Habeeb v. Foulk

Filing 16

ORDER signed by Magistrate Judge Craig M. Kellison on 10/19/16 granting 13 Motion to Proceed IFP. The Clerk of the Court is directed to designate this as a prisoner civil rights action pursuant to 42 U.S.C. § 1983. Plaintiffs amended complaint is dismissed with leave to amend. Plaintiff shall file a second amended complaint within 30 days of the dateof service of this order. (Plummer, M) Modified on 10/20/2016 (Plummer, M).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TAMIR ABDULLAH HABEEB,

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No. 2:14-cv-0706-CMK-P

Plaitniff,

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vs.

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F. FOULK, et al.

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ORDER

Defendants.
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Plaintiff, a former state prisoner, brings this action in propria persona. Plaintiff

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initiated this action by filing a motion for an extension of time, asking for additional time in

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which to file his petition for writ of habeas corpus. Upon initial screening, plaintiff was ordered

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to chose what type of action he was attempting to proceed with, file an appropriate pleading and

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resolve his fee status. Pending before the court is plaintiff’s amended complaint (Doc. 12) and

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motion to proceed in forma pauperis (Doc. 13).

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Plaintiff’s amended complaint makes it clear he wishes to proceed with this action

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as a civil rights action under 42 U.S.C. § 1983, and the Clerk of the Court will be directed to

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modify the docket accordingly. Plaintiff has consented to Magistrate Judge jurisdiction pursuant

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to 28 U.S.C. § 636(c) and no other party has been served or appeared in the action.
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Plaintiff has submitted the affidavit required by 28 U.S.C. § 1915(a) showing that

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plaintiff is unable to prepay fees and costs or give security therefor. His motion1 to proceed in

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forma pauperis will therefore be granted.

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

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

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§ 1915A(a). The court is also required to screen complaints brought by litigants who have been

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granted leave to proceed in forma pauperis. See 28 U.S.C. § 1915(e)(2). Under these screening

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provisions, the court must dismiss a complaint or portion thereof if it: (1) is frivolous or

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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief

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

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the Federal Rules of Civil Procedure require that complaints contain a “short and plain statement

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of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This means

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that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 1172,

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1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the

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complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it

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rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege

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with at least some degree of particularity overt acts by specific defendants which support the

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claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is

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impossible for the court to conduct the screening required by law when the allegations are vague

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and conclusory.

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I. PLAINTIFF’S ALLEGATIONS

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Plaintiff’s allegations are vague, but it appears he is claiming he was harassed and

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retaliated against for filing a sexual harassment complaint with internal affairs while at California

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Correctional Institute (CCI). He also seems to be claiming the correctional officers union

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It appears that plaintiff is no longer incarcerated. Therefore, the requirement
under § 1915(a) for providing a trust account statement is no longer necessary.
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conspired with prison officials effectively stopping prison employees from doing their jobs. He

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also seems to be challenging a rules violation report he received, and he makes general

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allegations regarding the grievance system.

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II. DISCUSSION
Plaintiff’s complaint suffers from a number of defects. First, to state a claim

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under 42 U.S.C. § 1983, the plaintiff must allege an actual connection or link between the actions

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of the named defendants and the alleged deprivations. See Monell v. Dep’t of Social Servs., 436

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U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A person ‘subjects’ another to the

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deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act,

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participates in another’s affirmative acts, or omits to perform an act which he is legally required

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to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740,

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743 (9th Cir. 1978). Vague and conclusory allegations concerning the involvement of official

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personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d

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266, 268 (9th Cir. 1982). Rather, the plaintiff must set forth specific facts as to each individual

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defendant’s causal role in the alleged constitutional deprivation. See Leer v. Murphy, 844 F.2d

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628, 634 (9th Cir. 1988).

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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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See Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221,

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1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based

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on an indisputably meritless legal theory or where the factual contentions are clearly baseless.

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

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inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639,

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640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.

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In order to avoid dismissal for failure to state a claim a complaint must contain

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more than “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements

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of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other
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words, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. at 678 (2009). Furthermore, a claim upon

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which the court can grant relief has facial plausibility. See Twombly, 550 U.S. at 570. “A claim

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has facial plausibility when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at

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678. When considering whether a complaint states a claim upon which relief can be granted, the

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court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), and

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construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416

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U.S. 232, 236 (1974).

