Dennison v. Harrington et al

Filing 7

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) re: 1 . Signed by CHIEF U.S. DISTRICT JUDGE J. MICHAEL SEABRIGHT on 8/16/2016. (afc) Excerpt of conclusion: < br>"Dennison may file an amended complaint curing the deficiencies in his claims on or before September 16, 2016.""Failure to timely amend the Complaint and cure its pleading deficiencies will result in dismissal of th is action with prejudice for failure to state a claim, and Dennison shall incur a strike pursuant to 28 U.S.C. § 1915(g)."CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications re ceived this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). A copy of the instant order and the "Complaint for Violation of Civil Rights (Prisoner Complaint)" (Pro Se 14 form) has been served this date by first class mail addressed to Mr. Ian Dennison at his address of record.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

IAN DENNISON, #A1026519,

)
)
Plaintiff,
)
)
vs.
)
)
WAIAWA CORR. FACILITY,
)
SCOTT HARRINGTON,
)
LIEUTENANT ANTHONY
)
MONTEILH, OFFICER
)
ARMITAGE,
)
)
Defendants.
)
____________________________ )

CIV. NO. 16-00389 JMS/KJM
ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND
PURSUANT TO 28 U.S.C.
§§ 1915(e)(2) & 1915A(b)

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b)
Before the court is pro se Plaintiff Ian Dennison’s prisoner civil rights
Complaint. Dennison is incarcerated at the Saguaro Correctional Center located in
Eloy, Arizona, but complains of incidents that occurred at the State of Hawaii’s
Waiawa Correctional Facility (“WCF”) in December 2015. Dennison names
WCF, its Warden Scott Harrington, and correctional officers Lieutenant Anthony
Monteilh, and Officer Armitage (collectively, “Defendants”) in their official
capacities.

Dennison alleges Defendants violated his rights to due process and equal
protection under the Sixth and Fourteenth Amendments to the United States
Constitution during and after a disciplinary hearing. Dennison’s Complaint is
DISMISSED for failure to state a cognizable claim for relief. See 28 U.S.C.
§§ 1915(e)(2) & 1915A(b). He is granted leave to amend to correct the
deficiencies discussed below, on or before September 16, 2016.
I. BACKGROUND1
Dennison was incarcerated at WCF between October 6 and November 19,
2015.2 He alleges that on or about November 18, 2015, Officer Armitage noted
that Dennison’s eyes were red, claimed that he was intoxicated, and issued him a
misconduct report. Lieutenant Monteilh investigated the charges, and Dennison
states that his urinalysis test was negative.
Prison officials conducted a disciplinary hearing on December 10, 2015,
after Dennison’s transfer from WCF. Three officers testified that Dennison
appeared intoxicated (notwithstanding the negative urinalysis); Dennison was not

1

The court’s recitation of facts is taken from the Complaint and publicly available
documents, and are accepted as true for the purposes of this Order, but should not be construed as
findings by the court.
2

WCF is a minimum security prison that “provides an environment that helps inmates
successfully re-enter the community from prison. All inmates participate in education or
substance abuse treatment programs.” See http://dps.hawaii.gov/wc.
2

permitted to present medical records clarifying why his eyes appeared red.
Dennison was found guilty of violating Department of Public Safety (“DPS”)
Policy and Procedures Manual, COR.13.03.4.0.3a.7(9), which states:
.3 High Misconduct Violations (7)
a. 7(9)

Possession, introduction, manufacturing or
use of any narcotic paraphernalia, drugs,
intoxicants, synthetic drug composition or
alcoholic beverages not prescribed for the
individual by the medical staff, which
includes any form of being intoxicated.

