Ferdinand Reynolds v. Calif Dept of Corrections Secretary

Filing 36

ORDER ACCEPTING REPORT RE: DEFENDANTS MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT AND ADOPTING, IN PART, FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE by Judge Michael W. Fitzgerald. IT IS THEREFORE ORD ERED that Defendant's motion to dismiss Plaintiff's phone privilege claim is GRANTED and Defendants motion to dismiss Plaintiff's deprivation of exercise and denial of access to personal hygiene products claims are DENIED. (See document for further details.) re Report and Recommendation (Issued) 29 . (sbou)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 FERDINAND REYNOLDS, Plaintiff, 18 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 19 Pursuant to 28 U.S.C. § 636, the Court has reviewed the motion to dismiss 11 12 13 14 15 16 17 v. ERIC JORDAN, WARDEN, Defendants. Case No. CV 16-02505-MWF (PJW) ORDER ACCEPTING REPORT RE: DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT AND ADOPTING, IN PART, FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE 20 Plaintiff’s First Amended Complaint, the records on file herein, and the Report and 21 Recommendation of the United States Magistrate Judge. Further, the time for filing 22 objections has expired and no objections have been made. The Court accepts the findings 23 of fact made by the Magistrate Judge in full, and adopts them as its own findings. 24 The Court also accepts the recommendations of the Magistrate Judge and adopts 25 them as the Court’s own conclusions — except to clarify the Magistrate Judge’s 26 recommendation as to Plaintiff’s claim that his rights were violated when Defendant 27 denied him phone privileges. The Magistrate Judge recommended that the motion to 28 dismiss be granted as to this claim, reasoning that Plaintiff does not have a constitutional -1- 1 right to use the phone. This reasoning is technically correct. In and of itself, the denial of 2 telephone privileges does not violate the Eighth Amendment, and thus the Court adopts 3 the recommendation. See Gonzalez v. Cate, No. CV 11-3196-GEB-EFB P, 2016 WL 4 4036722, at *7 (E.D. Cal. Jul. 28, 2016); Rodriguez v. Winn, No. CV 14-2139-TUC-JAS 5 (JR), 2016 WL 3353954, at *5 (D. Ariz. Jan. 28, 2016), report and recommendation 6 adopted sub nom. Rodriguez v. Shartle, No. CV 14-2139-TUC (JAS), 2016 WL 3194653 7 (D. Ariz. June 9, 2016) (stating that “depriving a prisoner of phone calls and visits for a 8 year does not violate the Eighth Amendment”) (citing Overton v. Bazzetta, 539 U.S. 126, 9 136–37 (2003) (two-year ban on visits to inmates who had committed two or more 10 substance-abuse violations does not violate the Eighth Amendment)); Clark v. Plummer, 11 No. C 95-0046 CAL, 1995 WL 317015, at *2 (N.D. Cal. May 18, 1995) (“Courts have 12 held that even a total denial of telephone access for convicted prisoners is not cruel and 13 unusual punishment under the Eighth Amendment.”). 14 However, in Valdez v. Rosenbaum, 302 F.3d 1039, 1048–49 (9th Cir. 2002), the 15 Ninth Circuit held that prisoners do have a right under the First Amendment “to 16 communicate with persons outside prison walls” and characterized telephone calls as “a 17 means of exercising this right.” Id. at 1048 (emphasis in original). The Ninth Circuit 18 went on to endorse the possibility that restrictions on telephone usage might 19 impermissibly impinge on the prisoner’s First Amendment right to communicate. Id. at 20 1048–49. Construing the allegations liberally, as the Court is required to do for a plaintiff 21 acting in pro se, the Complaint could be read to raise a speech issue under the First 22 Amendment. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (explaining that a pro se 23 complaint is “to be liberally construed . . . and however inartfully pleaded, must be held to 24 less stringent standards than formal pleadings drafter by lawyers”). Accordingly, to the 25 extent that Plaintiff here seeks to pursue a claim that the restriction on his phone privileges 26 violates his First Amendment right to communicate, he has alleged sufficient facts to 27 support such a claim at the motion to dismiss stage, and shall be allowed to proceed 28 thereon. -2- 1 IT IS THEREFORE ORDERED that Defendant’s motion to dismiss Plaintiff’s 2 phone privilege claim is GRANTED and Defendant’s motion to dismiss Plaintiff’s 3 deprivation of exercise and denial of access to personal hygiene products claims are 4 DENIED. 5 6 IT IS SO ORDERED. 7 8 9 Dated: August 1, 2017 MICHAEL W. FITZGERALD United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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