(PC) Tri v. Gutierrez

[7] 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA [10] 11 LY TRI, Case No.: 1:22-cv-00836-KES-SKO (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO 13 v. GRANT DEFENDANT McNUTT’S MOTION TO DISMISS 14 C. GUTIERREZ, et al., (Doc. 16) 15 Defendants. 14-DAY OBJECTION PERIOD [17] 18 Plaintiff Ly Tri is proceeding pro se in this civil rights action brought pursuant to 42 19 U.S.C. § 1983 . 20 I. RELEVANT BACKGROUND 21 Plaintiff filed a complaint on July 8, 2022. (Doc. 1.) Following screening and service of 22 process, the action proceeds on Plaintiff’s First Amendment retaliation claim against Defendant 23 D. Gutierrez and Fourteenth Amendment due process claim against Defendant J. McNutt. (See 24 Docs. 9 & 10.) 25 On July 26, 2023, Defendant McNutt filed a motion to dismiss for lack of subject matter 26 jurisdiction. (See Doc. 16.) The following day, Defendant Gutierrez filed a motion to stay the 27 responsive pleading deadline pending the Court’s ruling on Defendant McNutt’s motion to 1 responsive pleading deadline as to Gutierrez or jointly as to Gutierrez and McNutt pending the 2 outcome of Defendant McNutt’s motion to dismiss. (Doc. 18.) 3 On August 23, 2023, the Court issued its “Order to Show Cause Why Action Should Not 4 be Dismissed for Failure to Obey Court Orders” (“OSC”). (Doc. 20.) Plaintiff was ordered to 5 respond within 21 days to show cause why the action should not be dismissed or file an 6 opposition or a statement of non-opposition to the pending motion to dismiss. (Id. at 2.) Although 7 more than 21 days have passed, Plaintiff has failed to respond to the OSC. 8 On September 20, 2023, the Court issued Findings and Recommendations to dismiss this 9 action for Plaintiff’s failure to obey court orders and failure to prosecute. (Doc. 23.) Plaintiff was 10 ordered to file any objections within 14 days. (Id. at 4-5.) On October 16, 2023, Plaintiff filed his 11 objections, stating he was unfamiliar with the rules and procedure and needed more time and 12 legal assistance. (Doc. 25.) 13 On October 18, 2023, the Court vacated the Findings and Recommendations, denied 14 Plaintiff’s request for the appointment of counsel, and ordered Plaintiff to file an opposition to the 15 motion to dismiss within 30 days. (Doc. 26.) 16 Plaintiff filed his opposition on November 22, 2023 (Doc. 27) and Defendant McNutt 17 replied on December 4, 2023 (Doc. 29). 18 II. APPLICABLE LEGAL STANDARDS 19 Federal Rule of Civil Procedure 12(b)(1) allows a defendant to raise the defense, by 20 motion, that the court lacks jurisdiction over the subject matter of an entire action or of specific 21 claims alleged in the action. “Because standing and mootness both pertain to a federal court's 22 subject-matter jurisdiction under Article III, they are properly raised in a motion to dismiss under 23 Federal Rule of Civil Procedure 12(b)(1), not Rule 12(b)(6).” White v. Lee, 227 F.3d 1214 , 1242 24 (9th Cir. 2000). 25 There are two types of motions to dismiss for lack of subject matter jurisdiction: a facial 26 attack, and a factual attack. Thornhill Publ’g Co. v. Gen. Tel. & Elec. Corp., 594 F.2d 730 , 733 27 (9th Cir. 1979). When a party makes a facial attack on a complaint, the attack is unaccompanied 1 Everyone v. Meyer, 373 F.3d 1035 , 1039 (9th Cir. 2004). If the motion to dismiss constitutes a 2 facial attack, the Court must consider the factual allegations of the complaint to be true and 3 determine whether they establish subject matter jurisdiction. Savage v. Glendale High Union Sch. 4 Dist. No. 205, 343 F.3d 1036 , 1039 n.1 (9th Cir. 2003). In the case of a facial attack, the motion 5 to dismiss is granted only if the nonmoving party fails to allege an element necessary for subject 6 matter jurisdiction. Id. 7 In the case of a factual attack, district courts “may review evidence beyond the complaint 8 without converting the motion to dismiss into a motion for summary judgment.” Safe Air for 9 Everyone, 373 F.3d at 1039. In that