Jackson v. Villasenor

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 DOUGLAS V. JACKSON, Case No. 20-cv-08695-EMC 8 Plaintiff, ORDER GRANTING DEFENDANTS’ 9 v. MOTION FOR SUMMARY JUDGMENT 10 VILLASENOR, et al., Docket No. 33 11 Defendants. [13] 14 I. INTRODUCTION 15 In this pro se prisoner’s civil rights action, Douglas Jackson complains about prison 16 officials’ alleged retaliatory behavior and due process violations. The Defendants, Correctional 17 Officers Luna and Villasenor, move for summary judgment. Docket No. 33 (“Summary Judgment 18 Motion” or “MSJ”). Mr. Jackson opposes the motion. Docket No. 34 (“Opposition”). 19 For the reasons discussed below, Defendants’ motion for summary judgment is granted. 20 II. BACKGROUND 21 A. Mr. Jackson’s Interactions with Defendants 22 Mr. Jackson alleges that, on May 5, 2018, Defendant Villasenor asked Mr. Jackson where 23 he was from and did not like Mr. Jackson’s answer. Docket No. 13 (“Second Amended 24 Complaint”) at 6. Mr. Jackson apparently had misunderstood the question to be an inquiry about 25 his housing unit, whereas Defendant Villasenor wanted to learn where Mr. Jackson had lived “on 26 the streets” rather than where he lived within the prison. See id. at 6. Defendant Villasenor then 27 wrote Mr. Jackson’s name and number “in his little book.” Id. at 6. 1 walking to a medical appointment and said, “I told you that I would be seeing you again” and 2 “now we’ll see if you still don’t like the police.” Id. at 7. Defendant Villasenor then told non3 defendant Officer Clark “to ‘fuck’ plaintiff’s cell up since he wanted to be a ‘smart ass.’ C/O 4 Clark searched plaintiff’s cell but there was no cell search slip written because . . . C/O Clark did 5 not find anything in plaintiff’s cell.” Id. 6 That same day, a search was conducted of the cells in Mr. Jackson’s building. See Docket 7 No. 33-4 (“Luna Declaration”). It was a “mass search.” See id. ¶ 2.; see also Docket No. 33-6 8 (“Villasenor Declaration”) at ¶ 2 (describing the mass search); Docket No. 33-2 (“Beck 9 Declaration”) at ¶ 2 (same). A lieutenant selected the cells for officers, including Defendants, to 10 search. See Luna Decl. ¶ 6; Villasenor Decl. ¶ 6. Defendants were directed to search cell 211, 11 belonging to Inmate Jones, and cell 311, belonging to Mr. Jackson. See Luna Decl. ¶¶ 4-5; 12 Villasenor Decl. ¶¶ 4-5. Defendants secured both cells by removing the cells’ residents, before 13 proceeding to search either cell. See Luna Decl. ¶¶ 4-11; Villasenor Decl. ¶¶ 4-10. 14 Before Defendants searched Mr. Jackson’s cell, it was searched by non-defendant Officer 15 Beck. See Beck Decl. ¶ 4 & Ex. A. Officer Beck is “a K-9 Officer, with responsibility for 16 training and utilizing dogs for searching for contraband in housing units.” Id. ¶ 1. Officer Beck 17 took his detection dog, Scrappy, into Mr. Jackson’s cell. See id. ¶ 4. Scrappy alerted to several 18 areas of Mr. Jackson’s cell, and upon leaving the cell Officer Beck informed Defendants of the 19 alerts and their locations. See id. ¶¶ 4-5. Defendants then searched Mr. Jackson’s cell, “paying 20 particular attention to the areas to which the K-9 had alerted,” and discovered marijuana and a cell 21 phone. Id. at ¶ 5. A rapid test was performed on the marijuana and confirmed the nature of the 22 substance. See Luna Decl. ¶¶ 13, 17; Villasenor Decl. ¶¶ 12, 15. Mr. Jackson demanded the 23 substance be re-tested at a crime lab; the later test also confirmed the substance was marijuana. 24 See Luna Decl., Ex. E; Villasenor Decl., Exs. E & H. 25 Defendants Villasenor and Luna filed a CDCR-115 rule violation report (“RVR”) against 26 Mr. Jackson. See Villasenor Decl., ¶ 18 & Ex. F. Mr. Jackson also was referred for criminal 27 prosecution. See id. ¶ 20, Ex. H. 1 B. Criminal Prosecution and Disciplinary Hearings 2 Because criminal charges were pending against Mr. Jackson, he had to go to court each 3 month, a process that involved searches and being transported in shackles. See SAC at 4 4 (identifying this as an adverse consequence of the criminal charge). 