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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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 GARY MCCOY, 11 Plaintiff, 12 v. 13 LYNN CLARKE, et al., 14 Defendants. 15 ) ) ) ) ) ) ) ) ) ) No. C 11-5394 LHK (PR) ORDER OF DISMISSAL 16 Plaintiff, a state prisoner at Corcoran State Prison, proceeding pro se, filed a pro se civil 17 rights complaint pursuant to 42 U.S.C. § 1983 seeking damages for alleged constitutional 18 violations. His motion to proceed in forma pauperis is granted in a separate order. For the 19 reasons stated below, Plaintiff’s complaint is DISMISSED. 20 DISCUSSION 21 A. Standard of Review 22 A federal court must conduct a preliminary screening in any case in which a prisoner 23 seeks redress from a governmental entity or officer or employee of a governmental entity. See 24 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss 25 any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or 26 seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 27 1915A(b)(1), (2). Pro se pleadings must, however, be liberally construed. See Balistreri v. 28 Order of Dismissal G:\PRO-SE\SJ.LHK\CR.11\McCoy394dis.wpd 1 Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988). 2 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 3 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that 4 the alleged violation was committed by a person acting under the color of state law. See West v. 5 Atkins, 487 U.S. 42, 48 (1988). 6 B. 7 Legal Claims Plaintiff claims that on June 14, 2010, Defendant Lynn Clarke authored a Custodial 8 Chrono (“CDC 128-A”), which stated that Clarke believed Plaintiff to be a threat to the safety 9 and security of Pelican Bay State Prison, as well as a “staff manipulator.” (Compl. Ex. A.) 10 Plaintiff also sues Paul Wittenmeir, Laundry Supervisor II, because he “rubber stamped” 11 Plaintiff’s administrative appeal. Plaintiff argues that Defendants violated his right to due 12 process because he was not given the opportunity to defend against the accusation. Plaintiff also 13 asserts that Clarke’s statements constituted libel, slander, and perjury. 14 Plaintiff fails to state a cognizable claim upon which relief may be granted. First, 15 interests protected by the Due Process Clause may arise from two sources -- the Due Process 16 Clause itself and laws of the states. See Meachum v. Fano, 427 U.S. 215, 223-27 (1976). 17 Changes in conditions so severe as to affect the sentence imposed in an unexpected manner 18 implicate the Due Process Clause itself, whether or not they are authorized by state law. See 19 Sandin v. Conner, 515 U.S. 472, 484 (1995). Deprivations authorized by state law that are less 20 severe or more closely related to the expected terms of confinement may also amount to 21 deprivations of a procedurally protected liberty interest, provided that (1) state statutes or 22 regulations narrowly restrict the power of prison officials to impose the deprivation, i.e., give the 23 inmate a kind of right to avoid it, and (2) the liberty in question is one of “real substance.” See 24 id. at 477-87. Generally, “real substance” will be limited to freedom from (1) a restraint that 25 imposes “atypical and significant hardship on the inmate in relation to the ordinary incidents of 26 prison life,” id. at 484, or (2) state action that “will inevitably affect the duration of [a] 27 sentence,” id. at 487. 28 In determining whether a restraint is an “atypical and significant hardship,” Sandin Order of Dismissal G:\PRO-SE\SJ.LHK\CR.11\McCoy394dis.wpd 2 1 suggests that courts should consider whether the challenged condition mirrored the conditions 2 imposed on inmates in administrative segregation and protective custody, and thus comported 3 with the prison’s discretionary authority; the duration of the condition; the degree of restraint 4 imposed; and whether the discipline will invariably affect the duration of the prisoner’s sentence. 5 See Serrano, 345 F.3d at 1078; Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003). 6 Only if the answer is yes to both prongs of this inquiry does the state statutory provision 7 create a liberty interest entitled to procedural due process. See, e.g., Myron v. Terhune, 476 F.3d 8 716, 718-19 (9th Cir. 2007) (classification for California Level IV prison rather than Level III 9 prison not shown to be an atypical and significant hardship; refusal to allow prisoner to publish 10 and distribute an inmate publication not an atypical and significant deprivation); Mitchell v. 11 Dupnik, 75 F.3d 517, 523 (9th Cir. 1996) (violation of jail regulation that provides for inmates to 12 be present when their legal papers are searched does not involve dramatic departure from basic 13 conditions of incarceration, even for pretrial detainees, sufficient to create liberty interest); 14 Mujahid v. Meyer, 59 F.3d 931, 932 (9th Cir. 1995) (despite prior case law determining 15 disciplinary regulations created liberty interest, under Sandin no liberty interest when inmate was 16 placed in disciplinary segregation for 14 days). Only then must the Court determine what 17 process is due. 18 Here, Plaintiff complains that the CDC 128-A Custodial Chrono was issued in a manner 19 that violated the CDCR’s own procedure, as well as the constitution. However, Plaintiff does 20 not assert that the CDC 128-A Custodial Chrono affected his sentence in any way. Nor is there 21 any indication that there is any state statute or regulation that narrowly restricted the power of 22 prison officials to impose the deprivation at issue here. In addition, even assuming a statute or 23 regulation existed to give rise to a liberty interest, the liberty in question is not one of “real 24 substance.” See 15 Cal. Code Regs. § 3312(a)(2) (discussing a CDC Form 128-A as a “custodial 25 counseling chrono” used for minor misconduct that needs documentation). Thus, even liberally 26 construed, Plaintiff’s allegation does not implicate a protected liberty interest. Because he does 27 there is no liberty interest, Plaintiff is not entitled to any federal due process procedure, and he 28 fails to state a federal due process claim. Order of Dismissal G:\PRO-SE\SJ.LHK\CR.11\McCoy394dis.wpd 3 1 Second, libel and slander do not violate the Constitution. See Paul v. Davis, 424 U.S. 2 693, 699-701 (1976) (defamation not actionable under section 1983); Hernandez v. Johnston, 3 833 F.2d 1316, 1319 (9th Cir. 1987) (libel and slander claims precluded by Paul). Here, even 4 liberally construed, under the circumstances alleged, Plaintiff has not alleged facts sufficient to 5 entitle him to relief for a civil rights violation. 6 Finally, in general, no civil action lies for damages resulting from false statements made 7 under oath. See, e.g., Ting v. United States, 927 F.2d 1504, 1515 (9th Cir. 1991), citing Agnew v. 8 Parks, 172 Cal. App. 2d 756 (1959)) (“a civil action for damages for injuries arising from false 9 testimony or perjury is not recognized in California”). 10 11 Thus, the Court concludes Plaintiff has failed to state a claim. Further, for the reasons stated above, leave to amend would be futile. 12 13 14 15 16 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 17 18 19 20 21 22 23 24 25 26 27 28 Order of Dismissal G:\PRO-SE\SJ.LHK\CR.11\McCoy394dis.wpd 4

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