Opinion
No. C 02-1333 WHA (PR), (Doc 15)
September 15, 2003
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This is a pro se section 1983 civil rights action filed by a state prisoner. Defendants have moved to dismiss or for summary judgment. Plaintiff has filed an opposition and defendants a reply. The matter is submitted.
STATEMENT
The facts are undisputed. The only question in this case is the legal effect of those facts.
When a fight broke out on the yard, plaintiff was seen speaking through the fence to an inmate named Farmer. Plaintiff then threw a walking cane over the fence to Fanner, presumably so Farmer could use it in the melee. A prison disciplinary committee convicted plaintiff of violating a prison rule against conspiracy to commit battery on an inmate. Plaintiff lost 180 days of good time credits as a result of his conviction of violating the disciplinary rule. This finding is not at issue in this case.
In his complaint plaintiff alleged that defendants, members of an "Institutional Classification Committee" ("ICC") which reviewed his housing classification, were not satisfied with the conviction for violating a disciplinary rule and "changed" the charge to conspiracy to commit an assault on an inmate and, without his having been found guilty of violating any rule against conspiracy to commit assault, ordered that he serve a fifteen month term in the security housing unit ("SHU"). The exhibits supplied by defendants with their motion for summary judgment show that the committee concluded plaintiff had been found guilty of violating a rule against conspiracy to commit assault, not the conspiracy to commit battery charge he actually was convicted of, and that because of that conviction he should serve a fifteen month SHU term.
Defendants suspended the SHU term at their next monthly review of plaintiff s status, before he began to serve it, because he had already been detained in administrative segregation for nearly as long as the minimum time he would have had to serve in the SHU under the committee's decision. Although the SHU term was suspended, plaintiff asks that it be expunged from his records because it affects the institution to which he can be transferred.
The record does not show why the committee considered the length of the administrative segregation term to be relevant to whether plaintiff should be required to serve the SHU term.
DISCUSSION
A. Motion to dismiss
1. Standard
"`[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief" Terracom v. Valley National Bank, 49 F.3d 555, 558 (9th Cir. 1995) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Review is limited to the contents of the complaint: Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994), including documents physically attached to the complaint or documents the complaint necessarily relies on and whose authenticity is not contested. Lee v. County of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). In addition, the court may take judicial-notice of facts that are not subject to reasonable dispute. See id. at 688 (discussing Fed.R.Evid. 201(b)). Allegations of fact in the complaint must be taken as true and construed in the light most favorable to the non-moving party. Spreewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Pro se pleadings must be construed liberally on a defendant's motion to dismiss for failure to state a claim. Ortez v. Washington County Oregon, 88 F.3d 804, 807 (9th Cir. 1996).
2. Analysis
a. Constitutional violation
Defendants assert that plaintiff has failed to state a claim because there he has no liberty interest in a particular classification; in the absence of such a liberty interest, failure to afford him due process would not be a violation of the constitution. It may be true that there is no liberty interest in a particular classification arising directly from the Fourteenth Amendment, but that does not rule out the possibility that such a liberty interest might be created by state law. Of the cases defendants cite for their contention that there can be no liberty interest in classification, the courts in Moody v. Daggett and Hernandez v. Johnston noted that there was no statute which might limit the authorities' discretion, and Hoptowit v. Ray involved an Eighth Amendment claim, not a due process claim. Moody, 429 U.S. 78, 88 n. 9 (1976);Hernandez, 833 F.2d 1316, 1318 (1987); Hoptowit, 682 F.2d 1237, 1255-56 (1982).
The law for determining when state law creates a protected liberty interest is regrettably complex, but may be summarized thus: prisoners have a liberty interest arising from state law if (1) the state law contains (a) "substantive predicates" and (b) "mandatory language,"Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 461-64 (1989); and (2) the deprivation is of "real substance," meaning that the deprivation involves (a) "atypical and significant hardship . . . in relation to the ordinary incidents of prison life," id. at 484, or (b) state action that "will inevitably affect the duration of [a] sentence,"Sandin v. Conner, 515 U.S. 472, 477-87(1995). See, e.g., Bonin v. Calderon, 77 F.3d 1155, 1161-62 (9th Cir. 1996) (looking first to statutory language and finding no state created constitutionally protected interest in choosing method of execution because state statute does not guarantee prisoner choice), and next, whether the deprivation is one of "real substance," Jones v. Moran, 900 F. Supp. 1267, 1273-74 (N.D. Cal. 1995) (Wilken, J.) (adopting Justice Breyer's two-prong analysis of Sandin majority opinion). But cf. Neal v. Shimoda, 131 F.3d 818, 829 (9th Cir. 1997) (looking only to whether the deprivation suffered is an atypical and significant hardship on the inmate, and not to statutory language); Duffy v. Riveland, 98 F.3d 447, 457 (9th Cir. 1996) (implying that Sandin reformulated working definition of liberty interest to include only "real substance" prong); Mitchell v. Dupnik, 75 F.3d 517, 522 (9th Cir. 1996) (same).
