Patterson v. Smith et al

Filing 9

ORDER DISMISSING 1 COMPLAINT WITH LEAVE TO AMEND signed by Magistrate Judge Gary S. Austin on 12/15/2011. First Amended Complaint due within thirty (30) days. (Attachments: # 1 Amended Complaint Form). (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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RONALD PATTERSON,

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Plaintiff,

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CASE NO. 1:11-cv-01552 GSA PC
ORDER DISMISSING COMPLAINT, WITH
LEAVE TO FILE AMENDED COMPLAINT
WITHIN THIRTY DAYS

v.
T. E. SMITH, et al.,

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(ECF No. 1)
Defendants.
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Screening Order
I.

Screening Requirement

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983. Plaintiff has consented to magistrate judge jurisdiction pursuant to

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28 U.S.C. § 636(c).

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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 fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall

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dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a

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claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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II.

Plaintiff’s Claims

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On August 15, 2009, a disturbance occurred between Black and Hispanic inmates at Avenal

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State Prison. Plaintiff was issued a lock-up order for his participation, and was placed in

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Administrative Segregation (AdSeg). On August 16, 2009, Plaintiff was moved to Solano State

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Prison pending investigation. Plaintiff was charged, and on October 2, 2009, was found guilty of

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participation in a riot, and assessed a 4 month Security Housing Unit (SHU) term. Plaintiff appealed

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the guilty finding, and the disciplinary charge was re-heard, with a finding of not guilty. The original

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guilty finding was reversed based upon a diagram entered into evidence at the original hearing.

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Plaintiff was referred to as number 190 on the crime scene diagram. On appeal, it was found that

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number 190 did not exist on the crime scene diagram.

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Plaintiff alleges that as a result of this process, he was moved farther away from family and

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friends, and also lost items of personal property. Plaintiff also lost his prison job. Plaintiff filed a

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claim with the Board of Victim Compensation, which was denied. Plaintiff alleges that “if all the

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defendants would have done their job thoroughly, then I wouldn’t have been wrongly accused of

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participating in a riot. By doing so I was falsely imprisoned for my SHU term” (Compl. ¶ IV.)

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

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color of state law and (2) the defendant deprived him of rights secured by the Constitution or federal

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law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). “A person deprives

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another of a constitutional right, where that person ‘does an affirmative act, participates in another’s

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affirmative acts, or omits to perform an act which [that person] is legally required to do that causes

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the deprivation of which complaint is made.” Hydrick v. Hunter, 500 F.3d 978, 988 (9th Cir. 2007)

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(quoting Johnson v. Duffy, 588 F.2d 740, 743 9th Cir. 1978)). “[T]he ‘requisite causal connection

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can be established not only by some kind of direct, personal participation in the deprivation, but also

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by setting in motion a series of acts by others which the actors knows or reasonably should know

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would cause others to inflict the constitutional injury.’” Id. (quoting Johnson at 743.44).

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A.

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The Due Process Clause protects prisoners from being deprived of liberty without due

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process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a cause of action

Prison Disciplinary Process

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for deprivation of due process, a plaintiff must first establish the existence of a liberty interest for

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which the protection is sought. “States may under certain circumstances create liberty interests

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which are protected by the Due Process Clause.” Sandin v. Conner, 515 U.S. 472, 483-84 (1995).

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Liberty interests created by state law are generally limited to freedom from restraint which “imposes

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atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.”

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Id. 515 U.S. at 484.

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“Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply

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of rights due a defendant in such proceedings does not apply.” Wolff v. McDonnell, 418 U.S. 539,

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556 (1974). With respect to prison disciplinary proceedings, the minimum procedural requirements

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that must be met are: (1) written notice of the charges; (2) at least 24 hours between the time the

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prisoner receives written notice and the time of the hearing, so that the prisoner may prepare his

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defense; (3) a written statement by the fact finders of the evidence they rely on and reasons for taking

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disciplinary action; (4) the right of the prisoner to call witnesses and present documentary evidence

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

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or correctional goals; and (5) legal assistance to the prisoner where the prisoner is illiterate or the

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issues presented are legally complex. Id. at 563-71. Confrontation and cross examination are not

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generally required. Id. at 567. As long as the five minimum Wolff requirements are met, due

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process has been satisfied. Walker v. Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994).

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Plaintiff alleges no facts indicating that he was deprived of due process at his disciplinary
hearing. That Plaintiff’s conviction was reversed does not subject the hearing officer to liability.

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Further, Plaintiff is advised that when a prisoner challenges the legality or duration of his

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custody, or raises a constitutional challenge which could entitle him to an earlier release, his sole

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federal remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 (1973); Young v.

