Baker v. Cate et al

Filing 6

ORDER OF SERVICE. Signed by Judge Claudia Wilken on 7/7/09. (scc, COURT STAFF) (Filed on 7/7/2009)

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

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA REGINALD L. BAKER, ) ) Plaintiff, ) ) v. ) ) WARDEN ROBERT HOREL, et al., ) ) Defendants. ) _________________________________ ) No. C 08-3592 CW (PR) ORDER OF SERVICE

INTRODUCTION Plaintiff Reginald Baker is a state prisoner incarcerated at He has filed this civil rights

11 Pelican Bay State Prison (PBSP). 12 action under 42 U.S.C. § 1983. 14 13 forma pauperis has been granted.

His motion for leave to proceed in

Venue is proper in this Court because the injuries complained

15 of occurred at PBSP in Del Norte County, which is located within 16 the Northern District of California. 17 1391(b). 18 19 BACKGROUND Plaintiff alleges that PBSP officials wrongfully deprived him See 28 U.S.C. §§ 84(a),

20 of personal property and also violated his First Amendment rights. 21 Specifically, on September 25, 2007, PBSP Correctional Captain C. 22 Ducart signed a "Notice of Disapproval" from PBSP's "Receiving and 23 Release," which refused to allow Plaintiff to possess two "art 24 books," which he "in good faith, ordered through his family." 25 (Compl. at 3.) Plaintiff alleges the books contained "drawings of (Compl., Ex. B at 8.) 26 fictional characters, not real people."

27 PBSP prison officials allege that the books contained "frontal 28 nudity," including "drawings of women with exposed breasts" on

1 three pages of one book and "drawings of women's breasts, 2 genitalia, and various sexual explicit images" on five pages of 3 another book. (Compl., Ex. D at 14.) Plaintiff claims that he

4 asked the officers to remove the pages containing nudity from both 5 books, but they refused to do so. (Compl., Ex. B. at 10.)

6 Plaintiff sought permission to receive these books, using an inmate 7 grievance form, but his request was denied at all three levels of 8 administrative review. 9 Plaintiff names the following Defendants: California 10 Department of Corrections and Rehabilitation (CDCR) Secretary M. United States District Court For the Northern District of California 11 Cate, Chief of the Inmate Appeals Branch N. Grannis, Appeals 12 Examiner J. Hutchins, PBSP Warden R. Horel, PBSP Associate Warden 13 M. Yax, PBSP Correctional Captain C. Ducart and PBSP Correctional 14 Sergeant S. Bradley. In this action, he seeks to enjoin the CDCR 15 from enforcing the regulation preventing his possession of the art 16 books, to propose an amendment to the regulation "for exceptions 17 regarding art material," to be reimbursed for the books that were 18 destroyed and to be awarded "any other damages the Court sees fit 19 to order." 20 21 I. 22 Standard of Review A federal court must conduct a preliminary screening in any (Compl. at 4.) DISCUSSION

23 case in which a prisoner seeks redress from a governmental entity 24 or officer or employee of a governmental entity. 25 § 1915A(a). 28 U.S.C.

In its review, the court must identify any cognizable

26 claims and dismiss any claims that are frivolous, malicious, fail 27 to state a claim upon which relief may be granted or seek monetary 28 relief from a defendant who is immune from such relief. § 1915A(b)(1), (2). 2 Id.

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To state a claim under 42 U.S.C. § 1983, a plaintiff must (1) that a right secured by the

2 allege two essential elements:

3 Constitution or laws of the United States was violated, and 4 (2) that the alleged violation was committed by a person acting 5 under the color of state law. 6 (1988). West v. Atkins, 487 U.S. 42, 48 Balistreri

Pro se pleadings must be liberally construed.

7 v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). 8 II. 9 10 United States District Court For the Northern District of California Legal Claims A. Deprivation of Property Claim

When a prisoner suffers a property loss under the authority of That is, where the

11 state law, a due process claim may be stated.

12 confiscation is made by officials acting under the apparent 13 authority of state procedures, regulations or statutes designed to 14 control the actions of state officials, due process requires a 15 meaningful hearing on the matter. See Logan v. Zimmerman Brush 16 Co., 455 U.S. 422, 437 (1982); Armendariz v. Penman, 31 F.3d 860, 17 866 (9th Cir. 1994), aff'd in part on relevant grounds and vacated 18 in part on other grounds on reh'g en banc, 75 F.3d 1311 (9th Cir. 19 1996) (en banc). Here, Plaintiff was deprived of his property 20 because it met the state definition of prison contraband; 21 therefore, the deprivation occurred under the authority of state 22 law. 23 When a prisoner suffers a property loss that is random and 24 unauthorized his remedy lies with the state, as neither the 25 negligent nor intentional deprivation of property states a due 26 process claim under § 1983 under such circumstances. See Parratt 27 v. Taylor, 451 U.S. 527, 535-44 (1981) (state employee negligently 28 lost prisoner's hobby kit), overruled in part on other grounds, 3

