Ivy v. Wingo ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOHN IVY, Case No.: 3:20-cv-01345-CAB-AHG CDCR #AG-0930, 12 ORDER: Plaintiff, 13 vs. 1) GRANTING MOTION TO 14 PROCEED IN FORMA PAUPERIS 15 [ECF No. 2] P. WINGO, Correctional Officer; 16 K. COTTRELL, Correctional Hearing Lt.; AND 17 S. ANDERSON, Chief Disciplinary Officer; M. POLLARD, Warden, 2) DISMISSING COMPLAINT FOR 18 Defendants. FAILING TO STATE A CLAIM 19 PURSUANT TO 28 U.S.C. § 1915(e)(2) AND § 1915A(b) 20 21 22 Plaintiff John Ivy, currently incarcerated at Richard J. Donovan Correctional 23 Facility (“RJD”) in San Diego, California has filed a civil rights complaint pursuant to 42 24 U.S.C. § 1983. Ivy claims several RJD officials violated his First, Eighth, and Fourteenth 25 Amendment rights after a contraband phone was discovered in his cell on June 26, 2019. 26 See Compl., ECF No. 1 at 3‒7. Ivy alleges Defendants conspired and retaliated against 27 him and violated his right to due process by employing “illegal policy procedures” during 28 the disciplinary proceedings that followed discovery of the contraband phone. Id. He 1 seeks declaratory relief, general and punitive damages according to proof, and demands a 2 jury trial. Id. at 8. 3 Ivy has not paid the filing fees required by 28 U.S.C. § 1914(a), but instead has 4 filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). 5 See ECF No. 2. 6 I. IFP Motion 7 All parties instituting any civil action, suit or proceeding in a district court of the 8 United States, except an application for writ of habeas corpus, must pay a filing fee of 9 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 10 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 11 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). However, 12 prisoners who are granted leave to proceed IFP remain obligated to pay the entire fee in 13 “increments” or “installments,” Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 14 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of 15 whether their action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. 16 Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 17 Section 1915(a)(2) also requires prisoners seeking leave to proceed IFP to submit a 18 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 19 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 20 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 21 trust account statement, the Court assesses an initial payment of 20% of (a) the average 22 monthly deposits in the account for the past six months, or (b) the average monthly 23 balance in the account for the past six months, whichever is greater, unless the prisoner 24 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 27 fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. June 1, 2016). The additional $50 administrative fee does 28 1 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having 2 custody of the prisoner then collects subsequent payments, assessed at 20% of the 3 preceding month’s income, in any month in which his account exceeds $10, and forwards 4 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 5 Bruce, 136 S. Ct. at 629. 6 In support of his IFP Motion, Ivy has submitted a copy of his CDCR Inmate 7 Statement Report as well as a Prison Certificate completed by a trust account official at 8 CEN. See ECF No. 2 at 4‒7; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 9 F.3d at 1119. These documents show he carried an average monthly balance of $251.39, 10 maintained $213.25 in average monthly deposits to his trust account for the 6-months 11 preceding the filing of this action, but due to several pre-filing sales expenditures, had an 12 available balance of only $.01 to his credit at the time of filing. See ECF No. 2 at 4, 6. 13 Therefore, the Court GRANTS Ivy’s Motion to Proceed IFP (ECF No. 2) and 14 assesses his initial partial filing fee to be $50.27 pursuant to 28 U.S.C. § 1915(b)(1). 15 However, the Court will direct the Secretary of the CDCR, or his designee, to collect this 16 initial filing fee only if sufficient funds are available in Ivy’s account at the time this 17 Order is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a 18 prisoner be prohibited from bringing a civil action or appealing a civil action or criminal 19 judgment for the reason that the prisoner has no assets and no means by which to pay the 20 initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 21 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP 22 case based solely on a “failure to pay ... due to the lack of funds available to him when 23 payment is ordered.”). The remaining balance of the $350 total fee owed in this case must 24 be collected by the agency having custody of the prisoner and forwarded to the Clerk of 25 the Court pursuant to 28 U.S.C. § 1915(b)(2). 