Moe v. NNCC et al

Filing 3

ORDER denying as moot 1 Motion/Application for Leave to Proceed in forma pauperis. Clerk shall file Complaint 1 -1. Complaint is dismissed, without leave to amend. Certificate of Appealability is DENIED. Clerk shall enter judgment and close case. Signed by Judge Robert C. Jones on 5/20/15. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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______________________________________
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MICHAEL JOHN MOE,
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Plaintiff,
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vs.
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MORTHERN NEVADA CORRECTIONAL )
CENTER et al.,
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Defendants.
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3:14-cv-00689-RCJ-VPC
ORDER

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This is a prisoner civil rights complaint pursuant to 42 U.S.C. § 1983. The Court now

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screens the Complaint under 28 U.S.C. § 1915A and dismisses it, without leave to amend.

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I.

FACTS AND PROCEDURAL HISTORY

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Plaintiff has sued multiple defendants for events that took place while he was

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incarcerated at Northern Nevada Correctional Center (“NNCC”). (See Compl., ECF No. 1-1).

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Plaintiff names NNCC, Warden I. Baca, Associate Warden Lisa Walsh, Sgt. Eugene Murguia,

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Sgt. Rocky Baros, Senior Correctional Officer Roberson, Senior Correctional Officer Ralston,

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Senior Correctional Officer Richard Shepherd, and John Doe as Defendants.

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In August 2012, Plaintiff’s girlfriend mailed Plaintiff a football schedule from Reno,

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Nevada. (Id. 4). On August 20, 2012, Plaintiff received the entire football schedule except pages

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17 through 30. (Id.). On August 21, 2012, Plaintiff sent a kite to the mail room supervisor,

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Roberson, about the missing pages of the football schedule. (Id.). On August 23, 2012,

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Roberson responded, “Don’t waste my time with this nonsense. Contact postmaster for lost

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items. All mail is issued daily.” (Id.). After a month and half, Plaintiff still had not received the

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last pages of the football schedule from his girlfriend or mailings from NBC affiliates even

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though they both had mailed the football schedule to Plaintiff multiple times. (Id. 5).

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On October 11, 2012, Plaintiff received an unauthorized mail notification from the mail

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room which included a letter from October 1, 2012 and the missing pages of the football

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schedule. (Id.). That same day, Plaintiff submitted a response to Roberson, as instructed by the

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unauthorized mail notification. (Id.). In the response, Plaintiff stated that he would “grieve

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unauthorized mail.”(Id. 8). Roberson received the response on the morning of October 12, 2012.

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(Id. at 5). Around 10 a.m. that morning, prison officials searched Plaintiff’s room and wrote him

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up for being in possession of a football schedule. (Id.). Plaintiff was not present during the

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search. (Id.). Baros reported that he had found betting slips with picks and bet amounts and an

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unauthorized lamp in Plaintiff’s shared room. (Id. 5-6).

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On October 14, 2012, Plaintiff received a write up for MJ-26, possession of contraband

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(i.e. the football schedule) and G-3, gambling. (Id. 6). On October 15, 2012, Sgt. Murguia called

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Plaintiff to the disciplinary office at 1:30 p.m. and told Plaintiff that he was giving Plaintiff a

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courtesy 24-hour notice for Plaintiff’s disciplinary hearing. (Id.). On October 16, 2012, Sgt.

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Murguia held Plaintiff’s disciplinary hearing at 9:30 a.m. (Id.). Sgt. Murguia did not permit

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Plaintiff to have any witnesses or cross-examination. (Id.). Sgt. Murguia only presented the

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write-up as evidence during the hearing. (Id.). Sgt. Murguia did not record the entire hearing.

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(Id.). Sgt. Murguia found Plaintiff guilty and sentenced him to nine months disciplinary

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segregation, a 15-day consecutive disciplinary segregation sentence, and 90 days of forfeited stat

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time. (Id. 7). Sgt. Murguia also transferred Plaintiff to a Southern Desert Correctional Center,

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400 miles away from his girlfriend. (Id.).

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Count I for First Amendment retaliation alleges that Roberson targeted Plaintiff when

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Plaintiff responded that he was going to file a grievance with respect to the unauthorized mail.

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(Id. 9). Plaintiff alleges that Defendants chilled his First Amendment rights when they searched

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his room, wrote him up, put him in the hole, took stat time from him, and transferred him 400

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miles away. Count II alleges First, Fifth, Eighth, and Fourteenth Amendment violations. (Id.

