Jerry Cobb v. Kathy Mendoza-Powers et al

Filing 39

FINDINGS and RECOMMENDATIONS Recommending Dismissing Certain Claims and Defendants, signed by Magistrate Judge Barbara A. McAuliffe on 4/5/2012, referred to Judge O'Neill. 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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JERRY COBB,

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Plaintiff,

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CASE NO. 1:10-cv–00642-LJO-BAM PC
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSING CERTAIN
CLAIMS AND DEFENDANTS

v.
KATHY MENDOZA-POWERS, et al.,

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(ECF No. 33)

Defendants.

OBJECTIONS DUE WITHIN THIRTY DAYS
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Plaintiff Jerry Cobb is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is the First Amended

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Complaint, filed March 6, 2012, and Defendants’ Motion to Dismiss, filed March 19, 2012.1 (ECF

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Nos. 33, 37.)

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I.

Screening Requirement

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks

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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

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In determining whether a complaint states a claim, the Court looks to the pleading standard

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under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain “a short and

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Defendants’ Motion to Dismiss shall be addressed by separate findings and recommendations after Plaintiff
has had an opportunity to file an opposition.

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plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

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“[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it

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demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v.

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Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S.

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544, 555, 127 S. Ct. 1955 (2007)).

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Under section 1983, Plaintiff must demonstrate that each defendant personally participated

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in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires

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the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S. Ct.

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at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). “[A] complaint [that]

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pleads facts that are ‘merely consistent with’ a defendant’s liability . . . ‘stops short of the line

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between possibility and plausibility of entitlement to relief.’” Iqbal, 129 S. Ct. at 1949 (quoting

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Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations

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contained in a complaint, a court need not accept a plaintiff’s legal conclusions as true. Iqbal, 129

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S. Ct. at 1949. “Threadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Id. (quoting Twombly, 550 U.S. at 555).

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II.

Complaint Allegations

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Plaintiff is in the custody of the California Department of Corrections and Rehabilitation

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(“CDCR”) and is incarcerated at Folsom State Prison. Plaintiff brings this action against Defendants

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Jeanne Woodford, Kathy Mendoza-Powers, J. Reynolds, and J. Chastagner alleging violations of his

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right to religious freedom under the First Amendment, cruel and unusual punishment in violation

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of the Eighth Amendment, due process in violation of the Fourteenth Amendment, and cruel and

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unusual punishment in violation of the California Constitution. Plaintiff seeks a declaratory

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judgment, injunctive relief, and monetary damages.

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Plaintiff states that on April 4, 2003, he took a vow not to comb or shave his hair as a symbol

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of his relationship with God. At the time Plaintiff made this vow, the CDCR was enforcing a

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grooming policy providing no exemptions for prisoners with religious beliefs. After the prison

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grooming policy was found to be unconstitutional in Warsoldier,2 on November 15, 2005, Defendant

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Mendoza-Powers continued to enforce the policy. Defendant Mendoza-Powers authorized a

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lieutenant under her command to generate a memo notifying staff and inmates that the grooming

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policy would continue to be enforced at Avenal State Prison, where Plaintiff was incarcerated.

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On December 16, 2005, Defendant Reynolds told Plaintiff to cut his hair or he would receive

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a disciplinary violation. Plaintiff refused to comply. On December 20, 2005, Defendant Reynolds

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issued Plaintiff a counseling chrono, the first step in the disciplinary process. Defendant Chastagner

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issued a rule violation report on December 26, 2005. On January 3, 2006, Plaintiff was found guilty

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of a rule violation for failing to cut his hair. Plaintiff was required to perform forty hours extra duty,

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which consisted of washing toilets, scrubbing floors, washing walls and tables. While performing

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these duties, Plaintiff was denied access to chapel services, recreational activities, phone calls, etc.

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Around January 19, 2006, Defendant Mendoza-Powers was notified regarding the

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unconstitutional grooming policy and called a meeting to discuss revisions to the grooming policy.

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Plaintiff filed an inmate appeal, which was reviewed by Defendant Mendoza-Powers at the second

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level of review and denied on January 26, 2006. On February 3, 2006, Plaintiff filed an appeal

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regarding the rule violation and punishment.

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Around March 20, 2006, Plaintiff’s appeal was submitted to the third level of review and

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denied by Defendant Woodford. Plaintiff believes that the disciplinary documentation is periodically

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reviewed by prison officials to determine his housing and placement and will have negative

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consequences for Plaintiff as long as it is in his central file.

