noting that claims dismissed with leave to amend which are not re-alleged 16 in an amended pleading may be “considered waived if not repled.”
How later courts described this case
- noting that claims dismissed with leave to amend which are not re-alleged 16 in an amended pleading may be “considered waived if not repled.”
- noting that screening pursuant to § 1915A “incorporates the familiar standard 9 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 10 12(b)(6)”
- “[A]n 14 amended pleading supersedes the original.”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 RAMON PADILLA, Case No.: 3:20-cv-00828-WQH-RBM
CDCR #K-33879,
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ORDER DISMISSING FIRST
Plaintiff,
13 AMENDED COMPLAINT FOR
vs. FAILING TO STATE A CLAIM
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PURSUANT TO 28 U.S.C. § 1915(e)(2)
15 & 28 U.S.C. § 1915A(b)
L. ARREDONDO, Lieutenant Hearing
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Officer; P. COVELLO, Former Warden at
17 RJDCF; S.K. HEMENWAY, Final
Appeals Examiner,
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Defendants.
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23 I. Procedural History
24 On April 30, 2020, Ramon Padilla (“Plaintiff”), currently incarcerated at the Richard
25 J. Donovan Correctional Facility (“RJD”) located in San Diego, California and proceeding
26 pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983. (See Compl., ECF No.
27 1).
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1 Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) when he
2 filed his Complaint; instead, he filed a Motion to Proceed In Forma Pauperis (“IFP”)
3 pursuant to 28 U.S.C. § 1915(a) (ECF No. 2).
4 On May 21, 2020, the Court GRANTED Plaintiff’s Motion to Proceed IFP but
5 DISMISSED his Complaint for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2)
6 & 28 U.S.C. § 1915A(b). (ECF No. 4.) Plaintiff was granted to leave to file an amended
7 pleading in order to correct the deficiencies of pleading identified in the Court’s Order.
8 (See id.) On June 8, 2020, Plaintiff filed his First Amended Complaint (“FAC”). (ECF
9 No. 5.)
10 In the Court’s May 21, 2020 Order Defendant was cautioned that any “[d]efendants
11 not named and any claim not re-alleged in his Amended Complaint will be considered
12 waived.” (May 21, 2020 Order, ECF No. 4 at 8; citing S.D. Cal. CivLR 15.1; Hal Roach
13 Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n
14 amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928
15 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not re-alleged
16 in an amended pleading may be “considered waived if not repled.”).) In his FAC, Plaintiff
17 no longer names Warden Covello as a Defendant. Accordingly, the claims against this
18 Defendant are waived.
19 II. Sua Sponte Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)
20 A. Standard of Review
21 As the Court previously informed Plaintiff, because he is a prisoner and is
22 proceeding IFP, his FAC also requires a pre-answer screening pursuant to 28 U.S.C.
23 § 1915(e)(2) and § 1915A(b). Under these statutes, the Court must sua sponte dismiss a
24 prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails to state a
25 claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d
26 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v.
27 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The
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1 purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not
2 bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014)
3 (citation omitted).
4 “The standard for determining whether a plaintiff has failed to state a claim upon
5 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
6 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d
7 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.
8 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard
9 applied in the context of failure to state a claim under Federal Rule of Civil Procedure
10 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted
11 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
12 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.
13 Detailed factual allegations are not required, but “[t]hreadbare recitals of the
14 elements of a cause of action, supported by mere conclusory statements, do not suffice.”
15 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief
16 [is] ... a context-specific task that requires the reviewing court to draw on its judicial
17 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned,
18 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility
19 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
20 B. Plaintiff’s Factual Allegations
21 On May 9, 2019, Plaintiff was “falsely accused of being in possession of a cellphone
22 that was found hidden in [his] ex-cellmate’s . . . assigned cell locker.” (FAC at 3.) A
23 disciplinary hearing was conducted on May 23, 2019 “before the Senior Hearing Officer”
24 L. Arredondo. (Id.) Plaintiff “tried pleading with [Arredondo] over and over again” that
25 he “should not be held accountable and punished for [his] ex-cellmate’s actions.” (Id.)
26 During Plaintiff’s disciplinary hearing he alleges that his ex-cellmate submitted a “sworn
27 declaration” which was a “confession under oath” that Plaintiff “knew nothing about [his
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1 ex-cellmate] hiding a cellphone in his personal locker.” (Id.)
2 However, Arredondo “disregarded” this sworn declaration and found Plaintiff
3 “guilty anyway.” (Id.) Plaintiff “appealed the Defendant’s ruling against [him] all the way
4 up” through the final level of review within the CDCR. (Id.) The “Third Level Review
5 Appeals Examiner named S.K. Hemenway fully acknowledged [Plaintiff’s] argument” that
6 “no inmate should have control over another inmate’s welfare.” (Id.)
7 Plaintiff was “never charged or found guilty of being in ‘constructive possession’”
8 of the cellphone. (Id. at 4.) However, Plaintiff and his former cellmate were “both charged
9 and found guilty of being in ‘actual possession’ of only one cellphone.” (Id.) However,
10 Plaintiff contends that it is “humanly impossible” for two people to be in “physical
11 possession” of only one cellphone. (Id.) Plaintiff seeks injunctive relief and compensatory
12 damages in the amount of $6,000.00. (Id. at 7.)
