Leonard v. Thompson et al

Filing 12

ORDER signed by Magistrate Judge Deborah Barnes on 4/4/2017 GRANTING plaintiff's 10 motion to proceed IFP. Plaintiff shall pay the $350.00 filing fee in accordance with the concurrent order to the Sheriff of Solano County. Plaintiff's complaint is DISMISSED with leave to amend within 30 days. The Clerk shall send plaintiff a prisoner complaint form. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FREDERICK E. LEONARD,

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No. 2:16-cv-2767 DB P

Plaintiff,
v.

ORDER

M. THOMPSON, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action under 42 U.S.C. §

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1983. Plaintiff alleges that due to a mistake on the part of a correctional officer, he was forced

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into a fight and found guilty of “mutual combat.” Before the court is plaintiff’s motion to

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proceed in forma pauperis and plaintiff’s complaint for screening. For the reasons set forth

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below, the court will grant plaintiff’s motion to proceed in forma pauperis, dismiss the complaint,

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and give plaintiff leave to file an amended complaint.

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IN FORMA PAUPERIS

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Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. §

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1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§

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1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in

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accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct
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the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and

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forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments

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of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account.

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These payments will be forwarded by the appropriate agency to the Clerk of the Court each time

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the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. §

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1915(b)(2).

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SCREENING

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I.

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The court is required to screen complaints brought by prisoners seeking relief against a

Legal Standards

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governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. §

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1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims

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that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be

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granted, or that seek monetary relief from a defendant who is immune from such relief. See 28

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U.S.C. § 1915A(b)(1) & (2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227.

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Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain

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statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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However, in order to survive dismissal for failure to state a claim a complaint must contain more

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

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allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550

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U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the
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allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S.

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738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all

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doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

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The Civil Rights Act under which this action was filed provides as follows:

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Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the
Constitution . . . shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress.

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42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the

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actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

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Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

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(1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the

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meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or

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omits to perform an act which he is legally required to do that causes the deprivation of which

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complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Moreover, supervisory personnel are generally not liable under § 1983 for the actions of

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their employees under a theory of respondeat superior and, therefore, when a named defendant

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holds a supervisorial position, the causal link between him and the claimed constitutional

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violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979);

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Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations

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concerning the involvement of official personnel in civil rights violations are not sufficient. See

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Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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II.

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Allegations of the Complaint
At all times discussed herein, plaintiff was incarcerated at Solano County’s Stanton

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Correctional Facility in the “Administrative Separation Program.” Plaintiff identifies the

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following defendants: M. Thompson, Deputy; S. Clemente, Deputy; and J. Metzger, Deputy.

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(Compl. (ECF No. 1 at 2).)

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A. Claim I

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In his first claim, plaintiff states that on July 11, 2016, inmate Jeffrey Butler made a racist

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remark and threated to kill plaintiff. (Id. at 3, 10.) Plaintiff states that Butler often made highly

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racists remarks. (Id. at 9-10.) Plaintiff is African American. Both he and Butler were housed at

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that time in the Administrative Separation (“Ad Sep”) area. (Id. at 3.) Plaintiff states that he is

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in the Ad Sep area by choice because he suffers from paranoia and schizophrenia. (Id. at 11.)

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On the morning of July 12, 2016, Butler told plaintiff he was not going to “lock down” so

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that he could “move” on plaintiff. (Id. at 10.) At some point later that day, defendant Thompson

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failed to make sure inmate Butler was secure in his cell before letting plaintiff out of his cell.

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Thompson then left his unit office for fifteen minutes. (Id. at 3, 7.)
When plaintiff was released from his cell, he walked down the stairs and noticed that

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defendant Thompson was not in the unit office. He then heard Butler yelling. He also saw Butler

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look directly into plaintiff’s cell and yell, “Now where is this nigger!” Plaintiff felt he was in a

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“fight or flight situation because I had already lock my cell door behind me, and Officer

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Thompson was not in the unit.” Butler then threatened to ambush plaintiff when plaintiff

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returned to the housing unit. Plaintiff “confronted the threat, and a conflict ensued.” (Id. at 10.)

