Trevino v. Dotson et al

Filing 15

ORDER OF DISMISSAL WITH LEAVE TO AMEND by Judge Phyllis J. Hamilton denying 8 Motion to Appoint Counsel. (Certificate of Service Attached)(napS, COURT STAFF) (Filed on 3/15/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ROBERT TREVINO,

v.

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ORDER OF DISMISSAL WITH LEAVE
TO AMEND

E. DOTSON, et al.,

Re: Dkt. No. 8

Defendants.

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United States District Court
Northern District of California

Case No. 15-cv-05373-PJH

Plaintiff,

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Plaintiff, a state prisoner, has filed a pro se civil rights complaint under 42 U.S.C. §

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1983. He has been granted leave to proceed in forma pauperis.
DISCUSSION

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I.

STANDARD OF REVIEW
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

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may be granted, or seek monetary relief from a defendant who is immune from such

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relief. Id. at 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v.

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Pacifica Police 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

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

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necessary; the statement need only '"give the defendant fair notice of what the . . . . claim

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is and the grounds upon which it rests."'" Erickson v. Pardus, 551 U.S. 89, 93 (2007)

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(citations omitted). Although in order to state a claim a complaint “does not need detailed

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factual allegations, . . . a plaintiff's obligation to provide the 'grounds’ of his 'entitle[ment]

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to relief' requires more than labels and conclusions, and a formulaic recitation of the

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elements of a cause of action will not do. . . . Factual allegations must be enough to

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raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550

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U.S. 544, 555 (2007) (citations omitted). A complaint must proffer "enough facts to state

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a claim to relief that is plausible on its face." Id. at 570. The United States Supreme

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Court has recently explained the “plausible on its face” standard of Twombly: “While legal

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conclusions can provide the framework of a complaint, they must be supported by factual

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allegations. When there are well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an entitlement to relief.”

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United States District Court
Northern District of California

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Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
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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II.

LEGAL CLAIMS
Plaintiff raises several claims regarding a disciplinary finding where he was found

guilty of assaulting another inmate.

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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

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or 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

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

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477, 486-487 (1994). A claim for damages bearing that relationship to a conviction or

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sentence that has not been so invalidated is not cognizable under § 1983. Id. at 487.

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Heck also bars a claim for using the wrong Wolff v. McDonnell, 418 U.S. 539 (1974),

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procedures in a disciplinary hearing that resulted in the deprivation of time credits if "the
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nature of the challenge to the procedures [is] such as necessarily to imply the invalidity of

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the judgment." Edwards v. Balisok, 520 U.S. 641, 645 (1997).

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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,

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223-27 (1976). Changes in conditions so severe as to affect the sentence imposed in an

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unexpected manner implicate the Due Process Clause itself, whether or not they are

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

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authorized by state law that are less severe or more closely related to the expected terms

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of confinement may also amount to deprivations of a procedurally protected liberty

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interest, provided that (1) state statutes or regulations narrowly restrict the power of

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United States District Court
Northern District of California

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prison officials to impose the deprivation, i.e., give the inmate a kind of right to avoid it,

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and (2) the liberty in question is one of "real substance." See id. at 477-87.

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Allegations by a prisoner that he was denied due process in conjunction with a

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disciplinary proceeding do not present a constitutionally cognizable claim, however,

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unless the deprivation suffered is one of "real substance" as defined in Sandin. "Real

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substance" will generally be limited to freedom from (1) restraint that imposes "atypical

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and significant hardship on the inmate in relation to the ordinary incidents of prison life,"

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

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487. In determining whether a restraint is an “atypical and significant hardship,” Sandin

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suggests that courts should consider whether the challenged condition mirrored the

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conditions imposed on inmates in administrative segregation and protective custody, and

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thus comported with the prison’s discretionary authority; the duration of the condition; the

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degree of restraint imposed; and whether the discipline will invariably affect the duration

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of the prisoner's sentence. See Serrano v. Francis, 345 F.3d 1071, 1078 (9th Cir. 2003).

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Prisoners retain their right to due process subject to the restrictions imposed by

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the nature of the penal system. See Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Thus

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although prison disciplinary proceedings are not part of a criminal prosecution and the full

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panoply of rights due a defendant in such proceedings does not apply, where serious
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rules violations are alleged and the sanctions to be applied implicate state statutes or

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regulations which narrowly restrict the power of prison officials to impose the sanctions

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and the sanctions are severe, the Due Process Clause requires certain minimum

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procedural protections. See id. at 556-57, 571-72 n.19.

