Haraszewski v. Knipp

Filing 33

ORDER signed by Magistrate Judge Deborah Barnes on 3/07/17 ordering the 2/06/17 second amended complaint 32 is dismissed with leave to amend. Plaintiff shall file a third amended complaint within 30 days from the date of this order. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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H. DYMITRI HARASZEWSKI,

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No. 2:13-cv-2494 DB P

Plaintiff,
v.

ORDER

KNIPP, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action under

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42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28

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U.S.C. § 636(b)(1). Plaintiff’s second amended complaint is now before the court for screening.

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BACKGROUND
Plaintiff filed his original complaint here on December 2, 2013. On screening, the court

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found plaintiff appeared to be alleging claims for interference with his mail, deprivation of his

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personal property, placement in administrative segregation without due process, and retaliation.

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(See ECF No. 10.) The complaint was dismissed with leave to amend so that plaintiff could show

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a link between specific defendants and the alleged constitutional violations.

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Plaintiff filed a first amended complaint on November 12, 2015. (ECF No. 14.) On

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December 16, 2015, the court screened that complaint and found the only cognizable claim was

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one for retaliation against defendants Garcia, Casagrande, and Reese. (ECF No. 16.) Plaintiff
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sought reconsideration of that order and sought to proceed in this case under seal. (ECF No. 28.)

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On reconsideration, the undersigned found that the first amended complaint stated no

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cognizable claims because it failed to state even the retaliation claim with sufficient particularity.

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Plaintiff was advised again that he must demonstrate how each defendant personally participated

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in the deprivation of his rights. The court also considered plaintiff’s argument that records in this

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case should be sealed because plaintiff feared threats to his safety if he named the Doe

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defendants. The court found plaintiff failed to overcome the presumption in favor of public

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access to court records and denied his motion. The court permitted plaintiff an opportunity to file

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a second amended complaint. (See ECF No. 29.)

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On February 6, 2017, plaintiff filed a second amended complaint. (ECF No. 32.)

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SCREENING

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I.

Legal Standards

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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 officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 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 (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.

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A complaint, or portion thereof, should only be dismissed for failure to state a claim upon

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which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in

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support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467

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U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt
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Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under

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this standard, the court must accept as true the allegations of the complaint in question, Hosp.

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Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light

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most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, Jenkins v.

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McKeithen, 395 U.S. 411, 421 (1969).

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II.

Allegations in Plaintiff’s Second Amended Complaint
Plaintiff states that on November 26, 2011, two unnamed “yard officers” removed him

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from a general population cell. They also took a large bag of papers, books, and photos. (Second

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Am. Compl. (“SAC”) (ECF No. 32) at 3.) About an hour later, the same two officers returned

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and handcuffed plaintiff for segregation processing. Plaintiff was given a Form 114D, a

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“placement notice,” to sign. The only reason given on the form for plaintiff’s segregation was

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that he was being investigated as a “threat to the safety and security” of the prison due to the

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possession of “harassing material.” (Id. at 3-4.)

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Plaintiff remained in segregation until December 29, 2011. During that time, he had three

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formal hearings, one interrogation, and two informal discussions with Captain Harrington.

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However, he was never given any additional reasons why he had been placed in segregation.

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According to plaintiff, Captain Harrington told him the 114D “did not state any intelligible

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reason” for plaintiff’s segregation. (Id. at 4.)

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Plaintiff then appears to quote from a document dated December 14, 2011, which may

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have been authored by Captain Harrington, and which stated that the 114D did not provide

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adequate information to permit plaintiff an opportunity to present a defense. The document stated

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that a new 114D should be issued. According to plaintiff, he never received a revised 114D. (Id.)

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When plaintiff returned to the general population, he found that the large bag taken from

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his cell was still missing. The bag had a personal journal, letters and other printed material sent

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from friends and family, photos, a book, and his notes on the book. Plaintiff repeatedly asked for

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return of his property.

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In April 2012, an “ISU officer” called plaintiff in for an interview and demanded, in front
of a Facility A Sergeant, that plaintiff “‘stop sending fucking paperwork’ to his lieutenant about
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[his] missing property.” The ISU officer told plaintiff that only three pages of documents had

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been taken, and reminded plaintiff that they had been returned. When plaintiff began to talk

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about his other missing property, the officer “stood up and approached me with menace as I

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backed toward the door, snarling that “I already gave you your shit back, and now I told you to

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get the fuck out, and I won’t tell you again.” Plaintiff stopped filing paperwork regarding his

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property after that threat. (Id. at 5.)

