(PC) Howell v. Conrad

• Court: District Court, E.D. California
• Decided: April 14, 2020
• Docket: 2:19-cv-02551
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KAREEM J. HOWELL, No. 2:19-cv-2551 DB P 12 Plaintiff, 13 v. ORDER 14 CONRAD, et al., 15 Defendants. 16 17 Plaintiff is a state inmate proceeding pro se with a civil rights action pursuant to 42 U.S.C. 18 § 1983. Plaintiff claims that officers refused to give him his property in retaliation for filing staff 19 complaints and civil suits. Presently before the court is plaintiff’s motion to proceed in forma 20 pauperis (ECF No. 2) and his complaint for screening (ECF No. 1). For the reasons set forth 21 below, the court will grant plaintiff the opportunity to proceed with the complaint as screened or 22 to file an amended complaint. 23 IN FORMA PAUPERIS 24 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 25 1915(a). (ECF No. 2.) Accordingly, the request to proceed in forma pauperis will be granted. 26 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 27 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 28 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 1 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 2 forward it to the Clerk of the court. Thereafter, plaintiff will be obligated for monthly payments 3 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 4 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 5 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 6 1915(b)(2). 7 SCREENING 8 I. Legal Standards 9 The court is required to screen complaints brought by prisoners seeking relief against a 10 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 11 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 12 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 13 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 14 U.S.C. § 1915A(b)(1) & (2). 15 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 16 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 17 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 18 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 19 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 20 pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227. 21 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 22 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 23 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 24 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 25 However, in order to survive dismissal for failure to state a claim a complaint must 26 contain more than “a formulaic recitation of the elements of a cause of action;” it must contain 27 factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 28 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the 1 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 2 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all 3 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 4 The Civil Rights Act under which this action was filed provides as follows: 5 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 6 of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, 7 or other proper proceeding for redress. 8 42 U.S.C. § 1983. Here, the defendants must act under color of federal law. Bivens, 403 U.S. at 9 389. The statute requires that there be an actual connection or link between the 10 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 11 Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 12 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the 13 meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or 14 omits to perform an act which he is legally required to do that causes the deprivation of which 15 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 16 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 17 their employees under a theory of respondeat superior and, therefore, when a named defendant 18 holds a supervisorial position, the causal link between him and the claimed constitutional 19 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 20 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations 21 concerning the involvement of official personnel in civil rights violations are not sufficient. See 22 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 23 II. Allegations in the Complaint 24 The events giving rise to the claim occurred while plaintiff was housed at California State 25 Prison, Sacramento (“CSP-SAC”). (ECF No. 1 at 1.) Plaintiff has named the following 26 defendants: (1) Konrad, facility captain; (2) Baker, correctional lieutenant; (3) Nelson, 27 correctional sergeant; (4) Tillo, correctional legal officer; and (5) D. Baughman, warden at CSP- 28 SAC. (Id.) 1 Plaintiff states that he was housed at CSP-SAC in March 2019 on out-to-court status. 2 During his stay he filed several staff complaints and civil rights suits against prison officials. (Id. 3 at 4-5.) On December 4, 2019, he was told that he was being transferred from California State 4 Prison, Corcoran (“CSP-COR”) to CSP-SAC. (Id. at 5.) 