(PC) Von Villas v. Pallares, et al., No. 1:2013cv01869 - Document 19 (E.D. Cal. 2014)
Court Description: FINDINGS and RECOMMENDATIONS to Allow Plaintiff to Proceed on Cognizable Retatliation Claim Against Defendant Heberling and to Dismiss All Other Claims and Defendants, signed by Magistrate Judge Jennifer L. Thurston on 12/12/2014, referred to Judge O'Neill. Objections to F&R Due Within Thirty Days.(Marrujo, C)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT A. VON VILLAS, Plaintiff, 12 v. 13 14 PALLARES, et al., Defendants. 15 16 Case No. 1:13-cv-01869-LJO-JLT (PC) FINDINGS AND RECOMMENDATION TO ALLOW PLAINTIFF TO PROCEED ON COGNIZABLE RETALIATION CLAIM AGAINST DEFENDANT HEBERLING AND TO DISMISS ALL OTHER CLAIMS AND DEFENDANTS (Doc. 16) 30-DAY DEADLINE 17 18 I. Findings 19 A. Procedural History 20 Plaintiff, Robert A. Von Villas, is a state prisoner who is proceeding pro se in this civil 21 rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on November 18, 2013. 22 (Doc. 1.) It was screened and dismissed with leave to amend. (Doc. 11.) Plaintiff filed the First 23 Amended Complaint which is before the Court for screening. (Doc. 16.) 24 B. Screening Requirement 25 The Court is required to screen complaints brought by prisoners seeking relief against a 26 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 27 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 28 frivolous, malicious, fail to state a claim upon which relief may be granted, or that seek monetary 1 1 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2); 28 U.S.C. 2 § 1915(e)(2)(B)(i)-(iii). 3 C. 4 Plaintiff complains of acts that occurred while he was an inmate at the California 5 Substance Abuse Treatment Facility and State Prison (ASATF@) in Corcoran, California. Plaintiff 6 names Lieutenants M. Pallares and T. Akin, and Sergeant S. Heberling as the Defendants in this 7 action. Plaintiff seeks monetary, declaratory, and injunctive relief. 8 9 Summary of the First Amended Complaint Plaintiff alleges that as a result of his filing administrative grievances ("602") regarding the handling of his and his cellmate's mail, his cell was ransacked and he was charged with false 10 RVRs as to which he was not allowed to present exculpatory evidence resulting in him being 11 found guilty. Plaintiff asserts the following claims: (1) against Defendant Heberling for 12 improper handling of his 602; (2) for retaliation in violation of the First Amendment against 13 Defendant Heberling; (3) for due process violations in retaliation in violation of the First 14 Amendment against Defendant Akin; (4) for retaliation in violation of the First Amendment 15 against Defendant Palares; and (5) for violation of his due process rights against Defendant 16 Palares. 17 For the reasons discussed below, Plaintiff states a cognizable retaliation claim against 18 Defendant Heberling on which he should be allowed to proceed. However, Plaintiff fails to state 19 any other cognizable claims such that all other claims and Defendants should be dismissed. 20 II. Analysis 21 22 23 24 25 A. Plaintiff's Claims 1. First Amendment -- Retaliation Plaintiff attempts to state retaliation claims against Defendants Heberling (Doc. 16, Claim 2, pp. 4-7), Akin (id., Claim 3, pp. 7-11), and Palares (id., Claim 4, pp. 11-13). Prisoners have a First Amendment right to file grievances against prison officials and to 26 be free from retaliation for doing so. Waitson v. Carter, 668 F.3d 1108, 1114-1115 (9th Cir. 27 2012); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir.2009). A retaliation claim has five 28 elements. Id. at 1114. 2 1 First, the plaintiff must allege that the retaliated-against conduct is protected. Id. The 2 filing of an inmate grievance is protected conduct, Rhodes v. Robinson, 408 F.3d 559, 568 (9th 3 Cir. 2005), as are the rights to speech or to petition the government, Rizzo v. Dawson, 778 F.2d 4 527, 532 (9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); 5 Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). Second, the plaintiff must show the 6 defendant took adverse action against the plaintiff. Rhodes, at 567. Third, the plaintiff must 7 allege a causal connection between the adverse action and the protected conduct. Waitson, 668 8 F.3d at 1114. Fourth, the plaintiff must allege that the “official’s acts would chill or silence a 9 person of ordinary firmness from future First Amendment activities.” Robinson, 408 F.3d at 568 10 (internal quotation marks and emphasis omitted). Fifth, the plaintiff must allege “that the prison 11 authorities’ retaliatory action did not advance legitimate goals of the correctional institution. . . .” 