26 / / / 27 / / / 28 / / / 1 II. Screening pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 2 A. Standard of Review 3 Because Ivy is a prisoner and is proceeding IFP, his Complaint requires a 4 preliminary screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 5 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 6 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 7 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 8 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 9 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 10 the targets of frivolous or malicious suits need not bear the expense of responding.’” 11 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford 12 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 13 “The standard for determining whether a plaintiff has failed to state a claim upon 14 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 15 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 16 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 17 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 18 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 19 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, 20 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 21 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 556 U.S. 544, 570 22 (2007)); Wilhelm, 680 F.3d at 1121. 23 “Courts must consider the complaint in its entirety,” including “documents 24 incorporated into the complaint by reference” to be part of the pleading when 25 determining whether the plaintiff has stated a claim upon which relief may be granted.2 26 27 2 The Court is not, however, required to “to wade through exhibits to determine whether 28 1 Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Schneider v. Cal. 2 Dep’t of Corrs., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998); see also Fed. R. Civ. P. 10(c) 3 (“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading 4 for all purposes.”). 5 B. Plaintiff’s Allegations 6 On June 26, 2019, Ivy claims Defendant Wingo and Correctional Officer Guzman3 7 conducted a random search of RJD Housing Unit 5, Cell 5-212, which he shared with an 8 inmate named Baker. See Compl. at 4 & Pl.’s Ex. A at 19 (“RVR Log. No. RJD- 9 6871236.”) Both Ivy and Baker submitted to clothed body searches which revealed no 10 contraband, and both were instructed to sit in the dayroom while the cell search was 11 conducted. Id. Ivy contends Wingo “claim[ed]” to have found a black LG cell phone on 12 the left side of the toilet behind a cleaning sponge. Id. Wingo secured the phone in his left 13 lower cargo pocket, maintained custody of the phone until he “took (1) photo and placed 14 it in Central Control Evidence locker #4.” Id. 15 On July 7, 2019, Ivy was served with a copy of RVR Log. No. RJD-6871236, 16 charging him with constructive possession of a cellular phone in violation of Cal. Code 17 Regs., tit. 15 § 3006(a). See Ex. A at 14. On August 6, 2019, Ivy appeared at a 18 disciplinary hearing before Defendant Cottrell, a Correctional Lieutenant, who served as 19 the Senior Hearing Officer (“SHO”). See Compl. at 5‒6; Ex. A at 14, 22. Officer Wingo, 20 the “Reporting Employee,” appeared as witness. See Compl. at 5; Ex. A at 17, Ex. B 21 (“Third Level Appeal Decision, TLR Case No. 1913514, Log No. RJD-19-05107”) at 44. 22 At the hearing, Ivy highlighted Wingo’s failure to “photograph the cell phone 23 where [he] found it,” noted the absence of a record of the cell search in the daily 24 25 26 § 1915(e) and § 1915A. Woodrow v. Cty. of Merced, No. 1:13-cv-01505-AWI, 2015 WL 27 164427, at *4 (E.D. Cal. Jan 13, 2015). 28 1 “Housing Unit Log,” and questioned Wingo’s failure to issue a cell search receipt. Id. at 2 5; Ex. A at 17‒18. Ivy pleaded not guilty, claimed the “RVR documented did not 3 happen,” and asked that several CDCR Form 22s he submitted between June 27, 2019 4 and August 6, 2019‒‒all requesting to review the “log book and cell search log” be 5 considered as evidence in his defense. Id. at 5‒6; Ex. A at 18‒19, Ex. C at 29‒39. Ivy 6 also requested an investigative employee (“IE”) and asked that an additional statement 7 “alleging misconduct against the SHO (Lt. K. Cottrell)” be included in the RVR hearing 8 notes. Id., Ex. A at 19. 