5 On December 11, 2019, plaintiff arrived at CSP-SAC with his legal and personal property. 6 Upon arriving, he spoke to a correctional sergeant and informed him he had several pending 7 criminal and civil actions. He requested that his property be searched in front of him and 8 transported with plaintiff when he was escorted to his housing unit. The sergeant agreed that 9 plaintiff’s request was appropriate because plaintiff had ongoing court proceedings with deadlines 10 approaching. 11 Plaintiff overheard the sergeant speak to facility captain, Konrad. (Id. at 6.) Plaintiff 12 heard Konrad state “[plaintiff] has nothing coming” because “he sued captain Cross and them the 13 last time he was down here . . . fuck him . . . I don’t care what kind of court dates he has. Keep his 14 personal property there. All of it.” The sergeant then told plaintiff that he had spoken to Konrad 15 and plaintiff would not be permitted to take his property to his housing unit. 16 On December 12, 2019, plaintiff spoke to Nelson, the living unit supervisor, and 17 explained that he needed his legal and personal property because he had several pending cases. 18 (Id. at 7.) Nelson stated, “I already know about your legal situation and I’ve spoken to Capt[ain] 19 Konrad. We will ultimately decide as a team if we are going to accommodate you with your legal 20 and personal shit . . . my understanding is the last time you were down here you sued everybody. 21 Now you[’re] back and our expectation is to get even.” Plaintiff asked Nelson to confirm that his 22 property was being withheld in retaliation for filing staff complaints and lawsuits. Nelson told 23 plaintiff he could take it however he wanted, but he did have “shit coming.” 24 Plaintiff then requested to speak with Baker, the living unit lieutenant. (Id. at 8.) A 25 correctional officer told plaintiff she has spoken directly with Baker who advised her that he 26 knew about plaintiff’s issues and told her to tell plaintiff he agreed with Konrad and Nelson that 27 plaintiff is on “shit status” which means plaintiff “have nothing coming.” 28 //// 1 On December 13, 2019, Konrad came to plaintiff’s cell. The visit was recorded on video. 2 Konrad informed plaintiff that he would have his legal property brought to the housing unit and 3 that plaintiff would be moved to a different housing unit. Plaintiff alleges he was to be moved to 4 the housing unit with correctional staff plaintiff had sued so that they could retaliate against 5 plaintiff. Konrad also openly challenged plaintiff to physically assault officers, break out of his 6 cell, set a fire, or hold staff handcuffs so that Konrad could order his officers to assault plaintiff. 7 (Id. at 9.) Plaintiff rejected the challenge and verbally requested an inmate grievance form. 8 Konrad told plaintiff he would not be getting anything and asked plaintiff if he was going to sue 9 him like plaintiff sued Cross and “everybody else.” Plaintiff alleges that Konrad’s refusal to give 10 plaintiff a grievance form rendered state remedies unavailable and ineffective. 11 On December 13, 2009, plaintiff requested the assistance of legal officer Tillo. Tillo sent 12 a verbal message back to plaintiff stating he “wanted no part in plaintiff[’s] ongoing problems” 13 and refused to help plaintiff receive his legal property. 14 Plaintiff alleges that on November 28, 2019 he sent a “legal notice” to warden Baughman. 15 The notice informed Baughman that plaintiff was going to be transferred to CSP-SAC and 16 plaintiff was concerned officers there would retaliate against him. (Id. at 10.) He claims that 17 even though Baughman had notice he failed to ensure that staff at CSP-SAC refrained from 18 retaliating against plaintiff. 19 III. Does Plaintiff State a Claim under § 1983? 20 A. First Amendment 21 1. Legal Standards 22 “Of fundamental import to prisoners are their First Amendment rights to file prison 23 grievances, and to pursue civil rights litigation in the courts. Without those bedrock constitutional 24 guarantees, inmates would be left with no viable mechanism to remedy prison injustices. And 25 because purely retaliatory actions taken against a prisoner for having exercised those rights 26 necessarily undermine those protections, such actions violate the Constitution quite apart from 27 any underlying misconduct they are designed to shield.” Rhodes v. Robinson, 408 F.3d 559, 567 28 (citations, internal quotations and footnote omitted) (9th Cir. 2005). 1 “Within the prison context, a viable claim of First Amendment retaliation entails five 2 basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) 3 because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 4 exercise of his first amendment rights, and (5) the action did not reasonably advance a legitimate 5 correctional goal.” Id. at 567-68. A plaintiff who fails to allege a chilling effect may still state a 6 claim if he alleges that he suffered some other harm. Id. at 568, n.11; see also Brodheim v. Cry, 7 584 F.3d 1262, 1269-71 (9th Cir. 2009). 