McCrea v. Johnson, et al.

Filing 6

ORDER signed by Magistrate Judge Carolyn K. Delaney on 07/29/15 granting 2 Motion to Proceed IFP. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees shall be collected in accordance with the court's CDC order filed concurrently herewith. The complaint is dismissed. Plaintiff is granted 30 days from the date of service of this order to file an amended complaint. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TERRENCE McCREA,

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No. 2:15-cv-1487 JAM CKD P

Plaintiff,
v.

ORDER

B. JOHNSON, et al.,

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Defendants.

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I. Introduction

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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. This

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proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

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Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C.

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§1915(a). Accordingly, the request to proceed in forma pauperis will be granted.

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Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§

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1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the

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initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court.

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Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding

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month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by

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the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account
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exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

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II. Screening

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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 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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Fed. R. Civ. P. 8 sets forth general rules of notice pleading in the federal courts. See

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Swierkiewicz v. Sorema, 534 U.S. 506 (2002). Complaints are required to set a forth (1) the

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grounds upon which the court’s jurisdiction rests, (2) a short and plain statement of the claim

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showing entitlement to relief; and (3) a demand for the relief plaintiff seeks. Rule 8 requires only

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“sufficient allegations to put defendants fairly on notice of the claims against them.” McKeever

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v. Block, 932 F.2d 795, 798 (9th Cir. 1991). Even if the factual elements of the cause of action

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are present, but are scattered throughout the complaint and are not organized into a “short and

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plain statement of the claim,” dismissal for failure to satisfy Rule 8(a)(2) is proper. McHenry v.

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Renne, 84 F.3d 1172, 1178 (9th Cir. 1996).

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Plaintiff alleges that on April 29, 2015, the morning after he mailed a letter to his sister, he

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was handcuffed by non-defendant prison guards and asked about the letter. The guards told him

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that defendant Lieutenant Johnson would “make the call” as to whether the letter posed a threat.

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After reading the letter, Johnson sent plaintiff to Administrative Segregation for eight days,

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though plaintiff did not receive “any write up as to any rule violation.” (ECF No. 1 at 11.) His
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personal and legal property was seized and not returned. (Id.) Plaintiff’s requests to have his

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letter and his property returned were ignored. (Id.) Plaintiff asserts that Johnson violated his

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federal right to due process and various California regulations governing, e.g., inmate mail. (Id.

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at 11-12.) While plaintiff makes other allegations about the inmate grievance system and racial

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discrimination, the gravamen of the complaint seems to be that defendants improperly seized his

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“personal and legal property.” (See id. at 10 (seeking relief in the form of $3,500 and return of

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seized property)).

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First, the complaint does not comply with the Rule 8 requirement of a short and plain

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statement of the claim showing entitlement to relief. Aside from invoking his due process rights

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in connection with the seizure of his property, plaintiff does not make clear what federal claims

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he seeks to bring or what federal rights allegedly have been violated. As plaintiff will be granted

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one opportunity to amend, the court explains below why his current allegations fail to make out a

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claim under § 1983.

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When placement in administrative segregation impairs an inmate's liberty interest, the Due

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Process Clause requires prison officials to provide the inmate with “some notice of the charges

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against him and an opportunity to present his views to the prison official charged with deciding

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whether to transfer him to administrative segregation.” Bruce v. Ylst, 351 F.3d 1283, 1287 (9th

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Cir. 2003). In addition to the notice and opportunity for presentation requirements, due process

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requires that there be an evidentiary basis for the prison officials’ decision to place an inmate in

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segregation for administrative reasons. Superintendent v. Hill, 472 U.S. 445, 455 (1985). This

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standard is met if there is “some evidence” from which the conclusion of the administrative

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tribunal could be deduced. Hill, 472 U.S. at 455. The evidence relied upon must have “some

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indicia of reliability.” See Madrid v. Gomez, 889 F. Supp. 1146, 1273–74 (N.D. Cal. 1995).

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Here, plaintiff’s allegations concerning his placement in ASU are too vague and

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conclusory to state a claim under this standard. Moreover, plaintiff attaches a portion of an

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“Administrative Segregation Unit Placement Notice” dated April 29, 2015 and signed by

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defendant Johnson and plaintiff. It describes the “circumstances which support the reason(s) for

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placement” as follows:
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You are remanded to administrative segregation on April 29, 2015
based on being determined a potential threat to the safety of a
person. Specifically, a letter was discovered in the outgoing mail
describing your intent and ability to commit the murder of another
inmate. No specific inmate was identified. In subsequent
interview, you admitted to authoring and sending the letter. Your
placement will be reviewed by a manager within one business day
and by Institutional Classification Committee within ten days for
appropriate program and housing consideration.

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(ECF No. 1 at 9.) This would seem to belie plaintiff’s claim that he was not given notice of why

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he was being placed in ASU. See Steckman v. Hart Brewing Co., Inc., 143 F.3d 1293, 1295-96

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(9th Cir. 1998) (on Rule 12(b)(6) motion, court is “not required to accept as true conclusory

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allegations which are contradicted by documents referred to in the complaint.”)

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Insofar as plaintiff’s claims are based on state administrative regulations, they are not

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actionable under § 1983. Cornejo v. County of San Diego, 504 F.3d 853, 855 n. 3 (9th Cir. 2007)

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(“[A] claim for violation of state law is not cognizable under § 1983.”)

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As to Warden McComber, supervisory personnel are generally not liable under §1983 for

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

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

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

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Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941

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(1979). Plaintiff has not alleged a causal link between McComber and any constitutional

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violation.

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For these reasons, plaintiff’s complaint will be dismissed for failure to state a claim.

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However, plaintiff will have one opportunity to amend.

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III. Leave to Amend

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

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

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

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

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

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Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980);
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Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory

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allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of

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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 is because, as a

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general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375

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F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no

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longer serves any function in the case. Therefore, in an amended complaint, as in an original

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complaint, each claim and the involvement of each defendant must be sufficiently 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 (ECF No. 2) is granted.

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

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shall be collected and paid in accordance with this court’s order to the Director of the California

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Department of Corrections and Rehabilitation filed concurrently herewith.

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3. Plaintiff’s complaint is dismissed.

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4. Plaintiff is granted thirty days from the date of service of this order to file an amended

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complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil

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Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number

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assigned this case and must be labeled “Amended Complaint”; plaintiff must file an original and

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two copies of the amended complaint; failure to file an amended complaint in accordance with

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this order will result in a recommendation that this action be dismissed.

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Dated: July 29, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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