Gupta v. Cate et al

Filing 7

ORDER signed by Magistrate Judge Gregory G. Hollows on 9/11/2012 ORDERING that plaintiff's 5 request to proceed IFP is GRANTED; plaintiff to pay the $350.00 filing fee with an initial partial filing in accordance with the concurrent ord er to the Warden of North Fork Correctional Facility; plaintiff's claims of a due process violation in the imposition of the "P-code" classification status upon him are DISMISSED with leave to file an amended complaint within 28 days; upon filing an amended complaint or expiration of time allowed therefor, the court will make futher orders for service of process upon some or all of the defendants. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RAJ CHRISTOPHER GUPTA,

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Plaintiff,

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No. 2:12-cv-1693 GGH P

vs.

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MATTHEW CATE, et al.,

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Defendants.

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ORDER
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Plaintiff is a state prisoner proceeding pro se. He seeks relief pursuant to 42

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U.S.C. § 1983 and has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma

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

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§ 636(b)(1).

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Because plaintiff had not filed an in forma pauperis affidavit or paid the required

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filing, see 28 U.S.C. §§ 1914(a), 1915(a), plaintiff was directed, within thirty days, by order filed

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on July 17, 2012, either to provide an affidavit in support of his request to proceed in forma

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pauperis or to submit the appropriate filing fee.

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Plaintiff submitted, on July 23, 2012, a declaration that makes the showing

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required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be

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granted.
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Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28

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U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee

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in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will

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direct the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account

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and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly

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payments of twenty percent of the preceding month’s income credited to plaintiff’s prison trust

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account. These payments will be forwarded by the appropriate agency to the Clerk of the Court

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each time the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28

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U.S.C. § 1915(b)(2).

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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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A complaint must contain more than a “formulaic recitation of the elements of a

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cause of action;” it must contain factual allegations sufficient to “raise a right to relief above the

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speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007).

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“The pleading must contain something more...than...a statement of facts that merely creates a
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suspicion [of] a legally cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal

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Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). “[A] complaint must contain sufficient

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factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

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v. Iqbal, 566 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127

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S.Ct. 1955). “A claim has facial plausibility when the plaintiff pleads factual content that allows

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the court to draw the reasonable inference that the defendant is liable for the misconduct

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alleged.” Id.

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In reviewing a complaint under this standard, the court must accept as true the

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allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S.

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738, 740, 96 S.Ct. 1848 (1976), construe the pleading in the light most favorable to the plaintiff,

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and resolve all doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct.

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1843 (1969).

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The complaint states a colorable claim for relief against defendants Matthew Cate,

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Scott Kernan, Terri McDonald, George Giurbino, Fred Figueroa, Roger Blackshear, R. Barton,

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A. Perez, Dalinda Harman,1 D. Huser, M. Williams, K. Pool and J.D. Lozano on his Eighth

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Amendment claim of a deprivation of outdoor exercise since October 11, 2011, and on his claim

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of a violation of his Fourteenth Amendment equal protection rights by a discriminatory lockdown

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policy, pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b).

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Plaintiff, a state prisoner, housed in an out-of-state facility, claims that he has

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been subjected to a lockdown since October 11, 2011, depriving him of outdoor exercise and has

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further alleged that he has been subjected to a prolonged lockdown predicated solely on his

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ethnic/racial identity. To this extent, plaintiff’s claims are colorable. See Complaint.

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However, plaintiff also alleges a due process violation by imposition of a “Pcode” classification by defendants Walls, Roacho and Brooks pursuant to a unit classification

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Also alternatively spelled by plaintiff as “Harmon.”
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annual review. Plaintiff claims that he has thereby been subjected to an “atypical and significant

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hardship in relation to the ordinary incidents of prison life,” by having been thereby deprived of a

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transfer to a fire camp. Plaintiff claims that he was wrongfully subjected to this classification

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because he was convicted in 2010 of a nonserious/nonviolent drug offense and because the basis

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for the “illegitimate P-Code for violence exclusion” was a twenty-year old (1992/1993) prior

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conviction which was stricken by the trial judge at sentencing his August 2010 sentencing.

