Perkins v. Crum et al

Filing 12

ORDER DISMISSING Complaint for Failure to State a Claim 11 signed by Magistrate Judge Gerald B. Cohn on 7/20/11: This action is DISMISSED in its entirety, WITH PREJUDICE; Clerk to CLOSE Case. (CASE CLOSED)(Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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LONNIE DONELL PERKINS

CASE NO. 1:10-cv-01115-GBC (PC)

Plaintiff,

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ORDER DISMISSING COMPLAINT FOR
FAILURE TO STATE A CLAIM

v.
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R. CRUM, et al.,

(ECF No. 11)

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Defendants.

CLERK TO CLOSE CASE
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SCREENING ORDER
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I.

PROCEDURAL HISTORY

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Plaintiff Lonnie Donell Perkins (“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 June 21, 2010 and consented to Magistrate Judge jurisdiction on July 26, 2010.
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(ECF Nos. 1 & 5.)

No other parties have appeared. Plaintiff’s original complaint was

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dismissed with leave to amend. (ECF No. 10.) Plaintiff filed a First Amended Complaint
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on July 14, 2011. (ECF No. 11.) It is this First Amended Complaint that is now before the
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Court for screening. For the reasons set forth below, the Court finds that Plaintiff has failed
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to state any 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 Fourteenth Amendment right to due process and

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Eighth Amendment right to be free from cruel and unusual punishment. Plaintiff names

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the following individuals as Defendants: R. Crum, Kern Valley State Prison (“KVSP”)

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correctional officer; J.R. Garza, KVSP correctional lieutenant; Everett W. Fischer, special

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agent, Office of Correctional Safety (“OCS”); G. Williams, special agent, OCS; M. Ruff,

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special agent, OCS; and R. Clemons, correctional officer at Los Angeles County State

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Prison.

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Plaintiff alleges as follows: On August 14, 2006, Plaintiff was placed in segregation

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for an investigation into his alleged association with a prison gang. Plaintiff was issued a

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validation packet which included four sources claiming Plaintiff had ties to the prison gang.

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All of the source reports were authored by Defendant Crum: 1) dated May 16, 2006,

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regarding a tattoo on Plaintiff’s chest which was a symbol for the gang; 2) dated June 1,

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2006, based on a review of Plaintiff’s address book which included known gang members;
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3) date June 2, 2006, based on another entry in Plaintiff’s address book of a known gang

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member; and 4) dated July 28, 2006, based on a confidential disclosure from Defendant

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Clemons dealing with letters to and from known gang members which were intercepted by

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prison officials. Plaintiff rebutted these sources in an interview conducted by Defendants

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Crum and Garza on August 16, 2006. During the interview, Plaintiff asked to see a copy

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of a confiscated letter written by Plaintiff which was deemed confidential by officials. He

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did not receive a copy until September 2006.

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Defendant Garza approved and submitted the gang validation packet on September

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5, 2006 knowing that Plaintiff had not received full disclosure of evidence against him.

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Defendants Fischer, Williams, and Ruff were on the committee that reviewed the reports

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and accepted all four sources as valid on October 4, 2006, validating Plaintiff as a gang

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member. As a result, Plaintiff was placed in the security housing unit (“SHU”) for an

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indeterminate sentence.
Plaintiff seeks declaratory and injunctive relief, compensatory and punitive

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damages, and 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 Claim

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Plaintiff alleges that his due process rights under the Fourteenth Amendment were
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violated by Defendants Crum, Clemons, Garza, Fischer, Williams, and Ruff.
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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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cause of action for deprivation of procedural due process, a plaintiff must first establish the

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existence of a liberty interest for which the protection is sought. Id. Liberty interests may

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arise from the Due Process Clause itself or from state law. Hewitt v. Helms, 459 U.S. 460,

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466–68 (1983). The Due Process Clause itself does not confer on inmates a liberty

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interest in being confined in the general prison population instead of administrative

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segregation. See id. With respect to liberty interests arising from state law, the existence

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of a liberty interest created by prison regulations is determined by focusing on the nature

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of the deprivation. Sandin v. Conner, 515 U.S. 472, 481–84 (1995). Liberty interests

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created by prison regulations are limited to freedom from restraint which “imposes atypical

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and significant hardship on the inmate in relation to the ordinary incidents of prison life.”

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Id. at 484. The Court will assume without deciding that Plaintiff has alleged a liberty

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interest in not being validated as a gang member and placed in administrative segregation.

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Placement in administrative segregation, or the Security Housing Unit (“SHU”) if

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done for administrative rather than disciplinary purposes, requires notice to the prisoner,

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an opportunity for the prisoner to submit information, and non-adversarial review of the

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information supporting placement. Toussaint v. McCarthy, 801 F.2d 1080, 1100 (9th Cir.

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1986). A prison gang validation proceeding is subject to the “some evidence” standard

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where it is an administrative strategy rather than a disciplinary action. Bruce v. Ylst, 351

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F.3d 1283, 1287–88 (9th Cir. 2003) (citing Superintendent v. Hill, 472 U.S. 445, 455

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(1985)). There is no independent assessment of witness credibility or re-weighing of

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evidence; rather “the relevant question is whether there is any evidence in the record that

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could support the conclusion.” Hill, 472 U.S. at 455–56.

