McLaughlin v. Diaz et al

Filing 12

ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND re 11 signed by Magistrate Judge Jennifer L. Thurston on 10/17/2014. Amended Complaint due by 11/20/2014. (Attachments: # 1 Complaint Form)(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARTIN McLAUGHLIN,

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Plaintiff,
v.

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ORDER DISMISSING FIRST AMENDED
COMPLAINT WITH LEAVE TO AMEND
(Doc. 11)

DIAZ, et al.,
RESPONSE DUE WITHIN 30 DAYS
Defendants.

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Case No. 1:14-cv-00784-AWI-JLT (PC)

I.

Background
In his First Amended Complaint, Martin McLaughlin, alleges that his placement in “C/C

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status” while housed at California Substance Abuse Treatment Facility and State Prison (ASATF@)

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in Corcoran, California, violated his Eighth Amendment rights. He claims also that placement on

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this status constituted Double Jeopardy because he had already been punished for the two rules

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violations which gave rise to the classification change. Also, he claims that the placement

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violated his right to equal protection of the law and that the review of his grievance related to the

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placement was improper. Because the Court does not find Plaintiff’s complaint states a

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cognizable claim, it will be DISMISSED with leave to amend.

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A.

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, malicious, fail to state a claim upon which relief may be granted, or that seek monetary

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relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2); 28 U.S.C.

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§ 1915(e)(2)(B)(i)-(iii).

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B.

Summary of the First Amended Complaint

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Plaintiff complains of acts that occurred while he was an inmate at California Substance

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Abuse Treatment Facility and State Prison (ASATF@) in Corcoran, California. Plaintiff names the

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following Defendants: Warden R. Diaz; and Correctional Officers K. Ramirez, R. Garcia, L.

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DeLaTorre, M. Hodges, UJ.D. Lozano, R. Tolson, and R. Hall. Plaintiff seeks monetary and

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declaratory relief.

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Plaintiff delineates three Causes of Action/Claims: (1) "Freedom From Cruel and

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Unusual Punishment and Double Jeopardy;" (2) "Due Process;" and (3) "Equal Protection."

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These claims are premised on Plaintiff being placed on "C/C status" in March of 2013 for two

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rule violations he received in the latter part of 2012.

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As discussed below, Plaintiff does not state any cognizable claims. Plaintiff may be able

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to amend to correct the deficiencies in his pleading and is being given the applicable standards

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based on his stated claims and a final opportunity to file an amended complaint.

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C.

Pleading Requirements
1. Federal Rule of Civil Procedure 8(a)

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"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited

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exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534

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U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). A complaint must contain "a short and plain

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statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. Pro. 8(a).

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"Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and

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the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512.

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Detailed factual allegations are not required, but A[t]hreadbare recitals of the elements of a

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cause of action, supported by mere conclusory statements, do not suffice.@ Ashcroft v. Iqbal, 556

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U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

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Plaintiff must set forth Asufficient factual matter, accepted as true, to >state a claim that is
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plausible on its face.=@ Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual

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allegations are accepted as true, but legal conclusions are not. Iqbal. at 678; see also Moss v. U.S.

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Secret Service, 572 F.3d 962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557.

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While Aplaintiffs [now] face a higher burden of pleadings facts . . . ,@ Al-Kidd v. Ashcroft,

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580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally

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and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).

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However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations," Neitze

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v. Williams, 490 U.S. 319, 330 n.9 (1989), "a liberal interpretation of a civil rights complaint may

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not supply essential elements of the claim that were not initially pled," Bruns v. Nat'l Credit

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Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents, 673 F.2d 266,

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268 (9th Cir. 1982), and courts are not required to indulge unwarranted inferences, Doe I v. Wal-

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Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation

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omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and

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“facts that are ‘merely consistent with’ a defendant’s liability” fall short of satisfying the

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plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at 969.

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If he chooses to file a second amended complaint, Plaintiff should endeavor to make it as

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concise as possible. He should merely state which of his constitutional rights he feels were

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violated by each Defendant and its factual basis.

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2. Linkage Requirement
The Civil Rights Act under which this action was filed provides:
Every person who, under color of [state law] . . . subjects, or causes to
be subjected, any citizen of the United States . . . to the deprivation of
any rights, privileges, or immunities secured by the Constitution . . .
shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress.

