Devlin v. Olson

• Court: District Court, W.D. Washington
• Decided: June 16, 2020
• Docket: 3:20-cv-05029
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 SHAWN DEE DEVLIN, Case No. C20-5029 BHS-TLF 7 Plaintiff, v. ORDER TO SHOW CAUSE 8 B OLSON, 9 Defendants. 10

11 This matter comes before the Court on plaintiff’s filling of an application to 12 proceed in forma pauperis and proposed civil rights complaint. Dkt. 1. In light of the 13 deficiencies in the complaint discussed herein, the Court will not direct service of the 14 complaint at this time. Plaintiff will be provided the opportunity -- by July 17, 2020 – to 15 show cause why plaintiff’s application to proceed in forma pauperis should not be 16 denied or file an amended complaint. 17 Background 18 Plaintiff, a prisoner at Larch Corrections Center, brings this action pursuant to 42 19 U.S.C. § 1983 against the defendants in their individual and official capacities for 20 allegedly opening plaintiff’s legal mail without him being present. Dkt. 1-1 at 2-4. Plaintiff 21 alleges that on two different occasions he received mail that he identifies as “legal mail” 22 from Okanogan Superior Court that had been opened without plaintiff being present. 23 Dkt. 1-1 at 12. Plaintiff states that he asked the duty officer why the mail had been 24 1 opened outside of his presence, but that the duty officer did not provide an explanation. 2 Dkt 1-1 at 12. Plaintiff also states that when he reviewed the opened mail, the contents 3 were out of order and had been “censored.” Dkt. 1-1 at 12. 4 Next, the complaint alleges that he attempted to send outgoing mail to a judge. 5 Dkt. 1-1 at 12. The complaint indicates that he received a rejection notice stating that,

6 because the envelope had a sticker with the correct address over an incorrect address, 7 the outgoing mail was stopped and removed from the envelope. Dkt. 1-1 at 12. Plaintiff 8 states that the notice requested that plaintiff provide a new envelope to send the 9 outgoing mail. Dkt. 1-1 at 12. 10 Plaintiff contends that these instances violated his constitutionally protected 11 rights and violated 18 U.S.C. §§ 1701-1703. Dkt. 1-1 at 12. Plaintiff also alleges that 12 these acts have “damaged the integrity of [plaintiff’s] still ongoing criminal case & 13 divorce case.” Dkt. 1-1 at 12. 14 Discussion

15 A district court may permit indigent litigants to proceed in forma pauperis upon 16 completion of a proper affidavit of indigency. See, 28 U.S.C. § 1915(a). The court has 17 broad discretion in resolving the application, but “the privilege of proceeding in forma 18 pauperis in civil actions for damages should be sparingly granted.” Weller v. Dickson, 19 314 F.2d 598, 600 (9th Cir. 1963), cert. denied 375 U.S. 845 (1963). The Court must 20 dismiss the complaint of a litigant proceeding in forma pauperis “at any time if the 21 [C]ourt determines” that the action: (i) “is frivolous or malicious”; (ii) “fails to state a claim 22 on which relief may be granted” or (iii) “seeks monetary relief against a defendant who 23 is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). A complaint is frivolous when it 24 1 has no arguable basis in law or fact. Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 2 1984). 3 Before the Court may dismiss the complaint as frivolous or for failure to state a 4 claim, it “must provide the pro se litigant with notice of the deficiencies of his or her 5 complaint and an opportunity to amend the complaint prior to dismissal.” McGuckin v.

6 Smith, 974 F.2d 1050, 1055 (9th Cir. 1992). On the other hand, leave to amend need 7 not be granted “where the amendment would be futile or where the amended complaint 8 would be subject to dismissal.” Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991). 9 When a plaintiff appears pro se in a civil rights case, “the court must construe the 10 pleadings liberally and must afford plaintiff the benefit of any doubt.” Karim-Panahi v. 11 Los Angeles Police Dep’t, 839 F.2d 621, 624 (9th Cir. 1988). However, this lenient 12 standard does not excuse a pro se litigant from meeting the most basic pleading 13 requirements. See, American Ass’n of Naturopathic Physicians v. Hayhurst, 227 F.3d 14 1104, 1107-08 (9th Cir. 2000).

