Bibbs v. Tilton et al

Filing 23

ORDER DISMISSING CASE (Strike), with Prejudice, for Failure to State a Claim upon which Relief may be Granted under 1983; ORDER THAT DISMISSAL IS SUBJECT TO THE "THREE STRIKES" PROVISION SET FORTH IN 28 U.S.C. 1915(g); ORDER for Clerk to CLOSE CASE signed by Magistrate Judge Gary S. Austin on 1/10/2014. CASE CLOSED. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARTIN BIBBS,

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Plaintiff,

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vs.

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Defendants.

ORDER DISMISSING CASE, WITH
PREJUDICE, FOR FAILURE TO STATE A
CLAIM UPON WHICH RELIEF MAY BE
GRANTED UNDER § 1983

JAMES TILTON, et al.,

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1:11-cv-01012-GSA-PC

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ORDER THAT THIS DISMISSAL IS
SUBJECT TO THE ATHREE-STRIKES@
PROVISION SET FORTH IN 28 U.S.C. '
1915(g)

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ORDER FOR CLERK TO CLOSE CASE

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I.

BACKGROUND

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Martin Bibbs (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights

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action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on

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September 7, 2010. (Doc. 1.)

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On July 1, 2011, Plaintiff consented to the jurisdiction of a Magistrate Judge in this

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action, and no other parties have made an appearance. (Doc. 12.) Therefore, pursuant to

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Appendix A(k)(4) of the Local Rules of the Eastern District of California, the undersigned shall

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conduct any and all proceedings in the case until such time as reassignment to a District Judge

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is required. Local Rule Appendix A(k)(3).

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The court screened the Complaint and entered an order on April 19, 2013, dismissing

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the Complaint for failure to state a claim, with leave to amend. (Doc. 21.) On May 6, 2013,
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Plaintiff filed the First Amended Complaint, which is now before the court for screening.

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(Doc. 22.)

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II.

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).

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The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

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legally Afrivolous or malicious,@ that fail to state a claim upon which relief may be granted, or

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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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' 1915A(b)(1),(2). ANotwithstanding any filing fee, or any portion thereof, that may have been

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paid, the court shall dismiss the case at any time if the court determines that . . . the action or

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appeal fails to state a claim upon which relief may be granted.@ 28 U.S.C. ' 1915(e)(2)(B)(ii).

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A complaint is required to contain Aa short and plain statement of the claim showing

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that the pleader is entitled to relief . . . .@ Fed. R. Civ. P. 8(a)(2). Detailed factual allegations

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are not required, but A[t]hreadbare recitals of the elements of a cause of action, supported by

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mere conclusory statements, do not suffice.@ Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.

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1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955

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(2007)). While a plaintiff=s allegations are taken as true, courts Aare not required to indulge

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unwarranted inferences,@ Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)

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(internal quotation marks and citation omitted). Plaintiff must set forth Asufficient factual

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matter, accepted as true, to >state a claim to relief that is plausible on its face.=@ Iqbal 556 U.S.

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at 678. While factual allegations are accepted as true, legal conclusions are not. Id. The mere

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possibility of misconduct falls short of meeting this plausibility standard. Id. at 678-79; Moss

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v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

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III.

SUMMARY OF FIRST AMENDED COMPLAINT

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Plaintiff is presently incarcerated at Pelican Bay State Prison in Crescent City,

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California. The events at issue in the First Amended Complaint allegedly occurred at the

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California Correctional Institution (CCI) in Tehachapi, California, when Plaintiff was

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incarcerated there.

Plaintiff names as defendants B. Kingston (Special Agent, Office of
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Correctional Safety (“OCS”)), Lieutenant J. Gentry (Institutional Gang Investigator (“IGI”)),

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G. Adame (IGI), and J. Tyree (IGI) (collectively “Defendants”). Plaintiff’s factual allegations

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follow.

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In January 1992, Plaintiff was validated as an associate of the Mexican Mafia prison
gang (EME). That validation has never been rescinded.

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From December 2005 to April 10, 2008, Plaintiff was housed on the General Population

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at CCI. On June 29, 2007, IGI J. Tyree identified Plaintiff as an “active” (involved in current

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gang activity) member and participant of an established Mesa (governing body of the EME) on

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the facility. Plaintiff and the other members of this established Mesa were conducting all their

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business on behalf of and for the benefit of the EME. This information was discovered, but IGI

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J. Tyree did not identify one instance in which Plaintiff did anything for the prison gang.

