Ingram v. Key

1 EASTERUN. SD.I SDTIRSITCRTI COTF CWOAUSRHTI NGTON 2 Oct 17, 2019 3 SEAN F. MCAVOY, CLERK [4] 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON [8] ROBERT SCOTT INGRAM, 9 2:19-cv-00124-SAB Plaintiff, [10] v. ORDER DISMISSING FIRST [11] AMENDED COMPLAINT [12] JAMES KEYES, [13] Defendant. [15] 16 Before the Court is Plaintiff’s First Amended Complaint. ECF No. 15. 17 Plaintiff, a pro se prisoner at the Washington State Penitentiary in Walla Walla, 18 Washington, was previously ordered to amend or voluntarily dismiss his 19 Complaint. ECF No. 13. 20 Generally, an amended complaint supersedes the original complaint and 21 renders it without legal effect. Lacey v. Maricopa County, 693 F.3d 896, 927 (9th 22 Cir. 2012). Therefore, “[a]ll causes of action alleged in an original complaint 23 which are not alleged in an amended complaint are waived.” King v. Atiyeh, 814 24 F.2d 565, 567 (9th Cir. 1987) (citing London v. Coopers & Lybrand, 644 F.2d 811 , 25 814 (9th Cir. 1981)), overruled in part by Lacey, 693 F.3d at 928 (any claims 26 voluntarily dismissed are considered to be waived if not repled). 27 Furthermore, Defendants not named in an amended complaint are no longer 1 1992). Consequently, Defendant James Key has been terminated and James Keyes 2 added. 3 FIRST AMENDED COMPLAINT 4 Plaintiff asserts a due process claim based on his termination from a prison 5 job in May 2017 and from Correctional Industries in January 2019, due to 6 disciplinary infractions. The Constitution guarantees due process when a person is 7 to be deprived of life, liberty, or property. See Toussaint v. McCarthy, 801 F.3d 8 1080, 1089 (9th Cir. 1986), overruled on other grounds, Sandin v Conner, 515 9 U.S. 472 (1995). The fact that Plaintiff received a custody demotion and was 10 ineligible to earn ten days of earned time credits did not deprive him of life or 11 property. Therefore, there must be a constitutionally protected liberty interest to 12 maintain a due process claim. 13 Generally, a liberty interest protected by due process may arise under the 14 United States Constitution or state law. See Sandin, 515 U.S. at 483-84. State law 15 may create a liberty interest if it imposes an “atypical and significant hardship on [16] the inmate in relation to the ordinary incidents of prison life.” Id. at 484. State law [17] also may create a liberty interest if the action inevitably will affect the length of the [18] prisoner's confinement. Id. at 487. [19] There is no federal constitutional liberty or property interest in prison [20] employment. See Bauman v. Arizona Dep't of Corrections, 754 F.2d 841, 846 (9th [21] Cir.1985). Furthermore, a custody demotion does not implicate a liberty interest [22] arising under the Constitution because prisoners are not entitled to any particular [23] degree of liberty. See Meachum v. Fano, 427 U.S. 215, 225 (1976). The Due [24] Process Clause does not protect every change in the conditions of confinement that [25] has a substantial adverse impact on the prisoner. Id. at 224 . Plaintiff alleges no [26] facts demonstrating that his custody demotion imposed an atypical and significant [27] hardship in relation to the ordinary incidents of prison life. See Sandin, 515 U.S. at 1 Plaintiff's inability to earn the maximum amount of earned time credits also 2 does not implicate a liberty interest arising under the Constitution because earned 3 time credits are not protected independently by the Constitution. See Wolff v. 4 McDonnell, 418 U.S. 539, 557 (1974). In Washington, a prisoner has no state5 created liberty interest in earned time credits that have not yet been awarded. In re 6 Galvez, 79 Wash.App. 655, 657 , 904 P.2d 790, 791 (1995), citing Wolff, 418 U.S. 7 539. Therefore, Plaintiff’s complaint regarding the alleged “loss” of ten days 8 earned time that he was not eligible to earn fails to state a due process claim. 9 Plaintiff’s contention that, because he was terminated from Correctional 10 Industries in January 2019, he will not have the assistance of an employment 11 specialist to find a job in the community is insufficient to invoke procedural due 12 process protections under Sandin. Id., 515 U.S. at 487. His due process claim 13 regarding eleven days in administrative segregation must also fail. See May v. 14 Baldwin, 109 F.3d 557, 565 (9th Cir. 1997) (“[A]dministrative segregation falls 15 within the terms of confinement ordinarily contemplated by a sentence.”). [16] Plaintiff also seems to challenge on Fourth Amendment grounds the seizure [17] of evidence in January 2019 used to impose a disciplinary sanction of ten days loss [18] of good conduct time. He wants this infraction expunged from his record. Once [19] again, an action under 42 U.S.C. § 1983 is not the appropriate vehicle to challenge [20] prison disciplinary proceedings resulting in the loss of good time credits. See Heck [21] v. Humphrey, 512 U.S. 477, 486-87 (1994); Edwards v. Balisok, 520 U.S. 641 , [22] 643-44 (1997). [23] DISMISSAL [24] The Court had cautioned Plaintiff that if he chose to amend his complaint [25] and the Court found that the amended complaint was frivolous, malicious, or failed [26] to state a claim upon which relief may be granted, the amended complaint would [27] be dismissed pursuant to 28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2). Having 1 Plaintiff, the Court finds that he has failed to state a claim against Defendant Keyes 2 upon which relief may be granted. 3 Accordingly, IT IS ORDERED the First Amended Complaint, ECF No. 15, 4 is DISMISSED in part with prejudice for failure to state a claim upon which 5 relief may be granted. 28 U.S.C. §§ 1915 (e)(2) and 1915A(b)(1), but without 6 prejudice to Plaintiff challenging the good conduct time sanction in an appropriate 7 state or federal habeas proceeding. IT IS FURTHER OREDERED that all 8 pending motions and requests are DENIED AS MOOT. 9 Under Washington v. L.A. Cty. Sheriff's Dep't, 833 F.3d 1048 (9th Cir. 10 2016), this dismissal will NOT count as a “strike” pursuant to 28 U.S.C. § 1915 (g). 11 The Court certifies that any appeal of this dismissal would not be taken in good 12 faith. 13 IT IS SO ORDERED. The Clerk of Court is directed to enter this Order, 14 enter judgment, provide copies to Plaintiff at his last known address, and close the 15 file. [16] DATED this 17th day of October 2019.