1 2 3 4 5 8 9 DELMAR JEWELL DIXON, JR., No. 2:19-cv-1966-EFB P 10 Plaintiff, 11 v. ORDER 12 JOE LIZARRAGA, et al., 13 Defendants. 14 15 Plaintiff is a state prisoner proceeding without counsel in this action brought pursuant to 16 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 17 U.S.C. § 636(b)(1). The court screened the amended complaint on April 28, 2020 and found that 18 plaintiff had failed to state a cognizable claim against any defendant. ECF No. 15. The court 19 provided plaintiff with an opportunity to file a second amended complaint, which he has done. 20 ECF No. 18. 21 I. Screening Requirement and Standards 22 Federal courts must engage in a preliminary screening of cases in which prisoners seek 23 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 24 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 25 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 26 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 27 relief.” Id. § 1915A(b). 28 ///// 1 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 2 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 3 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 4 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 5 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 6 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 7 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 8 U.S. 662, 679 (2009). 9 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 10 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 11 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 12 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 13 678. 14 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 15 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 16 content that allows the court to draw the reasonable inference that the defendant is liable for the 17 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 18 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 19 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 20 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 21 II. Plaintiff’s Allegations 22 Plaintiff names seven defendants who were allegedly involved in the violation of his 23 rights through the creation and use of a document (or documents) falsely accusing him of 24 smuggling drugs into Mule Creek State Prison (“MCSP”): (1) then-Warden Joe Lizarraga, (2) 25 Investigative Services Unit Officer Daniel Navarro, (3) Investigative Services Unit Officer 26 Palomares, (4) Facility A Captain C. Heintschel, (5) Correctional Counselor G. McCarthy, (6) 27 Investigative Services Unit Officer K. Staley, and (7) Appeals Examiner R. Briggs. 28 ///// 1 The complaint presents facts in a disorganized, nonlinear fashion. The court can piece 2 together, however, that plaintiff’s claims center around his discipline and prosecution for 3 conspiracy to introduce controlled substances into MCSP in mid-2018. According to plaintiff, in 4 July 2018, defendant Lizarraga authorized MCSP Investigative Services Unit officers to 5 investigate plaintiff for “conspiracy to introduce controlled substances into the institution for 6 purposes of distribution.” On August 11, 2018, plaintiff’s visitor was discovered to have bindles 7 of controlled substances. The same day, defendant K. Staley submitted felony charges against 8 plaintiff to the Amador County District Attorney’s Office. Staley wrote, presumably in the 9 charging document or some other report, that plaintiff’s visitor had told prison staff, “I’m just 10 going to let you know right now that I do have something . . . I don’t know what it is, but I do 11 have something.” She then turned over two blue bindles to defendant Daniel Navarro. Staley 12 received a notice from the District Attorney that it had accepted the charges at the end of August, 13 but did not notify plaintiff of this fact. 14 Plaintiff accuses defendants of basing their decisions on false information, but is not clear 15 what precisely plaintiff alleges to have been false. He accuses defendant Navarro of creating a 16 report on August 11, 2018 which indicated that prison authorities had confiscated “two bindles of 17 suspected controlled substances” rather than “one bindle containing two smaller bindles.” 18 Plaintiff does not specify whether the information about contraband was entirely false or whether 19 only the number of bindles was false. 20 Plaintiff acknowledges that he was issued a notice of placement in administrative 21 segregation, authored by defendant Palomares on August 11, 2018. Plaintiff claims that 22 Palomares knowingly placed the false information in that document. Plaintiff also alleges that 23 defendant C. Heintschel “signed and produced a false document containing false information used 24 to remove this plaintiff from General Population on August 11, 2018.” It is not clear whether 25 Heintschel prepared a separate document or signed the document prepared by Palomares. 26 As a result of the charges against plaintiff, defendant D. Stephens held a classification 27 committee meeting regarding plaintiff’s removal from general population on August 16, 2018. 