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 DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO 13 v. ACTION 14 D. MARROQUIN, et al., FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF 15 Defendants. CERTAIN CLAIMS AND DEFENDANTS 16 (ECF Nos. 11, 12) 17 FOURTEEN (14) DAY DEADLINE 18 19 Plaintiff Jason Gao is a former state prisoner proceeding pro se and in forma pauperis in 20 this civil rights action pursuant to 42 U.S.C. § 1983. 21 On December 9, 2019, the Court screened Plaintiff’s first amended complaint and found 22 that Plaintiff stated a cognizable claim for retaliation in violation of the First Amendment against 23 Defendant Marroquin, but failed to state any other cognizable claims against any other 24 defendants. (ECF No. 11.) The Court ordered Plaintiff to either file a second amended complaint 25 or notify the Court in writing of his willingness to proceed only on the claim found cognizable by 26 the Court. (Id.) On January 3, 2020, Plaintiff notified the Court of his willingness to proceed 27 only on the cognizable retaliation claim against Defendant Marroquin identified by the Court. 28 (ECF No. 12.) 1 II. Screening Requirement and Standard 2 The Court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 4 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 5 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 6 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b); see also 28 7 U.S.C. § 1915(e)(2)(B). 8 A complaint must contain “a short and plain statement of the claim showing that the 9 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 10 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 11 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 12 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate 13 that each defendant personally participated in the deprivation of Plaintiff’s rights. Jones v. 14 Williams, 297 F.3d 930, 934 (9th Cir. 2002). 15 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 16 liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 17 1113, 1121 (9th Cir. 2012). To survive screening, Plaintiff’s claims must be facially plausible, 18 which requires sufficient factual detail to allow the Court to reasonably infer that each named 19 defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678–79; Moss v. U.S. Secret 20 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted 21 unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s liability” 22 falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 23 III. Summary of Plaintiff’s First Amended Complaint 24 Plaintiff has been released from prison. Plaintiff alleges that the events at issue in this 25 action took place when he was housed at California Correctional Institution (“CCI”). Plaintiff 26 names the following defendants: (1) CCI Correctional Case Records Manager D. Marroquin; (2) 27 California Department of Corrections and Rehabilitation (“CDCR”) Legal Processing Unit 28 Correctional Case Manager Rosie Bernal; and (3) CDCR Legal Processing Unit Correctional 1 Case Records Analyst Cathy Heifner. Plaintiff asserts that he is suing all three Defendants in 2 both their personal and official capacities. 3 Plaintiff alleges as follows: Approximately two weeks prior to December 17, 2017, 4 Plaintiff filed an administrative appeal, Log Number CCI-0-17-02715, against Defendant 5 Marroquin. Defendant Marroquin knew about Plaintiff’s administrative appeal against her 6 because Defendant Marroquin interviewed Plaintiff in order to resolve the appeal. During the 7 interview, Defendant Marroquin urged Plaintiff to withdraw his appeal. After Plaintiff refused to 8 withdraw his appeal, Defendant Marroquin’s tone of voice changed from professional to angry, 9 she appeared agitated, and she sarcastically laughed at Plaintiff as he explained his appeal issue. 10 Prior to December 17, 2017, Plaintiff’s administrative appeal against Defendant Marroquin was 11 partially granted in his favor. 