NEFF v. BROOKS

Full title: JOHN NEFF, Plaintiff, v. DEBRA BROOKS, et al., Defendants

Court: United States District Court, D. Nevada

Date published: Oct 26, 2010

3:10-cv-0205-ECR-RAM (D. Nev. Oct. 26, 2010)

Opinion

3:10-cv-0205-ECR-RAM.

October 26, 2010

ORDER

EDWARD REED, District Judge

Before the Court are Defendants' Petition for Removal (Docket #1) and Plaintiff's Pro Se Civil Rights Complaint (Docket #1, Exhibit A). The complaint is subject to review by the court prior to proceeding.

I. Removal of this Action was Proper

II. Screening of the Complaint

pro se28 U.S.C. § 133128 U.S.C. § 1441 28 U.S.C. § 1915A 28 U.S.C. § 1915A 28 U.S.C. § 1915ABalistreri v. Pacifica Police Dep't, 901 F.2d 696699^th 42 U.S.C. § 1983See West v. Atkins, 487 U.S. 4248

In addition to the screening requirements under § 1915A, a federal court must dismiss a prisoner's claims, "if the allegation of poverty is untrue," or if the action "is frivolous or malicious," "fails to state a claim on which relief may be granted," or "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2); 42 U.S.C. § 1997e(c)(1), (2). Dismissal of a complaint for failure to state a claim upon which relief may be granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and the Court applies the same standard when reviewing the adequacy of a complaint or amended complaint.

Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Laboratory Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). In making this determination, the Court takes as true all allegations of material fact stated in the complaint, and the Court construes them in the light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). Allegations in a pro se complaint are held to less stringent standards than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520-21 (1972) ( per curiam).

In the instant complaint, plaintiff alleges he has been charged and disciplined for a major disciplinary violation related to gang activity and that the charges were not brought by the Associate Warden of Operations, Ms. Brooks, in violation of the prison regulations, violating his right to due process guaranteed by the Fourteenth Amendment. He contends Debra Brooks, as the Associate Warden of Operations, charged with overseeing the disciplinary processes within the prison is responsible for this civil rights violation. He further contends that because the prison regulations governing the disciplinary charges at issue here limit the officials' discretion, he is entitled to relief.¹

1 Plaintiff cites to Walker v. Sumner, 14 Fed 1415 (9^th Cir. 1994) to support this contention. However, Walker is no longer good law following Sandin v. Connor, 515 U.S. 472 (1995).

The Supreme Court has held that although "a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime," Wolff v. McDonnell, 418 U.S. 539, 555 (1974), his interest in due process "must be accommodated in the distinctive setting" and "legitimate institutional needs" of a prison, Superintendent v. Hill, 472 U.S. 445, 454-55 (1984). Procedures that must be provided to prisoners in disciplinary matters if the minimum requirements of procedural due process are to be satisfied include: advance written notice of the claimed violation and a written statement of the factfinders as to the evidence relied upon and the reasons for the disciplinary action taken. Wolff v. McDonnell, 418 U.S. 539, 563 (1974).

Plaintiff has failed to demonstrate that he was denied due process having made no allegations that he was denied prior notice or a written statement of the evidence relied upon or that he did not know the reason for the disciplinary action. Moreover, the United States Supreme Court has held that prison officials are entitled to deference and flexibility in managing the prison environment. Thus, officials cannot be held to have violated the fourteenth amendment on the basis of a departure from the strict interpretation of their own internal regulations. The complaint shall be dismissed.

IT IS THEREFORE ORDERED that the Clerk shall file the complaint which is DISMISSED WITH PREJUDICE.

The Clerk shall enter judgment accordingly.

DATED this 25th day of October, 2010.