9 SHO Cottrell granted Ivy’s request to include copies of his CDCR Form 22’s as 10 part to the hearing record, but denied his demand for an IE as unwarranted. Id. Cottrell 11 further rejected Ivy’s request to have Officers Castillo, Gutierrez, and Pulido4 appear 12 personally at the hearing as unnecessary in lieu of their submitted stipulations confirming 13 “there was nothing filled out in the Housing Unit Log book about cell searches conducted 14 on the date of th[e] incident.” See Ex. A at 17-19; see also Pl.’s Ex. D at 44‒45. Cottrell 15 then considered Ivy’s and Wingo’s testimony, Wingo’s written report, photo evidence of 16 the cellular phone, as well as Castillo, Gutierrez, and Pulido’s stipulations, and 17 determined that “when taken together the facts me[t] and exceed[ed] the preponderance 18 of the evidence threshold” to support a finding of guilt. See Compl. at 5‒6; Ex. A at 20, 19 22; Ex. D at 44‒45. The RVR hearing results further indicate Cottrell was able to “find 20 and produce a Daily Activity Report (DAR) for Facility A dated 6/26/19, indicating a cell 21 search for A5-212 was conducted and positive for a contraband cell phone,” but this “did 22 not weigh on [his] finding” because it was not provided to Ivy prior to the hearing. See 23 Ex. A at 19. 24 25 26 4 Ivy does not name Officers Castillo, Gutierrez, or Pulido as Defendants either. He also 27 offers no explanation as to why he requested these officers’ presence at his disciplinary hearing, and includes no factual allegations describing Castillo, Gutierrez, or Pulido’s role 28 1 As a result of Cottrell’s disciplinary findings, Ivy was assessed a 90-day credit 2 loss, assigned to “Privilege Group C” for 90 days, and denied “package privileges” for 90 3 days. Id. at 22‒23. He appealed the guilt determination via CDCR 602 Inmate/Parolee 4 Appeal Log No. RJD-19-05107, but RVR Log. No. RJD-6871236’s Disciplinary Hearing 5 Results were upheld in a Third Level Appeal Decision dated January 14, 2020. See Ex. D 6 at 44‒45. 7 Ivy now alleges Wingo and Cottrell retaliated and “conspired a plot of conspiracy” 8 against him by failing to follow “proper evidence procedures” related to the June 26, 9 2019 cell search, and denied him due process by relying on “false and misleading 10 evidence.” See Compl. at 5‒7. He further contends Defendants S. Anderson, the Chief 11 Disciplinary Officer who confirmed Cottrell’s disciplinary findings on August 8, 2019, 12 see Ex. A at 23‒24, and RJD’s Warden Pollard are also “liable for the Due Process 13 Violation” because while they were “not directly involved,” they failed to correct Wingo 14 and Cottrell’s errors via his administrative appeal “in the course of [their] supervisory 15 responsibilities.” Id. at 6, 7. 16 C. 42 U.S.C. § 1983 17 “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right 18 secured by the Constitution and laws of the United States, and (2) that the deprivation 19 was committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 20 698 F.3d 1128, 1138 (9th Cir. 2012); see also Rawson v. Recovery Innovations, Inc., No. 21 19-35520, __ F.3d __, 2020 WL 5405684, at *3 (9th Cir. Sept. 9, 2020) (“Pursuant to 22 § 1983, a defendant may be liable for violating a plaintiff’s constitutional rights only if 23 the defendant committed the alleged deprivation while acting under color of state law.”). 24 D. Retaliation & Conspiracy 25 As an initial matter, the Court finds Ivy’s broad and factually unsupported claims 26 of having been victim of conspiracy “plot” and “hidden retaliation” with respect to his 27 disciplinary conviction clearly fail to state a plausible claim for relief against any 28 Defendant. See Iqbal, 556 U.S. at 678. 1 To state a claim for conspiracy under section 1983, Ivy must allege facts sufficient 2 to show the existence of an agreement or meeting of the minds to violate his 3 constitutional rights, Avalos v. Baca, 596 F.3d 583, 592 (9th Cir. 2010); Franklin v. Fox, 4 312 F.3d 423, 441 (9th Cir. 2001), and that an “actual deprivation of his constitutional 5 rights resulted from the alleged conspiracy.” Hart v. Parks, 450 F.3d 1059, 1071 (9th Cir. 6 2006) (quotation and citation omitted). To be held liable, each participant in the 7 conspiracy need not be alleged to “know the exact details of the plan, but each participant 8 must [be alleged to] at least share the common objective of the conspiracy.” Franklin, 9 312 F.3d at 441 (citation and quotations omitted). Additionally, Ivy must allege that 10 Defendants “conspired or acted jointly in concert and that some overt act [was] done in 11 furtherance of the conspiracy.” Sykes v. State of California, 497 F.2d 197, 200 (9th Cir. 12 1974). Ivy claims broadly that he “believe[s] that officer P. Wingo and Lieutenant K. 13 Cottrell conspired a plot of conspiracy,” by subjecting him to “illegal policy procedures” 14 with respect to his disciplinary conviction. See Compl. at 5, 7. He does not, however, 15 include any “further factual enhancement” to plausibly show Wingo and Cottrell agreed 16 to deprive him of due process; nor does Ivy identify any joint and overt act in furtherance 17 of a common objective to further that goal. See Twombly, 550 U.S. at 557; Avalos, 596 18 F.3d at 592; Franklin, 312 F.3d at 441. “[M]ore than vague conclusory allegations are 19 required to state a [conspiracy] claim.” Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 20 1978). 21 Ivy’s retaliation claims fare no better. He contends Defendants’ actions were 22 retaliatory, see Compl. at 3‒4, but he provides no factual support for this legal conclusion 23 whatsoever. Id. at 4; see also Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) 24 (“Within the prison context, a viable claim of First Amendment retaliation entails five 25 basic elements: (1) An assertion that a state actor took some adverse action against an 26 inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) 27 chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not 28 reasonably advance a legitimate correctional goal.”). A pleading like Ivy’s, offering only 1 “‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action,’” 2 does not “‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 3 (quoting Twombly, 550 U.S. at 555, 570). 4 E. Fourteenth Amendment Due Process Claims 5 The gravamen of Ivy’s Complaint centers on his allegations of having been denied 6 due process with respect to the issuance of RVR Log No. No. RJD-6871236 and the 7 disciplinary proceedings that followed. See Compl. at 7. Specifically, Ivy claims Officer 8 Wingo “went against the written policy and procedures” with respect to ensuring a proper 9 “chain of custody” for the confiscated phone, and that SHO Cottrell relied on this 10 “tainted” evidence in order to deprive him of a “legal and fair” disciplinary hearing. Id. at 11 5‒6. As a result, Ivy claims he was found guilty based on an RVR that “did not happen,” 12 and suffered “administrative sanctions” including 90 days of credit loss, Privilege Group 13 C, and package privileges. Id. at 7 & Ex. A at 18‒19. 14 The Fourteenth Amendment provides that “[n]o state shall ... deprive any person of 15 life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. “The 16 requirements of procedural due process apply only to the deprivation of interests 17 encompassed by the Fourteenth Amendment’s protection of liberty and property.” Bd. of 18 Regents v. Roth, 408 U.S. 564, 569 (1972). “To state a procedural due process claim, [a 19 plaintiff] must allege ‘(1) a liberty or property interest protected by the Constitution; (2) a 20 deprivation of the interest by the government; [and] (3) lack of process.’” Wright v. 21 Riveland, 219 F.3d 905, 913 (9th Cir. 2000) (quoting Portman v. Cnty. of Santa Clara, 22 995 F.2d 898, 904 (9th Cir. 1993)). 23 A prisoner is entitled to certain due process protections when he is charged with a 24 disciplinary violation. Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003) (citing 25 Wolff v. McDonnell, 418 U.S. 539, 564-571 (1974)). “Such protections include the rights 26 to call witnesses, to present documentary evidence and to have a written statement by the 27 fact-finder as to the evidence relied upon and the reasons for the disciplinary action 28 taken.” Id. These procedural protections, however, “adhere only when the disciplinary 1 action implicates a protected liberty interest in some ‘unexpected matter’ or imposes an 2 ‘atypical and significant hardship on the inmate in relation to the ordinary incidents of 3 prison life.’” Id. (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)); Ramirez v. 4 Galaza, 334 F.3d 850, 860 (9th Cir. 2003). 5 Although the level of the hardship must be determined on a case-by-case basis, and 6 “[i]n Sandin’s wake the Courts of Appeals have not reached consistent conclusions for 7 identifying the baseline from which to measure what is atypical and significant in any 8 particular prison system,” Wilkinson v. Austin, 545 U.S. 209, 223 (2005), courts in the 9 Ninth Circuit look to: 10 1) whether the challenged condition ‘mirrored those conditions imposed upon inmates in administrative segregation and protective custody,’ and thus 11 comported with the prison’s discretionary authority; 2) the duration of the 12 condition, and the degree of restraint imposed; and 3) whether the state’s action will invariably affect the duration of the prisoner’s sentence. 13 14 Ramirez, 334 F.3d at 861 (quoting Sandin, 515 U.S. at 486-87); see also Chappell v. 15 Mandeville, 706 F.3d 1052, 1064-65 (9th Cir. 2013). Only if the prisoner alleges facts 16 sufficient to show a protected liberty interest must courts next consider “whether the 17 procedures used to deprive that liberty satisfied Due Process.” Ramirez, 334 F.3d at 860. 