Helvy v. Paramo ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 FRED WAYNE HELVY, Case No.: 3:20-cv-01144 JAH-MSB CDCR #H-72048, 12 ORDER DISMISSING FIRST Plaintiff, 13 AMENDED COMPLAINT vs. PURSUANT TO 28 U.S.C. § 1915(e)(2) 14 AND § 1915A(b)(1) 15 DANIEL PARAMO, et al., 16 Defendants. 17 18 19 20 21 I. Procedural History 22 On June 22, 2020, Frank Wayne Helvy (“Plaintiff”), incarcerated at California 23 Medical Facility (“CMF”) located in Vacaville, California, filed a civil rights Complaint 24 filed pursuant to 22 U.S.C. § 1983 (ECF No. 1). In addition, he filed a Motion to Proceed 25 In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). 26 On July 8, 2020, the Court GRANTED Plaintiff’s Motion to Proceed IFP and 27 DISMISSED his Complaint for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2) 28 and § 1915A(b)(1) (ECF No. 3). 1 Plaintiff was granted leave to file an amended pleading in order to correct the 2 deficiencies of pleading identified in the Court’s Order. (See id.) On August 27, 2020, 3 Plaintiff filed his First Amended Complaint (“FAC”) (ECF No. 5.) 4 II. Sua Sponte Screening per 28 U.S.C. § 1915(e)(2) and § 1915A 5 A. Standard of Review 6 Because Plaintiff is a prisoner and is proceeding IFP, his FAC requires a pre- 7 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 8 statutes, the Court must sua sponte dismiss a prisoner's IFP complaint, or any portion of 9 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 10 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 11 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 12 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 13 the targets of frivolous or malicious suits need not bear the expense of responding.’” 14 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citations omitted). 15 “The standard for determining whether a plaintiff has failed to state a claim upon 16 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 17 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 18 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 19 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 20 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 21 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 22 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 23 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 24 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 25 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 26 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 27 relief [is] ... a context-specific task that requires the reviewing court to draw on its 28 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 1 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 2 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 3 (9th Cir. 2009). 4 C. Plaintiff’s Allegations 5 Plaintiff alleges that he was in the Enhanced Outpatient Program (“EOP”) while he 6 was housed at the Richard J. Donovan Correctional Facility (“RJD”) in 2017. (See FAC 7 at 3.) On April 1, 2017, Plaintiff was issued a Rules Violation Report (“RVR”) based on 8 allegations of inappropriate behavior with his “assigned clinician,” Defendant Obregon. 9 (Id. at 3, 20.) On April 28, 2017, the “disciplinary hearing was held with [Defendant] 10 Soto as the hearing officer.” (Id. at 5.) Plaintiff alleges he “presented a 9-page defense 11 packet” but “a guilt finding was given based on corrupted application of the ‘some 12 evidence’ standard.” (Id.) 13 On May 23, 2017, Plaintiff claims that his “evening meal was disrupted by 14 [Defendant] Mesa who escorted Plaintiff to the P.S.U. building in cuffs.” (Id. at 6.) 15 Plaintiff further claims that Defendant Larios “rolled up” his personal property and he 16 was given an inventory property form to sign. (Id.) Plaintiff was “taken to Ad-Seg and 17 ordered to strip out.” (Id. at 7.) 18 On June 1, 2017, Plaintiff appeared before the Institution Classification Committee 19 (“ICC”) and was informed that he would be “retained 45 days in Ad-Seg for the staff 20 threat investigation.” (Id.) On July 3, 2017, Plaintiff “received the disciplinary hearing 21 results.” (Id.) On August 2, 2017, Plaintiff “was informed a staff separation order was 22 granted and transfer was recommended.” (Id. at 8.) Plaintiff was transferred to CMF on 23 August 27, 2017. (Id. at 9.) On September 22, 2017, when Plaintiff went to pick up his 24 personal property, he “discovered that over $500 worth was missing.” (Id. at 10.) 25 Plaintiff seeks “monetary damages, compensatory and punitive damages in an 26 amount to be determined at trial” and injunctive relief in the form of expunging the “guilt 27 finding” following the disciplinary hearing. (Id. at 17.) 28 / / / 1 D. Retaliation claims 2 Plaintiff alleges that Defendants “initiated a retaliatory series of adverse actions 3 solely to punish the Plaintiff for attempting to pursue his United States constitutional 4 rights.” (Id. at 14.) 5 Allegations of retaliation against a prisoner’s First Amendment rights to speech or 6 to petition the government may support a 1983 claim. Rizzo v. Dawson, 778 F.2d 527, 7 532 (9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); 8 Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). 9 A retaliation claim has five elements. Brodheim v. Cry, 584 F.3d 1262, 1269 (9th 10 Cir. 2009). First, Plaintiff must allege that the retaliated-against conduct is protected. 