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Cole v. Sisto

June 4, 2010

WALTER LEE COLE, PLAINTIFF,
v.
D.K. SISTO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: J. Clifford Wallace United States Circuit Judge

ORDER

Cole, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983. He has also requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Cole names as defendants: (1) D.K. Sisto, individually and in his official capacity as Warden of the California State Prison-Solano (CSP-Solano); (2) V. Singh, individually and in his official capacity as Associate Warden of CSP-Solano; (3) Captain J. Neuhring, individually and in his official capacity as a correctional officer at CSP-Solano; (4) Lieutenant M. Chirilia, individually and in his official capacity as a correctional officer at CSP-Solano; (5) Sergeant Barocio, individually and in his official capacity as a correctional officer at CSP-Solano; (6) V. Cuevas, individually and in his official capacity as a correctional officer at CSP-Solano; (7) Lieutenant R. Samms, individually and in his official capacity as a correctional officer at CSPSolano; (8) R. Mahoney, individually and in his official capacity as a correctional officer at CSPSolano; (9) Sergeant McLain, individually and in his official capacity as a correctional officer at CSP-Solano; and (10) "John or Jane Doe," individually and in his or her official capacity as Director of the California Department of Corrections.

Pursuant to 28 U.S.C. § 1915(e)(2), I am required to dismiss a case at any time if, inter alia, I determine that the action fails to state a claim on which relief may be granted. Id. § 1915(e)(2)(B)(ii). I conclude that Cole's complaint fails to state a claim on which relief may be granted, and that none of the claims can be saved by amendment. Therefore, Cole's complaint is DISMISSED with prejudice, and his motion to proceed in forma pauperis is accordingly DENIED as moot.

I.

In his complaint, Cole states that on February 14, 2007, he was disciplined for disobeying the order of a correctional officer when he refused to "double-cell," i.e., accept a cell assignment where he would have to share a cell with another inmate. He was issued a Rules Violation Report (RVR), which documented his misconduct. See Cal. Code Regs. tit. 15 § 3312(a)(3). This RVR ultimately resulted in forfeiture of some of Cole's time credits, and added points to his classification score, which is used in making decisions about the level of security control an inmate requires. See Cal. Code Regs. tit. 15 § 3375(d).

Cole received another RVR on July 25, 2007, for disobeying the order of a correctional officer by again refusing to double-cell. This resulted in another forfeiture of credits and the imposition of additional points.

Cole received a third RVR, dated December 3, 2007, for again refusing an officer's order to double-cell; this resulted in a forfeiture of credits and the imposition of additional points, as well as 30 days' loss of certain yard privileges and 90 days' loss of certain canteen privileges.

Cole asserts that he was disciplined pursuant to a policy contained in an April 25, 2003 memorandum issued by the California Department of Corrections Memorandum DD58-03 (Memo DD58-03), which provides that, with certain exceptions not at issue here, "[i]t is departmental policy and therefore the expectation that inmates double-cell and accept housing assignments as directed by staff." Memo DD58-03 also authorizes prison officials to issue RVRs to inmates who refuse to double-cell.

Cole states that Memo DD58-03 is an invalid "underground regulation" because it was adopted without compliance with the procedures in California's Administrative Procedures Act (APA). Cole further asserts that Memo DD58-03 was adopted by CSP-Solano and incorporated into certain of CSP-Solano's own institutional policies and documents; he argues that, because Memo DD58-03 is invalid, all of the CSP-Solano documents derived therefrom, and any discipline imposed on him in connection with his refusal to double-cell, are likewise invalid.

Cole argues, based on the above facts, that he has suffered a violation of his rights under:

(1) the Eighth Amendment's prohibition against cruel and unusual punishment; (2) the Equal Protection Clause; (3) the Double Jeopardy Clause; (4) the Ex Post Facto Clause; and (5) the Due Process Clause. His complaint fails to state a claim cognizable under 42 U.S.C. § 1983 under any of those constitutional protections.

II.

In determining whether a complaint states a claim, I must take all allegations of material fact as true and construe them in the light most favorable to the plaintiff. Fed'n of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir. 1996). A complaint fails to state a claim upon which relief may be granted if a plaintiff fails to allege sufficiently the grounds of his entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558 (2007); see also Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) (dismissing civil rights complaint). "[B]are assertions . . . amount[ing] to nothing more than a 'formulaic recitation of the elements'" of a claim are not entitled to be assumed true. Iqbal, 129 S.Ct. at 1951, quoting Twombly, 550 U.S. at 555. When a complaint raises an ...


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