Bausman v. Cate et al

Filing 9

ORDER Dismissing Complaint without Prejudice for Failure to State a Cognizable Claim, signed by Magistrate Judge Stanley A. Boone on 9/19/13. CASE CLOSED. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BARRY A. BAUSMAN,

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Plaintiff,
v.

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MATTHEW CATE, et al.,

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Defendants.

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Case No.: 1:12-cv-00880-SAB (PC)
ORDER DISMISSING COMPLAINT WITHOUT
PREJUDICE FOR FAILURE TO STATE A
COGNIZABLE CLAIM
(ECF No. 1)

Plaintiff Barry A. Bausman is appearing pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983. Pursuant to 28 U.S.C. § 636(c)(1), Plaintiff has consented to the

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jurisdiction of the United States magistrate judge. Local Rule 305(b).

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Plaintiff filed the instant petition for writ of habeas corpus on May 30, 2012.
I.

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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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A complaint must contain “a short and plain statement of the claim showing that the pleader is

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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 (2009) (citing Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each named defendant personally

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participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County,

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Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010).

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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, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive

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

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

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556 U.S. at 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer

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possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely

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consistent with’ a defendant’s liability” falls short of satisfying the plausibility standard. Iqbal, 556

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U.S. at 678; Moss, 572 F.3d at 969.

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II.

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COMPLAINT ALLEGATIONS

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Plaintiff’s claims against the named defendants arise out of his disciplinary rules violation of

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June 30, 2011. On June 30, 2011, Plaintiff contends he was attacked by his cellmate inmate Miller,

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which resulted in Plaintiff receiving a CDC 115 Rules Violation Report for fighting. As a result of the

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rules violation, Plaintiff was assessed a credit forfeiture of ninety days. Plaintiff names several

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defendants in his complaint and contends that the rules violation report is not supported by sufficient

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evidence and the California Department of Corrections and Rehabilitation (“CDCR”) has an

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underground/unwritten policy that allows officers to “cherry pick” and coach facts to “damn” an

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inmate in a 115 disciplinary hearing. As a result of the rules violation, Plaintiff credit of 90 days was

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lost.

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Plaintiff requests to have the rules violation report reversed and/or dismissed, CDCR be required

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to institute clear and improved guidelines, one’s past behavior be taken into consideration in the

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absence of an eyewitness to the incident, and CDCR be ordered to cease and desist with the

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underground/unwritten policy that requires an inmate to allow himself to be attacked in order to avoid

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being issued a rules violation report for fighting.

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III.

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DISCUSSION

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A.

Section 1983 Relief is Barred by Disciplinary Conviction

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Plaintiff’s section 1983 claim challenging the disciplinary proceedings is barred by Heck v.

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Humphrey, 512 U.S. 477 (1994) and Edwards v. Balisok, 520 U.S. 641 (1997). A state prisoner’s

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section 1983 complaint is not cognizable if success on the claim would necessarily imply the

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invalidity of his sentence. Heck, 512 U.S. at 486-487. Further, a prisoner’s section 1983 challenge to

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disciplinary hearing procedures is barred if a judgment in his favor would necessarily imply the

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invalidity of the resulting loss of good-time credits. Edwards, 520 U.S. at 646. Here, a decision in

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Plaintiff’s favor would necessarily imply the invalidity of his guilty findings and the loss of credits,

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and would necessarily affect his release date. Accordingly, Plaintiff may not pursue his claims

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challenging the disciplinary violation in the action, and the instant complaint must be dismissed

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without prejudice.

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B.

Leave to Amend Should be Denied

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If a complaint is dismissed, a pro se litigant must be given leave to amend unless it is absolutely

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clear that the deficiencies of the complaint cannot be cured by amendment. Karim-Panahi v. Los

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Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988); Noll v. Carlson, 809 F.2d 1446, 1448 (9th

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Cir. 1987). Nevertheless, “[u]nder Ninth Circuit case law, district courts are only required to grant

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leave to amend if a complaint can possibly be saved. Courts are not required to grant leave to amend

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if a complaint lacks merit entiretly.” Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000). If

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amendment would be futile, the Court may exercise its discretion and deny leave to amend. Id.

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Because it is clear that this action is barred by Heck and the deficiencies are incurable, leave to amend

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would be futile.
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IV.

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ORDER

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Based on the foregoing,
IT IS HEREBY ORDERED that the instant complaint is dismissed without prejudice for failure
to state a cognizable claim.

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IT IS SO ORDERED.

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Dated:

September 19, 2013

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UNITED STATES MAGISTRATE JUDGE
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