Johnson v. White, et al.

Filing 11

SCREENING ORDER; ORDERED that Plaintiff's Fourteenth Amendment Due Process Claim be DISMISSED WITHOUTLEAVE TO AMEND; ORDERED that no later than October 25, 2016, Plaintiff required to file a written response, signed by Chief Judge Lawrence J. O'Neill on 9/121/16. (Case Management Deadline: 10/25/2016) (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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VANCE EDWARD JOHNSON

Case No. 1:16-CV-00710-LJO-SAB

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Plaintiff,

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v.

SCREENING ORDER

M. WILSON, et. al.,
(ECF No. 1)
Defendants.

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PRELIMINARY STATEMENT TO PARTIES AND COUNSEL
Judges in the Eastern District of California carry the heaviest caseloads in the nation, and this

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Court is unable to devote inordinate time and resources to individual cases and matters. Given the

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shortage of district judges and staff, this Court addresses only the arguments, evidence, and matters

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necessary to reach the decision in this order. The parties and counsel are encouraged to contact the

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offices of United States Senators Feinstein and Boxer to address this Court’s inability to

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accommodate the parties and this action. The parties are required to reconsider consent to conduct all

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further proceedings before a Magistrate Judge, whose schedules are far more realistic and

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accommodating to parties than that of U.S. Chief District Judge Lawrence J. O'Neill, who must

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prioritize criminal and older civil cases.

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Civil trials set before Chief Judge O'Neill trail until he becomes available and are subject to

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suspension mid-trial to accommodate criminal matters. Civil trials are no longer reset to a later date

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if Chief Judge O'Neill is unavailable on the original date set for trial. Moreover, this Court's Fresno

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Division randomly and without advance notice reassigns civil actions to U.S. District Judges

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throughout the nation to serve as visiting judges. In the absence of Magistrate Judge consent, this

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action is subject to reassignment to a U.S. District Judge from inside or outside the Eastern District

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of California.

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I.

Screening Requirement and Standard

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Plaintiff Vance Edward Johnson (“Plaintiff”) is a California state prisoner proceeding pro se

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and in forma pauperis1 in this civil rights action under 42 U.S.C. § 1983 and 42 U.S.C. § 1985. See

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ECF No. 1. Plaintiff’s complaint, filed on May 20, 2016, is currently before the Court2 for

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screening. See id.
The Court is required to screen complaints brought by prisoners seeking relief against a

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

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Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is legally “frivolous or

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malicious,” if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief

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from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1) & (2); 28 U.S.C.

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§ 1915(e)(2)(B)(ii).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke

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v. Williams, 490 U.S. 319, 325 (1989). The court may, therefore, dismiss a claim as frivolous where

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it is based on an indisputably meritless legal theory or where the factual contentions are clearly

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baseless. Neitzke, 490 U.S. at 327. Thus, the critical inquiry is whether a constitutional claim,

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however unartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885

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F.2d 639, 640 (9th Cir. 1989).
As a pro se litigant, Plaintiff is entitled to have his pleadings liberally construed and to have

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any doubt resolved in his favor. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations

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See ECF No. 2.

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Plaintiff declined the jurisdiction of the Magistrate Judge previously assigned to his case. ECF No. 8.

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omitted). Nevertheless, Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that his

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complaint contain “a short and plain statement of the claim showing that [he] is entitled to relief.”

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Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of

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

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678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s

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allegations are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v.

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Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation

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omitted). Thus, to survive screening, Plaintiff’s claims must be facially plausible, which requires

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sufficient factual detail to allow the Court reasonably to infer that each named defendant is liable

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for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted). The sheer possibility

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that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of

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satisfying the plausibility standard. Id.

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If the Court determines that the complaint may be cured by amendment, the Court will grant

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Plaintiff leave to amend and provide him with notice of the complaint’s deficiencies. Cato v. United

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States, 70 F.3d 1103, 1106 (9th Cir. 1995). The Court will deny leave to amend if “it is absolutely

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clear” that amendment of a claim would be futile. See id.
Plaintiff’s Allegations and Requested Relief

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II.

