Luster v. Amezcua et al

Filing 57

FINDINGS and RECOMMENDATIONS Recommending That Defendant's 37 Motion for Summary Judgment be Granted, on the Ground That Plaintiff's Claims are Barred by Heck v. Humphrey, signed by Magistrate Judge Gary S. Austin on 4/1/19. Objections to F&R Due Within Fourteen Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAPHNYE S. LUSTER,

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Plaintiff,

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vs.
RAUL H. AMEZCUA, et al.,

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Defendants.

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1:16-cv-00554-LJO-GSA-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
BE GRANTED, ON THE GROUND THAT
PLAINTIFF’S CLAIMS ARE BARRED BY
HECK V. HUMPHREY
(ECF No. 37.)
OBJECTIONS, IF ANY, DUE WITHIN
FOURTEEN (14) DAYS

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I.

BACKGROUND

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Daphnye S. Luster (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with

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the Second Amended Complaint filed on June 11, 2018, against defendant Lieutenant (Lt.) Raul

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H. Amezcua (“Defendant”) for retaliation under the First Amendment. (ECF No. 24.)1

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On September 24, 2018, the court issued an order dismissing all other claims and defendants
from this case for Plaintiff’s failure to state a claim. (ECF No. 28.)

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On January 17, 2019, Defendant filed a motion for summary judgment on the ground that

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the undisputed facts show that Plaintiff’s claims are barred under the favorable termination

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doctrine in Heck v. Humphrey, 512 U.S. 477, 486–87 (1994).2 (ECF No. 37.) On February 21,

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2019, Plaintiff filed an opposition to the motion. (ECF Nos. 46-50.) On March 14, 2019,

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Defendant filed a reply. (ECF No. 55.) The motion is deemed submitted. Local Rule 230(l).
For the reasons set forth below, the court concludes that Plaintiff’s case is Heck-barred

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and recommends that Defendant’s motion for summary judgment be granted.3

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II.

SUMMARY JUDGMENT STANDARD

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Any party may move for summary judgment, and the court shall grant summary judgment

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if the movant shows that there is no genuine dispute as to any material fact and the movant is

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entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted);

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Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s position,

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whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular

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parts of materials in the record, including but not limited to depositions, documents, declarations,

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or discovery; or (2) showing that the materials cited do not establish the presence or absence of

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a genuine dispute or that the opposing party cannot produce admissible evidence to support the

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fact. Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The court may consider other materials

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in the record not cited to by the parties, but it is not required to do so. Fed. R. Civ. P. 56(c)(3);

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Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord

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Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).

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Defendant does not bear the burden of proof at trial and in moving for summary judgment,

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he only needs to prove an absence of evidence to support Plaintiff’s case. In re Oracle Corp. Sec.

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Concurrently with his motion for summary judgment, Defendant served Plaintiff with the
requisite notice of the requirements for opposing the motion. Woods v. Carey, 684 F.3d 934, 939-41 (9th Cir. 2012);
Rand v. Rowland, 154 F.3d 952, 960-61 (9th Cir. 1998). (ECF No. 37-1.)
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Because the court decides this matter on the Heck issue, it declines to consider the other issues
raised in the motion.

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Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106

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S.Ct. 2548 (1986)). If Defendants meet their initial burden, the burden then shifts to Plaintiff “to

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designate specific facts demonstrating the existence of genuine issues for trial.” In re Oracle

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Corp., 627 F.3d at 387 (citing Celotex Corp., 477 U.S. at 323). This requires Plaintiff to “show

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more than the mere existence of a scintilla of evidence.” Id. (citing Anderson v. Liberty Lobby,

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Inc., 477 U.S. 242, 252, 106 S.Ct. 2505 (1986)).

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In judging the evidence at the summary judgment stage, the court may not make

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credibility determinations or weigh conflicting evidence, Soremekun v. Thrifty Payless, Inc., 509

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F.3d 978, 984 (9th Cir. 2007) (quotation marks and citation omitted), and it must draw all

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inferences in the light most favorable to the nonmoving party and determine whether a genuine

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issue of material fact precludes entry of judgment, Comite de Jornaleros de Redondo Beach v.

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City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011) (quotation marks and citation omitted).

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The court determines only whether there is a genuine issue for trial. Thomas v. Ponder, 611 F.3d

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1144, 1150 (9th Cir. 2010) (quotation marks and citations omitted).

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In arriving at these findings and recommendations, the court carefully reviewed and

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considered all arguments, points and authorities, declarations, exhibits, statements of undisputed

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facts and responses thereto, if any, objections, and other papers filed by the parties. Omission of

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reference to an argument, document, paper, or objection is not to be construed to the effect that

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this court did not consider the argument, document, paper, or objection. This court thoroughly

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reviewed and considered the evidence it deemed admissible, material, and appropriate.

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III.

