Walker v. Becerra et al

Filing 8

ORDER Sua Sponte Dismissing First Amended Complaint for Failing to State a Claim Pursuant To 28 U.S.C. § 1915(e)(2)(B)(ii) And § 1915A(b)(1). Plaintiff is granted sixty (60) days leave from the date of this Order in which to file a Second Amended Complaint. Signed by Judge Roger T. Benitez on 11/4/2014.(All non-registered users served via U.S. Mail Service)(knb)(jrd)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOHN WESELEYE WALKER,
CDCR #D-44672,

Civil No.
Plaintiff,

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vs.

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M. BECERRA; M.D. CARYIO;
J. HATFIELD; S. ANDERSON,
Defendants.

14cv1558 BEN (PCL)

ORDER SUA SPONTE
DISMISSING FIRST AMENDED
COMPLAINT FOR FAILING
TO STATE A CLAIM PURSUANT
TO 28 U.S.C. § 1915(e)(2)(B)(ii)
AND § 1915A(b)(1)

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I.

PROCEDURAL HISTORY

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On June 26, 2014, John Weseleye Walker (“Plaintiff”), currently incarcerated at

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Calipatria State Prison (“CAL”) located in San Diego, California, and proceeding pro

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se, filed a civil rights Complaint (“Compl.”) pursuant to 42 U.S.C. § 1983 (Doc. No. 1).

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This Court granted Plaintiff’s Motion to Proceed In Forma Pauperis (“IFP”) but sua

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sponte dismissed his Complaint for failing to state a claim upon which relief could be

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granted. (Doc. No. 3.) Plaintiff was granted leave to file an amended complaint in order

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to correct the deficiencies of pleading identified in the Court’s Order. (Id.) On October

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23, 2014, Plaintiff filed his First Amended Complaint (“FAC”) (Doc. No. 7.)

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II.

SUA SPONTE SCREENING PER 28 U.S.C. § 1915(e)(2)(B) AND § 1915A(b)

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A.

Standard of Review

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As the Court previously informed Plaintiff, notwithstanding IFP status or the

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payment of any partial filing fees, the Prison Litigation Reform Act (“PLRA”) obligates
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the Court to review complaints filed by all persons proceeding IFP, and by those, like

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Plaintiff, who are “incarcerated or detained in any facility [and] accused of, sentenced

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for, or adjudicated delinquent for, violations of criminal law or the terms or conditions

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of parole, probation, pretrial release, or diversionary program,” “as soon as practicable

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after docketing.” See 28 U.S.C. § 1915(e)(2)(B), § 1915A(a), (b). Under these statutes,

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the Court must sua sponte dismiss complaints, or any portions thereof, which are

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frivolous, malicious, fail to state a claim, or which seek damages from defendants who

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are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Lopez v. Smith, 203 F.3d

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1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d

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1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).

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All complaints must contain “a short and plain statement of the claim showing that

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the pleader is entitled to relief.” FED.R.CIV.P. 8(a)(2). Detailed factual allegations are

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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by

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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining

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whether a complaint states a plausible claim for relief [is] . . . a context-specific task that

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requires the reviewing court to draw on its judicial experience and common sense.” Id.

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The “mere possibility of misconduct” falls short of meeting this plausibility standard.

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Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

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“When there are well-pleaded factual allegations, a court should assume their

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veracity, and then determine whether they plausibly give rise to an entitlement to relief.”

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Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)

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(“[W]hen determining whether a complaint states a claim, a court must accept as true all

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allegations of material fact and must construe those facts in the light most favorable to

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the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that

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§ 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”).

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However, while the court “ha[s] an obligation where the petitioner is pro se,

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particularly in civil rights cases, to construe the pleadings liberally and to afford the
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petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir.

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2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not

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“supply essential elements of claims that were not initially pled.” Ivey v. Board of

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Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). “Vague and

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conclusory allegations of official participation in civil rights violations are not sufficient

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to withstand a motion to dismiss.” Id.

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B.

42 U.S.C. § 1983

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“Section 1983 creates a private right of action against individuals who, acting

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under color of state law, violate federal constitutional or statutory rights.” Devereaux

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v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of

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substantive rights, but merely provides a method for vindicating federal rights elsewhere

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conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks

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and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1)

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deprivation of a right secured by the Constitution and laws of the United States, and (2)

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that the deprivation was committed by a person acting under color of state law.” Tsao

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v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).

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C.

Plaintiff’s Allegations

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Plaintiff was charged with a rules violation following a “racial riot” and placed in

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Administrative Segregation (“Ad-Seg”). (Compl. at 4.) Following the issuance of the

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rules violation report, Plaintiff was “seen” by Senior Hearing Officer Carpio on August

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28, 2012. (Id. at 5.) At this hearing, Plaintiff was found “guilty based on an assertion

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of evidence supplied by the written reports of Correction Officers M. Becerra, L. Luccy

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and E. Duarte.” (Id.) Plaintiff claims that due to “Defendant M. Beccerra’s act of

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negligence and deliberate indifference of writing a false report, Plaintiff was held in Ad-

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Seg and given a “SHU” term with “90" days added to Plaintiff’s prison sentence.” (Id.

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at 8.)

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D.

