Holmes v. Scribner et al

Filing 16

FIRST AMENDED COMPLAINT DISMISSED WITH LEAVE TO AMEND 15 , signed by Magistrate Judge Gerald B. Cohn on 5/10/11: Second Amended Complaint due by 6/13/2011. (Attachments: # 1 Amended Complaint (blank form))(Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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TOMMY JOE HOLMES,

CASE NO. 1:09-cv-00245-AWI-GBC (PC)

Plaintiff,

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FIRST AMENDED COMPLAINT
DISMISSED WITH LEAVE TO AMEND

v.

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(ECF No. 15)
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A. K. SCRIBNER, et al.,
SECOND AMENDED COMPLAINT DUE
WITHIN THIRTY DAYS

Defendants.

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SCREENING ORDER

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I.

PROCEDURAL HISTORY

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Plaintiff Tommy Joe Holmes (“Plaintiff”) is a state prisoner proceeding pro se and

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in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this

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action on February 2, 2009. (ECF No. 1.) Plaintiff’s original complaint was dismissed with

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leave to amend for failure to state a cognizable claim. (ECF No. 10.) Plaintiff filed a First

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Amended Complaint on March 16, 2011. (ECF No. 15.) No other parties have appeared.

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It is this First Amended Complaint that is now before the Court for screening. For

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the reasons set forth below, the Court finds that Plaintiff has again failed to state any

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claims upon which relief may be granted.

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II.

SCREENING REQUIREMENTS

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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 officer or 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 the prisoner has
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raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which

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

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such relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion

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thereof, that may have been paid, the court shall dismiss the case at any time if the court

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determines that . . . the action or appeal . . . fails to state a claim upon which relief may be

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granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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A complaint 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). Detailed factual allegations are

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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by

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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949

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(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set

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forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its

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face.’” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual

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allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.

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III.

SUMMARY OF COMPLAINT

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Plaintiff alleges violations of his Eighth, Fourteenth, and First Amendment rights.

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Plaintiff names the following individuals as Defendants: A. K. Scribner, D. Stockman, D.

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Sheppard-Brooks, M. E. Poulos, R. R. Lowden, N. Dill, V. Garcia, W. J. Hill, H. Cervantez,

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A. Pyle, T. Banks, and C. Cortez.

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Plaintiff alleges as follows: On March 29, 2004, Plaintiff was placed in administrative

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segregation (“ad-seg”) and given a copy of the ad-seg placement order which claimed that

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Plaintiff had conspired to murder/assault prison officials. On April 5, 2004, Plaintiff was

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brought before Defendant Lowden for ad-seg placement review on the charge of

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conspiracy to assault a prison official. On April 7, 2004, Plaintiff appeared before the

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institution classification committee (“ICC”) for the initial review of his ad-seg placement.

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ICC retained Plaintiff in ad-seg pending an investigation, to be reviewed again in 90 days

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by the classification staff representative. On April 12, 2004, Plaintiff was again brought

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before Defendant Lowden for ad-seg placement review and he received a copy of the
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confidential report identifying him in the conspiracy to murder. On April 13 and July 14,

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2004, Plaintiff again appeared before the ICC for a review of his ad-seg placement. ICC

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again retained Plaintiff in ad-seg pending an investigation, to be reviewed again in 90 days

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by the classification staff representative.

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On August 17, 2004, the investigation was complete. On October 20, 2004, Plaintiff

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appeared before the ICC for review of a charge of threatening staff and transfer

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consideration.1 On November 5, 2004, Plaintiff was issued an ad-seg placement order

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authored by Defendant Hill, which stated that Plaintiff had been found guilty of attempted

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murder on a peace officer. On November 10, 2004, Plaintiff again appeared before the

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ICC for review of his placement for threatening staff/transfer consideration.

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Plaintiff was retained in ad-seg for approximately one year.

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Plaintiff seeks injunctive relief, compensatory, punitive, and declaratory damages,

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attorney fees, and costs.

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IV.

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ANALYSIS
The Civil Rights Act under which this action was filed provides:
Every person who, under color of [state law] . . . subjects, or
causes to be subjected, any citizen of the United States . . . to
the deprivation of any rights, privileges, or immunities secured
by the Constitution . . . shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for
redress.

