Hogue v. State of California et al

Filing 12

FINDINGS and RECOMMENDATIONS that this case be dismissed, with prejudice, for failure to state a claim, failure to prosecute and failure to comply with a court order re 1 , 9 signed by Magistrate Judge Erica P. Grosjean on 4/3/2018. Referred to Judge Dale A. Drozd; Objections to F&R's due 21-Days. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT ALLEN HOGUE,

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Plaintiff,
v.

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STATE OF CALIFORNIA, et al.,
Defendants.

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Case No. 1:17-cv-00942-DAD-EPG (PC)
FINDINGS AND RECOMMENDATIONS
THAT THIS CASE BE DISMISSED, WITH
PREJUDICE, FOR FAILURE TO STATE A
CLAIM, FAILURE TO PROSECUTE, AND
FAILURE TO COMPLY WITH A COURT
ORDER
(ECF Nos. 1, 9)
OBJECTIONS, IF ANY, DUE WITHIN
TWENTY-ONE (21) DAYS

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I.

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Robert Allen Hogue (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On July 14, 2017, Plaintiff

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commenced this action by the filing of a Complaint alleging that he was removed from a trade

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program and transferred to another institution of confinement for the purpose of involuntary

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placement in a punitive mental health treatment program in violation of the First and

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Fourteenth Amendments. Id.

BACKGROUND

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On December 4, 2017, the Court screened the Complaint and found that it fails to state a

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claim upon which relief could be granted. (ECF No. 9). Specifically, the Court found that

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Plaintiff fails to allege that the minimum requirements of due process were not satisfied prior to

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his enrollment in the mandatory treatment program, fails to allege that any defendant impeded

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his ability to litigate his grievances, and seeks monetary relief against a defendant who is
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immune from such relief. Id. The Court gave Plaintiff thirty days from the date of service of the

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screening order to file an amended complaint or to notify the Court that he wishes to stand on

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the Complaint, subject to findings and recommendations to the district judge consistent with the

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screening order. Id. The Court also warned Plaintiff that failure to file an amended complaint

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or to notify the Court that he wishes to stand on the Complaint could result in the dismissal of

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this case. Id. at 9. The thirty-day period has expired, and Plaintiff has not filed an amended

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complaint or notified the Court that he wishes to stand on the Complaint.

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For the reasons described below, the Court recommends that this action be dismissed,

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with prejudice, for Plaintiff’s failure to state a claim, failure to comply with a court order, and

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failure to prosecute. Plaintiff may file objections to these findings and recommendations within

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twenty-one days from the date of service of this order.

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II.

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).

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

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legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or

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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion thereof, that may have been

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paid, the court shall dismiss the case at any time if the court determines that the action or

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appeal fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient

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factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id.

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(quoting Twombly, 550 U.S. at 570). While factual allegations are accepted as true, legal

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conclusions are not. Id.
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In determining whether a complaint states an actionable claim, the Court must accept

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the allegations in the complaint as true, Hosp. Bldg. Co. v. Trs. of Rex Hosp., 425 U.S. 738, 740

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(1976), construe pro se pleadings liberally in the light most favorable to the plaintiff, Resnick v.

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Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the plaintiff’s favor,

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Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). Pleadings of pro se plaintiffs “must be held to

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less stringent standards than formal pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d

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338, 342 (9th Cir. 2010) (holding that pro se complaints should continue to be liberally

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construed after Iqbal).

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III.

SUMMARY OF PLAINTIFF’S COMPLAINT

Plaintiff names the following defendants in this action: State of California; Kelly

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Harrington, Director of California Department of Corrections and Rehabilitation (“CDCR”)

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Division of Adult Institutions; Millicent Tidwell, Director of CDCR Division of Rehabilitative

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Program (“DRP”); B. DaVeiga, Manager of California Substance Abuse Treatment Facility and

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State Prison (“SATF”) DRP Rehabilitative Programs; B. Mason, LCSW, Manager of SATF

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Cognitive Behavioral Intervention for Sex Offenders Pilot Program (“CBI-SO”); K. Longden,

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CSW, SATF CBI-SO; K. Clayton, CSW, SATF CBI-SO; and T. Eng, CSW, SATF CBI-SO.

