Kelly v. Rolland
MEMORANDUM DECISION AND ORDER. NOW THEREFORE IT IS HEREBY ORDERED: Plaintiff may proceed on the First and Fourteenth Amendment claims under Section 1983 against Defendant. Plaintiffs Request for Service 3 is GRANTED. Defendant shall be allowed t o waive service of summons by executing, or having their counsel execute, the Waiver of Service of Summons as provided by Fed. R. Civ. P. 4(d) and returning it to the Court within 30 days. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
MICHAEL A. KELLY,
Case No. 1:16-cv-00149-CWD
MEMORANDUM DECISION AND
The Clerk of Court conditionally filed pro se Plaintiff Michael A. Kelly’s
complaint as a result of his in forma pauperis request. Pursuant to 28 U.S.C. § 1915, this
Court must review Kelly’s in forma pauperis complaint to determine whether it may be
summarily dismissed. Kelly, the only party appearing in this action, consented to the
jurisdiction of a United States Magistrate Judge. 1 See 28 U.S.C. § 636(c); Fed. R. Civ. P.
73. The Court now reviews Kelly’s complaint to determine whether it, or any of the
claims therein, should be summarily dismissed under 28 U.S.C. § 1915(e)(2). Having
See United States v. Real Property, 135 F.3d 1312, 1316 (9th Cir. 1998) (holding a magistrate judge had
jurisdiction to enter final judgment over defaulted person who was technically not a “party” to the
litigation); see also, Walters v. Astrue, 2008 WL 618933 (N.D. Cal. 2008) (dismissing complaint pursuant
to 28 U.S.C. § 1915(e)(2) where only plaintiff consented to magistrate judge, and defendants, who had
not been served, were not considered parties to the action).
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reviewed the record, and otherwise being fully informed, the Court enters the following
Plaintiff Michael A. Kelly filed a pro se complaint requesting in forma pauperis
status on February 26, 2016, in the United States District Court for the Eastern District of
Michigan. (Dkt. 1.) Kelly filed an amended complaint on March 1, 2016. (Dkt. 5.) On
March 9, 2016, the court granted Kelly’s in forma pauperis request, but ordered that
service of process be delayed while the court conducted an initial review pursuant to 28
U.S.C. § 1915(e)(2). (Dkt. 2, 8.) Also on March 9, the court issued a Report and
Recommendation that the case be transferred to the United States District Court for the
District of Idaho, the District where Defendant Katie Rolland resides. (Dkt. 9.) The case
was transferred on April 5, 2016, and assigned to the undersigned United States
Kelly’s amended complaint states that, on February 5, 2016, he mailed a
newspaper along with a typed letter to Kellie Drake, an inmate at the Gem County Jail.
On February 19, 2016, Kelly received the same mail at his P.O. Box in Bay City,
Michigan, returned from the Gem County Jail. On the envelope was a Return to Sender
stamp, below which was handwritten, “no advertisements ads.” Kelly asserts that this was
written by or at the direction of Defendant Katie Rolland, the Jail Commander at the Gem
County Jail in Emmett, Idaho, whom Kelly alleges is “the person in charge at this facility
that is tasked [with] the responsibility of determining what/which inmate mails get
delivered.” The amended complaint also appears to allege that Rolland acted per policy,
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stating: “if the jail has a policy prohibiting mail/magazines/newspapers, primarily of an
‘advertising nature’ I haven’t seen it and even if there were such a GEM CO. Jail Policy
that Policy would be in violation of the 1st Amend.”
Kelly alleges: (1) his First Amendment right was violated by Rolland’s refusal to
deliver the newspaper to Drake; (2) his First Amendment right was violated by Rolland’s
refusal to deliver the typed letter to Drake; and (3) his Fourteenth Amendment right to
due process was violated when he was not given means by which to appeal the decision
not to deliver and to return the mail he sent to Drake. Kelly seeks punitive damages
totaling $1,500.00, with $500.00 to be awarded for each violation.
