(PC) Rabb v. Pickett ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAMEN D. RABB, No. 2:21-cv-00689-CKD P 12 Plaintiff, 13 v. ORDER 14 JASON PICKETT, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 18 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 19 U.S.C. § 636(b)(1). 20 Plaintiff requests leave to proceed in forma pauperis. As plaintiff has submitted a 21 declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 23 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the 24 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 25 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 26 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by 27 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 28 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 1 I. Screening Requirement 2 The court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 4 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 5 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 6 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 7 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 8 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 9 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 10 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 11 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 12 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 13 Cir. 1989); Franklin, 745 F.2d at 1227. 14 In order to avoid dismissal for failure to state a claim a complaint must contain more than 15 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 16 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 17 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 18 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 19 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 20 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 21 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 22 at 678. When considering whether a complaint states a claim upon which relief can be granted, 23 the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and 24 construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 25 U.S. 232, 236 (1974). 26 II. Allegations in the Complaint 27 At all times relevant to the allegations in the complaint, plaintiff was an inmate at High 28 Desert State Prison (“HDSP”). He names the Warden, Jason Pickett, and the Associate Warden, 1 B. Kibler, at HDSP as defendants in this action. ECF No. 1 at 2. Although not entirely clear, it 2 appears to the court that defendant Kibler failed to schedule a classification hearing for plaintiff in 3 February 2021. ECF No. 1 at 4. Plaintiff also alleges that defendant Pickett misled the Office of 4 the Inspector General about grievances that plaintiff filed. ECF No. 1 at 6. According to 5 plaintiff, defendant Pickett was generally deficient in his supervision of employees at HDSP. 6 ECF No. 1 at 7. By way of relief, plaintiff seeks monetary damages and declaratory relief. ECF 7 No. 1 at 3. 8 III. Legal Standards 9 The following legal standards are being provided to plaintiff based on his pro se status as 10 well as the nature of the allegations in his complaint. 11 A. Linkage Requirement 12 The civil rights statute requires that there be an actual connection or link between the 13 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 14 Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 15 (1976). The Ninth Circuit has held that “[a] person ‘subjects' another to the deprivation of a 16 constitutional right, within the meaning of section 1983, if he does an affirmative act, participates 17 in another's affirmative acts or omits to perform an act which he is legally required to do that 18 causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th 19 Cir. 1978) (citation omitted). In order to state a claim for relief under section 1983, plaintiff must 20 link each named defendant with some affirmative act or omission that demonstrates a violation of 21 plaintiff's federal rights. 22 B. Supervisory Liability 23 Government officials may not be held liable for the unconstitutional conduct of their 24 subordinates under a theory of respondeat superior. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) 25 (“In a § 1983 suit ... the term “supervisory liability” is a misnomer. Absent vicarious liability, 26 each Government official, his or her title notwithstanding is only liable for his or her own 27 misconduct.”). When the named defendant holds a supervisory position, the causal link between 28 the defendant and the claimed constitutional violation must be specifically alleged; that is, a 1 plaintiff must allege some facts indicating that the defendant either personally participated in or 2 directed the alleged deprivation of constitutional rights or knew of the violations and failed to act 3 to prevent them. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Taylor v. List, 880 F.2d 4 1040, 1045 (9th Cir. 1989); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). 