Hysell v. Schwarzeneggar, et al.

Filing 10

ORDER DISMISSING CASE WITH LEAVE TO AMEND, signed by Magistrate Judge Gerald B. Cohn on 7/6/2011. Amended Complaint Due Within Thirty (30) Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DOUGLAS WILLIAM HYSELL,

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Plaintiff,
v.

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CASE NO.

1:10-cv-01233-AWI-GBC (PC)

COMPLAINT DISMISSED WITH LEAVE TO
AMEND

ARNOLD SCHWARZENEGGER, et al., (ECF No. 1)

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Defendants.

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AMENDED COMPLAINT DUE WITHIN
/ THIRTY DAYS

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SCREENING ORDER

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I.

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PROCEDURAL HISTORY
Plaintiff Douglas William Hysell (“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 July 8, 2010. (ECF No. 1.) No other parties have appeared.

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Plaintiff’s Complaint is now before the Court for screening. For the reasons stated

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below, the Court finds that Plaintiff has not stated a claim upon which relief may be

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granted.

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II.

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SCREENING REQUIREMENTS
The Court is required to screen complaints brought by prisoners seeking relief

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.

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SUMMARY OF COMPLAINT
Plaintiff makes numerous allegations of constitutional violations including, but not

limited to: being subjected to cruel and unusual punishment and receiving inadequate

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healthcare, both in violation of the Eighth Amendment; denial of access to the courts;

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denial of right to practice chosen religion; due process violations; property violations; equal

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protection violations; etc. Plaintiff also makes claims under 18 U.S.C. § 1961 et seq. and

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18 U.S.C. § 4.

Plaintiff lists the following individuals as Defendants: Arnold

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Schwarzenegger, Jerry Brown, Jr., Fred Aguiar, John Chiamg, Michael A. Ramos, Julie

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Nauman, Debra Bowen, Mathew Cate, Scott Kernan, Nola Grannis, M. Hodges Wilkins,

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J. A. Herrera, James Yates, Christine Hudson Huckabay, P. D. Brazelton, E. H. Beels,

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Dana Allen, Darrin V. Huckabay, Nathaniel Greens, James Wooded, G. Phelan, James

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Buttle, Paul Soares, Jose Andrade, Alfonso Santos, Michael Steele, Roberto Rodriguez,

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Mary Gellerson, November L. Erickson, Wendy K. Myers, Jerry Herman, Katheryn Mitchell,

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William H. Stephens, Marin County Risk Manager, Does 1 through 100, the State of

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California, County of Marin, California Department of Corrections and Rehabilitation, and

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Pleasant Valley State Prison.

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The Court is unable to determine where or when many of the complained of events

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occurred as Plaintiff’s Complaint is more of a list of complaints than a description of certain

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events or incidents attributed to specific Defendants.

It appears that the incidents

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discussed herein primarily occurred at either Mule Creek State Prison or Pleasant Valley
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State Prison.
Plaintiff seeks compensatory damages and injunctive relief.

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IV.

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
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redress.
42 U.S.C. § 1983. “Section 1983 . . . creates a cause of action for violations of the federal
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.

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At several junctures in the Complaint, Plaintiff appears to be alleging that his right

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to due process was violated. Plaintiff refers to sham hearings where he was not allowed

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due process, the taking of property without due process, and his placement in

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Due Process

administrative segregation (“ad-seg”), among other claims.

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1.

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Hearings

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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 due process, a plaintiff must first establish the existence

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of a liberty interest for which the protection is sought. Wilkinson v. Austin, 545 U.S. 209,

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221 (2005). “States may under certain circumstances create liberty interests which are

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protected by the Due Process Clause.” Sandin v. Conner, 515 U.S. 472, 483-84 (1995).

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Liberty interests created by state law are generally limited to freedom from restraint which

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“imposes atypical and significant hardship on the inmate in relation to the ordinary incidents

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of prison life.” Id. at 484.

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“Prison disciplinary proceedings are not part of a criminal prosecution, and the full
panoply of rights due a defendant in such proceedings does not apply.” Wolff, 418 U.S.

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at 556.

With respect to prison disciplinary proceedings, the minimum procedural

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requirements that must be met are: (1) written notice of the charges; (2) at least 24 hours
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between the time the prisoner receives written notice and the time of the hearing, so that

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the prisoner may prepare his defense; (3) a written statement by the fact finders of the

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evidence they rely on and reasons for taking disciplinary action; (4) the right of the prisoner

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to call witnesses and present documentary evidence in his defense, when permitting him

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to do so would not be unduly hazardous to institutional safety or correctional goals; and (5)

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legal assistance to the prisoner where the prisoner is illiterate or the issues presented are

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legally complex. Id. at 563-71. As long as the five minimum Wolff requirements are met,

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due process has been satisfied. Walker v. Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994).

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“When prison officials limit a prisoner’s right to defend himself they must have a

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legitimate penological interest.” Koenig v. Vannelli, 971 F.2d 422, 423 (9th Cir. 1992) (per

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curiam) (concluding that prisoners do not have a right to have an independent drug test

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performed at their own expense). The right to call witnesses may legitimately be limited

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by “the penological need to provide swift discipline in individual cases . . . [or] by the very

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real dangers in prison life which may result from violence or intimidation directed at either

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other inmates or staff.” Ponte v. Real, 471 U.S. 491, 495 (1985); see also Mitchell v.

