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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL CARTER,

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Plaintiff,

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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.,

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CASE NO. 1:16-cv-01201-MJS (PC)

Defendants.

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FINDINGS AND RECOMMENDATION TO
GRANT DEFENDANT’S MOTION TO
DISMISS

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(ECF NO. 17)

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FOURTEEN (14) DAY OBJECTION
DEADLINE

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I.

Procedural History

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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 28 U.S.C. § 1983. The action proceeds on a Fourteenth

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Amendment claim for damages against Defendant Silva in his individual capacity. The

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allegations arise out of a disciplinary hearing conducted by Defendant Silva.

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Before the Court is Defendant’s motion to dismiss. (ECF No. 17.) Plaintiff filed an

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opposition.1 (ECF No. 18.) Defendant filed a reply. (ECF No. 19.) The matter is

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submitted. Local Rule 230(l).

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II.

Plaintiff’s Claims

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Plaintiff is incarcerated at Salinas Valley State Prison but complains of acts that

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occurred at Corcoran State Prison in Corcoran, California. His allegations may be

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summarized essentially as follows.

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Non-party psychologist Jack Alvord reported that Plaintiff had made threats

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against staff members. Plaintiff was called to attend a Rules Violation Report (“RVR”)

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disciplinary proceeding before Lieutenant W. Brodie regarding the allegations. During

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the hearing, Brodie refused to make Alvord available by phone for questioning, despite

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Plaintiff’s insistence that he do so. Brodie found Plaintiff guilty of the alleged violation

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and assessed Plaintiff a thirty day loss of credits.

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Plaintiff appealed the result of his disciplinary proceeding. The appeal was
partially granted and the guilty finding was overturned.

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The disciplinary charge was reheard by Defendant Silva. Plaintiff submitted

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questions to be posed to Alvord. The questions were not answered and Silva did not

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attempt to contact Alvord by phone, stating that Alvord no longer worked at Corcoran.

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Plaintiff again was found guilty, resulting in a loss of good-time credits and a “point-hike”

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that keeps Plaintiff in a maximum security prison.

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Plaintiff submitted an appeal regarding his second disciplinary proceeding.

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However, he was transferred to another institution on July 7, 2016, and his subsequent

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inquiries regarding the appeal went unanswered.

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Plaintiff alleges that the rehearing by Silva violated his due process rights.
III.

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Legal Standard – Motion to Dismiss
A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency of

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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.

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a claim, and dismissal is proper if there is a lack of a cognizable legal theory or the

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absence of sufficient facts alleged under a cognizable legal theory. Conservation Force

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v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011). In resolving a 12(b)(6) motion, a

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court’s review is generally limited to the operative pleading. Daniels-Hall v. Nat’l Educ.

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Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). However, courts may properly consider matters

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subject to judicial notice and documents incorporated by reference in the pleading

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without converting the motion to dismiss to one for summary judgment. Lee v. City of

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Los Angeles, 250 F.3d 668, 688 (9th Cir. 1986); Mack v. S. Bay Beer Distributors, Inc.,

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798 F.2d 1279, 1282 (9th Cir. 1986).

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To survive a motion to dismiss, a complaint must contain sufficient factual matter,

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accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal,

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556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

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(2007)); Conservation Force, 646 F.3d at 1242; Moss v. U.S. Secret Serv., 572 F.3d

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962, 969 (9th Cir. 2009). The Court must accept the factual allegations as true and draw

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all reasonable inferences in favor of the non-moving party. Daniels-Hall, 629 F.3d at 998.

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Pro se litigants are entitled to have their pleadings liberally construed and to have any

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doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012);

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Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); Silva v. Di Vittorio, 658 F.3d

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1090, 1101 (9th Cir. 2011); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).

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IV.

Discussion

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Defendant contends that the complaint should be dismissed because the

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allegations fail to state a due process claim on three grounds: (1) Plaintiff had no due

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process right to call Alvord as a witness, (2) the decision not to call Alvord was justified,

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and (3) Plaintiff has not pled facts to suggest that the failure to call Alvord affected the

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result of the disciplinary proceeding.
Legal Standard – Disciplinary Proceedings

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A.

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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). Under the due
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process clause, minimum procedural protections are required for prison disciplinary

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proceedings. These include: (1) written notice of the charges; (2) at least 24 hours

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between the time the prisoner receives written notice and the time of the hearing, so that

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the prisoner may prepare his defense; (3) a written statement by the fact finders of the

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

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prisoner to call witnesses in his defense, when permitting him to do so would not be

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unduly hazardous to institutional safety or correctional goals; and (5) legal assistance to

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the prisoner where the prisoner is illiterate or the issues presented are legally complex.

