Tinajero v. Madden et al

Filing 7

ORDER DISMISSING CASE. Court dismisses Pla's First Amended Complaint for failing to state a claim upon which relief may be granted pursuant to 28 USC 1915(e)(2) and 1915A(b), and grants forty-five (45) days leave from the date of this Order to f ile a Second Amended Complaint. Pla is advised that he will be not be permitted to amend his complaint indefinitely. Pla's continued failure to state a plausible claim for relief may result in dismissal without leave to amend. Signed by Judge Cynthia Bashant on 11/2/2016. (Blank Second Amended 1983 Complaint form t/w copy of Order mailed to Plaintiff) (All non-registered users served via U.S. Mail Service) (jah)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ARMANDO TINAJERO,
CDCR No. AX-3761

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ORDER DISMISSING FIRST
AMENDED COMPLAINT FOR
FAILING TO STATE A CLAIM

Plaintiff,

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Case No. 16-cv-01342-BAS-BGS

v.
RAYMOND MADDEN; L. MARIN,
Defendants.

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I.

Procedural History
On June 2, 2016, Plaintiff Armando Tinajero, currently incarcerated at Centinela

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State Prison located in Imperial, California, and proceeding pro se, filed a civil rights

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complaint pursuant to 42 U.S.C. § 1983 (Doc. No. 1 (“Compl.”)). Plaintiff did not

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prepay the civil filing fee required by 28 U.S.C. § 1914(a) when he filed his Complaint;

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instead, he filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C.

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§ 1915(a) (Doc. No. 4). The Court granted Plaintiff’s Motion to Proceed IFP but

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concurrently dismissed the Complaint for failing to state a claim upon which relief could

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be granted. (Doc. No. 5 at 8.) Plaintiff was granted leave to file an amended pleading

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and on August 22, 2016, Plaintiff filed his First Amended Complaint (“FAC”). (Doc.

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No. 6.)

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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.

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The Prison Litigation Reform Act (“PLRA”) obligates the Court to review

Standard of Review

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complaints filed by prisoners proceeding IFP “as soon as practicable after docketing.” 28

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U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2). Under these statutes, the Court must

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sua sponte dismiss any complaint, or any portion of a complaint, which is frivolous,

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malicious, fails to state a claim, or seeks damages from defendants who are immune. See

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28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); see also Rhodes v. Robinson, 621 F.3d 1002,

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1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b); Lopez v. Smith, 203 F.3d 1122,

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1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)).

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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) (citation omitted), it may not “supply essential elements of claims that were not

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initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir.

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1982). “Vague and conclusory allegations of official participation in civil rights

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violations” are simply not “sufficient to withstand a motion to dismiss.” Id.

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B.

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

Legal Standard for § 1983 Claims

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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 v.

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

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C.

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As was the case with his original Complaint, Plaintiff’s FAC contains virtually no

Individual Liability and Causation

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factual allegations as to whom he claims violated his constitutional rights; nor does it

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contain “further factual enhancement” that describes how, or to what extent, any

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individual became aware of, or were actually aware of, alleged constitutional violations.

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“Because vicarious liability is inapplicable to . . . §1983 suits, a plaintiff must plead that

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each government-official defendant, through the official’s own individual actions, has

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violated the Constitution.” Iqbal, 556 U.S. at 676; see also Jones v. Cmty.

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Redevelopment Agency of City of Los Angeles, 733 F.2d 646, 649 (9th Cir. 1984)

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(explaining that even pro se plaintiffs must “allege with at least some degree of

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particularity overt acts which defendants engaged in” in order to state a claim).

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“Causation is, of course, a required element of a § 1983 claim.” Estate of Brooks

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v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999). “The inquiry into causation must

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be individualized and focus on the duties and responsibilities of each individual

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defendant whose acts or omissions are alleged to have caused a constitutional

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deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo v. Goode,

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423 U.S. 362, 370-71 (1976)).
Instead of setting forth specific factual allegations as it relates to each individual

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defendant and the specific constitutional violation that is being raised, Plaintiff directs the

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Court to review the exhibits attached to his FAC. (See FAC at 2-5.) Where Plaintiff

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does refer to the individual Defendants, it is generally in broad terms. For example,

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Plaintiff seeks to hold Defendant Madden liable for “failure to implement and carry out a

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definitive policy directing subordinates as to how they should address problems when

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dealing with prisoners.” (Id., Ex. “A” at 1.) As for Defendant Marin, he claims Marin

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“acted with evil motive and demonstrated reckless indifference to the constitutional rights

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of this Plaintiff.” (Id. at 2.) While Plaintiff attaches a “statement” as an exhibit, it

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appears that pages are missing. (See FAC, Ex. D, at 30.) In this “statement,” Plaintiff

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describes a cell search by Defendant Marin but the statement is missing further factual

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content. If Plaintiff chooses to amend his pleading, he must set forth all his factual

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allegations in the body of the complaint itself.

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These broad claims without sufficient factual allegations are insufficient to state a

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section 1983 claim. See Iqbal, 662 U.S. at 678 (noting that Fed. R. Civ. P. 8 “demands

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more than an unadorned, the-defendant-unlawfully-harmed-me accusation,” and that “[t]o

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survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted

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as true, to ‘state a claim for relief that is plausible on its face.’”) (quoting Twombly, 550

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U.S. at 555, 570).

