1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 TORIANO G. HUDSON, 7 Case No. 23-cv-04636 EJD (PR) Plaintiff, 8 ORDER OF DISMISSAL WITH v. LEAVE TO AMEND; DENYING 9 MOTION FOR SUMMARY JUDGMENT AS PREMATURE 10 L. DOSSMAN, et al.,
11 Defendants.
12 (Docket No. 8)
13 14 Plaintiff, a state prisoner, filed the instant pro se civil rights action pursuant to 42 15 U.S.C. § 1983 against prison staff at San Quentin State Prison (“SQSP”), where he is 16 currently housed. Dkt. No. 5. Plaintiff filed a motion for summary judgment. Dkt. No. 8. 17 Plaintiff’s motion for leave to proceed in forma pauperis will be addressed in a separate 18 order. Dkt. No. 6. 19 DISCUSSION 20 A. Standard of Review 21 A federal court must conduct a preliminary screening in any case in which a 22 prisoner seeks redress from a governmental entity or officer or employee of a 23 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 24 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 25 upon which relief may be granted or seek monetary relief from a defendant who is immune 26 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally 27 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 1 elements: (1) that a right secured by the Constitution or laws of the United States was 2 violated, and (2) that the alleged violation was committed by a person acting under the 3 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 4 B. Plaintiff’s Claims 5 Plaintiff claims that this action involves an “old complaint originally under 21-cv- 6 03205-EJD.” Dkt. No. 5 at 2. Plaintiff claims that Sgt. Perez, formally Sgt. Dossman, has 7 “continued to harass, annoy and violate[] [his] constitutional rights with reprisal and 8 retaliation” and an “on[]going continued campaign of harassment.” Id. at 2. Plaintiff 9 claims Defendant issues lifers, like himself, unnecessary disciplinary chronos (“RVRs”) 10 which stay in his file for life and cause “disruption and denials every time you go to the 11 parole board for release usually resulting in a 3-5 year denial for parole for simple 12 counseling.” Id. at 3. Plaintiff seeks damages and injunctive relief. Id. 13 Plaintiff’s allegation that Defendant has harassed and annoyed him are not 14 sufficient to state a claim under § 1983. Allegations of verbal harassment and abuse fail to 15 state a claim cognizable under 42 U.S.C. § 1983. See Freeman v. Arpaio, 125 F.3d 732, 16 738 (9th Cir. 1997) overruled in part on other grounds by Shakur v. Schriro, 514 F.3d 878, 17 884-85 (9th Cir. 2008); see, e.g., Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996), 18 amended 135 F.3d 1318 (9th Cir. 1998) (disrespectful and assaultive comments by prison 19 guard not enough to implicate 8th Amendment). But harassment coupled with conduct 20 implicating the Eighth Amendment’s proscription against cruel and unusual punishment 21 may indeed present a claim cognizable under § 1983. See Hudson v. Palmer, 468 U.S. 22 517, 528-30 (1984) (malicious cell searches and calculated harassment unrelated to prison 23 needs may implicate 8th Amendment’s protection against cruel and unusual punishment); 24 Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981) (harassment with regards to 25 medical problems cognizable if it constitutes deliberate indifference). Here, there are no 26 allegations indicating that Defendant’s alleged harassment was accompanied by conduct 27 implicating the Eighth Amendment. 1 Rather, Plaintiff implies that the issuance of disciplinary chronos were for 2 retaliatory purposes and otherwise unjustified. However, Plaintiff fails to identify any 3 specific RVR and explain how it was retaliatory rather than justified. Furthermore, 4 Plaintiff cannot state a claim if the deprivations involved were not of “real substance” and 5 the proceedings comported with due process. See Sandin v. Conner, 515 U.S. 472, 484 6 (1995); Wolff v. McDonnell, 418 U.S. 539, 564 (1974). Lastly, the fact that a prisoner 7 may have been innocent of the charges does not raise a due process issue. The 8 Constitution demands due process, not error-free decision-making. See Ricker v. Leapley, 9 25 F.3d 1406, 1410 (8th Cir. 1994); McCrae v. Hankins, 720 F.2d 863, 868 (5th Cir. 10 1983). 