1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 REGINALD WHATLEY, CDCR #AG- Case No.: 18cv2761-CAB-BGS 2464, 12 ORDER DENYING DEFENDANTS’ Plaintiff, 13 MOTION TO DISMISS v. PLAINTIFF’S SECOND AMENDED 14 COMPLAINT [Doc. No. 50] G. VALDOVINOS, Correctional Officer; 15 D. PARAMO, Warden; ROMERO, 16 Defendants. 17
18 On June 30, 2020, Defendants L. Romero and G. Valdovinos (“Defendants”) filed 19 a Motion to Dismiss Plaintiff’s Second Amended Complaint. [Doc. No. 50.] On July 13, 20 2020, Plaintiff Reginald Whatley (“Plaintiff”) filed an opposition to the motion. [Doc. 21 No. 52.] No reply was filed. For the reasons set forth below, the motion to dismiss is 22 DENIED. 23 FACTUAL AND PROCEDURAL BACKGROUND 24 Plaintiff, a California prisoner proceeding pro se, filed a complaint under 42 U.S.C. 25 §1983 on December 8, 2018. [Doc. No. 1.] This Court screened and dismissed the 26 lawsuit for Plaintiff’s failure to state a claim and failure to follow court orders. [Doc. 27 28 1 Nos. 7, 21, 25, 32, and 38.] On March 25, 2020, Plaintiff filed the Second Amended 2 Complaint (SAC), which is now the operative pleading. [Doc. No. 42.] 3 In the SAC, Plaintiff alleges that Defendants G. Valdovinos and L. Romero, 4 correctional officers at the Richard J. Donovan Correctional Facility, violated his rights. 5 [Doc. No. 42, at 3-6.] Plaintiff alleges that Valdovinos violated the First and Eighth 6 Amendments by labelling plaintiff a “snitch” in retaliation for his complaints, which 7 caused Plaintiff to be attacked by another inmate. [Doc. No. 42, at 3-4.] Plaintiff alleges 8 that Romero violated Plaintiff’s rights by reading Plaintiff’s confidential legal mail and 9 conducting a retaliatory cell search against Plaintiff. [Doc. No. 42, at 5.] Romero now 10 moves to dismiss the retaliatory cell search claim. 11 LEGAL STANDARD 12 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to 13 state a claim tests the legal sufficiency of a plaintiff’s claim. Navarro v. Block, 250 F.3d 14 729, 732 (9th Cir. 2001). When considering the motion, the court must accept as true all 15 well-pleaded factual allegations in the complaint. Bell Atlantic Corp. v. Twombly, 556 16 U.S. 544, 555 (2007). The court need not accept as true legal conclusions cast as factual 17 allegations. Id.; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[t]hreadbare recitals of the 18 elements of a cause of action, supported by mere conclusory statements” are insufficient). 19 A complaint must “state a claim for relief that is plausible on its face.” Twombly, 20 550 U.S. at 570. To survive a motion to dismiss, a complaint must include non- 21 conclusory factual content. Id. at 555; Iqbal, 556 U.S. at 679. The facts and the 22 reasonable inferences drawn from those facts must show a plausible—not just a 23 possible—claim for relief. Twombly, 550 U.S. at 556; Iqbal, 557 U.S. at 679; Moss v. 24 U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The focus is on the complaint, as 25 opposed to any new facts alleged in, for example, the opposition to a defendant’s motion 26 to dismiss. See Schneider v. California Dep't of Corrections, 151 F.3d 1194, 1197 n.1 27 (9th Cir. 1998), reversed and remanded on other grounds as stated in 345 F.3d 716 (9th 28 Cir. 2003). “Determining whether a complaint states a plausible claim for relief [is] ... a 1 context-specific task that requires the reviewing court to draw on its judicial experience 2 and common sense.” Iqbal, 557 U.S. at 679. The “mere possibility of misconduct” or 3 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 4 this plausibility standard. Id.; see also Moss, 572 F.3d at 969. 5 In addition, factual allegations asserted by pro se petitioners, “however inartfully 6 pleaded,” are held “to less stringent standards than formal pleadings drafted by lawyers.” 7 Haines v. Kerner, 404 U.S. 519, 520 (1972). Thus, where a plaintiff appears pro se in a 8 civil rights case, the court “must construe the pleadings liberally and must afford plaintiff 9 the benefit of any doubt.” See Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 10 623 (9th Cir. 1988). 