Richardson v. Valdez

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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DONN RICHARDSON Case No.: 3:20-cv-01760-BAS-JLB

11 CDCR # AC9306,

ORDER DISMISSING FIRST

12 Plaintiff, AMENDED COMPLAINT FOR

13 v. FAILING TO STATE A CLAIM

PURSUANT TO 28 U.S.C. § 1915A(b)

14 O. VALDEZ “LT.” S.H.O.,

E. CHAVARRIA “AW”, C.O.O.,

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Defendants.

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17 On September 8, 2020, Donn Richardson (“Richardson” or “Plaintiff”), currently

18 incarcerated at Pelican Bay State Prison (“PBSP”) in Crescent City, California and

19 proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983, together with

20 a motion to proceed in forma pauperis (“IFP”). (ECF Nos. 1, 2.) On December 7, 2020,

21 Richardson paid the filing fee required by 28 U.S.C. § 1914(a). (ECF No. 3.)

22 In its December 17, 2020 Order, the Court denied the motion to proceed in forma

23 pauperis as moot, dismissed Richardson’s Complaint for failing to state a claim pursuant

24 to 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A(b), and granted him leave to file an

25 amended complaint. (ECF No. 4.) Richardson filed a First Amended Complaint (“FAC”)

26 on February 10, 2021. (ECF No. 8.) For the reasons stated below, the Court DISMISSES

27 Plaintiff’s FAC for failing to state a claim.

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1 I. SCREENING OF FAC

2 A. Standard of Review

3 The Court must conduct an initial review of Plaintiff’s FAC pursuant to 28 U.S.C. §

4 1915A because he is a prisoner and seeks “redress from a governmental entity or officer or

5 employee of a governmental entity.” See 28 U.S.C. § 1915A(a); see also Chavez v.

6 Robinson, 817 F.3d 1162, 1168 (9th Cir. 2016). The mandatory screening provisions of §

7 1915A apply to all prisoners, no matter their fee status, who bring suit against a

8 governmental entity, officer, or employee. See, e.g., Resnick v. Hayes, 213 F.3d 443, 446–

9 47 (9th Cir. 2000). “On review, the court shall . . . dismiss the complaint, or any portion

10 of the complaint,” if it “(1) is frivolous, malicious, or fails to state a claim upon which

11 relief may be granted; or (2) seeks monetary relief from a defendant who is immune from

12 such relief.” Olivas v. Nevada ex rel. Dept. of Corr., 856 F.3d 1281, 1283 (9th Cir. 2017)

13 (quoting 28 U.S.C. § 1915A(b)).

14 B. Plaintiff’s Factual Allegations

15 The allegations Richardson makes in his FAC appear to refer to the same incident

16 as his original Complaint, though he provides much less detail. The Court takes judicial

17 notice of the factual allegations in Richardson’s original Complaint in order to provide

18 some context to the factual allegations in his FAC. See Molus v. Swan, Civil Case No.

19 3:05-cv-00452-MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing United

20 States v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986) (noting that a court may

21 take judicial notice of its own records).

22 In his original Complaint, Richardson alleged the following:

23 On May 17, 2019, Corrections Officer C. Bradford searched his cell at

24 Calipatria State Prison (CSP) and located “two (2) inmate manufactured

weapons located in an eyeglass case on the floor under the inmate desk.” Exh.

25 to Compl. at 3. After a disciplinary hearing on July 12, 2019, Richardson was

26 found guilty by Defendant Valdez of possessing the weapons and was

assessed 360 days loss of credits and 90 days loss of privileges. Id. at 9.

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Richardson alleges this determination was upheld by Defendant Chavarria.

28 Id. at 1.

1 Richardson appealed the guilty finding. Id. at 10. His appeal was

partially granted and he was given a new hearing, which occurred on February

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23, 2020. Id. at 12, 21. The Hearing Officer noted that multiple inmates had

3 access to Richardson’s cell, “the weapons were located in an open location in

the cell and were not secured,” and there were discrepancies in the reports as

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to where the weapons were found and concluded Plaintiff was not guilty. Id.

5 at 21.

6 (Order Dismissing Compl. at 2–3, ECF No. 4.)

7 In his FAC, Richardson alleges Defendant Valdez violated his Fifth, Sixth and

8 Fourteenth Amendment rights. (FAC at 2.) He alleges that Correctional Officer Cesares

9 falsely claimed he found a cell phone charger in Richardson’s cell, that Correctional

10 Officer Bradford falsified a report regarding finding weapons in Richardson’s cell, and

11 Lieutenant Preciado “admitted that c/o Bradford gave inconsistent reports of where he

12 found weapons.” (Id. at 3.) According to Richardson, Defendant Valdez held an “illegal

13 hearing” on these violations “without first providing Plaintiff with a certified copy of this

14 officer’s report,” and “refused to allow Plaintiff to call his witnesses.” (Id. at 2–3, 5.)