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Plaintiff is currently incarcerated at Pleasant Valley State Prison (“PVSP”), in Coalinga,

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California, where the events alleged in the complaint occurred. See ECF No. 1. Plaintiff names the

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following Defendants: M. Wilson, correctional lieutenant; White, a receiving and release

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corrections officer; and Carr, a receiving and release correctional sergeant (collectively,

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“Defendants”). See id. at 5.3 Plaintiff’s allegations, which claim violations of his First, Fifth, and

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Fourteenth Amendment rights, are as follows:

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On February 12, 2013, White wrongfully confiscated, destroyed, and disposed of Plaintiff’s

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CDs and JWIN radio. Id. Plaintiff subsequently filed two inmate appeals against White, after which

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White retaliated against Plaintiff by confiscating Plaintiff’s books (which Plaintiff claims were

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assisting his “legal settlement negotiations”) and more CDs on March 19, 2014. Id. at 5-6.

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Pincites refer to CM/ECF pagination located at the top of each page.

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Plaintiff alleges that Carr “obstructed justice” while conducting first-level reviews of

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Plaintiff’s inmate appeals against White on May 29, 2014, and June 6, 2013. Id. at 6. Carr, who was

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a supervisor, “condoned White’s malfeasance, retaliatory conduct, and the actions of [White]’s

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wrongful confiscation, destruction, and trashing of [Plaintiff’s property]” and made false statements

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in collusion with both White and Wilson to “gloss over and circumvent [Plaintiff]’s appeal efforts.”

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Id.
Plaintiff alleges that White “obstructed justice” by engaging in a conspiracy with Wilson, at

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the second level review of one of Plaintiff’s appeals against White. Id. White, in an attempt to

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“cover up,” filed a request to the Sacramento office of the California Department of Corrections

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and Rehabilitation (“CDCR”), to place Plaintiff’s books (which he had allegedly already

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confiscated from Plaintiff) on the Disapproval List. Id. The Sacramento officials denied White’s

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request on April 10, 2014, stating that the books had already been approved at PVSP before March

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19, 2014. Id. On October 8, 2014, Wilson conducted a second-level review of Sacramento CDCR

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official’s decision to deny White’s request to put Plaintiff’s books on the Disapproval List. Id. In

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collusion with White, Wilson determined that Plaintiff’s books were approved on April 10, 2014,

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reversing the decision of the Sacramento official finding that the books had been approved before

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March 19, 2014.
Based on the foregoing, Plaintiff requests that White pay him $35.00 in compensatory

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damages and $35.00 in punitive damages and to replace his JWIN CD-Cassette-Radio and books

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(the Art of Seduction and 48 Laws of Power); that Wilson pay him $35.00 in compensatory

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damages and $35.00 in punitive damages; and that Carr pay him $20.00 in compensatory damages

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and $20.00 in punitive damages. Id. at 7.4
III.

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a. Government Defendants

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All three Defendants in this case are government employees, as they work for the CDCR.

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Analysis

However, insofar as Plaintiff seeks damages against Defendants in their official capacities, he may

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Plaintiff additionally requests that all Defendants be dismissed from CDCR employment. However, the Court has no
jurisdiction to entertain such a request.

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not do so. “The Eleventh Amendment bars suits for money damages in federal court against a state,

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its agencies, and state officials in their official capacities.” Aholelei v. Dept. of Public Safety, 488

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F.3d 1144, 1147 (9th Cir. 2007) (citations omitted). Therefore, Plaintiff may not state claims

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against Defendants in their official capacities. See id.; see also Holt v. California Dept. of

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Corrections Medical Dept., No. 1:10-cv-00496-SKO PC, 2010 WL 4716761, at *2 (E.D. Cal. Nov.

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12, 2010) (dismissing a claim against the CDCR Medical Department because “[t]he [CDCR] is an

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agency entitled to Eleventh Amendment immunity; any claims against it are barred by the Eleventh

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Amendment.”). Accordingly, the Court will assume that Plaintiff seeks relief against Defendants in

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their individual capacities.
b. 42 U.S.C. § 1983

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Plaintiff’s allegations against Defendants seek to invoke the Civil Rights Act, codified at 42

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U.S.C. § 1983. The Civil Rights Act provides, in relevant part:
Every person who, under color of [state law] … subjects, or causes to be subjected, any
citizen of the United States … to the deprivation of any rights, privileges, or immunities
secured by the Constitution … shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress.

