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Ninth Circuit Reverses §1915 Dismissal of Retaliation Claim
The Ninth Circuit Court of Appeals reversed a lower court’s dismissal of a prisoner’s retaliation claim for failure to state a claim under 28 USC sec. 1915(e).
Nevada prisoner Russell Cohen sued prison officials in federal court, alleging that they “retaliated against him for filing grievances by refusing to provide him with forms and supplies, and by serving him with a notice of charges.” The district court dismissed the complaint pursuant to 28 USC sec. 1915(e), for failure to state a claim.
Citing Rhoades v. Robinson, 208 F.3d 559 (9th Cir. 2005), the Ninth Circuit reversed, holding that “liberally construed and taken as true,” Cohen’s “allegations state a claim for retaliation.” The court concluded that “the fact that Cohen continued to file grievances and federal actions despite the alleged retaliation cannot be used to determine that he failed to state a claim that his First Amendment rights were chilled.” Accordingly, “the district court abused its discretion by dismissing the complaint for failure to amend it.”
The court also reversed “the dismissal of Cohen’s due process and equal protection claims because it is not clear that the deficiencies in the complaint with respect to those claims could not be cured through amendment.” See: Cohen v. Summervold, 276 Fed. Appx. 642 (9th Cir. 2008).
Nevada prisoner Russell Cohen sued prison officials in federal court, alleging that they “retaliated against him for filing grievances by refusing to provide him with forms and supplies, and by serving him with a notice of charges.” The district court dismissed the complaint pursuant to 28 USC sec. 1915(e), for failure to state a claim.
Citing Rhoades v. Robinson, 208 F.3d 559 (9th Cir. 2005), the Ninth Circuit reversed, holding that “liberally construed and taken as true,” Cohen’s “allegations state a claim for retaliation.” The court concluded that “the fact that Cohen continued to file grievances and federal actions despite the alleged retaliation cannot be used to determine that he failed to state a claim that his First Amendment rights were chilled.” Accordingly, “the district court abused its discretion by dismissing the complaint for failure to amend it.”
The court also reversed “the dismissal of Cohen’s due process and equal protection claims because it is not clear that the deficiencies in the complaint with respect to those claims could not be cured through amendment.” See: Cohen v. Summervold, 276 Fed. Appx. 642 (9th Cir. 2008).
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Related legal case
Cohen v. Summervold
| Year | 2008 |
|---|---|
| Cite | 276 Fed. Appx. 642 (9th Cir. 2008) |
| Level | Unpublished Court of Appeals |
276 Fed. Appx. 642, *; 2008 U.S. App. LEXIS 10003, **
RUSSELL COHEN, Plaintiff - Appellant, v. SHARON SUMMERVOLD; R. BRYANT, Defendants - Appellees.
No. 06-17039
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
276 Fed. Appx. 642; 2008 U.S. App. LEXIS 10003
April 22, 2008 ** , Submitted
** The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
May 1, 2008, Filed
NOTICE: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.
[*642] MEMORANDUM *
FOOTNOTES
* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Before: GRABER Click for Enhanced Coverage Linking Searches, FISHER, and BERZON Click for Enhanced Coverage Linking Searches, Circuit Judges.
Russell Cohen appeals pro se from the district court's judgment dismissing with prejudice, pursuant to 28 U.S.C. § 1915(e), his 42 U.S.C. § 1983 action alleging prison guards violated his constitutional rights. We have jurisdiction pursuant to 28 U.S.C. § 1291. [*643] We review for an abuse of discretion the district court's dismissal with prejudice for failing to comply with a court order to amend the complaint. Yourish v. California Amplifier, 191 F.3d 983, 989 (9th Cir. 1999). We reverse and remand.
