Taylor v. Jones et al

Filing 13

ORDER by Judge Vince Chhabria denying 3 Motion to Appoint Counsel ; denying 4 Motion to Certify Class; denying 7 Motion to Certify Class; granting 8 Motion to Amend/Correct ; Plaintiff Taylor is required to file the amended document. Amended Complaint due by 6/4/2014. (Attachments: # 1 Certificate/Proof of Service) (knm, COURT STAFF) (Filed on 5/15/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RALPH A. TAYLOR, on his own behalf and
on behalf of a class of similarly situated New
Afrikan prisoners,
Plaintiffs,

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v.
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EDMUND G. BROWN, JR. Governor, et al.,
Defendants.

ORDER DISMISSING WITH LEAVE
TO AMEND; DENYING MOTION TO
APPOINT COUNSEL; DENYING
MOTIONS FOR CLASS
CERTIFICATION; AND GRANTING
MOTION TO AMEND COMPLAINT
Doc. nos. 3, 4, 7, 8

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United States District Court
Northern District of California

Case No. 14-0647-VC (PR)

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Ralph A. Taylor, an inmate at Pelican Bay State Prison (“Pelican Bay”) proceeding pro se,

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filed a civil rights complaint pursuant to 42 U.S.C. § 1983 alleging constitutional violations

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against thirteen defendants. Taylor has filed a motion to appoint counsel, two motions to certify a

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class and a motion to file an amended complaint. The Court grants the motion to file an amended

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complaint; the First Amended Complaint (“FAC”) will be the operative complaint in this case.

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Taylor’s motion for leave to proceed in forma pauperis is granted in a separate order. The Court

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now reviews the FAC.
DISCUSSION

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I.

Standard of Review
A federal court must screen any case in which a prisoner seeks redress from a

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governmental entity, or officer or employee of a governmental entity, to dismiss any claims that:

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(1) are frivolous or malicious; (2) fail to state a claim upon which relief may be granted; or (3)

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seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(a).

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

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699 (9th Cir. 1988).

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 (2) that

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the alleged violation was committed by a person acting under the color of state law. West v.

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Atkins, 487 U.S. 42, 48 (1988).
Liability may be imposed on an individual defendant under 42 U.S.C. § 1983 if the

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plaintiff can show that the defendant’s actions both actually and proximately caused the

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deprivation of a federally protected right. Lemire v. California Dep’t of Corrections &

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Rehabilitation, 726 F.3d 1062, 1074 (9th Cir. 2013); Leer v. Murphy, 844 F.2d 628, 634 (9th Cir.

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1988). A person deprives another of a constitutional right within the meaning of section 1983 if
he does an affirmative act, participates in another's affirmative act or fails to perform an act which

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United States District Court
Northern District of California

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he is legally required to do, that causes the deprivation of which the plaintiff complains. Leer, 844

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F.2d at 633.
But there is no respondeat superior liability under Section 1983. Lemire, 726 F.3d at 1074.

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That is, a supervisor is not liable merely because the supervisor is responsible, in general terms,

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for the actions of another. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); Ybarra v. Reno

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Thunderbird Mobile Home Village, 723 F.2d 675, 680-81 (9th Cir. 1984). A supervisor may be

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liable only on a showing of (1) personal involvement in the constitutional deprivation or (2) a

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sufficient causal connection between the supervisor's wrongful conduct and the constitutional

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violation. Henry A. v. Willden, 678 F.3d 991, 1003-04 (9th Cir. 2012). It is insufficient for a

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plaintiff to allege generally that supervisors knew about the constitutional violation or that they

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generally created policies and procedures that led to the violation, without alleging “a specific

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policy” or “a specific event” instigated by the supervisors that led to the constitutional violation.

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Hydrick v. Hunter, 669 F.3d 937, 942 (9th Cir. 2012).

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II.

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Taylor’s Allegations
Taylor brings this case on behalf of himself and a class of similarly situated New Afrikan

prisoners. Taylor’s FAC alleges the following:

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On June 27, 2013, Pelican Bay Security Housing Unit (“SHU”) Institutional Gang

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Investigators D. Milligan and G. Pimentel conducted a search of Taylor’s cell as part of a six year
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review of Taylor’s status as an active or inactive member of the prison gang known as the Black

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Guerilla Family. During the cell search, Milligan and Pimentel confiscated Taylor’s books,

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manuscripts, pamphlets, articles and essays on the false pretense that these items constituted gang-

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related material.

