Balletto

Filing 8

ORDER OF DISMISSAL WITH LEAVE TO AMEND (Re: ECF Nos. 6,7): Re 6 Complaint filed by Ryan Balletto, 7 MOTION for Leave to Proceed in forma pauperis filed by Ryan Balletto. Signed by Magistrate Judge Laurel Beeler on 1/27/2016. (lsS, COURT STAFF) (Filed on 1/27/2016)

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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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In Re.

United States District Court
Northern District of California

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Case No. 15-cv-05619-LB

RYAN ALAN BALLETTO,

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Plaintiff.
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ORDER OF DISMISSAL WITH
LEAVE TO AMEND

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[Re: ECF Nos. 6, 7 ]

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INTRODUCTION

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Ryan Alan Balletto, an inmate at the Glen Dyer Jail in Oakland, filed this pro se prisoner's

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civil rights action under 42 U.S.C. § 1983. He consented to proceed before a magistrate judge.

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(ECF No. 5.)1 This action is now before the court for review of Mr. Balletto’s complaint. This

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order finds the complaint and in forma pauperis application deficient, and requires Mr. Balletto to

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file an amended complaint as well as a certified copy of his inmate trust account statement.

STATEMENT

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In his complaint, Mr. Balletto alleges that he sent mail to his attorney on October 7, 2015, and

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later learned that the attorney did not receive the mail, so he filed an inmate grievance at the jail.

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The response to his inmate grievance “was that the USPS returned the legal mail and it was sent to

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Citations are to the Electronic Case File (“ECF”); pin cites are to the ECF-generated page
numbers at the tops of the documents.

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housing unit to be returned. I never received it.” (ECF No. 6 at 3.)

ANALYSIS

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A federal court must engage in a preliminary screening of any case in which a prisoner seeks

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redress from a governmental entity or officer or employee of a governmental entity. See 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. See id. at § 1915A(b). Pro se

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complaints must be liberally construed. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a right
secured by the Constitution or laws of the United States was violated, and (2) that the violation

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United States District Court
Northern District of California

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was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48

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(1988).

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There are two problems with Mr. Balletto’s § 1983 complaint. First, the allegations of the

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complaint suggest nothing more than an isolated mistake in handling Mr. Balletto’s mail that

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would not rise to the level of a violation of his constitutional rights. Inmates enjoy a First

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Amendment right to send and receive mail. Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995)

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(citing Thornburgh v. Abbott, 490 U.S. 401, 407 (1989)). Prison and jail officials have a

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responsibility to forward mail to inmates promptly. Bryan v. Werner, 516 F.2d 233, 238 (3d Cir.

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1975). However, a temporary delay or isolated incident of delay or other mail interference without

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evidence of improper motive does not violate a prisoner's First Amendment rights. See Crofton v.

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Roe, 170 F.3d 957, 961 (9th Cir. 1999); see also Rowe v. Shake, 196 F.3d 778, 782 (7th Cir. 1999)

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(content-neutral, short-term, and sporadic delays in prisoner's receipt of mail did not violate his

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First Amendment rights); Smith v. Maschner, 899 F.2d 940, 944 (10th Cir. 1990) (defendants

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opened a single piece of legal mail by accident; “[s]uch an isolated incident, without any evidence

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of improper motive or resulting interference with Smith's right to counsel or to access to the

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courts, does not give rise to a constitutional violation”); cf. Antonelli v. Sheahan, 81 F.3d 1422,

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1431-32 (9th Cir. 1996) (plaintiff stated a claim where he alleged not merely negligent, but

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deliberate, obstruction of his mail that resulted in mail delivery being delayed for an inordinate
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amount of time). In his amended complaint, Mr. Balletto must allege facts, if he has them, to

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plausibly suggest that the failure to return this one piece of mail was something more than a

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simple, isolated mistake or honest error.
Second, Mr. Balletto has not identified any defendant. To state a claim for relief under § 1983,

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a plaintiff must allege that there was a wrongdoer and that the wrongdoer was acting under color

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of state law. Leave to amend will be granted so that Mr. Balletto may attempt to provide the name

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of each person he wishes to sue for interfering with his mail. In his amended complaint, Mr.

