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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I 2 3 4 5 CLERK US DISTRICT COURT , SOUTHERN DIStRICT OF CALIFOR~llA B_Y (UIJl DEPUTY 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 11 Case No.: I 7-cv-1454-AJB-BGS Arthur Lee Smart, Plaintiff, 12 13 v. 14 E. Ortiz, et al., Defendants. 15 16 ORDER: (1) ADOPTING THE REPORT AND RECOMMENDATION (Doc. No. 29); (2) GRANTING DEFENDANTS' MOTION TO DISMISS (Doc. No. 18); and 17 (3) DISMISSING PLAINTIFF'S COMPLAINT (Doc. No.1). 18 19 20 Before the Court is Magistrate Judge Skomal' s report and recommendation ("R&R") 21 on Defendants' motion to dismiss Plaintiffs complaint. The R&R recommends the Court 22 grant the dismissal motion and dismiss Plaintiffs complaint. (Doc. No. 29.) For the reasons 23 stated herein, the Court ADOPTS the R&R's holdings, GRANTS Defendants' dismissal 24 motion, and DISMISSES Plaintiffs complaint without leave to amend. 25 I. LEGAL STANDARDS 26 "The court shall make a de novo determination of those portions of the [report and 27 recommendation] to which objection is made." 28 U.S.C. ยง 636(b)(I). The "statute makes 28 it clear that the district judge must review the magistrate judge's findings and l 7-cv-1454-AJB-BGS 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 3 v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n. 5 (D. Ariz. 2003) (applying Reyna- 4 Tapia to habeas review). II. 5 BACKGROUND 6 Plaintiff brings this lawsuit complaining of: (1) a due process violation stemming 7 from a disciplinary hearing in which he neither received timely notice of nor was able to 8 call witnesses; and (2) an Eighth Amendment violation for cruel and unusual punishment 9 resulting from said hearing. (Doc. No. 1 at 5-8.) Essentially, Plaintiff alleges that during 10 an inmate search, an officer found marijuana, asked Plaintiff if it was his, Plaintiff 11 responded it was not, but the officer wrote him up anyways. (Id. at 5.) Another officer, A. 12 Silva, gave Plaintiff a Rules Violation Report, or RVR, to sign to indicate he wanted a 13 delayed hearing and review by a prosecutor. (Id. at 5-6.) Plaintiff signed it, but later noticed 14 that the RVR was not his. (Id. at 6.) Plaintiff was unable to obtain a copy of his RVR before 15 his hearing, which he explained at the hearing. (Id. at 6, 9.) Despite this, the hearing 16 continued, and Plaintiff was unable to call any witnesses-such as other inmates in the 17 room when the marijuana was found-and was found guilty of marijuana possession. 18 (Id. at 7, 9.) As a result, Plaintiff was given numerous repercussions, including a loss of 19 visits for one year, nine months in segregated housing, inability to participate in 20 rehabilitation, employment, and recreated, and an inmate level change from Level III to 21 Level IV. (Id. at 9-11.) 22 III. DISCUSSION 23 Defendants moved to dismiss on two grounds: (1) res judicata; and (2) failure to 24 state a claim. The R&R analyzes both arguments and recommends this Court grant 25 dismissal on both grounds. For the reasons stated below, the Court agrees. Res Judicata 26 A. 27 Defendants argue that Plaintiffs due process claim is procedurally barred through 28 res judicata as Plaintiff raised the same claim in his state court habeas proceedings. Plaintiff 2 l 7-cv-1454-AJB-BGS 1 concedes as much, arguing that although he did raise the issue in state court, he did not 2 receive a full and fair hearing. The R&R finds that Plaintiffs claim is precluded as it meets 3 the three requirements. (Doc. No. 29 at 6.) "[C]laim preclusion arises if a second suit 4 involves: (1) the same cause of action (2) between the same parties or parties in privity 5 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 8 only discuss the final prong, and finds that the first two prongs are well reasoned. 9 Regarding the third prong, Plaintiff claims that although the state courts reached a 10 final decision on the merits of his claim, he never received a full and fair hearing on his 11 claims. (Id. at 10.) Looking to the Ninth Circuit, the R&R notes that "reasoned denials of 12 California habeas petitions ... do have a claim preclusive effect." (Doc. No. 29 at 10 (citing 13 Gonzalez v. Cal. Dep't ofCorrs., 739 F.3d 1226, 1230 (9th Cir. 2014)).) The R&R states 14 that each decision the California courts reached "recognized [Plaintiffs] challenge based 15 on lack of timely notice, i.e. did not receive his RVR before the hearing, and den[ied] 16 relief." (Doc. No. 29 at 10.) The Superior Court indeed twice rejected Plaintiffs claims 17 around being unable to call witnesses. (Id. at 10-11.) The R&R, in its analysis, states that 18 "Plaintiff appears to be arguing that because he did not receive an evidentiary hearing in 19 the state court proceedings, his Due Process claim is not precluded." (Id. at 11.) The R&R 20 concludes by stating Plaintiff did not provide any supporting case law that an evidentiary 21 hearing is required, and further, the Ninth Circuit-in two recent decisions-fails to 22 suggest anything to the contrary. (Id.) Thus, the R&R finds that this prong is satisfied, and 23 along with the other two, concludes that Plaintiffs claim is barred. 