(PC) Vandervall v. Feltner et al, No. 2:2009cv01576 - Document 22 (E.D. Cal. 2010)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 7/17/10 ORDERING that Clerk of the Court is directed to randomly assign a United States District Judge to this action; RECOMMENDING that 13 MOTION to DISMISS plainti ffs complaint as barred by the favorable termination rule be denied; Defendants motion to dismiss plaintiffs Fourteenth Amendment Due Process Clause claims against defendants Feltner, Machado, Lackner and Martel be granted; Defendants motion to dismi ss plaintiffs First Amendment retaliation claims against defendants Lackner and Martel be granted; and Defendants motion to dismiss plaintiffs First Amendment retaliation claims against defendants Feltner and Machado on the grounds of qualified immunity be denied. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 21 days.(Dillon, M)
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(PC) Vandervall v. Feltner et al Doc. 22 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 KARL VANDERVALL, 11 12 13 Plaintiff, No. CIV S-09-1576 DAD P vs. J. FELTNER, et al., 14 ORDER AND Defendants. 15 FINDINGS AND RECOMMENDATIONS / 16 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil 17 rights action pursuant to 42 U.S.C. § 1983. In his complaint, plaintiff alleges that defendants 18 violated his rights under the First Amendment and the Due Process Clause of the Fourteenth 19 Amendment. 20 On December 18, 2009, defendants moved to dismiss plaintiff’s complaint on the 21 grounds that: (1) plaintiff’s claims are barred by the favorable termination rule announced in 22 Heck v. Humphrey, 512 U.S. 477 (1994); (2) plaintiff failed to state a cognizable claim under the 23 Due Process Clause; (3) defendant Martel’s and Lackner’s actions furthered a legitimate 24 penological purpose; and (4) all defendants are entitled to qualified immunity. Plaintiff has filed 25 an opposition to the motion, and defendants have filed a reply. In addition, pursuant to court 26 order, defendants have filed a supplemental brief addressing issues raised by their argument 1 Dockets.Justia.com 1 seeking dismissal pursuant to Heck in light of plaintiff’s sentence. For the reasons set forth 2 below, the court recommends that defendants’ motion to dismiss be granted in part and denied in 3 part. 4 BACKGROUND 5 Plaintiff is proceeding on his original complaint against defendants Feltner, 6 Machado, Martel, and Lackner. In his complaint, plaintiff alleges as follows. On March 28, 7 2008, plaintiff was given a job assignment as an Enhanced Outpatient Program (EOP) aide and 8 mentor.1 Shortly thereafter, plaintiff noticed that two co-workers were subjecting EOP inmates 9 to physical, emotional, and financial abuse. He brought this to the attention of defendant Feltner, 10 who dismissed plaintiff’s concerns and told him to “mind [his] own business.” Moreover, 11 defendant Feltner indicated that one of the co-workers in question was his “inside man” who was 12 given extra leeway. (Compl. at 3-4.) 13 Having little success with other correctional staff in halting the abuse of EOP 14 inmates, plaintiff sought the help of Recreation Therapist Dru Scott. Ms. Scott confirmed that 15 she had heard similar reports of abuse from other inmates and that she would take some form of 16 action. In late September or early October 2008, Ms. Scott issued an internal memo stating that 17 she was disturbed by EOP’s unhealthy environment and that remedial action should be taken. 18 Ms. Scott’s memo was addressed to EOP staff members and administrators, including defendants 19 Feltner and Machado. (Compl. at 5, Ex. C.) 20 Defendant Feltner responded harshly to Ms. Scott’s memo, convening a meeting 21 where he threatened to fire all EOP aides and mentors if there was another “leak” about inmate 22 abuse. Defendant Feltner also called plaintiff into his office and alleged that plaintiff was the 23 main suspect behind the memo’s complaints. Thereafter, plaintiff experienced late releases from 24 his cell, repeated cell and body searches and verbal abuse from other correctional staff members. 25 1 26 The EOP program provides additional assistance to mentally ill prisoners who are in the custody of the California Department of Corrections and Rehabilitation (CDCR). (Compl. at 3.) 2 1 (Compl. at 5-6.) 2 Fearing for his safety, plaintiff resigned from his position as an EOP aide and 3 mentor on October 23, 2008. The following day, plaintiff filed a CDC-602 grievance form in 4 which he reiterated his complaints regarding EOP inmate abuse and indicated his intent to bring 5 the matter before J. Michael Keating.2 Plaintiff also mailed a letter detailing the inmate abuse to 6 attorneys at the Prison Law Office in San Quentin, California. (Compl. at 6-7; Ex. D1.) 