Greene v. Solano County Jail et al

Filing 9

ORDER signed by Magistrate Judge Edmund F. Brennan on 9/10/15 ORDERING that Plaintiff's 2 request to proceed in forma pauperis is GRANTED. Plaintiff's 7 request for appointment of counsel is DENIED without prejudice. The complaint is dismissed with leave to amend within 30 days. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ADOLPH PATRICK GREENE,

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Plaintiff,

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No. 2:14-cv-1980-EFB P

v.
SOLANO COUNTY JAIL, et al.,

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ORDER GRANTING IFP AND DISMISSING
COMPLAINT WITH LEAVE TO AMEND
PURSUANT TO 28 U.S.C. § 1915A

Defendants.

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Plaintiff is a former county inmate proceeding without counsel in an action brought under

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42 U.S.C. § 1983.1 In addition to filing a complaint, he has filed an application to proceed in

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forma pauperis (IFP) pursuant to 28 U.S.C. § 1915, and a request for appointment of counsel. His

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IFP application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). Accordingly, his

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request for leave to proceed in forma pauperis is granted.

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I.

Request for Appointment of Counsel
District courts lack authority to require counsel to represent indigent prisoners in section

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1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional

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circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28

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This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.
§ 636(b)(1) and is before the undersigned pursuant to plaintiff’s consent. See E.D. Cal. Local
Rules, Appx. A, at (k)(4).
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U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v.

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Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional

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circumstances” exist, the court must consider the likelihood of success on the merits as well as the

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ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues

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involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Having considered those factors,

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the court finds there are no exceptional circumstances in this case.

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II.

Screening Requirement and Standards

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion

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of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which

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relief may be granted,” or “seeks monetary relief from a defendant who is immune from such

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relief.” Id. § 1915A(b).

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A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a)

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of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and

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plain statement of the claim showing that the pleader is entitled to relief, in order to give the

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defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v.

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Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)).

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While the complaint must comply with the “short and plaint statement” requirements of Rule 8,

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its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556

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U.S. 662, 679 (2009).

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To avoid dismissal for failure to state a claim a complaint must contain more than “naked

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assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of

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action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of

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a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at

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678.

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Furthermore, a claim upon which the court can grant relief must have facial plausibility.
Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual
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content that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a

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claim upon which relief can be granted, the court must accept the allegations as true, Erickson v.

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Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the

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plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

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III.

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Screening Order
The court has reviewed plaintiff’s complaint (ECF No. 1) pursuant to § 1915A and finds

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that it must be dismissed with leave to amend for failure to state a claim. Plaintiff alleges that his

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request for legal envelopes and a pen and paper were denied with instructions to obtain supplies

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from the canteen, or to use the personal letter envelopes that are given to indigent inmates.

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Plaintiff does not allege if or why the personal letter envelopes were inadequate. He claims that

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he subsequently attempted to file in state court an application for a writ about the denial of legal

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envelopes, but the envelope was returned to him because of insufficient postage. Plaintiff then

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submitted another request to jail officials for “supplies” but that request was denied. Plaintiff

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alleges that his mail was opened outside his presence in violation of his right to confidentiality.

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He seeks 4.5 million dollars in damages. The complaint lists the Solano County Sherriff, the

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Solano County Jail, and Thomas A. Ferrara as defendants. The complaint is devoid of any

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allegations linking any of these defendants to any violation of plaintiff’s federal rights. Under the

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applicable legal standards, discussed below, the complaint must be dismissed for failure to state a

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claim. To proceed, plaintiff must file an amended complaint.

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1)

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that a right secured by the Constitution or laws of the United States was violated, and (2) that the

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alleged violation was committed by a person acting under the color of state law. West v. Atkins,

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487 U.S. 42, 48 (1988). An individual defendant is not liable on a civil rights claim unless the

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facts establish the defendant’s personal involvement in the constitutional deprivation or a causal

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connection between the defendant’s wrongful conduct and the alleged constitutional deprivation.

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See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44

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(9th Cir. 1978). That is, plaintiff may not sue any official on the theory that the official is liable
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for the unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 556 U.S. 662, 679

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(2009). In sum, plaintiff must identify the particular person or persons who violated his rights.

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He must also plead facts showing how that particular person was involved in the alleged

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violation.

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A municipal entity or its departments is liable under section 1983 only if plaintiff shows

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that his constitutional injury was caused by employees acting pursuant to the municipality’s

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policy or custom. Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429 U.S. 274, 280 (1977);

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Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978); Villegas v. Gilroy Garlic

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Festival Ass'n, 541 F.3d 950, 964 (9th Cir. 2008). Here, plaintiff fails to state a claim against the

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Solano County Sherriff or the Solano County Jail because he has not sufficiently alleged that he

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was injured as a result of employees acting pursuant to any policy or custom of the County.

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Local government entities may not be held vicariously liable under section 1983 for the

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unconstitutional acts of its employees under a theory of respondeat superior. See Board of Cty.

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Comm'rs. v. Brown, 520 U.S. 397, 403 (1997).

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Prisoners enjoy a First Amendment right to send and receive mail and to petition the

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government for redress of grievances. Thornburgh v. Abbott, 490 U.S. 401, 407 (1989); O’Keefe

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v. Van Boening, 82 F.3d 322, 325 (9th Cir. 1996); Witherow v. Paff, 52 F.3d 264, 265 (9th Cir.

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1995). However, a prison may adopt regulations that impinge on an inmate’s constitutional rights

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if the regulations are reasonably related to legitimate penological interests. Turner v. Safley, 482

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U.S. 78, 89 (1987); Witherow, 52 F.3d at 265. Regulations impacting outgoing mail must more

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closely fit their purposes than those impacting incoming mail, but in neither instance must the

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regulation be the least restrictive means of achieving its purpose. Thornburgh, 490 U.S. at 412;

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Witherow, 52 F.3d at 265.

