Brown v. Godwin

Filing 10

ORDER signed by Magistrate Judge Allison Claire on 5/3/2017 GRANTING 9 Motion to Proceed IFP and DISMISSING 4 Complaint with leave to amend within 30 days. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in accordance with the order to the CDCR filed concurrently herewith. (Henshaw, R) Modified on 5/3/2017 (Donati, J).

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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 LANCE L. BROWN, 12 Plaintiff, 13 14 No. 2:15-cv-01300 WBS AC P v. ORDER R. GODWIN, 15 Defendant. 16 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 17 18 U.S.C. § 1983. In addition to filing a complaint (ECF No. 4), plaintiff has filed an application to 19 proceed in forma pauperis under 28 U.S.C. § 1915. ECF No. 9. 20 I. Application to Proceed In Forma Pauperis Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). 21 22 Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect 23 and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. § 24 1915(b)(1) and (2). 25 26 II. Screening Requirements The court is required to screen complaints brought by prisoners seeking relief against a 27 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 28 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 1 1 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 2 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 3 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 4 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 5 Cir. 1984). “[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 6 meritless legal theories or whose factual contentions are clearly baseless.” Jackson v. Arizona, 7 885 F.2d 639, 640 (9th Cir. 1989) (citation and internal quotations omitted), superseded by statute 8 on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Neitzke, 490 9 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, 10 11 has an arguable legal and factual basis. Id. “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 12 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 13 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 14 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 15 However, in order to survive dismissal for failure to state a claim, a complaint must contain more 16 than “a formulaic recitation of the elements of a cause of action;” it must contain factual 17 allegations sufficient “to raise a right to relief above the speculative level.” Id. (citations 18 omitted). “[T]he pleading must contain something more . . . than . . . a statement of facts that 19 merely creates a suspicion [of] a legally cognizable right of action.” Id. (alteration in original) 20 (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §1216 (3d 21 ed. 2004)). 22 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 23 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell 24 Atl. Corp., 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 25 content that allows the court to draw the reasonable inference that the defendant is liable for the 26 misconduct alleged.” Id. (citing Bell Atl. Corp., 550 U.S. at 556). In reviewing a complaint 27 under this standard, the court must accept as true the allegations of the complaint in question, 28 Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), as well as construe the pleading 2 1 in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, Jenkins v. 2 McKeithen, 395 U.S. 411, 421 (1969). 3 III. 4 Screening Order Plaintiff alleges that, on March 10, 2015, he acted on an order from his work supervisor 5 and entered a store room where inmate clothing was kept. ECF No. 4 at 3. He claims that 6 defendant learned of his incursion into the room and, rather than confronting him about it, elected 7 to “thrash” plaintiff’s cell while plaintiff was at pill call. Id. at 4. Defendant allegedly left 8 plaintiff’s cell in a state of “utter disarray” with personal property strewn across the floor. Id. 9 After returning to his cell, plaintiff confronted defendant. Id. He asked why his cell had 10 been violently searched and defendant indicated that she was displeased that plaintiff had entered 11 the store room without her permission. Id. The two argued and defendant eventually accused 12 plaintiff of threatening her. Id. Plaintiff claims that he was assessed a false disciplinary violation 13 based on this exchange. Id. 14 15 The court has reviewed these claims and, for the reasons stated below, finds that neither is cognizable. 16 A. 17 The Supreme Court has held that cell searches which are conducted solely as a means of Cell Search 18 “calculated harassment” can violate the Eighth Amendment. Hudson v. Palmer, 468 U.S. 517, 19 530 (1984). Courts have found such violations where an inmate has been subjected to frequent 20 cell searches. See Scher v. Engelke, 943 F.2d 921, 923-24 (8th Cir. 1991) (finding an Eighth 21 Amendment violation where inmate was subject to “frequent retaliatory cell searches, some of 22 which resulted in the violent dishevelment of [the inmate’s] cell.”). By contrast, courts are 23 disinclined to find an Eighth Amendment violation where an inmate alleges only a single, 24 harassing search. See Vigliotto v. Terry, 873 F.2d 1201, 1203 (9th Cir. 1989). This is because 25 the protection against cruel and unusual punishment extends not to inconveniences or discomfort 26 but only to extreme deprivations which “deny the minimal civilized measure of life’s necessities.” 