Burton v. Barnes et al

Filing 10

ORDER signed by Magistrate Judge Dale A. Drozd on 2/13/2014 DENYING plaintiff's 6 motion to proceed IFP; plaintiff's complaint is DISMISSED without prejudice as Heck-barred; and this action is CLOSED. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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HARRISON L. BURTON,

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Plaintiff,

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No. 2:13-cv-0167 DAD P

v.

ORDER

WARDEN RON BARNES et al.,

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Defendant.

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Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C.

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

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the reasons discussed herein, the court will dismiss this action.1
SCREENING REQUIREMENT

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The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. §

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1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims

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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. See 28

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U.S.C. § 1915A(b)(1) & (2).

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Plaintiff has consented to Magistrate Judge jurisdiction over this action pursuant to 28 U.S.C. §
636. (Doc. No. 4)
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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 (9th

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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.
Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘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

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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However, in order to survive dismissal for failure to state a claim a complaint must contain more

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than “a formulaic recitation of the elements of a cause of action;” it must contain factual

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allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550

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U.S. at 555. 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 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all

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doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

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The Civil Rights Act under which this action was filed provides as follows:

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Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the
Constitution . . . shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress.

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42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the

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actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

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Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

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(1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the

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meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or

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omits to perform an act which he is legally required to do that causes the deprivation of which

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complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Moreover, supervisory personnel are generally not liable under § 1983 for the actions of

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their employees under a theory of respondeat superior and, therefore, when a named defendant

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holds a supervisorial position, the causal link between him and the claimed constitutional

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violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979);

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Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations

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concerning the involvement of official personnel in civil rights violations are not sufficient. See

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

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PLAINTIFF’S COMPLAINT
In the present case, plaintiff has identified Warden Ron Barnes, Lieutenant Leckie, and

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Correctional Officer Chenoweth as the defendants. In his complaint, plaintiff alleges that he

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received a prison rules violation report (“RVR”) for “Assault on a Peace Officer,” and defendant

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Leckie inappropriately found plaintiff guilty of the RVR. Plaintiff further alleges that defendant

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Leckie failed to provide him with the proper notice for his disciplinary hearing, denied him his

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only requested witness during the proceedings, and found him guilty of the disciplinary charge

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based on a mental health assessment. Plaintiff also alleges that defendant Leckie discriminated

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against him based on his bipolar disease. According to the attachments to plaintiff’s complaint,

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prison officials assessed plaintiff 90 days loss of credit, 30 days loss of all dayroom and telephone

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privileges, and 30 days loss of entertainment appliances based upon his disciplinary conviction.

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According to plaintiff, prison officials also referred him to the ICC for a possible Security

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Housing Unit term as a result of the disciplinary conviction. In terms of relief, plaintiff requests

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monetary damages and declaratory judgment. (Compl. at 2-3 & Attachs.)

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DISCUSSION
The court will dismiss this civil rights action because plaintiff’s success in this action

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would necessarily call into question the constitutionality of his imprisonment and implicate the

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duration of his confinement. See Edwards v. Balisok, 520 U.S. 641, 648 (1997) (dismissing §

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1983 action for declaratory relief and money damages because successful challenge to procedures
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used in disciplinary hearing that resulted in deprivation of good-time credits would necessarily

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imply the invalidity of the punishment imposed); see also Wilkinson v. Dotson, 544 U.S. 74, 81-

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82 (2005) (“a state prisoner’s § 1983 action is barred (absent prior invalidation) - no matter the

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relief sought (damages or equitable relief), no matter the target of the prisoner’s suit (state

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conduct leading to conviction or internal prison proceedings) - if success in that action would

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necessarily demonstrate the invalidity of confinement or its duration.”) (emphasis in original);

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Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (a state prisoner may not recover damages

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under § 1983 for allegedly unconstitutional imprisonment, or for any other harm caused by

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“actions whose unlawfulness would render the imprisonment invalid,” unless he can prove that

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the conviction or other basis for confinement has been reversed on direct appeal, expunged by

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executive order, declared invalid by a state tribunal authorized to make such a determination, or

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called into question by a federal court’s issuance of a writ of habeas corpus). If plaintiff wishes to

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challenge the fairness of his disciplinary proceedings, a writ of habeas corpus is his sole remedy

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in federal court which may be pursued only after exhausting all of his constitutional claims in

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state court.

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Based on the circumstances of this case, the undersigned concludes that it is clear plaintiff

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cannot cure the deficiencies of his complaint, and therefore, dismissal of this civil rights action

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without leave to amend is appropriate. See Chaset v. Fleer/Skybox Int’l, 300 F.3d 1083, 1088

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(9th Cir. 2002) (there is no need to prolong the litigation by permitting further amendment where

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the “basic flaw” in the underlying facts as alleged cannot be cured by amendment); Lipton v.

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Pathogenesis Corp., 284 F.3d 1027, 1039 (9th Cir. 2002) (“Because any amendment would be

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futile, there was no need to prolong the litigation by permitting further amendment.”).

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CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to proceed in forma pauperis (Doc. No. 6) is denied;

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2. Plaintiff’s complaint is dismissed without prejudice as Heck-barred; and

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3. This action is closed.

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Dated: February 13, 2014

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DAD:9
burt0167.56

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