Williams v. Hazel et al

Filing 35

ORDER by Judge Haywood S. Gilliam, Jr. GRANTING ( 10 , 25 ) MOTIONS TO DISMISS (Attachments: # 1 Certificate/Proof of Service)(ndrS, COURT STAFF) (Filed on 9/25/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 STEPHEN JEROME WILLIAMS, Plaintiff, 8 9 v. 10 ORDER GRANTING MOTIONS TO DISMISS E HAZEL, et al., Re: Dkt. Nos. 10, 25 Defendants. 11 United States District Court Northern District of California Case No. 16-cv-01136-HSG 12 13 Plaintiff, a California prisoner currently incarcerated at Ironwood State Prison, filed this 14 pro se civil rights action under 42 U.S.C. § 1983. The Court found that, liberally construed, the 15 amended complaint stated a cognizable claim for denial of access to the courts against correctional 16 officers Pelican Bay State Prison (“PBSP”) Transportation Sergeant Hazel, PBSP Sergeant Davis, 17 PBSP Sergeant Chandler, PBSP Associate Government Program Analyst Bramucci, and Pleasant 18 Valley State Prison (“PVSP”) Associate Government Program Analyst Vierra, and a cognizable 19 claim for denial of due process against Sergeant Hazel. Dkt. No. 9 at 4–5. Now before the Court 20 are two separate motions to dismiss, one filed by Sergeant Davis, Sergeant Chandler, Analyst 21 Bramucci, and Analyst Vierra (Dkt. No. 10), and the other filed by Sergeant Hazel (Dkt. No. 25). 22 Defendants argue that they are entitled to dismissal of the amended complaint pursuant to Federal 23 Rule of Civil Procedure 12(b)(6) because Plaintiff’s complaint fails to state a claim or, in the 24 alternative, that Defendants are entitled to qualified immunity. Dkt. Nos. 10 and 25. Plaintiff has 25 filed oppositions to both motions (Dkt. Nos. 17 and 29), and Defendants have filed replies in 26 support of their respective motions (Dkt. Nos. 20 and 30). For the reasons set forth below, the 27 Court GRANTS the motions to dismiss. 28 // BACKGROUND 1 According to the amended complaint, Plaintiff’s constitutional right to access the courts 2 3 was violated when Defendants failed to timely deliver his property, which included a court filing, 4 thereby causing him to miss a court deadline in an unrelated medical malpractice case. Plaintiff 5 alleges that his due process rights were violated when Sergeant Hazel deprived him of his legal 6 materials without a hearing. 7 A. On September 18, 2008, while Plaintiff was incarcerated at Calipatria State Prison, he 8 9 Underlying Medical Malpractice Case underwent oral surgery to remove his four wisdom teeth. Dkt. No. 7-1 at 11. In 2013, Plaintiff learned that the 2008 dental surgery had not been completed properly, resulting in tooth, bone, and 11 United States District Court Northern District of California 10 gum decay. Id. X-rays taken in February and June 2013 indicated that a root tip had been 12 improperly left in Plaintiff’s gums during the 2008 surgery. Id. On August 28, 2013, Plaintiff had 13 corrective oral surgery and sustained further injury, pain and suffering. Id. at 16. On September 12, 2013, in preparation for potential litigation and to seek compensation for 14 15 his injuries, Plaintiff requested his dental records. Dkt. No. 7-1 at 16. Plaintiff received these 16 records on January 14, 2014. Id. On February 20, 2014, Plaintiff filed an application with the 17 California Victim Compensation and Government Claim Board (“VCGCB”) regarding the 2008 18 oral surgery, alleging that California Correctional Health Care Services (“CCHCS”) staff had 19 committed medical and dental malpractice, and seeking leave to present a late tort claim. Id. at 20 14–19. On May 15, 2014, the VCGCB denied Plaintiff leave to file a late tort claim. Id. at 8. 21 On or about December 2014, Plaintiff filed a civil action in Monterey County Superior 22 Court, pursuant to Section 946.6 of the California Government Code, requesting relief from the 23 claim presentation requirement set forth in the California Government Claims Act (“CGCA”).1 24 Dkt. No. 7-1 at 21–23. On June 12, 2015, the Monterey County Superior Court denied Plaintiff’s 25 1 26 27 Before a person can sue a public entity or public employee for money damages for actions taken within the scope of the person’s employment, the CGCA requires the person to first present the claim to the public entity. See Cal. Gov’t. Code §§ 810 et seq.; Willis v. Reddin, 418 F.2d 702, 704 (9th Cir. 1969); Cal. v. Sup. Ct. (Bodde), 32 Cal. 4th 1234, 1240–44 (Cal. 2004). 28 2 1 petition for relief. Id. at 7-1 at 3–4. Judgment was entered on July 1, 2015. Id. at 4. On July 5, 2 2015, while Plaintiff was housed at Salinas Valley State Prison (“SVSP”), Plaintiff received the 3 judgment and order denying his petition for relief. Dkt. No. 7 at 3–4. Plaintiff mistakenly 4 believed that the deadline to appeal this denial was July 12, 2015, whereas the correct deadline 5 was August 12, 2015. Id. at 4. 6 B. 7 Delay in Receiving Notice of Appeal On July 6, 2015, Plaintiff prepared a notice of appeal (“NOA”), dated July 6, 2015, and 8 SVSP Officer Gonzalez made four copies of the NOA. Id. Plaintiff intended to place the NOA in 9 the outgoing mail later that day. Id. Later that morning, SVSP Officer White informed Plaintiff that he was being transferred to PBSP within the hour and instructed Plaintiff to pack up his 11 United States District Court Northern District of California 10 property. Id. Plaintiff informed Officer White that he needed to mail out certain legal documents 12 that evening to comply with a court deadline. Id. Officer White informed Plaintiff that he would 13 arrive at PBSP within two days and that Plaintiff could mail out his legal documents at that time. 14 Id. En route to PBSP, Plaintiff had a layover day at PVSP. 15 Upon arriving at PBSP, Plaintiff learned that his property had not arrived with him. Dkt. 16 No. 7 at 4. Sergeant Hazel informed Plaintiff that because Plaintiff had too many boxes of 17 property, Plaintiff’s property was still at PVSP and would arrive within a couple of weeks, maybe 18 a month. Id. Plaintiff informed Sergeant Hazel that his property contained legal documents that 19 had to be filed to meet a court deadline. Id. Sergeant Hazel and other PBSP correctional officers 20 advised Plaintiff to file an appeal. Id. 21 On July 8, 2015, Plaintiff submitted a CDCR Form 22 Request for Item to Sergeant Davis, 22 requesting that his property be delivered immediately so that Plaintiff could comply with a July 23 12, 2015 court deadline. Dkt. No. 7 at 4 and Dkt. No. 7-1 at 28. Sergeant Chandler responded to 24 the CDCR Form 22, and informed Plaintiff that PBSP had not received any of Plaintiff’s property 25 and directed Plaintiff to submit a missing property form to his prior facility. Id. 26 On July 9, 2015, the following day, Plaintiff submitted CDCR Form 602 Inmate Appeal, 27 PBSP No. 0-15-01713, to Analyst Bramucci requesting that his property be returned to him 28 immediately so that he could comply with a July 12, 2015 court deadline, and requesting that 3 1 PBSP provide him with an affidavit stating that he did not receive this property on July 8, 2015, 2 which rendered him unable to meet the court’s July 12, 2015 deadline for filing an appeal. Dkt. 3 No. 7 at 4 and Dkt. No. 7-1 at 31–33. On July 10, 2015, Analyst Bramucci forwarded grievance 4 PBSP No. 0-15-01713 to the appeals coordinator at PVSP, who assigned it the log number PVSP 5 No. 0-15-00960. Dkt. No. 7 at 4 and Dkt. No. 7-1 at 30–33. 