Hernandez v. Pedreio, et al.

Filing 10

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND for Failure to State a Cognizable Claim 1 , signed by Magistrate Judge Sheila K. Oberto on 1/27/17: 21-Day Deadline. (Attachments: # 1 Amended Complaint - blank form)(Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:16-cv-00027-DAD-SKO (PC)

ANGEL HERNANDEZ,

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ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND FOR FAILURE
TO STATE A COGNIZABLE CLAIM

Plaintiff,

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v.

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PEDERIO, et al.,

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(Doc. 1)
TWENTY-ONE (21) DAY DEADLINE

Defendants.

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INTRODUCTION

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A.

Background

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Plaintiff, Angel Hernandez, is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action pursuant to 42 U.S.C. ' 1983. As discussed below, Plaintiff fails to state

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any cognizable claims upon which relief may be granted. Thus, the Complaint is DISMISSED

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with leave to file a first amended complaint.

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B.

Screening Requirement and Standard

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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 an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).

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The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

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legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or

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that seek 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

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paid, the court shall dismiss the case at any time if the court determines that . . . the action or
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appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
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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Violations of Rule 8, at both ends of the spectrum, warrant dismissal. A violation occurs

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when a pleading says too little -- the baseline threshold of factual and legal allegations required

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was the central issue in the Iqbal line of cases. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678,

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129 S.Ct. 1937 (2009). The Rule is also violated, though, when a pleading says too much.

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Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir.2011) (“[W]e

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have never held -- and we know of no authority supporting the proposition -- that a pleading may

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be of unlimited length and opacity. Our cases instruct otherwise.”) (citing cases); see also

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McHenry v. Renne, 84 F.3d 1172, 1179-80 (9th Cir.1996) (affirming a dismissal under Rule 8,

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and recognizing that “[p]rolix, confusing complaints such as the ones plaintiffs filed in this case

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impose unfair burdens on litigants and judges”).

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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,
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.
Further, “repeated and knowing violations of Federal Rule of Civil Procedure 8(a)’s ‘short

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and plain statement’ requirement are strikes as ‘fail[ures] to state a claim,’ 28 U.S.C. § 1915(g),

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when the opportunity to correct the pleadings has been afforded and there has been no

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modification within a reasonable time.” Knapp v. Hogan, 738 F.3d 1106, 1108-09 (9th Cir.

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2013).

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If he chooses to file a first amended complaint, Plaintiff should make it as concise as

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possible. He should simply state which of his constitutional rights he feels were violated by each

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Defendant and its factual basis. Plaintiff need not and should not cite legal authority for his

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claims in a first amended complaint. His factual allegations are accepted as true and need not be

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bolstered by legal authority at the pleading stage. If Plaintiff files a first amended complaint, his

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factual allegations will be screened under the legal standards and authorities stated in this order.

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2.

Federal Rule of Civil Procedure 18(a) & 20(a)(2)

Federal Rule of Civil Procedure 18(a) allows a party asserting a claim to relief as an

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original claim, counterclaim, cross-claim, or third-party claim to join, either as independent or as

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alternate claims, as many claims as the party has against an opposing party. However, Plaintiff

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may not bring unrelated claims against unrelated parties in a single action. Fed. R. Civ. P. 18(a),

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20(a)(2); Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 507 F.3d 605,

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607 (7th Cir. 2007). Plaintiff may bring a claim against multiple defendants so long as (1) the
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claim(s) arise out of the same transaction or occurrence, or series of transactions and occurrences,

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and (2) there are commons questions of law or fact. Fed. R. Civ. P. 20(a)(2); Coughlin v. Rogers,

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130 F.3d 1348, 1351 (9th Cir. 1997); Desert Empire Bank v. Insurance Co. of North America,

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623 F.3d 1371, 1375 (9th Cir. 1980). Only if the defendants are properly joined under Rule 20(a)

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will the Court review the extraneous claims to determine if they may be joined under Rule 18(a),

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which permits the joinder of multiple claims against the same party.

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The Court must be able to discern a relationship between Plaintiff’s claims or there must

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be a similarity of parties. The fact that all of Plaintiff’s allegations are based on the same type of

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constitutional violation (i.e. deliberate indifference by different actors on different dates, under

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different factual events) does not necessarily make claims related for purposes of Rule 18(a). All

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claims that do not comply with Rules 18(a) and 20(a)(2) are subject to dismissal. Plaintiff is

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cautioned that if he fails to elect which category of claims to pursue and his amended complaint

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sets forth improperly joined claims, the Court will determine which claims may proceed and

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which claims will be dismissed. Visendi v. Bank of America, N.A., 733 F3d 863, 870-71 (9th Cir.

