-POR Sherman v. Small et al, No. 3:2010cv00290 - Document 13 (S.D. Cal. 2010)
Court Description: ORDER Dismissing Claims re 12 Third Amended Complaint and Directing USMS to Effect Service. Claims against Defendants M E Bourland, Matthew Cate, DOES, D Edwards, M Granis, George Guirbino, J G Janda, J Jimenez, Jr, L S McEwen, A Miller, D Nunez, T im Ochoa, Palomera, Stuart J Ryan, Sabala, Larry E Scribner, Larry E Small, S Anderson and T Borem are dismissed for failing to state a claim upon which relief may be granted pursuant to 28 USC 1915(e)(2)(B). Clerk directed to enter final judgment, w ithout prejudice, as to dismissed Defendants. Clerk shall issue summons as to Pla's Third Amended Complaint for Defendants Delgado, Gonzales, and Aguilar and to provide copy of Court's 3/19/2010 Order Granting Leave to Proceed IFP for purpo se of serving each Dft. US Marshal directed to serve copy of Third Amended and summons upon each Defendant. Dfts are ordered to reply to Pla's Third Amended Complaint w/in time provided by FRCP 12(a). Signed by Judge Irma E. Gonzalez on 10/14/2010. (cc: Matthew Cate). (IFP Package prepared and mailed) (All non-registered users served via U.S. Mail Service)(jah). Modified on 10/18/2010 - Regenerated NEF to send to M. Cate (jah). (jrl).
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-POR Sherman v. Small et al Doc. 13 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 JOSEPH HOWARD SHERMAN, CDCR #H-41665, Civil No. Plaintiff, 13 14 vs. LARRY SMALL, et al. 17 Defendants. 18 ORDER: (1) DISMISSING CLAIMS AND DEFENDANTS FROM PLAINTIFF’S THIRD AMENDED COMPLAINT; AND 15 16 10cv0290 IEG (POR) (2) DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF THIRD AMENDED COMPLAINT PURSUANT TO FED.R.CIV.P. 4(c)(3) & 28 U.S.C. § 1915(d) 19 20 21 I. PROCEDURAL HISTORY 22 On February 4, 2010, Plaintiff, a state inmate currently incarcerated at Calipatria State 23 Prison located in Calipatria, California, and proceeding pro se, filed a civil rights Complaint 24 pursuant to 42 U.S.C. § 1983. The Court granted Plaintiff’s Motion to Proceed In Forma 25 Pauperis (“IFP”) and simultaneously dismissed his Complaint for failing to state a claim 26 pursuant to 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b). See March 19, 2010 Order at 8-9. Plaintiff 27 was granted leave to file an Amended Complaint in order to correct the deficiencies of pleading 28 identified in the Court’s Order. Id. at 9. Plaintiff filed an extension of time to file his Amended 1 10cv0290 IEG (POR) Dockets.Justia.com 1 Complaint which was granted by the Court. See May 12, 2010 Order at 3. On May 13, 2010, 2 Plaintiff filed his First Amended Complaint (“FAC”) [Doc. No. 6]. 3 However, once again, the Court found that Plaintiff failed to state a claim upon which 4 relief could be granted. See June 4, 2010 Order at 6-7. On July 12, 2010, Plaintiff filed his 5 Second Amended Complaint (“SAC”), along with a Motion to Appoint Counsel. The Court 6 again denied his Motion for Appointment of Counsel and dismissed his Second Amended 7 Complaint for failing to state a claim. See July 27, 2010 Order at 6-7. Although untimely, the 8 Court permitted Plaintiff to file a Third Amended Complaint (“TAC”) on September 16, 2010. 9 III. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 10 As the Court stated in its previous Orders, the Prison Litigation Reform Act’s (“PLRA”) 11 amendments to 28 U.S.C. § 1915 obligates the Court to review complaints filed by all persons 12 proceeding IFP and by those, like Plaintiff, who are “incarcerated or detained in any facility 13 [and] accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the 14 terms or conditions of parole, probation, pretrial release, or diversionary program,” “as soon as 15 practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). Under these 16 provisions, the Court must sua sponte dismiss any prisoner civil action and all other IFP 17 complaints, or any portions thereof, which are frivolous, malicious, fail to state a claim, or which 18 seek damages from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; 19 Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. 