12 On or about December 17, 2017, Defendant Marroquin contacted CDCR’s Legal 13 Processing Unit and spoke with Defendants Bernal and Heifner. Defendant Marroquin told 14 Defendants Bernal and Heifner about the administrative appeal that Plaintiff had filed against her. 15 Then, Defendant Marroquin reported to Defendants Bernal and Heifner that she had discovered 16 sentencing errors in Plaintiff’s case, one of which would require a 3-year, 4-month increase in 17 Plaintiff’s sentence. Pursuant to Defendant Marroquin’s report, the Legal Processing Unit sent a 18 letter, signed by Defendants Bernal and Heifner, to Plaintiff’s sentencing court for it to determine 19 whether Plaintiff’s sentence should be increased. If Defendants Bernal and Heifner had not 20 approved of the letter regarding Plaintiff’s sentence, the letter would not have been sent to 21 Plaintiff’s sentencing court. 22 Defendant Marroquin’s report to the Legal Processing Unit regarding Plaintiff’s sentence 23 caused Plaintiff to become apprehensive about what further action Defendant Marroquin would 24 take against him for pursuing the portion of his administrative appeal that had not been granted. 25 “In fact, to avoid any further immediate adverse action by Marroquin against [Plaintiff], he 26 purposely protracted the submission of his administrative appeal to the final level of review by 27 failing to include all supporting documents to that the final level of review would reject the 28 appeal and, thus, give [Plaintiff] more time to submit the supporting papers; however, [Plaintiff] 1 eventually exhausted administrative remedies on that matter.” (ECF No. 9, at 5.) 2 Plaintiff asserts that Defendant Marroquin had no legitimate reason to contact the Legal 3 Processing Unit because Defendant Marroquin was aware from Plaintiff’s sentencing documents 4 that Plaintiff’s sentence was imposed pursuant to a negotiated plea agreement that included the 5 allegedly problematic sentence and that, thus, any letter to the sentencing court would be 6 frivolous. Plaintiff also alleges that Defendants Bernal and Heifner were aware that Defendant 7 Marroquin had no legitimate basis for her report about Plaintiff’s sentence because both 8 Defendants Bernal and Heifner were aware from Plaintiff’s sentencing documents that Plaintiff’s 9 sentence was imposed pursuant to a negotiated plea agreement that included the allegedly 10 problematic sentence and that, thus, any letter to the sentencing court would be frivolous. 11 Plaintiff seeks compensatory and punitive damages. (Id. at 8.) 12 IV. Discussion 13 A.
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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 DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO 13 v. ACTION 14 D. MARROQUIN, et al., FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF 15 Defendants. CERTAIN CLAIMS AND DEFENDANTS 16 (ECF Nos. 11, 12) 17 FOURTEEN (14) DAY DEADLINE 18 19 Plaintiff Jason Gao is a former state prisoner proceeding pro se and in forma pauperis in 20 this civil rights action pursuant to 42 U.S.C. § 1983. 21 On December 9, 2019, the Court screened Plaintiff’s first amended complaint and found 22 that Plaintiff stated a cognizable claim for retaliation in violation of the First Amendment against 23 Defendant Marroquin, but failed to state any other cognizable claims against any other 24 defendants. (ECF No. 11.) The Court ordered Plaintiff to either file a second amended complaint 25 or notify the Court in writing of his willingness to proceed only on the claim found cognizable by 26 the Court. (Id.) On January 3, 2020, Plaintiff notified the Court of his willingness to proceed 27 only on the cognizable retaliation claim against Defendant Marroquin identified by the Court. 28 (ECF No. 12.) 1 II. Screening Requirement and Standard 2 The Court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 4 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 5 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 6 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b); see also 28 7 U.S.C. § 1915(e)(2)(B). 8 A complaint must contain “a short and plain statement of the claim showing that the 9 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 10 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 11 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 12 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate 13 that each defendant personally participated in the deprivation of Plaintiff’s rights. Jones v. 14 Williams, 297 F.3d 930, 934 (9th Cir. 2002). 