Sing v. Corrections Corporation of America et al

Filing 10

ORDER that Plaintiff's Second Amended Complaint (Doc. 9) and this action are dismissed for failure to state a claim, and the Clerk of Court must enter judgment accordingly. 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). 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 G Murray Snow on 10/19/12. (DMT)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Cedric Ah Sing,
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Plaintiff,
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vs.
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Corrections Corp. of America, et al.,
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Defendants.
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No. CV 12-0379-PHX-GMS (MEA)
ORDER

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Plaintiff Cedric Ah Sing, who is a Hawaiian inmate confined in the Saguaro

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Correctional Center (SCC), a Corrections Corporation of American (CCA) facility, in Eloy,

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Arizona, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983, which the Court

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dismissed for failure to state a claim with leave to amend. (Doc. 1, 5.) Plaintiff filed a First

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Amended Complaint, which the Court also dismissed for failure to state a claim with leave

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to amend. (Doc. 7, 8.) Plaintiff has filed a Second Amended Complaint. (Doc. 9.) The

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Court will dismiss the Second Amended Complaint for failure to state a claim 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. But as the

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United States Court of Appeals for the Ninth Circuit has instructed, courts must “continue

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to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A

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“complaint [filed by a pro se prisoner] ‘must be held to less stringent standards than formal

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pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per

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curiam)).

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II.

Second Amended Complaint

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Plaintiff alleges three counts for violation of his right to receive mail, his right to

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petition the courts for redress of grievances, and his “Seventh Amendment right to sue.”

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Plaintiff sues SCC employees Assistant Warden Jody Bradley and Mail Room Officer C.

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Robertson. Plaintiff seeks declaratory, injunctive, compensatory, and punitive relief.

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Plaintiff alleges the following facts: on September 27, 2011, Plaintiff filed a Racketeer

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Influenced and Corrupt Organization Act (RICO) case against various CCA staff1 and wrote

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As discussed below, the RICO case was actually filed by another inmate and was
dismissed for failure to state a claim.
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to the Hawaii Department of the Auditor requesting a copy of a publicly available audit

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report concerning incarceration of Hawaiian inmates by CCA in Arizona. (Doc. 9 at 3, 5.)

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On January 13, 2012, a copy of the audit report arrived in the mail for Plaintiff, but

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Robertson flagged it as posing a threat to safety and security of SCC. Robertson showed the

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audit report to Bradley and the audit report was confiscated and later destroyed, rather than

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being returned to the sender as provided in SCC rules. Plaintiff describes the copy of the

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government report as “privileged” and constituting legal mail.

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Plaintiff contends that his mail, i.e., the copy of the audit report, was confiscated and

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destroyed because it contained unflattering information about CCA and its treatment of

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Hawaiian inmates and not because it posed a threat to the security and orderly operation of

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the institution. Plaintiff also contends that Bradley confiscated and destroyed the audit report

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sent to Plaintiff because Bradley knew that Plaintiff had named him as a defendant in the

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RICO suit and wanted to prevent use of the report as evidence in the RICO case.

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III.

Failure to State a Claim

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A plaintiff may seek relief for violations of his federal constitutional or statutory rights

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under 42 U.S.C. § 1983. To state a claim under § 1983, a plaintiff must allege facts

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supporting that (1) the conduct about which he complains was committed by a person acting

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under the color of state law and (2) the conduct deprived him of a federal constitutional or

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statutory right. Wood v. Ostrander, 879 F.2d 583, 587 (9th Cir. 1989). In addition, a

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plaintiff must allege that he suffered a specific injury as a result of the conduct of a particular

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defendant and he must allege an affirmative link between the injury and the conduct of that

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defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).

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A.

Count I

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Plaintiff designates Count I as a claim for violation of his First Amendment right to

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receive mail and publications. He again asserts that the report was “privileged” as legal mail.

