Opinion
CASE No. 1:16-cv-01201-MJS (PC)
11-08-2016
MICHAEL CARTER, Plaintiff, v. W. BRODIE, et al., Defendants.
ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND
(ECF No. 8)
AMENDED COMPLAINT DUE WITHIN THIRTY (30) DAYS
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. He has consented to Magistrate Judge jurisdiction. (ECF No. 10.) No other parties have appeared in the action.
Plaintiff's complaint was dismissed for failure to state a claim, but he was given leave to amend. (ECF No. 7.) His first amended complaint (ECF No. 8) is before the Court for screening.
I. Screening Requirement
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous, malicious," or that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
II. Pleading Standard
Section 1983 "provides a cause of action for the deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).
To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).
A complaint 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). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Id. Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 677-78.
III. Plaintiff's Allegations
Plaintiff is incarcerated at Salinas Valley State Prison but complains of acts that occurred at Corcoran State Prison in Corcoran, California. He names the following defendants: Correctional Lieutenant W. Brodie in his official capacity, and Correctional Lieutenant Silva in his individual and official capacities. His allegations may be summarized essentially as follows:
Non-party psychologist Jack Alvord reported that Plaintiff had made threats against staff members. On September 21, 2015, Plaintiff was called to attend a Rules Violation Report ("RVR") disciplinary proceeding before Defendant Brodie regarding the allegations. Plaintiff was supposed to have a Staff Assistant, Correctional Officer I. Garza, present at the hearing. However, Garza was on vacation on September 21, 2015. Brodie nonetheless proceeded with the hearing and, afterward, falsely noted that Garza was present. During the hearing, Brodie refused to make Alvord available by phone for questioning, despite Plaintiff's insistence that he do so. Brodie found Plaintiff guilty of the alleged violation and assessed Plaintiff a thirty day loss of credits. Plaintiff subsequently learned that Brodie included in his report fabricated statements attributed to Plaintiff and Garza.
Plaintiff appealed the result of his disciplinary proceeding. The appeal was partially granted and the guilty finding was overturned.
The disciplinary charge was reissued and reheard by Defendant Silva. Plaintiff submitted questions to be posed to Alvord. The questions were not answered and Silva did not attempt to contact Alvord by phone, stating that he no longer worked at Corcoran. Plaintiff again was found guilty, resulting in a loss of good-time credits. Although Plaintiff submitted an appeal, he was transferred to another institution on July 7, 2016, and has been unable to determine the status of his appeal.
Plaintiff alleges Defendants violated his right to due process. He seeks money damages and a declaration that his rights were violated.
IV. Analysis
A. Due Process
The Due Process Clause protects prisoners from being deprived of liberty without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a cause of action for deprivation of procedural due process, a plaintiff must first establish the existence of a liberty interest for which the protection is sought. Liberty interests may arise from the Due Process Clause itself or from state law. Hewitt v. Helms, 459 U.S. 460, 466 (1983).
"Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply." Wolff, 418 U.S. at 556. The minimum procedural requirements that must be met in such proceedings are: (1) written notice of the charges; (2) at least 24 hours between the time the prisoner receives written notice and the time of the hearing, so that the prisoner may prepare his defense; (3) a written statement by the fact finders of the evidence they rely on and reasons for taking disciplinary action; (4) the right of the prisoner to call witnesses in his defense, when permitting him to do so would not be unduly hazardous to institutional safety or correctional goals; and (5) legal assistance to the prisoner where the prisoner is illiterate or the issues presented are legally complex. Id. at 563-71. As long as the five minimum Wolff requirements are met, due process has been satisfied. Walker v. Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995).
In addition, "some evidence" must support the decision of the hearing officer, Superintendent v. Hill, 472 U.S. 445, 455 (1985), and the evidence must have some indicia of reliability, Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987). The "some evidence" standard is not particularly stringent and the relevant inquiry is whether "there is any evidence in the record that could support the conclusion reached. . . ." Hill, 472 U.S. at 455-56 (emphasis added).
1. Defendant Brodie
The facts alleged regarding Defendant Brodie are nearly identical to those alleged in Plaintiff's initial pleading which the Court previously found were not cognizable.
The Court reiterates that Brodie may have denied Plaintiff the fourth and fifth protections announced in Wolff: the right to call witnesses in his defense and legal assistance that was determined to be appropriate for him. Nonetheless, Plaintiff's allegations fail to state a due process claim because his guilty finding later was overturned, and Plaintiff did not ultimately suffer any loss of credits as a result of the Defendant Brodie's conduct. Nor does Plaintiff specify and other loss attributable to the procedural defects in his RVR hearing. In these circumstances, Plaintiff has not suffered any actual injury as a result of the violation. E.g., Brown v. Marshall, No. CIV S-07-0956 MCE DAD P, 2012 U.S. Dist. LEXIS 27241 (E.D. Cal. Feb. 29, 2012) ("[P]laintiff's procedural due process claims related to either his first or second disciplinary proceedings have been rendered moot by the subsequent re-issuing and re-hearing of the rules violation charge against him"); Shotwell v. Brandt, No. C 10-5232 CW (PR), 2012 WL 6569402, at *3 (N.D. Cal. Dec. 17, 2012) (no due process violation where Plaintiff's RVR was ordered reissued and reheard, the plaintiff was found not guilty at the second hearing, and the plaintiff suffered no credit loss or any other punishment); see also Home v. Coughlin, 155 F.3d 26, 31, n. 3 (2d Cir. 1998) (finding the plaintiff's due process claims with regard to his first hearing were rendered null after the findings and penalties were vacated and a new hearing ordered, and plaintiff suffered no loss of good time credits and no disciplinary record); Morissette v. Peters, 45 F.3d 1119, 1122 (7th Cir. 1995) (court found no injury after a due process violation in the plaintiff's first disciplinary proceedings was subsequently remedied on administrative appeal and plaintiff's sentence was adjusted so that he served no additional time in segregation); Young v. Hoffman, 970 F.2d 1154, 1156 (2d Cir. 1992) (rejecting the plaintiff's due process claims where he was granted a new hearing and was never penalized for the underlying charges); Harper v. Lee, 938 F.2d 104, 105 (8th Cir. 1991) (rejecting the plaintiff's due process claims after he was granted a new hearing to cure the procedural violations and suffered no harm as a result of the initial violations).