6 7 8 9 On July 15, 2015, Plaintiff’s property arrived at PBSP but was not delivered to him. Dkt. No. 7 at 7. On July 21, 2015, Analyst J. Vierra cancelled grievance PBSP No. 0-15-01713 / PVSP No. 0-15-00960, noting that the grievance was resolved because, on July 20, 2015, Sergeant Carr had informed Analyst Vierra that Plaintiff’s property had been sent to PBSP via Golden State 11 United States District Court Northern District of California 10 Overnight on July 14, 2015. Dkt. No. 7 at 5 and Dkt. No. 7-1 at 36. Plaintiff received Analyst 12 Vierra’s notice of cancellation on August 2, 2015. Dkt. No. 7 at 5. That same day, Plaintiff 13 appealed the cancellation because Plaintiff still had not received his property. Id. In his appeal, 14 Plaintiff stated that the court deadline had passed and that CDCR officials had failed to provide 15 him with an affidavit to file with the court to excuse his late-filing. Dkt. No. 7-1 at 32. Plaintiff 16 stated that his case was now time-barred. Id. 17 On August 3, 2015, Analyst Bramucci forwarded Plaintiff’s appeal back to PVSP. Dkt. 18 No. 7 at 5 and No. 7-1 at 38. On August 13, 2015, Analyst Vierra cancelled the appeal, and 19 directed Plaintiff to appeal the cancellation of the grievance by filing a separate grievance. Dkt. 20 No. 7 at 5 and Dkt. No. 7-1 at 40. 21 On August 25, 2015, Plaintiff submitted a second CDCR Form 22 Request for Service to 22 Sergeant Davis, requesting that his property be delivered to him. Dkt. No. 7 at 6 and Dkt. No. 7-1 23 at 5. In this Form 22, Plaintiff stated that the court deadline had passed. Dkt. No. 7-1 at 5. On 24 August 26, 2015, Sergeant Chandler responded to the Form 22 stating that PBSP was “working on 25 all property” and unable to provide an estimate as to when Plaintiff could expect his property. Id. 26 That same day, Plaintiff filed a new CDCR Form 602 Inmate Appeal, No. PVSP-0-15-01125, with 27 PVSP correctional officials, again requesting the return of his property. Dkt. No. 7 at 5 and Dkt. 28 No. 7-1 at 42. In this Form 602, Plaintiff stated that he had missed a court deadline and been 4 1 denied access to the courts. Dkt. No. 7-1 at 42. On September 15, 2015, Sergeant Davis delivered Plaintiff’s property to him. Dkt. No. 7 2 3 at 6. On September 21, 2015, Analyst Vierra interviewed Plaintiff by telephone regarding 4 5 grievance PVSP No. 0-15-01125. Dkt. No. 7 at 5. On September 22, 2015, grievance PVSP No. 6 0-15-01125 was granted in part at the second level of review in that PVSP acknowledged that it 7 had failed to address Plaintiff’s request for an affidavit regarding the missing property. Dkt. No. 7 8 at 5 and 46–47. The second level decision reassigned grievance PBSP No. 0-15-01713 / PVSP 9 No. 0-15-00960 back to the first level of review. Id. Plaintiff appealed this decision to the director’s level of review and on November 3, 2015, Office of Appeals Chief Voong determined 11 United States District Court Northern District of California 10 that there was no issue to address relative to PVSP No. 0-15-01125 because the second level 12 decision allowed Plaintiff to resubmit grievance PBSP No. 0-15-01713 / PVSP No. 0-15-00960. 13 Dkt. No. 7 at 5 and 48. Plaintiff was informed that if he was dissatisfied with the second level 14 review decision with respect to grievance PBSP No. 0-15-01713 / PVSP No. 0-15-00960, he could 15 submit that grievance for third level review. Dkt. No. 7 at 5 and 48. 16 C. Plaintiff’s Additional Allegations 17 Plaintiff makes the following additional allegations. 18 Plaintiff alleges that Sergeant Hazel made the personal decision to leave Plaintiff’s 19 property at PVSP and not place it on the bus that transported Plaintiff from PVSP to PBSP, and 20 that Sergeant Hazel failed to take any steps to locate, obtain and issue Plaintiff’s property to 21 Plaintiff after learning that Plaintiff required his property to meet a court deadline. Dkt. No. 7 at 6. 22 Plaintiff alleges that Sergeant Davis and Sergeant Chandler, who both are directly 23 responsible for issuing property to inmates upon their arrival at PBSP, failed to locate, obtain and 24 issue Plaintiff’s property to him despite knowing that he required his property to meet a court 25 deadline. Dkt. No. 7 at 7–8. 26 Finally, Plaintiff alleges that Analysts Bramucci and Vierra failed to forward Plaintiff’s 27 inmate appeal concerning his property and court deadline to the appropriate staff at PBSP, and 28 failed to notify the appropriate PBSP staff that Plaintiff’s property had arrived at PBSP on July 15, 5 1 2015, and failed to instruct the appropriate PBSP staff to immediately release Plaintiff’s property 2 to him. Dkt. No. 7 at 8–9. DISCUSSION 3 4 A. Standard of Review Federal Rule of Civil Procedure 12(b)(6) permits a defendant to move to dismiss on the 5 ground that there is a “failure to state a claim upon which relief may be granted.” Fed. R. Civ. P. 7 12(b)(6). A motion to dismiss should be granted if a plaintiff fails to proffer “enough facts to state 8 a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 9 (2007). The court “must accept as true all of the factual allegations contained in the complaint,” 10 Erickson v. Pardus, 551 U.S. 89, 94 (2007), and must construe the alleged facts in the light most 11 United States District Court Northern District of California 6 favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The Court must 12 construe pro se pleadings liberally. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). The court 13 need not accept as true allegations that are conclusory, unwarranted deductions of fact, or 14 unreasonable inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.), 15 amended, 275 F.3d 1187 (9th Cir. 2001). As a general rule, “a district court may not consider any material beyond the pleadings in 16 17 ruling on a Rule 12(b)(6) motion.” Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994), overruled 18 on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119, 1125 (9th Cir. 2002) 19 (citation omitted). The Court may, however, consider the following documents without 20 converting a motion to dismiss into a motion for summary judgment: (1) documents whose 21 contents are alleged in or attached to the complaint and whose authenticity no party questions, see 22 Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question, and upon which the 23 complaint necessarily relies, but which are not attached to the complaint, see Lee v. City of Los 24 Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials of which the court 25 may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). 26 B. 27 28 Requests for Judicial Notice Defendants have requested that the Court take judicial notice of sections 3084.1 and 3190 of the California Code of Regulations, title 15, as well as sections 54030.5, 54030.13.1 and 6 1 54100.23.2 of the California Department of Corrections and Rehabilitation (“CDCR”) Department 2 Operations Manual (“DOM”). Dkt. No. 11. Plaintiff seeks to join Defendants’ request for judicial 3 notice, Dkt. No. 17 at 9, and also requests that the Court take judicial notice of sections 14010.19, 4 54010.12.2, 54010.4, 54030.7.1, and 54030.10.2 of the DOM, id. at 10–12 and 28–45. 5 When considering a motion to dismiss, a court does not normally look beyond the 6 complaint in order to avoid converting a motion to dismiss into a motion for summary judgment. 7 Ngoc Nguyen v. Wells Fargo Bank, N.A., 749. F.Supp.2d 1022, 1024 (N.D. Cal. 2010). However, 8 a court may take judicial notice of material that is submitted as part of the complaint or is 9 necessarily relied upon by the complaint, as well as matters of public record. Lee, 250 F.3d at 688–89. Under Federal Rule of Evidence 201(b), a “judicially noticed fact must be one not 11 United States District Court Northern District of California 10 subject to reasonable dispute in that it is either: (1) generally known within the territorial 12 jurisdiction of the trial court; or (2) capable of accurate and ready determination by resort to 13 sources whose accuracy cannot reasonably be questioned.” Courts routinely take judicial notice of 14 state regulations which are readily ascertainable, Bd. of Public Works of Maryland, 426 U.S. 736, 15 742 n. 4 (1976), and routinely take judicial notice of records of state agencies, see City of 16 Sausalito v. O’Neill, 386 F.3d 1186, 1224 n.2 (9th Cir. 2004) (“We may take judicial notice of a 17 record of a state agency not subject to reasonable dispute.”). Accordingly, the Court GRANTS the 18 requests for judicial notice filed by both parties, and takes judicial notice of (1) 15 Cal. Code 19 Regs. §§ 3084.1 and 3190, because they are state regulations which are easily ascertainable; and 20 (2) DOM §§ 14010.19, 54010.12.2, 54030.10.2, 54010.4, 54030.7.1, 54030.5, 54030.13.1, and 21 54100.23.2, as they are matters of public record. 22 C. 23 Access to the Courts Claim The First Amendment right of access to courts guarantees the right to meaningful access to 24 the courts. Silva v. Di Vittorio, 658 F.3d 1090, 1102 (9th Cir. 2011) overruled on other grounds 25 as stated by Richey v. Dahne, 807 F.3d 1202, 1209 n.6 (9th Cir. 2015). The Ninth Circuit has 26 traditionally differentiated between two types of access to court claims: those involving prisoners’ 27 right to affirmative assistance and those involving prisoners’ rights to litigate without active 28 interference. Id. at 1102. 7 A prisoner’s constitutional right to litigation assistance is limited to the tools prisoners 1 2 need in order to attack their sentences, either directly or collaterally, and in order to challenge the 3 conditions of their confinement. Silva, 658 F.3d at 1102 (citing Lewis v. Casey, 518 U.S. at 355). 4 The right to such assistance is limited to the pleading stage. Id. The state is not required to enable 5 the prisoner to discover grievances or to litigate effectively once in court. See Lewis, 518 U.S. at 6 354. 7 In contrast, a prisoner’s constitutional right to litigate without interference encompasses 8 the First Amendment right to petition the government by filing civil actions that have a reasonable 9 basis in law or fact, and extends beyond the pleading stage. Silva, 658 F.3d at 1102. This right does not require prison officials to provide affirmative assistance in the preparation of legal 11 United States District Court Northern District of California 10 papers, but rather forbids states from erecting barriers that impede the right of access of 12 incarcerated persons. Id. The Ninth Circuit therefore has held that “prisoners have a right under 13 the First and Fourteenth Amendments to litigate claims challenging their sentences or the 14 conditions of their confinement to conclusion without active interference by prison officials.” Id. 15 (emphasis in original). 16 17 18 19 20 21 Plaintiff categorizes his First Amendment claim as an “active interference” claim, distinguishing it from an “affirmative assistance” claim: Plaintiff Williams is not alleging that he was denied access to the courts because he was deprived of the required “tools” and “assistance” the Lewis court held to be provided to inmates challenging their convictions or conditions of confinement. Plaintiff Williams alleges he was denied access to the courts because each of the named Defendants intentionally and deliberately “obstructed” him from having “meaningful access to the courts” and “interfered” with his right to “seek redress” and file a “grievance.” 22 Dkt. No. 17 at 19; see also Dkt. No. 29 at 9. The “active interference” claim, as described by 23 Plaintiff, is Defendants’ failure to take particular affirmative steps to track down Plaintiff’s 24 property to ensure Plaintiff met his court deadline. Plaintiff does not allege that Defendants 25 deliberately withheld his property for the purpose of causing him to miss a court deadline. 26 Rather, Plaintiff alleges that Sergeants Chandler and Davis, and Analysts Bramucci and 27 Vierra, failed to do legally required acts that caused the First Amendment violation. See Dkt. No. 28 17 at 11 (alleging that Sergeant Chandler was more concerned with backlog of all inmate property 8 1 than finding Plaintiff’s property), at 13‒14 (alleging that Sergeant Davis failed to direct Sergeant 2 Chandler to locate and deliver Plaintiff’s property), at 15‒16 (alleging that Analysts Bramucci and 3 Vierra failed to assist Plaintiff in resolving his property claim), at 11‒12 (listing CDCR 4 regulations allegedly violated by Sergeants Chandler and Davis), at 14‒17 (listing CDCR 5 regulations allegedly violated by Analysts Bramucci and Vierra). Similarly, Plaintiff argues that 6 Sergeant Hazel caused the First Amendment violation when he decided to leave Plaintiff’s 7 property at PVSP and failed to do legally required acts. Dkt. No. 29 at 7‒9. 