Lance Williams v. R. Farley

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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10 LANCE WILLIAMS, Case No. CV 20-4490-PA (KK)

11 Plaintiff,

12 v. ORDER DISMISSING FIRST

AMENDED COMPLAINT WITH

13 R. FARLEY, ET AL., LEAVE TO AMEND

14 Defendant(s).

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16

17 I.

18 INTRODUCTION

19 Plaintiff Lance Williams (“Plaintiff”), proceeding pro se and in forma pauperis,

20 filed a First Amended Complaint (“FAC”) pursuant to 42 U.S.C. § 1983 (“Section

21 1983”) against correctional officers R. Farley, D. Arebalo, M. Williams, J. Graves, and

22 D. Davis (“Defendants”) alleging violations of his First, Eighth, and Fourteenth

23 Amendment rights. For the reasons discussed below, the Court dismisses the FAC

24 with leave to amend.

25 ///

26 ///

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1 II.

2 BACKGROUND

3 On May 19, 2020, Plaintiff, an inmate at California Men’s Colony – East

4 (“CMC”) constructively filed1 the instant Complaint against Defendants, who are all

5 correctional officers at CMC, in their individual and official capacities. ECF Docket

6 No. (“Dkt.”) 1. Plaintiff alleges (1) a First Amendment retaliation claim against all

7 Defendants; (2) an Eighth Amendment excessive force claim against defendant Farley;

8 (3) an Eighth Amendment “threat to safety” claim against defendants Farley, Arebalo,

9 and Graves; and (4) a Fourteenth Amendment due process claim against defendants

10 Williams, Graves, and Davis. Id. at 3-4.

11 On August 10, 2020, the Court dismissed the Complaint with leave to amend

12 finding (1) the Eleventh Amendment bars claims for monetary damages against

13 Defendants in their official capacity; (2) Plaintiff failed to state certain First

14 Amendment retaliation claims against defendants Farley and Davis; (3) Plaintiff failed

15 to state Eighth Amendment “threat to safety” claims against defendants Farley,

16 Arebalo, and Graves; (4) Plaintiff failed to state a Fourteenth Amendment due

17 process claim against defendants Williams, Graves, and Davis. Dkt. 8.

18 On September 8, 2020, Plaintiff filed the instant FAC against defendants Farley

19 and Graves in their individual capacity and defendants Arebalo, Williams, and Davis

20 in their individual and official capacities for violation of Plaintiff’s First, Eighth, and

21 Fourteenth Amendment rights. Dkt. 13.

22 The FAC sets forth the following allegations:

23 In Claim One, Plaintiff alleges on April 2, 2020, Plaintiff signed up for a 1:15

24 p.m. time slot to use the phone to call his attorney. Id. at 5. Shortly thereafter,

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1 Under the “mailbox rule,” when a pro se prisoner gives prison authorities a

pleading to mail to court, the court deems the pleading constructively “filed” on the

27

date it is signed. Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010); see

1 Plaintiff “received a priority medical pass for 1:00 p.m.” Id. Later that day, Plaintiff

2 discovered defendant Farley had “scratched” Plaintiff’s name off the phone list. Id.

3 Plaintiff questioned defendant Farley as to why his name was scratched off the list

4 and defendant Farley responded, “consider it payback for the many 602 appeal

5 grievances you filed on me” and then stated Plaintiff’s medical pass conflicted with

6 the phone time. Id. Plaintiff questioned defendant Farley about “the policy that says

7 officers are supposed to scratch names off” and defendant Farley “could not provide

8 the policy.” Id. Plaintiff then informed defendant Farley he “would be filing a 602

9 appeal grievance to address this policy and [defendant Farley’s] actions.” Id. Plaintiff

10 appears to allege he “couldn’t contact his attorney” as a result of defendant Farley’s

11 actions. Id.

