Brown v. Bueno

Filing 17

FINDINGS and RECOMMENDATION to Dismiss for Failure to State a Claim, signed by Magistrate Judge Sheila K. Oberto on 11/20/18. Objections to F&R Due Within Twenty One Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SHERMAN ALAN BROWN,

Case No. 1:17-cv-01295-LJO-SKO (PC)

Plaintiff,

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FINDINGS AND RECOMMENDATION TO
DISMISS FOR FAILURE TO STATE A CLAIM

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v.

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A. BUENO, et al.,

(Doc. 16)
Defendants.

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TWENTY-ONE (21) DAY DEADLINE

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I.

Findings

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A.

Background

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Plaintiff, Sherman Alan Brown, is a state prisoner proceeding pro so in this civil rights

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action pursuant to 42 U.S.C. § 1983. Plaintiff’s Complaint was screened and dismissed with

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leave to amend. (Docs. 1, 13.) Plaintiff filed a First Amended Complaint which is before the

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Court for screening. (Doc. 16.) However, despite having received the applicable standards, as

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discussed below, Plaintiff fails to state any cognizable claims.

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B.

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

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

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frivolous, malicious, fail to state a claim upon which relief may be granted, or that seek 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)(i)-(iii). A complaint must be dismissed if it lacks a cognizable legal theory or
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fails to allege sufficient facts under a cognizable legal theory. See Balistreri v. Pacifica Police

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Department, 901 F.2d 696, 699 (9th Cir. 1990).

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

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immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp.

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Ass’n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source

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of substantive rights, but simply provides a method for vindicating federal rights conferred

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elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

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To state a claim under § 1983, a plaintiff must allege two essential elements: (1) a right
secured by the Constitution or laws of the United States was violated and (2) the alleged violation

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was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42,

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48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987). A complaint will be

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dismissed if it lacks a cognizable legal theory or fails to allege sufficient facts under a cognizable

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legal theory. See Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990).

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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall

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dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a

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claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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C.

Summary of the First Amended Complaint

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Plaintiff, who is currently housed at Kern Valley State Prison (“KVSP”), complains of

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incidents that occurred when he was housed at the California State Prison in Corcoran (“CSP-

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Cor”). Plaintiff names Correctional Officers (“C/O”) A. Bueno and N. Delos Santos and

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Associate Warden (“AW”) J. Perez as the defendants in this action. In his first claim, Plaintiff

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alleges that C/O Bueno failed to follow the prison’s policy and procedures when she wrongly

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denied him numerous editions of magazines he had ordered and for which he had paid. In his

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second claim, Plaintiff alleges that C/O Delos Santos and AW Perez wrongly denied his inmate

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appeals in connection with Plaintiff’s allegations that C/O Bueno deprived him of his magazines

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and failed to take corrective steps, return the magazines to him, or reimburse him for the

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magazines C/O Bueno failed to deliver to Plaintiff. Plaintiff alleges that the acts of which he

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complains amounted to deliberate indifference and deprived him of his rights under the “Free
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Exercise Clause” of the First and Fourteenth Amendments. Plaintiff seeks $600 to compensate

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him for the lost magazines.

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As discussed below, these allegations do not state a cognizable claim for violation of any

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constitutional rights. Plaintiff was previously provided with the applicable standards for the

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claims raised in this action and informed of deficiencies in his factual allegations. Plaintiff’s First

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Amended Complaint nonetheless fails to state any cognizable claims. It thus appears that

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Plaintiff is unable to state a cognizable claim justifying dismissal of this action.

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D.

Pleading Requirements
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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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Detailed factual allegations are not required, but “[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 “sufficient 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 “plaintiffs [now] face a higher burden of pleadings facts . . . ,” Al-Kidd v. Ashcroft,

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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,”

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Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989), “a liberal interpretation of a civil rights

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complaint may not supply essential elements of the claim that were not initially pled,” Bruns v.
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Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents,

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673 F.2d 266, 268 (9th Cir. 1982), and courts are not required to indulge unwarranted inferences,

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Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and

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citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient,

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and “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; Moss, 572 F.3d at 969.

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E.

Claims for Relief
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Eighth Amendment – 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).

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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).

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Objectively, extreme deprivations are required to set forth 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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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. Some conditions of confinement may
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establish an Eighth Amendment violation “in combination” when each would not do so alone, but

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only when they have a mutually enforcing effect that produces the deprivation of a single,

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identifiable human need such as food, warmth, or exercise—for example, a low cell temperature

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at night combined with a failure to issue blankets. Wilson, 501 U.S. at 304-05(comparing Spain

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v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979) (outdoor exercise required when prisoners

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otherwise confined in small cells almost 24 hours per day), with Clay v. Miller, 626 F.2d 345, 347

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(4th Cir. 1980) (outdoor exercise not required when prisoners otherwise had access to dayroom

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18 hours per day)). To say that some prison conditions may interact in this fashion is far from

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saying that all prison conditions are a seamless web for Eighth Amendment purposes. Id.

