□ DISTRICT COURT OF GUAM 2 3 MAY 18 2005 4 MARY L.M. MORAN CLER COURT 5 6 7 DISTRICT COURT OF GUAM 3 TERRITORY OF GUAM 9 10 VINCENT PALOMO, Civil Case No. 04-00013 Plaintiff,
VS. 13 ORDER FRANK ISHIZAKI, individually and as 14 | Director of Corrections; and Captain JESSE TUPAZ, individually and as 15 } Acting Superintendent 16 Defendants. 17 is This matter comes before the Court on Defendants’ Motion to Dismiss (Docket No. 12). 19 After considering the moving and opposing papers and all relevant law the court makes the following findings: 0 STANDARD OF REVIEW 1 The Ninth Circuit has reviewed the standard for a motion to dismiss for failure to state a
5 claim upon which relief can be granted: 3 Sho male should not be dismissed under Fed.R.Civ. Pro. 24 12(b)(6) “unless it appears beyond a doubt that the plainuft can prove no set of facts in support of his claim which would entitle him 25 to relief.” A complaint may be dismissed as a matter of law for two reasons: (1) lack of a cognizable legal theory or (2) insufficient facts 26 under a cognizable legal theory. 27 || Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9* Cir. 1984). “Dismissal “is only 28 || appropriate if the complaint, so viewed, presents no set of facts justifying recovery.” Although
1 || “great specificity is ordinarily not required,” the plaintiff must nevertheless “set forth ‘factual 2 || allegations, either direct or inferential, respecting each material element necessary to sustain 3 recovery under some actionable legal theory.’” Shabazz v. Cole, 69 F. Supp. 2d 177, 185 (D.Mass. 4 || 1999). (citations omitted}. “Conclusory allegations of law and unwarranted inferences are 5 || insufficient to defeat a motion to dismiss.” Ove v. Gwinn, 264 F.3rd 817, 821 (9" Cir. 2001). 6 With respect to a pro se litigant’s rights to amend his complaint, the Ninth Circuit has held 7 || that “unless it is absolutely clear that no amendment can cure the defect, a pro se litigant is entitled 8 || to notice of the complaint’s deficiencies and an opportunity to amend prior to dismissal of the 9 } action.” Lucas v. Dep’t of Corrections, 66 F.2d 1050, 1055 (9" Cir. 1995) (per curiam); see also 10 |] Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9" Cir. 200)(en banc). 11 BACKGROUND 12 Plaintiff, Vincent Palomo (“plaintiff”), is a prisoner currently incarcerated at the 13 Department of Corrections (“DOC”) in Mangilao, Guam.' As a prisoner, plaintiff was subject to 14 | disciplinary action as a result of misconduct involving violations for threatening serious bodily 15 || harm to a corrections officer, insolence towards corrections staff and using obscene or profane 16 || language (Compl. at { 6). 17 Plaintiff later appeared before the Disciplinary Hearing Board (“Board”), to answer for his 18 || actions. Plaintiff was afforded the opportunity to cross-examine the witnesses and to call his own, 19 | ifhe so desired. Plaintiff waived his rights to both a hearing and an appeal. He entered a plea of 20 || guilty to the charges. As a consequence, plaintiff was ordered to serve a total of ninety (90) days 21 || in Disciplinary Segregation. (Compl. at Exhibit A). Ata later date, a meeting of the Adjustment 22 | and Classification Committee (“ACC”) was conducted in the presence of the plaintiff. It was 23 || recommended that plaintiff be reclassified from a medium custody classification level 3 to a 24 | maximum level 3. Captain Jesse Tupaz’ followed the recommendation of the ACC and approved 25 || the reclassification of plaintiff. A review of the matter was to follow in three weeks. (Compl. at 26 || Exhibit C). Plaintiff was placed back in the general population, maximum housing unit. 27 8 1 paint i serving tence Life plus 135 years without the possibility for parole pursuant to convictions for 6 counts of Aggravated Murder, 2 counts of Robbery, Burglary, and 3 counts of Possession and Use of a Deadly Weapon in the Commission of a Felony, in Guam Superior Court, file number CF 170-90. 2 During the time frame in question Tupaz was serving as the Acting Prison Security Administrator (“P.8.A.”) of D.O.C.
