United States District Court, S.D. California
ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING DEFENDANTS' MOTION TO DISMISS [Dkt. No. 36]
GONZALO P. CURIEL, District Judge
Plaintiff Augustus Nelson ("Plaintiff"), a state prisoner proceeding pro se and informa pauperis, filed a Second Amended Complaint ("SAC") under the Civil Rights Act, 42 U.S.C. § 1983. (Dkt. No. 11.) Defendants, A. Favila, M. Garcia, and D. Degeus ("Defendants") filed a Motion to Dismiss and a Wyatt Notice pursuant to Wyatt v. Terhun , 315 F.3d 1108, 1119 (9th Cir. 2003). (Dkt. No. 21.) On November 20, 2013, pursuant to 28 U.S.C. § 636(b)(1), the Honorable William V. Gallo, United States Magistrate Judge ("Magistrate Judge") submitted a report and recommendation ("Report") recommending that this Court grant Defendant's Motion to Dismiss and dismiss Plaintiff's SAC with prejudice. (Dkt. No. 36.) Neither party has filed objections to the Magistrate Judge's Report. After a thorough review of the issues and for the reasons set forth below, this Court ADOPTS the Magistrate Judge's Report and GRANTS Defendants' Motion to Dismiss with prejudice and without leave to amend.
Plaintiff is currently serving a life sentence with the possibility of parole after his conviction of kidnapping for robbery with use of a deadly weapon. (See Nelson v. Clark, Case No. 10-CV-1047-IEG (MDD), Dkt. No. 12 at 1-2.) At the time of the events giving rise to the present action, Plaintiff was a prisoner at Centinela State Prison located in Imperial, California. (Dkt. No. 1 at 1.) On March 15, 2007, prison officers searched Plaintiff's cell and discovered an inmate-manufactured weapon. (Dkt. No. 11 at 3.)
Prison authorities issued Plaintiff a California Department of Corrections ("CDC") Form 115 Rules Violation Report, charging him with possession of an inmate-manufactured weapon. (Dkt. No. 11 at 3; Dkt. No. 22 at 1.) Following a disciplinary hearing on April 13, 2007, a Senior Hearing Officer found Plaintiff guilty. (Dkt. No. 11 at 3.) According to California Code of Regulations, title 15, section 3320(l), California Department of Corrections and Rehabilitation ("CDCR") must provide inmates with a copy of the completed CDC Form 115 within five working days of the hearing. (Dkt. No. 11 at 4.)
Plaintiff claims that he did not receive a copy of the "Findings of Evidence" and "Final Disposition" of his hearing until May 23, 2007, approximately 40 days later. (Dkt. No. 11 at 3.) On May 31, 2007, the Institution Classification Committee ("ICC") conducted a hearing to review the Senior Hearing Officer's conclusions and affirmed the guilty finding for possession of an inmate-manufactured weapon. (Dkt. No. 11 at 15.) On June 25, 2007, ICC provided Plaintiff with a copy of their disposition and on July 8, 2007, Plaintiff submitted an inmate appeal challenging the findings of his original disciplinary hearing. (Dkt. No. 11 at 16.) After his appeal was twice rejected as untimely (Dkt. No. 11 at 18), Plaintiff submitted his rejected appeal to the Chief of Inmate Appeals. (Dkt. No. 22 at 22.) Plaintiff's appeal was rejected for failure to receive a second-level appeal decision at the institutional level. (Dkt. No. 11 at 22; Dkt. No. 6.) Plaintiff alleges that Defendants' actions resulted in atypical and significant hardship, including loss of his work assignment and group privilege status, serving a ten-month sentence in the Security Housing Unit, a custody classification increase, and transfer from a Level III to a Level IV institution. (Dkt. No. 11 at 6-7.)
III. PROCEDURAL HISTORY
On May 10, 2010, Plaintiff filed a Petition for Writ of Habeas Corpus, naming Ken Clark, a warden, as defendant. (Nelson v. Clark, Case No. 10-CV-1047-IEG (MDD), Dkt. No. 1.) Plaintiff's habeas petition contained the factual allegations listed above and asserted two grounds which entitled him to relief: (1) a violation of his due process rights under the Fourteenth Amendment for failure to timely receive an "inmate copy" of the CDC 115 Rule Violation Report; and (2) a violation of his First Amendment right to redress of grievances because the delay infringed upon his right to appeal the disciplinary hearing's guilty findings. ( Id. at 6, 15.) District Court Judge Irma E. Gonzalez dismissed with prejudice Plaintiff's Petition for Writ of Habeas Corpus because the one-year statute of limitations had run under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d). Nelson v. Clark, Case No. 10-CV-1047-IEG (MDD), 2011 WL 3739149, at *2 (S.D. Cal. Aug. 23, 2011). Judgment was entered against Plaintiff on August 24, 2011.
On September 21, 2011, Plaintiff filed the present civil rights complaint under 42 U.S.C. section 1983, challenging the procedural adequacy of inmate grievance procedures at Centinela State Prison. (Dkt. No. 1.) On October 19, 2011, District Court Judge Dana Sabraw granted IFP, but sua ponte dismissed Plaintiff's complaint without prejudice for failure to state a claim under 28 U.S.C. sections 1915(e)(2) and 19515(b). (Dkt. No. 3.) On December 5, 2011, Plaintiff filed an amended complaint, which the court again dismissed sua ponte for failure to state a claim. (Dkt. No. 8.)
On March 16, 2012, Plaintiff filed a second amended complaint ("SAC"), the currently operative complaint. (Dkt. No. 11.) In his SAC, Plaintiff alleges: (1) his due process rights under the Fourteenth Amendment were violated by the CDCR's failure to timely provide him, within five working days of the disciplinary hearing, an "inmate copy" of the CDC Form 115 Rule Violation Report (Dkt. No. 1 at 6); and (2) Defendants deprived him of his First Amendment right to redress of grievances when they repeatedly declined to process his appeals (Dkt. No. 1 at 13, 24-26.)
On August 6, 2012, Defendants filed a motion to dismiss the SAC for Plaintiff's failure to exhaust administrative remedies and failure to state a claim for which relief may be granted. (Dkt. No. 21-1.) On October 12, 2012, the case was transferred to the undersigned Judge. (Dkt. No. 26.) On November 6, 2012, Magistrate Judge William V. Gallo submitted a report and recommendation to this Court recommending that Defendant's Motion to Dismiss be granted and Plaintiff's SAC be dismissed without prejudice. (Dkt. No. 31.)
After discovering that Plaintiff had previously filed a Petition for Writ of Habeas Corpus (Nelson v. Clark, Case No. 10-CV-1047-IEG (MDD), Dkt. No. 1), which was dismissed as untimely (Nelson v. Clark, Case No. 10-CV-1047-IED (MDD), Dkt. No. 38), this Court declined to adopt Judge Gallo's report and recommendation. (Dkt. No. 32.). Instead, the Court directed Judge Gallo to set a briefing schedule and determine whether the judgment entered in Nelson v. Clark precluded Plaintiff's present claims under the doctrine of res judicata. (Dkt. No. 32 at 2.) Plaintiff and Defendants were ordered to file supplemental briefs that addressed the application of res judicata to this case. Defendants filed a Supplemental Brief (Dkt. No. 36.) and Plaintiff filed an Opposition to Defendant's Supplemental Brief (Dkt. No. 35). On November 20, 2013, the ...