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)

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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

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