1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 CHRISTOPHER DICKSON, Case No. 1:17-cv-00294-ADA-BAM (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANTS ESPARZA 11 v. AND DUNCAN’S MOTION FOR SUMMARY JUDGMENT 12 GOMEZ, et al., (ECF No. 83) 13 Defendants. FOURTEEN (14) DAY DEADLINE 14 15 I. Introduction 16 Plaintiff Christopher Dickson (“Plaintiff”) is a state prisoner proceeding pro se and in 17 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on 18 Plaintiff’s second amended complaint against Defendants Gomez, Rios, and Martinez for 19 excessive force in violation of the Eighth Amendment and against Defendants Duncan and 20 Esparza for violations of Plaintiff’s Fourteenth Amendment due process rights. 21 Currently before the Court is Defendants Esparza and Duncan’s motion for summary 22 judgment, filed November 8, 2021, on the grounds that they did not violate Plaintiff’s Fourteenth 23 Amendment due process rights during the Rules Violation Report process for Plaintiff’s RVR for 24 battery on a peace officer at Kern Valley State Prison. (ECF No. 83.) Plaintiff filed an 25 opposition, (ECF No. 88), and Defendants filed a reply, (ECF No. 89). The motion is fully 26 briefed. Local Rule 230(l). 27 For the reasons set forth below, the Court recommends that Defendants’ motion for 28 summary judgment be granted. 1 II. Legal Standard 2 Summary judgment is appropriate when the pleadings, disclosure materials, discovery, 3 and any affidavits provided establish that “there is no genuine dispute as to any material fact and 4 the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A material fact is 5 one that may affect the outcome of the case under the applicable law. See Anderson v. Liberty 6 Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine “if the evidence is such that a 7 reasonable [trier of fact] could return a verdict for the nonmoving party.” Id. 8 The party seeking summary judgment “always bears the initial responsibility of informing 9 the district court of the basis for its motion, and identifying those portions of the pleadings, 10 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 11 which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. 12 Catrett, 477 U.S. 317, 323 (1986). The exact nature of this responsibility, however, varies 13 depending on whether the issue on which summary judgment is sought is one in which the 14 movant or the nonmoving party carries the ultimate burden of proof. See Soremekun v. Thrifty 15 Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). If the movant will have the burden of proof at 16 trial, it must “affirmatively demonstrate that no reasonable trier of fact could find other than for 17 the moving party.” Id. (citing Celotex, 477 U.S. at 323). In contrast, if the nonmoving party will 18 have the burden of proof at trial, “the movant can prevail merely by pointing out that there is an 19 absence of evidence to support the nonmoving party’s case.” Id. 20 If the movant satisfies its initial burden, the nonmoving party must go beyond the 21 allegations in its pleadings to “show a genuine issue of material fact by presenting affirmative 22 evidence from which a jury could find in [its] favor.” F.T.C. v. Stefanchik, 559 F.3d 924, 929 23 (9th Cir. 2009) (emphasis omitted). “[B]ald assertions or a mere scintilla of evidence” will not 24 suffice in this regard. Id. at 929; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 25 U.S. 574, 586 (1986) (“When the moving party has carried its burden under Rule 56[], its 26 opponent must do more than simply show that there is some metaphysical doubt as to the material 27 facts.”) (citation omitted). “Where the record taken as a whole could not lead a rational trier of 28 fact to find for the non-moving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. 1 at 587 (quoting First Nat’l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289 (1968)). 