Opinion
Case No. CV 20-4490-PA (KK)
04-02-2021
LANCE WILLIAMS, Plaintiff, v. R. FARLEY, ET AL., Defendant(s).
FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Final Report and Recommendation is submitted to the Honorable Percy Anderson, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
I.
INTRODUCTION
Plaintiff Lance Williams ("Plaintiff"), proceeding pro se and in forma pauperis, filed a Second Amended Complaint ("SAC") pursuant to 42 U.S.C. § 1983 ("Section 1983") against correctional officers R. Farley, D. Arebalo, M. Williams, J. Graves, and D. Davis ("Defendants") alleging violations of Plaintiff's First, Eighth, and Fourteenth Amendment rights. For the reasons discussed below, the Court recommends dismissing all of Plaintiff's Eighth Amendment "threat to safety" claims against defendants Farley, Arebalo, and Graves, and some of Plaintiff's Fourteenth Amendment due process claims against defendants Farley, Arebalo, Williams, and Davis with prejudice and without leave to amend.
II.
PROCEDURAL HISTORY
A. COMPLAINT
On May 19, 2020, Plaintiff, who is currently an inmate at Deuel Vocational Institution ("DVI") but at the time was confined at California Men's Colony - East ("CMC"), constructively filed a Complaint against Defendants, who are all correctional officers at CMC, in their individual and official capacities. ECF Docket No. ("Dkt.") 1. Plaintiff alleged (1) a First Amendment retaliation claim against Defendants; (2) an Eighth Amendment excessive force claim against defendant Farley; (3) an Eighth Amendment "threat to safety" claim against defendants Farley, Arebalo, and Graves; and (4) a Fourteenth Amendment due process claim against defendants Williams, Graves, and Davis. Id. at 3-4.
Under the "mailbox rule," when a pro se prisoner gives prison authorities a pleading to mail to court, the court deems the pleading constructively "filed" on the date it is signed. Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010); see Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009) (stating the "mailbox rule applies to Section 1983 suits filed by pro se prisoners").
On August 10, 2020, the Court dismissed the Complaint with leave to amend, finding (1) the Eleventh Amendment bars claims for monetary damages against Defendants in their official capacity; (2) Plaintiff failed to state certain First Amendment retaliation claims against defendants Farley and Davis; (3) Plaintiff failed to state an Eighth Amendment "threat to safety" claim against defendants Farley, Arebalo, and Graves; and (4) Plaintiff failed to state a Fourteenth Amendment due process claim against defendants Williams, Graves, and Davis. Dkt. 8.
B. FIRST AMENDED COMPLAINT
On September 8, 2020, Plaintiff filed a First Amended Complaint ("FAC") against defendants Farley and Graves in their individual capacity and defendants Arebalo, Williams, and Davis in their individual and official capacities. Dkt. 13. While not entirely clear as to which claims Plaintiff sought to raise against each defendant, it appeared Plaintiff alleged the following claims: (1) a First Amendment retaliation claim against defendants Farley, Williams, and Davis; (2) an Eighth Amendment excessive force claim against defendant Farley; (3) an Eighth Amendment "threat to safety" claim against defendants Farley, Arebalo, and Graves; and (4) a Fourteenth Amendment due process claim against defendants Farley, Arebalo, Williams, and Davis. Id.
On October 13, 2020, the Court dismissed the FAC with leave to amend, finding (1) Plaintiff failed to state an Eighth Amendment "threat to safety" claim against defendants Farley, Arebalo, and Graves; and (2) Plaintiff failed to state a Fourteenth Amendment due process claim against defendants Farley, Arebalo, Williams, and Davis. Dkt. 16. The Court specifically cautioned Plaintiff, "if Plaintiff asserts a claim in his Second Amended Complaint that has been found to be deficient without addressing the claim's deficiencies, then the Court, pursuant to the provisions of 28 U.S.C. § 636, ultimately will submit to the assigned district judge a recommendation that such claim be dismissed with prejudice for failure to state a claim." Id. at 14.