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Inmates retain First Amendment rights not inconsistent with their status as prisoners or with

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legitimate penological objectives of the corrections system. See Shaw v. Murphy, 532 U.S.

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223, 231 (2001); Clement v. California Dep’t of Corr., 364 F.3d 1148, 1151 (9th Cir. 2004).
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Under the First Amendment, mail from an inmate’s attorney, or prospective attorney,

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constitutes “legal mail” that, when appropriately labeled, is entitled to greater protection than

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other mail. See Wolff v. McDonnell, 418 U.S. 539, 576 (1974) (stating that legal mail must

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be specifically marked as originating from an attorney). However, mail from a public

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agency, and not from a particular attorney, does not constitute “legal mail” entitled to greater

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First Amendment protections. See Grigsby v. Horel, 341 Fed. Appx. 314, 314-15 (9th Cir.

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2009); Jenkins v. Huntley, 235 Fed. Appx. 374, 376 (7th Cir. 2007) (letter from Illinois

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Attorney Registration and Disciplinary Commission was not legal mail where inmate was

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not represented or seeking representation by the Commission); Kaufman v. McCaughtry, 419

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F.3d 678, 685-86 (7th Cir. 2005) (mail from Department of Justice, nonprofit civil liberties

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organization, and other legally oriented entities did not constitute legal mail where inmate

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was not represented by or seeking representation by attorney with sending organization);

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Sallier v. Brooks, 343 F.3d 868, 875-76 (6th Cir. 2003) (mail from the American Bar

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Association and from various county clerks and register of deeds did not implicate inmate’s

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First Amendment legal mail rights). Accordingly, the copy of the publicly-available report

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from the Hawaii Auditor did not constitute legal mail entitled to enhanced protection.

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Prison officials may restrict inmate First Amendment rights with respect to non-legal

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mail if such restrictions are reasonably related to legitimate penological interests and an

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inmate is not deprived of all means of expression. Valdez v. Rosenbaum, 302 F.3d 1039,

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1048 (9th Cir. 2002) (citing Turner v. Safley, 482 U.S. 78, 92 (1986)). Thus, a prisoner’s

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right to receive publications from outside the prison may be restricted. See Beard v. Banks,

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548 U.S. 521, 531-33 (2006). That is, “[s]ome content regulation is permissible in the prison

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context.” McCabe v. Arave, 827 F.2d 634, 638 (9th Cir. 1987); see also Thornburgh, 490

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U.S. at 415-16. For example, restrictions on materials containing role-playing or similar

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fantasy games have been upheld in light of security concerns. See Bahrampour v. Lambert,

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356 F.3d 969, 975-76 (9th Cir. 2004). Restrictions on the receipt of sexually explicit

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materials have also been upheld. Id. at 976; Mauro v. Arpaio, 188 F.3d 1054, 1060 (9th Cir.

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1999) (en banc). Similarly, restrictions on the receipt of publication that pose a threat to the
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safety, security, and orderly operation of a prison have been upheld because they are

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“reasonably related to legitimate penological interests.” Turner, 482 U.S. at 89; see

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Thornburgh, 490 U.S. at 413 (the Turner standard applies to restrictions on incoming mail);

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Van den Bosch v. Raemisch, 658 F.3d 778, 789 (7th Cir. 2011).

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In this case, Plaintiff asserts that his First Amendment rights were violated by the

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confiscation of the Hawaii Auditor’s report, which reflected adversely on CCA and its

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personnel. Prison officials could reasonably conclude that the distribution of the report to

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Plaintiff in one of the facilities at issue in the report was likely to pose a threat to the safety,

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security, and orderly operation of the facility by exacerbating existing tensions between

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inmates and staff. See Van den Bosch, 658 F.3d at 789 (prison officials’ refusal to deliver

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copies of newsletter containing article written by inmate about the prison system was

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rationally related to officials’ legitimate penological interests in maintaining prison security

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and discipline); see also Thornburgh, 490 U.S. at 412-13 (“The problem is not . . . in the

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individual reading the materials in most cases. The problem is in the material getting into

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the prison.”).

