Robertson v. Nonsteel et al

Filing 31

ORDER by Judge Claudia Wilken GRANTING DEFENDANT N. BONSTEEL'S 30 MOTION TO SET ASIDE 29 CLERK'S ENTRY OF DEFAULT AND SCREEN FIRST AMENDED COMPLAINT; DISMISSING CLAIMS AGAINST DEFENDANT AHERN; SERVING FIRST AMENDED COMPLAINT. (ndr, COURT STAFF) (Filed on 11/7/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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REGINALD ROBERTSON,

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No. C 11-01437 CW (PR)

Plaintiff,
v.
N. BONSTEEL, SHERIFF GREG AHERN,
Defendants.
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ORDER GRANTING DEFENDANT N.
BONSTEEL'S MOTION TO SET
ASIDE CLERK'S ENTRY OF
DEFAULT AND SCREEN FIRST
AMENDED COMPLAINT;
DISMISSING CLAIMS AGAINST
DEFENDANT AHERN; SERVING
FIRST AMENDED COMPLAINT
(Docket no. 30)

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INTRODUCTION
United States District Court
For the Northern District of California

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Plaintiff, a state prisoner currently incarcerated at the
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Santa Rita County Jail, filed this pro se civil rights action
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pursuant to 42 U.S.C. § 1983, alleging interference with his right
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to send legal mail when he was incarcerated at the Glen Dyer
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Correctional Facility (GDDF) in Oakland.

His motion for leave to

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proceed in forma pauperis has been granted.
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On July 28, 2011, Judge Fogel, to whom this case originally
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was assigned, issued an Order finding Plaintiff's allegations
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stated a cognizable claim for the violation of his First Amendment
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rights.

The complaint was ordered served on Defendant Deputy

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Sheriff N. Bonsteel.

The claims against Defendant Alameda County

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Sheriff's Office were dismissed, because no allegations were made
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against that Defendant in the complaint.

Bonsteel was ordered to

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file a motion for summary judgment or other dispositive motion
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within sixty days from the date of the Order, i.e., by September
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28, 2011.
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On September 9, 2011, Plaintiff filed a first amended
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complaint (FAC), adding an additional claim and an additional
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Defendant.

On September 26, 2011, the action was reassigned to

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the undersigned.

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On October 13, 2011, Plaintiff moved for entry of default

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against Bonsteel for failing to respond to the original complaint.

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On October 17, 2011, the Clerk entered default against Bonsteel.

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Now pending before the Court is Bonsteel's motion to set

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aside the entry of default and for the Court to screen Plaintiff's

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FAC.
DISCUSSION

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United States District Court
For the Northern District of California

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I.

Entry of Default
Bonsteel moves to set aside the Clerk's entry of default on

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the following grounds: (1) Plaintiff based his request for default

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on Bonsteel's failure to respond to the original complaint as

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ordered by the Court; (2) Plaintiff's FAC was filed prior to the

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date Bonsteel's response to the original complaint was due;

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(3) the FAC supercedes the original complaint and does not

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incorporate the original complaint by reference; (4) under 28

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U.S.C. § 1915A, the FAC must be reviewed by the Court before a

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response is required from Bonsteel; (5) Bonsteel has not been

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ordered served with the FAC.
Good cause appearing, and in the interest of reaching the

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merits of Plaintiff's claims, Bonsteel's motion is GRANTED.

The

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Clerk of the Court will be directed to set aside the entry of

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default.

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II.

Review of the FAC

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A.

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Bonsteel's motion for the Court to screen the FAC under 28

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Standard of Review

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U.S.C. § 1915A is GRANTED.
A federal court must conduct a preliminary screening in any

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case in which a prisoner seeks redress from a governmental entity

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or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a).

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claims and dismiss any claims that are frivolous, malicious, fail

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to state a claim upon which relief may be granted or seek monetary

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relief from a defendant who is immune from such relief.

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§ 1915A(b)(1), (2).

In its review, the court must identify any cognizable

Id.

Pro se pleadings must be liberally construed.

United States District Court
For the Northern District of California

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Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.

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1988).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must

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allege two essential elements: (1) that a right secured by the

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Constitution or laws of the United States was violated, and

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(2) that the alleged violation was committed by a person acting

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under the color of state law.

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(1988).

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B.

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According to the allegations in the FAC, at all times relevant

West v. Atkins, 487 U.S. 42, 48

Plaintiff's Allegations

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to the events at issue Plaintiff was incarcerated at GDDF.

