Stitt

Filing 11

ORDER VACATING DISMISSAL AND JUDGMENT; REOPENING CASE; OF DISMISSAL WITH LEAVE TO AMEND. Signed by Judge Jeffrey S. White on 9/19/11. (jjoS, COURT STAFF) (Filed on 9/19/2011)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ANTHONY STITT,
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Plaintiff,
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G.D. LEWIS, Warden,
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Defendant.
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No. C 11-3046 JSW (PR)
ORDER VACATING
DISMISSAL AND JUDGMENT;
REOPENING CASE; OF
DISMISSAL WITH LEAVE TO
AMEND

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INTRODUCTION

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On June 20, 2011, Plaintiff, a prisoner of the State of California, filed this pro se

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civil rights action under 42 U.S.C. § 1983. That day, the Clerk notified Plaintiff that he

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had not filed a complaint and that he had neither paid the filing fee nor filed an

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application to proceed in forma pauperis (“IFP”). The notices indicated that the case

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would be dismissed if Plaintiff did not file a complaint or either pay the fee or file a

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completed IFP application within thirty days. As the Court did not receive a complaint, a

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filing fee, or an IFP application in a timely fashion the case was dismissed on July 26,

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2011. Shortly thereafter, on July 29, 2011, the Court received a complaint dated July 5,

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2011 and an IFP application. Plaintiff has also submitted documentation showing good

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cause for the delay in filing such materials. Consequently, the dismissal order and

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judgment are VACATED, the case is REOPENED, and the Court reviews the complaint

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pursuant to 28 U.S.C. § 1915A and dismisses it with leave to amend. Plaintiff is granted

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leave to proceed in forma pauperis in a separate order.

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DISCUSSION
I.

Standard of Review

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

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seek redress from a governmental entity or officer or employee of a governmental entity.

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28 U.S.C. § 1915A(a). The Court must identify cognizable claims or dismiss any portion

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of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon

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which relief may be granted,” or “seeks monetary relief from a defendant who is immune

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from such relief.” Id. § 1915A(b). Pro se pleadings must be liberally construed.

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Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement

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of the claim showing that the pleader is entitled to relief." "Specific facts are not

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necessary; the statement need only '"give the defendant fair notice of what the . . . . claim

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is and the grounds upon which it rests."'" Erickson v. Pardus, 127 S. Ct. 2197, 2200

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(2007) (citations omitted). Although in order to state a claim a complaint “does not need

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detailed factual allegations, . . . a plaintiff's obligation to provide the 'grounds of his

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'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic

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recitation of the elements of a cause of action will not do. . . . Factual allegations must

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be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v.

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Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint must proffer

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"enough facts to state a claim for relief that is plausible on its face." Id. at 1974. Pro se

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pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696,

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699 (9th Cir. 1990).

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

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

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(2) that the alleged violation was committed by a person acting under the color of state

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law. West v. Atkins, 487 U.S. 42, 48 (1988).

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II.

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Legal Claims
Plaintiff alleges that he has been “wrongly” classified as an active associate of a

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prison gang and consequently “illegally retained” in Pelican Bay State Prison’s

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segregated housing unit (“SHU”).

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There are two problems with this claim. The Court assumes at this stage of

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liberally construing Plaintiff’s pleadings that his placement in segregated housing based

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on gang membership implicates a liberty interested protected by due process. See

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Wilkinson v. Austin, 545 U.S. 209, 223-25 (2005); See generally Sandin v. Conner, 515

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U.S. 472, 484-87 (1995). However, the fact that Plaintiff may have been placed in

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segregated housing “wrongly” or incorrectly does not raise a due process issue. The

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Constitution demands only that he be provided with adequate procedural safeguards in

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conjunction with his segregation to satisfy due process, but it does not require that the

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decision to segregate him be error-free. See Ricker v. Leapley, 25 F.3d 1406, 1410 (8th

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Cir. 1994); McCrae v. Hankins, 720 F.2d 863, 868 (5th Cir. 1983).

