Haraszewski v. Knipp

Filing 51

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 2/27/2018 ORDERING the 43 Order filed 11/7/2017 is VACATED; the 47 Order, Findings and Recommendations filed 12/28/2017 is VACATED; plaintiff's 46 motion to amend is GRANTED. This case will proceed on the claims stated in this order and service is appropriate for defendants Austin, Casagrande, Dowdy, Garcia, Lucca, Reese, Sherlock, and Sepulveda. The Clerk shall send plaintiff forms for service t o be completed and returned within 30 days, along with the Notice of Submission. IT IS RECOMMENDED that plaintiff's claims against defendants B. Alkire, J. Lizarraga, and P. Vanni be dismissed. Referred to Judge John A. Mendez; Objections to F&R due within 14 days. (See Order for Details)(Yin, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 H. DYMITRI HARASZEWSKI, 12 Plaintiff, 13 14 No. 2:13-cv-2494 JAM DB P v. AMENDED ORDER AND FINDINGS AND RECOMMENDATIONS KNIPP, et al., 15 Defendants. 16 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights 17 18 action under 42 U.S.C. § 1983. Plaintiff alleges defendants retaliated against him, interfered with 19 his mail, placed him in segregation as a punitive measure, and deprived him of his property. On 20 December 2017, this court issued an Order and Findings and Recommendations granting 21 plaintiff’s motion to amend his third amended complaint and recommending dismissal of a 22 number of clams. Plaintiff filed objections. He argues that he has alleged a claim for deprivation 23 of property. Upon review of the objections, and for the reasons set forth below, this court finds 24 plaintiff has a potentially cognizable claim on that basis. Accordingly, to clarify the record, the 25 court will vacate both its November 7, 2017 Order and its December 28, 2017 Order and Findings 26 and Recommendations and replace them with this Amended Order and Findings and 27 Recommendations. 28 //// 1 The court considers here plaintiff’s third amended complaint for screening and his motion 1 2 to amend the third amended complaint. For the reasons set forth below, the court finds plaintiff 3 has stated potentially cognizable claims against some defendants, recommends dismissal of other 4 claims and defendants, and orders service of the third amended complaint. 5 I. Allegations of the Third Amended Complaint1 Plaintiff is incarcerated at Mule Creek State Prison (“MCSP”) and his allegations involve 6 7 conduct occurring there. Plaintiff identifies the following defendants: Ray Garcia, Mailroom 8 Supervisor; D. Casagrande, Mailroom Supervisor; J. Dowdy, Mailroom Supervisor; T. Reece, 9 mailroom employee; K. Sherlock, mailroom employee; B. Alkire, “CSR;” J. Lizarraga, “CDW 10 (A) Chairperson;” P. Vanni, “AW;” Lieutenant Austin; Sergeant Sepulveda; and five unnamed 11 defendants identified by plaintiff as “Yard Officer A;” “Yard Officer B;” “ISU Officer 1;” “ISU 12 Sergeant 2;” and “ISU Lieutenant 3.” (ECF No. 42 at 1.) 13 Plaintiff states that he is alleging four claims: (1) punitive segregation; (2) taking property 14 as punishment; (3) threats of violence in retaliation for the exercise of First Amendment rights; 15 and (4) mail tampering. First, plaintiff contends that on November 26, 2011 he was removed 16 from his cell by “Officers A & B,” whose names he does not recall. (ECF No. 42 at 3.) Those 17 officers also removed a large bag of papers, books, and photos. The officers then processed 18 plaintiff for placement in segregated housing. (Id. at 4.) Plaintiff was told to sign a 114D 19 “placement notice.” He refused to sign it because it stated only that he was being investigated as 20 a “threat to the safety and security” of the prison due to his possession of “harassing materials.” 21 (Id.) He had three formal hearings, one interrogation, and two informal discussions with Captain 22 Harrington, but no one has provided an explanation for his placement in segregation. Plaintiff 23 contends Captain Harrington admitted to him that the 114D form did not provide sufficient 24 reasons for his placement in segregated housing. Plaintiff quotes a document dated December 14, 25 2011 and signed by “B. Alkire.” The document states that the 114D “does not provide sufficient 26 27 28 Because the court has previously screened plaintiff’s first and second amended complaints, the standards for screening are not restated here. (See Dec. 16, 2015 Order (ECF No. 16); Nov. 15, 2016 Order (ECF No. 29); Mar. 8, 2017 Order (ECF No. 33).) 