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Tobias A. Frank v. Derrick Schultz

April 29, 2013

TOBIAS A. FRANK,
PLAINTIFF,
v.
DERRICK SCHULTZ, ET AL.,
DEFENDANTS



The opinion of the court was delivered by: Suzanne H. Segal United States Magistrate Judge

MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

I.

INTRODUCTION

On February 11, 2013, Plaintiff Tobias A. Frank, a federal prisoner proceeding pro se, filed a complaint alleging violations of his civil rights pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). (Dkt. No. 12). For the reasons stated below, the Complaint is dismissed with leave to amend.*fn1

Congress mandates that district courts initially screen civil complaints filed by prisoners seeking redress from a governmental entity or employee. 28 U.S.C. § 1915A(b). This Court may dismiss such a complaint, or any portions thereof, before service of process if the Court concludes that the complaint (1) is frivolous or malicious, (2) fails to state a claim upon which relief can be granted, or (3) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b) (1)-(2); see also Lopez v. Smith, 203 F.3d 1122, 1126-27 & n.7 (9th Cir. 2000) (en banc).

II.

ALLEGATIONS OF THE COMPLAINT

The Complaint names as defendants three employees of the Federal Bureau of Prisons ("BOP"): (1) Derrick Schultz, a correctional counselor at Victorville Med. II; (2) R. Byrd, a disciplinary hearing officer at Victorville Med. II; and (3) Juan D. Castillo, the Western Regional Director of the BOP. (Complaint at 1). Defendants are sued in both their individual and official capacities. (Id.).

While Plaintiff's specific claims are not entirely clear, the gravamen of the Complaint appears to argue that Defendants violated Plaintiff's constitutional rights by unlawfully imposing administrative sanctions on him for serving as a witness to the signing of another prisoner's legal documents. Plaintiff contends that on or about May 24, 2012, Defendant Schultz, in reviewing the institutional mail, observed that Plaintiff had signed another inmate's legal documents as a witness. (Id. at 2). Although Plaintiff asserts that no one ever told him that such conduct was prohibited, Defendant Schultz filed an incident report in which he stated that by signing the other inmate's documents, Plaintiff had been in possession of unauthorized material in violation of Code 305's broad prohibition on the possession by an inmate of "anything unauthorized." (Id.). The incident report was referred to Defendant Byrd on or about May 31, 2012. (Id.).

A disciplinary hearing was held on July 6, 2012 in which Defendants Schultz and Byrd found Plaintiff guilty of violating Code 305. (Id. at 2; id., Exh. C). Plaintiff's conviction appears to have been based solely on Defendants' belief that "Plaintiff's signature . . . on the documents means that Plaintiff possessed the documents at some point in time." (Id. at 3). However, Plaintiff was not provided with a written statement of the specific evidence Defendants relied on and the reasons for the disciplinary actions taken. (Id. at 2). As punishment, Defendant Byrd revoked fourteen days of Plaintiff's good-time credits and three months of commissary visits and visitation rights. (Id. at 3). Morever, Plaintiff alleges that even though he was punished, Defendant Byrd expunged the incident reports of the two other inmates who were charged for the same conduct. (Id.).

Plaintiff appealed his conviction to Defendant Castillo. (Id.). On September 20, 2012, Defendant Castillo granted partial relief and expunged Plaintiff's incident report. (Id., Exh. C). However, Plaintiff alleges that despite the expungement, Defendants failed to restore Plaintiff's forfeited good-time credits and visitation and commissary privileges.*fn2 (Complaint at 3).

III.

PLAINTIFF'S CLAIMS

Plaintiff claims that by imposing sanctions for signing legal documents, Defendants Schultz and Byrd violated Plaintiff's First Amendment rights of expression and association. (Complaint at 4). Furthermore, Plaintiff alleges that Defendants Schultz and Byrd denied him due process of law by failing to give fair notice or warning regarding the prohibited conduct. (Id.). Also, Plaintiff claims that Defendants Schultz and Byrd failed to provide any evidence ...


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