Thompson v. Burns et al

Filing 13

ORDER: The First Amended Complaint 10 is dismissed for failure to state a claim. Plaintiff has 30 days from the date this Order is filed to file a second amended complaint in compliance with this Order. If Plaintiff fails to file a second 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 Steven P Logan on 7/21/2014. (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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Thad Jarvis Thompson,

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No. CV 13-01715-PHX-SPL (MEA)

Plaintiff,
vs.

ORDER

Unknown Burns, et al.,

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Defendants.

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On August 20, 2013, Plaintiff Thad Jarvis Thompson, who is confined in the

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Halawa Correctional Facility in Aiea, Hawaii, filed a pro se civil rights Complaint

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pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. In a

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March 3, 2014 Order, the Court granted the Application to Proceed and dismissed the

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Complaint because Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days

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to file an amended complaint that cured the deficiencies identified in the Order.

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On March 31, 2014, Plaintiff filed his First Amended Complaint (Doc. 10). The

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Court will dismiss the First Amended Complaint with leave to amend.

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I.

Statutory Screening of Prisoner Complaints

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

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against a governmental entity or an officer or an employee of a governmental entity. 28

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U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff

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has raised claims that are legally frivolous or malicious, that fail to state a claim upon

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which relief may be granted, or that seek monetary relief from a defendant who is

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immune from such relief. 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

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does not demand detailed factual allegations, “it demands more than an unadorned, the-

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defendant-unlawfully-harmed-me accusation.”

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(2009). “Threadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Id.

Ashcroft v. Iqbal, 556 U.S. 662, 678

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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

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

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

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claim for relief [is] . . . a context-specific task that requires the reviewing court to draw

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on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff’s

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specific factual allegations may be consistent with a constitutional claim, a court must

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assess whether there are other “more likely explanations” for a defendant’s conduct. Id.

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at 681.

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But as the United States Court of Appeals for the Ninth Circuit has instructed,

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courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338,

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342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less

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stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v.

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Pardus, 551 U.S. 89, 94 (2007) (per curiam)).

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If the Court determines that a pleading could be cured by the allegation of other

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facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal

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of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc).

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Plaintiff’s First Amended Complaint will be dismissed for failure to state a claim, but

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because it may possibly be amended to state a claim, the Court will dismiss it with leave

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to amend.

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II.

First Amended Complaint

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Plaintiff names Disciplinary Hearing Officer Burns and Investigator Williamson

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as Defendants in the First Amended Complaint. Plaintiff raises one claim for relief in

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which he alleges his Fourteenth Amendment rights were violated when Defendant Burns

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denied Plaintiff the opportunity to appeal disciplinary sanctions and when Defendant

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Williamson denied him “the option of investigating my denial of appealing disciplinary

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sanction.” Plaintiff alleges that his disciplinary conviction resulted in his being confined

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in disciplinary housing where his conditions of confinement included: 23-hour lockdown,

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solitary confinement, no access to commissary items, frequent wake-up checks, 24-hour

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lighting, and limited exercise. Plaintiff contends that these conditions were atypical.

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Plaintiff seeks injunctive relief and money damages.
III.

Failure to State a Claim

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Where, as in this case, an inmate claims that a protected liberty interest has been

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implicated by atypical and significant sanctions, the inmate must then specify what due

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process safeguard he was denied, and by whom. “Prison disciplinary proceedings are not

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part of a criminal prosecution, and the full panoply of rights due a defendant in such

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proceedings does not apply.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974).

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Procedural due process safeguards in a prison disciplinary hearing require that the

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defendant receive: (1) written notice of the charges, no less than twenty-four hours prior

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to the hearing; (2) a written statement by the factfinders as to the evidence relied on and

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reasons for the disciplinary action and (3) a limited right to call witnesses and present

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documentary evidence when it would not be unduly hazardous to institutional safety or

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correctional goals to allow the defendant to do so. Wolff v. McDonnell, 418 U.S. 539,

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565-66 (1974).

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Once these Wolff procedural protections are followed, the only function of a
federal court is to review the statement of evidence upon which the committee relied in

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making its findings to determine if the decision is supported by “some facts.” Hanrahan

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v. Lane, 747 F.2d 1137, 1141 (7th Cir. 1984) (citation omitted). Due process requires

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simply “that there be some evidence to support the findings made in the disciplinary

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hearing.” Superintendent v. Hill, 472 U.S. 445, 457 (1985).

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Plaintiff alleges that he was denied the ability to appeal his disciplinary

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conviction, but he does not allege that any of the above procedural safeguards were

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violated during his disciplinary hearings.

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demonstrating that there was not “some evidence” to support his disciplinary conviction.

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Accordingly, Plaintiff has failed to state a claim.

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IV.

Further, Plaintiff fails to allege facts

Leave to Amend

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For the foregoing reasons, Plaintiff’s First Amended Complaint will be dismissed

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for failure to state a claim upon which relief may be granted. Within 30 days, Plaintiff

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may submit a second amended complaint to cure the deficiencies outlined above. The

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Clerk of Court will mail Plaintiff a court-approved form to use for filing a second

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amended complaint. If Plaintiff fails to use the court-approved form, the Court may

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strike the second amended complaint and dismiss this action without further notice to

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Plaintiff.

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

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Amended Complaint.” The second amended complaint must be retyped or rewritten in

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its entirety on the court-approved form and may not incorporate any part of the original

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Complaint or First Amended Complaint by reference. Plaintiff may include only one

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claim per count.

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Amended Complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal

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Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After

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amendment, the Court will treat the original Complaint and First Amended Complaint as

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

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A second amended complaint supersedes the original Complaint and First

original complaint or first amended complaint and that was voluntarily dismissed or was

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dismissed without prejudice is waived if it is not alleged in a second amended complaint.

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Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc).

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V.

Warnings

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A.

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

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

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intends to pay the balance or (2) show good cause, in writing, why he cannot. Failure to

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comply may result in dismissal of this action.

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B.

Release

Address Changes

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

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

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for other relief with a notice of change of address. Failure to comply may result in

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dismissal of this action.

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C.

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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

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notice to Plaintiff.

Copies

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Because the First Amended Complaint has been dismissed for failure to state a

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claim, if Plaintiff fails to file a second amended complaint correcting the deficiencies

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identified in this Order, the dismissal may count as a “strike” under the “3-strikes”

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provision of 28 U.S.C. § 1915(g). Under the 3-strikes provision, a prisoner may not bring

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a civil action or appeal a civil judgment in forma pauperis under 28 U.S.C. § 1915 “if the

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prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility,

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brought an action or appeal in a court of the United States that was dismissed on the

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grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be

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granted, unless the prisoner is under imminent danger of serious physical injury.” 28

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D.

U.S.C. § 1915(g).

Possible “Strike”

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E.

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

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these warnings, the Court may dismiss this action without further notice. See Ferdik, 963

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F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any

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order of the Court).

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IT IS ORDERED:

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(1)

Possible Dismissal

The First Amended Complaint (Doc. 10) is dismissed for failure to state a

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claim. Plaintiff has 30 days from the date this Order is filed to file a second amended

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complaint in compliance with this Order.

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(2)

If Plaintiff fails to file a second amended complaint within 30 days, the

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

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with prejudice that states that the dismissal may count as a “strike” under 28 U.S.C.

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§ 1915(g).

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(3)

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

civil rights complaint by a prisoner.
Dated this 21st day of July, 2014.

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Honorable Steven P. Logan
United States District Judge

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