(PC) McBounds v. Clays ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARK MCBOUNDS, No. 2:19-cv-2208 KJM KJN P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 D. CLAYS, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se. This action proceeds on plaintiff’s 18 complaint against defendants Junes, Clays, Vina and Farran for alleged First and Fourteenth 19 Amendment violations. Before the court is defendants’ fully-briefed motion to dismiss plaintiff’s 20 First Amendment retaliation claim and Fourteenth Amendment denial of a property interest claim 21 against any defendant. As set forth below, the undersigned recommends that the motion to 22 dismiss be granted, and this action proceed solely as to plaintiff’s Fourteenth Amendment liberty 23 interest claims. 24 I. Plaintiff’s Complaint 25 Plaintiff, an African American, alleges that while he was housed at Mule Creek State 26 Prison (“MCSP”), defendants Junes, Clays, Vina and Farran retaliated against plaintiff for his 27 refusal to sign a chrono implicating him in a Mexican riot, despite the video surveillance 28 (reviewed while plaintiff was detained in a holding cell for four hours) demonstrating his non- 1 participation in the riot, as conceded by various prison staff, by wrongfully placing him in 2 administrative segregation and confiscating his personal property with the intention of depriving 3 him of pieces of property. In addition, defendants then violated plaintiff’s due process rights by 4 failing to provide due process beforehand by wrongfully placing him in administrative 5 segregation as punishment without cause, to enable such defendants to confiscate and not return 6 plaintiff’s personal property. 7 II. Motion to Dismiss: Legal Standards 8 Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for 9 “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In 10 considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court 11 must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89 12 (2007), and construe the pleading in the light most favorable to the plaintiff. Jenkins v. 13 McKeithen, 395 U.S. 411, 421 (1969); Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir. 14 1999). Still, to survive dismissal for failure to state a claim, a pro se complaint must contain more 15 than “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a 16 cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, 17 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 18 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 19 upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 570. 20 “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to 21 draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 22 U.S. at 678. Attachments to a complaint are considered to be part of the complaint for purposes 23 of a motion to dismiss for failure to state a claim. Hal Roach Studios v. Richard Reiner & Co., 24 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). The court “need not accept as true allegations 25 contradicting documents that are referenced in the complaint or that are properly subject to 26 judicial notice.” Lazy Y Ranch Ltd. V. Behrens, 546 U.S. F.3d 580, 588 (9th Cir. 2006). 27 A motion to dismiss for failure to state a claim should not be granted unless it appears 28 beyond doubt that the plaintiff can prove no set of facts in support of his claims which would 1 entitle him to relief. Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984). In general, pro se 2 pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 3 404 U.S. 519, 520 (1972). The court has an obligation to construe such pleadings liberally. Bretz 4 v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). However, the court’s liberal 5 interpretation of a pro se complaint may not supply essential elements of the claim that were not 6 pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 7 III. Civil Rights 8 To state a civil rights claim under § 1983, a plaintiff must allege: (1) the violation of a 9 federal constitutional or statutory right; and (2) that the violation was committed by a person 10 acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. 11 Williams, 297 F.3d 930, 934 (9th Cir. 2002). An individual defendant is not liable on a civil 12 rights claim unless the facts establish the defendant’s personal involvement in the constitutional 13 deprivation or a causal connection between the defendant’s wrongful conduct and the alleged 14 constitutional deprivation. See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. 15 Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978). That is, plaintiff may not sue any official on the 16 theory that the official is liable for the unconstitutional conduct of his or her subordinates. 17 Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 18 In sum, plaintiff must identify the particular person or persons who violated his rights, set 19 forth specific factual allegations as to how such person violated plaintiff’s rights, and identify the 20 relief he seeks that is available under 42 U.S.C. § 1983. 