Jose Morales v. Mathew Cate ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 4 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE LUIS MORALES, No. 18-15009
Plaintiff-Appellant, D.C. No. 5:11-cv-03901-EJD
v.
MEMORANDUM*
MATTHEW CATE; G. D. LEWIS; P. T.
SMITH; R. BELL; CLARK E. DUCART,
Warden,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Argued and Submitted January 13, 2022
Pasadena, California
Before: WALLACE and FRIEDLAND, Circuit Judges, and LASNIK,** District
Judge.
Partial Concurrence and Partial Dissent by Judge WALLACE
Plaintiff Jose Luis Morales appeals from the district court’s order dismissing
his claims in a § 1983 action against officials of the Pelican Bay State Prison
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
(“PBSP”). We have jurisdiction under 28 U.S.C. § 1291. We affirm the district
court’s dismissal of Morales’s equal protection and due process claims. We vacate
the judgment on Morales’s Eighth Amendment claim and remand with instructions
to grant leave to amend.
1. Morales alleges that the district court improperly dismissed, on claim
preclusion grounds, his equal protection claim for damages under § 1983. Morales
does not dispute that this claim meets the elements of claim preclusion under
California law. Instead, he argues that California recognizes three exceptions to
claim preclusion and that those exceptions apply here. We disagree.
First, Morales contends that because damages were not an available remedy
in his state habeas proceedings, he should be allowed to seek damages in a
subsequent § 1983 action. This argument for a “limited proceedings” exception is
foreclosed by our decisions in Gonzales v. California Department of Corrections,
739 F.3d 1226 (9th Cir. 2014), and Furnace v. Giurbino, 838 F.3d 1019 (9th Cir.
2016). In those cases, we squarely held that a California habeas judgment has
claim preclusive effect on a subsequent civil action for damages. Gonzales, 739
F.3d at 1231-32; Furnace, 838 F.3d at 1025. We rejected as “irrelevant” the fact
that a plaintiff “could not have obtained damages in his prior habeas action.”
Furnace, 838 F.3d at 1025; Gonzales, 739 F.3d at 1232. Morales attempts to
distinguish Gonzales and Furnace by pointing out that the petitioners in those
2
cases lost in their state habeas proceedings, whereas here, Morales won his state
habeas case and now seeks only an additional remedy for the acknowledged
violation. But this purported distinction lacks support in the caselaw: The
reasoning in neither Gonzales nor Furnace suggests that the application of
California’s claim preclusion rule turns on whether the petitioner prevailed in the
prior state habeas proceeding.
Second, Morales relies on California’s declaratory relief exception to claim
preclusion, which “carves out an exception to the bar of res judicata only where a
plaintiff’s initial action seeks purely declaratory relief.” Mycogen Corp. v.
Monsanto, 51 P.3d 297, 302 (Cal. 2002). We decline to read Morales’s state
habeas petition as requesting only declaratory relief. California’s pre-printed
habeas forms do not include a question asking the petitioner to specify a form of
relief. Morales filled out this form, including the section titled “Grounds for
Relief,” and attached his prison grievance, in which he had requested that prison
officials provide him access to outdoor recreation time. The state habeas court
granted his petition and issued an order enjoining prison officials from denying
him privileges based on his ethnicity and requiring instead that he be individually
validated as a member or associate of a gang before any such restrictions were
imposed. Morales has not provided a plausible theory explaining why he would
have sought only declaratory relief, and we conclude that the better reading is that
3
the state habeas court granted him the injunctive relief that he requested.
Third, Morales argues that this case presents the “rare circumstances” in
which “a final judgment may be denied claim preclusive effect when to do so
would result in manifest injustice.” F.E.V. v. City of Anaheim, 223 Cal. Rptr. 3d
213, 216 (Ct. App. 2017). But Gonzales and Furnace make clear that California
has made a deliberate policy choice to afford claim-preclusive effect to habeas
judgments and bar subsequent suits for damages. See, e.g., Gonzales, 739 F.3d at
1231-32. We would undermine that policy choice if it applied the manifest
injustice exception here.
2. Next, Morales argues that the district court erred in dismissing his due
process claim alleging that Defendant Bell denied Morales an individualized
hearing before subjecting him to lockdown conditions. Even if due process did
require such an individualized hearing, Defendant Bell is entitled to qualified
immunity because he did not “violate clearly established statutory or constitutional
rights of which a reasonable person would have known.”1 Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). In Hayward v. Procunier, 629 F.2d 599, 603 (9th Cir.
1980), we held that due process does not require prison officials to provide
1
We reject Morales’s argument that Defendant Bell waived his qualified
immunity defense. Defendant Bell raised qualified immunity as soon as it became
clear that he was the target of the due process claim—i.e., after Morales amended
his complaint to clarify which defendants denied him the individualized hearing.
Therefore, the defense was timely raised.
4
prisoners with notice and a hearing before imposing a five-month lockdown like
the one at issue here. We provided two bases for its holding. First, we concluded
that the prisoners had not asserted a cognizable liberty interest. Id. at 601-02.
