Vigoa Perez v. Cox et al

Filing 5

ORDER dismissing case; denying as moot IFP application 1 ; and denying as moot motion for counsel 1 -3. Case terminated. Signed by Judge Robert C. Jones on 6/30/15. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JOSE M. VIGOA PEREZ,

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Plaintiff,

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3:15-cv-00065-RCJ-WGC

vs.

ORDER

JAMES GREGORY COX et al.,

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Defendants.

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Plaintiff, who is a prisoner in the custody of the Nevada Department of Corrections

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(“NDOC”), submitted a civil rights complaint under 42 U.S.C. § 1983, filed an application to

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proceed in forma pauperis, and filed a motion for appointment of counsel. (ECF No. 1). The

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Court now screens Plaintiff’s civil rights complaint under 28 U.S.C. § 1915A.

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I.

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SCREENING STANDARD
Federal courts must conduct a preliminary screening in any civil case “in which a

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prisoner seeks redress from a governmental entity or officer or employee of a governmental

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entity.” 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and

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dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be

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granted, or seek monetary relief from a defendant who is immune from such relief. Id.

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§ 1915A(b)(1), (2). In addition to screening requirements under § 1915A, under the Prison

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Litigation Reform Act, the court must dismiss the case if “the allegation of poverty is untrue” or

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if the court determines the action “is frivolous or malicious; fails to state a claim on which relief

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may be granted; or seeks monetary relief against a defendant who is immune from such relief.”

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Id. § 1915(e)(2).

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Dismissal for failure to state a claim under § 1915A incorporates the standard for failure

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to state a claim under Federal Rule of Civil Procedure 12(b)(6). Nordstrom v. Ryan, 762 F.3d

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903, 908 (9th Cir. 2014). To survive § 1915A review, a complaint must “contain sufficient

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factual matter, accpeated as true, to state a claim to relief that is plausible on its face.” Id.

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(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The court liberally construes pro se civil

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rights complaints and may only dismiss them “if it appears beyond doubt that the plaintiff can

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prove no set of facts in support of his claim which would entitle him to relief.” Id.
In considering whether the complaint is sufficient to state a claim, all allegations of

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material fact are taken as true and construed in the light most favorable to the plaintiff. Wyler

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Summit P’ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted).

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Although the standard under Rule 12(b)(6) does not require detailed factual allegations, a

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plaintiff must provide more than mere labels and conclusions. Bell Atl. Corp. v. Twombly, 550

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U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient.

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Id. Unless it is clear the complaint’s deficiencies could not be cured through amendment, a pro

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se plaintiff should be given leave to amend the complaint with notice regarding the complaint’s

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deficiencies. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). To state a claim under

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42 U.S.C. § 1983, a plaintiff must allege “(1) the defendants acting under color of state law (2)

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deprived plaintiffs of rights secured by the Constitution or federal statutes.” Williams v.

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California, 764 F.3d 1002, 1009 (9th Cir. 2014) (quoting Gibson v. United States, 781 F.2d

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1334, 1338 (9th Cir. 1986)).

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II.

SCREENING OF COMPLAINT

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Plaintiff brings a complaint under 42 U.S.C. § 1983, asserting claims for violation of the

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Fourteenth Amendment Equal Protection Clause (count one) against Defendants James Gregory

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Cox, Harold Mike Byrne, and Renee Baker and for violation of the Fourteenth Amendment Due

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Process Clause (count two) against Defendant Dwayne Deal. (Compl. 5–8, ECF No. 1-1).

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Plaintiff seeks monetary relief. (Id. at 12).

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A. Count One

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Plaintiff alleges that from August 24, 2002 to October 22, 2003 he was housed as a “high

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risk potential” inmate at the Ely State Prison (“ESP”). (Id. at 5). Plaintiff alleges this is the most

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restrictive status and is reserved for inmates with serious NDOC violations. (Id.). According to

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Plaintiff, he was classified as a “high risk potential” inmate due to his “convictions[’] notoriety”

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and his attempted escape from the Clark County Detention Center. (Id.). However, Plaintiff

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contends that he has not committed any NDOC violations. (Id.).

