Wheeler v. Hodges

Filing 12

ORDER signed by Magistrate Judge Kendall J. Newman on 04/01/14 ordering plaintiff's amended complaint is dismissed. Plaintiff is granted 30 days from the date of service of this order to file a second amended complaint. The clerk of the court is directed to send plaintiff the form for filing a prisoner civil rights complaint. (Plummer, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

REGINALD WHEELER,

12

Plaintiff,

13
14

No. 2:13-cv-2526 KJN P

v.

ORDER

M. HODGES, et al.,

15

Defendants.

16
17

Introduction

18

Plaintiff is a state prisoner proceeding without counsel. Plaintiff seeks relief pursuant to

19

42 U.S.C. § 1983. This proceeding was referred to this court pursuant to 28 U.S.C. § 636(b)(1)

20

and Local Rule 302. This action was removed from San Joaquin County Superior Court by

21

defendants. On February 24, 2014, plaintiff filed an amended complaint as of right. Fed. R. Civ.

22

P. 15.

23

Screening Standards

24

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

25

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

26

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

27

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

28

monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).
1

1

A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

2

Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

3

Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

4

indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

5

490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

6

pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

7

Cir. 1989); Franklin, 745 F.2d at 1227.

8

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

9

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

10

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

11

U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt

12

Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under

13

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

14

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

15

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

16

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

17

Screening Plaintiff’s Amended Complaint

18
19
20

First, plaintiff failed to sign the amended complaint. Rule 11 of the Federal Rules of Civil
Procedure requires parties to sign pleadings.
Second, despite the court’s detailed guidance in the January 24, 2014 screening order,

21

plaintiff did not file his amended complaint on the civil rights form used by this district, and

22

continues to challenge actions by defendants based on alleged violations of prison regulations

23

which, standing alone, fail to state a cognizable civil rights claim.

24

Third, plaintiff’s allegations that defendants allegedly falsified documents and other

25

defendants relied on such false documents to impose an allegedly “illegal disciplinary report”

26

against plaintiff are insufficient to state a federal civil rights claim. Brown v. CMC, 2010 WL

27

2674499, *6-7 (C.D. Cal. May 18, 2010) (“allegations of a fabricated RVR, alone, do not support

28

a cognizable due process claim”); Buckley v. Gomez, 36 F.Supp.2d 1216, 1222 (S.D. Cal. 1997)
2

1

(prisoners have no constitutional right to be free from wrongfully issued disciplinary reports),

2

aff'd without opinion, 168 F.3d 498 (9th Cir. 1999); Sprouse v. Babcock, 870 F.2d 450, 452 (8th

3

Cir. 1989) (prisoner’s claims based on allegedly false charges do not state a constitutional claim).

4

Plaintiff’s allegations concerning the allegedly false charges fail to state a cognizable

5

constitutional violation.

6

Fourth, plaintiff again attempts to challenge prison disciplinary No. 12-01-89-P, based on

7

his allegations concerning a falsified prison disciplinary. The exhibits provided by plaintiff

8

demonstrate that plaintiff was found guilty of “introduction of dangerous contraband to a state

9

prison -- possession of cell phones” (ECF No. 1-2 at 15), and plaintiff was imposed the loss of

10

good time credits (ECF No. 1-2 at 4). As plaintiff was previously advised, his challenge to the

11

prison disciplinary is barred by the favorable termination rule. Heck v. Humphrey, 512 U.S. 477

12

(1994); Edwards v. Balisok, 520 U.S. 641, 648 (1997) (barring § 1983 challenge to prison

13

disciplinary hearing because success on the claim would result in automatic reversal of a

14

disciplinary sanction); Wolff v. McDonnell, 418 U.S. 539, 554-55 (1974) (holding that prisoners

15

could not use § 1983 to obtain restoration of good-time credits). Because plaintiff seeks removal

16

of a rules violation report from his file, such relief is only available in a habeas corpus action.

17

See Ramirez v. Galaza, 334 F.3d 850, 856 (9th Cir. 2003), cert. denied, 541 U.S. 1063 (2004).

18

Here, plaintiff alleges that he was subjected to a disciplinary proceeding that was based on

19

falsified documents or false information. Plaintiff’s claim for damages is barred by the favorable

20

termination rule of Heck and Balisok because a judgment in favor of plaintiff on his claim will

21

necessarily imply the invalidity of the disciplinary action, and plaintiff has not demonstrated that

22

the disciplinary action has been “reversed on direct appeal, expunged by executive order, declared

23

invalid by a state tribunal authorized to make such determination, or called into question by a

24

federal court’s issuance of a writ of habeas corpus.” See, e.g., Cox v. Clark, 321 Fed. Appx. 673,

25

676 (9th Cir. 2009) (affirming dismissal of due process claim pursuant to Balisok to the extent

26

that plaintiff sought restoration of good-time credits and the reversal of a disciplinary decision);

27

McCoy v. Spidle, 2009 WL 1287872, *7-*8 (E.D. Cal. May 6, 2009) (“A challenge under section

28

1983, seeking only damages and declaratory relief for procedural due process violations is also
3

1

barred if the nature of the challenge would necessarily imply the invalidity of the deprivation of

2

good-time credits.”). Plaintiff’s challenge to the prison disciplinary is barred by the Heck

3

favorable termination rule.
Fifth, plaintiff vaguely states that his due process rights “relating to disciplinary hearing

4
5

procedures” were violated. (ECF No. 10 at 7.) Prisoners retain their Fourteenth Amendment

6

right to due process subject to the restrictions imposed by the nature of the penal system. See

7

Wolff, 418 U.S. 539, 556 (1974). “Prison disciplinary proceedings are not part of a criminal

8

prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.”

