“Discipline by prison 5 officials in response to a wide range of misconduct falls within the expected parameters of the sentence imposed by a court of law.”
How later courts described this case
- “Discipline by prison 5 officials in response to a wide range of misconduct falls within the expected parameters of the sentence imposed by a court of law.”
- “Repeated 2 | failure to cure deficiencies by amendments previously allowed is another valid reason for a 3 || district court to deny a party leave to amend.”’
- holding that prisoners 20 subjected to discipline that implicates an interest protected by the Due Process Clause must be provided notice, a written statement of evidence and reasons, and a 21 conditional opportunity to present witnesses and evidence
- “The prison inmate has no 15 constitutionally guaranteed immunity from being falsely or wrongly accused of conduct which may result in the deprivation of a protected liberty interest.”
Written by the judges who cited it.
The opinion
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7 UNITED STATES DISTRICT COURT
8 FOR THE EASTERN DISTRICT OF CALIFORNIA
9
10 MICHAEL A. SMITH, No. 2:19-cv-0492-EFB P
11 Plaintiff,
12 v. ORDER AND FINDINGS AND
RECOMMENDATIONS
13 J. JANAM, et al.,
14 Defendants.
15
16 Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in an action
17 brought under 42 U.S.C. § 1983. After two dismissals by the court, plaintiff has filed a second
18 amended complaint, which the court must screen. ECF Nos. 12, 21, 24. Congress mandates that
19 district courts engage in a preliminary screening of cases in which prisoners seek redress from a
20 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
21 court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if
22 the complaint “is frivolous, malicious, or fails to state a claim upon which relief may be granted,”
23 or “seeks monetary relief from a defendant who is immune from such relief.” Id. § 1915A(b).
24 The court analyzed plaintiff’s first amended complaint pursuant to § 1915A as follows:
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Plaintiff alleges that, on June 13, 2018, defendant Lisa Alexander, a “CBT
26 Facilitator” at his institution of incarceration (Mule Creek State Prison), authored a
false and adverse “CDC 128B” concerning him.1 ECF No. 18 at 3. Plaintiff has
27
1 A “128B” is a “General Chrono” that “is used to document information about inmates
28 and inmate behavior. Such information may include, but is not limited to, documentation of
1 appended the form 128B to his complaint. Id. at 8. In it, Alexander wrote that
plaintiff had pestered her about how many hours he had attended “Family
2
Relations” even after she told plaintiff that she did not know, and further wrote
3 that plaintiff disrupted her class with his outburst, and required her to ask plaintiff
to stop and sit down. Id. Alexander also wrote that plaintiff said he would file an
4 inmate grievance against her, contact his lawyer, and try to get her fired. Id.
5 Plaintiff alleges that Alexander authored the false chrono under threat from
defendant Benjamin Gibney, a correctional counselor, that he would fire her if she
6
did not do so. Id. at 4. Plaintiff alleges that Alexander tried to retract the chrono,
7 but she was “threatened with termination” and thus could not do so. Id. at 3.
8 Plaintiff challenged the 128B through an inmate appeal. Id. at 4. He
alleges that, in violation of due process, Gibney was assigned to review the appeal
9 even though it contained allegations against him. Id. Gibney denied the appeal.
Id.
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11 Plaintiff wrote to defendant Lizarraga, then warden of Mule Creek, asking
that he initiate an investigation into plaintiff’s claim that Gibney had forced
12 Alexander to author the allegedly false General Chrono. Id. at 5. Plaintiff alleges
that Lizarraga failed to order such an investigation. Id. As a result, the chrono
13 remained in plaintiff’s prison file, where it was reviewed by the California Board
of Parole Hearings, causing them to deny plaintiff parole. Id. at 3-5.
14
15 Plaintiff claims that defendants’ conduct violated his rights under the
Eighth Amendment and the Fourteenth Amendment’s Due Process Clause. Id. at
16 3-5. The claims are not cognizable for the reasons that follow.2
17 Plaintiff’s complaint does not contain facts making out a claim under the
Eighth Amendment. The Eighth Amendment protects prisoners from inhumane
18
methods of punishment and from inhumane conditions of confinement. Morgan v.