5 C. Procedural Due Process 6 The existence of a prison grievance procedure establishes a procedural right only and 7 “does not confer any substantive right upon the inmates.” Buckley v. Barlow, 997 F.2d 494, 495 8 (8th Cir. 1993) (citation omitted); see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) 9 (no liberty interest in processing of appeals because no entitlement to a specific grievance 10 procedure). This means that a prison official’s action in reviewing an inmate grievance cannot 11 serve as a basis for liability under Section 1983. Buckley, 997 F.2d at 495. “Only persons who 12 cause or participate in the violations are responsible. Ruling against a prisoner on an 13 administrative complaint does not cause or contribute to the violation. A guard who stands and 14 watches while another guard beats a prisoner violates the Constitution; a guard who rejects an 15 administrative complaint about a completed act of misconduct does not.” George v. Smith, 507 16 F.3d 605, 609-10 (7th Cir. 2007) (citations omitted). 17 In order to state a cognizable claim for violation of due process during things such as 18 custody classification level hearings, plaintiff must allege facts which suggest that he was 19 deprived of a protected liberty interest. Such liberty interests are “generally limited to freedom 20 from restraint which, while not exceeding the sentence in such an unexpected manner as to give 21 rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and 22 significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. 23 Connor, 515 U.S. 472, 484 (1995). 24 D. Retaliation 25 “Within the prison context, a viable claim of First Amendment retaliation entails five 26 basic 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) (citations omitted). 2 Filing an inmate grievance is a protected action under the First Amendment. Bruce v. Ylst, 351 3 F.3d 1283, 1288 (9th Cir. 2003). A prison transfer may also constitute an adverse action. See 4 Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005) (recognizing an arbitrary confiscation and 5 destruction of property, initiation of a prison transfer, and assault as retaliation for filing inmate 6 grievances); Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (finding that a retaliatory prison 7 transfer and double-cell status can constitute a cause of action for retaliation under the First 8 Amendment). 9 IV. Analysis 10 The court has reviewed plaintiff’s complaint and finds that it fails to state a claim upon 11 which relief can be granted under federal law. To the extent that plaintiff is attempting to raise a 12 substantive due process claim, plaintiff has not alleged that he has suffered an atypical and 13 significant hardship as a result of defendant Kibler’s failure to schedule a classification hearing. 14 Nor do the allegations against defendant Pickett in his supervisory capacity state a cognizable 15 claim for relief. Accordingly, this action must be dismissed. The court will, however, grant leave 16 to file an amended complaint. 17 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 18 complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. 19 Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, in his amended complaint, plaintiff must allege in 20 specific terms how each named defendant is involved. There can be no liability under 42 U.S.C. 21 § 1983 unless there is some affirmative link or connection between a defendant’s actions and the 22 claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976). Furthermore, vague and conclusory 23 allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of 24 Regents, 673 F.2d 266, 268 (9th Cir. 1982). 25 Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to 26 make plaintiff’s amended complaint complete. Local Rule 220 requires that an 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 the original complaint. See Loux v. Rhay, 375 1 |} F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 2 || longer serves any function in the case. Therefore, in an amended complaint, as in an original 3 || complaint, each claim and the involvement of each defendant must be sufficiently alleged. 4 V. Plain Language Summary for Pro Se Party 5 The following information is meant to explain this order in plain English and is not 6 || intended as legal advice. 7 The court has reviewed the allegations in your complaint and determined that they do not 8 | state any claim against the defendants. Your complaint is being dismissed, but you are being 9 || given the chance to fix the problems identified in this screening order. 10 Although you are not required to do so, you may file an amended complaint within 30 11 | days from the date of this order. If you choose to file an amended complaint, pay particular 12 || attention to the legal standards identified in this order which may apply to your claims. 13 In accordance with the above, IT IS HEREBY ORDERED that: 14 1. Plaintiff's request for leave to proceed in forma pauperis (ECF No. 14) is granted. 15 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees 16 || shall be collected and paid in accordance with this court’s order to the Director of the California 17 || Department of Corrections and Rehabilitation filed concurrently herewith. 18 3. Plaintiff's complaint is dismissed. 19 4. Plaintiff is granted thirty days from the date of service of this order to file an amended 20 | complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 21 || Procedure, and the Local Rules of Practice. The amended complaint must bear the docket 22 || number assigned this case and must be labeled “Amended Complaint.” Failure to file an 23 || amended complaint in accordance with this order will result in a recommendation that this action 24 || be dismissed. 25 | Dated: July 30, 2021 □□ / dp ai 26 CAROLYNK. DELANEY 27 UNITED STATES MAGISTRATE JUDGE 28 12/rabb0689.14.docx