It is not possible to tell from the face of the complaint that no state law meets this standard. It thus does not "`appear beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."' Terracom, 49 F.3d at 558 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). This ground for defendants' motion to dismiss is without merit.
b. Edwards v. Balisok
Defendants contend that plaintiffs claim is barred by Edwards v. Balisok. 520 U.S. 641 (1997). In Edwards the Court held that plaintiffs claim that his due process rights were violated in a disciplinary hearing was not cognizable if "the nature of the challenge to the procedures [is] such as necessarily to imply the invalidity of the judgment." Id. at 520 U.S. at 645. The plaintiff in Edwards lost good time credits as a consequence of the allegedly-unconsitutional disciplinary hearing. Id. at 643. The heart of Edwards, and the case upon which it is based, Heck v. Humphrey, 512 U.S. 641, 643 (1994), is that a prisoner may not use a section 1983 suit, even one in which only damages are requested, to attack the fact of his or her incarceration or the length of it unless the prisoner first gets that conviction or incarceration set aside by another means — most usually, state or federal habeas proceedings.Edwards, 520 U.S. at 643, 648; Heck, 512 U.S. at 643. In this case plaintiff did not lose good — time credits, nor is there any other reason to suspect that his assignment to the SHU had a direct effect upon the fact of his incarceration or the length of it. Defendants' contention is without merit.
B. Motion for summary judgment
1. Standard
Summary judgment is proper where the pleadings, discovery and affidavits show that there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id.
The moving party for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine issue of material fact.Celotex Corp. v. Cattrett 477 U.S. 317, 323 (1986); Nissan Fire Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). When the moving party has met this burden of production, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, set forth specific facts showing that there is a genuine issue for trial — Fed.R.Civ.P. 56(e). If the nonmoving party fails to produce enough evidence to show a genuine issue of material fact, the moving party wins. Nissan, 210 F.3d at 1102.
2. Analysis
Among other things, defendants contend that plaintiffs due process rights were not violated. Plaintiffs claim amounts to a contention that there was not "some evidence" to support defendants' conclusion that he had been found guilty of conspiracy to commit an assault. He is correct; he was found guilty of conspiracy to commit battery, not assault. The question is whether it matters.
The Fourteenth Amendment provides that one may not be deprived of "life, liberty or property" without due process of law. United States Constitution, Amen. XIV. Only "liberty" is at issue here.
As noted above in the discussion of defendants' motion to dismiss, prisoners have a liberty interest arising from state law if (1) the state law contains (a) "substantive predicates" and (b) "mandatory language,"Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 461-64 (1989); and (2) the deprivation is of "real substance," meaning that the deprivation involves (a) "atypical and significant hardship . . . in relation to the ordinary incidents of prison life," id. at 484, or (b) state action that "will inevitably affect the duration of [a] sentence,"Sandin v. Conner 515 U.S. 472, 477-87 (1995). Defendants do not contend that being placed in the SHU is not a deprivation of "real substance," so that portion of the formulation need not be discussed further. The argument thus boils down to a statutory one, whether the regulations give plaintiff a liberty interest in not being placed in the SHU for violating the rule against conspiracy to commit a battery.
Plaintiff relies upon the "SHU Assessment Chart" portion of the regulations regarding determinate SHU terms, Cal. Code Regs. tit. 15, § 3341.5(c)(9), which he correctly contends does not mention the offense of "battery on an inmate." It speaks only in terms of "assault on an inmate" and one offense not relevant here.
It also provides that "any inmate who conspires to commit any of the offenses above shall receive the term specified for that offense." Cal. Code Regs. tit. 15, § 3341.5(c)(9)(L). Thus it is clear that had plaintiff conspired to commit an assault, the chart would provide a "typical term."
Plaintiff is, however, incorrect that he has a due process right not to be committed to the SHU except for those offenses specified in the SHU Assessment Chart. The regulation governing determinate SHU terms says that "the term shall be established by the Institutional Classification Committee (ICC) using the standards in this section, including [the SHU term assessment chart and a number of other factors]." Section 3341.5(1)(c)(2)(B)(1). This portion of the regulation contains mandatory language ("shall") but it is only a simple command that the committee use the chart and the other factors listed — it does not contain a "substantive predicate." The regulation does not require the committee to determine whether a certain fact exists ("X") before a certain consequence ("Y") may follow. That is, there is no "if X then Y" formulation. This part of the regulation is simply a procedural guideline; it tells the committee how to do something, in this case how to determine the length of a SHU determinate term. Procedural guidelines alone do not create a liberty interest. Smith v. Noonan, 992 F.2d 987, 989 (9th Cir. 1993) (provision that merely raises procedural requirements without substantive predicates, even if mandatory, not enough). That is, plaintiff does not have a liberty interest in not being placed in the SHU unless he committed one of the offenses listed in the SHU assessment chart.
There is, however, a regulation which contains the necessary substantive predicate and mandatory language. Section 3341.5 provides: "An inmate whose conduct endangers the safety of others or the security of the institution shall be housed in a SHU." That is, plaintiff has a liberty interest in not being placed in a SHU unless his conduct endangered others or the security of the institution, which in turn means that he had a right to due process in the prison's determination that he engaged such conduct. That due process right arguably includes a right not to be found to have done so without "some evidence" to support the finding. See Superintendent v. Hill 472 U.S. 445, 454 (1985) (disciplinary proceedings); Toussaint v. McCarthy, 801 F.2d 1080, 1104 (9th Cir. 1986) (holding that Hill "some evidence" standard applies to administrative segregation decisions). In this case there was indeed substantial evidence that plaintiff engaged in conduct that endangered others, and possibly the security of the institution, namely the undisputed evidence that he conspired to commit a battery on another inmate. In short, the plaintiffs due process rights were not violated.
CONCLUSION
Defendants' motion to dismiss (doc 15-1) is DENIED. Their motion for summary judgment (doc 15-2) is GRANTED. This case is dismissed with prejudice. The clerk shall close the file.
JUDGMENT
The Court has granted defendants' motion for summary judgment. Judgment is entered in favor of defendants and against plaintiff. Plaintiff shall take nothing by way of his complaint.IT IS SO ORDERED.