(PC) Dixon v. Navarro ( 2021 )

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 FOR THE EASTERN DISTRICT OF CALIFORNIA 11 12 DELMAR JEWELL DIXON, Jr., No. 2:19-cv-1966 KJM JDP (PC) 13 Plaintiff, 14 v. ORDER 15 JOE LIZARRAGA, et al., 16 Defendants. 17 18 Plaintiff, an incarcerated person proceeding pro se, has filed this civil rights action seeking 19 relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as 20 provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 Plaintiff has filed four complaints. Plaintiff amended the first complaint as of right. See 22 First Am. Compl., ECF No. 10. Plaintiff amended his complaint twice more when the original 23 magistrate judge screened plaintiff’s complaint for failure to state a claim but granted leave to 24 amend to cure deficiencies. See Order (April 28, 2020), ECF No. 15; Second Am. Compl., ECF 25 No. 18; Order (August 27, 2020), ECF No. 20; Third Am. Compl., ECF No. 22. 26 On November 18, 2020, the current magistrate judge filed findings and recommendations 27 (F&Rs) related to plaintiff’s third amended complaint, which were served on plaintiff and which 28 contained notice to plaintiff that any objections to the findings and recommendations were to be 1 filed within thirty days. F&Rs, ECF No. 24. Plaintiff has filed objections to the findings and 2 recommendations. Objections, ECF Nos. 29, 30. 3 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 4 court has conducted a de novo review of this case. For the reasons explained below, the court 5 adopts the magistrate judge’s findings and recommendations except for the following excerpts: 6 3:27–4:16 and 5:13–22. 7 Federal courts must preliminarily screen any case in which an incarcerated person seeks 8 redress from a governmental officer or employee. See 28 U.S.C. § 1915A(a). A court must 9 dismiss an imprisoned person’s complaint if the action “is frivolous or malicious, fails to state a 10 claim on which relief may be granted, or seeks monetary relief against a defendant who is 11 immune from such relief.” 28 U.S.C. § 1915(e)(2). A court dismisses a complaint for failure to 12 state a claim using the same standard set forth in Federal Rule of Civil Procedure 12(b)(6). 13 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). “In determining whether a complaint 14 states a claim, all allegations of material fact are taken as true and construed in the light most 15 favorable to the plaintiff.” Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). 16 “Dismissal is proper only if it is clear that the plaintiff cannot prove any set of facts in support of 17 the claim that would entitle him to relief.” Watison, 668 F.3d at 1112. When the petitioner is pro 18 se, especially in civil rights cases, the court has an obligation to “construe the pleadings liberally 19 and to afford the petitioner the benefit of any doubt.” Byrd v. Phoenix Police Dep’t, 885 F.3d 639, 20 642 (9th Cir. 2018). 21 Here, the court cannot find that the plaintiff ultimately “cannot prove any set of facts in 22 support of [a] claim that would entitle him to relief,” Watison, 668 F.3d at 1112, with respect to 23 his due process claim.1 Plaintiff alleges he received a prison rules violation, which resulted in a 24 loss of privileges, time in administrative segregation, a SHU term, and potentially also a loss of 25 26 1 As the magistrate judge notes, plaintiff’s complaint is at times difficult to follow. However, liberally construed, the court finds plaintiff has raised a due process claim regarding the allegedly 27 unconstitutional procedures that resulted in his potentially unconstitutional administrative segregation. See Third Am. Compl. at 6 (fact 37), 18 (fact 16), 20 (facts 11, 13), 21 (fact 20), 24 28 (facts 19, 20). 1 good time credits. See Third Am. Compl. at 6, 18, 20. While it is correct an incarcerated 2 person’s due process rights are only implicated when facing an “atypical and significant hardship 3 . . . in relation to the ordinary incidents of prison life[,]” plaintiff’s complaint contains sufficient 4 information for plaintiff to proceed with his claim that his alleged experience fits within those 5 restrictive parameters. Sandin v. Conner, 515 U.S. 472, 484 (1995). Again, petitioner may 6 ultimately not be able to meet the high bar set by Sandin, but the court does not believe it is 7 sufficient to simply note that “lengthy stays in administrative segregation sometimes do not 8 amount to an atypical, significant deprivation,” as a basis for concluding plaintiff cannot plead a 9 claim here. See F&Rs at 4:9-16. 10 In the interest of efficiency, the court directs plaintiff’s third amended complaint and most 11 recent findings and recommendations to be served on defendant Senior Assistant Attorney 12 General, Monica Anderson, along with this order. Ms. Anderson will inform the court within 21 13 days whether she will accept service on behalf of all defendants for the purpose of answering the 14 complaint. If Ms. Anderson agrees, in her responsive filing she shall attach the relevant rules 15 violation report. 16 Accordingly, IT IS HEREBY ORDERED that: 17 1. The findings and recommendations filed November 18, 2020, are adopted in part as to 18 plaintiff’s Ex Post Facto claim, Sixth Amendment claim, Eighth Amendment and Equal 19 Protection Clause claims but otherwise denied. 20 2. The Clerk of Court is directed to serve plaintiff’s third amended complaint, ECF No. 21 22, the magistrate judge’s most recent findings and recommendations, ECF No. 24, and this order 22 on Monica Anderson, Senior Assistant Attorney General. 23 3. Ms. Anderson shall inform the court within 21 days whether she will accept service on 24 behalf of all defendants for the purpose of answering the remaining due process claim in the 25 plaintiff’s operative complaint. 26 4. This case is referred back to the assigned magistrate judge for further proceedings 27 consistent with this order. 28 DATED: September 30, 2021.