(PC) Owens v. Banuelos

Opinion

THEON OWENS, No. 2:19-CV-01683-MCE-DMC-P Plaintiff, v. FINDINGS AND RECOMMENDATIONS D. BANUELOS, et al., Defendants. Plaintiff, who is proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the Court is Defendants’ motion to dismiss Plaintiff’s second amended complaint (SAC), ECF No. 68. Plaintiff has filed an opposition, ECF No. 73. Defendants have filed a reply to Plaintiff’s opposition, ECF No. 76. In considering a motion to dismiss, the Court must accept all allegations of material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The Court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). In addition, pro se pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972). Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief” in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must contain more than “a formulaic recitation of the elements of a cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the speculative level.” Id. at 555-56. The complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility for entitlement to relief.” Id. (quoting Twombly, 550 U.S. at 557). In deciding a Rule 12(b)(6) motion, the Court generally may not consider materials outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The Court may, however, consider: (1) documents whose contents are alleged in or attached to the complaint and whose authenticity no party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question, and upon which the complaint necessarily relies, but which are not attached to the complaint, see Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). / / / / / / Finally, leave to amend must be granted “[u]nless it is absolutely clear that no amendment can cure the defects.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc). Plaintiff names the following as defendants: (1) D. Banuelos, correctional officer at California State Prison-Sacramento (CSP-SAC); (2) R. Jimenez, correctional officer at CSP- SAC; (3) M. Vang, correctional officer at CSP-SAC; (4) R. Haynie, second level reviewer at CSP-SAC; (5) J. Peterson, chief disciplinary officer at CSP-SAC; and (6) J.A. Baker, senior hearing officer at CSP-SAC. See ECF No. 63, pg. 3-4, 11-12. Plaintiff claims that on November 3, 2015, Defendants Banuelos, Jimenez, and Vang committed battery upon Plaintiff and violated Plaintiff’s Eighth Amendment rights when Defendant Banuelos allegedly reached through the food port in Plaintiff’s cell, grabbed Plaintiff’s handcuffs, and pulled Plaintiff’s entire left arm and hand completely through the port, slamming Plaintiff’s whole body into the cell door. See id. at 6. Defendants Vang and Jimenez allegedly pepper-sprayed Plaintiff. See id. at 6-7. Defendant Jimenez grabbed Plaintiff’s left hand bending it at the wrist, and Defendant Jimenez further harmed Plaintiff “by gouging his fingers into [Plaintiff’s] left arm and dragging them down [Plaintiff’s] entire left arm.” Id. at 7. Plaintiff also claims that Defendant Banuelos and Vang violated his due process rights by making a false rules violation report (RVR) against Plaintiff for assaulting a peace officer and reiterating their false claims against Plaintiff at a disciplinary hearing that took place on December 9, 2015. See id. at 8-9. According to Plaintiff, Defendant Baker violated his due process rights during the December 9, 2015, disciplinary hearing by denying Plaintiff an opportunity to call live witnesses in support of his defense and refusing to consider affidavits signed by Plaintiff’s witnesses because Plaintiff assisted his witnesses in preparation of their affidavits. See id. at 10-11. / / / / / / Additionally, Plaintiff claims that Defendant Peterson violated his due process rights on December 30, 2015, by affirming actions taken by Defendant Baker during Plaintiff’s disciplinary hearing and upholding Plaintiff’s guilty finding despite clear due process violations during Plaintiff’s December 9, 2015, disciplinary hearing. See id. at 11-12. Plaintiff also asserts a supervisory liability claim against Defendant Haynie, who, according to Plaintiff, acted as the decision-maker at the second level of review of Plaintiff’s appeal of his disciplinary conviction after he appealed the December 9, 2015, disciplinary hearing held before Defendant Baker. See id. at 17-18. Plaintiff further alleges that on