1 2
4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8
9 10 LANCE WILLIAMS, Case No. CV 20-4490-PA (KK) 11 Plaintiff, 12 v. ORDER DISMISSING FIRST AMENDED COMPLAINT WITH 13 R. FARLEY, ET AL., LEAVE TO AMEND
14 Defendant(s).
15 16 17 I. 18 INTRODUCTION 19 Plaintiff Lance Williams (“Plaintiff”), proceeding pro se and in forma pauperis, 20 filed a First Amended Complaint (“FAC”) pursuant to 42 U.S.C. § 1983 (“Section 21 1983”) against correctional officers R. Farley, D. Arebalo, M. Williams, J. Graves, and 22 D. Davis (“Defendants”) alleging violations of his First, Eighth, and Fourteenth 23 Amendment rights. For the reasons discussed below, the Court dismisses the FAC 24 with leave to amend. 25 /// 26 /// 27 /// 1 II. 2 BACKGROUND 3 On May 19, 2020, Plaintiff, an inmate at California Men’s Colony – East 4 (“CMC”) constructively filed1 the instant Complaint against Defendants, who are all 5 correctional officers at CMC, in their individual and official capacities. ECF Docket 6 No. (“Dkt.”) 1. Plaintiff alleges (1) a First Amendment retaliation claim against all 7 Defendants; (2) an Eighth Amendment excessive force claim against defendant Farley; 8 (3) an Eighth Amendment “threat to safety” claim against defendants Farley, Arebalo, 9 and Graves; and (4) a Fourteenth Amendment due process claim against defendants 10 Williams, Graves, and Davis. Id. at 3-4. 11 On August 10, 2020, the Court dismissed the Complaint with leave to amend 12 finding (1) the Eleventh Amendment bars claims for monetary damages against 13 Defendants in their official capacity; (2) Plaintiff failed to state certain First 14 Amendment retaliation claims against defendants Farley and Davis; (3) Plaintiff failed 15 to state Eighth Amendment “threat to safety” claims against defendants Farley, 16 Arebalo, and Graves; (4) Plaintiff failed to state a Fourteenth Amendment due 17 process claim against defendants Williams, Graves, and Davis. Dkt. 8. 18 On September 8, 2020, Plaintiff filed the instant FAC against defendants Farley 19 and Graves in their individual capacity and defendants Arebalo, Williams, and Davis 20 in their individual and official capacities for violation of Plaintiff’s First, Eighth, and 21 Fourteenth Amendment rights. Dkt. 13. 22 The FAC sets forth the following allegations: 23 In Claim One, Plaintiff alleges on April 2, 2020, Plaintiff signed up for a 1:15 24 p.m. time slot to use the phone to call his attorney. Id. at 5. Shortly thereafter, 25
26 1 Under the “mailbox rule,” when a pro se prisoner gives prison authorities a pleading to mail to court, the court deems the pleading constructively “filed” on the 27 date it is signed. Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010); see 1 Plaintiff “received a priority medical pass for 1:00 p.m.” Id. Later that day, Plaintiff 2 discovered defendant Farley had “scratched” Plaintiff’s name off the phone list. Id. 3 Plaintiff questioned defendant Farley as to why his name was scratched off the list 4 and defendant Farley responded, “consider it payback for the many 602 appeal 5 grievances you filed on me” and then stated Plaintiff’s medical pass conflicted with 6 the phone time. Id. Plaintiff questioned defendant Farley about “the policy that says 7 officers are supposed to scratch names off” and defendant Farley “could not provide 8 the policy.” Id. Plaintiff then informed defendant Farley he “would be filing a 602 9 appeal grievance to address this policy and [defendant Farley’s] actions.” Id. Plaintiff 10 appears to allege he “couldn’t contact his attorney” as a result of defendant Farley’s 11 actions. Id. 12 In Claim Two, Plaintiff alleges on April 6, 2020, defendant Farley issued a 13 Rules Violation Report (“RVR”) against Plaintiff for “unlawful influence” which 14 noted “[Plaintiff’s] threats [were] valid due to [Plaintiff] having filed staff complaints 15 on me before.” Id. at 6. Plaintiff alleges defendant Farley issued the RVR “strictly in 16 retaliation for Plaintiff’s threat to file a 602 appeal grievance about [the] phone issue.” 