Mickey v. Williams

• Court: District Court, S.D. California
• Decided: July 29, 2025
• Docket: 3:24-cv-01751
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RYAN CHRISTOPHER MICKEY, Case No.: 3:24-cv-01751-RBM-LR CDCR #AD-2970, 12

Plaintiff, 13 ORDER DISMISSING COMPLAINT vs. WITH LEAVE TO AMEND 14 PURSUANT TO 28 U.S.C. § 1915A SERGEANT WILLIAMS, et al., 15 Defendants. 16 17 18 Plaintiff Ryan Christopher Mickey, a state prisoner proceeding pro se, has filed a 19 Complaint pursuant to 42 U.S.C. § 1983 and has paid the civil filing fee. (Docs. 1–2.) 20 I. Screening Pursuant to 28 U.S.C. § 1915A 21 A. Standard of Review 22 The Court must conduct an initial review of the Complaint under 28 U.S.C. § 1915A, 23 which “mandates early review—‘before docketing [] or [] as soon as practicable after 24 docketing’ — for all complaints ‘in which a prisoner seeks redress from a governmental 25 entity or officer or employee of a governmental entity.’” Chavez v. Robinson, 817 F.3d 26 1162, 1168 (9th Cir. 2016) (quoting 28 U.S.C. § 1915A(a)). “‘On review, the court shall 27 . . . dismiss the complaint, or any portion of the complaint,’ if it ‘(1) is frivolous, malicious, 28 or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from 1 a defendant who is immune from such relief.’” Olivas v. Nevada ex rel. Dep’. of Corr., 2 856 F.3d 1281, 1283 (9th Cir. 2017) (quoting 28 U.S.C. § 1915A(b)). 3 Screening pursuant to § 1915A “incorporates the familiar standard applied in the 4 context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” 5 Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). “The Rule 12(b)(6) standard 6 requires a complaint to ‘contain sufficient factual matter, accepted as true, to state a claim 7 to relief that is plausible on its face.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 8 (2009)). There must be more than “labels and conclusions” or “a formalistic recitation of 9 the elements of a cause of action,” to plausibly state a claim, because “[t]hreadbare recitals 10 of the elements of a cause of action, supported by mere conclusory statements, do not 11 suffice” to state a claim. Iqbal, 556 U.S. at 678. 12 “Under § 1915A, when determining whether a complaint states a claim, a court must 13 accept as true all allegations of material fact and must construe those facts in the light most 14 favorable to the plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). “When 15 there are well-pleaded factual allegations, a court should assume their veracity and then 16 determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 17 679. “But where the well-pleaded facts do not permit the court to infer more than the 18 possibility of misconduct, the complaint has alleged—but it has not ‘show(n)’—‘that the 19 pleader is entitled to relief.’” Id. (quoting Fed. R. Civ. P. 8(a)(2)). “To establish § 1983 20 liability, a plaintiff must show both (1) deprivation of a right secured by the Constitution 21 and laws of the United States, and (2) that the deprivation was committed by a person 22 acting under color of state law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th 23 Cir. 2012). 24 B. Allegations in the Complaint 25 Plaintiff identifies three “incidents” which occurred while he was housed at the 26 Richard J. Donovan Correctional Facility (“RJD”) in San Diego, California, in which the 27 three Defendants named in this action, RJD Correctional Officers Williams, Corona and 28 Velasquez, are alleged to have “targeted” and “profiled” Plaintiff to prevent him “from 1 being commuted or paroled.” (Doc. 1 at 2.) He alleges: (1) Defendant Williams filed 2 frivolous write-ups, (2) Defendant Corona threatened him and enlisted Defendant 3 Velasquez to issue a frivolous write-up, and (3) Defendant Velasquez conspired with 4 Defendant Corona to issue frivolous write-ups, all with the sole intention of preventing 5 Plaintiff from being paroled or having his sentence commuted. (Id.) 6 Specifically, Plaintiff alleges that on July 22, 2024, while outside walking on the 7 track with another inmate, Defendant Sergeant Williams, whom Plaintiff had never 8 encountered before, ordered Plaintiff to be searched. (Id. at 8.) Protocol required both 9 inmates to be searched, but Williams directed the other inmate to leave. (Id.) Plaintiff had 10 picked up a small necklace while walking on the track and had placed it on the top of his 11 hat, intending to turn it in, which Williams confiscated. (Id.) Plaintiff “was later written 12 up for contraband and [Williams] called it a ‘Chain-link Chain.’” (Id.) Plaintiff “told the 13 sergeant that heard the write up, that everything on the write up was true,” but also told 14 him that he felt as if he were being targeted because he had done nothing wrong. (Id.) 15 Plaintiff alleges the paperwork falsely reflects he pleaded guilty, when in fact he “simply 16 stated that I agreed with the verbiage on the write up he was reading aloud to me because 17 it was the truth. I did have a necklace on my hat. But again, was not doing anything wrong 18 and this necklace posed absolutely no threat to the safety & security of the institution and 19 Sergeant Williams had no business searching me to begin with. I was found guilty of 20 possessing contraband.” (Id.) 21 The second incident occurred on August 8, 2024, when a new prisoner was placed 22 in Plaintiff’s cell. (Id. at 9.) The new prisoner told Plaintiff he used heroin, but since 23 Plaintiff does not use drugs they both agreed they were incompatible, and the new prisoner 24 was moved to a different cell. (Id.) When Corona “came on duty and was told of the 25 prisoner move, Corona banged his fist on the desk and began demanding that they set me 26 up,” and said, “he would make sure that I went down and never go home.” (Id.) Shortly 27 after Corona made that statement, Corona and Velasquez had “a heated conversation” with 28 each other “planning to set [Plaintiff] up.” (Id.) 1 The third incident occurred on September 1, 2024, when Plaintiff was called down 2 to the program office to review footage of an incident where he was falsely accused of and 3 written up for refusing a cellmate. (Id. at 10.) Williams opened the door to the office and 4 asked Plaintiff what he wanted. (Id.) When Plaintiff said he had been called to the office, 5 Williams told him to “take those earrings out of your ears.” (Id.) Plaintiff explained that 6 they were permanently crimped in and would need to be cut out, which Plaintiff had already 7 arranged to do with medical staff, but Williams said, “I’ll pin you down and cut them out 8 myself.” (Id.) Plaintiff backed into an area to where a surveillance camera could record 9 video and audio and asked, “so, you’re going to assault me?” (Id.) Williams “said in a 10 panicked voice ‘I’m only having a conversation’ and hurried into the office.” (Id.) 11 Plaintiff contends all three incidents were captured on surveillance cameras and are 12 available to be viewed in support of his claims. (Id. at 9–10.) He claims the Defendants’ 13 actions amounted to cruel and unusual punishment, a violation of due process amounting 14 to a “loss of freedom,” and “harassing, targeting and profiling . . . turning into retaliation.” 15 (Id. at 3.) 16 1) Eighth Amendment 17 Plaintiff first alleges the Defendants’ actions subjected him to cruel and unusual 18 punishment. (Doc. 1 at 3.) The Eighth Amendment forbids prison officials from “the 19 unnecessary and wanton infliction of pain.” Whitley v. Albers, 475 U.S. 312, 319 (1986). 20 An Eighth Amendment violation includes an objective prong, which requires the 21 deprivation to be “objectively, sufficiently serious,” and a subjective prong, which requires 22 allegations that the prison official had a “state of mind [] of ‘deliberate indifference’ to 23 inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 834 (1994); see id. at 837 24 (holding that a prison official “must both be aware of facts from which the inference could 25 be drawn that a substantial risk of serious harm exists, and he must also draw the 26 inference.”) 27 Plaintiff’s allegations that he was threatened and harassed fail to state a claim 28 because the mere making of threats or harassing comments do not give rise to a civil rights 1 claim under § 1983. See Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996), amended by 2 135 F.3d 1318 (9th Cir. 1998) (verbal harassment is not cognizable as a constitutional 3 deprivation under § 1983); Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) 4 (verbal harassment or abuse is not constitutional deprivation under § 1983); Gaut v. Sunn, 5 810 F.2d 923, 925 (9th Cir. 1987) (“[I]t trivializes the Eighth Amendment to believe a 6 threat constitutes a constitutional wrong.”); Somers v. Thurman, 109 F.3d 614, 622 (9th 7 Cir. 1997) (“the exchange of verbal insults between inmates and guards is a constant, daily 8 ritual observed in this nation’s prisons” of which “we do not approve,” but which do not 9 violate the Eighth Amendment). 