Scally v. Velasquez

• Court: District Court, S.D. California
• Decided: January 9, 2023
• Docket: 3:22-cv-00140
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TONY EUGENE SCALLY, Case No. 3:22-CV-140 JLS (MDD) CDCR #G-6776, 12

Plaintiff, 13 ORDER DISMISSING CIVIL vs. ACTION PURSUANT TO 28 U.S.C. 14 § 1915(e)(2)(ii) AND 28 U.S.C. Lt. J. VELASQUEZ, Lt. R. SOLORIO, 15 § 1915A(b)(1) OFFICER V. FREEMAN,

16 Defendants. (ECF No. 14) 17 18 19 20 On January 31, 2022, Tony Eugene Scally (“Plaintiff” or “Scally”), currently 21 incarcerated at Salinas Valley State Prison (“SVSP”) and proceeding pro se, filed a civil 22 rights Complaint pursuant to 42 U.S.C. § 1983. See Complaint (“Compl.,” ECF No. 1). 23 Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a), and thus the 24 Court dismissed the action without prejudice. See ECF No. 3. Scally was given forty-five 25 days to either pre-pay the $402 filing fee or file a properly supported Motion to Proceed In 26 Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). Id. On February 16, 2022, 27 Scally filed an IFP motion and on March 4, 2022, he filed a Prisoner Trust Account 28 Statement. See ECF No. 4; ECF No. 5. 1 On May 20, 2022, the Court granted Scally’s IFP motion and dismissed his 2 Complaint for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(ii) and 28 U.S.C. 3 § 1915A(b)(1). ECF No. 7. Scally was given forty-five days to file an Amended Complaint 4 which cured the deficiencies of pleading noted in the Order. ECF No. 7. 5 Scally filed an Amended Complaint (“FAC”) on June 2, 2022, ECF No. 8, and on 6 June 13, 2022, he filed a Motion for Appointment of Counsel. ECF No. 9. The Court 7 again dismissed the action on August 11, 2022, pursuant 28 U.S.C. § 1915(e)(2)(ii) and 28 8 U.S.C. § 1915A(b)(1), and denied Scally’s Motion for Appointment of Counsel. ECF No. 9 13. He was given forty-five days within which to file an amended complaint. Id. Scally 10 filed a Second Amended Complaint (“SAC,” ECF No. 14) on September 19, 2022. 11 SCREENING PURSUANT TO 28 U.S.C. § 1915A(b) 12 I. Standard of Review 13 As with his two prior complaints, 28 U.S.C. § 1915(e)(2)(B)(i) and § 1915A(b) 14 require the Court to conduct a pre-answer screening of his SAC because he is a prisoner. 15 Under these statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any 16 portion of it, which is frivolous, malicious, fails to state a claim, or seeks damages from 17 defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) 18 (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 19 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). 20 Federal Rule of Civil Procedure 12(b)(6) sets “[t]he standard for determining 21 whether a plaintiff has failed to state a claim upon which relief can be granted under 22 § 1915(e)(2)(B)(ii).” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); see also 23 Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (noting that screening pursuant to 24 § 1915A “incorporates the familiar standard applied in the context of failure to state a claim 25 under Federal Rule of Civil Procedure 12(b)(6)”). Rule 12(b)(6) requires that a complaint 26 “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible 27 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks 28 omitted); Wilhelm, 680 F.3d at 1121. Detailed factual allegations are not required, but 1 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 2 statements, do not suffice.” Iqbal, 556 U.S. at 678. The “mere possibility of misconduct” 3 or “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 4 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th 5 Cir. 2009). 6 II. 42 U.S.C. § 1983 7 “Section 1983 creates a private right of action against individuals who, acting under 8 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 9 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive 10 rights, but merely provides a method for vindicating federal rights elsewhere conferred.” 