Howard v. Deazevedo
Filing
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FINDINGS and RECOMMENDATIONS recommending that 23 Defendants' Motion to Dismiss be DENIED With Prejudice re 9 First Amended Prisoner Civil Rights Complaint, signed by Magistrate Judge Sheila K. Oberto on 11/28/2012. Referred to Judge Ishii. Objections to F&R due within fifteen (15) days. (Jessen, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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TIMOTHY HOWARD,
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Plaintiff,
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CASE NO. 1:11-cv-00101-AWI-SKO PC
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DEFENDANTS’ MOTION
TO DISMISS BE DENIED, WITH PREJUDICE
v.
D. L. DeAZEVEDO, et al.,
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(Doc. 23)
Defendants.
FIFTEEN-DAY OBJECTION PERIOD
/
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Findings and Recommendations Recommending Motion to Dismiss be Denied
I.
Procedural History
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Plaintiff Timothy Howard, a state prisoner proceeding pro se and in forma pauperis, filed this
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civil rights action pursuant to 42 U.S.C. § 1983 on January 20, 2011. Pursuant to the Court’s
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screening order, this action for damages is proceeding on Plaintiff’s amended complaint on (1)
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Plaintiff’s First Amendment retaliation claims against Defendants DeAzevedo, Paz, and Stephens
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arising out of the search of Plaintiff’s cell and against Defendant DeAzevedo arising out of the
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issuance of the false RVR, and (2) Plaintiff’s due process claim against Defendants James arising
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out of the adjudication of the false RVR. (Doc. 14.)
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On July 13, 2012, Defendants DeAzevedo, Paz, Stephens, and James filed a motion to
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dismiss for failure to state a claim. Fed. R. Civ. P. 12(b)(6). Plaintiff filed an opposition on July 27,
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2012, and Defendants filed a reply on August 3, 2012. The motion has been submitted upon the
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record without oral argument pursuant to Local Rule 230(l).
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II.
Discussion
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A.
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To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted
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as true, to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
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1937 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007))
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(quotation marks omitted); Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011),
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cert. denied, 132 S.Ct. 1762 (2012); Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
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The Court must accept the well-pleaded factual allegations as true and draw all reasonable inferences
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in favor of the non-moving party. Daniels-Hall v. National Educ. Ass’n, 629 F.3d 992, 998 (9th Cir.
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2010); Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007), cert. denied, 553 U.S. 1031 (2008);
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Huynh v. Chase Manhattan Bank, 465 F.3d 992, 996-97 (9th Cir. 2006); Morales v. City of Los
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Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000). Further, although the pleading standard is now
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higher, the Ninth Circuit has continued to emphasize that prisoners proceeding pro se in civil rights
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actions are still entitled to have their pleadings liberally construed and to have any doubt resolved
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in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012); Watison v. Carter, 668
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F.3d 1108, 1112 (9th Cir. 2012); Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011); Hebbe
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v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).
Legal Standard
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B.
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The Court previously screened Plaintiff’s amended complaint and in doing so, it issued a
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detailed order explaining the bases for its findings that Plaintiff stated cognizable claims. 28 U.S.C.
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§ 1915A; Docs. 11, 14. The screening standard is the same standard which governs Rule 12(b)(6)
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motions, Watison, 668 F.3d at 1112, and therefore, in cases which have been screened, the Court
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generally views motions to dismiss for failure to state a claim with disfavor. Unless a motion sets
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forth new or different grounds not previously considered by the Court, it is disinclined to “‘rethink
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what it has already thought.’” Sequoia Forestkeeper v. U.S. Forest Service, No. CV F 09-392 LJO
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JLT, 2011 WL 902120, at *6 (E.D.Cal. Mar. 15, 2011) (quoting United States v. Rezzonico, 32
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F.Supp.2d 1112, 1116 (D.Ariz.1998)). For the reasons which follow, the instant motion presents no
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exception to the general disfavor with which such motions are viewed, and Court is not persuaded
Plaintiff’s First Amendment Retaliation Claims
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to depart from its prior screening order.
1.
Legal Standard
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“Within the prison context, a viable claim of First Amendment retaliation entails five basic
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elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because
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of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his
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First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional
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goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); accord Watison, 668 F.3d at
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1114-15; Silva, 658 F.3d at 1104; Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009).
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2.
Protected Conduct
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Defendants first argue that Plaintiff was not engaged in conduct protected by the First
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Amendment because holding the administrative segregation yard hostage threatened the safety and
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security of the institution and was not protected conduct. To the extent that the Court’s screening
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order was unclear, holding the yard “hostage” was not the protected conduct at issue. (Amend.
