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Javier Diego Uribe v. S. Taylor


October 12, 2012



Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. § 1983. On October 4, 2010, plaintiff consented to Magistrate Judge jurisdiction in this action pursuant to 28 U.S.C. § 636(c). See Doc. No. 4. Before the court is plaintiff's amended complaint.*fn1

I. Screening Requirement

The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. See 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. See 28 U.S.C. § 1915A(b)(1) & (2).

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.

Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for failure to state a claim a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic, 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint. See Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976). The court must also construe the pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

II. Plaintiff's Amended Complaint

In his amended complaint, plaintiff alleges as follows. On March 11, 2009, plaintiff was charged with a rules violation for stalking floor staff (log number B03-09-043). The report was issued by defendant correctional officer S. Taylor and provides as follows:

On 03/11/08 at approximately 1705 hours, while performing my duties as Building 8 E-Bed Officer, during the unit chow release, inmate URIBE . . . followed me into the building 8 office where I was preparing cell search logs, and gave me a typewritten letter apologizing for stalking me. [I]nmate URIBE didn't stop at the office door and talk to me from there, he came right behind me and startled me. On 01/08/09 I told inmate URIBE to stop showing me personal photos or attempting to give me letters and love poems that he cut out of magazines. On 02/26/09 I told Officer Pena of URIBE'S stalking behavior and asked Officer Pena to tell inmate URIBE in Spanish (because he is a Spanish speaker), to leave me alone, that his behavior was inappropriate and unwanted. Officer Pena counseled URIBE in Spanish to cease his harassment of me.

I also warned inmate URIBE on 02/26/09, "If you don't back off of me, I will write a 115 RVR on you for stalking me." After all these warnings inmate URIBE continues his obsessive, compulsive stalking of me and after today, when he waited until chow release when Officer Pena was covering chow and Officer Knoll was searching a cell, in order to approach me in the confined space of the office, it seems the only solution is to remove inmate URIBE from his job assignment*fn2 and unit to another yard. A copy of his letter is attached. Inmate URIBE is aware of this report. Inmate URIBE is not a participant in the Mental Health Services Delivery System.

(Doc. No. 12 at 32.) Defendant Palomares was assigned as plaintiff's investigative employee with respect to the disciplinary charge and defendant Ward was the hearing officer. On March 30, 2009, plaintiff was found guilty of the prison disciplinary charge of stalking floor officer and was assessed sixty-days loss of behavioral credits and placed in privilege group C for sixty-days. (Id. at 48-49.)

On March 11, 2009, plaintiff was provided a notice for administrative segregation placement. (Id. at 35.) The notice, signed by defendant S. Smith, informed plaintiff that the placement was due to the incident with officer Taylor which was deemed to be a threat to the safety and security of the prison. (Id.) Plaintiff refused to sign the notice. (Id.) On March 19, 2009, plaintiff appeared before the ICC for an initial administrative placement review. (Id. at 4 & 40.) The ICC determined that plaintiff could be released from administrative segregation and plaintiff was assigned "C" facility. (Id. at 40.)

On March 12, 2009, plaintiff was issued a second rules violation for "refusing to accept assigned housing" with another inmate while in administrative segregation (log number C03/09-059). (Id. at 37.) While in administrative segregation, plaintiff contends that some of his personal property was lost. (Id. ¶ 51 at 23.) Plaintiff asserts that defendant correctional officer Koll was responsible for securing his property. (Id.)

Plaintiff also alleges that since he filed this civil rights on September 28, 2010*fn3 , he has been subject to multiple acts of retaliation. (Id. at 24.) Those acts of retaliation included the following: The administration's refusal to assign plaintiff to housing in B-yard, although that is where defendant Taylor worked. (Id.) While in administrative segregation, plaintiff was moved several times. (Id. at 25.) There were delays in releasing and returning plaintiff to his cell. (Id. at 26.) Defendant Taylor has been assigned to work in the same building where plaintiff is housed which plaintiff believes has been done to cause him "deep emotional and psychological pain[.]" (Id. at 27.)

Plaintiff claims his right to due process was violated, that he was subjected to cruel and unusual punishment, and that he has suffered retaliation. (Doc. No. 12 at 9.) Plaintiff seeks $12,000 as monetary damages and the removal of the two rules violation reports from the central file. (Id. at 29.)

For the reasons set forth below, the court finds that plaintiff has once again failed to state a cognizable claim.

III. Due Process Claims

Plaintiff claims that his due process rights were violated in several respect in connection with the prison disciplinary charge brought against him for stalking. Specifically, he contends that his due process rights were violated because: (1) the rules violation report was invalid; (2) there is no applicable regulation prohibiting stalking; (3) the investigative employee assigned to him performed inadequately; (4) the defendants' failed to counsel him prior to issuing the rules violation report, (5) his disciplinary hearing was inadequate, and (6) his placement in administrative segregation was invalid. The court will consider each aspect of plaintiff's due process claim below.