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Dupnik, 75 F.3d 517, 525 (9th Cir. 1996); Koenig, 971 F.2d at 423; Zimmerlee v. Keeney,
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831 F.2d 183, 187-88 (9th Cir. 1987) (per curiam).
“[T]he requirements of due process are satisfied if ‘some evidence’ supports the

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decision of the hearing officer or the prison disciplinary board.”

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472 U.S. 445, 455 (1985); see also Touissaint v. McCarthy, 926 F.2d 800, 802-03 (9th Cir.

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Superintendent v. Hill,

1991); Bostic v. Carlson, 884 F.2d 1267, 1269-70 (9th Cir. 1989); Jancsek, III v. Oregon

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bd. Of Parole, 833 F.2d 1389, 1390 (9th Cir. 1987); Cato v. Rushen, 824 F.2d 703, 705
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(9th Cir. 1987); see especially Burnsworth v. Gunderson, 179 F.3d 771, 774-74 (9th Cir.
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1999) (where there is no evidence of guilt it may be unnecessary to demonstrate existence

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of liberty interest.). This standard is not particularly stringent and the relevant inquiry is

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whether “there is any evidence in the record that could support the conclusion reached .

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. . .” Hill, 472 U.S. at 455-56.
Plaintiff alleges that he was not allowed to call witnesses or present defenses, that

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the officials conducting the hearings were biased, and that the hearings were shams.

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However, Plaintiff fails to state any due process claim. Plaintiff does not state any facts

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surrounding the hearings other than that they were held and that he was found guilty. He

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does not state what he was charged with, if he received notice, when any of the incidents

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occurred, etc. Further, Plaintiff does not attribute most of the due process violations to any
named Defendants.

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In one instance, Plaintiff states that Defendant Steele presided over one of the

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hearings and further alleges that Steele had a conflict of interest because he was

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Defendant Erickson’s ex-husband. Plaintiff fails to explain this statement at all. Further,

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he does not describe the hearing or events leading up to the hearing.

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Plaintiff’s conclusory allegations, without more, are insufficient to support a claim of
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denial of procedural due process. The Court will grant Plaintiff leave to amend this claim.
2.

Property

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Plaintiff alleges several instances of deprivation, confiscation, and damage to his

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property as a violation of his due process rights. The Due Process Clause protects

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prisoners from being deprived of property without due process of law, Wolff, 418 U.S. at

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556, and prisoners have a protected interest in their personal property, Hansen v. May, 502
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F.2d 728, 730 (9th Cir. 1974). However, while an authorized, intentional deprivation of
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property is actionable under the Due Process Clause, Hudson v. Palmer, 468 U.S. 517,

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532 n.13 (1984) (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 435-36 (1982));

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Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir. 1985), neither negligent nor unauthorized

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intentional deprivations of property by a state employee “constitute a violation of the

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procedural requirements of the Due Process Clause of the Fourteenth Amendment if a

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meaningful post-deprivation remedy for the loss is available,” Hudson, 468 U.S. at 533.

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California Law provides an adequate post-deprivation remedy for any property

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deprivations. See Cal. Gov’t Code §§ 895; Barnett v. Centoni, 31 F.3d 813, 816-17 (9th

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Cir. 1994). California’s Tort Claims Act requires that a tort claim against a public entity or

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its employees be presented to the California Victim Compensation and Government Claims

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Board, formerly known as the State Board of Control, no more than six months after the

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cause of action accrues. Cal. Gov’t Code §§ 905.2, 910, 911.2, 945.4, 950-950.2 (West

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2006). Presentation of a written claim, and action on or rejection of the claim, are

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conditions precedent to suit. State v. Superior Court of Kings County (Bodde), 90 P.3d

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116, 123 (2004); Mangold v. California Pub. Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir.

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1995). To state a tort claim against a public employee, a plaintiff must allege compliance
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with the Tort Claims Act. State v. Superior Court, 90 P.3d at 123; Mangold, 67 F.3d at
1477; Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 627 (9th Cir. 1988).

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Plaintiff claims that his property was confiscated, damaged, and/or destroyed. He

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states nothing about what was taken or for how long, or what damage was caused. He

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also fails to attribute these actions to specific Defendants. Moreover, Plaintiff has failed

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to offer proof of compliance with the California Tort Claims Act. Plaintiff states several
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times that he has made claims with the Board. However, it is not clear what this Board is
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or if it’s related to Plaintiff’s property claims. Thus, Plaintiff has failed to allege facts

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sufficient to find a violation of his due process rights in relation to property. The Court will

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grant Plaintiff leave to amend his complaint on this claim.

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3.

Administrative Segregation

Plaintiff appears to allege that he was wrongfully placed in administrative
segregation and that he was wrongly classified.
a.

Substantive Due Process

“To establish a violation of substantive due process . . . , a plaintiff is ordinarily
required to prove that a challenged government action was clearly arbitrary and

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unreasonable, having no substantial relation to the public health, safety, morals, or general

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welfare. Where a particular amendment provides an explicit textual source of constitutional

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protection against a particular sort of government behavior, that Amendment, not the more

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generalized notion of substantive due process, must be the guide for analyzing a plaintiff’s

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claims.” Patel v. Penman, 103 F.3d 868, 874 (9th Cir. 1996) (citations, internal quotations,

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and brackets omitted), overruled in part on other grounds as recognized by Nitco Holding

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Corp. v. Boujikian, 491 F.3d 1086 (9th Cir. 2007); County of Sacramento v. Lewis, 523 U.S.
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833, 842 (1998). In resolving a Fourteenth Amendment substantive due process claim,

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the Court must balance “‘several factors focusing on the reasonableness of the officers’

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actions given the circumstances.’” White v. Roper, 901 F.2d 1501, 1507 (9th Cir. 1990)

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(quoting Smith v. City of Fontana, 818 F.2d 1411, 1417 (9th Cir. 1987), overruled on other

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grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999).