1 Daniels v. Williams, 474 U.S. 327, 330-31 (1986); Hudson v. Palmer, 2 468 U.S. 517, 533 (1984) (intentional destruction of inmate's 3 property). The availability of an adequate state post-deprivation

4 remedy, for example a state tort action, precludes relief because 5 it provides adequate procedural due process. 6 782 F.2d 825, 826 (9th Cir. 1986). King v. Massarweh,

If the deprivation is not

7 random and unauthorized, but the result of "established state 8 procedure," the availability of a post-termination tort action does 9 not necessarily provide due process. 10 37. United States District Court For the Northern District of California See Logan, 455 U.S. at 435-

Parratt does not apply where the state has procedures designed

11 to control the actions of state officials and the officials act 12 pursuant to those procedures. See Zimmerman v. City of Oakland, In 13 255 F.3d 734, 738 (9th Cir. 2001); Armendariz, 31 F.3d at 866. 14 those instances, the Fourteenth Amendment requires "'an 15 opportunity . . . granted at a meaningful time and in a meaningful 16 manner,' . . . for a hearing appropriate to the nature of the 17 case.'" 18 Logan, 455 U.S. at 437.

Here, it is clear from the complaint that Plaintiff was

19 provided with a meaningful hearing and an opportunity to express 20 his views with respect to the property's confiscation.1 21 Accordingly, Plaintiff's deprivation of property claim is DISMISSED 22 with prejudice for failure to state a claim upon which relief may 23 be granted. 24 25 26 27 28 The hearing need not always be prior to deprivation, as "the necessity of quick action by the state or the impracticability of any pre-deprivation process" are important considerations. See Logan, 455 U.S. at 436 (quoting Parratt, 451 U.S. at 539); Armendariz, 31 F.3d at 866 (summary governmental action taken in emergencies and designed to protect public health, safety and welfare do not violate due process).
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B.

First Amendment Claim

Plaintiff asserts that Defendants' refusal to allow him access

3 to his art books violated his First Amendment right to freedom of 4 speech. A prison inmate retains those First Amendment rights not

5 inconsistent with his status as a prisoner or with legitimate 6 penological objectives of the corrections system. 7 Procunier, 417 U.S. 817, 822 (1974). See Pell v.

Regulations affecting

8 prisoners' access to publications are valid if they are reasonably 9 related to legitimate penological interests. 11 78, 89 (1987)). 12 In Turner, the Supreme Court identified four factors to 13 consider when determining whether a regulation is reasonably 14 related to legitimate penological interests: (1) whether there is 15 a "valid, rational connection between the prison regulation and the 16 legitimate governmental interest put forward to justify it"; 17 (2) "whether there are alternative means of exercising the right 18 that remain open to prison inmates"; (3) "the impact accommodation 19 of the asserted constitutional right will have on guards and other 20 inmates and on the allocation of prison resources generally"; and 21 (4) the "absence of ready alternatives", or, in other words, 22 whether the rule at issue is an "exaggerated response to prison 23 concerns." Turner, 482 U.S. at 89-90. A regulation restricting 24 certain publications is "neutral" if prison administrators draw 25 distinctions between publications solely on the basis of their 26 potential implications for prison security. 28 5 See, e.g., Mauro v. 27 Arpaio, 188 F.3d 1054, 1059-60 (9th Cir. 1999) (en banc) (ban on See Thornburgh v. 10 Abbott, 490 U.S. 401, 413 (1989) (citing Turner v. Safley, 482 U.S. United States District Court For the Northern District of California

1 "sexually explicit materials . . . that show frontal nudity" 2 expressly aimed at maintaining jail security, rehabilitating 3 inmates and reducing sexual harassment of female detention officers 4 found "neutral" because jail administrators drew distinction 5 between materials solely on the basis of the materials' potential 6 effect on the jail's legitimate objectives). Conversely,

7 regulations to be viewed with caution include those which 8 categorically prohibit access to a broad range of materials, or 9 "fairly invite prison officials and employees to apply their own 10 personal prejudices and opinions as standards for [] censorship." United States District Court For the Northern District of California 11 Thornburgh, 490 U.S. at 416 n.14 (citation omitted); see, e.g., 12 Pepperling v. Crist, 678 F.2d 787, 790 (9th Cir. 1982) (prison 13 officials may not capriciously apply blanket regulation prohibiting 14 sexually explicit magazines). 15 The parties dispute whether the books in question are subject 16 to the "art material" exception to the prison regulation. 17 Furthermore, there could have been other "ready alternatives" to 18 forfeiture of these types of books, for example, allowing inmates 19 to agree to the removal of offensive pages as opposed to forfeiting 20 the entire book. As mentioned above, Plaintiff alleges that he 21 asked the officers to remove the pages containing nudity instead of 22 forfeiting the entire book, but they refused to do so. Thus, 23 Plaintiff's allegations, when liberally construed, state a 24 cognizable First Amendment claim against Defendant Ducart. See 25 Thornburgh, 490 U.S. at 413 (holding prison regulations limiting 26 inmates' access to publications or other information must be 27 reasonably related to legitimate penological interests). 28 6

1 2

C.

