(PC) Aggers v. Tyson et al, No. 1:2007cv01701 - Document 18 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS recommending the Dismissal of Plaintiff's Due Process and Equal Protection Claims signed by Magistrate Judge Jennifer L. Thurston on 10/7/2010. Referred to Judge Anthony W. Ishii. Objections to F&R due by 11/1/2010. (Sant Agata, S)
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(PC) Aggers v. Tyson et al Doc. 18 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DARRYL KEITH AGGERS, 12 Plaintiff, 13 14 Case No.: 1:07-cv-01701 AWI JLT (PC) FINDINGS AND RECOMMENDATIONS RECOMMENDING THE DISMISSAL OF PLAINTIFF’S DUE PROCESS AND EQUAL PROTECTION CLAIMS vs. TYSON, et al., 15 Defendants. 16 / 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action 18 pursuant to 42 U.S.C. § 1983. By order filed June 4, 2009, Plaintiff’s complaint was dismissed with 19 leave to amend. Now pending before the Court is Plaintiff’s amended complaint. 20 I. SCREENING 21 A. 22 The Court is required to review a case filed in forma pauperis. 28 U.S.C. § 1915(A)(a). The 23 Court must review the complaint and dismiss the action if it is frivolous or malicious, fails to state a 24 claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from 25 such relief. 28 U.S.C. § 1915 (e)(2). If the Court determines the complaint fails to state a claim, leave 26 to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment. 27 Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc). 28 ///// Screening Requirement 1 Dockets.Justia.com 1 B. 2 The Civil Rights Act under which this action was filed provides as follows: 3 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. 4 5 6 Section 1983 42 U.S.C. § 1983. 7 To plead a § 1983 violation, the plaintiff must allege facts from which it may be inferred that (1) 8 plaintiff was deprived of a federal right, and (2) the person who deprived plaintiff of that right acted 9 under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Collins v. Womancare, 878 F.2d 1145, 10 1147 (9th Cir. 1989). To warrant relief under § 1983, the plaintiff must allege and show that the 11 defendants’ acts or omissions caused the deprivation of the plaintiff’s constitutionally protected rights. 12 Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1993). “A person deprives another of a constitutional right, 13 within the meaning of section 1983, if he does an affirmative act, participates in another’s affirmative 14 acts, or omits to perform an act which he is legally required to do that causes the deprivation of which 15 [the plaintiff complains].” Id. There must be an actual causal connection or link between the actions 16 of each defendant and the deprivation alleged to have been suffered by the plaintiff. See Monell v. Dept. 17 of Social Services, 436 U.S. 658, 691-92 (1978) (citing Rizzo v. Goode, 423 U.S. 362, 370-71(1976)). 18 C. 19 Section 1983 complaints are governed by the notice pleading standard in Federal Rule of Civil 20 Rule 8(a) Procedure 8(a), which provides in relevant part that: 21 A pleading that states a claim for relief must contain: 22 (1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; 23 24 (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and 25 (3) a demand for the relief sought, which may include relief in the alternative or different types of relief. 26 27 The Federal Rules of Civil Procedure adopt a flexible pleading policy. Nevertheless, a complaint 28 must give fair notice and state the elements of the plaintiff’s claim plainly and succinctly. Jones v. 2 1 Community Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). In other words, the plaintiff 2 is required to give the defendants fair notice of what constitutes the plaintiff’s claim and the grounds 3 upon which it rests. Although a complaint need not outline all the elements of a claim, it must be 4 possible to infer from the allegations that all of the elements exist and that the plaintiff is entitled to 5 relief under a viable legal theory. Walker v. South Cent. Bell Telephone Co., 904 F.2d 275, 277 (5th 6 Cir. 1990). Vague and conclusory allegations are insufficient to state a claim under § 1983. See Ivey 7 v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 8 II. 9 BACKGROUND A. Procedural Background 10 This case was transferred to this Court from the Central District of California on November 27, 11 2007. (Doc. 1.) On June 4, 2009, the Court screened Plaintiff’s complaint and found that it failed to 12 state a cognizable claim. (Doc. 14.) The Court, however, granted Plaintiff leave to file an amended 13 complaint. (Id.) Accordingly, on July 10, 2009, Plaintiff filed an amended complaint. (Doc. 15.) 