instance, “[n]o presumptive truthfulness attaches to plaintiff’s 10 allegations.” Thornhill, 594 F.2d at 733 (internal citation omitted). The burden to demonstrate 11 subject matter jurisdiction is on the party asserting the claim. See Harris v. KM Indus., Inc., 980 12 F.3d 694, 699 (9th Cir. 2020). And where the moving party makes a factual challenge to the 13 court’s subject matter jurisdiction by offering affidavits or other evidence in support of the 14 motion, the opposing or non-moving party must present similar evidence “necessary to satisfy the 15 burden of establishing that the court, in fact, possesses subject matter jurisdiction.” St. Clair v. 16 City of Chico, 880 F.2d 199, 201 (9th Cir. 1989). If the nonmoving party fails to meet its burden 17 and the court determines that it lacks subject matter jurisdiction, the court must dismiss the action. 18 Fed. R. Civ. P. 12(h)(3). 19 III. JUDICIAL NOTICE 20 Defendant asks the Court to take judicial notice of certain documents because they are not 21 subject to reasonable dispute and are capable of ready determination through sources whose 22 accuracy cannot be reasonably questioned. (Doc. 16-1 at 2.) Defendant states that because he has 23 supplied the Court with the necessary information, judicial notice is compulsory pursuant to 24 Federal Rule of Evidence 201(c)(2). 25 Federal Rule of Evidence 201(b) provides that a court “may judicially notice a fact that is 26 not subject to reasonable dispute because it: (1) is generally known with the trial court’s territorial 27 jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot 1 Defendant requests that this Court take judicial notice of following documents: 2 1. Exhibit A: A declaration authenticating the records contained in Exhibits B and C 3 2. Exhibit B: Rules Violation Report (“RVR”) log number 7086211 concerning 4 possession of a cellular telephone issued against Plaintiff, issued May 11, 2021, and 5 heard May 24, 2021 6 3. Exhibit C: Rules Violation Report (“RVR”) log number 7086211 concerning 7 possession of a cellular telephone issued against Plaintiff, reissued July 22, 2021, and 8 reheard August 20, 2021 9 4. Exhibit D: A declaration authenticating records contained in Exhibits E and F 10 5. Exhibit E: Plaintiff’s grievance challenging the May 24, 2021, disciplinary hearing 11 result for log number 7086211, submitted June 17, 2021 12 6. Exhibit F: Grievance Claims Decision response log number 130475, issued July 7, 13 2021, approving Plaintiff’s grievance. 14 (Doc. 16-1.) 15 Judicial notice can be taken of the official records of the California Department of 16 Corrections and Rehabilitation. See Brown v. Valoff, 422 F.3d 926 , 931 n.7 (9th Cir. 2004). 17 Federal courts have recognized that RVRs fall within the category of public records subject to 18 judicial notice. See, e.g., Jones v. Harrington, No. 1:10-CV-00212-AWI-GSA, 2010 WL 19 3341597, at *1 (E.D. Cal. Aug. 24, 2010) (taking judicial notice of RVR in habeas proceeding); 20 Givens v. Miller, No. 15CV2877-GPC (PCL), 2017 WL 840658 , at *2 (S.D. Cal. Mar. 3, 2017) 21 (taking judicial notice of two dispositions of disciplinary hearings for two separate RVRs), aff'd, [22] 708 F. App'x 354 (9th Cir. 2017). Taking judicial notice of an RVR does not, however, mean that 23 the factual allegations contained in an RVR are deemed to be true. A court cannot generally take 24 judicial notice of the underlying “factual findings of proceedings or records in another cause so as 25 to supply, without formal introduction of evidence, facts essential to support a contention in a 26 cause then before it.” M/V Am. Queen v. San Diego Marine Constr. Corp., 708 F.2d 1483 , 1491 27 (9th Cir.1983); see also Wyatt v. Terhune, 315 F.3d 1108 , 1114 n.5 (9th Cir. 2003) (“Factual 1 notice”), overruled on other grounds, Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014); Clark v. 2 Citizens of Human., LLC, 97 F. Supp. 3d 1199, 1202 (S.D. Cal. 2015) (“While a court may take 3 judicial notice of the existence of matters of public record, such as a prior order or decision, it 4 should not take notice of the truth of the facts cited therein,” citation & internal quotation marks 5 omitted). 