Malone v. Gonzalez et al
Filing
14
ORDER DISMISSING COMPLAINT for Failure to State a Claim with Leave to Amend; Amended Complaint due by 12/12/2011, signed by Magistrate Judge Dennis L. Beck on 11/07/2011. (Attachments: # 1 Amended Complaint Form)(Flores, E)
<![CDATA[
1
2
3
4
5
6
UNITED STATES DISTRICT COURT
7
EASTERN DISTRICT OF CALIFORNIA
8
9
DE SHAWN MALONE,
1:11-cv-0697 DLB-PC
10
ORDER DISMISSING COMPLAINT FOR
FAILURE TO STATE A CLAIM WITH LEAVE
TO AMEND (DOC. 10)
Plaintiff,
11
v.
12
RESPONSE DUE WITHIN THIRTY DAYS
13
F. GONZALEZ, et al.,
14
Defendants.
15
/
16
I.
RELEVANT PROCEDURAL HISTORY
17
De Shawn Malone (“Plaintiff”), a state prisoner in the custody of the California Department
18
of Corrections and Rehabilitation (“CDCR”), is proceeding pro se and in forma pauperis with this
19
civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his original complaint on May 2,
20
2011. Doc. 1. He filed a First Amended Complaint (“FAC”) on September 27, 2011. Doc. 11.
21
Plaintiff’s FAC is now before the court for screening.
22
II.
SCREENING REQUIREMENT
23
The court is required to screen complaints brought by prisoners seeking relief against a
24
governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
25
court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
26
“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek
27
monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).
28
1
1
“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall
2
dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a
3
claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
4
A complaint must contain “a short and plain statement of the claim showing that the pleader
5
is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but
6
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
7
do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly,
8
550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual matter, accepted as true, to
9
‘state a claim that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 555). While factual
10
allegations are accepted as true, legal conclusions are not. Id.
11
III.
SUMMARY OF COMPLAINT
12
Plaintiff is currently incarcerated at High Desert State Prison in Susanville, California. The
13
events at issue in this action occurred while Plaintiff was incarcerated at the California Correctional
14
Institution (“CCI”) in Tehachapi, California. Plaintiff names as Defendants: F. Gonzalez, Warden
15
at CCI; Correctional Sergeants Bounville and Diaz, and Corrections Officer Jane/John Doe.
16
In his complaint, Plaintiff alleges as follows: On August 29, 2010, Plaintiff was housed at
17
Kern Valley State Prison (“KVSP”) and filed a health care grievance/appeal (“602 appeal”). On
18
September 14, 2010, he was transferred to California Correctional Institution (“CCI”) in Tehachapi,
19
California. In October 2010, Plaintiff’s 602 appeal was forwarded to him at CCI after the first level
20
inmate appeals process had been completed. Plaintiff was dissatisfied with the decision and decided
21
to pursue his 602 appeal to the second level. On October 13, 2010, he turned over his 602 appeal
22
to “prison officials at first watch” with the expectation that the documentation would be routed to
23
the appropriate staff. FAC, p. 4. In December 2010, Plaintiff received an appeals screening form
24
indicating that the office for health care appeals did not receive his 602 appeal for over a month.
25
Plaintiff contends that the “only obvious explanation was that prison official(s) at first watch held
26
the health care appeal until it could be considered delayed.” FAC, p. 5. Plaintiff informed the health
27
care appeals coordinator. In late December 2010, Plaintiff received notice that his 602 appeal had
28
been screened out for delay. On December 20, 2010, Plaintiff filed a second 602 appeal regarding
2
1
the circumstances of his original health care 602 appeal.
2
Plaintiff alleges that the first watch prison officials maliciously held his health care 602
3
appeal so that it would be barred due to time restraints. Plaintiff contends that these officials
4
retaliated against his first amendment right to file a prison grievance and intentionally interfered with
5
the exhaustion of his grievance. Plaintiff seeks declaratory relief against Warden Gonzalez to allow
6
Plaintiff to exhaust his health care 602 appeal. Plaintiff also seeks compensatory and punitive
7
damages against prison officials at first watch, Sergeant Diaz and Correctional Officer Jane/John
8
Doe.
9
IV.
PLAINTIFF’S CLAIMS
10
1.
11
Plaintiff alleges a violation of the First Amendment by defendants for interfering with his
12
ability to exhaust administrative remedies. Plaintiff fails to state a claim. While Plaintiff has the
13
constitutional right to file inmate grievances, Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003), he
14
has no liberty interest in the specific processing of his inmate grievances, Ramirez v. Galaza, 334
15
F.3d 850, 860 (9th Cir. 2003) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)). When
16
a prison official fails to process or respond to an inmate's grievance, he does not, without more,
17
commit a constitutional violation. See Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir.1993) (prison
18
grievance system is procedural and does not afford an inmate separate substantive rights).
19
Accordingly, Plaintiff's allegations regarding his 602 appeals do not state a cognizable claim under
20
§ 1983.
Inmate Appeals
21
Further, Plaintiff’s claim does not rise to the level of an access to the courts deprivation.
22
Inmates have a fundamental constitutional right of access to the courts. Lewis v. Casey, 518 U.S.
23
343, 346, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). The right is limited to direct criminal appeals,
24
habeas petitions, and civil rights actions. Id. at 354. Claims for denial of access to the courts may
25
arise from the frustration or hindrance of “a litigating opportunity yet to be gained” (forward-looking
26
access claim) or from the loss of a meritorious suit that cannot now be tried (backward-looking
27
claim). Christopher v. Harbury, 536 U.S. 403, 412-15, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002).