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Because no actual gang activity was cited, Plaintiff was not removed from the General

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Population.

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On January 14, 2008, IGI G. Adame submitted false information as evidence for

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Plaintiff’s re-validation as an “active” associate, alleging that Plaintiff was identified as being

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responsible for activities being conducted in housing unit 2-A Section. However, Adame did

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not identify a single activity Plaintiff was responsible for.

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placement, gang activity must be shown. So Plaintiff was not removed from the General

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Population at that time.

To warrant indefinite Ad-Seg

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On March 4, 2008, IGI G. Adame knowingly submitted false information in the re-

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validation of Plaintiff. Adame stated that Plaintiff heard a phone conversation by another

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inmate, which was impossible according to Housing Movement records which showed that

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Plaintiff was in his cell on the opposite side of the building at the time of the alleged phone call.

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Adame denied Plaintiff any consideration in his rebuttal to the allegations and knowingly used

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false information, in collusion with IGI J. Tyree, resulting in Plaintiff being indefinitely

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segregated in Ad-Seg.

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On April 3, 2008, OCS Special Agent B. Kingston launched an operation called “Swift

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Response” to investigate the activities of the EME at CCI’s IV-A Facility where Plaintiff was
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housed. That investigation turned up confidential information that Plaintiff was engaged with

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the EME. The OCS investigation was concluded on April 3, 2008 and rubber-stamped again

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by OCS on May 6, 2008.

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On April 9, 2008, Assistant IGI C. A. Eubanks (not a named defendant) completed his

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investigation into Plaintiff’s continued association with the EME, which had been decided in

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1992 and had already been re-decided by OCS’s investigation of April 3, 2008.

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On April 10, 2008, Plaintiff was removed from the General Population and placed in

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Administrative Segregation (Ad-Seg), pending his re-validation as an “active” associate of a

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prison gang.

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On April 18, 2008, IGI Lieutenant J. Gentry submitted a false re-validation packet to

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OCS for Plaintiff’s validation as a prison gang associate. The report lacked any actual gang

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activity by Plaintiff, and the matter had already been decided by OCS two weeks earlier, which

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Gentry knew because he was part of OCS’s April 3, 2008 investigation and decision.

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Plaintiff requests the reversal of his “active” gang validation status and release from the

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SHU. He seeks injunctive relief instructing defendants to cease using identification criteria as a

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substitute for actual gang activity, and an award of full due process in the active/inactive

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categorization process. Plaintiff also seeks a declaratory judgment and monetary damages.

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IV.

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PLAINTIFF’S CLAIMS
The Civil Rights Act under which this action was filed provides:
Every person who, under color of [state law] . . . subjects, or
causes to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by
the Constitution . . . shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for
redress.

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42 U.S.C. ' 1983. ASection 1983 . . . creates a cause of action for violations of the federal

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Constitution and laws.@ Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997)

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(internal quotations omitted). ATo the extent that the violation of a state law amounts to the

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deprivation of a state-created interest that reaches beyond that guaranteed by the federal

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Constitution, Section 1983 offers no redress.@ Id.
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To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted

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under color of state law and (2) the defendant deprived him of rights secured by the

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Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.

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2006). AA person >subjects= another to the deprivation of a constitutional right, within the

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meaning of section 1983, if he does an affirmative act, participates in another=s affirmative acts,

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or omits to perform an act which he is legally required to do that causes the deprivation of

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which complaint is made.@ Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). AThe

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requisite causal connection can be established not only by some kind of direct, personal

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participation in the deprivation, but also by setting in motion a series of acts by others which

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the actor knows or reasonably should know would cause others to inflict the constitutional

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injury.@ Id. at 743-44.

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Due Process – Gang Validation – Ad-Seg Placement

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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.

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209, 221, 125 S.Ct. 2384 (2005). To state a claim, Plaintiff must first identify the interest at

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stake. Id. Liberty interests may arise from the Due Process Clause or from state law. Id. The

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Due Process Clause itself does not confer on inmates a liberty interest in avoiding more adverse

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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

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

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Conner, 515 U.S. 472, 481-84, 115 S.Ct. 2293 (1995)) (quotation marks omitted). Liberty

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interests created by prison regulations are generally limited to freedom from restraint which

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imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of

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prison life. Wilkinson, 545 U.S. at 221 (citing Sandin, 515 U.S. at 484) (quotation marks

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omitted); Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007). If a protected interest is

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identified, the inquiry then turns to what process is due. Wilkinson, 545 U.S. at 224.

