Tiffany v. Byrne et al

Filing 18

ORDER that the First Amended Complaint ECF No. 15 is STRICKEN; plaintiff has until 07/21/2018 to file motion for leave to amend and attached proposed first amended complaint; if plaintiff chooses not to file an amended complain t, this action will proceed against defendant Belanger only; if amended complaint filed, the amended complaint will superseded the original complaint and will be screen in a separate screening order; Clerk directed to send plaintiff approved § 19 83 complaint form with instructions and a copy of the original complaint ECF No. 1 -1 (send to p via NNCC Law Library on 06/21/2018); plaintiff still required to timely file a response to Belanger's pending motion for summary judgment. Signed by Magistrate Judge William G. Cobb on 6/21/2018. (Attachments: # 1 Instructions, # 2 Form Civil Rights Complaint, # 3 Original Complaint)(Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DAVID J. TIFFANY,

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Case No. 3:16-cv-00612-MMD-WGC
Plaintiff,

v.

ORDER
Re: ECF No. 15

QUINTEN BYRNE, et al.,

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Defendants.

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Before the court is Plaintiff’s First Amended Complaint. (ECF No. 15.)
I. BACKGROUND

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Plaintiff filed his application to proceed in forma pauperis (IFP) and original complaint on

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October 21, 2016. (ECF Nos. 1, 1-1.) The court screened the complaint and issued an order on

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September 18, 2017, and: dismissed Count I, which alleged a due process violation related to a

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disciplinary hearing, with leave to amend; dismissed Count II with prejudice, which alleged a due

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process claim for mischaracterization of his appeal and for an alleged failure to investigate his

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appeal; and, allowed Count III to proceed against defendant Belanger, based on allegations that he

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did not receive the requisite notice and hearings in connection with the time spent in administrative

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segregation. (ECF No. 3.)

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On December 18, 2017, Plaintiff filed a document asking that his action proceed against

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defendant Belanger as he had not filed an amended complaint. (ECF No. 6.) On December 21,

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2017, the court issued an order stating that the action would proceed against defendant Belanger

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only on Count III. (ECF No. 7.) In addition, the case was stayed and the case was referred to the

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court’s Inmate Early Mediation Program. (Id.) The mediation took place on April 10, 2018, but

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was unsuccessful. (ECF No. 11.) Plaintiff’s IFP application was granted, and the Attorney

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General’s Office accepted service on behalf of Belanger on May 7, 2018. (ECF Nos. 13, 14.)

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Belanger had sixty days from the date of the order directing service (filed April 16, 2018) to file

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and serve an answer or other response. (ECF No. 13 at 3.)

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On June 14, 2018, Plaintiff filed a first amended complaint. (ECF No. 15.)

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The very next day, defendant Belanger filed a motion for summary judgment. (ECF Nos.

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16, 16-1 to 16-6.)
II. DISCUSSION
A party may amend its pleading once as a matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required, 21 days
after service of a responsive pleading or 21 days after service of a motion under
Rule 12(b), (e), or (f), whichever is earlier.
Fed. R. Civ. P. 15(a)(1)(A)-(B).

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Here, service was accepted on behalf of Belanger on May 7, 2018. The amended complaint

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was filed more than twenty-days after service was accepted. Therefore, amendment as a matter of

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course was not proper under Rule 15(a)(1)(A). In addition, to the extent Belanger’s motion for

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summary judgment could be construed as a responsive pleading, the amended complaint was filed

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before the filing of the motion for summary judgment and not after. As such, amendment as a

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matter of course was not proper under Rule 15(a)(1)(B).

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Therefore, Plaintiff was required to obtain Belanger’s consent or the court’s leave to file

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an amended complaint under Rule 15(a)(2). There is no indication that Belanger gave consent to

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the filing of the amended complaint; therefore, Plaintiff was required to file a motion for leave to

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amend, which did not occur.

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As a result, the first amended complaint (ECF No. 15), filed on June 14, 2018, will be

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stricken; however, Plaintiff will be given thirty days to file a motion for leave to amend and

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proposed amended complaint. Under Local Rule 15-1 the proposed amended complaint must be

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attached to the motion seeking leave of court to file the pleading. LR 15-1(a). The proposed

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amended complaint must be complete in and of itself without reference to the superseded pleading

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and must include copies of all exhibits referred to in the proposed amended pleading. If no motion

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is filed within the thirty-day timeframe, the complaint will proceed only as to Count III against

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Belanger, as set forth in the original screening order.

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The court notes that the first amended complaint that is being stricken as improvidently

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filed (ECF No. 15), names defendant Belanger in the caption but contains no factual allegations

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against Belanger in the body of the complaint such that if that amended pleading had been filed

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and screened, the court would not have allowed any claim to proceed against Belanger. Any

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proposed amended complaint must name each defendant in the caption, and contain factual

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allegations connecting that defendant to the alleged constitutional violation in the body of the

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complaint.