Eighth Amendment Claims

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The Eighth Amendment requires that prison officials take reasonable measures to

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guarantee the safety of prisoners. Farmer v. Brennan, 511 U.S. 825, 832 (1994). In

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particular, prison officials have a duty to protect prisoners from violence at the hands of

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other prisoners. See id. at 833; Hoptowit v. Ray 682 F.2d 1237, 1250-51 (9th Cir. 1982)

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(“Prison officials have a duty to take reasonable steps to protect inmates from physical

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abuse.”). However, a prison official violates the Eighth Amendment only when two

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requirements are met: (1) the deprivation alleged is, objectively, sufficiently serious; and

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(2) the prison official is, subjectively, deliberately indifferent to inmate safety. Farmer,

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511 U.S. at 834; Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). “Deliberate

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indifference” requires that the official knows of and disregards an excessive risk to

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inmate health or safety. Farmer, 511 U.S. at 837. The official must both be aware of

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facts from which the inference could be drawn that a substantial risk of serious harm

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exists, and he must also draw the inference. Id.

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As currently pleaded, the Court finds Plaintiff has failed to allege facts sufficient

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to support a plausible claim for relief under the Eighth Amendment against Defendants

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because he has failed to include “further factual enhancement” from which the Court

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may reasonably infer that Defendants acted, or failed to reasonably act, under

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circumstances which presented a “substantial” or obvious risk” of “imminent” harm to

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Plaintiff. See Iqbal, 556 U.S. at 678; Baze v. Rees, 553 U.S. 35, 50 (2008) (to be

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deliberately indifferent, a prison official must fail to reasonably act under circumstances

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which are “‘sure or very likely to cause serious . . . and needless suffering’” and which

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“give rise to ‘sufficiently imminent dangers.’” (quoting Helling v. McKinney, 509 U.S.

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25, 33-35 (1993)).

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Here, Plaintiff himself describes Defendants actions as “negligent.” See Compl.

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at 8. Neither negligence nor gross negligence constitutes deliberate indifference.

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Farmer, 511 U.S. at 835-36 & n.4. Neither does “an isolated mishap alone . . . violate

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the Eighth Amendment,” because such an event, while regrettable, does not suggest
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cruelty or a “substantial risk of serious harm.” Baze, 553 U.S. at 50 (citing Farmer, 511

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U.S. at 842). Thus, as currently pleaded, the Court finds Plaintiff’s Eighth Amendment

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failure to protect claims against Defendants are merely “consistent with” his possible

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liability, but, without more are insufficient to “nudge [Plaintiff’s] his claim” of cruel and

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unusual punishment “across the line from conceivable to plausible.” Iqbal, 556 U.S. at

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678, 680 (citing Twombly, 550 U.S. at 557, 570).

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Accordingly, Plaintiff’s Eighth Amendment claims must be dismissed sua sponte

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for failing to state a claim upon which relief can be granted pursuant to 28 U.S.C.

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§ 1915(e)(2)(b)(ii) and § 1915A(b)(1).

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E.

Due Process Claims

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Plaintiff further alleges to have been deprived of ninety days of behavior credit as

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a result of his disciplinary conviction. See Compl. at 8, 12. The Court finds this claim

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must also be dismissed for failing to state a claim upon which section 1983 can be

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granted because a finding in Plaintiff’s favor would “necessarily imply the invalidity”

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of his disciplinary conviction. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994);

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Edwards v. Balisok, 520 U.S. 641, 643-44 (1997).

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Heck and Balisok make clear that constitutional claims involving a prison’s

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disciplinary decision to revoke behavioral credits fail to state a claim under section 1983

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since habeas corpus is the exclusive federal remedy whenever a claim for damages

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depends on a determination that a disciplinary judgment is invalid or the sentence

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currently being served is unconstitutionally long. Balisok, 520 U.S. at 643-44; Heck,

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512 U.S. at 486-87; see also Preiser v. Rodriguez, 411 U.S. 475, 487-88 (1973) (holding

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that a person in state custody may not use § 1983 to challenge “the very fact or duration

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of . . . confinement” by seeking “a determination that he is entitled to immediate release

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or a speedier release from that imprisonment.”); Nonnette v. Small, 316 F.3d 872, 875

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(9th Cir. 2002) (“It has been clear for over thirty years that a state prisoner seeking

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injunctive relief against the denial or revocation of good-time credits must proceed in

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habeas corpus, and not under § 1983.”).
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Thus, in addition to amending his pleading to state an Eighth Amendment claim,

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Plaintiff must also amend to allege facts sufficient to show that Defendants’ decision to

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revoke ninety days of his behavioral credit has already been “reversed on direct appeal,

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expunged by executive order, declared invalid by a state tribunal authorized to make

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such a determination, or called into question by a writ of habeas corpus.” Heck, 512 U.S.

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at 486-87. Until and unless he can do so, no cause of action will accrue under § 1983.

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Id.

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III.

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CONCLUSION AND ORDER
Good cause appearing, IT IS HEREBY ORDERED that:
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Plaintiff’s First Amended Complaint is DISMISSED for failing to state a

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claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and

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§ 1915A(b)(1).

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2.

Plaintiff is GRANTED sixty (60) days leave from the date of this Order in

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which to file a Second Amended Complaint which cures the deficiencies of pleading

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noted above. Plaintiff’s Amended Complaint must be complete in itself without

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reference to his original pleading. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc.

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v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended

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pleading supersedes the original.”); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)

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(citation omitted) (“All causes of action alleged in an original complaint which are not

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alleged in an amended complaint are waived.”).

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If Plaintiff fails to file an Amended Complaint within the time provided, this civil

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action shall remain dismissed without prejudice based on Plaintiff’s failure to state a

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claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and

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§ 1915A(b)(1).

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DATED: November 4, 2014

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Hon. Roger T. Benitez
United States District Judge

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14cv1558 BEN (PCL)