Fikri Bayramoglu v. E Banales et al

Filing 10

ORDER OF SERVICE. Signed by Judge JEFFREY S. WHITE on 12/21/11. (jjoS, COURT STAFF) (Filed on 12/21/2011)

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 10 11 12 13 14 FIKRI BAYRAMOGLU, ) ) Plaintiff, ) ) v. ) ) ) E. BANALES, et al., ) ) Defendant. __________________________________ ) No. C 11-3556 JSW (PR) ORDER OF SERVICE (Docket Nos. 11, 21, 23) 15 16 INTRODUCTION 17 Plaintiff, a California prisoner proceeding pro se, filed this pro se civil rights 18 action pursuant to 42 U.S.C. § 1983 against a number of officials at the California 19 Training Facility in Soledad, California, where Plaintiff was formerly incarcerated. He 20 has also applied for leave to proceed in forma pauperis in a separate order. The Court 21 now reviews the amended complaint and dismisses it for failure to state a cognizable 22 claim for relief. 23 DISCUSSION 24 I. Standard of Review 25 Federal courts must engage in a preliminary screening of cases in which prisoners 26 seek redress from a governmental entity or officer or employee of a governmental entity. 27 28 U.S.C. § 1915A(a). The Court must identify cognizable claims or dismiss any portion 28 1 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon 2 which relief may be granted,” or “seeks monetary relief from a defendant who is immune 3 from such relief.” Id. § 1915A(b). Pro se pleadings must be liberally construed. 4 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 5 6 of the claim showing that the pleader is entitled to relief." "Specific facts are not 7 necessary; the statement need only '"give the defendant fair notice of what the . . . . claim 8 is and the grounds upon which it rests."'" Erickson v. Pardus, 127 S. Ct. 2197, 2200 9 (2007) (citations omitted). Although in order to state a claim a complaint “does not need 10 detailed factual allegations, . . . a plaintiff's obligation to provide the 'grounds of his 11 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic 12 recitation of the elements of a cause of action will not do. . . . Factual allegations must 13 be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. 14 Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint must proffer 15 "enough facts to state a claim for relief that is plausible on its face." Id. at 1974. The 16 United States Supreme Court has recently explained the “plausible on its face” standard 17 of Twombly: “[w]hile legal conclusions can provide the framework of a complaint, they 18 must be supported by factual allegations. When there are well-pleaded factual 19 allegations, a court should assume their veracity and then determine whether they 20 plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 21 (2009). 22 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) 23 that a right secured by the Constitution or laws of the United States was violated, and (2) 24 that the alleged violation was committed by a person acting under the color of state law. 25 West v. Atkins, 487 U.S. 42, 48 (1988). 26 II. Plaintiff’s Claims 27 1. 28 Plaintiff claims that Defendant Banales engaged in “inappropriate, unprofessional Verbal Harassment 1 behavior” by using “extreme vulgar” language.1 (Complaint at 5.) Allegations of verbal 2 harassment and abuse fail to state a claim cognizable under 42 U.S.C. § 1983. See 3 Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir. 1997); see, e.g., Keenan v. Hall, 83 F.3d 4 1083, 1092 (9th Cir. 1996), amended 135 F.3d 1318 (9th Cir. 1998) (disrespectful and 5 assaultive comments by prison guard not enough to implicate 8th Amendment); 6 Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (directing vulgar language at 7 prisoner does not state constitutional claim); Burton v. Livingston, 791 F.2d 97, 99 (8th 8 Cir. 1986) ("mere words, without more, do not invade a federally protected right"); 9 Ellingburg v. Lucas, 518 F.2d 1196, 1197 (8th Cir. 1975) (prisoner does not have cause 10 of action under § 1983 for being called obscene name by prison employee). 11 Consequently, the claim against Defendant Banales will be dismissed for failure to state 12 a cognizable claim for relief. 13 2. Disciplinary Proceedings 14 Plaintiff claims that Defendant Hancock “fabricat[ed] a bogus trump-up” 15 disciplinary charge against Plaintiff for “threatening staff” when he filed a staff 16 complaint. (Complaint at 5.) He claims that Defendant Vera found him guilty for these 17 “fabricated” charges. (Complaint, Supplement at 1-2.)2 He claims that Defendant 18 Santiago conspired with them by denying his appeal of the guilty finding. (Complaint, 19 Supplement at 2-3.) He seeks to have the disciplinary violation expunged from his 20 record. (Complaint at 6.) Plaintiff claims that these actions violated his First and 21 Fourteenth Amendments. 