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For the reasons stated below, Plaintiff’s First Amended Complaint states a claim against

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Defendants Mendoza-Powers, Reynolds, and Chastagner for violations of the Free Exercise Clause

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of the First Amendment, but fails to state any other claims under section 1983.

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III.

Discussion

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A.

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“Prison walls do not form a barrier separating prison inmates from the protections of the

First Amendment

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The Court assumes that Plaintiff is referring to W arsoldier v. W oodford, 418 F.3d 989, 994 (9th Cir.

2005).

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Constitution.” Turner v. Safley, 482 U.S. 78, 84 (1987). Nevertheless, prisoners’ constitutional

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rights are subject to substantial limitations and restrictions in order to allow prison officials to

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achieve legitimate correctional goals and maintain institutional security. O’Lone v. Estate of

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Shabazz, 482 U.S. 342, 348 (1987); Bell v. Wolfish, 441 U.S. 529, 546-47 (1979).

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“Inmates . . . retain protections afforded by the First Amendment, including its directive that

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no law shall prohibit the free exercise of religion.” O’Lone v. Estate of Shabazz, 482 U.S. 342, 348

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(1987) (internal quotations and citations omitted). The protections of the Free Exercise Clause are

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triggered when prison officials substantially burden the practice of an inmate’s religion by preventing

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him from engaging in conduct which he sincerely believes is consistent with his faith. Shakur v.

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Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008); Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir.

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1997), overruled in part by Shakur, 514 F.3d at 884-85.

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To receive protection under the First Amendment Free Exercise Clause, the proffered belief

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must be sincerely held and rooted in religious belief. Malik v. Brown, 16 F.3d 330, 333 (9th Cir.

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1994). At the pleading stage, Plaintiff has sufficiently alleged facts to establish that he would not

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cut his hair due to a sincerely held religious belief.

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Plaintiff alleges that Defendants Mendoza-Powers and Woodford violated his First

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Amendment rights by reviewing and denying his inmate greivance. The argument that anyone who

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knows about a violation of the Constitution, and fails to cure it, has violated the Constitution himself

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is not correct. “Only persons who cause or participate in the violations are responsible. Ruling

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against a prisoner on an administrative complaint does not cause or contribute to the violation.

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Greeno v. Daley, 414 F.3d 645, 656-57 (7th Cir.2005) accord George v. Smith, 507 F.3d 605, 609-10

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(7th Cir. 2007); see Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011) (“Prison grievance

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procedures are not mandated by the First Amendment and do not by their very existence create

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liberty interests protected by the Due Process Clause, and so the alleged mishandling of [an inmate’s]

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grievances by persons who otherwise did not cause or participate in the underlying conduct states

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no claim.”). At the time that Plaintiff’s appeals were reviewed and denied, he had already been

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charged and found guilty of the rule violation and the grooming policy had been revised. Defendants

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Mendoza-Powers and Woodford did not cause or contribute to the violation by ruling on Plaintiff’s
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inmate appeal. Plaintiff’s allegations that Defendants Mendoza-Powers and Woodford denied his

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inmate appeal are insufficient to state a cognizable claim.

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Plaintiff’s allegations that Defendant Mendoza-Powers continued to enforce the grooming

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policy, and Defendants Reynolds and Chastagner charged him with a rule violation and he was found

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guilty of violating an unconstitutional policy states a claim for violation of Plaintiff’s free exercise

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rights under the First Amendment.

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B.

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To constitute cruel and unusual punishment in violation of the Eighth Amendment, prison

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conditions must involve “the wanton and unnecessary infliction of pain.” Rhodes v. Chapman, 452

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U.S. 337, 347 (1981). A prisoner’s claim does not rise to the level of an Eighth Amendment

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violation unless (1) “the prison official deprived the prisoner of the ‘minimal civilized measure of

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life’s necessities,’” and (2) “the prison official ‘acted with deliberate indifference in doing so.’”

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Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Hallett v. Morgan, 296 F.3d 732,

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744 (9th Cir. 2002) (citation omitted)). In order to find a prison official liable under the Eighth

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Amendment for denying humane conditions of confinement within a prison, the official must know

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“that inmates face a substantial risk of serious harm and disregard[] that risk by failing to take

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reasonable measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 847 (1994).

