McCoy v. Clarke et al

Filing 10

ORDER OF DISMISSAL. Signed by Judge Lucy H. Koh on 4/9/12. (Attachments: # 1 certificate of mailing)(mpb, COURT STAFF) (Filed on 4/9/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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GARY MCCOY,
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Plaintiff,
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v.
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LYNN CLARKE, et al.,
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Defendants.
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No. C 11-5394 LHK (PR)
ORDER OF DISMISSAL

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Plaintiff, a state prisoner at Corcoran State Prison, proceeding pro se, filed a pro se civil
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rights complaint pursuant to 42 U.S.C. § 1983 seeking damages for alleged constitutional
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violations. His motion to proceed in forma pauperis is granted in a separate order. For the
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reasons stated below, Plaintiff’s complaint is DISMISSED.
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DISCUSSION
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A.

Standard of Review

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A federal court must conduct a preliminary screening in any case in which a prisoner
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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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Order of Dismissal
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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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Legal Claims
Plaintiff claims that on June 14, 2010, Defendant Lynn Clarke authored a Custodial

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Chrono (“CDC 128-A”), which stated that Clarke believed Plaintiff to be a threat to the safety

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and security of Pelican Bay State Prison, as well as a “staff manipulator.” (Compl. Ex. A.)

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Plaintiff also sues Paul Wittenmeir, Laundry Supervisor II, because he “rubber stamped”

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Plaintiff’s administrative appeal. Plaintiff argues that Defendants violated his right to due

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process because he was not given the opportunity to defend against the accusation. Plaintiff also

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asserts that Clarke’s statements constituted libel, slander, and perjury.

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Plaintiff fails to state a cognizable claim upon which relief may be granted. First,

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

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Clause itself and laws of the states. See Meachum v. Fano, 427 U.S. 215, 223-27 (1976).

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Changes in conditions so severe as to affect the sentence imposed in an unexpected manner

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

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

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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.

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In determining whether a restraint is an “atypical and significant hardship,” Sandin
Order of Dismissal
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suggests that courts should consider whether the challenged condition mirrored the conditions

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imposed on inmates in administrative segregation and protective custody, and thus comported

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with the prison’s discretionary authority; the duration of the condition; the degree of restraint

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imposed; and whether the discipline will invariably affect the duration of the prisoner’s sentence.

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See Serrano, 345 F.3d at 1078; Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003).

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Only if the answer is yes to both prongs of this inquiry does the state statutory provision

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create a liberty interest entitled to procedural due process. See, e.g., Myron v. Terhune, 476 F.3d

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716, 718-19 (9th Cir. 2007) (classification for California Level IV prison rather than Level III

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prison not shown to be an atypical and significant hardship; refusal to allow prisoner to publish

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and distribute an inmate publication not an atypical and significant deprivation); Mitchell v.

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Dupnik, 75 F.3d 517, 523 (9th Cir. 1996) (violation of jail regulation that provides for inmates to

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be present when their legal papers are searched does not involve dramatic departure from basic

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conditions of incarceration, even for pretrial detainees, sufficient to create liberty interest);

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Mujahid v. Meyer, 59 F.3d 931, 932 (9th Cir. 1995) (despite prior case law determining

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disciplinary regulations created liberty interest, under Sandin no liberty interest when inmate was

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placed in disciplinary segregation for 14 days). Only then must the Court determine what

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process is due.

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Here, Plaintiff complains that the CDC 128-A Custodial Chrono was issued in a manner

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that violated the CDCR’s own procedure, as well as the constitution. However, Plaintiff does

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not assert that the CDC 128-A Custodial Chrono affected his sentence in any way. Nor is there

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any indication that there is any state statute or regulation that narrowly restricted the power of

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prison officials to impose the deprivation at issue here. In addition, even assuming a statute or

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regulation existed to give rise to a liberty interest, the liberty in question is not one of “real

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substance.” See 15 Cal. Code Regs. § 3312(a)(2) (discussing a CDC Form 128-A as a “custodial

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counseling chrono” used for minor misconduct that needs documentation). Thus, even liberally

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construed, Plaintiff’s allegation does not implicate a protected liberty interest. Because he does

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there is no liberty interest, Plaintiff is not entitled to any federal due process procedure, and he

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fails to state a federal due process claim.
Order of Dismissal
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Second, libel and slander do not violate the Constitution. See Paul v. Davis, 424 U.S.

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693, 699-701 (1976) (defamation not actionable under section 1983); Hernandez v. Johnston,

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833 F.2d 1316, 1319 (9th Cir. 1987) (libel and slander claims precluded by Paul). Here, even

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liberally construed, under the circumstances alleged, Plaintiff has not alleged facts sufficient to

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entitle him to relief for a civil rights violation.

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Finally, in general, no civil action lies for damages resulting from false statements made

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under oath. See, e.g., Ting v. United States, 927 F.2d 1504, 1515 (9th Cir. 1991), citing Agnew v.

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Parks, 172 Cal. App. 2d 756 (1959)) (“a civil action for damages for injuries arising from false

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testimony or perjury is not recognized in California”).

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Thus, the Court concludes Plaintiff has failed to state a claim. Further, for the reasons
stated above, leave to amend would be futile.

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CONCLUSION
The Court DISMISSES this action with prejudice for failure to state a claim. The Clerk
shall close the file.
IT IS SO ORDERED.
DATED:

4/9/12
LUCY H. KOH
United States District Judge

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Order of Dismissal
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