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11 MUHAMMAD KHAN, Case No. 24-cv-03905 BLF (PR)
12 ORDER OF DISMISSAL WITH Plaintiff, LEAVE TO AMEND; DIRECTING 13 PLAINTIFF TO FILE NON- v. PRISONER IN FORMA PAUPERIS 15 PRESLEY, et al.,
16 Defendants.
17 18 Plaintiff, a state parolee, filed the instant civil rights action pursuant to 42 U.S.C. § 19 1983 for unconstitutional acts that took place at the Correctional Training Facility 20 (“CTF”), where he was formerly housed. Dkt. No. 1. Plaintiff’s motion for leave to 21 proceed in forma pauperis is on the wrong form since he is no longer incarcerated. Dkt. 22 No. 2. Plaintiff shall be provided with a non-prisoner IFP application. 23
24 DISCUSSION 25 A. Standard of Review 26 A federal court must conduct a preliminary screening in any case in which a 27 prisoner seeks redress from a governmental entity or officer or employee of a 1 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 2 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 3 upon which relief may be granted or seek monetary relief from a defendant who is immune 4 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally 5 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 6 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 7 elements: (1) that a right secured by the Constitution or laws of the United States was 8 violated, and (2) that the alleged violation was committed by a person acting under the 9 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 10 B. Plaintiff’s Claims 11 Plaintiff alleges that on or about October 5, 2020, he was housed in “ZW” at CTF, 12 and released by Defendant Presley for medical appointment. Dkt. No. 1 at 2. Plaintiff 13 states that he told Defendant Presley that he needed some time to get ready because he was 14 mobility impaired. Id. After he returned from his appointment, Plaintiff saw that 15 Defendant Presley had trashed his cell, having strewn his property and legal paperwork all 16 over the cell, and did not provide a cell inspection receipt. Id. Plaintiff claims Defendant 17 Presley “took reprisals” against him for filing grievances and for taking his time to get 18 ready due to his disability. Id. at 3. Plaintiff claims this also amounts to “disability 19 discrimination” and First Amendment violation. Id. Plaintiff asked Defendant Presley 20 why he trashed his cell and asked to speak to a supervisor. Id. Plaintiff says that Capt. 21 Metcalf, Sgt. R. Glaze, and another unidentified officer witnessed the interaction. Id. 22 Defendant Presley then assaulted Plaintiff, causing personal injury and “iied.” Id. Plaintiff 23 asserts this amounted to “cruel and unusual punishment” under the Eighth Amendment. 24 Id. 25 Plaintiff was taken to a holding cell where a nurse examined him for injuries. Id. 26 Plaintiff states that he was not allowed to sit and was denied the use of a bathroom. Id. 1 and being an aggressor. Id. Lt. Reed and “Does” issued a lock up order and placed 2 Plaintiff in ad-seg. Id. Plaintiff asserts this was a “1st amendment reprisals/retaliation.” 3 Id. Plaintiff claims Defendant Andrade submitted documentation as reprisals to help cover 4 up Defendant Presley’s assault. Id. Plaintiff claims that during the subsequent ASU 5 retention hearing, he was denied witnesses, documentary evidence, and due process. Id. 6 He asserts that Defendant Bojorquez was not impartial, and that Defendant Botello, 7 Freeman, and Metcalf denied him documentary evidence and witnesses. Id. Plaintiff 8 seeks damages. Id. The allegations in the complaint are deficient to state any cognizable 9 claim. 10 First, the allegations are insufficient to state a retaliation claim against any 11 Defendant. “Within the prison context, a viable claim of First Amendment retaliation 12 entails five basic elements: (1) An assertion that a state actor took some adverse action 13 against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action 14 (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not 15 reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 16 567-68 (9th Cir. 2005) (footnote omitted). Plaintiff’s allegations are insufficient to satisfy 17 all five elements as he fails to provide sufficient facts to establish that any named 18 Defendant acted in retaliation for Plaintiff exercising his First Amendment rights. For 19 example, he merely speculates that it was Defendant Presley who “trashed” his