WILLIAM G. COBB, Magistrate Judge.
Before the court is Plaintiff's First Amended Complaint. (ECF No. 15.)
Plaintiff filed his application to proceed in forma pauperis (IFP) and original complaint on October 21, 2016. (ECF Nos. 1, 1-1.) The court screened the complaint and issued an order on September 18, 2017, and: dismissed Count I, which alleged a due process violation related to a disciplinary hearing, with leave to amend; dismissed Count II with prejudice, which alleged a due process claim for mischaracterization of his appeal and for an alleged failure to investigate his appeal; and, allowed Count III to proceed against defendant Belanger, based on allegations that he did not receive the requisite notice and hearings in connection with the time spent in administrative segregation. (ECF No. 3.)
On December 18, 2017, Plaintiff filed a document asking that his action proceed against defendant Belanger as he had not filed an amended complaint. (ECF No. 6.) On December 21, 2017, the court issued an order stating that the action would proceed against defendant Belanger only on Count III. (ECF No. 7.) In addition, the case was stayed and the case was referred to the court's Inmate Early Mediation Program. (Id.) The mediation took place on April 10, `, but was unsuccessful. (ECF No. 11.) Plaintiff's IFP application was granted, and the Attorney General's Office accepted service on behalf of Belanger on May 7, 2018. (ECF Nos. 13, 14.) Belanger had sixty days from the date of the order directing service (filed April 16, `) to file and serve an answer or other response. (ECF No. 13 at 3.)
On June 14, 2018, Plaintiff filed a first amended complaint. (ECF No. 15.)
The very next day, defendant Belanger filed a motion for summary judgment. (ECF Nos. 16, 16-1 to 16-6.)
A party may amend its pleading once as a matter of course within:
Fed. R. Civ. P. 15(a)(1)(A)-(B).
Here, service was accepted on behalf of Belanger on May 7, `. The amended complaint was filed more than twenty-days after service was accepted. Therefore, amendment as a matter of course was not proper under Rule 15(a)(1)(A). In addition, to the extent Belanger's motion for summary judgment could be construed as a responsive pleading, the amended complaint was filed before the filing of the motion for summary judgment and not after. As such, amendment as a matter of course was not proper under Rule 15(a)(1)(B).
Therefore, Plaintiff was required to obtain Belanger's consent or the court's leave to file an amended complaint under Rule 15(a)(2). There is no indication that Belanger gave consent to the filing of the amended complaint; therefore, Plaintiff was required to file a motion for leave to amend, which did not occur.
As a result, the first amended complaint (ECF No. 15), filed on June 14, `, will be stricken; however, Plaintiff will be given thirty days to file a motion for leave to amend and proposed amended complaint. Under Local Rule 15-1 the proposed amended complaint must be attached to the motion seeking leave of court to file the pleading. LR 15-1(a). The proposed amended complaint must be complete in and of itself without reference to the superseded pleading and must include copies of all exhibits referred to in the proposed amended pleading. If no motion is filed within the thirty-day timeframe, the complaint will proceed only as to Count III against Belanger, as set forth in the original screening order.
The court notes that the first amended complaint that is being stricken as improvidently filed (ECF No. 15), names defendant Belanger in the caption but contains no factual allegations against Belanger in the body of the complaint such that if that amended pleading had been filed and screened, the court would not have allowed any claim to proceed against Belanger. Any proposed amended complaint must name each defendant in the caption, and contain factual allegations connecting that defendant to the alleged constitutional violation in the body of the complaint.
The court undertook a preliminary review of the remaining allegations in first amended complaint that is being stricken and points out some deficiencies that may be taken into account if Plaintiff chooses to file a motion for leave to amend and proposed amended complaint. Plaintiff still disputes his disciplinary conviction, claiming that Officer Martin's version of events that give rise to his disciplinary conviction—that Martin observed Plaintiff engaging in a sexual encounter with his cellmate—was false; that a hearing officer did not consider Plaintiff's version of events; and that superiors Sandie and Foster should have corrected this wrong.
As was stated in the original screening order, "[t]he requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board." Superintendent Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455 (1985). "Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board." Id. at 455-56. (citations omitted) (emphasis added). In Hill, the Supreme Court found that the evidence met the "some evidence" standard, noting that the disciplinary panel had received testimony from a prison guard and copies of a written report. Id. "The Federal Constitution does not require evidence that logically precludes any conclusion but the one reached by the disciplinary board. Instead, due process in this context requires only that there be some evidence to support the findings made in the disciplinary hearing." Hill, 472 U.S. at 457. The court is "not to make its own assessment of the credibility of witnesses or reweigh the evidence." Cato v. Rushen, 824 F.2d 703,705 (9th Cir. 1987) (citing Hill, 472 U.S. at 455).
