(PC)Myers v. Kaihe

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

10

11 CLARENCE MYERS, No. 2:20-cv-0764 AC P

12 Plaintiff,

13 v. ORDER AND FINDINGS AND

RECOMMENDATIONS

14 R. KAIHE, et al.,

15 Defendant.

16

17 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and

18 has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

19 I. Application to Proceed In Forma Pauperis

20 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C.

21 § 1915(a). ECF No. 2. Accordingly, the request to proceed in forma pauperis will be granted.

22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C.

23 §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in

24 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct

25 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and

26 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments

27 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account.

28 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time

1 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C.

2 § 1915(b)(2).

3 II. Statutory Screening of Prisoner Complaints

4 The court is required to screen complaints brought by prisoners seeking relief against a

5 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

6 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

7 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[]

8 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b).

9 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.”

10 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

11 Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal

12 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639,

13 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as

14 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a

15 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis.

16 Franklin, 745 F.2d at 1227-28 (citations omitted).

17 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the

18 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of

19 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550

20 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

21 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context

22 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman,

23 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure

24 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a

25 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the

26 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he pleading must contain

27 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally

28 ////

1 cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur

2 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)).

3 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

4 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

5 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual

6 content that allows the court to draw the reasonable inference that the defendant is liable for the

7 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this

8 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg.

9 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the

10 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor,

11 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted).

12 III. Allegations of the Complaint

13 Plaintiff brings five claims, all alleging violations of his due process rights in relation to a

14 2017 prison disciplinary proceeding at the California Medical Facility. The complaint, ECF No.

15 1, alleges as follows. On April 18, 2017, plaintiff was sitting on his bunk when officers began

16 conducting searches. Officer Kaihe entered plaintiff’s 8-man bunk area, told plaintiff to leave,

17 searched the area, and found a cell phone and other contraband that did not belong to plaintiff.

18 Officer Kaihe wrote up a Rules Violation Report (RVR) charging plaintiff with possession of the

19 phone. The RVR falsely stated that Kaihe had seen plaintiff tossing the phone between the

20 bunks, and that Officer Kaihe had a verbal exchange with plaintiff about the phone. Claim One is

21 stated against Officer Kaihe for filing a false RVR. ECF No. 1 at 3-4.

22 Plaintiff was served with the RVR a few days later by Officer Gonzalez-Colley. The copy

23 of the RVR contained no signatures, which rendered it void in plaintiff’s opinion. Officer

24 Gonzalez misstated her name, and said that she would be plaintiff’s investigating employee. She

25 never did anything to prepare plaintiff’s defense, and her representation that she was the IE

26 prevented plaintiff from preparing on his own behalf. Plaintiff gave all his pertinent documents

27 to Officer Gonzalez, but she disposed of them and later told plaintiff she could not be his IE.

28 Even though she was not acting as plaintiff’s IE, she remained in the room at the RVR hearing.

1 Claim Two asserts that these actions by Officer Gonzalez-Colley violated plaintiff’s rights. ECF

2 No. 1 at 5-6.

3 Correctional Lt. Iannone had been the supervisor of the search team on April 18, 2017.

4 He was also the staff member who classified the RVR against plaintiff as “serious” and a

5 “Division D” offense. Claim Three contends that this violated plaintiff’s due process right to an

6 unbiased decision-maker. ECF No. 1 at 7-8.

7 The RVR hearing was held on May 13, 2017. Lt. Olson was the Senior Hearing Officer.

8 The hearing was unfair in several ways: defendants were discussing the case with each other

9 when plaintiff entered the room; Officer Gonzalez did not act as plaintiff’s IE; Officer Kaihe was

10 permitted to overhear the testimony of other witnesses before he testified; Officer Kaihe was

11 permitted to remain in the hearing room after he testified; etc. Plaintiff had obtained the

12 agreement of the true owner of the contraband phone to testify on plaintiff’s behalf; Lt. Olson

13 said he would find both inmates guilty, so plaintiff was dissuaded from presenting the witness.

