Austin v. Momoa et al

Filing 6

ORDER DISMISSING COMPLAINT AND ACTION 1 ~ Complaint is DISMISSED for failure to state a claim, pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915(A)(b)(1). ~ Signed by JUDGE DAVID ALAN EZRA on 12/1/2011. (afc) CERTIFICA TE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications will be served by first class mail on December 2, 2011.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
GERALD LEWIS AUSTIN,
#A1076082,
Plaintiff,
vs.
CORRECTIONAL OFFICER MOMOA,
WITNESS SERGEANT BERNARD
KUANUU, JR., INMATE SILVA,
Defendants.
____________________________

)
)
)
)
)
)
)
)
)
)
)
)
)

CIV. NO. 11-00707 DAE-BMK
ORDER DISMISSING COMPLAINT AND
ACTION

ORDER DISMISSING COMPLAINT AND ACTION
Before the court is pro se Plaintiff Gerald Lewis
Austin’s prisoner civil rights complaint.

Austin is incarcerated

at the Halawa Correctional Facility (“HCF”) and is proceeding in
forma pauperis.

ECF #4.

Austin names Adult Correctional Officer

(“ACO”) Sergeant Momoa (“Momoa”) in his official capacity,
alleging that Momoa improperly handled Austin’s mail by allowing
inmate Silva to deliver it to Austin.1
Austin’s Complaint is DISMISSED for failure to state a
claim, pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915(A)(b)(1).
I. STATUTORY SCREENING
The court must screen all civil actions brought by
prisoners that relate to prison conditions and/or seek redress
from a governmental entity, officer, or employee of a
1

Austin names ACO Kuanuu and inmate Silva in the caption,
but clarifies within the Complaint that his claims are against
Momoa only.

governmental entity.

28 U.S.C. § 1915A(a).

The court must

dismiss a complaint or portion thereof if its claims are legally
frivolous or malicious, fail to state a claim on which relief may
be granted, or seek monetary relief from a defendant who is
immune from such relief.

28 U.S.C. § 1915(e)(2); 28 U.S.C.

§ 1915A(b); 42 U.S.C. § 1997e (c)(1).
A complaint may be dismissed as a matter of law for
failure to state a claim for (1) lack of a cognizable legal
theory; or (2) insufficient facts under a cognizable legal
theory.

Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699

(9th Cir. 1990).

To state a claim, a pleading must contain a

“short and plain statement of the claim showing that the pleader
is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

While Rule 8

does not demand detailed factual allegations, “it demands more
than an unadorned, the-defendant-unlawfully-harmed-me
accusation.”

Ashcroft v. Iqbal, 556 U.S. 662, ---, 129 S. Ct.

1937, 1949 (2009).

“Threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do not
suffice.”

Id.
“[A] complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible
on its face.’”

Id. (quoting Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 570 (2007)).

A claim is plausible “when the plaintiff

pleads factual content that allows the court to draw the

2

reasonable inference that the defendant is liable for the
misconduct alleged.”

Id.

“Determining whether a complaint

states a plausible claim for relief [is] . . . a context-specific
task that requires the reviewing court to draw on its judicial
experience and common sense.”

Id. at 1950.

Thus, although a

plaintiff’s specific factual allegations may be consistent with a
constitutional claim, a court must assess whether there are other
“more likely explanations” for a defendant’s conduct.

Id. at

1951.
The court must construe a pro se complaint liberally,
accept all allegations of material fact as true, and construe
those facts in the light most favorable to the plaintiff.
Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).

Leave to

amend should be granted if it appears at all possible that the
plaintiff can correct the defects of his or her complaint.

Lopez

v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
II.

DISCUSSION

“To sustain an action under section 1983, a plaintiff
must show ‘(1) that the conduct complained of was committed by a
person acting under color of state law; and (2) that the conduct
deprived the plaintiff of a federal constitutional or statutory
right.’”

Hydrick v. Hunter, 500 F.3d 978, 987 (9th Cir. 2007)

(citation omitted); see also West v. Atkins, 487 U.S. 42, 48
(1988); 42 U.S.C. § 1983.
3

Austin claims that, on or about August 30, 2011, Momoa
gave the prison’s incoming mail to inmate Silva to distribute to
other inmates.

Austin does not allege that Silva opened his

personal or legal mail; he simply alleges that Momoa gave the
inmates’ mail to Silva to distribute.

Austin attaches an

informal grievance resolution to his complaint that shows that
prison policy is that inmates may not handle other inmates’ mail
and that Momoa was informed of this.

