Alvarez v. Horel

Filing 13

ORDER DISMISSING CASE. Signed by Judge Saundra Brown Armstrong, on 11/18/09. (lrc, COURT STAFF) (Filed on 11/20/2009) Modified on 11/23/2009 (jlm, COURT STAFF).

1 2 3 SERGIO ALVAREZ, 4 5 6 7 8 9 10 United States District Court For the Northern District of California

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ) ) Plaintiff, ) ) v. ) ) ROBERT A. HOREL, et al., ) ) Defendants. ) _______________________________________ ) No. C 07-1678 SBA (PR) ORDER OF DISMISSAL

INTRODUCTION Plaintiff Sergio Alvarez, a state prisoner currently incarcerated at Pelican Bay State Prison

11 (PBSP), has filed the present pro se civil rights action pursuant to 42 U.S.C. § 1983. Thereafter, 12 Plaintiff filed a supplemental complaint.1 His motion for leave to proceed in forma pauperis has 13 been granted. 14 Venue is proper in this district because the events giving rise to the action occurred at PBSP,

15 which is located in this district. See 28 U.S.C. § 1371(b). 16 17 BACKGROUND In his supplemental complaint, Plaintiff alleges that "Defendants have denied him meaningful

18 access to the courts and adequate legal assistance by repeatedly opening his in-coming legal 19 correspondence outside of his presence and damaging, withholding and or misplacing the contents of 20 said mail." (Supp. Compl. at 1.) Between January, 2005 and August, 2007, Plaintiff filed four 602 21 inmate appeals, each involving separate alleged instances of such actions, and pursued each appeal 22 through all three formal levels of administrative review. At each level, Plaintiff's appeal was either 23 denied or partially granted.2 Plaintiff contends that Defendants' actions have resulted in Plaintiff 24 25 26 27 28
1 Plaintiff filed his Motion for Leave to File a Supplemental Complaint before Defendants had been served with his original complaint. Therefore, the Court granted his motion in an order dated February 20, 2009.

Plaintiff's third 602 appeal was partially granted by the first and second levels of review without any acknowledgment of error on the part of mail room staff. In this appeal, Plaintiff requested that staff stop stamping the contents of his outgoing mail with "Pelican Bay State Prison Security Housing Unit -- Unit D3." Subsequent to Plaintiff's appeal, Defendant Smelosky, in his capacity as associate warden, drafted a memorandum explaining the process of stamping legal mail.
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1 being "unable to understand or read his legal communications which hinders Plaintiff from using the 2 legal assistance he requires to prepare his claims . . . ." (Id. at 4.) 3 Plaintiff names the following Defendants: Former California Department of Corrections and

4 Rehabilitation (CDCR) Director D. L. Runnels, CDCR Director Tilton, PBSP Warden Robert A. 5 Horel, Former PBSP Warden Richard J. Kirkland, PBSP Correctional Captain R. Floto, PBSP 6 Facility Captain R. L. Johnson, CDCR Chief of Inmate Appeals N. Grannis, PBSP Office Service 7 Supervisor P. Carrier, PBSP Correctional Captain M. Smelosky, PBSP Associate Warden Paul J. 8 Dillard, CDCR Employee R. Somers, CDCR Employee M. Castellow, CDCR Facility Captain R. 9 Pimentel, "'C. E. 16' an employee of the CDCR and a staff member in the mail room at PBSP-SHU," 10 PBSP Business Manager M. Bean, PBSP Associate Warden P. T. Smith, PBSP Associate Warden C. United States District Court For the Northern District of California 11 M. Scavetta, "M. D. Castellaw, possibly the one and the same as [M. Castellow, supra]," PBSP 12 Correctional Counselor II "N.J.", and Does 1 through 50. (Id. at 2-3.) 13 14 15 Plaintiff seeks injunctive relief and monetary damages. (Id. at 22.) STANDARD OF REVIEW A federal court must conduct a preliminary screening in any case in which a prisoner seeks

