1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALLEN HAMMLER, Case No. 1:19-cv-00784-DAD-BAM (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION FOR 13 v. FAILURE TO STATE A COGNIZABLE CLAIM 14 STATE OF CALIFORNIA, et al., (ECF No. 33) 15 Defendants. FOURTEEN-DAY DEADLINE 16 17 18 Plaintiff Allen Hammler (“Plaintiff”) is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action under 42 U.S.C. § 1983. On November 19, 2019, the Court 20 screened Plaintiff’s complaint and granted him leave to amend. (ECF No. 14.) Plaintiff’s first 21 amended complaint, filed on May 27, 2020, is currently before the Court for screening. (ECF No. 22 33.) 23 I. Screening Requirement and Standard 24 The Court is required to screen complaints brought by prisoners seeking relief against a 25 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 26 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 27 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 28 1 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b). 2 A complaint must contain “a short and plain statement of the claim showing that the 3 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 4 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 5 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 6 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken 7 as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, 8 Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 9 To survive screening, Plaintiff’s claims must be facially plausible, which requires 10 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 11 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. 12 Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted 13 unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the 14 plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 15 II. Plaintiff’s Allegations 16 Plaintiff is currently housed at California State Prison, Corcoran, where the events in the 17 complaint are alleged to have occurred. Plaintiff names the following defendants: (1) State of 18 California; (2) California Department of Corrections and Rehabilitation (“CDCR”); (3) 19 Correctional Officer Burnes; (4) Correctional Officer Moreno; (5) Correctional Officer Randolph; 20 (6) Correctional Officer Silva; (7) Correctional Officer Llamas; (8) Correctional Officer Resa; (9) 21 Correctional Officer and Counselor E. Moreno; (10) Correctional Officer Rocha; (11) 22 Correctional Officer Cabrara; (12) Former CDCR Secretary Scott Kernan; (13) Current CDCR 23 Secretary Ralph Diaz; and (14) Does 1-10. 24 Plaintiff alleges as follows: On March 3, 2019, Defendant Moreno went to Plaintiff’s cell. 25 Defendant Moreno stated that he had been instructed by Defendant Resa to have Plaintiff sign a 26 form indicating that a package for Plaintiff could be returned to the vendor. Plaintiff refused to 27 sign the form and informed Defendant Moreno that he was not on any package restriction and he 28 was clear to receive the package. Defendant Moreno told Plaintiff that he was not clear because 1 he had not been inside the Administrative Segregation Unit (“ASU”) or the Security Housing 2 Unit (“SHU”) for more than one year. 3 Plaintiff told Defendant Moreno that he had been in ASU for over one year as mandated 4 before an ASU prisoner is allowed to receive a package. Plaintiff then showed Defendant 5 Moreno documentation to substantiate that fact in the form of a CDCR SHU Auditor Action form 6 dated March 20, 2018, which noted that Plaintiff was placed in ASU on February 13, 2018. 7 Plaintiff also showed him a CDCR Bed Assignment sheet dated November 20, 2018, along with a 8 CDCR 128-G dated February 19, 2019, which showed that Plaintiff had been in ASU continually 9 for more than one year. Defendant Moreno then told Plaintiff that the problem was that the 128- 10 G form noted Plaintiff to be in Privilege Group D2D as of November 23, 2018 through April 22, 11 2019, which meant that he had not been in ASU for a year and had been assigned to the D2D 12 Privilege Group by the ICC Committee. Defendant Moreno indicated that he would inform 13 Defendant Resa, the supervisor handling the matter. Defendant Moreno told Plaintiff that he 14 would return the next day with his package. Defendant Moreno did not return the next day. 15 However, Plaintiff saw Defendant Randolph walking up the stairs and spoke to him regarding the 16 package. Defendant Randolph yelled that Plaintiff was on restriction. 