1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 ANDREW LOPEZ, Case No. 21-cv-07136-PJH
6 Plaintiff, ORDER DISMISSING COMPLAINT 7 v. WITH LEAVE TO AMEND
8 KATHLEEN ALLISON, et al., Defendants. 9
10 11 Plaintiff, a state prisoner, has filed a pro se civil rights complaint under 42 U.S.C. § 12 1983. He has paid the filing fee. 13 DISCUSSION 14 STANDARD OF REVIEW 15 Federal courts must engage in a preliminary screening of cases in which prisoners 16 seek redress from a governmental entity or officer or employee of a governmental entity. 17 28 U.S.C. 18 § 1915A(a). In its review, the Court must identify any cognizable claims, and dismiss any 19 claims which are frivolous, malicious, fail to state a claim upon which relief may be 20 granted, or seek monetary relief from a defendant who is immune from such relief. Id. at 21 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica 22 Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 23 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement 24 of the claim showing that the pleader is entitled to relief.” Although a complaint “does not 25 need detailed factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his 26 ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic 27 recitation of the elements of a cause of action will not do. . . . Factual allegations must 1 Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A complaint must proffer “enough 2 facts to state a claim to relief that is plausible on its face.” Id. at 570. The United States 3 Supreme Court has explained the “plausible on its face” standard of Twombly: “While 4 legal conclusions can provide the framework of a complaint, they must be supported by 5 factual allegations. When there are well-pleaded factual allegations, a court should 6 assume their veracity and then determine whether they plausibly give rise to an 7 entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 8 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1) a right 9 secured by the Constitution or laws of the United States was violated, and (2) the alleged 10 deprivation was committed by a person acting under the color of state law. West v. 11 Atkins, 487 U.S. 42, 48 (1988). 12 LEGAL CLAIMS 13 Plaintiff states that he was the victim of excessive force by a correctional officer 14 and his due process rights were violated at a Rules Violation Report (“RVR”) hearing. 15 The treatment a convicted prisoner receives in prison and the conditions under which he 16 is confined are subject to scrutiny under the Eighth Amendment. Helling v. McKinney, 17 509 U.S. 25, 31 (1993). “After incarceration, only the unnecessary and wanton infliction 18 of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth 19 Amendment.” Whitley v. Albers, 475 U.S. 312, 319 (1986) (ellipsis in original) (internal 20 quotation and citation omitted). When prison officials stand accused of using excessive 21 force in violation of the Eighth Amendment, the core judicial inquiry is whether force was 22 applied in a good-faith effort to maintain or restore discipline, or maliciously and 23 sadistically to cause harm. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). 24 The Due Process Clause of the Fourteenth Amendment protects prisoners from 25 being deprived of life, liberty, or property without due process of law. Wolff v. McDonnell, 26 418 U.S. 539, 556 (1974). The procedural guarantees of the Fifth and Fourteenth 27 Amendments’ Due Process Clauses apply only when a constitutionally protected liberty 1 Liberty interests can arise both from the Constitution and from state law. See Wilkinson 2 v. Austin, 545 U.S. 209, 221 (2005); Hewitt v. Helms, 459 U.S. 460, 466 (1983). The Due 3 Process Clause itself does not confer on inmates a liberty interest in avoiding “more 4 adverse conditions of confinement.” Id. The Due Process Clause itself does not confer 5 on inmates a liberty interest in being confined in the general prison population instead of 6 administrative segregation. See Hewitt, 459 U.S. at 466-68. 7 With respect to liberty interests arising from state law, the existence of a liberty 8 interest created by prison regulations is determined by focusing on the nature of the 9 deprivation. Sandin v. Connor, 515 U.S. 472, 481-84 (1995). Liberty interests created 10 by prison regulations are limited to freedom from restraint which “imposes atypical and 11 significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at 12 484. When conducting the Sandin inquiry, Courts should look to Eighth Amendment 13 standards as well as the prisoners’ conditions of confinement, the duration of the 14 sanction, and whether the sanctions will affect the length of the prisoners’ sentence. See 15 Serrano, 345 F.3d at 1078. 16 The Supreme Court has established five procedural requirements for disciplinary 17 hearings. See Wolff, 418 U.S. at 539. First, “written notice of the charges must be given 18 to the disciplinary-action defendant in order to inform him of the charges and to enable 19 him to marshal the facts and prepare a defense.” Id. at 564. Second, “at least a brief 20 period of time after the notice, no less than 24 hours, should be allowed to the inmate to 21 prepare for the appearance before the [disciplinary committee].” Id. Third, “there must 22 be a ‘written statement by the factfinders as to the evidence relied on and reasons’ for the 23 disciplinary action.” Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 489 (1972)). Fourth, 24 “the inmate facing disciplinary proceedings should be allowed to call witnesses and 25 present documentary evidence in his defense when permitting him to do so will not be 26 unduly hazardous to institutional safety or correctional goals.” Id. at 566. Fifth, “[w]here 27 an illiterate inmate is involved . . . or where the complexity of the issues makes it unlikely 1 adequate comprehension of the case, he should be free to seek the aid of a fellow 2 inmate, or . . . to have adequate substitute aid . . . from the staff or from a[n] . . . inmate 3 designated by the staff.” Id. at 570. The Court specifically held that the Due Process 4 Clause does not require that prisons allow inmates to cross-examine their accusers, see 5 id. at 567-68, and does not give rise to a right to counsel in the proceedings, see id. at 6 569-70.