12 Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir.1985). 13 It bears repeating that while Plaintiff need only allege facts sufficient to support a 14 plausible claim for relief, the mere possibility of misconduct is not sufficient, Iqbal, 556 U.S. at 15 678-79, and the Court is “not required to indulge unwarranted inferences,” Doe I v. Wal-Mart 16 Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 17 The conduct identified by Plaintiff as retaliatory must have been motivated by his engaging in a 18 protected activity, and the conduct must not have reasonably advanced a legitimate penological 19 goal. Brodheim, 584 F.3d at 1271-72 (citations omitted). Thus, mere allegations that Plaintiff 20 engaged in protected activity, without knowledge resulting in animus by a Defendant, is 21 insufficient to show that Plaintiff=s protected activity was the motivating factor behind a 22 Defendant’s actions. 23 Plaintiff alleges that, based on his submitting 602s regarding the handling of his and his 24 cellmate's mail and a staff complaint which Plaintiff submitted against Sgt. Heberling, Sgt. 25 Heberling retaliated. Plaintiff alleges Heberling filed a false RVR against him, attempted to get 26 him to agree to transfer to another yard based on a kite she purportedly received (a note indicating 27 that Plaintiff was in danger), had Plaintiff's cell searched repeatedly and left in shambles, and 28 claimed to have received a note indicating that Plaintiff was going to have Heberling stabbed 3 1 which resulted in Plaintiff being placed in Ad-Seg. This states a cognizable retaliation claim 2 against Defendant Heberling. 3 Plaintiff alleges that Defendant Akin was aware that Plaintiff had filed a 602 and a 4 complaint with I.A. against Defendant Heberling and, as a result, Defendant Akin conducted the 5 disciplinary hearing resulting from the anonymous note that indicated Plaintiff was going to have 6 Defendant Heberling stabbed. Plaintiff claims Defendant Akin conducted the hearing in a 7 manner that denied him the ability to defend himself with witnesses and/or evidence and found 8 Plaintiff guilty of possession of a weapon without sufficient evidence. Defendant Akin's ruling 9 resulted in Plaintiff spending 280 days in Ad Seg and caused Plaintiff to develop an anxiety 10 disorder. While these events could chill a person of ordinary firmness from taking protected 11 action, Plaintiff's mere conclusory allegation that Defendant Akin was aware of Plaintiff’s 12 complaints about Heberling within any showing that Akin’s actions were motivated by this 13 knowledge. Mere knowledge of Plaintiff’s complaints does not suffice to show Defendant Akin 14 acted with retaliatory animus. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell 15 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (A[t]hreadbare recitals of the elements of a 16 cause of action, supported by mere conclusory statements, do not suffice@); see also Moss v. U.S. 17 S(ecret Service, 572 F.3d 962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557 (factual 18 allegations are accepted as true, but legal conclusions are not). Thus, Plaintiff does not state a 19 cognizable retaliation claim against Defendant Akin. 20 Plaintiff alleges that he was given a new hearing and was granted a typed copy of the kite 21 against him and that Defendant Palares conducted the new hearing. Plaintiff alleges that 22 Defendant Palares, like Defendant Akin, conducted the hearing in a manner that denied Plaintiff 23 the ability to defend himself, failed to note any of Plaintiff's exculpatory evidence, and found 24 Plaintiff guilty of possession of a weapon without a single report indicating Plaintiff possessed a 25 weapon. However, while Plaintiff alleges that Defendant Palares acted in violation of his due 26 process rights to support Defendant Heberling and retaliate against Plaintiff for filing a grievance 27 against her, Plaintiff fails to state any specific facts to show that Defendant Palares knew Plaintiff 28 had filed a grievance against Defendant Heberling or was acting for purposes of retaliation. See 4 1 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 2 544, 555 (2007) (A[t]hreadbare recitals of the elements of a cause of action, supported by mere 3 conclusory statements, do not suffice@); see also Moss v. U.S. S(ecret Service, 572 F.3d 962, 969 4 (9th Cir. 2009); Twombly, 550 U.S. at 556-557 (factual allegations are accepted as true, but legal 5 conclusions are not). Thus, Plaintiff also does not state a cognizable retaliation claim against 6 Defendant Palares. 