(PC) Martinez v. Rios ( 2019 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MIGUEL MARTINEZ, No. 2:17-CV-2445-JAM-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 C. RIOS, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the court is defendants’ unopposed motion to dismiss (ECF No. 19 15). 20 21 I. PLAINTIFF’S ALLEGATIONS 22 Plaintiff Miguel Martinez is currently a prisoner at High Desert State Prison 23 (HDSP) in Susanville, California. See ECF No. 1, pg. 1. Plaintiff names the following as 24 defendants: (1) C. Rios; (2) R. Cisneros; and (3) Lt. Davidge. Id. Plaintiff claims that these 25 defendants conspired to have him erroneously classified as a member of the street gang known as 26 “Salinas East Market St.” Id. at 3-4. Plaintiff contends that this misconduct resulted in violations 27 of his First and Fourteenth Amendment rights. Id. 28 /// 1 In May of 2016, Corrections Officer C. Rios initiated an investigation into 2 plaintiff’s suspected affiliation with the Salinas East Market St. gang. Id. at 5. Rios conducted an 3 interview with plaintiff and observed a red “M” on plaintiff’s chest which Rios noted as 4 representing “Market St.” in Salinas. Id. at 7. Rios also asked plaintiff how long he had been a 5 member of Salinas East Market St. and plaintiff allegedly responded “since I was fourteen years 6 old.” Id. (internal quotations omitted). Also, Rios observed a Mayan tattoo for the number four, a 7 common identifier for members of Norteno street gangs, including Salinas East Market St. Id. 8 Lastly, on May 16, 2016, Rios conducted a cell search and found a drawing in plaintiff’s personal 9 property with the initials “S-E-M.” Id. at 8. These initials are a common identifier for the Salinas 10 East Market St. gang. Id. On May 20, 2016, Rios allegedly provided all of these documents and 11 disclosures to plaintiff and received no opposition from him. See ECF No. 1, pg. 5. From this 12 investigation, Rios deemed there was enough evidence to identify plaintiff as a member of the 13 Salinas East Market St. gang. Id. The information from Rios’ investigation, along with an alleged 14 self-admission of gang-membership made by plaintiff in 2015, was compiled into a validation 15 packet by Lieutenant Davidge and sent to a prison official named Spralue for evaluation. Id. at 9. 16 On February 2, 2017, plaintiff was validated as a member of the Salinas East Market St. gang. Id. 17 Plaintiff appealed the gang validation on April 19, 2017. Id. at 10. In his appeal, 18 plaintiff asserted that that his validation was fraudulent and denied ever making self-admissions 19 in either 2015 or 2016. Id. Also, plaintiff alleges that Rios misrepresented facts. Id. at 12. Plaintiff 20 argued that Rios never mentioned that the “M” was a documented symbol of the Salinas East 21 Market St. gang. Id. Instead, plaintiff claimed the “M” represented the Minnesota Twins baseball 22 team. Id. Plaintiff also claimed that the letter “M” alone can’t be enough for gang determination. 23 Id. 24 Plaintiff alleges that on May 31, 2016, he tried to discuss his appeal to the gang 25 validation with Corrections Officer Cisneros and another officer, but they denied him the 26 opportunity. Id. at 12. On June 4, 2016, plaintiff made a second attempt to discuss his appeal with 27 Rios and another officer, but they again denied him the opportunity. Id. On May 19, 2017, 28 plaintiff’s appeal was denied. See ECF No. 1, pg. 11. 1 On June 6, 2017, plaintiff submitted another appeal regarding his gang validation. 2 Id. at 11, 13. Plaintiff argued that his alleged “self-admission” was manipulated and that he 3 simply told the interviewers that he “grew up” on the East Side of Salinas, around Market St., not 4 that he was gang affiliated. Id. at 11. Plaintiff also claimed that contentions by interviewers, such 5 as that he was provided the opportunity to be heard, were “lies.” Id. at 13 Plaintiff contended in 6 his appeal that they did not hear him out and took the position that his case had “no merit.” Id. On 7 August 31, 2017, this appeal was also denied. See id. at 11. 