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Wolff established five procedural requirements. First, "written notice of the
charges must be given to the disciplinary-action defendant in order to inform him of the

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charges and to enable him to marshal the facts and prepare a defense." Wolff, 418 U.S.

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at 564. Second, "[a]t least a brief period of time after the notice, no less than 24 hours,

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should be allowed to the inmate to prepare for the appearance before the [disciplinary

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committee]." Id. Third, "there must be a 'written statement by the factfinders as to the

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United States District Court
Northern District of California

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evidence relied on and reasons' for the disciplinary action." Id. (quoting Morrissey v.

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Brewer, 408 U.S. 471, 489 (1972)). Fourth, "the inmate facing disciplinary proceedings

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should be allowed to call witnesses and present documentary evidence in his defense

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when permitting him to do so will not be unduly hazardous to institutional safety or

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correctional goals." Id. at 566; Fifth, "[w]here an illiterate inmate is involved . . . or

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[where] the complexity of the issue makes it unlikely that the inmate will be able to collect

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and present the evidence necessary for an adequate comprehension of the case, he

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should be free to seek the aid of a fellow inmate, or . . . to have adequate substitute aid . .

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. from the staff or from a[n] . . . inmate designated by the staff." Wolff, 418 U.S. at 570.

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Plaintiff was found guilty of a prison disciplinary violation for assault on another

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inmate with a weapon capable of causing serious physical injury. The disciplinary finding

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arose from a July 15, 2011, incident where plaintiff fought with another inmate. Plaintiff

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admits that he fought with the other inmate but denies using a weapon and argues that

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prison officials planted the weapon as part of a conspiracy and also falsified records.

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Part of plaintiff’s due process claim is based on the hearing officer at the disciplinary

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hearing denying plaintiff’s request to call the other inmate as a witness.

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The court first notes that plaintiff’s complaint names more than 30 defendants and
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is 150 pages long with more than 300 pages of exhibits. Plaintiff has failed, pursuant to

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Fed. R. Civ. P. 8(a)(2), to provide “a short and plain statement of the claim showing that

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the pleader is entitled to relief....” Rule 8 requires “sufficient allegations to put defendants

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fairly on notice of the claims against them.” McKeever v. Block, 932 F.2d 795, 798 (9th

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Cir.1991)). Accord Richmond v. Nationwide Cassel L.P., 52 F.3d 640, 645 (7th Cir.1995)

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(amended complaint with vague and scanty allegations fails to satisfy the notice

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requirement of Rule 8.) “The propriety of dismissal for failure to comply with Rule 8 does

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not depend on whether the complaint is wholly without merit,” McHenry v. Renne, 84 F.3d

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1172, 1179 (9th Cir.1996). Plaintiff’s complaint in this action illustrates the “unfair

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burdens” imposed by complaints, “prolix in evidentiary detail, yet without simplicity,

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United States District Court
Northern District of California

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conciseness and clarity” which “fail to perform the essential functions of a complaint.”

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McHenry, 84 F.3d at 1179–80.

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The complaint is dismissed with leave to amend to present a more concise set of

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allegations, facts, and exhibits. An amended complaint must not be longer than 25

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pages with another 25 pages of exhibits.

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Furthermore, it is not clear if plaintiff was assessed a loss of time credits as a

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result of the guilty finding. Plaintiff proceeds with a habeas action regarding the same

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July 15, 2011 incident, in Trevino v. Beard, Case No. 15-cv-4837-EMC. Though, the

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court noted in serving that habeas petition on respondent that it was unclear if a loss of

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time credits was imposed. Id., Docket No. 17 at 1. In an amended complaint, plaintiff

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must also address if there was a loss of time credits that have not been restored and why

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this case is not Heck barred.

