Dews v. Arlitz et al

Filing 14

ORDER Dismissing First Amended Complaint, signed by Chief Judge Ralph R. Beistline on 1/15/15. ( Amended Complaint due by 2/20/2015) (Martin-Gill, S)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
CLARENCE LEON DEWS,
Case No. 1:14-cv-00709-RRB
Plaintiff,
ORDER DISMISSING
FIRST AMENDED COMPLAINT

vs.
ASSOCIATE WARDEN T. ARLITZ, et
al.,
Defendants.

Clarence Leon Dews, a state prisoner appearing pro se and in forma pauperis, filed
a civil rights complaint under 42 U.S.C. 1983 against numerous officials employed by the
California Department of Corrections and Rehabilitation (“CDCR”), the Kern County District
Attorney, California Department of Justice, and the California Attorney General. This Court
dismissed Dews’ Complaint with leave to amend.1 Dews has filed his Amended Complaint.2
I.

SCREENING REQUIREMENT
This Court is required to screen complaints brought by prisoners seeking relief

against a governmental entity or officer or employee of a governmental entity.3 This Court
must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

1

Docket 12.

2

Docket 13. Dews has named as Defendants: T. Arlitz (Associate Warden),
Caroline Waddell (Correctional Lieutenant); T. Castellanos (Correctional Sergeant); I. E.
Garza (Correctional Counselor II); R. Chanelo (Correctional Officer); and the California
Department of Corrections and Rehabilitation.
3

28 U.S.C. § 1915A(a).

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“frivolous or malicious,” that “fails to state a claim on which relief may be granted,”
or that “seeks monetary relief against a defendant who is immune from such relief.”4
Likewise, a prisoner must exhaust all administrative remedies as may be available,5
irrespective of whether those administrative remedies provide for monetary relief.6
In determining whether a complaint states a claim, the Court looks to the pleading
standard under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must
contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.”7 “[T]he pleading standard Rule 8 announces does not require ‘detailed factual
allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.”8 Failure to state a claim under § 1915A incorporates the familiar standard
applied in Federal Rule of Civil Procedure 12(b)(6), including the rule that complaints filed
by pro se prisoners are to be liberally construed, affording the prisoner the benefit of any
doubt, and dismissal should be granted only where it appears beyond doubt that the
plaintiff can plead no facts in support of his claim that would entitle him or her to relief.9

4

28 U.S.C. § 1915(e)(2)(B); 42 U.S.C. § 1997e(c); see Lopez v. Smith, 203 F.3d
1122, 1126 & n.7 (9th Cir. 2000) (en banc).
5

42 U.S.C. § 1997e(a); see Woodford v. Ngo, 548 U.S. 81, 93–95 (2006) (“proper
exhaustion” under § 1997e(a) is mandatory and requires proper adherence to
administrative procedural rules); Booth v. Churner, 532 U.S. 731, 741 (2001) (exhaustion
of administrative remedies must be completed before filing suit).
6

See Booth, 532 U.S. at 734.

7

Fed. R. Civ. P. 8(a)(2).

8

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 554, 555 (2007)).
9

Wilhelm v. Rotham, 680 F.3d 1113, 1121 (9th Cir. 2012).

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This requires the presentation of factual allegations sufficient to state a plausible
claim for relief.10 “[A] complaint [that] pleads facts that are ‘merely consistent with’ a
defendant’s liability . . . ‘stops short of the line between possibility and plausibility of
entitlement to relief.’”11 Further, although a court must accept as true all factual allegations
contained in a complaint, a court need not accept a plaintiff’s legal conclusions as true.12
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”13
Prisoner pro se pleadings are given the benefit of liberal construction.14 While this
Court must liberally construe papers filed by pro se parties, pro se parties must none-theless follow the applicable rules of practice and procedure. 15
II.

GRAVAMEN OF COMPLAINT/RELIEF REQUESTED
Dews is disabled: wheelchair bound with limited mobility and use of his left arm.

Dews’ Amended Complaint alleges six claims for relief arising out of his incarceration at
the Kern Valley State Prison.

