(PC) Flow-Sunkett v. T. Redmon

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 GLENN S. SUNKETT, Case No. 1:21-cv-01137-HBK (PC)

11 Plaintiff, ORDER GRANTING DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE 12 v. (Doc. No. 55-2) 13 T. BOERUM and T. REDMON, ORDER GRANTING DEFENDANTS’ MOTION 14 Defendants. TO DISMISS WITH PREJUDICE1

(Doc. No. 55) 15

16 17 Pending before the Court is Defendants T. Boerum and T. Redmon’s Motion to Dismiss 18 filed on June 18, 2024. (Doc. No. 55, “Motion”). Included within Defendant’s Motion is a 19 Request for Judicial Notice. (Doc. No. 55-2). Plaintiff timely filed an Opposition (Doc. No. 56), 20 and Defendants filed a Reply (Doc. No. 57). For reasons set forth below, the Court grants both 21 the Request for Judicial Notice and the Motion to Dismiss. 22 BACKGROUND 23 Plaintiff, a prisoner, initiated this action by filing a civil rights complaint pursuant to 42 24 U.S.C. § 1983. (Doc. No. 1). Plaintiff is proceeding on his Third Amended Complaint (“TAC”), 25 as screened, which alleges Fourteenth Amendment due process claims against Defendants 26 Boerum and Redmon for affixing an escape risk determinant to Plaintiff’s central file and adding 27 1 Both parties have consented to the jurisdiction of a magistrate judge under 28 U.S.C. § 636(c)(1). (Doc. 28 No. 61). 1 19 points to his classification score without first providing notice to Plaintiff. (Doc. Nos. 38, 39, 2 40). Plaintiff’s resultant classification made him ineligible for certain privileges, including 3 education programs, work opportunities, and family visits. (Doc. No. 38 at 7-8 ¶ 49). Plaintiff 4 alleges that the affixing of the escape risk determinant was based on incomplete and erroneous 5 information. Specifically, a 2009 disciplinary report from the Mendocino County Jail found 6 Plaintiff guilty of attempted escape, but the findings were cast into doubt by exculpatory evidence 7 that emerged in a related criminal prosecution that was ultimately dismissed in the interest of 8 justice by the Mendocino County Superior Court upon a motion by the District Attorney’s Office. 9 (Id. at 3-4 ¶¶ 14-22). 10 Plaintiff states he only learned of the escape determinant roughly 20 months after it was 11 affixed. Specifically, on October 19, 2017, Plaintiff had his annual Institutional Classification 12 Committee (“ICC”) hearing. (Id. at 13 ¶ 46). Following changes to CDCR policy, Plaintiff met 13 the newly lowered threshold for reclassification to Medium A Custody, which normally would 14 have made him eligible for family visits and other programs and work opportunities. (Id. at 13 ¶ 15 46). At the hearing, Plaintiff was provided an application for family visitation, which he 16 completed. (Id. ¶ 47). Plaintiff’s application was provisionally approved, but ultimately rejected 17 upon the discovery that Plaintiff’s C-file had the escape risk determinant that was affixed nearly 18 two years earlier. (Id. ¶¶ 48-49). 19 When Plaintiff filed a grievance challenging the affixing of the escape risk determinant 20 without his knowledge or an opportunity to be heard, the grievance was addressed at the first 21 level by Defendant T. Redmon, who was the individual who had initially recommended the 22 escape risk determinant be affixed. (Id. ¶ 52). Redmon denied the request to remove the escape 23 risk determinant, but partially granted the grievance in permitting Plaintiff an opportunity to be 24 heard by an ICC panel. (Id.). The panel was comprised of T. Redmon, S. Cranmer, and J. Castro, 25 whom Plaintiff asserts “all . . . previously had direct participation in either Sunkett’s family- 26 visiting denial, the 602-appeal process and/or the affixing of the administrative determinant,” and 27 thus Plaintiff contends they could not be fair and impartial in reviewing the decisions Plaintiff 28 sought to challenge. (Id. ¶ 53). The panel upheld the affixing of the escape risk determinant 1 based on Plaintiff’s escape history, citing to CDCR Department Operations Manual Section 2 54020 and Title 15 of the California Code Regulations Section 3177(b)(1). (Id. ¶ 54). After 3 exhausting his administrative remedies, Plaintiff ultimately filed the instant federal lawsuit. (Id. 4 ¶¶ 55-58); (Doc. No. 1). 