Edwards v. CDCR et al

Filing 9

ORDER DISMISSING CASE. Plaintiff's First Amended Complaint is dismissed for failing to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). However, Plaintiff is GRANTED sixty (60) days leave from the date of this Order in which to file a Second Amended Complaint which cures all the deficiencies of pleading. Signed by Judge Larry Alan Burns on 5/1/15 (form 1983 complaint mailed to plaintiff)(All non-registered users served via U.S. Mail Service)(kas)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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SAMUEL EDWARDS,
CDCR #F-55903,

Civil No.

Plaintiff,

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vs.

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15cv0174 LAB (JMA)

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

CALIFORNIA DEP’T OF
CORRECTIONS AND
REHABILITATION, et al.,

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Defendants.

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I.

PROCEDURAL HISTORY

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On January 26, 2015, Samuel Edwards, (“Plaintiff”), currently incarcerated at

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Centinela State Prison (“CEN”) located in Imperial, California, and proceeding pro se,

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filed a civil rights action pursuant to 42 U.S.C. § 1983. (ECF Doc. No. 1.)

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did not prepay the civil filing fee; instead he filed two Motions to Proceed In Forma

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Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF Doc. Nos. 4, 6). On February

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24, 2015, this Court granted Plaintiff’s Motions to Proceed IFP and simultaneously

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dismissed the action for failing to state a claim upon which relief could be granted
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Plaintiff

15cv0174 LAB (JMA)

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pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). (ECF Doc. No. 7.) On April 23, 2015,

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Plaintiff filed his First Amended Complaint (“FAC”). (ECF Doc. No. 8.)

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II.

INITIAL SCREENING PER 28 U.S.C. §§ 1915(e)(2)(b)(ii) AND 1915A(b)(1)

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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 for,

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

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

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docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these provisions of the

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PLRA, 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; Lopez v. Smith, 203 F.3d 1122,

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1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002,

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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 whether

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

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the reviewing court to draw on its judicial experience and common sense.” Id. The “mere

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possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also

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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, in

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

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of 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 v.

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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.

Fourteenth Amendment claims

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Plaintiff claims that his due process rights were violated when he was wrongfully

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charged with “conspiracy to introduce a controlled substance into an institution with the

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intent to distribute.” (FAC at 14.) Plaintiff was housed in administrative segregation

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during the pendency of these charges and released to general population following a

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disciplinary hearing where he was found “not guilty” of the charges. (Id. at 4.)
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“The requirements of procedural due process apply only to the deprivation of

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interests encompassed by the Fourteenth Amendment’s protection of liberty and

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property.” Board of Regents v. Roth, 408 U.S. 564, 569 (1972). State statutes and prison

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regulations may grant prisoners liberty interests sufficient to invoke due process

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protections. Meachum v. Fano, 427 U.S. 215, 223-27 (1976). However, the Supreme

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Court has significantly limited the instances in which due process can be invoked.

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Pursuant to Sandin v. Conner, 515 U.S. 472, 483 (1995), a prisoner can show a liberty

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interest under the Due Process Clause of the Fourteenth Amendment only if he alleges

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a change in confinement that imposes an “atypical and significant hardship . . . in relation

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to the ordinary incidents of prison life.” Id. at 484 (citations omitted); Neal v. Shimoda,

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131 F.3d 818, 827-28 (9th Cir. 1997).

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In this case, Plaintiff has failed to establish a liberty interest protected by the

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Constitution because he has not alleged, as he must under Sandin, facts related to the

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conditions in Ad-Seg which show “the type of atypical, significant deprivation [that]

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might conceivably create a liberty interest.” Id. at 486. For example, in Sandin, the

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Supreme Court considered three factors in determining whether the plaintiff possessed

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a liberty interest in avoiding disciplinary segregation: (1) the disciplinary versus

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discretionary nature of the segregation; (2) the restricted conditions of the prisoner’s

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confinement and whether they amounted to a “major disruption in his environment” when

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compared to those shared by prisoners in the general population; and (3) the possibility

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of whether the prisoner’s sentence was lengthened by his restricted custody. Id. at

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486-87.

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Therefore, to establish a due process violation, Plaintiff must first show the

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deprivation imposed an atypical and significant hardship on him in relation to the

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ordinary incidents of prison life. Sandin, 515 U.S. at 483-84. Plaintiff has failed to

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allege any facts from which the Court could find there were atypical and significant

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hardships imposed upon him as a result of the Defendants’ actions. Plaintiff must allege

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“a dramatic departure from the basic conditions” of his confinement that would give rise
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to a liberty interest before he can claim a violation of due process. Id. at 485; see also

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Keenan v. Hall, 83 F.3d 1083, 1088-89 (9th Cir. 1996), amended by 135 F.3d 1318 (9th

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Cir. 1998). He has not; therefore the Court finds that Plaintiff has failed to allege a

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liberty interest in remaining free of Ad-seg, and thus, has failed to state a due process

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claim. See May, 109 F.3d at 565; Hewitt, 459 U.S. at 466; Sandin, 515 U.S. at 486

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(holding that placing an inmate in administrative segregation for thirty days “did not

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present the type of atypical, significant deprivation in which a state might conceivably

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create a liberty interest.”).

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Accordingly, the Court finds that Plaintiff’s FAC fails to state a section 1983 claim

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upon which relief may be granted, and is therefore subject to dismissal pursuant to 28

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U.S.C. §§ 1915(e)(2)(b) & 1915A(b).

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III.

CONCLUSION AND ORDER

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Good cause appearing, IT IS HEREBY ORDERED that:

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Plaintiff’s First Amended Complaint is DISMISSED for failing to state a claim

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

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§ 1915A(b)(1). However, Plaintiff is GRANTED sixty (60) days leave from the date of

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this Order in which to file a Second Amended Complaint which cures all the deficiencies

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of pleading noted above. Plaintiff’s Amended Complaint must be complete in itself

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without reference to his original pleading. See S.D. CAL. CIVLR. 15.1. Defendants not

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named and all claims not re-alleged in the Amended Complaint will be considered

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waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

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The Clerk of Court is directed to mail a copy of a form § 1983 complaint.

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DATED: May 1, 2015

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HONORABLE LARRY ALAN BURNS
United States District Judge

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