Claim Relating to Grievance Process

Plaintiff also alleges that Defendants Bradley, Yax, Horel,

3 Hutchins and Grannis, who reviewed Plaintiff's appeals, did not 4 remedy the alleged constitutional violation. Although there is a

5 First Amendment right to petition government for redress of 6 grievances, there is no right to a response or any particular 7 action. See Flick v. Alba, 932 F.2d 728 (8th Cir. 1991)

8 ("prisoner's right to petition the government for redress . . . is 9 not compromised by the prison's refusal to entertain his 10 grievance."). United States District Court For the Northern District of California Plaintiff has therefore failed to state a claim 11 against Defendants Bradley, Yax, Horel, Hutchins and Grannis 12 relating to the grievance process. 14 DISMISSED with prejudice. 15 16 D. Supervisory Liability Claim Accordingly, Plaintiff's claim 13 against these Defendants relating to the grievance process is

In addition to naming Defendants Ducart, Bradley, Yax, Horel,

17 Hutchins and Grannis, Plaintiff also names CDCR Secretary M. Cate 18 in his supervisory capacity. A supervisor may be liable under 19 § 1983 upon a showing of (1) personal involvement in the 20 constitutional deprivation or (2) a sufficient causal connection 21 between the supervisor's wrongful conduct and the constitutional 22 violation. Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Here, Plaintiff has 23 Cir. 1991) (en banc) (citation omitted). 24 alleged neither. 25 Accordingly, Plaintiff's supervisory liability claim against Plaintiff may 26 Defendant Cate is DISMISSED with leave to amend. 28 under the standards explained above. 7

27 file an amendment to the complaint alleging supervisory liability

1 2 3

CONCLUSION For the foregoing reasons, the Court orders as follows: 1. Plaintiff's deprivation of property claim is DISMISSED

4 with prejudice for failure to state a claim upon which relief may 5 be granted. 6 2. Plaintiff has stated a cognizable First Amendment claim

7 against Defendant Ducart. 8 3. Plaintiff's claim against Defendants Bradley, Yax, Horel,

9 Hutchins and Grannis relating to the grievance process is DISMISSED 10 with prejudice. United States District Court For the Northern District of California 11 4. Plaintiff's supervisory liability claim against Defendant 12 Cate is DISMISSED WITH LEAVE TO AMEND as indicated above. 13 5. Within thirty (30) days of the date of this Order 14 Plaintiff may file an amended supervisory liability claim against 15 Defendant Cate as set forth above in Section II(C) of this Order. 16 (Plaintiff shall resubmit only that claim and not the entire 17 complaint.) The failure to do so will result in the dismissal 18 without prejudice of the supervisory liability claim against 19 Defendant Cate. 20 6. The Clerk of the Court shall mail a Notice of Lawsuit and 21 Request for Waiver of Service of Summons, two copies of the Waiver 22 of Service of Summons, a copy of the complaint and all attachments 23 thereto (docket no. 1) and a copy of this Order to Correctional 24 Captain C. Ducart at PBSP. The Clerk of the Court shall also mail 25 a copy of the complaint and a copy of this Order to the State 26 Attorney General's Office in San Francisco. 28 Additionally, the 27 Clerk shall mail a copy of this Order to Plaintiff. 7. Defendant is cautioned that Rule 4 of the Federal Rules 8

1 of Civil Procedure requires him to cooperate in saving unnecessary 2 costs of service of the summons and complaint. Pursuant to Rule 4,

3 if Defendant, after being notified of this action and asked by the 4 Court, on behalf of Plaintiff, to waive service of the summons, 5 fails to do so, he will be required to bear the cost of such 6 service unless good cause be shown for their failure to sign and 7 return the waiver form. If service is waived, this action will

