Greer v. Caldwell et al

Filing 14

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Barbara A. McAuliffe on 4/6/2012 recommending dismissing action for failure to state a claim re 13 Amended Prisoner Civil Rights Complaint. Referred to Judge Anthony W. Ishii; Objections to F&R due by 5/10/2012. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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MARKUS A. GREER,

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Plaintiff,

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CASE NO. 1:11-cv–00447-AWI-BAM PC
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSING ACTION
FOR FAILURE TO STATE A CLAIM

v.
T. CALDWELL, et al.,

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(ECF No. 13)

Defendants.

OBJECTIONS DUE WITHIN THIRTY DAYS
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Plaintiff Markus A. Greer is a state prisoner proceeding pro se and in forma pauperis in this

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civil rights action pursuant to 42 U.S.C. § 1983. This action was filed on March 17, 2011. On

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March 13, 2012, an order issued dismissing the complaint, with leave to amend, for failure to state

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a cognizable claim. (ECF No. 12.) Currently before the Court is Plaintiff’s first amended complaint,

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filed April 4, 2012. (ECF No. 13.)

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I.

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). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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

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

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

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

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

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

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Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S.

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544, 555, 127 S. Ct. 1955 (2007)).

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

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

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

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

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

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

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

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

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

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

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II.

First Amended Complaint Allegations

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

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is incarcerated at California State Prison, Corcoran. Plaintiff brings this action against Defendants

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Faldon, J. Lopez, Martinez, Comaites, Lambert, R. Lopez, Campbell, and Does 1-5 alleging that

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Plaintiff’s name, facts from his prison record, and false statements attributed to Plaintiff were used

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in a rule violation report against another prisoner, Inmate Alexander, and Plaintiff was prevented

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from assisting Inmate Alexander during the rule violation hearing. Plaintiff claims violations of the

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First, Eighth, and Fourteenth Amendments. (First Am. Compl. 4,1 ECF No. 13.)

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Plaintiff states that on December 26, 2010, Defendant Faldon filed a rule violation report

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against Inmate Alexander. In the rule violation report, Defendant Faldon stated that he told Inmate

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Alexander to speak with Plaintiff about double celling. Plaintiff alleges that Defendant Faldon

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All references to pagination of specific documents pertain to those as indicated on the upper right corners
via the CM/ECF electronic court docketing system.

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falsely stated that both inmates had the same gang affiliation. However, Plaintiff’s gang affiliation

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is San Diego Bloods, and Inmate Alexander stated that he doesn’t house with Bloods because he is

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from the Bay area. Plaintiff claims that the rule violation report was “a due process violation that’s

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clearly retaliatory discrimination (racial profiling & targeting) in violating of the Department’s

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‘inmate housing policy.’”(Id. at 5.)

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Defendant Caldwell was assigned as the Investigative Employee for Inmate Alexander. On

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January 12, 2011, Defendant Caldwell refused to allow Plaintiff to assist Inmate Alexander in his

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defense of the rule violation, because she did not personally ask Plaintiff the six questions posed by

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Inmate Alexander. Plaintiff alleges that Defendant Caldwell falsified the January 12, 2011 report

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by representing that she asked Plaintiff the questions when she did not. (Id. at 6.) Defendant

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Caldwell and Faldon refused to allow Plaintiff to assist Inmate Alexander, and issued the false report

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to cover-up their falsified information about Plaintiff in Inmate Alexander’s rule violation report.

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On December 28, 2010, Defendant J. Lopez endorsed the falsified information about Plaintiff

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contained in the rule violation report against Inmate Alexander. (Id. at 7.)

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On January 13, 2011, during the disciplinary proceedings, Defendant Martinez refused to

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address the falsified information about Plaintiff contained in the report against Inmate Alexander.

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On January 20, 2011, Defendant Comaites, and on January 25, 2011, Defendant Lambert, endorsed

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the violation. (Id. at 8.)

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Plaintiff filed an inmate appeal on February 10, 2011, regarding the use of his information

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in the rule violation hearing against Inmate Alexander. Defendant R. Lopez allowed the inmate

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appeal to be screened out by the Appeals Coordinator’s Office. On February 14, 2011, Plaintiff’s

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appeal was screened out by Defendant Campbell stating he could not submit an appeal on behalf of

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another inmate. (Id. at 9.)