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Defendants Thompson and Metzger wrote a report on the fight. They referred to it as

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“mutual combat.” Defendant Clemente was the hearing officer regarding the incident and found

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plaintiff guilty.

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Plaintiff states that he suffered no physical injuries as a result of his fight with Butler. (Id.
at 3.) However, he suffers mental trauma as a result.
Plaintiff asserts that this conduct was a violation of California Code of Regulations, title

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15, § 1053 “Administrative Separation;” and Penal Code §§ 4001 and 4002 “Protection of

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Inmates and Staff.” (Id. at 3.)

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B. Claim II

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In his second claim, plaintiff alleges that he was denied the right to a fair hearing. He

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states that defendant Clemente reviewed a video of his altercation with Butler and found plaintiff

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guilty. Based on being found guilty in the incident report, plaintiff states the incident was “made
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criminal” by defendant Metzger. As a result, a Solano County prosecutor was able to obtain the

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video and used it against plaintiff at an unrelated criminal trial held in October. (Id. at 4.)

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Plaintiff states that while he was acquitted of most charges, he was found guilty of some,

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“presumably prejudiced from this video.” (Id. at 12.) However, plaintiff has not been criminally

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prosecuted for the incident with Butler. (Id. at 4.)

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Plaintiff states that as a result of this incident, he has been a “wreck,” and has requested a
higher dose of medication from a “psych doc.” (Id.)

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Plaintiff asserts this conduct violated his right to a fair hearing under California Code of
Regulations, title 15, § 1006 “Direct Visual Observation.”

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C. Claim III

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Here, plaintiff alleges that defendant Metzger approved the incident report authored by

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defendant Thompson even though Thompson admitted in the report that he mistakenly thought

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Butler was in his cell before he released plaintiff from his cell. (Id. at 5, 7.) In addition, Metzger

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called for a sheriff’s deputy to take a crime report of the incident. Plaintiff claims Metzger

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wrongfully accused plaintiff based on a report created by an admittedly negligent source. (Id. at

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5.)

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In his request for relief, plaintiff states that he is seeking compensatory damages and
formal apologies from all defendants.

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III.

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The following appear to be the claims plaintiff alleges against each defendant: (1) Thompson

Does Plaintiff State a Potentially Cognizable Claim?

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was negligent in releasing plaintiff from his cell before assuring that inmate Butler was secure;

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(2) Clemente relied upon a video of plaintiff’s altercation with Butler to find plaintiff guilty; and

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(3) Metzger relied upon Thompson’s report of the incident to confirm plaintiff’s guilt and to have

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a crime report written up. Plaintiff claims these actions violated various aspects of state law.

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A. State Law Claims not Cognizable under § 1983
Initially, plaintiff is advised that the purpose of a proceeding under § 1983 is to seek redress

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for a violation of plaintiff’s federal rights. Any violation of state tort law, state regulations, rules

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and policies of the department of corrections, or other state law is not sufficient to state a claim
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for relief under § 1983. To state a claim under § 1983, there must be a deprivation of federal

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constitutional or statutory rights. See Paul v. Davis, 424 U.S. 693 (1976); Galen v. County of Los

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Angeles, 477 F.3d 652, 662 (9th Cir. 2007) (“Section 1983 requires [plaintiff] to demonstrate a

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violation of federal law, not state law.”). Although the court may exercise supplemental

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jurisdiction over state law claims, plaintiff must first have a cognizable claim for relief under

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federal law. See 28 U.S.C. § 1367.

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In certain situations, a state law may create a liberty interest that is protected by the Due

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Process Clause. In addition, prisoners have some rights in disciplinary hearings that result in

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severe sanctions. Those federal rights, and others, are set out below and the court considers

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whether plaintiff has met those federal standards based on the allegations in his complaint.

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Plaintiff will be given an opportunity to amend his complaint to state a federal claim.

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B. Possible Federal Claims

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1.

