Rushdan v. Gear et al

Filing 10

SCREENING ORDER DISMISSING Complaint WITH LEAVE TO AMEND, signed by Magistrate Judge Barbara A. McAuliffe on 05/26/2017. First Amended Complaint due (30-Day Deadline) (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SALADIN RUSHDAN,

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Plaintiff,
v.
R. GEAR, et al.,

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Defendants.

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1:16-cv-001017-BAM (PC)
SCREENING ORDER DISMISSING
COMPLAINT WITH LEAVE TO AMEND
THIRTY-DAY DEADLINE
(Doc. 1)

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Plaintiff Saladin Rushdan, aka Robert Woods, (“Plaintiff”) is a state prisoner proceeding

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pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s

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complaint, filed on July 5, 2016, is currently before the Court for screening. (Doc. 1). Plaintiff

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filed a consent to Magistrate Judge jurisdiction. (Doc. 9.)

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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 and/or against an officer or employee of a governmental entity. 28 U.S.C. §

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1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or

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malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary

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

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U.S.C. § 1915(e)(2)(B)(ii).

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

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pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,

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1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65

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(2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge

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unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)

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(internal quotation marks and citation omitted).

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To survive screening, Plaintiff’s claims must be facially plausible, which requires

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sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable

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for the misconduct alleged. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted);

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Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility

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that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short

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of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks

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omitted); Moss, 572 F.3d at 969.

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Summary of Plaintiff’s Allegations

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Plaintiff is currently housed at California State Prison, Los Angeles County at Lancaster.

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The events in the complaint are alleged to have occurred while Plaintiff was housed in Corcoran

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State Prison. Plaintiff names the following defendants: (1) R. Gear; (2) D.M. Singh; (3) F.

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Vasquez; (4) M.V. Sexton; and (5) M. Voong. (Doc. 1.) Plaintiff sues the individuals in both

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their individual and official capacities.

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Plaintiff alleges: Plaintiff has been for decades diagnosed and treated for Keloids and

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complications. Plaintiff filed multiple civil rights lawsuits to get medical care, many of which

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ended up settling with provision of medical care. There was a violation of the settlement and

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Plaintiff filed another lawsuit which also settled. He was advised in one of the lawsuits to file a

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state court suit against the Director of Corrections. Plaintiff filed a state court action and

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submitted his in forma pauperis form for approval to the Prison Trust Account Office at

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Corcoran. The Trust Office refused to process his informa pauperis form because plaintiff has
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listed his real and legal name and listing his prison commitment name as an a.k.a. Because he

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could get his form processed, the state court referred to process his lawsuit and rejected it.

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Defendant Gear is the Trust Office Accounting Officer and is responsible for prisoner accounts.

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Defendant Gear refused to process the form which caused Plaintiff to lose the state court lawsuit

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by default. Plaintiff filed a 602 appeal grievance. Defendant Singh is a business manager and

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agreed and concurred with Gear’s discriminatory action on First Level Appeal and failed to assist

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plaintiff’s access to court. Defendant Vasquez is Chief Deputy Warden and reviewed the appeal

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at the Second Level and concurred with the first level. Defendant Sexton is the Associate

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Warden and upheld the Amended Second Level Response. Defendant Voong is the Chief

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Officer of Appeals who refuses to answer Plaintiff’s 602 grievance on the Third Level reviews.

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The 602 appeal has been returned to Corcoran to the Second Level three times.

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Plaintiff alleges interference with court access. Since Defendant Gear refused to process

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his in forma pauperis form, his state court action was rejected. Plaintiff also alleges retaliation

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stating he was transferred to Los Angeles Prison in March 2016. Plaintiff also claims Religious

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Discrimination. Plaintiff alleges that he changed his name in 1983 according to American Law,

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from “Woods” to his real name of Saladin Rushdan. Plaintiff has filed numerous lawsuits under

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his real name and mail has been sent and received under his real name. Plaintiff alleges he used

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proper procedure and that to prevent Plaintiff from using his real name is discrimination.

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As relief, Plaintiff seeks compensatory damages of $250,000 against each defendant and
punitive damages and to terminate all prison officials involved. (Doc. 1).

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Discussion

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1. Supervisor Liability

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In general, Plaintiff may not hold a defendant liable solely based upon their supervisory

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positions. Liability may not be imposed on supervisory personnel for the actions or omissions of

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their subordinates under the theory of respondeat superior. Iqbal, 556 U.S. at 676–77; Simmons

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v. Navajo County, Ariz., 609 F.3d 1011, 1020–21 (9th Cir. 2010); Ewing v. City of Stockton, 588

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F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

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Supervisors may be held liable only if they “participated in or directed the violations, or knew of
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the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.

