Hodges v. Pina, et al.

Filing 8

ORDER DISMISSING 1 Action (Strike), with Prejudice, for Failure to State a Claim Under Section 1983; ORDER THAT DISMISSAL IS SUBJECT TO 28 USC 1915(G) signed by Magistrate Judge Sheila K. Oberto on 3/29/2012. 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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JOHNTAE C. HODGES,

CASE NO. 1:11-cv-01105-SKO PC

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Plaintiff,

ORDER DISMISSING ACTION, WITH
PREJUDICE, FOR FAILURE TO STATE A
CLAIM UNDER SECTION 1983

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v.
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S. PINA, et al.,

(Doc. 1)

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Defendants.

ORDER THAT DISMISSAL IS SUBJECT
TO 28 U.S.C. § 1915(G)

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/
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Screening Order
I.

Screening Requirement and Standard

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Plaintiff Johntae C. Hodges, a state prisoner proceeding pro se and in forma pauperis, filed

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this civil rights action pursuant to 42 U.S.C. § 1983 on July 5, 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 California State Prison-Corcoran, brings this suit

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against S. Pina and A. Arrendondo for violating his rights under the Eighth Amendment of the

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United States Constitution. Plaintiff alleges that on February 11, 2011, he received a Rules Violation

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Report (RVR) for possession of contraband, purportedly a cell phone. Defendant Arrendondo

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authored the RVR and claimed he observed Plaintiff with the phone, although Officer Bohlander

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actually confiscated the phone, kept possession of it, and later destroyed it. Plaintiff appeared before

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Defendant Pina for the disciplinary hearing and he was found guilty, resulting in the assessment of

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a thirty-day credit forfeiture and placement on “C” status for ninety days.

Allegations

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Plaintiff alleges that the only evidence relied upon at the hearing was Defendant

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Arrendondo’s report and testimony, and no supplemental report by Officer Bohlander was provided.

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Plaintiff was also denied the opportunity to see the phone and there were no photos of the phone

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provided. Plaintiff’s inmate witness, who provided a written statement saying the phone was his,

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was not allowed to testify.

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Plaintiff appealed the disciplinary hearing result. His appeal was granted and the RVR was

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dismissed in the interest of justice. The review found that Plaintiff’s due process rights had been

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violated because Plaintiff had not been allowed to examine the physical evidence against him;

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because the phone had been destroyed, the violation could not be cured through a reissuance and

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rehearing of the RVR. The reviewer also found in favor of Plaintiff regarding the absence of a

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supplemental report by Officer Bohlander.

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Plaintiff alleges that the actions of Defendants Pina and Arrendondo violated the Cruel and
Unusual Punishments Clause of the Eighth Amendment.
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Eighth Amendment Claim

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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). To state a claim, Plaintiff must demonstrate that each

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defendant personally participated in the deprivation of his rights. Iqbal, 556 U.S. at __, 129 S.Ct.

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at 1949; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City

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of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones, 297 F.3d at 934.

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The Eighth Amendment protects prisoners from inhumane methods of punishment and from

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inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006).

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Extreme deprivations are required to make out a conditions of confinement claim, and only those

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deprivations denying the minimal civilized measure of life’s necessities are sufficiently grave to form

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the basis of an Eighth Amendment violation. Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995

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(1992) (citations and quotations omitted). In order to state a claim for violation of the Eighth

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Amendment, Plaintiff must allege facts sufficient to support a claim that prison officials knew of and

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disregarded a substantial risk of serious harm to him. E.g., Farmer v. Brennan, 511 U.S. 825, 847,

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114 S.Ct. 1970 (1994); Thomas v. Ponder, 611 F.3d 1144, 1151-52 (9th Cir. 2010); Foster v.

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Runnels, 554 F.3d 807, 812-14 (9th Cir. 2009); Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).

