ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND (ECF No. 1)
AMENDED COMPLAINT DUE WITHIN
Plaintiff Alfred Eugene Shallowhorn ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on February 22, 2011. (ECF No. 1.) No other parties have appeared.
Plaintiff's Complaint is now before the Court for Screening. For the reasons stated below, the Court finds that Plaintiff has failed to state any claims upon which relief may be granted.
II. SCREENING REQUIREMENTS
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 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). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[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 that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.
III. SUMMARY OF COMPLAINT
Plaintiff brings this action for violations of his right to Due Process under the Fourteenth Amendment and retaliation in violation of the First Amendment. Plaintiff names the following individuals as Defendants: Gonzalez, Stane, Benavides, Harris, Hammer, Thomas, Tarnoff, Biter, Tallerico, Lomonaco, Grissom, Holstrom, Foston, Artis, Billings, and John Does I-VIII. All Defendants were employed at Kern Valley State Prison at the time of the incident.
Plaintiff alleges the following: On July 21, 2009, a riot occurred at Kern Valley State Prison. Plaintiff was not involved in the riot. Regardless, Defendants Benavides and Gonzalez wrote false reports claiming that Plaintiff participated in the riot and attacked another inmate. This other inmate denies that Plaintiff was one of the attackers.
As a result of the report, on July 21, 2009, Plaintiff was placed in administrative segregation ("ad-seg") and charged with battery of an inmate with a weapon. A prison official ordered the placement and another prison official and Defendant Hammer ordered that Plaintiff be retained there. On September 12, 2009, the charge was changed to misconduct likely to result in violence, which Plaintiff was found guilty of. When Plaintiff asked what conduct he had engaged in, Defendant Hearing Officer John Doe I could not say, but did state that if he did not find Plaintiff guilty that his supervisor would be angry. The hearing officer also ordered that Plaintiff be released from ad-seg. However, Plaintiff was not returned to the general population and he was denied regular program and privileges until October 22, 2009 when the Institutional Classification Committee held a hearing and released him.
Plaintiff seeks nominal compensation and punitive damages.
The Civil Rights Act under which this action was filed provides:
Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983. "Section 1983 . . . creates a cause of action for violations of the federal Constitution and laws." Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) (internal quotations omitted).
A. Administrative Segregation
Plaintiff appears to be arguing that there was insufficient evidence to hold him in adseg, that his ICC hearing was not held in a timely fashion, that he was held in ad-seg for longer than he should have been, and he complains of the conditions of confinement in adseg.
The Due Process Clause protects prisoners from being deprived of liberty without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a cause of action for deprivation of due process, a plaintiff must first establish the existence of a liberty interest for which the protection is sought. Wilkinson v. Austin, 545 U.S. 209, 221 (2005). "States may under certain circumstances create liberty interests which are protected by the Due Process Clause." Sandin v. Conner, 515 U.S. 472, 483-84 (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." Id. at 484.
Plaintiff argues that there was insufficient evidence to place him in ad-seg.
The Due Process Clause alone creates no liberty interest in remaining in the general prison population. Hewitt v. Helms, 459 U.S. 460, 468 (1983) (overruled on other grounds). Prisoners may be housed in administrative segregation to protect them from other inmates, to protect other inmates from the segregated prisoner, or pending investigation of disciplinary charges, transfer, or re-classification. Id. The allegation that a plaintiff was placed in administrative segregation does not in and of itself state a claim for relief based on deprivation of due process. May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997) (convicted inmate's due process claim fails because he has no liberty interest in freedom from state action taken within sentence imposed and administrative segregation falls within the terms of confinement ordinarily contemplated by a sentence) (quotations omitted); Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). The Ninth Circuit has explicitly found that "administrative segregation falls within the terms of confinement ordinarily contemplated by a sentence." Toussaint v. McCarthy, 801 F.2d 1080, 1091-92 (9th Cir. 1986), abrogated on other grounds by Sandin, 515 U.S. 472.
"[T]he requirements of due process are satisfied if 'some evidence' supports the decision of the hearing officer or the prison disciplinary board." Superintendent v. Hill, 472 U.S. 445, 455 (1985); see also Touissaint v. McCarthy, 926 F.2d 800, 802-03 (9th Cir. 1991); Bostic v. Carlson, 884 F.2d 1267, 1269-70 (9th Cir. 1989); Jancsek, III v. Oregon bd. Of Parole, 833 F.2d 1389, 1390 (9th Cir. 1987); Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987); see especially Burnsworth v. Gunderson, 179 F.3d 771, 774-74 (9th Cir. 1999) (where there is no evidence of guilt it may be unnecessary to demonstrate existence of liberty interest.). This standard is not ...