1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES HEAD, No. 2:19-cv-01663-CKD-P 12 Plaintiff, 13 v. ORDER AND 14 COUNTY OF SACRAMENTO, et al., FINDINGS AND RECOMMENDATION 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. § 18 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 19 636(b)(1) and plaintiff has consented to have all matters in this action before a United States 20 Magistrate Judge. See 28 U.S.C. § 636(c). 21 Plaintiff requests leave to proceed in forma pauperis. Because plaintiff has submitted a 22 declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted. 23 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 24 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the 25 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 26 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 27 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by 28 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 1 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 2 I. Screening Requirement 3 The court is required to screen complaints brought by prisoners seeking relief against a 4 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 5 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 6 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 7 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 8 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 9 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 10 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 11 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 12 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 13 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 14 Cir. 1989); Franklin, 745 F.2d at 1227. 15 In order to avoid dismissal for failure to state a claim a complaint must contain more than 16 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 17 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 18 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 19 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 20 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 21 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 22 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 23 at 678. When considering whether a complaint states a claim upon which relief can be granted, 24 the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and 25 construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 26 U.S. 232, 236 (1974). 27 ///// 28 ///// 1 II. Allegations in the Complaint 2 Plaintiff, who is currently incarcerated at the Federal Correctional Institution in 3 Cumberland, Maryland, brings this suit against Sacramento County Sheriff’s Deputy Kenneth 4 Shelton and Assistant United States Attorney Ellen Endrizzi for asserted violations of his 5 constitutional rights while he was a federal pretrial detainee at the Sacramento County Main Jail 6 in 2009. He seeks damages and declaratory and injunctive relief. 7 Specifically, plaintiff alleges that defendant Shelton provided defendant Endrizzi with his 8 attorney-client privileged communications including his jail phone calls, copies of his mail and 9 social media all without a warrant. ECF No. 1 at 4-5. Defendant Endrizzi then used these 10 materials to “plaintiff’s detriment” including during a bail hearing in his federal criminal 11 prosecution in two separate cases in which he was ultimately convicted. ECF No. 1 at 5, 11-12; 12 see also United States v. Charles Head, et al., Case No. 2:08-cr-00093-KJM-AC (E.D. Cal.); 13 United States v. Charles Head, et al., Case No. 2:08-cr-00116-KJM-AC (E.D. Cal.).1 Plaintiff 14 also alleges that defendant Shelton conducted multiple cell searches in retaliation for plaintiff’s 15 2009 grievances about his mail being delayed or not delivered at all to his attorney. ECF No. 1 at 16 7-8. Plaintiff alleges that defendant Shelton seized his “personal mail, legal notes, journal 17 records, and other papers” from his jail cell during these searches without providing him with a 18 property receipt in violation of state regulations. ECF No. 1 at 9. According to plaintiff, these 19 combined actions by defendants constitute a civil conspiracy to violate his constitutional rights. 20 ECF No. 1 at 13. 21 III. Legal Standards 22 Standing alone, attorney-client privilege is merely a rule of evidence and not a free- 23 standing constitutional right. Partington v. Gedan, 961 F.2d 852, 863 (9th Cir. 1992) (citing 24 Clutchette v. Rushen, 770 F.2d 1469, 1471 (9th Cir. 1985)) (quotation marks omitted). The 25 Supreme Court has held that governmental intrusion into the attorney-client privilege is not 26 1 The court takes judicial notice of the docket in both of these cases. See Bennett v. Medtronic, 27 Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002) (stating that “we may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a 28 direct relation to matters at issue”) (internal quotation and citation omitted). 1 sufficient by itself to constitute a Sixth Amendment violation. Weatherford v. Bursey, 429 U.S. 2 545, 558 (1977). Thus, violation of the attorney-client privilege implicates the Sixth Amendment 3 right to counsel only when the intrusion substantially prejudices the defendant.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES HEAD, No. 2:19-cv-01663-CKD-P 12 Plaintiff, 13 v. ORDER AND 14 COUNTY OF SACRAMENTO, et al., FINDINGS AND RECOMMENDATION 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. § 18 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 19 636(b)(1) and plaintiff has consented to have all matters in this action before a United States 20 Magistrate Judge. See 28 U.S.C. § 636(c). 