Larson v. Cate et al

Filing 10

ORDER OF PARTIAL DISMISSAL; ORDER OF SERVICE; DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION. Signed by Judge Lucy H. Koh on 1/7/13. (Attachments: # 1 Certificate/Proof of Service)(mpb, COURT STAFF) (Filed on 1/8/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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RICHARD TERRY LARSON,

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Plaintiff,

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vs.

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M. CATE, et al.,
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Defendants.
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No. C 12-3773 LHK (PR)
ORDER OF PARTIAL
DISMISSAL; ORDER OF
SERVICE; DIRECTING
DEFENDANTS TO FILE
DISPOSITIVE MOTION OR
NOTICE REGARDING SUCH
MOTION

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Plaintiff, a California state prisoner proceeding pro se, filed a civil rights action under 42
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U.S.C. § 1983. Plaintiff is granted leave to proceed in forma pauperis in a separate order. For
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the reasons stated below, the Court dismisses the complaint in part, and orders service upon
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named Defendants.
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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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Order of Partial Dismissal; Order of Service; Directing Defendants to File Dispositive Motion or Notice Regarding
Such Motion
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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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B.

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Legal Claims
According to the complaint, at some point, Plaintiff’s criminal history records reflected

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that he was found to have engaged in arson and violence. Plaintiff alleges that Defendant

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Correctional Counselor I (“CCI”) M. Creamer-Todd informed him that this determination made

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Plaintiff ineligible to participate in the “milestones” time credit program. Because of CCI

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Creamer-Todd’s statement, on June 19, 2011, Plaintiff requested a transfer to a different

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counselor. In Plaintiff’s administrative appeal, he referred to CCI Creamer-Todd’s responses as

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“bizarre” and “bovine.” Plaintiff’s request for a transfer was ultimately denied. Subsequently,

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CCI Creamer-Todd issued a rules violation report against Plaintiff for being disrespectful toward

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staff because Plaintiff’s used the terms “bizarre” and “bovine” in referring to CCI Creamer-

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Todd. On September 6, 2011, Defendant Lt. J.M. Biggs found Plaintiff guilty of being

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disrespectful toward staff, and forfeited 20 days of credit. Defendant Appeals Coordinator S.

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Lacy and Third Level Appeals Examiner B. Forsterer both denied Plaintiff’s subsequent

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administrative appeals. Liberally construed, Plaintiff has stated a cognizable claim that

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Defendants CCI Creamer-Todd, Lt. Biggs, Appeals Coordinator Lacy, and Appeals Examiner

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Forsterer violated his First Amendment rights.

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Although Plaintiff states that he is also raising a claim of cruel and unusual punishment,

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the Court disagrees. Although the Eighth Amendment protects against cruel and unusual

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punishment, this does not mean that federal courts can or should interfere whenever prisoners are

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inconvenienced or suffer de minimis injuries. See, e.g., Hudson v. McMillian, 503 U.S. 1, 9-10

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(1992) (Eighth Amendment excludes from constitutional recognition de minimis uses of force);

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Anderson v. County of Kern, 45 F.3d 1310, 1314-15 (9th Cir. 1995) (temporary placement in

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safety cell that was dirty and smelled bad did not constitute infliction of pain); Hernandez v.

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Denton, 861 F.2d 1421, 1424 (9th Cir. 1988) (allegation that inmate slept without mattress for

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Order of Partial Dismissal; Order of Service; Directing Defendants to File Dispositive Motion or Notice Regarding
Such Motion
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one night is insufficient to state Eighth Amendment violation and no amendment can alter that

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deficiency). Here, liberally construed, Plaintiff’s complaint does not demonstrate either that he

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suffered a deprivation of a basic necessity, much less that the deprivation was sufficiently

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serious, or that the Defendants possessed a culpable state of mind. See Farmer v. Brennan, 511

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U.S. 825, 834 (1994). Accordingly, Plaintiff’s Eighth Amendment claim is DISMISSED. If

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Plaintiff believes in good faith that he can cure the deficiencies described above, he may amend

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his complaint to include such a claim.