5 Defendant’s pending Motion seeks dismissal of Plaintiff’s TAC under Rule 12(b)(6) on 6 two grounds: (1) Plaintiff’s TAC fails to allege a due process claim under the Fourteenth 7 Amendment; and (2) Defendants are entitled to qualified immunity because during the applicable 8 time, there was no clearly established right to be afforded due process protections when affixing 9 an escape risk determinant to an inmate’s central file. (See generally Doc. No. 55-1 at 4-11). 10 In his brief Opposition, Plaintiff argues that by not disputing the facts asserted in his TAC, 11 Defendants effectively concede that they violated Plaintiff’s constitutional rights. (Doc. No. 56 at 12 2). In their Reply, Defendants assert that even assuming the truth of Plaintiff’s allegations, as the 13 Court must in reviewing a Rule 12(b)(6) motion, Plaintiff’s TAC fails to state a claim because 14 Plaintiff has no liberty interest in a particular classification status or score, family visits, 15 programming, or work assignments. (Doc. No. 57 at 2). 16 REQUEST FOR JUDICIAL NOTICE 17 Attached to Defendants’ Motion is a Request for Judicial Notice. (Doc. No. 55-2). 18 Although the motion to dismiss stage typically does not involve considering matters outside the 19 pleadings, the court may consider items that are properly judicially noticed. Rosal v. First Fed. 20 Bank of Cal., 671 F. Supp. 2d 1111, 1120 (N.D. Cal. 2009). Defendants request the Court take 21 judicial notice of six prison regulations, including two provisions of Title 15 of the California 22 Code of Regulations and four provisions of CDCR’s Department Operations Manual (“DOM”), 23 which were in effect at the time of the events giving rise to Plaintiff’s claims: 24 1. California Code of Regulations, title 15, section 3177 (2015), Family Visiting 25 (Overnight). 26 2. California Code of Regulations, title 15, section 3375.2 (2015), Administrative 27 Determinants. 28 3. CDCR 2015 DOM, section 54020.33, Family Visiting General Information. 1 4. CDCR 2015 DOM, section 54020.33.1, Inmate Family Visiting Eligibility. 2 5. CDCR DOM, section 54020.33.2, Inmate Applications for Family Visits. 3 6. CDCR DOM, section 61010.11.5, Placement. 4 Federal Rule of Evidence 201 permits a court to take judicial notice of facts that are “not 5 subject to reasonable dispute” because they are either “generally known within the trial court’s 6 territorial jurisdiction,” or they “can be accurately and readily determined from sources whose 7 accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). The Court may take judicial 8 notice of a pertinent law or regulations at any stage of the proceedings. Id.; see also National 9 Agricultural Chemicals Assn. v. Rominger, 500 F. Supp. 465, 472 (E.D. Cal. 1980). Courts may 10 take judicial notice of state regulations, including prison rules and regulations. See Harrison v. 11 Kernan, 971 F.3d 1069, 1071 n.2 (9th Cir. 2020) (taking judicial notice of relevant Title 15 12 provisions and regulatory history); Navajo Nation v. Dep’t of the Interior, 876 F.3d 1144, 1153 13 n.3 (9th Cir. 2017) (“The Court may take judicial notice of . . . regulations not included in the 14 plaintiff’s complaint.”); Mangiaracina v. Penzone, 849 F.3d 1191, 1193 n.1 (9th Cir. 2017) 15 (taking judicial notice of jail’s rules and regulations for inmates). The Court may take judicial 16 notice on its own or at the request of any party, and “must take judicial notice if a party requests it 17 and the court is supplied with the necessary information.” Fed. R. Evid. 201(c). 18 Here, Defendants ask the Court to take judicial notice of provisions from Title 15 and the 19 DOM that were in effect in 2015 and have direct relevance to Plaintiff’s due process claims. The 20 provisions concern eligibility for family visits, applications for family visits, the process for 21 affixing administrative determinants including the escape risk determinant applied to Plaintiff’s 22 file, and the impact of escape risk determinants on an inmate’s eligibility for various prison 23 programs. (See generally Doc. No. 55-2 at 4-21). The existence and content of these regulatory 24 provisions is not subject to reasonable dispute, nor does Plaintiff challenge Defendants’ Request. 