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Gray v. Hernandez


August 27, 2009


The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge


Plaintiff Gregory Lee Gray ("Plaintiff"), a state prisoner appearing pro se and in forma pauperis, initiated this action under 42 U.S.C. § 1983 on June 26, 2008, claiming his civil rights were violated in June 2007 when he was housed at R.J. Donovan State Prison. (Doc. No. 1, "Compl.") Named defendants Hernandez, Marrero, Sterling, and Peterson, move to dismiss Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6). (Doc. No. 14, "Mot.") Plaintiff filed an opposition to the motion. (Doc. No. 22.)

On May 13, 2009, Magistrate Judge Leo S. Papas issued a Report and Recommendations (Doc. No. 26, "R&R") recommending this court GRANT in part and DENY in part the motion to dismiss. Plaintiff and Defendants each filed objections to the R&R. (Doc. No. 28, "Pl. Obj."; Doc. No. 30, "Defs.' Obj.") Plaintiff also submitted a reply to Defendants' objections. (Doc. No. 33, "Pl. Reply.")

Having carefully considered the thorough and thoughtful R&R, the record before the court, Plaintiff's and Defendants' objections, and the applicable authorities, the court wholly ADOPTS THE R&R.

I. Background

On January 22, 2007, while housed at Donovan State Prison, Plaintiff filed a grievance against Defendants Hernandez, Marrero, Sterling, and Peterson, complaining they had denied him access to the law library and to the courts. (Compl. at 1.) Plaintiff's grievance and subsequent appeals were denied up to the third level of review. Plaintiff then filled out a SC-100 form in preparation for filing a suit in Small Claims Court against the same defendants. (Compl. at 3.) Prior to filing the suit, Plaintiff gave Defendants Sterling and Peterson each a note in which he informed them he was suing them for $1666.20 for denying him access to the law library and for failing to provide him with materials necessary to file legal papers. (Id.) In the note, Plaintiff offered to settle the suit for $200 from each defendant provided the funds were not applied toward any restitution he owed. (Id.)

Rather than responding to the "offer," Defendants Sterling and Peterson filed rule violation charges against Plaintiff, stating Plaintiff attempted to extort money from them in an unlawful manner in violation of California Code of Regulations ("CCR") § 3013, and they were concerned for their safety and security. (Compl., Exh. A.) On June 18, 2007, Plaintiff was charged with extortion and placed in Administrative Segregation ("Ad Seg") by Defendant Marrero pending an investigation. (Id. at 3.) Plaintiff contends Defendants filed the charges and placed him in Ad Seg to prevent him from filing his Small Claims Court action. On July 29, 2007, following an internal investigation and evidentiary hearing, Plaintiff was found not guilty of any Rules violations and the charges were dismissed. On August 16, 2007, Plaintiff filed his Small Claims Court lawsuit. (Compl. at 5.) He was ultimately released from Ad Seg on August 22, 2007 after completion of the Chief Disciplinary Officer's review of the proceedings. (Compl., Exh. D.) Plaintiff was subsequently transferred to Mule Creek State Prison on October 2, 2007 and then to High Desert State Prison on November 14, 2007.

Plaintiff sought administrative review of the officers' conduct through the prison appeals process. (Compl., Exh. D.) Plaintiff's grievance was denied at the Second Level of Review and at the Director's Level. (Id.) The review reports concluded Defendants acted in good faith in filing their reports and in complying with CCR § 3312(a)(3), and there was no evidence Defendants had maliciously fabricated false charges against Plaintiff. (Id.)

Plaintiff alleges claims for violation of his constitutional rights under the First, Eighth, and Fourteenth Amendments. He sues all defendants in their official and individual capacities, seeking injunctive relief and actual and punitive damages.

II. Legal Standard

The court reviews a magistrate judge's R&R according to the standards set forth in Fed. R. Civ. P. 72(b) and 28 U.S.C. § 636. The court reviews de novo those portions of the report to which objection is made. United States v. Raddatz, 447 U.S. 667, 673-74 (1980). "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.

Fed. R. Civ. P. 12(b)(6) allows for dismissal of a claim in "extraordinary" cases. United States v. Redwood City, 640 F.2d 963, 966 (9th Cir. 1081). In evaluating a 12(b)(6) motion, the court must accept the complaint's allegations as true, and construe them in a light most favorable to the plaintiff. See Concha v. London, 62 F.3d 1493, 1500 (9th Cir. 1995). The court should grant 12(b)(6) relief only where the complaint lacks either a "cognizable legal theory" or facts sufficient to support a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). At the same time, the complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). //

III. Discussion

A. Tardy Response to the Complaint

In his objections, Plaintiff reiterates his position that Defendants' motion is moot because they responded to the Complaint outside the 20-day period set by Rule 12(a). However, Defendants waived service of process and were thus entitled to 60 days to reply under Rules 4(d)(3) and 12(a)(I)(A)(ii). Defendants' motion was timely filed.

