Contreras v. Diaz

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8 UNITED STATES DISTRICT COURT

9 FOR THE SOUTHERN DISTRICT OF CALIFORNIA

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RAMON CONTRERAS, Case No.: 19-cv-02108-BAS-WVG

11 CDCR #V-99014,

ORDER:

12 Plaintiff,

(1) DENYING PLAINTIFF’S MOTION

13 v. TO APPOINT COUNSEL

[ECF No. 9];

14 RALPH DIAZ; PATRICK COVELLO; K.

COTTRELL; C. ROCHA; V. CORTES; AND

15 H. CRUZ; M. SEAMAN; PLASCENCIA;

J. JUAREZ, (2) DISMISSING SECOND AMENDED

16 COMPLAINT FOR FAILING TO

Defendants. STATE A CLAIM

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18 Before the Court are Plaintiff Ramon Contreras’ Second Amended Complaint

19 (“SAC”) and Motion to Appoint Counsel. (SAC, ECF No. 7; Mot. to Appoint Counsel,

20 ECF No. 9.) For the reasons stated below, the Court DENIES Plaintiff’s Motion and

21 DISMISSES the SAC without leave to amend.

22 I. PROCEDURAL HISTORY

23 On November 1, 2019, Ramon Contreras (“Plaintiff”), currently incarcerated at

24 Ironwood State Prison (“ISP”) located in Blythe, California, and proceeding pro se, filed a

25 civil rights complaint pursuant to 42 U.S.C. § 1983 (“Compl.”) against officials at the

26 California Department of Corrections and Rehabilitation (“CDCR”), along with prison

27 officials at the Richard J. Donovan (“RJD”) in San Diego, California. (Compl., ECF No.

28 1.) Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) when he

1 filed his Complaint; instead, he filed a Motion to Proceed In Forma Pauperis (“IFP”)

2 pursuant to 28 U.S.C. § 1915(a). (ECF No. 2.)

3 On January 13, 2020, the Court granted Plaintiff’s Motion to Proceed IFP and

4 simultaneously dismissed his Complaint for failing to state a claim pursuant to 28 U.S.C.

5 § 1915(e)(2) and § 1915A(b). (ECF No. 3.) Plaintiff was granted leave to file an amended

6 pleading to correct the deficiencies identified in the Court’s Order. (Id. at 12–13.) Plaintiff

7 was cautioned that Defendants not named and any claim not re-alleged in his Amended

8 Complaint would be considered waived. (See id. (citing S.D. Cal. CivLR 15.1; Hal Roach

9 Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n

10 amended pleading supersedes the original.”); Lacey v. Maricopa Cty., 693 F.3d 896, 928

11 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not re-alleged

12 in an amended pleading may be “considered waived if not repled.”).)

13 On January 27, 2020, Plaintiff filed a First Amended Complaint (“FAC”). (See ECF

14 No. 4.) The Court again conducted the required sua sponte screening and found that he

15 again failed to state a claim upon which relief could be granted. (ECF No. 6 at 11.)

16 Additionally, because Plaintiff no longer named Cruz, Seaman, and Plascencia as

17 Defendants in his FAC, the claims against these Defendants were deemed waived and those

18 Defendants were dismissed from this action. (Id. at 2 (citing Lacey, 693 F.3d at 928).)

19 Plaintiff was granted leave to file an amended pleading and, on April 29, 2020,

20 Plaintiff filed his Second Amended Complaint (“SAC”). (ECF No. 7.) Plaintiff has also

21 filed a Motion to Appoint Counsel. (ECF No. 9.)

22 II. MOTION TO APPOINT COUNSEL

23 Plaintiff seeks appointment of counsel on the grounds that he is indigent and lacks

24 legal training, and because this is a “factually complex case.” (See Mot. to Appoint

25 Counsel at 1–2.)

26 All documents filed pro se are liberally construed, and “a pro se complaint, however

27 inartfully pleaded, must be held to less stringent standards than formal pleadings drafted

28 by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429

1 U.S. 97, 106 (1976) (internal quotations omitted)). But there is no constitutional right to

2 counsel in a civil case and Plaintiff’s SAC does not demand that the Court exercise its

3 limited discretion to request than an attorney represent him pro bono pursuant to 28 U.S.C.

