Higdon v. Ryan et al

Filing 6

ORDER: Plaintiff's motion for reconsideration (Doc. 5 ) is granted and judgment entered on June 26, 2013 (Doc. 4 ) is vacated. The Complaint is dismissed for failure to state a claim (Doc. 1 ). Plaintiff has 30 days from the date this Order is filed to file a first amended complaint in compliance with this Order. If Plaintiff fails to file an amended complaint within 30 days, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action with prejudice that states that the dismissal may count as a strike under 28 U.S.C. § 1915(g). The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner. Signed by Judge David G Campbell on 12/30/2013. (Attachments: # 1 Prisoner Civil Rights Complaint)(ALS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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David A. Higdon,
Plaintiff,

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vs.

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Charles L. Ryan, et al.,

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Defendants.

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No. CV 13-0475-PHX-DGC (JFM)
ORDER

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On December 31, 2012, Plaintiff David A. Higdon, who is currently confined in the
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Arizona State Prison Complex-Lewis Rast Unit in Buckeye, Arizona, filed a complaint in
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Maricopa County Superior Court, matter No. CV2012-018711, suing six Arizona Department
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of Corrections (ADC) officials (Doc. 1-2, Ex. C, Attach. 1 at 10). Defendant Ryan timely
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removed the case to federal court based on federal question subject matter jurisdiction on
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March 7, 2013. By order dated June 26, 2013, the Court screened the Complaint pursuant
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to 28 U.S.C. § 1915A(a), dismissed the action for failure to state a claim, and entered
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Judgment against Plaintiff (Docs. 3-4). Plaintiff moves to reconsider that ruling (Doc. 5).
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The Court will grant Plaintiff’s motion, vacate the Judgment, and provide Plaintiff
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with 30 days to file an amended complaint.
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I.

Background

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Plaintiff alleged that his First, Eighth, and Fourteenth Amendment rights were violated
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when allegedly false disciplinary charges were filed against him (Compl. at 10). Specifically,
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Plaintiff averred that on December 4, 2011, Plaintiff received a visit from his wife, father,
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and three children, which was supervised by Stapleton (id. at 3). While standing in the

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outside visitation area, Plaintiff was holding his six-month-old baby while his wife stood next

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to him. Plaintiff’s father and other two children (ages six and seven) were standing in front

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of Plaintiff. Plaintiff and his visitors were in direct view of a video surveillance camera as

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well as other visitors and inmates (id.). A short time later, Stapleton came outside and

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ordered Plaintiff and his family to come inside. Stapleton informed them that their visit was

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terminated but she would not explain why (id. at 3-4). Before exiting the unit, CO Card

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detained Plaintiff’s wife for approximately 15 minutes and repeatedly asked her to “just

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admit what she’d done wrong and that way it would go easier on her” (id. at 4).

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On December 5 at 10:00 a.m., Trujillo delivered to Plaintiff a misconduct report for

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Sexual Abuse (id.). Trujillo explained that Stapleton reported that she observed Plaintiff’s

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erect penis being manually manipulated by Plaintiff’s wife while they were standing outside.

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Plaintiff told Trujillo that there were numerous witnesses who could controvert Stapleton’s

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allegations and that the videotape surveillance would similarly disprove the allegations.

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Trujillo gave Plaintiff two witness statement forms, one for Stapleton and one for inmate

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Tony Brown and informed Plaintiff that he (Trujillo) would investigate the incident

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thoroughly and referred the case to a Disciplinary Hearing Officer (id. at 4-5). Plaintiff

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contacted his wife later that day, explaining the situation. She, in turn, contacted CIU Officer

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Williams and informed him of the incident and the falsity of the allegations. She asked

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Williams to review the videotape evidence and to help exonerate Plaintiff (id. at 5).

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At 7:30 a.m. on December 7, Plaintiff was directed to turn in his witness statement

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forms; Plaintiff complied at 8:00 a.m. Summers conducted Plaintiff’s disciplinary hearing

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at 12:00 p.m. on December 7 (id. at 5-6). Summers denied Plaintiff the right to present

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witnesses, was not given 48 hours to prepare for the hearing, and known witnesses were not

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called or interviewed. Trujillo failed to conduct a minimal investigation by not contacting

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known civilian and inmates witnesses and by failing to review the video surveillance

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evidence. Plaintiff also learned that Stapleton had the misconduct report returned to her three

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times for rewriting and/or to change details contained therein (id. at 6).
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Plaintiff was found guilty of Sexual Abuse and lost 90 days Earned Release Credits

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(id. at 6-7). Plaintiff also was sanctioned to 30 days in Parole Class III, which deprived him

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of the right to earn release credits, visitation, and all other privileges (id. at 7). Plaintiff

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appealed the disciplinary charge through two levels of appeal, but Dorsey, Klausner, and

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Ryan took no action other than to uphold the findings (id. at 7-8).