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For the reasons set forth below, Plaintiff has failed to state a cognizable claim against any

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named defendant. Plaintiff has been previously been granted an opportunity to amend his complaint,

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with direction from the Court. The Court finds that the deficiencies identified below are unable of

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being cured by amendment, and therefore further leave to amend should not be granted.

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III.

Discussion

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A.

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As Plaintiff was advised in the screening order, issued March 13, 2012, Plaintiff lacks

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standing to bring this action based upon the rule violation report and rule violation hearing for

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Inmate Alexander. The rights protected by the Constitution are personal rights and only the person

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subject to the violation has standing to bring suit. See Whitmore v. Arkansas, 495 U.S. 149, 160,

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110 S. Ct. 1717, 1726 (1990); Estate of Amos v. City of Page, Arizona, 257 F.3d 1086, 1093 (9th

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Cir. 2001).

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B.

Standing

First Amendment

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Plaintiff alleges that the statements attributed to him in Inmate Alexander’s rule violation

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report were retaliatory. To state a cognizable claim for retaliation, Plaintiff must set forth facts to

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show that some adverse action was taken against him because of his protected conduct. Rhodes v.

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Robinson, 408 F.3d 559, 567 (9th Cir. 2005); accord Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir.

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2009). The complaint is devoid of any adverse action taken against Plaintiff, and therefore, fails to

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state a cognizable claim for retaliation.

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C.

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Plaintiff alleges that the inmate housing policy racially profiled and targeted African

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American inmates and the intent was to disrupt the orderly operation of the prison to incite and

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provoke violence.

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Amendment, prison conditions must involve “the wanton and unnecessary infliction of pain.”

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Rhodes v. Chapman, 452 U.S. 337, 347 (1981). A prisoner’s claim does not rise to the level of an

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Eighth Amendment violation unless (1) “the prison official deprived the prisoner of the ‘minimal

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civilized measure of life’s necessities,’” and (2) “the prison official ‘acted with deliberate

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indifference in doing so.’” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Hallett

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v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted)). The first amended complaint fails

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to allege any facts to demonstrate that the prison housing policy subjected Plaintiff to conditions that

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would be cruel and unusual punishment. Plaintiff has failed to state a cognizable Eighth Amendment

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claim.

Eighth Amendment

To constitute cruel and unusual punishment in violation of the Eighth

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C.

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Fourteenth Amendment
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Due Process

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Plaintiff has failed to identify a liberty interest for which he seeks the protections of due

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process. Wilkinson v. Austin, 545 U.S. 209, 221, 125 S. Ct. 2384, 2393 (2005). A prisoner has a

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liberty interest protected by the Due Process Clause only where the restraint “imposes atypical and

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

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Hall, 83 F.3d 1083, 1088 (9th Cir. 1996) (quoting . Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct.

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2293, 2300 (1995)).

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While Plaintiff alleges that the rule violation report issued against Inmate Alexander

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contained false information regarding Plaintiff, the Due Process Clause itself does not contain any

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language that grants a broad right to be free from false accusations, but guarantees certain procedural

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protections to defend against false accusations. Freeman v. Rideout, 808 F.2d 949, 951 (2nd Cir.

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1986).

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Plaintiff states that he was denied the opportunity to assist Inmate Alexander in the rule

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violation hearing. There is no constitutional right to assist another inmate in legal proceedings.

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Shaw v. Murphy, 532 U.S. 223, 225, 121 S. Ct. 1475, 1477 (2001); Lewis v. Casey, 518 U.S. 343,

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350, 116 S. Ct. 2174, 2179 (1996). Additionally, an inmate does not have the right for assistance

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of counsel in prison disciplinary hearings. Bostic v. Carlson, 884 F.2d 1267, 1274 (1989). While

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an inmate has a limited right to call witness, Wolff v. McDonnell, 418 U.S. 539, 556, 94 S. Ct. 2963,

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2979 (1974), the right accrues to the inmate being charged with the rule violation. This does not

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confer upon Plaintiff the right to be called as a witness or to be personally interviewed by the

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employee investigating a rule violation.

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constitutional right to assist Inmate Alexander in a disciplinary hearing.