17 Plaintiff believed he was being retaliated against in a conspiracy because he had lodged 18 complaints and voiced his concerns regarding Defendant Randolph and Defendant Burnes’ illegal 19 activities inside the ASU. Plaintiff also attempted to speak to Defendant Burnes on March 4, 20 2019, but Defendant Burnes refused to speak to him. 21 On March 5, 2019, Plaintiff again attempted to speak to Defendant Burnes (or another 22 ranking correctional officer) by asking other correctional officers to tell Defendant Burnes that 23 Plaintiff wished to speak to him. The other correctional officers refused because they were either 24 named in a complaint for their unconstitutional conduct in mistreating the mentally ill prisoners in 25 the unit or were bound by the prison’s unwritten code of silence. Because Plaintiff was unable to 26 have a correctional officer aid him in obtaining the attention of a ranking/supervising officer, 27 Plaintiff then initiated the process to see “Team,” which Plaintiff describes as a response team 28 consisting of a psychologist, registered nurse and a sergeant, who speak to a prisoner/patient to 1 determine if he has an issue with which they can help. Plaintiff asserts that the Team is used to 2 address issues possibly causing a prisoner to be in distress. To initiate the process, a prisoner has 3 to inform prison officers that he is suicidal. Plaintiff reports that he has never attempted to harm 4 himself, take his own life or speak of such things except to report that he was suicidal in order to 5 be allowed to see Team (or a psychologist) to intervene in his mistreatment by other correctional 6 officers inside the ASU/CCCMS. Plaintiff also notes that he is of a religious faith that does not 7 allow his entering Heaven if he kills himself. 8 Plaintiff informed Correctional Officer Rojas that he was suicidal so that Team could be 9 initiated. In doing so, Plaintiff refused to exit his cell, which required Officer Rojas to remain 10 posted at Plaintiff’s cell door until the psychologist arrived.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALLEN HAMMLER, Case No. 1:19-cv-00784-DAD-BAM (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION FOR 13 v. FAILURE TO STATE A COGNIZABLE CLAIM 14 STATE OF CALIFORNIA, et al., (ECF No. 33) 15 Defendants. FOURTEEN-DAY DEADLINE 16 17 18 Plaintiff Allen Hammler (“Plaintiff”) is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action under 42 U.S.C. § 1983. On November 19, 2019, the Court 20 screened Plaintiff’s complaint and granted him leave to amend. (ECF No. 14.) Plaintiff’s first 21 amended complaint, filed on May 27, 2020, is currently before the Court for screening. (ECF No. 22 33.) 23 I. Screening Requirement and Standard 24 The Court is required to screen complaints brought by prisoners seeking relief against a 25 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 26 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 27 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 28 1 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b). 2 A complaint must contain “a short and plain statement of the claim showing that the 3 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 4 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 5 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 6 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken 7 as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, 8 Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 9 To survive screening, Plaintiff’s claims must be facially plausible, which requires 10 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 11 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. 12 Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted 13 unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the 14 plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 15 II. Plaintiff’s Allegations 16 Plaintiff is currently housed at California State Prison, Corcoran, where the events in the 17 complaint are alleged to have occurred. Plaintiff names the following defendants: (1) State of 18 California; (2) California Department of Corrections and Rehabilitation (“CDCR”); (3) 19 Correctional Officer Burnes; (4) Correctional Officer Moreno; (5) Correctional Officer Randolph; 20 (6) Correctional Officer Silva; (7) Correctional Officer Llamas; (8) Correctional Officer Resa; (9) 21 Correctional Officer and Counselor E. Moreno; (10) Correctional Officer Rocha; (11) 22 Correctional Officer Cabrara; (12) Former CDCR Secretary Scott Kernan; (13) Current CDCR 23 Secretary Ralph Diaz; and (14) Does 1-10. 