5 The criminal charges against Mr. Jackson eventually were dismissed “in furtherance of 6 justice,” pursuant to California Penal Code § 1385. See SAC, Ex. E (giving this reason for 7 dismissal). Defendants argue the dismissal was because intervening California appellate authority 8 had rendered Mr. Jackson’s conduct non-criminal. See MSJ at 5; see also SAC, Ex. D (motion 9 from Mr. Jackson’s defense counsel, making this argument). 10 A prison disciplinary hearing was heard on the charge that Mr. Jackson possessed a cell 11 phone in contravention of prison rules. See Villasenor Decl., Ex. G. Mr. Jackson was found 12 guilty of possessing a contraband cell phone. See id. As punishment, Mr. Jackson lost 60 days of 13 privileges regarding canteen, phone, yard, dayroom, and packages, and was deprived of electronic 14 devices. See SAC at 4. 15 After the criminal charges against Mr. Jackson were dropped, a second prison disciplinary 16 hearing was held for his possession of marijuana in contravention of prison rules. See Villasenor 17 Decl., Ex. I. The hearing officer dismissed the RVR because “[t]he preponderance of the evidence 18 presented at the hearing does not substantiate the charge . . . .” See Docket No. 33-3 (“Gonzales 19 Declaration”), Ex. C at 27. The hearing officer did not conclude that the RVR was false. See 20 Gonzales Decl. at ¶ 8. Mr. Jackson was not punished for marijuana possession. See SAC at 5. 21 C. California’s Framework for Administrative Appeals 22 During the relevant time period, the California Department of Corrections and 23 Rehabilitation (“CDCR”) provided inmates with the following administrative remedies, also 24 referred to as the administrative grievance process.1 CDCR provided its inmates the right to [25] 1 The regulations that set out the features of the administrative grievance process for custody [26] grievances for California prisoners underwent a substantial restructuring in 2020. On March 25, 2020, and effective June 1, 2020, 15 Cal. Code Regs. §§ 3084-3084.9 were repealed and replaced [27] with renumbered and amended provisions at sections 3480 through 3487. Because the alleged 1 appeal administratively “any policy, decision, action, condition or omission by the department or 2 its staff that the inmate or parolee can demonstrate as having a material adverse effect upon his or 3 her health, safety or welfare.” 15 Cal. Code Regs. § 3084.1(a). 4 “Administrative exhaustion within California requires the completion of the third level of 5 administrative review.” Jackson v. Fong, 870 F.3d 928, 933 (9th Cir. 2017). Inmates must name 6 any “issue, information, or person . . . in the originally submitted CDCR Form 602.” Cal. Code 7 Regs. tit. 15, § 3084.1. California regulations also require the appeal to name “all staff member(s) 8 involved” and “describe their involvement in the issue.” Cal. Code Regs. tit. 15, § 3084.2 (a)(3). 9 D. Mr. Jackson’s Administrative Grievances 10 Mr. Jackson filed two relevant grievances. See Docket No. 33-5 (“Monroy Declaration”) 11 (describing every grievance filed by Mr. Jackson); see also id., Exs. A-C (listing and attaching 12 relevant grievances). 13 1. First Grievance 14 Mr. Jackson filed his first relevant grievance on May 31, 2018 (“First Grievance”). See 15 Monroy Decl., Ex. A. The First Grievance contended that the RVR filed by Defendants 16 Villasenor and Luna was false, and that non-defendant hearing officer Laflin violated Mr. 17 Jackson’s rights by refusing to admit certain evidence. See id. The First Grievance neither 18 accused Defendants of retaliating against Mr. Jackson, nor mentioned the interaction between Mr. 19 Jackson and Defendant Villasenor on May 5, 2018. See id. The First Grievance was denied 20 without substantive comment at the first level of review on July 6, 2018. See id. 21 Mr. Jackson appealed to the second level of review on July 10, 2018. See id. Mr. 22 Jackson’s appeal to the second level of review again failed to accuse Defendants of retaliation, and 23 again failed to mention the interaction between