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42 U.S.C. ' 1983. The statute plainly requires that there be an actual connection or link between

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the actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See

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Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

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(1976). The Ninth Circuit has held that A[a] person >subjects= another to the deprivation of a

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constitutional right, within the meaning of section 1983, if he does an affirmative act, participates
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in another=s affirmative acts or omits to perform an act which he is legally required to do that

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causes the deprivation of which complaint is made.@ Johnson v. Duffy, 588 F.2d 740, 743 (9th

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Cir. 1978). In order to state a claim for relief under section 1983, Plaintiff must link each named

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defendant with some affirmative act or omission that demonstrates a violation of Plaintiff=s

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federal rights.

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Plaintiff must clearly state which Defendant(s) he feels are responsible for each violation

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of his constitutional rights and their factual basis as his Complaint must put each Defendant on

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notice of Plaintiff=s claims against him or her. See Austin v. Terhune, 367 F.3d 1167, 1171 (9th

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Cir. 2004).

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D.

Plaintiff's Claims for Relief
1. Cruel & Unusual Punishment and Double Jeopardy

In this claim, Plaintiff alleges that on March 15, 2013 he was taken to prison classification

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where Defendant De La Torre advised he was being put on "C/C status" for two rule violations

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Plaintiff received in the latter part of 2012 and Defendants K. Ramirez and R. Garcia "went

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along" with Defendant De La Torre's recommendation. (Doc. 11, p. 4.) When Plaintiff asked

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why he was being punished for a rule violation for which he had already been punishment, all

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three of these Defendants responded "because our rule book says we can do this." (Id.) About an

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hour later he was moved to a different building, not in administrative segregation, but where there

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are about fourteen "C/C status" cells. (Id., at p. 5.) When Plaintiff encountered other inmates

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whom he know that were housed nearby but not on “C/C status,” these other inmates were told

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not to talk to Plaintiff and to stay away from him. (Id.) Also, Plaintiff's T.V., radio, fan, and hot

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pot were confiscated and when he asked why, Defendant K. Ramirez told the other officers to

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take all of Plaintiff's property and told him that he was lucky to get to keep some books. (Id.)

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The cell he was put into reminded Plaintiff of administrative segregation. (Id.)

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a. Cruel & Unusual Punishment

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The Eighth Amendment protects prisoners from inhumane methods of punishment and

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from inhumane conditions of confinement. Farmer v. Brennan, 511 U.S. 825 (1994); Morgan v.

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Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Thus, no matter where they are housed, prison
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officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing,

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

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2000) (quotation marks and citations omitted). To establish a violation of the Eighth

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Amendment, the prisoner must “show that the officials acted with deliberate indifference. . . .”

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Labatad v. Corrections Corp. of America, --- F.3d ---, 2013 WL 1811273, *4 (9th Cir. May 1,

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2013) (citing Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002).

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The deliberate indifference standard involves both an objective and a subjective prong. First, the

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alleged deprivation must be, in objective terms, “sufficiently serious.” Farmer at 834. Second,

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subjectively, the prison official must “know of and disregard an excessive risk to inmate health or

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safety.” Id. at 837; Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th Cir. 1995).
Objectively, extreme deprivations are required to make out a conditions of confinement

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claim and only those deprivations denying the minimal civilized measure of life’s necessities are

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sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian,

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503 U.S. 1, 9 (1992) (citations and quotations omitted). Although the Constitution “ ‘does not

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mandate comfortable prisons,’ ” Wilson v. Seiter, 501 U.S. 294, 298 (1991) (quoting Rhodes, 452

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U.S. at 349), “inmates are entitled to reasonably adequate sanitation, personal hygiene, and

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laundry privileges, particularly over a lengthy course of time,” Howard, 887 F.2d at 137. Some

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conditions of confinement may establish an Eighth Amendment violation “in combination” when

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each would not do so alone, but only when they have a mutually enforcing effect that produces

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the deprivation of a single, identifiable human need such as food, warmth, or exercise -- for

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example, a low cell temperature at night combined with a failure to issue blankets. Wilson, 501

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U.S. at 304-05(comparing Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979) (outdoor

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exercise required when prisoners otherwise confined in small cells almost 24 hours per day), with

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Clay v. Miller, 626 F.2d 345, 347 (4th Cir. 1980) (outdoor exercise not required when prisoners

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otherwise had access to dayroom 18 hours per day)). Further, temporarily unconstitutional

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conditions of confinement do not necessarily rise to the level of constitutional violations. See

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Anderson, 45 F.3d 1310, ref. Hoptowit, 682 F.2d at 1258 (abrogated on other grounds by Sandin,

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515 U.S. 472 (in evaluating challenges to conditions of confinement, length of time the prisoner
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must go without basic human needs may be considered)). Thus, Plaintiff’s factual allegations as

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to the conditions he complains of must be evaluated to determine whether they demonstrate an

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objective deprivation of a basic human need -- individually or in combination.

