Nordstrom v. Ryan et al

Filing 7

ORDER - Plaintiff's First Amended Complaint (Doc. 5) and this action are dismissed for failure to state a claim, and the Clerk of Court must enter judgment. The Clerk of Court must make an entry on the docket stating that the dismissal for f ailure to state a claim may count as a "strike" under 28 U.S.C. § 1915(g). The docket shall reflect that the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of this decision would not be taken in good faith. Signed by Judge David G Campbell on 3/26/12. (DMT)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Scott Douglas Nordstrom,

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Plaintiff,

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vs.

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Charles L. Ryan, et al.,

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Defendants.

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No. CV 11-2344-PHX-DGC (MEA)
ORDER

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On November 29, 2011, Plaintiff Scott Douglas Nordstrom, who is confined in the
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Arizona State Prison Complex-Eyman, filed a pro se civil rights Complaint pursuant to 42
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U.S.C. § 1983 and paid the filing fee. In a January 18, 2012 Order, the Court dismissed the
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Complaint because Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days to
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file an amended complaint that cured the deficiencies identified in the Order.
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On February 10, 2012, Plaintiff filed his First Amended Complaint (Doc. 5). The
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Court will dismiss the First Amended Complaint and this action.
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I.

Statutory Screening of Prisoner Complaints

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The Court is required to screen complaints brought by prisoners seeking relief against
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a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C.
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§ 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised
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claims that are legally frivolous or malicious, that fail to state a claim upon which relief may
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be granted, or that seek monetary relief from a defendant who is immune from such relief.
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28 U.S.C. § 1915A(b)(1), (2).
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A pleading must contain a “short and plain statement of the claim showing that the

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pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does not

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demand detailed factual allegations, “it demands more than an unadorned, the-defendant-

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unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

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“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements, do not suffice.” Id.

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“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a

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claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content

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that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for

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relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial

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experience and common sense.” Id. at 1950. Thus, although a plaintiff’s specific factual

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allegations may be consistent with a constitutional claim, a court must assess whether there

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are other “more likely explanations” for a defendant’s conduct. Id. at 1951.

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But as the United States Court of Appeals for the Ninth Circuit has instructed, courts

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must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th

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Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent standards

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than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 U.S. 89,

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94 (2007) (per curiam)).

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If the Court determines that a pleading could be cured by the allegation of other facts,

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a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the

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action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). The Court

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should not, however, advise the litigant how to cure the defects. This type of advice “would

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undermine district judges’ role as impartial decisionmakers.” Pliler v. Ford, 542 U.S. 225,

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231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to decide whether the court was

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required to inform a litigant of deficiencies).

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II.

First Amended Complaint

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In his one-count First Amended Complaint, Plaintiff sues the following Defendants:

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Arizona Department of Corrections (“ADOC”) Director Charles L. Ryan, Warden A. Ramos,

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and Correctional Officer II F. Hawthorne.

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Plaintiff alleges that his First, Sixth, and Fourteenth Amendment rights were violated

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when Defendant Hawthorne read Plaintiff’s letter to his attorney even though that letter was

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marked as legal mail. Plaintiff claims that when it became obvious that Defendant

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Hawthorne was reading Plaintiff’s letter, rather than simply scanning it for contraband as

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required by ADOC policy, Plaintiff informed Defendant Hawthorne that he was prohibited

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from reading Plaintiff’s legal mail and Defendant Hawthorne responded that Plaintiff “was

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not in a position to tell [Defendant Hawthorne] how to do his job.”

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Plaintiff’s grievances and grievance appeals on the issue were denied. Plaintiff

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alleges that Defendant Ryan informed him that “staff are not prohibited from reading such

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documents to the extent necessary to establish the absence of contraband . . . and ensure the

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content of the mail is of legal subject matter.” Plaintiff makes no factual allegations against

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Defendant Ramos.

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Plaintiff finally claims that the reading of his legal mail to check for the presence of

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contraband violates his right to access to the courts, right to free speech, and right to

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communicate confidentially with his attorney.

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Plaintiff seeks declaratory and injunctive relief and money damages.
III.

Failure to State a Claim

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Outgoing legal mail sent by prisoners may only be opened in the presence of the

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sending inmate, whether the correspondence relates to criminal or civil matters. Ramos v.

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Lamm, 639 F.2d 559, 582 (10th Cir. 1980).