Plaintiff does not have a liberty interest in or a

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Plaintiff complains that his inmate appeal was rejected, however, there is no liberty interest

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in a prison grievance procedure as it is a procedural right only. Mann v. Adams, 855 F.2d 639, 640

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(9th Cir. 1988); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993). The failure to process an

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inmates grievance, “without more, is not actionable under section 1983,” Buckley, 997 F.2d at 495

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and Plaintiff does not have a constitutionally protected right to have his appeals accepted or
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processed, Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann, 855 F.2d at 640.

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D.

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An equal protection claim may be established by showing that the defendant intentionally

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discriminated against the plaintiff based on the plaintiff’s membership in a protected class, Lee v.

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City of Los Angeles, 250 F.3d 668, 686 (2001); Barren v. Harrington, 152 F.3d 1193, 1194 (1998),

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or that similarly situated individuals were intentionally treated differently without a rational

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relationship to a legitimate state purpose, Thornton v. City of St. Helens, 425 F.3d 1158, 1167

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(2005); Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 1074 (2000).

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Plaintiff’s conclusory allegations of racial profiling and targeting of African American inmates are

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Equal Protection

insufficient to state a plausible equal protection claim. Iqbal, 129 S. Ct. at 1949-50.

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E.

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Finally, § 1983 provides a cause of action where a state actor’s “conduct deprived the

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claimant of some right, privilege, or immunity protected by the Constitution or laws of the United

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States.” Leer v. Murphy, 844 F.2d 628, 632 (9th Cir. 1987) (quoting Parratt v. Taylor, 451 U.S. 527,

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535 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 328 (1986)). There is

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no independent cause of action for a violation of Title 15 regulations. “To the extent that the

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violation of a state law amounts to the deprivation of a state-created interest that reaches beyond that

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guaranteed by the federal Constitution, [s]ection 1983 offers no redress.” Sweaney v. Ada County,

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Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997), quoting Lovell v. Poway Unified Sch. Dist., 90 F.3d

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367, 370 (9th Cir. 1996). Nor is there any liability under § 1983 for violating prison policy. Cousins

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v. Lockyer, 568 F.3d 1063, 1070 (9th Cir. 2009) (quoting Gardner v. Howard, 109 F.3d 427, 430

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(8th Cir. 1997)).

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IV.

Prison Regulations

Appointment of Counsel

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Plaintiff has requested the appointment of counsel. The United States Supreme Court has

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ruled that district courts lack authority to require counsel to represent indigent prisoners in § 1983

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cases. Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298,

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109 S. Ct. 1814, 1816 (1989). In certain exceptional circumstances, the court may request the

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voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Rand v. Rowland, 113 F.3d
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1520, 1525 (9th Cir. 1997). Without a reasonable method of securing and compensating counsel,

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this court will seek volunteer counsel only in the most serious and exceptional cases.

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In the present case, the court does not find the required exceptional circumstances. See Rand,

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113 F.3d at 1525. Even if it is assumed that Plaintiff is not well versed in the law and that he has

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made serious allegations which, if proved, would entitle him to relief, his case is not exceptional.

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This court is faced with similar cases almost daily. Therefore, Plaintiff's request for the appointment

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of counsel should be denied.

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V.

Conclusion and Recommendation

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The Court finds that Plaintiff’s first amended complaint fails to state any claims upon which

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relief can be granted under § 1983 against any named defendant. Under Rule 15(a) of the Federal

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Rules of Civil Procedure, leave to amend ‘shall be freely given when justice so requires.’” In

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addition, “[l]eave to amend should be granted if it appears at all possible that the plaintiff can correct

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the defect.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (internal citations omitted).

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However, in this action Plaintiff has been granted an opportunity to amend the complaint, with

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guidance by the Court. Plaintiff has now filed two complaints without alleging facts against any of

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the defendants sufficient to state a claim under § 1983. The Court finds that the deficiencies outlined

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above are not capable of being cured by amendment, and therefore further leave to amend should not

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be granted. 28 U.S.C. § 1915(e)(2)(B)(ii); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).

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Accordingly, based on the foregoing, the Court HEREBY RECOMMENDS that:

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Plaintiff’s motion for the appointment of counsel be DENIED; and

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This action be dismissed in its entirety, with prejudice, for failure to state a claim

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upon which relief can be granted.

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These findings and recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30)

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days after being served with these findings and recommendations, Plaintiff may file written

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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d

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1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:
10c20k

April 6, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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