Ho v. Major et al

Filing 9

ORDER signed by Magistrate Judge Craig M. Kellison on 5/12/2017 DISMISSING CASE WITH LEAVE TO AMEND. Plaintiff to file amended complaint within 30 days of the date of service of this order. (Henshaw, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TRUC N. HO,

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No. 2:16-cv-1260-JAM-CMK-P
Plaintiff,

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vs.

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E. MAJOR, et al.

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ORDER

Defendants.
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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42
U.S.C. § 1983. Pending before the court is plaintiff’s complaint (Doc. 1).
The court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or 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 it: (1) is frivolous or

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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief

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from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover,

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the Federal Rules of Civil Procedure require that complaints contain a “short and plain statement

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of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This means

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that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 1172,
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1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the

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complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it

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rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege

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with at least some degree of particularity overt acts by specific defendants which support the

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claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is

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impossible for the court to conduct the screening required by law when the allegations are vague

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and conclusory.

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I. PLAINTIFF’S ALLEGATIONS
Plaintiff appears to be challenging a prison disciplinary proceeding wherein he

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was found guilty of battery on an inmate with a weapon causing serious bodily injury. Plaintiff

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was assessed with 360 days loss of credit and 15 months in the Secured Housing Unit (SHU). He

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claims his Fourteenth Amendment rights were violated in that there was not “some evidence” to

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support the findings that a weapon was used. However, other than setting out the proceedings

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and the involvement of the various defendants in those proceedings, plaintiff makes no allegation

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as to any specific wrongdoing or errors in the proceedings. He has requested the guilty finding

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be set aside and he be awarded monetary damages.

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II. DISCUSSION
There are several defects in plaintiff’s complaint. First, it appears that plaintiff’s

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claims sound in habeas and are not cognizable as a § 1983 action. When a state prisoner

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challenges the legality of his custody and the relief he seeks is a determination that he is entitled

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to an earlier or immediate release, such a challenge is not cognizable under 42 U.S.C. § 1983 and

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the prisoner’s sole federal remedy is a petition for a writ of habeas corpus. See Preiser v.

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Rodriguez, 411 U.S. 475, 500 (1973); see also Neal v. Shimoda, 131 F.3d 818, 824 (9th Cir.

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1997); Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995) (per curiam). Thus,

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where a § 1983 action seeking monetary damages or declaratory relief alleges constitutional

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violations which would necessarily imply the invalidity of the prisoner’s underlying conviction
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or sentence, or the result of a prison disciplinary hearing resulting in imposition of a sanction

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affecting the overall length of confinement, such a claim is not cognizable under § 1983 unless

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the conviction or sentence has first been invalidated on appeal, by habeas petition, or through

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some similar proceeding. See Heck v. Humphrey, 512 U.S. 477, 483-84 (1994) (concluding that

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§ 1983 claim not cognizable because allegations were akin to malicious prosecution action which

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includes as an element a finding that the criminal proceeding was concluded in plaintiff’s favor);

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Butterfield v. Bail, 120 F.3d 1023, 1024-25 (9th Cir. 1997) (concluding that § 1983 claim not

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cognizable because allegations of procedural defects were an attempt to challenge substantive

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result in parole hearing); cf. Neal, 131 F.3d at 824 (concluding that § 1983 claim was cognizable

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because challenge was to conditions for parole eligibility and not to any particular parole

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determination); cf. Wilkinson v. Dotson, 544 U.S. 74 (2005) (concluding that § 1983 action

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seeking changes in procedures for determining when an inmate is eligible for parole

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consideration not barred because changed procedures would hasten future parole consideration

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and not affect any earlier parole determination under the prior procedures).

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In particular, where the claim involves the loss of good-time credits as a result of

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an adverse prison disciplinary finding, and the resulting loss directly impacts the length of the

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prisoner’s sentence, the claim is not cognizable. See Edwards v. Balisok, 520 U.S. 641, 646

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(1987) (holding that § 1983 claim not cognizable because allegations of procedural defects and a

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biased hearing officer implied the invalidity of the underlying prison disciplinary sanction of loss

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of good-time credits); Blueford v. Prunty, 108 F.3d 251, 255 (9th Cir. 1997); cf. Ramirez v.

