Bowell v. Montoya, 1:17-cv-00605-NONE-GSA-PC

JAMES BOWELL, Plaintiff, v. F. MONTOYA, et al., Defendants.

1:17-cv-00605-NONE-GSA-PC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

May 10, 2021

FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BE GRANTED ON THE BASIS OF CLAIM PRECLUSION

(ECF No. 90.)

OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN (14) DAYS

I. BACKGROUND

James Bowell ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff's First Amended Complaint, filed on May 3, 2018, against defendants Correctional Counselors F. Montoya and D. Carter for violation of due process under the Fourteenth Amendment, and against defendants Correctional Officers R. Killmer and S. Lopez for conspiracy to place Plaintiff at risk of serious harm and failure to protect Plaintiff under the Eighth Amendment. (ECF No. 16.)¹

On January 25, 2021, defendants Killmer, Montoya, Lopez, and Carter ("Defendants") filed a motion for summary judgment. (ECF No. 90.) On February 3, 2021, Plaintiff filed an opposition to the motion. (ECF No. 92.) On February 9, 2021, Defendants filed a reply to Plaintiff's opposition. (ECF No. 93.) Defendants' motion for summary judgment is deemed submitted. Local Rule 230(l).

II. PLAINTIFF'S ALLEGATIONS

Plaintiff's factual allegations in the operative First Amended Complaint follow²:

Plaintiff has been incarcerated since July 31, 1991. In Plaintiff's CDCR-SOMS Classification Chrono dated November 19, 2015, defendants Montoya and Carter incorporated fraudulent charges from Plaintiff's police criminal rap sheet, reflecting Plaintiff's arrest on April 4, 1987, for Willful Child Cruelty. Plaintiff was labeled a sex offender or child molester with an institutional "R" suffix placed onto the Chrono. Plaintiff alleges that the fraudulent information had nothing to do with his prison commitment offense, "one count of /failure to register/ PC 290 25 years to life sentence based upon PC 220 assault." ECF No. 16 at 3 ¶IV. Defendants Lopez and Killmer, intent on exercising their power and view created by defendant Montoya and defined via defendant Carter, interpreted an element having nothing to do with Plaintiff's primary offense. C/O Killmer told inmates that Plaintiff was incarcerated for rape after reviewing the prison computer system institutional SOMS Chrono that showed an arrest for rape with no disposition listed.

C/O Lopez gave inmate Sean Shupp the November 19, 2015, Chrono reflecting Plaintiff's life sentence, sex offender label with no visits with minors, and "R" suffix. Plaintiff believes that defendants Killmer and Lopez intended to have Plaintiff murdered. On December 14, 2015, Plaintiff was assaulted by two inmates, Solman and Barger, on the CCI Facility A-yard. Plaintiff was attacked from behind and hit the ground knocked out cold. Plaintiff suffered a head injury,loss of hearing in his right ear, knee injury, and injury to his right eye causing him to see spots and lines. Plaintiff alleges that he was attacked because of the November 19, 2015 Chrono and rape allegation that was ultimately dismissed in the interest of justice.

Later, Sgt. Doser and Lt. Hart set Plaintiff up to be assaulted again by placing inmates Solman and Barger back onto the same yard facility. The inmates should have been placed in administrative segregation and charged with battery on a prisoner. Sgt. Doser attempted to diffuse the original paperwork which described a crime of violence. The sole purpose of Defendants' actions was to harm Plaintiff. Sgt. Doser and Lt. Hart made a false entry on the record with the intent to murder Plaintiff, so they could silence his litigation.

Plaintiff seeks monetary damages.

III. PLAINTIFF'S CLAIMS -- LEGAL STANDARDS

On October 25, 2018, the court found that Plaintiff states cognizable claims in the First Amended Complaint against defendants Montoya and Carter for violation of due process under the Fourteenth Amendment, and against defendants Killmer and Lopez for conspiracy to place Plaintiff at risk of serious harm and failure to protect Plaintiff under the Eighth Amendment. (ECF No. 20.)

1. Due Process - Fourteenth Amendment Claim

The Due Process Clause protects prisoners from being deprived of liberty without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a cause of action for deprivation of procedural due process, a plaintiff must first establish the existence of a liberty interest for which the protection is sought. Liberty interests may arise from the Due Process Clause itself or from state law. Hewitt v. Helms, 459 U.S. 460, 466-68 (1983).