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Comp., ¶12.) Rather, Plaintiff’s retaliation claim is premised on the adverse actions taken against
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him because he, along with other prisoners, complained to superior officers about subordinate
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officers’ misconduct. (Id., ¶¶13, 14.) Seeking redress from the government is protected by the First
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Amendment and the Court rejects Defendants’ argument that Plaintiff’s retaliation claim lacks this
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requisite element. Watison, 668 F.3d at 1114; Silva, 658 F.3d at 1104.
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3.
Advancement of Legitimate Correctional Goal
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Defendants next argue that the search of Plaintiff’s cell furthered a legitimate correctional
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goal and because Plaintiff failed to allege that the search of his cell did not reasonably advance such
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a goal, he fails to state a claim. This argument, too, is rejected. Whether the cell search was
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conducted in the advancement of a legitimate correctional goal rather than to retaliate against
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Plaintiff for complaining, as he alleges, is an issue for a later stage in these proceedings at which
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evidence may be considered. E.g., Nevada Dep’t of Corr., 648 F.3d 1014, 1018 (9th Cir. 2011);
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Brodheim, 584 F.3d at 1271; Bruce v. Ylst, 351 F.3d 1283, 1289-90 (9th Cir. 2003); see also Barrett
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v. Belleque, 544 F.3d 1060, 1062 (9th Cir. 2008) (per curiam). It would be inappropriate for the
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Court to determine at the pleading stage that Plaintiff’s retaliation claim is precluded because in
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general, cell searches advance a legitimate correctional goal. Bruce, 351 F.3d at 1289. Furthermore,
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the Court declines to find that Plaintiff is specifically required to state that the search did not
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reasonably advance a legitimate penological goal when it is abundantly clear from his complaint that
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he is alleging the search was one of a series of adverse actions taken to retaliate against him for
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complaining. See Silva, 658 F.3d at 1105 (allegations of complaint must be read together).
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4.
Causal Connection
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Finally, Defendants argue that Plaintiff failed to allege the requisite causal connection
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between his conduct and the cell search. Again, viewing the amended complaint as a whole, Plaintiff
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clearly alleges that his cell was searched by Defendants because he complained about them to their
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superior officers the previous day. Silva, 658 F.3d at 1105. (Amend. Comp., ¶¶13, 14, 16.) This
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is sufficient to satisfy the causal connection at the pleading stage. Watison, 668 F.3d at 1114.
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B.
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Fourteenth Amendment Due Process Claims
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Defendant DeAzevedo
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Defendants, citing to decisions by Second and Seventh Circuits, argue that Plaintiff’s due
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process claim against Defendant DeAzevedo should be dismissed because prisoners do not have a
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right to be free from wrongfully issued disciplinary reports. This action is not proceeding against
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Defendant DeAzvedo for violating Plaintiff’s right to due process and it is unclear why this argument
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is being raised. (Doc. 14, 2:3-8.)
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2.
Defendant James
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Finally, Defendants argue that Plaintiff’s due process claim against Defendant James should
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be dismissed because Plaintiff did not have a protected liberty interest at stake, the “sheer denial of
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due process” theory is inapplicable because the finding of guilt was supported by some evidence and
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it has been expunged, Plaintiff’s allegations against Defendant James cannot support a due process
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claim because no amount of due process could justify his actions, Defendant James did not have the
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authority to postpone the disciplinary hearing, Defendant James was not responsible for the
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deficiencies in the disciplinary report, and the claim is moot. For the following reasons, the Court
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finds Defendants’ arguments to be wholly without merit.
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a.
Liberty Interest
The Court already determined that there was no protected liberty at stake; this is a non-issue.
(Doc. 11, 9:1-12; Doc. 14, 2:1-8.)
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b.
Sheer Denial of Due Process Theory
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Plaintiff alleges that the rules violation report (RVR) issued against him by Defendant
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DeAzevedo was false in its entirety, as it accused him of threatening staff at 11:30 a.m. on March
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10, 2010, when he was at the Kings County courthouse and was not present at the prison, and
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Plaintiff alleges that the RVR’s issuance was motivated out of retaliation against Plaintiff for
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complaining. Plaintiff alleges that there were numerous irregularities regarding the investigative
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employee report, notably that certain witnesses had not been questioned and that questions directed
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to witness S. Ramirez had been falsified.1
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Plaintiff requested that Defendant James, who was the hearing officer, postpone the hearing
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on the ground that the investigative employee report was insufficient. When Defendant James
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inquired how it was insufficient, Plaintiff informed him that the questions and answers attributed to
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Officer Ramirez in the report were incorrect and he showed Defendant James Officer Ramirez’s
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statement regarding the timing of the escort. Defendant James allegedly proceeded to throw the
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statement in the trash, told Plaintiff he did not see any statement from Ramirez, and conducted the
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hearing.