9

Id. With respect to prison disciplinary proceedings, the minimum procedural requirements that

10

must be met are: (1) written notice of the charges; (2) at least 24 hours between the time the

11

prisoner receives written notice and the time of the hearing, so that the prisoner may prepare his

12

defense; (3) a written statement by the fact finders of the evidence they rely on and reasons for

13

taking disciplinary action; (4) the right of the prisoner to call witnesses and present documentary

14

evidence in his defense, when permitting him to do so would not be unduly hazardous to

15

institutional safety or correctional goals; and (5) legal assistance to the prisoner where the

16

prisoner is illiterate or the issues presented are legally complex. Id. at 563-71. As long as the

17

five minimum Wolff requirements are met, due process has been satisfied. Walker v. Sumner, 14

18

F.3d 1415, 1420 (9th Cir. 1994), overruled on other grounds by Sandin v. Connor, 515 U.S. 472

19

(1995).

20

If plaintiff alleges a named defendant failed to provide him with the minimum procedural

21

protections required under Wolff, such an allegation is not barred by Balisok, because a decision

22

in plaintiff’s favor would not necessarily imply the invalidity of the deprivation of the good-time

23

credits. See Wolff, 418 U.S. at 554-55, 563-65 (prisoner has a right to seek damages under

24

§ 1983 for the denial of procedural due process rights during prison disciplinary hearings); see

25

also Wilkinson v. Dotson, 544 U.S. 74, 81 (2005) (“Wolff makes clear that § 1983 remains

26

available to procedural challenges where success in the action would not necessarily spell

27

immediate or speedier relief for the prisoner.”); Heck, 512 U.S. at 482-83, 487 (distinguishing

28

Wolff as recognizing a § 1983 claim for “using the wrong procedures, not for reaching the wrong
4

1

result ( i.e., denying good-time credits),” where claim, if successful, would not necessarily imply

2

the invalidity of the prisoner’s conviction or sentence); Galaza, 334 F.3d at 858 (“the favorable

3

termination rule does not apply to § 1983 suits challenging a disciplinary hearing or

4

administrative sanction that does not affect the overall length of the prisoner’s confinement”).

5

However, in order to state a cognizable procedural due process claim, plaintiff must allege

6

facts demonstrating that his rights under Wolff were violated. Again, procedural due process

7

does not address alleged false reports or an alleged wrong result; rather, plaintiff’s allegations

8

must show that he was deprived of one of the five specific protections under Wolff set forth

9

above. In an abundance of caution, plaintiff is granted leave to file a second amended complaint

10

should plaintiff be able to allege facts demonstrating his procedural due process rights under

11

Wolff were violated.

12

If plaintiff chooses to file a second amended complaint, plaintiff must demonstrate how

13

the conditions complained of have resulted in a deprivation of plaintiff’s federal constitutional or

14

statutory rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the second amended

15

complaint must allege in specific terms how each named defendant is involved. There can be no

16

liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a

17

defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v.

18

Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.

19

1978). Furthermore, vague and conclusory allegations of official participation in civil rights

20

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

21

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

22

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

23

complaint be complete in itself without reference to any prior pleading. This requirement is

24

because, as a general rule, an amended complaint supersedes the original complaint. See Loux v.

25

Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files a second amended complaint, the

26

original pleading no longer serves any function in the case. Therefore, in a second amended

27

complaint, as in an original complaint, each claim and the involvement of each defendant must be

28

sufficiently alleged.
5

1

Conclusion

2

In accordance with the above, IT IS HEREBY ORDERED that:

3

1. Plaintiff’s amended complaint is dismissed.

4

2. Plaintiff is granted thirty days from the date of service of this order to file a second

5

amended complaint that complies with the instant order, the January 24, 2014 order, the

6

requirements of the Civil Rights Act, the Federal Rules of Civil Procedure, and the Local Rules of

7

Practice; the second amended complaint must be filed on the form used by the Eastern District of

8

California, must bear the docket number assigned this case, and must be labeled “Second

9

Amended Complaint.”

10
11
12

3. Failure to file a second amended complaint in accordance with this order will result in
a recommendation that this action be dismissed.
4. The Clerk of the Court is directed to send plaintiff the form for filing a prisoner civil

13

rights complaint pursuant to 42 U.S.C. § 1983.

14

Dated: April 1, 2014

15
16

/whee2526.14amd

17
18
19
20
21
22
23
24
25
26
27
28
6