
    Omar HERNANDEZ, Plaintiff, v. Greg COX et al., Defendants.
    No. 2:13-cv-00698-RCJ-VCF.
    United States District Court, D. Nevada.
    Signed Sept. 6, 2013.
    
      Omar Hernandez, Indian Springs, NV, pro se.
   ORDER

ROBERT C. JONES, District Judge.

Plaintiff Omar Hernandez, a prisoner in the custody of the Nevada Department of Corrections, has lodged a Complaint pursuant to 42 U.S.C. § 1983, attached to his Application to Proceed in Forma Pauperis. The Court grants the Application and dismisses the Complaint pursuant to 28 U.S.C. § 1915A, with leave to amend.

I. LEGAL STANDARDS

A. Screening

A federal court must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity, officer, or employee. See 28 U.S.C. § 1915A(a). In its review, a court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. See id. § 1915A(b)(l)-(2). Dismissal of a complaint for failure to state a claim upon which relief can be granted is provided for by Federal Rule of Civil Procedure 12(b)(6), and the court applies the same standard under § 1915A. When a court dismisses a complaint for failure to state a claim, 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. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir.1995).

A motion to dismiss under Rule 12(b)(6) tests the complaint’s sufficiency. See N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir.1983). When considering a motion to dismiss under Rule 12(b)(6) for failure to state a claim, dismissal is appropriate only-when the complaint does not give the defendant fair notice of a legally cognizable claim and the grounds upon which it rests. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In considering whether a complaint is sufficient to state a claim, a court takes all material allegations as true and construe them in the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.1986). A court, however, is not required to accept as true unwarranted deductions of fact or unreasonable inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001). A formulaic recitation of a cause of action with conclusory allegations is not sufficient; a plaintiff must plead facts pertaining to his own case making a violation plausible, not just possible. Ashcroft v. Iqbal, 556 U.S. 662, 677-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955) (“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”). In other words, under the mod-" ern interpretation of Rule 8(a), a plaintiff must not only specify a cognizable legal theory (Conley review), he must also plead the facts of his own case so that the court can determine whether he has any basis for relief under the legal theory he has specified, assuming the facts are as he alleges (Twombly-Iqbal review).

“Generally, a district court may not consider any material beyond the pleadings in ruling on á Rulé 12(b)(6) motion. However, material which is properly submitted as part of the complaint may be considered.” Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n. 19 (9th Cir.1990) (citation omitted). Similarly, “documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss” without converting the motion to dismiss into a motion for summary judgment., Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.1994). Under Federal Rule of Evidence 201, a court may take judicial notice of “matters of public record.” Mack v. S. Bay Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir.1986).

Finally, all or part of a complaint filed by a prisoner may be dismissed sua sponte if the prisoner’s claims lack an arguable basis in law or in fact. This includes claims based on legal conclusions that are untenable, e.g., claims against defendants who are immune from suit or claims of infringement of a legal interest which clearly does not exist, as well as claims based on fanciful factual allegations, e.g., fantastic or delusional scenarios. See Neitzke v. Williams, 490 U.S. 319, 327-28, 109 S.Ct.. 1827, 104 L.Ed.2d 338 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir.1991).

B. Exhaustion

“The Prison Litigation Reform Act requires that a prisoner exhaust available administrative remedies before bringing a federal action concerning prison conditions.” Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir.2009) (citing 42 U.S.C. § 1997e(a)). A prison system’s own requirements “define the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). The Nevada Department of Corrections utilizes a three-stage grievance procedure: an informal grievance, a first level grievance, and a second level grievance. See NDOC Admin. Reg. 740 (Inmate Grievance Procedure), available at http://www.doc.nv.gov/sites/doc/files/pdiy AR740.pdf.

Although once within the discretion of the district court, the exhaustion of administrative remedies is now mandatory. Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). Those remedies “need not meet federal standards, nor must they be ‘plain, speedy, and effective.’ ” Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) (citing Booth, 532 U.S. at 739-40 n. 5, 121 S.Ct. 1819). Even when the prisoner seeks remedies not available in administrative proceedings, notably money damages, exhaustion is still required prior to filing suit. Booth, 532 U.S. at 741, 121 S.Ct. 1819. The Supreme Court has strictly construed section 1997e(a). Id. at 741 n. 6, 121 S.Ct. 1819 (“We will not read futility or other exceptions into statutory exhaustion requirements where Congress has provided otherwise.”).

The failure to exhaust administrative remedies as required by § 1997e(a) is an affirmative defense that a defendant bears the burden of proving. Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007); Wyatt v. Terhune, 315 F.3d 1108, 1117 n. 9 (9th Cir.2003), cert. denied, 540 U.S. 810, 124 S.Ct. 50, 157 L.Ed.2d 23 (2003). However, if the affirmative defense of non-exhaustion appears on the face of the complaint, a defendant need not provide evidence showing non-exhaustion. See Jones, 549 U.S. at 215, 127 S.Ct. 910. Failure to exhaust is treated as a matter in abatement, not going to the merits of the claim, and is properly raised in an unenumerated Rule 12(b) motion. Wyatt, 315 F.3d at 1119. A court may look beyond the pleadings and decide disputed issues of fact without converting the motion into one for summary judgment. Id. “[I]f the district court concludes that the prisoner has not exhausted nonjudicial remedies, the proper remedy is dismissal of the claim without prejudice.” Id. at 1119-20.