25 (See Doc. No. 56). And because Defendants have provided the necessary information to establish 26 the propriety of judicial notice, the Court must grant the request under Federal Rule of Evidence 27 201(c). 28 //// 1 APPLICABLE LAW 2 A. Rule 12(b)(6) 3 A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure “tests the 4 legal sufficiency of a claim.” Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 5 2011). Dismissal for failure to state a claim is proper if there is a “lack of a cognizable legal 6 theory or the absence of sufficient facts alleged under a cognizable legal theory.” Id.; see also 7 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (to survive a motion to dismiss, the 8 complaint must have sufficient facts to state a facially plausible claim to relief). In deciding a 9 motion under Rule 12(b)(6), the court accepts as true all well-pled factual allegations in the 10 complaint and determines whether the factual allegations are sufficient to state a right to relief 11 above the speculative level. Ashcroft v. Iqbal, 556 U.S. 662 (2009); see also Nw. Envtl. Def. Ctr. 12 v. Brown, 640 F.3d 1063, 1070 (9th Cir. 2011) (court accepts as true all material allegations in the 13 complaint, as well as any reasonable inferences to be drawn from them). 14 Where a motion to dismiss is granted, a district court must decide whether to grant leave 15 to amend. Courts are instructed to apply Rule 15 with extreme liberality. Eminence Capital, LLC 16 v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (citations omitted); Winebarger v. 17 Pennsylvania Higher Educ. Assistance Agency, 411 F. Supp. 3d 1070, 1082 (C.D. Cal. 2019). 18 Only where leave to amend would be futile, because “the allegation of other facts consistent with 19 the challenged pleading could not possibly cure the deficiency,” should leave to amend be denied. 20 DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992). 21 B. Fourteenth Amendment Due Process 22 The Due Process Clause of the Fourteenth Amendment prohibits states from “depriv[ing] 23 any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 24 1. “The requirements of procedural due process apply only to the deprivation of interests 25 encompassed by the Fourteenth Amendment’s protection of liberty and property.” Bd. of Regents 26 of State Colleges v. Roth, 408 U.S. 564, 569 (1972). “To state a procedural due process claim, [a 27 plaintiff] must allege ‘(1) a liberty or property interest protected by the Constitution; (2) a 28 deprivation of the interest by the government; [and] (3) lack of process.’” Wright v. Riveland, 1 219 F.3d 905, 913 (9th Cir. 2000) (quoting Portman v. Cnty. of Santa Clara, 995 F.2d 898, 904 2 (9th Cir. 1993)). As such, the procedural guarantees of due process apply only when a 3 constitutionally protected interest is at stake. See Ingraham v. Wright, 430 U.S. 651, 672 (1977); 4 Schroeder v. McDonald, 55 F.3d 454, 462 (9th Cir. 1995). 5 Incarcerated persons are protected from deprivation of a liberty interest without due 6 process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Protected liberty interests “may 7 arise from two sources—the Due Process Clause itself and the laws of the States.” Kentucky 8 Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989) (citation omitted). However, state law 9 establishes a liberty interest only where denial of the interest “imposes atypical and significant 10 hardship on the inmate in relation to the ordinary incidents of prison life.” Keenan v. Hall, 83 11 F.3d 1083, 1088 (9th Cir. 1996) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). 