12 In Claim Two, Plaintiff alleges on April 6, 2020, defendant Farley issued a

13 Rules Violation Report (“RVR”) against Plaintiff for “unlawful influence” which

14 noted “[Plaintiff’s] threats [were] valid due to [Plaintiff] having filed staff complaints

15 on me before.” Id. at 6. Plaintiff alleges defendant Farley issued the RVR “strictly in

16 retaliation for Plaintiff’s threat to file a 602 appeal grievance about [the] phone issue.”

17 Id. In addition, Plaintiff alleges the RVR violated his Fourteenth Amendment due

18 process rights because Plaintiff “does not have repeated offenses for this charge” and

19 defendant Farley’s “dishonest” allegations in the RVR are a “clear abuse of

20 discretion.” Id.

21 On April 14, 2020, Plaintiff alleges he appeared at a hearing conducted by

22 defendant Arebalo as the Senior Hearing Officer regarding the RVR. Id. at 8.

23 Plaintiff alleges defendant Arebalo found him guilty of the RVR, but claims the

24 “preponderance of evidence standard was not met” because the RVR is unreliable

25 hearsay and defendant Farley’s testimony was also unreliable. Id. at 7. Plaintiff

26 further alleges defendant Arebalo violated his Fourteenth Amendment due process

27 rights because defendant Arebalo was biased, asked non-impartial questions, and

1 would have testified Plaintiff was done with his medical appointment before 1:15 pm.

2 Id. at 9-10.

3 After the hearing suspended for the day, Plaintiff alleges defendant Farley

4 called Plaintiff into a dark office, told Plaintiff to close the door, and “jumped up and

5 attack[ed] [Plaintiff], grabbing his neck squeezing it and punching Plaintiff in [his]

6 stomach,” and stated “‘if you file any more appeals on me or even think about filing a

7 lawsuit[,] and I’ll know because I talk to law library staff[,] I’ll make sure you end up in

8 the hole, I’ll place a mysterious kite on you.” Id. at 10. Plaintiff alleges defendant

9 Farley’s “assault and threats” violated his First, Eighth, and Fourteenth Amendment

10 rights.2 Id.

11 On April 15, 2020, when the hearing resumed, defendant Arebalo found

12 Plaintiff guilty of the rule violation. Id. at 11. Plaintiff further alleges defendant

13 Arebalo informed Plaintiff of his right to appeal the decision, but stated “if I was you

14 I wouldn’t it may get you fucked over and hurt.” Id. Plaintiff alleges defendant

15 Arebalo’s threat showed he was deliberately indifferent to Plaintiff’s health and safety

16 in violation of Plaintiff’s Eight Amendment rights. Id. at 12.

17 In Claim Three, Plaintiff alleges on April 24, 2020 he was taken to

18 administrative segregation (“ad-seg”) because a note was found in the prison mail

19 system stating Plaintiff was “going to be stabbed due to him filing a lot of 602 appeal

20 grievances.” Id. at 13. Plaintiff alleges he “has personal knowledge this entire process

21 was orchestrated and conjured up by [defendant] Farley” and other officers. Id.

22 Plaintiff further alleges that on April 28, 2020, while he was in ad-seg, defendant

23 Farley came to his door and said, “I told you we would get you and if you think about

24 writing any 602 appeals or lawsuits again I can still have you cut up back here.” Id.

25 Plaintiff alleges defendant Farley then “pointed at him as if to shoot a gun” and

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2 Plaintiff clarifies his Eighth Amendment claim against defendant Farley is not based

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on the verbal threat about the “mysterious kite,” but rather that “the chronology of

1 walked away. Id. Plaintiff alleges this “chronology of events” shows defendant Farley

2 acted in retaliation in violation of Plaintiff’s First Amendment rights. Id.