11 Graham v. Connor, 490 U.S. 386, 393‒94 (1989) (internal quotation marks and citation 12 omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a 13 right secured by the Constitution and laws of the United States, and (2) that the deprivation 14 was committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 15 698 F.3d 1128, 1138 (9th Cir. 2012). 16 III. Plaintiff’s Factual Allegations 17 The allegations in Scally’s SAC are essentially the same as those in his original 18 Complaint and his FAC. He alleges that on August 11, 2021, he was involved in mutual 19 combat with another inmate, Shareef. SAC at 3. The fight was broken up by corrections 20 officers, who Scally alleges searched the area and found no weapons. Id. at 3. Shareef was 21 medically evaluated after the fight and puncture wounds were found “on his lower left back 22 and left hand areas.” Id. at 8. A second search of the area where the fight occurred was 23 then conducted and an inmate manufactured weapon was discovered by Defendant 24 Freeman, which Scally alleges “was from 2012.” Id. at 3. Scally claims that Defendant 25 Velasquez “knowingly withheld the truth and failed to place in his report that I was never 26 in possession of any weapon.” Id. at 4. He also claims Defendants failed to take pictures 27 of Shareef’s wounds and failed to conduct DNA analysis on the weapon that was found 28 following the altercation. Id. at 3–5. 1 IV. Analysis 2 Scally contends the Defendants retaliated against him for a settlement he obtained 3 against another correctional officer, in violation of his First Amendment rights, by failing 4 to properly investigate the altercation between Scally and Shareef and by placing false 5 information into the RVR. Id. at 4. He also contends these actions by Defendants violated 6 his Fourteenth Amendment due process rights. Id. at 3. Further, Scally alleges Velasquez 7 and Solario defamed him by falsely claiming he stabbed Shareef with a weapon. Id. at 5. 8 1. First Amendment 9 Scally alleges his First Amendment rights were violated in two ways. First, he 10 claims he was retaliated against by the defendants. Id. at 4. Second, he claims he is a 11 victim of defamation. Id. at 5. 12 a. Retaliation 13 Scally claims Solorio retaliated against him by failing to properly investigate the 14 circumstances of the altercation between Scally and Shareef, failing to present any 15 witnesses who testified that Scally was armed with a weapon, and failing to take 16 photographs of Shareef’s wounds. Id. at 4. He claims Velasquez retaliated against him by 17 failing to report that he did not have a weapon during the altercation with Shareef and 18 failing to tell Solorio that he did not possess a weapon. Id. He alleges Freeman retaliated 19 against him when he presented a photograph of a weapon which was dated 2012 as proof 20 of Scally’s possession of a weapon, failing to take photographs of Shareef’s wounds, and 21 failing to conduct DNA testing on the weapon that was found in the day room. Id. He also 22 claims Solomon retaliated against him when she relied on the 2012 photograph of a weapon 23 to find him guilty of the RVR even though Shareef testified Scally did not stab him and 24 Velasquez testified Scally did not have a weapon during the altercation. Id. 25 Scally has not stated a retaliation claim against any defendant because he has not 26 plausibly alleged the defendants acted because of Scally’s protected conduct or that their 27 actions “did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 28 408 F.3d 559, 567–68 (9th Cir. 2005). “Within the prison context, a viable claim of First 1 Amendment retaliation entails five basic elements: (1) an assertion that a state actor took 2 some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, 3 and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and 4 (5) the action did not reasonably advance a legitimate correctional goal.” Id. The 5 Defendants’ failure to take pictures of Shareef’s wound, present witnesses who actually 6 saw Scally with a weapon, and conduct DNA testing on the weapon appears to be a result 7 of their reasonable conclusion that Scally had used the weapon found in the dayroom 8 shortly after the fight to stab Shareef because puncture wounds were found on Shareef’s 