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Plaintiff has not alleged any facts to support that the prison officials’ actions were
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arbitrary and unreasonable. Thus, he has failed to demonstrate a violation of his rights
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under the substantive component of the Due Process Clause.

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b.

Procedural Due Process

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 a due process deprivation, 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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“States may under certain

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.” Id. at 484.
The Due Process Clause alone creates no liberty interest in remaining in the general

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prison population.

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grounds). Prisoners may be housed in administrative segregation to protect them from

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other inmates, to protect other inmates from the segregated prisoner, or pending

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Hewitt v. Helms, 459 U.S. 460, 468 (1983) (overruled on other

investigation of disciplinary charges, transfer, or re-classification. Id. The allegation that

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a plaintiff was placed in administrative segregation does not in and of itself state a claim
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for relief based on deprivation of due process. May v. Baldwin, 109 F.3d 557, 565 (9th Cir.

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1997) (convicted inmate’s due process claim fails because he has no liberty interest in

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freedom from state action taken within sentence imposed and administrative segregation

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falls within the terms of confinement ordinarily contemplated by a sentence) (quotations

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omitted); Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). The Ninth Circuit has

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explicitly found that “administrative segregation falls within the terms of confinement
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ordinarily contemplated by a sentence.” Toussaint v. McCarthy, 801 F.2d 1080, 1091-92
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(9th Cir. 1986), abrogated on other grounds by Sandin, 515 U.S. 472.

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Further, whether Plaintiff was wrongly placed on C status does not, in and of itself,
implicate a constitutional right because, in general, prison officials’ housing and

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classification decisions do not give rise to federal constitutional claims encompassed by

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the protection of liberty and property guaranteed by the Fifth and Fourteenth Amendments.

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See Board of Regents v. Roth, 408 U.S. 564, 569 (1972). Nor does the Constitution

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guarantee a prisoner placement in a particular prison or protect an inmate against being

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transferred from one institution to another. Meachum v. Fano, 427 U.S. 215, 223-225

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(1976); see Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir. 1985) (prison authorities may

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change a prisoner’s “place of confinement even though the degree of confinement may be

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different and prison life may be more disagreeable in one institution than in another”

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without violating the prisoner’s due process rights).

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Plaintiff alleges false allegations leading to false charges and sham hearings and

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changes in status or classification based on these falsities. He fails, however, to establish

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the existence of a liberty interest that was violated during his time in administrative

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segregation.

The mere placement in administrative segregation does not state a

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cognizable claim for violation of Plaintiff’s rights to procedural due process nor does the

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a change in classification. The Court will give Plaintiff leave to amend his complaint on this

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claim.

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B.

Religion Related Claims

Plaintiff appears to be arguing that he is not being allowed to practice his chosen

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religion Wiccan/Pagan.
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“Inmates . . . retain protections afforded by the First Amendment, including its
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directive that no law shall prohibit the free exercise of religion.” O’Lone v. Estate of

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Shabazz, 482 U.S. 342, 348 (1987) (internal quotations and citations omitted). The

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protections of the Free Exercise Clause are triggered when prison officials substantially

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burden the practice of an inmate’s religion by preventing him from engaging in conduct

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which he sincerely believes is consistent with his faith. Shakur v. Schriro, 514 F.3d 878,

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884-85 (9th Cir. 2008); Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997), overruled

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in part by Shakur, 514 F.3d at 884-85.

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RLUIPA provides:
No government shall impose a substantial burden on the
religious exercise of a person residing in or confined to an
institution . . . , even if the burden results from a rule of general
applicability, unless the government demonstrates that
imposition of the burden on that person(1) is in furtherance of a compelling government interest; and
(2) is the least restrictive means of furthering that compelling
government interest.

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See Pub.L.No. 106-274, 114 Stat. 803 (2000) (codified at 42 U.S.C. § 2000cc-1). Plaintiff

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bears the initial burden of demonstrating that Defendants substantially burdened the

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exercise of his religious beliefs. Warsoldier v. Woodford, 418 F.3d 989, 994-95 (9th Cir.

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2005). A “substantial burden” is one that is “oppressive to a significantly great extent.” Id.

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at 995 (internal quotations omitted). It “must impose a significantly great restriction or onus

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upon [religious] exercise.”

Id. (quotations omitted).

A substantial burden includes

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situations “‘where the state . . . denies [an important benefit] because of conduct mandated

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by religious belief, thereby putting substantial pressure on an adherent to modify his

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behavior and to violate his belief.” Id.

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If a plaintiff meets this burden, the defendants must demonstrate that “any

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substantial burden of [plaintiff’s] exercise of his religious beliefs is both in furtherance of

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a compelling governmental interest and the least restrictive means of furthering that

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compelling governmental interest.” Id. (emphasis in original). “RLUIPA is to be construed
broadly in favor of protecting an inmate’s right to exercise his religious beliefs.” Id.

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Here, Plaintiff has not alleged facts demonstrating that Defendants have

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substantially burdened the exercise of his religion. Other than making several statements

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that he is not being allowed to practice his chosen religion, he does not demonstrate how

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or why or who is stopping him from practicing. Thus, this claim fails. Plaintiff will be given

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leave to amend.

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C.

Equal Protection Claim

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Plaintiff alleges that his Equal Protection rights under the Fourteenth Amendment

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are being violated.

