Eddie Corrales v. M Vega et al

Filing 17

ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge James V. Selna for Report and Recommendation (Issued) 6 and supplemental Report and Recommendation (Issued) 12 . (ib)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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EDDIE CORRALES,

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Plaintiff,

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vs.
M. VEGA, ET AL.,

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Defendants.

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CASE NO. ED CV 12-01876 JVS (RZ)
ORDER ACCEPTING FIRST
INTERIM REPORT AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE

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The Court has reviewed the file in this matter, and has read and reviewed the

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First Interim Report and Recommendation of United States Magistrate Judge, including the

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separately-filed Supplement to that Report. Further, the Court has engaged in a de novo

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review of those portions of the Report and the Supplement to which Plaintiff has

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thoughtfully objected with skill seldom displayed by pro se litigants. The Court needs no

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further discussion to accept the Report’s recommendation to dismiss the complaint

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(1) without leave to amend as to Claim 2 (Due Process), and (2) with leave to amend as to

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Claim 3 (Cruel And Unusual Punishment). But the fate of Claim 1, for which the

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Magistrate Judge has recommended dismissal without leave to amend, merits the following

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additional consideration.

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I.

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INTRODUCTION

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In Claim 1, Plaintiff alleges that prison guards framed him, resulting in his

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“validation,” i.e., a finding that he is an active criminal gang associate. As a result, he was

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placed, and has repeatedly been retained, in the Security Housing Unit (SHU). All the

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while, he forgoes the good-time sentencing credit that he otherwise would earn. CAL.

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CODE REGS. tit. 15, § 3043.4(b). The guards did this, Plaintiff alleges, in retaliation for his

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pursuit of First Amendment-protected grievance activities. The critical question raised by

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the Magistrate Judge in the Report and Supplement is whether the “favorable termination

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rule” of Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994), and

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Heck’s progeny bars such a claim so long as the underlying validation has not yet been set

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aside. To decide this question, the Court must examine (1) the elements of a successful

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retaliation claim, (2) the nature and scope of the Heck favorable termination rule and, as

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persuasive but not binding authority, (3) the outcomes in the few legally and factually

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similar cases in this and other District Courts in California.

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II.

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PRISONERS’ RETALIATION CLAIMS, AND BRUCE V. YLST

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Allegations of retaliation against a prisoner’s First Amendment rights to

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speech or to petition the government may support a section 1983 claim. See Pratt v.

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Rowland, 65 F.3d 802, 807 (9th Cir. 1995). In the prison context, a viable claim of First

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Amendment retaliation entails five basic elements:

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(1)

a state actor took some adverse action against an inmate

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(2)

because of

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that prisoner’s protected conduct;

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(4)

such action chilled the inmate’s exercise of his First Amendment rights (although
a complete silencing of the prisoner is not required); and

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(5)

the defendants took their adverse action without legitimate penological goals.
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See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (stating, as element 5, the

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result-oriented test whereby plaintiff must show “the action did not reasonably advance a

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legitimate correctional goal”); Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003) (stating,

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as element 5, the intent-oriented test whereby “the prisoner plaintiff ‘bears the burden of

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pleading and proving the absence of legitimate correctional goals for the conduct of which

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he complains’”), quoting Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). An allegation

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of retaliation against a prisoner for filing a prison grievance is sufficient to support a claim

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under section 1983. Bruce, 351 F.3d at 1288.

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Plaintiff relies heavily on the Bruce case, and with good reason. Factually,

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it is quite similar to his own case. Like Plaintiff, Vincent Bruce was “validated” as a prison

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gang associate. As with Plaintiff, the validation occurred after Bruce engaged in protected

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First-Amendment conduct, although in Bruce’s case it was permissible “jailhouse

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lawyering” rather than filing grievances. Like Plaintiff, Bruce claimed that his validation

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was undertaken as retaliation for his protected conduct. Although the Bruce court affirmed

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the district court’s dismissal of Bruce’s due-process claim challenging the same validation,

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noting that at least “some evidence” supported the gang finding, the appellate court

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reversed and remanded as to the retaliation claim. Because Bruce allowed a prisoner’s

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retaliation claim even as it disallowed a due-process claim, Plaintiff strongly suggests, this

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Court likewise must permit Plaintiff to proceed on at least his retaliation claim.

