(PC) Ruiz v. Leon ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROGELIO MAY RUIZ, No. 2:19-cv-2201 JAM CKD P 12 Plaintiff, 13 v. ORDER 14 D. LEON, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and 18 has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 19 I. Application to Proceed In Forma Pauperis 20 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. 21 § 1915(a). (ECF No. 2, 6.) Accordingly, the request to proceed in forma pauperis will be 22 granted. 23 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 24 §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 25 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 26 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 27 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 28 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 1 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 2 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 3 § 1915(b)(2). 4 II. Statutory Screening of Prisoner Complaints 5 The court is required to screen complaints brought by prisoners seeking relief against a 6 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 7 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 8 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[] 9 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). 10 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 11 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 12 Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal 13 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639, 14 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as 15 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a 16 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. 17 Franklin, 745 F.2d at 1227-28 (citations omitted). 18 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 19 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 20 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 21 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 22 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context 23 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 24 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure 25 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a 26 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 27 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he pleading must contain 28 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 1 cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 2 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 3 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 4 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 5 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 6 content that allows the court to draw the reasonable inference that the defendant is liable for the 7 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 8 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 9 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976), as well as construe the pleading in the 10 light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, Jenkins v. 11 McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 12 III. Complaint 13 The complaint alleges that defendants Leon, Dominguez, Lynch, and Bales violated 14 plaintiff’s constitutional rights by retaliating against him. Specifically, plaintiff alleges that Leon 15 filed a false disciplinary report against plaintiff and left plaintiff in the cage for three hours. (ECF 16 No. 1 at 3.) Dominguez then found him guilty of the disciplinary charge without any evidence 17 except Leon’s report, failed to send plaintiff a copy of his third-level review in Spanish, and did 18 not allow him to have an investigator or interpreter that spoke Spanish. (Id. at 4.) Lynch 19 allegedly lied about sending plaintiff a final copy of his second-level response, said that plaintiff 20 was provided with an interpreter, and failed to have an investigative employee assigned. (Id. at 21 5.) Finally, Bales failed to grant plaintiff’s requests for an investigative employee and video 22 recordings and found him guilty without any evidence except Leon’s report. (Id. at 6.) 23 IV. Failure to State a Claim 24 A. Retaliation 25 A viable First Amendment claim for retaliation must establish the following five 26 elements: “(1) An assertion that a state actor took some adverse action against an inmate (2) 27 because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 28 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 1 correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote and 2 citations omitted). Plaintiff need not prove that the alleged retaliatory action, in itself, violated a 3 constitutional right. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (to prevail on a retaliation 4 claim, plaintiff “need not establish an independent constitutional interest” was violated); Hines v. 5 Gomez, 108 F.3d 265, 269 (9th Cir. 1997) (“[P]risoners may still base retaliation claims on harms 6 that would not raise due process concerns.”). 7 Although plaintiff claims that defendants’ conduct was retaliatory, he does not explain 8 what protected conduct he participated in that caused defendants to retaliate against him. Without 9 facts showing that defendants took adverse action against plaintiff because of some protected 10 conduct, he cannot state a claim for retaliation. 11 B. Due Process 12 It appears as though plaintiff may also be attempting to allege that defendants denied him 13 due process at various points in the disciplinary process. To the extent he may be attempting to 14 allege that Leon violated his due process rights by filing a false disciplinary, this claim must fail 15 because prisoners do not have a right to be free from false accusations. Sprouse v. Babcock, 870 16 F.2d 450, 452 (8th Cir. 1989) (“Sprouse’s claims based on the falsity of the charges and the 17 impropriety of Babcock’s involvement in the grievance procedure, standing alone, do not state 18 constitutional claims.”); Freeman v. Rideout, 808 F.2d 949, 951 (2nd Cir. 1986) (“The prison 19 inmate has no constitutionally guaranteed immunity from being falsely or wrongly accused of 20 conduct which may result in the deprivation of a protected liberty interest.”); Hanrahan v. Lane, 21 747 F.2d 1137, 1141 (7th Cir. 1984) (“[A]n allegation that a prison guard planted false evidence 22 which implicates an inmate in a disciplinary infraction fails to state a claim for which relief can 23 be granted where the procedural due process protections . . . are provided.”). 24 Plaintiff also appears to allege deficiencies with the disciplinary hearing itself. However, 25 “[p]rison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of 26 rights due a defendant in such proceedings does not apply.” Wolff v. McDonnell, 418 U.S. 539, 27 556 (1974) (citation omitted). An inmate subject to disciplinary sanctions that include the loss of 28 good-time credits must receive (1) at least twenty-four-hour advanced written notice of the 1 charges against him, id. at 563-64; (2) “a written statement by the factfinders as to the evidence 2 relied on and reasons for the disciplinary action,” id. at 564-65 (citation and internal quotation 3 marks omitted); (3) an opportunity “to call witnesses and present documentary evidence in his 4 defense when permitting him to do so will not be unduly hazardous to institutional safety or 5 correctional goals,” id. at 566; (4) assistance at the hearing if he is illiterate or if the matter is 6 complex, id. at 570; and (5) a sufficiently impartial fact finder, id. at 570-71. A finding of guilt 7 must also be “supported by some evidence in the record.” Superintendent v. Hill, 472 U.S. 445, 8 454 (1985). There is no indication that plaintiff lost good-time credits as a result of his 9 disciplinary conviction, and therefore no indication that he was entitled to the due process 10 outlined in Wolff. Even if he was entitled to such process, although he claims he was found 11 guilty without evidence, he also explicitly states that he was found guilty based on Leon’s report 12 and makes no allegation that any of the other defendants had reason to believe the report was 13 falsified. Furthermore, while plaintiff alleges that defendants Dominguez, Lynch, and Bales 14 denied him an interpreter or investigative employee, the attachments to the complaint show that 15 these defendants were responsible for responding to or investigating plaintiff’s appeal of the 16 disciplinary conviction, and there is no due process right to an interpreter or investigative 17 employee as part of the appeals process because there is no right to a particular appeals process. 