Arthur Lee Smart v. E. Ortiz et al

Filing 29

REPORT AND RECOMMENDATION to Grant 18 Defendants' MOTION to Dismiss. Objections to R&R due by 8/29/2018; Replies due by 9/5/2018. Signed by Magistrate Judge Bernard G. Skomal on 8/8/2018.(All non-registered users served via U.S. Mail Service)(acc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ARTHUR LEE SMART,

Case No.: 17CV1454 AJB (BGS)
Plaintiff,

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v.

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REPORT AND
RECOMMENDATION TO GRANT
DEFENDANTS’ MOTION TO
DISMISS

E. ORTIZ, et al.,

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Defendants.

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[ECF 18]

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Defendants have filed a Motion to Dismiss Plaintiff Arthur Lee Smart’s Complaint

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brought under 42 U.S.C. § 1983. (ECF 18.) Plaintiff asserts claims for violation of Due

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Process under the 14th Amendment and for cruel and unusual punishment under the

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Eighth Amendment. He challenges a disciplinary proceeding in the prison and the

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restrictions imposed on him as a result of those proceedings. (Id.) Defendants move to

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dismiss, asserting that Plaintiff’s Due Process claim is barred by res judicata because it

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was previously raised and determined in state court proceedings and that Plaintiff has

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failed to adequately plead either claim. (Def.’s Mot. to Dismiss [ECF 18] (“Mot.”).)

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This Report and Recommendation is submitted to United States District Judge

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Anthony J. Battaglia pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule 72.1(c) of

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the United States District Court for the Southern District of California. For the reasons

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discussed below, IT IS RECOMMENDED that the Motion to Dismiss be GRANTED.
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BACKGROUND
I.

Factual Allegations
The following allegations are drawn from Plaintiff’s Complaint. On February 2,

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2014, following a visit, Plaintiff alleges he entered the inmate search area with other

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inmates. (ECF 1 at 5, 9.1) He claims Correctional Officer Dizon picked up something

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from the floor and asked Plaintiff what it was. (Id. at 5.) Although Plaintiff claimed he

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did not know, Dizon said the contraband (marijuana), was Plaintiff’s and took him to

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administrative segregation. (Id.)

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Plaintiff alleges that two days later, on February 4, 2014, Officer A. Silva brought

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Plaintiff a Rules Violation Report (“RVR”), handed him a notification to sign to indicate

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whether he wanted to postpone the hearing until the prosecutor decided whether to

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prosecute, and Plaintiff signed it. (Id. at 5-6.) Plaintiff claims that “after considerable

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time had past,” he examined the RVR and discovered it belonged to another inmate. (Id.

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at 6.) Plaintiff claims he tried to obtain his RVR before his hearing on February 25,

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2018, but was not able to. (Id.)

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As to the February 25, 2014 disciplinary hearing, Plaintiff alleges that Lieutenant

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E. Ortiz proceeded with the disciplinary hearing despite Plaintiff explaining that Silva

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gave him someone else’s RVR. (Id. at 6, 9) Plaintiff alleges that his RVR was held up

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for him to read. (Id.) Plaintiff claims his request to call Officer Williams as a witness

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was denied as irrelevant. (Id. at 6-7, 9.) Plaintiff asserts that he wanted Williams to

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testify there were other inmates in the room and the contraband came from the floor to

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contradict Dizon’s claim that there were no other inmates in the room and the contraband

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came from Plaintiff’s pocket. (Id. at 7, 9.) Plaintiff alleges he was found guilty of the

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rules violation, assessed 30 days loss of canteen, one year loss of visits, an additional

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two-year loss of non-contact visits, nine months placement in segregated housing, loss of

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The Court cites the CM/ECF pagination throughout except when citing Defendants’
briefs.
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ability to participate in rehabilitation, employment, and recreation, subjected to

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restrictions on communication and personal property, and changed from a Level III

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inmate to a Level IV inmate. (Id. at 7, 9-11.)

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Plaintiff asserts two claims. In claim one he argues his Due Process rights were

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violated because he did not receive timely notice of the violation and was not allowed to

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call witnesses at the disciplinary hearing. (Id. at 5-8.) In claim two he asserts he was

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subjected to cruel and unusual punishment because, as a result of the disciplinary

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proceeding, he was denied visits for one year, denied contact visits for an additional two

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years, precluded from participation in a variety of prison programs, placed in segregated

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housing for nine months, and had his custody level increased from Level III to Level IV.

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(Id. at 9.) Plaintiff seeks to have his rules violation for introduction of marijuana for

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purposes of distribution dismissed and removed from his records, his custody level

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reduced, and $250,000 in damages. (Id. at 12.)

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II.

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Procedural History
In 2010, Plaintiff was sentenced to an indeterminate term as follows: 25 years to

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life on twelve counts, 27 years to life on one count, and 129 years of enhancements, to be

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served consecutively. (RJN2 001-7.)