6 The Court takes judicial notice of the existence and contents of Exhibits A through F, 7 including the RVR and Disciplinary Hearing Results, and expresses no opinion as to the truth of 8 the facts asserted therein. M/V Am. Queen, 708 F.2d at 1491; Clark, 97 F. Supp. 3d at 1202 . 9 IV. PLAINTIFF’S FACTUAL ALLEGATIONS 10 Plaintiff asserts that on May 4, 2021, a mass housing unit search was conducted at Kern 11 Valley State Prison (“KVSP”). Plaintiff stats he was located at the Correctional Treatment Center 12 (“CTC”) and shared a cell at KVSP with another inmate. During the unit search, a cellular phone 13 was found in Plaintiff’s shared cell, and he was charged with constructive possession of a cellular 14 phone. 15 On May 24, 2021, a rules violation hearing was conducted by Defendant McNutt. Plaintiff 16 contends McNutt refused to allow him to call his cellmate as a witness who would have testified 17 that Plaintiff had no knowledge of the cellular phone. Plaintiff was found guilty of constructive 18 possession of a cellular phone. Plaintiff contends he was deprived of “yard, exercise, family 19 visiting, property for six months.” Plaintiff states he was placed on C-status and denied access to 20 “productive, rehabilitative and drug treatment programs.” On June 17, 2021, Plaintiff filed a 21 grievance regarding the guilty finding alleging lack of knowledge of the cellular phone, the 22 refusal to permit him to call witnesses, and “not including” his relevant questions. Plaintiff states 23 the grievance was granted at the third level, resulting in a finding that Plaintiff was improperly 24 denied witness testimony and ordering a new hearing. 25 Plaintiff contends that on August 20, 2021, Defendant Gutierrez conducted a hearing on 26 “the reissued rule violation.” Plaintiff alleges he was again precluded from calling his witness. 27 The same penalties consisting of restricted yard, exercise, property, and family-visit privileges 1 being penalized again, Gutierrez replied, “’You should not have wrote that 602. Next time you 2 won’t 602 things. You have to learn a lesson.’” Plaintiff contends Gutierrez was retaliating 3 against him for filing a grievance. Plaintiff’s penalties following rehearing included a loss of 4 family visits for five years, C-status, loss of personal property, restricted canteen, and “no self 5 help programs, drug treatment programs, removal from those programs that inspire and motivate 6 rehabilitation.” Finally, Plaintiff contends Gutierrez’s retaliation did not serve any penological 7 purpose. 8 Plaintiff next contends that Defendant McNutt falsified a document during the first 9 disciplinary hearing, including a statement purportedly made by Plaintiff that the cellular phone 10 found belonged to Plaintiff’s “celly.” Plaintiff denies making the statement and contends McNutt 11 falsely attributed the statement to Plaintiff to help find Plaintiff guilty. Plaintiff states McNutt 12 denied him the right to call his witness who would have testified that Plaintiff had no knowledge 13 of the cell phone. Plaintiff contends McNutt further falsified the hearing documentation by stating 14 Plaintiff had no witnesses and there were no statements by a witness. Plaintiff alleges McNutt 15 was “caught in a lie” when the rules violation was overturned on appeal. Plaintiff contends “the 16 prison and McNutt refused to accept that the 115 had been overturned,” and Plaintiff has suffered 17 “all the punishment as if the 115 had not been overturned.” Plaintiff contends his due process 18 rights were violated and he was deprived “all over again, deprived of yard, exercise, family 19 visiting, property for 6 months, placed on C-status as continuing, denial all access to productive, 20 rehabilitative and drug treatment programs.” Plaintiff contends the drug treatment program was 21 working for him, but he began “to decline after McNutt and Gutierrez decided to penalize” him 22 “for a falsified document.” 