Mr. Jackson and Defendant Villasenor on May 5, 24 2018. See id. The First Grievance was denied without substantive comment at the second level of 25 review on August 20, 2018. See id. 26 Mr. Jackson appealed to the third level of review on September 14, 2018. See id. Mr. [27] 1 Jackson’s appeal to the third level of review again failed to accuse Defendants of retaliation, and 2 again failed to mention the interaction between Mr. Jackson and Defendant Villasenor on May 5, 3 2018. See id. The First Grievance was denied without substantive comment at the third level of 4 review on January 10, 2019. See id. The final denial does not mention retaliation. 5 2. Second Grievance 6 Mr. Jackson filed his second relevant grievance on January 30, 2020 (“Second 7 Grievance”). See Monroy Decl., Ex. B. Like the First Grievance, the Second Grievance 8 contended that the RVR filed by Defendants Villasenor and Luna was false. See id. The Second 9 Grievance neither accused Defendants of retaliating against Mr. Jackson, nor mentioned the 10 interaction between Mr. Jackson and Defendant Villasenor on May 5, 2018. See id. 11 The Second Grievance bypassed the first level of review. See id. It was granted in part 12 and denied in part at the second level of review on February 28, 2020. See id. Specifically, the 13 Second Grievance was granted as to Mr. Jackson’s request to have all his issues addressed but 14 denied as to Mr. Jackson’s requests for compensation and that disciplinary action be taken against 15 Defendants Villasenor and Luna. See id. 16 Mr. Jackson appealed to the third level of review on March 15, 2020. See id. His appeal 17 to the third level does not mention retaliation. See id. The third level of review adopted the 18 second level’s denial without additional comment, and did not mention retaliation. See id. 19 E. Procedural Background 20 Mr. Jackson filed the instant civil rights action on November 26, 2020. See Docket No. 1; 21 see also Houston v. Lack, 487 U.S. 266, 270-71 (1988). Mr. Jackson then moved to amend his 22 complaint and tendered a first amended complaint. See Docket No. 10. The Court dismissed Mr. 23 Jackson’s first amended complaint with leave to amend. See Docket No. 11. 24 Mr. Jackson filed a Second Amended Complaint. See Docket No. 13 (“SAC”). The Court 25 screened the SAC pursuant to 28 U.S.C. § 1915A, found that Mr. Jackson had stated cognizable 26 retaliation and due process claims against Defendants Villasenor and Luna, and ordered these 27 Defendants to respond to those claims. See Docket No. 14. 1 exhaust his retaliation claim. See Docket No. 22. The Court denied that motion, noting that 2 Defendants’ evidence was insufficient to carry their arguments, but gave Defendants leave to 3 renew their motion with proper support. See Docket No. 29. 4 Defendants’ renewed summary judgment motion is now before the Court. 5 III. VENUE AND JURISDICTION 6 Venue is proper in the Northern District of California because some of the events or 7 omissions giving rise to the complaint occurred at a prison in Monterey County, which is located 8 within the Northern District. See 28 U.S.C. §§ 84 , 1391(b). The Court has federal question 9 jurisdiction over this action brought under 42 U.S.C. § 1983 . See 28 U.S.C. § 1331 . 10 IV. LEGAL STANDARD FOR SUMMARY JUDGMENT 11 Summary judgment is proper where the pleadings, discovery and affidavits show that there 12 is “no genuine dispute as to any material fact and [that] the moving party is entitled to judgment as 13 a matter of law.” Fed. R. Civ. P. 56(a). A court will grant summary judgment “against a party 14 who fails to make a showing sufficient to establish the existence of an element essential to that 15 party’s case, and on which that party will bear the burden of proof at trial . . . since a complete 16 failure of proof concerning an essential element of the nonmoving party’s case necessarily renders 17 all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A fact is 18 material if it might affect the outcome of the lawsuit under governing law, and