Diaz v. Binkele et al

Filing 7

ORDER OF DISMISSAL WITH LEAVE TO AMEND. The complaint is DISMISSED with leave to amend. Within twenty-eight (28) days of the date this order is filed, Plaintiff shall file an amended complaint using the court's form complaint. The amended compla int must include the caption and civil case number used in this order and the words "AMENDED COMPLAINT" on the first page and write in the case number for this action, Case No. C 12-05898 EJD (PR). Plaintiff must answer all the questions on the form in order for the action to proceed. Failure to respond in accordance with this order by filing an amended complaint will result in the dismissal of this action without prejudice and without further notice to Plaintiff. The Clerk shall inclu de two copies of the court's complaint with a copy of this order to Plaintiff. Amended Complaint due by 2/26/2013. Signed by Judge Edward J. Davila on 1/28/2013. (Attachments: # 1 Blank Pro Se Habeas Complaint)(ecg, COURT STAFF) (Filed on 1/29/2013) (Additional attachment(s) added on 1/29/2013: # 2 Copy of Order with Judge's Signature) (ecg, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ENRIQUE DIAZ,
Plaintiff,

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vs.

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R. BINKELE, et al.,
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Defendants.
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No. C 12-05898 EJD (PR)

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ORDER OF DISMISSAL WITH LEAVE
TO AMEND

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Plaintiff, a state prisoner at Salinas Valley State Prison, filed the instant civil rights

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action in pro se pursuant to 42 U.S.C. § 1983. Plaintiff’s motion for leave to proceed in

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forma pauperis will be granted in a separate written order.
DISCUSSION

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A.

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

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prisoner seeks redress from a governmental entity or officer or employee of a

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governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify

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any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a

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claim upon which relief may be granted or seek monetary relief from a defendant who is

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immune from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be
Dismissal with leave to amend
05898Diaz_dwlta.wpd

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

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1988).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

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elements: (1) that a right secured by the Constitution or laws of the United States was

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violated, and (2) that the alleged violation was committed by a person acting under the

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color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

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B.

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Plaintiff’s Claims
This case involves Plaintiff’s desire for a classification status that will provide him

a single cell without a cellmate. Plaintiff alleges the only way to insure a single cell

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classification is to murder one’s cellmate or be the victim of an in-cell assault. Plaintiff

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filed inmate appeals regarding this situation and the appeals were denied. Plaintiff then

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wrote a letter to the warden saying he was having thoughts of killing his cellmate. As a

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result of the threat, Plaintiff was placed in the Administrative Housing Unit (AHU).

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Plaintiff argues that being punished and placed in the AHU for threatening to kill his

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cellmate violates his right to freedom of expression. Later Plaintiff began a hunger strike

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and was again placed in the AHU. However, it is not entirely clear the relief Plaintiff

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seeks. Plaintiff states his freedom of speech rights were violated, but he does not state if

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he wants money damages or even that he seeks injunctive relief with respect to a single

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cell. Regardless, the complaint will be dismissed with leave to amend as Plaintiff’s has

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failed to set forth a cognizable claim.

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The Supreme Court has long recognized that “(l)awful incarceration brings about

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the necessary withdrawal or limitation of many privileges and rights, a retraction justified

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by the considerations underlying our penal system.” Price v. Johnston, 334 U.S. 266, 285

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(1948); see also Pell v. Procunier, 417 U.S. 817, 822 (1974); Wolff v. McDonnell, 418

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U.S. 539, 555 (1974). “The fact of confinement and the needs of the penal institution

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impose limitations on constitutional rights, including those derived from the First

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Amendment, which are implicit in incarceration.” Jones v. North Carolina Prisoners'

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Labor Union Inc., 433 U.S. 119, 125 (1977). As stated in Pell, 417 U.S. at 822:
Dismissal with leave to amend
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(A) prison inmate retains those First Amendment rights that are not
inconsistent with his status as a prisoner or with the legitimate penological
objectives of the corrections system. Thus, challenges to prison restrictions
that are asserted to inhibit First Amendment interests must be analyzed in
terms of the legitimate policies and goals of the corrections system, to
whose custody and care the prisoner has been committed in accordance
with due process of law.

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Removing Plaintiff from his cell and placing him in the AHU after he threatened to

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kill his cellmate was a reasonable and wise decision on behalf of prison officials and

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preventing an inmate from killing his cellmate is a legitimate penological objective.

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Thus, Plaintiff has failed to demonstrate a First Amendment violation. Moreover,

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Plaintiff has no right to a certain classification status that will entitle him to a single cell.

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See Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir.1987) (quoting Moody v.

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Daggett, 429 U.S. 78, 88 n. 9 (1976), wherein the Supreme Court, in a footnote, explicitly

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rejected a claim that “prisoner classification and eligibility for rehabilitative programs in

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the federal system” invoked due process protections).

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CONCLUSION

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For the foregoing reasons, the Court orders as follows:

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The complaint is DISMISSED with leave to amend. Within twenty-eight (28)

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days of the date this order is filed, Plaintiff shall file an amended complaint using the

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court’s form complaint. The amended complaint must include the caption and civil case

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number used in this order and the words “AMENDED COMPLAINT” on the first page

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and write in the case number for this action, Case No. C 12-05898 EJD (PR). Plaintiff

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must answer all the questions on the form in order for the action to proceed.

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Failure to respond in accordance with this order by filing an amended

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complaint will result in the dismissal of this action without prejudice and without

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further notice to Plaintiff.

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The Clerk shall include two copies of the court’s complaint with a copy of this

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order to Plaintiff.

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DATED:

1/28/2013

EDWARD J. DAVILA
United States District Judge

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Dismissal with leave to amend
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

ENRIQUE DIAZ,

Case Number CV 12-05898 EJD (PR)

Plaintiff,
CERTIFICATE OF SERVICE
v.
R. BINKELE, et al.,
Defendants.
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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
1/29/2013
That on ______________________________, I SERVED a true and correct copy(ies) of the
attached, by placing said copy(ies) in a postage paid envelope addressed to the
person(s)hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said
copy(ies) inter-office delivery receptacle located in the Clerk's office.

Enrique Diaz
K-70268
P. O. Box 1050
Soledad, CA 93960

1/29/2013
DATED: ________________________

Richard W. Wieking, Clerk
By:
/s/ Elizabeth Garcia, Deputy Clerk

Dismissal with leave to amend
05898Diaz_dwlta.wpd

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