(PC) Reveles v. Magana et al

Filing 11

ORDER directing Clerk of Court to randomly assign a District Judge to this action. FINDINGS and RECOMMENDATIONS recommending dismissal of action for failure to state a cognizable claim for relief #9 signed by Magistrate Judge Stanley A. Boone on 11/19/2020. Referred to Judge NONE. Objections to F&R's due within 14-Days. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GUILLERMO REVELES,

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Plaintiff,

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v.

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MAGANA, et al.,

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Defendants.

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Case No.: 1:20-cv-01345-SAB (PC)
ORDER DIRECTING CLERK OF COURT TO
RANDOMLY ASSIGN A DISTRICT JUDGE TO
THIS ACTION
FINDINGS AND RECOMMENDATION
RECOMMENDING DISMISSAL OF ACTION
FOR FAILURE TO STATE A COGNIZABLE
CLAIM FOR RELIEF
(ECF No. 9)

Plaintiff Guillermo Reveles is proceeding pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983.

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Currently before the Court is Plaintiff’s first amended complaint, filed October 30, 2020.

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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 Court

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

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or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[] monetary

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relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); see also 28

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U.S.C. § 1915A(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, do

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not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550

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

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in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

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

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construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th

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Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible, which

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requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is

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liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962,

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969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and

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“facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying the plausibility

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standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

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II.

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SUMMARY OF ALLEGATIONS
The Court accepts Plaintiff’s allegations in his complaint as true only for the purpose of the

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screening requirement under 28 U.S.C. § 1915.
On December 12, 2019, Plaintiff was supposed to appear at a committee hearing. However, on

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this same day, correctional counselor Magana went to Plaintiff’s cell door and explained that Plaintiff

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would not be going to the hearing because the committee did not want to deal with him. Plaintiff

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subsequently found out that he was supposed to be presented at the committee hearing, and he never

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refused to attend the hearing.
Plaintiff did sign the 72 hour waiver acknowledging that he did not need 72 hours to prepare

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for the hearing. Magana claimed that Plaintiff agreed with the committee action when he did not even

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appear.

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Correctional counselor Campa reviewed Plaintiff’s appeal regarding his failure to appear at the

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committee hearing. Campa claimed that since Plaintiff waived the 72 hour notice that is the refusal to
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appear. Plaintiff has been housed in administrative for about a year without any disciplinary actions in

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violation of California Code of Regulations Title 15 section 3335.

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III.

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DISCUSSION

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A.

Due Process-Administrative Segregation

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The Due Process Clause of the Fourteenth Amendment of the U.S. Constitution protects

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individuals against governmental deprivations of life, liberty or property without due process of law.

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Interests that are procedurally protected by the Due Process Clause may arise from two sources: the

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Due Process Clause itself and laws of the states. See Meachum v. Fano, 427 U.S. 215, 224-27 (1976).

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In the prison context, these interests are generally ones pertaining to liberty. Changes in conditions so

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severe as to affect the sentence imposed in an unexpected manner implicate the Due Process Clause

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itself, whether or not they are authorized by state law. See Sandin v. Conner, 515 U.S. 472, 484 (1995)

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(citing Vitek v. Jones, 445 U.S. 480, 493 (1980) (transfer to mental hospital), and Washington v.

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Harper, 494 U.S. 210, 221-22 (1990) (involuntary administration of psychotropic drugs)).

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Deprivations that are less severe or more closely related to the expected terms of confinement may

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also amount to deprivations of a protected liberty interest, provided that the liberty in question is one

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of “real substance.” See Sandin, 515 U.S. at 477-87. An interest of “real substance” will generally be

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limited to freedom from restraint that imposes an “atypical and significant hardship on the inmate in

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relation to the ordinary incidents of prison life” or “will inevitably affect the duration of [a] sentence.”

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Id. at 484, 487. The placement of an inmate in a highly restrictive housing setting may amount to a

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deprivation of a liberty interest of “real substance” within the meaning of Sandin. See Wilkinson v.

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Austin, 545 U.S. 209, 224 (2005).

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The Due Process Clause does not create a liberty interest in remaining in the general

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population or being free from administrative segregation. Hewitt v. Helms, 459 U.S. 460, 466-67

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(1983); Toussaint v. McCarthy, 801 F.2d 1080, 1091 (9th Cir. 1985), abrogated in part on other

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grounds by Sandin v. Conner, 515 U.S. 472. The Ninth Circuit has concluded that prisoners have no

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liberty interest in remaining free from administrative segregation or solitary confinement. See May v.

