(PC) Sherman v. Lizarraga

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 RANDY GLENN SHERMAN, No. 2: 19-cv-0569 WBS KJN P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 JOE LIZARRAGA, et al., 15 Defendants. [16] 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983 . Pending before the court is plaintiff’s second amended complaint. (ECF 19 No. 16.) For the reasons stated herein, the undersigned recommends that this action be dismissed. 20 In the section of the complaint form for identifying defendants, plaintiff lists the following 21 defendants: Joe Lizarraga, A. Krouse, J. Lyman, C. Cassidy and C. Lamb. (Id. at 1-2.) 22 However, in the discussion of his three claims, plaintiff identifies additional defendants. The 23 undersigned herein discusses each of plaintiff’s claims and the additional defendants. 24 Claim One 25 In claim one, plaintiff alleges violation of his right to due process and equal protection. 26 (Id. at 3.) Plaintiff alleges that he attempted to obtain his federal rap sheet, criminal arrest history 27 and Department of Defense service records in order to prepare for an initial parole consultation 28 hearing with Nina Starr on November 4, 2018. (Id.) Plaintiff alleges that he also required these 1 documents in order to receive service related disability pension compensation. (Id.) Plaintiff 2 alleges that, “The M.C.S.P. [Mule Creek State Prison] litigation office and law library is seriously 3 inadequate, so M.C.S.P. Supervisor A. Krouse is named and is evidence through exhibits.” (Id.) 4 The undersigned does not understand what plaintiff means by parole consultation hearing. 5 In the second amended complaint, plaintiff alleges that he was entitled to parole consideration as 6 a youthful offender because he committed his controlling offense before he was 26 years old. (Id. 7 at 4.) It appears that the parole consultation hearing plaintiff refers to may be a hearing pursuant 8 to People v. Franklin, 63 Cal.4th 261 (2016), under which a prisoner may make a record of 9 information relevant to his eventual youthful offender hearing. 10 If plaintiff is alleging that he was denied access to documents he wanted to present at a 11 parole suitability hearing, he may be alleging a violation of his right to present his case for parole 12 at his suitability hearing. See Greenholtz v. Inmates v. Neb. Penal & Corr. Complex, 442 U.S. 1 13 (1979). If plaintiff is alleging that he was denied access to documents he wanted to present at a 14 Franklin hearing, the extent of plaintiff’s due process rights at a Franklin hearing, if any, are not 15 clear.1 In any event, whether plaintiff is alleging that he was denied access to documents he 16 wanted to present in support of parole at a parole suitability hearing or at a Franklin hearing, 17 plaintiff has not linked defendant Krouse to the alleged deprivation. 18 The Civil Rights Act under which this action was filed provides as follows: 19 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 20 of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, 21 or other proper proceeding for redress. [22] 42 U.S.C. § 1983 . The statute requires that there be an actual connection or link between the 23 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 24 Monell v. Department of Social Servs., 436 U.S. 658 (1978) (“Congress did not intend § 1983 25 liability to attach where . . . causation [is] absent.”); Rizzo v. Goode, 423 U.S. 362 (1976) (no [26] 1 Whether plaintiff is alleging that he was denied his right to present his case at a parole 27 suitability hearing or a Franklin hearing, either claim is properly brought in this civil rights action because a finding in plaintiff’s favor would not necessarily lead to plaintiff’s immediate release or 28 earlier release from confinement. See Nettles v. Grounds, 830 F.3d 922, 935 (9th Cir. 2016). 1 affirmative link between the incidents of police misconduct and the adoption of any plan or policy 2 demonstrating their authorization or approval of such misconduct). “A person ‘subjects’ another 3 to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative 4 act, participates in another’s affirmative acts or omits to perform an act which he is legally 5 required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 6 F.2d 740, 743 (9th Cir. 1978). 7 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 8 their employees under a theory of respondeat superior and, therefore, when a named defendant 9 holds a supervisorial position, the causal link between him and the claimed constitutional 10 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979) 11 (no liability where there is no allegation of personal participation); Mosher v. Saalfeld, 589 F.2d 12 438, 441 (9th Cir. 1978) (no liability where there is no evidence of personal participation), cert. 13 denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of 14 official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 15 F.2d 266, 268 (9th Cir. 1982) (complaint devoid of specific factual allegations of personal 16 participation is insufficient). 