Plitt v. Gonzalez, et al.

Filing 40

ORDER DENYING Plaintiff's 30 Motion for Discovery without Prejudice; FINDINGS and RECOMMENDATIONS Recommending that Defendants' 23 Motion for Summary Judgment be Granted and that Judgment be Entered in Defendants' Favor signed by Magistrate Judge Larry M. Boyle on 8/26/2011. Referred to Judge B. Lynn Winmill. Objections to F&R due by 9/12/2011. (Sant Agata, S)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
FRESNO DIVISION
BRYANT W. PLITT,

)
)
Plaintiff,
)
)
vs.
)
)
)
FRESNO POLICE OFFICER R.
)
GONZALEZ, et al.,
)
)
Defendants.
)
_________________________________ )

Case No. 1:08-CV-1352-BLW-LMB

ORDER AND REPORT AND
RECOMMENDATION

Currently pending and considered herein is Plaintiff's Motion for Discovery in
Presentation of Video Surveillance (Dkt. 30) and Defendants' Motion for Summary
Judgment (Dkt. 23) referred to the undersigned Magistrate Judge for Report and
Recommendation by Order dated June 4, 2010 (Dkt. 14). Having fully considered the
parties' briefing and the record before it, the Court issues the following Report and
Recommendation and Order.
REPORT AND RECOMMENDATION ON
MOTION FOR SUMMARY JUDGMENT
1.

Background
Plaintiff is an inmate in the custody of the State of California. Plaintiff alleges that

he was arrested on May 3, 1985, for being on school grounds without permission from the
school. The charges included a violation of California Penal Code ("PC") 626.8 which is
REPORT & RECOMMENDATION & ORDER 1

for disruptive presence at school by a "known sex offender." Plaintiff alleges that he was
not and never has been a sex offender, and that the charges were dismissed because he
was found "factually innocent."
Later, when Plaintiff was arrested and convicted of a different offense, he
discovered that his California Department of Corrections and Rehabilitation (CDCR)
classification record contained the statement: "Arrested 9/25/1985 by CASO Fresno for
PC 477(A), Annoy/Molest Children. The dispo was dismissed. UCC of 4/15/1997
elected not to affix 'R' suffix, per archive review of 8/22/2003." Plaintiff alleges that the
title of the charge, "Annoy/Molest Children," is inaccurate and that he has never been
charged with any sex offense or offense against children. He further alleges that,
beginning on November 11, 2003, he has attempted to have the reference removed from
his classification record because it was defamatory and placed him in a dangerous
position with the CDCR. He has been unable to have the reference removed through
administrative channels, or via habeas corpus proceedings he brought in the California
state court system.
In this action, Plaintiff asserts in his Complaint that the incorrect record amounts to
a violation of his constitutional right to due process and free speech, and that the
statements amount to slander. (Complaint, Dkt. 1). Plaintiff also made allegations that the
wrongful entries pose a danger to his safety. (Id.)

REPORT & RECOMMENDATION & ORDER 2

The Court conducted an initial review of Plaintiff's Complaint on September 9,
2009. (Initial Review Order, Dkt. 9). The Court construed Plaintiff's allegations
regarding a danger to his safety as an Eighth Amendment claim, which the Court did not
allow to go forward because Plaintiff failed to allege several necessary facts to state that
claim. The Court granted Plaintiff leave to file a motion to amend to add the missing
factual allegations for this claim, which Plaintiff has not done.1 The Court also dismissed
Plaintiff's free speech and slander claims, and several improper defendants.
The Court, however, allowed Plaintiff's Fourteenth Amendment due process
liberty interest claim for failing to correct the prison records to proceed as against only the
defendants who may be his record custodians, Warden J. Yates, Counselor A. Gipson and
Chief of Inmate Appeals N. Gennis. Defendants move for summary judgment on this
remaining claim.
2.

Standard of Law
Summary judgment is appropriate where a party can show that, as to any claim or

defense, “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). One of the principal purposes of the
summary judgment “is to isolate and dispose of factually unsupported claims . . . .”
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is “not a disfavored procedural