18 Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (inmates lack a liberty interest in the 19 processing of an inmate appeal because there is no “separate constitutional entitlement to a 20 specific prison grievance procedure” (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988))). 21 V. Leave to Amend 22 If plaintiff chooses to file a first amended complaint, he must demonstrate how the 23 conditions about which he complains resulted in a deprivation of his constitutional rights. Rizzo 24 v. Goode, 423 U.S. 362, 370-71 (1976). Also, the complaint must allege in specific terms how 25 each named defendant is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th 26 Cir. 1981). There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link 27 or connection between a defendant’s actions and the claimed deprivation. Id.; Johnson v. Duffy, 28 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, “[v]ague and conclusory allegations of official 1 participation in civil rights violations are not sufficient.” Ivey v. Bd. of Regents, 673 F.2d 266, 2 268 (9th Cir. 1982) (citations omitted). 3 Plaintiff is also informed that the court cannot refer to a prior pleading in order to make 4 his first amended complaint complete. Local Rule 220 requires that an amended complaint be 5 complete in itself without reference to any prior pleading. This is because, as a general rule, an 6 amended complaint supersedes the original complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 7 1967) (citations omitted), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th 8 Cir. 2012) (claims dismissed with prejudice and without leave to amend do not have to be re-pled 9 in subsequent amended complaint to preserve appeal). Once plaintiff files a first amended 10 complaint, the original complaint no longer serves any function in the case. Therefore, in an 11 amended complaint, as in an original complaint, each claim and the involvement of each 12 defendant must be sufficiently alleged. 13 VI. Motion for Appointment of Counsel and an Interpreter 14 Plaintiff has also requested the appointment of counsel and an interpreter. The United 15 States Supreme Court has ruled that district courts lack authority to require counsel to represent 16 indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 17 (1989). In certain exceptional circumstances, the district court may request the voluntary 18 assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 19 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 20 “When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the 21 likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims 22 pro se in light of the complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965, 23 970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden 24 of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to 25 most prisoners, such as lack of legal education and limited law library access, do not establish 26 exceptional circumstances that would warrant a request for voluntary assistance of counsel. In 27 the present case, plaintiff requests counsel who speaks Spanish on the grounds that he does not 28 speak English and is unable to litigate because he does not understand court rules or terminology. 1 ECF No. 3 at 1. These circumstances are common to many inmates and do not establish the 2 exceptional circumstances necessary to warrant the appointment of counsel. Furthermore, in light 3 of the fact that the complaint is being dismissed with leave to amend, it is not clear that plaintiff 4 has a likelihood of success on the merits. 5 Plaintiff has also requested that the court appoint an interpreter, presumably to assist him 6 in submitting filings and interpreting the filings in this action. Id. However, “‘the expenditure of 7 public funds [on behalf of an indigent litigant] is proper only when authorized by Congress,’” 8 Tedder v. Odel, 890 F.2d 210, 211 (9th Cir. 1989) (alteration in original) (quoting United States 9 v. MacCollom, 426 U.S. 317, 321 (1976)), and plaintiff has not identified, nor is the court aware 10 of, any authority that authorizes the appointment of an interpreter to assist plaintiffs in civil 11 actions. The request for appointment of a translator will therefore be denied.1 12 VII. Plain Language Summary of this Order for a Pro Se Litigant 13 Your request to proceed in forma pauperis is granted and you are not required to pay the 14 entire filing fee immediately. 15 The complaint is dismissed with leave to amend because the facts you have alleged are not 16 enough to state a claim for relief. You have not explained what defendants retaliated against you 17 for doing and if you are trying to make a due process claim you have not shown that you lost 18 good-time credits or that defendants denied you due process as part of the disciplinary hearing. 19 If you choose to amend your complaint, the first amended complaint must include all of 20 the claims you want to make because the court will not look at the claims or information in the 21 original complaint. Any claims not in the first amended complaint will not be considered. 22 In accordance with the above, IT IS HEREBY ORDERED that: 23 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted. 24 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 25 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 26 1 The court notes that although the instant motion is largely in Spanish, it appears that plaintiff 27 has been able to obtain translation assistance in pursuing this matter, as part of the motion and the entirety of the complaint are in English. Plaintiff is cautioned that in order to be considered, 28 filings must be in English. wOAIG 2 LUV □□ □□□ VEAINTE NS INES MUU, API ere PY OMI 1 | §1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 2 | Director of the California Department of Corrections and Rehabilitation filed concurrently 3 | herewith. 4 3. Plaintiff's motion for appointment of counsel and an interpreter (ECF No. 3) is denied. 5 4. Plaintiff's complaint is dismissed with leave to amend. 6 5. Within thirty days from the date of service of this order, plaintiff may file an amended 7 | complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 8 | Procedure, and the Local Rules of Practice. The amended complaint must bear the docket 9 | number assigned this case and must be labeled “First Amended Complaint.” Plaintiff must file an 10 | original and two copies of the amended complaint. Failure to file an amended complaint in 11 |} accordance with this order will result in dismissal of this action. 12 6. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint 13 | form used in this district. 14 | Dated: June 11, 2020 Gh rd □ | x 15 CAROLYN K. DELANEY) 16 UNITED STATES MAGISTRATE JUDGE 17 13:1uiz2201.14.new 18 19 20 21 22 23 24 25 26 27 28