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As to the disciplinary hearing discussed above, Plaintiff alleges that he filed an

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inmate grievance and appealed the decision through the third level within the prison

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system. (Id. at 7, 10) He argued his due process rights were violated because he did not

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receive his disciplinary infraction 15 days after the incident or 24 hours before the

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Defendants’ Request for Judicial Notice is GRANTED. Defendants’ request the Court
take judicial notice of the Certified Abstract of Judgment in Plaintiff’s underlying
criminal case, Plaintiff’s filings challenging the disciplinary proceeding before the state
courts, and the state courts’ decisions on those filings. Harris v Cnty. of Orange, 682
F.3d 1126, 1132 (9th Cir. 2012) (Courts “may take judicial notice of undisputed matters
of public record, including documents on file in federal or state courts.”) The Court cites
the “RJN” consecutive pagination stamped on the bottom of each page of the RJN.
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hearing. (Id. at 7.) Plaintiff alleges that he sought to have officers and the inmate whose

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RVR he claims he mistakenly received interviewed to substantiate his claims regarding

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the hearing. (Id. at 7-8, 10.)

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Plaintiff also explains, and the lodgments submitted by Defendants confirm, that

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Plaintiff pursued a due process claim as to the disciplinary proceeding in the state courts

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based on challenges to timely receipt of his RVR and not being able to call witnesses.

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(RJN 008-96; Id. at 8 (Plaintiff asserts at the conclusion of the allegations of claim 1 that

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he “pursu[ed] these claims in the state courts on a habeas corpus.”)

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A.

Plaintiff’s State Habeas Proceedings

Plaintiff’s first habeas petition before the San Diego Superior Court argues his Due

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Process rights were violated in the disciplinary proceeding because he did not timely

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receive his RVR for the incident, he was not allowed to call witnesses, and, as a result, he

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incurred a loss of 180 days good time credits, presenting what he described as an atypical

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and significant hardship. (RJN 008-25.) The Superior Court issued a decision denying

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the petition. (RJN 026-27.)The court recognized he was claiming a denial of due process

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in the disciplinary proceeding based on not receiving his RVR timely and not being

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allowed to call a witness and then denied the petition. (RJN 026-27.) The court found:

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the guilty finding was supported by some evidence; that the California Department of

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Corrections and Rehabilitation (“CDCR”) did not act arbitrarily in rejecting Plaintiff’s

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claims of denial of due process; and that Plaintiff failed to make a prima facie showing of

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any due process violation. (RJN 030-37.) Plaintiff then filed another petition with the

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Superior Court asking the court to consider new evidence. (RJN 030-37.) The court

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denied this petition as well, finding Plaintiff failed to justify the filing of numerous

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petitions, failed to support his claim the evidence was actually new, and failed to make a

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prima facie case he suffered any prejudice even assuming there was any due process

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violation. (RJN 038-41.)

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Plaintiff then sought review by the California Court of Appeal by referencing his
arguments in portions of his prior petitions. (RJN 042-58 (“all of my contentions are the
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same as my first and second petition.”) The Court of Appeal found Plaintiff failed to

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provide sufficient documentary evidence to support his claims, specifically he provided

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no documents related to his hearing or copies of administrative appeals. (RJN 059.)

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Plaintiff then filed a “Petition for Reconsideration,” also with the Court of Appeal,

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indicating he was now attaching the documents needed to decide his petition. (RJN 061-

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73.) The Court of Appeal then denied this petition. (RJN 074-75.) The court recognized

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he was asserting a due process violation regarding timely notice of the alleged violation,

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but found the record contained some evidence that he did receive timely notice. (RJN

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074-75.) Plaintiff also filed two petitions with the California Supreme Court raising the

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same issues and each was denied without analysis. (RJN 076-79.) Plaintiff then sought

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review in federal court.3

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DISCUSSION

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Defendants move to dismiss Plaintiff’s Due Process claim based on res judicata.

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Defendants additionally move to dismiss both of Plaintiff’s claims pursuant to Federal

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Rule of Civil Procedure 12(b)(6) for failing to state a claim. The Court first addresses res

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judicata as to the Due Process claim and then dismissal under Rule 12(b)(6) as to both

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claims.

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Although not set forth in the procedural history of Plaintiff’s Complaint or Defendants’
Motion to Dismiss, Plaintiff also filed a federal habeas petition in this district in Case No.
16cv2845 GPC (JMA) on November 16, 2016 asserting the same due process claim
regarding the same disciplinary hearing. The case was transferred to the Central District
of California based on Plaintiff’s location at the time in the Central District. (Case No.
16cv2845 GPC (JMA) at ECF 3.) The federal petition was then dismissed on a motion to
dismiss. (Case No. 2:16CV8961 GW (JDE) at ECF 16, 20.) The court found that
because Plaintiff’s claims did not fall within the core of habeas he was required to bring
them under § 1983. (Id. at ECF 16 (citing Nettles v. Grounds, 830 F.3d 922, 931 (9th
Cir. 2016)). This § 1983 Complaint was then filed in the Central District. (Case No. CV
17-4118 GW (JDE), ECF 1.) The case was then transferred to this district based on the
events alleged in the Complaint occurring at Richard J. Donovan Correctional Facility
(“RJD”) in this district. (Id. at 4.)
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I.

Res Judicata
Defendants argue Plaintiff’s Due Process claim is barred by the doctrine of res

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judicata because Plaintiff brought the same claim in state court. (Mot. at 12-17; Defs.’

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Reply [ECF 28] at 5-6.) Plaintiff does not dispute that he raised the same claim in state

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habeas proceedings. Rather, he argues that he did not receive a full and fair hearing in

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state court. As explained below in detail, Plaintiff’s Due Process claim is precluded by

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California claim preclusion because all the requirements for it to apply have been met.