17 Id. In addition, Plaintiff alleges the RVR violated his Fourteenth Amendment due 18 process rights because Plaintiff “does not have repeated offenses for this charge” and 19 defendant Farley’s “dishonest” allegations in the RVR are a “clear abuse of 20 discretion.” Id. 21 On April 14, 2020, Plaintiff alleges he appeared at a hearing conducted by 22 defendant Arebalo as the Senior Hearing Officer regarding the RVR. Id. at 8. 23 Plaintiff alleges defendant Arebalo found him guilty of the RVR, but claims the 24 “preponderance of evidence standard was not met” because the RVR is unreliable 25 hearsay and defendant Farley’s testimony was also unreliable. Id. at 7. Plaintiff 26 further alleges defendant Arebalo violated his Fourteenth Amendment due process 27 rights because defendant Arebalo was biased, asked non-impartial questions, and 1 would have testified Plaintiff was done with his medical appointment before 1:15 pm. 2 Id. at 9-10. 3 After the hearing suspended for the day, Plaintiff alleges defendant Farley 4 called Plaintiff into a dark office, told Plaintiff to close the door, and “jumped up and 5 attack[ed] [Plaintiff], grabbing his neck squeezing it and punching Plaintiff in [his] 6 stomach,” and stated “‘if you file any more appeals on me or even think about filing a 7 lawsuit[,] and I’ll know because I talk to law library staff[,] I’ll make sure you end up in 8 the hole, I’ll place a mysterious kite on you.” Id. at 10. Plaintiff alleges defendant 9 Farley’s “assault and threats” violated his First, Eighth, and Fourteenth Amendment 10 rights.2 Id. 11 On April 15, 2020, when the hearing resumed, defendant Arebalo found 12 Plaintiff guilty of the rule violation. Id. at 11. Plaintiff further alleges defendant 13 Arebalo informed Plaintiff of his right to appeal the decision, but stated “if I was you 14 I wouldn’t it may get you fucked over and hurt.” Id. Plaintiff alleges defendant 15 Arebalo’s threat showed he was deliberately indifferent to Plaintiff’s health and safety 16 in violation of Plaintiff’s Eight Amendment rights. Id. at 12. 17 In Claim Three, Plaintiff alleges on April 24, 2020 he was taken to 18 administrative segregation (“ad-seg”) because a note was found in the prison mail 19 system stating Plaintiff was “going to be stabbed due to him filing a lot of 602 appeal 20 grievances.” Id. at 13. Plaintiff alleges he “has personal knowledge this entire process 21 was orchestrated and conjured up by [defendant] Farley” and other officers. Id. 22 Plaintiff further alleges that on April 28, 2020, while he was in ad-seg, defendant 23 Farley came to his door and said, “I told you we would get you and if you think about 24 writing any 602 appeals or lawsuits again I can still have you cut up back here.” Id. 25 Plaintiff alleges defendant Farley then “pointed at him as if to shoot a gun” and 26 2 Plaintiff clarifies his Eighth Amendment claim against defendant Farley is not based 27 on the verbal threat about the “mysterious kite,” but rather that “the chronology of 1 walked away. Id. Plaintiff alleges this “chronology of events” shows defendant Farley 2 acted in retaliation in violation of Plaintiff’s First Amendment rights. Id. 3 In Claim Four, Plaintiff alleges that at his April 30, 2020 “annual” hearing, 4 defendant Williams, as “acting Captain”, rescinded Plaintiff’s “level 1 override 5 endorsement” that Plaintiff’s previous counsellor had approved. Id. at 14. Plaintiff 6 alleges before the hearing defendant Williams came to Plaintiff’s door in ad-seg and 7 said he would “rescind the level 1 override because Plaintiff filed too many 8 grievances” and because he filed a staff complaint grievance against defendant Farley. 