Barrett v. Dickerson et al

Filing 4

ORDER OF DISMISSAL WITH PARTIAL LEAVE TO AMEND. Signed by Judge Jon S. Tigar on July 23, 2014. (Attachments: # 1 Blank civil rights form, # 2 Certificate/Proof of Service)(wsn, COURT STAFF) (Filed on 7/24/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOHN THOMAS BARRETT,

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Case No. 14-cv-01923-JST (PR)

Plaintiff,
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v.

ORDER OF DISMISSAL WITH
PARTIAL LEAVE TO AMEND

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KATHLEEN DICKERSON, et al.,

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Defendants.
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INTRODUCTION

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United States District Court
Northern District of California

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On April 25, 2014, plaintiff, a California prisoner proceeding pro se, filed the above-titled

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civil rights action under 42 U.S.C. § 1983 alleging violations of his constitutional rights when he

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was incarcerated at Salinas Valley State Prison (SVSP).1 By separate order filed concurrently

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herewith, plaintiff has been granted leave to proceed in forma pauperis. His complaint is now

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before the court for review under 28 U.S.C. § 1915A.

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BACKGROUND

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Plaintiff claims that staff and officials at SVSP improperly delayed his classification

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hearing, thereby forcing him to remain at SVSP longer than he should have.2 His complaint

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alleges the following:
SVSP is a Level IV Facility. Level IV prisons are the highest-security prisons in

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California. Plaintiff had, on numerous occasions, sought to be transferred to a lower-security

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prison. On December 6, 2011, plaintiff had a classification committee hearing where he again

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requested a transfer. The classification committee denied the request on the ground that plaintiff's

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placement score of 55 points was consistent with Level IV housing pursuant to Cal. Code Regs,

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Plaintiff is currently incarcerated at the North Fork Correctional Facility in Sayre, Oklahoma.

A classification hearing is the process by which the California Department of Corrections and
Rehabilitation (CDCR) determines an inmate's placement within a facility as well as eligibility for
transfer between facilities. See 15 C.C.R. § 3375.

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tit. 15, § 3375.2.
Thereafter, plaintiff studied the classification regulations in effect at the time and learned

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that a deduction of four points from his placement score would qualify him for transfer to a Level

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III facility. Plaintiff also learned that, according to the regulations in effect at the time, if an

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inmate attained a re-calculated placement score inconsistent with the facility security level where

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he is housed, a classification committee hearing would have to be held within the six-month

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period when the new score is granted. See 15 C.C.R. 3375(k)(1)(B) (2011). Therefore, an inmate

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eligible for a facility transfer would not necessarily have to wait for his regular annual

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classification review.
Based on this information, plaintiff stayed out of trouble for the next five-and-a-half

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United States District Court
Northern District of California

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months and successfully reduced his placement score. On May 30, 2012, plaintiff informed

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defendant Correctional Counselor M. Noland that he would need to be reclassified six months

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prior to his scheduled annual classification review based on his new placement score. Defendant

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Noland denied the request and informed plaintiff that she only conducted annual classification

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reviews, not six-month reviews.

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On May 31, 2012, plaintiff filed a CDCR 22 inmate request for interview form, referring

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defendant Noland to Cal. Code Regs, tit. 15, § 3375(k)(1)(B) (2011). On June 1, 2012, defendant

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Noland responded stating that she would adjust plaintiff's points at his next annual classification

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review hearing, which was scheduled for December 2012. Plaintiff then forwarded the CDCR 22

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form to defendant Noland's supervisor, defendant Correctional Counselor E. Ramos. Defendant

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Ramos never responded.

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Thereafter, plaintiff filed a CDCR 602 inmate appeal form complaining of the actions of

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defendants Noland and Ramos. The Appeals Coordinator assigned to the appeal re-categorized it

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from a staff complaint to a custody/classification issue. Defendant Appeals Coordinator E.

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Medina and defendant Chief Deputy Warden R. Binkela denied plaintiff's request to process the

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appeal as an emergency staff complaint.

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On July 19, 2012, defendant Noland came to plaintiff's cell for an interview. Defendant

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Noland informed plaintiff that there had been a change in the regulations pertaining to

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classification, which changes became effective that month. On July 30, 2012, plaintiff received a

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first level response to his inmate appeal. Therein, defendant Ramos and defendant Facility

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Captain D. Asuncion denied his request for a six-month review and informed him that his case

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would be reviewed for Level III placement during his regular annual review. The denial was

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based on the new classification scoring regulations.

