McKinney v. Hubbard et al

Filing 13

ORDER DISMISSING COMPLAINT, with Prejudice, for Failure to State a Claim; ORDER that Dismissal is Subject to 28 U.S.C. § 1915(G), signed by Magistrate Judge Sandra M. Snyder on 10/14/2011. CASE CLOSED. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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GREGORY McKINNEY,

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Plaintiff,

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v.
S. HUBBARD, et al.,

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CASE NO. 1:09-cv-02096-SMS PC
ORDER DISMISSING COMPLAINT, WITH
PREJUDICE, FOR FAILURE TO STATE A
CLAIM
(ECF No. 10)

Defendants.

ORDER THAT DISMISSAL IS SUBJECT
/ TO 28 U.S.C. § 1915(G)

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I.

Screening Requirement

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Plaintiff Gregory McKinney (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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

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December 2, 2009. On September 16, 2010, Plaintiff’s complaint was dismissed, with leave to

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amend for failure to state a claim. (ECF No. 9.) Currently pending before the Court is the first

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amended complaint, filed October 8, 2010. (ECF No. 10.)

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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 “fails to state a claim on which relief may be granted,” or that “seeks

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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

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In determining whether a complaint states a claim, the Court looks to the pleading standard

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under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain “a short and

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plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
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“[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it

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demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v.

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Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555

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(2007)).

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Under section 1983, Plaintiff must demonstrate that each defendant personally participated

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in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires

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the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S. Ct.

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at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). “[A] complaint [that]

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pleads facts that are ‘merely consistent with’ a defendant’s liability . . . ‘stops short of the line

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between possibility and plausibility of entitlement to relief.’” Iqbal, 129 S. Ct. at 1949 (quoting

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Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations

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contained in a complaint, a court need not accept a plaintiff’s legal conclusions as true. Iqbal, 129

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S. Ct. at 1949. “Threadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Id. (quoting Twombly, 550 U.S. at 555).

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II.

Discussion

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Plaintiff is in the custody of the California Department of Corrections and Rehabilitation

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(“CDCR”) and is housed at Kern Valley State Prison. Aside from the fact that the first two pages

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of the amended complaint are handwritten, Plaintiff’s first amended complaint is identical to his

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original complaint. The factual allegations have been set forth in the order dismissing Plaintiff’s

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complaint with leave to amend, filed September 16, 2010. (ECF No. 9.) This action is brought

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against Defendants Susan Hubbard, Mike Knowles, N. Dill, G. R. Hudson, and C. Waddle alleging

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violations of the Sixth, Eighth, and Fourteenth Amendments. Plaintiff is seeking declaratory relief

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and monetary damages.

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A.

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The Sixth Amendment provides for the rights of an individual in a criminal prosecution.

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Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights

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due a defendant in such proceedings does not apply.” Wolff v. McDonnell, 418 U.S. 539, 556

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(1974). Plaintiff’s procedural rights in the disciplinary hearing setting are defined by the Due

Sixth Amendment

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Process Clause of the Fourteenth Amendment, not by the Sixth Amendment. To the extent Plaintiff

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is attempting to allege violations during his rule violation hearing, they do not state a cognizable

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claim under the Sixth Amendment.

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B.

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To prove a violation of the Eighth Amendment the plaintiff must “objectively show that he

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was deprived of something ‘sufficiently serious,’ and make a subjective showing that the deprivation

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occurred with deliberate indifference to the inmate’s health or safety.” Thomas v. Ponder, 611 F.3d

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1144, 1150 (9th Cir. 2010)(citations omitted); see also Richardson v. Runnels, 594 F.3d 666, 672

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(9th Cir. 2010). Deliberate indifference requires a showing that “prison officials were aware of a

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“substantial risk of serious harm” to an inmates health or safety and that there was no “reasonable

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justification for the deprivation, in spite of that risk.”. Id.(quoting Farmer v. Brennan, 511 U.S. 825,

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837, 844 (1994). The circumstances, nature, and duration of the deprivations are critical in

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determining whether the conditions complained of are grave enough to form the basis of a viable

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Eighth Amendment claim. ” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2006).

Eighth Amendment

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Plaintiff alleges that the policy of depriving an inmate of access to the exercise yard as a

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disciplinary sanction is cruel and unusual punishment. However, prison officials may restrict

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outdoor exercise on the basis of weather, unusual circumstances, or disciplinary needs. See Spain

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v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979); LeMaire v. Maass, 12 F.3d 1444, 1457-58 (9th Cir.

