(PC) Cyprian v. Lozano ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 LAWRENCE CYPRIAN, No. 2:19-cv-1925-EFB P 11 Plaintiff, 12 v. ORDER 13 M. CROSS, 14 Defendant. 15 16 Plaintiff is a state prisoner proceeding without counsel in an action brought pursuant to 42 17 U.S.C. § 1983.1 The court dismissed his original complaint with leave to amend on April 7, 18 2020. ECF No. 7. Plaintiff has since filed an amended complaint which is screened below. ECF 19 No. 12. 20 I. Screening Requirement and Standards 21 Federal courts must engage in a preliminary screening of cases in which prisoners seek 22 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 23 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 24 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 25 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 26 relief.” Id. § 1915A(b). 27 1 This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. 28 § 636(b)(1). 1 This standard is echoed in 28 U.S.C. § 1915(e)(2), which requires that courts dismiss a 2 case in which a plaintiff proceeds in forma pauperis at any time if it determines, among other 3 things, that the action “is frivolous or malicious,” “fails to state a claim on which relief may be 4 granted,” or “seeks monetary relief against a defendant who is immune from such relief.” “[The] 5 term ‘frivolous,’ when applied to a complaint, embraces not only the inarguable legal conclusion, 6 but also the fanciful factual allegation.” Neitzke v. Williams, 490 U.S. 319, 325 (1989) 7 (discussing the predecessor to modern § 1915(e)(2), former § 1915(d)). Thus, § 1915(e)(2) 8 allows judges to dismiss a claim based on factual allegations that are clearly baseless, such as 9 facts describing “fantastic or delusional scenarios.” Id. at 327-38. 10 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 11 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 12 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 13 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 14 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 15 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 16 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 17 U.S. 662, 679 (2009). 18 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 19 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 20 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 21 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 22 678. 23 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 24 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 25 content that allows the court to draw the reasonable inference that the defendant is liable for the 26 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 27 ///// 28 ///// 1 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 2 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 3 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 4 II. Screening Order 5 A. Allegations of the Complaint 6 Plaintiff alleges that defendant Cross, a correctional counselor at plaintiff’s institution, 7 located a form 128B informative chrono (a form used to document non-disciplinary information 8 about an inmate) in his electronic central file or “the Strategic Offender Management System.” 9 ECF No. 12 at 3. Cross “knew or should have known that the information the 128B was an 10 account based on ‘Hearsay Evidence’ and is inadmissible.” Id. Without providing any notice to 11 plaintiff, Cross placed the chrono in plaintiff’s file to be reviewed by the Board of Parole 12 Hearings. Id. Plaintiff does not inform the court what information was contained in the form or 13 what effect the inclusion of the form had on any particular parole consideration hearing. He 14 alleges that Cross violated his federal due process rights along with some state law claims. 15 B. Analysis 16 1. Due Process 17 There is “no constitutional or inherent right of a convicted person to be conditionally 18 released before the expiration of a valid sentence.” Greenholtz v. Inmates of Nebraska Penal & 19 Corr. Complex, 442 U.S. 1, 7 (1979). But a state’s parole laws may give rise to a constitutionally 20 protected liberty interest. See Board of Pardons v. Allen, 482 U.S. 369, 376-78 (1987); 21 Greenholtz, 442 U.S. at 11-12. The U.S. Court of Appeals for the Ninth Circuit has held that 22 “California’s parole scheme gives rise to a cognizable liberty interest in release on parole.” 23 McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002). 24 Accordingly, California authorities must provide some procedural protections when 25 determining parole eligibility. Swarthout v. Cooke, 562 U.S. 216, 219 (2011). The procedures 26 required are, however, minimal – prisoners must be provided only an opportunity to be heard and 27 a statement of reasons why parole was denied. Id. at 220. 