(PC) Whitely v. Lebeck

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 EVERTON WHITELY, No. 2:17-cv-2107 AC

12 Plaintiff,

13 v. ORDER

14 J. LEBECK, et al.,

15 Defendants.

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17 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and

18 has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

19 I. Application to Proceed In Forma Pauperis

20 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C.

21 § 1915(a). ECF No. 7. Accordingly, the request to proceed in forma pauperis will be granted.

22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C.

23 §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in

24 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct

25 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and

26 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments

27 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account.

28 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time

1 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C.

2 § 1915(b)(2).

3 II. Statutory Screening of Prisoner Complaints

4 The court is required to screen complaints brought by prisoners seeking relief against a

5 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

6 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

7 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[]

8 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b).

9 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.”

10 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

11 Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal

12 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639,

13 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as

14 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a

15 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis.

16 Franklin, 745 F.2d at 1227-28 (citations omitted).

17 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the

18 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of

19 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550

20 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

21 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context

22 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman,

23 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure

24 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a

25 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the

26 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he pleading must contain

27 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally

28 ////

1 cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur

2 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)).

3 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

4 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

5 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual

6 content that allows the court to draw the reasonable inference that the defendant is liable for the

7 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this

8 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg.

9 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the

10 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor,

11 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted).

12 III. Complaint

13 Plaintiff characterizes his first claim as involving violation of his rights under the Fifth

14 and Ninth Amendments. He alleges that on February 24, 2016 Correctional Officer Lebeck tried

15 to move him to an upper bunk in a different cell, contrary to plaintiff’s disability accommodation

16 chrono for a lower bunk. Following their disagreement about this assignment, Lebeck wrote a

17 false Rules Violation Report (RVR) accusing plaintiff of disobeying a direct order. This was

18 deliberate racial harassment. Lt. Hobart found plaintiff guilty of the RVR, in collusion with

19 Lebeck. The guilty finding was later overturned on grounds of a due process violation.

20 Claim Two asserts violations of the First, Fifth and Eighth Amendments. Plaintiff alleges

21 that on March 2, 2016, Officer Lebeck falsified documents related to plaintiff’s placement in

22 administrative segregation (ad seg). Plaintiff was placed in ad seg due to Lebeck’s racial

23 harassment and in retaliation for a prior, unrelated incident. Lebeck’s false statement was a

24 representation that plaintiff had expressed concern for his own safety on the general population

25 yard. The false statement was racially motivated. Defendants Mcleod, Reames, Jochim and

26 Hampton are alleged to have participated in various ways in plaintiff’s harassment by Lebeck and

27 placement in ad seg on false pretenses. Plaintiff was not screened prior to ad seg placement, in

28 violation of due process. Lt. Hampton, who signed the ad seg order, violated Title 15 of the Cal.

1 Code of Regulations. Plaintiff was held in ad seg for nine days during the investigation into his

2 falsely-reported security concerns. A meeting of the Institution Classification Committee was

3 held to review plaintiff’s placement on March 11, 2016. Plaintiff wanted to attend but no officers

4 ever came to escort him; it was falsely reported that he refused to attend. This demonstrates

5 collusion among staff, including Chief Deputy Warden Baughman, to cover up Lebeck’s false

6 allegations against plaintiff. Plaintiff’s subsequent appeals were ignored or cancelled by

7 defendants Buchmiller, Frederick and Reames. Lebeck’s false statements were retaliatory, and

8 caused plaintiff to be attacked by another inmate on September 16, 2016. The falsified

9 documents thus violated plaintiff’s Eighth Amendment right to safety.

10 Claim Three asserts First and Eighth Amendment violations arising from another RVR

11 written by Lebeck. On March 19, 2016, plaintiff refused a cell reassignment that was

12 incompatible with his disability accommodations. Lebeck falsely documented that plaintiff had

13 no valid reason to accept the reassignment. Lebeck was motivated by his grudge against plaintiff

14 for repeatedly “exercising his legal constitutional right to deny a cellmate.” Lebeck’s false

15 statements about plaintiff’s security concerns caused plaintiff to be suspected as a snitch, which

16 led to his assault by another inmate on September 16, 2016.

17 IV. Failure to State a Claim

18 A. Claim One

19 Claim One is primarily concerned with Lebeck’s allegedly false statements in the

20 February 2016 RVR. False statements by a correctional officer do not violate an inmate’s

21 constitutional rights and cannot, based on alleged falsity alone, support a claim under 28 U.S.C. §

22 1983. See Buckley v. Gomez, 36 F. Supp. 2d 1216, 1222 (S.D. Cal. 1997) (prisoners have no

23 constitutional right to be free from wrongfully issued disciplinary reports), aff’d without opinion,

24 168 F.3d 498 (9th Cir. 1999); accord, Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989)

25 (“Sprouse’s claims based on the falsity of the charges and the impropriety of Babcock’s

26 involvement in the grievance procedure, standing alone, do not state constitutional claims.”);

27 Freeman v. Rideout, 808 F.2d 949, 951 (2nd Cir. 1986) (“The prison inmate has no

28 constitutionally guaranteed immunity from being falsely or wrongly accused of conduct which

1 may result in the deprivation of a protected liberty interest.”); Hanrahan v. Lane, 747 F.2d 1137,

2 1141 (7th Cir. 1984) (“[A]n allegation that a prison guard planted false evidence which implicates

3 an inmate in a disciplinary infraction fails to state a claim for which relief can be granted where

4 the procedural due process protections . . . are provided.”). As long as prison disciplinary charges

5 are supported by “some evidence,” due process is satisfied. Superintendent v. Hill, 472 U.S. 445,

6 454 (1985).