7 On November 9, 2008, defendant Feltner escorted plaintiff to the Program Office 8 to be questioned. Two documents, both authored by defendant Feltner, claimed that plaintiff had 9 been “pressuring lower functioning inmates to make false allegations on other inmates and staff 10 members.” After approximately forty-five minutes of questioning, plaintiff was handed a copy of 11 the lock-up order and was placed in administrative segregation. (Compl. at 7-8.) 12 The following day, defendant Machado held plaintiff’s 114-D hearing to decide 13 whether plaintiff would be retained in administrative segregation. Defendant Machado did not 14 allow plaintiff to present any witnesses and stated, “Maybe if you hadn’t written that [CDC-602] 15 and contacted the judge about the EOP program, you wouldn’t be here.” Ultimately, defendant 16 Machado ruled that plaintiff should be retained in administrative segregation. (Compl. at 7-9.) 17 On November 13, 2008, plaintiff appeared before the Institutional Classification 18 board (ICC), which included defendants Lackner and Martel. During his ICC hearing, plaintiff 19 was again denied an investigative employee, the presence of witnesses, and the opportunity to 20 present evidence. The ICC concluded that plaintiff should be retained in administrative 21 segregation until a full investigation into the disciplinary charges could be completed. (Compl. 22 at 9, Ex. H.) 23 ///// 24 2 25 26 Mr. Keating serves as the special master in Coleman v. Schwarzenegger, No. CIV S-900520 LKK JFM P, 2009 WL 2430820 (E.D. Cal. Aug. 4, 2009) (ordering California to reduce its prison population because inmates were not receiving constitutionally sufficient levels of medical and mental health care). 3 1 On November 19, 2008, plaintiff filed another CDC-602 grievance, alleging that 2 defendant Feltner and other prison officials were retaliating against him for exercising his First 3 Amendment rights. (Compl. at 9, Ex. I.) 4 On November 24, 2008, plaintiff was released from administrative segregation. 5 However on December 14, 2008, plaintiff was returned to administrative segregation on another 6 charge of pressuring fellow inmates. Although this charge was quickly dismissed, plaintiff was 7 found guilty of the original charges brought against him on November 9, 2008. Consequently, 8 prison officials recommended that plaintiff be transferred to another institution. (Compl. at 10- 9 11.) 10 On December 27, 2008, plaintiff wrote a letter to defendant Martel reiterating his 11 innocence and requesting that he not to be transferred. On January 8, 2009, defendant Lackner 12 wrote in response indicating that “further review into the reasons for your Ad-Seg placement is 13 warranted . . . [and] you will be scheduled for ICC in the near future to determine your housing 14 and placement.” However, such a hearing was never held, and on February 26, 2009, plaintiff 15 was transferred to Pleasant Valley State Prison. (Compl. at 11; Ex. L.) 16 Based upon these allegations, plaintiff claims that defendant Feltner violated his 17 rights under the First Amendment and Due Process Clause of the Fourteenth Amendment by 18 falsifying disciplinary charges against him and placing him in administrative segregation for the 19 purpose of retaliating against plaintiff for filing grievances. Plaintiff also claims that defendants 20 Machado, Lackner, and Martel similarly violated his First Amendment and due process rights by 21 furthering defendant Feltner’s retaliatory actions. In terms of relief, plaintiff seeks an injunction, 22 declaratory relief and monetary damages. (Compl. at 12-14.) 23 24 25 26 DEFENDANTS’ MOTION TO DISMISS I. Defendants’ Motion In moving to dismiss, defense counsel argues that plaintiff’s due process and retaliation claims against defendants Feltner, Machado, Lackner, and Martel are barred by the 4 1 favorable termination rule. Counsel asserts that the underlying basis for plaintiff’s claims is the 2 allegation that defendants falsified information in the rules violation report. Counsel argues that 3 plaintiff’s success on his claims would therefore imply the invalidity of the rules violation 4 conviction, pursuant to which plaintiff was assessed a sixty-day loss of behavioral credits. 5 According to defense counsel, plaintiff must first successfully challenge his disciplinary 6 conviction by way of a habeas corpus petition and not in a § 1983 civil rights action. (Def.’s 7 Mot. to Dismiss at 4, 8-9.) 8 Defense counsel also contends that plaintiff fails to state a cognizable due process 9 claim against defendants Feltner, Machado, Martel and Lackner. In this regard, counsel argues 10 that placement in administrative segregation does not, in of itself, implicate a protected liberty 11 interest and that plaintiff has not alleged facts demonstrating that his confinement constituted an 12 atypical and significant hardship. Counsel argues further that even if plaintiff has a protected 13 liberty interest, he has received all the process that he was due. Specifically, counsel emphasizes 14 that plaintiff was informed in writing of the reasons for his confinement in administrative 15 segregation and was given opportunities to present his views to a hearing committee. (Def.’s 16 Mot. to Dismiss at 5-7.) 