Morris v. Mini et al

Filing 26

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 2/25/2016 RECOMMENDING that defendant's 21 unopposed motion to dismiss be granted leave to file an amended complaint in order to attempt to cure the defects noted in these findings and recommendations. Referred to Judge Troy L. Nunley; Objections due within 20 days. (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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LEON E. MORRIS,

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Plaintiff,
vs.

FINDINGS AND RECOMMENDATION

V. MINI, et al.
Defendants.

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No. 2:12-cv-1774-TLN-CMK

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42

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U.S.C. § 1983. Pending before the court is defendants’ motion to dismiss (Doc. 21). Plaintiff

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asked for, and was granted, additional time in which to respond. However, no opposition to the

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motion was ever received by the court.

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I.

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This action proceeds on plaintiff’s complaint (Doc. 1) against three defendants,

BACKGROUND

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Cannedy, Mini and Turner. Plaintiff alleges that the defendants violated his rights in connection

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with a Rules Violation Report and hearing thereon. Specifically he claims he was given a false

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Rules Violation Report (RVR) 115, which was used to take away his coping devises, leading to
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an attempted suicide. Reading the complaint broadly, plaintiff alleges defendant Turner and

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Mini issued falsified RVRs, and defendant Cannedy failed to provide a fair hearing on the false

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reports.

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II.

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Defendants filed the pending motion to dismiss on the basis that plaintiff fails to

MOTION TO DISMISS

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state a claim. Defendant argues that plaintiff’s allegations are insufficient to state a claim.

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Plaintiff has not filed an opposition to the motion. Pursuant to Local Rule 230(l), the failure to

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file an opposition to the motion may be deemed a waiver of any opposition to the granting of the

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motion.
In considering a motion to dismiss, the court must accept all allegations of

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material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The

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court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer

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v. Rhodes, 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S.

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738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All

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ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen,

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395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual

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factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50

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(2009). In addition, pro se pleadings are held to a less stringent standard than those drafted by

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lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972).

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Rule 8(a)(2) requires only “a short and plain statement of the claim showing that

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the pleader is entitled to relief” in order to “give the defendant fair notice of what the . . . claim is

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and the grounds upon which it rests.” Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007)

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(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for

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failure to state a claim under Rule 12(b)(6), a complaint must contain more than “a formulaic

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recitation of the elements of a cause of action;” it must contain factual allegations sufficient “to
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raise a right to relief above the speculative level.” Id. at 555-56. The complaint must contain

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“enough facts to state a claim to relief that is plausible on its face.” Id. at 570. “A claim has

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facial plausibility when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at

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1949. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more

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than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S.

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at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability,

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it ‘stops short of the line between possibility and plausibility for entitlement to relief.” Id.

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(quoting Twombly, 550 U.S. at 557).

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In deciding a Rule 12(b)(6) motion, the court generally may not consider materials

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outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998);

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Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1)

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documents whose contents are alleged in or attached to the complaint and whose authenticity no

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party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question,

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and upon which the complaint necessarily relies, but which are not attached to the complaint, see

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Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials

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of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir.

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1994).

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Finally, leave to amend must be granted “[u]nless it is absolutely clear that no

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amendment can cure the defects.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per

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curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc).

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Here, defendants argue that plaintiff fails to plead sufficient facts to allege any

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specific violation, and fails to specify what legal theory he is proceeding under. Defendants

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contend that while plaintiff complains about his disciplinary hearing and the RVR, he fails to

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allege what rights have been violated, or provide sufficient facts to support his allegations.

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As plaintiff did not file an opposition to the motion to dismiss, he has not

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provided any additional information for the court to consider. Reading the complaint broadly, as

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the court must, the court determined it was possible that plaintiff was stating a cognizable claim,

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presumably for violation of his due process rights. However, reading the complaint more closely,

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and in light of defendants’ motion, the undersigned agrees that the complaint lacks sufficient

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facts as to what claims plaintiff is attempting to raise. In addition, defendants request the court

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take judicial notice1 of plaintiff’s prior case filed in this court, Morris v. Nangalama, et al., 2:12-

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cv-1202 MCE KJN. In this prior action, plaintiff brought a § 1983 case against numerous

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defendants, including those in this case. In the court’s screening order, the court determined

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plaintiff stated a claim against three defendants in relation to medical care, but did not state a

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cognizable claims against any of the remaining defendants, including Turner and Cannedy.

