Riley v. Vizcarra

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 SHANNON RILEY, Case No.: 3:18-cv-02911-JAH-BLM CDCR # E-48875, [12] ORDER GRANTING DEFENDANTS' Plaintiff, 13 MOTION TO DISMISS v. PLAINTIFF'S FIRST AMENDED [14] COMPLAINT PURSUANT TO FED. L. VIZCARRA, Correctional Officer; 15 R. CIV. P. 12(b)(6) S. ALVAREZ, Correctional Officer; 16 J. LUNA, Correctional Lieutenant, (ECF No. 19) 17 Defendants. [18] 19 Shannon Riley (“Plaintiff”), a state prisoner proceeding pro se and in forma 20 pauperis, brought this action under 42 U.S.C. Section 1983 alleging that two correctional 21 officers, Vizcarra and Alvarez, and a lieutenant, Luna (collectively, “Defendants”) at the 22 Richard J. Donovan Correctional Facility (“RJD”) violated his First, Eighth, and 23 Fourteenth Amendment rights in two incidents that took place in February and March 24 2018. (See First Am. Compl., ECF No. 17, at 10.) 25 Defendants move to dismiss the First and Fourteenth Amendment claims in [28] 1 Plaintiff’s First Amended Complaint pursuant to Federal Rule of Civil Procedure 2 12(b)(6).2 (Mot., ECF No. 19.) Plaintiff filed an Opposition to Defendants’ Motion, and 3 Defendants did not file a reply. (Opp’n, ECF No. 22.) 4 For the reasons set forth more fully below Defendants’ Motion is GRANTED with 5 leave to amend. 6 I. Plaintiff’s Allegations 7 Plaintiff was housed at RJD in 2018. (First Am. Compl. ¶ 3.) On February 18, 8 2018, during a visit with his girlfriend, Plaintiff went to use the restroom. (Id. ¶ 10.) To 9 access the inmate restrooms, Plaintiff knocked on a door at the back of the visiting area, 10 which one of the Defendants, Officer Vizcarra, opened for him. (Id. ¶ 12.) As required 11 by prison regulations, Plaintiff removed all but his underwear and began to use the toilet 12 before Vizcarra stopped him, ordering him to “strip out,” bend over, spread his buttocks, 13 squat, and cough. (Id. ¶¶ 14-16.) Plaintiff was “caught off guard” by the order and 14 replied, “I’m not leaving, I just need to use the restroom.” (See id. ¶¶ 17-18 .) Vizcarra 15 repeated his order to strip out, and Plaintiff asked “for what? I’m just about to use the 16 restroom.” (Id. ¶¶ 19-20.) In response, Vizcarra became “extremely aggressive,” 17 standing face-to-face with Plaintiff, yelling, and otherwise making Plaintiff feel 18 threatened. (See id. ¶¶ 21-25 .) Plaintiff slowly backed away, complied with Vizcarra’s 19 order, and left the area. (See id. ¶ 25 .) 20 Following this incident, Plaintiff filed a staff complaint against Vizcarra requesting 21 various personnel actions be taken, including reassigning Vizcarra or instructing him to [23] 1 Plaintiff requested and was granted leave to amend his original Complaint in response [24] to Defendants’ initial motion to dismiss on July 1, 2019. (See ECF No. 18.) [25] 2 The introduction to Defendants’ Motion asserts that the Court “should dismiss the First [26] Amended Complaint because the allegations fail to state a claim for which relief may be 27 granted as to Plaintiff’s . . . Eighth Amendment cruel and unusual punishment claim . . . .” (Mot. at 1.) The Motion does not, however, make any argument for why [28] 1 refrain from similar conduct in the future. (See id. Ex. A.) Plaintiff also wrote to RJD’s 2 Warden to complain about Vizcarra’s actions and to request an investigation and 3 Vizcarra’s removal. (See id. Ex. B.) 4 Plaintiff alleges that a few weeks later, Vizcarra and another Defendant, Officer 5 Alvarez, retaliated against him because of these complaints, violating his First 6 Amendment rights.3 (Id. ¶ 34.) On March 11, 2018, Plaintiff was drinking a cup of 7 coffee during another visit by his girlfriend. (Id. ¶¶ 35-37.) When he finished his coffee, 8 Plaintiff asked another inmate to throw the cup away for him. (Id. ¶¶ 41, 43.) Before the 9 other inmate was able to throw Plaintiff’s cup away, Alvarez stopped him and took the 10 empty cup. (Id. ¶ 44.) Shortly thereafter, Vizcarra ended Plaintiff’s visit with his 11 girlfriend, and ordered Plaintiff “to stand up and place his hands behind his back.” (Id. ¶ 12 47.) Showing his medical chrono, Plaintiff explained that because of medical issues 13 including a herniated disc and right wrist injury, he is unable to place his hands behind 14 his back without experiencing painful cramps. (See id. ¶¶ 30-31, 50-51 .) As a result of 15 these conditions, Plaintiff’s chrono requires the use of waist chains rather than handcuffs. 