Cienfuegos v. Gipson et al

Filing 8

ORDER Dismissing Complaint with Leave to Amend for Failure to State a Claim for Which Relief May be Granted, signed by Magistrate Judge Dennis L. Beck on 7/18/14. 30-Day Deadline. (Attachments: # 1 Amended Complaint Form)(Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LEO CIENFUEGOS,

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Plaintiff,

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v.

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Case No. 1:14-cv-00215 AWI DLB PC
ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND FOR FAILURE TO
STATE A CLAIM FOR WHICH RELIEF
MAY BE GRANTED

GIPSON, et al.,
THIRTY-DAY DEADLINE

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Defendants.

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Plaintiff Leo Cienfuegos (“Plaintiff”) is a California state prisoner proceeding pro se in this

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action pursuant to 42 U.S.C. § 1983.1 Plaintiff filed his complaint on February 18, 2014.

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A.

SCREENING REQUIREMENT
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.

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§ 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been paid,

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the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . .

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fails to state a claim upon which relief may be granted.” 28 U.S.C.

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Plaintiff paid the filing fee and is not proceeding in forma pauperis.

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§ 1915(e)(2)(B)(ii).
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, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly,

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550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual matter, accepted as true, to

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‘state a claim that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 555). While factual

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allegations are accepted as true, legal conclusions are not. Id.

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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). Plaintiff’s allegations must link the actions or

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omissions of each named defendant to a violation of his rights; there is no respondeat superior

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liability under section 1983. Iqbal, 556 U.S. at 676-77; Simmons v. Navajo County, Ariz., 609 F.3d

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1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009);

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Jones, 297 F.3d at 934. Plaintiff must present factual allegations sufficient to state a plausible claim

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for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

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The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S.

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

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B.

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SUMMARY OF PLAINTIFF’S ALLEGATIONS
Plaintiff is currently incarcerated in the Security Housing Unit (“SHU”) at Corcoran State

Prison (“CSP”) in Corcoran, California, where the events at issue occurred.

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Due Process Claim

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Plaintiff alleges that on September 26, 2011, he was validated as a prison gang associate

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based on insufficient, unreliable evidence that was over ten years old and had been dismissed by the

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state superior court. Plaintiff was sent to the SHU at CSP for an indefinite term.

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On March 5, 2012, Plaintiff was brought before Defendants Lambert, Pina, Nickel and Matta

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for his initial “180-Day Indeterminate SHU/Gang Status Review.” Plaintiff contends that he did not
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receive a meaningful review, and he was retained in the SHU indefinitely. Defendants Lambert,

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Pina, Nickel and Matta refused to conduct any review of Plaintiff’s gang status until February 4,

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2017 (six years after his gang validation).

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On August 9, 2012, Plaintiff was brought before Defendants Lambert, Nickel and Cano for

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his review. These Defendants also stated that they would not review Plaintiff’s gang status until

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February 4, 2017.

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On March 22, 2013, Plaintiff was brought before Defendants Sexton, Campbell, Banks-

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Graves and Mayo for his review. These Defendants told Plaintiff that they would not review his

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gang status until February 4, 2017.

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On September 17, 2013, Plaintiff was brought before Defendants Gipson and Pino for

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another review. These Defendants also stated that they would not review Plaintiff’s gang status until

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February 4, 2017.

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Plaintiff alleges that at each of these reviews, he informed each of these Defendants that the

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2001 evidence used to validate him was insufficient, unreliable, old and had been previously

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dismissed by the state superior court for lack of probable evidence. Defendants failed to act and

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correct the error, and caused Plaintiff to be held in the SHU indefinitely and without cause.

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Plaintiff contends that these reviews violated his due process rights under the Fourteenth
Amendment by denying him meaningful and timely periodic reviews.

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First Amendment Claim

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Plaintiff alleges that on September 7, 2012, he submitted an appeal regarding the above

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issues. Defendant Henry “rejected” and refused to process the appeal based on an improper reason,

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claiming that Plaintiff could not challenge the evidence used by the review hearings to continue his

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SHU confinement.

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On October 18, 2012, Plaintiff filed an appeal challenging Defendant Henry’s rejection. On

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October 24, 2012, Defendant Campbell rejected the appeal based on an improper reason, stating that

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Plaintiff could only appeal Defendant Henry’s rejection based on time constraints (not on the gang

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validation issue).

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On October 24, 2012, Plaintiff resubmitted the appeal. Defendant Cribbs rejected the appeal

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on November 5, 2012. Plaintiff contends that Defendant Cribbs gave him the “runaround” and

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refused to file the appeal. Defendant Cribbs said that Plaintiff could appeal the August 9, 2012,

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review but had to remove portions of the appeal concerning his validation and the evidence used.

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On December 4, 2012, Plaintiff resubmitted the appeal with further explanation. On January

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7, 2013, Defendant Parra cancelled the appeal for improper reasons, citing a time constraint

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violation.
Plaintiff then filed a new appeal challenging Defendant Parra’s cancellation. Defendants

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Parra and Perez denied the appeal for the same improper reason- a time constraint violation.

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Plaintiff contends that these rejections were unsupported and violate Plaintiff’s First

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Amendment right to access to the courts.

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C.

DISCUSSION

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1.

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

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

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

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

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Conner, 515 U.S. 472, 481-84, 115 S.Ct. 2293 (1995)) (quotation marks omitted). Liberty interests

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

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and significant hardship on the inmate in relation to the ordinary incidents of prison life. Wilkinson,

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545 U.S. at 221 (citing Sandin, 515 U.S. at 484) (quotation marks omitted); Myron v. Terhune, 476

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F.3d 716, 718 (9th Cir. 2007). If a protected interest is identified, the inquiry then turns to what

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process is due. Wilkinson, 545 U.S. at 224.