21 IV. Discussion 22 A. Retaliation 23 As set forth above, plaintiff contends that defendants retaliated against plaintiff because he 24 refused to sign the peaceful coexistence chrono, and placing him in administrative segregation did 25 not serve a legitimate penological goal because video evidence demonstrated he was not involved 26 in the prison riot. Defendants argue that plaintiff’s refusal to sign the chrono is not conduct 27 protected under the First Amendment. Defendants further contend that because plaintiff admitted 28 he refused to disavow enemy and safety concerns (even if not involved in the riot), placement into 1 administrative segregation was required for his safety and the safety of others on the facility. As 2 discussed below, the undersigned recommends that plaintiff’s retaliation claim be dismissed. 3 “Prisoners have a First Amendment right to file grievances against prison officials and to 4 be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) 5 (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). A viable retaliation claim in the 6 prison context has five elements: “(1) An assertion that a state actor took some adverse action 7 against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) 8 chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably 9 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 10 2005). 11 Retaliation claims are not limited to the First Amendment. “A prisoner suing prison 12 officials under section 1983 for retaliation must allege that he was retaliated against for exercising 13 his constitutional rights and that the retaliatory action does not advance legitimate penological 14 goals, such as preserving institutional order and discipline.” Barnett v. Centoni, 31 F.3d 813, 15 815-16 (9th Cir. 1994). Exercising the Fifth Amendment right against self-incrimination can be 16 protected conduct. Bridges v. Hubbard, 2013 WL 3773886, at *9 (E.D. Cal. July 17, 2013), 17 adopted, 2013 WL 5230239 (E.D. Cal. Sept. 16, 2013) (finding that prisoner was engaged in 18 protected conduct when he exercised his Fifth Amendment right against self-incrimination). 19 Here, plaintiff maintains that his protected conduct was his refusal to sign the peaceful 20 coexistence chronos because he believed such chronos implicated him in a riot in which he was 21 not involved, and signing such chronos would negatively impact his chances for parole. (ECF 22 No. 36 at 3-4.) However, plaintiff’s complaint makes clear that plaintiff was not facing discipline 23 for any involvement in the June 7, 2019 riot. Indeed, plaintiff states that video surveillance 24 cleared plaintiff of any involvement, and plaintiff was not issued a rules violation for any such 25 involvement. Similarly, the chronos were not being used to investigate plaintiff’s potential role in 26 the riot, or to support charges based on any alleged involvement. Unlike the prisoner in Bridges, 27 who was being investigated for conspiracy to murder peace officers and was ultimately issued a 28 rules violation for such charges, plaintiff was not facing disciplinary action for any potential role 1 in the June 7, 2019 riot. Thus, the undersigned cannot construe plaintiff’s refusal to sign a 2 peaceful coexistence chrono as protected conduct under the Fifth Amendment. Because plaintiff 3 has not identified conduct protected under the First or Fifth Amendments, his retaliation claim 4 fails, and the court need not address whether plaintiff’s subsequent placement in administrative 5 segregation advanced a legitimate correctional goal. 6 B. Due Process Claim re Deprivation of Property 7 Defendants argue that plaintiff cannot state a claim for deprivation of property under the 8 Due Process Clause of the Fourteenth Amendment. Although the court did not find that plaintiff 9 stated a claim based on such theory, defendants are correct. Plaintiff cannot state a cognizable 10 civil rights claim based solely on the unauthorized intentional taking of his property. The United 11 States Supreme Court has held that “an unauthorized intentional deprivation of property by a state 12 employee does not constitute a violation of the procedural requirements of the Due Process 13 Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is 14 available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984). Thus, where the state provides a 15 meaningful postdeprivation remedy, only authorized, intentional deprivations constitute 16 actionable violations of the Due Process Clause. An authorized deprivation is one carried out 17 pursuant to established state procedures, regulations, or statutes. Piatt v. McDougall, 773 F.2d 18 1032, 1036 (9th Cir. 1985); see also Knudson v. City of Ellensburg, 832 F.2d 1142, 1149 (9th 19 Cir. 1987). Here, plaintiff alleged no facts suggesting that the deprivation was authorized. The 20 California Legislature provided a remedy for tort claims against public officials in the California 21 Government Code, §§ 900, et seq. Because plaintiff has not attempted to seek redress in the state 22 system, he cannot sue in federal court on a claim that the state deprived him of property without 23 due process of the law. 24 V. Requests for Judicial Notice 25 A. Plaintiff’s Request for Judicial Notice 26 In his request, plaintiff cites multiple cases arising from inmates’ complaints alleging 27 retaliation by prison staff at MCSP, and argues that such cases demonstrate that MCSP has a 28 custom or policy of taking retaliatory acts against inmates who exercise their First Amendment 1 rights. (ECF No. 25 at 3.) Defendants oppose plaintiff’s request, arguing that it is improper for 2 the court to take judicial notice of disputed facts, and plaintiff failed to show any relation between 3 the cited cases and plaintiff’s theory that such retaliatory policy exists without reasonable dispute. 