(PC) Quillar v. Zepeda, et al, No. 2:2006cv02394 - Document 58 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 08/19/09 recommending that plaintiff's third amended complaint and the allegations against Shankland, Martinez and Hadenfelt be dismissed and this case be closed. Amended Prisoner Civil Rights Complaint 54 referred to Judge Frank C. Damrell; Objections due within 20 days. (Plummer, M)
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(PC) Quillar v. Zepeda, et al Doc. 58 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 LEE V. QUILLAR, Plaintiff, 9 10 11 No. CIV S-06-2394 FCD GGH P vs. NIKKI ZEPEDA, et al., Defendant. 12 FINDINGS AND RECOMMENDATIONS / 13 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil 14 15 rights action pursuant to 42 U.S.C. § 1983. On June 10, 2009, the undersigned issued an Order 16 and Findings and Recommendations in response to defendant’s motion to dismiss.1 The 17 undersigned ordered that the motion to dismiss be granted as to defendants Shankland, Martinez 18 and Hadenfelt with respect to the October 18, 2005, disciplinary hearing and the claim against 19 Shankland for denial of access to the courts. These claims were dismissed with leave to file a 20 third amended complaint to provide more specific information. On July 6, 2009, plaintiff filed a 21 third amended complaint and on July 9, 2009, defendants filed a motion for the court to screen 22 the third amended complaint. The court is required to screen complaints brought by prisoners seeking relief 23 24 against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 25 1 26 The Findings and Recommendations were adopted by the district court on August 11, 2009, dismissing several other claims 1 Dockets.Justia.com 1 § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised 2 claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 3 granted, or that seek monetary relief from a defendant who is immune from such relief. 28 4 U.S.C. § 1915A(b)(1),(2). 5 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 6 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 7 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 8 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 9 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 10 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 11 Cir. 1989); Franklin, 745 F.2d at 1227. 12 A complaint must contain more than a “formulaic recitation of the elements of a 13 cause of action;” it must contain factual allegations sufficient to “raise a right to relief above the 14 speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007). 15 “The pleading must contain something more...than...a statement of facts that merely creates a 16 suspicion [of] a legally cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal 17 Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). “[A] complaint must contain sufficient 18 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft 19 v. Iqbal, No. 07-1015, 2009 WL 1361536 at * 12 (May 18, 2009) (quoting Twombly, 550 U.S. at 20 570, 127 S.Ct. 1955). “A claim has facial plausibility when the plaintiff pleads factual content 21 that allows the court to draw the reasonable inference that the defendant is liable for the 22 misconduct alleged.” Id. 23 In reviewing a complaint under this standard, the court must accept as true the 24 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 25 738, 740, 96 S.Ct. 1848 (1976), construe the pleading in the light most favorable to the plaintiff, 26 and resolve all doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 2 1 1843 (1969). The June 10, 2009, Order and Finding and Recommendations granted plaintiff 2 3 leave to file a third amended complaint to provide details of the October 18, 2005, disciplinary 4 hearing. Plaintiff was to provide additional information concerning the alleged constitutional 5 deprivation, any alleged due process violations and why the claim is not moot as plaintiff was 6 given a rehearing. With respect to plaintiff’s claim for denial of access to the courts, plaintiff 7 was advised to provide information concerning the nature of the underlying suit, the documents 8 that he alleges were confiscated and how the confiscation prevented plaintiff from timely 9 proceeding with the legal action. Plaintiff’s third amended complaint fails to address these 10 issues. 11 While plaintiff’s and defendant’s pleadings focused on the alleged due process 12 violations at the October 18, 2005, disciplinary hearing, there was no actionable constitutional 13 deprivation. In the third amended complaint plaintiff alleges that as a result of the hearing he 14 was denied normal privileges for his custody level and was confined to a cell except for the days 15 he was allowed to go to the yard. “The requirements of procedural due process apply only to the deprivation of 16 17 interests encompassed by the Fourteenth Amendment's protection of liberty and property.” 