Although sanctions for a high misconduct violation may include disciplinary
segregation for up to thirty days and any other sanction beyond disciplinary
segregation, COR.13.03.3(b), Dennison does not detail what sanction was
imposed. Although he appealed, Warden Harrington upheld the hearing officers’
decision. Dennison alleges that, as a result of the misconduct finding, he was
denied parole and must complete additional mandatory programs for parole
eligibility. He also says his classification status was increased.
Dennison claims that DPS Policy and Procedures require “representation
and confrontation of evidence.” Compl., Doc. No. 1, PageID #6. He alleges no
evidence was presented against him (other than three officers’ testimony that he
appeared intoxicated), and that he was, therefore, treated differently than similarly

3

situated inmates. He claims this violated his constitutional rights to due process
and equal protection. Dennison seeks damages, expungement of the disciplinary
report, a new parole hearing, or immediate parole.
II. LEGAL STANDARD
The court must screen all prisoner civil actions seeking redress from a
governmental entity, officer, or employee. 28 U.S.C. § 1915A(a). Complaints or
claims that are frivolous, malicious, fail to state a claim, or seek relief from an
immune defendant must be dismissed. 28 U.S.C. § 1915(e)(2); 28 U.S.C.
§ 1915A(b); 42 U.S.C. § 1997e(c)(1). The court must set conclusory factual
allegations aside, accept non-conclusory factual allegations as true, and determine
whether these allegations state a plausible claim for relief. Ashcroft v. Iqbal, 556
U.S. 662, 677-80 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Plausibility does not mean “probability,” but it requires “more than a
sheer possibility that a defendant has acted unlawfully.” Id. at 678.
To state a claim, a pleading must contain a “short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A
complaint that lacks a cognizable legal theory or alleges insufficient facts under a
cognizable legal theory fails to state a claim. Balistreri v. Pacifica Police Dep’t,
901 F.2d 696, 699 (9th Cir. 1990). “Threadbare recitals of the elements of a cause
4

of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556
U.S. at 679; Twombly, 550 U.S. at 555.
Leave to amend should be granted if it appears the plaintiff can correct the
complaint’s defects. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en
banc). A court has the discretion to dismiss a complaint without leave to amend,
however, when “it is clear that the complaint could not be saved by any
amendment.” Sylvia Landfield Trust v. City of L.A., 729 F.3d 1189, 1196 (9th Cir.
2013).
III. DISCUSSION
“To sustain an action under section 1983, a plaintiff must show (1) that the
conduct complained of was committed by a person acting under color of state law;
and (2) that the conduct deprived the plaintiff of a federal constitutional or
statutory right.” Hydrick v. Hunter, 500 F.3d 978, 987 (9th Cir. 2007) (citation
and internal quotation marks omitted), vacated and remanded on other grounds,
556 U.S. 1256 (2009); see also West v. Atkins, 487 U.S. 42, 48 (1988); 42 U.S.C.
§ 1983. Additionally, a plaintiff must allege that he suffered a specific injury as a
result of the conduct of a particular defendant, and he must allege an affirmative
link between the injury and the conduct of that defendant. Rizzo v. Goode, 423
U.S. 362, 371-72, 377 (1976).
5

A.

Official Capacity Claims
“The Eleventh Amendment bars suits for money damages in federal court

against a state, its agencies, and state officials acting in their official capacities.”
Aholelei v. Dep’t of Pub. Safety, 488 F.3d 1144, 1147 (9th Cir. 2007). Defendants
named in their official capacities are subject only to suit under § 1983 “for
prospective declaratory and injunctive relief . . . to enjoin an alleged ongoing
violation of federal law.” Oyama v. Univ. of Haw., 2013 WL 1767710, at *7 (D.
Hawaii Apr. 23, 2013) (quoting Wilbur v. Locke, 423 F.3d 1101, 1111 (9th Cir.
2005), abrogated on other grounds by Levin v. Commerce Energy Inc., 560 U.S.
413 (2010)); see also Will v. Mich. Dept. of State Police, 491 U.S. 58, 70-71
(1989) (“[A] suit against a state official in his or her official capacity is not a suit
against the official but rather is a suit against the official’s office.”); Ex parte
Young, 209 U.S. 123 (1908).
Dennison names Harrington, Monteilh, and Armitage in their official
capacities (in effect, suing the State for their allegedly illegal conduct). To the
extent Dennison seeks damages against Harrington, Monteilh, and Armitage in
their official capacities, those claims are DISMISSED with prejudice. Dennison
may amend his Complaint to seek damages against Harrington, Monteilh, and