9 lower back and left hand during the medical evaluation conducted after the fight—not 10 because of Scally’s lawsuit against a correctional officer thirteen years prior. See ECF No. 11 8-1 at 3. Further, although the evidence placard identifying the weapon is dated August 12 11, 2012, the date of the incident listed on the photo log, the RVR, and Scally’s Complaint 13 is August 11, 2021, indicating that Defendant Freeman simply transposed the last two 14 numbers of the date on the evidence placard. See Compl. at 12–13. Indeed, Solomon 15 acknowledged this typographical error in the “findings” section of the Supplemental RVR 16 Scally has attached to his SAC. See SAC at 11. These allegations do not show that any of 17 Defendants’ actions were taken because of Scally’s successful prior lawsuit against a 18 correctional officer or that they did not “reasonably advance [the] legitimate correctional 19 goal” of pursuing disciplinary action against inmates who engage in combative activity 20 while armed. Accordingly, the Court concludes Scally has failed to state a plausible 21 retaliation claim against any Defendant. 22 b. Defamation 23 Scally also has not stated a plausible defamation claim because he has not shown 24 Defendants’ actions or statements resulted in a denial of a constitutionally protected right. 25 A Plaintiff can state a defamation claim under § 1983 “if a government official’s act of 26 defamation results in a plaintiff being deprived of a previously held constitutionally 27 protected right . . . .” Gowdy v. Cruz, No. 1:22-cv-00202-EPG-PC, 2022 WL 2954565, at 28 *3 (E.D. Cal. July 26, 2002). “To state a claim for § 1983 defamation, a plaintiff must 1 demonstrate (1) that he was stigmatized by a defamatory statement, and (2) that, as a result 2 of the defamatory statement, he was denied of a federally protected interest without due 3 process of law.” Id. (citing Hart v. Parks, 450 F.3d 1059, 1070 (9th Cir. 2006)). Further, 4 a plaintiff must “show that the injury to his reputation was inflicted in connection with the 5 deprivation of a federally protected right,” or that “the injury to his reputation caused the 6 denial of a federally protected right.” Id. (quoting Hart, 450 F.3d at 1050). 7 Scally alleges the defendants have defamed him by falsely “claiming that [he] 8 battered inmate Shareef with a weapon” and “any claim without [an] eyewitness account 9 is defamatory.” SAC at 5. He claims his family members “no longer want to have a 10 relationship with [him] because they think [he] stabbed Mr. Shareef.” Id. However, there 11 is no constitutionally protected right to be free from false accusations or false reports by 12 prison officials. See Solomon v. Meyer, No. 11cv02827-JST (PR), 2014 WL 294576, at *2 13 (N.D. Cal. Jan. 27, 2014) (“[T]here is no due process right to be free from false disciplinary 14 charges.”); Johnson v. Felker, No. 12cv02719-GEB KJN P, 2013 WL 6243280, at *6 (E.D. 15 Cal. Dec. 3, 2013) (“Prisoners have no constitutionally guaranteed right to be free from 16 false accusations of misconduct, so the mere falsification of a [rules violation] report does 17 not give rise to a claim under § 1983.”); Muhammad v. Rubia, No. 08cv3209-JSW (PR), 18 2010 WL 1260425, at *3 (N.D. Cal. Mar. 29, 2010), aff’d, 453 Fed. App’x 751 (9th Cir. 19 2011) (“As long as a prisoner is afforded procedural due process in the disciplinary hearing, 20 allegations of a fabricated charge fail to state a claim under § 1983.”). Therefore, Scally 21 has not plausibly alleged a defamation claim against defendants because he has not shown 22 any “injury to his reputation was inflicted in connection with the deprivation of a federally 23 protected right,” or that “the injury to his reputation caused the denial of a federally 24 protected right.” Gowdy, 2022 WL 2954565, at *3 (E.D. Cal. July 26, 2002) (quoting Hart, 25 450 F.3d at 1050). 