20 Hayes, 213 F.3d 443, 446 n.1 (9th Cir. 2000) (§ 1915A). 21 A. 42 U.S.C. § 1983 22 To state a claim under § 1983, Plaintiff must allege that: (1) the conduct he complains 23 of was committed by a person acting under color of state law; and (2) that conduct violated a 24 right secured by the Constitution and laws of the United States. Humphries v. County of Los 25 Angeles, 554 F.3d 1170, 1184 (9th Cir. 2009) (citing West v. Atkins, 487 U.S. 42, 48 (1988)). 26 B. Claims surviving screening 27 After reviewing Plaintiff’s Third Amended Complaint, the Court finds that Plaintiff’s 28 claims of retaliation against Aguilar, D.R. Gonzalez and E. Delgado survive the Court’s required 2 10cv0290 IEG (POR) 1 sua sponte screening process. Therefore, Plaintiff is entitled to U.S. Marshal service on his 2 behalf as to these Defendants. See Lopez, 203 F.3d at 1126-27; 28 U.S.C. § 1915(d) (“The 3 officers of the court shall issue and serve all process, and perform all duties in [IFP] cases.”); 4 FED.R.CIV.P. 4(c)(3) (“[T]he court may order that service be made by a United States marshal 5 or deputy marshal ... if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. 6 § 1915.”). Plaintiff is cautioned, however, that “the sua sponte screening and dismissal 7 procedure is cumulative of, and not a substitute for, any subsequent Rule 12(b)(6) motion that 8 [a defendant] may choose to bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 9 2007). All the remaining claims against the remaining Defendants are DISMISSED from this 10 11 action for the reasons set forth below. 12 C. Access to Courts 13 Plaintiff alleges that Defendants removed property from his cell that hampered his ability 14 to pursue his claims in Imperial County Superior Court. Prisoners do “have a constitutional 15 right to petition the government for redress of their grievances, which includes a reasonable right 16 of access to the courts.” O’Keefe v. Van Boening, 82 F.3d 322, 325 (9th Cir. 1996); accord 17 Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995). In Bounds, 430 U.S. at 817, the Supreme 18 Court held that “the fundamental constitutional right of access to the courts requires prison 19 authorities to assist inmates in the preparation and filing of meaningful legal papers by providing 20 prisoners with adequate law libraries or adequate assistance from persons who are trained in the 21 law.” Bounds v. Smith, 430 U.S. 817, 828 (1977). To establish a violation of the right to access 22 to the courts, however, a prisoner must allege facts sufficient to show that: (1) a nonfrivolous 23 legal attack on his conviction, sentence, or conditions of confinement has been frustrated or 24 impeded, and (2) he has suffered an actual injury as a result. Lewis v. Casey, 518 U.S. 343, 353- 25 55 (1996). An “actual injury” is defined as “actual prejudice with respect to contemplated or 26 existing litigation, such as the inability to meet a filing deadline or to present a claim.” Id. at 27 348; see also Jones v. Blanas, 393 F.3d 918, 936 (9th Cir. 2004). 28 /// 3 10cv0290 IEG (POR) 1 Here, Plaintiff has failed to alleged any actions with any particularity that have precluded 2 his pursuit of a non-frivolous direct or collateral attack upon either a criminal conviction or 3 sentence or the conditions of his current confinement. See Lewis, 518 U.S. at 355 (right to 4 access to the courts protects only an inmate’s need and ability to “attack [his] sentence[], directly 5 or collaterally, and ... to challenge the conditions of [his] confinement.”); see also Christopher 6 v. Harbury, 536 U.S. 403, 415 (2002) (the non-frivolous nature of the “underlying cause of 7 action, whether anticipated or lost, is an element that must be described in the complaint, just 8 as much as allegations must describe the official acts frustrating the litigation.”). Moreover, 9 Plaintiff has not alleged facts sufficient to show that he has been actually injured by any specific 10 defendant’s actions. Lewis, 518 U.S. at 351. 