Hanzy v. Riley

Full title: DWIGHT HANZY, Plaintiff, v. RILEY, et al., Defendants

Court: United States District Court, D. Nevada

Date published: Jul 23, 2010

Case No. 2:08-cv-1672-JCM-RJJ (D. Nev. Jul. 23, 2010)

Opinion

Case No. 2:08-cv-1672-JCM-RJJ.

July 23, 2010

ORDER

JAMES MAHAN, District Judge

Presently before the court is defendants' motion to dismiss (Doc. #33). Plaintiff filed an opposition (Doc. # 36) and defendants filed a reply (Doc. # 43).

Plaintiff filed this matter on June 26, 2009 (Doc. #8). This court dismissed plaintiff's second claim which alleged a violation of his Sixth Amendment rights, by order on June 26, 2009 (Doc. #7). Plaintiff was allowed to proceed against defendants on claims one and three.

A dismissal based on Fed.R.Civ.P 12(b)(6) can be based on either a failure to allege a cognizable legal theory or the failure to allege sufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9^th Cir. 1990). In reviewing a motion to dismiss pursuant to Fed.R.Civ.P 12(b)(6), the court examines whether a complaint "contains sufficient factual matter, accepted as true, `to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 173 L.Ed 2d 868, 7. Fed.R. Serv. 3d 837 (2009).

In order to be liable under § 1983, the individual defendant must have personally participated, in some manner, in the underlying conduct that gave rise to the alleged constitutional violation. Jones v. Williams, 297 F.3d 930, 934 (9^th Cir. 2002). Claim one of plaintiff's complaint alleges that he was placed in administrative segregation by James Riley for filing a grievance against James Riley. James Riley is not represented by the attorney general's office because he no longer works for the Nevada Department of Corrections ("NDOC"). Service was accepted for correctional officer Karl Riley, but he is not the "Riley" plaintiff alleges against. Further, the other defendants are not named or discussed in the complaint.

Accordingly, claim one must be dismissed against all represented defendants based on a lack of personal participation. Furthermore, plaintiff has failed to serve the only defendant with personal participation, James Riley, and as such, claim one is dismissed for failure to serve with respect to James Riley.

Claim three alleges that plaintiff's Fourteenth Amendment rights were violated when he was terminated from his prison laundry position. Prisoners have no constitutional right to a prison job or educational opportunities. Rizzo v. Dawson, 778 F.2d 527 (9^th Cir. 1985). Plaintiff has not produced any state law which creates a right to prison employment. Thus, because plaintiff does not have a constitutional, or state right to a job while in prison, his claim that defendants deprived him of his rights by terminating his involvement a prison work program fails. Claim three fails to state a claim for which relief may be granted.

Accordingly, plaintiff's complaint shall be dismissed in its entirety because claim two was previously dismissed in a screening order (Doc. #7).

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that defendants' motion to dismiss (Doc #33) be, and the same hereby is GRANTED.