Eighth Amendment

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Plaintiff has not alleged facts to show that he was at risk of serious harm due to the grooming

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policy, by being found guilty of violating the policy, or by the conditions he was subjected to due

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to the sentence imposed. Plaintiff fails to state a cognizable claim for cruel and unusual punishment

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in violation of the Eighth Amendment. While Plaintiff has not previously been provided with the

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legal standard to state a conditions of confinement claim under the Eighth Amendment, the Court

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finds that Plaintiff’s Eighth Amendment claims set forth here are not capable of being cured by

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amendment and leave to amend should not be granted.

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C.

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The Due Process Clause protects against the deprivation of liberty without due process of

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law. Wilkinson v. Austin, 545 U.S. 209, 221, 125 S. Ct. 2384, 2393 (2005). In order to state a cause

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of action for a deprivation of due process, a plaintiff must first identify a liberty interest for which

Fourteenth Amendment

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the protection is sought. Id. The Due Process Clause does not confer a liberty interest in freedom

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from state action taken within a prisoner’s imposed sentence. Sandin v. Conner, 515 U.S. 472, 480,

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115 S. Ct. 2293, 2298 (1995). A prisoner has a liberty interest protected by the Due Process Clause

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only where the restraint “imposes atypical and significant hardship on the inmate in relation to the

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ordinary incidents of prison life.” Keenan v. Hall, 83 F.3d 1083, 1088 (9th Cir. 1996) (quoting

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Sandin, 515 U.S. at 484, 115 S. Ct. at 2300).

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Plaintiff has failed to state a liberty or property interest to state a cognizable claim for a
violation of due process.

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Additionally, where a particular amendment provides an explicit textual source of

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constitutional protection against a particular sort of government behavior, that Amendment, not the

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more generalized notion of substantive due process, must be the guide for analyzing a plaintiff’s

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claims.” Patel v. Penman, 103 F.3d 868, 874 (9th Cir. 1996) (citations, internal quotations, and

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brackets omitted) overruled on other grounds by Unitherm Food Systems, Inc. V. Swift –Eckrick,

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Inc., 546 U.S. 394 (2006); County of Sacramento v. Lewis, 523 U.S. 833, 842 (1998).

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In this case, the First Amendment “provides [the] explicit textual source of constitutional

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protection . . . .” Patel, 103 F.3d at 874. Therefore, the First Amendment rather than the Due

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Process Clause of the Fourteenth Amendment governs Plaintiff’s claims.

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Extra Duty Hours

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Plaintiff’s allegation that he was required to perform forty hours of extra duty is insufficient

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to state a liberty interest. Requiring Plaintiff to perform forty hours of extra duty does not impose

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atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.

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Miller v. Conway, No. 1:05-cv-00469-S-LMB, 2007 WL 2782246, *11-12, 14 (D. Idaho Sept. 21,

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2007) (no liberty interest in inmate being sentenced to fifteen days of disciplinary segregation and

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twenty hours of extra duty or sixty days of commissary restriction and forty extra duty hours);

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Fordjour v. Director of CDCR, No. 1:07-cv-01768-AWI-SMS PC, 2008 WL 782865, *3 (E.D. Cal.

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Mar. 20, 2008) (no liberty interest in imposition of extra duty hours and placement on C status);

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Booth v. Stewart, No. 2:02-po-02440-MHM DKD, 2005 WL 2449956, *5 (D.Ariz. Sept. 29, 2005)

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(imposition of extra duty and suspended disciplinary detention “are not atypical or significant
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hardships giving rise to a liberty interest”).

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2.

Rule Violation Report

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There is no property or liberty interest in the documents contained in an inmate’s central file.

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Plitt v. Gonzalez, No. 1:08-cv-01352-BLW-LMB, 2011 WL 3813099, *5 (E.D.Cal. Aug. 26, 2011).

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Nor is Plaintiff’s allegation that the rule violation report will have negative consequences sufficient

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to establish a liberty interest in the document’s inclusion in his central file. The Due Process Clause

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itself does not contain any language that grants a broad right to be free from false accusations, but

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guarantees certain procedural protections to defend against false accusations. Freeman v. Rideout,

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808 F.2d 949, 951 (2nd Cir. 1986). However, “prison disciplinary proceedings are not part of a

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criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not

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apply.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974).

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3.

Grievance Process

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Plaintiff does not have a constitutionally protected right to have his appeals accepted or

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processed, Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); and there is no liberty interest in

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a prison grievance procedure as it is a procedural right only. Mann v. Adams, 855 F.2d 639, 640 (9th

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Cir. 1988); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993).

