Luster v. Amezcua

Full title: DAPHNYE S. LUSTER, Plaintiff, v. RAUL H. AMEZCUA, et al., Defendants.

Court: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Date published: Apr 1, 2019

1:16-cv-00554-LJO-GSA-PC (E.D. Cal. Apr. 1, 2019)

Opinion

1:16-cv-00554-LJO-GSA-PC

04-01-2019

DAPHNYE S. LUSTER, Plaintiff, v. RAUL H. AMEZCUA, et al., Defendants.

Gary S. Austin UNITED STATES MAGISTRATE JUDGE

FINDINGS AND RECOMMENDATIONS , RECOMMENDING THAT DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BE GRANTED, ON THE GROUND THAT PLAINTIFF'S CLAIMS ARE BARRED BY HECK V. HUMPHREY
(ECF No. 37.) OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN (14) DAYS

I. BACKGROUND

Daphnye S. Luster ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with the Second Amended Complaint filed on June 11, 2018, against defendant Lieutenant (Lt.) Raul H. Amezcua ("Defendant") for retaliation under the First Amendment. (ECF No. 24.)¹

1 On September 24, 2018, the court issued an order dismissing all other claims and defendants from this case for Plaintiff's failure to state a claim. (ECF No. 28.)

On January 17, 2019, Defendant filed a motion for summary judgment on the ground that the undisputed facts show that Plaintiff's claims are barred under the favorable termination doctrine in Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).² (ECF No. 37.) On February 21, 2019, Plaintiff filed an opposition to the motion. (ECF Nos. 46-50.) On March 14, 2019, Defendant filed a reply. (ECF No. 55.) The motion is deemed submitted. Local Rule 230(l).

2 Concurrently with his motion for summary judgment, Defendant served Plaintiff with the requisite notice of the requirements for opposing the motion. Woods v. Carey, 684 F.3d 934, 939-41 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 960-61 (9th Cir. 1998). (ECF No. 37-1.)

For the reasons set forth below, the court concludes that Plaintiff's case is Heck-barred and recommends that Defendant's motion for summary judgment be granted.³

3 Because the court decides this matter on the Heck issue, it declines to consider the other issues raised in the motion.

II. SUMMARY JUDGMENT STANDARD

Any party may move for summary judgment, and the court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party's position, whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of materials in the record, including but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The court may consider other materials in the record not cited to by the parties, but it is not required to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).

Defendant does not bear the burden of proof at trial and in moving for summary judgment, he only needs to prove an absence of evidence to support Plaintiff's case. In re Oracle Corp. Sec. /// Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986)). If Defendants meet their initial burden, the burden then shifts to Plaintiff "to designate specific facts demonstrating the existence of genuine issues for trial." In re Oracle Corp., 627 F.3d at 387 (citing Celotex Corp., 477 U.S. at 323). This requires Plaintiff to "show more than the mere existence of a scintilla of evidence." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505 (1986)).

In judging the evidence at the summary judgment stage, the court may not make credibility determinations or weigh conflicting evidence, Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (quotation marks and citation omitted), and it must draw all inferences in the light most favorable to the nonmoving party and determine whether a genuine issue of material fact precludes entry of judgment, Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011) (quotation marks and citation omitted). The court determines only whether there is a genuine issue for trial. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (quotation marks and citations omitted).

In arriving at these findings and recommendations, the court carefully reviewed and considered all arguments, points and authorities, declarations, exhibits, statements of undisputed facts and responses thereto, if any, objections, and other papers filed by the parties. Omission of reference to an argument, document, paper, or objection is not to be construed to the effect that this court did not consider the argument, document, paper, or objection. This court thoroughly reviewed and considered the evidence it deemed admissible, material, and appropriate. III. PLAINTIFF'S ALLEGATIONS AT ISSUE ⁴

4 Plaintiff's Second Amended Complaint is verified, and her allegations constitute evidence where they are based on her personal knowledge of facts admissible in evidence. Jones v. Blanas, 393 F.3d 918, 922-23 (9th Cir. 2004). The summarization of Plaintiff's claim in this section should not be viewed by the parties as a ruling that the allegations are admissible. The court will address, to the extent necessary, the admissibility of Plaintiff's evidence in the sections which follow.

Plaintiff is presently incarcerated at the California Institution for Women in Corona, California. The events at issue in the Second Amended Complaint allegedly occurred at the Central California Women's Facility (CCWF) in Chowchilla, California, when Plaintiff was incarcerated there in the custody of the California Department of Corrections and Rehabilitation (CDCR). Plaintiff's factual allegations follow.

