Armstrong v. Curry et al, No. 5:2007cv06377 - Document 41 (N.D. Cal. 2011)

Court Description: ORDER GRANTING MOTION TO DISMISS; DENYING MOTION FOR STAY AS MOOT. Signed by Judge Jeremy Fogel on 3/4/11. (dlm, COURT STAFF) (Filed on 3/10/2011)

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Armstrong v. Curry et al Doc. 41 1 2 3 4 5 6 7 8 NOT FOR CITATION 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 12 ANDREW E. ARMSTRONG, 13 Plaintiff, 14 vs. 15 16 B. CURRY, Warden, et al., Defendants. 17 No. C 07-06377 JF (PR) ) ) ) ) ) ) ) ) ) ) ) ORDER GRANTING MOTION TO DISMISS; DENYING MOTION FOR STAY AS MOOT (Docket Nos. 35 & 37) 18 Plaintiff, a California prisoner proceeding pro se, filed the instant civil rights 19 20 action pursuant to 42 U.S.C. § 1983 against prison officials at the Correctional Training 21 Facility (“CTF”) in Soledad. Finding the amended complaint, liberally construed, stated 22 cognizable claims, the Court ordered service upon Defendants. Defendants B. Curry, I. 23 Soekardi, J. Hill, A. Tucker, S. Caravello, J. Aboytes, G. Ortiz, and J Biggs filed a motion 24 to dismiss based on several grounds, including for failure to state a claim and on the 25 grounds of qualified immunity. (Docket No. 35.) Plaintiff did not file opposition 26 although he was given an opportunity to do so. 27 /// 28 /// Order Granting Motion to Dismiss P:\PRO-SE\SJ.JF\CR.07\Armstrong377_grant-mtd.wpd 1 BACKGROUND 1 According to the allegations in the amended complaint, Plaintiff received a Rules 2 3 Violation Report (“RVR”) on December 22, 2006, charging him with “conspiracy to 4 introduce tobacco... by means of visiting.” (Am. Compl. at 2.) Plaintiff was found guilty 5 of the charge and assessed 60 days forfeiture of credit as well as suspension of several 6 privileges. (Id. Ex. A.) Plaintiff challenges the RVR, claiming that it was based on 7 insufficient evidence, i.e., five letters which were “improperly and erroneously assumed 8 to be mailed out [of] the institution by Plaintiff.” (Am. Compl. at 2.) Plaintiff seeks 9 dismissal and expungement of the RVR from his file, restoration of all suspended rights 10 and privileges, and compensatory damages. 11 DISCUSSION 12 13 A. Failure to State a Claim 14 Failure to state a claim is a grounds for dismissal before service under both 15 sections 1915A and 1915(e)(2), as well as under Rule 12(b)(6). Dismissal for failure to 16 state a claim is a ruling on a question of law. See Parks School of Business, Inc., v. 17 Symington, 51 F.3d 1480, 1483 (9th Cir. 1995). “The issue is not whether plaintiff will 18 ultimately prevail, but whether he is entitled to offer evidence to support his claim.” 19 Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). 20 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement 21 of the claim showing that the pleader is entitled to relief.” “Specific facts are not 22 necessary; the statement need only ‘”give the defendant fair notice of what the . . . . claim 23 is and the grounds upon which it rests.”’” Erickson v. Pardus, 127 S. Ct. 2197, 2200 24 (2007) (citations omitted). “While a complaint attacked by a Rule 12(b)(6) motion to 25 dismiss does not need detailed factual allegations, . . . a plaintiff’s obligation to provide 26 the ‘grounds of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and 27 a formulaic recitation of the elements of a cause of action will not do. . . . Factual 28 allegations must be enough to raise a right to relief above the speculative level.” Bell Order Granting Motion to Dismiss P:\PRO-SE\SJ.JF\CR.07\Armstrong377_grant-mtd.wpd 2 1 Atlantic Corp. v. Twombly, 550 U.S. 544, 553-56 (2007) (citations omitted). A motion to 2 dismiss should be granted if the complaint does not proffer “enough facts to state a claim 3 for relief that is plausible on its face.” Id. at 570; see, e.g., Ashcroft v. Iqbal, 129 S. Ct. 4 1937, 1952 (2009) (finding under Twombly and Rule 8 of the Federal Rules of Civil 5 Procedure, that complainant-detainee in a Bivens action failed to plead sufficient facts 6 “plausibly showing” that top federal officials “purposely adopted a policy of classifying 7 post-September-11 detainees as ‘of high interest’ because of their race, religion, or 8 national origin” over more likely and non-discriminatory explanations). 