10

Iqbal, 556 U.S. at 678–69; see Moss v. U.S. Secret Service, 572 F.3d 962, 969
(9th Cir. 2009) (quoting and applying Iqbal and Twombly).
11

Iqbal 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).

12

Id.

13

Id. (quoting Twombly, 550 U.S. at 555).

14

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Porter v. Ollison, 620
F.3d 952, 958 (9th Cir. 2010).
15

King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the
same rules of procedure that govern other litigants.”) (overruled in part on other grounds
in Lacey v. Maricopa County, 693 F.3d 896 (9th Cir. 2012) (en banc)).
ORDER DISMISSING FIRST AMENDED COMPLAINT
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In his First Claim Dews contends that his Eighth and Fourteenth Amendment rights
were violated when: (1) he was ordered back into the prison yard by force and violence;
(2) his claims of enemy and safety concerns were ignored; (3) he was mis-housed; and
(4) his life was placed in danger.
In his Second Claim Dews contends that he was denied due process and equal
protection in connection with a disciplinary hearing. The record attached to the Amended
Complaint reveals that Dews was convicted a violation of battery on an inmate with a
weapon in violation of the California Code of Regulations, and assessed a forfeiture of
good time credit.16
In his Third Claim Dews contends that in investigating the incident underlying his
disciplinary adjudication his Fifth Amendment Miranda rights were violated.
In his Fourth Claim Dews asserts a virtual smorgasbord of claims including a failure
to provide adequate protection of a disabled person, failure to timely respond to requests
for appropriate accommodations, failure to transfer to an intermediate care medical facility,
and housing him in enemy or combative situations creating circumstances of unsafe living
conditions.
In his Fifth Claim Dews contends that the hearing officer in his rules violation
adjudication hearing violated his Fifth Amendment rights under Miranda.
In his Sixth Claim Dews alleges that the Department of Corrections has failed to
properly train its employees.

16

Docket 13, pp. 51–52.

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In his prayer for relief Dews requests that this Court dismiss Rules Violation Report
KVSP-0-14-1307 and that he be awarded $30,000,000 in damages.
III.

ANALYSIS

First and Fourth Claims for Relief
It appears that Dews requested transfer to a designated medical prison due to his
medical condition and safety concerns. Attached to the First Amended Complaint is the
First Level Response to Dews’ request dated October 25, 2013.
APPEAL ISSUE: You contend you want to be transferred to a designated
medical prison due to your current medical condition and safety concerns,
due to being housed with "abled-bodied" individuals, with proven attacks on
other "abled-bodied" young men.
INTERVIEW/EFFECTIVE COMMUNICATION: On October 25, 2013, at
approximately 1040 hrs, you were interviewed. by I. E. Garza, Correctional
Counselor CCII (A) regarding your appeal. You were afforded the opportunity
to further explain your issue and to provide any supporting evidence or
documents. During this interview, you did not have any other supporting
evidence or documents to add to your current appeal issue. You were also
asked if you had specific safety concerns and you stated "no". You were
further asked if there were any inmates currently pressuring you to do
something against your will and again you stated "no."
A review of the Test of Adult Basic Education list reveals have a Reading
Grade Point Level above 4.0, therefore, you db not require special
accommodation to achieve effective communication.
APPEAL RESPONSE: Your safety concerns were not sufficient to warrant
further investigation. During an interview, on October 25, 2013, you were
asked to if you had any current safety concerns, you stated "no." When you
were asked if there were any inmates currently pressuring you to do
something against your will, again; you stated "no." At this time, there is
insufficient information to continue investigation into your safety concerns.
Furthermore, it is noted you were recently released from the Administrative
Segregation Unit (ASU) on 10-07-13, following an investigation your selfexpressed safety concerns. The investigation into your safety concerns was
concluded on 10-06-13, and it was determined your safety concerns were
unsubstantiated, refer to the attached CDCR 1288, dated 10-06-13 .