C. SECOND AMENDED COMPLAINT AND OBJECTIONS
On December 28, 2020, Plaintiff constructively filed the instant SAC. Dkt. 23, SAC. The SAC sues defendants Farley and Graves in their individual capacity and defendants Arebalo, Williams, and Davis in their individual and official capacities. Id. at 26-27. The SAC is nearly identical to the FAC, but includes a "Second Amended Complaint 'Supplemental' Clarification of Claims." Id. at 1-23.
On February 16, 2021, the Court issued a Report and Recommendation ("Original Report and Recommendation") recommending certain claims from the SAC be dismissed with prejudice for failure to state a claim. Dkt. 24.
On March 23, 2021, Plaintiff filed Objections to the original Report and Recommendation. Dkt. 28.
The Court issues the instant Final Report and Recommendation addressing Plaintiff's Objections in Section II.D.2, footnote 2, and Section V below.
D. CLAIMS IN THE SAC
While again not entirely clear, the SAC appears to raise substantially the same claims presented in the FAC under four "Claim" headings, as follows: (1) multiple First Amendment retaliation claims against defendants Farley, Williams, Arebalo and Davis; (2) an Eighth Amendment excessive force claim against defendant Farley; (3) multiple Eighth Amendment "threat to safety" claims against defendants Farley, Arebalo, and Graves based on various threats; (4) multiple Fourteenth Amendment due process claims against defendants Farley, Arebalo, Williams, and Davis; and (5) a First Amendment free speech claim against defendant Farley.
1. Claim One
"Claim One" does not appear to allege any specific claims but appears to provide the following background factual allegations: On April 2, 2020, while at CMC, Plaintiff signed up for a 1:15 p.m. time slot to use the phone to call his attorney. SAC at 28. Shortly thereafter, Plaintiff "received a priority medical pass for 1:00 p.m." Id. Later that day, Plaintiff discovered defendant Farley had "scratched" Plaintiff's name off the phone list. Id. Plaintiff alleges he "couldn't contact his attorney" as a result of defendant Farley's actions. Id. Plaintiff questioned defendant Farley as to why his name was scratched off the list, and defendant Farley responded, "[C]onsider it payback for the many 602 appeal grievances you filed on me" and then stated Plaintiff's medical pass conflicted with the phone time. Id. Plaintiff questioned defendant Farley about "the policy that says officers are supposed to scratch names off," and defendant Farley "could not provide the policy." Id. Plaintiff then informed defendant Farley he "would be filing a 602 appeal grievance to address this policy and [defendant Farley's] actions." Id.
2. Claim Two
Claim Two appears to allege various claims regarding Plaintiff's Rule Violation Report ("RVR") and disciplinary hearing, specifically, (1) a First Amendment retaliation claim against defendant Farley for issuing an RVR and assaulting Plaintiff following the RVR hearing; (2) an Eighth Amendment excessive force claim against defendant Farley for assaulting Plaintiff after the RVR hearing; (3) a Fourteenth Amendment due process claim against defendant Farley for assaulting Plaintiff following the RVR hearing; (4) a First Amendment retaliation claim against defendant Arebalo for using threats to deter Plaintiff from filing an appeal of his RVR hearing determination; and (5) a First Amendment free speech claim for disciplining Plaintiff for "unlawful influence" when the conversation with defendant Farley was not coercive.
Plaintiff alleges that on April 6, 2020, defendant Farley violated Plaintiff's First Amendment rights by issuing a "serious" RVR, which cited Plaintiff for "unlawful influence" and noted "[Plaintiff's] threats [were] valid due to [Plaintiff] having filed staff complaints on [Farley] before." Id. at 29. Plaintiff alleges defendant Farley issued the RVR "strictly in retaliation for Plaintiff's threat to file a 602 appeal grievance about [the] phone issue." Id. As clarified in Plaintiff's Objections to the Original Report and Recommendation, Plaintiff also alleges defendant Farley infringed on Plaintiff's First Amendment right to free speech by improperly disciplining Plaintiff for "unlawful influence" based on their conversations on April 2, 2020 and the April 6, 2020 RVR. Dkt. 28 at 1-3; SAC at 29. Specifically, Plaintiff appears to argue the prison regulation as applied to Plaintiff by defendant Farley was unconstitutional because Plaintiff's statement was not threatening and the RVR was not related to a legitimate penological interest. Id.