9 Interests protected by the Due Process Clause may arise from two sources--the 10 Due Process Clause itself and laws of the states. See Meachum v. Fano, 427 U.S. 215, 11 223-27 (1976). Changes in conditions so severe as to affect the sentence imposed in an 12 unexpected manner implicate the Due Process Clause itself, whether or not they are 13 authorized by state law. See Sandin v. Conner, 515 U.S. 472, 484 (1995). Deprivations 14 authorized by state law that are less severe or more closely related to the expected terms 15 of confinement may also amount to deprivations of a procedurally protected liberty 16 interest, provided that (1) state statutes or regulations narrowly restrict the power of 17 prison officials to impose the deprivation, i.e., give the inmate a kind of right to avoid it, 18 and (2) the liberty in question is one of “real substance.” See id. at 477-87. 19 Prisoners retain their right to due process subject to the restrictions imposed by the 20 nature of the penal system. See Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Thus 21 although prison disciplinary proceedings are not part of a criminal prosecution and the 22 full panoply of rights due a defendant in such proceedings does not apply, where serious 23 rules violations are alleged and the sanctions to be applied implicate state statutes or 24 regulations which narrowly restrict the power of prison officials to impose the sanctions 25 and the sanctions are severe, the Due Process Clause requires certain minimum 26 procedural protections. See id. at 556-57, 571-72 n.19. The placement of a California 27 prisoner in isolation or segregation, or the assessment of good-time credits against him, as 28 a result of disciplinary proceedings, for example, is subject to Wolff’s procedural Order Granting Motion to Dismiss P:\PRO-SE\SJ.JF\CR.07\Armstrong377_grant-mtd.wpd 3 1 protections if (1) state statutes or regulations narrowly restrict the power of prison 2 officials to impose the deprivation, and (2) the liberty in question is one of “real 3 substance.” See Sandin, 515 U.S. at 477-87. Allegations by a prisoner that he was denied due process in conjunction with a 4 5 disciplinary proceeding do not present a constitutionally cognizable claim, however, 6 unless the deprivation suffered is one of “real substance” as defined in Sandin. “Real 7 substance” will generally be limited to freedom from (1) restraint that imposes “atypical 8 and significant hardship on the inmate in relation to the ordinary incidents of prison life,” 9 id. at 484, or (2) state action that “will inevitably affect the duration of [a] sentence,” id. 10 at 487. Defendants argue that Plaintiff fails to state a due process claim with respect to the 11 12 RVR at issue. Defendants argue that the evidence used against Plaintiff were five letters 13 from Plaintiff to his son, brother, and daughter, which included plans and instructions 14 from Plaintiff to his family members on how to smuggle tobacco him in prison by means 15 of visiting and how to launder the resulting profits. (Mot. at 3.) The specific content of 16 these letters is quoted in detail in the RVR, a copy of which Plaintiff attached to his 17 complaint. (See Am. Compl., Ex. A.) Defendants contend that Plaintiff’s complaint 18 should be dismissed because the RVR attached thereto contains sufficient information 19 regarding the letters to show that there was some evidence with indicia of reliability to 20 support the finding of guilt, and therefore no due-process violation occurred. (Mot. at 21 10.) 22 Plaintiff’s sole allegation is that prison officials wrongfully concluded that these 23 letters were authored by Plaintiff because they did not establish a complete chain of 24 custody at his disciplinary hearing. Plaintiff claims that there is no chain of custody to 25 establish that these “typed letters” with a handwritten CDC number were from him. (Am. 26 Compl. at 2-3.) In other words, Plaintiff would have the Court believe that one or more 27 unidentified authors fabricated these five letters in his name and addressed them to his 28 family over the course of two months in order to frame Plaintiff for this disciplinary Order Granting