Hunter v. Harrington, et al.

Filing 8

ORDER DISMISSING 1 Complaint WITH LEAVE TO AMEND; First Amended Complaint Due within Thirty Days signed by Magistrate Judge Gerald B. Cohn on 6/10/2011. First Amended Complaint due by 7/14/2011. (Attachments: # 1 Amended Complaint Form)(Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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LEROY DEWITT HUNTER,

CASE NO. 1:11-cv-00237-GBC (PC)

Plaintiff,

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ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND

v.
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K. HARRINGTON, et al.,

(ECF No. 1)

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Defendants.

FIRST AMENDED COMPLAINT DUE
/ WITHIN THIRTY DAYS

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SCREENING ORDER
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I.

PROCEDURAL HISTORY

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Plaintiff Leroy Dewitt Hunter (“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 February 11, 2011 and consented to Magistrate Judge jurisdiction on March 1,
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2011. (ECF Nos. 1 & 4.) No other parties have appeared.
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Plaintiff’s Complaint is now before the Court for screening. For the reasons set forth
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below, the Court finds that Plaintiff has failed to state any claims upon which relief may be
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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 right to due process under the Fourteenth

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Amendment. Plaintiff names the following individuals as Defendants: K. Harrington,

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Warden; M.D. Biter, Warden; T. Artlitz, A.W.; J. Garza, Captain; R. Thomas, CCII; S.

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Cranmer, CCII; Goree, CCII; T. Yang, CCII; Ursher, CCI; M.A. Hernandez, CCI; Harris,

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Lieutenant; Jose, Sergeant; Jones, Sergeant; and Alcantar, Correctional Officer.

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Plaintiff alleges as follows: On April 2, 2010, Kern Valley Defendants and Platt

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refused to comply with Title 115 Rules. They would not apply the numerical weights and

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measures to Plaintiff to drop his security level. On July 14, 2010, during a classification

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hearing, Plaintiff was told that Title 15 was not valid and that if he did not like it, he could

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file an appeal with the prison.
Plaintiff seeks monetary compensation 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
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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From the current Complaint, it is difficult for the Court determine what exactly
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Plaintiff is claiming.1 Plaintiff appears to assert that Defendants somehow violated his due

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process rights, perhaps, during a classification hearing. Plaintiff states that he was denied
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services, activities, and programs and that he was “excluded from reduction of time credits,
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reduction of [his] security level”. (ECF No. 1, p. 3.) However, Plaintiff fails to describe the
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hearing at all or any other due process he may have received. He also fails to state why
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he was denied the above listed items. Below is the legal standard relevant to a claim for
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due process. Should Plaintiff choose to amend this claim (assuming it is in fact a due
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process claim), he should keep the following law in mind.
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The Due Process Clause protects prisoners from being deprived of life, liberty, or
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property without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In
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order to prevail on a claim of deprivation of due process, a plaintiff must first establish the
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existence of a liberty or property interest for which the protection is sought. See Ingraham
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v. Wright, 430 U.S. 651, 672 (1977); Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972).
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Due process protects against the deprivation of property where there is a legitimate claim
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Plaintiff has attached approxim ately 66 pages of attachm ents to his Com plaint. Many of the
attachm ents appear to be m edically-related. However, Plaintiff’s statem ent of claim s does not refer to any
m edically-related claim s. As far as the Court can determ ine, these attachm ents appear to be unrelated
and unnecessary to Plaintiff’s allegations.

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of entitlement to the property. See Bd. of Regents, 408 U.S. at 577. Protected property

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interests are created, and their dimensions are defined, by existing rules that stem from

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an independent source-such as state law-and which secure certain benefits and support

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claims of entitlement to those benefits. See id.

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Liberty interests can arise both from the Constitution and from state law. See Hewitt

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v. Helms, 459 U.S. 460, 466 (1983); Meachum v. Fano, 427 U.S. 215, 224-27 (1976);

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Smith v. Sumner, 994 F.2d 1401, 1405 (9th Cir. 1993). In determining whether the

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Constitution itself protects a liberty interest, the court should consider whether the practice

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in question “is within the normal limits or range of custody which the conviction has

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authorized the State to impose.” Wolff, 418 U.S. at 557-58; Smith, 994 F.2d at 1405.

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Applying this standard, the Supreme Court has concluded that the Constitution itself

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provides no liberty interest in good-time credits, see Wolff, 418 U.S. at 557; in remaining

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in the general population, see Sandin v. Conner, 515 U.S. 472, 485-86 (1995); in not losing

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privileges, see Baxter v. Palmigiano, 425 U.S. 308, 323 (1976); in staying at a particular

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institution, see Meachum, 427 U.S. at 225-27; or in remaining in a prison in a particular

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state, see Olim v. Wakinekona, 461 U.S. 238, 245-47 (1983).

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In determining whether state law confers a liberty interest, the Supreme Court has

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adopted an approach in which the existence of a liberty interest is determined by focusing

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on the nature of the deprivation. See Sandin v. Connor, 515 U.S. 472, 481-84 (1995). In

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doing so, the Court has held that state law creates a liberty interest deserving of protection

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only where the deprivation in question: (1) restrains the inmate’s freedom in a manner not

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expected from the sentence; and (2) “imposes atypical and significant hardship on the

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inmate in relation to the ordinary incidents of prison life.” Id. at 483-84. Prisoners in

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California have a liberty interest in the procedures used in prison disciplinary hearings

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where a successful claim would not necessarily shorten the prisoner’s sentence. See

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Ramirez v. Galaza, 334 F.3d 850, 853, 859 (9th Cir. 2003) (concluding that a due process

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challenge to a prison disciplinary hearing which did not result in the loss of good-time

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credits was cognizable under § 1983); see also Wilkinson v. Dotson, 544 U.S. 74, 82
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(2005) (concluding that claims which did not seek earlier or immediate release from prison

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were cognizable under § 1983).