18 Insofar as Ivy claims Wingo’s June 26, 2019 cell search, which formed the basis of 19 the disciplinary offense charged against him via RVR Log No. RJD-6871236, simply 20 “did not happen,” see Compl., Ex. A at 19, to the extent he faults Wingo for failing to 21 follow “written policy and procedures of the chain of custody,” id. at 5,5 and to the extent 22 he challenges the sufficiency of the evidence SHO Cottrell considered before finding him 23 guilty, his allegations fail to state a plausible due process claim. Iqbal, 556 U.S. at 678. 24 25 26 5 Allegations that prison officials simply failed to follow “state departmental regulations 27 do not establish a federal constitutional violation.” Cousins v. Lockyer, 568 F.3d 1063, 1070 (9th Cir. 2009); see also Parnell v. Martinez, __ Fed. App’x __, No. 19-16393, 2020 28 1 First, “[t]he issuance of a false RVR, alone, does not state a claim under section 2 1983.” Murschel v. Paramo, 2018 WL 539159, at *5 (S.D. Cal. 2018) (citing Dawson v. 3 Beard, 2016 WL 1137029, at *5-6 (E.D. Cal. 2016)). Instead, claims of arbitrary action 4 by prison officials must grounded in “‘the procedural due process requirements as set 5 forth in Wolff v. McDonnell.’” Murschel, 2018 WL 539159, at *5 (citing Ellis v. Foulk, 6 2014 WL 4676530, at *2 (E.D. Cal. 2014) (quoting Hanrahan v. Lane, 747 F.2d 1137, 7 1140 (7th Cir. 1984))). “[T]here is no due process right to be free from false disciplinary 8 charges,” Solomon v. Meyer, 2014 WL 294576, at *2 (N.D. Cal. 2014), because “[t]he 9 Constitution demands due process, not error-free decision-making.” Chavira v. Rankin, 10 2012 WL 5914913, at *1 (N.D. Cal. 2012); see also Johnson v. Felker, 2013 WL 11 6243280, at *6 (E.D. Cal. 2013) (“Prisoners have no constitutionally guaranteed right to 12 be free from false accusations of misconduct, so the mere falsification of a [rules 13 violation] report does not give rise to a claim under section 1983.”) (citing Sprouse v. 14 Babcock, 870 F.2d 450, 452 (8th Cir. 1989) and Freeman v. Rideout, 808 F.2d 949, 951- 15 53 (2d Cir. 1986)). 16 Second, Ivy’s due process claims require sua sponte dismissal pursuant to 28 17 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1) because he fails to allege facts 18 sufficient to show that the deprivations he suffered as a result of his disciplinary 19 conviction, i.e., 90 days of lost good time credit, privilege group, and package privileges, 20 see Compl. at 7, Ex. A at 20‒21, imposed the type of “atypical and significant hardships” 21 required by Sandin to invoke liberty interests entitled to Wolff’s procedural safeguards. 22 Sandin, 515 U.S. at 484; see e.g., Salinas v. Montgomery, No. 3:19-cv-0744-AJB-RBB, 23 2019 WL 2191349, at *5 (S.D. Cal. May 21, 2019) (finding allegations that inmate was 24 “assessed a good-time credit loss of 90 days” insufficient to show atypical and significant 25 hardship); Cal. Code Regs., tit. 15 § 3044(f)(2) (explaining “Privilege Group C” 26 “privileges and non-privileges”); Sanchez v. Miller, 2016 WL 536890, at *5 (S.D. Cal. 27 2016) (concluding that time-limited “C-status deprivations” did not constitute hardship 28 that is “atypical and significant ‘in relation to the ordinary incidents of prison life.’”) 1 (quoting Sandin, 515 U.S. at 484), report and recommendation adopted, 2016 WL 2 524438 (S.D. Cal. 2016); Randle v. Melendrez, 2017 WL 1197864, at *4 (C.D. Cal. 3 2017) (finding “four months in administrative segregation as a result of the false RVR,” 4 during which plaintiff was deprived of contact visits, “packages, canteen, unrestricted 5 yard, phone calls and personal property” insufficient to implicate a protected liberty 6 interest under Sandin), report and recommendation adopted, 2017 WL 1199719 (C.D. 7 Cal. 2017); Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987) (“[A] prisoner 8 has no constitutional right to a particular classification status”); Wyatt v. Swearingen, 9 2010 WL 135322, at *8-9 (N.D. Cal. 2010) (no liberty interest in prisoner’s year-long C- 10 status placement); Washington v. Cal. Dep’t of Corrs. & Rehab., 2010 WL 729935, at *1 11 (E.D. Cal. 2010) (no liberty interest in delayed release from C-status); see also Atherley 12 v. Kernan, No. 3:19-CV-02355-LAB-KSC, 2020 WL 2079374, at *11 (S.D. Cal. Apr. 29, 13 2020) (dismissing prisoner’s claims of having been placed in “Privilege Group C” and 14 90-day loss of canteen, phone, day room, and package privileges sua sponte for failing to 15 state a due process claim pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)). 