Opinion
Civil No. 05cv1966-JAH (PCL).
February 13, 2006
Plaintiff, a state inmate currently incarcerated at Calipatria State Prison in Calipatria, California, proceeding pro se, has filed a civil rights Complaint pursuant to 42 U.S.C. §§ 1983 and 1985, along with a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). Plaintiff sets forth sixteen causes of action against thirty-two Defendants, including the former Director of the California Department of Corrections, the Warden, Chief Deputy Warden and Assistant Warden of Calipatria, and twenty-eight Calipatria Correctional Officers, alleging the Defendants used excessive force and denied him medical care in violation of his Eighth Amendment right to be free from cruel and unusual punishment; interfered with his right of access to the courts; classified him based on his race in violation of his Fourteenth Amendment equal protection rights; caused him to be housed in the Administrative Segregation Unit ("Ad-Seg") and the Security Housing Unit ("SHU"), and to forfeit custody credits, following procedurally and substantively deficient disciplinary hearings in violation of his Fourteenth Amendment right to due process; subjected him to inhumane conditions of confinement in the SHU and Ad-Seg in violation of the Eighth Amendment; confiscated and destroyed his personal property in violation of federal due process; conspired to falsify reports, hide exculpatory evidence, and deprive him of his legal and personal property; violated his rights under state laws relating to equal protection and due process; failed to fulfil their duties arising from federal and state laws and regulations; and committed assault and battery. (Compl. at 6-31.) Plaintiff seeks monetary damages and injunctive relief. (Id. at 35.)
The proceedings were assigned to this Court, but have been referred to Magistrate Judge Peter C. Lewis by Local Rule 72.3(e), "Assignment of § 1983 Prisoner Civil Cases to United States Magistrate Judges," pursuant to 28 U.S.C. § 636. Although Plaintiff has consented to Magistrate Judge jurisdiction (see Compl. at 35), unless all parties submit similar consent in writing, Magistrate Judge Lewis will conduct all necessary post-service hearings and submit proposed findings of fact and recommendations for the disposition of all motions in this matter excluded from magistrate judge jurisdiction by 28 U.S.C. § 636(b)(1)(a). See S.D. CAL. CIVLR 72.3(e); FED.R.CIV.P. 73(b).
All parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $250. See 28 U.S.C. § 1914(a). An action may proceed despite a party's failure to prepay the entire fee only if the party is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). A prisoner granted leave to proceed IFP however, remains obligated to pay the entire fee in installments, regardless of whether his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).
Section 1915, as amended by the Prison Litigation Reform Act (" PLRA"), requires that each prisoner seeking leave to proceed IFP submit a "certified copy of [his] trust fund account statement (or institutional equivalent) . . . for the six-month period immediately preceding the filing of the complaint." 28 U.S.C. § 1915(a)(2). Using these certified trust account statements, the Court must assess an initial payment of 20% of (a) the average monthly deposit, or (b) the average monthly balance in the account for the past six months, whichever is greater, and collect that amount as the prisoner's initial partial filing fee, unless he has no current assets with which to pay. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4);Taylor, 281 F.3d at 850. Thereafter, the institution having custody of the prisoner must collect subsequent payments, assessed at 20% of the preceding month's income, in any month in which his account exceeds $10, and forward those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Taylor, 281 F.3d at 847.
The Court finds that Plaintiff has submitted an affidavit which complies with 28 U.S.C. § 1915(a)(1), and that he has attached a certified copy of his trust account statement pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. Plaintiff's trust account statement shows insufficient funds from which to pay a filing fee.
Based upon this financial information, the Court GRANTS Plaintiff's Motion to Proceed IFP and assesses no initial partial filing fee. However, Plaintiff is required to pay the full $250 filing fee mandated by 28 U.S.C. §§ 1914(a) and 1915(b)(1), by subjecting any future funds credited to his prison trust account to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(2).
