Brandon v. Dep't of Corr. of Wash.

1

MYRON G. BRANDON, Plaintiff, v. DEPARTMENT OF CORRECTIONS OF WASHINGTON et al., Defendants.

No. 3:22-cv-05284-LK

United States District Court, W.D. Washington, Tacoma

September 18, 2023

ORDER ADOPTING REPORT AND RECOMMENDATION IN PART

LAUREN KING, UNITED STATES DISTRICT JUDGE

This matter comes before the Court on the Report and Recommendation (“R&R”) of United States Magistrate Judge David W. Christel, recommending that Defendants' Motion to Dismiss Under Federal Rule of Civil Procedure 12(c) be granted, and that pro se Plaintiff Myron G. Brandon's civil rights complaint be dismissed with prejudice. Dkt. No. 44 at 1; see Dkt. No. 20 (motion to dismiss). Mr. Brandon timely objected to the R&R, and Defendants filed a response to his objections. Dkt. Nos 45-46.^[1] The Court adopts the R&R in part as set forth below.

I. BACKGROUND

Mr Brandon is currently incarcerated at Stafford Creek Corrections Center. Dkt. No. 45 at 7. On February 23, 2022, while incarcerated in the Special Offenders Unit at the Monroe Correctional Complex, Mr. Brandon filed suit against the Washington State Department of Corrections (“DOC”), Stephen Sinclair, John L. Campbell, and Larry M. Conner. Dkt. No. 6 at 15-17, 30-32.^[2] Mr. Brandon alleges that in November 2018, Sinclair and Campbell “approved [his] transfer to Washington State Penitentiary [(‘WSP')] West Complex G-Unit having closed custody,” despite a recommendation from a different prison official that he remain in medium custody and be transferred “to any other prison and not to WSP because of staff rec[]om[m]endation and []complaints about medical staff at WSP.” Id. at 31. Mr. Brandon avers that following his transfer, he was assaulted by other inmates on three occasions, including on January 21, 2019 and February 8, 2019. Id. at 31-32. As a result, Mr. Brandon claims that Defendants “violated Due Process of the Fourteenth Amendment . . . and discriminated against [him] by refusing to send [him] to another prison other than WSP in November of 2018,” and that they also “violated D.O.C. policy 300.380.” Id. at 32.

Defendants became aware of Mr. Brandon's lawsuit on March 29, 2022, and removed the case to federal district court on April 28, 2022. Dkt. No. 1 at 1-2. After Mr. Brandon unsuccessfully sought to remand the case, Defendants moved to dismiss Mr. Brandon's complaint with prejudice pursuant to Federal Rule of Civil Procedure 12(c). See Dkt. Nos. 9, 14, 20. Specifically, Defendants argue that Mr. Brandon “fails to state a claim because (1) inmates have no due process right to choose the prison [in] which they are housed; and (2) a DOC policy violation is not a cause of action.” Dkt. No. 20 at 3. They also argue that his claims are time-barred under 42 U.S.C. § 1983, and that granting leave to amend would be futile. Id. at 5-6. In his response to Defendants' motion, Mr. Brandon contends that he is in fact bringing an Eighth Amendment claim based on Defendants' failure to heed the recommendation that he maintain medium custody and be placed at a facility other than “WSP closed custody West Complex.” Dkt. No. 37 at 1-2; see also id. at 5. According to Mr. Brandon, WSP was not a suitable transfer location due to prior retaliation from staff, security problems between himself and other inmates there, and poor medical treatment at the facility. Id. at 2. In addition, Mr. Brandon argues that equitable tolling applies to his claims in light of COVID-19 restrictions. Id. at 2-3, 5.

On January 5, 2023, Judge Christel issued an R&R concluding that Mr. Brandon failed to state a claim for relief for the reasons outlined in Defendants' motion, and recommending that Defendants' motion be granted and this action be dismissed with prejudice. Dkt. No. 44 at 1, 5-8. Mr. Brandon timely objected. Dkt. No. 45. Notably, Mr. Brandon does not specifically object to the R&R's findings regarding Defendants' alleged due process and DOC policy violations, but instead insists his claims arise under the Eighth Amendment. Id. at 2-4, 6; see id. at 4 (alleging that Campbell and Sinclair “failed to provide safety and health as provided by the Eighth Amendment[.]”). Further, he objects to the R&R's “minimiz[ing]” the purported assaults he experienced at the hands of other inmates “as mere fights.” Id. at 4 (claiming he was assaulted on “[three] separate occasion[s] resulting in shoulder dislocation[,] neck and head injur[ies,] and a tooth knocked out of [his] mouth”). Mr. Brandon also mentions previously dismissed Eighth Amendment deliberate indifference claims related to a heart attack he suffered while at WSP. Id. at 4-5; see Brandon v. Dep't of Corr., No. 3:21-CV-5417-JCC-DWC, 2021 WL 5967951, at *1 (W.D. Wash. Oct. 29, 2021), report and recommendation adopted, 2021 WL 5937685 (W.D. Wash. Dec. 16, 2021). As for the timeliness of this lawsuit, Mr. Brandon maintains he has been “diligent in pursuing his claims” and that equitable tolling applies. Dkt. No. 45 at 5. He also attaches an offender complaint referred to Defendant Campbell on November 1, 2018, stating that Mr. Brandon had “multiple complaints that he would like addressed, including staff retaliation . . ., his custody demotion, and complaints about medical staff at WSP.” Id. at 8.^[3]

