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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1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 JOHN THOMAS BARRETT, 4 Case No. 14-cv-01923-JST (PR) Plaintiff, 5 v. ORDER OF DISMISSAL WITH PARTIAL LEAVE TO AMEND 6 KATHLEEN DICKERSON, et al., 7 Defendants. 8 9 INTRODUCTION 10 United States District Court Northern District of California 11 On April 25, 2014, plaintiff, a California prisoner proceeding pro se, filed the above-titled 12 civil rights action under 42 U.S.C. § 1983 alleging violations of his constitutional rights when he 13 was incarcerated at Salinas Valley State Prison (SVSP).1 By separate order filed concurrently 14 herewith, plaintiff has been granted leave to proceed in forma pauperis. His complaint is now 15 before the court for review under 28 U.S.C. § 1915A. 16 BACKGROUND 17 Plaintiff claims that staff and officials at SVSP improperly delayed his classification 18 hearing, thereby forcing him to remain at SVSP longer than he should have.2 His complaint 19 alleges the following: SVSP is a Level IV Facility. Level IV prisons are the highest-security prisons in 20 21 California. Plaintiff had, on numerous occasions, sought to be transferred to a lower-security 22 prison. On December 6, 2011, plaintiff had a classification committee hearing where he again 23 requested a transfer. The classification committee denied the request on the ground that plaintiff's 24 placement score of 55 points was consistent with Level IV housing pursuant to Cal. Code Regs, 25 26 1 27 2 28 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. 1 2 tit. 15, § 3375.2. Thereafter, plaintiff studied the classification regulations in effect at the time and learned 3 that a deduction of four points from his placement score would qualify him for transfer to a Level 4 III facility. Plaintiff also learned that, according to the regulations in effect at the time, if an 5 inmate attained a re-calculated placement score inconsistent with the facility security level where 6 he is housed, a classification committee hearing would have to be held within the six-month 7 period when the new score is granted. See 15 C.C.R. 3375(k)(1)(B) (2011). Therefore, an inmate 8 eligible for a facility transfer would not necessarily have to wait for his regular annual 9 classification review. Based on this information, plaintiff stayed out of trouble for the next five-and-a-half 11 United States District Court Northern District of California 10 months and successfully reduced his placement score. On May 30, 2012, plaintiff informed 12 defendant Correctional Counselor M. Noland that he would need to be reclassified six months 13 prior to his scheduled annual classification review based on his new placement score. Defendant 14 Noland denied the request and informed plaintiff that she only conducted annual classification 15 reviews, not six-month reviews. 16 On May 31, 2012, plaintiff filed a CDCR 22 inmate request for interview form, referring 17 defendant Noland to Cal. Code Regs, tit. 15, § 3375(k)(1)(B) (2011). On June 1, 2012, defendant 18 Noland responded stating that she would adjust plaintiff's points at his next annual classification 19 review hearing, which was scheduled for December 2012. Plaintiff then forwarded the CDCR 22 20 form to defendant Noland's supervisor, defendant Correctional Counselor E. Ramos. Defendant 21 Ramos never responded. 22 Thereafter, plaintiff filed a CDCR 602 inmate appeal form complaining of the actions of 23 defendants Noland and Ramos. The Appeals Coordinator assigned to the appeal re-categorized it 24 from a staff complaint to a custody/classification issue. Defendant Appeals Coordinator E. 25 Medina and defendant Chief Deputy Warden R. Binkela denied plaintiff's request to process the 26 appeal as an emergency staff complaint. 27 On July 19, 2012, defendant Noland came to plaintiff's cell for an interview. Defendant 28 2 1 Noland informed plaintiff that there had been a change in the regulations pertaining to 2 classification, which changes became effective that month. On July 30, 2012, plaintiff received a 3 first level response to his inmate appeal. Therein, defendant Ramos and defendant Facility 4 Captain D. Asuncion denied his request for a six-month review and informed him that his case 5 would be reviewed for Level III placement during his regular annual review. The denial was 6 based on the new classification scoring regulations. 