(PC) Turner, Jr. v. Salorio

• Court: District Court, E.D. California
• Decided: January 28, 2020
• Docket: 1:19-cv-01620
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 STEVEN DEON TURNER, JR., Case No. 1:19-cv-01620-DAD-BAM (PC) 12 Plaintiff, SCREENING ORDER GRANTING PLAINTIFF LEAVE TO FILE AMENDED 13 v. COMPLAINT 14 R. SALORIO, et al., (ECF No. 1) 15 Defendants. THIRTY-DAY DEADLINE 16 17 18 19 Plaintiff Steven Deon Turner, Jr. (“Plaintiff”) is a state prisoner proceeding pro se and in 20 forma pauperis in this civil rights action under 42 U.S.C. § 1983. Plaintiff’s complaint, filed on 21 November 8, 2019, is currently before the Court for screening. (ECF No. 1.) 22 I. Screening Requirement and Standard 23 The Court is required to screen complaints brought by prisoners seeking relief against a 24 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 25 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 26 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 27 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b). 28 1 A complaint must contain “a short and plain statement of the claim showing that the 2 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 3 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 4 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 5 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken 6 as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, 7 Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 8 To survive screening, Plaintiff’s claims must be facially plausible, which requires 9 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 10 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. 11 Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted 12 unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the 13 plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 14 II. Plaintiff’s Allegations 15 Plaintiff is currently housed at the California Correctional Institution in Tehachapi, 16 California, where the events in the complaint are alleged to have occurred. Plaintiff names the 17 following defendants in their individual and official capacities: (1) Correctional Officer R. 18 Salorio; and (2) Mail Room Staff E. Atencio. 19 In Claim I, Plaintiff alleges that on October 13, 2019, he turned in confidential mail 20 addressed to Alex Padilla, Secretary of State, with a proof of service attached in the form of a 21 Form 22. The Form 22 was signed by Defendant Salorio, confirming that Plaintiff was sending 22 “confidential/legal mail” to Alex Padilla. Plaintiff explains that the mail addressed to Alex 23 Padilla was a request for the production of documents demanding the official bonds of William 24 Joe Sullivan, A. Gray, R. Martin, M. Munoz, D. Johnson, A. Gomez, C. Butler, J. Busby, S. 25 Snyder, K. Hosey, and M. Boutte. On October 23, 2019, Defendant E. Atencio sent Plaintiff an 26 outgoing legal mail log, with a 22 form attached, showing that Plaintiff’s mail addressed to Alex 27 Padilla never left the institution. Plaintiff claims that Defendant Salorio is guilty of mail theft and 28 mail fraud. Plaintiff further claims that Defendant Salorio breached his contract/oath by stealing 1 Plaintiff’s legal mail addressed to the Secretary of State and should be punished according to 18 2 U.S.C. §§ 241 and 242. 3 In Claim II, Plaintiff alleges that on October 17, 2019, Defendant Atencio opened 4 Plaintiff’s legal mail outside of Plaintiff’s presence. Plaintiff asserts that the letter came from 5 CAIR Council on American Islamic Relations. Defendant Atencio cannot explain why he opened 6 Plaintiff’s mail outside of Plaintiff’s presence because “on the back of the envelope it has 7 ‘LEGAL’ twice.” (ECF No. 1 at 6.) Plaintiff claims that Defendant Atencio’s actions were not in 8 error because the notice was on the envelope before Defendant Atencio opened it. Plaintiff 9 claims that Defendant Atencio breached his contract/oath by violation the Bill of Rights and 10 opening Plaintiff’s legal mail outside of Plaintiff’s presence. 11 In Claim III, Plaintiff alleges that Defendants Salorio and Atencio are guilty of violating 12 the Constitution as it applies to the oath of office, the operational manual and the law enforcement 13 code of ethics/peace officer’s oath. Plaintiff further alleges that defendants and the institution 14 have maintained a pattern and consistent disregard of his right to petition the government for 15 redress of grievances and should be punished. 16 As relief, Plaintiff seeks declaratory and injunctive relief, punishment of defendants, and 17 compensatory and punitive damages. 