Green v. Sherman, et al.

Filing 42

FINDINGS and RECOMMENDATIONS recommending that Plaintiff proceed on his First Amendment Claim for Money Damages against Defendant Franklin in her individual capacity; All other claims asserted inthe second amended complaint and all other named defend ants be dismissed with prejudice re 40 Amended Prisoner Civil Rights Complaint filed by Cedric Eugene Green ; referred to Judge O'Neill,signed by Magistrate Judge Michael J. Seng on 10/25/2017. Objections to F&R due by 11/13/2017 (Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CEDRIC EUGENE GREEN, 12 Plaintiff 13 14 15 16 17 18 v. FRANKLIN, et al., CASE NO. 1:15-cv-1548-LJO-MJS (PC) FINDINGS AND RECOMMENDATIONS (1) FOR SERVICE OF COGNIZABLE CLAIM AGAINST DEFENDANT FRANLKIN IN SECOND AMENDED COMPLAINT, AND (2) TO DISMISS ALL OTHER CLAIMS AND DEFENDANTS WITH PREJUDICE Defendants. (ECF NOS. 40 and 41) FOURTEEN (14) DAY OBJECTION DEADLINE 19 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil 20 rights action filed pursuant to 42 U.S.C. § 1983. On August 31, 2016, the then-assigned 21 magistrate judge screened Plaintiff’s complaint and found it stated a cognizable First 22 Amendment claim against Defendants Franklin and Ramos. (ECF No. 11.) The case was 23 reassigned to the undersigned September 8, 2016. Defendants appeared on April 28, 24 2017, and filed a motion to dismiss. Instead of filing an opposition to this motion, Plaintiff 25 lodged a First Amended Complaint. (ECF No. 31.) The Court screened the First 26 Amended Complaint and based upon facts therein that were not in the original complaint, 27 found it stated no cause of action and dismissed it with leave to amend. (ECF No. 35.) 28 1 1 Plaintiff’s Second Amended Complaint is now before the Court for screening. (ECF No. 2 40.) 3 I. Screening Requirement 4 The Court is required to screen complaints brought by prisoners seeking relief 5 against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 6 § 1915A(a). Accordingly, Defendants’ request to screen this pleading will be granted. 7 (ECF No. 41.) 8 The Court must dismiss a complaint or portion thereof if the prisoner has raised 9 claims that are legally “frivolous, malicious,” or that fail to state a claim upon which relief 10 may be granted, or that seek monetary relief from a defendant who is immune from such 11 relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, 12 that may have been paid, the court shall dismiss the case at any time if the court 13 determines that . . . the action or appeal . . . fails to state a claim upon which relief may 14 be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 15 II. Pleading Standard 16 Section 1983 “provides a cause of action for the deprivation of any rights, 17 privileges, or immunities secured by the Constitution and laws of the United States.” 18 Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). 19 Section 1983 is not itself a source of substantive rights, but merely provides a method for 20 vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 21 (1989). 22 To state a claim under § 1983, a plaintiff must allege two essential elements: 23 (1) that a right secured by the Constitution or laws of the United States was violated and 24 (2) that the alleged violation was committed by a person acting under the color of state 25 law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 26 1243, 1245 (9th Cir. 1987). 27 A complaint must contain “a short and plain statement of the claim showing that 28 the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations 2 1 are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported 2 by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 3 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set 4 forth “sufficient factual matter, accepted as true, to state a claim to relief that is plausible 5 on its face.” Id. Facial plausibility demands more than the mere possibility that a 6 defendant committed misconduct and, while factual allegations are accepted as true, 7 legal conclusions are not. Id. at 677-78. 8 III. Plaintiff’s Allegations 9 At all times relevant to this action, Plaintiff was a state inmate housed at California 10 Substantive Abuse Treatment Facility (“CSATF”) in Corcoran, California. He names as 11 Defendants Mail Room Employee Franklin and Appeals Coordinator Ramos. 12 Plaintiff’s allegations may be fairly summarized as follows: 13 Generally, in California, inmates in different prisons may not correspond with one 14 another. However, Plaintiff maintains a “correspondence approval” authorizing him to 15 communicate with his brother, an inmate in the New York Department of Corrections. 16 This approval is transferrable among California Department of Corrections (“CDCR”) 17 institutions, and it was in Plaintiff’s Central File at CSATF as early as October 19, 2012. 