Cohea v. Patzloff et al

Filing 15

ORDER Dismissing First Amended Complaint for Failing to State a Claim: Plaintiff's First Amended Complaint is dismissed without prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(b) and 1915A(b). Plaintiff is granted 60 days leave from the date this Order is "Filed" in which to file a Second Amended Complaint which cures all the deficiencies of pleading. The Clerk of Court is directed to mail a form § 1983 complaint to Plaintiff. Signed by Judge Irma E. Gonzalez on 11/10/10.(All non-registered users served via U.S. Mail Service; 1983 form sent)(lmt)

- R B B Cohea v. Patzloff et al

D o c . 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. P r o c ed u r a l History O n February 25, 2010, Danny James Cohea ("Plaintiff"), a state prisoner currently in c a rc e ra te d at Corcoran State Prison located in Corcoran, California, and proceeding in pro se, f ile d a civil rights Complaint pursuant to 42 U.S.C. § 1983. Plaintiff did not prepay the $350 f ilin g fee mandated by 28 U.S.C. § 1914(a); instead he filed two Motions to Proceed In Forma P a u p e ris ("IFP") pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2, 4], and a Motion for Temporary R e s tra in in g Order ("TRO") [Doc. No. 3]. On March 23, 2010, the Court denied Plaintiff's Motion for a TRO, granted Plaintiff's M o tio n to Proceed IFP and sua sponte dismissed his Complaint for failing to state a claim. See 1 vs. D IN A M. PATZLOFF, et al., D e f e n d a n ts . DANNY JAMES COHEA, CDCR #J-13647, P la in tif f , Civil No. 10cv0437 IEG (RBB)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

O R D E R DISMISSING FIRST A M E N D E D COMPLAINT FOR F A I L I N G TO STATE A CLAIM P U R S U A N T TO 28 U.S.C. § § 1915(e)(2)(B) & 1915A(b)

10cv0437 IEG (RBB)

Dockets.Justia.com

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

M ar. 23, 2010 Order at 10-11. Plaintiff then filed a Motion for Reconsideration of the Court's M a rc h 23, 2010 Order which was denied by the Court on June 1, 2010 but the Court did sua s p o n te provide Plaintiff an extension of time to file his First Amended Complaint. See June 1, 2 0 1 0 Order at 4. Plaintiff filed a Notice of Appeal on July 7, 2010. In addition, Plaintiff filed a Motion for Extension of Time to File Amended Complaint which was granted by the Court. S e e Aug. 13, 2010 Order at 3-4. Plaintiff filed his First Amended Complaint ("FAC") on O c to b e r 25, 2010. On November 2, 2010, the Ninth Circuit Court of Appeals issued an Order d ism issin g Plaintiff's appeal [Doc. No. 14]. II. S CREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) A s the Court stated in its prior Order, the Prison Litigation Reform Act ("PLRA") o b lig a te s the Court to review complaints filed by all persons proceeding IFP and by those, like P l a in t i f f , who are "incarcerated or detained in any facility [and] accused of, sentenced for, or a d ju d ic a te d delinquent for, violations of criminal law or the terms or conditions of parole, p ro b a tio n , pretrial release, or diversionary program," "as soon as practicable after docketing." S e e 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these provisions of the PLRA, the Court m u st sua sponte dismiss complaints, or any portions thereof, which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who are immune. See 28 U.S.C. §§ 1 9 1 5 (e )(2 )(B ) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1 9 1 5 (e )(2 )); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) (§ 1915A); see also Barren v . Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (discussing § 1915A). "[W]hen determining whether a complaint states a claim, a court must accept as true all a lle g a tio n s of material fact and must construe those facts in the light most favorable to the p la in tif f ." Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) "p ara l lels the language of Federal Rule of Civil Procedure 12(b)(6)"). In addition, the Court's d u ty to liberally construe a pro se's pleadings, see Karim-Panahi v. Los Angeles Police Dept., 8 3 9 F.2d 621, 623 (9th Cir. 1988), is "particularly important in civil rights cases." Ferdik v. B o n z e le t, 963 F.2d 1258, 1261 (9th Cir. 1992). However, in giving liberal interpretation to a 2

