Anderson v. Wilson et al

Filing 5

ORDER OF PARTIAL DISMISSAL AND SERVICE. Signed by Judge Yvonne Gonzalez Rogers on 10/30/13. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 10/30/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ANDREW S. ANDERSON,

No. C 12-5297 YGR (PR)

Plaintiff,

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ORDER OF PARTIAL DISMISSAL
AND SERVICE

vs.

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W. J. WILSON, et al.,

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Defendants.
_______________________________________/

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INTRODUCTION

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Plaintiff, a state prisoner, filed a pro se civil rights action pursuant to 42 U.S.C. § 1983. He

United States District Court
For the Northern District of California

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also seeks leave to proceed in forma pauperis, which will be granted in a separate Order.
Venue is proper because the events giving rise to the claim are alleged to have occurred at

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the California Training Facility ("CTF"), which is located in this judicial district. See 28 U.S.C.
§ 1391(b).
In his complaint, Plaintiff names the following Defendants at CTF: Associate Warden W. J.

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Wilson; Education Supervisor Barbara Lusk; Supervisory Psychologist D. Wynn; Correctional
Lieutenants P. J. Frudden, J. Esparza, Jr., D. Dunstan; Correctional Sergeant M. Evans; Correctional
Officers Rincon, Lopez and Rice; Chief Deputy Warden M. E. Spearman; and Warden Randy
Grounds. Plaintiff seeks monetary damages.
DISCUSSION

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I.

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. 28 U.S.C.
§ 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that
are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary
relief from a defendant who is immune from such relief. Id. § 1915A(b)(1), (2). Pro se pleadings
must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).
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

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(2) that the alleged violation was committed by a person acting under the color of state law. West v.

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

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II.

Legal Claims

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Having reviewed the complaint, the Court finds that Plaintiff's allegations, liberally

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construed, state a cognizable First Amendment claim that Defendants Wilson, Lusk, Wynn,

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Frudden, Esparza, Dunstan, and Spearman retaliated against Plaintiff based on their actions relating

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to bringing false charges against him in order to place him in the Secure Housing Unit as

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punishment for filing a 602 inmate appeal against Defendant Wilson. See Mt. Healthy City Bd. of

United States District Court
For the Northern District of California

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Educ. v. Doyle, 429 U.S. 274, 283-84 (1977) (Retaliation by a state actor for the exercise of a

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constitutional right is actionable under 42 U.S.C. § 1983, even if the act, when taken for different

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reasons, would have been proper.).

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To the extent Plaintiff claims that Defendants Evans, Lopez, Rice and Rincon intentionally

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or negligently lost his personal property, that claim is dismissed. Neither the intentional nor

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negligent deprivation or destruction of an inmate's property states a claim under § 1983 if the

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deprivation was random and unauthorized. See Hudson v. Palmer, 468 U.S. 517, 533 (1984)

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(intentional destruction of inmate's property); Parratt v. Taylor, 451 U.S. 527, 535-44 (1981) (state

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employee negligently lost prisoner's hobby kit), overruled in part on other grounds, Daniels v.

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Williams, 474 U.S. 327, 330-31 (1986). The availability of an adequate state post-deprivation

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remedy, e.g., a state tort action, precludes relief because it provides sufficient procedural due

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process. See Zinermon v. Burch, 494 U.S. 113, 128 (1990) (where state cannot foresee, and

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therefore provide meaningful hearing prior to, deprivation statutory provision for post-deprivation

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hearing or common law tort remedy for erroneous deprivation satisfies due process). California law

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provides such an adequate post-deprivation remedy. See Barnett v. Centoni, 31 F.3d 813, 816-17

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(9th Cir. 1994) (citing Cal. Gov't Code §§ 810-895).

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It is well-established that there is no constitutional right to a job or rehabilitation in prison.

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See Hoptowit v. Ray, 682 F.2d 1237, 1254-55 (9th Cir. 1982) (no right to job); Rizzo v. Dawson, 778

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F.2d 527, 530 (9th Cir. 1985) (no right to vocational course for rehabilitation); see also Lyon v.

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Farrier, 727 F.2d 766, 769 (8th Cir. 1984) (prisoners have no right to tenure in their prison jobs).

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Nor is there any indication that California has created a protected liberty or property interest in a

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prison job. The California Constitution states that its provisions on inmate labor shall not be

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interpreted as creating a right of inmates to work, Cal. Const. art. XIV § 5, and the state statute

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which provides for work credits, Cal. Penal Code § 2933, has been found not to create a protected

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

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Plaintiff's claims relating to the loss of his job and wages as well as his allegations of Defendants'

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"interference with [his] rehabilitation" are DISMISSED without leave to amend.