ORDER DISMISSING FIRST AMENDED COMPLAINT
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Your appeal and departmental memorandum, dated July 9, 2013, titled
"Transfer of High Medical Risk Inmate to Appropriate Intermediate Medical
Care Institutions," have been reviewed. Current departmental policy states,
"If the inmate is identified as High Risk and is at a basic care institution,
he/she shall be referred for transfer to an appropriate intermediate medical
care institution. Correctional Counselors and Committee Chairpersons shall
make sure CDCR Form 128C-3 is reviewed during the inmate’s annual
classification review.”
A review of your file was conducted and your annual classification review is
due on November 17, 2013. Your assigned Correctional Counselor has been
notified of your concerns and a Unit Classification Committee will be
conducted to review your case factors. The Unit Classification Committee will
occur no later than November 17, 2013.
DECISION: Based on the above information, your appeal is PARTIALLY
GRANTED at the First Level of review.
If you are dissatisfied with this decision, you may appeal to the Second Level
by following the instructions on your appeal form.17
Resolution of Dews’ claims is complicated by several factors. California law provides
for three levels of review in the context of prisoner grievances.18 Here, because he has not
sought further review of his request for transfer it does not appear that Dews has
exhausted his administrative remedies. Although not jurisdictional, exhaustion is
nonetheless mandatory, and there is no discretion to excuse it.19 “Proper exhaustion”
means “complet[ing] the administrative review process in accordance with the applicable

17

Appeal Log # KVSP-0-13-02948, Docket 13, pp. 27–28.

18

Cal. Code Regs. tit. 15, § 3084.1(b) (“Unless otherwise stated in these
regulations, all appeals are subject to a third level of review, as described in section
3084.7, before administrative remedies are deemed exhausted. All lower level reviews are
subject to modification at the third level of review.”). Section 3084.7 provides for three
levels of review, the third level conducted by the Secretary of the California Department of
Corrections and Rehabilitation, or by a designated representative.
19

Porter v. Nussle, 534 U.S. 516, 524 (2002).

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rules.”20 Standing alone, however, that would not necessarily require dismissal of Dews’
claims at this stage of the proceedings. Exhaustion is an affirmative defense to be raised
and proven by the defense.21
The Constitution “does not necessitate comfortable prisons,”22 nor is the Eighth
Amendment a mandate for either “broad prison reform” or excessive federal judicial
involvement.23 The Eighth Amendment does not permit inhumane conditions, and prison
conditions are subject to scrutiny under its provisions.24 To show deliberate indifference,
the inmate must prove that “the official knows of and disregards an excessive risk to inmate
health or safety; the official must both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he must also draw the inference.”25
“Thus, Farmer [ ] requires an inmate to show that the official knew of the risk and that the
official inferred that substantial harm might result from the risk.”26 The “prison official need
not have acted ‘believing that harm actually would befall an inmate; it is enough that the

20

Jones v. Bock, 549 U.S. 199, 218 (2007).

21

Jones, 549 U.S. at 212–17; Albino v. Baca, 747 F3d 1162, 1166, 1168 (9th Cir.
2014) (en banc).
22

Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Rhodes v. Chapman, 452
U.S. 337, 349 (1981))
23

Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982) (abrogated on other
grounds by Sandlin v. O’Connor, 515 U.S. 472 (1995).
24

Farmer, 511 U.S. at 832.

25

Id. at 837; see Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (discussing
objective and subjective elements of deliberate indifference claim).
26

Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995).

ORDER DISMISSING FIRST AMENDED COMPLAINT
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official acted . . . despite his knowledge of a substantial risk of serious harm.’”14 The
question of the official’s knowledge is a question of fact.15
Dews’ conclusory allegation that he fears for his safety to the extent it is supported
principally by vague references to assaults on physically disabled inmates as well as his
fears as a result of being exposed to violence,16 standing alone, is insufficient to warrant
granting Dews relief.17 On the other hand, Dews specifically alleges that on September 14,
2013, an able-bodied inmate (Turner # G-61702) attacked and nearly beat him to death.18
Dews also alleges that on October 6, 2013, he and another able-bodied enemy (Bowen
#

G-01518) had to be separated.19 The only other definite allegation concerning physical

assault is with respect to his conviction for assaulting a fellow prisoner challenged in his

14

Id. (quoting Farmer, 511 U.S. at 842) (omission in original).