9 Id. at 14. In addition, Plaintiff alleges defendant Williams violated his due process 10 rights when he “refused to address” Plaintiff’s upcoming mandatory parole review. 11 Id. Plaintiff further alleges defendant Williams violated Plaintiff’s due process rights 12 because (a) he refused to provide a staff assistant to help Plaintiff prepare for the 13 hearing, but falsely documented that defendant Graves provided assistance; (b) 14 Plaintiff did not meet with a staff assistant 24 hours before the hearing; and (c) 15 Plaintiff was not given 72 hours notice of the hearing. Id. at 15. Plaintiff alleges he 16 filed a Form 22 inmate request with defendant Graves requesting information “about 17 his involvement with [Plaintiff’s] hearing”, but defendant Graves responded to 18 Plaintiff by stating “don’t involve me in your 602 and lawsuit shit I’m in control of 19 your life back here . . . it’s nothing for you to end up hanging you see what happen[ed] 20 to Epstein”.3 Id. at 16. Plaintiff alleges this “comment (threat) placed Plaintiff in 21 imminent danger of serious physical injury.” Id. at 16. 22 Plaintiff further alleges defendant Davis “endorsed [Plaintiff] to a facility far 23 from his county” as part of a “campaign of harassment and retaliation”. Id. at 17. 24 When Plaintiff informed defendant Davis he had enemy and safety concerns at Deuel 25 Vocational Institution (“DVI”), where he was endorsed to be transferred, defendant 26 3 Plaintiff clarifies he “is not claiming Graves violated due process [but that] 27 defendant Williams did using Graves’ name, nor is the Plaintiff making an 8th 1 Davis said, “I’ve been told all about you you[’re] getting transferred to DVI a 2 nonprogramming facility since you like to file a lot of grievances.” Id. Plaintiff alleges 3 defendant Davis also violated Plaintiff’s due process rights by failing to investigate 4 Plaintiff’s safety concerns. Id. 5 While the FAC is not clear as to which claims Plaintiff is seeking to raise 6 against each defendant, it appears Plaintiff seeks to allege the following claims: (1) a 7 First Amendment retaliation claim against defendants Farley, Williams, Davis; (2) an 8 Eighth Amendment excessive force claim against defendant Farley; (3) an Eighth 9 Amendment “threat to safety” claim against defendants Farley, Arebalo, and Graves; 10 and (4) a Fourteenth Amendment due process claim against defendants Farley, 11 Arebalo, Williams, and Davis. 12 Plaintiff seeks punitive, compensatory, and nominal damages as well as 13 “injunctive relief against future infringement of [Plaintiff’s] 1st Amendment rights and 14 for expungement of unlawful influence RVR from [Plaintiff’s] C-file”, and deletion of 15 4 classification points, and an order that Plaintiff be “taken to classification and all 16 available credits [be] backdated as of [Plaintiff’s] April 30, 2020 classification.” Id. at 17 18.4 18 III. 19 STANDARD OF REVIEW 20 Where a plaintiff is proceeding in forma pauperis, a court must screen the 21 complaint under 28 U.S.C. § 1915 and is required to dismiss the case at any time if it 22 concludes the action is frivolous or malicious, fails to state a claim on which relief may 23 be granted, or seeks monetary relief against a defendant who is immune from such 24 relief. 28 U.S.C. § 1915(e)(2)(B); see Barren v. Harrington, 152 F.3d 1193, 1194 (9th 25 Cir. 1998). 26 27 1 Under Federal Rule of Civil Procedure 8 (“Rule 8”), a complaint must contain a 2 “short and plain statement of the claim showing that the pleader is entitled to relief.” 3 Fed. R. Civ. P. 8(a)(2). In determining whether a complaint fails to state a claim for 4 screening purposes, a court applies the same pleading standard as it would when 5 evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See 6 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). 