Soriano v. Beard et al

Filing 6

ORDER Dismissing Complaint for Failure to State a Cognizable Claim, signed by Magistrate Judge Michael J. Seng on 9/2/14. 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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DEAN LARRY SORIANO,

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Plaintiff,

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CASE NO. 1:14-cv-01047-MJS
ORDER DISMISSING COMPLAINT FOR
FAILURE TO STATE A COGNIZALBE
CLAIM

v.
JEFFREY BEARD, et al.,

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(ECF NO. 1)

Defendants.

AMENDED COMPLAINT DUE WITHIN
THIRTY (30) DAYS

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SCREENING ORDER
I.

PROCEDURAL HISTORY

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Plaintiff Dean Larry Soriano, a state prisoner proceeding pro se, filed this civil

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rights action pursuant to 42 U.S.C. § 1983 on July 3, 2014. (ECF No. 1.) His complaint

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is now before the Court for screening.

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II.

SCREENING REQUIREMENT

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

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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has

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raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which

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relief may be granted, or that seek monetary relief from a defendant who is immune from

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such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion

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thereof, that may have been paid, the court shall dismiss the case at any time if the court

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determines that . . . the action or appeal . . . fails to state a claim upon which relief may

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be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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III.

SUMMARY OF COMPLAINT

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Plaintiff names Jeffrey Beard, Secretary of the California Department of

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Corrections and Rehabilitation and P.D. Brazelton, Warden, Pleasant Valley State Prison

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(PVSP), as Defendants and alleges essentially the following:

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On January 31, 2010, correctional officers Gonzalez and Johnson conducted a

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random search of Plaintiff‟s cell and discovered a rusted nail, identified on the cell search

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receipt as an eight inch metal shank, taped underneath his cell door. (Compl. at 4.)

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Plaintiff was taken to a holding cage and interviewed by officer Parks.

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knowing anything about the weapon. Approximately 200 inmates in Plaintiff‟s building

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had access to the underside of Plaintiff‟s door.

He denied

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Plaintiff was issued a Rules Violation Report (RVR) for weapon possession. A

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report attached to the RVR and authored by officer Parks incorrectly stated that Plaintiff

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admitted the shank was his. Plaintiff requested that the shank be tested for fingerprints

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and that officer Parks be called as a witness regarding his false statement. (Id. at 5.)

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Officer Duty was assigned as the investigative employee and interviewed officers

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Gonzalez, Johnson, and Parks.

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confirmed that all inmates had access to the underside of Plaintiff‟s door, open or closed.

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Duty‟s report also stated that officer Parks had said that Plaintiff admitted the shank was

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his.

Duty reported that Officers Gonzalez and Johnson

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On March 25, 2011, Plaintiff appeared for a hearing on the weapons charge.

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Plaintiff renewed his requests for a fingerprint test and that officer Parks be called as a

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witness. (Id. at 6.) Hearing officer Perry denied Plaintiff‟s requests and found him guilty.

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(Id. at 6, 7.)

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Fourteenth Amendment. (Id. at 4.)

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IV.

Plaintiff asserts that he was denied his due process rights under the

ANALYSIS

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A.

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Section 1983 “provides a cause of action for the „deprivation of any rights,

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privileges, or immunities secured by the Constitution and laws‟ of the United States.”

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Wilder v. Virginia Hosp. Ass‟n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983).

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Section 1983 is not itself a source of substantive rights, but merely provides a method for

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vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94

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Section 1983

(1989).

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To state a claim under Section 1983, a plaintiff must allege two essential

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elements: (1) that a right secured by the Constitution or laws of the United States was

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violated and (2) that the alleged violation was committed by a person acting under the

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color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda

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Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).

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

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the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations

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are not required, but “[t]hreadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct.

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1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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Plaintiff must set forth “sufficient factual matter, accepted as true, to „state a claim that is

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plausible on its face.‟” Id. Facial plausibility demands more than the mere possibility

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that a defendant committed misconduct and, while factual allegations are accepted as

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true, legal conclusions are not. Id. at 1949-50.

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B.

Section 1983 Linkage Requirement

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Under § 1983, Plaintiff must demonstrate that each defendant personally

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participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th

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Cir. 2002). This requires the presentation of factual allegations sufficient to state a
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plausible claim for relief. Iqbal, 129 S.Ct. at 1949-50; Moss v. U.S. Secret Service, 572

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F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting

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this plausibility standard. Id.

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The statute requires that there be an actual connection or link between the

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

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plaintiff.

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Government officials may not be held liable for the actions of their subordinates under a

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theory of respondeat superior. Iqbal, 129 S.Ct. at 1948. Since a government official

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cannot be held liable under a theory of vicarious liability in § 1983 actions, Plaintiff must

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plead sufficient facts showing that the official has violated the Constitution through his

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own individual actions. Id. at 1948. In other words, to state a claim for relief under §

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1983, Plaintiff must link each named defendant with some affirmative act or omission

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that demonstrates a violation of Plaintiff's federal rights.

