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Leslie E. Dewberry v. Daniel Fulks

March 21, 2012

LESLIE E. DEWBERRY,
PLAINTIFF,
v.
DANIEL FULKS, ET AL.,
DEFENDANTS. DOC. 12



FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED/ OBJECTIONS DUE WITHIN THIRTY DAYS

Findings and Recommendations

I. Procedural History, Screening Requirement, and Standard

On April 9, 2010, Plaintiff Leslie E. Dewberry ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. Doc. 1. On March 3, 2011, the Court issued a screening order, dismissing Plaintiff's case, with leave to file an amended complaint. Doc. 9. On May 2, 2011, Plaintiff filed his first amended complaint. Doc. 12.

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, 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.

Section 1983 provides a cause of action for the violation of constitutional or other federal rights by those acting under color of state law. E.g., Patel v. Kent School Dist., 648 F.3d 965, 971 (9th Cir. 2011); Jones, 297 F.3d at 934. For eachdefendant named, Plaintiff must show a causal link between the violation of his rights and an action or omission of the defendant. Iqbal,129 S. Ct. at 1949-50; Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009). There is norespondeat superior liability under § 1983, and each defendant may only be held liable for misconduct directly attributed to him or her. Iqbal, 129 S. Ct. at 1949-50; Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009).

II. Allegations in Plaintiff's First Amended Complaint

In Plaintiff's first amended complaint, he names Daniel Fulks, Associate Warden; M.A. Baires, Correctional Lieutenant; T. Akin, Correctional Lieutenant; and Doe Defendants 1 through 100, who were employed at California Substance Abuse Treatment Facility / Prison at Corcoran.

Am. Compl. at 1-2, Doc. 12.

Plaintiff alleges that on March 3, 2008, his cellmate brought three gallons of pruno (inmate manufactured alcohol) in their cell. Id. at 4. Shortly thereafter, correctional officer S. Williams searched their cell and discovered the pruno. Id. On March 10, 2008, correctional officer A. Lyons issued Plaintiff a rules violation report ("RVR"), charging him with manufacturing alcohol. Id. On March 19, 2008, Defendant Baires held a hearing for the RVR and found Plaintiff guilty. Id. at 5. Plaintiff contends the finding of guilt was arbitrary and capricious and without evidence that Plaintiff had predisposed intent or active collusion with his cellmate to violate the regulation. Id. The finding of guilty caused Plaintiff loss of credits, loss of privileges, increase in classification score, and a disciplinary record to be viewed adversely by the Board of Prison hearings. Id. For relief, Plaintiff seeks to expunge the disciplinary action, restore credits, restore his classification score, and compensatory damages. Id. at 3.

III. Legal Standard and Analysis for Plaintiff's Claims

A. Claims Arising from Inmate Appeals Decisions

Plaintiff's claims against Defendants arise from their involvement in the inmate appeals process. Plaintiff cannot pursue any claims against staff for violation of the Due Process Clause relating to their involvement in the administrative review of his inmate appeals. The existence of an inmate appeals process does not create a protected liberty interest upon which Plaintiff may base a claim that he was denied a particular result or that the appeals process was deficient. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). To state a claim under ยง 1983, Plaintiff must demonstrate personal involvement in the underlying violation of his rights, Iqbal, 129 S. Ct. at 1949; Jones, 297 F.3d at 934, and liability may ...


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