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Id. at 563-71. As long as the five minimum Wolff requirements are met, due process has

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been satisfied. Walker v. Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994), abrogated on

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other grounds by Sandin v. 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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B.

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Defendant correctly points out that, while Plaintiff has a due process right to call

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witnesses in his own defense, he does not have a right to confront adverse witnesses.

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Wolff, 418 U.S. at 567-69. The Supreme Court has recognized that the confrontation of

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adverse witnesses may “present greater hazards to institutional interests” than the

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examination of witnesses in the inmate’s defense. Id. at 567; see also Baxter v.

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Palmigiano, 425 U.S. 308, 322 (1976) (“Confrontation and cross-examination . . . stand

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on a different footing [than the right to call witnesses] because of their inherent danger

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and the availability of adequate bases of decision without them.”). Accordingly, prison

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officials are not constitutionally required to permit inmates to question adverse

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witnesses. Thus, in alleging that he was denied the opportunity to confront Alvord,

Analysis

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Plaintiff has not alleged that he was denied any procedural due process required under

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Wolff. Although Plaintiff cites provisions of the California Code of Regulations that would

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permit him to confront adverse witnesses, California regulations do not dictate the

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outcome of the federal due process analysis.

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Plaintiff also appears to contend that Alvord’s testimony might not be adverse.

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Plaintiff speculates that, because Alvord no longer works for the prison, he may

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repudiate his report of Plaintiff’s misconduct. Such speculation is insufficient to state a

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claim. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“Factual allegations must be

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enough to raise a right to relief above the speculative level[.] (citations omitted)); see

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also Harrison v. Marshall, No. CV 10–2300–GW (RNB), 2010 WL 5422540, at *11 (C.D.

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Cal. July 28, 2010) (rejecting due process claim premised on petitioner’s unsupported

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speculation that correctional officer “would have testified differently than the account in

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his written report as set forth in the RVR” had he been subject to questioning by

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petitioner at disciplinary hearing). Plaintiff has not provided any factual allegations to

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suggest that Alvord’s testimony would have aided in his defense. Cf. Graves v. Knowles,

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231 Fed. Appx. 670, 673 (9th Cir. 2007) (holding that any possible error from failure to

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interview witnesses for disciplinary hearing was harmless where petitioner “did not

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indicate what information they would have provided in support of his defense”); Piggie v.

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Cotton, 342 F.3d 660, 666 (7th Cir. 2003) (per curiam) (holding that inmate did not have

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right to confront adverse witness in his disciplinary proceeding and, in any event, inmate

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showed no prejudice from refusal to call correctional officer who prepared rule violation

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report as witness, where Plaintiff did not “indicate what [officer's] testimony might have

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been or how it might have aided his defense”).

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Based on the foregoing, Plaintiff’s allegations fail to state a due process claim

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under Wolff. In general, a pro se Plaintiff is entitled to leave to amend unless “it appears

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beyond doubt that the plaintiff can prove no set of facts in support of his claim which

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would entitle him to relief.” Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984)

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(citation omitted). “Valid reasons for denying leave to amend include undue delay, bad
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faith, prejudice and futility.” Cal. Architectural Bldg. Prod. v. Franciscan Ceramics, 818

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F.2d 1276, 1293 (9th Cir. 1983); Lockman Found. v. Evangelical Alliance Mission, 930

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F.2d 764, 772 (9th Cir. 1991). Here, the defects in Plaintiff’s complaint do not appear

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capable of being cured through amendment. The motion to dismiss should be granted

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and further leave to amend should be denied as futile.

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V.

Conclusion and Recommendation

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Based on the foregoing, it is HEREBY RECOMMENDED that Defendant Silva’s

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motion to dismiss (ECF No. 17) be GRANTED and that further leave to amend be

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DENIED as futile.

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Additionally, the Clerk’s Office is directed to assign a District Judge to this matter
and to terminate the motion at ECF No. 18.

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The findings and recommendation will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1).

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Within fourteen (14) days after being served with the findings and recommendation, the

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parties may file written objections with the Court. The document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendation.” A party may respond

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to another party’s objections by filing a response within fourteen (14) days after being

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served with a copy of that party’s objections. The parties are advised that failure to file

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

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Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923

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F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

May 30, 2017

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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