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Bonsteel was employed at GDDF as an Alameda County Deputy Sheriff.

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Defendant Gregory Ahern was the Sheriff of Alameda County.

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On January 25, 2011, during breakfast in the dining area,

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Plaintiff approached Bonsteel to hand her his out-going legal

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mail, which must be delivered to jail officials for mailing prior

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to the end of breakfast.

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mail," refused to accept Plaintiff's mail, which was addressed to

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Bonsteel, saying she "did not do legal

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Plaintiff's criminal attorney at the Office of the Public

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Defender, and threatened to place Plaintiff in solitary

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confinement if he continued to request that she process his legal

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mail.

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FAC ¶¶ 9-10.

Plaintiff filed an administrative appeal concerning Bonsteel's

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actions.

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were interviewed except Bonsteel.

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at all levels of review.

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United States District Court
For the Northern District of California

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Although an investigation was conducted, no witnesses
Plaintiff's appeal was denied

Plaintiff alleges:
As a result of defendant, N. Bonsteel's acts, plaintiff
was unable to communicate a desire and instruction-–to
counsel-–to focus on attempting to reduce two of the
charged counts being faced. Or, if possible, to have
them removed during the preliminary examination, which
was held on February 3, 2011.
FAC ¶ 16.
Based on such allegations, Plaintiff claims Bonsteel's actions
violated his First Amendment right to freedom of speech and his
Sixth Amendment right to the assistance of counsel.
He asks that Bonsteel be reprimanded and ordered to pay
Plaintiff compensatory damages.

He also seeks injunctive relief

ordering Ahern to ensure that, at all facilities managed by the
Alameda County Sheriff's Department, inmate-witnesses to unlawful
acts are interviewed.
C.

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Plaintiff's Claims
1.

First Amendment Claim

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Prisoners enjoy a First Amendment right to send and receive
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mail.

See 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)).
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While

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prison regulations may limit the ways in which such mail must be

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processed, outgoing correspondence from prisoners does not, by its

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very nature, pose a serious threat to internal prison order and

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security, consequently, there must be a close fit between any

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regulation or practice affecting such correspondence and the

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purpose it purports to serve.

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See Thornburgh at 411-12.

Although Plaintiff here does not allege that Bonsteel read his

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legal mail before refusing to mail it or that such refusal

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adversely affected his legal proceedings, the Court liberally

United States District Court
For the Northern District of California

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construes Plaintiff's claim as one that Bonsteel's actions

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constituted the unjustified censorship and delay of his outgoing

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mail, including the threat of punishment for its obvious legal

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content.

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Bonsteel is cognizable.

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1062 (9th Cir. 2008) (per curiam) (a prisoner complaint that

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pleads facts alleging prison officials censored his outgoing mail

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and punished him for its contents states a cognizable First

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Amendment claim); Jackson v. Procunier, 789 F.2d 307, 311 (5th

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Cir. 1986) (the deliberate delay of legal mail which adversely

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affects legal proceedings presents a cognizable claim for denial

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of access to the courts).

Accordingly, Plaintiff's First Amendment claim against
See Barrett v. Belleque, 544 F.3d 1060,

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2.

Sixth Amendment Claim

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Broadly speaking, a criminal defendant has a Sixth Amendment

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right to communicate with his attorney, although there are

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circumstances under which such communication can be curtailed.

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See Perry v. Leeke, 488 U.S. 272, 278-80 (1989); Geders v. United

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States, 425 U.S. 80 (1976).

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Bonsteel's actions deprived him of the ability to communicate with

Here, Plaintiff claims that

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his attorney, in violation of the Sixth Amendment.

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Plaintiff has not alleged a concrete injury resulting from

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Bonsteel's actions, the Court finds that the allegations, when

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liberally construed, state a cognizable claim for relief under the

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Sixth Amendment.

Although

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3.

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Plaintiff alleges no facts linking Ahern to his First and

Defendant Ahern

Sixth Amendment claims.

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FAC is when Plaintiff asks the Court to order that Ahern ensure

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United States District Court
For the Northern District of California

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that, at all facilities managed by the Alameda County Sheriff's

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Department, inmate-witnesses to unlawful acts are interviewed.

Rather, the only mention of Ahern in the

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As an initial matter, Plaintiff has not alleged facts that

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state a claim for the denial of a constitutional right based on

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the alleged failure to interview witnesses, nor has Ahern been

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linked directly to such failure.

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however, Plaintiff's request for injunctive relief from Ahern is

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not cognizable.

