Sims v. Gutierrez et al

Filing 15

ORDER DISMISSING ACTION with Prejudice for Failure to State a Claim; Dismissal Counts as a Strike Pursuant to 28 U.S.C. § 1915(g); Clerk to Terminate all Pending Motions and Close Case signed by Magistrate Judge Michael J. Seng on 06/17/2016. CASE CLOSED.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMES MARION SIMS,

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Plaintiff,
v.
J. GUTIERREZ,

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ORDER DISMISSING ACTION WITH
PREJUDICE FOR FAILURE TO STATE A
CLAIM
(ECF NO. 13)

Defendant.

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CASE NO. 1:15-cv-01214-MJS (PC)

DISMISSAL COUNTS AS A STRIKE
PURSUANT TO 28 U.S.C. § 1915(g)
CLERK TO TERMINATE ALL PENDING
MOTIONS AND CLOSE CASE

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action brought pursuant to 42 U.S.C. § 1983. (ECF Nos. 1 & 4.) Plaintiff has

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consented to Magistrate Judge jurisdiction. (ECF No. 8.) No other parties have appeared

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in the action.

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On August 5, 2015, Plaintiff filed his first civil rights complaint. (ECF No. 1.) On

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February 4, 2016, the Court issued an initial screening order dismissing Plaintiff’s

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complaint with leave to amend. (ECF No. 11.) Plaintiff filed the instant first amended

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complaint on March 10, 2016. (ECF No. 13.)

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I.

SCREENING REQUIREMENT

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

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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has

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raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which

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relief may be granted, or that seek monetary relief from a defendant who is immune from

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such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion

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thereof, that may have been paid, the court shall dismiss the case at any time if the court

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determines that . . . the action or appeal . . . fails to state a claim upon which relief may

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be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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II.

PLEADING STANDARD

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Section 1983 “provides a cause of action for the deprivation of any rights,

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privileges, or immunities secured by the Constitution and laws of the United States.”

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Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983).

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Section 1983 is not itself a source of substantive rights, but merely provides a method for

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vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94

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(1989).

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To state a claim under § 1983, a plaintiff must allege two essential elements:

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(1) that a right secured by the Constitution or laws of the United States was violated and

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(2) that the alleged violation was committed by a person acting under the color of state

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law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d

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1243, 1245 (9th Cir. 1987).

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

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

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

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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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Plaintiff must set forth “sufficient factual matter, accepted as true, to state a claim to relief
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that is plausible on its face.” Id. Facial plausibility demands more than the mere

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possibility that a defendant committed misconduct and, while factual allegations are

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accepted as true, legal conclusions are not. Id. at 677-78.

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III.

PLAINTIFF’S ALLEGATIONS

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The acts giving rise to this complaint occurred at California Correctional Institution

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(“CCI”) where Plaintiff was incarcerated. He names CCI Chief Deputy Warden J.

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Gutierrez as Defendant.

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Plaintiff’s claims arise from his confinement in the Security Housing Unit (“SHU”)

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at CCI. Documents attached to Plaintiff’s complaint reflect the following background

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facts, relevant to his allegations:

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On June 18, 2013, while housed at Salinas Valley State Prison, Plaintiff received

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a Rules Violation Report (“RVR”) for Battery on an Inmate with Serious Bodily Injury. He

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was assessed a 24 month SHU term with a minimum eligible release date (“MERD”) of

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December 18, 2014. Subsequently, Plaintiff received three additional “SHU-able” RVRs

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while at SVSP and, later, at CCI: (1) on August 10, 2013, for Threatening Violence

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Against Staff for which he was assessed a 9 month SHU term with a MERD of March 3,

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2014; (2) on February 17, 2014, for Refusing Housing; and (3) on March 25, 2014, for

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Refusing to Accept Assigned housing.

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assessed a 3 month mitigated consecutive SHU term with a controlling MERD of August

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26, 2015.

For the latter two offenses, Plaintiff was

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Plaintiff appealed the RVR for Battery on an Inmate with Serious Bodily Injury and

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on March 21, 2014, a Modification Order was issued ordering Plaintiff’s RVR be re-

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issued/re-heard due to evidentiary issues. The charges were re-adjudicated on April 13,

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2014 and, on April 22, 2014, the RVR was signed off on by the Chief Disciplinary Officer.

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Plaintiff’s 24 month SHU term for Battery on an Inmate with Physical Injury was upheld.