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Objectively, Plaintiff's allegations do not rise to the level of an extreme deprivation of a

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necessity of life. While Plaintiff would have been more comfortable if his T.V., radio, fan, and

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hot pot were not confiscated, their absence does not equate to an inadequacy of shelter, food,

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clothing, sanitation, medical care, or personal safety.

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Subjectively, if an objective deprivation is shown, a plaintiff must show that prison

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officials acted with a sufficiently culpable state of mind, that of “deliberate indifference.” Wilson,

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501 U.S. at 303; Johnson, 217 F.3d at 733. In other words, a prison official is liable for inhumane

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conditions of confinement only if “the official knows of and disregards an excessive risk to

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inmate health and safety; the official must both be aware of facts from which the inference could

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be drawn that a substantial risk of serious harm exists, and he must also draw the inference.”

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Farmer, 511 U.S. at 837. Further, the plaintiff must show that the defendant officials had actual

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knowledge of the peril to plaintiffs’ basic human needs and intentionally, deliberately refused to

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meet those needs. Johnson, 217 F.3d at 734. Since Plaintiff has not shown that he was denied a

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basic necessity, there is likewise no showing of deliberate indifference on the part of any of the

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Defendants.

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b. Double Jeopardy
Plaintiff further claims the decision in March of 2013 to place him on "C/C status" for

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rules violations for which he had already been punished violates the Double Jeopardy Clause. The

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guarantee against double jeopardy protects against a second prosecution for the same offense after

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a prior acquittal or conviction and against multiple punishments for the same offense. See Witte

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v. United States, 515 U.S. 389, 395-96 (1995); United States v. DiFrancesco, 449 U.S. 117, 129

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(1980). These protections govern prosecutions and sentences carried out in state and federal court

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based on criminal charges. This Court is aware of no authority, and Plaintiff cites none, for the

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proposition that the Double Jeopardy protections apply to administrative decisions by prison

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officials to segregate their inmates, or indeed that these protections apply in any context other
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than state or federal court proceedings. Plaintiff's double jeopardy claim is not cognizable.

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2. Due Process

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Plaintiff's allegations under his second claim solely relate to the handling of his 602

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inmate grievance by Defendants K. Ramirez, R. Tolson, R. Hall, R. Diaz, M. Hodges, and J.D.

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Lozano. (Doc. 11, pp. 5, 7.)
As stated in the prior screening order, A[a prison] grievance procedure is a procedural right

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only, it does not confer any substantive right upon the inmates.@ Azeez v. DeRobertis, 568 F.

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Supp. 8, 10 (N.D. Ill. 1982) accord Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993); see

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also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no liberty interest in processing of

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appeals because no entitlement to a specific grievance procedure); Massey v. Helman, 259 F.3d

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641, 647 (7th Cir. 2001) (existence of grievance procedure confers no liberty interest on

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prisoner); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). AHence, it does not give rise to a

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protected liberty interest requiring the procedural protections envisioned by the Fourteenth

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Amendment.@ Azeez v. DeRobertis, 568 F. Supp. at 10; Spencer v. Moore, 638 F. Supp. 315, 316

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(E.D. Mo. 1986).

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As also stated in the prior screening order, actions in reviewing a prisoner=s administrative

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appeal cannot serve as the basis for liability under a ' 1983 action. Buckley, 997 F.2d at 495.

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The argument that anyone who knows about a violation of the Constitution, and fails to cure it,

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has violated the Constitution himself is not correct. AOnly persons who cause or participate in the

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violations are responsible. Ruling against a prisoner on an administrative complaint does not

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cause or contribute to the violation.@ Greeno v. Daley, 414 F.3d 645, 656-57 (7th Cir.2005)

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accord George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007); Reed v. McBride, 178 F.3d 849,

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851-52 (7th Cir.1999); Vance v. Peters, 97 F.3d 987, 992-93 (7th Cir.1996).

