Calloway v. California Department of Corrections and Rehabilitation et al

Filing 23

ORDER signed by Magistrate Judge Dennis M. Cota on 6/13/2019 DISMISSING plaintiff's complaint with leave to amend and plaintiff shall file an amended complaint within 30 days. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMISI JERMAINE CALLOWAY,

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Plaintiff,

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No. 2:16-CV-2532-WBS-DMC-P

v.

ORDER

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, et al.,

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Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. Pending before the Court is Plaintiff’s complaint (ECF No. 1). Plaintiff

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alleges, generally, Defendants violated his rights under the First Amendment, Eighth

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Amendment, and under the Due Process Clause of the Fourteenth Amendment.

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I. SCREENING REQUIREMENT AND STANDARD

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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).
The Federal Rules of Civil Procedure require complaints contain a “…short and

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plain statement of the claim showing that the pleader is entitled to relief.” See McHenry v.

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Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (quoting Fed. R. Civ. P. 8(a)(1)). Detailed factual

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allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678

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(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s

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allegations are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v.

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Wal–Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation

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omitted).

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Prisoners proceeding pro se in civil rights actions are entitled to have their

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pleadings liberally construed and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d

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338, 342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff’s claims must be

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facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer

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that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678 (quotation

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marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The

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sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with

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liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks

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omitted); Moss, 572F.3d at 969.

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II. PLAINTIFF’S ALLEGATIONS
Plaintiff names the following as defendants: (1) J. Lewis (2) R. Briggs (3) M.

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Vcong (4) D. Artis (5) T. Lee (6) C. Hammond (7) R. Pimental (8) M. Hodges (9) A. Pacillas (10)

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D. Goree (11) K. Cribbs (12) J. Jasso (13) D. Ramos (14) T. Vang (15) D. Nelson (16) T.

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Cherukuri (17) A. Infants (18) T. Ordonez (19) D. Hermosillo (20) M. Carrasquillo (21) K.

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Martin (22) L. Donnelly (23) A. Poythress (24) M. Lowe (25) E. Facio Jr. (26) A. Adams (27) G.

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Williams (28) D. Julie Jacobs (29) J. Wang (30) C. Cryer Jr. (31) C. McCabe (32) G. Ugwwzze

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(33) Butts (34) Church (35) Enenmoh (36) White (37) Nguyen (38) Pham (39) Benson (40)

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Guyaallen (41) Patel (42) Lipster (43) Brizendine (44) M. Fritz (45) Orelino (46) Ping (47)

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Schafer (48) Abu (49) T. Wells (50) K. Min (51) Foroutan (52) Alex (53) Frant (54) Sagreddy

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(55) Kent (56) Pat (57) Carman (58) Steve (59) Candy (60) Denice (61) R.J. Rackely (62) B.

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Duffy (63) S. Sherman (64) M. Jennings (65) F. Vasquez (66) V.J. Singh (67) P.S. Nowling (68)

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J. Zamora (69) J. Neely (70) C. Shirley (71) T. Macias (72) C. Cryer (73) S. Vemuri (74) R.

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Shephard (75) A. Iadson (76) A. Baer (77) M. Gamboa (78) D. Brittin (79) M.S. Thomas (80) A.

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Romero (81) J. Peudhel (82) R. Vogel (83) Heyer (84) K. Lewis (85) Roman (86) D. Martin (87)

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M. Pendel (88) S. Hart (89) M. Howard (90) T. Black (91) C. Cisneas (92) Singh (93) Cruz (94)

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Spualden (95) Chistopher (96) McGuire (97) Jimenez (98) Miller (99) California Department of

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Corrections and Rehabilitation. See ECF No. 1, at 1-6.

