-MDD Davis et al v. Small et al, No. 3:2010cv01606 - Document 21 (S.D. Cal. 2011)
Court Description: ORDER granting 20 Motion for Permission for Removal of All Exhibits from Previous Pleadings to Attach to Amended Complaint; Dismissing Defendants Not Stated in Second Amended Complaint; and Dismissing Claims For Failure to State a Claim and Directing USMS to Effect Service on Remaining Defendants and Claims. Signed by Judge Michael M. Anello on 6/9/2011. (Pro Per Packaged Prepared) (All non-registered users served via U.S. Mail Service)(leh)
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-MDD Davis et al v. Small et al Doc. 21 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 8 9 10 11 12 RUBEN M. DAVIS, CDCR # C-23494 Civil No. Plaintiff, 13 ORDER: (1) GRANTING MOTION FOR PERMISSION FOR REMOVAL OF EXHIBITS; 14 15 (2) DISMISSING DEFENDANTS SMALL, CATE, OCHOA, JANDA, TRUJILLO, STRATTON, EDWARDS, BELTRAN, DAVIS, JIMENEZ, BETTENCOURT, GARCIA, RUTLEDGE, RODRIGUEZ, MATA, MANNING AND ADAMS; vs. 16 17 18 19 10cv1606 MMA (MDD) E. LOYA; MATTHEW RESLER; JOSHUA ROCHA; R. FREGOSO, 20 21 Defendants. 22 (3) DISMISSING CLAIMS FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A; AND (4) DIRECTING USMS TO EFFECT SERVICE OF REMAINING CLAIMS AND DEFENDANTS FOUND IN SECOND AMENDED COMPLAINT 23 24 25 26 I. PROCEDURAL HISTORY 27 On July 29, 2010, Plaintiff, a state inmate currently incarcerated at the California State 28 Prison - Los Angeles County located in Lancaster, California, and proceeding pro se, filed a 1 K:\COMMON\Chmb_Anello\EVEN # CIVIL CASES\PRISONER 1983\LINDFORS, ERIC\10cv1606- dsm claims & serve SAC.wpd 10cv1606 MMA (AJB) Dockets.Justia.com 1 civil rights Complaint pursuant to 42 U.S.C. § 1983 along with another inmate, Eric Lindfors. 2 In addition, both Plaintiffs filed Motions to Proceed In Forma Pauperis (“IFP”) pursuant to 28 3 U.S.C. § 1915(a). The Court denied Plaintiff Davis’ Motion for Leave to Proceed IFP, severed 4 claims and parties and dismissed the action pursuant to 28 U.S.C. § 1915A. See Oct. 12, 2010 5 Order at 4-5. After granting Plaintiff several extensions of time, Plaintiff Davis filed his First 6 Amended Complaint along with a renewed Motion for Leave to Proceed IFP on December 23, 7 2010. The Court granted Plaintiff’s Motion to Proceed IFP and sua sponte dismissed his First 8 Amended Complaint for failing to state a claim upon which relief could be granted. See Feb. 9 27, 2011 Order at 5-6. Plaintiff was granted leave to file a Second Amended Complaint and 10 cautioned that any Defendants not named and claims not re-alleged in his Amended Complaint 11 would be deemed to have been waived. Id. (citing King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 12 1987)). On May 9, 2011, Plaintiff filed his Second Amended Complaint (“SAC”) along with 13 a “Motion for Permission for Removal of All Exhibits from Previous Pleadings to Attach to 14 Amended Pleading Herein” [ECF No. 20]. 15 In his Second Amended Complaint, Plaintiff no longer names Ochoa, Janda, Trujillo, 16 Stratton, Beltran, Davis, Jimenez, Bettencourt, Garcia, Rutledge, Rodriguez, Mata and Manning 17 as Defendants. See SAC at 1-3. Accordingly, those Defendants are DISMISSED from this 18 action. King, 814 F.2d at 565. 19 II. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 20 The Prison Litigation Reform Act (“PLRA”)’s amendments to 28 U.S.C. § 1915 also 21 obligate the Court to review complaints filed by all persons proceeding IFP and by those, like 22 Plaintiff, who are “incarcerated or detained in any facility [and] accused of, sentenced for, or 23 adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, 24 probation, pretrial release, or diversionary program,” “as soon as practicable after docketing.” 25 See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). Under these provisions, the Court must sua 26 sponte dismiss any prisoner civil action and all other IFP complaints, or any portions thereof, 27 which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who 28 are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 11262 K:\COMMON\Chmb_Anello\EVEN # CIVIL CASES\PRISONER 1983\LINDFORS, ERIC\10cv1606- dsm claims & serve SAC.wpd 10cv1606 MMA (AJB) 1 27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 n.1 (9th Cir. 2 2000) (§ 1915A). 