Tobias A Frank v. Derrick Schultz et al

Filing 34

MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Suzanne H. Segal. The Complaint is dismissed with leave to amend. If Plaintiff still wishes to pursue this action, he is granted thirty (30) days from the date of this Memorandum and Order within which to file a First Amended Complaint. Plaintiff is strongly encouraged to utilize the standard civil rights complaint form when filing any amended complaint, a copy of which is attached. Plaintiff is further advised th at if he no longer wishes to pursue this action, he may voluntarily dismiss it by filing a Notice of Dismissal in accordance with Federal Rule of Civil Procedure 41(a)(1). A form Notice of Dismissal is attached for Plaintiff's convenience. (See document for further details). (Attachments: # 1 CIVIL RIGHTS COMPLAINT FORM, # 2 NOTICE OF DISMISSAL FORM) (mr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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TOBIAS A. FRANK,

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Plaintiff,

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v.
DERRICK SCHULTZ, et al.,

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Defendants

NO. EDCV 12-1848 JAK (SS)
MEMORANDUM AND ORDER DISMISSING
COMPLAINT WITH LEAVE TO AMEND

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I.

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INTRODUCTION

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On February 11, 2013, Plaintiff Tobias A. Frank, a federal prisoner

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proceeding pro se, filed a complaint alleging violations of his civil

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rights pursuant to Bivens v. Six Unknown Named Agents of the Federal

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Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619

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(1971).

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dismissed with leave to amend.1

(Dkt. No. 12).

For the reasons stated below, the Complaint is

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Magistrate judges may dismiss a complaint with leave to amend
without approval of the district judge. See McKeever v. Block, 932 F.2d
795, 795 (9th Cir. 1991).

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Congress mandates that district courts initially screen civil

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complaints filed by prisoners seeking redress from a governmental entity

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or employee.

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complaint, or any portions thereof, before service of process if the

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Court concludes that the complaint (1) is frivolous or malicious, (2)

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fails to state a claim upon which relief can be granted, or (3) seeks

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monetary relief from a defendant who is immune from such relief.

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U.S.C. § 1915A(b) (1)-(2); see also Lopez v. Smith, 203 F.3d 1122, 1126-

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27 & n.7 (9th Cir. 2000) (en banc).

28 U.S.C. § 1915A(b).

This Court may dismiss such a

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II.

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ALLEGATIONS OF THE COMPLAINT

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The Complaint names as defendants three employees of the Federal

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Bureau of Prisons (“BOP”): (1) Derrick Schultz, a correctional counselor

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at Victorville Med. II; (2) R. Byrd, a disciplinary hearing officer at

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Victorville Med. II; and (3) Juan D. Castillo, the Western Regional

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Director of the BOP.

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their individual and official capacities.

(Complaint at 1).

Defendants are sued in both
(Id.).

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While Plaintiff’s specific claims are not entirely clear, the

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gravamen of the Complaint appears to argue that Defendants violated

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Plaintiff’s constitutional rights by unlawfully imposing administrative

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sanctions on him for serving as a witness to the signing of another

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prisoner’s legal documents. Plaintiff contends that on or about May 24,

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2012, Defendant Schultz, in reviewing the institutional mail, observed

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that Plaintiff had signed another inmate’s legal documents as a witness.

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(Id. at 2).

Although Plaintiff asserts that no one ever told him that
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such conduct was prohibited, Defendant Schultz filed an incident report

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in which he stated that by signing the other inmate’s documents,

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Plaintiff had been in possession of unauthorized material in violation

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of Code 305’s broad prohibition on the possession by an inmate of

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“anything unauthorized.”

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Defendant Byrd on or about May 31, 2012. (Id.).

(Id.).

The incident report was referred to

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A disciplinary hearing was held on July 6, 2012 in which Defendants
Schultz and Byrd found Plaintiff guilty of violating Code 305.

(Id. at

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2; id., Exh. C).