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42 U.S.C. § 1983. “Section 1983 . . . creates a cause of action for violations of the federal
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Constitution and laws.” Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir.
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1997) (internal quotations omitted).
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A.

Due Process

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Plaintiff alleges that his due process rights were violation by Defendants.
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The Due Process Clause protects prisoners from being deprived of liberty without
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due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a
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This appears to be a different charge than the assault/m urder charge as the threatening charge
appears to have occurred in 2003.

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cause of action for deprivation of due process, a plaintiff must first establish the existence

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of a liberty interest for which the protection is sought.

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circumstances create liberty interests which are protected by the Due Process Clause.”

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Sandin v. Conner, 515 U.S. 472, 483–84 (1995). Liberty interests created by state law are

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generally limited to freedom from restraint which “imposes atypical and significant hardship

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on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484.

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Where prison conditions are at issue, a change in conditions so severe as to affect

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the sentence imposed in an unexpected manner implicates the Due Process Clause itself,

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whether or not such change is authorized by state law. Id. at 484. Neither changes in

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conditions relating to classification and reclassification nor the hardship associated with

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administrative segregation, such as loss of recreational and rehabilitative programs or

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confinement to one’s cell for a lengthy period of time, violate the Due Process Clause itself.

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See Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987) (classification); Toussaint

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v. McCarthy, 801 F.2d 1080, 1091-92 (9th Cir. 1986) (administrative segregation).

“States may under certain

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Additionally, the decision to confine an inmate to administrative confinement only

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requires “some evidence” in support of the decision. Toussaint, 801 F.2d at 1105. When

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an inmate is confined to administrative segregation due process requires that he be

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informed of the charges against him or the reason for his segregation, an informal

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nonadversary hearing must be held within a reasonable time, and the inmate must be

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allowed to present his views. Id. at 1100.

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Plaintiff again fails to allege sufficient facts to state a cognizable due process claim.

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Plaintiff states that he was never charged or found guilty of a rule violation and that he was

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held in administrative segregation for a year without due process of law. Plaintiff also

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claims that the provisions of Title 15 of the California Code of Regulations and the

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California Administrative Code were violated because he did not receive notice of the

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evidence provided against him, did not receive an incident report, and did not receive

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notice of the violation.

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Plaintiff’s repeated allegations that he did not receive notice are contradicted by his
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own statements in his statement of the facts as well as the documents he has attached to

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his Complaint.2 Exhibit A states that Plaintiff received notice of the reasons for ad-seg

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placement on March 29, 2004, the date of his placement, and that he refused to sign it.

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(ECF No. 15, pp. 33-34; Pl.’s 1st Am. Compl. ex. A.) Exhibits B, C, D, G, & H state that

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Plaintiff received notice of the ICC hearings for review of his placement 72 hours before

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each hearing was held and that he refused to sign other notices. (Id. at 35-38, 40, 42, 48-

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50, 52; Id. at ex. B, C, D, G, H.) Exhibit I states that Plaintiff did not receive notice of

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several things. (Id. at 54; Id. at ex. I.) However, this appears to be in reference to the

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threatening staff charge.

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It appears that there were perhaps some anomalies in Plaintiff’s file; however, it

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does not appear that Plaintiff was deprived any of his due process rights. It appears from

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a cursory review of the remaining attachments that Plaintiff was present at his hearings,

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usually disagreed with the findings and conclusion, and was informed of his appeal rights.

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It also appears that he received notice of his hearings, and refused to sign the documents.

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Thus, Plaintiff has not stated a cognizable due process claim. Plaintiff is given leave to

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amend and attempt to state such a claim. Plaintiff must keep in mind the above stated

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legal standards. He must describe in greater detail what process he thinks he was

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deprived, how it was deprived, and attribute the deprivation to a named Defendant.

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B.

Retaliation

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Plaintiff states that he was being retaliated against by Defendants.

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“Within the prison context, a viable claim of First Amendment retaliation entails five

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basic elements: (1) An assertion that a state actor took some adverse action against an

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inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled

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the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably

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advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th

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Cir. 2005).

