Keel v. Foulk et al

Filing 7

ORDER signed by Magistrate Judge Edmund F. Brennan on 11/14/2017 GRANTING plaintiff's 2 request to proceed IFP. Plaintiff shall pay the $350.00 filing fee in accordance with the concurrent CDCR order. The complaint is DISMISSED with leave to amend within 30 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICKY RAY KEEL,

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No. 2:16-cv-1946-EFB P

Plaintiff,

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v.

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F. FOULK, et al.,

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ORDER GRANTING IFP AND SCREENING
COMPLAINT PURSUANT TO 28 U.S.C. §
1915A
Defendants.

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Plaintiff, a state prisoner proceeding without counsel in an action brought under 42 U.S.C.

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§ 1983, has filed an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
I.

Request 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 Requirement and Standards

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion

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of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which
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relief may be granted,” or “seeks monetary relief from a defendant who is immune from such

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relief.” Id. § 1915A(b).

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A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a)

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of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and

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plain 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 Atl. Corp. v.

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Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)).

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While the complaint must comply with the “short and plaint statement” requirements of Rule 8,

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its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556

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U.S. 662, 679 (2009).

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To avoid dismissal for failure to state a claim a complaint must contain more than “naked

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assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of

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action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of

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a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at

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678.

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Furthermore, a claim upon which the court can grant relief must have facial plausibility.

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Twombly, 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.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a

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claim upon which relief can be granted, the court must accept the allegations as true, Erickson v.

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Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the

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plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

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III.

Screening Order

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According to the complaint (ECF No. 1), plaintiff was found guilty of a rules violation

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report which resulted in his placement in administrative segregation for nine months, a loss of

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visits for one to two years, a freeze on his inmate trust account, and a loss of behavior credits.

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The initial rules violation report charged plaintiff with conspiracy to introduce a controlled

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substance into prison. In a subsequently issued rules violation report, plaintiff was charged with
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conspiracy to introduce a controlled substance into prison with the intent to distribute. Plaintiff

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claims he did not know why he was even been investigated and did not know how to prepare a

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defense to the new charge. He speculates that defendant Fleming may have investigated him in

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retaliation for his filing of a lawsuit against prison officials. Plaintiff also alleges, vaguely, that

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“time constraints” were not met, that he was denied the opportunity to ask certain questions at his

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hearing, and that several of the documents related to the rules violation reports contained false

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statements. According to the complaint, “[t]he whole RVR process was totally procedurally

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defective, their [sic] was no way Plaintiff could win this.” ECF No 1 at 9.1 Plaintiff claims he

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was denied his right to due process and equal protection in violation of the Fourteenth

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Amendment. Under the applicable standards discussed below, the allegations are not sufficient to

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state a proper claim for relief. To proceed, plaintiff must file an amended complaint.

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1)

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that a right secured by the Constitution or laws of the United States was violated, and (2) that the

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alleged violation was committed by a person acting under the color of state law. West v. Atkins,

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487 U.S. 42, 48 (1988). An individual defendant is not liable on a civil rights claim unless the

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facts establish the defendant’s personal involvement in the constitutional deprivation or a causal

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connection between the defendant’s wrongful conduct and the alleged constitutional deprivation.

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See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44

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(9th Cir. 1978). That is, plaintiff may not sue any official on the theory that the official is liable

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for the unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 556 U.S. 662, 679

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(2009).

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To state a claim for violation of the right to procedural due process, plaintiff must allege

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facts showing: “(1) a deprivation of a constitutionally protected liberty or property interest, and

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(2) a denial of adequate procedural protections.” Kildare v. Saenz, 325 F.3d 1078, 1085 (9th Cir.

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2003). In the context of a disciplinary proceeding where a liberty interest is at stake, due process

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requires that “some evidence” support the disciplinary decision. Superintendent v. Hill, 472 U.S.

