(PC) Brown v. Martinez, et al., No. 2:2013cv02369 - Document 42 (E.D. Cal. 2015)
Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 8/7/2015 DIRECTING the Clerk to randomly assign a US District Judge to this action; AND RECOMMENDING that defendants' 17 motion to dismiss filed by Harkness, Ki rch, Perez, Plainer, Foulk, and Fish be granted; and plaintiff be granted 30 days of any order adopting these findings and recommendations to file a supplemental complaint for the limited purpose of curing the deficiency of his due process claim. 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 defendants Harkness, Fish, Perez, Kirch, Plainer, and Foulk. Plaintiff has filed an opposition to 20 the motion, and defendants have filed a reply. 21 For the reasons discussed below, the undersigned finds that plaintiff’s complaint fails to 22 state a cognizable claim for relief against the moving defendants. Accordingly, the undersigned 23 will recommend that defendants’ motion to dismiss be granted. The court will also recommend, 24 however, that plaintiff be granted thirty days leave to file a supplemental complaint so that he 25 may attempt to cure the noted deficiency of his Fourteenth Amendment due process claim. 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 as follows. In 4 July 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.” Defendant Martinez attempted to establish familiarity 7 with him and inmate O’Reilly and eventually developed an inappropriate on-again off-again 8 relationship of a sexual nature with inmate O’Reilly. (Compl. at 3 & 5.) Plaintiff introduced 9 inmate O’Reilly to a female associate of his, and the two began corresponding. Defendant 10 Martinez became jealous and approached Investigative Services Unit (“ISU”) Officer Wheeler 11 and told him that inmate O’Reilly implied that he would pay her $12,000.00 to smuggle two 12 iphones into the institution – one for him and one for plaintiff. ISU Officer Wheeler met with 13 ISU Officer defendant Harkness, at which time they opened an investigation and devised a plan to 14 intercept the money and contraband phones before they entered the institution. (Compl. at 5-6.) 15 On January 27, 2012, defendant Harkness completed his investigation into the matter. 16 ISU staff escorted plaintiff and inmate O’Reilly to the program office, read them their Miranda 17 rights, and placed them in administrative segregation. On February 8, 2012, defendant Fish 18 issued plaintiff a Rules Violation Report (“RVR”), authored by defendant Harkness, charging 19 plaintiff with the prison disciplinary offense “Conspiracy to Bribe a Peace Officer.” Plaintiff 20 claims that the report falsely stated that he wanted defendant Martinez to bring him two iphones 21 with attachable microphones. (Compl. at 15-18, Ex. A(3).) 22 On March 2, 2012, plaintiff appeared before Senior Hearing Officer defendant Angulo. 23 Plaintiff requested defendant Martinez as a witness, but defendant Fish told defendant Angulo 24 that plaintiff had rescinded that request. Plaintiff said that he had done no such thing, but 25 defendant Angulo explained that defendant Martinez was not available to appear as a witness and 26 1 27 28 Defendants Martinez and Angulo are represented by separate counsel in this action. Counsel for defendant Martinez 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 separate findings and recommendations. 2 1 that her absence would not prejudice the hearing in any event. Plaintiff also attempted to give 2 defendant Angulo a written statement, but she refused it and purportedly told plaintiff “It doesn’t 3 matter. I’m going to find you guilty anyway.” (Compl. at 23-24, Ex. D.) Prison officials found both plaintiff and inmate O’Reilly guilty of the conspiracy 4 5 disciplinary charge. On March 21, 2012, defendant Perez ordered inmate O’Reilly’s RVR 6 reissued and reheard because defendant Angulo had stipulated to witness testimony that was 7 inconsistent with the witness’s incident report. However, defendant Kirch and defendant Plainer 8 reviewed plaintiff’s RVR and upheld plaintiff’s guilty finding on the same charge. On April 12, 9 2012, plaintiff received a six-month SHU term. Plaintiff administratively appealed his guilty 10 finding and pointed to defendant Perez’s memo to defendant Kirch ordering a reissuing and 11 rehearing of inmate O’Reilly’s RVR. In plaintiff’s view, the only difference between him and 12 inmate O’Reilly was their skin color and plaintiff’s status as a recording artist. On May 24, 2012, 13 defendant Foulk denied plaintiff’s appeal at the second level of review. However, on September 14 24, 2012, prison officials granted plaintiff relief at the third level of review and ordered his RVR 15 reissued and reheard. On November 20, 2012, Senior Hearing Officer Sisson found plaintiff not 16 guilty and dismissed the RVR. Ultimately, plaintiff served two months in the SHU. (Compl. at 17 24-31, Exs. E-I, L, N.) 18 On May 23, 2012, Steven Leese, a Special Agent from Internal Affairs, interviewed 19 plaintiff and stated he was investigating