24 Plaintiff alleges as follows: On March 3, 2019, Defendant Moreno went to Plaintiff’s cell. 25 Defendant Moreno stated that he had been instructed by Defendant Resa to have Plaintiff sign a 26 form indicating that a package for Plaintiff could be returned to the vendor. Plaintiff refused to 27 sign the form and informed Defendant Moreno that he was not on any package restriction and he 28 was clear to receive the package. Defendant Moreno told Plaintiff that he was not clear because 1 he had not been inside the Administrative Segregation Unit (“ASU”) or the Security Housing 2 Unit (“SHU”) for more than one year. 3 Plaintiff told Defendant Moreno that he had been in ASU for over one year as mandated 4 before an ASU prisoner is allowed to receive a package. Plaintiff then showed Defendant 5 Moreno documentation to substantiate that fact in the form of a CDCR SHU Auditor Action form 6 dated March 20, 2018, which noted that Plaintiff was placed in ASU on February 13, 2018. 7 Plaintiff also showed him a CDCR Bed Assignment sheet dated November 20, 2018, along with a 8 CDCR 128-G dated February 19, 2019, which showed that Plaintiff had been in ASU continually 9 for more than one year. Defendant Moreno then told Plaintiff that the problem was that the 128- 10 G form noted Plaintiff to be in Privilege Group D2D as of November 23, 2018 through April 22, 11 2019, which meant that he had not been in ASU for a year and had been assigned to the D2D 12 Privilege Group by the ICC Committee. Defendant Moreno indicated that he would inform 13 Defendant Resa, the supervisor handling the matter. Defendant Moreno told Plaintiff that he 14 would return the next day with his package. Defendant Moreno did not return the next day. 15 However, Plaintiff saw Defendant Randolph walking up the stairs and spoke to him regarding the 16 package. Defendant Randolph yelled that Plaintiff was on restriction. 17 Plaintiff believed he was being retaliated against in a conspiracy because he had lodged 18 complaints and voiced his concerns regarding Defendant Randolph and Defendant Burnes’ illegal 19 activities inside the ASU. Plaintiff also attempted to speak to Defendant Burnes on March 4, 20 2019, but Defendant Burnes refused to speak to him. 21 On March 5, 2019, Plaintiff again attempted to speak to Defendant Burnes (or another 22 ranking correctional officer) by asking other correctional officers to tell Defendant Burnes that 23 Plaintiff wished to speak to him. The other correctional officers refused because they were either 24 named in a complaint for their unconstitutional conduct in mistreating the mentally ill prisoners in 25 the unit or were bound by the prison’s unwritten code of silence. Because Plaintiff was unable to 26 have a correctional officer aid him in obtaining the attention of a ranking/supervising officer, 27 Plaintiff then initiated the process to see “Team,” which Plaintiff describes as a response team 28 consisting of a psychologist, registered nurse and a sergeant, who speak to a prisoner/patient to 1 determine if he has an issue with which they can help. Plaintiff asserts that the Team is used to 2 address issues possibly causing a prisoner to be in distress. To initiate the process, a prisoner has 3 to inform prison officers that he is suicidal. Plaintiff reports that he has never attempted to harm 4 himself, take his own life or speak of such things except to report that he was suicidal in order to 5 be allowed to see Team (or a psychologist) to intervene in his mistreatment by other correctional 6 officers inside the ASU/CCCMS. Plaintiff also notes that he is of a religious faith that does not 7 allow his entering Heaven if he kills himself. 8 Plaintiff informed Correctional Officer Rojas that he was suicidal so that Team could be 9 initiated. In doing so, Plaintiff refused to exit his cell, which required Officer Rojas to remain 10 posted at Plaintiff’s cell door until the psychologist arrived. While waiting for the psychologist, 11 Defendant Burnes approached Plaintiff’s cell and attempted to get Plaintiff to exit the cell by 12 informing Plaintiff that he had a phone interview for a CDCR 602 complaint regarding Kern 13 Valley. Plaintiff asked why Defendant Burnes had not informed the caller that he was actively on 14 suicide watch and could not be interviewed. Defendant Burnes responded that he thought 15 Plaintiff might want to come out. Plaintiff stated that he was not going to come out and could not 16 take part in an interview until he was cleared by psych. Defendant Burnes then asked if all of it 17 was because Plaintiff wanted his package. Defendant Burnes was hoping to get Plaintiff to say 18 that it was so that a Rules Violation Report could be issued for manipulating