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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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WILLIAM BROWN,
Plaintiff,

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vs.

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ORDER OF DISMISSAL WITH
LEAVE TO AMEND

PHIL WOWAK,
Defendant.

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For the Northern District of California

United States District Court

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No. C 13-4979 PJH (PR)

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Plaintiff, who is detained at Santa Cruz County Jail, has filed a pro se civil rights
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complaint under 42 U.S.C. § 1983. The filing fee was paid as defendant has removed this
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action from state court.
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DISCUSSION
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A.

Standard of Review

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Federal courts must engage in a preliminary screening of cases in which prisoners
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seek redress from a governmental entity or officer or employee of a governmental entity.
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28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and
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dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may
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be granted, or seek monetary relief from a defendant who is immune from such relief. Id. at
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1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police
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Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
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Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of
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the claim showing that the pleader is entitled to relief." "Specific facts are not necessary;
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the statement need only '"give the defendant fair notice of what the . . . . claim is and the
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grounds upon which it rests."'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations
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omitted). Although in order to state a claim a complaint “does not need detailed factual

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allegations, . . . a plaintiff's obligation to provide the 'grounds’ of his 'entitle[ment] to relief'

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requires more than labels and conclusions, and a formulaic recitation of the elements of a

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cause of action will not do. . . . Factual allegations must be enough to raise a right to relief

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above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)

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(citations omitted). A complaint must proffer "enough facts to state a claim to relief that is

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plausible on its face." Id. at 570. The United States Supreme Court has recently explained

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the “plausible on its face” standard of Twombly: “While legal conclusions can provide the

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framework of a complaint, they must be supported by factual allegations. When there are

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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.

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For the Northern District of California

United States District Court

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1937, 1950 (2009).

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

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elements: (1) that a right secured by the Constitution or laws of the United States was

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violated, and (2) that the alleged deprivation was committed by a person acting under the

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color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

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B.

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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.

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Paff, 52 F.3d 264, 265 (9th Cir. 1995) (citing Thornburgh v. Abbott, 490 U.S. 401, 407

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(1989)). A prison, however, may adopt regulations or practices which impinge on a

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prisoner's First Amendment rights as long as the regulations are "reasonably related to

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legitimate penological interests." See Turner v. Safley, 482 U.S. 78, 89 (1987). The Turner

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standard applies to regulations and practices concerning all correspondence between

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prisoners and to regulations concerning incoming mail received by prisoners from

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non-prisoners. See Thornburgh, 490 U.S. at 413.

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In the case of outgoing correspondence from prisoners to non-prisoners, however,
an exception to the Turner standard applies. Because outgoing correspondence from
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prisoners does not, by its very nature, pose a serious threat to internal prison order and

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security, there must be a closer fit between any regulation or practice affecting such

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correspondence and the purpose it purports to serve. See id. at 411-12. Censorship in

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such instances is justified only if (1) the regulation or practice in question furthers one or

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more of the substantial governmental interests of security, order and rehabilitation, and (2)

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the limitation on First Amendment freedoms is no greater than necessary to further the

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particular government interest involved. See Procunier v. Martinez, 416 U.S. 396, 413

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(1974), overruled on other grounds, Thornburgh v. Abbott, 490 U.S. 401, 413-14 (1989).

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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)

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For the Northern District of California

United States District Court

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(incoming mail from attorneys), and mail sent from prisoners to the courts, see Royse v.

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Superior Court, 779 F.2d 573, 574-75 (9th Cir. 1986) (outgoing mail to court).

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Plaintiff is also informed that there is no constitutional right to a prison administrative

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appeal or grievance system. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003);

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Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988).

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The specifics of plaintiff’s complaint are difficult to discern.1 Plaintiff takes issue with

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the manner in which mail and postage are treated at the jail. It seems stamps are not sold,

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just pre-paid envelopes, five per week2, or large envelopes where an inmate requests

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postage be affixed and deducted from his account. Plaintiff notes that legal mail is mailed

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free of charge, but is processed by jail staff so may get delayed and in one instance his

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legal mail was returned to the jail and had to be sent again. Plaintiff argues that having to

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choose between free legal mail that can be delayed or using one of his pre-paid envelopes

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and not having the ability to buy stamps, is a violation of his rights. As plaintiff has the

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ability to send out free legal mail, larger envelopes with the cost of postage deducted from

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his account and pre-paid envelopes there does not appear to be a constitutional violation, if

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The court has also reviewed plaintiff’s additional filings. Docket Nos. 5 & 6.

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An exhibit attached by plaintiff from the jail states that more pre-paid envelopes may
be purchased if the inmate submits a request.
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this is indeed his claim. To the extent plaintiff has discussed his fear of legal mailings

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reaching the court late, he is informed that a pro se inmate’s legal mail is deemed filed on

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the date of its submission to prison authorities for mailing to the court, as opposed to the

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date of its receipt by the court clerk. Houston v. Lack, 487 U.S. 266, 276 (1988). When

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filing legal mail, plaintiff should include a signed declaration stating the date he gave the

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mail to prison officials for mailing.

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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.

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However, mail from the courts, as contrasted to mail from a prisoner's lawyer, is not "legal

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For the Northern District of California

jail officials open mail which could be legal mail that has not been marked, such as mail

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United States District Court

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mail." See Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir. 1996), amended, 135 F.3d 1318

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(9th Cir. 1998). With minute exceptions correspondence from a court to a litigant is a public

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document. See Martin v. Brewer, 830 F.2d 76, 78 (7th Cir. 1987).

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With respect to plaintiff’s issues with the inmate grievance system, as noted above

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there is no constitutional right to a grievance system. Regardless, a review of plaintiff’s

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exhibits and filings does demonstrate that jail officials responded to many of his grievances.

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The complaint will be dismissed with leave to amend. Plaintiff should more clearly present

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his allegations and identify any individual defendants so the court can understand his

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claims.

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CONCLUSION
1. The motion to submit a declaration (Docket No. 6) is GRANTED and it has been
considered by the court.

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2. The complaint is DISMISSED with leave to amend in accordance with the

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standards set forth above. The amended complaint must be filed no later than January 10,

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2014, and must include the caption and civil case number used in this order and the words

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AMENDED COMPLAINT on the first page. Because an amended complaint completely

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replaces the original complaint, plaintiff must include in it all the claims he wishes to

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present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not
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incorporate material from the original complaint by reference.
3. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the

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court informed of any change of address by filing a separate paper with the clerk headed

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“Notice of Change of Address,” and must comply with the court's orders in a timely fashion.

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Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to

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Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.
Dated: December 6, 2013.
PHYLLIS J. HAMILTON
United States District Judge

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For the Northern District of California

United States District Court

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