A prison regulation that inhibits an inmate's First Amendment speech rights is "valid if it is reasonably related to legitimate penological interests." Shaw v. Murphy, 532 U.S. 223, 229 (2001) (citing Turner v. Safley, 482 U.S. 78, 89 (1987)). Prison authorities have "a legitimate penological interest in the consistent enforcement of prison rules and ... disciplining prisoners who attempt to coerce a guard into not enforcing prison rules is reasonably related to that interest." Hargis v. Foster, 312 F.3d 404, 409-10 (9th Cir. 2002). While the Ninth Circuit has held that such a "coercion regulation, on its face, satisfies the Turner test," a plaintiff may claim that the regulation was unconstitutional "as applied" when the content of the prisoner's speech did not actually "implicat[e] legitimate security concerns." Id. at 410.
Further, Plaintiff alleges labeling the RVR and classification as "serious" violated his Fourteenth Amendment due process rights because Plaintiff "does not have repeated offenses for this charge" and defendant Farley's "dishonest" allegations in the RVR are a "clear abuse of discretion." SAC at 29.
On April 14, 2020, Plaintiff alleges he appeared at a hearing regarding the RVR conducted by defendant Arebalo as the Senior Hearing Officer. Id. at 31. Plaintiff alleges defendant Arebalo found him guilty of the RVR, but claims defendant Arebalo violated his Fourteenth Amendment due process rights because the "preponderance of evidence standard was not met" because the RVR is unreliable hearsay and defendant Farley's testimony was also unreliable. Id. at 30. Plaintiff further alleges defendant Arebalo violated his Fourteenth Amendment due process rights because defendant Arebalo was biased, asked "non-impartial" questions, and denied Plaintiff's request for a relevant and material witness (i.e., a facility nurse) who would have testified Plaintiff was done with his medical appointment before 1:15 pm. Id. at 32-33.
After the hearing was suspended for the day, Plaintiff alleges defendant Farley called Plaintiff into a dark office, told Plaintiff to close the door, and "jumped up and attack[ed] [Plaintiff], grabbing his neck[,] squeezing it[,] and punching Plaintiff in [his] stomach," and stated "'if you file any more appeals on me or even think about filing a lawsuit[,] and I'll know because I talk to law library staff[,] I'll make sure you end up in the hole, I'll place a mysterious kite on you." Id. at 33. Plaintiff alleges the "assault and threats" violated his First, Eighth, and Fourteenth Amendment rights. Id. at 33-34. Plaintiff clarifies his Eighth Amendment claim against defendant Farley is not based on the verbal threat about the "mysterious kite," but rather that "the chronology of events as well as the threat accompanied by assault place[d] Plaintiff in imminent danger of serious physical injury and made his administrative remedies unavailable[.]" Id. at 34.
On April 15, 2020, when the hearing resumed, defendant Arebalo found Plaintiff guilty of the RVR. Id. at 34. Plaintiff alleges defendant Arebalo informed Plaintiff of his right to appeal the decision, but stated, "[I]f I was you[,] I wouldn't[;] it may get you fucked over and hurt." Id. Plaintiff alleges defendant Arebalo's threat constituted retaliation because it "deprived Plaintiff of his ability to invalidate the RVR" and "chill[ed] Plaintiff's First Amendment protected conduct" in challenging the RVR and demonstrated defendant Arebalo was deliberately indifferent to Plaintiff's health and safety in violation of Plaintiff's Eighth Amendment rights. Id. at 35.