18 III. Discussion 19 A. Exhaustion of Administrative Remedies 20 Section 1997e(a) of the Prison Litigation Reform Act of 1995 (“PLRA”) provides that 21 “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any 22 other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until 23 such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are 24 required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 549 25 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion 26 is required regardless of the relief sought by the prisoner and regardless of the relief offered by 27 the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and the exhaustion requirement applies 28 to all prisoner suits relating to prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002). 1 “[T]o properly exhaust administrative remedies prisoners ‘must complete the 2 administrative review process in accordance with the applicable procedural rules,’ [ ]—rules that 3 are defined not by the PLRA, but by the prison grievance process itself.” Jones, 549 U.S. at 218 4 (quoting Woodford v. Ngo, 548 U.S. 81, 88 (2006)). The State of California provides its 5 prisoners the right to appeal administratively “any policy, decision, action, condition, or omission 6 by the department or its staff that the inmate or parolee can demonstrate as having a material 7 adverse effect upon his or her health, safety, or welfare.” Cal. Code Regs. tit. 15 § 3084.1(a). The 8 process is initiated by submitting a CDCR Form 602 (“602 form”). Id. at § 3084.2(a). Three 9 levels of appeal are involved, including the first level, second level, and third level. Id. at § 10 3084.7. The third level of review exhausts administrative remedies. Id. at § 3084.7(d)(3). 11 In this case, Plaintiff neither alleges exhaustion of administrative remedies nor provides 12 evidence of exhaustion as to his claims. If Plaintiff elects to amend his complaint, he must allege 13 whether he properly exhausted his claims or was otherwise excused from the mandatory 14 exhaustion requirement. If the Court concludes that Plaintiff has failed to exhaust available 15 remedies, the proper remedy is dismissal without prejudice of the portions of the complaint barred 16 by § 1997e(a). See Jones, 549 U.S. at 223-24; Lira v. Herrera, 427 F.3d 1164, 1175-76 (9th Cir. 17 2005). 18 B. Outgoing Mail 19 Plaintiff appears to allege that Defendant Salorio interfered with his outgoing mail on one 20 occasion. Prison inmates enjoy a First Amendment right to send and receive mail. Witherow v. 21 Paff, 52 F.3d 264, 265 (9th Cir. 1995). However, a temporary delay or isolated incident of mail 22 interference is usually insufficient to establish a constitutional violation. See Crofton v. Roe, 170 23 F.3d 957, 961 (9th Cir. 1999); Zaiza v. Tamplen, No. 2:15–cv–0447–KJM–EFB P, 2016 WL 24 2930877, at *4 (E.D. Cal. May 19, 2016) (“An isolated incident of mail interference or tampering 25 is usually insufficient to establish a constitutional violation.”). Plaintiff’s allegations that 26 Defendant Salorio interfered with Plaintiff’s outgoing mail on one occasion are not sufficient to 27 state a cognizable claim. 28 /// 1 C. Legal Mail 2 Plaintiff alleges that Defendant Atencio opened Plaintiff’s legal mail outside of Plaintiff’s 3 presence on one occasion. “[P]risoners have a protected First Amendment interest in having 4 properly marked legal mail opened only in their presence.” Hayes v. Idaho Corr. Ctr., 849 F.3d 5 1204, 1211 (9th Cir. 2017) (concluding the protected First Amendment interest extends to civil 6 legal mail). Consistent with the First Amendment, prison officials may (1) require that mail from 7 attorneys be identified as such and (2) open such correspondence in the presence of the prisoner 8 for visual inspection. See Wolff v. McDonnell, 418 U.S. 539, 576–77 (1974). 9 As with Plaintiff’s claim involving Defendant Salorio, Plaintiff has not alleged that the 10 event involving Defendant Atencio was anything more than an isolated incident, which is 11 insufficient to state a constitutional claim. Further, according exhibits attached to the complaint, 12 the envelope at issue was stamped as “OPENED IN ERROR IN C.C.I. MAILROOM.” (ECF No. 13 1 at 13.) An unintentional violation amounts at most to negligence, which does not give rise to 14 constitutional claims under § 1983. Stevenson v. Koskey, 877 F.2d 1435, 1440-41 (9th Cir. 15 1989); see also Watkins v. Curry, No. C 10-2539 SI (pr), 2011 WL 5079532, at *3 (N.D. Cal. 16 Oct. 25, 2011) (“Absent evidence of a broader plan or course of conduct to censor plaintiff’s mail 17 unconstitutionally, an honest error by prison officials does not justify relief under § 1983). 18 Further, it appears that the mail was returned to Plaintiff and it unclear what, if any, harm 19 occurred. Accordingly, Plaintiff fails to state a cognizable claim for relief against Defendant 20 Atencio. 21 D. Criminal Prosecution 22 Plaintiff appears to seek referral of defendants for criminal prosecution for alleged 23 violations of 18 U.S.C. §§ 241 and 242. However, sections 241 and 242 “do not provide for a 24 private right of action.” Ray, Jr. v. Friedlander, No. C 10-1107 SI (pr), 2010 WL 3464453, at *1 25 (N.D. Cal. Sept. 1, 2010) (citing Peabody v. United States, 394 F.2d 175, 177 (9th Cir.1968)). As 26 a private citizen, Plaintiff has no authority to criminally prosecute anyone. Ray, Jr., 2010 WL 27 3464453 at *1. The complaint is legally frivolous insofar as it attempts to initiate a criminal 28 prosecution of the defendants. 