Washington v. Cicone, et al.

Filing 10

ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, for Failure to State a Cognizable Claim for Relief signed by Magistrate Judge Stanley A. Boone on 06/05/2017. Amended Complaint due by 7/10/2017. (Attachments: # 1 Amended Complaint Form)(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL WASHINGTON,

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Plaintiff,

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v.

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J. CICONE, et al.,

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Defendants.

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Case No.: 1:17-cv-00515-DAD-SAB (PC)
ORDER DISMISSING COMPLAINT, WITH
LEAVE TO AMEND, FOR FAILURE TO STATE
A COGNIZABLE CLAIM FOR RELIEF
[ECF No. 1]

Plaintiff Michael Washington is appearing pro se and in forma pauperis in this civil rights

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action pursuant to 42 U.S.C. § 1983. Plaintiff consented to United States Magistrate Judge

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jurisdiction, and Defendants declined jurisdiction; therefore, this matter was referred to the

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

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Currently before the Court is Plaintiff’s complaint, which was removed from state court and
filed in this Court on April 12, 2017.

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I.

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SCREENING REQUIREMENT

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

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks
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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
A complaint must contain “a short and plain statement of the claim showing that the pleader is

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entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each named defendant personally

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participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County,

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Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010).

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Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor, but the pleading standard is now

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higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive

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screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to allow

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the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal,

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556 U.S. at 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer

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possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely

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consistent with’ a defendant’s liability” falls short of satisfying the plausibility standard. Iqbal, 556

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U.S. at 678; Moss, 572 F.3d at 969.

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II.

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COMPLAINT ALLEGATIONS

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On September 24, 2015, while Plaintiff was housed at Corcoran State Prison, he allowed

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inmate Williams to watch Plaintiff’s RCA television due to a disagreement over the dayroom

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television. Plaintiff asked inmate Williams to store the television inside his locker once the football

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game was over, and inmate Williams did so. However, Defendant correctional officer Padilla went

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into the dorm and confiscated Plaintiff’s television from Williams, as there was racial tension amongst

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African-American and Hispanic inmates over the dayroom television. Plaintiff was advised that

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inmate Perez told officer Padilla (who is Hispanic) that Plaintiff’s television was inside Williams’s

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locker. After Plaintiff’s television was confiscated, Plaintiff approached Padilla with the receipts for

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his television, and Padilla was unprofessional about the matter. Padilla told Plaintiff to write him up

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because he was not getting his television back.

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On September 26, 2013, Defendant sergeant J. Cicone, had Plaintiff placed in administrative

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segregation based on confidential information he received of a threat by Plaintiff that he was going to

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kill Padilla if he did not return his television. Plaintiff contends that because confidential information

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was used against him, he was denied his rights under the Sixth Amendment.

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On October 2, 2015, B. Phillips was assigned as Plaintiff’s investigative employee. Plaintiff

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spoke with Phillips about the incident on September 26, 2015, and Plaintiff presented a list of fourteen

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witnesses he wished for Phillips to interview. However, Phillips refused to take the list of witnesses.

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On October 8, 2015, Plaintiff received Phillips’ report and it indicated that Plaintiff did not

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request any witnesses and was not in need of assistance at his disciplinary hearing. Plaintiff requested

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a new investigator to be appointed and postponement of the disciplinary hearing. However, Plaintiff

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never received a response to his request.

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On October 18, 2015, Plaintiff signed a postponement and waiver of the disciplinary hearing;

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however, the hearing proceeded forward. Plaintiff was not allowed to have witness testimony

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considered or present documentary evidence in support of his defense. Plaintiff was found guilty of

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the rules violation report and received a loss of sixty days good-time credits as well as other privileges.

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On June 1, 2016, Plaintiff requested the findings of the rules violation report and discovered

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that Dr. K. Geis indicated that he conducted a psyche evaluation on Plaintiff. However, Plaintiff

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contends that Dr. Geis never performed a psyche evaluation on him between the months of March to

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November 2015. Plaintiff was not taking any psyche medication. After Plaintiff was found guilty of

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the offense, he was placed on a transportation bus, despite the fact that he was suffering from mental

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health problems.

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III.

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DISCUSSION

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A.

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Plaintiff names Scott Kernan, Secretary of the California Department of Corrections and

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Supervisory Liability

Rehabilitation. However, Plaintiff fails to set forth any basis for liability against Defendant Kernan.
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Plaintiff is advised that supervisory personnel may not be held liable under section 1983 for the

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actions of subordinate employees based on respondeat superior, or vicarious liability. Crowley v.

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Bannister, 734 F.3d 967, 977 (9th Cir. 2013); accord Lemire v. California Dep’t of Corr. and Rehab.,

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726 F.3d 1062, 1074-75 (9th Cir. 2013); Lacey v. Maricopa County, 693 F.3d 896, 915-16 (9th Cir.