3. Claim Three
Claim Three appears to allege a First Amendment retaliation claim against defendant Farley related to Plaintiff's administrative segregation placement. Specifically, Plaintiff alleges on April 24, 2020, he was taken to administrative segregation ("ad-seg") because a note was found in the prison mail system stating Plaintiff was "going to be stabbed due to him filing a lot of 602 appeal grievances." Id. at 36. Plaintiff alleges he "has personal knowledge this entire process was orchestrated and conjured up by [defendant] Farley" and other officers. Id. Plaintiff further alleges that on April 28, 2020, while he was in ad-seg, defendant Farley came to his door and said, "I told you we would get you and if you think about writing any 602 appeals or lawsuits again I can still have you cut up back here." Id. Plaintiff alleges defendant Farley then "pointed at him as if to shoot a gun" and walked away. Id. Plaintiff alleges this "chronology of events" shows defendant Farley acted in retaliation "due to Plaintiff's engagement in constitutionally protected conduct" and "chilled Plaintiff's First Amendment activity." Id. ///
4. Claim Four
Claim Four alleges various claims against defendants Williams, Graves, and Davis related to Plaintiff's classification hearing, specifically, (1) a First Amendment retaliation claim against defendant Williams for rescinding his classification status; (2) a Fourteenth Amendment due process claim against defendant Williams regarding Plaintiff's hearing; (3) an Eighth Amendment claim against defendant Graves based on a threat; (4) a First Amendment retaliation claim against defendant Davis for transferring Plaintiff to a new facility; and (5) a Fourteenth Amendment due process claim against defendant Davis related to Plaintiff's transfer.
First, as to defendant Williams, Plaintiff alleges that at his April 30, 2020 "annual" hearing, defendant Williams, as "acting Captain," rescinded Plaintiff's "level 1 override endorsement" that Plaintiff's previous counselor had approved. Id. at 37. Plaintiff alleges this constituted retaliation in violation of the First Amendment because before the hearing, defendant Williams came to Plaintiff's door in ad-seg and said he would "rescind the level 1 override because Plaintiff filed too many grievances" and because Plaintiff filed a staff complaint grievance against defendant Farley. Id. at 37. In addition, Plaintiff alleges defendant Williams violated Plaintiff's Fourteenth Amendment due process rights when he "refused to address" Plaintiff's upcoming mandatory parole review and because (a) he refused to provide a staff assistant to help Plaintiff prepare for the hearing, but falsely documented that defendant Graves provided assistance; (b) Plaintiff did not meet with a staff assistant 24 hours before the hearing; and (c) Plaintiff was not given 72 hours' notice of the hearing. Id. at 38.
Second, as to defendant Graves, Plaintiff appears to allege an Eighth Amendment claim. Plaintiff alleges he filed a Form 22 inmate request with defendant Graves requesting information "about his involvement with [Plaintiff's] hearing," but defendant Graves responded to Plaintiff by stating, "don't involve me in your 602 and lawsuit shit[.] I'm in control of your life back here . . . it's nothing for you to end up hanging you see what happen[ed] to Epstein." Id. at 39. Plaintiff alleges this "comment (threat) placed Plaintiff in imminent danger of serious physical injury." Id.
Plaintiff clarifies he "is not claiming Graves violated due process [but that] defendant Williams did using Graves' name, nor is the Plaintiff making an 8th Amendment threat to safety claim unless [the] Court feels Graves' threat meets criteria." Id. at 39.
Third, as to defendant Davis, Plaintiff alleges he "endorsed [Plaintiff] to a facility far from Plaintiff's home county" as part of a "campaign of harassment" and retaliation. Id. at 40. Plaintiff also alleges that "recently[,] after the initial filing of this complaint," he informed defendant Davis he had enemy and safety concerns at DVI, where he was endorsed to be transferred, and defendant Davis said, "I've been told all about you you['re] getting transferred to DVI a nonprogramming facility since you like to file a lot of grievances." Id. Plaintiff alleges defendant Davis violated Plaintiff's Fourteenth Amendment due process rights by failing to investigate Plaintiff's safety concerns. Id.
Plaintiff seeks punitive, compensatory, and nominal damages as well as "injunctive relief against future infringement of [Plaintiff's] [First] Amendment rights and for expungement of unlawful influence RVR from [Plaintiff's] C-file," deletion of four classification points, and an order that Plaintiff be "taken to classification and all available credits [be] backdated as of [Plaintiff's] April 30, 2020 classification." Id. at 41.
Plaintiff makes clear he is not seeking monetary relief from the defendants sued in their official capacity, only injunctive relief. Id. at 41.
III.
STANDARD OF REVIEW
Where a plaintiff is proceeding in forma pauperis, a court must screen the complaint under 28 U.S.C. § 1915 and is required to dismiss the case at any time if it concludes the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998).
Under Federal Rule of Civil Procedure 8 ("Rule 8"), a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). In determining whether a complaint fails to state a claim for screening purposes, a court applies the same pleading standard as it would when evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012).
