Robertson v. Nonsteel et al

Filing 31


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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 REGINALD ROBERTSON, 4 5 6 7 8 No. C 11-01437 CW (PR) Plaintiff, v. N. BONSTEEL, SHERIFF GREG AHERN, Defendants. ________________________________/ 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) 9 INTRODUCTION United States District Court For the Northern District of California 10 Plaintiff, a state prisoner currently incarcerated at the 11 Santa Rita County Jail, filed this pro se civil rights action 12 pursuant to 42 U.S.C. § 1983, alleging interference with his right 13 to send legal mail when he was incarcerated at the Glen Dyer 14 Correctional Facility (GDDF) in Oakland. His motion for leave to 15 proceed in forma pauperis has been granted. 16 On July 28, 2011, Judge Fogel, to whom this case originally 17 was assigned, issued an Order finding Plaintiff's allegations 18 stated a cognizable claim for the violation of his First Amendment 19 rights. The complaint was ordered served on Defendant Deputy 20 Sheriff N. Bonsteel. The claims against Defendant Alameda County 21 Sheriff's Office were dismissed, because no allegations were made 22 against that Defendant in the complaint. Bonsteel was ordered to 23 file a motion for summary judgment or other dispositive motion 24 within sixty days from the date of the Order, i.e., by September 25 28, 2011. 26 On September 9, 2011, Plaintiff filed a first amended 27 complaint (FAC), adding an additional claim and an additional 28 1 Defendant. On September 26, 2011, the action was reassigned to 2 the undersigned. 3 On October 13, 2011, Plaintiff moved for entry of default 4 against Bonsteel for failing to respond to the original complaint. 5 On October 17, 2011, the Clerk entered default against Bonsteel. 6 Now pending before the Court is Bonsteel's motion to set 7 aside the entry of default and for the Court to screen Plaintiff's 8 FAC. DISCUSSION 9 United States District Court For the Northern District of California 10 I. Entry of Default Bonsteel moves to set aside the Clerk's entry of default on 11 12 the following grounds: (1) Plaintiff based his request for default 13 on Bonsteel's failure to respond to the original complaint as 14 ordered by the Court; (2) Plaintiff's FAC was filed prior to the 15 date Bonsteel's response to the original complaint was due; 16 (3) the FAC supercedes the original complaint and does not 17 incorporate the original complaint by reference; (4) under 28 18 U.S.C. § 1915A, the FAC must be reviewed by the Court before a 19 response is required from Bonsteel; (5) Bonsteel has not been 20 ordered served with the FAC. Good cause appearing, and in the interest of reaching the 21 22 merits of Plaintiff's claims, Bonsteel's motion is GRANTED. The 23 Clerk of the Court will be directed to set aside the entry of 24 default. 25 II. Review of the FAC 26 A. 27 Bonsteel's motion for the Court to screen the FAC under 28 28 Standard of Review 2 1 2 U.S.C. § 1915A is GRANTED. A federal court must conduct a preliminary screening in any 3 case in which a prisoner seeks redress from a governmental entity 4 or officer or employee of a governmental entity. 28 U.S.C. 5 § 1915A(a). 6 claims and dismiss any claims that are frivolous, malicious, fail 7 to state a claim upon which relief may be granted or seek monetary 8 relief from a defendant who is immune from such relief. 9 § 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 10 Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 11 1988). 12 To state a claim under 42 U.S.C. § 1983, a plaintiff must 13 allege two essential elements: (1) that a right secured by the 14 Constitution or laws of the United States was violated, and 15 (2) that the alleged violation was committed by a person acting 16 under the color of state law. 17 (1988). 18 B. 19 According to the allegations in the FAC, at all times relevant West v. Atkins, 487 U.S. 42, 48 Plaintiff's Allegations 20 to the events at issue Plaintiff was incarcerated at GDDF. 21 Bonsteel was employed at GDDF as an Alameda County Deputy Sheriff. 22 Defendant Gregory Ahern was the Sheriff of Alameda County. 23 On January 25, 2011, during breakfast in the dining area, 24 Plaintiff approached Bonsteel to hand her his out-going legal 25 mail, which must be delivered to jail officials for mailing prior 26 to the end of breakfast. 27 mail," refused to accept Plaintiff's mail, which was addressed to 28 Bonsteel, saying she "did not do legal 3 1 Plaintiff's criminal attorney at the Office of the Public 2 Defender, and threatened to place Plaintiff in solitary 3 confinement if he continued to request that she process his legal 4 mail. 5 FAC ¶¶ 9-10. Plaintiff filed an administrative appeal concerning Bonsteel's 6 actions. 7 were interviewed except Bonsteel. 8 at all levels of review. 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 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. 23 Plaintiff's Claims 1. First Amendment Claim 24 Prisoners enjoy a First Amendment right to send and receive 25 mail. See Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) 26 (citing Thornburgh v. Abbott, 490 U.S. 401, 407 (1989)). 27 28 4 While 1 prison regulations may limit the ways in which such mail must be 2 processed, outgoing correspondence from prisoners does not, by its 3 very nature, pose a serious threat to internal prison order and 4 security, consequently, there must be a close fit between any 5 regulation or practice affecting such correspondence and the 6 purpose it purports to serve. 7 See Thornburgh at 411-12. Although Plaintiff here does not allege that Bonsteel read his 8 legal mail before refusing to mail it or that such refusal 9 adversely affected his legal proceedings, the Court liberally United States District Court For the Northern District of California 10 construes Plaintiff's claim as one that Bonsteel's actions 11 constituted the unjustified censorship and delay of his outgoing 12 mail, including the threat of punishment for its obvious legal 13 content. 