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2013). Whether any claims will be subject to severance by future order will depend on the

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viability of the claims pled in the amended complaint.

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3.

Linkage and Causation

Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or

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other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d

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1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006);

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Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). “Section 1983 is not itself a source of

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substantive rights, but merely provides a method for vindicating federal rights elsewhere

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conferred.” Crowley v. Nevada ex rel. Nevada Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012)

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(citing Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865 (1989)) (internal quotation

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marks omitted). To state a claim, Plaintiff must allege facts demonstrating the existence of a link,

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or causal connection, between each defendant’s actions or omissions and a violation of his federal

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rights. Lemire v. California Dep’t of Corr. and Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013);

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Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011).
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Plaintiff’s allegations must demonstrate that each defendant personally participated in the

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deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the

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presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S.

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at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility

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of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572

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F.3d at 969. However, prisoners proceeding pro se in civil rights actions are still entitled to have

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their pleadings liberally construed and to have any doubt resolved in their favor. Hebbe, 627 F.3d

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at 342.
4.

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Use of Exhibits

Plaintiff attached a number of exhibit pages to the Complaint, but fails to refer to them in

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his allegations. The Court is not a repository for the parties’ evidence. Originals, or copies of

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evidence (i.e., prison or medical records, witness affidavits, etc.) need not be submitted until the

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course of litigation brings the evidence into question (for example, on a motion for summary

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judgment, at trial, or when requested by the Court). If Plaintiff attaches exhibits to his amended

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complaint, each exhibit must be specifically referenced. Fed. R. Civ. Pro. 10(c). For example,

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Plaintiff must state Asee Exhibit A@ to direct the Court to the specific exhibit Plaintiff is

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referencing. Further, if the exhibit consists of more than one page, Plaintiff must reference the

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specific page of the exhibit (i.e. “See Exhibit A, page 3”).
DISCUSSION

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Plaintiff’s Allegations

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A.

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Plaintiff is currently incarcerated at California State Prison (CSP-Cor) in Corcoran,

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California, but complains of events that occurred while he was held as a pretrial detainee at the

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Kings County Jail (“KCJ”) in Hanford, California. Plaintiff names KCJ Commander, Kimberly

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Pedreiro; Assistant Sheriff, Robert Jack Thayer; Sergeant S. Henderson; the Kings County Board

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of Supervisors; and Kings County Superior Court Judge Donna Tarter as Defendants in this

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action.

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Plaintiff alleges that, on April 30, 2014, upon returning from a court appearance, Sgt.
Henderson placed Plaintiff in Administrative Segregation (“Ad-Seg”) at KCJ. Plaintiff asked
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why and Sgt. Henderson told him it was done at CMDR Pedreio’s direction. Plaintiff was held in

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KCJ’s Ad-Seg for over twenty months, despite filing numerous grievances protesting that he was

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placed in Ad-Seg without notice and a hearing.

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Plaintiff alleges that, since he was placed in Ad-Seg without notice and a hearing, his

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rights to due process, free speech, freedom of association, and freedom from cruel and unusual

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punishment were violated.

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Plaintiff has not stated any cognizable claims, but the Court provides the pleading

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standards and legal standards for the claims Plaintiff delineated and opportunity to file a first

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amended complaint.

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B.

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Legal Standards
Due Process

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 itself or

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from state law. Id. The Due Process Clause does not confer on inmates a liberty interest in

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avoiding more adverse conditions of confinement, and under state law, the existence of a liberty

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interest created by prison regulations is determined by focusing on the nature of the condition of

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confinement at issue. Id. at 221-23 (citing Sandin v. Conner, 515 U.S. 472, 481-84, 115 S.Ct.

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2293 (1995)) (quotation marks omitted). Liberty interests created by prison regulations are

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generally limited to freedom from restraint which imposes atypical and significant hardship on

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the inmate in relation to the ordinary incidents of prison life. Wilkinson, 545 U.S. at 221 (citing

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Sandin, 515 U.S. at 484) (quotation marks omitted); Myron v. Terhune, 476 F.3d 716, 718 (9th

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Cir. 2007).