On February 24, 2015, Plaintiff reported a battery that had taken place in her room between two inmates. Battery between these two inmates continued through the next day. On the first day, one of the inmates had to receive staples. On the second day, Plaintiff informed defendant Lt. Amezcua of the incidents, and he [Amezcua] told Plaintiff he was convinced the inmate with the staples had fallen off her top bunk. Plaintiff informed him that this was not true and told him that the whole room would like to make a statement. Lt. Amezcua refused to interview the room. Plaintiff informed Lt. Amezcua that the inmate was being abused by her lover and if he was not going to do anything Plaintiff would then take it to the next level. As part of the WAC,⁵ Plaintiff had a duty to help her fellow peers. Lt. Amezcua placed Plaintiff in administrative segregation for the same battery she had reported to him. The retaliation against Plaintiff began.

5 Women's Advisory Council.

The false charge against Plaintiff caused her great suffering because she was denied her parole date on December 20, 2015 for having a recent 115,⁶ was taken to court for these charges, lost good time credits that she cannot recover and spent fifteen months in the SHU⁷ when she could have been preparing for her parole hearing.

6 CDCR form 115 is a Rules Violation Report.

7 Security Housing Unit.

Plaintiff seeks monetary damages and to have the Rules Violation Report removed from her prison file.

IV. PLAINTIFF'S RETALIATION CLAIM

"Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) /// because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal." Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); accord Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009).

After screening the Second Amended Complaint under 28 U.S.C. § 1915A, the court found that liberally construed, Plaintiff states a cognizable claim for retaliation against Defendant Lt. Amezcua. (ECF No. 26 at 10:21-22 (findings and recommendations); ECF No. 28 (adopted by district judge)). V. DEFENDANT'S STATEMENT OF UNDISPUTED FACTS (DUF) ⁸

8 Plaintiff failed to properly address Defendant's statement of undisputed facts, as required by Local Rule 260(b). Accordingly, the court may consider Defendant's assertions of fact as undisputed for purposes of this motion. Id.; Fed. R. Civ. P. 56(e)(2). However, in light of the Ninth Circuit's directive that a document filed pro se is "to be liberally construed," Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, and Rule 8(e) of the Federal Rules of Civil Procedure that "[p]leadings shall be construed so as to do justice," see Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167 L. Ed. 2d 1081 (2007), the court shall strive to resolve this motion for summary judgment on the merits.

Defendant submitted the following Statement of Undisputed Facts. (ECF No. 37-3.)

	Defendant's Undisputed Facts	Evidence
1.	Plaintiff Daphnye Suppora Luster aka DaphneySuppora Luster (CDCR No. W-54123) is aninmate in the custody of the CaliforniaDepartment of Corrections and Rehabilitation("CDCR").	Complaint, ECF No. 1; FirstAmended Complaint, ECF No.20; Second AmendedComplaint, ECF No. 24 (SAC);Declaration of J. Smith inSupport of Defendant's Motionfor Summary Judgment (SmithDecl.) at ¶ 3.
2.	Plaintiff filed this action on April 4, 2016,regarding an alleged incident at the CentralCalifornia Women's Facility (CCWF).	Complaint, ECF No. 1; FirstAmended Complaint, ECF No.20; SAC.
3.	Plaintiff's operative complaint alleges, amongother things, the following:	See SAC, generally.

	Defendant's Undisputed Facts	Evidence
	On February 24, 2015, Plaintiff reported a batterythat had taken place in Plaintiff's room betweentwo inmates. The battery between these twoinmates continued through the next day. On thefirst day, the inmate had to receive staples. On thesecond day, Plaintiff informed Defendant Lt.Amezcua of the incidents, and he [Amezcua] toldPlaintiff he was convinced the inmate with thestaples had fallen off her top bunk. Plaintiffinformed him that that was not true, and told himthat the whole room would like to make astatement. Defendant Amezcua refused tointerview the room. Plaintiff informed DefendantAmezcua that the inmate was being abused by herlover, and if he was not going to do anythingPlaintiff would then "take it to the next level."Instead, Defendant Amezcua placed Plaintiff inadministrative segregation for the same batteryshe reported to him. Plaintiff was then chargedwith the same battery via a Rules ViolationReport (RVR), and found guilty. This RVR wasfalse and issued in retaliation for Plaintiffthreatening to report Defendant Amezcua to hissupervisor for not properly investigating theassault in her housing unit.
4 .	In screening the Second Amended Complaint, thecourt found Plaintiff stated a potentiallycognizable claim of retaliation against DefendantAmezcua in relation to the issuance of a falseRVR following Plaintiff's statement that shewould "take it to the next level" if he did notproperly investigate the assault. The Courtdismissed all other claims and defendants.	ECF Nos. 26, 28.
5.	On May 14, 2015, an investigation into Plaintiff'salleged involvement into the February 24, 2015incident, was concluded. Due to the informationgathered in the investigation, Plaintiff wascharged with RVR log number 15-A-05-026"Battery on an Inmate with a Weapon."	SAC at 29; Declaration of R.Cartier in Support ofDefendant's Motion forSummary Judgment (CartierDecl.) ¶ 4, Exhibit B at 1, 42-46, 61-63; Smith Decl. ¶ 3,Exhibit A.