State Law Created Liberty Interest

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Under state law, the existence of a liberty interest created by prison regulations is

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determined by focusing on the nature of the deprivation. Sandin v. Conner, 515 U.S. 472, 481-84

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(1995). Liberty interests created by state law are “generally limited to freedom from restraint

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which . . . imposes atypical and significant hardship on the inmate in relation to the ordinary

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incidents of prison life.” Id. at 484; Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007). Here,

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plaintiff has not shown that being found guilty of “mutual combat” resulted in any type of

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restraint or imposed any other “atypical and significant hardship” on him. A plaintiff must assert

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a “dramatic departure” from the standard conditions of confinement before due process concerns

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are implicated. Sandin, 515 U.S. at 485–86; see also Keenan v. Hall, 83 F.3d 1083, 1088–89 (9th

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Cir. 1996).

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2. Fourteenth Amendment Claim for Violation of Due Process Rights
Prisoners retain their right to due process subject to the restrictions imposed by the nature of

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the penal system. See Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Prison disciplinary

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proceedings are not part of a criminal prosecution and the full panoply of rights due a defendant

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in such proceedings does not apply. See id. But the Due Process Clause requires certain
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minimum procedural protections where serious rules violations are alleged, the power of prison

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officials to impose sanctions is narrowly restricted by state statute or regulations, and the

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sanctions are severe. See id. at 556–57, 571–72 n.19.

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Wolff established five constitutionally mandated procedural requirements for disciplinary

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proceedings. First, “written notice of the charges must be given to the disciplinary-action

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defendant in order to inform him of the charges and to enable him to marshal the facts and

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prepare a defense.” Id. at 564. Second, “at least a brief period of time after the notice, no less

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than 24 hours, should be allowed to the inmate to prepare for the appearance before the

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[disciplinary committee].” Id. Third, “there must be a ‘written statement by the factfinders as to

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the evidence relied on and reasons' for the disciplinary action.” Id. (quoting Morrissey v. Brewer,

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408 U.S. 471, 489 (1972)). Fourth, “the inmate facing disciplinary proceedings should be

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allowed to call witnesses and present documentary evidence in his defense when permitting him

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to do so will not be unduly hazardous to institutional safety or correctional goals.” Id. at 566.

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And fifth, “[w]here an illiterate inmate is involved [or] the complexity of the issue makes it

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unlikely that the inmate will be able to collect and present the evidence necessary for an adequate

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comprehension of the case, he should be free to seek the aid of a fellow inmate, or . . . to have

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adequate substitute aid . . . from the staff or from a[n] . . . inmate designated by the staff.” Id. at

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570.

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Additionally, “some evidence” must support the decision of the hearing officer.

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Superintendent v. Hill, 472 U.S. 445, 455 (1985). The standard is not particularly stringent and

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the relevant inquiry is whether “there is any evidence in the record that could support the

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conclusion reached.” Id. at 455–56.

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In his complaint, plaintiff fails to state a claim that the hearing resulting in the “mortal

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combat” finding violated his due process rights. First, plaintiff must show that the result of the

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guilty finding was a “severe sanction.” Second, plaintiff must explain what happened at the

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hearing to show whether he received the process due under Wolff or why “some evidence” does

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not support the determination that he is guilty of mutual combat. Based on plaintiff’s description

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of the encounter with Butler, it does appear that he engaged in an altercation, which would meet
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the “some evidence” standard to support a finding of guilt. See Bruce v. Ylst, 351 F.3d 1283,

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1287 (9th Cir. 2003) (court only considers whether there is “any evidence in the record” to

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support the conclusion); Pettis v. Asuncion, No. CV 16-4241 CBM(JC), 2017 WL 927626, at *7

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(C.D. Cal. Jan. 26, 2017) (some evidence supports finding that prisoner was in possession of a

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cell phone where it was found in his cell, even though prisoner presented declaration of his cell

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mate that prisoner was unaware of the phone), report and reco. adopted, 2017 WL 923895 (C.D.