17 Defense counsel also asserts that defendants Martel and Lackner did not violate 18 plaintiff’s First Amendment rights because their decision to retain him in administrative 19 segregation furthered a legitimate penological purpose. Counsel argues that under California 20 prison regulations, retention of a prisoner in administrative segregation while a rules violation 21 report is pending ensures prison safety and security. Moreover, counsel argues, the decisions 22 made by defendants Martel and Lackner were justifiable, especially in light of the fact that 23 plaintiff was ultimately found guilty of the rules violation. (Def.’s Mot. to Dismiss at 9-10.) 24 Lastly, defense counsel claims that all the defendants are entitled to qualified 25 immunity because they did not violate plaintiff’s constitutional rights. (Def.’s Mot. to Dismiss at 26 10-11.) 5 1 2 II. Plaintiff’s Opposition In opposition to defendants’ motion to dismiss, plaintiff argues that his retaliation 3 and due process claims are not barred by the favorable termination rule because the disciplinary 4 sanctions at issue do not affect the overall length of his imprisonment. Specifically, plaintiff 5 explains that he is serving two consecutive life sentences: one term of 17-years-to-life for second 6 degree murder and robbery, and another term of 25-years-to-life for possession of a weapon by a 7 state prisoner. According to plaintiff, life prisoners convicted of second degree murder, such as 8 himself, are not eligible to accrue time credits. Therefore, plaintiff argues that any forfeiture of 9 credits imposed by the disputed rules violation report is immaterial in his case and should not 10 11 operate so as to bar this civil rights action. (Opp’n at 9-10.) Plaintiff also argues that he states a cognizable procedural due process claim 12 against the defendants. In plaintiff’s view, his placement in administrative segregation 13 implicates a protected liberty interest because it was imposed by prison officials relying on false 14 information. Plaintiff argues further that he was deprived of a protected liberty interest without 15 adequate procedural safeguards because under California prison regulations, prison officials are 16 required to provide him with a staff assistant, an investigative employee, and an opportunity to 17 present witnesses before placing him in administrative segregation. (Opp’n at 13-14.) 18 Moreover, plaintiff asserts for the first time that his complaint implicitly includes 19 a substantive due process claim. Specifically, plaintiff maintains that the defendants violated his 20 substantive due process rights by engaging in “criminal misconduct and then attempting to shield 21 such misconduct under the mantle of ‘penological justification.’” (Opp’n at 12-13.) 22 Plaintiff also contests defense counsel’s argument that defendants Lackner and 23 Martel did not violate his First Amendment rights to be free from retaliation because defendants’ 24 decision to retain him in administrative segregation furthered a legitimate penological purpose. 25 Specifically, plaintiff argues that once the second intimidation charge against him was dismissed, 26 he should have been released from administrative segregation. Instead, he was retained in 6 1 2 administrative segregation thereafter without any penological justification. (Opp’n at 11.) Finally, plaintiff contends that defendants are not entitled to qualified immunity. 3 Plaintiff argues that defendant Feltner violated clearly established law when he use falsified 4 disciplinary charges in retaliation against plaintiff for filing EOP-related grievances. Regarding 5 the other defendants, plaintiff argues that they too violated clearly established law because they 6 were complicit in defendant Feltner’s retaliatory scheme. (Opp’n at 14-15.) 7 III. Defendants’ Reply 8 In reply, defense counsel reiterates many of the arguments made in the pending 9 motion to dismiss. In particular, counsel restates that placement in administrative segregation 10 based upon false information does not implicate a protected liberty interest and that, even if it 11 did, plaintiff was afforded all the process he was due. 12 IV. Defendants’ Supplemental Brief 13 As noted above, on May 20, 2010, the court ordered defendants to file a 14 supplemental brief with respect to their argument that plaintiff’s claims were barred by the 15 favorable termination rule. Specifically, the court ordered defendants to explain: (1) whether 16 plaintiff is able to accrue time credits under California law; and (2) what effect any loss of time 17 credits has on the overall length of plaintiff’s sentence. On June 16, 2010, defendants filed a 18 timely supplemental brief. Therein, defense counsel concedes that although plaintiff is entitled to 19 earn time credits, any loss of credits by plaintiff has no effect on the overall length of his 20 sentence. (Supp. Br. at 2.) 