Wilkins v. Tibbles et al

Filing 9

ORDER signed by Magistrate Judge Carolyn K. Delaney on 12/5/2016 GRANTING plaintiff's 2 motion for screening. The complaint is DISMISSED without prejudice. Plaintiff has 30 days to file an amended complaint. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TIMOTHY D. WILKINS,

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Plaintiff,

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No. 2:16-cv-2196 JAM CKD P

v.

ORDER

M. TIBBLES, et al.,

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Defendants.

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I. Introduction
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983.

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(ECF No. 1-1.) This action was removed to federal court pursuant to 28 U.S.C. § 1441(b), and

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defendants have paid the filing fee. (ECF No. 1.) Before the court is defendants’ motion to

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screen the complaint pursuant to 28 U.S.C. § 1915A(a). (ECF No. 2.)

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II. Screening Standard
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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In order to avoid dismissal for failure to state a claim a complaint must contain more than

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

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of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words,

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim

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upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A

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claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.

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at 678. When considering whether a complaint states a claim upon which relief can be granted,

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the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007),

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and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416

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U.S. 232, 236 (1974).

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III. Discussion

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Plaintiff alleges that on July 27, 2015, he spoke to his attorney about safety concerns with

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his cellmate. (ECF No. 1-1 at 6.) On August 6, 2015, “plaintiff was placed in administrative

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segregation by [defendant] Lieutenant Robert Slater for an incident that never happened.” (Id.)

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Slater signed an Administrative Segregation Unit Placement Notice that stated in part: “[W]hen

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you are assigned a cellmate you continually get naked and exhibit bizarre behavior putting your

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and your cellmate at risk of injury. . . . [Y]our continued presence in General Population is

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deemed a threat to the safety and security of the institution, its staff and inmates. You shall

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remain in ASU pending administrative review and investigation.” (ECF No. 1-1 at 17.)
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Similarly, on August 12, 2015, defendant Sergeant M. Tibbles “generated an [RVR]

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stating that this plaintiff [engaged in] bizarre behavior in order to pressure other inmates out of

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the cell with him.” (Id.) Plaintiff alleges that both reports were false, and that Slater and Tibbles

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engaged in retaliation for protected activity in violation of the First Amendment.

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After a disciplinary hearing on the RVR, plaintiff was found guilty of “refusing assigned

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housing” and assessed a 90-day loss of custody credits. (ECF No. 1-1 at 55.) Plaintiff asserts

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that, in his handling of the disciplinary hearing, Slater violated his federal due process rights

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under Wolff v. McDonnell, 418 U.S. 539 (1974).

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To establish a claim for retaliation, a prisoner must show that a prison official took some

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adverse action against an inmate because of that prisoner’s protected conduct, that the action

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chilled the inmate’s exercise of his constitutional rights, and the action did not advance a

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legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005). Here,

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as plaintiff was found guilty of the disciplinary charge of refusing a cellmate, it appears that

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defendants’ reports served a legitimate correctional goal.

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It further appears that this action is barred by Heck v. Humphrey, 512 U.S. 477 (1994). In

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Heck, the Supreme Court held that to recover damages for “harm caused by actions whose

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unlawfulness would render a conviction or sentence invalid,” a § 1983 plaintiff must prove that

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the conviction or sentence was reversed, expunged, or otherwise invalidated. Id. at 486–487.

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The Heck bar preserves the rule that federal challenges, which, if successful, would necessarily

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imply the invalidity of incarceration or its duration, must be brought by way of petition for writ of

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habeas corpus, after exhausting appropriate avenues of relief. Muhammad v. Close, 540 U.S.

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749, 750–751 (2004). Accordingly, “a state prisoner’s [section] 1983 action is barred (absent

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prior invalidation)—no matter the relief sought (damages or equitable relief), no matter the target

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of the prisoner’s suit (state conduct leading to conviction or internal prison proceedings)—if

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success in that action would necessarily demonstrate the invalidity of confinement or its

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duration.” Wilkinson v. Dotson, 544 U.S. 74, 81–82 (2005).

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If plaintiff prevails on his claims, a judgment in his favor will necessarily imply the
invalidity of his disciplinary conviction and any resulting credit loss. See Edwards, 520 U.S. at
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644, 647. Consequently, plaintiff's §1983 action cannot proceed unless and until his disciplinary

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conviction is invalidated as required by Heck and Edwards. 1

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Thus the complaint will be dismissed. Plaintiff will be granted one opportunity to amend

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the complaint in order to show that the disciplinary conviction that is the subject of this action has

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been invalidated, or any other reason why the Heck bar does not apply.

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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). If plaintiff chooses to amend the complaint, he

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should set forth a “short and plain statement” of his claim and any related claims against the

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appropriate defendants.

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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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Plaintiff is advised that prison inmates may challenge disciplinary convictions resulting in loss
of credits in a petition for writ of habeas corpus pursuant to 42 U.S.C. § 2254. An inmate’s rights
arising under federal law concerning disciplinary proceedings which result in the loss of good
conduct sentence credit are, generally speaking, limited to the following:
1) Advance written notice of the charges;
2) An opportunity, when consistent with institutional safety and correctional goals, to call
witnesses and present documentary evidence in his or her defense;
3) A written statement by the fact-finder of the evidence relied on and the reasons for the
disciplinary action; and
4) That the findings of the prison disciplinary board be supported by some evidence in the
record. Superintendent v. Hill, 472 U.S. 445, 454 (1985).
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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. Defendants’ motion for screening (ECF No. 2) is granted;

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2. The complaint is dismissed without prejudice; and

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3. 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: December 5, 2016

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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