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Relevant to the issues in this case, the court found plaintiff’s claims regarding the RVR to be

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vague and conclusory as he could be raising several potential claims including retaliation and/or

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an Eighth Amendment violation. The court then explained to plaintiff what was required to state

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a claim, and provided him an opportunity to file an amended complaint addressing the

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deficiencies identified. Plaintiff failed to do so, and filed this action instead. (See Order, Doc. 7,

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2:12-cv-1202 MCE KJN).

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In light of the information the court previously provided plaintiff as to what was

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required to state a cognizable claim, the undersigned finds the allegations in the current

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complaint to be insufficient to state a claim. However, as in his prior case, the undersigned finds

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it is possible that the defects can be cured and plaintiff should be provided one last opportunity to

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file an amended complaint.

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The court may take judicial notice pursuant to Federal Rule of Evidence 201 of
matters of public record. See U.S. v. 14.02 Acres of Land, 530 F.3d 883, 894 (9th Cir. 2008).
Thus, this court may take judicial notice of state court records, see Kasey v. Molybdenum Corp.
of America, 336 F.2d 560, 563 (9th Cir. 1964), as well as its own records, see Chandler v. U.S.,
378 F.2d 906, 909 (9th Cir. 1967).
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As such, plaintiff is informed that as to any potential Eighth Amendment claim he

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is attempting to raise, the treatment a prisoner receives in prison and the conditions under which

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the prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits

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cruel and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v.

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Brennan, 511 U.S. 825, 832 (1994). The Eighth Amendment “embodies broad and idealistic

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concepts of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S.

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97, 102 (1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes

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v. Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners

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with “food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v.

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McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth

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Amendment only when two requirements are met: (1) objectively, the official’s act or omission

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must be so serious such that it results in the denial of the minimal civilized measure of life’s

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necessities; and (2) subjectively, the prison official must have acted unnecessarily and wantonly

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for the purpose of inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth

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Amendment, a prison official must have a “sufficiently culpable mind.” See id.

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Deliberate indifference to a prisoner’s serious illness or injury, or risks of serious

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injury or illness, gives rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at

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105; see also Farmer, 511 U.S. at 837. This applies to physical as well as dental and mental

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health needs. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982). An injury or illness is

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sufficiently serious if the failure to treat a prisoner’s condition could result in further significant

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injury or the “. . . unnecessary and wanton infliction of pain.” McGuckin v. Smith, 974 F.2d

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1050, 1059 (9th Cir. 1992); see also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994).

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Factors indicating seriousness are: (1) whether a reasonable doctor would think that the condition

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is worthy of comment; (2) whether the condition significantly impacts the prisoner’s daily

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activities; and (3) whether the condition is chronic and accompanied by substantial pain. See

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Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000) (en banc).
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The requirement of deliberate indifference is less stringent in medical needs cases

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than in other Eighth Amendment contexts because the responsibility to provide inmates with

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medical care does not generally conflict with competing penological concerns. See McGuckin,

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974 F.2d at 1060. Thus, deference need not be given to the judgment of prison officials as to

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decisions concerning medical needs. See Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir.

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1989). The complete denial of medical attention may constitute deliberate indifference. See

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Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986). Delay in providing medical

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treatment, or interference with medical treatment, may also constitute deliberate indifference.

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See Lopez, 203 F.3d at 1131. Where delay is alleged, however, the prisoner must also

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demonstrate that the delay led to further injury. See McGuckin, 974 F.2d at 1060.
Negligence in diagnosing or treating a medical condition does not, however, give

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rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 106. Moreover, a

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difference of opinion between the prisoner and medical providers concerning the appropriate

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course of treatment does not give rise to an Eighth Amendment claim. See Jackson v. McIntosh,

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90 F.3d 330, 332 (9th Cir. 1996).

