Corry v. Ju ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JOHN CORRY, Case No. 19-cv-02622-WHO (PR) Plaintiff, 8 ORDER DISMISSING FIRST v. 9 AMENDED COMPLAINT WITH LEAVE TO AMEND 10 RON DAVIS, et al., Defendants. 11 12 13 INTRODUCTION 14 Plaintiff John Corry’s first amended complaint fails to state any claim for relief: the 15 claims against Ron Davis fail because Davis’s role as a grievance reviewer is not sufficient 16 to confer liability, and the claims against Chris Johnson do not state what constitutional 17 right was allegedly violated and any facts showing that a violation occurred. The first 18 amended complaint is DISMISSED with leave to file a second amended complaint on or 19 before July 20, 2020. If an amended complaint is not filed by that date in compliance with 20 this Order, the case will be dismissed. 21 STANDARD OF REVIEW 22 A federal court must conduct a preliminary screening in any case in which a 23 prisoner seeks redress from a governmental entity or officer or employee of a 24 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 25 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 26 upon which relief may be granted or seek monetary relief from a defendant who is immune 27 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must be liberally construed. 1 A “complaint must contain sufficient factual matter, accepted as true, to ‘state a 2 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 3 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial 4 plausibility when the plaintiff pleads factual content that allows the court to draw the 5 reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting 6 Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal 7 conclusions cast in the form of factual allegations if those conclusions cannot reasonably 8 be drawn from the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 9 (9th Cir. 1994). 10 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 11 elements: (1) that a right secured by the Constitution or laws of the United States was 12 violated, and (2) that the alleged violation was committed by a person acting under the 13 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 14 DISCUSSION 15 i. Original Complaint 16 In his original complaint, Corry alleged that in 2018 San Quentin prison guard J. Ju 17 accused him of stabbing another prisoner. (Compl., Dkt. No. 1 at 3.) Ju’s accusation led 18 to Corry facing state criminal and prison disciplinary charges of attempted murder. He 19 was acquitted of the state charge of murder, (id. at 4-5), but was found guilty of a weapon 20 possession charge. Corry was also found guilty of the prison disciplinary charges, which 21 resulted in an additional year added to his sentence and caused him to be placed in the 22 SHU for 34 months. (Id. at 5). Corry raised claims against (i) J. Ju for falsely accusing 23 him and for testifying falsely at the state criminal proceedings; (ii) R. Feston, who oversaw 24 his prison disciplinary proceedings, for finding him guilty of the prison charges; and (iii) 25 M. Voong, who denied Corry’s appeal of the prison disciplinary proceedings. 26 I previously dismissed Corry’s claims against J. Ju with prejudice because a 27 prisoner has no constitutionally guaranteed immunity from being falsely or wrongly 1 Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989). Furthermore, a witness is 2 absolutely immune from liability for his testimony in state or federal court proceedings 3 even if he committed perjury. See Briscoe v. LaHue, 460 U.S. 325, 329-46 (1983) (police 4 officer witness at trial); Holt v. Castaneda, 832 F.2d 123, 127 (9th Cir. 1987) (police 5 officer witness at probable cause hearing); Burns v. County of King, 883 F.2d 819 (9th Cir. 6 1989) (social worker preparing affidavit for use at bail revocation proceeding). 7 I also dismissed Corry’s claims against Voong with prejudice. Mere involvement in 8 reviewing an inmate’s administrative grievance does not necessarily demonstrate 9 awareness of an alleged violation, or contribute to the underlying violation. George v. 10 Smith, 507 F.3d 605, 609 (7th Cir. 2007). “Only persons who cause or participate in the 11 violations are responsible.” Id. “Ruling against a prisoner on an administrative complaint 12 does not cause or contribute to the violation.” Id. 13 Corry’s due process and Eighth Amendment allegations against Feston were 14 plausible. Retaining Corry in the SHU after his state court acquittal may have violated the 15 Eighth Amendment’s prohibition on cruel and unusual punishment. Defendant Feston was 16 served with the complaint. 17 Before Feston filed a response, Corry filed a motion to file an amended complaint. 18 (Dkt. No. 17.) Less than a week later, Feston filed a motion for summary judgment, which 19 I denied without prejudice because the briefing schedule was suspended after Corry asked 20 to file an amended complaint. (Dkt. Nos. 18 and 19.) 21 ii. First Amended Complaint 22 In the first amended complaint, Corry names only two defendants, apparently 23 dropping his claims against any prior-named defendant. He alleges that Ron Davis, the 24 warden of San Quentin, is responsible for the constitutional violations owing to his role as 25 a grievance reviewer, and that Chris Johnson, Corry’s counselor, is responsible for failing 26 in his “duty to do the paperwork to get plaintiff sent to general population instead of back 27 to the (SHU).” (First Am. Compl., Dkt. No. 18 at 3, 4.) Corry does not state what 1 Corry’s allegations against Ron Davis are DISMISSED without leave to amend 2 because Davis’s role as a grievance reviewer is insufficient to link him to any 3 constitutional violation. This point was made clear in a prior order. (Order of Service, 4 Dkt. No. 9 at 3.) Mere involvement in reviewing an inmate’s administrative grievance 5 does not necessarily demonstrate awareness of an alleged violation or contribute to the 6 underlying violation. George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007). “Only persons 7 who cause or participate in the violations are responsible.” Id. “Ruling against a prisoner 8 on an administrative complaint does not cause or contribute to the violation.” Id. 9 Corry’s claim against Johnson is DISMISSED with leave to amend because it fails 10 to state a claim for relief. First, Corry does not state what constitutional right was violated 11 by Johnson’s alleged inaction. In his amended complaint, Corry must not only name 12 which right was violated, but articulate specific facts showing that such a right was 13 violated. Second, Corry has not established that Johnson was under any obligation to 14 correct plaintiff’s housing assignment without a specific, written request from plaintiff, or 15 that he even had the authority to revise plaintiff’s housing assignment; it is not clear that 16 Johnson could on his own set aside a prison disciplinary finding without a rehearing or 17 voiding of the prison disciplinary charges. Third, Corry should state whether he exhausted 18 his claims against Johnson. 19 In composing his amended complaint, Corry should also consider the contentions 20 presented in Feston’s motion for summary judgment. The motion raises both factual and 21 legal matters that Corry will have to address when his suit reaches the dispositive motion 22 stage. For instance, Feston alleges Corry’s prison disciplinary charges were reheard (and 23 reduced to one of weapon possession) and that his consequent sentence was recalculated to 24 fit the prison and state criminal charges of which he was convicted. If that is true, it would 25 indicate that the litigation has no merit. 26 27 CONCLUSION 1 || amended complaint on or before July 20, 2020. Failure to comply to file by that date an 2 || amended complaint that comports with all the instructions in this order will result in the 3 dismissal of this action for failure to prosecute, see Federal Rule of Civil Procedure 41(b). 4 The new complaint must appear on this Court’s form, and include the caption and 5 || civil case number used in this order (19-02622 WHO (PR)) and the words SECOND 6 || AMENDED COMPLAINT on the first page. Because an amended complaint completely 7 || replaces the previous complaints, plaintiff must include in his first amended complaint all 8 || the claims he wishes to present and all of the defendants he wishes to sue. See Ferdik v. 9 || Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not incorporate material from the 10 || prior complaint by reference. 11 IT IS SO ORDERED. = 12 || Dated: June 2, 2020 . \f C0 □ 13 TU ADDI LLIAM H. ORRICK 14 United States District Judge 15 16 Z 18 19 20 21 22 23 24 25 26 27 28