Patton v. Thomas et al

Filing 18

ORDER. All of plaintiff's claims are DISMISSED for failure to state a claim except that pertaining to the opening of his outgoing legal mail by defendant Kallunki. Plaintiff may file an amended complaint within 30 days curing the deficien cies pertaining to any access to courts claims he might wish to raise. Plaintiff's second Motion for Appointment of Counsel (#15) is DENIED for the reasons identified in the court's Order (#7) dated January 6, 2011. Signed on 03/02/2011 by Judge Michael W. Mosman. (gw)

Patton v. Thomas et al

Doc. 1

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
ANDREW D. PATTON, Plaintiff,
v.

CV. 10-1333-MO
ORDER TO DISMISS

J.E. THOMAS, et al., Defendants. MOSMAN, District Judge. Plaintiff, an inmate at FCI-Sheridan, brings this civil rights action pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). In a separate order, the court has granted However, for the

plaintiff leave to proceed in forma pauperis.

reasons set forth below, most of plaintiff's claims are subject to
sua sponte dismissal. See 28 U.S.C.
§

1915(e)(2).

BACKGROUND Plaintiff Heiberthal alleges that on October physical 13, 2009, and defendant verbally

threatened

him with

violence

1 - ORDER TO DISMISS

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abused him in violation of the Eighth Amendment.

He claims to have

reported the incident to defendant Van Cleve, who disregarded the complaint. Plaintiff also alleges that defendant Kallunki opened and read his outgoing legal mail in violation of his First and Fourteenth Amendment rights. According to plaintiff, defendant Burkholz

promised on October 4, 2010 to return his legal mail but had not done so as of the mailing of the Amended Complaint in this case on February 16, 2010. He also asserts generally that he has been

repeatedly denied postage for his legal mail, though he identifies no responsible party. monetary relief.
STANDARDS

Plaintiff seeks declaratory, injunctive, and

Pursuant to 28 U.S.C.

§

1915A(a),

the court is required to

screen prisoner complaints seeking relief against a governmental entity, officer, or employee and must dismiss a complaint if the action is frivolous, which relief may be malicious, granted. or fails 28 U.S.C. to state a
§§

claim upon and

1915 (e) (2) (B)

. 1915A (b) .

In order to state a claim, plaintiff's complaint must when accepted as true, defendants violated 129 S.Ct. 554,

contain sufficient factual matter which, gives rise to a plausible inference

that

plaintiff's constitutional rights. 1937, 1949

Ashcroft v.

Iqbal,

(2009); Bell Atlantic Corp. v.

Twombly,

550 U.S.

556-57 (2007).

"Threadbare recitals of the elements of a cause of

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action, supported by mere conclusory statements, do not suffice."
Iqbal, 129 S.Ct. at 1949.

Dismissal for failure to state a claim is proper if it appears beyond doubt that plaintiff can prove no set of facts in support of his claims that would entitle him to relief.
Ortez v. Washington

County, 88 F.3d 804, 806 (9th Cir. 1996); Cervantes v. City of San Diego,

5 F. 3d 1273, 1274

(9th Cir.

1993).

Because plaintiff is

proceeding pro se, the court construes his pleadings liberally and affords him the benefit of any doubt. 89, 94 (2007); Ortez, 88 F.3d at 806.
DISCUSSION Erickson v. Pardus, 551

u.s.

A plaintiff wishing to bring a cause of action pursuant to 42 U.S.C. factors:
§

1983

must

demonstrate

compliance

with

the

following

(1) a violation of rights protected by the Constitution or

created by federal statute (2) proximately caused (3) by conduct of a person (4) acting under color of state law. 947 F.2d 1418, 1420 (9th Cir. 1991).
Crumpton v. Gates,
§

"Actions under

1983 and

those under Bivens are identical save for the replacement of a state actor under § 1983 by a federal actor under Bivens."
Strum v. Lawn, Van

940 F.2d 406, 409 (9th Cir. 1991). by a prison official does not amount to a

Verbal

abuse

constitutional violation. 139 (9th Cir. 1987).

