(PC) Gao v. Marroquin

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 JASON GAO, ) Case No.: 1:19-cv-00438-BAM (PC) ) 12 Plaintiff, ) ORDER SCREENING PLAINTIFF’S FIRST ) AMENDED COMPLAINT, AND GRANTING 13 v. ) PLAINTIFF LEAVE TO FILE EITHER A SECOND AMENDED COMPLAINT OR A NOTICE OF 14 D. MARROQUIN, et al., ) INTENT TO PROCEED ON CLAIM FOUND TO ) BE COGNIZABLE 15 Defendants. ) ) (ECF No. 9) 16 ) ) THIRTY (30) DAY DEADLINE 17

18 Plaintiff Jason Gao is a former state prisoner proceeding pro se and in forma pauperis in this 19 civil rights action pursuant to 42 U.S.C. § 1983. On August 28, 2019, the Court screened Plaintiff’s 20 complaint and granted Plaintiff leave to file a first amended complaint. (ECF No. 8.) 21 Plaintiff’s first amended complaint, filed on October 7, 2019, is currently before the Court for 22 screening. (ECF No. 9.) 23 I. Screening Requirement and Standard 24 The Court is required to screen complaints brought by prisoners seeking relief against a 25 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 26 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or 27 malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief 28 /// 1 from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b); see also 28 U.S.C. § 2 1915(e)(2)(B). 3 A complaint must contain “a short and plain statement of the claim showing that the pleader is 4 entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 5 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 6 do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 7 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally 8 participated in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 9 2002). 10 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally 11 construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 12 (9th Cir. 2012). To survive screening, Plaintiff’s claims must be facially plausible, which requires 13 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for 14 the misconduct alleged. Iqbal, 556 U.S. at 678–79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th 15 Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and “facts 16 that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying the plausibility 17 standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 18 II. Summary of Plaintiff’s Allegations 19 Plaintiff has been released from prison. Plaintiff alleges that the events at issue in this action 20 took place when he was housed at California Correctional Institution (“CCI”). Plaintiff names the 21 following defendants: (1) CCI Correctional Case Records Manager D. Marroquin; (2) California 22 Department of Corrections and Rehabilitation (“CDCR”) Legal Processing Unit Correctional Case 23 Manager Rosie Bernal; and (3) CDCR Legal Processing Unit Correctional Case Records Analyst 24 Cathy Heifner. Plaintiff asserts that he is suing all three Defendants in both their personal and official 25 capacities. 26 Plaintiff alleges as follows: Approximately two weeks prior to December 17, 2017, Plaintiff 27 filed an administrative appeal, Log Number CCI-0-17-02715, against Defendant Marroquin. 28 Defendant Marroquin knew about Plaintiff’s administrative appeal against her because Defendant 1 Marroquin interviewed Plaintiff in order to resolve the appeal. During the interview, Defendant 2 Marroquin urged Plaintiff to withdraw his appeal. After Plaintiff refused to withdraw his appeal, 3 Defendant Marroquin’s tone of voice changed from professional to angry, she appeared agitated, and 4 she sarcastically laughed at Plaintiff as he explained his appeal issue. Prior to December 17, 2017, 5 Plaintiff’s administrative appeal against Defendant Marroquin was partially granted in his favor. 6 On or about December 17, 2017, Defendant Marroquin contacted CDCR’s Legal Processing 7 Unit and spoke with Defendants Bernal and Heifner. Defendant Marroquin told Defendants Bernal 8 and Heifner about the administrative appeal that Plaintiff had filed against her. Then, Defendant 9 Marroquin reported to Defendants Bernal and Heifner that she had discovered sentencing errors in 10 Plaintiff’s case, one of which would require a 3-year, 4-month increase in Plaintiff’s sentence. 11 Pursuant to Defendant Marroquin’s report, the Legal Processing Unit sent a letter, signed by 12 Defendants Bernal and Heifner, to Plaintiff’s sentencing court for it to determine whether Plaintiff’s 13 sentence should be increased. If Defendants Bernal and Heifner had not approved of the letter 14 regarding Plaintiff’s sentence, the letter would not have been sent to Plaintiff’s sentencing court. 15 Defendant Marroquin’s report to the Legal Processing Unit regarding Plaintiff’s sentence 16 caused Plaintiff to become apprehensive about what further action Defendant Marroquin would take 17 against him for pursuing the portion of his administrative appeal that had not been granted. “In fact, to 18 avoid any further immediate adverse action by Marroquin against [Plaintiff], he purposely protracted 19 the submission of his administrative appeal to the final level of review by failing to include all 20 supporting documents to that the final level of review would reject the appeal and, thus, give 21 [Plaintiff] more time to submit the supporting papers; however, [Plaintiff] eventually exhausted 22 administrative remedies on that matter.” (ECF No. 9, at 5.) 