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Plaintiff raises three claims. First, Plaintiff alleges Defendants, employees of the

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California Department of Corrections and Rehabilitation (CDCR), violated Plaintiff’s Fourteenth

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Amendment right to Due Process by conspiring to discriminate, defraud, and destroy pertinent

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evidence to fabricate documents that caused Plaintiff to be wrongfully housed in an “Enhance Out

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Patient Hub.” Id. at 6-7. Second, Plaintiff alleges that by housing him in the “Enhance Out

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Patient Hub,” Defendants violated his Eighth Amendment rights because it caused him to

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“mentally and physically decompensate from unwanted stress and injuries.” Id. at 7. Plaintiff’s

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alleged injuries resulting from the Enhance Out Patient Hub include clotting in his right upper

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arm from the misuse of restraints during his hemodialysis treatment, which led to additional

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surgeries and hospitalizations to correct the injury. Id. Plaintiff asserts, while housed in the
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Enhanced Out Patient Hub, Defendants deliberately delayed treatment to “declot” his arm

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because there is a facility policy to prioritize profit over his medical needs. Id. Plaintiff claims

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Defendants’ actions placed his life in imminent danger because he did not receive adequate

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medical treatment for his serious life sustaining medical needs while in the Enhanced Out Patient

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Hub. Id. at 8.

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Third, Plaintiff alleges Defendants retaliated against him, in violation of his First

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Amendment rights, because he complained about the poor health care at CHCF-Stockton. Id. at

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7-8. Specifically, Plaintiff alleges Defendants deliberately misplaced, destroyed, and stole his

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personal property and legal documents. Id. at 7-8. Further, Plaintiff alleges his First Amendment

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rights were violated by Defendants because their alleged retaliatory acts were meant to provoke

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Plaintiff to violence, silence him, and further delay his access to the courts. Id.

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III. DISCUSSION
As currently set forth, the Court finds Plaintiff’s complaint fails to state a

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cognizable claim under § 1983. Plaintiff alleges violations of his rights under the First

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Amendment, Eighth Amendment, and the Due Process Clause of the Fourteenth Amendment.

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Plaintiff’s claims all fail to meet the pleading standard outline under Federal Rule of Civil

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Procedure Rule 8 as Plaintiff fails to specify which Defendant engaged in the conduct that lead to

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the alleged constitutional violations. Further, even if Plaintiff had established factual links

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between the individual Defendants and the constitutional violations, Plaintiff’s claims would still

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fail to pass screening as they lack sufficient factual allegations to support each alleged

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constitutional violation.

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A.

Pleading Standard—Rule 8

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Turning first to the pleading standard under Federal Rules of Civil Procedure Rule

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8. To state a claim under 42 U.S.C. § 1983, the plaintiff must allege an actual connection or link

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between the actions of the named defendants and the alleged deprivations. See Monell v. Dep’t

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of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A person

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‘subjects’ another to the deprivation of a constitutional right, within the meaning of § 1983, if he
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does an affirmative act, participates in another's affirmative acts, or omits to perform an act which

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he is legally required to do that causes the deprivation of which complaint is made.” Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations concerning the

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involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of

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Regents, 673 F.2d 266, 268 (9th Cir. 1982). Rather, the plaintiff must set forth specific facts as to

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each individual defendant’s causal role in the alleged constitutional deprivation. See Leer v.

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Murphy, 844 F.2d 628, 634 (9th Cir. 1988).

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Here, Plaintiff alleges all the named Defendants, generally, acted on behalf of the
CDCR by collectively conspiring against him in order to place him in the “Enhance Out Patient

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Hub.” Plaintiff does not specifically name or address any individual Defendant in the complaint,

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nor does Plaintiff allege how the named Defendants’ personal conduct violated Plaintiff’s

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constitutional or statutory rights. Because Plaintiff fails to allege any facts indicating which

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Defendant engaged in the alleged unconstitutional action, Plaintiff has failed to satisfy the Rule 8

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pleading standard. Further, because Plaintiff failed to attribute any of the alleged unconstitutional

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conduct to any individual Defendant, this Court is unable to engage in a substantive analysis to

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determine if sufficient facts exist, as to each Defendant, for any of the claims to pass screening.

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For these reasons, Plaintiff’s claims cannot pass screening as they fail to satisfy the pleading

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standard under Rule 8 of the Federal Rules of Civil Procedure. Plaintiff will be provided an

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opportunity to amend the complaint to set forth specific facts as to each named Defendant

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demonstrating what each Defendant did and how that action or inaction violated Plaintiff’s

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constitutional rights.