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The court finds the allegations in plaintiff’s complaint so vague and conclusory

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that it fails to state a claim upon which relief can be granted. Although the Federal Rules of Civil

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Procedure adopt a flexible pleading policy, a complaint must give fair notice and state the

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elements of the claim plainly and succinctly. See Jones v. Community Redev. Agency, 733 F.2d

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646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt

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acts which defendants engaged in that support plaintiff’s claim. See id. Plaintiff’s complaint

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must be dismissed for failure to state a claim. However, plaintiff will be grant leave to file an

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amended complaint.

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As to the specific claims plaintiff attempts to state in his complaint, the standards

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for those the court can decipher will be outlined for plaintiff’s benefit. As discussed below, if

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plaintiff chooses to file an amended complaint, he will be required to set forth with more

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particularity what his claims are.

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A.

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In order to state a claim under 42 U.S.C. § 1983 for retaliation, the prisoner must

Retaliation

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establish that he was retaliated against for exercising a constitutional right, and that the

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retaliatory action was not related to a legitimate penological purpose, such as preserving

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institutional security. See Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam).
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In meeting this standard, the prisoner must demonstrate a specific link between the alleged

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retaliation and the exercise of a constitutional right. See Pratt v. Rowland, 65 F.3d 802, 807 (9th

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Cir. 1995); Valandingham v. Bojorquez, 866 F.2d 1135, 1138-39 (9th Cir. 1989). The prisoner

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must also show that the exercise of First Amendment rights was chilled, though not necessarily

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silenced, by the alleged retaliatory conduct. See Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir.

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2000), see also Rhodes v. Robinson, 408 F.3d 559, 569 (9th Cir. 2005). Thus, the prisoner

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plaintiff must establish the following in order to state a claim for retaliation: (1) prison officials

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took adverse action against the inmate; (2) the adverse action was taken because the inmate

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engaged in protected conduct; (3) the adverse action chilled the inmate’s First Amendment

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rights; and (4) the adverse action did not serve a legitimate penological purpose. See Rhodes,

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408 F.3d at 568. A plaintiff who fails to allege a chilling effect may still state a claim if he

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alleges he suffered some other harm. See Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)

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(citing Rhodes, 408 F.3d at 568, n. 11).

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Here, plaintiff states he was subjected to retaliation for filing a complaint about

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sexual harassment, but fails to provide the court with any clear understanding of who did what,

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and how his First Amendment rights were violated. While he alleges he was subjected to strip

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searches and false rules violation reports, he fails to provide supporting facts as to who was

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responsible and what actually happened. Conclusory statements about being subject to harassing

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actions are insufficient. If plaintiff files an amended complaint including this claim, he must

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allege facts showing how he was retaliated against.

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B.

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“The elements of an action for civil conspiracy are the formation and operation of

Conspiracy

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the conspiracy and damage resulting to plaintiff from an act or acts done in furtherance of a

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common design.” Applied Equipment Corp. v. Litton Saudi Arabia Ltd., 28 Cal.Rptr.2d 475

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(1994) (quotations and citation omitted). “The conspiring defendants must also have actual

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knowledge that a tort is planned and concur in the tortious scheme with knowledge of its
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unlawful purpose.” Kidron v. Movie Acquisition Corp., 40 Cal.App.4th 1571, 1582, 47

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Cal.Rptr.2d 752, 758 (1995). Knowledge of the planned tort must also be combined with intent

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to aid in its commission. See id.

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Plaintiff alleges the California Correctional Peace Officers Association (the

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Union) is corrupt and has conspired with prison officials to violate his rights. However, he fails

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to allege the actual formation and operation of a conspiracy, nor does he allege specific damages

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resulting from such acts. While there are allegations of acts done, such as interference with

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medical treatment, interference with the grievance process, and false rules violations, plaintiff

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fails to make the connection between the acts and the other elements of conspiracy.

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D.

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With respect to the prison disciplinary proceedings, due process requires prison

Due Process

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officials to provide the inmate with: (1) a written statement at least 24 hours before the

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disciplinary hearing that includes the charges, a description of the evidence against the inmate,

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and an explanation for the disciplinary action taken; (2) an opportunity to present documentary

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evidence and call witnesses, unless calling witnesses would interfere with institutional security;

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and (3) legal assistance where the charges are complex or the inmate is illiterate. See Wolff, 418

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U.S. at 563-70. Due process is satisfied where these minimum requirements have been met, see

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Walker v. Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994), and where there is “some evidence” in

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the record as a whole which supports the decision of the hearing officer, see Superintendent v.