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1993) (Where the loss of yard privilege was a result of plaintiff’s disciplinary violation, the

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deprivation of exercise for most of his five year sentence did not rise to a constitutional violation

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because he could still exercise in his cell). Denying Plaintiff access to the exercise yard after he was

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found to have committed a rule violation does not, by itself, constitute cruel and unusual

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punishment.

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Plaintiff also alleges that his rights were violated because he was deprived of the exercise

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yard for ninety days causing him to suffer muscle cramps, headaches, stress, and anxiety after being

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convicted of possession of a controlled substance during a rule violation hearing. Exercise is a basic

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need protected by the Eighth Amendment. Thomas, 611 F.3d at 1151. To deprive a prisoner of

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outdoor exercise during a period of long term, continuous segregation would violate the Eighth
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Amendment rights of the plaintiff. Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996).
However, the Court notes that Plaintiff’s complaint does not allege that he was denied

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outdoor exercise, but that he was denied access to the exercise yard. The order dismissing the

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complaint addressed the issue that it was unclear from Plaintiff’s allegations if he was being denied

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outdoor exercise and he was informed that he “must clearly allege that he was deprived of all forms

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of outdoor exercise, not just yard privileges.” (Order Dismissing Compl. 8:24-9:3, ECF No. 9.)

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Since Plaintiff has merely submitted a duplicate pleading, he has failed to correct the deficiencies

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identified in the prior order. Plaintiff’s allegation of access to the exercise yard is insufficient to state

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a cognizable claim for deprivation of exercise in violation of the Eighth Amendment.

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C.

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Plaintiff claims that his due process rights were violated because he lost ninety days of

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privileges and the California Code of Regulations only permits Plaintiff to lose thirty days for the

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type of offense he was charged with committing. As found in the prior order “Plaintiff’s contention

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that Defendants were not permitted to punish him with more than thirty days of lost privileges is not

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supported by a plain reading of the California regulations cited by Plaintiff.” (Order Dismissing

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Comp. 6:4-6, ECF No. 9.)

Due Process

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“Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply

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of rights due a defendant in such proceedings does not apply.” Wolff, 418 U.S. at 556. Plaintiff has

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not alleged that he was deprived of any of the five minimal procedural requirements set forth in

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Wolff, as described in the prior order. (Order Dismissing Comp. 4:14-25, ECF No. 9.) Plaintiff has

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not corrected the discrepancies found in the prior order and has failed to state a cognizable claim for

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a violation of his due process rights.

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D.

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Plaintiff’s conclusory allegations that Defendants acted “for wanton and malicious purposes

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based on race and [his]status as prisoner” are insufficient to state a cognizable claim. As addressed

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in the prior order, Plaintiff may not state a claim based upon a prisoner being treated differently than

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a non-prisoner, and his complaint is devoid of any factual allegations to show that he was

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discriminated against because of his race, Lee v. City of Los Angeles, 250 F.3d 668, 686 (2001);

Equal Protection

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Barren v. Harrington, 152 F.3d 1193, 1194 (1998). Plaintiff fails to allege any facts supporting a

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claim that he was intentionally discriminated against, Lee, 250 F.3d at 686, or treated differently than

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other similarly situated inmates, Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (2005); Village

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of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).

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III.

Conclusion and Order

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Plaintiff’s first amended complaint fails to state a claim upon which relief may be granted

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under section 1983. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend ‘shall

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be freely given when justice so requires,’” Fed. R. Civ. P. 15(a), and “[l]eave to amend should be

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granted if it appears at all possible that the plaintiff can correct the defect,” Lopez v. Smith, 203

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F.3d 1122, 1130 (9th Cir. 2000) (internal citations omitted). However, in this action Plaintiff has

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been granted an opportunity to amend the complaint, with guidance by the Court. Plaintiff submitted

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an amended complaint without alleging facts against any of the defendants sufficient to state a claim

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under § 1983. The Court finds that the deficiencies outlined above are not capable of being cured

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by amendment, and therefore further leave to amend should not be granted. 28 U.S.C. §

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1915(e)(2)(B)(ii); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).

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Accordingly, pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e), this action is

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HEREBY DISMISSED, with prejudice, based on Plaintiff’s failure to state a claim upon which relief

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may be granted under section 1983 and the Clerk’s Office shall enter judgment. This dismissal is

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subject to the “three-strikes” provision set forth in 28 U.S.C. § 1915(g). Silva v. Vittorio, No. 08-

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15620, 2011 WL 4436248, at *4 (9th Cir. Sept. 26, 2011).

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IT IS SO ORDERED.
Dated:
icido3

October 14, 2011

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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