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Thus, since he has neither a liberty interes, nor a substantive right in inmate appeals,

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Plaintiff fails, and is unable to state a cognizable claim against Defendants K. Ramirez, R.

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Tolson, R. Hall, R. Diaz, M. Hodges, and J.D. Lozano for the processing and/or reviewing of his

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602 inmate appeals.

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///
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3. Equal Protection
“Prisoners are protected under the Equal Protection Clause of the Fourteenth Amendment

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from invidious discrimination based on race.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974); see

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also Turner v. Safley, 482 U.S. 78, 84 (1987); Bell v. Wolfish, 441 U.S. 520, 545 (1979); Serrano

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v. Francis, 345 F.3d 1071, 1081-82 (9th Cir. 2003); Johnson v. California, 207 F.3d 650, 655

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(9th Cir. 2000) (per curiam). Racial segregation is unconstitutional within prisons “save for ‘the

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necessities of prison security and discipline.’” Cruz v. Beto, 405 U.S. 319, 321 (1972) (per

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curiam) (quoting Lee v. Washington, 390 U.S. 333, 334 (1968) (per curiam)); see Johnson v.

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California, 543 U.S. 499, 512-15 (2005) (holding that strict scrutiny is the proper standard of

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review for a prisoner’s equal protection challenge to racial classifications); Johnson v. Avery, 393

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U.S. 483, 486 (1969).

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“To state a ' 1983 claim for violation of the Equal Protection Clause a plaintiff must show

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that the defendants acted with an intent or purpose to discriminate against the plaintiff based upon

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membership in a protected class.” Thornton v. City of St. Helens, 425 F.3d 1158, 1166-67 (9th

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Cir. 2005) (citation and quotations omitted). “The first step in equal protection analysis is to

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identify the [defendants’ asserted] classification of groups.” Id. (quoting Freeman v. City of

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Santa Ana, 68 F.3d 1180, 1187 (9th Cir.1995)). The groups must be comprised of similarly

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situated persons so that the factor motivating the alleged discrimination can be identified. Id. An

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equal protection claim will not lie by “conflating all persons not injured into a preferred class

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receiving better treatment” than the plaintiff. Id. (quoting Joyce v. Mavromatis, 783 F.2d 56, 57

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(6th Cir.1986)).

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If the action in question does not involve a suspect classification, a plaintiff may establish

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an equal protection claim by showing that similarly situated individuals were intentionally treated

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differently without a rational relationship to a legitimate state purpose. Village of Willowbrook v.

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Olech, 528 U.S. 562, 564 (2000); San Antonio School District v. Rodriguez, 411 U.S. 1 (1972);

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Squaw Valley Development Co. v. Goldberg, 375 F.3d 936, 944 (9th Cir.2004); Sea River Mar.

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Fin. Holdings, Inc. v. Mineta, 309 F.3d 662, 679 (9th Cir. 2002). To state an equal protection

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claim under this theory, a plaintiff must allege that: (1) the plaintiff is a member of an
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identifiable class; (2) the plaintiff was intentionally treated differently from others similarly

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situated; and (3) there is no rational basis for the difference in treatment. Village of Willowbrook,

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528 U.S. at 564. Also, to establish a violation of the Equal Protection Clause, the prisoner must

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present evidence of discriminatory intent. See Washington v. Davis, 426 U.S. 229, 239-240

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(1976); Serrano v. Francis, 345 F.3d 1071, 1081-82 (9th Cir. 2003); Freeman v. Arpio, 125 F.3d

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732, 737 (9th Cir. 1997).