16 Third, even if Ivy had alleged facts sufficient to plausibly show he suffered an 17 “atypical or significant hardship” with respect to the charges filed against him via RVR 18 Log No. RJD-6871236, the August 6, 2019 disciplinary hearing results, attached as 19 Exhibit A to Ivy’s Complaint, reveal SHO Cottrell’s findings were nevertheless 20 supported by “some evidence.” See Compl., Ex. A at 14‒24; Superintendent v. Hill, 472 21 U.S. 445, 455 (1985) (“[T]he requirements of due process are satisfied if some evidence 22 supports the [disciplinary] decision.... ”); Parnell v. Martinez, No. 19-16393, 2020 WL 23 5544081, at *1 (9th Cir. Sept. 16, 2020) (same). 24 F. Personal Liability ‒ Defendants Anderson & Pollard 25 Ivy also claims Chief Disciplinary Officer S. Anderson and Warden M. Pollard are 26 “liable for the due process violation by reason of [their] failure to correct” Wingo and 27 Cottrell’s errors via CDCR 602 Inmate/Parolee Appeal Log No. RJD-19-05107. See 28 Compl. at 6 & Ex. D at 44‒45. Ivy contends that while neither of these Defendants 1 “commit[ted] the due process violation” themselves, each “became responsible” as 2 supervisors when they “failed to correct it.” Id. 3 But simply “‘[r]uling against a prisoner on an administrative complaint does not 4 cause or contribute to the violation.’” Ellington v. Clark, 2010 WL 3001427, at *2 (E.D. 5 Cal. Jul. 29, 2010) (quoting George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007)). And a 6 prison official’s allegedly improper processing of grievances or appeals, without more, 7 does not provide an independent basis for section 1983 liability. See Ramirez, 334 F.3d at 8 860 (prisoners do not have a “separate constitutional entitlement to a specific prison 9 grievance procedure.”) (citation omitted); Davis v. Penzone, 2017 WL 8792541, at *5 (D. 10 Ariz. July 25, 2017) (prison administrators and other supervisors are not per se liable for 11 an alleged violation of a prisoner’s federal constitutional rights simply by failing to grant 12 his “grievances or grievance appeals.”). Thus, because Ivy alleges Defendants Anderson 13 and Pollard’s only involvement was their failure to intervene or correct Wingo and 14 Cottrell’s alleged due process violations, he fails to state a claim against them as well. 15 See 28 U.S.C. § 1915(e)(2); § 1915A(b); Iqbal, 556 U.S. at 677 (“Absent vicarious 16 liability, each Government official, his or her title notwithstanding, is only liable for his 17 or her own misconduct.”); Moreno v. Ryan, 2017 WL 2214703, at *3 (D. Ariz. May 19, 18 2017) (failure to intervene on the prisoner’s behalf to remedy the allegedly 19 unconstitutional underlying behavior does not by itself amount to an independent or 20 freestanding constitutional violation for purposes of § 1983); Morgan v. Borders, 2018 21 WL 2213455, at *6 (C.D. Cal. May 14, 2018) (dismissing allegations that inmate appeals 22 officials “allowed transgender discrimination to continue ... unabated” when they denied 23 plaintiff’s grievance alleging discrimination as insufficient to state a viable § 1983 24 claim). 25 G. Eighth Amendment – Cruel and Unusual Punishment 26 Ivy also invokes the Eighth Amendment with respect to his disciplinary hearing 27 and punishment. See Compl. at 3, 7. “After incarceration, only the unnecessary and 28 wanton infliction of pain ... constitutes cruel and unusual punishment forbidden by the 1 Eighth Amendment.” Watison, 668 F.3d at 1112 (citing Whitley v. Albers, 475 U.S. 312, 2 319 (1986)). “[A]mong unnecessary and wanton inflictions of pain are those that are 3 totally without penological justification.” Hope v. Pelzer, 536 U.S. 730, 737 (2002) 4 (internal quotations and citations omitted). 5 To state a cruel and unusual punishment claim, Ivy must allege facts sufficient to 6 satisfy two requirements. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Iqbal, 556 U.S. 7 at 678. First, he must allege his deprivation was “objectively [and] ‘sufficiently serious.’” 8 Farmer, 511 U.S. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)); see also 9 Peralta v. Dillard, 744 F.3d 1076, 1091 (9th Cir. 2014). Prison conditions are not 10 objectively serious unless they amount to “unquestioned and serious deprivations of basic 11 human needs,” or of the “minimal civilized measure of life’s necessities.” Rhodes v. 12 Chapman, 452 U.S. 337, 347 (1981); Wilson, 501 U.S. at 298-300; Grenning v. Miller- 13 Stout, 739 F.3d 1235, 1238 (9th Cir. 2014) (citation omitted). 14 Second, Ivy’s Complaint “must contain sufficient factual matter” to demonstrate 15 that each Defendant acted with a sufficiently culpable state of mind, that of “deliberate 16 indifference.” Iqbal, 556 U.S. at 678; Wilson, 501 U.S. at 303; Peralta, 744 F.3d at 1091. 