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1989); accord Starr v. Baca, 652 F.3d 1202, 1205–06 (9th Cir. 2011); Corales v. Bennett, 567

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F.3d 554, 570 (9th Cir. 2009).

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Plaintiff names various individuals as Defendants who hold supervisory level positions.

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However, Plaintiff is advised that a constitutional violation cannot be premised solely on the

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theory of respondeat superior, and Plaintiff must allege that the supervisory Defendants

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participated in or directed conduct associated with his claims. As explained below, liability

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under §1983 cannot be premised upon processing appeals.

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2. Access to Court

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Inmates have a fundamental constitutional right of access to the courts. Lewis v. Casey,

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518 U.S. 343, 346, 116 S.Ct. 2174 (1996); Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir.

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2011); Phillips v. Hust, 588 F.3d 652, 655 (9th Cir. 2009). To state a viable claim for relief,

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Plaintiff must show that he suffered an actual injury, which requires “actual prejudice to

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contemplated or existing litigation.” Nevada Dept. of Corrections v. Greene, 648 F.3d 1014,

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1018 (9th Cir. 2011) (citing Lewis, 518 U.S. at 348) (internal quotation marks omitted);

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Christopher v. Harbury, 536 U.S. 403, 415, 122 S.Ct. 2179 (2002).

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“[T]he injury requirement is not satisfied by just any type of frustrated legal claim.”

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Lewis, 518 U.S. at 354. Inmates do not enjoy a constitutionally protected right “to transform

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themselves into litigating engines capable of filing everything from shareholder derivative

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actions to slip-and-fall claims.” Id. at 355. Rather, the type of legal claim protected is limited to

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direct criminal appeals, habeas petitions, and civil rights actions such as those brought under

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section 1983 to vindicate basic constitutional rights. Id. at 354 (quotations and citations omitted).

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“Impairment of any other litigating capacity is simply one of the incidental (and perfectly

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constitutional) consequences of conviction and incarceration.” Id. at 355 (emphasis in original).

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Moreover, when a prisoner asserts that he was denied access to the courts and seeks a

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remedy for a lost opportunity to present a legal claim, he must show: (1) the loss of a non-

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frivolous or arguable underlying claim; (2) the official acts that frustrated the litigation; and (3) a

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remedy that may be awarded as recompense but that is not otherwise available in a future suit.
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Phillips v. Hust, 477 F.3d 1070, 1076 (9th Cir.2007) (citing Christopher, 536 U.S. at 413–414,

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overruled on other grounds, Hust v. Phillips, 555 U.S. 1150, 129 S.Ct. 1036, (2009)).

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The complaint does not establish the nature of the state case or demonstrate whether it

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was “direct criminal appeals, habeas petitions, or civil rights actions,” if at all. Instead, the

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complaint merely makes conclusory statements outlining defendants alleged culpable behavior,

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namely that defendants failed to authorize documents and returned them to plaintiff. Plaintiff has

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not alleged the nature of the underlying claim and whether it was non-frivolous. To state such a

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claim, the plaintiff must describe this “predicate claim...well enough to apply the ‘non-frivolous'

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test and to show that the ‘arguable’ nature of the underlying claim is more than hope.”

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Christopher v. Harbury, 536 U.S. 403, 416 (2002). It is not enough for Plaintiff merely to

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conclude that the claim was non-frivolous. These allegations are not sufficient to state a claim.

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3. Retaliation

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Allegations of retaliation against a prisoner's First Amendment rights to speech or to

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petition the government may support a section 1983 claim. Rizzo v. Dawson, 778 F.2d 527, 532

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(9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v.

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Rowland, 65 F.3d 802, 807 (9th Cir. 1995). “Within the prison context, a viable claim of First

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Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some

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adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that

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such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did

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not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567–

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68 (9th Cir. 2005); accord Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009).

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The prisoner must show that the type of activity he was engaged in was constitutionally

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protected, that the protected conduct was a substantial or motivating factor for the alleged

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retaliatory action, and that the retaliatory action advanced no legitimate penological interest.

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Hines v. Gomez, 108 F.3d 265, 267-68 (9th Cir. 1997). Mere speculation that defendants acted

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out of retaliation is not sufficient. Wood v. Yordy, 753 F.3d 899, 904 (9th Cir. 2014) (citing

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cases) (affirming grant of summary judgment where no evidence that defendants knew about

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plaintiff's prior lawsuit, or that defendants' disparaging remarks were made in reference to prior

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lawsuit).

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Plaintiff is attempting to assert a claim for retaliation in violation of the First Amendment

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because he was transferred to a different prison. Plaintiff’s conclusory statement that he was

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transferred is insufficient to state a cognizable claim. A plaintiff suing for retaliation under

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section 1983 must allege that “he was retaliated against for exercising his constitutional rights

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and that the retaliatory action does not advance legitimate penological goals, such as preserving

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institutional order and discipline.” Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994).

