Smith v. Hubbard et al

Filing 18

FINDINGS and RECOMMENDATIONS Recommending Dismissal of Action For Failure to State a Claim Under Section 1983, signed by Magistrate Judge Sheila K. Oberto on 3/8/2012, referred to Judge Ishii. Objections to F&R Due Within Thirty Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ED DWAYNE SMITH,

CASE NO. 1:10-cv-00576-AWI-SKO PC

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Plaintiff,

FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF ACTION
FOR FAILURE TO STATE A CLAIM UNDER
SECTION 1983

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v.
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SUSAN L. HUBBARD, et al.,
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(Doc. 15)
Defendants.

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THIRTY-DAY OBJECTION DEADLINE
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Findings and Recommendations Following Screening of Amended Complaint
I.

Screening Requirement and Standard

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Plaintiff Ed Dwayne Smith, a state prisoner proceeding pro se and in forma pauperis, filed

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this civil rights action pursuant to 42 U.S.C. § 1983 on January 19, 2010. On April 8, 2011, the

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Court dismissed Plaintiff’s complaint, with leave to amend, for failure to state a claim. Plaintiff filed

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an amended complaint on May 2, 2011.

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A complaint must contain “a short and plain statement of the claim showing that the pleader

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is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, __, 129 S.Ct. 1937, 1949 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While a plaintiff’s

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allegations are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v.

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Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation

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omitted).
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Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor, but the pleading standard is now

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higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), and to survive

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screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to

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allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged,

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Iqbal, 556 U.S. at __, 129 S.Ct. at 1949 (quotation marks omitted); Moss v. U.S. Secret Service, 572

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F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not

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sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. Iqbal,

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556 U.S. at __, 129 S.Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969.

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II.

Discussion

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A.

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Plaintiff, who is currently incarcerated at Calipatria State Prison, brings this action against

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Correctional Officers E. Felix and F. Field; Lieutenant G. Tracy; Associate Warden R. Lopez; and

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Appeals Coordinators J. Jones and Hicinboton for violating his rights in 2007 and 2008 while he was

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housed at California State Prison-Corcoran. Based on Plaintiff’s allegations, which are summarized

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in the following paragraphs, it appears that Plaintiff is alleging claims for violation of the Due

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Process Clause of the Fourteenth Amendment and for violation of the Eighth Amendment.

Summary of Allegations

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On January 19, 2007, inmate Waltower was murdered at CSP-Corcoran. On July 18, 2007,

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Defendant Felix, using false information, had Plaintiff removed from general population during the

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course of the investigation into inmate Waltower’s murder. Removal from general population

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deprived Plaintiff of the privileges he had been earning as a result of his work/activity group.

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On July 31, 2007, Defendant Felix gave Plaintiff a confidential informant disclosure form,

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which Felix had authored and which contained false information. On September 12, 2007,

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Defendant Felix gave Plaintiff another confidential disclosure form, which set forth the sole evidence

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used to charge Plaintiff with murder.

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In September 2007, Defendant Field, relying on false statements, signed off on the order

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retaining Plaintiff in administrative segregation.

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On November 6, 2007, M. Ledesma, a classification services representative, “produced” a

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classification chrono which stated that Defendant Felix had authored a confidential memorandum

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on July 26, 2007, noting three confidential informants. (Amend. Comp., court record p. 4.) The

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confidential memorandum was placed in Plaintiff’s central file.

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On January 24, 2008, in front of a television camera, Defendant Field disregarded a case

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counselor’s statement that Plaintiff had nothing to do with the first and second confidential

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informants’ statements, and he followed Plaintiff to Plaintiff’s cell in order to ensure that Plaintiff’s

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rules violation report (RVR) was finalized and heard that day. On the same day, Defendant Lopez

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signed off on the RVR, despite having obtained information and viewed statements made during the

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filming session.

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On February 20, 2008, Plaintiff received the investigative employee’s statement. Plaintiff

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alleges that Defendant Tracy changed Plaintiff’s witness questions to set up the third confidential

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informant’s motive and false statements against Plaintiff.

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On February 21, 2008, Plaintiff was given two more confidential informant disclosure forms

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by Defendant Felix; one was signed by Defendant Felix and dated February 26, 2007, and the other

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was signed by Sgt. Babb and dated March 2, 2007. On February 22, 2008, Defendant Felix admitted

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that other than the statement of the third confidential informant, there was nothing linking Plaintiff

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to inmate Waltrip’s murder.

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On February 22, 2008, Defendant Tracy, who was the senior hearing officer, found Plaintiff

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guilty of battery on an inmate with serious bodily injury based on false, contradictory evidence.

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Plaintiff alleges that Defendant Tracy disregarded the written testimony of three religious chaplains

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which contradicted the third informant’s statement.

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On March 10, 2008, Defendant Tracy altered the confidential informant disclosure statements

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and altered parts of the rules violation report. On April 1, 2008, Defendant Field signed off on

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Plaintiff’s final RVR, which he knew to be false and altered.

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On April 20, 2008, Plaintiff submitted an inmate appeal, which was mailed back to him by

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Defendant Hicinbotin on May 3, 2008, because it was missing documentation. On May 16, 2008,

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Plaintiff sent his appeal back to Defendant Hicinbotin with a trust account withdrawal slip and a
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notice of denial of photocopy services, in an effort to obtain the necessary documentation to support

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the appeal. On June 24, 2008, Defendant Jones disregarded a note attached to the RVR directing that

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it be appended to Plaintiff’s appeal, which was in the office with Defendant Hicinbotin.