8 The plaintiff must also plead facts which suggest an absence of legitimate correctional 9 goals for the conduct he contends was retaliatory. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 10 1995). 11 2. Analysis 12 Plaintiff has stated facts showing that defendants Konrad, Baker, Nelson, and Tillo took 13 adverse action, withholding his property, because plaintiff engaged in protected conduct, filing 14 staff complaints and civil suits. Accordingly, he has stated a cognizable first amendment claim 15 against these defendants. 16 Plaintiff also claims that Warden Baughman is liable for the actions of the other prison 17 officials because plaintiff sent him a letter informing Baughman he was concerned about 18 retaliation based on his pending litigation against officers at CSP-SAC. He also claims that 19 Baughman failed to prevent his subordinates from retaliating against plaintiff. 20 Under § 1983, a plaintiff must demonstrate that each defendant personally participated in 21 the deprivation of rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). A supervisor 22 may be held liable only if he or she “participated in or directed the violations, or knew of the 23 violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 24 Plaintiff’s notice to Baughman before the events giving rise to the claim is not sufficient to show 25 that he knew the other defendants allegedly violated plaintiff’s rights once he arrived at CSP- 26 SAC. 27 Accordingly, the court finds that allegations in the complaint are not sufficient to show 28 that Baughman was involved in the alleged rights violations. 1 B. Access to the Courts 2 Plaintiff claims that his Eighth Amendment rights were violated because prison officials 3 interfered with his right of access to the courts. The Eighth Amendment prohibits the imposition 4 of cruel and unusual punishment. U.S. Const. amend. VIII. The right of access to the courts is 5 derived from the First Amendment. Knight v. Nimrod, 14 Fed.Appx. 921, 922 (9th Cir. 2001). 6 Accordingly, the court will analyze this claim as violation of plaintiff’s rights under the First 7 Amendment rather than under the Eighth Amendment. 8 1. Legal Standards 9 Plaintiff has a constitutional right of access to the courts, and prison officials may not 10 actively interfere with his right to litigate. Silva v. Di Vittorio, 658 F.3d 1090, 1101-02 (9th Cir. 11 2001) overruled on other grounds as stated by Richey v. Dahne, 807 F.3d 1202, 1209 n.6 (9th Cir. 12 2015). The right is limited to bringing complaints to federal court in direct criminal appeals, 13 habeas petitions, and civil rights actions. Lewis v. Casey, 518 U.S. 343, 354 (1996). It is not a 14 right to discover such claims or to litigate them effectively once filed with a court. Id. at 354-55. 15 A plaintiff must show he suffered an “actual injury,” i.e. prejudice with respect to contemplated 16 or existing litigation, such as the inability to meet a filing deadline or present a non-frivolous 17 claim. Id. at 348-49. An “actual injury” is one that hinders the plaintiff’s ability to pursue a legal 18 claim. Id. at 351. 19 2. Analysis 20 Here, plaintiff has alleged that he was prevented from accessing his legal property while 21 he had pending civil cases. However, he has not alleged facts showing that he suffered an “actual 22 injury.” Accordingly, the court finds that he has failed to allege a cognizable access to the courts 23 claim. In any amended complaint, plaintiff must allege facts showing that he suffered an actual 24 injury to some existing litigation. 25 Plaintiff further alleged that Konrad denied plaintiff’s request for a prison grievance form. 26 (ECF No. 1 at 9.) “The right of meaningful access to the courts extends to established prison 27 grievance procedures.” Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995) (overruled on other 28 grounds by Shaw v. Murphy, 532 U.S. 223, 230 n.2 (2001)); see also Valandingham v. 1 Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989). The court finds that the allegation that Konrad 2 refused to give plaintiff a grievance form is minimally sufficient to state a claim. 3 However, in finding that plaintiff has stated a potential claim, the court makes no 4 determination on whether Konrad’s refusal made administrative remedies effectively unavailable. 5 AMENDING THE COMPLAINT 6 As stated above, the court has determined that the complaint states a claim against 7 Konrad, Baker, Nelson, and Tillo, but fails to state a claim against Baughman. Accordingly, 8 plaintiff will be given the opportunity to proceed with the complaint as screened or amend the 9 complaint. Should plaintiff choose to file an amended complaint, he must demonstrate how the 10 conditions about which he complains resulted in a deprivation of his constitutional rights. Rizzo, 11 423 U.S. at 370-71. Also, the complaint must allege in specific terms how each named defendant 12 is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). There can 13 be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection 14 between a defendant’s action and the claimed deprivation. Id.; Johnson v. Duffy, 588 F.2d 740, 15 743 (9th Cir. 1978). Furthermore, “[v]ague and conclusory allegations of official participation in 16 civil rights violations are not sufficient.” Ivey, 673 F.2d at 268. 