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On August 28, 2012, plaintiff received a second level response, signed by defendant Chief

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Deputy Warden J. Soto. The response again denied the request for a six-month review and found

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it appropriate for plaintiff to wait until his scheduled annual review in December 2012. The
response clarified the grounds for the decision by explaining that inmates were not entitled to a

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United States District Court
Northern District of California

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six-month or special review to implement the new classification scoring system that went into

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effect in July 2012.
On November 6, 2012, plaintiff received a third level response, signed by defendant

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Appeals Examiner K.J. Allen and defendant Chief of Appeals J.D. Lozano. The response denied

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plaintiff's appeal again on the ground that there was no requirement for a six-month review for

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transfer consideration regarding the new classification scoring system. The response exhausted

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plaintiff's administrative remedies.
Plaintiff asserts that it was improper to use the new classification scoring system as the

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basis for denying his request because it was not yet in effect on May 31, 2012 when plaintiff

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originally made his request. Although plaintiff was apparently granted a transfer at his December

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2012 hearing, he alleges that defendants' acts left him to suffer in a Level IV prison for an

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additional 8 months. Plaintiff alleges claims for due process and equal protection violations as

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well as for retaliation.
DISCUSSION

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A.

Standard of Review
A federal court must conduct a preliminary screening in any case in which a prisoner seeks

redress from a governmental entity or officer or employee of a governmental entity. See 28

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

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claims that 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. See 28 U.S.C. § 1915A(b)(1),

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(2). Pro se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police

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Dep't., 901 F.2d 696, 699 (9th Cir. 1988).
Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the

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

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statement need only "'give the defendant fair notice of what the . . . claim is and the grounds upon

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which it rests.'" Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted). Although in
order to state a claim a complaint "does not need detailed factual allegations, . . . a plaintiff's

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Northern District of California

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

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

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Factual allegations must be enough to raise a right to relief above the speculative level." Bell

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

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must proffer "enough facts to state a claim for relief that is plausible on its face." Id. at 1974.
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 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. See West v.

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Atkins, 487 U.S. 42, 48 (1988).

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B.

Legal Claims

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1.

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Plaintiff states a Due Process claim as follows:

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The refusal of defendants to abide by and enforce the rules and regulations of the
California Code of Regulations, Title 15, in a non-arbitrary manner, violated plaintiff's
state-created rights and constituted a due process violation under the Fourteenth
Amendment to the United States Constitution.

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Due Process

(Compl. at 14.)
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Interests that are procedurally protected by the Due Process Clause may arise from two
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sources – the Due Process Clause itself and laws of the states. Meachum v. Fano, 427 U.S. 215,

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223-27 (1976). In the prison context, these interests are generally ones pertaining to liberty.

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Changes in conditions so severe as to affect the sentence imposed in an unexpected manner

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implicate the Due Process Clause itself, whether or not they are authorized by state law. Sandin v.

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Conner, 515 U.S. 472, 484 (1995) (citing Vitek v. Jones, 445 U.S. 480, 493 (1980) (transfer to

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mental hospital), and Washington v. Harper, 494 U.S. 210, 221-22 (1990) (involuntary

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administration of psychotropic drugs). A state may not impose such changes without complying

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with minimum requirements of procedural due process. Id. at 484.

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Deprivations that are authorized by state law and are less severe or more closely related to
the expected terms of confinement may also amount to deprivations of a procedurally protected
liberty interest, provided that (1) state statutes or regulations narrowly restrict the power of prison

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Northern District of California

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officials to impose the deprivation, i.e., give the inmate a kind of right to avoid it, and (2) the

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liberty in question is one of "real substance." Id. at 477-87. Generally, "real substance" will be

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limited to freedom from (1) a restraint that imposes "atypical and significant hardship on the

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inmate in relation to the ordinary incidents of prison life," id. at 484, or (2) state action that "will

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inevitably affect the duration of [a] sentence," id. at 487.

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Because California has created regulations from which a protected interest in transfer

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within the state prison system could arise, in accord with Sandin the next question must be

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(1) whether the statutes narrowly restrict the power of prison officials to deny inmates a transfer,

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and (2) whether the deprivation suffered due to denial of a transfer request is one of "real

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substance."

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In California, there are no substantive limitations on prison officials' discretion to grant or

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refuse the transfer of prisoners. See Cal. Penal Code § 5080; Cal. Code Regs. tit. 15, § 3379;

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People v. Lara, 155 Cal. App. 3d 570, 575-76 (1984). Procedural requirements, even if

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mandatory, cannot provide the basis for a constitutionally protected liberty interest. See Smith v.

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Noonan, 992 F.2d 987, 989 (9th Cir. 1993). Because the statutory language does not meet the first

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prong of the Sandin test, no protected liberty interest requiring constitutional protection is created.