19 Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Extreme deprivations are
required to make out a conditions-of-confinement claim, and only those
20 deprivations denying the minimal civilized measure of life’s necessities are
sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v.
21 McMillian, 503 U.S. 1, 9 (1992). “Prison officials have a duty to ensure that
prisoners are provided adequate shelter, food, clothing, sanitation, medical care,
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23 enemies, records of disciplinary or classification matters, pay reductions or inability to
satisfactorily perform a job, refusal to comply with grooming standards, removal from a program,
24 records of parole or social service matters.” Cal. Code Regs. tit. 15, § 3000.
25 2 Plaintiff also claims that Alexander “falsifi[ed] documents under color of Authority
26 (perjury)” and committed “false imprisonment.” Id. at 3. These allegations appear to be an
attempt to state claims under California law. Because the court finds no cognizable federal
27 claims have been stated, the court declines to exercise jurisdiction over these supplemental claims
at this time. 28 U.S.C. § 1367(c)(3). Should plaintiff attempt cure the deficiencies in one or more
28 of his federal claims in an amended complaint, he may include these state claims as well.
1 and personal safety.” Johnson v. Lewis, 217 F.3d 726, 731-32 (9th Cir. 2000)
(quotations and citations omitted). Even crediting all of plaintiff’s allegations, he
2
states no facts showing that he was denied the minimal civilized measure of life’s
3 necessities or subjected to inhumane punishment.
4 Plaintiff’s claim that he was deprived of due process when Gibney
reviewed his grievance also fails. While California Code of Regulations, title 15,
5 § 3084.7(d)(1)(A) provides that appeals should not generally be reviewed by a
staff person involved in the action being appealed, the violation of a state
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regulation does not, on its own, give rise liability under § 1983. Moreland v. Las
7 Vegas Metro. Police Dep’t, 159 F.3d 365, 371 (9th Cir. 1998). Moreover, as
courts in this circuit have routinely noted, there is “no general constitutional right
8 to an adequate or fair grievance system.” Graham v. Baughman, No. 1:03-cv-
06353-AWI-GSA-PC, 2010 U.S. Dist. LEXIS 44253, at *28-29 (E.D. Cal. May 6,
9 2010); see also Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); Massey v.
Helman, 259 F.3d 641, 647 (7th Cir. 2001); Sylvester v. Alameido, No. 2:10-cv-
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2380 KJN, 2012 U.S. Dist. LEXIS 130345, at *44-46 (E.D. Cal. Sep. 11, 2012)
11 (collecting cases).
12 Lastly, plaintiff’s claims that defendants’ actions (or failures to act) caused
the false chrono to remain in his file (and, consequently, the parole board to deny
13 him parole) do not state a claim for denial of due process. The filing of false
disciplinary charges against a prisoner does not, by itself, violate the Constitution.
14
Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986) (“The prison inmate has no
15 constitutionally guaranteed immunity from being falsely or wrongly accused of
conduct which may result in the deprivation of a protected liberty interest.”); Leon
16 v. Vasquez, No. 1:11-cv-00601-LJO-GBC (PC), 2011 U.S. Dist. LEXIS 106083, at
*4-5 (E.D. Cal. Sep. 16, 2011) (“[A]s long as a prisoner receives proper procedural
17 due process, a claim based on the falsity of disciplinary charges, standing alone,
does not state a constitutional claim.”). Moreover, the allegedly false chrono at
18
issue in this case did not even rise to the level of a disciplinary charge and carried
19 no disciplinary consequences. Accordingly, the procedural requirements of Wolff
v. McDonnell did not apply. 418 U.S. 539, 563-66 (1974) (holding that prisoners
20 subjected to discipline that implicates an interest protected by the Due Process
Clause must be provided notice, a written statement of evidence and reasons, and a
21 conditional opportunity to present witnesses and evidence).
