Barela v. Variz, 98-1186-JFS.

• Decision Date: 19 February 1999
• Docket Number: No. 98-1186-JFS.,98-1186-JFS.
• Parties: Carlos BARELA (Chavaris), Plaintiff, v. D. VARIZ; M. Conrad, Defendants.
• Court: U.S. District Court — Southern District of California

36 F.Supp.2d 1254

Carlos BARELA (Chavaris), Plaintiff, v. D. VARIZ; M. Conrad, Defendants.

No. 98-1186-JFS.

United States District Court, S.D. California.

February 19, 1999.

Carlos Barela (Chavaris), pro se.

Michelle A. Des Jardins, Deputy Atty. Gen., for Defendants.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS WITHOUT PREJUDICE [8-1]

STIVEN, United states Magistrate Judge.

A hearing on Defendants' Motion to Dismiss was held in Courtroom E, on January 19, 1999, before the Honorable James F. Stiven, United States Magistrate Judge, pursuant to Local Rule 72.3. and 28 U.S.C. § 636(c). Plaintiff Carlos Barela (Chavaris), pro se and in forma pauperis, appeared telephonically, and Michelle A. Des Jardins, Deputy Attorney General for the State of California, appeared in court on behalf of Defendants.

I. PROCEDURAL HISTORY

On June 29, 1998, Plaintiff filed a federal civil rights complaint, pursuant to 42 U.S.C. § 1983, against correctional employees D. Variz and M. Conrad. Plaintiff is presently incarcerated in California State Prison for Los Angeles County at Lancaster, California. The incidents underlying Plaintiff's claims occurred while Plaintiff was incarcerated in Calipatria State Prison. D. Variz is a sewing instructor employed at Calipatria State Prison and M. Conrad was Variz's supervisor also employed at the prison.

Plaintiff's complaint alleges that he learned in July 1997 that fifty-nine (59) days work-time, earned from March through July 1997, had been deducted from his earned work-time credits by Plaintiff's instructor, Variz.¹ Plaintiff contends that when questioned, Variz indicated that she had deducted the credits because Plaintiff was spending too much time at the Law Library. Plaintiff stated that he had been issued a priority pass by prison authorities to use the Law Library during work hours because he had court deadlines to meet. Defendant Variz stated she would not restore the deducted credits. When Plaintiff stated he would sue Variz for the deprivation of his due process rights, Plaintiff claims that Variz's supervisor, M. Conrad, called Plaintiff to her office to intimidate him and harass him.

Plaintiff claims that Defendant Variz then fabricated a disciplinary report (CDC 115) on July 29, 1997, to "cover her arbitrary actions". Plaintiff alleges that this report falsely accused Plaintiff of reporting late to his assignment and of receiving prior disciplinary reports (CDC 128As) for reporting late and failing to report to his assigned job. On August 12, 1997, a disciplinary hearing was held, during which Plaintiff testified. The hearing officer dismissed the CDC 115 (the violation for reporting late to his job on July 29, 1997).²

Plaintiff claims that deducting the 59 days work-time violated his Fifth and Fourteenth Amendment constitutional rights. Plaintiff seeks money damages in the manner of compensatory damages of $25,000; punitive damages of $75,000; costs of this action; and any additional relief deemed just and proper by this Court.

Defendants move to dismiss the complaint based on the following: 1) Plaintiff is a vexatious litigant and the case should be dismissed under 28 U.S.C. § 1915(g) until Plaintiff pays filing fees; 2) the action should be brought by petition for a writ of habeas corpus; 3) the complaint fails to state a claim; 4) Defendants are entitled to qualified immunity; and 5) Plaintiff has not exhausted the necessary administrative remedies.

II. DISCUSSION

A. Legal Standards for Pro Se Pleadings.

A pro se litigant is more likely to make errors in pleadings than counsel. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). The allegations in Barela's Complaint are held to less stringent standards than formal pleadings drafted by lawyers. Id. (citing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), reh'g denied, 405 U.S. 948, 92 S.Ct. 963, 30 L.Ed.2d 819 (1972)).

B. Plaintiff's Claims are not Cognizable under 42 U.S.C. § 1983.

Plaintiff seeks damages for an alleged violation of due process when Defendant Variz "deducted" his work-time credits. Defendants argue that Plaintiff's exclusive remedy for a challenge to the legality or duration of his confinement is a petition for a writ of habeas corpus.