17 A prison official acts with deliberate indifference if he “knows of and disregards an 18 excessive risk to the prisoner’s health and safety.” Farmer, 511 U.S. at 837. In other 19 words, the prison official “must both be aware of facts from which the inference could be 20 drawn that a substantial risk of serious harm exists [to the prisoner], and [the prison 21 official] must also draw the inference.” Id. 22 Ivy invokes the Eighth Amendment’s proscription of cruel and unusual punishment 23 with respect to RVR Log No. RJD-6871236 and the disciplinary conviction imposed as a 24 result of his having been found guilty of possessing the contraband cell phone Officer 25 Wingo claimed to have discovered in his cell. See Compl., ECF No. 1 at 7-8. But he does 26 not claim that the temporary limitations placed on his group and package privileges as a 27 result of this disciplinary conviction deprived him of any “basic human need,” and he 28 / / / 1 does not and cannot plausibly allege that the loss of behavioral custody credits deprived 2 him of “life’s necessities.” See Rhodes, 452 U.S. at 347. 3 Thus, while Ivy describes Defendants’ actions as “cruel and unusual punishment,” 4 Compl. at 7, this amounts to a mere “[t]hreadbare recital[] of the elements of a[n] [Eighth 5 Amendment] cause of action, supported by merely conclusory statements, [and] do[es] 6 not suffice.” Iqbal, 556 U.S. at 678; see also Cruz-Tercero v. Banks, 2012 WL 3155552, 7 at *6 (C.D. Cal. May 29, 2012), report and recommendation adopted, 2012 WL 3155528 8 (C.D. Cal. Aug. 2, 2012); Cole v. Sisto, 2010 WL 2303257, at *2 (E.D. Cal. June 7, 2010) 9 (“To the extent that [plaintiff] argues that the particular forms of discipline imposed on 10 him ... (the forfeiture of time credits, the adding of points to his classification score, or 11 the temporary loss of certain yard and canteen privileges) was so harsh as to be cruel and 12 unusual, such a claim is plainly frivolous.”); Galindo v. Cockrell, 2001 WL 1057982, at 13 *4 (N.D. Tex., Aug. 31, 2001) (“Galindo’s claim that the revocation of his earlier earned 14 credits constitutes cruel and unusual punishment in violation of the Eighth Amendment is 15 frivolous and requires no discussion.”). 16 H. Heck Bar 17 Finally, the Court cautions Ivy that even if he can allege additional facts sufficient 18 to plausibly show Defendants Wingo and Cottrell violated his due process rights with 19 respect to his RVR and disciplinary conviction, his claims, as they are currently pleaded, 20 suggest he faces yet another procedural hurdle. 21 “Federal law opens two main avenues to relief on complaints related to 22 imprisonment: a petition for writ of habeas corpus, 28 U.S.C. § 2254, and a complaint 23 under ... 42 U.S.C. § 1983.” Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam). 24 “Challenges to the validity of any confinement or to particulars affecting its duration are 25 the province of habeas corpus; requests for relief turning on circumstances of 26 confinement may be presented in a § 1983 action.” Id. (internal citation omitted). A 27 prisoner’s claims are within the core of habeas corpus if they challenge the fact or 28 / / / 1 duration of his conviction or sentence. Nettles v. Grounds, 830 F.3d 922, 934 (9th Cir. 2 2016) (en banc); Ramirez, 334 F.3d at 858. 3 In Heck v. Humphrey, the United States Supreme Court held that a section 1983 4 claim cannot proceed when “a judgment in favor of the plaintiff would necessarily imply 5 the invalidity of his conviction or sentence.” Heck, 512 U.S. at 486-87. Accordingly, “a 6 state prisoner’s [section] 1983 action is barred (absent prior invalidation)—no matter the 7 relief sought (damages or equitable relief), no matter the target of the prisoner’s suit 8 (state conduct leading to conviction or internal prison proceedings)—if success in that 9 action would necessarily demonstrate the invalidity of confinement or its duration.” 10 Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005). Heck requires the plaintiff in a § 1983 11 action “first … to prove that his conviction had been invalidated in some way.” 12 McDonough v. Smith, 139 S. Ct. 2149, 2157 (2019) (citing Heck, 512 U.S. at 486). “This 13 favorable-termination requirement, the Court explained, applies whenever ‘a judgment in 14 favor of the plaintiff would necessarily imply’ that his prior conviction or sentence was 15 invalid.” Id. (quoting Heck, 512 U.S. at 487). 