21 22 23 ANALYSIS I. Legal Standards Applicable to a Motion to Dismiss Pursuant to Rule 12(b)(6) A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil 24 Procedure tests the sufficiency of the complaint. North Star Int’l v. Arizona Corp. Comm’n, 720 25 F.2d 578, 581 (9th Cir. 1983). Dismissal of the complaint, or any claim within it, “can be based 26 on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a 7 1 cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990); 2 see also Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). In order to 3 survive dismissal for failure to state a claim a complaint must contain more than “a formulaic 4 recitation of the elements of a cause of action;” it must contain factual allegations sufficient “to 5 raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 6 544, 555 (2007). 7 In determining whether a pleading states a claim, the court accepts as true all 8 material allegations in the complaint and construes those allegations, as well as the reasonable 9 inferences that can be drawn from them, in the light most favorable to the plaintiff. Hishon v. 10 King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 11 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In the context of a 12 motion to dismiss, the court also resolves doubts in the plaintiff’s favor. Jenkins v. McKeithen, 13 395 U.S. 411, 421 (1969). However, the court need not accept as true conclusory allegations, 14 unreasonable inferences, or unwarranted deductions of fact. W. Mining Council v. Watt, 643 15 F.2d 618, 624 (9th Cir. 1981). 16 In general, pro se pleadings are held to a less stringent standard than those drafted 17 by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972); Klingele v. Eikenberry, 849 F.2d 409, 18 413 (9th Cir. 1988). The court has an obligation, particularly in civil rights actions, to construe 19 such pleadings liberally. Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985). However, 20 the court’s liberal interpretation of a pro se complaint may not supply essential elements of the 21 claim that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 22 1982); see also Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992). 23 II. Discussion 24 A. The Favorable Termination Rule 25 In Heck v. Humphrey, 512 U.S. 477 (1994), the United States Supreme Court set 26 forth what has become known as the “favorable termination” rule. Under Heck, when a §1983 8 1 claim would necessarily implicate the validity of the prisoner’s conviction or sentence, “a §1983 2 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged 3 by executive order, declared invalid by a state tribunal authorized to make such determination, or 4 called into question by a federal court’s issuance of a writ of habeas corpus.” Id. at 486-87. This 5 is because suits challenging the fact or duration of a prisoner’s confinement fall within the 6 traditional scope of habeas corpus and not of a §1983 action. See Preiser v. Rodriguez, 411 U.S. 7 475, 500 (1973). 8 9 Application of the favorable termination rule “turns solely on whether a successful §1983 action would necessarily render invalid a conviction, sentence, or administrative sanction 10 that affected the length of the prisoner’s confinement.” Ramirez v. Galaza, 334 F.3d 850, 856 11 (9th Cir. 2003). See also Jenkins v. Haubert, 179 F.3d 19, 27 (2d Cir. 1999) (“[A] § 1983 suit by 12 a prisoner . . . challenging the validity of a disciplinary or administrative sanction that does not 13 affect the overall length of the prisoner’s confinement is not barred by Heck.”) In this regard, a 14 prisoner challenging a prison disciplinary sanction involving the deprivation of credits generally 15 must, under the favorable termination rule, seek relief in an action for habeas corpus because the 16 loss of time credits typically lengthens the duration of a prisoner’s confinement. See Edwards v. 17 Balisok, 520 U.S. 641, 648 (1997). 18 In this case, the court finds that plaintiff’s §1983 action is not barred by the 19 favorable termination rule. It is true that the disciplinary conviction at issue resulted in the 20 imposition of a sixty-day loss of credits upon plaintiff. If plaintiff was serving a sentence of a 21 term of specific years, such a sanction would necessarily lengthen the duration of his 22 confinement by sixty days and would required plaintiff, under the favorable termination rule, to 23 invalidate the disciplinary sanction in a habeas proceeding before bringing this §1983 action. 24 See Edwards, 520 U.S. at 648. However, plaintiff is not serving a definite term. Rather, plaintiff 25 is serving two consecutive indeterminate life sentences. The loss of credits cannot extend 26 plaintiff’s maximum term, which is already life in prison. Finally, defense counsel concedes that 9 1 any loss of credits by plaintiff has no effect on the length of his sentence. Under these 2 circumstances, defendants cannot demonstrate that plaintiff’s forfeiture of sixty days of time 3 credits will affect the length of his confinement. See Ramirez, 334 F.3d at 858.3 4 Accordingly, because defendants have failed to demonstrate how the loss of time credits 5 imposed by the disciplinary conviction at issue can have any impact on the overall length of 6 plaintiff’s confinement, defendants’ motion to dismiss plaintiff’s complaint as barred by the 7 favorable termination rule should be denied. See Ramirez, 334 F.3d at 858 (“[W]here . . . a 8 successful § 1983 action would not necessarily result in an earlier release from incarceration . . . 