4 § 1915(e)(1) at this stage of the case. See Agyeman v. Corr. Corp. of America, 390 F.3d

5 1101, 1103 (9th Cir. 2004); Lassiter v. Dept. of Social Servs., 452 U.S. 18, 25 (1981). Only

6 “exceptional circumstances” support such a discretionary appointment. Palmer v. Valdez,

7 560 F.3d 965, 970 (9th Cir. 2009); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).

8 Exceptional circumstances exist where there is cumulative showing of both a likelihood of

9 success on the merits and a demonstrated inability of the pro se litigant to articulate his

10 claims in light of their legal complexity. Terrell, 935 F.2d at 1017.

11 As currently pleaded, Plaintiff’s SAC demonstrates that while he may not be

12 formally trained in law, he nevertheless is fully capable of legibly articulating the facts and

13 circumstances relevant to his claims, which are typical and not legally “complex.”

14 Agyeman, 390 F.3d at 1103. Moreover, for the reasons discussed below, Plaintiff has not

15 shown that he is likely to succeed on the merits of the claims.

16 Therefore, the Court DENIES Plaintiff’s Motion to Appoint Counsel. (ECF No. 9.)

17 III. SCREENING OF SAC

18 A. Standard of Review

19 As the Court previously informed Plaintiff, because he is a prisoner and is

20 proceeding IFP, his SAC also requires a pre-answer screening pursuant to 28 U.S.C.

21 § 1915(e)(2) and § 1915A(b). Under these statutes, the Court must sua sponte dismiss a

22 prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails to state a

23 claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d

24 1122, 1126–27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v.

25 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The

26 purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not

27 bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir.

28 2014) (citation omitted).

1 “The standard for determining whether a plaintiff has failed to state a claim upon

2 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

3 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d

4 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.

5 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard

6 applied in the context of failure to state a claim under Federal Rule of Civil Procedure

7 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted

8 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

9 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.

10 Detailed factual allegations are not required, but “[t]hreadbare recitals of the

11 elements of a cause of action, supported by mere conclusory statements, do not suffice.”

12 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief

13 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial

14 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned,

15 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility

16 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

17 B. Plaintiff’s Allegations

18 On July 13, 2018, Plaintiff was housed at the Richard J. Donovan Correctional

19 Facility (“RJD”). (See SAC at 4.) A “full search of the housing unit [where] Plaintiff was

20 housed in was conducted.” (Id.) Plaintiff’s cell was searched and Defendant Rocha

21 “falsely claimed that Plaintiff had within his personal property a controlled substance.”

22 (Id. at 4–5.) Plaintiff alleges Rocha “filed a false incidence and Rules Violation Report

23 (RVR).” (Id. at 5.) As a result, Plaintiff claims he “spent unjustly approximately 5 months

24 in Administrative Segregation Unit (ASU).” (Id.)

25 Plaintiff claims Rocha “failed to act as an impartial officer because he did not charge

26 and place Plaintiff’s cell-mate into ASU” in violation of CDCR policy. (Id.) On January

27 10, 2019, Plaintiff was “ultimately exonerated and the RVR was dismissed when he went

28 for a rehearing on the RVR charge.” (Id.) Plaintiff claims that the “disciplinary hearing

1 results” from the January 1, 2019 rehearing is the “basis of the present complaint because

2 they establish that Defendant Rocha lied, Defendant Cortes was not an impartial fact-

3 finder, and the first disciplinary hearing results were dismissed because of a due process

4 violation.” (Id.)

5 Rocha “claimed he was the first and only officer to search Plaintiff’s cell.” (Id.)

6 However, Plaintiff alleges that this claim was “proven to be false because the cell-search

7 worksheet that was issued shows that the cell had been searched by another officer an hour

8 prior to Defendant Rocha’s search of the cell.” (Id.)