7 8 9 10 11 2. Fourteenth Amendment -- Due Process a. Disciplinary Hearings Plaintiff asserts due process claims against Defendants Akin (Doc. 16, Claim 3, pp. 8-11) and Palares (id., Claim 5, pp. 13-16). The Due Process Clause protects prisoners from being deprived of liberty without due 12 process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a cause of action 13 for deprivation of due process, a plaintiff must first establish the existence of a liberty interest for 14 which the protection is sought. AStates may under certain circumstances create liberty interests 15 which are protected by the Due Process Clause.@ Sandin v. Conner, 515 U.S. 472, 483-84 (1995). 16 Liberty interests created by state law are generally limited to freedom from restraint which 17 Aimposes atypical and significant hardship on the inmate in relation to the ordinary incidents of 18 prison life.@ Id. 515 U.S. at 484. 19 APrison disciplinary proceedings are not part of a criminal prosecution, and the full 20 panoply of rights due a defendant in such proceedings does not apply.@ Wolff, 418 U.S. at 556. 21 With respect to prison disciplinary proceedings, the minimum procedural requirements that must 22 be met are: (1) written notice of the charges; (2) at least 24 hours between the time the prisoner 23 receives written notice and the time of the hearing, so that the prisoner may prepare his defense; 24 (3) a written statement by the fact finders of the evidence they rely on and reasons for taking 25 disciplinary action; (4) the right of the prisoner to call witnesses and present documentary 26 evidence in his defense, when permitting him to do so would not be unduly hazardous to 27 institutional safety or correctional goals; and (5) legal assistance to the prisoner where the 28 prisoner is illiterate or the issues presented are legally complex. Id. at 563-71. Confrontation and 5 1 cross examination are not generally required. Id. at 567. As long as the five minimum Wolff 2 requirements are met, due process has been satisfied. Walker v. Sumner, 14 F.3d 1415, 1420 (9th 3 Cir. 1994). 4 AWhen prison officials limit a prisoner=s right to defend himself they must have a 5 legitimate penological interest.@ Koenig v. Vannelli, 971 F.2d 422, 423 (9th Cir. 1992) (per 6 curiam) (concluding that prisoners do not have a right to have an independent drug test performed 7 at their own expense). The right to call witnesses may legitimately be limited by Athe penological 8 need to provide swift discipline in individual cases . . . [or] by the very real dangers in prison life 9 which may result from violence or intimidation directed at either other inmates or staff.@ Ponte v. 10 Real, 471 U.S. 491, 495 (1985); see also Mitchell v. Dupnik, 75 F.3d 517, 525 (9th Cir. 1996); 11 Koenig, 971 F.2d at 423; Zimmerlee v. Keeney, 831 F.2d 183, 187-88 (9th Cir. 1987)(per curiam). 12 A[T]he requirements of due process are satisfied if some evidence supports the decision by 13 the prison disciplinary board . . . .@ Hill, 472 U.S. at 455; see also Touissaint v. McCarthy, 926 14 F.2d 800, 802-03 (9th Cir. 1991); Bostic v. Carlson, 884 F.2d 1267, 1269-70 (9th Cir. 1989); 15 Jancsek, III v. Oregon Bd. of Parole, 833 F.2d 1389, 1390 (9th Cir. 1987); Cato v. Rushen, 824 16 F.2d 703, 705 (9th Cir. 1987); see especially Burnsworth v. Gunderson, 179 F.3d 771, 774-74 17 (9th Cir. 1999) (where there is no evidence of guilt may be unnecessary to demonstrate existence 18 of liberty interest.) The relevant inquiry is whether Athere is any evidence in the record that could 19 support the conclusion reached . . . @ as A[t]he Federal Constitution does not require evidence that 20 logically precludes any conclusion but the one reached by the disciplinary board.@ 21 57 (emphasis added). 