PLAINTIFF’S ALLEGATIONS AT ISSUE4

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Plaintiff is presently incarcerated at the California Institution for Women in Corona,

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

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Plaintiff’s Second Amended Complaint is verified, and her allegations constitute evidence where
they are based on her personal knowledge of facts admissible in evidence. Jones v. Blanas, 393 F.3d 918, 922-23
(9th Cir. 2004). The summarization of Plaintiff’s claim in this section should not be viewed by the parties as a ruling
that the allegations are admissible. The court will address, to the extent necessary, the admissibility of Plaintiff’s
evidence in the sections which follow.

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Central California Women’s Facility (CCWF) in Chowchilla, California, when Plaintiff was

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incarcerated there in the custody of the California Department of Corrections and Rehabilitation

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(CDCR). Plaintiff’s factual allegations follow.

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On February 24, 2015, Plaintiff reported a battery that had taken place in her room

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between two inmates. Battery between these two inmates continued through the next day. On

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the first day, one of the inmates had to receive staples. On the second day, Plaintiff informed

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defendant Lt. Amezcua of the incidents, and he [Amezcua] told Plaintiff he was convinced the

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inmate with the staples had fallen off her top bunk. Plaintiff informed him that this was not true

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and told him that the whole room would like to make a statement. Lt. Amezcua refused to

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interview the room. Plaintiff informed Lt. Amezcua that the inmate was being abused by her

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lover and if he was not going to do anything Plaintiff would then take it to the next level. As part

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of the WAC,5 Plaintiff had a duty to help her fellow peers. Lt. Amezcua placed Plaintiff in

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administrative segregation for the same battery she had reported to him. The retaliation against

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Plaintiff began.

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The false charge against Plaintiff caused her great suffering because she was denied her

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parole date on December 20, 2015 for having a recent 115,6 was taken to court for these charges,

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lost good time credits that she cannot recover and spent fifteen months in the SHU7 when she

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could have been preparing for her parole hearing.

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Plaintiff seeks monetary damages and to have the Rules Violation Report removed from

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her prison file.

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IV.

PLAINTIFF’S RETALIATION CLAIM

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

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basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2)

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Women’s Advisory Council.

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CDCR form 115 is a Rules Violation Report.

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Security Housing Unit.
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because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s

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exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate

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correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); accord Watison

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v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th

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Cir. 2009).

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After screening the Second Amended Complaint under 28 U.S.C. § 1915A, the court

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found that liberally construed, Plaintiff states a cognizable claim for retaliation against Defendant

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Lt. Amezcua. (ECF No. 26 at 10:21-22 (findings and recommendations); ECF No. 28 (adopted

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by district judge)).

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V.

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Defendant submitted the following Statement of Undisputed Facts. (ECF No. 37-3.)

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DEFENDANT’S STATEMENT OF UNDISPUTED FACTS (DUF)8

1.

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Defendant’s Undisputed Facts
Plaintiff Daphnye Suppora Luster aka Daphney
Suppora Luster (CDCR No. W-54123) is an
inmate in the custody of the California
Department of Corrections and Rehabilitation
(“CDCR”).

Evidence
Complaint, ECF No. 1; First
Amended Complaint, ECF No.
20; Second Amended
Complaint, ECF No. 24 (SAC);
Declaration of J. Smith in
Support of Defendant’s Motion
for Summary Judgment (Smith
Decl.) at ¶ 3.

Plaintiff filed this action on April 4, 2016,
regarding an alleged incident at the Central
California Women’s Facility (CCWF).

Complaint, ECF No. 1; First
Amended Complaint, ECF No.
20; SAC.

Plaintiff’s operative complaint alleges, among
other things, the following:

See SAC, generally.

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2.

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Plaintiff failed to properly address Defendant’s statement of undisputed facts, as required by
Local Rule 260(b). Accordingly, the court may consider Defendant’s assertions of fact as undisputed for purposes
of this motion. Id.; Fed. R. Civ. P. 56(e)(2). However, in light of the Ninth Circuit’s directive that a document filed
pro se is “to be liberally construed,” Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, and Rule 8(e) of the
Federal Rules of Civil Procedure that “[p]leadings shall be construed so as to do justice,” see Erickson v. Pardus,
551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167 L. Ed. 2d 1081 (2007), the court shall strive to resolve this motion for
summary judgment on the merits.

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Defendant’s Undisputed Facts
On February 24, 2015, Plaintiff reported a battery
that had taken place in Plaintiff’s room between
two inmates. The battery between these two
inmates continued through the next day. On the
first day, the inmate had to receive staples. On the
second day, Plaintiff informed Defendant Lt.
Amezcua of the incidents, and he [Amezcua] told
Plaintiff he was convinced the inmate with the
staples had fallen off her top bunk. Plaintiff
informed him that that was not true, and told him
that the whole room would like to make a
statement. Defendant Amezcua refused to
interview the room. Plaintiff informed Defendant
Amezcua that the inmate was being abused by her
lover, and if he was not going to do anything
Plaintiff would then “take it to the next level.”
Instead, Defendant Amezcua placed Plaintiff in
administrative segregation for the same battery
she reported to him. Plaintiff was then charged
with the same battery via a Rules Violation
Report (RVR), and found guilty. This RVR was
false and issued in retaliation for Plaintiff
threatening to report Defendant Amezcua to his
supervisor for not properly investigating the
assault in her housing unit.