18 On July 21, 2013 Plaintiff filed an unspecified complaint directly with the warden. 19 Later, on January 7, 2014, Defendant Ramos told Plaintiff that he should not initiate 20 complaints directly to the warden; Ramos said he would make sure that Plaintiff “thought 21 better of it next time.” 22 23 Following this interaction two pieces of mail from Plaintiff’s brother were “disapproved.” 24 First, on February 27, 2014, Plaintiff received a “Notification of Disapproval – Mail / 25 Packages / Publication”, CDCR Form 1819, signed by non-party Facility Captain J. Perez 26 informing him that mail from his brother “was being disapproved due to ‘no approval on 27 file in the mail room.’” That same day, Plaintiff requested a copy of his “correspondence 28 approval” to present to the mail room. The mailroom was notified of the approval on 3 1 March 12, 2014. 2 On March 14, 2014, in response to Plaintiff’s inquiry (through a non-party staff 3 member) about the status of his brother’s mail, Defendant Franklin said she would not 4 process the mail until she received the CDCR Form 1819 back from Plaintiff. Two days 5 later, on March 16, 2014, Plaintiff submitted the CDCR Form 1819 to Defendant Franklin 6 in an informal attempt to resolve the dispute. 7 On March 20, 2014, Plaintiff submitted an inmate grievance seeking the prompt 8 delivery of his mail. Defendant Ramos screened Plaintiff’s appeal on April 2, 2014 and 9 asked for a copy of the CDCR Form 1819. Plaintiff responded that the form was 10 unavailable because it had been forwarded to Defendant Franklin. Defendant Ramos 11 then rejected the appeal. 12 On April 11, 2014, Plaintiff received another CDCR Form 1819, signed by J. 13 Perez, noting that a second piece of mail from his brother was being disapproved 14 because there was “no approval on file in the mail room.” 15 In addition to the foregoing, Plaintiff states that his wages were withheld, that he 16 was placed in Administrative Segregation on unfounded charges, and that his appeals 17 were improperly handled. Plaintiff speculates that these actions, along with the 18 withholding of mail, were in retaliation for filing the first complaint with the Warden. 19 20 Plaintiff seeks damages. IV. Discussion 21 A. 22 While prisoners enjoy a First Amendment right to send and receive mail, Witherow 23 v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) (citing Thornburgh v. Abbott, 490 U.S. 401, 407 24 (1989)), the right to receive mail in prison is “subject to substantial limitations and 25 restrictions in order to allow prison officials to achieve legitimate correctional goals and 26 maintain institutional security.” Prison Legal News v. Lehman, 397 F.3d 692, 699 (9th Cir. 27 2005). Therefore a prison policy that impinges on inmates' constitutional rights may 28 nonetheless be valid if it is "reasonably related to legitimate penological interests." Turner First Amendment Claim 4 1 v. Safley, 482 U.S. 78, 89 (1987). 2 Prison officials have a responsibility to forward mail to inmates promptly. Bryan v. 3 Werner, 516 F.2d 233, 238 (3d Cir. 1975). A temporary delay or isolated incident of delay 4 or other mail interference without evidence of improper motive does not violate a 5 prisoner’s First Amendment rights. See Crofton v. Roe, 170 F.3d 957, 961 (9th Cir. 6 1999). Even if an error is repeated, “an isolated error in the routine processing of mail” 7 does not constitute a violation. Evans v. Foss, No. 2:17-cv-1088 GEB KJN P, 2017 U.S. 8 Dist. LEXIS 91796, at *5 (E.D. Cal. June 14, 2017) (noting that five letters lost over 9 fourteen years is not a violation). However, the deliberate mishandling of a single piece of 10 mail can state a cognizable § 1983 legal claim. See Watkins v. Curry, No. C 10-2539 SI 11 (pr), 2011 U.S. Dist. LEXIS 34121, at *5 (N.D. Cal. Mar. 21, 2011) (noting that, “The 12 value of such a claim may be quite low, but that does not mean a cognizable claim has 13 not been pled.”). This delay or obstruction must be “purposeful.” Watkins v. Curry, 2011 14 WL 5079532, at *14 (N.D. Cal. Oct. 25, 2011) (citations omitted). See Penton v. 15 Dickinson, No. 2:11-cv-0518 KJN P, 2012 U.S. Dist. LEXIS 93198, at *40 (E.D. Cal. July 16 5, 2012) (finding intentional action from the response of an unidentified mail room 17 attendant acknowledging that mail was withheld); Antonelli v. Sheahan, 81 F.3d 1422, 18 1431-32 (7th Cir. 1996) (plaintiff stated a claim where he alleged not merely negligent, 19 but deliberate, obstruction of his mail that resulted in mail delivery being delayed for an 20 inordinate amount of time). Without evidence of “purposeful” action or “a broader plan or 21 course of conduct to censor plaintiff's mail unconstitutionally, an honest error by prison 22 officials does not justify relief under § 1983.” Watkins, 2011 WL 5079532, at *3 (N.D. Cal. 23 Oct. 25, 2011) (citations omitted). 