12 Because there is no single standard for determining whether a prison hardship is atypical 13 and significant, the “condition or combination of conditions or factors . . . requires case by case, 14 fact by fact consideration.” Keenan, 83 F.3d at 1089; see also Chappell v. Mandeville, 706 F.3d 15 1052, 1064 (9th Cir. 2013). The Sandin Court identified three key factors for courts to consider: 16 (1) whether the challenged condition “mirrored those conditions imposed upon inmates in 17 administrative segregation and protective custody[,]” and thus comported with the prison’s 18 discretionary authority; (2) the duration of the condition and the degree of restraint imposed; and 19 (3) whether the state’s action will inevitably affect the duration of the prisoner’s sentence. 20 Sandin, 515 U.S. at 486–87; see also Serrano v. Francis, 345 F.3d 1071, 1078 (9th Cir. 2003), 21 cert denied, 543 U.S. 825 (2004). 22 DISCUSSION 23 A. Fourteenth Amendment Due Process 24 Here, Plaintiff alleges a due process violation based on Defendants conducting closed 25 door reviews of his escape history2 and affixing an escape risk determinant that made Plaintiff 26 2 According to the TAC, Redmon conducted an annual review on December 4, 2015 without any other 27 staff involved, in which he recommended an escape risk determinant be affixed to Plaintiff’s central file based on the incident at Mendocino County Jail, and on March 3, 2016, Defendant Boerum approved 28 Redmon’s recommendation in another “closed door” review. (Doc. No. 38 at 6-7 ¶¶ 41-43). 1 ineligible for various privileges, including family visits, educational programs, and work 2 opportunities. (See generally Doc. No. 38). Plaintiff was never given notice of the reviews, 3 much less an opportunity to be heard until the classification change had already been made, and 4 he only learned of the change nearly two years later. (Id. at 7-8 ¶ 49). Liberally construing the 5 TAC, Plaintiff also contends that the lack of a fair and impartial grievance review and subsequent 6 ICC panel hearing constituted a further due process violation. (Id. at 14 ¶¶ 52-54). 7 Defendants do not dispute that they provided no notice or other due process to Plaintiff in 8 determining his classification status based on the escape determinant. (See generally Doc. No. 9 55). Thus, the central issue before the Court is a question of law: whether the interests implicated 10 in Defendants’ administrative actions qualified as affecting Plaintiff’s liberty interests under 11 Sandin or under state law to warrant due process protections. 12 While the Court found at the screening stage that Plaintiff’s claims were sufficient to 13 survive sua sponte screening,3 upon fuller review, the Court concludes that neither state law nor 14 the Due Process Clause confers a liberty interest on Plaintiff in a particular classification status or 15 in family visitation privileges. 16 1. Plaintiff Has No Liberty Interest in a Classification or Security Status 17 It is well settled that prisoners have no constitutional right to a particular classification 18 status, even if the classification status results in a loss of privileges. Moody v. Daggett, 429 U.S. 19 78, 88 n. 9 (1976) (expressly rejecting claim that prisoner classification and rehabilitative 20 programs invoked due process protections); Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th 21 Cir. 1987) (agreeing that inmate had no constitutional right to particular classification status and 22 further finding no independent right under state law). See also Neal v. Shimoda, 131 F. 3d 818, 23 828 (9th Cir. 1997). Thus, the determination or any change in Plaintiff’s classification status 24 from “no threat to the security of the institution” to “threatening,” and the addition of 19 points to 25 3 The fact that the Court found Plaintiff’s claims plausible at the screening stage does not foreclose the 26 possibility of granting a motion to dismiss. See Forte v. Hughes, 2014 WL 5603788, *1 (E.D. Cal. Nov. 3, 2014) (noting a screening order does not rule on the merits of the proposed action but instead evaluates 27 whether the claim is cognizable and is not a substitute for a 12(b)(6) motion); see also Teahan v. Wilhelm, 481 F.Supp.2d 1115, 1119 (S.D. Cal. March 28, 2007) (“a defendant’s right to bring a motion to dismiss is 28 not foreclosed by the issuance of a sua sponte screening providing that the prisoner has stated a claim”). 