Nguyen v. Kelly et al

Filing 25

OPINION & ORDER: This Court Grants Defendants' Motion to Dismiss 15 . Because it is apparent that plaintiff cannot cure the deficiencies of the Complaint by amendment, the dismissal is with prejudice. The Court declines to exercise j urisdiction over any pendent state law claim plaintiff intended to raise. See 28 U.S.C. 1367( c )(3); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350-51 (1988). Signed on 3/13/19 by Magistrate Judge Jolie A. Russo. (Mailed to Pro Se party on 3/13/19.) (gm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

Case No. 6: 18-cv-00840-JR

RYAN NAM NGUYEN,

OPINION AND ORDER

Plaintiff,

v.
SUPERINTENDENT KELLY, et al.,
Defendants.

RUSSO, Magistrate Judge:
Plaintiff, formerly an inmate at the Oregon State Penitentiary (OSP), brings this civil
rights action pursuant to 42 U.S.C. § 1983. All parties have consented to allow a magistrate
judge to enter final orders and judgment in this case in accordance with 28 U.S.C. § 636(c).
Currently before the Court is defendants' unopposed Motion to Dismiss (ECF No. 15). For the
reasons set forth below, this Court grants defendants' motion.
BACKGROUND

Plaintiff brings this action against OSP Superintendent Brandon Kelly, Eastern Oregon
Correctional Institution (EOCI) Superintendent Brigitte Amsberry, EOCI hearings officer

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Heather Nevil, EOCI correctional sergeant Gary Longhorn, and EOCI c01Tectional counselor
Kari Key. Pl.'s Comp!. (ECF No. 1) at 3. Plaintiff's sole claim for relief provides as follows:
I have or will be incarcerated for several more days than I should be due to
negligence and malicious intent of administrative staff. A hearing for rule
violation was postponed so the hearings officer could coach the officer writing the
violation into how exactly to rewrite the write-up (hearings officer is supposed to
be neutral) which resulted in the hearings [officer's] findings occurring in a whole
other 6-month review period, resulting in the additional loss of good time that I
would have kept had the violation been either written correctly (the first time it
was filled with fictional abnormalities) or the investigation not been tampered
with by the hearings officer. This occurred on or about May 1, 2017 .... The
effects of this are ongoing until my release May 20, 2018.
Pl.'s Comp!. at 4. Plaintiff seeks $1,000 for each day he was incarcerated beyond his "rightful
incarceration time or whatever is customary." Id. at 6.
Defendants argue that plaintiff fails to state an Eighth Amendment claim because he has
not alleged his sentence was grossly disproportionate to his crime and, if the Complaint is
constrned as raising a due process violation, the claim fails as a matter of law. Defendants also
argue that plaintiff has failed to allege defendants Kelly, Amsberry, or Key were personally
involved in the alleged constitutional violation and, in any event, plaintiff's claim is barred by
the favorable termination rule of Heck v. Humphrey. 512 U.S. 477, 486-87 (1992). Finally,
defendants contend that plaintiff cannot bring a pendent state claim for negligence. Plaintiff has
filed no opposition.
STANDARD OF REVIEW

In order to state a claim, a plaintiff must allege facts which, when accepted as true, give
rise to a plausible inference that the defendants violated the plaintiffs constitutional rights.
Ashcroft v. Igbal, 556 U.S. 662, 678 (2009); Bell At!. Corp. v. Twombly, 550 U.S. 544, 556-57
(2007). 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.
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Igbal, 556 U.S. at 678; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). "A pleading
that offers labels and conclusions or a formulaic recitation of the elements of a cause of action
will not do." Igbal, 556 U.S. at 678 (internal quotations omitted). Plaintiff is proceeding prose,
and therefore this Court construes his Complaint liberally and affords plaintiff the benefit of any
doubt. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
DISCUSSION

Plaintiff's Complaint challenges both the delay of his disciplinary hearing and the
hearings officer's conduct in coaching a correctional officer on how to rewrite plaintiff's
misconduct report. Although not cited by either party, plaintiff's contention that he was denied
earned time credits because his disciplinary hearing occurred "in a whole other 6-month review
period" implicates OR. ADMIN. R. 291-097-0240, governing the calculation and application of
earned time credits. Pursuant to that rule, an inmate will receive earned time credits if he
demonstrates both "case plan compliance" and "institution conduct compliance" during each six-

month review period. OR. ADMIN. R. 291-097-0240(1) & (2) (emphasis added). The
institutional conduct component requires the inmate be free of Level I or Level II misconduct
during the relevant six-month review period. OR. ADMIN. R. 291-097-0240(2). Notably,
"[w]hen dete1mining whether an inmate engaged in misconduct during the review period, "[t]he
date of the adjudication, not of the incident, [is] used for the date of the violation." Id. (emphasis
added). Hence, a delay in a disciplinary hearing can cause an inmate to lose the oppo1iunity to
accrue earned time credits for a six-month review period different from the period in which his
misconduct occurred.

