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Neely v. Briggs

United States District Court, E.D. California

April 24, 2015

CHARLES ALBERT NEELY, Plaintiff,
v.
R.L. BRIGGS, et al., Defendants.

ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF [ECF No. 1]

STANLEY A. BOONE, Magistrate Judge.

Plaintiff Charles Albert Neely is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

Plaintiff filed the instant complaint on January 22, 2015, in the United States District Court for the Northern District of California. The action was transferred to this Court on February 3, 2015.

I.

SCREENING REQUIREMENT

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 "fails to state a claim on which relief may be granted, " or that "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).

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 (2009) (citing Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each named defendant personally participated in the deprivation of his rights. Iqbal , 556 U.S. at 676-677; Simmons v. Navajo County, Ariz. , 609 F.3d 1011, 1020-1021 (9th Cir. 2010).

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, Wilhelm v. Rotman , 680 F.3d 1113, 1121 (9th Cir. 2012) (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 678-79; Moss v. U.S. Secret Serv. , 572 F.3d 962, 969 (9th Cir. 2009). The "sheer possibility that a defendant has acted unlawfully" is not sufficient, and "facts that are merely consistent with' a defendant's liability" falls short of satisfying the plausibility standard. Iqbal , 556 U.S. at 678; Moss , 572 F.3d at 969.

II.

COMPLAINT ALLEGATIONS

Plaintiff names Chief Appeal R.L. Briggs, Appeals Examiner, D. Artis, and Warden J.W. Moss as Defendants.

Plaintiff's inmate appeal was processed as an appeal inquiry only, when it should have been processed as a staff complaint. Contrary to what was reported, staff "did" violate the California Department of Corrections and Rehabilitation (CDCR) policy and Plaintiff can prove it. Plaintiff requested repeatedly in the inmate appeal that Ricardo Ramirez be questioned as a witness, to no avail. Ricardo Ramirez can verify what he heard because he was in the office next door when the "incident" occurred. The video footage confirms his presence and he can provide testimony that officer Ruffin was inappropriately vulgar and therefore violated CDCR policy.

III.

DISCUSSION

A. Inmate Appeals

"The Fourteenth Amendment's Due Process Clause protects persons against deprivations of life, liberty, or property; and those who seek to invoke its procedural protection must establish that one of these interests is at stake." Wilkinson v. Austin , 545 U.S. 209, 221 (2005). Plaintiff does not a have protected liberty interest in the processing of his appeals, and therefore, he cannot pursue a claim for denial of due process with respect to the handling or resolution of his appeals. Ramirez v. Galaza , 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann v. Adams , 855 F.2d 639, 640 (9th Cir. 1988)).

Thus, Defendants' actions in responding to Plaintiff's appeals, alone, cannot give rise to any claims for relief under section 1983 for violation of due process. As a consequence, because Plaintiff has neither a liberty interest, nor a substantive right in inmate appeals, Plaintiff fails to state a cognizable claim for the processing and/or reviewing of his 602 inmate appeals.

B. Verbal Threats

Verbal harassment or abuse alone is not sufficient to state a claim under section 1983, Oltarzewski v. Ruggiero , 830 F.2d 136, 139 (9th Cir. 1987), and threats do not rise to the level of a constitutional violation, Gaut v. Sunn , 810 F.2d 923, 925 (9th Cir. 1987). Indeed, in Gaut, the Ninth Circuit expressly held that "it trivializes the [E]ighth [A]mendment to believe a threat constitutes a constitutional wrong." Id.

Plaintiff's claim that a certain officer was inappropriately vulgar to him, fails to state a cognizable constitutional violation. Accordingly, Plaintiff's complaint with be dismissed, with leave to amend.

IV.

CONCLUSION AND ORDER

For the reasons stated, Plaintiff's complaint fails to state a claim upon which relief may be granted. Plaintiff is granted leave to file an amended complaint within thirty (30) days. Noll v. Carlson , 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff may not change the nature of this suit by adding new, unrelated claims in his amended complaint. George v. Smith , 507 F.3d 605, 607 (7th Cir. 2007) (no "buckshot" complaints).

Plaintiff's amended complaint should be brief, Fed.R.Civ.P. 8(a), but must state what each named defendant did that led to the deprivation of Plaintiff's constitutional or other federal rights. Iqbal , 556 U.S. 662, 678. "The inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation." Leer v. Murphy , 844 F.2d 628, 633 (9th Cir. 1988). Although accepted as true, the "[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level...." Twombly , 550 U.S. at 555 (citations omitted).

Finally, an amended complaint supersedes the original complaint, Forsyth v. Humana, Inc. , 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh , 814 F.2d 565, 567 (9th Cir. 1987), and must be "complete in itself without reference to the prior or superseded pleading, " Local Rule 220. "All causes of action alleged in an original complaint which are not alleged in an amended complaint are waived." King , 814 F.2d at 567 (citing to London v. Coopers & Lybrand , 644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth , 114 F.3d at 1474.

Based on the foregoing, it is HEREBY ORDERED that:

1. The Clerk's Office shall send Plaintiff a civil rights complaint form;
2. Plaintiff's complaint, filed January 22, 2015, is dismissed for failure to state a claim;
3. Within thirty (30) daysfrom the date of service of this order, Plaintiff shall file an amended complaint; and
4. If Plaintiff fails to file an amended complaint in compliance with this order, this action will be dismissed, with prejudice, for failure to state a claim.

IT IS SO ORDERED.


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