Wick v. Angelea et al

Filing 72

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 1/14/13 ORDERING that the Clerk of the Court randomly assign a United States District Judge to this action. U.S. District Judge Garland E. Burrell randomly assign ed to this action. Also, RECOMMENDING that with the exception of the retaliation claim against defendants Angelea, Monroe, Mejia and Grannis, all claims be dismissed from this action for failure to state a claim upon which relief may be granted; and defendants Angelea, Monroe, Mejia and Grannis be directed to file within 30 days of any order adopting these findings and recommendations, a response to the amended complaint as herein narrowed. Referred to Judge Garland E. Burrell. Objections due within 14 days. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ERIC WICK,
Plaintiff,

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vs.

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No. 2:09-cv-1027 EFB P

ANGELEA, et al.,

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ORDER AND
FINDINGS AND RECOMMENDATIONS1

Defendants.

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Plaintiff, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights

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action under 42 U.S.C. § 1983. The case was referred to the undersigned by Local Rule 302

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pursuant to 28 U.S.C. § 636(b)(1).

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion

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of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which

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relief may be granted,” or “seeks monetary relief from a defendant who is immune from such

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relief.” Id. § 1915A(b).

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Defendants failed to respond to the court’s order filed on January 29, 2010, Dckt. No.
10, directing that they complete and return the form indicating either their consent to jurisdiction
of the magistrate judge or request for reassignment to a district judge. Accordingly, the clerk
will be directed to randomly assign this case to a district judge
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After reviewing plaintiff’s original complaint pursuant to § 1915A, the court directed the

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U.S. Marshal to serve defendants Angelea, Prosper, Monroe, Gutierrez, Mejia, Hirai, Grannis,

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McClelland, and Peck. Dckt. No. 9. After defendants moved to dismiss the complaint for failure

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to state a claim, plaintiff requested leave to file an amended complaint. The court granted

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plaintiff’s request and denied the motions to dismiss as moot. Dckt. No. 54. Thereafter, plaintiff

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filed an amended complaint. As discussed below, the court found that the amended complaint

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stated a retaliation claim against defendants Angelea, Monroe, Mejia, and Grannis, and

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dismissed the remaining claims and defendants with leave to amend for failure to state a claim.

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Dckt. No. 65. Now before the court for screening is plaintiff’s second amended complaint,

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which supercedes all previously filed complaints. Dckt. No. 67.
In dismissing plaintiff’s first amended complaint with leave to amend, the court informed
plaintiff of the following:
The amended complaint names the following nine defendants: Angelea,
Prosper, Monroe, Gutierrez, Mejia, Hirai, Grannis, McClelland, and Peck. The
complaint, 40 pages in length excluding the 150 pages of exhibits, is
unnecessarily long and repetitive. The relevant factual allegations against each of
the defendants – as opposed to the many naked and speculative assertions – are
summarized below.

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The amended complaint alleges that Angelea compiled a “hit list” of
inmates to transfer out of the California Correctional Center (CCC) because the
inmates filed administrative appeals or were otherwise disliked by prison staff.
Dckt. No. 55, ¶¶ 19, 34; see also ¶¶ 43, 53, 56 (alleging Angelea and Grannis
were involved in a prior lawsuit plaintiff was litigating). Plaintiff claims he was
notified that he was to appear before the classification committee to determine
whether he would be transferred. Id. ¶ 21.

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Plaintiff claims the classification committee included defendants Angelea
and Monroe, but that Angelea was the sole decision-maker, and elected to transfer
plaintiff because he filed administrative appeals. Id. ¶¶ 22, 57. However,
plaintiff alleges defendant Monroe facilitated the retaliatory transfer by making
false statements in a form 128-G that Monroe improperly prepared in advance of
the hearing. Id. ¶¶ 21, 24, 28, 44, 57. Plaintiff claims further that defendant
Mejia was supposed to independently review the procedures to prevent an
arbitrary transfer, but instead endorsed the false 128-G to help ensure that the
retaliatory transfer was successful. Id. ¶¶ 25, 28, 45, 57. As a result, plaintiff
claims he was transferred to California State Prison, Solano (CSP-Solano). Id. ¶
32.