24 A person deprives another of a constitutional right under section 1983, if “he 25 causes the deprivation.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). “The inquiry 26 into causation must be individualized and focus on the duties and responsibilities of each 27 individual defendant.” Leer v. Murphy, 844 F.2d 628, 633, 1988 (9th Cir. 1988). A 28 supervisor “is only liable for constitutional violations of his subordinates if the supervisor 5 1 participated in or directed the violations, or knew of the violations and failed to act to 2 prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Supervisors must 3 directly be involved in training, supervision, or control of subordinates involved in the 4 claim, acquiesce in the constitutional deprivations of which the complaint is made, or 5 engage in conduct that shows a reckless or callous indifference to the rights of others. 6 Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007). 7 Plaintiff alleges a cognizable First Amendment claim against Defendant Franklin. 8 Plaintiff maintained approval from CDCR to correspond with his brother. Defendant 9 Franklin was notified that Plaintiff’s mail had been withheld despite this approval, and in 10 response she asked Plaintiff to send her the CDCR Form 1819 to enable her to resolve 11 the situation and return his mail. Plaintiff complied with her request, but Defendant 12 Franklin did not return Plaintiff’s letter and Plaintiff’s mail was destroyed. This deliberate 13 action is sufficient to identify a cognizable claim against Defendant Franklin. 14 However, the facts as alleged only tangentially connect Defendant Ramos to the 15 incident. Defendant Ramos does not work in or supervise the mailroom. The 16 administrative appeals were handled by Defendant Ramos, but there is no indication that 17 he personally was involved in the events giving rise to them. Therefore, this claim against 18 Defendant Ramos will be dismissed. Plaintiff has failed on two amended complaints to 19 sufficiently connect the actions of Defendant Ramos to deliberate interference with 20 Plaintiff’s mail. 21 B. 22 Plaintiff may be attempting to state a due process claim under the Fourteenth 23 Amendment. There is a due process liberty interest in receiving notice that incoming mail 24 is being withheld by prison authorities. Frost v. Symington, 197 F.3d 348, 353-54 (9th Cir. 25 1999). Thus, withholding delivery of inmate mail must be accompanied by minimum 26 procedural safeguards. Procunier v. Martinez, 416 U.S. 396, 417–18, 94 (1974) overruled 27 on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989). These procedural 28 safeguards include: (1) notifying the inmate that the mail was seized; (2) allowing the Due Process 6 1 inmate a reasonable opportunity to protest the decision; and (3) referring any complaints 2 to a prison official other than the one who seized the mail. Procunier, 416 U.S. at 418-19; 3 Krug v. Lutz, 329 F.3d 692, 698 (9th Cir. 2003). 4 Plaintiff fails to state a cognizable due process claim. Plaintiff was notified that the 5 mail had been seized. He was given the opportunity to protest the decision. Eventually 6 his protest corrected the wrong. This claim will be dismissed. 7 C. 8 Plaintiff’s allegations suggest a possible claim for retaliation. Within the prison 9 context, a viable retaliation claim has five elements: (1) An assertion that a state actor 10 took some adverse action against an inmate (2) because of (3) that prisoner’s protected 11 conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment 12 rights, and (5) the action did not reasonably advance a legitimate correctional goal. 13 Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); see also Blaisdell v. 14 Frappiea, 729 F.3d 1237, 1242 (9th Cir. 2013) (retaliation claims not limited to First 15 Amendment speech or associational freedom issues). Retaliation 16 The second element of a prisoner retaliation claim focuses on causation and 17 motive. See Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009). A plaintiff must show 18 that his protected conduct was a “‘substantial’ or ‘motivating’ factor behind the 19 defendant’s conduct.” Id. (quoting Sorrano’s Gasco. Inc. v. Morgan, 874 F.2d 1310, 1314 20 (9th Cir. 1989). Although it can be difficult to establish the motive or intent of the 21 defendant, a plaintiff may rely on circumstantial evidence. Bruce v. Ylst, 351 F.3d 1283, 22 1288-89 (9th Cir. 2003) (finding that a prisoner establishes a triable issue of fact 23 regarding prison officials’ retaliatory motives by raising issues of suspect timing, 24 evidence, and statements); Hines v. Gomez, 108 F.3d 265, 267-68 (9th Cir. 1997); Pratt 25 v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995) (“timing can properly be considered as 26 circumstantial evidence of retaliatory intent”). 