(PC) Von Villas v. Pallares, et al., No. 1:2013cv01869 - Document 34 (E.D. Cal. 2015)
Court Description: FINDINGS and RECOMMENDATIONS to Allow Plaintiff to Proceed on Claims 2, 3, 4, & 6 and to Dismiss Claims 1, 5, & 7 with Prejudice signed by Magistrate Judge Jennifer L. Thurston on 08/26/2015. Referred to Judge O'Neill; Objections to F&R due by 9/28/2015.(Flores, E)
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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 Case No. 1:13-cv-01869-LJO-JLT (PC) FINDINGS AND RECOMMENDATION TO ALLOW PLAINTIFF TO PROCEED ON CLAIMS 2, 3, 4, & 6 and TO DISMISS CLAIMS 1, 5, & 7 WITH PREJUDICE (Doc. 33) 30-DAY DEADLINE 16 Before the Court is Plaintiff’s second amended complaint seeking to impose liability on 17 18 various prison officials for acts he contends violate the United States Constitution. 19 I. 20 Screening Requirement The Court is required to screen complaints brought by prisoners seeking relief against a 21 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 22 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 23 frivolous, malicious, fail to state a claim upon which relief may be granted, or that seek monetary 24 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2); 28 U.S.C. 25 § 1915(e)(2)(B)(i)-(iii). 26 A. Summary of the Second Amended Complaint 27 Plaintiff complains of acts that occurred while he was an inmate at the California 28 Substance Abuse Treatment Facility and State Prison (ASATF@) in Corcoran, California. Plaintiff 1 1 names Lieutenants M. Pallares and T. Akin, and Sergeant S. Heberling as the Defendants in this 2 action. Plaintiff seeks monetary, declaratory, and injunctive relief. 3 Plaintiff alleges that as a result of his filing administrative grievances ("602") regarding 4 the handling of his outgoing mail, his cell was searched, and he was charged with false RVRs 5 against which he was not allowed to present exculpatory evidence and was ultimately found 6 guilty. Plaintiff asserts the following claims: (1) against Defendant Heberling for improper 7 handling of his 602 (Doc. 33, at pp. 3-4) ; (2) for retaliation in violation of the First Amendment 8 against Defendant Heberling (id., at pp. 4-6); (3) for retaliation in violation of the First 9 Amendment against Defendant Akin (id., at pp. 6-9); (4) for retaliation in violation of the First 10 Amendment against Defendant Pallares (id., at pp. 9-11); (5) for violation of his rights to equal 11 protection under the Fourteenth Amendment against Defendants Akin and Pallares (id., at pp. 11- 12 12); (6) for violation of his rights to due process under the Fourteenth Amendment against 13 Defendant Pallares (id., at pp. 12-15); and (7) violation of his rights to due process under the 14 Fourteenth Amendment against Defendant Heberling (id., at pp. 15-16). 15 For the reasons discussed below, Claims 2, 3, 4, and 6 in the Second Amended Complaint 16 are cognizable and Plaintiff should be allowed to proceed on them. However, Claims 1, 5, and 7 17 are not cognizable and should be dismissed with prejudice. 18 B. 19 Plaintiff's Claims 1. First Amendment -- Retaliation 20 Plaintiff attempts to state retaliation claims against Defendants Heberling (id., Claim 2, at 21 pp. 4-6; and Claim 7, at pp. 15-16), Akin (id., Claim 3, pp. 6-9), and Palares (id., Claim 4, pp. 9- 22 11). 23 Prisoners have a First Amendment right to file grievances against prison officials and to 24 be free from retaliation for doing so. Waitson v. Carter, 668 F.3d 1108, 1114-1115 (9th Cir. 25 2012); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir.2009). A retaliation claim has five 26 elements. Id. at 1114. First, the plaintiff must allege that the retaliated-against conduct is 27 protected. Id. The filing of an inmate grievance is protected conduct, Rhodes v. Robinson, 408 28 F.3d 559, 568 (9th Cir. 2005), as are the rights to speech or to petition the government, Rizzo v. 2 1 Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 2 