23 Plaintiff asserts that Defendant Marroquin had no legitimate reason to contact the Legal 24 Processing Unit because Defendant Marroquin was aware from Plaintiff’s sentencing documents that 25 Plaintiff’s sentence was imposed pursuant to a negotiated plea agreement that included the allegedly 26 problematic sentence and that, thus, any letter to the sentencing court would be frivolous. Plaintiff 27 also alleges that Defendants Bernal and Heifner were aware that Defendant Marroquin had no 28 legitimate basis for her report about Plaintiff’s sentence because both Defendants Bernal and Heifner 1 were aware from Plaintiff’s sentencing documents that Plaintiff’s sentence was imposed pursuant to a 2 negotiated plea agreement that included the allegedly problematic sentence and that, thus, any letter to 3 the sentencing court would be frivolous. 4 Plaintiff seeks compensatory and punitive damages. (Id. at 8.) 5 III. Discussion 6 A. Official Capacity 7 Plaintiff asserts that he is suing each of the named Defendants in both their individual and 8 official capacities. Plaintiff seeks monetary damages against each of the named Defendants. 9 “Suits against state officials in their official capacity … should be treated as suits against the 10 State.” Hafer v. Melo, 502 U.S. 21, 25 (1991); Holley v. Cal. Dep’t of Corr., 599 F.3d 1108, 1111 11 (9th Cir. 2010) (treating prisoner’s suit against state officials in their official capacities as a suit 12 against the state of California). An official capacity suit “represent[s] only another way of pleading an 13 action against an entity of which an officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165 14 (1985) (citation omitted). Such a suit “is not a suit against the official personally, for the real party in 15 interest is the entity.” Id. at 166. 16 “The Eleventh Amendment bars suits for money damages in federal court against a state, its 17 agencies, and state officials acting in their official capacities.” Aholelei v. Dep’t of Public Safety, 488 18 F.3d 1144, 1147 (9th Cir. 2007). Therefore, Plaintiff’s claim for monetary damages against each of 19 the named Defendants in their official capacity is barred by the Eleventh Amendment. Accordingly, 20 Plaintiff has failed to state a cognizable official capacity claim against Defendants Marroquin, Bernal, 21 and Heifner. 22 B. Retaliation 23 Allegations of retaliation against a prisoner’s First Amendment rights to speech or to petition 24 the government may support a § 1983 claim. Silva v. Di Vittorio, 658 F.3d 1090, 1104 (9th Cir. 25 2011); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also Valandingham v. Bojorquez, 866 26 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). “Within the prison 27 context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that 28 a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected 1 conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) 2 the action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 3 559, 567-68 (9th Cir. 2005); accord Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012); Silva, 4 658 at 1104; Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). 5 Adverse action taken against a prisoner “need not be an independent constitutional violation. 6 The mere threat of harm can be an adverse action.” Watison, 688 F.3d at 1114 (internal citations 7 omitted). A causal connection between the adverse action and the protected conduct can be alleged by 8 an allegation of a chronology of events from which retaliation can be inferred. Id. The filing of 9 grievances and the pursuit of civil rights litigation against prison officials are both protected activities. 10 Rhodes, 408 F.3d at 567–68. The plaintiff must allege either a chilling effect on future First 11 Amendment activities, or that he suffered some other harm that is “more than minimal.” Watison, 668 12 F.3d at 1114. A plaintiff successfully pleads that the action did not reasonably advance a legitimate 13 correctional goal by alleging, in addition to a retaliatory motive, that the defendant’s actions were 14 “arbitrary and capricious” or that they were “unnecessary to the maintenance of order in the 15 institution.” Id. 16 Liberally construing the facts in Plaintiff’s favor, which the Court must do at the pleading 17 stage, Plaintiff has stated a cognizable claim for retaliation in violation of the First Amendment against 18 Defendant Marroquin based on Defendant Marroquin’s allegedly false report about Plaintiff’s 19 sentence to Defendants Bernal and Heifner of the Legal Processing Unit. 20 However, Plaintiff has failed to state a cognizable retaliation claim against Defendants Bernal 21 and Heifner because Plaintiff has not alleged any facts establishing that Defendants Bernal’s and 22 Heifer’s action in signing and sending the letter regarding Plaintiff’s sentence to Plaintiff’s sentencing 23 court either chilled Plaintiff’s exercise of his First Amendment rights or caused Plaintiff to suffer some 24 other harm that is “more than minimal.” Watison, 668 F.3d at 1114. 25 C. Conspiracy 26 “Conspiracy is not itself a constitutional tort under § 1983. It does not enlarge the nature of the 27 claims asserted by the plaintiff, as there must always be an underlying constitutional violation. 28 Conspiracy may however, enlarge the pool of responsible defendants by demonstrating their causal 1 connections to the violation; the fact of the conspiracy may make a party liable for the unconstitutional 2 actions of the party with whom he has conspired.” Lacey v. Maricopa Cnty., 693 F.3d 896, 935 (9th 3 Cir. 2012) (internal citations omitted). 