Sawyer v. Chappell et al

Filing 9

ORDER OF DISMISSAL WITH LEAVE TO AMEND re 1 Complaint filed by Kevin DeRoi Sawyer. Signed by Judge James Donato on 7/29/15. (lrcS, COURT STAFF) (Filed on 7/29/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KEVIN DEROI SAWYER,

Case No. 15-cv-00220-JD

Plaintiff,
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v.

ORDER OF DISMISSAL WITH LEAVE
TO AMEND

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KEVIN R. CHAPPELL, et al.,

Re: Dkt. No. 3

Defendants.

United States District Court
Northern District of California

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Kevin Deroi Sawyer, a state prisoner, has filed a pro se civil rights complaint under 42

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U.S.C. § 1983. He has been granted leave to proceed in forma pauperis.
DISCUSSION

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I.

STANDARD OF REVIEW

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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). In its review, the Court must identify any cognizable claims, and dismiss any claims

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which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek

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monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se

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pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th

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Cir. 1990).

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Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the

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claim showing that the pleader is entitled to relief.” Although a complaint “does not need detailed

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factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to

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relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a

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cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above

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the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations

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omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its

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face.” Id. at 570. The United States Supreme Court has explained the “plausible on its face”

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standard of Twombly: “While legal conclusions can provide the framework of a complaint, they

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must be supported by factual allegations. When there are well-pleaded factual allegations, a court

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should assume their veracity and then determine whether they plausibly give rise to an entitlement

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to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1) a right secured by

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the Constitution or laws of the United States was violated, and (2) the alleged deprivation was
committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

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United States District Court
Northern District of California

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II.

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LEGAL CLAIMS
Sawyer states that defendants confiscated his writings, notes, quotes, and research material

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in violation of the First and Fourth Amendment and improperly processed his administrative

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appeals. He also alleges violation of the U.S Copyright Act. A prisoner retains those First

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Amendment rights that are “not inconsistent with his status as a prisoner or with the legitimate

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penological objectives of the corrections system.” Prison Legal News v. Cook, 238 F.3d 1145,

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1149 (9th Cir. 2001) (quoting Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S.

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119, 129 (1977)) (internal quotation marks omitted). Accordingly, a prison regulation that

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impinges on a prisoner’s First Amendment right to free speech is valid only “if it is reasonably

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related to legitimate penological interests.” Shaw v. Murphy, 532 U. S. 223, 229 (2001) (citing

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Turner v. Safley, 482 U.S. 78, 89 (1987)); see, e.g., Hargis v. Foster, 312 F.3d 404, 410 (9th Cir.

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2002) (holding that rule subjecting prisoners to discipline for coercing a guard into not enforcing

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prison rules was, on its face, reasonably related to legitimate penological interests).

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A claim that the application of a prison regulation violated a prisoner-plaintiff’s First

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Amendment right to free speech does not end if the regulation, on its face, satisfies the Turner test.

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Hargis, 312 F.3d at 410. Although facially valid, the regulation may be unconstitutional as

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applied to the prisoner-plaintiff. See id. at 410-12 (finding triable issue as to whether prison

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officials’ discipline of a prisoner for coercion, for his statement to a prison guard that the guard’s
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actions and statements could come up in pending state court litigation, violates the prisoner’s right

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to free speech, when a jury could reasonably find that charging the prisoner with such a severe

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disciplinary infraction was an exaggerated response to prisoner’s conduct).
With respect to the claim that the confiscation of his property was an unreasonable seizure

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in violation of the Fourth Amendment, the Fourth Amendment does not proscribe unreasonable

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searches or seizures of property in prison. See Hudson v. Palmer, 468 U.S. 517, 528 n.8, 536

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(1984). Moreover, there is no constitutional right to a prison administrative appeal or grievance

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system. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams, 855 F.2d 639,

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640 (9th Cir. 1988). Sawyer’s claims that his Fourth Amendment rights were violated and that his

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appeals were not granted or properly processed are dismissed.