15 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 16 liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 17 1113, 1121 (9th Cir. 2012). To survive screening, Plaintiff’s claims must be facially plausible, 18 which requires sufficient factual detail to allow the Court to reasonably infer that each named 19 defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678–79; Moss v. U.S. Secret 20 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted 21 unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s liability” 22 falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 23 III. Summary of Plaintiff’s First Amended Complaint 24 Plaintiff has been released from prison. Plaintiff alleges that the events at issue in this 25 action took place when he was housed at California Correctional Institution (“CCI”). Plaintiff 26 names the following defendants: (1) CCI Correctional Case Records Manager D. Marroquin; (2) 27 California Department of Corrections and Rehabilitation (“CDCR”) Legal Processing Unit 28 Correctional Case Manager Rosie Bernal; and (3) CDCR Legal Processing Unit Correctional 1 Case Records Analyst Cathy Heifner. Plaintiff asserts that he is suing all three Defendants in 2 both their personal and official capacities. 3 Plaintiff alleges as follows: Approximately two weeks prior to December 17, 2017, 4 Plaintiff filed an administrative appeal, Log Number CCI-0-17-02715, against Defendant 5 Marroquin. Defendant Marroquin knew about Plaintiff’s administrative appeal against her 6 because Defendant Marroquin interviewed Plaintiff in order to resolve the appeal. During the 7 interview, Defendant Marroquin urged Plaintiff to withdraw his appeal. After Plaintiff refused to 8 withdraw his appeal, Defendant Marroquin’s tone of voice changed from professional to angry, 9 she appeared agitated, and she sarcastically laughed at Plaintiff as he explained his appeal issue. 10 Prior to December 17, 2017, Plaintiff’s administrative appeal against Defendant Marroquin was 11 partially granted in his favor. 12 On or about December 17, 2017, Defendant Marroquin contacted CDCR’s Legal 13 Processing Unit and spoke with Defendants Bernal and Heifner. Defendant Marroquin told 14 Defendants Bernal and Heifner about the administrative appeal that Plaintiff had filed against her. 15 Then, Defendant Marroquin reported to Defendants Bernal and Heifner that she had discovered 16 sentencing errors in Plaintiff’s case, one of which would require a 3-year, 4-month increase in 17 Plaintiff’s sentence. Pursuant to Defendant Marroquin’s report, the Legal Processing Unit sent a 18 letter, signed by Defendants Bernal and Heifner, to Plaintiff’s sentencing court for it to determine 19 whether Plaintiff’s sentence should be increased. If Defendants Bernal and Heifner had not 20 approved of the letter regarding Plaintiff’s sentence, the letter would not have been sent to 21 Plaintiff’s sentencing court. 22 Defendant Marroquin’s report to the Legal Processing Unit regarding Plaintiff’s sentence 23 caused Plaintiff to become apprehensive about what further action Defendant Marroquin would 24 take against him for pursuing the portion of his administrative appeal that had not been granted. 25 “In fact, to avoid any further immediate adverse action by Marroquin against [Plaintiff], he 26 purposely protracted the submission of his administrative appeal to the final level of review by 27 failing to include all supporting documents to that the final level of review would reject the 28 appeal and, thus, give [Plaintiff] more time to submit the supporting papers; however, [Plaintiff] 1 eventually exhausted administrative remedies on that matter.” (ECF No. 9, at 5.) 2 Plaintiff asserts that Defendant Marroquin had no legitimate reason to contact the Legal 3 Processing Unit because Defendant Marroquin was aware from Plaintiff’s sentencing documents 4 that Plaintiff’s sentence was imposed pursuant to a negotiated plea agreement that included the 5 allegedly problematic sentence and that, thus, any letter to the sentencing court would be 6 frivolous. Plaintiff also alleges that Defendants Bernal and Heifner were aware that Defendant 7 Marroquin had no legitimate basis for her report about Plaintiff’s sentence because both 8 Defendants Bernal and Heifner were aware from Plaintiff’s sentencing documents that Plaintiff’s 9 sentence was imposed pursuant to a negotiated plea agreement that included the allegedly 10 problematic sentence and that, thus, any letter to the sentencing court would be frivolous. 11 Plaintiff seeks compensatory and punitive damages. (Id. at 8.) 