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Cal. Mar. 8, 2017). Plaintiff may not seek to have this court reexamine the record, reassess the

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credibility of the witnesses, or reweigh the evidence. Hill, 472 U.S. at 455-56; Bruce, 351 F.3d at

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1287.

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Accordingly, plaintiff has failed to state a due process claim against any defendant based on
the conduct and conclusion of the hearing.
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False Disciplinary Report

To the extent plaintiff is alleging that the finding of guilt was based on a false report, or was

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itself false, plaintiff is advised that there is no due process right to be free from false disciplinary

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charges. The falsification of a disciplinary report does not state a stand-alone constitutional

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claim. See Luster v. Amezcua, No. 1:16-cv-0554-DAD-GSA-PC, 2017 WL 772141, at *5 (E.D.

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Cal. Feb. 27, 2017). Specifically, “the fact that a prisoner may have been innocent of disciplinary

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charges brought against him . . . does not raise a due process issue. The Constitution demands

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due process, not error-free decision-making.” Jones v. Woodward, No. 1:14-cv-2084-SAB(PC),

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2015 WL 1014257, *2 (E.D. Cal. Mar. 6, 2015) (citing Ricker v. Leapley, 25 F.3d 1406, 1410

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(8th Cir. 1994) and McCrae v. Hankins, 720 F.2d 863, 868 (5th Cir. 1983)). Therefore, plaintiff

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has no protected liberty interest in freedom from false claims against him.

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4.

Failure to Protect

Plaintiff’s claim against defendant Thompson could be construed as a failure to protect.

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The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S. Const.

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amend. VIII. The “unnecessary and wanton infliction of pain” constitutes cruel and unusual

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punishment prohibited by the United States Constitution. Whitley v. Albers, 475 U.S. 312, 319

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(1986); see also Ingraham v. Wright, 430 U.S. 651, 670 (1977); Estelle v. Gamble, 429 U.S. 97,
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105–06 (1976). However, neither accident nor negligence constitutes cruel and unusual

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punishment, as “[i]t is obduracy and wantonness, not inadvertence or error in good faith, that

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characterize the conduct prohibited by the Cruel and Unusual Punishments Clause.” Whitley, 475

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U.S. at 319.

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To state a failure to protect claim, plaintiff must allege facts showing that objectively he

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suffered a “sufficiently serious” deprivation. Farmer v. Brennan, 511 U.S. 825, 834 (1994);

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Wilson v. Seiter, 501 U.S. 294, 298–99 (1991). He must also show that subjectively defendant

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Thompson had a culpable state of mind in allowing plaintiff's deprivation to occur. Farmer, 511

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U.S. at 834. A prison official violates the Eighth Amendment “only if he knows that inmates face

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a substantial risk of serious harm and disregards that risk by failing to take reasonable measures

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to abate it.” Id. at 847. Under this standard, a prison official must have a “sufficiently culpable

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state of mind,” one of deliberate indifference to the inmate's health or safety. Id. at 834. To

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avoid a finding of deliberate indifference, prison officials may show, for example:

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that they did not know of the underlying facts indicating a
sufficiently substantial danger and that they were therefore unaware
of a danger, or that they knew the underlying facts but believed
(albeit unsoundly) that the risk to which the facts gave rise was
insubstantial or nonexistent.

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Id. at 844.
Plaintiff’s allegations against defendant Thompson state that Thompson was negligent, but

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not that Thompson was deliberately indifferent to plaintiff’s safety. As stated, plaintiff’s

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allegations do not amount to an Eighth Amendment violation.

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C. No Monetary Damages for Mental Distress
The Prison Litigation Reform Act provides that “[n]o Federal civil action may be brought by a

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prisoner confined in jail, prison, or other correctional facility, for mental and emotional injury

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suffered while in custody without a prior showing of physical injury.” 42 U.S.C. § 1997e(e). The

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physical injury “need not be significant but must be more than de minimis.” Oliver v. Keller, 289

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F.3d 623, 627 (9th Cir. 2002) (back and leg pain and canker sore de minimis); see also Pierce v.

