Chance v. Cate et al

Filing 99

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT. Signed by Judge Richard Seeborg on 7/25/14. (Attachments: # 1 Certificate/Proof of Service)(cl, COURT STAFF) (Filed on 7/25/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

United States District Court
For the Northern District of California

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No. C 11-4279 RS (PR)

DAVID CHANCE,

ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT

Plaintiff,

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v.

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M. CATE, et al.,

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Defendants.
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INTRODUCTION
Plaintiff is a state prisoner proceeding pro se in this civil rights action brought under

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42 U.S.C. § 1983 in which he alleges that defendants Anthony, Brandon, Milligan, McGuyer,

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Pieren and Pimental, employees of Pelican Bay State Prison, violated his First and

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Fourteenth Amendment rights by confiscating several items of his incoming and outgoing

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mail. Defendants move for summary judgment. For the reasons stated herein, defendants’

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motion for summary judgment is GRANTED in favor of all defendants as to all claims.

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BACKGROUND

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The following facts are undisputed unless otherwise indicated. Plaintiff is an inmate

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at Pelican Bay State Prison and a validated member of the Aryan Brotherhood prison gang.

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(Defs.’ Mot. for Summ. J. (“MSJ”) at 1.) At all times relevant to this action, plaintiff was

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No. C 11-4279 RS (PR)
ORDER GRANTING MOT. FOR SUMM. J.

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housed in Pelican Bay’s Security Housing Unit (“SHU”) where inmates are subject to

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additional prison-mandated restrictions and conditions. (Am. Compl. at 9.) In particular,

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members of SHU: (1) are required to have all of their incoming and outgoing mail screened

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by an assigned Institutional Gang Investigation Officer; and (2) are forbidden from engaging

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in any form of income-producing business activity. (Id.)

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This action relates to ten pieces of plaintiff’s mail defendants withheld in 2007. In
December 2007, three pieces of plaintiff’s outgoing mail to “Jokes, c/o Easyriders”

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(“Easyriders”) and three pieces of outgoing mail to “Humor Editor at Larry Flynt

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Productions, Inc.” (“LFP”) were seized by defendant Milligan, a Pelican Bay correctional

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United States District Court
For the Northern District of California

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officer, because they: (1) contained glued-on items in violation of Pelican Bay Procedural

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Order 205; (2) contained jokes meant to be sold in furtherance of plaintiff’s unauthorized

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business; and (3) listed a fictitious return address. (MSJ at 6–9.) Plaintiff listed a fictitious

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return address on these mailing items in order, according to defendants, to circumvent

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Pelican Bay’s prohibition on plaintiff’s unauthorized business activity of selling jokes to

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magazines. (Id.) He listed his father’s address as the return address. So, rather than having

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the purchasers of his jokes (i.e. Easyriders and LFP) mail their payments directly to Pelican

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Bay, where prison guards would confiscate the proceeds during mail screening, the mail

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would be sent to his father, possibly to avoid confiscation of the proceeds. (Id.) Defendant

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Brandon, a correctional officer at Pelican Bay, authorized the withholding of these items.

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(Id. at 5.) Prison officials notified plaintiff of each of these mail stoppages by sending him

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“Stopped Mail Notifications.” (Id. at 6–9.)

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On June 6, December 6, and December 19, defendant Milligan also withheld incoming

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mail addressed to plaintiff from his father because these letters contained information about

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proceeds received by plaintiff’s father from plaintiff’s unauthorized joke-selling business.

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(Id.) In these letters, plaintiff’s father detailed: (1) the names of the companies that sent

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payments; (2) the amounts received; and (3) the check numbers posted on each of the

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received checks. (Id.) Defendant Anthony, a correctional officer, authorized the withholding

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No. C 11-4279 RS (PR)
ORDER GRANTING MOT. FOR SUMM. J.

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of the letter on June 6 and defendant Brandon authorized the withholding of the letters from

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December 6 and December 19. (Id. at 5.) Prison officials notified plaintiff of each of these

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mail stoppages by sending him “Stopped Mail Notifications.” (Id. at 6–9.)
Lastly, on December 3, 2007, defendant Milligan searched and withheld a piece of

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plaintiff’s outgoing mail to Brian Chance, plaintiff’s nephew. (Id. at 6.) This

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correspondence contained two cards each of which had pictures affixed to them using glue in

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violation of Pelican Bay Operating Procedure 205. (Id.) When Milligan inspected these

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items by separating the glued-on pictures from the cards he discovered that the glued-on

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pictures were being used to conceal writing underneath. (Id.) Defendant Brandon authorized

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For the Northern District of California

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the withholding of these items and plaintiff was issued a “Stopped Mail Notification.” (Id. at

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5–6.)