8 9 For the reasons set forth below, Court finds that Defendants are entitled to qualified immunity on Plaintiff’s First Amendment claim. 1. 11 United States District Court Northern District of California 10 Qualified Immunity Qualified immunity is an entitlement, provided to government officials in the exercise of 12 their duties, not to stand trial or face the other burdens of litigation. Saucier v. Katz, 533 U.S. 194, 13 200 (2001), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223, 236 (2009). The 14 doctrine of qualified immunity attempts to balance two important and sometimes competing 15 interests — “the need to hold public officials accountable when they exercise power irresponsibly 16 and the need to shield officials from harassment, distraction, and liability when they perform their 17 duties reasonably.” Pearson, 555 U.S. at 231. The doctrine thus intends to take into account the 18 real-world demands on officials in order to allow them to act “swiftly and firmly” in situations 19 where the rules governing their actions are often “voluminous, ambiguous, and contradictory.” 20 Mueller v. Auker, 576 F.3d 979, 993 (9th Cir. 2009). “The purpose of this doctrine is to recognize 21 that holding officials liable for reasonable mistakes might unnecessarily paralyze their ability to 22 make difficult decisions in challenging situations, thus disrupting the effective performance of 23 their public duties.” Id. 24 To determine whether a government official is entitled to qualified immunity, the Court 25 must consider (1) whether the official’s conduct violated a constitutional right, and (2) whether 26 that right was clearly established at the time of the incident. Pearson, 555 U.S. at 232. Courts are 27 not required to address the two qualified immunity issues in any particular order, and instead may 28 “exercise their sound discretion in deciding which of the two prongs of the qualified immunity 9 1 analysis should be addressed first in light of the circumstances in the particular case at hand.” Id. 2 at 236. With respect to the second prong of the qualified immunity analysis, the Supreme Court 3 has recently held that “[a]n officer cannot be said to have violated a clearly established right unless 4 the right’s contours were sufficiently definite that any reasonable official in his shoes would have 5 understood that he was violating it, meaning that existing precedent . . . placed the statutory or 6 constitutional question beyond debate.” City and County of San Francisco, Cal. v. Sheehan, 135 7 S. Ct. 1765, 1774 (2015) (omission in original) (internal quotation marks omitted). This is an 8 “exacting standard” which “gives government officials breathing room to make reasonable but 9 mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate 10 United States District Court Northern District of California 11 the law.” Id. (internal quotation marks omitted). Although it is not necessary that a prior decision rule “the very action in question” 12 unlawful for a right to be clearly established, Anderson v. Creighton, 483 U.S. 635, 640 (1987), 13 the Supreme Court has repeatedly cautioned that courts should not define clearly established law 14 at a high level of generality, see White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam). See also 15 Hamby v. Hammond, 821 F.3d 1085, 1095 (9th Cir. 2016) (plaintiff need not find case with 16 identical facts, but the further afield existing precedent lies the more likely that official’s acts fall 17 within vast zone of conduct that is constitutional). 18 2. 19 Sergeant Davis argues that he is entitled to qualified immunity because he could not have 20 known that he was violating a constitutional right when he processed Plaintiff’s property request 21 without issuing Plaintiff’s property; because there is no clearly established law that an inmate’s 22 right to prosecute a negligence case overrides prison property regulations; and because, to the 23 extent that Sergeant Davis’s actions caused Plaintiff to miss his appeal deadline, Sergeant Davis’s 24 actions were legally reasonable. Dkt. No. 10 at 18–19. 25 Sergeant Davis The Court finds that Sergeant Davis is entitled to qualified immunity because, at the time 26 that Sergeant Davis processed Plaintiff’s property requests, there was no clearly established law 27 that established “beyond debate” that the conduct alleged (accepting Plaintiff’s allegations as true) 28 violated the Constitution. See Tolan v. Cotton, 134 S. Ct. 1861, 1863, 1866 (2014) (“under either 10 prong [of the qualified immunity analysis], courts may not resolve genuine disputes of fact in 2 favor of the party seeking summary judgment”). The only factual allegations in the amended 3 complaint regarding Sergeant Davis are the following: (1) on July 8, 2015, and on August 25, 4 2015, Plaintiff submitted property requests to Sergeant Davis wherein he specified that he needed 5 his property to comply with a July 12, 2015 court deadline; (2) Sergeant Davis forwarded the 6 requests to Sergeant Chandler; and (3) Sergeant Davis did not ensure the timely delivery of 7 Plaintiff’s property. The crux of Plaintiff’s argument is that Sergeant Davis should have ensured 8 him access to the courts by personally locating and delivering Plaintiff’s property. At the time of 9 Sergeant Davis’s alleged actions and inaction, it was not clearly established that a prison officer 10 was required to take the steps Plaintiff alleges he should have taken. Even now, to the Court’s 11 United States District Court Northern District of California 1 knowledge, there is no published Supreme Court or Ninth Circuit law that requires a prison 12 official who knows of a prisoner’s court deadline to take particular affirmative steps to track down 13 the prisoner’s property to assist the prisoner in meeting the deadline. See Brown v. Oregon Dep’t 14 of Corr., 751 F.3d 983, 990 (9th Cir. 2014) (defendants are not liable for violation of right that 15 was not clearly established at time violation occurred). 