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1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 ANDREW LOPEZ, Case No. 21-cv-07136-PJH
6 Plaintiff, ORDER DISMISSING COMPLAINT 7 v. WITH LEAVE TO AMEND
8 KATHLEEN ALLISON, et al., Defendants. 9
10 11 Plaintiff, a state prisoner, has filed a pro se civil rights complaint under 42 U.S.C. § 12 1983. He has paid the filing fee. 13 DISCUSSION 14 STANDARD OF REVIEW 15 Federal courts must engage in a preliminary screening of cases in which prisoners 16 seek redress from a governmental entity or officer or employee of a governmental entity. 17 28 U.S.C. 18 § 1915A(a). In its review, the Court must identify any cognizable claims, and dismiss any 19 claims which are frivolous, malicious, fail to state a claim upon which relief may be 20 granted, or seek monetary relief from a defendant who is immune from such relief. Id. at 21 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica 22 Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 23 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement 24 of the claim showing that the pleader is entitled to relief.” Although a complaint “does not 25 need detailed factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his 26 ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic 27 recitation of the elements of a cause of action will not do. . . . Factual allegations must 1 Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A complaint must proffer “enough 2 facts to state a claim to relief that is plausible on its face.” Id. at 570. The United States 3 Supreme Court has explained the “plausible on its face” standard of Twombly: “While 4 legal conclusions can provide the framework of a complaint, they must be supported by 5 factual allegations. When there are well-pleaded factual allegations, a court should 6 assume their veracity and then determine whether they plausibly give rise to an 7 entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 8 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1) a right 9 secured by the Constitution or laws of the United States was violated, and (2) the alleged 10 deprivation was committed by a person acting under the color of state law. West v. 11 Atkins, 487 U.S. 42, 48 (1988). 12 LEGAL CLAIMS 13 Plaintiff states that he was the victim of excessive force by a correctional officer 14 and his due process rights were violated at a Rules Violation Report (“RVR”) hearing. 15 The treatment a convicted prisoner receives in prison and the conditions under which he 16 is confined are subject to scrutiny under the Eighth Amendment. Helling v. McKinney, 17 509 U.S. 25, 31 (1993). “After incarceration, only the unnecessary and wanton infliction 18 of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth 19 Amendment.” Whitley v. Albers, 475 U.S. 312, 319 (1986) (ellipsis in original) (internal 20 quotation and citation omitted). When prison officials stand accused of using excessive 21 force in violation of the Eighth Amendment, the core judicial inquiry is whether force was 22 applied in a good-faith effort to maintain or restore discipline, or maliciously and 23 sadistically to cause harm. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). 24 The Due Process Clause of the Fourteenth Amendment protects prisoners from 25 being deprived of life, liberty, or property without due process of law. Wolff v. McDonnell, 26 418 U.S. 539, 556 (1974). The procedural guarantees of the Fifth and Fourteenth 27 Amendments’ Due Process Clauses apply only when a constitutionally protected liberty 1 Liberty interests can arise both from the Constitution and from state law. See Wilkinson 2 v. Austin, 545 U.S. 209, 221 (2005); Hewitt v. Helms, 459 U.S. 460, 466 (1983). The Due 3 Process Clause itself does not confer on inmates a liberty interest in avoiding “more 4 adverse conditions of confinement.” Id. The Due Process Clause itself does not confer 5 on inmates a liberty interest in being confined in the general prison population instead of 6 administrative segregation. See Hewitt, 459 U.S. at 466-68. 7 With respect to liberty interests arising from state law, the existence of a liberty 8 interest created by prison regulations is determined by focusing on the nature of the 9 deprivation. Sandin v. Connor, 515 U.S. 472, 481-84 (1995). Liberty interests created 10 by prison regulations are limited to freedom from restraint which “imposes atypical and 11 significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at 12 484. When conducting the Sandin inquiry, Courts should look to Eighth Amendment 13 standards as well as the prisoners’ conditions of confinement, the duration of the 14 sanction, and whether the sanctions will affect the length of the prisoners’ sentence. See 15 Serrano, 345 F.3d at 1078. 