16 (See id. Ex. C.) 17 Despite Plaintiff’s documented medical conditions, he alleges that Vizcarra forced 18 his hands behind his back and handcuffed him. (Id. ¶ 52.) Vizcarra then left Plaintiff 19 cuffed in the “non-contact visiting tank” for 45 minutes to an hour while Plaintiff 20 experienced “excruciating pain” and “begged and pleaded” for someone to uncuff him. 21 (See id. ¶¶ 53-58 .) Eventually Vizcarra returned to uncuff Plaintiff and ordered him to 22 “strip out.” (Id. ¶ 60.) Because of the cuffing, Plaintiff was unable to move his right arm 23 and was in pain in his neck and back. (Id. ¶¶ 62-63.) Stepping inside the visiting tank, [26] 3 Plaintiff also requests a declaratory judgment that the third Defendant, Lieutenant Luna, 27 retaliated against him, but the Complaint does not describe how Luna participated in the alleged retaliation. (See First Am. Compl. at VII(A)(1).) As explained more fully in Part [28] 1 Vizcarra threatened Plaintiff with his baton and stating that he would “crush [Plaintiff’s] 2 skull” if Plaintiff moved (Id. ¶¶ 64, 68.) Vizcarra also pulled Plaintiff out of the room, 3 slamming him against the wall and twisting his wrist. (Id. ¶¶ 65-67.) After again ordered 4 Plaintiff to “strip out,” which Plaintiff protested, Vizcarra put him back in handcuffs and 5 returned him to the non-contact tank for thirty more minutes. (Id. ¶¶ 69-71.) 6 When Vizcarra finally uncuffed Plaintiff, he threatened to write a Rule Violation 7 Report (“RVR”) alleging that Plaintiff possessed alcohol during visitation that day, an 8 assertion Plaintiff denies. (Id. ¶¶ 73-74.) Plaintiff sought medical attention for 9 continuing pain that resulted from this incident and filed a staff complaint against 10 Vizcarra for retaliation and violating his Eighth Amendment rights. (See id. ¶¶ 75-76, 79 , 11 Ex. E.) Later, Plaintiff filed another staff complaint alleging that Vizcarra was spreading 12 rumors about Plaintiff. (Id. ¶ 80, Ex. G.) 13 On March 11, Alvarez submitted an RVR alleging that Plaintiff possessed alcohol 14 during visitation earlier in the day. (Id. Ex. H.) Vizcarra provided a supplemental report 15 included with this RVR, offering a substantially different description of that day’s events 16 than Plaintiff’s Complaint. (See id. Ex. H.) Plaintiff subsequently pleaded not guilty and 17 appeared for a hearing on the RVR before Lieutenant Luna. (Id. ¶ 82, Ex. H.) 18 At this hearing, Plaintiff alleges that Luna violated his Fourteenth Amendment Due 19 Process rights in several respects. First, although Plaintiff was assigned an investigative 20 employee to assist him in responding to the RVR (see id. Ex. H), Plaintiff alleges that 21 Luna denied his requests to call at Alvarez and Vizcarra as witnesses at the hearing. (Id. 22 ¶ 84.) While Luna permitted Plaintiff to provide a list of questions for Alvarez, Plaintiff 23 alleges that Luna read the questions to Alvarez and directed her on how to answer. (Id. 24 ¶¶ 95-97.) Second, Plaintiff argues that he was deprived of the ability to defend himself 25 against the RVR because no testing was performed that would have proved whether he 26 consumed alcohol, nor was it possible for Plaintiff to inspect the cup because it was 27 thrown away before the hearing. (See id. ¶¶ 85-88, 90-94 , Ex. H.) As support for his 28 testing argument, Plaintiff points to a state regulation which sets forth the grounds for 1 obtaining a urine sample from an inmate “for the purpose of testing for . . . use of 2 alcohol . . . ,” or field testing seized substances. 15 Cal. Code Reg. § 3290(c). The 3 regulation provides that field tests of suspected substances “may be performed” and that 4 urinalysis “may be done” “[w]hen there is reasonable suspicion to believe the inmate has 5 possessed, distributed, used, or is under the influence of . . . alcohol.” Id. (c)(1). Plaintiff 6 requested that such an analysis be performed the day after the incident.4 (See First Am. 7 Compl. ¶ 85, Ex. I.) Although this request was forwarded by prison officials, Plaintiff 8 alleges that it was ignored, and no testing took place. (See id. ¶ 88, Ex. I.) 9 Following the hearing, Luna found plaintiff guilty and assessed losses of credit and 10 pay and a thirty-day suspension of visiting privileges, concluding that a “preponderance 11 of the evidence . . . supports a GUILTY finding” for possession of alcohol. (Id. Ex. H 12 (emphasis in original).) In support of this finding, Luna cited as evidence the RVR 13 submitted by Alvarez and Plaintiff’s not guilty plea. (Id.) Plaintiff alleges that this 14 finding also violated his right to due process because Luna did state “‘specifically’ what 15 evidence [he] relied upon.” (Id. ¶ 100.) Plaintiff subsequently appealed and alleges that 16 he exhausted all available administrative remedies prior to filing suit. (Id. ¶¶ 7, 101.) 