staff. Plaintiff told 19 him no and that he would speak to the psych about it. Plaintiff asked Defendant Burnes if he was 20 acknowledging that he was interfering with Plaintiff receiving the package. Plaintiff and 21 Defendant Burnes had a brief exchange about whether defendants would be able to get away with 22 saying that they were denying him the package for being on property restriction. Defendant 23 Burnes then told Plaintiff that he would not get a package. Plaintiff told Defendant Burnes that 24 he did not have a say and that Plaintiff had the paperwork to prove his time in ASU. Plaintiff 25 would not leave the cell for the interview because he was on suicide watch. Defendant Burnes 26 told Plaintiff that he was going to tell them that Plaintiff refused the interview. 27 About 20 minutes after Defendant Burnes left, Plaintiff’s primary psychologist and a 28 mental health supervisor arrived. Plaintiff informed them of the issues that had caused him to 1 report suicidal. Plaintiff was informed that if he continued to refuse to exit his cell, the cell 2 extraction process would be initiated. Plaintiff understood and wanted to speak to a higher- 3 ranking officer. Defendant Silva then arrived. Plaintiff told Defendant Silva that he had been 4 found guilty of an RVR and placed on Loss of Privileges, but only for appliances, such as a 5 television, but had been left with no package restrictions so that he could receive the package 6 containing supplies he had ordered for an upcoming civil trial. Defendant Silva questioned 7 Plaintiff about his standing to receive packages and Plaintiff showed him all of the documents 8 necessary to substantiate that he was not on loss of privileges and had been in ASU for over a 9 year. Plaintiff also showed him information that the 128-G noted he was placed in privilege 10 group D2D on November 23, 2018, but he had not been taken to ICC and assigned to D2D until 11 February 19, 2019, and that he had been officially in ASU a year on February 13, 2019. Plaintiff 12 claims that the February 19, 2019 D2D assignment could not have precluded him from receiving 13 the package prior to D2D assignment. 14 Defendant Silva then went to speak to Defendant Llamas. When Defendant Silva 15 returned, he told Plaintiff that Defendant Llamas said that Plaintiff did not have a package coming 16 because he was D2D. Plaintiff then asked Officer Rojas to call Psychologist Kyle. The cell 17 extraction was then cancelled by Psychologist Kyle. 18 On March 7, 2019, Plaintiff talked with Defendant Moreno and explained that he was 19 denied his right to receive the package due to Defendant Moreno’s failure to ensure that the 20 correct information was reflected in the computer and on the 128-G. Defendant Moreno told 21 Plaintiff that he would inform Defendant Llamas that Plaintiff was eligible to receive the package. 22 Defendant Moreno returned and told Plaintiff that Defendant Llamas would call and inform 23 Defendant Resa to convey the package to Plaintiff. 24 On that same date, Plaintiff had Defendant Cabrara call Defendant Llamas to confirm. 25 Defendant Cabrara informed Plaintiff that Defendant Llamas acknowledged the wrong and 26 ordered her to call Defendant Resa to issue the package to Plaintiff. Defendant Cabrara did so 27 “and had Defendant Randolph intervene, instruct Resa to open the package and convey only ink 28 pens and legal pads to Plaintiff which he did without Plaintiff’s authorization engendering the tort 1 of conversion.” (ECF No. 33 at 18.) 2 On March 16, 2019, Defendants Moreno and Rocha opened the package and removed 3 only ink pens and legal paid. Defendants Moreno and Rocha then went to Plaintiff and informed 4 him that the items had not come from the package, but from other personal property. Plaintiff 5 claims that they coerced him into signing a CDCR 1083 property form dated March 17, 2019, 6 guided by their false statements and in concert with Defendant Randolph. Plaintiff claims this 7 was a conspiracy to deprive him of due process and all other protected rights. 8 Plaintiff alleges that defendants’ actions were intentional, unjustifiable, malicious, 9 wanton, arbitrary, oppressive, taken for no penological reason and with a conscious disregard for 10 Plaintiff’s constitutional rights. Plaintiff further alleges that the actions were taken with evil 11 intent to retaliate against him for exercising his right to speak about the deplorable treatment of 12 mental health prisoner/patients and for verbalizing complaints to mental health staff. Plaintiff 13 admits that with regard to retaliation, a complete chilling did not result. 