Plaintiff’s conviction appears to have been based

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solely on Defendants’ belief that “Plaintiff’s signature . . . on the

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documents means that Plaintiff possessed the documents at some point in

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time.” (Id. at 3).

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statement of the specific evidence Defendants relied on and the reasons

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for the disciplinary actions taken.

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Defendant Byrd revoked fourteen days of Plaintiff’s good-time credits

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and three months of commissary visits and visitation rights.

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3).

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Defendant Byrd expunged the incident reports of the two other inmates

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who were charged for the same conduct. (Id.).

However, Plaintiff was not provided with a written

(Id. at 2).

As punishment,

(Id. at

Morever, Plaintiff alleges that even though he was punished,

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Plaintiff appealed his conviction to Defendant Castillo.

(Id.).

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On September 20, 2012, Defendant Castillo granted partial relief and

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expunged Plaintiff’s incident report. (Id., Exh. C). However, Plaintiff

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alleges that despite the expungement, Defendants failed to restore

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Plaintiff’s forfeited good-time credits and visitation and commissary

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privileges.2

(Complaint at 3).

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III.

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PLAINTIFF’S CLAIMS

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Plaintiff claims that by imposing sanctions for signing legal

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documents,

Defendants

Schultz

and

Byrd

violated

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Amendment rights of expression and association.

Plaintiff’s

First

(Complaint at 4).

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Furthermore, Plaintiff alleges that Defendants Schultz and Byrd denied

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him due process of law by failing to give fair notice or warning

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regarding the prohibited conduct.

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Defendants Schultz and Byrd failed to provide any evidence of guilt,

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reasons for the disciplinary actions taken, or a written statement of

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the evidence they relied upon.

(Id.).

Also, Plaintiff claims that

(Id.).

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Lastly, Plaintiff claims that Defendants Byrd and Castillo violated

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Plaintiff’s right to equal protection.

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contends that Defendant Byrd violated his right to equal protection by

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expunging the incident reports of the other two inmates who were charged

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for

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Plaintiff argues that Defendant Castillo violated Plaintiff’s right to

the

same

offense

while

finding

(Id.).

Specifically, Plaintiff

Plaintiff

guilty.

Moreover,

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Plaintiff later contended in his Response to the Court’s February
12, 2013 Order to Show Cause Why Plaintiff’s Claims Are Not Heck-Barred
and in his Objections to the Court’s March 18, 2013 Report and
Recommendation recommending dismissal for failure to prosecute that his
credits and privileges were in fact fully restored on October 3, 2012,
nearly two weeks before Plaintiff signed the instant Complaint. (Dkt.
No. 27 at 1; Dkt. No. 29 at 2; see also Complaint at 5).
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equal

protection

by

failing

to

restore

Plaintiff’s

credits

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privileges after expunging the incident report.

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Plaintiff claims he was denied an equal opportunity to receive visits

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and to shop at the commissary like other inmates.

(Id.).

and

As such,

(Id. at 5).

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Plaintiff contends that he now suffers from emotional distress,

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depression, anxiety, and an impaired state of mind due to Defendants’

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actions.

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compensatory damages in the amount of $100,000 against Defendants

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Schultz and Byrd jointly and severally, $50,000 against Defendant

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Castillo,

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Defendants jointly and severally, and recovery of his costs in this

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suit.

(Id.

at

punitive

4-5).

damages

Plaintiff

in

the

requests

amount

of

declaratory

$150,000

relief,

against all

(Id. at 5).

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IV.

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DISCUSSION

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Pursuant

to

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U.S.C.

§

1915A(b),

the

Court

must

dismiss

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Plaintiff’s Complaint due to defects in pleading.

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civil

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complaints unless it is absolutely clear that the deficiencies cannot be

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cured by amendment.

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Court grants Plaintiff leave to amend, as indicated below.

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rights

cases,

however,

must

be

given

Pro se litigants in

leave

See Lopez, 203 F.3d at 1128-29.

