Trevino v. Dotson et al

Filing 21

ORDER OF SERVICE (Certificate of Service Attached). Signed by Judge Phyllis J. Hamilton on 9/22/16. (napS, COURT STAFF) (Filed on 9/22/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ROBERT TREVINO,
Plaintiff,

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United States District Court
Northern District of California

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Case No.15-cv-05373-PJH
ORDER OF SERVICE

v.
E. DOTSON, et al.,
Defendants.

Re: Dkt. No. 20

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Plaintiff, a state prisoner, filed a pro se civil rights complaint under 42 U.S.C. §

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1983. The first amended complaint was dismissed with leave to amend and plaintiff has

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filed a second amended complaint.
DISCUSSION

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STANDARD OF REVIEW

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Federal courts must engage in a preliminary screening of cases in which prisoners

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seek redress from a governmental entity or officer or employee of a governmental entity.

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28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and

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dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief

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may be granted, or seek monetary relief from a defendant who is immune from such

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relief. Id. at 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v.

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Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

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Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement

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of the claim showing that the pleader is entitled to relief." "Specific facts are not

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necessary; the statement need only '"give the defendant fair notice of what the . . . . claim

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is and the grounds upon which it rests."'" Erickson v. Pardus, 551 U.S. 89, 93 (2007)

(citations omitted). Although in order to state a claim a complaint “does not need detailed

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factual allegations, . . . a plaintiff's obligation to provide the 'grounds’ of his 'entitle[ment]

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to relief' requires more than labels and conclusions, and a formulaic recitation of the

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elements of a cause of action will not do. . . . Factual allegations must be enough to

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raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550

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U.S. 544, 555 (2007) (citations omitted). A complaint must proffer "enough facts to state

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a claim to relief that is plausible on its face." Id. at 570. The United States Supreme

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Court has recently explained the “plausible on its face” standard of Twombly: “While legal

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conclusions can provide the framework of a complaint, they must be supported by factual

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allegations. When there are well-pleaded factual allegations, a court should assume their

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United States District Court
Northern District of California

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veracity and then determine whether they plausibly give rise to an entitlement to relief.”

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Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

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elements: (1) that a right secured by the Constitution or laws of the United States was

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violated, and (2) that the alleged deprivation was committed by a person acting under the

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color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

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LEGAL CLAIMS

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Plaintiff was found guilty of a prison disciplinary violation for assault on another

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inmate with a weapon capable of causing serious physical injury. The disciplinary finding

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arose from a July 15, 2011, incident where plaintiff fought with another inmate. Plaintiff

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admits that he fought with the other inmate but denies using a weapon. He presents four

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causes of action. He argues that 1) his due process rights were violated with respect to

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the disciplinary hearing; 2) defendants engaged in a conspiracy to frame him and find him

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guilty; 3) several defendants framed him in retaliation for a previously filed civil rights

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action; and 4) his inmate appeals were improperly denied and he was denied access to

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the courts. Second Amended Complaint (“SAC”) at ¶¶ 62-117.

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1. Due Process

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Interests 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,

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223-27 (1976). Changes in conditions so severe as to affect the sentence imposed in an

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unexpected manner implicate the Due Process Clause itself, whether or not they are

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authorized by state law. See Sandin v. Conner, 515 U.S. 472, 484 (1995). Deprivations

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authorized by state law that are less severe or more closely related to the expected terms

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of confinement may also amount to deprivations of a procedurally protected liberty

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interest, provided that (1) state statutes or regulations narrowly restrict the power of

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prison officials to impose the deprivation, i.e., give the inmate a kind of right to avoid it,

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and (2) the liberty in question is one of "real substance." See id. at 477-87.