22 The fact that a prisoner may have been innocent of disciplinary charges does not 23 raise a due process issue; the Constitution demands due process, not error-free decision- 24 making. See Ricker v. Leapley, 25 F.3d 1406, 1410 (8th Cir. 1994); McCrae v. Hankins, 25 26 27 28 1 He does not state what Banales said, but the attachments to the complaint indicate he called Plaintiff a “mother [expletive]” and said that he would “[expletive] your mother.” 2 The supplemental is attached to the form complaint. 1 720 F.2d 863, 868 (5th Cir. 1983). Consequently, the claim that Defendants Hancock 2 and Vera violated his Fourteenth Amendment rights by disciplining him for charges of 3 which he is innocent does not state a cognizable claim for relief. 4 Plaintiff alleges that the disciplinary measures were taken for statements he made 5 in an administrative complaint about staff, and that these statements were protected by 6 the First Amendment. When liberally construed, these allegations state a cognizable 7 claim under the First Amendment for retaliation for Plaintiff’s exercise of his First 8 Amendment rights. See generally Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 9 2005) (footnote omitted); Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995). 10 3. Administrative Appeals 11 Plaintiff claims that Defendant Santiago failed improperly processed and denied 12 appeals of administrative grievances. The denial or failure to process administrative 13 grievances to process administrative is not a cognizable claim for relief because there is 14 no constitutional right to a prison administrative appeal or grievance system. See 15 Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams, 855 F.2d 639, 16 640 (9th Cir. 1988). Consequently, the claims against Defendant Santiago for denying 17 administrative appeals and improperly processing them is not cognizable. 18 4. 19 Plaintiff alleges that Defendant D. Branch applied handcuffs on Plaintiff Excessive Force 20 unnecessarily tightly and high on his arms. When liberally construed, this claim is 21 cognizable as a violation of the Eighth Amendment by the use of excessive force. 22 CONCLUSION 23 For the foregoing reasons, 24 1. The claims against Defendants Branch, Santiago, Vera, and Hancock under the 25 First and Eighth Amendments as described above are allowed to proceed. All other 26 claims are DISMISSED. 27 28 2. The Clerk of the Court shall issue summons and the United States Marshal shall serve, without prepayment of fees, a copy of the complaint and all attachments 1 thereto, and a copy of this order upon Defendants: Lieutenant C.C. Hancock, 2 Lieutenant J. Vera, Appeals Coordinator A. P. Santiago, and Correctional Officer 3 D. Branch at the California Training Facility in Soledad, California. 4 5 The Clerk shall also mail a courtesy copy of the complaint and this order to the California Attorney General’s Office. 6 The Clerk shall also serve a copy of this order on Plaintiff. 7 3. 8 9 10 Defendants shall answer the complaint in accordance with the Federal Rules of Civil Procedure. 4. In order to expedite the resolution of this case, the Court orders as follows: a. No later than ninety (90) days from the date this order is filed, 11 Defendants shall either file a motion for summary judgment or other dispositive motion, 12 or a notice to the Court that they are of the opinion that this matter cannot be resolved by 13 dispositive motion. The motion shall be supported by adequate factual documentation 14 and shall conform in all respects to Federal Rule of Civil Procedure 56. 15 Defendants are advised that summary judgment cannot be granted, nor 16 qualified immunity found, if material facts are in dispute. If defendants are of the 17 opinion that this case cannot be resolved by summary judgment, they shall so 18 inform the Court prior to the date the summary judgment motion is due. 19 All papers filed with the Court shall be promptly served on the Plaintiff. 20 b. Plaintiff's opposition to the dispositive motion, if any, shall be filed with 21 the court and served upon defendants no later than thirty days from the date of service of 22 the motion. Plaintiff must read the attached page headed “NOTICE -- WARNING,” 23 which is provided to him pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 24 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). 