16 Plaintiff argues that the right to access the court was clearly established by the Supreme 17 Court in Bounds v. Smith, 430 U.S. 817 (1977), and Lewis v. Casey, 518 U.S. 343 (1996). Dkt. 18 No. 17 at 22. But defining the allegedly clearly established right at this level of generality does 19 not comply with the unambiguous instructions of the Supreme Court. See Mullenix v. Luna, 136 20 S. Ct. 305, 308 (2015) (“We have repeatedly told courts . . . not to define clearly established law at 21 a high level of generality. The dispositive question is whether the violative nature of particular 22 conduct is clearly established. This inquiry must be undertaken in light of the specific context of 23 the case, not as a broad general proposition.”). Plaintiff has emphasized that he is alleging an 24 “active interference” claim, Dkt. No. 17 at 19, and neither Bounds nor Lewis addresses the right to 25 litigate without active interference. Bounds established prisoners’ right to affirmative assistance, 26 holding that “the fundamental constitutional right of access to the courts requires prison authorities 27 to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners 28 11 1 with adequate law libraries or adequate assistance from persons trained in the law.” 2 Bounds, 430 2 U.S. at 828. In Lewis, the Supreme Court did not did not speak to a prisoner’s right to litigate 3 without unreasonable interference, but rather limited the right to affirmative assistance to the 4 pleading stage. Silva, 658 F.3d at 1103. It is unclear whether a court may consider binding circuit precedent in determining clearly 5 6 established law. The Ninth Circuit has defined “clearly established law” as Supreme Court and 7 circuit precedent. See Community House, Inc. v. Bieter, 623 F.3d 945, 967 (9th Cir. 2010) (“To 8 determine whether a right was clearly established, a court turns to Supreme Court and Ninth 9 Circuit law existing at the time of the alleged act.”) (citing Osolinski v. Kane, 92 F.3d 934, 936 (9th Cir. 1996)); Boyd v. Benton Cnty., 374 F.3d 773, 781 (9th Cir. 2004) (same). In Hope v. 11 United States District Court Northern District of California 10 Pelzer, 536 U.S. 730 (2002), the Supreme Court relied on circuit precedent in finding that the 12 defendants were entitled to qualified immunity, specifically that the defendants’ conduct violated 13 clearly established law in light of binding circuit precedent. Hope, 536 U.S. at 741–45 (“in light 14 of binding Eleventh Circuit precedent, an Alabama Department of Corrections (ADOC) 15 regulation, and a DOJ report informing the ADOC of the constitutional infirmity in its use of the 16 hitching post, we readily conclude that the respondents' conduct violated “clearly established 17 statutory or constitutional rights of which a reasonable person would have known.”) (citing 18 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).). In recent cases, the Supreme Court has 19 assumed for the sake of argument without explicitly holding that “controlling Court of Appeals’ 20 authority could be a dispositive source of clearly established law,” Reichle v. Howards, 132 S.Ct. 21 2088, 2094 (2012); see also Carroll v. Carman, 135 S.Ct. 348, 350 (2014), but neither of these 22 cases has overruled Hope or called its exclusive reliance on circuit precedent into question. Regardless, circuit precedent also fails to establish that the conduct alleged violated clearly 23 24 established law. The Ninth Circuit did recognize a First Amendment right to access the courts 25 26 27 28 2 The right to affirmative assistance to access to the courts is limited to prisoners’ pursuits of nonfrivolous claims concerning their conviction and non-frivolous § 1983 claims challenging the conditions of their confinement. See Lewis, 518 U.S. at 355. “Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration.” Id. 12 1 2 3 without interference in Silva v. Di Vittorio: This right [to access the courts without interference] does not require prison officials to provide affirmative assistance in the preparation of legal papers, but rather forbids states from “erect[ing] barriers that impede the right of access of incarcerated persons.” 4 Silva, 658 F.3d at 1102. The Ninth Circuit held that this right applied to all civil actions with a 5 reasonable basis in law or fact, and applied beyond the pleading stage. Silva, 658 F.3d at 1102‒ 6 03. However, the First Amendment right recognized in Silva is clearly distinguishable from the 7 instant action in that the defendants in Silva allegedly acted with malicious intent in that they 8 transferred the prisoner between different facilities and seized and withheld his legal files to hinder 9 the prisoner’s ability to litigate pending civil lawsuits. Id. at 1101‒04 (finding that these alleged facts sufficiently stated a First Amendment claim to survive motion to dismiss). Silva is also 11 United States District Court Northern District of California 10 distinguishable in that the inmate-plaintiff was allegedly denied access to the courts because of the 12 defendants’ actions, while in the instant action, it is Defendants’ inaction that Plaintiff alleges 13 caused the constitutional violation. At most, Silva clearly establishes that a prisoner has a right to 14 litigate without prison officials engaging in affirmative, malicious interference. It does not 15 address whether prison officials have an obligation to take affirmative steps to assist a prisoner in 16 meeting his court deadlines by personally undertaking to locate missing property. 17 Plaintiff cites a number of additional cases that he argues clearly establish that Sergeant 18 Davis should have taken affirmative steps to locate and deliver his property, or otherwise assist 19 him in meeting his court deadline. Even assuming that it may look to these cases in determining 20 whether the law was clearly established, the Court disagrees. Plaintiff argues that Williams v. 21 I.C.C. Committee, 812 F. Supp. 1029, 1032 (N.D. Cal. 1992), establishes that the denial of access 22 to legal documents prepared by a pro se inmate constitutes a First Amendment violation. Dkt. No. 23 17 at 19. However, Williams holds only that the allegation that an inmate has been deprived of his 24 legal papers and that this deprivation made him miss a deadline to file an amended complaint 25 states a cognizable First Amendment claim. Williams does not place beyond debate the 26 constitutional question as to whether a prison official’s failure to take particular affirmative steps 27 to personally locate missing property to assist an inmate in meeting his court deadline violates the 28 First Amendment. 