17 II. Defendants’ Motion to Dismiss 18 a. Legal Standard 19 Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss 20 on the grounds that a complaint “fail[s] to state a claim upon which relief can be granted.” 21 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal 22 sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). 23 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 24 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, [25] 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); [27] 4 Plaintiff also notes that another inmate who was allegedly drinking on March 11 was [28] 1 Villa v. Maricopa Cnty., 865 F.3d 1224, 1228-29 (9th Cir. 2017). A claim is facially 2 plausible “when the plaintiff pleads factual content that allows the court to draw the 3 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 4 U.S. at 678. Plausibility requires pleading facts, as opposed to conclusory allegations or 5 the “formulaic recitation of the elements of a cause of action,” Twombly, 550 U.S. at 555 , 6 which rise above the mere conceivability or possibility of unlawful conduct. Iqbal, 556 7 U.S. at 678-79; Somers v. Apple, Inc., 729 F.3d 953, 959-60 (9th Cir. 2013). “Threadbare 8 recitals of the elements of a cause of action, supported by mere conclusory statements, do 9 not suffice.” Iqbal, 556 U.S. at 678 . While a pleading “does not require ‘detailed factual 10 allegations,’” Rule 8 nevertheless “demands more than an unadorned, the defendant11 unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 12 555). 13 Therefore, “[f]actual allegations must be enough to raise a right to relief above the 14 speculative level.” Twombly, 550 U.S. at 555 . “Where a complaint pleads facts that are 15 merely consistent with a defendant’s liability, it stops short of the line between possibility 16 and plausibility of entitlement to relief.” Iqbal, 556 U.S. at 678 (citation and quotes 17 omitted); accord Lacey v. Maricopa Cnty., 693 F.3d 896, 911 (9th Cir. 2012) (en banc). 18 “In sum, for a complaint to survive a motion to dismiss, the non-conclusory ‘factual 19 content,’ and reasonable inferences [drawn] from that content, must be plausibly 20 suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 21 962, 969 (9th Cir. 2009) (quoting Iqbal, 556 U.S. at 678 ). 22 b. First Amendment Retaliation Claims 23 Plaintiff’s retaliation claims focus on (1) the RVR filed by Alvarez (and 24 supplemented by Vizcarra) alleging that Plaintiff possessed alcohol, and (2) the alleged 25 threats and assault by Vizcarra, both of which happened within a few weeks of Plaintiff 26 filing a staff complaint against Vizcarra. (See First Am. Compl. at 10 (alleging that 27 Vizcarra assaulted and threatened Plaintiff and that Alvarez was “acting in concert” with 28 Vizcarra).) Although it is not the subject of Defendants’ motion to dismiss, Plaintiff also 1 alleges that Defendant Luna retaliated against him. (See id. (requesting a declaratory 2 judgment that, among other things, Defendant Luna “violated plaintiff’s 1st.amend.right 3 [sic] to free speech and to petition the government for redress without being subjected to 4 Retaliation.”).) 5 A retaliation claim has five elements. See Brodheim v. Cry, 584 F.3d 1262 , 1269 6 (9th Cir. 2009). First, Plaintiff must allege that the retaliated-against conduct is 7 protected. Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012). Second, Plaintiff 8 must allege that Defendants took adverse action against him. Id. at 567. The adverse 9 action need not be an independent constitutional violation. Pratt, 65 F.3d at 806. “[T]he 10 mere threat of harm can be an adverse action . . . .” Brodheim, 584 F.3d at 1270 . Third, 11 Plaintiff must allege a causal connection between the adverse action and the protected 12 conduct, that is that Defendants had a retaliatory motive. Watison, 668 F.3d at 1114 . 13 Fourth, Plaintiff must allege the “official’s acts would chill or silence a person of 14 ordinary firmness from future First Amendment activities.” Rhodes, 408 F.3d at 568 15 (internal quotation marks and emphasis omitted). “[A] plaintiff who fails to allege a 16 chilling effect may still state a claim if he alleges he suffered some other harm,” 17 Brodheim, 584 F.3d at 1269 , that is “more than minimal,” Robinson, 408 F.3d at 568 18 n.11. Fifth, Plaintiff must allege “that the prison authorities’ retaliatory action did not 19 advance legitimate goals of the correctional institution . . . .” Rizzo v. Dawson, 778 F.2d 20 532, 532 (9th Cir. 1985); see also Watison, 668 F.3d at 1114-15 . 