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If he is attempting to raise a retaliation claim, in order to state a claim under 42

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U.S.C. § 1983 for retaliation, the prisoner must establish that he was retaliated against for

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exercising a constitutional right, and that the retaliatory action was not related to a legitimate

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penological purpose, such as preserving institutional security. See Barnett v. Centoni, 31 F.3d

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813, 815-16 (9th Cir. 1994) (per curiam). In meeting this standard, the prisoner must

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demonstrate a specific link between the alleged retaliation and the exercise of a constitutional

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right. See Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995); Valandingham v. Bojorquez, 866

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F.2d 1135, 1138-39 (9th Cir. 1989). The prisoner must also show that the exercise of First

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Amendment rights was chilled, though not necessarily silenced, by the alleged retaliatory

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conduct. See Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000), see also Rhodes v. Robinson,

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408 F.3d 559, 569 (9th Cir. 2005). Thus, the prisoner plaintiff must establish the following in
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order to state a claim for retaliation: (1) prison officials took adverse action against the inmate;

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(2) the adverse action was taken because the inmate engaged in protected conduct; (3) the

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adverse action chilled the inmate’s First Amendment rights; and (4) the adverse action did not

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serve a legitimate penological purpose. See Rhodes, 408 F.3d at 568.

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As to the chilling effect, the Ninth Circuit in Rhodes observed: “If Rhodes had not

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alleged a chilling effect, perhaps his allegations that he suffered harm would suffice, since harm

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that is more than minimal will almost always have a chilling effect.” Id. at n.11. By way of

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example, the court cited Pratt in which a retaliation claim had been decided without discussing

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chilling. See id. This citation is somewhat confusing in that the court in Pratt had no reason to

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discuss chilling because it concluded that the plaintiff could not prove the absence of legitimate

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penological interests. See Pratt, 65 F.3d at 808-09. Nonetheless, while the court has clearly

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stated that one of the “basic elements” of a First Amendment retaliation claim is that the adverse

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action “chilled the inmates exercise of his First Amendment rights,” id. at 567-68, see also

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Resnick, 213 F.3d at 449, the comment in Rhodes at footnote 11 suggests that adverse action

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which is more than minimal satisfies this element. Thus, if this reading of Rhodes is correct, the

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chilling effect element is essentially subsumed by adverse action.

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Finally, if he is claiming a violation of his due process rights, the Due Process

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Clause protects prisoners from being deprived of life, liberty, or property without due process of

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law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a claim of deprivation of

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due process, a plaintiff must allege the existence of a liberty or property interest for which the

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protection is sought. See Ingraham v. Wright, 430 U.S. 651, 672 (1977); Bd. of Regents v. Roth,

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408 U.S. 564, 569 (1972). Due process protects against the deprivation of property where there

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is a legitimate claim of entitlement to the property. See Bd. of Regents, 408 U.S. at 577.

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Protected property interests are created, and their dimensions are defined, by existing rules that

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stem from an independent source – such as state law – and which secure certain benefits and

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support claims of entitlement to those benefits. See id.
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Liberty interests can arise both from the Constitution and from state law. See

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Hewitt v. Helms, 459 U.S. 460, 466 (1983); Meachum v. Fano, 427 U.S. 215, 224-27 (1976);

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Smith v. Sumner, 994 F.2d 1401, 1405 (9th Cir. 1993). In determining whether the Constitution

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itself protects a liberty interest, the court should consider whether the practice in question “. . . is

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within the normal limits or range of custody which the conviction has authorized the State to

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impose.” Wolff, 418 U.S. at 557-58; Smith, 994 F.2d at 1405. Applying this standard, the

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Supreme Court has concluded that the Constitution itself provides no liberty interest in good-

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time credits, see Wolff, 418 U.S. at 557; in remaining in the general population, see Sandin v.

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Conner, 515 U.S. 472, 485-86 (1995); in not losing privileges, see Baxter v. Palmigiano, 425

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U.S. 308, 323 (1976); in staying at a particular institution, see Meachum, 427 U.S. at 225-27; or

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in remaining in a prison in a particular state, see Olim v. Wakinekona, 461 U.S. 238, 245-47

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(1983).