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Plaintiff alleges defendant Grannis thwarted the administrative appeals
process to prevent plaintiff from being transferred back to CCC from CSPSolano. Id. ¶¶ 34, 47, 54. Additionally, plaintiff alleges that at his next annual
classification committee meeting, defendant Peck told plaintiff he would not be
transferred back to CCC because he had issues with staff there. Id.
¶¶ 35-37, 48.

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Plaintiff claims defendants Gutierrez, Prosper, Hirai, Grannis, and
McClelland were all made aware of the retaliation and had “oversight
responsibility.” Id. ¶ 57. More specifically, plaintiff alleges that Gutierrez lied to
plaintiff’s parents by falsely informing them that plaintiff’s property would be
returned to CCC. Id. ¶¶ 31, 32, 46. He alleges that Prosper wrote a letter to
plaintiff’s parents that did not clarify the issue of plaintiff’s retaliatory transfer
and contained false statements. Id. ¶¶ 38-39, 49. He also alleges that Hirai wrote
a letter that contained false statements about whether plaintiff’s transfer was
lawful and did not deny that there was a “hit list.” Id. ¶¶ 40, 50. Based on these
allegations, plaintiff “presumes,” that Gutierrez, Hirai, and Prosper coordinated
efforts “to cover the arbitrary action up.” Id. ¶ 46. Additionally, plaintiff alleges
that it was McClelland’s job to investigate illegal CDCR activity, and that he
conducted only a limited inquiry and made false statements about plaintiff’s
transfer. Id. ¶¶ 41, 51.

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The amended complaint identifies the following claims for relief: (1)
“Retaliation for Exercise of First Amendment Rights;” (2) “Conspiracy to
Deprive Persons of Due Process and Equal Protection;” (3) “Having Knowledge
of and Failing to Stop Civil Rights Violations;” and (4) “Obstruction of Justice”
pursuant to 42 U.S.C. § 1985(2).

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Although plaintiff alleges that defendants violated several of his federally
protected rights, the nature of plaintiff’s allegations demonstrate a retaliation
claim against some of the defendants, at best. Liberally construed, the amended
complaint states a cognizable retaliation claim against defendants Angelea,
Monroe, Mejia, and Grannis. Although plaintiff purports to bring additional
claims for relief, the allegations fail to state a claim under the relevant legal
standards, discussed below. Thus, the remaining claims and defendants are
dismissed with leave to amend for failure to state a claim.

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In order to state a claim under 42 U.S.C. § 1983, a plaintiff must allege:
(1) the violation of a federal constitutional or statutory right; and (2) that the
violation was committed by a person acting under the color of state law. See West
v. Atkins, 487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d 930, 934 (9th Cir.
2002). Thus, plaintiff’s general claim that defendants knew of and failed to stop
unspecified “civil rights violations,” is not viable, as it superfluous to and
subsumed by plaintiff’s allegations regarding substantive causes of action. See
Albright v. Oliver, 510 U.S. 266, 271, (1994) (“Section 1983 ‘is not itself a source
of substantive rights,’ but merely provides ‘a method for vindicating federal rights
elsewhere conferred.’”) (quoting Baker v. McCollan, 443 U.S. 137, 144, n.3
(1979)). Moreover, mere allegations that any defendant made statements which
later proved to be false, do not contain sufficient factual matter to plausibly
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demonstrate that any defendant violated a federally protected right. An individual
defendant is not liable on a civil rights claim unless the facts establish the
defendant’s personal involvement in the constitutional deprivation or a causal
connection between the defendant’s wrongful conduct and the alleged
constitutional deprivation. See Hansen v. Black, 885 F.2d 642, 646 (9th Cir.
1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978). That is, plaintiff
may not sue any official on the theory that the official is liable for the
unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 129 S. Ct.
1937, 1948 (2009). Because respondeat superior liability is inapplicable to §
1983 suits, “a plaintiff must plead that each Government- official defendant,
through the official’s own individual actions, has violated the Constitution.” Id.
It is plaintiff’s responsibility to allege facts to state a plausible claim for relief.
Iqbal, 129 S. Ct. at 1949; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.
2009).

