Harbert v. Deacon et al
Filing
48
OPINION AND ORDER: Motion for Judgment on the Pleadings 28 is GRANTED and plaintiffs Motion for Leave to File Second Amended Complaint 45 is DENIED. Because it is clear that the deficiencies of plaintiffs Amended Complaint and proposed Second Amended Complaint cannot be cured by amendment, this action is DISMISSED. Signed on 1/22/19 by Magistrate Judge Youlee Yim You. (Mailed copy to plaintiff) (dsg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PENDLETON DIVISION
NATHANIEL HARBERT,
Civil No. 2:17-cv-01934-YY
Plaintiff,
OPINION AND ORDER
v.
JAMES DEACON, and R.A. YOUNG,
Defendants.
YOU, Magistrate Judge.
Plaintiff, an inmate at the Two Rivers Correctional Institution (“TRCI”), brings this civil
rights action pursuant to 42 U.S.C. ' 1983 pro se. Currently before the court are defendants’
Motion for Judgment on the Pleadings (ECF # 28) and plaintiff=s Motion for Leave to File
Second Amended Complaint (ECF #45). For the reasons that follow, the court GRANTS
defendants’ Motion for Judgment on the Pleadings and DENIES plaintiff=s Motion for Leave to
File Second Amended Complaint.1
1All
parties have consented to allow a Magistrate Judge to enter final orders and judgment in this
case in accordance with Fed. R. Civ. P. 73 and 28 U.S.C. ' 636(c).
1 – OPINION AND ORDER
I.
Motion for Judgment on the Pleadings
A.
Background
Plaintiff=s claims stem from a physical altercation with a fellow inmate, Ray Thompson,
on September 13, 2017. Following a disciplinary hearing, plaintiff was found guilty of Inmate
Assault I and Disrespect I, and sanctioned to 90 days in disciplinary segregation. ECF #14, at
17. Plaintiff alleges that he was improperly found guilty of Inmate Assault I (ECF #14, at 12)
and the disciplinary proceeding failed to comport with due process requirements (ECF #11, at 6;
ECF #14, at 3). He also contends that the hearings officer, defendant James Deacon (“Deacon”),
impermissibly found he had engaged in a “mutual altercation,” although the officer who
responded to the scene, Officer McConkey, never made such a statement in his report. ECF #11,
at 2. Plaintiff further contends that Deacon attempted to “cover his foul ups” by supplementing
his order with an additional paragraph, after plaintiff had already been found guilty and had been
served with a copy of the order. ECF #11, at 2; ECF #14, at 14-15. Plaintiff seeks monetary
damages from Deacon, and defendant Captain R.A. Young for “their part” in finding him guilty
of Assault 1. ECF #14, at 5.
Defendants move for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) on two
grounds: (1) plaintiff has no protected liberty interest in remaining free from placement in
disciplinary segregation; and (2) nevertheless, attachments to plaintiff=s Amended Complaint
demonstrate that the disciplinary proceedings against plaintiff afforded him all of the process due
under the Fourteenth Amendment.
B.
Legal Standards
A party may move for judgment on the pleadings after the pleadings are closed but early
enough not to delay trial. Fed. R. Civ. P. 12(c). “Analysis under Rule 12(c) is substantially
2 – OPINION AND ORDER
identical to analysis under Rule 12(b)(6) because, under both rules, a court must determine
whether the facts alleged in the complaint, taken as true, entitle the plaintiff to a legal remedy.”
Pit River Tribe v. Bureau of Land Mgmt., 793 F.3d 1147, 1155 (9th Cir. 2015) (citation and
quotation marks omitted). Accordingly, “[a] judgment on the pleadings is properly granted
when, taking all allegations in the pleadings as true, the moving party is entitled to judgment as a
matter of law.” Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001)
(quotation marks omitted).
To survive a motion for judgment on the pleadings, “the non-conclusory ‘factual content’
[of the complaint],” and reasonable inferences from that content, “must be plausibly suggestive
of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.
2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “[O]nce a claim
has been stated adequately, it may be supported by showing any set of facts consistent with the
allegations in the complaint.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 (2007).
Similar to a Rule 12(b)(6) motion, the court may consider a document on a motion for
judgment on the pleadings if the plaintiff refers extensively to the document or the document is
integral to plaintiff=s claim. U.S. v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003); see also Coto
Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010) (on a motion to dismiss, the court
may consider materials incorporated into the complaint or matters of public record without
converting the motion into a motion for summary judgment). Moreover, agency orders are
documents of which this court may take judicial notice under Fed. R. Evid. 201. See Read v.