B. First Amendment Retaliation Claim

Plaintiff alleges his rights under the First Amendment were violated when Defendants took retaliatory action against him by placing him in Ad Seg and subsequently transferring him from Donovan State Prison in an attempt to halt his Small Claims Court lawsuit. Under Rhodes v. Robinson, a valid retaliation claim must allege: (1) "a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal." Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (citing Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000)).

In spite of Defendants' argument that Plaintiff failed to adequately allege the fourth and fifth elements under Rhodes, the R&R concluded all elements were satisfied. Defendants object to this conclusion, once again contending the fourth and fifth elements are lacking. (Defs.' Obj. at 4-7).

To adequately plead the fourth element under Rhodes, a plaintiff must allege defendant's conduct "would chill or silence a person of ordinary firmness from future First Amendment activities." Rhodes, 408 F.3d at 569. Defendants contend placement in Ad Seg would not normally chill one's rights because there are "specific appeal procedures that are afforded to inmates who are appealing disciplinary matters" and that "inmates regularly file grievances and appeals while housed in administrative segregation." (Defs.' Obj. at 6.) In support, Defendants point to the fact Plaintiff continued his legal efforts from Ad Seg. As the R&R notes, Defendants cannot use the fact Plaintiff actually employed the grievance process as evidence his exercise of his First Amendment rights was not affected. Rhodes, 408 F.3d at 568. In addition, conduct by prison officials "need not be particularly great in order to find that rights have been violated" and such conduct is actionable even if it does not otherwise rise to the level of a distinct constitutional violation. Thomas v. Carpenter, 881 F.2d 828, 829-30 (9th Cir. 1989) (citing Elrod v. Burns, 427 U.S. 347, 359 n. 13 (1976)). The Ninth Circuit has expressly held placement in Ad Seg can chill First Amendment activity. Hines v. Gomez, 108 F.3d 265, 269 (9th Cir. 1997). Defendants attempt to distinguish Hines, in which a prisoner's Ad Seg placement flowed from false accusations, whereas in this case, the placement was the result of purportedly good faith accusations by the officers. (Defs.' Obj. at 4.) However, this court is not bound by the conclusions regarding the officers' motives which were made during the prison's internal review process. Construing the facts in a light most favorable to Plaintiff, the Complaint does allege conduct that would have a chilling effect.

In the alternative, Plaintiff properly supported the fourth Rhodes element by alleging harm "more than minimal." Rhodes, 408 F.3d at 567 n. 11. In their objections, Defendants argue Plaintiff was not subjected to any measurable harm because Ad Seg conditions roughly approximate general prison conditions and placement in Ad Seg is not inherently punitive. See 15 C.C.R. §§ 3341.5, 3343. However, as mentioned in the R&R, Plaintiff need not plead harm that would rise to the level of a separate constitutional violation in order to satisfy this element. The court agrees with the R&R's finding that Plaintiff showed his exercise of First Amendment rights were chilled as a result of his placement in Ad Seg and the resultant mental and financial harms he suffered.

To adequately plead the fifth Rhodes element, a plaintiff must show the action taken against him did not reasonably advance a legitimate correctional goal. Rhodes, 408 F.3d at 567-68. Considering the facts in a light favorable to Plaintiff, Magistrate Judge Papas concluded Plaintiff met the pleading requirements with the allegation that Defendants filed false extortion charges against him in order to prevent him from pursuing his Small Claims Court case. (R&R at 10.) In their objections, Defendants again argue Defendants filed the charges against Plaintiff in good faith and were required to place Plaintiff in Ad Seg as a result, pursuant to Cal. Code. Regs. 15 § 3335(a). (Defs.' Obj. at 5). Defendants note Magistrate Judge Papas acknowledged the prison's reviews of Plaintiff's claim tended to show Defendants acted with a legitimate purpose, and argue the R&R's contrary conclusion improperly supplied Plaintiff with an essential element of his pleading. (Defs.' Obj. at 7-8.) As stated above, this court is not bound by the conclusions of the prison's internal review process. Although such evidence may ultimately bear on the strength of Plaintiff's claim, that claim is pled with enough facts to survive a 12(b)(6) motion.