1 his classification score, did not by themselves invoke a liberty interest sufficient to trigger due 2 process protections. (See Doc. No. 38 at 12 ¶ 42); see Moody, 429 U.S. at 88 n. 9. Thus, Plaintiff 3 was not entitled to due process protections before Defendants determined Plaintiff’s classification 4 status. See Sandin, 515 U.S. at 484. 5 An inmate may state a cognizable due process claim if classification changes were made 6 for unconstitutional reasons, for example if they were done in retaliation for plaintiff’s exercise of 7 his First Amendment rights, or done for religious, political, or racially discriminatory reasons. 8 Here, however, there are no facts to suggest that Plaintiff’s escape risk determinant was affixed 9 for any improper reason. Plaintiff acknowledges that Defendants did not initiate the escape 10 review on their own but did so pursuant to the ICC’s statement at Plaintiff’s March 7, 2014 11 classification hearing that such a review would be conducted in the future. (See Doc. No. 38 at 11 12 ¶¶ 33-34). The TAC alleges no facts to suggest Defendants’ actions was driven by a retaliatory 13 motive or animus of any kind. Indeed, Plaintiff admits that despite the dismissal of the felony 14 case, the exculpatory information uncovered during Plaintiff’s prosecution was never added to his 15 county disciplinary report, and the report remains part of his central state file. (Id. at 9-10 ¶ 21). 16 On March 22, 2018, the Mendocino County Superior Court ordered the destruction of all records 17 related to Plaintiff’s case, including the original county jail disciplinary report. (Id. at 10 ¶ 22). 18 Thus, because Plaintiff has no liberty interest in his particular classification status, he was 19 not entitled to any due process protections on that basis. Nor does Plaintiff allege any facts to 20 suggest that the change to his classification status were driven by improper motives that would 21 give rise to a First Amendment or Fourteenth Amendment Equal Protection claim. 22 2. Plaintiff Has No Liberty Interest in Family Visitation 23 Likewise, “it is well-settled that prisoners have no constitutional right while incarcerated 24 to contact visits or conjugal visits.” Gerber v. Hickman, 291 F.3d 617, 622 (9th Cir. 2002), cert. 25 denied, 537 U.S. 1039 (2002). And “the fact that California prison officials may choose to permit 26 some inmates the privilege of conjugal visits is simply irrelevant to whether there is a 27 constitutional right to conjugal visits . . .” (Id. at 621-22). Instead, “an inmate’s inability to visit 28 with whom he wishes is an ‘ordinary incident of prison life’” and thus does not impose an 1 atypical and significant hardship. Macedon v. California Dep't of Corr., 67 F. App’x 407, 408 2 (9th Cir. 2003) (quoting Sandin, 515 U.S. at 485). Nor does an examination of the remaining 3 Sandin factors yield a different result. 4 While the indefinite duration of Plaintiff’s security restrictions, including permanent 5 exclusion from family visitation, is a factor to be considered under Sandin, the “degree of 6 restriction” at issue falls short of the kind of severe restraint on liberty that the Supreme Court has 7 found sufficient to invoke due process protections. See, e.g., Wilkinson v. Austin, 545 U.S. 209, 8 223–24 (2005) (finding that placement in a supermax prison involved an atypical and significant 9 hardship because it mirrored the restrictions of administrative segregation and was of indefinite 10 duration); see also Sandin, 515 U.S. at 486 (finding that 30 days in disciplinary segregation did 11 not constitute atypical and significant hardship); but see Aref v. Lynch, 833 F.3d 242, 258 (D.C. 12 Cir. 2016) (finding inmates had liberty interest in not being transferred to restrictive federal 13 facility because placement there could be permanent and thus an inmate “may spend years denied 14 contact with their loved ones and with diminished ability to communicate with them.”). 