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The court undertook a preliminary review of the remaining allegations in first amended

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complaint that is being stricken and points out some deficiencies that may be taken into account if

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Plaintiff chooses to file a motion for leave to amend and proposed amended complaint. Plaintiff

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still disputes his disciplinary conviction, claiming that Officer Martin’s version of events that give

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rise to his disciplinary conviction—that Martin observed Plaintiff engaging in a sexual encounter

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with his cellmate—was false; that a hearing officer did not consider Plaintiff’s version of events;

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and that superiors Sandie and Foster should have corrected this wrong.

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As was stated in the original screening order, “[t]he requirements of due process are

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satisfied if some evidence supports the decision by the prison disciplinary board.” Superintendent

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Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455 (1985). “Ascertaining whether this standard is satisfied

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does not require examination of the entire record, independent assessment of the credibility of

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witnesses, or weighing the evidence. Instead, the relevant question is whether there is any evidence

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in the record that could support the conclusion reached by the disciplinary board.” Id. at 455-56.

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(citations omitted) (emphasis added). In Hill, the Supreme Court found that the evidence met the

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“some evidence” standard, noting that the disciplinary panel had received testimony from a prison

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guard and copies of a written report. Id. “The Federal Constitution does not require evidence that

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logically precludes any conclusion but the one reached by the disciplinary board. Instead, due

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process in this context requires only that there be some evidence to support the findings made in

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the disciplinary hearing.” Hill, 472 U.S. at 457. The court is “not to make its own assessment of

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the credibility of witnesses or reweigh the evidence.” Cato v. Rushen, 824 F.2d 703,705 (9th Cir.

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1987) (citing Hill, 472 U.S. at 455).

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In addition, courts have held that prisoners do not have a constitutionally protected

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guaranteed immunity from being falsely or wrongly accused of conduct which may result in the

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deprivation of a protected liberty interest, provided the due process requirements of Wolff are

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observed. See Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989); Freeman v. Rideout, 808

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F.2d 949, 951-52 (2d. Cir. 1986), cert. denied, 485 U.S. 982 (1988) (allegation that false evidence

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was planted by a prison guard does not state a constitutional claim where procedural process

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protections are provided); see also York v. Hernandez, 2011 WL2650243, at * n. 3 (N.D. Cal.

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2011) (where plaintiff alleged violation of due process rights by filing false charges against him,

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court stated, “without more, a prisoner has no constitutionally guaranteed immunity from being

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falsely or wrongly accused of conduct which may result in the deprivation of a protected liberty

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interest.”); Tafilele v. Harrington, 2011 WL2462750, at *7 (E.D. Cal. 2011); but see Hines v.

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Gomez, 108 F.3d 265 (9th Cir. 1997) (prisoner can allege the false report or conviction was

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retaliatory (in retaliation for exercising constitutional rights), which Plaintiff has not done here).

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Rather, the Fourteenth Amendment provides that a prisoner has a right not to be deprived of a

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protected liberty interest without due process of law. Sprouse, 870 F.2d at 452. Thus, as long as

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a prisoner receives proper procedural due process, a claim based on the falsity of disciplinary

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charges, standing alone, does not state a constitutional claim. Id.; see also Freeman, 808 F.2d at

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951; Hanrahan v. Lane, 747 F.2d 1137, 1140-41 (7th Cir. 1984).

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In sum, Plaintiff’s allegations in the first amended complaint being stricken would not have

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given rise to a viable claim under section 1983. Again, this should be taken into account should

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Plaintiff choose to pursue a motion for leave to amend and proposed amended complaint.

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Finally, absent a motion requesting an extension of time, Plaintiff is still required to timely

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file a response to Belanger’s pending motion for summary judgment, which is currently due July 6,

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2018.

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III. CONCLUSION

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IT IS HEREBY ORDERED THAT:

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(1) The First Amended Complaint (ECF No. 15) is hereby STRICKEN.

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(2) Plaintiff has THIRTY DAYS from the date of this Order to file a motion for leave to

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amend and attached proposed first amended complaint. If Plaintiff chooses not to file an amended

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complaint, this action will proceed against defendant Belanger on Count III only.

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(3) If Plaintiff chooses to file an amended complaint, the amended complaint supersedes

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the original complaint and, thus, the amended complaint must be complete in and of itself.

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Plaintiff’s amended complaint must contain all claims, defendants, and factual allegations Plaintiff

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wishes to pursue in this lawsuit, and must contain factual allegations connecting each named

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defendant to the alleged constitutional violation. Moreover, Plaintiff must file the amended

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complaint on the court’s approved prisoner civil rights form and it must be entitled “First Amended

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Complaint.”

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(4) The Clerk shall send Plaintiff the approved form for filing a section 1983 complaint,
instructions for the same, and a copy of the original complaint (ECF No. 1-1).
(5) If an amended complaint is filed, the court will screen the amended complaint in a
separate screening order, which may take several months.
(6) Absent a motion requesting an extension of time, Plaintiff is still required to timely file
a response to Belanger’s pending motion for summary judgment.
DATED: June 21, 2018.
__________________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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