Brounche S. Green v. Gibson et al

Filing 9

FIRST SCREENING ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND, for Failure to State any Claims Under Section 1983, signed by Magistrate Judge Sheila K. Oberto on 11/7/12. Amended (30) Day Deadline (Attachments: # 1 Amended Complaint Form)(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BROUNCHE S. GREEN,

CASE NO. 1:12-cv-00679-SKO PC

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Plaintiff,

FIRST SCREENING ORDER DISMISSING
COMPLAINT, WITH LEAVE TO AMEND,
FOR FAILURE TO STATE ANY CLAIMS
UNDER SECTION 1983

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v.
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CONNIE GIBSON, et al.,
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(Doc. 1)
Defendants.

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THIRTY-DAY DEADLINE
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First Screening Order
I.

Screening Requirement and Standard

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Plaintiff Brouche S. Green, 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 April 30, 2012. The Court is required to

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

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employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or

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portion thereof if the prisoner has raised claims that are legally “frivolous or malicious,” that fail to

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state a claim upon which relief may be granted, or that seek monetary relief from a defendant who

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is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any

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portion 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 granted.”

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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, 678, 129 S.Ct. 1937 (2009) (citing Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and courts “are not required to

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indulge unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)

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(internal quotation marks and citation omitted). While factual allegations are accepted as true, legal

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conclusions are not. Iqbal, 556 U.S. at 678.

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While prisoners proceeding pro se in civil rights actions are still entitled to have their

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

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now 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 678 (quotation marks omitted); Moss v. U.S. Secret Service, 572 F.3d 962, 969

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(9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere

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consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678

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(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 Correctional Training Facility in Soledad,

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California, brings this suit against Warden Connie Gibson; Captains Diaz, Variz, Rangel, and

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Gonzales; and Correctional Counselors Oliveira, Gritchlow, Bugarin, Chavez, Smith, Belmap,

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Bugni, Cribbs, and White for violating his rights while he was at California State Prison-Corcoran

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(CSP-Corcoran).

Summary of Allegations

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In March 2011, Facility 3B at CSP-Corcoran converted from a Level III yard to a Level IV

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yard, necessitating the rehousing of Level III inmates. (Comp., court record pp. 3, 4, 19, 20.) All

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cases were required to be scheduled for classification committee prior to referral to classification

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services representatives (CSR) for endorsement, and inmates who were scheduled or projected for

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Board of Parole Hearings (BPH) reviews within six months of CSR review were not eligible for

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transfer.
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Plaintiff, who was a Level III inmate, had a BPH review scheduled for June 3, 2011, although
the review did not occur until September 6, 2011.

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On June 25, 2011, and on August 1, 2011, Plaintiff filed inmate appeals regarding his

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placement. On August 31, 2011, Plaintiff appeared for his annual review and he was classified as

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a Level II inmate at that time. On September 15, 2011, Plaintiff appeared before the unit

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classification committee (UCC), and he was told he would be “special transferred” immediately.

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(Comp., p. 4.) On October 4, 2011, Plaintiff alleges that he was placed on “confined to quarters”

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(CTQ) status to “shut up” his appeals attempts. (Id.) On October 21, 2011, Plaintiff again appeared

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before the UCC due to an error at the prior hearing, and he complained about his CTQ status.

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Defendant Rangel said the housing procedures were all messed up and it was out of her hands.

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In November 2011, Plaintiff was moved into a Level IV Enhanced Outpatient (EOP) unit for

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mentally ill prisoners. Plaintiff spoke with a correctional counselor, who told him that she would

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talk to Defendants Gritchlow, Bargarin, and Diaz because Plaintiff’s housing was “illegal,” but

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because she was assigned only to help EOP inmates, that was all she could do for him. Plaintiff

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filled out a request for interview form and gave it to Sergeant Mendes, who said he would talk to

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Defendant Rangel.

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In December 2011, Plaintiff was moved from the EOP unit to a yard which housed Level I

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inmates who were excluded from Level I minimum security facility placement due to disciplinary

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issues. Plaintiff talked to Defendant Belmap, who said Plaintiff was being placed on orientation

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status as a new arrival and he was considered a Level I inmate. Plaintiff showed Defendant

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documentation which showed otherwise, and Defendant said someone had messed up and passed

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his file on to avoid trouble.

