Von Villas v. Pallares, Case No. 1:13-cv-01869-LJO-JLT (PC)

• Decision Date: 07 August 2014
• Docket Number: Case No. 1:13-cv-01869-LJO-JLT (PC)
• Court: U.S. District Court — Eastern District of California
• Parties: ROBERT A. VON VILLAS, Plaintiff, v. PALLARES, et al., Defendants.

ROBERT A. VON VILLAS, Plaintiff,
v.
PALLARES, et al., Defendants.

Case No. 1:13-cv-01869-LJO-JLT (PC)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

August 7, 2014

ORDER REQUIRING PLAINTIFF TO EITHER FILE AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON CLAIMS FOUND TO BE COGNIZABLE

(Doc. 1)

RESPONSE DUE WITHIN 30 DAYS

I. Background

Plaintiff, Robert A. Von Villas, is a state prisoner who is proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on November 18, 2013. (Doc. 1.)

A. Screening Requirement

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally frivolous, malicious, fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2); 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).

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B. Summary of Plaintiff's Complaint

Plaintiff complains of acts that occurred while he was an inmate at the California Substance Abuse Treatment Facility and State Prison ("SATF") in Corcoran, California. Plaintiff names Lieutenants M. Pallares, and T. Akin, Sergeant S. Heberling, and Correctional Officer S. McAfee as Defendants. Plaintiff seeks monetary, declaratory, and injunctive relief.

Plaintiff alleges that as a result of his filing administrative grievances ("602") regarding the handling of his and his cellmate's mail, Sgt. Heberling charged him with a rules violation of which he was found guilty and subsequently submitted a letter to internal affairs (a copy of which was submitted to Lt. Akin) and a 602 regarding Sgt. Heberling's retaliation via the false report. (Doc. 1, Compl., at ¶¶ 8-17.) Subsequently, an anonymous note was turned in which stated that Plaintiff was in danger. (Id., at ¶18.) As a result, Sgt. Heberling strongly suggested that Plaintiff consider transferring to another yard, but both Plaintiff and his roommate refused as they had no safety concerns. (Id., at ¶ 19.)

On May 15, 2011, the cell that Plaintiff and his cellmate were in was searched for a contraband cell phone, which was not found, and their possessions and beds were left in a ransacked state. (Id., at ¶ 20.) Sgt. Heberling later told the investigating officer that Plaintiff became very agitated and boisterous when his cell was being searched, but it was Plaintiff's cellmate who had become agitated and Plaintiff had to calm him down. (Id., at ¶¶ 20, 26.)

Two days later, on May 17, 2011, a box of candy bars appeared by their cell door with a note from an unidentifiable inmate requesting Plaintiff to trade for ten cans of soup. (Id., at ¶ 21.) Neither Plaintiff nor his cellmate wanted the candy bars, so attempted to identify who it was from so that it might be returned, but the inmate porter did not recognize the handwriting and the signature was unidentifiable such that Plaintiff's cellmate placed the box of candy bars on the top of his locker to be returned when the unidentifiable inmate made further inquiry. (Id., at ¶¶ 22, 23.) On May 19, 2011, Plaintiff was taken into custody on the basis of an anonymous kite that stated Plaintiff had paid his cellmate to attack Sgt. Heberling, Plaintiff told the investigating officer that there was a box of candy bars on the top of his cellmate's locker that wasn't theirs and they were waiting to return to its owner once identified. (Id., at ¶ 24.) The investigating officer

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interviewed the inmate porter and confirmed this. (Id.) Plaintiff was placed in Administrative Segregation ("Ad Seg"). (Id.) A weapon was found secreted in one of the candy bars on the top of Plaintiff's cellmate's locker and Plaintiff was issued an RVR for possession of a weapon. (Id., at ¶¶ 27-28.)

The officer assigned to investigate this incident told Plaintiff that he was too busy to interview Plaintiff's witnesses, but Lt. Akin denied Plaintiff's request for a new investigating officer. (Id., at ¶ 30.) Lt. Akin likewise denied Plaintiff's request for a copy of the anonymous note used against him. (Id., at ¶ 31.) Lt. Akin denied all of Plaintiff's witnesses, did not include Plaintiff's written statement in his disposition other than to indicate that it was attached (but later was lost), denied all of Plaintiff's witnesses and/or evidence which showed he had been set up, and found Plaintiff guilty of possession of a weapon without establishing that Plaintiff even had knowledge of the weapon, let alone possession of it (the candy bars were found negative of Plaintiff's prints). (Id., at ¶ 32.)

On August 4, 2011, the ICC gave Plaintiff a ten month term in the SHU which they suspended due to Plaintiff's documented 21 year disciplinary free record, resulting in Plaintiff being returned to his regular housing facility "D." (Id., at ¶ 35.)