2 In resolving a summary judgment motion, “the court does not make credibility 3 determinations or weigh conflicting evidence.” Soremekun, 509 F.3d at 984. Instead, “[t]he 4 evidence of the [nonmoving party] is to be believed, and all justifiable inferences are to be drawn 5 in [its] favor.” Anderson, 477 U.S. at 255. Inferences, however, are not drawn out of the air; the 6 nonmoving party must produce a factual predicate from which the inference may reasonably be 7 drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244–45 (E.D. Cal. 1985), 8 aff’d, 810 F.2d 898 (9th Cir. 1987). 9 In arriving at these findings and recommendations, the Court carefully reviewed and 10 considered all arguments, points and authorities, declarations, exhibits, statements of undisputed 11 facts and responses thereto, if any, objections, and other papers filed by the parties. Omission of 12 reference to an argument, document, paper, or objection is not to be construed to the effect that 13 this Court did not consider the argument, document, paper, or objection. This Court thoroughly 14 reviewed and considered the evidence it deemed admissible, material, and appropriate. 15 III. Discussion 16 A. Undisputed Material Facts (“UMF”)1 17 1. On May 17, 2016, CDCR issued Plaintiff notice of a Rules Violation Report (RVR), 18 which informed him of the charge of battery on a peace officer on May 5, 2016, and the 19 hearing date of June 10, 2016. (Duncan Decl. ¶ 3, Ex. A; Pl. Depo. 55:7–18.)
20 1 See Defendants’ Statement of Undisputed Material Facts. (ECF No. 83-3.) Plaintiff did not comply with 21 the rules in preparing his opposition, including by failing to reproduce Defendant’s Statement of Undisputed Facts and providing “a citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer, 22 admission, or other document relied upon in support” of any disputed facts, or providing a statement of disputed facts. Local Rule 260(b). As a result, Defendants’ Statement of Undisputed Material Facts is accepted except where 23 brought into dispute by Plaintiff’s verified second amended complaint, signed under penalty of perjury. See Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (verified complaint may be used as an opposing affidavit if it is based on pleader’s personal knowledge of specific facts which are admissible in evidence). 24 In signing his opposition to the summary judgment motion, Plaintiff states: “I, the undersigned declare, attest, affirm that the fore going is true, correct and complete, not meant to mislead, so help me God. I also declare 25 that the above mentioned is completely consistent within itself and with my understanding of the declaration of independence [1776] and the [C]onstitution for the United States of America.” (ECF No. 88, pp.
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 CHRISTOPHER DICKSON, Case No. 1:17-cv-00294-ADA-BAM (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANTS ESPARZA 11 v. AND DUNCAN’S MOTION FOR SUMMARY JUDGMENT 12 GOMEZ, et al., (ECF No. 83) 13 Defendants. FOURTEEN (14) DAY DEADLINE 14 15 I. Introduction 16 Plaintiff Christopher Dickson (“Plaintiff”) is a state prisoner proceeding pro se and in 17 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on 18 Plaintiff’s second amended complaint against Defendants Gomez, Rios, and Martinez for 19 excessive force in violation of the Eighth Amendment and against Defendants Duncan and 20 Esparza for violations of Plaintiff’s Fourteenth Amendment due process rights. 21 Currently before the Court is Defendants Esparza and Duncan’s motion for summary 22 judgment, filed November 8, 2021, on the grounds that they did not violate Plaintiff’s Fourteenth 23 Amendment due process rights during the Rules Violation Report process for Plaintiff’s RVR for 24 battery on a peace officer at Kern Valley State Prison. (ECF No. 83.) Plaintiff filed an 25 opposition, (ECF No. 88), and Defendants filed a reply, (ECF No. 89). The motion is fully 26 briefed. Local Rule 230(l). 27 For the reasons set forth below, the Court recommends that Defendants’ motion for 28 summary judgment be granted. 