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Hill, 472 U.S. 445, 455 (1985). The “some evidence” standard is not particularly stringent and is

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satisfied where “there is any evidence in the record that could support the conclusion reached.”

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Id. at 455-56. However, a due process claim challenging the loss of good-time credits as a result

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of an adverse prison disciplinary finding is not cognizable under § 1983 and must be raised by

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way of habeas corpus. See Blueford v. Prunty, 108 F.3d 251, 255 (9th Cir. 1997).

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It is unclear from the complaint whether plaintiff is actually challenging any of the
rule violations he claims he wrongfully suffered. To the extent he has, he fails to provide the
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court with sufficient information to evaluate this claim. Specifically, he fails to allege the facts

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surrounding the charges, whether he was assessed loss of good-time credits, and how his due

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process rights were violated.

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E.

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To the extent plaintiff’s claims relates to the inmate grievance process, prisoners

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generally have no stand-alone due process rights related to the administrative grievance process.

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See Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); see also Ramirez v. Galaza, 334 F.3d

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850, 860 (9th Cir. 2003) (holding that there is no liberty interest entitling inmates to a specific

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grievance process). Because there is no right to any particular grievance process, it is impossible

Grievances

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for due process to have been violated by ignoring or failing to properly process grievances.

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Numerous district courts in this circuit have reached the same conclusion. See Smith v.

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Calderon, 1999 WL 1051947 (N.D. Cal 1999) (finding that failure to properly process grievances

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did not violate any constitutional right); Cage v. Cambra, 1996 WL 506863 (N.D. Cal. 1996)

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(concluding that prison officials’ failure to properly process and address grievances does not

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support constitutional claim); James v. U.S. Marshal’s Service, 1995 WL 29580 (N.D. Cal.

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1995) (dismissing complaint without leave to amend because failure to process a grievance did

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not implicate a protected liberty interest); Murray v. Marshall, 1994 WL 245967 (N.D. Cal.

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1994) (concluding that prisoner’s claim that grievance process failed to function properly failed

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to state a claim under § 1983). Prisoners do retain a First Amendment right to petition the

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government through the prison grievance process. See Bradley v. Hall, 64 F.3d 1276, 1279 (9th

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Cir. 1995). Therefore, interference with the grievance process may, in certain circumstances,

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implicate the First Amendment.

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Again, it is unclear whether plaintiff is attempting to challenge any specific

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grievance, or any interference with his first amendment rights. If he is, those allegations are not

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sufficiently clear for the court to evaluate.

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IV. CONCLUSION

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Because it is possible that some of the deficiencies identified in this order may be

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cured by amending the complaint, plaintiff is entitled to leave to amend prior to dismissal of the

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entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc).

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Plaintiff is informed that, as a general rule, an amended complaint supersedes the original

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complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following

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dismissal with leave to amend, all claims alleged in the original complaint which are not alleged

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in the amended complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

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Therefore, if plaintiff amends the complaint, the court cannot refer to the prior pleading in order

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to make plaintiff's amended complaint complete. See Local Rule 220. An amended complaint

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must be complete in itself without reference to any prior pleading. See id.

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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the

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conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See

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Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how

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each named defendant is involved, and must set forth some affirmative link or connection

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between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d

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164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). There can be no

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

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defendant’s actions and the claimed deprivation. Vague and conclusory allegations of official

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participation in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d

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266, 268 (9th Cir. 1982).

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Finally, plaintiff is warned that failure to file an amended complaint within the

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time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at

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1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply

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with Rule 8 may, in the court’s discretion, be dismissed with prejudice pursuant to Rule 41(b).

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See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).
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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s motion to proceed in forma pauperis (Doc. 13) is granted;

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The Clerk of the Court is directed to designate this as a prisoner civil

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rights action pursuant to 42 U.S.C. § 1983;

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Plaintiff’s amended complaint is dismissed with leave to amend; and

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Plaintiff shall file a second amended complaint within 30 days of the date

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of service of this order.

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DATED: October 19, 2016
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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