Foster v. State of Nevada et al, No. 2:2019cv00969 - Document 25 (D. Nev. 2021)
Court Description: ORDER Denying Defendants' 19 Motion to Dismiss. Signed by Judge Gloria M. Navarro on 9/7/2021. (Copies have been distributed pursuant to the NEF - DRS)
Download PDF
<![CDATA[
Foster v. State of Nevada et al Doc. 25 Case 2:19-cv-00969-GMN-BNW Document 25 Filed 09/07/21 Page 1 of 6 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 AMBER FOSTER, 4 Plaintiff, 5 6 vs. STATE OF NEVADA, et al., 7 Defendants. 8 ) ) ) ) ) ) ) ) ) Case No.: 2:19-cv-00969-GMN-BNW ORDER 9 Pending before the Court is the Motion to Dismiss, (ECF No. 19), filed by Defendants 10 11 Harold Wickham, Dwight Neven, and Richard Ashcraft (collectively, “Defendants”). Plaintiff 12 Amber Foster (“Plaintiff”) filed a Response, (ECF No. 24). Defendants did not file a Reply. 13 For the reasons discussed below, the Court DENIES Defendant’s Motion to Dismiss. 14 15 I. BACKGROUND This case arises from alleged constitutional deprivations that occurred while Plaintiff was 16 incarcerated at Florence McClure Women’s Correctional Center (“FMWCC”). In June 2018, 17 an unknown individual sent Plaintiff mail without a return address. (First Amended Complaint 18 (“FAC”) at 3). Because the mail had no return address, it could not be delivered to Plaintiff. 19 (Id. at 4). On June 21, 208, Officer Parkerson, who was assigned to the mail room, opened an 20 envelope addressed to Plaintiff. (Id.). The envelope contained a card, which appeared to be 21 bubbly as if it was sprayed with something. (Id.). The envelope tested positive for 22 methamphetamine. (Id.). As a result, Plaintiff was charged with possession and sale of 23 intoxicants. (Id. at 5). 24 25 On July 1, 2018, Defendant Richard Ashcraft conducted Plaintiff’s disciplinary hearing. (Id. at 6). During the hearing, Plaintiff claimed that she had no control over what was sent to Page 1 of 6 Dockets.Justia.com Case 2:19-cv-00969-GMN-BNW Document 25 Filed 09/07/21 Page 2 of 6 1 her and argued that she would never have asked for mail to be sent to her anonymously because 2 she knew that it would not be delivered. (Id.). Upon review of Plaintiff’s testimony and the 3 written report from Officer Parkerson, Defendant Ashcraft found Plaintiff guilty of possession, 4 introduction, or sale of any narcotics. (Id.). Plaintiff appealed the guilty finding via the 5 administrative grievance process. (Id. at 7). Her appeal, however, was denied on both levels. 6 (Id. at 8). As a result of the guilty finding, Plaintiff received multiple sanctions including 7 disciplinary segregation for 60 days, Class A State loss for 60 days, loss of personal phone calls 8 for 90 days, loss of canteen for 90 days, and restitution. (Id. at 7). On June 6, 2019, Plaintiff filed a Complaint requesting the Court reverse the guilty 9 10 finding and clear her institutional record of any disciplinary infraction. (See Compl., ECF No. 11 1). At the first screening, the Court dismissed Plaintiff’s case in entirety with leave to amend 12 within 30 days. (See Screening Order on April 13, 2020, ECF No. 5). Plaintiff timely filed an 13 amended Complaint and added new parties to her suit. (See generally FAC, ECF No. 7). The 14 Court conducted a second screening, in which it dismissed Plaintiff’s Fifth Amendment Due 15 Process claims. (See Screening Order on May 28, 2020, 6:9–10, ECF No. 8). Plaintiff’s 16 Fourteenth Amendment Due Process claim, however, proceeded against Defendants Ashcraft, 17 Nevens, and Wickham. (See Id. 6:7–8). Defendants thereafter filed the instant Motion to 18 Dismiss. 19 II. LEGAL STANDARD 20 Dismissal is appropriate under Rule 12(b)(6) where a pleader fails to state a claim upon 21 which relief can be granted. Fed. R Civ. P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 22 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). A pleading must give fair notice of a legally 23 cognizable claim and the grounds on which it rests, and although a court must take all factual 24 allegations as true, legal conclusions couched as a factual allegation are insufficient. Twombly, 25 Page 2 of 6 Case 2:19-cv-00969-GMN-BNW Document 25 Filed 09/07/21 Page 3 of 6 1 550 U.S. at 555. Accordingly, Rule 12(b)(6) requires “more than labels and conclusions, and a 2 formulaic recitation of the elements of a cause of action will not do.” Id. 3 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 4 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 5 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Twombly, 550 U.S. at 555). 6 “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to 7 draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. This 8 standard “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. 9 “Generally, a district court may not consider any material beyond the pleadings in ruling 10 on a Rule 12(b)(6) motion.” Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 11 1555 n.19 (9th Cir. 1990). “However, material which is properly submitted as part of the 12 complaint may be considered.” Id. Similarly, “documents whose contents are alleged in a 13 complaint and whose authenticity no party questions, but which are not physically attached to 14 the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss” without 15 converting the motion to dismiss into a motion for summary judgment. Branch v. Tunnell, 14 16 F.3d 449, 454 (9th Cir. 1994). On a motion to dismiss, a court may also take judicial notice of 17 “matters of public record.” Mack v. S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 18 1986). Otherwise, if a court considers materials outside of the pleadings, the motion to 19 dismiss is converted into a motion for summary judgment. Fed. R. Civ. P. 12(d). 