1 II. Legal Standard 2 Summary judgment is appropriate when the pleadings, disclosure materials, discovery, 3 and any affidavits provided establish that “there is no genuine dispute as to any material fact and 4 the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A material fact is 5 one that may affect the outcome of the case under the applicable law. See Anderson v. Liberty 6 Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine “if the evidence is such that a 7 reasonable [trier of fact] could return a verdict for the nonmoving party.” Id. 8 The party seeking summary judgment “always bears the initial responsibility of informing 9 the district court of the basis for its motion, and identifying those portions of the pleadings, 10 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 11 which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. 12 Catrett, 477 U.S. 317, 323 (1986). The exact nature of this responsibility, however, varies 13 depending on whether the issue on which summary judgment is sought is one in which the 14 movant or the nonmoving party carries the ultimate burden of proof. See Soremekun v. Thrifty 15 Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). If the movant will have the burden of proof at 16 trial, it must “affirmatively demonstrate that no reasonable trier of fact could find other than for 17 the moving party.” Id. (citing Celotex, 477 U.S. at 323). In contrast, if the nonmoving party will 18 have the burden of proof at trial, “the movant can prevail merely by pointing out that there is an 19 absence of evidence to support the nonmoving party’s case.” Id. 20 If the movant satisfies its initial burden, the nonmoving party must go beyond the 21 allegations in its pleadings to “show a genuine issue of material fact by presenting affirmative 22 evidence from which a jury could find in [its] favor.” F.T.C. v. Stefanchik, 559 F.3d 924, 929 23 (9th Cir. 2009) (emphasis omitted). “[B]ald assertions or a mere scintilla of evidence” will not 24 suffice in this regard. Id. at 929; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 25 U.S. 574, 586 (1986) (“When the moving party has carried its burden under Rule 56[], its 26 opponent must do more than simply show that there is some metaphysical doubt as to the material 27 facts.”) (citation omitted). “Where the record taken as a whole could not lead a rational trier of 28 fact to find for the non-moving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. 1 at 587 (quoting First Nat’l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289 (1968)). 2 In resolving a summary judgment motion, “the court does not make credibility 3 determinations or weigh conflicting evidence.” Soremekun, 509 F.3d at 984. Instead, “[t]he 4 evidence of the [nonmoving party] is to be believed, and all justifiable inferences are to be drawn 5 in [its] favor.” Anderson, 477 U.S. at 255. Inferences, however, are not drawn out of the air; the 6 nonmoving party must produce a factual predicate from which the inference may reasonably be 7 drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244–45 (E.D. Cal. 1985), 8 aff’d, 810 F.2d 898 (9th Cir. 1987). 9 In arriving at these findings and recommendations, the Court carefully reviewed and 10 considered all arguments, points and authorities, declarations, exhibits, statements of undisputed 11 facts and responses thereto, if any, objections, and other papers filed by the parties. Omission of 12 reference to an argument, document, paper, or objection is not to be construed to the effect that 13 this Court did not consider the argument, document, paper, or objection. This Court thoroughly 14 reviewed and considered the evidence it deemed admissible, material, and appropriate. 15 III. Discussion 16 A. Undisputed Material Facts (“UMF”)1 17 1. On May 17, 2016, CDCR issued Plaintiff notice of a Rules Violation Report (RVR), 18 which informed him of the charge of battery on a peace officer on May 5, 2016, and the 19 hearing date of June 10, 2016. (Duncan Decl. ¶ 3, Ex. A; Pl. Depo. 55:7–18.)
