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United States District Court

For the Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

THURSTON BRENT McAFEE,

Plaintiff,

v.

BEN CURRY; et al., 

Defendants. /

No. C 09-2497 MHP (pr)

ORDER OF SERVICE 

INTRODUCTION

Thurston Brent McAfee, an inmate at Ironwood State Prison, filed this pro se civil

rights action under 42 U.S.C. § 1983. His complaint is now before the court for review

pursuant to 28 U.S.C. §1915A. 

BACKGROUND

The acts and omissions giving rise to the claims in this action occurred while McAfee 

was incarcerated at the Correctional Training Facility in Soledad. McAfee alleges the

following:

McAfee was attacked by Southern Hispanic inmates during one of several riots that

broke out among inmates at CTF-Soledad on May 30, 2008, and suffered a "severe gash" on

his head. Complaint, p. 4. At the time the rioting broke out, he was working as a clerk in the

culinary department and was on crutches. He and other inmates were first secured in the

kitchen, and then compelled by correctional officers to go to other particular areas. McAfee

asked correctional officer Hill if he could remain at his work station because he had just had

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surgery and could not walk without crutches. C/O Hill denied the request, and stated that

sergeant Days wanted all inmates into the halls. After McAfee moved pursuant to this order

to a less safe place, he was attacked by Southern Hispanic inmates and suffered the head

injury. 

McAfee attributes his injuries in the inmate attack to correctional officers' refusal to

allow him to stay put in his work area when they were moving inmates. McAfee, who is

Black, alleges that correctional officials Days, Hill and Ingraham ordered him into an area

"with Southern Hispanic inmates with the knowledge that Southern inmates were attacking

Black inmates in two separate areas, ignoring plaintiff's request to be secured in a separate

area due to being unable to walk, that defendant's knew plaintiff had undergone knee surgery

two days prior." Complaint, p. 6. He also alleges that the "defendants knew Southern

Hispanic inmates were under perpetual orders to attack as a group," that Southern Hispanic

inmates were grouping when McAfee was ordered to the risky area, and that Southern

Hispanic inmates had been allowed into the kitchen to obtain kitchen tools to use as

weapons. Id. 

On June 9, 2008, sergeant Verdesoto issued a rules violation report charging McAfee

with participation in a riot. Sergeant Verdesoto falsely stated in his report that McAfee was

out in Lassen Hall during the riot and was a participant, relying on the medical report for this

information. Sergeant Sevey and lieutenant Truett "blindly signed the report written by

Verdesoto." Id. at 7. 

On July 1, 2008, a disciplinary hearing was held on the rules violation report. 

McAfee pled not guilty to the charge of participating in a riot. He was denied his requested

witness by the hearing officer, lieutenant J. Rivero. McAfee alleges in one place that

hearing officer Rivero did not review the medical report and the incident report but alleges in

another place that Rivero did review them. Compare id. at 7 with id. at 8. Liberally

construed, McAfee's allegations that he was found guilty "in spite of the information to the

contrary," id. at 8, appears to be a claim that the evidence was insufficient to support the

decision. McAfee was found guilty of violating § 3005(c) and was assessed 90 days credit

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forfeiture, 90 days on privilege group C and was later given a 90-day SHU term. He spent

204 days in the SHU and then was transferred to another prison on December 24, 2008. 

Although McAfee's inmate appeal was denied at the warden's level, it was granted at the

director's level. The guilty verdict was overturned and the institution was ordered to "restore

all penalties assessed as a result of the finding of guilt." Complaint, Exh. H, p. 2. 

In addition to the alleged primary wrongdoers, McAfee attempts to bring in as

defendants several people higher up in the organizational structure or only secondarily

involved in the events. For example, McAfee alleges that defendant Tucker and Collie, who

signed off on the rule violation report decision, knew or should have known that he was not

guilty of the charges. He also alleges that warden Curry refused to overturn the disciplinary

decision despite his knowledge of the due process violation and "with full knowledge of what

was going on in his prison." Id. at 8. McAfee also makes the conclusory allegations of a

massive cover-up, with each actor covering up previous misconduct as well as that he had

been the victim of a hate crime by Southern Hispanics. That is, he contends that (1) the rule

violation report was issued to cover up the misconduct of prison officials that caused McAfee

to suffer the head injury; (2) that he was found guilty of the disciplinary offense to cover up

the misconduct of the prison officials that caused him to be charged with a disciplinary

offense and caused him to suffer the head injury; and (3) that the disciplinary finding was

upheld to cover up the misconduct of the prison officials that caused him to be found guilty,

that caused him to be charged with a disciplinary offense, and that caused him to suffer the

head injury. 