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County of Orange, 526 F.3d 1190, 1211-13 (9th Cir. 2008) (bladder infections and bed sores,

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which pose significant pain and health risks to paraplegics such as the plaintiff, were not de
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minimis ). The physical injury requirement applies only to claims for mental or emotional

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injuries and does not bar claims for compensatory, nominal, or punitive damages arising from a

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constitutional violation which are not based on alleged mental or emotional injuries. Oliver, 289

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F.3d at 630.

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In plaintiff’s complaint, he appears to state two injuries. First, he alleges mental distress as a

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result of being forced into the altercation with Butler. As stated above, plaintiff may not recover

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damages for mental distress without showing some physical injury that is more than de minimus.

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Second, plaintiff appears to be alleging that the use of the video of the altercation at an unrelated

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trial caused him prejudice. It is difficult to determine who plaintiff blames for the existence of

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the video. Presumably, he contends defendant Thompson’s negligence resulted in the altercation,

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and, thus, the video. Because, as described above, plaintiff does not allege Thompson was

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anything more than negligent, that claim would fail. Further, the existence of the video, which

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recorded an altercation plaintiff admitted having, without more, can hardly be said to have

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violated plaintiff’s rights. To the extent plaintiff is challenging the finding that he engaged in

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“mortal combat,” those claims are addressed above.

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IV.

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Because plaintiff does not currently state a cognizable federal law claim, the court will not

Conclusion

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exercise supplemental jurisdiction over any possible state law claims plaintiff seeks to raise.

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Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988) (when federal claims are eliminated

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before trial, district courts should usually decline to exercise supplemental jurisdiction).

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Plaintiff will be given an opportunity to file an amended complaint to state a federal claim.

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Plaintiff is advised that in an amended complaint he must clearly identify each defendant and the

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action that defendant took that violated his constitutional rights. The court is not required to

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review exhibits to determine what plaintiff’s charging allegations are as to each named defendant.

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If plaintiff wishes to add a claim, he must include it in the body of the complaint. The charging

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allegations must be set forth in the amended complaint so defendants have fair notice of the

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claims plaintiff is presenting. That said, plaintiff need not provide every detailed fact in support

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of his claims. Rather, plaintiff should provide a short, plain statement of each claim. See Fed. R.

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Civ. P. 8(a).

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Any amended complaint must show the federal court has jurisdiction, the action is brought in

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the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It must contain a

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request for particular relief. Plaintiff must identify as a defendant only persons who personally

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participated in a substantial way in depriving plaintiff 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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In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed. R.

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Civ. P. 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed. R.

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Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or

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occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b).

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The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d

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1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any

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heightened pleading standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P.

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84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be

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set forth in short and plain terms, simply, concisely and directly. See Swierkiewicz v. Sorema

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N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified pleading system,

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which was adopted to focus litigation on the merits of a claim.”); Fed. R. Civ. P. 8.

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An amended complaint must be complete in itself without reference to any prior pleading.

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E.D. Cal. R. 220. Once plaintiff files an amended complaint, the original pleading is superseded.

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By signing an amended complaint, plaintiff certifies he has made reasonable inquiry and has

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evidentiary support for his allegations, and for violation of this rule the court may impose

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sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11.

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Accordingly, IT IS HEREBY ORDERED as follows:

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1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 10) is granted.

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff

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is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. §

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1915(b)(1). All fees shall be collected and paid in accordance with this court’s order

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to the Sheriff of Solano County filed concurrently herewith.

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3. Plaintiff’s complaint (ECF No. 1) is dismissed with leave to amend.

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4. 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

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Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint

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must bear the docket number assigned this case and must be labeled “First Amended

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Complaint.” Plaintiff must file an original and two copies of the amended complaint.

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Plaintiff’s failure to file an amended complaint within the time provided, or otherwise

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respond to this order, may result in a recommendation that this case be dismissed.

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5. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint
form used in this district.
Dated: April 4, 2017

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DLB:9
DLB1/prisoner-civil rights/leon2767.scrn

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