7 On August 28, 2012, plaintiff received a second level response, signed by defendant Chief 8 Deputy Warden J. Soto. The response again denied the request for a six-month review and found 9 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 11 United States District Court Northern District of California 10 six-month or special review to implement the new classification scoring system that went into 12 effect in July 2012. On November 6, 2012, plaintiff received a third level response, signed by defendant 13 14 Appeals Examiner K.J. Allen and defendant Chief of Appeals J.D. Lozano. The response denied 15 plaintiff's appeal again on the ground that there was no requirement for a six-month review for 16 transfer consideration regarding the new classification scoring system. The response exhausted 17 plaintiff's administrative remedies. Plaintiff asserts that it was improper to use the new classification scoring system as the 18 19 basis for denying his request because it was not yet in effect on May 31, 2012 when plaintiff 20 originally made his request. Although plaintiff was apparently granted a transfer at his December 21 2012 hearing, he alleges that defendants' acts left him to suffer in a Level IV prison for an 22 additional 8 months. Plaintiff alleges claims for due process and equal protection violations as 23 well as for retaliation. DISCUSSION 24 25 26 27 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 28 3 1 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any 2 claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 3 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 4 (2). Pro se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police 5 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 6 7 claim showing that the pleader is entitled to relief." "Specific facts are not necessary; the 8 statement need only "'give the defendant fair notice of what the . . . claim is and the grounds upon 9 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 11 United States District Court Northern District of California 10 obligation to provide the grounds of his 'entitle[ment] to relief' requires more than labels and 12 conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . 13 Factual allegations must be enough to raise a right to relief above the speculative level." Bell 14 Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint 15 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: 16 17 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that 18 the alleged violation was committed by a person acting under the color of state law. See West v. 19 Atkins, 487 U.S. 42, 48 (1988). 20 B. Legal Claims 21 1. 22 Plaintiff states a Due Process claim as follows: 23 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. 24 25 Due Process (Compl. at 14.) 26 Interests that are procedurally protected by the Due Process Clause may arise from two 27 sources – the Due Process Clause itself and laws of the states. Meachum v. Fano, 427 U.S. 215, 28 4 1 223-27 (1976). In the prison context, these interests are generally ones pertaining to liberty. 2 Changes in conditions so severe as to affect the sentence imposed in an unexpected manner 3 implicate the Due Process Clause itself, whether or not they are authorized by state law. Sandin v. 4 Conner, 515 U.S. 472, 484 (1995) (citing Vitek v. Jones, 445 U.S. 480, 493 (1980) (transfer to 5 mental hospital), and Washington v. Harper, 494 U.S. 210, 221-22 (1990) (involuntary 6 administration of psychotropic drugs). A state may not impose such changes without complying 7 with minimum requirements of procedural due process. Id. at 484. 8 9 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 11 United States District Court Northern District of California 10 officials to impose the deprivation, i.e., give the inmate a kind of right to avoid it, and (2) the 12 liberty in question is one of "real substance." Id. at 477-87. Generally, "real substance" will be 13 limited to freedom from (1) a restraint that imposes "atypical and significant hardship on the 14 inmate in relation to the ordinary incidents of prison life," id. at 484, or (2) state action that "will 15 inevitably affect the duration of [a] sentence," id. at 487. 16 Because California has created regulations from which a protected interest in transfer 17 within the state prison system could arise, in accord with Sandin the next question must be 18 (1) whether the statutes narrowly restrict the power of prison officials to deny inmates a transfer, 19 and (2) whether the deprivation suffered due to denial of a transfer request is one of "real 20 substance." 21 In California, there are no substantive limitations on prison officials' discretion to grant or 22 refuse the transfer of prisoners. See Cal. Penal Code § 5080; Cal. Code Regs. tit. 15, § 3379; 23 People v. Lara, 155 Cal. App. 3d 570, 575-76 (1984). Procedural requirements, even if 24 mandatory, cannot provide the basis for a constitutionally protected liberty interest. See Smith v. 25 Noonan, 992 F.2d 987, 989 (9th Cir. 1993). Because the statutory language does not meet the first 26 prong of the Sandin test, no protected liberty interest requiring constitutional protection is created. 