11 In short, Plaintiff has not alleged that “a complaint he prepared was dismissed,” or that 12 he was “so stymied” by any individual defendant’s actions that “he was unable to even file a 13 complaint,” direct appeal or petition for writ of habeas corpus that was not “frivolous.” Lewis, 14 518 U.S. at 351; Christopher, 536 U.S. at 416 (“like any other element of an access claim[,] ... 15 the predicate claim [must] be described well enough to apply the ‘nonfrivolous’ test and to show 16 that the ‘arguable’ nature of the underlying claim is more than hope.”). Therefore, Plaintiff’s 17 access to courts claims must be dismissed for failing to state a claim upon which section 1983 18 relief can be granted. 19 D. Rooker Feldman Doctrine 20 While not entirely clear, Plaintiff appears to seek this Court’s assistance in overturning 21 the decisions made by the California Court of Appeal. The Rooker-Feldman doctrine provides 22 that “‘a losing party in state court is barred from seeking what in substance would be appellate 23 review of the state judgment in a United States District Court, based on the losing party’s claim 24 that the state judgment itself violates the loser’s federal rights.’” Doe v. Mann, 415 F.3d 1038, 25 1041 (9th Cir. 2005) (quoting Johnson v. De Grandy, 512 U.S. 997, 1005-06 (1994)), cert. 26 denied, 119 S.Ct. 868 (1999); see District of Columbia Court of Appeals v. Feldman, 460 U.S. 27 462, 476 & 486 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923). 28 4 10cv0290 IEG (POR) 1 Review of state court decisions may only be conducted in the United States Supreme 2 Court. Feldman, 460 U.S. at 476 & 486; Rooker, 263 U.S. at 416; see 28 U.S.C. § 1257. The 3 Rooker-Feldman jurisdictional bar applies even if the complaint raises federal constitutional 4 issues. Feldman, 460 U.S. at 483 n.16 & 486; Henrichs v. Valley View Development, 474 F.3d 5 609, 613 (9th Cir. 2007). More specifically, the bar applies if the challenge to the state court 6 decision is brought as a § 1983 civil rights action alleging violations of due process and equal 7 protection. See Branson v. Nott, 62 F.3d 287, 291 (9th Cir. 1995); Worldwide Church of God 8 v. McNair, 805 F.2d 888, 893 n.4 (9th Cir. 1986). 9 A complaint challenges a state court decision if the constitutional claims presented to the 10 district court are “inextricably intertwined” with the state court’s decision in a judicial 11 proceeding. Feldman, 460 U.S. at 483 n.16. “[T]he federal claim is inextricably intertwined with 12 the state court judgment if the federal claim succeeds only to the extent that the state court 13 wrongly decided the issues before it.” 14 (1987)(Marshall, J., concurring); see also Worldwide Church of God, 805 F.2d at 891-92. Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 25 15 Because Plaintiff appears to seek this Court’s assistance in overturning an order issued 16 by the California Court of Appeal, his claims are inextricably intertwined with the state court 17 proceedings, and are barred by the Rooker-Feldman doctrine. 18 E. Fourteenth Amendment Due Process 19 Throughout his Third Amended Complaint, Plaintiff claims a number of the Defendants 20 violated his due process rights by filing false disciplinary reports and failing to follow 21 regulations in conducting the disciplinary hearings. 22 process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s 23 protection of liberty and property.” Board of Regents v. Roth, 408 U.S. 564, 569 (1972). State 24 statutes and prison regulations may grant prisoners liberty interests sufficient to invoke due 25 process protections. Meachum v. Fano, 427 U.S. 215, 223-27 (1976). However, the Supreme 26 Court has significantly limited the instances in which due process can be invoked. Pursuant to 27 Sandin v. Conner, 515 U.S. 472, 483 (1995), a prisoner can show a liberty interest under the 28 Due Process Clause of the Fourteenth Amendment only if he alleges a change in confinement 5 “The requirements of procedural due 10cv0290 IEG (POR) 1 that imposes an “atypical and significant hardship . . . in relation to the ordinary incidents of 2 prison life.” Id. at 484 (citations omitted); Neal v. Shimoda, 131 F.3d 818, 827-28 (9th Cir. 3 1997). 