(PC) Smith v. Green, No. 1:2009cv00600 - Document 15 (E.D. Cal. 2010)

Court Description: ORDER DISMISSING Certain Claims Without Prejudice; FINDINGS and RECOMMENDATIONS Recommending Dismissal of Certain Claims and Defendants re 13 ; Objections, if any, due Within 30 Days signed by Magistrate Judge Dennis L. Beck on 5/11/2010. Referred to Judge Anthony W. Ishii. Objections to F&R due by 6/14/2010. (Bradley, A)

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(PC) Smith v. Green Doc. 15 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 MICHAEL LENOIR SMITH, CASE NO. 1:09-cv-00600-AWI-DLB PC 10 Plaintiff, ORDER DISMISSING CERTAIN CLAIMS WITHOUT PREJUDICE 11 v. 12 FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS GREEN, et al., 13 Defendants. 14 (Doc. 13) 15 / OBJECTIONS, IF ANY, DUE WITHIN 30 DAYS 16 17 Findings and Recommendations 18 I. Background 19 A. 20 Plaintiff Michael Lenoir Smith (“Plaintiff’) is a prisoner in the custody of the California Procedural History 21 Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in 22 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this 23 action by filing his complaint on April 3, 2009. On October 15, 2009, the Court dismissed 24 Plaintiff’s complaint with leave to amend for failure to state any cognizable claims. On 25 November 3, 2009, Plaintiff filed his amended complaint. 26 B. 27 The Court is required to screen complaints brought by prisoners seeking relief against a Screening Requirement 28 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 1 Dockets.Justia.com 1 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 2 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 3 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 4 § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been 5 paid, the court shall dismiss the case at any time if the court determines that . . . the action or 6 appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. § 7 1915(e)(2)(B)(ii). 8 A complaint must contain “a short and plain statement of the claim showing that the 9 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 10 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 11 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing 12 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual 13 matter, accepted as true, to ‘state a claim that is plausible on its face.’” Iqbal, 129 S. Ct. at 1949 14 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal 15 conclusions are not. Id. at 1949. 16 II. Summary of Amended Complaint 17 Plaintiff was previously incarcerated at Pleasant Valley State Prison (“PVSP”) where the 18 events giving rise to this action occurred. Plaintiff names as defendants: sergeant Green, sergeant 19 Navarro, correctional officer T. Lee, appeals coordinator H. Martinez, correctional officer 20 Hopkins, and correctional officer Cerda, Jr. 21 A. 22 Plaintiff has two claims: (1) allegations against Defendants Green, Navarro, T. Lee, and Federal Rule of Civil Procedure 18(a) 23 H. Martinez regarding a rules violation report and confinement to quarters, and (2) Defendants 24 Hopkins and Cerda, Jr. for actions taken during a transport. These actions are distinct, and would 25 violate the purpose of Federal Rule of Civil Procedure 18(a). “The controlling principle appears 26 in Fed. R. Civ. P. 18(a): ‘A party asserting a claim to relief as an original claim, counterclaim, 27 cross-claim, or third-party claim, may join, either as independent or as alternate claims, as 28 claims, legal, equitable, or maritime, as the party has against an opposing party.’ Thus multiple 2 1 claims against a single party are fine, but Claim A against Defendant 1 should not be joined with 2 unrelated Claim B against Defendant 2.” George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 3 The purpose of splitting such claims into different actions is to avoid the morass that a multiple 4 claim, multiple defendant will cause, and to ensure that prisoners pay the required filing fees 5 pursuant to the PLRA. Id. 6 Here, Plaintiff’s allegations against Defendants Green, Navarro, T. Lee and H. Martinez 7 are distinct and unrelated from his claims against Defendants Hopkins and Cerda, Jr. This 8 violates Rule 18(a). Accordingly, Plaintiff’s claims against Defendants Hopkins and Cerda Jr. 9 are dismissed from this action without prejudice to filing in a separate action. The Court now 10 turns to Plaintiff’s claims against Defendants Green, Navarro, T. Lee, and H. Martinez. 11 B. 12 Plaintiff contends that he was placed on confinement to quarters (“CTQ”) by defendant Claims Against Green, Navarro, T. Lee, and H. Martinez 13 Navaro due to a bogus allegation made by Defendant T. Lee. (Doc. 13, Am. Compl. p. 3.)1 All 14 inmates in the unit had been placed on lockdown because a note threatening to assault medical 15 staff had been found. (Id.) Plaintiff was singled out, even though he did not write the note, 16 because he is a known inmate litigator. (Id.) Plaintiff was prohibited from visits, outdoor and 17 indoor recreation, use of the law library, work assignment, telephone calls, and other privileges 18 typically received by inmates. (Id. at 4-5.) Plaintiff received a CDC 115 serious Rules Violation 19 Report (“RVR”) for inciting, and was taken to a disciplinary hearing before Defendant Green. 