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Plaintiff also names as Defendants CCI L. Webb and Correctional Counselor II (“CCII”)
G. Metcalfe. Regarding CCI Webb, Plaintiff merely proffers in a conclusory manner that CCI

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Webb was responsible for noting in Plaintiff’s criminal history that Plaintiff was involved in

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arson and violence. Even if Plaintiff’s facts were more specific, the inaccuracy of records

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compiled or maintained by the government is not, standing alone, sufficient to state a claim of

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constitutional injury under the Due Process Clause. See Paul v. Davis, 424 U.S. 693, 711-714

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(1976). Moreover, although California has created regulations from which a protected interest in

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accurate criminal records could arise, the statutory language of California Penal Code § 13324 --

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the statute creating the right to accurate criminal records -- does not narrowly restrict the power

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of prison officials to impose a deprivation of accurate records. Because the statute involved does

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not meet the requirements of Sandin v. Conner, 515 U.S. 472, 484 (1995), Plaintiff fails to state a

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claim. Thus, Plaintiff claim that his criminal history is inaccurate is DISMISSED with

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prejudice, and Defendant CCI L. Webb is DISMISSED without prejudice.

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Regarding Defendant CCII Metcalfe, Plaintiff links him to reviewing and agreeing with

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the denial of Plaintiff’s request to transfer to a different counselor. Even at the pleading stage,

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“[a] plaintiff must allege facts, not simply conclusions, that show that an individual was

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personally involved in the deprivation of his civil rights.” Barren v. Harrington, 152 F.3d 1193,

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1194 (9th Cir. 1998). Plaintiff’s allegations against CCII Metcalfe are insufficient. “[A]

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

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

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Order of Partial Dismissal; Order of Service; Directing Defendants to File Dispositive Motion or Notice Regarding
Such Motion
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do. . . . Factual allegations must be enough to raise a right to relief above the speculative level.”

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Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 553-56 (2007) (citations omitted). Plaintiff’s

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allegations against CCII Metcalfe does not demonstrate that he participated in any violation of

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Plaintiff’s constitutional rights. Accordingly, Defendant CCII Metcalfe is DISMISSED. If

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Plaintiff believes in good faith that he can cure the deficiencies described above, he may amend

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his complaint to include Defendant CCII Metcalfe.

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Plaintiff also names Secretary M. Cate in the caption of his complaint. However,

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Secretary Cate is not mentioned in the substance of the complaint, and Plaintiff fails to link

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Secretary Cate to any cognizable violation. Liability under Section 1983 arises only upon a

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showing of personal participation by the defendant. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.

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1989). Usually, a Section 1983 plaintiff names as a defendant the individual state actor who

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allegedly wronged him. If Plaintiff wishes to keep Defendant Cate, he should link Defendant

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Cate to a relevant claim by explaining what Defendant Cate did or failed to do that caused a

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violation of Plaintiff’s constitutional rights. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir.

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1988). Accordingly, Defendant Secretary Cate is DISMISSED. If Plaintiff believes in good

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faith that he can cure the deficiencies described above, he may amend his complaint to include

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Defendant Secretary Cate.

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Plaintiff also lists “Doe” Defendants. Although the use of “John Doe” to identify a

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defendant is not favored in the Ninth Circuit, see Gillespie v. Civiletti, 629 F.2d 637, 642 (9th

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Cir. 1980), situations may arise where the identity of alleged defendants cannot be known prior

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to the filing of a complaint. In such circumstances, the plaintiff should be given an opportunity

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through discovery to identify the unknown defendants, unless it is clear that discovery would not

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uncover their identities or that the complaint should be dismissed on other grounds. See id.

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Should Plaintiff discover the identities of the Doe Defendants, he may move to amend his

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complaint to include them in this action at a later date.

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CONCLUSION
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Plaintiff’s claim that his criminal history is inaccurate is DISMISSED with

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Order of Partial Dismissal; Order of Service; Directing Defendants to File Dispositive Motion or Notice Regarding
Such Motion
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prejudice. Defendants Secretary Cate, CCI Webb, and CCII Metcalfe are DISMISSED with

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leave to amend. Plaintiff’s Eighth Amendment claim is DISMISSED with leave to amend.

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If Plaintiff believes he can cure the above-mentioned deficiencies in good faith, Plaintiff

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shall file an AMENDED COMPLAINT within thirty days from the date this order is filed to

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cure the deficiencies described above. The amended complaint must include the caption and

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civil case number used in this order (C 12-3773 LHK (PR)) and the words AMENDED

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COMPLAINT on the first page. Plaintiff may not incorporate material from the prior complaint

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by reference. Failure to file an amended complaint within thirty days and in accordance

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with this order will result in the Court proceeding only with the cognizable claims as found

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in this Order.
Plaintiff is advised that an amended complaint supersedes the original complaint. “[A]

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

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amended complaint.” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981).