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To the extent that Plaintiff claims his right of access to the courts was violated by

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Defendant Hawthorne’s reading of Plaintiff’s legal mail in Plaintiff’s presence, Plaintiff has

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failed to allege that Defendant Hawthorne’s conduct resulted in an actual injury. As a matter

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of standing, for an access-to-courts claim, a plaintiff must show that he suffered an “actual
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injury” with respect to contemplated litigation. Lewis v. Casey, 518 U.S. 343, 349 (1996);

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Lewis v. Cook County Bd. of Com’rs, 6 Fed. Appx. 428, 430 (7th Cir. 2001) (plaintiff could

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not prevail when he did “not describe a single legal case or claim that was in any way

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thwarted because the mail room staff opened his legal mail.”). Plaintiff does not have a First

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Amendment right that prohibits a guard from opening his mail in his presence and reading

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it with an eye to determining if it advances illegal conduct. Stanley v. Vining, 602 F.3d 767,

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770 (6th Cir. 2010); Lavado v. Keohane, 992 F.2d 601, 609 (6th Cir. 1993) (“The law has

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not ‘established that . . . reading [properly marked legal mail] in inmates’ presence violated

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constitutional rights in and of itself.”).

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To the extent Plaintiff claims Defendant Hawthorne’s conduct violated his right to
counsel, Plaintiff has also failed to state a claim.
In order to state a § 1983 cognizable claim for deprivation of
right to counsel, there must be some allegation indicating an
interference with the prisoner’s relationship with counsel. In
order to state such a claim there must be something more than
an allegation that a guard ‘read’ his ‘legal mail’ in his presence
and that he was offended or believed this act to be a violation of
a state prison regulation.
Stanley, 602 F.3d at 770.

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Although Plaintiff alleges that Defendant Hawthorne’s actions interfered with his

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ability to communicate confidentially with his attorney, Plaintiff has not demonstrated how

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this one-time occurrence impacted the attorney-client relationship. Plaintiff also claims that

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Defendant Ryan has implemented a policy of allowing staff to read inmate’s legal mail, but

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Plaintiff has not alleged that his outgoing legal mail was read (rather than simply examined

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for contraband) on more than one occasion. This is insufficient to demonstrate a policy.

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Further, the written policy which allows staff to scan legal mail for contraband or illegal

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activity is consistent with First Amendment caselaw, as noted above. Accordingly, these

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allegations also fail to state a claim.

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Plaintiff has also failed to state a First Amendment claim for loss of free speech. “[A]

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prison inmate retains those First Amendment rights that are not inconsistent with his status

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as a prisoner or with the legitimate penological objectives of the corrections system.” Pell
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v. Procunier, 417 U.S. 817, 822 (1974); see also Clement v. Cal. Dep’t of Corr., 364 F.3d

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1148, 1151 (9th Cir. 2004) (per curiam). A regulation that impinges on First Amendment

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rights “is valid if it is reasonably related to legitimate penological interests.” Turner v.

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Safley, 482 U.S. 78, 79 (1987); see also Beard v. Banks, 548 F.3d 521, 528 (2006).

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Legitimate penological interests include “the preservation of internal order and discipline,

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the maintenance of institutional security against escape or unauthorized entry, and the

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rehabilitation of the prisoners.” Procunier v. Martinez, 416 U.S. 396, 412 (1974).

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As noted above, the reading of an inmate’s legal mail, in the inmate’s presence, to

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check for the presence of contraband or illegal activity is the type of regulation allowed for

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the purpose of maintaining institutional security.

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Plaintiff has failed to state a claim in the First Amended Complaint. The Court will

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therefore dismiss the First Amended Complaint.

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IV.

Dismissal without Leave to Amend

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“Leave to amend need not be given if a complaint, as amended, is subject to

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dismissal.” Moore v. Kayport Package Express, Inc., 885 F.2d 531, 538 (9th Cir. 1989). The

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Court’s discretion to deny leave to amend is particularly broad where Plaintiff has previously

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been permitted to amend his complaint. Sisseton-Wahpeton Sioux Tribe v. United States,

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90 F.3d 351, 355 (9th Cir. 1996). Repeated failure to cure deficiencies is one of the factors

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to be considered in deciding whether justice requires granting leave to amend. Moore, 885

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F.2d at 538.

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The Court finds that further opportunities to amend would be futile. Therefore, the

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Court, in its discretion, will dismiss Plaintiff’s First Amended Complaint without leave to

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amend.

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IT IS ORDERED:

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(1)

Plaintiff’s First Amended Complaint (Doc. 5) and this action are dismissed for

failure to state a claim, and the Clerk of Court must enter judgment accordingly.
(2)

The Clerk of Court must make an entry on the docket stating that the dismissal

for failure to state a claim may count as a “strike” under 28 U.S.C. § 1915(g).
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(3)

The docket shall reflect that the Court certifies, pursuant to 28 U.S.C.

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§ 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of this

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decision would not be taken in good faith.

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DATED this 26th day of March, 2012.

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