(PC) Campbell v. Dickey, No. 1:2014cv00918 - Document 45 (E.D. Cal. 2018)
Court Description: FINDINGS and RECOMMENDATIONS Recommending Denying Defendant's 40 Motion to Dismiss; Fourteen (14) Day Objection Deadline signed by Magistrate Judge Barbara A. McAuliffe on 8/9/2018. Referred to Judge Dale A. Drozd. (Sant Agata, S)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY TYRONE CAMPBELL, SR., Plaintiff, 12 v. 13 14 P. DICKEY, FINDINGS AND RECOMMENDATIONS RECOMMENDING DENYING DEFENDANT’S MOTION TO DISMISS (Doc. No. 40) Defendant. 15 Case No. 1:14-cv-00918-DAD-BAM (PC) FOURTEEN (14) DAY DEADLINE 16 17 18 I. Introduction Plaintiff Anthony Tyrone Campbell, Sr., is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action currently proceeds 20 on Plaintiff’s equal protection claim against Defendant P. Dickey. Plaintiff claims that Defendant 21 Dickey racially-profiled him because his ethnicity is Black, and therefore automatically assumed 22 that he would be compatible with a cellmate who was a member of a prison gang, although 23 Plaintiff is not gang-affiliated. Plaintiff further alleges that Defendant disciplined him for failing 24 to accept the gang-affiliated cellmate despite a risk to his safety. 25 Currently before the Court is Defendant’s motion to dismiss, filed on October 9, 2017. 26 (Doc. No. 40.) Plaintiff filed an opposition, on extension, on November 29, 2017. (Doc. No. 42.) 27 Defendant filed a reply on December 5, 2017. (Doc. No. 43). The motion is deemed submitted. 28 Local Rule 230(l). 1 1 II. 2 Background This case has a lengthy procedural history, which the Court will briefly summarize. This 3 action was initiated when Plaintiff filed a complaint on June 16, 2014. (Doc. No. 1.) Plaintiff 4 sought to amend his complaint before it was screened, and leave was granted. (Doc. No. 8.) On 5 July 24, 2014, Plaintiff filed a first amended complaint. (Doc. No. 9.) On July 20, 2015, Plaintiff’s first amended complaint was found not to state any 6 7 cognizable claim, and leave to amend was granted. (Doc. No. 12.) On August 17, 2015, Plaintiff 8 filed a second amended complaint. (Doc. No. 14.) On August 3, 2016, the Court dismissed Plaintiff’s action for failing to state a claim upon 9 10 which relief may be granted. (Doc. No. 18.) Judgment was entered that same day. (Doc. No. 11 19.) Plaintiff appealed. (Doc. No. 20.) 12 On March 17, 2017, the Ninth Circuit affirmed in part, reversed in part, and remanded this 13 action. (Doc. No. 26.) The Ninth Circuit found that all claims had been properly dismissed 14 except for Plaintiff’s equal protection claim against Defendant Dickey. The Ninth Circuit held 15 that such dismissal was premature because “the allegation that Dickey assigned Campbell to a 16 cell with a gang-affiliated inmate based on Campbell’s race, liberally construed, is ‘sufficient to 17 warrant ordering [defendant] to file an answer.’” (Id. at 2) (quoting Wilhelm v. Rotman, 680 F.3d 18 1113, 1116 (9th Cir. 2012)). See also Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003) 19 (plaintiff need only allege that defendant acted at least in part based on a plaintiff’s protected 20 status). The Ninth Circuit issued its mandate on April 10, 2017. 21 On May 10, 2017, the Court ordered the United States Marshal to serve the summons and 22 second amended complaint on Defendant Dickey. (Doc. No. 28.) Various issues arose regarding 23 service, and finally on September 9, 2017, a waiver of service was returned executed. (Doc. No. 24 39.) 25 Following the return of the waiver of service, the instant motion to dismiss was filed. 26 (Doc. No. 40.) 27 /// 28 /// 2 1 III. Discussion 2 A. Parties’ Arguments 3 Defendant first argues that Plaintiff’s claim is barred by the favorable termination rule of 4 Heck v. Humphrey, 512 U.S. 477 (1994). Specifically, Plaintiff attached an appeal response to his 5 complaint which shows that he pleaded guilty to a charge of refusing to accept assigned housing, 6 and was assessed 90-days forfeiture of credits and 90-days loss of privileges as a result. As 7 Plaintiff has not shown the decision was reversed or expunged, Defendant argues that the claim in 8 this action is precluded. Defendant next argues that Plaintiff has failed to sufficiently plead a 9 cognizable claim under the Equal Protection Clause. Defendant further argues that Plaintiff has 10 insufficiently pleaded facts showing a constitutionally-protected injury. Finally, Defendant 11 argues that he is entitled to qualified immunity. 12 Plaintiff disagrees that the Heck bar applies in this case, although he has not gained a 13 favorable outcome through a state habeas corpus proceeding on his conviction. Plaintiff further 14 argues that he has sufficiently stated an Equal Protection Clause claim on the basis of racial 15 discrimination, and has sufficiently pleaded an injury. Finally, Plaintiff opposes any grant of 16 qualified immunity here, as he has alleged that his Equal Protection rights were violated. 