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Plaintiff argues that Defendants violated his due process rights when they failed to

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notify him that confidential information was placed in his file. Plaintiff also argues that

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Defendants failed to give him all of the required due process during the gang validation

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process. Specifically, Plaintiff argues that he did not receive a fair hearing and that he was

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not allowed to fully rebut the allegations against him because he did not receive a copy of
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the confidential letter until September 2006,

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Based on Plaintiff’s general allegations regarding SHU conditions, the Court will

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assume the existence of a liberty interest in being free from an indeterminate SHU term.

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See Wilkinson v. Austin, 545 U.S. 209, 223–24 (2005) (finding a liberty interest in avoiding

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indefinite confinement in Ohio’s “Supermax” facility). However, there are no facts alleged

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which would support a claim that Plaintiff was assessed an indeterminate SHU term

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without the minimal protections he is due under federal law. Bruce, 351 F.3d at 1287.

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Plaintiff states that he received the notice of the gang affiliation investigation on the same

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day that he was placed in segregation. He describes the four source reports, which means

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he was aware of their contents. He eventually got to see the letter deemed confidential.

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The reports appear to meet the “some evidence” requirement. As currently pleaded,

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Plaintiff received notice of the hearing, notice of what evidence there was against him, and

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he received a hearing. He also was afforded the opportunity to rebut the sources in an

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interview and during the committee review hearing. As pleaded, Plaintiff does not state a

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due process claim.

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Plaintiff was given the appropriate legal standards for stating Fourteenth

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Amendment due process claims in the Court’s prior Screening Order. (ECF No. 10.)

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Plaintiff was specifically informed that he had not stated any facts that suggested any lack

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of due process. In fact, his statements lend themselves toward finding sufficient due

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process. Plaintiff’s amended complaint, while more descriptive as to the evidence against

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him, does not meaningfully address the deficiencies noted by the Court. The Court finds

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that Plaintiff’s due process claims are not capable of being remedied by granting further

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leave to amend.

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B.

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In its Screening Order, the Court noted that Plaintiff was not to add claims to his

Cruel and Unusual Punishment

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amended complaint.

Plaintiff disregarded these instructions and, In his amended

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complaint included an Eighth Amendment claim. Plaintiff alleges that he is being subjected

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to cruel and unusual punishment because he is being housed in the SHU.
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The Eighth Amendment’s prohibition of cruel and unusual punishment requires that

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prison officials take reasonable measures for the safety of inmates. See Farmer v.

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Brennan, 511 U.S. 825, 834 (1994). A prison official violates the Eighth Amendment only

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when two requirements are met: (1) the deprivation alleged is, objectively, sufficiently

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serious, and (2) the official is, subjectively, deliberately indifferent to the inmate’s safety.

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See id.

“[O]nly those deprivations denying ‘the minimal civilized measure of life’s

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necessities,’ are sufficiently grave to form the basis of an Eighth Amendment violation.”

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Wilson v. Seiter, 501 U.S. 294, 298 (1991) (internal citation omitted).

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Prison conditions only rise to the level of cruel and unusual punishment if they

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amount to the deprivation of adequate food, clothing, shelter, sanitation, medical care, or

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personal safety. See Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986). Plaintiff

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must allege that he was denied “the minimal civilized measure of life’s necessities.”

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Nothing in Plaintiff’s complaint suggests that being housed in the SHU can be equated to

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the denial of the minimal civilized measure of life’s necessities. Further, Plaintiff does not

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allege that there was any risk to Plaintiff’s health or safety or that Defendants acted with

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deliberate indifference by purposefully ignoring a known risk to Plaintiff’s health or safety.

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Plaintiff fails to state any claims under the Eighth Amendment based on his placement in

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the SHU. Thus, the Court finds that amendment of this claim would be futile.

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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 against the named Defendants. Under Rule

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15(a) of the Federal Rules of Civil Procedure, leave to amend “shall be freely given when

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justice so requires.” In addition, “[l]eave to amend should be granted if it appears at all

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possible that the plaintiff can correct the defect.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th

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Cir. 2000) (internal citations omitted). However, in this action, Plaintiff filed two complaints

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and received substantial guidance from the Court in its Screening Orders. (ECF Nos. 1,

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10, & 11.) Even after receiving the Court’s guidance, Plaintiff failed to make alterations or

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to include additional facts to address the noted deficiencies. Because of this, the Court
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finds that the deficiencies outlined above are not capable of being cured by amendment,

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and therefore orders that further leave to amend not be granted.

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1915(e)(2)(B)(ii).

28 U.S.C. §

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Accordingly, based on the foregoing, the Court HEREBY ORDERS that this action

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be DISMISSED in its entirety, WITH PREJUDICE, for failure to state a claim upon which

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relief may be granted.

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IT IS SO ORDERED.

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Dated:
1j0bbc

July 20, 2011
UNITED STATES MAGISTRATE JUDGE

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