The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner*fn1 proceeding in forma pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983. Pending before this court is plaintiff's Second Amended Complaint, filed in response to the orders of the magistrate judge formerly assigned this case. While the former magistrate judge granted plaintiff's application to proceed in forma pauperis, he dismissed plaintiff's original and amended complaints, with further leave to amend, on the ground that plaintiff had failed to allege a potentially cognizable claim.
The gravamen of plaintiff's pleadings is a challenge to his classification status, specifically, the assessment of an "'R' Suffix" to his Classification Score/Central File, which identifies plaintiff as a sexual offender. Plaintiff contends that the suffix was improperly affixed because the underlying charges, which resulted in the revocation of his parole, were ultimately dismissed. Plaintiff seeks the removal of the designation from his records, as well as actual and punitive damages.
The former magistrate judge dismissed plaintiff's prior complaints for failure to allege an "atypical and significant hardship" sufficient to state a colorable claim for relief under the Due Process Clause. Most recently, the magistrate judge reasoned (Dkt. No. 19, at 1-3):
The Due Process Clause protects prisoners from being deprived of liberty without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963 (1974). In order to state a cause of action for deprivation of procedural due process, a plaintiff must first establish the existence of a liberty interest for which the protection is sought. Liberty interests may arise from the Due Process Clause itself or from state law. Hewitt v. Helms, 459 U.S. 460, 466-68,103 S.Ct. 864 (1983).
The Due Process Clause itself does not confer on inmates a liberty interest in a particular classification status. See Moody v. Daggett, 429 U.S. 78, 88, n. 9, 97 S.Ct. 274 (1976). The existence of a liberty interest created by state law is determined by focusing on the nature of the deprivation. Sandin v. Conner, 515 U.S. 472, 481-84, 115 S.Ct. 2293 (1995). Liberty interests created by state law are generally limited to freedom from restraint which "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 484, 115 S.Ct. 2293.
Under certain circumstances, labeling a prisoner with a particular classification may implicate a liberty interest subject to the protections of due process. Neal v. Shimoda, 131 F.3d 818, 827 (9th Cir.1997) ("[T]he stigmatizing consequences of the attachment of the 'sex offender' label coupled with the subjection of the targeted inmate to a mandatory treatment program whose successful completion is a precondition for parole eligibility create the kind of deprivations of liberty that require procedural protections.").
In the August 18, 2009, order dismissing the original complaint with leave to amend, the undersigned found that plaintiff had not alleged any facts establishing the existence of a liberty interest with respect to the assignment of the "R" suffix designation. Plaintiff did not describe any injury he suffered as a result of the "R" suffix designation. Because plaintiff did not allege that he suffered an "atypical and significant hardship" as a result of the R suffix, the undersigned found that he had failed to state a colorable claim for relief. Accordingly, the complaint was dismissed with leave to amend.
In the amended complaint, plaintiff alleges that as a result of the "R" suffix designation, he has been subjected to "injuries, defamation, shunning, slander, libel, stigmatizing, embarrassment and dissocialization." Amended Complaint, p. 4. However, plaintiff does not describe these alleged injuries in any detail. Plaintiff does not describe how he has been shunned or stigmatized. These allegations of injury are so vague and conclusory that the court cannot determine whether plaintiff has suffered an "atypical and significant" hardship as a result of the "R" suffix designation. Accordingly, plaintiff's amended complaint is dismissed with leave to file a second amended complaint.
In the operative Second Amended Complaint ("SAC"), plaintiff again alleges only that his liberty interest requires "that he not be subjected in (sic) injuries, defamation, shunning, slander, libel, stigmatizing, embarrassment and dissocialization." (SAC, at 4.) Plaintiff contends that he "does not have to await future punishments imposed by the defendants' unsupported allegations . . . [that he] does not have to await the consummation of threatened injury to obtain preventative relief because the injury has already occurred [and] is most certainly impending . . . " (Id.) In addition to his due process claim, plaintiff contends that defendants' reliance on dismissed/unproven allegations is tantamount to a denial of his sixth amendment right to a jury trial. (Id. at 5.)
While plaintiff appears to have exhausted his administrative remedies pursuing this challenge (id. at 6-7, and attached exhibits), the administrative decisions demonstrate that CDCR officials carefully considered the matter and properly determined that it was appropriate to retain plaintiff's "R" designation. As the Classification Committee initially explained, pursuant to plaintiff's March 2008 Annual Review (Dkt. No. 21, at 21):
Although not convicted of these offenses in a criminal court, the BPT [Board of Prison Terms] did find good cause for: Use of Alcohol, Kidnapping, Attempted Rape and Assault to Commit Rape/ Oral Copulation, and [plaintiff] was sentenced to a 12 month revocation. Per CCR subsection 3377.1(b)(1) & DOM subsection 62010.4.3.11, because the BPH [Board of Parole Hearings] found good cause for an offense equivalent to a PC 290 offense, [plaintiff] meets the criteria for automatic "R" suffix."
In response to plaintiff's administrative grievance filed July 2008, the August 2008 First Level Response summarized staff's resulting investigation and findings as follows (Dkt. No. 21, at 29):
On 2-18-97, you were arrested for PC261(A)(2) Rape with Force, PC264.1 Attempted Rape, and PC288A(D), Attempted Oral Cop (sic) in Concert with Force, PC264.1. Attempted Rape and PC288A(D) Attempted Oral Cop in Concert with Force were subsequently dismissed in court in the furtherance of justice. However, PC261(A)(2) Rape with Force was not dismissed.*fn2 Archive File CDC #H98427 noted that BPT found good cause for Assault to Commit Rape and Attempted Rape. Pursuant to CCR Subsection 3377.1(b)(1) & DOM Subsection 62010.4.3.1.1, you meet the criteria for placement of an automatic "R" Suffix. One of the elements for attaining an automatic "R" Suffix is: the Board ...