Arthur Lee Smart v. E. Ortiz et al

Filing 37

ORDER ADOPTING REPORT AND RECOMMENDATION; Granting Defendants' 18 Motion to Dismiss and Dismissing Plaintiff's Complaint. Signed by Judge Janis L. Sammartino for Judge Anthony J. Battaglia on 3/15/2019.(ag) Modified on 3/19/2019 to note that all non-registered users were mailed a copy of this order (ag).

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CLERK US DISTRICT COURT
, SOUTHERN DIStRICT OF CALIFOR~llA
B_Y
(UIJl
DEPUTY

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: I 7-cv-1454-AJB-BGS

Arthur Lee Smart,
Plaintiff,

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v.

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E. Ortiz, et al.,
Defendants.

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ORDER:
(1) ADOPTING THE REPORT AND
RECOMMENDATION (Doc. No. 29);
(2) GRANTING DEFENDANTS'
MOTION TO DISMISS (Doc. No. 18);
and

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(3) DISMISSING PLAINTIFF'S
COMPLAINT (Doc. No.1).

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Before the Court is Magistrate Judge Skomal' s report and recommendation ("R&R")

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on Defendants' motion to dismiss Plaintiffs complaint. The R&R recommends the Court

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grant the dismissal motion and dismiss Plaintiffs complaint. (Doc. No. 29.) For the reasons

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stated herein, the Court ADOPTS the R&R's holdings, GRANTS Defendants' dismissal

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motion, and DISMISSES Plaintiffs complaint without leave to amend.

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I.

LEGAL STANDARDS

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"The court shall make a de novo determination of those portions of the [report and

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recommendation] to which objection is made." 28 U.S.C. § 636(b)(I). The "statute makes

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it clear that the district judge must review the magistrate judge's findings and

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1 recommendations de novo if objection is made, but not otherwise." United States v. Reyna2

Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en bane) (emphasis in original); see Schmidt

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v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n. 5 (D. Ariz. 2003) (applying Reyna-

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Tapia to habeas review).

II.

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BACKGROUND

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Plaintiff brings this lawsuit complaining of: (1) a due process violation stemming

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from a disciplinary hearing in which he neither received timely notice of nor was able to

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call witnesses; and (2) an Eighth Amendment violation for cruel and unusual punishment

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resulting from said hearing. (Doc. No. 1 at 5-8.) Essentially, Plaintiff alleges that during

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an inmate search, an officer found marijuana, asked Plaintiff if it was his, Plaintiff

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responded it was not, but the officer wrote him up anyways. (Id. at 5.) Another officer, A.

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Silva, gave Plaintiff a Rules Violation Report, or RVR, to sign to indicate he wanted a

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delayed hearing and review by a prosecutor. (Id. at 5-6.) Plaintiff signed it, but later noticed

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that the RVR was not his. (Id. at 6.) Plaintiff was unable to obtain a copy of his RVR before

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his hearing, which he explained at the hearing. (Id. at 6, 9.) Despite this, the hearing

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continued, and Plaintiff was unable to call any witnesses-such as other inmates in the

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(Id. at 7, 9.) As a result, Plaintiff was given numerous repercussions, including a loss of

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visits for one year, nine months in segregated housing, inability to participate in

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rehabilitation, employment, and recreated, and an inmate level change from Level III to

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Level IV. (Id. at 9-11.)

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III.

DISCUSSION

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Defendants moved to dismiss on two grounds: (1) res judicata; and (2) failure to

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state a claim. The R&R analyzes both arguments and recommends this Court grant

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dismissal on both grounds. For the reasons stated below, the Court agrees.
Res Judicata

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A.

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Defendants argue that Plaintiffs due process claim is procedurally barred through

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res judicata as Plaintiff raised the same claim in his state court habeas proceedings. Plaintiff
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1 concedes as much, arguing that although he did raise the issue in state court, he did not
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receive a full and fair hearing. The R&R finds that Plaintiffs claim is precluded as it meets

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the three requirements. (Doc. No. 29 at 6.) "[C]laim preclusion arises if a second suit

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involves: (1) the same cause of action (2) between the same parties or parties in privity

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with them (3) after a final judgment on the merits of the first suit." DKN Holdings LLC v.

6 Faerber, 61 Cal. 4th 813, 824 (2015). In his objection, Plaintiff does not dispute the first
7 two prongs, only taking issue with the final one. (Doc. No. 35 at 10.) Thus, the Court will
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only discuss the final prong, and finds that the first two prongs are well reasoned.

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Regarding the third prong, Plaintiff claims that although the state courts reached a

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final decision on the merits of his claim, he never received a full and fair hearing on his

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claims. (Id. at 10.) Looking to the Ninth Circuit, the R&R notes that "reasoned denials of

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California habeas petitions ... do have a claim preclusive effect." (Doc. No. 29 at 10 (citing

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Gonzalez v. Cal. Dep't ofCorrs., 739 F.3d 1226, 1230 (9th Cir. 2014)).) The R&R states

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that each decision the California courts reached "recognized [Plaintiffs] challenge based

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on lack of timely notice, i.e. did not receive his RVR before the hearing, and den[ied]

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relief." (Doc. No. 29 at 10.) The Superior Court indeed twice rejected Plaintiffs claims

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around being unable to call witnesses. (Id. at 10-11.) The R&R, in its analysis, states that

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"Plaintiff appears to be arguing that because he did not receive an evidentiary hearing in

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the state court proceedings, his Due Process claim is not precluded." (Id. at 11.) The R&R

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concludes by stating Plaintiff did not provide any supporting case law that an evidentiary

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hearing is required, and further, the Ninth Circuit-in two recent decisions-fails to

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suggest anything to the contrary. (Id.) Thus, the R&R finds that this prong is satisfied, and

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along with the other two, concludes that Plaintiffs claim is barred.