2 1 1 information to the inmate to afford him the opportunity to present a defense . . . . the action of 2 12-1-11 indicates the inmates is being retained in ASU pending an investigation, however does 3 not clearly document or identify the reason for the investigation and fails to provide justification 4 for continued ASU placement. A new CDC 114D should be issued to document the current and 5 correct reasons for retention in ASU.” (Id.) Plaintiff states that he never received a new 114D. 6 He was released from segregation on December 31, 2011. 7 Plaintiff states that he believes defendant Sergeant Sepulveda ordered the confiscation of 8 his property. He believes defendant Lieutenant Austin, who signed the “lock-up order,” is 9 responsible for his segregation but he does not know where Austin may have gotten information 10 11 that provided a basis for the segregation. (Id. at 5-6.) Plaintiff further states that defendants Alkire, Vanni, and Lizarraga “would seem to know 12 a lot as well” because their names “appear on classification documents that confirm a lack of 13 evidence for keeping me segregated.” (Id. at 5.) 14 He contends three ISU officers threatened him during the November 29, 2011 15 interrogation while he was in segregation. They told plaintiff that if he did not stop complaining 16 about the seizure of his property and his segregation, he would experience “police harassment” 17 and would be transferred to a “real prison, where people like you get their teeth knocked out 18 every day.” (Id. at 7.) 19 Thereafter, plaintiff spent several months attempting to have his seized property returned. 20 (Id. at 6.) In April 2012, one of the three ISU officers who had interrogated him in November 21 and defendant Sepulveda confronted him about his requests. The ISU officer told plaintiff to 22 “stop sending fucking paperwork,” that plaintiff had already received his property, and “snarl[ed] 23 ‘I already gave you your shit back and now I told you to get the fuck out, and I won’t tell you 24 again.’” (Id.) Plaintiff states that he had only received three pages of the hundreds of pages of 25 documents seized. However, because he feared retaliation from the ISU officer, he stopped trying 26 to get his other property returned. (Id. at 6-7.) 27 Plaintiff finally contends he has been subjected to tampering and withholding of his mail 28 over the last several years. First, he contends the habeas corpus petition he mailed when he was 3 1 in segregated housing on December 11, 2011, was not mailed to the court until August 2012. 2 (ECF No. 42 at 8.) He also contends that he put nine other letters out for mailing on December 3 11, 2011 and none of them were placed in the mail until August 2012. Plaintiff states that 4 defendant Ray Garcia, the mailroom supervisor at the time, was responsible. He also states that it 5 is “likely that other staff” were involved. (Id.) Plaintiff claims that 40% of his mail has been affected in various ways over “half a 6 7 decade.” (ECF No. 42 at 9.) He specifically identifies a batch of seven letters he received on 8 July 12, 2017, some of which had been sent up to sixteen days prior. He also identifies two books 9 he was sent as Christmas gifts in 2013 that he never received. (Id.) Plaintiff specifically 10 identifies: (1) defendant Garcia as responsible for failing to mail the ten letters when plaintiff 11 was in segregation in December 2011; (2) defendants Garcia and Reese for failing to deliver 12 numerous magazines and letters, improperly opening his mail outside his presence, and delaying 13 both incoming and outgoing mail during the time period December 2011 through December 14 2013; (3) defendants Casagrande and Sherlock for delaying his mail, rejecting magazines and 15 letters without notification to plaintiff, removing pages from letters without notification to 16 plaintiff, and rejecting a book during the time period January 2014 to January 2015; and (4) 17 defendant Dowdy for delay in incoming and outgoing mail, non-delivery of numerous letters and 18 magazines, and refusal to deliver a book since January 2015. (Id. at 10.) 19 Plaintiff seeks the following relief: (1) an injunction preventing future mail tampering; (2) 20 an injunction preventing future retaliatory action; (3) punitive damages; and (4) compensatory 21 damages. (ECF No. 42 at 3.) 