Austin seeks $1 million.

The court construes Austin’s claim as alleging a violation of the
First Amendment.2
A prisoner retains those First Amendment rights that
are “not inconsistent with his status as a prisoner or with the
legitimate penological objectives of the corrections system.”
Prison Legal News v. Cook, 238 F.3d 1145, 1149 (9th Cir. 2001)
(quoting Jones v. North Carolina Prisoners’ Labor Union, Inc.,
433 U.S. 119, 129 (1977)) (internal quotation marks omitted).
Prisoners therefore retain a First Amendment right to send and
receive mail.

Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995)

(citing Thornburgh v. Abbott, 490 U.S. 401, 407(1989)).
Austin generally alleges that the mail Silva delivered
contained legal and non-legal mail.

2

Prison officials may inspect

Austin raised similar claims against another ACO,
regarding an incident in 2010, in Austin v. Stevens, Civ. No.
1:11-cv-00690 SOM. That action was dismissed without leave to
amend for failure to state a claim on November 23, 2011.
4

nonlegal mail for contraband without violating a prisoner’s
constitutional rights.

It therefore follows that a prisoner has

no right to keep the envelopes of nonlegal mail private.

Given

that, there can be no question that nonlegal mail may be
delivered by one inmate to another in the manner Austin
describes.

See Smith v. Boyd, 945 F.2d 1041, 1043 (9th Cir.1991)

(upholding inspection of incoming mail); Gaines v. Lane, 790 F.2d
1299, 1304 (7th Cir. 1986) (upholding inspection of outgoing and
incoming mail).
“[L]egal mail may be opened in the presence of the
addressee and . . . prison officials can require both that the
letters be specially marked with the name and address of the
attorney and that the attorney communicate first with prison
officials.”

Sherman v. McDougall, 656 F.2d 527, 528 (9th Cir.

1981) (citing Wolff v. MacDonald, 418 U.S. 539, 575-77 (1974)).
Austin does not allege that his mail was opened, nor does he
identify the type of “legal” mail he is referring to.

“[M]ail

from the courts, as contrasted to mail from a prisoner’s lawyer,
is not legal mail.”
1996).

Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir.

Additionally, an isolated instance or an occasional

opening of legal mail outside of an inmate’s presence does not
rise to the level of a constitutional violation.
v. Koskey, 877 F.2d 1435, 1441 (9th Cir. 1989).

See Stevenson
In light of

this, Momoa’s direction to Silva on August 30, 2011, to deliver

5

the mail, legal or personal, to another inmate does not set forth
a constitutional violation.

As noted, Momoa has been informed

that he should not in the future give the mail to one inmate to
deliver to the others.

Violating a prison rule does not

necessarily violate the constitution or create a cause of action
under § 1983.

See Campbell v. Burt, 141 F.3d 927, 930 (9th Cir.

1998) (“As a general rule, a violation of state law does not lead
to liability under § 1983.”).
While allegations that mail delivery was delayed for an
inordinate amount of time are sufficient to state a claim for
violation of the First Amendment, see Antonelli v. Sheahan, 81
F.3d 1422, 1432 (7th Cir. 1996), isolated delays or some other
relatively short-term disruption in delivery of inmate mail is
not enough to support a First Amendment claim when the delay or
disruption is not content-based.

See Sizemore v. Williford, 829

F.2d 608, 610 (7th Cir. 1987); Bach v. Illinois, 504 F.2d 1100,
1102 (7th Cir. 1974) (an isolated incident of delay generally is
insufficient to raise a §

1983 claim).

Austin does not allege

that his mail was delivered late because of Momoa’s direction.
Austin fails to state a claim regarding the handling of
his mail.

This court cannot conceive of any additional facts

that would be sufficient to show that Momoa violated Austin’s
constitutional rights by directing Silva to deliver the incoming
mail to Austin on one occasion, rather than handing the mail to
6

Austin himself.

As amendment is futile, Austin’s Complaint and

action are DISMISSED with prejudice for failure to state a claim.
III.

CONCLUSION

IT IS HEREBY ORDERED that:
Austin’s Complaint and this action are DISMISSED for
failure to state a claim.

See 28 U.S.C. § 1915(e)(2)(b) &

1915A(b)(1).
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, December 1, 2011.

_____________________________
David Alan Ezra
United States District Judge

Austin v. Momoa, et al., Civ. No. 11-00707 DAE, Order Dismissing Complaint and Action;
psa/Screening/dmp/ 2011/Austin 11-707 DAE (dsm ftsc [mail handling])

7