II. Sua Sponte Dismissal Pursuant to 28 U.S.C. §§ 1915(e)(2) 1915A
Notwithstanding payment of any filing fee or portion thereof, the Prison Litigation Reform Act (" PLRA") requires courts to review complaints filed by all persons proceeding IFP and prisoners against officers or employees of governmental entities and dismiss those or any portion of those found frivolous, malicious, failing to state a claim upon which relief may be granted, or seeking monetary relief from a defendant immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc).
To state a cause of action under 42 U.S.C. § 1983, a plaintiff must allege that defendants, acting under color of state law, deprived him of a right guaranteed under the Constitution or a federal statute. 42 U.S.C. § 1983; Karim-Panahi v. Los Angeles Police Dep't., 839 F.2d 621, 624 (9th Cir. 1988). Where a plaintiff appears pro se in a civil rights case, however, the court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. Id. at 623. The rule of liberal construction is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). Nevertheless, in giving liberal interpretation to a pro se civil rights complaint, the courts may not "supply essential elements of the claim that were not initially pled." Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
A. Allegations in the Complaint
Plaintiff alleges that on November 21, 2003, Facility A at Calipatria, where he was housed at the time, was under an emergency alarm due to an inmate having been stabbed. (Compl. at 6.) Shortly after Plaintiff was searched, officers and inmates began to scuffle with each other, leading to numerous staff and inmate assaults. (Id.) After order had been restored, Plaintiff alleges he was savagely beaten without provocation or justification while in mechanical restraints by Defendants Biondo, Senkel, Valenzuela, Picket, Manzano, Padilla and Harbert, while Defendants Mireles, Rocha, Alvarado, Ochoa and Pedrosa looked on without intervening. (Id. at 6-7.) Plaintiff alleges he laid on the ground handcuffed for ten hours without water, food or use of the restroom, and that Defendants Valenzuela, Picket, Padilla, Harbert, Mireles, Rocha, Alvarado, Ochoa, Pedrosa and Figueroa prevented him from receiving medical attention for his injuries the entire time. (Id. at 8, 23.) Plaintiff alleges Defendant Hunt failed to properly supervise his transportation to Ad-Seg, during which Defendant Grady slammed Plaintiff's head into a wall while he was handcuffed with his hands behind his back, knocking out his front teeth. (Id. at 8-9.)
The next day, November 22, 2003, while in Ad-Seg, Plaintiff alleges he refused Defendant Rodriguez' request to sign a receipt for his personal property which had been taken from his cell in general population. (Id. at 10.) He later received a form listing his property signed by Defendants Rodriguez, Leopheart, and John Doe No. 1. (Id.) Plaintiff attempted to retrieve his property but received only a federal habeas petition he had prepared several days before, which he then mailed to, and was accepted for filing by, the district court for the Central District of California. (Id. at 11.) Plaintiff alleges that although a motion to dismiss that federal petition was denied, he was unable to file a traverse to the respondent's answer because his legal papers were confiscated and his requests for access to them in Ad-Seg were denied by Defendants Woodford and Ryan. (Id.) He alleges his property was confiscated without a preor post-deprivation hearing. (Id. at 27.)
Plaintiff alleges he is Hispanic and that Defendants Woodford, Ryan, Ochoa, Bourland, Builteman, Tapia, Kellerman, Janda, Bell and Leapheart apply a classification system which is inherently racist in that it assumes Hispanic inmates are presumed to be involved in gangs. (Id. at 12, 24.) He contends he was classified as "Southern Hispanic," and was later found guilty by Defendant Din of attempted murder of a peace officer based solely on that racial classification. (Id. at 12-13.) As a result, Plaintiff received an 18-month SHU term. (Id. at 13.)