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A.

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“Under the Full Faith and Credit Statute, 28 U.S.C. § 1738, federal courts must

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give the same preclusive effect to state court judgments, including ‘reasoned’ habeas

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judgments, as the rendering state court would.” Furnace v. Giurbino, 838 F.3d 1019,

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1023 (9th Cir. 2016); Gonzales v. Cal. Dep’t of Corrs., 739 F.3d 1226, 1230 (9th Cir.

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2014) (finding “reasoned denials of California habeas petitions . . . do have claim-

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preclusive effect”) “Accordingly, California claim preclusion4 law governs whether, in

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light of his earlier state habeas petition[s], [Plaintiff’s] § 1983 claims may be brought in

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federal court.” Furnace, 838 F.3d at 1023.

Legal Standard

“Under California’s doctrine of claim preclusion, ‘all claims based on the same

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cause of action must be decided in a single suit; if not brought initially, they may not be

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raised at a later date.’” Gonzales, 739 F.3d at 1232 (quoting Mycogen Corp. v. Monsanto

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The term res judicata has been used to encompass both claim preclusion and issue
preclusion, two distinct concepts, and a substitute term for claim preclusion only. See 18
C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4402 (2d ed. 2002)
(explaining the evolution of the terminology of res judicata); see also Taylor v. Sturgell,
553 U.S. 880, 892 (2008) (applying federal common law of res judicata and explaining
the that “[t]he preclusive effect of a judgment is defined by claim preclusion and issue
preclusion, which are collectively referred to as ‘res judicata.’”) This Report and
Recommendation uses the term claim preclusion, as the Ninth Circuit has, in analyzing
the preclusive effect of California state habeas decisions on subsequent § 1983 claims
brought in federal court. See Gonzales, 739 F.3d at 1230-34; see also Furnace, 838 F.3d
at 1023.
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Co., 28 Cal. 4th 888, 897 (2002)). It “precludes piecemeal litigation by splitting a single

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cause of action or relitigation of the same cause of action on a different legal theory or for

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different relief.” Gonzales, 739 F.3d at 1232 (quoting Mycogen Corp., 28 Cal. 4th at

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897). “If the same primary right is involved in two actions, judgment in the first bars

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consideration not only of all matters actually raised in the first suit but also all matters

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which could have been raised.” Gonzales, 739 F.3d at 1233 (emphasis in original)

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(quoting Eichman, 147 Cal. App. 3d at 1174.) Therefore, if the same primary right is

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involved in Plaintiff’s state habeas proceedings and this § 1983, all matters Plaintiff could

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have raised are barred by claim preclusion.

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“[C]laim preclusion arises if a second suit involves: (1) the same cause of action

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(2) between the same parties or parties in privity with them] (3) after a final judgment on

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the merits of the first suit.” Furnace, 838 F.3d at 1024 (quoting DKN Holdings LLC v.

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Faerber, 61 Cal. 4th 813, 824 (2015)).

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B.

Analysis
1.

Same Cause of Action

Plaintiff does not argue his Due Process claim in this action and his state habeas

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actions are different causes of action. He pleads the opposite in his Complaint, stating at

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the conclusion of claim 1, “he has pursu[ed] these claims in the state courts on a habeas

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corpus.” (ECF 1 at 8.) Plaintiff also does not attempt to distinguish the state and federal

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actions in his Opposition. However, even without this concession, the Court finds

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Plaintiff’s Due Process claims in his state habeas proceedings and this action are the same

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cause of action for purposes of California claim preclusion.

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“California courts employ the ‘primary rights’ theory to determine what

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constitutes the same cause of action for claim preclusion purposes.” Gonzales, 739 F.3d

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at 1232 “If two actions involve the same injury to the plaintiff and the same wrong by

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the defendant then the same primary right is at stake even if in the second suit the

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plaintiff pleads different theories of recovery, seeks different forms of relief and/or adds

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new facts supporting recovery.” Id. at 1233 (quoting Eichman v. Fotomat Corp., 147

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Cal. App. 3d 1170, 1174 (1983)).

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In this action, as in the state habeas proceedings, Plaintiff asserts his Due Process

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rights were violated in a prison disciplinary proceeding because he did not receive timely

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notice of his violation, i.e. he received someone else’s RVR, and he was not allowed to

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call material witnesses at his disciplinary hearing. Plaintiff has consistently asserted this

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claim as a Due Process violation through all the state court proceedings and in the present

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action. Unlike many cases where the plaintiff asserts a new legal theory to try to

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circumvent the state court decision on the same wrong, here, Plaintiff does not. Both

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actions involve the same alleged wrongs by Defendants in the same disciplinary

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proceeding. Although there is some variation in the consequences Plaintiff identifies as

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being imposed from petition to petition,5 they all raise consequences resulting from the

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same guilty finding in the same disciplinary proceeding6 he consistently challenges on the

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same basis. Plaintiff also changes the witness he was denied as he proceeds through his

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state and federal filings, but he consistently challenges being denied the opportunity to

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call witnesses. The addition of new facts, i.e. a different witness he was supposedly

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denied, does not alter the analysis. See Gonzales, 739 F.3d at 1233 (“even if in the

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second suit the plaintiff pleads different theories of recovery, seeks different forms of

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relief and/or adds new facts supporting recovery” same primary right is at stake “if two

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actions involve the same injury to the plaintiff and same wrong by the defendant.”).

