Opinion
NOT TO BE PUBLISHED
Superior Court County Super. Ct. No. CV 060192, Barry T. LaBarbera, Judge of San Luis Obispo.
Steven Jerrold Pace, in pro per, Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Rene L. Lucaric, Supervising Deputy Attorney General, Adam L. Marcotte and Julie A. Bachman, Deputy Attorneys General, for Plaintiff and Respondent.
YEGAN, J.
Steven Jerrold Pace, an inmate at California's Men's Colony, sued four correctional officers for damages after receiving disciplinary citations for gambling and unauthorized possession of medication. He appeals from separate orders sustaining, without leave to amend, the demurrers of respondents, Correctional Officer Brian Kirker, Correctional Captain D. Morse, Correctional Lieutenant G. Barter, and Correctional Lieutenant K. Smith, to the first and second amended complaints. We modify the orders to state that the action was dismissed with prejudice and affirm the judgment as modified.
An order sustaining a demurrer without leave to amend is not appeal able until a judgment of dismissal is entered. (Code Civ. Proc., §§ 904.1; 581d.) In the interest of justice and to prevent further delay, we deem the orders to incorporate a judgment of dismissal. (Thaler v. Household Finance Corp. (2000) 80 Cal.App.4th 1093, 1098.)
Facts and Procedural History
This action arises out of an August 20, 2004 incident in which appellant asked Correctional Officer Brian Kirker to staple a written grievance form (a 602 form) concerning Corrections Sergeant William Pemberton. Kirker allegedly said, "I'm not stapling this for you. Billy Pemberton is a close, personal friend of mine. Don't you know us officers stick together just like you inmates do? Further more [sic] Pace, there is no way you can win this and if you do turn in this 602 you'll just be creating problems for yourself. I guarantee it."
Gambling Citation
On October 10, 2004, Kirker searched appellant's cell and found a gambling sheet listing professional football teams and inmate names. Appellant admitted operating a gambling pool.
Kirker searched appellant's cell two days later and found a document which indicated that inmates owed appellant $65,391.98 plus interest.
On October 12, 2004, appellant was transferred to an Administrative Segregation Unit pending an investigation. Correctional Captain D. Morse allegedly told appellant that the transfer was not for gambling but for suspected inmate money-lending operations.
After Kirker issued a citation for operating an inmate gambling pool, appellant appeared before a review committee. The committee, of which Captain Morse was a member, found appellant guilty and reduced appellant's accrued good time credits.
Medication Citation
On November 3, 2004, Kirker issued appellant a second citation for possessing medication not prescribed or issued to him by the prison pharmacy. Appellant appeared before a review board and was found in violation of the medication rule. The hearing officer, Correctional Lieutenant G. Barter, sanctioned appellant with the loss of 30 days good time credit. On review, an appeals board reinstated the good time credit because Kirker failed to issue the citation within 15 days of discovering the violation.
Complaint for Damages
Appellant sued Kirker for damages on March 9, 2006, alleging violation of his federal and state rights. On July, 5, 2006, the trial court sustained a demurrer with leave to amend.
The trial court also sustained the demurrers of Prison Warden J. Marshall and California Department of Corrections Director J. Wood ford Appellant failed to name Marshall and Wood ford in the first amended complaint, which operated as a dismissal of those defendants. (Lamoreux v. San Diego etc. Ry. Co. (1957) 48 Cal.2d 617, 627-628; Boonyarit v. Payless Shoesource, Inc. (2006) 145 Cal.App.4th 1188, 1193.)
Appellant filed a first amended complaint based on the same underlying facts. Appellant also alleged that Kirker and a second officer interfered with the prison mail system to prevent appellant from filing a timely lawsuit.
Correctional Lieutenant Smith allegedly found a note from the superior court clerk addressed to appellant and gave it to appellant. The first amended complaint appellant alleges that Smith and Kirker conspired to thwart appellant's access to the court.
Kirker demurred again. Before the trial court ruled on the demurrer, appellant filed, without leave of court, a second amended complaint naming Morse, Barter, and Smith as defendants.
On October 17, 2006, the trial court sustained Kirker's demurrer without leave to amend.
Morse, Barter, and Smith filed demurrers to the second amended complaint. The trial court, sustained the demurrers without leave to amend on the same grounds as Kirker's demurrer: the action was barred by the Tort Claims Act (Gov. Code, § 910 et seq.) and the discretionary immunity provisions of sections 820.2 and 821.6, the federal causes of action were barred by a qualified immunity (Saucier v. Katz (2001) 533 U.S. 194, 200 [150 L.Ed. 2d 272, 281), and appellant suffered no cognizable harm or deprivation of a constitutionally protected liberty interest.