15 Therefore, because restricted access to contact visits is an ordinary incident of prison life, the fact 16 that Plaintiff may be permanently ineligible for them does not by itself establish an atypical and 17 significant hardship. 18 Finally, there is no evidence in the record to suggest that the imposition of an escape risk 19 determinant will “inevitably affect the duration” of Plaintiff’s prison sentence. See Sandin, 515 20 U.S. at 487. Plaintiff does not contend that his consideration for parole will be affected by the 21 determinant, and a mere speculative contention that Plaintiff will face greater difficulty obtaining 22 parole is insufficient to trigger the due process protections of Wolff. See Ramirez v. Galaza, 334 23 F.3d 850, 861 (9th Cir. 2003); Sandin, 515 U.S. at 487 (finding no due process protections 24 triggered where plaintiff failed to show disciplinary conviction “will inevitably affect the duration 25 of his sentence”) (emphasis added); see also Bennett v. Curry, 386 F. App’x 645, 646 (9th Cir. 26 2010) (dismissing due process claim where plaintiff found “unsuitable for parole for several 27 independently adequate reasons and not only because of the disciplinary record he seeks to 28 challenge. Because his disciplinary record did not ‘alter the balance’ in his parole suitability 1 determination, its effect if any on the duration of his sentence ‘is simply too attenuated to invoke 2 the procedural guarantees of the Due Process Clause.’”) citing Sandin, 515 U.S. at 487. While it 3 is possible that Plaintiff’s classification change may affect his future suitability for parole, there 4 are no facts to indicate it “will inevitably affect the duration of his sentence” and thus this factor 5 weighs against finding that the classification change imposed an atypical and significant hardship 6 relative to the incidents of prisoner life. See Guzman v. Valdez, 2024 WL 2817509, at *4 (E.D. 7 Cal. June 3, 2024). 8 On balance, the Court finds that the three Sandin factors weigh against finding that 9 Defendants’ affixing of an escape risk determinant on Plaintiff’s central file imposed an atypical 10 and significant hardship on Plaintiff in relation to the ordinary incidents of prison life, and thus 11 did not trigger the protections of the due process clause. 12 For the same reason, the Court finds that Plaintiff’s vague complaints that he was denied 13 unspecified jobs or programming opportunities due to his classification status fails to allege an 14 “atypical and significant hardship” that would rise to a liberty interest. Sandin, 515 U.S. at 484; 15 Moody, 429 U.S. at 88 n. 9. See also Walker v. Gomez, 370 F.3d 969, 973 (9th Cir.2004) (no 16 liberty interest in employment or prison job). 17 3. State Law Does Not Confer a Liberty Interest in Family Visitation 18 Furthermore, the applicable state prison regulations establish a liberty interest in family 19 visitation or other programs. Both Title 15 and the DOM refer to family visits as a “privilege.” 20 See 2015 Cal. Code Regs. tit. 15 § 3177 (Doc. No. 55-2 at 5) (noting that family visits “shall be 21 restricted as necessary to maintain order, the safety of persons, the security of the 22 institution/facility, and required prison activities and operations . . .”); see also DOM 54020.33 23 (Doc. No. 55-2 at 16). Likewise, the regulations governing applications for family visits make 24 clear that eligibility is contingent on a review of factors including escape history, commitment 25 offense, behavior history, and current case factors. DOM 54020.33.2 (Doc. No. 55-2 at 18). As 26 noted above, the mere fact that a prison official may confer the privilege of family visitation on 27 certain inmates does not create a liberty interest in that privilege. See Gerber, 291 F.3d at 621- 28 22; see also Davis v. Holbrook, 2024 WL 3993878, at *4 (C.D. Cal. June 24, 2024) (collecting 1 cases); Cooper v. Garcia, 55 F. Supp. 2d 1090, 1098 (S.D. Cal. 1999). 2 In sum, neither the Due Process Clause nor state law establishes a liberty interest in 3 Plaintiff’s access to family visitation, therefore Plaintiff was not entitled to due process 4 protections when Defendants conducted an escape review that ultimately resulted in Plaintiff 5 becoming ineligible for the family visitation program. 