Sanchez v. Virga, et al.,

Filing 55

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 10/27/15 RECOMMENDING that Defendant Parkers motion to dismiss (ECF No. 51 ) be granted; Defendant Parker be dismissed from this action; and this case be closed. Referred to Judge John A. Mendez; Objections to F&R due within 14 days.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MANUEL GUADALUPE SANCHEZ,
JR.,
Plaintiff,

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FINDINGS AND RECOMMENDATIONS
v.

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No. 2:10-cv-2029 JAM CKD P

T. VIRGA, et al.,
Defendants.

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Plaintiff is a California prisoner proceeding pro se with an action for violation of civil

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rights under 42 U.S.C. § 1983. On October 28, 2014, the court screened plaintiff’s fourth

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amended complaint (ECF No. 35) pursuant to 28 U.S.C. § 1915A(a). The court found service of

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process appropriate for defendant Parker (defendant) with respect to plaintiff’s claim that

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defendant violated plaintiff’s right to due process arising under the Fourteenth Amendment by

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denying plaintiff a fair opportunity to rebut charges that plaintiff was a member of a prison gang

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and therefore eligible for indefinite placement in the “Security Housing Unit” (SHU) which

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essentially amounts to solitary confinement.1 ECF No. 37. Defendant waived service of process

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In the SHU, inmates usually remain alone in their cells for at least 21 hours every day. Inmates
are also denied certain privileges like telephone calls and contact visits. SHU inmates are not
permitted to participate in vocational, recreational or educational programming.
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on March 17, 2015 (ECF No. 50) and filed a motion to dismiss on April 1, 2015 (ECF No. 51).

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Defendant argues that plaintiff’s claim is barred by the doctrine of res judicata (claim preclusion)

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and / or collateral estoppel (issue preclusion). Because it is clear under Ninth Circuit precedent

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that plaintiff’s remaining claim is barred under the collateral estoppel doctrine, the court will

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recommend that defendant’s motion to dismiss be granted.

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In his fourth amended complaint, plaintiff alleges that in August of 2007, officials at

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California State Prison, Sacramento commenced proceedings against plaintiff to have him

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validated as a member of the “Mexican Mafia” prison gang. Plaintiff was eventually found to be

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a member of the “Mexican Mafia” and ordered to serve an indefinite term in the “SHU.” Plaintiff

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was released from the “SHU” on January 16, 2013.

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In Wilkinson v. Austin, 545 U.S. 209 (2005), the Supreme Court found that under the Due

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Process Clause of the Fourteenth Amendment, inmates are entitled to certain process before being

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ordered to serve an indefinite term in conditions which essentially amount to solitary

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confinement. That process includes: 1) advance notice of the basis for consideration of

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placement in solitary confinement; 2) a fair opportunity for rebuttal; and 3) a short statement of

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reasons for placement in solitary confinement. Id. at 225-26.
Plaintiff alleges that as the “Institutional Gang Investigator,” it was defendant’s

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responsibility to allow plaintiff to rebut the evidence that plaintiff was a member of the “Mexican

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Mafia,” but that defendant did not interview plaintiff before validating him as a member of the

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“Mexican Mafia.”

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Defendant argues that plaintiff has already litigated circumstances related to his having

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been validated as a member of the “Mexican Mafia” and his placement in the SHU in 2007.

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Defendant points to a petition for writ of habeas corpus filed by plaintiff in the Superior Court of

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Sacramento County on February 20, 2009. ECF No. 52-1, 52-2 & 52-3.2 In the petition, plaintiff

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challenged his being validated as gang member and specifically alleged that his right to due

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The court takes judicial notice of the contents of the petition under Federal Rule of Civil
Procedure 201(b). In any case, plaintiff does not challenge the authenticity of defendant’s exhibit
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process was violated because plaintiff was not interviewed by defendant “prior to delivering

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plaintiff’s validation packet to the office of correctional safety.” ECF No. 52-1 at 10. Plaintiff

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provided these facts in support of his claim:

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1. On August 12, 2007, defendant gave plaintiff a “validation package.” Id. at 37.3

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2. On August 14, 2007, defendant requested that plaintiff be interviewed by defendant

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with respect to the charges of gang membership. In response to the request for an interview,

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plaintiff requested more information. ECF No. 52-1 at 39 & 82.

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3. August 24, 2007, plaintiff received a completed “128-B” form from defendant. In the

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“128-B,” defendant claimed that plaintiff had received full disclosure of all evidence suggesting

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he was a member of the “Mexican Mafia,” that defendant interviewed plaintiff, and plaintiff had

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provided defendant with six pages of rebuttal testimony. Id. at 40.4

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4. Plaintiff alleges however that he was not interviewed by defendant. ECF No. 52-1 at
82.

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Upon receipt of plaintiff’s state habeas petition, the Superior Court of Sacramento County

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ordered respondent to file a response. ECF No. 52-4 at 2.5 Respondent, the Warden of California

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State Prison, Sacramento, complied with the court’s order. ECF No. 52-6 at 44.6 At some point,

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plaintiff was appointed counsel, and counsel filed a traverse. ECF No. 52-6 at 88.7 After

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reviewing the petition, response and traverse, the court found as follows with respect to plaintiff’s

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The package itself may be found at ECF No. 52-2, p. 5.

