Armentero v. Lopez et al.

Filing 15

ORDER DISMISSING the Complaint without Leave to Amend signed by Magistrate Judge Jennifer L. Thurston on 08/05/2013. CASE CLOSED. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LUIS LORENZO ARMENTERO,

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Plaintiff,

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v.

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N. LOPEZ et al.,

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Defendants.

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Case No.: 1:13-cv-00673 - JLT (PC)
ORDER DISMISSING THE COMPLAINT
WITHOUT LEAVE TO AMEND
(Doc. 12)

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Plaintiff Luis Lorenzo Armentero (“Plaintiff”) is state prisoner proceeding pro se in a civil

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rights action pursuant to 42 U.S.C. § 1983. (Doc. 1). Plaintiff consented to the jurisdiction of the

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Magistrate Judge on May 30, 2013. (Doc. 5). As required by 28 U.S.C. § 1915A, the Court screens

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the first amended complaint, and for the reasons set forth below, the Court ORDERS that the

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complaint be DISMISSED.

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I.

Screening Requirement

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Because Plaintiff seeks redress from governmental employees in a civil action, the Court is

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required to screen his complaint in order to identify any cognizable claims. 28 U.S.C. § 1915A(a)-(b).

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The Court shall “dismiss the complaint, or any portion of the complaint, if the complaint (1) is

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frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary

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relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b); 28 U.S.C. §

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1915(e)(2)(B)(i)-(iii).
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II.

PLEADING STANDARDS
A. Fed. R. Civ. P. 8(a)

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“Pro se documents are to be liberally construed” and “‘must be held to ‘less stringent standards

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than formal pleadings drafted by lawyers.’” Estelle v. Gamble, 429 U.S. 97, 106 (1976) (quoting

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Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “[They] can only be dismissed for failure to state a

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claim if it appears ‘beyond doubt that the plaintiff can prove no set of facts in support of his claim

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which would entitle him to relief.’” Id. Under Federal Rule of Civil Procedure 8(a), “[a] pleading that

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states a claim for relief must contain: (1) a short and plaint statement of the grounds for the court’s

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jurisdiction, . . . ; (2) a short and plain statement of the claim showing that the pleader is entitled to

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relief; and (3) a demand for the relief sought.” Fed. R. Civ. P. 8(a). Each allegation must be simple,

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concise, and direct. Fed. R. Civ. P. 8(d)(1). While a complaint “does not need detailed factual

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allegations, a plaintiff’s obligation to provide the ‘grounds’ of his entitlement to relief requires more

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than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not

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do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (internal quotation marks and citations

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omitted).

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In analyzing a pleading, the Court sets conclusory factual allegations aside, accepts all non-

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conclusory factual allegations as true, and determines whether those non-conclusory factual

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allegations accepted as true state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556

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U.S. 662, 676-684 (2009). “The plausibility standard is not akin to a probability requirement, but it

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asks for more than a sheer possibility that a defendant has acted unlawfully.” (Id. at 678) (internal

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quotation marks and citation omitted). In determining plausibility, the Court is permitted “to draw on

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its judicial experience and common sense.” Id. at 679.

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B. 42 U.S.C. § 1983

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In order to sustain a cause of action under 42 U.S.C. § 1983, a plaintiff must show (i) that he

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suffered a violation of rights protected by the Constitution or created by federal statute, and (ii) that

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the violation was proximately caused by a person acting under color of state law. See Crumpton v.

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Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). The causation requirement of § 1983 is satisfied only if a

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plaintiff demonstrates that a defendant did an affirmative act, participated in another's affirmative act,
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or omitted to perform an act which he was legally required to do that caused the deprivation of which

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the plaintiff complains. Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981) (quoting Johnson v.

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Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978)). 42 U.S.C. § 1983 does not create substantive rights, but

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rather services as a vehicle to protect federal rights which have been established elsewhere. Graham v.

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Connor, 490 U.S. 386, 393-394 (1989).

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III.

PLAINTIFF’S COMPLAINT

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Plaintiff is currently incarcerated at Deuel Vocational Institute in Tracy, California. (Doc. 12 at

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1). His cause of action arose against Counselor Lopez and Warden Hartley while he was incarcerated

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at Avenal State Prison (“ASP”) in September of 2011. Id. at 2-3. Plaintiff claims that on September 4,

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2011,1 he mailed “confidential mail” to Warden Hartley’s office. (Doc. 12 at 3). Counselor Lopez, an

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Appeals Coordinator Supervisor at ASP subsequently read and responded to Plaintiff’s

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correspondence. Id. at 3.

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IV.

DISCUSSION AND ANALYSIS

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A. First Amendment Right to Mail and Free Speech

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Plaintiff concludes that Counselor Lopez violated of his First Amendment rights to freedom of

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speech and to receive mail by “interfere[ing] and affect[ing]” with his “confidential letter” to Warden

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Lopez in. (Doc. 12 at 10). Plaintiff was previously advised that prison regulations and practices

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affecting incoming mail must be reasonably related to a legitimate penological interest. See

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Thornburgh v. Abbott, 490 U.S. 401, 413-14 (1989). Legitimate penological interests generally

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include “security, order, and rehabilitation.” Procunier v. Martinez, 416 U.S. 396, 413 (1974). In

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regard to outgoing mail, Plaintiff was further advised that “[w]hen a prison regulation affects outgoing

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mail as opposed to incoming mail, there must be a closer fit between the regulation and the purpose it

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serves.” Witherow, 52 F.3d at 265 (citation and internal quotation marks omitted). In other words, a

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regulation or practice that affects outgoing mail must be “closely related to a legitimate penological

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interest.” Id. However, in neither case, be it outgoing or incoming mail, must the challenged

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The first amended complaint states “September 4, 2013,” a date which has not yet occurred. However, because
Plaintiff previously indicated that this letter was mailed on September 4, 2011, the Court presumes that 2011 is the proper
year.

