Dennison v. Harrington et al

Filing 9

ORDER DISMISSING AMENDED COMPLAINT WITH LEAVE TO AMEND re: 8 . Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 11/3/2016. (afc) Excerpt of conclusion: "(1) The Complaint is DISMISSED for failur e to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b)(1). Specifically, Dennison's due process claims against Warden Harrington are DISMISSED WITH PREJUDICE. Dennison's remaining due process claims and equal protection claims are DISMISSED WITH LEAVE TO AMEND.(2) Dennison may file an amended complaint curing the deficiencies noted above on or before November 28, 2016.(3) Failure to timely amend and cure the pleading deficiencies noted herein will r esult in dismissal of this action with prejudice for failure to state a claim, and Dennison may incur a strike pursuant to 28 U.S.C. § 1915(g)."CERTIFICATE OF SERVICEParticipants registered to receive elec tronic notifications received 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) will be served on November 4, 2016 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.
)
)
SCOTT HARRINGTON, et al.,
)
)
Defendants.
)
____________________________ )

CIV. NO. 16-00389 JMS/KJM
ORDER DISMISSING AMENDED
COMPLAINT WITH LEAVE TO
AMEND

ORDER DISMISSING AMENDED COMPLAINT
WITH LEAVE TO AMEND
Before the court is pro se Plaintiff Ian Dennison’s first amended prisoner
civil rights Complaint (“FAC”). Dennison names Waiawa Correctional Facility
(“WCF”) Warden Scott Harrington, and WCF correctional officers Lieutenant
Anthony Monteilh and Armitage (collectively, “Defendants”) in their individual
capacities. He alleges Defendants violated his rights to due process and equal
protection regarding disciplinary proceedings that occurred in December 2015.
For the following reasons, the FAC is DISMISSED for failure to state a
cognizable claim for relief. See 28 U.S.C. §§ 1915(e)(2) & 1915A(b). Dennison
is granted leave to amend to correct the deficiencies discussed below, on or before
November 28, 2016.

I. BACKGROUND
A.

Procedural History
On July 11, 2016, Dennison commenced this action by filing the original

Complaint and an informal request to proceed in forma pauperis (“IFP”). ECF
Nos. 1 and 2. Dennison claimed that Defendants denied him due process and
equal protection under the law when they falsely charged him with being
intoxicated at WCF, denied his request to introduce evidence at his disciplinary
proceedings, found him guilty, transferred him to the Halawa Correctional Facility
(“HCF”), denied his grievance appeal, and increased his classification status. He
alleged these acts resulted in the Hawaii Paroling Authority’s (“HPA”) decision to
deny him parole in January 2016 and impose additional conditions for early
release.
On August 2, 2016, the court granted Dennison’s amended IFP application.
See ECF Nos. 5 and 6.
On August 16, 2016, the court dismissed the original Complaint with leave
to amend, for Dennison’s failure to state a claim. Order, ECF No. 7. Specifically,
Dennison’s claims against WCF and his damages claims asserted against
Harrington, Monteilh, and Armitage in their official capacities were dismissed
with prejudice. Dennison’s due process and equal protection claims were
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dismissed without prejudice, with explicit notice of their legal deficiencies. See
Order, ECF No. 7. Dennison was granted until September 16, 2016, to file an
amended complaint.
On September 19, 2016, Dennison filed the FAC presently before the court
on screening.1 ECF No. 8. The FAC’s allegations are substantially similar to
those in the original Complaint, although it provides more detail and Dennison
attaches several exhibits to the FAC to support his claims. Dennison realleges due
process and equal protection claims against Harrington, Monteilh, and Armitage in
their individual capacities only.
B.