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“It is plain, that the transfer of an inmate to less amenable and more restrictive quarters for

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nonpunitive reasons is well within the terms of confinement ordinarily contemplated by a prison

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sentence. Accordingly, administrative segregation is the sort of confinement that inmates should

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reasonably anticipate receiving at some point in their incarceration.” Toussaint v. McCarthy, 801
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F.2d 1080, 1091-92 (9th Cir.1986). With respect to placement in administrative segregation, due

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process requires only that prison officials hold an informal nonadversary hearing within a

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reasonable time after the prisoner is segregated, inform the prisoner of the charges against him or

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the reasons for considering segregation, and allow the prisoner to present his views. Id., 801 F.2d

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at 1100-01 (quotation marks omitted), abrogated in part on other grounds, Sandin v. Conner, 515

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U.S. 472, 115 S.Ct. 2293 (1995); accord Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir. 2003).

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Prisoners are not entitled to detailed written notice of charges, representation by counsel or

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counsel substitute, an opportunity to present witnesses, or a written decision describing the

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reasons for placing the prisoner in administrative segregation. Toussaint, 801 F.2d at 1100-01

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(quotation marks omitted). Further, due process does not require disclosure of the identity of any

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person providing information leading to the placement of a prisoner in administrative segregation.

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Id. (quotation marks omitted).

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However, prisoners may be housed in Administrative Segregation to protect them from

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other inmates, to protect other inmates from the segregated prisoner, or as here, pending

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investigation of disciplinary charges, transfer, or re-classification. See Hewitt v. Helms, 459 U.S.

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460, 468 (1983) B overruled in part on other grounds by Sandin (finding no liberty interest in

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freedom from state action taken within the sentence implied).

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Here, Plaintiff’s exhibits show that he was placed in Ad-Seg pending investigation into

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criminal charges (see Doc. 1, pp. 17-18) and his allegations acknowledge that he was criminally

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charged in Kings County Superior Court (case no. 14CM1997) for conspiracy surrounding an

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attempted murder of correctional staff (see id., at p. 5). Under these circumstances, Plaintiff had

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no liberty interest in remaining in the general population and thus cannot state a cognizable claim.

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Further, A[a]n inmate does not retain rights inconsistent with proper incarceration,@ and

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Afreedom of association is among the rights least compatible with incarceration.@ Overton v.

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Bazzetta, 539 U.S. 126, 131 (2003). Accordingly, A[s]ome curtailment of that freedom must be

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expected in the prison context.@ Id. Since Plaintiff does not have a cognizable claim based on his

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placement in Ad-Seg, a concomitant curtailment of his right to speak and associate with inmates

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in the general population while he is was confined in Ad-Seg is also not cognizable.
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3.

Younger Abstention

Plaintiff’s claims pertaining to his Ad-Seg placement are likewise not cognizable under

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§ 1983 if the release of Plaintiff's legal materials to prosecutors resulted in criminal charges, for

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which proceedings are ongoing. See Younger v. Harris, 401 U.S. 37, 43-54, 91 S.Ct. 746 (1971)

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(reaffirming the long-standing principle that federal courts sitting in equity cannot, absent

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exceptional circumstances, enjoin pending state criminal proceedings). “Younger abstention is a

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jurisprudential doctrine rooted in overlapping principles of equity, comity, and federalism.” San

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Jose Silicon Valley Chamber of Commerce Political Action Committee v. City of San Jose, 546

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F.3d 1087, 1092 (9th Cir. 2008) citing Steffel v. Thompson, 415 U.S. 452, 460-73, 94 S.Ct. 1209

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(1974) (explaining the history and purposes of the doctrine); Younger, 401 U.S. at 43-49

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(discussing the jurisprudential background of abstention); Gilbertson v. Albright, 381 F.3d 965,

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970–75 (9th Cir.2004) (en banc) (tracing the Supreme Court's application of the doctrine).

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Federal courts “must abstain under Younger if four requirements are met: (1) a state-

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initiated proceeding is ongoing; (2) the proceeding implicates important state interests; (3) the

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federal plaintiff is not barred from litigating federal constitutional issues in the state proceeding;

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and (4) the federal court action would enjoin the proceeding or have the practical effect of doing

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so, i.e., would interfere with the state proceeding in a way that Younger disapproves.” Id. citing

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Gilbertson, 381 F.3d at 978; AmerisourceBergen Corp. v. Roden (“ABC ”), 495 F.3d 1143, 1149

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(9th Cir.2007); see also Green v. City of Tucson, 255 F.3d 1086, 1093 (9th Cir.2001) (en banc)

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(“[I]n addressing Younger abstention issues, district courts must exercise jurisdiction except when

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specific legal standards are met, and may not exercise jurisdiction when those standards are met;

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there is no discretion vested in the district courts to do otherwise.”), overruled in other part by

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Gilbertson, 381 F.3d 965. “An exception to that general rule exists if there is a ‘showing of bad

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faith, harassment, or some other extraordinary circumstance that would make abstention

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inappropriate.’ ” Id., quoting Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457

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U.S. 423, 435, 102 S.Ct. 2515 (1982).