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On December 31, 2011, Plaintiff sent Defendant Variz a written request form seeking relief
and complaining about lack of law library access, exercise, and other program opportunities.

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Plaintiff spoke with Defendant Belmap again on January 8, 2012, and Defendant passed the

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issue to Defendant Smith, who spoke with Plaintiff on various occasions but failed to validate

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Plaintiff’s concerns.

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On February 9, 2012, a UCC hearing was held with Plaintiff in absentia, and he was cleared

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for night yard. Plaintiff alleges, however, that a night yard was never run in a Level IV housing unit.

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Supported by the foregoing, Plaintiff is challenging his classification and housing

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assignments, and he alleges that he was denied exercise, adequate hygiene, law library access, and

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other program opportunities. Plaintiff further alleges that he was improperly denied a transfer to a

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Level II facility and he was improperly endorsed for transfer to an institution only eighty-five miles

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from Nevada.

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B.

Claims
1.

Retaliation

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“Within the prison context, a viable claim of First Amendment retaliation entails five basic

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elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because

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of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his

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First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional

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goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); accord Watison v. Carter, 668

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F.3d 1108, 1114-15 (9th Cir. 2012); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009).

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Although Plaintiff has a protected right to file prison grievances, his conclusory allegations

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that he was retaliated against are insufficient to support a viable claim. Plaintiff has not alleged

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sufficient facts to state a plausible retaliation claim against any of the named defendants.

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2.

Denial of Access to the Law Library

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Plaintiff does not have a freestanding right to law library access. Lewis v. Casey, 518 U.S.

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343, 351, 116 S.Ct. 2174 (1996). A viable claim for denial of access to the courts requires a showing

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that Plaintiff sustained an actual injury to litigation and his complaint is devoid of any facts which

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support such a claim. Lewis, 518 U.S. at 351-52; Nevada Dep’t of Corr. v. Greene, 648 F.3d 1014,

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1018 (9th Cir. 2011).

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3.

Classification and Housing Issues
a.

Due Process

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The Due Process Clause protects Plaintiff against the deprivation of liberty without the

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procedural protections to which he is entitled under the law. Wilkinson v. Austin, 545 U.S. 209,
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221, 125 S.Ct. 2384 (2005). To state a claim, Plaintiff must first identify the interest at stake.

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Wilkinson, 545 U.S. at 221. Liberty interests may arise from the Due Process Clause or from state

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law. Id. The Due Process Clause itself does not confer on inmates a liberty interest in avoiding more

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

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

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

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U.S. 472, 481-84, 115 S.Ct. 2293 (1995)) (quotation marks omitted). Liberty interests created by

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

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significant hardship on the inmate in relation to the ordinary incidents of prison life. Id. (citing

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Sandin, 515 U.S. at 484) (quotation marks omitted); Myron v. Terhune, 476 F.3d 716, 718 (9th Cir.

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2007).

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Plaintiff does not have a freestanding constitutional right to a particular classification level

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or to be housed in a particular prison, see Olim v. Wakinekona, 461 U.S. 238, 244-45, 103 S.Ct.

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1741 (1983) (no justifiable expectation of incarceration in a particular state); Meachum v. Fano, 427

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U.S. 215, 224-25, 96 S.Ct. 2532 (1976) (no justifiable expectation of incarceration in a particular

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prison within a state), and Plaintiff’s complaint is devoid of any facts which would support the

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existence of state-created liberty interest in either, Wilkinson, 545 U.S. at 222-23; Myron v. Terhune,

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476 F.3d 716, 718 (9th Cir. 2007).

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b.

Eighth Amendment

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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).