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Amorphous “overall conditions” cannot rise to the level of cruel and unusual punishment when

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no specific deprivation of a single human need exists. Id. Temporarily unconstitutional

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conditions of confinement do not necessarily rise to the level of constitutional violations. See

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Anderson, 45 F.3d 1310, ref. Hoptowit, 682 F.2d at 1258 (abrogated on other grounds by Sandin,

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515 U.S. 472 (in evaluating challenges to conditions of confinement, length of time the prisoner

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must go without basic human needs may be considered)). Objectively, Plaintiff’s deprivation of

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magazines does not rise to the level of a constitutional violation.

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Subjectively, if an objective deprivation is shown, a plaintiff must show that prison

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officials acted with a sufficiently culpable state of mind—that of “deliberate indifference.”

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Wilson, 501 U.S. at 303; Labatad, 714 F.3d at 1160; Johnson, 217 F.3d at 733. “Deliberate

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indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir.2004).

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“Under this standard, the prison official must not only ‘be aware of the facts from which the

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inference could be drawn that a substantial risk of serious harm exists,’ but that person ‘must also

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draw the inference.’” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a prison official should

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have been aware of the risk, but was not, then the official has not violated the Eighth

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Amendment, no matter how severe the risk.’” Id. (quoting Gibson v. County of Washoe, Nevada,

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290 F.3d 1175, 1188 (9th Cir. 2002)). To prove knowledge of the risk, however, the prisoner

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may rely on circumstantial evidence—the very obviousness of the risk may be sufficient to

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establish knowledge. Farmer, 511 U.S. at 842; Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir.
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1995). Even though Plaintiff alleges that defendants were aware that he was being deprived of

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his magazines, any such deprivation does not amount to create a substantial risk of serious harm.

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Plaintiff’s claim is thus not cognizable under the Eight Amendment.

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2.

Fourteenth Amendment – Due Process

Plaintiff alleges he was deprived of various magazines he had ordered and for which he

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had paid. The Due Process Clause protects prisoners from being deprived of property without

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due process of law, Wolff v. McDonnell, 418 U.S. 539, 556 (1974), and prisoners have a protected

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interest in their personal property, Hansen v. May, 502 F.2d 728, 730 (9th Cir. 1974). However,

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while an authorized, intentional deprivation of property is actionable under the Due Process

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Clause, see Hudson v. Palmer, 468 U.S. 517, 532, n.13 (1984) (citing Logan v. Zimmerman Brush

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Co., 455 U.S. 422 (1982)); Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir. 1985), neither negligent

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nor unauthorized intentional deprivations of property by a state employee “constitute a violation

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of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a

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meaningful post-deprivation remedy for the loss is available,” Hudson v. Palmer, 468 U.S. 517,

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533 (1984). The Due Process Clause is violated only when the agency “prescribes and enforces

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forfeitures of property without underlying statutory authority and competent procedural

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protections,” Nevada Dept. of Corrections v. Greene, 648 F.3d 1014, 1019 (9th Cir. 2011) (citing

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Vance v. Barrett, 345 F.3d 1083, 1090 (9th Cir. 2003)) (internal quotations omitted).

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Plaintiff’s allegations are based on an unauthorized deprivation because he alleges C/O

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Bueno deprived him of his magazines in violation of prison policy and without following the

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proper procedures. A state prisoner has no cause of action under 42 U.S.C. § 1983 for an

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unauthorized deprivation of property, either intentional or negligent, by a state employee if a

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meaningful state post-deprivation remedy for the loss is available. Hudson v. Palmer, 468 U.S.

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517, 533 (1984). California law provides an adequate post-deprivation remedy for any property

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deprivations. Barnett v. Centoni, 31 F.3d 813, 816-817 (9th Cir. 1994) (citing Cal. Gov’t Code

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§§ 810-895). Thus, Plaintiff does not state a cognizable claim under the Due Process Clause

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based on deprivation of his magazines by C/O Bueno.

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3.

First Amendment -- Free Exercise Clause

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The First Amendment is applicable to state action by incorporation through the Fourteenth

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Amendment. Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 8 (1947). “The right to exercise

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religious practices and beliefs does not terminate at the prison door[,]” McElyea v. Babbitt, 833

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F.2d 196, 197 (9th Cir. 1987) (citing O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987)), but

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a prisoner’s right to free exercise of religion “is necessarily limited by the fact of incarceration,”

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Ward v. Walsh, 1 F.3d 873, 876 (9th Cir.1993) (citing O’Lone, 482 U.S. at 348). The Free

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Exercise Clause of the First Amendment is “not limited to beliefs which are shared by all of the

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members of a religious sect.” Holt v. Hobbs, --- U.S. ---, 135 S.Ct. 853, 862 (2015) (quoting

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Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 715-716 (1981)). It is

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not the centrality of particular beliefs or practices of a faith, but the sincerity of the plaintiff’s

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belief that is relevant to the free exercise inquiry. Shakur v. Schriro, 514 F.3d 878, 885 (9th Cir.