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On October 3, 2014 Plaintiff was transferred to CCI and placed in the SHU. Upon

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Plaintiff’s arrival at CCI he informed Defendant that he was being held illegally in the

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SHU as he “had no lock-up order or RVR.” On December 18, 2014, Defendant audited
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Plaintiff’s RVR and concluded that the guilty charge of Battery on an Inmate with Serious

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Bodily Injury was not supported by the evidence presented at the April 13, 2014 hearing.

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Accordingly, on January 5, 2015, Defendant Gutierrez notified Plaintiff that the charge

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would be modified and reduced to Battery on an Inmate. Plaintiff’s 24 month SHU term

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was voided. Plaintiff was scheduled for the Institutional Classification Committee (“ICC”)

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to reassess his SHU term, given that Plaintiff had received two additional SHU terms for

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unrelated offenses, and Battery on an Inmate still qualified as a “SHU-able” offense. On

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January 22, 2015, the CCI Chief Disciplinary officer imposed an 18 month SHU term.

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Plaintiff states Defendant wrongly reduced, rather than dismissed, the charges

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against Plaintiff without first holding a hearing.

Plaintiff further alleges the time

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limitations pursuant to California Code of Regulations title 15, section 3313(c) had run

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out and the “third level modification order” was never carried out. Defendant also is

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alleged to have retaliated against Plaintiff for complaining about prison officials’ conduct.

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Plaintiff also claims efendant also recommended Plaintiff be transferred to Pelican

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Bay State Prison (“PBSP”), falsely noting that Plaintiff had requested the transfer to be

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closer to family and friends. Plaintiff has no family or friends in the vicinity of PBSP; he

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is from Los Angeles County.

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Plaintiff attaches a letter to his complaint, addressed to “whom it may concern,” in

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which he states Correctional Officer F. Martinez is refusing to give Plaintiff and his

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cellmate their mail and has directed other COs to do the same. CO Martinez is not

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named as a defendant.
Plaintiff accuses Defendant of cruel and unusual punishment, violating Plaintiff’s

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due process rights, and retaliation. He seeks monetary damages.

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IV.

ANALYSIS

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A.

Due Process

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The Due Process Clause protects prisoners from being deprived of liberty without

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due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a

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cause of action for deprivation of procedural due process, a plaintiff must first establish
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the existence of a liberty interest for which the protection is sought. Liberty interests may

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arise from the Due Process Clause itself or from state law. Hewitt v. Helms, 459 U.S.

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460, 466 (1983). The Due Process Clause itself does not confer on inmates a liberty

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interest in being confined in the general prison population instead of segregation. See id.

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at 466-68. Liberty interests created by state law are limited to freedom from restraint

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which “imposes atypical and significant hardship on the inmate in relation to the ordinary

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incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995).

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“Prison disciplinary proceedings are not part of a criminal prosecution, and the full

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panoply of rights due a defendant in such proceedings does not apply.” Wolff, 418 U.S.

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at 556. The minimum procedural requirements that must be met in such proceedings

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are: (1) written notice of the charges; (2) at least 24 hours between the time the prisoner

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receives written notice and the time of the hearing, so that the prisoner may prepare his

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defense; (3) a written statement by the fact finders of the evidence they rely on and

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reasons for taking disciplinary action; (4) the right of the prisoner to call witnesses in his

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defense, when permitting him to do so would not be unduly hazardous to institutional

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safety or correctional goals; and (5) legal assistance to the prisoner where the prisoner is

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illiterate or the issues presented are legally complex. Id. at 563-71. As long as the five

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minimum Wolff requirements are met, due process has been satisfied. Walker v.

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Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994), abrogated on other grounds by Sandin v.

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Connor, 515 U.S. 472 (1995).

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In addition, “some evidence” must support the decision of the hearing officer,

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Superintendent v. Hill, 472 U.S. 445, 455 (1985), and the evidence must have some

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indicia of reliability, Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987). The “some

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evidence” standard is not particularly stringent and the relevant inquiry is whether “there

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is any evidence in the record that could support the conclusion reached. . . .” Hill, 472

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U.S. at 455-56 (emphasis added).

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Here, Plaintiff has not alleged facts to demonstrate that his confinement in the

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SHU presented an atypical and significant hardship in relation to the ordinary incidents

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of prison life.

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Additionally, Plaintiff has failed to allege any deficiencies in the procedures

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afforded to him. As stated, Plaintiff appeared before ICCs more than once in relation to

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these charges. If, during those proceedings, Plaintiff was afforded the five protections

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described in Wolff, due process has been satisfied. Thus, to state a claim, Plaintiff must

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allege that he was not afforded one of the following: (1) written notice of the charges; (2)

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at least 24 hours between the time the prisoner receives written notice and the time of

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the hearing, so that the prisoner may prepare his defense; (3) a written statement by the

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fact finders of the evidence they rely on and reasons for taking disciplinary action; (4)

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the right of the prisoner to call witnesses in his defense, when permitting him to do so

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would not be unduly hazardous to institutional safety or correctional goals; and (5) legal

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assistance to the prisoner where the prisoner is illiterate or the issues presented are

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legally complex.