a dispute about 19 such a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict 20 for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 21 In a typical summary judgment motion, a defendant moves for judgment against a plaintiff 22 on the merits of his claim. In such a situation, the moving party bears the initial burden of 23 identifying those portions of the record which demonstrate the absence of a genuine dispute of 24 material fact. The burden then shifts to the nonmoving party to “go beyond the pleadings, and by 25 his own affidavits, or by the ‘depositions, answers to interrogatories, or admissions on file,’ 26 designate ‘specific facts showing that there is a genuine issue for trial.’” Celotex, 477 U.S. at 324 . 27 When a defendant moves for summary judgment on an affirmative defense on which he 1 a directed verdict if the evidence went uncontroverted at trial. See Houghton v. South, 965 F.2d 2 1532, 1536 (9th Cir. 1992). The failure to exhaust administrative remedies is an affirmative 3 defense that must be raised in a motion for summary judgment. See Albino v. Baca, 747 F.3d 4 1162, 1166 (9th Cir. 2014) (en banc). On a motion for summary judgment for nonexhaustion, the 5 defendant has the initial burden to prove “that there was an available administrative remedy, and 6 that the prisoner did not exhaust that available remedy.” Id. at 1172. If the defendant carries that 7 burden, the “burden shifts to the prisoner to come forward with evidence showing that there is 8 something in his particular case that made the existing and generally available administrative 9 remedies effectively unavailable to him.” Id. The ultimate burden of proof remains with the 10 defendant, however. Id. If material facts are disputed, summary judgment should be denied, and 11 the “district judge rather than a jury should determine the facts” on the exhaustion question, id. at 12 1166, “in the same manner a judge rather than a jury decides disputed factual questions relevant to 13 jurisdiction and venue,” id. at 1170-71. 14 The court’s function on a summary judgment motion is not to make credibility 15 determinations or weigh conflicting evidence with respect to a disputed material fact. See T.W. 16 Elec. Serv. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626 , 630 (9th Cir. 1987). The evidence must 17 be viewed in the light most favorable to the nonmoving party, and inferences to be drawn from the 18 facts must be viewed in the light most favorable to the nonmoving party. See id. at 631. 19 V. DISCUSSION 20 A. Exhaustion of the Retaliation Claim 21 Defendants argue that Mr. Jackson failed to properly exhaust his retaliation claim against 22 Defendants Villasenor and Luna. See generally, MSJ. The Court agrees. 23 “No action shall be brought with respect to prison conditions under [ 42 U.S.C. § 1983 ], or 24 any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until 25 such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion 26 in prisoner cases covered by § 1997e(a) is mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002); 27 Ross v. Blake, 136 S. Ct. 1850, 1856-57 (2016) (mandatory language of § 1997e(a) forecloses 1 exhaustion is a prerequisite to suit. See Porter, 534 U.S. at 524 ; see also Booth v. Churner, 532 2 U.S. 731 , 741 (2001). 3 In their first dispositive motion, Defendants provided evidence showing that Mr. Jackson 4 did not grieve his retaliation claim in the First Grievance, or to the first or second levels of review 5 of the Second Grievance. See Docket No. 29 at 7 (concluding Mr. Jackson’s claims were not 6 exhausted by any of these documents). The Court observed that the third-level response to each 7 grievance had not been provided, and that it could have cured Mr. Jackson’s failure to exhaust. 8 See id. Although the Ninth Circuit has held that a procedurally defective grievance may still 9 satisfy the exhaustion requirement if prison officials ignore the defect and decide the grievance on 10 the merits. Reyes v. Smith, 810 F.3d 654, 656, 658 (9th Cir. 2016). 