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Erwin Posadas v. Avenal State Prison

November 28, 2011

ERWIN POSADAS,
PLAINTIFF,
v.
AVENAL STATE PRISON, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM (ECF No. 1)

THIRTY-DAY DEADLINE

I. Screening Requirement

Plaintiff Erwin Posadas is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is the complaint, filed August 2, 2010.

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 "fails to state a claim on which relief may be granted," or that "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).

II. Discussion

Plaintiff is in the custody of the California Department of Corrections and Rehabilitation and is currently incarcerated at California State Prison ("CSP"), Corcoran. Plaintiff's complaint is largely incomprehensible. In the complaint Plaintiff states that he is bringing suit against Defendants T. J. Lopez, Hartley, Martinez, Fisher, and Vowel, who are employed at CSP-Corcoran and CSP- Avenal, for violations of due process. Plaintiff is seeking a position of safety, security and freedom. Plaintiff also states that he has an immigration hold.

To the extent that the Court is able to comprehend Plaintiff's claims, on January 11, 2009, Plaintiff was found to be under the influence and was required to provide a specimen. Plaintiff refused to provide a specimen and was placed in administrative segregation. Plaintiff appeared before the ICC on January 22, 2009, and requested that he be placed back on the same general population yard. Plaintiff was placed on a different yard and refused to accept placement.

On February 2, 2009, Defendant Lopez had Plaintiff sign a cell living chrono to be housed with Inmate Ochoa. Plaintiff asked Defendant Lopez if Ochoa was active and Defendant Lopez did not answer. A fight occurred. One week later, Plaintiff was placed back in administrative segregation with a broken jaw.

Plaintiff was transferred for out to court status in both Monterey and Kings County Superior Courts. Plaintiff was confronted with various incidents. On January 23, 2010, Plaintiff appeared before the ICC and his general population placement was reinstated.

As discussed below, Plaintiff has failed to state a cognizable claim for relief. Plaintiff shall be given the opportunity to file an amended complaint curing the deficiencies described by the Court in this order. In the paragraphs that follow, the Court will provide Plaintiff with the legal standards that appear to apply to his claims. Plaintiff should carefully review the standards and amend only those claims that he believes, in good faith, are cognizable.

III. Discussion

A. Due Process

The Due Process Clause protects against the deprivation of liberty without due process of law. Wilkinson v. Austin, 545 U.S. 209, 221, 125 S. Ct. 2384, 2393 (2005). In order to state a cause of action for a deprivation of due process, a plaintiff must first identify a liberty interest for which the protection is sought. Id. The Due Process Clause does not confer a liberty interest in freedom from state action taken within a prisoner's imposed sentence. Sandin v. Conner, 515 U.S. 472, 480, 115 S. Ct. 2293, 2298 (1995). However, a state may "create liberty interests which are protected by the Due Process Clause." Sandin, 515 U.S. at 483-84, 115 S. Ct. at 2300. A prisoner has a liberty interest protected by the Due Process Clause only where the restraint "imposes atypical ...


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