Badwi v. Evans et al

Filing 29

ORDER by Judge ARMSTRONG terminating 22 Motion ; denying 25 Motion for Settlement; granting in part and denying in part 28 Motion (lrc, COURT STAFF) (Filed on 4/13/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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RAMZI AHMED BADWI,

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Plaintiff,

United States District Court
For the Northern District of California

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ORDER REVIEWING PLAINTIFF'S
AMENDMENT TO COMPLAINT;
DENYING DEFENDANTS' MOTION TO
CHANGE TIME FOR SETTLEMENT
PROCEEDINGS; AND ADDRESSING
OTHER PENDING MOTIONS

v.
WARDEN ANTHONY HEDGPETH, et al.,
Defendants.

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No. C 08-02221 SBA (PR)

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(Docket nos. 22, 25, 28)

Plaintiff, a state prisoner currently incarcerated at the Substance Abuse Treatment Facility in
Corcoran, has filed a pro se civil rights action pursuant to 42 U.S.C. § 1983, stemming from
incidents, including a rape by another prisoner, which occurred while he was incarcerated at Salinas
Valley State Prison (SVSP) in 2007.
The Court conducted an initial screening of the complaint pursuant to 28 U.S.C. § 1915A(a).
The Court initially determined that the only remaining request for relief was Plaintiff's request for
injunctive relief compelling prison officials to place him in a single cell. The Court found that
Plaintiff had stated a cognizable Eighth Amendment and conspiracy claims against Defendants
SVSP Warden Anthony Hedgpeth and SVSP Sergeant Oyarzabal. The Court dismissed Plaintiff's
due process claim for failure to state a claim. The Court also found that Plaintiff failed to allege
specifically how the remaining Defendants actually and proximately caused the deprivation of a
federally protected right. (Jan. 10, 2011 Order at 7-8 (citing Leer v. Murphy, 844 F.2d 628, 634 (9th
Cir. 1988).) Plaintiff named Defendants Evans, Moore, Lews, Lee, Kates, Jones, Hjeiden, Medina,
Mantel, Kessler, Mojica, Galloway, Hogan, Hubbard, Gonsan, Hatton, Bowman and Kumar;
however, these Defendants were not linked specifically to the allegations in the body of the
complaint. Plaintiff was warned that a supervisor generally "is only liable for constitutional
violations of his subordinates if the supervisor participated in or directed the violations, or knew of
the violations and failed to act to prevent them." (Jan. 10, 2011 Order at 7 (quoting Taylor v. List,
880 F.2d 1040, 1045 (9th Cir. 1989).) Plaintiff also named "John Doe 1 to 60" as Doe Defendants,
but the Court dismissed Plaintiff's claims against the Doe Defendants without prejudice to moving to

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file an amended complaint should he learn their identities. The Court stated:
Within thirty (30) days of the date of this Order Plaintiff may file amended claims
against these aforementioned Defendants as set forth above in Section III(B) of this
Order. (Plaintiff shall resubmit only those claims and not the entire complaint.)
The amended claims must be submitted on an amendment to the complaint. It must
include the caption as well as the civil case number of this action (C 08-02221 SBA
(PR)) and the words AMENDMENT TO THE COMPLAINT on the first page.
Failure to do so will result in the dismissal without prejudice of any claim against
Defendants Evans, Moore, Lews, Lee, Kates, Jones, Hjeiden, Medina, Mantel,
Kessler, Mojica, Galloway, Hogan, Hubbard, Gonsan, Hatton, Bowman and
Kumarare.

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(Jan. 10, 2011 Order at 9.) In amending, Plaintiff was directed to allege specifically how each
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named defendant actually and proximately caused the deprivation of a federally protected right.
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Finally, the Court referred this action to Magistrate Judge Nandor Vadas for settlement proceedings
United States District Court
For the Northern District of California

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pursuant to the Pro Se Prisoner Settlement Program.
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On February 11, 2011, Magistrate Judge Vadas scheduled a settlement conference for this
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matter on April 21, 2011 at 1:00 PM at Solano State Prison (Solano). On March 18, 2011, the
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settlement conference was rescheduled for April 20, 2011 1:00 PM at Solano.
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Plaintiff subsequently filed a document entitled, "First Amended Complaint For Damages,"
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which the Court will construe as his Amendment to the Complaint. In this document, Plaintiff
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includes portions of the Court's January 11, 2011 Order that are copied verbatim, including the
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introduction on pages 1 and 2 as well as the factual background and exhaustion information taken
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from the section relating to his Eighth Amendment and conspiracy claims on pages 3 through 5.
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Plaintiff also moves for the Court to reconsider the dismissal of his due process claim arguing "that
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the failure of prison officials at SVSP to place him in a single cell -- clearly state[s] a cognizable
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claim for relief, and his due process claim should not be dismissed." (Am. to Compl. at 10.)
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Finally, Plaintiff states that the aforementioned Defendants who were not linked to his claims "can
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only be referred to as persons who attempted to cover up the crimes against plaintiff, including
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covering up the wrongs that they themselves committed against plaintiff, then hid-behind what is
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known as "GREEN-WALL." (Id. at 13.)
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The parties are presently before the Court on Defendants' motion to screen the amendment to
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the complaint and their "Administrative Motion to Change Time for Settlement Proceedings Under
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the Pro Se Prisoner Settlement Program" (docket nos. 22, 25). Plaintiff has also filed a motion for a