21 Defendants do not dispute that Plaintiff has adequately alleged the first two 22 elements. Filing an inmate grievance, like Plaintiff did against Vizcarra, is protected 23 conduct. See Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005) (“[Plaintiff] 24 exercised his First Amendment rights to file prison grievances . . . .”); see also Watison, [25] 668 F.3d at 1114 (“Prisoners have a First Amendment right to file grievances against 26 prison officials and to be free from retaliation for doing so.” (citing Brodheim, 584 F.3d 27 at 1269)). And both the alleged assault by Vizcarra and the submission of the RVR 28 against Plaintiff constituted “adverse action.” See Rhodes, 408 F.3d at 568 (alleged 1 assault by prison officials constituted an adverse action); see also Stevenson v. Harmon, 2 No. 07-CV-1619 W (NLS), 2009 WL 10700432 , at *4 (S.D. Cal. July 30, 2009) (“The 3 issuance of an RVR constitutes an adverse action.” (citing Andrews v. Whitman, No. 064 2447-LAB(NLS), 2009 WL 857604 , at *24 (S.D. Cal. Mar. 27, 2009)). 5 Defendants focus instead on the third element, causation, arguing that “absent in 6 [Plaintiff’s] allegations are any facts establishing that Plaintiff’s exercise of free speech 7 was the motivating factor for Vizcarra to take the actions he allegedly did, and any 8 circumstantial ‘proximity-in-time’ argument fails.” (Mot. at 9; see also id. (stating that 9 “circumstantial evidence of timing, without more, is insufficient.” (citing Pratt, 65 F.3d 10 at 808)).) Additionally, Defendants assert that Plaintiff’s allegations against Alvarez are 11 insufficient because “[t]here is nothing to show that Alvarez [submitted the RVR] 12 because of Plaintiff’s First Amendment conduct, that this action chilled his rights, or that 13 her actions did not further a legitimate penological interest.” (Mot. at 9.) 14 Plaintiff’s retaliation claim against Vizcarra fails because he does not allege any 15 facts connecting his staff complaint to the alleged retaliation. The Complaint does not 16 allege that Vizcarra was aware that Plaintiff filed a staff complaint, let alone that his 17 subsequent actions were motivated by such knowledge. See Pratt, 65 F.3d at 807-08 18 (concluding that, in the absence of factual allegations to the contrary, it would be “sheer 19 speculation” to assume that prison officials were aware of an inmate’s First Amendment 20 activity and retaliated on that basis). As Plaintiff rightly points out, because direct 21 evidence of retaliatory intent is typically outside a plaintiff’s personal knowledge and 22 therefore can rarely be pleaded in a complaint, alleging “a chronology of events from 23 which retaliation can be inferred is sufficient to survive dismissal.” Watison, 668 F.3d at 24 1114 (citing Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995) (“[T]iming can properly 25 be considered as circumstantial evidence of retaliatory intent.”)). But “[t]iming alone . . . 26 is generally not enough to support an inference that prison officials took an adverse 27 action against a prisoner in retaliation for the prisoner’s participation in protected 28 conduct.” O’Brien v. Gularte, No. 18-cv-BAS-MDD, 2019 WL 77112 , at *3 (S.D. Cal. 1 Jan. 2, 2019). A Plaintiff still must allege “‘sufficient facts to plausibly suggest a nexus 2 between’ the alleged protected activity and the adverse action taken by a defendant.” Id. 3 (quoting Rojo v. Paramo, No. 13cv2237 LAB (BGS), 2014 WL 2586904 , at *5 (S.D. Cal. 4 June 10, 2014)); see also Hammler v. Alvarez, No. 18-CV-326-AJB(WVG), 2019 WL 5 422575, at *9 (S.D. Cal. Feb. 4, 2019) (“Mere allegations of timing—without more—are 6 not sufficient to satisfy [the causation] element.” (citing Pratt, 65 F.3d at 807-08 )). 7 Plaintiff does not allege any facts that would plausibly suggest a nexus between his 8 staff complaint and the alleged retaliation. Even assuming that proximity in time 9 between these two events is evidence of a retaliatory motive on the part of Vizcarra, it is 10 not sufficient by itself to plausibly allege that Vizcarra was motivated by the staff 11 complaint. Unlike other cases involving alleged retaliation, Plaintiff does not allege, for 12 example, that Vizcarra mentioned the staff complaint to Plaintiff or even that he was 13 aware of the complaint. See, e.g., Shepard v. Quillen, 840 F.3d 686, 690 (9th Cir. 2016) 14 (threatening to segregate inmate if he reported wrongdoing followed by same-day 15 transfer after inmate refused to recant report sufficient to show that the transfer was 16 “motivated by a desire to retaliate.”) (citing McCollum v. Cal. Dep’t of Corrs. & Rehab., [17] 647 F.3d 870, 882 (9th Cir. 2011)); Watison, 668 F.3d at 1115-16 (finding statements like 18 “Your emergency grievance isn’t going to stand” and “They’re not going to do nothing 19 with those grievances you filed against me,” suggested that officer’s conduct was 20 retaliatory); cf. Pratt, 65 F.3d at 807-09 (“Most importantly, there is insufficient evidence 21 to support the district court’s finding that . . . DOC officials who were involved in the 22 transfer decision were actually aware of” plaintiff’s First Amendment conduct). In the 23 absence of allegations tying the staff complaint to the alleged retaliation, the only basis 24 for concluding that Vizcarra had a retaliatory motive is speculation. As a result, 25 Plaintiff’s retaliation claim against Vizcarra is DISMISSED with leave to amend. 