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Allegations by a prisoner that he was denied due process in conjunction with a

United States District Court
Northern District of California

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disciplinary proceeding do not present a constitutionally cognizable claim, however,

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unless the deprivation suffered is one of "real substance" as defined in Sandin. "Real

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substance" will generally be limited to freedom from (1) restraint that imposes "atypical

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and significant hardship on the inmate in relation to the ordinary incidents of prison life,"

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id. at 484 or (2) state action that "will inevitably affect the duration of [a] sentence," id. at

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487. In determining whether a restraint is an “atypical and significant hardship,” Sandin

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suggests that courts should consider whether the challenged condition mirrored the

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conditions imposed on inmates in administrative segregation and protective custody, and

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thus comported with the prison’s discretionary authority; the duration of the condition; the

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degree of restraint imposed; and whether the discipline will invariably affect the duration

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of the prisoner's sentence. See Serrano v. Francis, 345 F.3d 1071, 1078 (9th Cir. 2003).

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Prisoners retain their right to due process subject to the restrictions imposed by

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the nature of the penal system. See Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Thus

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although prison disciplinary proceedings are not part of a criminal prosecution and the full

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panoply of rights due a defendant in such proceedings does not apply, where serious

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rules violations are alleged and the sanctions to be applied implicate state statutes or

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regulations which narrowly restrict the power of prison officials to impose the sanctions

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and the sanctions are severe, the Due Process Clause requires certain minimum
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procedural protections. See id. at 556-57, 571-72 n.19.
Wolff established five procedural requirements. First, "written notice of the
charges must be given to the disciplinary-action defendant in order to inform him of the

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charges and to enable him to marshal the facts and prepare a defense." Wolff, 418 U.S.

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at 564. Second, "[a]t least a brief period of time after the notice, no less than 24 hours,

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should be allowed to the inmate to prepare for the appearance before the [disciplinary

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committee]." Id. Third, "there must be a 'written statement by the factfinders as to the

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evidence relied on and reasons' for the disciplinary action." Id. (quoting Morrissey v.

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Brewer, 408 U.S. 471, 489 (1972)). Fourth, "the inmate facing disciplinary proceedings

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should be allowed to call witnesses and present documentary evidence in his defense

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United States District Court
Northern District of California

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when permitting him to do so will not be unduly hazardous to institutional safety or

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correctional goals." Id. at 566; Fifth, "[w]here an illiterate inmate is involved . . . or

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[where] the complexity of the issue makes it unlikely that the inmate will be able to collect

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and present the evidence necessary for an adequate comprehension of the case, he

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should be free to seek the aid of a fellow inmate, or . . . to have adequate substitute aid . .

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. from the staff or from a[n] . . . inmate designated by the staff." Wolff, 418 U.S. at 570.

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Plaintiff alleges that defendants Hopkins, Lord and Waterman violated his due

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process rights with respect to the disciplinary hearing. SAC at ¶ 62. Liberally construed,

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his allegations are sufficient to proceed against Hopkins, Lord and Waterman.

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2. Conspiracy

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A civil conspiracy is a combination of two or more persons who, by some

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concerted action, intend to accomplish some unlawful objective for the purpose of

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harming another which results in damage. Gilbrook v. City of Westminster, 177 F.3d 839,

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856 (9th Cir. 1999). To prove a civil conspiracy, the plaintiff must show that the

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conspiring parties reached a unity of purpose or common design and understanding, or a

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meeting of the minds in an unlawful agreement. Id. To be liable, each participant in the

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conspiracy need not know the exact details of the plan, but each participant must at least

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share the common objective of the conspiracy. Id. A defendant's knowledge of and
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participation in a conspiracy may be inferred from circumstantial evidence and from

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evidence of the defendant's actions. Id. at 856-57.

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Plaintiff argues that prison officials planted the weapon as part of a conspiracy,

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falsified records and fingerprints, and medical staff falsified injuries on the other inmate

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and corresponding medical reports. Liberally construed, this claim is sufficient to proceed

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against defendants Dotson, Ambriz, Vega, Augiana, Collier, Elias, Mendoza, Milenewicz,

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Perez, Lord, Waterman, Keku, Sevier, Hopkins, Doss and Medina. SAC at ¶¶ 72-73.