9 the favorable termination rule of Heck and Edwards does not apply.”); Tucker v. Monroe, No. 10 2:06-cv-58, 2007 WL 839993, at *1 (W.D. Mich. Mar. 15, 2007) (rejecting a Heck bar argument 11 where the plaintiff asserted “that he is serving a parolable life sentence for second degree murder 12 and is not eligible to earn good time or disciplinary credits”); see also Thomas v. Wong, No. C 13 09-0733 JSW (PR), 2010 WL 1233909, at *3-4 (N.D. Cal. Mar. 26, 2010) (holding that habeas 14 jurisdiction was absent because the disputed rules violation, which imposed a 30-day loss of time 15 credits, did not inevitably affect the duration of petitioner’s indeterminate sentence; dismissing 16 the habeas action without prejudice to petitioner bringing his claims in a § 1983 action). 17 ///// 18 3 19 20 21 22 23 24 25 26 Nor will the loss of credits have any impact on plaintiff’s eligibility for release on parole. Under California law, plaintiff’s earned credits may be applied to reduce his minimum eligible parole date (MEPD). See In re Dayan, 231 Cal. App.3d 184, 188 (1991); see also Cal. Code Regs., tit. 15, § 3000; Cal. Penal. Code § 190(a). However, plaintiff’s MEPD does not set an actual parole release date. Rather, the MEPD determines when plaintiff may appear before the Board of Parole Hearings (BPH) for his first parole suitability hearing. The BPH, in turn, has the exclusive authority to grant plaintiff parole and set any actual parole release date. Thus, as one court has recently explained, [A]ny credits earned [by a prisoner] on his indeterminate life sentences can only affect the ultimate establishment of a MEPD; they can have no real impact on the actual sentence eventually set for [the prisoner] or on his eventual release date on parole, should that time ever come. Burton v. Adams, 1:09-cv-0354 JLT HC, 2010 WL 703182, at *7 (E.D. Cal. Feb. 25, 2010). 10 1 B. Due Process 2 The Due Process Clause of the Fourteenth Amendment prohibits state action that 3 deprives a person of life, liberty, or property without due process of law. U.S. Const. amend 4 XIV. A plaintiff alleging a procedural due process violation must first demonstrate that he was 5 deprived of a liberty or property interest protected by the Due Process Clause and then show that 6 the procedures attendant upon the deprivation were not constitutionally sufficient. Ky. Dep’t of 7 Corr. v. Thompson, 490 U.S. 454, 459-60 (1989); McQuillion v. Duncan, 306 F.3d 895, 900 (9th 8 Cir. 2002); Brewster v. Bd. of Education., 149 F.3d 971, 982 (9th Cir. 1998). In the context of a 9 prison disciplinary action, a prisoner may be deprived of a protected liberty interest if the action 10 in dispute resulted in the imposition of an “atypical and significant hardship on [him] in relation 11 to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). See also 12 Neal v. Shimoda, 131 F.3d 818, 827-29 (9th Cir. 1997). 13 In this case, the court finds that plaintiff has failed to allege facts establishing a 14 prima facie due process violation. In particular, plaintiff has not alleged facts in his complaint 15 demonstrating that his confinement in administrative segregation constituted “an atypical and 16 significant hardship on [him] in relation to the ordinary incidents of prison life.” Sandin, 515 17 U.S. at 484. Plaintiff’s complaint does not present any facts showing that the conditions of his 18 confinement in administrative segregation amounted to “a major disruption in his environment” 19 or were more burdensome than the conditions faced by the general population. Id. at 486. At 20 most, plaintiff asserts that he was forced to spend four months in administrative segregation. 21 However, spending four months in administrative segregation is insufficient, in of itself, to 22 establish “the type of atypical, significant deprivation [that] might conceivably create a liberty 23 interest.” Id. See also May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997) (holding that 24 placement in administrative segregation is insufficient to state a due process claim); Saenz v. 25 Spearman, No. 1:09-cv-0557 YNP PC, 2009 WL 3233799, at *9-11 (E.D. Cal. Oct. 1, 2009) 26 (finding that one-year confinement in administrative segregation did not, in of itself, implicate a 11 1 protected liberty interest); Del Rio v. Schwarzenegger, No. EDCV 09-214 TJH (MAN), 2009 2 WL 1657438, at *9 (C.D. Cal. June 10, 2009) (same). 