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Plaintiff argues that Defendants actions violated his First, Eighth, and Fourteenth

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Amendment rights and seeks costs, compensatory and punitive damages, transfer to an out-

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of-state facility, and injunctive relief.

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The Court dismissed the Complaint, explaining that when success on a claim could

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potentially affect the duration of confinement, habeas corpus is the appropriate and exclusive

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vehicle to seek relief; a civil rights action pursuant to § 1983 is not available unless and until

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the prisoner has obtained a “favorable termination” of the underlying disciplinary action.

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Docken v. Chase, 393 F.3d 1024, 1031 (9th Cir. 2004) (Doc. 3). The “favorable termination”

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rule has been extended to prison disciplinary actions, when alleged due process defects, if

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established, would “necessarily imply the invalidity of the deprivation of [the prisoner’s]

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good-time credits.” Edwards v. Balisok, 520 U.S. 641, 646 (1997) (id.).

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II.

Motion for Reconsideration

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In his motion, Plaintiff asserts that because he is serving a natural life sentence, the

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loss of good-time credits could have no impact on the length of his sentence (Doc. 5). As a

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result, Plaintiff argues his claim is not barred by Edwards v. Balisok (id.).

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A.

Governing Standard

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Petitioner has filed a timely motion to alter or amend under Rule 59(e) of the Federal

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Rules of Civil Procedure. Am. Ironworks & Erectors, Inc. v. N. Am. Contr. Corp., 248 F.3d

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892, 898-99 (9th Cir. 2001) (“a motion for reconsideration is treated as a motion to alter or

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amend judgment under Federal Rule of Civil Procedure Rule 59(e) if it is filed within” the

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time provided under the rule). A Rule 59(e) motion is appropriate “if the district court: (1)

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is presented with newly discovered evidence, (2) committed clear error or the initial decision

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was manifestly unjust, or (3) if there is an intervening change in the controlling law.” Circuit
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City Stores, Inc. v. Mantor, 417 F.3d 1060, 1064 (9th Cir. 2005) (quoting Sch. Dist. No 1J,

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Multnomah County v. ACandS, Inc., 5 F .3d 1255, 1263 (9th Cir.1993)). However,

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generally, motions for reconsideration should be granted only in rare circumstances.

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Defenders of Wildlife v. Browner, 909 F. Supp. 1342, 1351 (D. Ariz. 1995). Mere

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disagreement with a previous order is an insufficient basis for reconsideration. See Leong

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v. Hilton Hotels Corp., 689 F. Supp. 1572, 1573 (D. Haw. 1988).

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reconsideration “may not be used to raise arguments or present evidence for the first time

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when they could reasonably have been raised earlier in the litigation.” Kona Enters., Inc. v.

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Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000).

A motion for

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B.

Analysis

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Plaintiff is correct that his natural life sentence takes his case outside the ambit of

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Edwards, whereby success on his due process claim would not necessarily impact the length

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of his sentence. The Court notes, however, that in his Complaint, Plaintiff alleged multiple

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times that he lost good time credits as a result of the challenged disciplinary violation

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(Doc. 1-2, Ex. C, Attach. 1 at 6, 7, 8, 12) and nowhere did he allege that he was serving a

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natural life sentence. Nevertheless, the Court will grant reconsideration to the extent that

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Edwards no longer serves as a barrier to Plaintiff’s claims. The Court must therefore

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continue to screen Plaintiff’s Complaint.

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III.

Screening of Plaintiff’s Complaint

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The Court is required to screen complaints brought by prisoners seeking relief against

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a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised

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claims that are legally frivolous or malicious, that fail to state a claim upon which relief may

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be granted, or that seek monetary relief from a defendant who is immune from such relief.

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28 U.S.C. § 1915A(b)(1), (2).

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A pleading must contain a “short and plain statement of the claim showing that the

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pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does not

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demand detailed factual allegations, “it demands more than an unadorned, the-defendant-4-

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unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

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“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements, do not suffice.” Id.

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“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a

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claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content

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that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for

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relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial

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experience and common sense.” Id. at 1950. Thus, although a plaintiff’s specific factual

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allegations may be consistent with a constitutional claim, a court must assess whether there

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are other “more likely explanations” for a defendant’s conduct. Id. at 1951. But as the

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United States Court of Appeals for the Ninth Circuit has instructed, courts must “continue

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to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A

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“complaint [filed by a pro se prisoner] ‘must be held to less stringent standards than formal

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pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per

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curiam)).

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IV.