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incarcerated at GDDF, any claim for injunctive relief pertaining

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to the conditions of confinement at that facility, including the

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alleged interview policy, are moot.

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1365, 1368-69 (9th Cir. 1995).

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alleged facts showing that he will be, or has been, subjected to

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such policy at the jail where he currently is incarcerated, his

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claim for injunctive relief is not ripe.

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is not ripe for adjudication if it depends on "contingent future

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events that may not occur as anticipated, or indeed not occur at

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all."

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883 (9th Cir. 1989) (internal citation omitted).

Even if such facts were alleged,

First, because Plaintiff no longer is

See Dilley v. Gunn, 64 F.3d

Second, because Plaintiff has not

Specifically, an issue

18 Unnamed "John Smith" Prisoners v. Meese, 871 F.2d 881,

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Accordingly, all

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claims against Ahern are DISMISSED from this action.

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CONCLUSION

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For the foregoing reasons, the Court orders as follows:

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1.

N. Bonsteel's motion to set aside entry of default and

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to screen the FAC is GRANTED.

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entered on October 17, 2011 (docket no. 29) is hereby VACATED.

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2.

The Notice of Clerk's default

All claims against Sheriff Greg Ahern are DISMISSED.

Ahern is no longer a Defendant in this action.

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3.

The Clerk of the Court shall serve a copy of the FAC

United States District Court
For the Northern District of California

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(docket no. 22) and all attachments thereto and a copy of this

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Order on N. Bonsteel 's attorney, as listed on the court docket.

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Additionally, the Clerk shall mail a copy of this Order to
Plaintiff.

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4.

The following briefing schedule shall govern dispositive

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motions in this action:

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a.

No later than sixty (60) days from the date of this

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Order, Defendant shall file a motion for summary judgment or other

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dispositive motion.

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factual documentation and shall conform in all respects to Federal

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Rule of Civil Procedure 56.

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this case cannot be resolved by summary judgment, she shall so

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inform the Court prior to the date the summary judgment motion is

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due.

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Plaintiff.

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The motion shall be supported by adequate

If Defendant is of the opinion that

All papers filed with the Court shall be promptly served on

b.

Plaintiff's opposition to the dispositive motion

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shall be filed with the Court and served on Defendant's counsel no

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later than thirty (30) days after the date on which Defendant's

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motion is filed.

The Ninth Circuit has held that the following
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notice should be given to pro se plaintiffs facing a summary

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judgment motion:

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United States District Court
For the Northern District of California

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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)
(party opposing summary judgment must come forward with evidence
showing triable issues of material fact on every essential element
of his claim).

Plaintiff is cautioned that because he bears the

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

Such

evidence may include sworn declarations from himself and other
witnesses to the incident, and copies of documents authenticated
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by sworn declaration.

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judgment simply by repeating the allegations of his complaint.

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c.

Plaintiff will not be able to avoid summary

Defendant shall file a reply brief no later than

fifteen (15) days after the date Plaintiff's opposition is filed.

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d.

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the reply brief is due.

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unless the Court so orders at a later date.

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5.

The motion shall be deemed submitted as of the date
No hearing will be held on the motion

Discovery may be taken in this action in accordance with

the Federal Rules of Civil Procedure.

Leave of the Court pursuant

United States District Court
For the Northern District of California

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to Rule 30(a)(2) is hereby granted to Defendant to depose

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Plaintiff and any other necessary witnesses confined in prison.

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6.

All communications by Plaintiff with the Court must be

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served on Defendant's counsel by mailing a true copy of the

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document to Defendant's counsel.

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7.

It is Plaintiff's responsibility to prosecute this case.

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Plaintiff must keep the Court informed of any change of address

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and must comply with the Court's orders in a timely fashion.

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8.

Extensions of time are not favored, though reasonable

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extensions will be granted.

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must be filed no later than fifteen (15) days prior to the

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deadline sought to be extended.

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Any motion for an extension of time

IT IS SO ORDERED.
DATED: 11/7/2011
CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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REGINALD ROBERTSON,
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Case Number: CV11-01437 CW
Plaintiff,

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CERTIFICATE OF SERVICE
v.

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N BONSTEEL et al,
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Defendant.
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United States District Court
For the 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.
That on November 7, 2011, 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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Reginald Robertson APM873
5325 Broder Blvd.
Dublin, CA 94568

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Dated: November 7, 2011

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Richard W. Wieking, Clerk
By: Nikki Riley, Deputy Clerk

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