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Prison officials have a duty to ensure that prisoners are provided adequate shelter, food,

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clothing, sanitation, medical care, and personal safety. Johnson v. Lewis, 217 F.3d 726, 731 (9th

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Cir. 2000) (quotation marks and citations omitted). To maintain an Eighth Amendment claim based
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on conditions of confinement, a prisoner must show that prison officials were deliberately indifferent

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to a substantial risk of harm to his health or safety. E.g., Farmer v. Brennan, 511 U.S. 825, 847, 114

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

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554 F.3d 807, 812-14 (9th Cir. 2009); Johnson, 217 F.3d at 731; Frost v. Agnos, 152 F.3d 1124,

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1128 (9th Cir. 1998).

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Plaintiff’s attempt to base an Eighth Amendment claim on his classification and housing

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assignments fails, Farmer, 511 U.S. at 847; Hudson, 503 U.S. at 9, and Plaintiff’s conclusory

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allegations regarding lack of exercise and adequate sanitation are not sufficient to support a viable

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claim. Plaintiff must allege sufficient facts to support the existence of an objectively grave condition

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of confinement and to demonstrate deliberate indifference to that condition by one or more named

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defendants.

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4.

Equitable Relief

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Finally, Plaintiff seeks declaratory and injunctive relief. Because Plaintiff’s claims for

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damages necessarily entail a determination whether his rights were violated, his separate request for

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declaratory relief is subsumed by those claims. Rhodes, 408 F.3d at 565-66 n.8 (quotation marks

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omitted). Further, because Plaintiff is no longer incarcerated at CSP-Corcoran, he lacks standing to

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pursue any claims for injunctive relief. Summers v. Earth Island Institute, 555 U.S. 488, 493, 129

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S.Ct. 1142, 1149 (2009); Mayfield v. United States, 599 F.3d 964, 969-73 (9th Cir. 2010); Nelson

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v. Heiss, 271 F.3d 891, 897 (9th Cir. 2001). In the event that Plaintiff is able to cure the deficiencies

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in his claims as identified in the preceding subsections, he is limited to seeking damages.

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III.

Conclusion and Order

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Plaintiff’s complaint fails to state any claims under section 1983. The Court will provide

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Plaintiff with the opportunity to file an amended complaint. Lopez v. Smith, 203 F.3d 1122, 1130

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(9th Cir. 2000); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff may not change

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the nature of this suit by adding new, unrelated claims in his second amended complaint. George

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v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

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

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each named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 556
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U.S. at 676-77. Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a

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right to relief above the speculative level. . . .” Twombly, 550 U.S. at 555 (citations omitted).

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Plaintiff must link the named defendants to the participation in the violation at issue. Iqbal,

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556 U.S. at 676-77, 129 S.Ct. at 1948-49; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-

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21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v.

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Williams, 297 F.3d 930, 934 (9th Cir. 2002). Liability may not be imposed on supervisory personnel

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under the theory of respondeat superior, Iqbal, 556 U.S. at 676-77, 129 S.Ct. at 1948-49; Ewing, 588

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F.3d at 1235, and administrators or supervisors may only be held liable if they “participated in or

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directed the violations, or knew of the violations and failed to act to prevent them,” Taylor v. List,

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880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011);

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Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009); Preschooler II v. Clark County School Board

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of Trustees, 479 F.3d 1175, 1182 (9th Cir. 2007); Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir.

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1997). Some culpable action or inaction must be attributable to each named defendant. Starr, 652

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F.3d at 1205; Jeffers v. Gomez, 267 F.3d 895, 914-15 (9th Cir. 2001); Redman v. County of San

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Diego, 942 F.2d 1435, 1446-47 (9th Cir. 1991); Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989).

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Finally, an amended complaint supercedes the original complaint, Lacey v. Maricopa County,

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693 F.3d 896, 907 n.1 (9th Cir. 2012) (en banc), and it must be “complete in itself without reference

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to the prior or superceded pleading,” Local Rule 220.

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Accordingly, it is HEREBY ORDERED that:

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1.

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Plaintiff’s complaint is dismissed, with leave to amend, for failure to state any claims
under section 1983;

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2.

The Clerk’s Office shall send Plaintiff a civil rights 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; and

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If Plaintiff fails to file an amended complaint in compliance with this order, this
action will be dismissed, with prejudice, for failure to state a claim.

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IT IS SO ORDERED.

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Dated:
ie14hj

November 7, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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