11 With regard to retaliation, Plaintiff’s allegations are insufficient to support such a 12 claim. “Within the prison context, a viable claim of First Amendment retaliation entails 13 five basic elements: (1) An assertion that a state actor took some adverse action against an 14 inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled 15 the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably 16 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th 17 Cir. 2005) (footnote omitted). Plaintiff’s allegations do not satisfy all five of these 18 elements. Specifically, Plaintiff does not allege that Defendant Perez took the adverse 19 action, i.e., issuance of RVRs, because of Plaintiff’s protected conduct and that 20 Defendant’s actions chilled the exercise of his First Amendment rights and did not 21 reasonably advance a legitimate correctional goal. 22 Plaintiff shall be granted leave to attempt to state sufficient facts to state a 23 cognizable claim against Defendant Perez. In preparing an amended complaint, Plaintiff 24 should keep the following legal principles in mind. Liability may be imposed on an 25 individual defendant under § 1983 only if Plaintiff can show that the defendant 26 proximately caused the deprivation of a federally protected right. See Leer v. Murphy, 844 27 F.2d 628, 634 (9th Cir. 1988); Harris v. City of Roseburg, 664 F.2d 1121, 1125 (9th Cir. 1 he does an affirmative act, participates in another’s affirmative act or omits to perform an 2 act which he is legally required to do, that causes the deprivation of which the plaintiff 3 complains. See Leer, 844 F.2d at 633. 4 In light of the lack of any cognizable claim in the complaint, Plaintiff’s motion for 5 summary judgment is DENIED as premature. Dkt. No. 8. 6 CONCLUSION 7 For the foregoing reasons, the Court orders as follows: 8 1. The complaint is DISMISSED with leave to amend.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 TORIANO G. HUDSON, 7 Case No. 23-cv-04636 EJD (PR) Plaintiff, 8 ORDER OF DISMISSAL WITH v. LEAVE TO AMEND; DENYING 9 MOTION FOR SUMMARY JUDGMENT AS PREMATURE 10 L. DOSSMAN, et al.,
11 Defendants.
12 (Docket No. 8)
13 14 Plaintiff, a state prisoner, filed the instant pro se civil rights action pursuant to 42 15 U.S.C. § 1983 against prison staff at San Quentin State Prison (“SQSP”), where he is 16 currently housed. Dkt. No. 5. Plaintiff filed a motion for summary judgment. Dkt. No. 8. 17 Plaintiff’s motion for leave to proceed in forma pauperis will be addressed in a separate 18 order. Dkt. No. 6. 19 DISCUSSION 20 A. Standard of Review 21 A federal court must conduct a preliminary screening in any case in which a 22 prisoner seeks redress from a governmental entity or officer or employee of a 23 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 24 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 25 upon which relief may be granted or seek monetary relief from a defendant who is immune 26 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally 27 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 1 elements: (1) that a right secured by the Constitution or laws of the United States was 2 violated, and (2) that the alleged violation was committed by a person acting under the 3 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 4 B. Plaintiff’s Claims 5 Plaintiff claims that this action involves an “old complaint originally under 21-cv- 6 03205-EJD.” Dkt. No. 5 at 2. Plaintiff claims that Sgt. Perez, formally Sgt. Dossman, has 7 “continued to harass, annoy and violate[] [his] constitutional rights with reprisal and 8 retaliation” and an “on[]going continued campaign of harassment.” Id. at 2. Plaintiff 9 claims Defendant issues lifers, like himself, unnecessary disciplinary chronos (“RVRs”) 10 which stay in his file for life and cause “disruption and denials every time you go to the 11 parole board for release usually resulting in a 3-5 year denial for parole for simple 12 counseling.” Id. at 3. Plaintiff seeks damages and injunctive relief. Id. 13 Plaintiff’s allegation that Defendant has harassed and annoyed him are not 14 sufficient to state a claim under § 1983. Allegations of verbal harassment and abuse fail to 15 state a claim cognizable under 42 U.S.C. § 1983. See Freeman v. Arpaio, 125 F.3d 732, 16 738 (9th Cir. 1997) overruled in part on other grounds by Shakur v. Schriro, 514 F.3d 878, 17 884-85 (9th Cir. 2008); see, e.g., Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996), 18 amended 135 F.3d 1318 (9th Cir. 1998) (disrespectful and assaultive comments by prison 19 guard not enough to implicate 8th Amendment). But harassment coupled with conduct 20 implicating the Eighth Amendment’s proscription against cruel and unusual punishment 21 may indeed present a claim cognizable under § 1983. See Hudson v. Palmer, 468 U.S. 22 517, 528-30 (1984) (malicious cell searches and calculated harassment unrelated to prison 23 needs may implicate 8th Amendment’s protection against cruel and unusual punishment); 24 Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981) (harassment with regards to 25 medical problems cognizable if it constitutes deliberate indifference). Here, there are no 26 allegations indicating that Defendant’s alleged harassment was accompanied by conduct 27 implicating the Eighth Amendment. 