The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND AMENDED FINDINGS AND RECOMMENDATIONS
On January 31, 2013, the undersigned issued findings and recommendations on defendants' motion to dismiss. Both sides filed objections. Based on both parties' objections, as set forth more fully below, the findings and recommendations are vacated, and amended findings and recommendations are issued herewith.
Plaintiff is a state prisoner, proceeding without counsel. This action proceeds on plaintiff's January 9, 2012 verified, first amended complaint, in which plaintiff alleges he was not afforded due process when he was assigned to administrative segregation or when he was subsequently assigned to the Security Housing Unit ("SHU"), following an altercation on July 20, 2007. (Dkt. No. 5.) As set forth more fully below, the court finds that defendants' motion to dismiss should be granted in part, and denied in part.
On July 20, 2007, plaintiff was involved in an incident on the yard
State Prison, Sacramento ("CSP-SAC"). On July 25, 2007, plaintiff
received an Institutional Classification Committee ("ICC") hearing,
during which he was informed that an investigation was being conducted
into plaintiff's involvement in the July 20, 2007 altercation in which
a peace officer was battered. (Dkt. No. 5 at 11 n.1.) On August 29,
2007, a rules violation report ("RVR") was issued against plaintiff
for battery on a peace officer, based on the July 20, 2007 incident.
On September 5, 2007, plaintiff was served with a copy of the RVR.
(Dkt. No. 5 at
12.) On September 14, 2007, the RVR was referred to the District
Attorney's office for a determination whether criminal charges would
be brought. (Dkt. No. 5 at 12.) Plaintiff requested postponement of
the RVR hearing pending the District Attorney's decision.*fn1
(Id.) The District Attorney decided not to
On November 8, 2007, plaintiff was transferred from state custody to federal custody by the United States Marshal for a federal court case. (Dkt. No. 5 at 14.) Plaintiff returned to state custody on June 19, 2008. (Dkt. No. 23 at 25.) Thus, with the exception of the 224 days plaintiff spent in federal custody, plaintiff was housed in administrative segregation from the July 20, 2007 incident, until May 30, 2009.
Plaintiff's disciplinary hearing was held on May 30, 2009, and he was found guilty of battery on a peace officer. (Dkt. No. 18-1 at 4.) Plaintiff was referred to the ICC for SHU Term Assessment. (Id., at 6.) On June 24, 2009, plaintiff was assessed a 48 month SHU term, which was applied retroactively to begin on July 20, 2007, the date of the underlying incident. (Id. at 15-16.)
III. Legal Standards - Motion to Dismiss
Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89 (2007), and construe the pleading in the light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir. 1999). Still, to survive dismissal for failure to state a claim, a pro se complaint must contain more than "naked assertions," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a claim upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 570. "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." Iqbal, 129 S. Ct. at 1949. Attachments to a complaint are considered to be part of the complaint for purposes of a motion to dismiss for failure to state a claim. Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990).
A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). In general, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). The court has an obligation to construe such pleadings liberally. Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). However, the court's liberal interpretation of a pro se complaint may not supply essential elements of the claim that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
In considering a Rule 12(b)(6) motion, a district court generally may not take into account material beyond the complaint. IntriPlex Technologies, Inc. v. Crest Group, Inc., 499 F.3d 1048, 1052 (9th Cir. 2007). However, there are exceptions to the general rule. Under the "incorporation by reference" doctrine, we may consider "documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiff's] pleading." Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (alteration in original) (internal quotation marks omitted); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S. Ct. 2499, 168 L. Ed.2d 179 (2007) ("[C]courts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.").
Dunn v. Castro, 621 F.3d 1196, 1205 n.6 (9th Cir. 2010).
Defendants contend that plaintiff received all the process he was due for both his
placement in administrative segregation, and the subsequent assignment to the SHU, and that the delay in plaintiff's hearing was a result of plaintiff's request to postpone the hearing until the District Attorney decided whether or not to criminally prosecute plaintiff, as well as 224 days in which plaintiff was in federal custody. Plaintiff opposes the motion, arguing that defendants failed to provide him with due process before he was placed in administrative segregation, failed to provide him with a timely hearing on the RVR, and that plaintiff did not receive due process at the hearing he did receive prior to the SHU assignment.
The "requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property." Burnsworth v. Gunderson, 179 F.3d 771, 774 (9th Cir. 1999). A prisoner possesses a liberty interest "when a change occurs in confinement that imposes an 'atypical and significant hardship . . . in relation to the ordinary incidents of prison life.'" Resnick v. Hayes, 213 F.3d 443, 448 (9th Cir. 2000) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)).
Placement in segregation pending investigation of disciplinary charges does not implicate a protected liberty interest absent a showing that the conditions of confinement constituted an "atypical and significant hardship . . . in relation to the ordinary incidents of prison life." Id. at 448-49 (quoting Sandin). Typically, placement in administrative segregation housing in and of itself does not implicate a protected liberty interest. Serrano v. Francis, 345 F.3d 1071, 1078 (9th Cir. 2003). Mere allegations by a prisoner that he was denied due process in connection with the decision to administratively segregate him do not present a constitutionally cognizable claim, absent a showing that the specific deprivation at play meets the "real substance" test. See e.g., May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997); Richardson v. Runnels, 594 F.3d 666, 672-73 (9th Cir. 2010) (administrative segregation for two weeks in the Security Housing Unit (SHU) pending a gang investigation is not deprivation of a protected liberty interest); Resnick, 213 F.3d at 447-49 (prisoner's retention in SHU for seventy days pending a disciplinary hearing did not give rise to a liberty interest protected by the Due Process Clause).