I.

Failure to State a Claim

Defendants move to dismiss plaintiff's claim to the extent it is based on the Eighth
Amendment because he has not alleged facts supp01iing a reasonable inference that his prison
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sentence was grossly disproportionate to the crime for which he was convicted. This Court
agrees plaintiff has failed to state an Eighth Amendment claim because he has not alleged facts
to support a reasonable inference that the denial of the opportunity to earn "several days" of
earned time credits resulted in a sentence that was grossly dispropo11ionate to the severity of his
offense. See Snaman v. Thornburgh, 956 F.2d 275, at *3 (9th Cir. Feb. 25, 1992) (holding that a
disciplinary sanction of the loss of 100 days good time credits did not violate the Eighth
Amendment); Martin v. City of Boise, 902 F.3d 1031, 1046 (9th Cir. 2018) (holding that the
Eighth Amendment proscribes punishment grossly disproportionate to the severity of the crime);
see also Wolff v. McDonnell, 418 U.S. 539, 557 (1974) (holding that "the Constitution itself
does not guarantee good-time credit for satisfactory behavior while in prison"). Although the
Ninth Circuit has held that "[ d]etention beyond the termination of a sentence could constitute
cruel and unusual punishment if it is the result of deliberate indifference to the prisoner's libe11y
interest," plaintiff does not allege he was detained beyond his properly calculated release date.
Rather, he alleges that he was denied the opportunity to reduce his sentence by accruing earned
time credits during a six-month review period. Plaintiff has "no constitutional or inherent right ..
. to be conditionally released before the expiration of a valid sentence." Greenholtz v. Inmates of
the Nebraska Penal & Corr. Complex, 442 U.S. 1, 7 (1979).
If this Comi liberally construes plaintiffs Complaint to raise a due process challenge
based on the delay of his disciplinary hearing, plaintiff fails to state a claim because he has no
due process right to have his disciplinary proceeding conducted in the same six-month review
period as his misconduct. See Tillman v. Rios, 473 F. App'x 644, 645 (9th Cir. 2012) (rejecting
prisoner's due process claim based on a delay in holding his hearing because he was accorded

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the constitutionally required procedural protections); 1 Smith v. Ives, 275 F. Supp. 3d 1219, 122223 (D. Or. 2017) (holding that sixty day delay between issuance of incident report and
disciplinary hearing, caused by the hearings officer's request that the incident repmt be rewritten,
did not violate due process); Rogers v. Daniels, No. 1:07-cv-00933-CL, 2008 WL 346100, at *3
(D. Or. Feb. 6, 2008) (holding that inmate had no due process right to three-day timeline for
disciplinary proceedings set forth in prison program statement); see also OR. ADMIN. R. 291105-0021 (5) (providing that unless an inmate is placed in temporary segregation status, a
disciplinary hearing will be held as soon as practicable and may be postponed for a reasonable
period for good cause).
Fmther, if this Court liberally constrnes plaintiffs Complaint as raising a distinct due
process claim based on the hearings officer's "coaching" of the correctional officer to rewrite
plaintiffs misconduct repo1t, he fails to state a claim because he has not alleged facts to suppmt
a reasonable inference he was subjected to an "atypical and significant hardship in relation to the
ordinary incidents of prison life" as a result of the disciplinary decision and/or sanction (as
opposed to the alleged loss of earned time credits caused by the delay). See Sandin v. Connor,
515 U.S. 472, 483-84 (1995) (holding that libetty interest arises only when a restraint imposes an
atypical and significant hardship). Hence, plaintiff has not alleged that he was deprived of a
protected liberty interest.
Dismissal of pl'aintiffs claim also is warranted as to defendants Kelly, Amsberry, and
Key because plaintiff has failed to allege facts to suppmt a reasonable inference they were

1

In Wolff, the Supreme Court held that a prisoner facing the loss of good time credits in
a disciplinary hearing has the right to an impartial decision maker, 24-hour advance notice of the
charges, a limited right to call witnesses and present evidence, the right to assistance if the
inmate is illiterate or the issues are complex, and a written statement by the factfinder of the
evidence relied on and the reasons for the disciplinary action. 418 U.S. at 563-71.
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personally involved in the alleged constitutional violation. See Taylor v. List, 880 F.2d 1040,
1045 (9th Cir. 1989) (holding that in order to state a claim, a plaintiff must allege the defendants
were personally involved in the alleged constitutional violation). Correctional officials are not
vicariously liable under § 1983 for the conduct of their employees. Monell v. New York City
Dep't of Soc. Serv., 436 U.S. 658, 691-94 (1978); Flores v. Cty. of Los Angeles, 758 F.3d 1154,
1158 (9th Cir. 2014); Taylor, 880 F.2d at 1045.
In sum, plaintiff has failed to state a claim for the violation of the Eighth or Fourteenth
Amendments. The Court dismisses plaintiffs Complaint, with prejudice, because it is apparent
that the deficiencies of the Complaint cannot be cured by amendment.