24 In his objection, Plaintiff argues that his due process rights were violated because he 25 was not given notice before the hearing and because he was unable to call witnesses during 26 the hearing. (Doc. No. 35 at 11-12.) Plaintiff correctly relies on a Supreme Court case to 27 support his claim that notice must be provided at least 24 hours before a disciplinary 28 hearing. (Id. at 11 (citing to Wolffv. McDonnell, 418 U.S. 539, 564 (1974)).) However, 3 l 7-cv-1454-AJB-BGS 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. 3 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 5 full defense, including testimony of witnesses. (Id. at 12 (citing to Kremer v. Chemical 6 Construction Corp., 456 U.S. 461, 483 (1982)).) However, preceding the section Plaintiff 7 quotes, the Court states "[u]nder New York law, a claim of employment discrimination 8 requires the NYHRD to investigate whether there is 'probable cause' to believe that the 9 complaint is true. Before this determination of probable cause is made, the claimant is 10 entitled ... "to said defense, including witness testimony. Kremer, 461 U.S. at 483. Clearly, 11 Plaintiffs case is distinguishable as this case involves constitutional rights and not 12 employment law, and the Court is applying California law rather than New York law. 13 Plaintiff failed to rebut the R&R's finding that he was entitled, under the 14 Constitution, to an evidentiary hearing. Finding that R&R' s conclusion that Plaintiffs due 15 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 17 B. 18 Plaintiff alleges that consequences of his disciplinary hearing violated the Eighth Eighth Amendment Claim 19 Amendment as cruel and unusual punishment. To show an Eighth Amendment violation 20 based on conditions of confinement, both an objective and subjective prong must be 21 proven.Fosterv. Runnels, 554 F.3d 807, 812 (9th Cir. 2009);Farmerv. Brennan, 511 U.S. 22 825, 832 (1994). The R&R finds that under the objective prong, none of the restrictions 23 Plaintiff complains of"rise to the level of a denial of these 'the minimal civilized measure 24 of life's necessities."' (Doc. No. 29 at 18 (quoting Rhodes v. Chapman, 452 U.S. 337, 347 25 26 1 Although the R&R also discusses Plaintiffs due process claim under Fed. R. Civ. P. 27 12b(6) as well, and recommends dismissing it for failure to state a claim, the Court declines to discuss it here as Plaintiff only objects to the R&R's analysis surrounding claim 28 preclusion. (Doc. No. 29at14-17.) 4 I 7-cv-I 454-AJB-BGS 1 ( 1981)). ) The types of items deemed necessary to life's necessities include "adequate food, 2 clothing, shelter, and medical care" as well as safety. (Id. (quoting Farmer v. Brennan, 511 3 U.S. 825, 832 (1994)).) The Court agrees that this prong is met. 4 As to the subjective prong, an inmate must show that the official was acting with 5 deliberate indifference, that is, the official both knew of a risk of substantial harm to the 6 inmate's health or safety and knowingly disregarded it. Thomas v. Ponder, 611 F.3d 1144, 7 1150 (9th Cir. 2010). The R&R states that Plaintiff failed to allege any such knowledge in 8 his complaint. (Doc. No. 29 at 18.) The R&R concludes that "[t]here are simply no 9 allegations in the complaint that any Defendant was aware of any serious harm to Plaintiffs 10 health or safety." (Id. at 19.) 11 Plaintiff objects, stating that Defendants "deliberately denied or delay[ ed] an inmate 12 medical treatment," and thus alleges that Defendants deprived him by being deliberately 13 indifferent to his medical needs. (Doc. No. 35 at 14.) While Plaintiff is correct that such 14 knowledge and deprivation of treatment would be considered deliberate indifference, he 15 did not raise a deliberate indifference to medical needs claim in his complaint and there are 16 no supporting allegations as such. (Doc. No. 1 at 9-11.) Plaintiff goes on to state the guards 17 interfered with his legal material causing a mental break, resulting in Plaintiff not eating 18 and losing 60 pounds. (Doc. No. 35 at 15.) Again, there is no support for such contentions 19 in the complaint. 20 The Court finds the R&R's conclusions that Plaintiff failed to state an Eighth 21 Amendment claim well-reasoned and thorough. Thus, the Court ADOPTS the R&R's 22 conclusions and DISMISSES Plaintiffs cruel and unusual punishment claim. 23 Ill 24 Ill 25 Ill 26 Ill 27 Ill 28 Ill 5 l 7-cv-1454-AJB-BGS IV. 1 CONCLUSION 2 Because Plaintiff both cannot overcome claim preclusion for his due process claim 3 and fails to state a claim under the Eighth Amendment, the Court ADOPTS the reasoning 4 of the R&R, (Doc. No. 29), GRANTS Defendants' motion to dismiss, (Doc. No. 18), and 5 DISMISSES Plaintiffs complaint, (Doc. No. 1). The Court Clerk is instructed to close the 6 case. 7 IT IS SO ORDERED. 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 l 7-cv-1454-AJB-BGS

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