23 V. SUMMARY OF THE PARTIES’ POSITIONS 24 Defendant McNutt’s Motion to Dismiss 25 Defendant McNutt contends Plaintiff’s only claim against him concerns an alleged due 26 process violation arising out of the first RVR hearing but because the RVR was reissued and 27 reheard, any procedural violations occurring at the first hearing were corrected by the second 1 hearing were reduced to account for the penalties already incurred at the first RVR hearing, 2 making Plaintiff’s claim against McNutt moot. (Id.) 3 Defendant contends that the due process violation that occurred at the first RVR hearing— 4 denying Plaintiff the right to call a witness—was corrected at the second RVR hearing when 5 Plaintiff’s witness, Inmate Tran, testified and was questioned by Plaintiff and Defendant 6 Gutierrez. (Doc. 16-2 at 6-7.) Plaintiff was therefore afforded the due process to which he was 7 entitled. (Id. at 7.) The penalties assessed at the second RVR hearing were also “adjusted to 8 account for penalties already incurred.” (Id.) Since none of those facts are subject to genuine 9 dispute, Defendant contends Plaintiff’s claim against him is moot and should be dismissed 10 without leave to amend. (Id.) Defendant asks the Court to grant the motion to dismiss and to 11 dismiss Plaintiff’s claims against him with prejudice. (Id. at 8.) 12 Plaintiff’s Opposition 13 Plaintiff contends Defendant’s allegations in the motion to dismiss “fail to take into 14 account that among other things by the time of the rehearing Plaintiff had already been required 15 to serve the brunt of the sanctions imposed from the initial hearing.” (Doc. 27 at 2.) Plaintiff 16 asserts that “as a matter of law defendant McNutt’s falsification of the record is not remedied and 17 count not be remedied or mooted by a rehearing.” (Id.) Plaintiff contends the constitutional 18 violation he has alleged “could not be repaired, much less rendered moot, by the rehearing 19 inasmuch as the rehearing was not conducted until August 20, 201 – Approximately 90 days after 20 the initial hearing – and Plaintiff had by that time already served much of the penalties imposed at 21 the initial hearing.” (Id. at 4.) Plaintiff also asserts Defendant falsely attributed the statement “’[i]t 22 was my cell mates [sic] phone’” to Plaintiff, knowing it could result in Plaintiff being labeled a 23 “snitch” by other inmates. (Id. at 5.) Plaintiff contends those actions were “not ameliorated by a 24 rehearing and should not foreclose Plaintiff from seeking damages for such action.” (Id.) 25 Plaintiff further contends he was found guilty of constructive possession of the cell phone 26 but that at both the first and second RVR hearings the incorrect standard was applied because “the 27 offense is comprised of two (2) elements: knowledge and control.” (Doc. 27 at 5.) Plaintiff 1 Plaintiff “was not event present during the mass cell search,” he could not be found guilty of 2 constructive possession. (Id. at 5-6.) 3 Plaintiff contends the requirements of Wolff v. McDonnell, 418 U.S. 539 (1974) and 4 Superintendent v. Hill, 472 U.S. 445 (1985) were not met at either the first or second RVR 5 hearing because “there is no recorded reason that supports disregarding witness Tran’s testimony, 6 nor Plaintiff’s plea and statement; the record is void of any indication that the required knowledge 7 and control standard of review was applied or correctly applied, and; the record is void of ‘some 8 evidence’ that may support the finding of guilt.” (Doc. 27 at 6.) Plaintiff asks the Court to deny 9 Defendant’s motion. (Id. at 7.) 