14 B. 15 In his amended complaint, Plaintiff alleges that he requested a hardship transfer to a different 16 prison facility. Plaintiff sought to be closer to his wife who suffered from various medical conditions 17 which prevented her from traveling long distances. In response to Plaintiff’s request, Defendant Tyson 18 instructed Plaintiff’s wife to submit a letter from her doctor explaining her medical condition. On 19 January 19, 2006, Plaintiff’s wife submitted the requested letter. Nevertheless, Defendants Tyson and 20 Madellin denied Plaintiff’s request for a hardship transfer. Moreover, when Plaintiff subsequently filed 21 an inmate appeal challenging the decision, Defendant Gricewich ignored or otherwise discarded 22 Plaintiff’s appeal. (Am. Compl. at 3-6, Ex. A, F.1) The Amended Complaint 23 According to Plaintiff, Defendants’ decision to deny his request for a hardship transfer was 24 racially motivated. Plaintiff alleges that Defendants Tyson and Madellin granted a hardship transfer 25 request from a white inmate, whose father was on dialysis. In addition, Plaintiff alleges that Defendant 26 27 28 1 Plaintiff’s amended complaint is not paginated. Therefore, for the sake of consistency, the Court will cite to the pages of the amended complaint as they appear on ECF/CM. 3 1 Tyson retaliated against him for filing inmate grievances regarding the denial of his transfer request, as 2 well as for filing the instant civil rights action. According to Plaintiff, Defendant Tyson threatened to 3 and eventually did transfer Plaintiff to a prison facility further away from his wife and family. Instead 4 of being four hours away from his wife and family, Plaintiff was now nine hours away. (Am. Compl. 5 at 4, 6.) 6 Based on the above allegations, Plaintiff appears to claim that Defendants violated his 7 constitutional right to due process, equal protection, and to be free from retaliation. In terms of relief, 8 Plaintiff seeks monetary damages. (Am. Compl. at 3.) 9 III. DISCUSSION 10 A. 11 The Due Process Clause of the Fourteenth Amendment protects prisoners from being deprived 12 of life, liberty, or property without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). 13 A prisoner alleging a procedural due process violation must first demonstrate that he was deprived of 14 a liberty or property interest protected by the Due Process Clause and then show that the procedures 15 attendant upon the deprivation were not constitutionally sufficient. Ky. Dep’t of Corr. v. Thompson, 16 490 U.S. 454, 459-60 (1989); McQuillion v. Duncan, 306 F.3d 895, 900 (9th Cir. 2002). A protected 17 liberty interest may arise under the Due Process Clause itself or under a state statute or regulation. 18 Wilkinson v. Austin, 545 U.S. 209, 221-22 (2005). In the prison context, a state statute or regulation 19 gives rise to a protected liberty interest if it imposes an “atypical and significant hardship [on the inmate] 20 in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). Due Process 21 Here, as the Court explained in its previous screening order, Plaintiff does not have a general 22 constitutional right or protected liberty interest in being housed at a particular prison facility or in being 23 transferred to a different prison facility. See Olim v. Wakinekona, 461 U.S. 238, 248 (1983) (prisoners 24 have no constitutional right to incarceration in a particular state); Meachum v. Fano, 427 U.S. 215, 224- 25 25 (1976) (prisoners have no liberty interest in being placed at a particular institution). Separation from 26 one’s family is an ordinary incident of prison life. See Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 27 1996) (prisoners have no constitutional right to visitation by a particular person). Accordingly, 28 Plaintiff’s allegation that he was denied a hardship transfer, without more, fails to state a cognizable 4 1 claim. See, e.g., McKinney v. Davis, No. CIV S-02-2496 FCD GGH P, 2007 WL 214581, at *7 (E.D. 2 Cal. Jan 25. 2007) (no constitutional violation when defendant denied plaintiff’s request for a hardship 3 transfer). 4 Plaintiff’s allegation that Defendant Gricewich ignored or otherwise discarded his inmate 5 grievances also fails to state a cognizable claim. It is well-established that “inmates lack a separate 6 constitutional entitlement to a specific prison grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 7 860 (9th Cir. 2003) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)). Therefore, when a 8 prison official denies, screens-out, or ignores an inmate’s grievance, the prison official does not deprive 9 the inmate of any constitutional right. See, e.g., Wright v. Shannon, No. CIV F-05-1485 LJO YNP PC, 10 2010 WL 445203, at *5 (E.D. Cal. Feb. 2, 2010) (plaintiff’s allegation that prison officials denied or 11 ignored his inmate appeals failed to state a cognizable claim); Walker v. Vazquez, No. CIV F-09-0931 12 YNP PC, 2009 WL 5088788, at *6-7 (E.D. Cal. Dec. 17, 2009) (plaintiff’s allegation that prison officials 13 failed to timely process his inmate appeals failed to state a cognizable claim); Towner v. Knowles, No. 14 CIV S-08-2833 LKK EFB P, 2009 WL 4281999, at *2 (E.D. Cal. Nov. 20, 2009) (plaintiff’s allegation 15 that prison officials screened-out his inmate grievances without any basis failed to show a deprivation 16 of federal rights). 