Brown v. Wowak

Filing 7

ORDER OF DISMISSAL WITH LEAVE TO AMEND by Judge Phyllis J. Hamilton granting 6 Motion for Leave to File (Attachments: # 1 Certificate/Proof of Service) (nahS, COURT STAFF) (Filed on 12/6/2013)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 OAKLAND DIVISION 6 7 WILLIAM BROWN, Plaintiff, 8 vs. 9 ORDER OF DISMISSAL WITH LEAVE TO AMEND PHIL WOWAK, Defendant. 11 For the Northern District of California United States District Court 10 No. C 13-4979 PJH (PR) / 12 Plaintiff, who is detained at Santa Cruz County Jail, has filed a pro se civil rights 13 complaint under 42 U.S.C. § 1983. The filing fee was paid as defendant has removed this 14 action from state court. 15 DISCUSSION 16 A. Standard of Review 17 Federal courts must engage in a preliminary screening of cases in which prisoners 18 seek redress from a governmental entity or officer or employee of a governmental entity. 19 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and 20 dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may 21 be granted, or seek monetary relief from a defendant who is immune from such relief. Id. at 22 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police 23 Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 24 Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of 25 the claim showing that the pleader is entitled to relief." "Specific facts are not necessary; 26 the statement need only '"give the defendant fair notice of what the . . . . claim is and the 27 grounds upon which it rests."'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations 28 omitted). Although in order to state a claim a complaint “does not need detailed factual 1 allegations, . . . a plaintiff's obligation to provide the 'grounds’ of his 'entitle[ment] to relief' 2 requires more than labels and conclusions, and a formulaic recitation of the elements of a 3 cause of action will not do. . . . Factual allegations must be enough to raise a right to relief 4 above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) 5 (citations omitted). A complaint must proffer "enough facts to state a claim to relief that is 6 plausible on its face." Id. at 570. The United States Supreme Court has recently explained 7 the “plausible on its face” standard of Twombly: “While legal conclusions can provide the 8 framework of a complaint, they must be supported by factual allegations. When there are 9 well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 129 S.Ct. 11 For the Northern District of California United States District Court 10 1937, 1950 (2009). 12 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 13 elements: (1) that a right secured by the Constitution or laws of the United States was 14 violated, and (2) that the alleged deprivation was committed by a person acting under the 15 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 16 B. 17 18 19 Legal Claims Plaintiff alleges violations of his right to send and receive mail and an ineffective inmate grievance system. Prisoners enjoy a First Amendment right to send and receive mail. See Witherow v. 20 Paff, 52 F.3d 264, 265 (9th Cir. 1995) (citing Thornburgh v. Abbott, 490 U.S. 401, 407 21 (1989)). A prison, however, may adopt regulations or practices which impinge on a 22 prisoner's First Amendment rights as long as the regulations are "reasonably related to 23 legitimate penological interests." See Turner v. Safley, 482 U.S. 78, 89 (1987). The Turner 24 standard applies to regulations and practices concerning all correspondence between 25 prisoners and to regulations concerning incoming mail received by prisoners from 26 non-prisoners. See Thornburgh, 490 U.S. at 413. 27 28 In the case of outgoing correspondence from prisoners to non-prisoners, however, an exception to the Turner standard applies. Because outgoing correspondence from 2 1 prisoners does not, by its very nature, pose a serious threat to internal prison order and 2 security, there must be a closer fit between any regulation or practice affecting such 3 correspondence and the purpose it purports to serve. See id. at 411-12. Censorship in 4 such instances is justified only if (1) the regulation or practice in question furthers one or 5 more of the substantial governmental interests of security, order and rehabilitation, and (2) 6 the limitation on First Amendment freedoms is no greater than necessary to further the 7 particular government interest involved. See Procunier v. Martinez, 416 U.S. 396, 413 8 (1974), overruled on other grounds, Thornburgh v. Abbott, 490 U.S. 401, 413-14 (1989). 