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Horace andrew Bell v. Kelly Harrington

March 15, 2012

HORACE ANDREW BELL,
PLAINTIFF,
v.
KELLY HARRINGTON, ET AL.,
DEFENDANTS.



FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF THIS ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM, AS BARRED BY RES JUDICATA, AND FOR RULE 11(b)(3) VIOLATION OBJECTIONS DUE WITHIN THIRTY DAYS

I. Procedural Background

On August 28, 2009, Horace Andrew Bell ("Plaintiff'), a state prisoner proceeding pro se and in forma pauperis, filed this action as a petition for writ of habeas corpus, 28 U.S.C. § 2254. Doc. 1.

On August 11, 2010, the Court dismissed Plaintiff's petition and ordered Plaintiff to file an amended petition for writ of habeas corpus, or a civil rights complaint pursuant to 42 U.S.C. § 1983. Doc. 7. On August 23, 2010, Plaintiff filed a civil rights complaint pursuant to 42 U.S.C. § 1983. Doc. 8. On October 21, 2010, the Court dismissed Plaintiff's civil rights complaint with leave to amend. Doc. 10. On November 3, 2010, Plaintiff filed a first amended complaint, pursuant to 42 U.S.C. § 1983. Doc. 13. On April 15, 2011, the Court directed service of Plaintiff's first amended complaint, finding a cognizable claim against Defendants M.D. Biter, Chief Deputy Warden, Curtiss Lawless, Associate Warden, T. Kurz, C. Brubaker, A. Romero, X. Cano, Lt. Doran, and Sgt. Flippo. Doc. 14. On March 8, 2012, the United States District Court, for the Eastern District of California, Sacramento Division, transferred this action to the United States District Court for the Eastern District of California, Fresno Division*fn1 since the allegations in the complaint took place at Kern Valley State Prison.*fn2 Doc. 42. Upon transfer to the Fresno division, the parties had four (4) discovery motions pending that were filed in November 2011 and December 2011. Docs. 33, 35, 36, 38. In addition, this action has already been pending since 2009. These factors prompted the Court to review the status of Plaintiff's case.

II. Plaintiff's First Amended Complaint Fails to State a Claim

A. Screening Standard

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) (emphasis added).

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, 556 U.S. 662, __, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S. Ct. at 1949.

While prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, the pleading standard is now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Under § 1983, Plaintiff must demonstrate that each defendantpersonally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S. Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S. Ct. at 1949-50; Moss, 572 F.3d at 969.

B. Allegations in Plaintiff's Case

On August 28, 2009, Horace Andrew Bell ("Plaintiff'), a state prisoner proceeding pro se and in forma pauperis, filed this action as a writ of habeas corpus, 28 U.S.C. § 2254, alleging discrimination based on disability and loss of his work assignment in the dining hall due to placement in administrative segregation against Defendant Kelly Harrington, Warden. Pet. at 1 & 10, Doc. 1. Plaintiff attached an administrative segregation unit placement notice dated September 5, 2007. Id. at 12. The notice stated as follows:

On September 5, 2007, you are being placed into ASU pending investigation of threats on staff on Facility A. Therefore, your presence in general population presents a threat to the safety and security of the institution, staff, other inmates, and your safety. You may remain in ASU pending administrative review to determine appropriate housing and program needs. As a result of this placement, your custody level, privilege group, visiting status, and credit earning status are subject to change.

Id. at 12. On August 23, 2010, Plaintiff filed a complaint, pursuant to 42 U.S.C. § 1983, naming Defendants Kelly Harrington, Warden, M.D. Biter, Chief Deputy Warden, Curtiss Lawless, Associate Warden, X. Cano, Lt. Doran, and Sgt. Flippo. Compl. at 1-3, Doc. 8. On November 3, 2010, Plaintiff filed a first amended complaint, pursuant to 42 U.S.C. § 1983, naming Defendants Kelly Harrington, Warden, M.D. Biter, Chief Deputy Warden, Curtiss Lawless, Associate Warden, T. Kurz, C. Brubaker, A. Romero, X. Cano, Lt. Doran, and Sgt. Flippo. Am. Compl. at 1-3, Doc. 13. In Plaintiff's first amended complaint, he attached an ADA request regarding his work assignment dated June 17, 2008. Id. at 13. On the request form, K. Doran, Lt., made the following findings:

Inmate Bell claims he is being denied a job in dining due to his disability (DPW). Bell was assigned in dining from May 18, 2007 through September 7, 2007. He lost his job when he went to administrative segregation. When he got out of Ad-Seg and was assigned a job, the only thing available was a dorm porter position. He remained in that job from November 17, 2007 through December 5, 2007, when he was reassigned as a recreation aide . . . Inmate Bell has not been denied a dining position due to his DPW status. He has been assigned to available jobs based on institutional needs.

Id. at 13. In Plaintiff first amended complaint, he attached a director's level appeal decision dated September 11, 2008. Id. at 10. The decision states that Plaintiff filed a staff complaint against Lt. Doran, for discrimination based on Plaintiff's disability. Id. The decision states that Plaintiff lost his job in the dining hall when he was sent to administrative segregation. Id. The Director found that there were no dining room positions available after Plaintiff was released from Ad-Seg. Id. For relief, Plaintiff seeks injunctive relief to return to his assignment in dining and stop discrimination, lost wages, and punitive and monetary damages. Id. at 3.

C. Equal Protection Discrimination

Plaintiff does not have a right to a job or program opportunities in prison. Sandin v. Connor, 515 U.S. 472, 484 (1995); Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1997); Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1995). However, Plaintiff does have a constitutional right to be free from unlawful discrimination. With respect to the type of discrimination at issue here, the Equal Protection Clause of the Fourteenth Amendment may be invoked only where similarly situated individuals are being intentionally treated differently without a rational relationship to a legitimate state purpose. Engquist v. Oregon Department of Agriculture, 553 U.S. 591, 601-02 (2008); Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008); North Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008). Therefore, Plaintiff may only invoke the Equal Protection Clause where similarly situated individuals are being intentionally treated differently without a rational relationship to a legitimate state purpose.

In Plaintiff's original petition for habeas relief; Plaintiff's civil rights complaint; or Plaintiff's first amended complaint, Plaintiff does not allege that Defendants selected a non-disabled inmate for a position in the dining room instead of Plaintiff. The director's response to Plaintiff's inmate appeals simply stated that there were no positions available. For these reasons, Plaintiff's equal protection claim fails.

[Plaintiff] simply alleges that he was racially discriminated against as regards his confinement to administrative segregation and his request for a kitchen work assignment. In order to establish a claim for an equal protection violation pursuant to the Fourteenth Amendment, plaintiff must show that he was accorded treatment invidiously dissimilar from that accorded to other inmates, with no rational basis existing for the difference in treatment. Wishon v. Gammon, 978 F.2d. 446, 450 (8th Cir. 1992); Flittie v. Solem, 827 F.2d. 276 (8th Cir. 1987). Plaintiff has failed to demonstrate in any way that he has been accorded treatment invidiously dissimilar from that accorded to other similarly situated inmates.

Tooley v. Boyd, 936 F. Supp. 685 (E.D. Mo. 1996). Accordingly, the Court finds that Plaintiff fails to state a cognizable claim for relief under § 1983 based upon Equal Protection.

III. Res Judicata

A. Legal ...


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