7 A complaint may be dismissed for failure to state a claim “where there is no 8 cognizable legal theory or an absence of sufficient facts alleged to support a 9 cognizable legal theory.” Zamani v. Carnes, 491 F.3d 990, 996 (9th Cir. 2007). In 10 considering whether a complaint states a claim, a court must accept as true all of the 11 material factual allegations in it. Hamilton v. Brown, 630 F.3d 889, 892-93 (9th Cir. 12 2011). However, the court need not accept as true “allegations that are merely 13 conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re 14 Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). Although a complaint 15 need not include detailed factual allegations, it “must contain sufficient factual matter, 16 accepted as true, to state a claim to relief that is plausible on its face.” Cook v. 17 Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 18 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)). A claim is facially plausible when it 19 “allows the court to draw the reasonable inference that the defendant is liable for the 20 misconduct alleged.” Id. The complaint “must contain sufficient allegations of 21 underlying facts to give fair notice and to enable the opposing party to defend itself 22 effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). 23 “A document filed pro se is ‘to be liberally construed,’ and a ‘pro se complaint, 24 however inartfully pleaded, must be held to less stringent standards than formal 25 pleadings drafted by lawyers.’” Woods v. Carey, 525 F.3d 886, 889-90 (9th Cir. 2008). 26 However, liberal construction should only be afforded to “a plaintiff’s factual 27 allegations,” Neitzke v. Williams, 490 U.S. 319, 330 n.9, 109 S. Ct. 1827, 104 L. Ed. 2d 1 the truth of legal conclusions cast in the form of factual allegations,” Ileto v. Glock 2 Inc., 349 F.3d 1191, 1200 (9th Cir. 2003). 3 If a court finds the complaint should be dismissed for failure to state a claim, 4 the court has discretion to dismiss with or without leave to amend. Lopez v. Smith, 5 203 F.3d 1122, 1126-30 (9th Cir. 2000). Leave to amend should be granted if it 6 appears possible the defects in the complaint could be corrected, especially if the 7 plaintiff is pro se. Id. at 1130-31; see also Cato v. United States, 70 F.3d 1103, 1106 8 (9th Cir. 1995). However, if, after careful consideration, it is clear a complaint cannot 9 be cured by amendment, the court may dismiss without leave to amend. Cato, 70 10 F.3d at 1107-11; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009). 11 IV. 12 DISCUSSION 13 A. EIGHTH AMENDMENT THREAT TO SAFETY CLAIMS 14 Plaintiff seeks to allege an Eighth Amendment claim based on “threats to 15 safety” against defendants Farley, Arebalo, and Graves. As discussed below, these 16 claims are subject to dismissal. 17 1. Applicable Law 18 The Eighth Amendment protects prisoners from inhumane methods of 19 punishment and from inhumane conditions of confinement. Morgan v. Morgensen, 20 465 F.3d 1041, 1045 (9th Cir. 2006) (as amended). In order to state an Eighth 21 Amendment claim, a plaintiff must “objectively show that he was deprived of 22 something ‘sufficiently serious,’” and “make a subjective showing that the deprivation 23 occurred with deliberate indifference to the inmate’s health or safety.” Foster v. 24 Runnels, 554 F.3d 807, 812 (9th Cir. 2009) (citing Farmer v. Brennan, 511 U.S. 825, 25 834, 114 S.Ct. 1970, 128 L. Ed. 2d 811 (1994)). “A mere threat may not state a cause 26 of action” under the Eighth Amendment. Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 27 1987) (per curiam). 