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). Second, the plaintiff must 3 show the defendant took adverse action against the plaintiff. Rhodes, at 567. Third, the plaintiff 4 must allege a causal connection between the adverse action and the protected conduct. Waitson, 5 668 F.3d at 1114. Fourth, the plaintiff must allege that the “official’s acts would chill or silence a 6 person of ordinary firmness from future First Amendment activities.” Robinson, 408 F.3d at 568 7 (internal quotation marks and emphasis omitted). Fifth, the plaintiff must allege “that the prison 8 authorities’ retaliatory action did not advance legitimate goals of the correctional institution. . . .” 9 Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir.1985). 10 It bears repeating that while Plaintiff need only allege facts sufficient to support a 11 plausible claim for relief, the mere possibility of misconduct is not sufficient, Iqbal, 556 U.S. at 12 678-79, and the Court is “not required to indulge unwarranted inferences,” Doe I v. Wal-Mart 13 Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 14 The conduct identified by Plaintiff as retaliatory must have been motivated by his engaging in a 15 protected activity, and the conduct must not have reasonably advanced a legitimate penological 16 goal. Brodheim, 584 F.3d at 1271-72 (citations omitted). Thus, mere allegations that Plaintiff 17 engaged in protected activity is insufficient to show that Plaintiff=s protected activity was the 18 motivating factor behind a Defendant’s actions. 19 In Claim 2, Plaintiff alleges that, on 12/27/10, he filed a 602 and a staff complaint 20 regarding the handling of his and his cellmate's mail. (Doc. 33, pp. 3-4.) Plaintiff alleges that the 21 next day, Heberling asked him who it was for to which Plaintiff responded that it was for 22 whoever was failing to seal the outgoing mail. (Id.) The next evening, when returning from 23 dinner, Plaintiff saw Heberling exit his cell carrying some of his personal property, but she 24 refused to stop and talk or to provide a receipt for the items she was confiscating. (Id., at p. 4.) 25 Seven days later, Heberling issued a false RVR to Plaintiff for misuse of state property and theft; 26 (id., at pp. 4-5.) Heberling strongly advised Plaintiff to transfer off her yard (id., at p. 5); two 27 months later Heberling ordered Plaintiff's cell searched for a cell phone that was detected coming 28 from an area Plaintiff did not have access to (id.); four days later, an anonymous note was found 3 1 alleging that Plaintiff paid his cellmate to stab Heberling which caused Plaintiff to be removed 2 from the yard as Heberling wanted (id.); and Heberling stated to the officer who was investigating 3 the charge regarding a cell phone against Plaintiff, that Plaintiff had been loud and disruptive 4 during that search and that Plaintiff said improper things about her which were later proven false 5 (id.). These allegations state a cognizable retaliation claim against Sgt. Heberling. 6 However, in Claim 7, Plaintiff's allegations that Sgt. Heberling denied his due process 7 protections in the processing of his 602 regarding his outgoing mail not being sealed so as to keep 8 him from exhausting administrative remedies (id., at pp. 15-16) does not state a cognizable 9 retaliation claim. 10 In Claim 3, Plaintiff alleges that when the anonymous note was found which indicated that 11 he wanted his cellmate to stab Heberling, a search of their cell revealed that Plaintiff's cellmate 12 had a knife hidden in a box of Nutty Bars. (Id., at p. 7.) Plaintiff and his cellmate were both 13 charged by Akin with possession of a weapon and placed in Ad Seg. (Id.) Despite having a 14 confidential memorandum in his possession that the anonymous note implicating Plaintiff in the 15 plot to have Heberling stabbed was not reliable, Akin wrongly found Plaintiff guilty of possession 16 of a weapon -- a rules violation that Plaintiff did not commit. (Id., at pp. 7-8.) Plaintiff filed a 17 