Taliano v. Johnson et al

Filing 14

ORDER DISMISSING ACTION for Failure to State a Claim signed by Magistrate Judge Barbara A. McAuliffe on 10/10/2014. CASE CLOSED. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BRANDITA TALIANO,

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Plaintiff,
v.
D. L. JOHNSON, et al.,

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Defendants.

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) 1:13-cv-00566-BAM (PC)
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) ORDER DISMISSING ACTION FOR
) FAILURE TO STATE A CLAIM
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I.

Screening Requirement and Standard

Plaintiff Brandita Taliano (“Plaintiff”) is proceeding pro se and in forma pauperis in this

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civil rights action pursuant to 42 U.S.C. § 1983. On May 14, 2014, the Court dismissed

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Plaintiff’s complaint with leave to amend. Plaintiff’s first amended complaint, filed on July 3,

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2014, is currently before the Court for screening.

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

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governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. §

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1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or

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malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary

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relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28

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U.S.C. § 1915(e)(2)(B)(ii).

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

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pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,

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1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65

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(2007)). While a plaintiff’s allegations are taken as true, courts “are 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).

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Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338,

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342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff’s claims must be facially

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plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each

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named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949

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(quotation marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir.

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2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere

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consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at

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678, 129 S.Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969.

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II.

Plaintiff’s Allegations

Plaintiff is incarcerated at the Central California Women’s Facility where the events in

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the complaint are alleged to have occurred. Plaintiff names B. J. Simons, former Associate

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Warden, and D. B. Rogers, Correctional Lieutenant, as defendants.

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Plaintiff alleges: On March 1, 2011, Correctional Officers Lopez and Shillings and

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Correctional Sergeant Ingram searched Plaintiff’s locker. During the search, Officer Shillings

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allegedly found the following papers: “A colored photo copy of a Massachusetts Driver’s

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license (ID), a copy of a receipt with an account on it, a 10-25-07 form with vehicle information

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on it, and an e-mail containing personnel staff information.” (ECF No. 12, p. 3.) On the same

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date, Plaintiff was placed in Administrative Segregation (Ad-Seg) for escape paraphernalia. A

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CDC 115 Rules Violation Report was not authored for another two weeks. The lock-up order

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CDC 114-D stated that the specific act was “Possession of Contraband.” However, while in Ad-

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Seg, Plaintiff received another lock-up order for “Alleged Escape Paraphernalia.” The alleged

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contraband was received by Plaintiff via institutional mail.

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The RVR for contraband was written by Correctional Lieutenant D.B. Rogers, who was
not present during the search. A supplemental report by Officer Shillings also was submitted.

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Plaintiff alleges that the RVR contained language that was patently false. Plaintiff

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contends that the Massachusetts Driver’s license, the receipt and the vehicle information did not

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belong to any personnel or staff at CCWF. Plaintiff claims that if any investigation had been

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done, it would have been realized that the claimed escape paraphernalia was for a 6’1” man,

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while Plaintiff is a 5’ woman. Thus, Plaintiff could not have used it to escape. On the other side

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of the page was pro bono attorney information and is the sole reason Plaintiff had the document.

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Plaintiff did not know that the license was there. Plaintiff asserts that no overt errors should be

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left in any CDCR document, especially errors that reflect on character.

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While Plaintiff was in Ad-Seg, an investigative employee (IE) was assigned to Plaintiff to

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assist in preparing for the RVR hearing. The IE, Correctional Officer Griffin, interviewed

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Plaintiff and noted the following discrepancies: 1. According to the RVR, there was vehicle

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information, an account number and a receipt with personnel staff information on the back of the

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paper with the photo copy of the driver’s license; 2. According to Correctional Lieutenant S.

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Zawolkow, there was pro bono attorney information on the back of the paper with the copy of

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the driver’s license; and 3. According to Officer Shillings, nothing was on the back of the paper

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with the driver’s license.
Plaintiff’s RVR was adjudicated by Correctional Lieutenant J. Alexander, who found

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Plaintiff guilty, but assessed zero days forfeiture of credits. Lieutenant Alexander did not

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address the false statement in the RVR, nor did she address the information contained on the

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other side of the driver’s license. Plaintiff asked Lieutenant Alexander about the discrepancies.

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Lieutenant Alexander stated that Plaintiff was only being charged with contraband, nothing

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more.

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As part of the review process that occurs after any RVR is adjudicated, Plaintiff’s RVR
was sent to the Chief Disciplinary Officer (CDO), Associate Warden B. J. Simon. Although this
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is standard policy, it is not standard policy for this same CDO to have been a witness in this

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matter and interviewed by the IE. Plaintiff submits that this is a conflict of interest because the

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CDO was a witness. Plaintiff claims that this is a violation of her due process rights and her

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right to a fair and impartial hearing.

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Plaintiff also alleges that the false statement in the RVR creates a substantial risk of harm
to her mental health and is defamation of character.
Plaintiff alleges that she was denied her due process rights and procedural protections in

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the following ways: “1) When an individual who was not even present during the room search

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wrote the RVR, which contained a false statement; 2) When no investigation was conducted in

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order to clarify the discrepancies with respect to the alleged escape paraphernalia; and 3) When a

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witness in this matter was one of the individuals reviewing Plaintiff’s RVR. 4) Plaintiff was

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never allowed to see nor receive a copy of the aforementioned documents, excluding the

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Massachusetts Driver’s Licenses, and it was a bad black and white copy.” (ECF No. 12, p. 5.)

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As relief, Plaintiff requests that the false statement be removed from her RVR.

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III.

Discussion

The crux of Plaintiff’s complaint is that her CDC 115 contained a false statement. As a

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general matter, “[a] prisoner has no constitutionally guaranteed immunity from being wrongly or

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falsely accused of conduct which may result in the deprivation of a protected liberty interest.”

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Witkin v. Swarthout, 2013 WL 6054451, *8 (E.D. Cal. Nov. 15, 2013) (citations omitted).

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However, such allegations may state a cognizable claim if the prisoner is not afforded procedural

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due process in connection with the issuance and hearing of disciplinary reports. See Hanrahan v.

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Lane, 747 F.2d 1137, 1141 (7th Cir. 1984).

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Plaintiff alleges that she was denied procedural protections, including a proper

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investigation and an inability to see or review the alleged escape paraphernalia. However,

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Plaintiff’s argument is undermined by the exhibits attached to her complaint. According to those

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exhibits, Plaintiff admitted to the possession of contraband and pled guilty to the charges of

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“Possession of Contraband” at the hearing. (ECF No. 12, pp. 12, 19-20.) Plaintiff was assessed

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zero days of forfeiture credits, and was merely counseled and reprimanded regarding proper
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conduct. As such, Plaintiff cannot state a claim based on a false statement in her disciplinary

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report.

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IV.

Conclusion and Order

Plaintiff’s complaint fails to state a cognizable claim. The deficiencies identified in the

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complaint cannot be cured by amendment and further leave to amend is not warranted. Lopez v.

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Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). Accordingly, Plaintiff’s complaint is HEREBY

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DISMISSED for failure to state a cognizable section 1983 claim. This dismissal is subject to the

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“three-strikes” provision set forth in 28 U.S.C. § 1915(g).

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IT IS SO ORDERED.

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Dated:

/s/ Barbara

October 10, 2014

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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