Cotton v. Beard et al

Filing 6

ORDER OF DISMISSAL; DENYING MOTION FOR APPOINTMENT OF COUNSEL by Judge William Alsup denying 4 Motion to Appoint Counsel (Attachments: # 1 Certificate/Proof of Service) (dt, COURT STAFF) (Filed on 2/6/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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TREANDOUS COTTON,

No. C 13-5891 WHA (PR)

Plaintiff,

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ORDER OF DISMISSAL; DENYING
MOTION FOR APPOINTMENT OF
COUNSEL

v.

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For the Northern District of California

United States District Court

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JEFFREY BEARD; RANDY
GROUNDS; MATTHEW CATE;
MEDAN; N. WALKER; DOES 1-10,

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Defendants.

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(Docket No. 4)
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INTRODUCTION

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Plaintiff, a California prisoner, filed this pro se civil rights action pursuant to 42 U.S.C.

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1983. He is granted leave to proceed in forma pauperis in a separate order. Based on a review

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of his complaint pursuant to 28 U.S.C. 1915, the complaint is dismissed for failure to state a

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cognizable claim for relief.

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ANALYSIS
A.

STANDARD OF REVIEW

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

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims

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which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek

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monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro

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se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699

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(9th Cir. 1990).

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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

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upon which it rests."'" Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted).

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Although in order to state a claim a complaint “does not need detailed factual allegations, . . . a

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plaintiff's obligation to provide the 'grounds of his 'entitle[ment] to relief' requires more than

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labels and conclusions, and a formulaic recitation of the elements of a cause of action will not

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do. . . . Factual allegations must be enough to raise a right to relief above the speculative

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level." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A

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complaint must proffer "enough facts to state a claim for relief that is plausible on its face." Id.

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For the Northern District of California

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

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United States District Court

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at 1974.

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B.

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LEGAL CLAIMS
Plaintiff alleges that on May 30, 2012, and again on November 15, 2012, officials at

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Salinas Valley State Prison (“SVSP”) placed all members and associates of the “crips” gang on

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a “modified program.” He argues that prison officials incorrectly determined that he was a

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member of that gang. This modified program consisted of a loss of contact visits, phone calls,

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outdoor exercise, and modified movement and canteen privileges. Plaintiff does not say how

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long the modified program lasted, but he does allege that they were again placed on the

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modified program on November 15, 2012, for approximately one month.

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Plaintiff claims that his identification as a Crip violated his rights under the Equal

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Protection Clause. "The Equal Protection Clause of the Fourteenth Amendment commands that

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no State shall 'deny to any person within its jurisdiction the equal protection of the laws,' which

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is essentially a direction that all persons similarly situated should be treated alike." City of

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Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). Plaintiff’s allegations show that

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he was not treated differently than any similarly situated inmates. Indeed, he alleges that all

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other inmates that were found to Crips were placed on the modified program like plaintiff. He

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alleges that he was incorrectly identified as a gang member. while others were properly

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identified as such. He claims that the process of documenting his gang membership with
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specific types of evidence, as provided by prison regulations, was not followed in his case. He

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does not, however, allege that this process was followed for all other similarly situated inmates.

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Even if he did, or could, so allege, in order to establish an equal protection “class of one” claim,

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plaintiff would have to demonstrate that the state actor (1) intentionally (2) treated him

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differently than other similarly situated persons, (3) without a rational basis. Gerhart v. Lake

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County Montana, 637 F.3d 1013, 1020 (9th Cir. 2011). Plaintiff has not alleged intentional

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discrimination against him.

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Plaintiff’s allegations about his identification as a gang member also do not state a claim
for the violation of his right to due process. Deprivations that are authorized by state law and
are may amount to deprivations of a procedurally protected liberty interest, provided that,

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For the Northern District of California

United States District Court

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among other things, the deprivation imposes "atypical and significant hardship on the inmate in

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relation to the ordinary incidents of prison life" or "will inevitably affect the duration of [a]

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sentence." Sandin v. Conner, 515 U.S. 477-87 (1995). The modified program alleged by

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plaintiff does not affect the duration of his confinement. Nor is it severe enough to amount to

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"atypical and significant" under Sandin. This determination requires consideration of: "1)

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whether the challenged condition 'mirrored those conditions imposed upon inmates in

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administrative segregation and protective custody,' and thus comported with the prison's

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discretionary authority; 2) the duration of the condition, and the degree of restraint imposed;

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and 3) whether the state's action will invariably affect the duration of the prisoner’s sentence."

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requires a case by case consideration. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003).

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The modified program alleged here is less than severe than administrative segregation insofar as

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plaintiff was not segregated; it was of limited duration, and it did not impact the duration of

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plaintiff’s sentence. As such, the modified program that resulted from identifying plaintiff as a

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gang member was not a deprivation of real substance so as to implicate a state-created liberty

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interest protected by due process under Sandin. See, e.g., Myron v. Terhune, 476 F.3d 716, 718-

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19 (9th Cir. 2007) (classification for California Level IV prison rather than Level III prison not

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shown to be an atypical and significant hardship); Mujahid v. Meyer, 59 F.3d 931, 932 (9th Cir.

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1995) (under Sandin no liberty interest when inmate placed in disciplinary segregation for 14
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days).

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Plaintiff also claims that the failure to properly process his administrative appeals

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violated his right to due process. Errors in processing or deciding administrative appeals do not

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violate a prisoner’s right to due process because there is no constitutional right to a prison

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administrative appeal or grievance system. See Ramirez, 334 F.3d at 860. Consequently, the

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failure to properly process his administrative appeals, while it may excuse his obligation to

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exhaust to the highest level of review, does not violate his constitutional rights.

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CONCLUSION

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claim for relief.
Plaintiff’s motion for “appointment” of counsel is DENIED. There is no constitutional

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For the Northern District of California

United States District Court

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For the reasons set out above, this action is DISMISSED for failure to state a cognizable

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right to counsel in a civil case. Lassiter v. Dep't of Social Services, 452 U.S. 18, 25 (1981).

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Section 1915 confers on a district court only the power to "request" that counsel represent a

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litigant who is proceeding in forma pauperis, not the power to “appoint” counsel. 28 U.S.C. §

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1915(e)(1). In any case, the claims in this case are not particularly complex and are without

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merit.

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The clerk shall enter judgment and close the file.

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IT IS SO ORDERED.

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Dated: February
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, 2014.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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