11 In their second dispositive motion, Defendants show that prison officials did not ignore 12 Mr. Jackson’s failure to exhaust and decide his retaliation claim on the merits. See Monroy Decl., 13 Exs. A, B. Instead, the third-level response to each grievance response only to the defects Mr. 14 Jackson identified with his disciplinary hearing. See Monroy Decl., Ex. A at 5-6 & Ex. B at 42. 15 Mr. Jackson did not mention retaliation in either his First or Second Grievance, and no official 16 prison response ever raised the issue of retaliation. See id. Thus, Mr. Jackson’s failure to exhaust 17 was not cured. 18 Mr. Jackson argues that, on June 13, 2018, he was interviewed about the First Grievance as 19 part of the grievance investigation, and orally related the “additional information” of his retaliation 20 claim to the interviewing officer. See Opp. at 3-4. This does not cure his failure to exhaust. 21 First, as Defendants note, Mr. Jackson identified the “additional information” he gave to 22 that interviewing officer, and it had nothing to do with retaliation. See Monroy Decl., Ex. A at 8, 23 10. Specifically, the “additional information” was: 24 It is not nor has it ever been my contention that any officer found a cellular phone in my property as stated on page 2 of 3 first level 25 appeal decision. It has in fact always been my contention that no locker has ever been identified as mine by Officer A. Villasenor. 26 Officer A. Villasenor stated he found a cell[ul]ar phone in a locker assigned to me which is false, it has never been verified as to a 27 locker assignment. 1 believed he had been retaliated against by Defendants. 2 Second, even if Mr. Jackson had orally related his retaliation claim to the investigating 3 officer, this would not exhaust his claim. The relevant California regulations required that the 4 inmate name any “issue, information, or person . . . in the originally submitted CDCR Form 602.” [5] Cal. Code Regs. tit. 15, § 3084.1 (emphasis added). Mr. Jackson thus was required to identify his 6 retaliation claim in his original grievance, not to raise it in a conversation during the investigation 7 of that grievance. See id.; see also Jones v. Bock, 549 U.S. 199, 217-18 (2007) (a prisoner must 8 comply with prison grievance procedures to “properly exhaust”). Although the Ninth Circuit 9 allows a failure to exhaust to be cured by prison officials’ later actions, see Reyes, 810 F.3d at 656 , 10 658, this inquiry focuses on how officials handle the grievance rather than on what the prisoner 11 says or does after his grievance has been submitted. Thus, even if Mr. Jackson had orally related 12 his retaliation claim during the investigation, this would be insufficient to exhaust. 13 Defendants have shown that an administrative remedy was available, and Mr. Jackson 14 failed to exhaust. See Albino, 747 F.3d at 1172 (stating this is defendants’ burden). This shifted 15 the burden to Mr. Jackson, who was required to provide evidence, not just make conclusory 16 allegations, to show he exhausted. See Draper v. Rosario, 836 F.3d 1072, 1079-80 (9th Cir. 2016) 17 (A prisoner’s “unsupported allegations” regarding impediments to exhaustion are insufficient to 18 create a triable issue of fact.). Because Mr. Jackson failed to produce any evidence that he 19 exhausted his retaliation claim, he has failed to rebut Defendants’ showing that he did not exhaust. 20 Defendants are entitled to summary judgment on Mr. Jackson’s retaliation claim because 21 Mr. Jackson failed to exhaust his retaliation claim, and that failure was not cured. 22 B. Merits of the Due Process Claim 23 Mr. Jackson alleges that Defendants denied him due process by issuing a 24 “fabricated/falsified” RVR. SAC at 7. He alleged that this RVR led him to be subject to prison 25 disciplinary proceedings, and to criminal charges. See id. at 6. The Court found that, liberally 26 construed, this allegation stated a cognizable due process claim. Docket No. 14 at 4-5. 27 Mr. Jackson’s claim as to the disciplinary charges fails because he did not suffer a 1 the criminal charges fails because he presents no evidence that the RVR was false. 