(PC) Sims v. Rios, et al, No. 2:2010cv01893 - Document 7 (E.D. Cal. 2010)

Court Description: ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 9/2/2010 ORDERING that pltf's 2 application to proceed IFP is GRANTED; pltf to pay the $350.00 filing fee in accordance w/ the concurrent CDC order; and RECOMMENDING that the cmplt be dismissed w/out leave to amend; and this action be dismissed. Referred to Judge Lawrence K. Karlton; Objections due w/in 21 days. (Yin, K)
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(PC) Sims v. Rios, et al Doc. 7 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 QUINCY SIMS, 11 12 13 Plaintiff, No. CIV S-10-1893 LKK DAD P vs. D. RIOS, et al., 14 ORDER AND Defendants. 15 FINDINGS & RECOMMENDATIONS / 16 Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 17 U.S.C. § 1983 and has filed an application to proceed in forma pauperis under 28 U.S.C. § 1915. 18 This proceeding was referred to the undersigned magistrate judge in accordance with Local Rule 19 302 and 28 U.S.C. § 636(b)(1). 20 PLAINTIFF’S IN FORMA PAUPERIS APPLICATION 21 Plaintiff has submitted an in forma pauperis application that makes the showing 22 required by 28 U.S.C. § 1915(a). Accordingly, plaintiff will be granted leave to proceed in forma 23 pauperis. 24 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. See 25 28 U.S.C. §§ 1914(a) & 1915(b)(1). Plaintiff has been without funds for six months and is 26 currently without funds. Accordingly, the court will not assess an initial partial filing fee. See 28 1 Dockets.Justia.com 1 U.S.C. § 1915(b)(1). Plaintiff will be obligated to make monthly payments of twenty percent of 2 the preceding month’s income credited to plaintiff’s prison trust account. These payments shall 3 be collected and forwarded by the appropriate agency to the Clerk of the Court each time the 4 amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. See 28 U.S.C. 5 § 1915(b)(2). 6 7 SCREENING REQUIREMENT The court is required to screen complaints brought by prisoners seeking relief 8 against a governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. 9 § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised 10 claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 11 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 12 U.S.C. § 1915A(b)(1) & (2). 13 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 14 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 15 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 16 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 17 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 18 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 19 Cir. 1989); Franklin, 745 F.2d at 1227. 20 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and 21 plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 22 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 23 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 24 (1957)). However, in order to survive dismissal for failure to state a claim a complaint must 25 contain more than “a formulaic recitation of the elements of a cause of action;” it must contain 26 factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 2 1 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the 2 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 3 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all 4 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 5 The Civil Rights Act under which this action was filed provides as follows: 6 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. 7 8 9 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the 10 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 11 Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 12 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the 13 meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or 14 omits to perform an act which he is legally required to do that causes the deprivation of which 15 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 16 Moreover, supervisory personnel are generally not liable under § 1983 for the 17 actions of their employees under a theory of respondeat superior and, therefore, when a named 18 defendant holds a supervisorial position, the causal link between him and the claimed 19 constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 20 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory 21 allegations concerning the involvement of official personnel in civil rights violations are not 22 sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 23 24 PLAINTIFF’S COMPLAINT In his complaint, plaintiff identifies the following defendants: J. Walker, D. Rios, 25 A. Masuret, and E. Sanchez. (Compl. at 2-3.) Plaintiff alleges that on September 24, 2010, the 26 defendants unassigned plaintiff from a rehabilitation program without proper documentation or a 3 1 hearing.1 (Id. at 3.) In addition, plaintiff alleges that on January 27, 2010 and March 3, 2010, the 2 defendants attempted to “illegally transfer” him to another institution. (Id.) Based on these 3 allegations, plaintiff claims that the defendants violated his right to procedural due process. (Id.) 4 In terms of relief, plaintiff seeks injunctive relief and monetary damages. (Id.) 5 DISCUSSION 6 The Due Process Clause of the Fourteenth Amendment prohibits state action that 7 deprives a person of life, liberty, or property without due process of law. See U.S. Const. amend 8 XIV. A plaintiff alleging a procedural due process violation must first demonstrate that he was 9 deprived of a liberty or property interest protected by the Due Process Clause and then show that 10 the procedures attendant upon the deprivation were not constitutionally sufficient. Ky. Dep’t of 11 Corr. v. Thompson, 490 U.S. 454, 459-60 (1989); McQuillion v. Duncan, 306 F.3d 895, 900 (9th 12 Cir. 2002). A protected liberty interest may arise under the Due Process Clause itself or under a 13 state statute or regulation. See Wilkinson v. Austin, 545 U.S. 209, 221-22 (2005). In the prison 14 context, a state statute or regulation may give rise to a protected liberty interest if the prisoner is 15 imposed with an “atypical and significant hardship in relation to the ordinary incidents of prison 16 life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). 17 Here, plaintiff alleges that he was unassigned from a rehabilitation program and 18 transferred to another institution without a hearing or being afforded other procedural guarantees. 19 However, a prisoner does not have a protected liberty interest in prison educational, vocational, 20 or rehabilitative programs. See Toussaint v. McCarthy, 801 F.3d 1080, 1092 (9th Cir. 1986); see 21 also Hoptowit v. Ray, 682 F.2d 1237, 1254-55 (9th Cir. 1982) (“There is no constitutional right 22 to rehabilitation [programs].”). Nor does a prisoner have a constitutional right to be incarcerated 23 at a particular correctional facility. See Meachum v. Fano, 427 U.S. 215, 224-25 (1976); Rizzo 24 ///// 25 1 26 The court presumes that plaintiff intended to allege that he was unassigned from the rehabilitation program on September 24, 2009 and not September 24, 2010. 4 1 v. Dawson, 778 F.2d 527, 530 (9th Cir. 1985). Accordingly, because plaintiff fails to allege facts 2 demonstrating that defendants deprived him of a protected liberty interest, his complaint fails to 3 state a cognizable due process claim. 4 CONCLUSION 5 In accordance with the above, IT IS HEREBY ORDERED that: 6 1. Plaintiff’s July 19, 2010 application to proceed in forma pauperis (Doc. No. 2) 7 is granted. 8 9 10 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. The fee shall be collected and paid in accordance with this court’s order to the Director of the California Department of Corrections and Rehabilitation filed concurrently herewith. 11 Also, for the reasons set forth above, IT IS HEREBY RECOMMENDED that: 12 1. The complaint be dismissed without leave to amend for failure to state a 13 cognizable claim; and 14 2. This action be dismissed. 15 These findings and recommendations are submitted to the United States District 16 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty- 17 one days after being served with these findings and recommendations, plaintiff may file written 18 objections with the court and serve a copy on all parties. Such a document should be captioned 19 “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that 20 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: September 2, 2010. 23 24 25 DAD:sj sims1893.56 26 5