Harvey v. Scott et al

Filing 27

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. Signed by Judge Richard Seeborg on 2/28/14. (Attachments: # 1 Certificate/Proof of Service)(cl, COURT STAFF) (Filed on 2/28/2014)

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*E-Filed 2/28/14*

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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No. C 11-4332 RS (PR)

JAMES EARL HARVEY,

ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY
JUDGMENT

Plaintiff,

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v.

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J. HINDT, et al.,

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Defendants.
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INTRODUCTION

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This is a federal civil rights action filed pursuant to 42 U.S.C. § 1983 by a pro se state

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prisoner. Defendant Hindt, the sole remaining defendant, moves for summary judgment.

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The other named defendants were dismissed by prior order of the Court. (Order of Service,

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Docket No. 4.) For the reasons stated herein, defendant Hindt’s motion for summary

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judgment is GRANTED.

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BACKGROUND
Plaintiff claims that defendant, a correctional officer at Pelican Bay, violated his First
and Sixth Amendment rights by mishandling a piece of legal mail. Defendant moves for

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No. C 11-4332 RS (PR)
ORDER GRANTING MOT. FOR SUMM. J.

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summary judgment on the grounds that plaintiff has failed to show that defendant’s

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mishandling was intentional, and not merely negligent.
The following facts are undisputed. On March 30, 2011, defendant Hindt, a

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correctional officer at Pelican Bay, opened a piece of plaintiff’s legal mail in front of another

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inmate’s cell. Forty-five minutes later, after learning of the misdeliverance, defendant gave

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the letter to plaintiff.
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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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. In

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contrast, on an issue for which the opposing party 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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Once the moving party meets its initial burden, the nonmoving party must go beyond

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the pleadings and, by its own affidavits or discovery, set forth specific facts showing that

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there is a genuine issue for trial. The court is only concerned with disputes over material

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facts. “[F]actual disputes that are irrelevant or unnecessary will not be counted.” Anderson,

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No. C 11-4332 RS (PR)
ORDER GRANTING MOT. FOR SUMM. J.

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477 U.S. at 248. It is not the task of the court to scour the record in search of a genuine issue

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of triable fact. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). The nonmoving party

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has the burden of identifying, with reasonable particularity, the evidence that precludes

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summary judgment. Id. If the nonmoving party fails to make this showing, “the moving

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party is entitled to a judgment as a matter of law.” Celotex, 477 U.S. at 322.

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II.

Analysis

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Plaintiff claims that the March 30, 2011 incident was not a single, isolated incident,

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but rather “a continuation of an orchestrated assault” on his constitutional rights. (Opp. to

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Mot. for Summ. J. (“MSJ”) at 6.) He further claims that the mishandling was a deliberate act

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rather than a mistake. (Id.) Specifically, plaintiff argues that this incident violated his First

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Amendment right to send and receive legal mail, and his Sixth Amendment right to counsel.1

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A.

First Amendment

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Prisoners enjoy a First Amendment right to send and receive mail. See Witherow v.

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Paff, 52 F.3d 264, 265 (9th Cir. 1995) (citing Thornburgh v. Abbott, 490 U.S. 401, 407

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(1989)). Prison officials may institute procedures for inspecting “legal mail,” e.g., mail sent

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between attorneys and prisoners, see Wolff v. McDonnell, 418 U.S. 539, 576–77 (1974). At

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the same time, the opening and inspecting of “legal mail” outside the presence of the prisoner

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may have an impermissible “chilling” effect on the constitutional right to petition the

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government. See O’Keefe v. Van Boening, 82 F.3d 322, 325 (9th Cir. 1996) (citing Laird v.

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Tatum, 408 U.S. 1, 11 (1972)). Isolated incidents of mail interference without any evidence

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of improper motive or resulting interference with the right to counsel or access to the courts,

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however, do not give rise to a constitutional violation. See Smith v. Maschner, 899 F.2d 940,

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944 (10th Cir. 1990)

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Plaintiff also alleges that the misdeliverance exposed him to danger from other inmates.
His allegations are entirely conclusory — he fails to allege what dangers, what persons were
dangerous, any threats he received or any actual incidents in which he was in danger.
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No. C 11-4332 RS (PR)
ORDER GRANTING MOT. FOR SUMM. J.

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Neither negligence nor gross negligence is actionable under § 1983 in the prison

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context. See Farmer v. Brennan, 511 U.S. 825, 835–36 & n.4 (1994); Wood v. Housewright,

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900 F.2d 1332, 1334 (9th Cir. 1990) (gross negligence insufficient to state claim for denial of

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medical needs to prisoner). The Ninth Circuit has held that negligence which resulted in the

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opening of legal mail outside the presence of the intended prisoner to whom it was sent does

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not constitute constitutional error. Stevenson v. Koskey, 877 F.2d 1435, 1441 (9th Cir. 1989).

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“In the context of constitutional torts, it is the deliberate, intentional abuse of governmental

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power for the purpose of depriving a person of life, liberty or property that the fourteenth

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amendment was designed to prevent.” Id. (citations omitted.)

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Plaintiff in this case fails to raise a genuine issue as to any material fact showing

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defendant acted with anything more than negligence in opening the legal envelope outside of

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his presence. Defendant describes the incident as “a simple oversight.” (MSJ, Hindt Decl.

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¶ 6.) Plaintiff argues that, owing to his numerous lawsuits against prison officials for First

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Amendment violations, he has no doubt that the defendant’s act was intentional. (Opp. at

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3–6.) Defendant, however, is and was not a party to any other lawsuits filed by plaintiff.

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(MSJ, Hindt Decl. ¶ 6.) Plaintiff does not allege that defendant has deprived him of his

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constitutional rights at any other time. Defendant is not involved in any gang investigations.

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(Id. ¶ 7.) Outside of his conclusory statement, plaintiff offers no evidence that defendant’s

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actions were anything other than negligent. Whether defendant gave the legal envelope to

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another inmate before returning it to plaintiff is irrelevant to a determination of intent. (Opp.

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at 2–3.) The fact that defendant may not have followed prison procedures does not make his

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actions a violation of the Constitution. Even assuming that this incident interfered in some

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way with plaintiff’s right to counsel or access to the courts, this claim is not a constitutional

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violation due to plaintiffs failure to raise a genuine issue regarding any material facts

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showing defendant’s intent, or lack thereof. Accordingly, summary judgment is GRANTED

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on all claims of First Amendment violations.

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No. C 11-4332 RS (PR)
ORDER GRANTING MOT. FOR SUMM. J.

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B.

Sixth Amendment

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Plaintiff claims that his Sixth Amendment rights were violated because his mail was

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returned to him without a questionnaire regarding his housing in solitary confinement, which

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was designed to solicit the help of counsel. (Opp. at 7.) This is insufficient to raise a triable

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issue of material fact. He has not shown evidence, as opposed to conclusory allegations, that

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the alleged deprivation of the questionnaire led to his inability to find counsel to pursue

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nonfrivolous claims, or how it otherwise affected his access to the courts, or what “critical

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information” the questionnaire was designed to gather. Accordingly, defendant is entitled to

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summary judgment as to this claim.
CONCLUSION

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Plaintiff having failed to show that there are triable issues of material fact as to his

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claims, defendant’s motion for summary judgment (Docket No. 20) is GRANTED as to all

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claims. The Clerk shall terminate Docket No. 20, enter judgment in favor of defendant, and

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close the file.

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IT IS SO ORDERED.
DATED: February 28, 2014
RICHARD SEEBORG
United States District Judge

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No. C 11-4332 RS (PR)
ORDER GRANTING MOT. FOR SUMM. J.