1 Rather, Plaintiff implies that the issuance of disciplinary chronos were for 2 retaliatory purposes and otherwise unjustified. However, Plaintiff fails to identify any 3 specific RVR and explain how it was retaliatory rather than justified. Furthermore, 4 Plaintiff cannot state a claim if the deprivations involved were not of “real substance” and 5 the proceedings comported with due process. See Sandin v. Conner, 515 U.S. 472, 484 6 (1995); Wolff v. McDonnell, 418 U.S. 539, 564 (1974). Lastly, the fact that a prisoner 7 may have been innocent of the charges does not raise a due process issue. The 8 Constitution demands due process, not error-free decision-making. See Ricker v. Leapley, 9 25 F.3d 1406, 1410 (8th Cir. 1994); McCrae v. Hankins, 720 F.2d 863, 868 (5th Cir. 10 1983). 11 With regard to retaliation, Plaintiff’s allegations are insufficient to support such a 12 claim. “Within the prison context, a viable claim of First Amendment retaliation entails 13 five basic elements: (1) An assertion that a state actor took some adverse action against an 14 inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled 15 the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably 16 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th 17 Cir. 2005) (footnote omitted). Plaintiff’s allegations do not satisfy all five of these 18 elements. Specifically, Plaintiff does not allege that Defendant Perez took the adverse 19 action, i.e., issuance of RVRs, because of Plaintiff’s protected conduct and that 20 Defendant’s actions chilled the exercise of his First Amendment rights and did not 21 reasonably advance a legitimate correctional goal. 22 Plaintiff shall be granted leave to attempt to state sufficient facts to state a 23 cognizable claim against Defendant Perez. In preparing an amended complaint, Plaintiff 24 should keep the following legal principles in mind. Liability may be imposed on an 25 individual defendant under § 1983 only if Plaintiff can show that the defendant 26 proximately caused the deprivation of a federally protected right. See Leer v. Murphy, 844 27 F.2d 628, 634 (9th Cir. 1988); Harris v. City of Roseburg, 664 F.2d 1121, 1125 (9th Cir. 1 he does an affirmative act, participates in another’s affirmative act or omits to perform an 2 act which he is legally required to do, that causes the deprivation of which the plaintiff 3 complains. See Leer, 844 F.2d at 633. 4 In light of the lack of any cognizable claim in the complaint, Plaintiff’s motion for 5 summary judgment is DENIED as premature. Dkt. No. 8. 6 CONCLUSION 7 For the foregoing reasons, the Court orders as follows: 8 1. The complaint is DISMISSED with leave to amend. Within twenty-eight 9 (28) days of the date this order is filed, Plaintiff shall file an amended complaint to correct 10 the deficiencies described above. The amended complaint must include the caption and 11 civil case number used in this order, Case No. 23-cv-04636 EJD (PR), and the words 12 “AMENDED COMPLAINT” on the first page. If using the court form complaint, Plaintiff 13 must answer all the questions on the form in order for the action to proceed. The amended 14 complaint supersedes the original, the latter being treated thereafter as non-existent. 15 Ramirez v. Cty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015). Consequently, 16 claims not included in an amended complaint are no longer claims and defendants not 17 named in an amended complaint are no longer defendants. See Ferdik v. Bonzelet, 963 18 F.2d 1258, 1262 (9th Cir.1992). 19 2. Failure to respond in accordance with this order in the time provided 20 will result in the dismissal with prejudice of this action for failure to state a claim, 21 without further notice to Plaintiff. 22 3. In light of this dismissal with leave to amend, Plaintiff’s motion for summary 23 judgment is DENIED as premature. Dkt. No. 8. 24 4. The Clerk shall include two copies of the court’s complaint with a copy of 25 this order to Plaintiff. 26 5. The Clerk shall terminate “L. Dossman” from the docket as this name refers 27 to the former name of Defendant L. Perez, who is already separately listed. 1 This order terminates Docket No. 8. 2 IT IS SO ORDERED. 3 Dated: January 24, 2024 4 EDWARD J. DAVILA United States District Judge 5 6 7 8 9 10 11 a 12
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