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Plaintiff alleges that on October 24, 2003, he was no longer deemed a safety concern and

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therefore was reclassified as an “administrative segregation” inmate. (Id.). Plaintiff alleges that

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on October 24, 2004, he was reclassified as a “general population/close custody” inmate. (Id.).

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Plaintiff further alleges that on November 17, 2005, he once again was reclassified as “general

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population/close custody” because ESP did not have the security to hold him, which was later

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determined by the NDOC Central Office “to be inaccurate.” (Id. at 6).

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Plaintiff alleges that in August 2012, he began to seek a transfer from ESP to another

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institution under NDOC Regulation 521.03. (Id.). According to Plaintiff, during a full

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classification review, Defendant Harold Byrne, who is the Associate Warden, “outlined a list of

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stipulations for Plaintiff to complete in order to effectuate that transfer.” (Id. at 2, 6). The

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requirements allegedly were that Plaintiff “remain disciplinary free; continue exemplary

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behavior; maintain a cell mate; and complete all Department Anger Management Courses, enroll

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in Education Programs, and obtain High School Diploma.” (Id. at 6). Plaintiff contends that

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Defendants James Gregory Cox, the Director of Prisons, and Renee Baker, the Warden, also

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stipulated to these requirements. (Id. at 2, 6).

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Plaintiff contends that he has fulfilled all these requirements, but that he remains

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incarcerated at ESP. (Id. at 6). Plaintiff further contends that no other former “high risk

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potential” inmate at ESP was required to comply with the same requirements to effectuate a

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transfer and that these requirements are not part of NDOC’s regulations. (Id.). According to

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Plaintiff, numerous other similarly situated former “high risk potential inmates have been

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transferred out of Ely State Prison.” (Id.). Plaintiff alleges that the failure to transfer him violates

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the Fourteenth Amendment’s Equal Protection Clause. (Id. at 5–6).

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“The Equal Protection Clause of the Fourteenth Amendment commands that no State

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shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is

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essentially a direction that all persons similarly situated should be treated alike.” Lee v. City of

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L.A., 250 F.3d 668, 686 (9th Cir. 2001) (quoting City of Cleburne v. Cleburne Living Ctr., 473

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U.S. 432, 439 (1985)). “To state a claim under 42 U.S.C. § 1983 for violation of the Equal

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Protection Clause of the Fourteenth Amendment a plaintiff must show that the defendants acted

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with an intent or purpose to discriminate against the plaintiff based upon membership in a

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protected class.” Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013) (quotation omitted).

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The first step in determining whether officers violated a prisoner’s right to equal protection is “to

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identify the relevant class to which he belonged.” Id. “The groups must be comprised of

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similarly situated person so that the factor motivating the alleged discrimination can be

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identified.” Id. (quotation omitted). “An equal protection claim will not lie by conflating all

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persons not injured into a preferred class receiving better treatment than the plaintiff.” Id. at 1031

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(quotation omitted).

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Here, Plaintiff fails to plead facts sufficient to support his equal protection claim that he

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was treated differently from other prisoners with respect to transfers. Plaintiff does not allege

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that he is the member of any protected class or that others not of his class were given better

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treatment in regards to transfer preferences. Moreover, Plaintiff does not claim that Defendants

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acted with any intent or purpose to discriminate against him. It is far more plausible that

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Plaintiff has not been transferred due to limited availability in other correctional facilities or for

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some other legitimate reason. The fact that other prisoners may have received better treatment

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than Plaintiff with respect to transfers is insufficient to support an equal protection claim.

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Furnace, 705 F.3d at 1031.

