Opinion
No. 2:13-cv-2505-EFB P
07-24-2014
PHILIP JOHNSON, Plaintiff, v. M. WARMBRODT, et al., Defendants.
ORDER GRANTING IFP AND DISMISSING
COMPLAINT WITH LEAVE TO AMEND
PURSUANT TO 28 U.S.C. § 1915A
Plaintiff is a federal prisoner proceeding without counsel in an action brought for alleged violations of his civil rights. In addition to filing a complaint, plaintiff seeks leave to proceed in forma pauperis (IFP).
This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and is before the undersigned pursuant to plaintiff's consent. See E.D. Cal. Local Rules, Appx. A, at (k)(4).
Plaintiff's IFP application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. § 1915(b)(1) and (2).
Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted," or "seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b). When considering whether a complaint states a claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
To state a claim under § 1983, a plaintiff must allege: (1) the violation of a federal constitutional or statutory right; and (2) that the violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), provides a remedy for violation of civil rights by federal actors. Bivens established that "compensable injury to a constitutionally protected interest [by federal officials alleged to have acted under color of federal law] could be vindicated by a suit for damages invoking the general federal question jurisdiction of the federal courts [pursuant to 28 U.S.C. § 1331]." Butz v. Economou, 438 U.S. 478, 486 (1978). "Actions under [42 U.S.C.] § 1983 and those under Bivens are identical save for the replacement of a state actor under § 1983 by a federal actor under Bivens" Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991). An individual defendant is not liable on a civil rights claim unless the facts establish the defendant's personal involvement in the constitutional deprivation or a causal connection between the defendant's wrongful conduct and the alleged constitutional deprivation. See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978).
The court has reviewed plaintiff's complaints (ECF Nos. 1 and 7) pursuant to § 1915A and finds that they must be dismissed for failure to state a claim. Plaintiff alleges that he was falsely charged with rioting, refusing to give a urine sample, and refusing to obey an order. He claims he was placed in the security housing unit (SHU) as a result. After about twelve days, plaintiff spoke with the disciplinary hearing officer, who dropped the charges. Nevertheless, plaintiff apparently remained housed in the SHU for another 16 days. The "total time [plaintiff] stayed in the SHU for the false charges was about 29 days." ECF No. 1 ¶ 4. During these 29 days, plaintiff claims he (1) was confined to his cell for 23 hours a day, (2) could not participate in group recreational activities, religious activities, vocational programs, educational programs, or legal work (3) could not use recreational equipment, the education department, or the law library, (4) could not watch television and could not e-mail, (5) could not buy the commissary goods available to general population inmates, (6) was unable to make a phone call more than once a month, (7) was unable to communicate with certain prison staff, (8) was unable to use the regular visiting procedures, and (9) was unable to use more than 98% of his property. Plaintiff claims that his constitutional right to due process has been violated.
To state a claim for violation of the right to procedural due process, plaintiff must allege facts showing: "(1) a deprivation of a constitutionally protected liberty or property interest, and (2) a denial of adequate procedural protections." Kildare v. Saenz, 325 F.3d 1078, 1085 (9th Cir. 2003). "The Due Process Clause standing alone confers no liberty interest in freedom from state action taken 'within the imposed sentence.'" Sandin v. Conner, 515 U.S. 472, 480 (1995). While "prisoners do not shed all constitutional rights at the prison gate, . . . lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights . . . ." Id. at 485 (internal quotations and citations omitted). "Discipline by prison officials in response to a wide range of misconduct falls within the expected parameters of the sentence imposed by a court of law." Id. See also Toussaint v. McCarthy, 801 F.2d 1080, 1091-92 (9th Cir. 1986) (administrative segregation falls within the terms of confinement ordinarily contemplated by a sentence). In a prison setting, a liberty interest is recognized and protected where the conditions of confinement impose a hardship that is atypical and significant in relation to the ordinary incidents of prison life. Sandin, 515 U.S. at 485.
In analyzing whether a hardship is atypical and significant, courts may consider: (1) whether the challenged conditions "mirror" those imposed upon inmates in administrative segregation and protective custody; (2) the duration and degree of the conditions; and (3) whether the state's action will invariably affect the duration of the prisoner's sentence. Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003).