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Officials at the California Department of Corrections and Rehabilitation (“Department of

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Corrections”) and Pelican Bay Institutional Gang Unit maintain that New Afrikan Revolutionary

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Nationalism (“NARN”) is a product of the Black Guerilla Family, but it is not. NARN is an

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ideology, not a gang, social group or organization. This ideology evolved during the late 1960’s-

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70’s Black Liberation Movement. By 1968, NARN was the ideology of the New Afrikan
Independence Movement, which advocated the establishment of an independent New Afrikan

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United States District Court
Northern District of California

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Nation in the Southern part of the United States.

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Pelican Bay officials’ pattern and practice of confiscating NARN literature on the ground

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that it is gang material amounts to a violation of Taylor’s and similarly situated prisoners’ First

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Amendment rights to read literature expressing their ideological political views and beliefs.

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Prison officials also prohibit Taylor and other inmates from studying or speaking the New

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Afrikan Swahili language. This is part of a system-wide policy for imposing a ban upon specific

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words, names, phrases and concepts related to NARN and New Afrikan culture in violation of

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Taylor’s and other inmates’ First Amendment rights.

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Taylor filed a 602 appeal seeking the cessation of prison officials’ ban on all things
NARN-related and the return of his property. The appeal was denied at all levels of review.
Prison officials utilize Taylor’s and other new Afrikan prisoners’ validation as members of

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the Black Guerilla Family as a pretext for claiming New Afrikan prisoners promote prison gang

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activity, which cloaks the officials’ race-based discriminatory policies. This policy is sustained

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and sanctioned by the Secretary of the Department of Corrections and the Governor of California

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because they fail to stop the race-based discrimination and suppression of ideological and political

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expression.

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Based on these allegations, Taylor seeks declaratory and injunctive relief and damages.

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III.

Class Allegations
“[A] litigant appearing in propria persona has no authority to represent anyone other than

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himself.” Russell v. United States, 308 F.2d 78, 79 (9th Cir. 1962). The allegations pertaining to a

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class action are dismissed because pro se prisoner-plaintiffs are not adequate class representatives

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able to fairly represent and adequately protect the interests of a class. Oxendine v. Williams, 509

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F.2d 1405, 1407 (4th Cir. 1975). Accordingly, Taylor’s two motions for class certification are

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DENIED, and his class claims are dismissed without leave to amend.

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IV.

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Taylor’s Claims
The FAC asserts three claims: (1) a due process claim based on the failure of defendants to

grant Taylor’s 602 appeals; (2) a First Amendment claim for damages and for injunctive relief;

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United States District Court
Northern District of California

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and (3) an Equal Protection claim for damages and injunctive relief.

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A. Claim Regarding Denial of Appeals

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The failure to grant an inmate's appeal in the prison administrative appeal system does not

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amount to a due process violation. There is no federal constitutional right to a prison

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administrative appeal or grievance system for California inmates. Ramirez v. Galaza, 334 F.3d

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850, 860 (9th Cir. 2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); Antonelli v.

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Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996). The denial of an inmate appeal is not so severe a

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change in condition as to implicate the Due Process Clause itself and the State of California has

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not created a protected interest in an administrative appeal system in its prison. California's

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regulations grant prisoners a purely procedural right: the right to have a prison appeal. See CAL.

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CODE REGS. tit. 15, §§ 3084-3084.9 (2014). A provision that merely provides procedural

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requirements, even if mandatory, cannot form the basis of a constitutionally cognizable liberty

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interest. See Smith v. Noonan, 992 F.2d 987, 989 (9th Cir. 1993); see also Antonelli, 81 F.3d at

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1430 (prison grievance procedure is procedural right that does not give rise to protected liberty

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interest requiring procedural protections of Due Process Clause). Therefore, Taylor’s claim based

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on the denial of his administrative appeals is dismissed. Dismissal is without leave to amend as

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amendment of this claim would be futile.

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B. First Amendment Claim
1. Claim for Damages
Prisoners retain those First Amendment rights that do not conflict with their status as

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prison inmates or with legitimate penological objectives of the corrections system. Pell v.

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Procunier, 417 U.S. 817, 822 (1974). Regulations limiting prisoners' access to publications or

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other information are valid if they are reasonably related to legitimate penological interests.

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Thornburgh v. Abbott, 490 U.S. 401, 413 (1989) (citing Turner v. Safley, 482 U.S. 78, 89 (1987)).

