Martinez v. Hoover, et al

Filing 53

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 09/02/11 RECOMMENDING that the 32 Motion to Dismiss be granted in part and denied in part as detailed in the order; that dft's 48 Motion to Strike be granted and that plf's 49 Motion for Leave to File a Surreply and 46 Request for Additional Time should be denied; Objections to these F&Rs due w/i 14 days; referred to Judge Kimberly J. Mueller. (Benson, A.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ARCHIE A. MARTINEZ,

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No. CIV S-09-0680-KJM-CMK-P

Plaintiff,
vs.

FINDINGS AND RECOMMENDATIONS

G. HOOVER, et al.,
Defendants.
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Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant

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to 42 U.S.C. § 1983. Pending before the court is defendants’ motion to dismiss (Doc. 32).

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Plaintiff filed an opposition to the motion (Doc. 44) and defendants filed a reply (Doc. 45). In

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addition, plaintiff requested permission and additional time to file a surreply (Docs. 46, 49), and

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defendants filed a motion to strike plaintiff’s surreply (Doc. 48)

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I. BACKGROUND
This action proceeds on plaintiff’s amended complaint (Doc. 19). His complaint

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includes claims regarding denial of medical treatment, excessive force, and retaliation. Upon

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screening, the court found plaintiff stated a claim against seven defendants for the violation of his

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Eighth Amendment rights for the use of excessive force and denial of medical treatment, and for
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retaliation. The excessive force allegations stem from an in-cell incident with defendant Hoover.

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The retaliation claims are based on allegations of false disciplinary charges and confinement in

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administrative segregation. Finally, the denial of medical treatment claims relate to the

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defendants’ alleged denial of treatment following the incident with defendant Hoover.

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Defendants are not challenging the excessive force or denial of medical treatment claims. The

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only claims at issue in the motion to dismiss are the claims of retaliation, which the defendants

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have characterized differently.

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II. DISCUSSION
In considering a motion to dismiss, the court must accept all allegations of

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material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The

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court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer

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v. Rhodes, 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S.

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738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All

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ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen,

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395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual

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factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50

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(2009). In addition, pro se pleadings are held to a less stringent standard than those drafted by

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lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972).

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Rule 8(a)(2) requires only “a short and plain statement of the claim showing that

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the pleader is entitled to relief” in order to “give the defendant fair notice of what the . . . claim is

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and the grounds upon which it rests.” Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007)

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(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for

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failure to state a claim under Rule 12(b)(6), a complaint must contain more than “a formulaic

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recitation of the elements of a cause of action;” it must contain factual allegations sufficient “to

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raise a right to relief above the speculative level.” Id. at 555-56. The complaint must contain

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“enough facts to state a claim to relief that is plausible on its face.” Id. at 570. “A claim has
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facial plausibility when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at

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1949. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more

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than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S.

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at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability,

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it ‘stops short of the line between possibility and plausibility for entitlement to relief.” Id.

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(quoting Twombly, 550 U.S. at 557).

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In deciding a Rule 12(b)(6) motion, the court generally may not consider materials
outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998);

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Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1)

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documents whose contents are alleged in or attached to the complaint and whose authenticity no

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party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question,

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and upon which the complaint necessarily relies, but which are not attached to the complaint, see

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Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials

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of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir.

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1994).

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A.

COMPLAINT

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Plaintiff’s complaint is not precise as to what his claims of constitutional

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violations are. As stated above, the court read plaintiff’s complaint as raising claims for

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excessive force, retaliation, and denial of medical treatment. His claims arise from an incident

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wherein defendant Hoover entered plaintiff’s cell while he and fellow prisoners were in the

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process of hanging a cardboard shelf in plaintiff’s cell. Plaintiff alleges defendant Hoover then

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assaulted him, stating “This is for Gomez!” referring to plaintiff’s legal action against another

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correctional officer. Plaintiff then alleges, reading the complaint broadly and in the best light of

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plaintiff, that he was wrongfully charged with a prison disciplinary for possessing a weapon, the

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cutter used for the cardboard shelf, wrongfully placed in administrative segregation, and retained
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there, again all in retaliation for his complaint against Gomez.

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Defendants read plaintiff’s complaint slightly different, and more narrowly.

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Defendants argue the complaint, apparently in addition to those claims stated above, also raises a

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bribery charge, a due process allegation relating his placement in administrative segregation, and

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a false imprisonment claim. They do not read these allegations as part of the retaliation claim.

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As such, they argue, plaintiff fails to state a claim and these claims, as well as two defendants,

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should be dismissed.

