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Chester Johnson v. J. Lee

February 9, 2011


9th Circ.


Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. On August 26, 2010, the court ordered plaintiff to submit a new application to proceed in forma pauperis that included the proper certification within 30 days. Dckt. No. 6. On October 18, 2010, this court dismissed the case without prejudice for plaintiff's failure to submit a certified copy of his trust account statement. Dckt. No. 7. On October 22, 2010, after the case had been closed, the court received plaintiff's new motion to proceed in forma pauperis. Dckt. No. 9.

Plaintiff then submitted a notice of appeal concurrently with a motion to vacate the judgment. Dckt. No. 10. In the motion, plaintiff indicates that he immediately filed an administrative appeal to obtain the required certified trust account statement upon receipt of the court's August 26, 2010 order. Once he obtained the certification, over a month later, he acted diligently in submitting it to prison authorities for mailing to the court. Accordingly, the court finds that relief from the judgment is justified under Federal Rule of Civil Procedure 60(b).

The court further finds that plaintiff's application to proceed in forma pauperis makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. § 1915(b)(1) and (2).

Pursuant to 28 U.S.C. § 1915A, the court shall review "a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." 28 U.S.C. § 1915A(a). "On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b).

The court has reviewed plaintiff's complaint and, for the limited purposes of § 1915A screening, finds that it states cognizable claims against defendants J. Lee and M. A. Chirila.

For the reasons stated below, the complaint does not state a cognizable claim against defendant C. Orrick. These claims will therefore be dismissed with leave to amend.

A district court must construe a pro se pleading "liberally" to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity to cure them. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000). While detailed factual allegations are not required, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570).

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. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.

Id. (citations and quotation marks omitted). Although legal conclusions can provide the framework of a complaint, they must be supported by factual allegations, and are not entitled to the assumption of truth. Id. at 1950.

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements:

(1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). An individual defendant is not liable on a civil rights claim unless the facts establish the defendant's personal involvement in the constitutional deprivation or a causal connection between the defendant's wrongful conduct and the alleged constitutional deprivation. See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978).

Plaintiff alleges that on January 10, 2008, defendant J. Lee reported on a CDC form 115 Rules Violation Report ("RVR") that the Metal Fabrication work supervisor had ordered plaintiff to go to work but that plaintiff refused. Dckt. No. 1 at 3. After a disciplinary hearing, plaintiff was found guilty of refusing to work and assessed a 30-day credits loss and a 90-day loss of various privileges. Id. The guilty finding was reversed and the discipline expunged after plaintiff administratively appealed it. Id. at 3, 11-12.

Plaintiff's statement of facts is devoid of mention of defendants Chirila and Orrick. However, pages attached to the complaint show that defendant Chirila acted as the hearing officer at plaintiff's disciplinary hearing and that defendant Orrick reviewed the initial RVR and provided a copy of the RVR and hearing report. While the attached documents may support a claim that defendant Chirila, as the hearing officer, deprived plaintiff of due process in some respect at the hearing (see id. at 12), nothing in the complaint or attached pages indicates how defendant Orrick participated in or caused a violation of plaintiff's federal rights. The apparent facts that defendant Orrick simply reviewed the RVR and provided a copy to plaintiff do not establish a constitutional violation. There is no respondeat superior liability under § 1983. Palmer v. Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). That is, plaintiff may not sue any supervisor on a theory that the supervisor is liable for the acts of his or her subordinates. See Polk County v. Dodson, 454 U.S. 312, 325, 102 S. Ct. 445, 70 L. Ed. 2d 509 (1981). "Because vicarious liability is inapplicable to . . . ยง 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 129 S. Ct. at 1948. A supervisor may be liable "for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or ...

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