A. Validity of the Stalking Charge and the Disciplinary Hearing (Claims I and VIII*fn4

Plaintiff challenges the validity of the prison disciplinary charge brought against him for stalking by attacking defendant Taylor's credibility. In this regard, plaintiff argues that defendant Taylor made inconsistent statements when she alleged that plaintiff "followed" her into the office and that she was "startled" by plaintiff. (Id. at 10.) He also questions defendant Taylor's credibility by arguing that she is trained to be "visual[ly] aware of inmates" in the building and that if defendant was truly startled by plaintiff, she should have pushed the alarm button which she did not do. (Id. at 11.) Finally, plaintiff argues that defendant Taylor's reference to the apology letter plaintiff purportedly wrote is suspect because the letter was not mentioned in her initial statement and the letter has never been formally "disclosed" or shown to plaintiff. (Id. at 12-13.)

Regarding the disciplinary hearing held on the charge, plaintiff claims that hearing officer defendant Ward failed to ensure that plaintiff was afforded due process protections. (Id. at 20.) Plaintiff contends that defendant Ward "'twisted'" the proceedings so that it was favorable for defendant Taylor by allowing the use of false evidence and false statements. (Id.) Plaintiff again points to defendant Taylor's allegedly conflicting statements and questionable credibility. (Id.) Defendant Ward had sergeant Hernandez act as a Spanish-language interpreter during the hearing but plaintiff contends that it was Mr. Rodriquez who acted as the interpreter, that his Spanish-language skill was "poor" and that plaintiff did not understand the interpreter.

(Id.) Plaintiff contends that defendant Ward wrote in the hearing decision that plaintiff understood the hearing process but that this was not true. (Id.) Plaintiff argues that defendants Taylor, Pena and Koll were not present at the hearing, that due process "mandates that witnesses appear[,]" and that their testimony was vital to plaintiff's efforts to prove his innocence. (Id. at 21.) Finally, plaintiff argues that he was found guilty based on insubstantial evidence. (Id.) These due process claims are barred by the holding in Edwards v. Balisok, 520 U.S. 641 (1997). In that case, the Supreme Court held that where a plaintiff challenges alleged procedural defects in a disciplinary hearing and if established, those defects would necessarily imply the invalidity of the deprivation of his good-time credits, the claim is not cognizable under § 1983. Id. at 648. Here, plaintiff seeks monetary damages and the expungement of the rules violation report pertaining to the prison disciplinary charge of stalking. In order for the court to grant plaintiff such relief, the court would have to find that the disciplinary proceedings were constitutionally defective which, in turn, would necessarily invalidate plaintiff's disciplinary conviction. Therefore, plaintiff may not proceed with these due process claims until the disciplinary conviction for stalking has been reversed, expunged or declared invalid. Since plaintiff has already informed the court that his state habeas challenges to his disciplinary conviction for stalking have been unsuccessful, his due process claims challenging the validity of that charge and disciplinary hearing held thereon are barred under Balisok. (Doc. No. 12 at 5.)

B. Absence of Regulation Prohibiting Stalking (Claim II)

Plaintiff asserts that he has searched the California regulations and has found no regulation that mentions stalking or authorizes the issuance of a prison rules violation for stalking. (Id. at 13-14.) Plaintiff argues that it violates the Fifth and Fourteenth Amendments to punish him for an act that is not prohibited. (Id. at 14.)

In response to plaintiff's inmate appeal*fn5 concerning the disciplinary charge for stalking, he was informed that the applicable regulation upon which the stalking charge was based was 15 California Code of Regulations (CCR) § 3005. That regulation prohibits "behavior which might lead to violence or disorder, or otherwise endangers facility, outside community or another person." CCR § 3005(a). Stalking clearly falls within this regulation and the court does not find the regulation itself to be unconstitutionally vague. See Melugin v. Hames, 38 F.3d 1478, 1486 (9th Cir. 1994) ("[A] statute is deemed void for vagueness if it fails to give adequate notice to people of ordinary intelligence of the prohibited conduct.")*fn6

C. Failure to Counsel Plaintiff or Issue a Counseling Chrono (Claims III, IV, V, IX)

In these claims, plaintiff argues that if defendants Taylor, Pena and Koll believed that he was engaging in inappropriate behavior towards defendant Taylor, they should have counseled plaintiff about his behavior and documented that action with a counseling chrono (CDC-128). Such allegations fail to state a cognizable due process claim. Plaintiff has cited no authority, and the court has located none, that due process requires that a prisoner be counseled or receive a counseling chrono before a rules violation report is issued.