17 B. 18 “Prisoners are protected under the Equal Protection Clause of the Fourteenth Amendment from 19 invidious discrimination based on race.” Wolff, 418 U.S. at 556. To state a viable equal protection 20 claim, a prisoner “must plead intentional unlawful discrimination or allege facts that are at least 21 susceptible of an inference of discriminatory intent.” Byrd v. Maricopa County Sheriff’s Dep’t, 565 F.3d 22 1205, 1212 (9th Cir. 2009) (quoting Monteiro v. Temple Union High School District, 158 F.3d 1022, 23 1026 (9th Cir. 1998)). “Intentional discrimination means that a defendant acted at least in part because 24 of a plaintiff’s protected status.” Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003) (quoting 25 Maynard v. City of San Jose, 37 F.3d 1396, 1404 (9th Cir. 1994) (emphasis in original)). Equal Protection 26 Here, Plaintiff’s allegations with respect to his equal protection claim are vague and conclusory. 27 Plaintiff merely alleges that Defendants Tyson and Madellin granted a white prisoner’s request for a 28 hardship transfer while denying Plaintiff’s request. Even assuming this were true, Plaintiff’s allegation 5 1 in of itself does not demonstrate that Defendants’ actions were motivated by Plaintiff’s race. In fact, 2 Plaintiff fails to allege any facts that would lead the Court to plausibly infer that Defendants Tyson or 3 Madellin held any discriminatory animus towards non-white inmates. 4 allegations fail to state a cognizable equal protection claim. Accordingly, Plaintiff’s 5 C. 6 Under the First Amendment, prison officials may not retaliate against prisoners for initiating 7 litigation or filing administrative grievances. Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005). 8 A viable claim of First Amendment retaliation entails five basic elements: (1) an assertion that a state 9 actor took some adverse action against an inmate (2) because of (3) the inmate’s protected conduct and 10 that the adverse action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the 11 adverse action did not reasonably advance a legitimate penological purpose. Id.; Barnett v. Centoni, 31 12 F.3d 813, 816 (9th Cir. 1994). Retaliation 13 In this case, Plaintiff alleges that Defendant Tyson had knowledge of the inmate grievances filed 14 by Plaintiff regarding the denial of his transfer request. Plaintiff also alleges that Defendant Tyson knew 15 of the instant civil rights action. According to Plaintiff, Defendant Tyson retaliated by threatening to 16 and actually transferring him to a prison facility further away from his wife and family. Construing 17 Plaintiff’s pro se pleadings liberally, the Court finds that Plaintiff appears to allege a cognizable First 18 Amendment retaliation claim. Accordingly, the Court will authorize service of Plaintiff’s amended 19 complaint as to this claim should these findings and recommendations be adopted by the district judge 20 assigned to this case. 21 D. 22 The Court previously dismissed Plaintiff’s complaint with leave to amend and informed Plaintiff 23 of the deficiencies of his due process and equal protection claims. Plaintiff has failed to amend his 24 complaint in a meaningful way to address the deficiencies previously identified by the Court. 25 Accordingly, the Court will recommend that Plaintiff’s due process and equal protection claims be 26 dismissed without leave to amend and with prejudice. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th 27 Cir. 2007) (leave to amend should be granted unless the court determines that the pleading could not be 28 cured); Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992) (dismissal with prejudice upheld where Leave to Amend 6 1 the court had instructed plaintiff regarding deficiencies in prior order dismissing claim with leave to 2 amend). 3 IV. CONCLUSION 4 Accordingly, for the reasons set forth above, it is hereby RECOMMENDED that: 5 1. 6 7 upon which relief may be granted; 2. 8 9 10 Plaintiff’s due process claims be dismissed with prejudice for failure to state a claim Plaintiff’s equal protection claims be dismissed with prejudice for failure to state a claim upon which relief may be granted; and 3. This action proceed against Defendant Tyson on Plaintiff’s retaliation claim under the First Amendment. 11 These findings and recommendations are submitted to the United States District Judge assigned 12 to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of 13 Practice for the United States District Court, Eastern District of California. Within twenty-one days after 14 being served with these findings and recommendations, Plaintiff may file written objections with the 15 court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 16 Recommendations.” Plaintiff is advised that failure to file objections within the specified time may 17 waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 18 19 IT IS SO ORDERED. 20 Dated: October 7, 2010 9j7khi /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 7