All statutory references are to the Government Code unless otherwise stated.
Discussion
We review de novo the order sustaining the demurrers, treating the demurrers as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Where the demurrers are "sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.]" (Ibid.)
First Cause of Action - Retaliation
The first amended complaint alleges that Kirker retaliated against appellant after the stapling incident, resulting in appellant's placement in an Administrative Segregated Unit and the violation of appellant's civil rights. (42 U.S.C. § 1983.) To state a claim, appellant must allege that Kirker took adverse retaliatory action because of appellant's protected speech activity, that the action chilled the exercise of appellant's First Amendment rights, and the action did not reasonably advance a legitimate penological interest. (Rhodes v. Robinson (9th Cir. 2005) 408 F.3d 559, 567-568.)
A corrections officer has qualified immunity where his or her conduct does not violate clearly established statutory or constitutional right. (Harlow v. Fitzgerald (1982) 457 U.S. 800, 815-818 [73 L.Ed. 2d 396, 408-410.]; Somers v. Thurman (9th. Cir. 1997) 109 F.3d 614, 617.) Prison officials enjoy broad discretion in maintaining the security of a prison facility and prohibiting gambling. (See e.g., Bahrampour v. Lampert (9th Cir. 2004) 356 F.3d 969, 973 [regulations against gambling support legitimate penological interests]; Johnson v. State of California (9th Cir. 2003) 321 F.3d 791, 800-801.) As a prisoner, appellant enjoys certain fundamental rights but not the right to gamble. (Pen. Code, § 2601, subd. (c)(1)(c); see Cal. Code Regs. tit. 15, § 3006(b)(13) [prohibiting gambling contraband]; 3009 ["inmates may not participate in any form of gambling or bookmaking"].)
Here the decision to transfer appellant to segregated housing pending investigation of suspected gambling activity furthered a legitimate penological interest. "The safety of the institution's guards and inmates is perhaps the most fundamental responsibility of the prison administration. [Citations.] Likewise, the isolation of a prisoner pending investigation of misconduct charges against him serves important institutional interests relating to the insulating of possible witnesses from coercion or harm [citation]." (Hewitt v. Helms (1983) 459 U.S. 460, 473 [74 L.Ed.2d 675, 689].)
Appellant admitted running an illegal gambling pool. No facts are alleged that the decision to issue the citation or place appellant in segregated housing was arbitrary, capricious, or failed to advance a legitimate penological interest. (See e.g., In re Wilson (1988) 202 Cal.App.3d 661, 667.) Appellant's gambling activities and the discovery of what appeared to be gambling collateral and a money lending sheet created a reasonable prison safety concern.
The Administrative Segregated Unit Placement Notice states that mini canteen script totaling $265,000, 11 pairs of tennis and shower shoes, and a large quantity of canteen items were found in appellant's cell. It further stated: "During your interview, you openly admitting to running gambling pools and loaning money with collateral. You stated you would pay off your gambling debts in order to avoid pressure problems. On today's date, during a search of your assigned cell, you provided a list of inmates owed money totaling $248.00. Also discovered during the search of your cell was a list of names which owe you money totaling in excess of $65,000.00. Noted on this list is an interest rate of 10% charged to each inmate."
Appellant claims that the $65,000 gambling sheet was a legal document relating to another lawsuit. That was not discovered until later. "[T]he relevant inquiry is not whether, in hindsight, [the officer] acted unreasonably, but instead whether his decision was reasonable in light of the information that he possessed at the time of the implementation. [Citations.]" (Rudebusch v. Hughes (9th Cir. 2002) 313 F.3d 506, 519.)
The trial court properly concluded that no cause of action was stated. Based on appellant's construction of the law, an officer's "qualified immunity turn[s] on the harm eventually caused by an official's conduct. But that puts the cart before the horse. It shifts the focus of the qualified immunity from the time of the conduct to its aftermath and effect, and therefore would make immunity hinge upon precisely the kind of post hoc judgment that the doctrine is designed to avoid. [Citation.]" (Rhodes v. Robinson, supra, 408 F.3d at p. 570.)
Second Cause of Action –Due Process Violation & Fraud
The first amended complaint states that Kirker falsely reported that the $65,000 schedule was related to gambling activities. No facts, however, are alleged that Kirker violated a constitutionally protected liberty interest or that and that the administrative review procedure was constitutionally deficient. (Board of Regents v. Roth (1972) 408 U.S. 564, 570-571 [33 L.Ed.2d 548, 556-557].)
