(PC) Witkin v. Cook

Opinion

1 2 3 4 5 6 7 10 11 MICHAEL WITKIN, No. 2:20-cv-2355-DJC-DB P 12 Plaintiff, 13 v. ORDER 14 B. COOK, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant 18 to 42 U.S.C. § 1983. Plaintiff claims defendants retaliated against him in violation of 19 his First Amendment rights. The matter was referred to a United States Magistrate 20 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On April 4, 2023, the Magistrate Judge filed findings and recommendations 22 herein which were served on all parties and which contained notice to all parties that 23 any objections to the findings and recommendations were to be filed within twenty 24 days. (ECF No. 47.) Neither party has filed objections to the findings and 25 recommendations. 26 The Court has reviewed the file and finds the findings and recommendations to 27 be supported by the record and by the magistrate judge’s analysis. The case cited by 28 the Magistrate Judge confirm that “California courts have consistently found that an 1 | allegedly false Rules Violation Report, issued pursuant to § 3312(a)(3), can rise to the 2 | level of an adverse action for a retaliation claim.” Vallery v. Botkin, No. 2:20-CV-0767- 3 | TLN-KJN, 2020 WL 7425343, at *4(E.D. Cal. Dec. 18, 2020), report and 4 | recommendation adopted, 2021 WL 843614 (E.D. Cal. Mar. 5, 2021). It is true that a 5 | Counseling Only RVR is not considered an adverse action. Because Plaintiff alleges 6 | that he was issued a RVR (as opposed to a Counseling Only RVR) as retaliation for the 7 | exercise of his First Amendment rights, he has sufficiently pled an adverse action. The 8 || adverse action is not remedied by a third party reducing the RVR to a Counseling Only 9 || RVR because it is the Defendant's actions and the chilling effect of those actions that 10 | are being challenged. See Hines v. Gomez, 108 F.3d 265, 269 (9th Cir. 1997) (finding 11 | that it was the “retaliatory accusation[]” and not the actual result (i.e. “the additional 12 | confinement or the deprivation of the television”) that constituted an injury). 13 Accordingly, IT IS HEREBY ORDERED that: 14 1. The findings and recommendations filed April 4, 2023, are adopted in full; 15 | and 16 2. Defendants’ motion to dismiss (ECF No. 43) is denied. 17 18 20 | Dated: _ August 18, 2023 Bed Obeat Hon. Daniel labretta 21 UNITED STATES DISTRICT JUDGE 22 23 24 25 26 57 /witk2355.803