Sweet v. Knerl

Filing 16

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 7/17/12 ORDERING that the Clerk of the Court shall randomly assigned a United States District Judge to this action; it is RECOMMENDED that plaintiffs amended complaint be dismissed for failure to state a claim and that the Clerk of the Court be directed to close this case. Referred to Judge Kimberly J. Mueller; 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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MICHAEL A. SWEET,

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Plaintiff,
vs.

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No. 2:11-cv-2625 EFB P

S. KNERL,

ORDER AND
FINDINGS AND RECOMMENDATIONS
Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action under 42

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U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28

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U.S.C. § 636(b)(1). After a dismissal pursuant to 28 U.S.C. § 1915A, plaintiff has filed an

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amended complaint.

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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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In order to avoid dismissal for failure to state a claim a complaint must contain more than

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“naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause

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of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words,

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

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Furthermore, a claim upon which the court can grant relief has facial plausibility.

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Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Iqbal, 129 S. Ct. at 1949. When considering whether a complaint states a

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claim upon which relief can be granted, the court must accept the allegations as true, Erickson v.

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Pardus, 127 S. Ct. 2197, 2200 (2007), and construe the complaint in the light most favorable to

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the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

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A pro se plaintiff must satisfy the pleading requirements of Rule 8(a) of the Federal

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Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and plain

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statement of the claim showing that the pleader is entitled to relief, in order to give the defendant

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fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly,

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550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)).

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In the amended complaint, plaintiff alleges that the procedures used by defendant Knerl

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to find plaintiff guilty of possession of dangerous contraband, a disposable razor, violated

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plaintiff’s due process rights. Plaintiff alleges that as a result of being found guilty, he was

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denied good time credits and assessed six behavior credits. Plaintiff’s due process claim is

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premised on the allegation that defendant Knerl did not follow the procedures set forth in section

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3317 of title 15 of the California Code of Regulations. See Am. Compl. (“Dckt. No. 14”).

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In relevant part, section 3317 provides that (1) before documenting the misbehavior of an

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Enhanced Outpatient Program inmate who is suspected of self mutilation or attempted suicide,

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the inmate shall be referred for a mental health evaluation, and (2) that if the mental health
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evaluation determines that it was an actual suicide attempt, the rules violation report shall not be

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written and instead the behavior shall be documented on general chrono. Cal. Code Regs. tit. 15,

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§ 3317.

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According to the allegations in the complaint, plaintiff is an Enhanced Outpatient

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Program inmate, and his mental health assessment noted that his “depressive feelings are worst

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near the anniversary of his mother’s death[, which] contributed to the behavior that led to the

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serious disciplinary charge.” Dckt. No. 14.

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In its initial screening order the court informed plaintiff that his allegations failed to state
a cognizable due process claim. Specifically, the court informed plaintiff of the following:
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). 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). In the context
of a disciplinary proceeding where a liberty interest is at stake, due process
requires that “some evidence” support the disciplinary decision. Superintendent v.
Hill, 472 U.S. 445, 455 (1985). The inmate must also receive: “(1) advance
written notice of the disciplinary charges; (2) an opportunity, when consistent
with institutional safety and correctional goals, to call witnesses and present
documentary evidence in his defense; and (3) a written statement by the factfinder
of the evidence relied on and the reasons for the disciplinary action.” Id. at 454
(citing Wolff, 418 U.S. at 563-67). The complaint is devoid of any facts
demonstrating that he was deprived of due process in the disciplinary proceedings
related to his possession of dangerous contraband.

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Dckt. No. 11 at 4-5. Plaintiff’s amended complaint does not cure the deficiencies identified in

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the court’s initial screening order. Plaintiff claims that he was deprived of the procedures set

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forth in section 3317. However, plaintiff’s allegations show that he received a mental health

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assessment in accordance with section 3317, and his allegations do not demonstrate that the

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mental health assessment resulted in a determination that plaintiff made an actual suicide

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attempt. Rather, plaintiff alleges that the assessment resulted in a finding that plaintiff’s

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depressive feelings may have led to his possession of dangerous contraband. Thus, plaintiff does

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not allege facts demonstrating that section 3317’s procedures even applied to him.
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Moreover, federal due process does require that prison disciplinary proceedings comply

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with the prison’s own regulations. See Walker v. Sumner, 14 F.3d 1415, 1419-20 (9th Cir. 1994)

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(“Walker’s right to due process was violated only if he was not provided with process sufficient

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to meet the Wolff standard.”); see also Wolff v. McDonnell, 418 U.S. 539, 563 (1974) (prisoner

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facing disciplinary measures and whose liberty interest is threatened is entitled to advance

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written notice of the charge against him as well as a written statement of the evidence relied

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upon by prison officials and the reasons for any disciplinary action taken). In the amended

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complaint, plaintiff again fails to include facts demonstrating that the disciplinary proceedings

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lacked constitutionally adequate procedural protections. The amended complaint must therefore

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be dismissed for failure to state a claim.
Despite an opportunity to amend, plaintiff appears to be unable to state a cognizable

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claim for relief, and further leave to amend appears futile. Accordingly, the court should dismiss

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the amended complaint without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir.

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

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

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lacks merit entirely.”); see also Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995) (“[A]

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district court should grant leave to amend even if no request to amend the pleading was made,

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unless it determines that the pleading could not be cured by the allegation of other facts.”).

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Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall randomly
assigned a United States District Judge to this action.

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Further, IT IS HEREBY RECOMMENDED that plaintiff’s amended complaint be

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dismissed for failure to state a claim and that the Clerk of the Court be directed to close this case.

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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: July 17, 2012.

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