Calihan v. Crounse et al

Filing 8

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND; ORDER DENYING Motion for Appointment of Counsel, Without Prejudice, signed by Magistrate Judge Gary S. Austin on 9/25/17: 30-Day Deadline for Plaintiff to File Amended Complaint. (Attachments: # 1 Amended Complaint - blank form)(Hellings, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KENNY CALIHAN, 12 Plaintiff, 13 14 vs. D. CROUNSE, et al., 15 Defendants. 16 SCREENING ORDER ORDER DISMISSING COMPLAINT FOR VIOLATION OF RULE 8 AND FOR FAILURE TO STATE A CLAIM, WITH LEAVE TO AMEND (ECF No. 1.) ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL, WITHOUT PREJUDICE 17 18 THIRTY-DAY DEADLINE FOR PLAINTIFF TO FILE AMENDED COMPLAINT 19 20 ORDER FOR CLERK TO SEND PLAINTIFF A CIVIL COMPLAINT FORM 21 22 1:17-cv-00139-DAD-GSA-PC I. BACKGROUND 23 Kenny Calihan (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 24 with this civil rights action pursuant to 42 U.S.C. § 1983. On February 1, 2017, Plaintiff filed 25 the original Complaint, which is now before the court for screening. (ECF No. 1.) 26 II. SCREENING REQUIREMENT 27 The court is required to screen complaints brought by prisoners seeking relief against a 28 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 1 1 The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 2 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 3 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 4 § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been 5 paid, the court shall dismiss the case at any time if the court determines that the action or 6 appeal fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 7 III. SUMMARY OF COMPLAINT 8 Plaintiff is presently incarcerated at North Kern State Prison in Delano, California. The 9 events at issue in the Complaint allegedly occurred at the California Correctional Institution in 10 Tehachapi, California, when Plaintiff was incarcerated there in the custody of the California 11 Department of Corrections and Rehabilitation. Plaintiff names as defendants Lieutenant D. 12 Crounse, Sergeant H. Huebner, and Sergeant T. Clayton (collectively, “Defendants”). 13 Plaintiff indicates in the Complaint that he seeks to bring claims for violation of his 14 rights to equal protection and due process. (ECF No. 1 at 3.) Plaintiff’s allegations follow, in 15 their entirety: 16 Plaintiff will submit the Second Level appeal reply that was partially granted by the Facility Chief Deputy Warden, attached as Exhibit A, as his supporting facts on this civil action filed with the court. Plaintiff will also submit Exhibit B, as his supporting facts on this civil action filed with the court, as 8 due process violations were approved by Facility Chief Disciplinary Officer E. Yett, dated on 01-18-2017. End. 17 18 19 20 21 Plaintiff seeks monetary damages and court-appointed counsel. IV. PLAINTIFF’S CLAIMS 22 The Civil Rights Act under which this action was filed provides: 23 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 24 25 26 27 42 U.S.C. § 1983. 28 /// 2 1 “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a 2 method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 3 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also Chapman 4 v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697 5 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); 6 Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). “To the extent that the violation of 7 a state law amounts to the deprivation of a state-created interest that reaches beyond that 8 guaranteed by the federal Constitution, Section 1983 offers no redress.” Id. 9 To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under 10 color of state law and (2) the defendant deprived him or her of rights secured by the 11 Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 12 2006); see also Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing 13 “under color of state law”). A person deprives another of a constitutional right, “within the 14 meaning of § 1983, ‘if he does an affirmative act, participates in another’s affirmative act, or 15 omits to perform an act which he is legally required to do that causes the deprivation of which 16 complaint is made.’” Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th 17 Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite 18 causal connection may be established when an official sets in motion a ‘series of acts by others 19 which the actor knows or reasonably should know would cause others to inflict’ constitutional 20 harms.” Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of 21 causation “closely resembles the standard ‘foreseeability’ formulation of proximate cause.” 22 Arnold v. Int’l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City 23 of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). 