allegations of staff misconduct against defendant 20 Martinez. Plaintiff explained the entire course of events that had taken place with respect to his 21 RVR. Special Agent Leese informed him that both Internal Affairs and the Office of the 22 Inspector General were investigating defendant Martinez. According to plaintiff, as a result of 23 that investigation, the California Department of Corrections and Rehabilitation no longer employs 24 defendant Martinez. (Compl. at 31.) At screening, the court found that liberally construed plaintiff’s complaint appeared to 25 26 state a cognizable claim against defendants under the Fourteenth Amendment Due Process Clause 27 and Equal Protection Clause. (Doc. No. 12) 28 ///// 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 II. Discussion 2 In the pending motion to dismiss, counsel for the moving defendants argues that plaintiff 3 has failed to plead sufficient facts to state a cognizable claim for relief against those defendants 4 under the Fourteenth Amendment Due Process Clause as well as under the Fourteenth 5 Amendment Equal Protection Clause against all of the defendants except defendants Perez and 6 Kirch.2 (Defs.’ Mot. to Dismiss (Doc. No. 17) at 4-10.) Upon further review of plaintiff’s 7 complaint, and for the reasons set forth below, the court finds that argument to be persuasive. As to plaintiff’s due process claim against defendants, the Supreme Court has held that the 8 9 procedural protections guaranteed by the Fourteenth Amendment Due Process Clause only apply 10 when a constitutionally protected liberty or property interest is at stake. See Wilkinson v. Austin, 11 545 U.S. 209, 221 (2005) see also Marsh v. County of San Diego, 680 F.3d 1148, 1155 (9th Cir. 12 2012); Brittain v. Hansen, 451 F.3d 982, 999-1000 (9th Cir. 2006). The Due Process Clause itself 13 does not give prisoners a liberty interest in avoiding transfer to more adverse conditions of 14 confinement. See Meachum v. Fano, 427 U.S. 215, 225 (1976). However, states may create 15 liberty interests which are protected by the Due Process Clause. These circumstances generally 16 involve a change in condition of confinement that imposes an “atypical and significant hardship 17 on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Connor, 515 U.S. 18 472, 484 (1995). In Sandin, the Supreme Court held that a prisoner’s thirty-day disciplinary segregated 19 20 confinement did not implicate a liberty interest because it did not present a “dramatic departure” 21 from the basic conditions of the prisoner’s indeterminate sentence. Sandin, 515 U.S. at 485. In 22 so holding, the Court explained that the prisoner’s segregated confinement, with insignificant 23 exceptions, was essentially the same as the conditions imposed on inmates in administrative 24 segregation. See id. at 486. In addition, the Court explained that the state in that case had 25 ultimately expunged the prisoner’s disciplinary record of the more serious charge, and the 26 prisoner had not suffered a “major disruption in his environment” both in terms of duration and 27 28 2 In addition to filing the pending motion to dismiss, defendants Perez and Kirch have filed an answer. (Doc. No. 16) 5 1 degree of restriction. See id. Finally, the Court explained that the state’s actions in the case 2 would not affect the duration of plaintiff’s sentence. See id. at 487. 3 In this case, plaintiff claims that the moving defendants denied him due process in 4 connection with the issuing, hearing, and review of his RVR, which resulted in his serving a two 5 month SHU term. (Compl. at 17-32.) However, plaintiff has not alleged that he had a liberty 6 interest at stake in avoiding his temporary disciplinary segregation in the SHU. Specifically, 7 plaintiff has not alleged facts describing how his SHU conditions rose to the level of an “atypical 8 and significant hardship” on him. See Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003) 9 (“Sandin requires a factual comparison between conditions in general population or 10 administrative segregation (whichever is applicable) and disciplinary segregation, examining the 11 hardship caused by the prisoner’s challenged action in relation to the basic conditions of life as a 12 prisoner.”); Resnick v. Hayes, 213 F.3d 443, 448-49 (9th Cir. 2000) (affirming the dismissal of 13 federal prisoner’s complaint because he had not alleged a liberty interest in not being held in the 14 SHU pending a disciplinary hearing). In this regard, plaintiff’s temporary disciplinary 15 segregation in the SHU may well have been “within the range of confinement to be normally 16 expected” by prisoners “in relation to the ordinary incidents of prison life.” Sandin, 415 U.S. at 17 486-87. See also Jackson, 353 F.3d at 755 (“What less egregious condition or combination of 18 conditions or factors would meet the test requires case by case, fact by fact consideration.”). 