Lewis v. Alison et al

Filing 22

FINDINGS and RECOMMENDATIONS Regarding Dismissal of Certain Claims, signed by Magistrate Judge Barbara A. McAuliffe on 12/10/2013, referred to Judge O'Neill. Objections to F&R Due Within Thirty Days. (Marrujo, C)

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1 2 3 4 5 6 EASTERN DISTRICT OF CALIFORNIA 7 8 9 HOMER TYRONE LEWIS, 10 11 12 Plaintiff, v. KATHLEEN ALISON, et al., 13 Defendants. 14 ) ) ) ) ) ) ) ) ) ) ) 1:12-cv-00856-LJO-BAM (PC) FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF CERTAIN CLAIMS THIRTY-DAY DEADLINE 15 16 I. Screening Requirement and Standard 17 Plaintiff Homer Tyrone Lewis (“Plaintiff”) is a state prisoner proceeding pro se and in 18 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On October 25, 2013, the 19 Court directed Plaintiff either to file a third amended complaint or to notify the Court of his 20 willingness to proceed on the cognizable claims in his second amended complaint. (ECF No. 21 20.) Plaintiff’s third amended complaint, filed on November 18, 2013, is currently before the 22 Court for screening. (ECF No. 21.) 23 The Court is required to screen complaints brought by prisoners seeking relief against a 24 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. § 25 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or 26 malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 27 28 1 1 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28 2 U.S.C. § 1915(e)(2)(B)(ii). 3 A complaint must contain “a short and plain statement of the claim showing that the 4 pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 5 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 6 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 7 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 8 (2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge 9 unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) 10 (internal quotation marks and citation omitted). 11 To survive screening, Plaintiff’s claims must be facially plausible, which requires 12 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 13 for the misconduct alleged. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); 14 Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility 15 that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short 16 of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks 17 omitted); Moss, 572 F.3d at 969. Plaintiff’s Allegations 18 II. 19 Plaintiff is currently housed at California State Prison, Lancaster located in Lancaster, 20 California. The events complained about allegedly occurred while Plaintiff was housed at the 21 California Substance Abuse Treatment Facility (“CSATF”) located in Corcoran, California. 22 Plaintiff names CSATF Interim Warden Kathleen Alison, Corcoran State Prison Interim Warden 23 Derral G. Adams, Corcoran State Prison Chief Deputy Warden Maurice Junious, CSATF 24 Facility Captain P. Denny, CSATF Officer G. Parra, and CSATF Officer R. Garza in their 25 individual and official capacities as defendants. 26 Plaintiff alleges as follows: On January 31, 2011, Plaintiff was in his assigned bunk in 27 Facility “D” Building when the control booth officer opened the cell door. Defendant G. Parra 28 2 1 approached Plaintiff’s cell door and issued an order for Plaintiff to stand up and step outside the 2 cell. When Plaintiff complied, Defendant Parra handcuffed Plaintiff, escorted him to the Facility 3 “D” program office and placed him into a holding cell. Defendant Parra informed Plaintiff that it 4 was ordered by Defendants Alison and Denny that Plaintiff be removed from Facility “D” 5 Building and placed in Administrative Segregation (“Ad-Seg”) for allegations of threat to murder 6 a correctional officer on Facility “D.” 7 While Plaintiff was in the holding cell, Defendant Parra informed Plaintiff that she was 8 going to conduct a cell search of Plaintiff’s assigned cell. After Defendant Parra completed the 9 search, she confiscated three boxes of Plaintiff’s civil file pertaining to his pending civil case, 10 Case No. 1:10cv00266 LJO DLB, along with legal transcripts and law books. Defendant Parra 11 brought all three boxes to the Facility “D” program office to be reviewed by the Investigative 12 Services Unit (“ISU”). Plaintiff asked Defendant Parra why only his legal materials were being 13 confiscated, but Defendant Parra refused to answer. Plaintiff later learned that the cell search 14 and confiscation of legal materials was witnessed by inmate Daniel Masterson. 