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Evidence

In screening the Second Amended Complaint, the
court found Plaintiff stated a potentially
cognizable claim of retaliation against Defendant
Amezcua in relation to the issuance of a false
RVR following Plaintiff’s statement that she
would “take it to the next level” if he did not
properly investigate the assault. The Court
dismissed all other claims and defendants.

ECF Nos. 26, 28.

On May 14, 2015, an investigation into Plaintiff’s
alleged involvement into the February 24, 2015
incident, was concluded. Due to the information
gathered in the investigation, Plaintiff was
charged with RVR log number 15-A-05-026
“Battery on an Inmate with a Weapon.”

SAC at 29; Declaration of R.
Cartier in Support of
Defendant’s Motion for
Summary Judgment (Cartier
Decl.) ¶ 4, Exhibit B at 1, 4246, 61-63; Smith Decl. ¶ 3,
Exhibit A.

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Defendant’s Undisputed Facts
The investigation revealed that on February 24,
2015, at approximately 1519 hours, two alarms
were received. Upon their arrival, responding
staff found two broken windows and Inmate
Ramirez laying on the floor bleeding from a head
wound. The occupants of Room 13 were ordered
to exit their room and sit in the dayroom for
interviews. Due to the nature of Ramirez’s
injuries and the suspicious behavior of some of
the inmates, Defendant Amezcua instructed
responding staff to place all the inmates in
restraints and escort them into the facility
program office for medical evaluations and
urinalysis testing. Due to Ramirez’s injures, she
was taken via the Emergency Response Vehicle
to the Treatment and Triage Area (TTA) where
she received staples to the back of her head.
Inmates Luster, Ruiz, and Montford were placed
in restraints and escorted to the facility clinic for a
medical evaluation. Defendant Amezcua
interviewed inmate Ramirez upon her return.
During the interview, inmate Ramirez initially
stated she had fainted from distress due to hearing
bad news from home. She then changed her story,
stating she slipped off her bed. Finally, Ramirez
informed Defendant Amezcua that she had been
drinking alcohol, got drunk, and fell off her bed.
Confidential sources subsequently revealed that
Plaintiff battered inmate Ramirez with a weapon,
specifically a lock. The confidential sources also
revealed that another inmate battered Ramirez by
punching her in the head and face. As result of
this investigation, inmates Luster, Montford, and
Ruiz were all placed in Administrative
Segregation housing pending further
investigation.
Investigation and confidential sources revealed
that Plaintiff used a lock as a weapon and struck
inmate Ramirez in the back of the head and as a
result, Ramirez fell to the ground. Plaintiff then
began to kick and punch Ramirez.

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Evidence
SAC at 32, 38; Cartier Decl. ¶
4, Exhibit B at 1-5, 30, 32, 3435, 42, 45, 60-63; Smith Decl.
¶ 3, Exhibit A.

Defendant’s Undisputed Facts
On June 17, 2015, Plaintiff appeared before the
Senior Hearing Officer (SHO) for adjudication of
the RVR.

Evidence
SAC at 24; Smith Decl. ¶ 3,
Exhibit A at 2.

In the RVR and incident report, Plaintiff was
informed that the matter was referred to the
Madera County District Attorney for possible
felony prosecution.
Investigative Employee Officer Orozco was
assigned in accordance with California Code of
Regulations, Title 15, section 3315(d)(1)(A).
Officer Orozco interviewed inmate Luster in
order to gather information to assist the SHO, and
gathered additional evidence as requested.

SAC at 25; Cartier Decl. ¶ 4,
Exhibit B at 5; Smith Decl. ¶ 3,
Exhibit A at 3.

Officer Orozco also interviewed inmate Slater,
inmate Valdez, inmate Rico, inmate Reyes,
inmate Kusalich, inmate Preasmyer, Defendant
Amezcua, Officer Martinez, Sergeant Rubalcava,
Licensed Vocational Nurse Shoroye, Sergeant
Flores, Officer Valencia, and Sergeant Ybarra per
Plaintiff’s request.

SAC 19-23, 25-26; Smith Decl.
¶ 3, Exhibit A at 3.

The SHO also considered information from five
confidential sources as part of the RVR.

SAC at 26, 29; Smith Decl. ¶ 3,
Exhibit A at 1, 4-5, 7-8.

After considering all evidence, including
Plaintiff’s not guilty plea, the SHO found Plaintiff
guilty of “Battery on an Inmate with a Weapon.”
Plaintiff was assessed 181 days loss of
behavioral/work credits.

