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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ROBERT TREVINO, Plaintiff, 8 9 10 United States District Court Northern District of California 11 Case No.15-cv-05373-PJH ORDER OF SERVICE v. E. DOTSON, et al., Defendants. Re: Dkt. No. 20 12 13 Plaintiff, a state prisoner, filed a pro se civil rights complaint under 42 U.S.C. § 14 1983. The first amended complaint was dismissed with leave to amend and plaintiff has 15 filed a second amended complaint. DISCUSSION 16 17 STANDARD OF REVIEW 18 Federal courts must engage in a preliminary screening of cases in which prisoners 19 seek redress from a governmental entity or officer or employee of a governmental entity. 20 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and 21 dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief 22 may be granted, or seek monetary relief from a defendant who is immune from such 23 relief. Id. at 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v. 24 Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 25 Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement 26 of the claim showing that the pleader is entitled to relief." "Specific facts are not 27 necessary; the statement need only '"give the defendant fair notice of what the . . . . claim 28 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 2 factual allegations, . . . a plaintiff's obligation to provide the 'grounds’ of his 'entitle[ment] 3 to relief' requires more than labels and conclusions, and a formulaic recitation of the 4 elements of a cause of action will not do. . . . Factual allegations must be enough to 5 raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 6 U.S. 544, 555 (2007) (citations omitted). A complaint must proffer "enough facts to state 7 a claim to relief that is plausible on its face." Id. at 570. The United States Supreme 8 Court has recently explained the “plausible on its face” standard of Twombly: “While legal 9 conclusions can provide the framework of a complaint, they must be supported by factual 10 allegations. When there are well-pleaded factual allegations, a court should assume their 11 United States District Court Northern District of California 1 veracity and then determine whether they plausibly give rise to an entitlement to relief.” 12 Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 13 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 14 elements: (1) that a right secured by the Constitution or laws of the United States was 15 violated, and (2) that the alleged deprivation was committed by a person acting under the 16 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 17 LEGAL CLAIMS 18 Plaintiff was found guilty of a prison disciplinary violation for assault on another 19 inmate with a weapon capable of causing serious physical injury. The disciplinary finding 20 arose from a July 15, 2011, incident where plaintiff fought with another inmate. Plaintiff 21 admits that he fought with the other inmate but denies using a weapon. He presents four 22 causes of action. He argues that 1) his due process rights were violated with respect to 23 the disciplinary hearing; 2) defendants engaged in a conspiracy to frame him and find him 24 guilty; 3) several defendants framed him in retaliation for a previously filed civil rights 25 action; and 4) his inmate appeals were improperly denied and he was denied access to 26 the courts. Second Amended Complaint (“SAC”) at ¶¶ 62-117. 27 1. Due Process 28 Interests protected by the Due Process Clause may arise from two sources: the 2 1 Due Process Clause itself and laws of the states. See Meachum v. Fano, 427 U.S. 215, 2 223-27 (1976). Changes in conditions so severe as to affect the sentence imposed in an 3 unexpected manner implicate the Due Process Clause itself, whether or not they are 4 authorized by state law. See Sandin v. Conner, 515 U.S. 472, 484 (1995). Deprivations 5 authorized by state law that are less severe or more closely related to the expected terms 6 of confinement may also amount to deprivations of a procedurally protected liberty 7 interest, provided that (1) state statutes or regulations narrowly restrict the power of 8 prison officials to impose the deprivation, i.e., give the inmate a kind of right to avoid it, 9 and (2) the liberty in question is one of "real substance." See id. at 477-87. 