Mahan v. Viles, et al.,

Filing 14

ORDER to SHOW CAUSE signed by Magistrate Judge Craig M. Kellison on 01/11/12 ordering plaintiff shall show cause in wrting within 30 days of the date of this order, why this action should not be dismissed for failure to state a claim. (Plummer, M)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SAMATY MAHAN, 12 13 14 15 16 17 18 19 No. CIV S-11-2723-CMK-P Plaintiff, vs. ORDER TIM VIRGA, et al., Defendants. / Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff’s complaint (Doc. 4). The court is required to screen complaints brought by prisoners seeking relief 20 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or 22 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 23 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, 24 the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain 25 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 26 This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 1 1 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied 2 if the complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon 3 which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must 4 allege with at least some degree of particularity overt acts by specific defendants which support 5 the claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is 6 impossible for the court to conduct the screening required by law when the allegations are vague 7 and conclusory. 8 9 I. PLAINTIFF’S ALLEGATIONS 10 Plaintiff names the following as defendants: Tim Virga; T. Viles; I. O’Brien; L. 11 Johnson; J. Gaskin; J. Mejiea; H. Ensley; D. Sims; and M. Holz. Plaintiff claims that he was 12 falsely accused of participating in a riot on January 19, 2010, between Hispanic and Black 13 inmates. Plaintiff was sentenced to a term in administrative segregation. He states that during 14 this sentence, he had limited access to visits, phone calls, yard programs, etc. Petitioner next 15 complains about a series of prison transfers and appears to indicate that defendants improperly 16 denied his requests to be transferred to a particular institution. He also states that, during his 17 time in administrative segregation, he was assigned to appear before a classification committee 18 every 90 days. In conclusion, plaintiff states: 19 In result defendant’s actions, plaintiff was deprived from family visits, phone calls at the time when needed of tragic situation. Plaintiff felt bluntly manipulated, neglected, punished without reason. Plaintiff was departed from the ordinary incidents of prison life. The cruel and unusual punishment. The mental and emotional distress. The reasonability [sic] to uphold my constitutional protected rights. 20 21 22 23 For his only claim for relief, plaintiff alleges that defendants violated his rights to due process 24 “for bluntly depriving me release after period of time was known.” It is unclear if plaintiff is 25 referring to his release from prison, or from administrative segregation. 26 /// 2 1 II. DISCUSSION 2 The Due Process Clause protects prisoners from being deprived of life, liberty, or 3 property without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to 4 state a claim of deprivation of due process, a plaintiff must allege the existence of a liberty or 5 property interest for which the protection is sought. See Ingraham v. Wright, 430 U.S. 651, 672 6 (1977); Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972). Liberty interests can arise both from 7 the Constitution and from state law. See Hewitt v. Helms, 459 U.S. 460, 466 (1983); Meachum 8 v. Fano, 427 U.S. 215, 224-27 (1976); Smith v. Sumner, 994 F.2d 1401, 1405 (9th Cir. 1993). In 9 determining whether the Constitution itself protects a liberty interest, the court should consider 10 whether the practice in question “. . . is within the normal limits or range of custody which the 11 conviction has authorized the State to impose.” Wolff, 418 U.S. at 557-58; Smith, 994 F.2d at 12 1405. Applying this standard, the Supreme Court has concluded that the Constitution itself 13 provides no liberty interest in good-time credits, see Wolff, 418 U.S. at 557; in remaining in the 14 general population, see Sandin v. Conner, 515 U.S. 472, 485-86 (1995); in not losing privileges, 15 see Baxter v. Palmigiano, 425 U.S. 308, 323 (1976); in staying at a particular institution, see 16 Meachum, 427 U.S. at 225-27; or in remaining in a prison in a particular state, see Olim v. 17 Wakinekona, 461 U.S. 238, 245-47 (1983). 18 In determining whether state law confers a liberty interest, the Supreme Court has 19 adopted an approach in which the existence of a liberty interest is determined by focusing on the 20 nature of the deprivation. See Sandin v. Connor, 515 U.S. 472, 481-84 (1995). In doing so, the 21 Court has held that state law creates a liberty interest deserving of protection only where the 22 deprivation in question: (1) restrains the inmate’s freedom in a manner not expected from the 23 sentence; and (2) “imposes atypical and significant hardship on the inmate in relation to the 24 ordinary incidents of prison life.” Id. at 483-84. 25 /// 26 /// 3 1 In this case, plaintiff complains that he was subjected to limited visits, phone 2 calls, etc., during his placement in administrative segregation. Such restraints are certainly to be 3 expected following a disciplinary conviction for participating in a prison riot.1 Nor do such 4 restraints amount to any hardship which is atypical and significant. To the contrary, the restraints 5 complained of are typical and rather insignificant in relation to ordinary prison life. 6 7 III. CONCLUSION 8 Because it does not appear possible that the deficiencies identified herein can be 9 cured by amending the complaint, plaintiff is not entitled to leave to amend prior to dismissal of 10 the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). 11 Plaintiff shall show cause in writing, within 30 days of the date of this order, why this action 12 should not be dismissed for failure to state a claim. Plaintiff is warned that failure to respond to 13 this order may result in dismissal of the action for the reasons outlined above, as well as for 14 failure to prosecute and comply with court rules and orders. See Local Rule 110. 15 IT IS SO ORDERED. 16 17 DATED: January 11, 2012 18 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 1 26 Plaintiff does not claim that his due process rights were violated with respect to the disciplinary hearing. 4

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