28
A necessary element for this claim requires that plaintiff show he suffered an “actual injury”
3
1
by being shut out of court. Harbury, 536 U.S. at 415; Lewis, 518 U.S. at 351. The second element
2
requires that Plaintiff show defendant proximately caused the alleged violation of plaintiff's rights,
3
the touchstone of which is foreseeability. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir.1991)
4
(citing Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981)); see
5
Tahoe-Sierra Pres. Council, Inc. v. Tahoe Regional Planning Agency, 216 F.3d 764, 784-85 (9th
6
Cir.2000). Finally, the third element requires that plaintiff show he has no other remedy than the
7
relief available via this suit for denial of access to the courts. Harbury, 536 U.S. at 415.
8
Here, Plaintiff's allegations do not indicate he was shut out of court. Whether Plaintiff will
9
be shut out of court in the future by defendants' alleged constitutional violation has yet to occur.
10
Plaintiff thus fails to state a cognizable claim against defendants.
11
2.
12
Plaintiff asserts that defendants retaliated against him by holding his 602 appeal. Under the
13
First Amendment, prison officials may not retaliate against prisoners for initiating litigation or filing
14
administrative grievances. Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir.2005). A viable claim
15
of retaliation entails five basic elements: (1) an assertion that a prison official took some adverse
16
action against an inmate (2) because of (3) the inmate's protected conduct; (4) the adverse action
17
chilled the inmate's exercise of his First Amendment rights; and (5) the adverse action did not
18
reasonably advance a legitimate penological purpose. Id.; Barnett v. Centoni, 31 F.3d 813, 816 (9th
19
Cir.1994).
Retaliation
20
Here, Plaintiff's only asserted fact is that his health care 602 appeal was not received for over
21
a month. This does not state a claim for retaliation. There are no facts alleged to suggest that any
22
delay was caused by the named defendants at CCI. The fact that Plaintiff believes that the only
23
reasonable explanation for the delay is that the first watch defendants “held” his 602 inmate
24
grievance is mere supposition. Plaintiff must allege facts, not conclusions. Likewise, there is no
25
allegation that any purported delay chilled Plaintiff’s exercise of his First Amendment rights.
26
Accordingly, Plaintiff’s claim of retaliation is not based on any factual support and he fails to state
27
a cognizable claim.
28
Insofar as Plaintiff attempts to impose liability on the Warden, Plaintiff does not state a claim
4
1
for supervisory liability. The term “supervisory liability,” loosely and commonly used by both
2
courts and litigants alike, is a misnomer. Iqbal, 129 S. Ct. at 1949. “Government officials may not
3
be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat
4
superior.” Id. at 1948. Rather, each government official, regardless of his or her title, is only liable
5
for his or her own misconduct.
6
When the named defendant holds a supervisor position, the causal link between the defendant
7
and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d
8
858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). To state a claim
9
for relief under § 1983 for supervisory liability, plaintiff must allege some facts indicating that the
10
defendant either: personally participated in the alleged deprivation of constitutional rights; knew of
11
the violations and failed to act to prevent them; or promulgated or “implement[ed] a policy so
12
deficient that the policy ‘itself is a repudiation of constitutional rights’ and is ‘the moving force of
13
the constitutional violation.’” Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (internal citations
14
omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
15
Plaintiff has not alleged that the Warden was aware of the constitutional violations done by
16
his subordinates and failed to act. Plaintiff fails to state a claim for supervisory liability.
17
V.
CONCLUSION AND ORDER
18
For the reasons stated, Plaintiff fails to state a claim against any defendants. The Court will
19
provide Plaintiff with an opportunity to file a second amended complaint curing the deficiencies
20
identified by the Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).
21
Plaintiff may not change the nature of this suit by adding new, unrelated claims in his amended
22
complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no "buckshot" complaints).
23
If Plaintiff decides to amend, Plaintiff's amended complaint should be brief, Fed. R. Civ. P.
24
8(a), but must state what each named defendant did that led to the deprivation of Plaintiff's
25
constitutional or other federal rights. Iqbal, 129 S. Ct. at 1949. Although accepted as true, the
26
"[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level . . . ."
27
Twombly, 550 U.S. at 555.
28
Finally, Plaintiff is advised that an amended complaint supersedes the original complaint,
5
1
Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567
2
(9th Cir. 1987), and must be "complete in itself without reference to the prior or superseded
3
pleading," L. R. 220. Plaintiff is warned that "[a]ll causes of action alleged in an original complaint
4
which are not alleged in an amended complaint are waived." King, 814 F.2d at 567 (citing to
5
London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth, 114 F.3d at
6
1474.
7
Accordingly, based on the foregoing, it is HEREBY ORDERED that:
8
1.
The Clerk's Office shall send Plaintiff a complaint form;
9
2.
Plaintiff's complaint is dismissed for failure to state a claim, with leave to file a
10
11
12
second amended complaint within thirty (30) days from the date of service of this order; and
3.
If Plaintiff fails to comply with this order, the Court will dismiss this action for failure
to obey a court order and failure to state a claim.
13
14
15
IT IS SO ORDERED.
Dated:
3b142a
November 7, 2011
/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE
16
17
18
19
20
21
22
23
24
25
26
27
28
6
]]>
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?