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The criminal action against Plaintiff in Kern County Superior Court (case no.

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14CM1997), for which Plaintiff was placed in Ad-Seg is ongoing.1 There are few if any more

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important state interests than enforcing its criminal laws. Plaintiff states no allegations to show

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that he would be barred from litigating federal constitutional issues in the state proceeding and

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this Court finds none. A finding in Plaintiff’s favor in this action would have the practical effect

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of undermining the State’s criminal action against Plaintiff since it would necessarily hinge on the

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propriety of the investigation into the criminal charges against Plaintiff -- which Younger

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disapproves. Plaintiff fails to state any allegations to suggest, let alone show, that bad faith,

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harassment, or other extraordinary circumstance exists to make abstention inappropriate. Thus,

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this Court must abstain from deciding whether Plaintiff’s claims regarding his placement in Ad-

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Seg under Younger.
4.

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Cruel & Unusual Punishment

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, 714 F.3d 1155, 1160 (9th Cir. 2013) (citing Gibson v.

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County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002).
The deliberate indifference standard involves both an objective and a subjective prong.

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

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

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health or 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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Judicial notice is taken of the Kings County Superior Court record in case number 14CM1997. Fed.Rules
Evid.Rule 201, 28 U.S.C.A.; Harris v. County of Orange, 682 F.3d 1126, 1131-32 (2012).

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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). Although the Constitution “ ‘does not mandate comfortable prisons,’ ”

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Wilson v. Seiter, 501 U.S. 294, 298 (1991) (quoting Rhodes, 452 U.S. at 349), “inmates are

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entitled to reasonably adequate sanitation, personal hygiene, and laundry privileges, particularly

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

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Some conditions of confinement may establish an Eighth Amendment violation “in

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combination” when each would not do so alone, but only when they have a mutually enforcing

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effect that produces the deprivation of a single, identifiable human need such as food, warmth, or

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exercise -- for example, a low cell temperature at night combined with a failure to issue blankets.

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Wilson, 501 U.S. at 304-05(comparing Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979)

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(outdoor exercise required when prisoners otherwise confined in small cells almost 24 hours per

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

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prisoners had regular access to dayroom)). To say that some prison conditions may interact in

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this fashion is a far cry from saying that all prison conditions are a seamless web for Eighth

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Amendment purposes. Id. Amorphous “overall conditions” cannot rise to the level of cruel and

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unusual punishment when no specific deprivation of a single human need exists. Id. Further,

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temporarily unconstitutional conditions of confinement do not necessarily rise to the level of

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constitutional violations. See Anderson, 45 F.3d 1310, ref. Hoptowit, 682 F.2d at 1258

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(abrogated on other grounds by Sandin, 515 U.S. 472 (in evaluating challenges to conditions of

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confinement, length of time the prisoner must go without basic human needs may be

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considered)). Thus, Plaintiff’s factual allegations as to the conditions to which he was subjected

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during his confinement on management cell/ASU must be evaluated to determine whether they

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demonstrate a deprivation of a basic human need individually or in combination.

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Plaintiff alleges that he was in Ad-Seg for “20 plus months” and that while in Ad-Seg, he

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was confined to his cell 23 hours a day; the one hour out of his cell was for dayroom, outside

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yard, phone call, shower, and cell cleaning. (Doc. 1, p. 6.) Plaintiff alleges this is insufficient

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and that every day he should have 30 minutes of fresh air, 10 minutes to shower, 20 minutes for a

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phone call, 10-15 minutes to clean his cell, and 30 minutes to watch television. (Id.) Plaintiff
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alleges that he is not allowed to program with other inmates, any conversation is like a yelling

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contest between Plaintiff, the T.V., and other inmates. (Id.) Plaintiff complains that his cell has

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no window and that the exercise yard is a concrete yard a little bigger than a cell that is covered

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by a black tarp such that he does not receive any direct sunlight and they are “not allowed fresh

