Crisp v. Duffy et al

Filing 22

ORDER signed by Magistrate Judge Deborah Barnes on 2/5/2018 DISMISSING plaintiff's second amended complaint. Within 30 days, plaintiff shall file a third amended complaint on the form provided with this order. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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OBIE L. CRISP, III,

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No. 2:16-cv-0288 DB P

Plaintiff,
v.

ORDER

BRIAN DUFFY, et al.,
Defendants.

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Plaintiff is a former state prisoner proceeding pro se and in forma pauperis with a civil

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rights action under 42 U.S.C. § 1983. Plaintiff’s second amended complaint is before the court

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for screening. Plaintiff has consented to the jurisdiction of a magistrate judge. (ECF No. 4.) For

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the reasons set forth below, the court recommends dismissal of the second amended complaint

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with leave to amend.

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BACKGROUND
Plaintiff filed his original complaint on February 12, 2016. (ECF No. 1.) Before the court

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had an opportunity to screen that complaint, on April 25, 2016 plaintiff filed a first amended

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complaint. (ECF No. 5.) Plaintiff identified the following defendants: (1) Former Warden Brian

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Duffy; (2) Sr. Hearing Officer (SHO) A. Avalos; (3) SHO A. Green; (4) Chief Disciplinary

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Officer (CDO) P.S. Nowlin; (5) Appeals Coordinators B. Balanza, (6) T. Vang, and (7) J.A.

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Zamora; (8) Correctional Officer Z. Lee; and (9) Captain A. Ladson. He raised claims regarding:
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(1) the conduct of a Rules Violation Proceeding; (2) grievance procedures; (3) the falsification of

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a report; (4) harassment; and (5) retaliation. In an order dated August 2, 2017, the court found

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plaintiff’s complaint stated no cognizable claims besides a potential claim for retaliation against

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defendant Lee. (ECF No. 16.) Plaintiff was given leave to file an amended complaint.

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SCREENING

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I.

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Legal Standards
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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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 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

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

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

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550 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. Dept. 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).

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II.

Has Plaintiff Stated Claims Cognizable under § 1983?

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A. Allegations of the Second Amended Complaint

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In his second amended complaint, plaintiff identifies the following defendants: (1)

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Warden B. Duffy; (2) Captain A. Ladson; (3) Assoc. Warden P.S. Nowlin; (4) Senior Hearing

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Official (“SHO”) A. Green; (5) SHO A. Avalos; (6) Appeals Coordinator (“AC”) Zamora; and

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(6) AC T. Vang. (ECF No. 21 at 2.) Plaintiff’s claims are, again, difficult to discern. As best the

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court can determine, plaintiff contends the following. First, plaintiff states that around June 12,

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2014, there was an “incident of attempted ass[a]ult on plaintiff” when a metal door was slammed
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in his face. He alleges that each of his claims arise from this occurrence. Plaintiff appears to be

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identifying Officer Farias as responsible for the door slamming incident. (Id.) He states that he

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complained to Officers Lee and Reyes about the incident. Plaintiff does not identify Farias, Lee,

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or Reyes as a defendant. He states that he suffered emotional distress as a result. (Id. at 3.)

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Plaintiff next appears to again complain about the conduct of a hearing on a Rules

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Violation Report (“RVR”) and a subsequent loss of privileges. (ECF No. 21 at 3.) He argues,

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apparently in response to the court’s prior order dismissing this claim, that mental distress should

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be considered an atypical and significant hardship for a mentally ill prisoner so that he was

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entitled to certain procedural protections at the hearing. (Id. at 3-4.)

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Plaintiff further appears to be attempting to frame some of his claims as claims for

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retaliation. He alleges that he filed staff complaints about Vang and Zamora that they, in

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violation of prison policy, canceled in retaliation for the fact plaintiff filed the complaints. (ECF

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No. 21 at 4.) He also contends defendant Green unlawfully “took” an extension of time as an act

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of retaliation. (Id.) However, plaintiff does not explain what conduct plaintiff took that Green

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was acting in response to.

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Plaintiff further contends he filed a staff complaint against Officer Howard and Green
retaliated against him by canceling the complaint. (ECF No. 21 at 4-5.)
Plaintiff also contends that defendants’ actions violated his rights to “mandated Prop 57

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lawfull substantive and/or procedural ‘due process’ for early release consideration.1”

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Plaintiff states defendants denied him use of the 602 grievance process in retaliation for
unidentified conduct and in violation of his rights to equal protection. (ECF No. 21 at 5-6.)

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Plaintiff seeks compensatory and punitive damages. (ECF No. 21 at 8.)