20 1 See Defendants’ Statement of Undisputed Material Facts. (ECF No. 83-3.) Plaintiff did not comply with 21 the rules in preparing his opposition, including by failing to reproduce Defendant’s Statement of Undisputed Facts and providing “a citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer, 22 admission, or other document relied upon in support” of any disputed facts, or providing a statement of disputed facts. Local Rule 260(b). As a result, Defendants’ Statement of Undisputed Material Facts is accepted except where 23 brought into dispute by Plaintiff’s verified second amended complaint, signed under penalty of perjury. See Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (verified complaint may be used as an opposing affidavit if it is based on pleader’s personal knowledge of specific facts which are admissible in evidence). 24 In signing his opposition to the summary judgment motion, Plaintiff states: “I, the undersigned declare, attest, affirm that the fore going is true, correct and complete, not meant to mislead, so help me God. I also declare 25 that the above mentioned is completely consistent within itself and with my understanding of the declaration of independence [1776] and the [C]onstitution for the United States of America.” (ECF No. 88, pp. 7–8 (unedited 26 text).) Notwithstanding this declaration, the opposition is not signed under penalty of perjury, and therefore cannot be used to dispute Defendants’ Statement of Undisputed Material Facts. See Johnson v. Meltzer, 134 F.3d 1393, 27 1399–1400 (9th Cir. 1998). Unless otherwise indicated, disputed and immaterial facts are omitted from this statement and relevant 28 objections are overruled. 1 2. Defendant Duncan, a correctional lieutenant who was initially assigned as the Senior 2 Hearing Officer (“SHO”), assigned Correctional Officer Duran as the investigative 3 employee (“IE”) in preparation for the RVR hearing. (Duncan Decl. ¶¶ 4–5, Ex. A; Pl. 4 Depo. 59:5–19.) 5 3. Duran was responsible for acting as a fact-finder for Defendant Duncan, obtaining 6 statements prior, and creating an IE report. (Duncan Decl. ¶¶ 4–5, Ex. A.) 7 4. According to the IE’s report, Plaintiff did not make any statements or request any 8 witnesses for the RVR hearing. (Id. ¶ 5, Ex. A.) 9 5. Plaintiff proposed twenty-four total questions, twelve identical questions for Defendants 10 Gomez and Rios. (Id.) 11 6. These questions concerned the number of times that Defendants Gomez and Rios 12 interacted with Plaintiff, how often Plaintiff was taken in and out of his cell, and the 13 extent of force used on Plaintiff during the incident. (Id.; Pl. Depo. 62:3–21, 62:21–25, 14 66:1–5.) 15 7. However, none of these questions addressed Plaintiff’s alleged battery on Defendant 16 Gomez. (Duncan Decl. ¶ 5, Ex. A at 4–6.) 17 8. During the pre-hearing process, Defendant Duncan did allow Plaintiff to ask Defendants 18 Gomez and Rios whether they knew that Plaintiff had suicidal ideations during the 19 incident on May 5, 2016. (Id. ¶ 5, Ex. A.) 20 9. Defendant Duncan found the remainder of Plaintiff’s questions irrelevant to the 21 adjudication of the charge of battery on a peace officer and did not allow Plaintiff to ask 22 those questions before the RVR hearing. (Id.) 23 10. Plaintiff proposed to ask eight questions of inmate Washington, three questions of inmate 24 Garafolo, and two questions of a psychologist. (Id. ¶ 6, Ex. A at 4–6.) 25 11. However, during the pre-hearing process, Defendant Duncan also found the majority of 26 Plaintiff’s questions of those witnesses to be irrelevant to the adjudication of the charge of 27 battery on a peace officer. (Id. ¶ 6, Ex. A.) 28 /// 1 12. On June 10, 2016, Defendant Esparza was the SHO for Plaintiff’s RVR hearing for 2 battery on a peace officer. (Esparza Decl. ¶ 4, Ex. A; Pl. Depo. 63:1–8.) 3 13. At Plaintiff’s RVR hearing, Defendant Esparza read the charges, reviewed the IE’s report, 4 the statements provided, and noted that Plaintiff did not request any witnesses before the 5 hearing. (Esparza Decl. ¶¶ 4–5, Ex. A.) 6 14. Plaintiff declined to make a statement in his defense at the hearing, but informed Esparza 7 that he was unable to question Defendants Officers Gomez and Rios. (Id. ¶¶ 4–5, Ex. A, 8 p. 9; Pl. Depo. 63:18–25, 64:1–16.) 9 15. After reviewing Plaintiff’s proposed questions, Defendant Esparza determined that they 10 were not relevant to the charge of battery on a peace officer. (Esparza Decl. ¶¶ 4–5.) 11 16. Defendant Esparza reviewed the evidence of battery on a peace officer including staff 12 incident reports that Plaintiff kicked Defendant Gomez in the leg during the incident on 13 May 5, 2016. (Id. ¶¶ 4–5, Ex. A, pp. 9–10.) 