20 (Id. at 5.) Plaintiff contended to Defendant Green that prior to be CTQ’d for three days, Plaintiff 21 should have received the protections of due process listed in Wolff v. McDonell. (Id. at 5-6.) 22 Defendant Green found Plaintiff guilty and instituted a sentence of 30 days loss of outdoor 23 recreation. (Id. at 6.) Plaintiff appealed the decision, but the appeal was screened out by 24 Defendant Martinez, for reasons that “are outside of the rejection criteria detailed in the CCR § 25 3084.4(c)(1)-(8).” (Id.) 26 Plaintiff seeks monetary damages. 27 28 1 All references to page numbers refer to the court docket’s page numbering. 3 1 III. Analysis 2 A. 3 Plaintiff contends that he was made an example of when he was placed on CTQ and First Amendment Retaliation 4 found guilty of a RVR for inciting because he is a litigator. Allegations of retaliation against a 5 prisoner’s First Amendment rights to speech or to petition the government may support a § 1983 6 claim. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also Valandingham v. 7 Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). 8 “Within the prison context, a viable claim of First Amendment retaliation entails five basic 9 elements: (1) An assertion that a state actor took some adverse action against an inmate (2) 10 because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 11 exercise of his First Amendment rights, and (5) the action did not reasonably advance a 12 legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). 13 Plaintiff’s allegations are sufficient to state a cognizable retaliation claim against 14 Defendants Navarro, Green, and T. Lee. 15 B. 16 The Eighth Amendment protects prisoners from inhumane methods of punishment and Eighth Amendment 17 from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 18 2006). Extreme deprivations are required to make out a conditions of confinement claim, and 19 only those deprivations denying the minimal civilized measure of life’s necessities are 20 sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian, 21 503 U.S. 1, 9, 112 S. Ct. 995 (1992) (citations and quotations omitted). In order to state a claim 22 for violation of the Eighth Amendment, the plaintiff must allege facts sufficient to support a 23 claim that prison officials knew of and disregarded a substantial risk of serious harm to the 24 plaintiff. E.g., Farmer v. Brennan, 511 U.S. 825, 847, 114 S. Ct. 1970 (1994); Frost v. Agnos, 25 152 F.3d 1124, 1128 (9th Cir. 1998). 26 /// 27 /// 28 /// 4 1 2 1. Confinement To Quarters Plaintiff contends that confinement to quarters is cruel and unusual punishment. Three 3 days of no outdoor or indoor recreation is insufficient to demonstrate cruel and unusual 4 punishment in violation of the Eighth Amendment. See May v. Baldwin, 109 F.3d 557, 565 (9th 5 Cir. 1997) (finding “a temporary denial of outdoor exercise with no medical effects is not a 6 substantial deprivation”). Deprivation of work does not violate the Eighth Amendment. 7 Hoptowit v. Ray, 682 F.2d 1237, 1254-55 (9th Cir. 1982). 8 9 2. Loss of Yard Privileges Under some circumstances, the denial of outdoor exercise may rise to the level of cruel 10 and unusual punishment. Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir. 1995). However, the right 11 to outdoor exercise is not absolute or unyielding to other considerations. Norwood v. Vance, 572 12 F.3d 626, 631-32 (9th Cir. 2009). Whether the denial of outdoor exercise constitutes a 13 constitutional violation is dependent upon the circumstances leading to the denial. Id. 14 “Although exercise is one of the basic human necessities protected by the Eighth Amendment, a 15 temporary denial of outdoor exercise with no medical effects is not a substantial deprivation.” 16 Id. at 633 (internal quotations and citations omitted). 17 Here, Plaintiff alleges that he was assessed a thirty day loss of yard privileges following 18 the finding of guilt on a rules violation report and thus deprived of outdoor recreation. However, 19 Plaintiff has not alleged any facts showing that a one month restriction on outdoor activities was 20 a substantial deprivation, or that any defendant knew of and disregarded an excessive risk of 21 harm to him. Plaintiff fails to state a claim for relief for violation of the Eighth Amendment 22 relating to the deprivation of outdoor recreation. 23 C. 24 The Due Process Clause protects against the deprivation of liberty without due process of Due Process 25 law. Wilkinson v. Austin, 545 U. S. 209, 221, 125 S. Ct. 2384, 2393 (2005). In order to invoke 26 the protection of the Due Process Clause, a plaintiff must first establish the existence of a liberty 27 interest for which the protection is sought. Id. Liberty interests may arise from the Due Process 28 Clause itself or from state law. Id. The Due Process Clause itself does not confer on inmates a 5 1 liberty interest in avoiding “more adverse conditions of confinement.” Id. Under state law, the 2 existence of a liberty interest created by prison regulations is determined by focusing on the 3 nature of the deprivation. Sandin v. Conner, 515 U.S. 472, 481-84, 115 S. Ct. 2293 (1995). 4 Liberty interests created by state law are “generally limited to freedom from restraint which . . . 