Carter v. Brodie

Filing 20

FINDINGS and RECOMMENDATIONS recommending that Defendant Silva's Motion to Dismiss 17 be GRANTED and that further leave to amend be DENIED as futile ;ORDER TERMINATING 18 ; ORDERED Clerk's Office to assign a District Judge to this matter; new case number is 1:16-cv-1201-LJO-MJS (PC); referred to Judge O'Neill,signed by Magistrate Judge Michael J. Seng on 05/30/17. (Objections to F&R due : 14-Day Deadline) (Martin-Gill, S)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 MICHAEL CARTER, 11 Plaintiff, 12 13 v. ORDER DIRECTING CLERK’S OFFICE TO ASSIGN A DISTRICT JUDGE TO THIS MATTER ORDER DIRECTING CLERK’S OFFICE TO TERMINATE ECF NO. 18 J. SILVA, et al., 14 CASE NO. 1:16-cv-01201-MJS (PC) Defendants. 16 FINDINGS AND RECOMMENDATION TO GRANT DEFENDANT’S MOTION TO DISMISS 17 (ECF NO. 17) 18 FOURTEEN (14) DAY OBJECTION DEADLINE 15 19 20 21 22 I. Procedural History 23 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil 24 rights action brought pursuant to 28 U.S.C. § 1983. The action proceeds on a Fourteenth 25 Amendment claim for damages against Defendant Silva in his individual capacity. The 26 allegations arise out of a disciplinary hearing conducted by Defendant Silva. 27 28 Before the Court is Defendant’s motion to dismiss. (ECF No. 17.) Plaintiff filed an 1 opposition.1 (ECF No. 18.) Defendant filed a reply. (ECF No. 19.) The matter is 2 submitted. Local Rule 230(l). 3 II. Plaintiff’s Claims 4 Plaintiff is incarcerated at Salinas Valley State Prison but complains of acts that 5 occurred at Corcoran State Prison in Corcoran, California. His allegations may be 6 summarized essentially as follows. 7 Non-party psychologist Jack Alvord reported that Plaintiff had made threats 8 against staff members. Plaintiff was called to attend a Rules Violation Report (“RVR”) 9 disciplinary proceeding before Lieutenant W. Brodie regarding the allegations. During 10 the hearing, Brodie refused to make Alvord available by phone for questioning, despite 11 Plaintiff’s insistence that he do so. Brodie found Plaintiff guilty of the alleged violation 12 and assessed Plaintiff a thirty day loss of credits. 13 14 Plaintiff appealed the result of his disciplinary proceeding. The appeal was partially granted and the guilty finding was overturned. 15 The disciplinary charge was reheard by Defendant Silva. Plaintiff submitted 16 questions to be posed to Alvord. The questions were not answered and Silva did not 17 attempt to contact Alvord by phone, stating that Alvord no longer worked at Corcoran. 18 Plaintiff again was found guilty, resulting in a loss of good-time credits and a “point-hike” 19 that keeps Plaintiff in a maximum security prison. 20 Plaintiff submitted an appeal regarding his second disciplinary proceeding. 21 However, he was transferred to another institution on July 7, 2016, and his subsequent 22 inquiries regarding the appeal went unanswered. 23 24 Plaintiff alleges that the rehearing by Silva violated his due process rights. III. 25 Legal Standard – Motion to Dismiss A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency of 26 1 27 28 Plaintiff’s opposition is styled as an “Opposition and Motion to Dismiss Defendant’s Motion to Dismiss.” It is, in essence, a request that the motion to dismiss be denied. It therefore appears to be mis -characterized as a motion. The arguments contained in Plaintiff’s brief are considered herein. However, the Clerk’s Office will be directed to terminate the motion at ECF No. 18. 2 1 a claim, and dismissal is proper if there is a lack of a cognizable legal theory or the 2 absence of sufficient facts alleged under a cognizable legal theory. Conservation Force 3 v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011). In resolving a 12(b)(6) motion, a 4 court’s review is generally limited to the operative pleading. Daniels-Hall v. Nat’l Educ. 5 Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). However, courts may properly consider matters 6 subject to judicial notice and documents incorporated by reference in the pleading 7 without converting the motion to dismiss to one for summary judgment. Lee v. City of 8 Los Angeles, 250 F.3d 668, 688 (9th Cir. 1986); Mack v. S. Bay Beer Distributors, Inc., 9 798 F.2d 1279, 1282 (9th Cir. 1986). 10 To survive a motion to dismiss, a complaint must contain sufficient factual matter, 11 accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 12 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 13 (2007)); Conservation Force, 646 F.3d at 1242; Moss v. U.S. Secret Serv., 572 F.3d 14 962, 969 (9th Cir. 2009). The Court must accept the factual allegations as true and draw 15 all reasonable inferences in favor of the non-moving party. Daniels-Hall, 629 F.3d at 998. 16 Pro se litigants are entitled to have their pleadings liberally construed and to have any 17 doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012); 18 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); Silva v. Di Vittorio, 658 F.3d 19 1090, 1101 (9th Cir. 2011); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 20 IV. Discussion 21 Defendant contends that the complaint should be dismissed because the 22 allegations fail to state a due process claim on three grounds: (1) Plaintiff had no due 23 process right to call Alvord as a witness, (2) the decision not to call Alvord was justified, 24 and (3) Plaintiff has not pled facts to suggest that the failure to call Alvord affected the 25 result of the disciplinary proceeding. Legal Standard – Disciplinary Proceedings 26 A. 27 The Due Process Clause protects prisoners from being deprived of liberty without 28 due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Under the due 3 1 process clause, minimum procedural protections are required for prison disciplinary 2 proceedings. These include: (1) written notice of the charges; (2) at least 24 hours 3 between the time the prisoner receives written notice and the time of the hearing, so that 4 the prisoner may prepare his defense; (3) a written statement by the fact finders of the 5 evidence they rely on and reasons for taking disciplinary action; (4) the right of the 6 prisoner to call witnesses in his defense, when permitting him to do so would not be 7 unduly hazardous to institutional safety or correctional goals; and (5) legal assistance to 8 the prisoner where the prisoner is illiterate or the issues presented are legally complex. 