Plaintiff was issued a Rules Violation Report on December 20, 2003, charging him with attempted murder of a peace officer arising from the November 21, 2003 incident. (Id. at 14.) A disciplinary hearing was held on January 17, 2004, at which Plaintiff alleges he was denied the right to call witnesses, had false evidence submitted, and was found guilty of attempted murder without sufficient evidence based solely on his ethnicity. (Id. at 14-17, 24.) Plaintiff was assessed 360 days forfeiture of custody credits and a SHU term was recommended; the charge was later reduced to assault on staff with a loss of 180 days of custody credits and imposition of an 18-month SHU term. (Id. at 15-16.) Plaintiff was transferred to the California Correctional Institution ("CCI") at Tehachapi, California, on November 17, 2004, to serve the SHU term, and returned to Calipatria on April 13, 2005, to face charges in the Imperial County Superior Court regarding the assault on staff. (Id. at 17.) Plaintiff remained in Ad-Seg at Calipatria despite the fact that other inmates involved in the incident had been release to general population. (Id. at 18.)
Plaintiff alleges he has been continuously housed at Calipatria's Ad-Seg or CCI's SHU since November 21, 2003, and that conditions of confinement there are cruel and unusual. (Id. at 18-20.) He alleges Defendants Leapheart, Rodriguez and John Doe conspired to deprive him of his legal documents and other property by failing to list them on the property form. (Id. at 25.) He alleges Defendants Valenzuela, Padilla and Pickett conspired to assault him, Defendants Biondo, Lomer, Ryan, Bourland, Bell and Kellerman conspired to falsify their reports, and Defendants Din and Kissel conspired to hide exculpatory evidence. (Id.)
Finally, Plaintiff purports to bring claims under state law for assault and battery, due process in the deprivation of his property and placement and retention in Ad-Seg and the SHU, and "violation of mandatory duties" under state and federal laws. (Id. at 26-31.) Plaintiff seeks an injunction preventing his classification as a "Southern Hispanic," as well as unspecified monetary damages. (Id. at 35.)
B. Eighth Amendment Claims
The allegations in the Complaint regarding violation of Plaintiff's Eighth Amendment rights regarding the use of excessive force and denial of medical care are adequate to survive the screening provisions of 28 U.S.C. § 1915(e)(2) as to Defendants Valenzuela, Grady, Biondo, Senkel, Pickett, Manzano, Padilla, Harbert, Mireles, Rocha, Alvarado, Ochoa and Pedrosoa. (Compl. at 6-9.) Plaintiff alleges that each of these Defendants personally participated in beating him while he was in mechanical restraints without justification or provocation, or watched without intervening while the others beat him, and/or prevented him from receiving medical attention for his injuries. (Id.)
The allegations do not state an Eighth Amendment claim against Defendants Hunt or Figueroa however, the only other two Defendants against whom Plaintiff seeks to present an Eighth Amendment claim. Plaintiff merely alleges Defendant Figueroa provided emergency medical attention immediately after Plaintiff was injured, but that Figueroa disagreed with Plaintiff's own assessment that he needed further medical attention. (Id. at 7.) Differences in judgment between an inmate and prison medical personnel regarding appropriate medical diagnosis, treatment or placement are simply not enough to establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989);Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). If Plaintiff wishes to proceed with an Eighth Amendment claim against Defendant Figueroa for denial of medical care, he must allege facts which show that Defendant Figueroa was "deliberately indifferent to his serious medical needs." Helling v. McKinney, 509 U.S. 25, 32 (1993); Estelle v. Gamble, 429 U.S. 97, 106 (1976). In order to show deliberate indifference, he must allege sufficient facts to indicate: (1) that his medical need was "serious" and (2) that prison officials acted or failed to act in light of that need with a "culpable state of mind." Wilson v. Seiter, 501 U.S. 294, 302 (1991). The indifference to medical needs also must be substantial; inadequate treatment due to malpractice, or even gross negligence, does not amount to a constitutional violation. Estelle, 429 U.S. at 106; Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). Additionally, a mere delay in treatment is insufficient to state a claim unless Plaintiff states facts which show that the delay caused him some further harm. Housewright, 900 F.2d at 1335; Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985).