cell and 20 provides no facts to support this conclusory allegation. Furthermore, he fails to explain 21 how he knows Defendant Presley acted because he was aware Plaintiff was filing 22 grievances, without which this accusation is also conclusory. In addition, nowhere does 23 Plaintiff allege that the “because of” factor for the alleged adverse actions by other 24 defendants was because he was exercising his First Amendment rights. Lastly, Plaintiff 25 fails to allege that these adverse actions chilled the exercise of his First Amendment rights 26 and did not reasonably advance a legitimate correctional goal. 1 against Defendant Presley. A prison official violates the Eighth Amendment when two 2 requirements are met: (1) the deprivation alleged must be, objectively, sufficiently serious, 3 Farmer v. Brennan, 511 U.S. 824, 834 (1994) (citing Wilson v. Seiter, 501 U.S. 294, 298 4 (1991)), and (2) the prison official possesses a sufficiently culpable state of mind, i.e., the 5 offending conduct was wanton, id. (citing Wilson, 501 U.S. at 297); LeMaire v. Maass, 12 6 F.3d 1444, 1451 (9th Cir. 1993). Whenever prison officials stand accused of using 7 excessive force in violation of the Eighth Amendment, the core judicial inquiry is whether 8 force was applied in a good-faith effort to maintain or restore discipline, or maliciously 9 and sadistically to cause harm. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). Plaintiff 10 states that Defendant Presley “attacked him,” but admits that an RVR was issued which 11 accused him of being the aggressor. He must provide more facts to establish that 12 Defendant Presley used force “maliciously and sadistically to cause harm,” rather than in a 13 good-faith effort to maintain or restore discipline. 14 Lastly, Plaintiff’s allegations of due process violations during his ASU retention 15 hearing fails to state a claim. In Toussaint v. McCarthy, the Ninth Circuit held that when 16 prison officials initially determine whether a prisoner is to be segregated for administrative 17 reasons due process requires that they comply with the following procedures: (1) they must 18 hold an informal nonadversary hearing within a reasonable time after the prisoner is 19 segregated,1 (2) the prisoner must be informed of the charges against him or the reasons 20 segregation is being considered, and (3) the prisoner must be allowed to present his views. 21 See Toussaint v. McCarthy, 801 F.2d 1080, 1100 (9th Cir.
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11 MUHAMMAD KHAN, Case No. 24-cv-03905 BLF (PR)
12 ORDER OF DISMISSAL WITH Plaintiff, LEAVE TO AMEND; DIRECTING 13 PLAINTIFF TO FILE NON- v. PRISONER IN FORMA PAUPERIS 15 PRESLEY, et al.,
16 Defendants.
17 18 Plaintiff, a state parolee, filed the instant civil rights action pursuant to 42 U.S.C. § 19 1983 for unconstitutional acts that took place at the Correctional Training Facility 20 (“CTF”), where he was formerly housed. Dkt. No. 1. Plaintiff’s motion for leave to 21 proceed in forma pauperis is on the wrong form since he is no longer incarcerated. Dkt. 22 No. 2. Plaintiff shall be provided with a non-prisoner IFP application. 23
24 DISCUSSION 25 A. Standard of Review 26 A federal court must conduct a preliminary screening in any case in which a 27 prisoner seeks redress from a governmental entity or officer or employee of a 1 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 2 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 3 upon which relief may be granted or seek monetary relief from a defendant who is immune 4 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally 5 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 6 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 7 elements: (1) that a right secured by the Constitution or laws of the United States was 8 violated, and (2) that the alleged violation was committed by a person acting under the 9 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 10 B. Plaintiff’s Claims 11 Plaintiff alleges that on or about October 5, 2020, he was housed in “ZW” at CTF, 12 and released by Defendant Presley for medical appointment. Dkt. No. 1 at 2. Plaintiff 13 states that he told Defendant Presley that he needed some time to get ready because he was 14 mobility impaired. Id. After he returned from his appointment, Plaintiff saw that 15 Defendant Presley had trashed his cell, having strewn