SAC 27-28; Smith Decl. ¶ 3,
Exhibit A at 4-6.

13.

Plaintiff’s guilty finding for RVR log number 15A-05-026 still stands and her credits have not
been restored.

Smith Decl. ¶ 4.

14.

The Madera County District Attorney’s office
prosecuted Plaintiff for the February 24, 2015
incident.

Cartier Decl. ¶ 3, Exhibit A;
Cartier Decl. ¶ 4, Exhibit B;
Defendant’s Request for
Judicial Notice, Exhibit A.

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SAC at 25; Smith Decl. ¶ 3,
Exhibit A at 3.

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On August 11, 2015, the Madera County District
Cartier Decl. ¶ 3, Exhibit A;
Attorney’s Office charged Plaintiff with a felony
Defendant’s Request for
in violation of California Penal Code section 4500 Judicial Notice, Exhibit A.
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Defendant’s Undisputed Facts
in case number MCR052134A. Specifically,
Plaintiff was charged with unlawfully, with
malice aforethought, assaulting inmate Ramirez
with a deadly weapon and with force likely to
produce great bodily injury while
undergoing a life sentence in the California State
Prison, Central California Women’s Facility.
At the August 14, 2015 preliminary hearing,
Plaintiff pleaded guilty to California Penal Code
section 242, misdemeanor battery arising out of
the February 24, 2015 incident.

Evidence

As part of her guilty plea, Plaintiff stipulated to
the factual basis of the charges.

Cartier Decl. ¶ 6, Exhibit C;
Defendant’s Request for
Judicial Notice, Exhibit A.

As a result of her guilty plea, Plaintiff was
sentenced to the Madera County Department of
Corrections for three days. She was also ordered
to pay $630.00 in fines and restitution.

Cartier Decl. ¶ 6, Exhibit C;
Cartier Decl. ¶ 7; Defendant’s
Request for Judicial Notice,
Exhibit A.

This conviction still stands today and has not
been overturned.

Cartier Decl. ¶ 9.

Cartier Decl. ¶ 6, Exhibit C;
Defendant’s Request for
Judicial Notice, Exhibit A.

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VI.

DEFENDANT’S ARGUMENT -- PLAINTIFF IS BARRED FROM THIS ACTION

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UNDER THE FAVORABLE TERMINATION RULE IN HECK V. HUMPHREY

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Defendant’s evidence includes Plaintiff’s allegations in her complaints; the declarations

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of J. Smith (Custodian of Inmates’ Case Records) and Rachel Cartier (Senior Deputy District

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Attorney), Plaintiff’s prison records; and, court records.

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Defendant argues that a review of Plaintiff’s Second Amended Complaint, the associated

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Rules Violation Report (RVR), and the related criminal case show that Plaintiff’s suit is barred

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under the favorable termination doctrine. Defendant argues that the effect of Heck and its

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progeny on Plaintiff’s claims for retaliation regarding the falsification of the RVR is clear:

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Plaintiff’s demand for damages or declaratory relief on those claims is barred until her conviction

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and the RVR are overturned. Defendant claims that courts in this jurisdiction and in other circuits

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have concluded that the Heck rule bars retaliation claims.

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In support of this argument, Defendant Amezcua cites Plaintiff’s allegations that she

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asked Defendant to investigate a battery in her housing unit and when he refused, Plaintiff

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threatened to “take it to the next level.” (DUF 3-4.) Plaintiff alleges that in retaliation, Defendant

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placed Plaintiff in administrative segregation and had her charged with the very battery she

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requested to be investigated. (DUF 3.) Plaintiff was later found guilty of the RVR and was

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assessed a loss of credits. (DUF 3, 6, 12.) Subsequently, the Madera County District Attorney

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filed felony charges against Plaintiff arising out of the February 24, 2015 incident, which Plaintiff

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pleaded guilty to and stipulated to the factual basis of the charges. (DUF 15-18.) Neither the

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RVR, nor the criminal conviction, have been overturned. (DUF 13, 19.)

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Defendant contends that Plaintiff’s allegations, taken as true, meet the first two of the

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three elements of an “ordinary” retaliation claim, because Plaintiff engaged in constitutionally

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protected activity and she suffered an adverse action that would chill an ordinary person from

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pursuing that activity again. (ECF No. 37-2 at 8:14-16.) However, Defendant maintains that

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Plaintiff’s retaliation claim is not “ordinary” because it has the character of a claim for retaliatory

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prosecution, which may not be brought against a prosecutor, who is immune from liability for

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the decision to prosecute. (Id. at 8:17-19.) Under the Supreme Court’s decision in Hartman,9

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Defendant reasons that the causation element of the retaliation claim is lacking without some sort

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of allegation to “bridge the gap,” such as a showing by Plaintiff of a “retaliatory motive on the

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part of an official urging prosecution combined with an absence of probable cause supporting the

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prosecutor’s decision to go forward.” (Id. at 9:11-16.) Defendant concludes that Hartman

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controls Plaintiff’s case insofar as a plaintiff must plead and prove there was no probable cause

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for his or her arrest and prosecution.

