Opinion
No. C 03-807 TEH (pr)
September 16, 2003
ORDER OF DISMISSAL
Jerry Lee Verwolf, Jr., an inmate currently housed at the state prison in Corcoran, California, filed this pro se civil rights action under 42 U.S.C. § 1983. The court reviewed Verwolf s original complaint pursuant to 28 U.S.C. § 191 5A and dismissed it with leave to amend to cure various deficiencies identified by the court. Verwolf s amended complaint is now before the court for review pursuant to 28 U.S.C. § 1915A.
A federal court must engage in a preliminary screening of any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The court must identify any cognizable claims, and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1),(2).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
In dismissing the original complaint with leave to amend, the court explained that the complaint did not provide enough information for the court to determine whether any of Verwolf s constitutional rights may have been violated and whether any particular defendant may have violated his constitutional rights. The court also noted that the mere validation of a prisoner as a prison gang associate — the topic of the complaint — was not a constitutional violation. The court directed Verwolf to file an amended complaint that set forth a short and plain statement of the claim showing he was entitled to relief, suggesting that "[f]or each instance of a constitutional violation, Verwolf should name each person who violated his constitutional right(s), describe what each person did to violate his right(s), state where the violation occurred, and state when the violation occurred. Verwolf must bear in mind that a defendant has no liability simply by virtue of any supervisorial role at the prison." April 3, 2003 Order Of Dismissal With Leave To Amend.
In his amended complaint, Verwolf alleges that in July 1999, he was interviewed and pictures were taken of him and his photo album by prison staff. After several transfers, in August 2001, he was transferred to the Correctional Training Facility ("CTF") in Soledad because of a family hardship. At his initial institutional classification, a committee member said she would check into him staying at the facility based on previous problems with Verwolf. In December 2001, Verwolf was placed in ad-seg due to his alleged validation as a prison gang associate. See Amend. Compl., p. 3. Verwolf states he had an ICC hearing at which a committee member photographed his chest. Id at 4. Verwolf filed an inmate appeal (CDC 602), apparently to to investigate the evidence used to validate him.
Verwolf apparently contends that the defendants used improper evidence against him to validate him as a prison gang associate. He states that defendant Moreno claimed that the photo taken in December 2001 of Verwolfs chest "is new evidence which is the `same' tattoo of picture tooken [sic] by defendant Chavez and Moreno." Id. at 4. Verwolf alleges that proof of pictures were taken of plaintiff or the alleged drawing strictly shows the report of C/O Chavez's 128-G is fabricated." Id. Elsewhere, Verwolf alleges that he had the tattoo on his chest since 1992. Id. at 5. Several staff members told Verwolf that what other "staff was doing is wrong", id., but one cannot discern from the complaint the wrongdoing to which Verwolf refers.
The two paragraphs above are not a poor summary of a well-written complaint, but instead reflect the fact that Verwolf failed to describe many events in an understandable way which leaves the reader guessing what he means. The amended complaint does not state a claim for relief for a constitutional violation and does not cure the deficiencies addressed in the Order Of Dismissal With Leave To Amend. Further leave to amend will not be granted because the court has already explained to Verwolf what he needed to do and he failed to do it in his amended complaint.
The court will discuss those claims that it can discern from Verwolf s wordy yet uninformative amended complaint. First, Verwolf appears to allege and the exhibits attached to the amended complaint appear to show that his main grievance is that prison staff did not have the necessary three pieces of evidence to validate him as a gang associate because prison staff improperly counted as two pieces of evidence rather than as one piece of evidence a drawing of a "huelga bird" on a photograph of a collage in a photo album and a photograph of a "huelga bird" tattoo on his chest. See Amend. Compl., Exh. C. The "huelga bird" is the logo used by the Northern Structure prison gang, according to the prison staff member who wrote the memo about the collage. See Amend. Compl., Exh. A. Although the CDC's regulations may require that three pieces of evidence support a gang validation decision, due process requires only that there be "some evidence" in the record to support the findings of a prison board's decision to place an inmate in segregation for administrative reasons such as gang affiliation. See Superintendent v. Hill, 472 U.S. 445, 455 (1985); Toussaint v. McCarthy, 801 F.2d 1080, 1105 (9th Cir. 1986),cert. denied, 481 U.S. 1069 (1987). Verwolf s complaint that two of the pieces of evidence should only have counted as one piece of evidence does not state a claim for a due process violation because it admits that there was some evidence to support the decision in the form of a tattoo on his chest of a huelga bird, even if it had been on his chest for about a decade. Due process requires only that there be some evidence to support the decision, not that there be a particular number of pieces of evidence to support the decision.