When a prisoner is deprived of a State-created liberty interest of "real substance," the Due Process Clause requires that the State provide certain procedural protections. Sandin, 515 U.S. at 477-87. In Toussaint v. McCarthy, 801 F.2d 1080 (9th Cir.1986), the Ninth Circuit held that §§ 3335(a), 3336, and 3339(a) of Title 15 of the California Code of Regulations, taken together, created a constitutionally protected liberty interest for California prisoners to be free from placement in administrative segregation. Toussaint, at 1097-98, abrogated in part on other grounds by Sandin, 515 U.S. at 484 (prisoner's liberty interest protected by due process triggered by conditions demonstrating "atypical and significant hardship[s] . . . in relation to the ordinary incidents of prison life"). In Madrid v. Gomez, 889 F.Supp. 1146, 1271 (N.D. Cal. 1995), the district court found that § 3341.5(c) (3) created a liberty interest in release from administrative segregation after confinement for eleven months. Madrid, at 1271. However, because Toussaint and Madrid were decided before Sandin, those courts had no occasion to consider whether the liberty interest at issue was one of "real substance." Moreover, where the prisoner alleges material differences between the conditions in general population and administrative segregation, the prisoner's procedural due process claim should not be dismissed on the pleadings, but should proceed to summary judgment. See Jackson v. Carey, 353 F.3d 750, 755-57 (9th Cir. 2003) (prisoner alleged sufficient facts to survive motion to dismiss); Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003).
Under the Constitution, the process due to an inmate placed in segregated housing depends on whether the placement is administrative or disciplinary. Toussaint, 801 F.2d at 1099.
In the administrative context, due process requires that prison officials hold an informal non-adversarial hearing within a reasonable time after the prisoner is segregated, inform the prisoner of the reasons, and allow the prisoner to present his views. Id. at 1100. In other words, the prisoner must receive some notice of the charges against him, or notice of the factual basis leading to consideration for the confinement. Saavedra v. Scribner, 482 Fed. Appx. 268 (9th Cir. June 6, 2012) (internal quotations and citations omitted). The Supreme Court has stated that five days is a reasonable time for the post-placement review. See Hewitt v. Helms, 459 U.S. 460, 476 (1983), abrogated in part on other grounds by Sandin, 515 U.S. at 472. A decision to segregate an inmate for administrative reasons must be supported by "some evidence," Toussaint, at 1105-06, and periodic review is necessary to maintain the segregated confinement, id. at 1101.
On the other hand, disciplinary segregation requires that the prisoner receive advance written notice of the charges against him, a hearing at which he may call witnesses and present documentary evidence in a manner consistent with institutional security; staff assistance in preparing a defense if the prisoner is illiterate; and a written statement explaining the basis of the decision. Wolff v. McDonnell, 418 U.S. 539, 563-72 (1974); see also Superintendent v. Hill, 472 U.S. 445, 454 (1985) (due process requires that disciplinary decisions require "some evidence" of a disciplinary infraction).
In his amended complaint, plaintiff alleged material differences between housing in the general population and administrative segregation. (Dkt. No. 5 at 17-18 & n.4.) Defendants did not move to dismiss based on plaintiff's failure to demonstrate a liberty interest. Thus, the court need not address this issue at this time. See Jackson, 353 F.3d at 755-57 (prisoner alleged sufficient facts to survive motion to dismiss).
C. Initial Detention in Administrative Segregation
Plaintiff claims that the notice he received prior to his placement in administrative segregation was untimely and insufficient. Plaintiff argues that the ICC hearing was formal, rather than informal, and contends that it was adversarial in nature because plaintiff was assessed a SHU term on an earlier rules violation during the April 25, 2007 hearing. Defendants contend that plaintiff was provided more process than was due because notice was provided during the formal ICC hearing, and plaintiff was informed that an investigation was being conducted into his involvement in a battery on a peace officer. Defendants contend the hearing was timely because it was held five days after the July 20, 2007 incident, and that plaintiff was also given written notice on September 5, 2007, when plaintiff was provided a copy of the RVR resulting from the July 20, 2007 incident.
Because plaintiff was placed in administrative segregation during investigation into the July 20, 2007 incident, the due process requirements are not as stringent as they are for his subsequent RVR hearing. Thus, prison officials were only required to hold an informal non-adversarial hearing within a reasonable time after the prisoner was segregated, inform the prisoner of the reasons, and allow the prisoner to present his views. Toussaint, 801 F.2d at 1100.
Plaintiff's amended complaint and documents supplied with his opposition demonstrate that on July 25, 2007, plaintiff was informed by prison officials, at the ICC hearing, that plaintiff would be retained in administrative segregation on July 20, 2007, while prison officials investigated plaintiff's involvement in a battery on a peace officer. (Dkt. No. 23 at 26.) Thus, the ICC hearing, as argued by defendants, actually provided plaintiff with more process than he was due, because the ICC hearing was a formal hearing. The notice was timely in that the hearing was held five days after plaintiff was retained in administrative segregation, which this court finds was reasonable. Hewitt, 459 U.S. at 476. The information presented to plaintiff at the ICC hearing was sufficient notice because it provided him with notice of the charges supporting the confinement. Indeed, plaintiff was ultimately charged with battery on a peace officer. In addition, plaintiff was provided an opportunity to present his views at the ICC hearing. The committee stated that "[b]ased upon a review of [plaintiff's] CDC 114D, Central File, case factors, and through discussion with [plaintiff], the committee elects to retain [plaintiff] in ...