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2012) (en banc). “A supervisor may be liable only if (1) he or she is personally involved in the

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constitutional deprivation, or (2) there is a sufficient causal connection between the supervisor’s

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wrongful conduct and the constitutional violation.” Crowley, 734 F.3d at 977 (citing Snow, 681 F.3d

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at 989) (internal quotation marks omitted); accord Lemire, 726 F.3d at 1074-75; Lacey, 693 F.3d at

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915-16. “Under the latter theory, supervisory liability exists even without overt personal participation

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in the offensive act if supervisory officials implement a policy so deficient that the policy itself is a

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repudiation of constitutional rights and is the moving force of a constitutional violation.” Crowley,

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734 F.3d at 977 (citing Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)) (internal quotation marks

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omitted).

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B.

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Plaintiff contends that Defendant officer Padilla confiscated his television despite the fact that

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Confiscation of Property

Plaintiff had a receipt for it.

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While an authorized, intentional deprivation of property is actionable under the Due Process

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Clause, see Hudson v. Palmer, 468 U.S. 517, 532, n.13 (1984) (citing Logan v. Zimmerman Brush

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Co., 455 U.S. 422, 435-36 (1982)); Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir. 1985), “[a]n

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unauthorized intentional deprivation of property by a state employee does not constitute a violation of

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the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful

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postdeprivation remedy for the loss is available,” Hudson, 468 U.S. at 533.

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Plaintiff’s allegations relating to the confiscation of his television involve an unauthorized

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taking, and do not implicate the Due Process Clause of the Fourteenth Amendment because Plaintiff

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has an adequate post-deprivation remedy under California law and therefore, he may not pursue a due

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process claim arising out of the unlawful confiscation of his personal property. Barnett v. Centoni, 31

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F.3d 813, 816-17 (9th Cir. 1994) (citing Cal. Gov’t Code §§810-895). Accordingly, Plaintiff fails to

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state a cognizable due process clause for the confiscation of his television.
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C.

Rules Violation Report-Due Process

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The requirements of due process are flexible and the procedural protections required are as the

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particular situation demands. Wilkinson, 545 U.S. at 224. Inmates are entitled to certain due process

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considerations when subject to disciplinary sanctions. Brown, 751 F.3d at 987. If the inmate is

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subjected to a significantly sufficient hardship, “then the court must determine whether the procedures

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used to deprive that liberty satisfied Due Process.” Ramirez, 334 F.3d at 860.

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

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rights due a defendant in such proceedings does not apply.” Wolff v. McDonnell, 418 U.S. 539, 556

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(1974). With respect to prison disciplinary proceedings, the minimum procedural requirements that

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

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receives written notice and the time of the hearing, so that the prisoner may prepare his defense; (3) a

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written statement by the fact finders of the evidence they rely on and reasons for taking disciplinary

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action; (4) the right of the prisoner to call witnesses in his defense, when permitting him to do so

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

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the prisoner where the prisoner is illiterate or the issues presented are legally complex. Wolff, 418

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U.S. at 563-71. In addition “[s]ome evidence” must support the decision of the hearing officer.

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Superintendent v. Hill, 472 U.S. 445, 455 (1985). The standard is not particularly stringent and the

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relevant inquiry is whether “there is any evidence in the record that could support the conclusion

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reached . . . .” Id. at 455-56 (emphasis added).

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It has long been established that state prisoners cannot challenge the fact or duration of their

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confinement in a section 1983 action and their sole remedy lies in habeas corpus relief. Wilkinson v.

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Dotson, 544 U.S. 74, 78 (2005). Often referred to as the favorable termination rule or the Heck bar,

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this exception to section 1983’s otherwise broad scope applies whenever state prisoners “seek to

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invalidate the duration of their confinement-either directly through an injunction compelling speedier

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release or indirectly through a judicial determination that necessarily implies the unlawfulness of the

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State’s custody.” Wilkinson, 544 U.S. at 81; Heck v. Humphrey, 512 U.S. 477, 482, 486-487 (1994);

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Edwards v. Balisok, 520 U.S. 641, 644 (1997). Thus, “a state prisoner’s [section] 1983 action is

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barred (absent prior invalidation)-no matter the relief sought (damages or equitable relief), no matter
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the target of the prisoner’s suit (state conduct leading to conviction or internal prison proceedings)-if

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success in that action would necessarily demonstrate the invalidity of confinement or its duration.” Id.

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at 81-82.

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However, “challenges to disciplinary proceedings are barred by Heck only if the § 1983 action

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would be seeking a judgment at odds with [the prisoner’s] conviction or with the State’s calculation of

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time to be served.” Nettles v. Grounds, 830 F.3d 922, 928-29 (9th Cir. 2016) (en banc) (citing

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Muhammad, 540 U.S. at 754-55. “If the invalidity of the disciplinary proceedings, and therefore the

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restoration of good-time credits, would not necessarily affect the length of time to be served, then the

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claim falls outside the core of habeas and may be brought in § 1983.” Nettles, 830 F.3d at 929; see

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also Pratt v. Hedrick, No. C 13-4557 SI (pr), 2015 WL 3880383, at *3 (N.D. Cal. June 23, 2015)

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(section 1983 challenge to disciplinary conviction not Heck-barred where “the removal of the rule

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violation report or the restoration of time credits” would not necessarily result in a speedier release for

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inmate with indeterminate life sentence and no parole date).

