The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Plaintiff's original complaint was dismissed with leave to file an amended complaint. See Order, filed on May 3, 2010. Plaintiff has consented to the jurisdiction of the undersigned. See Docket # 6. Plaintiff was granted an extension of time file an amended complaint by order filed on May 26, 2010. Plaintiff filed an amended complaint.
As plaintiff was previously informed, 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 amended 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).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 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.
A complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, No. 07-1015, 2009 WL 1361536 at * 12 (May 18, 2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "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." Id.
In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843 (1969).
Although plaintiff has made an effort to cure the defects of his original complaint, he has not been able to frame colorable claims. Plaintiff alleges that on January 10, 2006, defendant Correctional Officer (C/O) Ramirez used excessive force in violation of plaintiff's constitutional rights when he tried to hit plaintiff with a baton while plaintiff was already face- down and prone on the ground. Amended Complaint (AC), p. 3. However, instead of hitting plaintiff, defendant Ramirez hit C/O Rayfield (not named as a defendant), breaking C/O Rayfield's right hand, resulting in an extended disability leave for Rayfield. Id. In order to justify his use of excessive force, plaintiff continues, defendant Ramirez fabricated a Rules Violation Report (RVR) to conceal his own wrongdoing and to show that it was plaintiff, and not himself, who was out of control. Id. Plaintiff was placed in administrative segregation (Ad Seg), pending the resolution of the RVR and the outcome of the referral of the incident to the Solano County District Attorney's Office. Id.
Plaintiff alleges that defendant A. Smith of the California Medical Facility (CMF) Investigative Services Unit (ISU) signed documentation indicating that the Solano County District Attorney's Office had accepted the RVR incident for criminal prosecution on February 22, 2006. AC, pp. 3-4, Exhibit (Ex.), p. 10. Defendant Smith, on April 18, 2006, then informed plaintiff that the D.A. had advised that criminal charges would not be filed. AC, p. 3, Ex., p. 11. Plaintiff alleges his due process and equal protection rights were violated as a result of the ISU's (presumably through the person of defendant Smith) "fabricating" criminal prosecution documents which led to the development of plaintiff's "severe facial paralysis (Bell's Palsy) to the complete left side of the face," which was diagnosed on March 30. AC, p. 4. Plaintiff also claims that this medical condition has resulted "in permanent nerve damage and disfigurement...." Id. He further claims that the medical condition is a direct result of the cruel and unusual punishment to which he was subjected by defendant Ramirez and unnamed others who "manipulated the process leaving plaintiff confined in Ad Seg for nine months." Id. Plaintiff claims that at the June 15th RVR hearing, the hearing officer dismissed the RVR "which is a favorable disposition" and in September, plaintiff was transferred to Corcoran III. Id. Plaintiff also alleges that defendant M. Cry deliberately obstructed plaintiff in the filing of his grievances and deprived him of his right of access to the courts. AC, p. 4. Plaintiff seeks declaratory relief and money damages, including punitive. Id. at 3.
As to plaintiff's claim of excessive force against defendant Ramirez for swinging at plaintiff but hitting another correctional officer is wholly frivolous. "[W]henever prison officials stand accused of using excessive physical force in violation of the [Eighth Amendment], the core judicial inquiry is...whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, 6-7,112 S.Ct. 995, 999 (1992), citing Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078 (1986). When determining whether the force was excessive, we look to the "extent of the injury..., the need for application of force, the relationship between that need and the amount of force used, the threat 'reasonably perceived by the responsible officials,' and 'any efforts made to temper the severity of a forceful response.'" Hudson, supra, at 7, 112 S.Ct. at 999.
While de minimis uses of physical force generally do not implicate the Eighth Amendment, significant injury need not be evident in the context of an excessive force claim, because "[w]hen prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated." Hudson, supra, at 9, 112 S.Ct. at 1000, citing Whitley, at 327, 106 S.Ct., at 1088. In this instance, plaintiff appears to be seeking to have the injury sustained by another be transferred to him but there is no such thing as transferred intent in the context of an excessive force claim.