retaliation claim against Heberling with Internal Affairs and sent a copy to Akin prior to Akin 18 adjudicating the charge against Plaintiff. (Id., at p. 7.) As a result, Akin failed to provide 19 Plaintiff with written notice, or to let him present witnesses in his defense, and failed to document 20 Plaintiff's written defense statements which were subsequently "lost." (Id.) Despite all of the 21 evidence pointing to Plaintiff's cellmate possessing the weapon, Akin found Plaintiff guilty of 22 possession of a weapon and his cellmate not guilty. (Id.) This guilty finding was later dismissed 23 and ordered reheard. (Id.) These allegations state a cognizable retaliation claim against Lt. Akin. 24 In Claim 4, Plaintiff alleges that Pallares conducted the new hearing on the RVR against 25 him for possession of a weapon. (Id., at pp. 9-11.) Plaintiff alleges that approximately five 26 minutes into the new hearing, a captain entered and Plaintiff was asked to leave. (Id., at p. 10.) 27 When Plaintiff returned 5-10 minutes later, Pallares' demeanor had changed and he failed to 28 acknowledge Plaintiff's witnesses and denied all of Plaintiff's efforts to present evidence in his 4 1 defense. (Id.) Pallares failed to provide Plaintiff notification of the use of a confidential 2 memorandum, denied three separate defense documents Plaintiff attempted to introduce without 3 any reason/explanation for doing so, and found Plaintiff guilty of possession of a weapon without 4 any supporting evidence when Plaintiff was innocent. (Id.) All of this occurred within seven 5 months of Plaintiff filing the 602 against Heberling and/or her staff regarding a lack of sealing 6 outgoing mail. (Id.) Prior to this seven month period, Plaintiff had never received an RVR or 7 "threat" of any kind in 21 years. (Id.) This states a cognizable retaliation claim against Lt. 8 Pallares. 9 2. 10 a. 11 12 13 Due Process Disciplinary Hearings In Claim 6, Plaintiff asserts due process claims against Defendant Pallares (Doc. 33, pp. 12-15). The Due Process Clause protects prisoners from being deprived of liberty without due 14 process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a cause of action 15 for deprivation of due process, a plaintiff must first establish the existence of a liberty interest for 16 which the protection is sought. AStates may under certain circumstances create liberty interests 17 which are protected by the Due Process Clause.@ Sandin v. Conner, 515 U.S. 472, 483-84 (1995). 18 Liberty interests created by state law are generally limited to freedom from restraint which 19 Aimposes atypical and significant hardship on the inmate in relation to the ordinary incidents of 20 prison life.@ Id. 515 U.S. at 484. 21 APrison disciplinary proceedings are not part of a criminal prosecution, and the full 22 panoply of rights due a defendant in such proceedings does not apply.@ Wolff, 418 U.S. at 556. 23 With respect to prison disciplinary proceedings, the minimum procedural requirements that must 24 be met are: (1) written notice of the charges; (2) at least 24 hours between the time the prisoner 25 receives written notice and the time of the hearing, so that the prisoner may prepare his defense; 26 (3) a written statement by the fact finders of the evidence they rely on and reasons for taking 27 disciplinary action; (4) the right of the prisoner to call witnesses and present documentary 28 evidence in his defense, when permitting him to do so would not be unduly hazardous to 5 1 institutional safety or correctional goals; and (5) legal assistance to the prisoner where the 2 prisoner is illiterate or the issues presented are legally complex. Id. at 563-71. Confrontation and 3 cross examination are not generally required. Id. at 567. As long as the five minimum Wolff 4 requirements are met, due process has been satisfied. Walker v. Sumner, 14 F.3d 1415, 1420 (9th 5 Cir. 1994). 6 AWhen prison officials limit a prisoner=s right to defend himself they must have a 7 legitimate penological interest.