Zavala v. Rios et al

Filing 74

ORDER Denying Plaintiff's Objections 72 , signed by Magistrate Judge Michael J. Seng on 07/11/14. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RAUL SANCHEZ ZAVALA,

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Plaintiff,

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CASE NO. 1:09-cv-00679-MJS (PC)
ORDER DENYING PLAINTIFF’S
OBJECTIONS

v.
(ECF No. 72)
HECTOR RIOS, et al.,

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Defendants.

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I.

PROCEDURAL HISTORY
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

rights action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of

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Narcotics, 403 U.S. 388 (1971) and 28 U.S.C. § 1331.
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On August 15, 2013, the Court screened Plaintiff‟s seventh amended complaint

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and found that it stated a cognizable Fifth Amendment due process claim against

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Defendants A, B, and Gonzaga. (ECF No. 71.) The Court found that Plaintiff had failed

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to state any other claims against any other defendants; dismissed Defendants Capel,

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Silva, and the United States; and dismissed with prejudice Plaintiff‟s First Amendment

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free speech and Federal Tort Claims Act claims. (Id.)

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Before the Court are Plaintiff‟s objections to the Court‟s screening order (ECF No.

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72), which the Court construes as a motion for reconsideration.
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II.

PLAINTIFF’S SEVENTH AMENDED COMPLAINT

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The allegations in Plaintiff‟s seventh amended complaint occurred at United

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States Penitentiary in Atwater, California (“USP-Atwater”), where Plaintiff is currently

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housed.

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The complaint alleges violations of Plaintiff‟s rights under the First Amendment,
Fifth Amendment, and Federal Tort Claims Act. Plaintiff names the following individuals

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as defendants: 1) Hector Rios, former USP-Atwater Warden, 2) the United States, 3)
Defendant A, USP-Atwater mail room employee, 4) Defendant B, USP-Atwater mail

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room employee, 5) Gonzaga, USP-Atwater mail room supervisor, 6) Capel, correctional

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counselor for Plaintiff at USP-Atwater, and 7) Silva, correctional counselor for Plaintiff at

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USP-Atwater.

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Plaintiff‟s allegations may be summarized essentially as follows:
Legal mail related to Plaintiff‟s criminal appeal was rejected by Defendants A and

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B. Defendant Gonzaga informed Plaintiff that there was no record of Plaintiff‟s mail

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having been rejected by the prison, refused to accept Plaintiff‟s package authorization

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form, and informed Plaintiff that no authorization form was required for packages sent by

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an attorney, even though a package sent by Plaintiff‟s attorney had been rejected for

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lack of an authorization form. Plaintiff‟s criminal appeal ultimately was denied.

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Defendants Capel and Silva refused Plaintiff‟s request for an unmonitored phone

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line on which to speak to his attorney, and informed Plaintiff that the request should
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come directly from Plaintiff‟s attorney. Plaintiff was unable to speak with his attorney

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while his appellate briefs were drafted. As a result, the appellate record for his appeal

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was incomplete.

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III.

LEGAL STANDARDS

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1.

Motion for Reconsideration

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Federal Rules of Civil Procedure 60(b)(6) allows the Court to relieve a party from

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an order for any reason that justifies relief. Rule 60(b)(6) “is to be used sparingly as an

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equitable remedy to prevent manifest injustice and is to be utilized only where

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extraordinary circumstances” exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008)

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(internal quotations marks and citation omitted).

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“A motion for reconsideration should not be granted, absent highly unusual
circumstances, unless the district court is presented with newly discovered evidence,

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committed clear error, or if there is an intervening change in the controlling law,” Marlyn

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Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009).

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“A motion for reconsideration may not be used to raise arguments or present evidence

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for the first time when they could reasonably have been raised in earlier litigation.” Id.

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Moreover, “recapitulation of the cases and arguments considered by the court before

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rendering its original decision fails to carry the moving party's burden.” U.S. v. Westlands

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Water Dist., 134 F. Supp. 2d 1111, 1131 (9th Cir. 2001) (quoting Bermingham v. Sony

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Corp. of Am., Inc., 820 F. Supp. 834, 856-57 (D.N.J. 1992)). Similarly, Local Rule 230(j)

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requires that a party seeking reconsideration show that “new or different facts or

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circumstances are claimed to exist which did not exist or were not shown upon such

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prior motion, or what other grounds exist for the motion . . . .”

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First Amendment – Free Speech

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2.

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“[T]he constitutional rights that prisoners possess are more limited in scope than

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the constitutional rights held by individuals in society at large. In the First Amendment
context . . . some rights are simply inconsistent with the status of a prison or „with the

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

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223, 229 (2001) (quoting Pell v. Procunier, 417 U.S. 817, 822 (1974)). Thus, jail

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personnel may regulate speech if such restriction is reasonably related to legitimate

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penological interests and an inmate is not deprived of all means of expression. Valdez v.

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Rosenbaum, 302 F.3d 1039, 1048 (9th Cir. 2002) (citing Turner v. Safley, 482 U.S. 78,
92 (1986)).