10cv0437 IEG (RBB)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

p ro se civil rights complaint, the court may not "supply essential elements of claims that were n o t initially pled." Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th C ir. 1982). "Vague and conclusory allegations of official participation in civil rights violations a re not sufficient to withstand a motion to dismiss." Id. A. 4 2 U.S.C. § 1983 Liability

S e c tio n 1983 imposes two essential proof requirements upon a claimant: (1) that a person a c tin g under color of state law committed the conduct at issue, and (2) that the conduct deprived th e claimant of some right, privilege, or immunity protected by the Constitution or laws of the U n ite d States. See 42 U.S.C. § 1983; Nelson v. Campbell, 541 U.S. 637, 124 S. Ct. 2117, 2122 (2 0 0 4 ); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc). B. R u le 8

O n c e again, the Court finds that Plaintiff's First Amended Complaint fails to comply with R u le 8. Specifically, Rule 8 provides that in order to state a claim for relief in a pleading it

m u st contain "a short and plain statement of the grounds for the court's jurisdiction" and "a short a n d plain statement of the claim showing that the pleader is entitled to relief." FED.R.CIV.P. 8 ( a )( 1 ) & (2). Plaintiff's First Amended Complaint is rambling and incomprehensible at times. I f Plaintiff chooses to file an Amended Complaint, he must not only comply with Rule 8, he must a b id e by S.D. CIVLR 8.2(a) (providing that complaints by prisoners must use the court approved fo rm and may attach no more than fifteen (15) additional pages.) C. A c c e ss to Courts claim

P la in t if f alleges that prison officials lost his personal property, including his legal m a te ria ls , which has hampered his ability to pursue his "civil rights litigation." See FAC at 33. P ris o n e rs do "have a constitutional right to petition the government for redress of their g rie v a n ce s, which includes a reasonable right of access to the courts." O'Keefe v. Van Boening, 8 2 F.3d 322, 325 (9th Cir. 1996); accord Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995). In Bounds, 430 U.S. at 817, the Supreme Court held that "the fundamental constitutional right o f access to the courts requires prison authorities to assist inmates in the preparation and filing o f meaningful legal papers by providing prisoners with adequate law libraries or adequate 3

10cv0437 IEG (RBB)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

a ss is ta n c e from persons who are trained in the law." Bounds v. Smith, 430 U.S. 817, 828 (1977). T o establish a violation of the right to access to the courts, however, a prisoner must allege facts s u f f ic ie n t to show that: (1) a nonfrivolous legal attack on his conviction, sentence, or conditions o f confinement has been frustrated or impeded, and (2) he has suffered an actual injury as a re s u lt. Lewis v. Casey, 518 U.S. 343, 353-55 (1996). An "actual injury" is defined as "actual p re ju d ic e with respect to contemplated or existing litigation, such as the inability to meet a filing d e a d lin e or to present a claim." Id. at 348; see also Vandelft v. Moses, 31 F.3d 794, 796 (9th Cir. 1 9 9 4 ); Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir. 1989); Keenan v. Hall, 83 F.3d 1083, 1093 (9th Cir. 1996). H e re , Plaintiff has failed to alleged any actions with any particularity that have precluded h is pursuit of a non-frivolous direct or collateral attack upon either his criminal conviction or s e n te n c e or the conditions of his current confinement. See Lewis, 518 U.S. at 355 (right to a c c e ss to the courts protects only an inmate's need and ability to "attack [his] sentence[], directly o r collaterally, and ... to challenge the conditions of [his] confinement."); see also Christopher v . Harbury, 536 U.S. 403, 415 (2002) (the non-frivolous nature of the "underlying cause of a c tio n , whether anticipated or lost, is an element that must be described in the complaint, just as m u ch as allegations must describe the official acts frustrating the litigation."). Moreover, P lain tiff has not alleged facts sufficient to show that he has been actually injured by any specific d e f e n d a n t's actions. Lewis, 518 U.S. at 351. In short, Plaintiff has not alleged that "a complaint he prepared was dismissed," or that h e was "so stymied" by any individual defendant's actions that "he was unable to even file a c o m p la in t," direct appeal or petition for writ of habeas corpus that was not "frivolous." Lewis, 5 1 8 U.S. at 351; Christopher, 536 U.S. at 416 ("like any other element of an access claim[,] ... th e predicate claim [must] be described well enough to apply the `nonfrivolous' test and to show that the `arguable' nature of the underlying claim is more than hope."). Therefore, Plaintiff's a c ce ss to courts claims must be dismissed for failing to state a claim upon which section 1983 re lie f can be granted. See Lopez, 203 F.3d at 1126-27; Resnick, 213 F.3d at 446. /// 4