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Legally, however, Bruce is of limited use for one simple reason. It neither

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addresses the favorable termination rule nor even mentions the fact that Vincent Bruce lost

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good-time credits due to his gang validation. Here, in contrast, the favorable termination

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rule already has been extensively discussed as a potential impediment to Claim 1. Bruce

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cannot serve as binding precedent for the non-applicability of a rule that it never even

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addressed. The Court next turns to that very rule.

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III.

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THE FAVORABLE TERMINATION RULE
In Heck, the Supreme Court announced the favorable termination rule as

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follows:

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We hold that, in order to recover damages for allegedly unconstitutional

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conviction or imprisonment, or for other harm caused by actions whose

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unlawfulness would render a conviction or sentence invalid, FN6 a § 1983

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plaintiff must prove that the conviction or sentence has been [overturned].

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512 U.S. at 486-487 (emphasis added). Footnote 6 made clear that “invalidity” carries a

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broad meaning:

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An example of this . . . — a § 1983 action that does not seek damages directly

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attributable to conviction or confinement but whose successful prosecution

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would necessarily imply that the plaintiff's criminal conviction was wrongful

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— would be the following: A state defendant is convicted of and sentenced

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for the crime of resisting arrest . . . . He then brings a § 1983 action against

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the arresting officer, seeking damages for violation of his Fourth Amendment

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right to be free from unreasonable seizures. In order to prevail in this § 1983

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action, he would have to negate an element of the offense of which he has

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been convicted. [Therefore,] the § 1983 action will not lie.

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Id. at 486 n.6.

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The high court extended the rule to prison disciplinary findings in Edwards

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v. Balisok, 520 U.S. 641, 117 S. Ct. 1584, 137 L. Ed. 2d 906 (1997). The plaintiff in that

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case, Jerry Balisok, lost 30 days of good-time credit due to four prison disciplinary

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findings. He brought a § 1983 action in federal court, claiming that the disciplinary
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proceedings violated his right to due process. “Taking account of . . . Preiser v. Rodriguez,

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411 U.S. 475, 500, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973), which held that the sole

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remedy in federal court for a prisoner seeking restoration of good-time credits is a writ of

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habeas corpus, Balisok’s amended complaint did not request restoration of the lost credits.

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(As the District Court noted, however, he expressly reserved the right to seek that relief in

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an appropriate forum.)” Balisok, 520 U.S. at 643. Balisok left unclear whether the

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favorable termination rule was limited to claims that, if upheld, would result in the

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restoration of good-time credits or otherwise result in shortened stay in prison – although

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Balisok’s reference to Preiser arguably suggested such a limitation.

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In Wilkinson v. Dotson, 544 U.S. 74, 80-82, 125 S. Ct. 1242, 161 L. Ed. 2d

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253 (2005), the Supreme Court clarified that, indeed, the rule bars only claims that, if

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successful, would shorten the inmate’s time in prison. In other words, so long as the length

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of a prison term would not necessarily be affected by the outcome of this federal case, a

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prisoner could proceed pursuant to § 1983. But as Magistrate Judge Gregory G. Hollows

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noted in the opinion excerpted in the Supplement, “if the disciplinary conviction, resulting

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in credit loss to a determinate sentence or a much lesser chance of parole suitability for an

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indeterminate sentence was found invalid, per se, such a result would necessarily affect the

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length of the prison term.” Avery v. Heintschel, No. CV 06-0041 LKK (GGH), 2008

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WL 314564 (E.D. Cal. 2008), at *5 (emphasis added).

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IV.