Plaintiff also alleges that Defendant Hunt failed to supervise Plaintiff's transportation to Ad-Seg during which Defendant Grady assaulted Plaintiff. (Id. at 8.) There is no respondent superior liability under 42 U.S.C. § 1983. Palmer v. Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). Instead, "[t]he inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation." Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). In order to avoid the respondent superior bar, Plaintiff must allege personal acts by each individual Defendant which have a direct causal connection to the constitutional violation at issue. See Sanders v. Kennedy, 794 F.2d 478, 483 (9th Cir. 1986); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Supervisors may only be held liable for the allegedly unconstitutional violations of a subordinate if Plaintiff alleges specific facts which show: (1) how or to what extent they personally participated in or directed a subordinate's actions, and (2) in either acting or failing to act, they were an actual and proximate cause of the deprivation of Plaintiff's constitutional rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
Plaintiff alleges Defendant Hunt was responsible for transporting all the prisoners in the yard to Ad-Seg after the scuffle. There are no allegations regarding what Defendant Hunt did or failed to do during Plaintiff's transportation to Ad-Seg which caused Defendant Grady to allegedly assault Plaintiff, other than a conclusory allegation that it was foreseeable that Grady would assault Plaintiff. (Compl. at 8.) If Plaintiff wishes to proceed with a claim against Defendant Hunt, he must set forthspecific factual allegations regarding Defendant Hunt's individual participation in the alleged Eighth Amendment violation by Defendant Grady.
For the reasons which follow, the Court finds that the allegations in the Complaint against the remaining Defendants also fail to state a section 1983 claim upon which relief may be granted. The Court will notify Plaintiff of the defects of his remaining claims and provide him with the opportunity to file an amended complaint in an attempt to cure these defects, or to request the Court to direct service of the Complaint on Defendants Valenzuela, Grady, Biondo, Senkel, Pickett, Manzano, Padilla, Harbert, Mireles, Rocha, Alvarado, Ochoa and Pedrosoa.
C. Access to Courts
Plaintiff alleges that his personal property, including his legal papers, were confiscated from his cell in general population when he was placed in Ad-Seg following the incident on November 21, 2003. (Compl. at 10.) The property included twenty-two volumes of court transcripts, copies of petitions and opinions filed in the state courts apparently relating to the direct appeal of his conviction, and a recently prepared federal habeas petition. (Id.) Plaintiff was issued a list of his property which omitted his legal documents, a radio and tennis shoes. (Id.) Plaintiff requested to be issued property which was allowable in Ad-Seg under prison regulations, including his legal papers, but was given only his federal habeas petition. (Id. at 11.)
Plaintiff informed Defendant Warden Ryan that he needed his legal papers while in Ad-Seg, but alleges he was denied a post-deprivation hearing. (Id.) Plaintiff alleges that although his federal habeas petition was accepted for filing in the District Court for the Central District of California, and that the respondent's motion to dismiss the petition was later denied, he was unable to file a traverse to the respondent's answer to his petition due to the actions of Defendants Rodriguez, Doe, Leapheart, Wisocki, Woodford, Edwards and Ryan in preventing him from possessing his legal papers while housed in Ad-Seg. (Id.)
Inmates "have a constitutional right to petition the government for redress of their grievances, which includes a reasonable right of access to the courts." O'Keefe v. Van Boening, 82 F.3d 322, 325 (9th Cir. 1996); Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995). In order to establish a violation of the right of access to the courts, however, an inmate must allege facts sufficient to show that: (1) a nonfrivolous legal attack on his conviction, sentence, or conditions of confinement has been frustrated or impeded, and (2) he has suffered an actual injury as a result. Lewis v. Casey, 518 U.S. 343, 353-55 (1996). An "actual injury" is defined as "actual prejudice with respect to contemplated or existing litigation, such as the inability to meet a filing deadline or to present a claim." Id. at 348.
