(PC) Kiger v. Johnson

• Court: District Court, E.D. California
• Decided: January 30, 2024
• Docket: 2:23-cv-01263
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHNATHAN HOWARD KIGER, No. 2:23-cv-1263 KJM DB P 12 Plaintiff, 13 v. ORDER 14 TRACY JOHNSON, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 18 U.S.C. § 1983. Plaintiff claims that defendants improperly handled his legal mail in violation of 19 his constitutional rights. Presently before the court is plaintiff’s motion to appoint counsel (ECF 20 No. 14) and his first amended complaint for screening (ECF No. 13). For the reasons set forth 21 below, the undersigned deny the motion to appoint counsel without prejudice and dismiss the 22 amended complaint with leave to amend. 23 SCREENING 24 I. Legal Standards 25 The court is required to screen complaints brought by prisoners seeking relief against a 26 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 27 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 28 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 1 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 2 U.S.C. § 1915A(b)(1) & (2). 3 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 4 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 5 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 6 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 7 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 8 pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227. 9 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 10 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 11 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell 12 AtlanticCorp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 13 (1957)). 14 However, in order to survive dismissal for failure to state a claim a complaint must 15 contain more than “a formulaic recitation of the elements of a cause of action;” it must contain 16 factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 17 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the 18 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 19 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all 20 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 21 The Civil Rights Act under which this action was filed provides as follows: 22 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 23 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, 24 or other proper proceeding for redress. 25 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the 26 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 27 Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 28 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the 1 meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or 2 omits to perform an act which he is legally required to do that causes the deprivation of which 3 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 4 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 5 their employees under a theory of respondeat superior and, therefore, when a named defendant 6 holds a supervisorial position, the causal link between him and the claimed constitutional 7 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 8 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations 9 concerning the involvement of official personnel in civil rights violations are not sufficient. See 10 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 11 II. Allegations in the Complaint 12 Plaintiff states the events giving rise to the claim occurred while he was incarcerated at 13 Folsom State Prison (“FSP”). (ECF No. 13 at 1.) He has identified the following defendants: (1) 14 FSP Warden Tracy Johnson and (2) FSP Lieutenant O’Hagan. (Id.) 15 Plaintiff states, defendant Johnson “is charged with operating Folsom State Prison, 16 maintaining safety, security, and administering Folsom State Prisons personnel/employees and 17 prisoners [sic] population.” (Id. at 2.) He further states, “the Defendant is alleged to have 18 violated Plaintiffs [sic] protected Right to correspondence under the 1st, 5th, and 14th 19 Amendments and his State created right to Appeal.” He further alleges Johnson “had evidence 20 that an employee in her mailroom opened up his confidential legal mail outside Plaintiffs [sic] 21 Federally protected procedural due process Right to be present at its opening.” (Id.) He claims 22 Johnson “had a clear duty to investigate, and emplace [sic] proper protections to insure [sic] such 23 occurrences do not happen again, as if confidential legal mail is truly accidently opened, 24 employees are to follow a procedural process and that process was not followed.” (Id. at 2-3.) 25 Plaintiff further alleges “Johnson illegally operated the appeal against Defendant O’Hagan 26 as a dead end when it was falsely documented that Defendant O’Hagan was merely closing the 27 second claim, which was already done, and only Defendant Johnson had the authority to do as 28 ‘Hiring Authority.’” (Id. at 3.) Plaintiff states O’Hagan “injected himself into the Grievance 1 Process as a mere intimidator to keep [plaintiff] from pursuing his State created Right to appeal 2 for the assertion of his Federally Protected Rights.” (Id.) 3 Plaintiff also alleges that “[d]ue to the violations of State created Federally Protect mail 4 Rights, that Right also led to violations of the Health Insurance Portability and Accountability Act 5 of 1996 (HIPAA Rights) which are also Federally Protected.” (Id.) 6 III. Does Plaintiff State a Claim under § 1983? 7 A. FAC Fails to Correct Deficiencies Noted in Prior Screening Order 8 Plaintiff was previously advised that the allegations in the original complaint were not 9 sufficiently specific to state a potentially cognizable claim. (ECF No. 7 at 6.) In the original 10 complaint, plaintiff provided facts regarding when alleged rights violations occurred and some 11 information about the senders or recipients of the items of mail plaintiff claims were mishandled. 12 (ECF No. 1 at 2-5; ECF No. 7 at 4-5.) The court notes that the allegations contained in the first 13 amended complaint are less specific than the allegations contained in the original complaint 14 because plaintiff has failed to state when the alleged violations took place and who sent the 15 correspondence at issue. 