6 To the extent Plaintiff asserts a due process violation based on how his grievance was 7 processed, including the re-hearing he was granted regarding the escape risk determinant, this 8 likewise fails to allege a cognizable due process claim. This is because inmates lack a 9 constitutional right to a specific grievance procedure and there are no constitutional requirements 10 regarding how a grievance system is operated, even if plaintiff believes the process to be unfair or 11 not accurate. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams, 855 12 F.2d 639, 640 (9th Cir. 1988). Whether the re-hearing is construed as part of the grievance 13 process or as a classification hearing, for the reasons discussed above, neither procedure invokes 14 a liberty interest or a constitutional right that would entitle Plaintiff to any due process. See 15 Moody, 429 U.S. at 88 n. 9 (no liberty interest in classification status); see Ramirez, 334 F.3d at 16 861 (no constitutional right to a particular grievance process). The mere fact that some of the 17 same prison officials who were involved in the initial affixing of an escape risk determinant or 18 denial of Plaintiff’s family visit application were also involved in reviewing Plaintiff’s grievance 19 does not by itself constitute a due process violation because Plaintiff has no constitutional right to 20 a particular grievance process, even if Plaintiff believes the process to be unfair. Id. 21 B. Qualified Immunity 22 A government official is entitled to qualified immunity under Section 1983 unless (1) the 23 official “violated a federal statutory or constitutional right, and (2) the unlawfulness of his 24 conduct was ‘clearly established at the time.’” District of Columbia v. Wesby, 583 U.S. 48, 62-63 25 (2018) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)); Harlow v. Fitzgerald, 457 U.S. 26 800, 817 (1982). To demonstrate that a right was “clearly established” requires a showing that 27 the statutory or constitutional question was “beyond debate,” such that every reasonable official 28 would understand that what he is doing is unlawful. Wesby, 583 U.S. at 63; Vos v. City of 1 Newport Beach, 892 F.3d 1024, 1035 (9th Cir. 2018). 2 This standard is “demanding” and protects “all but the plainly incompetent or those who 3 knowingly violate the law.” Wesby, 583 U.S. at 63 (citing Malley v. Briggs, 475 U.S. 335, 341 4 (1986)). “[A] court typically should identify a case where an officer acting under similar 5 circumstances as [the defendant] was held to have violated the constitutional right at issue.” S.B 6 v. County of San Diego, 864 F.3d 1010, 1015 (9th Cir. 2017)). “Even when no case is ‘directly 7 on point,’ courts may compare relevant factors to determine whether every reasonable officer 8 should have known the conduct in question was unlawful.” Anderson v. Virga, 2018 WL 9 1556806, *2 (E.D. Cal. Mar. 30, 2018) (citing Isayeva v. Sacramento Sheriff's Dep’t, 872 F.3d 10 938, 946-47 (9th Cir. 2017). The plaintiff bears the burden of establishing that the right alleged 11 was clearly established. Moran v. Washington, 47 F.3d 839, 844 (9th Cir. 1998). 12 Here, Defendants argue that even if they violated Plaintiff’s due process rights by affixing 13 the escape determination to Plaintiff’s central file, dismissal of Plaintiff’s TAC is warranted 14 because during the relevant time, it was not clearly established that an inmate was entitled to due 15 process before prison officials could affix an escape risk determinant to the inmate’s central file. 16 Plaintiff does not address this argument in his briefing on the Motion to Dismiss. For reasons set 17 forth below, the Court agrees with Defendants that they are entitled to qualified immunity. 