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Because Plaintiff lost good-time credits as a result of the rules violation report, his claim is

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barred by Heck, unless and until the disciplinary action has been reversed, expunged or declared

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invalid, as such credit loss impacts the duration of his confinement.

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To the extent Plaintiff contends that the rules violation report was false or that Dr. Geis

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medical report was false, such claims likewise fails to give rise to a due process violation. Plaintiff is

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advised that the issuance of a false RVR or false crime report does not, in and of itself, support a claim

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under section 1983. See, e.g., Ellis v. Foulk, No. 14-cv-0802 AC P, 2014 WL 4676530, at *2 (E.D.

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Cal. Sept. 18, 2014) (“Plaintiff’s protection from the arbitrary action of prison officials lies in ‘the

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procedural due process requirements as set forth in Wolff v. McDonnell.’”) (citing Hanrahan v. Lane,

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747 F.2d 1137, 1140 (7th Cir. 1984)); Solomon v. Meyer, No. 11-cv-02827-JST (PR), 2014 WL

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294576, at *2 (N.D. Cal. Jan. 27, 2014) (“[T]here is no constitutionally protected right to be free from

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false disciplinary charges.”) (citing Chavira v. Rankin, No. C 11-5730 CW (PR), 2012 WL 5914913,

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at *1 (N.D. Cal. Nov. 26, 2012) (“The Constitution demands due process, not error-free decision-

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making.”)); Johnson v. Felker, No. 1:12-cv-02719 GEB KJN (PC), 2013 WL 6243280, at *6 (E.D.

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Cal. Dec. 3, 2013) (“Prisoners have no constitutionally guaranteed right to be free from false
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accusations of misconduct, so the mere falsification of a [rules violation] report does not give rise to a

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claim under section 1983.”) (citing Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989) and

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Freeman v. Rideout, 808 F.2d 949, 951-53 (2d. Cir. 1986)). Furthermore, the fact that Plaintiff’s rules

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violation report was subsequently dismissed pursuant to the filing of a habeas corpus petition does not

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demonstrate a due process violation. Accordingly, Plaintiff fails to state a cognizable due process

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claim.

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D.

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Plaintiff contends his rights under the Sixth Amendment were violated because he was

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deprived of the opportunity to confront and cross-examination information provided by a confidential

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Sixth Amendment

informant.

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The Sixth Amendment to the Constitution of the United States guarantees the right of an

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accused in a criminal prosecution to be confronted with the witnesses against him or her. U.S. Const.

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Amend. VI.

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applicable to criminal trials, they are not applicable to prison disciplinary hearings.

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McDonnell, 418 U.S. 539, 568 (1974).

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Amendment violation.

Although the Sixth Amendment rights to confrontation and cross-examination are
Wolff v.

Accordingly, Plaintiff fails to state a cognizable Sixth

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E.

Violation of Title 15 of the California Code of Regulations

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To the extent Plaintiff attempts to seek liability against any Defendant for violation of a state

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regulations, such claim fails. Violations of state prison rules and regulations, without more, do not

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support any claims under section 1983. Ove v. Gwinn, 264 F.3d 817, 824 (9th Cir. 2001); Sweaney v.

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Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997). Only if the events complained of rise to the

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level of a federal statutory or constitutional violation may Plaintiff pursue them under section 1983.

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Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

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IV.

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CONCLUSION AND ORDER

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For the reasons stated, Plaintiff’s complaint fails to state a claim upon which relief may be

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granted. Plaintiff is granted leave to file an amended complaint within thirty (30) days. Noll v.

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Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff may not change the nature of this suit by
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adding new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir.

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2007) (no “buckshot” complaints).

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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what each

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named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal rights.

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Iqbal, 556 U.S. 662, 678. “The inquiry into causation must be individualized and focus on the duties

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and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a

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constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). Although accepted as

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true, the “[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level .

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. .” Twombly, 550 U.S. at 555 (citations omitted).

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Finally, an amended complaint supersedes the original complaint, Forsyth v. Humana, Inc.,

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114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and must be

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“complete in itself without reference to the prior or superseded pleading,” Local Rule 220. “All

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causes of action alleged in an original complaint which are not alleged in an amended complaint are

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waived.” King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir.

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1981)); accord Forsyth, 114 F.3d at 1474.

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Based on the foregoing, it is HEREBY ORDERED that:

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The Clerk’s Office shall send Plaintiff an amended civil rights complaint form;

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Plaintiff’s complaint, filed April 12, 2017, is dismissed for failure to state a claim;

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3.

Within thirty (30) days from the date of service of this order, Plaintiff shall file an
amended complaint; and

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4.

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If Plaintiff fails to file an amended complaint in compliance with this order, this action
will be dismissed for failure to state a claim.

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IT IS SO ORDERED.

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Dated:

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June 5, 2017
UNITED STATES MAGISTRATE JUDGE

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