Haley, Case No. 3:12-cv-02021-MO, 2013 WL 1562938, at *1 n.3 (D. Or. April 10, 2013)
3 – OPINION AND ORDER
(holding that “[o]n a motion to dismiss, a court may take judicial notice of facts outside of the
pleadings that are matters of public record, such as records or reports from courts or
administrative bodies”) (internal citations omitted). While a court may take judicial notice of
“matters of public record” without converting a motion to dismiss into a motion for summary
judgment, a court may not take judicial notice of a fact that is “subject to reasonable dispute.”
Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir. 2001) (quoting Fed. R. Evid. 201(b)).
C.
Discussion
The Fourteenth Amendment provides that no state shall “deprive any person of life,
liberty or property without due process of law.” U.S. CONST. amend XIV, ' 1. “Due process
‘is a flexible concept that varies with the particular situation.’” Shinault v. Hawks, 782 F.3d
1053, 1057 (9th Cir. 2015)(quoting Zinermon v. Burch, 494 U.S. 113, 127 (1990)).
“Under the Fourteenth Amendment’s Due Process Clause, a prisoner is entitled to certain
due process protections when he is charged with a disciplinary violation.” Serrano v. Francis,
345 F.3d 1071, 1077-78 (9th Cir. 2003) (citing Wolff v. McDonnell, 418 U.S. 539, 564-71
(1974)). But “[l]awful imprisonment necessarily makes unavailable many rights and privileges
of the ordinary citizen,” and though prisoners retain constitutional protections of religious
freedom, access to the court, equal protection, and substantive due process, “[p]rison disciplinary
proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant
in such proceedings does not apply.” Wolff, 418 U.S. at 555-56.
In Wolff, the Supreme Court discussed the due process requirements of a prison
disciplinary hearing. First, prison officials must provide the prisoner with written notice at least
twenty-four hours before the hearing. Id. at 564. This notice must include the charges against
the inmate, a written description of the evidence on which the fact finder relies, and the reason
4 – OPINION AND ORDER
for taking disciplinary action. Id. Second, prison officials should allow the prisoner “to call
witnesses and present documentary evidence in his defense when permitting him to do so will
not be unduly hazardous to institutional safety or correctional goals.” Id. at 566. Third, if the
prisoner is illiterate, or if the complexity of the case makes comprehension unlikely, prison
officials should allow the prisoner to “seek the aid of a fellow inmate, or if that is forbidden, to
have adequate substitute aid in the form of help from the staff or from a sufficiently competent
inmate designated by the staff.” Id. at 570. Additionally, prison officials must have “some
evidence” to support their ultimate disciplinary decision. Superintendent, Mass. Corr. Inst.,
Walpole v. Hill, 472 U.S. 445, 455B56 (1985).
The procedural protections outlined in Wolff “adhere only when the disciplinary action
implicates a protected liberty interest in some ‘unexpected matter’ or imposes an ‘atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison life.’” Serrano,
345 F.3d at 1078 (quoting Sandin v. Connor, 515 U.S. 472, 484 (1995) (explaining such liberty
interests “will be generally limited to freedom from restraint[.]”)). In contrast to a prisoner’s loss
of good time credits, “[t]ypically, administrative segregation in and of itself does not implicate a
protected liberty interest.” Serrano, 345 F.3d at 1078; see also May v. Baldwin, 109 F.3d 557,
565 (9th Cir. 1997) (holding that placement in disciplinary segregation does not implicate a
liberty interest because it “falls within the terms of confinement ordinarily contemplated by a
sentence”); Resnick v. Hayes, 213 F.3d 443 (9th Cir. 2000) (holding inmate had no protected
liberty interest in being free from confinement in the segregated housing unit pending his
disciplinary hearing).
Here, the sanctions imposed against plaintiff do not implicate a protected liberty interest
sufficient to trigger the procedural protections outlined in Wolff. Plaintiff did not lose good time
5 – OPINION AND ORDER
credits, and his 90 days in disciplinary segregation falls within the ordinary terms of confinement
contemplated by his sentence.
In any event, even if the general procedural protections did adhere to plaintiff=s
disciplinary proceedings, the due process afforded him was constitutionally adequate. The
Findings of Fact, Conclusion, and Order show that plaintiff received a copy of the Misconduct
Report, Notice of Hearing, Notice of Inmate Rights in a Hearing, and Rules of Prohibited
Conduct. ECF #11, at 8. Plaintiff also “acknowledged understanding the Misconduct Report
and Inmate Rights in a Hearing.” Id. Additionally, a mental health evaluation was conducted,
and the hearings officer considered it at the time of the hearing. Id.