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For example, in Plaintiff’s first habeas petition to the Superior Court, he seeks among
other relief, restoration of behavior credits without reference to the other privileges lost.
(RJN 018, 035.) In his second petition to the same court, he seeks restoration of all
privileges and work credits lost. His petitions before the Court of Appeal, similarly vary.
(RJN 056, 067.)
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These restrictions are also alleged as cruel and unusual punishment under Plaintiff’s 8th
Amendment claim.
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When, as here, “both actions involve the same alleged injury to [Plaintiff] (the

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administrative convictions and attendant loss of privileges) and the same alleged wrong

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by the [Defendants] (the deprivation of [Plaintiff’s] liberty without due process] . . . [t]he

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two actions are . . . identical.” Davis v. Small, No. 11-55649, 595 Fed. Appx. 688, at

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*691 (9th Cir. Dec. 17, 2014); see also Morales v. Pelican Bay State Prison, No. C 06-

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4175 PJH (PR), 2010 WL 3769385, at *3 (N.D. Cal. Sept. 21, 2010) (finding common

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harm was violation of constitutional rights at the disciplinary hearing).

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Additionally, as the Ninth Circuit explained in Furnace v Giurbino, “one reason
for California’s primary right doctrine is to avoid piecemeal litigation and the possibility

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of inconsistent judgments.” 838 F.3d at 1026-27 (citations omitted). If Plaintiff were

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allowed to proceed with his Due Process challenge to the same disciplinary proceeding

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asserting the same Due Process violations by the same individuals and he were

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successful, “it would necessarily be inconsistent with the judgment[s] that he was not

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entitled to habeas relief” based on a Due Process violation. Id. at 1027.

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The Court finds the Plaintiff’s § 1983 Due Process claim in this action and his
Due Process claim before the state court involved the same cause of action.
2.

Same Parties

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Plaintiff also wisely does not argue the state and federal actions involve different

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parties. “California claim preclusion case law . . . prevents litigation ‘between the same

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parties or parties in privity with them.’” Furnace, 838 F.3d at 1028 (quoting DKN

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Holdings, 61 Cal. 4th at 824). Plaintiff’s state habeas petitions named either the warden

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of the facility he was housed in or CDCR as respondent and in this action he names the

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individual officers at RJD that allegedly violated his right to Due Process in the

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disciplinary proceedings. However, the individuals named as Defendants in this action

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were identified by name in the state petitions. See id. (finding significant the naming of

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individuals in habeas proceedings where the warden was named as respondent).

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Additionally, the warden of RJD (where Plaintiff was housed when the disciplinary

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proceeding took place) is named as respondent in two of Plaintiff’s state petitions which
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also supports a finding or privity. Id. at 1028 n. 5. (finding supervisor in privity with

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individual officers based on supervisory relationship); see also Horton v Bradbury, No. C

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16-6411 WHA (PR), 2017 WL 8793339, at *3 (N.D. Cal. Dec. 12 2017) (finding privity

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between warden and individual defendants “because they are officers of the same state

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government agency and [the warden] is their superior”). The Court finds Plaintiff’s

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§ 1983 Due Process claim involves the same parties or parties in privity with them as in

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his state habeas cases. Furnace, 838 F.3d at 1024.

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3.

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Final Judgment on the Merits

Plaintiff also does not dispute that the state courts reached a final decision on the

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merits of his Due Process claim other than, as discussed below, his claim that he did not

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receive a hearing on his claim in the state courts.
“[R]easoned denials of California habeas petitions . . . do have a claim preclusive

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effect.” 7 Gonzales, 739 F.3d at 1231. Even without considering the two summary

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denials by the California Supreme Court and the initial denial by the Court of Appeal,8

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the state courts issued three reasoned decisions on the merits of Plaintiff’s Due Process

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claim. As detailed above (Section II.A), each of these three decisions recognized

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Plaintiff was raising a Due Process claim as to his disciplinary proceedings and denied

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his petitions. All three decisions explicitly recognize his challenge based on lack of

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timely notice, i.e. did not receive his RVR before the hearing, and deny relief. (RJN 026-

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29, 038-41, 074-75.) And, the Superior Court twice acknowledged and rejected

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The Ninth Circuit has explained in some detail that California affords claim preclusive
effect to its habeas judgments. Gonzales, 739 F.3d at 1231-32. It does not matter that the
remedy sought is different or even that the forum in which relief was initially sought
could not award the relief sought in the subsequent action. Id. at 1232.
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The Court need not consider the California Supreme Court’s two summary denials of
Plaintiff’s petitions or the first denial by the Court of Appeal that focused on Plaintiff’s
failure to provide sufficient documentary evidence to support his claim because the Court
of Appeal subsequently issued a reasoned denial on the merits of Plaintiffs Due Process
claim.
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Plaintiff’s claims regarding not being able to call witnesses. (RJN 027-28, 038-40.)

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These denials are final given Plaintiff raised them and they were denied by the California

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Supreme Court. (RJN 081, 096.)