13 C. 42 U.S.C. § 1983
14 “Section 1983 creates a private right of action against individuals who, acting under
15 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey,
16 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive
17 rights, but merely provides a method for vindicating federal rights elsewhere conferred.”
18 Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks and citations
19 omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right
20 secured by the Constitution and laws of the United States, and (2) that the deprivation was
21 committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698
22 F.3d 1128, 1138 (9th Cir. 2012).
23 D. Due Process claims
24 The Due Process Clause protects prisoners against deprivation or restraint of “a
25 protected liberty interest” and “atypical and significant hardship on the inmate in relation
26 to the ordinary incidents of prison life.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir.
27 2003) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)) (internal quotation marks
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1 omitted). Although the level of the hardship must be determined in a case-by-case
2 determination, courts look to:
3 1) whether the challenged condition ‘mirrored those conditions imposed upon
inmates in administrative segregation and protective custody,’ and thus
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comported with the prison’s discretionary authority; 2) the duration of the
5 condition, and the degree of restraint imposed; and 3) whether the state’s
action will invariably affect the duration of the prisoner’s sentence.
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7 Ramirez, 334 F.3d at 861 (quoting Sandin, 515 U.S. at 486-87). Only if an inmate has
8 alleged facts sufficient to show a protected liberty interest does the court next consider
9 “whether the procedures used to deprive that liberty satisfied Due Process.” Ramirez, 334
10 F.3d at 860.
11 In the Court’s previous Order, Plaintiff was told that he must allege “facts which
12 show that the disciplinary punishment he faced as a result of the RVR subjected him to any
13 ‘atypical and significant hardship in relation to the ordinary incidents of prison life’.” (See
14 May 21, 2020 Order at 6; citing Ramirez, 334 F.3d at 860; Sandin, 515 U.S. at 584.)
15 However, once again, Plaintiff does not compare the conditions of his confinement before
16 or after his disciplinary conviction. Nor does he allege the degree of restraint it imposed.
17 Ramirez, 334 F.3d at 861 (quoting Sandin, 515 U.S. at 486-87).
18 Therefore, the Court finds that Plaintiff’s pleading contains no “factual content that
19 allows the court to draw the reasonable inference,” Iqbal, 556 U.S. at 678, that Defendants
20 actions “presented a dramatic departure from the basic conditions of [Plaintiff’s]
21 indeterminate sentence,” or caused him to suffer an “atypical” or “significant hardship.”
22 Sandin, 515 U.S. at 584-85; see also Keenan v. Hall, 83 F.3d 1083, 1088-89 (9th Cir. 1996),
23 amended by 135 F.3d 1318 (9th Cir. 1998).
24 Moreover, even if Plaintiff had alleged facts sufficient to invoke a protected liberty
25 interest under Sandin, he still fails to plead facts to plausibly show he was denied the
26 procedural protections the Due Process Clause requires. See Iqbal, 556 U.S. at 678;
27 Ramirez, 334 F.3d at 860 (citations omitted); see also Brown v. Oregon Dep’t of Corr., 751
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1 F.3d 983, 987 (9th Cir. 2014). Those procedures include: (1) written notice of the charges
2 at least 24 hours before the disciplinary hearing; (2) a written statement by the fact-finder
3 of the evidence relied on and reasons for the disciplinary action; (3) the right to call
4 witnesses and present documentary evidence if doing so will not jeopardize institutional
5 safety or correctional goals; (4) the right to appear before an impartial body; and (5)
6 assistance from fellow inmates or prison staff in complex cases. Wolff v. McDonnell, 418
7 U.S. 539, 563-72 (1974); Serrano v. Francis, 345 F.3d 1071, 1079-80 (9th Cir. 2003).
8 Plaintiff does not allege any facts that any of procedural processes required by Wolff were
9 not followed in his disciplinary hearing.
10 E. Leave to Amend
11 Because Plaintiff has already been provided a short and plain statement of his
12 pleading deficiencies, as well as opportunities to amend those claims to no avail, the Court
13 finds granting further leave to amend would be futile. See Gonzalez v. Planned Parenthood,
14 759, F.3d 1112, 1116 (9th Cir. 2014) (“‘Futility of amendment can, by itself, justify the
15 denial of ... leave to amend.’”) (quoting Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir.
16 1995)); Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009)
17 (“[W]here the plaintiff has previously been granted leave to amend and has subsequently
18 failed to add the requisite particularity to its claims, [t]he district court’s discretion to deny
19 leave to amend is particularly broad.” (internal quotation marks omitted) (second alteration
20 in original)).
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1 Conclusion and Order
2 For the reasons explained, the Court:
3 1) DISMISSES this civil action without further leave to amend for failing to
4 ||state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)Gi1) and § 1915A(b)(1), and
5 2) DIRECTS the Clerk of Court to enter a final judgment of dismissal and close
6 || the file.
7 IT IS SO ORDERED.
8 || Dated: July 2, 2020 BE: Kho □□□ A a
9 Hon, William Q. Hayes
10 United States District Court
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