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Defendant argues that the litigation of Plaintiff’s action would necessarily center on the

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lawfulness of the underlying criminal conviction and would, in effect, re-litigate Plaintiff’s

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Hartman v. Moore, 547 U.S. 250 (2006).
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conviction for the February 24, 2015 attack on which she was found guilty following the RVR

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hearing and to which she pleaded guilty in Madera County, stipulating to the facts that gave rise

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to the charges. Defendant concludes that Heck clearly forbids this case from going forward

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because a successful § 1983 action here would negate not only the RVR but Plaintiff’s criminal

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admission to guilt and the facts of the RVR. Thus the motion for summary judgment should be

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granted.

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VII.

DEFENDANT’S BURDEN

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The court finds that Defendant has met his burden of demonstrating that Plaintiff’s § 1983

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case is barred under the favorable termination doctrine in Heck, which was extended under

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Edwards v. Balisok, 520 U.S. 641 (1997) to actions under § 1983 that, if successful, would

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necessarily demonstrate the invalidity of confinement or its duration. The burden shifts to

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Plaintiff to come forward with evidence showing why this case should not be dismissed as barred

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by Heck.

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VIII. PLAINTIFF’S STATEMENT OF UNDISPUTED FACTS (PUF)

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Plaintiff submitted the following facts in support of her opposition to Defendant’s motion
for summary judgment. (ECF No. 47 at 2-7.)

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1.

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2.

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Plaintiff’s Undisputed Facts
Statement of Facts.
Parties.
Defendant is a CDCR Lieutenant who was
working at CCWF on February 24, 2015.

Evidence10

Plaintiff is a CDCR inmate who was housed at the
Central California Women’s Facility (CCWF) on
February 24, 2015.

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3.

Two lovers, inmate Ramirez and inmate
Montford, had been drinking inmatemanufactured alcohol when inmate Montford
started to batter inmate Ramirez by pulling her off

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Plaintiff has not supported her Undisputed Facts by citing to any materials in the record.
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Plaintiff’s Undisputed Facts
the top bunk, causing her to fall and hit her head
on the cement floor, resulting in serious injuries
to inmate Ramirez that required staples.

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7.

Plaintiff, inmate Ramirez, and inmate Rico were
three (3) of the confidential sources that first
informed Defendant of the battery and informed
Defendant that the battery had taken place on
February 24, 2015.
The other two (2) confidential sources were
inmate Ramirez and inmate Montford who turned
the incident on Plaintiff.
When Plaintiff first reported the battery to
Defendant, he rehoused inmate Montford in
administrative segregation pending an
investigation into the attack/battery, not Plaintiff.
Rules Violation and Investigation.
The investigation revealed that on February 24,
2015, at approximately 1519 hours, two alarms
were activated. Upon their arrival, responding
staff found two broken windows and inmate
Ramirez lying on the floor bleeding from a head
wound. The occupants of Room 13 were escorted
to the dayroom for interviews as to who had
broken the windows, and were released back to
their room, while the occupants of Room 14 were
placed in restraints and escorted to the program
office for medical evaluations and urinalysis
testing (UA). However, there are no records of
those UA results from the lab. Due to inmate
Ramirez’s injuries, she was taken to the
Treatment and Triage area (TTA) where she
received staples to the back of her head.
Defendant interviewed inmate Ramirez upon her
return and during the interview, inmate Ramirez
initially stated she had fainted from distress due
to hearing bad news from home. Then she
changed her story, stating that she slipped off her
top bunk. Then, she (Ramirez) stated that she had
been drinking alcohol and fell off her bunk.

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Evidence10

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13.

Plaintiff’s Undisputed Facts
As to the objective, Plaintiff argues that given
inmate Ramirez’s inconsistent and false
statements, as well as the observation and
statement from Defendant himself, who stated
that he was convinced that Ramirez had fallen off
her bunk, Seamons v. Snow, 206 F.3d 1021, 1026
(10th Cir. 2000), the investigation and evidence
show inconsistent statements from both
Defendant and inmate Ramirez.
Investigation and confidential sources four and
five (4-5) are inmate Ramirez and inmate
Montford [who] stated that Plaintiff used a lock
and struck inmate Ramirez in the head. However,
within months of investigation, there was never a
lock found.
Investigative Employee Officer Orozco was
assigned in accordance with California Code of
Regulations, Title 15, section 3315(d)(v)(A).
However, officer Orozco never conducted an
interview with Plaintiff or Plaintiff’s witnesses, as
Defendant claims.
Plaintiff had refused the first Investigative
Employee (IE) and was appointed correctional
officer Valencia as her IE, who conducted all
interviews with Plaintiff and her witnesses during
interviews which extended into the 9:30pm count,
so Plaintiff had to be out-counted to complete the
interviews.
After Officer Valencia had completed the
interviews, then Officer Orozco came to
Plaintiff’s cell door through the window and
informed Plaintiff that Defendant removed
Officer Valencia and appointed him as Plaintiff’s
IE, and that was the extent of any conversation
between Officer Orozco and Plaintiff.
There were never five (5) confidential sources
who stated that Plaintiff was the one who attacked
inmate Ramirez, because three (3) of the five (5)
are Plaintiff, Ruiz, and Rico, with the other two
being Ramirez and Montford.
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Evidence10

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14.