The court adopts the findings and conclusions of the R&R. Accordingly, Defendants' motion to dismiss Plaintiff's First Amendment claim for retaliation is DENIED.

C. Eighth Amendment Claim for Cruel and Unusual Punishment

Plaintiff alleges Defendants violated his Eighth Amendment rights by placing him in Ad Seg and thereby causing him to lose his PIA industry job, to face unhealthy conditions, and to endure mental suffering. (Compl. at 6.) The R&R recommended this claim be dismissed as Plaintiff did not allege: (1) any act or omission by Defendants resulting in a deprivation of Plaintiff's Eighth Amendment rights; (2) any Defendants knew of an excessive risk to Plaintiff's health or safety; or (3) any Defendants were deliberately indifferent to Plaintiff's health or safety. (R&R at 14.) In his objections, Plaintiff largely reiterates his previous arguments. (Pl. Obj. at 7-10.) In particular, he offers that on July 25, 2007, he and other inmates suffered from severe stomach pain from eating "poisonous" food and were not afforded medical treatment. (Id. at 9-10.) On several different dates, unnamed officers ignored his requests for medical treatment for unspecified illnesses. (Id. at 9-10.) Plaintiff argues this deliberate indifference by the officers to his health concerns amounted to an Eighth Amendment violation.

To properly allege an Eighth Amendment violation, a plaintiff must make both an "objective" showing that a prison official's acts or omissions deprived him of the "minimal civilized measure of life's necessities," and a "subjective" showing that the official acted with a "sufficiently culpable state of mind." Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (internal citations omitted). In the context of medical care, a prisoner must allege, at a minimum, "deliberate indifference" to his "serious" medical needs. Allegations of an inadvertent failure to provide adequate medical care cannot sustain an Eighth Amendment claim. Wilson v. Seiter, 501 U.S. 294, 297 (1991).

Plaintiff asserts both of these elements were met when prison officials failed to properly sterilize the dining area, and then failed to provide a doctor to treat Plaintiff for his subsequent illness. (Pl. Obj. at 9-10.) However, Plaintiff's Complaint lacks a sufficient factual basis to support this claim. The Complaint mentions only a "sick" stomach, which from Plaintiff's "Pain and Suffering Chart," appears to have resolved on its own. The few additional details offered in Plaintiff's objections are neither part of the Complaint nor do they warrant a conclusion Plaintiff suffered any serious medical crisis which required medical treatment. In addition, Plaintiff alleges in conclusory fashion his condition was so severe the officers could only have ignored his request for a doctor out of deliberate indifference. (Pl. Obj. at 10.) Notably, Plaintiff does not allege any of the named defendants tended to him in Ad Seg.

The court adopts the findings and conclusions of the R&R that Plaintiff has not adequately pled the objective or subjective facets of his Eighth Amendment claim. Accordingly, Defendants' motion to dismiss Plaintiff's Eighth Amendment claim for cruel and unusual punishment is GRANTED.

D. Fourteenth Amendment Claim for Denial of Due Process

Plaintiff contends his due process rights under the Fourteenth Amendment were violated when he lost his prison laundry job, was placed in Ad Seg without prior proceedings, and was transferred to another facility. (Compl. at 8.) The R&R examined each aspect of Plaintiff's due process claim and recommended the claim be dismissed. (R&R at 13-14.) Plaintiff objects to each finding, arguing he has liberty interests in each deprivation sufficient to sustain a Due Process claim. (Pl. Obj. at 11-14.) "The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property." Board of Regents v. Roth, 408 U.S. 564, 569 (1972). While state statutes and prison regulations may grant prisoners liberty interests sufficient to invoke due process protections, the instances in which due process can be invoked are significantly limited. In fact, the Supreme Court "refocused the test for determining the existence of a liberty interest away from the wording of prison regulations and toward an examination of the hardship caused by the prison's challenged action relative to 'the basic conditions' of life as a prisoner." Mitchell v. Dupnik, 75 F.3d 517, 522 (9th Cir. 1996). As concluded by the R&R, none of the alleged deprivations present a liberty interest meeting this standard.