10 Plaintiff’s Eighth Amendment claim is dismissed sua sponte under 28 U.S.C. 11 § 1915A for failure to state a claim. See Wilhelm, 680 F.3d at 1121; Iqbal, 556 U.S. at 679. 12 2) Due Process 13 Plaintiff claims Defendants’ actions violated “due process and loss of freedom 14 resulting from frivolous write ups.” (Doc. 1 at 3.) The Due Process Clause of the 15 Fourteenth Amendment prohibits states from “depriv[ing] any person of life, liberty, or 16 property, without due process of law.” U.S. Const. amend. XIV, § 1. A prisoner is entitled 17 to due process protections during disciplinary proceedings where protected liberty interests 18 are at stake. Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003). To show a 19 disciplinary proceeding implicates a liberty interest protected by the Due Process Clause, 20 a prisoner must show that his sentence was exceeded in “an unexpected manner” or resulted 21 in “atypical and significant hardship on the inmate in relation to the ordinary incidents of 22 prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). If no such liberty interest is 23 implicated, a prisoner is granted minimum due process protection, which requires only that 24 the outcome be “supported by some evidence in the record.” Superintendent v. Hill, 472 25 U.S. 445, 454–55 (1985). If a protected liberty interest arises, due process requires written 26 notice of the charges and evidence relied on and the reasons for the action taken, an 27 opportunity “to call witnesses and present documentary evidence in his defense when” 28 doing so “will not be unduly hazardous to institutional safety or correctional goals,” 1 assistance at the hearing if he is illiterate or the matter is complex, and an impartial 2 factfinder. Wolff v. McDonnell, 418 U.S. 539, 564–71 (1974). 3 To the extent Plaintiff alleges he was falsely charged with a disciplinary infraction 4 he does not state a due process claim because “a prisoner does not have a constitutional 5 right to be free from wrongfully issued disciplinary reports.” Buckley v. Gomez, 36 F. 6 Supp. 2d 1216, 1222 (S.D. Cal. 1997); see also e.g. Gadsden v. Gehris, No. 20cv0470- 7 WQH (DEB), 2020 WL 5748094, at *8 (S.D. Cal. Sep. 25, 2020) (“The allegations of the 8 filing of false disciplinary charges by itself does not state a claim under 42 U.S.C. § 1983 9 because federal due process protections are contained in the ensuing disciplinary 10 proceedings themselves.”) To the extent Plaintiff claims he was denied due process during 11 disciplinary proceedings on any “write up,” there are no factual allegations as to whether 12 he was denied any procedural rights in connection to a disciplinary proceeding. Wolff, 418 13 U.S. at 564–71. Neither has Plaintiff identified an adverse action taken against him. See 14 Sandin, 515 U.S. at 480 (“The Due Process Clause standing alone confers no liberty interest 15 in freedom from state action taken within the sentence imposed.”) 16 Accordingly, Plaintiff’s Fourteenth Amendment due process and “loss of liberty” 17 claims are dismissed sua sponte pursuant to 28 U.S.C. § 1915A for failure to state a claim. 18 See Wilhelm, 680 F.3d at 1121; Iqbal, 556 U.S. at 679. 19 3) Racial Profiling 20 Plaintiff alleges the Defendants engaged in “racial profiling” but without any factual 21 allegations that any action was taken because of his race. (Doc. 1 at 3.) Conclusory 22 allegations of racial profiling “unsupported by any facts as to how race entered into any 23 decisions” are insufficient to give rise to a plausible § 1983 claim. Jones v. Cmty. 24 Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984); Iqbal, 556 U.S. at 678 25 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 26 statements, do not suffice.”) 27 To the extent Plaintiff intended to bring an equal protection claim, he must set forth 28 facts which plausibly allege intentional discrimination based on membership in a protected 1 class. Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013); 2 Maynard v. City of San Jose, 37 F.3d 1396, 1404 (9th Cir. 1994) (“Intentional 3 discrimination means that a defendant acted at least in part because of a plaintiff’s protected 4 status.”); Taylor v. Delatoore, 281 F.3d 844, 849 (9th Cir. 2002) (prisoners are not a 5 protected class for purposes of stating an equal protection claim). Because there are no 6 factual allegations in the Complaint which plausibly allege any Defendant acted out of 7 racial animus, Plaintiff has not stated a claim for racial profiling or equal protection. 