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Liberally construed, the FAC appears to allege a First Amendment claim for damages
against Milligan and Pimentel for confiscating Taylor’s reading materials. It also appears to allege
a claim against Warden Lewis, in his individual capacity, for establishing a pattern or practice at

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United States District Court
Northern District of California

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Pelican Bay that violates Taylor's First Amendment right to read literature expressing his

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ideological political views and beliefs. However, the FAC fails to include factual allegations

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stating how any other defendant violated Taylor’s First Amendment rights. See Leer, 844 F.2d at

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633. Therefore, with the exception of the claim against Milligan, Pimentel and Lewis, this claim

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is dismissed as to all other defendants with leave to amend.

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2. Claim for Injunctive Relief
Taylor also seeks injunctive relief against prison officials in their official capacities for
failing to take action to curb the suppression of ideological and political expression.

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"The requirements for the issuance of a permanent injunction are the likelihood of

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substantial and immediate irreparable injury and the inadequacy of remedies at law." Easyriders

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Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1495 (9th Cir. 1996) (internal quotations

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omitted). Before issuing a permanent injunction against a state government agency, a district

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court must determine that the agency's conduct violates federal constitutional law. Id. at 1496.

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Further, there must be a showing of an intentional and pervasive pattern of misconduct in order to

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enjoin a state agency. Id. at 1500. The plaintiff may show, for example, that the misconduct

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flowed from an agency policy or plan. Id. at 1500-1501. "Specific findings of a persistent pattern

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of misconduct supported by a fully defined record can support broad injunctive relief." Thomas v.

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County of Los Angeles, 978 F.2d 504, 509 (9th Cir. 1993).
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Although the Eleventh Amendment bars from the federal courts suits against a state by its

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own citizens, see Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 237-38 (1985), a suit against a

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state official seeking prospective injunctive relief from unconstitutional state action is not a suit

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against the state, even if the state is the real party in interest. Kentucky v. Graham, 473 U.S. 159,

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167 n.14 (1985); Armstrong v. Wilson, 124 F.3d 1019, 1026 (9th Cir. 1997). "A state official in

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his or her official capacity, when sued for injunctive relief, [is] a person under § 1983 because

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'official-capacity actions for prospective relief are not treated as actions against the State.'" Will v.

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Michigan Dep't of State Police, 491 U.S. 58, 71 n.10 (1989).
Liberally construed, the FAC appears to state a claim against prison officials, acting in

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their official capacity, for establishing a policy or plan that violated Taylor's First Amendment

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United States District Court
Northern District of California

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rights. Taylor names several prison officials, the Secretary of the Department of Corrections and

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the Governor of California. To state a claim for injunctive relief, it is sufficient to name one

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official acting in his or her official capacity. In this instance, it is sufficient for Plaintiff to name

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Warden Lewis, acting in his official capacity. The First Amendment claim for injunctive relief

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against Governor Brown and Secretary Beard is dismissed, with prejudice.

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B. Equal Protection Claim

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A plaintiff alleging denial of equal protection under 42 U.S.C. § 1983 based on race or

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other suspect classification must plead intentional unlawful discrimination or allege facts that are

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at least susceptible of an inference of discriminatory intent by a state actor. Monteiro v. Tempe

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Union High School Dist., 158 F.3d 1022, 1026 (9th Cir. 1998). To state a claim for relief, the

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plaintiff must allege that the defendant acted at least in part because of the plaintiff's membership

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in a protected class. Serrano v. Francis, 345 F.3d 1071, 1081-82 (9th Cir. 2003); see also Byrd v.

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Maricopa Cnty. Sheriff's Dep't, 629 F.3d 1135, 1140 (9th Cir. 2011) (en banc) (claim that alleged

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harmful treatment but mentioned nothing about disparate treatment was properly dismissed).

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"Prisoners are protected under the Equal Protection Clause of the Fourteenth Amendment

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from invidious discrimination based on race." Wolff v. McDonnell, 418 U.S. 539, 556 (1974)

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(citation omitted). Invidious racial discrimination such as racial segregation, which is

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unconstitutional outside prisons, also is unconstitutional within prisons. Johnson v. California,
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543 U.S. 499, 505-06 (2005). A prison classification based on race is immediately suspect and is

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subject to the same strict scrutiny as a racial classification outside prison. Id. at 508-10. Prison

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officials must therefore demonstrate that the race-based policy or action is narrowly tailored to

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serve a compelling state interest. Id. at 510-11; Richardson v. Runnels, 594 F.3d 666, 671 (9th

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Cir. 2010) (applying Johnson to racial lockdowns in response to prison disturbances). Johnson

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did not rule out race-based classifications and did not eliminate prison security as a reason for such

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classifications, but instead determined that prison officials must demonstrate that race-based

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policies are narrowly tailored to address a compelling government interest such as prison security.