14 Lt. Olson’s written report of the hearing misstated the order of witnesses to cover up the fact that

15 Kaihe had the opportunity to tailor his testimony to that of other witnesses. Claim Four asserts

16 that Olson’s conduct at the hearing violated due process, and that the resulting disciplinary

17 finding was unsupported by evidence. ECF No. 1 at 9-11.

18 Plaintiff appealed the RVR, but it was wrongfully denied at the Third Level of Review by

19 defendant Dominguez, an Appeals Examiner who mixed up the RVR log numbers and confused

20 the facts of plaintiff’s incident with that of another inmate. Specifically, Dominguez

21 misidentified the contraband at issue as drug paraphernalia. Claim Five contends that the

22 handling of the appeal violated plaintiff’s due process rights. ECF No. 1 at 12-13.

23 IV. Failure to State A Claim

24 Prisoners subjected to disciplinary action are entitled to certain limited procedural

25 protections under the Due Process Clause, although they are not entitled to the full panoply of

26 rights afforded to criminal defendants. See Wolff v. McDonnell, 418 U.S. 539, 556 (1974); see

27 also United States v. Segal, 549 F.2d 1293, 1296-99 (9th Cir. 1977) (prison disciplinary

28 proceedings command the least amount of due process along the prosecution continuum). Due

1 process requires only: (1) written notice of the charges; (2) a hearing with advance notice; (3) a

2 written statement by the fact finders of the evidence relied on and the reasons for taking

3 disciplinary action; (4) the prisoner’s right to call witnesses in his defense, if doing so would not

4 be unduly hazardous to institutional safety or correctional goals; and (5) legal assistance to

5 prisoners who are illiterate or whose issues are particularly complex. Wolff, 418 U.S. at 556-71.

6 If these minimum requirements are met, procedural due process has been satisfied. The process

7 described in plaintiff’s complaint does not violate Wolff’s mandate.

8 First, Claim One’s allegations of false charges do not support a due process claim. False

9 statements by a correctional officer do not violate an inmate’s constitutional rights and cannot,

10 based on alleged falsity alone, support a claim under § 1983. See Buckley v. Gomez, 36 F. Supp.

11 2d 1216, 1222 (S.D. Cal. 1997) (prisoners have no constitutional right to be free from wrongfully

12 issued disciplinary reports), aff’d without opinion, 168 F.3d 498 (9th Cir. 1999); accord, Sprouse

13 v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989); Freeman v. Rideout, 808 F.2d 949, 951 (2nd Cir.

14 1986); Hanrahan v. Lane, 747 F.2d 1137, 1141 (7th Cir. 1984). Accordingly, the allegation that

15 Officer Kaihe made false statements in the disciplinary report fail to support any claim for relief.

16 Claim Two does not state a claim against Officer Gonzalez-Colley. Wolff does not

17 require signatures on copies of reports, or notices of name change, or the services of an

18 investigative employee. Due process requires staff assistance for inmates who are illiterate,

19 incompetent, or otherwise unable to manage the disciplinary process on their own. See Wolff,

20 418 U.S. at 570; see also Cal. Code Regs. tit. 15, § 3318(b) (providing for staff assistants to aid

21 qualifying inmates). California prison regulations also provide for investigative employees, but

22 this is not a requirement of due process. An investigative employee is responsible for gathering

23 information for a senior hearing officer or disciplinary hearing committee by interviewing

24 charged inmates, questioning all staff and inmates with relevant information, and screening

25 prospective witnesses. Cal. Code Regs. tit. 15, § 3318(a). An investigative employee is assigned

26 to assist the hearing officer or disciplinary committee, not the charged inmate. Id. Accordingly,

27 the allegations that Officer Gonzalez represented herself as plaintiff’s investigative employee but

28 failed to assist him do not state a claim for relief.