26 Plaintiff’s allegations against Alvarez are even more speculative. Plaintiff 27 seemingly assumes, without alleging more than that Alvarez was “acting in concert” with 28 Vizcarra, that Vizcarra and Alvarez were aware of Plaintiff’s staff complaint and that 1 Alvarez agreed to help Vizcarra retaliate against Plaintiff. (See First Am. Compl. at 10.) 2 The conclusory assertion that the two officers were acting in concert is plainly 3 insufficient to allege retaliatory motive on the part of Alvarez. See, e.g., Hammler, 2019 4 WL 422575 , at *9 (“Because Plaintiff alleges no facts to show that [the officer] had any 5 prior knowledge of this grievance, there are no facts to suggest that [the officer] issued 6 the RVR in retaliation for the filing of a grievance.”); Flynn v. City of Santa Clara, 388 7 F. Supp. 3d 1158, 1164-65 (N.D. Cal. 2019) (dismissing claims against individual 8 officers where there were no allegations they were aware of the Plaintiff’s First 9 Amendment activity and rejecting argument that officers without knowledge of protected 10 speech could be held liable for retaliation by acting “in concert” with ones with 11 knowledge). Accordingly, Plaintiff’s First Amendment retaliation claim against Alvarez 12 is DISMISSED with leave to amend. 13 Although Defendants have not moved to dismiss the First Amendment claim 14 against Luna, to the extent Plaintiff asserts such a claim, the Court finds that sua sponte 15 dismissal is required under 28 U.S.C. Sections 1915 (e)(2)(B)(ii). The sole First 16 Amendment allegation against Luna in the Complaint is a paragraph requesting a 17 declaratory judgment that “[t]he acts and conduct of officer . . . Luna violated plaintiff’s 18 1st.amend.right [sic] to free speech and to petition the government for redress without 19 being subjected to Retaliation.” (First Am. Compl. at 10.) Although, and as discussed 20 below, the Complaint alleges facts regarding Luna’s alleged violations of Plaintiff’s due 21 process rights, without more, this conclusory sentence does not state a claim for First 22 Amendment retaliation by Luna. Accordingly, any First Amendment claim against Luna 23 is sua sponte DISMISSED with leave to amend. See 28 U.S.C. § 1915 (e)(2)(B)(ii) 24 (requiring the court to sua sponte dismiss any claim brought in forma pauperis “at any 25 time” if it finds the complaint fails to state a claim); see also Lopez v. Smith, 203 F.3d 26 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. Section 1915 (e) “not only 27 permits but requires” sua sponte dismissal of in forma pauperis complaints that fail to 28 state a claim). 1 c. Fourteenth Amendment Due Process Claims 2 The Fourteenth Amendment provides that “[n]o state shall . . . deprive any person of 3 life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. “The 4 requirements of procedural due process apply only to the deprivation of interests 5 encompassed by the Fourteenth Amendment’s protection of liberty and property.” Bd. of 6 Regents v. Roth, 408 U.S. 564, 569 (1972). “To state a procedural due process claim, [a 7 plaintiff] must allege ‘(1) a liberty or property interest protected by the Constitution; (2) a 8 deprivation of the interest by the government; [and] (3) lack of process.’” Wright v. 9 Riveland, 219 F.3d 905, 913 (9th Cir. 2000) (quoting Portman v. Cnty. of Santa Clara, 995 10 F.2d 898, 904 (9th Cir. 1993)). 11 A prisoner is entitled to certain due process protections when he is charged with a 12 disciplinary violation. Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003) (citing 13 Wolff v. McDonnell, 418 U.S. 539, 564-571 (1974)). “Such protections include the rights 14 to call witnesses, to present documentary evidence and to have a written statement by the 15 fact-finder as to the evidence relied upon and the reasons for the disciplinary action taken.” 