Elrod v. D. J. Harlow et al, No. 5:2009cv04584 - Document 28 (N.D. Cal. 2011)
Court Description: ORDER GRANTING MOTION TO DISMISS. Signed by Judge Jeremy Fogel on 3/9/11. (dlm, COURT STAFF) (Filed on 3/11/2011)
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Elrod v. D. J. Harlow et al Doc. 28 1 2 3 4 5 6 7 8 NOT FOR CITATION 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 12 JAMES B. ELROD, Plaintiff, 13 14 vs. 15 D. J. HARLOW, et al., 16 Defendants. 17 No. C 09-04584 JF (PR) ) ) ) ) ) ) ) ) ) ) ) ) ORDER GRANTING MOTION TO DISMISS (Docket No. 18) 18 19 Plaintiff, a California prisoner incarcerated at the Pelican Bay State Prison 20 (“PBSP”) in Soledad, filed the instant civil rights action in pro se pursuant to 42 U.S.C. 21 § 1983 against PBSP prison officials for unconstitutional acts. Defendants Harlow and 22 Rice filed a motion to dismiss the complaint on the grounds that the complaint fails to 23 state a claim upon which relief can be granted and that they are entitled to qualified 24 immunity. (Docket No. 18.) Plaintiff filed opposition, and Defendants filed a reply. 25 BACKGROUND 26 27 28 Plaintiff challenges the PBSP officials’ 2008 decision finding him ineligible for inactive gang status although he had no current criminal gang activity within the past six Order Granting Motion to Dismiss P:\PRO-SE\SJ.JF\CR.09\Elrod04584_grant-mtd.wpd 1 Dockets.Justia.com 1 years. The Court found the following claims cognizable: (1) Defendants violated due 2 process by using unreliable and “untrue” information that does not constitute some 3 evidence of current criminal gang activity, (Compl. Attach. at 10); (2) the wrongful 4 decision was made in retaliation for the homicide of Plaintiff’s cell-mate, (id.); (3) 5 Plaintiff’s procedural due process rights were violated during the inactive status review 6 process, (id. at 13); and (4) Defendants violated Plaintiff’s state due process rights, (id.). 7 DISCUSSION 8 9 I. Statement of Facts The following facts are not disputed unless otherwise indicated. Plaintiff was 10 11 initially validated as an Aryan Brotherhood associate in 2001 in accordance with state 12 regulations.1 (Mot. at 4.) A subsequent review was conducted in December 2003. 13 (Compl. Ex. C.) After the CDCR validates an inmate as a prison-gang member or 14 associate, the state regulations permit, but do not require, an inactive-status review of a 15 validated inmate housed in the Security Housing Unit (SHU). Cal. Code Regs., tit. 15 §§ 16 3341.5(c)(5). During the inactive-status review, the inmate receives an opportunity to be 17 heard regarding the items referenced in the inactive-status package. Id. § 3378(c)(6)(A)- 18 (D). On May 29, 2008, Defendant Harlow reviewed Plaintiff’s central file as part of an 19 20 inactive-status review, during which he identified fourteen documents as valid evidence 21 indicating Plaintiff’s current gang involvement, including three documents stating that 22 Plaintiff murdered his cellmate at the behest of the Aryan Brotherhood. (Compl. at 5.) In 23 24 25 26 27 28 1 The California Department of Corrections and Rehabilitation (“CDCR”) validates inmates as prison-gang members or associates if the CDCR determines that there are at least three independent pieces of evidence indicating membership or association. Cal. Code Regs., tit, 15 §§ 3378(c)(3)-(4); (Mot. at 4). A gang investigator investigates gang involvement and recommends validation by sending a validation package to the Office of Correctional Safety, which makes the final decision whether to validate the inmate. Id. § 3378(c), (c)(6). Order Granting Motion to Dismiss P:\PRO-SE\SJ.JF\CR.09\Elrod04584_grant-mtd.wpd 2 1 accordance with the state regulations, see Cal. Code Regs., tit. 15 § 3378(c)(6)(A)-(D), 2 Defendant Harlow provided Plaintiff with the non-confidential evidence and disclosure 3 forms for the confidential evidence, and informed him that he would be interviewed after 4 twenty-four hours. (Compl. at 7.) Defendant interviewed Plaintiff on June 6, 2008, at 5 which time Plaintiff submitted eleven pages in response to