17 While plaintiff suggests that the inadequacy of the MCSP law library contributed to his 18 inability to obtain documents related to parole proceedings and his application for veterans’ 19 benefits, plaintiff does not describe any specific actions by defendant Krouse which caused him 20 not to obtain these documents. For this reason, the undersigned finds that plaintiff has not 21 adequately linked defendant Krouse to the alleged deprivations. The undersigned also reviewed 22 the exhibits attached to plaintiff’s second amended complaint. The undersigned cannot locate any 23 exhibits supporting plaintiff’s claim that defendant Krouse interfered with plaintiff’s attempts to 24 obtain the documents discussed above.2 25 2 The undersigned observes that one of the exhibits attached to the second amended complaint undermines plaintiff’s claim that prison officials thwarted his attempt to obtain documents related [26] to his attempt to obtain veterans’ benefits. In grievance MCSP 19-3435, submitted by plaintiff on 27 August 1, 2019, plaintiff complained that prison officials were opening his mail, outside of his presence, related to his attempt to obtain veterans’ disability benefits. (ECF No. 16 at 25.) 28 Plaintiff requested that his mail from the Department of Defense, Department of Homeland 1 Accordingly, for the reasons discussed above, the undersigned recommends that claim 2 one be dismissed. 3 Claim Two 4 In claim two, plaintiff alleges violations of the Eighth Amendment and his right to due 5 process and equal protection. (ECF No. 16 at 4.) Plaintiff alleges that defendants Mendoza and 6 Mailroom Supervisor Camp were derelict in their duties. (Id.) Plaintiff alleges that these 7 defendants opened his mail from the O.G.I.S.3 on July 23, 2019, even though it was clearly 8 marked “legal mail.” (Id.) Plaintiff cites grievance 19-3435 attached to the second amended 9 complaint in support of this claim. (Id.) Plaintiff states that his grievance was then improperly 10 screened out/rejected. (Id.) As his injury, plaintiff alleges that, “[d]ue to the parties involved this 11 plaintiff was and still is hamstrung in preparing for and attempting to comply with any and all 12 guidelines for an upcoming BPH (Board of Parole Hearing) initial consultation hearing…” (Id.) 13 In grievance 19-3435, plaintiff requested that prison officials treat as confidential his mail 14 from the Department of Defense, Department of Homeland Security, Judge Advocate General, 15 Naval Criminal Investigative Services, the Department of Veteran’s Affairs and Cal-Vet. (Id. at 16 25.) Plaintiff also appeared to claim that prison officials had opened legal mail addressed to him 17 from the National Personnel Records Center and Office of Government Information Services 18 outside of his presence. (Id.) 19 The undersigned construes claim two as alleging that the opening of plaintiff’s mail from 20 the agencies listed above, outside of plaintiff’s presence, violated plaintiff’s First Amendment 21 right to receive legal mail. Prison inmates retain a First Amendment right to send and receive [22] 23 Security, Judge Advocate General, Naval Criminal Investigative Services, Departments of Veterans’ Affairs and Cal-Vet be treated as confidential. (Id.) Plaintiff also wrote in the 24 grievance that the Department of Defense had been attempting to provide him with assistance in obtaining his disability benefits through Cal-Vet. (Id.) [25] Grievance MCSP 19-3435 suggests that plaintiff was able to communicate with several agencies regarding his attempt to obtain veterans’ disability benefits. In this grievance, plaintiff [26] did not complain that prison officials prevented him from obtaining documents from, or otherwise 27 communicating with, the agencies identified in this grievance. 28 3 It appears that by O.G.I.S. plaintiff refers to the Office of Government Information Services. 1 mail despite the “inordinately difficult undertaking” to exercise and protect that right within a 2 prison setting. Thornburgh v. Abbott, 490 U.S. 401, 407 (1989) (quoting Turner v. Safley, 482 3 U.S. 78 , 85 (1987)). As a general rule, a prison may adopt regulations that impinge on a 4 prisoner’s constitutional rights if the regulations are reasonably related to legitimate penological 5 interests. Turner, 482 U.S. at 89. 6 Under federal law, “legal mail” is narrowly defined as confidential correspondence 7 between a prisoner and his attorney and is protected by the First Amendment. See Nordstrom v. 8 Ryan, 762 F.3d 903, 909 (9th Cir. 2014) (“Nordstrom I”). The Ninth Circuit “recognize[s] that 9 prisoners have a protected First Amendment interest in having properly marked legal mail opened 10 only in their presence.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1211 (9th Cir. 2017). In 11 criminal cases, such correspondence is also protected by the Sixth Amendment. See 12 Mangiaracina v. Penzone, 849 F.3d 1191, 1196 (9th Cir. 2017) and cases cited therein. “[P]rison 13 officials may open, but not read, incoming legal mail in the presence of the inmate.” Nordstrom 14 v. Ryan, 856 F.3d 1265, 1272 (9th Cir. 2017) (“Nordstrom II”) (citing Wolff v. McDonnell, 418 15 U.S. 539 , 577 (1974). “[T]he practice of requiring an inmate to be present when his legal mail is 16 opened is a measure designed to prevent officials from reading the mail in the first place.” 17 Nordstrom I, 762 F.3d at 910 (citing Wolff at 577 ). 18 “A prison may set a higher standard than that required by the First Amendment, but doing 19 so does not elevate a violation of a prison policy into a constitutional claim.” Blaisdell v. Dep’t 20 of Pub. Safety, 2014 WL 5581032 , at *6 (D. Haw. Oct. 31, 2014) (citing Mann v. Adams, 855 21 F.2d 639, 640 (9th Cir 1988)). Federal law requires only that incoming legal mail from a 22 prisoner’s attorney, clearly marked as such be opened in the prisoner’s presence. 