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(ECF No. 1).

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Plaintiff alleges that on March 7, 2016, Kelly Harrington and Millicent Tidwell issued a

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memorandum to all department heads, wardens, and classification staff representatives within

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CDCR. Id. at 5. The memorandum cites the activation of the Cognitive Behavioral Intervention

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for Sex Offenders Pilot Program. Id. The program effectively creates a new mental health

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facility within the CDCR referred to as SATF Level II. Id. Inmates who are deemed eligible

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for CBI-SO based on the requirement to register pursuant to California Penal Code § 290 are

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removed from whatever job, trade, or education program that the inmate is participating in at

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the time of being targeted for the program. Id.at 5-6. The inmate is transferred and involuntarily

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committed to mental health treatment without any diagnosis, prior history of a mental disorder,

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or court order authorizing any such involuntary treatment. Id.at 6.

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Plaintiff further alleges that the implementation of CBI-SO in its current form is by its

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definition, structure, and procedures an involuntary mental health treatment. Id. The program is

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also punitive in nature because it is a mandatory placement under threat of disciplinary action

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that may impact an inmate’s release dated in a negative manner. Id. Plaintiff contends that CBI-

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SO violates his right to due process and access to the courts. Id.at 5, 7. Plaintiff seeks an

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injunction requiring CDCR to cease operations of CBI-SO, and barring his mental health

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treatment until the legality of the involuntary nature of CBI-SO is established. Id.at 7.

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IV.

DISCUSSION
A. Eleventh Amendment Immunity

Plaintiff names the State of California as a defendant. However, the Eleventh

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Amendment bars federal lawsuits brought against states. Brown v. Oregon Dep’t of Corr., 751

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F.3d 983, 988-89 (9th Cir. 2014); Wolfson v. Brammer, 616 F.3d 1045, 1065-66 (9th Cir. 2010)

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(citation and quotation marks omitted). While “[t]he Eleventh Amendment does not bar suits

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against a state official for prospective relief,” Wolfson, 616 F.3d at 1065-66, suits against the

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state or its agencies are barred absolutely, regardless of the form of relief sought, e.g.,

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Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Buckwalter v. Nevada

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Bd. of Medical Examiners, 678 F.3d 737, 740 n.1 (9th Cir. 2012). Thus, Plaintiff may not

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maintain a claim against the State of California.

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B. Section 1983 Liability
To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted

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under color of state law, and (2) the defendant deprived him of rights secured by the

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Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.

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2006); see also Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing

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“under color of state law”). A person deprives another of a constitutional right, “within the

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meaning of § 1983, ‘if he does an affirmative act, participates in another’s affirmative act, or

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omits to perform an act which he is legally required to do that causes the deprivation of which

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complaint is made.’” Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th

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Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)).
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Plaintiff fails to allege any act or omission by B. DaVeiga, B. Mason, K. Longden, K.

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Clayton, and T. Eng that deprived him of any rights. Thus, Plaintiff fails to state a claim against

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these Defendants. Plaintiff has, however, alleged acts by Kelly Harrington and Millicent

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Tidwell sufficient to pass the § 1983 threshold requirement, and claims against those

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defendants are addressed below.

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C. Plaintiff’s First Amendment Claim
Prisoners have a right under the First and Fourteenth Amendments to litigate claims

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challenging their sentences or the conditions of their confinement without direct interference

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from prison officials. Lewis v. Casey, 518 U.S. 343, 350 (1996); Silva v. Di Vittorio, 658 F.3d

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1090, 1103 (9th Cir. 2011); Bounds v. Smith, 430 U.S. 817, 824–25 (1977). However, the right

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of access is merely the right to bring to court a grievance the inmate wishes to present, and is

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limited to direct criminal appeals, habeas petitions, and civil rights actions. Lewis, 518 U.S. at

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354. To claim a violation of this right, a plaintiff must show that he has suffered an actual

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injury as a result of the alleged interference. Christopher v. Harbury, 536 U.S. 403, 415 (2002);

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Lewis, 518 U.S. at 351.