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circumstanced shall be treated alike” by governmental entities. F.S. Royster Guano Co.

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Under the Equal Protection Clause, “all persons similarly

v. Virginia, 253 U.S. 412, 415 (1920). However, “[t]he Constitution does not require things

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which are different in fact or opinion to be treated in law as though they were the same.”
Tigner v. Texas, 310 U.S. 141, 147 (1940).

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Equal protection claims alleging disparate treatment or classifications are subject

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to a heightened standard of scrutiny when they involve a “suspect” or “quasi-suspect”

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class, such as race or national origin, or when they involve a burden on the exercise of

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fundamental personal rights protected by the Constitution. See, e.g., City of Cleburne v.

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Cleburne Living Center, Inc., 473 U.S. 432, 440 (1985). The heightened standard of strict
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scrutiny requires the State to show that the classification is narrowly tailored to serve a
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compelling government interest. Grutter v. Bollinger, 539 U.S. 306, 326 (2003).
Where the inmate is not a member of a protected class, an equal protection claim
is subject to the rational basis test. See McGinnis v. Royster, 410 U.S. 263, 270 (1973)

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(applying rational basis test where state law denied certain state prisoners good-time credit

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toward parole eligibility for the period of their presentence county jail incarceration,

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whereas those released on bail prior to sentence received good-time credit for the entire

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period of their prison confinement). Under a rational basis inquiry, in order to prevail on

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an equal protection claim, Plaintiff must demonstrate that (1) he is similarly situated to

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others, (2) he is being treated worse than others to whom he is similarly situated, and (3)

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there is no rational basis for the disparate treatment. More v. Farrier, 984 F.2d 269, 271

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(8th Cir. 1993). Stated another way, prison officials need show only a rational basis for

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dissimilar treatment of other similarly-situated persons in order to defeat the merits of

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Plaintiff’s claim. Id., 984 F.2d at 271.

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Plaintiff does not state that he is a member of a protected class or that other’s are
being treated differently than him. Thus, Plaintiff fails to state an equal protection claim.

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The Court will give Plaintiff leave to amend.
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D.

Conspiracy

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Plaintiff repeatedly states that Defendants conspired against him. A conspiracy

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claim brought under Section 1983 requires proof of “‘an agreement or meeting of the minds

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to violate constitutional rights,’” Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2001) (quoting

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United Steel Workers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1540-41 (9th Cir.

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1989) (citation omitted)), and an actual deprivation of constitutional rights, Hart v. Parks,
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450 F.3d 1059, 1071 (9th Cir. 2006) (quoting Woodrum v. Woodward County, Oklahoma,
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866 F.2d 1121, 1126 (9th Cir. 1989)). “‘To be liable, each participant in the conspiracy

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need not know the exact details of the plan, but each participant must at least share the

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common objective of the conspiracy.’” Franklin, 312 F.3d at 441 (quoting United Steel

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Workers, 865 F.2d at 1541).

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The federal system is one of notice pleading, and the Court may not apply a

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heightened pleading standard to Plaintiff’s allegations of conspiracy. Empress LLC v. City

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and County of San Francisco, 419 F.3d 1052, 1056 (9th Cir. 2005); Galbraith v. County of

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Santa Clara, 307 F.3d 1119, 1126 (2002). However, although accepted as true, the

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“[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level

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. . . .” Twombly, 127 S.Ct. at 1965 (citations omitted). A plaintiff must set forth “the

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grounds of his entitlement to relief[,]” which “requires more than labels and conclusions,

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and a formulaic recitation of the elements of a cause of action . . . .” Id. at 1964-65

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(internal quotations and citations omitted). As such, a bare allegation that defendants

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conspired to violate plaintiff’s constitutional rights will not suffice to give rise to a conspiracy

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claim under section 1983.

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Plaintiff offers only the repeated description of conspiratorial conduct. He alleges
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no facts showing a meeting of the minds or the sharing of a common objective between

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any of the Defendants. Further, he has yet to sufficiently allege a constitutional violation.

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Thus, this claim fails. The Court will give Plaintiff leave to amend.

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E.

Denial of Access to Courts

Plaintiff alleges that he was denied access to the courts by Defendants.

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Inmates have a fundamental constitutional right of access to the courts. Lewis v.
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Casey, 518 U.S. 343, 346 (1996). However, the right is limited to direct criminal appeals,
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habeas petitions, and civil rights actions. Id. at 354. Claims for denial of access to the

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courts may arise from the frustration or hindrance of “a litigating opportunity yet to be

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gained” (forward-looking access claim) or from the loss of a meritorious suit that cannot

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now be tried (backward-looking claim). Christopher v. Harbury, 536 U.S. 403, 412-15

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(2002). Forward-looking claims allege “that systemic official action frustrates a plaintiff or

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plaintiff class in preparing and filing suits at the present time.” Christopher, 536 U.S. at

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413. In these cases that have yet to be litigated, “the justification for recognizing that

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[forward-looking] claim, is to place the plaintiff in a position to pursue a separate claim for

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relief once the frustrating condition has been removed.” Id. As part of the requirement to

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plead an injury, a plaintiff must allege that “a nonfrivolous legal claim had been frustrated

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or was being impeded.” Lewis, 518 U.S. at 353; see also Christopher, 536 U.S. at 415.

