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Birrell v. Banzhaf

United States District Court, E.D. California

March 27, 2017

BELLA-CHRISTINA BIRRELL, Plaintiff,
v.
JOYCE BANZHAF, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS

          DEBORAH BARNES, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Bella-Christina Birrell, is a state prisoner proceeding pro se and in forma pauperis with a complaint under 42 U.S.C. § 1983. Therein, Birrell asserts federal claims under the First and Fourteenth Amendments, as well as state claims for defamation and negligence. The gravamen of Birrell's claims is that defendants violated her rights by falsifying a report about her and excluding her from certain activities because of her gender.

         Defendant Joyce Banzhaf, who is proceeding pro se, moves to dismiss Birrell's claims against her on various grounds. Birrell's § 1983 claims against Banzhaf are not cognizable because she not adequately alleged that Banzhaf was acting under color of state law. However, Birrell has stated a cognizable state-law claim that Banzhaf defamed her. Accordingly, as discussed below, the motion to dismiss should be granted in part and denied in part.

         I.BACKGROUND

         Birrell is a transgender inmate at the California Medical Facility (“CMF”), a medical/correctional facility located in Vacaville, California. (Sec. Am. Compl. ¶ 3 (ECF No. 14).) The following current and former defendants are relevant to Banzhaf's motion to dismiss.

         Banzhaf was the “Lead Coordinator” of the “Alternatives to Violence Project.” (Id. ¶ 7.) The Alternatives to Violence Project (“AVP”) “is an independ[e]nt, non-profit organization providing workshops on preventing violence among inmates within the California Department of Corrections and Rehabilitation [‘CDCR'] . . . .” (Id.) The AVP program “is sponsored [by] and works under the direct auspices, supervision and authority” of the CDCR.” (Id. ¶ 8.) Banzhaf's function was to “coordinate” the AVP program at CMF. (Id.) Former defendant Kary Shender was also an AVP coordinator whose function was to assist in coordinating the program. (Id. ¶ 10.)

         Defendant Landon Bravo started to work at CMF at an unspecified time. (See id. ¶ 12.) Bravo took over as “Community Resource Manager” in the spring of 2012. (See id. ¶¶ 46, 49.) As Community Resource Manager, Bravo was the “director supervisor” of Banzhaf and Shender. (Id. ¶ 12.) Bravo was also responsible for authorizing the AVP program and for Banzhaf and Shender to conduct it. (Id. ¶ 12.) Pursuantly, Bravo “created and implemented policies and procedures” for Banzhaf and Shender to carry out. (Id.) Bravo also had to ensure that Banzhaf and Shender complied with state and federal law in coordinating the AVP program. (See id. ¶ 27.) According to Birrell, Bravo was acting “under [the] color . . . of state law” at all times relevant to the second amended complaint. (Id. ¶ 13; see also id. ¶ 95.)

         The second amended complaint contains several allegations regarding Bravo's delegation of authority over the AVP program to Banzhaf. Birrell alleges that, at all relevant times, Banzhaf “was acting on behalf of, and with the permission, authority and approval” of Bravo. (Id. ¶ 9.) Birrell further alleges that Bravo authorized Banzhaf to act “under color . . . of [s]tate law . . . as a ‘de jure' [a]gent of the [s]tate.” (Id.) Yet Birrell alleges that Banzhaf was “forbidden and prohibited from carrying out the duties, tasks, and administrative responsibilities of [Bravo].” (Id. ¶ 29; see also id. ¶ 114.)

         In 2007, the AVP program began holding workshops at CMF “to teach inmates of the CDCR alternative, peaceful ways of dealing with disputes.” (Id. ¶ 35.) Over time, “favoritism was . . . employed in the selection of inmates who were being chosen to participate in the workshops and other AVP activities.” (Id.) Birrell characterizes these favored inmates as the “Inmate Special Interest Group.” (Id. ¶ 42.)

         In February 2010, to challenge this favoritism, Birrell and other inmates “filed a Group/Class Action Inmate Administrative Appeal [‘group appeal'].” (Id.) On March 17, 2010, Birrell, Banzhaf, and Shender attended a meeting for the purpose of addressing the concerns the raised in the group appeal. (Id. ¶ 41.) According to Birrell, Shender left the meeting and told the Inmate Special Interest Group what was being said in the meeting, what the contents of the group appeal were, and who had signed the appeal. (Id. ¶ 42.) As a result, “serious and hostile confrontations” broke out between the Special Inmate Interest Group and the group appeal participants. (Id. ¶ 43.) These confrontations lasted “for months.” (Id.)

         On March 30, 2010, the warden partially granted the appeal based on the determination that the “procedures for monitoring the selection of inmate participants and facilitators within the AVP [p]rogram were flawed.” (Id. at 63.) In response, new procedures “were created to better monitor the [AVP] [p]rogram and the selection of inmates as participants and facilitators.” (Id.) Some months later, due to continuing problems with the administration of the program, Banzhaf and Shender were removed from CMF and barred from operating the program “until they would agree to follow all of the applicable CDCR rules, regulations and policies.” (Id. ¶ 45.)

         In the spring of 2012, the program returned to CMF “in an attempt to restart . . . without all of the . . . corruption that had caused its shut-down in 2010.” (Id. ¶ 46.) During this period, Birrell and the inmates who had pursued the group appeal were being harassed and mistreated as a result of the “wrongful dissemination of the [allegedly] confidential information contained in said appeal.” (Id. ¶ 50.) The same inmates were also “being deliberately excluded from participation in the new . . . program that was being re-started at CMF.” (Id.)