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DISCUSSION

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Plaintiff, in objecting to the Supplement, presents two noteworthy arguments

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against applying the favorable termination rule to Claim 1. (If one includes his reliance on

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the factually similar Bruce, then he presents three such arguments. As noted above,

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however, the Court cannot construe Bruce as binding precedent for the inapplicability of

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a rule that it never even mentioned.) First, he asserts that upholding his retaliation claim

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would not necessarily imply the invalidity of the underlying gang-status validation. He
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explains that he is not challenging all three of the three items of gang evidence that state

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regulations require to support a validation. See CAL. CODE REGS. tit. 15, § 3378(c)(3)

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(validation “requires at least three (3) independent source items of documentation

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indicative of actual membership,” one of which must establish a “direct link” to a known

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gang member). Thus, he says, at least one item of gang evidence – and therefore “some

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evidence” – would remain untainted, even if he wins his claim. Plaintiff then points to

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habeas cases rejecting evidence-based challenges to prison disciplinary findings whenever

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“some evidence,” even if relatively weak, supports the result. Objs. To Supp. Report at 9

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(¶¶ 23-24), 10 (¶ 26). Because Plaintiff’s success in the present case still would leave at

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least “some evidence” to support the finding, he reasons, that success would not necessarily

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imply the finding’s invalidity.

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This first argument is unavailing for several independent reasons. The first

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is that it is simply untrue that Plaintiff is not attacking all three “source items” used against

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him. He expressly challenges, as improperly included for retaliatory reasons, the inclusion

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of all three. The first is a tattoo, which he explains is a symbol representing the number 13

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in Mayan culture. Plaintiff alleges that he had the tattoo before the underlying incidents,

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and that the prison-guard defendants first “noticed” it as a sign of gang membership only

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after he began filing the underlying grievances. See Comp. ¶¶ 17, 23-26. The second

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source item, he alleges, and apparently one that supplied the one necessary “direct link” to

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known gang members, see CAL. CODE REGS. tit. 15, § 3378(c)(3), is a list of names found

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in his cell. But Plaintiff expressly alleges that the use of this list against him violates a

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2004 legal settlement. Comp. ¶¶ 27-30. The third source item is a bandana, again

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displaying a Mayan symbol for 13, which he had stored in his personal property in 2008

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and had gone unremarked-upon in several guards’ searches. Once he began filing the

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underlying grievances, however, the bandana was “found” and cited as evidence of his

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gang membership. In sum, if Plaintiff proves his allegations, then not even “some

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evidence” will remain untainted.

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The second reason why this “some evidence” argument is unpersuasive is that

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the “some evidence” standard would not apply here in the way Plaintiff assumes. The

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California regulations are quite specific in requiring three “source items” and in requiring

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that one item supply a “direct link” to a known gang member. See CAL. CODE REGS.

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tit. 15, § 3378(c)(3). In other words, gang-status validation is a special, stricter procedure

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requiring more than a general preponderance of the evidence, as might be the case at a

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hearing to determine whether a prisoner started a fight or disobeyed a lawful order. Stated

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another way, there would at least need to be “some evidence” of each of the three predicate

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findings. If Plaintiff could show that even one of the “source items” was used against him

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improperly, for retaliatory reasons, then it appears to this Court that he could be entitled

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to relief from the validation.

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Third, and most importantly, even if “some evidence” somehow remained in

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the wake of a victory by Plaintiff, such could not prevent the necessary implication that the

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gang-membership finding was invalid. Balisok illustrates this point. Jerry Balisok argued

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that a judgment in his favor would not necessarily imply the invalidity of his loss of good-

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time credits because the state court followed a “some or any evidence” standard and, thus,

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the prison hearing’s results could survive. The Supreme Court held that this possibility

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was irrelevant, because Balisok’s “basis for attacking the judgment is not insufficiency of

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the evidence.” 520 U.S. at 648. Here, similarly, winning the retaliation claim means

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proving that the action was taken without any legitimate penological goal and thus would

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not have occurred but for retaliatory motives. An action thus found by a court to have been

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taken for retaliatory reasons is surely “invalid” in any reasonable interpretation of the term.

