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Alfredo Gonzalez v. A. Diaz

August 23, 2012

ALFREDO GONZALEZ,
PLAINTIFF,
v.
A. DIAZ, ET AL., DEFENDANTS.



ORDER DENYING PLAINTIFF'S MOTION TO RECONSIDER OPENING CASE Doc. 16 ORDER FINDING THAT PLAINTIFF'S FIRST AMENDED COMPLAINT FAILS TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED Doc. 20

I. Procedural History

On July 20, 2010, Plaintiff Alfredo Gonzalez ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. Doc. 1. On July 6, 2011, the Court dismissed Plaintiff's complaint for failure to state a claim upon which relief may be granted and ordered Plaintiff to file an amended complaint within thirty days. 28 U.S.C. §§ 1915A and 1915(e). Doc. 7. On July 26, 2011, the Court granted Plaintiff's first motion for an extension of time to file an amended complaint. Doc. 9. On October 4, 2011, the Court granted Plaintiff's second motion for an extension of time to file an amended complaint. Doc. 11. On December 14, 2011, the Court granted Plaintiff's third motion for an extension of time to file an amended complaint. Doc. 13. As of March 22, 2012, Plaintiff had not filed an amended complaint or requested an additional extension of time. As a result, there was no pleading on file that set forth any claims upon which relief may be granted under § 1983. Thus, pursuant to 28 U.S.C. §§ 1915A and 1915(e), the Court dismissed Plaintiff's complaint, with prejudice, based on Plaintiff's failure to state any claims upon which relief may be granted under § 1983. Doc. 14.

On April 2, 2012, Plaintiff filed a motion to reconsider, stating he had not received all of the Court's orders, and he would file an amended complaint within thirty (30) days. Doc. 16. On May 10, 2012, the Court ordered Plaintiff to file an amended complaint prior to considering whether to grant Plaintiff's motion to reconsider. Doc. 17. On June 1, 2012, Plaintiff filed a first amended complaint, but it was unsigned. Doc. 18. On June 15, 2012, the Court issued an order striking Plaintiff's first amended complaint, as unsigned pursuant to Fed. R. Civ. P. 11(a). Doc. 20. The Court ordered Plaintiff file a signed first amended complaint within thirty (30) days. Id. On July 16, 2012, Plaintiff filed a signed first amended complaint. Doc. 20.

II. Rule 60(b) Motion for Reconsideration

Plaintiff moves for the Court to reconsider its order dismissing this action, with prejudice. Doc. 16.

Federal Rule of Civil Procedure 60(b) governs relief from orders of the district court. The Rule permits a district court to relieve a party from a final order or judgment on grounds of: "(1) mistake, inadvertence, surprise, or excusable neglect; . . . (3) fraud . . . by an opposing party, . . . or (6) any other reason that justifies relief." Fed. R. Civ. P. 60(b). The motion for reconsideration must be made within a reasonable time. Id. Rule 60(b)(6) "is to be used sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only where extraordinary circumstances . . ." exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008). The moving party "must demonstrate both injury and circumstances beyond his control . . . ." Id. Local Rule 230(j) requires Plaintiff to show "what new or different facts or circumstances are claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion." "A motion for reconsideration should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law," and it "may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation." Marilyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (emphasis in original).

Plaintiff failed to timely file an amended complaint, despite a combined seven-month extension of time. Additionally, the Court has reviewed Plaintiff's first amended complaint and finds that it fails to state a claim. Therefore, the Court does not find that Plaintiff presented newly discovered evidence, clear error, or an intervening change in the law. Thus, the Court denies Plaintiff's motion to reconsider this Court's order dismissing this action, with prejudice.

However, the Court will screen Plaintiff's first amended complaint, in order to demonstrate that granting Plaintiff's motion to reconsider would be futile.

III. Screening Requirement and Standard

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint, or portion thereof, if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief. . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice," Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678.

While prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, the pleading standard is now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Under § 1983, plaintiff must demonstrate that each defendantpersonally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

Section 1983 provides a cause of action for the violation of constitutional or other federal rights by those acting under color of state law. E.g., Patel v. Kent School Dist., 648 F.3d 965, 971 (9th Cir. 2011); Jones, 297 F.3d at 934. For eachdefendant named, plaintiff must show a causal link between the violation of his rights and an action or omission of the defendant. Iqbal, 556 U.S. at 678-79; Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009). There is norespondeat superior liability under § 1983, and each defendant may only be held liable for misconduct directly attributed to him or her. Iqbal, 556 U.S. at 676; Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009).

IV. Plaintiff's First Amended Complaint

A. Named Defendants and Requested Relief

In Plaintiff's first amended complaint, he names I. Bueno, Correctional Sergeant; T. Cano, Appeals Coordinator; R. Chavez, Correctional Counselor II; R. Davis, Chief Deputy Warden (A);

A. Diaz, Lieutenant; J. Jones, Appeals Coordinator; M. Junious, Chief Deputy Warden; L. Nelson, Appeals Coordinator / Correctional Counselor II; R. Schneider, Correctional Counselor I, who were all employed at Corcoran State Prison ("CSP"). Plaintiff also names N. Grannis, Chief Inmate Appeals Coordinator for the California Department of Corrections and Rehabilitation ("CDCR"). Am. Compl. at 1-3, Doc. 20.