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In Opposition to the Motion to Dismiss, Plaintiff argues his Due Process claim is

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not barred because he did not receive a full and fair hearing. (ECF 26 at 20-25.) Plaintiff

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relies on language in Silverton v. Dep’t of Treasury, 644 F.2d 1341 (9th Cir. 1981)

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regarding the importance of a “full and fair hearing on constitutional claims” when

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considering state habeas claims. Silverton, 644 F.2d at 1346. Plaintiff appears to be

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arguing that because he did not receive an evidentiary hearing in the state court

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proceedings, his Due Process claim is not precluded. The Court disagrees.

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As an initial matter, Plaintiff cites no authority requiring the state courts to conduct

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an evidentiary hearing for California claim preclusion to apply. And, neither of the Ninth

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Circuit’s two most recent decisions setting forth the requirements for California claim

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preclusion based on prior state habeas decisions suggest that an evidentiary hearing is

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required. Furnace, 838 F.3d at 1022-28 (no indication of an evidentiary hearing in

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procedural history and finds claim preclusion); Gonzales, 739 F.3d at 1229-1234 (no

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indication of an evidentiary hearing in procedural history and finds claim preclusion).

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Additionally, the case upon which Plaintiff relies for the general premise that a plaintiff

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must be “afforded a full and fair opportunity for issues to be heard and determined under

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federal standards” for claim preclusion to apply is a case addressing issue preclusion. See

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Gonzales, 739 F.3d at 1230 (emphasis added) (explaining that Silverton addressed issue

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preclusion, not claim preclusion). Regardless, the state habeas decisions do apply federal

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standards.

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In conclusion, the Court finds Plaintiff’s Due Process claim is precluded under

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California claim preclusion because it involves the same cause of action between parties

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in privity with them after a final judgment on the merits. Plaintiff may not raise any

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matters raised or which could have been raised in the state habeas proceedings. Gonzales,

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739 F.3d at 1233 (citations omitted). Therefore, the Court RECOMMENDS
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Defendants’ Motion to Dismiss Plaintiff’s Due Process claim based on claim preclusion

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be GRANTED and this claim be DISMISSED with prejudice.

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II.

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Failure to State a Claim
“A dismissal under [R]ule 12(b)(6) ‘may be based on either a lack of a cognizable

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legal theory or the absence of sufficient facts alleged under a cognizable legal theory.’”

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Kwan v. SanMedica Int’l, 854 F.3d 1088, 1093 (9th Cir. 2017) (quoting Johnson v.

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Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121-22 (9th Cir. 2008)). Under Rule

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8(a)(2), the complaint need only provide a “short and plain statement of the claim

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showing that [the plaintiff] is entitled to relief.” Although “the statement need only give

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the defendant[s] fair notice of what ... the claim is and the grounds upon which it rests,” it

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“must, at a minimum, plead ‘enough facts to state a claim to relief that is plausible on its

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face.’” Johnson, 534 F.3d at 1122 (quoting Erickson v. Pardus, 551 U.S. 89, 127 (2007)

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and Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007)). “A claim has facial

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plausibility when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.

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Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).

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The Court must view the factual allegations of the complaint “in the light most

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favorable to [the plaintiff], accepting all well-pleaded factual allegations as true, as well

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as any reasonable inferences drawn from them.” Johnson, 534 F.3d at 1123 (citing

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Broam v Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003)). Additionally, because Plaintiff “is

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an inmate . . . proceed[ing] pro se, his complaint ‘must be held to less stringent standards

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than formal pleadings drafted by lawyers.’” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir.

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2010) (explaining that courts should “continue to construe pro se filings liberally when

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evaluating them under Iqbal.”). Particularly in civil rights cases, the court must “construe

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the pleadings liberally and . . . afford the petitioner the benefit of any doubt.” Id. (citing

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Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)). “However, a liberal

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interpretation of a pro se civil rights complaint may not supply essential elements of the

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claim that were not initially pled. Vague and conclusory allegations of official
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participation in civil rights violations are not sufficient to withstand a motion to dismiss.”

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Litmon v. Harris, 768 F.3d 1237, 1241 (9th Cir. 2014) (citing Pena v Gardner, 976 F.2d

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469, 471 (9th Cir 1992)).

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The Court’s review on a motion to dismiss under Rule 12(b)(6) is generally limited

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to the allegations of the complaint. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th

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Cir. 2001) (citing Cervantes v. City of San Diego, 5 F.3d 1273, 1274 (9th Cir. 1993)).

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“[A] court may not look beyond the complaint to a plaintiff’s moving papers, such as a

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memorandum in opposition to a defendant’s motion to dismiss.” Schneider v. Cal. Dep’t

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of Corrs., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998) (emphasis in original) (citing Harrell

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v. United States, 13 F.3d 232, 236 (7th Cir. 1993)). “Facts raised for the first time in

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plaintiff’s opposition papers should be considered by the court in determining whether to

12

grant leave to amend or to dismiss the complaint with or without prejudice.” Broam, 320

13

F.3d at 1026 n.2 (citing Orion Tire Corp. v. Goodyear Tire & Rubber Co., 268 F.3d

14

1133, 1137-38 (9th Cir. 2001)). Here, Plaintiff has asserted new allegations in his

15

Opposition to the Motion to Dismiss. The Court has not considered those allegations in

16

evaluating the sufficiency of the Complaint under Rule 12(b)(6), but does consider them

17

for purposes of leave to amend.

18

A.

19

“To state a claim under § 1983, a plaintiff [1] must allege the violation of a right

42 U.S.C § 1983

20

secured by the Constitution and laws of the United States, and [2] must show that the

21

alleged deprivation was committed by a person acting under color of state law.” Naffe v.

