Gomez v. Diaz et al

Filing 7

ORDER DISMISSING CASE and REVOKING In Forma Pauperis Status signed by Chief Judge Ralph R. Beistline on 11/3/2014. CASE CLOSED.(Lundstrom, T)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
ALEJANDRO GOMEZ,
Case No. 1:11-cv-00461-RRB
Plaintiff,
DISMISSAL ORDER
vs.
A. DIAZ, et al.,
Defendants.

Alejandro Gomez, a state prisoner appearing pro se and in forma pauperis, filed a civil
rights action under 42 U.S.C. § 1983 against thirteen named defendants.1 Gomez is currently
in the custody of the California Department of Corrections and Rehabilitation incarcerated at
the Salinas Valley State Prison (“SVSP”). This action arise out of incidents that occurred while
Gomez was incarcerated at the California State Prison–Corcoran (“CSP”).
I.

GRAVAMEN OF COMPLAINT
Gomez’s action arises out of his confinement in the Special Housing Unit (“SHU”) in

administrative segregation at CSP. Gomez does not challenge his initial confinement in the

1

In addition to A. Diaz (Correctional Lieutenant), Gomez named: R. Davis (Chief
Deputy Warden (A)); R. Chavez (Correctional Counselor II); R. Schneider (Correctional
Counselor I); I. Bueno (Correctional Sergeant); T. Cano (Appeals Coordinator); J. Jones
(Appeals Coordinator); M. Junious (Chief Deputy Warden); M. Jennings (Correctional
Captain); D. DeAvecedo (Correctional Counselor II); K. Comaites (Chief Deputy Warden (A));
T. Pasion (Correctional Counselor I); and M. Cisneros (Correctional Counselor II).
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SHU. Instead, it appears that Gomez alleges that his continued incarceration in the SHU for
a period of approximately four (4) months beyond his original scheduled Minimum Eligible
Release Date (“MERD”) releasing him back to the general population was in retaliation for
filing grievances against correctional officers. Gomez further contends that he did not receive
hearings before the Inmate Classification Committee within the time limits prescribed by the
regulations. Gomez argues that the actions of the Defendants, individually and collectively,
denied him due process of law, redress of his grievances, and constituted cruel and unusual
punishment in violation of the First, Eighth, and Fourteenth Amendments.
His Complaint is also replete with conclusory descriptive adjectives, e.g., “despicable,
knowingly, willful, malicious, and/or carried out with reckless disregard for Plaintiff’s federally
protected rights,” and “threats of retribution, retaliation, discrimination” due to the filing of
grievances and Gomez’s affiliation with the Fresno Bulldogs.
Gomez appended to his Complaint twenty-one (21) exhibits, including as relevant to
screening the allegations raised in his complaint, copies of the Director’s Level Appeal
Decisions dated December 29, 2008, June 2, 2009, and May 19, 2010. Excerpts of those
decisions are as follows:
First Director’s Level Appeal (December 29, 2008).
I
APPELLANT' S ARGUMENT: The appellant is submitting this appeal
relative to CDC Form 115, Rules Violation Report (RVR), Log #3A-08-04-026,
dated April 16, 2008, for Possession of a Weapon. It is the appellant's position
that the Senior Hearing Officer (SHO) had a predetermined belief of the
appellant's guilt because at his initial Institution Classification Committee (ICC)
hearing the SHO retained him in the Administrative Segregation Unit (ASU) for
this offense. Additionally the Investigative Employee (IE) failed to provide the
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Gomez v. Diaz, 1:11-cv-00461-RRB – 2