13 1 Plaintiff argues that Jackson v. Procunier, 789 F.2d 307 (5th Cir. 1986), also clearly 2 establishes that prison officials must take affirmative steps to assist an inmate in meeting his court 3 deadline. However, similar to Silva, Jackson only establishes that an inmate has a right to be free 4 from deliberate and malicious interference with his access to the courts. The Jackson court found 5 that the allegation that prison officials intentionally delayed the mailing of the inmate’s in forma 6 pauperis filing, thereby causing dismissal of his case, stated a cognizable First Amendment claim 7 at the pleading stage. The Jackson court specified that this holding applied only to intentional 8 conduct, and not to something less than intentional conduct, such as recklessness or gross 9 negligence. Jackson, 789 F.2d at 312. Jackson also does not place beyond debate the constitutional question as to whether a prison official’s failure to take particular affirmative steps 11 United States District Court Northern District of California 10 to personally locate missing property to assist an inmate in meeting his court deadline violates the 12 First Amendment. 13 Plaintiff also argues that Sergeant Davis disregarded and violated clearly established 14 CDCR regulations and therefore acted both unreasonably, citing to Mullenix v. Luna, 136 S. Ct. 15 305, 309 (2015), and incompetently, citing to Malley v. Briggs, 475 U.S. 335, 341 (1986). Dkt. 16 No. 17 at 22–24. In other words, Plaintiff argues that because Sergeant Davis’ actions and 17 inactions violated CDCR regulations, Sergeant Davis is not entitled to qualified immunity because 18 the doctrine of qualified immunity shields officials from civil liability only if their conduct “does 19 not violate clearly established statutory or constitutional rights of which a reasonable person 20 would have known,” Mullenix, 136 S. Ct. at 308, and because qualified immunity “provides ample 21 protection to all but the plainly incompetent or those who knowingly violate the law,” Malley, 475 22 U.S. at 341. To the extent that Plaintiff bases his First Amendment claim on violations of prison 23 regulations, such violations cannot be remedied under § 1983 unless they also violate a federal 24 constitutional or statutory right. See Davis v. Scherer, 468 U.S. 183, 192 (1984) (§ 1983 provides 25 no redress for prison officials’ violation of state prison regulations); see also Nurre v. Whitehead, 26 580 F.3d 1087, 1092 (9th Cir. 2009) (section 1983 claims must be premised on violation of federal 27 constitutional right); Sweaney v. Ada Cnty., Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) (section 28 1983 creates cause of action for violation of federal law); Lovell v. Poway Unified Sch. Dist., 90 14 1 F.3d 367, 370–71 (9th Cir. 1996) (federal and state law claims should not be conflated; to the 2 extent the violation of a state law amounts to a deprivation of a state-created interest that reaches 3 beyond that guaranteed by the federal Constitution, section 1983 offers no redress). “[S]tate 4 officials [do not] lose their immunity by violating the clear command of a statute or regulation—of 5 federal or state law—unless that statute or regulation provides the basis for the cause of action 6 sued upon.” See Davis, 468 U.S. at 194 n.12.3 Accordingly, Sergeant Davis is entitled to qualified immunity, and his motion to dismiss is 7 8 GRANTED. The Court DISMISSES with prejudice the First Amendment claim against Sergeant 9 Davis. 3. 11 United States District Court Northern District of California 10 Sergeant Chandler Sergeant Chandler argues that he is entitled to qualified immunity because he could not 12 have known that his responses to Plaintiff’s property requests would violate Plaintiff’s rights; and 13 because there is no clearly established law that an inmate’s mere contention to a prison official 14 that the inmate has a court deadline gives rises to an affirmative duty. Dkt. No. 10 at 19. Plaintiff 15 argues that Sergeant Chandler’s position as an officer in PBSP Receiving & Release rendered him 16 responsible for issuing Plaintiff his property upon Plaintiff’s request. Dkt. No. 17 at 24. The Court finds that Sergeant Chandler is entitled to qualified immunity because, at the 17 18 time that Sergeant Chandler processed Plaintiff’s property requests, there was no clearly 19 established law that required a prison official who knew of a prisoner’s court deadline to take 20 particular affirmative steps to personally track down the prisoner’s property to assist the prisoner 21 in meeting the deadline. The only factual allegations in the amended complaint regarding 22 Sergeant Chandler are the following: (1) that he responded to Plaintiff’s July 8, 2015 property 23 request by advising Plaintiff that PBSP had not yet received his property and by advising Plaintiff 24 3 25 26 27 28 In addition, in arguing that the regulations imposed a duty to ensure Plaintiff’s access to the courts, Plaintiff’s argument is tantamount to an action for private enforcement of these particular prison regulations. The Court is unaware of any authority for the proposition that a plaintiff has a private right of action to enforce a prison regulation, see Gonzaga University v. Doe, 536 U.S. 273, 283–86 (2002) (basing a claim on an implied private right of action requires a showing that the statute both contains explicit rightscreating terms and manifests an intent to create a private remedy), and Plaintiff offers no authority recognizing such a right of private enforcement. 15 to submit a property request to his prior facility; and (2) that he responded to Plaintiff’s August 25, 2 2015 property request by informing Plaintiff that PBSP was working to resolve the issue and that 3 he was unable to provide an estimate as to when Plaintiff would receive his property. The crux of 4 Plaintiff’s argument is that Sergeant Chandler should have ensured him access to the courts by 5 personally locating and delivering Plaintiff’s property. As discussed above, at the time of 6 Sergeant Chandler’s actions or inaction, there was no published Supreme Court or Ninth Circuit 7 law requiring a prison official who knew of a prisoner’s court deadline to take particular 8 affirmative steps to track down the prisoner’s property to assist the prisoner in meeting the 9 deadline. See Brown, 751 F.3d at 990. Accordingly, Sergeant Chandler is entitled to qualified 10 immunity, and his motion to dismiss is GRANTED. The Court DISMISSES with prejudice the 11 United States District Court Northern District of California 1 First Amendment claim against Sergeant Chandler. 12 4. 13 Analyst Bramucci argues that she is entitled to qualified immunity because her actions 14 were based on the procedures for reviewing administrative grievances, and because there is no 15 clearly established law that an inmate’s contention to a prison official that the inmate has a court 16 deadline gives rise to an affirmative duty to override administrative grievance procedures. Dkt. 17 No. 10 at 19–20. Plaintiff argues that Analyst Bramucci’s actions violated the procedures for 18 reviewing administrative grievances when she failed to process his appeal of the cancellation of 19 his inmate appeal at PBSP and instead forwarded it to PVSP; and when she failed to instruct PBSP 20 Receiving and Release personnel to issue Plaintiff’s property. Dkt. No. 17 at 25–26. 