Plaintiff complains that he was improperly found guilty of Inmate Assault I. “An inmate
commits Inmate Assault I if he/she . . . causes injury to an inmate that requires staff transporting
the inmate to an outside agency for medical care[.]” O.A.R. 291-105-0015(2)(c)(A) (Rule
2.05.01). Plaintiff contends that because he was the inmate who was taken to outside medical
care, not Thompson, the facts do not support a violation of Assault I. Defendants argue that
“[t]he rule makes it a violation to . . . cause injury to an inmate that requires staff transporting the
inmate to an outside agency for medical care, without regard for whether the inmate transported
to outside medical care was the initial aggressor.” Def’s Mot. 7.
Irrespective of how this rule is interpreted, there is “some evidence” that plaintiff
committed an assault against another inmate that justified a disciplinary sanction. The hearings
officer found that it was plaintiff who initiated the physical interaction when he “directed
disrespectful gestures toward Inmate Thompson that involved a physical threat.” ECF #11, at 9.
Indeed, in his Amended Complaint, plaintiff acknowledges that the altercation began after he
jumped up and pushed Thompson after Thompson made a lewd remark to him. ECF #14, at 13.
6 – OPINION AND ORDER
The hearings officer also noted that it was Thompson who yelled for the cell door to be opened,
and that he came out of the cell holding a t-shirt to his bloody nose. ECF #14, at 16. Thus, there
was “some evidence” to impose the disciplinary sanction.
Plaintiff argues that the hearings officer improperly included language in his order, towit, that it was a “mutual altercation,” that Officer McConkey did not include in his report.
However, that is not a basis to find that the disciplinary process violated due process. Officer
McConkey’s report is not a part of the record. Nevertheless, in making his independent findings
of fact, the hearings officer was not confined to the information contained in Officer
McConkey’s report. Moreover, based on the fact that both plaintiff and Thompson were injured,
it was not unreasonable for the hearings officer to conclude it was a “mutual altercation.”
Finally, plaintiff contends that the hearings officer improperly added a paragraph to his
report after he was found guilty and was served with a copy of it. Even assuming that this is in
fact what happened, it does not arise to a due process violation. As discussed above, plaintiff
received all process that was due under Wolff. Accordingly, defendants’ motion for judgment on
the pleadings is granted.
II.
Motion for Leave to File Second Amended Complaint
A.
Background
Plaintiff moves for leave to file a Second Amended Complaint. Plaintiff seeks to add two
new defendants: TRCI Superintendent Troy Bowser (“Bowser”) and the Oregon Department of
Corrections (“ODOC”). Plaintiff also seeks to add an equal protection claim based on
deprivation of his right to self-defense. Defendants object to plaintiff’s motion as futile because:
(1) plaintiff does not plead any factual allegations stating a claim against prospective defendant
Bowser; (2) ODOC is immune from suit under the Eleventh Amendment to the U.S.
7 – OPINION AND ORDER
Constitution; and (3) plaintiff does not plead any factual allegations that state an equal protection
violation.
B.
Legal Standards
The decision to grant or deny leave to amend is within the sound discretion of the trial
court. Foman v. Davis, 371 U.S. 178, 182 (1962). Rule 15 advises that “leave shall be freely
given when justice so requires.” FRCP 15(a)(2). The Ninth Circuit has long recognized that this
policy is “to be applied with extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316
F.3d 1048, 1051 (9th Cir. 2003) (quotation omitted). Still, amendment is not automatic. If
reasons justify denying opportunity to amend, the court has discretion to foreclose amendment.
Foman, 371 U.S. at 182. In the Ninth Circuit, courts consider five factors when determining
whether to grant leave to amend: (1) bad faith, (2) undue delay, (3) prejudice to the opposing
party, (4) futility of amendment, and (5) whether the plaintiff has previously amended the
complaint. Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004). Any of the first four
factors can serve as a basis for denying leave to amend. Chudacoff v. Univ. Med. Ctr. of So.
Nev., 649 F. 3d 1143, 1152 (9th Cir. 2011).
The test for futility is the same as the standard used for a motion to dismiss under Rule
12(b)(6). Fulton v. Advantage Sales & Marketing, LLC, No. 3:11-cv-01050-MO, 2012 WL
5182805 at *2 (D. Or. Oct. 18, 2012). “A proposed amended complaint is futile if it would be
immediately ‘subject to dismissal.’” Nordyke v. King, 644 F.3d 776, 788 n.12 (9th Cir. 2011)
(quoting Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir. 1998) ), aff’d on reh’g
en banc on other grounds, 681 F.3d 1041 (9th Cir. 2012). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).