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Plaintiff’s assertion that Defendants confiscated the copy of the report mailed to him

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to obstruct his RICO suit is patently contradicted by the record in that case. While Plaintiff

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asserts that he filed a RICO case against CCA and its personnel on September 27, 2011, the

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case to which he refers was filed by another Hawaiian inmate, Edmund Abordo. See Abordo

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v. Corrections Corp. of America, No. CV11-1367-PHX-FJM (D. Ariz.). On September 27,

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2011, Abordo filed an amended complaint in which Abordo asserted RICO claims and

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purported to add inmate Ah Sing as an additional plaintiff. Id., doc. 45. Inmate Ah Sing was

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dismissed as a plaintiff from that case and that case was subsequently dismissed for failure

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to state a claim after Abordo’s subsequent unsuccessful attempt to file an amended complaint

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that stated an actionable claim. Id., doc. 53. Further, although Bradley was named as a

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defendant in that case, Bradley was never served with or appeared in the case. Finally,

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Plaintiff fails to allege any facts to support that the audit report was confiscated to impede

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any litigation Plaintiff had filed.
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In short, Plaintiff fails to plausibly allege facts to support that the copy of the audit

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report mailed to him was confiscated for any reason other than the safety and security of the

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institution. Plaintiff accordingly fails to state a claim for violation of his First Amendment

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rights.

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B.

Count II (in part)

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Plaintiff designates Count II as a claim for denial of access to the courts. The right

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of meaningful access to the courts prohibits state officials from actively interfering with an

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inmate’s attempt to prepare or file legal documents. Lewis v. Casey, 518 U.S. 343, 350

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(1996). That right, however, only encompasses the ability to bring petitions or complaints

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to court and not to discover or even effectively litigate such claims once filed with a court.

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Id. at 354; see also Cornett v. Donovan , 51 F.3d 894, 899 (9th Cir. 1995) (“The right of

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access is designed to ensure that a habeas petition or civil rights complaint of a person in

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state custody will reach a court for consideration.”) The right “guarantees no particular

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methodology but rather, the conferral of a capability – the capability of bringing

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contemplated challenges to sentences or conditions of confinement before the courts.”

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Lewis, 518 U.S. at 356. The plaintiff must allege facts to support that he was actually

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injured. An “actual injury” is “actual prejudice with respect to contemplated or existing

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litigation, such as the inability to meet a filing deadline or present a claim.” Lewis, 518 U.S.

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at 348. In other words, a plaintiff must allege facts to support that a defendant’s conduct

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prevented him from bringing to court a non-frivolous claim that he wished to present. Id. at

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351-53. A plaintiff “must identify a nonfrivolous, arguable underlying claim,” and this

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underlying claim “must be described in the complaint.” Christopher v. Harbury, 536 U.S.

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403, 414-15 (2002).

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Plaintiff contends that he decided not to pursue his RICO case after the report was

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confiscated and destroyed. However, as discussed above, Plaintiff did not file that case, nor

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has Plaintiff set forth facts to support that any nonfrivolous claim was asserted in that case.

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As noted above, that case was dismissed for failure to state an actionable claim. Plaintiff

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otherwise fails to allege that he has suffered an actual injury. Accordingly, Plaintiff fails to
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state a claim for denial of access to the court.

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C.

Count III (in part)

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Plaintiff designates Count III as a claim for violation of his Seventh Amendment

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rights. Specifically, he asserts that the confiscation of the report violated his Seventh

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Amendment “right to sue.”

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The Seventh Amendment provides that “no fact tried by a jury shall be otherwise re-

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examined in any Court of the United States, than according to the rules of the common law.”

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U.S. Const. amend. VII. As explained by the Ninth Circuit, “[t]he Seventh Amendment ...