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Due process requires: (1) an informal nonadversary hearing within a reasonable

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time after the prisoner is segregated, (2) the prisoner be informed of the charges against

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him or the reasons segregation is being considered, and (3) the prisoner must be allowed

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to present his views. See Toussaint v. McCarthy, 801 F.2d at 1100. Due process does

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not require detailed written notice of charges, representation by counsel or counsel-

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substitute, an opportunity to present witnesses, a written decision describing the reasons

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for placing the prisoner in administrative segregation or disclosure of the identity of any

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person providing information leading to placement of a prisoner in administrative

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segregation. Id. at 1100-01; accord Wilkinson, 545 U.S. at 228-29. In addition, "some

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evidence" must support the decision to place an inmate in a SHU for gang affiliation.

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Bruce v. Ylst, 351 F.3d 1283, 1287-88 (9th Cir. 2003) (noting that any one of three

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pieces of evidence -- a sheriff’s department report that prisoner was a gang member, a

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probation report that prisoner’s codefendant was a gang member, and a statement from a

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prison informant -- would constitute “some evidence”). Lastly, following placement in

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administrative segregation, prison officials must engage in some sort of periodic review

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of the inmate's confinement. Toussaint, 801 F.2d at 1101.

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Plaintiff’s allegation more than that the officials’ decision that he is a gang

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associate is wrong does not on its own state a cognizable claim under Section 1983 for

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the violation of his right to due process. Plaintiff will be given leave to file an amended

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complaint to correct this deficiency by alleging, if he can do so in good faith, that he was

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not given one of the procedural safeguards guaranteed by due process described above.

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There is a second deficiency in his complaint. He only names as defendants the

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Pelican Bay Warden, G.D. Lewis, and the Director of the California Department of

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Corrections and Rehabilitation (“CDCR”), Matthew Cate. Plaintiff cannot sue

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supervisory officials, such as the Defendants, under Section 1983 on the theory that they

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are responsible for the actions of all of the people who work at Pelican Bay. See Taylor

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v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). To state a cognizable claim under Section

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1983, Plaintiff must name as defendants only those officials whose actions or omissions

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caused the alleged violation of his constitutional rights, such as the classification officials

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who decided to segregate him. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988).

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Plaintiff does not allege any personal involvement by Lewis or Cate in the decision to

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segregate him. In his amended complaint, plaintiff must cure this deficiency by only

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naming as defendants those individuals whose actions or omissions caused the violation

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of his constitutional rights, and alleging what those actions or omissions were.

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CONCLUSION
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The order of dismissal and judgment are VACATED. The Clerk shall

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REOPEN the file and shall file the complaint received by the Court on July 29, 2011

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(docket number 7).

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2.

The complaint is DISMISSED WITH LEAVE TO AMEND. Plaintiff

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shall file an amended complaint that corrects the deficiencies described above within

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thirty (30) days from the date this order is filed. The amendment must include the

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caption and civil case number used in this order (Case No. C 11-3046 JSW (PR)) and the

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words “COURT-ORDERED FIRST AMENDED COMPLAINT” on the first page.

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Because an amended complaint completely replaces the original complaint, see Ferdik v.

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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992), Plaintiff may not incorporate material

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from the original or amended complaints by reference. Failure to amend within the

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designated time and in accordance with this order will result in the dismissal of this

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action.

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3. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the

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Court informed of any change of address and must comply with the Court's orders in a

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timely fashion. Failure to do so may result in the dismissal of this action under Federal

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Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.
DATED: September 19, 2011

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JEFFREY S. WHITE
United States District Judge

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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ANTHONY STITT,

Case Number: CV11-03046 JSW

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Plaintiff,

CERTIFICATE OF SERVICE

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v.

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G. D. LEWIS, Warden et al,

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Defendant.

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on September 19, 2011, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office
delivery receptacle located in the Clerk's office.

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Anthony Stitt
Pelican Bay State Prison
#J95688
P.O. Box 7500
Crescent City, CA 95532

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Dated: September 19, 2011

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Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk