(PC) Merriman v. Vila ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DOMINIQUE MERRIMAN, No. 2:19-cv-2011 MCE CKD P 12 Plaintiff, 13 v. ORDER 14 J. VILA, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. § 18 1983. On March 31, 2020, the court screened plaintiff’s complaint as the court is required to due 19 under 28 U.S.C. § 1915A(a). Plaintiff’s complaint was dismissed with leave to amend and 20 plaintiff was given instructions as to the contents of his amended complaint. Plaintiff has filed an 21 amended complaint which now must be screened. 22 As plaintiff now knows, the court must dismiss a complaint or portion thereof if a prisoner 23 has raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which 24 relief may be granted, or that seek monetary relief from a defendant who is immune from such 25 relief. 28 U.S.C. § 1915A(b)(1), (2). 26 In his amended complaint, plaintiff asserts he was denied process due under the 27 Fourteenth Amendment with respect to prisoner classification proceedings which resulted in 28 plaintiff being retained in segregated housing. As plaintiff was informed in the last screening 1 order, in order to state a cognizable claim for violation of due process plaintiff must allege facts 2 which suggest that he was deprived of a protected liberty interest. Such liberty interests are 3 “generally limited to freedom from restraint which, while not exceeding the sentence in such an 4 unexpected manner as to give rise to protection by the Due Process Clause of its own force, 5 [citations omitted], nonetheless imposes atypical and significant hardship on the inmate in 6 relation to the ordinary incidents of prison life.” Sandin v. Connor, 515 U.S. 472, 484 (1995). 7 Plaintiff alleges that while in segregated housing, plaintiff was denied privileges like use 8 of a telephone and daily showers. Plaintiff does not indicate how long he was forced to remain in 9 segregated housing pursuant to the order challenged. 10 Again, plaintiff fails to state an actionable claim. Loss of the privileges identified by 11 plaintiff for short periods of time do not amount to atypical and significant hardship. See id. at 12 486 (30-day stay in segregated housing not atypical and significant hardship). By contrast, the 13 Supreme Court has held that proceedings resulting in a prisoner being transferred to a “supermax” 14 facility for an indefinite period where almost all human contact is prohibited and consideration 15 for parole is not permitted created a protected liberty interest. Wilkinson v. Austin, 545 U.S. 209, 16 223-24 (2005). At such proceedings, the process due under the Fourteenth Amendment includes 17 notice of the factual basis leading to consideration for placement, a fair opportunity for rebuttal 18 and a short statement of reasons as to why placement is warranted. Id. at 225-26. 19 For these reasons, plaintiff’s amended complaint will be dismissed. Plaintiff will be 20 granted one final opportunity to state an actionable claim in a second amended complaint. In 21 order to state a claim upon which relief can be granted, plaintiff must point to facts indicating that 22 as a direct result of his being retained in segregated housing on January 31, 2019 he was 23 subjected to “atypical and significant hardship” as described above and, at the hearing, plaintiff 24 was denied the procedural protections described in Wilkinson. 25 Plaintiff is informed that the court cannot refer to a prior pleading in order to make 26 plaintiff’s second amended complaint complete. Local Rule 220 requires that any amended 27 complaint be complete in itself without reference to any prior pleading. This is because, as a 28 general rule, an amended complaint supersedes any prior complaint. See Loux v. Rhay, 375 F.2d 1 55,57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no longer 2 || serves any function in the case. Therefore, in an amended complaint, as in an original complaint, 3 | each claim and the involvement of each defendant must be sufficiently alleged. 4 In accordance with the above, IT IS HEREBY ORDERED that: 5 1. Plaintiff's amended complaint is dismissed. 6 2. Plaintiff is granted thirty days from the date of service of this order to file a second 7 | amended complaint that complies with the requirements of the Civil Rights Act, the Federal Rules 8 | of Civil Procedure, and the Local Rules of Practice. The amended complaint must bear the 9 | docket number assigned this case and must be labeled “Amended Complaint.” Failure to file an 10 || amended complaint in accordance with this order will result in a recommendation that this action 11 | be dismissed. 12 |) Dated: April 14, 2020 eo dp. A Gx 13 CAROLYN K. DELANEY) 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 | 4 18 merri2011.14(2) 19 20 21 22 23 24 25 26 27 28