Standard of Review
Once a complaint has been conditionally filed pursuant to 28 U.S.C. § 1915, the
Court may conduct an initial review of the complaint. See 28 U.S.C. § 1915(e)(2). The
Court must dismiss a complaint or any portion of it if it: (1) is frivolous or malicious; (2)
fails to state a claim upon which relief can be granted; or (3) seeks monetary relief from a
defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(i-iii).
Because Kelly is proceeding pro se, the complaint must be liberally construed, and
Kelly must be given the benefit of any doubt. See Resnick v. Hayes, 213 F.3d 443, 447
(9th Cir. 2000). Additionally, if the complaint can be saved by amendment, Kelly should
be notified of the deficiencies and provided an opportunity to amend. See Jackson v.
Carey, 353 F.3d 750, 758 (9th Cir. 2003). A dismissal without leave to amend is
MEMORANDUM DECISION AND ORDER - 3
improper unless it is beyond doubt that the complaint “could not be saved by any
amendment.” Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th Cir. 2009).
Failure to State a Claim
A complaint fails to state a claim for relief under Rule 8 of the Federal Rules of
Civil Procedure if the factual assertions in the complaint, taken as true, are insufficient
for the reviewing court plausibly “to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. In other words, although Rule 8 “does not require detailed
factual allegations, … it demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Id. (internal quotation marks omitted). If the facts pleaded are
“merely consistent with a defendant’s liability,” the complaint has not state a claim for
relief that is plausible on its face. Id. (internal quotation marks omitted).
Although not stated in his amended complaint, Kelly’s constitutional claims are
brought under 42 U.S.C. § 1983, the civil rights statute. To state a valid claim under
Section 1983, a plaintiff must allege a violation of rights protected by the Constitution or
created by federal statute proximately caused by the conduct of a person acting under
color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991).
Section 1983 claims can be asserted against an individual personally or in their
official capacity. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). An individual is
sued in his or her official capacity when suit is brought for official actions attributable to
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enforcement of a policy or custom, or for a decision as a final policy maker. See id; see
also Monell v. Dept. of Soc. Serv. of New York, 436 U.S. 658, 694 (1978). Kelly’s
amended complaint alleges Rolland is “the person in charge at this facility that is tasked
[with] the responsibility of determining what/which inmate mails get delivered.” The
complaint alleges also that “Rolland, or someone at her direction,” was responsible for
returning the envelope, causing the alleged violation of Kelly’s constitutional rights.
Because Kelly is alleging that his rights were violated by Rolland either through
enforcement of a policy or as a result of her decision as a policy maker, the Court
interprets the amended complaint as bringing suit against Rolland in her official capacity
as Jail Commander.
First Amendment Freedom of Speech and Association Violation Claims
Kelly alleges his First Amendment right to free speech and association was
violated when Rolland did not deliver Kelly’s mail to inmate Drake and instead returned
the mail to Kelly. Incarceration does not remove with it all the rights guaranteed under
the Constitution. “Prison walls do not form a barrier separating prison inmates from the
protections of the Constitution,” Turner v. Safley, 482 U.S. 78, 84 (1987), “nor do they
bar free citizens from exercising their own constitutional rights by reaching out to those
on the ‘inside.’” Thornburgh v. Abbott, 490 U.S. 401, 407 (1989). Regulation of inmate
mail implicates the First Amendment rights of both inmates and their outside
correspondents. “This does not depend on whether the nonprisoner correspondent is the
author or intended recipient of a particular letter.” Martinez, 416 U.S. at 408. “[N]onprisoners do indeed have a First Amendment right to correspond with prisoners.” Rowe v.
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Shake, 196 F.3d 778, 783 (7th Cir. 1999); see also Thornburgh, 490 U.S. at 407;
Procunier v. Martinez, 416 U.S. 396, 408-09 (1974), overruled on other grounds by
Thornburgh v. Abbott, 490 U.S. 401 (1989) 2; Prison Legal News v. Lehman, 397 F.3d
692, 701 (9th Cir. 2005) (“We can perceive no principled basis for distinguishing
publications specifically ordered by a prison inmate from letters written to that inmate for
purposes of first amendment protection.” (quoting Miniken v. Walter, 978 F. Supp. 1356,
1362 (E.D. Wash. 1997) (internal quotations omitted)).