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Plaintiff also has failed to link Defendant to any due process violation. Under §

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1983, Plaintiff must demonstrate that each named defendant personally participated in

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the deprivation of his rights. Iqbal, 556 U.S. 662, 676-77 (2009); Simmons v. Navajo

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Cnty., Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d

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1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). “A

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person subjects another to the deprivation of a constitutional right, within the meaning of

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section 1983, if he does an affirmative act, participates in another’s affirmative acts, or

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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).

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Plaintiff seems to argue that upon his arrival at CCI, he should have had a new

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hearing on his RVR for Battery on an Inmate with Serious Injury, and Defendant’s

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decision to reduce that charge rather than dismiss it without a hearing violated due

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process. These arguments appear to be based primarily on the California regulations.
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However, California regulations do not dictate the outcome of the federal due process

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analysis. Nor do the Title 15 regulations governing the conduct of prison officials entitle

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an inmate to sue civilly for their violation. See e.g., Vasquez v. Tate, No. 1:10-cv-1876-

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JLT (PC), 2012 WL 6738167, at *9 (E.D. Cal. Dec. 28, 2012); Davis v. Powell, 901 F.

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Supp. 2d 1196, 1211 (S.D. Cal. 2012). Accordingly, Plaintiff’s allegation that regulations

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were not followed, standing alone, fails to state a claim.

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Furthermore, Plaintiff has provided no support for his claim that the charge

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should have been dismissed rather than reduced or for his assertion that Defendant was

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required to conduct a de novo hearing on Plaintiff’s RVR. Plaintiff’s documentation

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shows that Plaintiff’s RVR was already re-heard and re-adjudicated, as ordered by the

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March 21, 2014 Modification Order, while Plaintiff was still housed at SVSP. When

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Plaintiff transferred to CCI, Defendant merely audited the RVR and, based on that audit,

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decided to reduce the charge. Plaintiff has not shown that either due process or the

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applicable regulations required Defendant to do anything further. See 15 Cal Code

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Regs. § 3315(g); see also Foster v. Statti, No. 2:10-cv-0929-TLN-AC, 2013 WL

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5348098, at *10 (E.D. Cal. Sept. 23, 2013) (discussing audit procedure).

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In sum, Plaintiff’s allegations fail to state a due process claim. Plaintiff previously

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was advised of the legal standards applicable to his claims and has failed to cure noted

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defects. Further leave to amend this claim appears to be futile and will be denied.

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B.

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The Eighth Amendment’s prohibition against cruel and unusual punishment

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protects prisoners from inhumane methods of punishment and inhumane conditions of

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confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (citations

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omitted). “[A] prison official may be held liable under the Eighth Amendment for denying

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humane conditions of confinement only if he knows that inmates face a substantial risk

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of serious harm and disregards that risk by failing to take reasonable measures to abate

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it.” Farmer v. Brennan, 511 U.S. 825, 847 (1994).

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Eighth Amendment

A conditions of confinement claim has both an objective and a subjective
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component. See Farmer, 511 U.S. at 834. “First, the deprivation alleged must be . . .

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sufficiently serious,” and must “result in the denial of the minimal civilized measure of

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life’s necessities.” Id. (internal quotation marks and citations omitted) “[E]xtreme

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deprivations are required to make out a conditions-of-confinement claim.” Hudson v.

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McMillian, 503 U.S. 1, 9 (1992).

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Second, the prison official must have acted with “deliberate indifference” to inmate

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health or safety. Farmer, 511 U.S. at 834. “Mere negligence is not sufficient to establish

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liability.” Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). Rather, a plaintiff must

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show that a defendant knew of, but disregarded, an excessive risk to inmate health or

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safety. Farmer, 511 U.S. at 837. That is, “the official must both be aware of facts from

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which the inference could be drawn that a substantial risk of serious harm exists, and he

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must also draw the inference.” Id.

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Plaintiff has not alleged any excessive risk to his health or safety resulting from

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the RVR, his SHU term, or his transfer to PBSP. Nor has he alleged that Defendant was

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aware of such risks but failed to take measures to abate them. Accordingly, he has failed

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to state a claim for deliberate indifference. Plaintiff previously was advised of these

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defects and nonetheless failed to cure them. Further leave to amend will be denied. C.

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C.