Appellant contends that placement in segregated housing pending an investigation and administrative hearing violated his due process rights. We reject the argument because administrative segregation in and of itself does not implicate a protected liberty interest. (Sandin v. Conner (1995) 515 U.S. 472, 486 [132 L.Ed.2d 418, 431].) No facts are alleged that the change in appellant's confinement imposed an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." (Id., at p. 484 [132 L.Ed.2d at p. 430]; Resnick v. Hayes (9th Cir. 2000) 213 F.3d 443, 448.) The alleged filing of a false disciplinary charge does not constitute a cognizable claim under the Civil Rights Act where the inmate is afforded the opportunity to rebut the charges against him. (Freeman v. Rideout (2d Cir. 1986) 808 F.2d 949, 953; Hanrahan v. Labne (7th Cir. 1984) 747 F.2d 1137, 1140 [where prisoner provided a procedural avenue to rebut false charges, prisoner has not suffered a constitutional violation].)
Appellant argues that second cause of action states a claim for fraud under state law. Kirker, however is immune from liability based on the discretionary immunity provisions of section 821.6 which provides: "A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause."
Third Cause of Action –Due Process, Fraud & Deceit
The third cause of action alleges that Kirker breached a duty of care by not truthfully answering questions propounded in discovery before the administrative hearing. Like the other causes of action, no facts are alleged that appellant was deprived of a constitutionally protected liberty interest or suffered a cognizable harm.
Fourth Cause of Action –Due Process, Fraud & Misrepresentation
The fourth cause of action states that Kirker made false statements in issuing the medication citation. Although appellant lost 30 days good time credit, the credits were reinstated. The harm if any, was cured by the administrative review procedure. (Wycoff v. Nichols (8th Cir. 1996) 94 F.3d 1187, 1189.) "Since [appellant] was granted a hearing, and was afforded the opportunity to rebut the charges against him, the defendant's filing of unfounded charges did not give rise to a per se constitutional violation actionable under [42 U.S.C.] section 1983." (Freeman v. Rideout, supra, 808 F.2d at p. 953.)
Fifth Cause of Action –Intentional Infliction of Emotional Distress
The fifth cause of action for intentional infliction emotional distress fails to allege that Kirker engaged in extreme and outrageous conduct, causing appellant to suffer severe emotional distress. (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.) The allegation that Kirker refused to staple the grievance form and warned appellant that he was "creating problems" states no cause of action. The trial court did not err in finding that the action was barred by the discretionary immunity provisions of sections 820.2 and 821.6.
Sixth Cause of Action – Denial of Court Access
The sixth cause of action states that Kirker impeded the filing of appellant's complaint by destroying the complaint and filing fee checks. The trial court found no cognizable harm. Because appellant filed the lawsuit in a timely fashion, any delays caused by Kirker's alleged actions did not prejudice appellant.
Appellant alleges that Smith and Kirker conspired to interfere with appellant's legal mail. The trial court correctly found that the action was barred by the California Tort Claims Act. (§ 910 et seq) and the discretionary immunity statutes (§§ 820.2, and 821.6.) Conclusory allegations about a hypothetical retaliation do not suffice. Appellant must "allege specific facts showing retaliation because of the exercise of the prisoner's constitutional rights." (Frazier v. Dubois (10th Cir. 1990) 922 F.2d 560, 562, fn. 1.)
Seventh Cause of Action - Abuse of Process/Malicious Prosecution
The seventh cause of action alleges that Kirker committed abuse of process and violated appellant's rights by issuing the citations. The action is barred by Kirker's qualified immunity (Harlow v. Fitzgerald, supra, 457 U.S. at p. 818 [73 L.Ed.2d at p. 410]) and section 821.6 which immunizes a public employee who investigates, institutes or prosecutes a disciplinary proceeding. (Gillan v. City of San Mateo (2007) 147 Cal.App.4th 1033, 1048.) "California courts construe section 821.6 broadly in furtherance of its purpose to protect public employees in the performance of their prosecutorial duties from the threat of harassment through civil suits." (Ibid.)
Appellant's remaining arguments have been considered and merit no further discussion. The same pleading defects bar appellants' action against respondents Smith, Barter, and Morse. Appellant has failed to demonstrate the trial court abused its discretion in denying leave to amend. (Hendy v. Losse (1991) 54 Cal.3d 723, 742.).
Appellant filed, without leave of court, a third amended complaint before the hearing on the demurrer. We reject the argument that the amended complaint mooted the demurrer or that respondents were required to file a new demurrer. Appellant also complains that he was unable to make the necessary arrangements to appear telephonically at the hearing on the demurrer. Appellant suffered no prejudice. The record indicates that respondents' counsel appeared by telephone and submitted on the papers filed.
We modify the orders sustaining the demurrers to reflect that a judgment of dismissal was entered and affirm the judgment as modified. Respondents are awarded costs on appeal.
We concur: GILBERT, P.J., PERREN, J.