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Further, plaintiff does not allege that he was denied a liberty of "real substance." The only

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deprivation he alleges is a delay in the processing of his request for transfer to a lower-security

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prison. In other words, plaintiff remained at SVSP longer than he desired. Thus by definition,

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plaintiff did not suffer a restraint that imposes "atypical and significant hardship on the inmate in

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relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 484. The fact that he

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remained housed at a Level IV prison does not place him outside "the ordinary incidents of prison

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life." Id. See also, Myron v. Terhune, 476 F.3d 716, 718-19 (9th Cir. 2007) (classification for

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California Level IV prison rather than Level III prison not shown to be an atypical and significant

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hardship). Nor does the complaint allege a state action affecting the duration of plaintiff's

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sentence. Because the alleged deprivation does not meet the second prong of the Sandin test, no

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United States District Court
Northern District of California

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protected liberty interest requiring constitutional protection is created.
Accordingly, plaintiff has no viable due process claim with respect to the denial of his

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request for a transfer, and this claim is dismissed. Dismissal will be without leave to amend, as

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any amendment for the purpose of stating a constitutional claim under the circumstances alleged

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herein would be futile. See Janicki Logging Co. v. Mateer, 42 F.3d 561, 566 (9th Cir. 1994)

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(holding leave to amend need not be granted where amendment constitutes exercise in futility).

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2.

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Plaintiff states an Equal Protection claim as follows:

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The refusal of defendants to extend to plaintiff all the rights and privileges available to
other prisoners of the same class, violated his state-created rights and constituted a
violation under the Equal Protection Clause of the Fourteenth Amendment to the United
States Constitution.

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Equal Protection

(Compl. at 15.)
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"The Equal Protection Clause of the Fourteenth Amendment commands that no State shall
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'deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a
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direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne
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Living Center, 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982). A
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plaintiff alleging denial of equal protection under section 1983, therefore, must prove purposeful
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discrimination by demonstrating that he "receiv[ed] different treatment from that received by
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others similarly situated," and that the treatment complained of was under color of state law. Van
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Pool v. City and County of San Francisco, 752 F. Supp. 915, 927 (N.D. Cal. 1990) (citations

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omitted).
When challenging his treatment with regard to other prisoners, courts have held that in

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order to present an equal protection claim a prisoner must allege that his treatment is invidiously

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dissimilar to that received by other inmates. More v. Farrier, 984 F.2d 269, 271-72 (8th Cir. 1993)

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(absent evidence of invidious discrimination, federal courts should defer to judgment of prison

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officials); Timm v. Gunter, 917 F.2d 1093, 1099 (8th Cir. 1990) (same). The first step in

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determining whether the inmate's equal protection rights were violated is to identify the relevant

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class of prisoners to which he belongs. Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013).

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The class must be comprised of similarly situated persons so that the factor motivating the alleged

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United States District Court
Northern District of California

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discrimination can be identified. Id. at 1031 (affirming district court's grant of defendants' motion

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for summary judgment because inmate failed to raise triable issue of fact that he was treated

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differently than any other inmate whom the officers did not know was entitled to a vegetarian

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meal).

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Plaintiff's equal protection claim is deficient. The classification scoring system of section

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3375 of Title 15 of the California Code of Regulations is a departmental policy that applies to

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every California inmate. Other than plaintiff's conclusory references to other prisoners receiving

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different rights, there is no allegation or indication that plaintiff was treated differently from other

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similarly situated individuals, i.e., inmates who had a change in placement score in the six-month

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period prior to the July 2012 change in placement classification regulations. Further, according to

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the complaint, defendants denied plaintiff's requests for a six-month hearing on the ground that

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there was no requirement for a six-month review for transfer consideration to implement the new

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classification system. This is not enough to allege intentional invidious discrimination.

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Accordingly, plaintiff's equal protection claim is dismissed. Leave to amend is granted so
that plaintiff may attempt to allege a plausible equal protection claim, if he truthfully can do so.

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3.

Retaliation

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Plaintiff states a retaliation claim as follows:

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Defendants flagrantly retaliated against plaintiff in the form of threats, adverse
manipulation of the classification process and turn a blind eye approach by superiors,
causing him to feel fear and intimidation for exercising his right to file prison grievances
and thus constituting a violation under the First Amendment of the United States
Constitution.

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(Compl. at 16.) Plaintiff does not identify the alleged threats, and it is unclear what he means by

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"manipulation of the classification process." Plaintiff appears to base his retaliation claim on

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defendants' denial of his inmate appeals, which denial was based on the classification scoring

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system that went into effect in July 2012.

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"Within the prison context, a viable claim of First Amendment retaliation entails five basic
elements: (1) An assertion that a state actor took some adverse action against an inmate
(2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's

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Northern District of California

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exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate

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correctional goal." Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted).

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The plaintiff must show that the type of activity he was engaged in was protected by the First

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Amendment and that the protected conduct was a substantial or motivating factor for the alleged

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retaliatory acts. See Mt Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977).

