Opinion
No. 2:13-cv-1931 KJN P
11-15-2013
MICHAEL AARON WITKIN, Plaintiff, v. GARY SWARTHOUT, et al., Defendants.
ORDER
Plaintiff is a state prisoner proceeding without counsel. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). Plaintiff consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c
Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
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 or malicious," 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).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) ("a judge may dismiss [in forma pauperis] claims which are based on indisputably meritless legal theories or whose factual contentions are clearly baseless."); Franklin, 745 F.2d at 1227.
Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In order to survive dismissal for failure to state a claim, a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic, 550 U.S. at 555. However, "[s]pecific facts are not necessary; the statement [of facts] need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal quotations marks omitted). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).
Plaintiff's forty page complaint alleges multiple constitutional violations against six defendants.
Access to the Courts
Prisoners do not have a "freestanding right" to access the law library or to legal assistance. Lewis v. Casey, 518 U.S. 343, 351 (1996). Law libraries and legal assistance programs are only the means of ensuring that a prisoner's fundamental right to access the courts is preserved. Id. The right to access to the courts includes the right to receive basic tools such as pens and paper where they are necessary to filing the action. Bounds v. Smith, 430 U.S. 817, 821 (1977), limited in part on other grounds by Lewis, 518 U.S. at 354. This access also includes a means of making accurate copies, where they are required to file a pleading. Allen v. Sakai, 48 F.3d 1082, 1089 (9th Cir. 1994). However, the United States Supreme Court found the right to access the courts
does not guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip-and-fall claims. The tools it requires to be provided are those that the inmates need in order to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement. Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration.Lewis v. Casey, 518 U.S. at 355.
In addition, Supreme Court law does not dictate a minimum number of hours or any other requirement for satisfying the right of access to law libraries or legal assistance. Vandelft v. Moses, 31 F.3d 794, 796 (9th Cir. 1994); Walker v. Mintzes, 771 F.2d 920, 931 (6th Cir. 1985) (stating that the Supreme Court in Bounds did not prescribe a specific amount of library time). Several courts have refused to find constitutional violations where inmates' access to law libraries was restricted. See, e.g., Rhinehart v. Gomez, 1995 WL 364339 (N.D. Cal. June 8, 1995) (finding no denial of access to courts where prisoner could access law library for two hours every two weeks); Magee v. Waters, 810 F.2d 451, 452 (4th Cir. 1987) (finding one hour per week in law library of city jail did not violate inmate's constitutional rights). But cf. Williams v. Leeke, 584 F.2d 1336, 1338, 1340 (4th Cir. 1978) (finding three forty-five minute library sessions per week to be inadequate access); United States v. Janis, 820 F. Supp. 512, 515 (S.D. Cal. 1992) (ordering that inmate representing himself in criminal trial be given library access ten hours per week if requested). Restrictions allowing two hours of library access per week for inmates without court deadlines and four hours per week for those with verified deadlines, were held to be "reasonable as a matter of law" by another district court. Zatko v. Rowland, 835 F. Supp. 1174, 1177 (N.D. Cal. 1993).
To state a claim for denial of access to the courts, a plaintiff must allege a specific actual injury involving a nonfrivolous legal claim, Lewis v. Casey, 518 U.S. at 351-55, and must allege facts showing that he "could not present a claim to the courts because of the [defendants'] failure to fulfill [their] constitutional obligations." Allen, 48 F.3d at 1091. There are two types of access-to-court claims: backward-looking and forward-looking. See Christopher v. Harbury, 536 U.S. 403, 413-14 (2002). A backward-looking claim concerns a lost opportunity to litigate, whereas a forward-looking claim concerns "official action [that] is presently denying an opportunity to litigate for a class of potential plaintiffs." Id. at 413. Here, plaintiff claims he was impaired in his ability to prosecute his habeas corpus actions because he was prevented from filing objections. Thus, he is making a backward-looking claim.
To plead a backward-looking denial of access claim, plaintiff must allege three elements. First, he must show he suffered an "actual injury." Lewis v. Casey, 518 U.S. at 348. An "actual injury" is "actual prejudice with respect to contemplated or existing litigation, such as the inability to meet a filing deadline or to present a claim." Id. The failure to demonstrate an actual injury is jurisdictional. Alvarez v. Hill, 518 F.3d 1152, 1155 n.1 (9th Cir. 2008) ("Failure to show that a 'nonfrivolous legal claim had been frustrated' is fatal to his Bounds claim"). To suffer an actual injury, the underlying litigation which was impeded must be non-frivolous. To demonstrate this fact, the underlying claim must be set forth in the pleading "as if it were being independently pursued." Christopher, 536 U.S. at 417. Second, plaintiff must allege prison officials frustrated the litigation, and third, he must show that a remedy is not otherwise available in a future suit. Id. at 413-15.