4 In this case, Plaintiff has failed to establish a liberty interest protected by the Constitution 5 because he has not alleged, as he must under Sandin, facts related to the conditions or 6 consequences of his placement in Ad-Seg which show “the type of atypical, significant 7 deprivation [that] might conceivably create a liberty interest.” Id. at 486. For example, in 8 Sandin, the Supreme Court considered three factors in determining whether the plaintiff 9 possessed a liberty interest in avoiding disciplinary segregation: (1) the disciplinary versus 10 discretionary nature of the segregation; (2) the restricted conditions of the prisoner’s 11 confinement and whether they amounted to a “major disruption in his environment” when 12 compared to those shared by prisoners in the general population; and (3) the possibility of 13 whether the prisoner’s sentence was lengthened by his restricted custody. Id. at 486-87. 14 Therefore, to establish a due process violation, Plaintiff must first show the deprivation 15 imposed an atypical and significant hardship on him in relation to the ordinary incidents of 16 prison life. Sandin, 515 U.S. at 483-84. Here, Plaintiff alleges no facts to show that any atypical 17 and significant hardships imposed upon him as a result of the Defendants’ actions. See Ky. 18 Dep’t of Corr. v. Thompson, 490 U.S. 454, 460-61 (1989). Plaintiff must allege “a dramatic 19 departure from the basic conditions” of his confinement that would give rise to a liberty interest 20 before he can claim a violation of due process. Sandin, 515 U.S. at 485; see also Keenan v. Hall, 21 83 F.3d 1083, 1088-89 (9th Cir. 1996), amended by 135 F.3d 1318 (9th Cir. 1998). Thus, the 22 Court finds that Plaintiff has failed to state a Fourteenth Amendment due process claim. 23 F. Grievance Procedures 24 Plaintiff also seeks to hold a number of Defendants liable for the manner in which his 25 administrative grievances were processed. However, the Ninth Circuit has held that prisoners 26 have no protected property interest in an inmate grievance procedure arising directly from the 27 Due Process Clause. See Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (finding that the 28 due process clause of the Fourteenth Amendment creates “no legitimate claim of entitlement to 6 10cv0290 IEG (POR) 1 a [prison] grievance procedure”); accord Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994) (1995); 2 Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993). Thus, Plaintiff’s Fourteenth Amendment due process claims relating to his administrative 3 4 grievances is also dismissed for failing to state a claim upon which relief may be granted. 5 G. Respondeat Superior 6 To the extent that Plaintiff is seeking to hold a number of Defendants liable based solely 7 on their supervisory positions, he has failed to state a claim. There is no respondeat superior 8 liability under 42 U.S.C. § 1983. Palmer v. Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). 9 Instead, “[t]he inquiry into causation must be individualized and focus on the duties and 10 responsibilities of each individual defendant whose acts or omissions are alleged to have caused 11 a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo 12 v. Goode, 423 U.S. 362, 370-71 (1976)). In order to avoid the respondeat superior bar, Plaintiff 13 must allege personal acts by each individual Defendant which have a direct causal connection 14 to the constitutional violation at issue. See Sanders v. Kennedy, 794 F.2d 478, 483 (9th Cir. 15 1986); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 16 Supervisory prison officials may only be held liable for the allegedly unconstitutional 17 violations of a subordinate if Plaintiff sets forth allegations which show: (1) how or to what 18 extent they personally participated in or directed a subordinate’s actions, and (2) in either acting 19 or failing to act, they were an actual and proximate cause of the deprivation of Plaintiff’s 20 constitutional rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). As currently pleaded, 21 however, Plaintiff’s Third Amended Complaint fails to set forth facts which might be liberally 22 construed to support an individualized constitutional claim against any of the supervisory 23 Defendants. 