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Romeo v. Marshall


March 5, 2010


The opinion of the court was delivered by: John F. Walter United States District Judge


Pursuant to 28 U.S.C. § 636, the Court has reviewed the entire file de novo, including the Third Amended Complaint ("TAC"); the Magistrate Judge's Report and Recommendation ("R&R"); the Objections to the R&R filed on February 19, 2010;*fn1 and the records and files. Based upon the Court's de novo review, the Court agrees with the recommendation of the Magistrate Judge.

The Magistrate Judge found that Plaintiff failed to create a genuine issue of material fact that he had a protected property interest in $3,000 he received in violation of prison regulations under either the Board of Regents standard*fn2 or the Sandin standard.*fn3 (R&R at 9, 11.) Even assuming Plaintiff could establish a protected property interest and assuming he was entitled to the process outlined in Hill,*fn4 the Magistrate Judge found that Plaintiff "failed to create a genuine issue of material fact that he was not afforded due process." (Id. at 13.)*fn5 Finally, the Magistrate Judge found that even assuming Plaintiff could create a genuine issue of material fact as to a violation of his constitutional rights, "the lawfulness of Defendants' actions in this case was not clearly established" at the time of alleged violation, and Defendants were therefore entitled to qualified immunity. (Id. at 14.)

Plaintiff's Objections do not address the issue of whether he had a protected property interest in the $3000. Instead, Plaintiff argues Defendants violated his due process rights by cutting a check and returning the $3000 to the source on March 9, 2005, prior to the hearing on March 30, 2005. (Objections at 1-2.*fn6 Plaintiff attaches a computer printout from his trust account dated April 12, 2005, indicating that a check to the source, David Howerton, for $3,000 was printed on March 9, 2005. (Objections, Ex. C.)*fn7 However, the R&R acknowledged that Plaintiff's trust account was debited $3000 on March 9, 2005. (R&R at 4.) Senior Accounting Officer Supervisor Carney's declaration stated that on March 9, 2005, a debit of $3,000 was posted to Plaintiff's trust account.

(Carney Decl. ¶ 4.) A trust account statement attached to Carney's declaration reflects the transaction. (Id., Ex. B, AGO-0115.) The funds were held in the Accounting Office and were not returned to the source until October 12, 2005, well after the March 30, 2005 hearing and the time for appeal had run. (Id. ¶ 4; see also Reply, Ex. A at AGO-0120 (indicating that a check for $3,000 payable to Howerton was mailed to the parole officer on October 12, 2005).) Approval for the transaction on March 9, 2005 was given by Associate Warden Alves-Wright, who is not a named defendant in this action, after receiving an Investigative Unit Report. (R&R at 4 & n.3.) Plaintiff does not appear to contest the Defendants' ability to put a "hold" on the funds pending the hearing. (Objections at 2.) Even assuming Plaintiff could show a protected property interest, Plaintiff does not create a genuine issue of material fact as to a violation of due process rights.*fn8

Plaintiff's Objections do not challenge the Magistrate Judge's conclusion that Defendants are entitled to qualified immunity even assuming Plaintiff could establish a violation of a constitutional right. (R&R at 13-14.)

In his objections, Plaintiff asserts a new claim that is not in the TAC. Plaintiff argues for the first time that he was charged with and found guilty of committing a Division "B" offense, even though his offense is not listed in the California regulations as a Division "B" offense. (Objections at 4.) Division "B" offenses, which impose a credit forfeiture of 121-150 days, are listed in 15 Cal. Code Regs. § 3323(d).

To the extent Plaintiff is requesting leave to amend the complaint, it is denied because of unreasonable delay and futility. "The timing of the motion, after the parties had conducted discovery and a pending summary judgment motion had been fully briefed, weighs heavily against allowing leave. A motion for leave to amend is not a vehicle to circumvent summary judgment." Schlacter-Jones v. General Telephone of Calif., 936 F.2d 435, 443 (9th Cir. 1991), overruled on other grounds by Cramer v. Consolidated Freightways, Inc., 255 F.3d 683, 692-93 (9th Cir. 2001) (en banc); M/V American Queen v. San Diego Marine Const. Corp., 708 F.2d 1483, 1492 ("a motion for summary judgment was pending and possible disposition of the case would be unduly delayed by granting the motion for leave to amend").

Moreover, the proposed amendment would be futile because the claim involves Plaintiff's loss of good time credits and must therefore be brought as a habeas petition. See Nunes v. Ashcroft, 348 F.3d 815, 818 (9th Cir. 2003) ("Futility alone can justify the denial of a motion to amend."). Claims for "declaratory relief and money damages . . . that necessarily imply the invalidity of the punishment imposed [the deprivation of good time credits]" at a disciplinary hearing are "not cognizable under § 1983." Edwards v. Balisok, 520 U.S. 641, 648, 117 S.Ct. 1584, 137 L.Ed. 2d 906 (1997). Any adjudication in Plaintiff's favor would necessarily invalidate the punishment, the loss of good time credits, and is therefore not cognizable under § 1983. See Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1140 (9th Cir. 2005) ("whether a judgment in favor of a § 1983 plaintiff necessarily implies the invalidity of his underlying conviction [depends on] the particular facts of the . . . proceeding leading to the allegedly improper detention"). "[A] state prisoner seeking injunctive relief against the denial or revocation of good-time credits must proceed in habeas corpus, and not under § 1983." Nonnette v. Small, 316 F.3d 872, 875 (9th Cir. 2002).*fn9

Petitioner's remaining objections are without merit.

IT IS ORDERED that the Report and Recommendation is adopted, and that Judgment be entered dismissing this action with prejudice.

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