15 Richardson also alleges that Valdez “used falsified reports and testimony of an unreliable

16 witness who proved to be corrupt, in order to find Plaintiff guilty.” (Id. at 3.) He notes

17 that “the procedural process/due process violations were so blatant, that once Plaintiff

18 [was] sent to another prison, he was granted a[] re-issue and re-hearing of [the] RVR . . . ,

19 and the truth came forth, which resulted in Plaintiff being vindicated with a not guilty

20 verdict.” (Id. at 3, 5.) Richardson also claims his Sixth Amendment right to confront

21 witnesses and to compulsory process to obtain witnesses was violated by Valdez’s refusal

22 to allow him to introduce favorable evidence and that Defendant Chavarria, as Valdez’s

23 supervisor, gave Valdez “permission to deny Plaintiff his due process rights.” (Id. at 3–5.)

24 C. 42 U.S.C. § 1983

25 “Section 1983 creates a private right of action against individuals who, acting under

26 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey,

27 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive

28 rights, but merely provides a method for vindicating federal rights elsewhere conferred.”

1 Graham v. Connor, 490 U.S. 386, 393–94 (1989) (internal quotation marks and citations

2 omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a

3 right secured by the Constitution and laws of the United States, and (2) that the deprivation

4 was committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc.,

5 698 F.3d 1128, 1138 (9th Cir. 2012).

6 II. DISCUSSION

7 Richardson alleges his Fifth and Fourteenth Amendment due process rights and his

8 Sixth Amendment right to present evidence in his defense were violated by Defendants

9 Valdez and Chavarria.

10 As to Richardson’s Fifth Amendment claim, “[i]t is well established that [a] Plaintiff

11 cannot advance a Fifth Amendment due process claim against a local government entity or

12 its employees, because the due process and equal protection components of the Fifth

13 Amendment apply only to the federal government.” See Sanchez v. City of Fresno, 914

14 F.Supp.2d 1079, 1098 (E.D. Cal. Dec. 26, 2012) (citing Lee v. City of Los Angeles, 250

15 F.3d 668, 687 (9th Cir. 2001) (dismissing Fifth Amendment due process and equal

16 protection claims brought against the City of Los Angeles because defendants were not

17 federal actors)).

18 His Sixth Amendment claim fares no better. The Sixth Amendment protects the

19 rights of defendants in criminal proceedings. “Prison disciplinary proceedings are not part

20 of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings

21 does not apply.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974).

22 This leaves Richardson’s Fourteenth Amendment due process claim. The

23 amendment, states, in relevant part that that “[n]o state shall . . . deprive any person of life,

24 liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. As the

25 Court explained to Richardson in its December 20, 2020 dismissal Order, while a prisoner

26 is entitled to certain due process protections when he is charged with a disciplinary

27 violation, Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003) (citing Wolff, 418 U.S.

28 at 564–71), any claim of due process violations arising from his first disciplinary hearing

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

2 || Brown v. Marshall, No. CIV S-07-0956 MCE DAD P, 2012 WL 12906131, *9 (E.D. Cal.

3 ||Mar. 1, 2012) (¢‘[P]laintiff's procedural due process claims related to either his first or

4 ||second disciplinary proceedings have been rendered moot by the subsequent re-issuing and

5 || re-hearing of the rules violation charge against him.”); Shotwell v. Brandt, No. C 10-5232

6 || CW (PR), 2012 WL 6569402, at *3 (N.D. Cal. Dec. 17, 2012) (citing Raditch v. United

T || States, 929 F.2d 478, 481 (9th Cir. 1991)) (finding that “the remedy for an unfair hearing

8 another hearing” and that “due process was satisfied when the results of the first

9 || disciplinary hearing were vacated, [and] the RVR was ordered reissued and reheard.’’).

10 || Therefore, his Fourteenth Amendment claim is also subject to dismissal.

11 || CONCLUSION AND ORDER

12 For the reasons explained, the Court DISMISSES Richardson’s Complaint for

13 || failing to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915A(b).

14 || Because amendment would be futile, the dismissal is without leave to amend. See Zucco

15 || Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (“[W]here the

16 || plaintiff has previously been granted leave to amend and has subsequently failed to add the

17 || requisite particularity to its claims, [t]he district court’s discretion to deny leave to amend

18 particularly broad.” (internal quotation marks omitted) (second alteration in original)).

19 || The Clerk is instructed to close the case.

20 IT IS SO ORDERED.

21 / a) ud

22 || DATED: March 12, 2021 Cypilig _| Hohe sk

23 United States Daarict Jalge

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