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copy of his amendment to the complaint (docket no. 28).

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For the reasons discussed below, the Court GRANTS Defendants' motion to screen the

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amendment to the complaint (docket no. 22); DENIES their "Administrative Motion to Change

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Time for Settlement Proceedings Under the Pro Se Prisoner Settlement Program" (docket no. 25);

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and GRANTS in part Plaintiff's motion for a copy (of only pages 1 through 15) of his amendment to

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the complaint.

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United States District Court
For the Northern District of California

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DISCUSSION
I.

Defendants Not Linked to Claims
Defendants' motion to screen the amendment to the complaint (docket no. 22) is GRANTED.

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The Court now reviews Plaintiff's amendment to the complaint to determine whether Plaintiff has

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cured the pleading deficiencies identified in the Court's January 11, 2011 Order. While Plaintiff

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includes references to some of the Defendants not linked to the claims in the original complaint,

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including that Plaintiff told Defendant Galloway about the rape the day after it happened, (am. to

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compl. at 3), and that Defendant Medina contacted Defendant Kessler relating to Plaintiff's housing

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and Defendant Kessler "had "Correctional Sergeant (Sgt.) A. Oyarzabal interview the Plaintiff on

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April 16, 2007, at 1630 hours," (id. at 7). The Court finds that Plaintiff has failed to cure the

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pleading deficiencies as to Defendants Galloway, Medina and Kessler because he fails to link them

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specifically to his Eighth Amendment and conspiracy claims. For example, Defendants Galloway

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was allegedly only informed of the rape after it had already taken place. Meanwhile, Defendants

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Medina and Kessler may have been contacted about Plaintiff's housing, but the only allegation is

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that Defendants Kessler directed Defendant Oyarzabal to conduct an interview of Plaintiff prior to

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the rape. These allegations fail to show that Defendants Galloway, Medina and Kessler actually and

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proximately caused the deprivation of a federally protected right. Accordingly, all claims against

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Defendants Galloway, Medina and Kessler are DISMISSED for failure to state a claim and without

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further leave to amend. Plaintiff does not link any of the other remaining Defendants to his claims.

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As mentioned above, he merely states, that the Defendants who were not linked to his claims "can

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only be referred to as persons who attempted to cover up the crimes against plaintiff, including
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covering up the wrongs that they themselves committed against plaintiff, then hid-behind what is

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known as "GREEN-WALL." (Am. to Compl. at 13.) This allegation is insufficient to correct the

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deficiencies in the original complaint as to the other Defendants who were not linked. Therefore,

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Plaintiff's claims against Defendants Evans, Moore, Lews, Lee, Kates, Jones, Hjeiden, Mantel,

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Kessler, Mojica, Hogan, Hubbard, Gonsan, Hatton, Bowman and Kumarare are also DISMISSED

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for failure to state a claim and without further leave to amend.

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II.

Plaintiff's Due Process Claim

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In its January 11, 2011 Order, the Court analyzed Plaintiff's due process claim as follows:

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Plaintiff claims his due process rights were violated because of the failure of
prison officials at SVSP to place him in a single cell.

United States District Court
For the Northern District of California

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Interests protected by the Due Process Clause may arise from two sources -the Due Process Clause itself and laws of the states. See Meachum v. Fano, 427
U.S. 215, 223-27 (1976). Changes in conditions so severe as to affect the sentence
imposed in an unexpected manner implicate the Due Process Clause itself, whether
or not they are authorized by state law. See Sandin v. Conner, 515 U.S. 472, 484
(1995). Deprivations authorized by state law that 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 officials to impose the deprivation, i.e. give
the inmate a kind of right to avoid it, and (2) the liberty in question is one of "real
substance." See id. at 477-87.

