Haynie v. Voong et al

Filing 11

FINDINGS and RECOMMENDATIONS recommending that this action be DISMISSED, with prejudice, for failure to state a claim pursuant to 28:1915A; this action be dismissed for failure to obey the Court's October 6, 2017 order 10 and for Plaintiff 9;s failure to prosecute this action; this dismissal counts as a strike against Plaintiff under 28:1915(g) re 9 Amended Prisoner Civil Rights Complaint filed by Donell Thomas Haynie ; referred to Judge Ishii,signed by Magistrate Judge Barbara A. McAuliffe on 11/21/17. Objections to F&R due 14-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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DONELL THOMAS HAYNIE,

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Plaintiff,

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v.
M. VOONG, et al.,

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Case No. 1:16-cv-01561-AWI-BAM (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF ACTION,
WITH PREJUDICE, FOR FAILURE TO
STATE A CLAIM, FAILURE TO OBEY A
COURT ORDER, AND FAILURE TO
PROSECUTE

Defendants.
(ECF No. 10)

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FOURTEEN (14) DAY DEADLINE

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I.

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Plaintiff Donell Thomas Haynie (“Plaintiff”) is a state prisoner proceeding pro se and in

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Background

forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

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On October 6, 2017, the Court dismissed the first amended complaint with leave to amend

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within thirty days after service. (ECF No. 10). Plaintiff was expressly warned that if he failed to

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file a second amended complaint in compliance with the Court’s order, this action would be

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dismissed for failure to state a claim and failure to obey a court order. (Id. at 8.) The deadline for

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Plaintiff to file a second amended complaint has passed, and he has not complied with the Court’s

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order or otherwise communicated with the Court.

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II.

Failure to State a Claim
A. Screening Requirement

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 U.S.C.

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§ 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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Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338,

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342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff’s claims must be facially

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plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each

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named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949

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(quotation marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir.

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2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere

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consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678,

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129 S. Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969.

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B. Plaintiff’s Complaint
Plaintiff is currently housed at the California Correctional Institution (CCI) in Tehachapi,
California, where the events at issue occurred. Plaintiff names M. Voong, chief of appeals, M.
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Hodges, Captain, and E. Garcia, Warden as defendants in the case. Plaintiff alleges as follows.

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On January 14, 2016, Plaintiff arrived at CCI. Plaintiff attended a classification committee

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meeting on January 27, 2016. Plaintiff was told that he would be restricted to non-contact visits

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with minors because of a juvenile hearing in 2001, when Plaintiff was 15 years old. Plaintiff had

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never been told that his visits were restricted and that prior to arriving at CCI, he had been

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allowed to receive visitors with minors present. He was also employed in 2012 and 2013 in the

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visiting room at Kern Valley State Prison where minors were present.

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On February 22, 2016, Plaintiff filed an appeal and requested that his visitation be

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investigated as he was trying to schedule a visit with his 13 year old daughter. On April 8, 2016,

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Plaintiff received a response from Chief Deputy Warden E. Garcia. The appeal response granted

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Plaintiff’s request for a quick investigation and denied Plaintiff’s request for visitation with

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minors. Plaintiff received a third level response on July 25, 2016 stating that Plaintiff was “well

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aware” of the imposed visiting restrictions and dismissed the appeal. Plaintiff alleges that the

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dismissal failed to provide the information that indicated Plaintiff was aware or waived his

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visitation rights. The third level appeal failed to recognize that Plaintiff had received visits with

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minors before and failed to acknowledge that a hearing was not conducted to determine if

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Plaintiff was a threat.

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Plaintiff alleges Defendant Voong is legally responsible for overall operation of inmate

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appeals. Defendant Hodges, as captain, was assigned to review the appeal at the third level.

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Defendant Garcia is the Warden and legally responsible for the operation of CCI.

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Plaintiff has been unable to visit with his family for contact visits. Contact visits are for 6 hours

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while no-contact visits are only behind a glass for a maximum of 1 hour. Plaintiff has stress,

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anxiety, high blood pressure, for not having contact with his family. Plaintiff sues each defendant

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in their official and individual capacities and seeks $1 million from each defendant and punitive

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damages of $2 million.

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C. Discussion
i. Federal Rule of Civil Procedure 8
Pursuant to Federal Rule of Civil Procedure 8, 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. P. 8(a). As

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noted above, detailed factual allegations are not required, but “[t]hreadbare recitals of the

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elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal,

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556 U.S. at 678 (citation omitted). Plaintiff must set forth “sufficient factual matter, accepted as

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true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at

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555). While factual allegations are accepted as true, legal conclusions are not. Id.; see also

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Twombly, 550 U.S. at 556–557; Moss, 572 F.3d at 969.
Plaintiff’s complaint is short but fails to state a claim. Plaintiff fails to allege what each
person did that he believes violated his right.
ii. Supervisory Liability

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Plaintiff names M. Voong, chief of appeals, M. Hodges, Captain, and E. Garcia, Warden

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as defendants. Plaintiff alleges that these Defendants have the legal responsibility for operations

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of the inmate appeals and of the institution.

