Calihan v. Murphy

Filing 15

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 4/29/2015 RECOMMENDING that the 13 amended complaint be dismissed for failure to state a claim upon which relief may be granted and that the Clerk be directed to close the case. Referred to Judge Troy L. Nunley; Objections due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENNETH R. CALIHAN,

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Plaintiff,

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v.

RECOMMENDATION OF DISMISSAL
PURSUANT TO 28 U.S.C. § 1915A FOR
FAILURE TO STATE A CLAIM

G. MURPHY,

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No. 2:13-cv-1982-TLN-EFB P

Defendant.

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Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in an action

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brought under 42 U.S.C. § 1983. After a dismissal pursuant to 28 U.S.C. § 1915A, he has filed

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an amended complaint.

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion

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of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which

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relief may be granted,” or “seeks monetary relief from a defendant who is immune from such

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relief.” Id. § 1915A(b).
In the amended complaint (ECF No. 13), plaintiff alleges that defendant Murphy housed

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him in administrative segregation based upon his belief that plaintiff made threats against staff.

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Murphy allegedly violated prison policies because he failed to conduct a threat assessment.

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Plaintiff claims that the allegations against him were false and that he was never issued a rules

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violation report. Plaintiff also claims he was housed in administrative segregation for around

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eight months under the following conditions: no phone calls; limited exercise; no contact visits;

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limited canteen; and confined to his cell for around 22.5 hours a day. Plaintiff claims that his

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rights were violated under the Eighth Amendment and under the equal protection and due process

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clauses of the Fourteenth Amendment. In dismissing the original complaint with leave to amend

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(ECF No. 12), the court informed plaintiff of the standards governing his intended claims for

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relief. Plaintiff’s amended complaint fails to correct the deficiencies in his claims.

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The Eighth Amendment protects prisoners from inhumane methods of punishment and

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from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir.

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2006). To show a violation of the Eighth Amendment, plaintiff must allege facts sufficient to

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support a claim that prison officials knew of and disregarded a substantial risk of serious harm to

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the plaintiff. E.g., Farmer v. Brennan, 511 U.S. 825, 847 (1994); Frost v. Agnos, 152 F.3d 1124,

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1128 (9th Cir. 1998). Extreme deprivations are required to make out a conditions of confinement

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claim, and only those deprivations denying the minimal civilized measure of life’s necessities are

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sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian,

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503 U.S. 1, 9 (1992).

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To state a claim for violation of the right to procedural due process, plaintiff must allege

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facts showing: “(1) a deprivation of a constitutionally protected liberty or property interest, and

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(2) a denial of adequate procedural protections.” Kildare v. Saenz, 325 F.3d 1078, 1085 (9th Cir.

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2003).

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State regulations may create a liberty interest in avoiding restrictive conditions of

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confinement if those conditions “present a dramatic departure from the basic conditions of [the

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inmate’s] sentence.” Sandin v. Conner, 515 U.S. 472, 485 (1995).

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In the context of a disciplinary proceeding where a liberty interest is at stake, due process

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requires that “some evidence” support the disciplinary decision. Superintendent v. Hill, 472 U.S.

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445, 455 (1985). The inmate must also receive: “(1) advance written notice of the disciplinary

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charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to
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call witnesses and present documentary evidence in his defense; and (3) a written statement by

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the factfinder of the evidence relied on and the reasons for the disciplinary action.” Id. at 454

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(citing Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974).

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“To state a § 1983 claim for violation of the Equal Protection Clause, a plaintiff must

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show that he was treated in a manner inconsistent with others similarly situated, and that the

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defendants acted with an intent or purpose to discriminate against the plaintiff based upon

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membership in a protected class.” Thornton v. City of St. Helens, 425 F.3d 1158, 1166-67 (9th

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Cir. 2005) (internal quotations omitted).

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Plaintiff’s amended complaint fails to cure the defects in his claims. First, there are no

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facts alleged to support an equal protection claim. Plaintiff alleges no facts demonstrating

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disparate treatment based on class based animus. Further, the facts alleged do not support an

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Eighth Amendment claim. There are no facts showing that Murphy knew of and disregarded a

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substantial risk of serious harm to plaintiff by housing him in administrative segregation or that

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placement therein caused any injury to plaintiff. Lastly, plaintiff fails to properly state a due

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process claim because the allegations do not show that his eight-month sentence implicated a

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protected liberty interest or that he was denied any of the necessary procedural protections set

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forth in Wolff. While plaintiff alleges he was denied various privileges while confined in

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administrative segregation, numerous cases have held that there is no protected liberty interest in

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avoiding similar conditions. Compare Sandin, 515 U.S. at 486 (30 days disciplinary segregation

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is not atypical and significant) with Wilkinson v. Austin, 545 U.S. 209, 223-24 (2005) (indefinite

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solitary confinement in harsh conditions, combined with revocation of parole eligibility held

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sufficient to invoke Due Process protections) and Brown v. Or. Dept. of Corrections, 751 F.3d

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983, 988 (9th Cir. 2014) (27-month confinement in intensive management unit implicated liberty

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interest). See also Hewitt v. Helms, 459 U.S. 460, 467 & n.4 (1983), abrogated in part on other

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grounds by Sandin, 515 U.S. at 480-84 (even “severe hardships” imposed by segregation, such as

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“denial of access to vocational, educational, recreational, and rehabilitative programs, restrictions

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on exercise, and confinement to [one’s] cell for lengthy periods of time,” do not give rise to a

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protected liberty interest); Ortiz v. Thomas, No. CV 09-0396-PHX-MHM, 2009 U.S. Dist. LEXIS
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29891, at *10-11 (D. Ariz. Mar. 25, 2009) (seven months in administrative segregation, on

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lockdown 23 hours a day, five days a week, is not atypical and significant); Medina v. Dickinson,

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No. 2:10-cv-0502-LKK-AC, 2013 U.S. Dist. LEXIS 9166, at *26-27 (E.D. Cal. Jan. 23, 2013)

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(nine months in administrative segregation, accompanied by a loss of visiting privileges and

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access to educational and vocational programs, “are not atypical and significant hardships when

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compared to the burdens of ordinary prison life”). Moreover, the allegation that plaintiff was

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placed in administrative segregation on “false” charges does not, in and of itself, implicate a

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constitutional right. See Rupe v. Beard, No. CV-08-2454-EFS, 2013 U.S. Dist. LEXIS 180415, at

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*24 (E.D. Cal. Dec. 23, 2013) (“While Plaintiff maintains that he was charged with false reports,

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the Due Process Clause does not make one free from false accusations, but merely provides

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procedural protections to defend against false accusations”).

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Despite notice of the complaint’s deficiencies and an opportunity to amend, plaintiff is

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unable to state a proper claim for relief. Therefore, this action must be dismissed without leave

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to amend for failure to state a claim upon which relief could be granted. See Lopez v. Smith, 203

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F.3d 1122, 1129 (9th Cir. 2000) (“Under Ninth Circuit case law, district courts are only required

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to grant leave to amend if a complaint can possibly be saved. Courts are not required to grant

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leave to amend if a complaint lacks merit entirely.”); see also Doe v. United States, 58 F.3d 494,

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497 (9th Cir. 1995) (“[A] district court should grant leave to amend even if no request to amend

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the pleading was made, unless it determines that the pleading could not be cured by the allegation

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of other facts.”).

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Accordingly, IT IS HEREBY RECOMMENDED that the amended complaint (ECF No.

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13) be dismissed for failure to state a claim upon which relief may be granted and that the Clerk

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be directed to close the case.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 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 and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the
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objections shall be served and filed within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez

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v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: April 29, 2015.

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