l Thereafter, the ACC held the three week review hearing which was attended by the 2 || plaintiff The ACC recommended that plaintiff's classification be upgraded to medium level 1. 3 || Tupaz reviewed the recommendations of the ACC and “disapproved” reclassification. Tupaz 4 || decided that plaintiffs classification was to remain at maximum level 3. (Compl. at Exhibit D). 5 Plaintiff filed an appeal directly to Frank Ishizaki (“Ishizaki”) within the prescribed time 6 || frame, but alleges Ishizaki did not respond in a timely fashion, (Compl. at ff 36,37).’ Plaintiff filed 7 || three subsequent requests concerning his appeal directly with Ishizaki. Ishizaki responded to all 8 || three requests, but not to plaintiff's satisfaction. 9 On March 17, 2004, the plaintiff filed a complaint against defendants Ishizaki, and Tupaz 10 jj (collectively “defendants”) in their respective individual and official capacities.* On June 3, 2004, 11 || defendants filed the present motion to dismiss. Plaintiff filed an opposition on June 16, 2004, and 12 || □ subsequent Motion to Vacate Scheduling Conference on June 23, 2004.° 13 EQUAL PROTECTION ANALYSIS 14 The Equal Protection clause of the Fourteenth Amendment provides that no state shall 15 |] “'deny to any person within its jurisdiction the equal protection of the laws,' which is essentially 16] 17 * Ishizaki, at the time of the plaintiff's filing, served as Director of DOC 18 * pursuant to 42 U.S.C. § 1983 the plaintiff alleged the following causes of action: 19 (1) that defendant Tupaz denied plaintiffs constitutional right to due process of law; 20 (2) that defendant Tupaz denied plaintiff's constitutional right to due process of law; (3) that defendant Tupaz violated Executive Order 97-05 § 4.3; 2 (4) that defendant Ishizaki denied plaintiff's constitutional right to due process of law; (5) that defendant Ishizaki violated General Order 97-06, 23 (6) that defendant Ishizaki denied plaintiff's constitutional right to due process of law, 24 (7) that defendant Ishizaki denied plaintiff's constitutional right to due process of law; 25 (8) that defendant Ishizaki violated Executive Order 97-05 § 4.3; 26 (9) that defendant Tupaz denied plaintiff's constitutional right to equal protection of law 7 (10) that defendant Tupaz violated Executive Order 94-19 § 3.2(a); 38 (11) that defendants Tupaz and Ishizaki denied plaintiff's constitutional right to due process of law; Plaintiff prays for injunctive and declaratory relief, and an award of compensatory and punitive damages caused by the defendants’ action > Since the date set by the court in its scheduling notice has passed and the motion to dismiss is dispositive as to the case of the plaintiff, the Motion to Vacate Scheduling Conference is moot and will not be considered further.
1 || adirection that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne 2 \ Living Ctr., Inc., 473 U.S. 432, 440, 105 8. Ct. 3249 (1985). A class of one plaintiff must allege 3 || there is no rational basis for the difference in treatment. The plaintiff must prove that he has 4 || suffered intentional, irrational, and arbitrary discrimination. Village of Willowbrook v. Olech, 528 5 U.S. 562, 564-5, 120 8.Ct. 1073 (2000).
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□ DISTRICT COURT OF GUAM 2 3 MAY 18 2005 4 MARY L.M. MORAN CLER COURT 5 6 7 DISTRICT COURT OF GUAM 3 TERRITORY OF GUAM 9 10 VINCENT PALOMO, Civil Case No. 04-00013 Plaintiff,
VS. 13 ORDER FRANK ISHIZAKI, individually and as 14 | Director of Corrections; and Captain JESSE TUPAZ, individually and as 15 } Acting Superintendent 16 Defendants. 17 is This matter comes before the Court on Defendants’ Motion to Dismiss (Docket No. 12). 19 After considering the moving and opposing papers and all relevant law the court makes the following findings: 0 STANDARD OF REVIEW 1 The Ninth Circuit has reviewed the standard for a motion to dismiss for failure to state a
5 claim upon which relief can be granted: 3 Sho male should not be dismissed under Fed.R.Civ. Pro. 24 12(b)(6) “unless it appears beyond a doubt that the plainuft can prove no set of facts in support of his claim which would entitle him 25 to relief.” A complaint may be dismissed as a matter of law for two reasons: (1) lack of a cognizable legal theory or (2) insufficient facts 26 under a cognizable legal theory. 27 || Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9* Cir. 1984). “Dismissal “is only 28 || appropriate if the complaint, so viewed, presents no set of facts justifying recovery.” Although