28 ///// 1 Plaintiff accuses Stephens of “recording false information” – the same information about the 2 bindles of controlled substance – in the documents memorializing the committee meeting. 3 Plaintiff claims that Staley knew that information in an August 16, 2018 housing 4 classification document presumably prepared by the committee – that plaintiff’s visitor was found 5 in possession of one bindle containing two smaller bindles” of contraband – was false but she 6 nevertheless signed the document. Staley also knew that the false information was being used to 7 keep plaintiff in segregated housing. 8 Defendant G. McCarthy reviewed an appeal apparently filed by plaintiff with regard to the 9 contraband incident at the first level of review on December 28, 2018. In doing so, McCarthy 10 relied on the “false” information that plaintiff’s visitor was searched and one bindle containing 11 two smaller bindles of suspected controlled substances was found. 12 Defendant R. Briggs reviewed the appeal at the third level of review. Plaintiff’s 13 allegations against Briggs are unclear because he does not provide certain background facts.
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1 2 3 4 5 8 9 DELMAR JEWELL DIXON, JR., No. 2:19-cv-1966-EFB P 10 Plaintiff, 11 v. ORDER 12 JOE LIZARRAGA, et al., 13 Defendants. 14 15 Plaintiff is a state prisoner proceeding without counsel in this action brought pursuant to 16 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 17 U.S.C. § 636(b)(1). The court screened the amended complaint on April 28, 2020 and found that 18 plaintiff had failed to state a cognizable claim against any defendant. ECF No. 15. The court 19 provided plaintiff with an opportunity to file a second amended complaint, which he has done. 20 ECF No. 18. 21 I. Screening Requirement and Standards 22 Federal courts must engage in a preliminary screening of cases in which prisoners seek 23 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 24 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 25 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 26 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 27 relief.” Id. § 1915A(b). 28 ///// 1 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 2 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 3 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 4 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 5 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 6 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 7 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 8 U.S. 662, 679 (2009). 9 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 10 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 11 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 12 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 13 678. 14 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 15 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 16 content that allows the court to draw the reasonable inference that the defendant is liable for the 17 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 18 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 19 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 20 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 21 II. Plaintiff’s Allegations 22 Plaintiff names seven defendants who were allegedly involved in the violation of his 23 rights through the creation and use of a document (or documents) falsely accusing him of 24 smuggling drugs into Mule Creek State Prison (“MCSP”): (1) then-Warden Joe Lizarraga, (2) 25 Investigative Services Unit Officer Daniel Navarro, (3) Investigative Services Unit Officer 26 Palomares, (4) Facility A Captain C. Heintschel, (5) Correctional Counselor G. McCarthy, (6) 27 Investigative Services Unit Officer K. Staley, and (7) Appeals Examiner R. Briggs. 28 ///// 1 The complaint presents facts in a disorganized, nonlinear fashion. The court can piece 2 together, however, that plaintiff’s claims center around his discipline and prosecution for 3 conspiracy to introduce controlled substances into MCSP in mid-2018. According to plaintiff, in 4 July 2018, defendant Lizarraga authorized MCSP Investigative Services Unit officers to 5 investigate plaintiff for “conspiracy to introduce controlled substances into the institution for 6 purposes of distribution.” On August 11, 2018, plaintiff’s visitor was discovered to have bindles 7 of controlled substances. The same day, defendant K. Staley submitted felony charges against 8 plaintiff to the Amador County District Attorney’s Office. Staley wrote, presumably in the 9 charging document or some other report, that plaintiff’s visitor had told prison staff, “I’m just 10 going to let you know right now that I do have something . . . I don’t know what it is, but I do 11 have something.” She then turned over two blue bindles to defendant Daniel Navarro. Staley 12 received a notice from the District Attorney that it had accepted the charges at the end of August, 13 but did not notify plaintiff of this fact. 14 Plaintiff accuses defendants of basing their decisions on false information, but is not clear 15 what precisely plaintiff alleges to have been false. He accuses defendant Navarro of creating a 16 report on August 11, 2018 which indicated that prison authorities had confiscated “two bindles of 17 suspected controlled substances” rather than “one bindle containing two smaller bindles.” 