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In response, plaintiff argues his complaint does state a claim for each claim raised

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by defendant’s motion. He argues he was placed into administrative segregation to cover up his

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assault, without having been interviewed, while other prisoners were sent back to their cell. He

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claims being placed in administrative segregation violated his liberty interest as an atypical and

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significant hardship. He also argues he does state a claim against defendant Blim for retaliation

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due to Blim’s actions similarly being motivated by his legal action against Gomez. Plaintiff

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further argues he does state a claim for bribery against defendant Olivas in that Olivas extended

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plaintiff’s placement in administrative segregation when he did not accept the terms Olivas

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offered.

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As stated above, the court read the complaint to include the claims of excessive

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force, retaliation and denial of medical treatment. The only claim at issue in the current motion

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relate to what the court read as a retaliation claim. The court read the allegations relating to the

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bribes, disciplinary hearing, and administrative segregation, as part of the retaliation claim.

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However, to the extent plaintiff is attempting to set forth separate and distinct claims for those

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allegations, the court will address them as part of the motion to dismiss.

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1.

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The Due Process Clause protects prisoners from being deprived of life, liberty, or

Due Process

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property without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to

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state a claim of deprivation of due process, a plaintiff must allege the existence of a liberty or

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property interest for which the protection is sought. See Ingraham v. Wright, 430 U.S. 651, 672

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(1977); Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972). Liberty interests can arise both from

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the Constitution and from state law. See Hewitt v. Helms, 459 U.S. 460, 466 (1983); Meachum

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v. Fano, 427 U.S. 215, 224-27 (1976); Smith v. Sumner, 994 F.2d 1401, 1405 (9th Cir. 1993). In

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determining whether the Constitution itself protects a liberty interest, the court should consider

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whether the practice in question “is within the normal limits or range of custody which the

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conviction has authorized the State to impose.” Wolff, 418 U.S. at 557-58; Smith, 994 F.2d at

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1405. Applying this standard, the Supreme Court has concluded that the Constitution itself

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provides no liberty interest in good-time credits, see Wolff, 418 U.S. at 557; in remaining in the

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general population, see Sandin v. Conner, 515 U.S. 472, 485-86 (1995); in not losing privileges,

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see Baxter v. Palmigiano, 425 U.S. 308, 323 (1976); in staying at a particular institution, see

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Meachum, 427 U.S. at 225-27; or in remaining in a prison in a particular state, see Olim v.

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Wakinekona, 461 U.S. 238, 245-47 (1983).

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In determining whether state law confers a liberty interest, the Supreme Court has

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adopted an approach in which the existence of a liberty interest is determined by focusing on the

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nature of the deprivation. See Sandin v. Connor, 515 U.S. 472, 481-84 (1995). In doing so, the

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Court has held that state law creates a liberty interest deserving of protection only where the

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deprivation in question: (1) restrains the inmate’s freedom in a manner not expected from the

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sentence; and (2) “imposes atypical and significant hardship on the inmate in relation to the

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ordinary incidents of prison life.” Id. at 483-84. However, placement in administrative

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segregation alone does not necessarily implicate a protected liberty interest. See id. at 486.

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Prisoners in California do have a liberty interest in the procedures used in prison disciplinary
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hearings where a successful claim would not necessarily shorten the prisoner’s sentence. See

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Ramirez v. Galaza, 334 F.3d 850, 853, 859 (9th Cir. 2003) (concluding that a due process

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challenge to a prison disciplinary hearing which did not result in the loss of good-time credits

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was cognizable under § 1983); see also Wilkinson v. Dotson, 544 U.S. 74, 82 (2005) (concluding

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that claims which did not seek earlier or immediate release from prison were cognizable under §

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1983).

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With respect to prison disciplinary proceedings, due process requires prison

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officials to provide the inmate with: (1) a written statement at least 24 hours before the

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disciplinary hearing that includes the charges, a description of the evidence against the inmate,

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and an explanation for the disciplinary action taken; (2) an opportunity to present documentary

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evidence and call witnesses, unless calling witnesses would interfere with institutional security;

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and (3) legal assistance where the charges are complex or the inmate is illiterate. See Wolff, 418

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U.S. at 563-70. Due process is satisfied where these minimum requirements have been met, see

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Walker v. Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994), and where there is “some evidence” in

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the record as a whole which supports the decision of the hearing officer, see Superintendent v.

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Hill, 472 U.S. 445, 455 (1985). The “some evidence” standard is not particularly stringent and is

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satisfied where “there is any evidence in the record that could support the conclusion reached.”

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Id. at 455-56. However, a due process claim challenging the loss of good-time credits as a result

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of an adverse prison disciplinary finding is not cognizable under § 1983 and must be raised by

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way of habeas corpus. See Blueford v. Prunty, 108 F.3d 251, 255 (9th Cir. 1997).