3 In Claim Four, Plaintiff alleges that at his April 30, 2020 “annual” hearing,

4 defendant Williams, as “acting Captain”, rescinded Plaintiff’s “level 1 override

5 endorsement” that Plaintiff’s previous counsellor had approved. Id. at 14. Plaintiff

6 alleges before the hearing defendant Williams came to Plaintiff’s door in ad-seg and

7 said he would “rescind the level 1 override because Plaintiff filed too many

8 grievances” and because he filed a staff complaint grievance against defendant Farley.

9 Id. at 14. In addition, Plaintiff alleges defendant Williams violated his due process

10 rights when he “refused to address” Plaintiff’s upcoming mandatory parole review.

11 Id. Plaintiff further alleges defendant Williams violated Plaintiff’s due process rights

12 because (a) he refused to provide a staff assistant to help Plaintiff prepare for the

13 hearing, but falsely documented that defendant Graves provided assistance; (b)

14 Plaintiff did not meet with a staff assistant 24 hours before the hearing; and (c)

15 Plaintiff was not given 72 hours notice of the hearing. Id. at 15. Plaintiff alleges he

16 filed a Form 22 inmate request with defendant Graves requesting information “about

17 his involvement with [Plaintiff’s] hearing”, but defendant Graves responded to

18 Plaintiff by stating “don’t involve me in your 602 and lawsuit shit I’m in control of

19 your life back here . . . it’s nothing for you to end up hanging you see what happen[ed]

20 to Epstein”.3 Id. at 16. Plaintiff alleges this “comment (threat) placed Plaintiff in

21 imminent danger of serious physical injury.” Id. at 16.

22 Plaintiff further alleges defendant Davis “endorsed [Plaintiff] to a facility far

23 from his county” as part of a “campaign of harassment and retaliation”. Id. at 17.

24 When Plaintiff informed defendant Davis he had enemy and safety concerns at Deuel

25 Vocational Institution (“DVI”), where he was endorsed to be transferred, defendant

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3 Plaintiff clarifies he “is not claiming Graves violated due process [but that]

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defendant Williams did using Graves’ name, nor is the Plaintiff making an 8th

1 Davis said, “I’ve been told all about you you[’re] getting transferred to DVI a

2 nonprogramming facility since you like to file a lot of grievances.” Id. Plaintiff alleges

3 defendant Davis also violated Plaintiff’s due process rights by failing to investigate

4 Plaintiff’s safety concerns. Id.

5 While the FAC is not clear as to which claims Plaintiff is seeking to raise

6 against each defendant, it appears Plaintiff seeks to allege the following claims: (1) a

7 First Amendment retaliation claim against defendants Farley, Williams, Davis; (2) an

8 Eighth Amendment excessive force claim against defendant Farley; (3) an Eighth

9 Amendment “threat to safety” claim against defendants Farley, Arebalo, and Graves;

10 and (4) a Fourteenth Amendment due process claim against defendants Farley,

11 Arebalo, Williams, and Davis.

12 Plaintiff seeks punitive, compensatory, and nominal damages as well as

13 “injunctive relief against future infringement of [Plaintiff’s] 1st Amendment rights and

14 for expungement of unlawful influence RVR from [Plaintiff’s] C-file”, and deletion of

15 4 classification points, and an order that Plaintiff be “taken to classification and all

16 available credits [be] backdated as of [Plaintiff’s] April 30, 2020 classification.” Id. at

17 18.4

18 III.

19 STANDARD OF REVIEW

20 Where a plaintiff is proceeding in forma pauperis, a court must screen the

21 complaint under 28 U.S.C. § 1915 and is required to dismiss the case at any time if it

22 concludes the action is frivolous or malicious, fails to state a claim on which relief may

23 be granted, or seeks monetary relief against a defendant who is immune from such

24 relief. 28 U.S.C. § 1915(e)(2)(B); see Barren v. Harrington, 152 F.3d 1193, 1194 (9th

25 Cir. 1998).

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1 Under Federal Rule of Civil Procedure 8 (“Rule 8”), a complaint must contain a

2 “short and plain statement of the claim showing that the pleader is entitled to relief.”

