1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10

NEXIS RENE GOMEZ,

11 Case No. 22-cv-05310 BLF (PR) Plaintiff, 12 ORDER GRANTING DEFENDANTS’

MOTION FOR SUMMARY

v. 13 JUDGMENT

14

V. GARCIA, et al.,

15 Defendants. (Docket No. 24) 16

17 18 Plaintiff, a state prisoner proceeding pro se, filed this civil rights action pursuant to 19 42 U.S.C. § 1983 against prison officials at the Correctional Training Facility (“CTF”). 20 The first amended complaint (“FAC”) is the operative complaint. Dkt. No. 11.1 The Court 21 found the FAC stated a cognizable claim against Defendants V. Garcia, S. Pedone, and C. 22 Whitman for the violation of Plaintiff’s due process rights under the Fourteenth 23 Amendment in connection with disciplinary proceedings. Dkt. No. 12 at 2. The matter 24 proceeded based on Plaintiff’s allegation that his appeal challenging the rehearing was 25 granted, which implied that the RVR had been reversed. Id. 26

27 1 All page references herein are to the Docket pages shown in the header to each document 1 Defendants filed a motion for summary judgment on the grounds that Plaintiff was 2 not deprived of a liberty interest that implicates the protections of the due process clause, 3 he received all the process due and more than “some evidence” supported the guilty 4 finding, and they are entitled to qualified immunity. Dkt. No. 24. Defendants 5 subsequently filed an amended declaration from counsel, Deputy Attorney General 6 Gregory M. Cribbs, with an Exhibit A in support of their summary judgment motion. Dkt. 7 No. 28.2 Plaintiff filed an opposition, which is supported by his declaration, copies of the 8 RVR and hearing results, as well as related grievance appeal papers. Dkt. No. 27. 9 Defendants filed a reply. Dkt. No. 29. 10 For the reasons set forth below, Defendants’ motion for summary judgment is 11 GRANTED. 12 13 DISCUSSION 14 I. Statement of Facts3 15 Plaintiff was housed at CTF at all times relevant to the events in this action. 16 Defendant Pedone was employed as a Correctional Lieutenant at CTF at the time; he has 17 since retired. Defendants Garcia and Whitman were Correctional Officers at CTF at the 18 time. 19 On December 28, 2021, the CTF Investigative Services Unit conducted an 20 investigation in Plaintiff’s housing unit regarding allegations of altered Hiteker Tablets. 21 DKt. No. 11 at 2. As part of that investigation, Defendant Garcia, an ISU officer at the 22 time, conducted a search of Plaintiff’s Hiteker Tablet. Id. at 2-3. According to Plaintiff, 23 2 It appears the original filing was missing page 2 of counsel’s declaration. Compare Dkt. 24 No. 24-1 at 1-2, with Dkt. No. 28 at 1-2. Exhibit A is a copy of Plaintiff’s First Set of Interrogatories, which includes the Rules Violation Report, which is the subject of this 25 action, attached as Exhibit B to the Interrogatories. Dkt. No. 28. The Court will refer to Defendants’ supporting papers filed under Docket No. 28 throughout this order. 26 1 she discovered some “thumbnail images in the hard drive and immediately concluded that 2 the tablet was altered from its original state, without conducting a test.” Id. at 3. 3 A. Original RVR and Disciplinary Hearing 4 According to the Rules Violation Report (“RVR”), Defendant Garcia discovered a 5 hidden application called, “Solid Explorer” while checking the “Default Notification 6 Sound” under “Settings.” Dkt. No. 28 at 17, Cribbs Decl., Ex. A. Within the application, 7 Defendant Garcia discovered unauthorized movies, such as “Coco,” “Boss Baby,” and 8 “The Dark Knight Rises,” downloaded onto one of the files. Id. Based upon the discovery 9 of the hidden application which was installed on the tablet, “which allows the tablet to act 10 as a memory storage device permitting the inmate to store items such as but not limited to 11 unauthorized photographs, movies, videos, screenshots, pornography and STG related 12 materials.” Id. Defendant Garcia determined, therefore, that the tablet had been altered 13 from its original state, to allow the user to add and remove apps. Id. She issued Plaintiff 14 an RVR (Log No. 7152651) on January 12, 2022, charging him with possession of a 15 “wireless device component,” in violation of California Code of Regulations, title 15, 16 section 3006(c). Id. Plaintiff received a copy of the RVR, and evidence in support, on 17 January 13, 2022. Id. at 8. 