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3. Retaliation

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"Within the prison context, a viable claim of First Amendment retaliation entails five
basic elements: (1) An assertion that a state actor took some adverse action against an

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United States District Court
Northern District of California

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inmate (2) because of (3) that prisoner's protected conduct, and that such action (4)

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chilled the inmate's exercise of his First Amendment rights, and (5) the action did not

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reasonably advance a legitimate correctional goal." Rhodes v. Robinson, 408 F.3d 559,

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567-68 (9th Cir. 2005) (footnote omitted). Accord Pratt v. Rowland, 65 F.3d 802, 806 (9th

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Cir. 1995) (prisoner suing prison officials under § 1983 for retaliation must allege that he

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was retaliated against for exercising his constitutional rights and that the retaliatory action

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did not advance legitimate penological goals, such as preserving institutional order and

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discipline); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam) (same).

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Plaintiff states that several defendants engaged in their actions in retaliation for a

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previously filed civil rights complaint. The fight in this case occurred on July 15, 2011,

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and the disciplinary hearing occurred on March 21, 2012, both at Salinas Valley State

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Prison. Plaintiff argues that the retaliation originated in 2005 at the Substance Abuse

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Treatment Facility when he was set up by prison officials and assaulted by his cellmate.

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SAC at ¶ 36. He filed a federal civil rights action in 2005. Plaintiff also describes

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retaliation that occurred at other prisons outside this district in 2005 to 2006 and 2008 to

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2010. Id. at ¶¶ 37-45.

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Despite being provided leave to amend on multiple occasions, plaintiff has still
failed to describe how defendants in this case retaliated against him. He states that the
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weapon was planted on him and he was illegally found guilty all in retaliation. However,

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plaintiff has failed to present allegations that these actions were because of his prior civil

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rights actions. Nor has he described how the disciplinary finding did not reasonably

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advance a legitimate correctional goal, especially as plaintiff admits he was fighting

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another inmate. Plaintiff presents no allegations that any of the defendants were even

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aware of plaintiff’s civil rights actions involving other prisons in different district that were

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filed many years before. While he has presented allegations of due process violations

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and conspiracy, which the court will serve, he has failed to present plausible allegations

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that the acts were in retaliation for any protected conduct. His conclusory allegations are

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insufficient. Because plaintiff has already been provided several opportunities to amend,

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United States District Court
Northern District of California

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this claim is dismissed with prejudice.

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4. Inmate Appeals

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There is no constitutional right to a prison administrative appeal or grievance

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system. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams, 855

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F.2d 639, 640 (9th Cir. 1988). Plaintiff’s claim that his inmate appeals were improperly

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denied was dismissed with prejudice in the prior screening order.

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5. Access to the Courts

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Prisoners have a constitutional right of access to the courts. See Lewis v. Casey,

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518 U.S. 343, 350 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977). To establish a

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claim for any violation of the right of access to the courts, the prisoner must prove that

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there was an inadequacy in the prison's legal access program that caused him an actual

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injury. See Lewis, 518 U.S. at 350-55. To prove an actual injury, the prisoner must show

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that the inadequacy in the prison's program hindered his efforts to pursue a non-frivolous

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claim concerning his conviction or conditions of confinement. See id. at 354-55

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Plaintiff argues that he was denied access to the courts with respect to inmate

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appeals and state and federal cases. Liberally construed, this claim is sufficient to

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proceed against defendant Medina with respect to denial of access to the courts for his

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cases concerning his conviction or conditions of confinement. SAC at ¶ 97.
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CONCLUSION

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1. Plaintiff’s motion to file a lengthy amended complaint (Docket No. 20) is

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GRANTED and the court has considered the second amended complaint. Plaintiff’s

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claims regarding retaliation and the denial of inmate appeals are dismissed with prejudice

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for the reasons set forth above. The remaining claims continue as described above.