26 / / / 27 / / / 28 / / / 1 2. Fourteenth Amendment 2 a. Due Process 3 Scally alleges Solario, Velasquez, and Freeman deprived him of a fair investigation 4 of the stabbing incident, and thereby violated his due process rights, by failing to conduct 5 DNA testing on the weapon found in the day room and failing to take photographs of 6 Shareef’s wounds. SAC at 3. Scally has not stated a plausible § 1983 claim, however, 7 because he has not shown the violation of a liberty interest protected by the Fourteenth 8 Amendment or that he did not receive the process to which he was entitled. The Fourteenth 9 Amendment’s due process guarantee “appl[ies] only to the deprivation of interests 10 encompassed by the . . . Amendment’s protection of liberty and property.” Bd. of Regents 11 v. Roth, 408 U.S. 564, 569 (1972). “To state a procedural due process claim, [a plaintiff] 12 must allege ‘(1) a liberty or property interest protected by the Constitution; (2) a 13 deprivation of the interest by the government; (and) (3) lack of process.’” Wright v. 14 Riveland, 219 F.3d 905, 913 (9th Cir. 2000) (quoting Portman v. Cnty. of Santa Clara, 995 15 F.2d 898, 904 (9th Cir. 1993)). A protected liberty interest arises where a sentence is 16 exceeded in “an unexpected manner” or where an inmate is subject to restrictions that 17 impose “atypical and significant hardship on the inmate in relation to the ordinary incidents 18 of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). 19 Even if Scally can show the loss of credits imposed an “atypical and significant 20 hardship” on him, Sandin, 515 U.S. at 484, he would also have to establish he was deprived 21 of the due process rights afforded prisoners who are charged with disciplinary violations. 22 See Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003) (citing Wolff v. McDonnell, 23 418 U.S. 539, 557, 564–71 (1974)). Those are: (1) 24-hour advanced written notice of the 24 charges, (2) a written statement from the factfinder which identifies the evidence relied on 25 and the reasons for the action taken, (3) an opportunity “to call witnesses and present 26 documentary evidence in his defense when permitting him to do so will not be unduly 27 hazardous to institutional safety or correctional goals,” (4) assistance at the hearing if he is 28 illiterate or the matter is complex, and (5) a “sufficiently impartial” factfinder. Wolff, 418 1 U.S. at 564–71. Here, Scally has not plausibly alleged he did not receive the first four 2 Wolff rights. In fact, Scally has attached to his SAC a copy of the Supplemental RVR 3 which shows Scally was provided with notice of the charges more than 24 hours before the 4 hearing, acknowledged he had received all of the reports associated with the violation, was 5 assigned an Investigative Employee, Officer K. Kortsen, for his case, and that Kortsen 6 questioned Shareef, Velasquez, and Freeman on his behalf at the hearing. See SAC at 10– 7 11. 8 As to the fifth Wolff right, Scally alleges Solomon violated his due process rights by 9 finding him guilty at the RVR hearing even though the photograph of the weapon was 10 dated 2012, Shareef testified Scally did not stab him, and Velasquez testified that Scally 11 did not have a weapon during the incident. SAC at 3. As the Court explained to Scally in 12 its previous dismissal Order, the hearing officer reasonably relied on Shareef’s medical 13 evaluation, which showed Shareef had been stabbed, as circumstantial evidence of Scally’s 14 possession of a weapon. See SAC at 11. She also noted that there was a typographical 15 error on the photograph of the weapon. Id. Scally has failed to show that Solomon was 16 not an impartial fact finder. See Wolff, 418 U.S. at 564–71. Accordingly, he has not stated 17 a § 1983 claim for which relief can be granted. 18 To the extent Scally alleges he lost custody credits, a protected liberty interest could 19 arise from that loss. Wolff, 418 U.S. at 557. But his due process claim would be barred 20 unless and until he can demonstrate that the loss of credits has been invalidated or reversed. 21 See Heck v. Humphrey, 512 U.S. 477, 480-82 (1994) (holding that where success on a 22 prisoner’s § 1983 action would necessarily impact the validity of a conviction or duration 23 of a sentence the prisoner must first invalidate the underlying conviction or sentence); see 24 also Edwards v. Balisok, 520 U.S. 641, 643-47 (1997) (applying Heck’s favorable 25 termination requirement to a prisoner’s § 1983 action alleging deprivation of good time 26 custody credits). 