United States District Court, E.D. California
ORDER DISMISSING ACTION WITH PREJUDICE FOR FAILURE TO
STATE A CLAIM ECF, 13 DISMISSAL COUNTS AS A STRIKE PURSUANT
TO 28 U.S.C. § 1915(g) CLERK TO TERMINATE ALL PENDING
MOTIONS AND CLOSE CASE
Michael J. Seng Judge
is a state prisoner proceeding pro se and in forma pauperis
in this civil rights action brought pursuant to 42 U.S.C.
§ 1983. (ECF Nos. 1 & 4.) Plaintiff has consented to
Magistrate Judge jurisdiction. (ECF No. 8.) No other parties
have appeared in the action.
August 5, 2015, Plaintiff filed his first civil rights
complaint. (ECF No. 1.) On February 4, 2016, the Court issued
an initial screening order dismissing Plaintiff's
complaint with leave to amend. (ECF No. 11.) Plaintiff filed
the instant first amended complaint on March 10, 2016. (ECF
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,
malicious, " or 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. §
1983 "provides a cause of action for the deprivation of
any rights, privileges, or immunities secured by the
Constitution and laws of the United States." Wilder
v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990)
(quoting 42 U.S.C. § 1983). Section 1983 is not itself a
source of substantive rights, but merely provides a method
for vindicating federal rights conferred elsewhere.
Graham v. Connor, 490 U.S. 386, 393-94 (1989).
state a claim under § 1983, a plaintiff must allege two
essential elements: (1) that a right secured by the
Constitution or laws of the United States was violated and
(2) that the alleged violation was committed by a person
acting under the color of state law. See West v.
Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda
Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).
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 set
forth "sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face."
Id. Facial plausibility demands more than the mere
possibility that a defendant committed misconduct and, while
factual allegations are accepted as true, legal conclusions
are not. Id. at 677-78.
acts giving rise to this complaint occurred at California
Correctional Institution ("CCI") where Plaintiff
was incarcerated. He names CCI Chief Deputy Warden J.
Gutierrez as Defendant.
claims arise from his confinement in the Security Housing
Unit ("SHU") at CCI. Documents attached to
Plaintiff's complaint reflect the following background
facts, relevant to his allegations:
18, 2013, while housed at Salinas Valley State Prison,
Plaintiff received a Rules Violation Report ("RVR")
for Battery on an Inmate with Serious Bodily Injury. He was
assessed a 24 month SHU term with a minimum eligible release
date ("MERD") of December 18, 2014. Subsequently,
Plaintiff received three additional "SHU-able" RVRs
while at SVSP and, later, at CCI: (1) on August 10, 2013, for
Threatening Violence Against Staff for which he was assessed
a 9 month SHU term with a MERD of March 3, 2014; (2) on
February 17, 2014, for Refusing Housing; and (3) on March 25,
2014, for Refusing to Accept Assigned housing. For the latter
two offenses, Plaintiff was assessed a 3 month mitigated
consecutive SHU term with a controlling MERD of August 26,
appealed the RVR for Battery on an Inmate with Serious Bodily
Injury and on March 21, 2014, a Modification Order was issued
ordering Plaintiff's RVR be reissued/re-heard due to
evidentiary issues. The charges were re-adjudicated on April
13, 2014 and, on April 22, 2014, the RVR was signed off on by
the Chief Disciplinary Officer. Plaintiff's 24 month SHU
term for Battery on an Inmate with Physical Injury was
October 3, 2014 Plaintiff was transferred to CCI and placed
in the SHU. Upon Plaintiff's arrival at CCI he informed
Defendant that he was being held illegally in the SHU as he
"had no lock-up order or RVR." On December 18,
2014, Defendant audited Plaintiff's RVR and concluded
that the guilty charge of Battery on an Inmate with Serious
Bodily Injury was not supported by the evidence presented at
the April 13, 2014 hearing. Accordingly, on January 5, 2015,
Defendant Gutierrez notified Plaintiff that the charge would
be modified and reduced to Battery on an Inmate.
Plaintiff's 24 month SHU term was voided. Plaintiff was
scheduled for the Institutional Classification Committee
("ICC") to reassess his SHU term, given that
Plaintiff had received two additional SHU terms for unrelated
offenses, and Battery on an Inmate still qualified as a
"SHU-able" offense. On January 22, 2015, the CCI
Chief Disciplinary officer imposed an 18 month SHU term.
states Defendant wrongly reduced, rather than dismissed, the
charges against Plaintiff without first holding a hearing.
Plaintiff further alleges the time limitations pursuant to
California Code of Regulations title 15, section 3313(c) had
run out and the "third level modification order"
was never carried out. Defendant also is alleged to ...