14 17. Based upon a preponderance of the evidence including the report that Plaintiff kicked 15 Defendant Gomez, Defendant Esparza found Plaintiff guilty of battery on a peace officer. 16 (Id.; Pl. Depo. 67:18–23.) 17 18. Following the RVR hearing, Defendant Esparza issued a written statement to Plaintiff 18 which outlined the evidence relied upon and the reasons for the finding of guilt. (Id. ¶ 6, 19 Ex. A, p. 10.) 20 19. If Plaintiff believed that Defendants Martinez, Gomez, or Rios engaged in misconduct or 21 used excessive force during the incident, he could address those concerns separately by 22 submitting a CDCR Form 602 staff complaint. (Duncan Decl. ¶ 5; Esparza Decl. ¶ 5.) 23 B. Fourteenth Amendment – Due Process 24 1. Legal Standards 25 The Due Process Clause protects prisoners from being deprived of liberty without due 26 process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a cause of action 27 for deprivation of procedural due process, a plaintiff must first establish the existence of a liberty 28 interest for which the protection is sought. Liberty interests may arise from the Due Process 1 Clause itself or from state law. Hewitt v. Helms, 459 U.S. 460, 466 (1983). 2 “Prison disciplinary proceedings are not part of a criminal prosecution, and the full 3 panoply of rights due a defendant in such proceedings does not apply.” Wolff, 418 U.S. at 556. 4 The minimum procedural requirements that must be met in such proceedings are: (1) written 5 notice of the charges; (2) at least 24 hours between the time the prisoner receives written notice 6 and the time of the hearing, so that the prisoner may prepare his defense; (3) a written statement 7 by the fact finders of the evidence they rely on and reasons for taking disciplinary action; (4) the 8 right of the prisoner to call witnesses in his defense, when permitting him to do so would not be 9 unduly hazardous to institutional safety or correctional goals; and (5) legal assistance to the 10 prisoner where the prisoner is illiterate or the issues presented are legally complex. Id. at 563–71. 11 As long as the five minimum Wolff requirements are met, due process has been satisfied. Walker 12 v. Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 13 515 U.S. 472 (1995). 14 While allegations that prison officials refused to call a requested witness could potentially 15 state a cognizable claim, see Serrano v. Francis, 345 F.3d 1071, 1079–80 (9th Cir. 2003), the 16 right is not unlimited, see Williams v. Thomas, 492 F. App’x 732, 733 (9th Cir. 2012) (“Prisoners 17 have a limited procedural due process right to call witnesses at disciplinary hearings so long as it 18 will not be unduly hazardous to institutional safety or correctional goals. . . . Prison officials may 19 be required to explain, in a limited manner, the reason why witnesses were not allowed to 20 testify.”). Hearing officers may also deny a requested witness on grounds other than institutional 21 safety. Wolff, 418 U.S. at 566 (explaining that witnesses may be denied in order to keep hearing 22 within reasonable limits, as well as “for irrelevance, lack of necessity, or the hazards presented in 23 individual cases”). 24 In addition, “some evidence” must support the decision of the hearing officer, 25 Superintendent v. Hill, 472 U.S. 445, 455 (1985), and the evidence must have some indicia of 26 reliability, Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987). The “some evidence” standard is 27 not particularly stringent, and the relevant inquiry is whether “there is any evidence in the record 28 that could support the conclusion reached. . . .” Hill, 472 U.S. at 455–56. 