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Plaintiff’s Undisputed Facts
Madera County Criminal Conviction.
On August 11, 2015, Plaintiff was given a plea
deal for the February 24, 2015 incident, of a
misdemeanor and sentenced to 3 days of time
served. However, Plaintiff pleaded guilty under
distress and out of fear, because inmate Ruiz had
to parole to the Madera County Jail when a hold
was placed on her due to Defendant’s referral of
Ruiz for criminal charges without reading her a
Miranda warning. The facts and evidence clearly
show that Defendant had written up Ruiz only for
a “fight,” which is not a criminal charge. So
Plaintiff was truly experiencing a great deal of
distress and fear because she felt there was no
way she could receive a fair trial, especially since
Defendant got away with [illegible] charging
Ruiz, and no one, even the courts, noticed. He
went forward and charged inmate Ruiz with a
battery w/a weapons charge. So Plaintiff took the
deal against her attorney’s advice out of distress,
fear, worry and agony as to what would happen to
her and her future.

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15.

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16.

Plaintiff’s Allegations.
On February 24, 2015, an incident occurred in
Plaintiff’s room between a couple of lovers. The
battery between inmate Montford and inmate
Ramirez continued through to the next day. On
the first day of the incident, February 24, 2015,
when Ramirez received staples, and while the
whole Room 14 was still in the program office,
Plaintiff informed Defendant that the room would
like to be interviewed as to how inmate Ramirez
received her injuries. Defendant told Plaintiff
that he was convinced that Ramirez received her
injuries by falling off the bunk. Plaintiff then
informed Defendant that Ramirez’s statement was
not true and Defendant still refused to interview
the room.
The next day after the second battery Plaintiff
went to her housing officer S.D. Martinez and
informed him that inmate Ramirez was being
abused by her lover, inmate Montford, and he
14

Evidence10

Plaintiff’s Undisputed Facts
informed Plaintiff to take it to Sgt. Flores.
Plaintiff did, and Flores told her that he could not
do anything about it because it did not happen on
his watch (2nd watch). So Plaintiff went to
Flores’s boss, Sgt. Rubalcaba, and informed him
of the battery. Sgt. Rubalcaba also told Plaintiff
that he could not do anything because it did not
happen on his watch (2nd watch).

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17.

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10
11

Evidence10

So Plaintiff waited until 3rd watch and went to
speak with Defendant again and informed him
that he should check on inmate Ramirez because
she was being battered by her lover inmate
Montford and that is how Ramirez had sustained
the injuries to her head and the new injuries.
Defendant still informed Plaintiff that he was
convinced that Ramirez had fallen off her bed.

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18.

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Plaintiff then informed Defendant that she
[Plaintiff] would take this incident to the next
level. Bibbs v. Early, 541 F.3d 267 (5th Cir.
2008). Under 42 U.S.C. § 1983. Only then did
Defendant place inmate Montford in
administrative segregation for battery on inmate
Ramirez. Then on February 26, 2015, inmate
Montford was released from administrative
segregation (ASU), and Plaintiff was placed in
ASU for the same battery that she broke her neck
to report. Plaintiff was seeking protection from
unsafe living conditions - protected conduct.
Maben v. Thelen, 887 F.3d 252 (2018).

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IX.

PLAINTIFF’S ARGUMENTS
Plaintiff’s evidence includes her allegations in the Second Amended Complaint, the

declaration of inmate Sondra Slater (ECF No. 46 at 58), the declaration of inmate Toya Lee (ECF
No. 46 at 59), and Plaintiff’s prison records.
Plaintiff argues that the undisputed facts show that her claims are not barred under the
favorable termination doctrine in Heck, and that Heck is not an inappropriate case to support a
First Amendment retaliation claim. Plaintiff asserts that the retaliation caused her extreme
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1

distress when she was denied parole after being incarcerated for 25 years. Plaintiff asserts that

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she is in the process of contesting her RVR to be overturned via a writ of habeas corpus and is

3

currently awaiting a ruling. Plaintiff contends that once the RVR is overturned there will be a

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substantial causal relationship between the protected activity and the adverse action. Plaintiff

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asserts that she pleaded guilty while under total distress, fear, and agony, but that she has new

6

evidence to present that refutes her charges as to the RVR which will meet the third element of

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her retaliation claim.