10cv0437 IEG (RBB)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

D.

H e c k Bar

P la in tif f claims that Defendants use of the disciplinary convictions against him have c a u se d his parole date to be delayed. Plaintiff references two different disciplinary hearings, one th a t occurred in 2006 and one that occurred in 2007. For all the reasons that the Court stated in the March 23, 2010 Order, any and all claims relating to Plaintiff's 2006 disciplinary hearing are d is m is s e d without leave to amend. To the extent that Plaintiff seeks money damages based on th e claims related to his 2007 disciplinary hearings, his request is barred by Heck v. Humphrey, 5 1 2 U.S. 477, 481 (1994). "In any § 1983 action, the first question is whether § 1983 is the appropriate avenue to re m e d y the alleged wrong." Haygood v. Younger, 769 F.2d 1350, 1353 (9th Cir. 1985) (en b a n c ). A prisoner in state custody simply may not use a § 1983 civil rights action to challenge th e "fact or duration of his confinement." Preiser v. Rodriguez, 411 U.S. 475, 489 (1973). The p ris o n e r must seek federal habeas corpus relief instead. Wilkinson v. Dotson, 544 U.S. 74, 78 (2 0 0 5 ) (quoting Preiser, 411 U.S. at 489). Thus, Plaintiff's § 1983 action "is barred (absent p rio r invalidation)--no matter the relief sought (damages or equitable relief), no matter the target o f his suit (state conduct leading to conviction or internal prison proceedings)--if success in that a c tio n would necessarily demonstrate the invalidity of confinement or its duration." Wilkinson, 5 4 4 U.S. at 82. In this case, Plaintiff's claims "necessarily imply the invalidity" of his disciplinary c o n v ic tio n s which have allegedly delayed his parole date. Heck, 512 U.S. at 487. In creating th e favorable termination rule in Heck, the Supreme Court relied on "the hoary principle that c iv il tort actions are not appropriate vehicles for challenging the validity of outstanding criminal ju d g m e n ts ." Heck, 511 U.S. at 486. This is precisely what Plaintiff attempts to accomplish here. T h e re f o re , to satisfy Heck's "favorable termination" rule, Plaintiff must first allege facts which s h o w that the conviction which forms the basis of his § 1983 Complaint has already been: (1 ) reversed on direct appeal; (2) expunged by executive order; (3) declared invalid by a state trib u n a l authorized to make such a determination; or (4) called into question by the grant of a w rit of habeas corpus. Heck, 512 U.S. at 487 (emphasis added); see also Butterfield v. Bail, 120 5

10cv0437 IEG (RBB)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

F .3 d 1023, 1025 (9th Cir. 1997).