15 42 U.S.C. § 1983 “affords a ‘civil remedy’ for deprivation of federally protected 16 rights caused by persons acting under color of state law.” Parratt v. Taylor, 451 U.S. 17 527, 535 (1981) overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327 18 (1986). To state a claim under Section 1983, a complaint must allege: (1) the conduct 19 complained of was committed by a person acting under color of state law, and (2) the 20 conduct deprived a person of a right, privilege, or immunity secured by the Constitution 21 or laws of the United States. Id. Section 1983 is the appropriate avenue to remedy an 22 alleged wrong only if both of these elements are present. Haygood v. Younger, 769 23 F.2d 1350, 1354 (9th Cir. 1985). 24 1 To state a claim under Section 1983, a plaintiff must set forth the specific factual 2 bases upon which the plaintiff claims each defendant is liable. Aldabe v. Aldabe, 616 3 F.2d 1089, 1092 (9th Cir. 1982). Vague and conclusory allegations of officials 4 participating in a civil rights violation are not sufficient to support a claim under Section 5 1983. Ivey v. Board of Regents, 673 F.2d 266, 269 (9th Cir. 1982).

6 A. Correspondence 7 The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused 8 shall enjoy the right … to have the Assistance of Counsel for his defense.” U.S. Const. 9 Amend. VI; see also, Gideon v. Wainwright, 372 U.S. 335, 342-43 (1963). The Ninth 10 Circuit recognized in Nordstrom v. Ryan, that “[a] criminal defendant’s ability to 11 communicate candidly and confidentially with his lawyer is essential to his defense[,]” 12 and that interference of prison officials with attorney-client correspondence may violate 13 that Sixth Amendment right. 762 F.3d 903, 910 (9th Cir. 2014), Specifically, the Court 14 held that even a single instance of a correctional officer reading mail addressed to

15 plaintiff from his criminal defense attorney was sufficient to establish a violation of the 16 Sixth Amendment right to counsel. Nordstrom, 762 F.3d at 911-12. The Ninth Circuit 17 has also held that prisoners have a Sixth Amendment right to be present while the legal 18 mail related to their criminal proceedings is opened. Mangiaracina v. Penzone, 849 F.3d 19 1191, 1196 (9th Cir. 2017). 20 Jails and prisons may impose restrictions on prisoner legal mail, so long as the 21 restrictions are “reasonably related to legitimate penological interests.” Mangiaracina, 22 849 F.3d at 1197 (citing Turner v. Safley, 482 U.S. 78 (1987)). For example, prison 23 officials may require mail from attorneys be identified as such and open such mail in the 24 1 presence of the prisoner for visual inspection. See Wolff v. McDonnell, 418 U.S. 539, 2 576-77 (1974); Sherman v. MacDougall, 656 F.2d 527, 528 (9th Cir. 1981). 3 The Ninth Circuit has held that prisoners also have a protected First Amendment 4 interest in having mail from their civil attorneys opened in their presence. Hayes v. 5 Idaho Correctional Center, 849 F.3d 1204, 1211 (9th Cir. 2017). The basis for this

6 holding, the Court reasoned, is that a prisoner who receives confidential legal mail from 7 a civil attorney which is opened outside of his presence may understandably be wary of 8 engaging in future communication about privileged legal matters i.e. his protected 9 speech may be chilled. Id. at 1210. 10 The Court further reasoned that prisoners’ communications with civil attorneys 11 often relate to lawsuits challenging the conditions of confinement in the prison or 12 wrongful conduct of prison employees and, therefore, when prison officials open legal 13 mail outside the prisoners’ presence, the prisoner may be justifiably concerned about 14 retaliation, thereby chilling the exercise of their First Amendment rights. Id.

15 Yet the Ninth Circuit has clarified that while incoming mail from a prisoner’s 16 attorney is considered “legal mail” and implicates additional constitutional protections, 17 incoming mail from the courts is not categorized as “legal mail.” Haynes, 849 F.3d at 18 1211 (citing Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir. 1996). “Accordingly, the First 19 Amendment does not prohibit opening such mail outside the recipient’s presence.” 20 Haynes, 849 F.3d at 1211 (affirming the dismissal of plaintiff’s claim relating to an 21 incident where prison officials opened mail from a federal court outside of the plaintiff’s 22 presence.). 23 24 1 Here, plaintiff alleges that the defendants opened his “legal mail” outside of his 2 presence. However, plaintiff alleges that the incoming mail that was opened was from 3 the Okanogan Superior Court. 4 Additionally, the outgoing mail that plaintiff alleges was opened, appears to be 5 correspondence with a court. Therefore, none of the correspondence referenced in the

