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Hill v. Kernan

United States District Court, E.D. California

November 18, 2019

KENNETH HILL, Plaintiff,
v.
SCOTT KERNAN, et al., Defendants.

          ORDER

          DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE.

         Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

         Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.

         Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

         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 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).

         II. Pleading Standard

         A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.

         A complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

         III. Plaintiff's Allegations[1]

         Plaintiff's claims, which arose while he was incarcerated at High Desert State Prison (“HDSP”), are asserted against the following individuals: Scott Kernan, Secretary of the California Department of Corrections and Rehabilitation (“CDCR”); M.E. Spearman, HDSP Warden; T. Foss, HDSP Chief Deputy Warden; R. Robertson, HDSP Associate Warden; D. Furtado, CCII; K. Holmes, Sergeant; S. Wagner, Correctional Officer (“CO”); T. Young, CO; A. Brown, CO; J. Spinney, Lieutenant; M. Brown, Lieutenant; and A. Lynn, CCI.

         Plaintiff's allegations may be fairly summarized as follows:

         A. First Disciplinary Action

         On March 10, 2016, CO Young filed a false charge against plaintiff for disobeying orders into the Strategic Offender Management System (“SOMS”) in retaliation for a complaint of harassment plaintiff made against him. CCII Furtado improperly classified CO Young's false report as a CDCR Form 115 (a Rules Violation Report [“RVR”]). On March 21, 2016, CO A. Brown purported to give plaintiff a copy of the RVR but instead provided only a copy of the SOMS Disciplinary Module printout. When plaintiff complained that this was not a proper RVR, CO A. Brown responded, “that's how we're doing it now.”

         On April 3, 2016, a disciplinary hearing was held by Lt. Spinney on the charges included in the SOMS Disciplinary Module printout. During the hearing, plaintiff complained that the charges were false and that he never received a proper RVR form as required by institutional regulations. Lt. Spinney, like Lt. Brown earlier, told plaintiff that these were the forms they were using now and that a “Notice of Change to Regulation [‘NCR']” had been circulated to the inmate population regarding the change. Plaintiff denied having received the NCR, in violation of the Administrative Procedures Act (“APA”). In fact, plaintiff alleges that the NCR was not even issued until June 2016, after the disciplinary hearing. In addition, the SOMS Disciplinary Module printout failed to comply with specific procedural requirements, including listing plaintiff's TABE score or his requested witnesses, rendering the ...


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