	Defendant's Undisputed Facts	Evidence
6.	The investigation revealed that on February 24,2015, at approximately 1519 hours, two alarmswere received. Upon their arrival, respondingstaff found two broken windows and InmateRamirez laying on the floor bleeding from a headwound. The occupants of Room 13 were orderedto exit their room and sit in the dayroom forinterviews. Due to the nature of Ramirez'sinjuries and the suspicious behavior of some ofthe inmates, Defendant Amezcua instructedresponding staff to place all the inmates inrestraints and escort them into the facilityprogram office for medical evaluations andurinalysis testing. Due to Ramirez's injures, shewas taken via the Emergency Response Vehicleto the Treatment and Triage Area (TTA) whereshe received staples to the back of her head.Inmates Luster, Ruiz, and Montford were placedin restraints and escorted to the facility clinic for amedical evaluation. Defendant Amezcuainterviewed inmate Ramirez upon her return.During the interview, inmate Ramirez initiallystated she had fainted from distress due to hearingbad news from home. She then changed her story,stating she slipped off her bed. Finally, Ramirezinformed Defendant Amezcua that she had beendrinking alcohol, got drunk, and fell off her bed.Confidential sources subsequently revealed thatPlaintiff battered inmate Ramirez with a weapon,specifically a lock. The confidential sources alsorevealed that another inmate battered Ramirez bypunching her in the head and face. As result ofthis investigation, inmates Luster, Montford, andRuiz were all placed in AdministrativeSegregation housing pending furtherinvestigation.Investigation and confidential sources revealedthat Plaintiff used a lock as a weapon and struckinmate Ramirez in the back of the head and as aresult, Ramirez fell to the ground. Plaintiff thenbegan to kick and punch Ramirez.	SAC at 32, 38; Cartier Decl. ¶4, Exhibit B at 1-5, 30, 32, 34-35, 42, 45, 60-63; Smith Decl.¶ 3, Exhibit A.

	Defendant's Undisputed Facts	Evidence
7.	On June 17, 2015, Plaintiff appeared before theSenior Hearing Officer (SHO) for adjudication ofthe RVR.	SAC at 24; Smith Decl. ¶ 3,Exhibit A at 2.
8.	In the RVR and incident report, Plaintiff wasinformed that the matter was referred to theMadera County District Attorney for possiblefelony prosecution.	SAC at 25; Cartier Decl. ¶ 4,Exhibit B at 5; Smith Decl. ¶ 3,Exhibit A at 3.
9.	Investigative Employee Officer Orozco wasassigned in accordance with California Code ofRegulations, Title 15, section 3315(d)(1)(A).Officer Orozco interviewed inmate Luster inorder to gather information to assist the SHO, andgathered additional evidence as requested.	SAC at 25; Smith Decl. ¶ 3,Exhibit A at 3.
10.	Officer Orozco also interviewed inmate Slater,inmate Valdez, inmate Rico, inmate Reyes,inmate Kusalich, inmate Preasmyer, DefendantAmezcua, Officer Martinez, Sergeant Rubalcava,Licensed Vocational Nurse Shoroye, SergeantFlores, Officer Valencia, and Sergeant Ybarra perPlaintiff's request.	SAC 19-23, 25-26; Smith Decl.¶ 3, Exhibit A at 3.
11.	The SHO also considered information from fiveconfidential sources as part of the RVR.	SAC at 26, 29; Smith Decl. ¶ 3,Exhibit A at 1, 4-5, 7-8.
12.	After considering all evidence, includingPlaintiff's not guilty plea, the SHO found Plaintiffguilty of "Battery on an Inmate with a Weapon."Plaintiff was assessed 181 days loss ofbehavioral/work credits.	SAC 27-28; Smith Decl. ¶ 3,Exhibit A at 4-6.
13.	Plaintiff's guilty finding for RVR log number 15-A-05-026 still stands and her credits have notbeen restored.	Smith Decl. ¶ 4.
14.	The Madera County District Attorney's officeprosecuted Plaintiff for the February 24, 2015incident.	Cartier Decl. ¶ 3, Exhibit A;Cartier Decl. ¶ 4, Exhibit B;Defendant's Request forJudicial Notice, Exhibit A.
15.	On August 11, 2015, the Madera County DistrictAttorney's Office charged Plaintiff with a felonyin violation of California Penal Code section 4500	Cartier Decl. ¶ 3, Exhibit A;Defendant's Request forJudicial Notice, Exhibit A.