3 Even assuming plaintiff’s placement in administrative segregation did implicate a 4 protected liberty interest, plaintiff was afforded all the process he was due. Plaintiff alleges in his 5 complaint that he was not provided with an investigative employee, witnesses, or the opportunity 6 to present evidence at his 114-D hearing on November 10, 2008 and at his ICC hearing three 7 days later. (Compl. at 9.) Such protections and procedures, however, are not required at the 8 identified stages of the prison disciplinary process. When prison officials are deciding whether 9 to place or retain a prisoner in administrative segregation pending an investigation into 10 11 12 13 14 15 16 17 disciplinary charges, due process requires only the following: Prison officials must hold an informal nonadversary hearing within a reasonable time after the prisoner is segregated. The prison officials must inform the prisoner of the charges against the prisoner or their reasons for considering segregation. Prison officials must allow the prisoner to present his views. We [the Ninth Circuit] specifically find that the due process clause does not require detailed written notice of charges, representation by counsel or counsel-substitute, an opportunity to present witnesses, or a written decision describing the reasons for placing the prisoner in administrative segregation. We also find that due process does not require disclosure of the identity of any person providing information leading to the placement of a prisoner in administrative segregation. 18 19 Toussaint v. McCarthy, 801 F.2d 1080, 1100-01 (9th Cir. 1986). See also Hewitt v. Helms, 459 20 U.S. 460, 476 (1983) (“[A]n informal, nonadversary evidentiary review is sufficient . . . to 21 confine an inmate to administrative segregation pending completion of [any] investigation into 22 misconduct charges against him.”). 23 Here, plaintiff was placed in administrative segregation on November 9, 2008, 24 pending an investigation into accusations that he was pressuring inmates into making false 25 allegations against other inmates and staff members. (Compl. at 8.) At that point, due process 26 required only that prison officials hold an “informal nonadversary hearing within a reasonable 12 1 time” to inform plaintiff of the charges and give him an opportunity to present his views. 2 Toussaint, 801 F.2d at 1100-01. Such a hearing was held the following day when plaintiff 3 appeared for his 114-D hearing. (Compl. at 9.) At that time plaintiff was provided with the 4 reasons for his placement in administrative segregation and was given an opportunity to present 5 his views. (See id., Ex. G.) Moreover, three days later on November 13, 2008, plaintiff appeared 6 for another hearing before the ICC board to determine whether he should be retained in 7 administrative segregation. (Id. at 9.) At the ICC hearing, plaintiff was once again provided with 8 the reasons for his segregation and was given an opportunity to present his views. (Id., Ex. H.) 9 Therefore, at those early stages of the prison disciplinary process, plaintiff was afforded all the 10 procedural protection he was entitled to under the Due Process Clause.4 11 Finally, to the extent that plaintiff’s complaint can be read as alleging a 12 substantive due process claim, such a claim is to be assessed under First Amendment standards. 13 In this regard, where a particular Amendment of the U.S. Constitution provides the explicit 14 textual source of a constitutional protection, that Amendment, and “not the mere generalized 15 notion of substantive due process, must be the guide for analyzing [those] claims.” Graham v. 16 Connor, 490 U.S. 386, 395 (1989). See also Patel v. Penman, 103 F.3d 868, 874 (9th Cir. 1996) 17 (citations omitted). Here, the thrust of plaintiff’s allegations is that defendants have made false 18 accusations against him in retaliation for his filing of grievances and complaints regarding the 19 abuse of EOP inmates. Such a claim fall squarely within the protections of the First Amendment. 20 See Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (reaffirming that prisoners have 21 22 23 24 25 26 4 Plaintiff does not appear to challenge the procedural adequacy of his actual disciplinary hearing, at which time he would have been entitled to greater procedural protections than those set forth in Toussaint. See Wolff v. McDonnell, 418 U.S. 539, 564-70 (1974). Nonetheless, had plaintiff made such a claim, the court would have again concluded that he was afforded all the process he was due. Specifically, according to his won complaint plaintiff was (1) provided written notice of all the charges against him; (2) afforded more than 24 hours to prepare his defense; (3) given a written statement regarding the evidence on which the factfinders relied on; (4) allowed to request witnesses; and (5) deemed competent to understand the nature of the charges against him. (Compl., Ex. K.) 13 1 cognizable claims under § 1983 and the First Amendment regarding retaliatory actions by prison 2 officials). 3 4 Accordingly, for all the reasons discussed above, defendants’ motion to dismiss plaintiff’s due process claims should be granted. 