Washington v. Cicone, et al.

Filing 16

FINDINGS and RECOMMENDATIONS Recommending Dismissal of Action for Failure to State a Cognizable Claim for Relief, signed by Magistrate Judge Stanley A. Boone on 8/9/17. Objections to F&R Due Within Thirty Days. (Marrujo, C)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ) ) ) ) ) ) ) ) ) ) MICHAEL WASHINGTON, 12 Plaintiff, 13 v. 14 J. CICONE, et al., 15 Defendants. 16 FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF [ECF No. 15] Plaintiff Michael Washington is appearing pro se and in forma pauperis in this civil rights 17 18 Case No.: 1:17-cv-00515-DAD-SAB (PC) action pursuant to 42 U.S.C. § 1983. 19 Currently before the Court is Plaintiff’s first amended complaint, filed August 2, 2017. 20 I. 21 SCREENING REQUIREMENT 22 The Court is required to screen complaints brought by prisoners seeking relief against a 23 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 24 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 25 “frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks 26 monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). 27 /// 28 /// 1 1 A complaint must contain “a short and plain statement of the claim showing that the pleader is 2 entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 3 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 4 do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 5 550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each named defendant personally 6 participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County, 7 Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010). 8 Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings 9 liberally construed and to have any doubt resolved in their favor, but the pleading standard is now 10 higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive 11 screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to allow 12 the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal, 13 556 U.S. at 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer 14 possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely 15 consistent with’ a defendant’s liability” falls short of satisfying the plausibility standard. Iqbal, 556 16 U.S. at 678; Moss, 572 F.3d at 969. 17 II. 18 COMPLAINT ALLEGATIONS 19 20 21 Plaintiff is a participant in the enhanced outpatient program (“EOP”) at California Substance Abuse and Treatment Facility at Corcoran State Prison (“SATF”). On September 4, 2015, a cell search was conducted by Defendant officer Padilla and Plaintiff’s 22 television was confiscated. Plaintiff approached Padilla and informed him that Plaintiff had a receipt 23 for the television. Padilla displayed an indifferent attitude and refused to return Plaintiff’s television. 24 The appliance was discarded as contraband and no confiscation paperwork was provided. 25 Plaintiff was not provided an opportunity to challenge the confiscation of his personal property 26 because on September 26, 2015, sergeant J. Cicone called Plaintiff to the program office and asked if 27 he made a threatening statement that he was going to stab officer Padilla. Plaintiff denied making any 28 2 1 threatening statement. However, Cicone informed Plaintiff that a confidential informant advised 2 prison officials of Plaintiff’s threatening statement. 3 On September 29, 2015, Dr. K. Geis statement was a rubber stamp for custody to move 4 forward with the disciplinary action against Plaintiff. Dr. Geis ignored all relevant psychiatric 5 evaluation and mental problems that Plaintiff was experiencing. Dr. Geis did nothing to assist 6 Plaintiff in the disciplinary action. 7 On October 2, 2015, officer B. Phillips, the investigative employee, did not contact any 8 witnesses on behalf of Plaintiff even though he interviewed witnesses and no information was 9 provided regarding their statements. Plaintiff was not provided assistance in preparing for the hearing, 10 no written statement of an evaluation of the confidential source’s reliability was provided, and no 11 statement of the reason for the finding of guilt was provided. The decision-maker was unfair and 12 partial at the hearing. On October 17, 2015, Plaintiff was found guilty by lieutenant G.W. Ward. 13 III. 14 DISCUSSION 15 A. Due Process-Rules Violation Report 16 The requirements of due process are flexible and the procedural protections required are as the 17 particular situation demands. Wilkinson v. Austin, 545 U.S. 209, 224 (2005). Inmates are entitled to 18 certain due process considerations when subject to disciplinary sanctions. Brown v. Oregon Dept. of 19 Corrections, 751 F.3d 983, 987 (9th Cir. 2014). If the inmate is subjected to a significantly sufficient 20 hardship, “then the court must determine whether the procedures used to deprive that liberty satisfied 21 Due Process.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003). 22 “Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of 23 rights due a defendant in such proceedings does not apply.” Wolff v. McDonnell, 418 U.S. 539, 556 24 (1974). With respect to prison disciplinary proceedings, the minimum procedural requirements that 25 must be met are: (1) written notice of the charges; (2) at least 24 hours between the time the prisoner 26 receives written notice and the time of the hearing, so that the prisoner may prepare his defense; (3) a 27 written statement by the fact finders of the evidence they rely on and reasons for taking disciplinary 28 action; (4) the right of the prisoner to call witnesses in his defense, when permitting him to do so 3 1 would not be unduly hazardous to institutional safety or correctional goals; and (5) legal assistance to 2 the prisoner where the prisoner is illiterate or the issues presented are legally complex. Wolff, 418 3 U.S. at 563-71. In addition “[s]ome evidence” must support the decision of the hearing officer. 4 Superintendent v. Hill, 472 U.S. 445, 455 (1985). The standard is not particularly stringent and the 5 relevant inquiry is whether “there is any evidence in the record that could support the conclusion 6 reached . . . .” Id. at 455-56 (emphasis added). 