(PC) Spencer v. Valdez ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 8 EASTERN DISTRICT OF CALIFORNIA 9 EDWARD B. SPENCER, Case No. 1:23-cv-00357-JLT SAB (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATIONS 11 RECOMMENDING DISMISSAL OF STATE v. LAW CLAIMS 12 L. VALDEZ, et al., (ECF No. 13) 13 Defendants. 14 15 16 Plaintiff Edward B. Spencer is proceeding pro se and in forma pauperis in this civil rights 17 action filed pursuant to 42 U.S.C. § 1983. 18 Currently before the Court is Plaintiff’s first amended complaint, filed April 24, 2023. 19 I. 20 SCREENING REQUIREMENT 21 The Court is required to screen complaints brought by prisoners seeking relief against a 22 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 23 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 24 “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that 25 “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 26 1915(e)(2)(B); see also 28 U.S.C. § 1915A(b). 27 A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 1 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 2 statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic 3 Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each 4 defendant personally participated in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 5 F.3d 930, 934 (9th Cir. 2002). 6 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 7 liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 8 1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be 9 facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer 10 that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss 11 v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant 12 has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s 13 liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d 14 at 969. 15 II. 16 SUMMARY OF ALLEGATIONS 17 The Court accepts Plaintiff’s allegations in his complaint as true only for the purpose of 18 the screening requirement under 28 U.S.C. § 1915. 19 On May 21, 2022, Plaintiff heard an unknown officer inform Defendant Valdez that 20 Plaintiff likes to file appeals and lawsuits, to which Valdez stated “I know.” Defendant Valdez 21 asked where Plaintiff’s bunk was located. Defendant Valdez intentionally confiscated Plaintiff’s 22 Massey fan, with a retaliatory intent because he was informed by an officer that Plaintiff likes to 23 file appeals and lawsuits against staff. 24 On or about January 2022, while Plaintiff was on the yard Defendant Parra told him to 25 stop filing inmate appeals and lawsuits. 26 Defendants Valdez and Parra failed to provide a written document (receipt) for taking 27 Plaintiff’s Massey fan and never refused this statement in his appeal. 1 Plaintiff’s fan was confiscated in retaliation for Plaintiff filing lawsuits in two other cases 2 in this Court. 3 Defendant Valdez confiscated Plaintiff’s fan but failed to take his cellmates fan who was 4 in the same situation as Plaintiff, which lacked penological justification in taking one fan and not 5 another in the same condition. Plaintiff requested to view and retain Defendants Valdez and 6 Parra’s body camera. 7 Defendants’ actions were in contravention of the Department Operations Manual and 8 Policy and Title 15 of the California Code of Regulations. 9 III. 10 DISCUSSION 11 A. Retaliation 12 Retaliation by a state actor for the exercise of a constitutional right is actionable under 42 13 U.S.C. § 1983 even if the act, when taken for different reasons, would have been proper. See Mt. 14 Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283–84 (1977). Retaliation, though 15 it is not expressly referred to in the Constitution, is actionable because retaliatory actions may 16 tend to chill individuals' exercise of constitutional rights. See Perry v. Sindermann, 408 U.S. 17 593, 597 (1972). 18 A viable claim of First Amendment retaliation entails five basic elements: (1) An assertion 19 that a state actor took some adverse action against an inmate (2) because of (3) 20 that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First 21 Amendment rights, and (5) the action did not reasonably advance a legitimate correctional 22 goal.” Rhodes v. Robinson, 408 F.3d 559, 567–68 (internal citation omitted). 23 Liberally construed, Plaintiff’s allegations state a cognizable claim for retaliation against 24 Defendants L. Valdez and D. Parra. 25 B. California Code of Regulation Violations 26 Plaintiff contends that Defendants’ actions were in contravention of Title 15 and the 27 CDCR Department Operations Manual. 1 Plaintiff cannot state a cognizable claim for violation of protocols. To the extent that 2 Defendants have not complied with applicable state statutes or prison regulations, this deprivation 3 does not support a claim under § 1983. Section 1983 only provides a cause of action for the 4 deprivation of federally protected rights. “To the extent that the violation of a state law amounts 5 to the deprivation of a state-created interest that reaches beyond that guaranteed by the federal 6 Constitution, [s]ection 1983 offers no redress.” Sweaney v. Ada Cty., Idaho, 119 F.3d 1385, 1391 7 (9th Cir. 1997) (quoting Lovell v. Poway Unified Sch. Dist., 90 F.3d 367, 370 (9th Cir. 8 1996)); Davis v. Kissinger, No. CIV S-04-0878-GEB-DAD-P, 2009 WL 256574, *12 n. 4 (E.D. 9 Cal. Feb. 3, 2009). Nor is there any liability under § 1983 for violating prison policy. Cousins v. 10 Lockyer, 568 F.3d 1063, 1070 (9th Cir. 2009) (quoting Gardner v. Howard, 109 F.3d 427, 430 11 (8th Cir. 1997)). There is no independent cause of action for a violation of Title 15 12 regulations. See, e.g., Parra v. Hernandez, No. 08cv0191-H (CAB), 2009 WL 3818376, at *3 13 (S.D. Cal. Nov. 13, 2009) (granting motion to dismiss prisoner prisoner’s claims brought pursuant 14 to Title 15 of the California Code of Regulations); Chappell v. Newbarth, No. 1:16-cv-01378- 15 OWW-WMW (PC), 2009 WL 1211372, at *9 (E.D. Cal. May 1, 2009) (holding that there is no 16 private right of action under Title 15 of the California Code of Regulations). 17 Thus, the violation of any state law or regulation that reaches beyond the rights protected 18 by the federal Constitution and/or the violation of any prison regulation, rule or policy does not 19 amount to a cognizable claim under federal law, nor does it amount to any independent cause of 20 action under § 1983. Further, the existence of Title 15 regulations, an operations manual, 21 and operating procedures governing the conduct of prison officials does not necessarily entitle an 22 inmate to sue civilly for their violation. The Court has found no authority to support a finding of 23 an implied private right of action under these authorities, and Plaintiff has provided none. Several 24 district court decisions hold that there is no such right. See, e.g., Vasquez v. Tate, No. 1:10–cv– 25 1876–JLT (PC), 2012 WL 6738167, at *9 (E.D. Cal. Dec. 28, 2012); Davis v. Powell, 901 26 F.Supp.2d 1196, 1211 (S.D. Cal.2012). Accordingly, Plaintiff cannot maintain a § 1983 claim 27 for violations of Title 15, other California law, or correctional protocols. IV. RECOMMENDATIONS ° Based on the foregoing, it is HEREBY RECOMMENDED that: ‘ 1. This action proceed on Plaintiff's retaliation claim against Defendants L. Valdez ° and D. Parra; and 2. Plaintiffs state law claims be dismissed for failure to state a cognizable claim for 7 relief. 8 These Findings and Recommendations will be submitted to the United States District 9 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 10 | fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may 11 | file written objections with the Court. The document should be captioned “Objections to 12 | Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 13 | objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 14 | Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 15 Cir. 1991)). 16 17 18 IS SO ORDERED. nf ee 19 Pated: _April 26, 2023 _ _ PFA ee UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28