The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION, WITH PREJUDICE, FOR FAILURE TO STATE ANY CLAIMS UNDER SECTION 1983 (Doc. 11) THIRTY-DAY OBJECTION DEADLINE
Findings and Recommendations Following Screening of Amended Complaint
I. Screening Requirement and Standard
Plaintiff Joseph S. Terrill, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on January 24, 2011. On February 22, 2012, the Court screened Plaintiff's complaint and dismissed it, with leave to amend, for failure to state a claim. 28 U.S.C. § 1915A. Plaintiff filed an amended complaint on March 28, 2012.
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an 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, 678, 129 S.Ct. 1937 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (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) (internal quotation marks and citation omitted). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678.
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, but the pleading standard is now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), and to survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The Court is mindful of its obligation toward pro se litigants in civil rights cases, Akhtar v. Mesa, ___, F.3d ___, ___, No. 11-16629, 2012 WL 5383038, at *8 (9th Cir. Nov. 5, 2012), but the sheer possibility that a defendant acted unlawfully is not sufficient and mere consistency with liability falls short of satisfying the plausibility standard, Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.
Plaintiff, who is currently incarcerated at California State Prison-Solano, brings this action against N. Grannis, Chief of the Inmate Appeals Branch; Warden Ken Clark; Correctional Counselor
A. Rivera; Correctional Lieutenants D. Snell and R. A. Rodriguez; Appeals Coordinator R. Hall; AGPA L. Zinani;*fn1 and Correctional Officers P. Ward and Marquez for violating his rights under the United States Constitution while he was incarcerated at California Substance Abuse Treatment Facility and State Prison (CSATF) in Corcoran, California.
Plaintiff's six "claims" were previously reviewed by the Court and Plaintiff was provided with notice of the deficiencies and the opportunity to amend.*fn2 Plaintiff's amended complaint is virtually identical to his original complaint and none of the deficiencies previously identified has been cured. For the reasons which follow, the Court recommends dismissal of this action for failure to state any claims under section 1983.
A. Claim 1 - Appeal of Decision to Validate Plaintiff as a Gang Member/Affiliate
In his amended complaint, Plaintiff alleges that on May 1, 2008, he filed his second inmate appeal complaining that prison officials had "illegally" labeled him a gang member or affiliate, in violation of prison policy, and seeking the expungement of any gang affiliation references from his central file (c-file). (Doc. 11, Amend. Comp., ¶15.) On June 5, 2008, Plaintiff's appeal was reviewed and denied by Defendant Pratti at the first level of review. (Id., ¶16.) Plaintiff alleges that Defendant Pratti lacked knowledge regarding gang documentation and the procedural safeguards, and that Pratti acted with deliberate indifference when he stated that CDCR (California Department of Corrections and Rehabilitation) had been consistently documenting Plaintiff's suspected gang involvement. (Id.)
On July 23, 2008, Plaintiff's appeal was partially granted at the second level of review by Defendant Gomez in that Gomez ordered the modification of the 128-G chrono to reflect that Plaintiff is a former Crip associate.*fn3 (Id., ¶18.) Plaintiff alleges that his appeal was in effect denied and Defendant Gomez erroneously determined that CDCR had been documenting Plaintiff's gang involvement. (Id.)
On November 26, 2008, Plaintiff's appeal was denied by Defendant Grannis at the Director's Level of review. (Id., ¶19.)
Plaintiff alleges that prison officials' failure to follow their own policies and procedures regarding "critical case information" deprived him of the procedural safeguards designed to protect him from arbitrary determinations of gang involvement, and that being labeled with a gang designation results in Plaintiff being punished for any acts committed by gang members or affiliates -- which includes being subject to lock-downs and the loss of all privileges. (Id., ¶¶21, 22.) Plaintiff denies ever being involved in gangs and he denies being involved in any gang activity in the more than thirty-two years he has been incarcerated. (Id., ¶22.) Plaintiff alleges that he was denied notice and an opportunity to be heard regarding being labeled a former Crip associate. (Id.)
