Davis v. Zamora et al

Filing 5

ORDER signed by Magistrate Judge Kendall J. Newman on 2/26/15 ORDERING that Plaintiffs request for leave to proceed in forma pauperis is granted. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff's complaint is DISMISSED with 30 days to file an amended complaint.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SHELDON DAVIS,

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No. 2:15-cv-0010 KJN P

Plaintiff,
v.

ORDER

J.A. ZAMORA, et al.,

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Defendants.

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

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

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§ 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.

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§ 636(b)(1). Plaintiff consented to proceed before the undersigned for all purposes. See 28

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U.S.C. § 636(c).

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Plaintiff submitted a declaration that makes the showing required by 28 U.S.C.
§ 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action.

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28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing

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fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will

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direct the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account

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and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly

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payments of twenty percent of the preceding month’s income credited to plaintiff’s trust account.

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These payments will be forwarded by the appropriate agency to the Clerk of the Court each time

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the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C.

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§ 1915(b)(2).

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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 when 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), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.

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2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably

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meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at

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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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In order to survive dismissal for failure to state a claim, a complaint must contain more than “a

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

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sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555.

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However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v.
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Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal

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quotations marks omitted). In reviewing a complaint under this standard, the court must accept as

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true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the

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pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236

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(1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).

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Plaintiff contends that defendant Yang disregarded a prison memo providing that no

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volunteer inmates were allowed in the kitchen. Yang allegedly permitted inmate Clark, who

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suffers from a mental illness, to volunteer in the kitchen, and Clark allegedly attacked plaintiff in

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the kitchen. Plaintiff alleges that defendants Yang and Stratton tried to cover up their violation of

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the prison policy by issuing plaintiff a rules violation report (“RVR”) for fighting, despite inmate

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Clark telling defendants Yang and Stratton that Clark attacked plaintiff unprovoked. Plaintiff

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alleges that Stratton signed the RVR and omitted the information about Clark. Plaintiff contends

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that defendant Schultz covered this up by holding the RVR hearing on November 13, 2013, just

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five days after the RVR issued. Plaintiff also contends that he was denied the right to call

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witnesses at the RVR hearing. Further, plaintiff alleges that defendants Zamora and Briggs

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attempted to stop the appeals process at the final level, seeking to help defendants Yang, Stratton,

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and Schultz cover up the non-volunteer directive. Plaintiff contends that defendant Zamora

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returned plaintiff’s third level appeal seeking more documentation, but when plaintiff complied,

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defendant Zamora screened out the appeal as untimely.

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1. Challenge to Rules Violation Report

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Plaintiff’s central allegation appears to be a fraudulent disciplinary process. In Edwards v.

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Balisok, 520 U.S. 641, 644 (1997), the United States Supreme Court applied the doctrine

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articulated in Heck v. Humphrey, 512 U.S. 477, 487 (1994), to prison disciplinary hearings. In

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Heck, the Court held that a state prisoner’s claim for damages for unconstitutional conviction or

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imprisonment is not cognizable under 42 U.S.C. § 1983 if a judgment in favor of plaintiff would

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necessarily imply the invalidity of his conviction or sentence, unless the prisoner can demonstrate

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that the conviction or sentence has previously been invalidated. Heck, 512 U.S. at 487. In

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applying the principle to the facts of Balisok, the Court held that a claim challenging the
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procedures used in a prison disciplinary hearing, even if such a claim seeks money damages and

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no injunctive relief, is not cognizable under § 1983 if the nature of the inmate’s allegations are

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such that, if proven, would necessarily imply the invalidity of the result of the prison disciplinary

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hearing. Balisok, 520 U.S. at 646. Because such a challenge, if successful, would invalidate the

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duration of the inmate’s confinement, it is properly brought as a habeas corpus petition and not

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under § 1983. Heck, 512 U.S. at 487; Preiser v. Rodriguez, 411 U.S. 475, 500 (1973).

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Although the specific facts of Balisok involved allegations of deceit and bias on the part

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of a hearing officer, the Court’s reasoning applies to any claim which, if proven, would have the

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effect of invalidating the result of a disciplinary hearing. The Ninth Circuit has applied the

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Balisok rule to a case in which a prisoner sought damages based on allegations that prison

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officials relied on false information to find him ineligible for parole. Butterfield v. Bail, 120 F.3d

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1023 (9th Cir. 1997). Because the claim necessarily implied the invalidity of the prisoner’s

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continued confinement, the claim could not accrue until the conviction or sentence had been

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invalidated. Id.

