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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

HULEN T. HARRELL,

Plaintiff, No. CIV S-04-1968 RRB DAD P

vs.

P.D. PALMER, et al.,

Defendants. ORDER

 /

Plaintiff, a state prisoner proceeding pro se, has filed a complaint seeking relief

under 42 U.S.C. § 1983, together with a request for leave to proceed in forma pauperis pursuant

to 28 U.S.C. § 1915. This proceeding was referred to the undersigned magistrate judge in

accordance with Local Rule 72-302 and 28 U.S.C. § 636(b)(1).

Plaintiff’s application to proceed in forma pauperis makes the showing required

by 28 U.S.C. § 1915(a). Plaintiff’s request for leave to proceed in forma pauperis will therefore

be granted.

Plaintiff is required to pay the statutory filing fee of $150.00 for this action. See

28 U.S.C. §§ 1914(a) (prior to amendments effective in 2005) and 1915(b)(1). An initial partial

filing fee of $4.80 will be assessed by this order. See 28 U.S.C. § 1915(b)(1). By separate order,

the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff’s

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trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for

monthly payments of twenty percent of the preceding month’s income credited to his prison trust

account. These payments will be forwarded by the appropriate agency to the Clerk of the Court

each time the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. See

28 U.S.C. § 1915(b)(2).

The court is required to screen complaints brought by prisoners seeking relief

against a governmental entity or an officer or employee of a governmental entity. See 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,” fail to state a claim upon which relief may be

granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

§ 1915A(b)(1) and (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 be dismissed for failure to state a claim

upon which relief may be granted only 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); 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 accepts as true the

allegations of the complaint. See Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740

(1976). The court also construes the pleading in the light most favorable to the plaintiff and

resolves all doubts in the plaintiff’s favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

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The Civil Rights Act under which this action was filed provides as follows:

Every person who, under color of [state law] . . . subjects, or causes

to be subjected, any citizen of the United States . . . to the

deprivation of any rights, privileges, or immunities secured by the

Constitution . . . shall be liable to the party injured in an action at

law, suit in equity, or other proper proceeding for redress. 

42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the

actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

(1976).

“A person ‘subjects’ another to the deprivation of a constitutional right, within the

meaning of § 1983, if he does an affirmative act, participates in another’s affirmative acts or

omits to perform an act which he is legally required to do that causes the deprivation of which

complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Supervisory

personnel are generally not liable under § 1983 for the actions of their employees under a theory

of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the

causal link between him and the claimed constitutional violation must be specifically alleged. 

See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441

(9th Cir. 1978). Vague and conclusory allegations concerning the involvement of official

personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d

266, 268 (9th Cir. 1982).

In the present case, plaintiff has sued ten named prison officials and one mail

room sergeant identified as John Doe. The majority of the defendants are employed at Folsom

State Prison, although at least one defendant is employed at California State Prison-Solano. 

Plaintiff’s claims arise from a housing reassignment at Folsom in 2004, which was followed

several months later by a transfer from Folsom to CSP-Solano. Also at issue are several appeals

filed by plaintiff concerning these events. Although plaintiff claims the effect of the

reassignment was racially discriminatory against him, the facts alleged by plaintiff reflect that the

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discriminatory effect was the result of a mistake made by defendant Palmer. Plaintiff alleges due

process violations with regard to a classification hearing, but the alleged violations arose from

state law rules rather than federal due process requirements. Plaintiff alleges that one defendant

shouted at him and showed him verbal disrespect and hostility. Plaintiff complains that after he

arrived at CSP-Solano he was not housed properly during the first two weeks, causing him to

suffer stress and sleep deprivation. Plaintiff also complains of the way his appeals were

processed. By way of relief, plaintiff seeks an order requiring the CDC to reinstate an inmate

appeal that plaintiff withdrew when one of the defendants implied that plaintiff would be

reassigned back to his original unit at Folsom if the appeal were withdrawn.

An inmate does not have a constitutional right to be housed at a particular

institution or to be transferred, or not transferred, from one facility to another. Olim v.