18 Plaintiff does not specify whether the information about contraband was entirely false or whether 19 only the number of bindles was false. 20 Plaintiff acknowledges that he was issued a notice of placement in administrative 21 segregation, authored by defendant Palomares on August 11, 2018. Plaintiff claims that 22 Palomares knowingly placed the false information in that document. Plaintiff also alleges that 23 defendant C. Heintschel “signed and produced a false document containing false information used 24 to remove this plaintiff from General Population on August 11, 2018.” It is not clear whether 25 Heintschel prepared a separate document or signed the document prepared by Palomares. 26 As a result of the charges against plaintiff, defendant D. Stephens held a classification 27 committee meeting regarding plaintiff’s removal from general population on August 16, 2018. 28 ///// 1 Plaintiff accuses Stephens of “recording false information” – the same information about the 2 bindles of controlled substance – in the documents memorializing the committee meeting. 3 Plaintiff claims that Staley knew that information in an August 16, 2018 housing 4 classification document presumably prepared by the committee – that plaintiff’s visitor was found 5 in possession of one bindle containing two smaller bindles” of contraband – was false but she 6 nevertheless signed the document. Staley also knew that the false information was being used to 7 keep plaintiff in segregated housing. 8 Defendant G. McCarthy reviewed an appeal apparently filed by plaintiff with regard to the 9 contraband incident at the first level of review on December 28, 2018. In doing so, McCarthy 10 relied on the “false” information that plaintiff’s visitor was searched and one bindle containing 11 two smaller bindles of suspected controlled substances was found. 12 Defendant R. Briggs reviewed the appeal at the third level of review. Plaintiff’s 13 allegations against Briggs are unclear because he does not provide certain background facts. For 14 example, he claims that Briggs violated his constitutional rights because he “cannot dispute any 15 facts that disproves a narcotic field test, NIK test is not enough to issue” an RVR, but he does not 16 explain what a narcotic field test or NIK test are or how they are relevant to the case. 17 Plaintiff alleges that, on January 3, 2019, Lizarraga “was a party to the production of false 18 documentary evidence used to keep the plaintiff retained in Administrative Segregation.” 19 Plaintiff states that Lizarraga “allowed Criminal charges to be charged against plaintiff without a 20 Rules Violation Report (RVR 115) being issued detailing any crime committed by the plaintiff” 21 as CDCR policy required. But plaintiff later states that defendant Navarro wrote in a January 24, 22 2019 RVR that plaintiff and his visitor had been involved in a conspiracy to distribute controlled 23 substances at the prison. (Apparently, prison officials told plaintiff that there was a delay 24 between the incident and the issuance of the RVR because they were waiting for a toxicology 25 report.) Navarro provided his subordinate, defendant Palomares, the false information to justify 26 plaintiff’s retention in administrative segregation. 27 ///// 28 ///// 1 Plaintiff states that he was “assessed a SHU term, lost credit, transferred, and [assessed a] 2 loss of visits for 3 years.” Plaintiff provides no further information concerning his criminal 3 prosecution. 4 III. Analysis 5 From what the court can tell, plaintiff believes that defendants violated his rights under the 6 U.S. Constitution by (1) using false information to place him in administrative segregation, assess 7 him a SHU term, loss of visits, and loss of unspecified credits, and (2) failing to provide him with 8 Miranda warnings, an RVR, or counsel before assessing him a SHU term. Plaintiff also alleges 9 that defendants violated a number of California Penal Code sections and state prison regulations. 10 These claims fail as currently articulated for the reasons that follow. 11 Plaintiff’s claims that defendants violated provisions in the Penal Code and prison 12 regulations fail. “Section 1983 does not provide a cause of action for alleged violations of state 13 law.” Pototsky v. Napolitano, 210 F. App’x 637, 637 (9th Cir. 2006), see also Lovell by & 14 Through Lovell v. Poway Unified Sch. Dist., 90 F.3d 367, 370 (9th Cir. 1996) (“To the extent that 15 the violation of a state law amounts to the deprivation of a state-created interest that reaches 16 beyond that guaranteed by the federal Constitution, section 1983 offers no redress.”). 17 Plaintiff’s claim that prison officials did not provide counsel before he was assessed a 18 SHU term also fails. Prisoners are not entitled to counsel in prison disciplinary proceedings. 19 Wolff v. McDonnell, 418 U.S. 539, 570 (1974). 20 Plaintiff’s claim that prison officials did not provide him with Miranda warnings prior to 21 assessing him a SHU term fails because there is no action for damages under § 1983 for failure to 22 provide such warnings. Chavez v. Martinez, 538 U.S. 760, 772 (2003). 