8 In conjunction with these factual allegations, plaintiff alleges Rios: (1) violated 9 numerous prison policies; (2) initiated the gang validation investigation for retaliatory purposes; 10 and (3) fabricated the documents of “self-admission.” See id. at 3. Plaintiff further alleges that 11 Cisneros: (1) conspired with Rios to undermine plaintiff’s investigation and defense against his 12 gang validation; (2) was assigned as plaintiff’s “investigative employee,” which presented a 13 conflict of interest since Cisneros was also involved in the gang validation; and (3) conspired with 14 Rios to retaliate against plaintiff and “screw him over” for making Cisneros’ cousin, a prison 15 employee, “do paperwork.” Id. Finally, plaintiff alleges that Lt. Davidge: (1) submitted 16 validation documents that were fabricated; and (2) failed to independently confirm the reliability 17 of said documents. Id. 18 19 II. STANDARD OF REVIEW 20 In considering a motion to dismiss, the court must accept all allegations of material 21 fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The court must 22 also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 23 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 24 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or 25 doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 26 421 (1969). However, legally conclusory statements, not supported by actual factual allegations, 27 need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). In addition, pro se 28 pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v. 1 Kerner, 404 U.S. 519, 520 (1972). 2 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement 3 of the claim showing that the pleader is entitled to relief” in order to “give the defendant fair 4 notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp v. Twombly, 5 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order 6 to survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must contain 7 more than “a formulaic recitation of the elements of a cause of action;” it must contain factual 8 allegations sufficient “to raise a right to relief above the speculative level.” Id. at 555-56. The 9 complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 10 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the 11 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 12 Iqbal, 129 S. Ct. at 1949. “The plausibility standard is not akin to a ‘probability requirement,’ but 13 it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting 14 Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a 15 defendant’s liability, it ‘stops short of the line between possibility and plausibility for entitlement 16 to relief.” Id. (quoting Twombly, 550 U.S. at 557). 17 In deciding a Rule 12(b)(6) motion, the court generally may not consider materials 18 outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); 19 Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1) 20 documents whose contents are alleged in or attached to the complaint and whose authenticity no 21 party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question, 22 and upon which the complaint necessarily relies, but which are not attached to the complaint, see 23 Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials 24 of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 25 1994). 26 Finally, leave to amend must be granted “[u]nless it is absolutely clear that no 27 amendment can cure the defects.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per 28 curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc). 1 III. DISCUSSION 2 In their unopposed motion to dismiss, defendants argue that plaintiff has failed to 3 state a valid First Amendment retaliation claim against defendant Rios because: (1) plaintiff’s 4 allegations of a “retaliatory purpose” are conclusory and do not identify any protected conduct; 5 and (2) plaintiff does not allege that the retaliation chilled his First Amendment rights. See ECF 6 No. 15-1, pgs. 2-3. Defendants also argue that plaintiff has failed to state a valid Fourteenth 7 Amendment due process claim against any defendant because plaintiff does not identify the 8 deprivation of a protected liberty interest. Id. at 3-4. Defendants’ motion is silent as to plaintiff’s 9 allegations of retaliation by defendant Cisneros. 10 A. Retaliation 11 In order to state a claim under 42 U.S.C. § 1983 for retaliation, the prisoner must 12 establish that he was retaliated against for exercising a constitutional right, and that the retaliatory 13 action was not related to a legitimate penological purpose, such as preserving institutional 14 security. See Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam). In meeting 15 this standard, the prisoner must demonstrate a specific link between the alleged retaliation and the 16 exercise of a constitutional right. See Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995); 17 Valandingham v. Bojorquez, 866 F.2d 1135, 1138-39 (9th Cir. 1989). The prisoner must also 18 show that the exercise of First