A complaint may be dismissed for failure to state a claim "where there is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory." Zamani v. Carnes, 491 F.3d 990, 996 (9th Cir. 2007). In considering whether a complaint states a claim, a court must accept as true all of the material factual allegations in it. Hamilton v. Brown, 630 F.3d 889, 892-93 (9th Cir. 2011). The court, however, need not accept as true "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). Although a complaint need not include detailed factual allegations, it "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A claim is facially plausible when it "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The complaint "must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively." Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
"A document filed pro se is 'to be liberally construed,' and a 'pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" Woods v. Carey, 525 F.3d 886, 889-90 (9th Cir. 2008). Liberal construction, however, should only be afforded to "a plaintiff's factual allegations," Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989), and a court need not accept as true "unreasonable inferences or assume the truth of legal conclusions cast in the form of factual allegations," Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003).
If a court finds the complaint should be dismissed for failure to state a claim, the court has discretion to dismiss with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000). Leave to amend should be granted if it appears possible the defects in the complaint could be corrected, especially if the plaintiff is pro se. Id. at 1130-31; see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). However, if, after careful consideration, it is clear a complaint cannot be cured by amendment, the court may dismiss without leave to amend. Cato, 70 F.3d at 1107-11; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009).
IV.
DISCUSSION
A. EIGHTH AMENDMENT THREAT TO SAFETY CLAIMS
To the extent Plaintiff seeks to allege an Eighth Amendment claim against defendants Farley, Arebalo, and Graves, based on "threats to safety," these claims are subject to dismissal.
1. Applicable Law
The Eighth Amendment protects prisoners from inhumane methods of punishment and from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (as amended). In order to state an Eighth Amendment claim, a plaintiff must "objectively show that he was deprived of something 'sufficiently serious'" and "make a subjective showing that the deprivation occurred with deliberate indifference to the inmate's health or safety." Foster v. Runnels, 554 F.3d 807, 812 (9th Cir. 2009) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)). "A mere threat may not state a cause of action" under the Eighth Amendment. Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (per curiam).
2. Analysis
Here, Plaintiff alleges that after physically assaulting Plaintiff, defendant Farley told Plaintiff "'if you file any more appeals on me or even think about filing any lawsuits . . . I'll make sure you end up in the hole, there may be a mysterious kite dropped on you." SAC at 33. Plaintiff also alleges defendant Arebalo advised Plaintiff not to appeal his RVR hearing determination and stated, "it may get you fucked over and hurt." Id. at 35. Plaintiff further alleges defendant Graves told Plaintiff, "it's nothing for you to end up hanging," and made references to "what happen[ed] to Epstein." Id. at 39. Plaintiff argues these "comment[s] (threats)" placed him in imminent danger of serious physical injury. Mere threats of harm, however, do not rise to the level of an Eighth Amendment violation. Gaut, 810 F.2d at 925; Ferguson v. Pagati, No. CV 12-00653-VBF (DTB), 2013 WL 3989426, at *5 (C.D. Cal. Aug. 1, 2013) (finding allegations of threats of physical violence, without more, are insufficient to state a claim under the Eighth Amendment).
Plaintiff further alleges these threats demonstrate his administrative remedies were "made unavailable." SAC at 1.
Accordingly, Plaintiff's Eighth Amendment "threat to safety" claims against defendants Farley, Arebalo, and Graves for verbal threats are subject to dismissal.
B. FOURTEENTH AMENDMENT DUE PROCESS CLAIMS
Plaintiff alleges a Fourteenth Amendment due process claim against defendants Farley, Arebalo, Williams, and Davis. As discussed below, these claims are subject to dismissal.
1. Applicable Law
The Due Process Clause of the Fourteenth Amendment protects individuals against deprivations of "life, liberty, or property." U.S. Const. amend. XIV, § 1. "A liberty interest may arise from the Constitution itself, by reason of guarantees implicit in the word 'liberty,' or it may arise from an expectation or interest created by state laws or policies." Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (citations omitted). Due process analysis proceeds in two steps: "We first ask whether there exists a liberty or property interest of which a person has been deprived, and if so we ask whether the procedures followed by the State were constitutionally sufficient." Swarthout v. Cooke, 562 U.S. 216, 219 (2011).