17 In reply, Defendant argues that Plaintiff claim is barred based on his admission that he has 18 not had a favorable state habeas corpus proceeding, or otherwise shown that his conviction 19 connected to this claim was reversed. Defendant further argues that Plaintiff has not pleaded 20 facts showing intentional discrimination due to race, but rather relies on protection for being a 21 non-affiliated inmate, which does not state a cognizable Equal Protection claim. Finally, 22 Defendant argues that Plaintiff identified no precedent demonstrating that Defendant violated a 23 constitutionally-protected right here, and therefore qualified immunity applies. 24 B. Legal Standards 25 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a claim, and 26 dismissal is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts 27 alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 1240, 1241–42 28 (9th Cir. 2011) (quotation marks and citations omitted). To survive a motion to dismiss, a 3 1 complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible 2 on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 3 550 U.S. 544, 555 (2007)) (quotation marks omitted); Conservation Force, 646 F.3d at 1242; 4 Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The Court must accept the well- 5 pled factual allegations as true and draw all reasonable inferences in favor of the non-moving 6 party. Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010); Sanders v. Brown, 7 504 F.3d 903, 910 (9th Cir. 2007); Huynh v. Chase Manhattan Bank, 465 F.3d 992, 996–97 (9th 8 Cir. 2006); Morales v. City of L.A., 214 F.3d 1151, 1153 (9th Cir. 2000). Further, prisoners 9 proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and 10 to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) 11 (citations omitted). 12 C. Analysis 13 1. Heck v. Humphrey 14 The Court first addresses Defendant’s argument that Plaintiff’s claim is barred by Heck v. 15 Humphrey, 512 U.S. 477 (1994). It has long been established that state prisoners cannot 16 challenge the fact or duration of their confinement in a section 1983 action and their sole remedy 17 lies in habeas corpus relief. Wilkinson v. Dotson, 544 U.S. 74, 78 (2005). Often referred to as the 18 favorable termination rule or the Heck bar, this exception to section 1983’s otherwise broad scope 19 applies whenever state prisoners “seek to invalidate the duration of their confinement-either 20 directly through an injunction compelling speedier release or indirectly through a judicial 21 determination that necessarily implies the unlawfulness of the State’s custody.” Wilkinson, 544 22 U.S. at 81; Heck, 512 U.S. at 482, 486–487; Edwards v. Balisok, 520 U.S. 641, 644 (1997). Thus, 23 “a state prisoner’s [section] 1983 action is barred (absent prior invalidation)-no matter the relief 24 sought (damages or equitable relief), no matter the target of the prisoner’s suit (state conduct 25 leading to conviction or internal prison proceedings)-if success in that action would necessarily 26 demonstrate the invalidity of confinement or its duration.” Wilkinson, 544 U.S. at 81–82. 27 However, “challenges to disciplinary proceedings are barred by Heck only if the § 1983 28 action would be seeking a judgment at odds with [the prisoner’s] conviction or with the State’s 4 1 calculation of time to be served.” Nettles v. Grounds, 830 F.3d 922, 928–29 (9th Cir. 2016) (en 2 banc) (citing Muhammad v. Close, 540 U.S. 749, 754–55 (2004)). “If the invalidity of the 3 disciplinary proceedings, and therefore the restoration of good-time credits, would not necessarily 4 affect the length of time to be served, then the claim falls outside the core of habeas and may be 5 brought in § 1983.” Nettles, 830 F.3d at 929; see also Pratt v. Hedrick, No. C 13–4557 SI (pr), 6 2015 WL 3880383, at *3 (N.D. Cal. June 23, 2015) (section 1983 challenge to disciplinary 7 conviction not Heck-barred where “the removal of the rule violation report or the restoration of 8 time credits” would not necessarily result in a speedier release for inmate with indeterminate life 9 sentence and no parole date). 10 Here, Plaintiff attached to his second amended complaint a Second Level Appeal 11 Response, dated December 24, 2013. (Second Am. Compl., Doc. No. 14, Ex. A.) The Response 12 discusses a Rules Violation Report (“RVR”) charging Plaintiff with Willfully Obstructing a Peace 13 Officer in the Performance of Duty: Refusal to Accept Assigned Housing. (Id. at 12.) Plaintiff 14 was found guilty of that charge, and he appealed the conviction, seeking for it to be reversed, 15 remanded, and dismissed. Plaintiff had been assessed 90 days forfeiture of credits and 90 days 16 loss of privileges. The Response states that Plaintiff’s appeal was denied at the second level. (Id. 17 at 13.) Plaintiff also admits that his appeal was subsequently denied at the third and final level of 18 review. (Id. at 9.) 