21 Plaintiff requests leave to proceed in forma pauperis. Because plaintiff has submitted a 22 declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted. 23 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 24 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the 25 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 26 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 27 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by 28 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 1 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 2 I. Screening Requirement 3 The court is required to screen complaints brought by prisoners seeking relief against a 4 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 5 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 6 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 7 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 8 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 9 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 10 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 11 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 12 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 13 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 14 Cir. 1989); Franklin, 745 F.2d at 1227. 15 In order to avoid dismissal for failure to state a claim a complaint must contain more than 16 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 17 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 18 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 19 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 20 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 21 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 22 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 23 at 678. When considering whether a complaint states a claim upon which relief can be granted, 24 the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and 25 construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 26 U.S. 232, 236 (1974). 27 ///// 28 ///// 1 II. Allegations in the Complaint 2 Plaintiff, who is currently incarcerated at the Federal Correctional Institution in 3 Cumberland, Maryland, brings this suit against Sacramento County Sheriff’s Deputy Kenneth 4 Shelton and Assistant United States Attorney Ellen Endrizzi for asserted violations of his 5 constitutional rights while he was a federal pretrial detainee at the Sacramento County Main Jail 6 in 2009. He seeks damages and declaratory and injunctive relief. 7 Specifically, plaintiff alleges that defendant Shelton provided defendant Endrizzi with his 8 attorney-client privileged communications including his jail phone calls, copies of his mail and 9 social media all without a warrant. ECF No. 1 at 4-5. Defendant Endrizzi then used these 10 materials to “plaintiff’s detriment” including during a bail hearing in his federal criminal 11 prosecution in two separate cases in which he was ultimately convicted. ECF No. 1 at 5, 11-12; 12 see also United States v. Charles Head, et al., Case No. 2:08-cr-00093-KJM-AC (E.D. Cal.); 13 United States v. Charles Head, et al., Case No. 2:08-cr-00116-KJM-AC (E.D. Cal.).1 Plaintiff 14 also alleges that defendant Shelton conducted multiple cell searches in retaliation for plaintiff’s 15 2009 grievances about his mail being delayed or not delivered at all to his attorney. ECF No. 1 at 16 7-8. Plaintiff alleges that defendant Shelton seized his “personal mail, legal notes, journal 17 records, and other papers” from his jail cell during these searches without providing him with a 18 property receipt in violation of state regulations. ECF No. 1 at 9. According to plaintiff, these 19 combined actions by defendants constitute a civil conspiracy to violate his constitutional rights. 20 ECF No. 1 at 13. 21 III. Legal Standards 22 Standing alone, attorney-client privilege is merely a rule of evidence and not a free- 23 standing constitutional right. Partington v. Gedan, 961 F.2d 852, 863 (9th Cir. 1992) (citing 24 Clutchette v. Rushen, 770 F.2d 1469, 1471 (9th Cir. 1985)) (quotation marks omitted). The 25 Supreme Court has held that governmental intrusion into the attorney-client privilege is not 26 1 The court takes judicial notice of the docket in both of these cases. See Bennett v. Medtronic, 27 Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002) (stating that “we may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a 28 direct relation to matters at issue”) (internal quotation and citation omitted). 1 sufficient by itself to constitute a Sixth Amendment violation. Weatherford v. Bursey, 429 U.S. 2 545, 558 (1977). Thus, violation of the attorney-client privilege implicates the Sixth Amendment 3 right to counsel only when the intrusion substantially prejudices the defendant. See United States 4 v. Irwin, 612 F.2d 1182, 1186 (9th Cir. 1980); Partington, 961 F.2d at 863 (quotation marks 5 omitted). Prejudice occurs when “evidence gained through the interference is used against the 6 defendant at trial,” or results “from the prosecution's use of confidential information pertaining to 7 the defense plans and strategy, from government influence which destroys the defendant's 8 confidence in his attorney, and from other actions designed to give the prosecution an unfair 9 advantage at trial.” Irwin, 612 F.2d at 1186-87. 