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Burnett v. Trujillo

August 24, 2010

ESTER BURNETT, CDCR #V-35245, PLAINTIFF,
v.
M. TRUJILLO, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge

ORDER DISMISSING FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2) AND 1915A(b)

I. Procedural History

On April 12, 2010, Ester Burnett ("Plaintiff"), a state prisoner currently incarcerated at High Desert State Prison located in Susanville, California, and proceeding pro se, submitted a civil action pursuant to 42 U.S.C. § 1983. Additionally, Plaintiff filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). In his original Complaint, Plaintiff claimed that his constitutional rights were violated when he was housed at Centinela State Prison in 2008. See orig. Compl. at 1.

On May 10, 2010, this Court granted Plaintiff's Motion to Proceed IFP but sua sponte dismissed his Complaint for failing to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). In addition to notifying Plaintiff of the deficiencies of pleading, the Court informed Plaintiff that he must comply with Rule 8 of the Federal Rules of Civil Procedure. See May 10, 2010 Order at 3-6. Plaintiff was given leave to file a First Amended Complaint and after receiving an extension of time, Plaintiff filed his First Amended Complaint ("FAC") on August 13, 2010. However, it is clear that Plaintiff failed to heed any of the Court's directions in the May 10, 2010 Order as he has filed an Amended Complaint that is twice as long as his original Complaint. This also fails to comply with Local Rule 8.2 that informs prisoners that they must use the Court's approved § 1983 complaint forms and they may only attach an additional fifteen (15) pages. See S.D. CIVLR 8.2(a). Here, Plaintiff's FAC is over seventy pages long and contains rambling allegations which does not comply with either Rule 8 or Local Rule 8.2(a). Thus, while the Court will notify Plaintiff once again of the deficiencies of pleading, he is cautioned that if he files a Second Amended Complaint, he must comply in all aspects with this Court's Order.

II. SUASPONTE SCREENING PER 28 U.S.C. §§ 1915(e)(2)(b)(ii) and 1915A(b)(1)

As the Court stated in its previous Order, notwithstanding IFP status or the payment of any partial filing fees, the Court must subject each civil action commenced pursuant to 28 U.S.C. § 1915(a) to mandatory screening and order the sua sponte dismissal of any case it finds "frivolous, malicious, failing to state a claim upon which relief may be granted, or seeking monetary relief from a defendant immune from such relief." 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) ("[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners."); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) "not only permits but requires" the court to sua sponte dismiss an in forma pauperis complaint that fails to state a claim).

Before its amendment by the PLRA, former 28 U.S.C. § 1915(d) permitted sua sponte dismissal of only frivolous and malicious claims. Lopez, 203 F.3d at 1130. However, as amended, 28 U.S.C. § 1915(e)(2) mandates that the court reviewing an action filed pursuant to the IFP provisions of section 1915 make and rule on its own motion to dismiss before directing the U.S. Marshal to effect service pursuant to FED.R.CIV.P. 4(c)(3). See Calhoun, 254 F.3d at 845; Lopez, 203 F.3d at 1127; see also McGore v. Wrigglesworth, 114 F.3d 601, 604-05 (6th Cir. 1997) (stating that sua sponte screening pursuant to § 1915 should occur "before service of process is made on the opposing parties").

"[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)"); Andrews, 398 F.3d at 1121. In addition, the Court has a duty to liberally construe a pro se's pleadings, see Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988), which is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). In giving liberal interpretation to a pro se civil rights complaint, however, the court may not "supply essential elements of claims that were not initially pled." Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person acting under color of state law committed the conduct at issue, and (2) that the conduct deprived the claimant of some right, privilege, or immunity protected by the Constitution or laws of the United States. See 42 U.S.C. § 1983; Nelson v. Campbell, 541 U.S. 637, 124 S.Ct. 2117, 2122 (2004); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc).

A. Classification

Plaintiff claims that his Fourteenth Amendment Due Process rights were violated when he was not permitted to be present at his classification hearings. See FAC at 11. As a result, Plaintiff was transferred to another prison. Id. Plaintiff does not have a constitutional right to be housed at a particular institution or to receive a particular security classification. See Olim v. Wakinekona, 461 U.S. 238, 244-50 (1983); Meachum, 427 U.S. at 224; Moody v. Daggett, 429 U.S. 78, 87 n.9 (1976). Thus, Plaintiff's Fourteenth Amendment due process claims relating to the changes in his classification, are dismissed for failing to state a claim upon which relief can be granted.

B. Job Assignment

Plaintiff also claims that prison officials violated his Fourteenth Amendment due process rights when they removed him from his job assignment without a proper hearing. See FAC at 11. However, Plaintiff does not have a constitutional right to a job while he is in prison. See Toussaint v. McCarthy, 801 F.2d 1080, 1094-95 (9th. Cir. 1986) (inmates have no constitutional right to participate in prison work programs). Thus, Plaintiff's Fourteenth Amendment due ...


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