For relief, Plaintiff seeks to be free of threats and retaliation and to receive a fair hearing when filing grievances, for the CDCR to conduct an investigation into all misconduct, $100,000 in compensatory damages, $100,000 in exemplary damages, and $200,000 in punitive damages. Id. at 22.

B. Fourteenth Amendment Due Process Deprivation of Liberty

1. Legal Standard

The Due Process Clause protects Plaintiff against the deprivation of liberty without the procedural protections to which he is entitled under the law. Wilkinson v. Austin, 545 U.S. 209, 221 (2005). To state a claim, Plaintiff must first identify the interest at stake. Austin, 545 U.S. at 221. Liberty interests may arise from the Due Process Clause or from state law. Id. The Due Process Clause itself does not confer on inmates a liberty interest in avoiding more adverse conditions of confinement, id. at 221-22, and under state law, the existence of a liberty interest created by prison regulations is determined by focusing on the nature of the condition of confinement at issue, id. at 222-23 (citing Sandin v. Conner, 515 U.S. 472, 481-84 (1995)). Liberty interests created by prison regulations are generally limited to freedom from restraint which imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. Austin, 545 U.S. at 221 (citing Sandin, 515 U.S. at 484); Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007).

2. Related Allegations

On April 16, 2008, Plaintiff was issued a Rules Violation Report ("RVR") and placed in Administrative Segregation ("ad-seg") at CSP for possession of a deadly weapon (inmate manufactured stabbing instrument). Am. Compl.at 3, 24. On April 25, 2008, Plaintiff appeared before the Institutional Classification Committee ("ICC") for his initial reviewing hearing, and the committee members (Brooks, DaVeiga, Fischer, White, and Giacomi) decided to retain Plaintiff in ad-seg pending adjudication of the RVR for possession of a deadly weapon. Id. at 3, 26.

On May 23, 2008, Plaintiff had a rules violation hearing, and Senior Hearing Officer ("SHO") defendant Diaz found Plaintiff guilty of the RVR for possession of a weapon. Id. at 3, 28. Diaz noted that a metal stabbing weapon sharpened to a point was found in the cell toilet of Plaintiff and his cellmate, inmate Gomez. Id. at 29. Gomez issued a statement taking full responsibility for the weapon. Id. Defendant Diaz found that Plaintiff failed to establish that he was unaware of the weapon in the toilet, considering the close proximity of the toilet to the bunk and that the toilet is used every day. Id. at 30. Diaz noted that Plaintiff's release date is life with the possibility of parole and inmate Gomez's release date is life without the possibility of parole. Id. It is the common practice among inmates for the inmate with the longer sentence to take sole responsibility for any weapons found inside a cell. Id. Since the discovery of the weapon, there have been no acts of violence between Plaintiff and his cellmate, which led Diaz to believe that both inmates were aware of the weapon in their toilet. Id. Diaz also noted that at the time of discovery, the Fresno Bulldogs were at the peak of ongoing gang violence with Southern Hispanic inmates and were using stabbing weapons to assault each other. Id. at 31. Both Plaintiff and his cellmate are members of the Fresno Bulldogs. Id. Diaz found that a review of the evidence positively links Plaintiff to the possession of a deadly weapon. Id. Plaintiff received a 360 day credit forfeiture and referral to ICC. Id. at 28.

Plaintiff received a 360 day credit forfeiture and referral to ICC. Id. at 28.

On June 26, 2008, Plaintiff appeared before the ICC and they assessed a Security Housing Unit ("SHU") term with a Minimum Eligible Release Date ("MERD") of December 1, 2008. Id. at 4, 41.

On December 9, 2008, eight days after Plaintiff's MERD had expired, Plaintiff filed a 602 against all ICC members alleging he was being held illegally without a 114d lock up order, and that it was being done in retaliation for filing a 602 against Diaz. Id. at 4-5. On December 15, 2008, defendant Schneider issued Plaintiff the 114d lock up order, after receiving the December 9, 2008 inmate appeal. Id.