19 Defendant argues that the Response gives the Court enough information to determine that 20 Plaintiff’s claim is barred by Heck in this case. The Court finds that it is not clear that Plaintiff’s 21 conviction for refusing to accept assigned housing via prison disciplinary proceedings and his 22 resultant loss of 90 days of credits would necessarily affect the length of time he must serve in 23 custody. See Nettles, 830 F.3d at 929 n.4. Although the Court has some information on the 24 assessed credits and some information that he unsuccessfully appealed the matter, the Court does 25 not have any information before it regarding the nature of Plaintiff’s sentence, e.g., whether he is 26 serving a determinate or indeterminate sentence, or whether his initial eligibility for parole has 27 already passed. See Wilkerson, 772 F.3d at 840 (Heck does not bar a § 1983 claim that will have 28 no impact on a prisoner’s conviction or the duration of his or her sentence); see also Delgado v. 5 1 Gonzalez, 686 F. App’x 434, 434-35 (9th Cir. 2017) (vacating district court’s dismissal of 2 inmate’s § 1983 complaint alleging a retaliation claim in connection with an allegedly false RVR, 3 because the record did not make clear whether the prisoner’s loss of sixty days good-time credit 4 would necessarily affect the length of time served). Without such information, the Court cannot 5 determine whether a Heck bar applies to Plaintiff’s claim. 6 Further, Plaintiff seeks to challenge the assignment of a cellmate based upon an 7 impermissible racial basis. This challenge is not inconsistent with Heck. Plaintiff agrees he 8 refused to accept the cellmate. 9 Based on the foregoing, at this stage, the Court finds that Defendant has failed to 10 demonstrate that success on Plaintiff’s claim here will necessarily affect the duration of Plaintiff’s 11 confinement, even if it may undermine the RVR conviction. For that reason, the Court finds that 12 the motion to dismiss should not be granted on Heck grounds, and turns to Defendant’s next 13 argument. 14 2. 15 Defendant next argues that Plaintiff has failed to allege sufficient facts to state a claim 16 17 Failure to State a Cognizable Claim under the Equal Protection Clause. “The Equal Protection Clause of the Fourteenth Amendment commands that no State shall 18 ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a 19 direction that all persons similarly situated should be treated alike.” Serrano v. Francis, 345 F.3d 20 1071, 1081 (9th Cir. 2003) (quoting City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 21 432, 439 (1985)). “Prisoners are protected under the Equal Protection Clause . . . from invidious 22 discrimination based on race.” Id. at 1081-82 (quoting Wolff v. McDonnell, 418 U.S. 539, 556, 23 (1974)). “To state a claim for violation of the Equal Protection Clause, a plaintiff must show that 24 the defendant acted with an intent or purpose to discriminate against him based upon his 25 membership in a protected class.” Id. at 1082 (citing Barren v. Harrington, 152 F.3d 1193, 1194 26 (9th Cir. 1998)). “Intentional discrimination means that a defendant acted at least in part because 27 of a plaintiff’s protected status.” Id. (quoting Maynard v. City of San Jose, 37 F.3d 1396, 1404 28 (9th Cir.1994) (emphasis in original)). 6 1 In this case, Plaintiff alleges that Defendant “racially profiled” him when ordering him to 2 cell with a gang-affiliated inmate. (Second Am. Compl. 5.) Plaintiff further alleges that this was 3 evident when Defendant asked aloud whether Plaintiff was “a crip or a blood,” and that when 4 Plaintiff denied any such gang-affiliation, Defendant replied that “it’s gonna have to be one or the 5 other….” (Id. at 6.) Plaintiff again stated that he was non-affiliated, and stated that he would 6 refuse any unreasonable order to “enforce gang ties and association upon [him].” (Id.) Plaintiff 7 refused to cell with the gang-affiliated inmate, and alleges that when Defendant prepared 8 Plaintiff’s RVR for refusing to accept the assigned housing, Defendant wrote that Plaintiff’s 9 “ethnicity is black . . . and there is no reason to believe the two are incompatible,” referring to 10 Plaintiff and the gang-affiliated, black inmate. (Id. at 6-7.) Plaintiff previously submitted the 11 RVR in support of these allegations. (First Am. Compl., Doc. No. 9, Ex. A.) Finally, Plaintiff 12 alleged that Defendant’s conduct showed that Defendant’s “discriminatory intent is at a least part 13 of reason why prison guard racially profiled Plaintiff as being compatible with a gang member.” 