Plaintiff's First Amended Complaint, like his original

C o m p la in t, alleges no facts sufficient to satisfy Heck. Thus, a suit for money damages based o n his disciplinary convictions which have allegedly delayed his parole date is not yet c o g n iz a b le . d is c ip lin a ry Accordingly, because Plaintiff seeks damages for allegedly unconstitutional proceedings, and because he has not shown that his conviction has been

in v alid ated , either by way of direct appeal, state habeas or pursuant to 28 U.S.C. § 2254, a s e c tio n 1983 claim for damages cannot be maintained, see Heck, 512 U.S. at 489-90, and his F irs t Amended Complaint must be dismissed without prejudice. See Trimble v. City of Santa R o s a , 49 F.3d 583, 585 (9th Cir. 1995) (finding that an action barred by Heck has not yet accrued a n d thus, must be dismissed without prejudice so that the plaintiff may reassert his § 1983 claims if he ever succeeds in invalidating the underlying conviction or sentence); accord Blueford v. P ru n ty , 108 F.3d 251, 255 (9th Cir. 1997). E. D u e Process claims

E v e n if Plaintiff's claims related to his 2007 disciplinary hearings were not barred by H e c k, they must be dismissed for failing to allege a Fourteenth Amendment due process claim. " T h e requirements of procedural due process apply only to the deprivation of interests e n c o m p a s s e d by the Fourteenth Amendment's protection of liberty and property." Board of R e g e n ts v. Roth, 408 U.S. 564, 569 (1972). State statutes and prison regulations may grant

p ris o n e rs liberty interests sufficient to invoke due process protections. Meachum v. Fano, 427 U .S . 215, 223-27 (1976). However, the Supreme Court has significantly limited the instances in which due process can be invoked. Pursuant to Sandin v. Conner, 515 U.S. 472, 483 (1995), a prisoner can show a liberty interest under the Due Process Clause of the Fourteenth A m e n d m e n t only if he alleges a change in confinement that imposes an "atypical and significant h a rd s h ip . . . in relation to the ordinary incidents of prison life." Id. at 484 (citations omitted); N e a l v. Shimoda, 131 F.3d 818, 827-28 (9th Cir. 1997). In this case, Plaintiff has failed to establish a liberty interest protected by the Constitution b e c au s e he has not alleged, as he must under Sandin, facts related to the conditions or c o n se q u e n ce s of his placement in Ad-Seg which show "the type of atypical, significant 6

10cv0437 IEG (RBB)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

d e p r iv a tio n [that] might conceivably create a liberty interest." Id. at 486. For example, in S a n d in , the Supreme Court considered three factors in determining whether the plaintiff p o s s e ss e d a liberty interest in avoiding disciplinary segregation: (1) the disciplinary versus d iscre tio n ary nature of the segregation; (2) the restricted conditions of the prisoner's c o n f in e m e n t and whether they amounted to a "major disruption in his environment" when c o m p a r e d to those shared by prisoners in the general population; and (3) the possibility of w h e th e r the prisoner's sentence was lengthened by his restricted custody. Id. at 486-87. Therefore, to establish a due process violation, Plaintiff must first show the deprivation im p o s e d an atypical and significant hardship on him in relation to the ordinary incidents of p ris o n life. Sandin, 515 U.S. at 483-84. Plaintiff has failed to allege any facts from which the C o u rt could find there were atypical and significant hardships imposed upon him as a result of th e Defendants' actions. Plaintiff must allege "a dramatic departure from the basic conditions" o f his confinement that would give rise to a liberty interest before he can claim a violation of due p ro c e s s . Sandin, 515 U.S. at 485; see also Keenan v. Hall, 83 F.3d 1083, 1088-89 (9th Cir. 1 9 9 6 ), amended by 135 F.3d 1318 (9th Cir. 1998). He has failed to allege such facts and thus, th e Court finds that Plaintiff has failed to allege a liberty interest in remaining free of ad-seg, and th u s , has failed to state a due process claim. See May, 109 F.3d at 565; Hewitt, 459 U.S. at 466; S a n d in , 515 U.S. at 486 (holding that placing an inmate in administrative segregation for thirty d a ys "did not present the type of atypical, significant deprivation in which a state might co n ce iv ab ly create a liberty interest."). F. R e ta lia tio n