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In response to these stoppages, plaintiff filed a habeas petition with the Del Norte

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County Superior Court related to the same mail stoppages at issue in this case. (Id. at 12.) In

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that matter, he challenged prison officials’ denial of his request to engage in the business of

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selling jokes to magazines. (Id.) He specifically stated that he was disputing the December

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2007 confiscation of his outgoing mail to Easyriders and LFP as well as the December 2007

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confiscation of his incoming mail from his father. (Id.) Plaintiff also attached copies of the

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“Stopped Mail Notifications” for each of these items as evidence in support of his informal

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briefings on his habeas petition. (Id.)

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The superior court denied plaintiff’s petition and held that even if plaintiff’s

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constitutional rights were infringed by these mail stoppages, the prison’s actions were valid

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and constitutional because they advanced a “legitimate penological interest” in preventing

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petitioner from generating revenue that could be used to further the activities of the Aryan

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Brotherhood gang. (Defs.’ Request for Judicial Notice (Docket No. 48), Ex. B. at 5–7.) The

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state court also found that plaintiff’s freedom of expression was not infringed by a

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prohibition on his sale of jokes because plaintiff could still submit his jokes to magazines as

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long as he did not receive compensation for such submissions. (Id.)

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No. C 11-4279 RS (PR)
ORDER GRANTING MOT. FOR SUMM. J.

DISCUSSION

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I.

Standard of Review
Summary judgment is proper where the pleadings, discovery and affidavits

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demonstrate that there is “no genuine dispute as to any material fact and the movant is

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entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those

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which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

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248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a

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reasonable jury to return a verdict for the nonmoving party. Id.

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The party moving for summary judgment bears the initial burden of identifying those

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For the Northern District of California

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portions of the pleadings, discovery and affidavits which demonstrate the absence of a

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genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where

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the moving party will have the burden of proof on an issue at trial, it must affirmatively

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demonstrate that no reasonable trier of fact could find other than for the moving party. On an

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issue for which the opposing party by contrast will have the burden of proof at trial the

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moving party need only point out “that there is an absence of evidence to support the

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nonmoving party’s case.” Id. at 325.

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The court is only concerned with disputes over material facts and “factual disputes

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that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. It is not

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the task of the court to scour the record in search of a genuine issue of triable fact. Keenan v.

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Allen, 91 F.3d 1275, 1279 (9th Cir. 1996). The nonmoving party has the burden of

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identifying, with reasonable particularity, the evidence that precludes summary judgment. Id.

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If the nonmoving party fails to make this showing, “the moving party is entitled to judgment

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as a matter of law.” Celotex, 477 U.S. at 323.

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II.

Motion for Summary Judgment

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A.

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Plaintiff concedes that defendants Pieren, Pimental and McGuyer were not involved in

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Defendants Pieren, Pimental, and McGuyer

the mail stoppages at issue in this case. (Pl.’s Opp. to MSJ at 17.) Accordingly, summary

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No. C 11-4279 RS (PR)
ORDER GRANTING MOT. FOR SUMM. J.

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judgment is GRANTED in favor of defendants Pieren, Pimental, and McGuyer as to all

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claims because these defendants did not cause “the deprivation of which [the plaintiff

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complains].” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988).

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B.

Mail to Easyriders and LFP

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Defendants assert that plaintiff’s claims related to the mail to Easyriders and LFP (and

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the mail sent by his father to plaintiff) are barred by the doctrines of (1) res judicata, and

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(2) collateral estoppel.

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1.