2 1. Disciplinary Proceedings 3 The Due Process Clause protects individuals against deprivations of life, liberty, or 4 property without adequate process. Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Those who 5 seek to invoke the procedural protections of the Due Process Clause must establish that their life, 6 liberty, or property is at stake. Id. 7 a. No Deprivation of Real Substance 8 To proceed with the instant due process claim, Mr. Jackson must establish that the alleged 9 falsified RVR implicated his life, liberty, or property. A claim of denial of due process in 10 connection with prison disciplinary proceedings does not implicate a protected liberty interest 11 unless the deprivation suffered was one of “real substance,” as defined in Sandin v. Conner, 515 12 U.S. 472 (1995). A deprivation of “real substance” occurs when (1) a restraint imposes “atypical 13 and significant hardship on the inmate in relation to the ordinary incidents of prison life,” id. at 14 484, or (2) state action “will inevitably affect the duration of [a] sentence,” id. at 487 . 15 Here, Mr. Jackson alleges that because of the RVR for cell phone possession, he lost 60 16 days of privileges regarding canteen, phone, yard, dayroom, and packages, and was deprived of 17 electronic devices. SAC at 4. No credit-loss was assessed for the RVR. See id. at 5. 18 Mr. Jackson’s brief loss of privileges does not state a due process claim. Both the 19 Supreme Court and the Ninth Circuit have found that a brief loss of privileges does not “present a 20 dramatic departure from the basic conditions” of prison life, and thus is not a deprivation of real 21 substance. Sandin, 515 U.S. at 485.2 Mr. Jackson thus has failed to raise a genuine issue of fact [22] 2 See also Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007) (classification to level-4 prison [23] rather than level-3 prison not atypical and significant hardship creating protected liberty interest); Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996) (holding there is no constitutional right to [24] canteen items), opinion amended on denial of reh’g, 135 F.3d 1318 (9th Cir. 1998); Anderson v. Cty. of Kern, 45 F.3d 1310, 1315 (9th Cir.) (finding “there is no liberty interest in” the loss of [25] recreational programs), opinion amended on denial of reh’g, 75 F.3d 448 (9th Cir. 1995); Mahon v. Prunty, 87 F.3d 1320 (9th Cir. 1996) (finding no liberty interest in family visits, telephone calls, [26] or yard access) (unpublished); Davis v. Small, 595 F. App’x 689, 691 (9th Cir. 2014) (finding no liberty interest in telephone or yard privileges); see also Sandin, 515 U.S. at 500 (Breyer, J., [27] dissenting) (describing the “ ‘[l]oss of privileges’ “ such as “community recreation; commissary; 1 that he was deprived of a liberty interest by the disciplinary proceedings. 2 b. Evidence Supported the Sanction 3 Even if no liberty interest is implicated, procedural due process rights may be violated 4 when a prison disciplinary sanction is supported by no evidence. See Burnsworth v. Gunderson, [5] 179 F.3d 771, 773-74 (9th Cir. 1999). The “no evidence” standard is that of Superintendent v. 6 Hill, 472 U.S. 445, 455-56 (1985). See Burnsworth, 179 F.3d at 773 . In Hill, the Supreme Court 7 held that disciplinary proceedings do not satisfy due process requirements unless there is “some 8 evidence” in the record to support the findings of the prison disciplinary board. 472 U.S. at 455. 9 “Ascertaining whether [the] standard is satisfied does not require examination of the entire record, 10 independent assessment of the credibility of witnesses or weighing of the evidence. Id. Instead, 11 the relevant question is whether there is any evidence in the record that could support the 12 conclusion reached.” Id. at 455-56. Additionally, the Ninth Circuit has held that there must be 13 “some indicia of reliability” of the information that forms the basis for prison disciplinary actions. 