Shallowhorn v. Lopez et al

Filing 16

ORDER DISMISSING Second Amended Complaint (ECF 9 ) Without Leave to Amend, Denying as Moot Other Motions (ECF 12 & 13 ), and Closing Case. Signed by District Judge Andrew G. Schopler on 4/4/2024.(All non-registered users served via U.S. Mail Service along with ECF 5 and 8 )(jms)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA
Alfred E. SHALLOWHORN,

Case No.: 23-cv-1273-AGS-KSC
Plaintiff,

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ORDER DISMISSING SECOND
AMENDED COMPLAINT (ECF 9)
WITHOUT LEAVE TO AMEND,
DENYING AS MOOT OTHER
MOTIONS (ECF 12 & 13), AND
CLOSING CASE

v.
R. LOPEZ, et al.,
Defendants.

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After his third unsuccessful bite at the apple, the second amended complaint of

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incarcerated pro se plaintiff Alfred E. Shallowhorn is dismissed without leave to amend.

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A.

Standard of Review

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In conducting the required screening of Shallowhorn’s complaint, the Court must

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dismiss any portion that is frivolous, malicious, fails to state a claim, or seeks damages

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from immune defendants. Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000)

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(en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004

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(9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).

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B.

Shallowhorn’s Allegations

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The second amended complaint alleges the same basic facts as in previous iterations,

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with a few additional details that nudge it no closer to stating a claim. Specifically,

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Shallowhorn alleges:

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In 2015, after working in the unsanitary prison kitchen, Shallowhorn was diagnosed

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with “H. pylori, a bacterial infection.” (ECF 9, at 9.) He blamed defendant Officer Lopez,

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to whom he gave several prison forms alleging discrimination, bias, and racial prejudice—

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but Lopez threw these away in violation of prison rules. (Id.) Later Lopez wrote

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Shallowhorn up for refusing to serve lunch outside. (Id. at 10.) At the disciplinary hearing,

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presided over by defendant Officer Castillo, Shallowhorn “agree[d]” to “only” 30 days’

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loss of yard privileges with the understanding that he “won’t be put back in kitchen (verbal

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agreement).” (Id. at 11–12.) Years later, after finding himself again assigned to culinary
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duty in October 2022, he persuaded the officer in charge there to excuse him from work

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until he could secure reassignment. (Id. at 12–14.) But on November 22, 2022, Lopez was

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covering for that accommodating officer, and when plaintiff declined to do kitchen work—

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citing the arrangements he had made—Lopez wrote him up for refusing his assignment.

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(Id. at 15–17.) Shallowhorn disputes that he had any obligation to do such work because

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there was no “signed consented agreement” to do so. (Id. at 19.) He claims that Lopez

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brought the charge as an act of racial discrimination and “in retaliation from [the] 2015

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incident.” (Id. at 16–18.) Shallowhorn claims this resulted in his being wrongfully deprived

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of custody credits, which caused physical, mental, and emotional stress and anxiety. (Id.

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at 20–21.) He further alleges Lopez then conspired with two other officers to harass him

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for filing grievances, which resulted in his also being “found guilty” of “possession of

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alcohol” and losing further privileges and credits. (Id. at 22–23.)

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According to Shallowhorn, defendant Officers Din, Castillo, and Mosely were

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obliged to correct these violations of his rights but failed to do so, due to his status as “a

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class of one convicted of a crime.” (Id. at 29–30.) In finding Shallowhorn guilty, Din should

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have “address[ed] the procedural requirements” for work assignments. (Id. at 25.) Mosely

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declined to reduce or expunge the work-refusal charge, saying Shallowhorn “didn’t provide

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any evidence” of the 2015 “verbal agreement.” (Id. at 31–32.) Finally, defendant warden

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Guzman should have interceded after Shallowhorn wrote him a complaint letter. (Id.

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at 32–33.) This all “caused” Shallowhorn “physical harm” when he went on a “hunger

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strike” to protest these perceived injustices. (Id. at 23–24.)

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C.

Discussion

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Presented with no new material factual allegations, the Court is largely left to

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recapitulate its earlier conclusions. Most of Shallowhorn’s grievances stem from his claim

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that it was “illegal” for him to be expected to work without signing a “workers agreement,”

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so his write-up and subsequent discipline were wrongful. (See ECF 9, at 16–17.) But

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“a prisoner does not have a constitutional right to be free from wrongfully issued

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disciplinary reports.” Buckley v. Gomez, 36 F. Supp. 2d 1216, 1222 (S.D. Cal. 1997). And
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Shallowhorn received at least one hearing on this issue (see ECF 9, at 25); “federal due

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process protections are contained in the ensuing disciplinary proceedings themselves.”