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D.

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Plaintiff is not entitled to damages for a violation of the cruel and unusual punishment clause

California Constitution

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of the state constitution.

Giraldo v. California Dep’t Corrections and Rehabilitation, 168

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Cal.App.4th 231, 256-57 (Ct. App. 2008) (cruel and unusual punishment); see also Brown v. County

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of Kern, No. 1:06-cv-00121-OWW-TAG, 2008 WL 544565, *17 (E.D. Cal. Feb. 26, 2008) (plaintiff

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may not seek damages directly under Article 1, Sections 7 or 13 of the California Constitution).

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E.

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In addition to money damages, Plaintiff seeks a declaration that his rights were violated. “A

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declaratory judgment, like other forms of equitable relief, should be granted only as a matter of

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judicial discretion, exercised in the public interest.” Eccles v. Peoples Bank of Lakewood Village,

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333 U.S. 426, 431 (1948). “Declaratory relief should be denied when it will neither serve a useful

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purpose in clarifying and settling the legal relations in issue nor terminate the proceedings and afford

Declaratory Relief

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relief from the uncertainty and controversy faced by the parties.” United States v. Washington, 759

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F.2d 1353, 1357 (9th Cir. 1985). In the event that this action reaches trial and the jury returns a

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verdict in favor of Plaintiff, that verdict will be a finding that Plaintiff’s constitutional rights were

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violated. Accordingly, a declaration that Defendants violated Plaintiff’s rights is unnecessary.

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F.

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Plaintiff seeks injunctive relief requiring Defendant Woodford to cease and desist in using

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the disciplinary documentation against Plaintiff and to remove the documents from his central file,

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and to prohibit the documents from being used against Plaintiff in any future hearings, committees,

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or proceedings that pertain to Plaintiff.

Injunctive Relief

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For each form of relief sought in federal court, Plaintiff must establish standing. Mayfield

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v. United States, 599 F.3d 964, 969 (9th Cir. 2010), cert.denied, 131 S. Ct. 503 (2010). This requires

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Plaintiff to “show that he is under threat of suffering ‘injury in fact’ that is concrete and

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particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be

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fairly traceable to challenged conduct of the defendant; and it must be likely that a favorable judicial

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decision will prevent or redress the injury.” Summers v. Earth Island Institute, 129 S. Ct. 1142, 1149

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(2009) (citation omitted); Mayfield, 599 F.3d at 969 (citation omitted).

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In addition, any award of equitable relief is governed by the Prison Litigation Reform Act,

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which provides in relevant part, “Prospective relief in any civil action with respect to prison

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conditions shall extend no further than necessary to correct the violation of the Federal right of a

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particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless

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the court finds that such relief is narrowly drawn, extends no further than necessary to correct the

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violation of the Federal right, and is the least intrusive means necessary to correct the violation of

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the Federal right.” 18 U.S.C. § 3626(a)(1)(A).

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Plaintiff is seeking relief that cannot be granted in this action, and therefore, Plaintiff’s

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request for injunctive relief is not cognizable. This action shall proceed as one for monetary

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damages only.

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IV.

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Conclusion and Recommendation
Plaintiff’s first amended complaint sets forth a cognizable claim against Defendants
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Mendoza-Powers, Chastagner, and Reynolds for violation of the Free Exercise Clause of the First

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Amendment, but does not state any other claims for relief under section 1983. Because Plaintiff has

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previously been notified of the deficiencies and given leave to amend, the Court recommends that

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the non-cognizable claims be dismissed, with prejudice. Noll v. Carlson, 809 F.2d 1446, 1448-49

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(9th Cir. 1987). Based on the foregoing, it is HEREBY RECOMMENDED that:

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This action proceed on Plaintiff’s First Amended Complaint, filed March 6, 2012,

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against Defendants Mendoza-Powers, Chastagner, and Reynolds for violation of the

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Free Exercise Clause of the First Amendment for monetary damages;

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2.

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claims be dismissed, with prejudice, for failure to state a claim under section 1983;
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Plaintiff’s Eighth Amendment, Fourteenth Amendment, and state constitutional

Plaintiff’s requests for declaratory and injunctive relief be dismissed for failure to
state a claim under section 1983; and

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Defendant Woodford be dismissed, with prejudice, based upon Plaintiff’s failure to
state a cognizable claim against her.

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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.
Dated:
10c20k

April 5, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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