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guarantees a right to a jury trial for all ‘common-law causes of action, [and] actions brought

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to enforce statutory rights that are analogous to common-law causes of action ordinarily

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decided in English law courts in the late 18th century ....” GoPets Ltd. v. Hise, 657 F.3d

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1024, 1033 (9th Cir. 2011) (quoting Feltner v. Columbia Pictures Television, Inc., 523 U.S.

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340, 348 (1998)).

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Plaintiff fails to allege facts to support that the RICO action was analogous to a

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common-law cause of action, much less that a court re-examined a fact found by a jury in

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that case. As explained above, the RICO case was dismissed prior to service for failure to

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state a claim. The dismissal of a complaint for failure to state a claim does not violate the

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Seventh Amendment. Smith v. Kitchen, 156 F.3d 1025, 1029 (10th Cir. 1997) (dismissal of

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civil rights action for failure to state a claim did not violate the plaintiff’s right to a jury trial

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under the Seventh Amendment); cf. Washington v. City of Los Angeles,442 Fed. Appx. 522,

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524 (9th Cir. 2011) (a summary judgment proceeding did not deprive losing party of its

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Seventh Amendment right to a jury trial). Plaintiff fails to state a claim for violation of his

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Seventh Amendment rights based on the dismissal of the RICO action.

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D.

Retaliation

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Finally, although not so designated, in Counts II and III, Plaintiff asserts that the audit

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report was confiscated in retaliation for Plaintiff having previously filed cases against

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Bradley and CCA. As the Court previously informed Plaintiff, a viable claim of First

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Amendment retaliation contains five basic elements: (1) an assertion that a state actor took
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some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct,

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and that such action (4) chilled the inmate’s exercise of his First Amendment rights (or that

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the inmate suffered more than minimal harm) and (5) did not reasonably advance a legitimate

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correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); see also Hines

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v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997) (retaliation claims requires an inmate to show

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(1) that the prison official acted in retaliation for the exercise of a constitutionally protected

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right, and (2) that the action “advanced no legitimate penological interest”). The plaintiff has

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the burden of demonstrating that his exercise of his First Amendment rights was a substantial

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or motivating factor behind the defendants’ conduct. Mt. Healthy City School Dist. Bd. of

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Educ. v. Doyle, 429 U.S. 274, 287 (1977); Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310,

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1314 (9th Cir. 1989).

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Plaintiff asserts that the audit report was withheld from him in retaliation for filing the

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RICO case. However, as discussed above, the RICO suit was filed by a different inmate and

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not by Plaintiff. Moreover, no defendant in that case was ever ordered served or ever

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appeared in that case. Further, Plaintiff fails to allege any facts to support that Bradley or

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Robertson knew that Plaintiff had filed the earlier RICO case, much less facts to support that

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his involvement in that case was motivating factor in the confiscation of the audit report.

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Plaintiff thus fails to state a claim for retaliation.

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IV.

Dismissal without Leave to Amend

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Because Plaintiff has failed to state a claim in his Second Amended Complaint, the

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Court will dismiss his Second Amended Complaint. “Leave to amend need not be given if

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a complaint, as amended, is subject to dismissal.” Moore v. Kayport Package Express, Inc.,

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885 F.2d 531, 538 (9th Cir. 1989). The Court’s discretion to deny leave to amend is

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particularly broad where Plaintiff has previously been permitted to amend his complaint.

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Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th Cir. 1996). Repeated

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failure to cure deficiencies is one of the factors to be considered in deciding whether justice

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requires granting leave to amend. Moore, 885 F.2d at 538.

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Plaintiff has made three efforts at crafting a viable complaint and appears unable to
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do so despite specific instructions from the Court. The Court finds that further opportunities

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to amend would be futile. Therefore, the Court, in its discretion, will dismiss Plaintiff’s

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Second Amended Complaint without leave to amend.

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IT IS ORDERED:

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(1)

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Plaintiff’s Second Amended Complaint (Doc. 9) 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).
(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 19th day of October, 2012.

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