9 Id. at 563-71. As long as the five minimum Wolff requirements are met, due process has 10 been satisfied. Walker v. Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994), abrogated on 11 other grounds by Sandin v. Connor, 515 U.S. 472 (1995). 12 In addition, “some evidence” must support the decision of the hearing officer, 13 Superintendent v. Hill, 472 U.S. 445, 455 (1985), and the evidence must have some 14 indicia of reliability, Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987). The “some 15 evidence” standard is not particularly stringent and the relevant inquiry is whether “there 16 is any evidence in the record that could support the conclusion reached. . . .” Hill, 472 17 U.S. at 455-56 (emphasis added). 18 B. 19 Defendant correctly points out that, while Plaintiff has a due process right to call 20 witnesses in his own defense, he does not have a right to confront adverse witnesses. 21 Wolff, 418 U.S. at 567-69. The Supreme Court has recognized that the confrontation of 22 adverse witnesses may “present greater hazards to institutional interests” than the 23 examination of witnesses in the inmate’s defense. Id. at 567; see also Baxter v. 24 Palmigiano, 425 U.S. 308, 322 (1976) (“Confrontation and cross-examination . . . stand 25 on a different footing [than the right to call witnesses] because of their inherent danger 26 and the availability of adequate bases of decision without them.”). Accordingly, prison 27 officials are not constitutionally required to permit inmates to question adverse 28 witnesses. Thus, in alleging that he was denied the opportunity to confront Alvord, Analysis 4 1 Plaintiff has not alleged that he was denied any procedural due process required under 2 Wolff. Although Plaintiff cites provisions of the California Code of Regulations that would 3 permit him to confront adverse witnesses, California regulations do not dictate the 4 outcome of the federal due process analysis. 5 Plaintiff also appears to contend that Alvord’s testimony might not be adverse. 6 Plaintiff speculates that, because Alvord no longer works for the prison, he may 7 repudiate his report of Plaintiff’s misconduct. Such speculation is insufficient to state a 8 claim. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“Factual allegations must be 9 enough to raise a right to relief above the speculative level[.] (citations omitted)); see 10 also Harrison v. Marshall, No. CV 10–2300–GW (RNB), 2010 WL 5422540, at *11 (C.D. 11 Cal. July 28, 2010) (rejecting due process claim premised on petitioner’s unsupported 12 speculation that correctional officer “would have testified differently than the account in 13 his written report as set forth in the RVR” had he been subject to questioning by 14 petitioner at disciplinary hearing). Plaintiff has not provided any factual allegations to 15 suggest that Alvord’s testimony would have aided in his defense. Cf. Graves v. Knowles, 16 231 Fed. Appx. 670, 673 (9th Cir. 2007) (holding that any possible error from failure to 17 interview witnesses for disciplinary hearing was harmless where petitioner “did not 18 indicate what information they would have provided in support of his defense”); Piggie v. 19 Cotton, 342 F.3d 660, 666 (7th Cir. 2003) (per curiam) (holding that inmate did not have 20 right to confront adverse witness in his disciplinary proceeding and, in any event, inmate 21 showed no prejudice from refusal to call correctional officer who prepared rule violation 22 report as witness, where Plaintiff did not “indicate what [officer's] testimony might have 23 been or how it might have aided his defense”). 24 Based on the foregoing, Plaintiff’s allegations fail to state a due process claim 25 under Wolff. In general, a pro se Plaintiff is entitled to leave to amend unless “it appears 26 beyond doubt that the plaintiff can prove no set of facts in support of his claim which 27 would entitle him to relief.” Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984) 28 (citation omitted). “Valid reasons for denying leave to amend include undue delay, bad 5 1 faith, prejudice and futility.” Cal. Architectural Bldg. Prod. v. Franciscan Ceramics, 818 2 F.2d 1276, 1293 (9th Cir. 1983); Lockman Found. v. Evangelical Alliance Mission, 930 3 F.2d 764, 772 (9th Cir. 1991). Here, the defects in Plaintiff’s complaint do not appear 4 capable of being cured through amendment. The motion to dismiss should be granted 5 and further leave to amend should be denied as futile. 6 V. Conclusion and Recommendation 7 Based on the foregoing, it is HEREBY RECOMMENDED that Defendant Silva’s 8 motion to dismiss (ECF No. 17) be GRANTED and that further leave to amend be 9 DENIED as futile. 10 11 Additionally, the Clerk’s Office is directed to assign a District Judge to this matter and to terminate the motion at ECF No. 18. 12 The findings and recommendation will be submitted to the United States District 13 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). 14 Within fourteen (14) days after being served with the findings and recommendation, the 15 parties may file written objections with the Court. The document should be captioned 16 “Objections to Magistrate Judge’s Findings and Recommendation.” A party may respond 17 to another party’s objections by filing a response within fourteen (14) days after being 18 served with a copy of that party’s objections. The parties are advised that failure to file 19 objections within the specified time may result in the waiver of rights on appeal. 20 Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 21 F.2d 1391, 1394 (9th Cir. 1991)). 22 23 24 25 IT IS SO ORDERED. Dated: May 30, 2017 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 26 27 28 6

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