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Defendants not named in an amended complaint are no longer defendants. See Ferdik v.

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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).

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2.

The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of

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Service of Summons, two copies of the Waiver of Service of Summons, a copy of the complaint

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and all attachments thereto (docket no. 1), and a copy of this Order to CCI M. Creamer-Todd,

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Appeals Coordinator S. Lacy, and Correctional Security Lieutenant J.M. Biggs at Central

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Training Facility in Soledad, and Third Level Appeals Examiner B. Forsterer at the Office

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of Appeals in Sacramento.

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The Clerk of the Court shall also mail a courtesy copy of the complaint and a copy of this

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Order to the California Attorney General’s Office. Additionally, the Clerk shall mail a copy of

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this Order to Plaintiff.

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3.

Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure

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requires them to cooperate in saving unnecessary costs of service of the summons and complaint.

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Pursuant to Rule 4, if Defendants, after being notified of this action and asked by the Court, on

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Order of Partial Dismissal; Order of Service; Directing Defendants to File Dispositive Motion or Notice Regarding
Such Motion
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behalf of Plaintiff, to waive service of the summons, fail to do so, they will be required to bear

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the cost of such service unless good cause be shown for their failure to sign and return the waiver

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form. If service is waived, this action will proceed as if Defendants had been served on the date

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that the waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendants will not be required

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to serve and file an answer before sixty (60) days from the date on which the request for waiver

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was sent. (This allows a longer time to respond than would be required if formal service of

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summons is necessary.) Defendants are asked to read the statement set forth at the bottom of the

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waiver form that more completely describes the duties of the parties with regard to waiver of

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service of the summons. If service is waived after the date provided in the Notice but before

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Defendants have been personally served, the Answer shall be due sixty (60) days from the date

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on which the request for waiver was sent or twenty (20) days from the date the waiver form is

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filed, whichever is later.

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4.

No later than ninety (90) days from the date of this Order, Defendants shall file a

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motion for summary judgment or other dispositive motion with respect to the cognizable claims

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in the complaint.

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a.

If Defendants elect to file a motion to dismiss on the grounds that Plaintiff

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failed to exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a),

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Defendants shall do so in an unenumerated Rule 12(b) motion pursuant to Wyatt v. Terhune, 315

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F.3d 1108, 1119-20 (9th Cir. 2003).

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b.

Any motion for summary judgment shall be supported by adequate factual

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documentation and shall conform in all respects to Rule 56 of the Federal Rules of Civil

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Procedure. Defendants are advised that summary judgment cannot be granted, nor

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qualified immunity found, if material facts are in dispute. If Defendants are of the opinion

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that this case cannot be resolved by summary judgment, they shall so inform the Court

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prior to the date the summary judgment motion is due.

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5.

Plaintiff’s opposition to the dispositive motion shall be filed with the Court and

served on Defendants no later than twenty-eight (28) days from the date Defendants’ motion is

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Order of Partial Dismissal; Order of Service; Directing Defendants to File Dispositive Motion or Notice Regarding
Such Motion
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filed. Plaintiff is advised to read Rule 56 of the Federal Rules of Civil Procedure and

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Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment must

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come forward with evidence showing triable issues of material fact on every essential element of

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his claim).

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Defendants shall file a reply brief no later than fourteen (14) days after

Plaintiff’s opposition is filed.
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The motion shall be deemed submitted as of the date the reply brief is due. No

hearing will be held on the motion unless the Court so orders at a later date.
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All communications by the Plaintiff with the Court must be served on Defendants

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or Defendants’ counsel, by mailing a true copy of the document to Defendants or Defendants’

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counsel.

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9.

Discovery may be taken in accordance with the Federal Rules of Civil Procedure.

No further Court order is required before the parties may conduct discovery.
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It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court

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and all parties informed of any change of address and must comply with the Court’s orders in a

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timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute

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pursuant to Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.
DATED:

1/7/13
LUCY H. KOH
United States District Judge

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Order of Partial Dismissal; Order of Service; Directing Defendants to File Dispositive Motion or Notice Regarding
Such Motion
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