1 Claim Three does not state a claim against Lt. Iannone. He was not the decision-maker at

2 the RVR hearing and did not determine plaintiff’s guilt, so the allegations of bias do not implicate

3 due process. See Wolff, 418 U.S. at 571 (requiring impartial decision-maker at hearing).

4 Plaintiff has no due process rights related to the classification of the RVR.

5 Claim Four does not state a claim against Officer Olson. The only Wolff requirement

6 even remotely suggested by plaintiff’s allegations is the ability to call witnesses. It appears clear

7 from the facts alleged that plaintiff was not precluded from presenting an inmate witness; he

8 apparently declined to do so after learning that more than one inmate can be found guilty of

9 possessing the same contraband. The way that Officer Olson is alleged to have conducted the

10 hearing did not violate any dictate of Wolff. Moreover, plaintiff’s insistence on the invalidity of

11 the guilt finding does not state a claim for relief. The decision rendered on a disciplinary charge

12 must be supported by “some evidence” in the record, Superintendent v. Hill, 472 U.S. 445, 455-

13 56 (1985), as plaintiff appears to recognize, see ECF No. 1 at 9. The “some evidence” standard

14 is met if “there is any evidence in the record that could support the conclusion reached.” Hill,

15 472 U.S. at 455-56 (emphasis added). The complaint plainly states that Officer Kaihe and other

16 witnesses testified at the hearing, and that Kaihe said he had seen the phone in plaintiff’s hand.

17 Eye-witness testimony indisputably constitutes “some evidence” of guilt.

18 Finally, plaintiff’s challenge to the handling of his appeal in Claim Five does not state a

19 cognizable due process claim. Plaintiff has no protected liberty interest in the processing of his

20 appeal, because inmates lack a constitutional entitlement to any specific prison grievance

21 procedure. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann v. Adams, 855

22 F.2d 639, 640 (9th Cir. 1988)). In Ramirez, the Ninth Circuit affirmed the district court’s

23 dismissal for failure to state a claim where the plaintiff alleged that the disciplinary and appeals

24 boards violated his due process rights when they denied his request to examine adverse witnesses

25 and allegedly “‘added things’ to his appeal to mask the procedural errors committed at the

26 disciplinary hearing.” 334 F.3d at 860. Plaintiff’s allegations are analogous, and the same result

27 must apply.

28 ////

1 For all these reasons, the complaint fails to state a cognizable due process claim against

2 any defendant.

3 V. Leave to Amend Would Be Futile

4 Leave to amend need not be granted when amendment would be futile. Hartmann v.

5 CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013). Here plaintiff’s grievances and the relevant facts

6 have been clearly and comprehensively stated, but plaintiff’s challenge to his disciplinary

7 violation does not present a cognizable constitutional issue as a matter of law. Accordingly,

8 amendment would be futile.

9 CONCLUSION

10 In accordance with the above, IT IS HEREBY ORDERED that:

11 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted.

12 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff

13 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.

14 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the

15 Director of the California Department of Corrections and Rehabilitation filed concurrently

16 herewith.

17 3. The Clerk of Court shall randomly assign a district judge to this action.

18 It is further RECOMMENDED that:

19 1. The complaint be DISMISSED pursuant to 28 U.S.C. § 1915A(a), without leave to

20 amend, for failure to state a claim upon which relief may be granted; and

21 2. This case be CLOSED.

22 These findings and recommendations are submitted to the United States District Judge

23 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14)

24 days after being served with these findings and recommendations, plaintiff may file written

25 objections with the court and serve a copy on all parties. Such a document should be captioned

26 “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that

27 ////

28 ////

1 | failure to file objections within the specified time may waive the right to appeal the District

2 || Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991).

3 || DATED: June 10, 2021 ~

4 ttt0n—

ALLISON CLAIRE

5 UNITED STATES MAGISTRATE JUDGE

6

7

8

9

10

1]

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28