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Plaintiff claims defendants retaliated against him for exercising his First
Amendment rights. To state a retaliation claim, plaintiff must allege that a state
actor took some adverse action against him because of his protected conduct, and
that such action chilled the exercise of his First Amendment rights and did not
reasonably advance a legitimate penological purpose. Rhodes v. Robinson, 408
F.3d 559, 567-68 (9th Cir. 2005); Barnett v. Centoni, 31 F.3d 813, 815-16 (9th
Cir. 1994) (per curiam). A “legitimate penological purpose” is not reasonably
advanced where that purpose is abused “as a cover or a ruse to silence and
punish” an inmate for his protected conduct. Bruce v. Ylst, 351 F.3d 1283,
1289-90 (9th Cir. 2003); see id. (“[P]rison officials may not defeat a retaliation
claim on summary judgment simply by articulating a general justification for a
neutral process, when there is a genuine issue of material fact as to whether the
action was taken in retaliation for the exercise of a constitutional right.”); Rizzo v.
Dawson, 778 F.2d 527, 532 (9th Cir. 1985) (“[P]laintiff has alleged that Stocker’s
actions were retaliatory and were arbitrary and capricious. He has thereby
sufficiently alleged that the retaliatory acts were not a reasonable exercise of
prison authority and that they did not serve any legitimate correctional goal.”).
Aside from the retaliation claims against defendants Angelea, Monroe, Mejia, and
Grannis, identified as cognizable above, plaintiff has not alleged sufficient factual
matter to plausibly allege that any other defendant took some adverse action
against him because of his protected First Amendment conduct.

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Plaintiff claims defendants conspired to violate his equal protection and
due process rights. “To state a cause of action under § 1985(3), a complaint must
allege (1) a conspiracy, (2) to deprive any person or a class of persons the equal
protection of the laws, or of equal privileges and immunities under the laws, (3)
an act by one of the conspirators in furtherance of the conspiracy, and (4) a
personal injury, property damage or a deprivation of any right or privilege of a
citizen of the United States.” Gillespie v. Civiletti, 629 F.2d 637, 641 (9th Cir.
1980); see also Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971). “[T]he
language requiring intent to deprive equal protection . . . means that there must
be some racial, or perhaps otherwise class-based, invidiously discriminatory
animus behind the conspirators’ action.” Griffin, 403 U.S. at 102. The amended
complaint does not set forth facts sufficient to support conclusions that defendants
engaged in a conspiracy to violate plaintiff’s rights based on his membership in
any class. Thus, any conspiracy claim under 42 U.S.C. § 1985(3) fails.
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While conspiracy claims may be brought under section 1983, Mosher v.
Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), plaintiff fails to make the threshold
showing of any underlying equal protection or due process violation. To state a
conspiracy claim under § 1983, plaintiff must allege specific facts showing two or
more persons intended to accomplish an unlawful objective of causing plaintiff
harm and took some concerted action in furtherance thereof. Gilbrook v. City of
Westminster, 177 F.3d 839, 856-57 (9th Cir. 1999); Margolis v. Ryan, 140 F.3d
850, 853 (9th Cir. 1998) (to state claim for conspiracy under § 1983, plaintiff
must allege facts showing an agreement among the alleged conspirators to deprive
him of his rights); Delew v. Wagner, 143 F.3d 1219, 1223 (9th Cir. 1998) (to state
claim for conspiracy under § 1983, plaintiff must allege at least facts from which
such an agreement to deprive him of rights may be inferred); Burns v. County of
King, 883 F.2d 819, 821 (9th Cir. 1989) (per curiam) (conclusory allegations of
conspiracy insufficient to state a valid § 1983 claim); Karim-Panahi v. Los
Angeles Police Dep’t, 839 F.2d 621, 626 (9th Cir. 1988). Here, plaintiff claims
that defendants conspired to violate his due process and equal protection rights,
but, as discussed below, plaintiff fails to adequately allege any actual due process
or equal protection deprivations upon which to base a conspiracy claim.