November 28, 2015, Defendant Banuelos became aware of Plaintiff’s grievance against Defendants Banuelos, Jimenez, and Vang related to their purported excessive use of force on November 3, 2015, confronted Plaintiff about that grievance and told Plaintiff that he is going to suffer. See id. at 13-14. According to Plaintiff, Defendant Banuelos then violated Plaintiff’s First Amendment rights during the new June 18, 2016, disciplinary hearing on Plaintiff’s charge of assaulting a peace officer by changing his original allegation that Plaintiff attempted to grab his right hand to more serious charge that Plaintiff grabbed and pulled his hand through the food port. See id. at 14. Defendants move to dismiss Plaintiff’s Fourteenth Amendment due process claim, First Amendment retaliation claim, Plaintiff’s Bane Act claim, and his supervisor liability claim. See ECF No. 68-1. Specifically, Defendants argue: (1) Plaintiff fails to allege sufficient facts to establish a due process claim against any defendant; (2) Plaintiff fails to state a First Amendment retaliation claim against any defendant because Plaintiff has not allege a chilling of protected activity; (3) Plaintiff’s state law claim under the Bane Act should be dismissed because Plaintiff fails to allege compliance with California’s tort claims act; and (4) Plaintiff cannot sustain a claim against Defendant Haynie, who is a supervisory official, arising from the prison grievance process. Defendants do not challenge the sufficiency of Plaintiff’s Eighth Amendment excessive force claims against Banuelos, Jimenez, and Vang arising from the November 3, 2015, incident. A. Due Process Claims Defendants argue that Plaintiff does not have an actionable Fourteenth Amendment due process claim against any defendant because any procedural defects in the disciplinary hearings and reviews conducted by Defendants were corrected by the eventual grant of administrative appeal and Plaintiff’s exoneration of the charges. ECF No. 68-1 at 5-6. With respect to prison disciplinary proceedings, due process requires prison officials to provide the inmate with: (1) a written statement at least 24 hours before the disciplinary hearing that includes the charges, a description of the evidence against the inmate, and an explanation for the disciplinary action taken; (2) an opportunity to present documentary evidence and call witnesses, unless calling witnesses would interfere with institutional security; and (3) legal assistance where the charges are complex or the inmate is illiterate. See Wolff, 418 U.S. at 563-70. Due process is satisfied where these minimum requirements have been met, see Walker v. Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994), and where there is “some evidence” in the record as a whole which supports the decision of the hearing officer, see Superintendent v. Hill, 472 U.S. 445, 455 (1985). The “some evidence” standard is not particularly stringent and is satisfied where “there is any evidence in the record that could support the conclusion reached.” Id. at 455-56. However, a due process claim challenging the loss of good-time credits as a result of an adverse prison disciplinary finding is not cognizable under § 1983 and must be raised by way of habeas corpus. See Blueford v. Prunty, 108 F.3d 251, 255 (9th Cir. 1997). Defendants argue:

Here, Plaintiff alleges due process violations related to a disciplinary hearing in connection with Plaintiff’s RVR for assaulting a peace officer where Plaintiff was found guilty of the charged offense. (ECF No. 63 at 8-12.) Plaintiff’s SAC, however, makes it clear that Plaintiff’s third-level appeal of the disciplinary finding was granted, Plaintiff’s guilty charge was overturned, the RVR was ordered re-issued and reheard, and Plaintiff was subsequently exonerated of his charges. (Id. at 12 and 19.) Since Plaintiff’s administrative appeal of the disciplinary findings was granted at the Third Level of Review, thus correcting any procedural defects in the disciplinary hearing conducted by Defendant Baker and the subsequent review of the disciplinary findings by Defendants Peterson and Haynie, Plaintiff has no actionable due process claims against these Defendants, and the Court should dismiss Plaintiff’s Fourteenth Amendment due process claims against Defendants Baker and Peterson for failure to state a claim. . . .