Res Judicata

Under the Federal Full Faith and Credit Statute, 28 U.S.C. § 1738, “a federal court

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For the Northern District of California

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must give to a state-court judgment the same preclusive effect as would be given that

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judgment under the law of the State in which the judgment was rendered.” Migra v. Warren

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City School Dist. Bd. of Educ., 465 U.S. 75, 81 (1984). There is no exception to the rules of

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claim and issue preclusion for federal civil rights actions under 42 U.S.C. § 1983 — the

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Supreme Court has made it clear that a § 1983 claim brought in federal court is subject to

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principles of claim and issue preclusion by a prior state court judgment. See id. at 84; Allen

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v. McCurry, 449 U.S. 90, 97–98 (1980). Even state habeas proceedings have a preclusive

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effect on later § 1983 actions. See Silverton v. Dep’t of Treasury, 644 F.2d 1341, 1346–47

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(9th Cir. 1981) (state habeas proceeding precludes identical issue from being relitigated in

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subsequent § 1983 action if state habeas court afforded full and fair opportunity for issue to

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be heard).

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Res judicata, commonly known as claim preclusion, prohibits a second lawsuit

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involving the (1) same controversy (2) between the same parties or their privies (3) so long as

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the prior lawsuit was a final judgment on the merits. Mycogen Corp. v. Monsanto Co., 28

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Cal. 4th 888, 896–97 (2002). Claim preclusion also applies to those claims which could have

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been litigated as part of the prior cause of action. See Clark v. Yosemite Community College

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Dist., 785 F.2d 781, 786 (9th Cir. 1986). A plaintiff cannot avoid the bar of claim preclusion

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merely by alleging conduct by the defendant not alleged in the prior action, or by pleading a

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No. C 11-4279 RS (PR)
ORDER GRANTING MOT. FOR SUMM. J.

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new legal theory. See McClain v. Apodaca, 793 F.2d 1031, 1034 (9th Cir. 1986).

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Plaintiff’s claims are barred by res judicata because the record shows that all elements

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of that doctrine are present. The first element is met because the issues in this case are part of

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the “same controversy” previously adjudicated in plaintiff’s prior habeas action. In his

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habeas petition, plaintiff asserted that his sale of jokes to magazines should not be restricted

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as an unauthorized business activity. (MSJ, Ex. A.) In relation to this claim, plaintiff

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specifically presented the outgoing correspondence stopped on December 4, 2007 and

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December 10, 2007 to LFP and Easyriders and the incoming letter from plaintiff’s father

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stopped on December 6, 2007 as examples of alleged prison-mandated restrictions on his

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For the Northern District of California

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business dealings. (Id.) The withholding of these items is again at issue in the current case.

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In addition, in the “Denial to the Return to the Order to Show Cause” at the state court level,

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plaintiff specifically raised a First Amendment claim related to these withholdings. (MSJ,

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Request for Judicial Notice, Ex. H.) Thus, it is apparent that plaintiff’s state habeas petition

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and the instant § 1983 complaint are substantially the same controversy.

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The remaining elements of res judicata are also present. The parties involved in

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plaintiff’s state habeas petition and instant § 1983 complaint are substantially the same.

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Plaintiff’s habeas petition was directed at officials at Pelican Bay, who are named in the

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instant action.

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Finally, there is no indication that the decision reached by the state court in the

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previous habeas proceeding was reached on any basis other than the actual merits of the case.

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See Barker v. Fleming, 423 F.3d 1085, 1092 (9th Cir. 2005) (in the federal habeas context, a

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state court judgement is “final” and “on the merits” if the court finally resolved the rights of

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the parties on the substance of the claim, rather than on the basis of a procedural or other rule

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precluding state review on the merits). During the prior habeas proceeding, the superior

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court decided on the merits that plaintiff’s constitutional rights were not violated when prison

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officials withheld plaintiff’s mail because such actions were related to the “legitimate

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penological interest [in preventing] petitioner from selling jokes to magazines.” (Defs.’

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No. C 11-4279 RS (PR)
ORDER GRANTING MOT. FOR SUMM. J.

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Request for Judicial Notice (Docket No. 48), Ex. B. at 5–7.) All elements of res judicata

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being present, plaintiff’s claims that defendants violated his constitutional rights by

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withholding mail related to his unauthorized business dealings are barred. Accordingly,

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summary judgment is GRANTED in favor of defendants on that basis.

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2.