5 imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of 6 prison life.” Id. at 484; Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007). 7 8 1. Confinement to Quarters Plaintiff argues that pursuant to Wolff v. McDonnell, 418 U.S. 539 (1974), due process 9 requires a hearing before any punishment is imposed upon a prison inmate by prison staff. 10 Plaintiff contends that the imposition of a confinement to quarters restriction violated due 11 process because Plaintiff was not afforded a hearing. Plaintiff is not entitled to procedural due 12 process protections in a vacuum. In order to be entitled under federal law to any procedural due 13 process protections, Plaintiff must first have a liberty interest at stake. Plaintiff has alleged no 14 facts that establish the existence of a liberty interest in remaining free from confinement in his 15 quarters. See May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997) (convicted inmate’s due process 16 claim fails because he has no liberty interest in freedom from state action taken within sentence 17 imposed and administrative segregation falls within the terms of confinement ordinarily 18 contemplated by a sentence) (quotations omitted); Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 19 2000) (plaintiff’s placement and retention in the SHU was within range of confinement normally 20 expected by inmates in relation to ordinary incidents of prison life and, therefore, plaintiff had no 21 protected liberty interest in being free from confinement in the SHU) (quotations omitted). 22 Plaintiff’s allegations that he was confined to his cell for three days is not an atypical and 23 significant deprivation giving rise to a liberty interest. See Sandin, 515 U.S. at 483-84. Plaintiff 24 thus fails to state a due process claim. 25 26 2. Disciplinary Hearing Plaintiff alleges he was found guilty of disciplinary rules violation report by Defendant 27 Green. It is unclear whether Plaintiff is alleging a separate due process violation against 28 Defendant Green based on procedural deficiencies with the hearing. To the extent that Plaintiff 6 1 is pursuing such a claim, Plaintiff again fails to allege any liberty interest that would invoke due 2 process concerns. There is no liberty interest in avoiding more adverse conditions of 3 confinement, and a thirty day loss of outdoor yard privileges does not establish the existence of a 4 liberty interest. Plaintiff fails to state a viable claim for violation of due process.2 5 D. 6 Plaintiff alleges that Defendant Martinez violated due process by improperly screening Inmate Appeals 7 out Plaintiff’s grievance. “[A prison] grievance procedure is a procedural right only, it does not 8 confer any substantive right upon the inmates.” Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 9 1993) (citing Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982)); see also Ramirez v. 10 Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no liberty interest in processing of appeals because 11 no entitlement to a specific grievance procedure); Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 12 2001) (existence of grievance procedure confers no liberty interest on prisoner); Mann v. Adams, 13 855 F.2d 639, 640 (9th Cir. 1988). Defendant Martinez’s actions in screening out Plaintiff’s 14 appeal does not give rise to any claims for relief under section 1983. Plaintiff’s claim fails as a 15 matter of law. 16 III. Conclusion 17 Based on the foregoing, the Court DISMISSES Plaintiff’s claims against Defendants 18 Hopkins and Cerda, Jr. without prejudice, for failure to comply with Rule 18(a) of the Federal 19 Rules of Civil Procedure. 20 The Court HEREBY RECOMMENDS the following: 21 1) 22 23 This action proceed against Defendants Green, Navarro, and T. Lee for retaliation in violation of the First Amendment; 2) 24 Plaintiff’s Eighth Amendment and due process claims are dismissed for failure to state a claim upon which relief may be granted under 42 U.S.C. § 1983; and 25 26 27 28 2 Plaintiff contended to Defendant Green that if Plaintiff was found guilty during a disciplinary hearing, that would constitute Double Jeopardy in violation of the Fifth Amendment. This argument is without merit. Prison disciplinary proceedings are not part of a criminal prosecution, Wolff v. McDonnell, 418 U.S. 539, 556 (1974), and therefore do not implicate double jeopardy, see Breed v. Jones, (finding application of the double jeopardy clause limited to proceedings which are “essentially criminal”). 7 1 3) Defendant Martinez is dismissed from this action. 2 These Findings and Recommendations will be submitted to the United States District 3 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 4 thirty (30) days after being served with these Findings and Recommendations, the plaintiff may 5 file written objections with the Court. The document should be captioned “Objections to 6 Magistrate Judge’s Findings and Recommendations.” The plaintiff is advised that failure to file 7 objections within the specified time may waive the right to appeal the District Court’s order. 8 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 9 IT IS SO ORDERED. 10 Dated: 3b142a May 11, 2010 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8

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