(PC) Kirk v Boyles, et al, No. 2:2009cv00686 - Document 16 (E.D. Cal. 2010)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kimberly J. Mueller on 07/08/10 ORDERING the Clerk to assign a district judge to this action and RECOMMENDING that dft's 13 Motion to Dismiss be denied. Objections to these F&Rs due w/i 45 days; CASE REASSIGNED to Judge Morrison C. England, Jr. and Magistrate Judge Kimberly J. Mueller; case number shall now read 2:09-cv-0686 MCE KJM P; referred to Judge Morrison C. England, Jr. (Benson, A.)
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(PC) Kirk v Boyles, et al Doc. 16 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 LARRY W. KIRK, 11 12 13 Plaintiff, No. CIV S-09-686 KJM P vs. MR. BOYLES, 14 ORDER AND Defendant. 15 FINDINGS AND RECOMMENDATIONS / 16 Plaintiff is a state prison inmate proceeding pro se with a civil rights action, which 17 challenges an occurrence at Sacramento County Jail, while he was a pre-trial detainee. 18 Defendant has filed a motion to dismiss for failure to state a claim. Plaintiff has opposed the 19 motion. 20 I. Standards For A Motion To Dismiss 21 Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to 22 dismiss for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). 23 In order to avoid dismissal for failure to state a claim a complaint must contain more than “naked 24 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 25 action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, 26 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 1 Dockets.Justia.com 1 statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a 2 claim upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 3 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 4 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. 5 at 1949. When considering whether a complaint states a claim upon which relief can be granted, 6 the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 94 (2007)(2007), 7 and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 8 U.S. 232, 236 (1974). 9 II. Analysis 10 In the complaint, plaintiff alleges he was called out of his cell and instructed to 11 report to “control.” There, defendant Boyles told plaintiff he was assigned to conduct a hearing 12 on a disciplinary write-up. Plaintiff said he had not been given notice of any rule violation report. 13 Boyles held the hearing anyway, after allowing plaintiff to read the copy of the write up. Boyles 14 found plaintiff guilty. Plaintiff was placed in disciplinary confinement for three days before the 15 guilty finding was reversed on appeal. 16 Defendant first argues that the complaint does not state a claim for any violation of 17 the grievance process. This is true; it does not. Plaintiff’s only reference to the grievance process 18 was that the guilty finding was reversed because of the grievance process. The court does not 19 construe plaintiff’s claim to raise any sort of allegation that the jail’s grievance process denied him 20 due process because such a claim is simply not encompassed within even a very liberal reading of 21 the complaint. 22 Defendant’s next argument appears to be that Sandin v. Connor, 515 U.S. 472 23 (1995) makes clear that plaintiff has no procedural due process claim concerning the timing or 24 nature of the hearing. In this respect, defendant is incorrect. 25 26 In Sandin, the Supreme Court held that when an action deprives an inmate of a state-created liberty interest in an “unexpected manner” and imposes “atypical and significant 2 1 hardship on the inmate in relation to the ordinary incidents of prison life,” a court must decide 2 whether the procedures used before the deprivation satisfied due process. The Court also 3 concluded that, for the most part, changes in an inmate’s custody level do not impose atypical and 4 significant hardship and so need not be accompanied by procedural due process protections. Id. 5 at 484. The Sandin court was careful to note that the interests of pretrial detainees are different 6 and, as it had held in Bell v. Wolfish, 441 U.S. 520 (1979), a pretrial detainee may not be 7 punished before a formal adjudication of guilt without due process protections. Sandin, 515 U.S. 8 at 484. Relying on this portion of Sandin and on Bell, the Ninth Circuit has held that pretrial 9 detainees have a liberty interest in not being punished without the procedural protections outlined 10 in Wolff v. McDonald, 418 U.S. 539 (1974), even in the wake of Sandin. Mitchell v. Dupnik, 75 11 F.3d 517, 524-25 (9th Cir. 1996). These procedures include “advance written notice of the 12 claimed violation,” which gives the inmate a “chance to marshal the facts in his defense. . . .” 13 Wolff, 418 U.S. at 563-64. Defendant has cited nothing suggesting that the requirement of 14 advance notice is met by showing a pretrial detainee, as plaintiff was at the relevant time, the rules 15 violation report just minutes before the hearing. 16 Defendant also suggests there is no due process claim because the three-day 17 disciplinary confinement is a de minimis injury. It is true that there is “a de minimis level of 18 imposition with which the Constitution is not concerned.” Bell, 441 U.S. at 539 n.21 (internal 19 quotation omitted). Defendant has cited no authority holding that three days of disciplinary 20 confinement for a pretrial detainee is “a de minimis level of imposition.” 21 III. Potential for Settlement 22 With his opposition to the motion to dismiss, plaintiff attached copies of 23 correspondence indicating the parties engaged in some written communications regarding 24 potential settlement of the case, prior to defendant’s retention of counsel. The court has not 25 relied on the contents of those communications in recommending a resolution of defendant’s 26 motion to dismiss. Fed. R. Evid. 408. 3 1 The court independently, however, has determined that this case is appropriate for 2 referral to the court’s mediation program for prisoner civil rights cases. By separate order, this 3 case will be set for mediation with plaintiff appearing by video. The time for the parties to file 4 objections to the foregoing findings and recommendations will be extended to allow for the 5 mediation to be concluded before any objections need be filed. 6 7 IT IS HEREBY ORDERED that the Clerk of the Court assign a district judge to this action. 8 9 IT IS HEREBY RECOMMENDED that defendant’s motion to dismiss (docket no. 13) be denied. 10 These findings and recommendations are submitted to the United States District 11 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within forty-five 12 days after being served with these findings and recommendations, any party may file written 13 objections with the court and serve a copy on all parties. Such a document should be captioned 14 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 15 shall be served and filed within fourteen days after service of the objections. The parties are 16 advised that failure to file objections within the specified time may waive the right to appeal the 17 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 18 DATED: July 8, 2010. 19 20 21 22 23 24 25 2 26 kirk0686.57 4
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