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To state a claim for violation of the right to procedural due process,
plaintiff must allege facts showing: “(1) a deprivation of a constitutionally
protected liberty or property interest, and (2) a denial of adequate procedural
protections.” Kildare v. Saenz, 325 F.3d 1078, 1085 (9th Cir. 2003).
“[T]he
Constitution itself does not give rise to a liberty interest in avoiding transfer to
more adverse conditions of confinement.” Wilkinson v. Austin, 545 U.S. 209, 221
(2005). However, state regulations may create a liberty interest in avoiding
restrictive conditions of confinement if those conditions “present a dramatic
departure from the basic conditions of [the inmate’s] sentence.” Sandin v.
Conner, 515 U.S. 472, 485 (1995). Under Sandin, a liberty interest may exist
where placement in administrative segregation “imposes atypical and significant
hardship in the inmate in relation to the ordinary incidents of prison life.” Id. at
484; see Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007) (classification at a
Level IV prison rather than at a Level III prison did not subject Myron to an
atypical and significant hardship); The transfer of a prisoner from one
institution to another is not protected by the Due Process Clause in and of itself,
even where the change of facilities involves a significant modification in
conditions of confinement. Moody v. Daggett, 429 U.S. 78, 88, n. 9 (1976).
Moreover, prisoners have no federally protected interest in their classification
status, see Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987), or in
being housed at a particular institution. Meachum v. Fano, 427 U.S. 215, 224
(1976). See also Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir. 1985) (due process
protections generally do not apply when prison officials change an inmate’s place
of confinement, “even though the degree of confinement may be different and
prison life may be more disagreeable in one institution than in another”). Here,
plaintiff fails to identify a protected interest, so any due process claim must fail.
See Austin, 545 U.S. at 221.

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“The Equal Protection Clause of the Fourteenth Amendment commands
that no State shall ‘deny to any person within its jurisdiction the equal protection
of the laws,’ which is essentially a direction that all persons similarly situated
should be treated alike.” City of Cleburne v. Cleburne Living Center, 473 U.S.
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432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). “To state a §
1983 claim for violation of the Equal Protection Clause, a plaintiff must show that
he was treated in a manner inconsistent with others similarly situated, and that the
defendants acted with an intent or purpose to discriminate against the plaintiff
based upon membership in a protected class.” Thornton v. City of St. Helens, 425
F.3d 1158, 1166-67 (9th Cir. 2005) (internal quotations omitted). Alternatively, a
plaintiff may allege facts showing that he has been intentionally treated
differently from others similarly situated without a rational basis for the
difference in treatment. Village of Willowbrook v. Olech, 528 U.S. 562, 564
(2000) (per curiam); Squaw Valley Development Co. v. Goldberg, 375 F.3d 936,
944 (9th Cir. 2004), overruled on other grounds by Action Apt. Ass’n v. Santa
Monica Rent Control Bd., 509 F.3d 1020, 1025 (9th Cir. 2007). However, this
type of equal protection claim does not arise from state actions that “by their
nature involve discretionary decisionmaking based on a vast array of subjective,
individualized assessments.” Towery v. Brewer, 672 F.3d 650, 660 (9th Cir.
2012) (per curiam) (citing Engquist v. Oregon Dep’t of Agric., 553 U.S. 591, 603
(2008)). Thus, “the existence of discretion, standing alone, cannot be an Equal
Protection violation.” Towery, 672 F.3d at 661 (“Absent any pattern of generally
exercising the discretion in a particular manner while treating one individual
differently and detrimentally, there is no basis for Equal Protection scrutiny under
the class-of-one theory.”). Plaintiff fails to plausibly allege that any defendant
deprived him of equal protection of the laws.