Here, plaintiff has not met the threshold requirement of demonstrating that he was constitutionally entitled to access the law library. Plaintiff states he was impaired in his ability to file objections to findings and recommendations in a habeas proceeding, but this was not during the pleading stage of the proceedings. See Lewis v. Casey, 518 U.S. at 354-55; Madrid v. Gomez, 190 F.3d 990, 995 (9th Cir. 1999); Cornett v. Donovan, 51 F.3d 894, 898 (9th Cir. 1995) ("[W]e conclude the Supreme Court has clearly stated that the constitutional right of access requires a state to provide a law library or legal assistance only during the pleading stage of a habeas or civil rights action."). Rather, plaintiff contends his law library access was impaired from January 29, 2013, to February 1, 2013, and that he "was denied critical hours of research time which prejudiced his objections and caused [Witkin v. Yates, Case No. 2:10-cv-0091 GEB DAD (E.D. Cal.)] to be dismissed." (ECF No. 1 at 7.) Because the impairment did not occur during the pleading stage, plaintiff fails to state a cognizable access to the courts claim.
In addition, review of the docket in Case No. 2:10-cv-0091 GEB DAD, reflects that the plaintiff had multiple opportunities to file briefs; indeed, the court referred to plaintiff's filings as "voluminous," and ordered two rounds of supplemental briefing at different times in the proceedings. Id. (ECF No. 69 at 4.) Findings and Recommendations issued on January 30, 2013. Id. Plaintiff filed objections on February 15, 2013, and filed an amendment to his objections on February 26, 2013, both of which the district court considered in reviewing the findings and recommendations. Id. (ECF Nos. 70, 71.)
Moreover, plaintiff's petition for writ of habeas corpus was dismissed because it was filed beyond the statute of limitations period. Id. (ECF Nos. 69, 72.) The court found the statute of limitations period expired on June 23, 2008, and plaintiff did not file his federal petition until December 9, 2009, almost one and a half years too late. Id. (ECF No. 69 at 7-8.) Also, the district court declined to issue a certificate of appealability. Id. Thus, plaintiff cannot demonstrate actual injury based on the dismissal of his habeas petition in Case No. 2:10-cv-0091 GEB DAD, because the action was dismissed as time-barred, and not as a result of plaintiff's alleged missed opportunity to adequately research his objections to the findings and recommendations.
Plaintiff's failure to demonstrate an actual injury is jurisdictional. Alvarez, 518 F.3d at 1155 ("Failure to show that a "nonfrivolous legal claim had been frustrated" is fatal"). Thus, plaintiff should not renew his access to the courts claim in any amended complaint.
Outdoor Exercise
Plaintiff contends that he was denied access to outdoor exercise from March 8, 2013, to June 6, 2013. Plaintiff claims he suffered back pain, neck pain, headaches, muscle aches, lethargy, and respiratory problems during this period. (ECF No. 1 at 9 n.3.) Plaintiff alleges this deprivation violated his Eighth and Fourteenth Amendment rights.
The Eighth Amendment prohibits the infliction of "cruel and unusual punishments." U.S. Const. amend. VIII. The "unnecessary and wanton infliction of pain" constitutes cruel and unusual punishment prohibited by the United States Constitution. Whitley v. Albers, 475 U.S. 312, 319 (1986). Neither accident nor negligence constitutes cruel and unusual punishment, as "[i]t is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause." Whitley, 475 U.S. at 319. What is needed to show unnecessary and wanton infliction of pain "varies according to the nature of the alleged constitutional violation." Hudson v. McMillian, 503 U.S.1, 5 (1992) (citing Whitley, 475 U.S. at 320). To prevail on an Eighth Amendment claim, the plaintiff must show, objectively, that he suffered a "sufficiently serious" deprivation. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Wilson v. Seiter, 501 U.S. 294, 298-99 (1991). The plaintiff must also show that each defendant had, subjectively, a culpable state of mind in causing or allowing plaintiff's deprivation to occur. Farmer, 511 U.S. at 834.
