Fletcher v. Mendez

Filing 5

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Signed by Judge Yvonne Gonzalez Rogers on 1/11/17. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 1/11/2017)Copy of blank civil rights complain form mailed to plaintiff. clerk(fs)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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GREGORY L. FLETCHER,

Case No. 16-cv-03110-YGR (PR)

Plaintiff,
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ORDER OF DISMISSAL WITH LEAVE
TO AMEND

v.
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CORRECTIONAL OFFICER MENDEZ,
Defendant.

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I.

Plaintiff, a state prisoner currently incarcerated at Salinas Valley State Prison (“SVSP”),

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United States District Court
Northern District of California

INTRODUCTION

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filed a pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s complaint is now before

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the Court for review pursuant to 28 U.S.C. §1915A, along with his motion for leave to proceed in

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forma pauperis, which will be granted in a separate Order. Plaintiff seeks monetary damages as

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well as injunctive relief.
Venue is proper because the events giving rise to Plaintiff’s claims are alleged to have

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occurred at SVSP, which is located in this judicial district. See 28 U.S.C. § 1391(b).
The Court now reviews Plaintiff’s complaint pursuant to 28 U.S.C. §1915. For the reasons

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set forth below, the Court DISMISSES the complaint with leave to amend to correct certain

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deficiencies addressed below, and directs Plaintiff to provide sufficient information regarding the

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exhaustion of administrative remedies.

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II.

DISCUSSION

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A.

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims

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which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek

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monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se

Standard of Review

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pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th

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Cir. 1990).

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Liability may be imposed on an individual defendant under section 1983 if the plaintiff can
show that the defendant proximately caused the deprivation of a federally protected right. See

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Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Harris v. City of Roseburg, 664 F.2d 1121,

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1125 (9th Cir. 1981). A person deprives another of a constitutional right within the meaning of

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section 1983 if he does an affirmative act, participates in another’s affirmative act or omits to

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perform an act which he is legally required to do, that causes the deprivation of which the plaintiff

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complains. Leer, 844 F.2d at 633; Robins v. Meecham, 60 F.3d 1436, 1442 (9th Cir. 1995). To

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state a claim a plaintiff must show a specific constitutional or federal guarantee safeguarding the

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United States District Court
Northern District of California

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interests that have been invaded. See Paul v. Davis, 424 U.S. 693, 697 (1976).

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Although a plaintiff is not required to plead “specific factual details not ascertainable in

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advance of discovery,” Gibson v. United States, 781 F.2d 1334, 1340 (9th Cir. 1986), he does not

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state a claim under 42 U.S.C. § 1983 if the allegations in the complaint are mere conclusions,

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Kennedy v. H & M Landing, Inc., 529 F.2d 987, 989 (9th Cir. 1976); Fisher v. Flynn, 598 F.2d

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663, 665 (1st Cir. 1979). A complaint must contain sufficient allegations to put defendants fairly

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on notice of the claims against them. McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). A

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complaint that fails to state the specific acts of the defendant which violated the plaintiff’s rights

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fails to meet the notice requirements of Federal Rule of Civil Procedure 8(a). Hutchinson v.

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United States, 677 F.2d 1322, 1328 n.5 (9th Cir. 1982).

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Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the

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claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the

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statement need only ‘“give the defendant fair notice of what the . . . . claim is and the grounds

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upon which it rests.”’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). Although

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in order to state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff’s

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obligation to provide the ‘grounds of his ‘entitle[ment] to relief’ requires more than labels and

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conclusions, and a formulaic recitation of the elements of a cause of action will not do . . . .

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Factual allegations must be enough to raise a right to relief above the speculative level.” Bell
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Atlantic Corp. v. Twombly, 550 U.S. 544, 554-55 (2007) (citations omitted). A complaint must

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proffer “enough facts to state a claim to relief that is plausible on its face.” Id. at 570.

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B.

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Plaintiff’s pleading is too short on facts for the Court to determine whether any of his

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constitutional rights may have been violated. Plaintiff will be given leave to amend so that he may

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attempt to allege facts showing how his constitutional rights have been violated. Also, for each

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instance of a constitutional violation, Plaintiff should name each person who violated his

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constitutional rights, describe what each person did to violate his rights, state where the violation

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occurred, and when certain violations occurred, i.e., he has failed to indicate the exact date of the

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United States District Court
Northern District of California

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Legal Claims

alleged denial of medication.
In his amended complaint, Plaintiff must provide a more detailed description of his claims

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in order for the Court to determine whether enough is alleged to find the pleading adequate to state

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a claim for relief and require a response from Defendants.