5 C. Retaliation 6 Under the First Amendment, prison officials may not retaliate against prisoners 7 for initiating litigation or filing administrative grievances. Rhodes v. Robinson, 408 F.3d 559, 8 568 (9th Cir. 2005). A viable claim of First Amendment retaliation entails five basic elements: 9 (1) an assertion that a state actor took some adverse action against an inmate (2) because of (3) 10 that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his 11 First Amendment rights, and (5) the action did not reasonably advance a legitimate penological 12 purpose. Id.; Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994). 13 Although the court accepts as true plaintiff’s allegations on a motion to dismiss, 14 the court need not accept as true allegations that are conclusory or inferences that are 15 unreasonable. W. Mining Council, 643 F.2d at 624. Here, the court finds plaintiff’ allegations 16 against defendants Lackner and Martel to be wholly conclusory and insufficient to establish that 17 the actions of those defendants did not advance a legitimate penological purpose. In his 18 complaint, plaintiff merely alleges that the actions of defendant Martel were retaliatory and did 19 not advance any legitimate penological purpose because Martel had “misgivings about the 20 charges against plaintiff” yet decided to retain plaintiff in segregation nonetheless. (Compl. at 9.) 21 In addition, plaintiff argues in his opposition to the pending motion to dismiss that defendant 22 Martel failed to release him from segregation immediately after he was found not guilty on the 23 second set of disciplinary charges. (Opp’n at 11.) Plaintiff’s allegations in this regard represent 24 no more than pure speculation that defendant Martel acted with a retaliatory motive and without 25 advancing a legitimate penological purpose. 26 ///// 14 1 Plaintiff’s allegations against defendant Lackner are equally lacking. Plaintiff’s 2 only allegation against defendant Lackner is that she wrote him a letter, wherein she stated that 3 further review and an ICC hearing would be conducted into the reasons for plaintiff’s placement 4 in administrative segregation. (Compl. at 11.) According to plaintiff, however, such a hearing 5 was never conducted and his transfer to a different prison was not rescinded. (Id.) From this 6 alone, plaintiff concludes that defendant Lackner sought to retaliate against him for filing EOP- 7 related grievances. Again, without more, plaintiff’s allegations against defendant Lackner do not 8 rise above the purely speculative level. See Bell Atlantic Corp., 550 U.S. at 555 (2007). 9 Accordingly, because plaintiff’s allegations against defendants Lackner and 10 Martel are wholly conclusory, the court recommends that plaintiff’s First Amendment retaliation 11 claims against these defendants be dismissed. 12 D. Qualified Immunity 5 13 Determining whether an official is entitled to qualified immunity requires a two- 14 part analysis. See Saucier v. Katz, 533 U.S. 194, 201 (2001); Ramirez v. City of Buena Park, 15 560 F.3d 1012, 1020 (9th Cir. 2009). First, a court must decide whether the facts alleged, when 16 taken in the light most favorable to plaintiff, demonstrate that the defendants’ conduct violated a 17 statutory or constitutional right. Saucier, 533 U.S. at 201-02. Second, the court must determine 18 whether the statutory or constitutional right alleged by plaintiff was “clearly established.” Id. at 19 201. A right is “clearly established” for the purpose of qualified immunity if “‘it would be clear 20 to a reasonable [prison official] that his conduct was unlawful in the situation he confronted’ . . . 21 or whether the state of the law [at the time of the alleged violation] gave ‘fair warning’ to [him] 22 that [his] conduct was unconstitutional.” Clement v. Gomez, 298 F.3d 898, 906 (9th Cir. 2002) 23 24 25 26 5 In light of the recommendations that plaintiff’s due process claims against all defendants and plaintiff’s First Amendment retaliation claims against defendants Lackner and Martel be dismissed, the court will only address defendants’ qualified immunity argument as it applies to plaintiff’s First Amendment retaliation claims brought against defendants Feltner and Machado. 15 1 (quoting Saucier, 533 U.S. at 202). Because qualified immunity is an affirmative defense, the 2 initial burden of proof lies with the prison official asserting the defense. See Houghton v. South, 3 965 F.2d 1532, 1536 (9th Cir. 1992). 4 Although it is often beneficial to approach the two-part inquiry in the sequence 5 prescribed above, it is not mandatory. Pearson v. Callahan, 555 U.S. ___, ___, 129 S. Ct. 808, 6 815 (2009). A district court has “discretion in deciding which of the two prongs of the qualified 7 immunity analysis should be addressed first.” Id. See also Ramirez, 560 F.3d at 1020. The 8 court may grant defendants qualified immunity at any point the court answers either prong of the 9 inquiry in the negative. See e.g., Tibbetts v. Kulongoski, 567 F.3d 529, 536-39 (9th Cir. 2009) 10 (bypassing the first prong and granting defendants qualified immunity because plaintiff’s due 11 process right was not clearly established at the time of alleged violation). 