18 On January 16, 2022, the RVR hearing was conducted by Defendant Lt. Pedone as 19 the senior hearing officer (“SHO”). Dkt. No. 11 at 3, 8 (Ex. A of FAC). Plaintiff pled not 20 guilty, asserting that the specific act does not fit the charge; otherwise, he declined to call 21 any witnesses or present any evidence. Id. at 11. The evidence presented at the hearing 22 included: (1) the RVR authored by Defendant Garcia after confiscating Plaintiff’s tablet; 23 (2) six photographic images associated with the charged offense, including images of the 24 tablet confiscated from Plaintiff; (3) a CTF property receipt, documenting staff’s 25 confiscation of the tablet; and (4) Plaintiff’s answer “yes,” to the question presented during 26 the RVR hearing, “[D]id you alter and put these movies on your tablet?” Id. at 12. 1 of “Possession of a Wireless Device Component,” by a preponderance of the evidence. Id. 2 Defendant Pedone gave considerable weight to Defendant Garcia’s report of what she 3 discovered on Plaintiff’s tablet, the photographic evidence, and the property receipt. Id. 4 Defendant Pedone also gave meaningful weight to Plaintiff’s acknowledgment that he had 5 altered and put movies on his tablet. Id. Lastly, Defendant Pedone considered the totality 6 of Plaintiff’s defense and found it not to be viable. Id. As a result of the guilty finding, 7 Plaintiff was disciplined with a 30-day forfeiture of credit, a 30-day loss of privileges, and 8 1-year loss of family visits. Id. at 13. 9 Plaintiff appealed, and the matter was assigned Log No. 223265. Dkt. No. 27 at 26 10 (Ex. C of Pl.’s Opp.). The appeal was denied by the Office of Grievances (“OOG”) at the 11 institutional level.4 Id. at 26-27. Plaintiff appealed the matter to the Office of Appeals 12 (“OOA”), which determined there was a due process violation; CTF was directed to 13 reissue and rehear the RVR “as wireless communication portion of the charge was not 14 supported.” Dkt. No. 11 at 32.5 In accordance with that OOA decision, on July 6, 2022, 15 CTF’s Chief Disciplinary Officer (“CDO”) C. Freeman ordered that RVR Log No. 16 7152651 be reissued and reheard. Dkt. No. 11 at 19 (“RVR Action Taken”). Specifically, 17 Officer Freeman determined that although the tablet appeared to be altered, “the evidence 18 utilized to support the tablet had communication capability is unclear.” Id. Officer 19 Freeman also stated that if Plaintiff was found guilty after the rehearing, “he will not be 20 4 Under the regulations effective June 1, 2020, there are two levels of review for non- 21 health-care appeals by inmates, referred to as a grievance and an appeal. At the first level, the inmate submits a form CDCR 602-1 to the Institutional Office of Grievances at the 22 prison or other facility where he is housed. See id. at § 3482(a), (c) (repealed eff. June 1, 2020). “In response, a claimant shall receive a written decision” from the Institutional 23 Office of Grievances “clearly explaining the reasoning for the Reviewing Authority’s decision as to each claim.” Id. at § 3481(a) (repealed eff. June 1, 2020). At the second 24 level, an inmate dissatisfied with the Institutional Office of Grievances’ decision at first level submits a form CDCR 602-2 to the CDCR’s Office of Appeals in Sacramento. Id. at 25 §§ 3481(a), 3485(a) (repealed eff. June 1, 2020).