D. Staff Assistance and Investigative Employee (Claim VI)

Plaintiff contends that he received inadequate assistance from defendant Palomares, the investigative employee assigned to plaintiff in connection with the prison disciplinary charge for stalking. Plaintiff alleges that defendant Palomares failed to ensure that plaintiff had the assistance of a Spanish-language interpreter and staff assistant, and also failed to interview defendant Koll on plaintiff's behalf.*fn7 (Id. at 18.) Plaintiff does not set forth any further factual allegations explaining how these alleged failures were harmful to him despite the court's earlier order advising plaintiff that further clarification was needed with respect to this claim.*fn8

"Prison 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 v. McDonnell, 418 U.S. 539, 556 (1974). The Supreme Court has held that at a prison disciplinary hearing, the prisoner must receive: "(1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action ." Superintendent v. Hill, 472 U.S. 445, 454 (1985). In addition, procedural due process requires that the findings of the prison disciplinary board be supported by some evidence in the record. Id.

Here, plaintiff has not claimed a violation of any of the procedural protections required under these Supreme Court authorities. Moreover, plaintiff has no due process rights to the assistance of an investigative employee and thus, his claim that defendant Palomares failed to conduct an adequate investigation or to obtain a staff assistant for plaintiff in connection with the disciplinary charge fails to state a cognizable due process claim.

As to plaintiff's contention that defendant Palomares should have obtained an interpreter for him, in his amended complaint plaintiff does not allege facts explaining what information was lost or unavailable to him due to any claimed language barrier. There is no indication or suggestion in the allegations of plaintiff's amended complaint that he requested an interpreter during the investigation and/or at the disciplinary hearing. Rather, it appears that the hearing officer noted that plaintiff spoke English. Nonetheless, the hearing officer obtained an interpreter to explain the hearing process and charges, and when asked if he understood, plaintiff "in his own words, articulated his full understanding of the hearing proceedings and the charges against him to the SHO'S satisfaction." (Id. at 46.) In this context, any alleged failure to obtain an interpreter does not state a cognizable due process claim. See Gonzales-Perez v. Harper, 241 F.3d 633, 637-38 (8th Cir. 2001) (concluding that there is no due process violation when the prisoner-plaintiff did not request an interpreter, the prisoner had appeared at other disciplinary hearings without an interpreter, and the hearing officer believed the prisoner's language skills were sufficient to understand and respond to the disciplinary proceedings); Oliver v. Vasbinder, No. 08-11768-BC, 2010 WL 779178, at *4 (E.D. Mich. Mar. 4, 2010) ("Plaintiff's failure to show that the need for an interpreter at the hearing defeats the claim that his Fourteenth Amendment due process rights were violated.").

E. Administrative Segregation (Claim VII)

Plaintiff claims that defendant Smith violated his due process rights when he "enhanced the indictment against Uribe" which resulted in plaintiff's placement in administrative segregation. (Doc. No. 12 at 19.) Although plaintiff was issued a rules violation report for stalking, defendant Smith charged plaintiff with "'over familure [sic] statements[.]'" (Id.) Plaintiff argues that defendant had a duty "to stay [the] course of the initial charge" and to provide plaintiff with a Spanish-speaking staff member.*fn9 (Id.) Plaintiff contends that by using the "over familure [sic] " charge, "the charge look[ed] more dubious in the eyes of other prison officials handling the case against Uribe." (Id. at 19-20.)

In determining whether a prisoner should be placed in administrative segregation, due process requires: "Prison officials must hold an informal non-adversary hearing within a reasonable time after the prisoner is segregated. The prison officials must inform the prisoner of the charges against the prisoner or their reasons for considering segregation. Prison officials must allow the prisoner to present his views." Toussaint v. McCarthy, 801 F.2d 1080, 1100 (9th Cir. 1987). Here, the allegations of plaintiff's own amended complaint reflect that he received the required notice and understood that his placement in administrative segregation was in response to the stalking allegation. Therefore, plaintiff has failed to state a cognizable due process claim concerning his placement in administrative segregation.

IV. Loss of Property(Claim IX)

Plaintiff claims that when he was placed in administrative segregation, defendant Koll seized his property. Plaintiff believes that defendant failed to properly inventory the property and compare the property seized with the property noted on his inmate property card. (Doc. No. 12 at 12.) Plaintiff alleges that at some unknown time some of his property, valued at $125.58, was lost. (Id.)