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This and subsequent page number citations to plaintiff’s complaint are to the page
number reflected on the court’s CM/ECF system and not to page numbers assigned by plaintiff.
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445, 455 (1985). The inmate must also receive: “(1) advance written notice of the disciplinary

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charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to

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call witnesses and present documentary evidence in his defense; and (3) a written statement by

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the factfinder of the evidence relied on and the reasons for the disciplinary action.” Id. at 454

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(citing Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974).

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Plaintiff fails to properly state a due process claim because the allegations do not show

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that his punishment implicated a protected liberty interest and that he was denied any of the

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necessary procedural protections set forth in Wolff. See Medina v. Dickinson, No. 2:10-cv-0502-

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LKK-AC, 2013 U.S. Dist. LEXIS 9166, at *26-27 (E.D. Cal. Jan. 23, 2013) (nine months in

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administrative segregation, accompanied by a loss of visiting privileges and access to educational

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and vocational programs does not trigger due process protections); Christ v. Blackwell, No. 2:10-

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cv-0760-EFB P, 2016 U.S. Dist. LEXIS 102825, *37-38 (E.D. Cal. Aug. 3, 2016) (a loss of

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credits that does not result in a shorter sentence does not give rise to a liberty interest). While

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plaintiff does have a protected property interest in his prison trust account, Quick v. Jones, 754

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F.2d 1521, 1523 (9th Cir. 1985), his allegations are too vague and conclusory to show that he was

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denied any constitutionally guaranteed procedural safeguards. Moreover, plaintiff’s claim that

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some of the documents relied upon in the disciplinary proceedings contained false statements,

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does not implicate a constitutional right. See Rupe v. Beard, No. CV-08-2454-EFS, 2013 U.S.

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Dist. LEXIS 180415, at *24 (E.D. Cal. Dec. 23, 2013) (“While Plaintiff maintains that he was

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charged with false reports, the Due Process Clause does not make one free from false accusations,

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but merely provides procedural protections to defend against false accusations”).

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Plaintiff also fails to state an equal protection claim. To state a § 1983 claim for violation

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of the Equal Protection Clause, a plaintiff must show that he was treated in a manner inconsistent

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with others similarly situated, and that the defendants acted with an intent or purpose to

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discriminate against the plaintiff based upon membership in a protected class.” Thornton v. City

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of St. Helens, 425 F.3d 1158, 1166-67 (9th Cir. 2005) (internal quotations omitted). Here, the

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allegations present no basis upon which to base a claim for a violation of plaintiff’s equal

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protection rights.
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Finally, although the complaint does not expressly include a First Amendment retaliation

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claim, the court nevertheless notes that to state such a claim, a prisoner must allege five elements:

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

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

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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). Generally speaking, a retaliation

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claim cannot rest on the logical fallacy of post hoc, ergo propter hoc, literally, “after this,

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therefore because of this.” See Huskey v. City of San Jose, 204 F.3d 893, 899 (9th Cir. 2000).

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For these reasons, the complaint is dismissed with leave to amend. Plaintiff will be

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granted leave to file an amended complaint, if he can allege a cognizable legal theory against a

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proper defendant and sufficient facts in support of that cognizable legal theory. Lopez v. Smith,

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203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must afford pro se litigants an

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opportunity to amend to correct any deficiency in their complaints). Should plaintiff choose to

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file an amended complaint, the amended complaint shall clearly set forth the claims and

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allegations against each defendant. Any amended complaint must cure the deficiencies identified

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above and also adhere to the following requirements:

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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).
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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The court cautions plaintiff that failure to comply with the Federal Rules of Civil

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Procedure, this court’s Local Rules, or any court order may result in this action being dismissed.

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See E.D. Cal. L.R. 110.

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IV.

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Summary of Order
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff’s request to proceed in forma pauperis (ECF No. 2) 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 is dismissed with leave to amend within 30 days. The amended

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

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

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this action for failure to prosecute.

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Dated: November 14, 2017.

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