	Defendant's Undisputed Facts	Evidence
	in case number MCR052134A. Specifically,Plaintiff was charged with unlawfully, withmalice aforethought, assaulting inmate Ramirezwith a deadly weapon and with force likely toproduce great bodily injury whileundergoing a life sentence in the California StatePrison, Central California Women's Facility.
16.	At the August 14, 2015 preliminary hearing,Plaintiff pleaded guilty to California Penal Codesection 242, misdemeanor battery arising out ofthe February 24, 2015 incident.	Cartier Decl. ¶ 6, Exhibit C;Defendant's Request forJudicial Notice, Exhibit A.
17.	As part of her guilty plea, Plaintiff stipulated tothe factual basis of the charges.	Cartier Decl. ¶ 6, Exhibit C;Defendant's Request forJudicial Notice, Exhibit A.
18.	As a result of her guilty plea, Plaintiff wassentenced to the Madera County Department ofCorrections for three days. She was also orderedto pay $630.00 in fines and restitution.	Cartier Decl. ¶ 6, Exhibit C;Cartier Decl. ¶ 7; Defendant'sRequest for Judicial Notice,Exhibit A.
19.	This conviction still stands today and has notbeen overturned.	Cartier Decl. ¶ 9.

VI. DEFENDANT'S ARGUMENT -- PLAINTIFF IS BARRED FROM THIS ACTION UNDER THE FAVORABLE TERMINATION RULE IN HECK V. HUMPHREY

Defendant's evidence includes Plaintiff's allegations in her complaints; the declarations of J. Smith (Custodian of Inmates' Case Records) and Rachel Cartier (Senior Deputy District Attorney), Plaintiff's prison records; and, court records.

Defendant argues that a review of Plaintiff's Second Amended Complaint, the associated Rules Violation Report (RVR), and the related criminal case show that Plaintiff's suit is barred under the favorable termination doctrine. Defendant argues that the effect of Heck and its progeny on Plaintiff's claims for retaliation regarding the falsification of the RVR is clear: Plaintiff's demand for damages or declaratory relief on those claims is barred until her conviction /// /// and the RVR are overturned. Defendant claims that courts in this jurisdiction and in other circuits have concluded that the Heck rule bars retaliation claims.

In support of this argument, Defendant Amezcua cites Plaintiff's allegations that she asked Defendant to investigate a battery in her housing unit and when he refused, Plaintiff threatened to "take it to the next level." (DUF 3-4.) Plaintiff alleges that in retaliation, Defendant placed Plaintiff in administrative segregation and had her charged with the very battery she requested to be investigated. (DUF 3.) Plaintiff was later found guilty of the RVR and was assessed a loss of credits. (DUF 3, 6, 12.) Subsequently, the Madera County District Attorney filed felony charges against Plaintiff arising out of the February 24, 2015 incident, which Plaintiff pleaded guilty to and stipulated to the factual basis of the charges. (DUF 15-18.) Neither the RVR, nor the criminal conviction, have been overturned. (DUF 13, 19.)

Defendant contends that Plaintiff's allegations, taken as true, meet the first two of the three elements of an "ordinary" retaliation claim, because Plaintiff engaged in constitutionally protected activity and she suffered an adverse action that would chill an ordinary person from pursuing that activity again. (ECF No. 37-2 at 8:14-16.) However, Defendant maintains that Plaintiff's retaliation claim is not "ordinary" because it has the character of a claim for retaliatory prosecution, which may not be brought against a prosecutor, who is immune from liability for the decision to prosecute. (Id. at 8:17-19.) Under the Supreme Court's decision in Hartman,⁹ Defendant reasons that the causation element of the retaliation claim is lacking without some sort of allegation to "bridge the gap," such as a showing by Plaintiff of a "retaliatory motive on the part of an official urging prosecution combined with an absence of probable cause supporting the prosecutor's decision to go forward." (Id. at 9:11-16.) Defendant concludes that Hartman controls Plaintiff's case insofar as a plaintiff must plead and prove there was no probable cause for his or her arrest and prosecution.