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Here, to the extent plaintiff is claiming that he was denied due process in relation

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to his prison disciplinary proceeding and/or his placement in administrative segregation, the

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undersigned agrees that he fails to state a claim. It is clear from the documents submitted with

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his complaint and opposition to the motion that plaintiff was provided notice of the hearing and

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an opportunity to be heard, and there is at least the suggestion that there was some evidence to

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support the findings of the lesser charge of possession of a dangerous contraband as the cutting
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tool was found in his cell.1 In addition, a direct challenge to his prison disciplinary proceeding

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would likely be barred as he was assessed the loss of good time credits. See Heck v. Humphrey,

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512 U.S. 477, 483-84 (1994) (concluding that § 1983 claim not cognizable because allegations

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were akin to malicious prosecution action which includes as an element a finding that the

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criminal proceeding was concluded in plaintiff’s favor); Edwards v. Balisok, 520 U.S. 641, 646

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(1987) (holding that §1983 claim not cognizable because allegations of procedural defects and a

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biased hearing officer implied the invalidity of the underlying prison disciplinary sanction of loss

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of good-time credits). Plaintiff seems to argue that placement in administrative segregation does

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rise to the level of “atypical and significant hardship,” but fails to explain how. He does not

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allege he was kept in such housing for an extended period of time without review, nor whether he

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suffered some other significant hardship other inmates did not suffer.

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Therefore, as a stand alone claim, plaintiff’s claim for denial of due process

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relating to his prison disciplinary proceedings should be dismissed. However, to the extent they

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are related to his retaliation claim, the allegations of false charges and placement in

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administrative segregation for the purpose of retaliating against plaintiff should be considered.

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2.

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Defendants argue that plaintiff cannot make a state law claim for false

False Imprisonment

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imprisonment as he is incarcerated pursuant to a valid state court judgment, and housing in

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administrative segregation cannot form the basis of such a claim. Plaintiff does not address this

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claim in his opposition. It appears therefore that plaintiff concedes that there is no false

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imprisonment claim alleged in his complaint.

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False imprisonment is a state law tort, not a constitutional challenge. As

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defendants set forth, to state a claim for false imprisonment, a plaintiff must allege he was

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restrained by another without proper authority, and the restraint was completely unlawful and

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While plaintiff certainly contends the clip (which was modified into a cutting tool
like a razor) was not his, he does not challenge that the cutting instrument was found in his cell.
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without authority. See Collins v. County of Los Angeles, 50 Cal. Rptr. 586 (Cal. App 1966),

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Singleton v. Perry, 289 P.2d 794, 45 Cal.2d 489 (Cal. 1955). As there is no challenge in this

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action as to whether plaintiff is legally incarcerated, he cannot sustain a false imprisonment

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claim, even if he was wrongfully housed in administrative segregation for a period of time.

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Thus, as a stand alone claim, plaintiff cannot state a claim for false imprisonment,

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and that claim should be dismissed. However, as discussed above, to the extent plaintiff is

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claiming he was falsely charged with the prison disciplinary, was wrongfully found guilty, and

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wrongfully placed in administrative segregation, all as part of his retaliation claim, such

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allegations should be considered.

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3.

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Next, defendants argue the retaliation claims against defendant Blim should be

Retaliation

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dismissed because plaintiff failed to plead sufficient facts showing defendant Blim’s motivation

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for his conduct and that defendant Blim’s conduct was not motivated by legitimate correctional

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goals. Plaintiff argues that he sufficiently alleged Blim’s actions were motivated by retaliation,

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except perhaps the chilling effect factor. However, he argues, this is not detrimental to his claim.

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In order to state a claim under 42 U.S.C. § 1983 for retaliation, the prisoner must

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establish that he was retaliated against for exercising a constitutional right, and that the

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retaliatory action was not related to a legitimate penological purpose, such as preserving

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institutional security. See Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam).

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In meeting this standard, the prisoner must demonstrate a specific link between the alleged

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retaliation and the exercise of a constitutional right. See Pratt v. Rowland, 65 F.3d 802, 807 (9th

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Cir. 1995); Valandingham v. Bojorquez, 866 F.2d 1135, 1138-39 (9th Cir. 1989). The prisoner

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must also show that the exercise of First Amendment rights was chilled, though not necessarily

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silenced, by the alleged retaliatory conduct. See Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir.

