Calihan v. Giurbino et al

Filing 11

ORDER signed by Magistrate Judge Sheila K. Oberto on 4/4/2012 denying motion for appointment of counsel and DISMISSING CASE (Strike) with prejudice for failure to state a claim under section 1983. CASE CLOSED. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KENNY CALIHAN,

CASE NO. 1:11-cv-00868-SKO PC

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Plaintiff,

ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL AND
DISMISSING ACTION, WITH PREJUDICE,
FOR FAILURE TO STATE A CLAIM UNDER
SECTION 1983

Defendants.

(Doc. 1)

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v.
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G. GIURBINO, et al.,
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ORDER THAT DISMISSAL IS SUBJECT
TO 28 U.S.C. § 1915(G)

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First Screening Order
I.

Screening Requirement and Standard

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Plaintiff Kenny Calihan, a state prisoner proceeding pro se and in forma pauperis, filed this

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civil rights action pursuant to 42 U.S.C. § 1983 on May 2, 2011. The Court is required to screen

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complaints brought by prisoners seeking relief against a governmental entity and/or against an officer

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or employee of a governmental entity. 28 U.S.C. § 1915A(a). Plaintiff’s complaint, or any portion

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thereof, is subject to dismissal if it is frivolous or malicious, if it fails to state a claim upon which

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relief may be granted, or if it seeks monetary relief from a defendant who is immune from such

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relief. 28 U.S.C. § 1915A(b)(1), (2); 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 pleader

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is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, __, 129 S.Ct. 1937, 1949 (2009) (citing Bell
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Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While a plaintiff’s

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allegations are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v.

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Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation

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omitted).

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Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor, but the pleading standard is now

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higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), and to survive

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screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to

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allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged,

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Iqbal, 556 U.S. at __, 129 S.Ct. at 1949 (quotation marks omitted); Moss v. U.S. Secret Service, 572

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F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not

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sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. Iqbal,

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556 U.S. at __, 129 S.Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969.

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II.

Discussion

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A.

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Plaintiff, who is currently incarcerated at Mule Creek State Prison in Ione, California, brings

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this suit against Director G. Giurbino, Associate Director K. Harrington, Chief Psychologist A.

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Eargle, Chief T. Rothchild, and Classification Services Unit Counselor P. Kennedy arising out of

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their decision to relinquish him from Departmental Review Board (DRB) control. Plaintiff seeks

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the appointment of counsel and an order mandating that his DRB control status be reinstated.

Allegations

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In 1989-1990, Plaintiff testified against a Mexican Mafia gang member charged with triple

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homicide, which resulted in the placement of an open contract on Plaintiff’s life and led to approval

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to transfer Plaintiff to a Federal Bureau of Prisons facility. In 1991, after Plaintiff was released on

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parole and then returned to the California Department of Corrections and Rehabilitation, he was

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placed in a protective housing unit (PHU) by the DRB, which maintained “transfer control” over

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Plaintiff.

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On March 30, 2010, Plaintiff requested a non-adverse transfer from the PHU at California

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State Prison-Corcoran to the sensitive needs yard (SNY) at Mule Creek State Prison, but he made
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it clear that he would agree to the transfer only if the DRB retained transfer control over him.

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Plaintiff was assured that he would remain a DRB transfer control case. On October 21, 2010, the

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DRB approved Plaintiff’s request to transfer to the SNY at Mule Creek State Prison, but in doing

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so, it also relinquished transfer control over Plaintiff.

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Plaintiff alleges that the decision to relinquish DRB transfer control over him was a big

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mistake which must be corrected and that he never would have asked for/agreed to the transfer if he

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had known the DRB was going to relinquish control.

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B.

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Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or other

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federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092

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(9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v.

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Williams, 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff alleges that the relinquishment of DRB

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transfer control violated his rights under the Due Process Clause, which protects prisoners against

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the deprivation of liberty without the procedural protections to which they are entitled under the law.

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Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384 (2005).

Due Process Claim

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To state a viable claim, Plaintiff must first identify the interest at stake. Wilkinson, 545 U.S.

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at 221. Liberty interests may arise from the Due Process Clause or from state law. Id. The Due

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Process Clause itself does not confer on inmates a liberty interest in avoiding more adverse

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conditions of confinement, id. at 221-22 (citations and quotation marks omitted), and under state

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law, the existence of a liberty interest created by prison regulations is determined by focusing on the

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nature of the condition of confinement at issue, id. at 222-23 (citing Sandin v. Conner, 515 U.S. 472,

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481-84, 115 S.Ct. 2293 (1995)) (quotation marks omitted). Liberty interests created by prison

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regulations are generally limited to freedom from restraint which imposes atypical and significant

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hardship on the inmate in relation to the ordinary incidents of prison life. Wilkinson, 545 U.S. at

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221 (citing Sandin, 515 U.S. at 484) (quotation marks omitted); Myron v. Terhune, 476 F.3d 716,

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718 (9th Cir. 2007).

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Plaintiff cites to section 3376.1 of Title 15 in support of his due process claim. While
Plaintiff cannot rely on the regulation itself to demonstrate the existence of a protected liberty
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interest, the regulation is described here to provide context for Plaintiff’s claim, which is one of

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classification. Sandin, 515 U.S. at 483-84.