Outdoor exercise is a basic human need protected by the Eighth Amendment, and the denial of outdoor exercise may violate the Constitution, depending on the circumstances. Richardson v. Runnels, 594 F.3d 666 (9th Cir. 2010); Norwood v. Vance, 591 F.3d 1062, 1070 (9th Cir. 2010). While the "temporary denial of outdoor exercise with no medical effects is not a substantial deprivation," Norwood, 591 F.3d at 1070 (internal quotation and citation omitted), when an inmate alleges the denial of constitutionally adequate outdoor exercise, the inquiry is fact specific. In determining whether a deprivation of outdoor exercise is sufficiently serious, the Court must consider the circumstances, nature, and duration of the deprivation. Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979).
The Ninth Circuit has clarified the elements necessary to state a deprivation that would rise to the level of an Eighth Amendment violation:
An Eighth Amendment claim that a prison official has deprived inmates of humane conditions must meet two requirements, one objective and one subjective. Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir. 1995). "Under the objective requirement, the prison official's acts or omissions must deprive an inmate of the minimal civilized measure of life's necessities. The subjective requirement, relating to the defendant's state of mind, requires deliberate indifference." Id. (citations omitted).Lopez v. Smith, 203 F.3d 1122, 1132-33 (9th Cir. 2000). Nevertheless, "the Ninth Circuit has not identified a specific minimum amount of weekly exercise that must be afforded" under the Eighth Amendment." Jayne v. Bosenko, 2009 WL 4281995, at *8 (E.D. Cal. Nov. 23, 2009) (citation omitted). Indeed, complete denial of outdoor exercise for a month is not unconstitutional. Hayward v. Procunier, 629 F.2d 599, 603 (9th Cir. 1980) (denial of yard time for a month not unconstitutional); May v. Baldwin, 109 F.3d 557, 565-66 (9th Cir. 1997) (denial of yard time for 21 days not unconstitutional). However, in Lopez v. Smith, the Ninth Circuit found that plaintiff's claim that he was denied all outdoor exercise for six and a half weeks met the objective requirement for an Eighth Amendment claim. Id. 203 F.3d at 1132-33. Furthermore, for a temporary denial of exercise to be actionable, plaintiff must demonstrate an adverse medical impact. Id., 203 F.3d at 1133 n.15 ("the clear implication of May [v. Baldwin] is that temporary denials of outdoor exercise must have adverse medical effects to meet the Eighth Amendment test, while long-term deprivations are substantial regardless of effects.").
Here, plaintiff alleges he was deprived of outdoor exercise for almost three months. Thus, plaintiff's allegations meet the objective requirement for an Eighth Amendment claim. However, plaintiff fails to allege facts demonstrating that each defendant named in connection with this claim acted with a culpable state of mind. It appears plaintiff may be able to state a cognizable Eighth Amendment claim as to defendant Sanchez inasmuch as defendant Sanchez issued the order depriving plaintiff of the right to exercise, and defendant Sanchez was allegedly informed during his telephone conversation with defendant Wilkinson that plaintiff had a constitutional right to outdoor exercise, yet defendant Sanchez did not modify the ordered deprivation. However, plaintiff does not include sufficient factual allegations to demonstrate that defendants Swarthout, Young, Popovits and Wilkinson were deliberately indifferent to plaintiff's right to outdoor exercise. Accordingly, plaintiff should only renew this claim in his amended complaint as to those defendants for whom he can allege facts that meet the above standards.
In addition, plaintiff's claims regarding the deprivation of outdoor exercise are more appropriately governed by the Eighth Amendment, not by substantive due process. Plaintiff properly invoked the Eighth Amendment to challenge issues related to his denial of outdoor exercise. The viability of his Eighth Amendment claims means that his Fourteenth Amendment claims are duplicative. See Graham v. Poole, 476 F. Supp.2d 257, 261 (W.D. N.Y. 2007). The Supreme Court has explained that "if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process." County of Sacramento v. Lewis, 523 U.S. 833, 843 (1998) (quoting Lanier v. United States, 520 U.S. 259, 272 n.7 (1997)). The Fourteenth Amendment offers plaintiff no greater protection than the Eighth Amendment. See Whitley, 475 U.S. at 312 (in excessive force case, Eighth Amendment serves as the primary source of protection); Murphy v. Dowd, 975 F.2d 435 (9th Cir. 1992) (prisoner's Fourteenth Amendment claim concerning conditions of confinement subsumed by Eighth Amendment claim). Thus, plaintiff need not raise the Fourteenth Amendment in connection with this allegation that he was denied his right to outdoor exercise in violation of the Eighth Amendment.