@ Koenig v. Vannelli, 971 F.2d 422, 423 (9th Cir. 1992) (per 8 curiam) (concluding that prisoners do not have a right to have an independent drug test performed 9 at their own expense). The right to call witnesses may legitimately be limited by Athe penological 10 need to provide swift discipline in individual cases . . . [or] by the very real dangers in prison life 11 which may result from violence or intimidation directed at either other inmates or staff.@ Ponte v. 12 Real, 471 U.S. 491, 495 (1985); see also Mitchell v. Dupnik, 75 F.3d 517, 525 (9th Cir. 1996); 13 Koenig, 971 F.2d at 423; Zimmerlee v. Keeney, 831 F.2d 183, 187-88 (9th Cir. 1987)(per curiam). 14 A[T]he requirements of due process are satisfied if some evidence supports the decision by 15 the prison disciplinary board . . . .@ Hill, 472 U.S. at 455; see also Touissaint v. McCarthy, 926 16 F.2d 800, 802-03 (9th Cir. 1991); Bostic v. Carlson, 884 F.2d 1267, 1269-70 (9th Cir. 1989); 17 Jancsek, III v. Oregon Bd. of Parole, 833 F.2d 1389, 1390 (9th Cir. 1987); Cato v. Rushen, 824 18 F.2d 703, 705 (9th Cir. 1987); see especially Burnsworth v. Gunderson, 179 F.3d 771, 774-74 19 (9th Cir. 1999) (where there is no evidence of guilt may be unnecessary to demonstrate existence 20 of liberty interest.) The relevant inquiry is whether Athere is any evidence in the record that could 21 support the conclusion reached . . . @ as A[t]he Federal Constitution does not require evidence that 22 logically precludes any conclusion but the one reached by the disciplinary board.@ 23 57 (emphasis added). 24 Hill at 455- Plaintiff alleges that Pallares failed to provide Plaintiff written notice of evidence to be 25 used, denied three documents that Plaintiff wanted to submit in his defense, denied a written 26 request to present evidence that the anonymous note against Plaintiff was false, denied Plaintiff's 27 documented evidence provided by the Facility Captain that showed the anonymous note was not 28 reliable, did not provide a reasoned decision, purposely excised all exculpatory and mitigating 6 1 statements from his findings without any explanation, failed to provide advance notice to Plaintiff 2 that the confidential memorandum would be used against him for Plaintiff to formulate a 3 response, intentionally suppressed two confidential memorandums (one from the Investigating 4 Officer(s) and one from Plaintiff's cellmate) because of their exculpatory and exonerating 5 statements which showed that Plaintiff had no knowledge or control of the hidden weapon and 6 that another inmate who was attempting to set up Plaintiff's cellmate was the suspected author of 7 the anonymous note that was used against Plaintiff. (Doc. 33, at pp. 13-15.) Pallares found 8 Plaintiff guilty and caused Plaintiff to lose: 360 days of good time credits 1; medium custody 9 status; seniority work date; placement points; and 280 days of atypical hardship confinement in 10 Ad Seg which caused Plaintiff to be diagnosed with an anxiety disorder and sever pain from the 11 medication used to control his condition. (Id., at p. 15.) While in disciplinary Ad Seg, Plaintiff 12 was deprived of phone calls and contact visits with family and friends, daily showers, access to 13 the dayroom, choice of cell mate, spent twice as many hours confined to his cell as when he was 14 in the general population, and was never allowed to leave his cell without being handcuffed, 15 whereas, under normal conditions, as a GP inmate, he was never cuffed. (Id., at p. 13.) This 16 states a cognizable due process claim against Pallares. 17 b. 18 19 Inmate Appeals -- 602s In Claim 1, Plaintiff attempts to state a claim against Defendant Heberling for willfully failing to process Plaintiff's grievances ("602s") appeals. (Doc. 33, at pp. 3-4.) As stated in the prior screening order, A[a prison] grievance procedure is a procedural right 20 21 only, it does not confer any substantive right upon the inmates.