Opinion
Civ. 2:20-cv-00866-SU
08-10-2021
SHAWN RICHARD MONRO, Plaintiff, v. LISA CAIN; JEFF MOURA; JOE E. CAPPS, Defendants.
FINDINGS & RECOMMENDATION
Patricia Sullivan, United States Magistrate Judge
This civil rights case comes before the Court on Defendants' Motion to Dismiss the First Amended Complaint. ECF No. 22. This matter is appropriate for resolution without oral argument. Defendants' Motion should be GRANTED in part and DENIED in part, as set forth below.
LEGAL STANDARD
I. Failure to State a Claim
To survive a motion to dismiss under the federal pleading standards, the complaint must include a short and plain statement of the claim and “contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard . . . asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. The court is not required to accept legal conclusions, unsupported by alleged facts, as true. Id.
II. Qualified Immunity
A defendant is entitled to qualified immunity if his or her conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald¸ 457 U.S. 800, 818 (1982). The qualified immunity analysis requires a court to address two questions: (1) whether the facts alleged or shown by the plaintiff establish a constitutional violation and (2) whether the right at issue was clearly established at the time. Saucier v. Katz, 533 U.S. 194, 201 (2001). The right must have been clearly established at the time of the defendant's alleged misconduct, so that reasonable official would have understood that what he or she was doing under the circumstances violated that right. Wilson v. Layne, 526 U.S. 603, 615 (1999). Courts have discretion in deciding which prong to address first, depending on the circumstances of the case. Pearson v. Callahan, 555 U.S. 223, 242-43 (2009).
The Supreme Court has repeatedly admonished courts “not to define clearly established law at a high level of generality.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (internal quotation marks and citation omitted). “The dispositive question is whether the violative nature of particular conduct is clearly established. This inquiry must be undertaken in light of the specific context of the case, not as a broad general proposition.” Id. (internal quotation marks and citation omitted, emphasis in original).
BACKGROUND
Plaintiff Shawn Richard Monro is an inmate at the Snake River Correctional Institution (“SRCI, ”), an Oregon state prison located in Ontario, Oregon. First Am. Compl. (“FAC”) ¶ 2. Defendants Lisa Cain and Jeff Moura are employed by the Oregon Department of Corrections (“ODOC”) as Inspectors with Special Investigations Unit, which is a branch of the ODOC Office of the Inspector General. Id. at ¶¶ 3-4. Defendant Joe Capps is also an ODOC employee. Id. at ¶ 5.
Prior to the events giving rise to this case, Plaintiff filed grievances and civil complaints against Cain and other members of SRCI and Inspector General staff. FAC ¶ 9. These complaints and grievances alleged that Cain and other ODOC employees had placed Plaintiff in disciplinary segregation based on false allegations and that they had taken other retaliatory actions against him. Id.
In 2018, Plaintiff was housed in a general population cell at SRCI, which he shared with another inmate. FAC ¶ 8. On June 1, 2018, Cain and Moura searched Plaintiff's cell and discovered a small eyedropper bottle on a shelf with Plaintiff's possessions. Id. Cain and Moura did not recognize the substance inside the bottle. Id. Plaintiff was immediately placed in a disciplinary segregation cell pending an investigation. Id. at ¶ 10.
On June 4, 2018, Cain and Moura performed five “field” drug tests on the substance in the eyedropper bottle. FAC ¶ 11. Three of the tests, NIK, PDT, and XCAT, returned presumptive positive results for heroin. Id. at ¶¶ 12-13. Those three tests are alleged to be unreliable and known for producing false positives, with a high risk of human error in performing the test and interpreting the results. Id. at ¶¶ 19-22, 24. Plaintiff alleges that Cain and Moura performed the field tests with the intention of returning a false positive in order to punish Plaintiff. Id. at ¶ 23.
On August 30, 2018, Cain and two ODOC lieutenants interviewed Plaintiff's former cellmate, who told them that the substance in the bottle was glue he had purchased in the prison yard. FAC ¶ 14. Plaintiff was also interviewed on August 30, 2018 and denied ever possessing heroin. Id. at ¶ 15. On September 2, 2018, Plaintiff reported to Cain that he believed the substance in the bottle was “Gorilla Glue.” Id. at ¶ 16.
On September 7, 2018, Cain signed a misconduct report charging Plaintiff with violation of ODOC Rules 1.10 (Contraband I), 1.15 (Drug Possession), and 4.10 (Distribution). FAC ¶ 17.
On September 11, 2018, Capps presided over a disciplinary hearing on the allegations against Plaintiff. FAC ¶ 18. The only evidence against Plaintiff “was the results of the presumptive drug test and testimony by Defendants Cain and Moura or other staff about the cell search and the field tests.” Id. At the conclusion of the hearing, Capps found Plaintiff in violation of Rule 1.15 (Drug Possession) and Rule 1.10 (Contraband I). Id. at ¶ 25. Plaintiff was ordered to serve 120 days in disciplinary segregation, from June 1, 2018 through September 28, 2018. Id. at ¶ 26. Plaintiff also suffered fourteen days loss of privileges, to be served upon release from segregation; a fine of $100, which was taken from Plaintiff's trust account; and a restriction on visiting for 1, 460 days, including a ban on any contact during visits. Id.