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to

amend

their

Accordingly, the

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A.

Plaintiff Fails To State A Claim Against Defendants In Their
Official Capacities

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A suit for damages against federal employees in their official

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capacity is functionally a suit against the United States.

Gilbert v.

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DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985).

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action against a federal defendant under Bivens may be brought only

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against an offending individual officer or officers, not the United

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States or its agencies.

However, a civil rights

Correctional Services Corp. V. Malesko, 534

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U.S. 61, 72, 122 S. Ct. 515, 151 L. Ed. 2d 456 (2001); id. at 70-71

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(explaining that because the “purpose of Bivens is to deter individual

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federal

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“deterrent effects of the Bivens remedy would be lost” if the Court

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“were to imply a damages action directly against federal agencies”). As

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such, no cause of action is available under Bivens against federal

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employees sued in their official capacities.

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Homeland Sec., 538 F.3d 1250, 1257 (9th Cir. 2008).

officers

from

committing

constitutional

violations,”

the

Ibrahim v. Dept. of

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Here, the Complaint names as defendants three employees of the

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Federal Bureau of Prisons. The Complaint states that “each defendant is

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sued individually and in his official capacity.”

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However, as stated above, no cause of action is available under Bivens

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against federal employees in their official capacities.

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the Complaint must be dismissed.

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(Complaint at 1).

Accordingly,

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B.

Plaintiff Fails To State An Equal Protection Claim

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The Equal Protection Clause requires the government to treat all

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similarly situated people equally.

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Corrections and Rehabilitation, 707 F.3d 1114, 1123 (9th Cir. 2013).

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This does not mean, however, that all prisoners must receive identical

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treatment and resources.

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claim, a plaintiff typically must allege facts plausibly showing that

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the defendant acted with an intent or purpose to discriminate based upon

(Id.).

Hartman v. California Dept. of

To prevail on an Equal Protection

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the plaintiff’s membership in a protected class.

(Id.).

However,

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courts have recognized successful equal protection claims brought by a

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“class of one” where the plaintiff alleges that he or she has been

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intentionally treated differently from others similarly situated and

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that there is no rational basis for the difference in treatment.

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Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 145

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L. Ed. 2d 1060 (2000).

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Here, Plaintiff claims that Defendants violated his right to equal

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protection when they expunged the other inmates’ incident reports for

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the same offense of which they found Plaintiff guilty and failed to

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restore

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However, as stated above, the government is not obligated to treat all

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inmates identically.

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Defendants acted with the intent to discriminate against Plaintiff or

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explain why there was no rational basis for the difference in treatment

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between Plaintiff and the other inmates.

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must be dismissed with leave to amend.

Plaintiff’s

credits

and

privileges.

(Complaint

at

3-5).

Moreover, the Complaint does not allege that

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Accordingly, the Complaint

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C.

The Complaint Fails To Satisfy Federal Rule Of Civil Procedure 8

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Federal Rule of Civil Procedure 8(a)(2) requires that a complaint

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contain “‘a short and plain statement of the claim showing that the

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pleader is entitled to relief,’ in order to ‘give the defendant fair

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notice of what the . . . claim is and the grounds upon which it rests.’”

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Bell Atlantic Corp. V. Twonbly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167

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L. Ed. 2d 929 (2007).

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required, the Rule does call for sufficient factual matter, accepted as

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true, to state a claim to relief that is plausible on its face.

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Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S. Ct. 1937, 173 L. Ed. 2d

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868.

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

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liable for the misconduct alleged.” (Id.).

Although detailed factual allegations are not

“A claim has facial plausibility when the pleaded factual content

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The Complaint fails to satisfy the requirements of Rule 8.

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example, it is unclear which claims, exactly, Plaintiff is attempting to

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assert against Defendant Castillo because Castillo in fact granted

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Plaintiff the relief he sought by expunging the incident report from

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Plaintiff’s record.