10 Defendant’s Reply 11 Defendant contends that Plaintiff was credited for penalties already imposed as a result of 12 the first RVR hearing and was not subjected to any additional penalties as a result of the second 13 RVR hearing. (Doc. 29 at 2.) At both RVR hearings, Plaintiff received a 90-day credit loss and a 14 five-year loss of family visitation and the penalties were to run from May 21, 2021. (Id.) 15 Therefore, Plaintiff’s argument that he had served “the brunt of the sanctions imposed from the 16 initial hearing” is unavailing. (Id.) 17 Regarding Plaintiff’s contention that the second RVR hearing did not remedy the first 18 RVR hearing because Defendant McNutt allegedly falsified records during the first disciplinary 19 hearing, Defendant contends that “[b]ecause Plaintiff does not have a cognizable claim arising 20 from falsified documents and because falsified documents cannot serve as the basis of a due 21 process claim, Plaintiff’s contention that the rules violation was based on falsified documents is 22 irrelevant.” (Doc. 29 at 2-3.) 23 Regarding Plaintiff’s contention that the “’knowledge and control test’” was not properly 24 applied, Defendant contends Plaintiff did not bring that claim in his complaint, nor did the Court 25 screen such a claim. (Doc. 29 at 3.) Defendant contends the only claim against him is a due 26 process claim raising from the denial of a witness at the first RVR hearing. (Id.) Defendant 27 contends Plaintiff’s argument that Defendant Gutierrez improperly found Plaintiff guilty of 1 was applied is irrelevant because Defendant Gutierrez is not a party to this motion. (Id.) 2 Defendant asserts the due process violation occurring at the first RVR hearing was cured 3 at the second RVR hearing because Plaintiff was allowed to present his witness, and his due 4 process claim against Defendant McNutt is moot and must be dismissed with prejudice. (Doc. 29 5 at 3-4.) 6 VI. SUMMARY OF THE FIRST AND SECOND DISCIPLINARY HEARINGS 7 The Court adopts the following unopposed1 summary of the disciplinary hearings at issue 8 in this action: 9 On May 11, 2021, Plaintiff was charged with a rules violation report for possession of a cell phone. On May 24, 2021, a disciplinary 10 hearing on the RVR was held before Senior Hearing Officer Defendant McNutt. Plaintiff pled not guilty and made a statement. 11 Defendant McNutt considered Officer Swanson’s RVR and a photograph of the contraband taken following the search. Defendant 12 McNutt found Plaintiff guilty as charged and assessed 90 days credit loss, 90 days lost phone privileges, 90 days lost yard recreation 13 privileges, 90 days lost packages privileges, and loss of family visits for five years. Associate Warden Goree, the Chief Disciplinary 14 Officer, affirmed the hearing results and penalties. 15 In a CDCR 602 form dated June 17, 2021, Plaintiff grieved that his due process rights were violated at the May 24, 2021 initial hearing 16 because Defendant McNutt did not include Plaintiff’s witness, inmate Tran, “in [Plaintiff’s] final copy.” Plaintiff requested that the 17 RVR “be vacated, re-issued and re-heard so that appellant’s due process right [sic] are upheld[.]” [18] On July 7, 2021, CDCR approved Plaintiff’s grievance. The 19 Grievance Claims Decision Response stated that Plaintiff “requested his cellmate (Inmate TRAN, F98698) as a witness[,]” but “[a] review 20 of the DHR [Disciplinary Hearing Report] does not note that the [Plaintiff’s] requested witness was questioned nor is it documented 21 as to why the aforementioned requested witness was not questioned or made available at the Disciplinary Hearing.” CDCR vacated the 22 original disposition and ordered a new hearing. 23 On August 20, 2021, the RVR was reheard before Senior Hearing Officer Defendant Gutierrez. Contrary to Plaintiff’s allegation, 24 Plaintiff’s request to present inmate witness Tran (CDC# F98698) was granted. Inmate Tran was asked the following question by 25 Plaintiff, and inmate Tran provided the following response: 26 Q1. Did I have any knowledge of the cellphone? [27] 1 See Doc. 27 at 2 (Plaintiff’s opposition adopts Defendant’s summary of these proceedings). 1 A1. No 2 Defendant Gutierrez asked inmate Tran the following questions, and inmate Tran provided the following responses: [3] Q1. How long did you have the cell phone in your 4 possession? 