Allegations in the FAC2
On November 18, 2015, Officer Armitage and several other unidentified

officers encountered Dennison and inmate Nowicke in WCF building 9B E.
Armitage suspected Dennison was intoxicated because his eyes were red and
glassy, his speech was slurred, and he was unsteady. See FAC, ECF No. 8,
PageID #72. Armitage instructed Dennison to pack his belongings and go to the
medical unit where medical staff questioned him. Dennison provided a urine
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Because Dennison signed the FAC on September 12, 2016, and it was mailed to the
court on September 14, 2016, it is deemed timely under the “prison mailbox rule.” See Houston
v. Lack, 487 U.S. 266, 271 (1988); Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009).
2

These facts are taken from the FAC and are accepted as true for the purposes of this
Order, but should not be construed as findings by the court.
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sample, that he asserts tested negative for drugs. Dennison was then placed in
segregation at WCF.
On November 19, 2015, Dennison was transferred to the HCF
administrative segregation unit to await a disciplinary hearing.
On November 20, 2015, Dennison received a Notice of Report of
Misconduct and Hearing, that charged him with violation of DPS Policy and
Procedure COR13.03 4.0.3 a.7(9), which prohibits:
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.
Lieutenant Monteilh investigated these charges.
On December 10, 2015, Monteilh chaired Dennison’s disciplinary hearing.
At the hearing, three officers testified that Dennison had appeared intoxicated on
November 18, 2016, because (1) his eyes were red and glassy; (2) he was shaking,
unsteady, confused, and dazed; and (3) his speech was slurred. Monteilh denied
Dennison’s request to introduce his medical records. Dennison alleges these
records would have shown that he had been treated several times before the
incident for irritated, red eyes (due to allergies) at HCF and WCF, thus, explaining
why his eyes were red.

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On December 17, 2015, Monteilh found Dennison guilty and sanctioned
him to thirty-days on “lockdown.” FAC, ECF No. 8, PageID #71. Dennison was
credited with his twenty-two days in administrative segregation and served the
remaining eight days in HCF Special Holding. He was released from Special
Holding on December 18, 2015.
On February 3, 2016, Warden Harrington upheld Monteilh’s decision and
denied Dennison’s grievance appeal. Id., PageID #75.
On or about February 8, 2016, the HPA denied Dennison parole based, at
least in part, on this misconduct. See id., PageID #80. The HPA recommended
that Dennison participate in all “recommended programs, i.e., work furlough and
etc.,” and scheduled another parole hearing for January 2017. Id.
On April 4, 2016, Dennison’s third-step appeal was denied. Id., PageID
#78.
Dennison seeks expungement of the disciplinary report, damages, and a new
parole hearing.
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
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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). During screening, the court sets conclusory
factual allegations aside, accepts non-conclusory factual allegations as true, and
then determines 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
of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556
U.S. at 679; Twombly, 550 U.S. at 555.
Courts must construe pro se “pleadings liberally . . . to afford the petitioner
the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)
(citations omitted). The district court “should not dismiss a pro se complaint
without leave to amend unless ‘it is absolutely clear that the deficiencies of the
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complaint could not be cured by amendment.’” Akhtar v. Mesa, 698 F.3d 1202,
1212 (9th Cir. 2012) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th
Cir. 1988) (per curiam)). Further, “the district court must provide the [pro se]
litigant with notice of the deficiencies in his complaint in order to ensure that the
litigant uses the opportunity to amend effectively.” Akhtar, 698 F.3d at 1212
(quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). “Without the
benefit of a statement of deficiencies, the pro se litigant will likely repeat previous
errors.” Karim Panahi v. L.A. Police Dep’t, 839 F.2d 621, 624 (9th Cir. 1988)
(quoting Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)). When “it is clear
that the complaint could not be saved by any amendment,” however, dismissal
with prejudice is allowed. 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.
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§ 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).
A.

Due Process
Dennison broadly complains that Defendants violated his right to due

process because (1) there was no evidence to support Armitage’s misconduct
report; (2) Monteilh both investigated his charges and chaired his disciplinary
hearing, allegedly in violation of DPS rules; (3) Monteilh denied Dennison’s
request to introduce evidence that his eyes were red due to allergies, and found
him guilty despite Dennison’s negative urinalysis; and (4) Harrington upheld
Monteilh’s decision and denied Dennison’s grievance.
Dennison was thereafter transferred to a higher security institution, his
custody classification was increased, the HPA denied him parole, and he alleges
he may not complete the HPA’s recommended programs before his next parole
hearing in January 2017. To be clear, Dennison does not allege that his full term
of sentence has been increased. Rather, he complains that he was denied parole
and his eligibility for early release on parole will be delayed. This claim fails for
several reasons.
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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
no liberty interest directly under the Constitution. Meachum, 427 U.S. at 225; see
also Hewitt, 459 U.S. at 466-70.
1.

No Liberty Interest Under the Due Process Clause

First, Dennison has no direct or state-created liberty interest in early release
on parole. See Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1,
7 (1979) (“There is no constitutional or inherent right of a convicted person to be
conditionally released before the expiration of a valid sentence.”); Mujahid v.
Apao, 795 F. Supp. 1020, 1024 (D. Haw. 1992); Rideout v. Haw. Paroling Auth.,
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2014 WL 1571286, at *3 (D. Haw. April 17, 2014) (recognizing that Hawaii’s
parole regime creates no liberty interest in parole and collecting District of Hawaii
cases).
Second, Dennison has no direct liberty interest in retaining a particular
custody status, remaining at a particular prison, or participating in rehabilitation or
educational programs. See Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976)
(holding prisoners have no liberty interest in a particular classification status or
rehabilitation); see also Olim v. Wakinekona, 461 U.S. 238, 244-48 (1983)
(holding prisoners have no right to remain in prison of choice or prevent a
transfer); Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir. 1985).
Because Dennison has no liberty interest in early release on parole, a
particular custody classification, rehabilitation programs, or remaining at WCF, he
has no right to the procedural due process requirements delineated in Wolff v.
McDonnell, 418 U.S. 539, 563-72 (1974).
2.

No State-created Liberty Interest

Dennison asserts that he was denied due process because Monteilh violated
DPS policies and procedures by investigating his charges and chairing his
disciplinary hearing. He further claims Monteilh violated state rules and

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regulations by denying Dennison’s request for unnamed witnesses and to
introduce evidence explaining his red eyes.
State rules and regulations may create a liberty interest in “freedom from
restraint which, while not exceeding the sentence in such an unexpected manner as
to give rise to protection by the Due Process Clause of its own force, nonetheless
imposes atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life.” Sandin, 515 U.S. at 484 (1995) (citations omitted);
Chappell, 706 F.3d at 1063.
Three factors generally determine atypical and significant hardship:
(1) whether the challenged action “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 the restraint
imposed; and
(3) whether the state’s action will invariably affect the duration of the
prisoner’s sentence.
Chappell, 706 F.3d at 1064 (citing Sandin, 515 U.S. at 486-87).
First, in light of the HPA’s letter setting another parole consideration
hearing in January 2017, it is clear that Dennison’s disciplinary sanction will not
inevitably lengthen the term of his sentence.

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Second, Dennison’s twenty-two day confinement in administrative
segregation alone does not show atypical and significant hardship sufficient to
create a right to due process. See Serrano v. Francis, 345 F.3d 1071, 1078 (9th
Cir. 2003) (“Typically, administrative segregation in and of itself does not
implicate a protected liberty interest.”). Nor does his eight-day confinement in
HCF Special Holding. See Sandin, 515 U.S. at 486 (finding thirty days in
disciplinary segregation at HCF did not constitute atypical or significant hardship
sufficient to invoke a state-created liberty interest); Richardson v. Runnels, 594
F.3d 666, 672 (9th Cir. 2010) (finding fifteen days disciplinary segregation did not
invoke a liberty interest). Short durations of segregation are rarely deemed
excessive or considered a major disruption to an inmate’s environment. Wilkinson
v. Austin, 545 U.S. 209, 223 (2005) (citing Sandin, 515 U.S. at 486).
Third, although given the opportunity to do so, Dennison again fails to
assert any facts comparing the conditions in administrative segregation and in
Special Holding with those in the HCF general population. See Order Dismissing
Complaint With Leave to Amend, ECF No. 7, PageID #33, 35. He therefore fails
to provide sufficient facts for the court to infer his confinement in segregation and
Special Holding created an atypical and significant hardship giving rise to a statecreated liberty interest.
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Dennison’s due process claims are again DISMISSED for failure to state a
claim. Because it is unclear whether Dennison can assert further facts to support
this claim, this dismissal is again with leave granted to amend.
3.

