Green v. Sherman, et al.

Filing 35

ORDER (1) DENYING 29 Defendants' Motion to Dismiss as Moot; (2) Directing Clerk of Court to File Plaintiff's Lodged First Amended Complaint Nunc Pro Tunc; (3) GRANTING 33 Defendants' Request to Screen the First Amended Complaint; and (4) DISMISSING First Amended Complaint WITH LEAVE TO AMEND signed by Magistrate Judge Michael J. Seng on 6/1/2017. Second Amended Complaint due within thirty (30) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CEDRIC EUGENE GREEN,

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Plaintiff

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CASE NO. 1:15-cv-1548-LJO-MJS (PC)
ORDER
(1) DENYING DEFENDANTS’
MOTION TO DISMISS AS MOOT;

v.

(2) DIRECTING CLERK OF COURT
TO FILE PLAINTIFF’S LODGED
FIRST AMENDED COMPLAINT
NUNC PRO TUNC;

FRANKLIN, et al.,
Defendants.

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(3) GRANTING DEFENDANTS’
REQUEST TO SCREEN THE
FIRST AMENDED COMPLAINT;
AND

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(4) DISMISSING FIRST AMENDED
COMPLAINT WITH LEAVE TO
AMEND

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(ECF NOS. 29, 31, and 33)

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THIRTY (30) DAY DEADLINE

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
rights action filed pursuant to 42 U.S.C. § 1983. On August 31, 2016, the then-assigned
magistrate judge screened Plaintiff’s complaint and found it to state a cognizable First

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Amendment claim against Defendants Franklin and Ramos.1 (ECF No. 11.) These

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Defendants appeared on April 28, 2017, by filing a motion to dismiss. Plaintiff did not file

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an opposition to the motion; instead, he lodged a First Amended Complaint. (ECF No.

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31.) Defendants now move the Court to screen this new pleading. (ECF No. 33.)

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I.

Screening Requirement

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The in forma pauperis statute provides, “Notwithstanding any filing fee, or any

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portion thereof, that may have been paid, the court shall dismiss the case at any time if

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the court determines that . . . the action or appeal . . . fails to state a claim upon which

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relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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II.

Pleading Standard

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Section 1983 “provides a cause of action for the deprivation of any rights,

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privileges, or immunities secured by the Constitution and laws of the United States.”

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Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983).

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Section 1983 is not itself a source of substantive rights, but merely provides a method for

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vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94

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(1989).

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To state a claim under § 1983, a plaintiff must allege two essential elements:

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(1) that a right secured by the Constitution or laws of the United States was violated and

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(2) that the alleged violation was committed by a person acting under the color of state

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law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d

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1243, 1245 (9th Cir. 1987).

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A complaint must contain “a short and plain statement of the claim showing that

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the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations

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are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported

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by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678

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(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set

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forth “sufficient factual matter, accepted as true, to state a claim to relief that is plausible

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This case was reassigned to the undersigned on September 8, 2016.

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on its face.” Id. Facial plausibility demands more than the mere possibility that a

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defendant committed misconduct and, while factual allegations are accepted as true,

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legal conclusions are not. Id. at 677-78.

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III.

Plaintiff’s Allegations

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At all times relevant to this action, Plaintiff was a state inmate housed at California

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Substantive Abuse Treatment Facility (“CSATF”) in Corcoran, California. He names as

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Defendants Mail Room Employee Ms. Franklin and Appeals Coordinator Mr. Ramos.

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Plaintiff’s allegations may be fairly summarized as follows:

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Plaintiff maintains a “correspondence approval” to communicate with his brother,

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an inmate in the New York Department of Corrections. This approval is transferrable

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among California Department of Corrections (“CDCR”) institutions, and it was in Plaintiff’s

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Central File at CSATF as early as October 19, 2012.

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On February 27, 2014, Plaintiff received a CDCR Form 18192 informing him that

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he has received mail from his brother, but that the mail “was being disapproved due to

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‘no approval on file in the mail room.’” That same day, Plaintiff submitted a request for a

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copy of his “correspondence approval” to be submitted to the mail room. The mailroom

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was notified of this document on March 12, 2014.

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On March 14, 2014, Plaintiff asked a CSATF staff member Zamora (not a party to

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this action) about the status of his brother’s mail that had been previously “disapproved.”

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Zamora contacted the mailroom and spoke to Defendant Franklin, who declined to

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process the mail until she received the CDCR Form 1819 back from Plaintiff. Two days

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later, on March 16, 2014, Plaintiff attached the CDCR Form 1819 to a CDCR Form 223,

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which was submitted to Defendant Franklin in an informal attempt to resolve the dispute.

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On March 20, 2014, Plaintiff submitted an inmate grievance requesting the prompt

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return of his mail. Defendant Ramos screened this appeal on April 2, 2014, asking for a

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copy of the CDCR Form 1819 as supporting documentation. Plaintiff responded that this

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A CDCR Form 1819 is titled “Notification of Disapproval – Mail / Packages / Publication.”
A CDCR Form 22 is titled “Inmate / Parolee Request for Interview, Item or Service.”

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form was unavailable to him because it was forwarded to Defendant Franklin. Defendant

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Ramos then issued a second screening order asking for the CDCR Form 1819.

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On April 11, 2014, Plaintiff received another CDCR Form 1819 noting that a

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second piece of incoming mail from his brother was being disapproved because “no

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approval on file in the mail room.”

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Plaintiff seeks damages.
IV.

Discussion

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A.

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Prisoners enjoy a First Amendment right to send and receive mail. Witherow v.