10 Establishing prejudice resulting from a violation of the attorney-client privilege creates an 11 additional difficulty when such claim is presented in a federal civil rights action pursuant to 42 12 U.S.C. § 1983. If plaintiff claims that he was prejudiced because his criminal defense was 13 compromised by the unlawful seizure of his attorney-client correspondence, any Sixth 14 Amendment claim would be barred by Heck v. Humphrey, 512 U.S. 477, 486 (1994), for it would 15 amount to a collateral attack on plaintiff's federal convictions. Valdez v. Rosenbaum, 302 F.3d 16 1039, 1049 (9th Cir. 2002) (finding a Sixth Amendment challenge by a federal pretrial detainee to 17 a local jail requirement that ad seg inmates obtain written permission from jail staff to call their 18 attorneys was barred by Heck). “The problem for plaintiff, however, is that if made this showing 19 of prejudice would show that he was denied the effective assistance of counsel in his criminal 20 trial, and thus call into question the validity of his underlying conviction.” Horacek v. Seaman, 21 2009 WL 2928546, at *10 (E.D. Mich. Sept. 10, 2009). In other words, plaintiff’s claim is not 22 cognizable via a § 1983 action. Either the illegal seizure of his attorney-client materials harmed 23 his criminal defense, in which case the Heck bar would foreclose this action, or it caused no such 24 harm, in which case no Sixth Amendment claim exists. 25 To the extent that plaintiff names a federal prosecutor as a defendant in this civil action, 26 prosecutors are absolutely immune from civil suits for damages under § 1983 which challenge 27 activities related to the initiation and presentation of criminal prosecutions. Imbler v. Pachtman, 28 424 U.S. 409 (1976). Determining whether a prosecutor’s actions are immunized requires a 1 functional analysis. The classification of the challenged acts, not the motivation underlying them, 2 determines whether absolute immunity applies. Ashelman v. Pope, 793 F.2d 1072 (9th Cir. 1986) 3 (en banc). The prosecutor’s quasi-judicial functions, rather than administrative or investigative 4 functions, are absolutely immune. Thus, even charges of malicious prosecution, falsification of 5 evidence, coercion of perjured testimony and concealment of exculpatory evidence will be 6 dismissed on grounds of prosecutorial immunity. See Stevens v. Rifkin, 608 F.Supp. 710, 728 7 (N.D. Cal. 1984). 8 Plaintiff also appears to raise a claim of “deliberate indifference.” Although conditions of 9 confinement claims brought by pretrial detainees are analyzed under the Due Process Clause of 10 the Fourteenth Amendment rather than under the Cruel and Unusual Punishments Clause of the 11 Eighth Amendment, the Eighth Amendment's deliberate indifference standard sets the minimum 12 standard of care due to pretrial detainees. Oregon Advocacy Center v. Mink, 322 F.3d 1101, 13 1120 (9th Cir. 2003). Where a prisoner alleges injuries stemming from unsafe conditions of 14 confinement, prison officials may be held liable only if they acted with “deliberate indifference to 15 a substantial risk of serious harm.” Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). The 16 deliberate indifference standard involves an objective and a subjective prong. First, the alleged 17 deprivation must be, in objective terms, “sufficiently serious....” Farmer v. Brennan, 511 U.S. 18 825, 834 (1994) (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Second, the prison official 19 must “know[ ] of and disregard[ ] an excessive risk to inmate health or safety....” Farmer, 511 20 U.S. at 837. 21 The allegations in the complaint also concern retaliatory cell searches. Prison officials 22 generally cannot retaliate against inmates for exercising First Amendment rights. Rizzo v. 23 Dawson, 778 F.2d 527, 531 (9th Cir. 1985). Because a prisoner’s First Amendment rights are 24 necessarily curtailed, however, a successful retaliation claim requires a finding that “the prison 25 authorities’ retaliatory action did not advance legitimate goals of the correctional institution or 26 was not tailored narrowly enough to achieve such goals.” Id. at 532. The plaintiff bears the 27 burden of pleading and proving the absence of legitimate correctional goals for the conduct of 28 which he complains. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). 1 IV. Analysis 2 The court has reviewed plaintiff’s complaint and finds that it fails to state a claim upon 3 which relief can be granted under federal law and seeks relief from a defendant who is immune. 4 See 28 U.S.C. § 1915A(b). Therefore, plaintiff’s complaint should be dismissed. 5 First, the claims related to the violation of the attorney-client privilege either do not raise a 6 constitutional violation or, if they do, are barred by Heck. Next, the court points out that the 7 deliberate indifference standard of the Eighth Amendment does not apply to the search and 8 seizure of any attorney-client communications at issue in the complaint. In the absence of (1) an 9 objectively serious risk of harm to plaintiff's health or safety and (2) the requisite state of mind, 10 which is deliberate indifference, plaintiff's claim fails as a matter of law. Additionally, all claims 11 against defendant Endrizzi should be dismissed because as a federal prosecutor she has absolute 12 immunity from suit. See Imbler, 424 U.S. 409. Plaintiff’s alleged retaliation claim based on cell 13 searches in 2009 are subject to dismissal because they are clearly time-barred.2 Finally, because 14 plaintiff has failed to state any freestanding claim of a constitutional violation, he necessarily 15 cannot state a claim for conspiracy to violate civil rights under federal law. See Symonette v. 16 City of N. Las Vegas, 449 Fed. App'x 683 (9th Cir. 2011). 