26 5 The parties did not submit a copy of this OOA decision. But this decision is referenced 1 assessed a forfeiture of credit or any penalties other than what was already imposed in the 2 initial hearing.” Id. 3 B. Reissued RVR and Rehearing 4 The RVR was reissued the same day, on July 6, 2022, by Officer E. Santillan, a 5 non-party. Dkt. No. 27 at 31-32. The substance of the RVR was identical to the original 6 that was authored by Defendant Grace. Compare id. with Dkt. No. 28 at 17. Plaintiff 7 received a copy of the reissued RVR on July 14, 2022. Dkt. No. 11 at 21. 8 A rehearing was held on July 22, 2022, before Defendant Whitman as the SHO. 9 Dkt. No. 11 at 21, 28. Plaintiff again pleaded not guilty and declined to call any witnesses 10 or present any evidence; his only statement was that Defendant Garcia “is not qualified to 11 investigate the tablet.” Id. at 24. The evidence presented at the re-hearing included: (1) 12 the same RVR authored by Defendant Garcia; (2) the property receipt; (3) photographic 13 evidence depicting the tablet that was confiscated; and (4) Plaintiff’s statement that 14 Defendant Garcia was not qualified to investigate the tablet. Id. at 25-26. 15 Defendant Whitman found Plaintiff guilty of violating section 3006(c)(20), with the 16 specific act of “Possession of a Wireless Device Component,” by a preponderance of the 17 evidence. Id. at 25. Specifically, he found that the tablet found in Plaintiff’s possession 18 contained an unauthorized application which allowed the tablet to act as a memory storage 19 device. Id. Defendant Whitman also considered Plaintiff’s statement regarding Defendant 20 Garcia’s lack of qualifications, and found it held little weight because Plaintiff did not 21 otherwise provide any information refuting Defendant Garcia’s report nor did it prove his 22 innocence. Id. According to Defendants, the “charge did not require any facts to support 23 the conclusion that the altered tablet have communication ability, as Plaintiff argued.” 24 Dkt. No. 24 at 8. No further discipline was imposed as the “time assessed from the 25 original hearing will count as time served.” Dkt. No. 11 at 27. That included 30 days of 26 credit loss, 30 days loss of privileges, and loss of family visits. Id. at 26-27. 1 at 32. On August 18, 2022, the OOG decision noted that the OOA had already determined 2 there was a due process violation in connection with Plaintiff’s original RVR, under his 3 previous grievance Log No. 223265, and had ordered the prison to reissue and rehear the 4 charge. Dkt. No. 11 at 32. The OOG granted the claim but stated that no further remedy 5 was needed because since that time, “CTF initiated a Reissue/Rehear of RVR Log# 6 7152651(R1) ‘Possession of a wireless device component’ on July 6, 2022,” and rehearing 7 was held on July 22, 2022. Id. There is no indication whether Plaintiff appealed this 8 matter to the OOA. 9 In the FAC, Plaintiff claimed his right to due process was violated because there 10 was insufficient evidence to support the charge. Dkt. No. 11 at 3. He seeks declaratory 11 and injunctive relief, expungement of the RVR from his file, return of the tablet or 12 reimbursement for its value, and cost of suit. Id. 13 II. Summary Judgment 14 Summary judgment is proper where the pleadings, discovery and affidavits show 15 that there is “no genuine dispute as to any material fact and the movant is entitled to 16 judgment as a matter of law.” Fed. R. Civ. P. 56(a). A court will grant summary judgment 17 “against a party who fails to make a showing sufficient to establish the existence of an 18 element essential to that party’s case, and on which that party will bear the burden of proof 19 at trial . . . since a complete failure of proof concerning an essential element of the 20 nonmoving party’s case necessarily renders all other facts immaterial.” Celotex Corp. v. 21 Catrett, 477 U.S. 317, 322-23 (1986). A fact is material if it might affect the outcome of 22 the lawsuit under governing law, and a dispute about such a material fact is genuine “if the 23 evidence is such that a reasonable jury could return a verdict for the nonmoving party.” 24 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 25 Generally, the moving party bears the initial burden of identifying those portions of 26 the record which demonstrate the absence of a genuine issue of material fact. See Celotex 1 at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other 2 than for the moving party. But on an issue for which the opposing party will have the 3 burden of proof at trial, the moving party need only point out “that there is an absence of 4 evidence to support the nonmoving party’s case.” Id. at 325. 