2. Analysis
a. Defendant Farley
Courts have held prisoners have "no constitutionally guaranteed immunity from being falsely or wrongly accused of conduct which may result in the deprivation of a protected liberty interest," but they do have "the right not to be deprived of a protected liberty interest without due process of law." Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986); see also Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989) (finding inmate's claims based upon falsity of charges brought by a prison counselor did not state a constitutional claim). To establish the deprivation of a protected liberty interest, however, a prisoner must allege an "atypical, significant deprivation in which a State might conceivably create a liberty interest." Sandin v. Conner, 515 U.S. 472, 486 (1995).
It is well established that inmates subjected to disciplinary action are entitled to certain procedural protections under the Due Process Clause but are not entitled to the full panoply of rights afforded to criminal defendants. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). A prisoner facing the loss of good time credits "must receive 1) advance written notice of the disciplinary charges; 2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and 3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action." Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985) (citing Wolff, 418 U.S. at 563-567). If the procedural protections required by due process are afforded, a prisoner's disciplinary proceeding cannot violate due process so long as "some evidence" supports the disciplinary decision. Hill, 472 U.S. at 455.
Here, Plaintiff alleges defendant Farley violated his due process rights by issuing a "serious RVR" when Plaintiff "does not have repeated offenses for this charge" and defendant Farley's "dishonest" allegations in the RVR are a "clear abuse of discretion." SAC at 39. Prisoners, however, have "no constitutionally guaranteed immunity from being falsely or wrongly accused of conduct which may result in the deprivation of a protected liberty interest." Freeman, 808 F.2d at 95. Accordingly, Plaintiff fails to state a due process claim against defendant Farley for falsely accusing him of a rule violation or falsely classifying the RVR as "serious."
b. Defendant Arebalo
Plaintiff alleges defendant Arebalo violated his due process rights by finding Plaintiff guilty of the rule violation without meeting the "preponderance of evidence" standard, and because defendant Arebalo was biased, asked "non-impartial" questions, and denied Plaintiff's request for a relevant, material witness. SAC at 30-40.
i. Fair Tribunal
First, a fair trial in a fair tribunal is a basic requirement of due process that applies in prison disciplinary proceedings. In re Murchison, 349 U.S. 133, 136 (1955); Wolff, 418 U.S. at 570-71. Fairness requires an absence of actual bias and of the probability of unfairness. In re Murchison, 349 U.S. at 136. "There is a presumption of honesty and integrity on the part of decision makers which may be overcome by evidence of a risk of actual bias or prejudgment based on special facts and circumstances." Burgess v. Rios, No. 1:12-CV-00544-AWI (SK), 2015 WL 3402933, at *6 (E.D. Cal. May 27, 2015), aff'd, 658 F. App'x 335 (9th Cir. 2016) (citing Withrow v. Larkin, 421 U.S. 35, 46-47 (1975)).
Here, Plaintiff cites no evidence suggesting defendant Arebalo, as the Senior Hearing Officer, relied upon knowledge or information acquired outside of the disciplinary proceedings or was otherwise biased against Plaintiff. See Strawderman v. Ives, No. 3:18-CV-00609-JR, 2018 WL 5284221, at *2 (D. Or. Sept. 14, 2018), report and recommendation adopted, No. 3:18-CV-00609-MK, 2018 WL 5284194 (D. Or. Oct. 24, 2018) (finding due process requirements met where "Petitioner cites no evidence suggesting that the hearings officer had personal knowledge of petitioner's escape or was otherwise biased against petitioner."). Accordingly, Plaintiff fails to state a due process claim against defendant Arebalo for denying him a "fair tribunal." In re Murchison, 349 U.S. at 136.
ii. "Some Evidence" Standard
Second, in determining whether "some evidence" supports a disciplinary decision, this Court does not "make its own assessment of the credibility of witnesses or reweigh the evidence." Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987). Prison discipline may not be overturned even when the critical "evidence" is confidential hearsay, so long as the totality of the circumstances suggests that the informants are reliable, with more severe punishments requiring greater indicia of the hearsay's reliability. Dawson v. Norwood, No. CV 08-01070-AHS (RZ), 2010 WL 761226, at *2 (C.D. Cal. Mar. 1, 2010), aff'd, 443 F. App'x 286 (9th Cir. 2011) (denying habeas relief, finding hearsay in reporting officer's initial report satisfied "some evidence" requirement to support guilty finding at disciplinary hearing that resulted in loss of 60 days' credit) (citing Kyle v. Hanberry, 677 F.2d 1386, 1390 (11th Cir. 1982)). Law enforcement officers "are presumed to be reliable, at least when hearsay that they provide supplies a basis for arrest." Id. (citing United States v. Angulo-Lopez, 791 F.2d 1394, 1397 (9th Cir. 1986)).