16 Id.; see also Wolff, 418 U.S. at 566 (explaining that an inmate must be afforded an 17 opportunity “to call witnesses and present documentary evidence in his or her defense when 18 permitting him to do so will not be unduly hazardous to institutional safety or correctional 19 goals.”). 20 Plaintiff alleges that Defendant Luna denied him due process when his requests to 21 call Alvarez and Vizcarra as witnesses at the RVR hearing were denied, and when his 22 requests for urinalysis, testing of the substance he was allegedly drinking, and examination 23 of the cup, which was destroyed by Alvarez, were also denied. (See First Am. Compl. ¶¶ 24 84-94.) Further, Plaintiff alleges that Luna deprived him of due process when, rather than 25 allow Plaintiff to question Alvarez directly, Luna read Plaintiff’s questions to Alvarez and 26 coached her on how to respond. (See id. ¶¶ 95-97.) 27 Although Defendants did not raise this issue in their motion to dismiss, Plaintiff’s 28 due process claims must be dismissed sua sponte pursuant to 28 U.S.C. Section 1 1915(e)(2)(B)(ii) because the Complaint does not allege facts sufficient to show that the 2 RVR proceedings implicated a liberty interest that would trigger the procedural protections 3 in Wolff. See 28 U.S.C. § 1915 (e)(2)(B)(ii) (requiring the court to dismiss sua sponte any 4 claim brought in forma pauperis “at any time” if it finds the complaint fails to state a claim). 5 The procedural protections in Wolff “adhere only when the disciplinary action implicates a 6 protected liberty interest in some ‘unexpected matter’ or imposes an ‘atypical and 7 significant hardship on the inmate in relation to the ordinary incidents of prison life.’” 8 Serrano, 345 F.3d at 1077 (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995); Ramirez 9 v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003)). 10 While the level of hardship necessary to show a liberty interest must be determined 11 on a case-by-case basis, and “[i]n Sandin’s wake the Courts of Appeals have not reached 12 consistent conclusions for identifying the baseline from which to measure what is atypical 13 and significant in any particular prison system,” Wilkinson v. Austin, 545 U.S. 209 , 223 14 (2005), the Ninth Circuit and district courts within it have concluded that the loss of good 15 time credits, visitation privileges, or prison employment, or the assessment of points on an 16 inmate’s record are not by themselves atypical and significant hardships. See, e.g., Salinas 17 v. Montgomery, No. 3:19-cv-0744-AJB-RBB, 2019 WL 2191349 , at *5 (S.D. Cal. May 21, 18 2019) (alleging that an inmate was “assessed a good-time credit loss of 90 days” was 19 insufficient to show atypical and significant hardship); Contreras v. Herrera, No. 3:18-cv20 00717-MMA-AGS, 2018 WL 4961510 , at *5 (S.D. Cal. Oct. 15, 2018) (losing visitation 21 privileges for six months is not an atypical and significant hardship); Meeks v. Nevada, No. 22 3:10-cv-00558-RCJ-RAM, 2011 WL 221774 , at *4 (D. Nev. 2011) (adding points to an 23 inmate’s record, even if they made it impossible to transfer to less restrictive prison, are 24 not an atypical and significant hardship); see also Walker v. Gomez, 370 F.3d 969, 973 (9th 25 Cir. 2004) (“[T]he Due Process Clause of the Fourteenth Amendment ‘does not create a 26 property or liberty interest in prison employment . . . .’” (quoting Ingram v. Papalia, 804 27 F.2d 595, 596 (10th Cir. 1986) (per curiam))); see also Wilkinson, 545 U.S. at 223 (“[T]he 28 touchstone of the inquiry into the existence of a protected, state-created liberty interest in 1 avoiding restrictive conditions of confinement is not the language of regulations regarding 2 those conditions but the nature of those conditions themselves ‘in relation to the ordinary 3 incidents of prison life.’” (quoting Sandin, 515 U.S. at 484 )); Murschel v. Paramo, No. 4 3:17-cv-1142-BTM-AGS, 2018 WL 539159 , at *5 (S.D. Cal. 2018) (“The issuance of a 5 false RVR, alone, does not state a claim under section 1983.”) (citing Dawson v. Beard, 6 No. 15-cv-01867 DLB, 2016 WL 1137029 , at *5-6 (E.D. Cal. 2016)); but see Sandin, 515 7 U.S. at 487 (due process protections attach “where the State’s action will inevitably affect 8 the duration of [plaintiff’s] sentence.”). 