Plaintiff has not stated a claim for denial of access to the courts because he has not alleged any facts sufficient to show that he has been precluded from pursuing a non-frivolous direct or collateral attack upon either his criminal conviction or sentence or the conditions of his current confinement. See Lewis, 518 U.S. at 355 (right to access to the courts protects only an inmate's need and ability to "attack [his] sentence, directly or collaterally, and . . . to challenge the conditions of [his] confinement."); see also Christopher v. Harbury, 536 U.S. 403, 415 (2002) (the non-frivolous nature of the "underlying cause of action, whether anticipated or lost, is an element that must be described in the complaint.") Rather, Plaintiff merely alleges that he was unable to file a traverse to the respondent's answer because he did not have access to his state court filings and state court opinions regarding his direct appeal. Such allegations fail to satisfy the actual injury requirement. Although federal habeas petitioners are often permitted to file a traverse to a respondent's answer, Rule 5, and the general procedure set up by the entire set of rules following 28 U.S.C. § 2254, "does not contemplate a traverse to the answer, except under special circumstances." Rule 5, 28 U.S.C. foll. § 2254 advisory committee notes. "In actual, practice, the traverse tends to be a mere pro forma refutation of the [answer], serving little if any expository function. In the interests of a more streamlined and manageable habeas corpus procedure, it is not required except in those instances where it will serve a truly useful purpose." Id. Without further allegations regarding the effect, if any, on Plaintiffs ability to litigate his federal habeas action without filing a traverse, including allegations regarding why access to his state court documents was necessary in that regard, he has failed to satisfy the pleading standards for alleging an actual injury under Lewis. Christopher, 536 U.S at 415.
To the extent Plaintiff's allegations that the Defendants denied his administrative grievances regarding the return of his property is an attempt to state a due process claim, he has failed to state a claim. The Ninth Circuit has held that prisoners have no protected interest in an inmate grievance procedure. See Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (finding that the due process clause of the Fourteenth Amendment creates "no legitimate claim of entitlement to a [prison] grievance procedure").
To the extent Plaintiff intended to present a claim that his personal property was taken without due process of law in violation of the Fourteenth Amendment, such a claim will not state a federal cause of action under section 1983 if Plaintiff has an adequate post-deprivation state remedy. See Hudson v. Palmer, 468 U.S. 517, 533 (1984). The California Tort Claims Act ("CTCA") provides an adequate post-deprivation state remedy for the random and unauthorized taking of property. Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994).
D. Due Process
Plaintiff alleges that he was issued a Rules Violation Report on December 20, 2003, charging him with attempted murder on a peace officer. (Compl. at 14.) He alleges the investigating employee, Defendant Kissel, breached his legal duty by failing to question relevant witnesses. (Id.) A disciplinary hearing was held on January 17, 2004, conducted by Defendant Din, who found Plaintiff guilty of attempted murder of a peace officer based solely on the fact that Plaintiff is Hispanic. (Id. at 13-15.) Plaintiff was accessed a loss of 360 days of custody credits and a recommendation for a SHU term. (Id. at 15.) The charge was later reduced, again allegedly without due process, to battery on a peace officer, the forfeiture of custody credits was reduced to 180 days, and Plaintiff received an 18-month SHU term. (Id. at 16.) Plaintiff claims he has a protected liberty interest in the loss of his custody credits and in being free from placement in Ad-Seg or the SHU without due process of law. (Id.)
Plaintiff's due process claims amounts to an attack on the length of his continuing incarceration, and as such, will not be cognizable under 42 U.S.C. § 1983 unless and until Plaintiff is able to show that the forfeiture of his custody credits has already been invalidated. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). In Heck, the Supreme Court held that "in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a section 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Id. at 486-87. A civil rights claim challenging the legality of a conviction or the length of confinement that has not been so invalidated is not cognizable under section 1983. Id. at 487; Edwards v. Balisok, 520 U.S. 641, 643 (1997).
In order for Plaintiff to succeed on a claim for damages based on claims which, if successful, would require the restoration of his custody credits, he must first demonstrate that the judgment which resulted in the forfeiture of his credits has been declared invalid. Heck, 512 U.S. at 486-87; see Preiser v. Rodriguez, 411 U.S. 475, 488-500 (1973) (challenges to the fact or duration of confinement are appropriately brought by petition for a writ of habeas corpus, but challenges to conditions of confinement are appropriately brought pursuant to § 1983). The Court will not convert the present action into a habeas petition due to the implications of the abuse of the writ doctrine. See Blueford v. Prunty, 108 F.3d 251, 255 (9th Cir. 1997) (holding that district court should not treat defective section 1983 action seeking restoration of custody credits as a habeas petition).