ECF No. 68-1, pgs. 5-6. The Court agrees. As Defendants note in their brief, the rules violation report was ultimately decided in Plaintiff’s favor, thereby extinguishing any claims of due process violations arising from the disciplinary process. See Torricellas v. Poole, 954 F. Supp. 1405, 1414 (C.D. Cal. 1997) (“Because the disciplinary action was dismissed on administrative appeal and plaintiff was not subject to any discipline or loss of credits, any procedural defects in the disciplinary hearing are not compensable. It is, therefore, not necessary to analyze the process provided to plaintiff.”), aff'd, 141 F.3d 1179 (9th Cir. 1998) (unpublished); Williams v. Hampton, 2020 WL 3498170, at *7 (S.D. Cal. June 26, 2020) (finding that plaintiff’s claims of due process violations arising from his first disciplinary hearing are moot in light of the grant of a new hearing which resulted in a not guilty verdict); Brown v. Marshall, 2012 WL 12906131, *9 (E.D. Cal. Mar. 1, 2012) (“[P]laintiff’s procedural due process claims related to either his first or second disciplinary proceedings have been rendered moot by the subsequent re-issuing and re-hearing of the rules violation charge against him.”). Plaintiff’s due process claims should be dismissed with prejudice. B. Retaliation Claims Defendants argue: (1) Plaintiff does not present a viable First Amendment retaliation claim because Plaintiff does not allege a chilling effect on Plaintiff’s First Amendment activities; and (2) Plaintiff does not show that he suffered some other harm that is more than minimal because the RVR on his record was decided in Plaintiff’s favor and was not the proximate cause of the Board of Prison Terms’ decision to deny Plaintiff early release. ECF No. 68-1, pgs. 6-8. In order to state a claim under 42 U.S.C. § 1983 for retaliation, the prisoner must establish that he was retaliated against for exercising a constitutional right, and that the retaliatory action was not related to a legitimate penological purpose, such as preserving institutional security. See Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam). In meeting this standard, the prisoner must demonstrate a specific link between the alleged retaliation and the exercise of a constitutional right. See Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995); Valandingham v. Bojorquez, 866 F.2d 1135, 1138-39 (9th Cir. 1989). The prisoner must also show that the exercise of First Amendment rights was chilled, though not necessarily silenced, by the alleged retaliatory conduct. See Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000), see also Rhodes v. Robinson, 408 F.3d 559, 569 (9th Cir. 2005). Thus, the prisoner plaintiff must establish the following in order to state a claim for retaliation: (1) prison officials took adverse action against the inmate; (2) the adverse action was taken because the inmate engaged in protected conduct; (3) the adverse action chilled the inmate’s First Amendment rights; and (4) the adverse action did not serve a legitimate penological purpose. See Rhodes, 408 F.3d at 568. As to the chilling effect, the Ninth Circuit in Rhodes observed: “If Rhodes had not alleged a chilling effect, perhaps his allegations that he suffered harm would suffice, since harm that is more than minimal will almost always have a chilling effect.” Id. at n.11. By way of example, the court cited Pratt in which a retaliation claim had been decided without discussing chilling. See id. This citation is somewhat confusing in that the court in Pratt had no reason to discuss chilling because it concluded that the plaintiff could not prove the absence of legitimate penological interests. See Pratt, 65 F.3d at 808-09. Nonetheless, while the court has clearly stated that one of the “basic elements” of a First Amendment retaliation claim is that the adverse action “chilled the inmates exercise of his First Amendment rights,” id. at 567-68, see also Resnick, 213 F.3d at 449, the comment in Rhodes at footnote 11 suggests that adverse action which is more than minimal satisfies this element. While the Court does not find Defendants’ first argument concerning chilling to be persuasive, Defendants’ second argument is dispositive. Plaintiff claims that the RVR was retaliatory. However, the RVR was re-issued, re-heard, and ultimately resulted in a decision in Plaintiff’s favor. In essence, any retaliatory adverse action which could have arisen from issuance and re-issuance of the RVR was nullified by the ultimate decision on the RVR and any materials associated with it which might have been in Plaintiff’s file would not have been factored into the decision to deny parole. Plaintiff has thus failed to allege an adverse action which is more than minimal. Plaintiff’s retaliation claims should be dismissed with prejudice. C. Bane Act Claims Defendants characterize Plaintiff’s fourth claim for relief