1

This decision does not preclude Plaintiff from filing a separate action alleging the
his Eighth Amendment claim.
REPORT & RECOMMENDATION & ORDER 3

shortcut,” but is instead the “principal tool[ ] by which factually insufficient claims or
defenses [can] be isolated and prevented from going to trial with the attendant
unwarranted consumption of public and private resources.” Id. at 327.
“[T]he mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986). Material facts are those that may affect the outcome of the case. See
id. at 248.
The moving party is entitled to summary judgment if that party shows that each
issue of material fact is not or cannot be disputed. To show the material facts are not in
dispute, a party may cite to particular parts of materials in the record, or show that the
materials cited do not establish the presence of a genuine dispute, or that the adverse party
is unable to produce admissible evidence to support the fact. Fed. R. Civ. P.
56(c)(1)(A)&(B); see T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d
626, 630 (9th Cir. 1987) (citing Celotex, 477 U.S. at 322). The Court must consider “the
cited materials,” but it may also consider “other materials in the record.” Fed. R. Civ. P.
56(c)(3).
Material used to support or dispute a fact must be “presented in a form that would
be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). Affidavits or declarations submitted
in support of or opposition to a motion “must be made on personal knowledge, set out

REPORT & RECOMMENDATION & ORDER 4

facts that would be admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4).
The Court does not determine the credibility of affiants or weigh the evidence set
forth by the non-moving party. All inferences which can be drawn from the evidence
must be drawn in a light most favorable to the nonmoving party. T.W. Elec. Serv., 809
F.2d at 630-31 (internal citation omitted).
Rule 56(e)(3) authorizes the Court to grant summary judgment for the moving
party “if the motion and supporting materials–including the facts considered
undisputed–show that the movant is entitled to it.” The existence of a scintilla of evidence
in support of the non-moving party’s position is insufficient. Rather, “there must be
evidence on which the jury could reasonably find for the [non-moving party].” Anderson
v. Liberty Lobby, 477 U.S. at 252.
3.

Discussion
Defendants move for summary judgment on several grounds. First, they argue that

because Plaintiff is not eligible to be considered for parole for at least 16 years, his due
process liberty interest in parole is not ripe for adjudication. Second, Defendants argue
that if Plaintiff is denied parole at that time based on the information in his record about
the 1985 arrest, his remedy is a habeas corpus action to the California state courts. Third,
Defendants argue that the information in Plaintiff's central file is, in fact, accurate.
Fourth, Defendants argue that regardless, Defendants have no authority to correct a record

REPORT & RECOMMENDATION & ORDER 5

in Plaintiff's file that is managed and provided by the California Department of Justice.
Finally, Defendants argue that Plaintiff received Due Process in the review of his criminal
history.
a.

Prisoner's Liberty Interest in the Expungement of False Prison
Records - the Paine analysis revisited.

Upon initial review, this Court allowed Plaintiff's Fourteenth Amendment liberty
interest claim to go forward based on the federal courts' recognition that a prisoner has a
federal due process right to the expungement of incorrect records contained in a prison
file as set forth in Paine v. Baker, 595 F.2d 197, 201-02 (4th Cir. 1979). Under Paine, an
inmate was entitled to relief if he could show that: (1) the information in question was
actually false; (2) the erroneous information was in his central file; and (3) the erroneous
information was likely to be relied upon "to a constitutionally significant degree." Id.
The Paine test appears to be suffering a death by a thousand cuts, calling its
viability into doubt since nearly its inception. As this Court noted in the Initial Review
Order (Dkt. 9), Paine's validity was first called into doubt the very same year of its
deciding, by Greenholtz v. Inmates of Nebraska Penal, 442 U.S. 1, 99 S. Ct. 2100 (1979).
See Johnson v. Rodriquez, 110 F.3d 299, 309 n. 13 (th Cir. 1997) ("Although Paine has
not been expressly overruled, subsequent Fourth Circuit cases . . . undercut any
contention that the Paine analysis is still viable.")
The United States Supreme Court held in Greenholtz that the United States
Constitution, of its own force, does not create a liberty interest in parole. Id. at 11.
REPORT & RECOMMENDATION & ORDER 6

Thus, a prisoner who does not have a liberty interest in parole under the United States
Constitution "cannot legitimately expect the procedures relating to the grant of parole,
including the maintenance of accurate prison files, to be protected by the Due Process
Clause." Ricchio v. Eichenberger, 2011 WL 43536, *2 (E.D. Cal. 2011) (citing Johnson,
110 F.3d at 309, n. 13).
The United States Supreme Court, however, also held in Greenholtz that a state's
statutory scheme could give rise to a cognizable liberty interest in parole. See Greenholtz,
442 U.S. at 12. And the Ninth Circuit later clarified that "California's parole scheme
gives rise to a cognizable liberty interest in release on parole," and therefore, a prisoner in
California could still bring a procedural due process challenge to a parole decision. Sass
v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1127-28 (9th Cir. 2006). Presumably, the
Paine analysis would still apply to determining a Due Process violation of a California
prisoner's right to the expungement of false records from his or her central file.
However, in 1995, the United States Supreme Court decided Sandin v. Conner,
515 U.S. 472, 115 S. Ct. 2293 (1995), specifically addressing when a state-created liberty
interest in parole implicating the Due Process Clause could exist. In Sandin, a prisoner
sought removal of a misconduct charge from his prison record on the grounds that his due
process rights were violated during the disciplinary hearing on the charge. Sandin, 515
U.S. at 475-77. The Court held that a liberty interest implicating the Due Process Clause
only exists where the prisoner can demonstrate that the State action would “inevitably