6

Armitage by naming them in their individual capacities (if he can correct the
Complaint’s other deficiencies discussed below).
Additionally, WCF is not a “person” within the meaning of § 1983, and
cannot be sued under § 1983. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44,
53-54 (1996); Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 106
(1984); Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320, 1327 (9th Cir. 1991).
Claims against WCF are DISMISSED with prejudice.
B.

Due Process in Prison Disciplinary Hearing
To state a due process violation, a plaintiff must first establish a liberty

interest for which protection is sought. Liberty interests may arise from the Due
Process Clause itself or from state law. Wilkinson v. Austin, 545 U.S. 209, 221
(2005); Hewitt v. Helms, 459 U.S. 460, 466-68 (1983), abrogated in part on other
grounds by Sandin v. Conner, 515 U.S. 472, 481-84 (1995); Chappell v.
Mandeville, 706 F.3d 1052, 1062 (9th Cir. 2013). If no protected liberty interest is
at stake, no process is required. See, e.g., Wilkinson, 545 U.S. at 221; Ky. Dep’t of
Corr. v. Thompson, 490 U.S. 454, 459-60 (1989); Meachum v. Fano, 427 U.S.
215, 223-24 (1976); McQuillion v. Duncan, 306 F.3d 895, 900 (9th Cir. 2002).
That is, if the challenged prison practice or sanction is “within the normal limits or
range of custody which the conviction has authorized the State to impose,” there is
7

no liberty interest directly under the Constitution. Meachum, 427 U.S. at 225; see
also Hewitt, 459 U.S. at 466-70.
A state-created liberty interest may also arise through state statutes, prison
regulations, and policies. Chappell, 706 F.3d at 1063. State liberty interests must
be of “real substance” however, meaning freedom from restraint or state action
that (1) imposes “atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life,” or (2) “will inevitably affect the duration of [a]
sentence.” Sandin, 515 U.S. at 477-87, 484, 487. And, “the touchstone of the
inquiry into the existence of a protected, state-created liberty interest in avoiding
restrictive conditions of confinement is not the language of the regulations
regarding those conditions but the nature of those conditions themselves ‘in
relation to the ordinary incidents of prison life.’” See Wilkinson, 545 U.S. at
222-23.
First, to the extent Dennison alleges a liberty interest based on the denial of
parole and allegedly new requirements for mandatory programs to be eligible for
parole, he fails to state a claim. Hawaii’s inmates have no federal or state-created
liberty interest in parole. See Jago v. Van Curen, 454 U.S. 14, 17-21 (1981)
(holding there is no constitutionally-protected interest in parole even after a parole
date is set); Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 7
8

(1979); Rideout v. Haw. Paroling Auth., 2014 WL 1571286, at *3 (D. Haw. April
17, 2014) (recognizing that no state-created liberty interest in parole is created
under Hawaii’s parole regime, and collecting District of Hawaii cases); Turner v.
Haw. Paroling Auth., 93 Haw. 298, 302, 1 P.3d 768, 772 (2000); Mujahid v. Apao,
795 F. Supp. 1020, 1024 (D. Haw. 1992).
Second, to the extent Dennison asserts that the allegedly erroneous
information in his institutional file may result in a diminished future possibility of
parole, his claim fails. “The decision to release a prisoner rests on a myriad of
considerations. And, the prisoner is afforded procedural protection at his parole
hearing in order to explain the circumstances behind his misconduct record.”
Sandin, 515 U.S. at 487. The mere possibility that a disciplinary action taken
against a prisoner could later influence a prisoner’s chance at early release is “too
attenuated” to implicate the Due Process Clause. Id.
Third, to the extent that Dennison alleges he possesses a liberty interest in
an accurate prison file, and suggests expungement of the December 2015
disciplinary violation report would result in a favorable parole ruling, he fails to
state a claim. Success on the merits of Dennison’s claims (which would support
expungement), will “not necessarily lead to a grant of parole.” See Nettles v.
Grounds, --- F.3d ---, 2016 WL 4072465, *9 (9th Cir. July 26, 2016). Under
9