3 A. 4 Plaintiff alleges that his due process rights were violated during his disciplinary hearing 5 because several correctional officers falsified rules violation reports which led to Plaintiff being 6 sentenced to Administrative Segregation (“Ad-Seg”). “The requirements of procedural due 7 process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s 8 protection of liberty and property.” Board of Regents v. Roth, 408 U.S. 564, 569 (1972). State 9 statutes and prison regulations may grant prisoners liberty interests sufficient to invoke due 10 process protections. Meachum v. Fano, 427 U.S. 215, 223-27 (1976). However, the Supreme 11 Court has significantly limited the instances in which due process can be invoked. Pursuant to 12 Sandin v. Conner, 515 U.S. 472, 483 (1995), a prisoner can show a liberty interest under the 13 Due Process Clause of the Fourteenth Amendment only if he alleges a change in confinement 14 that imposes an “atypical and significant hardship . . . in relation to the ordinary incidents of 15 prison life.” Id. at 484 (citations omitted); Neal v. Shimoda, 131 F.3d 818, 827-28 (9th Cir. 16 1997). Fourteenth Amendment Due Process claims 17 In this case, Plaintiff has failed to establish a liberty interest protected by the Constitution 18 because he has not alleged, as he must under Sandin, facts related to the conditions or 19 consequences of his placement in Ad-Seg which show “the type of atypical, significant 20 deprivation [that] might conceivably create a liberty interest.” Id. at 486. For example, in 21 Sandin, the Supreme Court considered three factors in determining whether the plaintiff 22 possessed a liberty interest in avoiding disciplinary segregation: (1) the disciplinary versus 23 discretionary nature of the segregation; (2) the restricted conditions of the prisoner’s 24 confinement and whether they amounted to a “major disruption in his environment” when 25 compared to those shared by prisoners in the general population; and (3) the possibility of 26 whether the prisoner’s sentence was lengthened by his restricted custody. Id. at 486-87. 27 Therefore, to establish a due process violation, Plaintiff must first show the deprivation 28 imposed an atypical and significant hardship on him in relation to the ordinary incidents of 3 K:\COMMON\Chmb_Anello\EVEN # CIVIL CASES\PRISONER 1983\LINDFORS, ERIC\10cv1606- dsm claims & serve SAC.wpd 10cv1606 MMA (AJB) 1 prison life. Sandin, 515 U.S. at 483-84. Plaintiff has failed to allege any facts from which the 2 Court could find there were atypical and significant hardships imposed upon him as a result of 3 the Defendants’ actions. Plaintiff must allege “a dramatic departure from the basic conditions” 4 of his confinement that would give rise to a liberty interest before he can claim a violation of due 5 process. Id. at 485; see also Keenan v. Hall, 83 F.3d 1083, 1088-89 (9th Cir. 1996), amended 6 by 135 F.3d 1318 (9th Cir. 1998). He has not; therefore the Court finds that Plaintiff has failed 7 to allege a liberty interest in remaining free of Ad-seg, and thus, has failed to state a due process 8 claim. See May, 109 F.3d at 565; Hewitt, 459 U.S. at 466; Sandin, 515 U.S. at 486 (holding that 9 placing an inmate in administrative segregation for thirty days “did not present the type of 10 atypical, significant deprivation in which a state might conceivably create a liberty interest.”). 11 B. Failure to protect claims 12 The only claims against Defendants Edwards and Adams appear to be that they allegedly 13 failed to protect him from the search and set him up to be falsely accused of having an inmate 14 weapon. A “failure to protect claim” arises from the Eighth Amendment’s prohibition against 15 cruel and unusual punishment requires that prison officials act reasonably in protecting inmates 16 from violence suffered at the hands of other prisoners. Farmer, 511 U.S. at 833; Berg v. 17 Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). However, to state a failure to protect claim, 18 Plaintiff must allege facts sufficient to show that Defendants were “deliberately indifferent,” that 19 they were aware of, but nevertheless consciously disregarded an excessive risk to his health or 20 safety. Farmer, 511 U.S. at 834. Here, Plaintiff’s “injury” is not an excessive risk to his health 21 or safety but rather an allegedly manufactured disciplinary charge that led to him spending time 22 in Ad-Seg. Thus, Plaintiff has failed to state an Eighth Amendment claim, or any claim, against 23 Defendants Edwards and Adams. 24 C. Religious claims 25 Plaintiff also states that he is bringing a “Freedom of Religion” claim. (SAC at 4.) 26 However, Plaintiff offers no other specific factual allegations nor does he clarify whether he 27 intends to bring these claims under the First Amendment or pursuant to the Religious Land Use 28 and Institutionalized Persons Act (“RLUIPA”). 4 K:\COMMON\Chmb_Anello\EVEN # CIVIL CASES\PRISONER 1983\LINDFORS, ERIC\10cv1606- dsm claims & serve SAC.wpd 10cv1606 MMA (AJB) 1 As to either Plaintiff’s potential First Amendment or RLUIPA claims, he fails to allege 2 facts sufficient to state a claim. “The right to exercise religious practices and beliefs does not 3 terminate at the prison door.” McElyea v. Babbitt, 833 F.2d 196, 197 (9th Cir. 1987) (per 4 curiam). In order to implicate the Free Exercise Clause of the First Amendment, the Plaintiff 5 must show that their belief is “sincerely held” and “rooted in religious belief.” See Shakur v. 6 Schiro, 514 F.3d 878, 884 (citing Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994). In addition to First Amendment protections, the Religious Land Use and Institutionalized 7 8 Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1 et. seq., provides: No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person – [¶] (1) is in furtherance of a compelling governmental interest; and [¶] (2) is the least restrictive means of furthering that compelling governmental interest. 9 10 11 12 13 42 U.S.C. § 2000cc-1(a) (emphasis added); see also San Jose Christian College v. Morgan Hill, 14 360 F.3d 1024, 1033-34 (9th Cir. 2004) (“RLUIPA ‘replaces the void provisions of RFRA’ . . . 15 and prohibits the government from imposing ‘substantial burdens’ on ‘religious exercise’ unless 16 there exists a compelling governmental interest and the burden is the least restrictive means of 17 satisfying the governmental interest.”). 18 RLUIPA defines religious exercise to include “any exercise of religion, whether or not 19 compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A); San Jose 20 Christian College, 360 F.3d at 1034. The party alleging a RLUIPA violation carries the initial 21 burden of demonstrating that a governmental practice constitutes a substantial burden on his 22 religious exercise. See 42 U.S.C. §§ 2000cc-1(a); 2000cc-2(b) (“[T]he plaintiff shall bear the 23 burden of persuasion on whether the law (including a regulation) or government practice that 24 is challenged by the claim substantially burdens the plaintiff’s exercise of religion.”).).Thus, the 25 Court DISMISSES Plaintiff’s First Amendment religious claims and RLUIPA claims. 26 /// 27 /// 28 /// 5 K:\COMMON\Chmb_Anello\EVEN # CIVIL CASES\PRISONER 1983\LINDFORS, ERIC\10cv1606- dsm claims & serve SAC.wpd 10cv1606 MMA (AJB) 1 D. Access to Court claims 2 Plaintiff also claims that he is bringing an access to courts claim without any additional 3 factual allegations. (See SAC at 4.) Prisoners do “have a constitutional right to petition the 4 government for redress of their grievances, which includes a reasonable right of access to the 5 courts.” O’Keefe v. Van Boening, 82 F.3d 322, 325 (9th Cir. 1996); accord Bradley v. Hall, 64 6 F.3d 1276, 1279 (9th Cir. 1995). In Bounds, 430 U.S. at 817, the Supreme Court held that “the 7 fundamental constitutional right of access to the courts requires prison authorities to assist 8 inmates in the preparation and filing of meaningful legal papers by providing prisoners with 9 adequate law libraries or adequate assistance from persons who are trained in the law.” Bounds 10 v. Smith, 430 U.S. 817, 828 (1977). To establish a violation of the right to access to the courts, 11 however, a prisoner must allege facts sufficient to show that: (1) a nonfrivolous legal attack on 12 his conviction, sentence, or conditions of confinement has been frustrated or impeded, and (2) 13 he has suffered an actual injury as a result. Lewis v. Casey, 518 U.S. 343, 353-55 (1996). An 14 “actual injury” is defined as “actual prejudice with respect to contemplated or existing litigation, 15 such as the inability to meet a filing deadline or to present a claim.” Id. at 348; see also Vandelft 16 v. Moses, 31 F.3d 794, 796 (9th Cir. 1994); Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir. 1989); 17 Keenan v. Hall, 83 F.3d 1083, 1093 (9th Cir. 1996). 18 Here, Plaintiff has failed to alleged any actions with any particularity that have precluded 19 his pursuit of a non-frivolous direct or collateral attack upon either his criminal conviction or 20 sentence or the conditions of his current confinement. See Lewis, 518 U.S. at 355 (right to 21 access to the courts protects only an inmate’s need and ability to “attack [his] sentence[], directly 22 or collaterally, and ... to challenge the conditions of [his] confinement.”); see also Christopher 23 v. Harbury, 536 U.S. 403, 415 (2002) (the non-frivolous nature of the “underlying cause of 24 action, whether anticipated or lost, is an element that must be described in the complaint, just 25 as much as allegations must describe the official acts frustrating the litigation.”). Moreover, 26 Plaintiff has not alleged facts sufficient to show that he has been actually injured by any specific 27 defendant’s actions. Lewis, 518 U.S. at 351. 28 /// 6 K:\COMMON\Chmb_Anello\EVEN # CIVIL CASES\PRISONER 1983\LINDFORS, ERIC\10cv1606- dsm claims & serve SAC.wpd 10cv1606 MMA (AJB) 1 In short, Plaintiff has not alleged that “a complaint he prepared was dismissed,” or that 2 he was “so stymied” by any individual defendant’s actions that “he was unable to even file a 3 complaint,” direct appeal or petition for writ of habeas corpus that was not “frivolous.” Lewis, 4 518 U.S. at 351; Christopher, 536 U.S. at 416 (“like any other element of an access claim[,] ... 5 the predicate claim [must] be described well enough to apply the ‘nonfrivolous’ test and to show 6 that the ‘arguable’ nature of the underlying claim is more than hope.”). Therefore, Plaintiff’s 7 access to courts claims must be dismissed for failing to state a claim. 8 E. Respondeat Superior 9 Finally, Plaintiff continues to name Cate and Small as Defendants but fails to set forth 10 sufficient factual allegations with regard to these Defendants in the body of Plaintiff’s Second 11 Amended Complaint. Thus, it appears that Plaintiff seeks to hold these Defendants liable in 12 their supervisory capacity. However, there is no respondeat superior liability under 42 U.S.C. 13 § 1983. Palmer v. Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). Instead, “[t]he inquiry into 14 causation must be individualized and focus on the duties and responsibilities of each individual 15 defendant whose acts or omissions are alleged to have caused a constitutional deprivation.” Leer 16 v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo v. Goode, 423 U.S. 362, 370-71 17 (1976)). In order to avoid the respondeat superior bar, Plaintiff must allege personal acts by each 18 individual Defendant which have a direct causal connection to the constitutional violation at 19 issue. See Sanders v. Kennedy, 794 F.2d 478, 483 (9th Cir. 1986); Taylor v. List, 880 F.2d 1040, 20 1045 (9th Cir. 1989). 21 Supervisory prison officials may only be held liable for the allegedly unconstitutional 22 violations of a subordinate if Plaintiff sets forth allegations which show: (1) how or to what 23 extent they personally participated in or directed a subordinate’s actions, and (2) in either acting 24 or failing to act, they were an actual and proximate cause of the deprivation of Plaintiff’s 25 constitutional rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). As currently pleaded, 26 however, Plaintiff’s First Amended Complaint fails to set forth facts which might be liberally 27 construed to support an individualized constitutional claim against these Defendants. 28 /// 7 K:\COMMON\Chmb_Anello\EVEN # CIVIL CASES\PRISONER 1983\LINDFORS, ERIC\10cv1606- dsm claims & serve SAC.wpd 10cv1606 MMA (AJB) F. 1 Remaining Defendants 2 As for Defendants Rocha, Resler, Fregoso and Loya, the Court finds Plaintiff’s 3 allegations against them sufficient to survive the sua sponte screening required by 28 U.S.C. 4 §§ 1915(e)(2) and 1915A(b).1 See Lopez, 203 F.3d at 1126-27. Accordingly, the Court finds 5 Plaintiff is entitled to U.S. Marshal service on his behalf. See 28 U.S.C. § 1915(d) (“The officers 6 of the court shall issue and serve all process, and perform all duties in [IFP] cases.”); 7 FED.R.CIV.P. 4(c)(3) (“[T]he court may order that service be made by a United States marshal 8 or deputy marshal ... if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. 