14 See Cato v. Rushen, 824 F.2d 703, 704-05 (9th Cir. 1987). 15 In this case, no reasonable jury could find that the disciplinary finding was not supported 16 by “some evidence.” As to discipline for possession of a cell phone, there was evidence to support 17 the finding in the form of the RVR from Defendants, the testimony from non-defendant Officer 18 Beck, and the physical evidence of the cell phone.3 19 Independent assessments of Defendants’ credibility are not required in finding that there 20 was some evidence. See Hill, 472 U.S. at 455. Also, the undisputed facts show “some indicia of 21 reliability” to the RVR because: (1) Defendants were present at the scene of the search; (2) Officer 22 Beck was present at the scene of the search and confirmed that marijuana and a cell phone were [23] process claim for deprivation of television, certain property, access to commissary, and restrictions [24] on outdoor exercise for twenty-six months); Jones v. McDaniel, 552 F. Supp. 2d 1141, 1146 (D. Nev. 2008) (loss of phone and canteen privileges not atypical and significant hardship). [25] 3 As to the possession of marijuana, this disciplinary charge was dismissed and Mr. Jackson [26] suffered no consequences for it. The Ninth Circuit has held that a prisoner is not denied due process where a due process error is “corrected in the administrative appeal process,” which is [27] “part of the due process afforded prisoners.” Frank v. Schultz, 808 F.3d 762, 764 (9th Cir. 2015) 1 found in the cell; and (3) marijuana and a cell phone were recovered. Because no liberty interest 2 was implicated and the discipline was supported by some reliable evidence, there was no violation 3 of Mr. Jackson’s right to due process. 4 The Constitution demands due process in disciplinary procedures, not error-free decision5 making. Ricker v. Leapley, 25 F.3d 1406, 1410 (8th Cir. 1994). The process due in such a prison 6 disciplinary proceeding includes written notice of the charges, time to prepare for the hearing, a 7 written statement of decision, allowance of witnesses and documentary evidence when not unduly 8 hazardous to institutional safety or correctional goals, and aid to the accused where the inmate is 9 illiterate or the issues are complex. Wolff v. McDonnell, 418 U.S. 539, 564-67 (1974). There is no 10 allegation that any of these protections were absent here. See generally, SAC. 11 In sum, Mr. Jackson’s due process claim fails as to the cell phone because he did not suffer 12 a deprivation of real substance, there was at least some evidence to support the RVR, and he 13 received the due process protections guaranteed by Wolff. Defendants are entitled to summary 14 judgment as to Mr. Jackson’s challenge to the disciplinary proceedings. 15 2. Criminal Charges 16 There is a “clearly established due process right not to be subjected to criminal charges on 17 the basis of false evidence that was deliberately fabricated by the government.” Devereaux v. 18 Abbey, 263 F.3d 1070, 1074-75 (9th Cir. 2001). 19 To prevail on a § 1983 claim of deliberate fabrication, a plaintiff must prove that (1) the defendant official deliberately fabricated 20 evidence and (2) the deliberate fabrication caused the plaintiff’s deprivation of liberty. . . . To establish the second element of 21 causation, the plaintiff must show that (a) the act was the cause in fact of the deprivation of liberty, meaning that the injury would not 22 have occurred in the absence of the conduct; and (b) the act was the “proximate cause” or “legal cause” of the injury, meaning that the 23 injury is of a type that a reasonable person would see as a likely result of the conduct in question. [24] 25 Spencer v. Peters, 857 F.3d 789, 798 (9th Cir. 2017) (citations omitted). 26 Mr. Jackson’s claim fails because he presents no evidence the RVR was fabricated.4 [27] 1 Indeed, Mr. Jackson does not even state under oath that he did not possess marijuana and a cell 2 phone. See SAC; see also Docket Nos. 34-1 & 34-2 (declarations filed as exhibits to the 3 opposition, challenging inconsistencies in Defendants’ documentation but not making this simply 4 statement). He thus has not submitted any admissible evidence that the RVR was false. 