Grimes v. Kodger
Filing
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ORDER DISMISSING CASE (Strike) signed by Magistrate Judge Dennis L. Beck on 6/3/2011. CASE CLOSED.(Lundstrom, T)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JAMES GRIMES,
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Plaintiff,
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CASE NO. 1:10-CV-02272-DLB PC
ORDER DISMISSING ACTION FOR
FAILURE TO STATE A CLAIM UPON
WHICH RELIEF MAY BE GRANTED
v.
K. KODGER,
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(DOC. 1)
Defendant.
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DISMISSAL COUNTS AS STRIKE
PURSUANT TO 28 U.S.C. § 1915(G)
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Screening Order
I.
Background
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Plaintiff James Grimes (“Plaintiff”) is a federal prisoner, proceeding pro se and in forma
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pauperis in this civil rights action pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403
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U.S. 388 (1971), which provides a remedy for violations of civil rights by federal actors.
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Plaintiff initiated this action by filing his complaint on December 8, 2010. Doc. 1.
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The Court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are
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legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or
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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.
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§ 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been
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paid, the court shall dismiss the case at any time if the court determines that . . . the action or
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appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. §
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1915(e)(2)(B)(ii).
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A complaint must contain “a short and plain statement of the claim showing that the
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pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing
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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual
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matter, accepted as true, to ‘state a claim that is plausible on its face.’” Id. (quoting Twombly,
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550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.
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II.
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Summary Of Complaint And Analysis
Plaintiff was incarcerated at United States Penitentiary - Atwater (“USP-Atwater”), where
the events giving rise to this action occurred. Plaintiff names K. Kodger of the psychology
department as Defendant.
Plaintiff alleges the following. Defendant Kodger engaged in allegedly deceitful conduct
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by placing Plaintiff’s name on a confidential list of individuals who are not in Defendant’s care
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or the department’s (presumably the psychology department’s) care. As a result of Defendant’s
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actions, Plaintiff’s reputation was jeopardized with other staff and inmates, and Plaintiff suffered
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unnamed restrictions. Plaintiff lists having only 10 points (a presumed reference to his
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classification status), being in the honor unit, and the number 1 on-call electrician. Plaintiff
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requests that he be removed from the list, and that he not be retaliated against, including prison
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transfer or property damage. Plaintiff also requests compensation for mental and physical
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injuries.
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Plaintiff fails to state a claim. It is unclear what violation has occurred, if any. If Plaintiff
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is complaining that he was classified improperly and lost certain eligibility for rehabilitative
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programs, Plaintiff fails to state a claim. See Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976)
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(noting that Congress empowered federal prison system with full discretion to control prisoner
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classification and eligibility for rehabilitative systems, and that federal prisoners “[have] no
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legitimate authority or constitutional entitlement sufficient to invoke due process”) (citing 18
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U.S.C. § 4081). Plaintiff has no due process claim regarding his classification status or eligibility
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for rehabilitative programs. Any potential loss of reputation also fails to state a claim because
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injury to reputation alone does not result in the deprivation of a liberty or a property interest
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protected by the Due Process Clause of the Fourteenth Amendment. See Paul v. Davis, 424 U.S.
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693, 713 (1976); Johnson v. Barker, 799 F.2d 1396, 1399 (9th Cir. 1986).
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III.
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In Forma Pauperis Status On Appeal
Under 28 U.S.C. § 1915(a)(3), “[a]n appeal may not be taken in forma pauperis if the trial
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court certifies in writing that it is not taken in good faith.” “Not taken in good faith” means
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“frivolous.” Ellis v. United States, 356 U.S. 674, 674-75 (1958) (per curiam); see Hooker v.
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American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (revocation of in forma pauperis status is
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appropriate where district court finds the appeal to be frivolous).
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Here, Plaintiff’s arguments are mainly nonsensical and devoid of specific factual
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allegations that support a claim. If Plaintiff is contending a due process violation because of his
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change of classification status or loss of eligibility for rehabilitative programs, Plaintiff’s claim
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fails as a matter of law. Moody, 429 U.S. at 88 n.9. Thus, any appeal taken would be frivolous.
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IV.
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Conclusion And Order
Plaintiff fails to state a claim against Defendant Kodger. The Court finds that Plaintiff
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will not be able to cure the deficiencies in his complaint even if provided the opportunity to
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amend. Accordingly, further leave to amend will not be granted. See Lopez v. Smith, 203 F.3d
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1122, 1127 (9th Cir. 2000) (en banc).
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Based on the foregoing, it is HEREBY ORDERED that
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1.
This action is DISMISSED for failure to state a claim upon which relief may be
granted;
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2.
This dismissal counts as a strike pursuant to 28 U.S.C. § 1915(g);
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The Clerk of the Court is directed to close this action; and
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Pursuant to 28 U.S.C. § 1915(a)(3), any appeal from this order is not taken in
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good faith, and Plaintiff is not entitled to proceed in forma pauperis on appeal.
IT IS SO ORDERED.
Dated:
June 3, 2011
/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE
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