16 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 17 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that 18 are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary 19 relief from a defendant who is immune from such relief. See id. § 1915A(b)(1), (2). Pro se 20 pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 21 696, 699 (9th Cir. 1988). 22 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 23 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the 24 alleged violation was committed by a person acting under color of state law. See West v. Atkins, 25 487 U.S. 42, 48 (1988). 26 27 28 The Court notes that Plaintiff alleges that Defendant Smelosky is liable for "issuing and enforcing underground procedures and practices governing outgoing mail." (Supp. Compl. at 21.) However, Plaintiff fails to allege a cognizable claim because he has not alleged that the procedures concerning outgoing mail caused him harm, as mentioned below. 2

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DISCUSSION Meaningful Access to the Courts/Mail Claim Prisoners enjoy a First Amendment right to send and receive mail. See Witherow v. Paff, 52

4 F.3d 264, 265 (9th Cir. 1995) (citing Thornburgh v. Abbott, 490 U.S. 401, 407 (1989)). A prison, 5 however, may adopt regulations or practices which impinge on a prisoner's First Amendment rights 6 as long as the regulations are "reasonably related to legitimate penological interests." See Turner v. 7 Safley, 482 U.S. 78, 89 (1987). 8 The inspection for contraband of non-legal mail does not violate a prisoner's constitutional

9 rights. See Witherow, 52 F.3d at 265-66 (upholding inspection of outgoing mail); Smith v. Boyd, 10 945 F.2d 1041, 1043 (8th Cir. 1991) (upholding inspection of incoming mail); Gaines v. Lane, 790 United States District Court For the Northern District of California 11 F.2d 1299, 1304 (7th Cir. 1986) (upholding inspection of outgoing and incoming mail). Prison 12 officials also may institute procedures for inspecting legal mail, for example, mail sent between 13 attorneys and prisoners, see Wolff v. McDonnell, 418 U.S. 539, 576-77 (1974) (incoming mail from 14 attorneys), and mail sent from prisoners to the courts, see Royse v. Superior Court, 779 F.2d 573, 15 574-75 (9th Cir. 1986) (outgoing mail to court). But the opening and inspecting of legal mail 16 outside the presence of the prisoner may have an impermissible chilling effect on the constitutional 17 right to petition the government. See O'Keefe v. Van Boening, 82 F.3d 322, 325 (9th Cir. 1996) 18 (citing Laird v. Tatum, 408 U.S. 1, 11 (1972)). However, "an unconstitutional chill will only exist if 19 the government action has injured the individual or places the individual in immediate danger of 20 sustaining a direct injury." O'Keefe, 82 F.3d at 325 (citing Laird, 408 U.S. at 13.) Mail from the 21 courts, as contrasted to mail from a prisoner's lawyer, is not legal mail. See Keenan v. Hall, 83 F.3d 22 1083, 1094 (9th Cir. 1996), amended, 135 F.3d 1318 (9th Cir. 1998); see also Martin v. Brewer, 830 23 F.2d 76, 78 (7th Cir. 1987) (with minute exceptions correspondence from a court to a litigant is a 24 public document). 25 Isolated incidents of mail interference without any evidence of improper motive or resulting 26 interference with the right to counsel or access to the courts do not give rise to a constitutional 27 violation. See Smith v. Maschner, 899 F.2d 940, 944 (10th Cir. 1990); Morgan v. Montanye, 516 28 F.2d 1367, 1370-71 (2d Cir. 1975) (no claim where letter from prisoner's attorney opened out of prisoner's presence in single instance), cert. denied, 424 U.S. 973 (1976); Bach v. Illinois, 504 F.2d 3

1 1100, 1102 (7th Cir.) (isolated incident of mail mishandling insufficient to state a claim under 2 § 1983), cert. denied, 418 U.S. 910 (1974); Lingo v. Boone, 402 F. Supp. 768, 773 (N.D. Cal. 1975) 3 (an isolated incident of mail censorship or interference due to prison officials' "honest error" does 4 not justify relief under § 1983). 5 Here, Plaintiff alleges that Defendant Carrier denied Plaintiff meaningful access to the courts