In addition, courts have held that prisoners do not have a constitutionally protected guaranteed immunity from being falsely or wrongly accused of conduct which may result in the deprivation of a protected liberty interest, provided the due process requirements of Wolff are observed. See Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989); Freeman v. Rideout, 808 F.2d 949, 951-52 (2d. Cir. 1986), cert. denied, 485 U.S. 982 (1988) (allegation that false evidence was planted by a prison guard does not state a constitutional claim where procedural process protections are provided); see also York v. Hernandez, 2011 WL2650243, at * n. 3 (N.D. Cal. 2011) (where plaintiff alleged violation of due process rights by filing false charges against him, court stated, "without more, a prisoner has no constitutionally guaranteed immunity from being falsely or wrongly accused of conduct which may result in the deprivation of a protected liberty interest."); Tafilele v. Harrington, 2011 WL2462750, at *7 (E.D. Cal. 2011); but see Hines v. Gomez, 108 F.3d 265 (9th Cir. 1997) (prisoner can allege the false report or conviction was retaliatory (in retaliation for exercising constitutional rights), which Plaintiff has not done here). Rather, the Fourteenth Amendment provides that a prisoner has a right not to be deprived of a protected liberty interest without due process of law. Sprouse, 870 F.2d at 452. Thus, as long as a prisoner receives proper procedural due process, a claim based on the falsity of disciplinary charges, standing alone, does not state a constitutional claim. Id.; see also Freeman, 808 F.2d at 951; Hanrahan v. Lane, 747 F.2d 1137, 1140-41 (7th Cir. 1984).
In sum, Plaintiff's allegations in the first amended complaint being stricken would not have given rise to a viable claim under section 1983. Again, this should be taken into account should Plaintiff choose to pursue a motion for leave to amend and proposed amended complaint.
Finally, absent a motion requesting an extension of time, Plaintiff is still required to timely file a response to Belanger's pending motion for summary judgment, which is currently due July 6, 2018.
(1) The First Amended Complaint (ECF No. 15) is hereby
(2) Plaintiff has
(3) If Plaintiff chooses to file an amended complaint, the amended complaint supersedes the original complaint and, thus, the amended complaint must be complete in and of itself. Plaintiff's amended complaint must contain all claims, defendants, and factual allegations Plaintiff wishes to pursue in this lawsuit, and must contain factual allegations connecting each named defendant to the alleged constitutional violation. Moreover, Plaintiff must file the amended complaint on the court's approved prisoner civil rights form and it must be entitled "First Amended Complaint."
(4) The Clerk shall send Plaintiff the approved form for filing a section 1983 complaint, instructions for the same, and a copy of the original complaint (ECF No. 1-1).
(5) If an amended complaint is filed, the court will screen the amended complaint in a separate screening order, which may take several months.
(6) Absent a motion requesting an extension of time, Plaintiff is still required to timely file a response to Belanger's pending motion for summary judgment.
You must
Do
To initiate a § 1983 civil rights action, you must submit: (1) a completed complaint form
If you have the money to pay the full $400 filing fee, please send a check or money order made payable to "CLERK, U.S. DISTRICT COURT" with your complaint.
If you are unable to pay the entire filing fee at the time you submit your complaint, please complete an inmate's application to proceed in forma pauperis. You may request the packet titled "Information for Filing an Application to Proceed In Forma Pauperis by an Inmate under 28 U.S.C. § 1915."
In civil actions filed by pro se (self-represented) inmates, the action must be filed in the unofficial division of the court in which the inmate is incarcerated when the complaint is submitted for filing. See Local Rules of Practice for the United States District Court for the District of Nevada ("LR") IA 1-6, 1-8. The Clerk of the Court maintains offices in Las Vegas and Reno at the following addresses:
If you are incarcerated at a facility that uses electronic filing, please continue to use electronic filing.
If you need to change any information in the initial complaint, you must file an amended complaint. The amended complaint must be written on the court-approved civil rights form. The amended complaint must be complete in itself and may not incorporate by reference any part of your prior complaint. Any allegations or defendants not included in the amended complaint are considered abandoned. Please refer to LR 15-1 and Fed. R. Civ. P. 15 for how and when a party may move the court to file an amended complaint.
