(PC) Brown v. Martinez, et al., No. 2:2013cv02369 - Document 40 (E.D. Cal. 2015)
Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 8/7/2015 DIRECTNG the Clerk to randomly assign a US District Judge to this action; AND RECOMMENDING that defendant Martinez's 18 motion to dismiss be granted; and defendant Martinez be dismissed from this action. Assigned and referred to Judge Garland E. Burrell, Jr.; Objections due within 14 days. (Yin, K)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANERAE V. BROWN, 12 Plaintiff, 13 14 No. 2:13-cv-2369 DAD P v. ORDER AND P. MARTINEZ et al., 15 FINDINGS AND RECOMMENDATIONS Defendants. 16 Plaintiff is a state prisoner proceeding pro se with a civil rights action seeking relief under 17 18 42 U.S.C. § 1983. This matter is before the court on a motion to dismiss brought on behalf of 19 defendant Martinez. Plaintiff has filed an opposition to the motion, and defendant has filed a 20 reply. Plaintiff has also filed an unauthorized response to defendant’s reply, which this court – in 21 the interest of justice – has reviewed and considered. For the reasons discussed below, the undersigned finds that plaintiff’s complaint fails to 22 23 state a cognizable claim for relief against defendant Martinez. Accordingly, the undersigned will 24 recommend that defendant Martinez’s motion to dismiss be granted, and defendant Martinez be 25 dismissed from this action. 26 ///// 27 ///// 28 ///// 1 1 BACKGROUND 2 Plaintiff is proceeding on his original complaint against defendants Martinez, Harkness, 3 Fish, Angulo, Kirch, Plainer, Perez, and Foulk.1 In his complaint, plaintiff alleges that in July 4 2011, defendant Martinez openly displayed an interest in plaintiff and his cellmate inmate 5 O’Reilly. According to plaintiff, he is a “public interest case inmate” because he is a former 6 recording artist known as “X-Raided.” Plaintiff alleges that defendant Martinez attempted to 7 establish familiarity with him and inmate O’Reilly and eventually developed an inappropriate on- 8 again off-again relationship of a sexual nature with inmate O’Reilly. (Compl. at 3 & 5.) Plaintiff alleges that he introduced inmate O’Reilly to a female associate of his, and the 9 10 two began corresponding. According to plaintiff, defendant Martinez became jealous and 11 approached Investigative Services Unit (“ISU”) Officer Wheeler and told him that inmate 12 O’Reilly implied that he would pay her $12,000.00 to smuggle two iphones into the institution – 13 one for him and one for plaintiff. ISU Officer Wheeler met with ISU Officer defendant Harkness, 14 at which time they opened an investigation and devised a plan to intercept the money and 15 contraband phones before they entered the institution. (Compl. at 5-6.) 16 On January 27, 2012, defendant Harkness completed his investigation into the matter. 17 ISU staff escorted plaintiff and inmate O’Reilly to the program office, read them their Miranda 18 rights, and placed them in administrative segregation. On February 8, 2012, defendant Fish 19 issued plaintiff a Rules Violation Report (“RVR”), authored by defendant Harkness, charging 20 plaintiff with the prison disciplinary offense of “Conspiracy to Bribe a Peace Officer.” Plaintiff 21 alleges that the report falsely stated that he wanted defendant Martinez to bring him two iphones 22 with attachable microphones. (Compl. at 15-18, Ex. A(3).) 23 24 On March 2, 2012, plaintiff appeared before Senior Hearing Officer defendant Angulo. Plaintiff requested defendant Martinez appear as a witness at the hearing, but defendant Fish told 25 1 26 27 28 Defendants Harkness, Fish, Kirch, Plainer, Perez, and Foulk are represented by separate counsel in this action. Defendant Angulo is also represented by separate counsel. Counsel for defendants Harkness, Fish, Kirch, Plainer, Perez, and Foulk and counsel for defendant Angulo have filed separate motions to dismiss on behalf of their clients. The court will address all three pending motions to dismiss in this action in separate findings and recommendations. 