Claims Against Warden Harrington

Dennison provides no facts showing that WCF Warden Harrington had
control over the conditions of Dennison’s confinement in HCF segregation and
Special Holding. Harrington cannot, therefore, be held responsible for any
atypical or significant hardships that Dennison may have experienced at HCF.
Rather, Dennison’s due process claim against Warden Harrington is based solely
on Harrington’s denial of Dennison’s grievance. As the court informed Dennison,
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 Due Process Clause); Smith v.
Noonan, 992 F.2d 987, 989 (9th Cir. 1993).
Harrington did not violate due process when he denied Dennison’s
grievance. Dennison’s due process claims against Harrington are again
DISMISSED. Because Dennison was given leave to amend his claims against
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Harrington and has failed to allege any basis for Harrington’s liability beyond his
denial of the grievance, this dismissal is with prejudice.
B.

Equal Protection
Dennison alleges Defendants violated his right to equal protection under the

law because other inmates whose urinalysis tests were negative were not removed
from programs and housing at WCF. See FAC, ECF No. 8, PageID #74.
The Fourteenth Amendment provides that “[n]o state shall . . . deny to any
person within its jurisdiction the equal protection of the laws.” U.S. Const.
amend. XIV. To state an equal protection claim, “a plaintiff must show that the
defendants acted with an intent or purpose to discriminate against the plaintiff
based upon membership in a protected class.” Thornton v. City of St. Helens, 425
F.3d 1158, 1166 (9th Cir. 2005) (citation and internal quotation marks omitted);
Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013). If the action does not
involve a suspect classification, the plaintiff must show that similarly situated
people were intentionally treated differently without a rational basis for the
disparate treatment. Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000);
Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003).

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First, Dennison does not allege that he is a member of a protected class and
was intentionally treated differently because of his protected class.
Second, Dennison is not similarly situated to other inmates who simply
tested negative for drugs, because Dennison fails to allege that these other inmates
also exhibited other distinct signs of intoxication and were subjected to an
investigation and disciplinary hearing at which testimony was given that refuted
the negative urinalysis findings.
Third, this testimony from three correctional officers who observed
Dennison’s altered behavior notwithstanding his negative urinalysis, clearly
provides a rational basis for differing treatment among inmates who test negative
for drugs. 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
before November 28, 2016, that cures the deficiencies noted in this Order.
Dennison must comply with the Federal Rules of Civil Procedure and the Local
Rules for the District of Hawaii if he amends his pleading.

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An amended complaint generally supersedes the original complaint. See
Ramirez v. Cty. of San Bernadino, 806 F.3d 1002, 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.
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 may 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

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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). Specifically, Dennison’s due process
claims against Warden Harrington are DISMISSED WITH PREJUDICE.
Dennison’s remaining due process claims and equal protection claims are
DISMISSED WITH LEAVE TO AMEND.
(2) Dennison may file an amended complaint curing the deficiencies noted
above on or before November 28, 2016.
(3) Failure to timely amend and cure the pleading deficiencies noted herein
will result in dismissal of this action with prejudice for failure to state a claim, and
Dennison may incur a strike pursuant to 28 U.S.C. § 1915(g).
//
//

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(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, November 3, 2016.

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

Dennison v. Harrington, et al., 1:16-cv-00389 JMS/KJM jms scr’g 2016 (FAC DP drug test trsf)

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