his property and legal paperwork all 16 over the cell, and did not provide a cell inspection receipt. Id. Plaintiff claims Defendant 17 Presley “took reprisals” against him for filing grievances and for taking his time to get 18 ready due to his disability. Id. at 3. Plaintiff claims this also amounts to “disability 19 discrimination” and First Amendment violation. Id. Plaintiff asked Defendant Presley 20 why he trashed his cell and asked to speak to a supervisor. Id. Plaintiff says that Capt. 21 Metcalf, Sgt. R. Glaze, and another unidentified officer witnessed the interaction. Id. 22 Defendant Presley then assaulted Plaintiff, causing personal injury and “iied.” Id. Plaintiff 23 asserts this amounted to “cruel and unusual punishment” under the Eighth Amendment. 24 Id. 25 Plaintiff was taken to a holding cell where a nurse examined him for injuries. Id. 26 Plaintiff states that he was not allowed to sit and was denied the use of a bathroom. Id. 1 and being an aggressor. Id. Lt. Reed and “Does” issued a lock up order and placed 2 Plaintiff in ad-seg. Id. Plaintiff asserts this was a “1st amendment reprisals/retaliation.” 3 Id. Plaintiff claims Defendant Andrade submitted documentation as reprisals to help cover 4 up Defendant Presley’s assault. Id. Plaintiff claims that during the subsequent ASU 5 retention hearing, he was denied witnesses, documentary evidence, and due process. Id. 6 He asserts that Defendant Bojorquez was not impartial, and that Defendant Botello, 7 Freeman, and Metcalf denied him documentary evidence and witnesses. Id. Plaintiff 8 seeks damages. Id. The allegations in the complaint are deficient to state any cognizable 9 claim. 10 First, the allegations are insufficient to state a retaliation claim against any 11 Defendant. “Within the prison context, a viable claim of First Amendment retaliation 12 entails five basic elements: (1) An assertion that a state actor took some adverse action 13 against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action 14 (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not 15 reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 16 567-68 (9th Cir. 2005) (footnote omitted). Plaintiff’s allegations are insufficient to satisfy 17 all five elements as he fails to provide sufficient facts to establish that any named 18 Defendant acted in retaliation for Plaintiff exercising his First Amendment rights. For 19 example, he merely speculates that it was Defendant Presley who “trashed” his cell and 20 provides no facts to support this conclusory allegation. Furthermore, he fails to explain 21 how he knows Defendant Presley acted because he was aware Plaintiff was filing 22 grievances, without which this accusation is also conclusory. In addition, nowhere does 23 Plaintiff allege that the “because of” factor for the alleged adverse actions by other 24 defendants was because he was exercising his First Amendment rights. Lastly, Plaintiff 25 fails to allege that these adverse actions chilled the exercise of his First Amendment rights 26 and did not reasonably advance a legitimate correctional goal. 1 against Defendant Presley. A prison official violates the Eighth Amendment when two 2 requirements are met: (1) the deprivation alleged must be, objectively, sufficiently serious, 3 Farmer v. Brennan, 511 U.S. 824, 834 (1994) (citing Wilson v. Seiter, 501 U.S. 294, 298 4 (1991)), and (2) the prison official possesses a sufficiently culpable state of mind, i.e., the 5 offending conduct was wanton, id. (citing Wilson, 501 U.S. at 297); LeMaire v. Maass, 12 6 F.3d 1444, 1451 (9th Cir. 1993). Whenever prison officials stand accused of using 7 excessive force in violation of the Eighth Amendment, the core judicial inquiry is whether 8 force was applied in a good-faith effort to maintain or restore discipline, or maliciously 9 and sadistically to cause harm. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). Plaintiff 10 states that Defendant Presley “attacked him,” but admits that an RVR was issued which 11 accused him of being the aggressor. He must provide more facts to establish that 12 Defendant Presley used force “maliciously and sadistically to cause harm,” rather than in a 13 good-faith effort to maintain or restore discipline. 