For the purposes of screening, the Court will assume all claims have been exhausted. The Court will not more closely examine the issue unless some claims survive screening and Defendants file motions alleging non-exhaustion of the surviving claims.

II. ANALYSIS

Plaintiff, a prisoner at High Desert State Prison, has alleged violations of his constitutional rights while incarcerated at Southern Desert Correctional Center. He alleges that in July 2011, Warden Williams placed Plaintiff in segregation due to suspicions that he was encouraging a “food strike” among inmates. He was released the next day, and a food strike did occur, though Plaintiff himself did not refuse to eat. He and two other inmates were returned to segregation, and he received a notice of charges for a major violation. Senior Correctional Officer Walden denied Plaintiffs two requested witnesses for his disciplinary hearing. Sergeant Ron Jaeger conducted the disciplinary hearing four hours after Plaintiff received the notice of charges, and he also denied Plaintiff any witnesses. Investigator Harris apparently submitted a report for the hearing that indicated Plaintiffs guilt based upon “information received,” but the hearing record does not state what that information was. Plaintiff was found guilty and sentenced to 168 days of disciplinary segregation and a disciplinary transfer. Assistant Warden Burson denied Plaintiffs grievances about the disciplinary proceedings. Although listed as three separate counts, Plaintiff in substance alleges a single violation of his Fourteenth Amendment due process rights.

To 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, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). “Prisoners 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, 94 S.Ct. 2963, 41 L.Ed.2d 935 (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, 94 S.Ct. 2963.

However, 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. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (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.1995); 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 or characterized by the prisoner, a court must examine the substance of the alleged deprivation and determine whether it constitutes an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life” before it determines whether Wolff-type procedural protections apply. Sandin, 515 U.S. at 484, 115 S.Ct. 2293.

Showing that a deprivation is “atypical” with respect to the hardships of ordinary prison life is difficult, because prison conditions are typically harsh. Prisoners are. by definition segregated from the public at large, and they are typically segregated even from other prisoners for the vast majority of any given day, except for perhaps one other cell mate. Indeed, the Court of Appeals has noted that “it would be difficult (we do not say impossible) to make disciplinary segregation sufficiently more restrictive than the conditions of the general population ... to count as an atypical and significant deprivation of liberty[.]” Serrano v. Francis, 345 F.3d 1071, 1078 (9th Cir. 2003) (Aldisert, J.) (quoting Wagner v. Hanks, 128 F.3d 1173, 1174 (7th Cir. 1997)) (alterations in original). A court in this Circuit looks at three factors under Sandin: “(1) whether the conditions of confinement mirrored those conditions imposed upon inmates in analogous discretionary confinement settings, namely administrative segregation and protective custodyf;] (2) the duration and intensity of the conditions of confinement; and (3) whether the change in confinement would inevitably affect the duration of [the prisoner’s] sentence.” See Chappell v. Mandeville, 706 F.3d 1052, 1064-65 (9th Cir.2013) (second alteration in original; internal quotation marks omitted). In other words, if the conditions in segregation are worse that those a prisoner will typically encounter in prison, the Court must still consider whether the conditions are extreme enough in nature and duration or whether they will necessarily affect, the length of a prisoner’s sentence. Segregation may lead to a cognizable deprivation of liberty, for example, if the conditions of segregation, although not in themselves harsh enough to implicate a cognizable liberty interest, result in the deprivation of some other interest particular to the aggrieved prisoner. See Serrano, 345 F.3d at 1074, 1078-79 (finding that segregation of a partially paralyzed plaintiff for almost three months to an area where he could not use the wheelchair he was permitted in the general population, such that he could not shower and had difficulty using the bathroom and the bed, implicated a cognizable liberty interest).

Plaintiff here alleges only the pure fact of segregation and its duration, not the conditions of segregation or that it necessarily increased the length of his sentence. The Court therefore dismisses the due process claim, with leave to amend. In order to invoke Wolff-type due process protections, Plaintiff must allege facts indicating that the conditions he experienced in disciplinary segregation were atypically harsh with respect to conditions in the general population and conditions the State has discretion to impose, such as in administrative segregation or protective custody, or that his segregation necessarily increased the length of his sentence.

CONCLUSION

IT IS HEREBY ORDERED that the Application to Proceed in Forma Pauperis (ECF No. 1) is GRANTED.

IT IS FURTHER ORDERED that the Clerk shall FILE the Complaint (ECF No. 1-1).

IT IS FURTHER ORDERED that the Complaint is DISMISSED, with leave to amend.

IT IS FURTHER ORDERED that Plaintiff shall have thirty (30) days from the date this Order is entered into the electronic docket to file an amended complaint. The amended complaint must be a complete document in and of itself and will supersede the original Complaint in its entirety. No allegations, parties, or requests for relief that are not presented in the amended complaint will be considered.

IT IS FURTHER ORDERED that Plaintiff shall place the words “FIRST AMENDED” immediately above “Civil Rights Complaint Pursuant to 42 U.S.C. § 1983” on page 1 in the caption, and Plaintiff shall place the case number “2:13-CV-00698-RCJ-VCF” above the words “FIRST AMENDED” in the space for “Case No.”

IT IS FURTHER ORDERED that the Clerk shall send Plaintiff a blank section 1983 civil rights complaint form with instructions, along with one copy of the original Complaint.

IT IS SO ORDERED.  