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Paff, 52 F.3d 264, 265 (9th Cir. 1995) (citing Thornburgh v. Abbott, 490 U.S. 401, 407

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(1989)). Prison officials have a responsibility to forward mail to inmates promptly. Bryan

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v. Werner, 516 F.2d 233, 238 (3d Cir. 1975). However, a temporary delay or isolated

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incident of delay or other mail interference without evidence of improper motive does not

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violate a prisoner’s First Amendment rights. See Crofton v. Roe, 170 F.3d 957, 961 (9th

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Cir. 1999). “Absent evidence of a broader plan or course of conduct to censor plaintiff's

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mail unconstitutionally, an honest error by prison officials does not justify relief under §

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1983.” Watkins v. Curry, 2011 WL 5079532, at *3 (N.D. Cal. Oct. 25, 2011) (citing Lingo

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v. Boone, 402 F. Supp. 768, 773 (C.D. Cal. 1975) (prisoner not entitled to monetary relief

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under section 1983 where prison officials erroneously withheld a single piece of mail on

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the grounds that it was inflammatory)); see also Smith v, Maschner, 899 F.2d 940, 944

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(10th Cir. 1990) (defendants opened a single piece of legal mail by accident; “[s]uch an

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isolated incident, without any evidence of improper motive or resulting interference with

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[the plaintiff]'s right to counsel or to access to the courts, does not give rise to a

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constitutional violation”); Bach v. Illinois, 504 F.2d 1100, 1102 (7th Cir. 1974) (one

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incident of mail mishandling insufficient to show constitutional violation); cf. Antonelli v.

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Sheahan, 81 F.3d 1422, 1431-32 (9th Cir. 1996) (plaintiff stated a claim where he alleged

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not merely negligent, but deliberate, obstruction of his mail that resulted in mail delivery

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being delayed for an inordinate amount of time).

First Amendment Claim

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Plaintiff’s claim against Defendant Franklin is that she failed to promptly deliver a

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piece of mail from Plaintiff’s brother despite a “correspondence approval” allowing

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Plaintiff to receive such mail. On the facts alleged, though, there is no constitutional

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violation. Plaintiff learned that Defendant Franklin would return the mail upon receipt of

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the CDCR Form 1819, which Plaintiff then forwarded to her. While it appears that

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Defendant Franklin did not return the mail to Plaintiff, it is unclear if she received the

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CDCR Form 1819. In addition, there are no facts to suggest that this Defendant intended

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to intentionally interfere with or censor Plaintiff’s mail. Without more, this claim fails as an

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isolated incident.4

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B.

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Plaintiff’s

Inmate Appeal Process
complains

about

Defendant

Ramos

responses

to

Plaintiff’s

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administrative grievance. However, a defendant’s actions in responding to an inmate

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appeal, alone, cannot give rise to any claims for relief under section 1983 for violation of

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due process. “[A prison] grievance procedure is a procedural right only, it does not confer

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any substantive right upon the inmates.” Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir.

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1993) (citing Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982)); see also Ramirez

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v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no liberty interest in processing of appeals

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because no entitlement to a specific grievance procedure); Massey v. Helman, 259 F.3d

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641, 647 (7th Cir. 2001) (existence of grievance procedure confers no liberty interest on

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prisoner); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). “Hence, it does not give

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rise to a protected liberty interest requiring the procedural protections envisioned by the

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Fourteenth Amendment.” Azeez, 568 F. Supp. at 10. Actions in reviewing a prisoner's

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administrative appeal, without more, are not actionable under section 1983. Buckley, 997

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F.2d at 495.

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Plaintiff alleges that Defendant Ramos improperly screened out his administrative

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appeal. Without more, though, these allegations are insufficient to establish liability.

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While Plaintiff did receive a second CDCR Form 1819 on April 11, 2014, he does not allege that
Defendant Franklin authored this form.

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Accordingly, this claim too must be dismissed.

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V.

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Conclusion
Based on the foregoing, Plaintiff’s First Amended Complaint fails to state a claim

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and will therefore be dismissed. The Court will grant Plaintiff another opportunity to

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amend his complaint. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff

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should note that although he has been granted the opportunity to amend his complaint, it

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is not for the purposes of adding new and unrelated claims. George v. Smith, 507 F.3d

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605, 607 (7th Cir. 2007). Plaintiff should carefully review this screening order and focus

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his efforts on curing the deficiencies set forth above.

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Plaintiff is advised that Local Rule 220 requires that an amended complaint be

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complete in itself without reference to any prior pleading. As a general rule, an amended

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complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

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1967). Once an amended complaint is filed, the original complaint no longer serves a

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function in the case. Id. Therefore, in an amended complaint, as in an original complaint,

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each claim and the involvement of each defendant must be sufficiently alleged. The

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amended complaint should be clearly titled, in bold font, “Second Amended Complaint,”

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reference the appropriate case number, and be an original signed under penalty of

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perjury. Plaintiff’s amended complaint should be brief. See Fed. R. Civ. P. 8(a). Although

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accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to relief

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

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Accordingly, it is HEREBY ORDERED that:
1. Defendants’ April 28, 2017, Motion to Dismiss the Complaint (ECF No. 29)
is DENIED as moot;
2. The Clerk of Court is directed to lodge the First Amended Complaint (ECF
No. 31) nunc pro tunc;

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3. Defendants’ request for screening (ECF No. 33) is GRANTED;

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4. Plaintiff’s First Amended Complaint is dismissed with leave to amend for

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failure to state a claim;
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5. Within thirty (30) days from the date of this Order, Plaintiff must file a

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Second Amended Complaint curing the deficiencies identified by the Court

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in this Order or a notice of voluntary dismissal; and

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6. If Plaintiff fails to file a Second Amended Complaint or notice of voluntary

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dismissal, this action will be dismissed, with prejudice, for failure to comply

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with a court order and failure to state a claim.

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IT IS SO ORDERED.
Dated:

June 1, 2017

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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