Holmes v. Scribner et al

Filing 24

FINDINGS and RECOMMENDATIONS Recommending Dismissal of 22 Action, with Prejudice, for Failure to State a Claim Upon which Relief may be Granted signed by Magistrate Judge Gerald B. Cohn on 03/26/2012. Referred to Judge Ishii; Objections to F&R due by 4/30/2012. (Flores, E)

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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)

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Plaintiff,
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v.
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A.K. SCRIBNER, et al.,

FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF ACTION,
WITH PREJUDICE, FOR FAILURE TO
STATE A CLAIM UPON WHICH RELIEF
MAY BE GRANTED

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Defendants.

Doc. 22

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/ OBJECTIONS DUE WITHIN THIRTY DAYS
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Findings and Recommendations

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I. Procedural History, Screening Requirement, and Standard

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On February 9, 2009, Plaintiff Tommy Joe Holmes (“Plaintiff”), a state prisoner proceeding

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pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. Doc. 1. On

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November 29, 2010, the Court issued a screening order, dismissing Plaintiff’s complaint, with leave

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to amend. Doc. 10. On March 16, 2011, Plaintiff filed his first amended complaint. Doc. 15. On May

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10, 2011, the Court issued a screening order, dismissing Plaintiff’s first amended complaint, with

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leave to amend. Doc. 16. On August 31, 2011, Plaintiff filed his second amended complaint. Doc.

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

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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Court must dismiss a complaint, or portion thereof, if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall

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dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a

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claim upon which relief may be 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 pleader

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is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice,” Ashcroft v. Iqbal, 556 U.S. 662, __, 129 S. Ct. 1937, 1949 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and courts “are not required to indulge

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unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009). While

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

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While prisoners proceeding pro se in civil rights actions are still entitled to have their

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pleadings liberally construed and to have any doubt resolved in their favor, the pleading standard is

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now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Under § 1983, Plaintiff must

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demonstrate that each defendant personally participated in the deprivation of his rights. Jones v.

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Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations

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sufficient to state a plausible claim for relief. Iqbal, 129 S. Ct. at 1949-50; Moss v. U.S. Secret

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Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting

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this plausibility standard. Iqbal, 129 S. Ct. at 1949-50; Moss, 572 F.3d at 969.

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Section 1983 provides a cause of action for the violation of constitutional or other federal

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rights by those acting under color of state law. E.g., Patel v. Kent School Dist., 648 F.3d 965, 971

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(9th Cir. 2011); Jones, 297 F.3d at 934. For each defendant named, Plaintiff must show a causal link

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between the violation of his rights and an action or omission of the defendant. Iqbal,129 S. Ct. at

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1949-50; Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554,

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570 (9th Cir. 2009). There is no respondeat superior liability under § 1983, and each defendant may

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only be held liable for misconduct directly attributed to him or her. Iqbal, 129 S. Ct. at 1949-50;

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Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009).
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II. Allegations in Plaintiff’s Second Amended Complaint

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In Plaintiff’s second amended complaint, he names A.K. Scribner, Warden; T. Banks,

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Correctional Lieutenant; A. Pyle, Correctional Counselor; R.R. Lowden, Correctional Captain; D.

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Sheppard-Brooks, Chief Deputy Warden; V. Garcia, Correctional Counselor; M.E. Poulos,

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Chairperson / Chief Deputy Warden; N. Dill, Correctional Captain; D.G. Stockman, Chairperson /

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Chief Deputy Warden; W.J. Hill, Correctional Lieutenant; and C. Cortez, who were employed at

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California State Prison at Corcoran (“CSP-Corcoran”). 2d Am. Compl. at 2-3, Doc. 22.

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Plaintiff alleges that on March 29, 2004, CSP-Corcoran initiated an alleged investigation into

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the attempted alleged murder of Correctional Officers R. Guzman and G. Tamayo. Id. at 4. During

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the course of the investigation, Defendant T. Banks served Plaintiff with a CDC Form 114-D

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Administrative Segregation Unit Placement Notice. Id. The notice stated that Plaintiff was identified

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as an influential who conspired and organized the assault on Officers Guzman and Tamayo. Id.

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Based on this information, Defendant Banks deemed Plaintiff a threat to the safety and security of

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the institution. Id. at 4-5. Defendant Banks placed Plaintiff in administrative segregation, pending

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further investigation. Id. at 5. This placement affected Plaintiff’s work group, privilege group,

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visiting status, and custody level. Id.

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On April 8, 2004, Defendant V. Garcia served Plaintiff with an amended CDC Form 114-D

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Administrative Segregation Unit Placement Notice. Id. The notice stated the same as the prior notice,

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that Plaintiff was identified as an influential who conspired and organized the assault on Officers

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Guzman and Tamayo. Id. The notice added that Plaintiff was not currently charged with the above

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offense, but that information had been received indicating Plaintiff may have been involved in the

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aforementioned conspiracy to assault staff. Id. Defendants did not serve Plaintiff with a CDC Form

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1030 confidential memorandum / form. Id. Between April 8, 2004 and November 10, 2004, Plaintiff

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appeared before Defendants A. Pyle, R.R. Lowden, D. Sheppard-Brooks, M.E. Poulos, N. Dill, D.G.

