McCullom V. Whent, et al.

Filing 59

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT by Judge Thelton E. Henderson granting 38 Motion for Summary Judgment. (Attachments: # 1 Certificate/Proof of Service)(tlS, COURT STAFF) (Filed on 2/14/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 KEVIN LEE McCULLOM, 7 Case No. 15-cv-5718-TEH Plaintiff, 8 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT v. 9 SEAN WHENT, et. al., 10 Dkt. No. 38 Defendants. United States District Court Northern District of California 11 12 13 Plaintiff Kevin Lee McCullom, a detainee, filed this pro se 14 action under 42 U.S.C. § 1983. 15 amended complaint (Docket No. 15) against Defendant Whittaker 16 with allegations that while working at Santa Rita Jail she 17 confiscated Plaintiff’s legal mail in one case and prevented mail 18 from being delivered in another case. 1 19 for summary judgment. 20 file an opposition but has failed to oppose the motion. 2 21 Regardless, the Court has still reviewed the motion for summary 22 judgment on the merits and for the reasons that follow, This case proceeds under the Defendant filed a motion Plaintiff has been provided four months to 23 1 24 25 26 27 28 Service was ordered on another Defendant, T.S. Jacobs. Defendant Whittaker’s attorney filed a notice that T.S. Jacobs does not exist nor was employed at Santa Rita Jail. Docket No. 44. Plaintiff was ordered to provide more information so this Defendant could be served, but Plaintiff has failed to provide any additional information. 2 Despite not filing an opposition in this case, Plaintiff has continued to file motions in another case in this Court from December 2016 to February 2017. See Docket Nos. 21-27 in McCullom v. Ahern, Case No. 16-cv-0045 HRL. 1 Defendant’s motion is GRANTED. 2 I 3 During the relevant time, Plaintiff was incarcerated at 4 Santa Rita Jail. 3 5 been the mailroom supervisor at Santa Rita Jail since 2013. 6 Motion for Summary Judgment (“MSJ”), Whittaker Decl. ¶ 1. 7 Defendant oversees four administrative units at the jail that 8 comprise 22 staff members. 9 responsibilities include accounting for the mailroom staff, Am. Compl. at 1-3. Defendant Whittaker has Id. ¶¶ 2-4. Defendant’s delegating work assignments, resolving problems and addressing 11 United States District Court Northern District of California 10 grievances and appeals arising from mailroom operations. 12 2-5. 13 pieces of incoming and outgoing inmate mail a year. 14 Defendant does not personally open, inspect, read, or retain 15 inmates’ outgoing or incoming mail. 16 Id. ¶¶ The mailroom at Santa Rita Jail processes over 200,000 Id. Id. ¶¶ 3, 20, 24. Sorting inmate mail is a multi-step process. Id. ¶ 7. 17 Incoming mail is picked up from the United States Post Office by 18 mailroom staff and brought to the jail for processing. 19 7(a). 20 each inmate addressee’s housing location and writes the 21 information on each envelope. Id. ¶ 7(a)-(b). 22 “contraband” includes items such as lipstick marks, stickers, 23 glitter, etc., which have been deemed hazardous per Santa Rita 24 Jail policy are returned to the sender, and staff indicates why 25 delivery was prevented Id. ¶ After the mail is brought to the mailroom, staff looks up Visible outer Id. ¶ 7(c). 26 27 28 3 The following facts, unless otherwise noted, are undisputed. Even though Plaintiff has not filed an opposition the Court has reviewed his amended complaint. 2 1 Legal mail includes mail specifically marked as “legal” or 2 otherwise determined to be from an attorney or court; legal mail 3 is bundled without opening and marked with a “Legal Mail” stamp 4 which instructs opening “in the presence of inmate by the deputy 5 making the delivery” and requires inmate signature to confirm 6 delivery. 7 inspected for contraband (such as drugs, weapons and obscene 8 materials) and then re-bundled and sorted by housing unit for 9 inmate delivery. 10 Id. ¶ 7(f). Nonlegal mail is automatically opened, Id. ¶¶ 7(f)-(h). When incoming mail is dropped off at the separate housing United States District Court Northern District of California 11 units, mailroom staff picks up outgoing mail, which is brought to 12 the mailroom for processing. 13 mail is not opened or inspected unless deemed necessary due to 14 jail security. 15 deputy must confirm it is legal mail when picked up from the 16 inmate by signing his or her name and badge number on the back of 17 the envelope. 18 United States Post Office. 19 Id. ¶ 9. Id. ¶¶ 9-11. Outgoing nonlegal Id. ¶ 10. With respect to outgoing legal mail, a Outgoing mail is then taken to the Id. ¶ 11. Plaintiff states that on October 22, 2015, his letter to the 20 California Supreme Court accusing an attorney of corruption was 21 confiscated. 