22
In order to determine what, if any, process was due to plaintiff with regard
23 to the placement and retention of the chrono in his prison file, the court looks to
Sandin v. Conner, 515 U.S. 472 (1995). There, the Supreme Court noted that
24 “[t]he Due Process Clause standing alone confers [to inmates] no liberty interest in
freedom from state action taken within the sentence imposed.” Id. at 480. States
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may create liberty interests that are protected by the Due Process Clause, “[b]ut
26 these interests will be generally limited to freedom from restraint which, while not
exceeding the sentence in such an unexpected manner as to give rise to protection
27 by the Due Process Clause of its own force, nonetheless imposes atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison
28 life.” Id. at 483-84 (internal citations omitted).
1 The only hardship plaintiff identifies from the inclusion of the chrono in
his file is its impact on the parole board. This potential hardship was not atypical
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and significant, however; instead, chronos documenting inmate interactions with
3 staff are commonplace. Perrotte v. Salazar, No. ED CV 08-00123-JHN (VBK),
2011 U.S. Dist. LEXIS 72555, at *24-25 (C.D. Cal. Mar. 28, 2011) (informational
4 chronos were “commonplace in prisoner files” and thus did not present an atypical
and significant hardship). See Sandin, 515 U.S. at 485 (“Discipline by prison
5 officials in response to a wide range of misconduct falls within the expected
parameters of the sentence imposed by a court of law.”).
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7 In fact, the Court in Sandin explicitly rejected an inmate’s due process
claim that a record of misconduct in his file would impact his parole chances,
8 because the parole decision rested “on a myriad of considerations” and the inmate
was entitled to procedural protections at the parole hearing to discuss the
9 misconduct record. Id. at 487. The same is true here. “As in Sandin, nothing in
California’s Code requires the Parole Board to deny parole when presented with
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unfavorable . . . informational chronos or to grant parole in the absence of such
11 documents.” Perrotte, 2011 U.S. Dist. LEXIS 72555, at *25-26. And California
law provides inmates the right “to ask and answer questions, and to speak on his or
12 her own behalf” at parole board hearings. Cal. Pen. Code § 3041.5(a)(2).
13 As the complaint does not state facts showing plaintiff’s entitlement to, and
defendants’ denial of, procedural protections surrounding the placement of the
14
general chrono in his file, nor does it state facts showing that the inclusion of the
15 chrono was inhumane, plaintiff’s claims under the Eighth and Fourteenth
Amendments fail.
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17 ECF No. 21 at 2-6.
18 The second amended complaint does not materially differ from the first amended
19 complaint. It does, however, attempt to plead an equal protection claim based upon the same
20 allegations. Those allegations fail to state a cognizable claim. They fail to articulate facts
21 showing disparate treatment and they do not show that any defendant acted with an intent or
22 purpose to discriminate against plaintiff because of his membership in a protected class. See
23 Thornton v. City of St. Helens, 425 F.3d 1158, 1166-67 (9th Cir. 2005). Moreover, there are no
24 new allegations curing the deficiencies the court has already identified. Thus, the second
25 amended complaint must be dismissed for failure to state a claim upon which relief could be
26 granted.
27 The court has already afforded plaintiff two chances to amend his complaint, yet he is no
28 closer to stating a cognizable claim. Consequently, it declines to offer him further opportunity to
wOASe 2 □□□ □□□ OUING IVI MUO eI eerie PAY VI
1 |} amend. See McGlinchy v. Shell Chemical Co., 845 F.2d 802, 809-10 (9th Cir. 1988) (“Repeated
2 | failure to cure deficiencies by amendments previously allowed is another valid reason for a
3 || district court to deny a party leave to amend.”’).
4 Accordingly, it is ORDERED that the Clerk of Court shall randomly assign a United
5 || States District Judge to this case.
6 Further, it is RECOMMENDED that plaintiffs second amended complaint (ECF No. 24)
7 | be DISMISSED without leave to amend for failure to state a cognizable claim and the Clerk be
8 || directed to close the case.
9 These findings and recommendations are submitted to the United States District Judge
10 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days
11 | after being served with these findings and recommendations, any party may file written
12 || objections with the court and serve a copy on all parties. Such a document should be captioned
13 | “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections
14 | within the specified time may waive the right to appeal the District Court’s order. Turner v.
15 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991).
16 || Dated: September 22, 2020.
tid, PDEA
EDMUND F. BRENNAN
18 UNITED STATES MAGISTRATE JUDGE
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