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In his objection, Plaintiff argues that his due process rights were violated because he

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was not given notice before the hearing and because he was unable to call witnesses during

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the hearing. (Doc. No. 35 at 11-12.) Plaintiff correctly relies on a Supreme Court case to

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support his claim that notice must be provided at least 24 hours before a disciplinary

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hearing. (Id. at 11 (citing to Wolffv. McDonnell, 418 U.S. 539, 564 (1974)).) However,
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1 this belies the fact that the state court has already considered this argument, and thus, the
2 Court today is precluded from revisiting it.
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As to his inability to call witnesses, Plaintiff incorrectly relies on another Supreme

4 Court case, which purports to hold that due process dictates a person be able to present a
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full defense, including testimony of witnesses. (Id. at 12 (citing to Kremer v. Chemical

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Construction Corp., 456 U.S. 461, 483 (1982)).) However, preceding the section Plaintiff

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quotes, the Court states "[u]nder New York law, a claim of employment discrimination

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complaint is true. Before this determination of probable cause is made, the claimant is

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entitled ... "to said defense, including witness testimony. Kremer, 461 U.S. at 483. Clearly,

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Plaintiffs case is distinguishable as this case involves constitutional rights and not

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employment law, and the Court is applying California law rather than New York law.

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Plaintiff failed to rebut the R&R's finding that he was entitled, under the

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Constitution, to an evidentiary hearing. Finding that R&R' s conclusion that Plaintiffs due

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process claim is precluded under California claim preclusion well-reasoned and thorough,

16 the Court ADOPTS it. Accordingly, the Court DISMISSES Plaintiffs due process claim. 1
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B.

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Plaintiff alleges that consequences of his disciplinary hearing violated the Eighth

Eighth Amendment Claim

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based on conditions of confinement, both an objective and subjective prong must be

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proven.Fosterv. Runnels, 554 F.3d 807, 812 (9th Cir. 2009);Farmerv. Brennan, 511 U.S.

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825, 832 (1994). The R&R finds that under the objective prong, none of the restrictions

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Plaintiff complains of"rise to the level of a denial of these 'the minimal civilized measure

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of life's necessities."' (Doc. No. 29 at 18 (quoting Rhodes v. Chapman, 452 U.S. 337, 347

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Although the R&R also discusses Plaintiffs due process claim under Fed. R. Civ. P.
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to discuss it here as Plaintiff only objects to the R&R's analysis surrounding claim
28 preclusion. (Doc. No. 29at14-17.)
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1 ( 1981)). ) The types of items deemed necessary to life's necessities include "adequate food,
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clothing, shelter, and medical care" as well as safety. (Id. (quoting Farmer v. Brennan, 511

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U.S. 825, 832 (1994)).) The Court agrees that this prong is met.

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As to the subjective prong, an inmate must show that the official was acting with

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deliberate indifference, that is, the official both knew of a risk of substantial harm to the

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inmate's health or safety and knowingly disregarded it. Thomas v. Ponder, 611 F.3d 1144,

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1150 (9th Cir. 2010). The R&R states that Plaintiff failed to allege any such knowledge in

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his complaint. (Doc. No. 29 at 18.) The R&R concludes that "[t]here are simply no

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allegations in the complaint that any Defendant was aware of any serious harm to Plaintiffs

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health or safety." (Id. at 19.)

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Plaintiff objects, stating that Defendants "deliberately denied or delay[ ed] an inmate

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medical treatment," and thus alleges that Defendants deprived him by being deliberately

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indifferent to his medical needs. (Doc. No. 35 at 14.) While Plaintiff is correct that such

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knowledge and deprivation of treatment would be considered deliberate indifference, he

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did not raise a deliberate indifference to medical needs claim in his complaint and there are

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no supporting allegations as such. (Doc. No. 1 at 9-11.) Plaintiff goes on to state the guards

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interfered with his legal material causing a mental break, resulting in Plaintiff not eating

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and losing 60 pounds. (Doc. No. 35 at 15.) Again, there is no support for such contentions

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in the complaint.

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The Court finds the R&R's conclusions that Plaintiff failed to state an Eighth

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Amendment claim well-reasoned and thorough. Thus, the Court ADOPTS the R&R's

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conclusions and DISMISSES Plaintiffs cruel and unusual punishment claim.

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Ill

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IV.

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CONCLUSION

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Because Plaintiff both cannot overcome claim preclusion for his due process claim

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and fails to state a claim under the Eighth Amendment, the Court ADOPTS the reasoning

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of the R&R, (Doc. No. 29), GRANTS Defendants' motion to dismiss, (Doc. No. 18), and

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DISMISSES Plaintiffs complaint, (Doc. No. 1). The Court Clerk is instructed to close the

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case.

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IT IS SO ORDERED.

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