9 Hartman v. Moore, 547 U.S. 250 (2006).

Defendant argues that the litigation of Plaintiff's action would necessarily center on the lawfulness of the underlying criminal conviction and would, in effect, re-litigate Plaintiff's conviction for the February 24, 2015 attack on which she was found guilty following the RVR hearing and to which she pleaded guilty in Madera County, stipulating to the facts that gave rise to the charges. Defendant concludes that Heck clearly forbids this case from going forward because a successful § 1983 action here would negate not only the RVR but Plaintiff's criminal admission to guilt and the facts of the RVR. Thus the motion for summary judgment should be granted.

VII. DEFENDANT'S BURDEN

The court finds that Defendant has met his burden of demonstrating that Plaintiff's § 1983 case is barred under the favorable termination doctrine in Heck, which was extended under Edwards v. Balisok, 520 U.S. 641 (1997) to actions under § 1983 that, if successful, would necessarily demonstrate the invalidity of confinement or its duration. The burden shifts to Plaintiff to come forward with evidence showing why this case should not be dismissed as barred by Heck.

VIII. PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS (PUF)

Plaintiff submitted the following facts in support of her opposition to Defendant's motion for summary judgment. (ECF No. 47 at 2-7.)

	Plaintiff's Undisputed Facts	Evidence10
1.	Statement of Facts.Parties.Defendant is a CDCR Lieutenant who wasworking at CCWF on February 24, 2015.
2.	Plaintiff is a CDCR inmate who was housed at theCentral California Women's Facility (CCWF) onFebruary 24, 2015.
3.	Two lovers, inmate Ramirez and inmateMontford, had been drinking inmate-manufactured alcohol when inmate Montfordstarted to batter inmate Ramirez by pulling her off

	Plaintiff's Undisputed Facts	Evidence10
	the top bunk, causing her to fall and hit her headon the cement floor, resulting in serious injuriesto inmate Ramirez that required staples.
4 .	Plaintiff, inmate Ramirez, and inmate Rico werethree (3) of the confidential sources that firstinformed Defendant of the battery and informedDefendant that the battery had taken place onFebruary 24, 2015.
5.	The other two (2) confidential sources wereinmate Ramirez and inmate Montford who turnedthe incident on Plaintiff.
6.	When Plaintiff first reported the battery toDefendant, he rehoused inmate Montford inadministrative segregation pending aninvestigation into the attack/battery, not Plaintiff.
7.	Rules Violation and Investigation.The investigation revealed that on February 24,2015, at approximately 1519 hours, two alarmswere activated. Upon their arrival, respondingstaff found two broken windows and inmateRamirez lying on the floor bleeding from a headwound. The occupants of Room 13 were escortedto the dayroom for interviews as to who hadbroken the windows, and were released back totheir room, while the occupants of Room 14 wereplaced in restraints and escorted to the programoffice for medical evaluations and urinalysistesting (UA). However, there are no records ofthose UA results from the lab. Due to inmateRamirez's injuries, she was taken to theTreatment and Triage area (TTA) where shereceived staples to the back of her head.Defendant interviewed inmate Ramirez upon herreturn and during the interview, inmate Ramirezinitially stated she had fainted from distress dueto hearing bad news from home. Then shechanged her story, stating that she slipped off hertop bunk. Then, she (Ramirez) stated that she hadbeen drinking alcohol and fell off her bunk.

	Plaintiff's Undisputed Facts	Evidence10
8.	As to the objective, Plaintiff argues that giveninmate Ramirez's inconsistent and falsestatements, as well as the observation andstatement from Defendant himself, who statedthat he was convinced that Ramirez had fallen offher bunk, Seamons v. Snow, 206 F.3d 1021, 1026(10th Cir. 2000), the investigation and evidenceshow inconsistent statements from bothDefendant and inmate Ramirez.
9.	Investigation and confidential sources four andfive (4-5) are inmate Ramirez and inmateMontford [who] stated that Plaintiff used a lockand struck inmate Ramirez in the head. However,within months of investigation, there was never alock found.
10.	Investigative Employee Officer Orozco wasassigned in accordance with California Code ofRegulations, Title 15, section 3315(d)(v)(A).However, officer Orozco never conducted aninterview with Plaintiff or Plaintiff's witnesses, asDefendant claims.
11.	Plaintiff had refused the first InvestigativeEmployee (IE) and was appointed correctionalofficer Valencia as her IE, who conducted allinterviews with Plaintiff and her witnesses duringinterviews which extended into the 9:30pm count,so Plaintiff had to be out-counted to complete theinterviews.
12.	After Officer Valencia had completed theinterviews, then Officer Orozco came toPlaintiff's cell door through the window andinformed Plaintiff that Defendant removedOfficer Valencia and appointed him as Plaintiff'sIE, and that was the extent of any conversationbetween Officer Orozco and Plaintiff.
13.	There were never five (5) confidential sourceswho stated that Plaintiff was the one who attackedinmate Ramirez, because three (3) of the five (5)are Plaintiff, Ruiz, and Rico, with the other twobeing Ramirez and Montford.