24 Rule 8(a) of the Federal Rules of Civil Procedure 25 Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 26 exceptions, none of which apply to § 1983 actions. Swierkeiwicz v. Sorema, N.A., 534 U.S. 27 506, 512 (2002). Under federal notice pleading, a complaint is required to contain “a short and 28 plain statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. P. 3 1 8(a)(2). “Such a statement must simply give defendant fair notice of what the plaintiff’s claims 2 is and the grounds upon which it rests.” Swierkewicz, 534 U.S. at 512. Detailed factual 3 allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, 4 supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 5 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964- 6 65 (2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge 7 unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) 8 (internal quotation marks and citation omitted). To state a viable claim for relief, Plaintiff must 9 set forth sufficient factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 10 S.Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere 11 possibility of misconduct falls short of meeting this plausibility standard. Id. 12 Plaintiff’s Complaint fails to comport with Rule 8(a)’s requirement for “a short and 13 plain statement of the claim showing that the pleader is entitled to relief.” Plaintiff fails to 14 allege what each of the named Defendants did to violate Plaintiff’s rights. Plaintiff cannot 15 simply refer the court to the exhibits attached to his Complaint. It is not the duty of the court to 16 look through Plaintiff’s exhibits to determine whether or not he has cognizable claims. Rather, 17 the court looks to the factual allegations contained in Plaintiff’s Complaint to determine 18 whether or not Plaintiff has stated a cognizable claim for relief under § 1983. Here, Plaintiff 19 has not made any allegations in the Complaint and therefore fails to state any claims. 20 Plaintiff’s Complaint shall be dismissed for violation of Rule 8(a) and for failure to state a 21 claim, with leave to file an amended complaint. In the paragraphs that follow, the court shall 22 set forth legal standards for the claims it appears Plaintiff wishes to bring. Plaintiff should 23 review the standards before preparing the First Amended Complaint. 24 V. DUE PROCESS – DISCIPLINARY PROCEEDING 25 The Due Process Clause protects prisoners from being deprived of liberty without due 26 process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a cause of 27 action for deprivation of procedural due process, a plaintiff must first establish the existence of 28 a liberty interest for which the protection is sought. Liberty interests may arise from the Due 4 1 Process Clause itself or from state law. Hewitt v. Helms, 459 U.S. 460, 466-68 (1983). With 2 respect to liberty interests arising from state law, the existence of a liberty interest created by 3 prison regulations is determined by focusing on the nature of the deprivation. Sandin v. 4 Conner, 515 U.S. 472, 481-84 (1995). Liberty interests created by prison regulations are 5 limited to freedom from restraint which “imposes atypical and significant hardship on the 6 inmate in relation to the ordinary incidents of prison life.” Id. at 484. 7 “Prison disciplinary proceedings are not part of a criminal prosecution, and the full 8 panoply of rights due a defendant in such proceedings does not apply.” Wolff v. McDonnell, 9 418 U.S. 539, 556 (1974). With respect to prison disciplinary proceedings, the minimum 10 procedural requirements that must be met are: (1) written notice of the charges; (2) at least 24 11 hours between the time the prisoner receives written notice and the time of the hearing, so that 12 the prisoner may prepare his defense; (3) a written statement by the fact finders of the evidence 13 they rely on and reasons for taking disciplinary action; (4) the right of the prisoner to call 14 witnesses in his defense, when permitting him to do so would not be unduly hazardous to 15 institutional safety or correctional goals; and (5) legal assistance to the prisoner where the 16 prisoner is illiterate or the issues presented are legally complex. Id. at 563-71. As long as the 17 five minimum Wolff requirements are met, due process has been satisfied. Walker v. Sumner, 18 14 F.3d 1415, 1420 (9th Cir. 1994). “Some evidence” must support the decision of the hearing 19 officer. Superintendent v. Hill, 472 U.S. 445, 455 (1985). The standard is not particularly 20 stringent and the relevant inquiry is whether “there is any evidence in the record that could 21 support the conclusion reached . . . .” Id. at 455-56 (emphasis added). 22 VI. EQUAL PROTECTION – DISCRIMINATION 23 The Equal Protection Clause requires that persons who are similarly situated be treated 24 alike. City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249 25 (1985); Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008). An equal protection claim may 26 be established by showing that Defendants intentionally discriminated against Plaintiff based 27 on his membership in a protected class, Comm. Concerning Cmty. Improvement v. City of 28 Modesto, 583 F.3d 690, 702-03 (9th Cir. 2009); Serrano v. Francis, 345 F.3d 1071,1082 (9th 5 1 Cir. 2003), Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001), or that similarly 2 situated individuals were intentionally treated differently without a rational relationship to a 3 legitimate state purpose, Engquist v. Oregon Department of Agr., 553 U.S. 591, 601-02, 128 4 S.Ct. 2146 (2008); Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073 5 (2000); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008); North Pacifica LLC 6 v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008). 