10 Allegations by a prisoner that he was denied due process in conjunction with a United States District Court Northern District of California 11 disciplinary proceeding do not present a constitutionally cognizable claim, however, 12 unless the deprivation suffered is one of "real substance" as defined in Sandin. "Real 13 substance" will generally be limited to freedom from (1) restraint that imposes "atypical 14 and significant hardship on the inmate in relation to the ordinary incidents of prison life," 15 id. at 484 or (2) state action that "will inevitably affect the duration of [a] sentence," id. at 16 487. In determining whether a restraint is an “atypical and significant hardship,” Sandin 17 suggests that courts should consider whether the challenged condition mirrored the 18 conditions imposed on inmates in administrative segregation and protective custody, and 19 thus comported with the prison’s discretionary authority; the duration of the condition; the 20 degree of restraint imposed; and whether the discipline will invariably affect the duration 21 of the prisoner's sentence. See Serrano v. Francis, 345 F.3d 1071, 1078 (9th Cir. 2003). 22 Prisoners retain their right to due process subject to the restrictions imposed by 23 the nature of the penal system. See Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Thus 24 although prison disciplinary proceedings are not part of a criminal prosecution and the full 25 panoply of rights due a defendant in such proceedings does not apply, where serious 26 rules violations are alleged and the sanctions to be applied implicate state statutes or 27 regulations which narrowly restrict the power of prison officials to impose the sanctions 28 and the sanctions are severe, the Due Process Clause requires certain minimum 3 1 2 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 4 charges and to enable him to marshal the facts and prepare a defense." Wolff, 418 U.S. 5 at 564. Second, "[a]t least a brief period of time after the notice, no less than 24 hours, 6 should be allowed to the inmate to prepare for the appearance before the [disciplinary 7 committee]." Id. Third, "there must be a 'written statement by the factfinders as to the 8 evidence relied on and reasons' for the disciplinary action." Id. (quoting Morrissey v. 9 Brewer, 408 U.S. 471, 489 (1972)). Fourth, "the inmate facing disciplinary proceedings 10 should be allowed to call witnesses and present documentary evidence in his defense 11 United States District Court Northern District of California 3 when permitting him to do so will not be unduly hazardous to institutional safety or 12 correctional goals." Id. at 566; Fifth, "[w]here an illiterate inmate is involved . . . or 13 [where] the complexity of the issue makes it unlikely that the inmate will be able to collect 14 and present the evidence necessary for an adequate comprehension of the case, he 15 should be free to seek the aid of a fellow inmate, or . . . to have adequate substitute aid . . 16 . from the staff or from a[n] . . . inmate designated by the staff." Wolff, 418 U.S. at 570. 17 Plaintiff alleges that defendants Hopkins, Lord and Waterman violated his due 18 process rights with respect to the disciplinary hearing. SAC at ¶ 62. Liberally construed, 19 his allegations are sufficient to proceed against Hopkins, Lord and Waterman. 20 2. Conspiracy 21 A civil conspiracy is a combination of two or more persons who, by some 22 concerted action, intend to accomplish some unlawful objective for the purpose of 23 harming another which results in damage. Gilbrook v. City of Westminster, 177 F.3d 839, 24 856 (9th Cir. 1999). To prove a civil conspiracy, the plaintiff must show that the 25 conspiring parties reached a unity of purpose or common design and understanding, or a 26 meeting of the minds in an unlawful agreement. Id. To be liable, each participant in the 27 conspiracy need not know the exact details of the plan, but each participant must at least 28 share the common objective of the conspiracy. Id. A defendant's knowledge of and 4 1 participation in a conspiracy may be inferred from circumstantial evidence and from 2 evidence of the defendant's actions. Id. at 856-57. 3 Plaintiff argues that prison officials planted the weapon as part of a conspiracy, 4 falsified records and fingerprints, and medical staff falsified injuries on the other inmate 5 and corresponding medical reports. Liberally construed, this claim is sufficient to proceed 6 against defendants Dotson, Ambriz, Vega, Augiana, Collier, Elias, Mendoza, Milenewicz, 7 Perez, Lord, Waterman, Keku, Sevier, Hopkins, Doss and Medina. SAC at ¶¶ 72-73. 8 3. Retaliation 9 "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 11 United States District Court Northern District of California 10 inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) 12 chilled the inmate's exercise of his First Amendment rights, and (5) the action did not 13 reasonably advance a legitimate correctional goal." Rhodes v. Robinson, 408 F.3d 559, 14 567-68 (9th Cir. 2005) (footnote omitted). Accord Pratt v. Rowland, 65 F.3d 802, 806 (9th 15 Cir. 1995) (prisoner suing prison officials under § 1983 for retaliation must allege that he 16 was retaliated against for exercising his constitutional rights and that the retaliatory action 17 did not advance legitimate penological goals, such as preserving institutional order and 18 discipline); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam) (same). 