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Galaza, 334 F.3d 850, 858 (9th. Cir. 2003) (holding that the favorable termination rule of

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Heck and Edwards does not apply to challenges to prison disciplinary hearings where the

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administrative sanction imposed does not affect the overall length of confinement and, thus, does

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not go to the heart of habeas); see also Wilkerson v. Wheeler, 772 F.3d 834 (9th Cir. 2014)

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(discussing loss of good-time credits); Nettles v. Grounds, 830 F.3d 922, 934-35 (9th Cir. 2016)

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(discussing the impact of a prison disciplinary violations in determining suitability for parole).
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The Ninth Circuit recently addressed the issue of a pro se litigant filing the

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incorrect action to address his claim. “[A] district court may construe a petition for habeas

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corpus to plead a cause of action under § 1983 after notifying and obtaining informed consent

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from the prisoner.” Nettles, 830 F.3d at 936. “‘If the complaint is amendable to conversion on its

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face, meaning that it names the correct defendants and seeks the correct relief, the court may

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recharacterize the petition so long as it warns the pro se litigant of the consequences of the

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conversion and provides an opportunity for the litigant to withdraw or amend his or her

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complaint.’” Id. (quoting Glaus v. Anderson, 408 F.3d 382, 388 (7th Cir. 2005)). However, the

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Court recognized that following enactment of the PLRA, “‘a habeas corpus action and a prisoner

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civil rights suit differ in a variety of respects—such as the proper defendant, filing fees, the

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means of collecting them, and restrictions on future filings—that may make recharacterization

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impossible or, if possible, disadvantageous to the prisoner compared to a dismissal without

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prejudice of his petition for habeas corpus.’” Id. at 935-36 (quoting Robinson v. Sherrod, 631

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F.3d 839, 841 (7th Cir. 2011)). Based on these differences, the court is not inclined to

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recharacterize plaintiff’s civil rights complaint as a habeas petition in this instance.

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As stated above, it appears that plaintiff’s claim sound in habeas. He is

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challenging a prison disciplinary proceeding wherein he lost 360 days of credit and is seeking to

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have the guilty finding set aside and theose credits restored. If plaintiff is a determinately

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sentenced prisoner, or he has not yet reached his minimum eligible parole date (MEPD), a

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finding in his favor would affect the overall length of confinement. However, if plaintiff is an

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indeterminately sentenced prisoner past his MEPD and is currently receiving parole consideration

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hearings, then a restoration of his good time credit would not necessarily affect the length of his

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confinement. There is simply not enough information in the complaint for the court to determine

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whether this case would impact the length of plaintiff’s confinement. This defect may be

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curable, and plaintiff will be provided an opportunity to file an amended complaint if he

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determines, based on the information provided herein, that his claim is appropriately raised in a
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§ 1983 action.

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Assuming that this action is properly filed as a § 1983 action, plaintiff is informed

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that the Due Process Clause protects prisoners from being deprived of life, liberty, or property

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without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a

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claim of deprivation of due process, a plaintiff must allege the existence of a liberty or property

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interest for which the protection is sought. See Ingraham v. Wright, 430 U.S. 651, 672 (1977);

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Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972). Due process protects against the deprivation

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of property where there is a legitimate claim of entitlement to the property. See Bd. of Regents,

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408 U.S. at 577. Protected property interests are created, and their dimensions are defined, by

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existing rules that stem from an independent source – such as state law – and which secure

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certain benefits and support claims of entitlement to those benefits. See id.

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Liberty interests can arise both from the Constitution and from state law. See

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Hewitt v. Helms, 459 U.S. 460, 466 (1983); Meachum v. Fano, 427 U.S. 215, 224-27 (1976);

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Smith v. Sumner, 994 F.2d 1401, 1405 (9th Cir. 1993). In determining whether the Constitution

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itself protects a liberty interest, the court should consider whether the practice in question “. . . is

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within the normal limits or range of custody which the conviction has authorized the State to

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impose.” Wolff, 418 U.S. at 557-58; Smith, 994 F.2d at 1405. Applying this standard, the

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Supreme Court has concluded that the Constitution itself provides no liberty interest in good-

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time credits, see Wolff, 418 U.S. at 557; in remaining in the general population, see Sandin v.