9 § 1915.”). 10 III CONCLUSION AND ORDER 11 Good cause appearing, IT IS HEREBY ORDERED that: 12 1. Plaintiff’s Motion for Permission for Removal of Exhibits [ECF No. 20] is 13 GRANTED. The Clerk of Court is directed to remove the Exhibits attached to Plaintiff’s 14 original Complaint and re-attach these Exhibits to Plaintiff’s Second Amended Complaint. 2. 15 Defendants Ochoa, Janda, Trujillo, Stratton, Beltran, Davis, Jimenez, Bettencourt, 16 Garcia, Rutledge, Rodriguez, Mata and Manning are DISMISSED from this action. King, 814 17 F.2d at 565. 3. 18 Plaintiff’s Fourteenth Amendment due process claims, Eighth Amendment failure 19 to protect claims, access to courts claim and religious claims are DISMISSED for failing to state 20 a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2) & § 1915A(b). 4. 21 All claims against Defendants Small, Cate, Edwards and Adams are DISMISSED 22 for failing to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2) & 23 § 1915A(b). 24 /// 25 /// 26 /// 27 1 28 Plaintiff is cautioned that “the sua sponte screening and dismissal procedure is cumulative of, and not a substitute for, any subsequent Rule 12[] motion that [a defendant] may choose to bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007). 8 K:\COMMON\Chmb_Anello\EVEN # CIVIL CASES\PRISONER 1983\LINDFORS, ERIC\10cv1606- dsm claims & serve SAC.wpd 10cv1606 MMA (AJB) 1 IT IS FURTHER ORDERED that: 2 5. The Clerk shall issue a summons as to Plaintiff’s Second Amended Complaint 3 [ECF No. 18] and Exhibits upon Defendants Rocha, Resler, Fregoso and Loya and shall 4 forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each Defendant. In 5 addition, the Clerk shall provide Plaintiff with a copy of this Order and a copy of his Second 6 Amended Complaint, Exhibits and the summons so that he may serve Defendants. Upon receipt 7 of this “IFP Package,” Plaintiff is directed to complete the Form 285s as completely and 8 accurately as possible, and to return them to the United States Marshal according to the 9 instructions provided by the Clerk in the letter accompanying his IFP package. Upon receipt, 10 the U.S. Marshal shall serve a copy of the Second Amended Complaint, Exhibits and summons 11 upon Defendants as directed by Plaintiff on the USM Form 285s. All costs of service shall be 12 advanced by the United States. See 28 U.S.C. § 1915(d); FED.R.CIV.P. 4(c)(3). 5. 13 Defendants are thereafter ORDERED to reply to Plaintiff’s Second Amended 14 Complaint within the time provided by the applicable provisions of Federal Rule of Civil 15 Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted 16 to “waive the right to reply to any action brought by a prisoner confined in any jail, prison, or 17 other correctional facility under section 1983,” once the Court has conducted its sua sponte 18 screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a preliminary 19 determination based on the face on the pleading alone that Plaintiff has a “reasonable 20 opportunity to prevail on the merits,” the defendant is required to respond). 6. 21 Plaintiff shall serve upon the Defendants or, if appearance has been entered by 22 counsel, upon Defendants’ counsel, a copy of every further pleading or other document 23 submitted for consideration of the Court. Plaintiff shall include with the original paper to be 24 filed with the Clerk of the Court a certificate stating the manner in which a true and correct copy 25 of any document was served on Defendants, or counsel for Defendants, and the date of service. 26 Any paper received by the Court which has not been filed with the Clerk or which fails to 27 include a Certificate of Service will be disregarded. 28 /// 9 K:\COMMON\Chmb_Anello\EVEN # CIVIL CASES\PRISONER 1983\LINDFORS, ERIC\10cv1606- dsm claims & serve SAC.wpd 10cv1606 MMA (AJB) 1 2 3 4 7. Plaintiff shall not be limited in the amount of photocopies in this matter as the Court has found them “necessary to advance litigation.” Cal.Regs. Title 15 § 3162(c). IT IS SO ORDERED. DATED: June 9, 2011 5 6 7 Hon. Michael M. Anello United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 K:\COMMON\Chmb_Anello\EVEN # CIVIL CASES\PRISONER 1983\LINDFORS, ERIC\10cv1606- dsm claims & serve SAC.wpd 10cv1606 MMA (AJB)
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