Plaintiff has not alleged that he has had the forfeiture of his custody credits declared invalid as required by Heck. Therefore, his Complaint fails to state a claim upon which relief may be granted with respect to denial of due process and equal protection in regards to the disciplinary proceedings, and these claims are subject to dismissal without prejudice. Heck, 512 U.S. at 486-87. If Plaintiff wishes to proceed with these claims, he must allege facts demonstrating that the claims are not subject to the Heck bar by setting forth specific factual allegations demonstrating that he was denied due process in connection to a disciplinary proceeding which did not also result in the forfeiture of custody credits or, if custody credits were forfeited, that the forfeiture has been invalidated.
E. Equal Protection/Conspiracy
Plaintiff alleges he is Hispanic and that Defendants Woodford, Ryan, Ochoa, Bourland, Builteman, Tapia, Kellerman, Janda, Bell and Leapheart conspired to apply a classification system which is inherently racist in that it assumes Hispanic inmates are presumed to be involved in gangs. (Compl. at 12, 24.) He seeks to present claims under 42 U.S.C. §§ 1983 and 1985 on the basis that the classification system violates his Fourteenth Amendment right to equal protection. (Id.) Plaintiff contends he was classified as "Southern Hispanic," and was later found guilty by Defendant Din of the disciplinary infraction of attempted murder of a peace officer based solely on that racial classification. (Id. at 12-13.) As a result, Plaintiff received an 18-month SHU term and forfeiture of custody credits. (Id. at 7, 13.)
Plaintiff alleges Defendants Leapheart, Rodriguez and John Doe conspired to deprive him of his legal documents and other property by failing to list them on the property form. (Id. at 25.) He also alleges Defendants Valenzuela, Padilla and Pickett conspired to assault him, Defendants Biondo, Lomer, Ryan, Bourland, Bell and Kellerman conspired to falsify their reports, and Defendants Din and Kissel conspired to hide exculpatory evidence. (Id.)
Plaintiff first alleges a conspiracy to deprive him of his right to equal protection under § 1985. Section 1985 proscribes, among other things, conspiracies to deprive any person the equal protection or equal privileges and immunities under the laws.See 42 U.S.C. § 1985(3); Sanchez v. City of Santa Ana, 936 F.2d 1027, 1039 (9th Cir. 1990). Plaintiff's allegations must be sufficient to show: (1) a conspiracy to deprive him, as a member of a protected class, equal protection of the laws, (2) an act by one of the conspirators in furtherance of the conspiracy, and (3) a personal injury, property damage or deprivation of a right or privilege guaranteed to him as a citizen of the United States.Gillespie v. Civiletti, 629 F.2d 637, 641 (9th Cir. 1980).
In addition, Plaintiff must allege racial or "perhaps otherwise class-based" discriminatory animus behind the conspirator's actions. See Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). Moreover, Plaintiff's Complaint must contain facts describing the overt acts that Defendants committed in furtherance of the conspiracy. Id. at 102-03; Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 626 (9th Cir. 1988). Mere allegations that the Defendants engaged in a conspiracy are insufficient to state a claim for conspiracy to violate Plaintiff's equal protection rights under section 1985. See Sanchez, 936 F.2d at 1039.
Plaintiff has failed to set forth anything other than conclusory allegations that the Defendants acted pursuant to a conspiracy with respect to any of the conspiracy allegations, and has failed to set forth factual allegations demonstrating there was any meeting of the minds between any of the Defendants to violate his civil rights. The allegations as currently set forth with respect to racial classification merely allege a regional classification system for Hispanics. There are no specific factual allegations regarding Plaintiff's contention that he is classified as affiliated with a gang. Thus, Plaintiff has failed to state a claim for denial of his equal protection rights or a conspiracy to deny him his equal protection rights. Even if Plaintiff could cure these defects of pleading an equal protection and conspiracy claim, his claims in this regard are nevertheless subject to the Heck bar as described above, because the only injury alleged is that he was convicted of the disciplinary infraction and had custody credits forfeited as a result of that classification.