27 Further, plaintiff does not allege that he was denied a liberty of "real substance." The only 28 5 1 deprivation he alleges is a delay in the processing of his request for transfer to a lower-security 2 prison. In other words, plaintiff remained at SVSP longer than he desired. Thus by definition, 3 plaintiff did not suffer a restraint that imposes "atypical and significant hardship on the inmate in 4 relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 484. The fact that he 5 remained housed at a Level IV prison does not place him outside "the ordinary incidents of prison 6 life." Id. See also, Myron v. Terhune, 476 F.3d 716, 718-19 (9th Cir. 2007) (classification for 7 California Level IV prison rather than Level III prison not shown to be an atypical and significant 8 hardship). Nor does the complaint allege a state action affecting the duration of plaintiff's 9 sentence. Because the alleged deprivation does not meet the second prong of the Sandin test, no 10 United States District Court Northern District of California 11 protected liberty interest requiring constitutional protection is created. Accordingly, plaintiff has no viable due process claim with respect to the denial of his 12 request for a transfer, and this claim is dismissed. Dismissal will be without leave to amend, as 13 any amendment for the purpose of stating a constitutional claim under the circumstances alleged 14 herein would be futile. See Janicki Logging Co. v. Mateer, 42 F.3d 561, 566 (9th Cir. 1994) 15 (holding leave to amend need not be granted where amendment constitutes exercise in futility). 16 2. 17 Plaintiff states an Equal Protection claim as follows: 18 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. 19 20 Equal Protection (Compl. at 15.) 21 "The Equal Protection Clause of the Fourteenth Amendment commands that no State shall 22 'deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a 23 direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne 24 Living Center, 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982). A 25 plaintiff alleging denial of equal protection under section 1983, therefore, must prove purposeful 26 discrimination by demonstrating that he "receiv[ed] different treatment from that received by 27 others similarly situated," and that the treatment complained of was under color of state law. Van 28 6 1 Pool v. City and County of San Francisco, 752 F. Supp. 915, 927 (N.D. Cal. 1990) (citations 2 omitted). When challenging his treatment with regard to other prisoners, courts have held that in 4 order to present an equal protection claim a prisoner must allege that his treatment is invidiously 5 dissimilar to that received by other inmates. More v. Farrier, 984 F.2d 269, 271-72 (8th Cir. 1993) 6 (absent evidence of invidious discrimination, federal courts should defer to judgment of prison 7 officials); Timm v. Gunter, 917 F.2d 1093, 1099 (8th Cir. 1990) (same). The first step in 8 determining whether the inmate's equal protection rights were violated is to identify the relevant 9 class of prisoners to which he belongs. Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013). 10 The class must be comprised of similarly situated persons so that the factor motivating the alleged 11 United States District Court Northern District of California 3 discrimination can be identified. Id. at 1031 (affirming district court's grant of defendants' motion 12 for summary judgment because inmate failed to raise triable issue of fact that he was treated 13 differently than any other inmate whom the officers did not know was entitled to a vegetarian 14 meal). 15 Plaintiff's equal protection claim is deficient. The classification scoring system of section 16 3375 of Title 15 of the California Code of Regulations is a departmental policy that applies to 17 every California inmate. Other than plaintiff's conclusory references to other prisoners receiving 18 different rights, there is no allegation or indication that plaintiff was treated differently from other 19 similarly situated individuals, i.e., inmates who had a change in placement score in the six-month 20 period prior to the July 2012 change in placement classification regulations. Further, according to 21 the complaint, defendants denied plaintiff's requests for a six-month hearing on the ground that 22 there was no requirement for a six-month review for transfer consideration to implement the new 23 classification system. This is not enough to allege intentional invidious discrimination. 24 25 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. 26 3. Retaliation 27 Plaintiff states a retaliation claim as follows: 28 7 3 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. 4 (Compl. at 16.) Plaintiff does not identify the alleged threats, and it is unclear what he means by 5 "manipulation of the classification process." Plaintiff appears to base his retaliation claim on 6 defendants' denial of his inmate appeals, which denial was based on the classification scoring 7 system that went into effect in July 2012. 1 2 8 9 "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 11 United States District Court Northern District of California 10 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 12 correctional goal." Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted). 13 The plaintiff must show that the type of activity he was engaged in was protected by the First 14 Amendment and that the protected conduct was a substantial or motivating factor for the alleged 15 retaliatory acts. See Mt Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). 