18 Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701 (1972). State statutes and prison 19 regulations may grant prisoners liberty interests sufficient to invoke due process protections. 20 Meachum v. Fano, 427 U.S. 215, 223-27, 96 S.Ct. 2532 (1976). However, the Supreme Court 21 has significantly limited the instances in which due process can be invoked. Pursuant to Sandin 22 v. Conner, 515 U.S. 472, 483, 115 S.Ct. 2293 (1995), a prisoner can show a liberty interest under 23 the Due Process Clause of the Fourteenth Amendment only if he alleges a change in confinement 24 that imposes an “atypical and significant hardship ... in relation to the ordinary incidents of prison 25 life.” Id. at 484. 26 \\\\\ 3 In this case, plaintiff has failed to establish a liberty interest protected by the 1 2 Constitution because he has not alleged, as he must under Sandin, facts related to the conditions 3 or consequences of his disciplinary hearings which show “the type of atypical, significant 4 deprivation [that] might conceivably create a liberty interest.” Id. at 486. For example, in 5 Sandin, the Supreme Court considered three factors in determining whether the plaintiff 6 possessed a liberty interest in avoiding disciplinary segregation: (1) the disciplinary versus 7 discretionary nature of the segregation; (2) the restricted conditions of the prisoner's confinement 8 and whether they amounted to a “major disruption in his environment” when compared to those 9 shared by prisoners in the general population; and (3) the possibility of whether the prisoner's 10 sentence was lengthened by his restricted custody. Id. at 486-87. To establish a due process violation, plaintiff must first show the deprivation 11 12 imposed an atypical and significant hardship on him in relation to the ordinary incidents of prison 13 life. Sandin, 515 U.S. at 483-84. Plaintiff has failed to allege any facts from which the court 14 could find there were atypical and significant hardships imposed upon him as a result of 15 defendants’ actions. Plaintiff must allege “a dramatic departure from the basic conditions” of his 16 confinement that would give rise to a liberty interest before he can claim a violation of due 17 process. Id. at 485. Plaintiff has not; therefore the court finds that plaintiff has failed to allege a 18 liberty interest, and thus, has failed to state a due process claim. 19 Plaintiff has also failed to address the mootness issue. Plaintiff alleges that his 20 due process rights were violated in the October 18, 2005, disciplinary hearing. However, as a 21 result of the inmate appeal process, plaintiff was given a new hearing. If plaintiff’s due process 22 rights were violated, plaintiff has not shown why this claim is not moot as plaintiff was provided 23 a new hearing. Thus, plaintiff’s claims regarding the October 18, 2005, hearing should be 24 dismissed. 25 26 Prisoners have a constitutional right to be afforded “a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts.” 4 1 Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174 (1996). This right applies to prisoners' 2 challenges to their convictions or sentences or conditions of confinement. Id. at 354. Prison 3 officials may not “actively interfer[e] with inmates' attempts to prepare legal documents or file 4 them.” Id. at 350. To establish a claim for any violation of the right of access to the courts, 5 prisoners must prove an actual injury by showing that their efforts to pursue a non-frivolous 6 claim concerning their conviction or conditions of confinement has been hindered. Id. at 350-55. Plaintiff has failed to provide information concerning his legal action that 7 8 defendant Shankland is alleged to have interfered with. Plaintiff has not shown that he suffered 9 an actual injury or that he was pursuing a non-frivolous claim. In fact, plaintiff has provided no 10 new information regarding the legal action. As a result this claim is also denied. 11 Accordingly, IT IS HEREBY RECOMMENDED that: 12 1. Plaintiff’s third amended complaint and the allegations against Shankland, 13 Martinez and Hadenfelt be dismissed and this case be closed. 14 These findings and recommendations are submitted to the United States District 15 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty 16 days after being served with these findings and recommendations, any party may file written 17 objections with the court and serve a copy on all parties. Such a document should be captioned 18 “Objections to Magistrate Judge's Findings and Recommendations.” Any reply to the objections 19 shall be served and filed within ten days after service of the objections. The parties are advised 20 that failure to file objections within the specified time may waive the right to appeal the District 21 Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 22 DATED: August 19, 2009 23 /s/ Gregory G. Hollows 24 GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE 25 26 ggh:ab quil2394.dis 5
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