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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

LEONEL CANTU LOPEZ,

Plaintiff, No. CIV S-04-0822 LKK KJM P

vs.

DIANE BUTLER, Warden, et al., 

Defendants. ORDER

 /

Plaintiff is a state prisoner proceeding pro se. On December 27, 2005, he filed a

second amended complaint and requested the appointment of counsel. 

As previously noted, the United States Supreme Court has ruled that district

courts lack authority to require counsel to represent indigent prisoners in § 1983 cases. Mallard

v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the

court may request the voluntary assistance of counsel under 28 U.S.C. § 1915(e)(1). Terrell v.

Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36

(9th Cir. 1990). In the present case, the court does not find the required exceptional

circumstances. Plaintiff’s request for the appointment of counsel will therefore be denied.

Also as previously noted, the court is required to screen complaints brought by

prisoners seeking relief against a governmental entity or officer or employee of a governmental

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entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the

prisoner has raised claims that are legally “frivolous or malicious,” that fail to state a claim upon

which relief may be granted, or that seek monetary relief from a defendant who is immune from

such relief. 28 U.S.C. § 1915A(b)(1),(2). 

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 

Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28

(9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

Cir. 1989); Franklin, 745 F.2d at 1227.

A complaint, or portion thereof, should only be dismissed for failure to state a

claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set

of facts in support of the claim or claims that would entitle him to relief. Hishon v. King &

Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer

v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a

complaint under this standard, the court must accept as true the allegations of the complaint in

question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the

pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor,

Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 

In this complaint, plaintiff alleges that he was accused of participating in a riot

and placed in administrative segregation without an administrative hearing, where he was denied

privileges available to those in general population. Second Amended Complaint (Sec. Am.

Compl.) ¶¶ 13, 14. He alleges specifically that he was unable to attend AA and NA and finish

vocational training, conditions imposed on him by the parole board. Sec. Am. Compl. ¶ 15. He

names T. Langford, a correctional lieutenant, as the one responsible for the placement. 

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When an action deprives an inmate of a state-created liberty interest in an

“unexpected manner” and imposes “atypical and significant hardship on the inmate in relation to

the ordinary incidents of prison life,” a court must decide whether the procedures used before the

deprivation satisfied due process. Sandin v. Conner, 515 U.S. 472, 484 (1995); Wolff v.

McDonnell, 418 U.S. 539 (1983). The factors to be considered are the length of the sentence, the

degree of restraint, whether the action will affect the duration of the inmate’s sentence, and the

difference in conditions. Sandin, 515 U.S. at 486-87; Keenan v. Hall, 83 F.3d 1083, 1089

(1996), amended on denial of rehearing, 135 F.3d 1318 (9th Cir. 1998). 

In Wilkinson v. Austin, 545 U.S. 209, 125 S.Ct. 2384 (2005), the Supreme Court

found that placement in Ohio’s “Supermax” prison imposed an “atypical and significant

hardship” on inmates sent to that facility because such inmates were deprived of almost all

human contact, were subject to an indefinite confinement, and were disqualified from parole

during Supermax confinement. In this case, plaintiff alleges in conclusory fashion that he was

denied the privileges accorded to those in general population. Such pleading is insufficient to

state a viable claim: he must describe the particular privileges available to others but denied to

him. Jackson v. Carey, 353 F.3d 750, 755-56 (9th Cir. 2003).

Plaintiff fares slightly better when describes his inability to undertake those

activities important to parole consideration. Nevertheless, he does not link this deprivation with

a specific denial of parole. If his failure to participate in these activities was only one factor in

the denial of parole, he may not be entitled to proceed under the Civil Rights Act. Compare

Zimmerman v. Tribble, 226 F.3d 568, 571-72 (7th Cir. 2000) (transfer to prison without

programs does not state a claim, even when participation in programs allowed inmate to earn

good time credits, because successful completion of programs not inevitable) with Reed v.

McKune, 298 F.3d 946, 954 (10th Cir. 2002) (allegation that inmate was denied parole solely

because of failure to participate in programs stated a claim). Plaintiff will be given an

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 Hewitt was receded from on grounds other than relied on here, in Sandin.

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opportunity to amend this portion of his complaint, if he is able to do so while complying fully

with Federal Rule of Civil Procedure 11. 

Plaintiff next alleges that he was denied due process when the rehearing on his

rules violation was not held within the time limits established by the California Administrative

Code. Sec. Am. Compl. ¶¶ 18-20. Whatever the limits established by state regulation, however,

the requirement of due process in the administrative segregation context is only that hearings be

held within a reasonable time. Hewitt v. Helms, 459 U.S. 460, 476 n.8 (1983).1 Plaintiff has

alleged no facts to show the delay was unreasonable. He will be given an opportunity to amend

his complaint, if he is able. 

Finally, plaintiff alleges that defendant Bunnell had the opportunity to prevent the

riot that occurred on April 8, 2002, which led ultimately to the injuries plaintiff sustained during

the disturbance. Sec. Am. Compl. ¶ 21. This allegation states a claim under the Civil Rights

Act, and may be included in a further amended complaint. 

If plaintiff chooses to amend the complaint, he is reminded that he must

demonstrate how the conditions complained of have resulted in a deprivation of plaintiff's

constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the complaint

must allege in specific terms how each named defendant is involved. There can be no liability

under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant's

actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto,

633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 

Furthermore, vague and conclusory allegations of official participation in civil rights violations

are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

In addition, plaintiff is informed that the court cannot refer to a prior pleading in

order to make plaintiff's amended complaint complete. Local Rule 15-220 requires that an

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amended complaint be complete in itself without reference to any prior pleading. This is

because, as a general rule, an amended complaint supersedes the original complaint. See Loux v.

Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original

pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an 

original complaint, each claim and the involvement of each defendant must be sufficiently

alleged. 

In accordance with the above, IT IS HEREBY ORDERED that:

1. Plaintiff's complaint is dismissed. 

2. Plaintiff is granted thirty days from the date of service of this order to file an

amended complaint that complies with the requirements of the Civil Rights Act, the Federal

Rules of Civil Procedure, and the Local Rules of Practice; the amended complaint must bear the

docket number assigned this case and must be labeled “Third Amended Complaint”; plaintiff

must file an original and two copies of the amended complaint; failure to file an amended

complaint in accordance with this order will result in a recommendation that this action be

dismissed.

3. In the alternative, plaintiff may notify the court within thirty days of the date of

this order that he wishes to proceed against defendant Bunnell only and declines to file a third

amended complaint. 

4. The Clerk of the Court is directed to send plaintiff a form for a civil rights

action by a prisoner. 

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5. Plaintiff’s December 27, 2005 request for the appointment of counsel is

denied.

DATED: May 22, 2006.

______________________________________

UNITED STATES MAGISTRATE JUDGE

2

lope0822.14ac

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