27 / / / 28 / / / 1 b. Racial Discrimination 2 Scally also claims he “was denied evidence that all other inmates are given regarding 3 RVR’s,” which was the result of “racial discrimination.” SAC at 5. As the Court has 4 explained, the Equal Protection Clause “is essentially a direction that all persons similarly 5 situated should be treated alike.” See City of Cleburne, Tex. v. Cleburne Living Ctr., 473 6 U.S. 432, 439 (1985); see also Vacco v. Quill, 521 U.S. 793, 799, (1997) (citing Plyler v. 7 Doe, 457 U.S. 202, 216 (1982); Tigner v. Texas, 310 U.S. 141, 147 (1940); Fraley v. 8 Bureau of Prisons, 1 F.3d 924, 926 (9th Cir. 1993) (per curiam). To state an equal 9 protection claim Plaintiff must set forth facts which plausibly allege Defendants 10 intentionally discriminated against him based on his membership in a protected class. 11 Hartmann v. California Dep’t of Corr. & Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013); 12 Maynard v. City of San Jose, 37 F.3d 1396, 1404 (9th Cir. 1994) (“Intentional 13 discrimination means that a defendant acted at least in part because of a plaintiff’s protected 14 status.”). 15 Scally has not alleged any facts which show he is a member of a protected class. 16 United States v. Whitlock, 639 F.3d 935, 941 (9th Cir. 2011) (“[N]either prisoners nor 17 ‘persons convicted of crimes’ constitute a suspect class for equal protection purposes”). 18 Nor has he shown that Defendants intentionally treated him differently than similarly 19 situated individuals. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); Engquist 20 v. Or. Dep’t of Agric., 553 U.S. 591, 601-02 (2008) (“[W]hen it appears that an individual 21 is being singled out by the government, the specter of arbitrary classification is fairly 22 raised, and the Equal Protection Clause requires a ‘rational basis for the difference in 23 treatment.’” (quoting Olech, 528 U.S. at 564)). Scally was not similarly situated to Shareef. 24 After the altercation, Shareef was found to have puncture wounds and an inmate 25 manufactured deadly weapon was later found in the area of the fight. SAC at 8. Thus, 26 while both inmates were fighting, only Scally appears to have used a weapon. This 27 provides a rational basis for giving Scally, and not Shareef, an RVR. Accordingly, the 28 SAC fails to state a plausible claim for denial of equal protection. 1 ||V. Leave to Amend 2 Because Scally has been provided a short and plain statement of his pleading 3 || deficiencies, as well as an opportunity to amend those claims against all named Defendants 4 ||to no avail, the Court finds granting further leave to amend would be futile. See Gonzalez 5 ||v. Planned Parenthood, 759, F.3d 1112, 1116 (9th Cir. 2014) (‘Futility of amendment 6 || can, by itself, justify the denial of ... leave to amend.’” (quoting Bonin v. Calderon, 59 7 || F.3d 815, 845 (9th Cir. 1995))); Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 8 || 1007 (9th Cir. 2009) (“[W]here the plaintiff has previously been granted leave to amend 9 has subsequently failed to add the requisite particularity to its claims, [t]he district 10 |/court’s discretion to deny leave to amend is particularly broad.” (internal quotation marks 11 || omitted) (second alteration in original)). 12 Conclusion and Order 13 For the reasons explained, the Court: 14 1. DISMISSES this civil action without further leave to amend for failure to state a 15 |}clatm upon which § 1983 relief can be granted and as frivolous pursuant to 28 U.S.C. 16 1915(e)(2)(B) and § 1915A(b); 17 2. CERTIFIES that an IFP appeal would not be taken in good faith pursuant to 28 18 U.S.C. § 1915(a)(3); and 19 3. DIRECTS the Clerk of Court to enter a final judgment of dismissal and close the 20 || file. 21 IT IS SO ORDERED. 22 ||Dated: January 9, 2023 . tt f Le 23 on. Janis L. Sammartino A United States District Judge 25 26 27 28 10 ee