22 nonlegal envelope addressed to Plaintiff from the United States 23 Postal Service arrived at the jail. 24 4 at 3. 25 envelope from Plaintiff and addressed to the California Supreme 26 Court. 27 send, though it appears the contents was lost. 28 envelope was marked as legal mail. Am. Compl. at 1, 3. On November 6, 2015, a MSJ, Kennedy Decl, ¶ 10; Ex. The content of the nonlegal envelope was a large manila Ex. 4 at 3. This was the envelope Plaintiff attempted to 3 Id. This inner Also included in the 1 nonlegal envelope from the United States Postal Service was a 2 letter from the postal service that stated that an empty wrapper 3 was found at the postal service sorting facility but the 4 accompanying mail was not found. 5 jail mailroom staff forged this letter from the postal service. 6 Am. Compl. at 2. 7 Id. at 3-8. Plaintiff claims On a separate occasion, Plaintiff states that a letter this 8 Court sent to Plaintiff was returned to the Court as 9 undeliverable in the case McCullom v. Bang, Case No. 15-cv-3363TEH. 11 United States District Court Northern District of California 10 was returned to the Court as undeliverable on September 16, 2015. 12 Docket No. 14 in Case No. 15-cv-3363-TEH. 13 case was returned to the Court as undeliverable. 14 returned to the Court has the United States Postal Service yellow 15 return-to-sender sticker covering the addressee portion of the 16 envelope so it is not clear what the address stated and if it was 17 correct. 18 that was on the envelope. 19 filed three more actions in this Court against the same 20 defendants he had named in Case No. 15-cv-3363-TEH: McCullom v. 21 O’Malley, Case No. 16-cv-00899 (N.D. Cal. February 23, 2016); 22 McCullom v. Parker, Case No. 16-cv-01054 (N.D. Cal. March 2, 23 2016); McCullom v. Whent, Case No. 16-cv-01249 (N.D. Cal. March 24 14, 2016). 25 Am. Compl. at 3. Id. In Case No. 15-cv-3363-TEH, a Court order No other mail in that The mail Santa Rita Jail does not use the yellow sticker Whittaker Decl. ¶ 16. Plaintiff later Defendant in her role as supervisor did not personally 26 handle any of Plaintiff’s mail. 27 20-24. Whittaker Decl. ¶¶ 12, 14, 16, 28 4 1 II 2 A 3 Summary judgment is properly granted when no genuine 4 disputes of material fact remain and when, viewing the evidence 5 most favorably to the nonmoving party, the movant is clearly 6 entitled to prevail as a matter of law. 7 Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Eisenberg v. 8 Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir. 1987). 9 moving party bears the burden of showing there is no material Fed. R. Civ. P. 56(c); The factual dispute. 11 United States District Court Northern District of California 10 must regard as true the opposing party's evidence, if supported 12 by affidavits or other evidentiary material. 13 Eisenberg, 815 F.2d at 1289. 14 inferences in favor of the party against whom summary judgment is 15 sought. 16 U.S. 574, 587 (1986); Intel Corp. v. Hartford Accident & Indem. 17 Co., 952 F.2d 1551, 1559 (9th Cir. 1991). 18 Celotex, 477 U.S. at 331. Therefore, the Court Id. at 324; The Court must draw all reasonable Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 The moving party bears the initial burden of identifying 19 those portions of the pleadings, discovery and affidavits which 20 demonstrate the absence of a genuine issue of material fact. 21 Celotex, 477 U.S. at 323. 22 of production, the burden then shifts to the opposing party to 23 produce “specific evidence, through affidavits or admissible 24 discovery material, to show that the dispute exists.” 25 NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir.), cert. denied, 26 502 U.S. 994 (1991); Nissan Fire & Marine Ins. Co. v. Fritz Cos., 27 210 F.3d 1099, 1105 (9th Cir. 2000). If the moving party meets its burden 28 5 Bhan v. 1 Material facts that would preclude entry of summary judgment 2 are those which, under applicable substantive law, may affect the 3 outcome of the case. The substantive law will identify which 4 facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 5 242, 248 (1986). 6 cannot defeat a motion for summary judgment. 7 of San Diego, 84 F.3d 1162, 1168-70 (9th Cir. 1996), rev'd on 8 other grounds by Acri v. Varian Associates, Inc., 114 F.3d 999 9 (9th Cir. 1997). Questions of fact regarding immaterial issues Reynolds v. County A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a 11 United States District Court Northern District of California 10 verdict for the nonmoving party. 12 Anderson, 477 U.S. at 248. B 13 Prisoners enjoy a First Amendment right to send and receive 14 mail. 15 (citing Thornburgh v. Abbott, 490 U.S. 401, 407 (1989)). 