Here, plaintiff alleges he was denied various privileges while confined to the SHU for 29 days. Numerous cases have held that there is no protected liberty interest in avoiding such limited periods of administrative segregation. Compare Sandin, 515 U.S. at 486 (30 days disciplinary segregation is not atypical and significant) with Wilkinson v. Austin, 545 U.S. 209, 223-24 (2005) (indefinite solitary confinement in harsh conditions, combined with revocation of parole eligibility held sufficient to invoke Due Process protections). Plaintiff's allegation that he was subject to lockdown-type conditions and denied certain privileges for 29 days is insufficient to state a claim under the high standard set forth in Sandin. Indeed, numerous courts have found that conditions comparable to or worse than those alleged here did not present the type of atypical, significant deprivation in which a protected liberty interest would arise. See, e.g., Hewitt v. Helms, 459 U.S. 460, 467 & n.4 (1983), abrogated in part on other grounds by Sandin, 515 U.S. at 480-84 (even "severe hardships" imposed by segregation, such as "denial of access to vocational, educational, recreational, and rehabilitative programs, restrictions on exercise, and confinement to [one's] cell for lengthy periods of time," do not give rise to a protected liberty interest); Ortiz v. Thomas, No. CV 09-0396-PHX-MHM, 2009 U.S. Dist. LEXIS 29891, at *10-11 (D. Ariz. Mar. 25, 2009) (seven months in administrative segregation, on lockdown 23 hours a day, five days a week, is not atypical and significant); Medina v. Dickinson, No. 2:10-cv-0502-LKK-AC, 2013 U.S. Dist. LEXIS 9166, at *26-27 (E.D. Cal. Jan. 23, 2013) (nine months in administrative segregation, accompanied by a loss of visiting privileges and access to educational and vocational programs, "are not atypical and significant hardships when compared to the burdens of ordinary prison life"); Howard v. DeAzevedo, No. 1:11-cv-00101-AWI-SKO, 2012 U.S. Dist. LEXIS 21555, at *16 (E.D. Cal. Feb. 20, 2012) ("Plaintiff does not have a protected liberty interest in the loss of yard for ten days or in the loss of TV and radio privileges [for thirty days]").
Moreover, plaintiff's allegation that he was placed in the SHU on "false charges" does not, in and of itself, implicate a constitutional right. See Rupe v. Beard, No. CV-08-2454-EFS, 2013 U.S. Dist. LEXIS 180415, at *24 (E.D. Cal. Dec. 23, 2013) ("While Plaintiff maintains that he was charged with false reports, the Due Process Clause does not make one free from false accusations, but merely provides procedural protections to defend against false accusations"); Hysell v. Schwarzenegger, No. 1:10-cv-1233-AWI-GBC, 2011 U.S. Dist. LEXIS 72243, at *13-14 (E.D. Cal. July 6, 2011) ("in general, prison officials' housing and classification decisions do not give rise to federal constitutional claims encompassed by the protection of liberty and property guaranteed by the Fifth and Fourteenth Amendments").
Plaintiff also claims he was "retaliated" against for refusing to sign a piece of paper. To state a viable First Amendment retaliation claim, a prisoner must allege five elements: "(1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal." Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). Conduct protected by the First Amendment includes communications that are "part of the grievance process." Brodheim v. Cry, 584 F.3d 1262, 1271 n.4 (9th Cir. 2009). If plaintiff intends to assert a retaliation claim, he must specifically identify the protected conduct at issue and plead that the allegedly adverse action was taken "because of" that conduct.
For these reasons, plaintiff fails to state a claim upon which relief may be granted. Although it appears unlikely that plaintiff can state a cognizable claim for relief, the court will grant plaintiff an opportunity to cure the defects in his pleading. In addition to the requirements set forth herein, any amended complaint must specifically allege what procedural protections, if any, plaintiff contends he was denied prior to or during his placement in the SHU.
Should plaintiff choose to file an amended complaint, the amended complaint shall clearly set forth the claims and allegations against each defendant and may not exceed the scope of this order. It must also allege a cognizable legal theory against a proper defendant and sufficient facts in support of that cognizable legal theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must afford pro se litigants an opportunity to amend to correct any deficiency in their complaints).
Additionally, any amended complaint must be written or typed so that it is complete in itself without reference to any earlier filed complaint. E.D. Cal. Local Rule 220. This is because an amended complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 F.3d 1467, 1474 (9th Cir. 1997) (the "'amended complaint supersedes the original, the latter being treated thereafter as non-existent.'") (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967)).
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's application to proceed in forma pauperis (ECF No. 2) is granted.
2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in accordance with the notice to the Federal Bureau of Prisons filed concurrently herewith.
3. The complaint is dismissed with leave to amend within 30 days. The amended complaint must bear the docket number assigned to this case and be titled "Second Amended Complaint." Failure to comply with this order may result in a dismissal of this action for failure to state a claim upon which relief may be granted.
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EDMUND F. BRENNAN
UNITED STATES MAGISTRATE JUDGE