5 The burden then shifts to the nonmoving party to “go beyond the pleadings and by 6 his own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on 7 file,’ designate specific facts showing that there is a genuine issue for trial.’” Celotex 8 Corp., 477 U.S. at 324 (citations omitted). If the nonmoving party fails to make this 9 showing, “the moving party is entitled to judgment as a matter of law.” Id. at 323. If the 10 evidence in opposition to the motion is merely colorable, or is not significantly probative, 11 summary judgment may be granted. See Liberty Lobby, 477 U.S. at 249-50. 12 The Court’s function on a summary judgment motion is not to make credibility 13 determinations or weigh conflicting evidence with respect to a material fact. See T.W. 14 Elec. Serv., Inc. V. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). 15 The evidence presented and the inferences to be drawn from the facts must be viewed in a 16 light most favorable to the nonmoving party. See id. at 631. The nonmoving party has the 17 burden of identifying with reasonable particularity the evidence that precludes summary 18 judgment. Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996). If the nonmoving party 19 fails to do so, the district court may properly grant summary judgment in favor of the 20 moving party. See id. 21 A. Due Process 22 Prisoners retain their right to due process subject to the restrictions imposed by the 23 nature of the penal system. See Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Thus 24 although prison disciplinary proceedings are not part of a criminal prosecution and the full 25 panoply of rights due a defendant in such proceedings does not apply, where serious rules 26 violations are alleged and the sanctions to be applied implicate state statutes or regulations 1 sanctions are severe, the Due Process Clause requires certain minimum procedural 2 protections. See id. at 556-57, 571-72 n.19. The placement of a California prisoner in 3 isolation or segregation, or the assessment of good-time credits against him, as a result of 4 disciplinary proceedings, for example, is subject to Wolff’s procedural protections if (1) 5 state statutes or regulations narrowly restrict the power of prison officials to impose the 6 deprivation, and (2) the liberty in question is one of “real substance.” See Sandin v. 7 Conner, 515 U.S. 472, 477-87 (1995). 8 Here, Plaintiff’s original RVR hearing finding him guilty of the charge resulted in 9 the forfeiture of 30 days good time credits. Dkt. No. 11 at 8. The re-hearing which also 10 found him guilty did not change the imposition of that sanction. Id. at 29. Accordingly, 11 the deprivation of good time credits to Plaintiff was one of “real substance” that required 12 Wolff’s procedure protections. 13 Wolff established five procedural requirements. First, “written notice of the charges 14 must be given to the disciplinary-action defendant in order to inform him of the charges 15 and to enable him to marshal the facts and prepare a defense.” 418 U.S. at 564. Second, 16 “at least a brief period of time after the notice, no less than 24 hours, should be allowed to 17 the inmate to prepare for the appearance before the [disciplinary committee].” Id. Third, 18 “there must be a ‘written statement by the factfinders as to the evidence relied on and 19 reasons’ for the disciplinary action.” Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 489 20 (1972)). Fourth, “the inmate facing disciplinary proceedings should be allowed to call 21 witnesses and present documentary evidence in his defense when permitting him to do so 22 will not be unduly hazardous to institutional safety or correctional goals.” Id. at 566. 23 Fifth, “[w]here an illiterate inmate is involved . . . or where the complexity of the issues 24 makes it unlikely that the inmate will be able to collect and present the evidence necessary 25 for an adequate comprehension of the case, he should be free to seek the aid of a fellow 26 inmate, or . . . to have adequate substitute aid . . . from the staff or from a[n] . . . inmate 1 Defendants assert that the RVR hearing and re-hearing procedures were 2 constitutionally sufficient. Dkt. No. 24 at 10. Defendants assert that the FAC contains no 3 allegations that Plaintiff did not receive all the protections under Wolff. Id. Furthermore, 4 Defendants assert that there is no dispute that the proceedings at issue met all of the Wolff 5 factors. Id. at 10-11. Therefore, Defendants assert, the record is undisputed that Plaintiff 6 received all the process and protections required under Wolff. Id. 7 In opposition, Plaintiff asserts that his success on appeal establishes that his right to 8 due process was violated, but that the CDCR “failed to provide the requested relief which 9 consisted in the dismissal of the RVR[] and the returning of his tablet.” Dkt. No. 27 at 6. 