The United States Supreme Court has held that "an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful post-deprivation remedy for the loss is available." Hudson v. Palmer, 468 U.S. 517, 533 (1984). The same applies for a negligent deprivation of property. Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam) ("[A] negligent or intentional deprivation of a prisoner's property fails to state a claim under section 1983 if the state has an adequate post deprivation remedy."). The California Tort Claims Act, Cal. Gov't Code § 810 et seq., provides an adequate post-deprivation remedy for loss of property. Id. at 816-17.

Here, plaintiff's allegations against defendant Koll state a claim only of a negligent or unauthorized intentional deprivation of property. Because plaintiff has a meaningful post-deprivation remedy, his deprivation of property claim fails to state a cognizable claim under § 1983 .

V. Retaliation Claim (Claim X)

In the court's May 2, 2011 order dismissing the original complaint and granting leave to amend, the court provided plaintiff with the legal standards governing a First Amendment retaliation claim. Therein, plaintiff was advised that such a claim involves five elements: "(1) An assertion that 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).

In his amended complaint, plaintiff alleges that after he file this civil rights action, he was subjected to multiple cell moves by prison officials. It appears from plaintiff's allegations that these cell moves were made so that plaintiff was in a different yard than defendant Taylor, who had issued the rules violation report for stalking. The allegations of the amended complaint do not indicates a retaliatory motive and plaintiff has failed to allege facts suggesting that his cell moves did not reasonably advance a legitimate correctional goal.*fn10 Moving plaintiff to areas that would decrease his contact and interaction with defendant Taylor following the disciplinary charge and conviction for stalking, would appear to forward a legitimate correctional goal. The other allegations of the amended complaint regarding the delays in opening plaintiff's cell door so he could exit or re-enter his cell and the stress he experiences when in proximity to defendant Taylor fails to support any inference that plaintiff has experienced adverse action as a result of retaliation. Therefore, the court finds that plaintiff has failed to state a cognizable retaliation claim.

VI. Eighth Amendment Claim (Claim XII)

In this claim, plaintiff maintains that he did not stalk defendant Taylor and that the "prison proceedures [sic] and disciplinary actions taken against him has forced him to endure months and now years of mental, emotional and physical fatigue" in violation of his right to free from cruel and unusual punishment. (Doc. No. 12 at 29.)

"Not every governmental action affecting the interests or well-being of a prisoner is subject to Eighth Amendment scrutiny, however." Whitley v. Albers, 475 U.S. 312, 319 (1986). It is "unnecessary and wanton infliction of pain" that constitutes cruel and unusual punishment forbidden by the Eighth Amendment. Id. See also Ingraham v. Wright, 430 U.S. 651, 670 (1977); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). Certainly, the issuance of rules violations reports and the conducting of prison disciplinary proceedings do not constitute cruel and unusual punishment. See Jones v. Prater, No. 2:10-cv-01381 JAM KJN P, 2012 WL 1979225 at *2 (E.D. Ca. June 1, 2012) ("[P]laintiff cannot state a cognizable Eighth Amendment violation based on an allegation that defendants issued a false rules violation against plaintiff."); Sweet v. Kneri, No. CIV S-11-2625 EFB P, 2012 WL 1604711 at *2 (E.D. Cal. May 7, 2012) ("[T]he mere allegations that plaintiff is mentally ill and was found guilty of a rules violation, are not sufficiently serious to demonstrate cruel and unusual punishment."); Lopez v. Celaya, No. C 06-5071 THE (PR), 2008 WL 205256 at *5 (N.D. Cal. Jan. 23, 2008) ("A prisoner has no constitutionally guaranteed immunity from being wrongly or falsely accused of conduct which may result in the deprivation of a protected liberty interest."). Thus, in his amended complaint plaintiff has also failed to state a cognizable Eighth Amendment claim.

VII. Further Leave to Amend

The court has carefully considered whether plaintiff should be provided leave to amend his complaint. "Valid reasons for denying leave to amend include undue delay, bad faith, prejudice, and futility." California Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir.1988). See alsoKlamath-Lake Pharm. Ass'n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir.1983) (holding that, while leave to amend shall be freely given, the court need not allow futile amendments). The court finds that further leave to amend would be futile in this case. Plaintiff's allegations fail to state a cognizable civil rights claim. Moreover, plaintiff was provided with applicable legal standards, was granted leave to amend and has failed to correct the deficiencies noted in the court's order dismissing his original complaint. Therefore, the court will not grant plaintiff further leave to amend and will instead dismiss the amended complaint with prejudice.


For all the reasons set forth above, the court finds that plaintiff's amended complaint filed June 28, 2011, fails to state a cognizable claim. Accordingly, IT IS HEREBY ORDERED that this action be dismissed with prejudice for failure to state a cognizable claim.

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