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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LANCE L. BROWN,

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Plaintiff,

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No. 2:15-cv-01300 WBS AC P

v.

ORDER

R. GODWIN,

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Defendant.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. In addition to filing a complaint (ECF No. 4), plaintiff has filed an application to

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proceed in forma pauperis under 28 U.S.C. § 1915. ECF No. 9.

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I.

Application to Proceed In Forma Pauperis
Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2).

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Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect

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and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. §

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1915(b)(1) and (2).

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II.

Screening Requirements
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 where 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). “[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.” Jackson v. Arizona,

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885 F.2d 639, 640 (9th Cir. 1989) (citation and internal quotations omitted), superseded by statute

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on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Neitzke, 490

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U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded,

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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

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claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of

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what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550

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U.S. 544, 555 (2007) (alteration in original) (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.” Id. (citations

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omitted). “[T]he pleading must contain something more . . . than . . . a statement of facts that

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merely creates a suspicion [of] a legally cognizable right of action.” Id. (alteration in original)

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(quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §1216 (3d

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ed. 2004)).

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“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

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relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

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Atl. Corp., 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Id. (citing Bell Atl. Corp., 550 U.S. at 556). In reviewing a complaint

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under this standard, the court must accept as true the allegations of the complaint in question,

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Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), as well as construe the pleading
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in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, Jenkins v.

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McKeithen, 395 U.S. 411, 421 (1969).

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III.

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Screening Order
Plaintiff alleges that, on March 10, 2015, he acted on an order from his work supervisor

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and entered a store room where inmate clothing was kept. ECF No. 4 at 3. He claims that

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defendant learned of his incursion into the room and, rather than confronting him about it, elected

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to “thrash” plaintiff’s cell while plaintiff was at pill call. Id. at 4. Defendant allegedly left

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plaintiff’s cell in a state of “utter disarray” with personal property strewn across the floor. Id.

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After returning to his cell, plaintiff confronted defendant. Id. He asked why his cell had

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been violently searched and defendant indicated that she was displeased that plaintiff had entered

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the store room without her permission. Id. The two argued and defendant eventually accused

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plaintiff of threatening her. Id. Plaintiff claims that he was assessed a false disciplinary violation

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based on this exchange. Id.

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The court has reviewed these claims and, for the reasons stated below, finds that neither is
cognizable.

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A.

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The Supreme Court has held that cell searches which are conducted solely as a means of

Cell Search

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“calculated harassment” can violate the Eighth Amendment. Hudson v. Palmer, 468 U.S. 517,

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530 (1984). Courts have found such violations where an inmate has been subjected to frequent

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cell searches. See Scher v. Engelke, 943 F.2d 921, 923-24 (8th Cir. 1991) (finding an Eighth

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Amendment violation where inmate was subject to “frequent retaliatory cell searches, some of

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which resulted in the violent dishevelment of [the inmate’s] cell.”). By contrast, courts are

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disinclined to find an Eighth Amendment violation where an inmate alleges only a single,

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harassing search. See Vigliotto v. Terry, 873 F.2d 1201, 1203 (9th Cir. 1989). This is because

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the protection against cruel and unusual punishment extends not to inconveniences or discomfort

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but only to extreme deprivations which “deny the minimal civilized measure of life’s necessities.”

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Hudson v. McMillian, 503 U.S. 1, 8-9 (1992).

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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.

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B.

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Inmates do not have any due process right to be free from false disciplinary charges. See

False Disciplinary

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Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986) (inmates have “no constitutionally

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guaranteed immunity from being falsely or wrongly accused of conduct which may result in the

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deprivation of a protected liberty interest,” provided that they are “not . . . deprived of a protected

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liberty interest without due process of law.”); Sprouse v. Babcock, 870 F.2d 450, 452 (8th

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Cir.1989) (“Sprouse’s claims based on the falsity of the charges and the impropriety of Babcock’s

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involvement in the grievance procedure, standing alone, do not state constitutional claims.”).

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Accordingly, plaintiff’s claim that defendant wrote him a false disciplinary after their argument

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fails.

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IV.

Leave to Amend

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Plaintiff will be granted leave to file an amended complaint in which he can reattempt to

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allege a cognizable legal theory against a proper defendant and sufficient facts in support of that

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theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must

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afford pro se litigants an opportunity to amend to correct any deficiency in their complaints).

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Should plaintiff choose to file an amended complaint, the amended complaint must clearly set

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forth the claims and allegations against each defendant. Any amended complaint must cure the

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deficiencies identified above and also observe the following:

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Any amended complaint must identify as a defendant only persons who personally

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participated in a substantial way in depriving him of a federal constitutional right. Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a

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constitutional right if he does an act, participates in another’s act or omits to perform an act he is

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legally required to do that causes the alleged deprivation).

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It must also contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a).

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Plaintiff may not change the nature of this suit by alleging new, unrelated claims. George

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v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).
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Any amended complaint must be written or typed so that it so that it is complete in itself

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without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended

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complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the

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earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114

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F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter

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being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

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1967)).

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Finally, any amended complaint should be as concise as possible in fulfilling the above
requirements. Fed. R. Civ. P. 8(a).

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V.

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Summary of the Order
You have been granted in forma pauperis status and will not have to pay the entire filing

fee immediately.

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The current complaint does not state a valid claim and is being dismissed. The single

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harassing search you allege is not enough to state an Eighth Amendment violation. Instead,

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courts have recognized Eighth Amendment cell search claims where an inmate alleges that he has

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been subject to multiple, frequent harassing searches.

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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.

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You are being given an opportunity to submit an amended complaint in which you can try

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to state viable claims. You must submit that complaint to the court within thirty days of this

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order’s filing date if you want this action to proceed.

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VI.

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Conclusion
Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s application to proceed in forma pauperis (ECF No. 9) is granted.

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2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected

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in accordance with the notice to the California Department of Corrections and

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Rehabilitation filed concurrently herewith.

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3. The complaint (ECF No. 4) is dismissed with leave to amend within 30 days. The

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complaint must bear the docket number assigned to this case and be titled

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“Amended Complaint.” Failure to comply with this order will result in dismissal

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of this action for failure to prosecute. If plaintiff files an amended complaint

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stating a cognizable claim the court will proceed with service of process by the

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United States Marshal.

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DATED: May 3, 2017

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