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)

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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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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

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Case No.: 1:17-cv-00515-DAD-SAB (PC)

action pursuant to 42 U.S.C. § 1983.

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Currently before the Court is Plaintiff’s first amended complaint, filed August 2, 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).

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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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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

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television was confiscated. Plaintiff approached Padilla and informed him that Plaintiff had a receipt

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for the television. Padilla displayed an indifferent attitude and refused to return Plaintiff’s television.

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The appliance was discarded as contraband and no confiscation paperwork was provided.

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Plaintiff was not provided an opportunity to challenge the confiscation of his personal property

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because on September 26, 2015, sergeant J. Cicone called Plaintiff to the program office and asked if

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he made a threatening statement that he was going to stab officer Padilla. Plaintiff denied making any

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threatening statement. However, Cicone informed Plaintiff that a confidential informant advised

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prison officials of Plaintiff’s threatening statement.

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On September 29, 2015, Dr. K. Geis statement was a rubber stamp for custody to move

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forward with the disciplinary action against Plaintiff. Dr. Geis ignored all relevant psychiatric

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evaluation and mental problems that Plaintiff was experiencing. Dr. Geis did nothing to assist

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Plaintiff in the disciplinary action.

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On October 2, 2015, officer B. Phillips, the investigative employee, did not contact any

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witnesses on behalf of Plaintiff even though he interviewed witnesses and no information was

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provided regarding their statements. Plaintiff was not provided assistance in preparing for the hearing,

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no written statement of an evaluation of the confidential source’s reliability was provided, and no

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statement of the reason for the finding of guilt was provided. The decision-maker was unfair and

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partial at the hearing. On October 17, 2015, Plaintiff was found guilty by lieutenant G.W. Ward.

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III.

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DISCUSSION

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A.

Due Process-Rules Violation Report

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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 v. Austin, 545 U.S. 209, 224 (2005). Inmates are entitled to

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certain due process considerations when subject to disciplinary sanctions. Brown v. Oregon Dept. of

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Corrections, 751 F.3d 983, 987 (9th Cir. 2014). If the inmate is subjected to a significantly sufficient

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hardship, “then the court must determine whether the procedures used to deprive that liberty satisfied

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Due Process.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003).

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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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Although the first amended complaint omits the fact that Plaintiff lost good-time credits as a

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result of the rules violation report, the original complaint, of which the Court takes judicial notice,

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clearly states that Plaintiff lost good-time credits. (Compl. at 16B, 17C, ECF No. 1.) Thus, Plaintiff’s

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due process claim is barred by Heck, unless and until the disciplinary action has been reversed,

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expunged or declared 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’s

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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)). Accordingly, Plaintiff fails to state a

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cognizable due process claim.

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B.

Deprivation of Property

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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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post-deprivation 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 claim for the confiscation of his television.

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IV.

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RECOMMENDATIONS

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Plaintiff was previously notified of the applicable legal standards and the deficiencies in his

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pleading, and despite guidance from the Court, Plaintiff’s first amended complaint is largely identical
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to the original complaint.

Based upon the allegations in Plaintiff’s original and first amended

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complaint, the Court is persuaded that Plaintiff is unable to allege any additional facts that would

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support a claim for a due process violation or access to the court, and further amendment would be

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futile. See Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013) (“A district court may not deny

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leave to amend when amendment would be futile.”) Based on the nature of the deficiencies at issue,

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the Court finds that further leave to amend is not warranted. Lopez v. Smith, 203 F.3d 1122, 1130

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(9th. Cir. 2000); Noll v. Carlson, 809 F.2d 1446-1449 (9th Cir. 1987).

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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The instant action be dismissed, without further leave to amend, for failure to state a

cognizable claim for relief; and

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2.

The Clerk of Court be directed to terminate this action.

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These Findings and Recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days after

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being served with these Findings and Recommendations, Plaintiff may file written objections with the

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Court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Plaintiff is advised that failure to file objections within the specified time may

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result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014)

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(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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Dated:

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August 9, 2017
UNITED STATES MAGISTRATE JUDGE

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