16 Retaliation is not established simply by showing adverse activity by a defendant after protected 17 speech; rather, the plaintiff must show a nexus between the two. See Huskey v. City of San Jose, 18 204 F.3d 893, 899 (9th Cir. 2000) (retaliation claim cannot rest on the logical fallacy of post hoc, 19 ergo propter hoc, i.e., "after this, therefore because of this"). See generally Reichle, et al. v. 20 Howards, 132 S.Ct. 2088, 2097-98 (2012) (Ginsburg, J. concurring) (finding no inference of 21 retaliatory animus from Secret Service agents' assessment whether the safety of the person they 22 are guarding is in danger); Dietrich v. John Ascuaga's Nugget, 548 F.3d 892, 901 (9th Cir. 2008) 23 (finding no retaliation where plaintiff presented no evidence that defendants gave her a traffic 24 citation after defendants read a newspaper article about her First Amendment activities, rather than 25 because she drove past a police barricade with a "road closed" sign on it); Huskey, 204 F.3d at 899 26 (summary judgment proper against plaintiff who could only speculate that adverse employment 27 decision was due to his negative comments about his supervisor six or seven months earlier). 28 8 1 Plaintiff claims that defendants retaliated against him for filing an inmate appeal, but fails 2 to allege any facts that elevate his allegations to the level of a plausible retaliation claim. The 3 denial of an inmate's appeal does not alone imply retaliation. Plaintiff alleges no facts suggesting 4 that defendants denied his request for a six-month review because of plaintiff's protected conduct 5 rather than for departmental reasons, or that the action chilled plaintiff's First Amendment rights, 6 or that the action did not reasonably advance a legitimate correctional goal. 7 8 9 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 11 United States District Court Northern District of California 10 Director Kathleen L. Dickerson ("Dickerson"). None of the allegations in the complaint link 12 Dickerson to any of plaintiff's claims. Plaintiff merely states that Dickerson "is legally responsible 13 for the overall operation of the Department and each institution under its jurisdiction, including 14 Salinas Valley State Prison." (Compl. at 2.) 15 Under no circumstances is there vicarious liability under § 1983. Or, in layman's terms, 16 under no circumstances is there liability under § 1983 solely because one is responsible for the 17 actions or omissions of another. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); Ybarra v. 18 Reno Thunderbird Mobile Home Village, 723 F.2d 675, 680-81 (9th Cir. 1984). A supervisor 19 may be liable under § 1983 upon a showing of (1) personal involvement in the constitutional 20 deprivation or (2) a sufficient causal connection between the supervisor's wrongful conduct and 21 the constitutional violation. Henry A. v. Willden, 678 F.3d 991, 1003-04 (9th Cir. 2012); Starr v. 22 Baca, 652 F.3d 1202, 1207 (9th Cir. 2011). 23 Because there is no vicarious liability under § 1983 and plaintiff does not include 24 allegations showing that Dickerson was personally involved in the constitutional deprivations or 25 that there is a causal connection between Dickerson's conduct and the constitutional violations, the 26 claims against Dickerson are dismissed. Plaintiff is granted leave to amend to add allegations to 27 remedy the noted deficiency, if he truthfully can do so. 28 9 CONCLUSION 1 2 For the foregoing reasons, the Court hereby orders as follows: 3 1. Plaintiff's due process claim is DISMISSED without leave to amend. 4 2. Plaintiff's equal protection and retaliation claims are DISMISSED with leave to 5 amend. Plaintiff's claims against defendant Dickerson are also DISMISSED with leave to amend. 3. 6 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 8 complaint must include the caption and civil case number used in this order (C 14-1923 JST (PR)) 9 and the words FIRST AMENDED COMPLAINT on the first page. Failure to file an amended 10 complaint within thirty days and in accordance with this order will result in a finding that 11 United States District Court Northern District of California 7 further leave to amend would be futile, and this action will be dismissed. 4. 12 Plaintiff is advised that the amended complaint will supersede the original 13 complaint and all other pleadings. Claims and defendants not included in the amended complaint 14 will not be considered by the Court. See Lacey v. Maricopa County, 693 F.3d 896 (9th Cir. 2012) 15 (en banc) ("For claims dismissed with prejudice and without leave to amend, we will not require 16 that they be repled in a subsequent amended complaint to preserve them for appeal. But for any 17 claims voluntarily dismissed, we will consider those claims to be waived if not repled."). 5. 18 It is plaintiff’s responsibility to prosecute this action. Plaintiff must keep the Court 19 informed of any change of address by filing a separate paper with the Clerk headed "Notice of 20 Change of Address," and must comply with the Court's orders in a timely fashion. Failure to do so 21 may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil 22 Procedure 41(b). 23 /// 24 /// 25 /// 26 /// 27 /// 28 10 6. 1 2 3 4 5 6 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 ______________________________________ JON S. TIGAR United States District Judge 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11

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