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Plaintiff’s first possible claim involves an incident on January 11, 2016 in which he claims

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that his constitutional right to “freedom of religion” was violated. Dkt. 1 at 3.1 Specifically,

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Plaintiff, who claims to be a practicing Muslim, alleges that on that date, he was performing

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“fitra,” an act performed “every 40 days” by “all [M]uslims” in order to “to keep clean.” Id.

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Specifically, Plaintiff claims that “fitra” involved the shaving of his pubic hair. See id. at 8.

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Plaintiff further alleges that SVSP Correctional Officer L. Mendez, the sole Defendant in this

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action, “lied” on “the RVR,” which the Court assumes relates to the attached Rules Violation

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Report (“RVR”) log no. A16-01-0023 for the offense of “Indecent Exposure W/Masturbation.”

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Id. at 3, 9-16. The record shows that Plaintiff was eventually found “not guilty” of the

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aforementioned offense. Id. at 7-8. However, Plaintiff was instead found to be “in violation of

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having a razor in his possession,” but nothing in the record indicates that he received any form of

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“disciplinary action” for this violation aside from a “disciplinary chrono.” Id. at 8. The record

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Page number citations refer to those assigned by the Court’s electronic case management
filing system and not those assigned by Plaintiff.
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further shows that Plaintiff’s RVR log no. A16-01-0023 was “dismissed,” and the senior hearing

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officer requested that the “Records Department destroy all documentation regarding this report as

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well as any reports written in support of this disciplinary report.” Id. at 7.

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An inmate in California is entitled to due process before being disciplined when the

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discipline imposed will inevitably affect the duration of his sentence or causes an “atypical and

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significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v.

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Conner, 515 U.S. 472, 484, 487 (1995). The process due in such a prison disciplinary proceeding

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includes written notice, time to prepare for the hearing, a written statement of decision, allowance

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of witnesses and documentary evidence when not unduly hazardous, and aid to the accused where
the inmate is illiterate or the issues are complex. Wolff v. McDonnell, 418 U.S. at 564-7. Due

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United States District Court
Northern District of California

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process also requires that there be “some evidence” to support the disciplinary decision.

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Superintendent v. Hill, 472 U.S. 445 at 454. The Due Process Clause only requires that prisoners

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be afforded those procedures mandated by Wolff and its progeny; it does not require that a prison

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comply with its own, more generous procedures. See Walker v. Sumner, 14 F.3d 1415, 1419-20

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(9th Cir. 1994).

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Here, Plaintiff does not allege any cognizable due process violation. He does not allege

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that the senior hearing officer refused to allow him to present certain witnesses and evidence at his

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disciplinary hearing. Instead, as mentioned earlier, after the disciplinary hearing, Plaintiff was

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found not guilty and the RVR was dismissed.

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A second possible claim concerns the alleged denial of medication. However, Plaintiff

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merely claims that Defendant Mendez “violated the color of code of law by not letting [Plaintiff]

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out too [sic] get [his] medication.” Dkt. 1 at 4. Plaintiff does not describe what type of

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medication he required, nor does he specify how his health was severely harmed. Deliberate

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indifference to serious medical needs violates the Eighth Amendment’s proscription against cruel

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and unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976); McGuckin v. Smith, 974

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F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX Technologies, Inc. v. Miller,

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104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). A determination of “deliberate indifference”

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involves an examination of two elements: the seriousness of the prisoner’s medical need and the
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nature of the defendant’s response to that need. See McGuckin, 974 F.2d at 1059. Here, again,

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Plaintiff does not indicate why he needed the medication or how the denial of such medication

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affected his health. See id. The Court finds that Defendant Mendez’s alleged one-time refusal to

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allow Plaintiff access to his medication, at most, amounts to nothing more than negligence. See

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Farmer, 511 U.S. at 835-36 & n.4.

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A third possible claim is Plaintiff’s claim of retaliation. “Within the prison context, a
viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a

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state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected

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conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and

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(5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408

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United States District Court
Northern District of California

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F.3d 559, 567–68 (9th Cir. 2005) (footnote omitted). The plaintiff must show that the type of

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activity he was engaged in was protected by the First Amendment and that the protected conduct

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was a substantial or motivating factor for the alleged retaliatory acts. See Mt. Healthy City Bd. of

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Educ. v. Doyle, 429 U.S. 274, 287 (1977). Retaliation is not established simply by showing

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adverse activity by a defendant after protected speech; rather, the plaintiff must show a nexus

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between the two. See Huskey v. City of San Jose, 204 F.3d 893, 899 (9th Cir. 2000) (retaliation

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claim cannot rest on the logical fallacy of post hoc, ergo propter hoc, i.e., “after this, therefore

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because of this”). In the instant action, Plaintiff must provide more allegations regarding his

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retaliation claim. Simply stating that he felt that Defendant Mendez’s actions were “very racist all

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because [Plaintiff is] black,” and that “retaliation is what she is doing” is insufficient. See Dkt. 1

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at 4. Therefore, Plaintiff’s conclusory allegations of retaliation by Defendants fail to state a

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cognizable claim for relief. Plaintiff must allege that he engaged in constitutionally-protected

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conduct, that prison staff took adverse action against him in retaliation for the protected conduct,

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and that he suffered harm as a result of the retaliation.