Nor does plaintiff frame a claim of retaliation against defendant Ramirez because in order to do so plaintiff must plead facts which suggest that retaliation for the exercise of protected conduct was the "substantial" or "motivating" factor behind the defendant's conduct. See Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). The plaintiff must also plead facts which suggest an absence of legitimate correctional goals for the conduct he contends was retaliatory. Pratt at 806 (citing Rizzo at 532). Verbal harassment alone is insufficient to state a claim. See Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987). However, even threats of bodily injury are insufficient to state a claim, because a mere naked threat is not the equivalent of doing the act itself. See Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987). Mere conclusions of hypothetical retaliation will not suffice, a prisoner must "allege specific facts showing retaliation because of the exercise of the prisoner's constitutional rights." Frazier v. Dubois, 922 F.2d 560, 562 (n. 1) (10th Cir. 1990).
Plaintiff's own statement at the RVR hearing, which plaintiff includes as an exhibit, indicates that while defendant Ramirez yelled at him as plaintiff returned to his cell to retrieve his ID card, plaintiff began throwing cleaning supplies out the door of his cell. AC, p. 21. Plaintiff states that Ramirez' yelling and disrespecting him led plaintiff to swing at him. Id. Even assuming that defendant Ramirez falsified an RVR against plaintiff, however, plaintiff does not thereby set forth a claim of a violation of due process for his alleged nine months of administrative segregation. "Typically, administrative segregation in and of itself does not implicate a protected liberty interest." Serrano v. Francis, 345 F.3d 1071, 1078 (9th Cir. 2003, citing Sandin v. Connor, 515 U.S. 472, 486 115 S.Ct. 2293 (1995). Plaintiff has not alleged sufficient facts to indicate that the conditions of administrative segregation constituted an "atypical and significant hardship on [him] in relation to the ordinary incidents of prison life." Sandin, supra, 515 U.S. at 484, 115 S.Ct. at 2300.*fn1 Defendant Ramirez will be dismissed with one further opportunity granted for plaintiff to amend his claim as to this defendant.
Nor does plaintiff frame a colorable claim against defendant Smith for Smith's having at first indicated that the RVR incident had been accepted for criminal prosecution (on February 22, 2006) and then two months later (on April 18, 2006) having advised plaintiff that criminal charges would not be filed by the Solano County District Attorney. AC, pp. 10-11. As Deputy District Attorney Harris explained to plaintiff in a letter dated June 29, 2006, the form that CMF/ISU uses to indicate that an incident has been accepted for criminal prosecution should have stated that the incident was being accepted for further review. AC, p. 16. However, it is difficult to see how defendant Smith could remotely be implicated for using a CMF form in February of 2006, for plaintiff's subsequent Bell's Palsy condition, apparently diagnosed in July or August of 2006, notwithstanding that plaintiff, within the body of his complaint, alleges he was diagnosed on March 30. AC, pp. 12-14. Although it is unclear whether the condition was related solely to stress plaintiff was under, the medical report, dated August 9, 2006, indicates the condition was resolving, again notwithstanding that plaintiff alleges within his amended complaint that he has suffered permanent nerve damage and disfigurement. Id. "The court need not accept as true allegations that contradict matters properly subject to judicial notice or by exhibit." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Defendant Smith will be dismissed without leave to amend
As to his allegations against defendant Cry, 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). Even the non-existence of, or the failure of prison officials to properly implement, an administrative appeals process within the prison system does not raise constitutional concerns. Mann v. Adams, 855 F.2d at 640. See also, Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993); Flick v. Alba, 932 F.2d 728 (8th Cir. 1991). Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D.Ill. 1982) ("[A prison] grievance procedure is a procedural right only, it does not confer any substantive right upon the inmates. Hence, it does not give rise to a protected liberty interest requiring the procedural protections envisioned by the fourteenth amendment"). Specifically, a failure to process a grievance does not state a constitutional violation. Buckley, supra. State regulations give rise to a liberty interest protected by the Due ...