The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING ACTION PROCEED ON DUE PROCESS CLAIM AND EQUAL PROTECTION CLAIM BE DISMISSED FOR FAILURE TO STATE A CLAIM (Doc. 24) OBJECTIONS DUE WITHIN THIRTY DAYS
Findings and Recommendations Following Screening of Second Amended Complaint
Plaintiff Willie Tyrone Cooper ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on February 8, 2007. On June 4, 2007, the Court dismissed Plaintiff's complaint, with leave to amend, for failure to state a claim upon which relief may be granted. Plaintiff filed an amended complaint on June 21, 2007, and the Court recommended that this action proceed against Defendants Morales, Alvarez, and Garza for denial of due process; that Plaintiff's false imprisonment claim, Eighth Amendment claims, and equal protection claim be dismissed, with prejudice, for failure to state a claim; and that Defendants Stebbins, Haws, and Galaza be dismissed from this action based on Plaintiff's failure to state any claims upon which relief may be granted against them.
Plaintiff objected to the recommendation, and on August 4, 2008, the Honorable Anthony W. Judge Ishii issued an order adopting the recommendation in full with the exception of dismissal of the equal protection claim with prejudice. Judge Ishii granted Plaintiff leave to amend the equal protection claim and limited Plaintiff to filing a second amended complaint containing only the due process and equal protection claims against Defendants Morales, Alvarez, and Garza. On September 2, 2008, Plaintiff filed a second amended complaint in compliance with Judge Ishii's order.
II. Screening Requirement
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. § 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). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).
III. Plaintiff's Second Amended Complaint
A. Substantive Due Process Claim
Plaintiff alleges that on November 23, 2005, while he was working in the central kitchen at Kern Valley State Prison, searches were conducted. Plaintiff and the other inmate workers had already been searched by other officers when Defendants Morales and Alvarez, who were with the Investigative Services Unit, arrived and set Plaintiff up by planting a weapon and falsifying reports. Thereafter, Defendant Garza conducted Plaintiff's administrative segregation ("ad-seg") placement review and subsequent disciplinary hearing. Plaintiff alleges that he did not receive a fair hearing, and that Defendant Garza did not consider all of the evidence, including Plaintiff's full investigative employee report. Plaintiff alleges that as a result of the planted weapon, falsified reports, and unfair hearing, he was housed in ad-seg, lost his job, lost his medium security classification, and had his parole date extended from 2007 to 2011, in violation of his right to substantive due process.
The touchstone of due process is protection of the individual against arbitrary government action, whether the fault lies in a denial of fundamental procedural fairness or in the exercise of power without any reasonable justification in the service of a legitimate governmental objective. County of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998) (citations and quotation marks omitted). "The concept of substantive due process . . . forbids the government from depriving a person of life, liberty, or property in such a way that shocks the conscience or interferes with rights implicit in the concept of ordered liberty." Nunez v. City of Los Angeles, 147 F.3d 867, 871 (9th Cir. 1998) (citation and internal quotation marks omitted). To establish a claim, Plaintiff "must, as a threshold matter, show a government deprivation of life, liberty, or property." Action Apartment Ass'n, Inc. v. Santa Monica Rent Control Bd., 509 F.3d 1020, 1026 (9th Cir. 2007) (quoting Nunez at 871). "The Due Process Clause takes effect only if there is a deprivation of a protected interest." Nunez at 874 (emphasis in original).
As previously recognized by the Court, Plaintiff does not have a protected liberty interest in remaining free from ad-seg, in having a job, or in his classification status, Sandin v. Conner, 515 U.S. 472, 484 (1995); Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007), but he does have a protected liberty interest in his parole date, Sass v. California Board of Prison Terms, 461 F.3d 1123, 1128 (9th Cir. 2006). (Docs. 15, 20.) Therefore, Plaintiff's allegations that Defendants Morales and Alvarez planted a weapon on him and falsified reports, and Defendant Garza did ...