Wittkamper v. Ryan et al

Filing 7

ORDER granting 5 Motion for Leave to Proceed in forma pauperis. The Complaint (Doc. 1) is dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915A(b)(1), and the Clerk of Court must enter judgment accordingly. The Clerk of Cour t 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 Robert C Broomfield on 2/7/12.(DMT)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Aaron E. Wittkamper,
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 11-8169-PCT-RCB (MEA)
ORDER

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Plaintiff Aaron E. Wittkamper, who is confined in the Arizona State Prison Complex-

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Douglas, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an

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Application to Proceed In Forma Pauperis. In a November 30, 2011 Order, the Court denied

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the Application to Proceed with leave to refile. On December 16, 2011, Plaintiff filed a new

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Application to Proceed. The Court will dismiss the action.

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I.

Application to Proceed In Forma Pauperis and Filing Fee

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Plaintiff’s new Application to Proceed In Forma Pauperis will be granted. 28 U.S.C.

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§ 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1).

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The Court will assess an initial partial filing fee of $26.40. The remainder of the fee will be

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collected monthly in payments of 20% of the previous month’s income each time the amount

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in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a separate

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Order requiring the appropriate government agency to collect and forward the fees according

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to the statutory formula.

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II.

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). Plaintiff’s Complaint will be dismissed for

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failure to state a claim, without leave to amend because the defects cannot be corrected.

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III.

Complaint

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Plaintiff names the following Defendants in the Complaint: Arizona Department of

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Corrections Director Charles L. Ryan; Warden Ernie Garcia; Assistant Warden Heather

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Pruett; and C.O. II Mail and Property Officer J. Estrada.

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Plaintiff raise three claims for relief. In Count I, Plaintiff claims his Fourteenth

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Amendment rights were violated when Defendant Estrada inspected and accepted Plaintiff’s

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out-going legal mail and then failed to log Plaintiff’s mail in the out-going mail log. Plaintiff

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further claims that his mail “was lost by C.O. II J. Estrada for twenty-two days.”

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In Count II, Plaintiff claims that Defendant Estrada’s actions denied him access to the

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courts because his legal document was filed with the court “out of the 20 day time frame”

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and his case was dismissed with prejudice.

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In Count III, Plaintiff alleges that Defendant Estrada inspected his legal mail while

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Plaintiff was present and had Plaintiff seal the envelope in her presence. Plaintiff claims that

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when “the receiving party finally re[ceived] the legal documents 22 days later, the envelope

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was taped back closed and upon opening it . . . the documents were not in order and some of

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the documents were not in the envelope.” Plaintiff claims that this shows his legal mail was

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reopened and searched outside of his presence.
Plaintiff seeks three million dollars in damages.

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...

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...
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IV.

Failure to State a Claim

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A. Defendants Ryan, Garcia, and Pruett

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To state a valid claim under § 1983, plaintiffs must allege that they suffered a specific

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injury as a result of specific conduct of a defendant and show an affirmative link between the

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injury and the conduct of that defendant. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377

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(1976). There is no respondeat superior liability under § 1983, and therefore, a defendant’s

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position as the supervisor of persons who allegedly violated Plaintiff’s constitutional rights

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does not impose liability. Monell v. New York City Department of Social Services, 436 U.S.

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658, 691-92 (1978); Hamilton v. Endell, 981 F.2d 1062, 1067 (9th Cir. 1992); Taylor v. List,

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880 F.2d 1040, 1045 (9th Cir. 1989). “Because vicarious liability is inapplicable to Bivens

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and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the

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official’s own individual actions, has violated the Constitution.” Iqbal, 129 S. Ct. at 1948.

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Plaintiff has not alleged that Defendants Ryan, Garcia, or Pruett personally

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participated in a deprivation of Plaintiff’s constitutional rights, were aware of a deprivation

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and failed to act, or formed policies that resulted in Plaintiff’s injuries. In fact, Plaintiff has

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made no allegations against these Defendants. The Court will therefore dismiss without

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prejudice Defendants Ryan, Garcia, and Pruett.

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B.

Counts I and III

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Plaintiff has not alleged facts in Count I sufficient to state a claim for interference with

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his legal mail. Plaintiff shows only that Defendant Estrada properly inspected the mail in his

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presence but then negligently failed to log his mail and subsequently lost it. These facts do

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not rise to the level of a constitutional violation because a single instance of negligent

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behavior is not actionable. “[T]he Due Process Clause [of the Fourteenth Amendment] is

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simply not implicated by a negligent act of an official causing unintended loss or injury to

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life, liberty, or property." Daniels v. Williams, 474 U.S. 327, 328 (1986); see also, Stevenson

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v. Koskey, 877 F.2d 1435, 1441 (9th Cir. 1989) (a single instance of inadvertent opening of

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legal mail outside an inmate’s presence, while not to be condoned, is not actionable as a

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constitutional violation).
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Similarly, Plaintiff’s allegations in Count III are insufficient to state a claim. Plaintiff

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alleges that he witnessed Defendant Estrada search his legal mail and then sealed the

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envelope, and that when the envelope was delivered it had been opened and documents were

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missing. Nothing in this line of facts suggests that Defendant Estrada opened Plaintiff’s mail

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after he sealed it. Any number of mishaps might have plagued Plaintiff’s envelope in the

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course of its travels through the mail system.

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The Court will dismiss Counts I and III for failure to state a claim.

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C.

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In Count II, Plaintiff claims that because of Defendant Estrada’s actions, he was

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denied access to the courts. Again, Plaintiff has shown only that Defendant Estrada was

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negligent in failing to log his outgoing legal mail. This does not state a claim under § 1983.

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Hines v. Boothe, 841 F.2d 623, 624 (5th Cir. 1988) (“Negligence does not state a claim under

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section 1983 and the facts alleged by [plaintiff] with regard to the loss of his legal mail do

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not constitute more than negligence.”); Silva v. DiVittorio, 658 F.3d 1090, 1103 (9th Cir.

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2011) (the right to access to the courts also includes the ability to litigate claims “without

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active interference by prison officials”) (emphasis in original).
Accordingly, the Court will dismiss Count II for failure to state a claim.

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Count II

V.

Dismissal without Leave to Amend

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Where amendment would be futile, there is no reason to prolong litigation by allowing

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further amendments. Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1039 (9th Cir.2002);

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Klamath-Lake Pharmaceutical Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293

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(9th Cir.1983) (futile amendments should not be permitted). The Court finds that Plaintiff’s

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claims cannot be cured by amendment and will therefore dismiss the Complaint without

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leave to amend.

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IT IS ORDERED:

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(1)

Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 5) is granted.

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(2)

As required by the accompanying Order to the appropriate government agency,

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Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee of $26.40.
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(3)

The Complaint (Doc. 1) is dismissed for failure to state a claim pursuant to 28

U.S.C. § 1915A(b)(1), and the Clerk of Court must enter judgment accordingly.
(4)

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).
(5)

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 7th day of February, 2012.

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