Filing 19

ORDER OF DISMISSAL by Judge William Alsup denying 12 Motion Phone CallsPhone Calls; denying 16 Motion Phone CallsPhone Calls (Attachments: # 1 Certificate/Proof of Service) (dt, COURT STAFF) (Filed on 12/21/2012)

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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 No. C 12-3916 WHA (PR) ORDER OF DISMISSAL; DENYING MOTIONS FOR PHONE CALLS Plaintiff, For the Northern District of California United States District Court JAMES BRIAN HAMILTON, 11 12 v. 13 14 15 16 17 D.G. METCALF; SGT. VERTASOTO; SGT. CORONA; CORRECTIONAL OFFICER MORALES; CORRECTIONAL OFFICER RANGEL; D. SILVA; S. MAUGHMER; ASSISTANT WARDEN SPEARMAN; ASSISTANT WARDEN WHITE; R. QUINTERA, (Docket Nos. 12, 15) 18 Defendants 19 / 20 INTRODUCTION 21 Plaintiff, a California prisoner proceeding pro se, filed this civil rights action under 42 22 23 U.S.C. 1983. The complaint was dismissed with leave to amend. Plaintiff has filed a timely 24 amended complaint (docket number 15). For the reasons discussed below, the case is 25 DISMISSED. ANALYSIS 26 27 28 A. STANDARD OF REVIEW Federal courts must engage in a preliminary screening of cases in which prisoners seek 1 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 2 § 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims 3 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 4 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro 5 se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 6 (9th Cir. 1990). 7 Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the statement need only '"give the defendant fair notice of what the . . . . claim is and the grounds 10 upon which it rests."'" Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted). 11 For the Northern District of California claim showing that the pleader is entitled to relief." "Specific facts are not necessary; the 9 United States District Court 8 Although in order to state a claim a complaint “does not need detailed factual allegations, . . . a 12 plaintiff's obligation to provide the 'grounds of his 'entitle[ment] to relief' requires more than 13 labels and conclusions, and a formulaic recitation of the elements of a cause of action will not 14 do. . . . Factual allegations must be enough to raise a right to relief above the speculative 15 level." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A 16 complaint must proffer "enough facts to state a claim for relief that is plausible on its face." Id. 17 at 1974. 18 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 19 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) 20 that the alleged deprivation was committed by a person acting under the color of state law. 21 West v. Atkins, 487 U.S. 42, 48 (1988). 22 B. 23 LEGAL CLAIMS In his amended complaint, plaintiff alleges that defendant Metcalf, a Lieutenant at the 24 California Training Facility (“CTF”), where he was formerly incarcerated, transported and used 25 tobacco on state property in the presence of inmates and other CTF officials. Similar 26 allegations in the original complaint were dismissed because plaintiff did not allege how such 27 conduct affected him. He still does not. He claims in conclusory fashion that this constituted 28 disregard for his “safety” because it violated prison rules and regulations. Plaintiff has not 2 1 alleged how defendants’ breaking of such rules and regulations in and of itself made him 2 unsafe. Consequently, the allegations that Metcalf broke prison rules and regulations, and other 3 defendants’ alleged knowledge of this conduct, do not state a cognizable claim for relief. 4 Plaintiff has also alleged that he has been subject to “reprisals,” such as improper 5 processing of his administrative appeals, backdating decisions on his classification, and “new 6 lock up orders,” because of his knowledge of Metcalf’s misconduct. It was explained to 7 plaintiff when the original complaint was dismissed that retaliation for his knowledge of 8 officials’ illegal activity is not actionable retaliation because plaintiff’s knowing about that 9 activity is not an exercise of his constitutional rights. See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); Hines v. Gomez, 108 F.3d 265, 267-68 (9th Cir. 1997) (retaliation action 11 For the Northern District of California United States District Court 10 requires retaliation for exercise of his constitutional rights). Consequently his allegations about 12 reprisals do not state a cognizable claim for retaliation. The alleged delays in processing his 13 administrative grievances and the alleged backdating of classification decisions also do not 14 violate his constitutional rights because there is no constitutional right to an administrative 15 appeal system, see Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003), or any authority that 16 backdating classification reports violates the federal constitutional right to due process, see 17 Barnett v. Centoni, 31 F.3d 813, 815 (9th Cir. 1994) (reclassification requires at most only 18 notice and hearing); Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987) . 19 Finally, the proper venue for plaintiff’s new allegations about conduct by prison officials 20 at the Wasco State Prison (“Wasco”) is the United States District Court for the Eastern District 21 of California, where Wasco is located. Plaintiff’s claims pertaining to events occurring there 22 are dismissed without prejudice to his refiling them in the Eastern District. 23 24 As the amended complaint does not cure the deficiencies from his original complaint that were identified for him, further leave to amend would be futile and will not be granted. 25 26 27 28 3 CONCLUSION 1 2 3 4 5 For the foregoing reasons, this case is DISMISSED. The motions for phone calls (dkt.12, 15) are DENIED. The clerk shall enter judgment and close the file. IT IS SO ORDERED. Dated: December 20 , 2012. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 G:\PRO-SE\WHA\CR.12\HAMILTON3916.DSM.wpd 25 26 27 28 4

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