Hawaii law, the Hawaii Paroling Authority (“HPA”) considers several factors to
determine a prisoner’s suitability for parole, including reference to a validated
“risk assessment” actuarial tool, the inmate’s criminal history (to evaluate the
likelihood of reoffending), recent prison misconducts, any pending felony charges,
and the prisoner’s stated parole plan. See Haw. Rev. Stat. § 706-670(1). A prison
rules violation is therefore only one of the factors considered by the HPA, and “the
presence of a disciplinary infraction does not compel the denial of parole, nor does
an absence of an infraction compel the grant of parole.” Nettles, 2016 WL
4072465, at *9 (citing Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 2003)).
Under Hawaii law, the HPA can still deny Dennison parole even if he is successful
in expunging the December 2015 disciplinary report.
Fourth, Dennison fails to allege any sanction he received based on the
allegedly inaccurate information in his file. Although the court can infer that
Dennison was transferred from WCF after the incident but before the disciplinary
hearing, apparently based on the charges alone, Dennison fails to allege facts
showing that this transfer subjected him to atypical or significant hardship or will
inevitably affect the duration of his sentence. Prisoners have no liberty interest in
freedom from transfer within the prison, within the state, or to out-of-state
facilities. See Olim v. Wakinekona, 461 U.S. 238, 244-48 (1983); Meachum, 427
10

U.S. at 224-25; Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir. 1985) (citing
Meachum, 427 U.S. at 224-25; Olim, 461 U.S. at 244-48).
Finally, Dennison has no liberty interest in his classification status under the
Fourteenth Amendment. Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir.
1987); see Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976) (stating that the Due
Process Clause is not implicated by federal prisoner classification and eligibility
for rehabilitative programs, even where inmate suffers “grievous loss”). Again,
Dennison fails to describe how his changed classification status imposes atypical
or significant hardship or inevitably affects the duration of his sentence and cannot
form the basis for a due process claim. Dennison’s due process claims are
DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), with leave
granted to amend.
C.

Claims Against Warden Harrington
Dennison’s only claim against Warden Harrington is that he upheld the

disciplinary hearing decision on appeal. There is no federal constitutional right to
a prison administrative appeal or grievance system. See Ramirez, 334 F.3d at 860;
Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); Antonelli v. Sheahan, 81 F.3d
1422, 1430 (7th Cir. 1996) (prison grievance procedure is procedural right that
does not give rise to protected liberty interest requiring procedural protections of
11

Due Process Clause); Smith v. Noonan, 992 F.2d 987, 989 (9th Cir. 1993). Prison
officials are not liable for a due process violation for failing to process a grievance
or appeal or for failing to find in the prisoner’s favor. Claims against Warden
Harrington are DISMISSED with leave to amend.
D.

Equal Protection
The Equal Protection Clause directs that “all persons similarly situated

should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,
439 (1985); see also Bell v. Wolfish, 441 U.S. 520, 545-47 (1979) (holding that
convicted prisoners are entitled to protection under Equal Protection Clause). To
establish an equal protection violation, a prisoner must show that he was
intentionally discriminated against based on his membership in a protected class.
See Lee v. City of L.A., 250 F.3d 668, 686 (9th Cir. 2001) (discussing elements of
equal protection claim in § 1983 civil rights action). In the alternative, a prisoner
must show that he was intentionally treated differently from other similarly
situated inmates without a rational basis for such disparate treatment. Vill. of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam) (involving plaintiff
who “did not allege membership in a class or group”); see also N. Pacifica LLC v.
City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008) (holding that an equal