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See Johnson, 543 U.S. at 511-13, 515 (remanding case for determination of whether Department

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of Corrections' policy of temporarily segregating inmates by race when they arrive in the prison

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United States District Court
Northern District of California

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system initially or are transferred to a new prison is narrowly tailored to serve a compelling state

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interest).

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Although the FAC alleges that Taylor suffers from discrimination, it does not make clear

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whether this discrimination is based on his race or his membership in an ideological movement.

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Also, the FAC fails to allege that any specific defendant intentionally discriminated against Taylor

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on either basis. See Leer, 844 F.2d at 633. The Equal Protection claim for damages and

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injunctive relief is therefore dismissed as to all defendants with leave to amend.

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V. Motion to Appoint Counsel

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Taylor moves for the appointment of counsel because the legal issues are complex and he
is unable to adequately investigate or present the factual issues regarding his claims.
“[I]t is well-established that there is generally no constitutional right to counsel in civil

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cases.” United States v. Sardone, 94 F.3d 1233, 1236 (9th Cir. 1996). Nonetheless, under 28

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U.S.C. § 1915(e)(1), the Court has the discretion to appoint counsel to “any person unable to

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afford counsel.” The discretionary appointment of counsel typically is reserved for cases

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involving “exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).

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“A finding of exceptional circumstances requires an evaluation of both ‘the likelihood of success

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on the merits and the ability of the petitioner to articulate his claims pro se in light of the

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complexity of the legal issues involved.’ Neither of these factors is dispositive and both must be
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viewed together before reaching a decision.” Id. Here, exceptional circumstances requiring the

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appointment of counsel are not evident. The request for appointment of counsel is DENIED.

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If, in the future, the Court concludes it is necessary to appoint counsel to represent Taylor, it shall

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do so sua sponte.
CONCLUSION

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Based on the foregoing, the Court orders as follows:

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1. Taylor’s class claims are dismissed without leave to amend and the motions for class

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certification are DENIED. Doc. nos. 4 and 7.
2. Taylor's motion for appointment of counsel is DENIED. Doc. no. 3.

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3. Taylor's motion to amend his complaint is GRANTED. Doc. no. 8.

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United States District Court
Northern District of California

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4. Taylor’s claim based upon the denial of his administrative appeals is dismissed without

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leave to amend.
5. Taylor’s First Amendment claim for damages against Milligan, Pimentel and Lewis, in

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his individual capacity, is cognizable. Taylor's First Amendment claim for injunctive relief

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against Lewis, in his official capacity, is cognizable. However, the Court will not serve the First

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Amendment claims until it reviews Taylor’s Second Amended Complaint (“SAC”), if he files one,

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and will serve it with any cognizable claims alleged in the SAC.

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6. The First Amendment claim against all defendants other than Milligan, Pimentel and

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Lewis and the Equal Protection claim against all defendants are dismissed with leave to amend.

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7. Taylor may, but is not required to, file a SAC to remedy the deficiencies noted in this

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Order. In his SAC, he may not include any class allegations. He must include factual allegations

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indicating the specific conduct of each defendant that violated his First Amendment and Equal

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Protection rights. If Taylor cannot allege the conduct of an individual that violated these rights,

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that person should not be included in the SAC.

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8. If Taylor wishes to file an SAC, he must do so within twenty-one days from the date of

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this Order. The SAC must include the caption and civil case number used in this Order and the

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words SECOND AMENDED COMPLAINT on the first page. Because an amended complaint

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completely replaces the original complaint, Taylor must include in it all the allegations he wishes
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to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not incorporate

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material from the original complaint by reference. Failure to amend within the designated time

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will result in the dismissal with prejudice of the claims that are dismissed in this Order with leave

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to amend. Taylor’s cognizable First Amendment claims will be served at that time.

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9. It is Taylor’s responsibility to prosecute this case. Taylor must keep the Court informed

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of any change of address by filing a separate paper with the clerk headed “Notice of Change of

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Address,” and must comply with the Court's orders in a timely fashion. Failure to do so may

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result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil

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Procedure 41(b).
10. This Order terminates docket nos. 3, 4, 7 and 8.

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United States District Court
Northern District of California

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IT IS SO ORDERED.

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Dated: May 14, 2014
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VINCE CHHABRIA
United States District Judge

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