8 proceed as if Defendant had been served on the date that the waiver 9 is filed, except that pursuant to Rule 12(a)(1)(B), Defendant will 10 not be required to serve and file an answer before sixty (60) days United States District Court For the Northern District of California 11 from the date on which the request for waiver was sent. 13 service of summons is necessary.) (This 12 allows a longer time to respond than would be required if formal Defendant is asked to read the 14 statement set forth at the foot of the waiver form that more 15 completely describes the duties of the parties with regard to 16 waiver of service of the summons. If service is waived after the 17 date provided in the Notice but before Defendant has been 18 personally served, the Answer shall be due sixty (60) days from the 19 date on which the request for waiver was sent or twenty (20) days 20 from the date the waiver form is filed, whichever is later. 21 8. Defendant shall answer the complaint in accordance with The following briefing 22 the Federal Rules of Civil Procedure. 24

23 schedule shall govern dispositive motions in this action: a. No later than ninety (90) days from the date his 25 answer is due, Defendant shall file a motion for summary judgment 26 or other dispositive motion. The motion shall be supported by 27 adequate factual documentation and shall conform in all respects to 28 Federal Rule of Civil Procedure 56. 9 If Defendant is of the opinion

1 that this case cannot be resolved by summary judgment, he shall so 2 inform the Court prior to the date the summary judgment motion is 3 due. All papers filed with the Court shall be promptly served on

4 Plaintiff. 5 b. Plaintiff's opposition to the dispositive motion

6 shall be filed with the Court and served on Defendant no later than 7 sixty (60) days after the date on which Defendant's motion is 8 filed. 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 The Ninth Circuit has held that the following notice should

9 be given to pro se plaintiffs facing a summary judgment motion: The defendant has made a motion for summary judgment by which they seek to have your case dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must do in order to oppose a motion for summary judgment. Generally, summary judgment must be granted when there is no genuine issue of material fact -- that is, if there is no real dispute about any fact that would affect the result of your case, the party who asked for summary judgment is entitled to judgment as a matter of law, which will end your case. When a party you are suing makes a motion for summary judgment that is properly supported by declarations (or other sworn testimony), you cannot simply rely on what your complaint says. Instead, you must set out specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts shown in the defendant's declarations and documents and show that there is a genuine issue of material fact for trial. If you do not submit your own evidence in opposition, summary judgment, if appropriate, may be entered against you. If summary judgment is granted [in favor of the defendants], your case will be dismissed and there will be no trial. See Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc). Plaintiff is advised to read Rule 56 of the Federal Rules of Civil Procedure and Celotex Corp. v. Catrett, 477 U.S. 317 (1986) 10

1 (party opposing summary judgment must come forward with evidence 2 showing triable issues of material fact on every essential element 3 of his claim). Plaintiff is cautioned that because he bears the

4 burden of proving his allegations in this case, he must be prepared 5 to produce evidence in support of those allegations when he files 6 his opposition to Defendant's dispositive motion. Such evidence

7 may include sworn declarations from himself and other witnesses to 8 the incident, and copies of documents authenticated by sworn 9 declaration. 11 Plaintiff will not be able to avoid summary judgment 10 simply by repeating the allegations of his complaint. United States District Court For the Northern District of California c. If Defendant wishes to file a reply brief, he shall 12 do so no later than thirty (30) days after the date Plaintiff's 13 opposition is filed. 14 d. The motion shall be deemed submitted as of the date No hearing will be held on the motion 15 the reply brief is due. 17

16 unless the Court so orders at a later date. 9. Discovery may be taken in this action in accordance with Leave of the Court pursuant 18 the Federal Rules of Civil Procedure.

19 to Rule 30(a)(2) is hereby granted to Defendants to depose 20 Plaintiff and any other necessary witnesses confined in prison. 21 10. All communications by Plaintiff with the Court must be 22 served on Defendant, or Defendant's counsel once counsel has been 23 designated, by mailing a true copy of the document to Defendant or 24 Defendant's counsel. 25 11. It is Plaintiff's responsibility to prosecute this case. 26 Plaintiff must keep the Court informed of any change of address and 27 must comply with the Court's orders in a timely fashion. 28 12. Extensions of time are not favored, though reasonable 11

1 extensions will be granted.

Any motion for an extension of time

2 must be filed no later than fifteen (15) days prior to the deadline 3 sought to be extended. 4 IT IS SO ORDERED. CLAUDIA WILKEN United States District Judge

5 DATED: 7/7/09 6 7 8 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 2 3 4 5 6 7 8 9 v. M. CATE et al, Defendant. REGINALD L. BAKER, Plaintiff,

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CV08-03592 CW CERTIFICATE OF SERVICE

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United States District Court For the Northern District of California

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 July 7, 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 Reginald L. Baker F-24891 16 Pelican Bay State Prison P.O. Box 7500 17 Crescent City, CA 95532 18 Dated: July 7, 2009 19 20 21 22 23 24 25 26 27 28
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Richard W. Wieking, Clerk By: Sheilah Cahill, Deputy Clerk

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