The Due Process Clause itself does not confer on inmates a liberty interest in a particular classification status. See Moody v. Daggett, 429 U.S. 78, 88, n.9 (1976). The existence of a liberty interest created by state law is determined by focusing on the nature of the deprivation. Sandin v. Conner, 515 U.S. 472, 481-84 (1995). Liberty interests created by state law are generally limited to freedom from restraint which "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 484. The assignment of an "R" suffix and the resulting increase in custody status and loss of privileges, without more, simply do not "impose[] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id.; Neal v. Shimoda, 131 F.3d 818, 830 (9th Cir. 1997); Cooper v. Garcia, 55 F.Supp.2d 1090, 1101 (S.D. Cal. 1999); Johnson v. Gomez, No. C95-20717 RMW, 1996 WL 107275, at *2-5 (N.D. Cal. 1996); Brooks v. McGrath, No. C 95- 3390 SI, 1995 WL 733675, at *1-2 (N.D. Cal. 1995). However, under certain circumstances, labeling a prisoner with a particular classification may implicate a liberty interest subject to the protections of due process. Neal, 131 F.3d at 827 ("[T]he stigmatizing consequences of the attachment of the 'sex offender' label coupled with the subjection of the targeted inmate to a mandatory treatment program whose successful completion is a precondition for parole eligibility create the kind of deprivations of liberty that require procedural protections.")

To state a potentially colorable due process claim based on the allegedly improper classification as a sex offender, plaintiff must allege that the classification error caused him to be subjected to "atypical and significant hardship . . . in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 484.

If a prisoner has a liberty interest in avoiding a sex offender label, he is constitutionally entitled to all of the process due under the standards set forth in Wolff, 418 U.S. at 539 (1974). See Sandin, 515 U.S. at 482 ("The time has come to return to the due process principles we believe were correctly established and applied in Wolff and Meachum³"). See also Keenan v. Hall, 83 F.3d 1083 (9th Cir. 1996) (embracing this proposition in the context of a prisoner's suit to participate in a hearing to determine his re-classification). "Due process requires that the inmate be notified of the reasons for his classification as a sex offender without the inmate's having to request that information." Neal, 131 F.3d at 832. "An inmate whom the prison intends to classify as a sex offender is also entitled to a hearing at which he must be allowed to call witnesses and present documentary evidence in his defense." Id. at 831.

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2. Failure to Protect - Eighth Amendment Claim

The Eighth Amendment protects prisoners from inhumane methods of punishment and from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Although prison conditions may be restrictive and harsh, prison officials must provide prisoners with food, clothing, shelter, sanitation, medical care, and personal safety. Farmer v. Brennan, 511 U.S. 825, 832-33 (1994) (internal citations and quotations omitted). Prison officials have a duty to take reasonable steps to protect inmates from physical abuse. Id. at 833; Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). The failure of prison officials to protect inmates from attacks by other inmates may rise to the level of an Eighth Amendment violation where prison officials know of and disregard a substantial risk of serious harm to the plaintiff. Id.; e.g., Farmer, 511 U.S. at 847. To establish a violation of this duty, the prisoner must establish that prison officials were "deliberately indifferent to a serious threat to the inmate's safety." Farmer, 511 U.S. at 834. The question under the Eighth Amendment is whether prison officials, acting with deliberate indifference, exposed a prisoner to a sufficiently "substantial risk of serious harm" to his or her future health. Id. at 843 (citing Helling v. McKinney, 509 U.S. 25, 35 (1993)). The Supreme Court has explained that "deliberate indifference entails something more than mere negligence . . . [but] something less than acts or omissions for the very purpose of causing harm or with the knowledge that harm will result." Farmer, 511 U.S. at 835. The Court defined this "deliberate indifference" standard as equal to "recklessness," in which "a person disregards a risk of harm of which he is aware." Id. at 836-37. The deliberate indifference standard involves both an objective and a subjective prong. First, the alleged deprivation must be, in objective terms, "sufficiently serious." Id. at 834. Second, subjectively, the prison official must "know of and disregard an excessive risk to inmate health or safety." Id. at 837; Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th Cir. 1995). To prove knowledge of the risk, however, the prisoner may rely on circumstantial evidence; in fact, the very obviousness of the risk may be sufficient to establish knowledge. Farmer, 511 U.S. at 842; Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995).

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3. Conspiracy to Place ...