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Retaliation is not established simply by showing adverse activity by a defendant after protected

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speech; rather, the plaintiff must show a nexus between the two. See Huskey v. City of San Jose,

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204 F.3d 893, 899 (9th Cir. 2000) (retaliation claim cannot rest on the logical fallacy of post hoc,

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ergo propter hoc, i.e., "after this, therefore because of this"). See generally Reichle, et al. v.

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Howards, 132 S.Ct. 2088, 2097-98 (2012) (Ginsburg, J. concurring) (finding no inference of

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retaliatory animus from Secret Service agents' assessment whether the safety of the person they

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are guarding is in danger); Dietrich v. John Ascuaga's Nugget, 548 F.3d 892, 901 (9th Cir. 2008)

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(finding no retaliation where plaintiff presented no evidence that defendants gave her a traffic

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citation after defendants read a newspaper article about her First Amendment activities, rather than

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because she drove past a police barricade with a "road closed" sign on it); Huskey, 204 F.3d at 899

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(summary judgment proper against plaintiff who could only speculate that adverse employment

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decision was due to his negative comments about his supervisor six or seven months earlier).

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Plaintiff claims that defendants retaliated against him for filing an inmate appeal, but fails

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to allege any facts that elevate his allegations to the level of a plausible retaliation claim. The

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denial of an inmate's appeal does not alone imply retaliation. Plaintiff alleges no facts suggesting

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that defendants denied his request for a six-month review because of plaintiff's protected conduct

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rather than for departmental reasons, or that the action chilled plaintiff's First Amendment rights,

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or that the action did not reasonably advance a legitimate correctional goal.

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Accordingly, plaintiff's retaliation claim is dismissed. Leave to amend is granted so that
plaintiff may attempt to allege a plausible retaliation claim, if he truthfully can do so.
4.

Defendant Dickerson

In addition to the above-mentioned defendants, plaintiff names as a defendant CDCR

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Northern District of California

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Director Kathleen L. Dickerson ("Dickerson"). None of the allegations in the complaint link

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Dickerson to any of plaintiff's claims. Plaintiff merely states that Dickerson "is legally responsible

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for the overall operation of the Department and each institution under its jurisdiction, including

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Salinas Valley State Prison." (Compl. at 2.)

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Under no circumstances is there vicarious liability under § 1983. Or, in layman's terms,

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under no circumstances is there liability under § 1983 solely because one is responsible for the

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

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

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may be liable under § 1983 upon a showing of (1) personal involvement in the constitutional

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deprivation or (2) a sufficient causal connection between the supervisor's wrongful conduct and

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the constitutional violation. Henry A. v. Willden, 678 F.3d 991, 1003-04 (9th Cir. 2012); Starr v.

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Baca, 652 F.3d 1202, 1207 (9th Cir. 2011).

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Because there is no vicarious liability under § 1983 and plaintiff does not include

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allegations showing that Dickerson was personally involved in the constitutional deprivations or

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that there is a causal connection between Dickerson's conduct and the constitutional violations, the

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claims against Dickerson are dismissed. Plaintiff is granted leave to amend to add allegations to

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remedy the noted deficiency, if he truthfully can do so.

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CONCLUSION

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For the foregoing reasons, the Court hereby orders as follows:

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1.

Plaintiff's due process claim is DISMISSED without leave to amend.

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2.

Plaintiff's equal protection and retaliation claims are DISMISSED with leave to

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amend. Plaintiff's claims against defendant Dickerson are also DISMISSED with leave to amend.
3.

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If plaintiff can cure the pleading deficiencies described above, he shall file a FIRST

AMENDED COMPLAINT within thirty (30) days from the date this order is filed. The amended

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complaint must include the caption and civil case number used in this order (C 14-1923 JST (PR))

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and the words FIRST AMENDED COMPLAINT on the first page. Failure to file an amended

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complaint within thirty days and in accordance with this order will result in a finding that

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United States District Court
Northern District of California

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further leave to amend would be futile, and this action will be dismissed.
4.

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Plaintiff is advised that the amended complaint will supersede the original

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complaint and all other pleadings. Claims and defendants not included in the amended complaint

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will not be considered by the Court. See Lacey v. Maricopa County, 693 F.3d 896 (9th Cir. 2012)

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(en banc) ("For claims dismissed with prejudice and without leave to amend, we will not require

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that they be repled in a subsequent amended complaint to preserve them for appeal. But for any

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claims voluntarily dismissed, we will consider those claims to be waived if not repled.").
5.

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It is plaintiff’s responsibility to prosecute this action. Plaintiff must keep the Court

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informed of any change of address by filing a separate paper with the Clerk headed "Notice of

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

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

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Procedure 41(b).

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6.

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The Clerk shall send plaintiff a blank civil rights form along with his copy of this

order.
IT IS SO ORDERED.
Dated: July 23, 2014
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JON S. TIGAR
United States District Judge

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United States District Court
Northern District of California

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