3 Fed. R. Civ. P. 8(a)(2). In determining whether a complaint fails to state a claim for

4 screening purposes, a court applies the same pleading standard as it would when

5 evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See

6 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012).

7 A complaint may be dismissed for failure to state a claim “where there is no

8 cognizable legal theory or an absence of sufficient facts alleged to support a

9 cognizable legal theory.” Zamani v. Carnes, 491 F.3d 990, 996 (9th Cir. 2007). In

10 considering whether a complaint states a claim, a court must accept as true all of the

11 material factual allegations in it. Hamilton v. Brown, 630 F.3d 889, 892-93 (9th Cir.

12 2011). However, the court need not accept as true “allegations that are merely

13 conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re

14 Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). Although a complaint

15 need not include detailed factual allegations, it “must contain sufficient factual matter,

16 accepted as true, to state a claim to relief that is plausible on its face.” Cook v.

17 Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662,

18 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)). A claim is facially plausible when it

19 “allows the court to draw the reasonable inference that the defendant is liable for the

20 misconduct alleged.” Id. The complaint “must contain sufficient allegations of

21 underlying facts to give fair notice and to enable the opposing party to defend itself

22 effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).

23 “A document filed pro se is ‘to be liberally construed,’ and a ‘pro se complaint,

24 however inartfully pleaded, must be held to less stringent standards than formal

25 pleadings drafted by lawyers.’” Woods v. Carey, 525 F.3d 886, 889-90 (9th Cir. 2008).

26 However, liberal construction should only be afforded to “a plaintiff’s factual

27 allegations,” Neitzke v. Williams, 490 U.S. 319, 330 n.9, 109 S. Ct. 1827, 104 L. Ed. 2d

1 the truth of legal conclusions cast in the form of factual allegations,” Ileto v. Glock

2 Inc., 349 F.3d 1191, 1200 (9th Cir. 2003).

3 If a court finds the complaint should be dismissed for failure to state a claim,

4 the court has discretion to dismiss with or without leave to amend. Lopez v. Smith,

5 203 F.3d 1122, 1126-30 (9th Cir. 2000). Leave to amend should be granted if it

6 appears possible the defects in the complaint could be corrected, especially if the

7 plaintiff is pro se. Id. at 1130-31; see also Cato v. United States, 70 F.3d 1103, 1106

8 (9th Cir. 1995). However, if, after careful consideration, it is clear a complaint cannot

9 be cured by amendment, the court may dismiss without leave to amend. Cato, 70

10 F.3d at 1107-11; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009).

11 IV.

12 DISCUSSION

13 A. EIGHTH AMENDMENT THREAT TO SAFETY CLAIMS

14 Plaintiff seeks to allege an Eighth Amendment claim based on “threats to

15 safety” against defendants Farley, Arebalo, and Graves. As discussed below, these

16 claims are subject to dismissal.

17 1. Applicable Law

18 The Eighth Amendment protects prisoners from inhumane methods of

19 punishment and from inhumane conditions of confinement. Morgan v. Morgensen,

20 465 F.3d 1041, 1045 (9th Cir. 2006) (as amended). In order to state an Eighth

21 Amendment claim, a plaintiff must “objectively show that he was deprived of

22 something ‘sufficiently serious,’” and “make a subjective showing that the deprivation

23 occurred with deliberate indifference to the inmate’s health or safety.” Foster v.

24 Runnels, 554 F.3d 807, 812 (9th Cir. 2009) (citing Farmer v. Brennan, 511 U.S. 825,

25 834, 114 S.Ct. 1970, 128 L. Ed. 2d 811 (1994)). “A mere threat may not state a cause

26 of action” under the Eighth Amendment. Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir.

27 1987) (per curiam).