In their response to Mr. Brandon's objections, Defendants argue that the R&R should be adopted because Mr. Brandon failed to “meaningfully dispute” its findings, and that to the extent Mr. Brandon now seeks to assert an Eighth Amendment claim, such claim should be dismissed as a matter of law. See generally Dkt. No. 46. And as previously mentioned, see supra note 1, Mr. Brandon filed a reply to Defendants' response “clarify[ing] his Eighth Amendment claim and equitable tolling” argument. Dkt. No. 47 at 4.

II. DISCUSSION

A. Legal Standards

1. Reviewing the R&R

The Court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made,” and “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); see also Fed.R.Civ.P. 72(b)(3) (the Court “must determine de novo any part of the magistrate judge's disposition that has been properly objected to.”).

2. Motions For Judgment on the Pleadings

“Under Federal Rule of Civil Procedure 12(c), judgment on the pleadings is proper ‘when, taking all the allegations in the non-moving party's pleadings as true, the moving party is entitled to judgment as a matter of law.'” Ventress v. Japan Airlines, 486 F.3d 1111, 1114 (9th Cir. 2007) (quoting Fajardo v. County of Los Angeles, 179 F.3d 698, 699 (9th Cir. 1999)). Because Rule 12(c) motions are “functionally identical” to Rule 12(b)(6) motions, courts apply the same standard as motions to dismiss for failure to state a claim upon which relief could be granted. Gregg v. Hawaii Dep't of Pub. Safety, 870 F.3d 883, 887 (9th Cir. 2017); accord Dworkin v. Hustler Mag., Inc., 867 F.2d 1188, 1192 (9th Cir. 1989). And, though Rule 12(c) makes no mention of leave to amend, courts have discretion to grant leave to amend as part of such motions. See, e.g., Tolbert v. Antioch Police Dep't, No. 22-CV-02026-JSC, 2023 WL 2959989, at *2 (N.D. Cal. Apr. 14, 2023) (citing Carmen v. S. F. Unified Sch. Dist., 982 F.Supp. 1396, 1401 (N.D. Cal. 1997)).

B. Mr. Brandon's Amended Complaint Fails to State a Claim

The Court adopts the R&R's recommendation that Defendants' motion for judgment on the pleadings be granted as to Mr. Brandon's Fourteenth Amendment Due Process and DOC Policy claims. Dkt. No. 44 at 5-7. Judge Christel found that Mr. Brandon's Fourteenth Amendment claim should be dismissed because prisoners do not have a due process right to incarceration at a particular prison or a particular classification status. Id. at 5 (citing Meachum v. Fano, 427 U.S. 215, 224-25 (1976) and Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976)).^[4] And with respect to Mr. Brandon's standalone DOC policy violation claim, the R&R reasoned that “state policies and regulations are ‘not designed to confer rights on inmates,' but are instead ‘primarily designed to guide correctional officials in the administration of a prison.'” Id. at 6 (quoting Sandin v. Conner, 515 U.S. 472, 481-82 (1995)). Mr. Brandon did not object to these portions of the R&R. See generally Dkt. Nos. 45, 47. The Court therefore adopts Judge Christel's recommendations and dismisses these claims. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (the district court must review the magistrate judge's findings and recommendations only if objection is made).

C. Mr. Brandon May Not Amend His Complaint In Responsive Briefing or Objections

For the first time in his November 4, 2022 response to Defendants' Motion to Dismiss, Mr. Brandon asserts that his claim is an “8^th Amendment cruel and unusual punishment claim[.]” Dkt. No. 37 at 1-2. However, he “may not amend h[is] pleading via h[is] response brief,” Riser v. Cent. Portfolio Control Inc., No. 3:21-CV-05238-LK, 2022 WL 2209648, at *4 n.1 (W.D. Wash. June 21, 2022), nor may he amend his complaint via his objections, Perez, 2023 WL 2758341, at *8; see also Tejada v. Delbaso, No. 3:18-CV-1096, 2022 WL 1275777, at *2 (M.D. Pa. Apr. 28, 2022) (a plaintiff cannot “raise a new legal theory for the first time in objections to a report and recommendation or otherwise amend a complaint in his objections.”). His Eighth Amendment claim is therefore not properly before the Court.

D. Statute of Limitations

As for the relevant statute of limitations, the R&R concluded that “[b]ecause [Mr. Brandon]'s claims stem from events occurring in November 2018 and he did not file his lawsuit on those claims until February 23,...