9 Plaintiff claims Rocha issued a false report on July 13, 2018 following the cell search

10 and Plaintiff “was handcuffed and placed inside a cage for several hours.” (Id. at 5–6.)

11 Defendant Cottrell, the “superior officer overseeing the search[,]” informed Plaintiff as to

12 “why he was going to be placed in ASU.” (Id. at 6.) Plaintiff told Cottrell that he “did not

13 have a controlled substance in his property and that he had no knowledge of any controlled

14 substance being inside the cell he occupied.” (Id.)

15 Plaintiff claims that by placing only him and not also his cellmate in the ASU, Rocha

16 and Cottrell “were not acting as impartial officers.” (Id.) Plaintiff alleges that contraband

17 was found in other cells during the same cell search and in those instances both cellmates

18 were placed in the ASU. (See id.) Plaintiff claims CDCR policy “requires that when

19 contraband is discovered in a cell occupied by two inmates and none of the inmates takes

20 responsibility for the contraband, both inmates are to be charged and placed in ASU.” (Id.)

21 Plaintiff claims that Rocha “lied about where and whose property he discovered the

22 controlled substance because he did not want to deal with placing Plaintiff’s cellmate” into

23 the ASU because his cellmate was “hearing impaired.” (Id. at 6–7.) Plaintiff alleges

24 placing a hearing-impaired inmate in the ASU requires officers to “follow a more time-

25 consuming procedure.” (Id. at 7.) Rocha “did not want to deal with the extra work so he

26 lied.” (Id.)

27 While Plaintiff was housed in the ASU, he “maintained his innocence.” (Id.) On

28 September 6, 2018 he “agreed to sign a 128B NIK chrono accepting the results of the field

1 test that was conducted on the contraband in order to proceed with the truth finding

2 process.” (Id.) Plaintiff only agreed to sign this chrono because Defendant Covello “and

3 other committee members informed/guaranteed Plaintiff that it could not be used as

4 evidence to find him guilty at his RVR hearing.” (Id.)

5 Plaintiff had another committee hearing on September 20, 2018 and he was

6 “reassured” by Covello that the chrono “could not be used against him.” (Id.) Plaintiff

7 was also told by Covello that he would “follow Plaintiff’s case in order to make sure proper

8 procedure would be followed.” (Id.)

9 On October 11, 2018, Plaintiff went to his disciplinary hearing where Cortes was the

10 Senior Hearing Officer. (See id.) Cortes found Plaintiff “guilty on the ground that he

11 accepted ‘ownership’ of the controlled substance when he signed the 128B NIK chrono.”

12 (Id.) Plaintiff “explained to Defendant Cortes that Defendant Covello and other committee

13 members had guaranteed that the 128B NIK chrono could not be used to find him guilty.”

14 (Id. at 7–8.) Cortes told Plaintiff that if Covello was conducting the hearing he would

15 “probably find Plaintiff not guilty” but since Cortes was the hearing officer, “he was

16 finding Plaintiff guilty.” (Id at 8.)

17 Plaintiff claims Cortes was “not an impartial fact-finder” as his “unwillingness to

18 follow CDCR policy shows that he went into the RVR hearing with a pre-determined mind

19 to find Plaintiff guilty.” (Id.) Cortes denied Plaintiff’s request to have Rocha as a witness

20 so he “could question him regarding the statements he made.” (Id.) Plaintiff also requested

21 that his cellmate be called as a witness because his cellmate was “taking responsibility for

22 the contraband.” (Id.) Cortes “refused to accept” a written statement that Plaintiff had

23 prepared. (Id.) Plaintiff claims “Cortes’s decision to find Plaintiff guilty was arbitrary

24 because it was based on evidence he knew was inadmissible.” (Id.)

25 Plaintiff submitted administrative grievances to Covello and Juarez “explaining

26 what happened at the RVR hearing and requesting for them to step in and correct the

27 arbitrary guilty filing.” (Id.) “However, neither Defendant responded.” (Id. at 9.) Plaintiff

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1 claims Juarez “was not an impartial fact-finder because he affirmed Defendant Cortes’s

2 arbitrary guilty finding on October 28, 2018.” (Id.)