1 2. Analysis

2 Here, Plaintiff alleges that after physically assaulting Plaintiff, defendant Farley

3 told Plaintiff “‘if you file any more appeals on me or even think about filing any

4 lawsuits . . . I’ll make sure you end up in the hole, there may be a mysterious kite

5 dropped on you.” Dkt. 13 at 10. Plaintiff also alleges defendant Arebalo advised

6 Plaintiff not to appeal his RVR hearing determination and stated, “it may get you

7 fucked over and hurt.” Id. at 12. Plaintiff further alleges defendant Graves told

8 Plaintiff “it’s nothing for you to end up hanging” and made reference to “what

9 happen[ed] to Epstein”. Id. at 16. Plaintiff argues these “comment[s] (threats)”

10 placed him in imminent danger of serious physical injury. These mere threats of

11 harm, however, do not rise to the level of an Eighth Amendment violation. Gaut, 810

12 F.2d at 925; Ferguson v. Pagati, No. CV 12-00653-VBF (DTB), 2013 WL 3989426, at

13 *5 (C.D. Cal. Aug. 1, 2013) (allegations of threats of physical violence, without more,

14 are insufficient to state a claim under the Eighth Amendment).

15 Accordingly, Plaintiff’s Eighth Amendment claims against defendants Farley,

16 Arebalo, and Graves for verbal threats are subject to dismissal.

17 B. FOURTEENTH AMENDMENT DUE PROCESS CLAIMS

18 Plaintiff alleges a Fourteenth Amendment due process claim against defendants

19 Farley, Arebalo, Williams, and Davis. As discussed below, these claims are subject to

20 dismissal.

21 1. Applicable Law

22 The Due Process Clause of the Fourteenth Amendment protects individuals

23 against deprivations of “life, liberty, or property.” U.S. Const. amend. XIV, § 1. “A

24 liberty interest may arise from the Constitution itself, by reason of guarantees implicit

25 in the word ‘liberty,’ or it may arise from an expectation or interest created by state

26 laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221, 125 S. Ct. 2384, 162 L. Ed.

27 2d 174 (2005) (citations omitted). Due process analysis proceeds in two steps: “We

1 deprived, and if so we ask whether the procedures followed by the State were

2 constitutionally sufficient.” Swarthout v. Cooke, 562 U.S. 216, 219, 131 S. Ct. 859,

3 178 L. Ed. 2d 732 (2011).

4 Courts have held prisoners have “no constitutionally guaranteed immunity

5 from being falsely or wrongly accused of conduct which may result in the deprivation

6 of a protected liberty interest,” but they do have “the right not to be deprived of a

7 protected liberty interest without due process of law.” Freeman v. Rideout, 808 F.2d

8 949, 951 (2d Cir. 1986); see also Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir.

9 1989) (finding inmate’s claims based upon falsity of charges brought by a prison

10 counselor did not state a constitutional claim). In order to establish the deprivation of

11 a protected liberty interest, however, a prisoner must allege an “atypical, significant

12 deprivation in which a State might conceivably create a liberty interest.” Sandin v.

13 Conner, 515 U.S. 472, 486, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995).

14 It is well established that inmates subjected to disciplinary action are entitled to

15 certain procedural protections under the Due Process Clause but are not entitled to

16 the full panoply of rights afforded to criminal defendants. Wolff v. McDonnell, 418

17 U.S. 539, 556 (1974). A prisoner facing the loss of good time credits “must receive (1)

18 advance written notice of the disciplinary charges; (2) an opportunity, when consistent

19 with institutional safety and correctional goals, to call witnesses and present

20 documentary evidence in his defense; and (3) a written statement by the factfinder of

21 the evidence relied on and the reasons for the disciplinary action.” Superintendent,

22 Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454, 105 S. Ct. 2768, 86 L. Ed. 2d 356

23 (1985) (citing Wolff, 418 U.S. at 563-567). If the procedural protections required by

24 due process are afforded, a prisoner’s disciplinary proceeding cannot violate due

25 process so long as “some evidence” supports the disciplinary decision. Hill, 472 U.S.