Amendment rights was chilled, though not necessarily silenced, by 19 the alleged retaliatory conduct. See Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000), see also 20 Rhodes v. Robinson, 408 F.3d 559, 569 (9th Cir. 2005). Thus, the prisoner plaintiff must 21 establish the following in order to state a claim for retaliation: (1) prison officials took adverse 22 action against the inmate; (2) the adverse action was taken because the inmate engaged in 23 protected conduct; (3) the adverse action chilled the inmate’s First Amendment rights; and (4) the 24 adverse action did not serve a legitimate penological purpose. See Rhodes, 408 F.3d at 5 25 As to the chilling effect, the Ninth Circuit in Rhodes observed: “If Rhodes had not 26 alleged a chilling effect, perhaps his allegations that he suffered harm would suffice, since harm 27 that is more than minimal will almost always have a chilling effect.” Id. at n.11. By way of 28 example, the court cited Pratt in which a retaliation claim had been decided without discussing 1 chilling. See id. This citation is somewhat confusing in that the court in Pratt had no reason to 2 discuss chilling because it concluded that the plaintiff could not prove the absence of legitimate 3 penological interests. See Pratt, 65 F.3d at 808-09. Nonetheless, while the court has clearly 4 stated that one of the “basic elements” of a First Amendment retaliation claim is that the adverse 5 action “chilled the inmates exercise of his First Amendment rights,” id. at 567-68, see also 6 Resnick, 213 F.3d at 449, the comment in Rhodes at footnote 11 suggests that adverse action 7 which is more than minimal satisfies this element. Thus, if this reading of Rhodes is correct, the 8 chilling effect element is essentially subsumed by adverse action. 9 1. Defendant Rios 10 Defendants make the following argument as to plaintiff’s retaliation claims: 11 . . .Plaintiff’s claim that Defendant Rios initiated an investigation into his suspected membership and/or association with a security threat 12 group for “retaliatory purposes” is conclusory, See Iqbal, 556 U.S. at 678 (conclusory statements insufficient to state a claim), and does not identify 13 what protected conduct he was engaged in or that the alleged retaliation chilled the exercise of his First Amendment rights. See Cox v. Ashcroft, 14 603 F. Supp. 2d 1261, 1271 (E.D. Cal. 2009) (“To make out a prima facie case of retaliation, the plaintiff has the burden of showing that retaliation 15 for the exercise of a protected right was the but-for factor behind the defendant’s conduct.”); See also, e.g., Teahan v. Wilhelm, 481 F. Supp. 2d 16 1115, 1120 (S.D. Cal. 2007) (no cognizable claim for retaliation where plaintiff failed to show that he was engaged in constitutionally protected 17 conduct).” 18 ECF No. 15-1, pg. 3. 19 Defendants present no argument concerning plaintiff’s retaliation claim against defendant 20 Cisneros. 21 Defendants’ argument is persuasive. According to plaintiff, defendant Rios 22 “initiated this investigation [into plaintiff’s gang affiliation] for retaliatory purposes that served 23 no penological interest.” ECF No. 1, pg. 3. As defendants note, plaintiff has not alleged that the 24 gang affiliation investigation was initiated because plaintiff was engaged in protected activity. 25 Nor can he. As defendants also note, plaintiff does not allege that he was engaged in any 26 protected conduct prior to initiation of the gang affiliation investigation. Thus, plaintiff fails to 27 allege any facts to support his conclusory statement that defendant Rios initiated the gang 28 validation investigation for a retaliatory purpose. Plaintiff should be provided an opportunity to 1 amend to allege further facts to support his contention that defendant Rios retaliated against him 2 by initiating the gang validation process. 3 2. Defendant Cisneros 4 Plaintiff alleges defendant Cisneros “conspired with c/o Rios to get plaintiff 5 validated in order to retaliate against plaintiff and to ‘screw him over for making his (i.e., 6 Cisneros’) cousin do paperwork.’” ECF No. 1, pg. 4. This allegation, which the court has found 7 sufficient to state a retaliation claim against defendant Cisneros, is not challenged by defendants 8 in the current motion. 9 B. Due Process 10 The Due Process Clause protects prisoners from being deprived of life, liberty, or 11 property without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to 12 state a claim of deprivation of due process, a plaintiff must allege the existence of a liberty or 13 property interest for which the protection is sought. See Ingraham v. Wright, 430 U.S. 651, 672 14 (1977); Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972). 