1 2. Analysis 2 Here, Plaintiff alleges that after physically assaulting Plaintiff, defendant Farley 3 told Plaintiff “‘if you file any more appeals on me or even think about filing any 4 lawsuits . . . I’ll make sure you end up in the hole, there may be a mysterious kite 5 dropped on you.” Dkt. 13 at 10. Plaintiff also alleges defendant Arebalo advised 6 Plaintiff not to appeal his RVR hearing determination and stated, “it may get you 7 fucked over and hurt.” Id. at 12. Plaintiff further alleges defendant Graves told 8 Plaintiff “it’s nothing for you to end up hanging” and made reference to “what 9 happen[ed] to Epstein”. Id. at 16. Plaintiff argues these “comment[s] (threats)” 10 placed him in imminent danger of serious physical injury. These mere threats of 11 harm, however, do not rise to the level of an Eighth Amendment violation. Gaut, 810 12 F.2d at 925; Ferguson v. Pagati, No. CV 12-00653-VBF (DTB), 2013 WL 3989426, at 13 *5 (C.D. Cal. Aug. 1, 2013) (allegations of threats of physical violence, without more, 14 are insufficient to state a claim under the Eighth Amendment). 15 Accordingly, Plaintiff’s Eighth Amendment claims against defendants Farley, 16 Arebalo, and Graves for verbal threats are subject to dismissal. 17 B. FOURTEENTH AMENDMENT DUE PROCESS CLAIMS 18 Plaintiff alleges a Fourteenth Amendment due process claim against defendants 19 Farley, Arebalo, Williams, and Davis. As discussed below, these claims are subject to 20 dismissal. 21 1. Applicable Law 22 The Due Process Clause of the Fourteenth Amendment protects individuals 23 against deprivations of “life, liberty, or property.” U.S. Const. amend. XIV, § 1. “A 24 liberty interest may arise from the Constitution itself, by reason of guarantees implicit 25 in the word ‘liberty,’ or it may arise from an expectation or interest created by state 26 laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221, 125 S. Ct. 2384, 162 L. Ed. 27 2d 174 (2005) (citations omitted). Due process analysis proceeds in two steps: “We 1 deprived, and if so we ask whether the procedures followed by the State were 2 constitutionally sufficient.” Swarthout v. Cooke, 562 U.S. 216, 219, 131 S. Ct. 859, 3 178 L. Ed. 2d 732 (2011). 4 Courts have held prisoners have “no constitutionally guaranteed immunity 5 from being falsely or wrongly accused of conduct which may result in the deprivation 6 of a protected liberty interest,” but they do have “the right not to be deprived of a 7 protected liberty interest without due process of law.” Freeman v. Rideout, 808 F.2d 8 949, 951 (2d Cir. 1986); see also Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 9 1989) (finding inmate’s claims based upon falsity of charges brought by a prison 10 counselor did not state a constitutional claim). In order to establish the deprivation of 11 a protected liberty interest, however, a prisoner must allege an “atypical, significant 12 deprivation in which a State might conceivably create a liberty interest.” Sandin v. 13 Conner, 515 U.S. 472, 486, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995). 14 It is well established that inmates subjected to disciplinary action are entitled to 15 certain procedural protections under the Due Process Clause but are not entitled to 16 the full panoply of rights afforded to criminal defendants. Wolff v. McDonnell, 418 17 U.S. 539, 556 (1974). A prisoner facing the loss of good time credits “must receive (1) 18 advance written notice of the disciplinary charges; (2) an opportunity, when consistent 19 with institutional safety and correctional goals, to call witnesses and present 20 documentary evidence in his defense; and (3) a written statement by the factfinder of 21 the evidence relied on and the reasons for the disciplinary action.” Superintendent, 22 Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454, 105 S. Ct. 2768, 86 L. Ed. 2d 356 23 (1985) (citing Wolff, 418 U.S. at 563-567). If the procedural protections required by 24 due process are afforded, a prisoner’s disciplinary proceeding cannot violate due 25 process so long as “some evidence” supports the disciplinary decision. Hill, 472 U.S. 26 at 455. 