6 by "arbitrarily and capriciously opening and damaging Plaintiff's privileged incoming legal mail 7 outside of his presence . . . ."3 (Supp. Compl. at 20.) However, Plaintiff has failed to show that 8 Defendant Carrier's actions interfered with Plaintiff's ability to petition the government. Indeed, 9 despite Defendant's actions, Plaintiff was still able to file two separate habeas petitions in state court 10 during the time period in question. (Id. at 14, 17.) Because Plaintiff has shown no injury as a result United States District Court For the Northern District of California 11 of Defendant Carrier's actions, the opening of his mail outside of his presence did not constitute an 12 impermissible chilling effect on his right to meaningful access to the courts. See O'Keefe, 82 F.3d at 13 325. Accordingly, Plaintiff's claim against Defendant Carrier is DISMISSED with prejudice. 14 II. 15 Claim Relating to Grievance Process Plaintiff also names Defendants Tilton, Horel, Kirkland, Floto, Johnson, Grannis, Smelosky,

16 Dillard, Pimentel, Bean, Smith, Scavetta, and Castellaw, who all allegedly took part in handling 17 Plaintiff's 602 inmate appeals. 18 Interests protected by the Due Process Clause may arise from two sources -- the Due Process 19 Clause itself and laws of the States. See Meachum v. Fano, 427 U.S. 215, 223-27 (1976). There is 20 no constitutional right to a prison administrative appeal or grievance system. Ramirez v. Galaza, 21 334 F.3d 850, 860 (9th Cir. 2003). 22 However, California Code of Regulations, title 15 section 3084, et seq. grants state prisoners 23 the right to a prison appeals process. The regulations are purely procedural -- they require the 24 establishment of a procedural structure for reviewing prisoner complaints and set forth no 25 substantive standards. Instead, they provide for flexible appeal time limits, see Cal. Code Regs. tit. 26 15, § 3084.6, and, at most, that "no reprisal shall be taken against an inmate or parolee for filing an 27 28 Plaintiff also names Defendant "C. E. 16" for similar actions. However, the Court construes "C. E. 16" as a Doe Defendant and addresses Plaintiff's claim against Doe Defendants below.
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1 appeal," id. § 3084.1(d). A provision that merely sets procedural requirements, even if mandatory, 2 cannot form the basis of a constitutionally cognizable liberty interest. Smith v. Noonan, 992 F.2d 3 987, 989 (9th Cir. 1993); see, e.g., Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996) (prison 4 grievance procedure is procedural right that does not give rise to protected liberty interest requiring 5 procedural protections of Due Process Clause); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 6 1993) (same); Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982) (same). Accordingly, a 7 prison official's failure to process grievances, without more, is not actionable under § 1983. See 8 Buckley, 997 F.2d at 495; see also Ramirez, 334 F.3d at 860 (prisoner's claimed loss of liberty 9 interest in processing of his appeals does not violate due process because prisoners lack a separate 10 constitutional entitlement to a specific prison grievance system). Although there is a First United States District Court For the Northern District of California 11 Amendment right to petition government for redress of grievances, there is no right to a response or 12 any particular action. See Flick v. Alba, 932 F.2d 728 (8th Cir. 1991) ("prisoner's right to petition 13 the government for redress . . . is not compromised by the prison's refusal to entertain his 14 grievance."). 15 Thus, the aforementioned Defendants' handling of Plaintiff's grievance was not a

16 constitutional violation. Plaintiff has therefore failed to state a claim against Defendants 17 Tilton, Horel, Kirkland, Floto, Johnson, Grannis, Smelosky, Dillard, Pimentel, Bean, Smith, 18 Scavetta, and Castellaw. Accordingly, Plaintiff's claim relating to the grievance process against 19 these Defendants is DISMISSED with prejudice. 20 III. 21 Supervisory Liability Claim Finally, Plaintiff names CDCR Director Tilton, PBSP Warden Robert A. Horel, and Former

