Kevin Fernandez v. Bert Jackson , 667 F. App'x 954 ( 2016 )

FILED
NOT FOR PUBLICATION AUG 04 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEVIN LYNN FERNANDEZ, No. 14-15804
Plaintiff - Appellant, D.C. No. 3:13-cv-00670-RCJ-
WGC
v.
BERT JACKSON; et al., MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Submitted July 26, 2016**
Before: SCHROEDER, CANBY, and CALLAHAN, Circuit Judges.
Kevin Lynn Fernandez, a Nevada state prisoner, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging federal
and state law claims. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo. Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (dismissal under
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
28 U.S.C. § 1915A); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)
(order) (dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii)). We affirm in part, reverse
in part, vacate in part, and remand.
The district court properly dismissed Fernandez’s retaliation claim against
all defendants, except Jackson and Marikami, because Fernandez failed to allege
facts sufficient to show that defendants other than Jackson and Marikami labeled
him as mentally ill because of any protected conduct. See Rhodes v. Robinson, 408
F.3d 559, 567-68 (9th Cir. 2005) (setting forth elements of a retaliation claim in the
prison context). However, because Fernandez was not given an opportunity to
amend this claim, Fernandez should be granted leave to amend to cure any
deficiencies. See Weilburg, 488 F.3d at 1205 (“Dismissal of a pro se complaint
without leave to amend is proper only if it is absolutely clear that the deficiencies
of the complaint could not be cured by amendment.” (citation and internal
quotation marks omitted)); Chappel v. Lab. Corp. of Am., 232 F.3d 719, 725 (9th
Cir. 2000) (standard of review).
Fernandez alleged that defendants Jackson and Marikami changed
Fernandez’s mental health records because he filed a grievance against them.
Thus, we conclude that the district court erred in dismissing Fernandez’s retaliation
claim against Jackson and Marikami because Fernandez alleged facts sufficient to
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show that these defendants labeled him as mentally ill because he engaged in
protected conduct. See Rhodes, 408 F.3d at 567-68.
The district court properly dismissed Fernandez’s due process claim to the
extent that it was premised on his purported right to be eligible for parole because
Nevada law does not create a liberty interest in parole. See Moor v. Palmer, 603
F.3d 658, 661 (9th Cir. 2010) (“Nevada’s statutory parole scheme . . . expressly
disclaims any intent to create a liberty interest.”); Neal v. Shimoda, 131 F.3d 818,
827 (9th Cir. 1997) (“The requirements of procedural due process apply only to the
deprivation of interests encompassed by the Fourteenth Amendment’s protection of
liberty and property.” (citation and quotation marks omitted)). The district court
did not abuse its discretion in dismissing this claim without leave to amend
because the deficiencies cannot be cured by amendment. See Weilburg, 488 F.3d
at 1205.
However, the district court overlooked Fernandez’s allegations that he was
subjected to mental health treatment against his will, was placed in a mental health
unit, and had a right “not to be labe[l]ed as a high risk sex offender.” See
Washington v. Harper, 494 U.S. 210, 221-22 (1990) (a prisoner possesses a
“liberty interest in avoiding the unwanted administration of antipsychotic drugs
under the Due Process Clause”); Vitek v. Jones, 445 U.S. 480, 493 (1980) (a
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convicted felon “is entitled to the benefit of procedures appropriate in the
circumstances before he is found to have a mental disease and transferred to a
mental hospital”); see also Neal, 131 F.3d at 828-30 (applying Vitek in context of
sex offender label). Accordingly, we vacate the judgment as to this due process
claim so that the district court may consider this claim in the first instance.
The district court dismissed Fernandez’s state law claims on the ground that
violations of state law do not give rise to a claim for relief under § 1983. However,
Fernandez expressly brought these claims under the district court’s supplemental
jurisdiction. See 28 U.S.C. § 1367. On remand, the district court should exercise
its discretion as to whether it will review Fernandez’s state law claims under its
supplemental jurisdiction.
Because the district court denied Fernandez’s motion to proceed in forma
pauperis after concluding that Fernandez’s complaint failed to state any claims, we
reverse the denial of leave to proceed in forma pauperis for the district court to
reconsider in light of our conclusion that the complaint states claims for relief. See
O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990) (standard of review).
AFFIRMED in part, REVERSED in part, VACATED in part, and
REMANDED.
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