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Simply stating that a claim is “nonfrivolous” due to the action of a government official will

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not satisfy the actual injury requirement. Christopher, 536 U.S. at 415. Rather, the

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nonfrivolous “underlying cause of action and its lost remedy must be addressed by

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allegations in the complaint sufficient to give fair notice to a defendant.” Id. at 416. The

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plaintiff must describe this “predicate claim . . . well enough to apply the ‘nonfrivolous’ test
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and to show that the ‘arguable’ nature of the underlying claim is more than hope.” Id. The

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complaint should “state the underlying claim in accordance with Federal Rule of Civil

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Procedure 8(a) just as if it were being independently pursued, and a like plain statement

23

should describe any remedy available under the access claim and presently unique to it.”

24

Id. at 417-418; see Lewis, 518 U.S. at 353 n. 3 (“Depriving someone of an arguable

25
(though not yet established) claim inflicts actual injury because it deprives him of
26
27

something of value-arguable claims are settled, bought and sold. Depriving someone of
15

1

a frivolous claim, on the other hand, deprives him of nothing at all, except perhaps the

2

punishment of Rule 11 sanctions.”).

3

When a prisoner asserts that he was denied access to the courts and seeks a

4
5

remedy for a lost opportunity to present a legal claim, he must show: (1) the loss of a

6

non-frivolous or arguable underlying claim; (2) the official acts that frustrated the litigation;

7

and (3) a remedy that may be awarded as recompense but that is not otherwise available

8

in a future suit. Phillips v. Hust, 477 F.3d 1070, 1076 (9th Cir. 2007) (citing Christopher,

9

536 U.S. at 413-414, overruled on other grounds, Hust v. Phillips, 129 S.Ct. 1036 (2009)).

10

In support of this argument, Plaintiff states that he has been denied access to legal

11
12

property, the law library, and legal materials and that his 602 grievances have been

13

mishandled. Having reviewed the allegations in the Complaint, the Court finds that Plaintiff

14

has failed to state a claim for denial of access to the courts. Plaintiff fails to describe in

15

detail any action that he has been unable to pursue and also failed to show how such

16

action would not be frivolous. Thus, the Court dismisses this claim and will grant Plaintiff

17

leave to amend this claim. Again, unless Plaintiff can allege additional facts showing that

18
any denial of access to the courts frustrated his ability to pursue a non-frivolous claim, he
19
20

would be well-served devoting his time to his other claims.

21

F.

22

Plaintiff appears to be alleging that Defendants failed to respond properly to his

23

inmate appeals. Defendants’ actions in responding to Plaintiff’s appeals alone cannot give

24

Inmate Appeals Process

rise to any claims for relief under Section 1983 for violation of due process. “[A prison]

25
grievance procedure is a procedural right only, it does not confer any substantive right
26
27

upon the inmates.” Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (citing Azeez v.
16

1

DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982)); see also Ramirez v. Galaza, 334 F.3d 850,

2

860 (9th Cir. 2003) (no liberty interest in processing of appeals because no entitlement to

3

a specific grievance procedure); Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001)

4
5

(existence of grievance procedure confers no liberty interest on prisoner); Mann v. Adams,

6

855 F.2d 639, 640 (9th Cir. 1988). “Hence, it does not give rise to a protected liberty

7

interest requiring the procedural protections envisioned by the Fourteenth Amendment.”

8

Azeez, 568 F. Supp. at 10; Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986).

9

Actions in reviewing a prisoner’s administrative appeal cannot serve as the basis for liability

10

under a Section 1983 action. Buckley, 997 F.2d at 495.

11
12

Thus, since he has neither a liberty interest, nor a substantive right to the

13

procedures involved in inmate appeals, Plaintiff fails to state a claim in this regard.

14

Because amendment of this claim would be futile, the Court advises Plaintiff that he would

15

be well-served devoting his energy to pursuing his other claims.

16
17

G.

Retaliation

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

18
19

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

20

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

21

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

22

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

23

Cir. 2005).

24

A Plaintiff asserting a retaliation claim must demonstrate a “but-for” causal nexus

25
between the alleged retaliation and Plaintiff’s protected activity (i.e., filing a legal action).
26
27

McDonald v. Hall, 610 F.2d 16, 18 (1st Cir. 1979); see Mt. Healthy City School Dist. Bd.
17

1

Of Educ. v. Doyle, 429 U.S. 274 (1977). The prisoner must submit evidence, either direct

2

or circumstantial, to establish a link between the exercise of constitutional rights and the

3

allegedly retaliatory action. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). Timing of

4
5

the events surrounding the alleged retaliation may constitute circumstantial evidence of

6

retaliatory intent. See id. at 808; Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1316

7

(9th Cir. 1989).

8

Retaliation is a common thread throughout Plaintiff’s Complaint. He repeatedly

9

claims that Defendants are retaliating against him for pursuing his First Amendment right

10

to file a grievance or pursue an action. However, making these conclusory allegations over

11
12

and over again is not sufficient to state a retaliation claim. If Plaintiff would like make such

13

a claim, he must link the adverse action to constitutionally protected conduct. Plaintiff must

14

specify which Defendants were retaliating, how they retaliated, and why they retaliated.

15

Plaintiff will be given leave to amend.

16
17

H.

Racketeer Influenced and Corrupt Organizations Act

Plaintiff repeatedly states that Defendants are violating 18 U.S.C. § 1961-1968.