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Gadsden v. Gehris, No. 20-cv-0470-WQH-DEB, 2020 WL 5748094, at *8 (S.D. Cal.

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Sept. 25, 2020). Furthermore, there was at least “some evidence” to support a guilty finding

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on charges of refusing to work and possessing alcohol, and Shallowhorn has not argued

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otherwise. See Superintendent v. Hill, 472 U.S. 445, 457 (noting that even “meager”

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evidence can suffice). Most importantly, Shallowhorn still does not plausibly allege denial

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of procedural due process, since he does not identify a protected liberty interest that was at

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stake, or any missing procedural protection under Wolff v. McDonnell, 418 U.S. 539,

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564–71 (1974). (See ECF 5, at 4–6.) Likewise, no substantive-due-process claim is stated

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by the bare allegation that prison regulations were applied in a manner contrary to an

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inmate’s interpretation of them. (See id. at 6–7.)

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To the extent Shallowhorn seeks to revive the Eighth Amendment conditions-of-

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confinement claim from his original complaint, it again fails. He claims he was subjected

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to: unsanitary work conditions that resulted in a 2015 bacterial infection; disciplinary

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reports and actions he believes were motivated by racial prejudice; disrespect of his right

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to refuse a work assignment; false charges of possessing alcohol; and the loss of custody

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credits, yard time, and other prison privileges. (See ECF 9, at 20–24.) None of these meet

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the objective test—“deprivations of basic human needs” or “the minimal civilized measure

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of life’s necessities.” See Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Nor has

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Shallowhorn plausibly alleged that an official acted in a way that meets the subjective test

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of “deliberate indifference” to inmate health and safety. See Farmer v. Brennan, 511 U.S.

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825, 834 (1994); (see also ECF 5, at 7–8).

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And Shallowhorn again fails to state an equal-protection claim, since he has not

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alleged membership in a protected class. (See ECF 5, at 8.) Shallowhorn alleges only that

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he is “a class of one convicted of a crime.” (ECF 9, at 30.) “[N]either prisoners nor persons

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convicted of crimes constitute a suspect class for equal protection purposes.” United States

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v. Whitlock, 639 F.3d 935, 941 (9th Cir. 2011). And a “class of one” claim—if that’s instead
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what he means to allege—requires allegations of being “intentionally treated differently

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from others similarly situated” with no “rational basis for the difference in treatment.”

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Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Shallowhorn claims prison

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rules provide for a “tier[ed]” system of punishments of increasing severity, and seems to

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accuse Mosely of unfairly skipping to the harshest one—thereby “treating plaintiff

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[]different to” other inmates disciplined for “kitchen related or work related incidents.”

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(ECF 9, at 31.) Even if Mosely did treat him differently, Shallowhorn does not plausibly

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allege there was no rational basis to do so. Shallowhorn even relates Mosely’s stated

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reasoning that “there is no mandate of any certain order of discipline.” (Id.)

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D.

Disposition and Denial of Leave to Amend

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Based on the foregoing, the Court dismisses the complaint for failure to state a claim.

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A district court may deny leave to amend due to a plaintiff’s “repeated failure to cure

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deficiencies by amendments previously allowed.” Leadsinger, Inc. v. BMG Music Pub.,

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512 F.3d 522, 532 (9th Cir. 2008) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).

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After being advised twice of the precise deficiencies in his pleading, Shallowhorn only

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added immaterial factual details that did nothing to address its root infirmities. Shallowhorn

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was cautioned that if he failed “yet again” to state a claim, his case could be dismissed.

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(See ECF 8, at 2.) This has come to pass.

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CONCLUSION

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The second amended complaint is DISMISSED without leave to amend.

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Shallowhorn’s other motions (ECF 12 & ECF 13) are DENIED AS MOOT. The Clerk is

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directed to issue a judgment and to close this case.

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The Clerk must send Shallowhorn a copy of the Court’s previous two orders, at

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ECF 5 and ECF 8, when sending this order.

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Dated: April 4, 2024

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___________________________

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Andrew G. Schopler
United States District Judge

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