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Plaintiff contends this same ISU officer and two others threated him with retaliation

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during their November 29, 2011 interrogation of plaintiff while he was in segregation. Plaintiff

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appears to be contending the officers threatened to have plaintiff transferred to a prison where he

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would experience violence if he kept “pushing the issue,” apparently meaning trying to find out

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why he had been placed in segregation. (Id. at 5-6.)

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Plaintiff next contends he wrote a habeas petition while in segregation in late 2011.

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However, he appears to be alleging the prison did not send it until August 2012. (Id. at 6.)

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Plaintiff states that he is primarily alleging a claim of interference with non-legal mail,

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which he believes has some sort of relationship to his segregation because it began then.

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According to plaintiff, about 40% of his mail has been affected either by not being delivered,

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delivered with missing pages without explanation, or sent after an unusual and unexplained delay.

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In addition, plaintiff states that two books were improperly denied him for no reason or for

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inappropriate reasons. (Id. at 7-8.)

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III.

Does Plaintiff’s Second Amended Complaint State Cognizable Claims?
Plaintiff’s second amended complaint suffers the same problem that his prior complaints

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have. While plaintiff makes more specific allegations here, he has not identified which

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defendants have caused which harm. Plaintiff has been advised twice previously that he must

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specifically identify what each defendant has done in order to state a cognizable claim.

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With respect to the named defendants, plaintiff simply identifies them as working in the

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mail room. He shows no specific link between interference with his mail and any of these

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defendants. Plaintiff may not attribute liability to a group of defendants, but must “set forth

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specific facts as to each individual defendant's” deprivation of his rights. Leer v. Murphy, 844
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F.2d 628, 634 (9th Cir. 1988); see also Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989);

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Ingram v. Brewer, No. 1:07-cv-00176-OWW-DLB, 2009 WL 89189 (E.D. Cal. Jan. 12, 2009)

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(“In order to state a claim for relief under section 1983, Plaintiff must link each named defendant

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with some affirmative act or omission that demonstrates a violation of Plaintiff's federal rights.”).
With respect to the Doe defendants, based on plaintiff’s motion to proceed with this

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action under seal, it is clear that plaintiff knows the identity of those defendants, but does not

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wish to provide their names. Even if the court found plaintiff had stated a cognizable claim

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against any of those Doe defendants, the court cannot order the Marshal to serve process on any

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Doe defendants until such defendants have been identified. See, e.g., Castaneda v. Foston, No.

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1:12-cv-00026-AWI-BAM (PC), 2013 WL 4816216, at *3 (E.D. Cal. Sept. 6, 2013), findings and

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recos. adopted, 2014 WL 29631 (E.D. Cal. Jan. 3, 2014).

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Plaintiff has had two prior opportunities to state cognizable claims. The court was clear in

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both prior screening orders and in the order on plaintiff’s motion for reconsideration that plaintiff

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must link each defendant to actions which demonstrate a constitutional violation. Further, despite

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the denial of his motion to proceed under seal, plaintiff still has not identified the Doe defendants.

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Plaintiff will be given one final chance to amend his petition to identify, by name, what

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each defendant has done. Plaintiff is advised that he should carefully review the court’s

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November 15, 2016 order regarding his motion for reconsideration as it sets out the standards for

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plaintiff’s legal claims. The court notes that, if plaintiff identifies the defendant responsible, he

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may have stated a claim for retaliation based on the April 2012 incident with the “ISU officer.”

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He may also have stated a due process claim regarding his placement in segregation without

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notice of the charges. Again, however, plaintiff must name a responsible defendant. The same is

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true for plaintiff’s claim regarding the withholding of his mail. If he names the responsible party

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or parties, he may have stated a due process claim.

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For the foregoing reasons, IT IS HEREBY ORDERED as follows:

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1. The February 6, 2017 second amended complaint (ECF No. 32) is dismissed with

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leave to amend; and
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2. Plaintiff shall file a third amended complaint within thirty days from the date of this

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order. Failure to comply with this order will result in a dismissal of this action for

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failure to comply with a court order and failure to prosecute.

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Dated: March 7, 2017

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DLB:9
DLB1/prisoner-civil rights/hara2494.sac scrn

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