Harris v. Gittere

• Court: District Court, D. Nevada
• Decided: August 26, 2022
• Docket: 3:22-cv-00053
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 BARRY HARRIS, Case No. 3:22-cv-00053-MMD-CLB

7 Plaintiff, SCREENING ORDER v. 8 WILLIAM GITTERE, et al., 9 Defendants. 10 11 I. SUMMARY 12 Pro se Plaintiff Barry Harris, who is incarcerated in the custody of the Nevada 13 Department of Corrections, has submitted a first amended civil rights complaint (“FAC”) 14 under 42 U.S.C. § 1983, and has filed an application to proceed in forma pauperis (“IFP 15 Application”). (ECF Nos. 1, 9.) The Court now grants the IFP Application and screens 16 Plaintiff’s FAC under 28 U.S.C. § 1915A. 17 II. IFP APPLICATION 18 Plaintiff’s IFP Application is granted. (ECF No. 1.) Based on the information 19 regarding Plaintiff’s financial status, the Court finds that Plaintiff is not able to pay an initial 20 installment payment toward the full filing fee under 28 U.S.C. § 1915. Plaintiff will, 21 however, be required to make monthly payments toward the full $350.00 filing fee when 22 he has funds available. 23 III. SCREENING STANDARD 24 Federal courts must conduct a preliminary screening in any case in which an 25 incarcerated person seeks redress from a governmental entity or officer or employee of 26 a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the Court must identify 27 any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a 28 claim upon which relief may be granted, or seek monetary relief from a defendant who is 2 be liberally construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 3 1990). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 4 elements: (1) the violation of a right secured by the Constitution or laws of the United 5 States; and (2) that the alleged violation was committed by a person acting under color 6 of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 7 In addition to the screening requirements under § 1915A, under the Prison 8 Litigation Reform Act (“PLRA”), a federal court must dismiss an incarcerated person’s 9 claim if “the allegation of poverty is untrue” or if the action “is frivolous or malicious, fails 10 to state a claim on which relief may be granted, or seeks monetary relief against a 11 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). Dismissal of a 12 complaint for failure to state a claim upon which relief can be granted is provided for in 13 Federal Rule of Civil Procedure 12(b)(6), and the Court applies the same standard under 14 § 1915 when reviewing the adequacy of a complaint or an amended complaint. When a 15 court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend 16 the complaint with directions as to curing its deficiencies, unless it is clear from the face 17 of the complaint that the deficiencies could not be cured by amendment. See Cato v. 18 United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 19 Review under Rule 12(b)(6) is essentially a ruling on a question of law. See 20 Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to 21 state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in 22 support of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 23 756, 759 (9th Cir. 1999). In making this determination, the Court takes as true all 24 allegations of material fact stated in the complaint, and the Court construes them in the 25 light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th 26 Cir. 1996). Allegations of a pro se complainant are held to less stringent standards than 27 formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980). While 28 the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff 2 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is 3 insufficient. See id. 4 Additionally, a reviewing court should “begin by identifying pleadings [allegations] 5 that, because they are no more than mere conclusions, are not entitled to the assumption 6 of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “While legal conclusions can provide 7 the framework of a complaint, they must be supported with factual allegations.” Id. “When 8 there are well-pleaded factual allegations, a court should assume their veracity and then 9 determine whether they plausibly give rise to an entitlement to relief.” Id. “Determining 10 whether a complaint states a plausible claim for relief . . . [is] a context-specific task that 11 requires the reviewing court to draw on its judicial experience and common sense.” Id. 12 Finally, all or part of a complaint filed by an incarcerated person may be dismissed 13 sua sponte if that person’s claims lack an arguable basis either in law or in fact. This 14 includes claims based on legal conclusions that are untenable (e.g., claims