Motion to Dismiss P:\PRO-SE\SJ.JF\CR.07\Armstrong377_grant-mtd.wpd 4 1 action. However, the Court finds no evidence in the record to support this theory, and 2 Plaintiff offers none. 3 In Superintendent v. Hill, 472 U.S. 445, 454 (1985), the Court held that the 4 revocation of good-time credits does not comport with the minimum requirements of 5 procedural due process in Wolff unless the findings of the prison disciplinary board are 6 supported by some evidence in the record. The standard for the modicum of evidence 7 required is met if there was some evidence from which the conclusion of the 8 administrative tribunal could be deduced. See id. at 455. An examination of the entire 9 record is not required nor is an independent assessment of the credibility of witnesses or 10 weighing of the evidence. See id. The relevant question is whether there is any evidence 11 in the record that could support the conclusion reached by the disciplinary board. See id. 12 The Court reiterated that revocation of good-time credits is not comparable to a criminal 13 conviction and neither the amount of evidence necessary to support such a conviction, nor 14 any other standard greater than some evidence, applies in this context. See id. at 456. 15 Without examining the entire record or doing an independent assessment of the credibility 16 of the evidence as proscribed by the Supreme Court, it is clear that the five letters which 17 were on their face addressed from Plaintiff to members of his immediate family members 18 constitute some evidence to support the guilty finding for conspiracy to smuggle and sell 19 contraband in prison. 20 The Ninth Circuit additionally has held that there must be some indicia of 21 reliability of the information that forms the basis for prison disciplinary actions. See Cato 22 v. Rushen, 824 F.2d 703, 704-05 (9th Cir. 1987) (only evidence implicating defendant 23 placed in disciplinary segregation was uncorroborated hearsay statement of confidential 24 informant who had no first hand knowledge of any relevant statements or actions of 25 defendant and polygraph statement of inmate who made statement was inconclusive). 26 Here, there were five letters written over the course of two months to three separate 27 family members, the contents of which were all consistent with respect to a conspiracy to 28 introduce contraband into prison through visitation. Furthermore, there was a reference in Order Granting Motion to Dismiss P:\PRO-SE\SJ.JF\CR.07\Armstrong377_grant-mtd.wpd 5 1 one of the letters regarding a specific visitation, which was corroborated by the visiting 2 records. The Court finds that taken together, the letters bear some indicia of reliability. 3 Accordingly, Defendants’ motion to dismiss is GRANTED for failure to state a claim, 4 and all claims against these Defendants are DISMISSED.1 5 CONCLUSION 6 For the reasons stated above, Defendants’ motion to dismiss, (Docket No. 35), is 7 8 GRANTED for failure to state a claim. All claims against Defendants B. Curry, I. 9 Soekardi, J. Hill, A. Tucker, S. Caravello, J. Aboytes, G. Ortiz, and J Biggs are 10 DISMISSED with prejudice. Defendants’ motion for stay of discovery, (Docket No. 37) 11 is DENIED as moot. No claims were made against Defendant N. Grannis in the amended complaint. 12 13 Accordingly, Defendant Grannis is DISMISSED from this action. 14 This order terminates Docket Nos. 35 and 37. 15 IT IS SO ORDERED. 16 17 DATED: 3/4/11 JEREMY FOGEL United States District Judge 18 19 20 21 22 23 24 25 26 27 28 1 Because the Court finds that no constitutional violation occurred, it is not necessary to reach Defendants’ qualified immunity argument. Order Granting Motion to Dismiss P:\PRO-SE\SJ.JF\CR.07\Armstrong377_grant-mtd.wpd 6 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ANDREW E. ARMSTRONG, Case Number: CV07-06377 JF Plaintiff, CERTIFICATE OF SERVICE v. B. CURRY, et al., Defendants. / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. 3/10/11 That on , I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. Andrew Emil Armstrong H-44225 Correctional Training Facility PO Box 689 E-135 Soledad, CA 93960-0689 Dated: 3/10/11 Richard W. Wieking, Clerk

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