	Plaintiff's Undisputed Facts	Evidence10
14.	Madera County Criminal Conviction.On August 11, 2015, Plaintiff was given a pleadeal for the February 24, 2015 incident, of amisdemeanor and sentenced to 3 days of timeserved. However, Plaintiff pleaded guilty underdistress and out of fear, because inmate Ruiz hadto parole to the Madera County Jail when a holdwas placed on her due to Defendant's referral ofRuiz for criminal charges without reading her aMiranda warning. The facts and evidence clearlyshow that Defendant had written up Ruiz only fora "fight," which is not a criminal charge. SoPlaintiff was truly experiencing a great deal ofdistress and fear because she felt there was noway she could receive a fair trial, especially sinceDefendant got away with [illegible] chargingRuiz, and no one, even the courts, noticed. Hewent forward and charged inmate Ruiz with abattery w/a weapons charge. So Plaintiff took thedeal against her attorney's advice out of distress,fear, worry and agony as to what would happen toher and her future.
15.	Plaintiff's Allegations.On February 24, 2015, an incident occurred inPlaintiff's room between a couple of lovers. Thebattery between inmate Montford and inmateRamirez continued through to the next day. Onthe first day of the incident, February 24, 2015,when Ramirez received staples, and while thewhole Room 14 was still in the program office,Plaintiff informed Defendant that the room wouldlike to be interviewed as to how inmate Ramirezreceived her injuries. Defendant told Plaintiffthat he was convinced that Ramirez received herinjuries by falling off the bunk. Plaintiff theninformed Defendant that Ramirez's statement wasnot true and Defendant still refused to interviewthe room.
16.	The next day after the second battery Plaintiffwent to her housing officer S.D. Martinez andinformed him that inmate Ramirez was beingabused by her lover, inmate Montford, and he

	Plaintiff's Undisputed Facts	Evidence10
	informed Plaintiff to take it to Sgt. Flores.Plaintiff did, and Flores told her that he could notdo anything about it because it did not happen onhis watch (2nd watch). So Plaintiff went toFlores's boss, Sgt. Rubalcaba, and informed himof the battery. Sgt. Rubalcaba also told Plaintiffthat he could not do anything because it did nothappen on his watch (2nd watch).
17.	So Plaintiff waited until 3rd watch and went tospeak with Defendant again and informed himthat he should check on inmate Ramirez becauseshe was being battered by her lover inmateMontford and that is how Ramirez had sustainedthe injuries to her head and the new injuries.Defendant still informed Plaintiff that he wasconvinced that Ramirez had fallen off her bed.
18.	Plaintiff then informed Defendant that she[Plaintiff] would take this incident to the nextlevel. Bibbs v. Early, 541 F.3d 267 (5th Cir.2008). Under 42 U.S.C. § 1983. Only then didDefendant place inmate Montford inadministrative segregation for battery on inmateRamirez. Then on February 26, 2015, inmateMontford was released from administrativesegregation (ASU), and Plaintiff was placed inASU for the same battery that she broke her neckto report. Plaintiff was seeking protection fromunsafe living conditions - protected conduct.Maben v. Thelen, 887 F.3d 252 (2018).

10 Plaintiff has not supported her Undisputed Facts by citing to any materials in the record.

IX. PLAINTIFF'S ARGUMENTS

Plaintiff's evidence includes her allegations in the Second Amended Complaint, the declaration of inmate Sondra Slater (ECF No. 46 at 58), the declaration of inmate Toya Lee (ECF No. 46 at 59), and Plaintiff's prison records.