22

Frey, 789 F.3d 1030, 1035-36 (9th Cir. 2015) (quoting West v. Atkins, 487 U.S. 42, 48

23

(1988)). “Dismissal of a § 1983 claim following a Rule 12(b)(6) motion is proper if the

24

complaint is devoid of factual allegations that give rise to a plausible inference of either

25

element.” Id. at 1036 (citing DeGrassi v. City of Glendora, 207 F.3d 636, 647 (9th Cir.

26

2000), Price v. Hawaii, 939 F.2d 702, 707-09 (9th Cir. 1991), and Iqbal, 556 U.S. at

27

678). Here, Plaintiff claims that Defendants, correctional officers, violated his due

28

process rights under the 14th Amendment and subjected him to cruel and unusual
13
17CV1454 AJB (BGS)

1

punishment under the Eighth Amendment.

2

1.

14th Amendment – Due Process

3

If the Due Process claim is dismissed with prejudice based on claim preclusion as

4

recommended above, consideration of dismissal based on Rule 12(b)(6) is unnecessary.

5

However, the Court provides the following analysis of the issues raised in the Motion

6

regarding dismissal under Rule 12(b)(6).

7

Defendants argue Plaintiff’s Due Process claim should also be dismissed because he

8

fails to allege a protected liberty interest. More specifically, Defendants argue Plaintiff’s

9

confinement in administrative segregation does not constitute an “atypical and significant

10

hardship” as required to create a liberty interest and he has no liberty interest in the other

11

restrictions he raises in the Complaint. As to the Due Process claim, Plaintiff only

12

addresses his confinement to administrative segregation in his Opposition. His briefing is

13

almost entirely new allegations regarding limitations associated with being in

14

administrative segregation that are absent from the Complaint that the Court cannot

15

consider on a Rule 12(b)(6) motion to dismiss.9

16

The Due Process Clause of the Fourteenth Amendment prohibits states from

17

“depriving any person of life, liberty, or property, without the due process of law.” U.S.

18

Const. Amend. XIV. The procedural guarantees of due process apply when a

19

constitutionally-protected liberty or property interest is at stake. See Wolff v. McDonnell,

20
21

As noted above, “a court may not look beyond the complaint to a plaintiff’s moving
papers, such as a memorandum in opposition to a defendant’s motion to dismiss.”
Schneider, 151 F.3d at 1197 n.1 (emphasis in original)(citations omitted). However, the
Court notes that the new allegations regarding denial of access to his television while in
administrative segregation, that it was too cold in his cell in San Diego, and that he did
not have access to his legal materials for some unknown period of time are unlikely to
constitute an atypical and significant hardship on [him] in relation to the ordinary
incidents of prison life.” Sandin, 515 U.S. at 484; see also Martin v. Hurtado, No.
07CV598 BTM (RBB), 2008 WL 4145683, at *13 (S.D. Cal. Sept. 3, 2008) (“the
deprivation of his television does not pose an atypical and significant hardship when
compared to the ordinary incidents of prison life.”).
9

22
23
24
25
26
27
28

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17CV1454 AJB (BGS)

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418 U.S. 539, 557-58 (1974). To state a cause of action for deprivation of Due Process, a

2

plaintiff must first establish the existence of a liberty interest for which the protection is

3

sought. Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (“We need reach the question of

4

what process is due only if the inmates establish a constitutionally protected liberty

5

interest.”).

6

In Sandin v. Connor, the Supreme Court “refocused the test for determining the

7

existence of a liberty interest away from the wording of prison regulations and toward an

8

examination of the hardship caused by the prison’s challenged action relative to the ‘basic

9

conditions’ of life as a prisoner.” Mitchell v. Dupnik, 75 F.3d 517, 522 (9th Cir.1996)

10

(citing Sandin v. Connor, 515 U.S. 472, 484 (1995)); McQuillion v. Duncan, 306 F.3d 895,

11

902–03 (9th Cir. 2002) (Sandin abandons the mandatory/permissive language analysis

12

courts traditionally looked to when determining whether a state prison regulation created a

13

liberty interest which required due process protection).

14

Plaintiff’s Opposition cites cases that either pre-date this shift in the required

15

analysis or involve pretrial detainees rather than convicted prisoners like Plaintiff.10

16

Plaintiff seems to be seeking this Court’s direct enforcement of California’s rules and

17

regulations, but that is not the appropriate analysis. “After Sandin, it is clear that the

18

touchstone of the inquiry into the existence of a protected, state-created liberty interest in

19

avoiding restrictive conditions of confinement is not the language of regulations regarding

20

those conditions but the nature of those conditions themselves ‘in relation to the ordinary

21

incidents of prison life.’” Wilkinson, 545 U.S. at 223 (quoting Sandin, 515 U.S. at 484)

22

(emphasis added).

