Stitt

Filing 16

ORDER OF DISMISSAL. Signed by Judge JEFFREY S. WHITE on 10/26/11. (jjoS, COURT STAFF) (Filed on 10/26/2011)

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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 OF DISMISSAL

(Docket No. 15)

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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. He has filed an amended complaint. The

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Court reviews the amended complaint pursuant to 28 U.S.C. § 1915A and dismisses it for

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failure to state a cognizable claim for relief.

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DISCUSSION
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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).

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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 appeared fore a hearing before PBSP’s “Unit

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Classification Committee” (“UCC”) for a determination of whether he should be retained

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in the Secured Housing Unit (“SHU”). At the hearing, Defendant Wilbur determined

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that he should stay in the SHU because he is actively involved in a gang activity.

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Plaintiff contends that this decision was wrong, and that it violates due process because it

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contravenes pertinent California regulations and a settlement agreement reached in a

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class action involving PBSP.

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In the order dismissing the original complaint with leave to amend, the Court

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explained the scope of due process in the context placement in segregated housing. 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). In particular, it was explained that the fact that Plaintiff may

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have been placed in segregated housing “wrongly” or incorrectly does not raise a due

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process issue because the Constitution demands only adequate procedural safeguards, not

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that the decision to segregate him be error-free. See Ricker v. Leapley, 25 F.3d 1406,

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1410 (8th Cir. 1994); McCrae v. Hankins, 720 F.2d 863, 868 (5th Cir. 1983). Plaintiff

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was informed that due process requires: (1) an informal nonadversary hearing within a

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

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charges against him or the reasons segregation is being considered, (3) the prisoner must

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be allowed to present his views, (4) periodic review of the inmate's confinement.

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Toussaint, 801 F.2d at 1100-01, and "some evidence" to support the officials’ decision,

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see Bruce v. Ylst, 351 F.3d 1283, 1287-88 (9th Cir. 2003).

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Here plaintiff does not allege that Defendants failed to meet any of the foregoing

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due process requirements. Rather, he contends that a settlement agreement in a prior

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class action required the sources of evidence relied upon to find him gang-affiliated to be

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counted as part of a single gang-related incident, rather than as separate incidents. Such

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counting is not required by due process; Plaintiff may seek to enforce the settlement

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agreement in the class action case, provided he is a covered member of that class, but not

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in a separate lawsuit brought by him individually. See McNeil v. Guthrie, 945 F.2d 1163,

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1165 (10th Cir. 1991) (individual suits for injunctive and equitable relief from alleged

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unconstitutional prison conditions cannot be brought where there is a pending class

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action suit involving the same subject matter). Plaintiff also contends that he was not

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involved “periodically or regularly” with gang members, as required by the 15 Cal. Code

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of Regs. § 3378(c)(4). This may be a requirement of the state regulations, but it is not a

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requirement of due process prior to being placed in segregated housing. As Plaintiff’s

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allegations, even when liberally construed, do not state a due process violation, his

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claims must be dismissed. As Plaintiff was given a second opportunity to state a

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cognizable claim and failed to do so, the Court concludes that further attempts to amend

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would be futile and that Plaintiff cannot cure the deficiencies in his claim by amendment.

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Consequently, further leave to amend will not be granted.

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CONCLUSION

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For the foregoing reasons, this action is DISMISSED. Plaintiff’s motion for

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appointment of counsel (docket number 15) is DENIED. The Clerk shall enter judgment

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and close the file.

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IT IS SO ORDERED.

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DATED: October 26, 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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// 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 October 26, 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: October 26, 2011

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