Richardson v. Department of Corrections and Rehabilitation et al

Filing 7

ORDER Dismissing Federal Claims for Failure to State Claim Upon Which Relief May Be Granted, Dismissing State Law Claims for Lack of Jurisdiction, and Directing Clerk of Court to Enter Judgment; ORDER that Dismissal Counts asn a Strike Under 28 USC 1915(G), signed by Magistrate Judge Sheila K. Oberto on 5/23/14. CASE CLOSED. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DUKE MONROE RICHARDSON, JR.,
Plaintiff,

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ORDER DISMISSING FEDERAL CLAIMS
FOR FAILURE TO STATE CLAIM UPON
WHICH RELIEF MAY BE GRANTED,
DISMISSING STATE LAW CLAIMS FOR
LACK OF JURISDICTION, AND
DIRECTING CLERK OF COURT TO
ENTER JUDGMENT

v.

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Case No. 1:14-cv-00031-SKO (PC)

DEPARTMENT OF CORRECTIONS
AND REHABILITATION, et al.,

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Defendants.
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(Doc. 1)

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ORDER THAT DISMISSAL COUNTS AS A
STRIKE UNDER 28 U.S.C. § 1915(G)

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_____________________________________/
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Screening Order

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20 I.

Background

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Plaintiff Duke Monroe Richardson, Jr., a state prisoner proceeding pro se and in forma

22 pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on January 9, 2014. Plaintiff is
23 currently incarcerated at Mountain Home Conservation Camp in Springville, California. He
24 brings this suit against prison staff at Sierra Conservation Center in Jamestown, California for
25 violating his rights with respect to the confiscation of a cell phone and the subsequent prison
26 disciplinary proceedings, which resulted in the addition of ninety days to Plaintiff‟s sentence.
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1 II.

Screening Requirement and Standard

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The Court is required to screen complaints brought by prisoners seeking relief against a

3 governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).
4 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are
5 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that
6 seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),
7 (2). “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court
8 shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to
9 state a claim upon which relief may be granted.” 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

11 pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
12 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
13 conclusory statements, do not suffice,” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937
14 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and
15 courts “are not required to indulge unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572
16 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). While factual
17 allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678.
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Under section 1983, Plaintiff must demonstrate that each defendant personally participated

19 in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This
20 requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal,
21 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). Prisoners
22 proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and
23 to have any doubt resolved in their favor, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)
24 (citations omitted), but nevertheless, the mere possibility of misconduct falls short of meeting the
25 plausibility standard, Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.
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1 III.

Discussion

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A.

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As an initial matter, Plaintiff names the California Department of Corrections and

California Department of Corrections and Rehabilitation as a Defendant

4 Rehabilitation (“CDCR”) as a defendant in this action. The Eleventh Amendment “„erects a
5 general bar against federal lawsuits brought against the state.‟” Wolfson v. Brammer, 616 F.3d
6 1045, 1065-66 (9th Cir. 2010) (quoting Porter v. Jones, 319 F.3d 483, 491 (9th Cir. 2003)).
7 CDCR, as a state agency, has absolute immunity from suit and it is dismissed from this action,
8 with prejudice. E.g., Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct.
9 900 (1984); Buckwalter v. Nevada Bd. of Medical Examiners, 678 F.3d 737, 740 n.1 (9th Cir.
10 2012).
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B.

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Plaintiff‟s claim arises out of the confiscation of a cell phone in the bunk area of his dorm.

Fourth Amendment Claim

13 Plaintiff alleges the cell phone belonged to inmate Bell and he denies being in possession of it.
14 Plaintiff was subsequently charged with a disciplinary violation for “dangerous contraband
15 (possession of cell phone),” and found guilty of the charge. (Comp., p. 21.)
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Plaintiff alleges a violation of his Fourth Amendment rights. However, an inmate has no

17 “reasonable expectation of privacy in his prison cell entitling him to the protection of the Fourth
18 Amendment against unreasonable searches and seizures.” Hudson v. Palmer, 468 U.S. 517, 536
19 (1984). Accordingly, Plaintiff‟s Fourth Amendment claim fails as a matter of law and it is
20 dismissed, with prejudice.
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C.

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Plaintiff alleges his Sixth Amendment rights were violated. While the precise basis for this

Sixth Amendment Claim

23 claim is unclear, the Sixth Amendment is meant to assure fairness in the adversary criminal
24 process, United States v. Danielson, 325 F.3d 1054, 1066 (9th Cir. 2003), and it does not have any
25 application to Plaintiff‟s prison disciplinary hearing for possession of a cell phone, Wolff v.
26 McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963 (1974) (“Prison disciplinary proceedings are not
27 part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings
28 does not apply.”) Plaintiff‟s Sixth Amendment claim is dismissed, with prejudice.
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D.