4 (ECF No. 26 at 2.) 5 A federal court may take judicial notice of facts “not subject to reasonable dispute.” Fed. 6 R. Evid. 201(b). 7 Here, it appears plaintiff seeks to establish the factual findings or legal conclusions from 8 the cited cases rendering judicial notice inappropriate. See Wyatt v. Terhune, 315 F.3d 1108, 9 1114 n.5 (9th Cir. 2003)1 (“Factual findings in one case ordinarily are not admissible for their 10 truth in another case through judicial notice.”); Jernigan v. Cal. Dep’t of Corr. & Rehab., 2011 11 WL 255798, at *1 n.3 (N.D. Cal. Jan. 24, 2011) (“While judicial notice of the existence of 12 documents filed in a court proceeding may be proper, it does not permit any assertions of fact or 13 legal conclusions within those documents to be treated as conclusively established[.]”). 14 On the other hand, to the extent plaintiff cites such cases to support his arguments, judicial 15 notice is not required. Rather, the court considers the reasoning supporting such decisions for 16 whatever persuasive value they may have. See Banneck v. HSBC Bank USA, N.A., 2016 WL 17 3383960 at *2 (N.D. Cal. June 20, 2016) (judicial notice of orders in other cases unnecessary); 18 see also DeJesus Rodriguez v. Unknown-Named Disciplinary Hearings Agent, 2010 WL 3125953 19 at *2 (E.D. Cal. Aug. 6, 2010) (unnecessary for plaintiff to file a separate request for judicial 20 notice of a statute in support of his position -- “[r]eference to any statutes, law or other authority 21 should be included in the motion and/or memorandum of points and authorities that seek 22 affirmative relief.”). 23 Therefore, plaintiff’s request for judicial notice is denied. 24 B. Defendants’ Request for Judicial Notice 25 Relying on Federal Rule of Evidence 201(b)(2), defendants request the court take judicial 26 notice of California Code of Regulations, Title 15 § 3335, which defendants contend governed 27 1 Wyatt was overruled on other grounds by Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014). 28 1 placement of inmates into administrative segregation in 2019.2 (ECF No. 23.) Plaintiff does not 2 appear to dispute that such regulation was in effect in 2019, but argues that such regulation does 3 not provide for an inmate’s placement in administrative segregation based on his refusal to sign a 4 peaceful coexistence chrono. (ECF No. 36 at 10-11.) 5 In light of the undersigned’s finding that plaintiff failed to identify protected conduct to 6 support his retaliation claim, it is unnecessary for the court to consider § 3335 at this stage of the 7 proceedings. Thus, the court declines to take judicial notice of such regulation without prejudice. 8 VI. Conclusion 9 Accordingly, IT IS ORDERED that: 10 1. Plaintiff’s request for judicial notice (ECF No. 25) is denied; and 11 2. Defendants’ request for judicial notice (ECF No. 23) is denied without prejudice. 12 Further, IT IS RECOMMENDED that: 13 1. Defendants’ motion to dismiss (ECF No. 22) be granted; 14 2. Plaintiff’s retaliation claims be dismissed with prejudice; 15 3. Plaintiff’s claim for violation of the Due Process Clause arising from the loss of his 16 personal property be dismissed without prejudice; and 17 4. Defendants be ordered to answer plaintiff’s remaining Fourteenth Amendment liberty 18 interest claims within fourteen days of any order adopting these findings and recommendations. 19 These findings and recommendations are submitted to the United States District Judge 20 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days 21 after being served with these findings and recommendations, any party may file written 22 objections with the court and serve a copy on all parties. Such a document should be captioned 23 2 “When an inmate’s presence in an institution’s General Population (GP) inclusive of the 24 Restricted Custody General Population (RCGP) facility presents an immediate threat to the safety of the inmate or others, endangers institution security or jeopardizes the integrity of an 25 investigation of an alleged serious misconduct, criminal activity, or the safety of any person, the inmate shall be immediately removed from the GP and placed in administrative segregation. 26 Administrative segregation may be accomplished by confinement in a designated Administrative 27 Segregation Unit (ASU) or, in an emergency, to any single cell unit capable of providing secure segregation. CDCR staff shall not place inmates into a SHU, ASU, or the SDP solely on the basis 28 of their validation status.” Cal. Code Regs., Title 15 § 3335. 1 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 2 || objections shall be filed and served within fourteen days after service of the objections. The 3 || parties are advised that failure to file objections within the specified time may waive the right to 4 | appeal the District Court’s order. Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 5 || Dated: August 26, 2021 Foci) Aharon 7 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE mebo2208.mtd 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28