the evidence. (Id.) On June 9, 6 2008, Defendant Harlow provided Plaintiff with a copy of the inactive-status package in 7 which he recommended that Plaintiff be considered active with the Aryan Brotherhood, 8 and that his validation be changed from associate to member. (Id.) on August 28, 2008, 9 the Office of Correctional Safety validated Plaintiff as an Aryan Brotherhood member, 10 accepting twelve of the fourteen pieces of evidence submitted in the inactive-status 11 package. (Id., Ex. C.) 12 II. Failure to State a Claim 13 Failure to state a claim is a grounds for dismissal before service under both 14 sections 1915A and 1915(e)(2), as well as under Rule 12(b)(6). Dismissal for failure to 15 state a claim is a ruling on a question of law. See Parks School of Business, Inc., v. 16 Symington, 51 F.3d 1480, 1483 (9th Cir. 1995). “The issue is not whether plaintiff will 17 ultimately prevail, but whether he is entitled to offer evidence to support his claim.” 18 Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). 19 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement 20 of the claim showing that the pleader is entitled to relief.” “Specific facts are not 21 necessary; the statement need only ‘”give the defendant fair notice of what the . . . . claim 22 is and the grounds upon which it rests.”’” Erickson v. Pardus, 127 S. Ct. 2197, 2200 23 (2007) (citations omitted). “While a complaint attacked by a Rule 12(b)(6) motion to 24 dismiss does not need detailed factual allegations, . . . a plaintiff’s obligation to provide 25 the ‘grounds of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and 26 a formulaic recitation of the elements of a cause of action will not do. . . . Factual 27 allegations must be enough to raise a right to relief above the speculative level.” Bell 28 Atlantic Corp. v. Twombly, 550 U.S. 544, 553-56 (2007) (citations omitted). A motion to Order Granting Motion to Dismiss P:\PRO-SE\SJ.JF\CR.09\Elrod04584_grant-mtd.wpd 3 1 dismiss should be granted if the complaint does not proffer “enough facts to state a claim 2 for relief that is plausible on its face.” Id. at 570; see, e.g., Ashcroft v. Iqbal, 129 S. Ct. 3 1937, 1952 (2009) (finding under Twombly and Rule 8 of the Federal Rules of Civil 4 Procedure, that complainant-detainee in a Bivens action failed to plead sufficient facts 5 “plausibly showing” that top federal officials “purposely adopted a policy of classifying 6 post-September-11 detainees as ‘of high interest’ because of their race, religion, or 7 national origin” over more likely and non-discriminatory explanations). 8 A. Due Process 9 Plaintiff’s first and third claims are that Defendants violated due process by using 10 unreliable and “untrue” information that does not constitute some evidence of current 11 criminal gang activity during his inactive-status review, (Compl. Attach. at 10), and that 12 during the review his procedural due process rights were also violated. The touchstone of 13 due process is protection of the individual against arbitrary action of government, whether 14 the fault lies in a denial of fundamental procedural fairness (i.e., denial of procedural due 15 process guarantees) or in the exercise of power without any reasonable justification in the 16 service of a legitimate governmental objective (i.e., denial of substantive due process 17 guarantees). See County of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998). 18 Interests that are procedurally protected by the Due Process Clause may arise from 19 two sources – the Due Process Clause itself and laws of the states. See Meachum v. 20 Fano, 427 U.S. 215, 223-27 (1976). In the prison context, these interests are generally 21 ones pertaining to liberty. Changes in conditions so severe as to affect the sentence 22 imposed in an unexpected manner implicate the Due Process Clause itself, whether or not 23 they are authorized by state law. See Sandin v. Conner, 515 U.S. 472, 484 (1995) (citing 24 Vitek v. Jones, 445 U.S. 480, 493 (1980) (transfer to mental hospital), and Washington v. 25 Harper, 494 U.S. 210, 221-22 (1990) (involuntary administration of psychotropic drugs)). 