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States must provide indigent prisoners with stamps to mail legal documents. Bounds v.

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Smith, 430 U.S. 817, 824 (1977). “Legal mail” in the context of the First Amendment generally

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applies to correspondence between a prisoner and his attorney or mail sent from a prisoner to a

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court. See Wolff v. McDonnell, 418 U.S. 539, 575-76 (1974); Keenan v. Hall, 83 F.3d 1083, 1094

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(9th Cir. 1996). Prisons have a legitimate interest in controlling the amount of postage they
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provide to indigent inmates. Semeneck v. Ahlin, No. 1:09-cv-00566 JLT (PC), 2010 U.S. Dist.

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LEXIS 125075, at *16 (E.D. Cal. Nov. 16, 2010) (noting that an inmate does not have a

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constitutional right to free postage simply because he is sending documents to courts, public

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officers, or lawyers); Rodriguez v. Stone, No. 1:06-cv-00663-OWW-SMS PC, 2007 U.S. Dist.

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LEXIS 95789, at *8 (E.D. Cal. Dec. 6, 2007) (same); Shock v. Vonbiela, No. C-93-3371 MHP,

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1994 U.S. Dist. LEXIS 11350, at *2-5 (N.D. Cal. Aug. 2, 1994) (granting summary judgment to

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defendant correctional officer on plaintiff’s allegations that the officer refused to provide state-

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paid postage for plaintiff’s letters to a senator).

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Prisoners enjoy a First Amendment right of access to the courts. Bounds, 430 U.S. at 821.

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An inmate alleging a violation of his right to access the courts must show that he suffered an

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actual injury. Lewis v. Casey, 518 U.S. 343, 349-51 (1996). That is, he must allege that the

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deprivation actually injured his litigation efforts, in that the defendant hindered his efforts to

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bring, or caused him to lose, an actionable claim challenging his criminal sentence or conditions

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of confinement. See id. at 351; Christopher v. Harbury, 536 U.S. 403, 412-15 (2002).

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Prison officials may open and inspect, but not read, a prisoner’s legal mail. Nordstrom v.

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Ryan, 762 F.3d 903 (9th Cir. 2014). An isolated incident of mail interference or tampering is

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usually insufficient to establish a constitutional violation. Davis v. Goord, 320 F.3d 346, 351 (2d

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Cir. 2003); see also Crofton v. Roe, 170 F.3d 957, 961 (9th Cir. 1999) (temporary delay or

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isolated incident of delay of mail does not violate a prisoner’s First Amendment rights); Witherow

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v. Paff, 52 F.3d 264, 266 (9th Cir. 1995) (per curiam) (First Amendment not violated where

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prison’s mail regulation related to a legitimate penological interest).

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Moreover, there are no constitutional requirements regarding how a grievance system is

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operated. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding that prisoner’s

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claimed loss of a liberty interest in the processing of his appeals does not violate due process

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because prisoners lack a separate constitutional entitlement to a specific prison grievance system).

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Thus, plaintiff may not impose liability on a defendant simply because he played a role in

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processing plaintiff’s inmate appeals. See Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993)

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(an administrative “grievance procedure is a procedural right only, it does not confer any
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substantive right upon the inmates. Hence, it does not give rise to a protected liberty interest

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requiring the procedural protections envisioned by the fourteenth amendment. . . . Thus,

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defendants’ failure to process any of Buckley’s grievances, without more, is not actionable under

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section 1983.” (internal quotations omitted)).

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Here, plaintiff’s allegations are too vague and conclusory to demonstrate that any

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particular defendant violated his federal rights by denying him supplies or postage, or by

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interfering with his mail or access to the courts. Plaintiff will be granted leave to file an amended

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complaint, if plaintiff can allege a cognizable legal theory against a proper defendant and

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sufficient facts in support of that cognizable legal theory. Lopez v. Smith, 203 F.3d 1122, 1126-

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27 (9th Cir. 2000) (en banc) (district courts must afford pro se litigants an opportunity to amend

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to correct any deficiency in their complaints). Should plaintiff choose to file an amended

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complaint, the amended complaint shall clearly set forth the claims and allegations against each

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defendant.

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Any amended complaint must not exceed the scope of this order and may not add new,

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unrelated claims. Further, any amended complaint must cure the deficiencies identified above

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and also adhere to the following requirements:

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Any amended complaint must identify as a defendant only persons who personally

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participated in a substantial way in depriving him of a federal constitutional right. Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a

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constitutional right if he does an act, participates in another’s act or omits to perform an act he is

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legally required to do that causes the alleged deprivation). It must also contain a caption

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including the names of all defendants. Fed. R. Civ. P. 10(a).

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Any amended complaint must be written or typed so that it so that it is complete in itself

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without reference to any earlier filed complaint. L.R. 220. This is because an amended

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complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the

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earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114

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F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter

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/////
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being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

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1967)).

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Finally, the court cautions plaintiff that failure to comply with the Federal Rules of Civil

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Procedure, this court’s Local Rules, or any court order may result in this action being dismissed.

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See Local Rule 110.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request to proceed in forma pauperis (ECF No. 2) is granted.

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2. Plaintiff’s request for appointment of counsel (ECF No. 7) is denied without prejudice.

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3. The complaint is dismissed with leave to amend within 30 days. The amended

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complaint must bear the docket number assigned to this case and be titled “First Amended

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Complaint.” Failure to comply with this order will result in this action being dismissed for failure

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to state a claim. If plaintiff files an amended complaint stating a cognizable claim the court will

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proceed with service of process by the United States Marshal.

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Dated: September 10, 2015.

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