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Plaintiff does not state a cognizable Equal Protection claim. He fails to state any

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information to show he is s member of a protected class. He does not show that he was treated

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differently from others similarly situated. Nor does he show any discriminatory intent on the part

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of any of the named Defendants.
4. Supervisory Liability
It appears that Plaintiff may have named Warden R. Diaz and/or Chief of Inmate Appeals
R. Tolson as Defendants in this action because they hold supervisory positions.
Supervisory personnel are generally not liable under section 1983 for the actions of their

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employees under a theory of respondeat superior and, therefore, when a named defendant holds a

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supervisory position, the causal link between him and the claimed constitutional violation must be

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specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld,

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589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979). To state a claim for relief

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under section 1983 based on a theory of supervisory liability, Plaintiff must allege some facts that

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would support a claim that supervisory defendants either: personally participated in the alleged

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deprivation of constitutional rights; knew of the violations and failed to act to prevent them; or

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promulgated or "implemented a policy so deficient that the policy 'itself is a repudiation of

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constitutional rights' and is 'the moving force of the constitutional violation.'" Hansen v. Black,

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885 F.2d 642, 646 (9th Cir. 1989) (internal citations omitted); Taylor v. List, 880 F.2d 1040, 1045

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(9th Cir. 1989). Under section 1983, liability may not be imposed on supervisory personnel for

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the actions of their employees under a theory of respondeat superior. Iqbal, 556 U.S. at 677. "In

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a § 1983 suit or a Bivens action - where masters do not answer for the torts of their servants - the

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term 'supervisory liability' is a misnomer." Id. Knowledge and acquiescence of a subordinate's
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misconduct is insufficient to establish liability; each government official is only liable for his or

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her own misconduct. Id.
A>[B]are assertions . . . amount[ing] to nothing more than a Aformulaic recitation of the

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elements@ of a constitutional discrimination claim,= for the purposes of ruling on a motion to

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dismiss [and thus also for screening purposes], are not entitled to an assumption of truth.@ Moss,

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572 F.3d at 969 (quoting Iqbal, 556 U.S. at 1951 (quoting Twombly, 550 U.S. at 555)). ASuch

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allegations are not to be discounted because they are >unrealistic or nonsensical,= but rather

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because they do nothing more than state a legal conclusion B even if that conclusion is cast in the

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form of a factual allegation.@ Id.

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Thus, Plaintiff=s apparent intent that Warden R. Diaz and Chief of Inmate Appeals R.

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Tolson be held liable because the other Defendants are their subordinates and are under their

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supervision does not rise to the level of a cognizable claim.

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II.

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CONCLUSION
For the reasons set forth above, Plaintiff's First Amended Complaint is dismissed, with

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leave to file a second amended complaint within thirty days. This is the last time leave to

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amend will be extended to Plaintiff. If Plaintiff needs an extension of time to comply with this

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order, Plaintiff shall file a motion seeking an extension of time no later than thirty days from the

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date of service of this order.

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Plaintiff must demonstrate in any second amended complaint how the conditions

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complained of have resulted in a deprivation of Plaintiff's constitutional rights. See Ellis v.

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Cassidy, 625 F.2d 227 (9th Cir. 1980). The second amended complaint must allege in specific

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terms how each named defendant is involved. There can be no liability under section 1983 unless

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there is some affirmative link or connection between a defendant's actions and the claimed

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deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir.

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1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Plaintiff's second amended complaint should be brief. Fed. R. Civ. P. 8(a). Such a short

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and plain statement must "give the defendant fair notice of what the . . . claim is and the grounds

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upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) quoting Conley v.
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Gibson, 355 U.S. 41, 47 (1957). Although accepted as true, the "[f]actual allegations must be

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[sufficient] to raise a right to relief above the speculative level . . . ." Twombly, 550 U.S. 127, 555

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(2007) (citations omitted).

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Plaintiff is further advised that an amended complaint supercedes the original, Lacey v.

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Maricopa County, Nos. 09-15806, 09-15703, 2012 WL 3711591, at *1 n.1 (9th Cir. Aug. 29,

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2012) (en banc), and must be "complete in itself without reference to the prior or superceded

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pleading," Local Rule 220.

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The Court provides Plaintiff with opportunity to amend to cure the deficiencies identified

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by the Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff

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may not change the nature of this suit by adding new, unrelated claims in his second amended

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complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no "buckshot" complaints).

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Based on the foregoing, it is HEREBY ORDERED that:

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Plaintiff's First Amended Complaint is dismissed, with leave to amend;

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2.

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

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3.

Within 30 days from the date of service of this order, Plaintiff must file a first

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amended complaint curing the deficiencies identified by the Court in this order;

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and

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4.

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If Plaintiff fails to comply with this order, this action will be dismissed for failure
to obey a court order and for failure to state a claim.

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IT IS SO ORDERED.
Dated:

October 17, 2014

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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