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As to the declarations of Senior Deputy District Attorney Rachel Cartier and J. Smith,

9

submitted by Defendant, Plaintiff argues they are not credible because “co-workers within an

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organization have the probability to cover up for one another.” (ECF No. 48 at 1:18-22; ECF

11

No. 49 at 1:18-22.) Plaintiff states that she pleaded guilty to the false charges so quickly, without

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a preliminary hearing, as District Attorney Cartier stated because the courts dropped the charges

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to a misdemeanor with 3 days’ time served, and Plaintiff was fearful that she would not receive

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a fair jury trial. Plaintiff also states that she suffered the effects of Defendant’s retaliation by

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being denied parole on December 20, 2017 and getting a 5-year roll over, all due to Defendant

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Amezcua’s false report against her.

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X.

DISCUSSION

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Defendant argues that Plaintiff’s retaliation claim against Defendant Amezcua is barred

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by the favorable termination rule, also known as the Heck bar. He argues that because Plaintiff

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was convicted of a criminal misdemeanor, and forfeited 181 days of credit through institutional

21

discipline for the same conduct that she bases her retaliation claim upon, her claim is barred.11

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A state prisoner cannot challenge the fact or duration of his/her confinement in a Section 1983

23

action; his/her sole remedy lies in habeas corpus relief. Wilkinson v. Dotson, 544 U.S. 74, 78

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Defendant requests that the court take judicial notice of the court filings and orders in the
Superior Court of California. (ECF No. 38.) The court may take judicial notice of court records and administrative
records. Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n.l (N.D. Cal. 1978), aff’d, 645 F.2d 699 (9th Cir.),
cert. denied, 454 U.S. 1126 (1981); Fed. R. Evid. 201 (a court may take judicial notice of facts that are capable of
accurate determination by sources whose accuracy cannot reasonably be questioned). Therefore, Defendant’s
request for the court to take judicial notice is granted.
16

1

(2005). Often referred to as the favorable termination rule or the Heck bar, this exception to §

2

1983’s otherwise broad scope applies whenever state prisoners “seek to invalidate the duration

3

of their confinement-either directly through an injunction compelling speedier release or

4

indirectly through a judicial determination that necessarily implies the unlawfulness of the State’s

5

custody.” Wilkinson, 544 U.S. at 81; Heck, 512 U.S. at 486–487; Edwards, 520 U.S. at 644.

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Thus, “a state prisoner’s [Section] 1983 action is barred (absent prior invalidation)—no matter

7

the relief sought (damages or equitable relief), no matter the target of the prisoner’s suit (state

8

conduct leading to conviction or internal prison proceedings)—if success in that action would

9

necessarily demonstrate the invalidity of confinement or its duration.” Id. at 81–82.12

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The Heck bar also applies in the prison disciplinary context if the “defect complained of

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by [Plaintiff] would, if established, necessarily imply the invalidity of the deprivation of [her]

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good-time credits[,]” Edwards, 520 U.S. at 646; Nonnette v. Small, 316 F.3d 872, 875 (9th Cir.

13

2002), and if the restoration of those credits “necessarily” would “affect the duration of time to

14

be served,” Muhammed v. Close, 540 U.S. 749, 754 (2004) (per curiam). See also Nettles v.

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Grounds, 830 F.3d 922, 929 n.4 (9th Cir. 2016) (en banc) (“Heck applies only to administrative

16

determinations that ‘necessarily’ have an effect on ‘the duration of time to be served.’” (citations

17

omitted)); Ramirez v. Galaza, 334 F.3d 850, 856 (9th Cir. 2003) (“[T]he applicability of the

18

favorable termination rule turns solely on whether a successful § 1983 action would necessarily

19

render invalid a conviction, sentence, or administrative sanction that affected the length of the

20

prisoner’s confinement.”).

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The defendant has the burden of demonstrating that Heck bars a plaintiff’s Section 1983

22

claim. See Sandford v. Motts, 258 F.3d 1117, 1119 (9th Cir. 2001). “[I]f a criminal conviction

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arising out of the same facts stands and is fundamentally inconsistent with the unlawful behavior

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It’s instructive to note however, that if the RVR decision were the only finding against
Plaintiff for the battery of inmate Ramirez, and had she not been convicted of a corresponding misdemeanor
offense, there is a line of cases following Ramirez v. Galaza, 334 F.3d 850, which could apply to find that
Plaintiff’s case is not necessarily barred by Heck. Moreover, state prisoners can bring 1983 actions when their
lawsuits do not, in effect, collaterally attack the duration of their confinement nor a conviction—for instance, when
a prisoner is serving a life term—as it appears Plaintiff is in the case at bar. Moreover, if success in a 1983
lawsuit does not cause an immediate release or a shorter stay in prison, the Heck bar does not apply. But given
the facts of the instant case a discussion on this point is merely academic.
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1

for which section 1983 damages are sought, the 1983 action must be dismissed.” Smith v. City