against 15 defendants who are immune from suit or claims of infringement of a legal interest which 16 clearly does not exist), as well as claims based on fanciful factual allegations (e.g., 17 fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989); 18 see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 19 IV. SCREENING OF FAC 20 In his FAC, Plaintiff sues multiple Defendants for events that took place while 21 Plaintiff was incarcerated at High Desert State Prison and Ely State Prison. (ECF No. 9 22 at 1-2.) Plaintiff sues Defendants Warden William Gittere, Deputy Director Assistant B. 23 Williams, and the State of Nevada.1 (Id. at 2-3.) Plaintiff brings one claim and seeks 24 monetary and injunctive relief. (Id. at 5, 7.) 25 Plaintiff alleges the following. On April 27, 2021, after prison officials found Plaintiff 26 guilty of a prison violation, he appealed. (Id. at 5.) At the disciplinary hearing, prison 27 1The Court dismisses with prejudice all claims against Defendant State of Nevada, 28 as amendment would be futile. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 2 prison, and referred Plaintiff to the Attorney General’s Office to face charges. (Id.) 3 According to Plaintiff, this has imposed a greater hardship on him in relation to the 4 ordinary incidents of prison life and the length of his sentence. (Id.) Although Gittere 5 acknowledged errors in the disciplinary hearing, Gittere violated Plaintiff’s rights by 6 refusing to give Plaintiff the remedy he sought. (Id. at 6.) Williams also repeated Gittere’s 7 errors. (Id.) Plaintiff wants his sanctions and outside charges dismissed. (Id. at 7.) Plaintiff 8 alleges violations of his Fourteenth Amendment due process rights. (Id. at 5.) 9 To the extent that Plaintiff is suing Gittere and Williams for due process violations 10 related to the denial of his appeal, Plaintiff fails to state a claim. As the Court explained 11 to Plaintiff in the original screening order (ECF No. 5 at 4-5), prisoners have no stand- 12 alone due process rights related to the administrative grievance process. See Mann v. 13 Adams, 855 F.2d 639, 640 (9th Cir. 1988) (holding that a state’s unpublished policy 14 statements establishing a grievance procedure do not create a constitutionally protected 15 liberty interest); Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding that there 16 is no liberty interest in the processing of appeals because there is no liberty interest 17 entitling inmates to a specific grievance process). Again, the Court dismisses this claim 18 with prejudice as amendment would be futile. (Id.) 19 The Court now addresses Plaintiff’s procedural due process claim and his 20 disciplinary hearing. To state a cause of action for deprivation of procedural due process, 21 a plaintiff must first establish the existence of a liberty interest for which the protection is 22 sought. See Sandin v. Conner, 515 U.S. 472, 487 (1995). In Sandin, the Supreme Court 23 held that a prisoner has a liberty interest when confinement “imposes [an] atypical and 24 significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at 25 484. In Sandin, the Supreme Court focused on three factors in determining that the 26 plaintiff possessed no liberty interest in avoiding disciplinary segregation: (1) disciplinary 27 2In the FAC, Plaintiff states that he was sanctioned to “365 months,” but then 28 attaches an exhibit that states “365 days.” (ECF No. 9 at 5, 15.) The Court interprets the 2 comparison between the plaintiff’s confinement and conditions in the general population 3 showed that the plaintiff suffered no “major disruption in his environment;” and (3) the 4 length of the plaintiff’s sentence was not affected. Id. at 486-87. 5 When a protected liberty interest exists and a prisoner faces disciplinary charges, 6 prison officials must provide the prisoner with (1) a written statement at least 24 hours 7 before the disciplinary hearing that includes the charges, a description of the evidence 8 against the prisoner, and an explanation for the disciplinary action taken; (2) an 9 opportunity to present documentary evidence and call witnesses, unless calling witnesses 10 would interfere with institutional security; and (3) legal assistance where the charges are 11 complex or the inmate is illiterate. See Wolff v. McDonnell, 418 U.S. 539, 563-70 (1974). 12 “When prison officials limit an inmate’s efforts to defend himself, they must have a 13 legitimate penological reason.” Koenig v. Vannelli, 971 F.2d 422, 423 (9th Cir. 1992). An 14 inmate’s right to present witnesses may legitimately be limited by “the penological need 15 to provide swift discipline in individual cases . . . [or] by the very real dangers in prison life 16 which may result from violence or intimidation directed at either other inmates or staff.” 