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42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides

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‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386,

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393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)).
i. Fourteenth Amendment – Due Process

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As described above, Plaintiff has alleged that White wrongfully seized and destroyed his

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personal property, and that Carr and Wilson were complicit in the deprivation of his personal

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property. ECF No. 1 at 5-6. The Court finds that these allegations attempt to state a violation of the

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Due Process Clause of the Fourteenth Amendment5, which protects prisoners from being deprived

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of their property without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974).

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Prisoners have a protected interest in their personal property. Hansen v. May, 502 F.2d 728,

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730 (9th Cir. 1974). Although an authorized, intentional deprivation of property is actionable under

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Although Plaintiff cited the Fifth Amendment in the Complaint, allegations of a private property deprivation in the state
prison context sound in the Fourteenth Amendment, not the Fifth Amendment. See, e.g., Estrada v. Grannis, No. 1:09-cv01079-AWI-GBC PC, 2010 WL 5394750, at *2-3 (E.D. Cal. Dec. 22, 2010).

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the Due Process Clause, see Hudson v. Palmer, 468 U.S. 617m 532 n. 13 (1984), neither negligent

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nor unauthorized deprivations of property by a governmental employee “constitute a violation of

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the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a

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meaningful post-deprivation remedy for the loss is available.” Hudson, 468 U.S. at 533. Where the

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state provides a meaningful post-deprivation remedy (e.g., as in California, a common law state tort

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action against a correctional employee in his personal capacity), only authorized, intentional

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deprivations of property by employees in their official capacities constitute actionable violations of

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the Due Process Clause. An authorized deprivation is one carried out pursuant to established state

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procedures, regulations, or statutes. Piatt v. McDougall, 773 F.2d 1032, 1036 (9th Cir. 1985); see

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also Knudson v. City of Ellensburg, 832 F.2d 1142, 1149 (9th Cir. 1987).

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California law provides a post-deprivation remedy for any property deprivations. See Cal.

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Gov’t Code. §§ 810-895; Barnett v. Centoni, 32 F.3d 813, 816-17 (9th Cir. 1994). The California

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Government Claims Act requires that a tort claim against a public employee be presented to the

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California Victim Compensation and Government Claims Board no more than six months after the

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cause of action accrues. Cal Gov’t Code §§ 905.2, 910, 911.2, 945.4, 950-950.2. Presentation of a

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written claim, and action on or rejection of the claim are conditions precedent to suit. State v.

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Superior Court of Kings Cty (Bodde), 90 P.3d 116, 124 (2004); Mangold v. Cal. Pub. Utils.

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Comm’n., 67 F.3d 1470, 1477 (9th Cir. 1995). To state a tort claim against a public employee, a

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plaintiff must allege compliance with the Government Claims Act. Bodde, 90 P.3d at 121;

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Mangold, 67 F.3d at 1477.

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Here, because there is no indication in the Complaint that Plaintiff’s property was taken

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because of an established state procedure, Plaintiff’s allegations can only be construed as an

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unauthorized intentional deprivation. These types of actions only constitute a violation of due

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process if a meaningful post-deprivation remedy for Plaintiff’s loss is unavailable. Hudson, 468

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U.S. at 533. The Government Claims Act provides such a remedy for Plaintiff. See Barnett, 32 F.3d

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at 816-17.

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For these reasons, the Court finds that Plaintiff has failed to state a cognizable claim against

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any of the Defendants under Due Process Clause of the Fourteenth Amendment. Furthermore, since
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it is obvious that Plaintiff cannot prevail on the facts he has alleged under the Fourteenth

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Amendment, it would be futile to give him an opportunity to amend this allegation. See Lopez v.

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Smith, 203 F.3d 1122, 1128-30 (9th Cir. 2000).
ii. First Amendment – Retaliation

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Plaintiff further alleges that White confiscated his books to retaliate against him for filing

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two inmate appeals against White, and that Wilson and Carr colluded with White in this retaliation,

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in violation of the First Amendment. ECF No. 1 at 5-6.