27 /// 1 2. Analysis 2 a. Defendant Farley 3 Plaintiff alleges defendant Farley violated his due process rights by issuing a 4 “serious RVR” when Plaintiff “does not have repeated offenses for this charge” and 5 defendant Farley’s “dishonest” allegations in the RVR are a “clear abuse of 6 discretion.” Dkt. 13 at 6. Prisoners, however, have “no constitutionally guaranteed 7 immunity from being falsely or wrongly accused of conduct which may result in the 8 deprivation of a protected liberty interest.” Freeman, 808 F.2d at 95. Accordingly, 9 Plaintiff fails to state a due process claim against defendant Farley for falsely accusing 10 him of a rule violation. 11 b. Defendant Arebalo 12 Plaintiff alleges defendant Arebalo violated his due process rights by finding 13 Plaintiff guilty of the rule violation without meeting the “preponderance of evidence” 14 standard, and because defendant Arebalo was biased, asked non-impartial questions, 15 and denied Plaintiff’s request for a relevant, material witness. Dkt. 13 at 7-10. 16 First, a fair trial in a fair tribunal is a basic requirement of due process that 17 applies in prison disciplinary proceedings. In re Murchison, 349 U.S. 133, 136, 75 S. 18 Ct. 623, 99 L. Ed. 942 (1955); Wolff, 418 U.S. at 570-71. Fairness requires an absence 19 of actual bias and of the probability of unfairness. In re Murchison, 349 U.S. at 136. 20 “There is a presumption of honesty and integrity on the part of decision makers 21 which may be overcome by evidence of a risk of actual bias or prejudgment based on 22 special facts and circumstances.” Burgess v. Rios, No. 1:12-CV-00544-AWI (SK), 23 2015 WL 3402933, at *6 (E.D. Cal. May 27, 2015), aff’d, 658 F. App’x 335 (9th Cir. 24 2016) (citing Withrow v. Larkin, 421 U.S. 35, 46-47, 95 S. Ct. 1456, 43 L. Ed. 2d 712 25 (1975)). Plaintiff cites no evidence suggesting that the hearing officer relied upon 26 knowledge or information acquired outside of the disciplinary proceedings or was 27 otherwise biased against Plaintiff. Strawderman v. Ives, No. 3:18-CV-00609-JR, 2018 1 3:18-CV-00609-MK, 2018 WL 5284194 (D. Or. Oct. 24, 2018). Plaintiff has, 2 therefore, failed to show he was denied a “fair tribunal.” In re Murchison, 349 U.S. at 3 136. 4 Second, in determining whether “some evidence” supports a disciplinary 5 decision, this Court does not “make its own assessment of the credibility of witnesses 6 or reweigh the evidence.” Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987). Prison 7 discipline may not be overturned even when the critical “evidence” is confidential 8 hearsay, so long as the totality of the circumstances suggests that the informants are 9 reliable, with more severe punishments requiring greater indicia of the hearsay’s 10 reliability. Dawson v. Norwood, No. CV 08-01070-AHS (RZ), 2010 WL 761226, at 11 *2 (C.D. Cal. Mar. 1, 2010), aff’d, 443 F. App’x 286 (9th Cir. 2011) (denying habeas 12 relief, finding hearsay in reporting officer’s initial report satisfied “some evidence” 13 requirement to support guilty finding at disciplinary hearing that resulted in loss of 60 14 days’ credit) (citing Kyle v. Hanberry, 677 F.2d 1386, 1390 (11th Cir. 1982)). Law 15 enforcement officers are presumed to be reliable, at least when hearsay that they 16 provide supplies a basis for arrest. Id. (citing United States v. Angulo-Lopez, 791 17 F.2d 1394, 1397 (9th Cir. 1986)). Here, defendant Farley is presumed to be reliable 18 and Petitioner has not established the RVR was not sufficiently reliable to support a 19 guilty finding at a disciplinary hearing. Dawson, 2010 WL 761226, at *2. Defendant 20 Farley’s report and testimony, therefore, meets the “some evidence” standard required 21 by due process and this Court cannot reweigh the evidence. Cato, 824 F.2d at 705. 