1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DION JERMAINE RANDOL VACCARO, No. 2:22-cv-1984-EFB (PC) 12 Plaintiff, 13 v. ORDER 14 SAPIEN, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel1 in an action brought under 42 18 U.S.C. § 1983. In addition to filing a complaint, he has filed an application for leave to proceed 19 in forma pauperis pursuant to 28 U.S.C. § 1915. 20 Application to Proceed in Forma Pauperis 21 The court has reviewed plaintiff’s application and finds that it makes the showing required 22 by 28 U.S.C. § 1915(a)(1) and (2). Accordingly, by separate order, the court directs the agency 23 having custody of plaintiff to collect and forward the appropriate monthly payments for the filing 24 fee as set forth in 28 U.S.C. § 1915(b)(1) and (2). 25 ///// 26 ///// 27 1 The court notes, in response to plaintiff’s request for proof of the same, that he proceeds 28 pro se. See ECF No. 5. The Clerk of the Court shall terminate ECF No. 5. 1 Screening Standards 2 Federal courts must engage in a preliminary screening of cases in which prisoners seek 3 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 4 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 5 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 6 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 7 relief.” Id. § 1915A(b). 8 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 9 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 10 plain 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 Atl. Corp. v. 12 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 13 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 14 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 15 U.S. 662, 679 (2009). 16 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 17 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 18 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 19 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 20 678. 21 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 22 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 23 content that allows the court to draw the reasonable inference that the defendant is liable for the 24 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 25 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 26 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 27 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 28 ///// 1 Screening Order 2 Plaintiff’s claim is that in October of 2021, defendants Sapien, Wilson, Plassmeyer, 3 D’Agostini, Incompero, and Houlston admitted to stealing mail containing “semi-nude” pictures 4 of plaintiff’s wife. ECF No. 1 at 7-8. As discussed below, plaintiff’s complaint is dismissed 5 with leave to amend for failure to state a claim upon which relief could be granted. 6 First, an isolated incident of tampering with a prisoner’s non-legal mail generally does not 7 give rise to a constitutional violation. See Davis v. Goord, 320 F.3d 346, 351 (2d. Cir. 2003) 8 (holding that “an isolated incident of mail tampering is usually insufficient to establish a 9 constitutional violation.”); Smith v. Maschner, 899 F.2d 940, 944 (10th Cir. 1990) (holding that 10 an isolated incident of mail interference, absent any evidence of improper motive, does not give 11 rise to a constitutional violation); Watkins v. Curry, 2011 U.S. Dist. LEXIS 123356, 2011 WL 12 5079532, at *3 (N.D. Cal. Oct. 25, 2011) (citing Lingo v. Boone, 402 F. Supp. 768, 773 (C.D. 13 Cal. 1975) (“Absent evidence of a broader plan or course of conduct to censor plaintiff’s mail 14 unconstitutionally, an honest error by prison officials does not justify relief under § 1983.”). 15 Plaintiff’s allegations show, at worst, a single instance of mail interference, which does not give 16 rise to a constitutional violation. 17 Second, to the extent plaintiff is alleging that the stolen pictures amount to a negligent or 18 unauthorized deprivation of property by state officials, the claim is not actionable. This type of 19 federal due process claim is not cognizable where the state provides an adequate post-deprivation 20 remedy. Hudson v. Palmer, 468 U.S. 517, 532-33 (1984). California provides an adequate 21 remedy for inmates who suffer property loss at the hands of prison employees. Barnett v. Centoni, 22 31 F.3d 813, 816-17 (9th Cir. 1994) (citing Cal. Gov’t Code §§ 844.6, 900-915 and Hudson v. 23 Palmer, 468 U.S. 517, 533 (1984)). 24 Finally, plaintiff has named Sheriff D’Agostini as a defendant simply because of his role 25 as a supervisor, which is also not a proper basis for liability. See Taylor v. List, 880 F.2d 1040, 26 1045 (9th Cir. 1989). 27 Although it appears unlikely that plaintiff can cure the defects in his complaint by way of 28 amendment, the court will grant him leave to amend in an abundance of caution. 1 Leave to Amend 2 Plaintiff is cautioned that any amended complaint must identify as a defendant only 3 persons who personally participated in a substantial way in depriving him of his constitutional 4 rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the 5 deprivation of a constitutional right if he does an act, participates in another’s act or omits to 6 perform an act he is legally required to do that causes the alleged deprivation). Plaintiff may also 7 include any allegations based on state law that are so closely related to his federal allegations that 8 “they form the same case or controversy.” See 28 U.S.C. § 1367(a).