12

protection claim brought by “class of one” is “premised on unique treatment rather
than on a classification”).
Dennison does not allege that he is a member of a protected class and that
Defendants intentionally discriminated against him based on his membership in
such class. He also fails to allege facts that show another similarly situated inmate
was treated differently than him. That is, Dennison fails to allege that another
inmate who was accused of intoxication despite a negative urinalysis was treated
differently than he and was allowed to remain at WCF. Rather, Dennison
concludes that, because DPS Policies and Procedures provide for “representation
and confrontation of evidence,” and he was allegedly not afforded either, he was
denied equal protection. A violation of a state prison’s policies, procedures, or
rules is not actionable under § 1983, unless such violation also impacts federal
rights. Cousins v. Lockyer, 568 F.3d 1063, 1070 (9th Cir. 2009) (quoting Gardner
v. Howard, 109 F.3d 427, 430 (8th Cir. 1997)); Selsor v. Weaver, 2016 WL
4191882, at *4 (E.D. Cal. Aug. 8, 2016). Dennison fails to state an equal
protection violation and this claim is DISMISSED with leave to amend.
IV. LEAVE TO AMEND
Dennison’s Complaint is DISMISSED. 28 U.S.C. § 1915(e)(2); 28 U.S.C.
§ 1915A(b); 42 U.S.C. § 1997e (c)(1). He may file an amended complaint on or
13

before September 16, 2016, that cures the deficiencies noted in this Order.
Dennison is notified that he must comply with the Federal Rules of Civil
Procedure and the Local Rules for the District of Hawaii if he elects to amend his
pleading.
An amended complaint generally supersedes the original complaint. See
Ramirez v. Cty. of San Bernadino, 806 F.3d 102, 1008 (9th Cir. 2015). The court
will not refer to the original pleading to make an amended complaint complete,
although it will not ignore contradictory statements of fact between an original and
amended complaint. Local Rule 10.3 further requires that an amended complaint
be complete in itself without reference to any prior pleading. Defendants not
named in the caption and claims dismissed without prejudice that are not realleged
in an amended complaint may be deemed voluntarily dismissed. See Lacey v.
Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012) (“[C]laims dismissed with
prejudice [need not] be repled in a[n] amended complaint to preserve them for
appeal. . . . [but] claims [that are] voluntarily dismissed [are] . . . waived if not
repled.”). In an amended complaint, each claim and the involvement of each
Defendant must be sufficiently alleged.
///
///
14

V. 28 U.S.C. § 1915(g)
If Dennison fails to timely file an amended complaint, or is unable to amend
his claims to cure their deficiencies, this dismissal shall count as a “strike” under
the “3-strikes” provision of 28 U.S.C. § 1915(g). Under the 3-strikes provision, a
prisoner may not bring a civil action or appeal a civil judgment in forma pauperis
under 28 U.S.C. § 1915
if the prisoner has, on 3 or more prior occasions, while incarcerated or
detained in any facility, brought an action or appeal in a court of the
United States that was dismissed on the grounds that it is frivolous,
malicious, or fails to state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of serious physical
injury.
28 U.S.C. § 1915(g).
VI. CONCLUSION
(1) The Complaint is DISMISSED for failure to state a claim pursuant to
28 U.S.C. §§ 1915(e)(2) & 1915A(b)(1).
(2) Dennison may file an amended complaint curing the deficiencies in his
claims on or before September 16, 2016.
(3) Failure to timely amend the Complaint and cure its pleading deficiencies
will result in dismissal of this action with prejudice for failure to state a claim, and
Dennison shall incur a strike pursuant to 28 U.S.C. § 1915(g).

15

(4) The Clerk of Court is DIRECTED to mail Dennison a prisoner civil
rights complaint form to assist him in complying with the directions in this Order.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 16, 2016.

/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge

Dennison v. Waiawa Corr. Facility, 1:16-cv-00389 JMS/KJM jms scr’g 2016 (DP drug test trsf)

16