REPORT & RECOMMENDATION & ORDER 7

affect the duration of his sentence” or impose “an atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.” Id. at 484, 487. Because the
misconduct charge at issue would not invariably defeat his release on parole, the Court
concluded that the prisoner could not invoke the protections of the Due Process Clause.
Id. at 487.
Many courts in this Circuit, including this district, deciding an inmate's liberty
interest in the expungement of false information contained in his or her central file have
applied Paine as modified by Sandin. That is, the courts require the prisoner to meet the
higher standard of showing that the false information will "inevitably lengthen the
duration of the inmates' incarceration." See Ricchio v. Eichenberger, 2011 WL 43536
(E.D. Cal. 2011); Moreland v. Virga, 2011 WL 476543 (E.D. Cal. 2011); Morales v.
Rubia, 2009 WL 2474743, at *24 (E.D. Cal. 2009); Rio v. Schwarzenegger, 2009 WL
1657438, *6 (C.D. Cal. 2009) (“[A]fter Sandin, an inmate seeking to expunge erroneous
information from his file under the Due Process Clause ‘must show that the false
information will inevitably lengthen the duration of the inmate's incarceration.’ ”); Jacobs
v. Sullivan, No, 2009 WL 1211390, at *7 (E.D. Cal. 2009) (dismissing civil rights
complaint which sought expungement of plaintiff's prison record because “[a]ny concern
that the information will be used against Plaintiff in the future is premature.”); Ellington
v. Director of Corrections, 2009 WL 900168, at *6 (E.D. Cal. 2009) (same); Edwards v.
Marshall, 2006 WL 845645, at *3 (denying relief with respect to an expungement claim

REPORT & RECOMMENDATION & ORDER 8

raised in a habeas action).
Early this year, the United States Court decided Swarthout v. Cooke, 131 S. Ct.
859 (2011), which again seems to call into doubt the viability of Paine, even as modified
by Sandin. Under Swarthout, it is clear that whatever procedural rights a prisoner may
have that are derivative of a liberty interest in parole -- e.g., accurate central file records -may only be challenged in federal court under a due process analysis seemingly
irreconcilable with the Paine/Sandin analysis.
In Swarthout, the United States Supreme Court held:
Whatever liberty interest [in parole] exists is, of course, a state interest created
by California law. There is no right under the Federal Constitution to be
conditionally released before the expiration of a valid sentence, and the States
are under no duty to offer parole to their prisoners. . . . When, however, a State
creates a liberty interest, the Due Process Clause requires fair procedures for
its vindication-and federal courts will review the application of those
constitutionally required procedures. In the context of parole, we have held
that the procedures required are minimal. In Greenholtz, we found that a
prisoner subject to a parole statute similar to California's received adequate
process when he was allowed an opportunity to be heard and was provided a
statement of the reasons why parole was denied. . . . “The Constitution,” we
held, “does not require more.” Ibid. [Appellee prisoners] received at least this
amount of process: They were allowed to speak at their parole hearings and to
contest the evidence against them, were afforded access to their records in
advance, and were notified as to the reasons why parole was denied. . . .
That should have been the beginning and the end of the federal habeas courts'
inquiry into whether [appellees] received due process.
....
The short of the matter is that the responsibility for assuring that the
constitutionally adequate procedures governing California's parole system are
properly applied rests with California courts, and is no part of the Ninth
Circuit's business.
Swarthout v. Cooke, 131 S. C.t at 862 (2011) (citations omitted).
REPORT & RECOMMENDATION & ORDER 9