1 || “great specificity is ordinarily not required,” the plaintiff must nevertheless “set forth ‘factual 2 || allegations, either direct or inferential, respecting each material element necessary to sustain 3 recovery under some actionable legal theory.’” Shabazz v. Cole, 69 F. Supp. 2d 177, 185 (D.Mass. 4 || 1999). (citations omitted}. “Conclusory allegations of law and unwarranted inferences are 5 || insufficient to defeat a motion to dismiss.” Ove v. Gwinn, 264 F.3rd 817, 821 (9" Cir. 2001). 6 With respect to a pro se litigant’s rights to amend his complaint, the Ninth Circuit has held 7 || that “unless it is absolutely clear that no amendment can cure the defect, a pro se litigant is entitled 8 || to notice of the complaint’s deficiencies and an opportunity to amend prior to dismissal of the 9 } action.” Lucas v. Dep’t of Corrections, 66 F.2d 1050, 1055 (9" Cir. 1995) (per curiam); see also 10 |] Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9" Cir. 200)(en banc). 11 BACKGROUND 12 Plaintiff, Vincent Palomo (“plaintiff”), is a prisoner currently incarcerated at the 13 Department of Corrections (“DOC”) in Mangilao, Guam.' As a prisoner, plaintiff was subject to 14 | disciplinary action as a result of misconduct involving violations for threatening serious bodily 15 || harm to a corrections officer, insolence towards corrections staff and using obscene or profane 16 || language (Compl. at { 6). 17 Plaintiff later appeared before the Disciplinary Hearing Board (“Board”), to answer for his 18 || actions. Plaintiff was afforded the opportunity to cross-examine the witnesses and to call his own, 19 | ifhe so desired. Plaintiff waived his rights to both a hearing and an appeal. He entered a plea of 20 || guilty to the charges. As a consequence, plaintiff was ordered to serve a total of ninety (90) days 21 || in Disciplinary Segregation. (Compl. at Exhibit A). Ata later date, a meeting of the Adjustment 22 | and Classification Committee (“ACC”) was conducted in the presence of the plaintiff. It was 23 || recommended that plaintiff be reclassified from a medium custody classification level 3 to a 24 | maximum level 3. Captain Jesse Tupaz’ followed the recommendation of the ACC and approved 25 || the reclassification of plaintiff. A review of the matter was to follow in three weeks. (Compl. at 26 || Exhibit C). Plaintiff was placed back in the general population, maximum housing unit. 27 8 1 paint i serving tence Life plus 135 years without the possibility for parole pursuant to convictions for 6 counts of Aggravated Murder, 2 counts of Robbery, Burglary, and 3 counts of Possession and Use of a Deadly Weapon in the Commission of a Felony, in Guam Superior Court, file number CF 170-90. 2 During the time frame in question Tupaz was serving as the Acting Prison Security Administrator (“P.8.A.”) of D.O.C.
l Thereafter, the ACC held the three week review hearing which was attended by the 2 || plaintiff The ACC recommended that plaintiff's classification be upgraded to medium level 1. 3 || Tupaz reviewed the recommendations of the ACC and “disapproved” reclassification. Tupaz 4 || decided that plaintiffs classification was to remain at maximum level 3. (Compl. at Exhibit D). 5 Plaintiff filed an appeal directly to Frank Ishizaki (“Ishizaki”) within the prescribed time 6 || frame, but alleges Ishizaki did not respond in a timely fashion, (Compl. at ff 36,37).’ Plaintiff filed 7 || three subsequent requests concerning his appeal directly with Ishizaki. Ishizaki responded to all 8 || three requests, but not to plaintiff's satisfaction. 9 On March 17, 2004, the plaintiff filed a complaint against defendants Ishizaki, and Tupaz 10 jj (collectively “defendants”) in their respective individual and official capacities.* On June 3, 2004, 11 || defendants filed the present motion to dismiss. Plaintiff filed an opposition on June 16, 2004, and 12 || □ subsequent Motion to Vacate Scheduling Conference on June 23, 2004.° 13 EQUAL PROTECTION ANALYSIS 14 The Equal Protection clause of the Fourteenth Amendment provides that no state shall 15 |] “'deny to any person within its jurisdiction the equal protection of the laws,' which is essentially 16] 17 * Ishizaki, at the time of the plaintiff's filing, served as Director of DOC 18 * pursuant to 42 U.S.C. § 1983 the plaintiff alleged the following causes of action: 19 (1) that defendant Tupaz denied plaintiffs constitutional right to due process of law; 20 (2) that defendant Tupaz denied plaintiff's constitutional right to due process of law; (3) that defendant Tupaz violated Executive Order 97-05 § 4.3; 2 (4) that defendant Ishizaki denied plaintiff's constitutional right to due process of law; (5) that defendant Ishizaki violated General Order 97-06, 23 (6) that defendant Ishizaki denied plaintiff's constitutional right to due process of law, 24 (7) that defendant Ishizaki denied plaintiff's constitutional right to due process of law; 25 (8) that defendant Ishizaki violated Executive Order 97-05 § 4.3; 26 (9) that defendant Tupaz denied plaintiff's constitutional right to equal protection of law 7 (10) that defendant Tupaz violated Executive Order 94-19 § 3.2(a); 38 (11) that defendants Tupaz and Ishizaki denied plaintiff's constitutional right to due process of law; Plaintiff prays for injunctive and declaratory relief, and an award of compensatory and punitive damages caused by the defendants’ action > Since the date set by the court in its scheduling notice has passed and the motion to dismiss is dispositive as to the case of the plaintiff, the Motion to Vacate Scheduling Conference is moot and will not be considered further.
