Gray v. Hernandez

• Citation: 651 F.Supp.2d 1167
• Decision Date: 27 August 2009
• Docket Number: Case No. 08 CV 1147 JM (AJB).
• Parties: Gregory Lee GRAY, Plaintiff, v. Robert HERNANDEZ et al., Defendants.
• Court: U.S. District Court — Southern District of California

Page 1167

651 F.Supp.2d 1167

Gregory Lee GRAY, Plaintiff, v. Robert HERNANDEZ et al., Defendants.

Case No. 08 CV 1147 JM (AJB).

United States District Court, S.D. California.

August 27, 2009.

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Gregory Lee Gray, Susanville, CA, pro se.

Attorney General, State of California Office of the Attorney General, San Diego, CA, Suzanne Antley, Attorneys Generals Office, Los Angeles, CA, for Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATIONS

Doc. Nos. 14 and 26

JEFFREY T. MILLER, District Judge.

Plaintiff Gregory Lee Gray ("Plaintiff"), a state prisoner appearing pro se and in forma pauperis, initiated this action under 42 U.S.C. § 1983 on June 26, 2008, claiming his civil rights were violated in June 2007 when he was housed at R.J. Donovan State Prison. (Doc. No. 1, "Compl.") Named defendants Hernandez, Marrero, Sterling, and Peterson, move to dismiss Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6). (Doc. No. 14, "Mot.") Plaintiff filed an opposition to the motion. (Doc. No. 22.)

On May 13, 2009, Magistrate Judge Leo S. Papas issued a Report and Recommendations (Doc. No. 26, "R & R") recommending this court GRANT in part and DENY in part the motion to dismiss. Plaintiff and Defendants each filed objections to the R & R. (Doc. No. 28, "Pl. Obj."; Doc. No. 30, "Defs.' Obj.") Plaintiff also submitted a reply to Defendants' objections. (Doc. No. 33, "Pl. Reply.")

Having carefully considered the thorough and thoughtful R & R, the record before the court, Plaintiff's and Defendants' objections, and the applicable authorities, the court wholly ADOPTS THE R & R.

I. Background

On January 22, 2007, while housed at Donovan State Prison, Plaintiff filed a grievance against Defendants Hernandez, Marrero, Sterling, and Peterson, complaining they had denied him access to the law library and to the courts. (Compl. at 1.) Plaintiff's grievance and subsequent appeals were denied up to the third level of review. Plaintiff then filled out a SC-100 form in preparation for filing a suit in Small Claims Court against the same defendants. (Compl. at 3.) Prior to filing the suit, Plaintiff gave Defendants Sterling and Peterson each a note in which he informed them he was suing them for $1666.20 for denying him access to the law library and for failing to provide him with materials necessary to file legal papers. (Id.) In the note, Plaintiff offered to settle the suit for $200 from each defendant provided the funds were not applied toward any restitution he owed. (Id.)

Rather than responding to the "offer," Defendants Sterling and Peterson filed rule violation charges against Plaintiff, stating Plaintiff attempted to extort money from them in an unlawful manner in violation of California Code of Regulations ("CCR") § 3013, and they were concerned for their safety and security. (Compl., Exh. A.) On June 18, 2007, Plaintiff was charged with extortion and placed in Administrative Segregation ("Ad Seg") by Defendant Marrero pending an investigation. (Id. at 3.) Plaintiff contends Defendants filed the charges and placed him in Ad Seg to prevent him from filing his Small Claims Court action. On July 29, 2007, following an internal investigation and evidentiary hearing, Plaintiff was found not guilty of any Rules violations and the charges were dismissed. On August 16, 2007, Plaintiff filed his Small Claims Court lawsuit. (Compl. at 5.) He was ultimately released from Ad Seg on August 22, 2007 after completion of the Chief Disciplinary Officer's review of the proceedings. (Compl., Exh. D.) Plaintiff was subsequently transferred to Mule Creek State Prison on October 2, 2007 and then to High Desert State Prison on November 14, 2007.

Plaintiff sought administrative review of the officers' conduct through the prison appeals process. (Compl., Exh. D.) Plaintiff's grievance was denied at the Second Level of Review and at the Director's Level. (Id.) The review reports concluded Defendants acted in good faith in filing their reports and in complying with 15 CCR § 3312(a)(3), and there was no evidence Defendants had maliciously fabricated false charges against Plaintiff. (Id.)