Collateral Estoppel

Defendants also assert that the action is barred by the doctrine of collateral estoppel.
Under California law, collateral estoppel, also known as issue preclusion, prohibits the

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re-litigation of issues decided in a prior proceeding if: (1) the issue is identical to the one

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decided in a prior proceeding; (2) the issue was actually litigated in the prior proceeding;

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For the Northern District of California

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(3) the issue was necessarily decided in the prior proceeding; (4) the decision in the prior

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proceeding was final and on the merits; and (5) the party against whom preclusion is sought

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is the same or is in privity with the party from the prior proceeding. Lucido v. Superior

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Court, 51 Cal.3d 335, 341 (Cal. 1990). “The party asserting collateral estoppel bears the

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burden of establishing these requirements.” Id.

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Here, the state superior court’s decision satisfies the above requirements and therefore

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plaintiff’s federal suit is barred. As to the first element, plaintiff relies on the exact same set

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of facts and evidence for the instant complaint as he did in his state habeas action. Plaintiff

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also addresses an identical underlying issue in both actions: whether his constitutional rights

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were violated when the defendants withheld his mail.

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The other elements of collateral estoppel are also present. The issue was actually

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litigated and necessarily decided, as it was raised by the pleadings and specifically addressed

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by the state court. Barker v. Hull, 191 Cal. App. 3d 221, 226 (1987) (“When an issue is

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properly raised, by the pleadings or otherwise, and is submitted for determination, and is

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determined, the issue is actually litigated within the meaning of this Section.”) (citations and

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quotations omitted). Also, as previously stated, the decision was reached on the merits.

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Lastly, the parties here are the same as those in the prior action. Because all the elements of

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collateral estoppel are present, plaintiff’s action as to these claims is barred. Accordingly,

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No. C 11-4279 RS (PR)
ORDER GRANTING MOT. FOR SUMM. J.

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summary judgment is GRANTED in favor of defendants on this ground.

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C.

Mail to Brian Chance

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Plaintiff’s mail to his nephew, Brian Chance, was withheld because it contained

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glued-on items, a violation of Pelican Bay Operating Procedure 205 which states that

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“[i]tems unable to be searched without [being destroyed],” and “[g]lued-on items” are

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considered unauthorized mail that cannot be mailed out of the prison. (MSJ, Soderlund Decl.

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Ex. E.) Plaintiff alleges that defendants’ actions violated his (1) First Amendment, and

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(2) due process rights.

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For the Northern District of California

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1.

First Amendment

Although prisoners have a First Amendment right to send and receive mail, prison

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officials may adopt regulations or practices that impinge on a prisoner’s First Amendment

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rights if the regulations are “reasonably related to legitimate penological interests.” Turner v.

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Safely, 482 U.S. 78, 89 (1987). The Turner standard applies to regulations concerning all

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incoming mail received by prisoners from non-prisoners. Thornburgh v. Abbott, 490 U.S.

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401, 407 (1989). In the case of outgoing mail from prisoners to non-prisoners, there is an

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exception to the Turner standard. Id. at 411–12. This exception dictates that regulations on

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outgoing mail are justified only if: (1) the regulation or practice in question furthers “an

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important or substantial government interest unrelated to the suppression of expression,” and

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(2) the limitation on First Amendment freedoms is no greater than necessary to further the

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particular government interest involved. Procunier v. Martinez, 416 U.S. 396, 413 (1974)

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(overruled on other grounds by Thornburgh, 490 U.S. at 413–14). In Procunier, the Court

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recognized that a penal institutions interest in maintaining “security, order, and

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rehabilitation” is an “important or substantive government interest.” 416 U.S. at 413.

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Pelican Bay Operating Procedure 205’s ban on the mailing of correspondence with

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glued-on items, satisfies the requirements of Procunier. See id. This procedure was put in

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place to prevent prisoners from transmitting hidden illicit messages under glued-on items

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affixed to correspondence. Plaintiff’s specific case highlights the effectiveness of this

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No. C 11-4279 RS (PR)
ORDER GRANTING MOT. FOR SUMM. J.

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procedure because Officer Milligan specifically targeted the piece of outgoing mail from

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plaintiff to Brian Chance because it contained glued-on items. (MSJ at 24.) After Milligan

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searched the correspondence, he discovered that the glued-on pictures attached to the cards

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were in fact being used to conceal hidden messages. (Id.) Thus, this operating procedure

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effectively serves the function of maintaining prison security and order in furtherance of “an

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important or substantial government interest unrelated to suppression of expression.” See

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Procunier, 416 U.S. at 413.
Operating Procedure 205 also satisfies Procunier because the procedure is not

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“greater than necessary to further the particular government interest involved.” See id. As

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For the Northern District of California

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previously discussed, glued-on items in correspondence are often used by prisoners to hide

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illicit messages. Accordingly, prison procedures which specifically target such items for

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search and withholding are not overly broad because they are directly designed to help prison

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officials achieve the “important or substantive government interest[s]” of “security, order,

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and rehabilitation.” Id.