9 Prison officials may institute procedures for inspecting "legal mail," e.g., mail sent between attorneys and prisoners, see Wolff v. McDonnell, 418 U.S. 539, 576-77 (1974) 11 For the Northern District of California United States District Court 10 (incoming mail from attorneys), and mail sent from prisoners to the courts, see Royse v. 12 Superior Court, 779 F.2d 573, 574-75 (9th Cir. 1986) (outgoing mail to court). 13 Plaintiff is also informed that there is no constitutional right to a prison administrative 14 appeal or grievance system. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); 15 Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). 16 The specifics of plaintiff’s complaint are difficult to discern.1 Plaintiff takes issue with 17 the manner in which mail and postage are treated at the jail. It seems stamps are not sold, 18 just pre-paid envelopes, five per week2, or large envelopes where an inmate requests 19 postage be affixed and deducted from his account. Plaintiff notes that legal mail is mailed 20 free of charge, but is processed by jail staff so may get delayed and in one instance his 21 legal mail was returned to the jail and had to be sent again. Plaintiff argues that having to 22 choose between free legal mail that can be delayed or using one of his pre-paid envelopes 23 and not having the ability to buy stamps, is a violation of his rights. As plaintiff has the 24 ability to send out free legal mail, larger envelopes with the cost of postage deducted from 25 his account and pre-paid envelopes there does not appear to be a constitutional violation, if 26 1 27 The court has also reviewed plaintiff’s additional filings. Docket Nos. 5 & 6. 2 28 An exhibit attached by plaintiff from the jail states that more pre-paid envelopes may be purchased if the inmate submits a request. 3 1 this is indeed his claim. To the extent plaintiff has discussed his fear of legal mailings 2 reaching the court late, he is informed that a pro se inmate’s legal mail is deemed filed on 3 the date of its submission to prison authorities for mailing to the court, as opposed to the 4 date of its receipt by the court clerk. Houston v. Lack, 487 U.S. 266, 276 (1988). When 5 filing legal mail, plaintiff should include a signed declaration stating the date he gave the 6 mail to prison officials for mailing. 7 While jail officials do not read mail labeled as “legal mail”, plaintiff also argues that from the courts. Plaintiff requests that staff look at the return address before opening mail. 10 However, mail from the courts, as contrasted to mail from a prisoner's lawyer, is not "legal 11 For the Northern District of California jail officials open mail which could be legal mail that has not been marked, such as mail 9 United States District Court 8 mail." See Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir. 1996), amended, 135 F.3d 1318 12 (9th Cir. 1998). With minute exceptions correspondence from a court to a litigant is a public 13 document. See Martin v. Brewer, 830 F.2d 76, 78 (7th Cir. 1987). 14 With respect to plaintiff’s issues with the inmate grievance system, as noted above 15 there is no constitutional right to a grievance system. Regardless, a review of plaintiff’s 16 exhibits and filings does demonstrate that jail officials responded to many of his grievances. 17 The complaint will be dismissed with leave to amend. Plaintiff should more clearly present 18 his allegations and identify any individual defendants so the court can understand his 19 claims. 20 21 22 CONCLUSION 1. The motion to submit a declaration (Docket No. 6) is GRANTED and it has been considered by the court. 23 2. The complaint is DISMISSED with leave to amend in accordance with the 24 standards set forth above. The amended complaint must be filed no later than January 10, 25 2014, and must include the caption and civil case number used in this order and the words 26 AMENDED COMPLAINT on the first page. Because an amended complaint completely 27 replaces the original complaint, plaintiff must include in it all the claims he wishes to 28 present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not 4 1 2 incorporate material from the original complaint by reference. 3. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the 3 court informed of any change of address by filing a separate paper with the clerk headed 4 “Notice of Change of Address,” and must comply with the court's orders in a timely fashion. 5 Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to 6 Federal Rule of Civil Procedure 41(b). 7 8 IT IS SO ORDERED. Dated: December 6, 2013. PHYLLIS J. HAMILTON United States District Judge 9 G:\PRO-SE\PJH\CR.13\Brown4979.dwlta.wpd 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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