27 Hudson v. McMillian, 503 U.S. 1, 8-9 (1992). 28 //// 3 1 2 Here, plaintiff only alleges that he was subject to one search. In light of Vigliotto, the court finds that this is insufficient to state an Eighth Amendment claim. 3 B. 4 Inmates do not have any due process right to be free from false disciplinary charges. See False Disciplinary 5 Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986) (inmates have “no constitutionally 6 guaranteed immunity from being falsely or wrongly accused of conduct which may result in the 7 deprivation of a protected liberty interest,” provided that they are “not . . . deprived of a protected 8 liberty interest without due process of law.”); Sprouse v. Babcock, 870 F.2d 450, 452 (8th 9 Cir.1989) (“Sprouse’s claims based on the falsity of the charges and the impropriety of Babcock’s 10 involvement in the grievance procedure, standing alone, do not state constitutional claims.”). 11 Accordingly, plaintiff’s claim that defendant wrote him a false disciplinary after their argument 12 fails. 13 IV. Leave to Amend 14 Plaintiff will be granted leave to file an amended complaint in which he can reattempt to 15 allege a cognizable legal theory against a proper defendant and sufficient facts in support of that 16 theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must 17 afford pro se litigants an opportunity to amend to correct any deficiency in their complaints). 18 Should plaintiff choose to file an amended complaint, the amended complaint must clearly set 19 forth the claims and allegations against each defendant. Any amended complaint must cure the 20 deficiencies identified above and also observe the following: 21 Any amended complaint must identify as a defendant only persons who personally 22 participated in a substantial way in depriving him of a federal constitutional right. Johnson v. 23 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a 24 constitutional right if he does an act, participates in another’s act or omits to perform an act he is 25 legally required to do that causes the alleged deprivation). 26 It must also contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a). 27 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. George 28 v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 4 1 Any amended complaint must be written or typed so that it so that it is complete in itself 2 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 3 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 4 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 5 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 6 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 7 1967)). 8 9 Finally, any amended complaint should be as concise as possible in fulfilling the above requirements. Fed. R. Civ. P. 8(a). 10 V. 11 12 Summary of the Order You have been granted in forma pauperis status and will not have to pay the entire filing fee immediately. 13 The current complaint does not state a valid claim and is being dismissed. The single 14 harassing search you allege is not enough to state an Eighth Amendment violation. Instead, 15 courts have recognized Eighth Amendment cell search claims where an inmate alleges that he has 16 been subject to multiple, frequent harassing searches. 17 18 Your claim based on the false disciplinary is being dismissed because inmates have no due process right to be free from false or mistaken disciplinary charges. 19 You are being given an opportunity to submit an amended complaint in which you can try 20 to state viable claims. You must submit that complaint to the court within thirty days of this 21 order’s filing date if you want this action to proceed. 22 VI. 23 Conclusion Accordingly, IT IS HEREBY ORDERED that: 24 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 9) is granted. 25 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected 26 in accordance with the notice to the California Department of Corrections and 27 Rehabilitation filed concurrently herewith. 28 //// 5 1 3. The complaint (ECF No. 4) is dismissed with leave to amend within 30 days. The 2 complaint must bear the docket number assigned to this case and be titled 3 “Amended Complaint.” Failure to comply with this order will result in dismissal 4 of this action for failure to prosecute. If plaintiff files an amended complaint 5 stating a cognizable claim the court will proceed with service of process by the 6 United States Marshal. 7 DATED: May 3, 2017 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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