22 PBSP Warden Richard J. Kirkland. Plaintiff does not allege facts demonstrating that Defendants 23 Tilton, Horel, and Kirkland violated his federal rights, but seems to claim they are liable based on 24 the conduct of their subordinate, Defendant Carrier. Because the Court has dismissed Plaintiff's 25 claim against Defendant Carrier for lack of injury, Plaintiff's supervisory claim against Defendants 26 Tilton, Horel, and Kirkland is similarly DISMISSED. 27 IV. 28 Claim Against Remaining Defendants A. Doe Defendants

Plaintiff is uncertain as to which prison officials are interfering with his mail and names Doe 5

1 Defendants.4 The use of Doe Defendants is not favored in the Ninth Circuit. See Gillespie v. 2 Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). However, where the identity of alleged defendants 3 cannot be known prior to the filing of a complaint the plaintiff should be given an opportunity 4 through discovery to identify them. Id. Failure to afford the plaintiff such an opportunity is error. 5 See Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999). 6 However, because all of the claims in this action have been dismissed, Plaintiff need not be

7 given the opportunity to move to file an amendment to the complaint to add them as named 8 Defendants. Accordingly, Plaintiff's claims against the Doe Defendants are DISMISSED. 9 10 United States District Court For the Northern District of California B. Defendants Not Linked to Claims

In the section of the complaint form where he sets forth the parties to his complaint, Plaintiff

11 identifies Defendants Runnels, Somers, and Castellow. None of these Defendants is linked 12 specifically to the allegations in the body of the complaint, however. 13 Liability may be imposed on an individual defendant under § 1983 if the plaintiff can show

14 that the defendant proximately caused the deprivation of a federally protected right. See Leer v. 15 Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Harris v. City of Roseburg, 664 F.2d 1121, 1125 (9th 16 Cir. 1981). A person deprives another of a constitutional right within the meaning of § 1983 if he 17 does an affirmative act, participates in another's affirmative act or omits to perform an act which he 18 is legally required to do, that causes the deprivation of which the plaintiff complains. See Leer, 844 19 F.2d at 633. The inquiry into causation must be individualized and focus on the duties and 20 responsibilities of each individual defendant whose acts or omissions are alleged to have caused a 21 constitutional deprivation. See id. Sweeping conclusory allegations will not suffice; the plaintiff 22 must instead "set forth specific facts as to each individual defendant's" deprivation of protected 23 rights. Id. 24 Because Plaintiff has not linked Defendants Runnels, Somers, and Castellow to his 25 allegations, his claims cannot proceed against these Defendants. However, because all the claims in 26 this action have been dismissed, Plaintiff need not be given the opportunity to move to file amended 27 28 Though Plaintiff names "C. E. 16" and PBSP Correctional Counselor II "N. J." separately from his Doe Defendants, the Court construes them to be Doe Defendants due to Plaintiff's insufficient information concerning their identity.
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1 claims to cure this pleading deficiency. Accordingly, Plaintiff's claims against these Defendants are 2 DISMISSED from this action. 3 4 CONCLUSION For the foregoing reasons, Plaintiff's action is DISMISSED for failure to state a cognizable

5 federal claim. 6 7 The Clerk of the Court shall terminate all pending motions and close the file. IT IS SO ORDERED. SAUNDRA BROWN ARMSTRONG United States District Judge

8 DATED: 11/18/09 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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1 UNITED STATES DISTRICT COURT FOR THE 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 5 6 7 8 9 10 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. 11 That on November 20, 2009, I SERVED a true and correct copy(ies) of the attached, by placing said 12 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 13 located in the Clerk's office. 14 15 Sergio Alvarez K42605 16 Pelican Bay State Prison P.O. Box 7500 17 Crescent City, CA 95532-7500 18 Dated: November 20, 2009 19 20 21 22 23 24 25 26 27 28 Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk v. ROBERT A. HOREL et al, Defendant. / SERGIO ALVAREZ, Plaintiff, Case Number: CV07-01678 SBA CERTIFICATE OF SERVICE

United States District Court For the Northern District of California

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