8 Plaintiff’s racial profiling and equal protection claims are dismissed sua sponte 9 pursuant to 28 U.S.C. § 1915A for failure to state a claim. See Wilhelm, 680 F.3d at 1121; 10 Iqbal, 556 U.S. at 679. 11 4) Retaliation 12 Finally, Plaintiff claims the Defendants’ actions were “harassing, targeting and 13 profiling . . . turning into retaliation,” based at least in part on a grievance he filed against 14 Defendant Williams. (Doc. 1 at 3.) “Within the prison context, a viable claim of First 15 Amendment retaliation entails five basic elements: (1) An assertion that a state actor took 16 some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, 17 and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and 18 (5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v. 19 Robinson, 408 F.3d 559, 567–68 (2005) (footnote and citation omitted). Plaintiff must also 20 allege a retaliatory motive, that is, a causal connection between the adverse action and his 21 protected conduct. Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012). 22 Even assuming Plaintiff can allege an adverse action was taken against him in 23 connection to a disciplinary action, he has not plausibly alleged any Defendant took an 24 adverse action against him because of any protected conduct. Soranno’s Gasco, Inc. v. 25 Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989) (plaintiff must show that the protected 26 conduct was a “substantial” or “motivating” factor in the defendant’s decision to act); see 27 also Rhodes, 408 F.3d at 567–68. Although Plaintiff states he filed an inmate grievance 28 against Defendant Williams based on the incident where he was searched and found guilty 1 of possession of contraband, there are no factual allegations that any Defendant took any 2 adverse action against Plaintiff because of that grievance or that it was a substantial or 3 motivating factor in any decision by any Defendant. Soranno’s Gasco, Inc., 874 F.2d at 4 1314; see also Wood v. Yordy, 753 F.3d 899, 905 (9th Cir. 2014) (“We have repeatedly 5 held that mere speculation that defendants acted out of retaliation is not sufficient.”) 6 Plaintiff’s retaliation claim is dismissed sua sponte pursuant to 28 U.S.C. § 1915A 7 for failure to state a claim. See Wilhelm, 680 F.3d at 1121; Iqbal, 556 U.S. at 679. 8 C. Leave to Amend 9 In light of his pro se status, the Court grants Plaintiff leave to amend to attempt to 10 cure the pleading deficiencies identified in this Order. See Rosati v. Igbinoso, 791 F.3d 11 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro se complaint without 12 leave to amend unless ‘it is absolutely clear that the deficiencies of the complaint could not 13 be cured by amendment.’”) (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)). 14 II. Conclusion and Order 15 Good cause appearing, the Court DISMISSES Plaintiff’s Complaint pursuant to 28 16 U.S.C. § 1915A for failing to state a claim upon which relief may be granted and GRANTS 17 Plaintiff leave to file a First Amended Complaint which cures the deficiencies of pleading 18 noted by September 12, 2025. Plaintiff’s First Amended Complaint must be complete by 19 itself without reference to any prior version of his pleading, and any defendants not named 20 and any claims not re-alleged will be considered waived. See S.D. Cal. CivLR 15.1; Hal 21 Roach Studios, Inc., 896 F.2d at 1546 (“[A]n amended pleading supersedes the original.”); 22 Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed 23 with leave to amend which are not re-alleged in an amended pleading may be “considered 24 waived if not repled.”) 25 If Plaintiff fails to timely amend by September 12, 2025, the Court will enter a final 26 Order dismissing this civil action based both on Plaintiff’s failure to state a claim upon 27 which relief can be granted pursuant to 28 U.S.C. § 1915A and his failure to prosecute in 28 compliance with a court order requiring amendment. See Lira v. Herrera, 427 F.3d 1164, 1 |} 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity to fix his 2 || complaint, a district court may convert the dismissal of the complaint into dismissal of the 3 || entire action.”) 4 IT IS SO ORDERED. 5 || Dated: July 28, 2025 Fe Le ; ? L □ 6 HON. RUTH BERMUDEZ MONTENEGRO 7 UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 y.AA.-19£1 □□□□□□