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“Prisoners have a First Amendment right to file grievances against prison officials and to be

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free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012). To state

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a viable First Amendment retaliation in the prison context, a plaintiff must allege: (1) an assertion

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that a state actor took some adverse action against him; (2) because of (3) his protected conduct,

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and that such action (4) chilled his exercise of his First Amendment rights, and (5) the action did

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not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68

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(9th Cir. 2005).

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Construing Plaintiff’s allegations liberally, Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th

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Cir. 2007), the Court finds that Plaintiff states a cognizable claim for First Amendment retaliation

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against all Defendants. Plaintiff’s filing of grievances against White is a protected action under the

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First Amendment. Watison, 668 F.3d at 1115. White’s confiscation of Plaintiff’s personal property,

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and Wilson and Carr’s collusion with White to circumvent Plaintiff’s grievances against White

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constitute adverse actions against Plaintiff. See Hardy v. 3 Unknown Agents, 690 F. Supp. 2d. 1074,

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1103 (C.D. Cal. 2010) (citing Pinard v. Clatskanie School Dist., 467 F.3d 755, 770 (9th Cir. 2006)

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for the proposition that “[a]dverse action is action that ‘would chill a person of ordinary firmness’

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from engaging in that activity.’”). Furthermore, at this stage of the proceedings, the Court must

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accept as true Plaintiff’s allegations that Defendants took these actions because of his attempt to

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exercise his First Amendment rights, and therefore lacked a legitimate correctional goal. See

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Watison, 668 F.3d at 1114-15. Because Defendants’ actions “would chill a person of ordinary

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firmness” from engaging in the exercise of his First Amendment rights, the Court will permit

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Plaintiff to proceed with this claim.
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iii. Conspiracy

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Plaintiff has also alleged a conspiracy between all three Defendants. ECF No. 1 at 5-6.

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To state a conspiracy claim under § 1983, a plaintiff must allege, first, that defendants

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reached an agreement or a meeting of the minds to violate his constitutional rights, and second, that

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they took some concerted action in furtherance thereof. Crowe v. Cty of San Diego, 608 F.3d 406,

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440 (9th Cir. 2010). Although each of the defendants does not need to know the exact details of the

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plan, each defendant must share the “common objective of the conspiracy.” Id. (quoting United

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Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1541 (9th Cir. 1989)).

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Here, while inartfully pleaded, the Complaint appears to allege the existence of an

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agreement among White, Carr, and Wilson, which had the objective of thwarting the inmate

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grievances Plaintiff filed against White. ECF No. 1 at 5-6. Plaintiff alleged that Carr “condoned

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White’s malfeasance, retaliatory conduct, and actions [in confiscating and destroying Plaintiff’s

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property.” Id. at 6. Furthermore, Plaintiff alleged that White colluded with Wilson, as Wilson

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conducted the second-level review of the order from CDCR’s Sacramento office that had denied

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Wilson’s request to place Plaintiff’s books on the Disapproved List. Id. Ultimately, taking

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Plaintiff’s allegations as true, it appears that Defendants’ actions resulted in both the confiscation

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and destruction of Plaintiff’s books, CDs, and JWIN radio, and the denial of three of his inmate

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grievances. Id. Therefore, the Court will permit Plaintiff to proceed on this claim.

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Conclusion and Orders

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The Court finds that the Complaint states cognizable claims against all Defendants for a

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violation of Plaintiff’s First Amendment right to file grievances against prison officials and to be

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free from retaliation for doing so, and for a conspiracy under § 1983.

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Based on the foregoing, it is HEREBY ORDERED that:

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1. Plaintiff’s Fourteenth Amendment Due Process Claim be DISMISSED WITHOUT

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LEAVE TO AMEND;
2. By no later than October 25, 2016, Plaintiff is required to file a written response to the

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Court’s notifying the Court that he is willing to proceed only on the claims found

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cognizable in this Order, for First Amendment Retaliation and § 1983 Conspiracy;
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3. Plaintiff’s failure to comply with this Order will result in the dismissal of this case for

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failing to comply with a Court order and failure to prosecute. The Court also cautions

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Plaintiff that failure to comply with the Federal Rules of Civil Procedure, this Court’s

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Local Rules, or any court order may result in this action being dismissed. See E.D. Cal.

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L.R. 110.
IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

September 21, 2016

UNITED STATES CHIEF DISTRICT JUDGE
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