United States District Court
Northern District of California

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Sawyer alleges that defendant Correctional Officer Cavagnolo seized Sawyer’s writings,

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notes, quotes, research material, and other written material regarding the Black Guerilla Family

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prison gang.1 After filing inmate appeals, much of the property was returned, yet some of the

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property remained confiscated. For purposes of screening, Sawyer has presented a cognizable

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First Amendment claim against defendant Cavagnolo. Sawyer has also identified many other

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defendants who are associate wardens or wardens of the prison along with other supervisor

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defendants. However, he has failed to identify how they were specifically involved in the

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confiscation of the property.
Supervisor defendants are entitled to qualified immunity where the allegations against

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them are simply “bald” or “conclusory” because such allegations do not “plausibly” establish the

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supervisors’ personal involvement in their subordinates’ constitutional wrong, Iqbal, 556 U.S. at

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675-84 (noting no vicarious liability under Section 1983 or Bivens actions), and unfairly subject

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the supervisor defendants to the expense of discovery and continued litigation, Henry A. v.

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Willden, 678 F.3d 991, 1004 (9th Cir. 2012) (general allegations about supervisors’ oversight

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Sawyer also received two “validation” points towards being a validated gang member of the
Black Guerilla Family and several defendants began investigating him to determine if was
involved with a prison gang. He has failed to set forth a valid claim that prison officials
investigating him for gang activity violated the First Amendment. Nor is it alleged that Sawyer
has been validated as a gang member.
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responsibilities and knowledge of independent reports documenting the challenged conduct failed

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to state a claim for supervisor liability). So it is insufficient for a plaintiff only to allege that

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supervisors knew about the constitutional violation and that they generally created policies and

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procedures that led to the violation, without alleging “a specific policy” or “a specific event”

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instigated by them that led to the constitutional violations. Hydrick v. Hunter, 669 F.3d 937, 942

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(9th Cir. 2012). Under no circumstances is there respondeat superior liability under section 1983,

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which means there is no liability under section 1983 solely because one is purportedly responsible

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for the actions or omissions of another. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

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The complaint is dismissed with leave to amend. Sawyer must present more than
conclusory allegations to state a claim against the supervisor defendants. He must describe the

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United States District Court
Northern District of California

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specific actions of these defendants. With respect to the allegation of a violation of the Copyright

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Act, Sawyer has not presented any facts for the Court to consider the claim. He only states that his

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copyrighted protected work was taken, but he does not describe the work or writings at issue nor

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does he demonstrate an ownership of a valid copyright. He may present more information in the

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amended complaint and identify the specific section of the Copyright Act that he relies upon.

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Sawyer is also informed that in the amended complaint he must include the allegations against

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defendant Cavagnolo because an amended complaint completely replaces the original complaint.
CONCLUSION

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1.

The complaint is DISMISSED with leave to amend. The amended complaint must

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be filed within twenty-eight (28) days of the date this order is filed and must include the caption

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and civil case number used in this order and the words AMENDED COMPLAINT on the first

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page. Because an amended complaint completely replaces the original complaint, plaintiff must

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include in it all the claims he wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th

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Cir. 1992). He may not incorporate material from the original complaint by reference. Failure to

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amend within the designated time will result in the dismissal of all defendants except Cavagnolo

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and this case will only proceed against him.

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2.

It is the plaintiff’s responsibility to prosecute this case. Plaintiff must keep the

Court informed of any change of address by filing a separate paper with the clerk headed “Notice
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of Change of Address,” and must comply with the Court’s orders in a timely fashion. Failure to

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do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of

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Civil Procedure 41(b).

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IT IS SO ORDERED.
Dated: July 29, 2015
________________________
JAMES DONATO
United States District Judge

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United States District Court
Northern District of California

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KEVIN DEROI SAWYER,

Case No. 15-cv-00220-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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KEVIN R. CHAPPELL, et al.,
Defendants.

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.

United States District Court
Northern District of California

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That on July 29, 2015, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Kevin DeRoi Sawyer
P22673 1-W-69-U
San Quentin State Prison
San Quentin, CA 94974

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Dated: July 29, 2015

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Richard W. Wieking
Clerk, United States District Court

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By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO

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