23 None of the alleged legal mail cited by plaintiff in the second amended complaint and 24 grievance 19-3435 came from an attorney representing plaintiff. Therefore, prison officials did 25 not violate the First Amendment by allegedly opening this mail outside of plaintiff’s presence. 26 For this reason, plaintiff’s allegations in claim two do not state potentially cognizable First 27 Amendment claims. Accordingly, claim two should be dismissed. 28 //// 1 Claim Three 2 In claim three, plaintiff alleges violations of the Eighth Amendment and his rights to due 3 process and equal protection. (ECF No. 16 at 5.) Plaintiff alleges that law librarian technician L. 4 Curran’s “machinations” continued on September 24, 2019, during another modified lockdown. 5 (Id.) Plaintiff alleges that he (plaintiff) waited to be called to the law library for priority legal user 6 (“PLU”) status as he had during the five previous lockdowns on August 20-23 and August 27 and 7 August 28. (Id.) Plaintiff alleges that he had a court deadline on October 13, 2019. (Id.) 8 Plaintiff alleges that on October 13, 2019, L. Curren told the floor officer that plaintiff had 9 refused his PLU appointment. (Id.) Plaintiff alleges that his inability to attend the law library 10 denied him access to the courts and an ability to prepare for his upcoming Board of Parole 11 Hearings consultation hearing. (Id.) 12 The undersigned construes claim three to allege a violation of plaintiff’s right to access 13 the courts. Prisoners have a constitutional right of access to the courts. See Lewis v. Casey, 518 14 U.S. 343, 346 (1996). To establish a violation of the right of access to the courts, a prisoner must 15 allege facts sufficient to show that: (1) a nonfrivolous legal attack on his conviction, sentence, or 16 conditions of confinement has been frustrated or impeded, and (2) he has suffered an actual injury 17 as a result. See Lewis, 518 U.S. at 353-55; Christopher v. Harbury, 536 U.S. 403, 415 (2002) (to 18 state an access to courts violation, plaintiff must describe the non-frivolous nature of the 19 “underlying cause of action, whether anticipated or lost”). The prisoner must demonstrate that he 20 has suffered or will imminently suffer actual injury. Lewis, 518 U.S. at 348. 21 Plaintiff does not allege that a nonfrivolous legal attack on his conviction, sentence or 22 conditions of confinement was frustrated or impeded as a result of his alleged inability to obtain 23 law library access on the dates alleged. Plaintiff does not identify any specific case filed in court 24 related to his conviction or concerning conditions of confinement that was injured as a result of 25 inadequate law library access. The right to access the courts does not extend to parole 26 consultation/suitability hearings. Even if it did, plaintiff does not specifically allege how his 27 ability to represent himself at the parole consultation/suitability hearing was impacted by his 28 alleged inadequate law library access. 1 For the reasons discussed above, the undersigned finds that plaintiff has not stated a 2 potentially cognizable claim for denial of the right to access the courts. Accordingly, claim three 3 should be dismissed. 4 Defendants Lizarraga, Lyman, Cassidy and Lamb 5 The second amended complaint contains no allegations against defendants Lizarraga, 6 Lyman, Cassidy and Lamb. Because plaintiff has failed to link these defendants to the alleged 7 deprivations, the undersigned recommends that these defendants be dismissed. 8 Conclusion 9 Because plaintiff has not stated potentially cognizable claims, despite having been twice 10 previously granted leave to amend, the undersigned recommends that this action be dismissed. It 11 does not appear that plaintiff can cure the pleading defects discussed above.4 12 On October 11, 2019, plaintiff filed a motion for an extension of time to file further 13 briefing in support of the second amended complaint. (ECF No. 17.) This motion is denied as 14 unnecessary. 15 Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for an extension of time 16 to file further briefing (ECF No. 17) is denied; and 17 IT IS HEREBY RECOMMENDED that this action be dismissed. 18 These findings and recommendations are submitted to the United States District Judge 19 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(l). Within fourteen days 20 after being served with these findings and recommendations, plaintiff may file written objections 21 with the court and serve a copy on all parties. Such a document should be captioned 22 “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that [23] 24 4 The undersigned observes that attached to the second amended complaint as exhibits are grievances filed by plaintiff related to prison officials’ refusal to allow him to receive a magazine [25] containing photographs of partially nude women. (See ECF No. 16 at 9.) The second amended complaint contains no claims regarding this matter. Moreover, neither the original or first [26] amended complaints contained claims regarding this matter. Plaintiff is not entitled to change the 27 nature of his suit by adding new, unrelated claims in an amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Accordingly, the undersigned will not further address this 28 matter. 1 | failure to file objections within the specified time may waive the right to appeal the District 2 | Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 | Dated: February 13, 2020 ‘ Frese Arn 5 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 6 | Sher569.56