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B.

Supervisory Liability

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The Court turns now to the substantive defects in Plaintiff’s complaint, beginning

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first with supervisory liability. The Court observes multiple Defendants named in the complaint

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hold supervisory positions. Supervisory personnel are generally not liable under § 1983 for the

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actions of their employees. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (holding that

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there is no respondeat superior liability under § 1983). A supervisor is only liable for the

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constitutional violations of subordinates if the supervisor participated in or directed the violations.
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See id. The Supreme Court has rejected the notion that a supervisory defendant can be liable

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based on knowledge and acquiescence in a subordinate’s unconstitutional conduct because

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

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

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

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of 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 in

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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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Here, Plaintiff appears to allege some of the Defendants are liable as supervisory

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personnel—asserting that as supervisors, these Defendants are liable for the conduct of their

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subordinates. This is a respondeat superior theory of liability, which is not cognizable under §

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1983. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Plaintiff is advised that in

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amending the complaint, he should be cognizant of the legal standard related to supervisory

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liability, outlined above, and note that a supervisor can only be held liable for their own actions or

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inactions resulting in the violation of Plaintiff’s constitutional rights, not the actions or inactions

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of their subordinates.

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C.

First Amendment

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1. Retaliation

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In order to state a claim under 42 U.S.C. § 1983 for retaliation, the prisoner must

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establish that he was retaliated against for exercising a constitutional right, and that the retaliatory

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action was not related to a legitimate penological purpose, such as preserving institutional
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security. See Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam). In meeting

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this standard, the prisoner must demonstrate a specific link between the alleged retaliation and the

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exercise of a constitutional right. See Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995);

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Valandingham v. Bojorquez, 866 F.2d 1135, 1138-39 (9th Cir. 1989). The prisoner must also

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show that the exercise of First Amendment rights was chilled, though not necessarily silenced, by

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the alleged retaliatory conduct. See Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000), see also

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Rhodes v. Robinson, 408 F.3d 559, 569 (9th Cir. 2005). Thus, the prisoner plaintiff must

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establish the following in order to state a claim for retaliation: (1) prison officials took adverse

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action against the inmate; (2) the adverse action was taken because the inmate engaged in

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protected conduct; (3) the adverse action chilled the inmate’s First Amendment rights; and (4) the

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adverse action did not serve a legitimate penological purpose. See Rhodes, 408 F.3d at 568.

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As to the chilling effect, the Ninth Circuit in Rhodes observed: “If Rhodes had not

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alleged a chilling effect, perhaps his allegations that he suffered harm would suffice, since harm

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that is more than minimal will almost always have a chilling effect.” Id. at n.11. By way of

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example, the court cited Pratt in which a retaliation claim had been decided without discussing

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chilling. See id. This citation is somewhat confusing in that the court in Pratt had no reason to

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discuss chilling because it concluded that the plaintiff could not prove the absence of legitimate

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penological interests. See Pratt, 65 F.3d at 808-09. Nonetheless, while the court has clearly

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stated that one of the “basic elements” of a First Amendment retaliation claim is that the adverse

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action “chilled the inmates exercise of his First Amendment rights,” id. at 567-68, see also

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Resnick, 213 F.3d at 449, the comment in Rhodes at footnote 11 suggests that adverse action

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which is more than minimal satisfies this element. Thus, if this reading of Rhodes is correct, the

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chilling effect element is essentially subsumed by adverse action.

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Here, Plaintiff fails to allege sufficient facts to establish a First Amendment

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violation because it is unclear which Defendants engaged in the retaliatory action of deliberately

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misplacing, destroying, and stealing his personal property. Further, Plaintiff’s allegations related

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to this alleged retaliation are vague and conclusory. Plaintiff alleges no facts indicating whether

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any of the Defendants had knowledge of the grievance that lead to the alleged retaliation and
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alleges no facts demonstrating Plaintiff’s speech was chilled. Because Plaintiff fails to identify

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which Defendants engaged in the alleged retaliatory conduct, and because Plaintiff alleges

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insufficient facts to establish a retaliation claim generally, Plaintiff’s First Amendment retaliation

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claim cannot pass screening.