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The assignment of validated gang members and associates to Ad-Seg or the Security

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Housing Unit (SHU) is an administrative measure rather than a disciplinary measure, and is
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Aessentially a matter of administrative discretion.@ Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir.

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2003) (quoting Munoz v. Rowland, 104 F.3d 1096, 1098 (9th Cir. 1997)).

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prisoners are entitled to the minimal procedural protections of adequate notice, an opportunity

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to be heard, and periodic review. Bruce, 351 F.3d at 1287 (citing Toussaint v. McCarthy, 801

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F.2d 1080, 1100-01 (9th Cir. 1986), abrogated in part on other grounds by Sandin, 515 U.S.

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472. In addition to these minimal protections, there must be Asome evidence@ supporting the

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decision.

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Although discussed in the context of a disciplinary hearing, the Ninth Circuit has stated that

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under the Hill standard, the evidence should have some indicia of reliability. Cato v. Rushen,

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As a result,

Id. (citing Superintendent v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768 (1985)).

824 F.2d 703, 705 (9th Cir. 1987).

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The Supreme Court has held that indefinite placement in Ohio’s “supermax” facility,

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where inmates are not eligible for parole consideration, imposed an “atypical and significant

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hardship within the correctional context.” Wilkinson, 545 U.S. at 223-25. Since indefinite

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placement in California’s SHU may render an inmate ineligible for parole consideration, this

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may create a liberty interest in not being placed indefinitely in the SHU which would entitle

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prisoners to the minimal procedural protections upon initial validation and subsequent reviews.

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See Ellis v.Cambra, No. 1:02-cv-05646 AWI SMS PC, 2010 WL 4137158, *8 (E.D. Cal. Oct.

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19, 2010).

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“It is clear . . . that prisons have a legitimate penological interest in stopping prison

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gang activity.” Bruce, 351 F.3d at 1289. To that end, California has developed procedures to

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identify and segregate gang members. See Cal.Code Regs., tit. 15 § 3378. To comply with due

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process, prison officials must provide the inmate with “some notice of the charges against him,

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and the opportunity to present his views to the prison official charged.” Bruce, 351 F.3d at

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1289. While Plaintiff alleges that some false information was used by defendants in deciding

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his re-validation, Plaintiff does not deny that defendants had “some evidence” with “some

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indicia of reliability” to decide that he was an “active” gang associate and should be housed

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indefinitely in Ad-Seg. Plaintiff has not alleged that the totality of evidence supporting the

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conclusion that he was an “active” gang associate was insufficient. Nor has Plaintiff alleged
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any facts suggesting that he was not notified that he was going to be validated, or that he was

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not informed of the evidence and given an opportunity to respond. Wilkinson, 545 U.S. at 228-

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29. Plaintiff therefore fails to state a cognizable claim for denial of due process based upon

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facts alleged in the First Amended Complaint. The First Amended Complaint should therefore

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be dismissed.

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V.

CONCLUSION

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The Court finds that Plaintiff=s First Amended Complaint fails to state any claims upon

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which relief can be granted under ' 1983 against any of the defendants. In this action, the

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Court previously granted Plaintiff an opportunity to amend the complaint, with ample guidance

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by the Court. Plaintiff has now filed two complaints without alleging facts against any of the

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defendants which state a claim under ' 1983. The Court finds that the deficiencies outlined

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above are not capable of being cured by amendment, and therefore further leave to amend shall

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not be granted. 28 U.S.C. ' 1915(e)(2)(B)(ii); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.

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2000).
Therefore, IT IS HEREBY ORDERED that pursuant to 28 U.S.C. ' 1915A and 28

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U.S.C. ' 1915(e):

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1.

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which relief may be granted under ' 1983;

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This action is DISMISSED with prejudice for failure to state a claim upon

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This dismissal is subject to the Athree-strikes@ provision set forth in 28 U.S.C. '

1915(g). Silva v. Vittorio, 658 F.3d 1090, 1098 (9th Cir. 2011); and

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3.

The Clerk is directed to CLOSE this case.

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IT IS SO ORDERED.
Dated:

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January 10, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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