However, these rights must be weighed with “due regard for the ‘inordinately
difficult undertaking’ that is modern prison administration” by weighing the need for
order and security against the rights of inmates and non-inmates who seek to
communicate with each other. Thornburgh, 490 U.S. at 407 (quoting Turner, 482 U.S. at
85). Because of the security risks associated with materials entering a jail or prison,
officials are given greater discretion with regard to regulation of incoming mail than with
outgoing mail. Id. at 413.
“When a prison regulation impinges on inmates’ constitutional rights, the
regulation is valid if it is reasonably related to legitimate penological interests.” Turner,
482 U.S. at 89. Four factors are considered when making this determination:
(1) Whether the regulation is rationally related to a legitimate and neutral
governmental objective; (2) whether there are alternative avenues that
remain open to the inmates to exercise the right; (3) the impact that
accommodating the asserted right will have on other guards and prisoners,
Procunier v. Martinez, 416 U.S. 396 (1974), provided a two-part test for assessing the validity of a
prison regulation that implicated constitutional rights. Thornburgh v. Abbott, 490 U.S. 401 (1989),
adopted the four-part test set forth in Turner v. Safley, 482 U.S. 78 (1987), overruling Martinez in that
regard. However, Martinez remains good law with regard to its discussion of First and Fourteenth
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and on the allocation of prison resources; and (4) whether the existence of
easy and obvious alternatives indicates that the regulation is an exaggerated
response by prison officials.
Prison Legal News v. Cook, 238 F.3d 1145,1149 (9th Cir. 2001) (citing Turner, 482 U.S.
It appears that Kelly’s amended complaint may state a cognizable First
Amendment claim based upon his right to correspond with inmate Drake. However, the
complaint merely suggests that a policy exists but provides no details as to what that
policy may be. The Court is therefore unable to determine, at this time, whether a
legitimate penological interest exists. The Court finds Kelly’s amended complaint,
liberally construed, states plausible First Amendment violation claims against Rolland
upon which relief could be granted if the allegations are proven at trial. Although the
Court will allow Kelly to proceed on these claims, the Court does not suggest that Kelly’s
claims will be successful.
Fourteenth Amendment Due Process Violation Claim
Fourteenth Amendment guarantees apply only when a constitutionally protected
liberty or property interest is at stake. Board of Regents v. Roth, 408 U.S. 564, 569
(1972). The First Amendment interest of inmates and non-inmates to communicate by
mail “is plainly a ‘liberty’ interest within the meaning of the Fourteenth Amendment
even though qualified of necessity by the circumstance of imprisonment. As such, it is
protected from arbitrary governmental invasion.” Martinez, 416 U.S. at 418. Individuals
must be afforded the same procedural protections given to the inmates to whom their mail
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is addressed. See Prison Legal News v. Lehman, 272 F. Supp. 2d 1151, 1159 (W.D. Wash
2003), aff’d by 397 F.3d 692 (9th Cir. 2005).
In Martinez, the Supreme Court affirmed a ruling that established a baseline for
due process procedures required for non-delivery of inmate mail: “that an inmate be
notified of the rejection of a letter written by or addressed to him, that the author of that
letter be given a reasonable opportunity to protest that decision, and that complaints be
referred to a prison official other than the person who originally disapproved the
correspondence.” Martinez, 416 U.S. at 419. “When a prison rejects and returns or
withholds opened mail to the sender because of the content of the mail, the prisoner’s and
the sender’s First Amendment rights are implicated and the prisoner is therefore entitled
to the due process procedures set out in Martinez.” Sikorski, 631 F. Supp. 2d 1327, 1346
(D. Nev. 2009). See also Krug v. Lutz, 329 F.2d 692, 699 (9th Cir. 2003) (“withholding
delivery of inmate mail must be accompanied by the minimum procedural safeguards
established in Martinez.”). However, Martinez does not require notice and opportunity to
appeal prior to mail being rejected or returned. Sikorski v. Whorton, 631 F. Supp. 2d at
1350, n. 17.