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Whether or not the finding of guilt was supported by some evidence is an issue appropriately
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raised at a later stage in these proceedings, at which Defendants will present their version of events
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support by evidence. At the pleading stage, Plaintiff has alleged that the RVR was false in its
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entirety as it accused Plaintiff of misconduct he could not possibly have committed because he was
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not present at the institution during the time in question and that Defendant James was not only
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aware of the RVR’s falsity but he destroyed evidence which supported Plaintiff’s position. “The
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touchstone of due process is protection of the individual against arbitrary action of government,”
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Ramirez was the correctional officer who escorted Plaintiff back to the building when he returned from
court and he provided Plaintiff with a written statement that he did not escort Plaintiff back to the building until 1:00
p.m.
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Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963 (1974), and this is precisely the “sheer denial
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of due process” which the Ninth Circuit has recognized supports a claim, Nonnette v. Small, 316
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F.3d 872, 878-79 (9th Cir. 2002); Burnsworth v. Gunderson, 179 F.3d 771, 774-75 (9th Cir. 1999).
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Defendants’ argument that Plaintiff’s claim is not cognizable under such a theory is untenable
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c.
No Justification for Actions
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Defendants cite to Toussaint v. McCarthy, 801 F.2d 1080, 1093 (9th Cir. 1986), abrogated
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in part on other grounds by Sandin v. Connor, 515 U.S. 472, 115 S.Ct. 2293 (1985), in support of
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their argument that Plaintiff’s allegations against Defendant James cannot support a due process
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claim because no amount of due process could justify his actions. This argument is inapposite. In
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Toussaint, the Ninth Circuit was addressing and rejecting the plaintiffs’ argument that the existence
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of eighth amendment violations supported the existence of a due process liberty interest. Id. No
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such theory is at issue here; the Court made a finding as to the lack of any protected liberty interest
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and this action is not proceeding on any Eighth Amendment claims.
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d.
Postponement and Report
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Equally untenable are Defendants’ arguments that Defendant James could not have violated
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Plaintiff’s due process rights because he did not have the authority to postpone the hearing and he
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was not responsible for the investigative employee report. Notwithstanding whatever the prison’s
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rules may have been, Defendant James was the hearing officer and under federal law, Plaintiff was
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entitled to a fair hearing. Assuming the truth of Plaintiff’s allegations, he did not receive a fair
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hearing and the hearing officer went so far as to destroy the documentary evidence which belied the
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charge against Plaintiff and then immediately thereafter state to Plaintiff that he never saw such a
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document. That Defendants would argue these actions cannot form the basis of a due process claim
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is perplexing at best. Nonnette, 316 F.3d at 878-79; Burnsworth, 179 F.3d at 774-75.
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e.
Mootness
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Finally, Defendants’ argument that the claim is moot is rejected. If Plaintiff proves his due
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process rights were violated, his remedy is not limited to a “do-over with proper procedural due
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process,” as Defendants suggest. (Doc. 23-1, Motion, 12:7-9.) In as much as the RVR against
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Plaintiff was ultimately dismissed, that form of relief is not available, and in fact, the Court already
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limited this action to one for damages. (Doc. 14, 2:3.) The Court declines to speculate as to what
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relief Plaintiff may be entitled should he prevail on his claim; it suffices to note the potential
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availability of compensatory, nominal, and/or punitive damages in section 1983 actions. Farrar v.
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Hobby, 506 U.S. 103, 112, 113 S.Ct. 566, 573 (1992); Guy v. City of San Diego, 608 F.3d 582, 587
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(9th Cir. 2010); Dang v. Cross, 422 F.3d 800, 807-08 (9th Cir. 2005).
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III.
Conclusion and Recommendation
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Plaintiff’s amended complaint clearly states claims upon which relief may be granted, as
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determined by the Court when it screened Plaintiff’s complaint. Wilhelm, 680 F.3d at 1121;
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Watison, 668 F.3d at 1112; Silva, 658 F.3d at 1101; Hebbe, 627 F.3d at 342. Although Defendants’
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counsel acknowledged the existence of the screening order in one sentence in the motion, more than
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passing familiarity with the order it is not readily apparent. Counsel advances arguments aimed at
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refuting claims and issues which have already been resolved, and counsel characterizes the facts and
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the law in ways which are not supportable.
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multiplication of the proceedings through the filing of frivolous motions is quite another – counsel
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is cautioned that it will not be tolerated.
Zealous advocacy is one thing; unnecessary
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The Court finds that Defendants have not met their burden as the parties moving for
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dismissal and the Court HEREBY RECOMMENDS that their motion to dismiss for failure to state
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a claim, filed on July 13, 2012, be DENIED, with prejudice.
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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 fifteen (15)
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days after being served with these Findings and Recommendations, the parties 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.” The parties are 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
November 28, 2012
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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