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Quach v. Appleberry

February 19, 2009

DAVID QUACH, PLAINTIFF,
v.
J. APPLEBERRY; J. EDWARDS; L. SWEIGERT; J.L. PULSIPHER; G. THUMSER; P. MANDEVILLE; AND S. HUBBARD, DEFENDANTS.



The opinion of the court was delivered by: Susan Oki Mollway United States District Judge

SCREENING ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

I. INTRODUCTION

On March 27, 2008, pro se Plaintiff David Quach, a California prisoner incarcerated at Atascadero State Hospital in Atascadero, California, brought this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is proceeding in forma pauperis.

Quach was put into administrative segregation on April 4, 2007, pending an investigation of injuries to himself, his bunk-mate, and one other inmate. Defendant Sergeant Appleberry conducted the investigation on April 10, 2007, and recorded statements from several confidential sources. As a result, Quach was accused of committing battery on his bunkmate.

Prior to his hearing on April 24, 2007, Quach was assigned an investigative employee ("IE"), who did not investigate as thoroughly as Quach requested. At the hearing, Quach alleges that Defendant Sweigert, the hearing officer, did not allow Quach to call witnesses or explain his version of the incident. Quach was found to have battered an inmate.

Quach notified Defendant Pulsipher, the Investigative Service Unit Lieutenant, that he believed Appleberry had fabricated the charges against him. Quach then wrote to Defendant Mandeville, the Associate Warden, and lodged the same complaint. No action was taken, but Mandeville encouraged Quach to appeal if he wished to challenge any finding.

Quach appealed to the Chief of Appeals in Sacramento, alleging that his due process rights had been violated. The appeal was partially granted. Quach was granted another hearing and assigned a new IE. The IE investigated everything Quach requested, save for interviewing the confidential sources. At the new hearing, on December 8, 2007, Quach was found not to have battered an inmate, and the accusation against him was dismissed.

Quach claims that he suffered physical and emotional problems as a result of this incident, violating his Eighth Amendment right to be free from cruel and unusual punishment. He also asserts a violation of his Fourteenth Amendment right to due process, as he was placed in administrative segregation for 180 days during this disciplinary proceeding.

After reviewing the petition pursuant to 28 U.S.C. § 1915(e)(2), the court has determined that Quach's Complaint does not state a claim. Accordingly, the Complaint is DISMISSED.

Quach is granted leave to amend his Complaint to state viable claims no later than March 20, 2009.

II. ANALYSIS

A claim arises under 42 U.S.C. § 1983 against one "who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws."

42 U.S.C. § 1983.

The Supreme Court has cautioned that this section "is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes." Baker v. McCollan, 443 U.S. 137, 145 (1979). "The first inquiry in any ยง 1983 suit, therefore, is whether the ...


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