20 If the court grants a motion to dismiss for failure to state a claim, leave to amend should 21 be granted unless it is clear that the deficiencies of the complaint cannot be cured by 22 amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992). Pursuant 23 to Rule 15(a), the court should “freely” give leave to amend “when justice so requires,” and in 24 the absence of a reason such as “undue delay, bad faith or dilatory motive on the part of the 25 movant, repeated failure to cure deficiencies by amendments previously allowed, undue Page 3 of 6 Case 2:19-cv-00969-GMN-BNW Document 25 Filed 09/07/21 Page 4 of 6 1 prejudice to the opposing party by virtue of allowance of the amendment, futility of the 2 amendment, etc.” Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962). 3 III. 4 DISCUSSION Defendants move to dismiss Plaintiff’s Fourteenth Amendment claim, arguing that due 5 process was satisfied during Plaintiff’s prison disciplinary hearing because some evidence 6 supported the disciplinary board’s decision. (Defs.’ Mot. Dismiss (“MTD”) 4:5–7:8). To the 7 extent Plaintiff seeks a reduction of time served, Defendants assert that any such claim would 8 likely be barred by Heck v. Humphrey, 512 U.S. 477 (1994). (Id. 5:6–13). 9 Due process in a prison disciplinary hearing is satisfied if the prisoner receives: (1) a 10 written statement at least twenty-four hours before the disciplinary hearing that includes the 11 charges, a description of the evidence against the prisoner, and an explanation for the 12 disciplinary action taken; (2) an opportunity to present documentary evidence and call 13 witnesses, unless calling witnesses would interfere with institutional security; and (3) legal 14 assistance where the charges are complex or the inmate is illiterate. See Wolff v. McDonnell, 15 418 U.S. 539, 563-70, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974). Furthermore, findings that 16 result in the loss of liberty will satisfy due process if there is some evidence which supports the 17 decisions of the disciplinary board. Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987) (citing 18 Superintendent v. Hill, 472 U.S. 445, 454, 105 S. Ct. 2768, 86 L. Ed. 2d 356 (1985)). 19 In determining whether “some evidence” supports the disciplinary board’s decision, the 20 Ninth Circuit has stated that “the relevant question is whether there is any evidence in the 21 record that could support the conclusion reached by the disciplinary board.” Superintendent, 22 Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455–56, 105 S. Ct. 2768, 2774 (1985). “Nonetheless, 23 there must be some indicia of reliability of the information that forms the basis for prison 24 disciplinary actions.” Cato, 824 F.2d at 705. In Cato, the Ninth Circuit held that there was not 25 enough evidence to support the decision of the disciplinary board. Id. There, “the only Page 4 of 6 Case 2:19-cv-00969-GMN-BNW Document 25 Filed 09/07/21 Page 5 of 6 1 evidence . . . implicating [the plaintiff was] an inmate’s statement that was related to prison 2 officials through a confidential information who had no first hand knowledge of any relevant 3 statements or actions” by the plaintiff. Id. 4 Likewise, there is not enough evidence here to support the disciplinary board’s decision 5 in the present case. Defendant cites to two bare assertions as “some evidence” that justifies the 6 disciplinary board’s decision, namely that: (1) that the mailing was addressed to Foster; and (2) 7 that Foster has a history of abusing methamphetamine. (See MTD 7:2–3). However, not only is 8 such evidence unreliable, but there is no corroborating evidence showing that Plaintiff 9 possessed the substance. See Sanchez v. United States, No. 2: 20-CV-6492-PA (MAR), 2021 10 U.S. Dist. LEXIS 108136, at *16 (C.D. Cal. May 3, 2021) (finding some evidence supported 11 the disciplinary finding because the board relied on “reporting officers’ account of the incident, 12 . . . a memorandum, evidentiary photographs, and Petitioner’s statements to the investigator.”); 13 Lopez v. Armstead, No. 3:13-cv-00294-MMD-VPC, 2015 U.S. Dist. LEXIS 61465, at *20 (D. 14 Nev. Feb. 23, 2015) (concluding that a statement and video of the property room surveillance 15 camera supported the disciplinary board’s finding). The disciplinary board here presents even 16 less evidence than the board in Cato, which relied upon the “uncorroborated hearsay statement 17 of a confidential informant.” Cato, 824 F.2d at 705. Here, the disciplinary board cites two 18 general facts as the justification for its decision. Though the standard is “minimally stringent,” 19 the Ninth Circuit is clear—the disciplinary board must base its opinion on some reliable 20 evidence. See id. The Court accordingly denies Defendant’s Motion to Dismiss.1 21 22 23 24 25 1 Defendant additionally argues that Plaintiff’s request for a reduction of her term of confinement is barred by Heck v. Humphrey, 512 U.S. 477 (1994). Because Plaintiff sues for injunctive relief and the court cannot award injunctive relief in this instance, Defendant moves to dismiss Plaintiff’s claims. (MTD at 7). Plaintiff, however, does not solely seek a reduction of her term of confinement. Plaintiff requests the Court “reverse the guilty finding . . . and [clear] her institutional record of any disciplinary infractions.” (FACT at 9). Accordingly, the Court finds that Plaintiff’s claims are not barred. Page 5 of 6 Case 2:19-cv-00969-GMN-BNW Document 25 Filed 09/07/21 Page 6 of 6 1 2 3 4 IV. CONCLUSION IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss, (ECF No. 19) is DENIED. 7 DATED this _____ day of September, 2021. 5 6 7 ___________________________________ Gloria M. Navarro, District Judge UNITED STATES DISTRICT COURT 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 6 of 6
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
