Cobb v. Woodford et al

Filing 20

ORDER After Remand REOPENING CASE; Order of Partial Dismissal With Leave to Amend or Notify Court of Intent to Proceed With Original Complaint. Signed by Judge Ronald M. Whyte on 6/24/11. (jg, COURT STAFF) (Filed on 6/24/2011)

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*E-FILED - 6/24/11*

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JERRY L. COBB,
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Plaintiff,
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v.
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JEANNE WOODFORD, et al.,

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Defendants.

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No. C 06-6372 RMW (PR)
ORDER AFTER REMAND
RE-OPENING CASE; ORDER
OF PARTIAL DISMISSAL;
DISMISSAL WITH LEAVE
TO AMEND OR NOTIFY
COURT OF INTENT TO
PROCEED WITH ORIGINAL
COMPLAINT

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On September 7, 2006, plaintiff, proceeding pro se, filed a federal civil rights complaint

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pursuant to 42 U.S.C. § 1983 in the Southern District of California. On October 11, 2006, the

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case was transferred to this court. On July 3, 2008, in its initial screening review, the court

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dismissed the complaint, and entered judgment the same day. On March 18, 2011, the Ninth

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Circuit vacated the order of dismissal and judgment and remanded. For the reasons stated below,

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the court re-opens the case, orders the complaint partially dismissed, and grants plaintiff leave to

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amend. Alternatively, plaintiff shall file a notice that he intends to proceed only with the

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cognizable claim discussed below.

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DISCUSSION
A.

Standard of Review
A federal court must conduct a preliminary screening in any case in which a prisoner

Order After Remand Re-Opening Case; Order of Partial Dismissal; Dismissal with Leave to Amend or Notify Court of Intent to
Proceed with Original Complaint
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seeks redress from a governmental entity or officer or employee of a governmental entity. See

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

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

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seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. §

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1915A(b)(1), (2). Pro se pleadings must, however, be liberally construed. See Balistreri v.

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Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).

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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 (2) that

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the alleged violation was committed by a person acting under the color of state law. See West v.

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

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B.

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Plaintiff’s Claims
Plaintiff claims that in August 2003, he was issued a rules violation report (“RVR”)

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charging him with extortion. (Complaint at 1-2.) Plaintiff asserts that defendants fabricated and

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falsified investigative reports, and that the RVR and disciplinary hearing were based on those

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false statements. (Id. at 3.) In September 2003, defendants found plaintiff guilty of extortion.

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(Id., Ex. F.) Thereafter, plaintiff filed an administrative appeal, alleging that the proceeding

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violated his right to due process and specific California regulations. (Id., Ex. G.) At the

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Director’s level of review, plaintiff’s appeal was partially granted. The Director’s response

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vacated the guilty finding, and directed that plaintiff be re-charged instead with bribery. (Id. at

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5, Ex. J.) Before the RVR re-issued, plaintiff alleges that he was transferred to a more restrictive

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facility based on his pursuit of administrative appeals. (Id. at 4-5.) On April 22, 2004, plaintiff

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was charged with bribery, as directed by the Director’s level of review. (Id. at 5.) On May 25,

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2004, plaintiff was found not guilty of bribery, and the RVR was dismissed. (Id. at 5-6, Ex. K.)

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Plaintiff claims while he was pursuing his administrative remedies, defendants retaliated

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against him by transferring him to a more restrictive facility. Even though disciplinary transfers

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without due process are generally permissible, prison officials cannot transfer a prisoner from

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one correctional institution to another in order to punish him for exercising his constitutional

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rights. See Schroeder v. McDonald, 55 F.3d 454, 461 (9th Cir. 1995). Thus, liberally construed,
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plaintiff states a cognizable claim for relief.
Plaintiff also alleges that the disciplinary proceeding deprived him of due process,

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freedom of movement/association, access to courts, and violated his right to be free from cruel

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and unusual punishment. (Complaint at 3-5.) Plaintiff’s claim that he was denied freedom of

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movement/association is DISMISSED with leave to amend. Plaintiff fails to provide any factual

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allegations to support such a claim.

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Plaintiff also alleges that he was denied access to the courts. However, to establish a

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claim for any violation of the right of access to the courts, the prisoner must prove that there was

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an inadequacy in the prison’s legal access program that caused him an actual injury. See Lewis

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v. Casey, 518 U.S. 343, 350-55 (1996). To prove an actual injury, the prisoner must show that

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the inadequacy in the prison’s program hindered his efforts to pursue a non-frivolous claim

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through the initiation of a court action concerning his conviction or conditions of confinement.