If the federal due process review of a claim for violation of the state created liberty
interest in parole is limited strictly to what process was due in making the determination,
and was the prisoner afforded that process, then an analysis probing the propriety of a
decision declining to expunge a prisoner's central record appears prohibited. This is
particularly true where the prisoner's right to parole has not yet been considered, and no
process is "due" at all. In other words, the standard requiring a prisoner to show that the
failure to correct the records will "inevitably affect the duration of his sentence," is
difficult, if not impossible, to reconcile with the limited due process review.
The Ninth Circuit has refrained from addressing the issue of whether there is an
independent constitutional due process right in an accurate prison file. See Hernandez v.
Johnston, 833 F.2d 1316, 1319 (9th Cir. 1987) (declining to reach the question of whether
in the absence of the statute, such right is grounded in the due process clause itself ).
Under the current state of the law in this Circuit, there appears to be no such right.
Should the Ninth Circuit decide otherwise, the Paine test could conceivably be revived in
some manner once again.
At this time, however, the Court is of the opinion that Plaintiff's claim of a liberty
interest which implicates the Due Process clause is derivative to his state created liberty
interest in parole only. Accordingly, this Court's review of any violation of this right is
strictly limited to a Due Process analysis if and when Plaintiff is denied his state-created
liberty interest in parole.

REPORT & RECOMMENDATION & ORDER 10

b.

Analysis

There is no dispute that Plaintiff is serving a term of imprisonment of 26 years to
life (Defendants' Undisputed Facts (DUF), ¶ 2), that his minimum parole date is May 2,
2028, (DUF, ¶ 3), and that he will be first eligible to be considered for parole sometime in
April, 2027. See Cal. Penal Code 3041(a). Because Plaintiff is not even eligible to be
considered for parole for almost 16 years, he clearly cannot state a claim for violation of
his due process rights to parole at this time.
The Court would reach the same conclusion even under the Paine/Sandin.
Plaintiff likewise is not able to meet the requirement under that analysis that the allegedly
erroneous information in his central file "inevitably affects the duration of his sentence."
Sandin, 515 U.S. at 484, 487; Morales, 2009 WL 2474743, at 24. Plaintiff has not, and
doubtfully could, set forth any facts at this time -- 16 years before consideration for parole
-- that the information in his central file about the 1985 arrest, even assuming it is false,
"inevitably affects the duration of his sentence."
Further, to the extent that this Court could embark on a Due Process analysis
regarding some independent liberty interest in the accuracy of his central file information,
the record appears to contain no issues of fact in dispute that Plaintiff was provided due
process to attempt to expunge the allegedly false information from his prison record. See
DUF, ¶¶ 5, 7, 8; Plaintiff's Statement of Facts in Dispute (PSOF) (Dkt. 31). Plaintiff does
not challenge the process he was given, only that the results were wrong, which lead to

REPORT & RECOMMENDATION & ORDER 11

the filing of both habeas actions in state court and this action. Id., ¶ 3. This Court could
not overturn the State's substantive decision where only a Due Process protection is
afforded. Swarthout, 131 S. Ct. at 684.
Because the Court concludes the Plaintiff's Fourteenth Amendment claim is
premature, at best, it does not reach the substantive issue of whether the information
contained in Plaintiff's central file is in fact false, which Defendants dispute.
For the foregoing reasons, it is hereby recommended that Defendants' Motion for
Summary Judgment be granted on Plaintiff's Fourteenth Amendment claim asserting a
violation of due process.
Motion for Discovery
Plaintiff alleges, and the record indicates, that he was the victim of a battery in
January of this year. He requests a copy of the surveillance video from that assault
claiming that it is important evidence to prove his claim in this action that his prison
records contain inaccurate and inflammatory information. (Dkt. 30). Because the Court
recommends that Defendant's Motion for Summary Judgment be granted, Defendant's
motion for discovery is denied without prejudice. If the district judge reaches a different
conclusion than set forth in this Report and Recommendation, and this action is allowed
to proceed, Plaintiff may renew his motion for discovery of the surveillance video tape.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED Plaintiff's Motion for Discovery

REPORT & RECOMMENDATION & ORDER 12

(Dkt. 30) is DENIED without prejudice.
RECOMMENDATION
IT IS HEREBY RECOMMENDED that Defendants' Motion for Summary
Judgment (Dkt. 23) be GRANTED, and that judgment be entered in Defendants' favor
accordingly.
Written objections to this Report and Recommendation must be filed within
fourteen (14) days of the date it is entered on the docket, pursuant to 28 U.S.C. §
636(b)(1). The document should be captioned “Objections to Magistrate Judge’s Report
and Recommendation.” The parties are advised that as result of failing to do so, that
party may waive the right to raise factual and/or legal objections to the United States
Court of Appeals for the Ninth Circuit.
DATED: August 26, 2011.

Honorable Larry M. Boyle
United States Magistrate Judge

REPORT & RECOMMENDATION & ORDER 13