18
19

The Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §

20

1961-1968 allows a private citizen to sue to recover treble damages for injury “by reason

21

of a violation of section 1962”, which prohibits conducting or participating in the conduct

22

of an enterprise through a pattern of racketeering activity or through the collection of an

23

unlawful debt. 18 U.S.C. § 1962. A violation of section 1962(c) requires 1) conduct 2) of

24

an enterprise 3) through a pattern 4) of racketeering activity. Sedima, S.P.R.L. v. Imrex

25
Co., 473 U.S. 479 (1985). Furthermore, the plaintiff must actually be injured by the
26
27

conduct which purportedly violates 18 U.S.C. § 1962. Sedima at 496.
18

1

The RICO statute enumerates specific acts which constitute predicate acts to satisfy

2

the racketeering activity element. 18 U.S .C. § 1961(1). In the present case, Plaintiff's

3

RICO allegation is confusing at best. It appears that Plaintiff alleges that Defendants

4
5

obstructed his access to the courts by not answering his 602 appeals and by denying him

6

meaningful access to the courts in order to change the judicial determinations of the court,

7

so that Defendants could effectively stop his litigation in federal court, and to retaliate

8

against Plaintiff for pursuing his First Amendment rights.

9

demonstrates a pattern of racketeering activity. However, Plaintiff then alleges that

10

Plaintiff asserts that this

Defendants and the State Legislature enacted unconstitutional laws, rules or regulations

11
12

in order to collect an unlawful debt from each and every person in the state.

13

In pleading a RICO violation, the plaintiff must plead “enough facts to state a claim

14

to relief that is plausible on its face . . . and [the facts] must be enough to raise a right to

15

relief above the speculative level.” Twombly, 550 U.S. at 556. In the present case,

16

although Plaintiff states that defendants or CDCR violated 18 U.S.C. § 1962(c), it is not

17

even clear what the basis is for his allegation.

18
First, Plaintiff’s allegations that Defendants denied him meaningful access to the law
19
20

library, and failed to answer his prison grievances, which Plaintiff alleges resulted in judicial

21

determinations favorable to Defendants are not enumerated predicate acts within the

22

meaning of 18 U.S.C. § 1961 and may not serve as a basis for liability. Thus, Plaintiff fails

23

to allege a necessary element of a RICO violation.

24

An alternative to proving a pattern of racketeering activity is to prove that the

25
enterprise acquired or operated by means of an unlawful debt. 18 U.S.C § 1961(6) defines
26
27

an unlawful debt as “a debt (A) incurred or contracted in gambling activity which was in
19

1

violation of the law of the United States, a State or political subdivision thereof, or which

2

is unenforceable under State or Federal law in whole or in part as to principal or interest

3

because of the laws relating to usury, and (B) which was incurred in connection with the

4
5

business of gambling in violation of the law of the United States, a State or political

6

subdivision thereof, or the business of lending money or a thing of value at a rate usurious

7

under State or Federal law, where the usurious rate is at least twice the enforceable rate.”

8

In the present case, Plaintiff fails to sufficiently allege that Defendants operated by means

9

of an unlawful debt as so defined in 18 U.S.C. § 1961(6).

10

Plaintiff fails to state a claim for relief that is plausible on its face or that raises a

11
12

right to relief above a speculative level.

13

I.

14

Plaintiff states that he is pursuing a claim under 18 U.S.C. § 4 which defines the

15

crime of misprision of felony. However, Plaintiff does not state anything else regarding this

16

section. Plaintiff appears to argue that he is bringing this action to report the alleged

17

18 U.S.C. § 4

criminal behavior of prison officials. However, a violation of this criminal statute does not

18
19

provide for a private right of action by Plaintiff simply because he claims he has been

20

affected by its alleged violation. There is no private cause of action for the alleged violation

21

of 18 U.S.C. § 4 unless the intent to create a private cause of action is expressed in the

22

statute or clearly implied. See Central Bank of Denver, N.A. v. First Interstate Bank of

23

Denver, N.A., 511 U.S. 164, 190 (1994); Cort v. Ash, 422 U.S. 66, 79 (1975). Here, neither

24

the statute itself nor any legal authority provides for a private cause of action under 18

25
U.S.C. § 4. See, e.g., Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 511 (2d
26
27

Cir. 1994) (concluding that district court properly dismissed claim pursuant to § 242
20

1

because it is a “criminal statute[ ] that do[es] not provide [a] private cause[ ] of action”);

2

Cominsky v. FBI, 2007 WL 2206606 (N.D.Ohio May 29, 2007) (noting that §§ 4 and 242

3

are criminal statutes and “provide no private right of action”); Mathews v. Washington Mut.

4
5

Bank, FA, 2006 WL 2380460 (E.D.Pa. Aug. 14, 2006) (stating that “[n]o right of civil action

6

is created by the plain language of [§ 4]”; adding that “[w]e can find no court that has

7

concluded that this statute creates any personal right or private remedy”). Thus, Plaintiff’s

8

claim fails.

9
10

J.

Personal Participation and Supervisory Liability

Plaintiff appears to argue that many of the named Defendants are liable for the

11
12
13

conduct of subordinates as most of the named Defendants were not present and did not
participate in the allegedly unconstitutional conduct. In fact, many of the named Defendants

14 are not mentioned at all in the factual allegations section of Plaintiff’s Complaint and no
15 action has been attributed to them.
16
17

Under Section 1983, Plaintiff must demonstrate that each named Defendant
personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934

18
19
20

(9th Cir. 2002). The Supreme Court has emphasized that the term “supervisory liability,”
loosely and commonly used by both courts and litigants alike, is a misnomer. Iqbal, 129

21 S.Ct. at 1949. “Government officials may not be held liable for the unconstitutional conduct
22 of their subordinates under a theory of respondeat superior.” Id. at 1948. Rather, each
23 government official, regardless of his or her title, is only liable for his or her own misconduct,
24

and therefore, Plaintiff must demonstrate that each Defendant, through his or her own