23
24
25
10

26
27
28

For example, Plaintiff argues the Court should follow Valdez v. Rosenbaum, 302 F.3d
1039, 1044 (9th Cir. 2002), however, that decision itself explains that the plaintiff in that
case was a pretrial detainee rather than a convicted prisoner and acknowledges the
change in the analysis under Sandin for convicted prisoners like Plaintiff. Valdez, 302
F3d at 1044 n.3.
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17CV1454 AJB (BGS)

1

Due process protections are implicated if Plaintiff alleges facts to show that

2

Defendants: (1) restrained his freedom in a manner not expected from his sentence, and (2)

3

“impose[d] atypical and significant hardship on [him] in relation to the ordinary incidents

4

of prison life.” Sandin, 515 U.S. at 484. The allegations of the Complaint do not meet this

5

standard.
As to administrative segregation, Plaintiff’s Due Process claim only asserts that he

6
7

was placed in administrative segregation for nine months as a result of the disciplinary

8

hearing. However, administrative segregation in itself does not implicate a protected

9

liberty interest. Serrano v. Francis, 345 F.3d. 1071, 1078 (9th Cir. 2003); see also Gray

10

v. Hernandez, 651 F. Supp. 2d 1167, 1177 (S.D. Cal. 2009) (finding administrative

11

segregation and its attendant limitations not imposed in general population did not

12

constitute the “dramatic departure” from the standard conditions of confinement required

13

under Sandin, 515 U.S. at 485). The only other allegations associated with administrative

14

segregation are the denial of access to rehabilitation and employment programs and

15

limitations on recreation and communications. The Court cannot find that “in relation to

16

the ordinary incidents of prison life,” any of these limitations “impose an atypical or

17

significant hardship.” Sandin, 515 U.S. at 484; see also Gray, 651 F. Supp. 2d at 1176-

18

77 (no liberty interest in participation in prison employment programs).

19

Defendants also specifically argue Plaintiff has no liberty interest in loss of

20

visitation and canteen.11 Plaintiff does not address either in his Opposition. However, the

21

Court concludes that these restriction do not give rise to a protected liberty interest

22

because they are not atypical for one serving a prison sentence. Gerber v. Hickman, 291

23

F.3d 617, 621 (9th Cir. 2002) (summarizing cases finding prisoners have no due process

24
25
11

26
27
28

Defendants argue Plaintiff does not have a liberty interest in the loss of good time
credits because he is serving a series of consecutive indeterminate life sentence and
would not be eligible for parole until 456 years after his conviction. (Mot. at 6-8; Reply
at 3.) The Court does not address this issue because Plaintiff does not assert the loss of
good time credits as a basis for any claim in his Complaint or address it in his Opposition.
16
17CV1454 AJB (BGS)

1

right to visits); Allen v. Kernan, No. 16CV1923 CAB (JMA), 2017 WL 4518489, *5

2

(“the loss of privileges like yard time, phone access, and visitation are within the range of

3

confinement to be normally expected for one serving the underlying sentence, and

4

therefore are not atypical.”)

5

Plaintiff has failed to plead the deprivation of a protected liberty interest as

6

required to state a Due Process claim. The Court RECOMMENDS Plaintiff’s Due

7

Process claim also be dismissed for failure to state a claim.

8

2.

Eighth Amendment – Cruel and Unusual Punishment

9

“The Eighth Amendment’s prohibition against cruel and unusual punishment

10

imposes duties on prison officials to ‘provide humane conditions of confinement.’”

11

Foster v. Runnels, 554 F.3d 807, 812 (9th Cir. 2009) (quoting Farmer v. Brennan, 511

12

U.S. 825, 832 (1994)). “Prison officials must ensure that inmates receive adequate food,

13

clothing, shelter, and medical care.” Id. (quoting Farmer, 511 U.S. at 832).

14

An Eighth Amendment claim based on conditions of confinement, like that

15

asserted here, “requires a two-part showing.” Id.; see also Farmer, 511 U.S. at 832- 35

16

(discussing conditions of confinement and two requirements for an Eighth Amendment

17

claim). “First, the deprivation alleged must be, objectively, sufficiently serious; a prison

18

official’s act or omission must result in the denial of ‘the minimal civilized measure of

19

life’s necessities.’” Farmer, 511 U.S. at 834. Second, “[t]he inmate must then make a

20

subjective showing that the deprivation occurred with deliberate indifference to the

21

inmate’s health or safety.” Foster, 554 F3d at 812 (citing Farmer, 511 U.S. at 834).

22

Plaintiff’s Complaint does not meet either prong. The Complaint lacks allegations of a

23

sufficiently serious deprivation and there are no allegations suggesting any Defendant

24

was deliberately indifferent to Plaintiff’s needs.

25
26

a)

Objective Prong

Plaintiff’s Eighth Amendment claim challenges the same restrictions imposed on

27

him as a result of the disciplinary proceeding, specifically placement in administrative

28

segregation, loss of contact visits for a year, loss of non-contact visits for an additional
17
17CV1454 AJB (BGS)

1

two years, not being able to participate in rehabilitation and employment programs, 30

2

days loss of canteen access, and an increase in his custody level from Level III to Level

3

IV.

4

Under the Eighth Amendment, “prison officials must ensure that inmates receive

5

adequate food, clothing, shelter, and medical care, and must take reasonable measures to

6

guarantee the safety of the inmates.” Farmer, 511 U.S. at 832-3 (collecting cases)

7

(citations omitted). None of the restrictions alleged rise to the level of a denial of these

8

‘the minimal civilized measure of life’s necessities.’” Farmer, 511 U.S. at 834 (quoting

9

Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). “The Constitution ‘does not mandate

10

comfortable prisons’” and while it does not “permit inhumane ones,” nothing Plaintiff

11

alleges in his Complaint rises to the level of an objectively, sufficiently serious

12

deprivation to constitute cruel and unusual punishment.” Id. at 832, 834.