14 Lastly, Plaintiff’s allegations of due process violations during his ASU retention 15 hearing fails to state a claim. In Toussaint v. McCarthy, the Ninth Circuit held that when 16 prison officials initially determine whether a prisoner is to be segregated for administrative 17 reasons due process requires that they comply with the following procedures: (1) they must 18 hold an informal nonadversary hearing within a reasonable time after the prisoner is 19 segregated,1 (2) the prisoner must be informed of the charges against him or the reasons 20 segregation is being considered, and (3) the prisoner must be allowed to present his views. 21 See Toussaint v. McCarthy, 801 F.2d 1080, 1100 (9th Cir. 1986).2 Due process does not 22 require detailed written notice of charges, representation by counsel or counsel-substitute, 23 an opportunity to present witnesses, a written decision describing the reasons for placing 24 1 While a hearing held within 72 hours of segregation constitutes a "reasonable time," it is 25 unsettled whether due process would tolerate a more lengthy delay. See Toussaint, 801 F.2d at 1100 n.20. 26 2 The official charged with deciding to place an inmate in administrative segregation must 1 the prisoner in administrative segregation or disclosure of the identity of any person 2 providing information leading to placement of a prisoner in administrative segregation. 3 See id. at 1100-01. Accord Wilkinson v. Austin, 545 U.S. 209, 228-29 (2005) (determining 4 that prisoners are constitutionally entitled only to the informal, non-adversary procedures 5 set forth in Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1 6 (1979), and Hewitt v. Helms, 459 U.S. 460 (1983), prior to assignment to “supermax” 7 facility). Plaintiff was not entitled to present witnesses or documentary evidence under 8 Toussaint. Therefore, his allegations are insufficient to state a due process claim in 9 connection with the ASU retention hearing. 10 Plaintiff shall be granted leave to amend to attempt to correct the deficiencies in the 11 above claims. Plaintiff should keep the following principles in mind in preparing an 12 amended complaint. Liability may be imposed on an individual defendant under § 1983 13 only if Plaintiff can show that the defendant proximately caused the deprivation of a 14 federally protected right. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Harris v. 15 City of Roseburg, 664 F.2d 1121, 1125 (9th Cir. 1981). A person deprives another of a 16 constitutional right within the meaning of section 1983 if he does an affirmative act, 17 participates in another’s affirmative act or omits to perform an act which he is legally 18 required to do, that causes the deprivation of which the plaintiff complains. See Leer, 844 19 F.2d at 633. 20 22 For the reasons state above, the Court orders as follows: 23 1. The complaint is DISMISSED with leave to amend. Within twenty-eight 24 (28) days from the date this order is filed, Plaintiff shall file an amended complaint using 25 the court’s form complaint to correct the deficiencies described above. The amended 26 complaint must include the caption and civil case number used in this order, i.e., Case No. 1 || page. Plaintiff must answer all the questions on the form in order for the action to proceed. 2 || Plaintiff is reminded that the amended complaint supersedes the original complaint, and 3 || Plaintiff may not make references to the original. Claims not included in the amended 4 || complaint are no longer claims and defendants not named therein are no longer defendants. 5 || See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.1992). 6 2. Failure to respond in accordance with this order by filing an amended 7 || complaint in the time provided will result in the dismissal with prejudice of this g action for failure to state a claim for relief. 9 3. The Clerk shall enclose two copies of the court’s form complaint with a copy 10 || of this order. The Clerk shall also include a copy of the court’s “Application to Proceed In 11 || Forma Pauperis (Non-prisoner cases only)” with a copy of this order to Plaintiff. Plaintiff «(12 || must file the completed IFP form no later than twenty-eight (28) days from the date this E 13 || order is filed. Failure to file the IFP application in the time provided will result in the S 14 || dismissal of this action for failure to pay the filing fee. 3 15 IT ISSO ORDERED. 16 || Dated: _ December 2,2024 foinfhccnan _ BETH LABSON FREEMAN = "7 United States District Judge Z 18 19 20 21 22 23 24 25 || guint ua psig et 26 27