16 Heck’s bar applies in the prison disciplinary context if the “defect complained of 17 by [Plaintiff] would, if established, necessarily imply the invalidity of the deprivation of 18 [his] good-time credits[,]” Edwards v. Balisok, 520 U.S. 641, 646 (1997); Nonnette v. 19 Small, 316 F.3d 872, 875 (9th Cir. 2002), and if the restoration of those credits 20 “necessarily” would “affect the duration of time to be served.” Muhammed, 540 U.S. at 21 754; see also Nettles, 830 F.3d at 929 n.4 (“Heck applies only to administrative 22 determinations that ‘necessarily’ have an effect on ‘the duration of time to be served.’ ” 23 (citations omitted)); Ramirez, 334 F.3d at 856 (“[T]he applicability of [Heck’s] favorable 24 termination rule turns solely on whether a successful § 1983 action would necessarily 25 render invalid a conviction, sentence, or administrative sanction that affected the length 26 of the prisoner’s confinement.”). 27 Here, a judgment in Ivy’s favor would necessarily imply the invalidity of his 28 disciplinary conviction and his subsequent credit loss to the extent he contends the RVR 1 “did not happen,” see Compl. Ex. A at 18, and claims Officer Wingo and SHO Cottrell 2 conspired to charge and find him guilty based on “tainted evidence,” and intentionally 3 “misleading” testimony that “never documented any legal cell search.” Id. at 6, 7. See 4 Edwards, 520 U.S. at 648 (finding prisoner’s claims for declaratory relief and money 5 damages “based on allegations of deceit and bias on the part of the decisionmaker … 6 necessarily imply the invalidity of the punishment imposed, [and are] not cognizable 7 under § 1983.”). “The due process requirements for a prison disciplinary hearing are in 8 many respects less demanding than those for criminal prosecution, but they are not so lax 9 as to let stand the decision of a biased hearing officer who dishonestly suppresses 10 evidence of innocence.” Id. at 647; see also Luster v. Amezcua, 2019 WL 1442992, at *7- 11 8 (E.D. Cal. Apr. 1, 2019) (finding prisoner’s § 1983 claims barred by Heck to the extent 12 they were based on allegations that prison officials “made a false report against her.”). 13 Therefore, should Ivy chose to proceed by amending his complaint, he must not 14 only address the Fourteenth Amendment pleading deficiencies identified above, but also 15 allege that the disciplinary conviction which serves as the basis of this § 1983 suit has 16 already been “reversed on direct appeal, expunged by executive order, declared invalid 17 by a state tribunal authorized to make such determination, or called into question by a 18 federal court’s issuance of a writ of habeas corpus.” Heck, 512 U.S. at 487. 19 III. Conclusion 20 Good cause appearing, the Court: 21 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) 22 (ECF No. 2). 23 2. ORDERS the Secretary of the CDCR, or his designee, to collect from 24 Plaintiff’s trust account the $50.27 initial filing fee assessed, if those funds are available 25 at the time this Order is executed, and forward whatever balance remains of the full $350 26 owed in monthly payments in an amount equal to twenty percent (20%) of the preceding 27 month’s income to the Clerk of the Court each time the amount in Plaintiff’s account 28 exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE 1 || CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS 2 || ACTION. 3 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph 4 || Diaz, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001. 5 4. DISMISSES Plaintiff's Complaint for failing to state a claim pursuant to 28 6 ||U.S.C. § 1915(e)(2) and § 1915A(b); and 7 5. GRANTS Plaintiff 45 days leave from the date of this Order in which to file 8 ||an Amended Complaint which cures all the deficiencies of pleading noted, if he can. 9 || Plaintiff's Amended Complaint must be complete in itself without reference to his 10 original pleading. Defendants not named and any claims not re-alleged in the Amended 11 |}Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. 12 ||v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended 13 || pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 14 || 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an 15 ||amended pleading may be “considered waived if not repled.’’). 16 If Plaintiff fails to file an Amended Complaint within 45 days, the Court will enter 17 final Order dismissing this civil action based both on Plaintiffs failure to state a claim 18 upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), 19 his failure to prosecute in compliance with a court order requiring amendment. See 20 || Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take 21 advantage of the opportunity to fix his complaint, a district court may convert the 22 || dismissal of the complaint into dismissal of the entire action.’’). 23 IT IS SO ORDERED. 24 Dated: September 24, 2020 € Z 25 Hon. Cathy Ann Bencivengo 26 United States District Judge 27 28 18 oo