@ Azeez v. DeRobertis, 568 F. 22 Supp. 8, 10 (N.D. Ill. 1982) accord Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993); see 23 also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no liberty interest in processing of 24 appeals because no entitlement to a specific grievance procedure); Massey v. Helman, 259 F.3d 25 641, 647 (7th Cir. 2001) (existence of grievance procedure confers no liberty interest on 26 prisoner); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). AHence, it does not give rise to a 27 1 28 Plaintiff is allowed to proceed on this claim at this time based on his past representation that he is serving a term of life without the possibility of parole. (See Docs. 7, 8, 9.) 7 1 protected liberty interest requiring the procedural protections envisioned by the Fourteenth 2 Amendment.@ Azeez v. DeRobertis, 568 F. Supp. at 10; Spencer v. Moore, 638 F. Supp. 315, 316 3 (E.D. Mo. 1986). 4 Actions in reviewing prisoner=s administrative appeal cannot serve as the basis for liability 5 under a ' 1983 action. Buckley, 997 F.2d at 495. The argument that anyone who knows about a 6 violation of the Constitution, and fails to cure it, has violated the Constitution himself is not 7 correct. AOnly persons who cause or participate in the violations are responsible. Ruling against 8 a prisoner on an administrative complaint does not cause or contribute to the violation.@ Greeno 9 v. Daley, 414 F.3d 645, 656-57 (7th Cir.2005) accord George v. Smith, 507 F.3d 605, 609-10 (7th 10 Cir. 2007); Reed v. McBride, 178 F.3d 849, 851-52 (7th Cir.1999); Vance v. Peters, 97 F.3d 987, 11 992-93 (7th Cir.1996). 12 In Claim 1, Plaintiff alleges that Sgt. Heberling destroyed and or made the 602 that he 13 filed regarding the sealing of outgoing mail disappear. (Doc. 33, at pp. 3-4.) Plaintiff alleges that 14 this denied him of his right to redress a government grievance, caused him financial injury and 15 interfered with his right to send correspondence. (Id.) 16 In Claim 7, Plaintiff alleges that Sgt. Heberling's retaliation against him was unreasonable 17 and violated his rights to due process. (Doc. 33, at pp. 15-16.) Plaintiff alleges that the situation 18 with his outgoing mail not being sealed violated his due process right to correspond with family 19 and friends and that he could not exhaust administrative remedies because of Heberling's 20 intentional misconduct which caused him to sustain a loss in postage stamps and hindered his 21 access to the courts. (Id.) 22 Thus, since he has neither a liberty interest, nor a substantive right in inmate appeals, 23 Plaintiff fails and is unable to state a cognizable claim against Defendant Heberling for the 24 processing and/or reviewing of his 602 inmate appeals. Both Claim 1 and Claim 7 are not 25 cognizable and should be dismissed. 26 27 28 3. Equal Protection In Claim 5, Plaintiff alleges that Defendants Pallares and Akin infringed on his right to equal protection by treating Plaintiff and his cellmate differently. (Doc. 33, at pp. 11-12.) 8 1 “To state a ' 1983 claim for violation of the Equal Protection Clause a plaintiff must show 2 that the defendants acted with an intent or purpose to discriminate against the plaintiff based upon 3 membership in a protected class.” Thornton v. City of St. Helens, 425 F.3d 1158, 1166-67 (9th 4 Cir. 2005) (citation and quotations omitted). “The first step in equal protection analysis is to 5 identify the [defendants’ asserted] classification of groups.” Id. (quoting Freeman v. City of 6 Santa Ana, 68 F.3d 1180, 1187 (9th Cir.1995)). The groups must be comprised of similarly 7 situated persons so that the factor motivating the alleged discrimination can be identified. Id. An 8 equal protection claim will not lie by “conflating all persons not injured into a preferred class 9 receiving better treatment” than the plaintiff. Id. (quoting Joyce v. Mavromatis, 783 F.2d 56, 57 10 (6th Cir.1986)). If the action in question does not involve a suspect classification, a plaintiff may 11 establish an equal protection claim by showing that similarly situated individuals were 12 intentionally treated differently without a rational relationship to a legitimate state purpose. 