Jackson v. Diaz et al

Filing 19

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS to Dismiss Non-Cognizable Claims and Defendants 11 , signed by District Judge Dale A. Drozd on 9/7/17: The Clerk of Court is directed to terminate defendants Joosten, Hall, Ssaly, Diaz, Ramos, and Cota on the docket in this case; This case now proceeds against defendants Davis and M. Lunes; and This case is REFERRED back to the assigned magistrate judge for further proceedings consistent with this order. (Hellings, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DEMORIA JACKSON,

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Plaintiff,

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v.

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M. LUNES et al.,

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No. 1:17-cv-00027-DAD-MJS

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS TO DISMISS NONCOGNIZABLE CLAIMS AND
DEFENDANTS
Defendants.
(Doc. No. 11)

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Plaintiff Demoria Jackson is a prisoner proceeding pro se and in forma pauperis in this

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civil rights action brought pursuant to 42 U.S.C. § 1983. The matter was referred to a United

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States magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On May 16, 2017, the assigned magistrate judge screened plaintiff’s first amended

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complaint and found it stated cognizable claims against defendant Davis for excessive use of

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force in violation of the Eighth Amendment, and against defendant Lunes for retaliation in

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violation of the First Amendment and due process violations under the Fourteenth Amendment.

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(Doc. No. 11.) Accordingly, the magistrate judge authorized service of plaintiff’s first amended

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complaint on defendants Davis and Lunes. (Id.) The magistrate judge also found plaintiff stated

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no other cognizable claims, determined that the granting of further leave to amend would be futile
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as to the claims found not to be cognizable, and recommended dismissal of all remaining claims

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and defendants. (Id.) The findings and recommendations provided plaintiff fourteen days within

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which to file any objections thereto. After being granted one extension of time in which to do so,

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plaintiff filed his objections on July 7, 2017. (Doc. No. 16.)

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, the

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court has conducted a de novo review of this case. Having carefully reviewed the entire file,

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including plaintiff’s objections, the court finds the findings and recommendations to be supported

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by the record and by proper analysis. Having reviewed plaintiff’s objections, the court finds them

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to lack merit.

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In his objections, plaintiff first argues that dismiss of his due process claim against

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defendant Davis was improper. (See id. at 3–4.) In his first amended complaint, plaintiff alleges

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that defendant Davis issued a false RVR against plaintiff for “possession and distribution of a

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controlled substance.” (See Doc. No. 10 at 21.) Plaintiff now argues that the disposition of that

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RVR resulted in him being sentenced to nine months in segregated housing, a loss of visitation

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rights, and the addition of eight points to his placement score. (Doc. No. 16 at 3–4.) In the

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pending findings and recommendations, the magistrate judge correctly pointed out that plaintiff

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had no constitutional right to be free of unfounded prison disciplinary charges but was instead

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only entitled to appropriate procedures in his RVR hearing prior to being deprived of a liberty

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interest. (See Doc. No. 11 at 8–9.) As a result, plaintiff’s due process claim against defendant

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Davis is properly subject to dismissal. On the other hand, in light of plaintiff’s allegations and as

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concluded by the magistrate judge, plaintiff’s claims against defendant Lunes based on defendant

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Lunes’s alleged statements and handling of plaintiff’s second RVR hearing, should be allowed to

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proceed. (See id. at 9.) To the extent plaintiff is now arguing that defendant Davis’s issuance of

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a false RVR also violated CDCR regulations, the court notes that neither state nor federal

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regulations dictate the outcome of the federal constitutional due process analysis or entitle an

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inmate to sue civilly for violations thereunder. See e.g., Vasquez v. Tate, No. 1:10-cv-01876-JLT,

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2012 WL 6738167, at *9 (E.D. Cal. Dec. 28, 2012); Davis v. Powell, 901 F. Supp. 2d 1196, 1211

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(S.D. Cal. 2012).
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Second, plaintiff objects to the magistrate judge’s recommendation that defendant Hall be

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dismissed from the action. (See Doc. No. 16 at 4.) However, as the magistrate judge correctly

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concluded, plaintiff merely alleges in his first amended complaint that defendant Hall said to

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plaintiff, “Lieutenant Lunes sends his regards,” while processing plaintiff’s 602 administrative

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grievance. (See Doc. No. 6.) Such a statement is insufficient to attribute liability for any

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misconduct to defendant Hall. Because plaintiff was already provided an opportunity to amend

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that claim, granting further leave to amend would be futile in this regard. Plaintiff’s allegation,

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raised for the first time in his objections, that defendant Hall first granted Plaintiff’s 602

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grievance, then proceeded to deny it, also fails to allege facts sufficient to state a claim for a

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constitutional violation. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (finding that

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because there is no right to any particular grievance process, it is impossible for due process to

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have been violated by ignoring or failing to properly process grievances).

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Accordingly,

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1. The May 16, 2017 findings and recommendations (Doc. No. 11) are adopted in full;

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2. All non-cognizable claims are dismissed with prejudice for failure to state a claim;

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3. The Clerk of Court is directed to terminate defendants Joosten, Hall, Ssaly, Diaz,
Ramos, and Cota1 on the docket in this case;

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4. This case now proceeds on plaintiff’s claims (a) against defendant Davis for excessive

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force in violation of the Eighth Amendment; and (b) against defendant M. Lunes for

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retaliation in violation of the First Amendment and for due process violations under

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the Fourteenth Amendment; and

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Defendants Diaz, Ramos, and Cota were named in plaintiff’s original complaint, but not in his
first amended complaint. Accordingly, these defendants should also be administratively
terminated from the case.
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5. This case is referred back to the assigned magistrate judge for further proceedings

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consistent with this order.
IT IS SO ORDERED.
Dated:

September 7, 2017
UNITED STATES DISTRICT JUDGE

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