14 Additionally, Plaintiff claims that defendants violated his due process rights by assigning 15 him to the D2D privilege group, where such assignment could only be accomplished via an ICC 16 hearing. Plaintiff asserts that Defendants each acknowledged that they had illegally assigned him 17 to D2D, but they failed to correct it in adherence with the unwritten policy and pattern of the code 18 of silence. Plaintiff alleges that D2D is atypical even of the lowest standard of living. 19 Plaintiff forwards the following purported claims: (1) retaliation in violation of the First 20 Amendment; (2) illegal seizure of his personal property in violation of the Fourth Amendment; 21 (3) cruel and unusual punishment in violation of the Eighth Amendment for; (4) deliberate 22 indifference in violation of the Eighth Amendment; (5) violation of Due Process of the Fourteenth 23 Amendment; (6) conspiracy under 42 U.S.C. § 1985; (7) conversion; and (8) negligence, 24 including negligent supervision. 25 As relief, Plaintiff seeks general and punitive damages. He also seeks injunctive relief. 26 III. Discussion 27 A. Eleventh Amendment Immunity 28 Plaintiff is informed that the Eleventh Amendment prohibits federal courts from hearing a 1 Section 1983 lawsuit in which damages or injunctive relief is sought against a state, its agencies 2 (such as CDCR) or individual prisons, absent “a waiver by the state or a valid congressional 3 override....” Dittman v. California, 191 F.3d 1020, 1025 (9th Cir. 1999). “The Eleventh 4 Amendment bars suits which seek either damages or injunctive relief against a state, ‘an arm of 5 the state,’ its instrumentalities, or its agencies.” See Fireman’s Fund Ins. Co. v. City of Lodi, Cal., 6 302 F.3d 928, 957 n. 28 (9th Cir. 2002) (internal quotation and citations omitted), cert. denied, 7 538 U.S. 961 (2003). “The State of California has not waived its Eleventh Amendment immunity 8 with respect to claims brought under § 1983 in federal court....” Dittman, 191 F.3d at 1025–26 9 (citing Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985)); see also Brown v. Cal. 10 Dep’t. of Corrs., 554 F.3d 747, 752 (9th Cir. 2009) (finding California Department of Corrections 11 and California Board of Prison Terms entitled to Eleventh Amendment immunity). Therefore, 12 Plaintiff cannot pursue claims for damages or injunctive relief against the State or CDCR in this 13 action. 14 B. Supervisory Liability 15 To the extent that Plaintiff seeks to hold Warden Kernan or Secretary Ralph Diaz liable 16 based solely on their supervisory roles, Plaintiff may not do so. 17 Supervisory personnel may not be held liable under section 1983 for the actions or 18 omissions of subordinate employees based on respondeat superior, or vicarious liability. Crowley 19 v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013); accord Lemire v. California Dep’t of Corr. and 20 Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013); Lacey v. Maricopa Cty., 693 F.3d 896, 915-16 21 (9th Cir. 2012) (en banc). “A supervisor may be liable only if (1) he or she is personally involved 22 in the constitutional deprivation, or (2) there is a sufficient causal connection between the 23 supervisor’s wrongful conduct and the constitutional violation.” Crowley, 734 F.3d at 977; accord 24 Lemire, 726 F.3d at 1074-75; Lacey, 693 F.3d at 915-16. “Under the latter theory, supervisory 25 liability exists even without overt personal participation in the offensive act if supervisory 26 officials implement a policy so deficient that the policy itself is a repudiation of constitutional 27 rights and is the moving force of a constitutional violation.” Crowley, 734 F.3d at 977 (citing 28 Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)) (internal quotation marks omitted). 1 Plaintiff’s amended complaint does not include allegations linking Defendants Kernan or 2 Diaz to any constitutional violation nor does it include allegations that Defendants Kernan or 3 Diaz implemented a deficient policy. Plaintiff has been unable to cure the deficiencies in his 4 complaint regarding supervisory liability. 5 C. First Amendment 6 1. Retaliation 7 “Prisoners have a First Amendment right to file grievances against prison officials and to 8 be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) 9 (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). Also protected by the First 10 Amendment is the right to pursue civil rights litigation in federal court without retaliation. Rhodes 11 v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005). “Within the prison context, a viable claim of First 12 Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some 13 adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that 14 such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did 15 not reasonably advance a legitimate correctional goal.” Id. at 567-68 (9th Cir. 2005); accord 16 Watison, 668 F.3d at 1114-15; Brodheim, 584 F.3d at 1269. 