On October 24, 2018, the Oregon State Crime Lab determined that the substance found in the bottle was not a controlled substance. FAC ¶ 30. Cain received the crime lab results on November 31, 2018. Id.
On December 26, 2018, Defendants retroactively changed the charges against Plaintiff to the lesser violation of Contraband II and reduced his punishment to fourteen days in disciplinary segregation, running from June 1, 2018 to June 14, 2018. FAC ¶ 31.
DISCUSSION
Plaintiff brings claims for (1) violation of his due process rights against all Defendants based on the imposition of the $100 fine; and (2) a claim for retaliation in violation of his First Amendment rights against Cain and Moura. The Court previously dismissed a claim for violation of Plaintiff's due process rights based on his placement in disciplinary segregation and Plaintiff does not re-allege that claim in the FAC.
Title 42 U.S.C. § 1983 “provides a federal cause of action against any person who, acting under color of state law, deprives another of his federal rights.” Conn v. Gabbert, 526 U.S. 286, 290 (1999). To maintain a claim under § 1983, “a plaintiff must both (1) allege the deprivation of a right secured by the federal Constitution or statutory law, and (2) allege that the deprivation was committed by a person acting under color of state law.” Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006).
I. Due Process
An inmate must have a liberty interest to be entitled to procedural due process and such an interest “can arise from one of two sources-either the Due Process Clause of the Fourteenth Amendment or state law.” Chappell v. Mandeville, 706 F.3d 1052, 1062 (9th Cir. 2013). With respect to prison conditions, the inquiry is whether the conditions impose an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 483-84 (1995).
“The funds in a prisoner's trust account are a protected liberty interest.” Grimes v. O.D.O.C. Agency, No. 06-CV-619-AS, 2007 WL 1170636, at *3 (D. Or. April 11, 2007) (citing Quick v. Jones, 754 F.2d 1521, 1523 (9th Cir. 1984). “As such, prison authorities must observe due process before they can forfeit funds in an inmate's account.” Id.
In this case, Plaintiff alleges that he was subjected to a $100 fine following the disciplinary hearing held on September 11, 2018. FAC ¶¶ 18, 26c. On December 26, 2018, the most serious charges against Plaintiff were dropped and his punishment were reduced to fourteen days in disciplinary segregation. Id. at ¶ 31. In other words, Plaintiffs fine was lifted on December 26, 2018 and he was only deprived of the $100 for 107 days.
Under similar circumstances, the Tenth Circuit rejected a claim for due process violations when a fine of $20 was imposed and then refunded after a subsequent hearing:
Insofar as the $20 disciplinary fee that was later returned and the interest that might have been earned, we hold that a temporary deprivation (while the prison administrative process provides due process) does not constitute an atypical or significant hardship under Sandin. Any lost interest on the $20.00 de is de minimis.Moncla v. Kelley, 430 Fed.Appx. 714, 717-18 (10th Cir. 2011) (internal citations omitted).
Here, Plaintiff was temporarily deprived of $100 for just over three months. As in Moncla, the Court concludes that the deprivation was not an atypical or significant hardship under Sandin and any lost interest is de minimis. Consistent with Moncla, the Court concludes that Plaintiff has failed to allege the deprivation of a protected interest to sustain a claim under the Due Process Clause.
The Supreme Court has held that “some form of notice and hearing-formal or informal-is required before deprivation of a property interest that cannot be characterized as de minimis.” Fuentes v. Shevin, 407 U.S. 67, 90 n 21 (1972).
Plaintiff contends that Moncla is inapposite because a prisoner's due process rights can be violated in a prison disciplinary proceeding, even if the plaintiff has not demonstrated a cognizable liberty interest, citing Burnsworth v. Henderson, 179 F.3d 771, 775 (9th Cir. 1999). Burnsworth, however, involved a situation in which a prison disciplinary board convicted an inmate of escape after a hearing “at which no shed of evidence of the inmate's guilt [was] presented.” Id. at 774. Burnsworth reaffirmed “the fundamental principle of due process in prison disciplinary proceedings, ” that “the findings of the prison disciplinary board be supported by some evidence in the record.” Id. at 775 (internal quotation marks and citation omitted, alterations normalized).