16 prison, however, may adopt regulations or practices that impinge 17 on a prisoner's First Amendment rights as long as the regulations 18 are "reasonably related to legitimate penological interests." 19 See Turner v. Safley, 482 U.S. 78, 89 (1987). 20 standard applies to regulations and practices concerning all 21 correspondence between prisoners and to regulations concerning 22 incoming mail received by prisoners from nonprisoners. 23 Thornburgh, 490 U.S. at 413. 24 See Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) A The Turner See Prison officials may institute procedures for inspecting 25 "legal mail," e.g., mail sent between attorneys and prisoners, 26 see Wolff v. McDonnell, 418 U.S. 539, 576-77 (1974) (incoming 27 mail from attorneys), and mail sent from prisoners to the courts, 28 see Royse v. Superior Court, 779 F.2d 573, 574-75 (9th Cir. 1986) 6 1 (outgoing mail to court). 2 "legal mail" outside the presence of the prisoner may have an 3 impermissible "chilling" effect on the constitutional right to 4 petition the government. 5 322, 325 (9th Cir. 1996) (citing Laird v. Tatum, 408 U.S. 1, 11 6 (1972)); but cf. Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir. 7 1996), amended, 135 F.3d 1318 (9th Cir. 1998) (prison officials 8 may open and inspect mail to prisoner from courts outside 9 prisoner's presence because mail from courts, as opposed to mail But the opening and inspecting of See O'Keefe v. Van Boening, 82 F.3d from a prisoner's lawyer, is not "legal mail"). 11 United States District Court Northern District of California 10 officials must establish that legitimate penological interests 12 justify the policy or practice. 13 (mail policy that allows prison mailroom employees to open and 14 read grievances sent by prisoners to state agencies outside 15 prisoners' presence reasonable means to further legitimate 16 penological interests). 17 If so, prison See O'Keefe, 82 F.3d at 327 Prisoners have a constitutional right of access to the 18 courts. 19 Smith, 430 U.S. 817, 821 (1977). 20 violation of the right of access to the courts, the prisoner must 21 prove that there was an inadequacy in the prison's legal access 22 program that caused him an actual injury. 23 350-55. 24 the inadequacy in the prison's program hindered his efforts to 25 pursue a non-frivolous claim concerning his conviction or 26 conditions of confinement. See Lewis v. Casey, 518 U.S. 343, 350 (1996); Bounds v. To establish a claim for any See Lewis, 518 U.S. at To prove an actual injury, the prisoner must show that See id. at 354-55. 27 28 7 1 III 2 A 3 Plaintiff argues, with no support, that Defendant was 4 responsible for the letter to the California Supreme Court being 5 lost and for the order from the Court being returned to the 6 Court. 7 Plaintiff, Defendant has met her burden in demonstrating that 8 there is no material factual dispute and she is entitled to 9 prevail as a matter of law. Even viewing the evidence in a light most favorable to While Plaintiff did not file an opposition, the Court still looked to Plaintiff’s amended 11 United States District Court Northern District of California 10 complaint, but Plaintiff has failed to present any evidence that 12 a material dispute exists. 13 It is undisputed that Defendant is the supervisor of the 14 jail mailroom and does not personally process the mail. 15 also undisputed that the mailroom processes approximately 200,000 16 pieces of mail each year. 17 that any jail mail worker, let alone Defendant, was responsible 18 for the first piece of mail being lost or the second piece of 19 mail being returned to the Court. It is Plaintiff has presented no evidence 20 Plaintiff stated in his amended complaint that Defendant 21 forged the letter and forms from the United States Postal Service 22 informing him of the lost mail and was also responsible for the 23 order from this Court being returned to the Court. 24 met her burden in showing that she did not fabricate the United 25 States Postal Service letter or forms and that the loss of his 26 mail by the post office had nothing to do with jail mailroom 27 staff. 28 Court order being returned to the Court. Defendant has She has also shown that she was not responsible for the 8 It does not appear that 1 the Court order ever reached the jail because it was returned 2 with a sticker used by the post office, not the jail. 3 has failed to present any evidence or arguments to refute 4 Defendant’s evidence. 