Oltarzerski v. Ruggiero, 830 F.2d 136,

Even a threat of future bodily harm to a
§

prisoner may not provide a basis for a cognizable 42 U.S.C.

1983

3 - ORDER TO DISMISS

claim.

Gaut

v.

Sunn,

810

F.2d

923,

925

(9th

Cir.

1987).

Accordingly,

plaintiff fails to state an Eighth Amendment claim

arising out of the verbal abuse he claims to have suffered. With respect to plaintiff's claim that his outgoing legal mail was opened and read by defendant is Kallunki sufficient without to plaintiff's a valid

permission,

this

allegation

state

constitutional claim for pleading purposes.

See Ex Parte Hull, 312

u.s.

546, 549, 61 S.Ct. 640, 85 L.Ed. 1034 (1941)

(prison officials

may not review outgoing legal mail for legal sufficiency). Plaintiff also faults defendant Burkholz for not returning his legal mail to him as promised, apparently in violation of his right to due process based upon the deprivation of personal property. Where an inmate alleges the deprivation of a property interest caused by the unauthorized negligent or intentional action of a prison official, the prisoner cannot state a constitutional claim where the state provides an adequate post-deprivation remedy.
Zinermon v. Burch, 494 See

u.s.

113, 129-131 (1990); Hudson v. Palmer,

468

u.s.

517, 533 (1984); Barnett v. Centoni, 31 F.3d 813, 816 (9th (per curiam). Amendment Due 481 This rule applies to both the Fifth and Process Clauses. 1991).
Raditch

Cir. 1994) Fourteenth
States,

v.

United

929 F.2d 478,

(9th Cir.

Oregon provides an

adequate post-deprivation remeqy in the form of the Oregon Tort Claims Act. O.R.S. 30.260 et seq. As a result, plaintiff fails to

state a claim upon which relief may be granted.

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Even

if plaintiff had characterized this

as

an access

to

courts claim, alleged that

he would fail to state a claim because he has not the topic of the nor legal has mail was one that is of

consti tutionally protected, prejudice.

he made

any allegation

See Lewis v. Casey,

518 U.S. 343, 351-355 (1996).

Plaintiff's allegation that he has been denied postage neither meets the Iqbal pleading standard, nor identifies any federal actor responsible addi tion, for any statutory or constitutional violation. right of access to the courts In

although the

includes

postage stamps at Government expense to mail legal documents, King
v. Atiyeh,

814 F.2d 565, 569

(9th Cir. 1987), plaintiff makes no

allegation that the denial of postage related to a legal mailing. Even it he did, plaintiff: (1) makes no allegation that his right (2) fails to he

of access to the courts was violated as a result; identify what constitutionally-protected subj ect (3)

matter

addressed in the document to be mailed; and

does not allege
See Lewis, supra.

that he was prejudiced by the denial of postage. As a result, plaintiff fails to state a claim.
CONCLUSION

Based on the foregoing, IT IS ,ORDERED that all of plaintiff's claims are DISMISSED for failure to state a claim except that

pertaining to the opening of his outgoing legal mail by defendant Kallunki. Plaintiff may file an amended complaint within 30 days

curing the deficiencies pertaining to any access to courts claims

5 - ORDER TO DISMISS

he might wish to raise.

If plaintiff elects not to file an amended

complaint with the court, he must nevertheless advise the court in writing that he wishes to proceed with his case against defendant Kallunki. Failure to do so will result in the dismissal of this

case without prejudice to his claim against Kallunki. Plaintiff's second Motion for Appointment of Counsel (#15) is DENIED for the reasons identified in the court's Order (#7) dated January 6, 2011. IT IS SO ORDERED. DATED this
~

~

day of

~blaary,

2011.

Michael W. osman United States District Judge

6 - ORDER TO DISMISS