16 The Supreme Court has established five procedural requirements for disciplinary 17 hearings. See Wolff, 418 U.S. at 539. First, “written notice of the charges must be given 18 to the disciplinary-action defendant in order to inform him of the charges and to enable 19 him to marshal the facts and prepare a defense.” Id. at 564. Second, “at least a brief 20 period of time after the notice, no less than 24 hours, should be allowed to the inmate to 21 prepare for the appearance before the [disciplinary committee].” Id. Third, “there must 22 be a ‘written statement by the factfinders as to the evidence relied on and reasons’ for the 23 disciplinary action.” Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 489 (1972)). Fourth, 24 “the inmate facing disciplinary proceedings should be allowed to call witnesses and 25 present documentary evidence in his defense when permitting him to do so will not be 26 unduly hazardous to institutional safety or correctional goals.” Id. at 566. Fifth, “[w]here 27 an illiterate inmate is involved . . . or where the complexity of the issues makes it unlikely 1 adequate comprehension of the case, he should be free to seek the aid of a fellow 2 inmate, or . . . to have adequate substitute aid . . . from the staff or from a[n] . . . inmate 3 designated by the staff.” Id. at 570. The Court specifically held that the Due Process 4 Clause does not require that prisons allow inmates to cross-examine their accusers, see 5 id. at 567-68, and does not give rise to a right to counsel in the proceedings, see id. at 6 569-70. 7 “In a § 1983 or a Bivens action - where masters do not answer for the torts of their 8 servants - the term ‘supervisory liability’ is a misnomer. Absent vicarious liability, each 9 Government official, his or her title notwithstanding, is only liable for his or her own 10 misconduct.” Iqbal, 556 U.S. at 677 (finding under Twombly and Rule 8 of the Federal 11 Rules of Civil Procedure, that complainant-detainee in a Bivens action failed to plead 12 sufficient facts “plausibly showing” that top federal officials “purposely adopted a policy of 13 classifying post-September-11 detainees as ‘of high interest’ because of their race, 14 religion, or national origin” over more likely and non-discriminatory explanations). 15 Plaintiff states that without provocation he and his friend were assaulted by 16 another inmate and plaintiff defended himself. The assailant fell to the ground and 17 plaintiff stood in place several feet away when defendant Correctional Officer Thomas 18 arrived and struck plaintiff in the low left buttock with a baton. Thomas used so much 19 force that plaintiff fell to the ground and suffered a black bruise for three months. 20 Plaintiff and his friend were issued identical RVRs for fighting. The hearing officer, 21 defendant Lt. Butcher found plaintiff guilty even though plaintiff’s friend was found not 22 guilty at a different hearing with a different hearing officer, despite the same set of facts. 23 Plaintiff alleges that several supervisor defenders ratified the guilty finding. Plaintiff also 24 states that defendant Butcher falsified the record by viewing video footage of the incident 25 and falsely reporting the content. Plaintiff does not state the punishment from the RVR, 26 but alleges that it raised his risk of violence assessment and was referenced in denying 27 him parole at two hearings. 1 Thomas. The remaining claims and defendants are dismissed with leave to amend to 2 provide more information. With respect to the many supervisor defendants, plaintiff must 3 describe their specific actions and how they were involved in violating his due process 4 rights. With respect to defendant Butcher plaintiff must also provide more information. 5 Plaintiff must describe his punishment, if he lost time credits and how any other 6 punishment imposed an atypical and significant hardship. He should also provide more 7 information how the hearing violated his constitutional rights with respect to Wolff. 8 CONCLUSION 9 1. The complaint is DISMISSED with leave to amend. Plaintiff may indicate he 10 only wishes to proceed with the excessive force claim. Or he may file an amended 11 complaint with more information for the other defendants and claims. An amended 12 complaint must be filed within twenty-eight (28) days of the date this order is filed and 13 must include the caption and civil case number used in this order and the words 14 AMENDED COMPLAINT on the first page. Because an amended complaint completely 15 replaces the original complaint, plaintiff must include in it all the claims he wishes to 16 present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not 17 incorporate material from the original complaint by reference. 18 2. It is the plaintiff’s responsibility to prosecute this case. Plaintiff must keep the 19 court informed of any change of address by filing a separate paper with the clerk headed 20 “Notice of Change of Address,” and must comply with the court’s orders in a timely 21 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute 22 pursuant to Federal Rule of Civil Procedure 41(b). 23 IT IS SO ORDERED. 24 Dated: November 1, 2021 25 26 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 27 United States District Judge