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Supervisory personnel may not be held liable under section 1983 for the actions of

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subordinate employees based on respondeat superior or vicarious liability. Crowley v. Bannister,

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734 F.3d 967, 977 (9th Cir. 2013); accord Lemire v. Cal. Dep’t of Corr. and Rehab., 726 F.3d

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1062, 1074–75 (9th Cir. 2013); Lacey v. Maricopa Cty., 693 F.3d 896, 915–16 (9th Cir. 2012) (en

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banc). “A supervisor may be liable only if (1) he or she is personally involved in the

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constitutional deprivation, or (2) there is a sufficient causal connection between the supervisor’s

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wrongful conduct and the constitutional violation.” Crowley, 734 F.3d at 977 (internal quotation

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marks omitted); accord Lemire, 726 F.3d at 1074–75; Lacey, 693 F.3d at 915–16. “Under the

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latter theory, supervisory liability exists even without overt personal participation in the offensive

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act if supervisory officials implement a policy so deficient that the policy itself is a repudiation of

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constitutional rights and is the moving force of a constitutional violation.” Crowley, 734 F.3d at

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977 (citing Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)) (internal quotation marks
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omitted).
Under section 1983, Plaintiff must allege factual support to show that each defendant

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personally participated in the deprivation of his rights. Plaintiff must allege factual support to

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show that each defendant, through his or her own individual actions, violated Plaintiff's

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constitutional rights. Iqbal, 556 U.S. at 676. To the extent Plaintiff seeks to state a claim against

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Defendants Voong, Hodges, or Garcia, or any supervisory defendant, based on a policy, he must

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identify that policy, plead facts showing he was deprived of a constitutional right, and show that

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the policy was the cause, or moving force, of the violation or deprivation of his rights. He must

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also plead facts showing a sufficient connection between the defendant and the policy.

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iii. Contact Visits with Daughter
The Due Process Clause itself does not confer on inmates a liberty interest in a particular

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classification status. See Moody v. Daggett, 429 U.S. 78, 88, n.9 (1976). The existence of a

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liberty interest created by state law is determined by focusing on the nature of the deprivation.

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Sandin v. Conner, 515 U.S. 472, 481-84 (1995). Liberty interests created by state law 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.” Sandin, 515 U.S. at 484.

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Under certain circumstances, labeling a prisoner with a particular classification may

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implicate a liberty interest subject to the protections of due process. Neal v. Shimoda, 131 F.3d

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818, 830 (9th Cir. 1997) (“[T]he stigmatizing consequences of the attachment of the ‘sex

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offender’ label coupled with the subjection of the targeted inmate to a mandatory treatment

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program whose successful completion is a precondition for parole eligibility create the kind of

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deprivations of liberty that require procedural protections.”).

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It is unclear whether Plaintiff’s claim is that he was wrongly classified as a sex offender.

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Regardless, he does not allege that any named defendant was involved in the classification. He

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only alleges that they did not correct the situation on appeal.

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Plaintiff’s main allegation is that because of his wrongful classification, he cannot have

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contact visits with his daughter. An inmate has no federal constitutional right to contact

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visitation. Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 461 (1989) (“The denial of prison
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access to a particular visitor ‘is well within the terms of confinement ordinarily contemplated by a

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prison sentence,’ ... and therefore is not independently protected by the Due Process Clause.”);

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Block v. Rutherford, 468 U.S. 576, 589 (1984); Gerber v. Hickman, 291 F.3d 617, 621 (9th Cir.

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2002) (en banc) (“it is well-settled that prisoners have no constitutional right while incarcerated to

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contact visits or conjugal visits.”) (quoted in Shallowhorn v. Molina, 572 Fed.Appx. 545, 547

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(2014)). “[I]t is well-settled that prisoners have no constitutional right while incarcerated to

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contact visits.” Dunn v. Castro, 621 F.3d 1196, 1202 (9th Cir. 2010). Accordingly, this claim is

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not a cognizable basis for relief.

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Although it is well established that the First Amendment protects parent-child association,

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Bd. of Dir. v. Rotary Club, 481 U.S. 537, 545 (1987), and a parent generally has a “fundamental

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liberty interest” in “the companionship and society of his or her child,” Santosky v. Kramer, 455

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U.S. 745, 753 (1982), it nonetheless remains true that those rights can be significantly curtailed

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during incarceration. See Overton v. Bazzetta, 539 U.S. 126, 131, 133 (2003); see Turner v.

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Safeley, 482 U.S. 78, 89–91 (1987) (we held that four factors are relevant in deciding whether a

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prison regulation affecting a constitutional right that survives incarceration withstands

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constitutional challenge: whether the regulation has a “ ‘valid, rational connection’ ” to a

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legitimate governmental interest; whether alternative means are open to inmates to exercise the

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asserted right; what impact an accommodation of the right would have on guards and inmates and

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prison resources; and whether there are “ready alternatives” to the regulation.)