23 Plaintiff’s claims that he was not provided an RVR before he was assessed a SHU term 24 and that defendants disciplined him based on false information fail because plaintiff has not 25 alleged facts that show that the discipline, including the SHU term, presented an atypical and 26 significant hardship in relation to the ordinary incidents of prison life. Smith v. King, No. Civ S- 27 04-0702 MCE EFB P, 2007 U.S. Dist. LEXIS 7702, at *8-9 (E.D. Cal. Feb. 2, 2007). The 28 constitutional guarantee of due process prior to government action applies to interests 1 encompassed by the Fourteenth Amendment’s protection of liberty and property. Bd. of Regents 2 v. Roth, 408 U.S. 564, 569 (1972)). In Sandin v. Conner, the Supreme Court held that a prisoner 3 possesses a liberty interest under the federal Constitution when a change occurs in confinement 4 that imposes an “atypical and significant hardship . . . in relation to the ordinary incidents of 5 prison life.” 515 U.S. 472, 484 (1995). Sandin requires a factual comparison between the 6 conditions of the prisoner’s confinement prior to the discipline with the disciplinary conditions. 7 Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003). Plaintiff has not provided any facts from 8 which the court can make this comparison. 9 In addition, it appears from the complaint that plaintiff was potentially assessed a 10 forfeiture of good conduct credits in connection with his discipline for conspiracy to bring 11 contraband into the prison. To the extent that success on any claim plaintiff wishes to pursue 12 would necessarily imply the invalidity of the discipline (and thus necessitate the restoration of 13 forfeited time credits), such claim is barred by the rule of Heck v. Humphrey unless plaintiff can 14 demonstrate that the discipline has been invalidated through another proceeding (for example, the 15 granting of a habeas petition). 512 U.S. 477, 486-87 (1994). 16 For the reasons stated above, plaintiff has failed to plead a cognizable claim against any 17 defendant. The court will provide plaintiff with one final opportunity to amend the complaint to 18 attempt to state a cognizable claim. Plaintiff was admonished in the court’s prior screening order 19 that his complaint was too vague and conclusory. ECF No. 15 at 2. The court faulted plaintiff for 20 failing to explicitly state what charges were brought against him, where he was tried for the 21 charges, whether he was convicted, and, if so, what his punishment was. Id. While plaintiff has 22 included some additional facts in the second amended complaint, it is still difficult to understand 23 the narrative of what happened and what each defendant did (rather than plaintiff’s conclusions 24 about defendants’ legal violations). Plaintiff is advised to attempt a coherent and linear recitation 25 of the facts that underly his claims (that is, who did what and when they did it), rather than stating 26 legal conclusions. 27 ///// 28 ///// 1 He is cautioned that any amended complaint must identify as a defendant only persons 2 who personally participated in a substantial way in depriving him of his constitutional rights. 3 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation 4 of a constitutional right if he does an act, participates in another’s act or omits to perform an act 5 he is legally required to do that causes the alleged deprivation). Plaintiff may also include any 6 allegations based on state law that are so closely to his federal allegations that “the form the same 7 case or controversy.” See 28 U.S.C. § 1367(a). 8 The amended complaint must also contain a caption including the names of all defendants. 9 Fed. R. Civ. P. 10(a). 10 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See 11 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Nor may he bring multiple, unrelated claims 12 against more than one defendant. Id. 13 Any amended complaint must be written or typed so that it is complete in itself without 14 reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 15 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 16 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 17 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 18 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 19 1967)). 20 Any amended complaint should be as concise as possible in fulfilling the above 21 requirements. Fed. R. Civ. P. 8(a). 22 IV. Order 23 Accordingly, it is ORDERED that the complaint is dismissed with leave to file an 24 amended complaint within 30 days from the date of service of this order. The amended complaint 25 must bear the docket number assigned to this case and be titled “Third Amended Complaint.” 26 Failure to comply with this order may result in a recommendation that this action be dismissed for 27 ///// 28 ///// 2:4 UV VELVET BP MMVUUETIOCIN ey PIR Ore tre PF VU VIO
1 | failure to state a claim and/or failure to prosecute. If plaintiff files an amended complaint stating 2 | acognizable claim the court will proceed with service of process by the United States Marshal. 3 | DATED: August 27, 2020. 4 Data = ZELMA UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28