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California's transfer regulations also do not create a constitutionally protected liberty interest

United States District Court
For the Northern District of California

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because they contain no substantive limitations on prison officials' discretion to grant or refuse the

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transfer of prisoners. See Cal. Pen. Code § 5080; Cal. Code Regs. tit. 15, § 3379; People v. Lara,

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155 Cal. App. 3d 570, 575-76 (1984) (discretion to transfer inmates is vested in the Director of

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Corrections). A provision that merely provides procedural requirements, even if mandatory, cannot

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provide the basis for a constitutionally protected liberty interest. See Smith v. Noonan, 992 F.2d

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987, 989 (9th Cir. 1993). Because the statutory language does not meet the first prong of the Sandin

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test,1 no protected liberty interest requiring constitutional protection is created and Plaintiff fails to

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state a claim for relief. Accordingly, Plaintiff's claim relating to the threat of transfer and his

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eventual transfer to another prison are DISMISSED with prejudice.

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Plaintiff alleges that Defendants' acts of retaliation violated various provisions of California

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constitutional, statutory and tort law. The federal supplemental jurisdiction statute provides that

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"'district courts shall have supplemental jurisdiction over all other claims that are so related to

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claims in the action within such original jurisdiction that they form part of the same case or

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controversy under Article III of the United States Constitution.'" 28 U.S.C. § 1367(a). Liberally

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construed, Plaintiff's allegations satisfy the statutory requirement. Accordingly, the Court will

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exercise supplemental jurisdiction over Plaintiff's state law claims.

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Deprivations authorized by state law also may 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, that is, give the inmate a kind of right to avoid it, and
(2) the liberty in question is one of "real substance." Sandin v. Conner, 515 U.S. 472, 477-87
(1995).
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Finally, the Court assumes Plaintiff has named Defendant Grounds, the Warden at CTF,

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because he is responsible for running the prison and should be liable for the alleged retaliatory

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actions of his subordinates. This is a respondeat superior claim, that is, he seeks to hold Defendant

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Grounds liable as the superiors of the persons he contends violated his rights. This is, however, not

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a proper basis for Section 1983 liability. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

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The supervisory liability claim against Defendant Grounds is DISMISSED.
CONCLUSION

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For the foregoing reasons, the Court orders as follows:

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1.

Plaintiff's complaint states a cognizable First Amendment claim of retaliation against

United States District Court
For the Northern District of California

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Defendants Wilson, Lusk, Wynn, Frudden, Esparza, Dunstan, and Spearman. The Court will

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exercise supplemental jurisdiction over Plaintiff's state law claims. Plaintiff's remaining claims are

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DISMISSED, as explained above.

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2.

The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of

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Service of Summons, two copies of the Waiver of Service of Summons, a copy of the complaint and

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all attachments thereto (Docket No. 1) and a copy of this Order to the following prison officials at

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CTF: Associate Warden W. J. Wilson; Education Supervisor Barbara Lusk; Supervisory

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Psychologist D. Wynn; Correctional Lieutenants P. J. Frudden, J. Esparza, Jr., D. Dunstan;

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and Chief Deputy Warden M. E. Spearman. The Clerk of the Court shall also mail a copy of the

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complaint and a copy of this Order to the California State Attorney General's Office. Additionally,

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the Clerk shall mail a copy of this Order to Plaintiff.

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3.

Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure requires

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them to cooperate in saving unnecessary costs of service of the summons and complaint. Pursuant

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to Rule 4, if Defendants, after being notified of this action and asked by the Court, on behalf of

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Plaintiff, to waive service of the summons, fail to do so, they will be required to bear the cost of

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such service unless good cause be shown for their failure to sign and return the waiver form. If

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service is waived, this action will proceed as if Defendants had been served on the date that the

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waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendants will not be required to serve

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and file an answer before sixty (60) days from the date on which the request for waiver was sent.

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(This allows a longer time to respond than would be required if formal service of summons is

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necessary.) Defendants are asked to read the statement set forth at the foot of the waiver form that

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more completely describes the duties of the parties with regard to waiver of service of the summons.

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If service is waived after the date provided in the Notice but before Defendants have been

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personally served, the Answer shall be due sixty (60) days from the date on which the request for

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waiver was sent or twenty (20) days from the date the waiver form is filed, whichever is later.

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4.

Defendants shall answer the complaint in accordance with the Federal Rules of Civil

Procedure. The following briefing schedule shall govern dispositive motions in this action:
a.

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No later than sixty (60) days from the date their answer is due, Defendants

United States District Court
For the Northern District of California

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shall file a motion for summary judgment or other dispositive motion. The motion must be

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supported by adequate factual documentation, must conform in all respects to Federal Rule of Civil

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Procedure 56, and must include as exhibits all records and incident reports stemming from the

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events at issue. A motion for summary judgment also must be accompanied by a Rand2 notice so

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that Plaintiff will have fair, timely and adequate notice of what is required of him in order to oppose

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the motion. Woods v. Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice requirement set out in Rand

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must be served concurrently with motion for summary judgment). A motion to dismiss for failure to

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exhaust available administrative remedies must be accompanied by a similar notice. Stratton v.

