Smith v. California State Prison Sacramento, et al

Filing 16

ORDER signed by Magistrate Judge Allison Claire on 11/21/12 ORDERING that Counts Four, Five, Six and Seven be dismissed; and that defendants A. Deems; D. Winslow; Wedell; C. Keems; M. Borges; K. Kostecky; D. Foston; S. Hernandez; Hamad; Gordon; Couch; T. Virga; Hontz; Sgt. Haring; Off. Karelas; Dr. Hamkar; Off. Ahrens; Ms. Gordon; Ms. Hamad; Mr. Schroeder; Mr. Macomber; and Lt. B. Johnson be dismissed from this action without prejudice.(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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BERNARD L. SMITH,

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Plaintiff,

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vs.
CALIFORNIA STATE PRISON SACRAMENTO, et al.
Defendants.

ORDER
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No. 2:12-cv-0024 AC P

Plaintiff is a state prisoner who is proceeding pro se and in forma pauperis.

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Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, and has consented to the jurisdiction of the

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undersigned. See Doc. No. 4.

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By order filed April 11, 2012, the court dismissed plaintiff’s complaint with

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leave to amend. Plaintiff has now filed an amended complaint. By separate order, has identified

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the colorable claims in plaintiff’s amended complaint, and directed service on defendants V.

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Mini, A. Maserut, T. Woods, Sgt. Baker, Off. Harvey, and J. Bal.

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In this order, the court will direct that the remaining counts against the remaining

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defendants be dismissed, because plaintiff has failed to cure all the deficiencies outlined in the

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April 11, 2012 order. In particular, the following counts should be dismissed in their entirety:

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Counts Four; Five; Six; and Seven. As to counts One, Two, and Three, portions of these counts
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are not colorable, as described below, and will be dismissed.

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The following defendants, named in the original complaint, are not named in the

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amended complaint and will be dismissed: A. Deems; D. Winslow; Wedell; C. Keems; M.

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Borges; K. Kostecky; D. Foston; S. Hernandez; Hamad; Gordon; Couch; and T. Virga. The

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following defendants are named in the amended complaint, and will also be dismissed, as no

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counts remain against them: Hontz; Sgt. Haring; Off. Karelas; Dr. Hamkar; Off. Ahrens; Ms.

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Gordon; Ms. Hamad; Mr. Schroeder; Mr. Macomber; and Lt. B. Johnson.1

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In particular, as to Count One, the court has determined that plaintiff has stated a
colorable Eighth Amendment claim against defendants Harvey, Baker, Woods, Maserut, and

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Mini. However, plaintiff also raises unrelated claims against other defendants. Plaintiff claims

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that Mr. Schroeder, Mr. Macomber, and Mr. Hontz used deceptive practices to make plaintiff

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sign off on an enemy, but does not explain how, if at all, this was harmful to plaintiff. Plaintiff

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additionally alleges that Officer Ahrens used manipulation to get plaintiff moved into a building

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where he was later attacked, but plaintiff does not describe the manipulation or when it occurred.

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This claim appears to be a re-characterization of plaintiff’s claim, made in his original complaint,

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that Officer Ahrens subjected plaintiff to racial conduct and told plaintiff “I got you moved.”

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See Doc. No. 7 at 7. As it is unclear from the complaint how these unrelated defendants caused

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plaintiff to be harmed, or when, plaintiff’s Eighth Amendment claims against these unrelated

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defendants will be dismissed.
As to Count Two, the court has determined that plaintiff has stated a colorable

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claim against defendant Bal for violation of his Eighth Amendment rights to adequate medical

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care. To the extent plaintiff sought to name any other defendants under this claim, he has failed

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to do so, as he only identifies them as “medical staff” or “medical officers,” which is insufficient

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Plaintiff identifies California State Prison-Sacramento as the only defendant in his
caption, but does not include the prison in his list of defendants. See Doc. No. 1 at 1, 2. It is
therefore unclear to the court whether plaintiff intends to name the prison as a defendant.
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to allow the court to direct service.
As to Count Three, the court has determined that the amended complaint states a

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colorable claim against defendant Mini. However, plaintiff’s allegations against Mr. Tim Virga,

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who is not named as a defendant, and Officer Karelas are not colorable. Plaintiff claims that

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Virga violated his substantive due process rights by including in an appeal decision a statement

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about the date upon which an ordered investigation was completed. Plaintiff also claims that

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Officer Karelas violated his “objective due process rights” when he did not return to plaintiff to

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complete the ordered investigation. Plaintiff seeks expungement of three separate disciplinary

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violations. Assuming that these claims can be raised in an action under 42 U.S.C.

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§ 1983, plaintiff’s claims against Virga and Karelas are not colorable, as he has not articulated a

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federal due process right violated by either defendant’s behavior.

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As to Count Four, plaintiff alleges that, as an HIV prisoner, he is entitled to have

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a single cell under the Americans with Disabilities Act. However, he has failed to identify a

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defendant responsible for the alleged violation, instead claiming that “all CSP-Sac prison

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officials” are obligated to protect him. Because plaintiff does not identify a responsible

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individual, this count must be dismissed.

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As to Count Five, plaintiff asks this court to order his immediate release because,

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under recent state law, he may be entitled to additional “half-time” credits since his third strike

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may not be a “violent crime.” As noted in the court’s April 11, 2012 decision, this claim is not

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related to any of the other incidents identified in the complaint. Moreover, it appears to be more

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appropriately raised in a petition for habeas corpus, pursuant to 28 U.S.C. § 2254, after plaintiff

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has exhausted any state habeas proceedings.

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As to Count Six, plaintiff claims that he has been given an “R” suffix even though

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he was not convicted of a sex crime. Again, as noted in the April 11, 2012 order, it is not

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apparent how this claim is related to the other incidents described in plaintiff’s complaint.

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Moreover, while plaintiff claims that he was given the suffix because he is “challenging some of
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the prisons and staff in condition and conduct,” he does not identify who might be responsible

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for the retaliation. Absent such basic information, the claim cannot proceed.

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As to Count Seven, plaintiff alleges that prison officials are infringing his right to

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invest. Again, as noted in the April 11, 2012 order, this claim is unrelated to any other raised by

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the plaintiff, and is additionally raised against different defendants. Moreover, it is frivolous, as

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plaintiff has no right under the First Amendment to invest or to have electronic communication

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via iPad, cell phone, laptop or email. Moreover, plaintiff’s claims against defendants Gordon

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and Hammad are not colorable, as plaintiff has no right to “rehabilitation, success and hard work

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under the Fourteenth Amendment.”.

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Accordingly, IT IS HEREBY ORDERED that, for the reasons given above and in

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the court’s April 11, 2012 order, Counts Four, Five, Six and Seven be dismissed; and that

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defendants A. Deems; D. Winslow; Wedell; C. Keems; M. Borges; K. Kostecky; D. Foston; S.

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Hernandez; Hamad; Gordon; Couch; T. Virga; Hontz; Sgt. Haring; Off. Karelas; Dr. Hamkar;

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Off. Ahrens; Ms. Gordon; Ms. Hamad; Mr. Schroeder; Mr. Macomber; and Lt. B. Johnson be

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dismissed from this action without prejudice. See Local Rule 110; Fed. R. Civ. P. 41(b).

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DATED: November 21, 2012

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/s/
ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE

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ggh:rb
smit0024.B3

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