11 DISCUSSION 12 Defendant Romero moves to dismiss the claim of retaliation against him on the 13 grounds that Plaintiff fails to allege that: 1) he engaged in protected activity; and 2) there 14 was a causal connection between the adverse action and the protected activity. [Doc. No. 15 50 at 4-6.] 16 A. Protected Activity. 17 In the prison context, an inmate must establish five basic elements to make a viable 18 First Amendment retaliation claim: (1) an assertion that a state actor took some adverse 19 action against an inmate (2) because of (3) that prisoner’s protected conduct, and that 20 such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the 21 action did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 22 F.3d 559, 567-68 (9th Cir. 2005). 23 For a retaliation claim to prevail, a plaintiff must demonstrate, among other things, 24 that they engaged in protected conduct. See Watison v. Carter, 668 F.3d 1108, 1114 (9th 25 Cir. 2012). It is well established precedent that filing grievances or commencing a lawsuit 26 is considered protected conduct under the First Amendment. See Entler v. Gregoire, 872 27 F.3d 1031, 1039 (9th Cir. 2017). 28 1 Here, Defendant cites to Bell v Hill, No. CIV S-10-0850-CMK-P, 2011 WL 2 4736293 (E.D. Cal. Oct. 5, 2011) to contend that Plaintiff’s verbal complaints were not 3 protected conduct. Specifically, Defendants contend that Plaintiff did not file a formal 4 complaint or grievance, and Plaintiff’s statement to Romero that he was going to sue him 5 for reading his mail and sharing the contents with another officer do not constitute 6 protected activity. The Court disagrees and finds that protected conduct under Ninth 7 Circuit case law is not so restrictive. 8 In Entler v. Gregoire, 872 F.3d 1031 (9th Cir. 2017), the Ninth Circuit found that 9 the plaintiff’s written threat to file a civil lawsuit was protected conduct under the First 10 Amendment. Entler, 872 F.3d at 1039-40. In rejecting the district court’s dismissal of 11 Plaintiff’s complaint, the court wrote: 12 The dichotomy that the district court drew between formal and informal grievances has no constitutional underpinning; nor does the distinction 13 between a threat to initiate litigation and the litigation. To the contrary, 14 “[t]he applicability of the constitutional right to redress of grievances does not hinge on the label the prison places on a particular complaint,” Brodheim 15 v. Cry, 584 F.3d 1262, 1267 n.4 (9th Cir. 2009), and embraces threats to sue, 16 Jones v. Williams, 791 F.3d 1023, 1035–36 (9th Cir. 2015). Id. at 1039. 17
18 Consistent with these principles, courts in this Circuit have repeatedly found 19 protected conduct where a plaintiff makes a verbal threat to file a suit or grievance or 20 even request a grievance form. See e.g. Gathrite v. Wilson, No. 3:19-cv-1852-JAH-NLS, 21 2020 WL 4201668, at *5-7 (S.D. Cal.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 REGINALD WHATLEY, CDCR #AG- Case No.: 18cv2761-CAB-BGS 2464, 12 ORDER DENYING DEFENDANTS’ Plaintiff, 13 MOTION TO DISMISS v. PLAINTIFF’S SECOND AMENDED 14 COMPLAINT [Doc. No. 50] G. VALDOVINOS, Correctional Officer; 15 D. PARAMO, Warden; ROMERO, 16 Defendants. 17
18 On June 30, 2020, Defendants L. Romero and G. Valdovinos (“Defendants”) filed 19 a Motion to Dismiss Plaintiff’s Second Amended Complaint. [Doc. No. 50.] On July 13, 20 2020, Plaintiff Reginald Whatley (“Plaintiff”) filed an opposition to the motion. [Doc. 21 No. 52.] No reply was filed. For the reasons set forth below, the motion to dismiss is 22 DENIED. 23 FACTUAL AND PROCEDURAL BACKGROUND 24 Plaintiff, a California prisoner proceeding pro se, filed a complaint under 42 U.S.C. 25 §1983 on December 8, 2018. [Doc. No. 1.] This Court screened and dismissed the 26 lawsuit for Plaintiff’s failure to state a claim and failure to follow court orders. [Doc. 27 28 1 Nos. 7, 21, 25, 32, and 38.] On March 25, 2020, Plaintiff filed the Second Amended 2 Complaint (SAC), which is now the operative pleading. [Doc. No. 42.] 