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Fourteenth Amendment

Plaintiff alleges religious discrimination because he cannot use his real name on an
informa pauperis form to be processed through the Trust Office.

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The Equal Protection Clause of the Fourteenth Amendment affords a prisoner “a

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reasonable opportunity of pursuing his faith comparable to the opportunity afforded fellow

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prisoners who adhere to conventional religious precepts.” Shakur v. Schriro, 514 F.3d 878, 81

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(9th Cir. 2008) (quoting Cruz v. Beto, 405 U.S. 319, 322 (1972)). However, prisons “are not

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required to provide identical accommodations to inmates of every religious persuasion.” Rouser

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v. White, 630 F. Supp.2d 1165, 1200 (E.D. Cal. 2009) (citing Cruz, 405 U.S. at 322 n.2). To

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make an Equal Protection claim, an inmate must show that the prison treated him differently

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from a similarly situated class, raising an inference of discriminatory purpose. Shakur, 514 F.3d

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at 891; Rupe v. Cate, 688 F. Supp. 2d 1035, 1049 (E.D. Cal. 2010). In prison, an inmate's Equal

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Protection claim only succeeds where the prison's disparate treatment was not “reasonably

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related to legitimate penological interests.” Shakur, 514 F.3d at 891; see also Rupe, 688 F. Supp.

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2d at 1049. Allegations of disparate treatment, however, cannot be merely conclusory; they must

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have some specificity and factual support. See Rouser, 630 F. Supp. 2d at 1200.

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Plaintiff has failed to allege any facts showing he was intentionally treated differently

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from similarly situated inmates or that the denial of his informa pauperis form was not

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reasonably related to legitimate penological interests. Indeed, Plaintiff has alleged that such

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forms, with his real name, have been processed through the Trust Office. Accordingly, plaintiff's

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Fourteenth Amendment claim will be dismissed. The court will, however, grant leave to amend.

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5. Official Capacity

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Here, Plaintiff alleges the individual defendants are sued in their official capacities, for

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monetary damages.

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Plaintiff is advised that “[t]he Eleventh Amendment bars suits for money damages in

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federal court against a state, its agencies, and state officials acting in their official capacities.”

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Aholelel v. Dept. of Public Safety, 488 F.3d 1144, 1147 (9th Cir. 2007). However, “[a] state

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official in his or her official capacity, when sued for injunctive relief, [is] a person under § 1983

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because ‘official-capacity actions for prospective relief are not treated as actions against the

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State.’ ” Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 n.10 (1989). Also, the Eleventh

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Amendment does not bar suits seeking damages against state officials in their personal

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capacities. Hafer v. Melo, 502 U.S. 21, 30 (1991); Porter v. Jones, 319 F.3d 483, 491 (9th Cir.

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2003).

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capacities.

Plaintiff does not state a cognizable claim against the individuals in their official

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6. Inmate Appeals

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Plaintiff complains about the processing and denials of his inmate appeals by Defendants.

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However, Plaintiff cannot pursue any claims against prison staff based solely on the processing

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and review of his inmate appeals.

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The existence of an inmate appeals process does not create a protected liberty interest

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upon which Plaintiff may base a claim that he was denied a particular result or that the appeals

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process was deficient. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams,

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855 F.2d 639, 640 (9th Cir. 1988). To state a claim under section 1983, Plaintiff must

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demonstrate personal involvement in the underlying violation of his rights, Iqbal, 556 U.S. at

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677; Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002), and liability may not be based merely

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on Plaintiff’s dissatisfaction with the administrative process or a decision on an appeal, Ramirez,

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334 F.3d at 860; Mann, 855 F.2d at 640.

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CONCLUSION AND ORDER

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Plaintiff’s complaint fails to state a cognizable claim for relief against any of the named

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defendants. As Plaintiff is proceeding pro se, he will be given an opportunity to amend his

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complaint to cure the identified deficiencies to the extent he is able to do so in good faith. Lopez

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v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). Plaintiff may not change the nature of this suit by

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adding new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th

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Cir. 2007) (no “buckshot” complaints).

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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what

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each named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal,

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556 U.S. at 678-79, 129 S.Ct. at 1948-49. Although accepted as true, the “[f]actual allegations

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must be [sufficient] to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S.

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at 555 (citations omitted).

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Finally, Plaintiff is advised that an amended complaint supersedes the original complaint.

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Lacey, 693 F.3d at 927. Therefore, Plaintiff’s amended complaint must be “complete in itself

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without reference to the prior or superseded pleading.” Local Rule 220.

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

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

upon which relief can be granted;
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Within thirty (30) days from the date of service of this order, Plaintiff shall file a

first amended complaint;
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If Plaintiff fails to file a first amended complaint in compliance with this

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

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a claim.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

May 26, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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