DISCUSSION

A federal court must engage in a preliminary screening of any case in which a

prisoner seeks redress from a governmental entity or officer or employee of a governmental

entity. See 28 U.S.C. §1915A(a). The court must identify any cognizable claims, and

dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may

be granted, or seek monetary relief from a defendant who is immune from such relief. See

28 U.S.C. §1915A(b)(1),(2).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that

a right secured by the Constitution or laws of the United States was violated, and (2) that the

violation was committed by a person acting under the color of state law. See West v. Atkins,

487 U.S. 42, 48 (1988).

A. Eighth Amendment Claim

The Eighth Amendment's prohibition of cruel and unusual punishment requires that

prison officials take reasonable measures for the safety of inmates. See Farmer v. Brennan,

511 U.S. 825, 834 (1994). In particular, officials have a duty to protect inmates from

violence at the hands of other inmates. See id. at 833. A prison official violates the Eighth

Amendment only when two requirements are met: (1) the deprivation alleged is, objectively,

sufficiently serious, and (2) the official is, subjectively, deliberately indifferent to the

inmate's safety. See id. at 834. To be liable in a failure to prevent harm situation, the official

must know of and disregard an excessive risk to inmate safety. See id. at 837. 

Liberally construed, the complaint states a § 1983 claim against defendants Days, Hill

and Ingraham for their alleged activities that McAfee contends amounted to deliberate

indifference to a risk to his safety. These defendants allegedly refused to allow McAfee to

remain in a position of safety and compelled him (a Black inmate) to go to a place where the

danger was greater and a racial disturbance was occurring between Black and Southern

Hispanic inmates, with the latter group being the attackers. The complaint does not state a

claim against any other defendants for a violation of McAfee's Eighth Amendment rights.

Although the court has identified the deliberate indifference standard as the applicable

standard, it may be that the malicious and sadistic standard of Whitley v. Albers, 475 U.S.

312 (1986), would apply due to the riotous circumstances prison officials faced that day.

See Johnson v. Lewis, 217 F.3d 726, 733-34 (9th Cir. 2000). There is insufficient

information for the court to determine which of the two standards will apply to plaintiff's

claims, but for present purposes it is enough to note that the complaint states a § 1983 claim

for an Eighth Amendment violation under either standard.

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B. Due Process Claims

A prisoner has no constitutionally guaranteed immunity from being falsely or wrongly

accused of conduct which may result in the deprivation of a protected liberty interest. See

Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989); Freeman v. Rideout, 808 F.2d 949,

951 (2d Cir. 1986). As long as a prisoner is afforded procedural due process in the

disciplinary hearing, allegations of a fabricated charge fail to state a claim under § 1983. See

id. at 953. Liberally construed, the complaint states a due process claim against defendant

Verdesoto for making false charges against McAfee, assuming that he is able to prove his

allegations that he did not receive the required due process protections at the disciplinary

hearing resulting from those charges. A claim is not stated against defendant Sevey (who

signed Verdesoto's report as the reviewing supervisor) or against defendant Truett (who

classified the offense as serious rather than administrative), as neither apparently did

anything beyond looking at and signing the document prepared by Verdesoto. 

See Complaint, Exh. C. 

An inmate in California is entitled to due process before discipline is imposed that

results in an atypical and significant hardship in relation to the ordinary incidents of prison

life. See Sandin v. Conner, 515 U.S. 472, 484 (1995). The process due in such a prison

disciplinary proceeding includes written notice, time to prepare for the hearing, a written

statement of decision, allowance of witnesses and documentary evidence when not unduly

hazardous, and aid to the accused where the inmate is illiterate or the issues are complex. 

Wolff v. McDonnell, 418 U.S. 539, 564-67 (1974). The findings of the prison disciplinary

decision-maker must be supported by some evidence in the record, Superintendent v. Hill,

472 U.S. 445, 454 (1985), and there must be some indicia of reliability of the information

that forms the basis for prison disciplinary actions, Cato v. Rushen, 824 F.2d 703, 704-05

(9th Cir. 1987). Liberally construed, the complaint states a § 1983 claim against defendant J.

Rivero for due process violations. Rivero, the hearing officer on the disciplinary charge,

allegedly denied a witness McAfee had requested, did not read the reports, and found

McAfee guilty based on insufficient evidence. A claim is not stated against defendant

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Tucker and Collie, who allegedly signed the disciplinary hearing officer's report but did not

conduct the hearing. See Complaint, Exh. C. 

McAfee also asserts claims related to the handling of his inmate appeals. Interests

protected by the Due Process Clause may arise from two sources--the Due Process Clause

itself and laws of the states. See Meachum v. Fano, 427 U.S. 215, 223-27 (1976). There is

no constitutional right to a prison administrative appeal or grievance system. See Mann v.

Adams, 855 F.2d 639, 640 (9th Cir. 1988); Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th

Cir. 1996). The State of California has not created a protected interest in an administrative

appeal system in prison or the county jails. California Code of Regulations, title 15 sections

1073 and 3084.1 grant prisoners in the county jails and state prisons a purely procedural

right: the right to have an administrative appeal. The regulations simply require the

establishment of a procedural structure for reviewing prisoner complaints and set forth no

substantive standards; instead, they provide for flexible appeal time limits, see Cal. Code

Regs. tit. 15, § 3084.6, and, at most, that "no reprisal shall be taken against an inmate or

parolee for filing an appeal," id. § 3084.1(d). A provision that merely provides procedural

requirements, even if mandatory, cannot form the basis of a constitutionally cognizable

liberty interest. See Smith v. Noonan, 992 F.2d 987, 989 (9th Cir. 1993); see also Antonelli,

81 F.3d at 1430 (prison grievance procedure is procedural right that does not give rise to

protected liberty interest requiring procedural protections of Due Process Clause). McAfee

had no federal constitutional right to a properly functioning appeal system. An incorrect

decision on an administrative appeal or failure to handle it in a particular way therefore did

not amount to a violation of his right to due process. Warden Curry has no liability based on

his failure to find in McAfee's favor on the administrative appeal. 