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2000), see also Rhodes v. Robinson, 408 F.3d 559, 569 (9th Cir. 2005). Thus, the prisoner

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plaintiff must establish the following in order to state a claim for retaliation: (1) prison officials
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took adverse action against the inmate; (2) the adverse action was taken because the inmate

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engaged in protected conduct; (3) the adverse action chilled the inmate’s First Amendment

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rights; and (4) the adverse action did not serve a legitimate penological purpose. See Rhodes,

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408 F.3d at 568.
Here, specific allegations of retaliation2 against defendant Blim are minimal at

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best. Plaintiff’s complaint alleges that defendant Blim did not interview him prior to ordering

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his placement in administrative segregation and referring the weapons possession charge to the

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county district attorney’s office for possible prosecution. Defendant Blim also allegedly refused

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to talk with plaintiff, denying his request to do so. In his opposition to the motion to dismiss,

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plaintiff acknowledges his failure to specifically plead a chilling effect, but suggests that inmate

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Lopez’s testimony that he heard defendant Hoover state “this is for Gomez” is sufficient to find

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all action against him must have been retaliatory.

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Reviewing the claims in the complaint, the undersigned has to agree with

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defendant Blim’s argument. Plaintiff alleges the defendant Blim placed him in administrative

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segregation upon receiving the report of the discovery of a weapon in plaintiff’s cell. Plaintiff

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alleges both he and his cell mate were placed in administrative segregation upon this discovery,

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while another inmate (the alleged owner of the tool) was simply sent back to his cell. While

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plaintiff argues the alleged weapon was only a cutting tool, and that cutting tool belonged to

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another inmate who was in his cell hanging a shelf, there is certainly the appearance of a

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legitimate penological motivation for defendant Blim’s actions. There is nothing plead in the

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complaint or argued in the opposition to indicate defendant Blim knew about plaintiff’s case

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against Gomez, defendant Hoover’s alleged assault on plaintiff due to that case, or that defendant

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Blim was similarly motivated.

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In addition to the retaliation claim, plaintiff also alleges defendant Blim denied
him access to medical treatment for his injuries. Those claims are not at issue in the motion to
dismiss.
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Therefore, the undersigned finds the retaliation claims against defendant Blim

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should be dismissed. However, as there are unchallenged denial of medical treatment claims

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against defendant Blim, defendant Blim should not be dismissed from this action.

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4.

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Finally, defendants challenge plaintiff’s claim for bribery against defendant

Bribery

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Olivas. Plaintiff alleges that defendant Olivas attempted to bribe him into dropping all legal

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action against the other defendants. In the motion to dismiss, defendants argue plaintiff does not

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and cannot state a claim for bribery as he has no standing to bring such an action based on

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criminal conduct. See Cal. Pen. Code § 67.

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Plaintiff argues that his bribery claims against defendant Olivas relate to his

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retaliation claim, alleging that defendant Olivas extended his time in administrative segregation

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when he refused to drop the charges against the other defendants.

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The undersigned agrees that plaintiff cannot maintain a civil action against

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defendant Olivas for the crime of bribery, and any stand alone claim therefor should be

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dismissed. However, plaintiff alleges that the attempts of bribery were related to his charges

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against the other defendant. To the extent as those allegations relate to his claim of retaliation,

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the undersigned finds the allegations should be considered.

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B.

OTHER MOTIONS

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In addition to the motion to dismiss, and proper responses thereto, plaintiff filed a

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surreply to defendants’ reply, defendants filed a motion to strike the surreply, and plaintiff filed a

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belated request for leave of court to have filed his surreply.

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Neither the Federal Rules of Civil Procedure nor the Eastern District of California

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Local Rules contemplate the filing of a surreply in response to a motion to dismiss. See Local

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Rule 230. Accordingly, the undersigned finds it appropriate to grant defendant’s motion to

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strike, and deny plaintiff’s request for additional time and his belated request for permission to

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file a surreply.3

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III. CONCLUSION

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Based on the foregoing, the undersigned recommends that defendants’ motion to
dismiss be granted in part and denied in part, as follows:

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To the extent plaintiff is claiming due process violation relating to his

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prison disciplinary proceedings or placement in administrative segregation, such claims should

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be dismissed for failure to state a claim;

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be dismissed for failure to state a claim;

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The motion to dismiss defendants Blim and Olivas from this action should

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This action should proceed on plaintiff’s excessive force, retaliation and

be denied;

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The motion to dismiss the retaliation claims against defendant Blim only

should be granted;

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To the extent plaintiff is claiming bribery, such claims should be

dismissed for failure to state a claim;

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To the extent plaintiff is claiming false imprisonment, such claims should

medical treatment claims except as outlined above; and

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Defendant’s motion to strike (Doc. 48) should be granted, and Plaintiff’s

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motion for leave to file a surreply (Doc. 49) and request for additional time in which to do so

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(Doc. 46) should be denied.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

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The undersigned notes, however, that even if the court was to consider the
surreply, there is nothing in the surreply which would alter the discussion above or the
recommendation herein.
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after being served with these findings and recommendations, any party may file written

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objections with the court. Responses to objections shall be filed within 14 days after service of

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objections. Failure to file objections within the specified time may waive the right to appeal.

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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: September 2, 2011
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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