12 In this case, plaintiff’s First Amendment right to file inmate grievances free from 13 prison official retaliation was clearly established by 2008, the year of the alleged violations. See 14 Pratt, 65 F.3d at 806 (“[T]he prohibition against retaliatory punishment is clearly established law 15 in the Ninth Circuit, for qualified immunity purposes.”). Thus, defendants Feltner and Machado 16 are entitled to qualified immunity only if plaintiff has failed to allege facts that, if proven, would 17 sufficiently demonstrate that defendants’ conduct violated his First Amendment rights. See 18 Saucier, 533 U.S. at 201. 19 The court finds that plaintiff’s allegations against defendant Feltner, if proven to 20 be true, establish that his conduct violated plaintiff’s First Amendment rights. Specifically, in his 21 complaint plaintiff alleges that defendant Feltner warned him not to complain about EOP inmate 22 abuse, especially because one of the individuals being accused by plaintiff was defendant 23 Feltner’s “inside man.” (Compl. at 4.) Plaintiff further alleges that when Ms. Scott issued her 24 memo regarding EOP inmate abuse, defendant Feltner became outraged and immediately 25 suspected plaintiff of being behind all of the complaints. (Id. at 5.) According to plaintiff, 26 defendant Feltner warned plaintiff that he was “going to get burned very badly playing with fire.” 16 1 (Id. at 6.) Plaintiff has alleged that after he persisted in filing an inmate grievance regarding the 2 EOP inmate abuse, defendant Feltner issued false disciplinary charges against him and had him 3 placed in administrative segregation. (Id. at 8.) In plaintiff’s view, defendant Feltner’s 4 retaliatory actions were designed to chill plaintiff’s complaints and therefore did not serve any 5 legitimate penological purpose. (See id. at 13.) 6 Similarly, the court finds that plaintiff’s allegations against defendant Machado, if 7 proven to be true, also establish that his conduct violated plaintiff’s First Amendment rights. In 8 particular, plaintiff alleges in his complaint that defendant Machado knew that defendant Feltner 9 falsified the disciplinary charges against plaintiff. (Compl. at 9.) Plaintiff alleges that defendant 10 Machado nevertheless decided to retain him in administrative segregation. (Id.) According to 11 plaintiff, when he protested being retained in segregation, defendant Machado responded, 12 “Maybe if you hadn’t written that [CDC-602] and contacted the judge about the EOP program, 13 you wouldn’t be here.” (Id.) In plaintiff’s view, defendant Machado’s statement shows that his 14 actions were designed to further defendant Feltner’s retaliatory scheme and were not intended to 15 advance any legitimate penological purpose. (See id. at 12.) 16 Accordingly, because plaintiff’s rights were clearly established at the time and 17 because plaintiff’s allegations, if proven true, demonstrate that the conduct of defendants Feltner 18 and Machado violated his rights, these two defendants are not entitled to dismissal of plaintiff’s 19 First Amendment retaliation claims on qualified immunity grounds. 20 21 22 23 24 25 26 CONCLUSION Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court is directed to randomly assign a United States District Judge to this action. IT IS HEREBY RECOMMENDED that defendants’ December 18, 2009 motion to dismiss (Doc. No. 13) be granted in part and denied in part as follows: 1. Defendants’ motion to dismiss plaintiff’s complaint as barred by the favorable termination rule be denied; 17 1 2 2. Defendants’ motion to dismiss plaintiff’s Fourteenth Amendment Due Process Clause claims against defendants Feltner, Machado, Lackner and Martel be granted; 3 4 3. Defendants’ motion to dismiss plaintiff’s First Amendment retaliation claims against defendants Lackner and Martel be granted; and 5 6 4. Defendants’ motion to dismiss plaintiff’s First Amendment retaliation claims against defendants Feltner and Machado on the grounds of qualified immunity be denied. 7 These findings and recommendations are submitted to the United States District 8 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty- 9 one days after being served with these findings and recommendations, any party may file written 10 objections with the court and serve a copy on all parties. Such a document should be captioned 11 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 12 shall be served and filed within fourteen days after service of the objections. The parties are 13 advised that failure to file objections within the specified time may waive the right to appeal the 14 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 DATED: July 17, 2010. 16 17 18 19 DAD:sj vand1576.56 20 21 22 23 24 25 26 18
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