5 Rather than submitting evidence showing the RVR was false, Mr. Jackson argues that the 6 RVR must have been fabricated because the criminal and disciplinary charges against him were 7 dismissed, and because the timeline in the RVR is confusing. See id.; see also Opp. at 4. The 8 record does not support Mr. Jackson’s desired inference. 9 Although the criminal charges against Mr. Jackson were dismissed, the record does not 10 include a finding that they were based on a false report. Rather, the criminal charges were 11 dismissed in “furtherance of justice.” See SAC, Ex. E. This is consistent with Defendants’ 12 argument that the Superior Court was following appellate authority which rendered Mr. Jackson’s 13 conduct non-criminal. See MSJ at 5. Similarly, the hearing officer did not find that the RVR 14 against Mr. Jackson was fabricated, but rather dismissed the disciplinary charges because “[t]he 15 preponderance of the evidence presented at the hearing does not substantiate the charge . . . .” 16 Gonzales Decl., Ex. C at 27. The hearing officer also submitted a declaration stating that he did 17 not find that the RVR was fabricated. See id. at ¶ 8. Thus, the inferences Mr. Jackson asks the 18 Court to draw are contradicted by the record. 19 Mr. Jackson also contends that the RVR must have been fabricated because the timeline 20 would require Defendants to be in two places at once. See generally, Opp. Not so. As 21 Defendants explain, they secured cells 211 and 311 by removing the inmates from both cells, and 22 then went back and searched both cells. See Reply at 4 (summarizing Defendants’ statements, 23 with citations); see also Luna Decl. & Ex. C, Villasenor Decl. & Ex. B (RVR, showing this pattern 24 of activity). In other words, Mr. Jackson assumes the sequence of events ran secure-search25 secure-search, when in fact it ran secure-secure-search-search. Mr. Jackson’s misunderstanding of [27] dismissed on a technicality. See MSJ at 10 (describing dismissal). The only hardship Mr. Jackson 1 the chain of events does not constitute evidence that the RVR was fabricated. 2 By contrast, Defendants presented admissible evidence showing the RVR was not 3 fabricated. First, Defendants swear under oath that they found marijuana and a cell phone in Mr. 4 Jackson’s cell upon searching that cell. See generally, Luna Decl. & Villasenor Decl. Second, 5 non-defendant Officer Beck provided a declaration supporting the truth of the RVR. See Beck 6 Decl. Officer Beck stated that the dog used to search Mr. Jackson’s cell is “specifically trained to 7 detect . . . cellular phones, tobacco, and controlled substances.” Id. ¶ 3. This dog “‘alerted’ to 8 several areas in the cell,” id. ¶ 4, and the contraband was later found in the areas in which the dog 9 had alerted, id. ¶ 5. Third, in addition to his declaration in this action, Officer Beck filed a 10 contemporaneous incident report which stated that the dog had alerted to specific areas and that 11 Officer Beck had then informed Defendants of the areas to which the dog had alerted. See id., Ex. 12 A at 5. That, too, has been included in the record. Fourth, Defendants have provided photographs 13 of the marijuana and cell phone. See Luna Decl., Exs. A-B; Villasenor Decl., Ex. A. 14 Mr. Jackson’s due process claim fails as to the marijuana because he has provided no 15 evidence that the RVR was fabricated – the theory underlying his due process claim – and 16 Defendants have provided evidence that it was not. Defendants are entitled to judgment as a 17 matter of law. See Fed. R. Civ. P. 56(a). 18 VI. CONCLUSION 19 For the foregoing reasons, Defendants’ motion for summary judgment is GRANTED. Docket 20 No. 33. Defendants are entitled to judgment in their favor. The Clerk shall close the file. 21 This order disposes of Docket No. 33. [22] 23 IT IS SO ORDERED. [24] 25 Dated: September 29, 2023 [26] 27 ______________________________________