15

Farmer, 511 U.S. at 826.

16

Dews alleges “[he] was exposed to this form of able body violence in the handicap
situation of his physical health and safety, and was beaten, reported and went unreported
and has suffered both mental an[d] physical torments . . ..” Amended Complaint, Docket
13, p. 23.
17

See Farmer, 511 U.S. at 843.

18

Amended Complaint, Docket 13, p. 7. With respect to this incident Dews alleges
that no record of this assault exists except for a medical report of the emergency treatment
he received at Delano Regional Medical Center. Dews did not attach a copy of that report
to his Amended Complaint. However, attached to his Complaint is a copy of a billing
rendered for medical services provided Dews on September 14, 2013, for treatment of a
nose fracture. Complaint, Docket 1, p. 68.
19

Id. It is noted that attached as an exhibit to both the Complaint and the Amended
Complaint is a CDC 128-B Informational Chrono dated October 6, 2013, signed by
Correctional Sergeant J.M. Brown, recommended that Inmates Bowen and Dews be added
to their respective enemy lists. Complaint, Docket 1, p. 29; Amended Complaint, Docket
13, p. 30.
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Second Claim for Relief. In that instance though, as noted below, he was found to be the
instigator, not the victim. Furthermore, to the extent he alleges assaults on September 14
and October 6, 2013, those allegations are not only inconsistent with, but are directly
contradictory to, the statements he made in connection with his subsequent request for
transfer to a designated medical care facility discussed above.
Finally, Dews does not seek any affirmative relief with respect to these claims.20
Based upon the allegations of the Amended Complaint it might logically be inferred that
Dews might be seeking an order from this Court compelling CDCR to transfer him to an
appropriate prison medical facility. Unfortunately for Dews he has no constitutional right
to be incarcerated in a particular prison within a state.21 Dews makes no allegation that as
a result of his continued incarceration at KVSP he does not receive adequate care for his
disabilities or that the conditions under which he is housed do not adequately
accommodate his physical infirmities. His sole complaint appears to be that he does not
want to be housed with able-bodied prisoners.
Accordingly, at this stage of the pleadings the First and Fourth Claims for Relief
must be dismissed for failure to state claims upon which relief may be granted. The Court
notes that, while it is highly improbable that Dews can truthfully allege facts that would
warrant granting him relief under 42 U.S.C. § 1983, dismissal without leave to amend is

20

In the body of this complaint Dews appears to seek a determination by this Court
that he is unfit for housing amongst able-bodied unmates in KVSP, allegedly a prison with
a history of violence by inmates and guards and where prison riots are normal.
21

See, e.g., Williams v. Wood, 223 Fed. Appx. 670, 671 (9th Cir. 2007)
(unpublished) (citing Olim v. Wakinekona, 461 U.S. 238, 245 (1983)).
ORDER DISMISSING FIRST AMENDED COMPLAINT
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unwarranted. Accordingly, the Court will grant Dews leave to file a second amended
complaint with respect to the September 14, 2013, incident.
Second Claim for Relief
In his Second Claim for Relief Dews challenges a disciplinary action that resulted
in the loss of good-time credits—affecting the duration of Dews’ incarceration. An action
that challenges the fact or duration, not a condition, of incarceration is improperly brought
as a civil rights action under § 1983. If a prisoner is challenging the fact or duration of
his/her custody, not the conditions, it must be brought in a petition for habeas corpus relief
under 28 U.S.C. § 2254 or § 2241. 22
One of the preconditions to bringing a federal habeas petition is that a federal court
may not consider claims that have not been fairly presented to the state courts.23
Unexhausted claims must be dismissed.24 In the habeas context, exhaustion of state
remedies requires the petitioner to fairly present federal claims to the state courts in order
to give the state the opportunity to pass upon and correct alleged violations of its prisoners’

22

Preiser v. Rodriguez, 411 U.S. 475, 487–88, 490, 499–500 (1973); Docken v.
Chase, 393 F.3d 1024, 1026–27 (9th Cir. 2004); Ramirez v. Galaza, 334 F.3d 850, 856
(9th Cir. 2003).
23