10 He contends that he therefore need not “argue here the quantity or quality of the evidence 11 during the disciplinary process [because] the issue was resolved in his favor.” Id. He 12 asserts that since the CDCR “admitted” that Defendants violated his due process rights and 13 failed to dismiss the RVRs, he is entitled to relief in this action. Id. 14 In reply, Defendants point out that Plaintiff’s opposition details all the process he 15 received. Dkt. No. 29 at 2. Defendants contend that the CDCR’s response at the first level 16 did nothing more than grant Plaintiff a rehearing. Id. Defendants assert that Plaintiff’s 17 submitted documents do not support his assertion of an “admission” by the CDCR, but 18 rather the opposite – that ample due process procedures and protections were afforded to 19 Plaintiff during the disciplinary process. Id.at 3. 20 Viewing the evidence in the light most favorable to Plaintiff, the Court finds there is 21 no genuine dispute of material fact that Plaintiff received all the procedural protections 22 under Wolff during the course of the disciplinary proceedings. Defendants have met their 23 initial burden of submitting evidence showing the absence of a genuine issue of material 24 fact on this issue. First, the original and re-issued RVRs detailed the charge and the 25 circumstances surrounding it. Dkt. No. 28 at 17; Dkt. No. 27 at 31. The evidence shows 26 that Plaintiff was served with the RVRs within days of their issue and at least 24 hours 1 second Wolff factors. Wolff, 418 U.S. at 564. Furthermore, the disciplinary hearing results 2 for both the original hearing and rehearing contained a written statement by the SHO as to 3 the evidence relied on and reasons for the disciplinary action, which satisfies the third 4 Wolff factor. Dkt. No. 11 at 12, 25; Wolff, 418 U.S. at 564. Furthermore, Plaintiff was 5 given an opportunity to call witnesses and present evidence, but he chose not to at both the 6 hearing and rehearing; instead, he gave a short statement. Dkt. No. 11 at 11, 24 24; Wolff, 7 418 U.S. at 566. Lastly, it is undisputed that Plaintiff is not illiterate, was present and in 8 good health for the hearing and rehearing, and that the issues presented were not legally 9 complex, such that the assistance of another inmate or staff would have been required. 10 Dkt. No. 11 at 8-9, 21-22; Wolff, 418 U.S. at 570. In response, Plaintiff has failed to 11 designate specific facts showing that there is a genuine issue for trial regarding the 12 procedural protections he received. Celotex Corp., 477 U.S. at 324. The FAC contains no 13 allegations of a deprivation of a procedural protection under Wolff, nor does Plaintiff 14 dispute Defendants’ evidence on this issue in opposition. Therefore, Defendants are 15 entitled to summary judgment on this issue. Id. at 323. 16 2. Evidence Requirements 17 Plaintiff claims that the evidence does not support the guilty finding for “possession 18 of a wireless device component.” He relies on the fact that his appeal of the first guilty 19 finding was granted based on a due process violation. Specifically, the OOA found that 20 due process was violated as the “wireless communication portion of the charge was not 21 supported.” Dkt. No. 11 at 32. However, the violation of procedural due process rights 22 requires only procedural correction and not a reinstatement of the substantive right. See 23 Raditch v. United States, 929 F.2d 478, 481 (9th Cir. 1991). In other words, the remedy 24 for the denial of procedural due process is more process. Here, Plaintiff received this 25 remedy through the reissued RVR and rehearing. Accordingly, the remaining issue is 26 whether the guilty finding from the rehearing comports with due process. 