Nguyen v. Ascencio

Background

Tam Steve Nguyen, a state prisoner proceeding without a lawyer, filed a civil-rights complaint under 42 U.S.C. § 1983 against correctional officer Todan Ascencio. Nguyen had permission to proceed without paying the filing fee. The court therefore screened the complaint under the Prison Litigation Reform Act, which requires review of a prisoner’s claims against a governmental entity or official and dismissal of claims that are frivolous, malicious, inadequately pleaded, or seek money from an immune defendant.

Nguyen alleged retaliation, racial discrimination, and harassment. He said that on May 5, 2022, he argued with Ascencio about a cell search that found an electronic tablet, and that Ascencio made derogatory comments about Nguyen’s Asian heritage. Nguyen said he intended to file a grievance. Ascencio issued a rules-violation report the next day, and Nguyen filed a grievance on May 25, 2022. Nguyen was found guilty at hearings concerning the tablet and lost privileges and time credits. After officials found due-process violations at the second hearing, a third hearing was held several months later, and Nguyen was found not guilty.

Nguyen also alleged that Ascencio yelled at him on September 24, 2022, for using the telephone after losing phone privileges. Nguyen viewed that action as retaliation for filing a grievance, although he obtained permission to use the phone the next day. Nguyen filed grievances about the telephone incident and about Ascencio calling him a “snitch.” Ascencio later issued another rules-violation report concerning possession of a cell phone, but Nguyen was found not guilty at the hearing.

Court’s analysis

The court explained that a prison-retaliation claim requires allegations that a state actor took adverse action because of protected conduct, that the action chilled the prisoner’s exercise of constitutional rights, and that the action did not reasonably advance a legitimate correctional goal. Nguyen also needed to provide facts supporting an inference that Ascencio acted with retaliatory intent, rather than merely speculate about retaliation.

The court held that Nguyen’s allegations about Ascencio’s derogatory comments did not state a claim under § 1983. It directed Nguyen either to provide more information about that claim or remove it from an amended complaint. The court also required more information about the alleged retaliation, including how Ascencio’s actions were motivated by retaliation. It noted that some alleged retaliation appeared to involve a rules-violation report issued before Nguyen filed his grievances. The court further required Nguyen to explain how racial discrimination formed the basis for Ascencio’s actions and to provide the context of the “snitch” incident.

Disposition

The court granted the motion to amend, docket entry 3, and dismissed the complaint, docket entry 4, with leave to amend. Nguyen was required to file an amended complaint within 28 days of the order, using the case caption and civil case number and putting “AMENDED COMPLAINT” on the first page. The amended complaint had to include all claims Nguyen wished to pursue because it would replace the original complaint. The court warned that failure to amend within the designated time would result in dismissal of the case. It also stated that Nguyen was responsible for prosecuting the case and keeping the court informed of any address change, and that failure to do so could lead to dismissal for failure to prosecute. Judge Robert M. Illman signed the order.