14 Bonsteel is cognizable. 15 1062 (9th Cir. 2008) (per curiam) (a prisoner complaint that 16 pleads facts alleging prison officials censored his outgoing mail 17 and punished him for its contents states a cognizable First 18 Amendment claim); Jackson v. Procunier, 789 F.2d 307, 311 (5th 19 Cir. 1986) (the deliberate delay of legal mail which adversely 20 affects legal proceedings presents a cognizable claim for denial 21 of access to the courts). Accordingly, Plaintiff's First Amendment claim against See Barrett v. Belleque, 544 F.3d 1060, 22 2. Sixth Amendment Claim 23 Broadly speaking, a criminal defendant has a Sixth Amendment 24 right to communicate with his attorney, although there are 25 circumstances under which such communication can be curtailed. 26 See Perry v. Leeke, 488 U.S. 272, 278-80 (1989); Geders v. United 27 States, 425 U.S. 80 (1976). 28 Bonsteel's actions deprived him of the ability to communicate with Here, Plaintiff claims that 5 1 his attorney, in violation of the Sixth Amendment. 2 Plaintiff has not alleged a concrete injury resulting from 3 Bonsteel's actions, the Court finds that the allegations, when 4 liberally construed, state a cognizable claim for relief under the 5 Sixth Amendment. Although 6 3. 7 Plaintiff alleges no facts linking Ahern to his First and Defendant Ahern Sixth Amendment claims. 9 FAC is when Plaintiff asks the Court to order that Ahern ensure 10 United States District Court For the Northern District of California 8 that, at all facilities managed by the Alameda County Sheriff's 11 Department, inmate-witnesses to unlawful acts are interviewed. Rather, the only mention of Ahern in the 12 As an initial matter, Plaintiff has not alleged facts that 13 state a claim for the denial of a constitutional right based on 14 the alleged failure to interview witnesses, nor has Ahern been 15 linked directly to such failure. 16 however, Plaintiff's request for injunctive relief from Ahern is 17 not cognizable. 18 incarcerated at GDDF, any claim for injunctive relief pertaining 19 to the conditions of confinement at that facility, including the 20 alleged interview policy, are moot. 21 1365, 1368-69 (9th Cir. 1995). 22 alleged facts showing that he will be, or has been, subjected to 23 such policy at the jail where he currently is incarcerated, his 24 claim for injunctive relief is not ripe. 25 is not ripe for adjudication if it depends on "contingent future 26 events that may not occur as anticipated, or indeed not occur at 27 all." 28 883 (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, 6 Accordingly, all 1 claims against Ahern are DISMISSED from this action. 2 CONCLUSION 3 For the foregoing reasons, the Court orders as follows: 4 1. N. Bonsteel's motion to set aside entry of default and 5 to screen the FAC is GRANTED. 6 entered on October 17, 2011 (docket no. 29) is hereby VACATED. 7 8 2. The Notice of Clerk's default All claims against Sheriff Greg Ahern are DISMISSED. Ahern is no longer a Defendant in this action. 9 3. The Clerk of the Court shall serve a copy of the FAC United States District Court For the Northern District of California 10 (docket no. 22) and all attachments thereto and a copy of this 11 Order on N. Bonsteel 's attorney, as listed on the court docket. 12 13 Additionally, the Clerk shall mail a copy of this Order to Plaintiff. 14 4. The following briefing schedule shall govern dispositive 15 motions in this action: 16 a. No later than sixty (60) days from the date of this 17 Order, Defendant shall file a motion for summary judgment or other 18 dispositive motion. 19 factual documentation and shall conform in all respects to Federal 20 Rule of Civil Procedure 56. 21 this case cannot be resolved by summary judgment, she shall so 22 inform the Court prior to the date the summary judgment motion is 23 due. 24 Plaintiff. 25 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 26 shall be filed with the Court and served on Defendant's counsel no 27 later than thirty (30) days after the date on which Defendant's 28 motion is filed. The Ninth Circuit has held that the following 7 1 notice should be given to pro se plaintiffs facing a summary 2 judgment motion: 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 8 1 by sworn declaration. 2 judgment simply by repeating the allegations of his complaint. 3 4 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. 5 d. 6 the reply brief is due. 7 unless the Court so orders at a later date. 8 9 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 10 to Rule 30(a)(2) is hereby granted to Defendant to depose 11 Plaintiff and any other necessary witnesses confined in prison. 12 6. All communications by Plaintiff with the Court must be 13 served on Defendant's counsel by mailing a true copy of the 14 document to Defendant's counsel. 15 7. It is Plaintiff's responsibility to prosecute this case. 16 Plaintiff must keep the Court informed of any change of address 17 and must comply with the Court's orders in a timely fashion. 18 8. Extensions of time are not favored, though reasonable 19 extensions will be granted. 20 must be filed no later than fifteen (15) days prior to the 21 deadline sought to be extended. 22 23 24 Any motion for an extension of time IT IS SO ORDERED. DATED: 11/7/2011 CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE 25 26 27 28 9 1 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 2 3 REGINALD ROBERTSON, 4 Case Number: CV11-01437 CW Plaintiff, 5 CERTIFICATE OF SERVICE v. 6 N BONSTEEL et al, 7 Defendant. 8 9 United States District Court For the Northern District of California 10 11 12 / 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. 13 14 16 Reginald Robertson APM873 5325 Broder Blvd. Dublin, CA 94568 17 Dated: November 7, 2011 15 18 Richard W. Wieking, Clerk By: Nikki Riley, Deputy Clerk 19 20 21 22 23 24 25 26 27 28 10

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