Work vs. Law Library Access
Plaintiff contends that he was required to choose between working at his prison job and using the prison law library, which he alleges violates his constitutional rights. Plaintiff states that he is required to give up approximately fifty percent of his possible library access, or to surrender his work program assignment in exchange for unfettered court access. (ECF No. 1 at 11.) Plaintiff relies on Allen v. City and County of Honolulu, 39 F.3d 936, 940 (9th Cir. 1994) (denial of summary judgment affirmed where inmate was housed in the special housing unit of the prison, and was forced to choose between two clearly established rights: the right to outdoor exercise and the right to law library access). Plaintiff seeks injunctive relief enjoining defendants from enforcing the prison's policy that allegedly requires inmates to surrender their prison work assignments to attend the law library. (ECF No. 1 at 11.) In a subsequent filing, plaintiff notes that he successfully negotiated a job change such that his work hours no longer conflict with times the law library is open. (ECF No. 5.)
A plaintiff seeking injunctive relief "must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Natural Resources Defense Council, Inc., 55 U.S. 7, 20 (2008) (citations omitted). An injunction may only be awarded upon a clear showing that the plaintiff is entitled to relief. Id. at 22 (citation omitted).
In Hebbe v. Pliler, 627 F.3d 338, 343 (9th Cir. 2010), the Ninth Circuit found that forcing a prisoner to choose between using the prison law library and exercising outdoors is impermissible because an inmate cannot be forced to sacrifice one constitutionally protected right for another. But an inmate does not have a constitutional right to work. Baumann v. Arizona Dep't of Corrections, 754 F.2d 841, 845 (9th Cir. 1985). Thus, plaintiff was not deprived of a constitutional right by having to choose between work or attending the law library. Moreover, prisoners do not have a "freestanding right" to access the law library. Lewis v. Casey, 518 U.S. at 351. As set forth above, the Supreme Court does not dictate that prisoners must be provided a certain amount of access to prison law libraries. Because plaintiff's claim lacks merit, his motion for injunctive relief is denied, and plaintiff should not renew this claim in his amended complaint.
Similarly, plaintiff's equal protection and state law claims which plaintiff pled based on his allegations that his work program precluded unfettered law library access are also unavailing and should not be included in any amended complaint.
Retaliation
Plaintiff raises multiple allegations that defendants retaliated against him.
In the prison context, allegations of retaliation against a prisoner's First Amendment rights to speech or to petition the government may support a section 1983 claim. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). "[A] viable claim of First Amendment retaliation entails five basic 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). An allegation of retaliation against a prisoner's First Amendment right to file a prison grievance is sufficient to support a claim under section 1983. Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003). Retaliatory motive may be shown by the timing of the allegedly retaliatory act and inconsistency with previous actions, as well as direct evidence. Id. at 1288-89.
Prisoner retaliation claims should be evaluated in light of Sandin v. Conner, 515 U.S. 472 (1995), in which the Supreme Court expressed disapproval of excessive judicial involvement in day-to-day prison management. Pratt, 65 F.3d at 807.
In particular, the Supreme Court noted "the view expressed in several of our cases that federal courts ought to afford appropriate deference and flexibility to state officials trying to manage a volatile environment," especially with regard to "the fine-tuning of the ordinary incidents of prison life, a common subject of prisoner claims" under section 1983. Sandin, 515 U.S. at 482-83.
Here, plaintiff claims defendant Kosher allegedly retaliated against plaintiff "because of his verbal objection to her November 3 assault on him" and demonstrated by her when she began enforcing her library access policy against plaintiff. (ECF No. 1 at 20) This allegation fails to state a claim of retaliation because it does not relate to protected conduct, as contemplated under Rhodes v. Robinson. Moreover, plaintiff was not deprived of all access to the law library, but alleges that defendant Kosher began enforcing an existing policy that only limited plaintiff's access. Therefore, plaintiff should not renew this claim in his amended complaint.
However, plaintiff states a potentially cognizable retaliation claim against defendant Kosher based on plaintiff's allegations that Kosher ejected plaintiff from the library, denied plaintiff PLU status, and wrote a rules violation report against plaintiff in retaliation for plaintiff filing grievances. These claims against defendant Kosher may be renewed in his amended complaint.