Wakinekona, 461 U.S. 238, 244-48 (1983); Meachum v. Fano, 427 U.S. 215, 224-25 (1976);

Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991) (per curiam). Nor does an inmate have a

right to a particular classification. Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976); Hernandez v.

Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987). Thus, alleged deprivations of rights caused by

prison officials’ housing and classification decisions do not give rise to a federal constitutional

claim encompassed by the protection of liberty and property guaranteed by the Fifth and

Fourteenth Amendments. See Board of Regents v. Roth, 408 U.S. 564, 569 (1972). 

Under certain circumstances, state statutes and regulations may give rise to a

liberty interest protected by the Fifth and Fourteenth Amendments. However, such protection

may be accorded only where the liberty interest concerns freedom from a restraint that “imposes

atypical and significant hardship on the inmate in relation to the ordinary incidents of prison

life.” Sandin v. Conner, 515 U.S. 472, 483 (1995). When state regulations create a protected

liberty interest, inmates have no federal constitutional right to the particular procedures

established by state law. See Toussaint v. McCarthy, 801 F.2d 1080, 1096-97 (9th Cir. 1986).

/////

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The Eighth Amendment imposes on prison officials a duty to provide humane

conditions of confinement. Wilson v. Seiter, 501 U.S. 294, 303 (1991); Hudson v. Palmer, 468

U.S. 517, 526-27 (1984). While the “unnecessary and wanton infliction of pain” constitutes

cruel and unusual punishment, “[i]t is obduracy and wantonness, not inadvertence or error in

good faith,” that characterize the forbidden conduct. Whitley v. Albers, 475 U.S. 312, 319

(1986). To state an Eighth Amendment violation, the plaintiff must allege facts showing that

objectively he suffered a sufficiently serious deprivation at the hands of a defendant and that

subjectively the defendant had a culpable state of mind in causing the deprivation to occur. 

Wilson, 501 U.S. at 298-99. Mere verbal abuse and disrespect do not violate the Eighth

Amendment proscription against cruel and unusual punishment. Gaut v. Sunn, 810 F.2d 923,

925 (9th Cir. 1987); Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987).

The facts alleged by the plaintiff in this case do not demonstrate that any

defendant violated his rights to due process or equal protection or that any defendant subjected

plaintiff to a sufficiently serious deprivation of the right to humane conditions of confinement. 

After careful consideration of plaintiff’s complaint, the court finds that plaintiff has failed to state

any federal claim upon which relief can be granted. Plaintiff’s complaint must therefore be

dismissed. The court will, however, grant leave to file an amended complaint.

In his amended complaint, plaintiff must demonstrate how the acts complained of

resulted in a deprivation of one or more of plaintiff’s federal constitutional rights. See Ellis v.

Cassidy, 625 F.2d 227 (9th Cir. 1980). The amended complaint must allege in specific terms

how each named defendant was involved with the deprivation of such rights. There can be no

liability under 42 U.S.C. § 1983 unless there is some affirmative link between a defendant’s

actions and the claimed deprivation. May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980);

Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

Plaintiff is informed that the court will not refer to his prior pleading in order to

make the amended complaint complete. Local Rule 15-220 requires that every amended

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complaint be complete in itself without reference to prior pleadings. The amended complaint

will supersede the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). 

Therefore, in an amended complaint, as if it were the original complaint filed in this case, 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 September 22, 2004 application to proceed in forma pauperis is

granted.

2. Plaintiff is obligated to pay the statutory filing fee of $150.00 for this action. 

Plaintiff is assessed an initial partial filing fee of $4.80. All fees shall be collected and paid in

accordance with this court’s order to the Director of the California Department of Corrections

filed concurrently herewith.

3. Plaintiff’s complaint is dismissed with leave to amend.

4. Plaintiff is granted thirty days from the date 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; plaintiff’s amended complaint must bear the case

number assigned to this case and must be labeled “Amended Complaint”; failure to file an

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

be dismissed without prejudice.

DATED: December 19, 2005.

DAD:13

harr1968.14

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