17 Ponte v. Real, 471 U.S. 491, 495 (1985). Prison officials “must make the decision whether 18 to allow witnesses on a case-by-case basis, examining the potential hazards that may 19 result from calling a particular person.” Serrano v. Francis, 345 F.3d 1071, 1079 (9th Cir. 20 2003). Despite this, an inmate has no right to cross-examine or confront witnesses in 21 prison disciplinary hearings. See Wolff, 418 U.S. at 567-68. 22 “[T]he requirements of due process are satisfied if some evidence supports the 23 decision by the prison disciplinary board.” Superintendent, Mass. Corr. Inst., Walpole v. 24 Hill, 472 U.S. 445, 455 (1985). 25 The Court finds that Plaintiff fails to state a colorable due process claim based on 26 the disciplinary hearing. Even if Plaintiff establishes a liberty interest, he does not allege 27 that his disciplinary hearing failed to include any of the procedural requirements described 28 in Wolff. See 418 U.S. at 563-70. Even though Plaintiff states that Gittere and Williams 2 identify the errors. (ECF No. 9 at 6.) Thus, Plaintiff fails to state a colorable procedural 3 due process claim based on his disciplinary hearing. 4 The Court also finds that leave to amend is not warranted. In the original screening 5 order, the Court granted Plaintiff leave to amend on this claim. (ECF No. 5 at 5-6.) 6 However, upon amendment, Plaintiff still has not stated a colorable claim. See Zucco 7 Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (leave to amend not 8 required when plaintiff was previously allowed to amend but failed to correct identified 9 deficiencies). 10 Although Plaintiff did not describe the errors of his disciplinary hearing in the FAC, 11 he attaches several exhibits that purport to explain the errors. (ECF No. 9 at 6, 12-32.) 12 The Court has reviewed the exhibits and notes that the errors Plaintiff references are 13 unrelated to the procedural due process requirements described in Wolff. See 418 U.S. 14 at 563-70. Instead, the alleged errors appear to deal with delays in the disciplinary 15 hearing, typos in the disciplinary forms, and discontent with the hearing officer’s decision 16 not to review “all available evidence” after the evidence reviewed supported a guilty 17 finding. (Id. at 13.) Even if Plaintiff had raised these errors explicitly in his FAC, they would 18 not establish a claim for procedural due process violations. The Court dismisses the 19 Fourteenth Amendment due process claim with prejudice as amendment would be futile. 20 V. CONCLUSION 21 It is therefore ordered that Plaintiff's application to proceed in forma pauperis (ECF 22 No. 1) without having to prepay the full filing fee is granted. Plaintiff will not be required to 23 pay an initial installment fee. Nevertheless, the full filing fee will still be due, under 28 24 U.S.C. § 1915, as amended by the Prison Litigation Reform Act. The movant herein is 25 permitted to maintain this action to conclusion without the necessity of prepayment of fees 26 or costs or the giving of security therefor. 27 It is further ordered that, under 28 U.S.C. § 1915, as amended by the Prison 28 Litigation Reform Act, the Nevada Department of Corrections will forward payments from 1 || the account of Barry Harris, #95363 to the Clerk of Court, 20% of the preceding month's 2 || deposits (in months that the account exceeds $10.00) until the full $350 filing fee has 3 || been paid for this action. The Clerk of Court is directed to send a copy of this order to the 4 || Finance Division of the Clerk’s Office. The Clerk of Court is directed to send a copy of this 5 || order to the attention of Chief of Inmate Services for the Nevada Department of 6 || Corrections, P.O. Box 7011, Carson City, NV 89702. 7 It is further ordered that, even though this action is dismissed, or is otherwise 8 || unsuccessful, the full filing fee will still be due, under 28 U.S.C. §1915, as amended by 9 || the Prison Litigation Reform Act. 10 It is further ordered that the operative complaint is the FAC (ECF No. 9). The Clerk 11 || of Court is directed to send Plaintiff a courtesy copy of the FAC. 12 It is further ordered that the FAC (ECF No. 9) is dismissed with prejudice, as 13 || amendment would be futile, and for failure to state a claim. 14 The Clerk of Court is directed to close the case and enter judgment accordingly. 15 It is further ordered that the Court certifies that any in forma pauperis appeal from 16 || this order would not be taken “in good faith” under 28 U.S.C. § 1915(a)(3). 17 DATED THIS 26" Day of August 2022. 18

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