5 A1. Only one week 6 Q2. Where was the cell phone kept (location)? 7 A2. Under the chair 8 Plaintiff pled not guilty to the charge and submitted a written statement. Defendant Gutierrez found Plaintiff guilty of the lesser 9 included charge of constructive possession of a cell phone. 10 In reaching this decision, Defendant Gutierrez considered “[a]ll evidence” including “all evidence and statements provided during 11 the hearing” and the “RVR written by the reporting employee[.]”Defendant Gutierrez specifically found that three pieces 12 of evidence supported the finding: (1) “[t]he location of the cell phone made it easily accessible by both inmates housed in the cell[;]” 13 (2) witness Tran’s testimony that “the cellular phone was in the cell for a time frame extended past a few days[;]” and (3) the cellular 14 phone was located in the same place Plaintiff has used in the past “to conceal his possession of contraband.” [15] Defendant Gutierrez assessed 90 days credit loss, 90 days lost phone 16 privileges, 90 days lost day room privileges, and a loss of family visits for five years beginning on May 24, 2021, and ending on May 17 24, 2026. Associate Warden Stark, the Chief Disciplinary Officer, vacated Defendant Gutierrez’s disposition regarding phone and day 18 room privileges as “these were taken on initial RVR.” Accordingly, the only penalties assessed at the August 20, 2021 re-hearing were 19 90 days credit loss and a loss of family visits for five years beginning on May 24, 2021, and ending on May 24, 2026. [20] 21 (Doc. 16-2 at 3-5, internal citations omitted.) 22 VII. DISCUSSION A. This Court Lacks Subject Matter Jurisdiction Over Plaintiff’s Fourteenth 23 Amendment Claim Against Defendant McNutt 24 Defendant McNutt contends Plaintiff’s Fourteenth Amendment claim lacks subject matter 25 jurisdiction. Fed. R. Civ. P. 12(b)(1); Thornhill, 594 F.2d at 733. In this factual attack on 26 Plaintiff’s due process claim, evidence beyond the complaint is considered and the burden to 27 demonstrate subject matter jurisdiction is on Plaintiff, the party asserting the claim. St. Clair, 880 1 B. Analysis 2 Defendant has established that any procedural due process violation arising from the first 3 RVR hearing was corrected because the RVR was reissued and reheard at the second RVR 4 hearing that included testimony by Plaintiff’s inmate witness. (Doc. 16-1 at 4-48 [Exhibits A-C].) 5 See Frank v. Schultz, 808 F.3d 762, 763 (9th Cir. 2015) (no deprivation of due process rights 6 where procedural error was corrected through the administrative appeal process); see also 7 Torricellas v. Poole, 954 F. Supp. 1405, 1414 (C.D. Cal. 1997) (“Where a procedural error has 8 been corrected in the administrative process, as it was here, there has been no compensable due 9 process violation. The administrative appeal is considered part of the process afforded, and any 10 error in the process can be corrected during that appeals process without necessarily subjecting 11 prison officials to liability for procedural violations at lower levels”), affirmed, 141 F.3d 1179 12 (9th Cir. 1998) (unpublished disposition); Edwards v. Lamas, No. 2:19-cv-1907 MCE CKD P, [13] 2020 WL 1812135 , at *3 (E.D. Cal. Apr. 9, 2020) (“Although plaintiff alleges that he lost good14 time credits as a result of the disciplinary and that Lamas denied his request for witnesses, he also 15 alleges that the guilty finding was reversed on appeal. There is no due process violation if ‘any 16 procedural error was corrected through the administrative appeal process,’ citing Frank v. 17 Schultz); King v. Jauregui, No. 2:18-cv-09649-DOC (GJS), 2019 WL 6312574 , at *7 (C.D. Cal. 18 Oct. 4, 2019) (“The law is clear: when a procedural error occurs at a disciplinary hearing that later 19 is corrected through the administrative appeal process, no due process violation exists that can 20 serve as a basis for Section 1983 relief. Any