Plaintiff argues that the undisputed facts show that her claims are not barred under the favorable termination doctrine in Heck, and that Heck is not an inappropriate case to support a First Amendment retaliation claim. Plaintiff asserts that the retaliation caused her extreme distress when she was denied parole after being incarcerated for 25 years. Plaintiff asserts that she is in the process of contesting her RVR to be overturned via a writ of habeas corpus and is currently awaiting a ruling. Plaintiff contends that once the RVR is overturned there will be a substantial causal relationship between the protected activity and the adverse action. Plaintiff asserts that she pleaded guilty while under total distress, fear, and agony, but that she has new evidence to present that refutes her charges as to the RVR which will meet the third element of her retaliation claim.

As to the declarations of Senior Deputy District Attorney Rachel Cartier and J. Smith, submitted by Defendant, Plaintiff argues they are not credible because "co-workers within an organization have the probability to cover up for one another." (ECF No. 48 at 1:18-22; ECF No. 49 at 1:18-22.) Plaintiff states that she pleaded guilty to the false charges so quickly, without a preliminary hearing, as District Attorney Cartier stated because the courts dropped the charges to a misdemeanor with 3 days' time served, and Plaintiff was fearful that she would not receive a fair jury trial. Plaintiff also states that she suffered the effects of Defendant's retaliation by being denied parole on December 20, 2017 and getting a 5-year roll over, all due to Defendant Amezcua's false report against her.

X. DISCUSSION

Defendant argues that Plaintiff's retaliation claim against Defendant Amezcua is barred by the favorable termination rule, also known as the Heck bar. He argues that because Plaintiff was convicted of a criminal misdemeanor, and forfeited 181 days of credit through institutional discipline for the same conduct that she bases her retaliation claim upon, her claim is barred.¹¹ A state prisoner cannot challenge the fact or duration of his/her confinement in a Section 1983 action; his/her sole remedy lies in habeas corpus relief. Wilkinson v. Dotson, 544 U.S. 74, 78 (2005). Often referred to as the favorable termination rule or the Heck bar, this exception to § 1983's otherwise broad scope applies whenever state prisoners "seek to invalidate the duration of their confinement-either directly through an injunction compelling speedier release or indirectly through a judicial determination that necessarily implies the unlawfulness of the State's custody." Wilkinson, 544 U.S. at 81; Heck, 512 U.S. at 486-487; Edwards, 520 U.S. at 644. Thus, "a state prisoner's [Section] 1983 action is barred (absent prior invalidation)—no matter the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings)—if success in that action would necessarily demonstrate the invalidity of confinement or its duration." Id. at 81-82.¹²

11 Defendant requests that the court take judicial notice of the court filings and orders in the Superior Court of California. (ECF No. 38.) The court may take judicial notice of court records and administrative records. Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n.1 (N.D. Cal. 1978), aff'd, 645 F.2d 699 (9th Cir.), cert. denied, 454 U.S. 1126 (1981); Fed. R. Evid. 201 (a court may take judicial notice of facts that are capable of accurate determination by sources whose accuracy cannot reasonably be questioned). Therefore, Defendant's request for the court to take judicial notice is granted.

12 It's instructive to note however, that if the RVR decision were the only finding against Plaintiff for the battery of inmate Ramirez, and had she not been convicted of a corresponding misdemeanor offense, there is a line of cases following Ramirez v. Galaza, 334 F.3d 850, which could apply to find that Plaintiff's case is not necessarily barred by Heck. Moreover, state prisoners can bring 1983 actions when their lawsuits do not, in effect, collaterally attack the duration of their confinement nor a conviction—for instance, when a prisoner is serving a life term—as it appears Plaintiff is in the case at bar. Moreover, if success in a 1983 lawsuit does not cause an immediate release or a shorter stay in prison, the Heck bar does not apply. But given the facts of the instant case a discussion on this point is merely academic. --------

The Heck bar also applies in the prison disciplinary context if the "defect complained of by [Plaintiff] would, if established, necessarily imply the invalidity of the deprivation of [her] good-time credits[,]" Edwards, 520 U.S. at 646; Nonnette v. Small, 316 F.3d 872, 875 (9th Cir. 2002), and if the restoration of those credits "necessarily" would "affect the duration of time to be served," Muhammed v. Close, 540 U.S. 749, 754 (2004) (per curiam). See also Nettles v. Grounds, 830 F.3d 922, 929 n.4 (9th Cir. 2016) (en banc) ("Heck applies only to administrative determinations that 'necessarily' have an effect on 'the duration of time to be served.'" (citations omitted)); Ramirez v. Galaza, 334 F.3d 850, 856 (9th Cir. 2003) ("[T]he applicability of the favorable termination rule turns solely on whether a successful § 1983 action would necessarily render invalid a conviction, sentence, or administrative sanction that affected the length of the prisoner's confinement.").