19 Unless there is a protected liberty interest at stake, the court need not reach question of 20 what process plaintiff was due. See Wilkinson, 545 U.S. at 221 (“We need reach the question of 21 what process is due only if the inmates establish a constitutionally protected liberty interest ….”). 22 Accordingly, the undersigned will recommend that plaintiff’s due process claim against the 23 moving defendants be dismissed. However, plaintiff may be able to cure the noted deficiency of 24 his complaint. Accordingly, the undersigned will also recommend that plaintiff be granted leave 25 to file a supplemental complaint. In any supplemental complaint plaintiff elects to file, he will 26 need to allege facts that, if proven, would demonstrate that his alleged deprivation (i.e., his 27 ///// 28 ///// 6 1 temporary disciplinary segregation in the SHU) resulted in him suffering an “atypical and 2 significant hardship” that might have conceivably created a liberty interest.3 3 Turning now to plaintiff’s equal protection claim, the Supreme Court has held that the 4 Equal Protection Clause “is essentially a direction that all persons similarly situated should be 5 treated alike.” City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439 (1985). 6 “Prisoners are protected under the Equal Protection Clause of the Fourteenth Amendment from 7 invidious discrimination based on race.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974). To 8 state a cognizable claim under the Equal Protection Clause, a prisoner “must plead intentional 9 unlawful discrimination or allege facts that are at least susceptible of an inference of 10 discriminatory intent.” Monteiro v. Tempe Union High School District, 158 F.3d 1022, 1026 (9th 11 Cir. 1998). “Intentional discrimination means that a defendant acted at least in part because of a 12 plaintiff’s protected status.” Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003) (emphasis in 13 original) (quoting Maynard v. City of San Jose, 37 F.3d 1396, 1404 (9th Cir. 1994)). 14 In this case, as noted above, plaintiff claims that the moving defendants did not provide 15 him with due process in connection with the issuing, hearing, and review of his RVR. However, 16 plaintiff has not alleged any facts in his complaint in connection with his claims indicating that 17 defendants Harkness, Fish, Plainer, and Foulk intentionally discriminated against him based on 18 his race. Plaintiff makes clear in his complaint that defendant Harkness treated plaintiff and 19 inmate O’Reilly the same by issuing them the same RVR. In addition, although plaintiff takes 20 issue with both the conduct and decisions made during his disciplinary hearing and the inmate 21 appeals process by defendants Fish, Plainer, and Foulk, he has not alleged in his complaint that 22 3 23 24 25 26 27 28 Given the lengthy and detailed nature of plaintiff’s original complaint, the undersigned is recommending that plaintiff be granted leave to file a supplemental complaint instead of an amended complaint (that is complete in and of itself). In any supplemental complaint, plaintiff need not repeat the allegations of his original complaint. Rather, he need only allege the additional facts necessary, if he is able to do so, to specify how his alleged deprivation constituted an atypical and significant hardship on him in relation to the ordinary incidents of prison life. The undersigned notes that it has issued separate findings and recommendations reaching the same conclusion with respect to plaintiff’s due process claim against defendant Angulo. If the assigned district judge adopts both of the undersigned’s findings and recommendations on plaintiff’s due process claims, plaintiff need only file one supplemental complaint containing the relevant new allegations against all remaining defendants. 7 1 they treated inmate O’Reilly better. Rather, in his opposition to defendant Martinez’s pending 2 motion to dismiss plaintiff confirmed how similarly situated and treated he and inmate O’Reilly 3 were by stating as follows: 4 5 6 7 8 9 10 11 They were both placed in ASU for Conspiracy to Bribe a Peace Officer; they were issued identical RVRs; they were assigned the same Investigative Employee (Fish); they were issued identical Incident Reports; they had the same hearing officer; they had their respective hearings on the same day; the hearing officer alleged that they both had rescinded their initial requests for Martinez to appear at the hearing; the hearing officer attempted to intimidate them both into rescinding their requests for Martinez to be present at the hearing; they were both denied the right to call Martinez as a witness; the hearing officer stipulated to Martinez’s witness testimony at both of their hearings, specifically that they both “did not have a conversation with her”; and they were both found guilty. (Pl.’s Opp’n to Def. Martinez’s Mot. to Dismiss at 10.) 