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air during rainy days.” (Id.) Plaintiff alleges that he is held with inmates who have mental

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problems causing them to throw feces, walk around covered in feces, put their urine on the

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phones and tables, dig through garbage cans, defecate in the showers, and scream at all time of

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the day. (Id.) Plaintiff alleges that he has been subjected to hot and cold temperatures in his cell,

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including cold showers and that his “medical needs have been an issue.” (Id.) Plaintiff also

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alleges that in Ad-Seg, he cannot go to church, cannot get a job, and cannot attend programs,

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school, drug & alcohol classes, his jumpsuit is a different color, he eats in his cell, and all of his

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visits are non-contact via a T.V. screen. (Id.)
These living conditions are certainly not desirable. However, they do not show

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deprivation of a basic human necessity, let alone that any of the named defendants were

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subjectively aware of any such deprivation and failed to take corrective action. Plaintiff thus fails

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to state a cognizable claim under the Eighth Amendment.
5.

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Immunity
a.

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Judicial Immunity

Judge Tarter is entitled to absolute immunity from damages for judicial acts, absent very

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limited exceptions not presented here. Cleavinger v. Saxner, 474 U.S. 193, 199-200, 106 S.Ct.

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496 (1985); Stump v. Sparkman, 435 U.S. 349, 355-56, 98 S.Ct. 1099 (1978); Crowe v. County of

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San Diego, 608 F.3d 406, 430 (9th Cir. 2010); Simmons v. Sacramento County Superior Court,

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318 F.3d 1156, 1161 (9th Cir. 2003); Schucker v. Rockwood, 846 F.2d 1202, 1204 (9th Cir.

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1988).

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b.

Quasi-judicial Immunity

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The Supreme Court has extended such absolute judicial immunity to other public officials

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who perform activities that are “functionally comparable” to those of judges. Butz v. Economou,

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438 U.S. 478, 513, 98 S.Ct. 2894 (1978); see also Sellars v. Procunier, 641 F.2d 1295, 1303 (9th
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Cir.1981) (“If an official’s role is functionally equivalent to that of a judge, the official will be

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granted equivalent immunity.”). Such activities are sometimes referred to as “quasi-judicial.”

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See, e.g., Imbler v. Pachtman, 424 U.S. 409, 420, 96 S.Ct. 984 (1976). “Absolute immunity

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flows not from rank or title . . . but from the nature of the responsibilities of the individual

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official.” Cleavinger v. Saxner, 474 U.S. 193, 201, 106 S.Ct. 496 (1985).

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The Court has outlined a list of factors to consider in determining whether an official's

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functions are quasi-judicial in nature: (1) the need to insulate the official from harassment or

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intimidation; (2) the presence of procedural safeguards to reduce unconstitutional conduct; (3)

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insulation from political influence; (4) the importance of precedent in the official's decision; (5)

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the adversary nature of the process; and (6) whether error may be corrected on appeal. Id. at 202,

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106 S.Ct. 496 (citing Butz, 438 U.S. at 512, 98 S.Ct. 2894). This list of factors is non-exhaustive,

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however, and an official need not satisfy every factor to be entitled to absolute quasi-judicial

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immunity. See Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 923 (9th Cir.2004) (noting that

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the Butz factors are “nonexclusive”).

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The Kings County Board of Supervisors is entitled to quasi-judicial immunity for their

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ruling on the claim Plaintiff filed under the California Tort Claims Act. There is a great need to

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protect public official from harassment or intimidation; unconstitutional conduct and error are

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subject to review via the courts; and, though their decisions do not necessarily equate to

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precedent, their decision is the beginning step in an adversarial process between the municipal

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entity they represent and the injured party. Thus, Plaintiff is unable to state a cognizable claim

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against the Kings County Board of Supervisors.

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6.

Inmate Grievances

Plaintiff appears to grieve the processing and reviewing of his grievances pertaining to his

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placement in Ad-Seg at KCJ. However, he is not entitled to a specific grievance procedure.

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

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because no entitlement to a specific grievance procedure), citing Mann v. Adams, 855 F.2d 639,

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640 (9th Cir. 1988). A[A prison] grievance procedure is a procedural right only, it does not confer

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any substantive right upon the inmates.@ Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982)
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accord Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993); see also Massey v. Helman, 259

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F.3d 641, 647 (7th Cir. 2001) (existence of grievance procedure confers no liberty interest on

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prisoner). AHence, it does not give rise to a protected liberty interest requiring the procedural

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protections envisioned by the Fourteenth Amendment.@ Azeez v. DeRobertis, 568 F. Supp. at 10;

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Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986).