22 23 II. Does Plaintiff State Claims Cognizable under 42 U.S.C. § 1983? A. Placement in Segregation 24 Assignment to segregation is an administrative measure rather than a disciplinary measure 25 and is “essentially a matter of administrative discretion.” Bruce v. Ylst, 351 F.3d 1283, 1287 (9th 26 Cir. 2003) (quoting Munoz v. Rowland, 104 F.3d 1096, 1098 (9th Cir. 1997)). To satisfy due 27 process, the administrative segregation process must include an informal non-adversary hearing 28 within a reasonable time after being segregated, notice of the charges or the reasons segregation is 4 1 being considered, and an opportunity for the inmate to present his views. Toussaint v. McCarthy, 2 801 F.2d 1080, 1100 (9th Cir. 1986), abrogated in part on other grounds by Sandin v. Connor, 3 515 U.S. 472, 481 (1995). “We specifically find that the due process clause does not require 4 detailed written notice of charges.” Toussaint, 801 F.2d at 1100–01. However, due process does 5 require notice that is sufficient to allow the inmate to have a “meaningful” opportunity to be 6 heard. See Reyes v. Horel, No. C 08-4561 RMW, 2012 WL 762043, at *7-8 (N.D. Cal. Mar. 7, 7 2012). 8 9 The gist of plaintiff’s claim appears to be that the notice he was given was insufficient to permit him to defend himself at the hearing. Plaintiff states that the notice provided stated only 10 that he was being investigated as a “threat to the safety and security” of the prison due to his 11 possession of “harassing materials.” Plaintiff further states that defendant Austin signed this 12 notice. The court finds that, liberally construing the complaint, plaintiff has stated a potentially 13 cognizable due process claim against defendant Austin for lack of adequate notice of the basis for 14 his placement in segregation. 15 Plaintiff has not stated claims against defendants Alkire, Vanni, and Lizarraga. He states 16 only that because those defendants signed some of the classification documents, they “would 17 seem to know a lot as well.” Plaintiff only speculates about the roles of these defendants in his 18 segregation and alleges no action, only knowledge, on their part. Plaintiff has not sufficiently 19 connected these three defendants to any deprivation of his constitutional rights. Accordingly, 20 they will be dismissed from this case. 21 Further, plaintiff has not stated claims against the unnamed “yard officers” who removed 22 him from his cell. With respect to this challenge to the notice of his segregation, plaintiff does 23 not explain how those officers had any responsibility for that notice. 24 25 B. Deprivation of Property Plaintiff alleges that his property was taken during an investigation as punishment by 26 defendant Sepulveda, and, it appears, by Yard Officers A and B. He contends that because the 27 initial seizure of his property was accomplished for purposes of an investigation, it must have 28 been done pursuant to a prison policy or established procedure. Plaintiff states a potentially 5 1 cognizable due process claim for deprivation of his property. Hudson v. Palmer, 468 U.S. 517, 2 533 (1984). Plaintiff will be permitted to proceed on this claim against defendant Sepulveda. If 3 plaintiff learns the identities of the Doe defendants involved, he may seek to add them to this 4 action at that time. 5 6 C. Retaliation Plaintiff alleges that he was subjected to threats of violence in retaliation for filing claims 7 for the return of his property. Allegations of retaliation against a prisoner’s First Amendment 8 rights may support a § 1983 claim. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also 9 Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 10 (9th Cir. 1995). A retaliation claim requires “five basic elements: (1) An assertion that a state 11 actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected 12 conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and 13 (5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 14 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted); accord Watson v. Carter, 668 F.3d 1108, 15 1114-15 (9th Cir. 2012); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). 16 In his third amended complaint, plaintiff alleges he was threatened at the November 29, 17 2011 interrogation by three unidentified ISU officers to stop complaining about the return of his 18 property or he would be subjected to police harassment. However, plaintiff does not allege that 19 those threats caused him to stop trying to get his property back. Rather, it was after the April 20 2012 interrogation when one of these ISU officers told plaintiff to “stop sending fucking 21 paperwork,” and “snarl[ed] ‘I already gave you your shit back and now I told you to get the fuck 22 out, and I won’t tell you again.’” Plaintiff appears to be alleging that the combination of these 23 threats caused him to stop attempting to have his property returned. A threat of harm is sufficient 24 to support a retaliation claim. See Watison v. Carter, 668 F.3d 1108, 1115-16 (9th Cir. 2012) 25 (allegation that officer “threatened to hit [the plaintiff] in the mouth for a complaint [he] was in 26 the process of filing against [the officer]” is sufficient to allege retaliation claim); Gleason v. 27 Franklin, No. CV 15-8380-CBM (DFM), 2017 WL 3203404, at *5 (C.D. Cal. May 16, 2017), 28 rep. and reco. adopted, 2017 WL 3197226 (C.D. Cal. July 26, 2017). 