21 Analyst Bramucci The relevant allegation in the amended complaint regarding Analyst Bramucci is that 22 when, on August 2, 2015, Plaintiff submitted an appeal of Analyst Vierra’s cancellation of 23 Plaintiff’s PVSP grievance and complained that his court deadline had passed and that CDCR 24 officials had not provided him an affidavit to excuse the late filing, Analyst Bramucci forwarded 25 the grievance back to PVSP even though Plaintiff’s property was at PBSP. Here, Plaintiff 26 informed Analyst Bramucci that he had missed a deadline, not that he had a pending deadline. 27 The crux of Plaintiff’s argument is that his right to access the courts required Analyst Bramucci to 28 personally locate his legal documents after the filing deadline. 16 1 The Court finds that Analyst Bramucci is entitled to qualified immunity because, at the 2 time that Analyst Bramucci processed Plaintiff’s grievances and appeals, there was no clearly 3 established law that either (1) required a prison official to personally take particular affirmative 4 steps to track down a prisoner’s legal property to assist the prisoner in meeting court deadlines, or 5 (2) required a prison official to personally take particular affirmative steps to locate and deliver a 6 prisoner’s legal property where the court deadline had passed. As discussed supra, while there is 7 a clearly established First Amendment right to access the courts without active interference, there 8 is no clearly established companion right to affirmative assistance from prison officials to meet 9 court deadlines. Similarly, there is no clearly established companion right to affirmative assistance from prison officials to locate and deliver legal documents needed for a court deadline 11 United States District Court Northern District of California 10 that has already passed. 12 Accordingly, Analyst Bramucci is entitled to qualified immunity, and her motion to 13 dismiss is GRANTED. The Court DISMISSES with prejudice the First Amendment claim against 14 Analyst Bramucci. 15 5. Analyst Vierra 16 Analyst Vierra argues that she is entitled to qualified immunity because her actions in 17 addressing Plaintiff’s grievances did not violate a constitutional right of which a reasonable person 18 should have known. Dkt. No. 10 at 20. Plaintiff argues that Analyst Vierra violated prison rules 19 and regulations when she failed to forward Plaintiff’s property appeal to PBSP after she learned 20 that Plaintiff’s property had arrived at PBSP; when she failed to instruct PBSP grievance analysts 21 to timely issue his property; and when she canceled Plaintiff’s property appeal instead of 22 instructing Plaintiff to resubmit the appeal to the PBSP Appeals Coordinator for second level 23 review. Dkt. No. 17 at 26–27. 24 The relevant allegations in the amended complaint regarding Analyst Vierra are the 25 following: (1) that she learned on July 20, 2015 that Plaintiff’s property had arrived at PBSP and 26 cancelled Plaintiff’s grievance on July 21, 2015, but failed to instruct PBSP prison officials to 27 timely deliver his property; and (2) that she cancelled Plaintiff’s appeal on August 13, 2015. Here, 28 Plaintiff informed Analyst Vierra that his filing deadline had passed on July 12, 2015. The crux of 17 1 Plaintiff’s argument is that his right to access the courts required Analyst Vierra to personally 2 locate his legal documents after the filing deadline. 3 The Court finds that Analyst Vierra is entitled to qualified immunity because, at the time 4 that Analyst Vierra processed Plaintiff’s grievances and appeals, there was no clearly established 5 law that either (1) required a prison official to personally take particular affirmative steps to track 6 down a prisoner’s legal property to assist the prisoner in meeting court deadlines, or (2) required a 7 prison official to personally take particular affirmative steps to locate and deliver a prisoner’s legal 8 property where the court deadline had passed. As discussed supra, while there is a clearly 9 established First Amendment right to access the courts without active interference, there is no clearly established companion right to affirmative assistance from prison officials to meet court 11 United States District Court Northern District of California 10 deadlines. Similarly, there is no clearly established companion right to affirmative assistance from 12 prison officials to locate and deliver legal documents needed for a court deadline that has already 13 passed. Accordingly, Analyst Vierra is entitled to qualified immunity, and her motion to dismiss 14 15 is GRANTED. The Court DISMISSES with prejudice the First Amendment claim against Analyst 16 Vierra. 17 6. Sergeant Hazel 18 Sergeant Hazel argues that he is entitled to qualified immunity because a reasonable officer 19 in his position would not have known that his actions in transporting Plaintiff to PBSP would 20 violate Plaintiff’s right to access the courts. Dkt. No. 25 at 18. Plaintiff argues that a reasonable 21 officer would have understood that prison regulations required Sergeant Hazel to (1) transport an 22 inmate’s property on the same bus as the inmate when the prison officer had been informed that 23 the property contains legal documents; and (2) to make an effort to resolve the missing property 24 issue by contacting the relevant parties and ensuring the immediate transfer and release of the 25 inmate’s property. Dkt. No. 29 at 7 and 14–15. Specifically, Plaintiff argues that a reasonable 26 officer would have contacted PVSP officials and arranged for Plaintiff’s property to be timely 27 shipped to PBSP. Id. at 7. 28 The Court finds that Sergeant Hazel is entitled to qualified immunity because, at the time 18 that Sergeant Hazel transported Plaintiff to PBSP, there was no clearly established law that 2 established “beyond debate” that the conduct alleged (accepting Plaintiff’s allegations as true, see 3 Tolan, 134 S. Ct. at 1863, 1866) violated the Constitution. The relevant allegations in the 4 amended complaint regarding Sergeant Hazel are as follows: (1) Sergeant Hazel made the 5 decision to leave Plaintiff’s property at PVSP rather than transporting it on the same bus as 6 Plaintiff; and (2) when informed on July 7, 2015 that Plaintiff’s property contained legal 7 documents, Sergeant Hazel did not personally locate and deliver the property, and only suggested 8 that Plaintiff file an appeal. The crux of Plaintiff’s argument is that Sergeant Hazel should have 9 ensured him access to the courts by either (1) ensuring that Plaintiff’s property was transferred on 10 the same bus as Plaintiff or (2) personally locating and delivering Plaintiff’s property. At the time 11 United States District Court Northern District of California 1 of Sergeant Hazel’s alleged actions and inaction, it was not clearly established that a prison officer 12 was required to take the steps Plaintiff alleges he should have taken. As discussed supra, there is 13 no published Supreme Court or Ninth Circuit law that requires a prison official who knows of a 14 prisoner’s court deadline to take particular affirmative steps to track down the prisoner’s property 15 to assist the prisoner in meeting the deadline. See Brown, 751 F.3d at 990. Accordingly, Sergeant 16 Hazel is entitled to qualified immunity, and the Court DISMISSES with prejudice the First 17 Amendment claim against Sergeant Hazel. 18 D. Due Process Claim 19 The Due Process Clause of the Fourteenth Amendment protects individuals against 20 governmental deprivations of “life, liberty or property,” as those words have been interpreted and 21 given meaning over the life of our republic, without due process of law. Board of Regents v. Roth, 22 408 U.S. 564, 570–71 (1972); Mullins v. Oregon, 57 F.3d 789, 795 (9th Cir. 1995). Interests that 23 are procedurally protected by the Due Process Clause may arise from two sources — the Due 24 Process Clause itself and laws of the states. See Meachum v. Fano, 427 U.S. 215, 223–27 (1976). 25 Deprivations that are authorized by state law and are less severe or more closely related to the 26 expected terms of confinement may also amount to deprivations of a procedurally protected liberty 27 interest, provided that (1) state statutes or regulations narrowly restrict the power of prison 28 officials to impose the deprivation, i.e., give the inmate a kind of right to avoid it, and (2) the 19 1 liberty in question is one of “real substance.” Sandin v. Conner, 515 U.S. 472, 477–87 (1995). 2 Generally, “real substance” will be limited to freedom from (1) a restraint that imposes “atypical 3 and significant hardship on the inmate in relation to the ordinary incidents of prison life,” id. at 4 484, or (2) state action that “will inevitably affect the duration of [a] sentence,” id. at 487. 5 Sergeant Hazel argues that Plaintiff has not alleged that he was deprived of a 6 constitutionally protected liberty interest, and that Plaintiff cannot show a constitutionally 7 protected right to have his property transported on the same vehicle as his person for the following 8 reasons. First, Sergeant Hazel argues that, to the extent that Plaintiff had a property interest in his 9 NOA, this property interest arose from his right to access the courts. If Plaintiff cannot state a First Amendment violation, Plaintiff also fails to state a claim for a due process violation. Second, 11 United States District Court Northern District of California 10 Sergeant Hazel argues that Plaintiff had no liberty or property interest in having his property 12 transferred with him, and that there was therefore no duty to afford Plaintiff a hearing before 13 deciding to delay the transfer of Plaintiff’s property. Dkt. No. 25 at 16–17. Finally, Sergeant 14 Hazel argues that, in the alternative, he is entitled to qualified immunity. Id. at 17–19. 15 Plaintiff argues that the delay in transferring his property states a due process claim under 16 § 1983 because it constituted a constructive deprivation of property that was authorized and 17 deliberate, citing to Parratt v. Taylor, 451 U.S. 527, 535–44 (1981). He argues that Sergeant 18 Hazel’s decision to delay transfer of his property was authorized because Sergeant Hazel was 19 “acting under the authority of a Sergeant responsible for transporting California State Prison 20 inmates, and their property,” and that the decision was not random because Sergeant Hazel knew 21 that “there were established procedures where Plaintiff’s property would be transported to Pelican 22 Bay State Prison . . . . at a later time.” Dkt. No. 29 at 13. He also argues that Sergeant Hazel 23 could “easily predict that Plaintiff had legal materials within his property, and quite possibly a 24 court deadline,” and that Sergeant Hazel therefore had a “meaningful opportunity” to “simply ask 25 Plaintiff if his property contained any legal materials pertaining to an active case with an 26 impending deadline.” Id. at 13. 27 28 The Court finds that Sergeant Hazel is entitled to qualified immunity. At the time that Sergeant Hazel transported Plaintiff to PBSP, there was no clearly established law that required a 20 1 prison official transporting a prisoner to affirmatively ask the prisoner if his property contained 2 any documents pertaining to active cases with upcoming deadlines. There is no published 3 Supreme Court or Ninth Circuit law imposing such a duty on prison officials. Rather, the 4 governing caselaw at that time, which continues to be good law, clearly found no due process 5 interest in a prisoner’s legal documents. In Mitchell v. Dupnik, 75 F.3d 517 (9th Cir. 1996), the 6 Ninth Circuit found that although a jail regulation required prison officials to search legal 7 documents in the presence of the prisoner, the defendant-prison official’s violation of this rule did 8 not violate the prisoner’s due process rights because the search was not an atypical, significant 9 hardship in relation to the ordinary incidents of prison life. 75 F.3d at 523. The case cited by Plaintiff, Parratt v. Taylor, 451 U.S. 527, 535–44 (1981), is not good law. Parratt has long been 11 United States District Court Northern District of California 10 overruled by Daniels v. Williams, 474 U.S. 327 (1986), which held that that the Due Process 12 Clause is simply not implicated by a negligent act of an official causing unintended loss of 13 property. 474 U.S. at 664–65. Accordingly, Sergeant Hazel is entitled to qualified immunity, and 14 the Court DISMISSES with prejudice the due process claim against Sergeant Hazel. CONCLUSION 15 16 For the foregoing reasons, the Court GRANTS the motion to dismiss filed by Sergeant 17 Davis, Sergeant Chandler, Analyst Bramucci, and Analyst Vierra, Dkt. No. 10; and GRANTS the 18 motion to dismiss filed by Sergeant Hazel, Dkt. No. 25. The Court DISMISSES the amended 19 complaint with prejudice. 20 21 22 23 24 25 The Clerk shall terminate Docket Nos. 10 and 25; enter judgment in favor of Defendants; and close the file. IT IS SO ORDERED. Dated: 9/25/2017 ______________________________________ HAYWOOD S. GILLIAM, JR. United States District Judge 26 27 28 21

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