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2008) (citing Levitan v. Ashcroft, 281 F.3d 1313, 1319 (D.C.Cir.2002) (“A requirement that a

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religious practice be mandatory to warrant First Amendment protection finds no support in the

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cases of the Supreme Court or of this court.”); DeHart v. Horn, 227 F.3d 47, 51 (3d Cir. 2000)

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(en banc) (“[O]nly those beliefs which are both sincerely held and religious in nature are entitled

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to constitutional protection.”).

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A person asserting a free exercise claim must show that the government action in question

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substantially burdens the person’s practice of her religion. Jones v. Williams, 791 F.3d 1023,

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1031 (9th Cir. 2015) citing Graham v. C.I.R., 822 F.2d 844, 851 (9th Cir.1987), aff’d sub nom.

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Hernandez v. C.I.R., 490 U.S. 680, 699 (1989). “A substantial burden . . . place[s] more than an

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inconvenience on religious exercise; it must have a tendency to coerce individuals into acting

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contrary to their religious beliefs or exert substantial pressure on an adherent to modify his

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behavior and to violate his beliefs.” Ohno v. Yasuma, 723 F.3d 984, 1011 (9th Cir. 2013)

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(quoting Guru Nanak Sikh Soc’y of Yuba City v. Cnty. of Sutter, 456 F.3d 978, 988 (9th Cir.

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2006) (internal quotation marks and alterations omitted)). “[A] prison policy that ‘intentionally

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puts significant pressure on inmates ... to abandon their religious beliefs ... imposes a substantial

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burden on [the inmate’s] religious practice.’ ” Shakur, 514 F.3d at 889, quoting Warsoldier, 418
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F.3d at 996 (alteration in Shakur); see also Sherbert v. Verner, 374 U.S. 398, 404 (1963).
“To ensure that courts afford appropriate deference to prison officials,” the Supreme Court

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has directed that alleged infringements of prisoners’ free exercise rights be “judged under a

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‘reasonableness’ test less restrictive than that ordinarily applied to alleged infringements of

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fundamental constitutional rights.” O’Lone, 482 U.S. at 349. The challenged conduct “is valid if

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it is reasonably related to legitimate penological interests.” Id. (quoting Turner v. Safley, 482

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U.S. 78, 89 (1987)). “[T]he availability of alternative means of practicing religion is a relevant

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consideration” for claims under the First Amendment. Holt v. Hobbs, --- U.S. ---, 135 S.Ct. 853,

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862 (2015).

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Here, Plaintiff’s allegations are devoid of any facts that are even remotely related to his

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religious beliefs. Thus, Plaintiff fails to state a cognizable claim under the “Free Exercise

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Clause” of the First Amendment for infringement on his religious rights.

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4.

Inmate Appeals

Plaintiff’s allegations against C/O Delos Santos and AW Perez are based entirely on their

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involvement in the processing of his inmate appeals regarding having been deprived of his

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magazines by C/O Bueno. However, as stated in the prior screening order, “inmates lack a

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separate constitutional entitlement to a specific prison grievance procedure.” Ramirez v. Galaza,

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

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entitlement to a specific grievance procedure), citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir.

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1988). “[A prison] grievance procedure is a procedural right only, it does not confer any

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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). “Hence, 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). Actions in reviewing a prisoner’s

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administrative appeal generally cannot serve as the basis for liability under a § 1983 action.

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Buckley, 997 F.2d at 495. Since Plaintiff does not have any substantive rights under the inmate
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appeals system, he cannot state a cognizable claim for actions which prevented him from using it.

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Further, there must be a cognizable underlying claim for the assertion of a valid claim against a

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supervisor for failing to take corrective actions via the processing of inmate appeals. As

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discussed above, Plaintiff’s allegations against C/O Bueno are not cognizable. As such, his

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allegations against C/O Delos Santos and AW Perez—based on their processing of Plaintiff’s

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related inmate appeals—are likewise not cognizable.

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II.

CONCLUSION

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Plaintiff’s First Amended Complaint fails to state any cognizable claims. Given that the

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Plaintiff was provided the applicable pleading requirements and legal standards for his claims in

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the prior screening order, it appears futile to allow further amendment. Further, Plaintiff should

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not be granted leave to amend as the defects in his pleading are not capable of being cured

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through amendment. Akhtar v. Mesa, 698 F.3d 1202, 1212-13 (9th Cir. 2012).
Accordingly, it is HEREBY RECOMMENDED that this entire action be dismissed with

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prejudice based on Plaintiff’s failure to state a cognizable claim.
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 21

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days after being served with these Findings and Recommendations, Plaintiff may file written

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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the

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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,

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839 (9th Cir. Nov. 18, 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

November 20, 2018

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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