Purdy v. Fox et al
Filing
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ORDER signed by Magistrate Judge Carolyn K. Delaney on 5/11/2018 GRANTING 2 Motion to Proceed IFP and GRANTING Plaintiff 30 days to file an amended complaint. Plaintiff to pay the statutory filing fee of $350. All fees to be collected and paid in accordance with this court's order to the CDCR filed concurrently herewith. (Henshaw, R)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JIHAD AL-HAKIM PURDY,
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No. 2:17-cv-2518 TLN CKD P
Plaintiff,
v.
ORDER
ROBERT W. FOX, et al.,
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Defendants.
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Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. §
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1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. §
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636(b)(1).
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Plaintiff requests leave to proceed in forma pauperis. Since plaintiff has submitted a
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declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted.
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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 separate order, the court will direct the appropriate agency to collect the
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initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court.
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Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding
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month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by
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the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account
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exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
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The court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek
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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).
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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th
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Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an
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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,
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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully
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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th
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Cir. 1989); Franklin, 745 F.2d at 1227.
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In order to avoid dismissal for failure to state a claim a complaint must contain more than
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“naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause
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of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words,
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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
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statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim
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upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A
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claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw
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the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.
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at 678. When considering whether a complaint states a claim upon which relief can be granted,
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the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and
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construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416
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U.S. 232, 236 (1974).
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The court has reviewed plaintiff’s complaint and finds that plaintiff may proceed on
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claims arising under the Free Exercise Clause of the First Amendment against defendants Scott
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and Rhinehart detailed in claim I of plaintiff’s complaint. As for the other defendants and claims
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identified in his complaint, plaintiff fails to state a claim upon which he may proceed.
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At this point, plaintiff has two options; he may proceed on the claims described above, or
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he can attempt to cure some or all of the deficiencies in his complaint by submitting an amended
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complaint. Plaintiff will be granted 30 days within which to submit an amended complaint. If
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plaintiff does not submit an amended complaint within 30 days, this action will proceed on the
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claims described above.
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As to the contents of his amended complaint, plaintiff is informed as follows:
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1. In his original complaint, plaintiff asserts several different claims against several
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different defendants. In general, a plaintiff may assert as many claims as he likes against a
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particular defendant. Claims against other defendants, however, must be related to a claim
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against the first as described in Federal Rule of Civil Procedure 20(a)(2). For example, if a claim
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against a second defendant arose out of the same incident as a claim against the first, the claim
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against the second defendant may be included in the complaint.
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2. Plaintiff identifies several persons as defendants without adequately identifying how
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they took action amounting to a violation of plaintiff’s civil rights. For example, plaintiff
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identifies certain persons as defendants because they denied or did not process inmate grievances.
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But, generally speaking, an inmate has no freestanding constitutional right to a prison or jail
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grievance procedure. Ramirez v. Galazza, 334 F.3d 850, 860 (9th Cir. 2003). Also, where
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plaintiff may have suffered injury which may amount to a violation, plaintiff identifies defendants
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not adequately linked to the injury. There can be no liability under 42 U.S.C. § 1983 unless there
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is some affirmative link or connection between a defendant’s actions and the claimed deprivation.
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Rizzo v. Goode, 423 U.S. 362 (1976).
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3. The United States Supreme Court has held that “an unauthorized intentional
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deprivation of property by a state employee does not constitute a violation of the procedural
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requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful post-
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deprivation remedy for the loss is available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984).
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Thus, where the state provides a meaningful post-deprivation remedy, as California does, only
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authorized, intentional deprivations constitute actionable violations of the Due Process Clause.
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An authorized deprivation is one carried out pursuant to established state procedures, regulations,
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or statutes. Piatt v. McDougall, 773 F.2d 1032, 1036 (9th Cir. 1985); see also Knudson v. City of
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Ellensburg, 832 F.2d 1142, 1149 (9th Cir. 1987).
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4. In order to state a cognizable claim for violation of due process during things such as
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hearings concerning level of custody or prisoner disciplinary proceedings, plaintiff must allege
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facts which suggest that he was deprived of a protected liberty interest. Such liberty interests are
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“generally limited to freedom from restraint which, while not exceeding the sentence in such an
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unexpected manner as to give rise to protection by the Due Process Clause of its own force,
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[citations omitted], nonetheless imposes atypical and significant hardship on the inmate in
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relation to the ordinary incidents of prison life.” Sandin v. Connor, 515 U.S. 472, 484 (1995).
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5. Plaintiff cannot be retaliated against for exercise of his First Amendment rights. In the
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prison context, a claim for First Amendment retaliation under § 1983 must establish five
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elements: “(1) an assertion that a state actor took some adverse action against an inmate (2)
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because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's
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exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate
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correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005).
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6. A defendant can be liable for use of excessive force under the Fourteenth Amendment
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if the amount of force used was objectively unreasonable. Graham v. Connor, 490 U.S. 386, 397
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(1989). In making that determination, the court considers the facts and circumstances confronting
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the defendant, id., and the type and amount of force used, Chew v. Gates, 27 F.3d 1432, 1440 (9th
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Cir. 1994).
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Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to
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make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended
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complaint be complete in itself without reference to any prior pleading. This is because, as a
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general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375
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F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no
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longer serves any function in the case. Therefore, in an amended complaint, as in an original
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complaint, each claim and the involvement of each defendant must be sufficiently alleged.
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In accordance with the above, IT IS HEREBY ORDERED that:
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1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) 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 to the
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California Department of Corrections and Rehabilitation filed concurrently herewith.
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3. Plaintiff is granted thirty days to file an amended complaint. The amended complaint
must bear the docket number assigned this case and must be labeled “Amended Complaint.”
4. The Clerk of the Court is directed to send plaintiff the court’s form for filing a prisoner
civil rights action.
5. If plaintiff does not submit an amended complaint within 30 days, this action will
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proceed on the claims arising under the Free Exercise Clause of the First Amendment against
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defendants Scott and Rhinehart detailed in claim I of plaintiff’s complaint. Further, the court will
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recommend that all other claims and defendants be dismissed.
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Dated: May 11, 2018
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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