Tomas Silva v. Pleasant Valley State Prison et al

Filing 10

ORDER Dismissing Complaint with Leave to Amend, signed by Magistrate Judge Dennis L. Beck on 5/28/15. 30-Day Deadline. (Attachments: # 1 Amended Complaint Form)(Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TOMAS SILVA,

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Plaintiff,

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Case No. 1:14-cv-02011-DLB PC
ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

v.
THIRTY-DAY DEADLINE

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HERRERA, et al.,

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Defendants.

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Plaintiff Tomas Silva (“Plaintiff”) is a California state prisoner proceeding pro se and in

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forma pauperis in this action pursuant to 42 U.S.C. § 1983. Plaintiff filed his complaint on October

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31, 2014. It was transferred to this Court on December 16, 2014. Plaintiff names Pleasant Valley

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State Prison (“PVSP”) Captain Herrera, PVSP Mailroom employee Chavez and Does 1-10 as

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Defendants.1

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A.

SCREENING REQUIREMENT
The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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Plaintiff consented to the jurisdiction of the United States Magistrate Judge on January 12, 2015.

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§ 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been paid,

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the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . .

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fails to state a claim upon which relief may be granted.” 28 U.S.C.

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§ 1915(e)(2)(B)(ii).
A complaint must contain “a short and plain statement of the claim showing that the pleader

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is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly,

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550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual matter, accepted as true, to

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‘state a claim that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 555). While factual

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allegations are accepted as true, legal conclusions are not. Id.

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Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or other

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federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092

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(9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v.

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Williams, 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff’s allegations must link the actions or

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omissions of each named defendant to a violation of his rights; there is no respondeat superior

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liability under section 1983. Iqbal, 556 U.S. at 676-77; Simmons v. Navajo County, Ariz., 609 F.3d

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1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009);

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Jones, 297 F.3d at 934. Plaintiff must present factual allegations sufficient to state a plausible claim

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for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

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The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S.

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at 678; Moss, 572 F.3d at 969.

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B.

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SUMMARY OF PLAINTIFF’S ALLEGATIONS
Plaintiff is currently incarcerated at Corcoran State Prison in Corcoran, California. The

events at issue occurred while Plaintiff was housed at PVSP.

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Plaintiff alleges that since April 2014, his girlfriend has been sending him mail and photos

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while he was housed at PVSP. However, for six months, he has not received any mail. Plaintiff

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contends that his girlfriend’s ex-husband is a Correctional Officer at PVSP, and told her that he

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would take her mail and that Plaintiff would not get any of it.

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Plaintiff has since moved to Corcoran State Prison, but he has still not received any mail
from his girlfriend.

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According to his attachments, Plaintiff began to appeal the issue in July 2014, complaining

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that he has not received his girlfriend’s mail or notification from the prison that any mail was being

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withheld (CDCR 1819). The responses indicated that mail staff did not have any mail for Plaintiff,

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and if any mail was withheld, he would receive a CDCR 1819.

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C.

DISCUSSION

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1.

Linkage Requirement

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Under section 1983, Plaintiff must link the named defendants to the participation in the

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violation at issue. Ashcroft v. Iqbal, 556 U.S. 662, 676-77, 129 S.Ct. 1937, 1948-49 (2009);

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Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of

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Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir.

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2002). Liability may not be imposed under a theory of respondeat superior, and there must exist

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some causal connection between the conduct of each named defendant and the violation at issue.

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Iqbal, 556 U.S. at 676-77; Lemire v. California Dep’t of Corr. and Rehab., 726 F.3d 1062, 1074-75

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(9th Cir. 2013); Lacey v. Maricopa County, 693 F.3d 896, 915-16 (9th Cir. 2012) (en banc); Starr v.

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Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011), cert. denied, 132 S.Ct. 2101 (2012).

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Here, Plaintiff names Defendants Herrera and Chavez, but he fails to link either Defendant to

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any of the alleged violations. He does not explain how they were involved in the facts underlying

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his alleged First Amendment claim, and he therefore fails to state a claim against them.

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2.

First Amendment

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Prisoners have “a First Amendment right to send and receive mail.” Witherow v. Paff, 52

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F.3d 264, 265 (9th Cir. 1995). Prison regulations relating to the regulation of incoming mail are

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analyzed under the Turner reasonableness standard set forth in Turner v. Safley, 482 U.S. 78, 89-91

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(1987). Thornburgh v. Abbott, 490 U.S. 401, 413-14 (1989). The regulation is valid if it is

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reasonably related to legitimate penological interests. Turner, 482 U.S. at 89. In determining the
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reasonableness of the regulation, court must consider the following factors: (1) whether there is a

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“valid, rational connection between the regulation and the legitimate government interest put

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forward to justify it,” (2) “whether there are alternative means of exercising the right,” (3) the impact

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that the “accommodation of the asserted constitutional right will have on guards and other inmates,”

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and (4) “the absence of ready alternatives.” Turner, 482 U.S. at 89-90.
Plaintiff alleges that his girlfriend’s ex-husband, who worked at PVSP while Plaintiff was

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housed there, told her that he would take her mail addressed to Plaintiff, and that Plaintiff would not

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receive it. Based on this, Plaintiff believes that beginning in April 2014, the ex-husband has stolen

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incoming mail from his girlfriend. Plaintiff may be able to state a cognizable claim, but he must first

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provide the Court with sufficient facts to link each named Defendant to the alleged violations. Iqbal,

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556 U.S. at 678. Any amended complaint must contain enough factual allegations to raise Plaintiff's

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claims beyond the speculative level. Should Plaintiff choose to amend, he must explain in

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reasonable detail how each Defendant violated his rights.

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D.

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CONCLUSION AND ORDER
Plaintiff’s complaint fails to state a claim upon which relief may be granted under section

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1983. The Court will provide Plaintiff with an opportunity to file an amended complaint. Akhtar,

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698 F.3d at 1212-13; Lopez, 203 F.3d at 1130.

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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what

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each named defendant did that led to the deprivation of Plaintiff’s federal rights and liability may not

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be imposed on supervisory personnel under the theory of mere respondeat superior, Iqbal, 556 U.S.

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at 676-77; Starr v. Baca, 652 F.3d 1202, 1205-07 (9th Cir. 2011), cert. denied, 132 S.Ct. 2101

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(2012). Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to

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relief above the speculative level. . . .” Twombly, 550 U.S. at 555 (citations omitted).

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Finally, an amended complaint supercedes the original complaint, Lacey v. Maricopa

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County, 693 F.3d 896, 907 n.1 (9th Cir. 2012) (en banc), and it must be “complete in itself without

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reference to the prior or superceded pleading,” Local Rule 220.

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Accordingly, it is HEREBY ORDERED that:

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Plaintiff’s complaint is dismissed, with leave to amend, for failure to state a claim;
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The Clerk’s Office shall send Plaintiff a civil rights complaint form;

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3.

Within thirty (30) days from the date of service of this order, Plaintiff shall file an

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amended complaint; and
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If Plaintiff fails to file an amended complaint in compliance with this order, this

action will be dismissed, with prejudice, for failure to state a claim.

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IT IS SO ORDERED.
Dated:

/s/ Dennis

May 28, 2015

L. Beck

UNITED STATES MAGISTRATE JUDGE

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