1 revocation of good-time credits does not comport with the minimum requirements of 2 procedural due process in Wolff unless the findings of the prison disciplinary board are 3 supported by some evidence in the record. The standard for the modicum of evidence 4 required is met if there was some evidence from which the conclusion of the administrative 5 tribunal could be deduced. See id. at 455. An examination of the entire record is not 6 required nor is an independent assessment of the credibility of witnesses or weighing of the 7 evidence. See id. The relevant question is whether there is any evidence in the record that 8 could support the conclusion reached by the disciplinary board. See id. The Supreme 9 Court reiterated that revocation of good-time credits is not comparable to a criminal 10 conviction and neither the amount of evidence necessary to support such a conviction, nor 11 any other standard greater than some evidence, applies in this context. See id. at 456. 12 Defendants assert that there was “some evidence” to support the guilty finding. 13 Dkt. No. 24 at 12. Defendants contend that Defendant Garcia’s RVR and the photographic 14 images of the tablet constitute “some evidence” upon which Defendant based their 15 conclusions that Plaintiff possessed an altered tablet in violation of prison rules. Id. 16 Defendants assert that the fact that there was no “test” of the tablet by someone other than 17 Defendant Garcia is irrelevant and immaterial. Id. Lastly, Defendants assert that 18 Plaintiff’s disagreement with the definition of “wireless device component” as set forth in 19 prison regulations is of no moment and does not give rise to a genuine issue of material 20 fact. Id. 21 In opposition, Plaintiff asserts that “some evidence” is not the specific claim he is 22 invoking, but rather the assessment of good-time credits. Dkt. No. 27 at 6. He contends 23 that although he was successful on appeal, the CDCR failed to provide the requested relief, 24 i.e., dismissal of the RVR and the return of his tablet. Id. But as Defendants point out in 25 reply, the CDCR’s response merely granted a re-hearing, not the specific request he 26 sought. Dkt. No. 29 at 2. Defendants assert that Plaintiff has misinterpreted the 1 procedures and protections during the disciplinary process. Id. at 3. 2 Viewing the evidence in the light most favorable to Plaintiff, the Court finds there is 3 no genuine dispute of material fact that “some evidence” supports Defendant Whitman’s 4 guilty finding. The Court first notes that it addressed this issue in its screening order. Dkt. 5 No. 10 at 5-6. The undisputed facts show that Defendant Whitman “fully considered and 6 weighed all the evidence” and determined that the “written report [by Defendant Garcia] 7 along with the preponderance of evidence is sufficient to support the finding of guilt, 8 specifically CCR Section 3006(c)-[06]-Possession of a wireless device component.” Dkt. 9 No. 11 at 25. It was undisputed that the tablet was in Plaintiff’s possession. Furthermore, 10 Defendant Garcia’s report documented that an inspection of Plaintiff’s tablet revealed that 11 an unauthorized application was downloaded on the tablet, which allowed it to act as a 12 memory storage device and download several unauthorized movies. Id. Defendant 13 Whitman also found that Plaintiff’s assertion that Defendant Garcia is “not qualified” to 14 investigate does not provide any information that would refute Defendant’s report nor 15 prove Plaintiff’s innocence. This evidence is more than sufficient to satisfy Hill’s “some 16 evidence” standard. 17 Based on the evidence presented, Defendants have shown that there is no genuine 18 issue of material fact with respect to Plaintiff’s due process claim. Celotex Corp., 477 U.S. 19 at 323. Plaintiff has failed to point to specific facts showing that there is a genuine issue 20 for trial, id. at 324, or identify with reasonable particularity the evidence that precludes 21 summary judgment, Keenan, 91 F.3d at 1279. Accordingly, Defendants are entitled to 22 judgment as a matter of law. Id.; Celotex Corp., 477 U.S. at 323. 23 24 CONCLUSION 25 For the reasons stated above, Defendants V. Garcia, S. Pedone, and C. Whitman’s 26 1 || motion for summary judgment on the due process claim against them is GRANTED.° 2 || Dkt. No. 24. Having dismissed the only claim alleged against Defendants, this case is 3 || DISMISSED with prejudice. See Celotex Corp., 477 U.S. at 323. 4 This order terminates Docket No. 24. 5 IT IS SO ORDERED. 6 || Dated: _August 19, 2024 _ feduinfhacncan

BETH LABSON FREEMAN

7 United States District Judge 8 9 10 11 12

© 15 16

Z 18

19 20 21 22 23 24 Order Granting MSJ 25 PRO-SE\BLF\CR.22\053 10Gomez_grant-msj 26 47 || ° Because the Court finds that no constitutional violation occurred, it is not necessary to reach Defendants’ qualified immunity argument.