In this case, the FAC alleges that during the disciplinary hearing Capps was presented with “the results of the presumptive drug test and testimony by Defendants Cain and Moura and other staff about the cell search and the field tests.” FAC ¶ 18. In other words, the decision was based on “some evidence, ” notwithstanding Plaintiffs allegations concerning the reliability of the evidence presented at the hearing. See, e.g. McCarvill v. Nooth, No. 3:11-cv-00464-HZ, 2012 WL 1617404, at *4 (D. Or. May 8, 2012) (“Although Petitioner challenges that sufficiency and credibility of the evidence, the question for the Court is whether there is any evidence in the record that could support the disciplinary hearing's officer's conclusion that he violated the Extortion I rule.”).
In sum, the Court concludes that Plaintiff has failed to state a claim for violation of his due process rights based on the temporary deprivation of $100 and the de minimis loss of any interest that would have accrued on that money during the time Plaintiff was deprived of it. Although Plaintiff requests leave to amend his complaint for a second time, he does not identify what, if any, additional facts might salvage his claim for violation of his due process rights. The Court concludes that it would be futile to allow further amendment and so this claim should be dismissed without further leave to amend.
Because Plaintiff has failed to allege a violation of his due process rights, it is not necessary to reach the question of qualified immunity as to Plaintiffs due process claim. Nor is it necessary for the Court to consider whether Moura individually took any action that deprived Plaintiff of a protected due process right.
II. Retaliation
Plaintiffs second claim alleges that Cain and Moura's search of his cell and the subsequent disciplinary charges were intended to retaliate against Plaintiff for filing grievances and civil complaints against Cain and other ODOC employees. “The First Amendment guarantees a prisoner a right to seek redress of grievances from prison authorities as well as a right of meaningful access to the courts.” Jones v. Williams, 791 F.3d 1023, 1035 (9th Cir. 2015) (citations omitted). “Retaliation against prisoners for their exercise of this right is itself a constitutional violation, and prohibited as a matter of clearly established law.” Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) (internal quotation marks and citation omitted). However, “[c]ase law dictates that such claims must be examined with skepticism and particular care, ” as “[r]etaliation claims by prisoners are prone to abuse since prisoners can claim retaliation for every decision they dislike.” Grenning v. Klemme, 34 F.Supp.3d 1144, 1154 (E.D. Wash. 2014) (internal quotation marks and citations omitted). A viable claim for First Amendment retaliation includes:
(1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted).
In this case, Defendants only challenge Plaintiff's showing on the fifth element-whether Cain and Moura's actions advanced a legitimate correctional goal. “A plaintiff successfully pleads this element by alleging, in addition to a retaliatory motive, that the defendant's actions were arbitrary and capricious, or that they were unnecessary to the maintenance of order in the institution.” Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012) (internal quotation marks and citation omitted).
In this case, Defendants argue that there was a legitimate penological interest for the search of Plaintiff's cell and the subsequent field testing and disciplinary hearing. However, Plaintiff alleges that Cain and Moura performed the field tests on the substance in the bottle “with the intention of returning a false positive” to punish Plaintiff and that their actions were “arbitrary and capricious and were unnecessary to the maintenance of order at SRCI.” FAC ¶¶ 23, 47.
In Watison, the Ninth Circuit held that an allegation that prison staff had made false disciplinary conduct reports and false statements to the parole board in retaliation for prior grievances was sufficient to state a claim for retaliation at the pleading stage. Watison, 668 F.3d at 1115. Applied to the present case, the Court must conclude that Plaintiff has likewise pleaded the absence of a legitimate penological interest in Defendants' alleged procurement of false positives in the field drug tests. Whether that allegation, or the facts underlying the allegation, will be borne out by subsequent discovery and litigation remains to be seen.
With respect to qualified immunity, the Ninth Circuit has repeatedly stressed the “firm recognition that ‘the prohibition against retaliatory punishment is ‘clearly established law' in the Ninth Circuit, for qualified immunity purposes.'” Rhodes, 408 F.3d at 569 (quoting Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995)). As discussed above, Plaintiffs claim that Cain and Moura engineered the field tests to return a false positive is essentially analogous to the allegation of the filing of a false disciplinary report discussed in Watison, 668 F.3d at 1115. As the Court has concluded that Plaintiff adequately pleaded a claim for First Amendment retaliation, the Court must also deny qualified immunity at this stage of the case. This denial is without prejudice to Defendants' ability to raise qualified immunity in a later motion.
CONCLUSION
Defendants' Motion to Dismiss, ECF No. 22, should be GRANTED in part and DENIED in part. Plaintiff s claim for violation of his due process rights should be dismissed without further leave to amend. Plaintiffs claim for retaliation in violation of his First Amendment rights against Defendants Cain and Moura should not be dismissed, nor should Defendants be granted qualified immunity as to that claim at this stage of litigation.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, then the Findings and Recommendation will go under advisement on that date. A party's failure to timely file objections to any of these findings will be considered a waiver of that party's right to de novo consideration of the factual issues addressed herein and will constitute a waiver of the party's right to review of the findings of fact in any order or judgment entered by a district judge. These Findings and Recommendation are not immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of judgment.
It is so ORDERED.