Warden Curry also has no liability merely because he was in charge of the prison at

which the riot occurred. Lastly, McAfee's conclusory allegations that various persons acted

with a motive to cover up a hate crime and earlier misconduct do not state a claim upon

which relief may be granted. 

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CONCLUSION

For the foregoing reasons, 

1. Plaintiff has stated cognizable § 1983 claims (1) against defendants Days, Hill,

and Ingraham for a violation of his Eighth Amendment rights; (2) against defendant

Verdesoto for a due process violation for falsifying a report; and (3) against defendant J.

Rivero for due process violations in the disciplinary hearing over which he presided. All

other defendants and claims are dismissed. 

2. The clerk shall issue a summons and the United States Marshal shall serve,

without prepayment of fees, a copy of the complaint and this order upon the following

defendants, all of whom apparently work at the Correctional Training Facility in Soledad:

- correctional officer B. Hill

- correctional officer Ingraham

- correctional sergeant A. Days

- correctional sergeant G. Verdesoto

- correctional lieutenant J. Rivero

3. In order to expedite the resolution of this case, the following briefing schedule

for dispositive motions is set:

a. No later than May 7, 2010, defendants must file and serve a motion for

summary judgment or other dispositive motion. If defendants are of the opinion that this

case cannot be resolved by summary judgment, they must so inform the court prior to the

date the motion is due.

b. Plaintiff's opposition to the summary judgment or other dispositive

motion must be filed with the court and served upon defendant no later than June 11, 2010. 

Plaintiff must bear in mind the following notice and warning regarding summary judgment as

he prepares his opposition to any summary judgment motion:

The defendants may make a motion for summary judgment by which they seek

to have your case dismissed. A motion for summary judgment under Rule 56

of the Federal Rules of Civil Procedure will, if granted, end your case.

Rule 56 tells you what you must do in order to oppose a motion for

summary judgment. Generally, summary judgment must be granted when

there is no genuine issue of material fact -- that is, if there is no real dispute

about any fact that would affect the result of your case, the party who asked for

summary judgment is entitled to judgment as a matter of law, which will end

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your case. When a party you are suing makes a motion for summary judgment

that is properly supported by declarations (or other sworn testimony), you

cannot simply rely on what your complaint says. Instead, you must set out

specific facts in declarations, depositions, answers to interrogatories, or

authenticated documents, as provided in Rule 56(e), that contradict the facts

shown in the defendants' declarations and documents and show that there is a

genuine issue of material fact for trial. If you do not submit your own evidence

in opposition, summary judgment, if appropriate, may be entered against you. 

If summary judgment is granted, your case will be dismissed and there will be

no trial. (See Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998). 

Plaintiff also should take note that defendants may file a motion to dismiss for failure to

exhaust administrative remedies instead of or in addition to a motion for summary judgment. 

A motion to dismiss for failure to exhaust administrative remedies under 42 U.S.C. §

1997e(a) will, if granted, result in the dismissal of the action. The plaintiff must “develop a

record” and present it in his opposition in order to dispute any “factual record” presented by

the defendants in their motion to dismiss. Wyatt v. Terhune, 315 F.3d 1108, 1120 n.14 (9th

Cir. 2003).

c. If defendants wish to file a reply brief, they must file and serve the reply

brief no later than June 25, 2010.

4. All communications by plaintiff with the court must be served on a defendant's

counsel by mailing a true copy of the document to defendant's counsel. The court may

disregard any document which a party files but fails to send a copy of to his opponent. Until

a defendant's counsel has been designated, plaintiff may mail a true copy of the document

directly to defendant, but once a defendant is represented by counsel, all documents must be

mailed to counsel rather than directly to that defendant. 

5. Discovery may be taken in accordance with the Federal Rules of Civil

Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local

Rule 16-1 is required before the parties may conduct discovery.

6. Plaintiff is responsible for prosecuting this case. Plaintiff must promptly keep

the court informed of any change of address and must comply with the court's orders in a

timely fashion. Failure to do so may result in the dismissal of this action for failure to

prosecute pursuant to Federal Rule of Civil Procedure 41(b). Plaintiff is cautioned that he

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must include the case name and case number for this case on any document he submits to this

court for consideration in this case. 

7. Any document plaintiff sends to the court for filing must be sent in an envelope

addressed to the clerk, rather than addressed to the undersigned, so that the materials will

reach the court file and be docketed.

IT IS SO ORDERED.

Dated: February 9, 2010 ______________________

 Marilyn Hall Patel

United States District Judge

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