1 2. Parties’ Positions 2 Defendants contend that it is undisputed that Plaintiff was provided with the minimum 3 required procedural due process for his RVR hearings, and all five Wolff requirements were met. 4 To the extent Defendants Duncan and Esparza refused to allow Plaintiff to ask his proposed 5 questions to witnesses before or during the RVR hearing, those questions were found to be 6 irrelevant to the disciplinary charge of battery on a peace officer, and Defendants’ explanation of 7 those findings is all that the Constitution requires. To the extent Plaintiff claims that his 8 substantive due process rights were violated, the RVR guilty finding was supported by “some 9 evidence” as required by Hill. 10 In opposition, Plaintiff argues that two of the five Wolff factors were not met, because he 11 did not receive the right to call witnesses and he did not have a fair and impartial decision-maker 12 at his RVR hearing. Plaintiff states that he asked IE Duran about witnesses at the hearing, and 13 was informed that because Plaintiff was in Ad-Seg, they would not bring the witnesses to Ad-Seg 14 for the hearing, but because Plaintiff submitted questions for the witnesses, they would all be 15 answered and witnesses would not be needed or necessary. Plaintiff did not ask any of the 16 witnesses whether Plaintiff ever kicked or hit Defendant Gomez because the defendants had 17 already lied on their report. Plaintiff’s question for Inmate Washington, “Did you see inmate 18 Dickson kick any of the correctional officers?” had a firsthand account of the incident but was 19 deemed irrelevant by Defendant Duncan. Finally, Plaintiff argues that he made a statement 20 during the hearing, pled not guilty, and stated that he was attacked and did not kick Defendant 21 Gomez. 22 In reply, Defendants reiterate that they provided the minimum procedural due process 23 required by Wolff, and Defendants’ refusal to allow Plaintiff to ask his proposed questions to 24 witnesses before or during the RVR hearing did not violate Plaintiff’s due process rights because 25 those questions were irrelevant to the disciplinary charge, which was explained to Plaintiff. In 26 addition, Plaintiff does not specifically respond to Defendants’ argument regarding substantive 27 due process, and has therefore abandoned the claim. Even if the claim were not abandoned, 28 Defendants are entitled to summary judgment because Plaintiff did not demonstrate a genuine 1 dispute of material fact that there was “some evidence” to support Plaintiff’s RVR conviction. 2 3. Analysis 3 The parties do not dispute that Plaintiff was provided written notice of the disciplinary 4 charges at least 24 hours before his RVR hearing and a written statement by the fact finders of the 5 evidence relied on and the reasons for taking disciplinary action, or that Plaintiff required legal 6 assistance beyond IE Duran. The only remaining issues are whether Plaintiff was afforded the 7 right to call witnesses in his defense, and whether Plaintiff had a fair and impartial decision- 8 maker at the hearing. 9 With respect to the requirement for a fair and impartial decision-maker, Plaintiff has 10 provided only his own arguments to support that either Defendant Duncan or Esparza was not an 11 impartial decision-maker. Plaintiff argues only that because both Defendants found the majority 12 of Plaintiff’s proposed questions for witnesses to be irrelevant to the disciplinary charge, they 13 were biased and never intended to give him a fair hearing. Plaintiff’s arguments, unsupported by 14 any evidence in the record, are not sufficient to create a material dispute of fact as to whether 15 Defendant Duncan or Esparza was not a fair or impartial decision-maker. See Rivera v. 16 AMTRAK, 331 F.3d 1074, 1078 (9th Cir. 2003) (“Conclusory allegations unsupported by factual 17 data cannot defeat summary judgment.”). 18 As to Plaintiff’s right to call witnesses, it is undisputed that Plaintiff did not request the 19 testimony of any witnesses at the RVR hearing. UMF Nos. 4, 13. While Plaintiff may have been 20 incorrectly informed by IE Duran that witnesses would not be needed or necessary at the hearing 21 in light of Plaintiff’s submission of questions, it remains undisputed that Plaintiff did not request 22 the presence of any witnesses at the hearing. (See ECF No. 88, p. 2.) Accordingly, Defendants 23 did not refuse to call any requested witnesses. 