         In Birrell's words, this “covert punishment [was] being inflicted on the [a]ppellants for engaging in a [c]onstitutionally protected activity.” (Id.) Birrell also attributes this harassment to her being a “transgender or gender non-conforming individual.” (Id. ¶ 47.)

         Around that time, Banzhaf and Shender turned over control of the AVP program to a group of inmates similar to the Inmate Special Interest Group. (Id. ¶ 52.) These inmates worked for “Volunteers of Vacaville.” (Id.) They also were “deciding who would be participating as workshop facilitators.” (Id.)

         In July 2012, Birrell attended a workshop for facilitators of the AVP program. (Id. ¶¶ 53, 55.) Jose Sandoval participated in this workshop. (Id. ¶ 54.) Sandoval was an inmate who worked for Volunteers of Vacaville and “performed clerical duties for the AVP program.” (Id. ¶¶ 24, 83.) Sandoval “announced to the entire group in attendance” that Bravo had authorized him to “write CDCR 128 [General] Chronos” on Bravo's behalf. (Id. ¶ 54.) “General Chrono [i.e., chronological report] means a CDC[R] Form 128-B . . . which is used to document information about inmates and inmate behavior.” Cal. Code Regs. tit. 15, § 3000; see also Perrotte v. Sullivan, No. 1:08-cv-01804-AWI-JLT HC, 2010 WL 476006, at *2 (E.D. Cal. Feb. 4, 2010), report and recommendation adopted, No. 1:08-cv-01804-AWI-JLT HC (Mar. 17, 2010).

         Birrell alleges that, after the July 2012 AVP workshop, she was “consistently and repeatedly passed over” to be a facilitator. (Sec. Am. Compl. ¶ 55 (ECF No. 14).) She further alleges that “other similarly situated inmates who meet the stereotypical male prison appearance [] were . . . repeatedly and consist[e]ntly used.” (Id. ¶ 55.) Birrell adds that Banzhaf “personally ordered” her exclusion from the AVP program. (Id. ¶ 57.)

         On January 3, 2013, Birrell asked Bravo why “inmates who had signed the appeal in 2010[] were being excluded and passed over from attending the AVP workshops.” (Id. ¶ 61.) Bravo informed Birrell that he no longer ran the program and had delegated control of it to unspecified individuals. (Id. ¶ 63.) Bravo also told Birrell that she should talk to Banzhaf. (Id. ¶ 62.)

         The next day, Birrell went to see Banzhaf but instead encountered Shender. (Id. ¶ 65.) Birrell told Shender that she wanted to talk to Banzhaf “to do a follow-up on some of the issues that had been decided in the previous [group appeal].” (Id.)

         In April 2013, Birrell discovered a general chrono (“first chrono”) purporting to be electronically signed by Banzhaf. (Id. at 69.) The first chrono also bore the handwritten, printed initials “LB.” (Id.) According to the first chrono, Birrell went to a workshop on January 4, 2013 and tried to convince Shender to put Sidney Ross Deegan, Jr., an inmate and co-signer of the 2010 group appeal, on the list of participants. (See id.; see also id. ¶ 60.) The first chrono further stated that “Birrell told [Shender] I want this to be resolved amicably or it could go the way it went the other time.” (Id. at 69.)

         Birrell alleges that the first chrono “was a false . . . document containing a concocted, false allegation that . . . [she] . . . made a ‘veiled' threat” to Shender. (Id. ¶ 67.) Further, Birrell alleges that the first chrono was written to retaliate against her for participating in the group appeal. (Id. ¶¶ 98, 109.)

         Immediately thereafter, Birrell filed an inmate appeal based on her belief that an inmate wrote the first chrono or that “Bravo had written [it] for some . . . nefarious purpose since the information contained in [it] was untrue.” (Id. ¶ 71.) However, during an administrative investigation, Bravo denied knowledge of the first chrono. (Id. at 65; see also id. ¶ 72.)

         On July 16, 2013, Banzhaf faxed CDCR staff a copy of the first chrono (“second chrono”). (Id. ¶ 74; see also id. at 76.) Although the second chrono's narrative was the same as that of the first, the second purported to contain the handwritten signature of Banzhaf. (Id. at 70; see also id. ¶ 75.) A few days later, Banzhaf stated via email that she wanted the chrono to remain in Birrell's file. (Id. at 76; see also id. ¶ 74.)

         On July 17, 2013, the associate warden issued a first-level appeal response. (Id. at 74.) Although the associate warden granted Birrell's request for “no retaliation, ” he denied her request for removal of the chrono from her central file “due to the chrono being informational in nature.” (Id.) A week later, the warden issued a second-level appeal response. (Id. at 75.) The warden likewise denied Birrell's request for removal of the chrono, reasoning that it was “informational” and not “disciplinary.” (Id. at 76.)

         On August 21, 2013, Birrell went before the parole board. (Id. ¶81.) The district attorney allegedly cited the falsified chrono in stating that Birrell “was manipulating staff and making indirect threats.” (Id. ¶ 81.) According to Birrell, this action resulted in her “receiving a five (5) year denial after serving some thirty-plus (30) years without any disciplinary write-ups.” (Id.) Birrell also alleges that the false chrono “would forever follow [her] and be later used by the parole board to deny [her] a future parole date.” (Id. ¶ 97.)

         During the pendency of Birrell's third-level appeal, she discovered that AVP program documents “were being kept . . . at the Volunteers of Vacaville, and were under the direct control of the very same group of [inmates] that had been prohibited from having any access to said . . . records based on the appeal decision of 2010.” (Id. ΒΆ 80.) Based on this discovery, Birrell told Bravo in November 2014 that inmates had written the chrono, forged his initials on it, and placed it ...


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