1 || adirection that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne 2 \ Living Ctr., Inc., 473 U.S. 432, 440, 105 8. Ct. 3249 (1985). A class of one plaintiff must allege 3 || there is no rational basis for the difference in treatment. The plaintiff must prove that he has 4 || suffered intentional, irrational, and arbitrary discrimination. Village of Willowbrook v. Olech, 528 5 U.S. 562, 564-5, 120 8.Ct. 1073 (2000). This type of claim is analyzed under a rational basis 6 || standard and will not be sustained if there is any set of facts that may be reasonably conceived to 7 | justify defendant’s acts. AfcGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105 (1961). 8 || Further, to establish a violation of the Equal Protection Clause, the prisoner must present evidence 9 || of discriminatory intent. See, Washington v. Davis, 426 U.S. 229, 239-40 (1976); Freeman v. 10 || Arpaio, 125 F.3d 732, 737 (9" Cir. 1997). 11 Plaintiff has failed to state any facts as to how he was treated differently from other 12 }| similarly situated inmates. On the contrary, he admits that with respect to forensic programming 13 || it is not available for maximum level 3 inmates. (Compl. at { 14). 14 With regard to his claims concerning reclassification, plaintiff has cited the case of only one 15 || other inmate, Daniel Turner® (“Turner”) as evidence of discrimination. Plaintiff's comparison fails, 16 || in that he and Turner are not similarly situated. The only thing that they have in common is the fact 17 || that they are both subject to lifetime incarceration without the possibility of parole. Turner was 18 || disciplined for Interference with Staff, Insolence to Staff, Refusal of a Direct Order, Failure to 19 || Perform Assigned Work and Use of Abusive/Profane Language’ whereas plaintiff actually was 20 || found guilty of Threatening Serious Bodily Harm to a Staff member in addition to other violations. 21 || Turner received one hundred thirty (130) days disciplinary segregation and was ultimately 22 reclassified from medium level 3 to medium level 1. (Compl. at Exhibit M). Since the fact 23 || scenarios that gave rise to the disciplinary actions of Turner and plaintiff are quite different, it is 24 |) neither surprising nor unreasonable that the subsequent classifications also differ. 25 26 a7 5 ‘Turner is serving a sentence of Life plus 25 years without the possibility for parole pursuant to convictions for 5 counts of Aggravated 3 || Murder, Robbery, Burglary, and 2 counts of Possession and Use of a Deadly Weapon in the Commission of a Felony, in Guam Superior Court in file numbers CF 145-89 and CF 71-90 7 Facts surrounding Tumer’s Discipline indicate that on May 7, 2003 Turner was told to clean out his locker after having been Pr os tnstucted te olean hi looker third time et which time Turner pointed his fingers at sta and responded “[Expetive] You, you [Expletive] head.” (Compl. at Exhibit N)
1 Secondly, there are several rational bases for the classification of plaintiff, some of which 2 1 were cited by Tupaz in his disapproval order. These include the “severity of the offense,” 3 || plaintiff's lack of ability to conform his behavior despite prior forensic classes, and that a 4 || promotion in classification was deemed “not conducive to safety, security and good institutional 5 ll order.” All of these justifications are reasonable and rational bases in which to deny 6 || reclassification of the plaintiff. 7 Likewise, plaintiff has failed to allege any facts to provide any evidence of discriminatory 8 || intent. Accordingly, the defendants’ motion to dismiss as to the alleged Equal Protection violations 9 || by each of the defendants is GRANTED and DISMISSED WITH PREJUDICE. 