The defendant has the burden of demonstrating that Heck bars a plaintiff's Section 1983 claim. See Sandford v. Motts, 258 F.3d 1117, 1119 (9th Cir. 2001). "[I]f a criminal conviction arising out of the same facts stands and is fundamentally inconsistent with the unlawful behavior for which section 1983 damages are sought, the 1983 action must be dismissed." Smith v. City of Hemet, 394 F.3d 689, 695 (9th Cir. 2005) (en banc) (quoting Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 1996)). "In evaluating whether claims are barred by Heck, an important touchstone is whether a § 1983 plaintiff could prevail only by negating 'an element of the offense of which he has been convicted.'" Cunningham v. Gates, 312 F.3d 1148, 1153-54 (9th Cir. 2002) (quoting Heck, 512 U.S. at 487 n.6). Thus, a plaintiff's claims are barred when they depend on a theory that calls into question whether she committed the offense for which she was convicted.

Plaintiff argues that her claim is not Heck-barred because Defendant Amezcua's RVR was entirely false. That the events did not happen as Defendant Amezcua described them in the RVR, nor as they were found in the criminal or institutional disciplinary proceedings. Plaintiff argues that she pleaded guilty against the advice of her counsel because the courts reduced the charges to a misdemeanor and she was under duress and fearful that she would not receive a fair jury trial. Plaintiff does not dispute that she has not overturned her criminal conviction or disciplinary punishment, but contends that she is in the process of contesting her RVR via a writ of habeas corpus.

Defendant has met his burden to show that the Heck bar applies here, and Plaintiff's arguments confirm that her claim is barred. According to Plaintiff's opposition, her theory of liability against Defendant Amezcua in this § 1983 action is that Defendant Amezcua made a false report against her because she was attempting to report a battery between two inmates.

Even though claim preclusion does not clearly apply here, the effect of a finding that Plaintiff's RVR decision is invalid would cause an inconsistent decision. Plaintiff was found guilty in her state criminal proceeding based on the same facts relied upon at the RVR hearing. "By precluding parties from contesting matters that they have had a full and fair opportunity to litigate," the doctrines of claim preclusion and issue preclusion "foster reliance on judicial action by minimizing the possibility of inconsistent decision." Taylor v. Sturgell, 553 U.S. 880, 892 (2008) (internal quotation marks and citation omitted.) Here, Plaintiff states that she pleaded guilty to battery in state court. (PUF No. 14.) The Madera County District Attorney filed felony charges against Plaintiff arising out of the February 24, 2015 incident, to which Plaintiff pleaded guilty and stipulated to the factual basis of the charges. (DUF 15-18.) Neither the RVR nor the criminal conviction have been overturned. (DUF 13, 19.)

A finding in Plaintiff's favor in this case would necessarily imply the invalidity of Plaintiff's criminal conviction and disciplinary punishment as Plaintiff's theory depends on a finding that the charges against her were false. Therefore, the court finds that Plaintiff's First Amendment retaliation claim against Defendant Amezcua is barred by Heck because a favorable termination on the retaliation claim would necessarily imply the invalidity of her misdemeanor conviction, which has not been overturned. As a result, the court recommends that Defendant's motion for summary judgment be granted, and the claim against Defendant Amezcua be dismissed, without prejudice. See Washington v. Los Angeles Cty. Sheriff's Dep't, 833 F.3d 1048, 1055 (9th Cir. 2016) (Heck dismissal is made without prejudice); Belanus v. Clark, 796 F.3d 1021, 1025 (9th Cir. 2015) (same).

XI. CONCLUSION AND RECOMMENDATIONS

The court finds that Plaintiff's claims in this case are barred by the favorable termination rule of Heck v. Humphrey, and this case should be dismissed without prejudice.

Based on the foregoing, it is HEREBY RECOMMENDED that:

1. Defendant Amezcua's motion for summary judgment, filed on January 17, 2019, (ECF No. 37), be GRANTED;

2. Plaintiff's claims against Defendant Amezcua for retaliation in violation of the First Amendment be DISMISSED, without prejudice, as barred by the favorable termination rule of Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L. Ed. 2d 383 (1994); and

3. The Clerk of Court be directed to close this case.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen (14) days from the date of service of these findings and recommendations, any party may file written objections with the court. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten (10) days after the date the objections are filed. The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson, 772 F.3d at 838-39 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED.

Dated: April 1 , 2019

/s/ Gary S. Austin

UNITED STATES MAGISTRATE JUDGE