8 – OPINION AND ORDER
C.
Discussion
1.
Proposed Defendant Superintendent Bowser
To state a claim under 42 U.S.C. ' 1983, a plaintiff must allege discrete acts of wrongful
conduct by a named defendant. See Stevenson v. Koskey, 877 F.2d 1435, 1439 (9th Cir. 1989)
(“[b]efore liability may be imposed on a defendant . . . the defendant must do an affirmative act
which results in the plaintiff being deprived of his federally protected rights”). Moreover, state
officials are not liable under ' 1983 on a respondeat superior theory. Monell v. Dept. of Social
Services of City of New York, 436 U.S. 658, 691-94 (1978). A “supervisor is only liable for
constitutional violations of his subordinates if the supervisor participated in or directed the
violations, or knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d
1040, 1045 (9th Cir. 1989).
Plaintiff=s proposed Second Amended Complaint does not allege any facts stating a claim
upon which relief may be granted against TRCI Superintendent Bowser. Moreover, as discussed
above, plaintiff fails to allege facts supporting a claim that his due process rights were violated in
connection with the disciplinary proceedings. Accordingly, amendment to include a claim
against Superintendent Bowser would be futile.
2.
Proposed Defendant ODOC
It is well established that absent waiver, the Eleventh Amendment bars a suit in federal
court against either a state or an agency acting under its control. Puerto Rico Aqueduct & Sewer
Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993); Alabama v. Pugh, 438 U.S. 781, 782
(1978); Edelman v. Jordan, 415 U.S. 651, 662-63 (1974); see also Will v. Michigan Dep’t. of
State Police, 491 U.S. 58, 63-64 (1989) (state is not a person within the meaning of § 1983).
Except for suits for prospective relief filed against state officials, the Eleventh Amendment bars
9 – OPINION AND ORDER
suit regardless of the relief sought. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
89, 100 (1984).
Plaintiff’s proposed claim against ODOC is barred by principles of Eleventh Amendment
sovereign immunity. Accordingly, plaintiff’s proposed Second Amended Complaint fails to
state a claim against ODOC upon which relief may be granted under 42 U.S.C. § 1983, and
allowing plaintiff to amend to name ODOC as a defendant would be futile.
3.
Proposed Equal Protection Claim
The Equal Protection Clause of the Fourteenth Amendment commands that no state shall
deny to any person the equal protection of the laws, “which is essentially a direction that all
persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr.,
Inc., 473 U.S. 432, 439 (1985). “When an equal protection claim is premised on unique
treatment rather than a classification, the Supreme Court has described it as a ‘class of one’
claim.” North Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008) (citing Vill. of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). To establish a violation of equal protection in
a “class of one” case, a plaintiff must establish that the defendants “intentionally, and without
rational basis, treated the plaintiff differently from others similarly situated.” Id. (internal
citations omitted). However, a person cannot state an equal protection claim merely by dividing
all persons not injured into one class and alleging that they received better treatment than the
plaintiff did. See Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th Cir. 2005). Instead, to
state a “class of one” claim, the plaintiff must identify the group of individuals with whom he is
similarly situated, identify the allegedly intentional and disparate treatment, and allege that there
was no rational basis for the different treatment. Gerhart v. Lake Cty., Mont., 637 F.3d 1013,
1022 (9th Cir. 2011).
10 – OPINION AND ORDER
In his proposed Second Amended Complaint, plaintiff fails to allege a colorable equal
protection claim. As an initial matter, it is not clear that plaintiff has adequately identified a
similarly situated group of individuals. Moreover, plaintiff has not adequately alleged that
anyone has treated him differently from how they treat others; to the contrary it appears plaintiff
is alleging that he was treated just like everyone else because he was found guilty of a mutual
fight despite his assertion he was acting in self-defense. Accordingly, plaintiff’s proposed
Second Amended Complaint fails to state a claim for the denial of equal protection, and allowing
the amendment would, therefore, be futile.
CONCLUSION
For these reasons, defendants’ Motion for Judgment on the Pleadings (ECF No. 28) is
GRANTED and plaintiff’s Motion for Leave to File Second Amended Complaint (ECF No. 45)
is DENIED. Because it is clear that the deficiencies of plaintiff’s Amended Complaint and
proposed Second Amended Complaint cannot be cured by amendment, this action is
DISMISSED.
IT IS SO ORDERED.
DATED this 22nd day of January, 2019.
/s/ Youlee Yim You
______________________________
Youlee Yim You
United States Magistrate Judge
11 – OPINION AND ORDER
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