Pelaske v. Khoronov et al
Filing
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ORDER signed by Magistrate Judge Kendall J. Newman on 5/25/11 ORDERING that 6 FINDINGS AND RECOMMENDATIONS are VACATED; Plaintiffs amended complaint filed May 9, 2011 is dismissed with 30 days to file a second amended complaint. (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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JONOTHAN EDWIN PELASKE,
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Plaintiff,
No. 2: 11-cv-0757 KJM KJN P
vs.
MICHAEL KHORONOV, et al.,
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Defendants
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ORDER
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Plaintiff is proceeding without counsel or pro se, with a civil rights action
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pursuant to 42 U.S.C. § 1983. On March 25, 2011, the undersigned dismissed plaintiff’s
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complaint with thirty days leave to file an amended complaint. Thirty days has passed and
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plaintiff did not file an amended complaint. Accordingly, on May 4, 2011, the undersigned
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recommended that this action be dismissed.
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On May 9, 2011, plaintiff filed an amended complaint. On May 18, 2011,
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plaintiff filed objections to the findings and recommendations. Good cause appearing, the
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findings and recommendations are vacated and the undersigned considers the amended
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complaint.
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In the amended complaint, plaintiff complains about conditions at the Shasta
County Jail where he is incarcerated. Plaintiff seeks injunctive relief only. It is unclear whether
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plaintiff is a pretrial detainee or parolee. The undersigned considers plaintiff as a pretrial
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detainee for purposes of this screening order.
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Plaintiff first alleges that jail officials have enacted a policy to prevent inmates at
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the jail from filing citizen complaints under California Penal Code § 832.5 and the First
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Amendment. Inmates have a fundamental right of access to the courts. Lewis v. Casey, 518 U.S.
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343, 346 (1996). The right is limited to direct criminal appeals, habeas petitions and civil rights
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actions filed pursuant to 42 U.S.C. § 1983. Id. at 354. The right of access to the courts does not
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include the right to file a citizens complaint in state court. In addition, plaintiff does not claim
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that jail officials have prevented him from filing civil rights actions pursuant to 42 U.S.C. §
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1983. For these reasons, this claim is dismissed as legally frivolous.
Plaintiff alleges that he was placed in disciplinary segregation after being found
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guilty of rules violations. Plaintiff alleges that during these hearings, he was not allowed to call
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witnesses and the rulings were not “properly decided.”
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The imposition of disciplinary segregation or other sanctions as punishment for a
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pretrial detainee’s violation of jail rules and regulations cannot be imposed without the
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procedural due process requirements established by the Supreme Court in Wolff v. McDonnell,
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418 U.S. 539 (1974). See Mitchell v. Dupnik, 75 F.3d 517, 523-26 (9th Cir. 1996). Those
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procedural protections required by Wolff include advance written notice of the charges, no less
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than twenty-four hours to prepare for the disciplinary hearing, a written statement by the
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fact-finders of the evidence relied on and the reasons for the disciplinary action taken, a limited
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right to call witnesses and present documentary evidence at the hearing, and a limited right to
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receive assistance from a fellow inmate or correctional staff. See Wolff, 418 U.S. at 564-70.
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Plaintiff does not describe any of the disciplinary hearings he is challenging where
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he was denied witnesses. Without more specific information regarding the at-issue hearings, the
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undersigned cannot determine whether plaintiff has stated a colorable claim for relief. Because
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plaintiff’s claim alleging due process violations at his disciplinary hearings is vague and
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conclusory, it is dismissed with leave to amend.
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Plaintiff alleges that while housed in disciplinary segregation, he is only allowed
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out of his cell for thirty minutes a day every other day for up to thirty days and allowed three
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hours of outdoor exercise once a week. Plaintiff also alleges that he does not have access to
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television or radio while housed in disciplinary segregation. Plaintiff also alleges that he is
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forced to sleep on an outdated, half inch thick mattress while housed in disciplinary segregation.
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Plaintiff also alleges that he lost two months of visitation after being found guilty of rules
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violations.
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Pretrial detainees may not be confined in conditions amounting to punishment.
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See Bell v. Wolfish, 441 U.S. 520, 538-39 (1979). “A condition or restriction that is reasonably
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related to a legitimate governmental objective . . . does not, without more, amount to
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“punishment.” Id., at 539. Jail officials must maintain order in the jail facility, and may impose
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reasonable disciplinary measures in response to violation of jail rules and regulations. See Id., at
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540, 546; see also, Mitchell v. Dupnik, 75 F.3d 517, 524-25 (9th Cir. 1996).
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Plaintiff does not allege for how long he was housed in disciplinary segregation.
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Without this information, the undersigned cannot determine whether plaintiff’s claims
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challenging the conditions of disciplinary segregation are colorable. For example, if plaintiff was
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placed in disciplinary segregation for a few days, without more the undersigned would not find
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that plaintiff had stated a colorable claim for relief. In addition, plaintiff must describe the rules
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violations on which the disciplinary segregation terms were imposed. For these reasons,
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plaintiff’s claims challenging the conditions of disciplinary segregation are dismissed with leave
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to amend.
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Plaintiff’s claim alleging loss of visitation for two months appears separate from
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his claims challenging the conditions of disciplinary segregation. In other words, plaintiff does
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not appear to claim that he was placed in disciplinary segregation for two months. In order to
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determine whether plaintiff’s allegations regarding the loss of visitation state a colorable claim
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for relief, plaintiff must describe the rules violation convictions that resulted in the loss of
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visitation. Plaintiff must also describe the amount of time jail officials ordered that he be
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deprived of visitation for each separate conviction.
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As relief, plaintiff requests that defendants be ordered to provide him with a
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Kosher diet because he is Jewish. Plaintiff also requests that defendants be ordered to hire a
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Rabbi. Plaintiff does not allege, however, that defendants have denied his requests for a Kosher
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diet or access to a Rabbi. For these reasons, plaintiff’s request for a Kosher diet and access to a
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Rabbi is not well supported.
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Accordingly, IT IS HEREBY ORDERED that:
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1. The findings and recommendations filed May 4, 2011 are vacated;
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2. Plaintiff’s amended complaint filed May 9, 2011 is dismissed with thirty days
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to file a second amended complaint; failure to file a second amended complaint within that time
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will result in a recommendation of dismissal of this action.
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DATED: May 25, 2011
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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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pel757.ame
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