27 The third prong can be satisfied by various activities but generally is shown by a 28 prisoner’s engagement in First Amendment activities. For example, filing a grievance is a 7 1 protected action under the First Amendment. Valandingham v. Bojorquez, 866 F.2d 1135, 2 1138 (9th Cir. 1989). Pursuing a civil rights litigation similarly is protected under the First 3 Amendment. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985). 4 With respect to the fourth prong, “[it] would be unjust to allow a defendant to 5 escape liability for a First Amendment violation merely because an unusually determined 6 plaintiff persists in his protected activity . . . .” Mendocino Envtl. Ctr. v. Mendocino Cnty., 7 192 F.3d 1283, 1300 (9th Cir. 1999). The correct inquiry is to determine whether an 8 official’s acts would chill or silence a person of ordinary firmness from future First 9 Amendment activities. Rhodes, 408 F.3d at 568-69 (citing Mendocino Envtl. Ctr., 192 10 F.3d at 1300). 11 With respect to the fifth prong, a prisoner must affirmatively show that “the prison 12 authorities’ retaliatory action did not advance legitimate goals of the correctional 13 institution or was not tailored narrowly enough to achieve such goals.” Rizzo, 778 F.2d at 14 532. 15 16 Plaintiff fails to states a cognizable retaliation claim against Defendants Ramos or Franklin. 17 Plaintiff’ allegations suggest the framework, but not all the elements, of a 18 retaliation claim insofar as they imply that Ramos set out to carry out a threat to punish 19 Plaintiff for complaining directly to the warden. However, it appears that Defendant 20 Ramos rejected Plaintiff’s appeal as he was required to under prison rules, because the 21 appeal was not accompanied by the CDCR Form 1819. According to Department 22 Operations Manual § 54100.8, any appeal regarding the denial of mail must attach this 23 form. California Department of Corrections and Rehabilitation, Department Operations 24 Manual (2015). Since Ramos could not have processed the appeal, Plaintiff cannot show 25 that it was rejected because of his protected conduct and unsupported by a legitimate 26 penological interest. 27 Plaintiff did not have the Form 1819 because he had provided the document to 28 Defendant Franklin. The facts do not indicate any relationship between Defendant 8 1 Franklin and Ramos. There is nothing in Plaintiff’s pleading to suggest that Defendant 2 Ramos had any connection to Defendant Franklin’s request or with the decision by the 3 mailroom to withhold either piece of mail. 4 Similarly, the facts as alleged do not indicate any motivation for Defendant 5 Franklin to take retaliatory action against Plaintiff. Plaintiff speculates that Defendant 6 Franklin requested the CDCR Form 1819 to ensure that Plaintiff could not file a complaint 7 against her, but provides no facts from which it might be concluded that Franklin had 8 reason to fear such a complaint. 9 Plaintiff alleges he lost wages and served unfounded time in segregation as 10 retaliation, but does not provide any facts, dates, or other information to connect such 11 events to either Defendant. 12 V. Conclusion and Recommendation 13 Based on the foregoing, it is HEREBY RECOMMENDED that: 14 1. 15 16 Plaintiff proceed on his First Amendment claim for money damages against Defendant Franklin in her individual capacity; 2. All other claims asserted in the second amended complaint and all other 17 named Defendants be dismissed with prejudice because Plaintiff has twice 18 been advised of what must be plead to render such claims cognizable and, 19 despite a total of three attempts, essentially re-alleges the same facts. 20 Thus, no useful purpose would be served in once again advising of the 21 essential elements and giving Plaintiff yet another opportunity to plead 22 them. 23 These findings and recommendations will be submitted to the United States 24 District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 25 636(b)(1). Within fourteen (14) days after being served with the findings and 26 recommendations, the parties may file written objections with the Court. The document 27 should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” 28 A party may respond to another party’s objections by filing a response within fourteen 9 1 (14) days after being served with a copy of that party’s objections. The parties are 2 advised that failure to file objections within the specified time may result in the waiver of 3 rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter 4 v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 5 6 7 8 IT IS SO ORDERED. Dated: October 25, 2017 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10

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