appellant with copies of the photographs referenced in the CDC 837,
Crime/Incident Report, the photographs were not presented at the hearing, and
the SHO made assumptions based upon the appellant's Bulldog status.
The appellant requests that the RVR be dismissed.
* * * *
III DIRECTOR'S LEVEL DECISION: Appeal is denied.
A. FINDINGS: The documentation and arguments presented are
persuasive that the appellant was afforded disciplinary due process and
was found guilty by the SHO based upon the preponderance of
evidence presented during the hearing. Upon review of the
documentation presented, it is determined that the appellant's arguments
are without merit.
The review revealed that all time constraints were met and !he appellant
received a copy of all documentation relied upon in the hearing at least
24 hours prior to the hearing. The appellant did not meet the criteria lo
be assigned a Staff Assistant pursuant to the California Code of
Regulations, Title 15, Section (CCR) 3315 and waived the assignment
of an IE. No witnesses were requested by the appellant or the SHO.
The appellant has failed to present a persuasive argument or any
compelling evidence to warrant a favorable decision in his behalf.
During the disciplinary hearing the appellant pled guilty and stated, "The
weapon was mine. My cellie didn't know anything about it." The
appellant's claim that he was not provided with copies of the
photographs and the photographs were not presented at the hearing is
without merit as he was provided with the opportunity to view the
evidence photographs more than 24 hours prior to the hearing.
Pursuant to a CDC Form 128-B dated May 13, 2008, the appellant was
provided with the opportunity to view the evidence photographs
referenced in the CDC 837, He demanded to keep the photographs and
refused to sign the CDC Form 128-B signifying that he viewed the
photographs when his demand was denied.
The appellant's contention that the SHO (Correctional Lieutenant A.
Diaz) had a preconceived belief of his guilt because the SHO was part
of the appellant's Initial ICC is without merit. As indicated at the Second
Level of Review, review of the CDC Form 128-G dated April 25, 2008,
does not reflect that the SHO was a participant at the ICC hearing.
Additionally, review of the CDC Form 128-G at the Director's Level of
Review does not indicate evidence of predetermined belief of the
appellant's guilt. During the ICC on April 25, 2008, the committee noted
that the appellant was initially placed in the ASU for Possession of a
Deadly Weapon and that he is being retained in the ASU pending
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adjudication of the RVR for this offense. Based upon this information,
if the SHO had been present during the ICC on April 25, 2008, there is
no evidence of a predetermined belief of the appellant's guilt by the
committee members.
In review of the hearing disposition the SHO notes, "It should also be
noted that at the time frame of discovery, the Fresno Bulldogs were at
the peak of the ongoing gang violence with the Southern Hispanic
inmates in which both factions were using stabbing weapons to assault
each other. Both inmate Gonzalez and inmate Gomez are members of
the Fresno Bulldogs. This would corroborate inmate Gomez' admission
of guilt. The appellant has admitted that he is a Bulldog and has not
provided any evidence to dispute this information provided by the SHO.2
Second Director’s Level Appeal (June 2, 2009)
I
APPELLANT'S ARGUMENT: It is the appellant's position that the
California State Prison, Corcoran (COR) classification committee has violated
his Constitutional Rights by not scheduling him for an Initial Appearance before
the Institution Classification Committee (ICC) nor a Pre-MERD review. The
appellant filed a citizen's complaint against all officials responsible for the
classification and housing of inmates within Facility "4B" Security Housing Unit
(SHU). The appellant requests immediate release to the COR Level IV general
inmate population (GIP) and to be reimbursed $150.00 for each day that he has
been illegally held in the Administrative Segregation Unit (ASU)/SHU.
* * * *
III
DIRECTOR'S LEVEL DECISION: Appeal is denied.
A. FINDINGS: The documentation contained in the appellant's appeal
reveals that the appellant was initially placed into the ASU on April 16,
2008, for the specific act of Possession of a Weapon. The appellant
was retained in the ASU pending the completion of his disciplinary
process, which resulted in the assessment of a 10-month determinate
SHU term with a MERD of December 1, 2008.
During a program review that was conducted on December 18, 2008,
as a result of the appellant's completion of his MERD, ICC elected to
impose an Indeterminate SHU term based upon the appellant's
continued disruptive behavior. ICC referred the appellant's case to the
CSR, who on January 21, 2009, conducted a SHU audit and endorsed
the appellant lo serve an Indeterminate SHU term at COR SHU. While

2

Docket 1, pp. 31–32.

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the CDC Form 128-G, Classification Chrono dated December 18, 2008,
is after the appellant's original MERD of December l, 2008, his retention
in the SHO as a result of his history of disruptive behavior, which was
determined to pose a threat to the safety and security of the institution
is not viewed as a violation of any due process rights or liberty interest
of the appellant. Therefore, no violation of the appellant's due process
rights occurred and the retention of the appellant within the SHU beyond
his MERD while awaiting the CSR's review of the Indeterminate SHU
recommendation of the ICC is consistent with the regulations cited
herein. As for the appellant's request for monetary compensation, this
request is beyond the scope of the inmate appeals process and will not
be discussed at the Director's Level of Review.3
Third Director’s level Appeal Decision (May 19, 2010)
I
APPELLANT'S ARGUMENT: It is the appellant's position that he has
been improperly retained in the Corcoran State Prison (COR) Administrative
Segregation Unil (ASU) while staff "clear up" his enemy situation at Salinas
Valley State Prison (SVSP). He states he can be released to the "3-A" yard
while they sort things out. He has completed his Security Housing Unit (SHU)
term and an indeterminate term and has no pending CDC Forms 115, Rules
Violation Reports. He requests a group yard for "Bulldogs" in the ASU. The
appellant requests immediate release from the ASU and a "Bulldog" group yard.
* * * *
III
DIRECTOR'S LEVEL DECISION: Appeal is denied.
A. FINDINGS: At the Director's Level of Review (DLR), the appellant
states he was held in the COR ASU "illegally" due to enemy concerns
at SVSP that could have been cleared up months prior to his release
from the COR SHU. He asserts that his enemy concerns were not
cleared up in retaliation for filing multiple appeals about COR staff.
The appeals examiner notes that there is no requirement for staff to
"clear up" potential enemy concerns prior to an inmate’s release fron1
SHU since the enemies may move prior to the affected inmate1s
release. In addition, the Classification Staff Representative (CSR)
makes a determination about transfer following Institution Classification
Committee action and a transfer recommendation would not have not
been made prior to the appellant's SHU Minimum Eligible Release Date.
The documentation submitted with the appeal shows that COR staff

3

Docket 1, p. 43.

