Sims v. Gutierrez

          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

         Plaintiff 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.

         On 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 No. 13.)

         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, 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. § 1915(e)(2)(B)(ii).

         II. PLEADING STANDARD

         Section 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).

         To 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).

         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 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.

         III. PLAINTIFF'S ALLEGATIONS

         The 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.

         Plaintiff's 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:

         On June 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, 2015.

         Plaintiff 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 upheld.

         On 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.

         Plaintiff 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 ...