19 Plaintiff states that several defendants engaged in their actions in retaliation for a 20 previously filed civil rights complaint. The fight in this case occurred on July 15, 2011, 21 and the disciplinary hearing occurred on March 21, 2012, both at Salinas Valley State 22 Prison. Plaintiff argues that the retaliation originated in 2005 at the Substance Abuse 23 Treatment Facility when he was set up by prison officials and assaulted by his cellmate. 24 SAC at ¶ 36. He filed a federal civil rights action in 2005. Plaintiff also describes 25 retaliation that occurred at other prisons outside this district in 2005 to 2006 and 2008 to 26 2010. Id. at ¶¶ 37-45. 27 28 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 5 weapon was planted on him and he was illegally found guilty all in retaliation. However, 2 plaintiff has failed to present allegations that these actions were because of his prior civil 3 rights actions. Nor has he described how the disciplinary finding did not reasonably 4 advance a legitimate correctional goal, especially as plaintiff admits he was fighting 5 another inmate. Plaintiff presents no allegations that any of the defendants were even 6 aware of plaintiff’s civil rights actions involving other prisons in different district that were 7 filed many years before. While he has presented allegations of due process violations 8 and conspiracy, which the court will serve, he has failed to present plausible allegations 9 that the acts were in retaliation for any protected conduct. His conclusory allegations are 10 insufficient. Because plaintiff has already been provided several opportunities to amend, 11 United States District Court Northern District of California 1 this claim is dismissed with prejudice. 12 4. Inmate Appeals 13 There is no constitutional right to a prison administrative appeal or grievance 14 system. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams, 855 15 F.2d 639, 640 (9th Cir. 1988). Plaintiff’s claim that his inmate appeals were improperly 16 denied was dismissed with prejudice in the prior screening order. 17 5. Access to the Courts 18 Prisoners have a constitutional right of access to the courts. See Lewis v. Casey, 19 518 U.S. 343, 350 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977). To establish a 20 claim for any violation of the right of access to the courts, the prisoner must prove that 21 there was an inadequacy in the prison's legal access program that caused him an actual 22 injury. See Lewis, 518 U.S. at 350-55. To prove an actual injury, the prisoner must show 23 that the inadequacy in the prison's program hindered his efforts to pursue a non-frivolous 24 claim concerning his conviction or conditions of confinement. See id. at 354-55 25 Plaintiff argues that he was denied access to the courts with respect to inmate 26 appeals and state and federal cases. Liberally construed, this claim is sufficient to 27 proceed against defendant Medina with respect to denial of access to the courts for his 28 cases concerning his conviction or conditions of confinement. SAC at ¶ 97. 6 CONCLUSION 1 2 1. Plaintiff’s motion to file a lengthy amended complaint (Docket No. 20) is 3 GRANTED and the court has considered the second amended complaint. Plaintiff’s 4 claims regarding retaliation and the denial of inmate appeals are dismissed with prejudice 5 for the reasons set forth above. The remaining claims continue as described above. 6 2. The clerk shall issue a summons and the United States Marshal shall serve, 7 without prepayment of fees, copies of the second amended complaint with attachments 8 and copies of this order on the following defendants at Salinas Valley State Prison: B. 9 Hopkins, P. Lord, W. Waterman, E. Medina, E. Dotson, D. Ambriz, D. Vega, D. Aguiano, 10 G. Collier, E. Elias, A. Mendoza, S. Milenewicz, M. Perez, W. Keku, C. Sevier and Doss. United States District Court Northern District of California 11 12 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 13 motion for summary judgment or other dispositive motion. The motion shall be supported 14 by adequate factual documentation and shall conform in all respects to Federal Rule of 15 Civil Procedure 56, and shall include as exhibits all records and incident reports 16 stemming from the events at issue. If defendant is of the opinion that this case cannot be 17 resolved by summary judgment, she shall so inform the court prior to the date her 18 summary judgment motion is due. All papers filed with the court shall be promptly served 19 on the plaintiff. 20 b. At the time the dispositive motion is served, defendants shall also serve, 21 on a separate paper, the appropriate notice or notices required by Rand v. Rowland, 154 22 F.3d 952, 953-954 (9th Cir. 1998) (en banc), and Wyatt v. Terhune, 315 F.3d 1108, 1120 23 n. 4 (9th Cir. 2003). See Woods v. Carey, 684 F.3d 934, 940-941 (9th Cir. 2012) (Rand 24 and Wyatt notices must be given at the time motion for summary judgment or motion to 25 dismiss for nonexhaustion is filed, not earlier); Rand at 960 (separate paper requirement). 