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Pursuant to section 3376.1, the DRB provides the Secretary’s final review of classification

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issues which are referred by an institution head, and the DRB’s decision serves as the Secretary’s

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level decision, which is not appealable. Cal. Code Regs., tit. 15, § 3376.1 (2012) (quotation marks

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omitted). Referrals are made to the DRB, in relevant part, when an institution head believes a DRB

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level decision for placement of an inmate is required because of an unusual threat to the safety of

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persons or public interest in the case; when an out-of-state or federal prison placement is

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recommended; or when an inmate’s current placement was ordered by the DRB and there is no

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documentation in the inmate’s central file to indicate that the DRB has relinquished responsibility

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for the inmate’s placement. Tit. 15, § 3376.1(d) (quotation marks omitted).

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Plaintiff does not have a protected liberty interest in retaining his DRB transfer control

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classification under the Due Process Clause itself and there is no state-created liberty interest at

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stake, either. Wilkinson, 545 U.S. at 221-23. Decisions regarding which inmates should or should

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not be referred to the DRB and when or if the DRB should relinquish transfer control over certain

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inmates rests with the sound discretion of prison officials. Sandin, 515 U.S. at 482-83. A claim that

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Plaintiff is entitled to a certain classification and that his removal from that classification imposed

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atypical and significant hardship on him in relation to the ordinary incidents of prison life is

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untenable. Wilkinson, 545 U.S. at 221; Sandin, 515 U.S. at 484; Myron, 476 F.3d at 718. In the

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absence of a protected liberty interest, Plaintiff’s due process claim fails as a matter of law. Because

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the deficiency is not capable of being cured through amendment, the Court declines to grant leave

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to amend. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Noll v. Carlson, 809 F.2d 1446,

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1448-49 (9th Cir. 1987).

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C.

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Plaintiff alleges only a claim for denial of due process and his complaint is devoid of any

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factual allegations suggesting his rights under the Eighth Amendment were violated.1 Therefore, the

Eighth Amendment

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Plaintiff was transferred to the Mule Creek State Prison SNY at his request and the transfer was approved
after an evaluation of the risks by the DRB. (Doc. 1., Comp.)

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Court does not undertake to infer any additional legal claims. O’Guinn v. Lovelock Corr. Ctr., 502

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F.3d 1056, 1060 (9th Cir. 2007). However, because the crux of Plaintiff’s concern is that he no

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longer benefits from the extra protection which resulted from being classified as a DRB transfer

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control case, the Court notes that while the Due Process Clause offers Plaintiff no remedy, the Eighth

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Amendment will protect Plaintiff against the knowing disregard of a substantial risk of harm to

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Plaintiff’s safety. Farmer v. Brennan, 511 U.S. 825, 833, 114 S.Ct. 1970 (1994); Hearns v. Terhune,

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413 F.3d 1036, 1040 (9th Cir. 2005).

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Prison officials have a constitutional obligation to protect Plaintiff from harm. Farmer, 511

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U.S. at 833; Hearns, 413 F.3d at 1040. Therefore, should Plaintiff’s housing situation change in the

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future such that a substantial risk of harm to his safety is presented, he is not without redress. At this

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juncture, however, Plaintiff’s belief that the DRB should not have relinquished transfer control over

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him and his desire to be once again classified as a DRB transfer control case do not support a claim

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under section 1983. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130

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(1992) (discussing case-or-controversy and standing requirements necessary to invoke federal

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jurisdiction); Bova v. City of Medford, 564 F.3d 1093, 1096-97 (9th Cir. 2009).

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D.

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Plaintiff does not have a constitutional right to the appointment of counsel in this action.

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Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009); Storseth v. Spellman, 654 F.2d 1349, 1353 (9th

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Cir. 1981). The Court may request the voluntary assistance of counsel pursuant to 28 U.S.C. §

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1915(e)(1), but it will do so only if exceptional circumstances exist. Palmer, 560 F.3d at 970;

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Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1981). In making this determination, the

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Court must evaluate the likelihood of success on the merits and the ability of Plaintiff to articulate

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his claims pro se in light of the complexity of the legal issues involved. Palmer, 560 F.3d at 970

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(citation and quotation marks omitted); Wilborn, 789 F.2d at 1331. Neither consideration is

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dispositive and they must be viewed together. Palmer, 560 F.3d at 970 (citation and quotation marks

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omitted); Wilborn 789 F.2d at 1331.

Appointment of Counsel

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In the present case, the Court does not find the required exceptional circumstances. The

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Court has found that Plaintiff’s due process claim fails as a matter of law and that failure is not
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attributable to Plaintiff’s inability to articulate his claim or to the complexity of the issues. Plaintiff

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ably articulates his claim, but the facts do not support a viable federal due process claim. Therefore,

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the appointment of counsel is not warranted.

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III.

Conclusion and Order

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Plaintiff’s complaint fails to state a claim under section 1983 for denial of due process. The

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deficiency at issue is not capable of being cured through amendment and therefore, this action shall

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be dismissed. Lopez, 203 F.3d at 1130; Noll, 809 F.2d at 1448-49. Accordingly, it is HEREBY

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ORDERED that:

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Plaintiff’s motion for the appointment of counsel is denied;

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2.

This action is dismissed, with prejudice, for failure to state a claim under section

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1983; and

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3.

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This dismissal is subject to the “three-strikes” provision set forth in 28 U.S.C. §
1915(g). Silva v. Vittorio, 658 F.3d 1090, 1098-99 (9th Cir. 2011).

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IT IS SO ORDERED.

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Dated:
ie14hj

April 4, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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