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2. Lack of Access to the Courts

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Prisoners have a First Amendment right of access to the courts. See Lewis v.

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Casey, 518 U.S. 343, 346 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977); Bradley v. Hall, 64

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F.3d 1276, 1279 (9th Cir. 1995) (discussing the right in the context of prison grievance

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procedures). This right includes petitioning the government through the prison grievance process.

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See id. Prison officials are required to “assist inmates in the preparation and filing of meaningful

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legal papers by providing prisoners with adequate law libraries or adequate assistance from

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persons trained in the law.” Bounds, 430 U.S. at 828. The right of access to the courts, however,

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only requires that prisoners have the capability of bringing challenges to sentences or conditions

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of confinement. See Lewis, 518 U.S. at 356-57. Moreover, the right is limited to non-frivolous

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criminal appeals, habeas corpus actions, and § 1983 suits. See id. at 353 n.3 & 354-55.

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Therefore, the right of access to the courts is only a right to present these kinds of claims to the

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court, and not a right to discover claims or to litigate them effectively once filed. See id. at 354-

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55.

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As a jurisdictional requirement flowing from the standing doctrine, the prisoner

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must allege an actual injury. See id. at 349. “Actual injury” is prejudice with respect to

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contemplated or existing litigation, such as the inability to meet a filing deadline or present a non-

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frivolous claim. See id.; see also Phillips v. Hust, 477 F.3d 1070, 1075 (9th Cir. 2007). Delays in

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providing legal materials or assistance which result in prejudice are “not of constitutional

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significance” if the delay is reasonably related to legitimate penological purposes. Lewis, 518

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U.S. at 362.

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Here, Plaintiff alleges Defendants deliberately misplaced, destroyed, and stole his

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personal property and legal documents in order to incite and provoke violence, which delayed his

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access to the court. However, as noted above, Plaintiff failed to allege the specific Defendants
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that participated in the deliberate acts that delayed his access to the courts. Further, Plaintiff fails

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to allege an actual injury resulting from the alleged delay, such as an inability to meet a filing

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deadline. Because a plaintiff must allege “actual injury” to establish a First Amendment access to

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courts claim, Plaintiff’s failure to assert an actual injury is fatal to his claim. Thus, Plaintiff’s

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First Amendment claim for a lack of access to the courts cannot pass screening.

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D.

Eighth Amendment – Medical Needs
The treatment a prisoner receives in prison and the conditions under which the

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prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel

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and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan,

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511 U.S. 825, 832 (1994). The Eighth Amendment “. . . embodies broad and idealistic concepts

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of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102

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(1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v.

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Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with

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“food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy,

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801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only when

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two requirements are met: (1) objectively, the official’s act or omission must be so serious such

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that it results in the denial of the minimal civilized measure of life’s necessities; and (2)

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subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of

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inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison

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official must have a “sufficiently culpable mind.” See id.

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Deliberate indifference to a prisoner’s serious illness or injury, or risks of serious

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injury or illness, gives rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 105;

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see also Farmer, 511 U.S. at 837. This applies to physical as well as dental and mental health

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needs. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982). An injury or illness is

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sufficiently serious if the failure to treat a prisoner’s condition could result in further significant

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injury or the “. . . unnecessary and wanton infliction of pain.” McGuckin v. Smith, 974 F.2d

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1050, 1059 (9th Cir. 1992); see also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994).

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Factors indicating seriousness are: (1) whether a reasonable doctor would think that the condition
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is worthy of comment; (2) whether the condition significantly impacts the prisoner’s daily

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activities; and (3) whether the condition is chronic and accompanied by substantial pain. See

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Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000) (en banc).

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The requirement of deliberate indifference is less stringent in medical needs cases

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than in other Eighth Amendment contexts because the responsibility to provide inmates with

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medical care does not generally conflict with competing penological concerns. See McGuckin,

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974 F.2d at 1060. Thus, deference need not be given to the judgment of prison officials as to

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decisions concerning medical needs. See Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir.