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regulation or practice satisfy “a least restrictive means test.” Witherow, 52 F.3d at 265 (citing

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Thornburgh, 490 U.S. at 411-13).

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An inmate’s right to the freedom of speech is integral to his or her First Amendment right to

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receive and send mail. Clement v. California Dep't of Corr., 364 F.3d 1148, 1151 (9th Cir. 2004)

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(“The First Amendment embraces the right to distribute literature, and necessarily protects the right to

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receive it.” (internal citations and quotations omitted)). A prisoner retains his right to free speech

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unless it is inconsistent with a facility’s legitimate penological objective.” Clement, 364 F.3d at 1151.

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Here, the Court again notes that Warden Hartley’s office received Plaintiff’s correspondence2 prior to

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forwarding the document to Counselor Lopez in compliance with Cal. Code Reg. 2084.5. (Doc. 1 at 3,

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30). As explained below, permitting Plaintiff to proceed on his claim against Counselor Lopez would

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be inconsistent with current law.

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Section 1997e(a) of the Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall

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be brought with respect to prison conditions under section 1983 of this title, or any other Federal law,

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by a prisoner confined in any jail, or other correctional facility until such administrative remedies as

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are available are exhausted.” 42 U.S.C. § 1997e(a). The United States Supreme Court defers to

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prisons to establish the deadlines and critical procedural rules an inmate must comply with in order to

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exhaust his or her administrative remedy. See e.g., Woodford v. Ngo, 548 U.S. 81, 93 (2006).

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Exhaustion of administrative remedies is mandatory. Booth v. Churner, 532 U.S. 731, 741 (2001).

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In compliance with the PLRA, the California Department of Corrections and Rehabilitation has

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established its own administrative grievance system. See Jones v. Haws, Case No, CV 08-6309 PSG

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(FFM), 2009 WL 4015432, at *3 n. 2 (C.D. Cal. Nov. 18, 2009). 15 Cal. Code Reg. 2084.5 is a

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mandatory step in the CDCR’s administrative grievance process. See Jones, 2009 WL, at *3 n. 2.

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Furthermore, as previously advised, § 3084.5(b) mandates that an appeals coordinator, such as

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Counselor Lopez, “screen all appeals prior to acceptance and assignment for review.” 15 Cal. Code.

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Reg. § 3084.5(b). Thus, in the absence of any factual allegation to suggest that Counselor Lopez acted

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The Court may, and presently does, disregard Plaintiff’s factual allegations that are contradicted by exhibits
attached to the original complaint. Cooper v. Yates, Case Number 1:09-CV-85-AWI-MJS P, 2010 WL 4924748,

at * 3 (E.D. Cal. Nov. 29, 2010).

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in an unconstitutional manner, the Court finds that Plaintiff again fails to state a claim. Thus, the

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claim again Counselor Lopez is DISMISSED.

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B. Liability of Warden Hartley

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The Court previously advised Plaintiff that he must demonstrate that each defendant personally

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participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir.2002)

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(emphasis added). Plaintiff must demonstrate that each defendant, through his or her own individual

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actions, violated Plaintiff's constitutional rights. Liability may not be imposed on supervisory

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personnel under section 1983 on the theory of respondeat superior, as each defendant is only liable for

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his or her own misconduct. Ashcroft, 556 U.S. at 675-677; Ewing v. City of Stockton, 588 F.3d 1218,

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1235 (9th Cir. 2009). A supervisor may be held liable only if he or she “participated in or directed the

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violations, or knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040,

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1045 (9th Cir.1989); accord Starr v. Baca, No. 09–55233, 2011 WL 477094 *4–5 (9th Cir. 2011);

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Corales v. Bennett, 567 F.3d 554, 570 (9th Cir.2009); Preschooler II v. Clark County School Board of

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Trustees, 479 F.3d 1175, 1182 (9th Cir.2007); Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir.1997).

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Plaintiff concludes that Warden Hartley violated his right to send and receive mail because he

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was aware the Counselor Lopez read and responded to Plaintiff’s “confidential letter” and failed to act.

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(Doc. 12 at 10-11). As noted above, Counselor Lopez engaged in no underlying constitutional

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violation. Plaintiff provides no further factual allegations for the Court to find that Warden Hartley

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engaged in any constitutional violation whatsoever. Just like any other person in society, Plaintiff has

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no right to demand a response from the person to whom he sent mail. The recipient decides whether

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he will respond and his failure to personally respond does not implicate the Constitution merely

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because Plaintiff is in prison and the recipient is the Warden. Likewise, the fact that Plaintiff merely

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entitled his mail “confidential,” does not place any legal obligation upon Hartley to maintain the

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confidentiality of the document and it certainly does not implicate a constitutional violation. Thus, the

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claim against Defendant Warden is DISMISSED.

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V.

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LEAVE TO AMEND WOULD BE FUTILE
The Court previously described in detail the legal standards necessary state a cognizable First

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Amendment claim. See (Doc. 4). Plaintiff again fails to do so. Furthermore, no factual allegations

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presented indicate that Plaintiff possesses any further claims against these Defendants. Therefore,

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leave to amend would be futile.
ORDER

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Accordingly, the Court HEREBY ORDERS that:

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1. The claim is DISMISSED without leave to amend; and

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2. The Clerk of the Court is DIRECTED TO CLOSE this matter.

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IT IS SO ORDERED.
Dated:

August 5, 2013

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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