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Plaintiff’s original appeal was never returned to him and on July 3, 2008, Defendant

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Hicinbotin issued a memorandum to Plaintiff stating that there were no pending disciplinary appeals

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and citing to time constraints.

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Finally, Plaintiff alleges that all of the defendants knew he was a double open-heart surgery
patient and they disregarded his medical status.
B.

Due Process Claims
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Disciplinary Report and Hearing Issues

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Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or other

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federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092

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(9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v.

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Williams, 297 F.3d 930, 934 (9th Cir. 2002). To state a claim, Plaintiff must demonstrate that each

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defendant personally participated in the deprivation of his rights, Iqbal, U.S. at __, 129 S.Ct. at 1949;

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Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of

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Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones, 297 F.3d at 934, and the claim must be

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supported by more than legal conclusions, threadbare recitals of elements, or mere conclusory

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statements, Iqbal, 556 U.S. at __, 129 S.Ct. at 1949 (citation omitted).

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The Due Process Clause protects Plaintiff against the deprivation of liberty without the

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procedural protections to which he is entitled under the law. Wilkinson v. Austin, 545 U.S. 209,

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221, 125 S.Ct. 2384 (2005). To state a claim, Plaintiff must first identify the interest at stake.

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Wilkinson, 545 U.S. at 221. Liberty interests may arise from the Due Process Clause or from state

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law. Id. The Due Process Clause itself does not confer on inmates a liberty interest in avoiding more

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adverse conditions of confinement, id. at 221-22 (citations and quotation marks omitted), and under

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state law, the existence of a liberty interest created by prison regulations is determined by focusing

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on the nature of the condition of confinement at issue, id. at 222-23 (citing Sandin v. Conner, 515

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U.S. 472, 481-84, 115 S.Ct. 2293 (1995)) (quotation marks omitted). Liberty interests created by
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prison regulations are generally limited to freedom from restraint which imposes atypical and

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significant hardship on the inmate in relation to the ordinary incidents of prison life. Wilkinson, 545

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U.S. at 221 (citing Sandin, 515 U.S. at 484) (quotation marks omitted); Myron v. Terhune, 476 F.3d

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716, 718 (9th Cir. 2007).

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Plaintiff again fails to identify the existence of any protected liberty interest, Wilkinson, 545

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U.S. at 221; Sandin, 515 U.S. at 484; Myron, 476 F.3d at 718, and, alternatively, Plaintiff fails to

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identify with any circumstances which would support a claim even in the absence of an identified

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interest, Burnsworth v. Gunderson, 179 F.3d 771, 775 (9th Cir. 1999). Furthermore, Plaintiff has

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not shown that he was denied the minimal protections he was due under federal law. Wolff v.

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McDonnell, 418 U.S. 539, 563-71, 94 S.Ct. 2963 (1974); Walker v. Sumner, 14 F.3d 1415, 1420

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(9th Cir. 1994), abrogated on other grounds by Sandin, 515 U.S. 472.

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Although Plaintiff complains of the reliance on the third confidential informant’s statement

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and the disregard of other evidence, the hearing officer is entitled to weigh the evidence and assess

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the credibility of witnesses. Superintendent v. Hill, 472 U.S. 445, 455, 105 S.Ct. 2768 (1985). The

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Constitution requires only that there be some evidence to support the conviction and the standard

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is not stringent. Hill, 472 U.S. at 455-56. Here, Plaintiff’s allegations indicate there was some

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minimal evidence supporting his disciplinary conviction, and Plaintiff’s disagreement with hearing

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officer’s weight and credibility assessments will not support a federal claim. Id. Finally, Plaintiff’s

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unsupported allegations of falsity, which are sprinkled throughout his brief complaint, amount to

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nothing more than legal conclusions, which cannot support a plausible claim for relief. Iqbal, 556

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U.S. at __, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969.

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2.

Inmate Appeals Process

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The existence of a prison inmate appeals process does not create any substantive rights and

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Plaintiff may not bring a due process claim against Defendants Jones and Hicinbotin based on how

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they processed or resolved his inmate appeal. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003);

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Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); Massey v. Helman, 259 F.3d 641, 647 (7th Cir.

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2001).

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C.

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Finally, to maintain an Eighth Amendment medical care claim, Plaintiff must show deliberate

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indifference to his serious medical needs. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citing

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Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 295 (1976)) (quotation marks omitted). The two-part

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test for deliberate indifference requires Plaintiff to show (1) a serious medical need by demonstrating

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that failure to treat his condition could result in further significant injury or the unnecessary and

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wanton infliction of pain, and (2) the defendant’s response to the need was deliberately indifferent.

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Jett, 439 F.3d at 1096 (quotation marks and citation omitted).

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Eighth Amendment Claim

Plaintiff’s conclusory allegation that Defendants disregarded his medical condition does not

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support a claim for relief. Iqbal, 556 U.S. at __, 129 S.Ct. at 1949; Moss, 572 F.3d at 969.

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III.

Conclusion and Recommendation

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The Court finds that Plaintiff’s amended complaint does not state any claims upon which

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relief may be granted under section 1983. Plaintiff was previously given notice of these deficiencies

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and an opportunity to amend, and therefore, further leave to amend is not warranted. Lopez v.

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Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir.

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1987).

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Accordingly, it is HEREBY RECOMMENDED that this action be DISMISSED, with
prejudice, for failure to state a claim under section 1983.

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These Findings and Recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30)

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days after being served with these Findings and Recommendations, Plaintiff may file written

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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d

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1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:
ie14hj

March 8, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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