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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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 TREANDOUS COTTON, No. C 13-5891 WHA (PR) Plaintiff, 9 ORDER OF DISMISSAL; DENYING MOTION FOR APPOINTMENT OF COUNSEL v. 11 For the Northern District of California United States District Court 10 JEFFREY BEARD; RANDY GROUNDS; MATTHEW CATE; MEDAN; N. WALKER; DOES 1-10, 12 Defendants. 13 (Docket No. 4) / 14 15 INTRODUCTION 16 Plaintiff, a California prisoner, filed this pro se civil rights action pursuant to 42 U.S.C. 17 1983. He is granted leave to proceed in forma pauperis in a separate order. Based on a review 18 of his complaint pursuant to 28 U.S.C. 1915, the complaint is dismissed for failure to state a 19 cognizable claim for relief. 20 21 ANALYSIS A. STANDARD OF REVIEW 22 Federal courts must engage in a preliminary screening of cases in which prisoners seek 23 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 24 § 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims 25 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 26 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro 27 se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 28 (9th Cir. 1990). 1 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 4 upon which it rests."'" Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted). 5 Although in order to state a claim a complaint “does not need detailed factual allegations, . . . a 6 plaintiff's obligation to provide the 'grounds of his 'entitle[ment] to relief' requires more than 7 labels and conclusions, and a formulaic recitation of the elements of a cause of action will not 8 do. . . . Factual allegations must be enough to raise a right to relief above the speculative 9 level." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A 10 complaint must proffer "enough facts to state a claim for relief that is plausible on its face." Id. 11 For the Northern District of California claim showing that the pleader is entitled to relief." "Specific facts are not necessary; the 3 United States District Court 2 at 1974. 12 B. 13 LEGAL CLAIMS Plaintiff alleges that on May 30, 2012, and again on November 15, 2012, officials at 14 Salinas Valley State Prison (“SVSP”) placed all members and associates of the “crips” gang on 15 a “modified program.” He argues that prison officials incorrectly determined that he was a 16 member of that gang. This modified program consisted of a loss of contact visits, phone calls, 17 outdoor exercise, and modified movement and canteen privileges. Plaintiff does not say how 18 long the modified program lasted, but he does allege that they were again placed on the 19 modified program on November 15, 2012, for approximately one month. 20 Plaintiff claims that his identification as a Crip violated his rights under the Equal 21 Protection Clause. "The Equal Protection Clause of the Fourteenth Amendment commands that 22 no State shall 'deny to any person within its jurisdiction the equal protection of the laws,' which 23 is essentially a direction that all persons similarly situated should be treated alike." City of 24 Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). Plaintiff’s allegations show that 25 he was not treated differently than any similarly situated inmates. Indeed, he alleges that all 26 other inmates that were found to Crips were placed on the modified program like plaintiff. He 27 alleges that he was incorrectly identified as a gang member. while others were properly 28 identified as such. He claims that the process of documenting his gang membership with 2 1 specific types of evidence, as provided by prison regulations, was not followed in his case. He 2 does not, however, allege that this process was followed for all other similarly situated inmates. 3 Even if he did, or could, so allege, in order to establish an equal protection “class of one” claim, 4 plaintiff would have to demonstrate that the state actor (1) intentionally (2) treated him 5 differently than other similarly situated persons, (3) without a rational basis. Gerhart v. Lake 6 County Montana, 637 F.3d 1013, 1020 (9th Cir. 2011). Plaintiff has not alleged intentional 7 discrimination against him. 8 9 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, 11 For the Northern District of California United States District Court 10 among other things, the deprivation imposes "atypical and significant hardship on the inmate in 12 relation to the ordinary incidents of prison life" or "will inevitably affect the duration of [a] 13 sentence." Sandin v. Conner, 515 U.S. 477-87 (1995). The modified program alleged by 14 plaintiff does not affect the duration of his confinement. Nor is it severe enough to amount to 15 "atypical and significant" under Sandin. This determination requires consideration of: "1) 16 whether the challenged condition 'mirrored those conditions imposed upon inmates in 17 administrative segregation and protective custody,' and thus comported with the prison's 18 discretionary authority; 2) the duration of the condition, and the degree of restraint imposed; 19 and 3) whether the state's action will invariably affect the duration of the prisoner’s sentence." 20 requires a case by case consideration. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003). 21 The modified program alleged here is less than severe than administrative segregation insofar as 22 plaintiff was not segregated; it was of limited duration, and it did not impact the duration of 23 plaintiff’s sentence. As such, the modified program that resulted from identifying plaintiff as a 24 gang member was not a deprivation of real substance so as to implicate a state-created liberty 25 interest protected by due process under Sandin. See, e.g., Myron v. Terhune, 476 F.3d 716, 718- 26 19 (9th Cir. 2007) (classification for California Level IV prison rather than Level III prison not 27 shown to be an atypical and significant hardship); Mujahid v. Meyer, 59 F.3d 931, 932 (9th Cir. 28 1995) (under Sandin no liberty interest when inmate placed in disciplinary segregation for 14 3 1 days). 2 Plaintiff also claims that the failure to properly process his administrative appeals 3 violated his right to due process. Errors in processing or deciding administrative appeals do not 4 violate a prisoner’s right to due process because there is no constitutional right to a prison 5 administrative appeal or grievance system. See Ramirez, 334 F.3d at 860. Consequently, the 6 failure to properly process his administrative appeals, while it may excuse his obligation to 7 exhaust to the highest level of review, does not violate his constitutional rights. 8 CONCLUSION 9 claim for relief. Plaintiff’s motion for “appointment” of counsel is DENIED. There is no constitutional 11 For the Northern District of California United States District Court 10 For the reasons set out above, this action is DISMISSED for failure to state a cognizable 12 right to counsel in a civil case. Lassiter v. Dep't of Social Services, 452 U.S. 18, 25 (1981). 13 Section 1915 confers on a district court only the power to "request" that counsel represent a 14 litigant who is proceeding in forma pauperis, not the power to “appoint” counsel. 28 U.S.C. § 15 1915(e)(1). In any case, the claims in this case are not particularly complex and are without 16 merit. 17 The clerk shall enter judgment and close the file. 18 IT IS SO ORDERED. 19 Dated: February 20 6 , 2014. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28 4

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