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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 DION JERMAINE RANDOL VACCARO, No. 2:22-cv-1984-EFB (PC) 12 Plaintiff, 13 v. ORDER 14 SAPIEN, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel1 in an action brought under 42 18 U.S.C. § 1983. In addition to filing a complaint, he has filed an application for leave to proceed 19 in forma pauperis pursuant to 28 U.S.C. § 1915. 20 Application to Proceed in Forma Pauperis 21 The court has reviewed plaintiff’s application and finds that it makes the showing required 22 by 28 U.S.C. § 1915(a)(1) and (2). Accordingly, by separate order, the court directs the agency 23 having custody of plaintiff to collect and forward the appropriate monthly payments for the filing 24 fee as set forth in 28 U.S.C. § 1915(b)(1) and (2). 25 ///// 26 ///// 27 1 The court notes, in response to plaintiff’s request for proof of the same, that he proceeds 28 pro se. See ECF No. 5. The Clerk of the Court shall terminate ECF No. 5. 1 Screening Standards 2 Federal courts must engage in a preliminary screening of cases in which prisoners seek 3 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 4 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 5 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 6 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 7 relief.” Id. § 1915A(b). 8 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 9 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 10 plain 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 Atl. Corp. v. 12 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 13 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 14 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 15 U.S. 662, 679 (2009). 16 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 17 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 18 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 19 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 20 678. 21 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 22 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 23 content that allows the court to draw the reasonable inference that the defendant is liable for the 24 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 25 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 26 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 27 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 28 ///// 1 Screening Order 2 Plaintiff’s claim is that in October of 2021, defendants Sapien, Wilson, Plassmeyer, 3 D’Agostini, Incompero, and Houlston admitted to stealing mail containing “semi-nude” pictures 4 of plaintiff’s wife. ECF No. 1 at 7-8. As discussed below, plaintiff’s complaint is dismissed 5 with leave to amend for failure to state a claim upon which relief could be granted. 6 First, an isolated incident of tampering with a prisoner’s non-legal mail generally does not 7 give rise to a constitutional violation. See Davis v. Goord, 320 F.3d 346, 351 (2d. Cir. 2003) 8 (holding that “an isolated incident of mail tampering is usually insufficient to establish a 9 constitutional violation.”); Smith v. Maschner, 899 F.2d 940, 944 (10th Cir. 1990) (holding that 10 an isolated incident of mail interference, absent any evidence of improper motive, does not give 11 rise to a constitutional violation); Watkins v. Curry, 2011 U.S. Dist. LEXIS 123356, 2011 WL 12 5079532, at *3 (N.D. Cal. Oct. 25, 2011) (citing Lingo v. Boone, 402 F. Supp. 768, 773 (C.D. 13 Cal. 1975) (“Absent evidence of a broader plan or course of conduct to censor plaintiff’s mail 14 unconstitutionally, an honest error by prison officials does not justify relief under § 1983.”). 15 Plaintiff’s allegations show, at worst, a single instance of mail interference, which does not give 16 rise to a constitutional violation. 17 Second, to the extent plaintiff is alleging that the stolen pictures amount to a negligent or 18 unauthorized deprivation of property by state officials, the claim is not actionable. This type of 19 federal due process claim is not cognizable where the state provides an adequate post-deprivation 20 remedy. Hudson v. Palmer, 468 U.S. 517, 532-33 (1984). California provides an adequate 21 remedy for inmates who suffer property loss at the hands of prison employees. Barnett v. Centoni, 22 31 F.3d 813, 816-17 (9th Cir. 1994) (citing Cal. Gov’t Code §§ 844.6, 900-915 and Hudson v. 23 Palmer, 468 U.S. 517, 533 (1984)). 24 Finally, plaintiff has named Sheriff D’Agostini as a defendant simply because of his role 25 as a supervisor, which is also not a proper basis for liability. See Taylor v. List, 880 F.2d 1040, 26 1045 (9th Cir. 1989). 27 Although it appears unlikely that plaintiff can cure the defects in his complaint by way of 28 amendment, the court will grant him leave to amend in an abundance of caution. 1 Leave to Amend 2 Plaintiff is cautioned that any amended complaint must identify as a defendant only 3 persons who personally participated in a substantial way in depriving him of his constitutional 4 rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the 5 deprivation of a constitutional right if he does an act, participates in another’s act or omits to 6 perform an act he is legally required to do that causes the alleged deprivation). Plaintiff may also 7 include any allegations based on state law that are so closely related to his federal allegations that 8 “they form the same case or controversy.” See 28 U.S.C. § 1367(a). 9 The amended complaint must also contain a caption including the names of all defendants. 10 Fed. R. Civ. P. 10(a). 11 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See 12 George, 507 F.3d at 607. Nor, as mentioned above, may he bring unrelated claims against 13 multiple defendants. Id. 14 Any amended complaint must be written or typed so that it so that it is complete in itself 15 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 16 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 17 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 18 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 19 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 20 1967)). 21 Any amended complaint should be as concise as possible in fulfilling the above 22 requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of procedural or factual 23 background which has no bearing on his legal claims. He should also take pains to ensure that his 24 amended complaint is as legible as possible. This refers not only to penmanship, but also spacing 25 and organization. Plaintiff should carefully consider whether each of the defendants he names 26 actually had involvement in the constitutional violations he alleges. A “scattershot” approach in 27 which plaintiff names dozens of defendants will not be looked upon favorably by the court. 28 ///// 1 Conclusion 2 Accordingly, it is ORDERED that: 3 1. Plaintiff's application to proceed in forma pauperis (ECF No. 8) is granted; 4 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in 5 accordance with the notice to the California Department of Corrections and 6 Rehabilitation filed concurrently herewith; 7 3. The Clerk of the Court shall terminate ECF No. 5; 8 4. Plaintiff's complaint (ECF No. 1) is dismissed with leave to amend within 30 days of 9 service of this order; and 10 5. Failure to comply with any part of this this order may result in dismissal of this action. 1] 12 | Dated: January 5, 2023. □□ PDEA EDMUND F. BRENNAN 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28