1. Prison Employment

Despite Plaintiff's arguments to the contrary, he has no liberty or property interest in prison employment. See Baumann v. Arizona Dep't of Corrections, 754 F.2d 841, 846 (9th Cir. 1985) (finding no constitutionally protected interest in a work furlough program); Rhodes, 452 U.S. at 348; Hoptowit v. Ray, 682 F.2d 1237, 1254-55 (9th Cir. 1982). Not every "grievous loss" suffered at the hands of the state will require the procedural protection of constitutional due process. Baumann, 754 F.2d at 843. Although Plaintiff acknowledges prison employment is not guaranteed, he argues prison regulations afford him a "reasonable opportunity" to participate in employment programs and he was unfairly denied this opportunity. (Pl. Obj. at 12.) Nevertheless, due process protections attach only if prison policy establishes a right to prison employment. The only statute cited by Plaintiff, Cal. Penal Code § 2933, simply delegates broad authority to the Director of Corrections to allocate worktime resources between categories of prisoners. The court agrees with the R&R that Plaintiff's loss of prison employment does not invoke the protections of the due process clause.

2. Placement in Administrative Segregation

Plaintiff has no constitutionally protected interest in remaining free from administrative segregation. Sandin v. Conner, 515 U.S. 472, 485-86 (1995). Pursuant to Sandin, a plaintiff must asserts facts related to the conditions or consequences of his placement in Ad Seg which show "the type of atypical, significant deprivation [that] might conceivably create a liberty interest." Id. at 486. A plaintiff must assert a "dramatic departure" from the standard conditions of confinement before due process concerns are implicated. Id. at 485; see also Keenan v. Hall, 83 F.3d 1083, 1088-89 (9th Cir. 1996). Plaintiff asserts his Ad Seg placement forced him to endure: (1) 24 hour lock-down; (2) lack of medical treatment; (3) only one shower every three days; (4) poisonous food; and (5) lack of exercise. (Pl. Obj. at 13.) In his objections, Plaintiff contends these conditions meet the "dramatic departure" standard. However, that Ad Seg conditions do not mimic those afforded the general population does not trigger due process concerns. In fact, "[t]he transfer to less amenable quarters for non-punitive reasons is ordinarily contemplated by a prison sentence.*fn1 Sandin, 515 U.S. at 479. The court agrees with and adopts the conclusions of the R&R.

3. Transfer to Another Facility

As set forth in the R&R, Plaintiff has no liberty interest in being housed at a particular institution. Wilkinson v. Austin, 545 U.S. 209, 223 (2005). In his objections, Plaintiff again contends he was transferred against his will in an attempt to stop his small claims court lawsuit, and that the transfer caused harm to his "life, liberty, and property." (Pl. Obj. at 13.) As discussed above, the alleged effect of Plaintiff's transfer on his lawsuit is properly addressed within the context of his First Amendment claim. Prisoners may pursue a retaliation claim without establishing "an independent constitutional interest." Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). The transfer, standing alone, does not amount to a due process violation.

In sum, the court therefore adopts the findings of the R&R and GRANTS Defendants' motion to dismiss Plaintiff's Fourteenth Amendment claim.

E. Sixth Amendment Claim

To the extent Defendants construed a Sixth Amendment claim from Plaintiff's Complaint, they moved the court to dismiss it. Plaintiff concedes he mentioned the Sixth Amendment only in the context of his Small Claims Court complaint and the events leading up to it. He did not intend to state a separate claim for Sixth Amendment violations here. The motion to dismiss is therefore DENIED as moot.

F. Eleventh Amendment Immunity

The Eleventh Amendment prohibits damages actions against state officials acting in their official capacities. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989). In his Complaint, Plaintiff clearly intends to sue each defendant in his or her official capacity. The R&R properly concluded Eleventh Amendment immunity applies to the damages aspect of Plaintiff's claims against Defendants in their official capacities.*fn2 Accordingly, Defendants' motion to dismiss is GRANTED as to this aspect of Plaintiff's claims.

G. Qualified Immunity

Defendants Sterling, Peterson, and Marrero move to dismiss Plaintiff's claims for civil damages against them in their individual capacities. Defendants argue they are entitled to qualified immunity because their conduct did not violate any clearly-established right under the circumstances in which they acted. (Mot. at 14.) Applying the two-step analysis of Saucier v. Katz, 533 U.S. 194, 201 (2001), as modified by Pearson v. Callahan, 192 S.Ct. 808 (2009), the R&R determined Plaintiff satisfied the first prong with his First Amendment retaliation claim, and the second prong with allegations Defendants knew he was simply trying to settle his claim against them. (R&R at 22.) The R&R concludes Defendants are not entitled to qualified immunity as to Plaintiff's First Amendment claim.