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Plaintiff alleges a claim for relief for violation of the Ninth Amendment, which provides

Ninth Amendment Claim

3 that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or
4 disparage others retained by the people.” U.S. Const., amend. IX. The Ninth Amendment does
5 not provide a basis upon which Plaintiff may impose liability under section 1983 because it does
6 not “independently [secure] any constitutional right. . . .” Strandberg v. City of Helena, 791 F.2d
7 744, 748 (9th Cir. 1986) (citations omitted); Ramirez v. Butte-Silver Bow County, 298 F.3d 1022,
8 1029 (9th Cir. 2002) (Ninth Amendment claim properly dismissed because plaintiff‟s may not
9 “„double up‟ constitutional claims”) aff’d sub nom. Groh v. Ramirez, 540 U.S. 551 (2004);
10 Schowengerdt v. United States, 944 F.2d 483, 490 (9th Cir. 1991) (Ninth Amendment “not
11 interpreted as independently securing any constitutional rights for purposes of making out a
12 constitutional claim”). Accordingly, Plaintiff‟s Ninth Amendment is dismissed, with prejudice.
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E.

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“The Fourteenth Amendment‟s Due Process Clause protects persons against deprivations

Fourteenth Amendment Due Process Claim

15 of life, liberty, or property; and those who seek to invoke its procedural protection must establish
16 that one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384
17 (2005). Assuming the existence of a protected interest at stake, prisoners are entitled to certain
18 minimal procedural protections in the context of prison disciplinary hearings. Wolff, 418 U.S. at
19 563-71; Superintendent v. Hill, 472 U.S. 445, 455-56, 105 S.Ct. 2768 (1985); see also Castro v.
20 Terhune, 712 F.3d 1304, 1314 (9th Cir. 2013).
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However, in this case, Plaintiff‟s allegations and exhibits demonstrate that he was deprived

22 of time credits as a result of being found guilty of possessing contraband. “[A] state prisoner‟s §
23 1983 action is barred (absent prior invalidation) - no matter the relief sought (damages or equitable
24 relief), no matter the target of the prisoner‟s suit (state conduct leading to conviction or internal
25 prison proceedings) - if success in that action would necessarily demonstrate the invalidity of
26 confinement or its duration.” Wilkinson v. Dotson, 544 U.S. 74, 81-2, 125 S.Ct. 1242, 1248
27 (2005). Because the punishment imposed against Plaintiff at the disciplinary hearing affects the
28 duration of his sentence, his due process claim is barred until such time as he invalidates the result
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1 of the disciplinary hearing. Therefore, Plaintiff‟s claim is dismissed, without prejudice. Heck v.
2 Humphrey, 512 U.S. 477, 489, 114 S.Ct. 2364 (1994) (until and unless favorable termination of
3 the conviction or sentence occurs, no cause of action under section 1983 exists).
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F.

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Finally, Plaintiff alleges the violation of various state penal code sections.

Penal Code Violations
Given

6 Plaintiff‟s failure to state any claims upon which relief may be granted under federal law, the
7 Court lacks jurisdiction over any state law claims and they are dismissed. 28 U.S.C. § 1367(a);
8 Herman Family Revocable Trust v. Teddy Bear, 254 F.3d 802, 805 (9th Cir. 2001).
9 IV.
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Conclusion and Order
Plaintiff‟s complaint fails to state any claims upon which relief may be granted under

11 section 1983. The deficiencies at issue are not curable through amendment, Akhtar v. Mesa, 698
12 F.3d 1202, 1212-13 (9th Cir. 2012); Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000), and the
13 Court HEREBY ORDERS as follows:
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immunity;
2.

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CDCR is dismissed as a defendant, with prejudice, based on Eleventh Amendment

Plaintiff‟s Fourth, Sixth, and Ninth Amendment claims are dismissed, with
prejudice, for failure to state a claim;

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Plaintiff‟s Fourteenth Amendment due process claim is dismissed, without
prejudice, for failure to state a claim;

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4.

Plaintiff‟s state law claims are dismissed for lack of jurisdiction;

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5.

This dismissal counts as a strike under 28 U.S.C. 1915(g); and

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6.

The Clerk of the Court shall enter judgment.

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IT IS SO ORDERED.
Dated:

May 23, 2014

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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