22 Hill at 455- Once again, Plaintiff alleged that he was arbitrarily denied the witnesses he requested and 23 was not allowed to present evidence of being set-up. However, as stated in the screening order, 24 this alone is insufficient to support a claim of denial of procedural due process without showing 25 infringement of a protected liberty interest. The fatal flaw in Plaintiff's pleading is that he once 26 again fails to show that a protected liberty interest was in any way infringed on as a result of the 27 alleged violations of his due process rights in the disciplinary hearing. 28 Plaintiff was previously given all of the above standards. Thus, Plaintiff fails to state a 6 1 cognizable claim for violation of his rights to due process against any of the Defendants and it 2 appears that he is unable to do so -- which obviates basis to provide leave for further amendment. 3 b. Inmate Appeals -- 602s 4 5 Plaintiff attempts to state a claim against Defendant Heberling for willfully failing to process Plaintiff's grievances ("602s") appeals. (Doc. 16, Claim 1, pp. 3-4.) As stated in the prior screening order, A[a prison] grievance procedure is a procedural right 6 7 only, it does not confer any substantive right upon the inmates.@ Azeez v. DeRobertis, 568 F. 8 Supp. 8, 10 (N.D. Ill. 1982) accord Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993); see 9 also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no liberty interest in processing of 10 appeals because no entitlement to a specific grievance procedure); Massey v. Helman, 259 F.3d 11 641, 647 (7th Cir. 2001) (existence of grievance procedure confers no liberty interest on 12 prisoner); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). AHence, it does not give rise to a 13 protected liberty interest requiring the procedural protections envisioned by the Fourteenth 14 Amendment.@ Azeez v. DeRobertis, 568 F. Supp. at 10; Spencer v. Moore, 638 F. Supp. 315, 316 15 (E.D. Mo. 1986). 16 Actions in reviewing prisoner=s administrative appeal cannot serve as the basis for liability 17 under a ' 1983 action. Buckley, 997 F.2d at 495. The argument that anyone who knows about a 18 violation of the Constitution, and fails to cure it, has violated the Constitution himself is not 19 correct. AOnly persons who cause or participate in the violations are responsible. Ruling against 20 a prisoner on an administrative complaint does not cause or contribute to the violation.@ Greeno 21 v. Daley, 414 F.3d 645, 656-57 (7th Cir.2005) accord George v. Smith, 507 F.3d 605, 609-10 (7th 22 Cir. 2007); Reed v. McBride, 178 F.3d 849, 851-52 (7th Cir.1999); Vance v. Peters, 97 F.3d 987, 23 992-93 (7th Cir.1996). 24 Thus, since he has neither a liberty interest, nor a substantive right in inmate appeals, 25 Plaintiff fails and is unable to state a cognizable claim against Defendant Heberling for the 26 processing and/or reviewing of his 602 inmate appeals. 27 III. 28 CONCLUSION Plaintiff's First Amended Complaint states a cognizable retaliation claim in violation of 7 1 the First Amendment against Defendant Heberling. However, Plaintiff fails to state a cognizable 2 claim against Defendant Heberling for the processing/handling of his inmate grievances and fails 3 to state a cognizable claim against Defendants Akin and Palares for retaliation in violation of the 4 First Amendment and for violation of his rights under the Due Process Clause -- these claims 5 should be dismissed. 6 Accordingly, it is HEREBY RECOMMENDED that Plaintiff be allowed to proceed on 7 his retaliation claim against Defendant Heberling, but that his claim against Defendant Heberling 8 for the processing/handling of his inmate grievances and Defendants Akin and Palares be 9 dismissed with prejudice. 10 These Findings and Recommendations will be submitted to the United States District 11 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within 30 12 days after being served with these Findings and Recommendations, Plaintiff may file written 13 objections with the Court. The document should be captioned AObjections to Magistrate Judge=s 14 Findings and Recommendations.@ Plaintiff is advised that failure to file objections within the 15 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, __ F.3d __, __, 16 No. 11-17911, 2014 WL 6435497, at *3 (9th Cir. Nov. 18, 2014) (citing Baxter v. Sullivan, 923 17 F.2d 1391, 1394 (9th Cir. 1991)). 18 19 20 IT IS SO ORDERED. Dated: December 12, 2014 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 8
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