25
individual actions, violated Plaintiff’s constitutional rights. Id. at 1948-49.
26
27

When examining the issue of supervisor liability, it is clear that the supervisors are
21

1 not subject to vicarious liability, but are liable only for their own conduct. Jeffers v. Gomez,
2
3

267 F.3d 895, 915 (9th Cir. 2001); Wesley v. Davis, 333 F.Supp.2d 888, 892 (C.D.Cal.
2004). In order to establish liability against a supervisor, a plaintiff must allege facts

4
5
6

demonstrating (1) personal involvement in the constitutional deprivation, or (2) a sufficient
causal connection between the supervisor’s wrongful conduct and the constitutional

7 violation. Jeffers, 267 F.3d at 915; Wesley, 333 F.Supp.2d at 892. The sufficient causal
8 connection may be shown by evidence that the supervisor implemented a policy so deficient
9 that the policy itself is a repudiation of constitutional rights. Wesley, 333 F.Supp.2d at 892
10

(internal quotations omitted). However, an individual’s general responsibility for supervising

11
12
13
14

the operations of a prison is insufficient to establish personal involvement. Id. (internal
quotations omitted).
Supervisor liability under Section 1983 is a form of direct liability. Munoz v. Kolender,

15 208 F.Supp.2d 1125, 1149 (S.D.Cal. 2002). Under direct liability, Plaintiff must show that
16 Defendant breached a duty to him which was the proximate cause of his injury. Id. “‘The
17

requisite causal connection can be established . . . by setting in motion a series of acts by

18
others which the actor knows or reasonably should know would cause others to inflict the
19
20
21

constitutional injury.’” Id. (quoting Johnson v. Duffy, 588 F.2d 740, 743-744 (9th Cir. 1978)).
It is impossible to determine which Defendants named in the Complaint are named

22 solely in their supervisory capacity. As far as the Court can determine, it appears that at
23 least half of the named Defendants did not actually participate in the allegedly wrongful acts
24

but were merely supervisors of the Defendants that committed the acts. In his amended

25
complaint, Plaintiff must attribute personal action to each and every named Defendant and
26
27

should omit any Defendant named solely because he was another person’s supervisor. If
22

1 Plaintiff cannot allege any particular action taken by a Defendant, he should not include that
2
3

person in the amended complaint. If Plaintiff fails to heed this warning, he risks having his
entire case dismissed for violating Rules 8(a) and 18(a).

4
5
6

K.

Rule 18

“The controlling principle appears in Fed.R.Civ.P. 18(a) ‘A party asserting a claim to

7 relief as an original claim, counterclaim, cross-claim, or third-party claim, may join, either
8 as independent or as alternate claims, as many claims, legal, equitable, or maritime, as the
9
10

party has against an opposing party.’ Thus multiple claims against a single party are fine,
but Claim A against Defendant 1 should not be joined with unrelated Claim B against

11
12
13

Defendant 2. Unrelated claims against different defendants belong in different suits, not
only to prevent the sort of morass [a multiple claim, multiple defendant] suit produce[s], but

14 also to ensure that prisoners pay the required filing fees-for the Prison Litigation Reform Act
15 limits to 3 the number of frivolous suits or appeals that any prisoner may file without
16 prepayment of the required fees. 28 U.S.C. § 1915(g).” George v. Smith, 507 F.3d 605, 607
17

(7th Cir. 2007).

18
19
20

Plaintiff’s Complaint is voluminous and includes multiple unrelated claims against
differing Defendants. While it appears that Plaintiff may be able to state at least one

21 cognizable claim, he clearly violates Rule 18(a) by including multiple unrelated claims in this
22 single filing. Plaintiff will be given the opportunity to file an amended complaint under this
23 case number, wherein he is directed to plead/allege only related claims occurring at one
24

institution. All unrelated claims should be brought in separate suits. Plaintiff is advised that

25
26

if he chooses to file an amended complaint, and fails to comply with Rule 18(a), the Court

27
23

1 will count all frivolous/noncognizable unrelated claims that are dismissed therein as strikes
2
3

such that he may be barred from filing in forma pauperis in the future.
L.

Rule 20

4
5

Plaintiff must keep in mind the following legal standard when amending his

6 complaint. Under Rule 20 of the Federal Rules of Civil Procedure, a plaintiff may join any
7 persons as defendants if: (1) any right to relief asserted against the defendants relates to
8 or arises out of the same transaction, occurrence, or series of transactions or occurrences;
9
10

and (2) there is at least one question of law or fact common to all the defendants.
Fed.R.Civ.P. 20(a); Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997); Desert Empire

11
12
13

Bank v. Ins. Co. of North America, 623 F.2d 1371, 1375 (9th Cir. 1980). Once a defendant
is properly joined under Rule 20, the plaintiff may join, as independent or alternative claims,

14 as many claims as the plaintiff has against that defendant, irrespective of whether those
15 additional claims also satisfy Rule 20. See Fed.R.Civ.P. 18(a); Intercon Research Assoc.,
16 Ltd. v. Dresser Indus. Inc., 696 F.2d 53, 57 (7th Cir. 1982) (“[J]oinder of claims under Rule
17

18 becomes relevant only after the requirements of Rule 20 relating to joinder of parties has

18
19
20

been met with respect to the party against whom the claim is sought to be asserted; the
threshold question, then, is whether joinder of [a defendant] as a party was proper under

21 Rule 20(a).”); accord, 7 Charles A. Wright, Arthur R. Miller, and Mary Kay Kane, Federal
22 Practice & Procedure Civil 3d § 1655 (2008) (hereinafter “Fed. Prac. & Proc. Civ.3d” ).
23
24