4 To establish a cognizable claim for conspiracy under 42 U.S.C. § 1983, a plaintiff must allege 5 (1) the existence of an express or implied agreement among the defendants to deprive the plaintiff of 6 his constitutional rights, and (2) an actual deprivation of those rights resulting from that agreement. 7 Avalos v. Baca, 596 F.3d 583, 592 (9th Cir. 2010). To establish a conspiracy, Plaintiff allege specific 8 facts showing “an agreement or meeting of the minds to violate constitutional rights. To be liable, 9 each participant in the conspiracy need not know the exact details of the plan, but each participant 10 must at least share the common objective of the conspiracy.” Franklin v. Fox, 312 F.3d 423, 441 (9th 11 Cir. 2002) (internal citations and quotation marks omitted). The mere conclusory statement that 12 defendants “conspired” together is not sufficient to state a cognizable claim. Woodrum v. Woodward 13 Cnty., 866 F.2d 1121, 1126 (9th Cir. 1989). 14 Here, Plaintiff asserts that Defendants Marroquin, Bernal, and Heifner conspired to retaliate 15 against Plaintiff by sending a letter making a frivolous claim about Plaintiff’s sentence to Plaintiff’s 16 sentencing court after Plaintiff filed an administrative appeal against Defendant Marroquin. However, 17 Plaintiff has failed to sufficiently allege that he suffered an actual deprivation of his constitutional 18 rights resulting from any agreement among Defendants Marroquin, Bernal, and Heifner because 19 Plaintiff’s allegations regarding signing and sending the letter about Plaintiff’s sentence to Plaintiff’s 20 sentencing court are insufficient to state a claim for retaliation or any other deprivation of his 21 constitutional rights. See Cassettari v. Cnty. of Nevada, 824 F.2d 735, 739 (9th Cir. 1987) (“The 22 insufficiency of these allegations to support a section 1983 violation precludes a conspiracy claim 23 predicated upon the same allegations.”); see also Landrigan v. City of Warwick, 628 F.2d 736, 742 24 (1st Cir. 1980) (“In order to state an adequate claim for [conspiracy] under section 1983, ‘plaintiff 25 must allege … both a conspiracy and an actual deprivation of rights; mere proof of a conspiracy is 26 insufficient to establish a section 1983 [conspiracy] claim.’”). Therefore, Plaintiff has not alleged a 27 cognizable conspiracy claim against Defendants Marroquin, Bernal, and Heifner. 28 /// 1 IV. Conclusion and Order 2 Based on the foregoing, the Court finds that Plaintiff states a cognizable claim against 3 Defendant Marroquin for retaliation in violation of the First Amendment based on Defendant 4 Marroquin’s allegedly false report about Plaintiff’s sentence to Defendants Bernal and Heifner of the 5 Legal Processing Unit. However, Plaintiff does not state any other cognizable claims against any 6 other Defendants. Plaintiff will be granted an opportunity to amend his complaint to cure the above- 7 identified deficiencies to the extent he is able to do so in good faith. Lopez v. Smith, 203 F.3d 1122, 8 1130 (9th Cir. 2000). 9 If Plaintiff does not wish to file a second amended complaint and he is agreeable to proceeding 10 only on the cognizable claims identified by the Court, he may file a notice informing the Court that he 11 does not intend to amend and he is willing to proceed only on his cognizable claims. The Court will 12 then recommend to a District Judge that the instant action proceed only on the claims found to be 13 cognizable and that all other remaining claims and defendants be dismissed from this action. 14 If Plaintiff wishes to file a second amended complaint, any such second amended complaint 15 should be brief, Fed. R. Civ. P. 8(a), but it must state what each named defendant did that led to the 16 deprivation of Plaintiff’s constitutional rights, Iqbal, 556 U.S. at 678-79. Although accepted as true, 17 the “[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level . . . .” 18 Twombly, 550 U.S. at 555 (citations omitted). 19 Additionally, Plaintiff may not change the nature of this suit by adding new, unrelated claims 20 in his second amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” 21 complaints). 22 Finally, Plaintiff is advised that an amended complaint supersedes the original complaint. 23 Lacey, 693 F.3d at 927. Therefore, Plaintiff’s second amended complaint must be “complete in itself 24 without reference to the prior or superseded pleading.” Local Rule 220. 25 Based on the foregoing, it is HEREBY ORDERED that: 26 1. The Clerk’s office shall send Plaintiff a complaint form; 27 2. Within thirty (30) days from the date of service of this order, Plaintiff must either: 28 /// 1 a. File a second amended complaint curing the deficiencies identified by the Court 2 in this order; or 3 b. Notify the Court in writing that he does not wish to file a second amended 4 complaint and that he is willing to proceed only on the cognizable claim for 5 retaliation in violation of the First Amendment against Defendant Marroquin, as 6 identified by the Court in this order; and 7 3. If Plaintiff fails to comply with this order, the Court will recommend dismissal of this 8 action, without prejudice, for failure to obey a court order and for failure to prosecute. 9 10 IT IS SO ORDERED.

11 Dated: December 9, 2019 /s/ Barbara A. McAuliffe _ 12 UNITED STATES MAGISTRATE JUDGE

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