3 Plaintiff’s father contacted the Office of the Ombudsmen and “two representatives

4 showed up for a December 6, 2018 committee hearing held for Plaintiff.” (Id.) Plaintiff

5 told the committee members, one of whom was Juarez, that the “only reason he had been

6 found guilty of the RVR” was due to the chrono he had signed. (Id.) “Juarez acknowledged

7 that he made an error by affirming Defendant Cortes’s guilty finding.” (Id.) Juarez

8 “released Plaintiff from the ASU and ordered the RVR re-issued and reheard on the ground

9 that a due process violation occurred.” (Id.)

10 On July 26, 2018, thirteen days after Plaintiff was initially placed in the ASU, he

11 alleges he was interviewed by a “Mr. Tim Buzzbe from the Governor’s Office” for a

12 “commutation hearing.” (Id. at 11.) Plaintiff claims Buzzbe told him that “his ASU

13 placement along with the pending RVR did not look good.” (Id.) He further informed

14 Plaintiff that “he would not be submitting a summary report to the Governor’s Office for

15 consideration of the commutation petition if the Plaintiff was ultimately found guilty of the

16 RVR.” (Id.)

17 Plaintiff was “exonerated on January 10, 2019.” (Id.) Plaintiff claims that the

18 second disciplinary hearing resulting in a “not guilty” ruling was based on a finding that

19 Rocha “provided inconsistent reports and statements, i.e. he lied.” (Id. at 12.)

20 C. Due Process Claim Under the Fourteenth Amendment

21 Plaintiff claims that Defendants violated his right to due process under the

22 Fourteenth Amendment during his first disciplinary hearing. (See SAC at 13.) The

23 Fourteenth Amendment provides that “[n]o state shall . . . deprive any person of life, liberty,

24 or property, without due process of law.” U.S. Const. amend. XIV, § 1. “The requirements

25 of procedural due process apply only to the deprivation of interests encompassed by the

26 Fourteenth Amendment’s protection of liberty and property.” Bd. of Regents v. Roth, 408

27 U.S. 564, 569 (1972). “To state a procedural due process claim, [a plaintiff] must allege

28 ‘(1) a liberty or property interest protected by the Constitution; (2) a deprivation of the

1 interest by the government; [and] (3) lack of process.’” Wright v. Riveland, 219 F.3d 905,

2 913 (9th Cir. 2000) (quoting Portman v. Cnty. of Santa Clara, 995 F.2d 898, 904 (9th Cir.

3 1993)).

4 Plaintiff alleges that his due process rights were violated during his first disciplinary

5 hearing based on Rocha’s purported false statements. (See id. at 5.) In addition, Plaintiff

6 claims that Cortes was not “an impartial fact-finder” as his “unwillingness to follow CDCR

7 policy shows that he went into the RVR hearing with a pre-determined mind to find

8 Plaintiff guilty.” (Id.)

9 A prisoner is entitled to certain due process protections when he is charged with a

10 disciplinary violation. See Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003) (citing

11 Wolff v. McDonnell, 418 U.S. 539, 564-571 (1974)). “Such protections include the rights

12 to call witnesses, to present documentary evidence and to have a written statement by the

13 fact-finder as to the evidence relied upon and the reasons for the disciplinary action taken.”

14 Id.

15 Even if Plaintiff is able to demonstrate that he was deprived of due process by

16 Defendants’ purported failure to provide Wolff protections during his first disciplinary

17 hearing, Plaintiff’s own allegations demonstrate that the RVR was re-issued and reheard

18 which resulted in a reversal of the previous guilty finding. (See SAC at 12.) Therefore,

19 Plaintiff’s claims of due process violations arising from his first disciplinary hearing are

20 moot in light of the grant of a new hearing which resulted in a not guilty verdict. See Brown

21 v. Marshall, No. CIV S-07-0956 MCE DAD P, 2012 WL 12906131, *9 (E.D. Cal. Mar. 1,

22 2012) (“[P]laintiff’s procedural due process claims related to either his first or second

23 disciplinary proceedings have been rendered moot by the subsequent re-issuing and re-

24 hearing of the rules violation charge against him.”); (Shotwell v. Brandt, No. C 10–5232

25 CW (PR), 2012 WL 6569402, at *3 (N.D. Cal. Dec. 17, 2012) (finding that “the remedy

26 for an unfair hearing is another hearing” and “due process was satisfied when the results

27 of the first disciplinary hearing were vacated, [and] the RVR was ordered reissued and

28 reheard.”) (citing Raditch v. United States, 929 F.2d 478, 481 (9th Cir. 1991)).