Here, Plaintiff argues the evidentiary standard was not met at his hearing because the RVR is unreliable hearsay and defendant Farley's testimony was also unreliable. SAC at 30. Defendant Farley is, however, presumed to be reliable and Plaintiff has failed to establish the RVR was not sufficiently reliable to support a guilty finding at a disciplinary hearing. See Dawson, 2010 WL 761226, at *2. Defendant Farley's report and testimony at the hearing, therefore, meets the "some evidence" standard required by due process, and this Court cannot reweigh the evidence. Cato, 824 F.2d at 705. Accordingly, because "some evidence" was presented at Plaintiff's hearing, Plaintiff fails to state a due process claim against defendant Arebalo. Id.
iii. Presentation of Evidence
Third, due process prohibits prison officials from arbitrarily denying an inmate's request to present witnesses or physical evidence. Hill, 472 U.S. at 454-55; Bostic v. Carlson, 884 F.2d 1267, 1273 (9th Cir. 1988). It is the prison official's burden to prove that his decision denying the right to call a witness or introduce physical evidence was sufficiently justified. Ponte v. Real, 471 U.S. 491, 499 (1985). Prison officials may, however, disallow evidence on the ground it is irrelevant or unnecessary or because doing so would present hazards under the circumstances of the case. Wolff, 418 U.S. at 566.
Here, Plaintiff alleges defendant Arebalo denied Plaintiff leave to call the nurse who treated him on April 2, 2020 as a witness to testify that Plaintiff's 1:00 p.m. medical appointment was done before his 1:15 p.m. scheduled call, on the basis her testimony was irrelevant. SAC at 9-10. The Court finds that whether Plaintiff could get back from his medical appointment in time for his 1:15 p.m. phone call is irrelevant to whether he made the statements to defendant Farley that resulted in defendant Farley issuing an RVR for unlawful influence. Defendant Arebalo's finding that the nurse-witness could not provide additional relevant information regarding the RVR was, therefore, not arbitrary. Hill, 472 U.S. at 454-455; Wolff, 418 U.S. at 566. Plaintiff has not supported any further allegations that defendant Arebalo was biased in violation of due process. Accordingly, Plaintiff fails to state a due process claim against defendant Arebalo for denying the nurse-witness at Plaintiff's hearing.
c. Defendant Williams
Plaintiff alleges defendant Williams improperly rescinded Plaintiff's "level 1 override endorsement" and refused to discuss Plaintiff's upcoming "parole date" at a classification hearing. SAC at 27. Plaintiff, however, has no liberty interest in his classification status. See Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007) (holding prison regulations governing inmate classification did not create cognizable Eighth or Fourteenth Amendment liberty interests).
Moreover, Plaintiff does not explain how defendant Williams's failure to assign him a staff assistant constitutes an "atypical, significant deprivation in which a State might conceivably create a liberty interest." Sandin, 515 U.S. at 486. Defendant Williams found that during Plaintiff's interview, Plaintiff was able to understand the information being discussed pertaining to his appeal, and no "additional efforts nor assistance" was required. SAC at 20. In fact, it appears Plaintiff withdrew the appeal and did not request additional assistance. Id. In addition, Plaintiff sets forth no facts to support that he was denied proper notice of the hearing. Accordingly, Plaintiff fails to state a due process claim against defendant Williams.
d. Defendant Davis
Similarly, Plaintiff's allegations that defendant Davis "endorsed" Plaintiff to be placed in a facility "far from his county" fails to state a due process claim because Plaintiff fails to identify any established liberty interest in avoiding being transferred to a farther prison. See Olim v. Wakinekona, 461 U.S. 238, 245 (1983); Meachum v. Fano, 427 U.S. 215, 225-27 (1976); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991) (holding prisoner "was not entitled to a hearing prior to being transferred from federal to state prison"); Coakley v. Murphy, 884 F.2d 1218, 1221 (9th Cir. 1989) ("[The plaintiff] has not alleged that any regulation or procedure created a substantive restriction on the prison authorities' decision to return him to the penitentiary. No liberty or property interest is violated where there is a failure to allege a restriction on the authorities' right to transfer.").