26 A state may not impose such changes without complying with minimum requirements of 27 procedural due process. See id. at 484. 28 Deprivations that are authorized by state law and are less severe or more closely Order Granting Motion to Dismiss P:\PRO-SE\SJ.JF\CR.09\Elrod04584_grant-mtd.wpd 4 1 related to the expected terms of confinement may also amount to deprivations of a 2 procedurally protected liberty interest, provided that (1) state statutes or regulations 3 narrowly restrict the power of prison officials to impose the deprivation, i.e., give the 4 inmate a kind of right to avoid it, and (2) the liberty in question is one of “real substance.” 5 See id. at 477-87. Generally, “real substance” will be limited to freedom from (1) a 6 restraint that imposes “atypical and significant hardship on the inmate in relation to the 7 ordinary incidents of prison life,” id. at 484, or (2) state action that “will inevitably affect 8 the duration of [a] sentence,” id. at 487. 9 Defendants argue that Plaintiff fails to show that the inactive review process 10 caused an atypical and significant hardship and therefore fails to state a due process 11 claim. (Mot. at 6.) Defendants assert that the inactive-status review at issue did not 12 change Plaintiff’s conditions of confinement because Plaintiff was housed in the SHU 13 before, during, and after the review. (Id.) Because there was no change in the conditions 14 of confinement as a result of the review, Defendants argue that the due process claim 15 must be dismissed for failure to state a claim. (Id.) Defendants also assert that even if the 16 2008 inactive-status review caused an atypical and significant hardship, the state 17 regulations indicate that inactive-status reviews are discretionary and therefore do not 18 create a protected liberty interest without which there cannot be a federal due process 19 claim. In opposition, Plaintiff merely repeats his assertions that the decision to deny him 20 inactive status was “arbitrary and capricious” and based on “erroneous evidence that 21 [does] not rise to the level of ‘some evidence.’” (Oppo. at 4-5.) Plaintiff has failed to 22 show that the inactive-status review in question caused a change in the conditions of 23 confinement that amounts to “an atypical and significant hardship,” to refute to 24 Defendants’ assertions. Furthermore, the discretionary language of the state regulation 25 regarding inactive-status reviews implies that there was no state created liberty interest to 26 such reviews which would require compliance with procedural due process. See Sandin, 27 515 U.S. at 484. Accordingly, Plaintiff’s due process claims must be dismissed for 28 failure to state claim. Order Granting Motion to Dismiss P:\PRO-SE\SJ.JF\CR.09\Elrod04584_grant-mtd.wpd 5 1 B. Retaliation 2 Plaintiff’s second claim is that Defendants validated him as a gang member in 3 retaliation for the murder of his cellmate. (Compl. Attach. at 10.) The only constitutional 4 basis for a retaliation claim in the prison context is under the First Amendment. “Within 5 the prison context, a viable claim of First Amendment retaliation entails five basic 6 elements: (1) An assertion that a state actor took some adverse action against an inmate 7 (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the 8 inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably 9 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th 10 Cir. 2005) (footnote omitted). 11 Defendants argue that Plaintiff’s claim fails because killing a person is not 12 protected conduct under the First Amendment. (Mot. at 7.) Plaintiff argues in opposition 13 that certain statements by Defendant Beeson show that Plaintiff was denied inactive status 14 solely due to the murder. Nevertheless, Plaintiff fails to show how the murder of his 15 cellmate, the fact of which he does not dispute, was “protected conduct” or that it chilled 16 the exercise of his First Amendment rights. Accordingly, his retaliation claim must be 17 dismissed for failure to state a claim. 