1 E. State Law Claims 2 Under 28 U.S.C. § 1367(a), in any civil action in which the district court has original 3 jurisdiction, the “district courts shall have supplemental jurisdiction over all other claims that are 4 so related to claims in the action within such original jurisdiction that they form part of the same 5 case or controversy under Article III of the United States Constitution,” except as provided in 6 subsections (b) and (c). The Supreme Court has stated that “if the federal claims are dismissed 7 before trial, . . . the state claims should be dismissed as well.” United Mine Workers of Am. v. 8 Gibbs, 383 U.S. 715, 726 (1966). 9 Although the Court may exercise supplemental jurisdiction over state law claims, Plaintiff 10 must first have a cognizable claim for relief under federal law. 28 U.S.C. § 1367. As Plaintiff has 11 not stated a cognizable claim for relief under federal law, the Court declines to screen Plaintiff's 12 purported state law claims. 13 Further, to the extent Plaintiff seeks to bring any state law tort claims against defendants, 14 such as negligence, the Government Claims Act requires exhaustion of those claims with the 15 California Victim Compensation and Government Claims Board. Plaintiff is required to 16 specifically allege compliance in his complaint. Shirk v. Vista Unified Sch. Dist., 42 Cal. 4th 201, 17 208–09 (Cal. 2007); State v. Superior Court of Kings Cty. (Bodde), 32 Cal. 4th 1234, 1239 (Cal. 18 2004); Mabe v. San Bernardino Cty. Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1111 (9th Cir. 19 2001); Mangold v. California Pub. Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995); Karim– 20 Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 627 (9th Cir. 1988). Plaintiff has failed to 21 allege compliance with the Government Claims Act. 22 F. Declaratory Relief 23 In addition to monetary damages, Plaintiff seeks a declaration that his rights were 24 violated. “A declaratory judgment, like other forms of equitable relief, should be granted only as 25 a matter of judicial discretion, exercised in the public interest.” Eccles v. Peoples Bank of 26 Lakewood Village, 333 U.S. 426, 431 (1948). “Declaratory relief should be denied when it will 27 neither serve a useful purpose in clarifying and settling the legal relations in issue nor terminate 28 the proceedings and afford relief from the uncertainty and controversy faced by the parties.” 1 United States v. Washington, 759 F.2d 1353, 1357 (9th Cir. 1985). In the event that this action 2 reaches trial and the jury returns a verdict in favor of Plaintiff, the verdict will be a finding that 3 Plaintiff's constitutional rights were violated. Accordingly, a declaration that any defendant 4 violated Plaintiff's rights is unnecessary. 5 IV. Conclusion and Order 6 For the reasons stated, Plaintiff’s complaint fails to adequately allege exhaustion of 7 administrative remedies and fails to state a cognizable claim for relief. As Plaintiff is proceeding 8 pro se, the Court will grant Plaintiff an opportunity to amend his complaint to cure the above- 9 identified deficiencies to the extent he is able to do so in good faith. Lopez v. Smith, 203 F.3d 10 1122, 1130 (9th Cir. 2000). 11 Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what 12 each named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 556 13 U.S. at 678-79, 129 S.Ct. at 1948-49. Although accepted as true, the “[f]actual allegations must 14 be [sufficient] to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 15 555 (citations omitted). 16 Additionally, Plaintiff may not change the nature of this suit by adding new, unrelated 17 claims in his first amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no 18 “buckshot” complaints). 19 Finally, Plaintiff is advised that an amended complaint supersedes the original complaint. 20 Lacey v. Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012). Therefore, Plaintiff’s amended 21 complaint must be “complete in itself without reference to the prior or superseded pleading.” 22 Local Rule 220. 23 Based on the foregoing, it is HEREBY ORDERED that: 24 1. The Clerk’s Office shall send Plaintiff a complaint form; 25 2. Within thirty (30) days from the date of service of this order, Plaintiff shall file an 26 amended complaint curing the deficiencies identified by the Court in this order or file a 27 notice of voluntary dismissal; and 28 3. If Plaintiff fails to file an amended complaint in compliance with this order, the 1 Court will recommend dismissal of this action, with prejudice, for failure to obey a court 2 order and for failure to state a claim. 3 IT IS SO ORDERED. 4

5 Dated: January 28, 2020 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 6

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