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Buck, 697 F.3d 1004, 1008 (9th Cir. 2012); Woods, 684 F.3d at 935 (notice requirement set out in

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Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003), must be served concurrently with motion to

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dismiss for failure to exhaust available administrative remedies).

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If Defendants are of the opinion that this case cannot be resolved by summary judgment,

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they shall so inform the Court prior to the date the summary judgment motion is due. All papers

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filed with the Court shall be promptly served on Plaintiff.
b.

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Plaintiff's opposition to the dispositive motion shall be filed with the Court

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and served on Defendants no later than twenty-eight (28) days after the date on which Defendants'

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motion is filed.
c.

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Plaintiff is advised that a motion for summary judgment under Rule 56 of the

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Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998).
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Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must do

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in order to oppose a motion for summary judgment. Generally, summary judgment must be granted

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when there is no genuine issue of material fact -- that is, if there is no real dispute about any fact that

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would affect the result of your case, the party who asked for summary judgment is entitled to

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judgment as a matter of law, which will end your case. When a party you are suing makes a motion

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for summary judgment that is properly supported by declarations (or other sworn testimony), you

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cannot simply rely on what your complaint says. Instead, you must set out specific facts in

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declarations, depositions, answers to interrogatories, or authenticated documents, as provided in

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Rule 56(e), that contradicts the facts shown in the defendant's declarations and documents and show

United States District Court
For the Northern District of California

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that there is a genuine issue of material fact for trial. If you do not submit your own evidence in

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opposition, summary judgment, if appropriate, may be entered against you. If summary judgment is

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granted, your case will be dismissed and there will be no trial. Rand, 154 F.3d at 962-63.

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Plaintiff also is advised that a motion to dismiss for failure to exhaust available

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administrative remedies under 42 U.S.C. § 1997e(a) will, if granted, end your case, albeit without

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prejudice. You must "develop a record" and present it in your opposition in order to dispute any

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"factual record" presented by the defendants in their motion to dismiss. Wyatt, 315 F.3d at 1120

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n.14. You have the right to present any evidence to show that you did exhaust your available

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administrative remedies before coming to federal court. Such evidence may include:

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(1) declarations, which are statements signed under penalty of perjury by you or others who have

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personal knowledge of relevant matters; (2) authenticated documents -- documents accompanied by

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a declaration showing where they came from and why they are authentic, or other sworn papers such

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as answers to interrogatories or depositions; (3) statements in your complaint insofar as they were

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made under penalty of perjury and they show that you have personal knowledge of the matters state

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therein. In considering a motion to dismiss for failure to exhaust, the court can decide disputed

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issues of fact with regard to this portion of the case. Stratton, 697 F.3d at 1008-09.

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(The Rand and Wyatt/Stratton notices above do not excuse Defendants' obligation to serve

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said notices again concurrently with motions to dismiss for failure to exhaust available

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administrative remedies and motions for summary judgment. Woods, 684 F.3d at 935.)
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date Plaintiff's opposition is filed.

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Defendants shall file a reply brief no later than fourteen (14) days after the

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The motion shall be deemed submitted as of the date the reply brief is due.

No hearing will be held on the motion unless the Court so orders at a later date.
5.

Discovery may be taken in this action in accordance with the Federal Rules of Civil

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Procedure. Leave of the Court pursuant to Rule 30(a)(2) is hereby granted to Defendants to depose

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Plaintiff and any other necessary witnesses confined in prison.

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United States District Court
For the Northern District of California

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6.

All communications by Plaintiff with the Court must be served on Defendants or

their counsel, once counsel has been designated, by mailing a true copy of the document to them.
7.

It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court

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informed of any change of address and must comply with the Court's orders in a timely fashion.

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Pursuant to Northern District Local Rule 3-11 a party proceeding pro se whose address changes

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while an action is pending must promptly file a notice of change of address specifying the new

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address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint when: (1) mail

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directed to the pro se party by the Court has been returned to the Court as not deliverable, and

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(2) the Court fails to receive within sixty days of this return a written communication from the pro

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se party indicating a current address. See L.R. 3-11(b).

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8.

Extensions of time are not favored, though reasonable extensions will be granted.

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Any motion for an extension of time must be filed no later than fourteen (14) days prior to the

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deadline sought to be extended.

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IT IS SO ORDERED.

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DATED: October 30, 2013
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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G:\PRO-SE\YGR\CR.12\Anderson5297.service.wpd

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