1 Plaintiff does not allege that he suffered any loss of credits or that his sentence was

2 extended as a result of the first disciplinary hearing. See Randolph v. Sandoval, No. 1:18-

3 cv-00968-LJO-BAM (PC), 2019 WL 2410469, *7 (E.D. Cal. June 7, 2019) (finding no due

4 process violation where “disciplinary proceedings were rendered moot by the subsequent

5 not guilty finding” and the plaintiff did not lose credits, serve “additional time in

6 segregation,” or maintain a “disciplinary record for the alleged offenses after the RVRs

7 were overturned.”); see also Horne v. Coughlin, 155 F.3d 26, 31, n. 3 (2nd Cir. 1998)

8 (finding the plaintiff’s due process claims with regard to his first hearing were rendered

9 null after the findings and penalties were vacated and a new hearing ordered and plaintiff

10 suffered no loss of good time credits); Morissette v. Peters, 45 F.3d 1119, 1122 (7th Cir.

11 1995) (finding no injury after a due process violation in the plaintiff’s first disciplinary

12 hearing was subsequently corrected in the administrative appeals process and plaintiff’s

13 sentence was adjusted so that he served no additional time in segregation.)

14 Here, while Plaintiff claims that his chances of receiving a commutation hearing

15 were diminished by the guilty finding from the first disciplinary hearing, he still fails to

16 state a claim. “There is no constitutional or inherent right of a convicted person to be

17 conditionally released before the expiration of a valid sentence.” Greenholtz v. Inmates of

18 Nebraska, 442 U.S. 1, 7 (1979). The Supreme Court has found that a prisoner’s desire to

19 receive a commutation of his sentence does not constitute a liberty interest. Connecticut

20 Bd. of Pardons v. Dumschat, 452 U.S. 458, 465 (1981) (holding that the “expectation that

21 a lawfully imposed sentence will be commuted . . . is simply a unilateral hope.”).

22 Thus, the Court finds that Plaintiff has failed to state a Fourteenth Amendment claim

23 upon which relief may be granted.

24 D. Leave to Amend

25 Because Plaintiff has already been provided an explanation of his pleading

26 deficiencies, as well as an opportunity to amend those claims to no avail, the Court finds

27 granting further leave to amend would be futile. See Gonzalez v. Planned Parenthood,

28 759, F.3d 1112, 1116 (9th Cir. 2014) (“‘Futility of amendment can, by itself, justify the

1 |}denial of . . . leave to amend.’’’) (quoting Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir.

2 111995)); Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009)

3 ||(‘[W]here the plaintiff has previously been granted leave to amend and has subsequently

4 || failed to add the requisite particularity to its claims, [t]he district court’s discretion to deny

5 || leave to amend 1s particularly broad.” (internal quotation marks omitted) (second alteration

6 original)).

7 ||IV. CONCLUSION AND ORDERS

8 For the reasons explained, the Court:

9 1. DENIES Plaintiff’s Motion to Appoint Counsel (ECF No. 9);

10 2. DISMISSES this civil action, pursuant to 28 U.S.C. § 1915(e)(2)(B)qi) and

11 1915A(b)(1), without further leave to amend for failure to state a claim upon which §

12 || 1983 relief can be granted.

13 3. DIRECTS the Clerk of Court to enter a final judgment of dismissal and close

14 || the file.

15 IT IS SO ORDERED.

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17 | DATED: June 9, 2020 (pil gt Ayphaa □

i United States District Judge

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