2 1 defendant Angulo that plaintiff had rescinded that request. Plaintiff said that he had done no such 2 thing, but defendant Angulo explained that defendant Martinez was not available and her absence 3 would not prejudice the hearing in any event. Plaintiff also attempted to give defendant Angulo a 4 written statement, but she refused it and purportedly told plaintiff “It doesn’t matter. I’m going to 5 find you guilty anyway.” (Compl. at 23-24, Ex. D.) 6 Prison officials found both plaintiff and inmate O’Reilly guilty of the conspiracy charge. 7 On March 21, 2012, defendant Perez ordered inmate O’Reilly’s RVR reissued and reheard 8 because defendant Angulo had stipulated to witness testimony that was inconsistent with the 9 witness’s incident report. Defendant Kirch and defendant Plainer reviewed plaintiff’s RVR and 10 upheld plaintiff’s guilty finding. On April 12, 2012, plaintiff received a six-month SHU term. 11 Plaintiff administratively appealed his guilty finding and pointed to defendant Perez’s memo to 12 defendant Kirch ordering a reissuing and rehearing of inmate O’Reilly’s RVR. In plaintiff’s 13 view, the only difference between him and inmate O’Reilly was their skin color and plaintiff’s 14 status as a recording artist. On May 24, 2012, defendant Foulk denied plaintiff’s inmate appeal at 15 the second level of review. On September 24, 2012, prison officials granted plaintiff relief at the 16 third level of review and ordered his RVR reissued and reheard. On November 20, 2012, Senior 17 Hearing Officer Sisson found plaintiff not guilty of the disciplinary violation and dismissed the 18 RVR. Ultimately, plaintiff served two months in the SHU. (Compl. at 24-31, Exs. E-I, L, N.) 19 On May 23, 2012, Steven Leese, a Special Agent from Internal Affairs, interviewed 20 plaintiff and stated he was investigating allegations of staff misconduct against defendant 21 Martinez. Plaintiff explained the entire course of events that had taken place with respect to his 22 RVR. Special Agent Leese informed him that both Internal Affairs and the Office of the 23 Inspector General were investigating defendant Martinez. According to plaintiff, as a result of 24 that investigation, the California Department of Corrections and Rehabilitation no longer employs 25 defendant Martinez. (Compl. at 31.) 26 At screening, the court found that liberally construed plaintiff’s complaint appeared to 27 state a cognizable claim against defendants under the Fourteenth Amendment Due Process Clause 28 and Equal Protection Clause. (Doc. No. 12) 3 1 2 ANALYSIS I. Motion Pursuant to Rule 12(b)(6) 3 A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure 4 tests the sufficiency of the complaint. North Star Int’l v. Arizona Corp. Comm’n, 720 F.2d 578, 5 581 (9th Cir. 1983). Dismissal of the complaint, or any claim within it, “can be based on the lack 6 of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal 7 theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). See also 8 Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). In order to survive 9 dismissal for failure to state a claim a complaint must contain more than “a formulaic recitation of 10 the elements of a cause of action;” it must contain factual allegations sufficient “to raise a right to 11 relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 12 In determining whether a pleading states a claim, the court accepts as true all material 13 allegations in the complaint and construes those allegations, as well as the reasonable inferences 14 that can be drawn from them, in the light most favorable to the plaintiff. Hishon v. King & 15 Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738, 740 16 (1976); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In the context of a motion to 17 dismiss, the court also resolves doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 18 411, 421 (1969). However, the court need not accept as true conclusory allegations, unreasonable 19 inferences, or unwarranted deductions of fact. W. Mining Council v. Watt, 643 F.2d 618, 624 20 (9th Cir. 1981). 21 In general, pro se pleadings are held to a less stringent standard than those drafted by 22 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). The court has an obligation to construe 23 such pleadings liberally. Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). 24 However, the court’s liberal interpretation of a pro se complaint may not supply essential 25 elements of the claim that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 26 266, 268 (9th Cir. 1982); see also Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992). 