12 IV. Discussion 13 A. Official Capacity 14 Plaintiff asserts that he is suing each of the named Defendants in both their individual and 15 official capacities. Plaintiff seeks monetary damages against each of the named Defendants. 16 “Suits against state officials in their official capacity … should be treated as suits against 17 the State.” Hafer v. Melo, 502 U.S. 21, 25 (1991); Holley v. Cal. Dep’t of Corr., 599 F.3d 1108, 18 1111 (9th Cir. 2010) (treating prisoner’s suit against state officials in their official capacities as a 19 suit against the state of California). An official capacity suit “represent[s] only another way of 20 pleading an action against an entity of which an officer is an agent.” Kentucky v. Graham, 473 21 U.S. 159, 165 (1985) (citation omitted). Such a suit “is not a suit against the official personally, 22 for the real party in interest is the entity.” Id. at 166. 23 “The Eleventh Amendment bars suits for money damages in federal court against a state, 24 its agencies, and state officials acting in their official capacities.” Aholelei v. Dep’t of Public 25 Safety, 488 F.3d 1144, 1147 (9th Cir. 2007). Therefore, Plaintiff’s claim for monetary damages 26 against each of the named Defendants in their official capacity is barred by the Eleventh 27 Amendment. Accordingly, Plaintiff has failed to state a cognizable official capacity claim against 28 Defendants Marroquin, Bernal, and Heifner. 1 B. Retaliation 2 Allegations of retaliation against a prisoner’s First Amendment rights to speech or to 3 petition the government may support a § 1983 claim. Silva v. Di Vittorio, 658 F.3d 1090, 1104 4 (9th Cir. 2011); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also Valandingham v. 5 Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). 6 “Within the prison context, a viable claim of First Amendment retaliation entails five basic 7 elements: (1) An assertion that a state actor took some adverse action against an inmate (2) 8 because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 9 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 10 correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); accord Watison v. 11 Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012); Silva, 658 at 1104; Brodheim v. Cry, 584 F.3d 12 1262, 1269 (9th Cir. 2009). 13 Adverse action taken against a prisoner “need not be an independent constitutional 14 violation. The mere threat of harm can be an adverse action.” Watison, 688 F.3d at 1114 (internal 15 citations omitted). A causal connection between the adverse action and the protected conduct can 16 be alleged by an allegation of a chronology of events from which retaliation can be inferred. Id. 17 The filing of grievances and the pursuit of civil rights litigation against prison officials are both 18 protected activities. Rhodes, 408 F.3d at 567–68. The plaintiff must allege either a chilling effect 19 on future First Amendment activities, or that he suffered some other harm that is “more than 20 minimal.” Watison, 668 F.3d at 1114. A plaintiff successfully pleads that the action did not 21 reasonably advance a legitimate correctional goal by alleging, in addition to a retaliatory motive, 22 that the defendant’s actions were “arbitrary and capricious” or that they were “unnecessary to the 23 maintenance of order in the institution.” Id. 24 Liberally construing the facts in Plaintiff’s favor, which the Court must do at the pleading 25 stage, Plaintiff has stated a cognizable claim for retaliation in violation of the First Amendment 26 against Defendant Marroquin based on Defendant Marroquin’s allegedly false report about 27 Plaintiff’s sentence to Defendants Bernal and Heifner of the Legal Processing Unit. 28 However, Plaintiff has failed to state a cognizable retaliation claim against Defendants 1 Bernal and Heifner because Plaintiff has not alleged any facts establishing that Defendants 2 Bernal’s and Heifer’s action in signing and sending the letter regarding Plaintiff’s sentence to 3 Plaintiff’s sentencing court either chilled Plaintiff’s exercise of his First Amendment rights or 4 caused Plaintiff to suffer some other harm that is “more than minimal.” Watison, 668 F.3d at 5 1114. 