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Plaintiff claims that he has not been provided a copy of three one-page documents in his C-file,

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including the Aug. 20, 2010, Superior Court abstract of judgment and minute order, in violation

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of a prison regulation and depriving him of his ability to present his case for fire camp housing.

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He also alleges that defendants Walls and Roacho lied in the Sept. 14, 2011, UCC classification

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chrono in saying that he (plaintiff) “was in agreement with this committee’s decision.” Plaintiff

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concedes on the other hand that “defendants could reply on the aggravated circumstances of [the]

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1992 case as a basis for imposing a VIO P-code upon plaintiff....” plaintiff contends that the

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“aggravated nature of a crime does not in and of itself provide some evidence of current

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dangerousness....” Plaintiff points to a number of programs in which he has participated in and

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completed, such as anger management, subsequent to the 1992 case. Complaint, pp. 33-41.

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A prisoner does not have a constitutional right to a particular classification status.

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Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987) (quoting Moody v. Daggett, 429

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U.S. 78, 88 n. 9, 97 S.Ct. 274, 279 (1976), wherein the Supreme Court, in a footnote, explicitly

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rejected a claim that “prisoner classification and eligibility for rehabilitative programs in the

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federal system” invoked due process protections). Thus, in general, prison officials’ housing and

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classification decisions do not give rise to federal constitutional claims encompassed by the

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protection of liberty and property guaranteed by the Fifth and Fourteenth Amendments. See

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Board of Regents v. Roth, 408 U.S. 564, 569, 92 S. Ct. 2701 (1972). Nor does the Constitution

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guarantee a prisoner placement in a particular prison or protect an inmate against being

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transferred from one institution to another. Meachum v. Fano, 427 U.S. 215, 223-225, 96 S. Ct.
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2532, 2538 (1976). See Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir.1985) (prison authorities

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may change a prisoner’s “place of confinement even though the degree of confinement may be

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different and prison life may be more disagreeable in one institution than in another” without

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violating the prisoner’s due process rights); Hanrahan v. Lane, 747 F.2d 1137, 1140-41 (7th

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Cir.1984) (allegation that prison guard planted false evidence in retaliation for prisoner’s failure

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to pay extortion demand fails to state section 1983 claim so long as procedural due process was

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provided). Nor is it enough for plaintiff to allege that being denied a “P-code” classification in

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and of itself subjects him to “an atypical and significant hardship.” Plaintiff’s claims of a due

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process violation in the imposition of the “P-code” classification status upon him against

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defendants Walls, Vaca, Brooks, Harman, Huser, Roacho, Williams, Pool, Lozano and Cate will

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be dismissed. Plaintiff will, however, be granted leave to amend.

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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the

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conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See

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Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the complaint must allege in specific terms

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how each named defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless

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there is some affirmative link or connection between a defendant’s actions and the claimed

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deprivation. Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598 (1976); May v. Enomoto, 633 F.2d

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164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore,

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vague and conclusory allegations of official participation in civil rights violations are not

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sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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In addition, plaintiff is informed that the court cannot refer to a prior pleading in

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order to make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. This is because, as a

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general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375

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F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no

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longer serves any function in the case. Therefore, in an amended complaint, as in an original
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complaint, each claim and the involvement of each defendant must be sufficiently alleged.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request to proceed in forma pauperis is granted;

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action.

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Plaintiff is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.

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§ 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the

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Warden of North Fork Correctional Facility filed concurrently herewith.

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3. Plaintiff’s claims of a due process violation in the imposition of the “P-code”
classification status upon him are dismissed for the reasons discussed above, with leave to file an

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amended complaint within twenty-eight days from the date of service of this Order. Failure to

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file an amended complaint will result in a recommendation that these defendants and/or claims

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be dismissed from this action.

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4. Upon filing an amended complaint or expiration of the time allowed therefor,

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the court will make further orders for service of process upon some or all of the defendants.

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DATED: September 11, 2012

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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GGH:009
gupt1693.b1

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