Second, we concluded that due process does not require an individualized hearing
when prisoners seek to challenge “a rule change of general applicability affecting
an entire class of prisoners.” Id. at 602-03 (quoting Johnson v. Anderson, 370 F.
Supp. 1373, 1382 (D. Del. 1974)).
Morales argues that Hayward is no longer good law. To be sure, Hayward’s
methodology for analyzing whether a plaintiff has asserted a cognizable liberty
interest was subsequently undermined by the Supreme Court’s decision in Sandin
v. Conner, 515 U.S. 472 (1995). But Sandin did not address the second,
independent basis for Hayward’s holding. Without a case explicitly overruling
that aspect of Hayward’s reasoning, Defendant Bell’s conduct cannot be said to
have violated any clearly established right, and the district court properly
dismissed Morales’s due process claim on qualified immunity grounds.
3. Finally, Morales argues that the district court erred in dismissing his
Eighth Amendment claim. In his Amended Complaint, Morales argued that by
virtue of his continuous lockdown, he was deprived of outdoor exercise time and
access to basic hygiene supplies. We have previously held that these types of
deprivations can violate the Eighth Amendment. Keenan v. Hall, 83 F.3d 1083,
5
1089-91 (9th Cir. 1996) (noting that “[d]eprivation of outdoor exercise violates the
Eighth Amendment rights of inmates confined to continuous and long-term
segregation” and that “[i]ndigent inmates have the right to personal hygiene
supplies such as toothbrushes and soap”).
The district court correctly determined, however, that Morales failed to
allege the element of “deliberate indifference” with enough specificity to survive
dismissal. The Amended Complaint alleged:
At plaintiff’s annual review, he appeared before Captain Bell. Plaintiff
asked Bell why he was placed on lockdown if he had been disciplinary [sic]
free. Bell responded that he could [do] what he wanted and did not care
what the courts have said when plaintiff attempted to cite precedent to make
his point of being deprived unconstitutionally of rights and privileges. Bell
decided to continue to house plaintiff on B-facility.
Although this allegation, if true, establishes Defendant Bell’s subjective awareness
and conscious disregard of at least some of Morales’s allegations, it is not clear
from the face of the Amended Complaint whether Defendant Bell was specifically
aware of the Eighth Amendment deprivations themselves (or only, for example, of
the equal protection violation or the alleged due process violation). Accordingly,
the district court did not err in concluding that Morales failed to state an Eighth
Amendment claim.
We conclude, however, that the district court erred in failing to grant
Morales leave to amend. “[D]ismissal of a pro se complaint without leave to
amend is proper only if it is clear that the deficiencies cannot be cured by
6
amendment or after the pro se litigant is given an opportunity to amend.” Flowers
v. First Hawaiian Bank, 295 F.3d 966, 976 (9th Cir. 2002) (citing Lucas v. Dep’t of
Corr., 66 F.3d 245, 248-49 (9th Cir. 1995)). The record makes clear that
amendment would not be futile in this case, because in earlier filings Morales did
allege that Bell had awareness of the lockdown conditions, including the
deprivations of outdoor exercise time and basic hygiene materials. To the extent
that the district court relied on Morales’s purported delay in asserting the claim, the
district court erred. Contrary to the district court’s indication, Morales did not
assert this claim for the first time in his opposition to the motion to dismiss.
Rather, in his original complaint, Morales asked the district court to take judicial
notice of his state habeas records, which he attached in full and which explicitly
alleged an Eighth Amendment violation. Accordingly, Morales should have been
given leave to cure the deficiency in his allegation of deliberate indifference.
We affirm the district court’s dismissal of Morales’s equal protection and
due process claims. We vacate the judgment on Morales’s Eighth Amendment
claim and remand to the district court with instructions to grant Morales leave to
amend that claim.
AFFIRMED in part, VACATED in part, and REMANDED. Each party
shall bear its own costs.
7
FILED
FEB 4 2022
Morales v. Cate, Case No. 18-15009 MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
WALLACE, Circuit Judge, concurring in part and dissenting in part:
I concur with the majority’s decision affirming the district court’s
dismissal of Morales’s equal protection and due process claims. I
disagree, however, with the majority’s decision vacating the judgment on
Morales’s Eighth Amendment claim and remanding to the district court
with instructions to grant Morales leave to amend.
Morales did not request leave to amend in his opening or reply
briefs. Morales thus forfeited this issue on appeal because we do “not
ordinarily consider matters on appeal that are not specifically and
distinctly raised and argued in appellant’s opening brief.” Young v.
Hawaii, 992 F.3d 765, 780 (9th Cir. 2021) (citation omitted); see also
Frank v. Schultz, 808 F.3d 762, 763 n.3 (9th Cir. 2015) (“[I]ssues which
are not specifically and distinctly argued and raised in a party’s opening
brief are waived”) (citation omitted).
Therefore, I would affirm the district court’s dismissal of Morales’s
Eighth Amendment claim and would not consider whether the district
court erred by not granting Morales leave to amend.