13
14

b)

Subjective Prong

“To establish a prison official’s deliberate indifference, an inmate must show that

15

the official was aware of the risk to the inmate’s health or safety and that the official

16

deliberately disregarded the risk.” Foster, 554 F.3d at 814 (citing Johnson v. Lewis, 217

17

F.3d 726, 734 (9th Cir. 2000). “Deliberate indifference is a high legal standard.” Toguchi

18

v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). Deliberate indifference is itself a two-

19

part inquiry. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). “First, the inmate

20

must show that the prison officials were aware of a ‘substantial risk of serious harm’ to

21

an inmate’s health or safety.” Id. (quoting Farmer, 511 U.S. at 837). “Second, the

22

inmate must show that the prison officials had no ‘reasonable’ justification for the

23

deprivation, in spite of that risk.” Id. (citing Farmer, 511 U.S. at 844). Plaintiff’s

24

Complaint satisfies neither part of the two-part inquiry under the subjective analysis.

25

Even if Plaintiff had alleged some objectively, sufficiently serious deprivation,

26

Plaintiff does not allege any of the Defendants participated in, knew of, or reasonably

27

should have known of any constitutional injury. See Farmer, 511 U.S. at 837 (to be liable

28

for a claim of deliberate indifference, “the official must both be aware of facts from
18
17CV1454 AJB (BGS)

1

which the inference could be drawn that a substantial risk of serious harm exists, and he

2

must also draw the inference”); Gibson v. Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002)

3

(even if a prison official should have been aware of the risk, if he “was not, then [he] has

4

not violated the Eighth Amendment, no matter how sever the risk”), overruled on other

5

grounds by Castro v. Cty. of Los Angeles, 833 F.3d 1060 (9th Cir. 2016). There are

6

simply no allegations in the Complaint that any Defendant was aware of any serious harm

7

to Plaintiff’s health or safety.
The Court RECOMMENDS Plaintiff’s Eighth Amendment claim be

8
9
10
11

DISMISSED.
III.

Leave to Amend
Under Federal Rule of Civil Procedure 15(a)(2), leave to amend shall be freely

12

given when justice so requires. “In deciding whether justice requires granting leave to

13

amend, factors to be considered include the presence or absence of undue delay, bad

14

faith, dilatory motive, repeated failure to cure deficiencies by previous amendments,

15

undue prejudice to the opposing party and futility of the proposed amendment.” Moore v.

16

Kayport Package Express, Inc., 885 F.2d 531, 538 (9th Cir. 1989) (citing Foman v.

17

Davis, 371 U.S. 178, 182 (1962) and DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186

18

(9th Cir. 1987)).

19

As to Plaintiff’s Due Process claim, the Court does not recommend granting leave

20

to amend given the Court’s conclusion that the claim is barred by claim preclusion and

21

should be dismissed with prejudice.

22

As to Plaintiff’s Eighth Amendment claim, there has been no undue delay, bad

23

faith, or dilatory motive. It does not appear there would be any undue prejudice to any

24

defendants. And, there have been no repeated failures to cure deficiencies by previous

25

amendments. This would be Plaintiff’s first attempt to amend his Complaint. The only

26

basis for denying leave to amend would be the futility of amendment. The Court finds it

27

highly unlikely that Plaintiff would be able to amend this claim to truthfully allege a

28

sufficiently serious deprivation or any Defendants’ deliberate indifference to it given how
19
17CV1454 AJB (BGS)

1

far removed Plaintiff’s current allegations are from an objectively sufficiently serious

2

deprivation of the “minimal civilized measure of life’s necessities.” Farmer, 511 U.S. at

3

834. Plaintiff’s new allegation that his cell in administrative segregation was cold is not

4

alone sufficient. Even with Plaintiff’s new allegations of weight loss resulting in part

5

from the stress of being cold, he has not stated a claim, particularly given his allegations

6

that he lost weight because he was refusing to eat. Keenan v. Hall, 83 F.3d 1083, 1091

7

(9th Cir. 1996)(acknowledging Eighth Amendment guarantees adequate heating, but does

8

not require comfortable temperature). However, given all the other factors weigh in favor

9

of amendment and it is not absolutely clear that amendment would be futile, the Court

10

RECOMMENDS Plaintiff be given leave to amend his Eighth Amendment claim.

11

CONCLUSION

12

For the reasons outlined above, IT IS RECOMMENDED that the District Court

13

issue an Order: (1) Approving and Adopting this Report and Recommendation;

14

(2) GRANTING Defendants’ Motion to Dismiss. (ECF No. 18.)

15

IT IS HEREBY ORDERED that any written objections to this Report must be filed

16

with the Court and served on all parties no later than August 29, 2018. The document

17

should be captioned “Objections to Report and Recommendation.”

18

IT IS FURTHER ORDERED that any reply to the objection shall be filed with the

19

Court and served on all parties no later than September 5, 2018. The parties are advised

20

that the failure to file objections within the specified time may waive the right to raise those

21

objections on appeal of the Court’s order. See Turner v. Duncan, 158 F.3d 449, 455 (9th

22

Cir. 1998).

23
24
25

IT IS SO ORDERED.
Dated: August 8, 2018

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17CV1454 AJB (BGS)