as state law claims under the Bane Act and argue that the claim should be dismissed with prejudice because Plaintiff has not alleged compliance with California’s Government Claims Act. ECF No. 68-1, pgs. 8-9. The Court agrees. The Court had previously dismissed Plaintiff’s state law claim because he failed to allege compliance with the Government Claims Act. See ECF No. 62. Plaintiff was granted leave to amend to allege, if he can, compliance. Plaintiff’s second amended complaint continues to fail to allege compliance. Plaintiff’s state law claims should be dismissed with prejudice. See State v. Superior Court (Bodde), 32 Cal. 4th 1234, 1240, 1237 (2004) (for claims against the State, timely presentation of a claim under the Government Claims Act is an element of the cause of action and must be pled in the complaint); see also Cal. Gov’t Code § 900.6 (defining “State” as “the State and any office, officer, department, division, bureau, board, commission or agency of the State claims against which are paid by warrants drawn by the Controller”). D. Supervisor Liability Defendants argue that Plaintiff’s supervisor liability claim against Defendant Haynie fails because Plaintiff does not allege facts showing Defendant Haynie’s person involvement in a constitutional violation. ECF No. 68-1, pgs. 9-10. Supervisory personnel are generally not liable under § 1983 for the actions of their employees. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (holding that there is no respondeat superior liability under § 1983). A supervisor is only liable for the constitutional violations of subordinates if the supervisor participated in or directed the violations. See id. The Supreme Court has rejected the notion that a supervisory defendant can be liable based on knowledge and acquiescence in a subordinate’s unconstitutional conduct because government officials, regardless of their title, can only be held liable under § 1983 for his or her own conduct and not the conduct of others. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Supervisory personnel who implement a policy so deficient that the policy itself is a repudiation of constitutional rights and the moving force behind a constitutional violation may, however, be liable even where such personnel do not overtly participate in the offensive act. See Redman v. Cnty of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc). When a defendant holds a supervisory position, the causal link between such defendant and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations concerning the involvement of supervisory personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). “[A] plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the constitution.” Iqbal, 662 U.S. at 676. The Court agrees with Defendants’ argument both because he did not plead that Defendant Haynie was directly involved with the initial depravation of due process rights—when he was found guilty of the Rules Violation Report—and because Plaintiff does not allege that Defendant Haynie was even a supervisor of Defendants Baker and Peterson. For these reasons, the Court recommends granting Defendants’ motion to dismiss Plaintiff’s supervisor liability claims against Defendant Haynie. Defendant Haynie’s involvement in reviewing and denying Plaintiff’s initial administrative appeal cannot form the basis of liability. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (upholding the district court's finding that “because inmates have no constitutional right to a prison grievance system, the actions of the prison officials in reviewing his internal appeal cannot create liability under § 1983”). Defendant Haynie should be dismissed with prejudice. / / / / / / / / / / / / / / / /// Il. CONCLUSION Based on the foregoing, the undersigned recommends as follows: 1. Defendants’ motion to dismiss, ECF No. 68, be GRANTED. 2. Plaintiff's due process claims be DISMISSED with prejudice. 3. Plaintiff's retaliation claims be DISMISSED with prejudice. 4. Plaintiffs state law claims be DISMISSED with prejudice. 5. Haynie be DISMISSED with prejudice as a defendant to this action. 6. This action proceed on the second amended complaint on Plaintiff's Eighth Amendment excessive force claims against Defendants Banuelos, Jimenez, and Vang arising from the November 3, 2015, incident and that Defendants Banuelos, Jiminez, and Vang be required to file an answer. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days after being served with these findings and recommendations, any party may file written objections with the court. Responses to objections shall be filed within 14 days after service of objections. Failure to file objections within the specified time may waive the right to appeal. See Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). Dated: February 21, 2024 Co DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 10