6 complaint would be categorized as legal mail subject to Sixth or First Amendment 7 protections. See, Haynes, 849 F.3d at 1211, Keenan, 83 F.3d at 1094. Plaintiff has 8 provided no factual allegations showing how the defendants opening this 9 correspondence outside of his presence would have chilled his First Amendment rights 10 to free speech, impeded his rights to access the courts, or caused him harm. 11 Plaintiff also contends that the content of his incoming mail had been “censored.” 12 Dkt. 1-1 at 12. However, plaintiff does not explain how any of his correspondence was 13 “censored” or who allegedly “censored” his correspondence. In order to state a Section 14 1983 claim, plaintiff must set forth the specific factual basis upon which the plaintiff

15 claims each defendant is liable. Aldabe, 616 F.2d at 1092. Plaintiff must identify the 16 specific person who allegedly “censored” his correspondence and how that state 17 official’s actions (or failure to act) deprived plaintiff of a right, privilege, or immunity 18 secured by the Constitution or laws of the United States. 19 For these reasons, plaintiff has not alleged sufficient facts to state a cause of 20 action pursuant to Section 1983. 21 B. 18 U.S.C. §§ 1701-1703 22 Plaintiff’s complaint also alleges that the defendant’s conduct violated 18 U.S.C. 23 §§ 1701-1703. 24 1 18 U.S.C. §§ 1701-1703 are criminal statutes prohibiting the interference with 2 mail and other correspondence. 18 U.S.C. § 1701 (Obstruction of mails generally), 18 3 U.S.C. § 1702 (Obstruction of correspondence), 18 U.S.C. § 1703 (Delay or destruction 4 of mail or newspaper). A private right of action does not exist for all injuries caused by 5 violations of the criminal code. Cent. Bank, N.A. v. First Interstate Bank, N.A., 511 U.S.

6 164, 190 (1994) (noting that courts have been “quite reluctant to infer a private right of 7 action from a criminal prohibition alone.”) Unless “congressional intent can be inferred 8 from the language of the statute, the statutory structure, or some other source” the 9 Court will not imply a private remedy for the federal statute. Thompson v. Thompson, 10 484 U.S. 174, 179 (1988). 11 Further, Section 1983 only provides a remedy for violation of a federal statute if 12 the statute creates an unambiguously conferred right that is enforceable in a damages 13 action. Gonzaga v. Doe, 536 U.S. 273, 282-83 (2002). “[W]here the text and structure of 14 a statute provide no indication that Congress intends to create new individual rights,

15 there is no basis for a private suit, whether under Section 1983 or under an implied right 16 of action.” Id. at 286. 17 Nothing in the language of 18 U.S.C. §§ 1701-1703 unambiguously provides a 18 private right of action; several courts have held that a private right of action cannot be 19 maintained pursuant to these statutes. See, Woods v. McGuire, 954 F.2d 388 (6th Cir. 20 1992), Rodriguez v. Sohi Hemit, No. 16-778-RAJ, 2018 WL 3618260 (W.D. Wash., July 21 30, 2018), Hill v. Sands, 402 F. Supp. 1368 (N.D. Ill. 1975), Sciollino v. Marine Midland 22 Bank-Western, 463 F. Supp. 128 (W.D.N.Y. 1979). 23 24 1 For these reasons, plaintiff cannot maintain a cause of action for alleged 2 violations of 18 U.S.C. §§ 1701-1703. 3 Conclusion 4 Due to the deficiencies described above, the Court will not serve the complaint. 5 Plaintiff may show cause why plaintiff’s application to proceed in forma pauperis should

6 not be denied or may file an amended complaint to cure, if possible, the deficiencies 7 noted herein, on or before July 17, 2020. If an amended complaint is filed, it must be 8 legibly written or retyped in its entirety and contain the same case number. Any cause of 9 action alleged in the original complaint that is not alleged in the amended complaint is 10 waived. Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997), overruled in part 11 on other grounds, Lacey v. Maricopa Cnty., 693 F.3d 896 (9th Cir. 2012). 12 The Court will screen the amended complaint to determine whether it states a 13 claim for relief cognizable under 42 U.S.C. § 1983 or Bivens v. Six Unknown Named 14 Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). If the amended

15 complaint is not timely filed or fails to adequately address the issues raised herein, the 16 undersigned will recommend dismissal of this action as frivolous under 28 U.S.C. § 17 1915. 18 19 20 21 22 23 24 1 The Clerk is directed to send plaintiff the appropriate forms for filing 42 U.S.C. § 2 1983 civil rights complaint and for service, a copy of this Order and the Pro Se 3 information sheet. 4 Dated this 16th day of June, 2020. 5

6 A 7 Theresa L. Fricke 8 United States Magistrate Judge

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