(PC) Cross v. Covello

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA QUINTIN R. CROSS, No. 2:23-cv-0336 CKD P 12 Plaintiff, 13 v. ORDER PATRICK COVELLO, et al., 15 Defendants.

17 Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. § 18 1983. On March 2, 2023, the court recommended that plaintiff’s motion for leave to proceed in forma pauperis be denied. Plaintiff has now paid the filing fee. Accordingly, the court will vacate the court’s March 2, 2023, findings and recommendations and plaintiff’s motion for leave to proceed in forma pauperis will be denied as moot.

22 Plaintiff seeks relief against employees of the California Department of Corrections under 42 U.SC. § 1983. The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 25 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. 28 U.S.C. § 1915A(b)(1),(2).

1 A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

2 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.

8 In order to avoid dismissal for failure to state a claim a complaint must contain more than “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 16 at 678. When considering whether a complaint states a claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 19 U.S. 232, 236 (1974).

20 The court has reviewed plaintiff’s complaint and finds that it fails to state a claim upon which relief can be granted. Therefore, the complaint must be dismissed. Good cause appearing, however, the court will grant plaintiff leave to amend.

23 If plaintiff chooses to amend, he should consider the following: 24 1. Plaintiff’s allegations against defendants are too vague, for the most part. In an amended complaint, plaintiff must allege in specific terms how each named defendant is involved. 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 28 U.S. 362 (1976). Furthermore, 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), and there is no respondeat superior liability, Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

3 2. Prison officials generally cannot retaliate against inmates for exercising First Amendment rights. Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985). Because a prisoner’s First Amendment rights are necessarily curtailed, however, a successful retaliation claim requires a finding that “the prison authorities’ retaliatory action did not advance legitimate goals of the correctional institution or was not tailored narrowly enough to achieve such goals.” Id. at 532.

8 The plaintiff bears the burden of pleading and proving the absence of legitimate correctional goals for the conduct of which he complains. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995).

10 Also, in order to state a claim for retaliation, plaintiff must point to facts indicating a causal connection between the adverse action and the protected conduct. Watison v. Carter, 668 F.3d 12 1108, 1114 (9th Cir. 2012).

13 3. The United States Supreme Court has held that “an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984).

17 Thus, where the state provides a meaningful postdeprivation remedy, as California does, only authorized, intentional deprivations constitute actionable violations of the Due Process Clause.

19 An authorized deprivation is one carried out pursuant to established state procedures, regulations, or statutes. Piatt v. McDougall, 773 F.2d 1032, 1036 (9th Cir. 1985); see also Knudson v. City of Ellensburg, 832 F.2d 1142, 1149 (9th Cir. 1987).

22 4. Plaintiff complains about past conditions of confinement. Plaintiff can state a claim under the Eighth Amendment concerning past conditions of confinement only if he points to facts suggesting that he was subjected to cruel and unusual punishment. More specifically, he must allege that he suffered a sufficiently serious injury as the result of a prison official’s deliberate indifference to a substantial risk of serious physical harm. Farmer v. Brennan, 511 U.S. 825, 834- 38 (1994).

28 ///// 1 5. In order to state a cognizable claim for violation of due process during things such as custody classification level hearings or prisoner disciplinary proceedings, plaintiff must allege facts which suggest that he was deprived of a protected liberty interest. Such liberty interests are “generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, [citations omitted], nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Connor, 515 U.S. 472, 484 (1995).

8 6. Plaintiff is advised that under 42 U.S.C. § 1997e(a) “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” It appears plaintiff did not exhaust administrative remedies with respect to some portions of his complaint as underlying events occurred in close time to the filing of the complaint.

14 7. Under Rule 20 of the Federal Rules of Civil Procedure, plaintiff cannot bring unrelated claims against different defendants. Simply put, plaintiff cannot join claims against defendant B that have nothing to do with those brought against defendant A.

17 8. Prisoners do not have “a separate constitutional entitlement to a specific prison grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)). Accordingly, the prison grievance procedure does not confer any substantive constitutional rights upon inmates and actions in reviewing and denying inmate appeals generally do not serve as a basis for liability under section 1983. Id. 22 Plaintiff is informed that the court cannot refer to a prior pleading in order to make plaintiff’s amended complaint complete. Local Rule 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. ] Finally, the court notes that plaintiff has filed a motion for a preliminary injunction. Since || plaintiffs complaint does not state a claim for relief, injunctive or otherwise, the motion will be || denied without prejudice. Plaintiffis free to file a motion for preliminary injunctive relief with | his amended petition, but plaintiff is advised the motion will be denied if the amended complaint || does not state a claim for injunctive relief. Also, generally speaking, a complaint states a claim || for injunctive relief if current conditions of confinement violate federal rights. Injunctive relief is || generally not appropriate to redress past wrongs.

8 Accordingly, IT IS HEREBY ORDERED that: 9 1. The court’s March 2, 2023, findings and recommendations (ECF No. 7) are vacated.

10 2. Plaintiff's motion for leave to proceed in forma pauperis (ECF No. 2) is denied as | moot.

12 3. Plaintiff's complaint is dismissed.

13 4. Plaintiff is granted thirty days from the date of service of this order to file an amended | complaint that complies with the requirements of this order, 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 this case and must be labeled “Amended Complaint.” Failure to file an || amended complaint in accordance with this order will result in a recommendation that this action || be dismissed.

19 5. Plaintiff's motion for a preliminary injunction (ECF No. 3) is denied without prejudice | as described herein.

21 | Dated: April 6, 2023 / □□ I / dip Ze 22 CAROLYNK. DELANEY 23 UNITED STATES MAGISTRATE JUDGE | 1 cros0336.14