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A Court m ay disregard factual allegations that are contradicted by exhibits attached to the
com plaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987).

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It is difficult to determine what protected action Plaintiff alleges retaliation for.

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Plaintiff does state that he filed a grievance. However, it appears that this grievance was

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filed after the allegedly retaliatory adverse actions (false charges, deprivation of due

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process, and, ultimately, a transfer) occurred. As currently pleaded, the Court can not

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determine what, if any, protected conduct Plaintiff was attempting. The Court will give

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Plaintiff leave to amend this claim. In the amended complaint, Plaintiff should keep in mind

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the following standards.

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A grievance is a protected action under the First Amendment. Valandingham v.

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Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989). Being transferred is an adverse action

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sufficient to meet the standard. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). Here,

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Plaintiff fails to allege that he was performing some kind of protected conduct.

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The second element of a prisoner retaliation claim focuses on causation and motive.

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See Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009). A plaintiff must show that his

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protected conduct was a “‘substantial’ or ‘motivating’ factor behind the defendant’s

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conduct.” Id. (quoting Morgan, 874 F.2d at 1314). Although it can be difficult to establish

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the motive or intent of the defendant, a plaintiff may rely on circumstantial evidence. Bruce

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v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003) (finding that a prisoner established a triable

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issue of fact regarding prison officials’ retaliatory motives by raising issues of suspect

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timing, evidence, and statements); Hines v. Gomez, 108 F.3d 265, 267-68 (9th Cir. 1997);

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Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995) (“timing can properly be considered as

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circumstantial evidence of retaliatory intent”). Here, Plaintiff fails to allege any facts related

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to causation or motive. Plaintiff also fails to attribute the retaliation to a named Defendant.

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With respect to the fourth prong, “[it] would be unjust to allow a defendant to escape

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liability for a First Amendment violation merely because an unusually determined plaintiff

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persists in his protected activity . . . .” Mendocino Envtl. Ctr. v. Mendocino County, 192

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F.3d 1283, 1300 (9th Cir. 1999). The correct inquiry is to determine whether an official’s

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acts would chill or silence a person of ordinary firmness from future First Amendment

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activities. Rhodes, 408 F.3d at 568-69 (citing Mendocino Envtl. Ctr., 192 F.3d at 1300).
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Here, the alleged actions of Defendants would chill or silence a person of ordinary firmness

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from pursuing First Amendment activities. Thus, Plaintiff has met the fourth prong for a

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retaliation claim.

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With respect to the fifth prong, a prisoner must affirmatively allege that “the prison

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authorities’ retaliatory action did not advance legitimate goals of the correctional institution

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or was not tailored narrowly enough to achieve such goals.” Rizzo v. Dawson, 778 F.2d

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527, 532 (9th Cir. 1985). This is not a high burden to reach. See id. (prisoner’s allegations

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that search was arbitrary and capricious sufficient to satisfy this inquiry). Plaintiff does not

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address this prong at all. However, it appears to the Court that the determination that

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Plaintiff was a threat to the safety of the institution could be a legitimate penological basis

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for a transfer.

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As stated, Plaintiff has failed to satisfy all elements of a retaliation claim. Plaintiff
will be given one additional opportunity to amend to attempt to state such a claim.

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C.

Cruel and Unusual

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Plaintiff alleges that he was subjected to cruel and unusual punishment during his

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placement in ad-seg because he was only allowed out of his cell for three hours a day and

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was not allowed outdoor exercise, sunshine, or fresh air.

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The Eighth Amendment’s prohibition against cruel and unusual punishment protects

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prisoners from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d

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1041, 1045 (9th Cir. 2006) (citing Farmer v. Brennan, 511 U.S. 825, 832 (1994)). Prison

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officials therefore have a “duty to ensure that prisoners are provided with adequate shelter,

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food, clothing, sanitation, medical care, and personal safety.” Johnson v. Lewis, 217 F.3d

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726, 731 (9th Cir. 2000) (citations omitted). To establish a violation of this duty, a prisoner

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must satisfy both an objective and subjective component. See Wilson v. Seiter, 501 U.S.