On August 8, 2011, Plaintiff received his final copy of the hearing regarding the charge of possession of a weapon and he filed a 602 challenging the finding of guilty by Lt. Akin. (Id., at ¶ 37.)

On August 11, 2011, Plaintiff was placed in Ad Seg for the original charge of staff safety which Plaintiff's original opposition to was previously deemed "not relevant." (Id., at ¶ 39.) Seven days later, ICC rescinded their August 4, 2011 order suspension of the ten month SHU term. (Id., at ¶ 40.)

Plaintiff requested to present witnesses and evidence at his I.E. hearing and was granted a written copy of the "wording" used in the anonymous kite which indicated he intended harm to Sgt. Heberling which showed that Plaintiff's cellmate had the alleged knife and did not show that Plaintiff had any knowledge of a weapon being hidden in the box of candy bars. (Id., at ¶¶ 51, 52, 53.) The I.E. officer denied Plaintiff's requests for response to various questions as "not

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relevant" or "redundant" which denied the fact finder of making that determination and of the information contained therein. (Id., at ¶ 54.)

On October 28, 2011, Lt. Pallares convened Plaintiff's reissue/rehearing and denied Plaintiff's requests to present evidence showing he was set up; let the I.E. officer decide what was relevant or redundant; failed to document that no investigation was conducted regarding the incident other than the cell search and anonymous note; failed to show that the anonymous note implicating Plaintiff was not investigated; did not allow Plaintiff to even discuss the contents of the anonymous note (which had already been disclosed to Plaintiff); and did not include any of the evidence that the fingerprint testing had come back negative, any of the exculpatory statements from witnesses including the inmate porter, or the original investigating officer -- Lt. Pallares then found Plaintiff guilty. (Id., at ¶ 55.) Plaintiff discovered in January of 2012 that his written statement that he gave to Lt. Akin was not part of the record or considered by Lt. Pallares. (Id., at ¶ 60.)

C/O McAfee was the officer who removed and inventoried the property of Plaintiff and his cell from their cell when Plaintiff was placed in Ad Seg. and when she brought the inventory form to Plaintiff for his signature, she indicated that she had comingled Plaintiff's and his cellmate's property, but that she would take care of items that Plaintiff noticed were missing from the list of inventory of his property. (Id., at ¶ 25.) C/O McAfee disposed of Plaintiff's 602 for not being allowed to separate his property from that of his cellmate in response to Plaintiff's alleged threat against Sgt. Heberling. (Id., at ¶ 29.)

On June 30, 2011, C/O McAfee brought Plaintiff several items of his personal property and indicated that Plaintiff's cellmate had gone through his items (which Plaintiff was not allowed to be present for) and said these things belonged to Plaintiff. (Id., at ¶ 33.) Plaintiff filed another 602 to gain access to his and his cellmate's comingled property which C/O McAfee responded to with a lie and said Plaintiff's items had been loaned out or mixed and not recovered and/or did not respond to Plaintiff's request for an interview which Plaintiff feels was in retaliation for Plaintiff's staff complaint against Sgt. Heberling. (Id., at ¶ 34.)

Around August 9, 2011, Plaintiff confronted C/O Akin about his missing property in

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response to which C/O Akin Plaintiff's missing tennis shoes and offered to give Plaintiff another inmate's hot pot which had not been claimed, which Plaintiff refused wanting his own hot pot returned. (Id., at ¶ 38.) Plaintiff variously makes further allegations regarding his efforts to obtain his missing property from C/O McAfee. (Id., at ¶¶ 45, 48, 52, 58, 59.)

As a result of all of this, Plaintiff spent nearly ten months in the SHU, was transferred to a higher security "180" level prison, lost his Medium "A" custody status, lost his 1989 priority effective work date, and his twenty year clean prison record was destroyed, and he developed an anxiety disorder.¹ (Id., at ¶¶ 42, 44, 46, 56, 63.)

Plaintiff alleges that, by these actions: (1) Sgt. Heberling violated the First and Fourteenth Amendments, various sections of Title 15 of the California Code of Regulations, "Reprisal; State Tort, Intentional," and 28 U.S.C. §2254 (see id., at pp. 19-20); (2) Lt. Akin violated the Fourteenth Amendment, his rights to due process, various sections of Title 15 of the California Code of Regulations and the California Penal Code, and 28 U.S.C. §2254 (see id., at pp. 21-22);; (3) Lt. Pallares violated the Fourteenth Amendment, his rights to due process, various sections of Title 15 of the California Code of Regulations and the California Penal Code "Cal Tort - Intentional," and 28 U.S.C. § 2254 (see id., at pp. 23-25); and (4) C/O McAfee violated the First Amendment, his liberty interests, "Negligent & Intentional State Tort," various...