9 Plaintiff alleges that he lost thirty days of good time credit, ninety days of pay, thirty 10 days of visitation privileges, and six custody points. (First Am. Compl. ¶ 99.) But no other 11 facts are alleged from which the Court could find that Plaintiff suffered a change in 12 confinement that imposed an “atypical and significant hardship” such that the procedural 13 protections in Wolff applied to Plaintiff’s RVR hearing. As a result, Plaintiff’s Fourteenth 14 Amendment claims are DISMISSED in their entirety, but with leave to amend.5 15 Even assuming that Plaintiff adequately alleged an atypical and sufficient hardship 16 and thus a liberty interest under the Due Process Clause, several of his due process 17 allegations are nevertheless subject to dismissal. For example, Plaintiff fails to state a 18 claim for violations of due process with respect to the denial of his request for urinalysis 19 or testing or examination of the cup from which he was allegedly drinking. “Courts 20 confronting due process claims based on prison officials’ denial of requests for 21 fingerprinting and other scientific analyses have concluded that the minimal due process 22 guarantees prescribed by Wolff do not encompass a right to have evidence tested for 23 fingerprints or subjected to similar scientific analyses. Rather, Wolff gives the inmates [26] 5 Because Plaintiff’s Fourteenth Amendment claims are dismissed in their entirety, but 27 with leave to amend, the Court need not address Plaintiff’s allegations that his requests to call Alvarez and Vizcarra as witnesses at the hearing were denied the claim or the claim [28] 1 the right to present evidence that they collect (alone or with the help of a fellow inmate or 2 staff member for ‘complex matters’), subject to the qualification that ‘[w]hen prison 3 officials limit an inmate’s efforts to defend himself, they must have a legitimate 4 penological reason.’” Barboza v. Kelsey, No. 03-3855 AHM (AJW), 2008 WL 2512785 , 5 at *11 (C.D. Cal. June 23, 2008) (quoting Koenig v. Vannelli, 971 F.2d 422, 423 (9th Cir. 6 1992) (per curiam)). 7 To the extent Plaintiff alleges that Luna and other prison officials violated due 8 process by failing to adhere to the regulations governing urinalysis or field testing, this 9 too fails to state a claim because prison regulations are “primarily designed to guide 10 correctional officials in the administration of a prison” and are “not designed to confer 11 rights on inmates.” Sandin, 515 U.S. at 481-82 ; see also Singleton v. Kernan, No. 3:1612 cv-2462-BAS-NLS, 2019 WL 142190 , at *8 (S.D. Cal. Jan. 8, 2019) (collecting cases). 13 In any event, the regulations Plaintiff cites are permissive, not mandatory, and did not 14 require prison officials to test the contents of the cup or Plaintiff’s urine, whether on their 15 own or at Plaintiff’s request. See generally 15 Cal. Code Reg. § 3290(b), (c) (providing 16 that field testing “may be performed” and that urine samples “may be done” for certain 17 specified reasons). As a result, even if due process required prison officials to comply 18 with these regulations, the regulations were not violated in this case, and Defendants’ 19 motion to dismiss these claims is GRANTED with leave to amend. 20 Likewise, Plaintiff’s argument that Luna’s finding of guilt on the RVR violated 21 due process because Luna “failed to state ‘specifically’ what evidence [he] relied upon,” 22 also fails to state a claim. (See First Am. Compl. ¶ 100.) As mentioned, Wolff requires 23 that a prisoner be provided with “a written statement of the factfinders as to the evidence 24 relied upon and the reasons for the disciplinary action taken.” Wolff, 418 U.S. at 563 . In 25 support of his finding of guilt, Luna provided Plaintiff with a narrative stating that “[a]ll 26 evidence was considered during this hearing and the preponderance of that evidence as 27 described herein supports a GUILTY finding for violating Section 3016(a), with the 28 specific act described as: ‘Possession of Alcohol[.]’” (First Am. Compl. Ex. H.) Luna 1 went on to explain why, contrary to Plaintiff’s argument, testing of the alleged alcohol 2 was not necessary and why possession of alcohol constituted a violation of applicable 3 prison regulations. (See id.) Additionally, in a section captioned “EVIDENCE,” Luna 4 laid out the evidence used to support his finding of guilt, namely Alvarez’s statements in 5 the RVR and Plaintiff’s not guilty plea. (See id.) 6 This is sufficient to satisfy the due process requirements in Wolff. In the prison 7 setting all that is necessary to support disciplinary findings is “some evidence.” See 8 Superintendent v. Hill, 472 U.S. 445, 457 (1985). As other courts have found, written 9 reports by prison officials can supply the evidence necessary to support a finding of 10 guilt.6 See, e.g., Hurd v. Scribner, Civ. No. 06CV0412 JAH(LSP), 2007 WL 1989688 , at 11 *5 (S.D. Cal. May 2, 2007) (finding that a written report by the prison official who 12 ordered plaintiff to submit to urinalysis and testimony of an employee that the plaintiff 13 understood he would be punished for refusal was