11 Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012). Second, Plaintiff must allege 12 Defendants took adverse action against him.1 Rhodes v. Robinson, 408 F.3d 559, 567 (9th 13 Cir. 2005). Third, Plaintiff must allege a causal connection between the adverse action 14 and the protected conduct.2 Watison, 668 F.3d at 1114. Fourth, Plaintiff must allege the 15 “official’s acts would chill or silence a person of ordinary firmness from future First 16 Amendment activities.” Rhodes, 408 F.3d at 568 (internal quotation marks and emphasis 17 omitted).3 Fifth, Plaintiff must allege “that the prison authorities’ retaliatory action did 18 not advance legitimate goals of the correctional institution....” Rizzo, 778 F.2d at 532; 19 Watison, 668 F.3d at 1114-15. 20 21 22 1 The adverse action need not be an independent constitutional violation. Pratt, 65 F.3d at 806. “[T]he 23 mere threat of harm can be an adverse action....” Brodheim, 584 F.3d at 1270. 24 2 Because direct evidence of retaliatory intent rarely can be pleaded in a complaint, allegation of a 25 chronology of events from which retaliation can be inferred is sufficient to survive dismissal. Watison, 668 F.3d at 1114 (citing Pratt, 65 F.3d at 808 (“[T]iming can properly be considered as circumstantial 26 evidence of retaliatory intent.”)). 27 3 “[A] plaintiff who fails to allege a chilling effect may still state a claim if he alleges he suffered some other harm,” Brodheim, 584 F.3d at 1269, that is “more than minimal,” Robinson, 408 F.3d at 568 n.11. 28 1 Here, Plaintiff’s retaliation claim fails because he fails to allege facts to show that 2 he was retaliated against because he was engaging in protected conduct. Plaintiff’s 3 claims are far from clear, but it appears that the purported retaliatory actions were the 4 issuance of the RVR and the subsequent disciplinary proceedings. However, Plaintiff 5 does not allege that either of these events were due to the filing of a grievance or other 6 protected conduct. Plaintiff does not allege that he ever filed a grievance against any of 7 the named Defendants before he was issued the RVR nor does he allege that he ever 8 verbally threatened to take action against Defendants. See Entler v. Gregoire, 872 F.3d 9 1031, 1039-40 (9th Cir. 2017) (Holding that both “verbal … [and] written … threats to 10 sue fall within the purview of the constitutionally protected right to file grievances.”) As 11 set forth above, the first element of a retaliation claim requires Plaintiff to allege that the 12 retaliated-against conduct is protected conduct. Watison, 668 F.3d at 1114. Plaintiff has 13 failed to do so. 14 Therefore, Plaintiff’s First Amendment retaliation claims are DISMISSED for 15 failing to state a claim. 16 E. Fourteenth Amendment due process claims 17 Plaintiff generally alleges that his Fourteenth Amendment due process rights were 18 violated during his disciplinary hearing. The Fourteenth Amendment provides that “[n]o 19 state shall ... deprive any person of life, liberty, or property, without due process of law.” 20 U.S. Const. amend. XIV, § 1. “The requirements of procedural due process apply only to 21 the deprivation of interests encompassed by the Fourteenth Amendment’s protection of 22 liberty and property.” Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972). “To state a 23 procedural due process claim, [a plaintiff] must allege ‘(1) a liberty or property interest 24 protected by the Constitution; (2) a deprivation of the interest by the government; [and] 25 (3) lack of process.’” Wright v. Riveland, 219 F.3d 905, 913 (9th Cir. 2000) (quoting 26 Portman v. Cnty. of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993)). 27 A prisoner is entitled to certain due process protections when he is charged with a 28 disciplinary violation. Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003) (citing 1 Wolff v. McDonnell, 418 U.S. 539, 564-571 (1974)). “Such protections include the rights 2 to call witnesses, to present documentary evidence and to have a written statement by the 3 fact-finder as to the evidence relied upon and the reasons for the disciplinary action 4 taken.” Id. 5 Plaintiff’s FAC is devoid of any factual allegation that he was deprived any of the 6 due process protections under Wolff. Therefore, Plaintiff’s Fourteenth Amendment due 7 process claims are DISMISSED for failing to state a claim. 8 F. Heck Bar 9 In addition, to the extent Plaintiff lost good time custody credits that were imposed 10 as a result of his disciplinary conviction and he seeks an expungement of his disciplinary 11 conviction, he faces an additional hurdle. See Heck v. Humphrey, 512 U.S. 477, 486-87 12 (1994). 