16 Plaintiff was also advised that in order to state a claim under § 1983, he must link the 17 named defendant to their participation in the alleged rights violation. (ECF No. 7 at 9.) The 18 amended complaint identifies two defendants FSP Warden Tracy Johnson and FSP Lieutenant 19 O’Hagan. (ECF No. 13 at 1.) However, as set forth below, the allegations against each of these 20 defendants are too conclusory to state a potentially cognizable claim. 21 B. Mail 22 As plaintiff was previously advised (ECF No. 7 at 5-6), prisoners have “a First 23 Amendment right to send and receive mail.” Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) 24 (per curiam). Nevertheless, prison officials have a legitimate governmental interest in imposing 25 certain restraints on inmate or detainee correspondence to maintain order and security. See 26 Procunier v. Martinez, 416 U.S. 396, 413 (1974), overturned on other grounds by Thornburgh v. 27 Abbott, 490 U.S. 401, 413-14 (1989). The Ninth Circuit, “recognize[s] that prisoners have a 28 //// 1 protected First Amendment interest in having properly marked legal mail [including civil mail] 2 opened only in their presence.” Hayes, 849 F.3d at 1211. 3 “[A] plaintiff need not allege a longstanding practice of violating his First Amendment 4 rights in order to state a claim for relief on a direct liability theory.” Id. at 1212. Isolated 5 incidents of interference without any evidence of improper motive or interference with the 6 inmate’s right to counsel or access to the courts fails to show a constitutional violation. Smith v. 7 Maschner, 899 F.2d 940, 944 (10th Cir. 1990). “Two or three pieces of mail opened in an 8 arbitrary or capricious way suffice to state a claim.” Id. at 1211 (quoting Merriweather v. 9 Zamora, 569 F.3d 307, 318 (6th Cir. 2009)) (internal quotations omitted). 10 Additionally, the Sixth Amendment prohibits guards from reading prisoner legal mail and 11 protects the right of a prisoner to be present while legal mail relating to criminal proceedings is 12 opened. Mangiaracina v. Penzone, 849 F.3d 1191 (9th Cir. 2017). However, merely negligent 13 conduct on the part of prison officials is not sufficient to state a claim. Id. 14 Plaintiff was previously advised of the legal standards applicable to a claim for violation 15 of his right to send and receive mail. (ECF No. 7 at 5-6.) However, the deficiencies identified in 16 the prior screening were not remedied in the first amended complaint. In the amended complaint, 17 plaintiff claims his right to send and receive mail has been violated. (ECF No. 13 at 2-3.) He has 18 not, however, provided any facts stating when the alleged violations occurred or any additional 19 supporting facts. Therefore, the allegations in the amended complaint are insufficient to state a 20 potentially cognizable claim. In any amended complaint plaintiff must allege facts indicating (1) 21 when the alleged violations took place; (2) clarify who sent the mail; (3) indicate whether it was 22 properly marked as legal mail; and (4) connect the alleged mishandling to a named defendant. 23 C. Supervisory Liability 24 Plaintiff alleges that FSP Warden Tracy Johnson violated his rights because the warden is 25 responsible for the operation of the prison facility and has a duty to protect his rights. (ECF No. 26 13 at 2.) 27 Such allegations are not sufficient to state a potentially cognizable claim because 28 supervisory personnel are generally not liable under § 1983 for the actions of their employees 1 under a theory of respondeat superior and, therefore, when a named defendant holds a 2 supervisorial position, the causal link between him and the claimed constitutional violation must 3 be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. 4 Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations concerning the 5 involvement of official personnel in civil rights violations are not sufficient. See Ivey .v Board of 6 Regents, 673 F.2d 266, 268 (9th Cir. 1982). 7 Plaintiff could potentially state a claim against supervisory defendants by identifying a 8 policy instituted by these defendants that harmed him or that the supervisor failed to adequately 9 train subordinate employees. In order to state a claim based on such a theory of liability, plaintiff 10 must: (1) identify the policy with specificity, (2) show that the defendant was directly responsible 11 for it, (3) show that the defendant knew the policy could cause plaintiff harm, and (4) show how 12 the policy caused him harm. See Starr v. Baca, 652 F.3d 1202, 1207-08 (9th Cir. 2011). To 13 allege a defendant failed to train him, plaintiff must show: (1) that the defendant was responsible 14 for training, (2) just what the defendant did or did not do, (3) that the defendant knew his actions 15 could cause plaintiff harm, and (4) that the actions did cause plaintiff harm. See Edgerly v. City 16 & Cnty. of S.F., 599 F.3d 946, 962 (9th Cir. 2010) (dismissing supervisory liability claim when 17 no facts “suggest [Sheriff] provided any training to Officers . . . ., or that he was responsible for 18 providing formal training to any officers.”). 19 D. Grievance 20 Plaintiff insinuates that his rights were violated in connection with a grievance. He 21 references a “right to appeal . . . next level processing, for which Defendant Johnson illegally 22 operated the appeal against Defendant O’Hagan as a dead end.” (ECF No. 13 at 3.) He further 23 states that O’Hagan “interjected himself into the Grievance Process as a mere intimidator to keep 24 [plaintiff] from pursuing his State created Right to appeal . . . .” (Id.) 25 It is well-settled that prisoners have no separate constitutional entitlement to a specific 26 grievance procedure. See Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); see also Ramirez 27 v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann, 855 F.2d at 640)). Accordingly, any 28 //// 1 allegation that his grievance was not properly handled or processed by defendants fails to state a 2 claim. 