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Here, plaintiff’s core factual allegations are that he was convicted based upon charges that

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were false. Plaintiff states he was found guilty of fighting, but contends that inmate Clark struck

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plaintiff because Clark is mentally ill, and that plaintiff did not provoke Clark. To the extent

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plaintiff disputes that he fought with Clark, judgment in his favor would necessarily implicate the

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validity of the guilty finding in the rules violation report. Because plaintiff’s claim necessarily

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implies the invalidity of his continued confinement as a result of the disciplinary hearing, his

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claim will not accrue until the conviction or sentence has been invalidated. In other words,

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plaintiff cannot challenge the rules violation report in a civil rights action unless and until the

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prison disciplinary has been invalidated through a petition for writ of habeas corpus.

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2. Procedural Due Process

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Before sanctions can be imposed in a prison disciplinary hearing, a prisoner must be

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accorded basic procedural safeguards: 1) advance written notice of the charges; 2) a “written

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statement by the fact finders as to the evidence relied on and reasons for the disciplinary action”;

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3) an opportunity to present witnesses and documentary evidence in his defense if “to do so will
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not be unduly hazardous to institutional safety or correctional goals.” Wolff v. McDonnell, 418

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U.S. 539, 564-66 (internal citations and quotation marks omitted). Here, plaintiff claims that he

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was denied the right to call witnesses, but he fails to specifically identify the defendant or

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defendants who denied him such right. Thus, plaintiff is given leave to amend to identify the

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defendant or defendants who denied him due process during the RVR hearing.

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3. Administrative Appeals Process

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Plaintiff appears to allege that some defendants are liable based on their role in the inmate

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grievance process. However, prisoners do not have a “separate constitutional entitlement to a

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specific grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003), citing

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Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). Even the non-existence of, or the failure of

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prison officials to properly implement, an administrative appeals process within the prison system

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does not raise constitutional concerns. Mann, 855 F.2d at 640 (holding that there is no liberty

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interest entitling inmates to a specific grievance process). Put another way, prison officials are

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not required under federal law to process inmate grievances in a specific way or to respond to

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them in a favorable manner. Because there is no right to any particular grievance process,

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plaintiff cannot state a cognizable civil rights claim for a violation of his due process rights based

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on allegations that prison officials ignored or failed to properly process grievances. See, e.g.,

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Wright v. Shannon, 2010 WL 445203 at *5 (E.D. Cal. Feb. 2, 2010) (plaintiff’s allegations that

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prison officials denied or ignored his inmate appeals failed to state a cognizable claim under the

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First Amendment); Towner v. Knowles, 2009 WL 4281999 at *2 (E.D. Cal. Nov. 20, 2009)

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(plaintiff’s allegations that prison officials screened out his inmate appeals without any basis

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failed to indicate a deprivation of federal rights); Williams v. Cate, 2009 WL 3789597 at *6 (E.D.

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Cal. Nov.10, 2009) (“Plaintiff has no protected liberty interest in the vindication of his

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administrative claims.”). Thus, plaintiff should not include such claims in any amended

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complaint.

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4. Conclusion

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

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unable to determine whether the current action is frivolous or fails to state a claim for relief. The
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court has determined that the complaint does not contain a short and plain statement as required

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by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a

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complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones

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v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least

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some degree of particularity overt acts which defendants engaged in that support plaintiff’s claim.

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Id. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2), the

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complaint must be dismissed. The court will, however, grant leave to file an amended complaint.

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

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about which he complains resulted in a deprivation of plaintiff’s constitutional rights. Rizzo v.

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Goode, 423 U.S. 362, 371 (1976). Also, the complaint must allege in specific terms how each

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named defendant is involved. Id. There can be no liability under 42 U.S.C. § 1983 unless there is

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some affirmative link or connection between a defendant’s actions and the claimed deprivation.

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

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(9th Cir. 1978). Furthermore, vague and conclusory allegations of official participation in civil

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

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

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

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

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

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

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pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an

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original complaint, each claim and the involvement of each defendant must be sufficiently

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alleged.

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

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1. Plaintiff’s request for leave to proceed in forma pauperis is granted.

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff

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is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.

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§ 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the
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Director of the California Department of Corrections and Rehabilitation filed concurrently

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herewith.

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3. Plaintiff’s complaint is dismissed.

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4. Within thirty days from the date of this order, plaintiff shall complete the attached

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Notice of Amendment and submit the following documents to the court:

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a. The completed Notice of Amendment; and

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b. An original and one copy of the Amended Complaint.

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Plaintiff’s amended complaint shall comply with the requirements of the Civil Rights Act, the

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Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must

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also bear the docket number assigned to this case and must be labeled “Amended Complaint.”

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Failure to file an amended complaint in accordance with this order may result in the dismissal of

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this action.

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Dated: February 26, 2015

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SHELDON DAVIS,

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No. 2:15-cv-0010 KJN P

Plaintiff,
v.

NOTICE OF AMENDMENT

J.A. ZAMORA, et al.,

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Defendants.

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Plaintiff hereby submits the following document in compliance with the court's order
filed______________.
_____________

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Amended Complaint

DATED:
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Plaintiff