2. Eighth Amendment Claim
The Eighth Amendment protects prisoners from inhumane methods of punishment and from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Extreme deprivations are required to make out a conditions of confinement claim, and only those deprivations denying the minimal civilized measure of life's necessities are sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995 (1992) (citations and quotations omitted). To state a claim for violation of the Eighth Amendment, a prisoner must allege facts sufficient to support a claim that prison officials knew of and disregarded a substantial risk of serious harm to him. E.g., Farmer v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970 (1994); Thomas v. Ponder, 611 F.3d 1144, 1151-52 (9th Cir. 2010); Foster v. Runnels, 554 F.3d 807, 812-14 (9th Cir. 2009); Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). Plaintiff's amended complaint is devoid of any facts which would support a claim against
Defendants Pratti, Gomez, and Grannis for violation of the Eighth Amendment; Plaintiff's allegations demonstrate neither an objectively serious risk of harm nor the requisite subjective mental state. E.g., Farmer, 511 U.S. at 834. Defendants' consideration and denial of Plaintiff's administrative appeal simply does not constitute cruel and unusual punishment. See Myron v. Terhune, 476 F.3d 716, 719 (9th Cir. 2007) (act of classification itself does not amount to infliction of pain).
As Plaintiff was previously informed in the first screening order, the existence of an administrative appeals process does not create any substantive rights and a due process claim cannot be premised upon Defendants Pratti, Gomez, and Grannis' involvement in considering and resolving Plaintiff's inmate appeal.*fn4 Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988).
B. Claim 2 - RVR for Refusal to Take TABE Test and Appeal
On June 2, 2008, Plaintiff filed an inmate appeal against Defendant Snell, the senior hearing officer who adjudicated the rules violation report (RVR) issued against Plaintiff for refusal to take the TABE test and found Plaintiff guilty as charged. (Amend. Comp., ¶24.) Plaintiff alleges that Defendant Snell abused his authority and violated Plaintiff's procedural and substantive due process rights by failing to document that he postponed the disciplinary hearing twice and held the hearing without Plaintiff present, which deprived Plaintiff of his right to question the reporting employee, present documentation, and address the report discrepancies. (Id.)
On July 17, 2008, Defendant Fisher, Jr. interviewed Plaintiff at the first level of review, and Plaintiff expressed concern over Fisher's ability to render an impartial decision concerning an appeal issue that involved his friend of more than twenty years. (Id., ¶25.) Defendant Fisher, Jr. thereafter "inexplicably" ruled against Plaintiff and found no due process violation had occurred with the disciplinary hearing. (Id.)
Plaintiff pursued the appeal to the next level, where it was denied on September 12, 2008, by Defendant Allison on behalf of Defendant Clark. (Id., ¶¶26, 27.) Plaintiff then filed the appeal at the Director's Level of review, where is was denied by Defendant Grannis on January 7, 2009. (Id.)
a. Defendants Fisher, Jr., Clark, Allison, and Grannis
Defendants Fisher Jr., Clark, Allison, and Grannis's actions in reviewing and denying Plaintiff's inmate appeal provide no basis for imposing liability on them under section 1983. Ramirez, 334 F.3d at 860; Mann, 855 F.2d at 640.
Plaintiff was charged with and found guilty by Defendant Snell of refusing to take the TABE test. (Amend. Comp., Ex. B, court record p. 56.) As punishment, Plaintiff was assessed a thirty-day time credit forfeiture and a ninety-day loss of Friday visitation, and he was counseled about his conduct. (Id.)
a) Protected Liberty Interest
The Due Process Clause protects Plaintiff against the deprivation of liberty without the procedural protections to which he is entitled under the law. Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384 (2005). To state a claim, Plaintiff must first identify the interest at stake. Wilkinson, 545 U.S. at 221. Liberty interests may arise from the Due Process Clause or from state law. Id. The Due Process Clause itself does not confer on inmates a liberty interest in avoiding more adverse conditions of confinement, id. at 221-22 (citations and quotation marks omitted), and under state law, the existence of a liberty interest created by prison regulations is determined by focusing on the nature of the condition of confinement at issue, id. at 222-23 (citing Sandin v. Conner, 515 U.S. 472, 481-84, 115 S.Ct. 2293 (1995)) (quotation marks omitted). Liberty interests created by prison regulations are generally limited to freedom from ...