Lee v. Phillips et al

Filing 9

ORDER OF DISMISSAL WITH LEAVE TO AMEND AND DENYING MOTION FOR EXTENSION by Judge Phyllis J. Hamilton finding as moot 5 Motion for Extension of Time to File (Attachments: # 1 Certificate/Proof of Service) (nah, COURT STAFF) (Filed on 9/13/2013)

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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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FRANK LEE,
Plaintiff,

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vs.

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ORDER OF DISMISSAL WITH
LEAVE TO AMEND AND
DENYING MOTION FOR
EXTENSION

OFFICER M. PHILLIPS, et. al.,

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For the Northern District of California

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United States District Court

No. C 13-3367 PJH (PR)

Defendant.
/

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Plaintiff, an inmate at R.J. Donovan Correctional Facility, has filed a pro se civil
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rights complaint under 42 U.S.C. § 1983. He has been granted leave to proceed in forma
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pauperis.
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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
whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 129 S.Ct.

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For the Northern District of California

United States District Court

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1937, 1950 (2009).

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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 alleges that while at Salinas Valley State Prison his due process rights were

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violated, as his investigative employee never interviewed him when he was issued a rules

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violation report and then placed in Administrative Segregation (“Ad. Seg.”).

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In order to recover damages for an allegedly unconstitutional conviction or

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imprisonment, or for other harm caused by actions whose unlawfulness would render a

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conviction or sentence invalid, a 42 U.S.C. § 1983 plaintiff must prove that the conviction or

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sentence has been reversed on direct appeal, expunged by executive order, declared

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invalid by a state tribunal authorized to make such determination, or called into question by

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a federal court's issuance of a writ of habeas corpus. Heck v. Humphrey, 512 U.S. 477,

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486-487 (1994). Heck also bars a claim for using the wrong procedures in a disciplinary

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hearing that resulted in the deprivation of time credits if "the nature of the challenge to the

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procedures [is] such as necessarily to imply the invalidity of the judgment." Edwards v.
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Balisok, 520 U.S. 641, 645 (1997).
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). A state

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

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

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For the Northern District of California

United States District Court

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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.

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Assuming there was an atypical and significant hardship, the Supreme Court

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established five procedural requirements for disciplinary hearings. See Wolff v. McDonnell,

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418 U.S. 539 (1974). First, "written notice of the charges must be given to the

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disciplinary-action defendant in order to inform him of the charges and to enable him to

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marshal the facts and prepare a defense." Wolff, 418 U.S. at 564. Second, "at least a brief

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period of time after the notice, no less than 24 hours, should be allowed to the inmate to

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prepare for the appearance before the [disciplinary committee]." Id. Third, "there must be

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a 'written statement by the factfinders as to the evidence relied on and reasons' for the

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disciplinary action." Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 489 (1972)). Fourth,

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"the inmate facing disciplinary proceedings should be allowed to call witnesses and present
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documentary evidence in his defense when permitting him to do so will not be unduly

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hazardous to institutional safety or correctional goals." Id. at 566. Fifth, "[w]here an

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illiterate inmate is involved . . . or where the complexity of the issues makes it unlikely that

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the inmate will be able to collect and present the evidence necessary for an adequate

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comprehension of the case, he should be free to seek the aid of a fellow inmate, or . . . to

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have adequate substitute aid . . . from the staff or from a[n] . . . inmate designated by the

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staff." Id. at 570. The Court specifically held that the Due Process Clause does not require

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that prisons allow inmates to cross-examine their accusers, see id. at 567-68, and does not

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give rise to a right to counsel in the proceedings, see id. at 569-70.
Plaintiff’s complaint will be dismissed with leave to amend to provide additional

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For the Northern District of California

United States District Court

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information. It is not clear from the complaint if plaintiff was deprived time credits due to the

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rules violation report. If time credits were deprived then plaintiff must demonstrate that the

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rules violation report was reversed or expunged. Assuming that no time credits were

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deprived, plaintiff has still failed to state a claim. Other than stating he was placed in Ad.

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Seg., plaintiff provides no description of any hardships associated with his placement or

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even how long he was there. Assuming there was a valid hardship plaintiff must also

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provide more information how the Wolff procedural requirements were not met. Simply

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stating that he was never interviewed by his investigative employee is insufficient.

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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 October 14,

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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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designated time will result in the dismissal of these claims.

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2. Plaintiff’s motion for an extension of time to file an IFP application (Docket No. 5)
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is DENIED as moot as IFP status has been granted.
3. 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.

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Dated: September 13, 2013.
PHYLLIS J. HAMILTON
United States District Judge

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For the Northern District of California

United States District Court

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