26 at 455.

27 ///

1 2. Analysis

2 a. Defendant Farley

3 Plaintiff alleges defendant Farley violated his due process rights by issuing a

4 “serious RVR” when Plaintiff “does not have repeated offenses for this charge” and

5 defendant Farley’s “dishonest” allegations in the RVR are a “clear abuse of

6 discretion.” Dkt. 13 at 6. Prisoners, however, have “no constitutionally guaranteed

7 immunity from being falsely or wrongly accused of conduct which may result in the

8 deprivation of a protected liberty interest.” Freeman, 808 F.2d at 95. Accordingly,

9 Plaintiff fails to state a due process claim against defendant Farley for falsely accusing

10 him of a rule violation.

11 b. Defendant Arebalo

12 Plaintiff alleges defendant Arebalo violated his due process rights by finding

13 Plaintiff guilty of the rule violation without meeting the “preponderance of evidence”

14 standard, and because defendant Arebalo was biased, asked non-impartial questions,

15 and denied Plaintiff’s request for a relevant, material witness. Dkt. 13 at 7-10.

16 First, a fair trial in a fair tribunal is a basic requirement of due process that

17 applies in prison disciplinary proceedings. In re Murchison, 349 U.S. 133, 136, 75 S.

18 Ct. 623, 99 L. Ed. 942 (1955); Wolff, 418 U.S. at 570-71. Fairness requires an absence

19 of actual bias and of the probability of unfairness. In re Murchison, 349 U.S. at 136.

20 “There is a presumption of honesty and integrity on the part of decision makers

21 which may be overcome by evidence of a risk of actual bias or prejudgment based on

22 special facts and circumstances.” Burgess v. Rios, No. 1:12-CV-00544-AWI (SK),

23 2015 WL 3402933, at *6 (E.D. Cal. May 27, 2015), aff’d, 658 F. App’x 335 (9th Cir.

24 2016) (citing Withrow v. Larkin, 421 U.S. 35, 46-47, 95 S. Ct. 1456, 43 L. Ed. 2d 712

25 (1975)). Plaintiff cites no evidence suggesting that the hearing officer relied upon

26 knowledge or information acquired outside of the disciplinary proceedings or was

27 otherwise biased against Plaintiff. Strawderman v. Ives, No. 3:18-CV-00609-JR, 2018

1 3:18-CV-00609-MK, 2018 WL 5284194 (D. Or. Oct. 24, 2018). Plaintiff has,

2 therefore, failed to show he was denied a “fair tribunal.” In re Murchison, 349 U.S. at

3 136.

4 Second, in determining whether “some evidence” supports a disciplinary

5 decision, this Court does not “make its own assessment of the credibility of witnesses

6 or reweigh the evidence.” Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987). Prison

7 discipline may not be overturned even when the critical “evidence” is confidential

8 hearsay, so long as the totality of the circumstances suggests that the informants are

9 reliable, with more severe punishments requiring greater indicia of the hearsay’s

10 reliability. Dawson v. Norwood, No. CV 08-01070-AHS (RZ), 2010 WL 761226, at

11 *2 (C.D. Cal. Mar. 1, 2010), aff’d, 443 F. App’x 286 (9th Cir. 2011) (denying habeas

12 relief, finding hearsay in reporting officer’s initial report satisfied “some evidence”

13 requirement to support guilty finding at disciplinary hearing that resulted in loss of 60

14 days’ credit) (citing Kyle v. Hanberry, 677 F.2d 1386, 1390 (11th Cir. 1982)). Law

15 enforcement officers are presumed to be reliable, at least when hearsay that they

16 provide supplies a basis for arrest. Id. (citing United States v. Angulo-Lopez, 791

17 F.2d 1394, 1397 (9th Cir. 1986)). Here, defendant Farley is presumed to be reliable

18 and Petitioner has not established the RVR was not sufficiently reliable to support a

19 guilty finding at a disciplinary hearing. Dawson, 2010 WL 761226, at *2. Defendant

20 Farley’s report and testimony, therefore, meets the “some evidence” standard required

21 by due process and this Court cannot reweigh the evidence. Cato, 824 F.2d at 705.