13 State prisoners may not challenge the fact or duration of their confinement in a 14 section 1983 action; their remedy lies in habeas corpus instead. See Wilkinson v. Dotson, 15 544 U.S. 74, 78 (2005). Often referred to as the “favorable termination rule” or the “Heck 16 bar,” this limitation applies whenever state prisoners “seek to invalidate the duration of 17 their confinement--either directly through an injunction compelling speedier release or 18 indirectly through a judicial determination that necessarily implies the unlawfulness of 19 the State’s custody.” Id. at 81 (emphasis in original). Accordingly, “a state prisoner’s 20 § 1983 action is barred (absent prior invalidation)--no matter the relief sought (damages 21 or equitable relief), no matter the target of the prisoner’s suit (state conduct leading to 22 conviction or internal prison proceedings)--if success in that action would necessarily 23 demonstrate the invalidity of confinement or its duration.” Id. at 81-82. The favorable 24 termination rule applies to prison disciplinary proceedings if those proceedings resulted 25 in the loss of good-time or behavior credits. Edwards v. Balisok, 520 U.S. 641, 646-48 26 (1997). 27 Where “success in a ... [section] 1983 damages action would implicitly question 28 the validity of conviction or duration of sentence, the litigant must first achieve favorable 1 termination of his available state, or federal habeas, opportunities to challenge the 2 underlying conviction or sentence.” Muhammad v. Close, 540 U.S. 749, 751 (2004) 3 (citing Heck, 512 U.S. 477; Edwards, 520 U.S. at 648). A due process claim would be 4 barred unless Plaintiff can also show his disciplinary conviction has been reversed, 5 expunged, or otherwise invalidated. Heck, 512 U.S. at 486-87. 6 Here, Plaintiff contends he was convicted based on a “false RVR” and therefore, 7 his claims necessarily imply the invalidity of his disciplinary conviction. Id. at 487. 8 Because he has not further alleged his disciplinary conviction has already been reversed, 9 expunged, or otherwise invalidated, Plaintiff does not state a plausible claim for relief, 10 and his Fourteenth Amendment claims must be dismissed. Id.; see also Coley v. Duffy, 11 No. 1:13-CV-00912-BAM-PC, 2016 WL 1359799, at *6 (E.D. Cal. Apr. 5, 2016) 12 (dismissing prisoner’s § 1983 complaint alleging loss of custody credits and of being 13 falsely charged with a disciplinary violation pursuant to 28 U.S.C. § 1915(e)(2) and 14 § 1915A as barred by Heck). 15 G. Personal property claims 16 Plaintiff also claims that Defendants “stole much of his property” which he 17 discovered when he arrived at CMF. (FAC at 16.) Where a prisoner alleges he was 18 deprived of a property interest caused by the unauthorized acts of state officials, either 19 negligent or intentional, he cannot state a constitutional claim where the state provides an 20 adequate post-deprivation remedy. See Zinermon v. Burch, 494 U.S. 113, 129-32 (1990); 21 Hudson v. Palmer, 468 U.S. 517, 533 (1984) (holding that the unauthorized negligent or 22 intentional deprivation of property does not violate due process if a meaningful post- 23 deprivation remedy is available). The California Tort Claims Act (“CTCA”) provides an 24 adequate post-deprivation state remedy for the random and unauthorized taking of 25 property. Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) (“California law 26 provides an adequate post-deprivation remedy for any property deprivations.”) Thus, to 27 the extent Plaintiff challenges the unauthorized or negligent taking of his personal 28 property in contravention of a statute or regulation authorizing it, the CTCA provides him 1 with an adequate state post-deprivation remedy, and his substantive and procedural due 2 process claims challenging the loss of his property is not cognizable in a § 1983 action. 3 Plaintiff’s claims relating to his personal property are DISMISSED for failing to 4 state a claim and without leave to amend in this matter. 5 III. Conclusion and Order 6 Based on the foregoing, the Court: 7 1) DISMISSES Plaintiff’s FAC sua sponte for failing to state a claim upon 8 which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). 9 2) GRANTS Plaintiff forty-five (45) days leave from the date of this Order in 10 which to file an Amended Complaint which cures the deficiencies of pleading noted. 11 Plaintiff’s Amended Complaint must be complete by itself without reference to his 12 original pleading. Defendants not named and any claim not re-alleged in his Amended 13 Complaint will be considered waived. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, 14 Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended 15 pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 16 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an 17 amended pleading may be “considered waived if not repled.”). 18 Plaintiff’s Amended Complaint, should he elect to file one, must be captioned as 19 his “Second Amended Complaint,” contain S.D. Cal. Civil Case No. 20cv1144 JAH 20 (MSB) in its caption, and comply both with FED. R. CIV. P. 8 and with S.D. CAL. CIVLR 21 8.2.a. The Court DIRECTS the Clerk of the Court to provide Plaintiff with a blank copy 22 of its form Complaint under the Civil Rights Act, 42 U.S.C. § 1983 for Plaintiff’s use and 23 to assist him in complying with LR 8.2.a’s requirements. 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 If Plaintiff fails to file an Amended Complaint within 45 days, or if he files an 2 || Amended Complaint that still fails to allege any plausible claim for relief against any 3 || Defendant that is timely, the Court will dismiss all untimely claims without further leave 4 ||to amend pursuant to 42 U.S.C. § 1915(e)(2) and § 1915A. 5 IT IS SO ORDERED. 6 7 || Dated: September 11, 2020 8 N. JOHN A. HOUSTON 9 Ynited States District Judge 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28