27 ///// 28 ///// 4 1 2 II. Discussion In the pending motion to dismiss, counsel for defendant Martinez argues that plaintiff has 3 failed to plead sufficient facts to state a cognizable claim for relief under the Fourteenth 4 Amendment Due Process Clause or Equal Protection Clause. (Def.’s Mot. to Dismiss (Doc. No. 5 18) at 8-13.) Upon further review of plaintiff’s complaint, and for the reasons set forth below, the 6 court finds that argument to be persuasive. 7 As to plaintiff’s due process claim against defendant Martinez, courts in the Ninth Circuit 8 have consistently held that submission of false disciplinary reports against a prisoner does not 9 implicate a liberty interest and therefore, does not rise to the level of a constitutional violation 10 under the Fourteenth Amendment. See, e.g., Willis v. Beard, No. 2:14-cv-0573 AC P, 2015 WL 11 2095296 at *2 n.1 (E.D. Cal. May 5, 2015) (“Plaintiff’s allegation that a false report was 12 submitted against him does not implicate any protected liberty interest.”); Dorava v. Gonzalez, 13 No. EDCV 13-2282 AB(JC), 2015 WL 1757147 at *7 (C.D. Cal. Apr. 16, 2015) (“plaintiff’s 14 allegations that defendants . . . wrote a ‘false’ RVR . . .do not plausibly state a constitutional 15 violation.”); Morales v. Sherwood, No. 1:13-cv-01582 AWI GSA PC, 2015 WL 1821128 at *7 16 (E.D. Cal. Apr. 15, 2015) (“The falsification of a disciplinary report does not state a standalone 17 constitutional claim.”); Monroe v. Heinlen, No. CV 14-03202 SJO (DFM), 2014 WL 2931172 at 18 *5 (C.D. Cal. June 27, 2014) (“to the extent Plaintiff seeks to allege a violation of his due process 19 rights on the basis of a falsified RVR, such allegations do not state a claim.”); Shallowhorn v. 20 Gonzalez, No. 1:11-cv-00305 GBC (PC), 2012 WL 1551342 at *3 (E.D. Cal. Apr. 30, 2012) 21 (dismissing with prejudice plaintiff’s due process claim to the extent that he attempted to allege a 22 liberty interest regarding submission of false reports against him), aff’d 514 Fed. Appx. 660, 2013 23 WL 1189422 (9th Cir. Mar. 25, 2013); Draper v. Rosario, No. CIV S-10-0032 KJM EFB P, 2012 24 WL 787576 at *4 (E.D. Cal. Mar. 9, 2012) (recommending dismissal of a due process claim 25 based on defendant’s allegedly false report, which led to plaintiff being found guilty and having 26 to serve a seven-month term in the SHU), adopted by 2012 WL 1130683 (E.D. Cal. Mar. 30, 27 2012); Muhammad v. Rubia, No. C 08-3209 JSW (PR), 2010 WL 1260425 at *3 (N.D. Cal. Mar. 28 29, 2010) (“a prisoner has no constitutionally guaranteed immunity from being falsely or wrongly 5 1 accused of conduct which may result in the deprivation of a protected liberty interest.”), aff’d 453 2 Fed. Appx. 751, 2011 WL 4842546 (9th Cir. 2011). 3 In this case, plaintiff claims that defendant Martinez violated his right to due process by 4 falsely accusing him of conspiring with inmate O’Reilly to bribe her to smuggle two iphones into 5 the prison. Plaintiff’s case is indistinguishable from those cases cited above, which make clear 6 that the Due Process Clause does not guarantee that prisoners will be free from false disciplinary 7 accusations. See Shallowhorn, 2012 WL 1551342 at *3. Accordingly, the undersigned will 8 recommend that plaintiff’s due process claim against defendant Martinez be dismissed for failure 9 to state a cognizable claim for relief. 10 Where, as here, it is clear that the complaint suffers from pleading deficiencies that cannot 11 be cured by amendment, dismissal without leave to amend is appropriate. See Chaset v. 12 Fleer/Skybox Int’l, 300 F.3d 1083, 1088 (9th Cir. 2002) (there is no need to prolong the litigation 13 by permitting further amendment where the “basic flaw” in the underlying facts as alleged cannot 14 be cured by amendment); Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1039 (9th Cir. 2002) 15 (“Because any amendment would be futile, there was no need to prolong the litigation by 16 permitting further amendment.”). 17 Turning now to plaintiff’s equal protection claim, plaintiff has clarified in his opposition 18 papers that he did not intend to assert a claim against defendant Martinez for discriminating 19 against him on the basis of his race. (Pl.’s Response to Def.’s Reply at 4.) Accordingly, the court 20 will recommend that any equal protection claim against defendant Martinez be dismissed. 