United States District Court, D. Nevada
C. JONES United States District Judge
a prisoner civil rights complaint pursuant to 42 U.S.C.
§ 1983. The Court now screens the Complaint under 28
U.S.C. § 1915A.
FACTS AND PROCEDURAL HISTORY
has sued Defendants Correctional Officer Drew, Caseworker
Irvin, Sergeant Clark, Lieutenant Hartman, and Correctional
Officer Avila1 for events that occurred while Plaintiff was
incarcerated at Northern Nevada Correctional Center
(“NNCC”). (See Compl., ECF No. 1-1).
Plaintiff alleges that on the morning of October 5, 2015,
while working as a porter in Unit 7A, he approached Drew and
asked if he could give a book to one of the inmates in the
unit. (Id. 4). Drew responded by asking whether the
inmate was a “Mex” or a “Buck, ”
derogatory comments directed at the inmates he had eaten
breakfast with that morning-a Hawaiian native and a Cuban
native. (Id. at 3-4). Plaintiff replied, “I
don't know what race he [is].” (Id.). Drew
asked again, and Plaintiff responded in the same way.
(Id. 4). Drew became angry and told him he could not
give the book to the inmate. (Id. at 3). About 30
minutes later, Drew called Plaintiff out of the janitorial
closet, told Plaintiff where to stand, and asked again what
Plaintiff was going to do with the book. (Id. 3-4).
Plaintiff pointed toward an inmate and said he was going to
give the book to that inmate. (Id.). Drew responded
by grabbing Plaintiff's hand and throwing Plaintiff down.
(Id.). Drew then charged Plaintiff with staff
assault and placed him in administrative segregation.
(Id.). Drew falsified the report of the incident by
saying that Plaintiff backhanded him, elbowed him, used a mop
against him, and attempted to hit him several times.
(Id.). Defendant Clark reviewed video of the
incident, concluded that Drew's report was “all
lies, ” and dismissed the charges. (Id. 4).
Yet Clark added charges of disobedience and hindrance of
staff and would not let Plaintiff talk or defend himself.
(Id. 2). While Plaintiff was in administrative
segregation, Drew “tormented” him.
(Id.). Plaintiff asked other staff for help and
filed emergency grievances, but they were all denied.
(Id. 4). Plaintiff spent 22 days in administrative
segregation and “lost time.” (Id. 3).
courts must screen cases in which a prisoner seeks redress
from a governmental entity or its officers or employees. 28
U.S.C. § 1915A(a). A court must identify any cognizable
claims and must dismiss claims that are frivolous, malicious,
insufficiently pled, or directed against immune defendants.
See Id. § 1915A(b)(1)-(2). Pleading standards
are governed by Rule 12(b)(6). Wilhelm v. Rotman,
680 F.3d 1113, 1121 (9th Cir. 2012). When a court dismisses a
complaint upon screening, the plaintiff should be given leave
to amend the complaint with directions as to curing its
deficiencies, unless it is clear from the face of the
complaint that the deficiencies could not be cured by
amendment. Cato v. United States, 70 F.3d 1103, 1106
(9th Cir. 1995).
Court denies the Application to Proceed in Forma Pauperis
(ECF No. 1) as moot because Plaintiff is no longer
incarcerated. Plaintiff must file an application to proceed
in forma pauperis by a non-prisoner within thirty (30) days
from the date of this order or pay the full filing fee of
state a claim under § 1983, a plaintiff must allege: (1)
that a right secured by the Constitution or laws of the
United States was violated; and (2) that the alleged
violation was committed by a person acting under color of
state law. See West v. Atkins, 487 U.S. 42, 48
Count I - Due Process
may . . . claim the protections of the Due Process Clause
[and] may not be deprived of life, liberty, or property
without due process of law.” Wolff v.
McDonnell, 418 U.S. 539, 556 (1974). Still, because
prisoners have already been convicted, “the full
panoply of rights due a defendant in [criminal] proceedings
does not apply. [Rather], there must be mutual accommodation
between institutional needs and objectives and the provisions
of the Constitution that are of general application.”
Id. (citations omitted). When a prisoner faces
disciplinary charges, prison officials must provide the
prisoner with: (1) a written statement at least twenty-four
hours before the disciplinary hearing that includes the
charges, a description of the evidence against the prisoner,
and an explanation for the disciplinary action taken; (2) an
opportunity to present documentary evidence and call
witnesses, unless calling witnesses would interfere with
institutional security; and (3) legal assistance where the
charges are complex or the inmate is illiterate. See
Id. at 563-70.
no Wolff-type due process protections apply unless
the result of the hearing is a punishment that impairs a
constitutionally cognizable liberty interest as defined in
Sandin v. Connor, 515 U.S. 472 (1995). Under
Sandin, segregation within prison does not in and of
itself constitute a deprivation of a constitutionally
cognizable liberty interest. E.g., Luken v.
Scott, 71 F.3d 192, 193 (5th Cir. 1997); Rimmer-Bey
v. Brown, 62 F.3d 789, 790-91 (6th Cir. 1995). Although
Sandin concerned administrative segregation, it
applies with equal force to disciplinary segregation, because
the State's motivation is not relevant to the antecedent
inquiry: whether the result of the segregation deprives the
prisoner of a constitutionally cognizable liberty interest.
If the answer to that antecedent question is “no,
” then no procedures at all are constitutionally
“due, ” and a due process claim necessarily
fails. Just as a prison cannot avoid the strictures of the
Due Process Clause simply by labeling segregation as
“protective” or “administrative, ” a
prisoner cannot invoke the Clause simply by characterizing
segregation as “disciplinary” or
“punitive.” No matter how a prisoner's
segregation (or other deprivation) is labeled by the prison