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Indeed, decisions to transfer or not transfer a prisoner to a different facility or cell rarely

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support an equal protection claim. See Walker v. Beard, --- F.3d ---, 2015 WL 3773072, at *7–*8

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(9th Cir. June 18, 2015) (denying equal protection claim by prisoner who sought transfer for

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religious reasons); Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir. 1985) (stating that “Plaintiff’s

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assertion that his transfer would violate his . . . equal protection rights has no basis in law”);

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Duncan v. Madigan, 278 F.2d 695, 696 (9th Cir. 1960) (finding that the plaintiff’s contention

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that “his transfer denied him equal protection of the law” was “without basis” and had “no

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merit”). The Court finds that amendment would be futile and dismisses the claim with prejudice.

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B. Count Two

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Plaintiff alleges that on December 24, 2013, he was advised that because he had

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completed all of the requirements, a full classification hearing would be scheduled regarding his

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transfer. (Compl. 7). However, Plaintiff alleges that in January 2014, he was advised that

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Defendant Dwayne Deal, of the NDOC’s Offender Management Division, denied Plaintiff’s

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transfer request without giving a reason. (Id.). Plaintiff contends that a former ESP case worker

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told Plaintiff that Plaintiff was not labeled an escape risk or a threat to the safety or security of

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the prison, which is why he was removed from “high risk potential” status on two occasions, but

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that Plaintiff had “strong leadership abilities” and was a “concern” to the prison. (Id.). Plaintiff

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further contends he never received a classification hearing or any form of notice regarding his

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new status of being a “leader.” (Id.). According to Plaintiff, the fact he is considered to be a

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“leader” is why he remains classified as a “general population/close custody” inmate. (Id.).

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Plaintiff alleges the only reasons for denying his transfer is the nature of his original

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sentence and not his conduct and attitude since he has been incarcerated, which have improved.

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(Id. at 8). Plaintiff further alleges there is no justification for holding him in hard conditions,

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which include twenty-three hour lockdown, restricted privileges, no job opportunities, and no

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access to the gym, chapel, culinary facilities, main yard, tier, or law library. (Id.). Plaintiff

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contends that Defendant Dwayne Deal’s review and denial of his transfer request, without giving

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Plaintiff “an opportunity to test the purported basis for his continued confinement to close

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custody” violated Plaintiff’s Fourteen Amendment due process rights. (Id.).

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Under the Due Process Clause of the Fourteenth Amendment, the Government cannot

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deprive a person of “life, liberty, or property” without due process of law. U.S. Const. Amend.

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XIV. A due process claim exists “only when a constitutionally protected liberty or property

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interest is at stake.” Tellis v. Godinez, 5 F.3d 1314, 1316 (9th Cir. 1993). Prisoners do not have a

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liberty interest in being incarcerated at a particular correctional facility or being transferred from

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one facility to another. Olm v. Wakinekona, 461 U.S. 238, 245 (1983); Meachum v. Fano, 427

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U.S. 215, 225–27 (1976). Nor do prisoners have a liberty interest in their classification status.

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Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976). This is because “prison officials should be

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accorded wide-ranging deference in the adoption of policies and practices that in their judgment

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are needed to preserve internal order and discipline and to maintain institutional security.” Frost

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v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998) (quotation omitted).

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Given that prisoners have no liberty interest in being transferred to another prison,

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Plaintiff’s due process claim based on Defendant Dwayne Deal’s denial of his transfer request

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fails as a matter of law, and amendment would be futile. To the extent Plaintiff’s due process

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claim is based on his classification status, Plaintiff also does not have a liberty interest in his

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classification status. The Court therefore will dismiss count two with prejudice.

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CONCLUSION
IT IS HEREBY ORDERED that Plaintiff’s Fourteenth Amendment equal protection and

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due process claims are DISMISSED with prejudice, as amendment would be futile. The Clerk is

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ordered to close this case.

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IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to Proceed in forma
pauperis (ECF No. 1) is DENIED as moot.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Counsel (ECF No. 1-3) is
DENIED as moot.
IT IS SO ORDERED.

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Dated: _______________________
June 30, 2015

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_____________________________________
ROBERT C. JONES
United States District Judge
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