II.

Heck v. Humphrey
Defendants argue in the alternative that plaintiffs claim is baned by the rule set forth in

Heck because (1) "this case would imply the invalidity of [plaintiffs] criminal conviction;" (2)
"plaintiff has not pleaded facts from which it could be determined that his release from custody
renders moot any habeas proceedings challenging his underlying criminal conviction;" and (3)
"plaintiff has not pleaded that he expeditiously sought to collaterally attack his underlying state
conviction in federal court." Defis' Mot. to Dismiss at 7. Because a dismissal pursuant to Heck
would be without prejudice (see Medina v. Morris, 676 F. App'x 702, 703 (9th Cir. 2017)), this
Court considers defendants' alternate argument despite having concluded that plaintiff fails to
state a claim.
In Heck, the Supreme Court held a state prisoner's § 1983 claim for damages is not
cognizable if a judgment in the plaintiffs favor would necessarily imply the invalidity of his
conviction or sentence, unless the prisoner can demonstrate that the conviction or sentence has
been reversed or otherwise invalidated. 512 U.S. at 487; Martin, 902 F.3d at 1043. In Edwards v.

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Balisok, 520 U.S. 641, 645-48 (1997), the Court extended Heck's favorable termination rule to
the revocation of good time credits if the alleged constitutional violation would, if established,
imply the invalidity of the deprivation of good time credits. A plaintiff who has completed his
term of incarceration may challenge the deprivation of good time credits in a § 1983 proceedirig
if he had no practical oppo1tunity to pursue federal habeas relief because of the short duration of
his confinement and he diligently pursued his available state remedies. Martin, 902 F.3d at 1044;
Lyall v. City of Los Angeles, 807 F.3d 1178, 1191-92 & n. 12 (9th Cir. 2015); Nonnette v.
Small, 316 F.3d 872,876 (9th Cir. 2002).
Defendants' contention that a favorable judgment regarding the loss of earned time
credits would implicate the legality of plaintiffs criminal conviction lacks merit. Rather, the
pe1iinent question is whether a judgment in plaintiffs favor would implicate the legality of his
disciplinary conviction and the lost opportunity to accrne earned time credits.
To the extent this Court construes plaintiffs Complaint as raising a due process claim
based on the hearings officer's lack of "neutrality," the claim is not barred by Heck because
plaintiff does not allege that he was deprived of the opportunity to accrne earned time credits
based on the outcome of the disciplinaiy proceeding. Hence, a judgment in plaintiffs favor
would not implicate the overall length of his confinement. See Ramirez v. Galaza, 334 F.3d 850,
858 (9th Cir. 2003) (holding that Heck does not apply to § 1983 suits challenging a disciplinary
hearing sanction that does not affect the overall length of the prisoner's confinement").
To the extent this Court construes plaintiffs Complaint as raising a due process claim
based on the delay of his disciplinary hearing, the applicability of Heck is a more difficult issue.
However, it does not appearfi'om the face ofthe Complaint that a favorable judgment necessarily
would imply the invalidity of the deprivation of earned time credits. Rather, if plaintiff were to

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prevail on his claim, he would accrue earned time credits for the relevant six-month review
period only if correctional officials determined he othe1wise demonstrated both "institution
conduct compliance" and case plan compliance2 during the six-month review period m
accordance with OR. ADMIN. R. 291-097-0240(1) & (2). Consequently, a judgment in
plaintiffs favor would not necessarily result in the award of earned time credits. Accordingly,
dismissal of the Complaint based on Heck is not warranted.
CONCLUSION

Based on the foregoing, this Court GRANTS Defendants' Motion to Dismiss (ECF No.
15). Because it is apparent that plaintiff cannot cure the deficiencies of the Complaint by
amendment, the dismissal is with prejudice. The Court declines to exercise jurisdiction over any
pendent state law claim plaintiff intended to raise. See 28 U.S.C. 1367(c)(3); Carnegie-Mellon
Univ. v. Cohill, 484 U.S. 343, 350-51 (1988).
IT IS SO ORDERED.
DATED this \'j~day of March, 2019.

IEA. RUSSO
United States Magistrate Judge

2

"Case plan compliance is defined as acceptable participation in work and selfimprovement programs required within the case plan." OR. ADMIN. R. 291-097-0240(1). An
inmate is considered "compliant" if he did not fail or refuse to participate in a required program
activity during the review period. OR. ADMIN. R. 291-097-0240(1)(a). "As needed, the
counselor or multi-disciplinary team will evaluate an inmate's compliance with the required
program activity." OR. ADMIN. R. 291-097-0240(1)(b).
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