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If there was not a loss of time credits plaintiff must also describe how any

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punishment imposed from the disciplinary finding resulted in a due process violation

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pursuant to Sandin. Plaintiff should also describe how his right to call a witness was

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violated because that right is not absolute pursuant to Wolff. Prison officials are not

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required to place in the "administrative record" their reasons for refusing to allow

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witnesses to testify, but may wait to provide the explanation in court if the refusal is
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challenged. See Ponte v. Real, 471 U.S. 491, 497 (1985). Prison officials can note that

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the reason for denying a witness may be for “irrelevance, lack of necessity, or the

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hazards presented in individual cases.” Wolff, 418 U.S. at 566. In this case, the witness

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plaintiff requested was the inmate plaintiff had been fighting with, and the hearing officer

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concluded that both inmates presence together could present a safety and security risk.

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Docket No. 1-5 at 43 of 107.

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Plaintiff has also requested the appointment of counsel. However, there is no
constitutional right to counsel in a civil case, Lassiter v. Dep't of Social Services, 452 U.S.

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18, 25 (1981), and although district courts may "request" that counsel represent a litigant

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who is proceeding in forma pauperis, as plaintiff is here, see 28 U.S.C. § 1915(e)(1), that

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United States District Court
Northern District of California

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does not give the courts the power to make "coercive appointments of counsel." Mallard

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v. United States Dist. Court, 490 U.S. 296, 310 (1989).

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The Ninth Circuit has held that a district court may ask counsel to represent an

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indigent litigant only in "exceptional circumstances," the determination of which requires

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an evaluation of both (1) the likelihood of success on the merits and (2) the ability of the

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plaintiff to articulate his claims pro se in light of the complexity of the legal issues

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involved. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). The issues presented

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are not complex and do not represent exceptional circumstances. Plaintiff does not

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require counsel at this point in the litigation to clearly present his claims in an amended

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complaint. The motion is denied.

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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 April 19,

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2016, and must include the caption and civil case number used in this order and the

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

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

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wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may
not incorporate material from the original complaint by reference. An amended
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complaint must not be longer tha 25 page with ano
an
es
other 25 pa
ages of exh
hibits.

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2. The motion to appoint counsel (Doc ket No. 8) i DENIED.
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is
.

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3. It is the plaintif respons
s
ff's
sibility to pro
osecute this case. Pla
aintiff must keep the

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with
cou informed of any change of address by filing a separ
urt
d
rate paper w the cle headed
erk

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“No
otice of Cha
ange of Address,” and must com
d
mply with the court's ord
e
ders in a tim
mely

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fas
shion. Failu to do so may resul in the dism
ure
o
lt
missal of th action fo failure to prosecute
his
or

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pursuant to Federal Rule of Civil Pr
e
rocedure 41
1(b).

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United States District Court
Northern District of California

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IT IS SO ORDER
S
RED.
Da
ated: March 15, 2016
h
__
__________
__________
__________
_______
PH
HYLLIS J. H
HAMILTON
Un
nited States District Ju
s
udge

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ANDOAK\Data\Us
sers\PJHALL\_psp
p\2015\2015_0537
73_Trevino_v_Dot
tson_(PSP)\15-cv-05373-PJH-dwlta
a.docx

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UNITED STATES D
DISTRICT C
COURT

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NORTHER DISTRIC OF CAL
N
RN
CT
LIFORNIA

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ROBERT TR
R
REVINO,

Case No. 15-cv-053
373-PJH

Plaintiff,
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v.

CERTIFIC
CATE OF S
SERVICE

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E. DOTSON, et al.,
Defendants.

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United States District Court
Northern District of California

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I, the undersigned hereby ce
u
d,
ertify that I am an emp
ployee in th Office of the Clerk,
he
f
S.
C
hern Distric of Californ
ct
nia.
U.S District Court, North
That on March 15 2016, I SERVED a t
5,
true and correct copy(ies) of the a
attached,
by placing said copy(ies) in a posta paid en velope add
age
dressed to t person(
the
(s)
hereinafter lis
sted, by dep
positing said envelope in the U.S. Mail, or by placing sa
d
e
y
aid
copy(ies) into an inter-of
o
ffice deliver receptaclle located in the Clerk office.
ry
k's

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obert Trevin ID: J-64367
no
Ro
Sa
alinas Valley State Pris D4-#13
y
son
30L
P.O Box 105
O.
50
So
oledad, CA 93960

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ated: March 15, 2016
h
Da

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Susan Y. So
oong
Clerk, United States Dis
d
strict Court
C

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y:________
_________
_________
By
Nichole Peric Deputy C
c,
Clerk to the
e
Honorable P
PHYLLIS J. HAMILTON
N

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