28 U.S.C. § 2254(b)(1); see Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing

cases).
24

See Rhines v. Weber, 544 U.S. 269, 275-78 (2005); Engle v. Issac, 456 U.S. 107,
125 n.28 (1982); Rose v. Lundy, 455 U.S. 509, 510 (1982).
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federal rights.25 To fully exhaust his state court remedies a prisoner must present his/her
claim to the highest state court. 26
If the prisoner is proceeding pro se, the court must liberally construe the pleadings;27
thus, normally the court should simply dismiss with leave to amend providing the prisoner
with the opportunity to cure the defect, i.e., refile as a petition for habeas relief. In this case
it is obvious from the complaint that Dews has not sought relief in any form in the California
State courts—nor could he have. Thus, because he has not exhausted his claims, it is
premature as a petition for federal habeas relief and must be dismissed.28 Dismissal is,
however, without prejudice to the right of Dews to file a petition for federal habeas relief
under 28 U.S.C. § 2254 or § 2241, as appropriate.
Third and Fifth Claims for Relief
Because they attack the evidence utilized in obtaining his conviction of violating
prison regulations, Dews Third and Fifth claims are inextricably intertwined with Dews’

25

Duncan v. Henry, 513 U.S. 364, 365 (1995).

26

See Peterson v. Lampert, 319 F.3d 1153, 1155-56 (9th Cir.2003) (citing Picard
v. Connor, 404 U.S. 270, 275 (1971) and O’Sullivan v. Boerckel, 526 U.S. 838, 845
(1999)).
27

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Porter v. Ollison, 620
F.3d 952, 958 (9th Cir. 2010).
28

As a habeas petition it would consist of solely unexhausted claims, not both
exhausted and unexhausted claims. Thus, the stay and abey procedure under which the
court dismisses the unexhausted claims and holds the exhausted claims in abeyance
pending exhaustion is inapplicable. See Rose v. Lundy, 455 U.S. 509, 522 (1982); Pliler
v. Ford, 542 U.S. 225, 230 (2004) (citing Rose).
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disciplinary proceeding. Accordingly, those claims must, like his Second Claim for Relief,
must be dismissed without prejudice to raising them in a habeas proceeding.
Sixth Claim for Relief
This claim, which appears to be directed solely at the Department of Corrections
and Rehabilitation, an agency of the State of California. As such, it is barred by the
Eleventh Amendment.29
IV.

ORDER
The First and Fourth Claims for Relief are hereby DISMISSED without prejudice.
The Second, Third, and Fifth Claims for Relief are hereby DISMISSED without

prejudice to the right, if any, of Plaintiff Clarence Leon Dews to file a complaint for habeas
corpus relief under 28 U.S.C. § 2241 or § 2254.
The Sixth Claim for Relief is hereby DISMISSED with prejudice.
Plaintiff is hereby granted leave to file a Second Amended Complaint consistent with
this Order not later than Friday, February 20, 2015. In filing his Second Amended
Complaint is reminded that he must comply with the instructions contained in the Court’s
prior Dismissal Order.30 In addition, Dews is cautioned that in drafting his Second Amended
Complaint he should:
1.

Limit his claim to the alleged assault occurring on or about September 13,

2013;

29

Kentucky v. Graham, 473 U.S. 159, 169 n.17 (1985); Brown v. Cal. Dep’t. of Corr.,
554 F.3d 747, 752 (9th Cir. 2009) (applying bar to a suit against CDCR).
30

Docket 12.

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2.

Alleges sufficient facts that, if proven, would entitle him to relief, consistent

with the requirements of Farmer and Toguchi (discussed above on page 7);
3.

Identify as defendants those individuals whose conduct violated his

constitutional rights in connection with the alleged assault;
4.

Specify the relief requested from each defendant; and

5.

Affirmatively plead that he has either exhausted his administrative remedies

with respect to the claim asserted, or allege facts sufficient to excuse the exhaustion
requirement.
IT IS SO ORDERED this 15th day of January, 2015.
S/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

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