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The events at issue in this action do not give rise to an Eighth Amendment claim. The facts

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cannot and will not support a claim that Defendants Pina and Arrendondo knowingly disregarded
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a substantial risk of harm to Plaintiff’s health or safety. Therefore, this claim shall be dismissed,

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with prejudice.

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C.

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Although Plaintiff alleges only an Eighth Amendment claim, his allegations are more

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appropriately addressed under the Due Process Clause of the Fourteenth Amendment, which protects

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prisoners against the deprivation of liberty without the procedural protections to which they are

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entitled under the law. Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384 (2005). To state a

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claim, Plaintiff must first identify the interest at stake. Wilkinson, 545 U.S. at 221. Liberty interests

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may arise from the Due Process Clause or from state law. Id. The Due Process Clause itself does

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not confer on inmates a liberty interest in avoiding more adverse conditions of confinement, id. at

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221-22 (citations and quotation marks omitted), and under state law, the existence of a liberty

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interest created by prison regulations is determined by focusing on the nature of the condition of

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confinement at issue, id. at 222-23 (citing Sandin v. Conner, 515 U.S. 472, 481-84, 115 S.Ct. 2293

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(1995)) (quotation marks omitted). Liberty interests created by prison regulations are generally

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

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relation to the ordinary incidents of prison life. Wilkinson, 545 U.S. at 221 (citing Sandin, 515 U.S.

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at 484) (quotation marks omitted); Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007).

Due Process Claim

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Plaintiff was not deprived of a protected liberty interest. The RVR was dismissed in the

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interest of justice, resulting in the reinstatement of time credits. Even assuming Plaintiff served the

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ninety-day term on C status before he succeeded in having the RVR dismissed, a loss of certain

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privileges and a reduced ability to use the outdoor exercise yard do not constitute atypical and

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significant hardship in relation to the ordinary incidents of prison life. Wilkinson, 545 U.S. at 221;

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Sandin, 515 U.S. at 484; Myron, 476 F.3d at 718. (Doc. 1, Comp., ¶8.)

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This fatal deficiency to a claim notwithstanding, the violation of state procedural protections

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does not necessarily support a federal due process claim. James v. Rowlands, 606 F.3d 646, 657 (9th

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Cir. 2010); Walker v. Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994), abrogated on other grounds by

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Sandin, 515 U.S. 472. Here, the failure to allow Plaintiff to either see the physical phone or see a

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photo of the phone does not violate the limited procedural protections Plaintiff is due under federal
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law. Wolff v. McDonnell, 418 U.S. 539, 563-71, 94 S.Ct. 2963 (1974); Walker, 14 F.3d at 1420.

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Given that Plaintiff alleges he had a witness provide a statement that he, not Plaintiff, owned the

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phone and placed it in the trash can where it was found, the phone appears to have existed; and

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Defendant Arrendondo’s written statement and testimony constitute “some evidence,” which is

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sufficient under federal law to support a finding of guilt. Superintendent v. Hill, 472 U.S. 445, 455-

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56, 105 S.Ct. 2768 (1985). Finally, the failure of Officer Bohlander to provide a supplemental

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report, while perhaps a violation of either state procedural protections or prison rules, does not run

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afoul of federal law, Walker, 14 F.3d at 1420, and while Plaintiff was apparently not allowed to call

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his witness to testify in person, the witness did provide a written statement which was considered

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by Defendant Pina, Wolff, 418 U.S. at 566.

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Thus, Plaintiff fails to state a viable due process claim because he was neither deprived of

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a protected liberty interest nor denied the limited procedural protections to which he was due under

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federal law.

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III.

Conclusion and Order

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Plaintiff’s complaint fails to state any claims under section 1983. Because the deficiencies

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are not capable of being cured through amendment, dismissal without leave to amend is appropriate.

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Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th

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Cir. 1987).

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Accordingly, for the reasons set forth above, it is HEREBY ORDERED that:

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1.

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This action is DISMISSED, with prejudice, for failure to state a claim under section
1983; and

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2.

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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

March 29, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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