Kelly’s amended complaint alleges that the mail he sent to Drake was returned to
him with “no advertisements ads” written on the envelope. He alleges also he was not
given notice prior to the mail being rejected and returned, nor was he afforded an
opportunity to protest the decision. While notice is not required prior to returning the
mail, it appears Kelly states a claim based upon an alleged failure to afford him an
opportunity to protest the decision to return the mail based upon content. The Court
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therefore finds Kelly’s amended complaint, liberally construed, appears to state a
plausible Fourteenth Amendment due process violation claim against Rolland upon
which relief could be granted if the allegations are proven at trial. Although the Court
will allow Kelly to proceed on this claim, the Court does not suggest that Kelly’s claim
will be successful.
Fed. R. Civ. P. 8(a)(3) requires that a plaintiff’s complaint include a demand for
relief sought. Kelly has requested relief in the total amount of $1,500.00 to be “awarded
punitively”. However, municipalities and municipal officials sued in their official
capacity have immunity from punitive damages. City of Newport v. Fact Concerts, Inc.,
453 U.S. 247, 268 (1981). As a municipal official sued in her official capacity, Rolland is
immune from punitive damages.
Kelly may be entitled to compensatory damages, however. But, compensatory
damages must be based on proof of actual injuries suffered. “An abstract value of a
constitutional right may not form the basis for § 1983 damages.” Memphis School
District v. Stachura, 477 U.S. 299, 308 (1986). “[N]ominal damages, and not damages
based on some undefinable ‘value’ of infringed rights, are the appropriate means of
‘vindicating’ rights whose deprivation has not caused an actual, provable injury.” Id. at
n.11. While nominal damages are available for a § 1983 claim, nominal damages are
limited to an amount “not to exceed one dollar.” Carey v. Piphus, 435 U.S. 247, 267
MEMORANDUM DECISION AND ORDER - 9
Although the requested relief may be liberally construed as a request for
compensatory damages, Kelly has not stated any facts to indicate that an actual, provable
injury occurred to support such an award. In the absence of facts indicating an actual
injury, Kelly nonetheless may seek nominal damages. Accordingly, the Court liberally
construes the amended complaint as stating a sufficient claim for damages upon which to
proceed at this time.
Plaintiff may proceed on his First and Fourteenth Amendment claims under
Section 1983. The Court’s Order does not guarantee that any of Kelly’s claims will be
successful; it merely finds that his claims are colorable, meaning those claims will not be
summarily dismissed at this stage. This Order is not intended to be a final or
comprehensive analysis of Kelly’s claims, but it is a determination that Kelly’s claims are
plausible and should proceed to the next stage of litigation. It is Kelly’s burden to
thoroughly set forth the legal and factual basis for each of his claims so that Rolland can
properly defend against them.
Rolland may file a motion for dismissal on any basis other than failure to state a
claim. 3 An early motion for summary judgment – rather than a motion to dismiss – is
often a more appropriate vehicle for asserting defenses such as entitlement to qualified
immunity. In such instances, the parties may be required to exchange limited information
and documents directly relevant to the defense at issue.
The standards for a motion to dismiss for failure to state a claim under Rule 12(b)(6) are the same
standards that the Court has used to screen the Amended Complaint under § 1915(e)(2).
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NOW THEREFORE IT IS HEREBY ORDERED:
1) Plaintiff may proceed on the First and Fourteenth Amendment claims under
Section 1983 against Defendant.