6 1 Plaintiff has sufficiently alleged a claim of retaliation against the one ISU officer who was 2 involved in both the November 2011 interrogation and the April 2012 interrogation. Plaintiff 3 shows that threats at the two interrogations were made by that officer as a result of plaintiff’s 4 exercise of his First Amendment rights to have his property returned. He further shows that the 5 officer’s threats caused plaintiff to stop seeking the return of his property. Plaintiff does not, 6 however, allege any action taken by defendant Sepulveda in retaliation for his attempts to have 7 his property returned. Further, he has not alleged a cognizable retaliation claim against the two 8 other ISU officers involved in only the November 2011 interrogation because he has not shown 9 that their threats resulted in a chilling of his First Amendment rights. 10 The court originally made this finding that plaintiff stated a cognizable retaliation claim 11 against one unnamed ISU officer in its November 7, 2017 order. (ECF No. 43 at 6-7 .) On 12 December 20, 2017, plaintiff filed a motion to amend the third amended complaint to identify that 13 officer as Officer Lucca. (ECF No. 46.) Plaintiff’s motion to amend will be granted. 14 15 D. Interference with Mail 1. Legal Standards 16 With respect to incoming prisoner mail, prison officials have a responsibility to forward 17 mail to inmates promptly. See Bryan v. Werner, 516 F.2d 233, 238 (3d Cir. 1975). Allegations 18 that mail delivery was delayed for an inordinate amount of time and allegations of a pattern of 19 interference with mail are sufficient to state a claim for violation of the First Amendment. See 20 Antonelli v. Sheahan, 81 F.3d 1422, 1432 (7th Cir. 1996); Calihan v. Adams, No. 1:09-CV-1373 21 MJS (PC), 2011 WL 284467, at *3 (E.D. Cal. Jan. 26, 2011) (ongoing delays of between 21 and 22 35 days in receiving incoming mail sufficiently long to substantially burden plaintiff’s First 23 Amendment rights and chill his exercise of free speech). Any practice or regulation that unduly 24 delays an inmate's incoming mail must be reasonably related to legitimate penological interests. 25 See Turner v. Safley, 482 U.S. 78, 89 (1987). But a temporary delay or isolated incident of delay 26 does not violate a prisoner's First Amendment rights. See Crofton v. Roe, 170 F.3d 957, 961 (9th 27 Cir. 1999) (policy of diverting publications through property room reasonably related to prison's 28 interest in inspecting mail for contraband). 7 1 Prisoners also have a procedural due process right to be notified that incoming mail is 2 being withheld. “[W]ithhold[ing] delivery of [inmate mail] must be accompanied by minimum 3 procedural safeguards.” Procunier v. Martinez, 416 U.S. 396, 417 (1974), overruled on other 4 grounds by Thornburgh v. Abbott, 490 U.S. 401, 413–14 (1989); Krug v. Lutz, 329 F.3d 692, 698 5 (9th Cir. 2003). However, to state a due process claim, a prisoner must also allege that the failure 6 to provide notice was “caused by conduct pursuant to established state procedure, rather than 7 random and unauthorized action.” Sorrels v. McKee, 290 F.3d 965, 972 (9th Cir. 2002). 8 9 Prisoners also have a right to send mail. A practice of censoring outgoing mail is only justified if the following criteria are met: (1) the practice or regulation furthers “an important or 10 substantial government interest unrelated to the suppression of expression” and (2) “the limitation 11 on First Amendment freedoms must be no greater than is necessary or essential to the protection 12 of the particular governmental interest involved.” Procunier, 416 U.S. at 413. 13 Finally, to the extent that plaintiff claims that the interference with his mail also violated 14 applicable regulations or policies, there is no implied private right to sue civilly for violation of 15 Title 15 of the California Code of Regulations or prison regulations. See e.g., Vasquez v. Tate, 16 No. 1:10-cv-1876-JLT (PC), 2012 WL 6738167, at *9 (E.D. Cal. Dec. 28, 2012); Davis v. 17 Powell, 901 F. Supp. 2d 1196, 1211 (S.D. Cal. 2012). 