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The assignment of validated gang members and associates to the SHU is an administrative

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measure rather than a disciplinary measure, and is “essentially a matter of administrative discretion.”

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Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir. 2003) (quoting Munoz v. Rowland, 104 F.3d 1096,

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1098 (9th Cir. 1997)). As a result, prisoners are entitled to the minimal procedural protections of

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adequate notice, an opportunity to be heard, and periodic review. Bruce, 351 F.3d at 1287 (citing

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Toussaint v. McCarthy, 801 F.2d 1080, 1100-01 (9th Cir. 1986), abrogated in part on other grounds

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by Sandin v. Connor, 515 U.S. 472, 115 S.Ct. 2293 (1995)). In addition to these minimal

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protections, there must be “some evidence” bearing “some indicia of reliability” supporting the

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decision. Castro v. Terhune, 712 F.3d 1304, 1314 (9th Cir. 2013) (citing Superintendent v. Hill, 472

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U.S. 445, 456, 105 S.Ct. 2768 (1985) and Bruce, 351 F.3d at 1287) (internal quotation marks

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omitted).

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Here, Plaintiff contends that Defendants’ refusal to review his gang validation until 2017 did

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not constitute meaningful review, especially where he alleges that the evidence used to validate him

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was insufficient. Insofar as Plaintiff contends that his reviews were meaningless because Defendants

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refused to review his gang validation, he does not state a claim. The Ninth Circuit has determined

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that California’s periodic review procedure comports with due process. See Torres v. Cate, 501 Fed.

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Appx. 662, 662–663 (9th Cir. 2012). Plaintiff alleges that he was validated on September 26, 2011,

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he received and that received hearings on March 5, 2012, August 9, 2012, March 22, 2013 and

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September 17, 2013.

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Even though Plaintiff alleges that Defendants refused to review his gang validation at these

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hearings, such a review is not required by due process. Instead, Plaintiff’s periodic reviews are

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simply to determine whether his continued housing assignment is proper given the administrative

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needs of the prison. Toussaint v. McCarthy, 801 F.2d 1080, 1101 (9th Cir.1986) (while periodic

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review of inmate’s segregated confinement is necessary, prison officials are not required to allow

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additional evidence or statements), abrogated in part on other grounds in Sandin v. Conner, 515 U.S.

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472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). Accordingly, Plaintiff fails to state a claim against

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Defendants Gipson, Lambert, Sexton, Campbell, Mayo, Cano, Banks-Graves, Matta, Nickel, and

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Pina based upon their involvement in Plaintiff’s periodic review hearings.
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To the extent that Plaintiff alleges that his gang validation was not supported by sufficient,

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reliable evidence, this may state a claim for relief. Castro, 712 F.3d at 1314. However, such a

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challenge must be brought against “the prison official [who] was the critical decision maker” in

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Plaintiff’s original gang validation. Id. at 1308. “In the case of administrative segregation founded

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upon positive gang validation, the official charged with deciding whether to transfer or retain an

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inmate in administrative segregation is the IGI. Thus, prior to validation as a gang member,

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[plaintiff is] entitled to an ‘informal nonadversary hearing’ with an IGI.” Stewart v. Alameida,418

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F.Supp.2d 1154, 1165 (N.D.Cal. 2006) (citing Toussaint, 926 F.2d at 803; and Madrid, 889 F.Supp.

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at 1276 (“[I]t is clear that the critical decisionmaker in the process is ... the IGI.”)).
Based on Plaintiff’s allegations, it is not clear who was the IGI involved in his original

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validation. Accordingly, the Court will permit Plaintiff to amend this claim to clarify the official

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who was charged as the critical decision maker in Plaintiff’s validation.

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2.

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To the extent Plaintiff believes that the refusal to process his appeals gives rise to a viable

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claim for denial of access to the courts, Plaintiff is incorrect. Such a claim accrues only when an

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inmate suffers an actual injury, and speculation that the inability to pursue an appeal will lead to a

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future litigation injury is insufficient. Christopher v. Harbury, 536 U.S. 403, 415, 122 S.Ct. 2179,

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2185-87 (2002); Lewis v. Casey, 518 U.S. 343, 351 (1996); Phillips v. Hust, 588 F.3d 652, 655 (9th

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Cir. 2009).

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Access to Courts

Moreover, because there is no constitutionally protected right to a prison grievance process,

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the failure to process Plaintiff’s grievances does not state a claim for denial of due process, Ramirez

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v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003). Therefore, actions in reviewing appeals cannot serve

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as a basis for liability under section 1983. Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir.1993).

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Plaintiff therefore fails to state a claim against Defendants Henry, Campbell, Cribbs, Parra

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and Perez based on a denial of access to the courts.

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D.

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CONCLUSION AND ORDER
Plaintiff’s complaint fails to state a claim upon which relief may be granted under section

1983. The Court will provide Plaintiff with an opportunity to file an amended complaint. Akhtar,
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698 F.3d at 1212-13; Lopez, 203 F.3d at 1130. Plaintiff may only amend his claim regarding the due

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process challenge to his initial gang validation. The remaining claims cannot be cured by

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amendment.

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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 federal rights and liability may not

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be imposed on supervisory personnel under the theory of mere respondeat superior, Iqbal, 556 U.S.

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at 676-77; Starr v. Baca, 652 F.3d 1202, 1205-07 (9th Cir. 2011), cert. denied, 132 S.Ct. 2101

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(2012). Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to

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

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

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

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

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Accordingly, it is HEREBY ORDERED that:

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

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

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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.
Dated:

/s/ Dennis

July 18, 2014

L. Beck

UNITED STATES MAGISTRATE JUDGE

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