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See id. at 354-55. Plaintiff fails to provide any factual allegations to support such a claim.

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Plaintiff’s access to courts claim is DISMISSED with leave to amend.

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Plaintiff also claims that the disciplinary proceeding violated his right to be free from

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cruel and unusual punishment. A prison official violates the Eighth Amendment when two

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requirements are met: (1) the deprivation alleged must be, objectively, sufficiently serious,

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Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citing Wilson v. Seiter, 501 U.S. 294, 298

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(1991)), and (2) the prison official possesses a sufficiently culpable state of mind, id. (citing

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Wilson, 501 U.S. at 297). Plaintiff fails to provide any factual allegations to support such a

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claim. Plaintiff’s claim that defendants violated his right to be free from cruel and unusual

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punishment is DISMISSED with leave to amend.

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Finally, plaintiff alleges that the disciplinary proceeding deprived him of due process. To

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the extent plaintiff means that defendants filed false charges against him, this fails to state a

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claim because a prisoner has no constitutionally guaranteed immunity from being falsely or

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wrongly accused of conduct which may result in the deprivation of a protected liberty interest.

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Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989). The Fourteenth Amendment entitles a

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prisoner to certain due process protections when he is charged with a disciplinary violation,
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including the right to call witnesses. See Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir.

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2003) (citing Wolff v. McDonnell, 418 U.S. 539, 564-71 (1974)). However, these protections

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only attach when the disciplinary action implicates a prisoner’s protected liberty interest.

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Serrano, 345 F.3d at 1078.

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Interests protected by the Due Process Clause may arise from two sources -- the Due

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Process Clause itself and laws of the states. See Meachum v. Fano, 427 U.S. 215, 223-27

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

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manner implicate the Due Process Clause itself, whether or not they are authorized by state law.

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

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less severe or more closely related to the expected terms of confinement may also amount to

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deprivations of a procedurally protected liberty interest, provided that (1) state statutes or

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

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

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id. 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 of

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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. If the deprivation is one of “real substance,” Wolff’s procedural

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protections must be afforded.

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Plaintiff has not alleged any specific harm that resulted from the disciplinary decision,

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and fails to provide any factual allegations to support such a claim. Plaintiff’s claim that

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defendants violated his right to due process is DISMISSED with leave to amend.

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Accordingly, the court grants plaintiff leave to file an amended complaint within thirty

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(30) days of the date this order is filed, to address the deficiencies set forth above if he can do so

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in good faith. In the alternative, within thirty (30) days of the date this order is filed, plaintiff

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may file a notice with the court stating that he intends to proceed only with the cognizable

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retaliation claim in this original complaint. Because an amended complaint completely replaces

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the original complaint, plaintiff must include in it all the claims he wishes to present. See Ferdik

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v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).
Order After Remand Re-Opening Case; Order of Partial Dismissal; Dismissal with Leave to Amend or Notify Court of Intent to
Proceed with Original Complaint
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CONCLUSION

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For the foregoing reasons, the court hereby orders as follows:

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The clerk shall RE-OPEN this case.

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2.

Plaintiff shall file an amended complaint within thirty (30) days from the date

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this order is filed. In the alternative, within thirty (30) days from the date this order is filed,

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plaintiff may file a notice with the court stating that he intends to proceed with the one

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cognizable claim as found by the court.

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An amended complaint must include the caption and civil case number used in this order

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(C 06-6372 RMW (PR)) and the words “AMENDED COMPLAINT” on the first page. Plaintiff

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is advised that an amended complaint supersedes the original complaint. “[A] plaintiff waives

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all causes of action alleged in the original complaint which are not alleged in the amended

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complaint.” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981). Defendants not

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named in an amended complaint are no longer defendants. See Ferdik, 963 F.2d at 1262 (9th

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Cir. 1992).

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Plaintiff may not incorporate material from the original complaint, such as supporting

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documentation or exhibits, by reference. Plaintiff must include all of his claims, including the

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cognizable claims set forth above, in the amended complaint. Failure to file an amended

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complaint or file a notice with the court in compliance with this order within the

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designated time will result in the court proceeding with the cognizable claim in the original

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complaint as stated in this order.

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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 “Notice

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of Change of Address,” and must comply with the court’s orders in a timely fashion. Failure

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to do so may result in the dismissal of this action for failure to prosecute pursuant to Federal

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Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.
6/24/11
DATED:

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RONALD M. WHYTE
United States District Judge
Order After Remand Re-Opening Case; Order of Partial Dismissal; Dismissal with Leave to Amend or Notify Court of Intent to
Proceed with Original Complaint
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