2

of Hemet, 394 F.3d 689, 695 (9th Cir. 2005) (en banc) (quoting Smithart v. Towery, 79 F.3d 951,

3

952 (9th Cir. 1996)). “In evaluating whether claims are barred by Heck, an important touchstone

4

is whether a § 1983 plaintiff could prevail only by negating ‘an element of the offense of which

5

he has been convicted.’” Cunningham v. Gates, 312 F.3d 1148, 1153–54 (9th Cir. 2002) (quoting

6

Heck, 512 U.S. at 487 n.6). Thus, a plaintiff’s claims are barred when they depend on a theory

7

that calls into question whether she committed the offense for which she was convicted.

8

Plaintiff argues that her claim is not Heck-barred because Defendant Amezcua’s RVR

9

was entirely false. That the events did not happen as Defendant Amezcua described them in the

10

RVR, nor as they were found in the criminal or institutional disciplinary proceedings. Plaintiff

11

argues that she pleaded guilty against the advice of her counsel because the courts reduced the

12

charges to a misdemeanor and she was under duress and fearful that she would not receive a fair

13

jury trial. Plaintiff does not dispute that she has not overturned her criminal conviction or

14

disciplinary punishment, but contends that she is in the process of contesting her RVR via a writ

15

of habeas corpus.

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Defendant has met his burden to show that the Heck bar applies here, and Plaintiff’s

17

arguments confirm that her claim is barred. According to Plaintiff’s opposition, her theory of

18

liability against Defendant Amezcua in this § 1983 action is that Defendant Amezcua made a

19

false report against her because she was attempting to report a battery between two inmates.

20

Even though claim preclusion does not clearly apply here, the effect of a finding that

21

Plaintiff’s RVR decision is invalid would cause an inconsistent decision. Plaintiff was found

22

guilty in her state criminal proceeding based on the same facts relied upon at the RVR hearing.

23

“By precluding parties from contesting matters that they have had a full and fair opportunity to

24

litigate,” the doctrines of claim preclusion and issue preclusion “foster reliance on judicial action

25

by minimizing the possibility of inconsistent decision.” Taylor v. Sturgell, 553 U.S. 880, 892

26

(2008) (internal quotation marks and citation omitted.) Here, Plaintiff states that she pleaded

27

guilty to battery in state court. (PUF No. 14.) The Madera County District Attorney filed felony

28

charges against Plaintiff arising out of the February 24, 2015 incident, to which Plaintiff pleaded
18

1

guilty and stipulated to the factual basis of the charges. (DUF 15-18.) Neither the RVR nor the

2

criminal conviction have been overturned. (DUF 13, 19.)

3

A finding in Plaintiff’s favor in this case would necessarily imply the invalidity of

4

Plaintiff’s criminal conviction and disciplinary punishment as Plaintiff’s theory depends on a

5

finding that the charges against her were false. Therefore, the court finds that Plaintiff’s First

6

Amendment retaliation claim against Defendant Amezcua is barred by Heck because a favorable

7

termination on the retaliation claim would necessarily imply the invalidity of her misdemeanor

8

conviction, which has not been overturned. As a result, the court recommends that Defendant’s

9

motion for summary judgment be granted, and the claim against Defendant Amezcua be

10

dismissed, without prejudice. See Washington v. Los Angeles Cty. Sheriff’s Dep’t, 833 F.3d

11

1048, 1055 (9th Cir. 2016) (Heck dismissal is made without prejudice); Belanus v. Clark, 796

12

F.3d 1021, 1025 (9th Cir. 2015) (same).

13

XI.

14

CONCLUSION AND RECOMMENDATIONS
The court finds that Plaintiff’s claims in this case are barred by the favorable termination

15

rule of Heck v. Humphrey, and this case should be dismissed without prejudice.

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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1.

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19

Defendant Amezcua’s motion for summary judgment, filed on January 17, 2019,
(ECF No. 37), be GRANTED;

2.

Plaintiff’s claims against Defendant Amezcua for retaliation in violation of the

20

First Amendment be DISMISSED, without prejudice, as barred by the favorable

21

termination rule of Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L. Ed.

22

2d 383 (1994); and

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3.

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These findings and recommendations are submitted to the United States District Judge

25

assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen

26

(14) days from the date of service of these findings and recommendations, any party may file

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written objections with the court.

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Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be served

The Clerk of Court be directed to close this case.

Such a document should be captioned “Objections to

19

1

and filed within ten (10) days after the date the objections are filed. The parties are advised that

2

failure to file objections within the specified time may result in the waiver of rights on appeal.

3

Wilkerson, 772 F.3d at 838-39 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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7

IT IS SO ORDERED.
Dated:

April 1, 2019

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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