STANLEY A. BOONE, Magistrate Judge.
Plaintiff Jose Galicia is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
Currently before the Court is Defendant M. Jennings motion for summary judgment, filed January 22, 2018.
This action is proceeding against Defendant M. Jennings for a due process violation under the Fourteenth Amendment of the United States Constitution.
On August 21, 2017, the Court issued an amended scheduling order setting, inter alia, the discovery of December 26, 2017 and the dispositive motion deadline of February 26, 2018. (ECF No. 64)
As previously stated, on January 22, 2018, Defendant M. Jennings filed a motion for summary judgment. Plaintiff filed an opposition on February 15, 2018, and Defendant filed a reply on February 22, 2018.
On March 7, 2018, Plaintiff filed a request for leave to file a sur-reply. Parties do not have the right to file surreplies and motions are deemed submitted when the time to reply has expired. Local Rule 230(l). The Court generally views motions for leave to file a surreply with disfavor.
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);
In judging the evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence,
On March 15, 2013, Plaintiff was transferred to Corcoran State Prison and placed in administrative segregation pending release to facility 3A.
On March 20, 2013, Plaintiff arrived in facility 3A, housing unit 2 and was assigned to cell 212. Plaintiff was never asked to sign a document acknowledging that cell 212 was searched prior to Plaintiff's assignment as mandated by California Department of Corrections and Rehabilitation (CDCR) guidelines.
On March 27, 2013, Plaintiff appeared before the classification committee which chose to release Plaintiff to Facility 3A general population.
On April 2, 2013, a mass search of facility 3A, housing unit 2 was conducted. During this search a weapon was discovered in a cavity behind the door handle of Plaintiff's cell door. The door handle on the interior of Plaintiff's cell door is secured by specialized screws designed to only unscrew with the use of a specialized tool. No tool that could be used to remove the door handle was ever found in Plaintiff's cell or personal property.
On April 2, 2013, Plaintiff was placed in administrative segregation and charged with possession of a deadly weapon.
On April 10, 2013, Plaintiff was given ten minutes to view photographs of the alleged weapon. Plaintiff contends that ten minutes was not enough time to formulate an adequate defense, based on the photographs.
On July 18, 2013, correctional officer Guzman was assigned to serve as Plaintiff's investigative employee. Plaintiff forwarded a list of questions for four witnesses. Plaintiff did not know the name of the fourth witness but provided his job title as "R & R Sergeant."
On July 20, 2013, another inmate pled guilty to possession of the same weapon that Plaintiff was charged to have possessed.
On July 20, 2013, lieutenant Weatherford was the senior hearing officer who conducted the disciplinary hearing of the inmate who pled guilty to possession of the weapon. During the disciplinary hearing of the other inmate, Weatherford received exculpatory testimony exonerating Plaintiff of the charge. Weatherford refused to record the statement and told inmate (John Doe) to mind his own business.
On July 23, 2013, Guzman gave Plaintiff a copy of the interviews he conducted on three staff members, but refused to provide an explanation on why the fourth witness was not questioned. Plaintiff asserts that the fourth witness could have explained that upon Plaintiff's arrival on 3A yard his personal property was x-rayed just a few days prior to the search.
On July 25, 2013, Plaintiff appeared before senior hearing officer (SHO) T. Marsh. SHO Marsh was aware that someone else had already pled guilty to the same charge. Plaintiff was a little concerned that Marsh was conducting his disciplinary hearing since he reviewed a grievance that Plaintiff had previously filed.
Marsh seemed to have his mind made up prior to Plaintiff's hearing for he simply asked for a statement. When Plaintiff noticed that he was recording the statement, Marsh told Plaintiff there was no need. Plaintiff asked why Marsh had not reviewed the interviews of the three staff members, and he said it would not make a difference because he knew the weapon belonged to Plaintiff who was a south sider and in need of a knife on the yard.
On August 10, 2013, Plaintiff received a written disposition signed by T. Marsh finding Plaintiff guilty as charged. Based on the staff reports, Plaintiff was sentenced to a fifteen month term in the security housing unit and accessed 360 days of forfeiture of credit.
Defendant Jennings was the Chief Disciplinary Officer (CDO) who oversaw the disciplinary hearings of both inmates, John Doe and Plaintiff. Jennings duties as the CDO consist of making sure disciplinary hearings conform with constitutional safeguards and take corrective action if necessary.
1. Plaintiff Jose Galicia (F-39950) is a California prisoner serving a fifteen-year sentence for second degree burglary with a firearm enhancement. (ECF No. 29; Ex. A; see also ECF No. 59, p. 5:4-20.)
2. Defendant M. Jennings is a retired Associate Warden from California State Prison Corcoran. (Decl. of Jennings ¶ 2, ECF No. 77-2.)
3. On April 4, 2013, Plaintiff received Rules Violation Report ("RVR") Log No. 31-13-04-008 for possession of a deadly weapon after an inmate manufactured weapon was found hidden within his cell. (Decl. of Jennings ¶ 3; Ex. A, DEF 0014.)