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The completed “128-B” may be found at ECF No. 52-3 p. 21.

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The court takes judicial notice of the contents of the decision of the Superior Court of
Sacramento County under Federal Rule of Civil Procedure 201(b). In any case, plaintiff does not
challenge the authenticity of defendant’s exhibit 2.

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The court takes judicial notice of the contents of the Warden’s response under Federal Rule of
Civil Procedure 201(b). In any case, plaintiff does not challenge the authenticity of this
document.
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The court takes judicial notice of the contents of the traverse under Federal Rule of Civil
Procedure 201(b). In any case, plaintiff does not challenge the authenticity of this document.
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claim that he had been denied an interview before his validation package was sent to the Office of

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Correctional Safety:

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[P]etitioner was, in fact, provided with the opportunity to be
interviewed. That he chose to attempt to unnecessarily delay the
[gang validation] proceedings by trying to obtain information that
he was not entitled to or that was irrelevant does not translate into a
denial of his right to be heard. To find otherwise would allow
inmates to manipulate the system in an attempt to derail validation
proceedings and frustrate the efforts of correctional officials who
are trying to maintain the safety and security of the institution.

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Id. at 8-10.
The Ninth Circuit’s decision in Silverton v. Department of Treasury, 644 F.2d 1341 (9th

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Cir. 1981) is directly on point with respect to the issue of collateral estoppel (issue preclusion). In

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that case, plaintiff sought reversal of criminal convictions in California habeas actions. His

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petitions for writ of habeas corpus were denied. Later, plaintiff filed an action in the U.S. District

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Court under 42 U.S.C. § 1983 seeking to have his disbarment set aside by again arguing, among

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other things, that his criminal convictions were not valid. Id. at 1343-44. The claims presented in

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the district court action were brought in the state habeas action. Id. at 1346.

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The Ninth Circuit ultimately found that plaintiff was precluded from presenting his claims

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in the district court because he had a “full and fair hearing” concerning his claims in the state

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habeas action:

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There is no reason to conclude that a decision by a state habeas
court, after a full and fair hearing, should be considered to have any
less weight or credibility than a state court decision in a direct
action. If issues are presented to a habeas court, it can be assumed
to apply the appropriate constitutional standards and reach a
decision just as would be done on direct review. . .

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In sum, we hold that because of the nature of a state habeas
proceeding, a decision actually rendered should preclude an
identical issue from being relitigated in a subsequent § 1983 action
if the state court afforded a full and fair opportunity for the issue to
be heard and determined under federal standards.

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Id. 1346-47. Further, the Court was not concerned with the fact that plaintiff sought release from

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custody in his habeas actions and expungement in his district court action:

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[T]he posture of the identical constitutional infringement issues in
each is the same. The mere difference in the form of relief is
unimportant.

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Id. at 1347.8
In his opposition, plaintiff asserts, among other things, that collateral estoppel should not

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bar his claim in this action because he was denied discovery and an evidentiary hearing in his

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state habeas action. However, he fails to point to any law indicating that a lack of discovery and

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/ or an evidentiary hearing renders a state habeas action unfair or incomplete as a matter of law.

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Further, he fails to point to anything suggesting that the superior court’s decision not to hold an

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evidentiary hearing or permit discovery rendered his state court proceedings unfair or somehow

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incomplete, or that there was any good reason to permit discovery or hold an evidentiary hearing.

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The court considered plaintiff’s lengthy habeas petition, his numerous exhibits, ordered

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respondent to file a response and appointed plaintiff counsel. Nothing suggests that the superior

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court needed to take any further action to ensure a full and fair hearing.
Plaintiff also asserts he “was denied review in the state appellate court and state supreme

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court.” However, after his claim was rejected by the Superior Court of Sacramento County, he

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submitted his claim to the California Court of Appeal (ECF No. 52-8 at 8) and the claim was

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denied (ECF No. 52-8 at 2).9 Whether he was denied review by the California Supreme Court is

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of no consequence since review in that court is always discretionary, as is United States Supreme

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Court review in a federal action.

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For all of the foregoing reasons, plaintiff is barred under the collateral estoppel doctrine as

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applied by the Ninth Circuit in Silverton from re-litigating his claim regarding defendant’s failure

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In a recent Ninth Circuit decision, Gonzales v. California Dept. of Corrections and Rehab., 739
F.3d 1226 (9th Cir. 2013), the Ninth Circuit recognizes that Silverton stands for the proposition
that a decision actually rendered in a California habeas action precludes an identical issue from
being re-litigated in a subsequent § 1983 action if the habeas court afforded a full and fair
opportunity for the issue to be heard.
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The court takes judicial notice of the contents of the petition filed by plaintiff in the California
Court of Appeal and the decision denying the petition under Federal Rule of Civil Procedure
201(b). In any case, plaintiff does not challenge the authenticity of these documents.

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to interview him prior to plaintiff being validated as a member of a prison gang. Accordingly,

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defendant should be dismissed from this action, and this case should be closed.

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. Defendant Parker’s motion to dismiss (ECF No. 51) be granted;

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2. Defendant Parker be dismissed from this action; and

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3. This case be closed.

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These findings and recommendations are 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 days

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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 and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be served and filed within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: October 27, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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sanc2029.57

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