17 Plaintiff’s amended complaint fails to state a cognizable claim for relief based on 18 retaliation in violation of his First Amendment rights. Plaintiff’s allegations are insufficient to 19 demonstrate that any defendant took an adverse action against him because of any protected 20 conduct. Indeed, Plaintiff’s amended complaint demonstrates that the initial denial of his package 21 was based on his classification status, not as retaliation. Plaintiff’s amended complaint also 22 demonstrates that he was provided at least a portion of the package’s contents. Plaintiff’s 23 conclusory allegations and recitation of the elements of a retaliation claim are not enough to state 24 a claim. Further, Plaintiff has not adequately alleged that the remaining contents of his package, 25 if any, were allowable or that there was not a legitimate penological reason for withholding them. 26 Plaintiff also admits that the conduct at issue did not have chilling effect. 27 2. Incoming Mail 28 Plaintiff’s allegations center around his First Amendment right to receive mail. Generally, 1 prisoners have “a First Amendment right to send and receive mail.” Witherow v. Paff, 52 F.3d 2 264, 265 (9th Cir. 1995). However, there must be a “delicate balance” between prisoners’ First 3 Amendment rights and the discretion given to prison administrators to govern the order and 4 security of the prison. Thornburgh v. Abbott, 490 U.S. 401, 407-08 (1989). A prison may adopt 5 regulations or practices for incoming mail which impinge on prisoners’ First Amendment rights 6 as long as the regulations are “reasonably related to legitimate penological interests.” Turner v. 7 Safley, 482 U.S. 78, 89 (1987). Nonetheless, isolated incidents of mail interference or tampering 8 will not support a claim under section 1983 for violation of plaintiff's constitutional rights. See 9 Crofton v. Roe, 170 F.3d 957, 961 (9th Cir. 1999) (temporary delay or isolated incident of delay 10 of mail does not violate a prisoner’s First Amendment rights); see also Davis v. Goord, 320 F.3d 11 346, 351 (2d. Cir.2003) (isolated incident of mail tampering usually insufficient to state claim). 12 Here, Plaintiff alleges only an isolated incident of a single package being withheld, which is not 13 sufficient to support a constitutional violation. 14 D. Fourth Amendment – Seizure 15 Plaintiff’s Fourth Amendment claim fails as a matter of law because Plaintiff does not 16 have a right to be free from the search and seizure of his personal property. Hudson v. Palmer, 17 468 U.S. 517, 536 (1984); Taylor v. Knapp, 871 F.2d 803, 806 (9th Cir. 1989). “Lawful 18 incarceration necessarily entails limitations upon many of the rights enjoyed by ordinary citizens. 19 An inmate’s Fourth Amendment rights are among the rights subject to curtailment. In particular, 20 the fourth amendment does not protect an inmate from the seizure and destruction of his 21 property.” Taylor, 871 F.2d at 806 (internal citations omitted). 22 E. Deprivation of Property 23 Plaintiff’s claim for deprivation of property is grounded in the Fourteenth Amendment, 24 not the Eighth Amendment. See, e.g., Fuller v. Nevada, No. 2:19-cv-00819-APG-BNW, 2020 25 WL 1469811, at *2 (D. Nev. Mar. 26, 2020) (finding prisoner’s claim for deprivation of property 26 grounded in the Fourteenth Amendment, not the Eighth Amendment); Perryman v. Dir., No. 27 2:19-CV-2480 DB P, 2020 WL 311661, at *2 (E.D. Cal. Jan. 21, 2020) (finding prisoner could 28 not allege a claim under the Eighth Amendment for loss of his property). 1 F. Fourteenth Amendment 2 1. Deprivation of Property 3 Prisoners have a protected interest in their personal property. Hansen v. May, 502 F.2d 4 728, 730 (9th Cir. 1974). An authorized, intentional deprivation of property is actionable under 5 the Due Process Clause. See Hudson v. Palmer, 468 U.S. 517, 532 n.13 (1984) (citing Logan v. 6 Zimmerman Brush Co., 455 U.S. 422, 435–36 (1982)); Quick v. Jones, 754 F.2d 1521, 1524 (9th 7 Cir. 1985). However, “an unauthorized intentional deprivation of property by a state employee 8 does not constitute a violation of the procedural requirements of the Due Process Clause of the 9 Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available.” 