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Conner, 515 U.S. 472, 485-86 (1995); in not losing privileges, see Baxter v. Palmigiano, 425

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U.S. 308, 323 (1976); in staying at a particular institution, see Meachum, 427 U.S. at 225-27; or

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in remaining in a prison in a particular state, see Olim v. Wakinekona, 461 U.S. 238, 245-47

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(1983).

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In determining whether state law confers a liberty interest, the Supreme Court has

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adopted an approach in which the existence of a liberty interest is determined by focusing on the

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nature of the deprivation. See Sandin v. Connor, 515 U.S. 472, 481-84 (1995). In doing so, the
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Court has held that state law creates a liberty interest deserving of protection only where the

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deprivation in question: (1) restrains the inmate’s freedom in a manner not expected from the

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sentence; and (2) “imposes atypical and significant hardship on the inmate in relation to the

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ordinary incidents of prison life.” Id. at 483-84. Prisoners in California have a liberty interest in

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the procedures used in prison disciplinary hearings where a successful claim would not

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necessarily shorten the prisoner’s sentence. See Ramirez v. Galaza, 334 F.3d 850, 853, 859 (9th

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Cir. 2003) (concluding that a due process challenge to a prison disciplinary hearing which did not

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result in the loss of good-time credits was cognizable under § 1983); see also Wilkinson v.

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Dotson, 544 U.S. 74, 82 (2005) (concluding that claims which did not seek earlier or immediate

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release from prison were cognizable under § 1983).
Finally, with respect to prison disciplinary proceedings, due process requires

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prison officials to provide the inmate with: (1) a written statement at least 24 hours before the

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disciplinary hearing that includes the charges, a description of the evidence against the inmate,

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and an explanation for the disciplinary action taken; (2) an opportunity to present documentary

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evidence and call witnesses, unless calling witnesses would interfere with institutional security;

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and (3) legal assistance where the charges are complex or the inmate is illiterate. See Wolff, 418

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U.S. at 563-70. Due process is satisfied where these minimum requirements have been met, see

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Walker v. Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994), and where there is “some evidence” in

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the record as a whole which supports the decision of the hearing officer, see Superintendent v.

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Hill, 472 U.S. 445, 455 (1985). The “some evidence” standard is not particularly stringent and is

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satisfied where “there is any evidence in the record that could support the conclusion reached.”

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Id. at 455-56. However, a due process claim challenging the loss of good-time credits as a result

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of an adverse prison disciplinary finding is not cognizable under § 1983 and must be raised by

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way of habeas corpus. See Blueford v. Prunty, 108 F.3d 251, 255 (9th Cir. 1997).

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In addition, plaintiff names several defendants against whom he cannot state a
claim. Specifically, supervisory personnel are generally not liable under § 1983 for the actions of
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their employees. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (holding that there is no

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respondeat superior liability under § 1983). A supervisor is only liable for the constitutional

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violations of subordinates if the supervisor participated in or directed the violations. See id. The

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Supreme Court has rejected the notion that a supervisory defendant can be liable based on

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knowledge and acquiescence in a subordinate’s unconstitutional conduct because government

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officials, regardless of their title, can only be held liable under § 1983 for his or her own conduct

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and not the conduct of others. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Supervisory

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personnel who implement a policy so deficient that the policy itself is a repudiation of

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constitutional rights and the moving force behind a constitutional violation may, however, be

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liable even where such personnel do not overtly participate in the offensive act. See Redman v.

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Cnty of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc).

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When a defendant holds a supervisory position, the causal link between such

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defendant and the claimed constitutional violation must be specifically alleged. See Fayle v.

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Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir.

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1978). Vague and conclusory allegations concerning the involvement of supervisory personnel

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in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th

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Cir. 1982). “[A] plaintiff must plead that each Government-official defendant, through the

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official’s own individual actions, has violated the constitution.” Iqbal, 662 U.S. at 676.

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Plaintiff names warden Swarthout as a defendant solely in his position as warden.