7 VII. MOTION FOR APPOINTMENT OF COUNSEL 8 Plaintiff seeks court-appointed counsel. Plaintiff does not have a constitutional right to 9 appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and 10 the court cannot require an attorney to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). 11 Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298 12 (1989). However, in certain exceptional circumstances the court may request the voluntary 13 assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 14 Without a reasonable method of securing and compensating counsel, the court will seek 15 volunteer counsel only in the most serious and exceptional cases. In determining whether 16 “exceptional circumstances exist, the district court must evaluate both the likelihood of success 17 of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 18 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 19 In the present case, the court does not find the required exceptional circumstances. At 20 this early stage in the proceedings, the court cannot make a determination that plaintiff is likely 21 to succeed on the merits. By this order, the court has screened the Complaint as required under 22 28 U.S.C. 1915, and the court finds no cognizable claims in Plaintiff=s Complaint. Therefore, 23 Plaintiff’s request for counsel shall be denied without prejudice to renewal of the motion at a 24 later stage of the proceedings. 25 VIII. CONCLUSION AND ORDER 26 The court finds that Plaintiff’s Complaint violates Rule 8 and fails to state any claim 27 upon which relief may be granted under § 1983. The court will dismiss the Complaint and give 28 Plaintiff leave to file an amended complaint addressing the issues described above. 6 1 Under Rule 15(a) of the Federal Rules of Civil Procedure, “[t]he court should freely 2 give leave to amend when justice so requires.” Accordingly, the court will provide Plaintiff an 3 opportunity to file an amended complaint curing the deficiencies identified above. Lopez v. 4 Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000). Plaintiff is granted leave to file the First 5 Amended Complaint within thirty days. 6 The First Amended Complaint must allege facts showing what each named defendant 7 did that led to the deprivation of Plaintiff’s constitutional rights. Fed. R. Civ. P. 8(a); Iqbal, 8 556 U.S. at 678; Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 9 demonstrate that each defendant personally participated in the deprivation of his rights by his 10 or her actions. Id. at 676-77 (emphasis added). Plaintiff should not include legal citations or 11 evidentiary matter. Exhibits are permissible, Fed. R. Civ. P. 10(c), but they are not necessary 12 in the federal system of notice pleading, Fed. R. Civ. P. 8(a). The court strongly suggests to 13 Plaintiff that they should not be submitted where (1) they serve only to confuse the record and 14 burden the court, or (2) they are intended as future evidence. If this action reaches a juncture at 15 which the submission of evidence is appropriate and necessary (e.g., summary judgment or 16 trial), Plaintiff will have the opportunity at that time to submit his evidence. Plaintiff must 17 Plaintiff should note that although he has been given the opportunity to amend, it is not 18 for the purpose of changing the nature of this suit or adding unrelated claims. George v. Smith, 19 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints). Furthermore, Plaintiff is not 20 granted leave to add allegations of events occurring after the date he filed the Complaint, 21 February 1, 2017. 22 Plaintiff is advised that an amended complaint supercedes the original complaint, Lacey 23 v. Maricopa County, 693 F 3d. 896, 907 n.1 (9th Cir. 2012), and it must be complete in itself 24 without reference to the prior or superceded pleading, Local Rule 220. Therefore, in an 25 amended complaint, as in an original complaint, each claim and the involvement of each 26 defendant must be sufficiently alleged. The amended complaint should be clearly and boldly 27 titled “First Amended Complaint,” refer to the appropriate case number, and be an original 28 signed under penalty of perjury. 7 1 Based on the foregoing, it is HEREBY ORDERED that: 2 1. 3 Plaintiff’s Complaint is DISMISSED for violation of Rule 8 and for failure to state a claim, with leave to amend; 4 2. Plaintiff’s request for appointment of counsel is DENIED, without prejudice; 5 3. The Clerk’s Office shall send Plaintiff a civil rights complaint form; 6 4. Plaintiff is granted leave to file a First Amended Complaint curing the 7 deficiencies identified by the court in this order, within thirty (30) days from 8 the date of service of this order; 9 5. 10 11 Plaintiff shall caption the amended complaint “First Amended Complaint” and refer to the case number 1:17-cv-00139-DAD-GSA-PC; and 6. 12 If Plaintiff fails to file a First Amended Complaint within thirty days, this case shall be dismissed for failure to state a claim. 13 14 15 16 IT IS SO ORDERED. Dated: September 25, 2017 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 8

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