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Plaintiff claims that his mandatory placement in CBI-SO is punitive in nature and, thus,

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violates his right to access to the courts. However, Plaintiff does not allege that any defendant

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impeded his ability to litigate his grievances or that he suffered an actual injury as a result of

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any interference. Therefore, Plaintiff fails to state a claim for denial of access to the courts.

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D. Plaintiff’s Due Process Claims

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i. Legal Standard

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The Due Process Clause of the Fourteenth Amendment protects prisoners from being

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deprived of life, liberty, or property without due process of law. Wolff v. McDonnell, 418 U.S.

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539, 556 (1974). However, “[a] due process claim is cognizable only if there is a recognized

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liberty or property interest at stake.” Coakley v. Murphy, 884 F.2d 1218, 1220 (9th Cir.1989). A

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liberty interest may arise from the Constitution itself, or from an expectation or interest created

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by state law or prison regulations. See Wilkinson v. Austin, 545 U.S. 209, 221 (2005); Sandin v.

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Conner, 515 U.S. 472, 484 (1995).
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“[T]he Constitution itself does not give rise to a liberty interest in avoiding transfer to

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more adverse conditions of confinement.” Wilkinson, 545 U.S. at 221. Further, prisoners have

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no liberty interest in participation in vocational or trade programs. See Rizzo v. Dawson, 778

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F.2d 527, 531 (9th Cir.1985) (finding that due process procedural protections were not

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triggered where prisoner was reassigned out of a vocational course and transferred to a different

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prison).

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With respect to liberty interests arising from state law, the existence of a liberty interest

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created by prison regulations is determined by focusing on the nature of the deprivation.

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Sandin, 515 U.S. at 481-84. Liberty interests created by prison regulations are limited to

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freedom from restraint which “imposes atypical and significant hardship on the inmate in

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relation to the ordinary incidents of prison life.” Id. at 484.

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The United States Court of Appeals for the Ninth Circuit has found that the

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classification of an inmate as a sex offender is an “atypical and significant hardship on the

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inmate in relation to the ordinary incidents of prison life.” Neal v. Shimoda, 131 F.3d 818, 829

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(9th Cir. 1997) (quoting Sandin, 515 U.S. at 482). In Neal, the Hawaii legislature created a Sex

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Offender Treatment Program (“SOTP”), which required prisoners identified as “sex offenders”

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to participate in a twenty-five session psychoeducational treatment program in order to become

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eligible for parole. Id. at 822. The statute defined “sex offenders” as someone “having been

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convicted, at any time, of any sex offense or [who] engaged in sexual misconduct during the

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course of an offense.” Id. Two prisoners challenged the statute, arguing that it violated their due

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process rights.

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The Ninth Circuit found that the statute implicated a liberty interest, stating, “[t]he

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classification of an inmate as a sex offender is precisely the type of ‘atypical and significant

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hardship on the inmate in relation to the ordinary incidents of prison life’ that the Supreme

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Court held created a protected liberty interest.” Id. at 829 (quoting Sandin, 515 U.S. at 482).

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The Court reasoned that “the stigmatizing consequences of the attachment of the ‘sex offender’

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label coupled with the subjection of the targeted inmate to a mandatory treatment program

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whose successful completion is a precondition for parole eligibility create the kind of
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deprivations of liberty that require procedural protections.” Id. at 830.

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The Court determined that the prisoners were constitutionally entitled to all of the

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process due under the standards set forth in Wolff v. McDonnell, 418 U.S. 539(1974). Id.

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However, the Court found that one of the prisoners had already received all the process to

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which he was entitled. Id.at 831. The Court reasoned that because the prisoner had been

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convicted of a sexual offense in a prior adversarial setting, prison officials need only notify the

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inmate that he has been classified as a sex offender to satisfy the minimum protections required

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by due process. Id. at 831.

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ii. Analysis
First, Plaintiff maintains that he was “summarily removed from a productive trade

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program and transferred.” Plaintiff, however, has no constitutional right to participate in any

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job, trade, or educational program. Plaintiff also has no constitutional right to be housed at a

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particular prison facility, even one with more favorable conditions of confinement. Thus,

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Plaintiff has failed to allege a due process violation in his transfer and removal from a trade

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program.