Plaintiff also alleges a conspiracy to violate his equal protection rights under section 1983. As with a conspiracy under section 1985, Plaintiff must allege facts demonstrating the Defendants had an agreement to deprive Plaintiff of his civil rights. Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998). Conclusory allegations of a conspiracy are insufficient to state a claim under section 1983. Id.; Woodrum v. Woodward County, 866 F.2d 1121, 1126 (9th Cir. 1989). As with his section 1985 conspiracy claim, Plaintiff has failed to set forth any non-conclusory allegations that the Defendants reached an agreement to deprive Plaintiff of his civil rights. If Plaintiff wishes to proceed with these claims, he must allege facts sufficient to demonstrate the Defendants reached an agreement to violate his civil rights, and must set forth allegations of an injury arising from the alleged denial of his equal protection rights other than the due process in the disciplinary proceedings which resulted in the loss of custody credits unless he also alleges facts which satisfy theHeck requirement.
F. Conditions of Confinement in Ad-Seg and the SHU
Plaintiff alleges he has been continuously housed at Calipatria's Ad-Seg or CCI's SHU since November 21, 2003, and that conditions of confinement there are cruel and unusual. (Id. at 18-20.) Plaintiff seeks to hold Defendants Bourland, Ochoa, Bedford, Janda, Price, Greenwood, Din, Ryan, Butler, Bell and Kellerman liable for his claim of unconstitutional conditions of confinement based on allegations they are responsible for his placement in Ad-Seg and the SHU. (Id.)
The Eighth Amendment prohibits any punishment which violates civilized standards of decency or involves the "unnecessary and wanton infliction of pain." Ingraham v. Wright, 430 U.S. 651, 670 (1977) (citing Estelle v. Gamble, 429 U.S. 97, 102-03 (1976)). An Eighth Amendment claim contains both an objective and a subjective component. See Wilson v. Seiter, 501 U.S. 294, 298 (1991); Osolinski v. Lane, 92 F.3d 934, 937 (9th Cir. 1996). The objective component requires the plaintiff to demonstrate that he has been subjected to specific deprivations that are so serious that they deny him "the minimal civilized measure of life's necessities." Rhodes v. Chapman, 452 U.S. 337, 347 (1981); see also Hudson v. McMillian, 503 U.S. 1, 8-9 (1992). "Because routine discomfort is `part of the penalty that criminal offenders pay for their offenses against society,' . . . `only those deprivations denying "the minimal civilized measure of life's necessities" are sufficiently grave to form the basis of an Eighth Amendment violation.'" Hudson, 503 U.S. at 8-9 (quoting Rhodes, 452 U.S. at 347). The subjective component requires the plaintiff to demonstrate that the prison officials acted wantonly, with a reckless disregard of a substantial risk of serious harm. See Farmer v. Brennan, 511 U.S. 825, 834-36 (1994); Wilson, 501 U.S. at 298-99.
Even assuming the allegations in the Complaint regarding the conditions of confinement in Ad-Seg or the SHU are sufficient to satisfy the objective component of an Eighth Amendment violation, Plaintiff has not satisfied the subjective component. There are no allegations regarding who is responsible for the conditions of confinement, merely allegations that the Defendants are responsible for Plaintiff's placement there. As set forth above, the allegations regarding denial of due process in regard to the disciplinary proceedings which resulted in his placement in Ad-Seg or the SHU do not satisfy the Heck pleading requirement. If Plaintiff wishes to pursue claims regarding the conditions of confinement in Ad-Seg or the SHU, he must identify as Defendants the individuals whom he contends are responsible for the conditions there, not simply individuals whom he contends are responsible for his being sent there. He must also set forth facts sufficient to satisfy the subjective component of an Eighth Amendment violation. He must name individual Defendants and allege facts demonstrating those Defendants were aware of the alleged conditions of confinement and deliberately ignored a substantial risk of harm to Plaintiff arising from those conditions.