12 According to plaintiff, he received identical treatment to inmate O’Reilly except when 13 defendants Kirch and Perez reviewed their guilty findings on the disciplinary charges brought 14 against them. (Compl. at 26.) In this regard, plaintiff has not alleged that defendants Harkness, 15 Fish, Plainer, and Foulk treated him differently from inmate O’Reilly on the basis of his race for 16 purposes of an equal protection claim. Accordingly, the undersigned will recommend that 17 plaintiff’s equal protection claim against defendants Harkness, Fish, Plainer, and Foulk be 18 dismissed for failure to state a cognizable claim for relief. In addition, it is clear that the 19 complaint suffers from pleading deficiencies with respect to plaintiff’s equal protection claim that 20 cannot be cured by amendment. Accordingly, the undersigned will recommend dismissing that 21 claim without leave to amend. See Chaset v. Fleer/Skybox Int’l, 300 F.3d 1083, 1088 (9th Cir. 22 2002) (there is no need to prolong the litigation by permitting further amendment where the 23 “basic flaw” in the underlying facts as alleged cannot be cured by amendment); Lipton v. 24 Pathogenesis Corp., 284 F.3d 1027, 1039 (9th Cir. 2002) (“Because any amendment would be 25 futile, there was no need to prolong the litigation by permitting further amendment.”). 26 Finally, the court notes that plaintiff has argued in his opposition to the pending motion 27 that the moving defendants retaliated against him when they issued, heard, and reviewed his RVR 28 because he had reported defendant Martinez to the proper authorities. Plaintiff is advised that an 8 1 opposition to a motion to dismiss is not an appropriate place to raise and argue new claims. See 2 Schneider v. Cal. Dep’t of Corrs., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998) (“The ‘new’ 3 allegations contained in the inmates’ opposition motion, however, are irrelevant for Rule 12(b)(6) 4 purposes.”). When this court screened plaintiff’s original complaint, it found that it appeared to 5 state a cognizable claim against defendants under the Fourteenth Amendment Due Process Clause 6 and Equal Protection Clause. (Doc. No. 12) Plaintiff did not file a motion for reconsideration of 7 that order or a motion to amend his complaint at that time. Moreover, the court has reviewed plaintiff’s complaint in connection with defendants’ 8 9 pending motion to dismiss, and he has not set forth any non-conclusory allegations therein in 10 support of a First Amendment retaliation claim against the moving defendants. See Huskey v. 11 City of San Jose, 204 F.3d 893, 899 (9th Cir. 2000) (a retaliation claim cannot rest on the logical 12 fallacy of post hoc, ergo propter hoc, literally, “after this, therefore because of this.”). 13 Specifically, plaintiff has not alleged the crucial causal link between him reporting defendant 14 Martinez to the proper authorities and defendants alleged misconduct when they issued, heard, 15 and reviewed his RVR. See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). At most, 16 in his opposition to defendants’ motion to dismiss, plaintiff merely speculates that defendants 17 retaliated against him because of his allegations against defendant Martinez. In sum, plaintiff’s complaint fails to state a cognizable claim for relief under the 18 19 Fourteenth Amendment Due Process Clause or Equal Protection Clause. Accordingly, the 20 undersigned will recommend that defendants’ motion to dismiss be granted. However, because 21 plaintiff may be able to cure the deficiency of his complaint with respect to his due process 22 claim, the undersigned will recommend that plaintiff be granted thirty days leave to file a 23 supplemental complaint to allege facts that, if proven, would demonstrate that he had a liberty 24 interest in avoiding his temporary disciplinary segregation in the SHU.4 25 ///// 26 4 27 28 In light of these findings and recommendations, the undersigned declines to address defendants’ alternative arguments that plaintiff received all the process he was due and that defendants are entitled to qualified immunity. Defendants may renew such arguments in a response to plaintiff’s supplemental complaint if appropriate. 9 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. Defendants’ motion to dismiss (Doc. No. 17) be granted; and 6 2. Plaintiff be granted thirty days leave from the date of any order adopting these findings 7 and recommendations to file a supplemental complaint for the limited purpose of curing the 8 deficiency of his due process claim. 9 These findings and recommendations are submitted to the United States District Judge 10 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 11 after being served with these findings and recommendations, any party may file written 12 objections with the court and serve a copy on all parties. Such a document should be captioned 13 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 14 objections shall be filed and served within seven days after service of the objections. The parties 15 are advised that failure to file objections within the specified time may waive the right to appeal 16 the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 Dated: August 7, 2015 18 19 20 21 DAD:9 brow2369.57state 22 23 24 25 26 27 28 10
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