On December 18, 2008, Plaintiff appeared before the ICC for the first time since his arrival at the SHU on October 1, 2008. Id. at 6, 64. The ICC members (defendants R. Davis, R. Chavez, R. Schneider, and I. Bueno) noted that Plaintiff's initial SHU and Pre-MERD review were not completed due to administrative error. Id. at 64. The ICC found that Plaintiff met the criteria for an indeterminate SHU based on his disciplinary history. Id. The ICC noted that Plaintiff has five (5) prior SHU terms for five (5) RVRs, including three (3) RVRs for battery on an inmate, dated January 24, 2002, February 1, 2003, and May 31, 2003; (1) RVR for possession of a weapon, dated April 16, 2008; and (1) RVR for battery on an inmate with a deadly weapon, dated May 14, 2002. Id. The ICC found that releasing Plaintiff to general population at this time may present an immediate threat to the safety and security of self / others as well as the security of the institution. Id. Plaintiff advised the ICC that they violated his right to due process by not holding a timely hearing or giving him his 114d lock up order, and that they cannot now assess an indeterminate SHU due to these violations. Id. at 6-7. Davis of the ICC told Plaintiff to file a 602 appeal since he has so much practice. Id. at 7. Plaintiff interpreted this as retaliatory and a reference to filing 602s against Diaz and the ICC. Id. Schneider had the 602 in plain sight that Plaintiff had filed against the ICC on December 9, 2008.

Id. Plaintiff told the ICC that he would in fact 602 it, and Davis became angry and told Plaintiff that "it doesn't matter cause it will be denied, I'll make sure of that." Id. at 8. When Plaintiff exited the ICC room, Schneider handed Plaintiff his 602 from December 9, 2008 and stated "602 us anytime," and laughed. Id. Since Schneider and Davis both made such blatant remarks about Plaintiff's 602 and the 602 was in plain sight, all the ICC members had knowledge of the due process violations. Id. Issuing Plaintiff an indeterminate SHU term was a conspiracy. Id. Plaintiff's additional six month SHU term did not serve a penological goal other than to retaliate against Plaintiff. Id.

3. Analysis

The Due Process Clause protects Plaintiff against the deprivation of liberty without the procedural protections to which he is entitled under the law. Wilkinson v. Austin, 545 U.S. 209, 221 (2005). To state a claim, Plaintiff must first identify the interest at stake. Austin, 545 U.S. at 221. Liberty interests may arise from the Due Process Clause or from state law. Id. The Due Process Clause itself does not confer on inmates a liberty interest in avoiding more adverse conditions of confinement, id. at 221-22, and under state law, the existence of a liberty interest created by prison regulations is determined by focusing on the nature of the condition of confinement at issue, id. at 222-23 (citing Sandin v. Conner, 515 U.S. 472, 481-84 (1995)). Liberty interests created by prison regulations are generally limited to freedom from restraint which imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. Austin, 545 U.S. at 221 (citing Sandin, 515 U.S. at 484); Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007).

Plaintiff allegations arise, in part, from the adjudication of the RVR on May 23, 2008, finding Plaintiff guilty of possession of an inmate manufactured weapon.

As previously stated, the administrative review of Plaintiff's appeal grieving the violation of his rights relating the adjudication of his disciplinary charge provides no basis for liability. Ramirez, 334 F.3d at 860; Mann, 855 F.2d at 640.

Plaintiff's due process claims fail on two grounds. First, Plaintiff was assessed a credit forfeiture as a result of being found guilty of the charge. State prisoners cannot challenge the fact or duration of their confinement in a § 1983 action and their sole remedy lies in habeas corpus relief. Wilkinson v. Dotson, 544 U.S. 74, 78 (2005). Known as the favorable termination rule, this exception to § 1983's otherwise broad scope applies whenever state prisoners "seek to invalidate the duration of their confinement - either directly through an injunction compelling speedier release or indirectly through a judicial determination that necessarily implies the unlawfulness of the State's custody." Dotson, 544 U.S. at 81. Thus, "a state prisoner's § 1983 action is barred (absent prior invalidation) -no matter the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings) - if success in that action would necessarily demonstrate the invalidity of confinement or its duration." Id. at 81-82.

Plaintiff does not allege that he succeeded in overturning the guilty finding or that his credit loss was otherwise restored. If that is so, Plaintiff is barred from litigating in this action any claim which, if successful, would invalidate the disciplinary finding which led to the credit forfeiture. Within the purview of the favorable termination rule would be any due process challenge to the issuance of the RVR or to the disciplinary hearing, as a finding in Plaintiff's favor would necessarily invalidate the finding of guilt.

Second, even if Plaintiff's claim is not barred by the favorable termination rule, his due process claim still fails. Plaintiff has not identified the existence of a protected liberty interest. Plaintiff has not alleged any facts supporting the existence of a liberty interest in remaining free from a SHU term, which precludes him from bringing a due process claim. Wilkinson, 545 U.S. at 221; Sandin, 515 U.S. at 484; May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997).

Plaintiff does not have a right, as a matter of law, to avoid confinement in administrative or disciplinary segregation and Plaintiff has alleged no facts demonstrating that he was subjected to atypical and significant hardship. See May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997) (convicted inmate's due process claim fails because he has no liberty interest in freedom from state action taken within sentence imposed and administrative segregation falls within the terms of confinement ordinarily contemplated by a sentence); Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (plaintiff's placement and retention in the SHU was within range of confinement normally expected by inmates in relation to ordinary incidents of prison life and, therefore, plaintiff had no protected liberty interest in being free from confinement in the SHU). ...


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