Failure to State a Claim

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Section 1983 provides a cause of action against persons acting under color of state law

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who have violated rights guaranteed by the United States Constitution and federal law. 42

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U.S.C. § 1983; see also Buckley v. City of Redding, 66 F.3d 188, 190 (9th Cir. 1995). To

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state a claim under § 1983, a plaintiff must allege facts supporting that (1) the conduct about

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which he complains was committed by a person acting under the color of state law and (2)

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the conduct deprived him of a federal constitutional or statutory right. Wood v. Ostrander,

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879 F.2d 583, 587 (9th Cir. 1989). A plaintiff must also allege that he suffered a specific

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injury as a result of the conduct of a particular defendant and he must allege an affirmative

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link between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362,

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371-72, 377 (1976).
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A.

Due Process

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In analyzing a due process claim, the Court must first decide whether Plaintiff was

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entitled to any process, and if so, whether he was denied any constitutionally required

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procedural safeguard.

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Liberty interests which entitle an inmate to due process are “generally limited to

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freedom from restraint which, while not exceeding the sentence in such an unexpected

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manner as to give rise to protection by the Due Process Clause of its own force, nonetheless

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imposes atypical and significant hardship on the inmate in relation to the ordinary incidents

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of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995) (internal citations omitted).

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Therefore, to determine whether an inmate is entitled to the procedural protections

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afforded by the Due Process Clause, the Court must look to the particular restrictions

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imposed and ask whether they “‘present the type of atypical, significant deprivation in which

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a state might conceivably create a liberty interest.’” Mujahid v. Meyer, 59 F.3d 931, 932 (9th

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Cir. 1995) (quoting Sandin, 515 U.S. at 486).

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To determine whether the sanctions are atypical and a significant hardship, courts look

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to prisoner’s conditions of confinement, the duration of the sanction, and whether the

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sanction will affect the duration of the prisoner’s sentence. See Keenan v. Hall, 83 F.3d

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1083, 1088-89 (9th Cir. 1996). “Atypicality” requires not merely an empirical comparison,

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but turns on the importance of the right taken away from the prisoner. See Carlo v. City of

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Chino, 105 F.3d 493, 499 (9th Cir. 1997). See, e.g., Sandin, 515 U.S. at 472, 115 S.Ct. at

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2293 (30 days disciplinary segregation is not atypical and significant); Torres v. Fauver, 292

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F.3d 141, 151 (3rd Cir. 2002) (four months in administrative segregation is not atypical and

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significant); Jacks v. Crabtree, 114 F.3d 983 (9th Cir. 1997) (denial of year sentence

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reduction is not an atypical and significant hardship); Jones v. Baker, 155 F.3d 810 (6th Cir.

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1998) (two and one-half years of administrative segregation is not atypical and significant);

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Griffin v. Vaughn, 112 F.3d 703, 706-708 (3rd Cir.1997) (fifteen months administrative

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segregation is not atypical and significant); Beverati v. Smith, 120 F.3d 500, 504 (4th Cir.

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1997) (six months of confinement in especially disgusting conditions that were “more
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burdensome than those imposed on the general prison population were not “atypical ... in

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relation to the ordinary incidents of prison life.”).

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Here, Plaintiff alleges that he suffered 30 days loss of visits and all privileges. But

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none of the sanctions imposed constitute atypical or significant hardships that would trigger

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a liberty interest. Plaintiff also alleges that he lost all contact visitation privileges. But the

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Due Process Clause does not guarantee a right of unfettered visitation. See Kentucky Dep’t.

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of Corrections v. Thompson, 490 U.S. 454, 460 (1989); Keenan v. Hall, 83 F.3d 1083, 1092

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(9th Cir. 1996). Additionally, the Ninth Circuit has squarely held that prisoners have no right

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to contact visitation. Barnett v. Centoni, 31 F.3d 813, 817 (9th Cir. 1994); Toussaint v.

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McCarthy, 801 F.2d 1080, 1113 (9th Cir.). Even a blanket prohibition of contact visitation

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between pretrial detainees and their families is constitutionally sound. Block v. Rutherford,

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468 U.S. 576 (1984). Thus, a loss of contact visitation cannot form the basis for an

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independent due process violation.

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The Court will however, dismiss this claim with leave to amend to allow Plaintiff to

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demonstrate that imposition of noncontact visit status implicated a state-created liberty

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interest and, thus, imposed an “atypical and significant hardship.” See Sandin, 515 U.S. at

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484.

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B.