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Plaintiff alleges that Defendant retaliated against Plaintiff for filing complaints

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Retaliation

against CCI staff.

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“Within the prison context, a viable claim of First Amendment retaliation entails

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five basic elements: (1) An assertion that a state actor took some adverse action against

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an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4)

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chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not

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reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559,

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567-68 (9th Cir. 2005).

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The second element of a prisoner retaliation claim focuses on causation and

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motive. See Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009). A plaintiff must show
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that his protected conduct was a “‘substantial’ or ‘motivating’ factor behind the

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defendant’s conduct.” Id. (quoting Sorrano’s Gasco. Inc. v. Morgan, 874 F.2d 1310, 1314

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(9th Cir. 1989). Although it can be difficult to establish the motive or intent of the

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defendant, a plaintiff may rely on circumstantial evidence. Bruce v. Ylst, 351 F.3d 1283,

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1288-89 (9th Cir. 2003) (finding that a prisoner establishes a triable issue of fact

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regarding prison officials’ retaliatory motives by raising issues of suspect timing,

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evidence, and statements); Hines v. Gomez, 108 F.3d 265, 267-68 (9th Cir. 1997); Pratt

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v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995) (“timing can properly be considered as

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circumstantial evidence of retaliatory intent”).

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The third prong can be satisfied by various activities. Filing a grievance is a

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protected action under the First Amendment. Valandingham v. Bojorquez, 866 F.2d

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1135, 1138 (9th Cir. 1989). Pursuing a civil rights legal action is similarly protected under

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the First Amendment. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985).

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With respect to the fourth prong, “[it] would be unjust to allow a defendant to

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escape liability for a First Amendment violation merely because an unusually determined

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plaintiff persists in his protected activity . . . .” Mendocino Envtl. Ctr. v. Mendocino Cnty.,

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192 F.3d 1283, 1300 (9th Cir. 1999). The correct inquiry is to determine whether an

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official’s acts would chill or silence a person of ordinary firmness from future First

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Amendment activities. Rhodes, 408 F.3d at 568-69 (citing Mendocino Envtl. Ctr., 192

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F.3d at 1300).

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With respect to the fifth prong, a prisoner must affirmatively show that “the prison

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authorities’ retaliatory action did not advance legitimate goals of the correctional

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institution or was not tailored narrowly enough to achieve such goals.” Rizzo, 778 F.2d at

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532.

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Plaintiff’s first amended complaint is completely silent on the adverse action
Defendant allegedly subjected him to in retaliation for his staff complaints.

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Assuming that Plaintiff intends to allege that either his retention in SHU or his

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transfer to PBSP was retaliatory, his allegations nonetheless fail to state a claim. He
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provides no facts on which to conclude that Defendant’s actions were motivated by

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Plaintiff filing complaints against CCI staff. He does not state when these alleged

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complaints were filed, who they were filed against, how Defendant came to know of

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them, or why they would spur Defendant to retaliate.

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Plaintiff previously was advised of the applicable legal standard and has failed to

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state a cognizable retaliation claim. Further leave to amend appears futile and will be

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denied.

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D.

Withholding Mail

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CO Martinez is not a defendant; therefore, the Court need not analyze whether

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Plaintiff has made any cognizable claims against this individual for withholding Plaintiff’s

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mail. Furthermore, Plaintiff may not add new, unrelated claims against CO Martinez in

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this action. The alleged withholding of Plaintiff’s mail has no relation his forced

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confinement in the SHU, and any claims against CO Martinez therefore belong in a

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separate suit. Fed. R. Civ. P. 20(a)(2) (a plaintiff may only sue multiple defendants in

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the same action if at least one claim against each defendant arises out of the same

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“transaction, occurrence, or series of transactions or occurrences” and there is a

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“question of law or fact common to all defendants.”); Coughlin v. Rogers, 130 F.3d 1348,

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1351 (9th Cir.1997); Desert Empire Bank v. Ins. Co. of North America, 623 F.2d 1371,

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1375 (9th Cir.1980).

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V.

CONCLUSION AND ORDER

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Plaintiff’s first amended complaint fails to state a cognizable claim. He previously

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was advised of his pleading deficiencies and afforded the opportunity to correct them.

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He failed to do so. Any further leave to amend reasonably appears futile and will be

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denied.

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Accordingly, it is HEREBY ORDERED that:

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1. The action is DISMISSED with prejudice for failure to state a claim;

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2. Dismissal counts as a strike pursuant to the “three strikes” provision set

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forth in 28 U.S.C. § 1915(g); and
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3. The Clerk of the Court shall terminate all pending motions and close the

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case.

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IT IS SO ORDERED.
Dated:

June 17, 2016

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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