15 On February 1, 2011, Defendant Denny came to Ad-Seg and held Plaintiff’s CDC 114-D 16 unit placement hearing. During this interview, Defendant Denny stated, “This Ad-Seg 17 placement will teach you not to file lawsuits against my former boss, Derral G. Adams.” (ECF 18 No. 21, p 7.) 19 On February 22, 2011, Plaintiff followed prison procedure and submitted a CDCR-22 20 request form to Defendant Parra through institutional mail. Plaintiff requested return of all of his 21 legal materials. 22 On February 28, 2011, Defendant Parra responded to Plaintiff in writing, stating “All of 23 your legal materials [were] collected by 3rd/W Facility “D” Officer Carlos. Therefore you need 24 to forward an inmate request for interview to Officer Carlos.” (ECF No. 21, p. 7.) 25 Dissatisfied with Defendant Parra’s response, Plaintiff continued to exhaust his 26 administrative remedies. Plaintiff responded by filling out Section C of the CDCR-22 request 27 28 3 1 form for supervisor review on March 9, 2011. Plaintiff forwarded the CDCR-22 form to 2 Defendant Parra’s supervisor via institutional mail. 3 On the morning of March 14, 2011, Defendant Denny came to Ad-Seg on Facility “E” 4 and held CDC 114-D hearings for other inmates. After Defendant Denny completed his 5 hearings, he approached Plaintiff’s cell door and stated, “I was informed by Kathleen Alison that 6 you . . . recently filed a staff complaint against me and the attorney’s office informed me that you 7 sent a letter to them about the statement I made to you on February 1, 2011, about filing lawsuits 8 against my former boss Mr. Derral Adams, and sent letter to the federal court in a motion, and 9 now that I have your evidence and other legal materials out of your legal materials to support 10 your lawsuit, that’s the last time you’ll pursue lawsuits against my colleague[]s at Corcoran 11 Prison.” (ECF No. 21, pp. 7-8.) 12 On March 23, 2011, Defendant Parra’s supervisor, M. Ramirez, responded to Plaintiff’s 13 request form and stated, “Officer Parra was the initial person who confiscated your written 14 materials. However, to expedite the review process, officer [C]arlos collected said property from 15 ISU and reviewed it. Officer Carlos subsequently returned your property upon completion of his 16 review. ISU nor Parra has any of your property. Therefore, this matter is resolved.” (ECF No. 17 21, p. 8.) 18 Plaintiff alleges that Defendants tried to obtain their advantage with this Court to get 19 Plaintiff’s pending civil case dismissed when defense counsel filed their motion to dismiss on 20 March 14, 2011. Plaintiff alleges that this is the exact date that Defendant Denny approached 21 Plaintiff’s cell door and informed Plaintiff that he had Plaintiff’s legal materials. 22 Plaintiff alleges that Defendants Adams and Junious engaged in a conspiracy to retaliate 23 against Plaintiff when they were served with Plaintiff’s civil action in February 2011. Plaintiff 24 claims that Defendants conspired together and held all of Plaintiff’s legal materials in the ISU 25 office at SATF from January 31, 2011 to July 8, 2011 per the order of Defendant Denny, which 26 is documented by Defendant Garza on May 25, 2011. 27 28 4 1 Plaintiff further alleges that he repeatedly requested the return of his legal materials while 2 in Ad-Seg. Defendants Alison and Adams, in their supervisory positions, failed to take 3 disciplinary action against the remaining defendants. 4 On June 10, 2011, Plaintiff was scheduled for transfer from CSATF to Lancaster State 5 Prison. While Plaintiff was awaiting transfer in a holding cell, Defendant Garza came to 6 interview Plaintiff regarding his inmate grievance. During this interview, Defendant Garza, in 7 front of an inmate witness, stated, “Mr. Lewis, Im hear [sic] to interview you about 602 appeal 8 on missing legal materials and to inform you that Mr. Adams, Warden and Mr. Junious, Chief 9 Deputy Warden at [Corcoran State Prison] ordered Captain P. Denny to get your legal materials 10 for them, and after Captain P. Denny and ISU reviewed it, the Captain confiscated [1-Box] of 11 legal materials, and then I personally consolidated the rest of your legal materials into 2-boxes.” 