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Finally, plaintiff purports to bring an obstruction of justice claim pursuant
to 42 U.S.C. § 1985(2). Section 1985(2) require a showing of (1) denial of access
to the federal courts, or (2) class-based animus and denial of access to the state
courts. Portman v. County of Santa Clara, 995 F.2d 898, 908-09 (9th Cir. 1993).
“A claim under section 1985(2), part one, is composed of three essential
elements: (1) a conspiracy between two or more persons, (2) to deter a [party,
juror, or] witness by force, intimidation, or threat from attending federal court or
testifying freely in a matter there pending, which (3) causes injury to the
claimant.” Rutledge v. Arizona Bd. of Regents, 859 F.2d 732, 735 (9th Cir. 1988);
see Dooley v. Reiss, 736 F.2d 1392, 1395-96 (9th Cir. 1984) (allegations that
defendants conspired to commit perjury and to conceal evidence failed to state a
claim for relief under section 1985(2) because alleged actions did not influence or
seek to influence claimant by force, intimidation, or threat). Plaintiff fails to
plausibly allege that defendants conspired to deter him from testifying in federal
court proceedings or that any defendant denied him access to state courts because
he was a member of a protected class.
Plaintiff is hereby informed that prisoners have a constitutional right of
access to the courts. Bounds v. Smith, 430 U.S. 817, 828 (1977). Prisoners also
have a right “to litigate claims challenging their sentences or the conditions of
their confinement to conclusion without active interference by prison officials.”
Silva v. Di Vittorio, 658 F.3d 1090, 1103 (9th Cir. 2011). An inmate alleging a
violation of this right must show that he suffered an actual injury. Lewis v. Casey,
518 U.S. 343, 349-51 (1996). That is, the plaintiff must allege that the deprivation
actually injured his litigation efforts, in that the defendant hindered his efforts to
bring, or caused him to lose, an actionable claim challenging his criminal
sentence or conditions of confinement. See id. at 351; Christopher v. Harbury,
536 U.S. 403, 412-15 (2002).
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Plaintiff may proceed only on his retaliation claim against defendants
Angelea, Monroe, Mejia, and Grannis, or he may amend his complaint to attempt
to cure the deficiencies identified above. Plaintiff is not obligated to amend his
complaint.

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Dckt. No. 65 at 2-9.

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As plaintiff himself acknowledges, the second amended complaint is “largely the same”

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as his first amended complaint, and “even more similar” to plaintiff’s original complaint, “which

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the court screened pursuant to § 1915A and ordered to proceed against all defendants on

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December 15, 2009.” Dckt. No. 70. Once plaintiff amended his complaint, however, the initial

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screening order became moot. As set forth above, the court thoroughly screened plaintiff’s first

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amended complaint and informed plaintiff of the numerous deficiencies therein. Plaintiff’s

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second amended complaint fails to correct those deficiencies.

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Accordingly, plaintiff may proceed only on his retaliation claim against defendants

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Angelea, Monroe, Mejia, and Grannis, and the court recommends that all remaining claims and

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defendants be dismissed without leave to amend. See Lopez v. Smith, 203 F.3d 1122, 1129 (9th

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Cir. 2000) (“Under Ninth Circuit case law, district courts are only required to grant leave to

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amend if a complaint can possibly be saved. Courts are not required to grant leave to amend if a

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complaint lacks merit entirely.”).

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Accordingly, it is hereby ORDERED that Clerk shall randomly assign a United States
District Judge to this action.

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Further, it is hereby RECOMMENDED that:

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1. With the exception of the retaliation claim against defendants Angelea, Monroe,

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Mejia, and Grannis, all claims be dismissed from this action for failure to state a claim upon

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which relief may be granted; and

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2. Defendants Angelea, Monroe, Mejia, and Grannis be directed to file, within 30 days

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of any order adopting these findings and recommendations, a response to the amended complaint

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as herein narrowed.

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These findings and recommendations are submitted to the United States District Judge

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

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: January 14, 2013.

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