22 Third, due process prohibits prison officials from arbitrarily denying an

23 inmate’s request to present witnesses or physical evidence. Hill, 472 U.S. at 454-455;

24 Bostic v. Carlson, 884 F.2d 1267, 1273 (9th Cir. 1988). It is the prison official’s

25 burden to prove that his decision denying the right to call a witness or introduce

26 physical evidence was sufficiently justified. Ponte v. Real, 471 U.S. 491, 499, 105 S.

27 Ct. 2192, 85 L. Ed. 2d 553 (1985). Prison officials may, however, disallow evidence

1 hazards under the circumstances of the case. Wolff, 418 U.S. at 566. Plaintiff alleges

2 defendant Arebalo denied Plaintiff leave to call the nurse who treated him on April 2,

3 2020 as a witness to testify that Plaintiff’s 1:00 p.m. medical appointment was done

4 before his 1:15 p.m. scheduled call, on the basis her testimony was not relevant. Dkt.

5 13 at 9-10. The Court finds that whether or not Plaintiff could get back from medical

6 in time for his 1:15 p.m. phone call is irrelevant to whether he made the statements to

7 defendant Farley that resulted in defendant Farley issuing an RVR for unlawful

8 influence. Defendant Arebalo’s finding that the nurse-witness could not provide

9 additional relevant information regarding the RVR was, therefore, not arbitrary. Hill,

10 472 U.S. at 454-455; Wolff, 418 U.S. at 566.

11 c. Defendant Williams

12 Plaintiff alleges defendant Williams improperly rescinded Plaintiff’s “level 1

13 override endorsement” and refused to discuss Plaintiff’s upcoming “parole date” at a

14 classification hearing. Dkt. 13 at 14. Plaintiff, however, has no liberty interest in his

15 classification status. See Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007)

16 (holding prison regulations governing inmate classification did not create cognizable

17 Eighth or Fourteenth Amendment liberty interests). Moreover, Plaintiff does not

18 explain how defendant Williams’s failure to assign him a staff assistant constitutes an

19 “atypical, significant deprivation in which a State might conceivably create a liberty

20 interest.” Sandin, 515 U.S. at 486.

21 d. Defendant Davis

22 Similarly, Plaintiff’s allegations that defendant Davis “endorsed” Plaintiff to be

23 placed in a facility “far from his county” fails to state a due process claim because

24 Plaintiff fails to identify any established liberty interest in avoiding being transferred to

25 a farther prison. See Olim v. Wakinekona, 461 U.S. 238, 245 (1983); Meachum v.

26 Fano, 427 U.S. 215, 225-27 (1976); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir.

27 1991) (holding prisoner “was not entitled to a hearing prior to being transferred from

1 (holding prisoner “has not alleged that any regulation or procedure created a

2 substantive restriction on the prison authorities’ decision to return him to the

3 penitentiary. No liberty or property interest is violated where there is a failure to

4 allege a restriction on the authorities’ right to transfer.”).

5 Accordingly, Plaintiff’s Fourteenth Amendment due process claims are subject

6 to dismissal.

7 V.

8 LEAVE TO FILE A SECOND AMENDED COMPLAINT

9 For the foregoing reasons, the FAC is subject to dismissal. As the Court is

10 unable to determine whether amendment would be futile, leave to amend is granted.

11 See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam). Plaintiff is

12 advised that the Court’s determination herein that the allegations in the FAC are

13 insufficient to state a particular claim should not be seen as dispositive of that claim.

14 Accordingly, while the Court believes Plaintiff has failed to plead sufficient factual

15 matter in his pleading, accepted as true, to state a claim to relief that is viable on its

16 face, Plaintiff is not required to omit any claim in order to pursue this action.