procedural due process violation committed by 21 Soisuvarn was corrected by Plaintiff's successful Third Level appeal. As a result, the sole claim 22 alleged against Soisuvarn fails to state a basis upon which relief can be granted”); Shotwell v. 23 Brandt, No. C 10-5232 CW (PR), 2012 WL 6569402 , at *3 (N.D. Cal. Dec. 17, 2012) 24 (“California state prison regulations allow for the reissuance and rehearing of disciplinary charges 25 after a prior hearing is found procedurally inadequate. … This complies with the demands of 26 federal due process, which requires that a violation of procedural due process be corrected 27 procedurally, not by reinstatement of the substantive right. That is, the remedy for an unfair 1 see also Green v. Parks, No. 14-0857 (ADM/BRT), 2015 WL 6667722 , at *2 (D. Minn. Oct. 30, 2 2015) (no due process violation where minor disciplinary hearing was corrected by superseding 3 major disciplinary hearing and same penalties were imposed). 4 Other Circuit Courts have reached the same conclusion that the reversal of an 5 administrative guilty finding on appeal is part of the due process afforded a prisoner and erases 6 any lower-level procedural errors. See, e.g., Wycoff v. Nichols, 94 F.3d 1187, 1189 (8th Cir. 1996) 7 (“[T]he [administrative] reversal of the case against Wycoff constituted part of the due process 8 Wycoff received, and it cured the alleged due process violation based on the [prison] disciplinary 9 committee's initial decision to sanction Wycoff”); Morrisette v. Peters, 45 F.3d 1119 , 1122 (7th 10 Cir. 1995) (“There is no denial of due process if the error the inmate complains of is corrected in 11 the administrative appeal process. The administrative appeal process is part of the due process 12 afforded prisoners”); McKinney v. Pate, 20 F.3d 1550, 1557 (11th Cir. 1994) (“[T]he state may 13 cure a procedural deprivation by providing a later procedural remedy; only when the state refuses 14 to provide a process sufficient to remedy the procedural deprivation does a constitutional 15 violation actionable under section 1983 arise”); Young v. Hoffman, 970 F.2d 1154, 1156 (2d Cir. 16 1992) (per curiam) (“[W]e need not decide whether Young suffered a denial of due process in 17 connection with his disciplinary hearing, because ... [t]he administrative reversal constituted part 18 of the due process protection he received, and it cured any procedural defect that may have 19 occurred”). 20 Plaintiff’s claim against Defendant McNutt concerns the first RVR hearing and its results. 21 However, the due process violation of which Plaintiff complains—that McNutt did not permit his 22 cellmate Tran to testify at the disciplinary hearing—was remedied by the fact the RVR was 23 reissued and reheard following the grant of Plaintiff’s grievance. (Doc. 16-1 at 49-66 [Exhibits D24 F].) Frank, 808 F.3d at 763 ; Torricellas, 954 F. Supp. at 1414 ; Shotwell, 2012 WL 6569402 , at 25 *3. 26 The Court also agrees that Plaintiff was not subject to any additional penalties as a result 27 of the second RVR hearing. Defendant has established that at the first and second RVR hearing, 1 at 24-25 to Doc. 16-1 at 46-48.) Whether imposed at the first RVR hearing or the second RVR 2 hearing, those penalties were accessed as of May 24, 2021. Therefore, no new penalties were 3 imposed following the second RVR hearing; the same credit loss and family visit penalties were 4 instead assessed. 