14 (Second Am. Compl. 7 (errors in original).) Liberally construed, the Ninth Circuit has found 15 these allegations were sufficient to state an Equal Protection claim because Plaintiff was ordered 16 to accept a gang-affiliated cellmate at least in part due to racial discrimination. 17 Defendant argues that Plaintiff has not pleaded any facts to show that he was treated 18 differently than a similarly-situated inmate, or that Defendant acted pursuant to any race-based 19 policy or practice. However, these are not the only methods by which a plaintiff may state an 20 Equal Protection claim. Violations of equal protection are shown when a respondent intentionally 21 discriminates against a petitioner based on membership in a protected class, Lee v. City of Los 22 Angeles, 250 F.3d 668, 686 (9th Cir. 2001), or when a respondent intentionally treats a member of 23 an identifiable class differently from other similarly situated individuals without a rational basis, 24 or a rational relationship to a legitimate state purpose, for the difference in treatment, Village of 25 Willowbrook v. Olech, 528 U.S. 562, 564 (2000); Engquist v. Oregon Department of Agriculture, 26 553 U.S. 591, 601–02 (2008). Here, Plaintiff was found to state a claim based upon direct 27 evidence of intentional discrimination against him based on his protected class, as shown by 28 Defendants’ alleged statements regarding Plaintiff’s race or ethnicity with respect to his housing 7 1 assignment. Plaintiff is not required to allege additional allegations of disparate treatment or a 2 policy or practice where he has sufficiently alleged intentional discrimination. 3 Defendant also argues that the RVR statement that Plaintiff and other inmate were black, 4 and that there was no reason to believe they were incompatible, does not necessarily suggest 5 racial discrimination. Defendant argues that the statement could be interpreted to mean that 6 various factors were evaluated to find that Plaintiff and the other inmate were compatible for the 7 cell assignment. However, at this stage, the Court must assess the allegations in the light most 8 favorable to Plaintiff, not construe them in Defendant’s favor. As noted above, the allegations 9 regarding the RVR language, when considered with Plaintiff’s other allegations regarding 10 Defendant’s conduct and when construed in Plaintiff’s favor, were found by the Ninth Circuit to 11 be sufficient to show that Defendant acted at least in part based on racial discrimination. 12 Defendant also argues that Plaintiff has not sufficiently alleged any constitutional injury 13 here, because he only alleges that Defendant disciplined him for refusing to accept the housing 14 assignment. Defendant further argues that Plaintiff has failed to allege that Defendant had any 15 responsibility for his housing assignment. “[R]acial segregation, which is unconstitutional 16 outside prisons, is unconstitutional within prisons, save for ‘the necessities of prison security and 17 discipline.’” Cruz v. Beto, 405 U.S. 319, 321 (1972) (per curiam) (quoting Lee v. Washington, 18 390 U.S. 333, 334 (1968)). It is well-established that “[p]risoners are protected under the Equal 19 Protection Clause of the Fourteenth Amendment for invidious discrimination based on race.” 20 Johnson v. California, 207 F.3d 650, 655 (9th Cir. 2000) (quoting Wolff, 418 U.S. at 556). 21 Defendant’s argument construes Plaintiff’s allegations as merely complaining that he was 22 disciplined for refusing his housing assignment. But as discussed above, Plaintiff has alleged that 23 Defendant ordered him to accept housing with a gang-affiliated inmate in part due to racial 24 discrimination. Further, rather than the housing assignment being done as a security concern, 25 Plaintiff alleges that Defendant was indifferent to the issue of gang-affiliation. The injury in this 26 case is Plaintiff’s allegation that he was subject to intentional discrimination; that is, the denial of 27 fair and equal treatment regarding Plaintiff’s housing assignment because of racial discrimination 28 is his injury. See Braunstein v. Arizona Dep’t of Transp., 683 F.3d 1177, 1185 (9th Cir. 2012) 8 1 (those who are personally denied equal treatment based on race have a cognizable injury under 2 Article III). 3 Based on the foregoing, the Court finds that Plaintiff has sufficiently pleaded a cognizable 4 Equal Protection claim. Therefore, the Court turns to Defendant’s arguments regarding qualified 5 immunity. 6 3. 7 Finally, Defendant argues that Plaintiff fails to sufficiently allege that Defendant violated 8 Qualified Immunity his constitutional rights, and therefore qualified immunity protects Defendant here. 9 Government officials enjoy qualified immunity from civil damages unless their conduct 10 violates clearly established statutory or constitutional rights. Jeffers v. Gomez, 267 F.3d 895, 910 11 (9th Cir. 2001) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When a court is 12 presented with a qualified immunity defense, the central questions for the court are: (1) whether 13 the facts alleged, taken in the light most favorable to the plaintiff, demonstrate that the 14 defendant’s conduct violated a statutory or constitutional right; and (2) whether the right at issue 15 was “clearly established.” Saucier v. Katz, 533 U.S. 194, 201 (2001); see also Pearson v. 16 Callahan, 555 U.S. 223 (2009) (the two factors set out in Saucier need not be considered in 17 sequence). “Qualified immunity gives government officials breathing room to make reasonable 18 but mistaken judgments about open legal questions.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 19 (2011). 20 “For the second step in the qualified immunity analysis−whether the constitutional right 21 was clearly established at the time of the conduct−the critical question is whether the contours of 22 the right were ‘sufficiently clear’ that every ‘reasonable official would have understood that what 23 he is doing violates that right.’” Mattos v. Agarano, 661 F.3d 433, 442 (9th Cir. 2011) (quoting 24 al−Kidd, 563 U.S. at 741) (some internal marks omitted). “The plaintiff bears the burden to show 25 that the contours of the right were clearly established.” Clairmont v. Sound Mental Health, 632 26 F.3d 1091, 1109 (9th Cir. 2011). “[W]hether the law was clearly established must be undertaken 27 in light of the specific context of the case, not as a broad general proposition.” Estate of Ford v. 28 Ramirez-Palmer, 301 F.3d 1043, 1050 (9th Cir. 2002) (citation and internal marks omitted). 9 1 In making this determination, courts consider the state of the law at the time of the alleged 2 violation and the information possessed by the official to determine whether a reasonable official 3 in a particular factual situation should have been on notice that his or her conduct was illegal. 4 Inouye v. Kemna, 504 F.3d 705, 712 (9th Cir. 2007); see also Hope v. Pelzer, 536 U.S. 730, 741 5 (2002) (the “salient question” to the qualified immunity analysis is whether the state of the law at 6 the time gave “fair warning” to the officials that their conduct was unconstitutional). An 7 official’s subjective beliefs are irrelevant. Inouye, 504 F.3d at 712. 8 Defendant argues that no reasonable officer would have known that he could not 9 discipline a prisoner for refusing to comply with a direct order to accept a housing assignment. 10 Further, he argues that Plaintiff cites no precedent that that a correctional officer violates an 11 inmate’s constitutional rights when imposing justified discipline, and therefore, Defendant is 12 entitled to qualified immunity. 13 Viewed in the light most favorable to Plaintiff, he has alleged that Defendant ordered him 14 to accept a gang-affiliated cellmate in part due to racial discrimination. As explained above, the 15 Ninth Circuit found that Plaintiff’s allegations were sufficient to show that Defendant violated 16 Plaintiff’s constitutional rights. Further, as to the second step in the qualified immunity analysis, 17 it has been long-established that racial discrimination in prison housing violates the Equal 18 Protection Clause of the Fourteenth Amendment. See Wolff, 418 U.S. at 556 (citing Lee, 390 U.S. 19 at 333); Cruz, 405 U.S. at 321; Johnson, 207 F.3d at 655. Therefore, at this stage, the Court 20 cannot find that Defendant is entitled to qualified immunity here. 21 IV. 22 23 24 Conclusion and Recommendation For the reasons explained above, IT IS HEREBY RECOMMENDED that Defendant’s motion to dismiss (Doc. No. 40) be DENIED. These Findings and Recommendations will be submitted to the United States District 25 Judge assigned to the case, under 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being 26 served with these Findings and Recommendations, the parties may file written objections with the 27 Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 28 Recommendations.” 10 1 The parties are advised that failure to file objections within the specified time may result 2 in the waiver of the “right to challenge the magistrate’s factual findings” on appeal. Wilkerson v. 3 Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th 4 Cir. 1991)). 5 6 7 8 IT IS SO ORDERED. Dated: /s/ Barbara August 9, 2018 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11
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