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2. The clerk shall issue a summons and the United States Marshal shall serve,

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without prepayment of fees, copies of the second amended complaint with attachments

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and copies of this order on the following defendants at Salinas Valley State Prison: B.

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Hopkins, P. Lord, W. Waterman, E. Medina, E. Dotson, D. Ambriz, D. Vega, D. Aguiano,

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G. Collier, E. Elias, A. Mendoza, S. Milenewicz, M. Perez, W. Keku, C. Sevier and Doss.

United States District Court
Northern District of California

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3. In order to expedite the resolution of this case, the court orders as follows:
a. No later than sixty days from the date of service, defendants shall file a

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motion for summary judgment or other dispositive motion. The motion shall be supported

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by adequate factual documentation and shall conform in all respects to Federal Rule of

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Civil Procedure 56, and shall include as exhibits all records and incident reports

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stemming from the events at issue. If defendant is of the opinion that this case cannot be

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resolved by summary judgment, she shall so inform the court prior to the date her

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summary judgment motion is due. All papers filed with the court shall be promptly served

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on the plaintiff.

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b. At the time the dispositive motion is served, defendants shall also serve,

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on a separate paper, the appropriate notice or notices required by Rand v. Rowland, 154

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F.3d 952, 953-954 (9th Cir. 1998) (en banc), and Wyatt v. Terhune, 315 F.3d 1108, 1120

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n. 4 (9th Cir. 2003). See Woods v. Carey, 684 F.3d 934, 940-941 (9th Cir. 2012) (Rand

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and Wyatt notices must be given at the time motion for summary judgment or motion to

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dismiss for nonexhaustion is filed, not earlier); Rand at 960 (separate paper requirement).

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c. Plaintiff's opposition to the dispositive motion, if any, shall be filed with

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the court and served upon defendants no later than thirty days from the date the motion

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was served upon him. Plaintiff must read the attached page headed "NOTICE -7

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WA
ARNING," which is pro
w
ovided to hi pursuan to Rand v Rowland, 154 F.3d 9
im
nt
v.
,
952, 953-

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954 (9th Cir. 1998) (en banc), and Klingele v. Eikenberry 849 F.2d 409, 411-12 (9th Cir.
1
b
K
y,

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1988).

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If defen
ndants file a motion fo summary judgment claiming that plaintiff f
or
y
failed to

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exh
haust his available administrative remedies as required by 42 U.S
e
d
S.C. § 1997
7e(a),

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pla
aintiff should take note of the atta
d
e
ached page headed "N
NOTICE -- W
WARNING

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(EX
XHAUSTIO
ON)," which is provided to him as required by Wyatt v. T
d
y
Terhune, 315 F.3d

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1108, 1120 n. 4 (9th Cir. 2003).
.

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United States District Court
Northern District of California

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d. If defendant wishe to file a re
es
eply brief, h shall do so no later than
he
r
fifte days after the opp
een
a
position is served upon her.
s
n
as
e. The mo
otion shall be deemed submitted a of the da the repl brief is
b
ate
ly
due. No hear
ring will be held on the motion un
e
nless the co so orde at a late date.
ourt
ers
er
4. All communica
c
ations by pla
aintiff with t court m
the
must be serv on defe
ved
endant, or

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def
fendant’s counsel onc counsel has been d
c
ce
h
designated, by mailing a true copy of the
y

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document to defendants or defenda
d
s
ants' couns
sel.

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5. Disc
covery may be taken in accordan with the Federal R
y
i
nce
e
Rules of Civ
vil

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Pro
ocedure. No further court order under Fede Rule of Civil Proce
N
u
eral
f
edure 30(a)
)(2) is

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req
quired before the parties may con
nduct disco
overy.

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6. It is plaintiff's responsibilit to prosec
s
r
ty
cute this ca
ase. Plaintiff must kee the court
ep
t

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info
ormed of any change of address by filing a s
separate pa
aper with th clerk hea
he
aded

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“No
otice of Cha
ange of Address.” He also must comply wit the court orders in a timely
e
th
t's
n

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fas
shion. Failu to do so may resul in the dism
ure
o
lt
missal of th action fo failure to prosecute
his
or

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pursuant to Federal Rule of Civil Pr
e
rocedure 41
1(b).

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IT IS SO ORDER
S
RED.

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Da
ated: September 22, 20
016

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PH
HYLLIS J. H
HAMILTON
N
Un
nited States District Ju
s
udge

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ndoak.cand.circ9
9.dcn\data\users\PJHALL\_psp\2
2015\2015_05373
3_Trevino_v_Do
otson_(PSP)\15-c
cv-05373-PJH-se
erve.docx

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NOTICE -- WARNING (SUMMARY JUDGMENT)
If defendants move for summary judgment, they are seeking to have your case

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dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil

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Procedure will, if granted, end your case.

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Rule 56 tells you what you must do in order to oppose a motion for summary

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judgment. Generally, summary judgment must be granted when there is no genuine issue

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of material fact--that is, if there is no real dispute about any fact that would affect the

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result of your case, the party who asked for summary judgment is entitled to judgment as

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a matter of law, which will end your case. When a party you are suing makes a motion
for summary judgment that is properly supported by declarations (or other sworn

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United States District Court
Northern District of California

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testimony), you cannot simply rely on what your complaint says. Instead, you must set

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out specific facts in declarations, depositions, answers to interrogatories, or authenticated

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documents, as provided in Rule 56(e), that contradict the facts shown in the defendant’s

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declarations and documents and show that there is a genuine issue of material fact for

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trial. If you do not submit your own evidence in opposition, summary judgment, if

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appropriate, may be entered against you. If summary judgment is granted, your case will

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be dismissed and there will be no trial.

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NOTICE -- WARNING (EXHAUSTION)
If defendants file a motion for summary judgment for failure to exhaust, they are

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seeking to have your case dismissed. If the motion is granted it will end your case.

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You have the right to present any evidence you may have which tends to show that you

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did exhaust your administrative remedies. Such evidence may be in the form of

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declarations (statements signed under penalty of perjury) or authenticated documents,

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that is, documents accompanied by a declaration showing where they came from and
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why they are authentic, or other sworn papers, such as answers to interrogatories or

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depositions. If defendants file a motion for summary judgment for failure to exhaust and it

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is granted, your case will be dismissed and there will be no trial.
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UNITED STATES D
D
DISTRICT C
COURT

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NORTHER DISTRIC OF CALI
RN
CT
IFORNIA

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ROBERT TR
REVINO,

Case No. 1
15-cv-05373
3-PJH

Plaintiff,
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v.

CERTIFIC
CATE OF S
SERVICE

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E. DOTSON, et al.,
s.
Defendants

United States District Court
Northern District of California

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I, the un
ndersigned, hereby certify that I am an employe in the Offi of the Clerk, U.S.
ee
ice
Dis
strict Court, Northern Di
istrict of Cal
lifornia.
That on September 22, 2016, I SERVED a true and cor
n
rrect copy(ie of the atta
es)
ached, by
pla
acing said co
opy(ies) in a postage paid envelope a
d
addressed to the person(s hereinafte listed, by
s)
er
dep
positing said envelope in the U.S. Mail, or by pla
d
n
M
acing said co
opy(ies) into an inter-off delivery
o
ffice
y
rec
ceptacle loca in the Cl
ated
lerk's office.
.

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Robert Trevino ID: J-6436
67
Sal
linas Valley State Prison D4-#130L
n
P.O Box 1050
O.
0
Sol
ledad, CA 93960

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ated: Septem
mber 22, 2016
6
Da

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Su
usan Y. Soon
ng
Cl
lerk, United States Distr Court
d
rict
By
y:_________
___________
_______
N
Nichole Peric Deputy Cle to the
c,
erk
H
Honorable PH
HYLLIS J. H
HAMILTON
N

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