24 III. CONCLUSION AND ORDER 25 Good cause appearing therefor, IT IS HEREBY ORDERED that: 26 1. The claims against Defendants Small, Ochoa, Miller, Jimenez, Anderson, 27 Edwards, Cate, McEwen, Giurbino, Ryan, Scribner, Bourland, Janda, Nunez, Borem, Granis, 28 Sabala, Palomera and Does 1-20 are DISMISSED for failing to state a claim upon which relief 7 10cv0290 IEG (POR) 1 may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). Because there are no 2 remaining claims against these Defendants, and there is no just reason for delay, the Clerk of 3 Court is directed to enter a final judgment, without prejudice, as to Defendants Small, Ochoa, 4 Miller, Jimenez, Anderson, Edwards, Cate, McEwen, Giurbino, Ryan, Scribner, Bourland, 5 Janda, Nunez, Borem, Granis, Sabala, Palomera and Does 1-20 pursuant to FED.R.CIV.P. 54(b). 6 IT IS FURTHER ORDERED that: 7 2. The Clerk shall issue a summons as to Plaintiff’s Third Amended Complaint [Doc. 8 No. 12] upon Defendants Delgado, Gonzalez and Aguilar and shall forward it to Plaintiff along 9 with a blank U.S. Marshal Form 285 for each of these Defendants. In addition, the Clerk shall 10 provide Plaintiff with a certified copy of this Order, the Court’s March 19, 2010 Order granting 11 Plaintiff leave to proceed IFP [Doc. No. 3], and certified copies of his Third Amended 12 Complaint and the summons for purposes of serving each Defendant. Upon receipt of this “IFP 13 Package,” Plaintiff is directed to complete the Form 285s as completely and accurately as 14 possible, and to return them to the United States Marshal according to the instructions provided 15 by the Clerk in the letter accompanying his IFP package. Thereafter, the U.S. Marshal shall 16 serve a copy of the Third Amended Complaint and summons upon each Defendant as directed 17 by Plaintiff on each Form 285. All costs of service shall be advanced by the United States. See 18 28 U.S.C. § 1915(d); FED.R.CIV.P. 4(c)(3). 3. 19 Defendants are thereafter ORDERED to reply to Plaintiff’s Third Amended 20 Complaint within the time provided by the applicable provisions of Federal Rule of Civil 21 Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while Defendants may occasionally be permitted 22 to “waive the right to reply to any action brought by a prisoner confined in any jail, prison, or 23 other correctional facility under section 1983,” once the Court has conducted its sua sponte 24 screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a preliminary 25 determination based on the face on the pleading alone that Plaintiff has a “reasonable 26 opportunity to prevail on the merits,” Defendants are required to respond). 27 /// 28 /// 8 10cv0290 IEG (POR) 1 4. Plaintiff shall serve upon Defendants or, if appearance has been entered by 2 counsel, upon Defendants’ counsel, a copy of every further pleading or other document 3 submitted for consideration of the Court. Plaintiff shall include with the original paper to be 4 filed with the Clerk of the Court a certificate stating the manner in which a true and correct copy 5 of any document was served on Defendants, or counsel for Defendants, and the date of service. 6 Any paper received by the Court which has not been filed with the Clerk or which fails to 7 include a Certificate of Service will be disregarded. 8 IT IS SO ORDERED. 9 10 11 10/14/10 DATED: _______________________ _________________________________________ HON. IRMA E. GONZALEZ, Chief Judge United States District Court 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 10cv0290 IEG (POR)
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