To the extent Plaintiff now claims defendant Davis failed to consider Plaintiff's safety concerns at DVI that Plaintiff shared with defendant Davis "recently" after Plaintiff initiated this action, SAC at 40, Plaintiff fails to allege specific facts demonstrating his safety and enemy concerns were communicated to, and then not properly considered by defendant Davis and/or any other individuals responsible for Plaintiff's transfer. In fact, it appears defendant Davis audited Plaintiff's transfer order which contained notation indicating "Offender separation clear." Id. at 155. Accordingly, Plaintiff fails to state a due process claim against defendant Davis.
C. PLAINTIFF'S CLAIMS SHOULD BE DISMISSED WITHOUT LEAVE TO AMEND
1. Applicable Law
"[A] district court's discretion over amendments is especially broad 'where the court has already given a plaintiff one or more opportunities to amend his complaint.'" Ismail v. Cnty. of Orange, 917 F. Supp. 2d 1060, 1066 (C.D. Cal. 2012) (quoting DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 n.3 (9th Cir. 1987)); see also Zavala v. Bartnik, 348 F. App'x 211, 213 (9th Cir. 2009) ("Dismissal with prejudice was proper because [plaintiff] was given two prior opportunities to amend his complaint in order to correct the deficiencies identified by the district court but failed to do so."). Moreover, it does not appear Plaintiff is willing to amend his SAC, as Plaintiff states that he seeks to clarify the claims in the SAC so he does not "have to file a Third Amended Complaint because he will NOT be doing so." SAC at 1. Denial of leave to amend is not an abuse of discretion where further amendment would be futile. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996); Robinson v. California Bd. of Prison Terms, 997 F. Supp. 1303, 1308 (C.D. Cal. 1998) ("Since plaintiff has not, and cannot, state a claim containing an arguable basis in law, this action should be dismissed without leave to amend; any amendment would be futile." (internal citations omitted)).
2. Analysis
As discussed in Sections A and B above, Plaintiff has, once again, failed to state an Eighth Amendment "threat to safety claim" or a Fourteenth Amendment due process claim against any defendant other than the claim regarding defendant Farley's assault. The Court previously advised Plaintiff of these pleading deficiencies when the Complaint and FAC were dismissed with leave to amend. See dkts. 8, 16. Thus, despite having had two opportunities to correct the specific deficiencies identified in each of the prior dismissal orders, the SAC remains deficient. Accordingly, the Court recommends dismissing the SAC without leave to amend. See Zavala, 348 F. App'x at 213.
V.
RECOMMENDATION
IT IS THEREFORE RECOMMENDED that the Court issue an Order: (1) accepting this Final Report and Recommendation; (2) dismissing the following claims with prejudice:
a) Eighth Amendment "threat to safety" claims against defendants Farley, Arebalo, and Graves; and
b) Fourteenth Amendment due process claims against defendants Farley, Arebalo, Williams, and Davis discussed above.
The Court will issue a separate order regarding service of the remaining claims in the SAC, as follows:
a) First Amendment retaliation claims against defendant Farley in his individual capacity;
b) First Amendment free speech claim against defendant Farley in his individual capacity;
c) Eighth Amendment excessive force claim against defendant Farley in his individual capacity;
d) Fourteenth Amendment due process claim against defendant Farley in his individual capacity;
e) First Amendment retaliation claim against defendant Arebalo in his individual and official capacities;
f) First Amendment retaliation claim against defendant Williams in his individual and official capacities; and
g) First Amendment retaliation claim against defendant Davis in his individual and official capacities.Dated: April 02, 2021
/s/_________
HONORABLE KENLY KIYA KATO
United States Magistrate Judge