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Second, Plaintiff alleges that he has been placed in an involuntary treatment program

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for prisoners “who are deemed answerable to eligibility criteria who’s single relevant factor is

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that of [California Penal Code § 290] registration requirement.” (ECF No. 1 at 5.) Plaintiff

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further alleges that he is forced to participate in the program under threat of disciplinary actions

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that could negatively impact his release date. Plaintiff’s allegations are similar to those

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evaluated by the Ninth Circuit in Neal v. Shimoda, which held that being part of the sex

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offender registry was a sufficient basis to compel an inmate to enter mental health treatment

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designed for sex offenders. Thus, as alleged, he has received the minimum protections required

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by due process in these circumstances.

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Plaintiff has failed to allege that the minimum requirements of due process were not

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satisfied prior to his enrollment in the mandatory treatment program. Accordingly, based solely

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on what is alleged, the Court cannot conclude that any of the Defendants violated Plaintiff’s

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due process rights.
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E. Failure to Prosecute and to Comply with a Court Order

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“In determining whether to dismiss [an action] for failure to prosecute or failure to

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comply with a court order, the Court must weigh the following factors: (1) the public=s interest

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in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of

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prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the

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public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d

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639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)).

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“‘The public=s interest in expeditious resolution of litigation always favors dismissal.’”

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Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Thus, this

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factor weighs in favor of dismissal.

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Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in

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and of itself to warrant dismissal.” Id. at 642 (citing Yourish, 191 F.3d at 991). However,

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“delay inherently increases the risk that witnesses’ memories will fade and evidence will

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become stale,” id. at 643, and it is Plaintiff’s failure to file an amended complaint or to notify

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the Court that he wishes to stand on the Complaint that is causing delay. The Court found that

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the Complaint fails to state a claim approximately four months ago. The case is now stalled

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until Plaintiff files an amended complaint or notifies the Court that he wishes to stand on the

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Complaint. Therefore, the third factor weighs in favor of dismissal.

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As for the availability of lesser sanctions, at this stage in the proceedings there is little

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available to the Court that would constitute a satisfactory lesser sanction while protecting the

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Court from further unnecessary expenditure of its scarce resources. Monetary sanctions are of

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little use, considering Plaintiff’s incarceration and in forma pauperis status, and given the stage

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of these proceedings, the preclusion of evidence or witnesses is not available.

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Finally, because public policy favors disposition on the merits, this factor weighs

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against dismissal. Id. Thus, after weighing the factors, the Court finds that dismissal with

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prejudice is appropriate.

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V.

CONCLUSION AND RECOMMENDATIONS

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The Court screened the Complaint, and recommends finding that it fails to state a claim
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under the relevant legal standards.

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screening order, which directed him to file an amended complaint or notify the Court that he

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wishes to stand on the Complaint. Plaintiff has failed to timely file an amended complaint, and

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has not otherwise prosecuted this action.

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Furthermore, Plaintiff has failed to comply with the

Accordingly, the Court HEREBY RECOMMENDS that:

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1. Pursuant to 28 U.S.C. § 1915A and 28 U.S.C. §1915(e)(2)(B)(ii), this action be

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DISMISSED, with prejudice, based on Plaintiff=s failure to state a claim upon

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which relief may be granted under § 1983,1 as well as Plaintiff’s failure to

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comply with a Court order and failure to prosecute; and

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2. The Clerk of Court be directed to close this case.

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These findings and recommendations are submitted to the district judge assigned to the

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case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within twenty-one days after

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being served with these findings and recommendations, Plaintiff may file written objections

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with the court. Such a document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the

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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d

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834, 839 (9th Cir. 2014) (quoting Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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Dated:

April 3, 2018

/s/
UNITED STATES MAGISTRATE JUDGE

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In this Court’s opinion, this dismissal would be subject to the “three-strikes” provision set forth in 28 U.S.C. §
1915(g). Coleman v. Tollefson, 135 S. Ct. 1759, 1763 (2015).

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