3 E. HIPAA 4 Plaintiff claims that the violation of his right to send and receive mail “also led to 5 violations of HIPAA. (ECF No. 13 at 3.) Plaintiff’s claims of a HIPAA violation will not be 6 addressed here. See Wilkerson v. Shineski, 606 F.3d 1256, 1267 n.4 (10th Cir. 2010) (“HIPAA 7 does not create a private right of action for alleged disclosures of confidential medical 8 information.”). If plaintiff feels his HIPAA rights to confidentiality of his medical information 9 have been violated, he may submit a complaint with the Department of Health and Human 10 Services. See https://www.hhs.gov/hipaa/filing-a-complaint/index.html. 11 IV. Amending the Complaint 12 As set forth above, the first amended complaint fails to state a potentially cognizable 13 claim. However, plaintiff will be given the option to file an amended complaint. Plaintiff is 14 advised that in an amended complaint he must clearly identify each defendant and the action that 15 defendant took that violated his constitutional rights. The court is not required to review exhibits 16 to determine what plaintiff’s charging allegations are as to each named defendant. The charging 17 allegations must be set forth in the amended complaint, so defendants have fair notice of the 18 claims plaintiff is presenting. That said, plaintiff need not provide every detailed fact in support 19 of his claims. Rather, plaintiff should provide a short, plain statement of each claim. See Fed. R. 20 Civ. P. 8(a). 21 Any amended complaint must show the federal court has jurisdiction, the action is brought 22 in the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It must 23 contain a request for particular relief. Plaintiff must identify as a defendant only persons who 24 personally participated in a substantial way in depriving plaintiff of a federal constitutional right. 25 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation 26 of a constitutional right if he does an act, participates in another’s act or omits to perform an act 27 he is legally required to do that causes the alleged deprivation). 28 //// 1 In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed. 2 R. Civ. P. 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed. 3 R. Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or 4 occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b). 5 The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d 6 1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any 7 heightened pleading standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P. 8 84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be 9 set forth in short and plain terms, simply, concisely and directly. See Swierkiewicz v. Sorema 10 N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified pleading system, 11 which was adopted to focus litigation on the merits of a claim.”); Fed. R. Civ. P. 8. 12 An amended complaint must be complete in itself without reference to any prior pleading. 13 E.D. Cal. R. 220. Once plaintiff files an amended complaint, all prior pleadings are superseded. 14 Any amended complaint should contain all of the allegations related to his claim in this action. If 15 plaintiff wishes to pursue his claims against the defendant, they must be set forth in the amended 16 complaint. 17 By signing an amended complaint, plaintiff certifies he has made reasonable inquiry and 18 has evidentiary support for his allegations, and for violation of this rule the court may impose 19 sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11. 20 MOTION TO APPOINT COUNSEL 21 Plaintiff filed a motion to appoint counsel. (ECF No. 14.) In support of his request, he 22 argues that he is unable to afford counsel, his incarceration prevents him from obtaining 23 investigative information, his imprisonment limits his ability to litigate, he has limited knowledge 24 of the law, and a trial will involve conflicting testimony and counsel would better enable him to 25 present evidence and call witnesses. (Id. at 1-2.) 26 The United States Supreme Court has ruled that district courts lack authority to require 27 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 28 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 1 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 2 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 3 The test for exceptional circumstances requires the court to evaluate the plaintiff’s 4 likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 5 light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 6 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 7 common to most prisoners, such as lack of legal education and limited law library access, do not 8 establish exceptional circumstances that would warrant a request for voluntary assistance of 9 counsel. 10 In the present case, the court does not find the required exceptional circumstances. 11 Plaintiff has cited nothing more than circumstances common to most inmates. Accordingly, the 12 court will deny the motion without prejudice. 13 The court notes that this is the third motion to appoint counsel plaintiff has filed in this 14 action. (See ECF Nos. 3, 11.) The two prior motions were based on the same arguments 15 presented in the instant motion. Plaintiff is advised that, under Federal Rule of Civil Procedure 16 11(b), a prisoner’s claims are considered frivolous if they “merely repeat [] pending or previously 17 litigated claims.” Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (quoting Bailey 18 v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988)). Plaintiff is cautioned that additional motions 19 based on the same arguments the court has previously rejected may result in the imposition of 20 sanctions. 21 CONCLUSION 22 For the reasons set forth above, IT IS HEREBY ORDERED that: 23 1. Plaintiff’s motion to appoint counsel (ECF No. 14) is denied. 24 2. Plaintiff’s first amended complaint (ECF No. 13) is dismissed with leave to amend. 25 3. Plaintiff is granted thirty days from the date of service of this order to file an amended 26 complaint that complies with the requirements of the Civil Rights Act, the Federal Rules 27 of Civil Procedure, and the Local Rules of Practice. The amended complaint must bear 28 //// 1 the docket number assigned to this case and must be labeled “Second Amended 2 Complaint.” 3 4. Failure to comply with this order will result in a recommendation that this action be 4 dismissed. 5 Dated: January 30, 2024 6 / | hal . 8 ORAH BARNES 9 UNITED STATES MAGISTRATE JUDGE

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