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attempted to house the appellant at COR JV 270 due to his enemy
concerns, but were directed by CSU to work with SVSP staff to address
the enemy situation at that institution. There is no proof that COR staff
acted improperly or deliberately delayed the appellant’s ASU release.
The examiner finds that there is no evidence to support the appellant's
claims of retaliation. No relief is warranted at the DLR.4
II.

SCREENING REQUIREMENT
This Court is required to screen complaints brought by prisoners seeking relief against

a governmental entity or officer or employee of a governmental entity.5 This Court must
dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
“frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that
“seeks monetary relief against a defendant who is immune from such relief.”6
In determining whether a complaint states a claim, the Court looks to the pleading
standard under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must
contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”7
“[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but
it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”8
Failure to state a claim under § 1915A incorporates the familiar standard applied in Federal
4

Docket 1, p. 100.

5

28 U.S.C. § 1915A(a).

6

28 U.S.C. § 1915(e)(2)(B); 42 U.S.C. § 1997e(c); see Lopez v. Smith, 203 F.3d
1122, 1126 & n.7 (9th Cir. 2000) (en banc).
7

Fed. R. Civ. P. 8(a)(2).

8

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 554, 555 (2007)).
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Rule of Civil Procedure 12(b)(6), including the rule that complaints filed by pro se prisoners
are to be liberally construed, affording the prisoner the benefit of any doubt, and dismissal
should be granted only where it appears beyond doubt that the plaintiff can plead no facts in
support of his claim that would entitle him or her to relief.9
This requires the presentation of factual allegations sufficient to state a plausible claim
for relief.10 “[A] complaint [that] pleads facts that are ‘merely consistent with’ a defendant’s
liability . . . ‘stops short of the line between possibility and plausibility of entitlement to relief.’”11
Further, although a court must accept as true all factual allegations contained in a complaint,
a court need not accept a plaintiff’s legal conclusions as true.12 “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.”13
III.

DISCUSSION
In order to state a cause of action for violation of procedural due process, a prisoner

must first establish the existence of a liberty interest within the scope of the protection of the
Fourteenth Amendment.14 Liberty interests may arise from the Due Process Clause itself, or

9

Wilhelm v. Rotham, 680 F.3d 1113, 1121 (9th Cir. 2012).

10

Iqbal, 556 U.S. at 678–69; see Moss v. U.S. Secret Service, 572 F.3d 962, 969
(9th Cir. 2009) (quoting and applying Iqbal and Twombly).
11

Iqbal 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).

12

Id.

13

Id. (quoting Twombly, 550 U.S. at 555).

14

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

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state law.15 The Due Process Clause, standing alone, does not confer a liberty interest in
prisoners being confined in the general prison population instead of administrative
segregation.16 With respect to liberty interests arising under state law, the liberty interest by
prison regulations is determined by focusing on the nature of the deprivation.17 Liberty
interests affected by prison regulations are limited to freedom from restraint that “imposes
atypical and significant hardship on the inmate in relation to the ordinary incidents of prison
life.”18 Confinement in a SHU does not rise to this level.19
Furthermore, “the requirements of due process are satisfied if some evidence supports
the decision by the prison [officials].”20 Here it is clear that the Director’s Level Decisions were
supported some evidence, independent of any alleged impropriety on the part of the
Defendants, warranting Gomez’s continued placement in the SHU.
Although not entirely clear from the Complaint, it appears that Gomez claims that he
was held in the SHU in retaliation for the filing of CDCR 602s. It is well-established in this

15

See Hewitt v. Helms, 459 U.S. 460, 466–68 (1983).

16

Id.

17

Sandin v. Conner, 515 U.S. 472, 481–84 (1995).

18

Id. at 484.

19

See Sandin, 515 U.S. at 486 (disciplinary confinement does “not present the type
of atypical, significant deprivation in which a State might conceivably create a liberty interest”);
see also May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997) (“[A]dministrative segregation
falls within the terms of confinement ordinarily contemplated by a sentence.”); Anderson v.
County of Kern, 45 F.3d 1310, 1315 (9th Cir. 1995) (“no liberty interest in remaining in the
general population” of prison).
20

Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455 (1985).