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Actions in reviewing prisoner=s administrative appeal generally cannot serve as the basis

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for liability under a ' 1983 action. Buckley, 997 F.2d at 495. The argument that anyone who

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knows about a violation of the Constitution, and fails to cure it, has violated the Constitution

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himself is not correct. AOnly persons who cause or participate in the violations are responsible.

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Ruling against a prisoner on an administrative complaint does not cause or contribute to the

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violation.@ Greeno v. Daley, 414 F.3d 645, 656-57 (7th Cir.2005) accord George v. Smith, 507

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F.3d 605, 609-10 (7th Cir. 2007); Reed v. McBride, 178 F.3d 849, 851-52 (7th Cir.1999); Vance

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v. Peters, 97 F.3d 987, 992-93 (7th Cir.1996).

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Plaintiff may "state a claim against a supervisor for deliberate indifference based upon the

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supervisor's knowledge of and acquiescence in unconstitutional conduct by his or her

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subordinates." Starr v. Baca, 652 F.3d 1202, 1207 (2011). However, for the reasons previously

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discussed, Plaintiff fails to state a claim showing unconstitutional conduct occurred by

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subordinates for their supervisor’s knowledge and acquiescence to be actionable.

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7.

Injunctive Relief

Among other forms of relief, Plaintiff requests to be allowed more time out of his cell. As

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a threshold matter, Plaintiff must establish that he has standing to seek preliminary injunctive

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relief. Summers v. Earth Island Institute, 555 U.S. 488, 493-94, 129 S.Ct. 1142, 1149 (2009);

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Mayfield v. United States, 599 F.3d 964, 969 (9th Cir. 2010). Plaintiff Amust show that he is

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under threat of suffering an >injury in fact= that is concrete and particularized; the threat must be

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actual and imminent, not conjectural or hypothetical; it must be fairly traceable to challenged

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conduct of the defendant; and it must be likely that a favorable judicial decision will prevent or

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redress the injury.@ Summers, 555 U.S. at 493 (citation and quotation marks omitted); Mayfield,

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599 F.3d at 969.
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The claims which Plaintiff alleges in this action arise from events which occurred at KCJ.

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Plaintiff is currently housed at CSP-Cor. Accordingly, Plaintiff lacks standing to seek relief

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directed at remedying his current conditions of confinement at KCJ. Further his requests for

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injunctive relief to remedy his conditions of confinement at KCJ were rendered moot upon his

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transfer to CSP-Cor. See Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995); Johnson v. Moore,

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948 F.2d 517, 519 (9th Cir. 1991). Thus, Plaintiff=s request for preliminary relief is dismissed.
ORDER

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For the reasons set forth above, Plaintiff's Complaint is dismissed with leave to file a first

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amended complaint within twenty-one (21) days. Alternatively, if Plaintiff no longer desires to

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pursue this action, or realizes that he cannot state a cognizable claim, he may file a voluntary

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dismissal in that same time. If Plaintiff chooses to file a first amended complaint, it shall not

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exceed twenty-five (25) pages, exclusive of exhibits. If Plaintiff needs an extension of time to

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comply with this order, Plaintiff shall file a motion seeking an extension of time no later than

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twenty-one (21) days from the date of service of this order.

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Plaintiff must demonstrate in any first amended complaint how the conditions complained

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of have resulted in a deprivation of Plaintiff's constitutional rights. See Ellis v. Cassidy, 625 F.2d

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227 (9th Cir. 1980). The first amended complaint must allege in specific terms how each named

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defendant is involved. There can be no liability under section 1983 unless there is some

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affirmative link or connection between a defendant's actions and the claimed deprivation. Rizzo

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v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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

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

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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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//
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Plaintiff is further reminded 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.
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 first amended

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complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no "buckshot" complaints).
Based on the foregoing, it is HEREBY ORDERED that:

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1.

Plaintiff's 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 twenty-one (21) days from the date of service of this order, Plaintiff must

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file a first amended complaint curing the deficiencies identified by the Court in

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this order, or a notice of voluntary dismissal; and
4.

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If Plaintiff fails to comply with this order, the Court will recommend this

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action be dismissed for failure to obey a court order and for failure to state a

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cognizable claim.

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IT IS SO ORDERED.
Dated:

January 27, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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