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1989). The complete denial of medical attention may constitute deliberate indifference. See

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Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986). Delay in providing medical

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treatment, or interference with medical treatment, may also constitute deliberate indifference. See

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Lopez, 203 F.3d at 1131. Where delay is alleged, however, the prisoner must also demonstrate

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that the delay led to further injury. See McGuckin, 974 F.2d at 1060.

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Negligence in diagnosing or treating a medical condition does not, however, give

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rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 106. Moreover, a

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difference of opinion between the prisoner and medical providers concerning the appropriate

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course of treatment does not give rise to an Eighth Amendment claim. See Jackson v. McIntosh,

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90 F.3d 330, 332 (9th Cir. 1996).

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Here, Plaintiff has not alleged sufficient facts to establish an Eighth Amendment

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violation. Plaintiff did not allege facts supporting an allegation that any Defendant acted

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unnecessarily and wantonly for the purpose of inflicting harm on Plaintiff. Further, Plaintiff

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failed to identify the specific defendants who misused the restraints during his hemodialysis

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treatment that led to blood clotting and additional surgeries. Additionally, it appears Plaintiff’s

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claim is, at least in part, based on a theory of negligence. Because negligence in treating a

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medical condition does not give rise to an Eighth Amendment violation, any allegations related to

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alleged negligence fail to state a claim under § 1983. See Estelle, 429 U.S. at 106. Because

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Plaintiff has failed to allege sufficient facts to establish an Eighth Amendment claim, failed to

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link any Defendant to any alleged misconduct, and rooted his allegations in a theory of negligent
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medical treatment, Plaintiff’s Eighth Amendment claim cannot pass screening.
E.

Fourteenth Amendment – Due Process Clause
The Due Process Clause protects prisoners from being deprived of life, liberty, or

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

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

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property interest for which the protection is sought. See Ingraham v. Wright, 430 U.S. 651, 672

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(1977); Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972). Due process protects against the

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

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of Regents, 408 U.S. at 577. Protected property interests are created, and their dimensions are

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defined, by existing rules that stem from an independent source – such as state law – and which

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secure 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-time

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

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515 U.S. 472, 485-86 (1995); in not losing privileges, see Baxter v. Palmigiano, 425 U.S. 308,

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

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

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Where a prisoner alleges the deprivation of a liberty or property interest caused by
the random and unauthorized action of a prison official, there is no claim cognizable under 42

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U.S.C. § 1983 if the state provides an adequate post-deprivation remedy. See Zinermon v. Burch,

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494 U.S. 113, 129-32 (1990); Hudson v. Palmer, 468 U.S. 517, 533 (1984). A state’s post-

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deprivation remedy may be adequate even though it does not provide relief identical to that

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available under § 1983. See Hudson, 468 U.S. at 531 n.11. A due process claim is not barred,

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however, where the deprivation is foreseeable and the state can therefore be reasonably expected

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to make pre-deprivation process available. See Zinermon, 494 U.S. at 136-39. An available

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state common law tort claim procedure to recover the value of property is an adequate remedy.

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See id. at 128-29.

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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 the

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

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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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Here, Plaintiff has not alleged sufficient factual allegations to support a Fourteenth

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Amendment violation claim under the Due Process Clause. Plaintiff alleges all the defendants

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discriminated, defrauded, and destroyed pertinent evidence by fabricating documents that caused

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Plaintiff to be wrongfully housed in the “Enhance Out Patient Hub.” As discussed above,

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Plaintiff failed to identify the specific defendants who allegedly discriminated, defrauded,

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destroyed evidence, and fabricated documents. Further, Plaintiff’s factual allegations are too

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vague—it is unclear how Plaintiff was specifically discriminated against, how he was defrauded,

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and what pertinent evidence was destroyed through fabrication. Thus, Plaintiff’s Fourteenth

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Amendment claim under the Due Process Clause cannot pass screening.

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IV. 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). Plaintiff

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is informed that, as a general rule, an amended complaint supersedes the original complaint. See

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Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to

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amend, all claims alleged in the original complaint which are not alleged in the amended

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

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

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plaintiff's amended complaint complete. See Local Rule 220. An amended complaint must be

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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.
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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1.

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

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2.

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: June 13, 2019
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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