7 Plaintiff also alleges that Lebeck’s false statements constituted racial harassment.

8 Racially motivated false statements might implicate plaintiff’s equal protection rights. “Prisoners

9 are protected under the Equal Protection Clause . . . from invidious discrimination based on race.”

10 Wolff v. McDonnell, 418 U.S. 539, 556 (1974). To state a claim for violation of the Equal

11 Protection Clause, a plaintiff must show that the defendant acted with an intent or purpose to

12 discriminate against him based upon his membership in a protected class. Barren v. Harrington,

13 152 F.3d 1193, 1194 (9th Cir. 1998). Here, plaintiff has not stated any facts that would support

14 an inference Lebeck was motivated by racial hostility. The complaint contains no allegations

15 regarding race other than the wholly conclusory allegation of “racial harassment,” which is

16 inadequate to state a claim.

17 Plaintiff alleges further that Lebeck was retaliating against him. Retaliation supports

18 relief under § 1983 only where a plaintiff alleges retaliation for constitutionally protected

19 conduct. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). In Claim One, plaintiff alleges only

20 that Lebeck was retaliating for a prior unrelated incident. Without details, the court cannot assess

21 whether that prior incident involved constitutionally protected conduct. “Within the prison

22 context, a viable claim of First Amendment retaliation entails five basic elements: (1) An

23 assertion that a state actor took some adverse action against an inmate (2) because of (3) that

24 prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First

25 Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.”

26 Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (fn. and citations omitted). Claim One

27 does not include factual allegations to support these elements. Accordingly, it fails to state a

28 retaliation claim.

1 For all these reasons, Claim One does not state a claim for relief as pled. Plaintiff will be

2 given an opportunity to amend.

3 B. Claim Two

4 Claim Two is primarily concerned with plaintiff’s placement in ad seg in March 2016. To

5 the extent that Claim Two seeks relief on grounds that Lebeck made false statements about

6 plaintiff, and was motivated by racial and/or retaliatory animus, the claim fails for the reasons

7 explained as to Claim One. Because the allegations against Lebeck are insufficient to state a

8 claim, the allegations that other defendants colluded with Lebeck necessarily also fail.

9 To the extent that plaintiff seeks relief for violation of his procedural due process rights,

10 he also fails to state a claim. Regardless of Title 15 requirements, which cannot be enforced

11 under § 1983,1 when an inmate is place in ad seg the Constitutional requires only that he be given

12 an “an informal, nonadversary review of the information supporting [his] administrative

13 confinement, including whatever statement [he] wishe[s] to submit, within a reasonable time after

14 confining him to administrative segregation.” Hewitt v. Helms, 459 U.S. 460, 472 (1983),

15 overruled on other grounds by Sandin v. Conner, 515 U.S. 472 (1995). The allegations of the

16 complaint do not identify any violation of the Hewitt requirements.

17 To the extent that plaintiff seeks relief for the handling of his inmate appeals, he has not

18 identified conduct that violates the constitution. Inmates lack a liberty interest in the processing

19 of an inmate appeal because there is no “separate constitutional entitlement to a specific prison

20 grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann v.

21 Adams, 855 F.2d 639, 640 (9th Cir. 1988)). A prison official’s denial of an inmate appeal thus

22 does not qualify as a constitutional violation. Id.

23 Finally, plaintiff alleges that Lebeck’s false statements about his security concerns led to

24 his assault by another inmate. This allegation suggests a failure to protect claim under the Eighth

25 Amendment. Prison officials have an obligation to protect prisoners from injury by other

26 prisoners. Farmer v. Brennan, 511 U.S. 825, 833-34 (1994). The Eighth Amendment is only

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1 28 U.S.C. § 1983 provides a remedy for violation of federal rights only. Violation of state

28 prison regulations does not support a private cause of action.

1 violated, however, when a defendant acts with a sufficiently culpable state of mind. See Wilson

2 v. Seiter, 501 U.S. 294, 297 (1991). Accordingly, to state an Eighth Amendment claim for failure

3 to protect, a plaintiff must plead facts demonstrating that the defendants knew of and disregarded

4 an excessive risk to inmate health or safety. Farmer, 511 U.S. at 837. “[T]he official must both

5 be aware of facts from which the inference could be drawn that a substantial risk of serious harm

6 exists, and he must also draw the inference.” Id. This is the standard for deliberate indifference.

7 The allegations of the complaint do not support a failure to protect claim against Lebeck, because

8 they do not demonstrate that Lebeck knew he was creating an excessive risk of harm to plaintiff.