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12). Count III alleges Fifth and Fourteenth Amendment violations. (Id. 15). Plaintiff claims he

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had no betting slips and that the football schedules were not parlay cards. (Id.). The Court

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interprets the allegations in the complaint as claims for First Amendment retaliation and

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procedural due process.

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II.

LEGAL STANDARDS

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District courts must screen cases in which a prisoner seeks redress from a governmental

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entity or its officers or employees. 28 U.S.C. § 1915A(a). A court must identify any cognizable

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claims and must dismiss claims that are frivolous, malicious, insufficiently pled, or directed

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against immune defendants. See id. § 1915A(b)(1)–(2). Pleading standards are governed by Rule

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12(b)(6). Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). When a court dismisses a

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complaint upon screening, the plaintiff should be given leave to amend the complaint with

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directions as to curing its deficiencies, unless it is clear from the face of the complaint that the

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deficiencies could not be cured by amendment. Cato v. United States, 70 F.3d 1103, 1106 (9th

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Cir. 1995). To state a claim under § 1983, a plaintiff must allege: (1) that a right secured by the

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Constitution or laws of the United States was violated; and (2) that the alleged violation was

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committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

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III.

ANALYSIS

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A.

First Amendment Retaliation

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Prisoners have a First Amendment right to file prison grievances and pursue civil rights

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litigation in the courts. Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2004). “Without those

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bedrock constitutional guarantees, inmates would be left with no viable mechanism to remedy

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prison injustices. And because purely retaliatory actions taken against a prisoner for having

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exercised those rights necessarily undermine those protections, such actions violate the

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Constitution quite apart from any underlying misconduct they are designed to shield.” Id.

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(emphasis added). To state a viable First Amendment retaliation claim in the prison context, a

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plaintiff must allege: “(1) [a]n assertion that a state actor took some adverse action against an

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inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the

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inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a

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legitimate correctional goal.” Id. at 567–68.
Plaintiff states no colorable First Amendment retaliation claim, and the allegations he

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makes in the Complaint show that amendment would be futile. Plaintiff admits he informed

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Roberson that he had not received a complete football schedule, but only a partial one. He also

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appears to admit that the item was contraband. Even assuming the search for the football

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schedule and related items was partly motivated by Plaintiff’s threat of filing a grievance,

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confiscation of the contraband item (the partial football schedule) that Plaintiff had admitted to

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possessing was not purely retaliatory because it reasonably advanced the legitimate correctional

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goal of preventing gambling amongst inmates. See id. at 567–58; Barnett v. Centoni, 31 F.3d

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813, 815–16 (9th Cir. 1994).

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B.

Procedural Due Process

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“Prisoners may . . . claim the protections of the Due Process Clause [and] may not be

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deprived of life, liberty, or property without due process of law.” Wolff v. McDonnell, 418 U.S.

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539, 556 (1974). Still, because prisoners have already been convicted, “the full panoply of rights

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due a defendant in [criminal] proceedings does not apply. [Rather], there must be mutual

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accommodation between institutional needs and objectives and the provisions of the Constitution

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that are of general application.” Id. (citations omitted). When a prisoner faces disciplinary

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charges, prison officials must provide the prisoner with: (1) a written statement at least twenty-

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four hours before the disciplinary hearing that includes the charges, a description of the evidence

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against the prisoner, and an explanation for the disciplinary action taken; (2) an opportunity to

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present documentary evidence and call witnesses, unless calling witnesses would interfere with

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institutional security; and (3) legal assistance where the charges are complex or the inmate is

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illiterate. See id. at 563–70.

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However, no Wolff-type due process protections apply unless the result of the hearing is a

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punishment that impairs a constitutionally cognizable liberty interest as defined in Sandin v.

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Connor, 515 U.S. 472 (1995). Under Sandin, segregation within prison does not in and of itself

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constitute a deprivation of a constitutionally cognizable liberty interest. E.g., Luken v. Scott, 71

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F.3d 192, 193 (5th Cir. 1997); Rimmer-Bey v. Brown, 62 F.3d 789, 790–91 (6th Cir. 1995).

