Timothy Wayne Arnett v. Unknown

Filing 5

MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND by Judge John A Kronstadt. The Complaint is dismissed with leave to amend. If Plaintiff still wishes to pursue this action, he is granted 30 days from the date of this Order within which to file a First Amended Complaint. The First Amended Complaint shall be complete in itself. It shall not refer in any manner to any prior complaint. (sp) Modified on 8/5/2011 (sp).

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11
12
13
14
15
16

TIMOTHY WAYNE ARNETT,

)
)
Plaintiff,
)
)
v.
)
)
UNKNOWN,
)
)
Defendant.
)
)
______________________________)

NO. CV 11-5896-JAK(E)

MEMORANDUM AND ORDER DISMISSING
COMPLAINT WITH LEAVE TO AMEND

17
18
19

For the reasons discussed below, the Complaint is dismissed with
leave to amend.

See 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b).

20
21

BACKGROUND

22
23

On July 22, 2011, Timothy Wayne Arnett, a federal prisoner

24

proceeding pro se, filed a document titled: “NOTICE AND REQUEST FOR

25

UNITED STATES ATTORNEY TO INFORM GRAND JURY OF THE DEPRIVATION OF

26

PETITIONER’S RIGHTS IN VIOLATION OF 18 U.S.C. § 242, HIS IDENTITY, AND

27

SUCH U.S. ATTORNEY’S ACTION OR RECOMMENDATION PURSUANT TO 18 U.S.C. §

28

3332a; SUPPORTING DECLARATION, AND AFFIDAVIT TO PROCEED IN FORMA

1

PAUPERIS” (“Notice and Request”).

Although the first two pages of the

2

document request that the court issue a “summons” directing the United

3

States Attorney to respond to the “Complaint” by informing the grand

4

jury that Mr. Arnett purportedly has been deprived of his civil

5

rights, page two of the Notice and Request contains the legend

6

“COMPLAINT[;] DECLARATION OF TIMOTHY WAYNE ARNETT IN SUPPORT OF

7

COMPLAINT” (see Notice and Request, p. 2).

8

Notice and Request as a civil rights Complaint (“Complaint”), and

9

deems Mr. Arnett to be the Plaintiff on the Complaint.

The Court construes the

10
11

Plaintiff alleges that “several Federal Bureau of Prisons senior

12

staff at FCI Terminal Island” deprived Plaintiff of his alleged First

13

Amendment rights to communicate with a family member and to file

14

grievances, threatened to transfer Plaintiff for submitting

15

grievances, and retaliated against Plaintiff for submitting a

16

grievance by assigning Plaintiff to a job in the prison laundry

17

(Complaint, p. 2).

18

officials by name in the body of the Complaint, Plaintiff does not

19

name any Defendants.

20

issuance of a summons ordering the United States Attorney to inform

21

the grand jury of Plaintiff’s allegations (Complaint, p. 13).

Although Plaintiff identifies certain prison

Plaintiff does not seek damages, but rather the

22
23

Plaintiff alleges that, commencing in 2006, Plaintiff

24

participated in allegedly authorized stock market courses at the

25

United States Penitentiary at Victorville, California (id., p. 2).

26

During this time, a member of Plaintiff’s family allegedly opened a

27

personal electronic trading account (id., pp. 2-3).

28

allegedly offered advice to this family member using principles he had
2

Plaintiff

1

learned in the stock market courses (id., p. 3).

Plaintiff allegedly

2

used the prison’s inmate telephone and email system to communicate his

3

investment recommendations (id.).

4

allegedly was transferred to the United States Penitentiary at Lompoc,

5

California, where he assertedly participated in an advanced stock

6

market class, persuaded the Supervisor of Education to invest in

7

certain stock, and continued to make recommendations (id.).

In February 2008, Plaintiff

8
9

In June 2010, Plaintiff allegedly was transferred to FCI Terminal

10

Island, where he assertedly “noticed” that the institution did not

11

offer “CNBC on the prison’s TV network” or courses such as “Forbes’

12

Investment Course” (id.).

13

the Supervisor of Education, Arnel Abril, requesting authorization to

14

teach such a course and expressing a need for CNBC.

15

refused to approve such a course and threatened to transfer Plaintiff

16

if he continued “to press for such a class through administrative

17

remedies” (id., pp. 3-4).