7 It has long been established that state prisoners cannot challenge the fact or duration of their 8 confinement in a section 1983 action and their sole remedy lies in habeas corpus relief. Wilkinson v. 9 Dotson, 544 U.S. 74, 78 (2005). Often referred to as the favorable termination rule or the Heck bar, 10 this exception to section 1983’s otherwise broad scope applies whenever state prisoners “seek to 11 invalidate the duration of their confinement-either directly through an injunction compelling speedier 12 release or indirectly through a judicial determination that necessarily implies the unlawfulness of the 13 State’s custody.” Wilkinson, 544 U.S. at 81; Heck v. Humphrey, 512 U.S. 477, 482, 486-487 (1994); 14 Edwards v. Balisok, 520 U.S. 641, 644 (1997). Thus, “a state prisoner’s [section] 1983 action is 15 barred (absent prior invalidation)-no matter the relief sought (damages or equitable relief), no matter 16 the target of the prisoner’s suit (state conduct leading to conviction or internal prison proceedings)-if 17 success in that action would necessarily demonstrate the invalidity of confinement or its duration.” Id. 18 at 81-82. 19 Although the first amended complaint omits the fact that Plaintiff lost good-time credits as a 20 result of the rules violation report, the original complaint, of which the Court takes judicial notice, 21 clearly states that Plaintiff lost good-time credits. (Compl. at 16B, 17C, ECF No. 1.) Thus, Plaintiff’s 22 due process claim is barred by Heck, unless and until the disciplinary action has been reversed, 23 expunged or declared invalid, as such credit loss impacts the duration of his confinement. 24 To the extent Plaintiff contends that the rules violation report was false or that Dr. Geis’s 25 medical report was false, such claims likewise fails to give rise to a due process violation. Plaintiff is 26 advised that the issuance of a false RVR or false crime report does not, in and of itself, support a claim 27 under section 1983. See, e.g., Ellis v. Foulk, No. 14-cv-0802 AC P, 2014 WL 4676530, at *2 (E.D. 28 Cal. Sept. 18, 2014) (“Plaintiff’s protection from the arbitrary action of prison officials lies in ‘the 4 1 procedural due process requirements as set forth in Wolff v. McDonnell.’”) (citing Hanrahan v. Lane, 2 747 F.2d 1137, 1140 (7th Cir. 1984)); Solomon v. Meyer, No. 11-cv-02827-JST (PR), 2014 WL 3 294576, at *2 (N.D. Cal. Jan. 27, 2014) (“[T]here is no constitutionally protected right to be free from 4 false disciplinary charges.”) (citing Chavira v. Rankin, No. C 11-5730 CW (PR), 2012 WL 5914913, 5 at *1 (N.D. Cal. Nov. 26, 2012) (“The Constitution demands due process, not error-free decision- 6 making.”)); Johnson v. Felker, No. 1:12-cv-02719 GEB KJN (PC), 2013 WL 6243280, at *6 (E.D. 7 Cal. Dec. 3, 2013) (“Prisoners have no constitutionally guaranteed right to be free from false 8 accusations of misconduct, so the mere falsification of a [rules violation] report does not give rise to a 9 claim under section 1983.”) (citing Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989) and 10 Freeman v. Rideout, 808 F.2d 949, 951-53 (2d. Cir. 1986)). Accordingly, Plaintiff fails to state a 11 cognizable due process claim. 12 B. Deprivation of Property 13 While an authorized, intentional deprivation of property is actionable under the Due Process 14 Clause, see Hudson v. Palmer, 468 U.S. 517, 532, n.13 (1984) (citing Logan v. Zimmerman Brush 15 Co., 455 U.S. 422, 435-36 (1982)); Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir. 1985), “[a]n 16 unauthorized intentional deprivation of property by a state employee does not constitute a violation of 17 the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful 18 post-deprivation remedy for the loss is available,” Hudson, 468 U.S. at 533. 19 Plaintiff’s allegations relating to the confiscation of his television involve an unauthorized 20 taking, and do not implicate the Due Process Clause of the Fourteenth Amendment because Plaintiff 21 has an adequate post-deprivation remedy under California law and therefore, he may not pursue a due 22 process claim arising out of the unlawful confiscation of his personal property. Barnett v. Centoni, 31 23 F.3d 813, 816-17 (9th Cir. 1994) (citing Cal. Gov’t Code §§ 810-895). Accordingly, Plaintiff fails to 24 state a cognizable due process claim for the confiscation of his television. 25 IV. 26 RECOMMENDATIONS 27 Plaintiff was previously notified of the applicable legal standards and the deficiencies in his 28 pleading, and despite guidance from the Court, Plaintiff’s first amended complaint is largely identical 5 1 to the original complaint. Based upon the allegations in Plaintiff’s original and first amended 2 complaint, the Court is persuaded that Plaintiff is unable to allege any additional facts that would 3 support a claim for a due process violation or access to the court, and further amendment would be 4 futile. See Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013) (“A district court may not deny 5 leave to amend when amendment would be futile.”) Based on the nature of the deficiencies at issue, 6 the Court finds that further leave to amend is not warranted. Lopez v. Smith, 203 F.3d 1122, 1130 7 (9th. Cir. 2000); Noll v. Carlson, 809 F.2d 1446-1449 (9th Cir. 1987). 8 Based on the foregoing, it is HEREBY RECOMMENDED that: 9 1. 10 The instant action be dismissed, without further leave to amend, for failure to state a cognizable claim for relief; and 11 2. The Clerk of Court be directed to terminate this action. 12 These Findings and Recommendations will be submitted to the United States District Judge 13 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days after 14 being served with these Findings and Recommendations, Plaintiff may file written objections with the 15 Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 16 Recommendations.” Plaintiff is advised that failure to file objections within the specified time may 17 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 18 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 19 20 IT IS SO ORDERED. 21 Dated: 22 August 9, 2017 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 6

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?