sufficient due process and constituted 14 “some evidence” in support of the finding of guilt (citing Hill, 472 U.S. at 457 )). The 15 cases cited by Plaintiff in his Complaint are not to the contrary. Setting aside the fact that 16 these cases, Chavis v. Rowe, 643 F.2d 1281 (7th Cir. 1981) and Hayes v. Walker, 555 17 F.2d 625 (7th Cir. 1977) predate the Supreme Court’s decision in Hill, the proposition for 18 which Plaintiff cites them, that “[t]o simply state…‘ Baesd (sic) upon a preponderance of 19 evidence’ is insufficient,” is not at issue in this case. (First Am. Compl. ¶ 101.) Luna’s 20 decision sufficiently explained why he reached the conclusion that he did and the [22] 23 6 Plaintiff argues in his opposition that he was also denied due process when he was denied access to video or photographic evidence of the alleged drinking. (See Opp’n at [24] 9.) This is not alleged in the Complaint, however, and therefore is not properly before 25 the Court. See, e.g., Johnson v. City of San Francisco, No. 16-cv-2913-SI, 2016 WL 5394092 , at *2 (N.D. Cal. Sept. 27, 2016) (“Although plaintiff includes some facts in his [26] opposition to defendant’s motion, the Court’s review is limited to the face of the 27 complaint.”). If Plaintiff wishes to allege violations of due process based on the denial of this evidence, he should include factual allegations regarding the same in his Second [28] 1 evidence upon which he relied in reaching it. Due process does not require more. See 2 Culbert v. Young, 834 F.2d 624, 631 (7th Cir. 1987) (distinguishing Chavis and Hayes 3 and noting that “[w]ith respect to each of the disciplinary reports, the question was 4 whether the plaintiff did or did not do the things recited in the conduct report. In each 5 instance, the only evidence contradicting the conduct report was plaintiff’s own statement 6 in his defense . . . . Because there is no mystery about [the decision-maker’s] reasoning 7 process,” a brief statement of reasons and supporting evidence was sufficient). As a 8 result, Defendants’ motion to dismiss Plaintiff’s due process claims is GRANTED for 9 these reasons as well. 10 CONCLUSION 11 Based on the foregoing, the Court: 12 1. GRANTS Defendants’ Motion to Dismiss Plaintiff’s Complaint pursuant to 13 Fed. R. Civ. P. 12(b)(6) (ECF No. 19). Specifically, the Court GRANTS Defendants’ 14 Motion to Dismiss Plaintiff’s First Amendment retaliation claims against Defendants 15 Vizcarra and Alvarez with leave to amend, and GRANTS Defendants’ Motion to Dismiss 16 Plaintiff’s Fourteenth Amendment Due Process claims pursuant to both Fed. R. Civ. P. 17 12(b)(6) and 28 U.S.C. § 1915 (e)(2)(B)(ii), but with leave to amend. 18 2. DISMISSES Plaintiff’s First Amendment retaliation claim against 19 Defendant Luna sua sponte for failing to state any claim upon which relief can be granted 20 pursuant to 28 U.S.C. § 1915 (e)(2)(B)(ii), but leave to amend. 21 3. GRANTS Plaintiff forty-five (45) days leave from the date this Order is filed 22 in which to file a Second Amended Complaint which cures all the deficiencies of the 23 pleading noted above. Any Second Amended Complaint must be complete in itself without 24 reference to the superseded pleading. See S.D. Cal. Civ. L.R. 15.1. This includes 25 Plaintiff’s Eighth Amendment claim against Defendant Vizcarra, which was not the subject 26 of Defendants’ Motion to Dismiss, and which, if Plaintiff still wishes to pursue it, must be 27 realleged in any Second Amended Complaint. Defendants not named and claims not 28 realleged in the Second Amended Complaint will be deemed to have been waived. See 1 || King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). If Plaintiff's Second Amended 2 ||Complaint fails to state a claim upon which relief may be granted, it may be dismissed 3 || without further leave to amended. See James v. Giles, 221 F.3d 1074, 1077 (9th Cir. 2000). 4 || If Plaintiff does not wish to amend his complaint to cure the deficiencies noted above, and 5 || wishes instead to proceed only with his Eighth Amendment claim against Defendant 6 || Vizcarra, he may do so by notifying the Court and Defendants of that decision in writing 7 ||no later than forty-five (45) days from the date this Order is filed. Should Plaintiff choose 8 ||to proceed in this manner, Defendant Vizcarra shall answer the Eighth Amendment 9 || allegations in Plaintiff’s First Amended Complaint no later than twenty-one (21) days from 10 || the date Plaintiff notifies the Court of his intent to proceed solely with those claims. [11] 12 IT IS SO ORDERED. [13] 14 || Dated: December 2, 2019 15 Hon/John A- Houston 16 Uny ed States District Judge