26 c. Plaintiff's opposition to the dispositive motion, if any, shall be filed with 27 the court and served upon defendants no later than thirty days from the date the motion 28 was served upon him. Plaintiff must read the attached page headed "NOTICE -7 1 WA ARNING," which is pro w ovided to hi pursuan to Rand v Rowland, 154 F.3d 9 im nt v. , 952, 953- 2 954 (9th Cir. 1998) (en banc), and Klingele v. Eikenberry 849 F.2d 409, 411-12 (9th Cir. 1 b K y, 3 1988). 4 If defen ndants file a motion fo summary judgment claiming that plaintiff f or y failed to 5 exh haust his available administrative remedies as required by 42 U.S e d S.C. § 1997 7e(a), 6 pla aintiff should take note of the atta d e ached page headed "N NOTICE -- W WARNING 7 (EX XHAUSTIO ON)," which is provided to him as required by Wyatt v. T d y Terhune, 315 F.3d 8 1108, 1120 n. 4 (9th Cir. 2003). . 9 10 United States District Court Northern District of California 11 12 13 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 14 def fendant’s counsel onc counsel has been d c ce h designated, by mailing a true copy of the y 15 document to defendants or defenda d s ants' couns sel. 16 5. Disc covery may be taken in accordan with the Federal R y i nce e Rules of Civ vil 17 Pro ocedure. No further court order under Fede Rule of Civil Proce N u eral f edure 30(a) )(2) is 18 req quired before the parties may con nduct disco overy. 19 6. It is plaintiff's responsibilit to prosec s r ty cute this ca ase. Plaintiff must kee the court ep t 20 info ormed of any change of address by filing a s separate pa aper with th clerk hea he aded 21 “No otice of Cha ange of Address.” He also must comply wit the court orders in a timely e th t's n 22 fas shion. Failu to do so may resul in the dism ure o lt missal of th action fo failure to prosecute his or 23 pursuant to Federal Rule of Civil Pr e rocedure 41 1(b). 24 IT IS SO ORDER S RED. 25 Da ated: September 22, 20 016 26 PH HYLLIS J. H HAMILTON N Un nited States District Ju s udge 27 28 \\can 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 8 1 2 NOTICE -- WARNING (SUMMARY JUDGMENT) If defendants move for summary judgment, they are seeking to have your case 3 dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil 4 Procedure will, if granted, end your case. 5 Rule 56 tells you what you must do in order to oppose a motion for summary 6 judgment. Generally, summary judgment must be granted when there is no genuine issue 7 of material fact--that is, if there is no real dispute about any fact that would affect the 8 result of your case, the party who asked for summary judgment is entitled to judgment as 9 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 11 United States District Court Northern District of California 10 testimony), you cannot simply rely on what your complaint says. Instead, you must set 12 out specific facts in declarations, depositions, answers to interrogatories, or authenticated 13 documents, as provided in Rule 56(e), that contradict the facts shown in the defendant’s 14 declarations and documents and show that there is a genuine issue of material fact for 15 trial. If you do not submit your own evidence in opposition, summary judgment, if 16 appropriate, may be entered against you. If summary judgment is granted, your case will 17 be dismissed and there will be no trial. 18 19 NOTICE -- WARNING (EXHAUSTION) If defendants file a motion for summary judgment for failure to exhaust, they are 20 seeking to have your case dismissed. If the motion is granted it will end your case. 21 You have the right to present any evidence you may have which tends to show that you 22 did exhaust your administrative remedies. Such evidence may be in the form of 23 declarations (statements signed under penalty of perjury) or authenticated documents, 24 that is, documents accompanied by a declaration showing where they came from and 25 26 why they are authentic, or other sworn papers, such as answers to interrogatories or 27 depositions. If defendants file a motion for summary judgment for failure to exhaust and it 28 is granted, your case will be dismissed and there will be no trial. 9 1 2 3 4 UNITED STATES D D DISTRICT C COURT 5 NORTHER DISTRIC OF CALI RN CT IFORNIA 6 7 ROBERT TR REVINO, Case No. 1 15-cv-05373 3-PJH Plaintiff, 8 v. CERTIFIC CATE OF S SERVICE 9 10 E. DOTSON, et al., s. Defendants United States District Court Northern District of California 11 12 13 14 15 16 17 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. . 18 19 20 Robert Trevino ID: J-6436 67 Sal linas Valley State Prison D4-#130L n P.O Box 1050 O. 0 Sol ledad, CA 93960 21 22 ated: Septem mber 22, 2016 6 Da 23 24 25 26 27 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 28 10 0

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