2) Plaintiff’s Request for Service (Dkt. 3) is GRANTED as set forth in this
3) Defendant shall be allowed to waive service of summons by executing, or
having their counsel execute, the Waiver of Service of Summons as
provided by Fed. R. Civ. P. 4(d) and returning it to the Court within 30
days. If Defendant chooses to return the Waiver of Service of Summons,
the answer or pre-answer motion shall be due in accordance with Rule
12(a)(1)(A)(ii). Accordingly, the Clerk of Court shall forward a copy of the
Amended Complaint (Dkt. 5), a copy of this order, and a Waiver of Service
of Summons to Richard Linville, Gem County Prosecuting Attorney,
306 E. Main St. Box 671, Emmett, Idaho 83617.
4) Should the Gem County Prosecutor determine that Defendant is not, in fact,
an employee or former employee of Gem County, or that the Gem County
Prosecutor will not be appearing for Defendant, he should file a notice
within CM/ECF system, with a copy mailed to Plaintiff, indicating that
service will not be waived.
5) If Plaintiff receives a notice indicating that service will not be waived,
Plaintiff shall have an additional 90 days from the date of such notice to file
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a notice of physical service addresses of Defendant, or the claim against
Defendant may be dismissed without prejudice without further notice.
6) The parties shall not engage in any discovery until an answer has been
filed. Within 30 days after an answer has been filed, the parties shall
provide each other with the following voluntary disclosures: all relevant
information pertaining to the claims and defenses in this case, including the
names of individuals likely to have discoverable information, along with
the subject of information, such as any relevant mail policy, as well as any
relevant documents in their possession, in a redacted form if necessary for
security or privilege purposes; and, if necessary, they shall provide a
security/privilege log sufficiently describing any undisclosed relevant
documents which are alleged to be subject to nondisclosure. Any party may
request that the Court conduct an in camera review of withheld documents
7) If, instead of filing an answer, Defendant files a motion to dismiss under
Federal Rule of Civil Procedure 12(b) or a motion for summary judgment
under Rule 56 that addresses preliminary procedural issues rather than the
merits, then disclosures and discovery shall be automatically stayed with
the exception that Defendant shall submit with any exhaustion-ofadministrative-remedies motion a copy of all grievance-related forms and
correspondence, including a copy of handwritten forms submitted by
Plaintiff that either fall within the relevant time period or that otherwise
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relate to the subject matter of a claim. Submission of a motion for summary
judgment addressing procedural issues does not foreclose any party from
later filing a motion for summary judgment on the merits.
8) Each party shall ensure that all documents filed with the Court are
simultaneously served upon the opposing party (through counsel if the
party has counsel) by first-class mail or via the CM/ECF system, pursuant
to Federal Rule of Civil Procedure 5. Each party shall sign and attach a
proper mailing certificate to each document filed with the court, showing
the manner of service, date of service, address of service, and name of
person upon whom service was made.
9) The Court will not consider ex parte requests unless a motion may be heard
ex parte according to the rules and the motion in clearly identified as
requesting an ex parte order, pursuant to Local Rules of Civil Practice
before the United States District Court for the District of Idaho 7.2. (“Ex
parte” means that a party has provided a document to the court, but that the
party did not provide a copy of the document to the other party to the
10) All Court filings requesting relief of requesting that the Court make a ruling
or take an action of any kind must be in the form of a pleading or motion,
with an appropriate caption designating the name of the pleading or motion,
served on all parties to the litigation, pursuant to Federal Rule of Civil
Procedure 7, 10 and 11, and Local Rules of Civil Practice before the United
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States District Court for the District of Idaho 5.1 and 7.1. The Court will
not consider requests made in the form of letters.
11) Discovery shall not be filed with the Clerk of Court, but shall be
exchanged between parties, only, as provided for in the Federal Rules of
Civil Procedure. Motions to compel discovery must not be filed unless the
parties have first attempted to work out their disagreements between
12) No party may have more than three pending motions before the Court at
one time, and no party may file a motion on a particular subject matter if
that party has another motion on the same subject matter then pending
before the Court. Motions submitted in violation of this Order may be
stricken, summarily denied, or returned to the moving party unfiled.
13) Plaintiff must notify the Court immediately if Plaintiff’s address changes.
Failure to do so may be cause for dismissal of this case without further
June 14, 2016
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