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B. Analysis

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As plaintiff was informed previously, a retaliation claim requires “five basic elements: (1)

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An assertion that a state actor took some adverse action against an inmate (2) because of (3) that

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prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First

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Proposition 57 changed California parole eligibility rules by adding a section to article I of the
California Constitution. Cal. Const., art. I, § 32.
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Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.”

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Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted); accord Watson v.

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Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir.

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2009). None of plaintiff’s allegations show what protected action he took, how and why that

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caused one or more of the defendants to act in retaliation, what that defendant did in retaliation, or

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how the defendants’ act of retaliation chilled plaintiff’s exercise of his rights. If plaintiff believes

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he has a claim for retaliation, he must allege facts making each of these elements of the claim

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clear.

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To the extent plaintiff is attempting to re-assert the claim raised in his First Amended

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Complaint that the conduct of his RVR hearing violated due process, the court finds that claim is

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not cognizable under § 1983 for the reasons stated in the court’s August 2 order. Further,

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plaintiff’s contention that his mental distress is an “atypical and significant hardship” that

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justified the application of special procedural protections at the RVR hearing is not supported by

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the law. See Newman v. Brandon, No. 1:10-cv-0687 JLT (PC), 2011 WL 2414421, at *3 (E.D.

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Cal. June 8, 2011) (false documentation resulting in mental anguish and emotional distress is not

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a “freedom of restraint . . . [that] imposes atypical and significant hardship on the inmate”); see

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also Guillen v. Martinez, No. 3:17-cv-0964-CAB-NLS, 2017 WL 2869763, at *3 (S.D. Cal. July

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5, 2017). The court finds plaintiff fails to allege facts from which the court could draw the

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reasonable inference that defendants’ actions “presented a dramatic departure from the basic

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conditions” of plaintiff’s sentence or caused him to suffer an “atypical” or “significant hardship.”

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Sandin v. Conner, 515 U.S. 472, 486 (1995).

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Finally, plaintiff also attempts to raise a claim under Proposition 57, apparently that he

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was denied earlier parole consideration. However, that claim bears no relationship to the other

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claims raised in his complaint. Plaintiff may not assert unrelated claims against unrelated parties in

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the same complaint. Fed. R. Civ. P. 18(a), 20(a)(2); Owens v. Hinsley, 635 F.3d 950, 952 (7th

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Cir. 2011); George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). A plaintiff may bring a claim

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against multiple defendants so long as (1) the claim arises out of the same transaction or

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occurrence, or series of transactions and occurrences, and (2) there are commons questions of law
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or fact. Fed. R. Civ. P. 20(a)(2); Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997); Desert

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Empire Bank v. Insurance Co. of North America, 623 F.3d 1371, 1375 (9th Cir. 1980). To the

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extent plaintiff is alleging a claim under Proposition 57 against the named defendants, he does not

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explain how any actions they took impacted a parole determination.

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C. Conclusion

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Plaintiff’s second amended complaint will be dismissed and plaintiff will be given one,

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final opportunity to file an amended complaint to state claims that are cognizable under § 1983.

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To permit the court to make that determination, and based on the instructions provided to plaintiff

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above and in the prior screening order, plaintiff must do the following in an amended complaint:

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

Plaintiff must use the complaint form provided with this order. He should label it “Third

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Amended Complaint.” Plaintiff should carefully fill out the appropriate information on

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that complaint form.

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Plaintiff may only bring claims against more than one defendant if those claims arise out

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of the same events. That means plaintiff may have to choose to raise one claim against

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multiple defendants or to raise more than one claim against one defendant.

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

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Plaintiff must only include claims that he fully exhausted through the third level of review
before he filed his complaint in this case in February 2016.

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To describe a claim, plaintiff must: (a) identify a person, (b) briefly describe what that

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person did or did not do, and (c) explain why that person’s conduct violated plaintiff’s

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constitutional rights.

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Plaintiff’s amended complaint must contain any claim he wishes to bring in this case.

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Plaintiff may not refer back to filings made previously. Once an amended pleading is

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filed, the original pleading no longer serves any function in the case. E.D. Cal. R. 220.

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Accordingly, IT IS HEREBY ORDERED as follows:

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1. Plaintiff’s second amended complaint (ECF No. 21) is dismissed.

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2. Within thirty days of the date of this order, plaintiff may file a third amended complaint

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on the complaint form provided with this order.

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3. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint form
used in this district.
4. Failure to comply with this order will result in a recommendation that this action be
dismissed.
Dated: February 5, 2018

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DLB:9
DLB1/prisoner-civil rights/cris0288.sac scrn

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