17 Plaintiff is advised that in an amended complaint he must clearly identify each defendant 18 and the action that defendant took that violated his constitutional rights. The court is not required 19 to review exhibits to determine what plaintiff’s charging allegations are as to each named 20 defendant. If plaintiff wishes to add a claim, he must include it in the body of the complaint. The 21 charging allegations must be set forth in the amended complaint so defendants have fair notice of 22 the claims plaintiff is presenting. That said, plaintiff need not provide every detailed fact in 23 support of his claims. Rather, plaintiff should provide a short, plain statement of each claim. See 24 Fed. R. Civ. P. 8(a). 25 Any amended complaint must show the federal court has jurisdiction, the action is brought 26 in the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It must 27 contain a request for particular relief. Plaintiff must identify as a defendant only persons who 28 personally participated in a substantial way in depriving plaintiff of a federal constitutional right. 1 Johnson, 588 F.2d at 743 (a person subjects another to the deprivation of a constitutional right if 2 he does an act, participates in another’s act or omits to perform an act he is legally required to do 3 that causes the alleged deprivation). 4 In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed. 5 R. Civ. P 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed. 6 R. Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or 7 occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b). 8 The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d 9 1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any 10 heightened pleading standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P. 11 84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be 12 set forth in short and plain terms, simply, concisely, and directly. See Swierkiewicz v. Sorema 13 N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified pleading system, 14 which was adopted to focus litigation on the merits of a claim.”); Fed. R. Civ. P. 8. 15 Plaintiff is informed that the court cannot refer to a prior pleading in order to make his 16 amended complaint complete. An amended complaint must be complete in itself without 17 reference to any prior pleading. E.D. Cal. R. 220. Once plaintiff files an amended complaint, all 18 prior pleadings are superseded. Therefore, in an amended complaint, as in an original complaint, 19 each claim and the involvement of each defendant must be sufficiently alleged. 20 By signing an amended complaint, plaintiff certifies he has made reasonable inquiry and 21 has evidentiary support for his allegations, and for violation of this rule the court may impose 22 sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11. 23 CONCLUSION 24 For the reasons set forth above, IT IS HEREBY ORDERED that: 25 1. Plaintiff’s motion for leave to proceed in forma pauperis (ECF No. 18) is granted. 26 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 27 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 28 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order 1 to the Director of the California Department of Corrections and Rehabilitation filed 2 concurrently herewith. 3 3. Plaintiff's complaint (ECF No. 1) states a potentially cognizable claim against 4 defendants Konrad, Baker, Nelson, and Tillo as set forth in Section III above. The 5 complaint fails to state a claim as to defendant Baughman. Accordingly, plaintiff will 6 be given the option to proceed with the complaint as screened or amend the complaint. 7 4, Within sixty (60) days of the date of this order, plaintiff shall fill out and return the 8 attached form indicating how he would like to proceed in this action. 9 5. Plaintiff is warned that his failure to comply with this order will result in a 10 recommendation that this action be dismissed. 11 | Dated: April 13, 2020 12 13 14 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 15 16 DB:12 17 || DB:1/Orders/Prisoner/Civil Rights/howe2551.scn 18 19 20 21 22 23 24 25 26 27 28 10

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6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KAREEM J. HOWELL, No. 2:19-cv-2551 DB P 12 Plaintiff, 13 v. PLAINTIFF’S NOTICE ON HOW TO PROCEED 14 CONRAD, et al., 15 Defendants. 16 Check one: 17 _____ Plaintiff wants to proceed immediately on his claims against defendants Konrad, Baker, 18 Nelson, and Tillo. Plaintiff understands that by going forward without amending the 19 complaint he is voluntarily dismissing all other claims and defendants. 20

21 _____ Plaintiff wants to amend the complaint. 22

23 DATED:_______________________ 24

25 Kareem J. Howell 26 Plaintiff pro se

27 28