28 ///// 1 Thus, there is no federal due process right to have only accurate information reviewed by 2 the parole board. E.g., Jenkins v. Drake, CV 19-5656 ODW (PVC), 2020 U.S. Dist. LEXIS 3 94490, at *34-35 (C.D. Cal. May 5, 2020) (relying on Sandin v. Conner, 515 U.S. 472, 487 4 (1995)). So long as the inmate is provided an opportunity to respond to his record of alleged 5 misconduct and provided a statement of reasons for the denial, due process is satisfied. Sandin, 6 515 U.S. at 487. 7 In the original screening order, the court informed plaintiff that the allegation that 8 defendant placed a false chrono in his parole eligibility file was insufficient to state a federal due 9 process claim. It directed plaintiff that, if he believed he had been denied due process at a 10 particular parole suitability hearing – that is, denied either the opportunity to be heard or a 11 statement of reasons for the decision – he could so allege in an amended complaint. Plaintiff has 12 not done so. He does not provide any information regarding any parole hearing much less 13 information regarding the use of the contested 128B chrono by the parole board. He does not 14 allege that he was not provided with a hearing or a statement of reasons for his parole denial. 15 Thus, the due process claim again fails. 16 2. State Law Claims 17 The court declines to review plaintiff’s state law claims in the absence of a cognizable 18 federal claim. See 28 U.S.C. § 1367(c)(3). 19 3. Leave to Amend 20 The court will grant plaintiff one last opportunity to file an amended complaint to state a 21 cognizable federal claim. 22 Any amended complaint must comply with Federal Rule of Civil Procedure 8(a)’s 23 direction to state each claim in a short and plain manner. The amended complaint must contain 24 facts – not legal conclusions – supporting each element of the claims alleged. 25 Any amended complaint must not join unrelated claims. Federal Rule of Civil Procedure 26 18(a) allows a plaintiff to assert multiple claims when they are against a single defendant. 27 Federal Rule of Civil Procedure 20(a)(2) allows a plaintiff to join multiple defendants to a lawsuit 28 where the right to relief arises out of the same “transaction, occurrence, or series of transactions 1 or occurrences” and “any question of law or fact common to all defendants will arise in the 2 action.” Unrelated claims against different defendants must therefore be pursued in separate 3 lawsuits. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). This rule is intended “not only 4 to prevent the sort of morass [a multiple claim, multiple defendant] suit produce[s], but also to 5 ensure that prisoners pay the required filing fees— for the Prison Litigation Reform Act limits to 6 3 the number of frivolous suits or appeals that any prisoner may file without prepayment of the 7 required fees. 28 U.S.C. § 1915(g).” Id. 8 Any amended complaint must identify as a defendant only persons who personally 9 participated in a substantial way in depriving him of a federal constitutional right. Johnson v. 10 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a 11 constitutional right if he does an act, participates in another’s act or omits to perform an act he is 12 legally required to do that causes the alleged deprivation). 13 It must also contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a). 14 Plaintiff may not change the nature of this suit by alleging new, unrelated claims in the 15 amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 16 Any amended complaint must be written or typed so that it so that it is complete in itself 17 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 18 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 19 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 20 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 21 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 22 1967)). 23 The court cautions plaintiff that failure to comply with the Federal Rules of Civil 24 Procedure, this court’s Local Rules, or any court order may result in this action being dismissed. 25 See E.D. Cal. L.R. 110. 26 III. Summary of Order 27 Accordingly, it is ORDERED that the amended complaint is dismissed with leave to file a 28 second amended complaint within 30 days from the date of service of this order. The second wOoOe 2: fh UV ETB MMVUUETIOCII tO PR Ore tre PF Aye Vv 1 | amended complaint must bear the docket number assigned to this case and be titled “Second 2 || Amended Complaint.” Failure to comply with this order may result in a recommendation that 3 || this action be dismissed for failure to state a claim and/or failure to prosecute. If plaintiff files a 4 | second amended complaint stating a cognizable claim the court will proceed with service of 5 || process by the United States Marshal. 6 | DATED: August 27, 2020. 7 Dating : heh bie g EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28