18

allegedly told Plaintiff that staff members assertedly knew they could

19

threaten inmates who submitted complaints or administrative grievances

20

with transfer, loss of family visits or denial of the opportunity to

21

participate in the Residential Drug Abuse Program (id., p. 4).

Plaintiff allegedly submitted a proposal to

Abril allegedly

Thereafter, a senior prison employee

22
23

Plaintiff allegedly submitted an informal resolution request

24

(“BP-8”) asking that the prison add CNBC to its television network

25

(id.).

26

allegedly submitted a similar request to the warden, along with the

27

information that Abril assertedly had threatened Plaintiff, but

28

allegedly received no response (id., p. 5).

Abril allegedly did not respond (id., pp. 4-5).

3

Plaintiff

Plaintiff allegedly

1

discussed the matter with Assistant Warden Pete Spartz, who assertedly

2

said he would add CNBC to the list of television channels (id.).

3

Instead, however, Spartz reportedly added the Cartoon Network and the

4

Animal Planet Channel (id.).

5
6

Thereafter, on April 25, 2011, Disciplinary Hearing Officer

7

Joe DeVore allegedly warned Plaintiff that Plaintiff was violating a

8

policy of the federal Bureau of Prisons (“BOP”) prohibiting inmates

9

from conducting a business by using the prison email system to contact

10

a family member with investment advice (id.).

Plaintiff alleges that

11

DeVore’s conclusion that Plaintiff was conducting a business in

12

violation of BOP policy was erroneous and inconsistent in light of the

13

prison’s alleged tolerance of other inmates who were “doing what

14

[Plaintiff] had been doing” (id., p. 6).

15

inmates are permitted to provide laundry services for other inmates in

16

exchange for “stamps or commissary,” yet assertedly are never

17

disciplined for operating a business (id., p. 7).

Plaintiff alleges that

18
19

Allegedly believing DeVore was mistaken, Plaintiff assertedly

20

submitted a BP-8 to DeVore, which DeVore reportedly denied in a

21

written response (id.).

22

9”) to his housing unit counselor, D. Egeonuigwe, who alerted the Unit

23

Manager, Mark Colangelo (id., p. 8).

24

allegedly directed Plaintiff into a private area, told Plaintiff that

25

he, Colangelo, agreed with DeVore, and asked Plaintiff to tear up the

26

BP-9 (id.).

27

said he was going to assign Plaintiff to a job that would keep

28

Plaintiff tied up all day because Plaintiff assertedly had too much

Plaintiff submitted a formal grievance (“BP-

On May 3, 2011, Colangelo

When Plaintiff assertedly refused, Colangelo allegedly

4

1

free time on his hands (id.).

Colangelo allegedly advised Egeonuigwe

2

of this plan, and a few minutes later Egeonuigwe assertedly laughingly

3

told Plaintiff that Plaintiff was being transferred to another job

4

(id.).

5

effective the next morning (id., pp. 8-9).

6

is a 58-year-old man with chronic back and hip pain who assertedly

7

cannot sit or stand without pain for short periods of time, and that

8

in the laundry Plaintiff is forced “to sit for painfully long periods

9

of time doing nothing” (id., p. 11).

Plaintiff allegedly was transferred to a job in the laundry,
Plaintiff alleges that he

Plaintiff alleges that the

10

laundry did not need another worker, such that the only reason for the

11

transfer assertedly was to punish Plaintiff for submitting a BP-9

12

challenging DeVore’s policy interpretation (id., pp. 11-12).

13
14

Plaintiff also alleges that Colangelo interfered with the

15

grievance process, assertedly by: (1) holding for seventeen days a

16

notice from the BOP Regional Director advising Plaintiff to file a

17

BP-9 instead of a BP-10; and (2) intercepting and holding for three

18

months the BOP Central Office’s response and threatening to transfer

19

Plaintiff to a higher level prison after Plaintiff allegedly asked the

20

warden for maximum halfway house time (id., pp. 9 n.2, 10).

21
22

Plaintiff alleges that, as a result of the asserted First

23

Amendment violations by Colangelo, Egeonuigwe and DeVore, Plaintiff

24

was forced to seek psychiatric treatment (id., p. 12).

25

allegedly fears now to use the prison administrative remedy process

26

for fear of further retaliation (id.).