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Circuit that a prisoner’s rights to file prison grievances and to pursue civil rights litigation in the
courts are protected by the First Amendment.21 Likewise, retaliatory actions by prison officials
are cognizable under § 1983.22
Within the prison context, a viable claim of First Amendment retaliation
entails five basic elements: (1) An assertion that a state actor took some
adverse action against an inmate (2) because of (3) that prisoner's protected
conduct, and that such action (4) chilled the inmate's exercise of his First
Amendment rights, and (5) the action did not reasonably advance a legitimate
correctional goal.23
The insurmountable hurdle Gomez faces is that each of the CDR 602s involved were,
in fact, processed and denied on the merits at the third-level of review. The adverse action in
this case was the continuation of Gomez’s confinement in the SHU. The record clearly
establishes that the action taken did not a result from protected conduct, did not have a chilling
effect on his exercise of his First Amendment right to file a grievance, nor did it fail to advance
a legitimate correctional goal. Thus, even accepting that the statements alleged to have been
made were in fact made, i.e., that filing a CDCR 602 would be futile, taken in the context the
proceedings in the record, those statements were more predictive than threatening. At most,
the allegations in the complaint are based upon Petitioner’s “belief” that the denial of his
grievances were retaliatory in nature. The record is utterly devoid of any factual basis for the
retaliation claim. This Court cannot grant relief based upon a petitioner’s “belief” supported

21

Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005).

22

Id.

23

Id. at 567–68 (footnotes and internal citations omitted).

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solely by conjecture and supposition; especially where, as here, the objective evidence clearly
and unequivocally undercuts that “belief.”
The Eighth Amendment is violated only when two requirements are met: (1) “the
deprivation alleged must be objectively sufficiently serious”; and (2) the “act or omission must
result in the denial of the minimal civilized measure of life’s necessities.”24 Confinement in a
SHU does not rise to that level.25
To the extent that Plaintiff alleges that the actions of Defendants violated state law,
§ 1983 does not provide a cause of action for those claims.26 In addition, Plaintiff must show
compliance with the presentment requirements of the California Tort Claims Act.27 It does not
appear that Gomez met that requirement.

24

Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks and
citations omitted).
25

See Anderson, 45 F.3d at 1316 ; see also Pina v. Scavetta, 467 Fed. Appx. 605,
606 (9th Cir. 2012) (unpublished) (citing Anderson); Ruiz v. Cate, 436 Fed. Appx. 760, 761
(9th Cir. 2011) (unpublished) (same).
26

Loftis v. Almagar, 704 F.3d 645, 647 (9th Cir. 2012) (citing Estelle v. McGuire, 502
U.S. 62, 67 (1991)). Gomez’s allegations that he did not receive an ICC hearing within ten
(10) days of his arrival or within thirty (30) days prior to his December 1, 2008, MERD, and
that he was held beyond his MERD without an appropriate lock-up order constitute nothing
more than violations of state regulations that do not rise to the level of a constitutional violation
cognizable under § 1983.
27

See Karim-Panahi v. Los Angeles Police Dep’t., 839 F.2d 621, 627 n.4 (9th Cir.

1988).
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With respect to his claim regarding the failure to return his personal property, it is clear
from the Complaint and its attachments that Gomez's property has been returned to him.
Consequently that matter is rendered moot.
IV.

CONCLUSION/ORDER
Although this Court would normally grant leave to amend, it appears in this case that

Gomez cannot plead any plausible set of facts that would entitle him to relief in any form in a
federal court.28 Indeed, the record appended to the Complaint reflects that the allegations of
misconduct are predicated upon mere suspicion, surmise, and conjecture, unsupported by
any factual allegations. Accordingly, the Complaint herein is hereby DISMISSED in its entirety
as against all Defendants, without leave to amend.
This Court, having fully considered the matter finds that reasonable jurists could not
disagree with this Court’s resolution of his constitutional claims or that jurists could conclude
the issues presented are adequate to deserve encouragement to proceed further.
Accordingly, any appeal would be frivolous or taken in bad faith.29 Accordingly, Gomez's in
forma pauperis status is hereby REVOKED.

28

See Hartman v. California Dept. of Corr. and Rehab., 707 F.3d 1141, 1130 (9th
Cir. 2013) (“A district court may deny leave to amend when amendment would be futile.”).
29

28 U.S.C. § 1915(a)(3); see Hooker v. American Airlines, 302 F.3d 1091, 1092
(9th Cir. 2002) (revocation of in forma pauperis status is appropriate if the appeal is frivolous).
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The Clerk of the Court is directed to enter judgment of dismissal, with prejudice, which
states that the dismissal counts as a “strike” under 42 U.S.C. § 1915(g).
IT IS SO ORDERED this 3rd day of November, 2014.
S/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

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