22 Third, due process prohibits prison officials from arbitrarily denying an 23 inmate’s request to present witnesses or physical evidence. Hill, 472 U.S. at 454-455; 24 Bostic v. Carlson, 884 F.2d 1267, 1273 (9th Cir. 1988). It is the prison official’s 25 burden to prove that his decision denying the right to call a witness or introduce 26 physical evidence was sufficiently justified. Ponte v. Real, 471 U.S. 491, 499, 105 S. 27 Ct. 2192, 85 L. Ed. 2d 553 (1985). Prison officials may, however, disallow evidence 1 hazards under the circumstances of the case. Wolff, 418 U.S. at 566. Plaintiff alleges 2 defendant Arebalo denied Plaintiff leave to call the nurse who treated him on April 2, 3 2020 as a witness to testify that Plaintiff’s 1:00 p.m. medical appointment was done 4 before his 1:15 p.m. scheduled call, on the basis her testimony was not relevant. Dkt. 5 13 at 9-10. The Court finds that whether or not Plaintiff could get back from medical 6 in time for his 1:15 p.m. phone call is irrelevant to whether he made the statements to 7 defendant Farley that resulted in defendant Farley issuing an RVR for unlawful 8 influence. Defendant Arebalo’s finding that the nurse-witness could not provide 9 additional relevant information regarding the RVR was, therefore, not arbitrary. Hill, 10 472 U.S. at 454-455; Wolff, 418 U.S. at 566. 11 c. Defendant Williams 12 Plaintiff alleges defendant Williams improperly rescinded Plaintiff’s “level 1 13 override endorsement” and refused to discuss Plaintiff’s upcoming “parole date” at a 14 classification hearing. Dkt. 13 at 14. Plaintiff, however, has no liberty interest in his 15 classification status. See Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007) 16 (holding prison regulations governing inmate classification did not create cognizable 17 Eighth or Fourteenth Amendment liberty interests). Moreover, Plaintiff does not 18 explain how defendant Williams’s failure to assign him a staff assistant constitutes an 19 “atypical, significant deprivation in which a State might conceivably create a liberty 20 interest.” Sandin, 515 U.S. at 486. 21 d. Defendant Davis 22 Similarly, Plaintiff’s allegations that defendant Davis “endorsed” Plaintiff to be 23 placed in a facility “far from his county” fails to state a due process claim because 24 Plaintiff fails to identify any established liberty interest in avoiding being transferred to 25 a farther prison. See Olim v. Wakinekona, 461 U.S. 238, 245 (1983); Meachum v. 26 Fano, 427 U.S. 215, 225-27 (1976); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 27 1991) (holding prisoner “was not entitled to a hearing prior to being transferred from 1 (holding prisoner “has not alleged that any regulation or procedure created a 2 substantive restriction on the prison authorities’ decision to return him to the 3 penitentiary. No liberty or property interest is violated where there is a failure to 4 allege a restriction on the authorities’ right to transfer.”). 5 Accordingly, Plaintiff’s Fourteenth Amendment due process claims are subject 6 to dismissal. 7 V. 8 LEAVE TO FILE A SECOND AMENDED COMPLAINT 9 For the foregoing reasons, the FAC is subject to dismissal. As the Court is 10 unable to determine whether amendment would be futile, leave to amend is granted. 11 See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam). Plaintiff is 12 advised that the Court’s determination herein that the allegations in the FAC are 13 insufficient to state a particular claim should not be seen as dispositive of that claim. 14 Accordingly, while the Court believes Plaintiff has failed to plead sufficient factual 15 matter in his pleading, accepted as true, to state a claim to relief that is viable on its 16 face, Plaintiff is not required to omit any claim in order to pursue this action. 17 However, if Plaintiff asserts a claim in his Second Amended Complaint that has been 18 found to be deficient without addressing the claim’s deficiencies, then the Court, 19 pursuant to the provisions of 28 U.S.C. § 636, ultimately will submit to the assigned 20 district judge a recommendation that such claim be dismissed with prejudice for 21 failure to state a claim, subject to Plaintiff’s right at that time to file Objections with 22 the district judge as provided in the Local Rules Governing Duties of Magistrate 23 Judges. 