10 DUE PROCESS ANALYSIS 11 The Due Process clause of the constitution protects individuals from government actions 12 || that deprive them of life, liberty or property without due process of law. The Due Process clause 13 || provides prisoners two separate sources of protection against unconstitutional state disciplinary 14 || actions. First, a prisoner may challenge a disciplinary action which deprives or restrains a state- 15 || created liberty interest in some "unexpected manner." Sandin v. Conner, 515 U.S. 472, 483-84, 115 16 || S.Ct. 2293, 132 L.Ed.2d 418 (1995). Second, a prisoner may challenge a state action which does 17 || not restrain a protected liberty interest, but which nonetheless imposes some “atypical and 18 || significant hardship on the inmate in relation to the ordinary incidents of prison life." /d. 19 Plaintiffs claim of a loss of liberty interest based on lack of forensic programming in 20 || maximum security and the failure of Tupaz to follow the recommendation of the ACC can not be 21 |l sustained. He has not demonstrated that Tupaz had any duty to approve plaintiff's promotion or 22 || that there was a duty on the part of either defendant to maintain rehabilitative programs for 23 || maximum security inmates. More importantly, prisoner classifications and eligibility for 24 || rehabilitative programs are not entitlements protected by due process. Moody v. Daggett, 25 || 78, 88 n. 9, 97 S.Ct. 274 (1976) Further, plaintiff's claimed loss of a liberty interest in the failure 96 || of the defendant Ishizaki to provide a timely answer, if any, to his appeal does not satisfy the 27 || standards as set forth in Sandin, because inmates lack a separate constitutional entitlement to a 28 || specific prison grievance procedure. Mann v. Adams, 855 F.2d 639, 640 (9th Cir.1988).
1 | The plaintiff's claims lack the necessary constitutional foundation. His confinement is not 2 | extended im an unexpected manner nor is there an imposition of any atypical or significant hardship 3 ff on the plaintiff. Accordingly, the defendants’ motian tn dismiss as to the alleged Due Process 4 | violations by each of the defendants is GRANTED and DISMISSED WITH PREJUDICE. > | 6 | The Court finds that even assuming arguendo, that violations of the corresponding 7 Execulive avd General Orders pursuant to plaintiffs’ third, fifth, eighth and tenth® causes of action 8 } are rus, violations of these orders are not cognizable under § 1983. The allegations do not indicate 9 |} that the actiuns of the defendant violated a federa) constitutional or statutory right, for the reasons 10 || previously stated above pursuant to the mandates of Moody and Mann. Since there is no 11 substantive right to prisuu wicvance procedures, rchabilitative programs or classification level, the 12 | failure of prison officials to comply with those procedures, provide the programs or reclassify an 13 | inmate is not actionable under § 1983. Accordingly, Ue defendants’ motion to dismiss as to the 14 { alleged violations of Fxecutive and General Orders by each of the defendants is GRANTED and 15 | DISMISSED PREJUDICE. 16 | CONCLUSION 17 Based upon the toregoing, the Court FINDS that no amendment lu pleintifPs complaimt can 18 || cure the defects with regard to his Equal Prntection, Due Process and Violation of Executive and 19 General Order Claims. Accordingly, the Court hereby ORDERS that defendant’s motion to dismiss 20 || bc GRANTED and plaintif?'s complaint be DISMISSED WITH PREM IMDICE?. 21 ORDERED this (¢ # ay of May, 2005. 22 Notice is hereby given that this document was entered on the docketon_MAY 18 205 23 || No separate notice of entry on the docket will | be issued by this Court. tn tek Pteeceel 25 | a 18 205 United States District Judge 26 | pe Clerk 7 Date 27 | * Plaimifl’s 10" Cause of Achun 18 essentially anotner equal proweerion claim mat ts provided) fur uiulo EO 94-19 □□□□□□ which aig |] Debmou's ron oie i rtd for he ume aso os pevotely sated nx eed proecuon aman, ® Court need not address defendant's motion as iurelaies tu dic teyuce uf biuuuuity or Nonexhaustion of Aduriniswasive remedies se Sar cae ml Ueto Comite epg □□□ * Tha Honorable Alex KR Munwun, Untual Raue, Disu lt Judge for the Diswist of tha Nertharn Masiano Islando, by designation.