18 2. Does Plaintiff State a Cognizable Claim for Interference with his Mail? 19 Plaintiff contends defendants Garcia, Reese, Casagrande, Sherlock, and Dowdy were 20 responsible for the various instances of interference with his mail described above. Plaintiff 21 alleges these defendants delayed both incoming and outgoing mail, withheld incoming mail from 22 plaintiff without notice, and tampered with some incoming mail. Liberally construing the 23 complaint, the court finds plaintiff has minimally alleged potentially cognizable First Amendment 24 claims of interference with his mail. The court further finds that plaintiff’s allegations of an 25 ongoing practice of failing to provide plaintiff notice that his mail was being withheld is sufficient 26 to create an inference that the prison has had a policy or practice of failing to notify plaintiff of 27 his withheld mail in violation of his due process rights. 28 //// 8 1 2 III. Leave to Amend After more than four years, and the filing of four complaints, the court finds plaintiff has 3 stated cognizable claims against some defendants. The court will recommend dismissal of the 4 claims against the remaining defendants without leave to amend. Plaintiff has had numerous 5 opportunities to state claims. The court finds that further opportunities would be fruitless and 6 further delay these proceedings. 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. The Order filed November 7, 2017 (ECF No. 43) is vacated. 9 2. The Order and Findings and Recommendations filed December 28, 2017 (ECF 10 No. 47) are vacated. 11 3. Plaintiff’s motion to amend (ECF No. 46) is granted. 12 4. This case will proceed on the following claims: (a) plaintiff’s due process 13 claim that defendant Austin failed to provide adequate notice for his placement 14 in administrative segregation in December 2011; (b) plaintiff’s claim for 15 property deprivation against defendant Sepulveda; (c) plaintiff’s First 16 Amendment and due process claims for mail interference against defendants 17 Garcia, Reese, Casagrande, Sherlock, and Dowdy; and (d) plaintiff’s First 18 Amendment claim for retaliation against defendant Lucca. Service of the third 19 amended complaint is thus appropriate for defendants Austin, Sepulveda, 20 Garcia, Reese, Casagrande, Sherlock, Dowdy, and Lucca. 21 5. The Clerk of the Court shall send plaintiff eight USM-285 forms, one 22 summons, an instruction sheet, and a copy of the third amended complaint filed 23 July 21, 2017. 24 6. Within thirty days from the date of this order, plaintiff shall complete the 25 attached Notice of Submission of Documents and submit all of the following 26 documents to the court at the same time: 27 a. The completed, signed Notice of Submission of Documents; 28 b. One completed summons; 9 1 c. One completed USM-285 form for each defendant listed in number 4 2 above; and 3 d. Nine copies of the endorsed third amended complaint filed July 21, 4 5 2017. 7. Plaintiff shall not attempt to effect service of the complaint on any defendant or 6 request a waiver of service of summons from any defendant. Upon receipt of 7 the above-described documents, the court will direct the United States Marshal 8 to serve the above-named defendant pursuant to Federal Rule of Civil 9 Procedure 4 without payment of cost. 10 11 12 Further, IT IS HEREBY RECOMMENDED that plaintiff’s claims against defendants B. Alkire, J. Lizarraga, and P. Vanni be dismissed. These findings and recommendations will be submitted to the United States District Judge 13 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 14 after being served with these findings and recommendations, plaintiff may file written objections 15 with the court. The document should be captioned “Objections to Magistrate Judge's Findings 16 and Recommendations.” Plaintiff is advised that failure to file objections within the specified 17 time may result in waiver of the right to appeal the district court’s order. Martinez v. Ylst, 951 18 F.2d 1153 (9th Cir. 1991). 19 Dated: February 27, 2018 20 21 22 23 DLB:9 DLB1/prisoner-civil rights/hara2494.tac mta.am fr 24 25 26 27 28 10 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 H. DYMITRI HARASZEWSKI, 12 13 14 No. 2:13-cv-2494 JAM DB P Plaintiff, v. NOTICE OF SUBMISSION KNIPP, et al., 15 Defendants. 16 17 18 Plaintiff submits the following documents in compliance with the court's order filed _____________________: 19 ____ completed summons form 20 ____ completed USM-285 forms 21 ____ copies of the Third Amended Complaint 22 23 24 25 DATED: ________________________________ _________________ _____ Plaintiff 26 27 28 11

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