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Based on the foregoing, the United States Constitution does not provide for an
unfettered right to use a telephone. Rather, to state a constitutional claim, a plaintiff must

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allege that the use of a phone is connected to another constitutional right, such as the

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right of free speech or access to the courts. Even then, a telephone is only one means

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for an inmate to exercise the extremely limited First Amendment right to communicate

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with persons outside the jail. Valdez, 302 F.3d at 1048. That same right may be met
through other means such as correspondence or personal visits.

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3.

Federal Tort Claims Act

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The Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671–2680, waives

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the sovereign immunity of the United States for certain torts committed by federal

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employees. FDIC v. Meyer, 510 U.S. 471, 475 (1994). The FTCA provides that district

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courts have exclusive jurisdiction over civil actions against the United States for money

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damages “for injury or loss of property, or personal injury or death caused by the

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negligent or wrongful act or omission of any employee of the [federal] Government while
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acting within the scope of his office or employment.” 28 U.S.C. § 1346(b)(1). The FTCA

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allows federal inmates to sue the United States for injuries sustained while incarcerated.

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28 U.S.C. § 2674.

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The United States is the only proper defendant in a suit brought pursuant to the
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FTCA. FDIC v. Craft, 157 F.3d 697, 706 (9th Cir. 1998); Kennedy v. U.S. Postal Serv.,

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145 F.3d 1077, 1078 (9th Cir. 1998). “A claim against [a federal agency] in its own name

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is not a claim against the United States.” Kennedy, 145 F.3d at 1078. Nor is an agency a

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proper defendant under the FTCA. Craft, 157 F.3d at 706 (citing Shelton v. U.S.

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Customs Serv., 565 F.2d 1140, 1141 (9th Cir. 1977)).

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Under the FTCA a claim must be filed with the appropriate federal agency within

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two years of its accrual and suit must be commenced within six months of the agency‟s
denial of the claim. 28 U.S.C. § 2401(b). This administrative exhaustion requirement is

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mandatory and jurisdictional. Valadez-Lopez v. Chertoff, 656 F.3d 851, 855 (9th Cir.

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2011) (quoting Brady v. United States, 211 F.3d 499, 502 (9th Cir. 2000)). Exhaustion

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must be affirmatively alleged in the complaint. Gillespie v. Civiletti, 629 F.2d 637, 640

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(9th Cir. 1980).
IV.

ANALYSIS

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A.

First Amendment Claim

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Plaintiff objects to the dismissal of his First Amendment free speech claim against

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Defendants Capel and Silva, and attempts to cure the deficiencies in his seventh

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amended complaint by alleging that his attorney did not want to speak on a monitored

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telephone line, that Defendants Capel and Silva denied his requests for a legal

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telephone call, and that Plaintiff did not have any other avenue for speaking with his

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attorney.
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Plaintiff‟s assertion that he had no other avenue for speaking with his attorney is

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new. Plaintiff was advised of the elements of a First Amendment free speech claim in the

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order screening his sixth amended complaint. (ECF No. 68 at 5.) The proper time for him

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to have made his allegations was in his seventh amended complaint, not in objections
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filed after that complaint was screened. See Marlyn Nutraceuticals, Inc., 571 F.3d at 880

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(“A motion for reconsideration may not be used to raise arguments or present evidence

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for the first time when they could reasonably have been raised in earlier litigation.”).

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In any event, Plaintiff‟s allegations do not state a First Amendment claim.

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Plaintiff‟s conclusory statement that he had no other avenue for speaking with his

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attorney is contradicted by his complaint, which alleges that Plaintiff was informed his

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attorney could submit a request for a legal telephone call. Plaintiff has not alleged that
his attorney requested a legal telephone call and that such a request was denied, or that
other avenues of communication, such as personal visits, were not available.

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B.

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Plaintiff objects to the Court‟s dismissal of his FTCA claim on the ground that his

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complaint alleged that he had exhausted his administrative remedies and that “certain

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Federal Tort Claims Act

individuals‟ failure to allow Plaintiff to receive packages from his attorney” constituted a

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tortious act on the part of the United States. (ECF No. 72 at 4.) Plaintiff argues that

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Defendants‟ conduct was tortious because they acted with deliberate indifference. (Id.)

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Plaintiff‟s arguments restate allegations that have already been considered by the

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Court. See Westlands Water Dist., 134 F. Supp. 2d at 1131. Plaintiff‟s seventh amended

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complaint alleged that Plaintiff had “exhausted his administrative remedies by filing his

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Administrative claims with [the] appropriate federal agency.” (ECF No. 69 at 6.)
However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Similarly, although Plaintiff

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continues to allege that Defendants‟ failure to allow Plaintiff to receive packages

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constituted a tortious act, this allegation, standing alone, is insufficient to state a tort
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claim.
V.

CONCLUSION AND ORDER
Plaintiff has not met the standard for granting a motion for reconsideration, and

accordingly, his objections (ECF No. 72) are HEREBY DENIED.

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IT IS SO ORDERED.

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Dated:

July 11, 2014

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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