See Monell v. Department of Social Services, 436 U.S. 658 (1978).

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Secretary Beard and Warden Brazelton are the only named Defendants, but

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neither is mentioned in Plaintiff‟s factual allegations and no wrongdoing is attributed to

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them. The Complaint describes the alleged violation but not how either Defendant might

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be responsible for it.

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without setting forth specific facts as to the conduct that proximately caused a violation of

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his rights. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). The mere fact that a

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defendant may have supervised the individuals responsible for a violation is not enough.

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The Defendants may only be held liable in a supervisory capacity if they “participated in

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or directed the violations, or knew of the violations and failed to act to prevent them.”

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Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

Plaintiff cannot state a cognizable claim against a defendant

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Plaintiff has failed to link any of the Defendants to the alleged violation of his

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rights and therefore has failed to state a claim. The Court will provide an opportunity to

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amend. To state a cognizable claim, Plaintiff must demonstrate that each Defendant

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personally took some action that violated Plaintiff‟s constitutional rights. The following

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section includes legal standards that may be applicable to the claim Plaintiff appears to

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want to assert.

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C.

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“Under the Fourteenth Amendment's Due Process Clause, a prisoner is entitled to

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certain due process protections when he is charged with a disciplinary violation.”

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Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003) (citing Wolff v. McDonnell, 418

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U.S. 539, 564-71 (1974)). With respect to prison disciplinary proceedings, the minimum

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procedural requirements that must be met are: (1) written notice of the charges; (2) at

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least 24 hours between the time the prisoner receives written notice and the time of the

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hearing, so that the prisoner may prepare his defense; (3) a written statement by the fact

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finders of the evidence they rely on and reasons for taking disciplinary action; (4) the

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right of the prisoner to call witnesses in his defense, when permitting him to do so would

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not be unduly hazardous to institutional safety or correctional goals; and (5) legal

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assistance to the prisoner where the prisoner is illiterate or the issues presented are

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legally complex.

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requirements are met, due process has been satisfied. Walker v. Sumner, 14 F.3d

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1415, 1420 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S.

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472 (1995).

Due Process

Wolff, 418 U.S. at 563-71.

As long as the five minimum Wolff

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In addition, “some evidence” must support the decision of the hearing officer,

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Superintendent v. Hill, 472 U.S. 445, 455 (1985), and the evidence must have some

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indicia of reliability, Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987). The “some

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evidence” standard is not particularly stringent and the relevant inquiry is whether “there

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is any evidence in the record that could support the conclusion reached . . . .” Hill, 472

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U.S. at 455-56 (emphasis added).

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V.

CONCLUSION AND ORDER

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Plaintiff‟s Complaint does not state a claim for relief. The Court will grant Plaintiff

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an opportunity to file an amended complaint. Noll v. Carlson, 809 F.2d 1446, 1448-49

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(9th Cir. 1987). If Plaintiff opts to amend, he must demonstrate that the alleged acts
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resulted in a deprivation of his constitutional rights. Iqbal, 129 S.Ct. at 1948-49. Plaintiff

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must set forth “sufficient factual matter . . . to „state a claim that is plausible on its face.‟”

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Id. at 1949 (quoting Twombly, 550 U.S. at 555 (2007)). Plaintiff must also demonstrate

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that each named Defendant personally participated in a deprivation of his rights. Jones

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v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

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Plaintiff should note that although he has been given the opportunity to amend, it

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is not for the purposes of adding new claims. George v. Smith, 507 F.3d 605, 607 (7th

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Cir. 2007). Plaintiff should carefully read this Screening Order and focus his efforts on

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curing the deficiencies set forth above.

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Finally, Plaintiff is advised that Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. As a general

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rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375

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F.2d 55, 57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint

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no longer serves any function in the case. Therefore, in an amended complaint, as in an

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original complaint, each claim and the involvement of each defendant must be

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sufficiently alleged. The amended complaint should be clearly and boldly titled “First

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Amended Complaint,” refer to the appropriate case number, and be an original signed

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under penalty of perjury. Plaintiff's amended complaint should be brief. Fed. R. Civ. P.

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

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

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omitted).

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Accordingly, it is HEREBY ORDERED that:

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

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2.

Plaintiff‟s Complaint is dismissed for failure to state a claim upon which

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relief may be granted;
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Plaintiff shall file an amended complaint within thirty (30) days; and

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4.

If Plaintiff fails to file an amended complaint in compliance with this order,

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the Court will recommend that this action be dismissed, with prejudice, for failure to state

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a claim and failure to comply with a court order.

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IT IS SO ORDERED.
Dated:

September 2, 2014

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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