10 Hudson, 468 U.S. at 533. 11 Here, Plaintiff’s amended complaint is based on allegations that certain defendants 12 engaged in an unauthorized, intentional deprivation of his property. Due process is therefore 13 satisfied if there is a meaningful post-deprivation remedy available to him. Id. Plaintiff has an 14 adequate post-deprivation remedy available under California law. Barnett v. Centoni, 31 F.3d 15 813, 816-17 (9th Cir. 1994) (citing Cal. Gov’t Code §§ 810-895). Therefore, Plaintiff fails to 16 allege a cognizable due process claim based on the deprivation of his property (package) against 17 any of the named defendants. 18 2. Classification 19 Although unclear, it appears that Plaintiff is challenging his classification or assignment to 20 privilege group D2D without a hearing by the ICC. Prisoners have no federally protected liberty 21 interest in their classification status. See Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 22 1987). No federal due process right is implicated by a prison’s classification decisions. See 23 Meachum v. Fano, 427 U.S. 215, 224–25, (1976). 24 Although Plaintiff appears to complain that he was assigned to D2D without the benefit of 25 hearing by the ICC, Plaintiff admits that he was taken to ICC and assigned to D2D on February 26 19, 2019. 27 G. Conspiracy 28 To state a claim for conspiracy under section 1983, Plaintiff must show the existence of an 1 agreement or a meeting of the minds to violate his constitutional rights, and an actual deprivation 2 of those constitutional rights. Avalos v. Baca, 596 F.3d 583, 592 (9th Cir.2010); Franklin v. Fox, 3 312 F.3d 423, 441 (9th Cir. 2001). “[T]o state a claim for conspiracy under § 1985, a plaintiff 4 must first have a cognizable claim under § 1983.” Olsen v. Idaho State Bd. of Med., 363 F.3d 5 916, 930 (9th Cir. 2004) (citation omitted). 6 Here, Plaintiff’s amended complaint fails to state a claim for conspiracy. Plaintiff has not 7 adequately alleged a meeting of the minds or a deprivation of his constitutional rights. Moreover, 8 in the absence of a cognizable § 1983 claim, Plaintiff cannot support a claim for conspiracy under 9 § 1985. 10 H. State Law Claims 11 Pursuant to 28 U.S.C. § 1367(a), in any civil action in which the district court has original 12 jurisdiction, the district court “shall have supplemental jurisdiction over all other claims in the 13 action within such original jurisdiction that they form part of the same case or controversy under 14 Article III,” except as provided in subsections (b) and (c). “The district court may decline to 15 exercise supplemental jurisdiction over a claim under subsection (a) if ... the district court has 16 dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). The 17 Supreme Court has cautioned that “if the federal claims are dismissed before trial, ... the state 18 claims should be dismissed as well.” United Mine Workers of America v. Gibbs, 383 U.S. 715, 19 726 (1966). Here, Plaintiff’s amended complaint fails to state any cognizable federal claims. It 20 will therefore be recommended that the Court decline to exercise jurisdiction over Plaintiff’s state 21 law claims. 22 IV. Conclusion and Order 23 Plaintiff’s amended complaint fails to state a cognizable claim for relief under section 24 1983. Despite being provided with relevant pleading and legal standards, Plaintiff has been 25 unable to cure the deficiencies in his complaint by amendment, and thus further leave to amend is 26 not warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). 27 Accordingly, IT IS HEREBY RECOMMENDED as follows: 28 1. Plaintiff’s claims brought pursuant to section 1983 in this action be dismissed 1 based on Plaintiff’s failure to state a cognizable claim upon which relief may be granted; and 2 2. The Court decline to exercise supplemental jurisdiction over Plaintiff’s purported 3 state law claims. 4 These Findings and Recommendation will be submitted to the United States District Judge 5 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 6 (14) days after being served with these Findings and Recommendation, Plaintiff may file written 7 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 8 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 9 specified time may result in the waiver of the “right to challenge the magistrate’s factual 10 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 11 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 12 IT IS SO ORDERED. 13
14 Dated: July 22, 2020 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 15
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