Gomez v. Institutional Gang Investigations Unit et al

Filing 33

ORDER adopting Report and Recommendations re 25 Report and Recommendation.. Signed by Honorable Timothy D. DeGiusti on 12/30/2013. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MARCO GOMEZ,
Plaintiff,
v.
INSTITUTIONAL GANG
INVESTIGATIONS UNIT, et al.,
Defendants.

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Case No. CIV-13-351-D

ORDER
This matter comes before the Court for review of the Report and Recommendation
issued by United States Magistrate Judge Gary M. Purcell pursuant to 28 U.S.C.
§ 636(b)(1)(B). Upon initial screening, Judge Purcell recommends dismissal of the action
without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b) for failure of the
Second Amended Complaint to state a claim upon which relief can be granted. Plaintiff has
filed a timely written objection. Thus, the Court must make a de novo determination of the
portions of the Report to which specific objection is made, and may accept, modify, or reject
the recommended decision. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).
Plaintiff, a California inmate appearing pro se and in forma pauperis, seeks
declaratory and injunctive relief and damages under 42 U.S.C. § 1983 for the alleged
violation of his constitutional right of due process when officials of the California
Department of Corrections and Rehabilitation (CDCR) classified him as an associate of a
prison gang or disruptive group.

The classification occurred pursuant to California

regulations while Plaintiff was housed at the North Fork Correctional Facility (NFCF), a
private prison in Sayre, Oklahoma, and it resulted in his placement in administrative
segregation. Plaintiff filed suit in the United States District Court for the Eastern District of
California, but the case was transferred to this judicial district pursuant to 28 U.S.C.
§ 1406(a) to cure a perceived defect in venue.
After examining the factual allegations of the Second Amended Complaint and
attached exhibits, Judge Purcell concludes that Plaintiff has failed to allege sufficient facts
to establish personal jurisdiction over CDCR employees in this Court, that Plaintiff has failed
to allege personal participation of the NFCF warden1 in the alleged constitutional violation,
and that Plaintiff has not alleged a plausible claim of a denial of due process. The last
conclusion is based on the Supreme Court’s holding in Wilkinson v. Austin, 545 U.S. 209,
225-29 (2005), that sufficient procedural safeguards for an inmate’s maximum security
placement were provided by “informal, non-adversarial procedures,” involving notice of the
factual basis for the classification, an opportunity for rebuttal, a short statement of reasons,
and multiple levels of administrative review. It is also based on the Ninth Circuit’s holding
in Bruce v. Yist, 351 F.3d 1283, 1287 (9th Cir. 2003), that constitutional due process for a
gang classification decision under the California validation procedure at issue in this case
requires that an inmate receive notice of the charges against him and an opportunity to

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Plaintiff alleges that “Defendant. F. Figueora [sic]” is the warden of NFCF, which is accepted as
true. See Second Am. Compl. [Doc. No. 23], ¶ 13. However, Fred Figueroa is now the former warden,
having been replaced in 2012.

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present his views, and must satisfy the “some evidence” standard of Superintendent v. Hill,
472 U.S. 445, 455 (1985).
In his Objection, Plaintiff challenges each of Judge Purcell’s conclusions. Regarding
jurisdiction, Plaintiff notes that he initiated this action in California, where CDCR and its
employees are based; he contends this case should not be dismissed but, if there is a
jurisdictional problem, it should be transferred back to California. Regarding Warden
Figueroa, Plaintiff asserts that the warden was in charge of NCFC when CDCR employees
came there to conduct gang validation procedures and, therefore, he “should have known and
stopped these Due Process violations that were occurring under his authority.” See Pl.’s
Objection [Doc. No. 32] at 7. Finally, Plaintiff contends the factual allegations of his verified
pleading, together with the declarations of other inmates submitted with the Objection, show
that he did not receive “his mandatory pre-validation interview” or meeting with Institutional
Gang Investigators (IGI) before a decision was made (see id. at 2), and that false documents
were used to support his validation as a gang member. Two allegedly false documents are
described in his pleading – one report stating he refused to participate in an interview and
another report stating he received an interview.2 In Plaintiff’s view, the lack of a personal
interview violates due process.
Upon de novo consideration of the issues raised by Plaintiff’s Objection, the Court
declines to adopt the recommendation for dismissal of some defendants on jurisdictional

2

Plaintiff also alleges other documents were fabricated, but his supporting factual allegations show
that he simply disagrees with the substance of these documents.

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grounds. Although Judge Purcell is correct that the Tenth Circuit has authorized a district
court to consider personal jurisdiction and venue sua sponte under § 1915, the district court
may do so “only when the defense is obvious from the face of the complaint and no further
factual record is required to be developed” and “only if it is clear that the plaintiff can allege
no set of facts to support personal jurisdiction or venue.” Trujillo v. Williams, 465 F.3d
1210, 1217 (10th Cir. 2006) (internal quotations and citations omitted). Assuming that the
appropriate jurisdictional inquiry is sufficient minimum contacts with Oklahoma, it appears
from Plaintiff’s factual allegations that some CDCR employees were personally involved in
the “Operation Thunder Strike” validation program at NCFC, that the conduct of which
Plaintiff complains occurred in this state, and that the conduct was directed at him while he
was a resident of Oklahoma. The Court finds this case does not present the sort of limited
circumstances in which personal jurisdiction may properly be considered as part of the initial
screening under § 1915 and § 1915A.
The Court rejects, however, Plaintiff’s opposition to dismissal of Warden Figueroa.
Plaintiff’s argument on this issue makes clear that he is asserting a claim of supervisory
liability based on Warden Figueroa’s alleged failure to prevent constitutional violations by
others. On this issue, the Court cannot add significantly to Judge Purcell’s analysis. For the
reasons stated in the Report, the Court finds that the Second Amended Complaint fails to
state a plausible § 1983 claim against Defendant Figueroa.
Similarly, upon careful examination of the factual allegations of Plaintiff’s pleading,
as well as the arguments stated in his Objection, the Court finds that the Second Amended
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Complaint fails to state a plausible § 1983 claim of denial of due process. Plaintiff’s claim
hinges on the failure of CDCR employees to provide a personal interview, or meeting with
IGI officers, before the classification/validation decision was made. The Court agrees with
Judge Purcell that the alleged “mandatory pre-validation interview” on which Plaintiff relies
to establish a due process violation is not a constitutional requirement. See Pl.’s Objection
[Doc. No. 32] at 2. Further, the fact that CDCR employes may have violated California law
or regulations, or a settlement agreement in another case (see Objection at 2), does not
establish a violation of the Fourteenth Amendment. Plaintiff’s allegations make clear that
he received notice of the factual basis for the classification decision and an opportunity to
present his views, and that the decision was supported by some evidence. The informal
procedures allegedly used by CDCR officials to classify Plaintiff as an associate of a prison
gang or disruptive group satisfied the constitutional minimum required by the Due Process
Clause. Therefore, Plaintiff has failed to state a claim upon which relief may be granted
under § 1983.
For these reasons, the Court concurs in Judge Purcell’s finding that the Second
Amended Complaint should be dismissed without prejudice pursuant to 28 U.S.C.
§ 1915(e)(2)(B) and § 1915A(b). Further, when final, this dismissal should count as a “prior
occasion” for purposes of 28 U.S.C. § 1915(g).
IT IS THEREFORE ORDERED that the Report and Recommendation [Doc. No. 25]
is ADOPTED to the extent set forth herein. This action is DISMISSED without prejudice
to refiling. Judgment shall be entered accordingly.
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IT IS SO ORDERED this 30th day of December, 2013.

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