3 In the SAC, Plaintiff alleges that Defendants G. Valdovinos and L. Romero, 4 correctional officers at the Richard J. Donovan Correctional Facility, violated his rights. 5 [Doc. No. 42, at 3-6.] Plaintiff alleges that Valdovinos violated the First and Eighth 6 Amendments by labelling plaintiff a “snitch” in retaliation for his complaints, which 7 caused Plaintiff to be attacked by another inmate. [Doc. No. 42, at 3-4.] Plaintiff alleges 8 that Romero violated Plaintiff’s rights by reading Plaintiff’s confidential legal mail and 9 conducting a retaliatory cell search against Plaintiff. [Doc. No. 42, at 5.] Romero now 10 moves to dismiss the retaliatory cell search claim. 11 LEGAL STANDARD 12 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to 13 state a claim tests the legal sufficiency of a plaintiff’s claim. Navarro v. Block, 250 F.3d 14 729, 732 (9th Cir. 2001). When considering the motion, the court must accept as true all 15 well-pleaded factual allegations in the complaint. Bell Atlantic Corp. v. Twombly, 556 16 U.S. 544, 555 (2007). The court need not accept as true legal conclusions cast as factual 17 allegations. Id.; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[t]hreadbare recitals of the 18 elements of a cause of action, supported by mere conclusory statements” are insufficient). 19 A complaint must “state a claim for relief that is plausible on its face.” Twombly, 20 550 U.S. at 570. To survive a motion to dismiss, a complaint must include non- 21 conclusory factual content. Id. at 555; Iqbal, 556 U.S. at 679. The facts and the 22 reasonable inferences drawn from those facts must show a plausible—not just a 23 possible—claim for relief. Twombly, 550 U.S. at 556; Iqbal, 557 U.S. at 679; Moss v. 24 U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The focus is on the complaint, as 25 opposed to any new facts alleged in, for example, the opposition to a defendant’s motion 26 to dismiss. See Schneider v. California Dep't of Corrections, 151 F.3d 1194, 1197 n.1 27 (9th Cir. 1998), reversed and remanded on other grounds as stated in 345 F.3d 716 (9th 28 Cir. 2003). “Determining whether a complaint states a plausible claim for relief [is] ... a 1 context-specific task that requires the reviewing court to draw on its judicial experience 2 and common sense.” Iqbal, 557 U.S. at 679. The “mere possibility of misconduct” or 3 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 4 this plausibility standard. Id.; see also Moss, 572 F.3d at 969. 5 In addition, factual allegations asserted by pro se petitioners, “however inartfully 6 pleaded,” are held “to less stringent standards than formal pleadings drafted by lawyers.” 7 Haines v. Kerner, 404 U.S. 519, 520 (1972). Thus, where a plaintiff appears pro se in a 8 civil rights case, the court “must construe the pleadings liberally and must afford plaintiff 9 the benefit of any doubt.” See Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 10 623 (9th Cir. 1988). 11 DISCUSSION 12 Defendant Romero moves to dismiss the claim of retaliation against him on the 13 grounds that Plaintiff fails to allege that: 1) he engaged in protected activity; and 2) there 14 was a causal connection between the adverse action and the protected activity. [Doc. No. 15 50 at 4-6.] 16 A. Protected Activity. 17 In the prison context, an inmate must establish five basic elements to make a viable 18 First Amendment retaliation claim: (1) an assertion that a state actor took some adverse 19 action against an inmate (2) because of (3) that prisoner’s protected conduct, and that 20 such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the 21 action did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 22 F.3d 559, 567-68 (9th Cir. 2005). 23 For a retaliation claim to prevail, a plaintiff must demonstrate, among other things, 24 that they engaged in protected conduct. See Watison v. Carter, 668 F.3d 1108, 1114 (9th 25 Cir. 2012). It is well established precedent that filing grievances or commencing a lawsuit 26 is considered protected conduct under the First Amendment. See Entler v. Gregoire, 872 27 F.3d 1031, 1039 (9th Cir. 2017). 