Retaliation

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Plaintiff also asserts in passing that Defendants actions are part of a campaign of

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harassment and retaliation (Compl. at 8-9). To state a viable claim for First Amendment

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retaliation, a plaintiff must allege facts to support that: (1) a state actor took some adverse

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action against him (2) because of (3) his protected conduct, and that such action (4) chilled

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the plaintiff’s exercise of his First Amendment rights (or that the plaintiff suffered more than

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minimal harm) and (5) did not reasonably advance a legitimate correctional goal. Rhodes

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v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); see also Hines v. Gomez, 108 F.3d 265,

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267 (9th Cir. 1997) (retaliation claims requires an inmate to show (1) that the prison official

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acted in retaliation for the exercise of a constitutionally protected right, and (2) that the action

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“advanced no legitimate penological interest”). The plaintiff has the burden of demonstrating
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that his exercise of his First Amendment rights was a substantial or motivating factor behind

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the defendants’ conduct. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,

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287 (1977); Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989).

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While Plaintiff complains that this disciplinary charge is part of a pattern of retaliation

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and harassment, he wholly fails to allege facts to support that any Defendant lodged the

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disciplinary charge against him in retaliation for any constitutionally-protected conduct. Nor

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has Plaintiff alleged facts to support that the alleged retaliation chilled the exercise of his

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First Amendment rights or that they did not serve legitimate penological interests.

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Accordingly, Plaintiff also fails to state a claim for retaliation and the Court will dismiss this

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claim with leave to amend.

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C. State Law Allegations

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If a federal court has original jurisdiction over an action, such as a case asserting

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violations of 42 U.S.C. § 1983, the doctrine of pendent jurisdiction allows a federal court to

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exercise “pendent” or “supplemental” jurisdiction over closely-related state law claims.

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Bahrampour v. Lampert, 356 F.3d 969, 978 (9th Cir. 2004) (citing 28 U.S.C. § 1367(a)).

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However, because Plaintiff fails to allege a federal constitutional violation against any

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Defendant, the Court will dismiss the Complaint with leave to amend and the Court declines

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to exercise jurisdiction over Plaintiff’s state law claims, which will be dismissed without

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prejudice.

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V.

Leave to Amend

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For the foregoing reasons, Plaintiff’s Complaint will be dismissed for failure to state

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a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a first

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amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail

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Plaintiff a court-approved form to use for filing a first amended complaint. If Plaintiff fails

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to use the court-approved form, the Court may strike the amended complaint and dismiss this

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action without further notice to Plaintiff.

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Plaintiff must clearly designate on the face of the document that it is the “First

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Amended Complaint.” The first amended complaint must be retyped or rewritten in its
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entirety on the court-approved form and may not incorporate any part of the original

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Complaint by reference. Plaintiff may include only one claim per count.

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A first amended complaint supersedes the original complaint. Ferdik v. Bonzelet, 963

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F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542,

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1546 (9th Cir. 1990). After amendment, the Court will treat an original complaint as

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nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original

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complaint is waived if it is not raised in a first amended complaint. King v. Atiyeh, 814 F.2d

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565, 567 (9th Cir. 1987).

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VI.

Warnings

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A.

Release

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Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release.

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Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay

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the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result

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in dismissal of this action.

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B.

Address Changes

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Plaintiff must file and serve a notice of a change of address in accordance with Rule

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83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other

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relief with a notice of change of address. Failure to comply may result in dismissal of this

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action.

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C.

Copies

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Plaintiff must submit an additional copy of every filing for use by the Court. See

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LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice

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to Plaintiff.

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D.

Possible “Strike”

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Because the Complaint has been dismissed for failure to state a claim, if Plaintiff fails

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to file an amended complaint correcting the deficiencies identified in this Order, the

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dismissal may count as a “strike” under the “3-strikes” provision of 28 U.S.C. § 1915(g).

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Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil
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judgment in forma pauperis under 28 U.S.C. § 1915 “if the prisoner has, on 3 or more prior

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occasions, while incarcerated or detained in any facility, brought an action or appeal in a

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court of the United States that was dismissed on the grounds that it is frivolous, malicious,

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or fails to state a claim upon which relief may be granted, unless the prisoner is under

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imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).

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E.

Possible Dismissal

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If Plaintiff fails to timely comply with every provision of this Order, including these

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warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d at

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1260-61 (a district court may dismiss an action for failure to comply with any order of the

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Court).

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IT IS ORDERED:

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(1)

Plaintiff’s motion for reconsideration (Doc. 5) is granted and judgment entered

on June 26, 2013 (Doc. 4) is vacated.
(2)

The Complaint is dismissed for failure to state a claim (Doc. 1). Plaintiff has

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30 days from the date this Order is filed to file a first amended complaint in compliance with

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this Order.

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(3)

If Plaintiff fails to file an amended complaint within 30 days, the Clerk of

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Court must, without further notice, enter a judgment of dismissal of this action with prejudice

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that states that the dismissal may count as a “strike” under 28 U.S.C. § 1915(g).

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(4)

The Clerk of Court must mail Plaintiff a court-approved form for filing a civil

rights complaint by a prisoner.
DATED this 30th day of December, 2013.

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