15 Liberty interests can arise both from the Constitution and from state law. See 16 Hewitt v. Helms, 459 U.S. 460, 466 (1983); Meachum v. Fano, 427 U.S. 215, 224-27 (1976); 17 Smith v. Sumner, 994 F.2d 1401, 1405 (9th Cir. 1993). In determining whether state law confers 18 a liberty interest, the Supreme Court has adopted an approach in which the existence of a liberty 19 interest is determined by focusing on the nature of the deprivation. See Sandin v. Connor, 515 20 U.S. 472, 481-84 (1995). In doing so, the Court has held that state law creates a liberty interest 21 deserving of protection only where the deprivation in question: (1) restrains the inmate’s freedom 22 in a manner not expected from the sentence; and (2) “imposes atypical and significant hardship on 23 the inmate in relation to the ordinary incidents of prison life.” Id. at 483-84 24 Here, defendants argue: 25 . . .Plaintiff has failed to state a cognizable substantive due process claim under the Fourteenth Amendment based on his allegation that 26 Defendant Rios fabricated documents because he has alleged no facts indicating that these alleged fabricated documents were used to deprive 27 him of his liberty (e.g., the documents were used to support a criminal charge). Spencer v. Peters, 857 F.3d 789, 798 (9th Cir. 2017) (to prevail 28 on a Devereaux claim, a plaintiff must prove deliberate fabrication of 1 evidence, and that the fabrication caused a deprivation of liberty).” 2 * * * 3 . . .Plaintiff has not stated a cognizable procedural due process claim under the Fourteenth Amendment because he has not alleged any 4 facts indicating that his validation adversely affected a constitutionally protected liberty or property interest. See, e.g., Chappell v. Mandeville, 5 706 F.3d 1052, 1062-63 (9th Cir. 2013) (plaintiff’s due process claim failed because he could not identify a liberty interest under the Fourteenth 6 Amendment).” 7 ECF No. 15-1, pgs. 3-4. 8 This court finds defendants’ arguments persuasive. Plaintiff alleges that defendants 9 violated his due process rights by conspiring to put forth fabricated evidence and wrongly classify 10 him as a member of a street gang. See ECF No. 1, pgs. 3-4. As noted above, a change in a 11 prisoner’s confinement that imposes an “atypical and significant hardship on the inmate in 12 relation to the ordinary incidents of prison life” may give rise to a due process claim. See Sandin, 13 515 U.S. at 83-84. Also, as this court has acknowledged, the fraudulent or malicious identification 14 of a prisoner as a member of a “security threat group” may give rise to a due process claim. See 15 Castro v. Terhune, 712 F.3d 1304, 1313-14 (9th Cir. 2013); Rios v. Tilton, No. 2:07-cv-0790 16 KJN P, 2016 U.S. Dist. LEXIS 241, at *6-7 n.2 (E.D. Cal. Jan. 4, 2016). However, plaintiff has 17 failed to allege facts which explain how, or if, his classification as a member of a street gang has 18 adversely affected his liberty interests. It is unclear what deprivation or injury plaintiff alleges to 19 have suffered in relation to being validated as a member of the Salinas East Market St. gang. As 20 such, plaintiff has not properly articulated a due process claim. Plaintiff should be granted leave 21 to amend. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 IV. CONCLUSION 2 Based on the foregoing, the undersigned recommends that: 3 1. Defendants’ unopposed motion to dismiss (ECF No. 15) be granted; 4 2. Plaintiff's retaliation claim against defendant Rios be dismissed with leave 5 | to amend; 6 3. Plaintiff's due process claims against all defendants be dismissed with 7 | leave to amend; and 8 4. Plaintiff be advised that the failure to file a first amended complaint within 9 | the time provided shall result in dismissal of all claims and defendants except plaintiff's 10 | retaliation claim against defendant Cisneros only. 11 These findings and recommendations are submitted to the United States District 12 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days 13 | after being served with these findings and recommendations, any party may file written objections 14 | with the court. Responses to objections shall be filed within 14 days after service of objections. 15 | Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 16 | Yist, 951 F.2d 1153 (9th Cir. 1991). 17 18 19 | Dated: November 5, 2019 20 DENNIS M. COTA 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28