24 Accordingly, IT IS ORDERED THAT within twenty-one (21) days of the 25 service date of this Order, Plaintiff choose one of the following three options: 26 1. Plaintiff may file a Second Amended Complaint to attempt to cure the 27 deficiencies discussed above. The Clerk of Court is directed to mail Plaintiff a blank 1 Central District civil rights complaint form to use for filing the Second Amended 2 Complaint, which the Court encourages Plaintiff to use. 3 If Plaintiff chooses to file a Second Amended Complaint, he must clearly 4 designate on the face of the document that it is the “Second Amended Complaint,” it 5 must bear the docket number assigned to this case, and it must be retyped or 6 rewritten in its entirety, preferably on the court-approved form. Plaintiff shall not 7 include new defendants or allegations that are not reasonably related to the claims 8 asserted in the FAC. In addition, the Second Amended Complaint must be complete 9 without reference to the FAC, Complaint or any other pleading, attachment, or 10 document. 11 An amended complaint supersedes the preceding complaint. Ferdik v. 12 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). After amendment, the Court will treat 13 all preceding complaints as nonexistent. Id. Because the Court grants Plaintiff 14 leave to amend as to all his claims raised here, any claim raised in a preceding 15 complaint is waived if it is not raised again in the Second Amended Complaint. 16 Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012). 17 The Court advises Plaintiff that it generally will not be well-disposed toward 18 another dismissal with leave to amend if Plaintiff files a Second Amended Complaint 19 that continues to include claims on which relief cannot be granted. “[A] district 20 court’s discretion over amendments is especially broad ‘where the court has already 21 given a plaintiff one or more opportunities to amend his complaint.’” Ismail v. Cty. 22 of Orange, 917 F. Supp. 2d 1060, 1066 (C.D. Cal. 2012); see also Ferdik, 963 F.2d at 23 1261. Thus, if Plaintiff files a Second Amended Complaint with claims on 24 which relief cannot be granted, the Second Amended Complaint will be 25 dismissed without leave to amend and with prejudice. 26 2. Alternatively, Plaintiff may file a notice with the Court that he intends to 27 stand on the allegations in his FAC. If Plaintiff chooses to stand on the FAC despite 1 recommendation to the assigned district judge that the deficient claims discussed 2 in this Order be dismissed with prejudice for failure to state a claim, subject to 3 Plaintiff’s right at that time to file Objections with the district judge as provided in the 4 Local Rules Governing Duties of Magistrate Judges. If the assigned district judge 5 accepts the findings and recommendations of the undersigned Magistrate Judge and 6 dismisses the deficient claims discussed in this Order, the Court will issue a separate 7 order regarding service of any claims remaining in the FAC at that time. 8 3. Finally, Plaintiff may voluntarily dismiss the action without prejudice, 9 pursuant to Federal Rule of Civil Procedure 41(a). The Clerk of Court is directed to 10 mail Plaintiff a blank Notice of Dismissal Form, which the Court encourages Plaintiff 11 to use if he chooses to voluntarily dismiss the action. 12 Plaintiff is explicitly cautioned that failure to timely respond to this 13 Order will result in this action being dismissed without prejudice for failure to 14 prosecute and/or obey Court orders pursuant to Federal Rule of Civil 15 Procedure 41(b). 16 17 Dated: October 13, 2020
18 HONORABLE KENLY KIYA KATO United States Magistrate Judge 19 20 21 22 23 24 25 26 27