24 Moreover, the right to call witnesses is not unlimited, and requested witnesses—including 25 requested witness questions—may be denied on grounds other than institutional safety. See 26 Wolff, 418 U.S. at 566. Similarly, hearing officers may deny requests for witnesses or questions 27 for other reasons, including “irrelevance.” See id. It is undisputed that Defendants explained that 28 the specific questions were found to be not relevant to the disciplinary charge at issue. UMF Nos. 1 9, 11, 15, 18. That explanation satisfied the requirements of due process. See Williams, 492 F. 2 App’x at 733 (“Prison officials may be required to explain, in a limited manner, the reason why 3 witnesses were not allowed to testify.”). Even the refusal to ask Plaintiff’s question to Inmate 4 Washington, “Did you see Inmate Dickson kick any of the Correctional Officers?”, which 5 Plaintiff argues would have provided a firsthand account of the incident at issue, does not 6 demonstrate a violation of Plaintiff’s due process rights. While Plaintiff argues that permitting 7 Inmate Washington to answer this question would have provided a firsthand account of the 8 incident at issue, Defendants contend that there are no other questions that would have established 9 that Inmate Washington was in a position to see whether Plaintiff kicked any correctional officers 10 during the entirety of the incident, and that Inmate Washington’s declarations asserting that he 11 saw officers using force on Plaintiff are not relevant to whether Plaintiff was guilty of the charge 12 of battery of a peace officer. The Court agrees that while Inmate Washington’s declarations may 13 create a dispute of fact as to whether excessive force was used on Plaintiff (not at issue in the 14 instant summary judgment), this evidence does nothing to create a dispute of fact as to whether 15 due process was provided during Plaintiff’s RVR hearing. Plaintiff’s mere disagreement with 16 Defendants’ finding that the majority of his witness questions were not relevant to the 17 disciplinary charge, without more, is not sufficient to create a dispute of material fact. 18 Finally, the Court agrees that Plaintiff has apparently abandoned any claim regarding 19 substantive due process. However, even if the claim were not abandoned, it is undisputed that the 20 RVR findings were based on “some evidence,” including Defendant Gomez’s incident report and 21 a lack of evidence to exonerate Plaintiff. Although Plaintiff states in his opposition brief that he 22 did make a statement that he was attacked and did not kick Defendant Gomez, the opposition is 23 not signed under penalty of perjury and therefore is not sufficient to create a dispute of fact. 24 (ECF No. 88, p. 4.) Plaintiff does not claim that he made any such statement in his second 25 amended complaint, which is signed under penalty of perjury. (See ECF No. 22.) Thus, 26 summary judgment is appropriate as to any substantive due process claim. 27 /// 28 /// 1 IV. Conclusion and Recommendations 2 For the reasons explained above, the Court finds that Defendants Duncan and Esparza are 3 entitled to summary judgment as to Plaintiff’s Fourteenth Amendment due process claims, and 4 Defendants Duncan and Esparza should be dismissed from this action. 5 Accordingly, IT IS HEREBY RECOMMENDED as follows: 6 1. Defendants Duncan and Esparza’s motion for summary judgment, (ECF No. 83), be 7 granted; 8 2. Defendants Duncan and Esparza be dismissed from this action; and 9 3. This action proceed on Plaintiff’s second amended complaint against Defendants Gomez, 10 Rios, and Martinez for excessive force in violation of the Eighth Amendment. 11 * * * 12 These Findings and Recommendations will be submitted to the United States District 13 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 14 fourteen (14) days after being served with these Findings and Recommendations, the parties may 15 file written objections with the court. The document should be captioned “Objections to 16 Magistrate Judge’s Findings and Recommendations.” The parties are advised that failure to file 17 objections within the specified time may result in the waiver of the “right to challenge the 18 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838–39 (9th Cir. 19 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 20 IT IS SO ORDERED. 21
22 Dated: September 26, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 23
24 25 26 27 28