T o the extent Plaintiff claims Defendants have retaliated against him, he must allege facts s u f f ic ie n t to show that: (1) he was retaliated against for exercising his constitutional rights, (2) th e alleged retaliatory action "does not advance legitimate penological goals, such as preserving in s titu tio n a l order and discipline," Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per c u ria m ), and (3) the defendants' actions harmed him.1 See Rhodes v. Robinson, 380 F.3d 1183, "[A] retaliation claim may assert an injury no more tangible than a chilling effect on First Amendment rights." Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir.2001) (emphasis original). "Without alleging a chilling effect, a retaliation claim without allegation of other harm is not actionable." 7
10cv0437 IEG (RBB)
1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1 1 3 1 (9th Cir. 2004) ("Our cases, in short, are clear that any retribution visited upon a prisoner d u e to his decision to engage in protected conduct is sufficient to ground a claim of unlawful F ir st Amendment retaliation--whether such detriment "chills" the plaintiff's exercise of his First A m e n d m e n t rights or not."); see also Resnick, 213 F.3d at 449; Hines v. Gomez, 108 F.3d 265, 2 6 9 (9th Cir. 1997). P lain tiff has failed to allege that Defendants' actions failed to "advance legitimate p e n o lo g ic a l goals," Barnett, 31 F.3d at 815-16, that he was harmed as a result of exercising his F irs t Amendment rights, Rhodes, 380 F.3d at 1131, or has been otherwise `chilled' in relation to the exercise of his rights. Resnick, 213 F.3d at 449; Hines, 108 F.3d at 269. Here, Plaintiff c la im s that Defendant Patzloff instigated disciplinary proceedings because she was "caught s ta rin g " at Plaintiff's genitals. See FAC at 14. Plaintiff does not allege that he was exercising h is First Amendment rights. Moreover, Plaintiff's allegations are no more than a "threadbare re c ita ls of a cause of action's elements, supported by mere conclusory statements." Ashcroft v. Iq b a l, __ U.S. __, 129 S.Ct. 1937, 1940 (2009) (citations omitted). For all the above stated reasons, and those set forth in the Court's March 23, 2010 Order, P la in tif f 's First Amended Complaint is dismissed for failing to state a claim upon which relief m a y be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b). Plaintiff will be provided o n e final opportunity to correct the deficiencies of pleading identified by the Court. III. C ONCLUSION AND ORDER Good cause appearing therefor, IT IS HEREBY ORDERED that: P la in t if f ' s First Amended Complaint is DISMISSED without prejudice pursuant to 28 U .S .C . §§ 1915(e)(2)(b) and 1915A(b). However, Plaintiff is GRANTED sixty (60) days leave f ro m the date this Order is "Filed" in which to file a Second Amended Complaint which cures a ll the deficiencies of pleading noted above. Plaintiff's Amended Complaint must be complete in itself without reference to the superseded pleading. See S.D. Cal. Civ. L. R. 15.1. Defendants Id. Thus, while many plaintiffs alleging retaliation can show harm by pointing to the "chilling effect" such acts may have had on the exercise of their First Amendment rights, "harms entirely independent from a chilling effect can ground retaliation claims." Rhodes, 380 F.3d at 1131. 8
10cv0437 IEG (RBB)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

n o t named and all claims not re-alleged in the Amended Complaint will be deemed to have been w a iv e d . See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Further, if Plaintiff's Amended C o m p la in t fails to state a claim upon which relief may be granted, it may be dismissed without fu rth e r leave to amend and may hereafter be counted as a "strike" under 28 U.S.C. § 1915(g). S e e McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th Cir. 1996). The Clerk of Court is directed to mail a form § 1983 complaint to Plaintiff. I T IS SO ORDERED. D A T E D : November 10, 2010 I R M A E. GONZALEZ, Chief Judge U n ite d States District Court

9

10cv0437 IEG (RBB)