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Plaintiff has failed to state a cognizable claim as to his classification. Plaintiff has also
failed to state a cognizable claim as to contact visits with his daughter.
iv. Inmate Grievance Process
Plaintiff appears to bring suit against the defendants based on the handling and denial of

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his inmate appeals (grievances), including failure to correct his classification. However, Plaintiff

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cannot pursue any claims against staff relating to their involvement in the administrative

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processing or review of his prisoner grievances. Prisoners have no stand-alone due process rights

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related to the administrative grievance process. See Mann v. Adams, 855 F.2d 639, 640 (9th Cir.

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1988); see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding that there is no
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liberty interest entitling inmates to a specific grievance process). Because there is no right to any

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particular grievance process, it is impossible for due process to have been violated by ignoring or

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failing to properly process grievances. 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 677;

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

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Plaintiff’s dissatisfaction with the administrative process or a decision on an appeal, Ramirez, 334

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F.3d at 860; Mann, 855 F.2d at 640. Prison officials are not required under federal law to process

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inmate grievances in a specific way or to respond to them in a favorable manner. Because there is

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no right to any particular grievance process, Plaintiff cannot state a cognizable civil rights claim

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for a violation of his due process rights based on allegations that prison officials ignored or failed

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to properly process grievances. See, e.g., Wright v. Shannon, 2010 WL 445203 at *5 (E.D. Cal.

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Feb. 2, 2010) (plaintiff’s allegations that prison officials denied or ignored his inmate appeals

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failed to state a cognizable claim under the First Amendment).

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To the extent Plaintiff is attempting to state a claim for failure to process his inmate

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appeal, there is no right to any particular grievance process and failure to properly process a

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grievance does not violate his due process rights. Similarly, a defendant cannot be liable where

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the defendant’s only involvement is in the appeal process.

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v. Official Capacity

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Plaintiff sues each Defendant in their individual capacity and in their official capacity.

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“The Eleventh Amendment bars suits for money damages in federal court against a state, its

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agencies, and state officials in their official capacities.” Aholelei v. Dept. of Pub. Safety, 488

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F.3d 1144, 1147 (9th Cir. 2007) (citations omitted). Suits for injunctive relief are also generally

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barred. See Nat’l Audubon Soc’y v. Davis, 307 F.3d 835, 847 (9th Cir. 2002). However, the

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Eleventh 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), or suits for injunctive relief brought against state officials in their official capacities,

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Austin v. State Indus. Ins. Sys., 939 F.2d 676, 680 n.2 (9th Cir. 1991).

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Thus, Plaintiff may only proceed against any defendant for money damages in their

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individual capacity.

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III.

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Failure to Prosecute and Failure to Obey a Court Order
A. Legal Standard

Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with

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any order of the Court may be grounds for imposition by the Court of any and all sanctions . . .

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within the inherent power of the Court.” District courts have the inherent power to control their

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dockets and “[i]n the exercise of that power they may impose sanctions including, where

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appropriate, . . . dismissal.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A

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court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action,

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failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46

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F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet,

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963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring

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amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987)

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(dismissal for failure to comply with court order).

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In determining whether to dismiss an action, the Court must consider several factors:

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(1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its

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docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of

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cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779

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F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988).

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B. Discussion
Here, the action has been pending since October 2016, and Plaintiff’s second amended

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complaint is overdue. The Court cannot hold this case in abeyance awaiting compliance by

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Plaintiff. Thus, the Court finds that both the first and second factors weigh in favor of dismissal.

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The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a

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presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action.

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Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs

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against dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza,
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291 F.3d 639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose

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responsibility it is to move a case toward disposition on the merits but whose conduct impedes

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progress in that direction,” which is the case here. In re Phenylpropanolamine (PPA) Prods. Liab.

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Litig., 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted).

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Finally, the court’s warning to a party that failure to obey the court’s order will result in

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dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262;

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Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s October 6, 2017 order

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expressly warned Plaintiff that his failure to comply with that order would result in a dismissal of

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this action, with prejudice, for failure to state a claim and failure to obey a court order. (ECF No.

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10, p. 8.) Thus, Plaintiff had adequate warning that dismissal could result from his

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noncompliance.

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Additionally, at this stage in the proceedings there is little available to the Court which

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would constitute a satisfactory lesser sanction while protecting the Court from further

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unnecessary expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis in this

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action, making monetary sanctions of little use, and the preclusion of evidence or witnesses is

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likely to have no effect given that Plaintiff has ceased litigating his case.

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IV.

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Accordingly, it is HEREBY RECOMMENDED that:

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Conclusion and Recommendations

1. This action be dismissed, with prejudice, for failure to state a claim pursuant to 28 U.S.C.
§ 1915A;
2. This action be dismissed for failure to obey the Court’s October 6, 2017 order (ECF No.
10), and for Plaintiff’s failure to prosecute this action; and
3. This dismissal count as a strike against Plaintiff under 28 U.S.C. § 1915(g).

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within

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fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may

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file written objections with the Court. The document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file
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objections within the specified time may result in the waiver of the “right to challenge the

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magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.

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2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

November 21, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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