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There is no indication in the facts alleged in the complaint that defendant Swarthout was

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personally involved in any manner in the alleged violations. Rather, plaintiff simply alleges

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defenant Swarthout was responsible for the conduct of the other defendants. Similarly, plaintiff

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alleges defendants Leau and Wamble were reviewing supervisors of the Rules Violation Report

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(RVR) and the hearing proceedings. Neither were actively involved in either the RVR or the

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hearing. As such, plaintiff cannot state a claim against defendants Swarthout, Leau or Wamble.

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Similarly, to the extent plaintiff is challenging the inmate appeal process, he fails

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to state a claim. Prisoners have no stand-alone due process rights related to the administrative

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grievance process. See Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); see also Ramirez v.

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Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding that there is no liberty interest entitling

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inmates to a specific grievance process). Because there is no right to any particular grievance

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process, it is impossible for due process to have been violated by ignoring or failing to properly

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process grievances. Numerous district courts in this circuit have reached the same conclusion.

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See Smith v. Calderon, 1999 WL 1051947 (N.D. Cal 1999) (finding that failure to properly

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process grievances did not violate any constitutional right); Cage v. Cambra, 1996 WL 506863

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(N.D. Cal. 1996) (concluding that prison officials’ failure to properly process and address

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grievances does not support constitutional claim); James v. U.S. Marshal’s Service, 1995 WL

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29580 (N.D. Cal. 1995) (dismissing complaint without leave to amend because failure to process

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a grievance did not implicate a protected liberty interest); Murray v. Marshall, 1994 WL 245967

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(N.D. Cal. 1994) (concluding that prisoner’s claim that grievance process failed to function

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properly failed to state a claim under § 1983). Prisoners do, however, retain a First Amendment

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right to petition the government through the prison grievance process. See Bradley v. Hall, 64

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F.3d 1276, 1279 (9th Cir. 1995). Therefore, interference with the grievance process may, in

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certain circumstances, implicate the First Amendment.

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There is no indication in this case that plaintiff’s First Amendment rights were

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violated. As the only allegations against defendants Arnold and Voong relate to their

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participation in reviewing plaintiff’s inmate appeal, he cannot state a claim against either of these

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defendants.

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III. CONCLUSION

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Because it is possible that some of the deficiencies identified in this order may be

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cured by amending the complaint, plaintiff is entitled to leave to amend prior to dismissal of the

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entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc).
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Plaintiff is informed that, as a general rule, an amended complaint supersedes the original

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complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following

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dismissal with leave to amend, all claims alleged in the original complaint which are not alleged

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in the amended complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

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Therefore, if plaintiff amends the complaint, the court cannot refer to the prior pleading in order

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to make plaintiff's amended complaint complete. See Local Rule 220. An amended complaint

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must be complete in itself without reference to any prior pleading. See id.

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

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

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

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each named defendant is involved, and must set forth some affirmative link or connection

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between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d

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164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Because some of the defects identified in this order cannot be cured by

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amendment, plaintiff is not entitled to leave to amend as to such claims. Plaintiff, therefore, now

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has the following choices: (1) plaintiff may file an amended complaint which does not allege the

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claims identified herein as incurable, in which case such claims will be deemed abandoned and

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the court will address the remaining claims; or (2) plaintiff may file an amended complaint which

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continues to allege claims identified as incurable, in which case the court will issue findings and

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recommendations that such claims be dismissed from this action, as well as such other orders

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and/or findings and recommendations as may be necessary to address the remaining claims.

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In addition, plaintiff should consider whether his claims are properly brought in a

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§ 1983 action. Based on the above discussion, it would appear that his claims sound in habeas,

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in which case plaintiff may choose to voluntarily dismiss this action without prejudice to

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bringing his claims in a habeas petition.

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Finally, plaintiff is warned that failure to file an amended complaint within the
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time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at

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1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply

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with Rule 8 may, in the court’s discretion, be dismissed with prejudice pursuant to Rule 41(b).

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See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s complaint is dismissed with leave to amend; and

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Plaintiff shall file an amended complaint within 30 days of the date of

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service of this order.

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DATED: May 12, 2017
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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