5 Plaintiff’s assertions concerning the falsification of documents are also misplaced. The 6 creation of false evidence, standing alone, is not actionable under § 1983. See Hernandez v. 7 Johnston, 833 F.2d 1316, 1319 (9th Cir. 1987) (independent right to accurate prison record has 8 not been recognized); Johnson v. Felker, No. 1:12–cv–02719 GEB KJN (PC), 2013 WL 6243280 , 9 at *6 (E.D. Cal. Dec. 3, 2013) (“Prisoners have no constitutionally guaranteed right to be free 10 from false accusations of misconduct, so the mere falsification of a report does not give rise to a 11 claim under section 1983”); see also Hines v. Gomez, 108 F.3d 265, 269 (9th Cir. 1997) (“[T]his 12 court has reaffirmed that prisoners may still base retaliation claims on harms that would not raise 13 due process concerns”)2; Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986) (holding that the 14 filing of a false disciplinary charge against a prisoner is not actionable under § 1983 if prison 15 officials provide the prisoner with procedural due process protections); Hanrahan v. Lane, 747 16 F.2d 1137 , 1140–41 (7th Cir. 1984) (“[A]n allegation that a prison guard planted false evidence 17 which implicates an inmate in a disciplinary infraction fails to state a claim for which relief can 18 be granted where the procedural due process protections ....”); Ellis v. Foulk, No. 14–cv–0802 AC 19 P, 2014 WL 4676530, at *2 (E.D. Cal. Sept. 18, 2014) (“Plaintiff’s protection from the arbitrary 20 action of prison officials lies in ‘the procedural due process requirement[ ] ....,’”quoting 21 Hanrahan, 747 F.2d at 1140). As the Court found in its First Screening Order concerning 22 Plaintiff’s due process claim against Defendant McNutt, “as to [the falsification of the rules 23 violation report] portion of Plaintiff’s claim, there is ‘some evidence’ in the record which 24 supports the decision of the hearing officer…namely, the report by the official who conducted the 25 cell search and the physical cellular phone evidence—Plaintiff cannot state a due process [26] 27 2 Here, Plaintiff’s retaliation claim (claim one) concerns Defendant Gutierrez, not Defendant McNutt. 1 violation on this basis.” (Doc. 9 at 7.) A false RVR does not state a due process claim on its own. 2 There was also some evidence to support the Disciplinary Hearing Results despite any false RVR 3 because the phone was found in a shared cell. 4 Finally, Plaintiff’s argument that the incorrect legal standard concerning “knowledge and 5 control” was applied at the first and second RVR hearing lacks merit. As noted by Defendant 6 McNutt, Plaintiff’s complaint includes no such allegation. Moreover, Plaintiff’s own citation to 7 “Title 15, California Code of Regulations (15 CCR) section 3000” states that the definition of 8 “constructive possession” is “Constructive Possession exists where a person has knowledge of an 9 object and control of the object or the right to control the object, even if the person has no 10 physical contact with it.” (See Doc. 27 at 5, italics added.) Thus, even assuming Plaintiff had no 11 knowledge of the phone in the cell he shared with Inmate Tran, Plaintiff could properly be found 12 guilty of constructive possession of the cell phone because as an occupant of that cell Plaintiff 13 had the “right to control the object.” 14 C. Summary 15 In sum, Defendant McNutt’s motion to dismiss pursuant to Rule 12(b)(1) of the Federal 16 Rules of Civil Procedure should be granted because Plaintiff fails to demonstrate that this Court 17 has subject matter jurisdiction over his claim against Defendant McNutt. Harris, 980 F.3d at 699; 18 St. Clair, 880 F.2d at 201 . 19 VIII. CONCLUSION AND RECOMMENDATION 20 Based on the foregoing, IT IS HEREBY RECOMMENDED that: 21 1. Defendant McNutt’s motion to dismiss (Doc. 16) be GRANTED; 22 2. Plaintiff’s Fourteenth Amendment claim against Defendant McNutt be DISMISSED 23 with prejudice; and 24 3. Defendant McNutt be DISMISSED from this action. 25 These Findings and Recommendations will be submitted to the district judge assigned to 26 this case, pursuant to 28 U.S.C. § 636 (b)(l). Within 14 days of the date of service of these 27 Findings and Recommendations, a party may file written objections with the Court. The 1 Recommendations.” Failure to file objections within the specified time may result in waiver of 2 rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 3 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). [4] IT IS SO ORDERED. [5] 6 Dated: April 25, 2024 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE