Gomez v. Garcia et al

Filing 10

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Signed by Judge Beth Labson Freeman on 1/17/2023. Amended Complaint due by 2/14/2023. (Attachments: # 1 Certificate/Proof of Service)(tsh, COURT STAFF) (Filed on 1/17/2023)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

Case 5:22-cv-05310-BLF Document 10 Filed 01/17/23 Page 1 of 7

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

NEXIS RENE GOMEZ,

United States District Court
Northern District of California

11

Plaintiff,

12

v.

13

Case No. 22-cv-05310 BLF (PR)
ORDER OF DISMISSAL WITH
LEAVE TO AMEND

V. GARCIA, et al.,

14

Defendants.

15
16
17
18

Plaintiff, a California inmate, filed the instant pro se civil rights action pursuant to

19

42 U.S.C. § 1983 against prison officials at Soledad State Prison (“SSP”) where he was

20

previously incarcerated.1 Plaintiff’s motion for leave to proceed in forma pauperis will be

21

addressed in a separate order.

22
23
24

DISCUSSION
A.

25
26

Standard of Review
A federal court must conduct a preliminary screening in any case in which a

prisoner seeks redress from a governmental entity or officer or employee of a

27
28

1

The matter was reassigned to this Court on September 26, 2022. Dkt. Nos. 5, 6.

Case 5:22-cv-05310-BLF Document 10 Filed 01/17/23 Page 2 of 7

1

governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any

2

cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim

3

upon which relief may be granted or seek monetary relief from a defendant who is immune

4

from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally

5

construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

6
7

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

8

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

9

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

10

United States District Court
Northern District of California

11

B.

Plaintiff’s Claims
Plaintiff filed this lawsuit against Defendants Correctional Officer V. Garcia and Lt.

12

Steve Pedon for their actions against him at SSP. Dkt. No. 1 at 2. Plaintiff claims that on

13

December 28, 2021, SSP’s Investigative Unit Services (“ISU”) conducted an investigation

14

into Plaintiff’s housing unit regarding allegations of altered “Hiteker tablets.” Id. at 3, ¶ 1.

15

Defendant Garcia searched Plaintiff’s Hiteker tablet and found some thumbnail images on

16

the hard drive. Id. at ¶ 2. Plaintiff claims Defendant Garcia immediately concluded that

17

the tablet was altered from its original state “without testing the device in a laboratory.”

18

Id. Defendant Garcia issued a rules violation report (“RVR”) for “possession of a wireless

19

device component,” which constitutes a serious offense under the state regulations. Id. at ¶

20

3. On January 16, 2022, Plaintiff appeared before the hearing officer, Defendant Lt.

21

Steven Pedone, for the RVR issued by Defendant Garcia. Id. at ¶ 4. Plaintiff argued at the

22

hearing that Defendant Garcia was not legally qualified to make the final conclusion that

23

the tablet was altered or to determine that it qualified as a “wireless device component”

24

because she lacks foundation of personal knowledge. Id. Defendant Pedone found

25

Plaintiff guilty of the charge based on Defendant Garcia’s report and the evidence of the

26

thumbnail images. Id. As a result of the guilty finding, Plaintiff was put on C-status for

27

30 days, which involved loss of privileges from the canteen, phone, yard, dayroom, and

28

2

Case 5:22-cv-05310-BLF Document 10 Filed 01/17/23 Page 3 of 7

1

packages, as well as being deprived of electronic devices including TV, radio, and a fan for

2

his cell. Id. at ¶ 5.
Plaintiff appealed the guilty finding, which was granted at the last level of review

3
4

because the examiner found a due process violation. Id. at ¶ 7. The RVR was reissued and

5

another hearing was ordered. Id. At the rehearing on July 22, 2002, Officer C. Whitman

6

found Plaintiff guilty of the same charge based on the same evidence. Id. at ¶ 8. Plaintiff

7

was against assessed 30-days on C-Status and deprived of the same privileges as the first

8

time.

United States District Court
Northern District of California

9

Plaintiff claims that the Defendant Garcia’s evidence used at the disciplinary

10

hearing does not satisfy “Daubert” or the Federal Rules of Evidence, and therefore

11

constitutes inadmissible evidence to support the guilty finding of the RVR. Dkt. No. 1 at

12

5. He contends that Defendant Garcia did not possess the expertise, knowledge, training,

13

or qualifications under the Rules to conclude that his tablet was altered, or to make the

14

final determination that his tablet is a wireless device component. Id. at 6. He asserts that

15

she essentially fabricated a report “that lacks authentication.” Id. Lastly, he contends that

16

Defendant Garcia generated the report involving her lay opinion “with the only purpose to

17

obtain a RVR conviction relying testimonial hearsay in violation of the due process of

18

law.” Id. at 7. Plaintiff seeks declaratory relief, injunctive relief in dismissing the RVRs

19

in full, the return of the tablet or reimbursement for its value, and cost of suit. Id. at 3.

20

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

21

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

22

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

23

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

24

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

25

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

26

sanctions are severe, the Due Process Clause requires certain minimum procedural

27

protections. See id. at 556-57, 571-72 n.19. The placement of a California prisoner in

28

3

Case 5:22-cv-05310-BLF Document 10 Filed 01/17/23 Page 4 of 7

1

isolation or segregation, or the assessment of good-time credits against him, as a result of

2

disciplinary proceedings, for example, is subject to Wolff’s procedural protections if (1)

3

state statutes or regulations narrowly restrict the power of prison officials to impose the

4

deprivation, and (2) the liberty in question is one of “real substance.” See Sandin v.

5

Conner, 515 U.S. 472, 477-87 (1995). “Real substance” will generally be limited to

6

freedom from (1) restraint that imposes “atypical and significant hardship on the inmate in

7

relation to the ordinary incidents of prison life,” id. at 484,2 or (2) state action that “will

8

inevitably affect the duration of [a] sentence,” id. at 487.
Plaintiff’s allegations, taken as true, fail to state a due process violation. First of all,

United States District Court
Northern District of California

9
10

Plaintiff was not placed in segregation or assessed good-time credits which clearly

11

implicate liberty interests. Rather, Plaintiff alleges that he suffered the temporary loss of

12

privileges. However, the temporary loss of access to phone, yard, dayroom, packages, and

13

electronics does not amount to an “atypical and significant hardship on the inmate in

14

relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484. “Privileges”

15

simply do not constitute liberties of “real substance” that are entitled to procedural

16

protections. Secondly, Plaintiff alleges that the guilty finding “could potentially affect” his

17

suitability for parole at future parole hearings, but “potentially” is not sufficient to amount

18

to a state action that will “inevitably affect” the duration of his sentence. Id. at 487.

19

Accordingly, Plaintiff’s allegations are insufficient to establish that he is entitled to Wolff’s

20

procedural protections for the challenged disciplinary actions.
Even if the deprivations alleged were protected liberty interests, the allegations do

21
22

not establish that Plaintiff was deprived of any of Wolff’s protections. Wolff established

23
24
25
26
27
28

2

Whether a restraint is “atypical” under Sandin is not a purely empirical question, but
rather one of the measure of a restraint in relation to an inmate's limited liberty rights. See
Carlo v. City of Chino, 105 F.3d 493, 498-99 (9th Cir. 1997); see, e.g., Resnick, 213 F.3d
443, 448-49 (9th Cir. 2000) (placement in SHU detention pending disciplinary hearing did
not give rise to a liberty interest where plaintiff failed to allege that his conditions of
confinement were materially different from those imposed on inmates in administrative
segregation or in the general population).
4

United States District Court
Northern District of California

Case 5:22-cv-05310-BLF Document 10 Filed 01/17/23 Page 5 of 7

1

five procedural requirements. First, “written notice of the charges must be given to the

2

disciplinary-action defendant in order to inform him of the charges and to enable him to

3

marshal the facts and prepare a defense.” Wolff, 418 U.S. at 564. Second, “at least a brief

4

period of time after the notice, no less than 24 hours, should be allowed to the inmate to

5

prepare for the appearance before the [disciplinary committee].” Id. Third, “there must be

6

a 'written statement by the factfinders as to the evidence relied on and reasons' for the

7

disciplinary action.” Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 489 (1972)). Fourth,

8

“the inmate facing disciplinary proceedings should be allowed to call witnesses and

9

present documentary evidence in his defense when permitting him to do so will not be

10

unduly hazardous to institutional safety or correctional goals.” Id. at 566. Fifth, “[w]here

11

an illiterate inmate is involved . . . or where the complexity of the issues makes it unlikely

12

that the inmate will be able to collect and present the evidence necessary for an adequate

13

comprehension of the case, he should be free to seek the aid of a fellow inmate, or . . . to

14

have adequate substitute aid . . . from the staff or from a[n] . . . inmate designated by the

15

staff.” Id. at 570. The complaint contains no allegation that Plaintiff did not receive all

16

these protections.

17

Furthermore, Plaintiff’s challenge to the quality of the evidence used to support the

18

guilty finding does not establish a due process claim. In Superintendent v. Hill, 472 U.S.

19

445, 454 (1985), the Court held that the revocation of good-time credits does not comport

20

with the minimum requirements of procedural due process in Wolff unless the findings of

21

the prison disciplinary board are supported by some evidence in the record. The standard

22

for the modicum of evidence required is met if there was some evidence from which the

23

conclusion of the administrative tribunal could be deduced. See id. at 455. An

24

examination of the entire record is not required nor is an independent assessment of the

25

credibility of witnesses or weighing of the evidence. See id. The relevant question is

26

whether there is any evidence in the record that could support the conclusion reached by

27

the disciplinary board. See id. The Court reiterated that revocation of good-time credits is

28

5

United States District Court
Northern District of California

Case 5:22-cv-05310-BLF Document 10 Filed 01/17/23 Page 6 of 7

1

not comparable to a criminal conviction and neither the amount of evidence necessary to

2

support such a conviction, nor any other standard greater than some evidence, applies in

3

this context. See id. at 456. Assuming that Hill’s some evidence standard applies to

4

Plaintiff’s case even though there was no revocation of good-time credits, the standard was

5

satisfied. Plaintiff asserts that he was wrongfully found guilty of the RVR based on the lay

6

opinion of Defendant Garcia that his tablet was altered. However, Defendant Garcia’s

7

testimony constitutes “some evidence” which supported the conclusion reached by the

8

disciplinary board in both hearings. 472 U.S. at 455. Lastly, Plaintiff’s claim that

9

Defendant Garcia’s testimony did not satisfy “Daubert” or the Federal Rules of Evidence

10

is unavailing because no other standard greater than some evidence applies to his case. Id.

11

at 456.

12

Plaintiff shall be granted leave to amend to attempt to state sufficient facts to

13

establish a due process claim in light of the foregoing discussion. Plaintiff must allege

14

sufficient facts to show that he was deprived of a liberty of “real substance” under Sandin

15

and that he was denied one or more of the procedural protections under Wolff.

16

CONCLUSION

17
18

For the foregoing reasons, the Court orders as follows:

19

1.

The complaint is DISMISSED with leave to amend. Within twenty-eight

20

(28) days of the date this order is filed, Plaintiff shall file an amended complaint to correct

21

the deficiencies described above. The amended complaint must include the caption and

22

civil case number used in this order, Case No. 22-cv-05310 BLF (PR), and the words

23

“AMENDED COMPLAINT” on the first page. If using the court form complaint, Plaintiff

24

must answer all the questions on the form in order for the action to proceed. The amended

25

complaint supersedes the original, the latter being treated thereafter as non-existent.

26

Ramirez v. Cty. Of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015). Consequently,

27

claims not included in an amended complaint are no longer claims and defendants not

28

6

Case 5:22-cv-05310-BLF Document 10 Filed 01/17/23 Page 7 of 7

1

named in an amended complaint are no longer defendants. See Ferdik v. Bonzelet, 963

2

F.2d 1258, 1262 (9th Cir.1992).

3

2.

Failure to respond in accordance with this order in the time provided

4

will result in the dismissal with prejudice of this action for failure to state a claim,

5

without further notice to Plaintiff.

6
7
8
9

3.

The Clerk shall include two copies of the court’s complaint with a copy of

this order to Plaintiff.
IT IS SO ORDERED.
Dated: __January 17, 2023____

________________________
BETH LABSON FREEMAN
United States District Judge

10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

Order of Dismissal with Leave to Amend
PRO-SE\BLF\CR.22\05310Gomez_dwlta

26
27
28

7