18 A government official is entitled to qualified immunity under Section 1983 unless (1) the 19 official “violated a federal statutory or constitutional right, and (2) the unlawfulness of his 20 conduct was ‘clearly established at the time.’” District of Columbia v. Wesby, 583 U.S. 48, 62-63 21 (2018) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)); Harlow v. Fitzgerald, 457 U.S. 22 800, 817 (1982). To demonstrate that a right was “clearly established” requires a showing that 23 the statutory or constitutional question was “beyond debate,” such that every reasonable official 24 would understand that what he is doing is unlawful. Wesby, 583 U.S. at 63; Vos v. City of 25 Newport Beach, 892 F.3d 1024, 1035 (9th Cir. 2018). 26 In his Opposition to the Motion to Dismiss, Plaintiff does not address Defendants’ 27 qualified immunity argument, much less “point to any precedent from the Supreme Court, [the 28 Ninth Circuit], or ‘a robust consensus of cases of persuasive authority” showing that his 1 entitlement to due process in the escape review process was “clearly established” at the relevant 2 time period. See Carley v. Aranas, 103 F.4th 653, 661 (9th Cir. 2024). Thus, Plaintiff has failed 3 to meet his burden of disputing Defendants’ entitlement to qualified immunity. See Moran, 47 4 F.3d at 844. Nor does the Court’s own search reveal any indication that such a right was clearly 5 established at the time that would have alerted Defendants that any reasonable official in his 6 shoes would have understood that he was violating Plaintiff’s due process right by affixing 7 the escape determinate on Plaintiff’s C-File. Defendants could have believed, mistakenly, but 8 reasonably, that the escape charge from the county jail was proper. Accordingly, the Court 9 finds that Defendants are entitled to dismissal on the additional grounds of qualified immunity. 10 C. Whether Leave to Amend Should be Granted 11 If a motion to dismiss is granted, “[the] district court should grant leave to amend even if 12 no request to amend the pleading was made . . .” Henry A. v. Willden, 678 F.3d 991, 1005 (9th 13 Cir. 2012). However, leave to amend need not be granted if amendment would be futile or if the 14 plaintiff has failed to cure deficiencies despite repeated opportunities. See Mueller v. Aulker, 700 15 F.3d 1180, 1191 (9th Cir. 2012); Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 16 2010). 17 Here, Plaintiff has already been afforded three opportunities to amend his complaint. (See 18 Doc. Nos. 12, 28, 38). Plaintiff has articulated the facts surrounding his alleged due process 19 violation in ample detail and the Court can discern no set of additional facts that could be alleged 20 to cure the deficiencies identified here. As the analysis above reflects, a change to Plaintiff’s 21 classification status, or denial of family visits and other prison programs does not trigger due 22 process protections under either Sandin or state law. Moreover, because the Court finds that 23 Defendants are entitled to qualified immunity, there are no additional facts Plaintiff could plead 24 that could cure this deficiency. See Reed v. Nevada, 2021 WL 3722879, at *4 (D. Nev. Aug. 23, 25 2021) (finding leave to amend futile where defendants entitled to qualified immunity). Thus, the 26 Court finds that granting Plaintiff further leave to amend would be futile. 27 //// 28 //// 1 ACCORDINGLY, it is ORDERED: 2 1. Defendants’ Motion for Judicial Notice (Doc. No. 55-2) is GRANTED and the 3 Court takes judicial notice of the following: California Code of Regulations, title 15, 4 section 3177 (2015), Family Visiting (Overnight); California Code of Regulations, title 5 15, section 3375.2 (2015), Administrative Determinants; CDCR 2015 DOM, section 6 54020.33, Family Visiting General Information; CDCR 2015 DOM, section 54020.33.1, 7 Inmate Family Visiting Eligibility; CDCR DOM, section 54020.33.2, Inmate Applications 8 for Family Visits and CDCR DOM, section 61010.11.5, Placement. 9 2. Defendants’ Motion to Dismiss (Doc. No. 55) is GRANTED and this case is 10 dismissed with prejudice. 11 3. The Clerk shall enter judgment, terminate any pending motions as moot, and close 12 this case. 13 Dated: _ September 30, 2024 oe Uh. Sareh Zackte 15 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE

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