9 For all these reasons, Claim Two does not state a claim for relief as pled. Plaintiff will be

10 given an opportunity to amend.

11 C. Claim Three

12 Claim Three also alleges false statements by Lebeck, and fails to state a claim for relief on

13 that basis for the reasons previously explained. Plaintiff’s allegations of retaliation in Claim

14 Three also fail to state a claim. Retaliation for refusal of a cellmate does not violate the First

15 Amendment because, contrary to plaintiff’s theory, such refusal is not constitutionally protected

16 speech. The First Amendment protects an inmate’s right to litigate and to file grievances. Silva

17 v. Di Vittorio, 658 F.3d 1090, 1104 (9th Cir. 2011). It does not extend to verbal interactions with

18 correctional staff. See, e.g., Lockett v. Suardini, 526 F.3d 866, 874 (6th Cir. 2008); Smith v.

19 Mosley, 532 F.3d 1270, 1277 (11th Cir. 2008); Garrido v. Coughlin, 716 F. Supp. 98, 99-101

20 (S.D.N.Y. 1989).

21 Plaintiff’s failure to protect claim is more clearly articulated in Claim Three than in Claim

22 Two, but again fails to allege facts showing that Lebeck knew his report to other officials would

23 create an excessive risk that plaintiff would be harmed by other inmates.

24 For all these reasons, Claim Three does not state a claim for relief as pled. Plaintiff will

25 be given an opportunity to amend.

26 V. Leave to Amend

27 If plaintiff chooses to file a first amended complaint, he must demonstrate how the

28 conditions about which he complains resulted in a deprivation of his constitutional rights. Rizzo

1 v. Goode, 423 U.S. 362, 370-71 (1976). Also, the complaint must allege in specific terms how

2 each named defendant is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th

3 Cir. 1981). There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link

4 or connection between a defendant’s actions and the claimed deprivation. Id.; Johnson v. Duffy,

5 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, “[v]ague and conclusory allegations of official

6 participation in civil rights violations are not sufficient.” Ivey v. Bd. of Regents, 673 F.2d 266,

7 268 (9th Cir. 1982) (citations omitted).

8 Plaintiff is also informed that the court cannot refer to a prior pleading in order to make

9 his first amended complaint complete. Local Rule 220 requires that an amended complaint be

10 complete in itself without reference to any prior pleading. This is because, as a general rule, an

11 amended complaint supersedes the original complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

12 1967) (citations omitted), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th

13 Cir. 2012) (claims dismissed with prejudice and without leave to amend do not have to be re-pled

14 in subsequent amended complaint to preserve appeal). Once plaintiff files a first amended

15 complaint, the original complaint no longer serves any function in the case. Therefore, in an

16 amended complaint, as in an original complaint, each claim and the involvement of each

17 defendant must be sufficiently alleged.

18 VI. Plain Language Summary of this Order for a Pro Se Litigant

19 Your request to proceed in forma pauperis is granted and you are not required to pay the

20 entire filing fee immediately.

21 Because the facts you have alleged are not enough to state a claim for relief, the complaint

22 will not be served. False statements made by correctional staff do not violate your constitutional

23 rights, even if they are used to support an RVR or ad seg placement. False statements that are

24 racially motivated would violate your equal protection rights, but to state a claim you must allege

25 facts showing that the motivation was racial. To state a claim for retaliation, you must allege

26 facts showing that the motivation was retaliatory, and that the retaliation was for constitutionally

27 protected conduct. Refusing a cellmate is not constitutionally protected speech. To state an

28 Eighth Amendment claim for failure to protect, you must allege facts showing that Lebeck knew

1 when he wrote the report about your supposed security concerns that doing so would create an

2 excessive risk that you would be assaulted. Your allegations about placement in ad seg and

3 denial or cancellation of your appeals do not state claims for relief, because inmates have very

4 limited constitutional rights in those areas.

5 Rather than recommending dismissal, the court is giving you the opportunity to amend

6 your complaint so that you can try to fix the problems with your claims. If you choose to amend

7 your complaint, the first amended complaint must include all of the claims you want to make

8 because the court will not look at the claims or information in the original complaint. Any claims

9 not in the first amended complaint will not be considered.

10 CONCLUSION

11 In accordance with the above, IT IS HEREBY ORDERED that:

12 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 7) is granted.

13 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff

14 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.

15 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the

16 Director of the California Department of Corrections and Rehabilitation filed concurrently

17 herewith.

18 3. Plaintiff’s complaint has been screened and found not to state a claim.

19 4. Within thirty days from the date of service of this order, plaintiff may file an amended

20 complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil

21 Procedure, and the Local Rules of Practice. The amended complaint must bear the docket

22 number assigned this case and must be labeled “First Amended Complaint.” Plaintiff must file an

23 original and two copies of the amended complaint. Failure to file an amended complaint in

24 accordance with this order will result in dismissal of this action.

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2 tI VME MEV PIO eI EN PAY AV VI LY

1 5. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint

2 | form used in this district.

3 | DATED: April 22, 2020 ~

4 ALLISON CLAIRE

5 UNITED STATES MAGISTRATE JUDGE

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