The “same transaction” requirement in Rule 20 refers to “similarity in the factual
background of a claim; claims that arise out of a systematic pattern of events” and have a

25
“very definite logical relationship” arise out of the same transaction and occurrence.
26
27

Bautista v. Los Angeles County, 216 F.3d 837, 842-843 (9th Cir. 2000) (Reinhardt, J.,
24

1 concurring) (quoting Coughlin, 130 F.3d at 1350 and Union Paving Co. v. Downer Corp.,
2
3

276 F.2d 468, 470 (9th Cir. 1960)); see Harris v. Spellman, 150 F.R.D. 130, 132 (N.D.Ill.
1993) (holding that the claims of two prisoners challenging the constitutional adequacy of

4
5
6

disciplinary hearings did not arise from the same transaction or occurrence or the same
series of transactions or occurrences where “the hearings were conducted by different

7 people at different times to consider different charges” and “rais[ed] different issues of law”),
8 cited with approval in Coughlin, 130 F.3d at 1350. In addition, “the mere fact that all [of a
9 plaintiff’s] claims arise under the same general law does not necessarily establish a
10

common question of law or fact.” Coughlin, 130 F.3d at 1351. Claims “involv[ing] different

11
12
13

legal issues, standards, and procedures” do not involve common factual or legal questions.
Coughlin, 130 F.3d at 1351. Rule 20, however, is interpreted broadly to promote judicial

14 economy and convenience, especially at the pleading stage. See Pena v. McArthur, 889
15 F.Supp. 403, 406 (E.D.Cal. 1994); 7 Fed. Prac. & Proc. Civ.3d § 1653 (“[C]ourts are inclined
16 to find that claims arise out of the same transaction or occurrence when the likelihood of
17

overlapping proof and duplication in testimony indicates that separate trials would result in

18
delay, inconvenience, and added expense to the parties and to the court.”).
19
20

As currently pleaded, Plaintiff’s Complaint is 40 single spaced pages of facts with

21 approximately 40 named Defendants and 100 Doe Defendants. Plaintiff’s statement of the
22 case includes multiple legal issues, different Defendants, different institutions, different
23 dates, etc.
24

Plaintiff appears to be claiming that many of the instances were either

committed as part of a conspiracy or in retaliation.

These are merely conclusory

25
statements. Nothing ties Plaintiff’s allegations and claims together. In his amended
26
27

complaint, Plaintiff must pare down his allegations. Plaintiff should amend only those
25

1 claims that are part of the same transaction or occurrence and that involve the same or
2
3

similar Defendants and similar or related legal questions. Another diary of Plaintiff’s
complaints will not be tolerated by the Court.

4
M.

5

Habeas Relief Request

Plaintiff repeatedly states that he is being held in prison illegal. The Court would like

6

7 Plaintiff to keep in mind that when a prisoner challenges the legality or duration of his
8 custody, or raises a constitutional challenge which could entitle him to an earlier release,
9
10

his sole federal remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475,
498-500 (1973); Young v. Kenny, 907 F.2d 874, 875-76 (9th Cir. 1990), cert. denied 11

11
12
13

S.Ct. 1090 (1991). If Plaintiff is indeed complaining about the legality or duration of his
custody, Plaintiff’s civil rights complaint will be dismissed entirely.

14 V.

CONCLUSION AND ORDER

15

The Court finds that Plaintiff’s Complaint fails to state any Section 1983 claims upon

16

which relief may be granted. The Court will provide Plaintiff time to file an amended

17

complaint to address the potentially correctable deficiencies noted above. See Noll v.

18
19
20

Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). In his Amended Complaint, Plaintiff must
demonstrate that the alleged incident or incidents resulted in a deprivation of his

21 constitutional rights. Iqbal, 129 S.Ct. at 1948-49. Plaintiff must set forth “sufficient factual
22 matter . . . to ‘state a claim that is plausible on its face.’” Iqbal, 129 S.Ct. at 1949 (quoting
23 Twombly, 550 U.S. at 555). Plaintiff must also demonstrate that each defendant personally
24

participated in the deprivation of his rights. Jones, 297 F.3d at 934.

25
26

Plaintiff should note that although he has been given the opportunity to amend, it is

27
26

1 not for the purposes of adding new defendants or claims. Plaintiff should focus the
2
3

amended complaint on claims and defendants discussed herein keeping in mind Rules 18
and 20 cited above.

4
Finally, Plaintiff is advised that Local Rule 220 requires that an amended complaint

5
6

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

7 complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.
8 1967). Once an amended complaint is filed, the original complaint no longer serves any
9 function in the case. Therefore, in an amended complaint, as in an original complaint, each
10

claim and the involvement of each defendant must be sufficiently alleged. The amended

11
12
13

complaint should be clearly and boldly titled “First Amended Complaint,” refer to the
appropriate case number, and be an original signed under penalty of perjury.

14

Based on the foregoing, it is HEREBY ORDERED that:

15

1.

16

Plaintiff’s Complaint is dismissed for failure to state a claim, with leave to file
an amended complaint within thirty (30) days from the date of service of this

17

order;

18
2.

Plaintiff shall caption the amended complaint “First Amended Complaint” and

19
refer to the case number 1:10-cv-1233-AWI-GBC (PC); and

20
21
22

3.

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.

23 IT IS SO ORDERED.
24
Dated:
25 1j0bbc

July 6, 2011
UNITED STATES MAGISTRATE JUDGE

26
27
27