13 Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); San Antonio School District v. 14 Rodriguez, 411 U.S. 1 (1972); Squaw Valley Development Co. v. Goldberg, 375 F.3d 936, 944 15 (9th Cir.2004); Sea River Mar. Fin. Holdings, Inc. v. Mineta, 309 F.3d 662, 679 (9th Cir. 2002). 16 To state an equal protection claim under this theory, a plaintiff must allege that: (1) the plaintiff 17 is a member of an identifiable class; (2) the plaintiff was intentionally treated differently from 18 others similarly situated; and (3) there is no rational basis for the difference in treatment. Village 19 of Willowbrook, 528 U.S. at 564. 20 Further, to establish a violation of the Equal Protection Clause, the prisoner must present 21 evidence of discriminatory intent. See Washington v. Davis, 426 U.S. 229, 239-240 (1976); 22 Serrano v. Francis, 345 F.3d 1071, 1081-82 (9th Cir. 2003); Freeman v. Arpio, 125 F.3d 732, 23 737 (9th Cir. 1997). 24 Plaintiff's only allegations under this claim are that Akin and Pallares violated his rights to 25 equal protection since Plaintiff and his cell mate were received disparate treatment under the 26 RVR of possession of a weapon. Plaintiff fails to show any discriminatory animus motivated by 27 his membership in a protected class. The only animus apparent in Plaintiff's allegations is that of 28 a retaliatory motive which supports the claims found cognizable above. Thus, Plaintiff's Claim 5 9 1 for violation of his rights to equal protection against Defendants Palares and Akin should be 2 dismissed. 3 III. 4 CONCLUSION Plaintiff's Second Amended Complaint states the following cognizable claims: retaliation 5 in violation of the First Amendment against Defendants Sgt. Heberling (Claim 2), Lt. Akin 6 (Claim 3), and Lt. Pallares (Claim 4); and violation of his rights to due process against 7 Defendants Lt. Pallares (Claim 6). However, Claim 1 against Defendant Sgt. Heberling for the 8 processing of his inmate grievances, Claim 5 against Defendants Lt. Pallares and Lt. Akin for 9 violation of his rights to equal protection, and Claim 7 against Defendant Sgt. Heberling for 10 violation of his rights to due process based on the processing of his inmate grievances are not 11 cognizable and should be dismissed. 12 13 Accordingly, it is HEREBY RECOMMENDED: 1. 14 that Plaintiff be allowed to proceed on the following claims in the Second Amended Complaint: 15 a. Claim 2 against Defendants Sgt. Heberling for retaliation in violation 16 of the First Amendment; 17 b. Claim 3 against Defendant Lt. Akin for retaliation in violation of the 18 First Amendment; 19 c. Claim 4 against Defendant Lt. Pallares for retaliation in violation of 20 the First Amendment; and 21 d. Claim 6 against Defendant Lt. Pallares for violation of Plaintiff's 22 rights to due process; and 23 2. that the following claims be dismissed with prejudice: 24 a. Claim 1 against Defendant Sgt. Heberling for the processing of his 25 inmate grievances, 26 b. Claim 5 against Defendants Lt. Pallares and Lt. Akin for violation of 27 his rights to equal protection, and 28 c. Claim 7 against Defendant Sgt. Heberling for violation of his rights to 10 1 2 due process based on the processing of his inmate grievances. These Findings and Recommendations will be submitted to the United States District 3 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 30 4 days after being served with these Findings and Recommendations, Plaintiff may file written 5 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 6 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 7 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 8 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 9 10 11 IT IS SO ORDERED. Dated: August 26, 2015 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11
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