(PC) Dixon v. Lizarraga et al

Filing 24

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Jeremy D. Peterson on 11/18/2020 ORDERING Clerk to assign a district judge and RECOMMENDING this case be dismissed with prejudice for Plaintiff's failure to state a claim. Assigned and referred to Judge Kimberly J. Mueller. Objections due within 30 days of the service of these findings and recommendations. (Henshaw, R)

Case 2:19-cv-01966-KJM-JDP Document 24 Filed 11/18/20 Page 1 of 6
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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case No. 2:19-cv-01966-JDP (PC)

DELMAR JEWELL DIXON, Jr.,

ORDER AND FINDINGS AND
RECOMMENDATIONS TO DISMISS THE
CASE WITH PREJUDICE FOR FAILURE TO
STATE A CLAIM

Plaintiff,
v.
JOE LIZARRAGA, et al.,

OBJECTIONS DUE IN THIRTY DAYS

Defendants.

ECF No. 22

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Plaintiff Delmar Jewell Dixon, Jr. is a state prisoner proceeding without counsel in this

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civil rights action brought under 42 U.S.C. § 1983. His third amended complaint, ECF No. 22, is

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before the court for screening. He alleges that the six named defendants violated his

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constitutional rights by generating and providing false information that was used to charge and

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convict him in California state court of conspiracy to possess contraband in violation of

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California Penal Code § 182, subd. (a)(1). ECF No. 22 at 8. Plaintiff does not allege that his

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state criminal conviction has been reversed or overturned. Accordingly, his claims of “false

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information” that bear on his conviction are barred by Heck v. Humphrey, 512 U.S. 477, 486-87

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(1994). Further, plaintiff’s claims regarding: (1) defendants’ provision of false information

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regarding a crime he was not convicted of; (2) defendants’ failure to read him Miranda warnings;

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(3) defendants’ failure to provide him with counsel during prison disciplinary proceedings; and
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Case 2:19-cv-01966-KJM-JDP Document 24 Filed 11/18/20 Page 2 of 6
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(4) defendants’ violations of prison regulations and the state penal code do not state viable

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constitutional claims.

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Screening and Pleading Requirements
A complaint must contain a short and plain statement that plaintiff is entitled to relief,

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Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its

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face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not

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require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009). If the allegations “do not permit the court to infer more than the mere

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possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not

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identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024,

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1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that

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give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264

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n.2 (9th Cir. 2006) (en banc) (citations omitted). At screening, we must identify cognizable

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claims and dismiss “any portion of the complaint” that “is frivolous, malicious, or fails to state a

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claim upon which relief may be granted” or that “seeks monetary relief from a defendant who is

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immune from such relief.” 28 U.S.C. § 1915A(b).

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The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404

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U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it

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appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which

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would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017).

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However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements

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of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251,

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1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

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Discussion

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A.

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Heck states that:

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False Information Bearing on Conviction

[I]n order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid,
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a § 1983 plaintiff must prove that the conviction or sentence has
been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s issuance
of a writ of habeas corpus. A claim for damages bearing that
relationship to a conviction or sentence that has not been so
invalidated is not cognizable under § 1983.

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512 U.S. at 486-87 (footnote and citation omitted). Here, plaintiff appears to allege that

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defendants generated and provided false information that state prosecutors relied on in obtaining

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his conviction. ECF No. 22 at 8 (“Information provided by Joe Lizarraga and all defendants from

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Mule Creek State Prison was used by [the] Amador District Attorney’s Office to file felony

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charges.”). Plaintiff has not alleged that the relevant conviction has been overturned. Thus, any

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claim relating to false information that underlies his conviction and was provided by defendants

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cannot proceed.

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B.

False Information Related to Distribution of Drugs

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Plaintiff complains that defendant Navarro falsely accused him of intending to distribute

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drugs in a rules violation report. Id. at 10-11. He emphasizes that he was convicted of conspiracy

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to obtain drugs but not of conspiracy to distribute them within the prison. Id. at 10 (“[Defendant]

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Daniel Navarro only can prove that the plaintiff wanted to obtain drugs from his alleged co-

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conspirators, not that his intent was to sell them.”). However, the filing of a false rules violation

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report does not, standing alone, offend the constitution. See, e.g., Ellis v. Foulk, No. 14-cv-0802

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AC P, 2014 U.S. Dist. LEXIS 131831, 2014 WL 4676530, at *2 (E.D. Cal. Sept. 18, 2014)

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(“Plaintiff’s protection from the arbitrary action of prison officials lies in ‘the procedural due

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process requirements as set forth in Wolff v. McDonnell.’”) (citing Hanrahan v. Lane, 747 F.2d

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1137, 1140 (7th Cir. 1984)); Solomon v. Meyer, No. 11-cv-02827-JST (PR), 2014 U.S. Dist.

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LEXIS 9865, 2014 WL 294576, at *2 (N.D. Cal. Jan. 27, 2014) (“[T]here is no constitutionally

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protected right to be free from false disciplinary charges.”) (citing Chavira v. Rankin, No. C 11-

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5730 CW (PR), 2012 U.S. Dist. LEXIS 167423, 2012 WL 5914913, at *1 (N.D. Cal. Nov. 26,

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2012)).

