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Carter v. Silva

United States District Court, E.D. California

May 30, 2017

MICHAEL CARTER, Plaintiff,
v.
J. SILVA, et al., Defendants.

         ORDER DIRECTING CLERK'S OFFICE TO ASSIGN A DISTRICT JUDGE TO THIS MATTER ORDER DIRECTING CLERK'S OFFICE TO TERMINATE ECF NO. 18 FINDINGS AND RECOMMENDATION TO GRANT DEFENDANT'S MOTION TO DISMISS (ECF NO. 17) FOURTEEN (14) DAY OBJECTION DEADLINE

          MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE

         I. Procedural History

         Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 28 U.S.C. § 1983. The action proceeds on a Fourteenth Amendment claim for damages against Defendant Silva in his individual capacity. The allegations arise out of a disciplinary hearing conducted by Defendant Silva.

         Before the Court is Defendant's motion to dismiss. (ECF No. 17.) Plaintiff filed an opposition.[1] (ECF No. 18.) Defendant filed a reply. (ECF No. 19.) The matter is submitted. Local Rule 230(l).

         II. Plaintiff's Claims

         Plaintiff is incarcerated at Salinas Valley State Prison but complains of acts that occurred at Corcoran State Prison in Corcoran, California. His allegations may be summarized essentially as follows.

         Non-party psychologist Jack Alvord reported that Plaintiff had made threats against staff members. Plaintiff was called to attend a Rules Violation Report (“RVR”) disciplinary proceeding before Lieutenant W. Brodie regarding the allegations. During the hearing, Brodie refused to make Alvord available by phone for questioning, despite Plaintiff's insistence that he do so. Brodie found Plaintiff guilty of the alleged violation and assessed Plaintiff a thirty day loss of credits.

         Plaintiff appealed the result of his disciplinary proceeding. The appeal was partially granted and the guilty finding was overturned.

         The disciplinary charge was reheard by Defendant Silva. Plaintiff submitted questions to be posed to Alvord. The questions were not answered and Silva did not attempt to contact Alvord by phone, stating that Alvord no longer worked at Corcoran. Plaintiff again was found guilty, resulting in a loss of good-time credits and a “point-hike” that keeps Plaintiff in a maximum security prison.

         Plaintiff submitted an appeal regarding his second disciplinary proceeding. However, he was transferred to another institution on July 7, 2016, and his subsequent inquiries regarding the appeal went unanswered.

         Plaintiff alleges that the rehearing by Silva violated his due process rights.

         III. Legal Standard - Motion to Dismiss

         A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim, and dismissal is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011). In resolving a 12(b)(6) motion, a court's review is generally limited to the operative pleading. Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). However, courts may properly consider matters subject to judicial notice and documents incorporated by reference in the pleading without converting the motion to ...


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