G. State Law Claims
Finally, Plaintiff purports to bring claims under state law for assault and battery, due process in the deprivation of his property and placement and retention in Ad-Seg and the SHU, and "violation of mandatory duties" under state laws. (Id. at 26-31.) The Court has power to hear and decide supplemental state law claims as long as Plaintiff has stated a valid section 1983 claim. Acri v. Varian Associates, 114 F.3d 999, 1000 (9th Cir. 1998). The Court is under no duty to sua sponte consider whether to accept or decline supplemental jurisdiction however, id., and the Court will make such a determination, if at all, at a later stage of these proceedings.
III. Leave to Amend
As set forth above, all of the claims presented in the Complaint are dismissed sua sponte without prejudice and with leave to amend with the sole exception of Plaintiff's Eighth Amendment claims based on excessive use of force and denial of medical treatment against Defendants Valenzuela, Grady, Biondo, Senkel, Pickett, Manzano, Padilla, Harbert, Mireles, Rocha, Alvarado, Ochoa and Pedrosoa. Plaintiff has the choice of: (1) filing a First Amended Complaint in which he attempts to cure some or all of the pleading defects identified above; or (2) requesting the Court to direct the United States Marshal to serve Defendants Valenzuela, Grady, Biondo, Senkel, Pickett, Manzano, Padilla, Harbert, Mireles, Rocha, Alvarado, Ochoa and Pedrosoa with a copy of the Complaint, which now contains only claims alleging that these Defendants used excessive force and denied him medical care in violation of his Eighth Amendment rights, and Plaintiff's supplemental state law claims.
If Plaintiff chooses to file a First Amended Complaint he is warned that it will be subject to the screening provisions of 28 U.S.C. § 1915(e)(2). The First Amended Complaint must be complete in itself without reference to any previously filed version of the complaint. See S.D. CAL. CIV L R 15.1. Defendants not named and all claims not re-alleged in the amended complaint will be considered waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
IV. Conclusion and Order
Based on the foregoing, IT IS ORDERED that:
1. Plaintiff's Motion to Proceed IFP per 28 U.S.C. §§ 1915(a) and 1915A [Doc. No. 2] is GRANTED.
2. The Secretary of the California Department of Corrections and Rehabilitation, or his designee, shall collect from Plaintiff's prison trust account the $250 balance of the filing fee owed in this case by collecting monthly payments from the account in an amount equal to twenty percent (20%) of the preceding month's income and forward payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION.
3. The Clerk of the Court is directed to serve a copy of this Order on Roderick Q. Hickman, Secretary, California Department of Corrections and Rehabilitation, Post Office Box 942883, Sacramento, California 94283-0001.
IT IS FURTHER ORDERED that:
4. All claims in the Complaint against all Defendants are DISMISSED without prejudice for failing to state a claim upon which relief may be granted with the exception of Plaintiff's Eighth Amendment claims for use of excessive force and denial of medical care against Defendants Valenzuela, Grady, Biondo, Senkel, Pickett, Manzano, Padilla, Harbert, Mireles, Rocha, Alvarado, Ochoa and Pedrosoa, and Plaintiff's supplemental state law claims. See 28 U.S.C. §§ 1915(e)(2) and 1915A.
5. Plaintiff is granted forty-five (45) days from the date this Order is stamped "Filed" in which to file a First Amended Complaint in an attempt to cure the deficiencies of pleading identified in this Order.
6. Plaintiff is alternately granted forty-five (45) days from the date this Order is stamped "Filed" in which to request the Court to direct the United States Marshal to serve a copy of the Complaint, which now contains only an Eighth Amendment claim against Defendants Valenzuela, Grady, Biondo, Senkel, Pickett, Manzano, Padilla, Harbert, Mireles, Rocha, Alvarado, Ochoa and Pedrosoa, and supplemental state law claims, on these Defendants.
IT IS SO ORDERED.