Opinion
No. CIV S-05-1104 RRB DAD P.
November 2, 2007
ORDER
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Due to the court's inadvertence, plaintiff's complaint, which was filed on June 3, 2005, has never been screened. However, plaintiff has not filed any further documents or made inquiries regarding the status of his case since this action was filed thus suggesting that he may have elected not to pursue the matter. Therefore, the court will order plaintiff to inform the court as to whether he intends to proceed with this action. If plaintiff intends to proceed, he must file an amended complaint to cure deficiencies specified in this order. The court will defer ruling on plaintiff's application for leave to proceed in forma pauperis until plaintiff has responded to this order.
The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1) (2).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.
A claim should be dismissed for failure to state a claim upon which relief may be granted only if it appears beyond doubt that plaintiff can prove no set of facts in support of the claim that would entitle him to relief. Hishon v. King Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint. See Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976). The court must also construe the pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
Here, plaintiff contends that on April 15, 2005, his First, Eighth, and Fourteenth Amendment rights were violated when he was placed on lockdown status because his cell-mate was a suspected associate of a racial group involved in a prison riot on April 10, 2005. It appears that plaintiff is alleging that placing him on lockdown status violated his due process rights because he did not receive the warden's written approval for extending his cell confinement, was not charged with a rule violation and did not appear before the classification committee. In addition, it appears plaintiff complains that he was also placed on a restricted shower schedule as a result of being locked down. Next, plaintiff claims that on April 2, 2005, he was found guilty of an administrative rule violation for "attempt theft" which plaintiff argues is a "non-existent offense" under California Code of Regulations, title 15 § 3012 . (Compl. at 3.) Finally, plaintiff contends that he was denied due process in that he was not allowed to have a witness at the hearing and was not provided the assistance of a staff member.
15 CCR § 3012 provides: "inmates may not obtain anything by theft, fraud or dishonesty."
Plaintiff is advised that it appears that his due process claim is not cognizable. Although prisoners may not be deprived of life, liberty, or property without due process of law, plaintiff must establish that he has a protected liberty interest. Sandin v. Conner, 515 U.S. 472, 481-84 (1995). The existence of a liberty interest is determined by focusing on the nature of the deprivation. Id. Liberty interests created by prison regulations are limited to freedom from restraint which "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 484. Generally, lockdowns have not been found to impose atypical or significant hardship on inmates and are insufficient to trigger the procedural due process protections set forth in Wolff v. McDonnell, 418 U.S. 539, 556 (1974). See Hayward v. Procunier, 629 F.2d 599, 601 (9th Cir. 1980) (holding that there is no procedural due process right to a hearing prior to the imposition of a lockdown to determine if the heightened security was justified); Hunt v. McKay, No. CIV S-04-0435 LKK JFM P, 2007 WL 642938, *5 (E.D. Cal. March 2, 2007) (concluding that a 12 day lockdown was not a dramatic departure from basic conditions as contemplated by Sandin). Here, plaintiff's restricted shower schedule which was implemented because of the lockdown, is not the type of atypical and significant hardship which would trigger the right to procedural safeguards. Moreover, in light of the riot referred to by plaintiff in his complaint, prison administrators were entitled to confine inmates under greater security pending an investigation of the matter. See Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987).
In Hayward v. Procunier, 629 F.2d 599, 600 n. 1 (9th Cir. 1980), the court defined "lockdown" as "a condition of abnormally heightened security during which prisoners are confined to their cells totally or for a much greater portion of the day than usual."
As to plaintiff's due process claim concerning the administrative rule violation charge, the court finds that this also fails to state a cognizable claim. Under California Code of Regulations, title 15 § 3314(a)(3)(A), an administrative rule violation includes, but is not limited to "[t]heft . . . or unauthorized acquisition or exchange of personal or state property valued at $50 or less." Thus, plaintiff's argument that he was charged with a non-existent rule violation, lacks merit. In addition, the regulation states that "[t]he inmate does not have the right to call witnesses or to have an investigative employee assigned." Cal. Code of Regs. tit. 15, § 3314(c). Unlike a disciplinary hearing for a serious rule violation, an administrative violation is misconduct that does not constitute a misdemeanor offense (Cal. Code of Regs. tit. 15, § 3314), the punishment for which includes suspension of privileges for no more than thirty days (id.), and administrative rule violations are not considered in determining an inmate's suitability for parole (id. at § 2281). See Tunstall v. Yentes, No. CIV S-05-0280 LKK CMK P, 2007 WL 587231, *2-3 (E.D. Cal. Feb. 26, 2007).
It is possible that plaintiff may be able to clarify his allegations and state cognizable claims in an amended complaint. If plaintiff wishes to proceed with this action, he must also clarify his First and Eighth Amendments claims and must allege with at least some degree of particularity the overt acts which each defendant engaged in that support his claims. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant's actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Moreover, supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations concerning the involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
Plaintiff is informed that the court cannot refer to a prior pleading in order to make plaintiff's amended complaint complete. Local Rule 15-220 requires that an amended complaint be complete in itself without reference to any prior pleading. This is because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged.
Accordingly, IT IS HEREBY ORDERED that:
1. Within thirty days from the date of this order, plaintiff shall file a notice informing the court if he intends to proceed with this action or whether he requests the voluntary dismissal of this action.
2. Plaintiff's complaint is dismissed.
3. Should plaintiff decide to proceed with this action, he is granted thirty days from the date of service of this order to file an amended complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number assigned to this case and must be labeled "Amended Complaint"; plaintiff must use the form complaint provided by the court.
4. Plaintiff's failure to file a notice in response to this order or an amended complaint in accordance with this order, will result in a recommendation that this action be dismissed without prejudice.
5. The Clerk of the Court is directed to provide plaintiff with a copy of the court's form complaint for a § 1983 action.