Second, Verwolf appears to allege that a staff member fabricated a report against him. A prisoner has no constitutionally guaranteed immunity from being falsely or wrongly accused of conduct which may result in the deprivation of a protected liberty interest. See Freeman v. Rideout 808 F.2d 949, 951 (2d Cir. 1986), cert. denied, 485 U.S. 982 (1988). As long as a prisoner is afforded procedural due process in the disciplinary hearing, allegations of a fabricated charge fail to state a claim under § 1983. See id. at 951-53; Hanrahan v. Lane, 747 F.2d 1137, 1140-41 (7th Cir. 1984). Verwolf s allegation that a staff member fabricated a false report against him does not state a claim for relief because he has not shown he was not afforded procedural due process in the administrative hearing. His complaint and exhibits appear to show that he was not denied the procedural protections required by the federal due process guarantee: his complaint and exhibits thereto show there was some evidence to support the decision (as discussed in the preceding paragraph), his complaint alleges that a hearing was held, his complaint does not allege he was not informed of the charges against him, and his complaint does not allege that he was not allowed to present his views.See Toussaint 801 F.2d at 1100. The federal right to due process did not require the prison to comply with its own more generous procedural protections.
Third, Verwolf appears to allege that his right to due process was violated when prison officials refused to house him near his ill brother and refused to allow him temporary community leave to attend his brother's funeral. Neither allegation shows a constitutional violation. Prisoners have no constitutional right to incarceration in a particular institution. See Meachum v. Fano, 427 U.S. 215, 224 (1976). A prisoner's liberty interests are sufficiently extinguished by his conviction that the state may generally confine or transfer him to any of its institutions, to prisons in another state or to federal prisons, without offending the Constitution. See Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir. 1985) (citing Meachum, 427 U.S. at 225) (intrastate prison transfer does not implicate Due Process Clause), and Olim v. Wakinekona, 461 U.S. 238, 244-48 (1983) (interstate prison transfer does not implicate Due Process Clause)). And California has not created a protected liberty interest in housing at any particular facility (or temporary release to the community): there are no substantive limitations on prison officials' discretion to grant or refuse the transfer of prisoners. See Cal. Penal Code § 5080; Cal. Code Regs. tit. 15, § 3379. There was no due process violation in the transfer or refusal to transfer Verwolf.
Fourth, Verwolf appears to contend that his constitutional rights were violated because the prison's administrative appeal process did not work properly. Interests protected by the Due Process Clause may arise from two sources — the Due Process Clause itself and laws of the states. See Meachum v. Fano, 427 U.S. 215. 223-27 (1976). There is no constitutional right to a prison administrative appeal or grievance system. See Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996). The state of California has not created a protected interest in an administrative appeal system in prison. California Code of Regulations, title 15 sections 1073 and 3084 grant prisoners in the county jails and state prisons a purely procedural right: the right to have a prison appeal. The regulations simply require the establishment of a procedural structure for reviewing prisoner complaints and set forth no substantive standards; instead, they provide for flexible appeal time limits, see Cal. Code Regs. tit. 15, § 3084.6, and, at most, that "no reprisal shall be taken against an inmate or parolee for filing an appeal," id. § 3084. l(d). A provision that merely provides procedural requirements, even if mandatory, cannot form the basis of a constitutionally cognizable liberty interest. See Smith v. Noonan, 992 F.2d 987, 989 (9th Cir. 1993); see also Antonelli, 81 F.3d at 1430 (prison grievance procedure is procedural right that does not give rise to protected liberty interest requiring procedural protections of Due Process Clause). Verwolf had no federal constitutional right to a properly functioning appeal system. An incorrect decision on an administrative appeal therefore did not amount to a violation of his right to due process.
For the foregoing reasons, Verwolf's amended complaint fails to state a claim for relief and is DISMISSED without leave to amend. This dismissal is without prejudice to Verwolf filing an action in state court in which he alleges claims for state law violations. The clerk shall close the file.
IT IS SO ORDERED.