Plaintiff alleges claims for violation of his constitutional rights under the First, Eighth, and Fourteenth Amendments. He sues all defendants in their official and individual capacities, seeking injunctive relief and actual and punitive damages.

II. Legal Standard

The court reviews a magistrate judge's R & R according to the standards set forth in Fed.R.Civ.P. 72(b) and 28 U.S.C. § 636. The court reviews de novo those portions of the report to which objection is made. United States v. Raddatz, 447 U.S. 667, 673-74, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.

Fed.R.Civ.P. 12(b)(6) allows for dismissal of a claim in "extraordinary" cases. United States v. Redwood City, 640 F.2d 963, 966 (9th Cir.1981). In evaluating a 12(b)(6) motion, the court must accept the complaint's allegations as true, and construe them in a light most favorable to the plaintiff. See Concha v. London, 62 F.3d 1493, 1500 (9th Cir.1995). The court should grant 12(b)(6) relief only where the complaint lacks either a "cognizable legal theory" or facts sufficient to support a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1988). At the same time, the complaint "must contain sufficient factual matter accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

III. Discussion

A. Tardy Response to the Complaint

In his objections, Plaintiff reiterates his position that Defendants' motion is moot because they responded to the Complaint outside the 20-day period set by Rule 12(a). However, Defendants waived service of process and were thus entitled to 60 days to reply under Rules 4(d)(3) and 12(a)(I)(A)(ii). Defendants' motion was timely filed.

B. First Amendment Retaliation Claim

Plaintiff alleges his rights under the First Amendment were violated when Defendants took retaliatory action against him by placing him in Ad Seg and subsequently transferring him from Donovan State Prison in an attempt to halt his Small Claims Court lawsuit. Under Rhodes v. Robinson, a valid retaliation claim must allege: (1) "a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal." Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir.2005) (citing Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir.2000)).

In spite of Defendants' argument that Plaintiff failed to adequately allege the fourth and fifth elements under Rhodes, the R & R concluded all elements were satisfied. Defendants object to this conclusion, once again contending the fourth and fifth elements are lacking. (Defs.' Obj. at 4-7).

To adequately plead the fourth element under Rhodes, a plaintiff must allege defendant's conduct "would chill or silence a person of ordinary firmness from future First Amendment activities." Rhodes, 408 F.3d at 569. Defendants contend placement in Ad Seg would not normally chill one's rights because there are "specific appeal procedures that are afforded to inmates who are appealing disciplinary matters" and that "inmates regularly file grievances and appeals while housed in administrative segregation." (Defs.' Obj. at 6.) In support, Defendants point to the fact Plaintiff continued his legal efforts from Ad Seg. As the R & R notes, Defendants cannot use the fact Plaintiff actually employed the grievance process as evidence his exercise of his First Amendment rights was not affected. Rhodes, 408 F.3d at 568. In addition, conduct by prison officials "need not be particularly great in order to find that rights have been violated" and such conduct is actionable even if it does not otherwise rise to the level of a distinct constitutional violation. Thomas v. Carpenter, 881 F.2d 828, 829-30 (9th Cir.1989) (citing Elrod v. Burns, 427 U.S. 347, 359 n. 13, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976)). The Ninth Circuit has expressly held placement in Ad Seg can chill First Amendment activity. Hines v. Gomez, 108 F.3d 265, 269 (9th Cir.1997). Defendants attempt to distinguish Hines, in which a prisoner's Ad Seg placement flowed from false accusations, whereas in this case, the placement was the result of purportedly good faith accusations by the officers. (Defs.' Obj. at 4.) However, this court is not bound by the conclusions regarding the officers' motives which were made during the prison's internal review process. Construing the facts in a light most favorable to Plaintiff, the Complaint does allege conduct that would have a chilling effect.

In the alternative, Plaintiff properly supported the fourth Rhodes element by alleging harm "more than minimal." Rhodes, 408 F.3d at 567 n. 11. In their objections, Defendants argue Plaintiff was not subjected to any measurable harm because Ad Seg conditions roughly approximate general prison conditions and placement in Ad Seg is not inherently punitive. See 15 C.C.R. §§ 3341.5, 3343. However, as mentioned in the R & R, Plaintiff need not plead harm that would rise to the level of a separate constitutional violation in order to satisfy this element. The court agrees with the R & R's finding that Plaintiff showed his exercise of First Amendment rights were chilled as a result of his placement in Ad Seg and the resultant mental and financial harms he suffered.

To adequately plead the...