18 C. State Law Claim 19 Plaintiff’s last claim is that Defendants violated his state due process rights. 20 Defendants argue that this claim must be dismissed because Plaintiff has failed to allege 21 facts showing that he properly exhausted his state-law claim in accordance with the 22 Government Claims Act, Cal. Gov’t Code §§ 905, 905.2, 945.4. (Mot. at 7.) In the 23 alternative, Defendants argue that the Court should dismiss the state law claim if it 24 decides to dismiss the federal claims discussed above. 25 The Court has discretion under 28 U.S.C. § 1367(c) to adjudicate or to dismiss the 26 remaining state law claims when it has dismissed all claims over which it has original 27 jurisdiction. See Ove v. Gwinn, 264 F.3d 817, 826 (9th Cir. 2001) (court may decline to 28 exercise supplemental jurisdiction over related state-law claims under subsection (c)(3) Order Granting Motion to Dismiss P:\PRO-SE\SJ.JF\CR.09\Elrod04584_grant-mtd.wpd 6 1 once it has dismissed all claims over which it has original jurisdiction.) Plaintiff’s state 2 due process claim is based on the same set of facts as his federal due process claims, 3 which the Court has dismissed above. Accordingly, the Court declines to exercise 4 jurisdiction over the remaining state law claim, and will dismiss this claim without 5 prejudice. See Reynolds v. County of San Diego, 84 F.3d 1162, 1171 (9th Cir. 1996). 6 III. Claims Against Unserved Defendants On February 3, 2010, the Court directed the clerk to prepare the summons for 7 8 service of the complaint upon Defendants J. Beeson and S. Kissel, and the United States 9 Marshal to effectuate such service. On March 17, 2010, the Marshal returned the 10 summonses unexecuted as to these Defendants. (See Docket Nos. 10 & 11.) 11 Accordingly, Defendants Beeson and Kissel have not been served and have not appeared 12 in this action. However, a motion may be granted by the court sua sponte in favor of a 13 nonappearing party on the basis of facts presented by other defendants who have 14 appeared. See Abagninin v. AMVAC Chemical Corp., 545 F.3d 733, 742 (9th Cir. 2008) 15 (holding district court properly granted motion for judgment on the pleadings as to 16 unserved defendants where such defendants were in a position similar to served 17 defendants against whom claim for relief could not be stated); Silverton v. Dep’t of 18 Treasury, 644 F.2d 1341, 1345 (9th Cir. 1981). Defendants Beeson and Kissel are in 19 positions similar to Defendants Harlow and Rice in that the claims against them for 20 violating Plaintiff’s due process rights and for retaliation are based on the same facts as 21 Plaintiff's claims against Defendants Harlow and Rice. Accordingly, the claims against 22 Defendants Beeson and Kissel are DISMISSED for failure to state a claim. See 23 Abagninin , 545 F.3d at 742. In light of the above, the Court declines to rule on the motion to dismiss on the 24 25 grounds that Defendants are entitled to qualified immunity as unnecessary. 26 /// 27 /// 28 /// Order Granting Motion to Dismiss P:\PRO-SE\SJ.JF\CR.09\Elrod04584_grant-mtd.wpd 7 CONCLUSION 1 2 For the reasons stated above, the motion to dismiss by Defendants Harlow and 3 Rice is GRANTED for failure to state a claim upon which relief may be granted. (Docket 4 No. 18.) All claims against unserved Defendants Beeson and Kissel are DISMISSED for 5 failure to state a claim. 6 This order terminates Docket No. 18. 7 IT IS SO ORDERED. 8 DATED: 3/9/11 JEREMY FOGEL United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Order Granting Motion to Dismiss P:\PRO-SE\SJ.JF\CR.09\Elrod04584_grant-mtd.wpd 8 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA JAMES B. ELROD, Case Number: CV09-04584 JF Plaintiff, CERTIFICATE OF SERVICE v. D. J. HARLOW, 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. That on 3/11/11 , 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. James B. Elrod H-25268 Pelican Bay State Prison P.O. Box 7500 Crescent City, CA 95532 Dated: 3/11/11 Richard W. Wieking, Clerk
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