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294, 298 (1991). First, a prisoner must demonstrate an objectively serious deprivation, one

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that amounts to the denial of “the minimal civilized measures of life’s necessities .” Keenan

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v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996) (quoting Rhodes v. Chapman, 452 U.S. 337,

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346 (1981)). In determining whether a deprivation is sufficiently serious, a court must
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consider “the circumstances, nature, and duration” of the deprivation. Johnson, 217 F.3d

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at 731. “The more basic the particular need, the shorter the time it can be withheld.”

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Hoptowit v. Ray, 682 F.2d 1237, 1259 (9th Cir. 1982).

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Second, a prisoner must also demonstrate that prison officials acted with a

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sufficiently culpable state of mind, that of “deliberate indifference.” Wilson, 501 U.S. at

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303; Johnson, 217 F.3d at 733. A prison official is liable for denying an inmate humane

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conditions of confinement only if “the official knows of and disregards an excessive risk to

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inmate health and safety; the official must both be aware of facts from which the inference

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could be drawn that a substantial risk of serious harm exists, and he must also draw the

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inference.” Farmer, 511 U.S. at 837.

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Plaintiff alleges that Defendants Scribner, Stockman, Sheppard-Brooks, Poulos,

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Lowden, Dill, Garcia, Hill, Cervantez, Pyle, Banks, and Cortez violated his Eighth

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Amendment rights by depriving him of outdoor exercise, fresh air, and sunlight. Plaintiff

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states that he was confined to his cell for 22 hours a day for months. He claims that this

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and his isolation caused him to suffer mental anguish, emotional distress, insomnia,

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muscle atrophy, fatigue, stomach and lower back pain, loss of appetite, and hallucinatory

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symptoms.

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“[S]ome form of regular outdoor exercise is extremely important to the psychological

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and physical well being of [a prisoner].” Spain v. Procunier, 600 F.2d 189, 199 (9th Cir.

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1979). Thus, depriving a prisoner of outdoor exercise for extended, continuous periods of

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time may constitute a violation of the Eighth Amendment. See Lopez v. Smith, 203 F.3d

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1122, 1132-33 (9th Cir. 2000) (complete denial of outdoor exercise for six and a half weeks

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satisfies the Eighth Amendment’s objective requirement); Keenan v. Hall, 83 F.3d 1083,

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1089 (9th Cir. 1996) (defendants not entitled to summary judgment where prisoner

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produced evidence showing a deprivation of outdoor exercise for a six month period).

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Plaintiff makes one statement that he was deprived outdoor exercise. He fails to

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describe this allegation sufficiently for the Court to make a determination. Plaintiff does not

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state for how long he was deprived outdoor exercise, if it was a continuous deprivation,
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nor does Plaintiff explain how the Defendants listed above are responsible for this conduct.

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Thus, this claim fails. Plaintiff will be given leave to amend and attempt to state such a

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claim.

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D.

Personal Participation and Supervisory Liability

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Plaintiff does not include several of the named Defendants in the statement of the

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case. Plaintiff could be arguing that some of these Defendants are liable for the conduct

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of his or her subordinates as they were not present and did not participate in the

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complained of conduct as currently described by Plaintiff.

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Under Section 1983, Plaintiff must demonstrate that each named Defendant

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personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930,

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934 (9th Cir. 2002). The Supreme Court has emphasized that the term “supervisory

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liability,” loosely and commonly used by both courts and litigants alike, is a misnomer.

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Iqbal, 129 S.Ct. at 1949.

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unconstitutional conduct of their subordinates under a theory of respondeat superior.” Id.

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at 1948. Rather, each government official, regardless of his or her title, is only liable for

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his or her own misconduct, and therefore, Plaintiff must demonstrate that each defendant,

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through his or her own individual actions, violated Plaintiff’s constitutional rights. Id. at

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1948-49.

“Government officials may not be held liable for the

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When examining the issue of supervisor liability, it is clear that the supervisors are

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not subject to vicarious liability, but are liable only for their own conduct. Jeffers v. Gomez,

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267 F.3d 895, 915 (9th Cir. 2001); Wesley v. Davis, 333 F.Supp.2d 888, 892 (C.D.Cal.