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As currently pleaded, Plaintiff fails to state a due process claim. Plaintiff will be

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given one additional opportunity to amend his complaint. In his amended complaint,

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Plaintiff must describe in greater detail his claim including, but not limited to, any notice he

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received about the hearing, whether he was afforded the opportunity to state his views or

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have witnesses, why the hearing was held, the outcome of the hearing, the consequences

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of the hearing, etc.

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B.

Violating Prison Policy

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It appears that Plaintiff is alleging that Defendants violated prison policy or

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regulations through their actions or inactions. An allegation that a defendant violated a

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prison policy is not sufficient to state a constitutional claim. See Gardner v. Howard, 109

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F.3d 427, 430 (8th Cir. 1997) (no Section 1983 liability for violation of prison policy)) . “In

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order to set forth a claim under 42 U.S.C. § 1983, an inmate must show a violation of his

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constitutional rights, not merely a violation of prison policy.” Moore v. Schuetzle, 486

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F.Supp.2d 969, 989 (D.N.D. 2007). Accordingly, Plaintiff’s allegation that Defendants

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violated Section 1983 by failing to comply with a prison regulation fails to state a claim

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upon which relief could be granted.

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C.

Personal Participation and Supervisory Liability

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Plaintiff does not attribute any action, unconstitutional or otherwise, to any named

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Defendant. Plaintiff may be arguing that all named Defendants are liable for the conduct

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of their subordinates as none of them were present and, therefore, did not participate in

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the complained of conduct as currently described by Plaintiff.

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Under Section 1983, Plaintiff must demonstrate that each named Defendant

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personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930,

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934 (9th Cir. 2002). The Supreme Court has emphasized that the term “supervisory

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liability,” loosely and commonly used by both courts and litigants alike, is a misnomer.

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Iqbal, 129 S.Ct. at 1949.

“Government officials may not be held liable for the
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unconstitutional conduct of their subordinates under a theory of respondeat superior.” Id.

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at 1948. Rather, each government official, regardless of his or her title, is only liable for

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his or her own misconduct, and therefore, Plaintiff must demonstrate that each defendant,

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through his or her own individual actions, violated Plaintiff’s constitutional rights. Id. at

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1948-49.

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

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

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267 F.3d 895, 915 (9th Cir. 2001); Wesley v. Davis, 333 F.Supp.2d 888, 892 (C.D.Cal.

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2004). In order to establish liability against a supervisor, a plaintiff must allege facts

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demonstrating (1) personal involvement in the constitutional deprivation, or (2) a sufficient

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causal connection between the supervisor’s wrongful conduct and the constitutional

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violation. Jeffers, 267 F.3d at 915; Wesley, 333 F.Supp.2d at 892. The sufficient causal

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connection may be shown by evidence that the supervisor implemented a policy so

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deficient that the policy itself is a repudiation of constitutional rights.

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F.Supp.2d at 892 (internal quotations omitted). However, an individual’s general

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responsibility for supervising the operations of a prison is insufficient to establish personal

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involvement. Id. (internal quotations omitted).

Wesley, 333

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Supervisor liability under Section 1983 is a form of direct liability. Munoz v.

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Kolender, 208 F.Supp.2d 1125, 1149 (S.D.Cal. 2002). Under direct liability, Plaintiff must

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show that Defendant breached a duty to him which was the proximate cause of his injury.

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Id. “‘The requisite causal connection can be established . . . by setting in motion a series

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of acts by others which the actor knows or reasonably should know would cause others to

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inflict the constitutional injury.’” Id. (quoting Johnson v. Duffy, 588 F.2d 740, 743-744 (9th

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Cir. 1978)).

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indifference, a plaintiff may state a claim for supervisory liability based upon the

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supervisor’s knowledge of and acquiescence in unconstitutional conduct by others.” Star

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v. Baca, 633 F.3d 1191, 1196 (9th Cir. 2011).

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However “where the applicable constitutional standard is deliberate

Plaintiff has not alleged facts demonstrating that any of the named Defendants
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personally acted to violate his rights. Plaintiff must specifically link each Defendant to a

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violation of his rights. Plaintiff shall be given the opportunity to file an amended complaint

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curing the deficiencies described by the Court in this order.

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V.

CONCLUSION AND ORDER

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

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

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

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Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). In his Amended Complaint, Plaintiff must

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demonstrate that the alleged incident or incidents resulted in a deprivation of his

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constitutional rights. Iqbal, 129 S.Ct. at 1948-49. Plaintiff must set forth “sufficient factual

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matter . . . to ‘state a claim that is plausible on its face.’” Iqbal, 129 S.Ct. at 1949 (quoting

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Twombly, 550 U.S. at 555). Plaintiff must also demonstrate that each defendant personally

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

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

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is not for the purposes of adding new defendants or claims. Plaintiff should focus the

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amended complaint on claims and defendants discussed herein.

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

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

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amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55,

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57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no longer

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serves any function in the case. Therefore, in an amended complaint, as in an original

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complaint, each claim and the involvement of each defendant must be sufficiently alleged.

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The amended complaint should be clearly and boldly titled “First Amended Complaint,”

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refer to the appropriate case number, and be an original signed under penalty of perjury.

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Based on the foregoing, it is HEREBY ORDERED that:

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Plaintiff’s Complaint is dismissed for failure to state a claim, with leave to file

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an amended complaint within thirty (30) days from the date of service of this

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order;
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2.

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refer to the case number 1:11-cv-237-GBC (PC); and

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3.

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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.

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

IT IS SO ORDERED.

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Dated:
1j0bbc

June 10, 2011
UNITED STATES MAGISTRATE JUDGE

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