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Kenny, 907 F.2d 874 (9th Cir. 1990), cert. denied 11 S.Ct. 1090 (1991).

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Where the complaint states a habeas claim instead of a § 1983 claim, the court should dismiss

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the claim without prejudice for failure to exhaust, rather than converting it to a habeas and

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addressing it on the merits. See Blueford v. Prunty, 108 F.3d 251, 255 (9th Cir. 1997); Trimble v.

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City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995). Where the complaint alleges claims that sound
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in habeas and claims that do not, the court should allow the non-habeas claims to proceed. See

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Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 681-82 (9th Cir. 1984).

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B.

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Regarding any claim that Plaintiff was transferred to a facility away from his family as a

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result of his disciplinary process, prisoners have no liberty interest in being housed at a particular

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institution. See Olim v. Wakinekona, 461 U.S. 238, 245 (1983); Meachum v. Fano, 427 U.S. 215,

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225-27 (1976); United States v. Brown, 59 F.3d 102, 105 (9th Cir. 1991)(per curiam); Johnson v.

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Moore, 948 F.2d 517, 519 (9th Cir. 1991)(per curiam); Coakley v. Murphy, 884 F.2d 1218, 1221 (9th

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Cir. 1989). This claim should therefore be dismissed.

Transfer

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C.

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A state prisoner has no cause of action under 42 U.S.C. sect. 1983 for an unauthorized

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deprivation of property, either intentional or negligent, by a state employee if a meaningful state

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post-deprivation remedy for the loss is available. Hudson v. Palmer, 468 U.S. 517, 533 (1984).

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California law provides an adequate post-deprivation remedy for any property deprivations. Barnett

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v. Centoni, 31 F.3d 813, 816-817 (9th Cir. 1994). Cal. Gov’t Code §§ 905.2, 910, 911.2, 945.4, 950-

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950.2 . Any claim for deprivation of personal property should therefore be dismissed.

Property

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D.

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Regarding the loss of Plaintiff’s prison job, prisoners have no constitutional right to a prison

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job or educational opportunties. Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir. 1985); Baumann v.

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Arizona Dep’t of Corrections, 754 F.2d 841, 846 (9th Cir. 1985); Hoptowit v. Ray, 682 F.2d 1237,

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1254-55 (9th Cir. 1982). Prisoners have no protected constitutional right to any work assignment.

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Toussaint v. McCarthy, 801 F.2d 1080, 1094-95 (9th Cir. 1986), cert. denied 481 U.S. 1069 (1987).

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This claim should therefore be dismissed.

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III.

Prison Job

Conclusion and Order

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The Court has screened Plaintiff’s complaint and finds that it does not state any claims upon

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which relief may be granted under section 1983. The Court will provide Plaintiff with the

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opportunity to file an amended complaint curing the deficiencies identified by the Court in this order.

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Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff is cautioned that he may not
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change the nature of this suit by adding new, unrelated claims in his amended complaint. George,

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507 F.3d at 607 (no “buckshot” complaints).

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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what each

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named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal rights,

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Hydrick, 500 F.3d at 987-88. Although accepted as true, the “[f]actual allegations must be

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[sufficient] to raise a right to relief above the speculative level . . . .” Bell Atlantic Corp. v.

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Twombly, 127 S.Ct. 1955, 1965 (2007) (citations omitted).

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Finally, Plaintiff is advised that an amended complaint supercedes the original complaint,

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Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567

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(9th Cir. 1987), and must be “complete in itself without reference to the prior or superceded

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pleading,” Local Rule 15-220. Plaintiff is warned that “[a]ll causes of action alleged in an original

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complaint which are not alleged in an amended complaint are waived.” King, 814 F.2d at 567 (citing

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to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth, 114 F.3d at

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1474.

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Accordingly, based on the foregoing, it is HEREBY ORDERED that:

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1.

Plaintiff’s complaint is dismissed, with leave to amend, for failure to state a claim;

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2.

The Clerk’s Office shall send to Plaintiff a complaint form;

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3.

Within thirty (30) days from the date of service of this order, Plaintiff shall file an

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amended complaint;
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Plaintiff may not add any new, unrelated claims to this action via his amended

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complaint and any attempt to do so will result in an order striking the amended

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complaint; and

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5.

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If Plaintiff fails to file an amended complaint, the Court will recommend that this
action be dismissed, with prejudice, for failure to state a claim.

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IT IS SO ORDERED.
Dated:

December 15, 2011

/s/ Gary S. Austin
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6i0kij

UNITED STATES MAGISTRATE JUDGE

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