Plaintiff was provided the opportunity to amend his complaint but was unable to cure noted defects. Further leave to amend appears futile.
2. Defendant Silva
Plaintiff has amended his complaint to add new claims against Defendant Silva. Although Plaintiff was advised that leave to amend was not given for the purpose of adding new claims, this claim appears to arise out of the same transaction or occurrence as the claim against Defendant Brodie. See Fed. R. Civ. P. 20(a)(2). Accordingly, it is addressed.
However, Plaintiff's claims against Defendant Silva appear premature because he was still in the process of pursuing his administrative remedies. Pursuant to the Prison Litigation Reform Act ("PLRA"), "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532 (2002). Because exhaustion must precede the filing of the complaint, compliance with § 1997e(a) is not achieved by exhausting administrative remedies while the lawsuit is pending. See McKinney, 311 F.3d at 1199.
"[I]nmates are not required to specially plead or demonstrate exhaustion in their complaints." Jones, 549 U.S. at 216. However, "in those rare cases where a failure to exhaust is clear from the face of the complaint," dismissal for failure to state a claim is appropriate, even at the screening stage. Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014). In the instant case, Plaintiff states that he filed an administrative grievance regarding the conduct of Defendant Silva and received a tracking number for his grievance. However, it appears his grievance was still pending at the time he filed his amended complaint. Accordingly, Plaintiff's failure to exhaust is plain from the face of the complaint.
Nevertheless, Plaintiff will be given leave to amend. If he chooses to file an amended complaint, he should plead facts to show that he has exhausted his administrative remedies or that such remedies were "effectively unavailable" to him. See Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010).
B. Declaratory Relief
In addition to damages, Plaintiff seeks declaratory relief, but because his claims for damages necessarily entail a determination whether his rights were violated, his separate request for declaratory relief is subsumed by those claims. Rhodes v. Robinson, 408 F.3d 559, 566 n.8 (9th Cir. 2005). Therefore, Plaintiff's claim for declaratory relief will be dismissed.
C. Official Capacity Claims
Plaintiff sues Defendant Silva in his individual and official capacities. Plaintiff cannot recover money damages from state officials in their official capacities. Aholelei v. Dept. of Public Safety, 488 F.3d 1144, 1147 (9th Cir. 2007) (citations omitted). Official capacity suits may seek only prospective relief. See Wolfson v. Brammer, 616 F.3d 1045, 1065-66 (9th Cir. 2010). Here, Plaintiff seeks only declaratory relief and money damages. As stated above, his claim for declaratory relief will be dismissed. He therefore may not proceed against Silva in his official capacity.
Additionally, official capacity claims must allege that a policy or custom of the governmental entity of which the official is an agent was the moving force behind the violation. See Hafer v. Melo, 502 U.S. 21, 25 (1991); Kentucky v. Graham, 473 U.S. 159, 166 (1985). Plaintiff must establish an affirmative causal link between the policy at issue and the alleged constitutional violation. See City of Canton, Ohio v. Harris, 489 U.S. 378, 385, 391-92 (1989); Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996); Oviatt v. Pearce, 954 F.2d 1470, 1473-74 (9th Cir. 1992). Here, Plaintiff identifies no policy or custom associated with the violation.
Plaintiff's official capacity claims will be dismissed.
V. Conclusion and Order
Plaintiff's first amended complaint does not state a cognizable claim for relief.
The Court will provide Plaintiff with one final opportunity to file an amended complaint that cures the noted deficiencies. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). If Plaintiff chooses to amend, his amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what each named Defendant did that led to the deprivation of Plaintiff's constitutional or other federal rights, Iqbal, 556 U.S. at 677-78. Although accepted as true, the "[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level . . . ." Twombly, 550 U.S. at 555. Further, Plaintiff is again reminded that he may not change the nature of this suit by adding new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).
Finally, an amended complaint supersedes the original complaint, Lacey v. Maricopa County, 693 F.3d 896, 927 (9th Cir. 2012), and must be "complete in itself without reference to the prior or superseded pleading," Local Rule 220.
Based on the foregoing, it is HEREBY ORDERED that:
1. Plaintiff's first amended complaint (ECF No. 8) is DISMISSED for failure to state a claim upon which relief may be granted,
2. The Clerk's Office shall send Plaintiff (1) a blank civil rights complaint form and (2) a copy of his first amended complaint filed September 29, 2016;
3. Within thirty (30) days from the date of service of this order, Plaintiff must file a second amended complaint curing the deficiencies identified by the Court in this order or a notice of voluntary dismissal; and
4. If Plaintiff fails to file an amended complaint or notice of voluntary
dismissal, the undersigned will dismiss this action, with prejudice, for failure to comply with a court order and failure to state a claim.IT IS SO ORDERED.
Dated: November 8, 2016
/s/ Michael J . Seng
UNITED STATES MAGISTRATE JUDGE