Falcon v. Phillips

Filing 11

ORDER DISMISSING [9[ Action (Strike) for Failure to State a Claim upon which Relief may be Granted under Section 1983; ORDER that this Dismissal is Subject to the "THREE STRIKES" Provision of 28 USC 1915(g); ORDER DIRECTING Clerk to CLOSE CASE signed by Magistrate Judge Gary S. Austin on 10/2/2013. CASE CLOSED. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JUAN ANTONIO FALCON,

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Plaintiff,

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vs.
M. R. PHILLIPS,

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Defendant.

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ORDER DISMISSING ACTION FOR
FAILURE TO STATE A CLAIM UPON
WHICH RELIEF MAY BE GRANTED
UNDER SECTION 1983
(Doc. 9.)
ORDER THAT THIS DISMISSAL IS
SUBJECT TO THE “THREE-STRIKES”
PROVISION OF 28 U.S.C. § 1915(g)
ORDER DIRECTING CLERK TO
CLOSE CASE

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1:10-cv-02262-GSA-PC

I.

BACKGROUND

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Juan Antonio Falcon (APlaintiff@) is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint

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commencing this action on December 6, 2010. (Doc. 1.) On December 16, 2010, Plaintiff

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consented to Magistrate Judge jurisdiction in this action pursuant to 28 U.S.C. ' 636(c), and no

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other parties have made an appearance. (Doc. 5.) Therefore, pursuant to Appendix A(k)(4) of

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the Local Rules of the Eastern District of California, the undersigned shall conduct any and all

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proceedings in the case until such time as reassignment to a District Judge is required. Local

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Rule Appendix A(k)(3).

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The court screened the initial Complaint pursuant to 28 U.S.C. 1915A and entered an

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order on December 20, 2012, dismissing the Complaint for failure to state a claim, with leave
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to amend. (Doc. 8.) On January 18, 2013, Plaintiff filed the First Amended Complaint, which

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is now before the Court for screening. (Doc. 9.)

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II.

SCREENING REQUIREMENT

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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).

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The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

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legally Afrivolous or malicious,@ that fail to state a claim upon which relief may be granted, or

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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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' 1915A(b)(1),(2). ANotwithstanding any filing fee, or any portion thereof, that may have been

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paid, the court shall dismiss the case at any time if the court determines that . . . the action or

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appeal fails to state a claim upon which relief may be granted.@ 28 U.S.C. ' 1915(e)(2)(B)(ii).

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A complaint is required to contain Aa short and plain statement of the claim showing

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that the pleader is entitled to relief . . . .@ Fed. R. Civ. P. 8(a)(2). Detailed factual allegations

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are not required, but A[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, 556 U.S. 662, 678, 129 S.Ct.

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1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955

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(2007)). While a plaintiff=s allegations are taken as true, courts Aare not required to indulge

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

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(internal quotation marks and citation omitted). Plaintiff must set forth Asufficient factual

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matter, accepted as true, to >state a claim to relief that is plausible on its face.=@ Iqbal 556 U.S.

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at 678. While factual allegations are accepted as true, legal conclusions are not. Id. The mere

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possibility of misconduct falls short of meeting this plausibility standard. Id. at 678-79; Moss

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v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

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III.

SUMMARY OF FIRST AMENDED COMPLAINT

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Plaintiff is presently incarcerated at Salinas Valley State Prison in Soledad, California.

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The events at issue in the First Amended Complaint allegedly occurred while Plaintiff was

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housed at the Kern Valley State Prison in Delano, California. Plaintiff names as defendant

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Lieutenant M. R. Phillips. Plaintiff’s factual allegations follow.
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On December 8, 2009, a 602 inmate appeal filed by Plaintiff was granted, allowing

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Plaintiff’s Rules Violation Report to be re-issued and re-heard, because at the original hearing

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Plaintiff was denied essential witnesses. At the re-hearing, the Hearing Officer, Lieutenant M.

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R. Phillips, again denied Plaintiff his essential witnesses. Those witnesses were essential to

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Plaintiff’s defense, and Plaintiff believes that he would not have been found guilty of battery at

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the hearing if the witnesses had been allowed. As a result of the re-hearing, Plaintiff was

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placed in segregated housing for something he was innocent of, and the lengthy confinement

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affected Plaintiff’s mental state.

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Plaintiff requests that Serious Rules Violation log# FA-09-08-006R and all related

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dispositions be vacated and dismissed, and requests monetary damages for mental suffering.

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IV.

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PLAINTIFF’S DUE PROCESS CLAIM
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. ASection 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. 1997)

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(internal quotations omitted). ATo the extent that the violation of a state law amounts to the

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deprivation of a state-created interest that reaches beyond that guaranteed by the federal

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Constitution, Section 1983 offers no redress.@ Id.

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To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted

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under color of state law and (2) the defendant deprived him of rights secured by the

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Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.