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Baldwin, 109 F.3d 557, 565 (9th Cir. 1997). Administrative segregation is the type of confinement
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that should be reasonably anticipated by inmates at some point in their incarceration. Toussaint, 801

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F.2d at 1091 (quoting Hewitt, 459 U.S. at 468). Indeed, prisoners may, however, be housed in

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Administrative Segregation to protect them from other inmates, to protect other inmates from the

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segregated prisoner, or pending investigation of disciplinary charges, transfer, or re-classification. See

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Hewitt, 459 U.S. at 468 (finding no liberty interest in freedom from state action taken within the

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sentence implied).

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States may, under certain circumstances, create liberty interests which are protected by the Due

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Process Clause. See Sandin v. Conner, 515 U.S. at 484. (citations omitted). These interests are

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generally limited to freedom from restraint that imposes atypical and significant hardship on the

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inmate in relation to the ordinary incidents of prison life. Sandin, 515 U.S. at 484. To determine if the

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plaintiff's removal from general population constitutes an “atypical and significant hardship,” the

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Court examines: (1) the extent of difference between segregation and general population; (2) the

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duration and intensity of the conditions confinement; and (3) whether the sanction extends the length

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of the prisoner's sentence. Cepero v. High Desert State Prison, No. 3:12-cv-00263-MMD-VPC, 2015

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WL 1308690 at *14 (D. Nev. Mar. 24, 2015); see also Sandin, 515 U.S. at 486–87. “Typically,

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administrative segregation in and of itself does not implicate a protected liberty interest.” Serrano v.

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Francis, 345 F.3d 1071, 1078 (9th Cir.2003). Furthermore, “the decision to hold an inmate in

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administrative segregation imposes few procedural burdens on prison officials.” Cepero, 2015 WL

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1308690 at *14.

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When an inmate has established a protected liberty interest in freedom from administrative

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segregation, federal due process requires only the following procedures: “[p]rison officials must hold

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an informal nonadversary hearing within a reasonable time after the prisoner is segregated. The prison

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officials must inform the prisoner of the charges against the prisoner or their reasons for considering

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segregation. Prison officials must allow the prisoner to present his views.” Toussaint v. McCarthy, 801

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F.2d at 1100. An informal, nonadversary evidentiary review is sufficient “both for the decision that an

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inmate represents a security threat and the decision to confine an inmate to administrative segregation

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pending completion of an investigation into misconduct charges against him.” Hewitt v. Helms, 459

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U.S. at 476. Before the review, the prisoner must receive some notice of the charges and be given an
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opportunity to respond, but he is not entitled to “detailed written notice of charges, representation of

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counsel or counsel-substitute, an opportunity to present witnesses, or a written decision describing the

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reasons for placing the prisoner in administrative segregation.” Toussaint, 801 F.2d at 1100-01

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(citations omitted). Due process also “does not require disclosure of the identity of any person

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providing information leading to the placement of a prisoner in administrative segregation.” Id.

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Although Plaintiff contends that he was held in administrative segregation for “about a year,”

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he has not described conditions related to his housing in administrative segregation that impose

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atypical and significant hardships on Plaintiff in relation to the ordinary incidents of prison life.

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Because Plaintiff has not established a liberty interest for which due process protections apply, he fails

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to state a due process claim based on his housing in administrative segregation. See, e.g., Toussaint v.

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McCarthy, 801 F.2d at 1092 (“a liberty interest does not arise even when administrative segregation

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imposes ‘severe hardships' such as ‘denial of access to vocational, education, recreational and

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rehabilitative programs, restriction on exercise, and confinement to [one's] cell for lengthy periods of

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time’ ”) (quoting Hewitt v. Helms, 459 U.S. at 467 n.4); Wyatt v. Hackett, No. CV05-5498 VAP (JC),

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2009 WL 5062343, at *7–*8 (C.D. Cal. Dec. 21, 2009) (no liberty interest found in connection with a

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60–day confinement in administrative segregation, because “[l]imitations on contact visitation,

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telephone calls, canteen visits and physical access to the law library are, likewise, within the range of

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limitations contemplated by plaintiff's sentence”); Jones v. McDaniel, 552 F. Supp. 2d 1141, 1146 (D.

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Nev. 2008) (citing Sandin and finding that the loss of telephone and canteen privileges falls within the

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expected scope of a criminal sentence and thus does not give rise to a liberty interest); Bryant v.

