(PC) McClung v. CA Board of State and Community Corrections ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BRADLEY JAMES McCLUNG, No. 2:22-cv-01740 TLN DB P 12 Plaintiff, 13 v. ORDER 14 CALIFORNIA BOARD OF STATE AND COMMUNITY CORRECTIONS, et al., 15 Defendants. 16 17 Plaintiff, an inmate proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Plaintiff 18 claims that defendants violated plaintiff’s substantive and procedural due process rights. 19 Presently before the court is plaintiff’s complaint for screening (ECF No. 1) and plaintiff’s 20 motions for leave to proceed in forma pauperis (ECF Nos. 2, 9). 21 For the reasons set forth below, the complaint will be dismissed with plaintiff given the 22 opportunity to file an amended complaint. Plaintiff’s motion to proceed in forma pauperis (ECF 23 No. 9) will be granted and 24 //// 25 //// 26 //// 27 //// 28 //// 1 IN FORMA PAUPERIS 2 Plaintiff has submitted two motions to proceed in forma pauperis. (ECF Nos. 2, 9.) 3 Plaintiff’s second motion has been updated to reflect plaintiff’s current status and that makes the 4 showing required by 28 U.S.C. § 1915(a). (ECF No. 9.) Accordingly, plaintiff’s request to 5 proceed in forma pauperis (ECF No. 9) will be granted. Plaintiff’s initial request (ECF No. 2) 6 will be denied as moot. 7 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 8 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 9 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 10 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 11 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 12 of twenty percent of the preceding month’s income credited to plaintiff’s inmate trust account. 13 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 14 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 15 1915(b)(2). 16 SCREENING 17 I. Legal Standards 18 The court is required to screen complaints brought by prisoners seeking relief against a 19 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 20 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 21 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 22 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 23 U.S.C. § 1915A(b)(1) & (2). 24 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 25 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 26 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 27 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 28 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 1 pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227. Rule 8(a)(2) of 2 the Federal Rules of Civil Procedure “requires only ‘a short and plain statement of the claim 3 showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what 4 the . . . claim is and the grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 5 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 6 However, in order to survive dismissal for failure to state a claim a complaint must 7 contain more than “a formulaic recitation of the elements of a cause of action;” it must contain 8 factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 9 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the 10 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 11 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all 12 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 13 The Civil Rights Act under which this action was filed provides as follows: 14 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 15 of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, 16 or other proper proceeding for redress. 17 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the 18 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 19 Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A 20 person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of § 21 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform 22 an act which he is legally required to do that causes the deprivation of which complaint is made.” 23 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 24 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 25 their employees under a theory of respondeat superior and, therefore, when a named defendant 26 holds a supervisorial position, the causal link between him and the claimed constitutional 27 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 28 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations 1 concerning the involvement of official personnel in civil rights violations are not sufficient. See 2 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 3 II. Allegations in the Complaint 4 Plaintiff states that, at all relevant times, he was an inmate at the Placer County Jail. (ECF 5 No. 1 at 1.) Plaintiff names as defendants the California Board of State and Community 6 Corrections, South Placer Jail, and Placer County. 7 The factual allegations in plaintiff’s complaint largely take the form of a series of 8 grievances regarding jail conditions. These include the following allegations: inmates are 9 confined to a cell on lockdown nineteen and a half hours per day and certain amenities such as 10 phone access are not available during lockdown. (Id. at 4, 7.) Programming reduces lockdown 11 time but there is limited programming available. (Id.) Sometimes, inmates are on lockdown for 12 over twenty-four hours. (Id.) Inmates are on two schedules which alternate lockdown times. (Id. 13 at 12-15.) Inmates are woken up for medications at 3:45am, breakfast at 5:00am, and welfare 14 check at 7:00am. (Id. at 5, 8.) “The amounts, and types, of protein served was significantly 15 deficient” though this improved after complaints. (Id. at 6, 9.) “In violation of state legislature, 16 SPJ does not provide one hour of free remote video visitation per week.” (Id. at 10-11.) 17 Plaintiff seeks for there to be an investigation into “each of the issues raised in this 18 complaint” in addition to other broad requested relief. (Id. at 16.) 19 IV. Does Plaintiff State a Claim under § 1983? 20 The complaint is focused on two claims: a substantive due process claim and a procedural 21 due process claim. While plaintiff separates out each factual allegation into different “claims”, 22 plaintiff’s claims fall into these two broad categories. (See ECF No. 1 at 4-15.) 23 To state a substantive due process claim, plaintiff must allege “a state actor deprived [him] 24 of a constitutionally protected life, liberty, or property interest.” Shanks v. Dressel, 540 F.3d 25 1082, 1087 (9th Cir. 2008). In this regard, substantive due process, “forbids the government from 26 depriving a person of life, liberty, or property in such a way that ‘shocks the conscience’ or 27 ‘interferes with rights implicit in the concept of ordered liberty.’” Nunez v. City of Los Angeles, 28 147 F.3d 867, 871 (9th Cir. 1998) (quoting Rochin v. California, 342 U.S. 165, 172 (1952)). 