In their objections, Defendants contend Plaintiff's First Amendment claim fails and therefore cannot be used to satisfy the first prong under Saucier. Defendants also argue the R&R improperly relies on Plaintiff's version of events rather than the results of the internal appeals process which found the officers had acted in good faith. (Defs.' Obj. at 10.) The court addressed these arguments to Plaintiff's advantage above. See Pratt, 65 F.3d at 806 ("the prohibition against retaliatory punishment is 'clearly established law' in the Ninth Circuit, for qualified immunity purposes.") (citing Schroeder v. McDonald, 55 F.3d 454, 461 (9th Cir. 1995). At this stage, construing the Complaint in a light favorable to Plaintiff, particularly as a pro se litigant, the court adopts the R&R's conclusion that Defendants are not entitled to a favorable motion to dismiss ruling. Defendants' motion to dismiss on qualified immunity grounds is DENIED with respect to the First Amendment retaliation claim and GRANTED with respect to all other claims.

H. Respondeat Superior

In part, Plaintiff brings his § 1983 claims against Defendant Hernandez under a respondeat superior theory. (Compl. at 8.) The R&R notes respondeat superior liability does not exist under § 1983. Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1976). Thus, to state a claim against Hernandez, Plaintiff must show Hernandez was personally involved in the constitutional violation, or a significant causal connection between his wrongful conduct and the constitutional violations. See Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991). That causal connection may be supported with allegations the supervisor "set in motion a series of acts by others, or knowingly refused to terminate a series of acts by others, which he knew or reasonably should have known, would cause others to inflict the injury." Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991) (citations omitted).

Plaintiff did allege Defendant Hernandez was directly involved in his constitutional violations because he was a defendant in the Small Claims Court case and because he knew Plaintiff's rights were being violated and did nothing to stop the violations. In his objections, Plaintiff adds that Hernandez approved Plaintiff's transfer out of Donovan. (Pl. Obj. at 17-18.) These conclusory statements are wholly unsupported by specific facts showing Defendant Hernandez not only knew of the other officers' conduct, but knew that conduct was motivated by retaliatory or other unlawful motives. Although Plaintiff need not plead this claim with specificity under Rule 9, more than formulaic statements are required. Ashcroft v. Iqbal, 129 S.Ct. at 1949. The court therefore agrees with the findings of the R&R. Defendant Hernandez's motion to dismiss is GRANTED.

I. Injunctive Relief

In his Complaint, Plaintiff seeks an injunction ordering Defendants to transfer him back to Mule Creek State Prison and to place him immediately in an industry job. (Compl. at 12-13.) Defendants moved to dismiss Plaintiff's request, arguing they do not have the authority to grant such relief.*fn3 In particular, Defendants claim all decisions regarding prisoner transfer and work detail are handled by committee pursuant to CCR §§ 3040 and 3379. (Defs.' Obj. at 11.) Plaintiff asserts, in conclusory fashion, that he "knows" Defendants are able to comply and urges the court to issue an order to the Director of CDCR or the Warden of High Desert State Prison, neither of whom are named parties in this case. (Pl. Reply at 8.) Plaintiff's arguments are unavailing. Because the named Defendants appear unable to comply with the injunction Plaintiff seeks, the court adopts the R&R's conclusions. Defendants' motion to dismiss is GRANTED.

IV. Conclusion

Based on the foregoing, the court hereby adopts the findings and recommendations of the R&R. The court therefore GRANTS IN PART and DENIES IN PART Defendants' motion to dismiss. In particular, the court DENIES Defendants' motion to dismiss Plaintiff's § 1983 claim for violation of his First Amendment rights (including Defendants' motion to dismiss this claim on qualified immunity grounds) and GRANTS the motion to dismiss as to all other claims. Accordingly, Plaintiff's § 1983 claims for violation of his Eighth and Fourteenth Amendments, his claims against Defendant Hernandez, and his claims for injunctive relief are DISMISSED without prejudice and with leave to amend. Plaintiff's claims for damages against Defendants in their official capacities are DISMISSED with prejudice.

Plaintiff is granted leave to file a first amended complaint consistent with this order. See Lopez v. Smith, 203 F.3d 1122, 1128 (9th Cir. 2000) (dismissal of pro se complaint for failure to state claim is proper only where obvious that amendment would be futile). If Plaintiff wishes to file a first amended complaint, he must do so by September 28, 2009. If Plaintiff does not file an first amended complaint by that date, the case will proceed on his § 1983 retaliation claim and Defendants are instructed to answer in accordance with the Federal Rules of Civil Procedure. The Clerk of Court is instructed to close the case file.


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