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Plaintiff’s second noteworthy argument against the applicability of the

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favorable termination rule is that he does not seek reinstatement of good-time credits, at

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least not here and now. But like Jerry Balisok, who expressly reserved the right to file a

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subsequent action seeking credit, Plaintiff would become entitled to those credits if this

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Court were to uphold his retaliation claim and, as noted above, this entitlement necessarily

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implies the invalidity of the gang-status validation.
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This Court’s decision is consistent with the handful of unpublished decisions

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in this District and other California district courts addressing whether the favorable

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termination rule bars inmates’ retaliation claims targeting disciplinary findings that resulted

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in losses of good-time credits. All but one agree that the rule bars such claims. See Brown

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v. Kavanaugh, No. CV 08-1764 LJO (BAM), 2012 WL 4364120 (E.D. Cal. Sept. 21,

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2012), at *9 (although “Plaintiff argues that he is not seeking restoration of the time credits

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forfeited due to being found guilty of the rule violations,” upholding his claim of being

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falsely charged “would necessarily imply the invalidity of” the finding and, hence, the loss

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of credits) (permitting other retaliation claims to proceed because those upholding those

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claims would not imply the invalidity of any loss of good-time credits); Harbridge v.

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Schwarzenegger, No. CV 07-4486 GW (SH), 2010 WL 2889522 (C.D. Cal. 2010), at *1

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n.2 (noting prior dismissal of retaliation claim,1 among others, because granting relief

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“would ‘necessarily imply the invalidity’ of a deprivation of good-time credits); Martin v.

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Sullivan, No. CV 06-0972 OWW (DLB), 2007 WL 2904285 (E.D. Cal. 2007), at *8

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(rejecting inmate’s claim that he was framed for retaliatory reasons, where Plaintiff lost

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good-time credits due to the targeted disciplinary finding and had not yet shown that the

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credits had been restored); see also Glass v. Fields, No. CV 09-0098 AWI (BAM), 2012

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WL 1898899 (E.D. Cal. May 23, 2012), at *12 (dicta) (permitting retaliation claim to

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proceed because inmate was “[a]ssessed ZERO days forfeiture” of sentencing credit, but

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appearing to accept that the favorable termination rule would have barred that claim if the

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inmate had lost good-time credit as a result of the targeted finding); but see Pezant v.

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Stainer, No. CV 11-1819 LJO (JLT), 2012 WL 2886698 (E.D. Cal. 2012) , at *5 (habeas

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action) (permitting habeas jurisdiction for due process challenge to gang validation, but

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rejecting habeas jurisdiction – and thus indicating propriety of civil-rights action – for

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Although this 2010 order refers generally to a “First Amendment” claim, that claim
indeed was based on retaliation. This is spelled out on pages 7-8 of the Amended Report And
Recommendation – not available on Westlaw – filed in Harbridge on July 3, 2008 and accepted
on August 19, 2008. See docket in Harbridge, supra.
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retaliation challenge to same validation as having “no bearing on the length of Petitioner’s

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sentence”). Although these cases are not binding, they illustrate a general agreement

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favoring the applicability of the favorable termination rule to bar claims like Claim 1.

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V.

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CONCLUSION

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Plaintiff’s success on his retaliation claim will mean he has proven that the

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decision to pursue him for gang-status validation was made without any legitimate

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penological goal – that is, that the decision was based principally upon retaliatory animus

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and would not have occurred but for that animus. Such a decision is perforce “invalid” in

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any reasonable sense of the term. In turn, Plaintiff would become entitled to recoup good-

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time credits from the time of his gang-status validation and placement in SHU. Although

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Plaintiff pointedly disclaims seeking restoration of good-time credits in this action, similar

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to the inmate in Balisok, that does not change the fact that he would be entitled to them in

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another proceeding. The majority of courts that have decided similar challenges have

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agreed that the favorable termination rule bars retaliation claims like Plaintiff’s.

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With the foregoing observations, the undersigned accepts the findings and
recommendations in the First Interim Report and its Supplement.

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Accordingly, it is ORDERED that the initial complaint is dismissed (a) with

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leave to amend as to Claim 3, asserting conditions of confinement that violate the Eighth

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Amendment, and (b) without leave to amend as to Claims 1 and 2, asserting, respectively,

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retaliation in violation of the First Amendment and violations of due process under the

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Fourteenth Amendment.

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When Judgment is entered, the Judgment shall reflect this ruling of the Court.

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DATED: January 28, 2013

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JAMES V. SELNA
UNITED STATES DISTRICT JUDGE

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