12 (ECF No. 21, p. 9.) 13 Plaintiff asserts the following causes of action: (1) retaliation in violation of the First 14 Amendment against Defendants Alison, Adams, Junious, Denny, Parra and Garza; (2) a violation 15 of due process/access to courts; and (3) violation of California Penal Code § 2601. 16 17 III. Discussion A. Official Capacity and Eleventh Amendment Immunity 18 As previously explained to Plaintiff, he may not bring suit for money damages against 19 Defendants in their official capacities. The Eleventh Amendment prohibits suits for monetary 20 damages against a State, its agencies, and state officials acting in their official capacities. 21 Aholelei v. Dept. of Public Safety, 488 F.3d 1144, 1147 (9th Cir.2007). A suit against a state 22 official in his official capacity equates to a suit against the state employing that official, Hafer v. 23 Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991), effectively barring a plaintiff 24 from bringing suit on these grounds. However, the Eleventh Amendment does not bar a suit for 25 monetary damages against a state official sued in his individual capacity. Id. Accordingly, the 26 Court recommends that Plaintiff’s claims for damages against Defendants in their official 27 capacities be dismissed. 28 5 1 B. First Amendment - Retaliation 2 Plaintiff claims that Defendants Alison, Adams, Junious, Denny, Parra and Garza 3 retaliated against him for filing a civil lawsuit. Within the prison context, a viable claim of First 4 Amendment retaliation consists of five elements: “(1) An assertion that a state actor took some 5 adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that 6 such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did 7 not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567 8 (9th Cir. 2005); accord Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012); Brodheim v. 9 Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). 10 A plaintiff suing for retaliation under section 1983 must allege that “he was retaliated 11 against for exercising his constitutional rights and that the retaliatory action does not advance 12 legitimate penological goals, such as preserving institutional order and discipline.” Barnett v. 13 Centoni, 31 F.3d 813, 816 (9th Cir. 1994). The plaintiff does not need to show actual inhibited 14 or suppressed speech, but that there was a chilling effect upon his speech. Rhodes, 408 F.3d at 15 569. The burden is on the plaintiff to plead and prove the absence of any legitimate correctional 16 goals for the alleged conduct. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). 17 18 19 20 Plaintiff has stated a cognizable claim for retaliation against Defendants Alison, Adams, Junious, Denny, Parra and Garza in their individual capacities. C. Violation of Due Process/Access to Courts Plaintiff claims a violation of his right to access the courts. Inmates have a fundamental 21 constitutional right of access to the courts. Lewis v. Casey, 518 U.S. 343, 346, 116 S.Ct. 2174, 22 135 L.Ed.2d 606 (1996). The right of access is merely the right to bring to court a grievance the 23 inmate wishes to present, and is limited to direct criminal appeals, habeas petitions, and civil 24 rights actions. Id. at 354. Claims for denial of access to the courts may arise from the frustration 25 or hindrance of “a litigating opportunity yet to be gained” (forward-looking access claim) or 26 from the loss of a meritorious suit that cannot now be tried (backward-looking claim). 27 Christopher v. Harbury, 536 U.S. 403, 412-15, 122 S.Ct. 2179, 2185–87, 153 L.Ed.2d 413 28 6 1 (2002). A prisoner alleging a violation of his right of access to the courts must demonstrate that 2 he has suffered “actual injury.” Lewis, 518 U.S. at 349–50. The actual-injury requirement 3 mandates that an inmate “demonstrate that a nonfrivolous legal claim had been frustrated or was 4 being impeded.” Id. at 353. The Supreme Court rejected the notion that the state must enable a 5 prisoner to “litigate effectively once in court.” Id. at 354 (quoting and disclaiming language 6 contained in Bounds v. Smith, 430 U.S. 817, 825–26, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977)); see 7 also Cornett v. Donovan, 51 F.3d 894, 898-900 (9th Cir.1995) (determining that prisoners’ right 8 of access to the courts is limited to the pleading stage of a civil rights action or petition for writ 9 of habeas corpus). 