27

Colangelo, Egeonuigwe, DeVore and Spartz have conspired to deprive

28

Plaintiff of his First Amendment rights (id., p. 13).
5

Plaintiff

Plaintiff alleges that

1

DISCUSSION

2
3

Plaintiff may not seek an order directing the United States

4

Attorney to inform the grand jury of Plaintiff’s allegations.

“In our

5

criminal justice system, the Government retains ‘broad discretion’ as

6

to whom to prosecute.”

7

(1985).

8

in the prosecution or nonprosecution of another.”

9

Richard D., 410 U.S. 614, 619 (1973).

Wayte v. United States, 470 U.S. 598, 607

“[A] private citizen lacks a judicially cognizable interest
Linda R. S. v.

10
11

To the extent that Plaintiff alleges that prison officials

12

interfered with or failed to respond to Plaintiff’s grievances, the

13

Complaint is insufficient.

14

regarding the proper handling of grievances.”

15

State Dep’t of Corrections, 244 Fed. App’x 106, 108 (9th Cir. 2007),

16

cert. denied, 562 U.S. 1282 (2008); see also Ramirez v. Galaza, 334

17

F.3d 850, 860 (9th Cir. 2003), cert. denied, 541 U.S. 1063 (2004).

“[A]n inmate has no due process rights
Wise v. Washington

18
19

To the extent that Plaintiff purports to bring claims under

20

federal penal statutes such as 18 U.S.C. section 242, no private right

21

of action exists for violations of those criminal statutes.

22

Allen v. Gold Country Casino, 464 F.3d 1044, 1048 (9th Cir. 2006),

23

cert. denied, 549 U.S. 1231 (2007); Aldabe v. Aldabe, 616 F.2d 1089,

24

1092 (9th Cir. 1980).

See

25
26

Finally, the Complaint does not name any Defendant, and it cannot

27

be determined with certainty from the body of the document whom

28

Plaintiff intends to sue.

A complaint is subject to dismissal if “one
6

1

cannot determine from the complaint who is being sued, [and] for what

2

relief . . .”

3

see also F. R. Civ. P. 10(a) (title of complaint “must name all the

4

parties”).

McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996);

5
6

CONCLUSION AND ORDER

7
8
9

The Complaint is dismissed with leave to amend.

If Plaintiff

still wishes to pursue this action, he is granted thirty (30) days

10

from the date of this Order within which to file a First Amended

11

Complaint.

12

It shall not refer in any manner to any prior complaint.

13

Amended Complaint must identify all Defendants whom Plaintiff wishes

14

to sue in this action, and shall not seek the remedy of the

15

prosecution of any other person.

16

Amended Complaint in conformity with this Order may result in the

17

dismissal of this action.

18

642-43 (9th Cir. 2002), cert. denied, 538 U.S. 909 (2003) (court may

19

dismiss action for failure to follow court order); Simon v. Value

20

Behavioral Health, Inc., 208 F.3d 1073, 1084 (9th Cir.), amended, 234

21

F.3d 428 (9th Cir. 2000), cert. denied, 531 U.S. 1104 (2001),

22

overruled on other grounds, Odom v. Microsoft Corp., 486 F.3d 541 (9th

23

Cir.), cert. denied, 552 U.S. 985 (2007) (affirming dismissal without

24

leave to amend where plaintiff failed to correct deficiencies in

25

complaint, where court had afforded plaintiff opportunities to do so,

26

and where court had given plaintiff notice of the substantive problems

27

with his claims); Plumeau v. School District #40, County of Yamhill,

28

///

The First Amended Complaint shall be complete in itself.
Any First

Failure to file timely a First

See Pagtalunan v. Galaza, 291 F.3d 639,

7

1

130 F.3d 432, 439 (9th Cir. 1997) (denial of leave to amend

2

appropriate where further amendment would be futile).1

3
4

IT IS SO ORDERED.

5
6

DATED: August 4, 2011.

7
8
9

____________________________________
JOHN A. KRONSTADT
UNITED STATES DISTRICT JUDGE

10
11
12
13
14

PRESENTED this 2nd day of

15

August, 2011, by:

16
17
18

_____________/S/______________
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

19
20
21
22
23
24
25
26
27
28

1

In view of this disposition, the Court need not and
does not determine at this time whether Plaintiff can state a
civil rights claim for retaliation.
8