Plaintiff also claims that defendants Sanchez, Young, and Popovits violated plaintiff's First and Fourth Amendment rights by initiating prison disciplinary proceedings without probable cause in order to discourage plaintiff from seeking redress through prison grievances. (ECF No. 1 at 22.) However, plaintiff fails to identify which prison disciplinary these defendants allegedly initiated, and fails to allege specific facts as to each defendant's specific involvement therewith. Moreover, prison inmates have very limited Fourth Amendment protections. Plaintiff fails to explain how his Fourth Amendment rights were violated. It is unclear from plaintiff's vague allegations whether plaintiff can state cognizable First or Fourth Amendment claims against defendants Sanchez, Young and Popovits in connection with their alleged roles in the prison disciplinary process.
In addition, plaintiff claims that defendant Wilkinson wrote a rules violation report against plaintiff "because [plaintiff] protested [Wilkinson's] denial of his Eighth Amendment rights." (ECF No. 1 at 25.) Plaintiff alleges that defendant Wilkinson searched plaintiff's bed area on March 21, and claimed that there was "a state sheet hanging" from plaintiff's bed, and that she had observed this misconduct on March 14 and March 20, and therefore issued the rules violation report ("RVR"). (ECF No. 1 at 10.) Plaintiff complains that defendant Wilkinson failed to first write a CDC-128A, rather than immediately issue a CDC-115, which he claims was mandatory, and contends he had witness statements confirming nothing was hanging from his bunk on March 21. (Id.) The necessary elements of a retaliation claim are set forth above. Plaintiff's allegations, without more, fail to state a cognizable retaliation claim against defendant Wilkinson.
Challenges to Prison Disciplinary Proceedings
Plaintiff claims that he was subjected to disciplinary proceedings that were based on false information, and that he was subjected to at least one hearing in which proper procedures were not followed.
"A prisoner has no constitutionally guaranteed immunity from being wrongly or falsely accused of conduct which may result in the deprivation of a protected liberty interest." Lopez v. Celaya, 2008 WL 205256 at *5 (N.D. Cal. Jan. 23, 2008), citing, inter alia, Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989). Although the filing of a false disciplinary action against an inmate is not a per se civil rights violation, there are two ways that allegations that an inmate has been subjected to a false claim can state a cognizable civil rights claim. The first is when the inmate alleges that the false report was in retaliation for the exercise of a constitutionally protected right under the First Amendment. See Hines v. Gomez, 108 F.3d 265 (9th Cir. 1997) (retaliation claim must rest on proof that defendant filed disciplinary action in retaliation for inmate's exercise of his constitutional rights and that the retaliatory action advanced no legitimate penological interest); Newsom v. Norris, 888 F.2d 371, 377 (6th Cir. 1989). The second is when the inmate is not afforded the procedural due process required by the due process clause in connection with the issuance and hearing of disciplinary reports. See Hanrahan v. Lane, 747 F.2d 1137, 1141 (7th Cir. 1984) (claim that prison guard planted false evidence which resulted in disciplinary infraction fails to state a cognizable civil rights claim where procedural due process protections are provided).
"The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property." Board of Regents v. Roth, 408 U.S. 564, 569 (1972). State statutes and prison regulations may grant prisoners liberty interests sufficient to invoke due process protection. Meachum v. Fano, 427 U.S. 215, 223-27 (1976). However, the Supreme Court has significantly limited the instances in which due process can be invoked. Pursuant to Sandin, 515 U.S. at 483, a prisoner can show a liberty interest at stake under the Due Process Clause of the Fourteenth Amendment only if he alleges a change in confinement that imposes an "atypical and significant hardship . . . in relation to the ordinary incidents of prison life." Id. at 484 (citations omitted); Neal v. Shimoda, 131 F.3d 818, 827-28 (9th Cir. 1997).