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D.

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Based on the exhibits attached to Plaintiff’s FAC, it appears that he is challenging

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a disciplinary conviction. The Due Process Clause protects prisoners against deprivation

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or restraint of “a protected liberty interest” and “atypical and significant hardship on the

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inmate in relation to the ordinary incidents of prison life.” Ramirez v. Galaza, 334 F.3d

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850, 860 (9th Cir. 2003) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995) (internal

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quotation marks omitted)). Although the level of the hardship must be determined on a

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case-by-case basis, courts look to:

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Fourteenth Amendment Claims

1) whether the challenged condition ‘mirrored those conditions imposed upon
inmates in administrative segregation and protective custody,’ and thus
comported with the prison’s discretionary authority; 2) the duration of the
condition, and the degree of restraint imposed; and 3) whether the state’s
action will invariably affect the duration of the prisoner’s sentence.

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Ramirez, 334 F.3d at 861 (quoting Sandin, 515 U.S. at 486-87). Only if an inmate has

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alleged facts sufficient to show a protected liberty interest does the court next consider

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“whether the procedures used to deprive that liberty satisfied Due Process.” Ramirez, 334

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F.3d at 860.

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As currently pleaded, Plaintiff’s FAC fails to allege facts which show that the

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disciplinary punishment he faced as a result of Defendant’s actions subjected him to any

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“atypical and significant hardship in relation to the ordinary incidents of prison life.” Id.;

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Sandin, 515 U.S. at 584. Plaintiff does not compare the conditions of his confinement

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before or after his disciplinary conviction. Nor does he allege the duration of his term of

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discipline, or the degree of restraint it imposed. Ramirez, 334 F.3d at 861 (quoting

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Sandin, 515 U.S. at 486-87).

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Moreover, his pleading contains no factual content that would allow the court to

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draw the reasonable inference that Defendants’ actions “presented a dramatic departure

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from the basic conditions of [Plaintiff’s] sentence,” or caused him to suffer atypical or

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significant hardship. Sandin, 515 U.S. at 584-85; see also Iqbal, 556 U.S. at 678; Keenan

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

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1998).

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Finally, to the extent that Plaintiff is challenging the prison’s administrative

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grievance process, he has failed to state a claim. While the Fourteenth Amendment

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provides that “[n]o state shall . . . deprive any person of life, liberty, or property, without

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due process of law,” U.S. Const. amend. XIV, § 1, “[t]he requirements of procedural due

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process apply only to the deprivation of interests encompassed by the Fourteenth

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Amendment’s protection of liberty and property.” Board of Regents v. Roth, 408 U.S.

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564, 569 (1972). State statutes and prison regulations may grant prisoners liberty or

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property interests sufficient to invoke due process protection. Meachum v. Fano, 427

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U.S. 215, 223-27 (1976). However, to state a procedural due process claim, Plaintiff must

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allege: “(1) a liberty or property interest protected by the Constitution; (2) a deprivation

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of the interest by the government; [and] (3) lack of process.” Wright v. Riveland, 219

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F.3d 905, 913 (9th Cir. 2000).

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The Ninth Circuit has held that inmates have no protected property interest in an

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inmate grievance procedure arising directly from the Due Process Clause. See Ramirez,

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334 F.3d at 869 (“[I]nmates lack a separate constitutional entitlement to a specific prison

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grievance procedure.”) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)). Even

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the non-existence of, or the failure of prison officials to properly implement, an

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administrative appeals process within the prison system does not raise constitutional

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concerns. Mann, 855 F.2d at 640.

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Here, Plaintiff has failed to plead any facts sufficient to show that Defendants

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deprived him of a protected liberty interest by allegedly failing to respond to any

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particular prison grievance in a satisfactory manner.

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Accordingly, for the reasons set forth above, Plaintiff’s FAC requires dismissal

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pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). See Lopez, 203 F.3d at 1126-27;

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Rhodes, 621 F.3d at 1004.

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III.

Conclusion and Order

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For the foregoing reasons, the Court:

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1.

DISMISSES Plaintiff’s FAC for failing to state a claim upon which relief

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may be granted pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and GRANTS him

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forty-five (45) days leave from the date of this Order in which to file a Second Amended

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Complaint which cures all the deficiencies of pleading noted. Plaintiff’s Second

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Amended Complaint must be complete in itself without reference to his original pleading.

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Defendants not named and any claims not re-alleged in the Second Amended Complaint

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will be considered waived. See CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner &

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Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the

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original.”); see also Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012) (noting

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that claims dismissed with leave to amend which are not re-alleged in an amended

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pleading may be “considered waived if not repled.”).

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2.

DIRECTS the Clerk of Court to mail to Plaintiff, together with this Order, a

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blank copy of the Court’s form “Complaint under the Civil Rights Act, 42 U.S.C.

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§ 1983” for his use in amending.

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Plaintiff is advised that he will not be permitted to amend his complaint

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indefinitely. Plaintiff’s continued failure to state a plausible claim for relief may result in

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dismissal of his case without leave to amend.

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//

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//

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//
IT IS SO ORDERED.

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DATED: November 2, 2016

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