1 “[W]here a particular [A]mendment provides an explicit textual source of constitutional 2 protection against a particular sort of government behavior, that Amendment, not the more 3 generalized notion of substantive due process, must be the guide for analyzing these claims.” 4 County of Sacramento v. Lewis, 523 U.S. 833, 842 (1998) (citations and internal quotation marks 5 omitted). 6 Here, plaintiff brings substantive due process claims but plaintiff’s complaints largely 7 concern the conditions of his confinement. Such claims should be brought under the Eighth 8 Amendment as the Supreme Court has specified that “if a constitutional claim is covered by a 9 specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be 10 analyzed under the standard appropriate to that specific provision, not under the rubric of 11 substantive due process.” United States v. Lanier, 520 U.S. 259, 272 n.7 (1997) (citing Graham 12 v. Connor, 490 U.S. 386, 394 (1989); Lewis, 523 U.S. at 842. For purposes of stating a 13 conditions of confinement claim, plaintiff has alleged insufficient facts as he has failed to 14 establish deliberate indifference by the defendants. See Farmer v. Brennan, 511 U.S. 825, 834 15 (1994). 16 To state a procedural due process claim, plaintiff must allege: (1) a deprivation of a 17 constitutionally protected liberty or property interest, and (2) a denial of adequate procedural 18 protections. Kildare v. Saenz, 325 F.3d 1078, 1085 (9th Cir. 2003). A prisoner has a liberty 19 interest protected by the Due Process Clause only where the restraint “imposes atypical and 20 significant hardship on the inmate in relation to the ordinary incidents of prison life.” Keenan v. 21 Hall, 83 F.3d 1083, 1088 (9th Cir. 1996) (quoting Sandin v. Connor, 515 U.S. 472, 484 (1995)). 22 Under the facts alleged, plaintiff has not established that he suffered restraints outside the normal 23 incidents of prison life. Confinement to a cell, limitations on recreational time, and other 24 restrictions are a reality of prison life. 25 However, it is possible that plaintiff may be able to state a claim given the opportunity to 26 file an amended complaint. Accordingly, plaintiff’s complaint will be dismissed with leave to 27 amend for failure to state a claim. 28 //// 1 AMENDING THE COMPLAINT 2 This court finds above that plaintiff has failed to allege sufficient facts to state a claim. 3 Plaintiff will be given leave to file an amended complaint. If plaintiff chooses to file an amended 4 complaint, he must address the problems with his complaint that are explained above. Any 5 amended complaint must be complete in itself. The court cannot refer to a prior complaint to 6 understand the plaintiff’s claims. 7 In an amended complaint, plaintiff must clearly identify each defendant and the action that 8 defendant took that violated plaintiff’s constitutional rights. The court is not required to review 9 exhibits to determine what plaintiff’s charging allegations are as to each named defendant. If 10 plaintiff wishes to add a claim, he must include it in the body of the complaint. The charging 11 allegations must be set forth in the amended complaint, so defendants have fair notice of the 12 claims plaintiff is presenting. That said, plaintiff need not provide every detailed fact in support 13 of his claims. Rather, plaintiff should provide a short, plain statement of each claim. See Fed. R. 14 Civ. P. 8(a). 15 Any amended complaint must show the federal court has jurisdiction, the action is brought 16 in the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It must 17 contain a request for particular relief. Plaintiff must identify as a defendant only persons who 18 personally participated in depriving plaintiff of a federal constitutional right. Johnson v. Duffy, 19 588 F.2d 740, 743 (9th Cir. 1978) (stating that a person subjects another to the deprivation of a 20 constitutional right if he does an act, participates in another’s act, or omits to perform an act he is 21 legally required to do that causes the alleged deprivation). “Vague and conclusory allegations of 22 official participation in civil rights violations are not sufficient.” Ivey v. Bd. of Regents, 673 F.2d 23 266, 268 (9th Cir. 1982) (citations omitted). 24 In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed. 25 R. Civ. P. 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed. 26 R. Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or 27 occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b). 28 //// 1 The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d 2 1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any 3 heightened pleading standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P. 4 84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be 5 set forth in short and plain terms. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) 6 (“Rule 8(a) is the starting point of a simplified pleading system, which was adopted to focus 7 litigation on the merits of a claim.”); Fed. R. Civ. P. 8. 8 An amended complaint must be complete in itself, without reference to any prior pleading. 9 E.D. Cal. R. 220. Once plaintiff files an amended complaint, the original pleading is superseded. 10 By signing an amended complaint, plaintiff certifies he has made reasonable inquiry and has 11 evidentiary support for his allegations, and for violation of this rule, the court may impose 12 sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11. 13 CONCLUSION 14 For the foregoing reasons, IT IS HEREBY ORDERED as follows: 15 1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 9) is granted. 16 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 17 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 18 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order 19 to the Director of the California Department of Corrections and Rehabilitation filed 20 concurrently herewith. 21 3. Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) is denied as moot. 22 4. Plaintiff’s complaint (ECF No. 1) is dismissed with leave to amend. 23 5. Plaintiff is granted thirty days from the date of service of this order to file an amended 24 complaint that complies with the requirements of the Civil Rights Act, the Federal 25 Rules of Civil Procedure, and the Local Rules of Practice; the amended complaint 26 must bear the docket number assigned this case and must be labeled “First Amended 27 Complaint;” failure to file an amended complaint in accordance with this order may 28 result in a recommendation that this action be dismissed. 1 6. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint 2 form used in this district. 3 | Dated: April 4, 2023 4 5 6 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 4 8 9 | pB:14 DB/DB Prisoner Inbox/Civil Rights/S/mecl1740.scrn_Ita 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28