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Stockman, and W.J. Hill, who recommended transferring Plaintiff to an alternate institution due to

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the seriousness of Plaintiff’s involvement, although Plaintiff did not receive a rules violation report

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(“RVR”) or the confidential memorandum by Defendant C. Cortez, dated March 20, 2004. Id.

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Plaintiff alleges Defendants violated Plaintiff’s Fourteenth Amendment rights under the Due Process
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clause, for their failure to serve Plaintiff with the confidential memorandum, and for recommending

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Plaintiff’s transfer to an alternate institution, although Plaintiff did not receive an RVR. Id.

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For relief, Plaintiff seeks injunctive relief, compensatory damages of $120,000, and punitive
damages of $240,000. Id. at 6.

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III. Legal Standard and Analysis for Plaintiff’s Claims

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A. Violation of State Prison Rules and Regulations

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Plaintiff alleges various violations of state prison rules and regulations. Those violations,

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without more, do not support any claims under § 1983. Ove v. Gwinn, 264 F.3d 817, 824 (9th Cir.

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2001); Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997). Only if the events

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complained of rise to the level of a federal statutory or constitutional violation may Plaintiff pursue

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them under § 1983. Patel, 648 F.3d at 971; Jones, 297 F.3d at 934. Thus, complaints that prison

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officials violated state regulations regarding the inmate appeals process or prison disciplinary

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proceedings, for example, will not support a claim for denial of due process under federal law.

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B. Fourteenth Amendment Due Process

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Plaintiff alleges his placement in administrative segregation and his transfer to an alternate

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institution, without receiving an RVR or the confidential memorandum, violated his right to due

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process.

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The Due Process Clause protects Plaintiff against the deprivation of liberty without the

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procedural protections to which he is entitled under the law. Wilkinson v. Austin, 545 U.S. 209, 221

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(2005). To state a claim, Plaintiff must first identify the interest at stake. Austin, 545 U.S. at 221.

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Liberty interests may arise from the Due Process Clause or from state law. Id. The Due Process

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Clause itself does not confer on inmates a liberty interest in avoiding more adverse conditions of

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confinement, id. at 221-22, and under state law, the existence of a liberty interest created by prison

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regulations is determined by focusing on the nature of the condition of confinement at issue, id. at

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222-23 (citing Sandin v. Conner, 515 U.S. 472, 481-84 (1995)). Liberty interests created by prison

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regulations are generally limited to freedom from restraint which imposes atypical and significant

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hardship on the inmate in relation to the ordinary incidents of prison life. Austin, 545 U.S. at 221

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(citing Sandin, 515 U.S. at 484); Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007).
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Plaintiff has not alleged any facts supporting the existence of a liberty interest in remaining

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free from administrative segregation, which precludes him from bringing a due process claim.

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Wilkinson, 545 U.S. at 221; Sandin, 515 U.S. at 484; May v. Baldwin, 109 F.3d 557, 565 (9th Cir.

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1997). Furthermore, Plaintiff has not shown that he was denied the minimal protections he was due

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under federal law. Wolff v. McDonnell, 418 U.S. 539, 563-71, 94 S.Ct. 2963 (1974); Walker v.

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Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994), abrogated on other grounds by Sandin, 515 U.S. 472.

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Moreover, Plaintiff’s due process claim challenging his transfer to an alternate institution is

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not cognizable because it is well established that prisoners have no constitutional right to

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incarceration in a particular institution. See Olim v. Wakinekona, 461 U.S. 238, 244–48 (1983);

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Meachum v. Fano, 427 U.S. 215, 224 (1976).

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Plaintiff’s due process claim fails because he has not identified the existence of a protected

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liberty interest. Plaintiff’s work group, privilege group, visiting status, custody level, and

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incarceration at a particular prison do not implicate a protected interest, and the absence of an

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identifiable interest precludes the finding of a viable due process claim. Austin, 545 U.S. at 221.

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Accordingly, the Court finds that Plaintiff fails to state a cognizable claim for relief under
§ 1983 based upon the violations of state rules and regulations and due process.

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IV. Conclusion and Recommendation

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Plaintiff’s second amended complaint fails to state any claims upon which relief may be

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granted. Plaintiff was previously notified of the deficiencies in his claims and granted leave to

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amend, but he was unable to cure the deficiencies. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.

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2000); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Based on the record in this case, the

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undersigned recommends that further leave to amend is not warranted.

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Accordingly, pursuant to 28 U.S.C. §§ 1915A and 1915(e), the undersigned HEREBY

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RECOMMENDS that this action be DISMISSED, with prejudice, based on Plaintiff’s failure to state

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any claims upon which relief may be granted under § 1983.

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//

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//

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//
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These Findings and Recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days

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after being served with these Findings and Recommendations, Plaintiff may file written objections

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with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Plaintiff is advised that failure to file objections within the specified time may

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waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th

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Cir. 1991).

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IT IS SO ORDERED.

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Dated:
7j8cce

March 26, 2012
UNITED STATES MAGISTRATE JUDGE

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