Specifically, when a liberty interest has been implicated as the result of a disciplinary charge, the Fourteenth Amendment requires prison officials to provide the prisoner with: (1) written notice of the charges at least 24-hours before the hearing; (2) the opportunity to appear in person at the hearing, to call witnesses, and to present rebuttal evidence; and (3) a written statement by the factfinders of the evidence relied on for their decision and the reasons for the action taken by the committee. Wolff v. McDonnell, 418 U.S. 539, 564-66 (1974); Neal, 131 F.3d at 830; Freeman v. Rideout, 808 F.2d 949, 952 (2d Cir. 1986) ("Although prisoners are entitled to be free from arbitrary action and conduct of prison officials, the protections against arbitrary action 'are the procedural due process requirements as set forth in Wolff v. McDonnell.'"). Once these protections have been provided, due process is satisfied if there is any evidence in the record that could support the conclusion reached by the officials. Toussaint v. McCarthy, 801 F.2d 1080, 1104-05 (9th Cir. 1986), abrogated in part on other grounds by Sandin, 515 U.S. at 484; see also Superintendent v. Hill, 472 U.S. 445, 455 (1985) (even where the punishment is the loss of good time credits, the requirements of due process are satisfied if there is even "some evidence" to support the prison's disciplinary decision).
Thus, plaintiff cannot state a cognizable Eighth Amendment violation based solely on an allegation that defendants issued a false rules violation against plaintiff. Cota v. Scribner, 2011 WL 4914934, *7 (S.D. Cal. 2011).
To the extent that plaintiff claims a particular RVR was issued in retaliation for plaintiff filing administrative grievances, plaintiff states a potentially cognizable First Amendment claim, as set forth above.
In connection with defendant Sanchez, plaintiff claims defendant Sanchez denied plaintiff witnesses at the disciplinary hearing, which states a potentially cognizable procedural due process claim and may be included in plaintiff's amended complaint.
However, to the extent plaintiff claims there was no evidence to support the disciplinary, or seeks to reverse an RVR, plaintiff's claims may be barred under Heck v. Humphrey, 512 U.S. 477 (1994). The Supreme Court has extended the Heck bar to section 1983 suits that would negate prison disciplinary proceedings that affect good-time credits. Edwards v. Balisok, 520 U.S. 641, 648 (1997). A prisoner's challenge to a disciplinary hearing procedure is barred if judgment in his favor would necessarily imply the invalidity of the resulting loss of good-time credits. Id. at 646. So, a "prisoner's § 1983 action is barred (absent prior invalidation) -- no matter the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings ) -- if success in that action would necessarily demonstrate the invalidity of confinement or its duration." Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005).
From the few allegations provided by plaintiff, it appears that a challenge to the prison disciplinary would necessarily implicate the guilty finding because plaintiff claims he was not disruptive, and did not "tent" his bunk. However, in an abundance of caution, plaintiff is granted leave to file an amended complaint should he be able to allege facts demonstrating that his challenge to the prison disciplinary proceedings are not barred under Heck.
Conspiracy
Plaintiff claims defendants Sanchez and Wilkinson conspired to violate plaintiff's right to outdoor exercise because despite plaintiff informing them that plaintiff has a constitutional right to outdoor exercise, in a phone call on March 14, both defendants agreed that plaintiff would not be permitted outside of the housing unit for the entire 90 day period. (ECF No. 1 at 9, 25.) However, plaintiff's conspiracy claim is belied by his own allegations. Plaintiff alleges that he was assessed an RVR for disruptive behavior, and that defendant Sanchez imposed the following punishment: plaintiff was barred from the law library and from yard privileges for 90 days. (ECF No. 1 at 9.) Plaintiff claims that on March 14, after the RVR punishment was imposed, he asked defendant Wilkinson when plaintiff could resume outdoor exercise, and that he and Wilkinson "had a disagreement over whether outdoor exercise was a right or a privilege." (Id.) Wilkinson then called defendant Sanchez, and during their phone conversation, they agreed plaintiff would not be permitted outside for 90 days. (Id.) Taking plaintiff's complaint as true, such allegations do not rise to the level of a conspiracy. Rather, plaintiff sustained the loss of outside exercise as a punishment in the RVR process. Defendant Wilkinson's mere agreement with defendant Sanchez' position on Sanchez' ruling does not constitute a conspiracy, and it does not rise to the level of a constitutional violation. Accordingly, plaintiff should not include this claim in his amended complaint.
Respondeat Superior
As set forth above, plaintiff names six individuals as defendants herein. Plaintiff includes specific factual allegations as to defendants Kosher, Wilkinson, and Sanchez, but fails to allege facts demonstrating that defendants Swarthout, Young, and Popovits were specifically involved in the claims the undersigned found potentially cognizable.