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in the Complaint appear to contradict Plaintiff’s assertions in other

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filings related to the same incident.

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in separate filings that his claims are not Heck-barred because his

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credits and privileges were fully restored following expungement of the

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incident report.

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Complaint, however, Plaintiff states that Defendants “failed to restore

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Plaintiff’s

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privilege[s] [even] after the incident report had been expunged.”

(Id. at 3; id., Exh. C).

Moreover, the allegations

Specifically, Plaintiff asserts

(Dkt. No. 27 at 1; Dkt. No. 29 at 2).

forfeited

goodtime

credits,

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For

visitation,

and

In the

commissary

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(Complaint at 3).

Therefore, the Complaint is confusing because it is

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not clear whether Plaintiff’s sanctions were reversed or what the

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precise injuries that Plaintiff suffered were.

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Furthermore, although Plaintiff appears generally to assert a First

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Amendment claim, Plaintiff is advised that prison regulations that

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infringe on a prisoner’s First Amendment rights are valid so long as

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they are reasonably related to legitimate penological interests. Turner

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v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987).

To

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succeed on a First Amendment claim, a plaintiff must show five elements:

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1) an assertion that the government actor took some adverse action

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against the inmate 2) because of 3) that prisoner’s protected conduct,

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and that such action 4) chilled the inmate’s exercise of his First

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Amendment rights, and 5) the action did not reasonably advance a

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legitimate correctional goal.

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(9th Cir. 2005).

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allege facts address these elements of his claim.

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Complaint must be dismissed with leave to amend.

Rhodes v. Robinson, 408 F.3d 559, 567-68

In any future amended complaint, Plaintiff should
Accordingly, the

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V.

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CONCLUSION

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For the reasons stated above, the Complaint is dismissed with leave

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to amend.

If Plaintiff still wishes to pursue this action, he is

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granted thirty (30) days from the date of this Memorandum and Order

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within which to file a First Amended Complaint.

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complaint, the Plaintiff shall cure the defects described above.

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First Amended Complaint, if any, shall be complete in itself and shall
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In any amended
The

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bear both the designation “First Amended Complaint” and the case number

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assigned to this action.

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previously filed complaint in this matter.

It shall not refer in any manner to any

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In any amended complaint, Plaintiff should confine his allegations

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to those operative facts supporting each of his claims.

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advised that pursuant to Federal Rule of Civil Procedure 8(a), all that

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is required is a “short and plain statement of the claim showing that

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the pleader is entitled to relief.” Plaintiff is strongly encouraged to

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utilize the standard civil rights complaint form when filing any amended

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complaint, a copy of which is attached.

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Plaintiff should identify the nature of each separate legal claim and

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make clear

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separate

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statements concise and to omit irrelevant details.

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for Plaintiff to cite case law or include legal argument.

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also advised to omit any claims for which he lacks a sufficient factual

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basis.

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Defendants or claims not reasonably related to the allegations in the

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Complaint.

what

claims.

specific

factual

Plaintiff

is

In any amended complaint,

allegations
strongly

Plaintiff is

support

encouraged

each
to

of his

keep

his

It is not necessary
Plaintiff is

Furthermore, the First Amended Complaint may not include new

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Plaintiff is explicitly cautioned that failure to timely file a

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First

Amended

Complaint,

or

failure

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described above, will result in a recommendation that this action be

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dismissed with prejudice for failure to prosecute and obey Court orders

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pursuant to Federal Rule of Civil Procedure 41(b). Plaintiff is further

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advised that if he no longer wishes to pursue this action, he may

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voluntarily dismiss it by filing a Notice of Dismissal in accordance
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to

correct

the

deficiencies

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with Federal Rule of Civil Procedure 41(a)(1).

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A form Notice of

Dismissal is attached for Plaintiff’s convenience.

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DATED: April 29, 2013

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/S/
SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE

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