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2004). In order to establish liability against a supervisor, a plaintiff must allege facts

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demonstrating (1) personal involvement in the constitutional deprivation, or (2) a sufficient

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causal connection between the supervisor’s wrongful conduct and the constitutional

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violation. Jeffers, 267 F.3d at 915; Wesley, 333 F.Supp.2d at 892. The sufficient causal

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connection may be shown by evidence that the supervisor implemented a policy so

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deficient that the policy itself is a repudiation of constitutional rights.

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F.Supp.2d at 892 (internal quotations omitted). However, an individual’s general
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Wesley, 333

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responsibility for supervising the operations of a prison is insufficient to establish personal

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involvement. Id. (internal quotations omitted).
Supervisor liability under Section 1983 is a form of direct liability.

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Munoz v.

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Kolender, 208 F.Supp.2d 1125, 1149 (S.D.Cal. 2002). Under direct liability, Plaintiff must

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show that Defendant breached a duty to him which was the proximate cause of his injury.

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Id. “‘The requisite causal connection can be established . . . by setting in motion a series

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of acts by others which the actor knows or reasonably should know would cause others to

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inflict the constitutional injury.’” Id. (quoting Johnson v. Duffy, 588 F.2d 740, 743-744 (9th

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Cir. 1978)).

However, “where the applicable constitutional standard is deliberate

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indifference, a plaintiff may state a claim for supervisory liability based upon the

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supervisor’s knowledge of and acquiescence in unconstitutional conduct by others.” Star

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v. Baca, ___ F.3d ___, 2011 WL 477094, *4 (9th Cir. Feb. 11, 2011).

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Plaintiff has not alleged facts demonstrating that all of the named Defendants

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personally acted to violate his rights. Plaintiff needs to specifically link each Defendant to

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a violation of his rights. Plaintiff shall be given one additional opportunity to file an

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amended complaint curing the deficiencies in this respect.

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V.

CONCLUSION AND ORDER

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The Court finds that Plaintiff’s First Amended Complaint fails to state any Section

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1983 claims upon which relief may be granted. The Court will provide Plaintiff time to file

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an amended complaint to address the potentially correctable deficiencies noted above.

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See Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). In his Amended Complaint,

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Plaintiff must demonstrate that the alleged incident or incidents resulted in a deprivation

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of his constitutional rights. Iqbal, 129 S.Ct. at 1948-49. Plaintiff must set forth “sufficient

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factual matter . . . to ‘state a claim that is plausible on its face.’” Iqbal, 129 S.Ct. at 1949

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(quoting Twombly, 550 U.S. at 555). Plaintiff must also demonstrate that each defendant

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personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930,

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934 (9th Cir. 2002).

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Plaintiff should note that although he has been given the opportunity to amend, it
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is not for the purposes of adding new defendants or claims. Plaintiff should focus the

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amended complaint on claims and defendants relating solely to issues arising out of the

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issues described herein.

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Finally, Plaintiff is advised that Local Rule 220 requires that an amended complaint

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be complete in itself without reference to any prior pleading. As a general rule, an

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amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55,

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57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no longer

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serves any function in the case. Therefore, in an amended complaint, as in an original

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complaint, each claim and the involvement of each defendant must be sufficiently alleged.

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The amended complaint should be clearly and boldly titled “Second Amended Complaint,”

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refer to the appropriate case number, and be an original signed under penalty of perjury.

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Based on the foregoing, it is HEREBY ORDERED that:

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Plaintiff’s complaint is dismissed for failure to state a claim, with leave to file

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an amended complaint within thirty (30) days from the date of service of this

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order;
2.

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and refer to the case number 1:09-cv-245-AWI-GBC (PC); and

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3.

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If Plaintiff fails to comply with this order, this action will be dismissed for
failure to state a claim upon which relief may be granted.

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Plaintiff shall caption the amended complaint “Second Amended Complaint”

IT IS SO ORDERED.
Dated:
1j0bbc

May 10, 2011
UNITED STATES MAGISTRATE JUDGE

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