28 1 Here, Defendant cites to Bell v Hill, No. CIV S-10-0850-CMK-P, 2011 WL 2 4736293 (E.D. Cal. Oct. 5, 2011) to contend that Plaintiff’s verbal complaints were not 3 protected conduct. Specifically, Defendants contend that Plaintiff did not file a formal 4 complaint or grievance, and Plaintiff’s statement to Romero that he was going to sue him 5 for reading his mail and sharing the contents with another officer do not constitute 6 protected activity. The Court disagrees and finds that protected conduct under Ninth 7 Circuit case law is not so restrictive. 8 In Entler v. Gregoire, 872 F.3d 1031 (9th Cir. 2017), the Ninth Circuit found that 9 the plaintiff’s written threat to file a civil lawsuit was protected conduct under the First 10 Amendment. Entler, 872 F.3d at 1039-40. In rejecting the district court’s dismissal of 11 Plaintiff’s complaint, the court wrote: 12 The dichotomy that the district court drew between formal and informal grievances has no constitutional underpinning; nor does the distinction 13 between a threat to initiate litigation and the litigation. To the contrary, 14 “[t]he applicability of the constitutional right to redress of grievances does not hinge on the label the prison places on a particular complaint,” Brodheim 15 v. Cry, 584 F.3d 1262, 1267 n.4 (9th Cir. 2009), and embraces threats to sue, 16 Jones v. Williams, 791 F.3d 1023, 1035–36 (9th Cir. 2015). Id. at 1039. 17
18 Consistent with these principles, courts in this Circuit have repeatedly found 19 protected conduct where a plaintiff makes a verbal threat to file a suit or grievance or 20 even request a grievance form. See e.g. Gathrite v. Wilson, No. 3:19-cv-1852-JAH-NLS, 21 2020 WL 4201668, at *5-7 (S.D. Cal. July 22, 2020)(finding Plaintiff’s submission of 22 grievances through health care services request forms constitutes protected conduct); 23 Loftis v. Montes, No. 2:18-cv-4769-JFW-GJS, 2020 WL 1290842, at *4 (C.D. Cal. Feb. 24 11, 2020), report and recommendation adopted, No. 2:18-cv-4769-JFW-GJS, 2020 WL 25 1289170 (C.D. Cal. Mar. 18, 2020) (finding verbal threats to speak to the Sergeant and/or 26 threats to file a complaint protected conduct); Smith v. Gaffney, No. CV 18-4366-CJC 27 (PLA), 2020 WL 2083016, at *4 (C.D. Cal. Jan. 7, 2020) (finding an inmate’s request for 28 a grievance form protected conduct); Irvin v. Roldan, No. CV 19-1418-AG (KK), 2019 1 || WL 8105897, at *3 (C.D. Cal. Dec. 23, 2019) (finding threats to file a grievance 2 || protected conduct). 3 Here, Plaintiff alleges Defendant Romero opened his legal mail “then yelled up to 4 ||the Tower cop G. Valdovinos ‘Hey Valdovinos Whatley suing you he trying to take your 5 || boat.’” Plaintiff then alleges he told Romero “I’m going to sue you for reading my legal 6 || mail and for telling the officer I’m suing what was [in] my legal mail.” [Doc. No. 42 at 7 |{5.] Under Entler, Plaintiff's alleged threat to sue Romero sufficiently constitutes 8 || protected conduct. 872 F.3d at 1039-40. 9 B. Causal Connection. 10 Defendant argues that Plaintiff does not sufficiently allege a causal connection 11 between the adverse action (unwarranted cell search) and the protected conduct (threat to 12 ||sue). However, Plaintiff alleges that after he threatened to sue Romero, Romero said 13 “Don’t fuck with me,” then a few days later conducted an allegedly unwarranted search 14 || of Plaintiff's property (but not his cellmates’ property). The allegation of an angry 15 ||response by Romero to Plaintiff's threat to sue, followed by a search that singled out 16 || Plaintiff's property, sufficiently alleges a causal connection between the adverse action 17 || and the protected conduct. 18 CONCLUSION 19 For the reasons set forth above, the motion to dismiss is DENIED. Defendants 20 || shall ANSWER the SAC by September 10, 2020. 21 IT IS SO ORDERED. 22 ||Dated: August 20, 2020 € □ 23 Hon. Cathy Ann Bencivengo 24 United States District Judge 25 26 27 28