6 C. Conspiracy 7 “Conspiracy is not itself a constitutional tort under § 1983. It does not enlarge the nature 8 of the claims asserted by the plaintiff, as there must always be an underlying constitutional 9 violation. Conspiracy may however, enlarge the pool of responsible defendants by demonstrating 10 their causal connections to the violation; the fact of the conspiracy may make a party liable for the 11 unconstitutional actions of the party with whom he has conspired.” Lacey v. Maricopa Cnty., 693 12 F.3d 896, 935 (9th Cir. 2012) (internal citations omitted). 13 To establish a cognizable claim for conspiracy under 42 U.S.C. § 1983, a plaintiff must 14 allege (1) the existence of an express or implied agreement among the defendants to deprive the 15 plaintiff of his constitutional rights, and (2) an actual deprivation of those rights resulting from 16 that agreement. Avalos v. Baca, 596 F.3d 583, 592 (9th Cir. 2010). To establish a conspiracy, 17 Plaintiff allege specific facts showing “an agreement or meeting of the minds to violate 18 constitutional rights. To be liable, each participant in the conspiracy need not know the exact 19 details of the plan, but each participant must at least share the common objective of the 20 conspiracy.” Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002) (internal citations and quotation 21 marks omitted). The mere conclusory statement that defendants “conspired” together is not 22 sufficient to state a cognizable claim. Woodrum v. Woodward Cnty., 866 F.2d 1121, 1126 (9th 23 Cir. 1989). 24 Here, Plaintiff asserts that Defendants Marroquin, Bernal, and Heifner conspired to 25 retaliate against Plaintiff by sending a letter making a frivolous claim about Plaintiff’s sentence to 26 Plaintiff’s sentencing court after Plaintiff filed an administrative appeal against Defendant 27 Marroquin. However, Plaintiff has failed to sufficiently allege that he suffered an actual 28 deprivation of his constitutional rights resulting from any agreement among Defendants 1 Marroquin, Bernal, and Heifner because Plaintiff’s allegations regarding signing and sending the 2 letter about Plaintiff’s sentence to Plaintiff’s sentencing court are insufficient to state a claim for 3 retaliation or any other deprivation of his constitutional rights. See Cassettari v. Cnty. of Nevada, 4 824 F.2d 735, 739 (9th Cir. 1987) (“The insufficiency of these allegations to support a section 5 1983 violation precludes a conspiracy claim predicated upon the same allegations.”); see also 6 Landrigan v. City of Warwick, 628 F.2d 736, 742 (1st Cir. 1980) (“In order to state an adequate 7 claim for [conspiracy] under section 1983, ‘plaintiff must allege … both a conspiracy and an 8 actual deprivation of rights; mere proof of a conspiracy is insufficient to establish a section 1983 9 [conspiracy] claim.’”). Therefore, Plaintiff has not alleged a cognizable conspiracy claim against 10 Defendants Marroquin, Bernal, and Heifner. 11 V. Conclusion and Recommendation 12 Plaintiff’s first amended complaint states a cognizable claim for retaliation in violation of 13 the First Amendment against Defendant Marroquin in her individual capacity, but fails to state 14 any other cognizable claims. 15 Based on the foregoing, the Court HEREBY ORDERS the Clerk of the Court to randomly 16 assign a Fresno District Judge to this action. 17 Further, it is HEREBY RECOMMENDED that: 18 1. This action proceed on Plaintiff’s first amended complaint, filed on October 7, 19 2019, (ECF No. 9), against Defendant Marroquin, in her individual capacity, for 20 retaliation in violation of the First Amendment; and 21 2. All other claims and defendants be dismissed from the action for failure to state a 22 cognizable claim for relief. 23 *** 24 These findings and recommendations will be submitted to the United States District Judge 25 assigned to this action as required by 28 U.S.C. § 636(b)(l). Within fourteen (14) days after 26 being served with these findings and recommendations, Plaintiff may file written objections with 27 the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 28 Recommendations.” Plaintiff is advised that failure to file objections within the specified time 1 may result in the waiver of the “right to challenge the magistrate’s factual findings” on appeal. 2 Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 3 1391, 1394 (9th Cir. 1991)). 4 IT IS SO ORDERED. 5
6 Dated: January 9, 2020 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 7
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