17 However, if Plaintiff asserts a claim in his Second Amended Complaint that has been

18 found to be deficient without addressing the claim’s deficiencies, then the Court,

19 pursuant to the provisions of 28 U.S.C. § 636, ultimately will submit to the assigned

20 district judge a recommendation that such claim be dismissed with prejudice for

21 failure to state a claim, subject to Plaintiff’s right at that time to file Objections with

22 the district judge as provided in the Local Rules Governing Duties of Magistrate

23 Judges.

24 Accordingly, IT IS ORDERED THAT within twenty-one (21) days of the

25 service date of this Order, Plaintiff choose one of the following three options:

26 1. Plaintiff may file a Second Amended Complaint to attempt to cure the

27 deficiencies discussed above. The Clerk of Court is directed to mail Plaintiff a blank

1 Central District civil rights complaint form to use for filing the Second Amended

2 Complaint, which the Court encourages Plaintiff to use.

3 If Plaintiff chooses to file a Second Amended Complaint, he must clearly

4 designate on the face of the document that it is the “Second Amended Complaint,” it

5 must bear the docket number assigned to this case, and it must be retyped or

6 rewritten in its entirety, preferably on the court-approved form. Plaintiff shall not

7 include new defendants or allegations that are not reasonably related to the claims

8 asserted in the FAC. In addition, the Second Amended Complaint must be complete

9 without reference to the FAC, Complaint or any other pleading, attachment, or

10 document.

11 An amended complaint supersedes the preceding complaint. Ferdik v.

12 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). After amendment, the Court will treat

13 all preceding complaints as nonexistent. Id. Because the Court grants Plaintiff

14 leave to amend as to all his claims raised here, any claim raised in a preceding

15 complaint is waived if it is not raised again in the Second Amended Complaint.

16 Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012).

17 The Court advises Plaintiff that it generally will not be well-disposed toward

18 another dismissal with leave to amend if Plaintiff files a Second Amended Complaint

19 that continues to include claims on which relief cannot be granted. “[A] district

20 court’s discretion over amendments is especially broad ‘where the court has already

21 given a plaintiff one or more opportunities to amend his complaint.’” Ismail v. Cty.

22 of Orange, 917 F. Supp. 2d 1060, 1066 (C.D. Cal. 2012); see also Ferdik, 963 F.2d at

23 1261. Thus, if Plaintiff files a Second Amended Complaint with claims on

24 which relief cannot be granted, the Second Amended Complaint will be

25 dismissed without leave to amend and with prejudice.

26 2. Alternatively, Plaintiff may file a notice with the Court that he intends to

27 stand on the allegations in his FAC. If Plaintiff chooses to stand on the FAC despite

1 recommendation to the assigned district judge that the deficient claims discussed

2 in this Order be dismissed with prejudice for failure to state a claim, subject to

3 Plaintiff’s right at that time to file Objections with the district judge as provided in the

4 Local Rules Governing Duties of Magistrate Judges. If the assigned district judge

5 accepts the findings and recommendations of the undersigned Magistrate Judge and

6 dismisses the deficient claims discussed in this Order, the Court will issue a separate

7 order regarding service of any claims remaining in the FAC at that time.

8 3. Finally, Plaintiff may voluntarily dismiss the action without prejudice,

9 pursuant to Federal Rule of Civil Procedure 41(a). The Clerk of Court is directed to

10 mail Plaintiff a blank Notice of Dismissal Form, which the Court encourages Plaintiff

11 to use if he chooses to voluntarily dismiss the action.

12 Plaintiff is explicitly cautioned that failure to timely respond to this

13 Order will result in this action being dismissed without prejudice for failure to

14 prosecute and/or obey Court orders pursuant to Federal Rule of Civil

15 Procedure 41(b).

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17 Dated: October 13, 2020

18 HONORABLE KENLY KIYA KATO

United States Magistrate Judge

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