and there is no claim based solely on being treated worse than other similarly- situated employees. Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 606-08 (2008). Being fired from a prison job may form part of a claim of retaliation in violation of the First Amendment, however, where the elements of such a claim are satisfied. To state a claim for retaliation in violation of the First Amendment, a prisoner must allege facts showing five elements: (1) that a state actor took some adverse action against him (2) because of (3) his protected conduct, (4) that such action chilled his exercise of his First Amendment rights, and (5) that the action did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). Here, plaintiff has failed to allege facts showing that he was fired because he engaged in conduct protected by the First Amendment. A public employee’s speech is protected by the Constitution only if it is made as a citizen on a matter of public concern, rather than pursuant to the employee’s official duties. Garcetti v. Ceballos, 547 U.S. 410, 418 (2006); Yescas v. McCourt, No. 3:23-cv-00106-TWR-AHG, 2024 U.S. Dist. LEXIS 135706, at *36 (S.D. Cal. July 30, 2024). Plaintiff’s complaint regarding Rojas did not involve a matter of public concern. Accordingly, the complaint must be dismissed for failure to state a cognizable claim. Leave to Amend Plaintiff’s complaint is dismissed with leave to amend. If plaintiff chooses to file an amended complaint it should observe the following: Any amended complaint must identify as a defendant only persons who personally participated in a substantial way in depriving him of a federal constitutional right. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a constitutional right if he does an act, participates in another’s act or omits to perform an act he is legally required to do that causes the alleged deprivation). The complaint should also describe, in sufficient detail, how each defendant personally violated or participated in the violation of his rights. The court will not infer the existence of allegations that have not been explicitly set forth in the amended complaint. The amended complaint must contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a). Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Any amended complaint must be written or typed so that it so that it is complete in itself without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967)). Finally, the court notes that any amended complaint should be as concise as possible in fulfilling the above requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of procedural or factual background which has no bearing on his legal claims. Conclusion Accordingly, IT IS ORDERED that: 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 6) is GRANTED; 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in accordance with the notice to the Director of CDCR filed concurrently herewith; 3. Plaintiff’s complaint (ECF No. 1) is DISMISSED with leave to amend within 30 days of service of this order; and //// ] 4. Failure to comply with this order may result in dismissal of this action for the reasons stated herein. Dated: May 12, 2025 Pitti A "hehe a et Se Ai Aa UNITED STATES MAGISTRATE JUDGE 1]