10 Here, Plaintiff appears to be challenging the confiscation of his legal materials related to 11 pending civil action 1:10-cv-00266-LJO-DLB. Plaintiff has failed to allege that he was 12 prevented from filing his complaint in that action. Rather, Plaintiff is complaining about his 13 ability to effectively litigate once in court. However, the Court notes that the parties reached a 14 settlement agreement in civil action 1:10-cv-00266-LJO-DLB. Plaintiff therefore has failed to 15 state a cognizable claim for denial of access to the courts. Lewis, 518 U.S. at 354. Accordingly, 16 the Court recommends that Plaintiff’s denial of access to the courts claim be dismissed. 17 18 D. Penal Code Violation Plaintiff seeks to impose liability against Defendants based on an alleged violation of 19 California Penal Code § 2601. In particular, Plaintiff claims that Defendants violated his section 20 2601 right to inherit, own, sell or convey real or personal property, including all written and 21 artistic material produced or created by the person during imprisonment. However, the right 22 does not extend to possession of any particular property in prison. The Court finds that Plaintiff 23 fails to state a claim upon which relief may be granted based on an alleged violation of Penal 24 Code § 2601. Accordingly, it is recommended that this claim be dismissed. 25 26 27 E. Declaratory Relief In addition to damages, Plaintiff seeks a declaration that his rights were violated. “A declaratory judgment, like other forms of equitable relief, should be granted only as a matter of 28 7 1 judicial discretion, exercised in the public interest.” Eccles v. Peoples Bank of Lakewood 2 Village, 333 U.S. 426, 431 (1948). “Declaratory relief should be denied when it will neither 3 serve a useful purpose in clarifying and settling the legal relations in issue nor terminate the 4 proceedings and afford relief from the uncertainty and controversy faced by the parties.” United 5 States v. Washington, 759 F.2d 1353, 1357 (9th Cir. 1985). In the event that this action reaches 6 trial and the jury returns a verdict in favor of Plaintiff, the verdict will be a finding that Plaintiff’s 7 constitutional rights were violated. Accordingly, a declaration that any defendant violated 8 Plaintiff’s rights is unnecessary. 9 10 III. Conclusion and Order Plaintiff’s complaint states a cognizable claim of retaliation in violation of the First 11 Amendment against Defendants Alison, Adams, Junious, Denny, Parra and Garza in their 12 individual capacities, but does not state any other claims for relief under section 1983. 13 As Plaintiff was provided with the relevant legal standards and was given multiple 14 opportunities to file an amended complaint, the Court does not recommend granting further leave 15 to amend. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). 16 Based on the foregoing, it is HEREBY RECOMMENDED that: 17 1. This action proceed on Plaintiff’s third amended complaint, filed on November 18 18, 2013, against Defendants Alison, Adams, Junious, Denny, Parra and Garza in their individual 19 capacities for retaliation in violation of the First Amendment. 20 21 22 23 2. Plaintiff’s claims for damages against Defendants in their official capacities be DISMISSED; 3. Plaintiff’s denial of access to the courts and California Penal Code § 2601 claims be DISMISSED from this action; and Plaintiff’s request for declaratory relief be DISMISSED. 24 4. 25 These Findings and Recommendations will be submitted to the United States District 26 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 27 thirty (30) days after being served with these Findings and Recommendations, the plaintiff may 28 8 1 file written objections with the Court. The document should be captioned “Objections to 2 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 3 objections within the specified time may waive the right to appeal the District Court’s order. 4 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 5 6 7 IT IS SO ORDERED. Dated: /s/ Barbara December 10, 2013 8 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9

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