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Although Sandin concerned administrative segregation, it applies with equal force to disciplinary

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segregation, because the State’s motivation is not relevant to the antecedent inquiry: whether the

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result of the segregation deprives the prisoner of a constitutionally cognizable liberty interest. If

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the answer to that antecedent question is “no,” then no procedures at all are constitutionally

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“due,” and a due process claim necessarily fails. Just as a prison cannot avoid the strictures of

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the Due Process Clause simply by labeling segregation as “protective” or “administrative,” a

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prisoner cannot invoke the Clause simply by characterizing segregation as “disciplinary” or

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“punitive.” No matter how a prisoner’s segregation (or other deprivation) is labeled by the

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prison or characterized by the prisoner, a court must examine the substance of the alleged

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deprivation and determine whether it constitutes an “atypical and significant hardship on the

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inmate in relation to the ordinary incidents of prison life” before it determines whether Wolff-

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type procedural protections apply. Sandin, 515 U.S. at 484.

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Showing that a deprivation is “atypical” with respect to the hardships of ordinary prison

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life is difficult, because prison conditions are typically harsh. Prisoners are by definition

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segregated from the public at large, and they are typically segregated even from other prisoners

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for the vast majority of any given day, except for perhaps one other cell mate. Indeed, the Court

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of Appeals has noted that “it would be difficult (we do not say impossible) to make disciplinary

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segregation sufficiently more restrictive than the conditions of the general population . . . to

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count as an atypical and significant deprivation of liberty[.]” Serrano v. Francis, 345 F.3d 1071,

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1078 (9th Cir. 2003) (Aldisert, J.) (quoting Wagner v. Hanks, 128 F.3d 1173, 1174 (7th Cir.

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1997)) (alterations in original). A court in this Circuit looks at three factors under Sandin: “(1)

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whether the conditions of confinement mirrored those conditions imposed upon inmates in

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analogous discretionary confinement settings, namely administrative segregation and protective

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custody[;] (2) the duration and intensity of the conditions of confinement; and (3) whether the

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change in confinement would inevitably affect the duration of [the prisoner’s] sentence.” See

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Chappell v. Mandeville, 706 F.3d 1052, 1064–65 (9th Cir. 2013) (second alteration in original;

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internal quotation marks omitted). In other words, if the conditions in segregation are worse than

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those a prisoner will typically encounter in prison, the Court must still consider whether the

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conditions are extreme enough in nature and duration or whether they will necessarily affect the

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length of a prisoner’s sentence. Segregation may lead to a cognizable deprivation of liberty, for

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example, if the conditions of segregation, although not in themselves harsh enough to implicate a

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cognizable liberty interest, result in the deprivation of some other interest particular to the

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aggrieved prisoner. See Serrano, 345 F.3d at 1074, 1078–79 (finding that segregation of a

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partially paralyzed plaintiff for almost three months to an area where he could not use the

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wheelchair he was permitted in the general population, such that he could not shower and had

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difficulty using the bathroom and the bed, implicated a cognizable liberty interest).

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Plaintiff here alleges only the pure fact of segregation and its duration, not that the

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conditions of segregation were materially worse than in administrative segregation or protective

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custody. The Court therefore dismisses the due process claim. In some cases, the Court would

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give leave to amend to allege facts indicating that the conditions he experienced in disciplinary

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segregation were atypically harsh with respect to conditions in the general population,

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administrative segregation, or protective custody. Here, however, amendment is futile, because

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Plaintiff has alleged that one result of Sgt. Murguia’s ruling was the loss of 90 days of good time

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credits, resulting in a longer prison sentence. Sgt. Murguia’s ruling therefore cannot be the basis

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of a § 1983 action unless and until reversed on appeal or vacated via writ of habeas corpus. See

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Edwards v. Balisok, 520 U.S. 641, 645–48 (1997) (citing Heck v. Humphrey, 512 U.S. 477, 486–

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87 (1994).

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CONCLUSION

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IT IS HEREBY ORDERED that the Motion for Leave to Proceed in Forma Pauperis

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(ECF No. 1) and the Motion for Appointment of Counsel (ECF No. 1-2) are DENIED as moot.
IT IS FURTHER ORDERED that the Clerk shall DETACH and FILE the Complaint

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(ECF No. 1-1).
IT IS FURTHER ORDERED that the Complaint is DISMISSED, without leave to

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amend.

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IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED.

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IT IS FURTHER ORDERED that the Clerk shall enter judgment and close the case.

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IT IS SO ORDERED.
Dated this 20th day of May, 2015.

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_____________________________________
ROBERT C. JONES
United States District Judge

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