4. On July 25, 2013, Plaintiff attended his disciplinary hearing for RVR Log No. 31-13-04-008 and was found guilty. (Decl. of Jennings ¶ 4; Ex. A, DEF 0015.)
5. Defendant was the Chief Disciplinary Officer assigned to review Plaintiff's disciplinary hearing for RVR Log No. 31-13-04-008. (Decl. of Jennings ¶ 5.)
6. As the Chief Disciplinary Officer, Defendant was responsible for auditing RVR documents to ensure; the CDC Form 115 and 115-A were complete; the serious classification was correct; due process and time constraints were met; the charges and circumstances of the offense coincided; the assessed credit forfeiture conformed to the division of offense and credit loss schedules; the findings and disposition were justified by documentation; and the investigative employee's/staff assistant's determination were appropriate. (Decl. of Jennings ¶ 5.)
7. The CDC Form 115 and 115-A for Plaintiff's RVR were complete. (Decl. of Jennings ¶ 6; Ex. A.)
8. Plaintiff received his RVR for possession of a deadly weapon after an inmate manufactured weapon was found hidden within his cell, a division A-1 offense. (Decl. of Jennings ¶ 6; Ex. A, DEF 0014-0015.)
9. As a division A-1 offense, the violation was appropriately classified as serious and the charges and circumstances of the offense coincided. (Decl. of Jennings ¶ 6;
10. Documentation from Plaintiff's disciplinary hearing reflects that time constraints were met. (Decl. of Jennings ¶ 7; Ex. A, DEF 0015;
11. Documentation reflects that the hearing was held within thirty days from the date that California State Prison, Corcoran's Investigative Services United received the District Attorney's Notice of Disposition; Plaintiff received a copy of the RVR at least fifteen days prior to the disciplinary hearing; a copy of all pertinent reports were provided to him more than twenty-four hours prior to the disciplinary hearing; and Plaintiff was advised of the charges against him and the purpose of the hearing. (Decl. of Jennings ¶ 7; Ex. A, DEF 0015.)
12. Documentation from Plaintiff's disciplinary hearing demonstrates that he did not require a Staff Assistant. (Decl. of Jennings ¶ 8; Ex. A, DEF 0015, 0021, 0024;
13. Documentation reflects that Plaintiff had a reading level above a 4.0 and was not illiterate or non-English speaking; the issues were not complex and an assistant was not necessary to ensure that Plaintiff comprehended the nature of the charges or the disciplinary process; and Plaintiff was not an inmate participating in a Mental Health Services Delivery System. (Decl. of Jennings ¶ 8; Ex. A, DEF 0015, 0021.)
14. The reviewing custody supervisor also completed an informational chrono, determining that Plaintiff's behavior did not appear "bizarre, unusual, or uncharacteristic." (Decl. of Jennings ¶ 8; Ex. A, DEF 0015, 0024.)
15. Based on the documentation, the determination not to assign a Staff Assistant to Plaintiff was appropriate. (Decl. of Jennings, ¶ 8.)
16. Documentation from Plaintiff's disciplinary hearing indicates that an Investigate Employee was assigned based on a determination that his housing status made it unlikely that he could collect and present evidence necessary for an adequate presentation of a defense. (Decl. of Jennings ¶ 9; Ex. A, DEF 0015;
17. The assignment of an Investigative Employee under the circumstances described in the documentation is appropriate and Plaintiff did not object to Correctional Officer Guzman being assigned as his investigative Employee. (Decl. of Jennings ¶ 9; Ex. A, DEF 0015;
18. Documentation reflects that Plaintiff entered a plea of not guilty and the report reflects that he made the following statement: "I wasn't here a week in that cell. I had just got my property and it was searched by the property officer." (Decl. of Jennings ¶ 10; Ex. A, DEF 0016.)
19. Documentation reflects that Plaintiff was informed of his appeal rights. (Decl. of Jennings ¶ 12; Ex. A, DEF 0017.)
20. Based on Plaintiff's conviction for RVR Log No. 31-13-04-008, he was assessed three-hundred-and-sixty days forfeiture of credit and ten days loss of yard privileges. (Decl. of Jennings ¶ 13; Ex. A, DEF 0015.)
21. The assessed credit forfeiture conformed to Plaintiff's division A-1 offense and credit loss schedules. (Decl. of Jennings ¶ 13;
Defendant argues that summary judgment should be entered in favor of him because the undisputed facts demonstrate that Defendant's involvement with Plaintiff's disciplinary hearing was limited to his review of Plaintiff's RVR, and nothing in that report indicates that Plaintiff's right to due process was violated in any way. Furthermore, to the extent Plaintiff contends that there was not "some evidence" to support his conviction, or that his conviction should be set aside based on existence of exculpatory evidence, that claim is barred by
Plaintiff contends that genuine issues of material fact exist because Defendant Jennings is liable under the theory of respondeat superior liability and there is not "some evidence" to support the RVR and the written report is insufficient. Plaintiff further argues that Defendant Jennings waived the argument that his claim is barred by
As previously noted, Plaintiff contends that Defendant Jennings, as the Chief Disciplinary Officer, violated his due process rights by failing to appropriately review the disciplinary hearing on the RVR and take corrective action.
"Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply."
Supervisory personnel may not be held liable under section 1983 for the actions of subordinate employees based on respondeat superior, or vicarious liability.
Defendant declares that he did not attend Plaintiff's disciplinary hearing, has never spoken to Plaintiff regarding the hearing, or ever met Plaintiff. (Decl. of Jennings ¶ 5.) Rather, Defendant declares that his involvement with Plaintiff's hearing was limited to his review of Plaintiff's RVR. (Id.) Defendant submits that nothing within those documents indicates that Plaintiff's due process rights were violated. The report reflects that Plaintiff (1) received written notice of the charges; (2) received a copy of the RVR at least fifteen days prior to the disciplinary hearing, and a copy of all pertinent reports were provided to him more than twenty-four hours prior to the disciplinary hearing; (3) the SHO provided a written report regarding his conviction, including the evidence relied upon in finding him guilty; (4) the RVR indicates that Plaintiff did not request any witnesses at the hearing, but the SHO was provided the Investigative Employee's report, which included three witness responses to Plaintiff's questions; and (5) documentation demonstrates that Plaintiff did not require a staff assistant because his reading level was above a 4.0, he was not illiterate or non-English speaking, the issues were not complex, and an assistant was not necessary to ensure that Plaintiff comprehended the nature of the charges or the disciplinary process. (Decl. of Jennings ¶¶ 6-15; Ex. A, DEF 0014, 0015, 0016, 00017, 0019, 0020, 0021, 0022, 0024.)
With respect to witnesses, The Investigative Report stated the following:
(Decl. of Jennings, Ex. A.) Plaintiff does not dispute the notation on the hearing of the RVR which indicates that he did not request any witnesses at the hearing. (Decl. of Jennings, Ex. A.) Plaintiff merely maintains that Investigative Employee Guzman failed to locate and interview a fourth witness and that the SHO failed to consider the three witness statements submitted by Guzman Furthermore, contrary to Plaintiff's contention, the statements by the three requested witnesses were presented at the hearing on the RVR. (Decl. of Jennings ¶ 9, Ex. A.) The SHO included Guzman's Investigative Report, dated July 18, 2013, as evidence presented at the hearing. (Decl. of Jennings, Ex. A.)
Moreover, Defendant did not know that Plaintiff had allegedly provided questions for a fourth witness, because Defendant did not participate in the investigation and the documentation he reviewed reflected that Plaintiff only provided questions for three witnesses. Defendant also did not know that Plaintiff's SHO was allegedly biased against him, because it is undisputed that Defendant did not choose the SHO for Plaintiff's disciplinary hearing, did not attend the hearing, and nothing in the documentation reviewed by Defendant indicates that the SHO was biased against Plaintiff. (Decl. of Jennings ¶¶ 5, 17.)
In his opposition, Plaintiff contends that Defendant Jennings had knowledge or should have had knowledge of Plaintiff's allegations against Marsh, Guzman and Weatherford by way of his subsequent inmate grievance. (Opp'n at 83 at 15-16;
"Some evidence" must support the decision of the hearing officer,
As a result of the rules violation, Plaintiff was assessed three-hundred-and-sixty days forfeiture of credit and ten days loss of yard privileges under Title 15 of the California Code of Regulations section 3323, therefore, it is undisputed that Plaintiff had a liberty interest in the good time credits.
In finding Plaintiff guilty, the SHO relied upon the RVR authored by correctional officer Potzernitz after he discovered a weapon in Plaintiff's cell, and the staff report by correctional sergeant Gomez regarding the incident. (Decl. of Jennings ¶ 11; Ex. A, DEF 0016, 0017.) The RVR and staff report were sufficient evidence to satisfy the minimal evidentiary standard.
Lastly, to the extent Plaintiff contends that the documentation reviewed by Defendant Jennings does not contain "some evidence" to support his conviction, or that his conviction should be set aside based on the existence of exculpatory evidence, such claim is barred by
Plaintiff is a state prisoner serving a fifteen-year sentence, and as a result of his RVR conviction, he was assessed three-hundred-and-sixty days forfeiture of credit. (ECF No. 29, Ex. A; ECF No. 59, p. 5:4-20; Decl. of Jennings ¶ 13, Ex. A, DEF 0015.) Therefore, if Plaintiff were to succeed on a claim that there was not "some evidence" to support his conviction, or that his conviction should be set aside based on the existence of exculpatory evidence, that decision would necessarily imply the invalidity of his conviction and affect the length of his sentence.
Based on the foregoing, it is HEREBY RECOMMENDED that:
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within