17 V. Leave to Amend 18 If the court finds that a complaint should be dismissed for failure to state a claim, the court 19 has discretion to dismiss with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1126- 20 30 (9th Cir. 2000) (en banc). Leave to amend should be granted if it appears possible that the 21 defects in the complaint could be corrected, especially if a plaintiff is pro se. Id. at 1130-31; see
22 2 Plaintiff had four years from the date of the cell searches complained of within which to file 23 suit. See Jones v. Blanas, 393 F.3d 918, 927 (2004) (stating that federal courts should apply the forum state’s statute of limitations for personal injury actions because § 1983 contains no specific 24 statute of limitations); see also Cal. Civ. Proc. Code § 335.1 (establishing a two year statute of limitations for personal injury actions occurring after January1, 2003); Cal. Civ. Proc. Code § 25 352.1 (2007) (providing a two-year tolling provision of a statute of limitations for prisoners serving less than a life sentence). Plaintiff’s contention that he did not discover that his attorney- 26 client privileged materials had been disclosed to defendant Endrizzi until “the year 2018” does 27 not provide a basis to toll the statute of limitations for his retaliation claim from 2009. ECF No. 1 at 15. Plaintiff’s own allegations demonstrate that the claim is time-barred and not subject to any 28 equitable tolling. 1 also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant must be given 2 leave to amend his or her complaint, and some notice of its deficiencies, unless it is absolutely 3 clear that the deficiencies of the complaint could not be cured by amendment.”) (citing Noll v. 4 Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)). However, if, after careful consideration, it is clear 5 that a complaint cannot be cured by amendment, the court may dismiss without leave to amend. 6 Cato, 70 F.3d at 1005-06. 7 In this case, the undersigned recommends dismissing the complaint without leave to 8 amend. Here, amendment would be futile because the deficiencies identified above are not 9 curable in a manner that would lead to any cognizable claim for relief against a defendant who is 10 not immune from suit. If plaintiff’s federal convictions are invalidated based on his pending post- 11 conviction challenges, plaintiff may file a new complaint. See Trimble v. City of Santa Rosa, 49 12 F.3d 583 (9th Cir. 1995). For all these reasons, the undersigned recommends that this action be 13 dismissed without leave to amend. Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013) (“A 14 district court may deny leave to amend when amendment would be futile.”). 15 VI. Plain Language Summary for Pro Se Party 16 The following information is meant to explain this order in plain English and is not 17 intended as legal advice. 18 It is recommended that your complaint be dismissed because it is frivolous and fails to 19 state any cognizable claim for relief. Allowing you to amend the complaint would be futile 20 because it does not appear that you could fix the issues with the complaint. As a result, it is 21 recommended that you not be granted leave to amend your complaint and that this civil action be 22 closed. 23 If you disagree with this recommendation, you have 14 days to explain why it is not the 24 correct result. Label your explanation as “Objections to the Magistrate Judge’s Findings and 25 Recommendations.” 26 In accordance with the above, IT IS HEREBY ORDERED that: 27 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 3) is granted. 28 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees 1 | shall be collected and paid in accordance with this court’s order to the Federal Correctional 2 | Institution filed concurrently herewith. 3 3. The Clerk of Court shall randomly assign this matter to a district court judge. 4 IT IS FURTHER RECOMMENDED that: 5 1. Plaintiffs complaint be dismissed without leave to amend and this case be closed. 6 2. Plaintiffs motion for a temporary restraining order? (ECF No. 4) be denied as moot. 7 These findings and recommendations are submitted to the United States District Judge 8 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 9 | after being served with these findings and recommendations, any party may file written 10 | objections with the court and serve a copy on all parties. Such a document should be captioned 11 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 12 | objections shall be served and filed within fourteen days after service of the objections. The 13 | parties are advised that failure to file objections within the specified time may waive the right to 14 | appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 15 || Dated: December 16, 2019 CA rd Kt | { gt 16 CAROLYN K.DELANEY 7 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 12/head1663.f&r.docx 24 25 26 27 ——_——_ 3 Plaintiff's motion seeks “to compel the defendant’s preservation of evidence until the 28 | disposition of the complaint.” ECF No. 4-1 at 2.