The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Plaintiff is a state prisoner proceeding pro se. He seeks relief pursuant to 42 U.S.C. § 1983 and has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).
Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). Plaintiff has been without funds for six months and is currently without funds. Accordingly, the court will not assess an initial partial filing fee. 28 U.S.C. § 1915(b)(1). Plaintiff is obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments shall be collected and forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
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).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.
A complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, ___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. at 1974). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848, 1850 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1849 (1969).
For the reasons outlined below, the complaint will be dismissed in part with leave to amend within twenty-eight days of the filing date of this order.
Plaintiff essentially seeks relief in connection with his validation as a member of the Black Gorilla Family ("BGF"), and resulting placement in SHU for an indefinite term. He alleges that certain defendants conspired to validate him and fabricated evidence against him in support of the validation because, among other things, he had filed a lawsuit against a prison official. He similarly alleges that the evidence in the record is insufficient to sustain his validation, and that defendants violated his due process rights during the validation and classification proceedings.
Plaintiff also alleges that certain defendants endangered his life in violation of the Eighth Amendment because the defendants disclosed to other prisoners that plaintiff had suffered a conviction for rape, and also inserted into plaintiff's file a chrono reading that he should be placed only with members of the BGF.
Plaintiff further alleges that defendants Perez and McDonald changed his release date, in violation of the Due Process Clause of the Fourteenth Amendment and the Ex Post Facto Clause. He claims that the change was made based on Senate Bill x3-18, which he does not describe.
Attached to plaintiff's complaint is a Third Level Appeal Decision, dated August 30, 2011, in which A. Altamirano and D. Foston denied plaintiff's appeal of his good time credit calculation. See Complaint, Ex. P, Doc. No. 1-2 at 27. According to that decision, plaintiff appears to be ineligible to earn credits while he is, among other things, in administrative segregation or validated as a gang member. Altimirano and Foston note that plaintiff has based his appeal on Senate Bill x3-18, but do not refer to it as authority for the decision.
As relief, plaintiff seeks, among other things, restoration of his prior release date; reversal of his gang validation; and money damages.
Habeas Corpus and Civil Rights
Federal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus, 28 U.S.C. 2254, and a complaint under the Civil Rights Act of 1871, Rev. Stat. 1979, as amended, 42 U.S.C. § 1983. Muhammad v. Close, 540 U.S. 749, 750, 124 S.Ct. 1303, 1304-1305 (2004) (per curiam). Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus, Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); requests for relief turning on circumstances of confinement may be presented in a § 1983 action. Muhammad v. Close, 540 U.S. at 750. Some cases are hybrids, with a prisoner seeking relief unavailable in habeas, notably damages, but on allegations that not only support a claim for recompense, but imply the invalidity either of an underlying conviction or of a particular ground for denying release short of serving the maximum term of confinement. Id. at 750-51.
In Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), the United States Supreme Court held that where success in a prisoner's §1983 damages action would implicitly question the validity of conviction or duration of sentence, the litigant must first achieve favorable termination of his available state, or federal habeas, opportunities to challenge the underlying conviction or sentence. See Muhammad v. Close, 540 U.S. at 751. Accordingly, in Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997), the Supreme Court applied Heck in the circumstances of a §1983 action claiming damages and equitable relief for a procedural defect in a prison's administrative process, where the administrative action taken against the plaintiff could affect credits toward release based on good-time served. See Muhammad v. Close, 540 U.S. at 751. In each instance, conditioning the right to bring a § 1983 action on a favorable result in state litigation or federal habeas served the practical objective of preserving limitations on the availability of habeas remedies. Id.
Federal petitions for habeas corpus may be granted only after other avenues of relief have been exhausted. 28 U.S.C. § 2254(b)(1)(A). See Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Prisoners suing under § 1983, in contrast, generally face a substantially lower gate, even with the requirement of the Prison Litigation Reform Act of 1995 that administrative opportunities be exhausted first. 42 U.S.C. § 1997e(a); Muhammad v. Close, 540 U.S. at 751. Heck's requirement to resort to state litigation and federal habeas before § 1983 is not, however, implicated by a prisoner's challenge that threatens no consequence for his conviction or the duration of his sentence. Muhammad v. Close, 540 U.S. at 751.
The Ninth Circuit has held that
California's policy of assigning suspected gang affiliates to the SHU is not a disciplinary matter, but an administrative strategy designed to preserve order in the prison and protect the safety of all inmates. Although there are some minimal legal limitations,....the assignment of inmates within the California prisons is essentially a matter of administrative discretion.
Munoz v. Rowland, 104 F.3d 1096, 1098 (9th Cir. 1997) (citations omitted). See also Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir. 2003). It would appear, then, that, because validation decisions are not disciplinary, plaintiff may pursue his claims against the defendants in a civil rights complaint. However, plaintiff also appears to be raising challenges to the calculation of his release date. According to at least one exhibit, his release date appears to be impacted by his validation, and by his administrative segregation. This would suggest that plaintiff's challenges to his validation are more appropriately brought in a habeas proceeding, since the validation, even though administrative, has the effect of impacting plaintiff's release date.
As explained below, it is not currently clear if plaintiff seeks to challenge the calculation itself, or simply defendants' failure to notify him of the new calculation. It is also not clear whether the validation is the basis for the change in plaintiff's release date. Accordingly, the court cannot currently assess whether plaintiff's § 1983 claims are barred by Heck, or whether they are more appropriately raised in a habeas petition. The court notes these issues, though, so that plaintiff may be guided appropriately when amending his complaint.
Plaintiff alleges that defendants Fleming, Amero, Brackett and Harrison targeted plaintiff for validation and SHU confinement because (1) of the way plaintiff to spoke to defendant Harrison after a prison riot, and (2) of plaintiff's civil action against non-defendant Wright. Plaintiff has articulated a cognizable First Amendment retaliation cause of action against defendants Fleming, Amero, Brackett and Harrison. See Bruce v. Ylst, 351 F.3d at 1289.
Plaintiff alleges that defendants Perez, Fleming, Brackett, Harrison, Audette, St. Andre, A. Amero, R. Marquez, J. Harrison, A. Murphy, F. Foulk, and Bryan Kingston violated plaintiff's First Amendment rights by basing his gang validation on the content of a newsletter found in plaintiff's cell. Plaintiff alleges that defendants are retaliating against him for ...