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In determining whether state law confers a liberty interest, the Supreme Court has

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adopted an approach in which the existence of a liberty interest is determined by focusing on the

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nature of the deprivation. See Sandin v. Connor, 515 U.S. 472, 481-84 (1995). In doing so, the

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Court has held that state law creates a liberty interest deserving of protection only where the

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deprivation in question: (1) restrains the inmate’s freedom in a manner not expected from the

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sentence; and (2) “imposes atypical and significant hardship on the inmate in relation to the

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ordinary incidents of prison life.” Id. at 483-84. Prisoners in California have a liberty interest in

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the procedures used in prison disciplinary hearings where a successful claim would not

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necessarily shorten the prisoner’s sentence. See Ramirez v. Galaza, 334 F.3d 850, 853, 859 (9th

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Cir. 2003) (concluding that a due process challenge to a prison disciplinary hearing which did not

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result in the loss of good-time credits was cognizable under § 1983); see also Wilkinson v.

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Dotson, 544 U.S. 74, 82 (2005) (concluding that claims which did not seek earlier or immediate

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release from prison were cognizable under § 1983).

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Where a prisoner alleges the deprivation of a liberty or property interest caused by

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the random and unauthorized action of a prison official, there is no claim cognizable under 42

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U.S.C. § 1983 if the state provides an adequate post-deprivation remedy. See Zinermon v.

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Burch, 494 U.S. 113, 129-32 (1990); Hudson v. Palmer, 468 U.S. 517, 533 (1984). A state’s

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post-deprivation remedy may be adequate even though it does not provide relief identical to that

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available under § 1983. See Hudson, 468 U.S. at 531 n.11. A due process claim is not barred,

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however, where the deprivation is foreseeable and the state can therefore be reasonably expected

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to make pre-deprivation process available. See Zinermon, 494 U.S. at 136-39. An available

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state common law tort claim procedure to recover the value of property is an adequate remedy.

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See id. at 128-29.

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With respect to prison disciplinary proceedings, due process requires prison

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officials to provide the inmate with: (1) a written statement at least 24 hours before the

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disciplinary hearing that includes the charges, a description of the evidence against the inmate,

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and an explanation for the disciplinary action taken; (2) an opportunity to present documentary

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evidence and call witnesses, unless calling witnesses would interfere with institutional security;

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and (3) legal assistance where the charges are complex or the inmate is illiterate. See Wolff, 418

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U.S. at 563-70. Due process is satisfied where these minimum requirements have been met, see

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Walker v. Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994), and where there is “some evidence” in

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the record as a whole which supports the decision of the hearing officer, see Superintendent v.

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Hill, 472 U.S. 445, 455 (1985). The “some evidence” standard is not particularly stringent and is

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satisfied where “there is any evidence in the record that could support the conclusion reached.”

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Id. at 455-56. However, a due process claim challenging the loss of good-time credits as a result

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of an adverse prison disciplinary finding is not cognizable under § 1983 and must be raised by

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way of habeas corpus. See Blueford v. Prunty, 108 F.3d 251, 255 (9th Cir. 1997).

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Plaintiff is further reminded that, as a general rule, an amended complaint

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supersedes the original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).

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Thus, following dismissal with leave to amend, all claims alleged in the original complaint which

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are not alleged in the amended complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567

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(9th Cir. 1987). Therefore, if plaintiff amends the complaint, the court cannot refer to the prior

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pleading in order to make plaintiff's amended complaint complete. See Local Rule 220. An

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amended complaint must be complete in itself without reference to any prior pleading. See id.

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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). The complaint must allege in specific terms how

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each named defendant is involved, and must set forth some affirmative link or connection

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between each defendant’s actions and the claimed deprivation. See 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). Vague and

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conclusory allegations concerning the involvement of official personnel in civil rights violations

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are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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Plaintiff is warned that failure to file an amended complaint within the time he is

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provided may be grounds for dismissal of this action. See Ferdik, 963 F.2d at 1260-61; see also

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Local Rule 110. Plaintiff is also warned that a complaint which fails to comply with Rule 8 may,

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in the court’s discretion, be dismissed with prejudice pursuant to Rule 41(b). See Nevijel v.

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North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).

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III.

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Based on the foregoing, the undersigned recommends that defendant’s unopposed

CONCLUSION

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motion to dismiss (Doc. 21) be granted, but that plaintiff be granted leave to file an amended

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complaint in order to attempt to cure the defects noted above.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 20 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. The document should be captioned “Objections to Magistrate Judge's

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Findings and Recommendations.” Failure to file objections within the specified time may waive

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the right to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: February 25, 2016
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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