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Plaintiff does claim that the false information regarding his intent to distribute drugs was
used to keep him in administrative segregation. ECF No. 22 at 4. He has not sufficiently alleged,
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however, that the disciplinary proceedings that led to his placement in administrative segregation

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were constitutionally inadequate. See Gadsden v. Gehris, No. 20-cv-0470-WQH (DEB), 2020

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U.S. Dist. LEXIS 177509, *25, 2020 WL 5748094 (S.D. Cal. Sept. 25, 2020) (“The allegation of

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the filing of false disciplinary charges by itself does not state a claim under 42 U.S.C. § 1983

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because federal due process protections are contained in the ensuing disciplinary proceedings

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themselves.”). Neither has he made allegations about the length of time that he was kept in

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administrative segregation. Under the Supreme Court’s decision in Sandin v. Conner, only

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“atypical, significant deprivation[s]” create liberty interests. 515 U.S. 472, 485-86 (1995).

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Courts in this circuit have found that even lengthy stays in administrative segregation sometimes

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do not amount to an atypical, significant deprivation. See, e.g., Rodgers v. Reynaga, No. CV 1-

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06-1083-JAT, 2009 U.S. Dist. LEXIS 81306, at *7, 2009 WL 621130 (E.D. Cal. Jan. 8, 2009)

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(“Plaintiff’s placement in administrative segregation for five months was not an atypical and

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significant hardship.”); Williams v. Foote, No. CV 08-2838-CJC (JTL), 2009 U.S. Dist. LEXIS

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81598, *29-34 (C.D. Cal. Apr. 30, 2009) (no protected liberty interest where prisoner was housed

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in administrative segregation for 701 days) (adopted at Williams v. Foote, No. CV 08-2838-CJC

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(JTL), 2009 U.S. Dist. LEXIS 46676, 2009 WL 1520029 (C.D. Cal. May 28, 2009)).
Defendants’ Failure to Mirandize and Provide Counsel in Disciplinary Proceedings

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C.

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Plaintiff claims that defendants violated his rights by failing to read him a Miranda1

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warning prior to his arrest or at “anytime during [his] case.” ECF No. 22 at 6. To the extent that

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plaintiff argues that his state criminal conviction is flawed because of defendants’ alleged failure

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to provide a Mirandize warning, that claim is Heck-barred. He may raise that claim, if at all, in a

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petition for a writ of habeas corpus. And to the extent that he argues that defendants were

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required to Mirandize him in connection with any prison disciplinary proceedings, that claim

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fails. See Chavez v. Martinez, 538 U.S. 760, 772 (2003) (no section 1983 liability for failure to

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provide Miranda warnings); see also Lopez v. Swarthout, NO. CV 09-0829-R (FMO), 2011 U.S.

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See Miranda v. Arizona, 384 U.S. 436 (1966).
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Dist. LEXIS 51845, *32, 2011 WL 1832710 (C.D. Cal. Feb. 22, 2011) (“[T]here is no per se rule

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that any questioning conducted inside a prison setting requires a Miranda warning.”).

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Similarly, there is no right to counsel in prison disciplinary proceedings. Wolff v.

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McDonnell, 418 U.S. 539, 570 (1974). If plaintiff is alleging that his right to counsel was

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violated with respect to his state conviction, that claim is Heck-barred and must be raised in a

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petition for a writ of habeas corpus.

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D.

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As stated in the prior screening order, there is no section 1983 liability for violations of

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Violations of Prison Regulations and the State Penal Code

state law. See Lovell by & Through Lovell v. Poway Unified Sch. Dist., 90 F.3d 367, 370 (9th

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Cir. 1996) (“To the extent that the violation of a state law amounts to the deprivation of a state-

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created interest that reaches beyond that guaranteed by the federal Constitution, section 1983

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offers no redress.”).

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E.

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I find that further opportunities for amendment are not warranted. While the Federal

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Rules of Civil Procedure offer a policy of liberal amendment, “liberality in granting leave to

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amend is subject to several limitations,” and “need not be granted where the amendment of the

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complaint would cause the opposing party undue prejudice, is sought in bad faith, constitutes an

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exercise in futility, or creates undue delay.” Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d

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1149, 1160 (9th Cir. 1989). In addition, a “district court’s discretion to deny leave to amend is

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particularly broad where plaintiff has previously amended the complaint.” Id. Here, plaintiff has

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already been given multiple chances to amend and has failed to state a cognizable claim each

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time. Further amendment thus appears futile.

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Further Amendment

It is ORDERED that the Clerk of Court shall assign a district judge to rule on these
findings and recommendations.

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For the reasons above, the court RECOMMENDS that this case be dismissed with

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prejudice for plaintiff’s failure to state a claim. This recommendation will be submitted to a U.S.

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district judge presiding over the case under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within

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thirty days of the service of these findings and recommendations, the parties may file written
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Case 2:19-cv-01966-KJM-JDP Document 24 Filed 11/18/20 Page 6 of 6
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objections with the court and serve a copy on all parties. That document must be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” The presiding district judge

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will then review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C).

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IT IS SO ORDERED.

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Dated:

November 18, 2020

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JEREMY D. PETERSON
UNITED STATES MAGISTRATE JUDGE

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