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In sum, the Court finds that the above allegations fail to state a claim and this complaint

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will be dismissed but Plaintiff will be provided leave to amend to attempt to cure any deficiencies.

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The Court also finds that the complaint is deficient because it fails to provide sufficient

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information regarding the exhaustion of administrative remedies.2 See Dkt. 1 at 1-2. Accordingly,

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this Court has no choice but to dismiss the complaint with leave to amend.

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C.

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A prisoner must exhaust his administrative remedies for constitutional claims prior to

Exhaustion

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asserting them in a civil rights complaint. 42 U.S.C. § 1997e(a); McKinney v. Carey, 311 F.3d

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1198, 1199 (9th Cir. 2002). If a prisoner exhausts a claim after bringing it before the court, his

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subsequent exhaustion cannot excuse his earlier failure to exhaust. Vaden v. Summerhill, 449 F.3d

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1047, 1051 (9th Cir. 2006) (“[A prisoner] may initiate litigation in federal court only after the

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administrative process ends and leaves his grievances unredressed. It would be inconsistent with
the objectives of the statute to let him submit his complaint any earlier than that.”) When the

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United States District Court
Northern District of California

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district court concludes that the prisoner has not exhausted administrative remedies on a claim,

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“the proper remedy is dismissal of the claim without prejudice.” Wyatt v. Terhune, 315 F.3d,

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1108, 1120 (9th Cir. 2003) overruled on other grounds by Albino v. Baca, 747 F.3d 1162, 1166

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(9th Cir. 2014) (en banc). However, as mentioned above, Plaintiff failed to provide sufficient

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information regarding the exhaustion of administrative remedies. See Dkt. 1 at 1-2. Plaintiff

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merely checks the box “YES” next to the question “[D]id you present the facts in your complaint

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for review through the grievance procedure?” Id. at 1. When asked to further explain, he includes

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information on RVR log no. A16-01-0023 instead of listing the “date and result of the appeal at

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each level of review.” Id. at 1-2. He also merely checks the box “YES” next to the question “Is

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the last level to which you appealed the highest level of appeal available to you?” However,

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again, he does not give any information indicating that he pursued an appeal to the highest level of

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review. Such a vague and conclusory response is insufficient. Furthermore, Plaintiff has not

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alleged any extraordinary circumstances which might compel that he be excused from complying

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The Prison Litigation Reform Act of 1995 (“PLRA”) amended 42 U.S.C. § 1997e to
provide that “[n]o action shall be brought with respect to prison conditions under [42 U.S.C.
§ 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
Exhaustion is mandatory and no longer left to the discretion of the district court. Ross v. Blake,
136 S. Ct. 1850, 1856-58 (2016); Woodford v. Ngo, 548 U.S. 81, 84 (2006) (citing Booth v.
Churner, 532 U.S. 731, 739 (2001)).
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with PLRA’s exhaustion requirement. Cf. Booth, 532 U.S. at 741 n.6 (courts should not read

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“futility or other exceptions” into section 1997e(a)). During the same time frame that he amends

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his complaint, Plaintiff will be given an opportunity to provide sufficient information regarding

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the exhaustion of administrative remedies. Specifically, to avoid dismissal, Plaintiff needs to

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provide proof that extraordinary circumstances existed in order to excuse him from complying

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with PLRA’s exhaustion requirement. See e.g., Ross, 136 S. Ct. at 1859-60 (identifying “three

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kinds of circumstances in which an administrative remedy, although officially on the books, is not

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capable of use to obtain relief.”)

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III.

CONCLUSION
For the foregoing reasons, the Court orders as follows:

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United States District Court
Northern District of California

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1.

The complaint is DISMISSED WITH LEAVE TO AMEND, as indicated above,

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within twenty-eight (28) days of the date this Order is filed. The amended complaint must

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include the caption and civil case number used in this Order (C 16-3110 YGR (PR)) and the words

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

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replaces the prior pleadings, Plaintiff may not incorporate material from the prior pleadings by

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reference but must include in the amended complaint all the claims and allegations he wishes to

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present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Failure to amend within

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the designated time and in accordance with this Order will result in the dismissal of this

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action.

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2.

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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The Clerk of the Court shall send Plaintiff a blank civil rights complaint form along
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with his copy of this Order.
IT IS SO ORDERED.
Dated: January 11, 2017
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YVONNE GONZALEZ ROGERS
United States District Judge

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United States District Court
Northern District of California

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