Hamiltonhausey v. Lewis

Filing 28

ORDER OF DISMISSAL WITH LEAVE TO AMEND by Judge William Alsup denying 11 Motion to Appoint Counsel ; granting 27 Motion screening of complaint. Amended Pleadings due by 6/8/2017. (Attachments: # 1 Certificate/Proof of Service)(dl, COURT STAFF) (Filed on 5/11/2017)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JERRY HAMILTONHAUSEY,
Plaintiff,

ORDER OF DISMISSAL WITH
LEAVE TO AMEND

v.

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For the Northern District of California

United States District Court

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No. C 17-1180 WHA (PR)

JILL R. LEWIS,

(Dkt. 11, 27)

Defendants.

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INTRODUCTION

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Plaintiff, an inmate at San Quentin State Prison (“SQSP”), filed this civil rights action in

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state court against Jill Lewis, a correctional officer at SQSP. Lewis removed the case to federal

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court because plaintiff claims that Lewis violated his federal constitutional rights. For the

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reasons discussed below, the complaint is dismissed with leave to amend.
ANALYSIS

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A.

STANDARD OF REVIEW

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

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

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

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

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

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

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(9th Cir. 1990).

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Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the

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

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

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

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

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

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

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

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

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For the Northern District of California

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

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United States District Court

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at 1974.

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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)

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that the alleged deprivation was committed by a person acting under the color of state law.

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

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B.

LEGAL CLAIMS

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Plaintiff alleges that Lewis publicly and falsely accused him of stealing tools from his

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prison employer. He alleges that Lewis did so on three occasions, and that she also fired him

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from his prison job. Plaintiff claims that Lewis is liable for slander and defamation of

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plaintiff’s character, and that she violated plaintiff’s First and Fourth Amendment rights. In a

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subsequent “amendment” to the complaint, plaintiff claims that Lewis’s conduct also violated

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his Eighth Amendment rights.

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Plaintiff’s allegations that Lewis defamed and slandered him does not state a

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constitutional claim because defamation, even when done under color of state law, does not

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violate the constitution. See Paul v. Davis, 424 U.S. 693, 701-710 (1976). To be actionable,

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there must be more than damage to reputation, there must be “stigma plus,” meaning an

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additional violation of a federal constitutional right or loss of “a right or status previously

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recognized by state law.” Id. at 701; Cooper v. Dupnik, 924 F.2d 1520, 1532 n.22 (9th Cir.

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1991). Where, as here, the alleged additional damage is the loss of employment, there is no

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stigma-plus and the defamation does not implicate plaintiff’s constitutional rights. Id. at 1534

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(stigma-plus test cannot be met by alleging collateral consequences of the defamation, such as

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loss of business or employment).

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Plaintiff’s allegation that Lewis caused him to lose his job also does not state a claim for

prison. Hoptowit v. Ray, 682 F.2d 1237, 1254-55 (9th Cir. 1982) (no right to job). Whatever

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liberty or property interests inhere in prison employment are the product of state law. Lyon v.

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Farrier, 727 F.2d 766, 769 (8th Cir.1984). There is no indication that the State of California

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For the Northern District of California

the violation of his constitutional rights because there is no constitutional right to a job in

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United States District Court

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has created a protected liberty or property interest in a prison job. The California Constitution

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states that its provisions on inmate labor shall not be interpreted as creating a right of inmates to

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work, Cal. Const. art. XIV Section 5, and the state statute which provides for work credits,

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Section 2933 of the California Penal Code 2933, has been found not to create a protected liberty

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interest, Toussaint v. McCarthy, 801 F.2d 1080, 1095 (9th Cir. 1986).

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There is one allegation in the complaint that could conceivably be the basis of a

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cognizable claim for relief under Section 1983. On one occasion, plaintiff alleges that Lewis’s

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actions “were unreasonable/contained the elements of racial bias” (ECF No. 1-1 at 6).

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Although there is no liberty or property interest in a prison job, racial discrimination in the

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assignment of jobs violates equal protection. Walker v. Gomez, 370 F.3d 969, 973 (9th Cir.

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2004). Plaintiff will be given leave to amend his complaint to allege — if he can do so in good

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faith — that Lewis falsely accused plaintiff of stealing and terminated him from his job based

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upon plaintiff’s race.

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CONCLUSION

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For the reasons set out above, it is hereby ordered as follows:

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1. The complaint is DISMISSED with leave to amend, as described above, within 28

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days of the date this order is filed. The amended complaint must include the caption used in

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this order and the civil case number C 16-2520 WHA (PR) and the words FIRST AMENDED

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COMPLAINT on the first page. Because an amended complaint completely replaces the

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original complaint, plaintiff must include in it all the claims he wishes to present. See Ferdik v.

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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not incorporate material from the

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original complaint by reference. Failure to amend within the designated time and in accordance

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with this order will result in the dismissal of this case.

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2. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the court

Change of Address.” Papers intended to be filed in this case should be addressed to the clerk

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and not to the undersigned. Plaintiff must comply with the Court's orders in a timely fashion.

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For the Northern District of California

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

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United States District Court

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Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to

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Federal Rule of Civil Procedure 41(b).

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3. Plaintiff’s request for assistance of counsel is DENIED because there is no right to

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counsel in a civil case and this case presents no extraordinary circumstances at this stage that

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warrant such an appointment. Defendant’s motion for screening of his complaint is GRANTED,

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above.

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IT IS SO ORDERED.

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Dated: May 10
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, 2017.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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