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Operating Procedure 205 is also not overly broad because it does not seek to deprive

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prisoners of all means of expression. See id. The procedure is primarily concerned with

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monitoring a discrete class of correspondence which prison officials have identified as a

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favored method used by prisoners to communicate potentially dangerous information. In

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plaintiff’s case, his mail to Brian Chance would not have been withheld if plaintiff had

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simply kept the pictures and cards separate rather than affixing the pictures to the cards using

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glue. (MSJ at 26–27.) It appears that plaintiff chose to glue the pictures onto the cards for

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the purpose of discretely hiding written messages, however. (Id. at 24.) In addition, the

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disputed pieces of stopped outgoing mail to LFP and Easyriders were not withheld solely

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because they contained glued-on items; these items were also withheld because they were

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directly related to the advancement of plaintiff’s unauthorized business of selling jokes to

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magazines. (Id. at 6–7, 10.)

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No. C 11-4279 RS (PR)
ORDER GRANTING MOT. FOR SUMM. J.

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Accordingly, plaintiff has not shown a genuine dispute of material fact that Pelican

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Bay Operating Procedure 205 or defendants’ withholding of his correspondence with glued-

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on items violated his First Amendment rights. Summary judgment is GRANTED in favor of

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all defendants as to this claim.

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2.

Due Process

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Plaintiff alleges that his Fourteenth Amendment due process rights were violated

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because his mail was taken without just cause and reasonable opportunity to object. (Am.

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Compl. at 26–27.) Although the due process clause protects persons against deprivation of

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life, liberty or property without adequate process, “due process rights for prisoners . . . are

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For the Northern District of California

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not absolute [and] are subject to reasonable limitations or retractions in light of the legitimate

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security concerns of the institution.” Bell v. Wolfish, 441 U.S. 520, 554 (1979). Where

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deprivation of property is the result of a state procedure, a post-deprivation hearing may be

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adequate to satisfy due process when there is “[e]ither the necessity of quick action by the

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State or the impracticability of providing any meaningful pre-deprivation process.” Parratt

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v. Taylor, 451 U.S. 527, 540 (1990) (overruled on other grounds in Daniels v. Williams, 474

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U.S. 327 (1986)).

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Prior to searching prisoners’ mail, prison officials cannot predict with sufficient

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certainty which items of mail may pose a threat to prison safety. As a result, California law

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allows post-deprivation remedies to satisfy due process requirements in such cases. Under

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title 15, California Code of Regulation Sections 3136 and 3137, prisoners have a right to

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appeal decisions by prison officials to withhold correspondence. Plaintiff was informed of

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this post-deprivation remedy and plaintiff did in fact exercise his right to appeal the mail

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withholdings through several levels of review. (Soderlund Decl. Exs. A-D.) Thus, plaintiff

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was not deprived of his right to due process because the post-deprivation remedies in place

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were sufficient. See Parratt, 451 U.S. at 540. Summary judgment is GRANTED in favor of

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all defendants as to this claim.

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D.

Qualified Immunity

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Defendants alternatively assert that summary judgement should be granted because

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they are entitled to qualified immunity against plaintiff’s claims. Qualified immunity

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protects “government officials . . . from liability for civil damages insofar as their conduct

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does not violate clearly established statutory or constitutional rights of which a reasonable

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person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Because there

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was no constitutional violation, it is unnecessary to consider whether defendants are entitled

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to qualified immunity.

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CONCLUSION

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For the Northern District of California

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Plaintiff has failed to show that there is a genuine dispute as to any material fact as to

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any of his claims. As a result, defendants’ motion for summary judgment (Docket No. 88) is

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GRANTED in favor of all defendants (Anthony, Brandon, Milligan, McGuyer, Pieren and

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Pimental) as to all claims. The Clerk shall enter judgment in favor of all defendants,

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terminate Docket No. 88, and close the file.

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IT IS SO ORDERED.
DATED: July 25, 2014
RICHARD SEEBORG
United States District Judge

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