Cyprian v. Givens et al

Filing 96

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 6/26/12 RECOMMENDING that Plaintiffs federal claims be dismissed for failure to state a claim upon which relief may be granted; Plaintiffs state law claims be dismissed without prejudice; and this action be dismissed without leave to amend. Referred to Judge John A. Mendez; Objections to F&R due within 14 days.(Dillon, 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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LAWRENCE CYPRIAN,

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Plaintiff,

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No. 2:09-cv-2704 JAM JFM (PC)

vs.

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DERRICK GIVENS, et al.,

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Defendants.

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FINDINGS AND RECOMMENDATIONS
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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to

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42 U.S.C. § 1983. By order filed January 19, 2012, defendants’ motion to dismiss plaintiff’s

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third amended complaint was granted and plaintiff was granted a period of thirty days to file a

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fourth amended complaint raising only the equal protection and/or due process claims arising

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from the alleged issuance of false disciplinary charges previously raised in his third amended

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complaint. After receiving an extension of time, on April 25, 2012, plaintiff filed a proposed

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fourth amended complaint, a supplemental statement of facts, a declaration, and a document

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styled “Plaintiff Lawrence Cyprian, Files Criminal Action Complaint to Redress Criminal Wrong

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Committed by Two (2) Defendants in this Cause of Action.” The court construes these

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documents together as plaintiff’s proposed fourth amended complaint.

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STANDARDS
The court is required to screen complaints brought by prisoners seeking relief

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

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§ 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised

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claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be

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granted, or that seek monetary relief from a defendant who is immune from such relief. 28

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U.S.C. § 1915A(b)(1),(2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28

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(9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989); Franklin, 745 F.2d at 1227.

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Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and

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plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355

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U.S. 41, 47 (1957)). In order to survive dismissal for failure to state a claim a complaint must

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contain more than “a formulaic recitation of the elements of a cause of action;” it must contain

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factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic,

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id. However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘“give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.”’” Erickson

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v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200 (2007) (quoting Bell, 127 S.Ct. at 1964, in turn

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quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In reviewing a complaint under this

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standard, the court must accept as true the allegations of the complaint in question, Erickson, id.,
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and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416

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U.S. 232, 236 (1974).

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ALLEGATIONS OF THE FOURTH AMENDED COMPLAINT

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In the proposed fourth amended complaint and associated documents, plaintiff

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makes the following allegations. On January 14, 2009, defendants Givens and Rogers filed a

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false prison disciplinary report charging plaintiff with possession of an inmate manufactured

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weapon. Fourth Amended Complaint, filed April 25, 2012 (FAC), at 3. Defendant Providence

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was not impartial when adjudicating the disciplinary charges. Id. Defendants Mitchell, Flores

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and Dickinson failed to fully investigate the charges in spite of contentions raised by plaintiff that

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the anonymous note on which the charges were based had been forged and the evidence

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fabricated by defendants Givens and Rogers. Id. at 3-4.

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Defendant Givens perjured himself by testifying at a criminal trial on the charges

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that the door stopper in which the weapon was found was five inches in diameter, and then

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testifying at the disciplinary hearing that it was three inches in diameter. Supplemental

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Statement of Facts, filed April 25, 2012, at 3-4. At the start of a disciplinary hearing on the

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charges on February 28, 2009, defendant Providence stated that defendant Givens would not lie.

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Id. at 4. Defendant Providence also accepted a “contradictory statement” from defendant Rogers.

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Id. at 5. Defendant Providence also failed to give plaintiff a complete report of the incident

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leading to the charges, including “the questions asked and responses given.” Id. Moreover,

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defendant Providence’s final report did not state that the weapon was found in a door stopper but,

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instead, that the weapon had been found in plaintiff’s property. Id. Plaintiff subsequently raised

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these issues with defendants Flores and Mitchell, who did nothing to remedy the problem. Id.

