(PC) Huckabee v. Moseley ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICKY HUCKABEE, No. 2:21-cv-2223 KJN P 12 Plaintiff, 13 v. ORDER 14 HOWARD E. MOSELEY, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. 18 § 1983, and requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This 19 proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 20 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). 21 Accordingly, the request to proceed in forma pauperis is 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 this order, plaintiff is assessed an initial partial filing fee in 24 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 25 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 26 forward it to the Clerk of the Court. Thereafter, plaintiff is obligated to make monthly payments 27 of twenty percent of the preceding month’s income credited to plaintiff’s trust account. These 28 payments will be forwarded by the appropriate agency to the Clerk of the Court each time the 1 amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 2 § 1915(b)(2). 3 The court is required to screen complaints brought by prisoners seeking relief against a 4 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 5 court must dismiss a complaint or portion thereof if the prisoner raised claims that are legally 6 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 7 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 8 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 9 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 10 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 11 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 12 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 13 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 14 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 15 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 16 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 17 1227. 18 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 19 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 20 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 21 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 22 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 23 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 24 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555. 25 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the 26 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. 27 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal 28 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as 1 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the 2 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 3 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). 4 Plaintiff alleges that defendants, all employed at the appeals office at Folsom State Prison, 5 violated plaintiff’s due process rights by rejecting plaintiff’s administrative appeals. As a result, 6 plaintiff lost credits, delaying his release from prison. Plaintiff seeks release from prison as well 7 as money damages. 8 Processing of Administrative Appeals 9 Plaintiff complains that various appeals were denied or handled improperly. The denial of 10 an administrative appeal does not in and of itself rise to the level of a constitutional violation. See 11 Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (“There is no legitimate claim of entitlement 12 to a grievance procedure”); and Ramirez v. Galaza, 334 F.3d 850 (9th Cir. 2003) (same). 13 Plaintiff's claims that defendants wrongly denied his appeal fails to state a potentially colorable 14 due process claim. Id. at 860 (plaintiff has no claim for the “loss of a liberty interest in the 15 process of his appeals . . . because inmates lack a separate constitutional entitlement to a specific 16 prison grievance procedure.”) 17 Prison Disciplinary 18 Plaintiff marks the box “prison disciplinary,” but he does not provide any information 19 concerning the disciplinary, for example, what violations he was charged with, or how his rights 20 were violated, if they were, during the disciplinary hearing. It is unclear whether plaintiff 21 contends his due process rights were violated during the disciplinary hearing. 22 Plaintiff states the disciplinary resulted in a credit loss of 360. However, “a prisoner in 23 state custody cannot use a § 1983 action to challenge ‘the fact or duration of his confinement.’ He 24 must seek federal habeas corpus relief (or appropriate state relief) instead.” Wilkinson v. Dotson, 25 544 U.S. 74, 78 (2005). Similarly, plaintiff can only seek release from custody through a petition 26 for writ of habeas corpus. Such relief is unavailable in a civil rights action. Thus, plaintiff’s 27 challenges to the results of the disciplinary action (as opposed to the process) are not cognizable 28 in this § 1983 action. 1 Leave to Amend 2 It is unclear whether plaintiff can amend to state potentially cognizable civil rights claims. 3 But in an abundance of caution, plaintiff is granted leave to file an amended complaint. 4 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 5 about which he complains resulted in a deprivation of plaintiff’s constitutional rights. See, e.g., 6 West v. Atkins, 487 U.S. 42, 48 (1988). Also, the complaint must allege in specific terms how 7 each named defendant is involved. Rizzo v. Goode, 423 U.S. 362, 371 (1976). There can be no 8 liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a 9 defendant’s actions and the claimed deprivation. Rizzo, 423 U.S. at 371; May v. Enomoto, 633 10 F.2d 164, 167 (9th Cir. 1980). Furthermore, vague and conclusory allegations of official 11 participation in civil rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266, 12 268 (9th Cir. 1982). 13 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 14 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 15 complaint be complete in itself without reference to any prior pleading. This requirement exists 16 because, as a general rule, an amended complaint supersedes the original complaint. See Ramirez 17 v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint 18 supersedes the original, the latter being treated thereafter as non-existent.’” (internal citation 19 omitted)). Once plaintiff files an amended complaint, the original pleading no longer serves any 20 function in the case. Therefore, in an amended complaint, as in an original complaint, each claim 21 and the involvement of each defendant must be sufficiently alleged. 22 In accordance with the above, IT IS HEREBY ORDERED that: 23 1. Plaintiff’s request for leave to proceed in forma pauperis 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 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 27 Director of the California Department of Corrections and Rehabilitation filed concurrently 28 herewith. 1 3. Plaintiff's complaint is dismissed. 2 4. Within thirty days from the date of this order, plaintiff shall complete the attached 3 || Notice of Amendment and submit the following documents to the court: 4 a. The completed Notice of Amendment; and 5 b. An original of the Amended Complaint. 6 || Plaintiff's amended complaint shall comply with the requirements of the Civil Rights Act, the 7 || Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must 8 | also bear the docket number assigned to this case and must be labeled “Amended Complaint.” 9 Failure to file an amended complaint in accordance with this order may result in the 10 || dismissal of this action. 11 | Dated: December 28, 2021 Aectl Aharon vcka20s. 14 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 RICKY HUCKABEE, No. 2:21-cv-2223 KJN P 11 Plaintiff, 12 v. NOTICE OF AMENDMENT 13 HOWARD E. MOSELEY, et al., 14 Defendant. 15 16 Plaintiff hereby submits the following document in compliance with the court's order 17 filed______________. 18 _____________ Amended Complaint 19 DATED: 20 ________________________________ 21 Plaintiff 22 23 24 25 26 27 28