Avery v. Brown

Filing 7

ORDER signed by Magistrate Judge Dale A. Drozd on 03/27/15 denying 6 Motion to Proceed IFP. Plaintiff's complaint is dismissed for failure to state a cognizable claim for relief. This action is closed. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ERIC ARLESTER AVERY,

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Plaintiff,

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No. 2:14-cv-1568 DAD P

v.

ORDER

GOVERNOR JERRY BROWN et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C.

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§ 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. For

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the reasons discussed herein, the court will dismiss this action for failure to state a cognizable

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claim.1
SCREENING REQUIREMENT

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

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1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims

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

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granted, or that seek monetary relief from a defendant who is immune from such relief. See 28

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Plaintiff has consented to Magistrate Judge jurisdiction over this action pursuant to 28 U.S.C. §
636. (Doc. No. 5)
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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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Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only „a short and plain

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statement of the claim showing that the pleader is entitled to relief,‟ in order to „give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.‟” Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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However, in order to survive dismissal for failure to state a claim a complaint must contain more

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than “a formulaic recitation of the elements of a cause of action;” it must contain factual

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allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550

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U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the

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allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S.

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738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all

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doubts in the plaintiff‟s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

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The Civil Rights Act under which this action was filed provides as follows:

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Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the
Constitution . . . shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress.

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42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the

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actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

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Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

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(1976). “A person „subjects‟ another to the deprivation of a constitutional right, within the

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meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or
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omits to perform an act which he is legally required to do that causes the deprivation of which

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complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Moreover, supervisory personnel are generally not liable under § 1983 for the actions of

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their employees under a theory of respondeat superior and, therefore, when a named defendant

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holds a supervisorial position, the causal link between him and the claimed constitutional

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violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979);

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Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations

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concerning the involvement of official personnel in civil rights violations are not sufficient. See

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Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
PLAINTIFF’S COMPLAINT

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In his complaint, plaintiff has identified as defendants Governor Jerry Brown and all of

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the subordinates that work for him. Plaintiff alleges that he is legally entitled to earn good-

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time/work-time credits even though he is housed at a county detention facility instead of a state

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prison. In terms of relief, plaintiff would like his release date adjusted to reflect two days of

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good-time/work-time credit for each one day of confinement he has served disciplinary free.

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(Compl. at 2-4.)

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DISCUSSION

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The court will dismiss this action because plaintiff‟s complaint fails to state a cognizable

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claim for relief. As an initial matter, plaintiff has no constitutional right to be incarcerated at the

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correctional facility of his choice. See Meachum v. Fano, 427 U.S. 215, 225 (1976). Moreover,

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plaintiff has no liberty interest in the opportunity to earn good-time credits and therefore cannot

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state a cognizable due process claim based on his inability to earn good-time credits at a county

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detention facility. See Sandin v. Conner, 515 U.S. 472, 287 (1995); Antonelli v. Sheahan, 81

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F.3d 1422, 1431 (7th Cir. 1996) (county jail inmate failed to state a claim based on denial of

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opportunity to earn good time credits because jail officials had refused to transfer him to a state

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prison); see also Cochran v. Diaz, No. 1:13-cv-00551 AWI GSA HC, 2013 WL 3991991 at *2

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(E.D. Cal. Aug. 2, 2013) (“Although inmates have a liberty interest in good time credit they have

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already earned, no such interest has been recognized in the opportunity to earn good time
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credit.”); Burton v. Adams, No. 1:09-cv-00354 JLT HC, 2010 WL 703182 at * 10 (E.D. Cal. Feb.

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25, 2010) (“Following Sandin, a number of Circuit Courts have held that there is no liberty

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interest, and therefore no due process protection, in the mere opportunity to earn good time

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credits.”). Accordingly, plaintiff‟s complaint fails to state a claim and will be dismissed.

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In light of the nature of his allegations and the claim he is attempting to state, the

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undersigned concludes that it is clear plaintiff cannot cure the deficiencies of his complaint, and

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therefore, dismissal of this civil rights action without leave to amend is appropriate. See Chaset

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v. Fleer/Skybox Int‟l, 300 F.3d 1083, 1088 (9th Cir. 2002) (there is no need to prolong the

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litigation by permitting further amendment where the “basic flaw” in the underlying facts as

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alleged cannot be cured by amendment); Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1039 (9th

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Cir. 2002) (“Because any amendment would be futile, there was no need to prolong the litigation

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by permitting further amendment.”).

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CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff‟s motion to proceed in forma pauperis (Doc. No. 6) is denied;

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2. Plaintiff‟s complaint is dismissed for failure to state a cognizable claim for relief; and

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3. This action is closed.

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Dated: March 27, 2015

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DAD:9
aver1568.56

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