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2006). AA person >subjects= another to the deprivation of a constitutional right, within the

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meaning of section 1983, if he does an affirmative act, participates in another=s affirmative acts,

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or omits to perform an act which he is legally required to do that causes the deprivation of

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which complaint is made.@ Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). AThe
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requisite causal connection can be established not only by some kind of direct, personal

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participation in the deprivation, but also by setting in motion a series of acts by others which

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the actors knows or reasonably should know would cause others to inflict the constitutional

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injury.@ Johnson at 743-44).

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Due Process

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

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

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209, 221, 125 S.Ct. 2384 (2005). To state a claim, Plaintiff must first identify the interest at

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stake. Wilkinson, 545 U.S. at 221. Liberty interests may arise from the Due Process Clause or

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from state law. Id. The Due Process Clause itself does not confer on inmates a liberty interest

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in avoiding more adverse conditions of confinement, id. at 221-22 (citations and quotation

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marks omitted), and under state law, the existence of a liberty interest created by prison

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

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at 222-23 (citing Sandin v. Conner, 515 U.S. 472, 481-84, 115 S.Ct. 2293 (1995)) (quotation

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marks omitted). Liberty interests created by prison regulations are generally limited to freedom

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from restraint which imposes atypical and significant hardship on the inmate in relation to the

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ordinary incidents of prison life. Wilkinson, 545 U.S. at 221 (citing Sandin, 515 U.S. at 484)

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(quotation marks omitted); Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007).

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APrison disciplinary proceedings are not part of a criminal prosecution, and the full

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panoply of rights due a defendant in such proceedings does not apply.@ Wolff v. McDonnell,

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418 U.S. 539, 556 (1974). With respect to prison disciplinary proceedings, the minimum

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procedural requirements that must be met are: (1) written notice of the charges; (2) at least 24

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hours 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 evidence

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

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witnesses in his defense, when permitting him to do so would not be unduly hazardous to

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institutional safety or correctional goals; and (5) legal assistance to the prisoner where the

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prisoner is illiterate or the issues presented are legally complex. Id. at 563-71. As long as the
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five minimum Wolff requirements are met, due process has been satisfied. Walker v. Sumner,

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14 F.3d 1415, 1420 (9th Cir. 1994). ASome evidence@ must support the decision of the hearing

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officer. Superintendent v. Hill, 472 U.S. 445, 455 (1985). The standard is not particularly

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stringent and the relevant inquiry is whether Athere is any evidence in the record that could

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support the conclusion reached . . . .@ Id. at 455-56 (emphasis added).

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The Due Process Clause itself does not confer on inmates a liberty interest in being

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confined in the general prison population instead of administrative segregation. See Hewitt v.

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Helms, 459 U.S. 460, 466-68 (1983); see also 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 freedom

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from state action taken within sentence imposed and administrative segregation falls within the

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terms of confinement ordinarily contemplated by a sentence) (quotations omitted); Resnick v.

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Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (plaintiff=s placement and retention in the SHU was

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within range of confinement normally expected by inmates in relation to ordinary incidents of

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prison life and, therefore, plaintiff had no protected liberty interest in being free from

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confinement in the SHU) (quotations omitted).

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The Supreme Court has held that a claim challenging the procedures used in a prison

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disciplinary hearing is not cognizable under ' 1983 if the nature of the inmate=s allegations are

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such that, if proven, would necessarily imply the invalidity of the result of the prison

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disciplinary hearing. Balisok, 520 U.S. at 644. Such a challenge is properly brought as a

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habeas corpus petition and not under ' 1983. Heck, 512 U.S. at 487; Preiser v. Rodriguez, 411

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U.S. 475, 500 (1973) Such a claim will not accrue until the conviction or sentence has been

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invalidated.

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In this case, Plaintiff alleges in the complaint that his disciplinary conviction was

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invalidated. However, Plaintiff has not alleged facts demonstrating that his placement and

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retention in the SHU imposed an atypical and significant hardship in relation to the ordinary

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incidents of prison life. Plaintiff alleges that his confinement was “lengthy” and “affected

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Plaintiff mentally,” but he does not describe conditions that posed an atypical and significant

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hardship in comparison to the conditions of prison life in general. (First Amd Cmp, Doc. 9 at 4
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¶IV.) Therefore, Plaintiff fails to state a cognizable claim for violation of his rights to due

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process.

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V.

CONCLUSION AND ORDER

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For the reasons set forth above, the court finds that Plaintiff fails to state any cognizable

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claims in the First Amended Complaint upon which relief may be granted under ' 1983.

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Plaintiff was previously granted leave to amend the complaint with ample guidance by the

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court, and Plaintiff has now filed two complaints without stating any cognizable claims.

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Therefore, further leave to amend shall not be granted. 28 U.S.C. ' 1915(e)(2)(B)(ii); Noll v.

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Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).

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Based on the foregoing, it is HEREBY ORDERED that:

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This action is DISMISSED in its entirety, with prejudice, for failure to state a
claim upon which relief may be granted under ' 1983;

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2.

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This dismissal is subject to the Athree-strikes@ provision set forth in 28 U.S.C. '
1915(g). Silva v. Vittorio, 658 F.3d 1090, 1098 (9th Cir. 2011); and

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3.

The Clerk is directed to close this case.

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IT IS SO ORDERED.
Dated:

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October 2, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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