The Supreme Court has clearly held that a state prisoner's claim for damages is not cognizable under 42 U.S.C. § 1983 if a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence, unless the prisoner can demonstrate that the conviction or sentence has previously been invalidated.

[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on directed appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254.

Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994).

In Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997), the Supreme Court extended this holding to a case in which a prisoner filed a claim pursuant to § 1983 alleging that the disciplinary hearing procedures, under which he was deprived of good-time credits, violated his constitutional right to due process. The Court found that the plaintiff's challenges of the proceedings implied the invalidity of the Plaintiff's sentence, because "[t]he principal procedural defect complained of ... would, if established, necessarily imply the invalidity of the deprivation of his good-time credits." Id. at 1588.

In the present case, Plaintiff has filed a complaint for damages because 59 days of work-time credit allegedly were deducted wrongfully. However, after listening to oral argument, the Court also could construe Plaintiff's claim as challenging the validity of the procedures under which Plaintiff's work-time credits were deducted. Under both Heck v. Humphrey and Edwards v. Balisok, either claim challenges the validity of Plaintiff's sentence. At this point, Plaintiff has not obtained a finding that the "deduction" of his work-time credits was reversed by direct appeal, expunged by executive order, declared invalid by a state tribunal, or called into question by a federal court's issuance of a writ of habeas corpus. Accordingly, Plaintiff's claim for damages is not cognizable under 42 U.S.C. § 1983. This Court GRANTS WITHOUT PREJUDICE Defendants' Motion to Dismiss Plaintiff's claim for damages pursuant to 42 U.S.C. § 1983.³

C. Failure to Exhaust Administrative Remedies.

Defendant also moves to dismiss Plaintiff's claims on the basis that Plaintiff has failed to exhaust his administrative remedies with regard to these claims. Plaintiff supplied documentation that he appealed the CDC 115 issued to him by Defendant Variz on July 29, 1997. However, Plaintiff failed to allege or provide documentation that he ever appealed the deduction of his 59 days of work-time credit.⁴

42 U.S.C. § 1997e(a), as amended by the Prison Litigation Reform Act of 1995 ("PLRA"), Pub.L. No. 104-134, Title VII, §§ 801-10, 110 Stat. 1321 (1996), provides that "[n]o action shall be brought with respect to prison conditions under section 1983 ... or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted."

The administrative appeal system for inmates in the California prison system is described in Title 15 of the California Code of Regulations. "Any inmate or parolee under the [California Department of Correction's] jurisdiction may appeal any departmental decision, action, condition or policy perceived by those individuals as adversely affecting their welfare." CAL.CODE REGS. tit. 15 § 3084.1(a). In order to exhaust administrative remedies, a prisoner must first attempt to informally resolve the problem with the "staff [member] involved in the action or decision being appealed." Id. § 3084.5(a). If unsuccessful, the prisoner must then submit a formal appeal on an inmate appeal form (i.e., a CDC 602 form) to the institution's Appeals Coordinator or Appeals Office, id. § 3084.5(b), and if unsuccessful there, must submit a formal appeal for second level review, id. § 3084.5(c), which is conducted by the institution head or designee. Id. § 3084.5(e)(1). Finally, the prisoner must submit a formal appeal for third level review to the director of the California Department of Corrections or the director's designee. Id. § 3084.5(e)(2).

Before Plaintiff may properly file an action in this Court, Plaintiff must fully exhaust the administrative requirements of the California Code of Regulations, or show that he has exhausted "available" administrative remedies within the meaning of § 1997e(a). Plaintiff provides documentation of a successful appeal of the CDC 115 issued by Defendant Barela on July 29, 1997. However, Plaintiff does not allege and does not provide any documentation that he has exhausted his administrative remedies with regard to the claim that 59 days of work-time credit were wrongfully deducted from his sentence. Thus, on this ground as well, the Court GRANTS WITHOUT PREJUDICE Defendants' motion to dismiss.⁵

D. Plaintiff's Status as a Vexatious Litigant.

Defendant also moves to dismiss Plaintiff's claims on the ground that he is a vexatious litigant under 28 U.S.C. § 1915(g) and therefore his in forma pauperis status should be revoked and this action dismissed until Plaintiff can pay the filing fees. Defendant asserts that Plaintiff has filed numerous lawsuits in the Southern, Central, and Eastern Districts of California. Defendants filed seven exhibits for judicial notice, alleging that each of these cases qualified as a "strike" towards ...