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Cortez, 536 F. Supp. 2d 1160, 1167 (C.D. Cal. 2008) (no protected liberty interest arose from

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prisoner's ad seg placement for 18 months pending adjudication of Rules Violation Report of which he

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ultimately was found not guilty even though he experienced reduced exercise and visitation and a loss

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of telephone privileges); Deadmon v. Grannis, No. 06cv1382-LAB (WMC), 2008 WL 595883, at *6–

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*7 (S.D. Cal. Feb. 29, 2008) (finding allegations that plaintiff lost general population privileges, was

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restricted to family visits behind a closed window and was disallowed phone calls, and was allowed

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only one package a year, one shower every three days, and a maximum of ten hours per week of yard

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time while in the ad seg for 15 months did not constitute “an atypical and significant hardship in light
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of the ordinary incidents of his incarceration” and, thus, no liberty interest existed). Plaintiff has not

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pled sufficient facts demonstrating that his retention in administrative segregation constitutes atypical

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and significant hardship, entitling him to procedural due process. Accordingly, Plaintiff fails to state a

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cognizable claim for relief. Because it appears Plaintiff cannot cure the pleading defects discussed

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above, the undersigned recommends dismissal without further leave to amend.

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B.

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Plaintiff contends that Defendants violated section 3335 by not allowing him to be present at

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California Code of Regulations Title 15 Section 3335

the committee hearing.
Section 3335 provides the guidelines for placing an inmate in administrative segregation,

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which includes segregation for non-disciplinary reasons. Cal. Code Regs. tit. 15, §§ 3335(a)(1)(A)-

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(D). However, the mere violation of a prison regulation, which may provide even more procedural

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protections than mandated by the Constitution, does not give rise to a cognizable claim for relief.

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See, e.g., Nible v. Fink, __ F. App’x. __, 2020 WL 6441117, at *1 (9th Cir. Nov. 3, 2020) (violations

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of Title 15 of the California Code of Regulations do not create private right of action); Nurre v.

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Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009) (section 1983 claims must be premised on violation

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of federal constitutional right); Prock v. Warden, No. 1:13-cv-01572-MJS (PC), 2013 WL 5553349, at

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*11-12 (E.D. Cal. Oct. 8, 2013) (noting that several district courts have found no implied private right

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of action under title 15 and stating that “no § 1983 claim arises for [violations of title 15] even if they

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occurred.”); Parra v. Hernandez, No. 08cv0191-H (CAB), 2009 WL 3818376, at *3 (S.D. Cal. Nov.

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13, 2009) (granting motion to dismiss prisoner's claims brought pursuant to Title 15 of the California

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Code of Regulations); Chappell v. Newbarth, No. 1:06-cv-01378-OWW-WMW (PC), 2009 WL

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1211372, at *9 (E.D. Cal. May 1, 2009) (holding that there is no private right of action under Title 15

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of the California Code of Regulations). Similarly, there is no liability under § 1983 for violating

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prison policy. Cousins v. Lockyer, 568 F.3d 1063, 1070 (9th Cir. 2009).

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C.

Further Leave to Amend Futile

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Leave to amend should be granted if it appears possible that the defects in the complaint could

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be corrected, especially if a plaintiff is pro se. Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000)

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(en banc); Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant must be given
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leave to amend his or her complaint, and some notice of its deficiencies, unless it is absolutely clear

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that the deficiencies of the complaint could not be cured by amendment.” (citing Noll v. Carlson, 809

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F.2d 1446, 1448 (9th Cir. 1987) ). However, if, after careful consideration, it is clear that a complaint

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cannot be cured by amendment, the court may dismiss without leave to amend. Cato, 70 F.3d at 1005-

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06. The undersigned finds that, as set forth above, Plaintiff's allegations fail to state a claim for relief

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and amendment would be futile. Accordingly, Plaintiff’s complaint should be dismissed without leave

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to amend.

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IV.

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ORDER AND RECOMMENDATION
Based on the foregoing, it is HEREBY ORDERED that the Clerk of Court shall randomly

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assign a Fresno District Judge to this action.
Further, it is HEREBY RECOMMENDED that the instant action be dismissed for failure to

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state a cognizable for relief.
This Findings and Recommendation 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 fourteen (14) days

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after being served with this Findings and Recommendation, Plaintiff may file written objections with

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

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Recommendation.” 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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November 19, 2020
UNITED STATES MAGISTRATE JUDGE

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