Yandell v. Cate et al

Filing 4

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Amended Complaint due by 2/7/2013. Signed by Judge Phyllis J. Hamilton on 1/7/13. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 1/7/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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RONALD DEAN YANDELL,

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Plaintiff,
vs.

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ORDER OF DISMISSAL WITH
LEAVE TO AMEND

MATTHEW CATE, et al.,
Defendants.

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For the Northern District of California

United States District Court

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No. C 12-4566 PJH (PR)

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Plaintiff, a prisoner at Pelican Bay State Prison, has filed a pro se civil rights
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complaint under 42 U.S.C. § 1983. He has paid the filing fee.
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DISCUSSION
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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
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seek redress from a governmental entity or officer or employee of a governmental entity.
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28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and
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dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may
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be granted, or seek monetary relief from a defendant who is immune from such relief. Id. at
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1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police
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Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
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Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of
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the claim showing that the pleader is entitled to relief." "Specific facts are not necessary;
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the statement need only '"give the defendant fair notice of what the . . . . claim is and the
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grounds upon which it rests."'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations
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omitted). Although in order to state a claim a complaint “does not need detailed factual
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allegations, . . . a plaintiff's obligation to provide the 'grounds’ of his 'entitle[ment] to relief'

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requires more than labels and conclusions, and a formulaic recitation of the elements of a

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cause of action will not do. . . . Factual allegations must be enough to raise a right to relief

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above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)

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(citations omitted). A complaint must proffer "enough facts to state a claim to relief that is

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plausible on its face." Id. at 570. The United States Supreme Court has recently explained

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the “plausible on its face” standard of Twombly: “While legal conclusions can provide the

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framework of a complaint, they must be supported by factual allegations. When there are

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well-pleaded factual allegations, a court should assume their veracity and then determine

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whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 129 S.Ct.
1937, 1950 (2009).

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For the Northern District of California

United States District Court

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

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elements: (1) that a right secured by the Constitution or laws of the United States was

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violated, and (2) that the alleged deprivation was committed by a person acting under the

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color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

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B.

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Legal Claims
Plaintiff states he was engaged in a hunger strike when he was placed in

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Administrative Segregation (“Ad. Seg.”) for approximately two weeks. Plaintiff only had a

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jumpsuit, some shirts, two blankets, and the air vents were blowing at full capacity making it

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cold. When plaintiff left Ad. Seg. he was transferred to a different prison. Before boarding

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the van for transport plaintiff was given sodium phosphorus pills by a nurse, which he took.

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On the van, plaintiff became very sick with nausea, dizziness and cramps. A few days later

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plaintiff was seen by a doctor and his blood levels were normal. Plaintiff was transferred

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back to Pelican Bay two weeks later, where he filed inmate grievances related to the

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placement in Ad. Seg., medical treatment and transfer to a different prison. In this action,

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plaintiff alleges retaliation and violations of due process in his placement in Ad. Seg. and

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transfer to another prison and a violation of the Eighth Amendment with respect to the pills

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that made him sick. For the reasons set forth below, the complaint will be dismissed with

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leave to amend.
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Interests that are procedurally protected by the Due Process Clause may arise from

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two sources – the Due Process Clause itself and laws of the states. See Meachum v.

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Fano, 427 U.S. 215, 223-27 (1976). In the prison context, these interests are generally

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ones pertaining to liberty. Changes in conditions so severe as to affect the sentence

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imposed in an unexpected manner implicate the Due Process Clause itself, whether or not

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they are authorized by state law. See Sandin v. Conner, 515 U.S. 472, 484 (1995) (citing

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Vitek v. Jones, 445 U.S. 480, 493 (1980) (transfer to mental hospital), and Washington v.

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Harper, 494 U.S. 210, 221-22 (1990) (involuntary administration of psychotropic drugs)). A

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state may not impose such changes without complying with minimum requirements of

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For the Northern District of California

United States District Court

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procedural due process. See id. at 484.
Deprivations that are authorized by state law and are less severe or more closely

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related to the expected terms of confinement may also amount to deprivations of a

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procedurally protected liberty interest, provided that (1) state statutes or regulations

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narrowly restrict the power of prison officials to impose the deprivation, i.e., give the inmate

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a kind of right to avoid it, and (2) the liberty in question is one of "real substance." See id.

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at 477-87. Generally, "real substance" will be limited to freedom from (1) a restraint that

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imposes "atypical and significant hardship on the inmate in relation to the ordinary incidents

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of prison life," id. at 484, or (2) state action that "will inevitably affect the duration of [a]

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sentence," id. at 487. Plaintiff must provide more information how two weeks in Ad. Seg. at

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Pelican Bay constituted an atypical and significant hardship. Plaintiff must also identify the

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defendants responsible for his placement in Ad. Seg. Stating that he was placed in Ad.

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Seg. on orders from the warden of the prison or the director of the entire state prison

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system, is insufficient as it does not appear those individuals were personally involved.

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The transfer of plaintiff from one prison to another does not violate his right to due

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process. Prisoners have no constitutional right to incarceration in a particular institution.

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See Olim v. Wakinekona, 461 U.S. 238, 244–48 (1983); Meachum v. Fano, 427 U.S. 215,

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224 (1976). A non-consensual transfer is not per se violative of either due process or equal

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protection rights, see Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991). “It is well
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settled that the decision where to house inmates is at the core of prison administrators'

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expertise.” McKune v. Lile, 536 U.S. 24, 39 (2002).

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To the extent plaintiff alleges the placement in Ad. Seg. and transfer occurred due to

involved in the retaliation is insufficient. Plaintiff must identify the actions of specific

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defendants. “Within the prison context, a viable claim of First Amendment retaliation entails

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five basic elements: (1) An assertion that a state actor took some adverse action against an

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inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled

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the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably

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advance a legitimate correctional goal .” Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th

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For the Northern District of California

retaliation, he must provide more information and simply stating that all defendants were

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United States District Court

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Cir. 2005) (footnote omitted). It appears from the complaint that plaintiff was placed in Ad.

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Seg. and transferred because of his position as one of the hunger strike leaders and the

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disruptions it was causing at the prison. The complaint includes procedures from the prison

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that inmates who organize hunger strikes are in violation of rules and are subject to

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discipline and being moved from nonparticipating inmates to maintain order. This appears

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to be a legitimate correctional goal.

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Medical claims like the one presented by plaintiff are actionable under section 1983

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only if plaintiff is able to allege facts plausibly asserting that he was the victim of deliberate

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indifference to a serious medical need, a violation of the Eighth Amendment's proscription

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against cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976);

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McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX

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Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). Plaintiff must

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provide more information how the nurse who gave him the pill was deliberately indifferent.

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While plaintiff was sick for the van ride, he states in the complaint he was find a few days

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later.

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Plaintiff is also informed that there is no constitutional right to a prison administrative

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appeal or grievance system. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003);

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Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). To the extent plaintiff alleges that his
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grievances were improperly denied or screened out, this fails to state a claim.

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CONCLUSION

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1. The complaint is DISMISSED with leave to amend in accordance with the

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standards set forth above. The amended complaint must be filed no later than February 7,

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2013, and must include the caption and civil case number used in this order and the words

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

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replaces the original complaint, plaintiff must include in it all the claims he wishes to

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present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not

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

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For the Northern District of California

United States District Court

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designated time will result in the dismissal of these claims.
2. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the

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

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“Notice of Change of Address,” and must comply with the court's orders in a timely fashion.

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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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IT IS SO ORDERED.
Dated: January 7, 2013.
PHYLLIS J. HAMILTON
United States District Judge

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