5 Plaintiff Conclusory statements, such as that an opponent is lying or 6 that documents have been fabricated without presentation of any 7 explanation of what portion of a statement or document is false 8 and without offering an explanation of one's view of the true 9 state of events are insufficient to raise a triable issue. "When the nonmoving party relies only on its own affidavits to oppose 11 United States District Court Northern District of California 10 summary judgment, it cannot rely on conclusory allegations 12 unsupported by factual data to create an issue of material fact." 13 Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993). 14 Even if the post office letter was forged and the Court’s 15 order was improperly returned, Plaintiff cannot demonstrate that 16 Defendant was responsible for either act. 17 processes more than 200,000 letters each year and there are many 18 employees who process the mail. 19 that he was denied access to the courts by either act because he 20 has not demonstrated that he was pursuing a nonfrivolous claim 21 and that he suffered an actual injury. 22 notice that the letter to the California Supreme Court was lost, 23 he could have resent a new letter to that court. 24 Plaintiff’s federal action, Case No. 15-cv-3363-TEH, was 25 dismissed without prejudice after the Court’s order was returned, 26 Plaintiff could have moved to reopen the case. 27 that after these incidents with his mail, Plaintiff has continued 28 to litigate additional civil actions without problems. The jail’s mailroom Moreover, Plaintiff cannot show 9 When Plaintiff received When It is undisputed 1 Nor has Plaintiff shown that jail procedures violated his 2 First Amendment rights to send and receive mail or that there 3 were any violations of his legal rights due the Court order being 4 lost and returned. 5 demonstrates that he has been able to send and receive many legal 6 letters and that he opened new federal cases after these two 7 isolated incidents. 8 9 A review of Plaintiff’s other federal actions Moreover, the Ninth Circuit has held that an isolated instance or occasional opening of legal mail outside the inmate's presence does not rise to the level of a constitutional 11 United States District Court Northern District of California 10 violation. 12 Cir. 1989); Davis v. Goord, 320 F.3d 346, 351 (2d. Cir. 2003) 13 (isolated incident of mail tampering usually insufficient to 14 state claim); Gardner v. Howard, 109 F.3d 427, 431 (8th Cir. 15 1997) (isolated incident of opening legal mail without evidence 16 of improper motive or resulting interference with access to 17 courts or right to counsel does not support a claim). 18 these reasons, Defendant is entitled to summary judgment. 4 19 See Stevenson v. Koskey, 877 F.2d 1435, 1441 (9th For all B 20 "A District Court may properly on its own motion dismiss an 21 action as to defendants who have not moved to dismiss where such 22 defendants are in a position similar to that of moving defendants 23 or where claims against such defendants are integrally related." 24 Silverton v. Dep't of Treasury, 644 F.2d 1341, 1345 (9th Cir. 25 1981). 26 [plaintiff] cannot possibly win relief." "Such a dismissal may be made without notice where the Omar v. Sea–Land Serv., 27 4 28 Because the Court has not found a constitutional violation, the Court will not address the qualified immunity argument. 10 1 Inc., 813 F.2d 986, 991 (9th Cir. 1987). 2 in this regard includes sua sponte dismissal as to defendants who 3 have not been served and defendants who have not yet answered or 4 appeared. 5 44 F.3d 800, 802 (9th Cir. 1995) ("We have upheld dismissal with 6 prejudice in favor of a party which had not yet appeared, on the 7 basis of facts presented by other defendants which had 8 appeared."); Ricotta v. California, 4 F. Supp. 2d 961, 978–79 9 (S.D. Cal. 1998). 10 The court's authority Columbia Steel Fabricators, Inc. v. Ahlstrom Recovery, Plaintiff only states that Jacobs was involved with the United States District Court Northern District of California 11 letter that was sent to the California Supreme Court being lost 12 and with the order being returned to this Court. 13 allegations are similar to the conclusory allegations against 14 Whittaker which were discussed at length above and Jacobs is 15 similarly situated. 16 action for the reasons set forth above. Jacobs is therefore dismissed from this 17 18 19 20 21 22 23 24 25 IV For the foregoing reasons, the Court hereby orders as follows: 1. Defendant’s motion for summary judgment (Docket No. 38) is GRANTED. 2. The Clerk shall close the file. This order terminates Docket No. 38. IT IS SO ORDERED. Dated: 2/14/2017 26 ________________________ THELTON E. HENDERSON United States District Judge 27 28 These G:\PRO-SE\TEH\CR.15\ 11

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