25 If defendants file an unenumerated motion to dismiss claiming that plaintiff failed 26 to exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a), 27 plaintiff should take note of the attached page headed “NOTICE -- WARNING 28 (EXHAUSTION).” See Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 (9th Cir. 2003) 1 2 c. Defendants shall file a reply brief no later than fifteen (15) days after Plaintiff's opposition is filed. 3 4 5 d. The motion shall be deemed submitted as of the date the reply brief is due. No hearing will be held on the motion unless the Court so orders at a later date. 5. Discovery may be taken in accordance with the Federal Rules of Civil 6 Procedure. No further Court order under Federal Rule of Civil Procedure 30(a)(2) or 7 Local Rule 16 is required before the parties may conduct discovery. 8 9 10 6. Extensions of time are not favored, though reasonable extensions will be granted. Any motion for an extension of time must be filed no later than five days prior to the deadline sought to be extended. 11 7. All communications by Plaintiff with the Court must be served on Defendant, 12 or Defendant’s counsel once counsel has been designated, by mailing a true copy of the 13 document to Defendant or Defendant’s counsel. 14 8. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the 15 Court informed of any change of address and must comply with the Court’s orders in a 16 timely fashion. Failure to do so may result in the dismissal of this action for failure to 17 prosecute pursuant to Federal Rule of Civil Procedure 41(b). 18 19 IT IS SO ORDERED. DATED: 20 21 22 23 24 25 26 27 28 JEFFREY S. WHITE United States District Judge 1 2 NOTICE -- WARNING (SUMMARY JUDGMENT) If defendants move for summary judgment, they are seeking to have your case 3 dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil 4 Procedure will, if granted, end your case. 5 Rule 56 tells you what you must do in order to oppose a motion for summary judgment. 6 Generally, summary judgment must be granted when there is no genuine issue of material 7 fact--that is, if there is no real dispute about any fact that would affect the result of your case, 8 the party who asked for summary judgment is entitled to judgment as a matter of law, which 9 will end your case. When a party you are suing makes a motion for summary judgment that is 10 properly supported by declarations (or other sworn testimony), you cannot simply rely on what 11 your complaint says. Instead, you must set out specific facts in declarations, depositions, 12 answers to interrogatories, or authenticated documents, as provided in Rule 56(e), that 13 contradict the facts shown in the defendant's declarations and documents and show that there is 14 a genuine issue of material fact for trial. If you do not submit your own evidence in opposition, 15 summary judgment, if appropriate, may be entered against you. If summary judgment is granted, 16 your case will be dismissed and there will be no trial. 17 18 19 20 NOTICE -- WARNING (EXHAUSTION) If defendants file an unenumerated motion to dismiss for failure to exhaust, they are seeking to have your case dismissed. If the motion is granted it will end your case. You have the right to present any evidence you may have which tends to show that you 21 did exhaust your administrative remedies. Such evidence may be in the form of declarations 22 (statements signed under penalty of perjury) or authenticated documents, that is, documents 23 accompanied by a declaration showing where they came from and why they are authentic, or 24 other sworn papers, such as answers to interrogatories or depositions. 25 26 27 28 If defendants file a motion to dismiss and it is granted, your case will be dismissed and there will be no trial. 1 UNITED STATES DISTRICT COURT 2 FOR THE 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 FIKRI BAYRAMOGLU, Case Number: CV11-03556 JSW 6 Plaintiff, CERTIFICATE OF SERVICE 7 v. 8 E. BANALES et al, 9 Defendant. 10 11 12 13 14 / 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 December 21, 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. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Fikri Bayramoglu C-54604 Chuckawalla Valley State Prison P.O. Box 2349 Blythe, CA 92226 Dated: December 21, 2011 Richard W. Wieking, Clerk By: Jennifer Ottolini, Deputy Clerk

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