Cohen's pro se complaint alleged that defendants retaliated against him for filing grievances by refusing to provide him [**2] with forms and supplies, and by serving him with a notice of charges. The complaint further alleged that Cohen's First Amendment rights were chilled because he feared that if he tried to submit grievances, Officer Summervold would continue to serve him with notices of charges. Liberally construed and taken as true, these allegations state a claim for retaliation. See Rhodes v. Robinson, 408 F.3d 559, 563 n.1, 567-68 (9th Cir. 2005) (explaining that "a viable claim of First Amendment retaliation entails five basic elements: (1) [a]n assertion that 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.").
The fact that Cohen continued to file grievances and federal actions despite the alleged retaliation cannot be used to determine that he failed to state a claim that his First Amendment rights were chilled, because the relevant question is whether defendants' actions would have chilled "a person of ordinary firmness from future First Amendment activities." See id. at 568 [**3] (citation and quotation marks omitted).
Because Cohen was entitled to stand on the allegations without further amendment, the district court abused its discretion by dismissing the complaint for failure to amend it. See McKeever v. Block, 932 F.2d 795, 797 (9th Cir. 1991) ("The refusal to file a[n] . . . amended compliant would not be unreasonable if the [original] complaint was dismissed erroneously.").
We also reverse the dismissal of Cohen's due process and equal protection claims because it is not clear that the deficiencies in the complaint with respect to those claims could not be cured through amendment. See Yourish, 191 F.3d at 990.
REVERSED and REMANDED for further proceedings consistent with this memorandum.
RUSSELL COHEN, Plaintiff - Appellant, v. SHARON SUMMERVOLD; R. BRYANT, Defendants - Appellees.
No. 06-17039
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
276 Fed. Appx. 642; 2008 U.S. App. LEXIS 10003
April 22, 2008 ** , Submitted
** The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
May 1, 2008, Filed
NOTICE: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.
[*642] MEMORANDUM *
FOOTNOTES
* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Before: GRABER Click for Enhanced Coverage Linking Searches, FISHER, and BERZON Click for Enhanced Coverage Linking Searches, Circuit Judges.
Russell Cohen appeals pro se from the district court's judgment dismissing with prejudice, pursuant to 28 U.S.C. § 1915(e), his 42 U.S.C. § 1983 action alleging prison guards violated his constitutional rights. We have jurisdiction pursuant to 28 U.S.C. § 1291. [*643] We review for an abuse of discretion the district court's dismissal with prejudice for failing to comply with a court order to amend the complaint. Yourish v. California Amplifier, 191 F.3d 983, 989 (9th Cir. 1999). We reverse and remand.
Cohen's pro se complaint alleged that defendants retaliated against him for filing grievances by refusing to provide him [**2] with forms and supplies, and by serving him with a notice of charges. The complaint further alleged that Cohen's First Amendment rights were chilled because he feared that if he tried to submit grievances, Officer Summervold would continue to serve him with notices of charges. Liberally construed and taken as true, these allegations state a claim for retaliation. See Rhodes v. Robinson, 408 F.3d 559, 563 n.1, 567-68 (9th Cir. 2005) (explaining that "a viable claim of First Amendment retaliation entails five basic elements: (1) [a]n assertion that 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.").
The fact that Cohen continued to file grievances and federal actions despite the alleged retaliation cannot be used to determine that he failed to state a claim that his First Amendment rights were chilled, because the relevant question is whether defendants' actions would have chilled "a person of ordinary firmness from future First Amendment activities." See id. at 568 [**3] (citation and quotation marks omitted).
Because Cohen was entitled to stand on the allegations without further amendment, the district court abused its discretion by dismissing the complaint for failure to amend it. See McKeever v. Block, 932 F.2d 795, 797 (9th Cir. 1991) ("The refusal to file a[n] . . . amended compliant would not be unreasonable if the [original] complaint was dismissed erroneously.").
We also reverse the dismissal of Cohen's due process and equal protection claims because it is not clear that the deficiencies in the complaint with respect to those claims could not be cured through amendment. See Yourish, 191 F.3d at 990.
REVERSED and REMANDED for further proceedings consistent with this memorandum.