The Civil Rights Act under which this action was filed provides as follows:
Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658 (1978) ("Congress did not intend § 1983 liability to attach where . . . causation [is] absent."); Rizzo v. Goode, 423 U.S. 362 (1976) (no affirmative link between the incidents of police misconduct and the adoption of any plan or policy demonstrating their authorization or approval of such misconduct). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
Moreover, supervisory personnel are generally not liable under section 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979) (no liability where there is no allegation of personal participation); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978) (no liability where there is no evidence of personal participation), cert. denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (complaint devoid of specific factual allegations of personal participation is insufficient).
Here, plaintiff contends defendants Swarthout, Young, and Popovits "reviewed and sustained" the RVRs. Such allegations are insufficient to demonstrate these defendants acted in retaliation. Plaintiff may only sustain a retaliation claim against individuals who allegedly acted in retaliation. Thus, where the alleged retaliation occurred in the initiation of the grievance, those involved in the subsequent hearing process, as well as the review process, are not liable based solely on their role in the process. Plaintiff must allege facts demonstrating the individual's retaliatory intent. Moreover, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp., 550 U.S. at 555). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atlantic Corp., 550 U.S. at 570). Mere acquiescence is insufficient. Thus, plaintiff should not name individuals as defendants in the amended complaint unless he can plead facts meeting these standards.
Unrelated State Law Claims
Plaintiff alleges that on November 3, 2012, defendant Kosher attacked plaintiff with a rubber band, causing injury to plaintiff's head, face and neck, as well as emotional distress. Plaintiff presses state law claims for assault, battery, and the negligent and intentional infliction of emotional distress. This claim is not common to all named defendants, and does not arise from the same transaction as plaintiff's other federal claims. This court is not inclined to exercise supplemental jurisdiction over this claim, and plaintiff should not renew this claim in his amended complaint.
Conclusion
The court finds the allegations in plaintiff's complaint so vague and conclusory that it is unable to determine whether the current action is frivolous or fails to state a claim for relief. The court has determined that the complaint does not contain a short and plain statement as required by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support plaintiff's claim. Id. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2), the complaint must be dismissed. The court will, however, grant leave to file an amended complaint.
If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions about which he complains resulted in a deprivation of plaintiff's constitutional rights. Rizzo v. Goode, 423 U.S. at 371. Also, the complaint must allege in specific terms how each named defendant is involved. Id. There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant's actions and the claimed deprivation. Id.; May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to make plaintiff's amended complaint complete. Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. This requirement exists because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged.
Pursuant to Fed. R. Civ. P. 20(a)(2), multiple defendants may be joined in one action if: (1) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (2) any question of law or fact common to all defendants will arise in the action. Fed. R. Civ. P. 20(a)(2); see also Coughlin v. Rogers, 130 F.3d 1348, 1350-52 (9th Cir. 1997). As long as these requirements are satisfied, a plaintiff may join as many claims as he has against any defendant, even if those claims are unrelated. See Fed. R. Civ. P. 18(a).
Unrelated claims against different defendants, however, should be pursued in separate lawsuits. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). This rule is intended "not only to prevent the sort of morass [a multiple claim, multiple defendant] suit produce[s], but also to ensure that prisoners pay the required filing fees -- for the Prison Litigation Reform Act limits to three the number of frivolous suits or appeals that any prisoner may file without prepayment of the required fees. 28 U.S.C. § 1915(g)." Id. If the test for permissive joinder is not satisfied, a court, in its discretion, may sever the misjoined parties. See Fed. R. Civ. P. 21.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff's request for leave to proceed in forma pauperis is granted.
2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). All fees shall be collected and paid in accordance with this court's order to the Director of the California Department of Corrections and Rehabilitation filed concurrently herewith.
3. Plaintiff's complaint is dismissed.
4. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Amendment and submit the following documents to the court:
a. The completed Notice of Amendment; andPlaintiff's amended complaint shall comply with the requirements of the Civil Rights Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must also bear the docket number assigned to this case and must be labeled "Amended Complaint." Failure to file an amended complaint in accordance with this order may result in the dismissal of this action.
b. An original and one copy of the Amended Complaint.
5. Plaintiff's motions for injunctive relief (ECF Nos. 1, 5) are denied.
_________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
MICHAEL AARON WITKIN, Plaintiff,
v.
GARY SWARTHOUT, et al, Defendants.
No. 2:13-cv-1931 KJN P
NOTICE OF AMENDMENT
Plaintiff hereby submits the following document in compliance with the court's order filed_________.
Amended Complaint
_________________
Plaintiff