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California Code of Regulations title 15, section 3377.1 provides that
inmates are classified into nine custody designations to alert staff as to where an
inmate may be housed and assigned, and the level of supervision required of the
inmate. An inmate may also be affixed an "R" or "S" suffix to indicate a history of
sex offenses or need for single cell housing, respectively. Generally, these
regulations do not contain substantive predicates or mandatory language requiring
any specific outcome when a custody classification or reclassification is conducted.
See Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 461-62 (1989)
(finding no protected liberty interest in Kentucky regulations). The regulations
state no set of circumstances or behavior, for example, which must be found before
an inmate is eligible for maximum custody. Cf. Neal v. Shimoda, 131 F.3d 818,
830 (9th Cir. 1997) (finding a protected liberty interest under Thompson when
regulation provides that once an inmate is labeled as a sex offender (the substantive
predicate) it is statutorily mandated that the inmate successfully complete a
specified treatment program in order to become eligible for parole and there is no
room for prison officials' discretion)). Because the statutory language does not
meet the first prong of the Sandin test, no protected liberty interest requiring
constitutional protection is created. Accordingly, Plaintiff's allegations -- relating
to the failure of prison officials at SVSP to place him in a single cell -- fail to state a
cognizable claim for relief, and his due process claim is DISMISSED.
(Jan. 11, 2011 Order at 5-6.)
In his amendment to the complaint, Plaintiff argues that the Court should reconsider its
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dismissal of his due process claim.

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Where, as here, a court's ruling has not resulted in a final judgment or order, reconsideration

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of the ruling may be sought under Rule 54(b) of the Federal Rules of Civil Procedure, which

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provides that any order that does not terminate the action is subject to revision at any time before the

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entry of judgment. See Fed. R. Civ. P. 54(b). "Reconsideration is appropriate if the district court

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(1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was

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manifestly unjust, or (3) if there is an intervening change in controlling law." School Dist. No. 11 v.

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ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

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Plaintiff's due process claim was denied on the grounds that although Plaintiff alleged he had

United States District Court
For the Northern District of California

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been wrongfully denied placement in a single cell, as explained above, he alleged no protected

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liberty interest requiring constitutional protection. As explained in the Court's January 11, 2011

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Order, inmates, such as Plaintiff, are classified according to California Code of Regulations title 15,

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section 3377.1. The Court determined that generally, these regulations do not contain substantive

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predicates or mandatory language requiring any specific outcome when a custody classification or

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reclassification is conducted. Because the statutory language did not meet the first prong of the

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Sandin test, the Court determined that no protected liberty interest requiring constitutional protection

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was created. In his motion for reconsideration, Plaintiff has not shown that the Court committed

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clear error, that the prior decision was manifestly unjust, or that there has been an intervening

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change in the law. Rather, Plaintiff claims that he is "informed and believes, and thereon alleges,

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that the failure of prison officials at SVSP to place him in a signed cell -- clearly state[s] a

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cognizable claim for relief, and his due process claim should not be dismissed." (Am. to Compl. at

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10.) Such an allegation is insufficient for the Court to reconsider the dismissal of his due process

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claim. If Plaintiff were granted leave to further amend his due process claim, the amendment would

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be futile. Accordingly, Plaintiff has not established grounds for reconsideration of the Court's

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dismissal of his due process claim, and his motion for leave to file a motion for reconsideration is

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DENIED.

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III.

Defendants' "Administrative Motion to Change Time for Settlement Proceedings
Under the Pro Se Prisoner Settlement Program"

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Because the Court has not found any cognizable claims in Plaintiff's amendment to the

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complaint, Defendants' "Administrative Motion to Change Time for Settlement Proceedings Under

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the Pro Se Prisoner Settlement Program" (docket no. 25) is DENIED. All parties shall be prepared

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to attend the scheduled settlement hearing on April 20, 2011 at 1:00 PM at Solano.

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IV.

Plaintiff's Motion for a Copy of the Amendment to the Complaint

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Plaintiff's motion for a copy of the amendment to the complaint (docket no. 28) is only

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GRANTED in part. The Clerk of the Court is directed to copy pages 1 through 15 of his amendment

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to the complaint. Plaintiff must pay for the xerox copying of all other pages of the amendment of

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the complaint, including all attached exhibits.

United States District Court
For the Northern District of California

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This Order terminates Docket nos. 22, 25 and 28.

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IT IS SO ORDERED.

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DATED: 4/13/11
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SAUNDRA BROWN ARMSTRONG
UNITED STATES DISTRICT JUDGE

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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G:\PRO-SE\SBA\CR.08\Badwi2221.revAM2compl&denyEOT.wpd
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RAMZI BADWI,
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Case Number: CV08-02221 SBA
Plaintiff,

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CERTIFICATE OF SERVICE
v.

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EVANS et al,
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Defendant.
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United States District Court
For the Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on April 13, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing
said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Ramzi Ahmed Badwi K-81555
C.S.A.T.F. State Prison at Corcoran
P.O. Box 5242
Corcoran, CA 93212

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Dated: April 13, 2011

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Richard W. Wieking, Clerk
By: LISA R CLARK, Deputy Clerk

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