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Plaintiff was found guilty at two disciplinary hearings, but was “finally cleared” at the third

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hearing, when he was found not guilty and the charge was dismissed. Id. at 8. Plaintiff was also

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criminally prosecuted for possession of a weapon; the charges were dismissed after the jury

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returned a verdict 9 to 3 in favor of acquittal. Id.
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Based on the foregoing, plaintiff claims that his rights to due process and equal
protection were violated, and he also raises pendent state law claims.

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ANALYSIS
An allegation that a false disciplinary report has been filed can state a claim for a

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procedural due process violation if the plaintiff alleges that the procedural protections outlined in

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Wolff v. McDonnell, 418 U.S. 539 (1974) were not met in connection with prosecution of the

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disciplinary charges and/or that the disciplinary conviction was not supported by “some

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evidence.” See, e.g., Black v. Lane, 22 F.3d 1395, 1401-02 (7th Cir. 1994). Conversely, a

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procedural due process claim arising out the filing of a false disciplinary report fails if the Wolff

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protections were afforded to the inmate at a disciplinary hearing. See Freeman v. Rideout, 808

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F.2d 949 (2nd Cir. 1986), cert. denied, 485 U.S. 982 (1988) (inmates procedural due process

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rights are not violated by false charges if inmate is granted a hearing on the charges and an

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opportunity to rebut them). The protections under Wolff include (1) written notice of the charges

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at least twenty-four hours prior to the hearing; (2) the right to appear in person before an

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impartial hearing body; (3) the right to call witnesses and to present documentary evidence; and

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(4) a written statement of reasons for the disciplinary action taken. Black, at 1402 (citing Cain v.

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Lane, 857 F.2d 1139, 1145 (7th Cir. 1988) in turn citing Wolff).

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Here, plaintiff was ultimately acquitted of the disciplinary charges at a third

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disciplinary hearing. It is clear from the allegations of the fourth amended complaint and

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associated documents that the procedural requirements of the due process clause were satisfied in

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connection with the extended disciplinary proceedings on the charges. For that reason, plaintiff

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has failed to state a cognizable claim that his right to due process was violated in connection with

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the prison disciplinary charges.

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“The Equal Protection Clause of the Fourteenth Amendment commands that no

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State shall ‘deny to any person within its jurisdiction the equal protection of the laws, which is

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essentially a direction that all persons similarly situated should be treated alike.” City of
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Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457

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U.S. 202, 216 (1982). Plaintiff has not alleged any facts in the fourth amended complaint that

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suggest that he was treated differently from otherwise similarly situated inmates. For this reason,

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he has failed to state a cognizable equal protection claim. Moreover, plaintiff has twice been

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granted leave to amend to cure deficiencies in his pleading, including in his equal protection

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claim, and he has failed to cure the deficiencies in his assertion that the alleged events violated

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his right to equal protection. For that reason, the court finds plaintiff should not be granted any

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further opportunity to amend this claim. See McGlinchy v. Shell Chemical Co., 845 F.2d 802,

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809-10 (9th Cir. 1988) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).

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Finally, as noted above, plaintiff has raised pendent state law claims. Because

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plaintiff has failed to state a cognizable federal claim for relief, the court should decline to

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exercise supplemental jurisdiction over plaintiff’s pendent state law claims. See 28 U.S.C. §

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1367(c)(3).

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For all of the foregoing reasons, this court finds that plaintiff’s fourth amended

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complaint fails to state a federal claim on which relief may be granted, plaintiff’s state law claims

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should be dismissed without prejudice, that this action should be dismissed without leave to

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amend.

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In accordance with the above, IT IS HEREBY RECOMMENDED that:

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1. Plaintiff’s federal claims be dismissed for failure to state a claim upon which

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relief may be granted;

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2. Plaintiff’s state law claims be dismissed without prejudice; and

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3. This action be dismissed without leave to amend.

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These findings and recommendations are submitted to the United States District

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

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days 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.” Any response to the

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objections shall be filed and served within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: June 26, 2012.

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