21 Finally, the undersigned notes that plaintiff has argued in his opposition papers that his 22 complaint states a cognizable claim against defendant Martinez for retaliation and contends that 23 she submitted false disciplinary reports against him because he had written a letter to his wife and 24 had complained to ISU staff about defendant Martinez’s inappropriate conduct with inmate 25 O’Reilly and other inmates. Plaintiff is advised that an opposition to a motion to dismiss is not an 26 appropriate place to raise and/or argue new claims. See Schneider v. Cal. Dep’t of Corrs., 151 27 F.3d 1194, 1197 n.1 (9th Cir. 1998) (“The ‘new’ allegations contained in the inmates’ opposition 28 motion, however, are irrelevant for Rule 12(b)(6) purposes.”). When this court screened 6 1 plaintiff’s complaint, it found that it appeared to state a cognizable claim against defendants under 2 the Fourteenth Amendment Due Process Clause and Equal Protection Clause. (Doc. No. 12) 3 Plaintiff did not file a motion for reconsideration of that order nor did he move to amend his 4 complaint at that time. Moreover, the court has reviewed plaintiff’s complaint in connection with defendant’s 5 6 pending motion to dismiss, and he has not set forth any non-conclusory allegations in support of a 7 First Amendment retaliation claim. See Huskey v. City of San Jose, 204 F.3d 893, 899 (9th Cir. 8 2000) (a retaliation claim cannot rest on the logical fallacy of post hoc, ergo propter hoc, literally, 9 “after this, therefore because of this.”). The chronology of events in this case also makes a 10 retaliation claim such as that suggested by plaintiff to be rather implausible. In particular, 11 according to plaintiff’s complaint, defendant Martinez approached ISU Officer Wheeler and first 12 implicated plaintiff and inmate O’Reilly in the alleged bribery scheme back in August 2011. 13 (Compl. at 5-6.) Defendant Martinez also told defendant Harkness about the alleged bribery 14 scheme on October 1, 2011. (Id. at 8.) As a result of these conversations, prison officials devised 15 an ongoing plan to intercept the money and contraband phones before they entered the institution, 16 which ultimately led to plaintiff and inmate O’Reilly receiving the RVRs for “Conspiracy to 17 Bribe a Peace Officer.” (Id. at 6.) In this regard, it is clear that any retaliatory accusations and 18 conduct as suggested by plaintiff in his opposition to the pending motion to dismiss would have 19 started well before plaintiff wrote any letter to his wife in January 2012, or discussed defendant 20 Martinez’s alleged misconduct with Officer Harkness after Harkness had opened the investigation 21 into the alleged bribery scheme. (Compl. at 5-6; Pl’s Opp’n to Defs.’ Mot. to Dismiss at 5-6.) 22 Plaintiff also makes clear in the allegations of his complaint that defendant Martinez had 23 approached Officer Wheeler in a “jealous fit” because inmate O’Reilly had recently visited with 24 plaintiff’s female associate and not as a result of any purportedly protected conduct that plaintiff 25 had engaged in. (Id. at 5.) 26 In sum, for all of the foregoing reasons, the undersigned will recommend that defendant 27 Martinez’s motion to dismiss be granted and that defendant Martinez be dismissed from this 28 action. 7 1 2 3 CONCLUSION IT IS HEREBY ORDERED that the Clerk of the Court is directed to randomly assign a United States District Judge to this action. 4 IT IS HEREBY RECOMMENDED that: 5 1. Defendant Martinez’s motion to dismiss (Doc. No. 18) be granted; and 6 2. Defendant Martinez be dismissed from this action. 7 These findings and recommendations are submitted to the United States District Judge 8 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 9 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 response to the 12 objections shall be filed and served within seven days after service of the objections. The parties 13 are advised that failure to file objections within the specified time may waive the right to appeal 14 the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 Dated: August 7, 2015 16 17 18 DAD:9 brow2369.57martinez 19 20 21 22 23 24 25 26 27 28 8
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