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Balletto must link individual defendants to each of his claims by identifying each involved

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defendant by name and explaining what each involved defendant did or failed to do that caused a
violation of his rights. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). There is no

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United States District Court
Northern District of California

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respondeat superior liability under § 1983, i.e. no liability under the theory that one is liable

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simply because he employs a person who has violated plaintiff's rights. See Monell v. Dep't of

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Social Servs.,436 U.S. 658, 691 (1978); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
If Mr. Balletto knows that someone interfered with his mail but does not know that person’s

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name, he can sue the person as a John Doe or Jane Doe defendant in his amended complaint.2 The

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use of "John Doe" or "Jane Doe" to identify a defendant is not favored in the Ninth Circuit, see

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Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980), but sometimes is necessary when a

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plaintiff cannot discover the identity of the defendant before filing the complaint. Although the use

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of a John Doe or Jane Doe defendant designation is acceptable to withstand dismissal of a

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complaint at the initial review stage, using a Doe defendant designation creates its own problem:

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that person cannot be served with process until he or she is identified by his or her real name. The

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burden remains on the plaintiff to identify the defendant; the court will not undertake to

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investigate the name and identity of an unnamed defendant. If Mr. Balletto includes only Doe

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defendants in the amended complaint, the court will dismiss the action without prejudice to Mr.

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Balletto filing a new action if he ever learns the name of the defendant(s).

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If several people interfered with his mail and Mr. Balletto does not know the identity of any of
them, he must number the Doe defendants, e.g., John Doe # 1, John Doe # 2, etc., so that each
numbered John Doe refers to a different person. If the wrongdoer is a woman, Mr. Balletto should
list her as “Jane Doe.”
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Mr. Balletto’s in forma pauperis application is incomplete because it does not have attached to

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it a certified copy of his inmate trust account statement. (ECF No. 7.) A prisoner must “submit a

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certified copy of the trust account statement (or institutional equivalent) for the prisoner for the 6-

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month period immediately preceding the filing of the complaint . . . obtained from the appropriate

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official of each prison at which the prisoner is or was confined.” 28 U.S.C. § 1915(a)(2). Mr.

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Balletto must file a certified copy of his inmate trust account statement no later than February 29,

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2016.

CONCLUSION

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For the foregoing reasons, the complaint is DISMISSED WITH LEAVE TO AMEND.
The amended complaint must be filed no later than February 29, 2016, and must include the

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United States District Court
Northern District of California

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

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first page. Mr. Balletto is cautioned that his amended complaint will supersede existing pleadings

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and must be a complete statement of his claims, except that he does not need to plead again any

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claim the court has dismissed without leave to amend. See Lacey v. Maricopa County, 693 F.3d

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896, 928 (9th Cir. 2012) (en banc). Failure to file the amended complaint by the deadline will

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result in the dismissal of the action for failure to state a claim.

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Mr. Balletto must file a certified copy of his inmate trust account statement no later than

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February 29, 2016, or his in forma pauperis application will be denied and this action will be

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dismissed. Alternatively, he may pay the full $400.00 fee (i.e., the $350.00 filing fee plus the

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$50.00 administrative fee) by that same deadline to avoid dismissal.

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IT IS SO ORDERED.
Dated: January 27, 2016

___________________________
LAUREL BEELER
United States Magistrate Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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In Re: BALLETTO,

Case No. 3:15-cv-05619-LB

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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,
Defendant.

United States District Court
Northern District of California

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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.

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That on January 27, 2016, 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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Ryan Balletto ID: ULW801
550 6th Street
Oakland, CA 94607
Dated: January 27, 2016

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
Lashanda Scott, Deputy Clerk to the
Honorable LAUREL BEELER
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